Typos.

[text-free-culture-lessig.git] / freeculture.pot

# SOME DESCRIPTIVE TITLE
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# FIRST AUTHOR <EMAIL@ADDRESS>, YEAR.
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#. type: Content of the copy entity
#: freeculture.xml:12
msgid "©"
msgstr ""

#. type: Attribute 'lang' of: <book>
#: freeculture.xml:18
msgid "en"
msgstr ""

#. type: Content of: <book><bookinfo><title>
#: freeculture.xml:20
msgid "Free Culture"
msgstr ""

#. type: Content of: <book><bookinfo>
#: freeculture.xml:22
msgid "<abbrev>\"freeculture\"</abbrev>"
msgstr ""

#. type: Content of: <book><dedication><para>
#: freeculture.xml:24 freeculture.xml:180
msgid ""
"HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL "
"CREATIVITY"
msgstr ""

#. type: Content of: <book><bookinfo>
#: freeculture.xml:27
msgid "<pubdate>2004-03-25</pubdate>"
msgstr ""

#. type: Content of: <book><bookinfo><releaseinfo>
#: freeculture.xml:29
msgid "Version 2004-02-10"
msgstr ""

#. type: Content of: <book><bookinfo><authorgroup><author><firstname>
#: freeculture.xml:33
msgid "Lawrence"
msgstr ""

#. type: Content of: <book><bookinfo><authorgroup><author><surname>
#: freeculture.xml:34
msgid "Lessig"
msgstr ""

#. type: Content of: <book><bookinfo><subjectset><subject><subjectterm>
#: freeculture.xml:43
msgid "Intellectual property&mdash;United States."
msgstr ""

#. type: Content of: <book><bookinfo><subjectset><subject><subjectterm>
#: freeculture.xml:46
msgid "Mass media&mdash;United States."
msgstr ""

#. type: Content of: <book><bookinfo><subjectset><subject><subjectterm>
#: freeculture.xml:49
msgid "Technological innovations&mdash;United States."
msgstr ""

#. type: Content of: <book><bookinfo><subjectset><subject><subjectterm>
#: freeculture.xml:52
msgid "Art&mdash;United States."
msgstr ""

#. type: Content of: <book><bookinfo><publisher><address>
#: freeculture.xml:59
#, no-wrap
msgid "<city>New York</city>"
msgstr ""

#. type: Content of: <book><bookinfo>
#: freeculture.xml:57
msgid ""
"<publisher> <publishername>The Penguin Press</publishername> <placeholder "
"type=\"address\" id=\"0\"/> </publisher> <copyright> <year>2004</year> "
"<holder>Lawrence Lessig</holder> </copyright>"
msgstr ""

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#: freeculture.xml:69
msgid ""
"<imageobject> <imagedata fileref=\"images/cc.png\" contentdepth=\"3em\" "
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"align=\"center\"/> </imageobject>"
msgstr ""

#. type: Content of: <book><bookinfo><legalnotice><para><inlinemediaobject><textobject><phrase>
#: freeculture.xml:76
msgid "Creative Commons, Some rights reserved"
msgstr ""

#. type: Content of: <book><bookinfo><legalnotice><para>
#: freeculture.xml:68
msgid "<placeholder type=\"inlinemediaobject\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><bookinfo><legalnotice><para>
#: freeculture.xml:82
msgid ""
"This version of <citetitle>Free Culture</citetitle> is licensed under a "
"Creative Commons license. This license permits non-commercial use of this "
"work, so long as attribution is given.  For more information about the "
"license, click the icon above, or visit <ulink "
"url=\"http://creativecommons.org/licenses/by-nc/1.0/\">http://creativecommons.org/licenses/by-nc/1.0/</ulink>"
msgstr ""

#. type: Content of: <book><bookinfo><abstract><title>
#: freeculture.xml:91
msgid "ABOUT THE AUTHOR"
msgstr ""

#. type: Content of: <book><bookinfo><abstract><para>
#: freeculture.xml:93
msgid ""
"LAWRENCE LESSIG (<ulink "
"url=\"http://www.lessig.org\">http://www.lessig.org</ulink>), professor of "
"law and a John A. Wilson Distinguished Faculty Scholar at Stanford Law "
"School, is founder of the Stanford Center for Internet and Society and is "
"chairman of the Creative Commons (<ulink "
"url=\"http://creativecommons.org\">http://creativecommons.org</ulink>).  The "
"author of The Future of Ideas (Random House, 2001) and Code: And Other Laws "
"of Cyberspace (Basic Books, 1999), Lessig is a member of the boards of the "
"Public Library of Science, the Electronic Frontier Foundation, and Public "
"Knowledge. He was the winner of the Free Software Foundation's Award for the "
"Advancement of Free Software, twice listed in BusinessWeek's \"e.biz 25,\" "
"and named one of Scientific American's \"50 visionaries.\" A graduate of the "
"University of Pennsylvania, Cambridge University, and Yale Law School, "
"Lessig clerked for Judge Richard Posner of the U.S. Seventh Circuit Court of "
"Appeals."
msgstr ""

#.  testing different ways to tag the cover page 
#
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#
#.      <imagedata fileref="images/cover_thumbnail.png" format="PNG" width="444" />
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#.    <imageobject remap="xs" role="front-small">
#.      <imagedata fileref="images/cover_thumbnail.png" format="PNG" width="444" />
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#.    <imageobject remap="cs" role="thumbnail">
#.      <imagedata fileref="images/cover_thumbnail.png" format="PNG" width="444" />
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#: freeculture.xml:114
msgid ""
"<imageobject remap=\"lrg\" role=\"front-large\"> <imagedata "
"fileref=\"images/cover.png\" format=\"PNG\" width=\"444\" /> </imageobject>"
msgstr ""

#.  LCCN from
#.      http://catalog.loc.gov/cgi-bin/Pwebrecon.cgi?v3=1&DB=local&CMD=010a+2003063276&CNT=10+records+per+page
#.      
#. type: Content of: <book><bookinfo>
#: freeculture.xml:112
msgid ""
"  <placeholder type=\"mediaobject\" id=\"0\"/> <biblioid "
"class=\"isbn\">1-59420-006-8</biblioid> <biblioid "
"class=\"libraryofcongress\">2003063276</biblioid>"
msgstr ""

#. type: Content of: <book><dedication><para>
#: freeculture.xml:142
msgid "You can buy a copy of this book by clicking on one of the links below:"
msgstr ""

#. type: Content of: <book><dedication><itemizedlist><listitem><para>
#: freeculture.xml:145
msgid "<ulink url=\"http://www.amazon.com/\">Amazon</ulink>"
msgstr ""

#. type: Content of: <book><dedication><itemizedlist><listitem><para>
#: freeculture.xml:146
msgid "<ulink url=\"http://www.barnesandnoble.com/\">B&amp;N</ulink>"
msgstr ""

#. type: Content of: <book><dedication><itemizedlist><listitem><para>
#: freeculture.xml:147
msgid "<ulink url=\"http://www.penguin.com/\">Penguin</ulink>"
msgstr ""

#. type: Content of: <book><dedication><para>
#: freeculture.xml:156
msgid "ALSO BY LAWRENCE LESSIG"
msgstr ""

#. type: Content of: <book><dedication><para>
#: freeculture.xml:159
msgid "The Future of Ideas: The Fate of the Commons in a Connected World"
msgstr ""

#. type: Content of: <book><dedication><para>
#: freeculture.xml:162
msgid "Code: And Other Laws of Cyberspace"
msgstr ""

#. type: Content of: <book><dedication><para>
#: freeculture.xml:169
msgid "THE PENGUIN PRESS, NEW YORK"
msgstr ""

#. type: Content of: <book><dedication><para>
#: freeculture.xml:176
msgid "FREE CULTURE"
msgstr ""

#. type: Content of: <book><dedication><para>
#: freeculture.xml:186
msgid "LAWRENCE LESSIG"
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:192
msgid ""
"THE PENGUIN PRESS, a member of Penguin Group (USA) Inc.  375 Hudson Street "
"New York, New York"
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:196
msgid "Copyright &copy; Lawrence Lessig.  All rights reserved."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:199
msgid ""
"Excerpt from an editorial titled \"The Coming of Copyright Perpetuity,\" "
"<citetitle>The New York Times</citetitle>, January 16, 2003. Copyright "
"&copy; 2003 by The New York Times Co.  Reprinted with permission."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:204
msgid ""
"Cartoon in <xref linkend=\"fig-1711\"/> by Paul Conrad, copyright Tribune "
"Media Services, Inc.  All rights reserved. Reprinted with permission."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:208
msgid ""
"Diagram in <xref linkend=\"fig-1761\"/> courtesy of the office of FCC "
"Commissioner, Michael J. Copps."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:212
msgid "Library of Congress Cataloging-in-Publication Data"
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:215
msgid ""
"Lessig, Lawrence.  Free culture : how big media uses technology and the law "
"to lock down culture and control creativity / Lawrence Lessig."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:220
msgid "p. cm."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:223
msgid "Includes index."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:226
msgid "ISBN 1-59420-006-8 (hardcover)"
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:230
msgid ""
"1. Intellectual property&mdash;United States. 2. Mass media&mdash;United "
"States."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:233
msgid ""
"3. Technological innovations&mdash;United States. 4. Art&mdash;United "
"States. I. Title."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:236
msgid "KF2979.L47"
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:239
msgid "343.7309'9&mdash;dc22"
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:242
msgid "This book is printed on acid-free paper."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:245
msgid "Printed in the United States of America"
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:248
msgid "1 3 5 7 9 10 8 6 4"
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:251
msgid "Designed by Marysarah Quinn"
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:255
msgid "&translationblock;"
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:259
msgid ""
"Without limiting the rights under copyright reserved above, no part of this "
"publication may be reproduced, stored in or introduced into a retrieval "
"system, or transmitted, in any form or by any means (electronic, mechanical, "
"photocopying, recording or otherwise), without the prior written permission "
"of both the copyright owner and the above publisher of this book."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:267
msgid ""
"The scanning, uploading, and distribution of this book via the Internet or "
"via any other means without the permission of the publisher is illegal and "
"punishable by law.  Please purchase only authorized electronic editions and "
"do not participate in or encourage electronic piracy of copyrighted "
"materials. Your support of the author's rights is appreciated."
msgstr ""

#. type: Content of: <book><dedication><para>
#: freeculture.xml:279
msgid ""
"To Eric Eldred&mdash;whose work first drew me to this cause, and for whom it "
"continues still."
msgstr ""

#. type: Content of: <book><lot><title>
#: freeculture.xml:287
msgid "List of figures"
msgstr ""

#. type: Content of: <book><preface><title>
#: freeculture.xml:349
msgid "PREFACE"
msgstr ""

#. type: Content of: <book><preface><indexterm><primary>
#: freeculture.xml:351
msgid "Pogue, David"
msgstr ""

#. type: Content of: <book><preface><para>
#: freeculture.xml:354
msgid ""
"At the end of his review of my first book, <citetitle>Code: And Other Laws "
"of Cyberspace</citetitle>, David Pogue, a brilliant writer and author of "
"countless technical and computer-related texts, wrote this:"
msgstr ""

#. type: Content of: <book><preface><blockquote><para><footnote><para>
#: freeculture.xml:364
msgid ""
"David Pogue, \"Don't Just Chat, Do Something,\" <citetitle>New York "
"Times</citetitle>, 30 January 2000."
msgstr ""

#. type: Content of: <book><preface><blockquote><para>
#: freeculture.xml:360
msgid ""
"Unlike actual law, Internet software has no capacity to punish. It doesn't "
"affect people who aren't online (and only a tiny minority of the world "
"population is). And if you don't like the Internet's system, you can always "
"flip off the modem.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><preface><para>
#: freeculture.xml:369
msgid ""
"Pogue was skeptical of the core argument of the book&mdash;that software, or "
"\"code,\" functioned as a kind of law&mdash;and his review suggested the "
"happy thought that if life in cyberspace got bad, we could always \"drizzle, "
"drazzle, druzzle, drome\"-like simply flip a switch and be back home. Turn "
"off the modem, unplug the computer, and any troubles that exist in "
"<emphasis>that</emphasis> space wouldn't \"affect\" us anymore."
msgstr ""

#.  PAGE BREAK 12 
#. type: Content of: <book><preface><para>
#: freeculture.xml:378
msgid ""
"Pogue might have been right in 1999&mdash;I'm skeptical, but maybe.  But "
"even if he was right then, the point is not right now: <citetitle>Free "
"Culture</citetitle> is about the troubles the Internet causes even after the "
"modem is turned off. It is an argument about how the battles that now rage "
"regarding life on-line have fundamentally affected \"people who aren't "
"online.\" There is no switch that will insulate us from the Internet's "
"effect."
msgstr ""

#. type: Content of: <book><preface><para>
#: freeculture.xml:389
msgid ""
"But unlike <citetitle>Code</citetitle>, the argument here is not much about "
"the Internet itself. It is instead about the consequence of the Internet to "
"a part of our tradition that is much more fundamental, and, as hard as this "
"is for a geek-wanna-be to admit, much more important."
msgstr ""

#. type: Content of: <book><preface><para><footnote><para>
#: freeculture.xml:401
msgid ""
"Richard M. Stallman, <citetitle>Free Software, Free Societies</citetitle> 57 "
"(Joshua Gay, ed. 2002)."
msgstr ""

#. type: Content of: <book><preface><para>
#: freeculture.xml:396
msgid ""
"That tradition is the way our culture gets made. As I explain in the pages "
"that follow, we come from a tradition of \"free culture\"&mdash;not \"free\" "
"as in \"free beer\" (to borrow a phrase from the founder of the free "
"software movement<placeholder type=\"footnote\" id=\"0\"/>), but \"free\" as "
"in \"free speech,\" \"free markets,\" \"free trade,\" \"free enterprise,\" "
"\"free will,\" and \"free elections.\" A free culture supports and protects "
"creators and innovators. It does this directly by granting intellectual "
"property rights. But it does so indirectly by limiting the reach of those "
"rights, to guarantee that follow-on creators and innovators remain "
"<emphasis>as free as possible</emphasis> from the control of the past. A "
"free culture is not a culture without property, just as a free market is not "
"a market in which everything is free. The opposite of a free culture is a "
"\"permission culture\"&mdash;a culture in which creators get to create only "
"with the permission of the powerful, or of creators from the past."
msgstr ""

#. type: Content of: <book><preface><para>
#: freeculture.xml:416
msgid ""
"If we understood this change, I believe we would resist it. Not \"we\" on "
"the Left or \"you\" on the Right, but we who have no stake in the particular "
"industries of culture that defined the twentieth century.  Whether you are "
"on the Left or the Right, if you are in this sense disinterested, then the "
"story I tell here will trouble you. For the changes I describe affect values "
"that both sides of our political culture deem fundamental."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:424 freeculture.xml:12830
msgid "CodePink Women in Peace"
msgstr ""

#. type: Content of: <book><chapter><para><indexterm><primary>
#: freeculture.xml:435 freeculture.xml:445 freeculture.xml:12843
msgid "Safire, William"
msgstr ""

#. type: Content of: <book><preface><para>
#: freeculture.xml:426
msgid ""
"We saw a glimpse of this bipartisan outrage in the early summer of 2003. As "
"the FCC considered changes in media ownership rules that would relax limits "
"on media concentration, an extraordinary coalition generated more than "
"700,000 letters to the FCC opposing the change.  As William Safire described "
"marching \"uncomfortably alongside CodePink Women for Peace and the National "
"Rifle Association, between liberal Olympia Snowe and conservative Ted "
"Stevens,\" he formulated perhaps most simply just what was at stake: the "
"concentration of power. And as he asked, <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><preface><blockquote><para><footnote><para>
#: freeculture.xml:443
msgid ""
"William Safire, \"The Great Media Gulp,\" <citetitle>New York "
"Times</citetitle>, 22 May 2003.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><preface><blockquote><para>
#: freeculture.xml:439
msgid ""
"Does that sound unconservative? Not to me. The concentration of "
"power&mdash;political, corporate, media, cultural&mdash;should be anathema "
"to conservatives. The diffusion of power through local control, thereby "
"encouraging individual participation, is the essence of federalism and the "
"greatest expression of democracy.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><preface><para>
#: freeculture.xml:450
msgid ""
"This idea is an element of the argument of <citetitle>Free "
"Culture</citetitle>, though my focus is not just on the concentration of "
"power produced by concentrations in ownership, but more importantly, if "
"because less visibly, on the concentration of power produced by a radical "
"change in the effective scope of the law. The law is changing; that change "
"is altering the way our culture gets made; that change should worry "
"you&mdash;whether or not you care about the Internet, and whether you're on "
"Safire's left or on his right.  The inspiration for the title and for much "
"of the argument of this book comes from the work of Richard Stallman and the "
"Free Software Foundation. Indeed, as I reread Stallman's own work, "
"especially the essays in <citetitle>Free Software, Free Society</citetitle>, "
"I realize that all of the theoretical insights I develop here are insights "
"Stallman described decades ago. One could thus well argue that this work is "
"\"merely\" derivative."
msgstr ""

#.  PAGE BREAK 14 
#. type: Content of: <book><preface><para>
#: freeculture.xml:466
msgid ""
"I accept that criticism, if indeed it is a criticism. The work of a lawyer "
"is always derivative, and I mean to do nothing more in this book than to "
"remind a culture about a tradition that has always been its own.  Like "
"Stallman, I defend that tradition on the basis of values. Like Stallman, I "
"believe those are the values of freedom. And like Stallman, I believe those "
"are values of our past that will need to be defended in our future. A free "
"culture has been our past, but it will only be our future if we change the "
"path we are on right now.  Like Stallman's arguments for free software, an "
"argument for free culture stumbles on a confusion that is hard to avoid, and "
"even harder to understand. A free culture is not a culture without property; "
"it is not a culture in which artists don't get paid. A culture without "
"property, or in which creators can't get paid, is anarchy, not "
"freedom. Anarchy is not what I advance here."
msgstr ""

#. type: Content of: <book><preface><para>
#: freeculture.xml:484
msgid ""
"Instead, the free culture that I defend in this book is a balance between "
"anarchy and control. A free culture, like a free market, is filled with "
"property. It is filled with rules of property and contract that get enforced "
"by the state. But just as a free market is perverted if its property becomes "
"feudal, so too can a free culture be queered by extremism in the property "
"rights that define it. That is what I fear about our culture today. It is "
"against that extremism that this book is written."
msgstr ""

#. type: Content of: <book><chapter><title>
#: freeculture.xml:499
msgid "INTRODUCTION"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:501
msgid ""
"On December 17, 1903, on a windy North Carolina beach for just shy of one "
"hundred seconds, the Wright brothers demonstrated that a heavier-than-air, "
"self-propelled vehicle could fly. The moment was electric and its importance "
"widely understood. Almost immediately, there was an explosion of interest in "
"this newfound technology of manned flight, and a gaggle of innovators began "
"to build upon it."
msgstr ""

#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:513
msgid ""
"St. George Tucker, <citetitle>Blackstone's Commentaries</citetitle> 3 (South "
"Hackensack, N.J.: Rothman Reprints, 1969), 18."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:509
msgid ""
"At the time the Wright brothers invented the airplane, American law held "
"that a property owner presumptively owned not just the surface of his land, "
"but all the land below, down to the center of the earth, and all the space "
"above, to \"an indefinite extent, upwards.\"<placeholder type=\"footnote\" "
"id=\"0\"/> For many years, scholars had puzzled about how best to interpret "
"the idea that rights in land ran to the heavens. Did that mean that you "
"owned the stars? Could you prosecute geese for their willful and regular "
"trespass?"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:522
msgid ""
"Then came airplanes, and for the first time, this principle of American "
"law&mdash;deep within the foundations of our tradition, and acknowledged by "
"the most important legal thinkers of our past&mdash;mattered. If my land "
"reaches to the heavens, what happens when United flies over my field? Do I "
"have the right to banish it from my property? Am I allowed to enter into an "
"exclusive license with Delta Airlines? Could we set up an auction to decide "
"how much these rights are worth?"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:530 freeculture.xml:543 freeculture.xml:574 freeculture.xml:593 freeculture.xml:996 freeculture.xml:1013 freeculture.xml:1059 freeculture.xml:8836 freeculture.xml:12226 freeculture.xml:12934
msgid "Causby, Thomas Lee"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:531 freeculture.xml:544 freeculture.xml:575 freeculture.xml:594 freeculture.xml:997 freeculture.xml:1014 freeculture.xml:1060 freeculture.xml:8837 freeculture.xml:12227 freeculture.xml:12935
msgid "Causby, Tinie"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:533
msgid ""
"In 1945, these questions became a federal case. When North Carolina farmers "
"Thomas Lee and Tinie Causby started losing chickens because of low-flying "
"military aircraft (the terrified chickens apparently flew into the barn "
"walls and died), the Causbys filed a lawsuit saying that the government was "
"trespassing on their land. The airplanes, of course, never touched the "
"surface of the Causbys' land. But if, as Blackstone, Kent, and Coke had "
"said, their land reached to \"an indefinite extent, upwards,\" then the "
"government was trespassing on their property, and the Causbys wanted it to "
"stop."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:546
msgid ""
"The Supreme Court agreed to hear the Causbys' case. Congress had declared "
"the airways public, but if one's property really extended to the heavens, "
"then Congress's declaration could well have been an unconstitutional "
"\"taking\" of property without compensation. The Court acknowledged that "
"\"it is ancient doctrine that common law ownership of the land extended to "
"the periphery of the universe.\" But Justice Douglas had no patience for "
"ancient doctrine. In a single paragraph, hundreds of years of property law "
"were erased. As he wrote for the Court,"
msgstr ""

#. type: Content of: <book><chapter><blockquote><para><footnote><para>
#: freeculture.xml:566
msgid ""
"United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find that "
"there could be a \"taking\" if the government's use of its land effectively "
"destroyed the value of the Causbys' land. This example was suggested to me "
"by Keith Aoki's wonderful piece, \"(Intellectual)  Property and Sovereignty: "
"Notes Toward a Cultural Geography of Authorship,\" <citetitle>Stanford Law "
"Review</citetitle> 48 (1996): 1293, 1333. See also Paul Goldstein, "
"<citetitle>Real Property</citetitle> (Mineola, N.Y.: Foundation Press, "
"1984), 1112&ndash;13.  <placeholder type=\"indexterm\" id=\"0\"/> "
"<placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><chapter><blockquote><para>
#: freeculture.xml:557
msgid ""
"[The] doctrine has no place in the modern world. The air is a public "
"highway, as Congress has declared. Were that not true, every "
"transcontinental flight would subject the operator to countless trespass "
"suits. Common sense revolts at the idea. To recognize such private claims to "
"the airspace would clog these highways, seriously interfere with their "
"control and development in the public interest, and transfer into private "
"ownership that to which only the public has a just claim.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:580
msgid "\"Common sense revolts at the idea.\""
msgstr ""

#.  PAGE BREAK 18 
#. type: Content of: <book><chapter><para>
#: freeculture.xml:583
msgid ""
"This is how the law usually works. Not often this abruptly or impatiently, "
"but eventually, this is how it works. It was Douglas's style not to "
"dither. Other justices would have blathered on for pages to reach the "
"conclusion that Douglas holds in a single line: \"Common sense revolts at "
"the idea.\" But whether it takes pages or a few words, it is the special "
"genius of a common law system, as ours is, that the law adjusts to the "
"technologies of the time. And as it adjusts, it changes. Ideas that were as "
"solid as rock in one age crumble in another."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:596
msgid ""
"Or at least, this is how things happen when there's no one powerful on the "
"other side of the change. The Causbys were just farmers. And though there "
"were no doubt many like them who were upset by the growing traffic in the "
"air (though one hopes not many chickens flew themselves into walls), the "
"Causbys of the world would find it very hard to unite and stop the idea, and "
"the technology, that the Wright brothers had birthed. The Wright brothers "
"spat airplanes into the technological meme pool; the idea then spread like a "
"virus in a chicken coop; farmers like the Causbys found themselves "
"surrounded by \"what seemed reasonable\" given the technology that the "
"Wrights had produced.  They could stand on their farms, dead chickens in "
"hand, and shake their fists at these newfangled technologies all they "
"wanted.  They could call their representatives or even file a lawsuit. But "
"in the end, the force of what seems \"obvious\" to everyone else&mdash;the "
"power of \"common sense\"&mdash;would prevail. Their \"private interest\" "
"would not be allowed to defeat an obvious public gain."
msgstr ""

#. type: Content of: <book><chapter><para><indexterm><primary>
#: freeculture.xml:625
msgid "Bell, Alexander Graham"
msgstr ""

#. type: Content of: <book><chapter><para><indexterm><primary>
#: freeculture.xml:626
msgid "Edison, Thomas"
msgstr ""

#. type: Content of: <book><chapter><para><indexterm><primary>
#: freeculture.xml:627
msgid "Faraday, Michael"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:614
msgid ""
"Edwin Howard Armstrong is one of America's forgotten inventor geniuses. He "
"came to the great American inventor scene just after the titans Thomas "
"Edison and Alexander Graham Bell. But his work in the area of radio "
"technology was perhaps the most important of any single inventor in the "
"first fifty years of radio. He was better educated than Michael Faraday, who "
"as a bookbinder's apprentice had discovered electric induction in 1831. But "
"he had the same intuition about how the world of radio worked, and on at "
"least three occasions, Armstrong invented profoundly important technologies "
"that advanced our understanding of radio.  <placeholder type=\"indexterm\" "
"id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> <placeholder "
"type=\"indexterm\" id=\"2\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:630
msgid ""
"On the day after Christmas, 1933, four patents were issued to Armstrong for "
"his most significant invention&mdash;FM radio. Until then, consumer radio "
"had been amplitude-modulated (AM) radio. The theorists of the day had said "
"that frequency-modulated (FM) radio could never work. They were right about "
"FM radio in a narrow band of spectrum.  But Armstrong discovered that "
"frequency-modulated radio in a wide band of spectrum would deliver an "
"astonishing fidelity of sound, with much less transmitter power and static."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:640
msgid ""
"On November 5, 1935, he demonstrated the technology at a meeting of the "
"Institute of Radio Engineers at the Empire State Building in New York "
"City. He tuned his radio dial across a range of AM stations, until the radio "
"locked on a broadcast that he had arranged from seventeen miles away. The "
"radio fell totally silent, as if dead, and then with a clarity no one else "
"in that room had ever heard from an electrical device, it produced the sound "
"of an announcer's voice: \"This is amateur station W2AG at Yonkers, New "
"York, operating on frequency modulation at two and a half meters.\""
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:651
msgid "The audience was hearing something no one had thought possible:"
msgstr ""

#. type: Content of: <book><chapter><blockquote><para><footnote><para>
#: freeculture.xml:662
msgid ""
"Lawrence Lessing, <citetitle>Man of High Fidelity: Edwin Howard "
"Armstrong</citetitle> (Philadelphia: J. B. Lipincott Company, 1956), 209."
msgstr ""

#. type: Content of: <book><chapter><blockquote><para>
#: freeculture.xml:655
msgid ""
"A glass of water was poured before the microphone in Yonkers; it sounded "
"like a glass of water being poured. &hellip; A paper was crumpled and torn; "
"it sounded like paper and not like a crackling forest fire. &hellip; Sousa "
"marches were played from records and a piano solo and guitar number were "
"performed. &hellip; The music was projected with a live-ness rarely if ever "
"heard before from a radio \"music box.\"<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 20 
#. type: Content of: <book><chapter><para>
#: freeculture.xml:668
msgid ""
"As our own common sense tells us, Armstrong had discovered a vastly superior "
"radio technology. But at the time of his invention, Armstrong was working "
"for RCA. RCA was the dominant player in the then dominant AM radio "
"market. By 1935, there were a thousand radio stations across the United "
"States, but the stations in large cities were all owned by a handful of "
"networks."
msgstr ""

#. type: Content of: <book><chapter><para><indexterm><primary>
#: freeculture.xml:682 freeculture.xml:702
msgid "Sarnoff, David"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:677
msgid ""
"RCA's president, David Sarnoff, a friend of Armstrong's, was eager that "
"Armstrong discover a way to remove static from AM radio. So Sarnoff was "
"quite excited when Armstrong told him he had a device that removed static "
"from \"radio.\" But when Armstrong demonstrated his invention, Sarnoff was "
"not pleased.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><blockquote><para><footnote><para>
#: freeculture.xml:689
msgid ""
"See \"Saints: The Heroes and Geniuses of the Electronic Era,\" First "
"Electronic Church of America, at www.webstationone.com/fecha, available at "
"<ulink url=\"http://free-culture.cc/notes/\">link #1</ulink>."
msgstr ""

#. type: Content of: <book><chapter><blockquote><para>
#: freeculture.xml:686
msgid ""
"I thought Armstrong would invent some kind of a filter to remove static from "
"our AM radio. I didn't think he'd start a revolution&mdash; start up a whole "
"damn new industry to compete with RCA.<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:698
msgid ""
"Armstrong's invention threatened RCA's AM empire, so the company launched a "
"campaign to smother FM radio. While FM may have been a superior technology, "
"Sarnoff was a superior tactician.  As one author described, <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><blockquote><para><footnote><para>
#: freeculture.xml:711
msgid "Lessing, 226."
msgstr ""

#. type: Content of: <book><chapter><blockquote><para>
#: freeculture.xml:706
msgid ""
"The forces for FM, largely engineering, could not overcome the weight of "
"strategy devised by the sales, patent, and legal offices to subdue this "
"threat to corporate position. For FM, if allowed to develop unrestrained, "
"posed &hellip; a complete reordering of radio power &hellip; and the "
"eventual overthrow of the carefully restricted AM system on which RCA had "
"grown to power.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:716
msgid ""
"RCA at first kept the technology in house, insisting that further tests were "
"needed. When, after two years of testing, Armstrong grew impatient, RCA "
"began to use its power with the government to stall FM radio's deployment "
"generally. In 1936, RCA hired the former head of the FCC and assigned him "
"the task of assuring that the FCC assign spectrum in a way that would "
"castrate FM&mdash;principally by moving FM radio to a different band of "
"spectrum. At first, these efforts failed. But when Armstrong and the nation "
"were distracted by World War II, RCA's work began to be more "
"successful. Soon after the war ended, the FCC announced a set of policies "
"that would have one clear effect: FM radio would be crippled. As Lawrence "
"Lessing described it,"
msgstr ""

#. type: Content of: <book><chapter><blockquote><para><footnote><para>
#: freeculture.xml:735
msgid "Lessing, 256."
msgstr ""

#. type: Content of: <book><chapter><blockquote><para>
#: freeculture.xml:731
msgid ""
"The series of body blows that FM radio received right after the war, in a "
"series of rulings manipulated through the FCC by the big radio interests, "
"were almost incredible in their force and deviousness.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:739
msgid "AT&amp;T"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:741
msgid ""
"To make room in the spectrum for RCA's latest gamble, television, FM radio "
"users were to be moved to a totally new spectrum band. The power of FM radio "
"stations was also cut, meaning FM could no longer be used to beam programs "
"from one part of the country to another.  (This change was strongly "
"supported by AT&amp;T, because the loss of FM relaying stations would mean "
"radio stations would have to buy wired links from AT&amp;T.) The spread of "
"FM radio was thus choked, at least temporarily."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:751
msgid ""
"Armstrong resisted RCA's efforts. In response, RCA resisted Armstrong's "
"patents. After incorporating FM technology into the emerging standard for "
"television, RCA declared the patents invalid&mdash;baselessly, and almost "
"fifteen years after they were issued. It thus refused to pay him "
"royalties. For six years, Armstrong fought an expensive war of litigation to "
"defend the patents. Finally, just as the patents expired, RCA offered a "
"settlement so low that it would not even cover Armstrong's lawyers' "
"fees. Defeated, broken, and now broke, in 1954 Armstrong wrote a short note "
"to his wife and then stepped out of a thirteenth-story window to his death."
msgstr ""

#.  PAGE BREAK 22 
#. type: Content of: <book><chapter><para>
#: freeculture.xml:763
msgid ""
"This is how the law sometimes works. Not often this tragically, and rarely "
"with heroic drama, but sometimes, this is how it works. From the beginning, "
"government and government agencies have been subject to capture. They are "
"more likely captured when a powerful interest is threatened by either a "
"legal or technical change. That powerful interest too often exerts its "
"influence within the government to get the government to protect it. The "
"rhetoric of this protection is of course always public spirited; the reality "
"is something different. Ideas that were as solid as rock in one age, but "
"that, left to themselves, would crumble in another, are sustained through "
"this subtle corruption of our political process. RCA had what the Causbys "
"did not: the power to stifle the effect of technological change."
msgstr ""

#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:785
msgid ""
"Amanda Lenhart, \"The Ever-Shifting Internet Population: A New Look at "
"Internet Access and the Digital Divide,\" Pew Internet and American Life "
"Project, 15 April 2003: 6, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #2</ulink>."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:779
msgid ""
"There's no single inventor of the Internet. Nor is there any good date upon "
"which to mark its birth. Yet in a very short time, the Internet has become "
"part of ordinary American life. According to the Pew Internet and American "
"Life Project, 58 percent of Americans had access to the Internet in 2002, up "
"from 49 percent two years before.<placeholder type=\"footnote\" id=\"0\"/> "
"That number could well exceed two thirds of the nation by the end of 2004."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:794
msgid ""
"As the Internet has been integrated into ordinary life, it has changed "
"things. Some of these changes are technical&mdash;the Internet has made "
"communication faster, it has lowered the cost of gathering data, and so "
"on. These technical changes are not the focus of this book. They are "
"important. They are not well understood. But they are the sort of thing that "
"would simply go away if we all just switched the Internet off.  They don't "
"affect people who don't use the Internet, or at least they don't affect them "
"directly. They are the proper subject of a book about the Internet. But this "
"is not a book about the Internet."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:805
msgid ""
"Instead, this book is about an effect of the Internet beyond the Internet "
"itself: an effect upon how culture is made. My claim is that the Internet "
"has induced an important and unrecognized change in that process. That "
"change will radically transform a tradition that is as old as the Republic "
"itself. Most, if they recognized this change, would reject it. Yet most "
"don't even see the change that the Internet has introduced."
msgstr ""

#. type: Content of: <book><chapter><para><indexterm><primary>
#: freeculture.xml:824
msgid "Barlow, Joel"
msgstr ""

#. type: Content of: <book><chapter><para><indexterm><primary>
#: freeculture.xml:825
msgid "Webster, Noah"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:814
msgid ""
"We can glimpse a sense of this change by distinguishing between commercial "
"and noncommercial culture, and by mapping the law's regulation of each. By "
"\"commercial culture\" I mean that part of our culture that is produced and "
"sold or produced to be sold. By \"noncommercial culture\" I mean all the "
"rest. When old men sat around parks or on street corners telling stories "
"that kids and others consumed, that was noncommercial culture. When Noah "
"Webster published his \"Reader,\" or Joel Barlow his poetry, that was "
"commercial culture.  <placeholder type=\"indexterm\" id=\"0\"/> <placeholder "
"type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:828
msgid ""
"At the beginning of our history, and for just about the whole of our "
"tradition, noncommercial culture was essentially unregulated. Of course, if "
"your stories were lewd, or if your song disturbed the peace, then the law "
"might intervene. But the law was never directly concerned with the creation "
"or spread of this form of culture, and it left this culture \"free.\" The "
"ordinary ways in which ordinary individuals shared and transformed their "
"culture&mdash;telling stories, reenacting scenes from plays or TV, "
"participating in fan clubs, sharing music, making tapes&mdash;were left "
"alone by the law."
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:853 freeculture.xml:1873 freeculture.xml:1884
msgid "Brandeis, Louis D."
msgstr ""

#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:845
msgid ""
"This is not the only purpose of copyright, though it is the overwhelmingly "
"primary purpose of the copyright established in the federal constitution.  "
"State copyright law historically protected not just the commercial interest "
"in publication, but also a privacy interest. By granting authors the "
"exclusive right to first publication, state copyright law gave authors the "
"power to control the spread of facts about them. See Samuel D. Warren and "
"Louis D. Brandeis, \"The Right to Privacy,\" Harvard Law Review 4 (1890): "
"193, 198&ndash;200.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:839
msgid ""
"The focus of the law was on commercial creativity. At first slightly, then "
"quite extensively, the law protected the incentives of creators by granting "
"them exclusive rights to their creative work, so that they could sell those "
"exclusive rights in a commercial marketplace.<placeholder type=\"footnote\" "
"id=\"0\"/> This is also, of course, an important part of creativity and "
"culture, and it has become an increasingly important part in America. But in "
"no sense was it dominant within our tradition. It was instead just one part, "
"a controlled part, balanced with the free."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:865 freeculture.xml:9377
msgid "Litman, Jessica"
msgstr ""

#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:863
msgid ""
"See Jessica Litman, <citetitle>Digital Copyright</citetitle> (New York: "
"Prometheus Books, 2001), ch. 13.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:861
msgid ""
"This rough divide between the free and the controlled has now been "
"erased.<placeholder type=\"footnote\" id=\"0\"/> The Internet has set the "
"stage for this erasure and, pushed by big media, the law has now affected "
"it. For the first time in our tradition, the ordinary ways in which "
"individuals create and share culture fall within the reach of the regulation "
"of the law, which has expanded to draw within its control a vast amount of "
"culture and creativity that it never reached before. The technology that "
"preserved the balance of our history&mdash;between uses of our culture that "
"were free and uses of our culture that were only upon permission&mdash;has "
"been undone.  The consequence is that we are less and less a free culture, "
"more and more a permission culture."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:880
msgid ""
"This change gets justified as necessary to protect commercial creativity.  "
"And indeed, protectionism is precisely its motivation. But the protectionism "
"that justifies the changes that I will describe below is not the limited and "
"balanced sort that has defined the law in the past. This is not a "
"protectionism to protect artists. It is instead a protectionism to protect "
"certain forms of business. Corporations threatened by the potential of the "
"Internet to change the way both commercial and noncommercial culture are "
"made and shared have united to induce lawmakers to use the law to protect "
"them. It is the story of RCA and Armstrong; it is the dream of the Causbys."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:893
msgid ""
"For the Internet has unleashed an extraordinary possibility for many to "
"participate in the process of building and cultivating a culture that "
"reaches far beyond local boundaries. That power has changed the marketplace "
"for making and cultivating culture generally, and that change in turn "
"threatens established content industries. The Internet is thus to the "
"industries that built and distributed content in the twentieth century what "
"FM radio was to AM radio, or what the truck was to the railroad industry of "
"the nineteenth century: the beginning of the end, or at least a substantial "
"transformation. Digital technologies, tied to the Internet, could produce a "
"vastly more competitive and vibrant market for building and cultivating "
"culture; that market could include a much wider and more diverse range of "
"creators; those creators could produce and distribute a much more vibrant "
"range of creativity; and depending upon a few important factors, those "
"creators could earn more on average from this system than creators do "
"today&mdash;all so long as the RCAs of our day don't use the law to protect "
"themselves against this competition."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:912
msgid ""
"Yet, as I argue in the pages that follow, that is precisely what is "
"happening in our culture today. These modern-day equivalents of the early "
"twentieth-century radio or nineteenth-century railroads are using their "
"power to get the law to protect them against this new, more efficient, more "
"vibrant technology for building culture. They are succeeding in their plan "
"to remake the Internet before the Internet remakes them."
msgstr ""

#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:929
msgid ""
"Amy Harmon, \"Black Hawk Download: Moving Beyond Music, Pirates Use New "
"Tools to Turn the Net into an Illicit Video Club,\" <citetitle>New York "
"Times</citetitle>, 17 January 2002."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:921
msgid ""
"It doesn't seem this way to many. The battles over copyright and the "
"Internet seem remote to most. To the few who follow them, they seem mainly "
"about a much simpler brace of questions&mdash;whether \"piracy\" will be "
"permitted, and whether \"property\" will be protected. The \"war\" that has "
"been waged against the technologies of the Internet&mdash;what Motion "
"Picture Association of America (MPAA) president Jack Valenti calls his \"own "
"terrorist war\"<placeholder type=\"footnote\" id=\"0\"/>&mdash;has been "
"framed as a battle about the rule of law and respect for property. To know "
"which side to take in this war, most think that we need only decide whether "
"we're for property or against it."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:938
msgid ""
"If those really were the choices, then I would be with Jack Valenti and the "
"content industry. I, too, am a believer in property, and especially in the "
"importance of what Mr. Valenti nicely calls \"creative property.\" I believe "
"that \"piracy\" is wrong, and that the law, properly tuned, should punish "
"\"piracy,\" whether on or off the Internet."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:946
msgid ""
"But those simple beliefs mask a much more fundamental question and a much "
"more dramatic change. My fear is that unless we come to see this change, the "
"war to rid the world of Internet \"pirates\" will also rid our culture of "
"values that have been integral to our tradition from the start."
msgstr ""

#. type: Content of: <book><chapter><section><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:960 freeculture.xml:14203
msgid "Netanel, Neil Weinstock"
msgstr ""

#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:958
msgid ""
"Neil W. Netanel, \"Copyright and a Democratic Civil Society,\" "
"<citetitle>Yale Law Journal</citetitle> 106 (1996): 283.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:952
msgid ""
"These values built a tradition that, for at least the first 180 years of our "
"Republic, guaranteed creators the right to build freely upon their past, and "
"protected creators and innovators from either state or private control. The "
"First Amendment protected creators against state control.  And as Professor "
"Neil Netanel powerfully argues,<placeholder type=\"footnote\" id=\"0\"/> "
"copyright law, properly balanced, protected creators against private "
"control. Our tradition was thus neither Soviet nor the tradition of "
"patrons. It instead carved out a wide berth within which creators could "
"cultivate and extend our culture."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:968
msgid ""
"Yet the law's response to the Internet, when tied to changes in the "
"technology of the Internet itself, has massively increased the effective "
"regulation of creativity in America. To build upon or critique the culture "
"around us one must ask, Oliver Twist&ndash;like, for permission first.  "
"Permission is, of course, often granted&mdash;but it is not often granted to "
"the critical or the independent. We have built a kind of cultural nobility; "
"those within the noble class live easily; those outside it don't. But it is "
"nobility of any form that is alien to our tradition."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:980
msgid ""
"The story that follows is about this war. Is it not about the \"centrality "
"of technology\" to ordinary life. I don't believe in gods, digital or "
"otherwise. Nor is it an effort to demonize any individual or group, for "
"neither do I believe in a devil, corporate or otherwise. It is not a "
"morality tale. Nor is it a call to jihad against an industry."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:988
msgid ""
"It is instead an effort to understand a hopelessly destructive war inspired "
"by the technologies of the Internet but reaching far beyond its code. And by "
"understanding this battle, it is an effort to map peace.  There is no good "
"reason for the current struggle around Internet technologies to "
"continue. There will be great harm to our tradition and culture if it is "
"allowed to continue unchecked. We must come to understand the source of this "
"war. We must resolve it soon."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:999
msgid ""
"Like the Causbys' battle, this war is, in part, about \"property.\" The "
"property of this war is not as tangible as the Causbys', and no innocent "
"chicken has yet to lose its life. Yet the ideas surrounding this "
"\"property\" are as obvious to most as the Causbys' claim about the "
"sacredness of their farm was to them. We are the Causbys. Most of us take "
"for granted the extraordinarily powerful claims that the owners of "
"\"intellectual property\" now assert. Most of us, like the Causbys, treat "
"these claims as obvious. And hence we, like the Causbys, object when a new "
"technology interferes with this property. It is as plain to us as it was to "
"them that the new technologies of the Internet are \"trespassing\" upon "
"legitimate claims of \"property.\" It is as plain to us as it was to them "
"that the law should intervene to stop this trespass."
msgstr ""

#.  PAGE BREAK 27 
#. type: Content of: <book><chapter><para>
#: freeculture.xml:1016
msgid ""
"And thus, when geeks and technologists defend their Armstrong or Wright "
"brothers technology, most of us are simply unsympathetic.  Common sense does "
"not revolt. Unlike in the case of the unlucky Causbys, common sense is on "
"the side of the property owners in this war. Unlike the lucky Wright "
"brothers, the Internet has not inspired a revolution on its side."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:1026
msgid ""
"My hope is to push this common sense along. I have become increasingly "
"amazed by the power of this idea of intellectual property and, more "
"importantly, its power to disable critical thought by policy makers and "
"citizens. There has never been a time in our history when more of our "
"\"culture\" was as \"owned\" as it is now. And yet there has never been a "
"time when the concentration of power to control the "
"<emphasis>uses</emphasis> of culture has been as unquestioningly accepted as "
"it is now."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:1036
msgid ""
"The puzzle is, Why? Is it because we have come to understand a truth about "
"the value and importance of absolute property over ideas and culture? Is it "
"because we have discovered that our tradition of rejecting such an absolute "
"claim was wrong?"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:1042
msgid ""
"Or is it because the idea of absolute property over ideas and culture "
"benefits the RCAs of our time and fits our own unreflective intuitions?"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:1046
msgid ""
"Is the radical shift away from our tradition of free culture an instance of "
"America correcting a mistake from its past, as we did after a bloody war "
"with slavery, and as we are slowly doing with inequality? Or is the radical "
"shift away from our tradition of free culture yet another example of a "
"political system captured by a few powerful special interests?"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:1053
msgid ""
"Does common sense lead to the extremes on this question because common sense "
"actually believes in these extremes? Or does common sense stand silent in "
"the face of these extremes because, as with Armstrong versus RCA, the more "
"powerful side has ensured that it has the more powerful view?"
msgstr ""

#.  PAGE BREAK 28 
#. type: Content of: <book><chapter><para>
#: freeculture.xml:1062
msgid ""
"I don't mean to be mysterious. My own views are resolved. I believe it was "
"right for common sense to revolt against the extremism of the Causbys. I "
"believe it would be right for common sense to revolt against the extreme "
"claims made today on behalf of \"intellectual property.\" What the law "
"demands today is increasingly as silly as a sheriff arresting an airplane "
"for trespass. But the consequences of this silliness will be much more "
"profound."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:1072
msgid ""
"The struggle that rages just now centers on two ideas: \"piracy\" and "
"\"property.\" My aim in this book's next two parts is to explore these two "
"ideas."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:1077
msgid ""
"My method is not the usual method of an academic. I don't want to plunge you "
"into a complex argument, buttressed with references to obscure French "
"theorists&mdash;however natural that is for the weird sort we academics have "
"become. Instead I begin in each part with a collection of stories that set a "
"context within which these apparently simple ideas can be more fully "
"understood."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:1085
msgid ""
"The two sections set up the core claim of this book: that while the Internet "
"has indeed produced something fantastic and new, our government, pushed by "
"big media to respond to this \"something new,\" is destroying something very "
"old. Rather than understanding the changes the Internet might permit, and "
"rather than taking time to let \"common sense\" resolve how best to respond, "
"we are allowing those most threatened by the changes to use their power to "
"change the law&mdash;and more importantly, to use their power to change "
"something fundamental about who we have always been."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:1096
msgid ""
"We allow this, I believe, not because it is right, and not because most of "
"us really believe in these changes. We allow it because the interests most "
"threatened are among the most powerful players in our depressingly "
"compromised process of making law. This book is the story of one more "
"consequence of this form of corruption&mdash;a consequence to which most of "
"us remain oblivious."
msgstr ""

#. type: Content of: <book><part><title>
#: freeculture.xml:1106
msgid "\"PIRACY\""
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1110 freeculture.xml:4746
msgid "Mansfield, William Murray, Lord"
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1113
msgid ""
"Since the inception of the law regulating creative property, there has been "
"a war against \"piracy.\" The precise contours of this concept, \"piracy,\" "
"are hard to sketch, but the animating injustice is easy to capture.  As Lord "
"Mansfield wrote in a case that extended the reach of English copyright law "
"to include sheet music,"
msgstr ""

#.  f1 
#. type: Content of: <book><part><partintro><blockquote><para><footnote><para>
#: freeculture.xml:1125
msgid ""
"<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 "
"Eng. Rep. 1274 (1777) (Mansfield)."
msgstr ""

#. type: Content of: <book><part><partintro><blockquote><para>
#: freeculture.xml:1121
msgid ""
"A person may use the copy by playing it, but he has no right to rob the "
"author of the profit, by multiplying copies and disposing of them for his "
"own use.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 31 
#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1131
msgid ""
"Today we are in the middle of another \"war\" against \"piracy.\" The "
"Internet has provoked this war. The Internet makes possible the efficient "
"spread of content. Peer-to-peer (p2p) file sharing is among the most "
"efficient of the efficient technologies the Internet enables. Using "
"distributed intelligence, p2p systems facilitate the easy spread of content "
"in a way unimagined a generation ago."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1140
msgid ""
"This efficiency does not respect the traditional lines of copyright.  The "
"network doesn't discriminate between the sharing of copyrighted and "
"uncopyrighted content. Thus has there been a vast amount of sharing of "
"copyrighted content. That sharing in turn has excited the war, as copyright "
"owners fear the sharing will \"rob the author of the profit.\""
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1148
msgid ""
"The warriors have turned to the courts, to the legislatures, and "
"increasingly to technology to defend their \"property\" against this "
"\"piracy.\" A generation of Americans, the warriors warn, is being raised to "
"believe that \"property\" should be \"free.\" Forget tattoos, never mind "
"body piercing&mdash;our kids are becoming <emphasis>thieves</emphasis>!"
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1156
msgid ""
"There's no doubt that \"piracy\" is wrong, and that pirates should be "
"punished. But before we summon the executioners, we should put this notion "
"of \"piracy\" in some context. For as the concept is increasingly used, at "
"its core is an extraordinary idea that is almost certainly wrong."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1162
msgid "The idea goes something like this:"
msgstr ""

#. type: Content of: <book><part><partintro><blockquote><para>
#: freeculture.xml:1166
msgid ""
"Creative work has value; whenever I use, or take, or build upon the creative "
"work of others, I am taking from them something of value. Whenever I take "
"something of value from someone else, I should have their permission. The "
"taking of something of value from someone else without permission is "
"wrong. It is a form of piracy."
msgstr ""

#. type: Content of: <book><part><partintro><indexterm><primary>
#: freeculture.xml:1174
msgid "Dreyfuss, Rochelle"
msgstr ""

#.  f2 
#. type: Content of: <book><part><partintro><para><footnote><para>
#: freeculture.xml:1180
msgid ""
"See Rochelle Dreyfuss, \"Expressive Genericity: Trademarks as Language in "
"the Pepsi Generation,\" <citetitle>Notre Dame Law Review</citetitle> 65 "
"(1990): 397."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:1193 freeculture.xml:6844
msgid "Zittrain, Jonathan"
msgstr ""

#. type: Content of: <book><part><partintro><para><footnote><para>
#: freeculture.xml:1188
msgid ""
"Lisa Bannon, \"The Birds May Sing, but Campers Can't Unless They Pay Up,\" "
"<citetitle>Wall Street Journal</citetitle>, 21 August 1996, available at "
"<ulink url=\"http://free-culture.cc/notes/\">link #3</ulink>; Jonathan "
"Zittrain, \"Calling Off the Copyright War: In Battle of Property vs. Free "
"Speech, No One Wins,\" <citetitle>Boston Globe</citetitle>, 24 November "
"2002.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1176
msgid ""
"This view runs deep within the current debates. It is what NYU law professor "
"Rochelle Dreyfuss criticizes as the \"if value, then right\" theory of "
"creative property<placeholder type=\"footnote\" id=\"0\"/> &mdash;if there "
"is value, then someone must have a right to that value. It is the "
"perspective that led a composers' rights organization, ASCAP, to sue the "
"Girl Scouts for failing to pay for the songs that girls sang around Girl "
"Scout campfires.<placeholder type=\"footnote\" id=\"1\"/> There was "
"\"value\" (the songs) so there must have been a \"right\"&mdash;even against "
"the Girl Scouts."
msgstr ""

#. type: Content of: <book><part><partintro><indexterm><primary>
#: freeculture.xml:1198
msgid "ASCAP"
msgstr ""

#.  PAGE BREAK 32 
#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1200
msgid ""
"This idea is certainly a possible understanding of how creative property "
"should work. It might well be a possible design for a system of law "
"protecting creative property. But the \"if value, then right\" theory of "
"creative property has never been America's theory of creative property.  It "
"has never taken hold within our law."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1208
msgid ""
"Instead, in our tradition, intellectual property is an instrument. It sets "
"the groundwork for a richly creative society but remains subservient to the "
"value of creativity. The current debate has this turned around. We have "
"become so concerned with protecting the instrument that we are losing sight "
"of the value."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1215
msgid ""
"The source of this confusion is a distinction that the law no longer takes "
"care to draw&mdash;the distinction between republishing someone's work on "
"the one hand and building upon or transforming that work on the "
"other. Copyright law at its birth had only publishing as its concern; "
"copyright law today regulates both."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1222
msgid ""
"Before the technologies of the Internet, this conflation didn't matter all "
"that much. The technologies of publishing were expensive; that meant the "
"vast majority of publishing was commercial. Commercial entities could bear "
"the burden of the law&mdash;even the burden of the Byzantine complexity that "
"copyright law has become. It was just one more expense of doing business."
msgstr ""

#. type: Content of: <book><part><partintro><para><footnote><para><indexterm><primary>
#: freeculture.xml:1229 freeculture.xml:1257
msgid "Florida, Richard"
msgstr ""

#. type: Content of: <book><part><partintro><para><footnote><para>
#: freeculture.xml:1250
msgid ""
"In <citetitle>The Rise of the Creative Class</citetitle> (New York: Basic "
"Books, 2002), Richard Florida documents a shift in the nature of labor "
"toward a labor of creativity.  His work, however, doesn't directly address "
"the legal conditions under which that creativity is enabled or stifled. I "
"certainly agree with him about the importance and significance of this "
"change, but I also believe the conditions under which it will be enabled are "
"much more tenuous.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1231
msgid ""
"But with the birth of the Internet, this natural limit to the reach of the "
"law has disappeared. The law controls not just the creativity of commercial "
"creators but effectively that of anyone. Although that expansion would not "
"matter much if copyright law regulated only \"copying,\" when the law "
"regulates as broadly and obscurely as it does, the extension matters a "
"lot. The burden of this law now vastly outweighs any original "
"benefit&mdash;certainly as it affects noncommercial creativity, and "
"increasingly as it affects commercial creativity as well. Thus, as we'll see "
"more clearly in the chapters below, the law's role is less and less to "
"support creativity, and more and more to protect certain industries against "
"competition. Just at the time digital technology could unleash an "
"extraordinary range of commercial and noncommercial creativity, the law "
"burdens this creativity with insanely complex and vague rules and with the "
"threat of obscenely severe penalties. We may be seeing, as Richard Florida "
"writes, the \"Rise of the Creative Class.\"<placeholder type=\"footnote\" "
"id=\"0\"/> Unfortunately, we are also seeing an extraordinary rise of "
"regulation of this creative class."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1263
msgid ""
"These burdens make no sense in our tradition. We should begin by "
"understanding that tradition a bit more and by placing in their proper "
"context the current battles about behavior labeled \"piracy.\""
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:1271
msgid "CHAPTER ONE: Creators"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1273
msgid ""
"In 1928, a cartoon character was born. An early Mickey Mouse made his debut "
"in May of that year, in a silent flop called <citetitle>Plane "
"Crazy</citetitle>.  In November, in New York City's Colony Theater, in the "
"first widely distributed cartoon synchronized with sound, "
"<citetitle>Steamboat Willie</citetitle> brought to life the character that "
"would become Mickey Mouse."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1280
msgid ""
"Synchronized sound had been introduced to film a year earlier in the movie "
"<citetitle>The Jazz Singer</citetitle>. That success led Walt Disney to copy "
"the technique and mix sound with cartoons. No one knew whether it would work "
"or, if it did work, whether it would win an audience. But when Disney ran a "
"test in the summer of 1928, the results were unambiguous.  As Disney "
"describes that first experiment,"
msgstr ""

#.  PAGE BREAK 35 
#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:1289
msgid ""
"A couple of my boys could read music, and one of them could play a mouth "
"organ. We put them in a room where they could not see the screen and "
"arranged to pipe their sound into the room where our wives and friends were "
"going to see the picture."
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:1296
msgid ""
"The boys worked from a music and sound-effects score. After several false "
"starts, sound and action got off with the gun. The mouth organist played the "
"tune, the rest of us in the sound department bammed tin pans and blew slide "
"whistles on the beat.  The synchronization was pretty close."
msgstr ""

#.  f1 
#. type: Content of: <book><part><chapter><blockquote><para><footnote><para>
#: freeculture.xml:1309
msgid ""
"Leonard Maltin, <citetitle>Of Mice and Magic: A History of American Animated "
"Cartoons</citetitle> (New York: Penguin Books, 1987), 34&ndash;35."
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:1303
msgid ""
"The effect on our little audience was nothing less than electric.  They "
"responded almost instinctively to this union of sound and motion. I thought "
"they were kidding me. So they put me in the audience and ran the action "
"again. It was terrible, but it was wonderful! And it was something "
"new!<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:1318
msgid "Iwerks, Ub"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1315
msgid ""
"Disney's then partner, and one of animation's most extraordinary talents, Ub "
"Iwerks, put it more strongly: \"I have never been so thrilled in my "
"life. Nothing since has ever equaled it.\" <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1321
msgid ""
"Disney had created something very new, based upon something relatively "
"new. Synchronized sound brought life to a form of creativity that had "
"rarely&mdash;except in Disney's hands&mdash;been anything more than filler "
"for other films. Throughout animation's early history, it was Disney's "
"invention that set the standard that others struggled to match.  And quite "
"often, Disney's great genius, his spark of creativity, was built upon the "
"work of others."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1330
msgid ""
"This much is familiar. What you might not know is that 1928 also marks "
"another important transition. In that year, a comic (as opposed to cartoon) "
"genius created his last independently produced silent film.  That genius was "
"Buster Keaton. The film was <citetitle>Steamboat Bill, Jr</citetitle>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1336
msgid ""
"Keaton was born into a vaudeville family in 1895. In the era of silent film, "
"he had mastered using broad physical comedy as a way to spark uncontrollable "
"laughter from his audience. <citetitle>Steamboat Bill, Jr</citetitle>. was a "
"classic of this form, famous among film buffs for its incredible stunts.  "
"The film was classic Keaton&mdash;wildly popular and among the best of its "
"genre."
msgstr ""

#.  f2 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1350
msgid ""
"I am grateful to David Gerstein and his careful history, described at <ulink "
"url=\"http://free-culture.cc/notes/\">link #4</ulink>.  According to Dave "
"Smith of the Disney Archives, Disney paid royalties to use the music for "
"five songs in <citetitle>Steamboat Willie</citetitle>: \"Steamboat Bill,\" "
"\"The Simpleton\" (Delille), \"Mischief Makers\" (Carbonara), \"Joyful Hurry "
"No. 1\" (Baron), and \"Gawky Rube\" (Lakay). A sixth song, \"The Turkey in "
"the Straw,\" was already in the public domain. Letter from David Smith to "
"Harry Surden, 10 July 2003, on file with author."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1344
msgid ""
"<citetitle>Steamboat Bill, Jr</citetitle>. appeared before Disney's cartoon "
"Steamboat Willie.  The coincidence of titles is not coincidental. Steamboat "
"Willie is a direct cartoon parody of Steamboat Bill,<placeholder "
"type=\"footnote\" id=\"0\"/> and both are built upon a common song as a "
"source. It is not just from the invention of synchronized sound in "
"<citetitle>The Jazz Singer</citetitle> that we get <citetitle>Steamboat "
"Willie</citetitle>. It is also from Buster Keaton's invention of Steamboat "
"Bill, Jr., itself inspired by the song \"Steamboat Bill,\" that we get "
"Steamboat Willie, and then from Steamboat Willie, Mickey Mouse."
msgstr ""

#.  f3 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1371
msgid ""
"He was also a fan of the public domain. See Chris Sprigman, \"The Mouse that "
"Ate the Public Domain,\" Findlaw, 5 March 2002, at <ulink "
"url=\"http://free-culture.cc/notes/\">link #5</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1367
msgid ""
"This \"borrowing\" was nothing unique, either for Disney or for the "
"industry. Disney was always parroting the feature-length mainstream films of "
"his day.<placeholder type=\"footnote\" id=\"0\"/> So did many others. Early "
"cartoons are filled with knockoffs&mdash;slight variations on winning "
"themes; retellings of ancient stories. The key to success was the brilliance "
"of the differences. With Disney, it was sound that gave his animation its "
"spark. Later, it was the quality of his work relative to the production-line "
"cartoons with which he competed. Yet these additions were built upon a base "
"that was borrowed.  Disney added to the work of others before him, creating "
"something new out of something just barely old."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1386
msgid ""
"Sometimes this borrowing was slight. Sometimes it was significant.  Think "
"about the fairy tales of the Brothers Grimm. If you're as oblivious as I "
"was, you're likely to think that these tales are happy, sweet stories, "
"appropriate for any child at bedtime. In fact, the Grimm fairy tales are, "
"well, for us, grim. It is a rare and perhaps overly ambitious parent who "
"would dare to read these bloody, moralistic stories to his or her child, at "
"bedtime or anytime."
msgstr ""

#.  PAGE BREAK 37 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1395
msgid ""
"Disney took these stories and retold them in a way that carried them into a "
"new age. He animated the stories, with both characters and light. Without "
"removing the elements of fear and danger altogether, he made funny what was "
"dark and injected a genuine emotion of compassion where before there was "
"fear. And not just with the work of the Brothers Grimm. Indeed, the catalog "
"of Disney work drawing upon the work of others is astonishing when set "
"together: <citetitle>Snow White</citetitle> (1937), "
"<citetitle>Fantasia</citetitle> (1940), <citetitle>Pinocchio</citetitle> "
"(1940), <citetitle>Dumbo</citetitle> (1941), <citetitle>Bambi</citetitle> "
"(1942), <citetitle>Song of the South</citetitle> (1946), "
"<citetitle>Cinderella</citetitle> (1950), <citetitle>Alice in "
"Wonderland</citetitle> (1951), <citetitle>Robin Hood</citetitle> (1952), "
"<citetitle>Peter Pan</citetitle> (1953), <citetitle>Lady and the "
"Tramp</citetitle> (1955), <citetitle>Mulan</citetitle> (1998), "
"<citetitle>Sleeping Beauty</citetitle> (1959), <citetitle>101 "
"Dalmatians</citetitle> (1961), <citetitle>The Sword in the Stone</citetitle> "
"(1963), and <citetitle>The Jungle Book</citetitle> (1967)&mdash;not to "
"mention a recent example that we should perhaps quickly forget, "
"<citetitle>Treasure Planet</citetitle> (2003). In all of these cases, Disney "
"(or Disney, Inc.) ripped creativity from the culture around him, mixed that "
"creativity with his own extraordinary talent, and then burned that mix into "
"the soul of his culture. Rip, mix, and burn."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1417
msgid ""
"This is a kind of creativity. It is a creativity that we should remember and "
"celebrate. There are some who would say that there is no creativity except "
"this kind. We don't need to go that far to recognize its importance. We "
"could call this \"Disney creativity,\" though that would be a bit "
"misleading. It is, more precisely, \"Walt Disney creativity\"&mdash;a form "
"of expression and genius that builds upon the culture around us and makes it "
"something different."
msgstr ""

#.  f4 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1431
msgid ""
"Until 1976, copyright law granted an author the possibility of two terms: an "
"initial term and a renewal term. I have calculated the \"average\" term by "
"determining the weighted average of total registrations for any particular "
"year, and the proportion renewing. Thus, if 100 copyrights are registered in "
"year 1, and only 15 are renewed, and the renewal term is 28 years, then the "
"average term is 32.2 years. For the renewal data and other relevant data, "
"see the Web site associated with this book, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #6</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1425
msgid ""
"In 1928, the culture that Disney was free to draw upon was relatively "
"fresh. The public domain in 1928 was not very old and was therefore quite "
"vibrant. The average term of copyright was just around thirty "
"years&mdash;for that minority of creative work that was in fact "
"copyrighted.<placeholder type=\"footnote\" id=\"0\"/> That means that for "
"thirty years, on average, the authors or copyright holders of a creative "
"work had an \"exclusive right\" to control certain uses of the work. To use "
"this copyrighted work in limited ways required the permission of the "
"copyright owner."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1448
msgid ""
"At the end of a copyright term, a work passes into the public domain.  No "
"permission is then needed to draw upon or use that work. No permission and, "
"hence, no lawyers. The public domain is a \"lawyer-free zone.\" Thus, most "
"of the content from the nineteenth century was free for Disney to use and "
"build upon in 1928. It was free for anyone&mdash; whether connected or not, "
"whether rich or not, whether approved or not&mdash;to use and build upon."
msgstr ""

#.  PAGE BREAK 38 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1457
msgid ""
"This is the ways things always were&mdash;until quite recently. For most of "
"our history, the public domain was just over the horizon. From until 1978, "
"the average copyright term was never more than thirty-two years, meaning "
"that most culture just a generation and a half old was free for anyone to "
"build upon without the permission of anyone else.  Today's equivalent would "
"be for creative work from the 1960s and 1970s to now be free for the next "
"Walt Disney to build upon without permission. Yet today, the public domain "
"is presumptive only for content from before the Great Depression."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1470
msgid ""
"Of course, Walt Disney had no monopoly on \"Walt Disney creativity.\" Nor "
"does America. The norm of free culture has, until recently, and except "
"within totalitarian nations, been broadly exploited and quite universal."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1476
msgid ""
"Consider, for example, a form of creativity that seems strange to many "
"Americans but that is inescapable within Japanese culture: "
"<citetitle>manga</citetitle>, or comics. The Japanese are fanatics about "
"comics. Some 40 percent of publications are comics, and 30 percent of "
"publication revenue derives from comics. They are everywhere in Japanese "
"society, at every magazine stand, carried by a large proportion of commuters "
"on Japan's extraordinary system of public transportation."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1485
msgid ""
"Americans tend to look down upon this form of culture. That's an "
"unattractive characteristic of ours. We're likely to misunderstand much "
"about manga, because few of us have ever read anything close to the stories "
"that these \"graphic novels\" tell. For the Japanese, manga cover every "
"aspect of social life. For us, comics are \"men in tights.\" And anyway, "
"it's not as if the New York subways are filled with readers of Joyce or even "
"Hemingway. People of different cultures distract themselves in different "
"ways, the Japanese in this interestingly different way."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1496
msgid ""
"But my purpose here is not to understand manga. It is to describe a variant "
"on manga that from a lawyer's perspective is quite odd, but from a Disney "
"perspective is quite familiar."
msgstr ""

#.  PAGE BREAK 39 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1501
msgid ""
"This is the phenomenon of <citetitle>doujinshi</citetitle>. Doujinshi are "
"also comics, but they are a kind of copycat comic. A rich ethic governs the "
"creation of doujinshi. It is not doujinshi if it is "
"<emphasis>just</emphasis> a copy; the artist must make a contribution to the "
"art he copies, by transforming it either subtly or significantly. A "
"doujinshi comic can thus take a mainstream comic and develop it "
"differently&mdash;with a different story line. Or the comic can keep the "
"character in character but change its look slightly. There is no formula for "
"what makes the doujinshi sufficiently \"different.\" But they must be "
"different if they are to be considered true doujinshi. Indeed, there are "
"committees that review doujinshi for inclusion within shows and reject any "
"copycat comic that is merely a copy."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1516
msgid ""
"These copycat comics are not a tiny part of the manga market. They are "
"huge. More than 33,000 \"circles\" of creators from across Japan produce "
"these bits of Walt Disney creativity. More than 450,000 Japanese come "
"together twice a year, in the largest public gathering in the country, to "
"exchange and sell them. This market exists in parallel to the mainstream "
"commercial manga market. In some ways, it obviously competes with that "
"market, but there is no sustained effort by those who control the commercial "
"manga market to shut the doujinshi market down. It flourishes, despite the "
"competition and despite the law."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1527
msgid ""
"The most puzzling feature of the doujinshi market, for those trained in the "
"law, at least, is that it is allowed to exist at all. Under Japanese "
"copyright law, which in this respect (on paper) mirrors American copyright "
"law, the doujinshi market is an illegal one. Doujinshi are plainly "
"\"derivative works.\" There is no general practice by doujinshi artists of "
"securing the permission of the manga creators. Instead, the practice is "
"simply to take and modify the creations of others, as Walt Disney did with "
"<citetitle>Steamboat Bill, Jr</citetitle>. Under both Japanese and American "
"law, that \"taking\" without the permission of the original copyright owner "
"is illegal. It is an infringement of the original copyright to make a copy "
"or a derivative work without the original copyright owner's permission."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1541
msgid "Winick, Judd"
msgstr ""

#.  f5 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1554
msgid ""
"For an excellent history, see Scott McCloud, <citetitle>Reinventing "
"Comics</citetitle> (New York: Perennial, 2000)."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1544
msgid ""
"Yet this illegal market exists and indeed flourishes in Japan, and in the "
"view of many, it is precisely because it exists that Japanese manga "
"flourish. As American graphic novelist Judd Winick said to me, \"The early "
"days of comics in America are very much like what's going on in Japan "
"now. &hellip; American comics were born out of copying each other. &hellip; "
"That's how [the artists] learn to draw&mdash;by going into comic books and "
"not tracing them, but looking at them and copying them\" and building from "
"them.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1559
msgid ""
"American comics now are quite different, Winick explains, in part because of "
"the legal difficulty of adapting comics the way doujinshi are "
"allowed. Speaking of Superman, Winick told me, \"there are these rules and "
"you have to stick to them.\" There are things Superman \"cannot\" do. \"As a "
"creator, it's frustrating having to stick to some parameters which are fifty "
"years old.\""
msgstr ""

#.  f6 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1576
msgid ""
"See Salil K. Mehra, \"Copyright and Comics in Japan: Does Law Explain Why "
"All the Comics My Kid Watches Are Japanese Imports?\" <citetitle>Rutgers Law "
"Review</citetitle> 55 (2002): 155, 182. \"[T]here might be a collective "
"economic rationality that would lead manga and anime artists to forgo "
"bringing legal actions for infringement. One hypothesis is that all manga "
"artists may be better off collectively if they set aside their individual "
"self-interest and decide not to press their legal rights. This is "
"essentially a prisoner's dilemma solved.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1568
msgid ""
"The norm in Japan mitigates this legal difficulty. Some say it is precisely "
"the benefit accruing to the Japanese manga market that explains the "
"mitigation. Temple University law professor Salil Mehra, for example, "
"hypothesizes that the manga market accepts these technical violations "
"because they spur the manga market to be more wealthy and "
"productive. Everyone would be worse off if doujinshi were banned, so the law "
"does not ban doujinshi.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1587
msgid ""
"The problem with this story, however, as Mehra plainly acknowledges, is that "
"the mechanism producing this laissez faire response is not clear. It may "
"well be that the market as a whole is better off if doujinshi are permitted "
"rather than banned, but that doesn't explain why individual copyright owners "
"don't sue nonetheless. If the law has no general exception for doujinshi, "
"and indeed in some cases individual manga artists have sued doujinshi "
"artists, why is there not a more general pattern of blocking this \"free "
"taking\" by the doujinshi culture?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1598
msgid ""
"I spent four wonderful months in Japan, and I asked this question as often "
"as I could. Perhaps the best account in the end was offered by a friend from "
"a major Japanese law firm. \"We don't have enough lawyers,\" he told me one "
"afternoon. There \"just aren't enough resources to prosecute cases like "
"this.\""
msgstr ""

#.  PAGE BREAK 41 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1605
msgid ""
"This is a theme to which we will return: that regulation by law is a "
"function of both the words on the books and the costs of making those words "
"have effect. For now, focus on the obvious question that is begged: Would "
"Japan be better off with more lawyers? Would manga be richer if doujinshi "
"artists were regularly prosecuted? Would the Japanese gain something "
"important if they could end this practice of uncompensated sharing? Does "
"piracy here hurt the victims of the piracy, or does it help them? Would "
"lawyers fighting this piracy help their clients or hurt them? Let's pause "
"for a moment."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1618
msgid ""
"If you're like I was a decade ago, or like most people are when they first "
"start thinking about these issues, then just about now you should be puzzled "
"about something you hadn't thought through before."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:1635 freeculture.xml:2826 freeculture.xml:4457 freeculture.xml:4678 freeculture.xml:7224 freeculture.xml:8300
msgid "Vaidhyanathan, Siva"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1628
msgid ""
"The term <citetitle>intellectual property</citetitle> is of relatively "
"recent origin. See Siva Vaidhyanathan, <citetitle>Copyrights and "
"Copywrongs</citetitle>, 11 (New York: New York University Press, 2001). See "
"also Lawrence Lessig, <citetitle>The Future of Ideas</citetitle> (New York: "
"Random House, 2001), 293 n. 26. The term accurately describes a set of "
"\"property\" rights&mdash;copyright, patents, trademark, and "
"trade-secret&mdash;but the nature of those rights is very different.  "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1623
msgid ""
"We live in a world that celebrates \"property.\" I am one of those "
"celebrants.  I believe in the value of property in general, and I also "
"believe in the value of that weird form of property that lawyers call "
"\"intellectual property.\"<placeholder type=\"footnote\" id=\"0\"/> A large, "
"diverse society cannot survive without property; a large, diverse, and "
"modern society cannot flourish without intellectual property."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1642
msgid ""
"But it takes just a second's reflection to realize that there is plenty of "
"value out there that \"property\" doesn't capture. I don't mean \"money "
"can't buy you love,\" but rather, value that is plainly part of a process of "
"production, including commercial as well as noncommercial production.  If "
"Disney animators had stolen a set of pencils to draw Steamboat Willie, we'd "
"have no hesitation in condemning that taking as wrong&mdash; even though "
"trivial, even if unnoticed. Yet there was nothing wrong, at least under the "
"law of the day, with Disney's taking from Buster Keaton or from the Brothers "
"Grimm. There was nothing wrong with the taking from Keaton because Disney's "
"use would have been considered \"fair.\" There was nothing wrong with the "
"taking from the Grimms because the Grimms' work was in the public domain."
msgstr ""

#.  PAGE BREAK 42 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1657
msgid ""
"Thus, even though the things that Disney took&mdash;or more generally, the "
"things taken by anyone exercising Walt Disney creativity&mdash;are valuable, "
"our tradition does not treat those takings as wrong. Some things remain free "
"for the taking within a free culture, and that freedom is good."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1666
msgid ""
"The same with the doujinshi culture. If a doujinshi artist broke into a "
"publisher's office and ran off with a thousand copies of his latest "
"work&mdash;or even one copy&mdash;without paying, we'd have no hesitation in "
"saying the artist was wrong. In addition to having trespassed, he would have "
"stolen something of value. The law bans that stealing in whatever form, "
"whether large or small."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1674
msgid ""
"Yet there is an obvious reluctance, even among Japanese lawyers, to say that "
"the copycat comic artists are \"stealing.\" This form of Walt Disney "
"creativity is seen as fair and right, even if lawyers in particular find it "
"hard to say why."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1680
msgid ""
"It's the same with a thousand examples that appear everywhere once you begin "
"to look. Scientists build upon the work of other scientists without asking "
"or paying for the privilege. (\"Excuse me, Professor Einstein, but may I "
"have permission to use your theory of relativity to show that you were wrong "
"about quantum physics?\") Acting companies perform adaptations of the works "
"of Shakespeare without securing permission from anyone. (Does "
"<emphasis>anyone</emphasis> believe Shakespeare would be better spread "
"within our culture if there were a central Shakespeare rights clearinghouse "
"that all productions of Shakespeare must appeal to first?) And Hollywood "
"goes through cycles with a certain kind of movie: five asteroid films in the "
"late 1990s; two volcano disaster films in 1997."
msgstr ""

#.  PAGE BREAK 43 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1694
msgid ""
"Creators here and everywhere are always and at all times building upon the "
"creativity that went before and that surrounds them now.  That building is "
"always and everywhere at least partially done without permission and without "
"compensating the original creator. No society, free or controlled, has ever "
"demanded that every use be paid for or that permission for Walt Disney "
"creativity must always be sought. Instead, every society has left a certain "
"bit of its culture free for the taking&mdash;free societies more fully than "
"unfree, perhaps, but all societies to some degree."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1705
msgid ""
"The hard question is therefore not <emphasis>whether</emphasis> a culture is "
"free. All cultures are free to some degree. The hard question instead is "
"\"<emphasis>How</emphasis> free is this culture?\" How much, and how "
"broadly, is the culture free for others to take and build upon? Is that "
"freedom limited to party members? To members of the royal family? To the top "
"ten corporations on the New York Stock Exchange? Or is that freedom spread "
"broadly? To artists generally, whether affiliated with the Met or not? To "
"musicians generally, whether white or not? To filmmakers generally, whether "
"affiliated with a studio or not?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1717
msgid ""
"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 so."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:1725
msgid "CHAPTER TWO: \"Mere Copyists\""
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1727
msgid "photography"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:1737
msgid "Daguerre, Louis"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1730
msgid ""
"In 1839, Louis Daguerre invented the first practical technology for "
"producing what we would call \"photographs.\" Appropriately enough, they "
"were called \"daguerreotypes.\" The process was complicated and expensive, "
"and the field was thus limited to professionals and a few zealous and "
"wealthy amateurs. (There was even an American Daguerre Association that "
"helped regulate the industry, as do all such associations, by keeping "
"competition down so as to keep prices up.)  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:1749
msgid "Talbot, William"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1740
msgid ""
"Yet despite high prices, the demand for daguerreotypes was strong.  This "
"pushed inventors to find simpler and cheaper ways to make \"automatic "
"pictures.\" William Talbot soon discovered a process for making "
"\"negatives.\" But because the negatives were glass, and had to be kept wet, "
"the process still remained expensive and cumbersome. In the 1870s, dry "
"plates were developed, making it easier to separate the taking of a picture "
"from its developing. These were still plates of glass, and thus it was still "
"not a process within reach of most amateurs.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1752
msgid "Eastman, George"
msgstr ""

#.  PAGE BREAK 45 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1755
msgid ""
"The technological change that made mass photography possible didn't happen "
"until 1888, and was the creation of a single man. George Eastman, himself an "
"amateur photographer, was frustrated by the technology of photographs made "
"with plates. In a flash of insight (so to speak), Eastman saw that if the "
"film could be made to be flexible, it could be held on a single "
"spindle. That roll could then be sent to a developer, driving the costs of "
"photography down substantially. By lowering the costs, Eastman expected he "
"could dramatically broaden the population of photographers."
msgstr ""

#.  f1 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1772
msgid ""
"Reese V. Jenkins, <citetitle>Images and Enterprise</citetitle> (Baltimore: "
"Johns Hopkins University Press, 1975), 112."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:1774
msgid "Kodak Primer, The (Eastman)"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1767
msgid ""
"Eastman developed flexible, emulsion-coated paper film and placed rolls of "
"it in small, simple cameras: the Kodak. The device was marketed on the basis "
"of its simplicity. \"You press the button and we do the rest.\"<placeholder "
"type=\"footnote\" id=\"0\"/> As he described in <citetitle>The Kodak "
"Primer</citetitle>: <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1791 freeculture.xml:1814
msgid "Coe, Brian"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para><footnote><para>
#: freeculture.xml:1789
msgid ""
"Brian Coe, <citetitle>The Birth of Photography</citetitle> (New York: "
"Taplinger Publishing, 1977), 53.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:1778
msgid ""
"The principle of the Kodak system is the separation of the work that any "
"person whomsoever can do in making a photograph, from the work that only an "
"expert can do. &hellip; We furnish anybody, man, woman or child, who has "
"sufficient intelligence to point a box straight and press a button, with an "
"instrument which altogether removes from the practice of photography the "
"necessity for exceptional facilities or, in fact, any special knowledge of "
"the art. It can be employed without preliminary study, without a darkroom "
"and without chemicals.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  f3 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1807
msgid "Jenkins, 177."
msgstr ""

#.  f4 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1811
msgid "Based on a chart in Jenkins, p. 178."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1796
msgid ""
"For $25, anyone could make pictures. The camera came preloaded with film, "
"and when it had been used, the camera was returned to an Eastman factory, "
"where the film was developed. Over time, of course, the cost of the camera "
"and the ease with which it could be used both improved. Roll film thus "
"became the basis for the explosive growth of popular photography. Eastman's "
"camera first went on sale in 1888; one year later, Kodak was printing more "
"than six thousand negatives a day.  From 1888 through 1909, while industrial "
"production was rising by 4.7 percent, photographic equipment and material "
"sales increased by 11 percent.<placeholder type=\"footnote\" id=\"0\"/> "
"Eastman Kodak's sales during the same period experienced an average annual "
"increase of over 17 percent.<placeholder type=\"footnote\" id=\"1\"/>"
msgstr ""

#.  f5 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1829
msgid "Coe, 58."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1818
msgid ""
"The real significance of Eastman's invention, however, was not economic. It "
"was social. Professional photography gave individuals a glimpse of places "
"they would never otherwise see. Amateur photography gave them the ability to "
"record their own lives in a way they had never been able to do before. As "
"author Brian Coe notes, \"For the first time the snapshot album provided the "
"man on the street with a permanent record of his family and its "
"activities. &hellip; For the first time in history there exists an authentic "
"visual record of the appearance and activities of the common man made "
"without [literary] interpretation or bias.\"<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1833
msgid ""
"In this way, the Kodak camera and film were technologies of expression.  The "
"pencil or paintbrush was also a technology of expression, of course. But it "
"took years of training before they could be deployed by amateurs in any "
"useful or effective way. With the Kodak, expression was possible much sooner "
"and more simply. The barrier to expression was lowered. Snobs would sneer at "
"its \"quality\"; professionals would discount it as irrelevant. But watch a "
"child study how best to frame a picture and you get a sense of the "
"experience of creativity that the Kodak enabled. Democratic tools gave "
"ordinary people a way to express themselves more easily than any tools could "
"have before."
msgstr ""

#.  f6 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1855
msgid ""
"For illustrative cases, see, for example, <citetitle>Pavesich</citetitle> "
"v. <citetitle>N.E. Life Ins. Co</citetitle>., 50 S.E. 68 (Ga. 1905); "
"<citetitle>Foster-Milburn Co</citetitle>. v. <citetitle>Chinn</citetitle>, "
"123090 S.W. 364, 366 (Ky. 1909); <citetitle>Corliss</citetitle> "
"v. <citetitle>Walker</citetitle>, 64 F. 280 (Mass.  Dist. Ct. 1894)."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1846
msgid ""
"What was required for this technology to flourish? Obviously, Eastman's "
"genius was an important part. But also important was the legal environment "
"within which Eastman's invention grew. For early in the history of "
"photography, there was a series of judicial decisions that could well have "
"changed the course of photography substantially.  Courts were asked whether "
"the photographer, amateur or professional, required permission before he "
"could capture and print whatever image he wanted. Their answer was "
"no.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 47 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1863
msgid ""
"The arguments in favor of requiring permission will sound surprisingly "
"familiar. The photographer was \"taking\" something from the person or "
"building whose photograph he shot&mdash;pirating something of value. Some "
"even thought he was taking the target's soul. Just as Disney was not free to "
"take the pencils that his animators used to draw Mickey, so, too, should "
"these photographers not be free to take images that they thought valuable."
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:1885
msgid "Warren, Samuel D."
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1882
msgid ""
"Samuel D. Warren and Louis D. Brandeis, \"The Right to Privacy,\" "
"<citetitle>Harvard Law Review</citetitle> 4 (1890): 193.  <placeholder "
"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1875
msgid ""
"On the other side was an argument that should be familiar, as well.  Sure, "
"there may be something of value being used. But citizens should have the "
"right to capture at least those images that stand in public view.  (Louis "
"Brandeis, who would become a Supreme Court Justice, thought the rule should "
"be different for images from private spaces.<placeholder type=\"footnote\" "
"id=\"0\"/>) It may be that this means that the photographer gets something "
"for nothing. Just as Disney could take inspiration from <citetitle>Steamboat "
"Bill, Jr</citetitle>. or the Brothers Grimm, the photographer should be free "
"to capture an image without compensating the source."
msgstr ""

#.  f8 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1902
msgid ""
"See Melville B. Nimmer, \"The Right of Publicity,\" <citetitle>Law and "
"Contemporary Problems</citetitle> 19 (1954): 203; William L. Prosser, "
"\"Privacy,\" <citetitle>California Law Review</citetitle> 48 (1960) "
"398&ndash;407; <citetitle>White</citetitle> v. <citetitle>Samsung "
"Electronics America, Inc</citetitle>., 971 F.  2d 1395 (9th Cir. 1992), "
"cert. denied, 508 U.S. 951 (1993)."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1892
msgid ""
"Fortunately for Mr. Eastman, and for photography in general, these early "
"decisions went in favor of the pirates. In general, no permission would be "
"required before an image could be captured and shared with others. Instead, "
"permission was presumed. Freedom was the default.  (The law would eventually "
"craft an exception for famous people: commercial photographers who snap "
"pictures of famous people for commercial purposes have more restrictions "
"than the rest of us. But in the ordinary case, the image can be captured "
"without clearing the rights to do the capturing.<placeholder "
"type=\"footnote\" id=\"0\"/>)"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1910
msgid ""
"We can only speculate about how photography would have developed had the law "
"gone the other way. If the presumption had been against the photographer, "
"then the photographer would have had to demonstrate permission. Perhaps "
"Eastman Kodak would have had to demonstrate permission, too, before it "
"developed the film upon which images were captured. After all, if permission "
"were not granted, then Eastman Kodak would be benefiting from the \"theft\" "
"committed by the photographer. Just as Napster benefited from the copyright "
"infringements committed by Napster users, Kodak would be benefiting from the "
"\"image-right\" infringement of its photographers. We could imagine the law "
"then requiring that some form of permission be demonstrated before a company "
"developed pictures. We could imagine a system developing to demonstrate that "
"permission."
msgstr ""

#.  PAGE BREAK 48 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1927
msgid ""
"But though we could imagine this system of permission, it would be very hard "
"to see how photography could have flourished as it did if the requirement "
"for permission had been built into the rules that govern it. Photography "
"would have existed. It would have grown in importance over "
"time. Professionals would have continued to use the technology as they "
"did&mdash;since professionals could have more easily borne the burdens of "
"the permission system. But the spread of photography to ordinary people "
"would not have occurred. Nothing like that growth would have been "
"realized. And certainly, nothing like that growth in a democratic technology "
"of expression would have been realized.  If you drive through San "
"Francisco's Presidio, you might see two gaudy yellow school buses painted "
"over with colorful and striking images, and the logo \"Just Think!\" in "
"place of the name of a school. But there's little that's \"just\" cerebral "
"in the projects that these busses enable.  These buses are filled with "
"technologies that teach kids to tinker with film. Not the film of "
"Eastman. Not even the film of your VCR.  Rather the \"film\" of digital "
"cameras. Just Think! is a project that enables kids to make films, as a way "
"to understand and critique the filmed culture that they find all around "
"them. Each year, these busses travel to more than thirty schools and enable "
"three hundred to five hundred children to learn something about media by "
"doing something with media.  By doing, they think. By tinkering, they learn."
msgstr ""

#.  f9 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1960
msgid ""
"H. Edward Goldberg, \"Essential Presentation Tools: Hardware and Software "
"You Need to Create Digital Multimedia Presentations,\" cadalyst, February "
"2002, available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#7</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1954
msgid ""
"These buses are not cheap, but the technology they carry is increasingly "
"so. The cost of a high-quality digital video system has fallen "
"dramatically.  As one analyst puts it, \"Five years ago, a good real-time "
"digital video editing system cost $25,000. Today you can get professional "
"quality for $595.\"<placeholder type=\"footnote\" id=\"0\"/> These buses are "
"filled with technology that would have cost hundreds of thousands just ten "
"years ago. And it is now feasible to imagine not just buses like this, but "
"classrooms across the country where kids are learning more and more of "
"something teachers call \"media literacy.\""
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:1977
msgid "Yanofsky, Dave"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1972
msgid ""
"\"Media literacy,\" as Dave Yanofsky, the executive director of Just Think!, "
"puts it, \"is the ability &hellip; to understand, analyze, and deconstruct "
"media images. Its aim is to make [kids] literate about the way media works, "
"the way it's constructed, the way it's delivered, and the way people access "
"it.\" <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1980
msgid ""
"This may seem like an odd way to think about \"literacy.\" For most people, "
"literacy is about reading and writing. Faulkner and Hemingway and noticing "
"split infinitives are the things that \"literate\" people know about."
msgstr ""

#.  f10 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1990
msgid ""
"Judith Van Evra, <citetitle>Television and Child Development</citetitle> "
"(Hillsdale, N.J.: Lawrence Erlbaum Associates, 1990); \"Findings on Family "
"and TV Study,\" <citetitle>Denver Post</citetitle>, 25 May 1997, B6."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1986
msgid ""
"Maybe. But in a world where children see on average 390 hours of television "
"commercials per year, or between 20,000 and 45,000 commercials "
"generally,<placeholder type=\"footnote\" id=\"0\"/> it is increasingly "
"important to understand the \"grammar\" of media. For just as there is a "
"grammar for the written word, so, too, is there one for media. And just as "
"kids learn how to write by writing lots of terrible prose, kids learn how to "
"write media by constructing lots of (at least at first) terrible media."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2001
msgid ""
"A growing field of academics and activists sees this form of literacy as "
"crucial to the next generation of culture. For though anyone who has written "
"understands how difficult writing is&mdash;how difficult it is to sequence "
"the story, to keep a reader's attention, to craft language to be "
"understandable&mdash;few of us have any real sense of how difficult media "
"is. Or more fundamentally, few of us have a sense of how media works, how it "
"holds an audience or leads it through a story, how it triggers emotion or "
"builds suspense."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2011
msgid ""
"It took filmmaking a generation before it could do these things well.  But "
"even then, the knowledge was in the filming, not in writing about the "
"film. The skill came from experiencing the making of a film, not from "
"reading a book about it. One learns to write by writing and then reflecting "
"upon what one has written. One learns to write with images by making them "
"and then reflecting upon what one has created."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2018
msgid "Crichton, Michael"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2032 freeculture.xml:2092 freeculture.xml:2099 freeculture.xml:2534
msgid "Barish, Stephanie"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:2033
msgid "Daley, Elizabeth"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2030
msgid ""
"Interview with Elizabeth Daley and Stephanie Barish, 13 December 2002.  "
"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
"id=\"1\"/>"
msgstr ""

#.  f12 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2044
msgid ""
"See Scott Steinberg, \"Crichton Gets Medieval on PCs,\" E!online, 4 November "
"2000, available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#8</ulink>; \"Timeline,\" 22 November 2000, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #9</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2020
msgid ""
"This grammar has changed as media has changed. When it was just film, as "
"Elizabeth Daley, executive director of the University of Southern "
"California's Annenberg Center for Communication and dean of the USC School "
"of Cinema-Television, explained to me, the grammar was about \"the placement "
"of objects, color, &hellip; rhythm, pacing, and texture.\"<placeholder "
"type=\"footnote\" id=\"0\"/> But as computers open up an interactive space "
"where a story is \"played\" as well as experienced, that grammar "
"changes. The simple control of narrative is lost, and so other techniques "
"are necessary. Author Michael Crichton had mastered the narrative of science "
"fiction.  But when he tried to design a computer game based on one of his "
"works, it was a new craft he had to learn. How to lead people through a game "
"without their feeling they have been led was not obvious, even to a wildly "
"successful author.<placeholder type=\"footnote\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2051
msgid "computer games"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2053
msgid ""
"This skill is precisely the craft a filmmaker learns. As Daley describes, "
"\"people are very surprised about how they are led through a film. [I]t is "
"perfectly constructed to keep you from seeing it, so you have no idea. If a "
"filmmaker succeeds you do not know how you were led.\" If you know you were "
"led through a film, the film has failed."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2060
msgid ""
"Yet the push for an expanded literacy&mdash;one that goes beyond text to "
"include audio and visual elements&mdash;is not about making better film "
"directors.  The aim is not to improve the profession of filmmaking at all.  "
"Instead, as Daley explained,"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:2067
msgid ""
"From my perspective, probably the most important digital divide is not "
"access to a box. It's the ability to be empowered with the language that "
"that box works in. Otherwise only a very few people can write with this "
"language, and all the rest of us are reduced to being read-only."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2075
msgid ""
"\"Read-only.\" Passive recipients of culture produced elsewhere.  Couch "
"potatoes. Consumers. This is the world of media from the twentieth century."
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2091
msgid "Interview with Daley and Barish.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#.  f31 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:2096 freeculture.xml:3827 freeculture.xml:4865 freeculture.xml:8024
msgid "Ibid."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2080
msgid ""
"The twenty-first century could be different. This is the crucial point: It "
"could be both read and write. Or at least reading and better understanding "
"the craft of writing. Or best, reading and understanding the tools that "
"enable the writing to lead or mislead. The aim of any literacy, and this "
"literacy in particular, is to \"empower people to choose the appropriate "
"language for what they need to create or express.\"<placeholder "
"type=\"footnote\" id=\"0\"/> It is to enable students \"to communicate in "
"the language of the twenty-first century.\"<placeholder type=\"footnote\" "
"id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2101
msgid ""
"As with any language, this language comes more easily to some than to "
"others. It doesn't necessarily come more easily to those who excel in "
"written language. Daley and Stephanie Barish, director of the Institute for "
"Multimedia Literacy at the Annenberg Center, describe one particularly "
"poignant example of a project they ran in a high school.  The high school "
"was a very poor inner-city Los Angeles school. In all the traditional "
"measures of success, this school was a failure. But Daley and Barish ran a "
"program that gave kids an opportunity to use film to express meaning about "
"something the students know something about&mdash;gun violence."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2113
msgid ""
"The class was held on Friday afternoons, and it created a relatively new "
"problem for the school. While the challenge in most classes was getting the "
"kids to come, the challenge in this class was keeping them away. The \"kids "
"were showing up at 6 A.M. and leaving at 5 at night,\" said Barish. They "
"were working harder than in any other class to do what education should be "
"about&mdash;learning how to express themselves."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2121
msgid ""
"Using whatever \"free web stuff they could find,\" and relatively simple "
"tools to enable the kids to mix \"image, sound, and text,\" Barish said this "
"class produced a series of projects that showed something about gun violence "
"that few would otherwise understand. This was an issue close to the lives of "
"these students. The project \"gave them a tool and empowered them to be able "
"to both understand it and talk about it,\" Barish explained. That tool "
"succeeded in creating expression&mdash;far more successfully and powerfully "
"than could have been created using only text. \"If you had said to these "
"students, `you have to do it in text,' they would've just thrown their hands "
"up and gone and done something else,\" Barish described, in part, no doubt, "
"because expressing themselves in text is not something these students can do "
"well. Yet neither is text a form in which <emphasis>these</emphasis> ideas "
"can be expressed well. The power of this message depended upon its "
"connection to this form of expression."
msgstr ""

#.  PAGE BREAK 52 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2140
msgid ""
"\"But isn't education about teaching kids to write?\" I asked. In part, of "
"course, it is. But why are we teaching kids to write? Education, Daley "
"explained, is about giving students a way of \"constructing meaning.\" To "
"say that that means just writing is like saying teaching writing is only "
"about teaching kids how to spell. Text is one part&mdash;and increasingly, "
"not the most powerful part&mdash;of constructing meaning. As Daley explained "
"in the most moving part of our interview,"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:2151
msgid ""
"What you want is to give these students ways of constructing meaning. If all "
"you give them is text, they're not going to do it.  Because they can't. You "
"know, you've got Johnny who can look at a video, he can play a video game, "
"he can do graffiti all over your walls, he can take your car apart, and he "
"can do all sorts of other things. He just can't read your text. So Johnny "
"comes to school and you say, \"Johnny, you're illiterate. Nothing you can do "
"matters.\" Well, Johnny then has two choices: He can dismiss you or he [can] "
"dismiss himself. If his ego is healthy at all, he's going to dismiss "
"you. [But i]nstead, if you say, \"Well, with all these things that you can "
"do, let's talk about this issue. Play for me music that you think reflects "
"that, or show me images that you think reflect that, or draw for me "
"something that reflects that.\" Not by giving a kid a video camera and "
"&hellip; saying, \"Let's go have fun with the video camera and make a little "
"movie.\" But instead, really help you take these elements that you "
"understand, that are your language, and construct meaning about the "
"topic.&hellip;"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:2170
msgid ""
"That empowers enormously. And then what happens, of course, is eventually, "
"as it has happened in all these classes, they bump up against the fact, \"I "
"need to explain this and I really need to write something.\" And as one of "
"the teachers told Stephanie, they would rewrite a paragraph 5, 6, 7, 8 "
"times, till they got it right."
msgstr ""

#.  PAGE BREAK 53 
#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:2177
msgid ""
"Because they needed to. There was a reason for doing it. They needed to say "
"something, as opposed to just jumping through your hoops. They actually "
"needed to use a language that they didn't speak very well. But they had come "
"to understand that they had a lot of power with this language.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2186
msgid ""
"When two planes crashed into the World Trade Center, another into the "
"Pentagon, and a fourth into a Pennsylvania field, all media around the world "
"shifted to this news. Every moment of just about every day for that week, "
"and for weeks after, television in particular, and media generally, retold "
"the story of the events we had just witnessed. The telling was a retelling, "
"because we had seen the events that were described. The genius of this awful "
"act of terrorism was that the delayed second attack was perfectly timed to "
"assure that the whole world would be watching."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2197
msgid ""
"These retellings had an increasingly familiar feel. There was music scored "
"for the intermissions, and fancy graphics that flashed across the "
"screen. There was a formula to interviews. There was \"balance,\" and "
"seriousness. This was news choreographed in the way we have increasingly "
"come to expect it, \"news as entertainment,\" even if the entertainment is "
"tragedy."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:2204 freeculture.xml:7963 freeculture.xml:8199
msgid "ABC"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2205
msgid "CBS"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2207
msgid ""
"But in addition to this produced news about the \"tragedy of September 11,\" "
"those of us tied to the Internet came to see a very different production as "
"well. The Internet was filled with accounts of the same events. Yet these "
"Internet accounts had a very different flavor. Some people constructed photo "
"pages that captured images from around the world and presented them as slide "
"shows with text. Some offered open letters. There were sound "
"recordings. There was anger and frustration.  There were attempts to provide "
"context. There was, in short, an extraordinary worldwide barn raising, in "
"the sense Mike Godwin uses the term in his book <citetitle>Cyber "
"Rights</citetitle>, around a news event that had captured the attention of "
"the world. There was ABC and CBS, but there was also the Internet."
msgstr ""

#.  PAGE BREAK 54 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2221
msgid ""
"I don't mean simply to praise the Internet&mdash;though I do think the "
"people who supported this form of speech should be praised. I mean instead "
"to point to a significance in this form of speech. For like a Kodak, the "
"Internet enables people to capture images. And like in a movie by a student "
"on the \"Just Think!\" bus, the visual images could be mixed with sound or "
"text."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2231
msgid ""
"But unlike any technology for simply capturing images, the Internet allows "
"these creations to be shared with an extraordinary number of people, "
"practically instantaneously. This is something new in our "
"tradition&mdash;not just that culture can be captured mechanically, and "
"obviously not just that events are commented upon critically, but that this "
"mix of captured images, sound, and commentary can be widely spread "
"practically instantaneously."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2240
msgid ""
"September 11 was not an aberration. It was a beginning. Around the same "
"time, a form of communication that has grown dramatically was just beginning "
"to come into public consciousness: the Web-log, or blog. The blog is a kind "
"of public diary, and within some cultures, such as in Japan, it functions "
"very much like a diary. In those cultures, it records private facts in a "
"public way&mdash;it's a kind of electronic <citetitle>Jerry "
"Springer</citetitle>, available anywhere in the world."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2249
msgid ""
"But in the United States, blogs have taken on a very different character.  "
"There are some who use the space simply to talk about their private "
"life. But there are many who use the space to engage in public "
"discourse. Discussing matters of public import, criticizing others who are "
"mistaken in their views, criticizing politicians about the decisions they "
"make, offering solutions to problems we all see: blogs create the sense of a "
"virtual public meeting, but one in which we don't all hope to be there at "
"the same time and in which conversations are not necessarily linked. The "
"best of the blog entries are relatively short; they point directly to words "
"used by others, criticizing with or adding to them.  They are arguably the "
"most important form of unchoreographed public discourse that we have."
msgstr ""

#.  PAGE BREAK 55 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2263
msgid ""
"That's a strong statement. Yet it says as much about our democracy as it "
"does about blogs. This is the part of America that is most difficult for "
"those of us who love America to accept: Our democracy has atrophied.  Of "
"course we have elections, and most of the time the courts allow those "
"elections to count. A relatively small number of people vote in those "
"elections. The cycle of these elections has become totally professionalized "
"and routinized. Most of us think this is democracy."
msgstr ""

#.  f15 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2289
msgid ""
"See, for example, Alexis de Tocqueville, <citetitle>Democracy in "
"America</citetitle>, bk. 1, trans.  Henry Reeve (New York: Bantam Books, "
"2000), ch. 16."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2274
msgid ""
"But democracy has never just been about elections. Democracy means rule by "
"the people, but rule means something more than mere elections. In our "
"tradition, it also means control through reasoned discourse.  This was the "
"idea that captured the imagination of Alexis de Tocqueville, the "
"nineteenth-century French lawyer who wrote the most important account of "
"early \"Democracy in America.\" It wasn't popular elections that fascinated "
"him&mdash;it was the jury, an institution that gave ordinary people the "
"right to choose life or death for other citizens.  And most fascinating for "
"him was that the jury didn't just vote about the outcome they would "
"impose. They deliberated. Members argued about the \"right\" result; they "
"tried to persuade each other of the \"right\" result, and in criminal cases "
"at least, they had to agree upon a unanimous result for the process to come "
"to an end.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  f16 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2298
msgid ""
"Bruce Ackerman and James Fishkin, \"Deliberation Day,\" <citetitle>Journal "
"of Political Philosophy</citetitle> 10 (2) (2002): 129."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2294
msgid ""
"Yet even this institution flags in American life today. And in its place, "
"there is no systematic effort to enable citizen deliberation. Some are "
"pushing to create just such an institution.<placeholder type=\"footnote\" "
"id=\"0\"/> And in some towns in New England, something close to deliberation "
"remains. But for most of us for most of the time, there is no time or place "
"for \"democratic deliberation\" to occur."
msgstr ""

#.  f17 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2313
msgid ""
"Cass Sunstein, <citetitle>Republic.com</citetitle> (Princeton: Princeton "
"University Press, 2001), 65&ndash;80, 175, 182, 183, 192."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2306
msgid ""
"More bizarrely, there is generally not even permission for it to occur.  We, "
"the most powerful democracy in the world, have developed a strong norm "
"against talking about politics. It's fine to talk about politics with people "
"you agree with. But it is rude to argue about politics with people you "
"disagree with. Political discourse becomes isolated, and isolated discourse "
"becomes more extreme.<placeholder type=\"footnote\" id=\"0\"/> We say what "
"our friends want to hear, and hear very little beyond what our friends say."
msgstr ""

#.  PAGE BREAK 56 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2319
msgid ""
"Enter the blog. The blog's very architecture solves one part of this "
"problem. People post when they want to post, and people read when they want "
"to read. The most difficult time is synchronous time.  Technologies that "
"enable asynchronous communication, such as e-mail, increase the opportunity "
"for communication. Blogs allow for public discourse without the public ever "
"needing to gather in a single public place."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2330
msgid ""
"But beyond architecture, blogs also have solved the problem of "
"norms. There's no norm (yet) in blog space not to talk about politics.  "
"Indeed, the space is filled with political speech, on both the right and the "
"left. Some of the most popular sites are conservative or libertarian, but "
"there are many of all political stripes. And even blogs that are not "
"political cover political issues when the occasion merits."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:2342
msgid "Dean, Howard"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2338
msgid ""
"The significance of these blogs is tiny now, though not so tiny. The name "
"Howard Dean may well have faded from the 2004 presidential race but for "
"blogs. Yet even if the number of readers is small, the reading is having an "
"effect.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#.  f18 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2356
msgid ""
"Noah Shachtman, \"With Incessant Postings, a Pundit Stirs the Pot,\" New "
"York Times, 16 January 2003, G5."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:2359
msgid "Lott, Trent"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2345
msgid ""
"One direct effect is on stories that had a different life cycle in the "
"mainstream media. The Trent Lott affair is an example. When Lott "
"\"misspoke\" at a party for Senator Strom Thurmond, essentially praising "
"Thurmond's segregationist policies, he calculated correctly that this story "
"would disappear from the mainstream press within forty-eight hours. It "
"did. But he didn't calculate its life cycle in blog space. The bloggers kept "
"researching the story. Over time, more and more instances of the same "
"\"misspeaking\" emerged. Finally, the story broke back into the mainstream "
"press. In the end, Lott was forced to resign as senate majority "
"leader.<placeholder type=\"footnote\" id=\"0\"/> <placeholder "
"type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2362
msgid ""
"This different cycle is possible because the same commercial pressures don't "
"exist with blogs as with other ventures. Television and newspapers are "
"commercial entities. They must work to keep attention.  If they lose "
"readers, they lose revenue. Like sharks, they must move on."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2369
msgid ""
"But bloggers don't have a similar constraint. They can obsess, they can "
"focus, they can get serious. If a particular blogger writes a particularly "
"interesting story, more and more people link to that story. And as the "
"number of links to a particular story increases, it rises in the ranks of "
"stories. People read what is popular; what is popular has been selected by a "
"very democratic process of peer-generated rankings."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2378
msgid "Winer, Dave"
msgstr ""

#.  PAGE BREAK 57 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2381
msgid ""
"There's a second way, as well, in which blogs have a different cycle from "
"the mainstream press. As Dave Winer, one of the fathers of this movement and "
"a software author for many decades, told me, another difference is the "
"absence of a financial \"conflict of interest.\" \"I think you have to take "
"the conflict of interest\" out of journalism, Winer told me.  \"An amateur "
"journalist simply doesn't have a conflict of interest, or the conflict of "
"interest is so easily disclosed that you know you can sort of get it out of "
"the way.\""
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:2391 freeculture.xml:2444
msgid "CNN"
msgstr ""

#.  f19 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2399
msgid "Telephone interview with David Winer, 16 April 2003."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2393
msgid ""
"These conflicts become more important as media becomes more concentrated "
"(more on this below). A concentrated media can hide more from the public "
"than an unconcentrated media can&mdash;as CNN admitted it did after the Iraq "
"war because it was afraid of the consequences to its own "
"employees.<placeholder type=\"footnote\" id=\"0\"/> It also needs to sustain "
"a more coherent account. (In the middle of the Iraq war, I read a post on "
"the Internet from someone who was at that time listening to a satellite "
"uplink with a reporter in Iraq. The New York headquarters was telling the "
"reporter over and over that her account of the war was too bleak: She needed "
"to offer a more optimistic story. When she told New York that wasn't "
"warranted, they told her <emphasis>that</emphasis> they were writing \"the "
"story.\")"
msgstr ""

#.  f20 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2417
msgid ""
"John Schwartz, \"Loss of the Shuttle: The Internet; A Wealth of Information "
"Online,\" <citetitle>New York Times</citetitle>, 2 February 2003, A28; Staci "
"D. Kramer, \"Shuttle Disaster Coverage Mixed, but Strong Overall,\" Online "
"Journalism Review, 2 February 2003, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #10</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2409
msgid ""
"Blog space gives amateurs a way to enter the debate&mdash;\"amateur\" not in "
"the sense of inexperienced, but in the sense of an Olympic athlete, meaning "
"not paid by anyone to give their reports. It allows for a much broader range "
"of input into a story, as reporting on the Columbia disaster revealed, when "
"hundreds from across the southwest United States turned to the Internet to "
"retell what they had seen.<placeholder type=\"footnote\" id=\"0\"/> And it "
"drives readers to read across the range of accounts and \"triangulate,\" as "
"Winer puts it, the truth. Blogs, Winer says, are \"communicating directly "
"with our constituency, and the middle man is out of it\"&mdash;with all the "
"benefits, and costs, that might entail."
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2436
msgid ""
"See Michael Falcone, \"Does an Editor's Pencil Ruin a Web Log?\" "
"<citetitle>New York Times</citetitle>, 29 September 2003, C4. (\"Not all "
"news organizations have been as accepting of employees who blog. Kevin "
"Sites, a CNN correspondent in Iraq who started a blog about his reporting of "
"the war on March 9, stopped posting 12 days later at his bosses' "
"request. Last year Steve Olafson, a <citetitle>Houston Chronicle</citetitle> "
"reporter, was fired for keeping a personal Web log, published under a "
"pseudonym, that dealt with some of the issues and people he was covering.\")  "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 58 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2429
msgid ""
"Winer is optimistic about the future of journalism infected with "
"blogs. \"It's going to become an essential skill,\" Winer predicts, for "
"public figures and increasingly for private figures as well. It's not clear "
"that \"journalism\" is happy about this&mdash;some journalists have been "
"told to curtail their blogging.<placeholder type=\"footnote\" id=\"0\"/> But "
"it is clear that we are still in transition. \"A lot of what we are doing "
"now is warm-up exercises,\" Winer told me.  There is a lot that must mature "
"before this space has its mature effect.  And as the inclusion of content in "
"this space is the least infringing use of the Internet (meaning infringing "
"on copyright), Winer said, \"we will be the last thing that gets shut "
"down.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2456
msgid ""
"This speech affects democracy. Winer thinks that happens because \"you don't "
"have to work for somebody who controls, [for] a gatekeeper.\" That is "
"true. But it affects democracy in another way as well.  As more and more "
"citizens express what they think, and defend it in writing, that will change "
"the way people understand public issues. It is easy to be wrong and "
"misguided in your head. It is harder when the product of your mind can be "
"criticized by others. Of course, it is a rare human who admits that he has "
"been persuaded that he is wrong. But it is even rarer for a human to ignore "
"when he has been proven wrong.  The writing of ideas, arguments, and "
"criticism improves democracy.  Today there are probably a couple of million "
"blogs where such writing happens. When there are ten million, there will be "
"something extraordinary to report."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2472
msgid "Brown, John Seely"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2475
msgid ""
"John Seely Brown is the chief scientist of the Xerox Corporation.  His work, "
"as his Web site describes it, is \"human learning and &hellip; the creation "
"of knowledge ecologies for creating &hellip; innovation.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2480
msgid ""
"Brown thus looks at these technologies of digital creativity a bit "
"differently from the perspectives I've sketched so far. I'm sure he would be "
"excited about any technology that might improve democracy. But his real "
"excitement comes from how these technologies affect learning."
msgstr ""

#.  PAGE BREAK 59 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2487
msgid ""
"As Brown believes, we learn by tinkering. When \"a lot of us grew up,\" he "
"explains, that tinkering was done \"on motorcycle engines, lawnmower "
"engines, automobiles, radios, and so on.\" But digital technologies enable a "
"different kind of tinkering&mdash;with abstract ideas though in concrete "
"form. The kids at Just Think! not only think about how a commercial portrays "
"a politician; using digital technology, they can take the commercial apart "
"and manipulate it, tinker with it to see how it does what it does. Digital "
"technologies launch a kind of bricolage, or \"free collage,\" as Brown calls "
"it. Many get to add to or transform the tinkering of many others."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2500
msgid ""
"The best large-scale example of this kind of tinkering so far is free "
"software or open-source software (FS/OSS). FS/OSS is software whose source "
"code is shared. Anyone can download the technology that makes a FS/OSS "
"program run. And anyone eager to learn how a particular bit of FS/OSS "
"technology works can tinker with the code."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2507
msgid ""
"This opportunity creates a \"completely new kind of learning platform,\" as "
"Brown describes. \"As soon as you start doing that, you &hellip; unleash a "
"free collage on the community, so that other people can start looking at "
"your code, tinkering with it, trying it out, seeing if they can improve "
"it.\" Each effort is a kind of apprenticeship. \"Open source becomes a major "
"apprenticeship platform.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2515
msgid ""
"In this process, \"the concrete things you tinker with are abstract.  They "
"are code.\" Kids are \"shifting to the ability to tinker in the abstract, "
"and this tinkering is no longer an isolated activity that you're doing in "
"your garage. You are tinkering with a community platform. &hellip; You are "
"tinkering with other people's stuff. The more you tinker the more you "
"improve.\" The more you improve, the more you learn."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2524
msgid ""
"This same thing happens with content, too. And it happens in the same "
"collaborative way when that content is part of the Web. As Brown puts it, "
"\"the Web [is] the first medium that truly honors multiple forms of "
"intelligence.\" Earlier technologies, such as the typewriter or word "
"processors, helped amplify text. But the Web amplifies much more than "
"text. \"The Web &hellip; says if you are musical, if you are artistic, if "
"you are visual, if you are interested in film &hellip; [then] there is a lot "
"you can start to do on this medium. [It] can now amplify and honor these "
"multiple forms of intelligence.\""
msgstr ""

#.  PAGE BREAK 60 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2536
msgid ""
"Brown is talking about what Elizabeth Daley, Stephanie Barish, and Just "
"Think! teach: that this tinkering with culture teaches as well as "
"creates. It develops talents differently, and it builds a different kind of "
"recognition."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2544
msgid ""
"Yet the freedom to tinker with these objects is not guaranteed.  Indeed, as "
"we'll see through the course of this book, that freedom is increasingly "
"highly contested. While there's no doubt that your father had the right to "
"tinker with the car engine, there's great doubt that your child will have "
"the right to tinker with the images she finds all around.  The law and, "
"increasingly, technology interfere with a freedom that technology, and "
"curiosity, would otherwise ensure."
msgstr ""

#.  f22 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2560
msgid ""
"See, for example, Edward Felten and Andrew Appel, \"Technological Access "
"Control Interferes with Noninfringing Scholarship,\" "
"<citetitle>Communications of the Association for Computer "
"Machinery</citetitle> 43 (2000): 9."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2553
msgid ""
"These restrictions have become the focus of researchers and scholars.  "
"Professor Ed Felten of Princeton (whom we'll see more of in chapter <xref "
"xrefstyle=\"select: labelnumber\" linkend=\"property-i\"/>)  has developed a "
"powerful argument in favor of the \"right to tinker\" as it applies to "
"computer science and to knowledge in general.<placeholder type=\"footnote\" "
"id=\"0\"/> But Brown's concern is earlier, or younger, or more "
"fundamental. It is about the learning that kids can do, or can't do, because "
"of the law."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2568
msgid ""
"\"This is where education in the twenty-first century is going,\" Brown "
"explains. We need to \"understand how kids who grow up digital think and "
"want to learn.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2573
msgid ""
"\"Yet,\" as Brown continued, and as the balance of this book will evince, "
"\"we are building a legal system that completely suppresses the natural "
"tendencies of today's digital kids. &hellip; We're building an architecture "
"that unleashes 60 percent of the brain [and] a legal system that closes down "
"that part of the brain.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2581
msgid ""
"We're building a technology that takes the magic of Kodak, mixes moving "
"images and sound, and adds a space for commentary and an opportunity to "
"spread that creativity everywhere. But we're building the law to close down "
"that technology."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2587
msgid ""
"\"No way to run a culture,\" as Brewster Kahle, whom we'll meet in chapter "
"<xref xrefstyle=\"select: labelnumber\" linkend=\"collectors\"/>, quipped to "
"me in a rare moment of despondence."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:2594
msgid "CHAPTER THREE: Catalogs"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2596
msgid ""
"In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as a "
"freshman at Rensselaer Polytechnic Institute, in Troy, New York.  His major "
"at RPI was information technology. Though he is not a programmer, in October "
"Jesse decided to begin to tinker with search engine technology that was "
"available on the RPI network."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2603
msgid ""
"RPI is one of America's foremost technological research institutions.  It "
"offers degrees in fields ranging from architecture and engineering to "
"information sciences. More than 65 percent of its five thousand "
"undergraduates finished in the top 10 percent of their high school "
"class. The school is thus a perfect mix of talent and experience to imagine "
"and then build, a generation for the network age."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2611
msgid ""
"RPI's computer network links students, faculty, and administration to one "
"another. It also links RPI to the Internet. Not everything available on the "
"RPI network is available on the Internet. But the network is designed to "
"enable students to get access to the Internet, as well as more intimate "
"access to other members of the RPI community."
msgstr ""

#.  PAGE BREAK 62 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2618
msgid ""
"Search engines are a measure of a network's intimacy. Google brought the "
"Internet much closer to all of us by fantastically improving the quality of "
"search on the network. Specialty search engines can do this even better. The "
"idea of \"intranet\" search engines, search engines that search within the "
"network of a particular institution, is to provide users of that institution "
"with better access to material from that institution.  Businesses do this "
"all the time, enabling employees to have access to material that people "
"outside the business can't get. Universities do it as well."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2630
msgid ""
"These engines are enabled by the network technology itself.  Microsoft, for "
"example, has a network file system that makes it very easy for search "
"engines tuned to that network to query the system for information about the "
"publicly (within that network) available content.  Jesse's search engine was "
"built to take advantage of this technology. It used Microsoft's network file "
"system to build an index of all the files available within the RPI network."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2639
msgid ""
"Jesse's wasn't the first search engine built for the RPI network.  Indeed, "
"his engine was a simple modification of engines that others had built. His "
"single most important improvement over those engines was to fix a bug within "
"the Microsoft file-sharing system that could cause a user's computer to "
"crash. With the engines that existed before, if you tried to access a file "
"through a Windows browser that was on a computer that was off-line, your "
"computer could crash. Jesse modified the system a bit to fix that problem, "
"by adding a button that a user could click to see if the machine holding the "
"file was still on-line."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2651
msgid ""
"Jesse's engine went on-line in late October. Over the following six months, "
"he continued to tweak it to improve its functionality. By March, the system "
"was functioning quite well. Jesse had more than one million files in his "
"directory, including every type of content that might be on users' "
"computers."
msgstr ""

#.  PAGE BREAK 63 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2658
msgid ""
"Thus the index his search engine produced included pictures, which students "
"could use to put on their own Web sites; copies of notes or research; copies "
"of information pamphlets; movie clips that students might have created; "
"university brochures&mdash;basically anything that users of the RPI network "
"made available in a public folder of their computer."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2667
msgid ""
"But the index also included music files. In fact, one quarter of the files "
"that Jesse's search engine listed were music files. But that means, of "
"course, that three quarters were not, and&mdash;so that this point is "
"absolutely clear&mdash;Jesse did nothing to induce people to put music files "
"in their public folders. He did nothing to target the search engine to these "
"files. He was a kid tinkering with a Google-like technology at a university "
"where he was studying information science, and hence, tinkering was the "
"aim. Unlike Google, or Microsoft, for that matter, he made no money from "
"this tinkering; he was not connected to any business that would make any "
"money from this experiment. He was a kid tinkering with technology in an "
"environment where tinkering with technology was precisely what he was "
"supposed to do."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2682
msgid ""
"On April 3, 2003, Jesse was contacted by the dean of students at RPI. The "
"dean informed Jesse that the Recording Industry Association of America, the "
"RIAA, would be filing a lawsuit against him and three other students whom he "
"didn't even know, two of them at other universities.  A few hours later, "
"Jesse was served with papers from the suit.  As he read these papers and "
"watched the news reports about them, he was increasingly astonished."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2691
msgid ""
"\"It was absurd,\" he told me. \"I don't think I did anything "
"wrong. &hellip; I don't think there's anything wrong with the search engine "
"that I ran or &hellip; what I had done to it. I mean, I hadn't modified it "
"in any way that promoted or enhanced the work of pirates. I just modified "
"the search engine in a way that would make it easier to use\"&mdash;again, a "
"<emphasis>search engine</emphasis>, which Jesse had not himself built, using "
"the Windows filesharing system, which Jesse had not himself built, to enable "
"members of the RPI community to get access to content, which Jesse had not "
"himself created or posted, and the vast majority of which had nothing to do "
"with music."
msgstr ""

#.  PAGE BREAK 64 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2704
msgid ""
"But the RIAA branded Jesse a pirate. They claimed he operated a network and "
"had therefore \"willfully\" violated copyright laws. They demanded that he "
"pay them the damages for his wrong. For cases of \"willful infringement,\" "
"the Copyright Act specifies something lawyers call \"statutory damages.\" "
"These damages permit a copyright owner to claim $150,000 per "
"infringement. As the RIAA alleged more than one hundred specific copyright "
"infringements, they therefore demanded that Jesse pay them at least "
"$15,000,000."
msgstr ""

#.  f1 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2727
msgid ""
"Tim Goral, \"Recording Industry Goes After Campus P-2-P Networks: Suit "
"Alleges $97.8 Billion in Damages,\" <citetitle>Professional Media Group "
"LCC</citetitle> 6 (2003): 5, available at 2003 WL 55179443."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2715
msgid ""
"Similar lawsuits were brought against three other students: one other "
"student at RPI, one at Michigan Technical University, and one at "
"Princeton. Their situations were similar to Jesse's. Though each case was "
"different in detail, the bottom line in each was exactly the same: huge "
"demands for \"damages\" that the RIAA claimed it was entitled to.  If you "
"added up the claims, these four lawsuits were asking courts in the United "
"States to award the plaintiffs close to $100 "
"<emphasis>billion</emphasis>&mdash;six times the <emphasis>total</emphasis> "
"profit of the film industry in 2001.<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2733
msgid ""
"Jesse called his parents. They were supportive but a bit frightened.  An "
"uncle was a lawyer. He began negotiations with the RIAA. They demanded to "
"know how much money Jesse had. Jesse had saved $12,000 from summer jobs and "
"other employment. They demanded $12,000 to dismiss the case."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2740
msgid ""
"The RIAA wanted Jesse to admit to doing something wrong. He refused. They "
"wanted him to agree to an injunction that would essentially make it "
"impossible for him to work in many fields of technology for the rest of his "
"life. He refused. They made him understand that this process of being sued "
"was not going to be pleasant. (As Jesse's father recounted to me, the chief "
"lawyer on the case, Matt Oppenheimer, told Jesse, \"You don't want to pay "
"another visit to a dentist like me.\") And throughout, the RIAA insisted it "
"would not settle the case until it took every penny Jesse had saved."
msgstr ""

#.  PAGE BREAK 65 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2751
msgid ""
"Jesse's family was outraged at these claims. They wanted to fight.  But "
"Jesse's uncle worked to educate the family about the nature of the American "
"legal system. Jesse could fight the RIAA. He might even win. But the cost of "
"fighting a lawsuit like this, Jesse was told, would be at least $250,000. If "
"he won, he would not recover that money. If he won, he would have a piece of "
"paper saying he had won, and a piece of paper saying he and his family were "
"bankrupt."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2761
msgid ""
"So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or "
"$12,000 and a settlement."
msgstr ""

#.  f2 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2773
msgid ""
"Occupational Employment Survey, U.S. Dept. of Labor (2001)  "
"(27&ndash;2042&mdash;Musicians and Singers). See also National Endowment for "
"the Arts, <citetitle>More Than One in a Blue Moon</citetitle> (2000)."
msgstr ""

#.  f3 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2781
msgid ""
"Douglas Lichtman makes a related point in \"KaZaA and Punishment,\" "
"<citetitle>Wall Street Journal</citetitle>, 10 September 2003, A24."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2765
msgid ""
"The recording industry insists this is a matter of law and morality.  Let's "
"put the law aside for a moment and think about the morality.  Where is the "
"morality in a lawsuit like this? What is the virtue in scapegoatism? The "
"RIAA is an extraordinarily powerful lobby. The president of the RIAA is "
"reported to make more than $1 million a year.  Artists, on the other hand, "
"are not well paid. The average recording artist makes $45,900.<placeholder "
"type=\"footnote\" id=\"0\"/> There are plenty of ways for the RIAA to affect "
"and direct policy. So where is the morality in taking money from a student "
"for running a search engine?<placeholder type=\"footnote\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2786
msgid ""
"On June 23, Jesse wired his savings to the lawyer working for the RIAA. The "
"case against him was then dismissed. And with this, this kid who had "
"tinkered a computer into a $15 million lawsuit became an activist:"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:2793
msgid ""
"I was definitely not an activist [before]. I never really meant to be an "
"activist. &hellip; [But] I've been pushed into this. In no way did I ever "
"foresee anything like this, but I think it's just completely absurd what the "
"RIAA has done."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2800
msgid ""
"Jesse's parents betray a certain pride in their reluctant activist. As his "
"father told me, Jesse \"considers himself very conservative, and so do "
"I. &hellip; He's not a tree hugger. &hellip; I think it's bizarre that they "
"would pick on him. But he wants to let people know that they're sending the "
"wrong message. And he wants to correct the record.\""
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:2809
msgid "CHAPTER FOUR: \"Pirates\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2811
msgid ""
"If \"piracy\" means using the creative property of others without their "
"permission&mdash;if \"if value, then right\" is true&mdash;then the history "
"of the content industry is a history of piracy. Every important sector of "
"\"big media\" today&mdash;film, records, radio, and cable TV&mdash;was born "
"of a kind of piracy so defined. The consistent story is how last "
"generation's pirates join this generation's country club&mdash;until now."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:2819
msgid "Film"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:2823
msgid ""
"I am grateful to Peter DiMauro for pointing me to this extraordinary "
"history. See also Siva Vaidhyanathan, <citetitle>Copyrights and "
"Copywrongs</citetitle>, 87&ndash;93, which details Edison's \"adventures\" "
"with copyright and patent.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 67 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:2821
msgid ""
"The film industry of Hollywood was built by fleeing pirates.<placeholder "
"type=\"footnote\" id=\"0\"/> Creators and directors migrated from the East "
"Coast to California in the early twentieth century in part to escape "
"controls that patents granted the inventor of filmmaking, Thomas "
"Edison. These controls were exercised through a monopoly \"trust,\" the "
"Motion Pictures Patents Company, and were based on Thomas Edison's creative "
"property&mdash;patents.  Edison formed the MPPC to exercise the rights this "
"creative property gave him, and the MPPC was serious about the control it "
"demanded."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:2839
msgid "As one commentator tells one part of the story,"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:2843
msgid ""
"A January 1909 deadline was set for all companies to comply with the "
"license. By February, unlicensed outlaws, who referred to themselves as "
"independents protested the trust and carried on business without submitting "
"to the Edison monopoly. In the summer of 1909 the independent movement was "
"in full-swing, with producers and theater owners using illegal equipment and "
"imported film stock to create their own underground market."
msgstr ""

#.  f2 
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:2863
msgid ""
"J. A. Aberdeen, <citetitle>Hollywood Renegades: The Society of Independent "
"Motion Picture Producers</citetitle> (Cobblestone Entertainment, 2000) and "
"expanded texts posted at \"The Edison Movie Monopoly: The Motion Picture "
"Patents Company vs. the Independent Outlaws,\" available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #11</ulink>. For a discussion of "
"the economic motive behind both these limits and the limits imposed by "
"Victor on phonographs, see Randal C. Picker, \"From Edison to the Broadcast "
"Flag: Mechanisms of Consent and Refusal and the Propertization of "
"Copyright\" (September 2002), University of Chicago Law School, James "
"M. Olin Program in Law and Economics, Working Paper No. 159."
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para><indexterm><primary>
#: freeculture.xml:2874
msgid "Fox, William"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para><indexterm><primary>
#: freeculture.xml:2875
msgid "General Film Company"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:2876 freeculture.xml:3128 freeculture.xml:4232 freeculture.xml:9570
msgid "Picker, Randal C."
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:2852
msgid ""
"With the country experiencing a tremendous expansion in the number of "
"nickelodeons, the Patents Company reacted to the independent movement by "
"forming a strong-arm subsidiary known as the General Film Company to block "
"the entry of non-licensed independents. With coercive tactics that have "
"become legendary, General Film confiscated unlicensed equipment, "
"discontinued product supply to theaters which showed unlicensed films, and "
"effectively monopolized distribution with the acquisition of all U.S. film "
"exchanges, except for the one owned by the independent William Fox who "
"defied the Trust even after his license was revoked.<placeholder "
"type=\"footnote\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> "
"<placeholder type=\"indexterm\" id=\"2\"/> <placeholder type=\"indexterm\" "
"id=\"3\"/>"
msgstr ""

#.  f3 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:2886
msgid ""
"Marc Wanamaker, \"The First Studios,\" <citetitle>The Silents "
"Majority</citetitle>, archived at <ulink "
"url=\"http://free-culture.cc/notes/\">link #12</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:2880
msgid ""
"The Napsters of those days, the \"independents,\" were companies like "
"Fox. And no less than today, these independents were vigorously resisted.  "
"\"Shooting was disrupted by machinery stolen, and `accidents' resulting in "
"loss of negatives, equipment, buildings and sometimes life and limb "
"frequently occurred.\"<placeholder type=\"footnote\" id=\"0\"/> That led the "
"independents to flee the East Coast. California was remote enough from "
"Edison's reach that filmmakers there could pirate his inventions without "
"fear of the law. And the leaders of Hollywood filmmaking, Fox most "
"prominently, did just that."
msgstr ""

#.  PAGE BREAK 68 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:2896
msgid ""
"Of course, California grew quickly, and the effective enforcement of federal "
"law eventually spread west. But because patents grant the patent holder a "
"truly \"limited\" monopoly (just seventeen years at that time), by the time "
"enough federal marshals appeared, the patents had expired. A new industry "
"had been born, in part from the piracy of Edison's creative property."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:2907
msgid "Recorded Music"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:2909
msgid ""
"The record industry was born of another kind of piracy, though to see how "
"requires a bit of detail about the way the law regulates music."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:2913
msgid "Fourneaux, Henri"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:2916
msgid ""
"At the time that Edison and Henri Fourneaux invented machines for "
"reproducing music (Edison the phonograph, Fourneaux the player piano), the "
"law gave composers the exclusive right to control copies of their music and "
"the exclusive right to control public performances of their music. In other "
"words, in 1900, if I wanted a copy of Phil Russel's 1899 hit \"Happy Mose,\" "
"the law said I would have to pay for the right to get a copy of the musical "
"score, and I would also have to pay for the right to perform it publicly."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:2925 freeculture.xml:3073
msgid "Beatles"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:2927
msgid ""
"But what if I wanted to record \"Happy Mose,\" using Edison's phonograph or "
"Fourneaux's player piano? Here the law stumbled. It was clear enough that I "
"would have to buy any copy of the musical score that I performed in making "
"this recording. And it was clear enough that I would have to pay for any "
"public performance of the work I was recording.  But it wasn't totally clear "
"that I would have to pay for a \"public performance\" if I recorded the song "
"in my own house (even today, you don't owe the Beatles anything if you sing "
"their songs in the shower), or if I recorded the song from memory (copies in "
"your brain are not&mdash;yet&mdash; regulated by copyright law). So if I "
"simply sang the song into a recording device in the privacy of my own home, "
"it wasn't clear that I owed the composer anything. And more importantly, it "
"wasn't clear whether I owed the composer anything if I then made copies of "
"those recordings.  Because of this gap in the law, then, I could effectively "
"pirate someone else's song without paying its composer anything."
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para><indexterm><primary>
#: freeculture.xml:2950 freeculture.xml:2967
msgid "Kittredge, Alfred"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:2946
msgid ""
"The composers (and publishers) were none too happy about this capacity to "
"pirate. As South Dakota senator Alfred Kittredge put it, <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:2961
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright: Hearings on S. 6330 "
"and H.R. 19853 Before the ( Joint) Committees on Patents, 59th Cong. 59, 1st "
"sess. (1906) (statement of Senator Alfred B. Kittredge, of South Dakota, "
"chairman), reprinted in <citetitle>Legislative History of the Copyright "
"Act</citetitle>, E. Fulton Brylawski and Abe Goldman, eds. (South "
"Hackensack, N.J.: Rothman Reprints, 1976).  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:2954
msgid ""
"Imagine the injustice of the thing. A composer writes a song or an opera. A "
"publisher buys at great expense the rights to the same and copyrights "
"it. Along come the phonographic companies and companies who cut music rolls "
"and deliberately steal the work of the brain of the composer and publisher "
"without any regard for [their] rights.<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#.  f5 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:2976
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright, 223 (statement of "
"Nathan Burkan, attorney for the Music Publishers Association)."
msgstr ""

#.  f6 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:2982
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright, 226 (statement of "
"Nathan Burkan, attorney for the Music Publishers Association)."
msgstr ""

#.  f7 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:2989
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of "
"John Philip Sousa, composer)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:2972
msgid ""
"The innovators who developed the technology to record other people's works "
"were \"sponging upon the toil, the work, the talent, and genius of American "
"composers,\"<placeholder type=\"footnote\" id=\"0\"/> and the \"music "
"publishing industry\" was thereby \"at the complete mercy of this one "
"pirate.\"<placeholder type=\"footnote\" id=\"1\"/> As John Philip Sousa put "
"it, in as direct a way as possible, \"When they make money out of my pieces, "
"I want a share of it.\"<placeholder type=\"footnote\" id=\"2\"/>"
msgstr ""

#.  f8 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3002
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright, 283&ndash;84 "
"(statement of Albert Walker, representative of the Auto-Music Perforating "
"Company of New York)."
msgstr ""

#.  f9 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3013
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared "
"memorandum of Philip Mauro, general patent counsel of the American "
"Graphophone Company Association)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:3017
msgid "American Graphophone Company"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:2994
msgid ""
"These arguments have familiar echoes in the wars of our day. So, too, do the "
"arguments on the other side. The innovators who developed the player piano "
"argued that \"it is perfectly demonstrable that the introduction of "
"automatic music players has not deprived any composer of anything he had "
"before their introduction.\" Rather, the machines increased the sales of "
"sheet music.<placeholder type=\"footnote\" id=\"0\"/> In any case, the "
"innovators argued, the job of Congress was \"to consider first the interest "
"of [the public], whom they represent, and whose servants they are.\" \"All "
"talk about `theft,'\" the general counsel of the American Graphophone "
"Company wrote, \"is the merest claptrap, for there exists no property in "
"ideas musical, literary or artistic, except as defined by "
"statute.\"<placeholder type=\"footnote\" id=\"1\"/> <placeholder "
"type=\"indexterm\" id=\"2\"/>"
msgstr ""

#.  PAGE BREAK 70 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3020
msgid ""
"The law soon resolved this battle in favor of the composer "
"<emphasis>and</emphasis> the recording artist. Congress amended the law to "
"make sure that composers would be paid for the \"mechanical reproductions\" "
"of their music. But rather than simply granting the composer complete "
"control over the right to make mechanical reproductions, Congress gave "
"recording artists a right to record the music, at a price set by Congress, "
"once the composer allowed it to be recorded once. This is the part of "
"copyright law that makes cover songs possible. Once a composer authorizes a "
"recording of his song, others are free to record the same song, so long as "
"they pay the original composer a fee set by the law."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3035
msgid ""
"American law ordinarily calls this a \"compulsory license,\" but I will "
"refer to it as a \"statutory license.\" A statutory license is a license "
"whose key terms are set by law. After Congress's amendment of the Copyright "
"Act in 1909, record companies were free to distribute copies of recordings "
"so long as they paid the composer (or copyright holder)  the fee set by the "
"statute."
msgstr ""

#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
#: freeculture.xml:3050 freeculture.xml:13872
msgid "Grisham, John"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3043
msgid ""
"This is an exception within the law of copyright. When John Grisham writes a "
"novel, a publisher is free to publish that novel only if Grisham gives the "
"publisher permission. Grisham, in turn, is free to charge whatever he wants "
"for that permission. The price to publish Grisham is thus set by Grisham, "
"and copyright law ordinarily says you have no permission to use Grisham's "
"work except with permission of Grisham.  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#.  f10 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3067
msgid ""
"Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and "
"H.R. 11794 Before the ( Joint) Committee on Patents, 60th Cong., 1st sess., "
"217 (1908) (statement of Senator Reed Smoot, chairman), reprinted in "
"<citetitle>Legislative History of the 1909 Copyright Act</citetitle>, "
"E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman "
"Reprints, 1976)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3053
msgid ""
"But the law governing recordings gives recording artists less. And thus, in "
"effect, the law <emphasis>subsidizes</emphasis> the recording industry "
"through a kind of piracy&mdash;by giving recording artists a weaker right "
"than it otherwise gives creative authors. The Beatles have less control over "
"their creative work than Grisham does. And the beneficiaries of this less "
"control are the recording industry and the public. The recording industry "
"gets something of value for less than it otherwise would pay; the public "
"gets access to a much wider range of musical creativity. Indeed, Congress "
"was quite explicit about its reasons for granting this right. Its fear was "
"the monopoly power of rights holders, and that that power would stifle "
"follow-on creativity.<placeholder type=\"footnote\" id=\"0\"/> <placeholder "
"type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3076
msgid ""
"While the recording industry has been quite coy about this recently, "
"historically it has been quite a supporter of the statutory license for "
"records. As a 1967 report from the House Committee on the Judiciary relates,"
msgstr ""

#.  f11 
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:3098
msgid ""
"Copyright Law Revision: Report to Accompany H.R. 2512, House Committee on "
"the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8 March "
"1967). I am grateful to Glenn Brown for drawing my attention to this report."
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:3083
msgid ""
"the record producers argued vigorously that the compulsory license system "
"must be retained. They asserted that the record industry is a "
"half-billion-dollar business of great economic importance in the United "
"States and throughout the world; records today are the principal means of "
"disseminating music, and this creates special problems, since performers "
"need unhampered access to musical material on nondiscriminatory "
"terms. Historically, the record producers pointed out, there were no "
"recording rights before 1909 and the 1909 statute adopted the compulsory "
"license as a deliberate anti-monopoly condition on the grant of these "
"rights. They argue that the result has been an outpouring of recorded music, "
"with the public being given lower prices, improved quality, and a greater "
"choice.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3105
msgid ""
"By limiting the rights musicians have, by partially pirating their creative "
"work, the record producers, and the public, benefit."
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:3110 freeculture.xml:4197
msgid "Radio"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3112
msgid "Radio was also born of piracy."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:3127
msgid "Hand, Learned"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3118
msgid ""
"See 17 <citetitle>United States Code</citetitle>, sections 106 and 110. At "
"the beginning, record companies printed \"Not Licensed for Radio Broadcast\" "
"and other messages purporting to restrict the ability to play a record on a "
"radio station.  Judge Learned Hand rejected the argument that a warning "
"attached to a record might restrict the rights of the radio station. See "
"<citetitle>RCA Manufacturing "
"Co</citetitle>. v. <citetitle>Whiteman</citetitle>, 114 F. 2d 86 (2nd "
"Cir. 1940). See also Randal C.  Picker, \"From Edison to the Broadcast Flag: "
"Mechanisms of Consent and Refusal and the Propertization of Copyright,\" "
"<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 281.  "
"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
"id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3115
msgid ""
"When a radio station plays a record on the air, that constitutes a \"public "
"performance\" of the composer's work.<placeholder type=\"footnote\" "
"id=\"0\"/> As I described above, the law gives the composer (or copyright "
"holder)  an exclusive right to public performances of his work. The radio "
"station thus owes the composer money for that performance."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:3145 freeculture.xml:8662 freeculture.xml:9119 freeculture.xml:12041
msgid "Lovett, Lyle"
msgstr ""

#.  PAGE BREAK 72 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3135
msgid ""
"But when the radio station plays a record, it is not only performing a copy "
"of the <emphasis>composer's</emphasis> work. The radio station is also "
"performing a copy of the <emphasis>recording artist's</emphasis> work. It's "
"one thing to have \"Happy Birthday\" sung on the radio by the local "
"children's choir; it's quite another to have it sung by the Rolling Stones "
"or Lyle Lovett. The recording artist is adding to the value of the "
"composition performed on the radio station.  And if the law were perfectly "
"consistent, the radio station would have to pay the recording artist for his "
"work, just as it pays the composer of the music for his work.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3150
msgid ""
"But it doesn't. Under the law governing radio performances, the radio "
"station does not have to pay the recording artist. The radio station need "
"only pay the composer. The radio station thus gets a bit of something for "
"nothing. It gets to perform the recording artist's work for free, even if it "
"must pay the composer something for the privilege of playing the song."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:3158 freeculture.xml:3659 freeculture.xml:6034
msgid "Madonna"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3161
msgid ""
"This difference can be huge. Imagine you compose a piece of music.  Imagine "
"it is your first. You own the exclusive right to authorize public "
"performances of that music. So if Madonna wants to sing your song in public, "
"she has to get your permission."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3167
msgid ""
"Imagine she does sing your song, and imagine she likes it a lot. She then "
"decides to make a recording of your song, and it becomes a top hit. Under "
"our law, every time a radio station plays your song, you get some money. But "
"Madonna gets nothing, save the indirect effect on the sale of her CDs. The "
"public performance of her recording is not a \"protected\" right. The radio "
"station thus gets to <emphasis>pirate</emphasis> the value of Madonna's work "
"without paying her anything."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3178
msgid ""
"No doubt, one might argue that, on balance, the recording artists "
"benefit. On average, the promotion they get is worth more than the "
"performance rights they give up. Maybe. But even if so, the law ordinarily "
"gives the creator the right to make this choice. By making the choice for "
"him or her, the law gives the radio station the right to take something for "
"nothing."
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:3187 freeculture.xml:4203
msgid "Cable TV"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3190
msgid "Cable TV was also born of a kind of piracy."
msgstr ""

#.  PAGE BREAK 73 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3193
msgid ""
"When cable entrepreneurs first started wiring communities with cable "
"television in 1948, most refused to pay broadcasters for the content that "
"they echoed to their customers. Even when the cable companies started "
"selling access to television broadcasts, they refused to pay for what they "
"sold. Cable companies were thus Napsterizing broadcasters' content, but more "
"egregiously than anything Napster ever did&mdash; Napster never charged for "
"the content it enabled others to give away."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:3203
msgid "Anello, Douglas"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:3204
msgid "Burdick, Quentin"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:3205 freeculture.xml:3216
msgid "Hyde, Rosel H."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3211
msgid ""
"Copyright Law Revision&mdash;CATV: Hearing on S. 1006 Before the "
"Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee "
"on the Judiciary, 89th Cong., 2nd sess., 78 (1966)  (statement of Rosel "
"H. Hyde, chairman of the Federal Communications Commission).  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#.  f14 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3223
msgid ""
"Copyright Law Revision&mdash;CATV, 116 (statement of Douglas A. Anello, "
"general counsel of the National Association of Broadcasters)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3207
msgid ""
"Broadcasters and copyright owners were quick to attack this theft.  Rosel "
"Hyde, chairman of the FCC, viewed the practice as a kind of \"unfair and "
"potentially destructive competition.\"<placeholder type=\"footnote\" "
"id=\"0\"/> There may have been a \"public interest\" in spreading the reach "
"of cable TV, but as Douglas Anello, general counsel to the National "
"Association of Broadcasters, asked Senator Quentin Burdick during testimony, "
"\"Does public interest dictate that you use somebody else's "
"property?\"<placeholder type=\"footnote\" id=\"1\"/> As another broadcaster "
"put it,"
msgstr ""

#.  f15 
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:3234
msgid ""
"Copyright Law Revision&mdash;CATV, 126 (statement of Ernest W. Jennes, "
"general counsel of the Association of Maximum Service Telecasters, Inc.)."
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:3230
msgid ""
"The extraordinary thing about the CATV business is that it is the only "
"business I know of where the product that is being sold is not paid "
"for.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3240
msgid "Again, the demand of the copyright holders seemed reasonable enough:"
msgstr ""

#.  f16 
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:3249
msgid ""
"Copyright Law Revision&mdash;CATV, 169 (joint statement of Arthur B.  Krim, "
"president of United Artists Corp., and John Sinn, president of United "
"Artists Television, Inc.)."
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:3244
msgid ""
"All we are asking for is a very simple thing, that people who now take our "
"property for nothing pay for it. We are trying to stop piracy and I don't "
"think there is any lesser word to describe it. I think there are harsher "
"words which would fit it.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:3255 freeculture.xml:3263
msgid "Heston, Charlton"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3261
msgid ""
"Copyright Law Revision&mdash;CATV, 209 (statement of Charlton Heston, "
"president of the Screen Actors Guild).  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3257
msgid ""
"These were \"free-ride[rs],\" Screen Actor's Guild president Charlton Heston "
"said, who were \"depriving actors of compensation.\"<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3268
msgid ""
"But again, there was another side to the debate. As Assistant Attorney "
"General Edwin Zimmerman put it,"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para><indexterm><primary>
#: freeculture.xml:3284 freeculture.xml:3286
msgid "Zimmerman, Edwin"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:3282
msgid ""
"Copyright Law Revision&mdash;CATV, 216 (statement of Edwin M.  Zimmerman, "
"acting assistant attorney general).  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:3273
msgid ""
"Our point here is that unlike the problem of whether you have any copyright "
"protection at all, the problem here is whether copyright holders who are "
"already compensated, who already have a monopoly, should be permitted to "
"extend that monopoly. &hellip; The question here is how much compensation "
"they should have and how far back they should carry their right to "
"compensation.<placeholder type=\"footnote\" id=\"0\"/> <placeholder "
"type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3290
msgid ""
"Copyright owners took the cable companies to court. Twice the Supreme Court "
"held that the cable companies owed the copyright owners nothing."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3294
msgid ""
"It took Congress almost thirty years before it resolved the question of "
"whether cable companies had to pay for the content they \"pirated.\" In the "
"end, Congress resolved this question in the same way that it resolved the "
"question about record players and player pianos. Yes, cable companies would "
"have to pay for the content that they broadcast; but the price they would "
"have to pay was not set by the copyright owner.  The price was set by law, "
"so that the broadcasters couldn't exercise veto power over the emerging "
"technologies of cable. Cable companies thus built their empire in part upon "
"a \"piracy\" of the value created by broadcasters' content."
msgstr ""

#.  f19 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3311
msgid ""
"See, for example, National Music Publisher's Association, <citetitle>The "
"Engine of Free Expression: Copyright on the Internet&mdash;The Myth of Free "
"Information</citetitle>, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #13</ulink>. \"The threat of "
"piracy&mdash;the use of someone else's creative work without permission or "
"compensation&mdash;has grown with the Internet.\""
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3306
msgid ""
"These separate stories sing a common theme. If \"piracy\" means using value "
"from someone else's creative property without permission from that "
"creator&mdash;as it is increasingly described today<placeholder "
"type=\"footnote\" id=\"0\"/> &mdash; then <emphasis>every</emphasis> "
"industry affected by copyright today is the product and beneficiary of a "
"certain kind of piracy. Film, records, radio, cable TV. &hellip; The list is "
"long and could well be expanded. Every generation welcomes the pirates from "
"the last. Every generation&mdash;until now."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:3328
msgid "CHAPTER FIVE: \"Piracy\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:3330
msgid ""
"There is piracy of copyrighted material. Lots of it. This piracy comes in "
"many forms. The most significant is commercial piracy, the unauthorized "
"taking of other people's content within a commercial context. Despite the "
"many justifications that are offered in its defense, this taking is "
"wrong. No one should condone it, and the law should stop it."
msgstr ""

#.  PAGE BREAK 76 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:3338
msgid ""
"But as well as copy-shop piracy, there is another kind of \"taking\" that is "
"more directly related to the Internet. That taking, too, seems wrong to "
"many, and it is wrong much of the time. Before we paint this taking "
"\"piracy,\" however, we should understand its nature a bit more.  For the "
"harm of this taking is significantly more ambiguous than outright copying, "
"and the law should account for that ambiguity, as it has so often done in "
"the past."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:3348
msgid "Piracy I"
msgstr ""

#.  f1 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3356
msgid ""
"See IFPI (International Federation of the Phonographic Industry), "
"<citetitle>The Recording Industry Commercial Piracy Report 2003</citetitle>, "
"July 2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#14</ulink>. See also Ben Hunt, \"Companies Warned on Music Piracy Risk,\" "
"<citetitle>Financial Times</citetitle>, 14 February 2003, 11."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3350
msgid ""
"All across the world, but especially in Asia and Eastern Europe, there are "
"businesses that do nothing but take others people's copyrighted content, "
"copy it, and sell it&mdash;all without the permission of a copyright "
"owner. The recording industry estimates that it loses about $4.6 billion "
"every year to physical piracy<placeholder type=\"footnote\" id=\"0\"/> (that "
"works out to one in three CDs sold worldwide). The MPAA estimates that it "
"loses $3 billion annually worldwide to piracy."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3366
msgid ""
"This is piracy plain and simple. Nothing in the argument of this book, nor "
"in the argument that most people make when talking about the subject of this "
"book, should draw into doubt this simple point: This piracy is wrong."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3372
msgid ""
"Which is not to say that excuses and justifications couldn't be made for "
"it. We could, for example, remind ourselves that for the first one hundred "
"years of the American Republic, America did not honor foreign copyrights. We "
"were born, in this sense, a pirate nation. It might therefore seem "
"hypocritical for us to insist so strongly that other developing nations "
"treat as wrong what we, for the first hundred years of our existence, "
"treated as right."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3381
msgid ""
"That excuse isn't terribly strong. Technically, our law did not ban the "
"taking of foreign works. It explicitly limited itself to American "
"works. Thus the American publishers who published foreign works without the "
"permission of foreign authors were not violating any rule.  The copy shops "
"in Asia, by contrast, are violating Asian law. Asian law does protect "
"foreign copyrights, and the actions of the copy shops violate that law. So "
"the wrong of piracy that they engage in is not just a moral wrong, but a "
"legal wrong, and not just an internationally legal wrong, but a locally "
"legal wrong as well."
msgstr ""

#.  PAGE BREAK 77 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3392
msgid ""
"True, these local rules have, in effect, been imposed upon these "
"countries. No country can be part of the world economy and choose not to "
"protect copyright internationally. We may have been born a pirate nation, "
"but we will not allow any other nation to have a similar childhood."
msgstr ""

#. type: Content of: <book><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:3419 freeculture.xml:12321 freeculture.xml:12754 freeculture.xml:12761
msgid "Drahos, Peter"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3405
msgid ""
"See Peter Drahos with John Braithwaite, Information Feudalism: "
"<citetitle>Who Owns the Knowledge Economy?</citetitle> (New York: The New "
"Press, 2003), 10&ndash;13, 209.  The Trade-Related Aspects of Intellectual "
"Property Rights (TRIPS) agreement obligates member nations to create "
"administrative and enforcement mechanisms for intellectual property rights, "
"a costly proposition for developing countries. Additionally, patent rights "
"may lead to higher prices for staple industries such as agriculture. Critics "
"of TRIPS question the disparity between burdens imposed upon developing "
"countries and benefits conferred to industrialized nations. TRIPS does "
"permit governments to use patents for public, noncommercial uses without "
"first obtaining the patent holder's permission. Developing nations may be "
"able to use this to gain the benefits of foreign patents at lower "
"prices. This is a promising strategy for developing nations within the TRIPS "
"framework.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3400
msgid ""
"If a country is to be treated as a sovereign, however, then its laws are its "
"laws regardless of their source. The international law under which these "
"nations live gives them some opportunities to escape the burden of "
"intellectual property law.<placeholder type=\"footnote\" id=\"0\"/> In my "
"view, more developing nations should take advantage of that opportunity, but "
"when they don't, then their laws should be respected. And under the laws of "
"these nations, this piracy is wrong."
msgstr ""

#. type: Content of: <book><chapter><section><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:3439 freeculture.xml:3706 freeculture.xml:14403
msgid "Liebowitz, Stan"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3432
msgid ""
"For an analysis of the economic impact of copying technology, see Stan "
"Liebowitz, <citetitle>Rethinking the Network Economy</citetitle> (New York: "
"Amacom, 2002), 144&ndash;90. \"In some instances &hellip; the impact of "
"piracy on the copyright holder's ability to appropriate the value of the "
"work will be negligible. One obvious instance is the case where the "
"individual engaging in pirating would not have purchased an original even if "
"pirating were not an option.\" Ibid., 149.  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3426
msgid ""
"Alternatively, we could try to excuse this piracy by noting that in any "
"case, it does no harm to the industry. The Chinese who get access to "
"American CDs at 50 cents a copy are not people who would have bought those "
"American CDs at $15 a copy. So no one really has any less money than they "
"otherwise would have had.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3443
msgid ""
"This is often true (though I have friends who have purchased many thousands "
"of pirated DVDs who certainly have enough money to pay for the content they "
"have taken), and it does mitigate to some degree the harm caused by such "
"taking. Extremists in this debate love to say, \"You wouldn't go into Barnes "
"&amp; Noble and take a book off of the shelf without paying; why should it "
"be any different with on-line music?\" The difference is, of course, that "
"when you take a book from Barnes &amp; Noble, it has one less book to "
"sell. By contrast, when you take an MP3 from a computer network, there is "
"not one less CD that can be sold.  The physics of piracy of the intangible "
"are different from the physics of piracy of the tangible."
msgstr ""

#.  PAGE BREAK 78 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3456
msgid ""
"This argument is still very weak. However, although copyright is a property "
"right of a very special sort, it <emphasis>is</emphasis> a property "
"right. Like all property rights, the copyright gives the owner the right to "
"decide the terms under which content is shared. If the copyright owner "
"doesn't want to sell, she doesn't have to. There are exceptions: important "
"statutory licenses that apply to copyrighted content regardless of the wish "
"of the copyright owner. Those licenses give people the right to \"take\" "
"copyrighted content whether or not the copyright owner wants to sell. But "
"where the law does not give people the right to take content, it is wrong to "
"take that content even if the wrong does no harm. If we have a property "
"system, and that system is properly balanced to the technology of a time, "
"then it is wrong to take property without the permission of a property "
"owner. That is exactly what \"property\" means."
msgstr ""

#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
#: freeculture.xml:3485 freeculture.xml:3513 freeculture.xml:11169 freeculture.xml:12635 freeculture.xml:13187
msgid "GNU/Linux operating system"
msgstr ""

#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
#: freeculture.xml:3486 freeculture.xml:3516 freeculture.xml:11171 freeculture.xml:12636 freeculture.xml:13188
msgid "Linux operating system"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:3488
msgid "Microsoft"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><secondary>
#: freeculture.xml:3489
msgid "Windows operating system of"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:3491
msgid "Windows"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3474
msgid ""
"Finally, we could try to excuse this piracy with the argument that the "
"piracy actually helps the copyright owner. When the Chinese \"steal\" "
"Windows, that makes the Chinese dependent on Microsoft.  Microsoft loses the "
"value of the software that was taken. But it gains users who are used to "
"life in the Microsoft world. Over time, as the nation grows more wealthy, "
"more and more people will buy software rather than steal it. And hence over "
"time, because that buying will benefit Microsoft, Microsoft benefits from "
"the piracy. If instead of pirating Microsoft Windows, the Chinese used the "
"free GNU/Linux operating system, then these Chinese users would not "
"eventually be buying Microsoft.  Without piracy, then, Microsoft would "
"lose.  <placeholder type=\"indexterm\" id=\"0\"/> <placeholder "
"type=\"indexterm\" id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> "
"<placeholder type=\"indexterm\" id=\"3\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3494
msgid ""
"This argument, too, is somewhat true. The addiction strategy is a good "
"one. Many businesses practice it. Some thrive because of it. Law students, "
"for example, are given free access to the two largest legal databases. The "
"companies marketing both hope the students will become so used to their "
"service that they will want to use it and not the other when they become "
"lawyers (and must pay high subscription fees)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:3514
msgid "Internet Explorer"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:3515
msgid "Netscape"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3502
msgid ""
"Still, the argument is not terribly persuasive. We don't give the alcoholic "
"a defense when he steals his first beer, merely because that will make it "
"more likely that he will buy the next three. Instead, we ordinarily allow "
"businesses to decide for themselves when it is best to give their product "
"away. If Microsoft fears the competition of GNU/Linux, then Microsoft can "
"give its product away, as it did, for example, with Internet Explorer to "
"fight Netscape. A property right means giving the property owner the right "
"to say who gets access to what&mdash;at least ordinarily. And if the law "
"properly balances the rights of the copyright owner with the rights of "
"access, then violating the law is still wrong.  <placeholder "
"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> "
"<placeholder type=\"indexterm\" id=\"2\"/> <placeholder type=\"indexterm\" "
"id=\"3\"/>"
msgstr ""

#.  PAGE BREAK 79 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3520
msgid ""
"Thus, while I understand the pull of these justifications for piracy, and I "
"certainly see the motivation, in my view, in the end, these efforts at "
"justifying commercial piracy simply don't cut it. This kind of piracy is "
"rampant and just plain wrong. It doesn't transform the content it steals; it "
"doesn't transform the market it competes in. It merely gives someone access "
"to something that the law says he should not have.  Nothing has changed to "
"draw that law into doubt. This form of piracy is flat out wrong."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3530
msgid ""
"But as the examples from the four chapters that introduced this part "
"suggest, even if some piracy is plainly wrong, not all \"piracy\" is. Or at "
"least, not all \"piracy\" is wrong if that term is understood in the way it "
"is increasingly used today. Many kinds of \"piracy\" are useful and "
"productive, to produce either new content or new ways of doing business.  "
"Neither our tradition nor any tradition has ever banned all \"piracy\" in "
"that sense of the term."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3539
msgid ""
"This doesn't mean that there are no questions raised by the latest piracy "
"concern, peer-to-peer file sharing. But it does mean that we need to "
"understand the harm in peer-to-peer sharing a bit more before we condemn it "
"to the gallows with the charge of piracy."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3545
msgid ""
"For (1) like the original Hollywood, p2p sharing escapes an overly "
"controlling industry; and (2) like the original recording industry, it "
"simply exploits a new way to distribute content; but (3) unlike cable TV, no "
"one is selling the content that is shared on p2p services."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3551
msgid ""
"These differences distinguish p2p sharing from true piracy. They should push "
"us to find a way to protect artists while enabling this sharing to survive."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:3557
msgid "Piracy II"
msgstr ""

#.  f4 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3562
msgid ""
"<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 "
"Eng. Rep. 1274 (1777)."
msgstr ""

#.  PAGE BREAK 80 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3559
msgid ""
"The key to the \"piracy\" that the law aims to quash is a use that \"rob[s] "
"the author of [his] profit.\"<placeholder type=\"footnote\" id=\"0\"/> This "
"means we must determine whether and how much p2p sharing harms before we "
"know how strongly the law should seek to either prevent it or find an "
"alternative to assure the author of his profit."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:3585 freeculture.xml:8093
msgid "Christensen, Clayton M."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3576
msgid ""
"See Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The "
"Revolutionary National Bestseller That Changed the Way We Do "
"Business</citetitle> (New York: HarperBusiness, 2000). Professor Christensen "
"examines why companies that give rise to and dominate a product area are "
"frequently unable to come up with the most creative, paradigm-shifting uses "
"for their own products.  This job usually falls to outside innovators, who "
"reassemble existing technology in inventive ways. For a discussion of "
"Christensen's ideas, see Lawrence Lessig, <citetitle>Future</citetitle>, "
"89&ndash;92, 139.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:3588
msgid "Fanning, Shawn"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3571
msgid ""
"Peer-to-peer sharing was made famous by Napster. But the inventors of the "
"Napster technology had not made any major technological innovations.  Like "
"every great advance in innovation on the Internet (and, arguably, off the "
"Internet as well<placeholder type=\"footnote\" id=\"0\"/>), Shawn Fanning "
"and crew had simply put together components that had been developed "
"independently.  <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#.  f6 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3596
msgid ""
"See Carolyn Lochhead, \"Silicon Valley Dream, Hollywood Nightmare,\" "
"<citetitle>San Francisco Chronicle</citetitle>, 24 September 2002, A1; "
"\"Rock 'n' Roll Suicide,\" <citetitle>New Scientist</citetitle>, 6 July "
"2002, 42; Benny Evangelista, \"Napster Names CEO, Secures New Financing,\" "
"<citetitle>San Francisco Chronicle</citetitle>, 23 May 2003, C1; \"Napster's "
"Wake-Up Call,\" <citetitle>Economist</citetitle>, 24 June 2000, 23; John "
"Naughton, \"Hollywood at War with the Internet\" (London) "
"<citetitle>Times</citetitle>, 26 July 2002, 18."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3591
msgid ""
"The result was spontaneous combustion. Launched in July 1999, Napster "
"amassed over 10 million users within nine months. After eighteen months, "
"there were close to 80 million registered users of the system.<placeholder "
"type=\"footnote\" id=\"0\"/> Courts quickly shut Napster down, but other "
"services emerged to take its place. (Kazaa is currently the most popular p2p "
"service. It boasts over 100 million members.) These services' systems are "
"different architecturally, though not very different in function: Each "
"enables users to make content available to any number of other users. With a "
"p2p system, you can share your favorite songs with your best friend&mdash; "
"or your 20,000 best friends."
msgstr ""

#.  f7 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3618
msgid ""
"See Ipsos-Insight, <citetitle>TEMPO: Keeping Pace with Online Music "
"Distribution</citetitle> (September 2002), reporting that 28 percent of "
"Americans aged twelve and older have downloaded music off of the Internet "
"and 30 percent have listened to digital music files stored on their "
"computers."
msgstr ""

#.  f8 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3627
msgid ""
"Amy Harmon, \"Industry Offers a Carrot in Online Music Fight,\" "
"<citetitle>New York Times</citetitle>, 6 June 2003, A1."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3612
msgid ""
"According to a number of estimates, a huge proportion of Americans have "
"tasted file-sharing technology. A study by Ipsos-Insight in September 2002 "
"estimated that 60 million Americans had downloaded music&mdash;28 percent of "
"Americans older than 12.<placeholder type=\"footnote\" id=\"0\"/> A survey "
"by the NPD group quoted in <citetitle>The New York Times</citetitle> "
"estimated that 43 million citizens used file-sharing networks to exchange "
"content in May 2003.<placeholder type=\"footnote\" id=\"1\"/> The vast "
"majority of these are not kids. Whatever the actual figure, a massive "
"quantity of content is being \"taken\" on these networks. The ease and "
"inexpensiveness of file-sharing networks have inspired millions to enjoy "
"music in a way that they hadn't before."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3636
msgid ""
"Some of this enjoying involves copyright infringement. Some of it does "
"not. And even among the part that is technically copyright infringement, "
"calculating the actual harm to copyright owners is more complicated than one "
"might think. So consider&mdash;a bit more carefully than the polarized "
"voices around this debate usually do&mdash;the kinds of sharing that file "
"sharing enables, and the kinds of harm it entails."
msgstr ""

#.  PAGE BREAK 81 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3646
msgid ""
"File sharers share different kinds of content. We can divide these different "
"kinds into four types."
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:3652
msgid ""
"There are some who use sharing networks as substitutes for purchasing "
"content. Thus, when a new Madonna CD is released, rather than buying the CD, "
"these users simply take it. We might quibble about whether everyone who "
"takes it would actually have bought it if sharing didn't make it available "
"for free. Most probably wouldn't have, but clearly there are some who "
"would.  The latter are the target of category A: users who download instead "
"of purchasing.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#.  B. 
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:3663
msgid ""
"There are some who use sharing networks to sample music before purchasing "
"it. Thus, a friend sends another friend an MP3 of an artist he's not heard "
"of. The other friend then buys CDs by that artist. This is a kind of "
"targeted advertising, quite likely to succeed.  If the friend recommending "
"the album gains nothing from a bad recommendation, then one could expect "
"that the recommendations will actually be quite good. The net effect of this "
"sharing could increase the quantity of music purchased."
msgstr ""

#.  C. 
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:3674
msgid ""
"There are many who use sharing networks to get access to copyrighted content "
"that is no longer sold or that they would not have purchased because the "
"transaction costs off the Net are too high. This use of sharing networks is "
"among the most rewarding for many. Songs that were part of your childhood "
"but have long vanished from the marketplace magically appear again on the "
"network. (One friend told me that when she discovered Napster, she spent a "
"solid weekend \"recalling\" old songs. She was astonished at the range and "
"mix of content that was available.)  For content not sold, this is still "
"technically a violation of copyright, though because the copyright owner is "
"not selling the content anymore, the economic harm is zero&mdash;the same "
"harm that occurs when I sell my collection of 1960s 45-rpm records to a "
"local collector."
msgstr ""

#.  PAGE BREAK 82 
#.  D. 
#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:3691
msgid ""
"Finally, there are many who use sharing networks to get access to content "
"that is not copyrighted or that the copyright owner wants to give away."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3697
msgid "How do these different types of sharing balance out?"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3705
msgid ""
"See Liebowitz, <citetitle>Rethinking the Network Economy</citetitle>, "
"148&ndash;49.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3700
msgid ""
"Let's start with some simple but important points. From the perspective of "
"the law, only type D sharing is clearly legal. From the perspective of "
"economics, only type A sharing is clearly harmful.<placeholder "
"type=\"footnote\" id=\"0\"/> Type B sharing is illegal but plainly "
"beneficial. Type C sharing is illegal, yet good for society (since more "
"exposure to music is good)  and harmless to the artist (since the work is "
"not otherwise available). So how sharing matters on balance is a hard "
"question to answer&mdash;and certainly much more difficult than the current "
"rhetoric around the issue suggests."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3716
msgid ""
"Whether on balance sharing is harmful depends importantly on how harmful "
"type A sharing is. Just as Edison complained about Hollywood, composers "
"complained about piano rolls, recording artists complained about radio, and "
"broadcasters complained about cable TV, the music industry complains that "
"type A sharing is a kind of \"theft\" that is \"devastating\" the industry."
msgstr ""

#.  f10 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3731
msgid ""
"See Cap Gemini Ernst &amp; Young, <citetitle>Technology Evolution and the "
"Music Industry's Business Model Crisis</citetitle> (2003), 3. This report "
"describes the music industry's effort to stigmatize the budding practice of "
"cassette taping in the 1970s, including an advertising campaign featuring a "
"cassette-shape skull and the caption \"Home taping is killing music.\" At "
"the time digital audio tape became a threat, the Office of Technical "
"Assessment conducted a survey of consumer behavior. In 1988, 40 percent of "
"consumers older than ten had taped music to a cassette format. U.S.  "
"Congress, Office of Technology Assessment, <citetitle>Copyright and Home "
"Copying: Technology Challenges the Law</citetitle>, OTA-CIT-422 (Washington, "
"D.C.: U.S.  Government Printing Office, October 1989), 145&ndash;56."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3724
msgid ""
"While the numbers do suggest that sharing is harmful, how harmful is harder "
"to reckon. It has long been the recording industry's practice to blame "
"technology for any drop in sales. The history of cassette recording is a "
"good example. As a study by Cap Gemini Ernst &amp; Young put it, \"Rather "
"than exploiting this new, popular technology, the labels fought "
"it.\"<placeholder type=\"footnote\" id=\"0\"/> The labels claimed that every "
"album taped was an album unsold, and when record sales fell by 11.4 percent "
"in 1981, the industry claimed that its point was proved. Technology was the "
"problem, and banning or regulating technology was the answer."
msgstr ""

#.  f11 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3757
msgid "U.S. Congress, <citetitle>Copyright and Home Copying</citetitle>, 4."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3749
msgid ""
"Yet soon thereafter, and before Congress was given an opportunity to enact "
"regulation, MTV was launched, and the industry had a record turnaround. \"In "
"the end,\" Cap Gemini concludes, \"the `crisis' &hellip; was not the fault "
"of the tapers&mdash;who did not [stop after MTV came into being]&mdash;but "
"had to a large extent resulted from stagnation in musical innovation at the "
"major labels.\"<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3761
msgid ""
"But just because the industry was wrong before does not mean it is wrong "
"today. To evaluate the real threat that p2p sharing presents to the industry "
"in particular, and society in general&mdash;or at least the society that "
"inherits the tradition that gave us the film industry, the record industry, "
"the radio industry, cable TV, and the VCR&mdash;the question is not simply "
"whether type A sharing is harmful. The question is also "
"<emphasis>how</emphasis> harmful type A sharing is, and how beneficial the "
"other types of sharing are."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3771
msgid ""
"We start to answer this question by focusing on the net harm, from the "
"standpoint of the industry as a whole, that sharing networks cause.  The "
"\"net harm\" to the industry as a whole is the amount by which type A "
"sharing exceeds type B. If the record companies sold more records through "
"sampling than they lost through substitution, then sharing networks would "
"actually benefit music companies on balance. They would therefore have "
"little <emphasis>static</emphasis> reason to resist them."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3782
msgid ""
"Could that be true? Could the industry as a whole be gaining because of file "
"sharing? Odd as that might sound, the data about CD sales actually suggest "
"it might be close."
msgstr ""

#.  f12 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3791
msgid ""
"See Recording Industry Association of America, <citetitle>2002 Yearend "
"Statistics</citetitle>, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #15</ulink>. A later report "
"indicates even greater losses. See Recording Industry Association of "
"America, <citetitle>Some Facts About Music Piracy</citetitle>, 25 June 2003, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #16</ulink>: "
"\"In the past four years, unit shipments of recorded music have fallen by 26 "
"percent from 1.16 billion units in to 860 million units in 2002 in the "
"United States (based on units shipped).  In terms of sales, revenues are "
"down 14 percent, from $14.6 billion in to $12.6 billion last year (based on "
"U.S. dollar value of shipments). The music industry worldwide has gone from "
"a $39 billion industry in 2000 down to a $32 billion industry in 2002 (based "
"on U.S. dollar value of shipments).\""
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:3818
msgid "Black, Jane"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3815
msgid ""
"Jane Black, \"Big Music's Broken Record,\" BusinessWeek online, 13 February "
"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#17</ulink>.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3787
msgid ""
"In 2002, the RIAA reported that CD sales had fallen by 8.9 percent, from 882 "
"million to 803 million units; revenues fell 6.7 percent.<placeholder "
"type=\"footnote\" id=\"0\"/> This confirms a trend over the past few "
"years. The RIAA blames Internet piracy for the trend, though there are many "
"other causes that could account for this drop. SoundScan, for example, "
"reports a more than 20 percent drop in the number of CDs released since "
"1999. That no doubt accounts for some of the decrease in sales. Rising "
"prices could account for at least some of the loss. \"From 1999 to 2001, the "
"average price of a CD rose 7.2 percent, from $13.04 to $14.19.\"<placeholder "
"type=\"footnote\" id=\"1\"/> Competition from other forms of media could "
"also account for some of the decline. As Jane Black of "
"<citetitle>BusinessWeek</citetitle> notes, \"The soundtrack to the film "
"<citetitle>High Fidelity</citetitle> has a list price of $18.98. You could "
"get the whole movie [on DVD] for $19.99.\"<placeholder type=\"footnote\" "
"id=\"2\"/>"
msgstr ""

#.  PAGE BREAK 84 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3833
msgid ""
"But let's assume the RIAA is right, and all of the decline in CD sales is "
"because of Internet sharing. Here's the rub: In the same period that the "
"RIAA estimates that 803 million CDs were sold, the RIAA estimates that 2.1 "
"billion CDs were downloaded for free. Thus, although 2.6 times the total "
"number of CDs sold were downloaded for free, sales revenue fell by just 6.7 "
"percent."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3841
msgid ""
"There are too many different things happening at the same time to explain "
"these numbers definitively, but one conclusion is unavoidable: The recording "
"industry constantly asks, \"What's the difference between downloading a song "
"and stealing a CD?\"&mdash;but their own numbers reveal the difference. If I "
"steal a CD, then there is one less CD to sell. Every taking is a lost "
"sale. But on the basis of the numbers the RIAA provides, it is absolutely "
"clear that the same is not true of downloads. If every download were a lost "
"sale&mdash;if every use of Kazaa \"rob[bed] the author of [his] "
"profit\"&mdash;then the industry would have suffered a 100 percent drop in "
"sales last year, not a 7 percent drop. If 2.6 times the number of CDs sold "
"were downloaded for free, and yet sales revenue dropped by just 6.7 percent, "
"then there is a huge difference between \"downloading a song and stealing a "
"CD.\""
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3856
msgid ""
"These are the harms&mdash;alleged and perhaps exaggerated but, let's assume, "
"real. What of the benefits? File sharing may impose costs on the recording "
"industry. What value does it produce in addition to these costs?"
msgstr ""

#.  f15 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3868
msgid ""
"By one estimate, 75 percent of the music released by the major labels is no "
"longer in print. See Online Entertainment and Copyright Law&mdash;Coming "
"Soon to a Digital Device Near You: Hearing Before the Senate Committee on "
"the Judiciary, 107th Cong., 1st sess. (3 April 2001) (prepared statement of "
"the Future of Music Coalition), available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #18</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3862
msgid ""
"One benefit is type C sharing&mdash;making available content that is "
"technically still under copyright but is no longer commercially available.  "
"This is not a small category of content. There are millions of tracks that "
"are no longer commercially available.<placeholder type=\"footnote\" "
"id=\"0\"/> And while it's conceivable that some of this content is not "
"available because the artist producing the content doesn't want it to be "
"made available, the vast majority of it is unavailable solely because the "
"publisher or the distributor has decided it no longer makes economic sense "
"<emphasis>to the company</emphasis> to make it available."
msgstr ""

#.  f16 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3888
msgid ""
"While there are not good estimates of the number of used record stores in "
"existence, in 2002, there were 7,198 used book dealers in the United States, "
"an increase of 20 percent since 1993. See Book Hunter Press, <citetitle>The "
"Quiet Revolution: The Expansion of the Used Book Market</citetitle> (2002), "
"available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#19</ulink>. Used records accounted for $260 million in sales in 2002. See "
"National Association of Recording Merchandisers, \"2002 Annual Survey "
"Results,\" available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#20</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3882
msgid ""
"In real space&mdash;long before the Internet&mdash;the market had a simple "
"response to this problem: used book and record stores. There are thousands "
"of used book and used record stores in America today.<placeholder "
"type=\"footnote\" id=\"0\"/> These stores buy content from owners, then sell "
"the content they buy. And under American copyright law, when they buy and "
"sell this content, <emphasis>even if the content is still under "
"copyright</emphasis>, the copyright owner doesn't get a dime. Used book and "
"record stores are commercial entities; their owners make money from the "
"content they sell; but as with cable companies before statutory licensing, "
"they don't have to pay the copyright owner for the content they sell."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:3908
msgid "Bernstein, Leonard"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3910
msgid ""
"Type C sharing, then, is very much like used book stores or used record "
"stores. It is different, of course, because the person making the content "
"available isn't making money from making the content available.  It is also "
"different, of course, because in real space, when I sell a record, I don't "
"have it anymore, while in cyberspace, when someone shares my 1949 recording "
"of Bernstein's \"Two Love Songs,\" I still have it. That difference would "
"matter economically if the owner of the copyright were selling the record in "
"competition to my sharing. But we're talking about the class of content that "
"is not currently commercially available. The Internet is making it "
"available, through cooperative sharing, without competing with the market."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3923
msgid ""
"It may well be, all things considered, that it would be better if the "
"copyright owner got something from this trade. But just because it may well "
"be better, it doesn't follow that it would be good to ban used book "
"stores. Or put differently, if you think that type C sharing should be "
"stopped, do you think that libraries and used book stores should be shut as "
"well?"
msgstr ""

#.  PAGE BREAK 86 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3931
msgid ""
"Finally, and perhaps most importantly, file-sharing networks enable type D "
"sharing to occur&mdash;the sharing of content that copyright owners want to "
"have shared or for which there is no continuing copyright. This sharing "
"clearly benefits authors and society. Science fiction author Cory Doctorow, "
"for example, released his first novel, <citetitle>Down and Out in the Magic "
"Kingdom</citetitle>, both free on-line and in bookstores on the same "
"day. His (and his publisher's) thinking was that the on-line distribution "
"would be a great advertisement for the \"real\" book. People would read part "
"on-line, and then decide whether they liked the book or not. If they liked "
"it, they would be more likely to buy it. Doctorow's content is type D "
"content. If sharing networks enable his work to be spread, then both he and "
"society are better off. (Actually, much better off: It is a great book!)"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3948
msgid ""
"Likewise for work in the public domain: This sharing benefits society with "
"no legal harm to authors at all. If efforts to solve the problem of type A "
"sharing destroy the opportunity for type D sharing, then we lose something "
"important in order to protect type A content."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3954
msgid ""
"The point throughout is this: While the recording industry understandably "
"says, \"This is how much we've lost,\" we must also ask, \"How much has "
"society gained from p2p sharing? What are the efficiencies? What is the "
"content that otherwise would be unavailable?\""
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3961
msgid ""
"For unlike the piracy I described in the first section of this chapter, much "
"of the \"piracy\" that file sharing enables is plainly legal and good.  And "
"like the piracy I described in chapter <xref xrefstyle=\"select: "
"labelnumber\" linkend=\"pirates\"/>, much of this piracy is motivated by a "
"new way of spreading content caused by changes in the technology of "
"distribution. Thus, consistent with the tradition that gave us Hollywood, "
"radio, the recording industry, and cable TV, the question we should be "
"asking about file sharing is how best to preserve its benefits while "
"minimizing (to the extent possible) the wrongful harm it causes artists. The "
"question is one of balance. The law should seek that balance, and that "
"balance will be found only with time."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3975
msgid ""
"\"But isn't the war just a war against illegal sharing? Isn't the target "
"just what you call type A sharing?\""
msgstr ""

#.  f17 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3992
msgid ""
"See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34- 35 "
"(N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183 MHP, available at "
"<ulink url=\"http://free-culture.cc/notes/\">link #21</ulink>. For an "
"account of the litigation and its toll on Napster, see Joseph Menn, "
"<citetitle>All the Rave: The Rise and Fall of Shawn Fanning's "
"Napster</citetitle> (New York: Crown Business, 2003), 269&ndash;82."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3979
msgid ""
"You would think. And we should hope. But so far, it is not. The effect of "
"the war purportedly on type A sharing alone has been felt far beyond that "
"one class of sharing. That much is obvious from the Napster case "
"itself. When Napster told the district court that it had developed a "
"technology to block the transfer of 99.4 percent of identified infringing "
"material, the district court told counsel for Napster 99.4 percent was not "
"good enough. Napster had to push the infringements \"down to "
"zero.\"<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4003
msgid ""
"If 99.4 percent is not good enough, then this is a war on file-sharing "
"technologies, not a war on copyright infringement. There is no way to assure "
"that a p2p system is used 100 percent of the time in compliance with the "
"law, any more than there is a way to assure that 100 percent of VCRs or 100 "
"percent of Xerox machines or 100 percent of handguns are used in compliance "
"with the law. Zero tolerance means zero p2p.  The court's ruling means that "
"we as a society must lose the benefits of p2p, even for the totally legal "
"and beneficial uses they serve, simply to assure that there are zero "
"copyright infringements caused by p2p."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4014
msgid ""
"Zero tolerance has not been our history. It has not produced the content "
"industry that we know today. The history of American law has been a process "
"of balance. As new technologies changed the way content was distributed, the "
"law adjusted, after some time, to the new technology.  In this adjustment, "
"the law sought to ensure the legitimate rights of creators while protecting "
"innovation. Sometimes this has meant more rights for creators. Sometimes "
"less."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4023
msgid ""
"So, as we've seen, when \"mechanical reproduction\" threatened the interests "
"of composers, Congress balanced the rights of composers against the "
"interests of the recording industry. It granted rights to composers, but "
"also to the recording artists: Composers were to be paid, but at a price set "
"by Congress. But when radio started broadcasting the recordings made by "
"these recording artists, and they complained to Congress that their "
"\"creative property\" was not being respected (since the radio station did "
"not have to pay them for the creativity it broadcast), Congress rejected "
"their claim. An indirect benefit was enough."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4035
msgid ""
"Cable TV followed the pattern of record albums. When the courts rejected the "
"claim that cable broadcasters had to pay for the content they rebroadcast, "
"Congress responded by giving broadcasters a right to compensation, but at a "
"level set by the law. It likewise gave cable companies the right to the "
"content, so long as they paid the statutory price."
msgstr ""

#.  PAGE BREAK 88 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4045
msgid ""
"This compromise, like the compromise affecting records and player pianos, "
"served two important goals&mdash;indeed, the two central goals of any "
"copyright legislation. First, the law assured that new innovators would have "
"the freedom to develop new ways to deliver content.  Second, the law assured "
"that copyright holders would be paid for the content that was "
"distributed. One fear was that if Congress simply required cable TV to pay "
"copyright holders whatever they demanded for their content, then copyright "
"holders associated with broadcasters would use their power to stifle this "
"new technology, cable. But if Congress had permitted cable to use "
"broadcasters' content for free, then it would have unfairly subsidized "
"cable. Thus Congress chose a path that would assure "
"<emphasis>compensation</emphasis> without giving the past (broadcasters) "
"control over the future (cable)."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:4060
msgid "Betamax"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4062
msgid ""
"In the same year that Congress struck this balance, two major producers and "
"distributors of film content filed a lawsuit against another technology, the "
"video tape recorder (VTR, or as we refer to them today, VCRs) that Sony had "
"produced, the Betamax. Disney's and Universal's claim against Sony was "
"relatively simple: Sony produced a device, Disney and Universal claimed, "
"that enabled consumers to engage in copyright infringement. Because the "
"device that Sony built had a \"record\" button, the device could be used to "
"record copyrighted movies and shows. Sony was therefore benefiting from the "
"copyright infringement of its customers. It should therefore, Disney and "
"Universal claimed, be partially liable for that infringement."
msgstr ""

#.  PAGE BREAK 89 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4075
msgid ""
"There was something to Disney's and Universal's claim. Sony did decide to "
"design its machine to make it very simple to record television shows. It "
"could have built the machine to block or inhibit any direct copying from a "
"television broadcast. Or possibly, it could have built the machine to copy "
"only if there were a special \"copy me\" signal on the line. It was clear "
"that there were many television shows that did not grant anyone permission "
"to copy. Indeed, if anyone had asked, no doubt the majority of shows would "
"not have authorized copying. And in the face of this obvious preference, "
"Sony could have designed its system to minimize the opportunity for "
"copyright infringement. It did not, and for that, Disney and Universal "
"wanted to hold it responsible for the architecture it chose."
msgstr ""

#.  f18 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4097
msgid ""
"Copyright Infringements (Audio and Video Recorders): Hearing on S. 1758 "
"Before the Senate Committee on the Judiciary, 97th Cong., 1st and 2nd sess., "
"459 (1982) (testimony of Jack Valenti, president, Motion Picture Association "
"of America, Inc.)."
msgstr ""

#.  f19 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4109
msgid "Copyright Infringements (Audio and Video Recorders), 475."
msgstr ""

#.  f20 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4114
msgid ""
"<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony "
"Corp. of America</citetitle>, 480 F. Supp. 429, (C.D. Cal., 1979)."
msgstr ""

#.  f21 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4125
msgid ""
"Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack "
"Valenti)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4090
msgid ""
"MPAA president Jack Valenti became the studios' most vocal champion. Valenti "
"called VCRs \"tapeworms.\" He warned, \"When there are 20, 30, 40 million of "
"these VCRs in the land, we will be invaded by millions of `tapeworms,' "
"eating away at the very heart and essence of the most precious asset the "
"copyright owner has, his copyright.\"<placeholder type=\"footnote\" "
"id=\"0\"/> \"One does not have to be trained in sophisticated marketing and "
"creative judgment,\" he told Congress, \"to understand the devastation on "
"the after-theater marketplace caused by the hundreds of millions of tapings "
"that will adversely impact on the future of the creative community in this "
"country. It is simply a question of basic economics and plain common "
"sense.\"<placeholder type=\"footnote\" id=\"1\"/> Indeed, as surveys would "
"later show, percent of VCR owners had movie libraries of ten videos or "
"more<placeholder type=\"footnote\" id=\"2\"/> &mdash; a use the Court would "
"later hold was not \"fair.\" By \"allowing VCR owners to copy freely by the "
"means of an exemption from copyright infringementwithout creating a "
"mechanism to compensate copyrightowners,\" Valenti testified, Congress would "
"\"take from the owners the very essence of their property: the exclusive "
"right to control who may use their work, that is, who may copy it and "
"thereby profit from its reproduction.\"<placeholder type=\"footnote\" "
"id=\"3\"/>"
msgstr ""

#.  f22 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4142
msgid ""
"<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony "
"Corp. of America</citetitle>, 659 F. 2d 963 (9th Cir.  1981)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:4145
msgid "Kozinski, Alex"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4130
msgid ""
"It took eight years for this case to be resolved by the Supreme Court. In "
"the interim, the Ninth Circuit Court of Appeals, which includes Hollywood in "
"its jurisdiction&mdash;leading Judge Alex Kozinski, who sits on that court, "
"refers to it as the \"Hollywood Circuit\"&mdash;held that Sony would be "
"liable for the copyright infringement made possible by its machines. Under "
"the Ninth Circuit's rule, this totally familiar technology&mdash;which Jack "
"Valenti had called \"the Boston Strangler of the American film industry\" "
"(worse yet, it was a <emphasis>Japanese</emphasis> Boston Strangler of the "
"American film industry)&mdash;was an illegal technology.<placeholder "
"type=\"footnote\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#.  PAGE BREAK 90 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4148
msgid ""
"But the Supreme Court reversed the decision of the Ninth Circuit.  And in "
"its reversal, the Court clearly articulated its understanding of when and "
"whether courts should intervene in such disputes. As the Court wrote,"
msgstr ""

#.  f23 
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:4167
msgid ""
"<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City "
"Studios, Inc</citetitle>., 464 U.S. 417, 431 (1984)."
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:4157
msgid ""
"Sound policy, as well as history, supports our consistent deference to "
"Congress when major technological innovations alter the market for "
"copyrighted materials. Congress has the constitutional authority and the "
"institutional ability to accommodate fully the varied permutations of "
"competing interests that are inevitably implicated by such new "
"technology.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4172
msgid ""
"Congress was asked to respond to the Supreme Court's decision.  But as with "
"the plea of recording artists about radio broadcasts, Congress ignored the "
"request. Congress was convinced that American film got enough, this "
"\"taking\" notwithstanding.  If we put these cases together, a pattern is "
"clear:"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
#: freeculture.xml:4183
msgid "CASE"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
#: freeculture.xml:4184
msgid "WHOSE VALUE WAS \"PIRATED\""
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
#: freeculture.xml:4185
msgid "RESPONSE OF THE COURTS"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
#: freeculture.xml:4186
msgid "RESPONSE OF CONGRESS"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4191
msgid "Recordings"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4192
msgid "Composers"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4193 freeculture.xml:4205 freeculture.xml:4211
msgid "No protection"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4194 freeculture.xml:4206
msgid "Statutory license"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4198
msgid "Recording artists"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4199
msgid "N/A"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4200 freeculture.xml:4212
msgid "Nothing"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4204
msgid "Broadcasters"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4209
msgid "VCR"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4210
msgid "Film creators"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4222
msgid ""
"These are the most important instances in our history, but there are other "
"cases as well. The technology of digital audio tape (DAT), for example, was "
"regulated by Congress to minimize the risk of piracy. The remedy Congress "
"imposed did burden DAT producers, by taxing tape sales and controlling the "
"technology of DAT. See Audio Home Recording Act of 1992 (Title 17 of the "
"<citetitle>United States Code</citetitle>), Pub. L. No. 102-563, 106 Stat.  "
"4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not "
"eliminate the opportunity for free riding in the sense I've described. See "
"Lessig, <citetitle>Future</citetitle>, 71. See also Picker, \"From Edison to "
"the Broadcast Flag,\" <citetitle>University of Chicago Law "
"Review</citetitle> 70 (2003): 293&ndash;96.  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4219
msgid ""
"In each case throughout our history, a new technology changed the way "
"content was distributed.<placeholder type=\"footnote\" id=\"0\"/> In each "
"case, throughout our history, that change meant that someone got a \"free "
"ride\" on someone else's work."
msgstr ""

#.  PAGE BREAK 91 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4239
msgid ""
"In <emphasis>none</emphasis> of these cases did either the courts or "
"Congress eliminate all free riding. In <emphasis>none</emphasis> of these "
"cases did the courts or Congress insist that the law should assure that the "
"copyright holder get all the value that his copyright created. In every "
"case, the copyright owners complained of \"piracy.\" In every case, Congress "
"acted to recognize some of the legitimacy in the behavior of the "
"\"pirates.\" In each case, Congress allowed some new technology to benefit "
"from content made before. It balanced the interests at stake."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4251
msgid ""
"When you think across these examples, and the other examples that make up "
"the first four chapters of this section, this balance makes sense. Was Walt "
"Disney a pirate? Would doujinshi be better if creators had to ask "
"permission? Should tools that enable others to capture and spread images as "
"a way to cultivate or criticize our culture be better regulated? Is it "
"really right that building a search engine should expose you to $15 million "
"in damages? Would it have been better if Edison had controlled film? Should "
"every cover band have to hire a lawyer to get permission to record a song?"
msgstr ""

#.  f25 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4268
msgid ""
"<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City "
"Studios, Inc</citetitle>., 464 U.S. 417, (1984)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4263
msgid ""
"We could answer yes to each of these questions, but our tradition has "
"answered no. In our tradition, as the Supreme Court has stated, copyright "
"\"has never accorded the copyright owner complete control over all possible "
"uses of his work.\"<placeholder type=\"footnote\" id=\"0\"/> Instead, the "
"particular uses that the law regulates have been defined by balancing the "
"good that comes from granting an exclusive right against the burdens such an "
"exclusive right creates. And this balancing has historically been done "
"<emphasis>after</emphasis> a technology has matured, or settled into the mix "
"of technologies that facilitate the distribution of content."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4279
msgid ""
"We should be doing the same thing today. The technology of the Internet is "
"changing quickly. The way people connect to the Internet (wires "
"vs. wireless) is changing very quickly. No doubt the network should not "
"become a tool for \"stealing\" from artists. But neither should the law "
"become a tool to entrench one particular way in which artists (or more "
"accurately, distributors) get paid. As I describe in some detail in the last "
"chapter of this book, we should be securing income to artists while we allow "
"the market to secure the most efficient way to promote and distribute "
"content. This will require changes in the law, at least in the "
"interim. These changes should be designed to balance the protection of the "
"law against the strong public interest that innovation continue."
msgstr ""

#.  f26 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4303
msgid ""
"John Schwartz, \"New Economy: The Attack on Peer-to-Peer Software Echoes "
"Past Efforts,\" <citetitle>New York Times</citetitle>, 22 September 2003, "
"C3."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4295
msgid ""
"This is especially true when a new technology enables a vastly superior mode "
"of distribution. And this p2p has done. P2p technologies can be ideally "
"efficient in moving content across a widely diverse network.  Left to "
"develop, they could make the network vastly more efficient.  Yet these "
"\"potential public benefits,\" as John Schwartz writes in <citetitle>The New "
"York Times</citetitle>, \"could be delayed in the P2P fight.\"<placeholder "
"type=\"footnote\" id=\"0\"/> Yet when anyone begins to talk about "
"\"balance,\" the copyright warriors raise a different argument. \"All this "
"hand waving about balance and incentives,\" they say, \"misses a fundamental "
"point. Our content,\" the warriors insist, \"is our "
"<emphasis>property</emphasis>. Why should we wait for Congress to "
"`rebalance' our property rights? Do you have to wait before calling the "
"police when your car has been stolen? And why should Congress deliberate at "
"all about the merits of this theft? Do we ask whether the car thief had a "
"good use for the car before we arrest him?\""
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4317
msgid ""
"\"It is <emphasis>our property</emphasis>,\" the warriors insist. \"And it "
"should be protected just as any other property is protected.\""
msgstr ""

#. type: Content of: <book><part><title>
#: freeculture.xml:4325
msgid "\"PROPERTY\""
msgstr ""

#.  PAGE BREAK 94 
#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:4330
msgid ""
"The copyright warriors are right: A copyright is a kind of property. It can "
"be owned and sold, and the law protects against its theft. Ordinarily, the "
"copyright owner gets to hold out for any price he wants. Markets reckon the "
"supply and demand that partially determine the price she can get."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:4337
msgid ""
"But in ordinary language, to call a copyright a \"property\" right is a bit "
"misleading, for the property of copyright is an odd kind of property.  "
"Indeed, the very idea of property in any idea or any expression is very "
"odd. I understand what I am taking when I take the picnic table you put in "
"your backyard. I am taking a thing, the picnic table, and after I take it, "
"you don't have it. But what am I taking when I take the good "
"<emphasis>idea</emphasis> you had to put a picnic table in the "
"backyard&mdash;by, for example, going to Sears, buying a table, and putting "
"it in my backyard? What is the thing I am taking then?"
msgstr ""

#.  f1 
#. type: Content of: <book><part><partintro><para><footnote><para>
#: freeculture.xml:4362
msgid ""
"Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in "
"<citetitle>The Writings of Thomas Jefferson</citetitle>, vol. 6 (Andrew "
"A. Lipscomb and Albert Ellery Bergh, eds., 1903), 330, 333&ndash;34."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:4349
msgid ""
"The point is not just about the thingness of picnic tables versus ideas, "
"though that's an important difference. The point instead is that in the "
"ordinary case&mdash;indeed, in practically every case except for a narrow "
"range of exceptions&mdash;ideas released to the world are free. I don't take "
"anything from you when I copy the way you dress&mdash;though I might seem "
"weird if I did it every day, and especially weird if you are a "
"woman. Instead, as Thomas Jefferson said (and as is especially true when I "
"copy the way someone else dresses), \"He who receives an idea from me, "
"receives instruction himself without lessening mine; as he who lights his "
"taper at mine, receives light without darkening me.\"<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:4368
msgid ""
"The exceptions to free use are ideas and expressions within the reach of the "
"law of patent and copyright, and a few other domains that I won't discuss "
"here. Here the law says you can't take my idea or expression without my "
"permission: The law turns the intangible into property."
msgstr ""

#.  f2 
#. type: Content of: <book><part><partintro><para><footnote><para>
#: freeculture.xml:4381
msgid ""
"As the legal realists taught American law, all property rights are "
"intangible.  A property right is simply a right that an individual has "
"against the world to do or not do certain things that may or may not attach "
"to a physical object. The right itself is intangible, even if the object to "
"which it is (metaphorically) attached is tangible. See Adam Mossoff, \"What "
"Is Property? Putting the Pieces Back Together,\" <citetitle>Arizona Law "
"Review</citetitle> 45 (2003): 373, 429 n. 241."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:4376
msgid ""
"But how, and to what extent, and in what form&mdash;the details, in other "
"words&mdash;matter. To get a good sense of how this practice of turning the "
"intangible into property emerged, we need to place this \"property\" in its "
"proper context.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:4391
msgid ""
"My strategy in doing this will be the same as my strategy in the preceding "
"part. I offer four stories to help put the idea of \"copyright material is "
"property\" in context. Where did the idea come from? What are its limits? "
"How does it function in practice? After these stories, the significance of "
"this true statement&mdash;\"copyright material is property\"&mdash; will be "
"a bit more clear, and its implications will be revealed as quite different "
"from the implications that the copyright warriors would have us draw."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:4404
msgid "CHAPTER SIX: Founders"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4405
msgid "Henry V"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4407
msgid ""
"William Shakespeare wrote <citetitle>Romeo and Juliet</citetitle> in "
"1595. The play was first published in 1597. It was the eleventh major play "
"that Shakespeare had written. He would continue to write plays through 1613, "
"and the plays that he wrote have continued to define Anglo-American culture "
"ever since. So deeply have the works of a sixteenth-century writer seeped "
"into our culture that we often don't even recognize their source.  I once "
"overheard someone commenting on Kenneth Branagh's adaptation of Henry V: \"I "
"liked it, but Shakespeare is so full of clichés.\""
msgstr ""

#.  f1 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:4422
msgid ""
"Jacob Tonson is typically remembered for his associations with prominent "
"eighteenth-century literary figures, especially John Dryden, and for his "
"handsome \"definitive editions\" of classic works. In addition to "
"<citetitle>Romeo and Juliet</citetitle>, he published an astonishing array "
"of works that still remain at the heart of the English canon, including "
"collected works of Shakespeare, Ben Jonson, John Milton, and John "
"Dryden. See Keith Walker, \"Jacob Tonson, Bookseller,\" <citetitle>American "
"Scholar</citetitle> 61:3 (1992): 424&ndash;31."
msgstr ""

#.  f2 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:4433
msgid ""
"Lyman Ray Patterson, <citetitle>Copyright in Historical "
"Perspective</citetitle> (Nashville: Vanderbilt University Press, 1968), "
"151&ndash;52."
msgstr ""

#.  PAGE BREAK 97 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4418
msgid ""
"In 1774, almost 180 years after <citetitle>Romeo and Juliet</citetitle> was "
"written, the \"copy-right\" for the work was still thought by many to be the "
"exclusive right of a single London publisher, Jacob Tonson.<placeholder "
"type=\"footnote\" id=\"0\"/> Tonson was the most prominent of a small group "
"of publishers called the Conger<placeholder type=\"footnote\" id=\"1\"/> who "
"controlled bookselling in England during the eighteenth century. The Conger "
"claimed a perpetual right to control the \"copy\" of books that they had "
"acquired from authors. That perpetual right meant that no one else could "
"publish copies of a book to which they held the copyright.  Prices of the "
"classics were thus kept high; competition to produce better or cheaper "
"editions was eliminated."
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:4455
msgid ""
"As Siva Vaidhyanathan nicely argues, it is erroneous to call this a "
"\"copyright law.\" See Vaidhyanathan, <citetitle>Copyrights and "
"Copywrongs</citetitle>, 40.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4446
msgid ""
"Now, there's something puzzling about the year 1774 to anyone who knows a "
"little about copyright law. The better-known year in the history of "
"copyright is 1710, the year that the British Parliament adopted the first "
"\"copyright\" act. Known as the Statute of Anne, the act stated that all "
"published works would get a copyright term of fourteen years, renewable once "
"if the author was alive, and that all works already published by 1710 would "
"get a single term of twenty-one additional years.<placeholder "
"type=\"footnote\" id=\"0\"/> Under this law, <citetitle>Romeo and "
"Juliet</citetitle> should have been free in 1731. So why was there any issue "
"about it still being under Tonson's control in 1774?"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:4472
msgid "Licensing Act (1662)"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4463
msgid ""
"The reason is that the English hadn't yet agreed on what a \"copyright\" "
"was&mdash;indeed, no one had. At the time the English passed the Statute of "
"Anne, there was no other legislation governing copyrights.  The last law "
"regulating publishers, the Licensing Act of 1662, had expired in 1695. That "
"law gave publishers a monopoly over publishing, as a way to make it easier "
"for the Crown to control what was published.  But after it expired, there "
"was no positive law that said that the publishers, or \"Stationers,\" had an "
"exclusive right to print books.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4475
msgid ""
"There was no <emphasis>positive</emphasis> law, but that didn't mean that "
"there was no law. The Anglo-American legal tradition looks to both the words "
"of legislatures and the words of judges to know the rules that are to govern "
"how people are to behave. We call the words from legislatures \"positive "
"law.\" We call the words from judges \"common law.\" The common law sets the "
"background against which legislatures legislate; the legislature, "
"ordinarily, can trump that background only if it passes a law to displace "
"it. And so the real question after the licensing statutes had expired was "
"whether the common law protected a copyright, independent of any positive "
"law."
msgstr ""

#.  PAGE BREAK 98 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4487
msgid ""
"This question was important to the publishers, or \"booksellers,\" as they "
"were called, because there was growing competition from foreign "
"publishers. The Scottish, in particular, were increasingly publishing and "
"exporting books to England. That competition reduced the profits of the "
"Conger, which reacted by demanding that Parliament pass a law to again give "
"them exclusive control over publishing. That demand ultimately resulted in "
"the Statute of Anne."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4499
msgid ""
"The Statute of Anne granted the author or \"proprietor\" of a book an "
"exclusive right to print that book. In an important limitation, however, and "
"to the horror of the booksellers, the law gave the bookseller that right for "
"a limited term. At the end of that term, the copyright \"expired,\" and the "
"work would then be free and could be published by anyone. Or so the "
"legislature is thought to have believed."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4508
msgid ""
"Now, the thing to puzzle about for a moment is this: Why would Parliament "
"limit the exclusive right? Not why would they limit it to the particular "
"limit they set, but why would they limit the right <emphasis>at "
"all?</emphasis>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4514
msgid ""
"For the booksellers, and the authors whom they represented, had a very "
"strong claim. Take <citetitle>Romeo and Juliet</citetitle> as an example: "
"That play was written by Shakespeare. It was his genius that brought it into "
"the world. He didn't take anybody's property when he created this play "
"(that's a controversial claim, but never mind), and by his creating this "
"play, he didn't make it any harder for others to craft a play. So why is it "
"that the law would ever allow someone else to come along and take "
"Shakespeare's play without his, or his estate's, permission? What reason is "
"there to allow someone else to \"steal\" Shakespeare's work?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4525
msgid ""
"The answer comes in two parts. We first need to see something special about "
"the notion of \"copyright\" that existed at the time of the Statute of "
"Anne. Second, we have to see something important about \"booksellers.\""
msgstr ""

#.  PAGE BREAK 99 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4531
msgid ""
"First, about copyright. In the last three hundred years, we have come to "
"apply the concept of \"copyright\" ever more broadly. But in 1710, it wasn't "
"so much a concept as it was a very particular right. The copyright was born "
"as a very specific set of restrictions: It forbade others from reprinting a "
"book. In 1710, the \"copy-right\" was a right to use a particular machine to "
"replicate a particular work. It did not go beyond that very narrow right. It "
"did not control any more generally how a work could be "
"<emphasis>used</emphasis>. Today the right includes a large collection of "
"restrictions on the freedom of others: It grants the author the exclusive "
"right to copy, the exclusive right to distribute, the exclusive right to "
"perform, and so on."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4546
msgid ""
"So, for example, even if the copyright to Shakespeare's works were "
"perpetual, all that would have meant under the original meaning of the term "
"was that no one could reprint Shakespeare's work without the permission of "
"the Shakespeare estate. It would not have controlled anything, for example, "
"about how the work could be performed, whether the work could be translated, "
"or whether Kenneth Branagh would be allowed to make his films. The "
"\"copy-right\" was only an exclusive right to print&mdash;no less, of "
"course, but also no more."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4555
msgid "Henry VIII, King of England"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4557
msgid ""
"Even that limited right was viewed with skepticism by the British.  They had "
"had a long and ugly experience with \"exclusive rights,\" especially "
"\"exclusive rights\" granted by the Crown. The English had fought a civil "
"war in part about the Crown's practice of handing out "
"monopolies&mdash;especially monopolies for works that already existed. King "
"Henry VIII granted a patent to print the Bible and a monopoly to Darcy to "
"print playing cards. The English Parliament began to fight back against this "
"power of the Crown. In 1656, it passed the Statute of Monopolies, limiting "
"monopolies to patents for new inventions. And by 1710, Parliament was eager "
"to deal with the growing monopoly in publishing."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4570
msgid ""
"Thus the \"copy-right,\" when viewed as a monopoly right, was naturally "
"viewed as a right that should be limited. (However convincing the claim that "
"\"it's my property, and I should have it forever,\" try sounding convincing "
"when uttering, \"It's my monopoly, and I should have it forever.\") The "
"state would protect the exclusive right, but only so long as it benefited "
"society. The British saw the harms from specialinterest favors; they passed "
"a law to stop them."
msgstr ""

#.  f4 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:4594
msgid ""
"Philip Wittenberg, <citetitle>The Protection and Marketing of Literary "
"Property</citetitle> (New York: J. Messner, Inc., 1937), 31."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4579
msgid ""
"Second, about booksellers. It wasn't just that the copyright was a "
"monopoly. It was also that it was a monopoly held by the booksellers.  "
"Booksellers sound quaint and harmless to us. They were not viewed as "
"harmless in seventeenth-century England. Members of the Conger were "
"increasingly seen as monopolists of the worst kind&mdash;tools of the "
"Crown's repression, selling the liberty of England to guarantee themselves a "
"monopoly profit. The attacks against these monopolists were harsh: Milton "
"described them as \"old patentees and monopolizers in the trade of "
"book-selling\"; they were \"men who do not therefore labour in an honest "
"profession to which learning is indetted.\"<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4599
msgid ""
"Many believed the power the booksellers exercised over the spread of "
"knowledge was harming that spread, just at the time the Enlightenment was "
"teaching the importance of education and knowledge spread generally. The "
"idea that knowledge should be free was a hallmark of the time, and these "
"powerful commercial interests were interfering with that idea."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4607
msgid ""
"To balance this power, Parliament decided to increase competition among "
"booksellers, and the simplest way to do that was to spread the wealth of "
"valuable books. Parliament therefore limited the term of copyrights, and "
"thereby guaranteed that valuable books would become open to any publisher to "
"publish after a limited time. Thus the setting of the term for existing "
"works to just twenty-one years was a compromise to fight the power of the "
"booksellers. The limitation on terms was an indirect way to assure "
"competition among publishers, and thus the construction and spread of "
"culture."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4619
msgid ""
"When 1731 (1710 + 21) came along, however, the booksellers were getting "
"anxious. They saw the consequences of more competition, and like every "
"competitor, they didn't like them. At first booksellers simply ignored the "
"Statute of Anne, continuing to insist on the perpetual right to control "
"publication. But in 1735 and 1737, they tried to persuade Parliament to "
"extend their terms. Twenty-one years was not enough, they said; they needed "
"more time."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4628
msgid ""
"Parliament rejected their requests. As one pamphleteer put it, in words that "
"echo today,"
msgstr ""

#.  f5 
#. type: Content of: <book><part><chapter><blockquote><para><footnote><para>
#: freeculture.xml:4643
msgid ""
"A Letter to a Member of Parliament concerning the Bill now depending in the "
"House of Commons, for making more effectual an Act in the Eighth Year of the "
"Reign of Queen Anne, entitled, An Act for the Encouragement of Learning, by "
"Vesting the Copies of Printed Books in the Authors or Purchasers of such "
"Copies, during the Times therein mentioned (London, 1735), in Brief Amici "
"Curiae of Tyler T. Ochoa et al., 8, <citetitle>Eldred</citetitle> "
"v. <citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01-618)."
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:4633
msgid ""
"I see no Reason for granting a further Term now, which will not hold as well "
"for granting it again and again, as often as the Old ones Expire; so that "
"should this Bill pass, it will in Effect be establishing a perpetual "
"Monopoly, a Thing deservedly odious in the Eye of the Law; it will be a "
"great Cramp to Trade, a Discouragement to Learning, no Benefit to the "
"Authors, but a general Tax on the Publick; and all this only to increase the "
"private Gain of the Booksellers.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4654
msgid ""
"Having failed in Parliament, the publishers turned to the courts in a series "
"of cases. Their argument was simple and direct: The Statute of Anne gave "
"authors certain protections through positive law, but those protections were "
"not intended as replacements for the common law.  Instead, they were "
"intended simply to supplement the common law.  Under common law, it was "
"already wrong to take another person's creative \"property\" and use it "
"without his permission. The Statute of Anne, the booksellers argued, didn't "
"change that. Therefore, just because the protections of the Statute of Anne "
"expired, that didn't mean the protections of the common law expired: Under "
"the common law they had the right to ban the publication of a book, even if "
"its Statute of Anne copyright had expired. This, they argued, was the only "
"way to protect authors."
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:4675
msgid ""
"Lyman Ray Patterson, \"Free Speech, Copyright, and Fair Use,\" "
"<citetitle>Vanderbilt Law Review</citetitle> 40 (1987): 28. For a "
"wonderfully compelling account, see Vaidhyanathan, 37&ndash;48.  "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4669
msgid ""
"This was a clever argument, and one that had the support of some of the "
"leading jurists of the day. It also displayed extraordinary chutzpah.  Until "
"then, as law professor Raymond Patterson has put it, \"The publishers "
"&hellip; had as much concern for authors as a cattle rancher has for "
"cattle.\"<placeholder type=\"footnote\" id=\"0\"/> The bookseller didn't "
"care squat for the rights of the author.  His concern was the monopoly "
"profit that the author's work gave."
msgstr ""

#.  f7 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:4688
msgid ""
"For a compelling account, see David Saunders, <citetitle>Authorship and "
"Copyright</citetitle> (London: Routledge, 1992), 62&ndash;69."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4684
msgid ""
"The booksellers' argument was not accepted without a fight.  The hero of "
"this fight was a Scottish bookseller named Alexander Donaldson.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  f8 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:4698
msgid ""
"Mark Rose, <citetitle>Authors and Owners</citetitle> (Cambridge: Harvard "
"University Press, 1993), 92."
msgstr ""

#.  f9 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:4708
msgid "Ibid., 93."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:4710
msgid "Boswell, James"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:4711
msgid "Erskine, Andrew"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4693
msgid ""
"Donaldson was an outsider to the London Conger. He began his career in "
"Edinburgh in 1750. The focus of his business was inexpensive reprints \"of "
"standard works whose copyright term had expired,\" at least under the "
"Statute of Anne.<placeholder type=\"footnote\" id=\"0\"/> Donaldson's "
"publishing house prospered and became \"something of a center for literary "
"Scotsmen.\" \"[A]mong them,\" Professor Mark Rose writes, was \"the young "
"James Boswell who, together with his friend Andrew Erskine, published an "
"anthology of contemporary Scottish poems with Donaldson.\"<placeholder "
"type=\"footnote\" id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> "
"<placeholder type=\"indexterm\" id=\"3\"/>"
msgstr ""

#.  f10 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:4720
msgid ""
"Lyman Ray Patterson, <citetitle>Copyright in Historical "
"Perspective</citetitle>, 167 (quoting Borwell)."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4714
msgid ""
"When the London booksellers tried to shut down Donaldson's shop in Scotland, "
"he responded by moving his shop to London, where he sold inexpensive "
"editions \"of the most popular English books, in defiance of the supposed "
"common law right of Literary Property.\"<placeholder type=\"footnote\" "
"id=\"0\"/> His books undercut the Conger prices by 30 to 50 percent, and he "
"rested his right to compete upon the ground that, under the Statute of Anne, "
"the works he was selling had passed out of protection."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4728
msgid ""
"The London booksellers quickly brought suit to block \"piracy\" like "
"Donaldson's. A number of actions were successful against the \"pirates,\" "
"the most important early victory being <citetitle>Millar</citetitle> "
"v. <citetitle>Taylor</citetitle>."
msgstr ""

#.  f11 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:4740
msgid ""
"Howard B. Abrams, \"The Historic Foundation of American Copyright Law: "
"Exploding the Myth of Common Law Copyright,\" <citetitle>Wayne Law "
"Review</citetitle> 29 (1983): 1152."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4733
msgid ""
"Millar was a bookseller who in 1729 had purchased the rights to James "
"Thomson's poem \"The Seasons.\" Millar complied with the requirements of the "
"Statute of Anne, and therefore received the full protection of the "
"statute. After the term of copyright ended, Robert Taylor began printing a "
"competing volume. Millar sued, claiming a perpetual common law right, the "
"Statute of Anne notwithstanding.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4749
msgid ""
"Astonishingly to modern lawyers, one of the greatest judges in English "
"history, Lord Mansfield, agreed with the booksellers. Whatever protection "
"the Statute of Anne gave booksellers, it did not, he held, extinguish any "
"common law right. The question was whether the common law would protect the "
"author against subsequent \"pirates.\" Mansfield's answer was yes: The "
"common law would bar Taylor from reprinting Thomson's poem without Millar's "
"permission. That common law rule thus effectively gave the booksellers a "
"perpetual right to control the publication of any book assigned to them."
msgstr ""

#.  PAGE BREAK 103 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4760
msgid ""
"Considered as a matter of abstract justice&mdash;reasoning as if justice "
"were just a matter of logical deduction from first "
"principles&mdash;Mansfield's conclusion might make some sense. But what it "
"ignored was the larger issue that Parliament had struggled with in 1710: How "
"best to limit the monopoly power of publishers? Parliament's strategy was to "
"offer a term for existing works that was long enough to buy peace in 1710, "
"but short enough to assure that culture would pass into competition within a "
"reasonable period of time. Within twenty-one years, Parliament believed, "
"Britain would mature from the controlled culture that the Crown coveted to "
"the free culture that we inherited."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4775
msgid ""
"The fight to defend the limits of the Statute of Anne was not to end there, "
"however, and it is here that Donaldson enters the mix."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4778
msgid "Beckett, Thomas"
msgstr ""

#.  f12 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:4784
msgid "Ibid., 1156."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4780
msgid ""
"Millar died soon after his victory, so his case was not appealed. His estate "
"sold Thomson's poems to a syndicate of printers that included Thomas "
"Beckett.<placeholder type=\"footnote\" id=\"0\"/> Donaldson then released an "
"unauthorized edition of Thomson's works. Beckett, on the strength of the "
"decision in <citetitle>Millar</citetitle>, got an injunction against "
"Donaldson. Donaldson appealed the case to the House of Lords, which "
"functioned much like our own Supreme Court. In February of 1774, that body "
"had the chance to interpret the meaning of Parliament's limits from sixty "
"years before."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4794
msgid ""
"As few legal cases ever do, <citetitle>Donaldson</citetitle> "
"v. <citetitle>Beckett</citetitle> drew an enormous amount of attention "
"throughout Britain. Donaldson's lawyers argued that whatever rights may have "
"existed under the common law, the Statute of Anne terminated those "
"rights. After passage of the Statute of Anne, the only legal protection for "
"an exclusive right to control publication came from that statute. Thus, they "
"argued, after the term specified in the Statute of Anne expired, works that "
"had been protected by the statute were no longer protected."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4804
msgid ""
"The House of Lords was an odd institution. Legal questions were presented to "
"the House and voted upon first by the \"law lords,\" members of special "
"legal distinction who functioned much like the Justices in our Supreme "
"Court. Then, after the law lords voted, the House of Lords generally voted."
msgstr ""

#.  PAGE BREAK 104 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4811
msgid ""
"The reports about the law lords' votes are mixed. On some counts, it looks "
"as if perpetual copyright prevailed. But there is no ambiguity about how the "
"House of Lords voted as whole. By a two-to-one majority (22 to 11) they "
"voted to reject the idea of perpetual copyrights.  Whatever one's "
"understanding of the common law, now a copyright was fixed for a limited "
"time, after which the work protected by copyright passed into the public "
"domain."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:4829
msgid "Bacon, Francis"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:4830
msgid "Bunyan, John"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:4831
msgid "Johnson, Samuel"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:4832
msgid "Milton, John"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:4833
msgid "Shakespeare, William"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4821
msgid ""
"\"The public domain.\" Before the case of <citetitle>Donaldson</citetitle> "
"v. <citetitle>Beckett</citetitle>, there was no clear idea of a public "
"domain in England. Before 1774, there was a strong argument that common law "
"copyrights were perpetual.  After 1774, the public domain was born. For the "
"first time in Anglo-American history, the legal control over creative works "
"expired, and the greatest works in English history&mdash;including those of "
"Shakespeare, Bacon, Milton, Johnson, and Bunyan&mdash;were free of legal "
"restraint.  <placeholder type=\"indexterm\" id=\"0\"/> <placeholder "
"type=\"indexterm\" id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> "
"<placeholder type=\"indexterm\" id=\"3\"/> <placeholder type=\"indexterm\" "
"id=\"4\"/>"
msgstr ""

#.  f13 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:4846
msgid "Rose, 97."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4836
msgid ""
"It is hard for us to imagine, but this decision by the House of Lords fueled "
"an extraordinarily popular and political reaction. In Scotland, where most "
"of the \"pirate publishers\" did their work, people celebrated the decision "
"in the streets. As the <citetitle>Edinburgh Advertiser</citetitle> reported, "
"\"No private cause has so much engrossed the attention of the public, and "
"none has been tried before the House of Lords in the decision of which so "
"many individuals were interested.\" \"Great rejoicing in Edinburgh upon "
"victory over literary property: bonfires and illuminations.\"<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4850
msgid ""
"In London, however, at least among publishers, the reaction was equally "
"strong in the opposite direction. The <citetitle>Morning "
"Chronicle</citetitle> reported:"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:4856
msgid ""
"By the above decision &hellip; near 200,000 pounds worth of what was "
"honestly purchased at public sale, and which was yesterday thought property "
"is now reduced to nothing. The Booksellers of London and Westminster, many "
"of whom sold estates and houses to purchase Copy-right, are in a manner "
"ruined, and those who after many years industry thought they had acquired a "
"competency to provide for their families now find themselves without a "
"shilling to devise to their successors.<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 105 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4871
msgid ""
"\"Ruined\" is a bit of an exaggeration. But it is not an exaggeration to say "
"that the change was profound. The decision of the House of Lords meant that "
"the booksellers could no longer control how culture in England would grow "
"and develop. Culture in England was thereafter <emphasis>free</emphasis>.  "
"Not in the sense that copyrights would not be respected, for of course, for "
"a limited time after a work was published, the bookseller had an exclusive "
"right to control the publication of that book. And not in the sense that "
"books could be stolen, for even after a copyright expired, you still had to "
"buy the book from someone. But <emphasis>free</emphasis> in the sense that "
"the culture and its growth would no longer be controlled by a small group of "
"publishers. As every free market does, this free market of free culture "
"would grow as the consumers and producers chose. English culture would "
"develop as the many English readers chose to let it develop&mdash; chose in "
"the books they bought and wrote; chose in the memes they repeated and "
"endorsed. Chose in a <emphasis>competitive context</emphasis>, not a context "
"in which the choices about what culture is available to people and how they "
"get access to it are made by the few despite the wishes of the many."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4892
msgid ""
"At least, this was the rule in a world where the Parliament is antimonopoly, "
"resistant to the protectionist pleas of publishers. In a world where the "
"Parliament is more pliant, free culture would be less protected."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:4900
msgid "CHAPTER SEVEN: Recorders"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4902
msgid ""
"Jon Else is a filmmaker. He is best known for his documentaries and has been "
"very successful in spreading his art. He is also a teacher, and as a teacher "
"myself, I envy the loyalty and admiration that his students feel for him. (I "
"met, by accident, two of his students at a dinner party.  He was their god.)"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4909
msgid ""
"Else worked on a documentary that I was involved in. At a break, he told me "
"a story about the freedom to create with film in America today."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:4920 freeculture.xml:4989
msgid "San Francisco Opera"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4914
msgid ""
"In 1990, Else was working on a documentary about Wagner's Ring Cycle. The "
"focus was stagehands at the San Francisco Opera.  Stagehands are a "
"particularly funny and colorful element of an opera.  During a show, they "
"hang out below the stage in the grips' lounge and in the lighting loft. They "
"make a perfect contrast to the art on the stage.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 107 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4923
msgid ""
"During one of the performances, Else was shooting some stagehands playing "
"checkers. In one corner of the room was a television set.  Playing on the "
"television set, while the stagehands played checkers and the opera company "
"played Wagner, was <citetitle>The Simpsons</citetitle>. As Else judged it, "
"this touch of cartoon helped capture the flavor of what was special about "
"the scene."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4932
msgid ""
"Years later, when he finally got funding to complete the film, Else "
"attempted to clear the rights for those few seconds of <citetitle>The "
"Simpsons</citetitle>.  For of course, those few seconds are copyrighted; and "
"of course, to use copyrighted material you need the permission of the "
"copyright owner, unless \"fair use\" or some other privilege applies."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:4944 freeculture.xml:4952
msgid "Gracie Films"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4939
msgid ""
"Else called <citetitle>Simpsons</citetitle> creator Matt Groening's office "
"to get permission.  Groening approved the shot. The shot was a "
"four-and-a-halfsecond image on a tiny television set in the corner of the "
"room. How could it hurt? Groening was happy to have it in the film, but he "
"told Else to contact Gracie Films, the company that produces the program.  "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4947
msgid ""
"Gracie Films was okay with it, too, but they, like Groening, wanted to be "
"careful. So they told Else to contact Fox, Gracie's parent company.  Else "
"called Fox and told them about the clip in the corner of the one room shot "
"of the film. Matt Groening had already given permission, Else said. He was "
"just confirming the permission with Fox.  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4955
msgid ""
"Then, as Else told me, \"two things happened. First we discovered &hellip; "
"that Matt Groening doesn't own his own creation&mdash;or at least that "
"someone [at Fox] believes he doesn't own his own creation.\" And second, Fox "
"\"wanted ten thousand dollars as a licensing fee for us to use this "
"four-point-five seconds of &hellip; entirely unsolicited "
"<citetitle>Simpsons</citetitle> which was in the corner of the shot.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4963
msgid ""
"Else was certain there was a mistake. He worked his way up to someone he "
"thought was a vice president for licensing, Rebecca Herrera.  He explained "
"to her, \"There must be some mistake here. &hellip; We're asking for your "
"educational rate on this.\" That was the educational rate, Herrera told "
"Else. A day or so later, Else called again to confirm what he had been told."
msgstr ""

#.  PAGE BREAK 108 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4971
msgid ""
"\"I wanted to make sure I had my facts straight,\" he told me. \"Yes, you "
"have your facts straight,\" she said. It would cost $10,000 to use the clip "
"of <citetitle>The Simpsons</citetitle> in the corner of a shot in a "
"documentary film about Wagner's Ring Cycle. And then, astonishingly, Herrera "
"told Else, \"And if you quote me, I'll turn you over to our attorneys.\" As "
"an assistant to Herrera told Else later on, \"They don't give a shit. They "
"just want the money.\""
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:4990
msgid "Day After Trinity, The"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4983
msgid ""
"Else didn't have the money to buy the right to replay what was playing on "
"the television backstage at the San Francisco Opera. To reproduce this "
"reality was beyond the documentary filmmaker's budget. At the very last "
"minute before the film was to be released, Else digitally replaced the shot "
"with a clip from another film that he had worked on, <citetitle>The Day "
"After Trinity</citetitle>, from ten years before.  <placeholder "
"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4993
msgid ""
"There's no doubt that someone, whether Matt Groening or Fox, owns the "
"copyright to <citetitle>The Simpsons</citetitle>. That copyright is their "
"property.  To use that copyrighted material thus sometimes requires the "
"permission of the copyright owner. If the use that Else wanted to make of "
"the <citetitle>Simpsons</citetitle> copyright were one of the uses "
"restricted by the law, then he would need to get the permission of the "
"copyright owner before he could use the work in that way. And in a free "
"market, it is the owner of the copyright who gets to set the price for any "
"use that the law says the owner gets to control."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5004
msgid ""
"For example, \"public performance\" is a use of <citetitle>The "
"Simpsons</citetitle> that the copyright owner gets to control. If you take a "
"selection of favorite episodes, rent a movie theater, and charge for tickets "
"to come see \"My Favorite <citetitle>Simpsons</citetitle>,\" then you need "
"to get permission from the copyright owner. And the copyright owner "
"(rightly, in my view) can charge whatever she wants&mdash;$10 or "
"$1,000,000. That's her right, as set by the law."
msgstr ""

#.  f1 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:5016
msgid ""
"For an excellent argument that such use is \"fair use,\" but that lawyers "
"don't permit recognition that it is \"fair use,\" see Richard A. Posner with "
"William F. Patry, \"Fair Use and Statutory Reform in the Wake of "
"<citetitle>Eldred</citetitle>\" (draft on file with author), University of "
"Chicago Law School, 5 August 2003."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5013
msgid ""
"But when lawyers hear this story about Jon Else and Fox, their first thought "
"is \"fair use.\"<placeholder type=\"footnote\" id=\"0\"/> Else's use of just "
"4.5 seconds of an indirect shot of a <citetitle>Simpsons</citetitle> episode "
"is clearly a fair use of <citetitle>The Simpsons</citetitle>&mdash;and fair "
"use does not require the permission of anyone."
msgstr ""

#.  PAGE BREAK 109 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5028
msgid "So I asked Else why he didn't just rely upon \"fair use.\" Here's his reply:"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:5032
msgid ""
"The <citetitle>Simpsons</citetitle> fiasco was for me a great lesson in the "
"gulf between what lawyers find irrelevant in some abstract sense, and what "
"is crushingly relevant in practice to those of us actually trying to make "
"and broadcast documentaries. I never had any doubt that it was \"clearly "
"fair use\" in an absolute legal sense. But I couldn't rely on the concept in "
"any concrete way. Here's why:"
msgstr ""

#.  1. 
#. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><para>
#: freeculture.xml:5042
msgid ""
"Before our films can be broadcast, the network requires that we buy Errors "
"and Omissions insurance. The carriers require a detailed \"visual cue "
"sheet\" listing the source and licensing status of each shot in the "
"film. They take a dim view of \"fair use,\" and a claim of \"fair use\" can "
"grind the application process to a halt."
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><para><indexterm><primary>
#: freeculture.xml:5059
msgid "Lucas, George"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><para>
#: freeculture.xml:5050
msgid ""
"I probably never should have asked Matt Groening in the first place. But I "
"knew (at least from folklore) that Fox had a history of tracking down and "
"stopping unlicensed <citetitle>Simpsons</citetitle> usage, just as George "
"Lucas had a very high profile litigating <citetitle>Star Wars</citetitle> "
"usage. So I decided to play by the book, thinking that we would be granted "
"free or cheap license to four seconds of <citetitle>Simpsons</citetitle>. As "
"a documentary producer working to exhaustion on a shoestring, the last thing "
"I wanted was to risk legal trouble, even nuisance legal trouble, and even to "
"defend a principle.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#.  3. 
#.  PAGE BREAK 110 
#. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><para>
#: freeculture.xml:5063
msgid ""
"I did, in fact, speak with one of your colleagues at Stanford Law School "
"&hellip; who confirmed that it was fair use. He also confirmed that Fox "
"would \"depose and litigate you to within an inch of your life,\" regardless "
"of the merits of my claim. He made clear that it would boil down to who had "
"the bigger legal department and the deeper pockets, me or them."
msgstr ""

#.  4. 
#. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><para>
#: freeculture.xml:5073
msgid ""
"The question of fair use usually comes up at the end of the project, when we "
"are up against a release deadline and out of money."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5080
msgid ""
"In theory, fair use means you need no permission. The theory therefore "
"supports free culture and insulates against a permission culture.  But in "
"practice, fair use functions very differently. The fuzzy lines of the law, "
"tied to the extraordinary liability if lines are crossed, means that the "
"effective fair use for many types of creators is slight. The law has the "
"right aim; practice has defeated the aim."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5088
msgid ""
"This practice shows just how far the law has come from its "
"eighteenth-century roots. The law was born as a shield to protect "
"publishers' profits against the unfair competition of a pirate. It has "
"matured into a sword that interferes with any use, transformative or not."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:5097
msgid "CHAPTER EIGHT: Transformers"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5098
msgid "Allen, Paul"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:5099 freeculture.xml:5107 freeculture.xml:5118 freeculture.xml:5133 freeculture.xml:5142 freeculture.xml:5147 freeculture.xml:5199 freeculture.xml:5215 freeculture.xml:5238 freeculture.xml:5301 freeculture.xml:9673
msgid "Alben, Alex"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5101
msgid ""
"In 1993, Alex Alben was a lawyer working at Starwave, Inc.  Starwave was an "
"innovative company founded by Microsoft cofounder Paul Allen to develop "
"digital entertainment. Long before the Internet became popular, Starwave "
"began investing in new technology for delivering entertainment in "
"anticipation of the power of networks."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5109
msgid ""
"Alben had a special interest in new technology. He was intrigued by the "
"emerging market for CD-ROM technology&mdash;not to distribute film, but to "
"do things with film that otherwise would be very difficult.  In 1993, he "
"launched an initiative to develop a product to build retrospectives on the "
"work of particular actors. The first actor chosen was Clint Eastwood. The "
"idea was to showcase all of the work of Eastwood, with clips from his films "
"and interviews with figures important to his career."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5120
msgid ""
"At that time, Eastwood had made more than fifty films, as an actor and as a "
"director. Alben began with a series of interviews with Eastwood, asking him "
"about his career. Because Starwave produced those interviews, it was free to "
"include them on the CD."
msgstr ""

#.  PAGE BREAK 112 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5127
msgid ""
"That alone would not have made a very interesting product, so Starwave "
"wanted to add content from the movies in Eastwood's career: posters, "
"scripts, and other material relating to the films Eastwood made. Most of his "
"career was spent at Warner Brothers, and so it was relatively easy to get "
"permission for that content."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5135
msgid ""
"Then Alben and his team decided to include actual film clips. \"Our goal was "
"that we were going to have a clip from every one of Eastwood's films,\" "
"Alben told me. It was here that the problem arose. \"No one had ever really "
"done this before,\" Alben explained. \"No one had ever tried to do this in "
"the context of an artistic look at an actor's career.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5144
msgid ""
"Alben brought the idea to Michael Slade, the CEO of Starwave.  Slade asked, "
"\"Well, what will it take?\""
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:5160
msgid "artists"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para><indexterm><secondary>
#: freeculture.xml:5161
msgid "publicity rights on images of"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:5155
msgid ""
"Technically, the rights that Alben had to clear were mainly those of "
"publicity&mdash;rights an artist has to control the commercial exploitation "
"of his image.  But these rights, too, burden \"Rip, Mix, Burn\" creativity, "
"as this chapter evinces.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5149
msgid ""
"Alben replied, \"Well, we're going to have to clear rights from everyone who "
"appears in these films, and the music and everything else that we want to "
"use in these film clips.\" Slade said, \"Great! Go for it.\"<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5166
msgid ""
"The problem was that neither Alben nor Slade had any idea what clearing "
"those rights would mean. Every actor in each of the films could have a claim "
"to royalties for the reuse of that film. But CD- ROMs had not been specified "
"in the contracts for the actors, so there was no clear way to know just what "
"Starwave was to do."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5173
msgid ""
"I asked Alben how he dealt with the problem. With an obvious pride in his "
"resourcefulness that obscured the obvious bizarreness of his tale, Alben "
"recounted just what they did:"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:5179
msgid ""
"So we very mechanically went about looking up the film clips.  We made some "
"artistic decisions about what film clips to include&mdash;of course we were "
"going to use the \"Make my day\" clip from <citetitle>Dirty "
"Harry</citetitle>. But you then need to get the guy on the ground who's "
"wiggling under the gun and you need to get his permission.  And then you "
"have to decide what you are going to pay him."
msgstr ""

#.  PAGE BREAK 113 
#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:5188
msgid ""
"We decided that it would be fair if we offered them the dayplayer rate for "
"the right to reuse that performance. We're talking about a clip of less than "
"a minute, but to reuse that performance in the CD-ROM the rate at the time "
"was about $600.  So we had to identify the people&mdash;some of them were "
"hard to identify because in Eastwood movies you can't tell who's the guy "
"crashing through the glass&mdash;is it the actor or is it the stuntman? And "
"then we just, we put together a team, my assistant and some others, and we "
"just started calling people."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5201
msgid ""
"Some actors were glad to help&mdash;Donald Sutherland, for example, followed "
"up himself to be sure that the rights had been cleared.  Others were "
"dumbfounded at their good fortune. Alben would ask, \"Hey, can I pay you "
"$600 or maybe if you were in two films, you know, $1,200?\" And they would "
"say, \"Are you for real? Hey, I'd love to get $1,200.\" And some of course "
"were a bit difficult (estranged ex-wives, in particular). But eventually, "
"Alben and his team had cleared the rights to this retrospective CD-ROM on "
"Clint Eastwood's career."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5212
msgid ""
"It was one <emphasis>year</emphasis> later&mdash;\"and even then we weren't "
"sure whether we were totally in the clear.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5217
msgid ""
"Alben is proud of his work. The project was the first of its kind and the "
"only time he knew of that a team had undertaken such a massive project for "
"the purpose of releasing a retrospective."
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:5223
msgid ""
"Everyone thought it would be too hard. Everyone just threw up their hands "
"and said, \"Oh, my gosh, a film, it's so many copyrights, there's the music, "
"there's the screenplay, there's the director, there's the actors.\" But we "
"just broke it down. We just put it into its constituent parts and said, "
"\"Okay, there's this many actors, this many directors, &hellip; this many "
"musicians,\" and we just went at it very systematically and cleared the "
"rights."
msgstr ""

#.  PAGE BREAK 114 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5235
msgid ""
"And no doubt, the product itself was exceptionally good. Eastwood loved it, "
"and it sold very well."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5239
msgid "Drucker, Peter"
msgstr ""

#.  f2 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:5247
msgid ""
"U.S. Department of Commerce Office of Acquisition Management, "
"<citetitle>Seven Steps to Performance-Based Services "
"Acquisition</citetitle>, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #22</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5241
msgid ""
"But I pressed Alben about how weird it seems that it would have to take a "
"year's work simply to clear rights. No doubt Alben had done this "
"efficiently, but as Peter Drucker has famously quipped, \"There is nothing "
"so useless as doing efficiently that which should not be done at "
"all.\"<placeholder type=\"footnote\" id=\"0\"/> Did it make sense, I asked "
"Alben, that this is the way a new work has to be made?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5255
msgid ""
"For, as he acknowledged, \"very few &hellip; have the time and resources, "
"and the will to do this,\" and thus, very few such works would ever be "
"made. Does it make sense, I asked him, from the standpoint of what anybody "
"really thought they were ever giving rights for originally, that you would "
"have to go clear rights for these kinds of clips?"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:5263
msgid ""
"I don't think so. When an actor renders a performance in a movie, he or she "
"gets paid very well. &hellip; And then when 30 seconds of that performance "
"is used in a new product that is a retrospective of somebody's career, I "
"don't think that that person &hellip; should be compensated for that."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5271
msgid ""
"Or at least, is this <emphasis>how</emphasis> the artist should be "
"compensated? Would it make sense, I asked, for there to be some kind of "
"statutory license that someone could pay and be free to make derivative use "
"of clips like this? Did it really make sense that a follow-on creator would "
"have to track down every artist, actor, director, musician, and get explicit "
"permission from each? Wouldn't a lot more be created if the legal part of "
"the creative process could be made to be more clean?"
msgstr ""

#.  PAGE BREAK 115 
#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:5282
msgid ""
"Absolutely. I think that if there were some fair-licensing "
"mechanism&mdash;where you weren't subject to hold-ups and you weren't "
"subject to estranged former spouses&mdash;you'd see a lot more of this work, "
"because it wouldn't be so daunting to try to put together a retrospective of "
"someone's career and meaningfully illustrate it with lots of media from that "
"person's career. You'd build in a cost as the producer of one of these "
"things. You'd build in a cost of paying X dollars to the talent that "
"performed. But it would be a known cost. That's the thing that trips "
"everybody up and makes this kind of product hard to get off the ground. If "
"you knew I have a hundred minutes of film in this product and it's going to "
"cost me X, then you build your budget around it, and you can get investments "
"and everything else that you need to produce it. But if you say, \"Oh, I "
"want a hundred minutes of something and I have no idea what it's going to "
"cost me, and a certain number of people are going to hold me up for money,\" "
"then it becomes difficult to put one of these things together."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5303
msgid ""
"Alben worked for a big company. His company was backed by some of the "
"richest investors in the world. He therefore had authority and access that "
"the average Web designer would not have. So if it took him a year, how long "
"would it take someone else? And how much creativity is never made just "
"because the costs of clearing the rights are so high? These costs are the "
"burdens of a kind of regulation. Put on a Republican hat for a moment, and "
"get angry for a bit. The government defines the scope of these rights, and "
"the scope defined determines how much it's going to cost to negotiate "
"them. (Remember the idea that land runs to the heavens, and imagine the "
"pilot purchasing flythrough rights as he negotiates to fly from Los Angeles "
"to San Francisco.)  These rights might well have once made sense; but as "
"circumstances change, they make no sense at all. Or at least, a "
"well-trained, regulationminimizing Republican should look at the rights and "
"ask, \"Does this still make sense?\""
msgstr ""

#.  PAGE BREAK 116 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5320
msgid ""
"I've seen the flash of recognition when people get this point, but only a "
"few times. The first was at a conference of federal judges in California.  "
"The judges were gathered to discuss the emerging topic of cyber-law. I was "
"asked to be on the panel. Harvey Saferstein, a well-respected lawyer from an "
"L.A. firm, introduced the panel with a video that he and a friend, Robert "
"Fairbank, had produced."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5330
msgid ""
"The video was a brilliant collage of film from every period in the twentieth "
"century, all framed around the idea of a <citetitle>60 Minutes</citetitle> "
"episode.  The execution was perfect, down to the sixty-minute stopwatch. The "
"judges loved every minute of it."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5335
msgid "Nimmer, David"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5337
msgid ""
"When the lights came up, I looked over to my copanelist, David Nimmer, "
"perhaps the leading copyright scholar and practitioner in the nation. He had "
"an astonished look on his face, as he peered across the room of over 250 "
"well-entertained judges. Taking an ominous tone, he began his talk with a "
"question: \"Do you know how many federal laws were just violated in this "
"room?\""
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5344
msgid "Boies, David"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5346
msgid ""
"For of course, the two brilliantly talented creators who made this film "
"hadn't done what Alben did. They hadn't spent a year clearing the rights to "
"these clips; technically, what they had done violated the law.  Of course, "
"it wasn't as if they or anyone were going to be prosecuted for this "
"violation (the presence of 250 judges and a gaggle of federal marshals "
"notwithstanding). But Nimmer was making an important point: A year before "
"anyone would have heard of the word Napster, and two years before another "
"member of our panel, David Boies, would defend Napster before the Ninth "
"Circuit Court of Appeals, Nimmer was trying to get the judges to see that "
"the law would not be friendly to the capacities that this technology would "
"enable. Technology means you can now do amazing things easily; but you "
"couldn't easily do them legally."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5361
msgid ""
"We live in a \"cut and paste\" culture enabled by technology. Anyone "
"building a presentation knows the extraordinary freedom that the cut and "
"paste architecture of the Internet created&mdash;in a second you can find "
"just about any image you want; in another second, you can have it planted in "
"your presentation."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:5377
msgid "Camp Chaos"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5368
msgid ""
"But presentations are just a tiny beginning. Using the Internet and its "
"archives, musicians are able to string together mixes of sound never before "
"imagined; filmmakers are able to build movies out of clips on computers "
"around the world. An extraordinary site in Sweden takes images of "
"politicians and blends them with music to create biting political "
"commentary. A site called Camp Chaos has produced some of the most biting "
"criticism of the record industry that there is through the mixing of Flash! "
"and music.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5380
msgid ""
"All of these creations are technically illegal. Even if the creators wanted "
"to be \"legal,\" the cost of complying with the law is impossibly "
"high. Therefore, for the law-abiding sorts, a wealth of creativity is never "
"made. And for that part that is made, if it doesn't follow the clearance "
"rules, it doesn't get released."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5387
msgid ""
"To some, these stories suggest a solution: Let's alter the mix of rights so "
"that people are free to build upon our culture. Free to add or mix as they "
"see fit. We could even make this change without necessarily requiring that "
"the \"free\" use be free as in \"free beer.\" Instead, the system could "
"simply make it easy for follow-on creators to compensate artists without "
"requiring an army of lawyers to come along: a rule, for example, that says "
"\"the royalty owed the copyright owner of an unregistered work for the "
"derivative reuse of his work will be a flat 1 percent of net revenues, to be "
"held in escrow for the copyright owner.\" Under this rule, the copyright "
"owner could benefit from some royalty, but he would not have the benefit of "
"a full property right (meaning the right to name his own price) unless he "
"registers the work."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5402
msgid ""
"Who could possibly object to this? And what reason would there be for "
"objecting? We're talking about work that is not now being made; which if "
"made, under this plan, would produce new income for artists.  What reason "
"would anyone have to oppose it?"
msgstr ""

#.  PAGE BREAK 118 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5408
msgid ""
"In February 2003, DreamWorks studios announced an agreement with Mike Myers, "
"the comic genius of <citetitle>Saturday Night Live</citetitle> and Austin "
"Powers. According to the announcement, Myers and Dream-Works would work "
"together to form a \"unique filmmaking pact.\" Under the agreement, "
"DreamWorks \"will acquire the rights to existing motion picture hits and "
"classics, write new storylines and&mdash;with the use of stateof-the-art "
"digital technology&mdash;insert Myers and other actors into the film, "
"thereby creating an entirely new piece of entertainment.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5420
msgid ""
"The announcement called this \"film sampling.\" As Myers explained, \"Film "
"Sampling is an exciting way to put an original spin on existing films and "
"allow audiences to see old movies in a new light. Rap artists have been "
"doing this for years with music and now we are able to take that same "
"concept and apply it to film.\" Steven Spielberg is quoted as saying, \"If "
"anyone can create a way to bring old films to new audiences, it is Mike.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5429
msgid ""
"Spielberg is right. Film sampling by Myers will be brilliant. But if you "
"don't think about it, you might miss the truly astonishing point about this "
"announcement. As the vast majority of our film heritage remains under "
"copyright, the real meaning of the DreamWorks announcement is just this: It "
"is Mike Myers and only Mike Myers who is free to sample. Any general freedom "
"to build upon the film archive of our culture, a freedom in other contexts "
"presumed for us all, is now a privilege reserved for the funny and "
"famous&mdash;and presumably rich."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5439
msgid ""
"This privilege becomes reserved for two sorts of reasons. The first "
"continues the story of the last chapter: the vagueness of \"fair use.\" Much "
"of \"sampling\" should be considered \"fair use.\" But few would rely upon "
"so weak a doctrine to create. That leads to the second reason that the "
"privilege is reserved for the few: The costs of negotiating the legal rights "
"for the creative reuse of content are astronomically high.  These costs "
"mirror the costs with fair use: You either pay a lawyer to defend your fair "
"use rights or pay a lawyer to track down permissions so you don't have to "
"rely upon fair use rights. Either way, the creative process is a process of "
"paying lawyers&mdash;again a privilege, or perhaps a curse, reserved for the "
"few."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:5454
msgid "CHAPTER NINE: Collectors"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5456
msgid ""
"In April 1996, millions of \"bots\"&mdash;computer codes designed to "
"\"spider,\" or automatically search the Internet and copy "
"content&mdash;began running across the Net. Page by page, these bots copied "
"Internet-based information onto a small set of computers located in a "
"basement in San Francisco's Presidio. Once the bots finished the whole of "
"the Internet, they started again. Over and over again, once every two "
"months, these bits of code took copies of the Internet and stored them."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5465
msgid ""
"By October 2001, the bots had collected more than five years of copies. And "
"at a small announcement in Berkeley, California, the archive that these "
"copies created, the Internet Archive, was opened to the world. Using a "
"technology called \"the Way Back Machine,\" you could enter a Web page, and "
"see all of its copies going back to 1996, as well as when those pages "
"changed."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5473
msgid ""
"This is the thing about the Internet that Orwell would have appreciated.  In "
"the dystopia described in <citetitle>1984</citetitle>, old newspapers were "
"constantly updated to assure that the current view of the world, approved of "
"by the government, was not contradicted by previous news reports."
msgstr ""

#.  PAGE BREAK 120 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5481
msgid ""
"Thousands of workers constantly reedited the past, meaning there was no way "
"ever to know whether the story you were reading today was the story that was "
"printed on the date published on the paper."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5486
msgid ""
"It's the same with the Internet. If you go to a Web page today, there's no "
"way for you to know whether the content you are reading is the same as the "
"content you read before. The page may seem the same, but the content could "
"easily be different. The Internet is Orwell's library&mdash;constantly "
"updated, without any reliable memory."
msgstr ""

#.  f1 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:5499
msgid ""
"The temptations remain, however. Brewster Kahle reports that the White House "
"changes its own press releases without notice. A May 13, 2003, press release "
"stated, \"Combat Operations in Iraq Have Ended.\" That was later changed, "
"without notice, to \"Major Combat Operations in Iraq Have Ended.\" E-mail "
"from Brewster Kahle, 1 December 2003."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5493
msgid ""
"Until the Way Back Machine, at least. With the Way Back Machine, and the "
"Internet Archive underlying it, you can see what the Internet was. You have "
"the power to see what you remember. More importantly, perhaps, you also have "
"the power to find what you don't remember and what others might prefer you "
"forget.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5507
msgid ""
"We take it for granted that we can go back to see what we remember "
"reading. Think about newspapers. If you wanted to study the reaction of your "
"hometown newspaper to the race riots in Watts in 1965, or to Bull Connor's "
"water cannon in 1963, you could go to your public library and look at the "
"newspapers. Those papers probably exist on microfiche. If you're lucky, they "
"exist in paper, too. Either way, you are free, using a library, to go back "
"and remember&mdash;not just what it is convenient to remember, but remember "
"something close to the truth."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5518
msgid ""
"It is said that those who fail to remember history are doomed to repeat "
"it. That's not quite correct. We <emphasis>all</emphasis> forget "
"history. The key is whether we have a way to go back to rediscover what we "
"forget. More directly, the key is whether an objective past can keep us "
"honest. Libraries help do that, by collecting content and keeping it, for "
"schoolchildren, for researchers, for grandma. A free society presumes this "
"knowedge."
msgstr ""

#.  PAGE BREAK 121 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5527
msgid ""
"The Internet was an exception to this presumption. Until the Internet "
"Archive, there was no way to go back. The Internet was the quintessentially "
"transitory medium. And yet, as it becomes more important in forming and "
"reforming society, it becomes more and more important to maintain in some "
"historical form. It's just bizarre to think that we have scads of archives "
"of newspapers from tiny towns around the world, yet there is but one copy of "
"the Internet&mdash;the one kept by the Internet Archive."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5538
msgid ""
"Brewster Kahle is the founder of the Internet Archive. He was a very "
"successful Internet entrepreneur after he was a successful computer "
"researcher.  In the 1990s, Kahle decided he had had enough business "
"success.  It was time to become a different kind of success. So he launched "
"a series of projects designed to archive human knowledge. The Internet "
"Archive was just the first of the projects of this Andrew Carnegie of the "
"Internet. By December of 2002, the archive had over 10 billion pages, and it "
"was growing at about a billion pages a month."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5548
msgid ""
"The Way Back Machine is the largest archive of human knowledge in human "
"history. At the end of 2002, it held \"two hundred and thirty terabytes of "
"material\"&mdash;and was \"ten times larger than the Library of Congress.\" "
"And this was just the first of the archives that Kahle set out to build. In "
"addition to the Internet Archive, Kahle has been constructing the Television "
"Archive. Television, it turns out, is even more ephemeral than the "
"Internet. While much of twentieth-century culture was constructed through "
"television, only a tiny proportion of that culture is available for anyone "
"to see today. Three hours of news are recorded each evening by Vanderbilt "
"University&mdash;thanks to a specific exemption in the copyright law. That "
"content is indexed, and is available to scholars for a very low fee. \"But "
"other than that, [television] is almost unavailable,\" Kahle told me. \"If "
"you were Barbara Walters you could get access to [the archives], but if you "
"are just a graduate student?\" As Kahle put it,"
msgstr ""

#.  PAGE BREAK 122 
#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:5566
msgid ""
"Do you remember when Dan Quayle was interacting with Murphy Brown? Remember "
"that back and forth surreal experience of a politician interacting with a "
"fictional television character? If you were a graduate student wanting to "
"study that, and you wanted to get those original back and forth exchanges "
"between the two, the <citetitle>60 Minutes</citetitle> episode that came out "
"after it &hellip; it would be almost impossible. &hellip; Those materials "
"are almost unfindable. &hellip;"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5578
msgid ""
"Why is that? Why is it that the part of our culture that is recorded in "
"newspapers remains perpetually accessible, while the part that is recorded "
"on videotape is not? How is it that we've created a world where researchers "
"trying to understand the effect of media on nineteenthcentury America will "
"have an easier time than researchers trying to understand the effect of "
"media on twentieth-century America?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5586
msgid ""
"In part, this is because of the law. Early in American copyright law, "
"copyright owners were required to deposit copies of their work in "
"libraries.  These copies were intended both to facilitate the spread of "
"knowledge and to assure that a copy of the work would be around once the "
"copyright expired, so that others might access and copy the work."
msgstr ""

#.  f2 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:5603
msgid ""
"Doug Herrick, \"Toward a National Film Collection: Motion Pictures at the "
"Library of Congress,\" <citetitle>Film Library Quarterly</citetitle> 13 "
"nos. 2&ndash;3 (1980): 5; Anthony Slide, <citetitle>Nitrate Won't Wait: A "
"History of Film Preservation in the United States</citetitle> ( Jefferson, "
"N.C.: McFarland &amp; Co., 1992), 36."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5594
msgid ""
"These rules applied to film as well. But in 1915, the Library of Congress "
"made an exception for film. Film could be copyrighted so long as such "
"deposits were made. But the filmmaker was then allowed to borrow back the "
"deposits&mdash;for an unlimited time at no cost. In 1915 alone, there were "
"more than 5,475 films deposited and \"borrowed back.\" Thus, when the "
"copyrights to films expire, there is no copy held by any library. The copy "
"exists&mdash;if it exists at all&mdash;in the library archive of the film "
"company.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5611
msgid ""
"The same is generally true about television. Television broadcasts were "
"originally not copyrighted&mdash;there was no way to capture the broadcasts, "
"so there was no fear of \"theft.\" But as technology enabled capturing, "
"broadcasters relied increasingly upon the law. The law required they make a "
"copy of each broadcast for the work to be \"copyrighted.\" But those copies "
"were simply kept by the broadcasters. No library had any right to them; the "
"government didn't demand them.  The content of this part of American culture "
"is practically invisible to anyone who would look."
msgstr ""

#.  PAGE BREAK 123 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5622
msgid ""
"Kahle was eager to correct this. Before September 11, 2001, he and his "
"allies had started capturing television. They selected twenty stations from "
"around the world and hit the Record button. After September 11, Kahle, "
"working with dozens of others, selected twenty stations from around the "
"world and, beginning October 11, 2001, made their coverage during the week "
"of September 11 available free on-line.  Anyone could see how news reports "
"from around the world covered the events of that day."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:5649
msgid "Movie Archive"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5633
msgid ""
"Kahle had the same idea with film. Working with Rick Prelinger, whose "
"archive of film includes close to 45,000 \"ephemeral films\" (meaning films "
"other than Hollywood movies, films that were never copyrighted), Kahle "
"established the Movie Archive. Prelinger let Kahle digitize 1,300 films in "
"this archive and post those films on the Internet to be downloaded for "
"free. Prelinger's is a for-profit company. It sells copies of these films as "
"stock footage. What he has discovered is that after he made a significant "
"chunk available for free, his stock footage sales went up "
"dramatically. People could easily find the material they wanted to use. Some "
"downloaded that material and made films on their own. Others purchased "
"copies to enable other films to be made.  Either way, the archive enabled "
"access to this important part of our culture.  Want to see a copy of the "
"\"Duck and Cover\" film that instructed children how to save themselves in "
"the middle of nuclear attack? Go to archive.org, and you can download the "
"film in a few minutes&mdash;for free.  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5652
msgid ""
"Here again, Kahle is providing access to a part of our culture that we "
"otherwise could not get easily, if at all. It is yet another part of what "
"defines the twentieth century that we have lost to history. The law doesn't "
"require these copies to be kept by anyone, or to be deposited in an archive "
"by anyone. Therefore, there is no simple way to find them."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5660
msgid ""
"The key here is access, not price. Kahle wants to enable free access to this "
"content, but he also wants to enable others to sell access to it. His aim is "
"to ensure competition in access to this important part of our culture.  Not "
"during the commercial life of a bit of creative property, but during a "
"second life that all creative property has&mdash;a noncommercial life."
msgstr ""

#.  PAGE BREAK 124 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5668
msgid ""
"For here is an idea that we should more clearly recognize. Every bit of "
"creative property goes through different \"lives.\" In its first life, if "
"the creator is lucky, the content is sold. In such cases the commercial "
"market is successful for the creator. The vast majority of creative property "
"doesn't enjoy such success, but some clearly does. For that content, "
"commercial life is extremely important. Without this commercial market, "
"there would be, many argue, much less creativity."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5680
msgid ""
"After the commercial life of creative property has ended, our tradition has "
"always supported a second life as well. A newspaper delivers the news every "
"day to the doorsteps of America. The very next day, it is used to wrap fish "
"or to fill boxes with fragile gifts or to build an archive of knowledge "
"about our history. In this second life, the content can continue to inform "
"even if that information is no longer sold."
msgstr ""

#.  f3 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:5692
msgid ""
"Dave Barns, \"Fledgling Career in Antique Books: Woodstock Landlord, Bar "
"Owner Starts a New Chapter by Adopting Business,\" <citetitle>Chicago "
"Tribune</citetitle>, 5 September 1997, at Metro Lake 1L. Of books published "
"between 1927 and 1946, only 2.2 percent were in print in 2002. R. Anthony "
"Reese, \"The First Sale Doctrine in the Era of Digital Networks,\" "
"<citetitle>Boston College Law Review</citetitle> 44 (2003): 593 n. 51."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5689
msgid ""
"The same has always been true about books. A book goes out of print very "
"quickly (the average today is after about a year<placeholder "
"type=\"footnote\" id=\"0\"/>). After it is out of print, it can be sold in "
"used book stores without the copyright owner getting anything and stored in "
"libraries, where many get to read the book, also for free. Used book stores "
"and libraries are thus the second life of a book. That second life is "
"extremely important to the spread and stability of culture."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5706
msgid ""
"Yet increasingly, any assumption about a stable second life for creative "
"property does not hold true with the most important components of popular "
"culture in the twentieth and twenty-first centuries. For "
"these&mdash;television, movies, music, radio, the Internet&mdash;there is no "
"guarantee of a second life. For these sorts of culture, it is as if we've "
"replaced libraries with Barnes &amp; Noble superstores. With this culture, "
"what's accessible is nothing but what a certain limited market demands.  "
"Beyond that, culture disappears."
msgstr ""

#.  PAGE BREAK 125 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5717
msgid ""
"For most of the twentieth century, it was economics that made this so. It "
"would have been insanely expensive to collect and make accessible all "
"television and film and music: The cost of analog copies is extraordinarily "
"high. So even though the law in principle would have restricted the ability "
"of a Brewster Kahle to copy culture generally, the real restriction was "
"economics. The market made it impossibly difficult to do anything about this "
"ephemeral culture; the law had little practical effect."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5729
msgid ""
"Perhaps the single most important feature of the digital revolution is that "
"for the first time since the Library of Alexandria, it is feasible to "
"imagine constructing archives that hold all culture produced or distributed "
"publicly. Technology makes it possible to imagine an archive of all books "
"published, and increasingly makes it possible to imagine an archive of all "
"moving images and sound."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5737
msgid ""
"The scale of this potential archive is something we've never imagined "
"before. The Brewster Kahles of our history have dreamed about it; but we are "
"for the first time at a point where that dream is possible. As Kahle "
"describes,"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:5744
msgid ""
"It looks like there's about two to three million recordings of music.  "
"Ever. There are about a hundred thousand theatrical releases of movies, "
"&hellip; and about one to two million movies [distributed] during the "
"twentieth century. There are about twenty-six million different titles of "
"books. All of these would fit on computers that would fit in this room and "
"be able to be afforded by a small company.  So we're at a turning point in "
"our history. Universal access is the goal. And the opportunity of leading a "
"different life, based on this, is &hellip; thrilling. It could be one of the "
"things humankind would be most proud of. Up there with the Library of "
"Alexandria, putting a man on the moon, and the invention of the printing "
"press."
msgstr ""

#.  PAGE BREAK 126 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5758
msgid ""
"Kahle is not the only librarian. The Internet Archive is not the only "
"archive. But Kahle and the Internet Archive suggest what the future of "
"libraries or archives could be. <emphasis>When</emphasis> the commercial "
"life of creative property ends, I don't know. But it does. And whenever it "
"does, Kahle and his archive hint at a world where this knowledge, and "
"culture, remains perpetually available. Some will draw upon it to understand "
"it; some to criticize it. Some will use it, as Walt Disney did, to re-create "
"the past for the future. These technologies promise something that had "
"become unimaginable for much of our past&mdash;a future "
"<emphasis>for</emphasis> our past. The technology of digital arts could make "
"the dream of the Library of Alexandria real again."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5773
msgid ""
"Technologists have thus removed the economic costs of building such an "
"archive. But lawyers' costs remain. For as much as we might like to call "
"these \"archives,\" as warm as the idea of a \"library\" might seem, the "
"\"content\" that is collected in these digital spaces is also someone's "
"\"property.\" And the law of property restricts the freedoms that Kahle and "
"others would exercise."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:5783
msgid "CHAPTER TEN: \"Property\""
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:5792
msgid "Johnson, Lyndon"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:5793 freeculture.xml:9445
msgid "Kennedy, John F."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5785
msgid ""
"Jack Valenti has been the president of the Motion Picture Association of "
"America since 1966. He first came to Washington, D.C., with Lyndon Johnson's "
"administration&mdash;literally. The famous picture of Johnson's swearing-in "
"on Air Force One after the assassination of President Kennedy has Valenti in "
"the background. In his almost forty years of running the MPAA, Valenti has "
"established himself as perhaps the most prominent and effective lobbyist in "
"Washington.  <placeholder type=\"indexterm\" id=\"0\"/> <placeholder "
"type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:5806
msgid "Disney, Inc."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:5807
msgid "Sony Pictures Entertainment"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:5808
msgid "MGM"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:5809
msgid "Paramount Pictures"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:5810
msgid "Twentieth Century Fox"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:5811
msgid "Universal Pictures"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:5812 freeculture.xml:7202
msgid "Warner Brothers"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5796
msgid ""
"The MPAA is the American branch of the international Motion Picture "
"Association. It was formed in 1922 as a trade association whose goal was to "
"defend American movies against increasing domestic criticism.  The "
"organization now represents not only filmmakers but producers and "
"distributors of entertainment for television, video, and cable. Its board is "
"made up of the chairmen and presidents of the seven major producers and "
"distributors of motion picture and television programs in the United States: "
"Walt Disney, Sony Pictures Entertainment, MGM, Paramount Pictures, Twentieth "
"Century Fox, Universal Studios, and Warner Brothers.  <placeholder "
"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> "
"<placeholder type=\"indexterm\" id=\"2\"/> <placeholder type=\"indexterm\" "
"id=\"3\"/> <placeholder type=\"indexterm\" id=\"4\"/> <placeholder "
"type=\"indexterm\" id=\"5\"/> <placeholder type=\"indexterm\" id=\"6\"/>"
msgstr ""

#.  PAGE BREAK 128 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5816
msgid ""
"Valenti is only the third president of the MPAA. No president before him has "
"had as much influence over that organization, or over Washington. As a "
"Texan, Valenti has mastered the single most important political skill of a "
"Southerner&mdash;the ability to appear simple and slow while hiding a "
"lightning-fast intellect. To this day, Valenti plays the simple, humble "
"man. But this Harvard MBA, and author of four books, who finished high "
"school at the age of fifteen and flew more than fifty combat missions in "
"World War II, is no Mr. Smith. When Valenti went to Washington, he mastered "
"the city in a quintessentially Washingtonian way."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5828
msgid ""
"In defending artistic liberty and the freedom of speech that our culture "
"depends upon, the MPAA has done important good. In crafting the MPAA rating "
"system, it has probably avoided a great deal of speech-regulating harm. But "
"there is an aspect to the organization's mission that is both the most "
"radical and the most important. This is the organization's effort, "
"epitomized in Valenti's every act, to redefine the meaning of \"creative "
"property.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5837
msgid "In 1982, Valenti's testimony to Congress captured the strategy perfectly:"
msgstr ""

#.  f1 
#. type: Content of: <book><part><chapter><blockquote><para><footnote><para>
#: freeculture.xml:5851
msgid ""
"Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R.  4794, "
"H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the Subcommittee on "
"Courts, Civil Liberties, and the Administration of Justice of the Committee "
"on the Judiciary of the House of Representatives, 97th Cong., 2nd "
"sess. (1982): 65 (testimony of Jack Valenti)."
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:5842
msgid ""
"No matter the lengthy arguments made, no matter the charges and the "
"counter-charges, no matter the tumult and the shouting, reasonable men and "
"women will keep returning to the fundamental issue, the central theme which "
"animates this entire debate: <emphasis>Creative property owners must be "
"accorded the same rights and protection resident in all other property "
"owners in the nation</emphasis>. That is the issue.  That is the "
"question. And that is the rostrum on which this entire hearing and the "
"debates to follow must rest.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 129 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5861
msgid ""
"The strategy of this rhetoric, like the strategy of most of Valenti's "
"rhetoric, is brilliant and simple and brilliant because simple. The "
"\"central theme\" to which \"reasonable men and women\" will return is this: "
"\"Creative property owners must be accorded the same rights and protections "
"resident in all other property owners in the nation.\" There are no "
"second-class citizens, Valenti might have continued. There should be no "
"second-class property owners."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5872
msgid ""
"This claim has an obvious and powerful intuitive pull. It is stated with "
"such clarity as to make the idea as obvious as the notion that we use "
"elections to pick presidents. But in fact, there is no more extreme a claim "
"made by <emphasis>anyone</emphasis> who is serious in this debate than this "
"claim of Valenti's. Jack Valenti, however sweet and however brilliant, is "
"perhaps the nation's foremost extremist when it comes to the nature and "
"scope of \"creative property.\" His views have <emphasis>no</emphasis> "
"reasonable connection to our actual legal tradition, even if the subtle pull "
"of his Texan charm has slowly redefined that tradition, at least in "
"Washington."
msgstr ""

#.  f2 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:5887
msgid ""
"Lawyers speak of \"property\" not as an absolute thing, but as a bundle of "
"rights that are sometimes associated with a particular object. Thus, my "
"\"property right\" to my car gives me the right to exclusive use, but not "
"the right to drive at 150 miles an hour. For the best effort to connect the "
"ordinary meaning of \"property\" to \"lawyer talk,\" see Bruce Ackerman, "
"<citetitle>Private Property and the Constitution</citetitle> (New Haven: "
"Yale University Press, 1977), 26&ndash;27."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5884
msgid ""
"While \"creative property\" is certainly \"property\" in a nerdy and precise "
"sense that lawyers are trained to understand,<placeholder type=\"footnote\" "
"id=\"0\"/> it has never been the case, nor should it be, that \"creative "
"property owners\" have been \"accorded the same rights and protection "
"resident in all other property owners.\" Indeed, if creative property owners "
"were given the same rights as all other property owners, that would effect a "
"radical, and radically undesirable, change in our tradition."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5902
msgid ""
"Valenti knows this. But he speaks for an industry that cares squat for our "
"tradition and the values it represents. He speaks for an industry that is "
"instead fighting to restore the tradition that the British overturned in "
"1710. In the world that Valenti's changes would create, a powerful few would "
"exercise powerful control over how our creative culture would develop."
msgstr ""

#.  PAGE BREAK 130 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5910
msgid ""
"I have two purposes in this chapter. The first is to convince you that, "
"historically, Valenti's claim is absolutely wrong. The second is to convince "
"you that it would be terribly wrong for us to reject our history.  We have "
"always treated rights in creative property differently from the rights "
"resident in all other property owners. They have never been the same. And "
"they should never be the same, because, however counterintuitive this may "
"seem, to make them the same would be to fundamentally weaken the opportunity "
"for new creators to create.  Creativity depends upon the owners of "
"creativity having less than perfect control."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5925
msgid ""
"Organizations such as the MPAA, whose board includes the most powerful of "
"the old guard, have little interest, their rhetoric notwithstanding, in "
"assuring that the new can displace them. No organization does. No person "
"does. (Ask me about tenure, for example.)  But what's good for the MPAA is "
"not necessarily good for America. A society that defends the ideals of free "
"culture must preserve precisely the opportunity for new creativity to "
"threaten the old.  To get just a hint that there is something fundamentally "
"wrong in Valenti's argument, we need look no further than the United States "
"Constitution itself."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5937
msgid ""
"The framers of our Constitution loved \"property.\" Indeed, so strongly did "
"they love property that they built into the Constitution an important "
"requirement. If the government takes your property&mdash;if it condemns your "
"house, or acquires a slice of land from your farm&mdash;it is required, "
"under the Fifth Amendment's \"Takings Clause,\" to pay you \"just "
"compensation\" for that taking. The Constitution thus guarantees that "
"property is, in a certain sense, sacred. It cannot <emphasis>ever</emphasis> "
"be taken from the property owner unless the government pays for the "
"privilege."
msgstr ""

#.  PAGE BREAK 131 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5948
msgid ""
"Yet the very same Constitution speaks very differently about what Valenti "
"calls \"creative property.\" In the clause granting Congress the power to "
"create \"creative property,\" the Constitution <emphasis>requires</emphasis> "
"that after a \"limited time,\" Congress take back the rights that it has "
"granted and set the \"creative property\" free to the public domain. Yet "
"when Congress does this, when the expiration of a copyright term \"takes\" "
"your copyright and turns it over to the public domain, Congress does not "
"have any obligation to pay \"just compensation\" for this \"taking.\" "
"Instead, the same Constitution that requires compensation for your land "
"requires that you lose your \"creative property\" right without any "
"compensation at all."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5963
msgid ""
"The Constitution thus on its face states that these two forms of property "
"are not to be accorded the same rights. They are plainly to be treated "
"differently. Valenti is therefore not just asking for a change in our "
"tradition when he argues that creative-property owners should be accorded "
"the same rights as every other property-right owner. He is effectively "
"arguing for a change in our Constitution itself."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5972
msgid ""
"Arguing for a change in our Constitution is not necessarily wrong.  There "
"was much in our original Constitution that was plainly wrong.  The "
"Constitution of 1789 entrenched slavery; it left senators to be appointed "
"rather than elected; it made it possible for the electoral college to "
"produce a tie between the president and his own vice president (as it did in "
"1800). The framers were no doubt extraordinary, but I would be the first to "
"admit that they made big mistakes. We have since rejected some of those "
"mistakes; no doubt there could be others that we should reject as well. So "
"my argument is not simply that because Jefferson did it, we should, too."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5984
msgid ""
"Instead, my argument is that because Jefferson did it, we should at least "
"try to understand <emphasis>why</emphasis>. Why did the framers, fanatical "
"property types that they were, reject the claim that creative property be "
"given the same rights as all other property? Why did they require that for "
"creative property there must be a public domain?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5992
msgid ""
"To answer this question, we need to get some perspective on the history of "
"these \"creative property\" rights, and the control that they enabled.  Once "
"we see clearly how differently these rights have been defined, we will be in "
"a better position to ask the question that should be at the core of this "
"war: Not <emphasis>whether</emphasis> creative property should be protected, "
"but how. Not <emphasis>whether</emphasis> we will enforce the rights the law "
"gives to creative-property owners, but what the particular mix of rights "
"ought to be. Not <emphasis>whether</emphasis> artists should be paid, but "
"whether institutions designed to assure that artists get paid need also "
"control how culture develops."
msgstr ""

#.  PAGE BREAK 132 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6007
msgid ""
"To answer these questions, we need a more general way to talk about how "
"property is protected. More precisely, we need a more general way than the "
"narrow language of the law allows. In <citetitle>Code and Other Laws of "
"Cyberspace</citetitle>, I used a simple model to capture this more general "
"perspective. For any particular right or regulation, this model asks how "
"four different modalities of regulation interact to support or weaken the "
"right or regulation. I represented it with this diagram:"
msgstr ""

#. type: Content of: <book><part><chapter><figure><title>
#: freeculture.xml:6016
msgid ""
"How four different modalities of regulation interact to support or weaken "
"the right or regulation."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:6017 freeculture.xml:6192 freeculture.xml:6494
msgid "<graphic fileref=\"images/1331.png\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6020
msgid ""
"At the center of this picture is a regulated dot: the individual or group "
"that is the target of regulation, or the holder of a right. (In each case "
"throughout, we can describe this either as regulation or as a right.  For "
"simplicity's sake, I will speak only of regulations.)  The ovals represent "
"four ways in which the individual or group might be regulated&mdash; either "
"constrained or, alternatively, enabled. Law is the most obvious constraint "
"(to lawyers, at least). It constrains by threatening punishments after the "
"fact if the rules set in advance are violated. So if, for example, you "
"willfully infringe Madonna's copyright by copying a song from her latest CD "
"and posting it on the Web, you can be punished with a $150,000 fine. The "
"fine is an ex post punishment for violating an ex ante rule. It is imposed "
"by the state.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6037
msgid ""
"Norms are a different kind of constraint. They, too, punish an individual "
"for violating a rule. But the punishment of a norm is imposed by a "
"community, not (or not only) by the state. There may be no law against "
"spitting, but that doesn't mean you won't be punished if you spit on the "
"ground while standing in line at a movie. The punishment might not be harsh, "
"though depending upon the community, it could easily be more harsh than many "
"of the punishments imposed by the state. The mark of the difference is not "
"the severity of the rule, but the source of the enforcement."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6048
msgid ""
"The market is a third type of constraint. Its constraint is effected through "
"conditions: You can do X if you pay Y; you'll be paid M if you do N. These "
"constraints are obviously not independent of law or norms&mdash;it is "
"property law that defines what must be bought if it is to be taken legally; "
"it is norms that say what is appropriately sold. But given a set of norms, "
"and a background of property and contract law, the market imposes a "
"simultaneous constraint upon how an individual or group might behave."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6058
msgid ""
"Finally, and for the moment, perhaps, most mysteriously, "
"\"architecture\"&mdash;the physical world as one finds it&mdash;is a "
"constraint on behavior.  A fallen bridge might constrain your ability to get "
"across a river. Railroad tracks might constrain the ability of a community "
"to integrate its social life. As with the market, architecture does not "
"effect its constraint through ex post punishments. Instead, also as with the "
"market, architecture effects its constraint through simultaneous "
"conditions. These conditions are imposed not by courts enforcing contracts, "
"or by police punishing theft, but by nature, by \"architecture.\" If a "
"500-pound boulder blocks your way, it is the law of gravity that enforces "
"this constraint. If a $500 airplane ticket stands between you and a flight "
"to New York, it is the market that enforces this constraint."
msgstr ""

#.  PAGE BREAK 134 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6075
msgid ""
"So the first point about these four modalities of regulation is obvious: "
"They interact. Restrictions imposed by one might be reinforced by "
"another. Or restrictions imposed by one might be undermined by another."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6081
msgid ""
"The second point follows directly: If we want to understand the effective "
"freedom that anyone has at a given moment to do any particular thing, we "
"have to consider how these four modalities interact.  Whether or not there "
"are other constraints (there may well be; my claim is not about "
"comprehensiveness), these four are among the most significant, and any "
"regulator (whether controlling or freeing)  must consider how these four in "
"particular interact."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:6090
msgid "driving speed, constraints on"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6093
msgid ""
"So, for example, consider the \"freedom\" to drive a car at a high "
"speed. That freedom is in part restricted by laws: speed limits that say how "
"fast you can drive in particular places at particular times. It is in part "
"restricted by architecture: speed bumps, for example, slow most rational "
"drivers; governors in buses, as another example, set the maximum rate at "
"which the driver can drive. The freedom is in part restricted by the market: "
"Fuel efficiency drops as speed increases, thus the price of gasoline "
"indirectly constrains speed. And finally, the norms of a community may or "
"may not constrain the freedom to speed. Drive at 50 mph by a school in your "
"own neighborhood and you're likely to be punished by the neighbors. The same "
"norm wouldn't be as effective in a different town, or at night."
msgstr ""

#.  f3 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:6111
msgid ""
"By describing the way law affects the other three modalities, I don't mean "
"to suggest that the other three don't affect law. Obviously, they do. Law's "
"only distinction is that it alone speaks as if it has a right "
"self-consciously to change the other three. The right of the other three is "
"more timidly expressed.  See Lawrence Lessig, <citetitle>Code: And Other "
"Laws of Cyberspace</citetitle> (New York: Basic Books, 1999): 90&ndash;95; "
"Lawrence Lessig, \"The New Chicago School,\" <citetitle>Journal of Legal "
"Studies</citetitle>, June 1998."
msgstr ""

#.  PAGE BREAK 135 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6107
msgid ""
"The final point about this simple model should also be fairly clear: While "
"these four modalities are analytically independent, law has a special role "
"in affecting the three.<placeholder type=\"footnote\" id=\"0\"/> The law, in "
"other words, sometimes operates to increase or decrease the constraint of a "
"particular modality.  Thus, the law might be used to increase taxes on "
"gasoline, so as to increase the incentives to drive more slowly. The law "
"might be used to mandate more speed bumps, so as to increase the difficulty "
"of driving rapidly. The law might be used to fund ads that stigmatize "
"reckless driving. Or the law might be used to require that other laws be "
"more strict&mdash;a federal requirement that states decrease the speed "
"limit, for example&mdash;so as to decrease the attractiveness of fast "
"driving."
msgstr ""

#. type: Content of: <book><part><chapter><figure><title>
#: freeculture.xml:6135
msgid "Law has a special role in affecting the three."
msgstr ""

#. type: Content of: <book><part><chapter><figure>
#: freeculture.xml:6136
msgid "<graphic fileref=\"images/1361.png\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:6175
msgid "Commons, John R."
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:6147
msgid ""
"Some people object to this way of talking about \"liberty.\" They object "
"because their focus when considering the constraints that exist at any "
"particular moment are constraints imposed exclusively by the government. For "
"instance, if a storm destroys a bridge, these people think it is meaningless "
"to say that one's liberty has been restrained. A bridge has washed out, and "
"it's harder to get from one place to another. To talk about this as a loss "
"of freedom, they say, is to confuse the stuff of politics with the vagaries "
"of ordinary life.  I don't mean to deny the value in this narrower view, "
"which depends upon the context of the inquiry. I do, however, mean to argue "
"against any insistence that this narrower view is the only proper view of "
"liberty. As I argued in <citetitle>Code</citetitle>, we come from a long "
"tradition of political thought with a broader focus than the narrow question "
"of what the government did when.  John Stuart Mill defended freedom of "
"speech, for example, from the tyranny of narrow minds, not from the fear of "
"government prosecution; John Stuart Mill, <citetitle>On Liberty</citetitle> "
"(Indiana: Hackett Publishing Co., 1978), 19.  John R. Commons famously "
"defended the economic freedom of labor from constraints imposed by the "
"market; John R. Commons, \"The Right to Work,\" in Malcom Rutherford and "
"Warren J. Samuels, eds., <citetitle>John R. Commons: Selected "
"Essays</citetitle> (London: Routledge: 1997), 62. The Americans with "
"Disabilities Act increases the liberty of people with physical disabilities "
"by changing the architecture of certain public places, thereby making access "
"to those places easier; 42 <citetitle>United States Code</citetitle>, "
"section 12101 (2000).  Each of these interventions to change existing "
"conditions changes the liberty of a particular group. The effect of those "
"interventions should be accounted for in order to understand the effective "
"liberty that each of these groups might face.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6139
msgid ""
"These constraints can thus change, and they can be changed. To understand "
"the effective protection of liberty or protection of property at any "
"particular moment, we must track these changes over time. A restriction "
"imposed by one modality might be erased by another. A freedom enabled by one "
"modality might be displaced by another.<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:6179
msgid "Why Hollywood Is Right"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6181
msgid ""
"The most obvious point that this model reveals is just why, or just how, "
"Hollywood is right. The copyright warriors have rallied Congress and the "
"courts to defend copyright. This model helps us see why that rallying makes "
"sense."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6187
msgid "Let's say this is the picture of copyright's regulation before the Internet:"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:6191 freeculture.xml:6493
msgid "Copyright's regulation before the Internet."
msgstr ""

#.  PAGE BREAK 136 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6196
msgid ""
"There is balance between law, norms, market, and architecture. The law "
"limits the ability to copy and share content, by imposing penalties on those "
"who copy and share content. Those penalties are reinforced by technologies "
"that make it hard to copy and share content (architecture) and expensive to "
"copy and share content (market). Finally, those penalties are mitigated by "
"norms we all recognize&mdash;kids, for example, taping other kids' "
"records. These uses of copyrighted material may well be infringement, but "
"the norms of our society (before the Internet, at least) had no problem with "
"this form of infringement."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6208
msgid ""
"Enter the Internet, or, more precisely, technologies such as MP3s and p2p "
"sharing. Now the constraint of architecture changes dramatically, as does "
"the constraint of the market. And as both the market and architecture relax "
"the regulation of copyright, norms pile on. The happy balance (for the "
"warriors, at least) of life before the Internet becomes an effective state "
"of anarchy after the Internet."
msgstr ""

#.  PAGE BREAK 137 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6216
msgid ""
"Thus the sense of, and justification for, the warriors' response.  "
"Technology has changed, the warriors say, and the effect of this change, "
"when ramified through the market and norms, is that a balance of protection "
"for the copyright owners' rights has been lost. This is Iraq after the fall "
"of Saddam, but this time no government is justifying the looting that "
"results."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:6226
msgid "effective state of anarchy after the Internet."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:6227
msgid "<graphic fileref=\"images/1381.png\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6230
msgid ""
"Neither this analysis nor the conclusions that follow are new to the "
"warriors. Indeed, in a \"White Paper\" prepared by the Commerce Department "
"(one heavily influenced by the copyright warriors) in 1995, this mix of "
"regulatory modalities had already been identified and the strategy to "
"respond already mapped. In response to the changes the Internet had "
"effected, the White Paper argued (1) Congress should strengthen intellectual "
"property law, (2) businesses should adopt innovative marketing techniques, "
"(3) technologists should push to develop code to protect copyrighted "
"material, and (4) educators should educate kids to better protect copyright."
msgstr ""

#.  PAGE BREAK 138 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6242
msgid ""
"This mixed strategy is just what copyright needed&mdash;if it was to "
"preserve the particular balance that existed before the change induced by "
"the Internet. And it's just what we should expect the content industry to "
"push for. It is as American as apple pie to consider the happy life you have "
"as an entitlement, and to look to the law to protect it if something comes "
"along to change that happy life. Homeowners living in a flood plain have no "
"hesitation appealing to the government to rebuild (and rebuild again) when a "
"flood (architecture) wipes away their property (law). Farmers have no "
"hesitation appealing to the government to bail them out when a virus "
"(architecture) devastates their crop. Unions have no hesitation appealing to "
"the government to bail them out when imports (market) wipe out the "
"U.S. steel industry."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6259
msgid ""
"Thus, there's nothing wrong or surprising in the content industry's campaign "
"to protect itself from the harmful consequences of a technological "
"innovation. And I would be the last person to argue that the changing "
"technology of the Internet has not had a profound effect on the content "
"industry's way of doing business, or as John Seely Brown describes it, its "
"\"architecture of revenue.\""
msgstr ""

#.  f5 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:6275
msgid ""
"See Geoffrey Smith, \"Film vs. Digital: Can Kodak Build a Bridge?\" "
"BusinessWeek online, 2 August 1999, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #23</ulink>. For a more recent "
"analysis of Kodak's place in the market, see Chana R. Schoenberger, \"Can "
"Kodak Make Up for Lost Moments?\" Forbes.com, 6 October 2003, available at "
"<ulink url=\"http://free-culture.cc/notes/\">link #24</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6267
msgid ""
"But just because a particular interest asks for government support, it "
"doesn't follow that support should be granted. And just because technology "
"has weakened a particular way of doing business, it doesn't follow that the "
"government should intervene to support that old way of doing "
"business. Kodak, for example, has lost perhaps as much as 20 percent of "
"their traditional film market to the emerging technologies of digital "
"cameras.<placeholder type=\"footnote\" id=\"0\"/> Does anyone believe the "
"government should ban digital cameras just to support Kodak? Highways have "
"weakened the freight business for railroads. Does anyone think we should ban "
"trucks from roads <emphasis>for the purpose of</emphasis> protecting the "
"railroads? Closer to the subject of this book, remote channel changers have "
"weakened the \"stickiness\" of television advertising (if a boring "
"commercial comes on the TV, the remote makes it easy to surf ), and it may "
"well be that this change has weakened the television advertising market. But "
"does anyone believe we should regulate remotes to reinforce commercial "
"television? (Maybe by limiting them to function only once a second, or to "
"switch to only ten channels within an hour?)"
msgstr ""

#.  f6 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:6307
msgid ""
"Fred Warshofsky, <citetitle>The Patent Wars</citetitle> (New York: Wiley, "
"1994), 170&ndash;71."
msgstr ""

#. type: Content of: <book><chapter><para><indexterm><primary>
#: freeculture.xml:6316 freeculture.xml:12728
msgid "Gates, Bill"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6297
msgid ""
"The obvious answer to these obviously rhetorical questions is no.  In a free "
"society, with a free market, supported by free enterprise and free trade, "
"the government's role is not to support one way of doing business against "
"others. Its role is not to pick winners and protect them against loss. If "
"the government did this generally, then we would never have any progress. As "
"Microsoft chairman Bill Gates wrote in 1991, in a memo criticizing software "
"patents, \"established companies have an interest in excluding future "
"competitors.\"<placeholder type=\"footnote\" id=\"0\"/> And relative to a "
"startup, established companies also have the means. (Think RCA and FM "
"radio.) A world in which competitors with new ideas must fight not only the "
"market but also the government is a world in which competitors with new "
"ideas will not succeed. It is a world of stasis and increasingly "
"concentrated stagnation. It is the Soviet Union under Brezhnev.  "
"<placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6319
msgid ""
"Thus, while it is understandable for industries threatened with new "
"technologies that change the way they do business to look to the government "
"for protection, it is the special duty of policy makers to guarantee that "
"that protection not become a deterrent to progress. It is the duty of policy "
"makers, in other words, to assure that the changes they create, in response "
"to the request of those hurt by changing technology, are changes that "
"preserve the incentives and opportunities for innovation and change."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6329
msgid ""
"In the context of laws regulating speech&mdash;which include, obviously, "
"copyright law&mdash;that duty is even stronger. When the industry "
"complaining about changing technologies is asking Congress to respond in a "
"way that burdens speech and creativity, policy makers should be especially "
"wary of the request. It is always a bad deal for the government to get into "
"the business of regulating speech markets. The risks and dangers of that "
"game are precisely why our framers created the First Amendment to our "
"Constitution: \"Congress shall make no law &hellip; abridging the freedom of "
"speech.\" So when Congress is being asked to pass laws that would "
"\"abridge\" the freedom of speech, it should ask&mdash; "
"carefully&mdash;whether such regulation is justified."
msgstr ""

#.  PAGE BREAK 140 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6343
msgid ""
"My argument just now, however, has nothing to do with whether the changes "
"that are being pushed by the copyright warriors are \"justified.\" My "
"argument is about their effect. For before we get to the question of "
"justification, a hard question that depends a great deal upon your values, "
"we should first ask whether we understand the effect of the changes the "
"content industry wants."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6352
msgid "Here's the metaphor that will capture the argument to follow."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6355
msgid "DDT"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:6363
msgid "Müller, Paul Hermann"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6358
msgid ""
"In 1873, the chemical DDT was first synthesized. In 1948, Swiss chemist Paul "
"Hermann Müller won the Nobel Prize for his work demonstrating the "
"insecticidal properties of DDT. By the 1950s, the insecticide was widely "
"used around the world to kill disease-carrying pests. It was also used to "
"increase farm production.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6366
msgid ""
"No one doubts that killing disease-carrying pests or increasing crop "
"production is a good thing. No one doubts that the work of Müller was "
"important and valuable and probably saved lives, possibly millions."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:6370 freeculture.xml:6376
msgid "Carson, Rachel"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:6377
msgid "Silent Sprint (Carson)"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6372
msgid ""
"But in 1962, Rachel Carson published <citetitle>Silent Spring</citetitle>, "
"which argued that DDT, whatever its primary benefits, was also having "
"unintended environmental consequences. Birds were losing the ability to "
"reproduce.  Whole chains of the ecology were being destroyed.  <placeholder "
"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6380
msgid ""
"No one set out to destroy the environment. Paul Müller certainly did not aim "
"to harm any birds. But the effort to solve one set of problems produced "
"another set which, in the view of some, was far worse than the problems that "
"were originally attacked. Or more accurately, the problems DDT caused were "
"worse than the problems it solved, at least when considering the other, more "
"environmentally friendly ways to solve the problems that DDT was meant to "
"solve."
msgstr ""

#.  f7 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:6393
msgid ""
"See, for example, James Boyle, \"A Politics of Intellectual Property: "
"Environmentalism for the Net?\" <citetitle>Duke Law Journal</citetitle> 47 "
"(1997): 87."
msgstr ""

#.  PAGE BREAK 141 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6389
msgid ""
"It is to this image precisely that Duke University law professor James Boyle "
"appeals when he argues that we need an \"environmentalism\" for "
"culture.<placeholder type=\"footnote\" id=\"0\"/> His point, and the point I "
"want to develop in the balance of this chapter, is not that the aims of "
"copyright are flawed. Or that authors should not be paid for their work. Or "
"that music should be given away \"for free.\" The point is that some of the "
"ways in which we might protect authors will have unintended consequences for "
"the cultural environment, much like DDT had for the natural environment. And "
"just as criticism of DDT is not an endorsement of malaria or an attack on "
"farmers, so, too, is criticism of one particular set of regulations "
"protecting copyright not an endorsement of anarchy or an attack on authors.  "
"It is an environment of creativity that we seek, and we should be aware of "
"our actions' effects on the environment."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6410
msgid ""
"My argument, in the balance of this chapter, tries to map exactly this "
"effect. No doubt the technology of the Internet has had a dramatic effect on "
"the ability of copyright owners to protect their content. But there should "
"also be little doubt that when you add together the changes in copyright law "
"over time, plus the change in technology that the Internet is undergoing "
"just now, the net effect of these changes will not be only that copyrighted "
"work is effectively protected. Also, and generally missed, the net effect of "
"this massive increase in protection will be devastating to the environment "
"for creativity."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6421
msgid ""
"In a line: To kill a gnat, we are spraying DDT with consequences for free "
"culture that will be far more devastating than that this gnat will be lost."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:6428
msgid "Beginnings"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6430
msgid ""
"America copied English copyright law. Actually, we copied and improved "
"English copyright law. Our Constitution makes the purpose of \"creative "
"property\" rights clear; its express limitations reinforce the English aim "
"to avoid overly powerful publishers."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6436
msgid ""
"The power to establish \"creative property\" rights is granted to Congress "
"in a way that, for our Constitution, at least, is very odd. Article I, "
"section 8, clause 8 of our Constitution states that:"
msgstr ""

#.  PAGE BREAK 142 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6441
msgid ""
"Congress has the power to promote the Progress of Science and useful Arts, "
"by securing for limited Times to Authors and Inventors the exclusive Right "
"to their respective Writings and Discoveries.  We can call this the "
"\"Progress Clause,\" for notice what this clause does not say. It does not "
"say Congress has the power to grant \"creative property rights.\" It says "
"that Congress has the power <emphasis>to promote progress</emphasis>. The "
"grant of power is its purpose, and its purpose is a public one, not the "
"purpose of enriching publishers, nor even primarily the purpose of rewarding "
"authors."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6454
msgid ""
"The Progress Clause expressly limits the term of copyrights. As we saw in "
"chapter <xref xrefstyle=\"select: labelnumber\" linkend=\"founders\"/>, the "
"English limited the term of copyright so as to assure that a few would not "
"exercise disproportionate control over culture by exercising "
"disproportionate control over publishing. We can assume the framers followed "
"the English for a similar purpose. Indeed, unlike the English, the framers "
"reinforced that objective, by requiring that copyrights extend \"to "
"Authors\" only."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6464
msgid ""
"The design of the Progress Clause reflects something about the "
"Constitution's design in general. To avoid a problem, the framers built "
"structure. To prevent the concentrated power of publishers, they built a "
"structure that kept copyrights away from publishers and kept them short. To "
"prevent the concentrated power of a church, they banned the federal "
"government from establishing a church. To prevent concentrating power in the "
"federal government, they built structures to reinforce the power of the "
"states&mdash;including the Senate, whose members were at the time selected "
"by the states, and an electoral college, also selected by the states, to "
"select the president. In each case, a <emphasis>structure</emphasis> built "
"checks and balances into the constitutional frame, structured to prevent "
"otherwise inevitable concentrations of power."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6479
msgid ""
"I doubt the framers would recognize the regulation we call \"copyright\" "
"today. The scope of that regulation is far beyond anything they ever "
"considered. To begin to understand what they did, we need to put our "
"\"copyright\" in context: We need to see how it has changed in the 210 years "
"since they first struck its design."
msgstr ""

#.  PAGE BREAK 143 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6486
msgid ""
"Some of these changes come from the law: some in light of changes in "
"technology, and some in light of changes in technology given a particular "
"concentration of market power. In terms of our model, we started here:"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6497
msgid "We will end here:"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:6500
msgid "&quot;Copyright&quot; today."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:6501
msgid "<graphic fileref=\"images/1442.png\"></graphic>"
msgstr ""

#.  PAGE BREAK 144 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6504
msgid "Let me explain how."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:6509
msgid "Law: Duration"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:6525
msgid "Crosskey, William W."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:6519
msgid ""
"William W. Crosskey, <citetitle>Politics and the Constitution in the History "
"of the United States</citetitle> (London: Cambridge University Press, 1953), "
"vol. 1, 485&ndash;86: \"extinguish[ing], by plain implication of `the "
"supreme Law of the Land,' <emphasis>the perpetual rights which authors had, "
"or were supposed by some to have, under the Common Law</emphasis>\" "
"(emphasis added).  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6511
msgid ""
"When the first Congress enacted laws to protect creative property, it faced "
"the same uncertainty about the status of creative property that the English "
"had confronted in 1774. Many states had passed laws protecting creative "
"property, and some believed that these laws simply supplemented common law "
"rights that already protected creative authorship.<placeholder "
"type=\"footnote\" id=\"0\"/> This meant that there was no guaranteed public "
"domain in the United States in 1790. If copyrights were protected by the "
"common law, then there was no simple way to know whether a work published in "
"the United States was controlled or free. Just as in England, this lingering "
"uncertainty would make it hard for publishers to rely upon a public domain "
"to reprint and distribute works."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6535
msgid ""
"That uncertainty ended after Congress passed legislation granting "
"copyrights. Because federal law overrides any contrary state law, federal "
"protections for copyrighted works displaced any state law protections.  Just "
"as in England the Statute of Anne eventually meant that the copyrights for "
"all English works expired, a federal statute meant that any state copyrights "
"expired as well."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6543
msgid ""
"In 1790, Congress enacted the first copyright law. It created a federal "
"copyright and secured that copyright for fourteen years. If the author was "
"alive at the end of that fourteen years, then he could opt to renew the "
"copyright for another fourteen years. If he did not renew the copyright, his "
"work passed into the public domain."
msgstr ""

#.  f9 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:6558
msgid ""
"Although 13,000 titles were published in the United States from 1790 to "
"1799, only 556 copyright registrations were filed; John Tebbel, <citetitle>A "
"History of Book Publishing in the United States</citetitle>, vol. 1, "
"<citetitle>The Creation of an Industry, 1630&ndash;1865</citetitle> (New "
"York: Bowker, 1972), 141. Of the 21,000 imprints recorded before 1790, only "
"twelve were copyrighted under the 1790 act; William J. Maher, "
"<citetitle>Copyright Term, Retrospective Extension and the Copyright Law of "
"1790 in Historical Context</citetitle>, 7&ndash;10 (2002), available at "
"<ulink url=\"http://free-culture.cc/notes/\">link #25</ulink>.  Thus, the "
"overwhelming majority of works fell immediately into the public domain. Even "
"those works that were copyrighted fell into the public domain quickly, "
"because the term of copyright was short. The initial term of copyright was "
"fourteen years, with the option of renewal for an additional fourteen "
"years. Copyright Act of May 31, 1790, §1, 1 stat. 124."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6550
msgid ""
"While there were many works created in the United States in the first ten "
"years of the Republic, only 5 percent of the works were actually registered "
"under the federal copyright regime. Of all the work created in the United "
"States both before 1790 and from 1790 through 1800, 95 percent immediately "
"passed into the public domain; the balance would pass into the pubic domain "
"within twenty-eight years at most, and more likely within fourteen "
"years.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 145 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6574
msgid ""
"This system of renewal was a crucial part of the American system of "
"copyright. It assured that the maximum terms of copyright would be granted "
"only for works where they were wanted. After the initial term of fourteen "
"years, if it wasn't worth it to an author to renew his copyright, then it "
"wasn't worth it to society to insist on the copyright, either."
msgstr ""

#.  f10 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:6589
msgid ""
"Few copyright holders ever chose to renew their copyrights. For instance, of "
"the 25,006 copyrights registered in 1883, only 894 were renewed in 1910. For "
"a year-by-year analysis of copyright renewal rates, see Barbara A. Ringer, "
"\"Study No. 31: Renewal of Copyright,\" <citetitle>Studies on "
"Copyright</citetitle>, vol. 1 (New York: Practicing Law Institute, 1963), "
"618. For a more recent and comprehensive analysis, see William M. Landes and "
"Richard A.  Posner, \"Indefinitely Renewable Copyright,\" "
"<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 471, "
"498&ndash;501, and accompanying figures."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6583
msgid ""
"Fourteen years may not seem long to us, but for the vast majority of "
"copyright owners at that time, it was long enough: Only a small minority of "
"them renewed their copyright after fourteen years; the balance allowed their "
"work to pass into the public domain.<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#.  f11 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:6604
msgid "See Ringer, ch. 9, n. 2."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6600
msgid ""
"Even today, this structure would make sense. Most creative work has an "
"actual commercial life of just a couple of years. Most books fall out of "
"print after one year.<placeholder type=\"footnote\" id=\"0\"/> When that "
"happens, the used books are traded free of copyright regulation. Thus the "
"books are no longer <emphasis>effectively</emphasis> controlled by "
"copyright. The only practical commercial use of the books at that time is to "
"sell the books as used books; that use&mdash;because it does not involve "
"publication&mdash;is effectively free."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6612
msgid ""
"In the first hundred years of the Republic, the term of copyright was "
"changed once. In 1831, the term was increased from a maximum of 28 years to "
"a maximum of 42 by increasing the initial term of copyright from 14 years to "
"28 years. In the next fifty years of the Republic, the term increased once "
"again. In 1909, Congress extended the renewal term of 14 years to 28 years, "
"setting a maximum term of 56 years."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6620
msgid ""
"Then, beginning in 1962, Congress started a practice that has defined "
"copyright law since. Eleven times in the last forty years, Congress has "
"extended the terms of existing copyrights; twice in those forty years, "
"Congress extended the term of future copyrights. Initially, the extensions "
"of existing copyrights were short, a mere one to two years.  In 1976, "
"Congress extended all existing copyrights by nineteen years.  And in 1998, "
"in the Sonny Bono Copyright Term Extension Act, Congress extended the term "
"of existing and future copyrights by twenty years."
msgstr ""

#.  PAGE BREAK 146 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6630
msgid ""
"The effect of these extensions is simply to toll, or delay, the passing of "
"works into the public domain. This latest extension means that the public "
"domain will have been tolled for thirty-nine out of fifty-five years, or 70 "
"percent of the time since 1962. Thus, in the twenty years after the Sonny "
"Bono Act, while one million patents will pass into the public domain, zero "
"copyrights will pass into the public domain by virtue of the expiration of a "
"copyright term."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6641
msgid ""
"The effect of these extensions has been exacerbated by another, "
"little-noticed change in the copyright law. Remember I said that the framers "
"established a two-part copyright regime, requiring a copyright owner to "
"renew his copyright after an initial term. The requirement of renewal meant "
"that works that no longer needed copyright protection would pass more "
"quickly into the public domain. The works remaining under protection would "
"be those that had some continuing commercial value."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6651
msgid ""
"The United States abandoned this sensible system in 1976. For all works "
"created after 1978, there was only one copyright term&mdash;the maximum "
"term. For \"natural\" authors, that term was life plus fifty years. For "
"corporations, the term was seventy-five years. Then, in 1992, Congress "
"abandoned the renewal requirement for all works created before 1978. All "
"works still under copyright would be accorded the maximum term then "
"available. After the Sonny Bono Act, that term was ninety-five years."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6661
msgid ""
"This change meant that American law no longer had an automatic way to assure "
"that works that were no longer exploited passed into the public domain. And "
"indeed, after these changes, it is unclear whether it is even possible to "
"put works into the public domain. The public domain is orphaned by these "
"changes in copyright law. Despite the requirement that terms be \"limited,\" "
"we have no evidence that anything will limit them."
msgstr ""

#.  f12 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:6678
msgid ""
"These statistics are understated. Between the years 1910 and 1962 (the first "
"year the renewal term was extended), the average term was never more than "
"thirty-two years, and averaged thirty years. See Landes and Posner, "
"\"Indefinitely Renewable Copyright,\" loc. cit."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6670
msgid ""
"The effect of these changes on the average duration of copyright is "
"dramatic. In 1973, more than 85 percent of copyright owners failed to renew "
"their copyright. That meant that the average term of copyright in 1973 was "
"just 32.2 years. Because of the elimination of the renewal requirement, the "
"average term of copyright is now the maximum term.  In thirty years, then, "
"the average term has tripled, from 32.2 years to 95 years.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:6687
msgid "Law: Scope"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6689
msgid ""
"The \"scope\" of a copyright is the range of rights granted by the law.  The "
"scope of American copyright has changed dramatically. Those changes are not "
"necessarily bad. But we should understand the extent of the changes if we're "
"to keep this debate in context."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6695
msgid ""
"In 1790, that scope was very narrow. Copyright covered only \"maps, charts, "
"and books.\" That means it didn't cover, for example, music or "
"architecture. More significantly, the right granted by a copyright gave the "
"author the exclusive right to \"publish\" copyrighted works. That means "
"someone else violated the copyright only if he republished the work without "
"the copyright owner's permission. Finally, the right granted by a copyright "
"was an exclusive right to that particular book. The right did not extend to "
"what lawyers call \"derivative works.\" It would not, therefore, interfere "
"with the right of someone other than the author to translate a copyrighted "
"book, or to adapt the story to a different form (such as a drama based on a "
"published book)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6708
msgid ""
"This, too, has changed dramatically. While the contours of copyright today "
"are extremely hard to describe simply, in general terms, the right covers "
"practically any creative work that is reduced to a tangible form. It covers "
"music as well as architecture, drama as well as computer programs. It gives "
"the copyright owner of that creative work not only the exclusive right to "
"\"publish\" the work, but also the exclusive right of control over any "
"\"copies\" of that work. And most significant for our purposes here, the "
"right gives the copyright owner control over not only his or her particular "
"work, but also any \"derivative work\" that might grow out of the original "
"work. In this way, the right covers more creative work, protects the "
"creative work more broadly, and protects works that are based in a "
"significant way on the initial creative work."
msgstr ""

#.  PAGE BREAK 148 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6723
msgid ""
"At the same time that the scope of copyright has expanded, procedural "
"limitations on the right have been relaxed. I've already described the "
"complete removal of the renewal requirement in 1992. In addition to the "
"renewal requirement, for most of the history of American copyright law, "
"there was a requirement that a work be registered before it could receive "
"the protection of a copyright. There was also a requirement that any "
"copyrighted work be marked either with that famous &copy; or the word "
"<emphasis>copyright</emphasis>. And for most of the history of American "
"copyright law, there was a requirement that works be deposited with the "
"government before a copyright could be secured."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6737
msgid ""
"The reason for the registration requirement was the sensible understanding "
"that for most works, no copyright was required. Again, in the first ten "
"years of the Republic, 95 percent of works eligible for copyright were never "
"copyrighted. Thus, the rule reflected the norm: Most works apparently didn't "
"need copyright, so registration narrowed the regulation of the law to the "
"few that did. The same reasoning justified the requirement that a work be "
"marked as copyrighted&mdash;that way it was easy to know whether a copyright "
"was being claimed. The requirement that works be deposited was to assure "
"that after the copyright expired, there would be a copy of the work "
"somewhere so that it could be copied by others without locating the original "
"author."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6751
msgid ""
"All of these \"formalities\" were abolished in the American system when we "
"decided to follow European copyright law. There is no requirement that you "
"register a work to get a copyright; the copyright now is automatic; the "
"copyright exists whether or not you mark your work with a &copy;; and the "
"copyright exists whether or not you actually make a copy available for "
"others to copy."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6759
msgid "Consider a practical example to understand the scope of these differences."
msgstr ""

#.  f13 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:6770
msgid ""
"See Thomas Bender and David Sampliner, \"Poets, Pirates, and the Creation of "
"American Literature,\" 29 <citetitle>New York University Journal of "
"International Law and Politics</citetitle> 255 (1997), and James Gilraeth, "
"ed., Federal Copyright Records, 1790&ndash;1800 (U.S. G.P.O., 1987)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6763
msgid ""
"If, in 1790, you wrote a book and you were one of the 5 percent who actually "
"copyrighted that book, then the copyright law protected you against another "
"publisher's taking your book and republishing it without your "
"permission. The aim of the act was to regulate publishers so as to prevent "
"that kind of unfair competition. In 1790, there were 174 publishers in the "
"United States.<placeholder type=\"footnote\" id=\"0\"/> The Copyright Act "
"was thus a tiny regulation of a tiny proportion of a tiny part of the "
"creative market in the United States&mdash;publishers."
msgstr ""

#.  PAGE BREAK 149 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6782
msgid ""
"The act left other creators totally unregulated. If I copied your poem by "
"hand, over and over again, as a way to learn it by heart, my act was totally "
"unregulated by the 1790 act. If I took your novel and made a play based upon "
"it, or if I translated it or abridged it, none of those activities were "
"regulated by the original copyright act. These creative activities remained "
"free, while the activities of publishers were restrained."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6791
msgid ""
"Today the story is very different: If you write a book, your book is "
"automatically protected. Indeed, not just your book. Every e-mail, every "
"note to your spouse, every doodle, <emphasis>every</emphasis> creative act "
"that's reduced to a tangible form&mdash;all of this is automatically "
"copyrighted.  There is no need to register or mark your work. The protection "
"follows the creation, not the steps you take to protect it."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6800
msgid ""
"That protection gives you the right (subject to a narrow range of fair use "
"exceptions) to control how others copy the work, whether they copy it to "
"republish it or to share an excerpt."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6805
msgid ""
"That much is the obvious part. Any system of copyright would control "
"competing publishing. But there's a second part to the copyright of today "
"that is not at all obvious. This is the protection of \"derivative rights.\" "
"If you write a book, no one can make a movie out of your book without "
"permission. No one can translate it without permission.  CliffsNotes can't "
"make an abridgment unless permission is granted. All of these derivative "
"uses of your original work are controlled by the copyright holder. The "
"copyright, in other words, is now not just an exclusive right to your "
"writings, but an exclusive right to your writings and a large proportion of "
"the writings inspired by them."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6819
msgid ""
"It is this derivative right that would seem most bizarre to our framers, "
"though it has become second nature to us. Initially, this expansion was "
"created to deal with obvious evasions of a narrower copyright.  If I write a "
"book, can you change one word and then claim a copyright in a new and "
"different book? Obviously that would make a joke of the copyright, so the "
"law was properly expanded to include those slight modifications as well as "
"the verbatim original work."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:6841
msgid ""
"Jonathan Zittrain, \"The Copyright Cage,\" <citetitle>Legal "
"Affairs</citetitle>, July/August 2003, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #26</ulink>.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6831
msgid ""
"In preventing that joke, the law created an astonishing power within a free "
"culture&mdash;at least, it's astonishing when you understand that the law "
"applies not just to the commercial publisher but to anyone with a "
"computer. I understand the wrong in duplicating and selling someone else's "
"work. But whatever <emphasis>that</emphasis> wrong is, transforming someone "
"else's work is a different wrong. Some view transformation as no wrong at "
"all&mdash;they believe that our law, as the framers penned it, should not "
"protect derivative rights at all.<placeholder type=\"footnote\" id=\"0\"/> "
"Whether or not you go that far, it seems plain that whatever wrong is "
"involved is fundamentally different from the wrong of direct piracy."
msgstr ""

#.  f15 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:6856
msgid ""
"Professor Rubenfeld has presented a powerful constitutional argument about "
"the difference that copyright law should draw (from the perspective of the "
"First Amendment) between mere \"copies\" and derivative works. See Jed "
"Rubenfeld, \"The Freedom of Imagination: Copyright's Constitutionality,\" "
"<citetitle>Yale Law Journal</citetitle> 112 (2002): 1&ndash;60 (see "
"especially pp. 53&ndash;59)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6851
msgid ""
"Yet copyright law treats these two different wrongs in the same way. I can "
"go to court and get an injunction against your pirating my book. I can go to "
"court and get an injunction against your transformative use of my "
"book.<placeholder type=\"footnote\" id=\"0\"/> These two different uses of "
"my creative work are treated the same."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6867
msgid ""
"This again may seem right to you. If I wrote a book, then why should you be "
"able to write a movie that takes my story and makes money from it without "
"paying me or crediting me? Or if Disney creates a creature called \"Mickey "
"Mouse,\" why should you be able to make Mickey Mouse toys and be the one to "
"trade on the value that Disney originally created?"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6875
msgid ""
"These are good arguments, and, in general, my point is not that the "
"derivative right is unjustified. My aim just now is much narrower: simply to "
"make clear that this expansion is a significant change from the rights "
"originally granted."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:6882
msgid "Law and Architecture: Reach"
msgstr ""

#.  f16 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:6889
msgid ""
"This is a simplification of the law, but not much of one. The law certainly "
"regulates more than \"copies\"&mdash;a public performance of a copyrighted "
"song, for example, is regulated even though performance per se doesn't make "
"a copy; 17 <citetitle>United States Code</citetitle>, section 106(4). And it "
"certainly sometimes doesn't regulate a \"copy\"; 17 <citetitle>United States "
"Code</citetitle>, section 112(a). But the presumption under the existing law "
"(which regulates \"copies;\" 17 <citetitle>United States Code</citetitle>, "
"section 102) is that if there is a copy, there is a right."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6884
msgid ""
"Whereas originally the law regulated only publishers, the change in "
"copyright's scope means that the law today regulates publishers, users, and "
"authors. It regulates them because all three are capable of making copies, "
"and the core of the regulation of copyright law is copies.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 151 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6901
msgid ""
"\"Copies.\" That certainly sounds like the obvious thing for "
"<emphasis>copy</emphasis>right law to regulate. But as with Jack Valenti's "
"argument at the start of this chapter, that \"creative property\" deserves "
"the \"same rights\" as all other property, it is the "
"<emphasis>obvious</emphasis> that we need to be most careful about. For "
"while it may be obvious that in the world before the Internet, copies were "
"the obvious trigger for copyright law, upon reflection, it should be obvious "
"that in the world with the Internet, copies should <emphasis>not</emphasis> "
"be the trigger for copyright law. More precisely, they should not "
"<emphasis>always</emphasis> be the trigger for copyright law."
msgstr ""

#.  f17 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:6919
msgid ""
"Thus, my argument is not that in each place that copyright law extends, we "
"should repeal it. It is instead that we should have a good argument for its "
"extending where it does, and should not determine its reach on the basis of "
"arbitrary and automatic changes caused by technology."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6914
msgid ""
"This is perhaps the central claim of this book, so let me take this very "
"slowly so that the point is not easily missed. My claim is that the Internet "
"should at least force us to rethink the conditions under which the law of "
"copyright automatically applies,<placeholder type=\"footnote\" id=\"0\"/> "
"because it is clear that the current reach of copyright was never "
"contemplated, much less chosen, by the legislators who enacted copyright "
"law."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6930
msgid ""
"We can see this point abstractly by beginning with this largely empty "
"circle."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:6934
msgid "All potential uses of a book."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:6935
msgid "<graphic fileref=\"images/1521.png\"></graphic>"
msgstr ""

#.  PAGE BREAK 152 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6939
msgid ""
"Think about a book in real space, and imagine this circle to represent all "
"its potential <emphasis>uses</emphasis>. Most of these uses are unregulated "
"by copyright law, because the uses don't create a copy. If you read a book, "
"that act is not regulated by copyright law. If you give someone the book, "
"that act is not regulated by copyright law. If you resell a book, that act "
"is not regulated (copyright law expressly states that after the first sale "
"of a book, the copyright owner can impose no further conditions on the "
"disposition of the book). If you sleep on the book or use it to hold up a "
"lamp or let your puppy chew it up, those acts are not regulated by copyright "
"law, because those acts do not make a copy."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:6952
msgid "Examples of unregulated uses of a book."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:6953
msgid "<graphic fileref=\"images/1531.png\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6956
msgid ""
"Obviously, however, some uses of a copyrighted book are regulated by "
"copyright law. Republishing the book, for example, makes a copy. It is "
"therefore regulated by copyright law. Indeed, this particular use stands at "
"the core of this circle of possible uses of a copyrighted work. It is the "
"paradigmatic use properly regulated by copyright regulation (see first "
"diagram on next page)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6964
msgid ""
"Finally, there is a tiny sliver of otherwise regulated copying uses that "
"remain unregulated because the law considers these \"fair uses.\""
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:6969
msgid ""
"Republishing stands at the core of this circle of possible uses of a "
"copyrighted work."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:6970
msgid "<graphic fileref=\"images/1541.png\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6973
msgid ""
"These are uses that themselves involve copying, but which the law treats as "
"unregulated because public policy demands that they remain unregulated.  You "
"are free to quote from this book, even in a review that is quite negative, "
"without my permission, even though that quoting makes a copy. That copy "
"would ordinarily give the copyright owner the exclusive right to say whether "
"the copy is allowed or not, but the law denies the owner any exclusive right "
"over such \"fair uses\" for public policy (and possibly First Amendment) "
"reasons."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:6983
msgid "Unregulated copying considered &quot;fair uses.&quot;"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:6984
msgid "<graphic fileref=\"images/1542.png\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:6988
msgid ""
"Uses that before were presumptively unregulated are now presumptively "
"regulated."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:6989
msgid "<graphic fileref=\"images/1551.png\"></graphic>"
msgstr ""

#.  PAGE BREAK 154 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6993
msgid ""
"In real space, then, the possible uses of a book are divided into three "
"sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that "
"are nonetheless deemed \"fair\" regardless of the copyright owner's views."
msgstr ""

#.  f18 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7001
msgid ""
"I don't mean \"nature\" in the sense that it couldn't be different, but "
"rather that its present instantiation entails a copy. Optical networks need "
"not make copies of content they transmit, and a digital network could be "
"designed to delete anything it copies so that the same number of copies "
"remain."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6998
msgid ""
"Enter the Internet&mdash;a distributed, digital network where every use of a "
"copyrighted work produces a copy.<placeholder type=\"footnote\" id=\"0\"/> "
"And because of this single, arbitrary feature of the design of a digital "
"network, the scope of category 1 changes dramatically. Uses that before were "
"presumptively unregulated are now presumptively regulated. No longer is "
"there a set of presumptively unregulated uses that define a freedom "
"associated with a copyrighted work. Instead, each use is now subject to the "
"copyright, because each use also makes a copy&mdash;category 1 gets sucked "
"into category 2. And those who would defend the unregulated uses of "
"copyrighted work must look exclusively to category 3, fair uses, to bear the "
"burden of this shift."
msgstr ""

#.  PAGE BREAK 155 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7019
msgid ""
"So let's be very specific to make this general point clear. Before the "
"Internet, if you purchased a book and read it ten times, there would be no "
"plausible <emphasis>copyright</emphasis>-related argument that the copyright "
"owner could make to control that use of her book. Copyright law would have "
"nothing to say about whether you read the book once, ten times, or every "
"night before you went to bed. None of those instances of "
"use&mdash;reading&mdash; could be regulated by copyright law because none of "
"those uses produced a copy."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7031
msgid ""
"But the same book as an e-book is effectively governed by a different set of "
"rules. Now if the copyright owner says you may read the book only once or "
"only once a month, then <emphasis>copyright law</emphasis> would aid the "
"copyright owner in exercising this degree of control, because of the "
"accidental feature of copyright law that triggers its application upon there "
"being a copy. Now if you read the book ten times and the license says you "
"may read it only five times, then whenever you read the book (or any portion "
"of it) beyond the fifth time, you are making a copy of the book contrary to "
"the copyright owner's wish."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7043
msgid ""
"There are some people who think this makes perfect sense. My aim just now is "
"not to argue about whether it makes sense or not. My aim is only to make "
"clear the change. Once you see this point, a few other points also become "
"clear:"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7049
msgid ""
"First, making category 1 disappear is not anything any policy maker ever "
"intended. Congress did not think through the collapse of the presumptively "
"unregulated uses of copyrighted works. There is no evidence at all that "
"policy makers had this idea in mind when they allowed our policy here to "
"shift. Unregulated uses were an important part of free culture before the "
"Internet."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7057
msgid ""
"Second, this shift is especially troubling in the context of transformative "
"uses of creative content. Again, we can all understand the wrong in "
"commercial piracy. But the law now purports to regulate "
"<emphasis>any</emphasis> transformation you make of creative work using a "
"machine. \"Copy and paste\" and \"cut and paste\" become crimes. Tinkering "
"with a story and releasing it to others exposes the tinkerer to at least a "
"requirement of justification.  However troubling the expansion with respect "
"to copying a particular work, it is extraordinarily troubling with respect "
"to transformative uses of creative work."
msgstr ""

#.  PAGE BREAK 156 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7069
msgid ""
"Third, this shift from category 1 to category 2 puts an extraordinary burden "
"on category 3 (\"fair use\") that fair use never before had to bear.  If a "
"copyright owner now tried to control how many times I could read a book "
"on-line, the natural response would be to argue that this is a violation of "
"my fair use rights. But there has never been any litigation about whether I "
"have a fair use right to read, because before the Internet, reading did not "
"trigger the application of copyright law and hence the need for a fair use "
"defense. The right to read was effectively protected before because reading "
"was not regulated."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7083
msgid ""
"This point about fair use is totally ignored, even by advocates for free "
"culture. We have been cornered into arguing that our rights depend upon fair "
"use&mdash;never even addressing the earlier question about the expansion in "
"effective regulation. A thin protection grounded in fair use makes sense "
"when the vast majority of uses are <emphasis>unregulated</emphasis>. But "
"when everything becomes presumptively regulated, then the protections of "
"fair use are not enough."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7093
msgid ""
"The case of Video Pipeline is a good example. Video Pipeline was in the "
"business of making \"trailer\" advertisements for movies available to video "
"stores. The video stores displayed the trailers as a way to sell "
"videos. Video Pipeline got the trailers from the film distributors, put the "
"trailers on tape, and sold the tapes to the retail stores."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7100
msgid ""
"The company did this for about fifteen years. Then, in 1997, it began to "
"think about the Internet as another way to distribute these previews.  The "
"idea was to expand their \"selling by sampling\" technique by giving on-line "
"stores the same ability to enable \"browsing.\" Just as in a bookstore you "
"can read a few pages of a book before you buy the book, so, too, you would "
"be able to sample a bit from the movie on-line before you bought it."
msgstr ""

#.  PAGE BREAK 157 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7109
msgid ""
"In 1998, Video Pipeline informed Disney and other film distributors that it "
"intended to distribute the trailers through the Internet (rather than "
"sending the tapes) to distributors of their videos. Two years later, Disney "
"told Video Pipeline to stop. The owner of Video Pipeline asked Disney to "
"talk about the matter&mdash;he had built a business on distributing this "
"content as a way to help sell Disney films; he had customers who depended "
"upon his delivering this content. Disney would agree to talk only if Video "
"Pipeline stopped the distribution immediately.  Video Pipeline thought it "
"was within their \"fair use\" rights to distribute the clips as they had. So "
"they filed a lawsuit to ask the court to declare that these rights were in "
"fact their rights."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7124
msgid ""
"Disney countersued&mdash;for $100 million in damages. Those damages were "
"predicated upon a claim that Video Pipeline had \"willfully infringed\" on "
"Disney's copyright. When a court makes a finding of willful infringement, it "
"can award damages not on the basis of the actual harm to the copyright "
"owner, but on the basis of an amount set in the statute. Because Video "
"Pipeline had distributed seven hundred clips of Disney movies to enable "
"video stores to sell copies of those movies, Disney was now suing Video "
"Pipeline for $100 million."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7134
msgid ""
"Disney has the right to control its property, of course. But the video "
"stores that were selling Disney's films also had some sort of right to be "
"able to sell the films that they had bought from Disney. Disney's claim in "
"court was that the stores were allowed to sell the films and they were "
"permitted to list the titles of the films they were selling, but they were "
"not allowed to show clips of the films as a way of selling them without "
"Disney's permission."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7143
msgid ""
"Now, you might think this is a close case, and I think the courts would "
"consider it a close case. My point here is to map the change that gives "
"Disney this power. Before the Internet, Disney couldn't really control how "
"people got access to their content. Once a video was in the marketplace, the "
"\"first-sale doctrine\" would free the seller to use the video as he wished, "
"including showing portions of it in order to engender sales of the entire "
"movie video. But with the Internet, it becomes possible for Disney to "
"centralize control over access to this content. Because each use of the "
"Internet produces a copy, use on the Internet becomes subject to the "
"copyright owner's control. The technology expands the scope of effective "
"control, because the technology builds a copy into every transaction."
msgstr ""

#.  PAGE BREAK 158 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7158
msgid ""
"No doubt, a potential is not yet an abuse, and so the potential for control "
"is not yet the abuse of control. Barnes &amp; Noble has the right to say you "
"can't touch a book in their store; property law gives them that right.  But "
"the market effectively protects against that abuse. If Barnes &amp; Noble "
"banned browsing, then consumers would choose other bookstores.  Competition "
"protects against the extremes. And it may well be (my argument so far does "
"not even question this) that competition would prevent any similar danger "
"when it comes to copyright. Sure, publishers exercising the rights that "
"authors have assigned to them might try to regulate how many times you read "
"a book, or try to stop you from sharing the book with anyone. But in a "
"competitive market such as the book market, the dangers of this happening "
"are quite slight."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7173
msgid ""
"Again, my aim so far is simply to map the changes that this changed "
"architecture enables. Enabling technology to enforce the control of "
"copyright means that the control of copyright is no longer defined by "
"balanced policy. The control of copyright is simply what private owners "
"choose. In some contexts, at least, that fact is harmless. But in some "
"contexts it is a recipe for disaster."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:7182
msgid "Architecture and Law: Force"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7184
msgid ""
"The disappearance of unregulated uses would be change enough, but a second "
"important change brought about by the Internet magnifies its "
"significance. This second change does not affect the reach of copyright "
"regulation; it affects how such regulation is enforced."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7190
msgid ""
"In the world before digital technology, it was generally the law that "
"controlled whether and how someone was regulated by copyright law.  The law, "
"meaning a court, meaning a judge: In the end, it was a human, trained in the "
"tradition of the law and cognizant of the balances that tradition embraced, "
"who said whether and how the law would restrict your freedom."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:7197
msgid "Casablanca"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:7199 freeculture.xml:7378
msgid "Marx Brothers"
msgstr ""

#.  f19 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7213
msgid ""
"See David Lange, \"Recognizing the Public Domain,\" <citetitle>Law and "
"Contemporary Problems</citetitle> 44 (1981): 172&ndash;73."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7205
msgid ""
"There's a famous story about a battle between the Marx Brothers and Warner "
"Brothers. The Marxes intended to make a parody of "
"<citetitle>Casablanca</citetitle>. Warner Brothers objected. They wrote a "
"nasty letter to the Marxes, warning them that there would be serious legal "
"consequences if they went forward with their plan.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7222
msgid ""
"Ibid. See also Vaidhyanathan, <citetitle>Copyrights and "
"Copywrongs</citetitle>, 1&ndash;3.  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7218
msgid ""
"This led the Marx Brothers to respond in kind. They warned Warner Brothers "
"that the Marx Brothers \"were brothers long before you were.\"<placeholder "
"type=\"footnote\" id=\"0\"/> The Marx Brothers therefore owned the word "
"<citetitle>brothers</citetitle>, and if Warner Brothers insisted on trying "
"to control <citetitle>Casablanca</citetitle>, then the Marx Brothers would "
"insist on control over <citetitle>brothers</citetitle>."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7232
msgid ""
"An absurd and hollow threat, of course, because Warner Brothers, like the "
"Marx Brothers, knew that no court would ever enforce such a silly "
"claim. This extremism was irrelevant to the real freedoms anyone (including "
"Warner Brothers) enjoyed."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7238
msgid ""
"On the Internet, however, there is no check on silly rules, because on the "
"Internet, increasingly, rules are enforced not by a human but by a machine: "
"Increasingly, the rules of copyright law, as interpreted by the copyright "
"owner, get built into the technology that delivers copyrighted content. It "
"is code, rather than law, that rules. And the problem with code regulations "
"is that, unlike law, code has no shame. Code would not get the humor of the "
"Marx Brothers. The consequence of that is not at all funny."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:7251
msgid "Adobe eBook Reader"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7254
msgid "Consider the life of my Adobe eBook Reader."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7257
msgid ""
"An e-book is a book delivered in electronic form. An Adobe eBook is not a "
"book that Adobe has published; Adobe simply produces the software that "
"publishers use to deliver e-books. It provides the technology, and the "
"publisher delivers the content by using the technology."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7264
msgid "On the next page is a picture of an old version of my Adobe eBook Reader."
msgstr ""

#.  PAGE BREAK 160 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7268
msgid ""
"As you can see, I have a small collection of e-books within this e-book "
"library. Some of these books reproduce content that is in the public domain: "
"<citetitle>Middlemarch</citetitle>, for example, is in the public domain.  "
"Some of them reproduce content that is not in the public domain: My own book "
"<citetitle>The Future of Ideas</citetitle> is not yet within the public "
"domain.  Consider <citetitle>Middlemarch</citetitle> first. If you click on "
"my e-book copy of <citetitle>Middlemarch</citetitle>, you'll see a fancy "
"cover, and then a button at the bottom called Permissions."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:7281
msgid "Picture of an old version of Adobe eBook Reader"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:7282
msgid "<graphic fileref=\"images/1611.png\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7285
msgid ""
"If you click on the Permissions button, you'll see a list of the permissions "
"that the publisher purports to grant with this book."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:7289
msgid "List of the permissions that the publisher purports to grant."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:7290
msgid "<graphic fileref=\"images/1612.png\"></graphic>"
msgstr ""

#.  PAGE BREAK 161 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7294
msgid ""
"According to my eBook Reader, I have the permission to copy to the clipboard "
"of the computer ten text selections every ten days. (So far, I've copied no "
"text to the clipboard.)  I also have the permission to print ten pages from "
"the book every ten days. Lastly, I have the permission to use the Read Aloud "
"button to hear <citetitle>Middlemarch</citetitle> read aloud through the "
"computer."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:7304
msgid "Aristotle"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:7305
msgid "<citetitle>Politics</citetitle>, (Aristotle)"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7302
msgid ""
"Here's the e-book for another work in the public domain (including the "
"translation): Aristotle's <citetitle>Politics</citetitle>.  <placeholder "
"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:7308
msgid "E-book of Aristotle;s &quot;Politics&quot;"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:7309
msgid "<graphic fileref=\"images/1621.png\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7312
msgid ""
"According to its permissions, no printing or copying is permitted at "
"all. But fortunately, you can use the Read Aloud button to hear the book."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:7317
msgid "List of the permissions for Aristotle;s &quot;Politics&quot;."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:7318
msgid "<graphic fileref=\"images/1622.png\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7321
msgid ""
"Finally (and most embarrassingly), here are the permissions for the original "
"e-book version of my last book, <citetitle>The Future of Ideas</citetitle>:"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:7327
msgid "List of the permissions for &quot;The Future of Ideas&quot;."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:7328
msgid "<graphic fileref=\"images/1631.png\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7331
msgid "No copying, no printing, and don't you dare try to listen to this book!"
msgstr ""

#.  f21 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7341
msgid ""
"In principle, a contract might impose a requirement on me. I might, for "
"example, buy a book from you that includes a contract that says I will read "
"it only three times, or that I promise to read it three times. But that "
"obligation (and the limits for creating that obligation) would come from the "
"contract, not from copyright law, and the obligations of contract would not "
"necessarily pass to anyone who subsequently acquired the book."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7334
msgid ""
"Now, the Adobe eBook Reader calls these controls \"permissions\"&mdash; as "
"if the publisher has the power to control how you use these works.  For "
"works under copyright, the copyright owner certainly does have the "
"power&mdash;up to the limits of the copyright law. But for work not under "
"copyright, there is no such copyright power.<placeholder type=\"footnote\" "
"id=\"0\"/> When my e-book of <citetitle>Middlemarch</citetitle> says I have "
"the permission to copy only ten text selections into the memory every ten "
"days, what that really means is that the eBook Reader has enabled the "
"publisher to control how I use the book on my computer, far beyond the "
"control that the law would enable."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7356
msgid ""
"The control comes instead from the code&mdash;from the technology within "
"which the e-book \"lives.\" Though the e-book says that these are "
"permissions, they are not the sort of \"permissions\" that most of us deal "
"with. When a teenager gets \"permission\" to stay out till midnight, she "
"knows (unless she's Cinderella) that she can stay out till 2 A.M., but will "
"suffer a punishment if she's caught. But when the Adobe eBook Reader says I "
"have the permission to make ten copies of the text into the computer's "
"memory, that means that after I've made ten copies, the computer will not "
"make any more. The same with the printing restrictions: After ten pages, the "
"eBook Reader will not print any more pages.  It's the same with the silly "
"restriction that says that you can't use the Read Aloud button to read my "
"book aloud&mdash;it's not that the company will sue you if you do; instead, "
"if you push the Read Aloud button with my book, the machine simply won't "
"read aloud."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7374
msgid ""
"These are <emphasis>controls</emphasis>, not permissions. Imagine a world "
"where the Marx Brothers sold word processing software that, when you tried "
"to type \"Warner Brothers,\" erased \"Brothers\" from the sentence.  "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7381
msgid ""
"This is the future of copyright law: not so much copyright "
"<emphasis>law</emphasis> as copyright <emphasis>code</emphasis>. The "
"controls over access to content will not be controls that are ratified by "
"courts; the controls over access to content will be controls that are coded "
"by programmers. And whereas the controls that are built into the law are "
"always to be checked by a judge, the controls that are built into the "
"technology have no similar built-in check."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7390
msgid ""
"How significant is this? Isn't it always possible to get around the controls "
"built into the technology? Software used to be sold with technologies that "
"limited the ability of users to copy the software, but those were trivial "
"protections to defeat. Why won't it be trivial to defeat these protections "
"as well?"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7397
msgid ""
"We've only scratched the surface of this story. Return to the Adobe eBook "
"Reader."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:7407
msgid "Alice's Adventures in Wonderland (Carroll)"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7401
msgid ""
"Early in the life of the Adobe eBook Reader, Adobe suffered a public "
"relations nightmare. Among the books that you could download for free on the "
"Adobe site was a copy of <citetitle>Alice's Adventures in "
"Wonderland</citetitle>.  This wonderful book is in the public domain. Yet "
"when you clicked on Permissions for that book, you got the following report: "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:7410
msgid "List of the permissions for &quot;Alice's Adventures in Wonderland&quot;."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:7412
msgid "<graphic fileref=\"images/1641.png\"></graphic>"
msgstr ""

#.  PAGE BREAK 164 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7416
msgid ""
"Here was a public domain children's book that you were not allowed to copy, "
"not allowed to lend, not allowed to give, and, as the \"permissions\" "
"indicated, not allowed to \"read aloud\"!"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7421
msgid ""
"The public relations nightmare attached to that final permission.  For the "
"text did not say that you were not permitted to use the Read Aloud button; "
"it said you did not have the permission to read the book aloud. That led "
"some people to think that Adobe was restricting the right of parents, for "
"example, to read the book to their children, which seemed, to say the least, "
"absurd."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7429
msgid ""
"Adobe responded quickly that it was absurd to think that it was trying to "
"restrict the right to read a book aloud. Obviously it was only restricting "
"the ability to use the Read Aloud button to have the book read aloud. But "
"the question Adobe never did answer is this: Would Adobe thus agree that a "
"consumer was free to use software to hack around the restrictions built into "
"the eBook Reader? If some company (call it Elcomsoft) developed a program to "
"disable the technological protection built into an Adobe eBook so that a "
"blind person, say, could use a computer to read the book aloud, would Adobe "
"agree that such a use of an eBook Reader was fair? Adobe didn't answer "
"because the answer, however absurd it might seem, is no."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7442
msgid ""
"The point is not to blame Adobe. Indeed, Adobe is among the most innovative "
"companies developing strategies to balance open access to content with "
"incentives for companies to innovate. But Adobe's technology enables "
"control, and Adobe has an incentive to defend this control.  That incentive "
"is understandable, yet what it creates is often crazy."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7451
msgid ""
"To see the point in a particularly absurd context, consider a favorite story "
"of mine that makes the same point."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:7455
msgid "Aibo robotic dog"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7458
msgid ""
"Consider the robotic dog made by Sony named \"Aibo.\" The Aibo learns "
"tricks, cuddles, and follows you around. It eats only electricity and that "
"doesn't leave that much of a mess (at least in your house)."
msgstr ""

#.  PAGE BREAK 165 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7463
msgid ""
"The Aibo is expensive and popular. Fans from around the world have set up "
"clubs to trade stories. One fan in particular set up a Web site to enable "
"information about the Aibo dog to be shared. This fan set up aibopet.com "
"(and aibohack.com, but that resolves to the same site), and on that site he "
"provided information about how to teach an Aibo to do tricks in addition to "
"the ones Sony had taught it."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7472
msgid ""
"\"Teach\" here has a special meaning. Aibos are just cute computers.  You "
"teach a computer how to do something by programming it differently.  So to "
"say that aibopet.com was giving information about how to teach the dog to do "
"new tricks is just to say that aibopet.com was giving information to users "
"of the Aibo pet about how to hack their computer \"dog\" to make it do new "
"tricks (thus, aibohack.com)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7480
msgid ""
"If you're not a programmer or don't know many programmers, the word "
"<citetitle>hack</citetitle> has a particularly unfriendly "
"connotation. Nonprogrammers hack bushes or weeds. Nonprogrammers in horror "
"movies do even worse. But to programmers, or coders, as I call them, "
"<citetitle>hack</citetitle> is a much more positive "
"term. <citetitle>Hack</citetitle> just means code that enables the program "
"to do something it wasn't originally intended or enabled to do. If you buy a "
"new printer for an old computer, you might find the old computer doesn't "
"run, or \"drive,\" the printer. If you discovered that, you'd later be happy "
"to discover a hack on the Net by someone who has written a driver to enable "
"the computer to drive the printer you just bought."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7492
msgid ""
"Some hacks are easy. Some are unbelievably hard. Hackers as a community like "
"to challenge themselves and others with increasingly difficult "
"tasks. There's a certain respect that goes with the talent to hack "
"well. There's a well-deserved respect that goes with the talent to hack "
"ethically."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7499
msgid ""
"The Aibo fan was displaying a bit of both when he hacked the program and "
"offered to the world a bit of code that would enable the Aibo to dance "
"jazz. The dog wasn't programmed to dance jazz. It was a clever bit of "
"tinkering that turned the dog into a more talented creature than Sony had "
"built."
msgstr ""

#.  PAGE BREAK 166 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7507
msgid ""
"I've told this story in many contexts, both inside and outside the United "
"States. Once I was asked by a puzzled member of the audience, is it "
"permissible for a dog to dance jazz in the United States? We forget that "
"stories about the backcountry still flow across much of the world. So let's "
"just be clear before we continue: It's not a crime anywhere (anymore) to "
"dance jazz. Nor is it a crime to teach your dog to dance jazz. Nor should it "
"be a crime (though we don't have a lot to go on here) to teach your robot "
"dog to dance jazz. Dancing jazz is a completely legal activity. One imagines "
"that the owner of aibopet.com thought, <emphasis>What possible problem could "
"there be with teaching a robot dog to dance?</emphasis>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7523
msgid ""
"Let's put the dog to sleep for a minute, and turn to a pony show&mdash; not "
"literally a pony show, but rather a paper that a Princeton academic named Ed "
"Felten prepared for a conference. This Princeton academic is well known and "
"respected. He was hired by the government in the Microsoft case to test "
"Microsoft's claims about what could and could not be done with its own "
"code. In that trial, he demonstrated both his brilliance and his "
"coolness. Under heavy badgering by Microsoft lawyers, Ed Felten stood his "
"ground. He was not about to be bullied into being silent about something he "
"knew very well."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:7546 freeculture.xml:9988
msgid "Electronic Frontier Foundation"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7536
msgid ""
"See Pamela Samuelson, \"Anticircumvention Rules: Threat to Science,\" "
"<citetitle>Science</citetitle> 293 (2001): 2028; Brendan I. Koerner, \"Play "
"Dead: Sony Muzzles the Techies Who Teach a Robot Dog New Tricks,\" "
"<citetitle>American Prospect</citetitle>, January 2002; \"Court Dismisses "
"Computer Scientists' Challenge to DMCA,\" <citetitle>Intellectual Property "
"Litigation Reporter</citetitle>, 11 December 2001; Bill Holland, \"Copyright "
"Act Raising Free-Speech Concerns,\" <citetitle>Billboard</citetitle>, May "
"2001; Janelle Brown, \"Is the RIAA Running Scared?\" Salon.com, April 2001; "
"Electronic Frontier Foundation, \"Frequently Asked Questions about "
"<citetitle>Felten and USENIX</citetitle> v. <citetitle>RIAA</citetitle> "
"Legal Case,\" available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#27</ulink>.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7534
msgid ""
"But Felten's bravery was really tested in April 2001.<placeholder "
"type=\"footnote\" id=\"0\"/> He and a group of colleagues were working on a "
"paper to be submitted at conference.  The paper was intended to describe the "
"weakness in an encryption system being developed by the Secure Digital Music "
"Initiative as a technique to control the distribution of music."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7554
msgid ""
"The SDMI coalition had as its goal a technology to enable content owners to "
"exercise much better control over their content than the Internet, as it "
"originally stood, granted them. Using encryption, SDMI hoped to develop a "
"standard that would allow the content owner to say \"this music cannot be "
"copied,\" and have a computer respect that command.  The technology was to "
"be part of a \"trusted system\" of control that would get content owners to "
"trust the system of the Internet much more."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7564
msgid ""
"When SDMI thought it was close to a standard, it set up a competition.  In "
"exchange for providing contestants with the code to an SDMI-encrypted bit of "
"content, contestants were to try to crack it and, if they did, report the "
"problems to the consortium."
msgstr ""

#.  PAGE BREAK 167 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7571
msgid ""
"Felten and his team figured out the encryption system quickly. He and the "
"team saw the weakness of this system as a type: Many encryption systems "
"would suffer the same weakness, and Felten and his team thought it "
"worthwhile to point this out to those who study encryption."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7577
msgid ""
"Let's review just what Felten was doing. Again, this is the United "
"States. We have a principle of free speech. We have this principle not just "
"because it is the law, but also because it is a really great idea. A "
"strongly protected tradition of free speech is likely to encourage a wide "
"range of criticism. That criticism is likely, in turn, to improve the "
"systems or people or ideas criticized."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7585
msgid ""
"What Felten and his colleagues were doing was publishing a paper describing "
"the weakness in a technology. They were not spreading free music, or "
"building and deploying this technology. The paper was an academic essay, "
"unintelligible to most people. But it clearly showed the weakness in the "
"SDMI system, and why SDMI would not, as presently constituted, succeed."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7593
msgid ""
"What links these two, aibopet.com and Felten, is the letters they then "
"received. Aibopet.com received a letter from Sony about the aibopet.com "
"hack. Though a jazz-dancing dog is perfectly legal, Sony wrote:"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:7600
msgid ""
"Your site contains information providing the means to circumvent AIBO-ware's "
"copy protection protocol constituting a violation of the anti-circumvention "
"provisions of the Digital Millennium Copyright Act."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7606
msgid ""
"And though an academic paper describing the weakness in a system of "
"encryption should also be perfectly legal, Felten received a letter from an "
"RIAA lawyer that read:"
msgstr ""

#.  PAGE BREAK 168 
#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:7612
msgid ""
"Any disclosure of information gained from participating in the Public "
"Challenge would be outside the scope of activities permitted by the "
"Agreement and could subject you and your research team to actions under the "
"Digital Millennium Copyright Act (\"DMCA\")."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7620
msgid ""
"In both cases, this weirdly Orwellian law was invoked to control the spread "
"of information. The Digital Millennium Copyright Act made spreading such "
"information an offense."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7625
msgid ""
"The DMCA was enacted as a response to copyright owners' first fear about "
"cyberspace. The fear was that copyright control was effectively dead; the "
"response was to find technologies that might compensate.  These new "
"technologies would be copyright protection technologies&mdash; technologies "
"to control the replication and distribution of copyrighted material. They "
"were designed as <emphasis>code</emphasis> to modify the original "
"<emphasis>code</emphasis> of the Internet, to reestablish some protection "
"for copyright owners."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7636
msgid ""
"The DMCA was a bit of law intended to back up the protection of this code "
"designed to protect copyrighted material. It was, we could say, "
"<emphasis>legal code</emphasis> intended to buttress <emphasis>software "
"code</emphasis> which itself was intended to support the <emphasis>legal "
"code of copyright</emphasis>."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7643
msgid ""
"But the DMCA was not designed merely to protect copyrighted works to the "
"extent copyright law protected them. Its protection, that is, did not end at "
"the line that copyright law drew. The DMCA regulated devices that were "
"designed to circumvent copyright protection measures. It was designed to ban "
"those devices, whether or not the use of the copyrighted material made "
"possible by that circumvention would have been a copyright violation."
msgstr ""

#.  PAGE BREAK 169 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7652
msgid ""
"Aibopet.com and Felten make the point. The Aibo hack circumvented a "
"copyright protection system for the purpose of enabling the dog to dance "
"jazz. That enablement no doubt involved the use of copyrighted material. But "
"as aibopet.com's site was noncommercial, and the use did not enable "
"subsequent copyright infringements, there's no doubt that aibopet.com's hack "
"was fair use of Sony's copyrighted material. Yet fair use is not a defense "
"to the DMCA. The question is not whether the use of the copyrighted material "
"was a copyright violation. The question is whether a copyright protection "
"system was circumvented."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7664
msgid ""
"The threat against Felten was more attenuated, but it followed the same line "
"of reasoning. By publishing a paper describing how a copyright protection "
"system could be circumvented, the RIAA lawyer suggested, Felten himself was "
"distributing a circumvention technology.  Thus, even though he was not "
"himself infringing anyone's copyright, his academic paper was enabling "
"others to infringe others' copyright."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:7680 freeculture.xml:7715 freeculture.xml:7747
msgid "Conrad, Paul"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7672
msgid ""
"The bizarreness of these arguments is captured in a cartoon drawn in 1981 by "
"Paul Conrad. At that time, a court in California had held that the VCR could "
"be banned because it was a copyright-infringing technology: It enabled "
"consumers to copy films without the permission of the copyright owner. No "
"doubt there were uses of the technology that were legal: Fred Rogers, aka "
"\"<citetitle>Mr. Rogers</citetitle>,\" for example, had testified in that "
"case that he wanted people to feel free to tape Mr. Rogers' Neighborhood.  "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#.  f23 
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:7699
msgid ""
"<citetitle>Sony Corporation of America</citetitle> v. <citetitle>Universal "
"City Studios, Inc</citetitle>., 464 U.S. 417, 455 fn. 27 (1984). Rogers "
"never changed his view about the VCR. See James Lardner, <citetitle>Fast "
"Forward: Hollywood, the Japanese, and the Onslaught of the VCR</citetitle> "
"(New York: W. W. Norton, 1987), 270&ndash;71."
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:7684
msgid ""
"Some public stations, as well as commercial stations, program the "
"\"Neighborhood\" at hours when some children cannot use it. I think that "
"it's a real service to families to be able to record such programs and show "
"them at appropriate times. I have always felt that with the advent of all of "
"this new technology that allows people to tape the \"Neighborhood\" "
"off-the-air, and I'm speaking for the \"Neighborhood\" because that's what I "
"produce, that they then become much more active in the programming of their "
"family's television life. Very frankly, I am opposed to people being "
"programmed by others. My whole approach in broadcasting has always been "
"\"You are an important person just the way you are. You can make healthy "
"decisions.\" Maybe I'm going on too long, but I just feel that anything that "
"allows a person to be more active in the control of his or her life, in a "
"healthy way, is important.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 170 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7708
msgid ""
"Even though there were uses that were legal, because there were some uses "
"that were illegal, the court held the companies producing the VCR "
"responsible."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7713
msgid ""
"This led Conrad to draw the cartoon below, which we can adopt to the DMCA.  "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7718
msgid "No argument I have can top this picture, but let me try to get close."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7721
msgid ""
"The anticircumvention provisions of the DMCA target copyright circumvention "
"technologies. Circumvention technologies can be used for different "
"ends. They can be used, for example, to enable massive pirating of "
"copyrighted material&mdash;a bad end. Or they can be used to enable the use "
"of particular copyrighted materials in ways that would be considered fair "
"use&mdash;a good end."
msgstr ""

#.  PAGE BREAK 171 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7729
msgid ""
"A handgun can be used to shoot a police officer or a child. Most would agree "
"such a use is bad. Or a handgun can be used for target practice or to "
"protect against an intruder. At least some would say that such a use would "
"be good. It, too, is a technology that has both good and bad uses."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:7737
msgid "VCR/handgun cartoon."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:7738
msgid "<graphic fileref=\"images/1711.png\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7741
msgid ""
"The obvious point of Conrad's cartoon is the weirdness of a world where guns "
"are legal, despite the harm they can do, while VCRs (and circumvention "
"technologies) are illegal. Flash: <emphasis>No one ever died from copyright "
"circumvention</emphasis>. Yet the law bans circumvention technologies "
"absolutely, despite the potential that they might do some good, but permits "
"guns, despite the obvious and tragic harm they do.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7750
msgid ""
"The Aibo and RIAA examples demonstrate how copyright owners are changing the "
"balance that copyright law grants. Using code, copyright owners restrict "
"fair use; using the DMCA, they punish those who would attempt to evade the "
"restrictions on fair use that they impose through code. Technology becomes a "
"means by which fair use can be erased; the law of the DMCA backs up that "
"erasing."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7758
msgid ""
"This is how <emphasis>code</emphasis> becomes <emphasis>law</emphasis>. The "
"controls built into the technology of copy and access protection become "
"rules the violation of which is also a violation of the law. In this way, "
"the code extends the law&mdash;increasing its regulation, even if the "
"subject it regulates (activities that would otherwise plainly constitute "
"fair use) is beyond the reach of the law. Code becomes law; code extends the "
"law; code thus extends the control that copyright owners effect&mdash;at "
"least for those copyright holders with the lawyers who can write the nasty "
"letters that Felten and aibopet.com received."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7770
msgid ""
"There is one final aspect of the interaction between architecture and law "
"that contributes to the force of copyright's regulation. This is the ease "
"with which infringements of the law can be detected. For contrary to the "
"rhetoric common at the birth of cyberspace that on the Internet, no one "
"knows you're a dog, increasingly, given changing technologies deployed on "
"the Internet, it is easy to find the dog who committed a legal wrong. The "
"technologies of the Internet are open to snoops as well as sharers, and the "
"snoops are increasingly good at tracking down the identity of those who "
"violate the rules."
msgstr ""

#.  f24 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7789
msgid ""
"For an early and prescient analysis, see Rebecca Tushnet, \"Legal Fictions, "
"Copyright, Fan Fiction, and a New Common Law,\" <citetitle>Loyola of Los "
"Angeles Entertainment Law Journal</citetitle> 17 (1997): 651."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7783
msgid ""
"For example, imagine you were part of a <citetitle>Star Trek</citetitle> fan "
"club. You gathered every month to share trivia, and maybe to enact a kind of "
"fan fiction about the show. One person would play Spock, another, Captain "
"Kirk. The characters would begin with a plot from a real story, then simply "
"continue it.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7795
msgid ""
"Before the Internet, this was, in effect, a totally unregulated activity.  "
"No matter what happened inside your club room, you would never be interfered "
"with by the copyright police. You were free in that space to do as you "
"wished with this part of our culture. You were allowed to build on it as you "
"wished without fear of legal control."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7802
msgid ""
"But if you moved your club onto the Internet, and made it generally "
"available for others to join, the story would be very different. Bots "
"scouring the Net for trademark and copyright infringement would quickly find "
"your site. Your posting of fan fiction, depending upon the ownership of the "
"series that you're depicting, could well inspire a lawyer's threat. And "
"ignoring the lawyer's threat would be extremely costly indeed.  The law of "
"copyright is extremely efficient. The penalties are severe, and the process "
"is quick."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7812
msgid ""
"This change in the effective force of the law is caused by a change in the "
"ease with which the law can be enforced. That change too shifts the law's "
"balance radically. It is as if your car transmitted the speed at which you "
"traveled at every moment that you drove; that would be just one step before "
"the state started issuing tickets based upon the data you transmitted. That "
"is, in effect, what is happening here."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:7821
msgid "Market: Concentration"
msgstr ""

#.  PAGE BREAK 173 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7823
msgid ""
"So copyright's duration has increased dramatically&mdash;tripled in the past "
"thirty years. And copyright's scope has increased as well&mdash;from "
"regulating only publishers to now regulating just about everyone. And "
"copyright's reach has changed, as every action becomes a copy and hence "
"presumptively regulated. And as technologists find better ways to control "
"the use of content, and as copyright is increasingly enforced through "
"technology, copyright's force changes, too. Misuse is easier to find and "
"easier to control. This regulation of the creative process, which began as a "
"tiny regulation governing a tiny part of the market for creative work, has "
"become the single most important regulator of creativity there is. It is a "
"massive expansion in the scope of the government's control over innovation "
"and creativity; it would be totally unrecognizable to those who gave birth "
"to copyright's control."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7841
msgid ""
"Still, in my view, all of these changes would not matter much if it weren't "
"for one more change that we must also consider. This is a change that is in "
"some sense the most familiar, though its significance and scope are not well "
"understood. It is the one that creates precisely the reason to be concerned "
"about all the other changes I have described."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7848
msgid ""
"This is the change in the concentration and integration of the media.  In "
"the past twenty years, the nature of media ownership has undergone a radical "
"alteration, caused by changes in legal rules governing the media.  Before "
"this change happened, the different forms of media were owned by separate "
"media companies. Now, the media is increasingly owned by only a few "
"companies. Indeed, after the changes that the FCC announced in June 2003, "
"most expect that within a few years, we will live in a world where just "
"three companies control more than percent of the media."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7859
msgid "These changes are of two sorts: the scope of concentration, and its nature."
msgstr ""

#.  f25 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7867
msgid ""
"FCC Oversight: Hearing Before the Senate Commerce, Science and "
"Transportation Committee, 108th Cong., 1st sess. (22 May 2003)  (statement "
"of Senator John McCain)."
msgstr ""

#.  f26 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7874
msgid ""
"Lynette Holloway, \"Despite a Marketing Blitz, CD Sales Continue to Slide,\" "
"<citetitle>New York Times</citetitle>, 23 December 2002."
msgstr ""

#.  f27 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7880
msgid ""
"Molly Ivins, \"Media Consolidation Must Be Stopped,\" <citetitle>Charleston "
"Gazette</citetitle>, 31 May 2003."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:7883
msgid "BMG"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:7884 freeculture.xml:9222
msgid "EMI"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:7885
msgid "McCain, John"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:7886 freeculture.xml:9223
msgid "Universal Music Group"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:7887
msgid "Warner Music Group"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7863
msgid ""
"Changes in scope are the easier ones to describe. As Senator John McCain "
"summarized the data produced in the FCC's review of media ownership, \"five "
"companies control 85 percent of our media sources.\"<placeholder "
"type=\"footnote\" id=\"0\"/> The five recording labels of Universal Music "
"Group, BMG, Sony Music Entertainment, Warner Music Group, and EMI control "
"84.8 percent of the U.S. music market.<placeholder type=\"footnote\" "
"id=\"1\"/> The \"five largest cable companies pipe programming to 74 percent "
"of the cable subscribers nationwide.\"<placeholder type=\"footnote\" "
"id=\"2\"/> <placeholder type=\"indexterm\" id=\"3\"/> <placeholder "
"type=\"indexterm\" id=\"4\"/> <placeholder type=\"indexterm\" id=\"5\"/> "
"<placeholder type=\"indexterm\" id=\"6\"/> <placeholder type=\"indexterm\" "
"id=\"7\"/>"
msgstr ""

#.  PAGE BREAK 174 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7890
msgid ""
"The story with radio is even more dramatic. Before deregulation, the "
"nation's largest radio broadcasting conglomerate owned fewer than "
"seventy-five stations. Today <emphasis>one</emphasis> company owns more than "
"1,200 stations.  During that period of consolidation, the total number of "
"radio owners dropped by 34 percent. Today, in most markets, the two largest "
"broadcasters control 74 percent of that market's revenues. Overall, just "
"four companies control 90 percent of the nation's radio advertising "
"revenues."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7901
msgid ""
"Newspaper ownership is becoming more concentrated as well.  Today, there are "
"six hundred fewer daily newspapers in the United States than there were "
"eighty years ago, and ten companies control half of the nation's "
"circulation. There are twenty major newspaper publishers in the United "
"States. The top ten film studios receive 99 percent of all film revenue. The "
"ten largest cable companies account for 85 percent of all cable "
"revenue. This is a market far from the free press the framers sought to "
"protect. Indeed, it is a market that is quite well protected&mdash; by the "
"market."
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para><indexterm><primary>
#: freeculture.xml:7915 freeculture.xml:7932
msgid "Fallows, James"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7912
msgid ""
"Concentration in size alone is one thing. The more invidious change is in "
"the nature of that concentration. As author James Fallows put it in a recent "
"article about Rupert Murdoch, <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:7930
msgid ""
"James Fallows, \"The Age of Murdoch,\" <citetitle>Atlantic "
"Monthly</citetitle> (September 2003): 89.  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:7919
msgid ""
"Murdoch's companies now constitute a production system unmatched in its "
"integration. They supply content&mdash;Fox movies &hellip; Fox TV shows "
"&hellip; Fox-controlled sports broadcasts, plus newspapers and books. They "
"sell the content to the public and to advertisers&mdash;in newspapers, on "
"the broadcast network, on the cable channels. And they operate the physical "
"distribution system through which the content reaches the "
"customers. Murdoch's satellite systems now distribute News Corp. content in "
"Europe and Asia; if Murdoch becomes DirecTV's largest single owner, that "
"system will serve the same function in the United States.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7937
msgid ""
"The pattern with Murdoch is the pattern of modern media. Not just large "
"companies owning many radio stations, but a few companies owning as many "
"outlets of media as possible. A picture describes this pattern better than a "
"thousand words could do:"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:7943
msgid "Pattern of modern media ownership."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:7944
msgid "<graphic fileref=\"images/1761.png\"></graphic>"
msgstr ""

#.  PAGE BREAK 175 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7948
msgid ""
"Does this concentration matter? Will it affect what is made, or what is "
"distributed? Or is it merely a more efficient way to produce and distribute "
"content?"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7953
msgid ""
"My view was that concentration wouldn't matter. I thought it was nothing "
"more than a more efficient financial structure. But now, after reading and "
"listening to a barrage of creators try to convince me to the contrary, I am "
"beginning to change my mind."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7959
msgid ""
"Here's a representative story that begins to suggest how this integration "
"may matter."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:7962
msgid "Lear, Norman"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:7964 freeculture.xml:8027
msgid "All in the Family"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7966
msgid ""
"In 1969, Norman Lear created a pilot for <citetitle>All in the "
"Family</citetitle>. He took the pilot to ABC. The network didn't like it. It "
"was too edgy, they told Lear. Make it again. Lear made a second pilot, more "
"edgy than the first. ABC was exasperated. You're missing the point, they "
"told Lear.  We wanted less edgy, not more."
msgstr ""

#.  f29 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7978
msgid ""
"Leonard Hill, \"The Axis of Access,\" remarks before Weidenbaum Center "
"Forum, \"Entertainment Economics: The Movie Industry,\" St. Louis, Missouri, "
"3 April 2003 (transcript of prepared remarks available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #28</ulink>; for the Lear story, "
"not included in the prepared remarks, see <ulink "
"url=\"http://free-culture.cc/notes/\">link #29</ulink>)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7973
msgid ""
"Rather than comply, Lear simply took the show elsewhere. CBS was happy to "
"have the series; ABC could not stop Lear from walking.  The copyrights that "
"Lear held assured an independence from network control.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 176 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7989
msgid ""
"The network did not control those copyrights because the law forbade the "
"networks from controlling the content they syndicated. The law required a "
"separation between the networks and the content producers; that separation "
"would guarantee Lear freedom. And as late as 1992, because of these rules, "
"the vast majority of prime time television&mdash;75 percent of it&mdash;was "
"\"independent\" of the networks."
msgstr ""

#.  f30 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:8008
msgid ""
"NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media "
"Ownership Before the Senate Commerce Committee, 108th Cong., 1st "
"sess. (2003) (testimony of Gene Kimmelman on behalf of Consumers Union and "
"the Consumer Federation of America), available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #30</ulink>. Kimmelman quotes "
"Victoria Riskin, president of Writers Guild of America, West, in her Remarks "
"at FCC En Banc Hearing, Richmond, Virginia, 27 February 2003."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7998
msgid ""
"In 1994, the FCC abandoned the rules that required this independence.  After "
"that change, the networks quickly changed the balance.  In 1985, there were "
"twenty-five independent television production studios; in 2002, only five "
"independent television studios remained. \"In 1992, only 15 percent of new "
"series were produced for a network by a company it controlled. Last year, "
"the percentage of shows produced by controlled companies more than "
"quintupled to 77 percent.\" \"In 1992, 16 new series were produced "
"independently of conglomerate control, last year there was "
"one.\"<placeholder type=\"footnote\" id=\"0\"/> In 2002, 75 percent of prime "
"time television was owned by the networks that ran it. \"In the ten-year "
"period between 1992 and 2002, the number of prime time television hours per "
"week produced by network studios increased over 200%, whereas the number of "
"prime time television hours per week produced by independent studios "
"decreased 63%.\"<placeholder type=\"footnote\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8029
msgid ""
"Today, another Norman Lear with another <citetitle>All in the "
"Family</citetitle> would find that he had the choice either to make the show "
"less edgy or to be fired: The content of any show developed for a network is "
"increasingly owned by the network."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:8038
msgid "Diller, Barry"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:8039
msgid "Moyers, Bill"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8035
msgid ""
"While the number of channels has increased dramatically, the ownership of "
"those channels has narrowed to an ever smaller and smaller few. As Barry "
"Diller said to Bill Moyers, <placeholder type=\"indexterm\" id=\"0\"/> "
"<placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#.  f32 
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:8052
msgid ""
"\"Barry Diller Takes on Media Deregulation,\" <citetitle>Now with Bill "
"Moyers</citetitle>, Bill Moyers, 25 April 2003, edited transcript available "
"at <ulink url=\"http://free-culture.cc/notes/\">link #31</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:8043
msgid ""
"Well, if you have companies that produce, that finance, that air on their "
"channel and then distribute worldwide everything that goes through their "
"controlled distribution system, then what you get is fewer and fewer actual "
"voices participating in the process. [We u]sed to have dozens and dozens of "
"thriving independent production companies producing television programs. Now "
"you have less than a handful.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8059
msgid ""
"This narrowing has an effect on what is produced. The product of such large "
"and concentrated networks is increasingly homogenous.  Increasingly "
"safe. Increasingly sterile. The product of news shows from networks like "
"this is increasingly tailored to the message the network wants to "
"convey. This is not the communist party, though from the inside, it must "
"feel a bit like the communist party. No one can question without risk of "
"consequence&mdash;not necessarily banishment to Siberia, but punishment "
"nonetheless. Independent, critical, different views are quashed. This is not "
"the environment for a democracy."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8070
msgid "Clark, Kim B."
msgstr ""

#.  f33 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:8079
msgid ""
"Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The "
"Revolutionary National Bestseller that Changed the Way We Do "
"Business</citetitle> (Cambridge: Harvard Business School Press, "
"1997). Christensen acknowledges that the idea was first suggested by Dean "
"Kim Clark. See Kim B. Clark, \"The Interaction of Design Hierarchies and "
"Market Concepts in Technological Evolution,\" <citetitle>Research "
"Policy</citetitle> 14 (1985): 235&ndash;51. For a more recent study, see "
"Richard Foster and Sarah Kaplan, <citetitle>Creative Destruction: Why "
"Companies That Are Built to Last Underperform the Market&mdash;and How to "
"Successfully Transform Them</citetitle> (New York: Currency/Doubleday, "
"2001)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8072
msgid ""
"Economics itself offers a parallel that explains why this integration "
"affects creativity. Clay Christensen has written about the \"Innovator's "
"Dilemma\": the fact that large traditional firms find it rational to ignore "
"new, breakthrough technologies that compete with their core business.  The "
"same analysis could help explain why large, traditional media companies "
"would find it rational to ignore new cultural trends.<placeholder "
"type=\"footnote\" id=\"0\"/> Lumbering giants not only don't, but should "
"not, sprint. Yet if the field is only open to the giants, there will be far "
"too little sprinting.  <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8096
msgid ""
"I don't think we know enough about the economics of the media market to say "
"with certainty what concentration and integration will do. The efficiencies "
"are important, and the effect on culture is hard to measure."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8102
msgid ""
"But there is a quintessentially obvious example that does strongly suggest "
"the concern."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8106
msgid ""
"In addition to the copyright wars, we're in the middle of the drug "
"wars. Government policy is strongly directed against the drug cartels; "
"criminal and civil courts are filled with the consequences of this battle."
msgstr ""

#.  PAGE BREAK 178 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8111
msgid ""
"Let me hereby disqualify myself from any possible appointment to any "
"position in government by saying I believe this war is a profound mistake. I "
"am not pro drugs. Indeed, I come from a family once wrecked by "
"drugs&mdash;though the drugs that wrecked my family were all quite legal. I "
"believe this war is a profound mistake because the collateral damage from it "
"is so great as to make waging the war insane.  When you add together the "
"burdens on the criminal justice system, the desperation of generations of "
"kids whose only real economic opportunities are as drug warriors, the "
"queering of constitutional protections because of the constant surveillance "
"this war requires, and, most profoundly, the total destruction of the legal "
"systems of many South American nations because of the power of the local "
"drug cartels, I find it impossible to believe that the marginal benefit in "
"reduced drug consumption by Americans could possibly outweigh these costs."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8130
msgid ""
"You may not be convinced. That's fine. We live in a democracy, and it is "
"through votes that we are to choose policy. But to do that, we depend "
"fundamentally upon the press to help inform Americans about these issues."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8136
msgid ""
"Beginning in 1998, the Office of National Drug Control Policy launched a "
"media campaign as part of the \"war on drugs.\" The campaign produced scores "
"of short film clips about issues related to illegal drugs. In one series "
"(the Nick and Norm series) two men are in a bar, discussing the idea of "
"legalizing drugs as a way to avoid some of the collateral damage from the "
"war. One advances an argument in favor of drug legalization. The other "
"responds in a powerful and effective way against the argument of the "
"first. In the end, the first guy changes his mind (hey, it's "
"television). The plug at the end is a damning attack on the pro-legalization "
"campaign."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8148
msgid ""
"Fair enough. It's a good ad. Not terribly misleading. It delivers its "
"message well. It's a fair and reasonable message."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8152
msgid ""
"But let's say you think it is a wrong message, and you'd like to run a "
"countercommercial. Say you want to run a series of ads that try to "
"demonstrate the extraordinary collateral harm that comes from the drug "
"war. Can you do it?"
msgstr ""

#.  PAGE BREAK 179 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8158
msgid ""
"Well, obviously, these ads cost lots of money. Assume you raise the "
"money. Assume a group of concerned citizens donates all the money in the "
"world to help you get your message out. Can you be sure your message will be "
"heard then?"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:8200
msgid "Comcast"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:8201
msgid "Marijuana Policy Project"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:8202
msgid "NBC"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:8203
msgid "WJOA"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:8204
msgid "WRC"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:8175
msgid ""
"The Marijuana Policy Project, in February 2003, sought to place ads that "
"directly responded to the Nick and Norm series on stations within the "
"Washington, D.C., area. Comcast rejected the ads as \"against [their] "
"policy.\" The local NBC affiliate, WRC, rejected the ads without reviewing "
"them. The local ABC affiliate, WJOA, originally agreed to run the ads and "
"accepted payment to do so, but later decided not to run the ads and returned "
"the collected fees. Interview with Neal Levine, 15 October 2003.  These "
"restrictions are, of course, not limited to drug policy. See, for example, "
"Nat Ives, \"On the Issue of an Iraq War, Advocacy Ads Meet with Rejection "
"from TV Networks,\" <citetitle>New York Times</citetitle>, 13 March 2003, "
"C4.  Outside of election-related air time there is very little that the FCC "
"or the courts are willing to do to even the playing field. For a general "
"overview, see Rhonda Brown, \"Ad Hoc Access: The Regulation of Editorial "
"Advertising on Television and Radio,\" <citetitle>Yale Law and Policy "
"Review</citetitle> 6 (1988): 449&ndash;79, and for a more recent summary of "
"the stance of the FCC and the courts, see <citetitle>Radio-Television News "
"Directors Association</citetitle> v. <citetitle>FCC</citetitle>, 184 F. 3d "
"872 (D.C. Cir. 1999). Municipal authorities exercise the same authority as "
"the networks. In a recent example from San Francisco, the San Francisco "
"transit authority rejected an ad that criticized its Muni diesel "
"buses. Phillip Matier and Andrew Ross, \"Antidiesel Group Fuming After Muni "
"Rejects Ad,\" SFGate.com, 16 June 2003, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #32</ulink>. The ground was that "
"the criticism was \"too controversial.\" <placeholder type=\"indexterm\" "
"id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> <placeholder "
"type=\"indexterm\" id=\"2\"/> <placeholder type=\"indexterm\" id=\"3\"/> "
"<placeholder type=\"indexterm\" id=\"4\"/> <placeholder type=\"indexterm\" "
"id=\"5\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8165
msgid ""
"No. You cannot. Television stations have a general policy of avoiding "
"\"controversial\" ads. Ads sponsored by the government are deemed "
"uncontroversial; ads disagreeing with the government are controversial.  "
"This selectivity might be thought inconsistent with the First Amendment, but "
"the Supreme Court has held that stations have the right to choose what they "
"run. Thus, the major channels of commercial media will refuse one side of a "
"crucial debate the opportunity to present its case.  And the courts will "
"defend the rights of the stations to be this biased.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8208
msgid ""
"I'd be happy to defend the networks' rights, as well&mdash;if we lived in a "
"media market that was truly diverse. But concentration in the media throws "
"that condition into doubt. If a handful of companies control access to the "
"media, and that handful of companies gets to decide which political "
"positions it will allow to be promoted on its channels, then in an obvious "
"and important way, concentration matters. You might like the positions the "
"handful of companies selects. But you should not like a world in which a "
"mere few get to decide which issues the rest of us get to know about."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:8220
msgid "Together"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8222
msgid ""
"There is something innocent and obvious about the claim of the copyright "
"warriors that the government should \"protect my property.\" In the "
"abstract, it is obviously true and, ordinarily, totally harmless. No sane "
"sort who is not an anarchist could disagree."
msgstr ""

#.  PAGE BREAK 180 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8228
msgid ""
"But when we see how dramatically this \"property\" has changed&mdash; when "
"we recognize how it might now interact with both technology and markets to "
"mean that the effective constraint on the liberty to cultivate our culture "
"is dramatically different&mdash;the claim begins to seem less innocent and "
"obvious. Given (1) the power of technology to supplement the law's control, "
"and (2) the power of concentrated markets to weaken the opportunity for "
"dissent, if strictly enforcing the massively expanded \"property\" rights "
"granted by copyright fundamentally changes the freedom within this culture "
"to cultivate and build upon our past, then we have to ask whether this "
"property should be redefined."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8244
msgid ""
"Not starkly. Or absolutely. My point is not that we should abolish copyright "
"or go back to the eighteenth century. That would be a total mistake, "
"disastrous for the most important creative enterprises within our culture "
"today."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8250
msgid ""
"But there is a space between zero and one, Internet culture "
"notwithstanding.  And these massive shifts in the effective power of "
"copyright regulation, tied to increased concentration of the content "
"industry and resting in the hands of technology that will increasingly "
"enable control over the use of culture, should drive us to consider whether "
"another adjustment is called for. Not an adjustment that increases "
"copyright's power. Not an adjustment that increases its term. Rather, an "
"adjustment to restore the balance that has traditionally defined copyright's "
"regulation&mdash;a weakening of that regulation, to strengthen creativity."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8262
msgid ""
"Copyright law has not been a rock of Gibraltar. It's not a set of constant "
"commitments that, for some mysterious reason, teenagers and geeks now "
"flout. Instead, copyright power has grown dramatically in a short period of "
"time, as the technologies of distribution and creation have changed and as "
"lobbyists have pushed for more control by copyright holders. Changes in the "
"past in response to changes in technology suggest that we may well need "
"similar changes in the future. And these changes have to be "
"<emphasis>reductions</emphasis> in the scope of copyright, in response to "
"the extraordinary increase in control that technology and the market enable."
msgstr ""

#.  PAGE BREAK 181 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8274
msgid ""
"For the single point that is lost in this war on pirates is a point that we "
"see only after surveying the range of these changes. When you add together "
"the effect of changing law, concentrated markets, and changing technology, "
"together they produce an astonishing conclusion: <emphasis>Never in our "
"history have fewer had a legal right to control more of the development of "
"our culture than now</emphasis>."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:8298
msgid ""
"Siva Vaidhyanathan captures a similar point in his \"four surrenders\" of "
"copyright law in the digital age. See Vaidhyanathan, 159&ndash;60.  "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8283
msgid ""
"Not when copyrights were perpetual, for when copyrights were perpetual, they "
"affected only that precise creative work. Not when only publishers had the "
"tools to publish, for the market then was much more diverse. Not when there "
"were only three television networks, for even then, newspapers, film "
"studios, radio stations, and publishers were independent of the "
"networks. <emphasis>Never</emphasis> has copyright protected such a wide "
"range of rights, against as broad a range of actors, for a term that was "
"remotely as long. This form of regulation&mdash;a tiny regulation of a tiny "
"part of the creative energy of a nation at the founding&mdash;is now a "
"massive regulation of the overall creative process. Law plus technology plus "
"the market now interact to turn this historically benign regulation into the "
"most significant regulation of culture that our free society has "
"known.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8304
msgid "This has been a long chapter. Its point can now be briefly stated."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8307
msgid ""
"At the start of this book, I distinguished between commercial and "
"noncommercial culture. In the course of this chapter, I have distinguished "
"between copying a work and transforming it. We can now combine these two "
"distinctions and draw a clear map of the changes that copyright law has "
"undergone.  In 1790, the law looked like this:"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
#: freeculture.xml:8319 freeculture.xml:8356
msgid "PUBLISH"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
#: freeculture.xml:8320 freeculture.xml:8357 freeculture.xml:8395 freeculture.xml:8427
msgid "TRANSFORM"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:8325 freeculture.xml:8362 freeculture.xml:8400 freeculture.xml:8432
msgid "Commercial"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:8326 freeculture.xml:8363 freeculture.xml:8364 freeculture.xml:8401 freeculture.xml:8402 freeculture.xml:8433 freeculture.xml:8434 freeculture.xml:8438 freeculture.xml:8439
msgid "&copy;"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:8327 freeculture.xml:8331 freeculture.xml:8332 freeculture.xml:8368 freeculture.xml:8369 freeculture.xml:8407
msgid "Free"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:8330 freeculture.xml:8367 freeculture.xml:8405 freeculture.xml:8437
msgid "Noncommercial"
msgstr ""

#.  PAGE BREAK 182 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8339
msgid ""
"The act of publishing a map, chart, and book was regulated by copyright "
"law. Nothing else was. Transformations were free. And as copyright attached "
"only with registration, and only those who intended to benefit commercially "
"would register, copying through publishing of noncommercial work was also "
"free."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8348
msgid "By the end of the nineteenth century, the law had changed to this:"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8376
msgid ""
"Derivative works were now regulated by copyright law&mdash;if published, "
"which again, given the economics of publishing at the time, means if offered "
"commercially. But noncommercial publishing and transformation were still "
"essentially free."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8382
msgid ""
"In 1909 the law changed to regulate copies, not publishing, and after this "
"change, the scope of the law was tied to technology. As the technology of "
"copying became more prevalent, the reach of the law expanded.  Thus by 1975, "
"as photocopying machines became more common, we could say the law began to "
"look like this:"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
#: freeculture.xml:8394 freeculture.xml:8426
msgid "COPY"
msgstr ""

#. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:8406
msgid "&copy;/Free"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8414
msgid ""
"The law was interpreted to reach noncommercial copying through, say, copy "
"machines, but still much of copying outside of the commercial market "
"remained free. But the consequence of the emergence of digital technologies, "
"especially in the context of a digital network, means that the law now looks "
"like this:"
msgstr ""

#.  PAGE BREAK 183 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8446
msgid ""
"Every realm is governed by copyright law, whereas before most creativity was "
"not. The law now regulates the full range of creativity&mdash; commercial or "
"not, transformative or not&mdash;with the same rules designed to regulate "
"commercial publishers."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8454
msgid ""
"Obviously, copyright law is not the enemy. The enemy is regulation that does "
"no good. So the question that we should be asking just now is whether "
"extending the regulations of copyright law into each of these domains "
"actually does any good."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8460
msgid ""
"I have no doubt that it does good in regulating commercial copying.  But I "
"also have no doubt that it does more harm than good when regulating (as it "
"regulates just now) noncommercial copying and, especially, noncommercial "
"transformation. And increasingly, for the reasons sketched especially in "
"chapters <xref xrefstyle=\"select: labelnumber\" linkend=\"recorders\"/> and "
"<xref xrefstyle=\"select: labelnumber\" linkend=\"transformers\"/>, one "
"might well wonder whether it does more harm than good for commercial "
"transformation.  More commercial transformative work would be created if "
"derivative rights were more sharply restricted."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:8484
msgid "legal realist movement"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:8478
msgid ""
"It was the single most important contribution of the legal realist movement "
"to demonstrate that all property rights are always crafted to balance public "
"and private interests. See Thomas C. Grey, \"The Disintegration of "
"Property,\" in <citetitle>Nomos XXII: Property</citetitle>, J. Roland "
"Pennock and John W.  Chapman, eds. (New York: New York University Press, "
"1980).  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8472
msgid ""
"The issue is therefore not simply whether copyright is property. Of course "
"copyright is a kind of \"property,\" and of course, as with any property, "
"the state ought to protect it. But first impressions notwithstanding, "
"historically, this property right (as with all property rights<placeholder "
"type=\"footnote\" id=\"0\"/>)  has been crafted to balance the important "
"need to give authors and artists incentives with the equally important need "
"to assure access to creative work. This balance has always been struck in "
"light of new technologies.  And for almost half of our tradition, the "
"\"copyright\" did not control <emphasis>at all</emphasis> the freedom of "
"others to build upon or transform a creative work. American culture was born "
"free, and for almost 180 years our country consistently protected a vibrant "
"and rich free culture."
msgstr ""

#.  PAGE BREAK 184 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8496
msgid ""
"We achieved that free culture because our law respected important limits on "
"the scope of the interests protected by \"property.\" The very birth of "
"\"copyright\" as a statutory right recognized those limits, by granting "
"copyright owners protection for a limited time only (the story of chapter "
"6). The tradition of \"fair use\" is animated by a similar concern that is "
"increasingly under strain as the costs of exercising any fair use right "
"become unavoidably high (the story of chapter 7). Adding statutory rights "
"where markets might stifle innovation is another familiar limit on the "
"property right that copyright is (chapter 8). And granting archives and "
"libraries a broad freedom to collect, claims of property notwithstanding, is "
"a crucial part of guaranteeing the soul of a culture (chapter 9). Free "
"cultures, like free markets, are built with property. But the nature of the "
"property that builds a free culture is very different from the extremist "
"vision that dominates the debate today."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8515
msgid ""
"Free culture is increasingly the casualty in this war on piracy. In response "
"to a real, if not yet quantified, threat that the technologies of the "
"Internet present to twentieth-century business models for producing and "
"distributing culture, the law and technology are being transformed in a way "
"that will undermine our tradition of free culture. The property right that "
"is copyright is no longer the balanced right that it was, or was intended to "
"be. The property right that is copyright has become unbalanced, tilted "
"toward an extreme. The opportunity to create and transform becomes weakened "
"in a world in which creation requires permission and creativity must check "
"with a lawyer."
msgstr ""

#. type: Content of: <book><part><title>
#: freeculture.xml:8532
msgid "PUZZLES"
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:8536
msgid "CHAPTER ELEVEN: Chimera"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:8538
msgid "chimeras"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:8541
msgid "Wells, H. G."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:8544
msgid "&quot;Country of the Blind, The&quot; (Wells)"
msgstr ""

#.  f1. 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:8552
msgid ""
"H. G. Wells, \"The Country of the Blind\" (1904, 1911). See H. G. Wells, "
"<citetitle>The Country of the Blind and Other Stories</citetitle>, Michael "
"Sherborne, ed. (New York: Oxford University Press, 1996)."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8548
msgid ""
"In a well-known short story by H. G. Wells, a mountain climber named Nunez "
"trips (literally, down an ice slope) into an unknown and isolated valley in "
"the Peruvian Andes.<placeholder type=\"footnote\" id=\"0\"/> The valley is "
"extraordinarily beautiful, with \"sweet water, pasture, an even climate, "
"slopes of rich brown soil with tangles of a shrub that bore an excellent "
"fruit.\" But the villagers are all blind. Nunez takes this as an "
"opportunity. \"In the Country of the Blind,\" he tells himself, \"the "
"One-Eyed Man is King.\" So he resolves to live with the villagers to explore "
"life as a king."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8564
msgid ""
"Things don't go quite as he planned. He tries to explain the idea of sight "
"to the villagers. They don't understand. He tells them they are \"blind.\" "
"They don't have the word <citetitle>blind</citetitle>. They think he's just "
"thick.  Indeed, as they increasingly notice the things he can't do (hear the "
"sound of grass being stepped on, for example), they increasingly try to "
"control him. He, in turn, becomes increasingly frustrated. \"`You don't "
"understand,' he cried, in a voice that was meant to be great and resolute, "
"and which broke. `You are blind and I can see. Leave me alone!'\""
msgstr ""

#.  PAGE BREAK 187 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8576
msgid ""
"The villagers don't leave him alone. Nor do they see (so to speak) the "
"virtue of his special power. Not even the ultimate target of his affection, "
"a young woman who to him seems \"the most beautiful thing in the whole of "
"creation,\" understands the beauty of sight. Nunez's description of what he "
"sees \"seemed to her the most poetical of fancies, and she listened to his "
"description of the stars and the mountains and her own sweet white-lit "
"beauty as though it was a guilty indulgence.\" \"She did not believe,\" "
"Wells tells us, and \"she could only half understand, but she was "
"mysteriously delighted.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8587
msgid ""
"When Nunez announces his desire to marry his \"mysteriously delighted\" "
"love, the father and the village object. \"You see, my dear,\" her father "
"instructs, \"he's an idiot. He has delusions. He can't do anything right.\" "
"They take Nunez to the village doctor."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8593
msgid ""
"After a careful examination, the doctor gives his opinion. \"His brain is "
"affected,\" he reports."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8597
msgid ""
"\"What affects it?\" the father asks.  \"Those queer things that are called "
"the eyes &hellip; are diseased &hellip; in such a way as to affect his "
"brain.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8602
msgid ""
"The doctor continues: \"I think I may say with reasonable certainty that in "
"order to cure him completely, all that we need to do is a simple and easy "
"surgical operation&mdash;namely, to remove these irritant bodies [the "
"eyes].\""
msgstr ""

#.  PAGE BREAK 188 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8608
msgid ""
"\"Thank Heaven for science!\" says the father to the doctor. They inform "
"Nunez of this condition necessary for him to be allowed his bride.  (You'll "
"have to read the original to learn what happens in the end. I believe in "
"free culture, but never in giving away the end of a story.)  It sometimes "
"happens that the eggs of twins fuse in the mother's womb. That fusion "
"produces a \"chimera.\" A chimera is a single creature with two sets of "
"DNA. The DNA in the blood, for example, might be different from the DNA of "
"the skin. This possibility is an underused plot for murder mysteries. \"But "
"the DNA shows with 100 percent certainty that she was not the person whose "
"blood was at the scene. &hellip;\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8625
msgid ""
"Before I had read about chimeras, I would have said they were impossible.  A "
"single person can't have two sets of DNA. The very idea of DNA is that it is "
"the code of an individual. Yet in fact, not only can two individuals have "
"the same set of DNA (identical twins), but one person can have two different "
"sets of DNA (a chimera). Our understanding of a \"person\" should reflect "
"this reality."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8633
msgid ""
"The more I work to understand the current struggle over copyright and "
"culture, which I've sometimes called unfairly, and sometimes not unfairly "
"enough, \"the copyright wars,\" the more I think we're dealing with a "
"chimera. For example, in the battle over the question \"What is p2p file "
"sharing?\" both sides have it right, and both sides have it wrong.  One side "
"says, \"File sharing is just like two kids taping each others' "
"records&mdash;the sort of thing we've been doing for the last thirty years "
"without any question at all.\" That's true, at least in part. When I tell my "
"best friend to try out a new CD that I've bought, but rather than just send "
"the CD, I point him to my p2p server, that is, in all relevant respects, "
"just like what every executive in every recording company no doubt did as a "
"kid: sharing music."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8647
msgid ""
"But the description is also false in part. For when my p2p server is on a "
"p2p network through which anyone can get access to my music, then sure, my "
"friends can get access, but it stretches the meaning of \"friends\" beyond "
"recognition to say \"my ten thousand best friends\" can get access. Whether "
"or not sharing my music with my best friend is what \"we have always been "
"allowed to do,\" we have not always been allowed to share music with \"our "
"ten thousand best friends.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8656
msgid ""
"Likewise, when the other side says, \"File sharing is just like walking into "
"a Tower Records and taking a CD off the shelf and walking out with it,\" "
"that's true, at least in part. If, after Lyle Lovett (finally) releases a "
"new album, rather than buying it, I go to Kazaa and find a free copy to "
"take, that is very much like stealing a copy from Tower.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 189 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8667
msgid ""
"But it is not quite stealing from Tower. After all, when I take a CD from "
"Tower Records, Tower has one less CD to sell. And when I take a CD from "
"Tower Records, I get a bit of plastic and a cover, and something to show on "
"my shelves. (And, while we're at it, we could also note that when I take a "
"CD from Tower Records, the maximum fine that might be imposed on me, under "
"California law, at least, is $1,000.  According to the RIAA, by contrast, if "
"I download a ten-song CD, I'm liable for $1,500,000 in damages.)"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8677
msgid ""
"The point is not that it is as neither side describes. The point is that it "
"is both&mdash;both as the RIAA describes it and as Kazaa describes it. It is "
"a chimera. And rather than simply denying what the other side asserts, we "
"need to begin to think about how we should respond to this chimera. What "
"rules should govern it?"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:8723
msgid "Conyers, John, Jr."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:8724 freeculture.xml:9427
msgid "Berman, Howard L."
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:8693
msgid ""
"For an excellent summary, see the report prepared by GartnerG2 and the "
"Berkman Center for Internet and Society at Harvard Law School, \"Copyright "
"and Digital Media in a Post-Napster World,\" 27 June 2003, available at "
"<ulink url=\"http://free-culture.cc/notes/\">link #33</ulink>. Reps. John "
"Conyers Jr. (D-Mich.) and Howard L. Berman (D-Calif.) have introduced a bill "
"that would treat unauthorized on-line copying as a felony offense with "
"punishments ranging as high as five years imprisonment; see Jon Healey, "
"\"House Bill Aims to Up Stakes on Piracy,\" <citetitle>Los Angeles "
"Times</citetitle>, 17 July 2003, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #34</ulink>. Civil penalties are "
"currently set at $150,000 per copied song. For a recent (and unsuccessful) "
"legal challenge to the RIAA's demand that an ISP reveal the identity of a "
"user accused of sharing more than 600 songs through a family computer, see "
"<citetitle>RIAA</citetitle> v. <citetitle>Verizon Internet Services (In "
"re. Verizon Internet Services)</citetitle>, 240 F.  Supp. 2d 24 "
"(D.D.C. 2003). Such a user could face liability ranging as high as $90 "
"million. Such astronomical figures furnish the RIAA with a powerful arsenal "
"in its prosecution of file sharers. Settlements ranging from $12,000 to "
"$17,500 for four students accused of heavy file sharing on university "
"networks must have seemed a mere pittance next to the $98 billion the RIAA "
"could seek should the matter proceed to court. See Elizabeth Young, "
"\"Downloading Could Lead to Fines,\" redandblack.com, August 2003, available "
"at <ulink url=\"http://free-culture.cc/notes/\">link #35</ulink>. For an "
"example of the RIAA's targeting of student file sharing, and of the "
"subpoenas issued to universities to reveal student file-sharer identities, "
"see James Collins, \"RIAA Steps Up Bid to Force BC, MIT to Name Students,\" "
"<citetitle>Boston Globe</citetitle>, 8 August 2003, D3, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #36</ulink>.  <placeholder "
"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8684
msgid ""
"We could respond by simply pretending that it is not a chimera. We could, "
"with the RIAA, decide that every act of file sharing should be a felony. We "
"could prosecute families for millions of dollars in damages just because "
"file sharing occurred on a family computer. And we can get universities to "
"monitor all computer traffic to make sure that no computer is used to commit "
"this crime. These responses might be extreme, but each of them has either "
"been proposed or actually implemented.<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8730
msgid ""
"Alternatively, we could respond to file sharing the way many kids act as "
"though we've responded. We could totally legalize it. Let there be no "
"copyright liability, either civil or criminal, for making copyrighted "
"content available on the Net. Make file sharing like gossip: regulated, if "
"at all, by social norms but not by law."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8737
msgid ""
"Either response is possible. I think either would be a mistake.  Rather than "
"embrace one of these two extremes, we should embrace something that "
"recognizes the truth in both. And while I end this book with a sketch of a "
"system that does just that, my aim in the next chapter is to show just how "
"awful it would be for us to adopt the zero-tolerance extreme. I believe "
"<emphasis>either</emphasis> extreme would be worse than a reasonable "
"alternative.  But I believe the zero-tolerance solution would be the worse "
"of the two extremes."
msgstr ""

#.  PAGE BREAK 190 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8749
msgid ""
"Yet zero tolerance is increasingly our government's policy. In the middle of "
"the chaos that the Internet has created, an extraordinary land grab is "
"occurring. The law and technology are being shifted to give content holders "
"a kind of control over our culture that they have never had before. And in "
"this extremism, many an opportunity for new innovation and new creativity "
"will be lost."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8757
msgid ""
"I'm not talking about the opportunities for kids to \"steal\" music. My "
"focus instead is the commercial and cultural innovation that this war will "
"also kill. We have never seen the power to innovate spread so broadly among "
"our citizens, and we have just begun to see the innovation that this power "
"will unleash. Yet the Internet has already seen the passing of one cycle of "
"innovation around technologies to distribute content. The law is responsible "
"for this passing. As the vice president for global public policy at one of "
"these new innovators, eMusic.com, put it when criticizing the DMCA's added "
"protection for copyrighted material,"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:8770
msgid ""
"eMusic opposes music piracy. We are a distributor of copyrighted material, "
"and we want to protect those rights."
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:8774
msgid ""
"But building a technology fortress that locks in the clout of the major "
"labels is by no means the only way to protect copyright interests, nor is it "
"necessarily the best. It is simply too early to answer that question. Market "
"forces operating naturally may very well produce a totally different "
"industry model."
msgstr ""

#.  f3. 
#. type: Content of: <book><part><chapter><blockquote><para><footnote><para>
#: freeculture.xml:8791
msgid ""
"WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital "
"Entertainment on the Internet and Other Media: Hearing Before the "
"Subcommittee on Telecommunications, Trade, and Consumer Protection, House "
"Committee on Commerce, 106th Cong. 29 (1999) (statement of Peter Harter, "
"vice president, Global Public Policy and Standards, EMusic.com), available "
"in LEXIS, Federal Document Clearing House Congressional Testimony File."
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:8781
msgid ""
"This is a critical point. The choices that industry sectors make with "
"respect to these systems will in many ways directly shape the market for "
"digital media and the manner in which digital media are distributed. This in "
"turn will directly influence the options that are available to consumers, "
"both in terms of the ease with which they will be able to access digital "
"media and the equipment that they will require to do so. Poor choices made "
"this early in the game will retard the growth of this market, hurting "
"everyone's interests.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8805 freeculture.xml:9155
msgid "Vivendi Universal"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8802
msgid ""
"In April 2001, eMusic.com was purchased by Vivendi Universal, one of \"the "
"major labels.\" Its position on these matters has now changed.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8808
msgid ""
"Reversing our tradition of tolerance now will not merely quash piracy. It "
"will sacrifice values that are important to this culture, and will kill "
"opportunities that could be extraordinarily valuable."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:8816
msgid "CHAPTER TWELVE: Harms"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8818
msgid ""
"To fight \"piracy,\" to protect \"property,\" the content industry has "
"launched a war. Lobbying and lots of campaign contributions have now brought "
"the government into this war. As with any war, this one will have both "
"direct and collateral damage. As with any war of prohibition, these damages "
"will be suffered most by our own people."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8825
msgid ""
"My aim so far has been to describe the consequences of this war, in "
"particular, the consequences for \"free culture.\" But my aim now is to "
"extend this description of consequences into an argument. Is this war "
"justified?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8831
msgid ""
"In my view, it is not. There is no good reason why this time, for the first "
"time, the law should defend the old against the new, just when the power of "
"the property called \"intellectual property\" is at its greatest in our "
"history."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8839
msgid ""
"Yet \"common sense\" does not see it this way. Common sense is still on the "
"side of the Causbys and the content industry. The extreme claims of control "
"in the name of property still resonate; the uncritical rejection of "
"\"piracy\" still has play."
msgstr ""

#.  PAGE BREAK 193 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:8846
msgid ""
"There will be many consequences of continuing this war. I want to describe "
"just three. All three might be said to be unintended. I am quite confident "
"the third is unintended. I'm less sure about the first two. The first two "
"protect modern RCAs, but there is no Howard Armstrong in the wings to fight "
"today's monopolists of culture."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:8853
msgid "Constraining Creators"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8855
msgid ""
"In the next ten years we will see an explosion of digital technologies.  "
"These technologies will enable almost anyone to capture and share "
"content. Capturing and sharing content, of course, is what humans have done "
"since the dawn of man. It is how we learn and communicate. But capturing and "
"sharing through digital technology is different. The fidelity and power are "
"different. You could send an e-mail telling someone about a joke you saw on "
"Comedy Central, or you could send the clip. You could write an essay about "
"the inconsistencies in the arguments of the politician you most love to "
"hate, or you could make a short film that puts statement against "
"statement. You could write a poem to express your love, or you could weave "
"together a string&mdash;a mash-up&mdash; of songs from your favorite artists "
"in a collage and make it available on the Net."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8870
msgid ""
"This digital \"capturing and sharing\" is in part an extension of the "
"capturing and sharing that has always been integral to our culture, and in "
"part it is something new. It is continuous with the Kodak, but it explodes "
"the boundaries of Kodak-like technologies. The technology of digital "
"\"capturing and sharing\" promises a world of extraordinarily diverse "
"creativity that can be easily and broadly shared. And as that creativity is "
"applied to democracy, it will enable a broad range of citizens to use "
"technology to express and criticize and contribute to the culture all "
"around."
msgstr ""

#.  PAGE BREAK 194 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8881
msgid ""
"Technology has thus given us an opportunity to do something with culture "
"that has only ever been possible for individuals in small groups, isolated "
"from others. Think about an old man telling a story to a collection of "
"neighbors in a small town. Now imagine that same storytelling extended "
"across the globe."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8891
msgid ""
"Yet all this is possible only if the activity is presumptively legal. In the "
"current regime of legal regulation, it is not. Forget file sharing for a "
"moment. Think about your favorite amazing sites on the Net. Web sites that "
"offer plot summaries from forgotten television shows; sites that catalog "
"cartoons from the 1960s; sites that mix images and sound to criticize "
"politicians or businesses; sites that gather newspaper articles on remote "
"topics of science or culture. There is a vast amount of creative work spread "
"across the Internet. But as the law is currently crafted, this work is "
"presumptively illegal."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:8919 freeculture.xml:8940
msgid "Worldcom"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:8914
msgid ""
"See Lynne W. Jeter, <citetitle>Disconnected: Deceit and Betrayal at "
"WorldCom</citetitle> (Hoboken, N.J.: John Wiley &amp; Sons, 2003), 176, 204; "
"for details of the settlement, see MCI press release, \"MCI Wins "
"U.S. District Court Approval for SEC Settlement\" (7 July 2003), available "
"at <ulink url=\"http://free-culture.cc/notes/\">link #37</ulink>.  "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:8935
msgid "Bush, George W."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:8926
msgid ""
"The bill, modeled after California's tort reform model, was passed in the "
"House of Representatives but defeated in a Senate vote in July 2003. For an "
"overview, see Tanya Albert, \"Measure Stalls in Senate: `We'll Be Back,' Say "
"Tort Reformers,\" amednews.com, 28 July 2003, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #38</ulink>, and \"Senate Turns "
"Back Malpractice Caps,\" CBSNews.com, 9 July 2003, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #39</ulink>. President Bush has "
"continued to urge tort reform in recent months.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8902
msgid ""
"That presumption will increasingly chill creativity, as the examples of "
"extreme penalties for vague infringements continue to proliferate. It is "
"impossible to get a clear sense of what's allowed and what's not, and at the "
"same time, the penalties for crossing the line are astonishingly harsh.  The "
"four students who were threatened by the RIAA ( Jesse Jordan of chapter 3 "
"was just one) were threatened with a $98 billion lawsuit for building search "
"engines that permitted songs to be copied. Yet World-Com&mdash;which "
"defrauded investors of $11 billion, resulting in a loss to investors in "
"market capitalization of over $200 billion&mdash;received a fine of a mere "
"$750 million.<placeholder type=\"footnote\" id=\"0\"/> And under legislation "
"being pushed in Congress right now, a doctor who negligently removes the "
"wrong leg in an operation would be liable for no more than $250,000 in "
"damages for pain and suffering.<placeholder type=\"footnote\" id=\"1\"/> Can "
"common sense recognize the absurdity in a world where the maximum fine for "
"downloading two songs off the Internet is more than the fine for a doctor's "
"negligently butchering a patient? <placeholder type=\"indexterm\" id=\"2\"/>"
msgstr ""

#.  f3. 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:8962
msgid ""
"See Danit Lidor, \"Artists Just Wanna Be Free,\" "
"<citetitle>Wired</citetitle>, 7 July 2003, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #40</ulink>. For an overview of "
"the exhibition, see <ulink url=\"http://free-culture.cc/notes/\">link "
"#41</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8943
msgid ""
"The consequence of this legal uncertainty, tied to these extremely high "
"penalties, is that an extraordinary amount of creativity will either never "
"be exercised, or never be exercised in the open. We drive this creative "
"process underground by branding the modern-day Walt Disneys \"pirates.\" We "
"make it impossible for businesses to rely upon a public domain, because the "
"boundaries of the public domain are designed to be unclear. It never pays to "
"do anything except pay for the right to create, and hence only those who can "
"pay are allowed to create. As was the case in the Soviet Union, though for "
"very different reasons, we will begin to see a world of underground "
"art&mdash;not because the message is necessarily political, or because the "
"subject is controversial, but because the very act of creating the art is "
"legally fraught. Already, exhibits of \"illegal art\" tour the United "
"States.<placeholder type=\"footnote\" id=\"0\"/> In what does their "
"\"illegality\" consist? In the act of mixing the culture around us with an "
"expression that is critical or reflective."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8972
msgid ""
"Part of the reason for this fear of illegality has to do with the changing "
"law. I described that change in detail in chapter <xref xrefstyle=\"select: "
"labelnumber\" linkend=\"property-i\"/>. But an even bigger part has to do "
"with the increasing ease with which infractions can be tracked. As users of "
"file-sharing systems discovered in 2002, it is a trivial matter for "
"copyright owners to get courts to order Internet service providers to reveal "
"who has what content. It is as if your cassette tape player transmitted a "
"list of the songs that you played in the privacy of your own home that "
"anyone could tune into for whatever reason they chose."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8984
msgid ""
"Never in our history has a painter had to worry about whether his painting "
"infringed on someone else's work; but the modern-day painter, using the "
"tools of Photoshop, sharing content on the Web, must worry all the "
"time. Images are all around, but the only safe images to use in the act of "
"creation are those purchased from Corbis or another image farm. And in "
"purchasing, censoring happens. There is a free market in pencils; we needn't "
"worry about its effect on creativity. But there is a highly regulated, "
"monopolized market in cultural icons; the right to cultivate and transform "
"them is not similarly free."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8995
msgid ""
"Lawyers rarely see this because lawyers are rarely empirical. As I described "
"in chapter <xref xrefstyle=\"select: labelnumber\" linkend=\"recorders\"/>, "
"in response to the story about documentary filmmaker Jon Else, I have been "
"lectured again and again by lawyers who insist Else's use was fair use, and "
"hence I am wrong to say that the law regulates such a use."
msgstr ""

#.  PAGE BREAK 196 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9006
msgid ""
"But fair use in America simply means the right to hire a lawyer to defend "
"your right to create. And as lawyers love to forget, our system for "
"defending rights such as fair use is astonishingly bad&mdash;in practically "
"every context, but especially here. It costs too much, it delivers too "
"slowly, and what it delivers often has little connection to the justice "
"underlying the claim. The legal system may be tolerable for the very rich.  "
"For everyone else, it is an embarrassment to a tradition that prides itself "
"on the rule of law."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9016
msgid ""
"Judges and lawyers can tell themselves that fair use provides adequate "
"\"breathing room\" between regulation by the law and the access the law "
"should allow. But it is a measure of how out of touch our legal system has "
"become that anyone actually believes this. The rules that publishers impose "
"upon writers, the rules that film distributors impose upon filmmakers, the "
"rules that newspapers impose upon journalists&mdash; these are the real laws "
"governing creativity. And these rules have little relationship to the "
"\"law\" with which judges comfort themselves."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9027
msgid ""
"For in a world that threatens $150,000 for a single willful infringement of "
"a copyright, and which demands tens of thousands of dollars to even defend "
"against a copyright infringement claim, and which would never return to the "
"wrongfully accused defendant anything of the costs she suffered to defend "
"her right to speak&mdash;in that world, the astonishingly broad regulations "
"that pass under the name \"copyright\" silence speech and creativity. And in "
"that world, it takes a studied blindness for people to continue to believe "
"they live in a culture that is free."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9038
msgid "As Jed Horovitz, the businessman behind Video Pipeline, said to me,"
msgstr ""

#.  PAGE BREAK 197 
#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:9042
msgid ""
"We're losing [creative] opportunities right and left. Creative people are "
"being forced not to express themselves. Thoughts are not being "
"expressed. And while a lot of stuff may [still] be created, it still won't "
"get distributed. Even if the stuff gets made &hellip; you're not going to "
"get it distributed in the mainstream media unless you've got a little note "
"from a lawyer saying, \"This has been cleared.\" You're not even going to "
"get it on PBS without that kind of permission. That's the point at which "
"they control it."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:9055
msgid "Constraining Innovators"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9057
msgid ""
"The story of the last section was a crunchy-lefty story&mdash;creativity "
"quashed, artists who can't speak, yada yada yada. Maybe that doesn't get you "
"going. Maybe you think there's enough weird art out there, and enough "
"expression that is critical of what seems to be just about everything.  And "
"if you think that, you might think there's little in this story to worry "
"you."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9065
msgid ""
"But there's an aspect of this story that is not lefty in any sense.  Indeed, "
"it is an aspect that could be written by the most extreme promarket "
"ideologue. And if you're one of these sorts (and a special one at that, 188 "
"pages into a book like this), then you can see this other aspect by "
"substituting \"free market\" every place I've spoken of \"free culture.\" "
"The point is the same, even if the interests affecting culture are more "
"fundamental."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9074
msgid ""
"The charge I've been making about the regulation of culture is the same "
"charge free marketers make about regulating markets. Everyone, of course, "
"concedes that some regulation of markets is necessary&mdash;at a minimum, we "
"need rules of property and contract, and courts to enforce both. Likewise, "
"in this culture debate, everyone concedes that at least some framework of "
"copyright is also required. But both perspectives vehemently insist that "
"just because some regulation is good, it doesn't follow that more regulation "
"is better. And both perspectives are constantly attuned to the ways in which "
"regulation simply enables the powerful industries of today to protect "
"themselves against the competitors of tomorrow."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:9086 freeculture.xml:9193
msgid "Barry, Hank"
msgstr ""

#.  PAGE BREAK 198 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9088
msgid ""
"This is the single most dramatic effect of the shift in regulatory strategy "
"that I described in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"property-i\"/>. The consequence of this massive threat of "
"liability tied to the murky boundaries of copyright law is that innovators "
"who want to innovate in this space can safely innovate only if they have the "
"sign-off from last generation's dominant industries.  That lesson has been "
"taught through a series of cases that were designed and executed to teach "
"venture capitalists a lesson. That lesson&mdash;what former Napster CEO Hank "
"Barry calls a \"nuclear pall\" that has fallen over the Valley&mdash;has "
"been learned."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9101
msgid ""
"Consider one example to make the point, a story whose beginning I told in "
"<citetitle>The Future of Ideas</citetitle> and which has progressed in a way "
"that even I (pessimist extraordinaire) would never have predicted."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9106
msgid ""
"In 1997, Michael Roberts launched a company called MP3.com.  MP3.com was "
"keen to remake the music business. Their goal was not just to facilitate new "
"ways to get access to content. Their goal was also to facilitate new ways to "
"create content. Unlike the major labels, MP3.com offered creators a venue to "
"distribute their creativity, without demanding an exclusive engagement from "
"the creators."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9114
msgid ""
"To make this system work, however, MP3.com needed a reliable way to "
"recommend music to its users. The idea behind this alternative was to "
"leverage the revealed preferences of music listeners to recommend new "
"artists. If you like Lyle Lovett, you're likely to enjoy Bonnie Raitt. And "
"so on.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9122
msgid ""
"This idea required a simple way to gather data about user preferences.  "
"MP3.com came up with an extraordinarily clever way to gather this preference "
"data. In January 2000, the company launched a service called "
"my.mp3.com. Using software provided by MP3.com, a user would sign into an "
"account and then insert into her computer a CD. The software would identify "
"the CD, and then give the user access to that content.  So, for example, if "
"you inserted a CD by Jill Sobule, then wherever you were&mdash;at work or at "
"home&mdash;you could get access to that music once you signed into your "
"account. The system was therefore a kind of music-lockbox."
msgstr ""

#.  PAGE BREAK 199 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9134
msgid ""
"No doubt some could use this system to illegally copy content. But that "
"opportunity existed with or without MP3.com. The aim of the my.mp3.com "
"service was to give users access to their own content, and as a by-product, "
"by seeing the content they already owned, to discover the kind of content "
"the users liked."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9143
msgid ""
"To make this system function, however, MP3.com needed to copy 50,000 CDs to "
"a server. (In principle, it could have been the user who uploaded the music, "
"but that would have taken a great deal of time, and would have produced a "
"product of questionable quality.) It therefore purchased 50,000 CDs from a "
"store, and started the process of making copies of those CDs. Again, it "
"would not serve the content from those copies to anyone except those who "
"authenticated that they had a copy of the CD they wanted to access. So while "
"this was 50,000 copies, it was 50,000 copies directed at giving customers "
"something they had already bought."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9158
msgid ""
"Nine days after MP3.com launched its service, the five major labels, headed "
"by the RIAA, brought a lawsuit against MP3.com. MP3.com settled with four of "
"the five. Nine months later, a federal judge found MP3.com to have been "
"guilty of willful infringement with respect to the fifth. Applying the law "
"as it is, the judge imposed a fine against MP3.com of $118 million. MP3.com "
"then settled with the remaining plaintiff, Vivendi Universal, paying over "
"$54 million. Vivendi purchased MP3.com just about a year later."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9168
msgid "That part of the story I have told before. Now consider its conclusion."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9171
msgid ""
"After Vivendi purchased MP3.com, Vivendi turned around and filed a "
"malpractice lawsuit against the lawyers who had advised it that they had a "
"good faith claim that the service they wanted to offer would be considered "
"legal under copyright law. This lawsuit alleged that it should have been "
"obvious that the courts would find this behavior illegal; therefore, this "
"lawsuit sought to punish any lawyer who had dared to suggest that the law "
"was less restrictive than the labels demanded."
msgstr ""

#.  PAGE BREAK 200 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9181
msgid ""
"The clear purpose of this lawsuit (which was settled for an unspecified "
"amount shortly after the story was no longer covered in the press) was to "
"send an unequivocal message to lawyers advising clients in this space: It is "
"not just your clients who might suffer if the content industry directs its "
"guns against them. It is also you. So those of you who believe the law "
"should be less restrictive should realize that such a view of the law will "
"cost you and your firm dearly."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:9192
msgid "Hummer, John"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:9194
msgid "Hummer Winblad"
msgstr ""

#.  f4. 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:9202
msgid ""
"See Joseph Menn, \"Universal, EMI Sue Napster Investor,\" <citetitle>Los "
"Angeles Times</citetitle>, 23 April 2003. For a parallel argument about the "
"effects on innovation in the distribution of music, see Janelle Brown, \"The "
"Music Revolution Will Not Be Digitized,\" Salon.com, 1 June 2001, available "
"at <ulink url=\"http://free-culture.cc/notes/\">link #42</ulink>.  See also "
"Jon Healey, \"Online Music Services Besieged,\" <citetitle>Los Angeles "
"Times</citetitle>, 28 May 2001."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9196
msgid ""
"This strategy is not just limited to the lawyers. In April 2003, Universal "
"and EMI brought a lawsuit against Hummer Winblad, the venture capital firm "
"(VC) that had funded Napster at a certain stage of its development, its "
"cofounder ( John Hummer), and general partner (Hank Barry).<placeholder "
"type=\"footnote\" id=\"0\"/> The claim here, as well, was that the VC should "
"have recognized the right of the content industry to control how the "
"industry should develop. They should be held personally liable for funding a "
"company whose business turned out to be beyond the law. Here again, the aim "
"of the lawsuit is transparent: Any VC now recognizes that if you fund a "
"company whose business is not approved of by the dinosaurs, you are at risk "
"not just in the marketplace, but in the courtroom as well.  Your investment "
"buys you not only a company, it also buys you a lawsuit.  So extreme has the "
"environment become that even car manufacturers are afraid of technologies "
"that touch content. In an article in <citetitle>Business 2.0</citetitle>, "
"Rafe Needleman describes a discussion with BMW: <placeholder "
"type=\"indexterm\" id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><indexterm><primary>
#: freeculture.xml:9226
msgid "BMW"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para><indexterm><primary>
#: freeculture.xml:9241
msgid "Needleman, Rafe"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:9237
msgid ""
"Rafe Needleman, \"Driving in Cars with MP3s,\" <citetitle>Business "
"2.0</citetitle>, 16 June 2003, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #43</ulink>. I am grateful to "
"Dr. Mohammad Al-Ubaydli for this example.  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:9228
msgid ""
"I asked why, with all the storage capacity and computer power in the car, "
"there was no way to play MP3 files. I was told that BMW engineers in Germany "
"had rigged a new vehicle to play MP3s via the car's built-in sound system, "
"but that the company's marketing and legal departments weren't comfortable "
"with pushing this forward for release stateside. Even today, no new cars are "
"sold in the United States with bona fide MP3 players. &hellip; <placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9246
msgid ""
"This is the world of the mafia&mdash;filled with \"your money or your life\" "
"offers, governed in the end not by courts but by the threats that the law "
"empowers copyright holders to exercise. It is a system that will obviously "
"and necessarily stifle new innovation. It is hard enough to start a "
"company. It is impossibly hard if that company is constantly threatened by "
"litigation."
msgstr ""

#.  PAGE BREAK 201 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9256
msgid ""
"The point is not that businesses should have a right to start illegal "
"enterprises. The point is the definition of \"illegal.\" The law is a mess "
"of uncertainty. We have no good way to know how it should apply to new "
"technologies. Yet by reversing our tradition of judicial deference, and by "
"embracing the astonishingly high penalties that copyright law imposes, that "
"uncertainty now yields a reality which is far more conservative than is "
"right. If the law imposed the death penalty for parking tickets, we'd not "
"only have fewer parking tickets, we'd also have much less driving. The same "
"principle applies to innovation. If innovation is constantly checked by this "
"uncertain and unlimited liability, we will have much less vibrant innovation "
"and much less creativity."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9270
msgid ""
"The point is directly parallel to the crunchy-lefty point about fair "
"use. Whatever the \"real\" law is, realism about the effect of law in both "
"contexts is the same. This wildly punitive system of regulation will "
"systematically stifle creativity and innovation. It will protect some "
"industries and some creators, but it will harm industry and creativity "
"generally. Free market and free culture depend upon vibrant competition.  "
"Yet the effect of the law today is to stifle just this kind of competition.  "
"The effect is to produce an overregulated culture, just as the effect of too "
"much control in the market is to produce an overregulatedregulated market."
msgstr ""

#.  PAGE BREAK 202 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9282
msgid ""
"The building of a permission culture, rather than a free culture, is the "
"first important way in which the changes I have described will burden "
"innovation. A permission culture means a lawyer's culture&mdash;a culture in "
"which the ability to create requires a call to your lawyer. Again, I am not "
"antilawyer, at least when they're kept in their proper place. I am certainly "
"not antilaw. But our profession has lost the sense of its limits. And "
"leaders in our profession have lost an appreciation of the high costs that "
"our profession imposes upon others. The inefficiency of the law is an "
"embarrassment to our tradition. And while I believe our profession should "
"therefore do everything it can to make the law more efficient, it should at "
"least do everything it can to limit the reach of the law where the law is "
"not doing any good. The transaction costs buried within a permission culture "
"are enough to bury a wide range of creativity.  Someone needs to do a lot of "
"justifying to justify that result.  The uncertainty of the law is one burden "
"on innovation. There is a second burden that operates more directly. This is "
"the effort by many in the content industry to use the law to directly "
"regulate the technology of the Internet so that it better protects their "
"content."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9304
msgid ""
"The motivation for this response is obvious. The Internet enables the "
"efficient spread of content. That efficiency is a feature of the Internet's "
"design. But from the perspective of the content industry, this feature is a "
"\"bug.\" The efficient spread of content means that content distributors "
"have a harder time controlling the distribution of content.  One obvious "
"response to this efficiency is thus to make the Internet less efficient. If "
"the Internet enables \"piracy,\" then, this response says, we should break "
"the kneecaps of the Internet."
msgstr ""

#.  f6. 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:9318
msgid ""
"\"Copyright and Digital Media in a Post-Napster World,\" GartnerG2 and the "
"Berkman Center for Internet and Society at Harvard Law School (2003), "
"33&ndash;35, available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#44</ulink>."
msgstr ""

#.  f7. 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:9331
msgid "GartnerG2, 26&ndash;27."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9314
msgid ""
"The examples of this form of legislation are many. At the urging of the "
"content industry, some in Congress have threatened legislation that would "
"require computers to determine whether the content they access is protected "
"or not, and to disable the spread of protected content.<placeholder "
"type=\"footnote\" id=\"0\"/> Congress has already launched proceedings to "
"explore a mandatory \"broadcast flag\" that would be required on any device "
"capable of transmitting digital video (i.e., a computer), and that would "
"disable the copying of any content that is marked with a broadcast "
"flag. Other members of Congress have proposed immunizing content providers "
"from liability for technology they might deploy that would hunt down "
"copyright violators and disable their machines.<placeholder "
"type=\"footnote\" id=\"1\"/>"
msgstr ""

#.  PAGE BREAK 203 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9335
msgid ""
"In one sense, these solutions seem sensible. If the problem is the code, why "
"not regulate the code to remove the problem. But any regulation of technical "
"infrastructure will always be tuned to the particular technology of the "
"day. It will impose significant burdens and costs on the technology, but "
"will likely be eclipsed by advances around exactly those requirements."
msgstr ""

#.  f8. 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:9349
msgid ""
"See David McGuire, \"Tech Execs Square Off Over Piracy,\" Newsbytes, "
"February 2002 (Entertainment)."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:9355 freeculture.xml:11170
msgid "Intel"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9345
msgid ""
"In March 2002, a broad coalition of technology companies, led by Intel, "
"tried to get Congress to see the harm that such legislation would "
"impose.<placeholder type=\"footnote\" id=\"0\"/> Their argument was "
"obviously not that copyright should not be protected. Instead, they argued, "
"any protection should not do more harm than good.  <placeholder "
"type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9358
msgid ""
"There is one more obvious way in which this war has harmed "
"innovation&mdash;again, a story that will be quite familiar to the free "
"market crowd."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9363
msgid ""
"Copyright may be property, but like all property, it is also a form of "
"regulation. It is a regulation that benefits some and harms others.  When "
"done right, it benefits creators and harms leeches. When done wrong, it is "
"regulation the powerful use to defeat competitors."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:9375
msgid ""
"Jessica Litman, <citetitle>Digital Copyright</citetitle> (Amherst, N.Y.: "
"Prometheus Books, 2001).  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9369
msgid ""
"As I described in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"property-i\"/>, despite this feature of copyright as regulation, "
"and subject to important qualifications outlined by Jessica Litman in her "
"book <citetitle>Digital Copyright</citetitle>,<placeholder type=\"footnote\" "
"id=\"0\"/> overall this history of copyright is not bad. As chapter 10 "
"details, when new technologies have come along, Congress has struck a "
"balance to assure that the new is protected from the old. Compulsory, or "
"statutory, licenses have been one part of that strategy. Free use (as in the "
"case of the VCR) has been another."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9386
msgid ""
"But that pattern of deference to new technologies has now changed with the "
"rise of the Internet. Rather than striking a balance between the claims of a "
"new technology and the legitimate rights of content creators, both the "
"courts and Congress have imposed legal restrictions that will have the "
"effect of smothering the new to benefit the old."
msgstr ""

#.  f10. 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:9395
msgid ""
"The only circuit court exception is found in <citetitle>Recording Industry "
"Association of America (RIAA)</citetitle> v. <citetitle>Diamond Multimedia "
"Systems</citetitle>, 180 F. 3d 1072 (9th Cir. 1999). There the court of "
"appeals for the Ninth Circuit reasoned that makers of a portable MP3 player "
"were not liable for contributory copyright infringement for a device that is "
"unable to record or redistribute music (a device whose only copying function "
"is to render portable a music file already stored on a user's hard drive).  "
"At the district court level, the only exception is found in "
"<citetitle>Metro-Goldwyn-Mayer Studios, "
"Inc</citetitle>. v. <citetitle>Grokster, Ltd</citetitle>., 259 F. Supp. 2d "
"1029 (C.D.  Cal., 2003), where the court found the link between the "
"distributor and any given user's conduct too attenuated to make the "
"distributor liable for contributory or vicarious infringement liability."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:9428
msgid "Hollings, Fritz"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:9413
msgid ""
"For example, in July 2002, Representative Howard Berman introduced the "
"Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize "
"copyright holders from liability for damage done to computers when the "
"copyright holders use technology to stop copyright infringement. In August "
"2002, Representative Billy Tauzin introduced a bill to mandate that "
"technologies capable of rebroadcasting digital copies of films broadcast on "
"TV (i.e., computers) respect a \"broadcast flag\" that would disable copying "
"of that content. And in March of the same year, Senator Fritz Hollings "
"introduced the Consumer Broadband and Digital Television Promotion Act, "
"which mandated copyright protection technology in all digital media "
"devices. See GartnerG2, \"Copyright and Digital Media in a Post-Napster "
"World,\" 27 June 2003, 33&ndash;34, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #44</ulink>.  <placeholder "
"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9393
msgid ""
"The response by the courts has been fairly universal.<placeholder "
"type=\"footnote\" id=\"0\"/> It has been mirrored in the responses "
"threatened and actually implemented by Congress. I won't catalog all of "
"those responses here.<placeholder type=\"footnote\" id=\"1\"/> But there is "
"one example that captures the flavor of them all. This is the story of the "
"demise of Internet radio."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9436
msgid ""
"As I described in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"pirates\"/>, when a radio station plays a song, the recording "
"artist doesn't get paid for that \"radio performance\" unless he or she is "
"also the composer. So, for example if Marilyn Monroe had recorded a version "
"of \"Happy Birthday\"&mdash;to memorialize her famous performance before "
"President Kennedy at Madison Square Garden&mdash; then whenever that "
"recording was played on the radio, the current copyright owners of \"Happy "
"Birthday\" would get some money, whereas Marilyn Monroe would not.  "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9448
msgid ""
"The reasoning behind this balance struck by Congress makes some sense. The "
"justification was that radio was a kind of advertising. The recording artist "
"thus benefited because by playing her music, the radio station was making it "
"more likely that her records would be purchased.  Thus, the recording artist "
"got something, even if only indirectly.  Probably this reasoning had less to "
"do with the result than with the power of radio stations: Their lobbyists "
"were quite good at stopping any efforts to get Congress to require "
"compensation to the recording artists."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9459
msgid ""
"Enter Internet radio. Like regular radio, Internet radio is a technology to "
"stream content from a broadcaster to a listener. The broadcast travels "
"across the Internet, not across the ether of radio spectrum.  Thus, I can "
"\"tune in\" to an Internet radio station in Berlin while sitting in San "
"Francisco, even though there's no way for me to tune in to a regular radio "
"station much beyond the San Francisco metropolitan area."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9468
msgid ""
"This feature of the architecture of Internet radio means that there are "
"potentially an unlimited number of radio stations that a user could tune in "
"to using her computer, whereas under the existing architecture for broadcast "
"radio, there is an obvious limit to the number of broadcasters and clear "
"broadcast frequencies. Internet radio could therefore be more competitive "
"than regular radio; it could provide a wider range of selections. And "
"because the potential audience for Internet radio is the whole world, niche "
"stations could easily develop and market their content to a relatively large "
"number of users worldwide. According to some estimates, more than eighty "
"million users worldwide have tuned in to this new form of radio."
msgstr ""

#.  PAGE BREAK 205 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9483
msgid ""
"Internet radio is thus to radio what FM was to AM. It is an improvement "
"potentially vastly more significant than the FM improvement over AM, since "
"not only is the technology better, so, too, is the competition. Indeed, "
"there is a direct parallel between the fight to establish FM radio and the "
"fight to protect Internet radio. As one author describes Howard Armstrong's "
"struggle to enable FM radio,"
msgstr ""

#.  f12. 
#. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:9507
msgid "Lessing, 239."
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:9493
msgid ""
"An almost unlimited number of FM stations was possible in the shortwaves, "
"thus ending the unnatural restrictions imposed on radio in the crowded "
"longwaves. If FM were freely developed, the number of stations would be "
"limited only by economics and competition rather than by technical "
"restrictions. &hellip; Armstrong likened the situation that had grown up in "
"radio to that following the invention of the printing press, when "
"governments and ruling interests attempted to control this new instrument of "
"mass communications by imposing restrictive licenses on it. This tyranny was "
"broken only when it became possible for men freely to acquire printing "
"presses and freely to run them. FM in this sense was as great an invention "
"as the printing presses, for it gave radio the opportunity to strike off its "
"shackles.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  f13. 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:9517
msgid "Ibid., 229."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9512
msgid ""
"This potential for FM radio was never realized&mdash;not because Armstrong "
"was wrong about the technology, but because he underestimated the power of "
"\"vested interests, habits, customs and legislation\"<placeholder "
"type=\"footnote\" id=\"0\"/> to retard the growth of this competing "
"technology."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9522
msgid ""
"Now the very same claim could be made about Internet radio. For again, there "
"is no technical limitation that could restrict the number of Internet radio "
"stations. The only restrictions on Internet radio are those imposed by the "
"law. Copyright law is one such law. So the first question we should ask is, "
"what copyright rules would govern Internet radio?"
msgstr ""

#.  PAGE BREAK 206 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9530
msgid ""
"But here the power of the lobbyists is reversed. Internet radio is a new "
"industry. The recording artists, on the other hand, have a very powerful "
"lobby, the RIAA. Thus when Congress considered the phenomenon of Internet "
"radio in 1995, the lobbyists had primed Congress to adopt a different rule "
"for Internet radio than the rule that applies to terrestrial radio. While "
"terrestrial radio does not have to pay our hypothetical Marilyn Monroe when "
"it plays her hypothetical recording of \"Happy Birthday\" on the air, "
"<emphasis>Internet radio does</emphasis>. Not only is the law not neutral "
"toward Internet radio&mdash;the law actually burdens Internet radio more "
"than it burdens terrestrial radio."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:9569
msgid "CARP (Copyright Arbitration Royalty Panel)"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:9552
msgid ""
"This example was derived from fees set by the original Copyright Arbitration "
"Royalty Panel (CARP) proceedings, and is drawn from an example offered by "
"Professor William Fisher. Conference Proceedings, iLaw (Stanford), 3 July "
"2003, on file with author. Professors Fisher and Zittrain submitted "
"testimony in the CARP proceeding that was ultimately rejected.  See Jonathan "
"Zittrain, Digital Performance Right in Sound Recordings and Ephemeral "
"Recordings, Docket No. 2000-9, CARP DTRA 1 and 2, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #45</ulink>.  For an excellent "
"analysis making a similar point, see Randal C. Picker, \"Copyright as Entry "
"Policy: The Case of Digital Distribution,\" <citetitle>Antitrust "
"Bulletin</citetitle> (Summer/Fall 2002): 461: \"This was not confusion, "
"these are just old-fashioned entry barriers. Analog radio stations are "
"protected from digital entrants, reducing entry in radio and diversity. Yes, "
"this is done in the name of getting royalties to copyright holders, but, "
"absent the play of powerful interests, that could have been done in a "
"media-neutral way.\" <placeholder type=\"indexterm\" id=\"0\"/> <placeholder "
"type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9545
msgid ""
"This financial burden is not slight. As Harvard law professor William Fisher "
"estimates, if an Internet radio station distributed adfree popular music to "
"(on average) ten thousand listeners, twenty-four hours a day, the total "
"artist fees that radio station would owe would be over $1 million a "
"year.<placeholder type=\"footnote\" id=\"0\"/> A regular radio station "
"broadcasting the same content would pay no equivalent fee."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9576
msgid ""
"The burden is not financial only. Under the original rules that were "
"proposed, an Internet radio station (but not a terrestrial radio station) "
"would have to collect the following data from <emphasis>every listening "
"transaction</emphasis>:"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9584
msgid "name of the service;"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9587
msgid "channel of the program (AM/FM stations use station ID);"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9590
msgid "type of program (archived/looped/live);"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9593
msgid "date of transmission;"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9596
msgid "time of transmission;"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9599
msgid "time zone of origination of transmission;"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9602
msgid "numeric designation of the place of the sound recording within the program;"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9605
msgid "duration of transmission (to nearest second);"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9608
msgid "sound recording title;"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9611
msgid "ISRC code of the recording;"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9614
msgid ""
"release year of the album per copyright notice and in the case of "
"compilation albums, the release year of the album and copy- right date of "
"the track;"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9617
msgid "featured recording artist;"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9620
msgid "retail album title;"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9623
msgid "recording label;"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9626
msgid "UPC code of the retail album;"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9629
msgid "catalog number;"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9632
msgid "copyright owner information;"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9635
msgid "musical genre of the channel or program (station format);"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9638
msgid "name of the service or entity;"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9641
msgid "channel or program;"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9644
msgid "date and time that the user logged in (in the user's time zone);"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9647
msgid "date and time that the user logged out (in the user's time zone);"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9650
msgid "time zone where the signal was received (user);"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9653
msgid "unique user identifier;"
msgstr ""

#. type: Content of: <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:9656
msgid "the country in which the user received the transmissions."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9661
msgid ""
"The Librarian of Congress eventually suspended these reporting requirements, "
"pending further study. And he also changed the original rates set by the "
"arbitration panel charged with setting rates. But the basic difference "
"between Internet radio and terrestrial radio remains: Internet radio has to "
"pay a <emphasis>type of copyright fee</emphasis> that terrestrial radio does "
"not."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9669
msgid ""
"Why? What justifies this difference? Was there any study of the economic "
"consequences from Internet radio that would justify these differences? Was "
"the motive to protect artists against piracy?"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9675
msgid ""
"In a rare bit of candor, one RIAA expert admitted what seemed obvious to "
"everyone at the time. As Alex Alben, vice president for Public Policy at "
"Real Networks, told me,"
msgstr ""

#.  PAGE BREAK 208 
#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:9681
msgid ""
"The RIAA, which was representing the record labels, presented some testimony "
"about what they thought a willing buyer would pay to a willing seller, and "
"it was much higher. It was ten times higher than what radio stations pay to "
"perform the same songs for the same period of time. And so the attorneys "
"representing the webcasters asked the RIAA, &hellip; \"How do you come up "
"with a rate that's so much higher? Why is it worth more than radio? Because "
"here we have hundreds of thousands of webcasters who want to pay, and that "
"should establish the market rate, and if you set the rate so high, you're "
"going to drive the small webcasters out of business. &hellip;\""
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:9697
msgid ""
"And the RIAA experts said, \"Well, we don't really model this as an industry "
"with thousands of webcasters, <emphasis>we think it should be an industry "
"with, you know, five or seven big players who can pay a high rate and it's a "
"stable, predictable market</emphasis>.\" (Emphasis added.)"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9705
msgid ""
"Translation: The aim is to use the law to eliminate competition, so that "
"this platform of potentially immense competition, which would cause the "
"diversity and range of content available to explode, would not cause pain to "
"the dinosaurs of old. There is no one, on either the right or the left, who "
"should endorse this use of the law. And yet there is practically no one, on "
"either the right or the left, who is doing anything effective to prevent it."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:9715
msgid "Corrupting Citizens"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9717
msgid ""
"Overregulation stifles creativity. It smothers innovation. It gives "
"dinosaurs a veto over the future. It wastes the extraordinary opportunity "
"for a democratic creativity that digital technology enables."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9723
msgid ""
"In addition to these important harms, there is one more that was important "
"to our forebears, but seems forgotten today. Overregulation corrupts "
"citizens and weakens the rule of law."
msgstr ""

#.  f15. 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:9732
msgid ""
"Mike Graziano and Lee Rainie, \"The Music Downloading Deluge,\" Pew Internet "
"and American Life Project (24 April 2001), available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #46</ulink>.  The Pew Internet "
"and American Life Project reported that 37 million Americans had downloaded "
"music files from the Internet by early 2001."
msgstr ""

#.  PAGE BREAK 209 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9728
msgid ""
"The war that is being waged today is a war of prohibition. As with every war "
"of prohibition, it is targeted against the behavior of a very large number "
"of citizens. According to <citetitle>The New York Times</citetitle>, 43 "
"million Americans downloaded music in May 2002.<placeholder "
"type=\"footnote\" id=\"0\"/> According to the RIAA, the behavior of those 43 "
"million Americans is a felony. We thus have a set of rules that transform 20 "
"percent of America into criminals. As the RIAA launches lawsuits against not "
"only the Napsters and Kazaas of the world, but against students building "
"search engines, and increasingly against ordinary users downloading content, "
"the technologies for sharing will advance to further protect and hide "
"illegal use. It is an arms race or a civil war, with the extremes of one "
"side inviting a more extreme response by the other."
msgstr ""

#.  f16. 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:9766
msgid ""
"Alex Pham, \"The Labels Strike Back: N.Y. Girl Settles RIAA Case,\" "
"<citetitle>Los Angeles Times</citetitle>, 10 September 2003, Business."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9753
msgid ""
"The content industry's tactics exploit the failings of the American legal "
"system. When the RIAA brought suit against Jesse Jordan, it knew that in "
"Jordan it had found a scapegoat, not a defendant. The threat of having to "
"pay either all the money in the world in damages ($15,000,000) or almost all "
"the money in the world to defend against paying all the money in the world "
"in damages ($250,000 in legal fees)  led Jordan to choose to pay all the "
"money he had in the world ($12,000) to make the suit go away. The same "
"strategy animates the RIAA's suits against individual users. In September "
"2003, the RIAA sued 261 individuals&mdash;including a twelve-year-old girl "
"living in public housing and a seventy-year-old man who had no idea what "
"file sharing was.<placeholder type=\"footnote\" id=\"0\"/> As these "
"scapegoats discovered, it will always cost more to defend against these "
"suits than it would cost to simply settle. (The twelve year old, for "
"example, like Jesse Jordan, paid her life savings of $2,000 to settle the "
"case.) Our law is an awful system for defending rights. It is an "
"embarrassment to our tradition. And the consequence of our law as it is, is "
"that those with the power can use the law to quash any rights they oppose."
msgstr ""

#.  f17. 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:9788
msgid ""
"Jeffrey A. Miron and Jeffrey Zwiebel, \"Alcohol Consumption During "
"Prohibition,\" <citetitle>American Economic Review</citetitle> 81, no. 2 "
"(1991): 242."
msgstr ""

#.  f18. 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:9796
msgid ""
"National Drug Control Policy: Hearing Before the House Government Reform "
"Committee, 108th Cong., 1st sess. (5 March 2003) (statement of John "
"P. Walters, director of National Drug Control Policy)."
msgstr ""

#.  f19. 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:9806
msgid ""
"See James Andreoni, Brian Erard, and Jonathon Feinstein, \"Tax Compliance,\" "
"<citetitle>Journal of Economic Literature</citetitle> 36 (1998): 818 (survey "
"of compliance literature)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:9813
msgid "alcohol prohibition"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9778
msgid ""
"Wars of prohibition are nothing new in America. This one is just something "
"more extreme than anything we've seen before. We experimented with alcohol "
"prohibition, at a time when the per capita consumption of alcohol was 1.5 "
"gallons per capita per year. The war against drinking initially reduced that "
"consumption to just 30 percent of its preprohibition levels, but by the end "
"of prohibition, consumption was up to 70 percent of the preprohibition "
"level. Americans were drinking just about as much, but now, a vast number "
"were criminals.<placeholder type=\"footnote\" id=\"0\"/> We have launched a "
"war on drugs aimed at reducing the consumption of regulated narcotics that 7 "
"percent (or 16 million) Americans now use.<placeholder type=\"footnote\" "
"id=\"1\"/> That is a drop from the high (so to speak) in 1979 of 14 percent "
"of the population. We regulate automobiles to the point where the vast "
"majority of Americans violate the law every day. We run such a complex tax "
"system that a majority of cash businesses regularly cheat.<placeholder "
"type=\"footnote\" id=\"2\"/> We pride ourselves on our \"free society,\" but "
"an endless array of ordinary behavior is regulated within our society. And "
"as a result, a huge proportion of Americans regularly violate at least some "
"law.  <placeholder type=\"indexterm\" id=\"3\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:9831
msgid "law schools"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9816
msgid ""
"This state of affairs is not without consequence. It is a particularly "
"salient issue for teachers like me, whose job it is to teach law students "
"about the importance of \"ethics.\" As my colleague Charlie Nesson told a "
"class at Stanford, each year law schools admit thousands of students who "
"have illegally downloaded music, illegally consumed alcohol and sometimes "
"drugs, illegally worked without paying taxes, illegally driven cars. These "
"are kids for whom behaving illegally is increasingly the norm. And then we, "
"as law professors, are supposed to teach them how to behave "
"ethically&mdash;how to say no to bribes, or keep client funds separate, or "
"honor a demand to disclose a document that will mean that your case is "
"over. Generations of Americans&mdash;more significantly in some parts of "
"America than in others, but still, everywhere in America today&mdash;can't "
"live their lives both normally and legally, since \"normally\" entails a "
"certain degree of illegality.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9834
msgid ""
"The response to this general illegality is either to enforce the law more "
"severely or to change the law. We, as a society, have to learn how to make "
"that choice more rationally. Whether a law makes sense depends, in part, at "
"least, upon whether the costs of the law, both intended and collateral, "
"outweigh the benefits. If the costs, intended and collateral, do outweigh "
"the benefits, then the law ought to be changed.  Alternatively, if the costs "
"of the existing system are much greater than the costs of an alternative, "
"then we have a good reason to consider the alternative."
msgstr ""

#.  PAGE BREAK 211 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9847
msgid ""
"My point is not the idiotic one: Just because people violate a law, we "
"should therefore repeal it. Obviously, we could reduce murder statistics "
"dramatically by legalizing murder on Wednesdays and Fridays. But that "
"wouldn't make any sense, since murder is wrong every day of the week. A "
"society is right to ban murder always and everywhere."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9854
msgid ""
"My point is instead one that democracies understood for generations, but "
"that we recently have learned to forget. The rule of law depends upon people "
"obeying the law. The more often, and more repeatedly, we as citizens "
"experience violating the law, the less we respect the law. Obviously, in "
"most cases, the important issue is the law, not respect for the law. I don't "
"care whether the rapist respects the law or not; I want to catch and "
"incarcerate the rapist. But I do care whether my students respect the "
"law. And I do care if the rules of law sow increasing disrespect because of "
"the extreme of regulation they impose.  Twenty million Americans have come "
"of age since the Internet introduced this different idea of \"sharing.\" We "
"need to be able to call these twenty million Americans \"citizens,\" not "
"\"felons.\""
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9868
msgid ""
"When at least forty-three million citizens download content from the "
"Internet, and when they use tools to combine that content in ways "
"unauthorized by copyright holders, the first question we should be asking is "
"not how best to involve the FBI. The first question should be whether this "
"particular prohibition is really necessary in order to achieve the proper "
"ends that copyright law serves. Is there another way to assure that artists "
"get paid without transforming forty-three million Americans into felons? "
"Does it make sense if there are other ways to assure that artists get paid "
"without transforming America into a nation of felons?"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9880
msgid "This abstract point can be made more clear with a particular example."
msgstr ""

#.  PAGE BREAK 212 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9883
msgid ""
"We all own CDs. Many of us still own phonograph records. These pieces of "
"plastic encode music that in a certain sense we have bought.  The law "
"protects our right to buy and sell that plastic: It is not a copyright "
"infringement for me to sell all my classical records at a used record store "
"and buy jazz records to replace them. That \"use\" of the recordings is "
"free."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9894
msgid ""
"But as the MP3 craze has demonstrated, there is another use of phonograph "
"records that is effectively free. Because these recordings were made without "
"copy-protection technologies, I am \"free\" to copy, or \"rip,\" music from "
"my records onto a computer hard disk. Indeed, Apple Corporation went so far "
"as to suggest that \"freedom\" was a right: In a series of commercials, "
"Apple endorsed the \"Rip, Mix, Burn\" capacities of digital technologies."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:9902
msgid "Adromeda"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9904
msgid ""
"This \"use\" of my records is certainly valuable. I have begun a large "
"process at home of ripping all of my and my wife's CDs, and storing them in "
"one archive. Then, using Apple's iTunes, or a wonderful program called "
"Andromeda, we can build different play lists of our music: Bach, Baroque, "
"Love Songs, Love Songs of Significant Others&mdash;the potential is "
"endless. And by reducing the costs of mixing play lists, these technologies "
"help build a creativity with play lists that is itself independently "
"valuable. Compilations of songs are creative and meaningful in their own "
"right."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9915
msgid ""
"This use is enabled by unprotected media&mdash;either CDs or records.  But "
"unprotected media also enable file sharing. File sharing threatens (or so "
"the content industry believes) the ability of creators to earn a fair return "
"from their creativity. And thus, many are beginning to experiment with "
"technologies to eliminate unprotected media. These technologies, for "
"example, would enable CDs that could not be ripped. Or they might enable spy "
"programs to identify ripped content on people's machines."
msgstr ""

#.  PAGE BREAK 213 
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9925
msgid ""
"If these technologies took off, then the building of large archives of your "
"own music would become quite difficult. You might hang in hacker circles, "
"and get technology to disable the technologies that protect the "
"content. Trading in those technologies is illegal, but maybe that doesn't "
"bother you much. In any case, for the vast majority of people, these "
"protection technologies would effectively destroy the archiving use of "
"CDs. The technology, in other words, would force us all back to the world "
"where we either listened to music by manipulating pieces of plastic or were "
"part of a massively complex \"digital rights management\" system."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9939
msgid ""
"If the only way to assure that artists get paid were the elimination of the "
"ability to freely move content, then these technologies to interfere with "
"the freedom to move content would be justifiable. But what if there were "
"another way to assure that artists are paid, without locking down any "
"content? What if, in other words, a different system could assure "
"compensation to artists while also preserving the freedom to move content "
"easily?"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9948
msgid ""
"My point just now is not to prove that there is such a system. I offer a "
"version of such a system in the last chapter of this book. For now, the only "
"point is the relatively uncontroversial one: If a different system achieved "
"the same legitimate objectives that the existing copyright system achieved, "
"but left consumers and creators much more free, then we'd have a very good "
"reason to pursue this alternative&mdash;namely, freedom.  The choice, in "
"other words, would not be between property and piracy; the choice would be "
"between different property systems and the freedoms each allowed."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9959
msgid ""
"I believe there is a way to assure that artists are paid without turning "
"forty-three million Americans into felons. But the salient feature of this "
"alternative is that it would lead to a very different market for producing "
"and distributing creativity. The dominant few, who today control the vast "
"majority of the distribution of content in the world, would no longer "
"exercise this extreme of control. Rather, they would go the way of the "
"horse-drawn buggy."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9968
msgid ""
"Except that this generation's buggy manufacturers have already saddled "
"Congress, and are riding the law to protect themselves against this new form "
"of competition. For them the choice is between fortythree million Americans "
"as criminals and their own survival."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9974
msgid ""
"It is understandable why they choose as they do. It is not understandable "
"why we as a democracy continue to choose as we do. Jack Valenti is charming; "
"but not so charming as to justify giving up a tradition as deep and "
"important as our tradition of free culture.  There's one more aspect to this "
"corruption that is particularly important to civil liberties, and follows "
"directly from any war of prohibition.  As Electronic Frontier Foundation "
"attorney Fred von Lohmann describes, this is the \"collateral damage\" that "
"\"arises whenever you turn a very large percentage of the population into "
"criminals.\" This is the collateral damage to civil liberties generally.  "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:9993 freeculture.xml:10102
msgid "von Lohmann, Fred"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9991
msgid ""
"\"If you can treat someone as a putative lawbreaker,\" von Lohmann explains, "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:9997
msgid ""
"then all of a sudden a lot of basic civil liberty protections evaporate to "
"one degree or another. &hellip; If you're a copyright infringer, how can you "
"hope to have any privacy rights? If you're a copyright infringer, how can "
"you hope to be secure against seizures of your computer? How can you hope to "
"continue to receive Internet access? &hellip; Our sensibilities change as "
"soon as we think, \"Oh, well, but that person's a criminal, a lawbreaker.\" "
"Well, what this campaign against file sharing has done is turn a remarkable "
"percentage of the American Internet-using population into \"lawbreakers.\""
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10009
msgid ""
"And the consequence of this transformation of the American public into "
"criminals is that it becomes trivial, as a matter of due process, to "
"effectively erase much of the privacy most would presume."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10014
msgid ""
"Users of the Internet began to see this generally in 2003 as the RIAA "
"launched its campaign to force Internet service providers to turn over the "
"names of customers who the RIAA believed were violating copyright "
"law. Verizon fought that demand and lost. With a simple request to a judge, "
"and without any notice to the customer at all, the identity of an Internet "
"user is revealed."
msgstr ""

#.  f20. 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:10032
msgid ""
"See Frank Ahrens, \"RIAA's Lawsuits Meet Surprised Targets; Single Mother in "
"Calif., 12-Year-Old Girl in N.Y. Among Defendants,\" <citetitle>Washington "
"Post</citetitle>, 10 September 2003, E1; Chris Cobbs, \"Worried Parents Pull "
"Plug on File `Stealing'; With the Music Industry Cracking Down on File "
"Swapping, Parents are Yanking Software from Home PCs to Avoid Being Sued,\" "
"<citetitle>Orlando Sentinel Tribune</citetitle>, 30 August 2003, C1; "
"Jefferson Graham, \"Recording Industry Sues Parents,\" <citetitle>USA "
"Today</citetitle>, 15 September 2003, 4D; John Schwartz, \"She Says She's No "
"Music Pirate. No Snoop Fan, Either,\" <citetitle>New York Times</citetitle>, "
"25 September 2003, C1; Margo Varadi, \"Is Brianna a Criminal?\" "
"<citetitle>Toronto Star</citetitle>, 18 September 2003, P7."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10023
msgid ""
"The RIAA then expanded this campaign, by announcing a general strategy to "
"sue individual users of the Internet who are alleged to have downloaded "
"copyrighted music from file-sharing systems. But as we've seen, the "
"potential damages from these suits are astronomical: If a family's computer "
"is used to download a single CD's worth of music, the family could be liable "
"for $2 million in damages. That didn't stop the RIAA from suing a number of "
"these families, just as they had sued Jesse Jordan.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  f21. 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:10050
msgid ""
"See \"Revealed: How RIAA Tracks Downloaders: Music Industry Discloses Some "
"Methods Used,\" CNN.com, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #47</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10046
msgid ""
"Even this understates the espionage that is being waged by the RIAA. A "
"report from CNN late last summer described a strategy the RIAA had adopted "
"to track Napster users.<placeholder type=\"footnote\" id=\"0\"/> Using a "
"sophisticated hashing algorithm, the RIAA took what is in effect a "
"fingerprint of every song in the Napster catalog. Any copy of one of those "
"MP3s will have the same \"fingerprint.\""
msgstr ""

#.  f22. 
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:10071
msgid ""
"See Jeff Adler, \"Cambridge: On Campus, Pirates Are Not Penitent,\" "
"<citetitle>Boston Globe</citetitle>, 18 May 2003, City Weekly, 1; Frank "
"Ahrens, \"Four Students Sued over Music Sites; Industry Group Targets File "
"Sharing at Colleges,\" <citetitle>Washington Post</citetitle>, 4 April 2003, "
"E1; Elizabeth Armstrong, \"Students `Rip, Mix, Burn' at Their Own Risk,\" "
"<citetitle>Christian Science Monitor</citetitle>, 2 September 2003, 20; "
"Robert Becker and Angela Rozas, \"Music Pirate Hunt Turns to Loyola; Two "
"Students Names Are Handed Over; Lawsuit Possible,\" <citetitle>Chicago "
"Tribune</citetitle>, 16 July 2003, 1C; Beth Cox, \"RIAA Trains Antipiracy "
"Guns on Universities,\" <citetitle>Internet News</citetitle>, 30 January "
"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#48</ulink>; Benny Evangelista, \"Download Warning 101: Freshman Orientation "
"This Fall to Include Record Industry Warnings Against File Sharing,\" "
"<citetitle>San Francisco Chronicle</citetitle>, 11 August 2003, E11; \"Raid, "
"Letters Are Weapons at Universities,\" <citetitle>USA Today</citetitle>, 26 "
"September 2000, 3D."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10059
msgid ""
"So imagine the following not-implausible scenario: Imagine a friend gives a "
"CD to your daughter&mdash;a collection of songs just like the cassettes you "
"used to make as a kid. You don't know, and neither does your daughter, where "
"these songs came from. But she copies these songs onto her computer. She "
"then takes her computer to college and connects it to a college network, and "
"if the college network is \"cooperating\" with the RIAA's espionage, and she "
"hasn't properly protected her content from the network (do you know how to "
"do that yourself ?), then the RIAA will be able to identify your daughter as "
"a \"criminal.\" And under the rules that universities are beginning to "
"deploy,<placeholder type=\"footnote\" id=\"0\"/> your daughter can lose the "
"right to use the university's computer network.  She can, in some cases, be "
"expelled."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10090
msgid ""
"Now, of course, she'll have the right to defend herself. You can hire a "
"lawyer for her (at $300 per hour, if you're lucky), and she can plead that "
"she didn't know anything about the source of the songs or that they came "
"from Napster. And it may well be that the university believes her. But the "
"university might not believe her. It might treat this \"contraband\" as "
"presumptive of guilt. And as any number of college students have already "
"learned, our presumptions about innocence disappear in the middle of wars of "
"prohibition. This war is no different.  Says von Lohmann, <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:10106
msgid ""
"So when we're talking about numbers like forty to sixty million Americans "
"that are essentially copyright infringers, you create a situation where the "
"civil liberties of those people are very much in peril in a general "
"matter. [I don't] think [there is any] analog where you could randomly "
"choose any person off the street and be confident that they were committing "
"an unlawful act that could put them on the hook for potential felony "
"liability or hundreds of millions of dollars of civil liability. Certainly "
"we all speed, but speeding isn't the kind of an act for which we routinely "
"forfeit civil liberties. Some people use drugs, and I think that's the "
"closest analog, [but] many have noted that the war against drugs has eroded "
"all of our civil liberties because it's treated so many Americans as "
"criminals. Well, I think it's fair to say that file sharing is an order of "
"magnitude larger number of Americans than drug use. &hellip; If forty to "
"sixty million Americans have become lawbreakers, then we're really on a "
"slippery slope to lose a lot of civil liberties for all forty to sixty "
"million of them."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10126
msgid ""
"When forty to sixty million Americans are considered \"criminals\" under the "
"law, and when the law could achieve the same objective&mdash; securing "
"rights to authors&mdash;without these millions being considered "
"\"criminals,\" who is the villain? Americans or the law? Which is American, "
"a constant war on our own people or a concerted effort through our democracy "
"to change our law?"
msgstr ""

#. type: Content of: <book><part><title>
#: freeculture.xml:10139
msgid "BALANCES"
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:10144
msgid ""
"So here's the picture: You're standing at the side of the road. Your car is "
"on fire. You are angry and upset because in part you helped start the "
"fire. Now you don't know how to put it out. Next to you is a bucket, filled "
"with gasoline. Obviously, gasoline won't put the fire out."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:10150
msgid ""
"As you ponder the mess, someone else comes along. In a panic, she grabs the "
"bucket. Before you have a chance to tell her to stop&mdash;or before she "
"understands just why she should stop&mdash;the bucket is in the air.  The "
"gasoline is about to hit the blazing car. And the fire that gasoline will "
"ignite is about to ignite everything around."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:10158
msgid ""
"A war about copyright rages all around&mdash;and we're all focusing on the "
"wrong thing. No doubt, current technologies threaten existing businesses.  "
"No doubt they may threaten artists. But technologies change.  The industry "
"and technologists have plenty of ways to use technology to protect "
"themselves against the current threats of the Internet. This is a fire that "
"if let alone would burn itself out."
msgstr ""

#.  PAGE BREAK 219 
#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:10167
msgid ""
"Yet policy makers are not willing to leave this fire to itself. Primed with "
"plenty of lobbyists' money, they are keen to intervene to eliminate the "
"problem they perceive. But the problem they perceive is not the real threat "
"this culture faces. For while we watch this small fire in the corner, there "
"is a massive change in the way culture is made that is happening all around."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:10175
msgid ""
"Somehow we have to find a way to turn attention to this more important and "
"fundamental issue. Somehow we have to find a way to avoid pouring gasoline "
"onto this fire."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:10180
msgid ""
"We have not found that way yet. Instead, we seem trapped in a simpler, "
"binary view. However much many people push to frame this debate more "
"broadly, it is the simple, binary view that remains. We rubberneck to look "
"at the fire when we should be keeping our eyes on the road."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:10186
msgid ""
"This challenge has been my life these last few years. It has also been my "
"failure. In the two chapters that follow, I describe one small brace of "
"efforts, so far failed, to find a way to refocus this debate. We must "
"understand these failures if we're to understand what success will require."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:10196
msgid "CHAPTER THIRTEEN: Eldred"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:10198
msgid "Hawthorne, Nathaniel"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10201
msgid ""
"In 1995, a father was frustrated that his daughters didn't seem to like "
"Hawthorne. No doubt there was more than one such father, but at least one "
"did something about it. Eric Eldred, a retired computer programmer living in "
"New Hampshire, decided to put Hawthorne on the Web. An electronic version, "
"Eldred thought, with links to pictures and explanatory text, would make this "
"nineteenth-century author's work come alive."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10210
msgid ""
"It didn't work&mdash;at least for his daughters. They didn't find Hawthorne "
"any more interesting than before. But Eldred's experiment gave birth to a "
"hobby, and his hobby begat a cause: Eldred would build a library of public "
"domain works by scanning these works and making them available for free."
msgstr ""

#.  PAGE BREAK 221 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10217
msgid ""
"Eldred's library was not simply a copy of certain public domain works, "
"though even a copy would have been of great value to people across the world "
"who can't get access to printed versions of these works. Instead, Eldred was "
"producing derivative works from these public domain works. Just as Disney "
"turned Grimm into stories more accessible to the twentieth century, Eldred "
"transformed Hawthorne, and many others, into a form more "
"accessible&mdash;technically accessible&mdash;today."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10228
msgid ""
"Eldred's freedom to do this with Hawthorne's work grew from the same source "
"as Disney's. Hawthorne's <citetitle>Scarlet Letter</citetitle> had passed "
"into the public domain in 1907. It was free for anyone to take without the "
"permission of the Hawthorne estate or anyone else. Some, such as Dover Press "
"and Penguin Classics, take works from the public domain and produce printed "
"editions, which they sell in bookstores across the country. Others, such as "
"Disney, take these stories and turn them into animated cartoons, sometimes "
"successfully (<citetitle>Cinderella</citetitle>), sometimes not "
"(<citetitle>The Hunchback of Notre Dame</citetitle>, <citetitle>Treasure "
"Planet</citetitle>). These are all commercial publications of public domain "
"works."
msgstr ""

#.  f1. 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:10252
msgid ""
"There's a parallel here with pornography that is a bit hard to describe, but "
"it's a strong one. One phenomenon that the Internet created was a world of "
"noncommercial pornographers&mdash;people who were distributing porn but were "
"not making money directly or indirectly from that distribution.  Such a "
"class didn't exist before the Internet came into being because the costs of "
"distributing porn were so high. Yet this new class of distributors got "
"special attention in the Supreme Court, when the Court struck down the "
"Communications Decency Act of 1996. It was partly because of the burden on "
"noncommercial speakers that the statute was found to exceed Congress's "
"power. The same point could have been made about noncommercial publishers "
"after the advent of the Internet. The Eric Eldreds of the world before the "
"Internet were extremely few. Yet one would think it at least as important to "
"protect the Eldreds of the world as to protect noncommercial pornographers."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10241
msgid ""
"The Internet created the possibility of noncommercial publications of public "
"domain works. Eldred's is just one example. There are literally thousands of "
"others. Hundreds of thousands from across the world have discovered this "
"platform of expression and now use it to share works that are, by law, free "
"for the taking. This has produced what we might call the \"noncommercial "
"publishing industry,\" which before the Internet was limited to people with "
"large egos or with political or social causes. But with the Internet, it "
"includes a wide range of individuals and groups dedicated to spreading "
"culture generally.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10269
msgid ""
"As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection "
"of poems <citetitle>New Hampshire</citetitle> was slated to pass into the "
"public domain. Eldred wanted to post that collection in his free public "
"library.  But Congress got in the way. As I described in chapter <xref "
"xrefstyle=\"select: labelnumber\" linkend=\"property-i\"/>, in 1998, for the "
"eleventh time in forty years, Congress extended the terms of existing "
"copyrights&mdash;this time by twenty years. Eldred would not be free to add "
"any works more recent than 1923 to his collection until 2019.  Indeed, no "
"copyrighted work would pass into the public domain until that year (and not "
"even then, if Congress extends the term again). By contrast, in the same "
"period, more than 1 million patents will pass into the public domain."
msgstr ""

#.  f2. 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:10290
msgid ""
"The full text is: \"Sonny [Bono] wanted the term of copyright protection to "
"last forever. I am informed by staff that such a change would violate the "
"Constitution. I invite all of you to work with me to strengthen our "
"copyright laws in all of the ways available to us. As you know, there is "
"also Jack Valenti's proposal for a term to last forever less one "
"day. Perhaps the Committee may look at that next Congress,\" 144 "
"Cong. Rec. H9946, 9951-2 (October 7, 1998)."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10285
msgid ""
"This was the Sonny Bono Copyright Term Extension Act (CTEA), enacted in "
"memory of the congressman and former musician Sonny Bono, who, his widow, "
"Mary Bono, says, believed that \"copyrights should be forever.\"<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10301
msgid ""
"Eldred decided to fight this law. He first resolved to fight it through "
"civil disobedience. In a series of interviews, Eldred announced that he "
"would publish as planned, CTEA notwithstanding. But because of a second law "
"passed in 1998, the NET (No Electronic Theft) Act, his act of publishing "
"would make Eldred a felon&mdash;whether or not anyone complained. This was a "
"dangerous strategy for a disabled programmer to undertake."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10310
msgid ""
"It was here that I became involved in Eldred's battle. I was a "
"constitutional scholar whose first passion was constitutional "
"interpretation.  And though constitutional law courses never focus upon the "
"Progress Clause of the Constitution, it had always struck me as importantly "
"different. As you know, the Constitution says,"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:10321
msgid ""
"Congress has the power to promote the Progress of Science &hellip; by "
"securing for limited Times to Authors &hellip; exclusive Right to their "
"&hellip; Writings. &hellip;"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10327
msgid ""
"As I've described, this clause is unique within the power-granting clause of "
"Article I, section 8 of our Constitution. Every other clause granting power "
"to Congress simply says Congress has the power to do something&mdash;for "
"example, to regulate \"commerce among the several states\" or \"declare "
"War.\" But here, the \"something\" is something quite specific&mdash;to "
"\"promote &hellip; Progress\"&mdash;through means that are also "
"specific&mdash; by \"securing\" \"exclusive Rights\" (i.e., copyrights) "
"\"for limited Times.\""
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:10346 freeculture.xml:11799
msgid "Jaszi, Peter"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10337
msgid ""
"In the past forty years, Congress has gotten into the practice of extending "
"existing terms of copyright protection. What puzzled me about this was, if "
"Congress has the power to extend existing terms, then the Constitution's "
"requirement that terms be \"limited\" will have no practical effect. If "
"every time a copyright is about to expire, Congress has the power to extend "
"its term, then Congress can achieve what the Constitution plainly "
"forbids&mdash;perpetual terms \"on the installment plan,\" as Professor "
"Peter Jaszi so nicely put it.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10349
msgid ""
"As an academic, my first response was to hit the books. I remember sitting "
"late at the office, scouring on-line databases for any serious consideration "
"of the question. No one had ever challenged Congress's practice of extending "
"existing terms. That failure may in part be why Congress seemed so "
"untroubled in its habit. That, and the fact that the practice had become so "
"lucrative for Congress. Congress knows that copyright owners will be willing "
"to pay a great deal of money to see their copyright terms extended. And so "
"Congress is quite happy to keep this gravy train going."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10360
msgid ""
"For this is the core of the corruption in our present system of "
"government. \"Corruption\" not in the sense that representatives are "
"bribed.  Rather, \"corruption\" in the sense that the system induces the "
"beneficiaries of Congress's acts to raise and give money to Congress to "
"induce it to act. There's only so much time; there's only so much Congress "
"can do. Why not limit its actions to those things it must do&mdash;and those "
"things that pay? Extending copyright terms pays."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10369
msgid ""
"If that's not obvious to you, consider the following: Say you're one of the "
"very few lucky copyright owners whose copyright continues to make money one "
"hundred years after it was created. The Estate of Robert Frost is a good "
"example. Frost died in 1963. His poetry continues to be extraordinarily "
"valuable. Thus the Robert Frost estate benefits greatly from any extension "
"of copyright, since no publisher would pay the estate any money if the poems "
"Frost wrote could be published by anyone for free."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10379
msgid ""
"So imagine the Robert Frost estate is earning $100,000 a year from three of "
"Frost's poems. And imagine the copyright for those poems is about to "
"expire. You sit on the board of the Robert Frost estate.  Your financial "
"adviser comes to your board meeting with a very grim report:"
msgstr ""

#.  PAGE BREAK 224 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10386
msgid ""
"\"Next year,\" the adviser announces, \"our copyrights in works A, B, and C "
"will expire. That means that after next year, we will no longer be receiving "
"the annual royalty check of $100,000 from the publishers of those works."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10394
msgid ""
"\"There's a proposal in Congress, however,\" she continues, \"that could "
"change this. A few congressmen are floating a bill to extend the terms of "
"copyright by twenty years. That bill would be extraordinarily valuable to "
"us. So we should hope this bill passes.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10400
msgid ""
"\"Hope?\" a fellow board member says. \"Can't we be doing something about "
"it?\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10404
msgid ""
"\"Well, obviously, yes,\" the adviser responds. \"We could contribute to the "
"campaigns of a number of representatives to try to assure that they support "
"the bill.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10409
msgid ""
"You hate politics. You hate contributing to campaigns. So you want to know "
"whether this disgusting practice is worth it. \"How much would we get if "
"this extension were passed?\" you ask the adviser. \"How much is it worth?\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10415
msgid ""
"\"Well,\" the adviser says, \"if you're confident that you will continue to "
"get at least $100,000 a year from these copyrights, and you use the "
"`discount rate' that we use to evaluate estate investments (6 percent), then "
"this law would be worth $1,146,000 to the estate.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10421
msgid ""
"You're a bit shocked by the number, but you quickly come to the correct "
"conclusion:"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10425
msgid ""
"\"So you're saying it would be worth it for us to pay more than $1,000,000 "
"in campaign contributions if we were confident those contributions would "
"assure that the bill was passed?\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10431
msgid ""
"\"Absolutely,\" the adviser responds. \"It is worth it to you to contribute "
"up to the `present value' of the income you expect from these "
"copyrights. Which for us means over $1,000,000.\""
msgstr ""

#.  PAGE BREAK 225 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10437
msgid ""
"You quickly get the point&mdash;you as the member of the board and, I trust, "
"you the reader. Each time copyrights are about to expire, every beneficiary "
"in the position of the Robert Frost estate faces the same choice: If they "
"can contribute to get a law passed to extend copyrights, they will benefit "
"greatly from that extension. And so each time copyrights are about to "
"expire, there is a massive amount of lobbying to get the copyright term "
"extended."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10448
msgid ""
"Thus a congressional perpetual motion machine: So long as legislation can be "
"bought (albeit indirectly), there will be all the incentive in the world to "
"buy further extensions of copyright."
msgstr ""

#.  f3. 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:10460
msgid ""
"Associated Press, \"Disney Lobbying for Copyright Extension No Mickey Mouse "
"Effort; Congress OKs Bill Granting Creators 20 More Years,\" "
"<citetitle>Chicago Tribune</citetitle>, 17 October 1998, 22."
msgstr ""

#.  f4. 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:10467
msgid ""
"See Nick Brown, \"Fair Use No More?: Copyright in the Information Age,\" "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #49</ulink>."
msgstr ""

#.  f5. 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:10475
msgid ""
"Alan K. Ota, \"Disney in Washington: The Mouse That Roars,\" "
"<citetitle>Congressional Quarterly This Week</citetitle>, 8 August 1990, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #50</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10453
msgid ""
"In the lobbying that led to the passage of the Sonny Bono Copyright Term "
"Extension Act, this \"theory\" about incentives was proved real. Ten of the "
"thirteen original sponsors of the act in the House received the maximum "
"contribution from Disney's political action committee; in the Senate, eight "
"of the twelve sponsors received contributions.<placeholder type=\"footnote\" "
"id=\"0\"/> The RIAA and the MPAA are estimated to have spent over $1.5 "
"million lobbying in the 1998 election cycle. They paid out more than "
"$200,000 in campaign contributions.<placeholder type=\"footnote\" id=\"1\"/> "
"Disney is estimated to have contributed more than $800,000 to reelection "
"campaigns in the cycle.<placeholder type=\"footnote\" id=\"2\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10482
msgid ""
"Constitutional law is not oblivious to the obvious. Or at least, it need not "
"be. So when I was considering Eldred's complaint, this reality about the "
"never-ending incentives to increase the copyright term was central to my "
"thinking. In my view, a pragmatic court committed to interpreting and "
"applying the Constitution of our framers would see that if Congress has the "
"power to extend existing terms, then there would be no effective "
"constitutional requirement that terms be \"limited.\" If they could extend "
"it once, they would extend it again and again and again."
msgstr ""

#.  PAGE BREAK 226 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10495
msgid ""
"It was also my judgment that <emphasis>this</emphasis> Supreme Court would "
"not allow Congress to extend existing terms. As anyone close to the Supreme "
"Court's work knows, this Court has increasingly restricted the power of "
"Congress when it has viewed Congress's actions as exceeding the power "
"granted to it by the Constitution. Among constitutional scholars, the most "
"famous example of this trend was the Supreme Court's decision in 1995 to "
"strike down a law that banned the possession of guns near schools."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10508
msgid ""
"Since 1937, the Supreme Court had interpreted Congress's granted powers very "
"broadly; so, while the Constitution grants Congress the power to regulate "
"only \"commerce among the several states\" (aka \"interstate commerce\"), "
"the Supreme Court had interpreted that power to include the power to "
"regulate any activity that merely affected interstate commerce."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10518
msgid ""
"As the economy grew, this standard increasingly meant that there was no "
"limit to Congress's power to regulate, since just about every activity, when "
"considered on a national scale, affects interstate commerce.  A Constitution "
"designed to limit Congress's power was instead interpreted to impose no "
"limit."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10525
msgid ""
"The Supreme Court, under Chief Justice Rehnquist's command, changed that in "
"<citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>. The "
"government had argued that possessing guns near schools affected interstate "
"commerce. Guns near schools increase crime, crime lowers property values, "
"and so on. In the oral argument, the Chief Justice asked the government "
"whether there was any activity that would not affect interstate commerce "
"under the reasoning the government advanced. The government said there was "
"not; if Congress says an activity affects interstate commerce, then that "
"activity affects interstate commerce. The Supreme Court, the government "
"said, was not in the position to second-guess Congress."
msgstr ""

#.  f6. 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:10540
msgid ""
"<citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>, 514 "
"U.S. 549, 564 (1995)."
msgstr ""

#.  f7. 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:10547
msgid ""
"<citetitle>United States</citetitle> v. <citetitle>Morrison</citetitle>, 529 "
"U.S. 598 (2000)."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10538
msgid ""
"\"We pause to consider the implications of the government's arguments,\" the "
"Chief Justice wrote.<placeholder type=\"footnote\" id=\"0\"/> If anything "
"Congress says is interstate commerce must therefore be considered interstate "
"commerce, then there would be no limit to Congress's power. The decision in "
"<citetitle>Lopez</citetitle> was reaffirmed five years later in "
"<citetitle>United States</citetitle> "
"v. <citetitle>Morrison</citetitle>.<placeholder type=\"footnote\" id=\"1\"/>"
msgstr ""

#.  f8. 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:10554
msgid ""
"If it is a principle about enumerated powers, then the principle carries "
"from one enumerated power to another. The animating point in the context of "
"the Commerce Clause was that the interpretation offered by the government "
"would allow the government unending power to regulate commerce&mdash;the "
"limitation to interstate commerce notwithstanding. The same point is true in "
"the context of the Copyright Clause. Here, too, the government's "
"interpretation would allow the government unending power to regulate "
"copyrights&mdash;the limitation to \"limited times\" notwithstanding."
msgstr ""

#.  PAGE BREAK 227 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10551
msgid ""
"If a principle were at work here, then it should apply to the Progress "
"Clause as much as the Commerce Clause.<placeholder type=\"footnote\" "
"id=\"0\"/> And if it is applied to the Progress Clause, the principle should "
"yield the conclusion that Congress can't extend an existing term. If "
"Congress could extend an existing term, then there would be no \"stopping "
"point\" to Congress's power over terms, though the Constitution expressly "
"states that there is such a limit. Thus, the same principle applied to the "
"power to grant copyrights should entail that Congress is not allowed to "
"extend the term of existing copyrights."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10575
msgid ""
"<emphasis>If</emphasis>, that is, the principle announced in "
"<citetitle>Lopez</citetitle> stood for a principle.  Many believed the "
"decision in <citetitle>Lopez</citetitle> stood for politics&mdash;a "
"conservative Supreme Court, which believed in states' rights, using its "
"power over Congress to advance its own personal political preferences. But I "
"rejected that view of the Supreme Court's decision. Indeed, shortly after "
"the decision, I wrote an article demonstrating the \"fidelity\" in such an "
"interpretation of the Constitution. The idea that the Supreme Court decides "
"cases based upon its politics struck me as extraordinarily boring.  I was "
"not going to devote my life to teaching constitutional law if these nine "
"Justices were going to be petty politicians."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10588
msgid ""
"Now let's pause for a moment to make sure we understand what the argument in "
"<citetitle>Eldred</citetitle> was not about. By insisting on the "
"Constitution's limits to copyright, obviously Eldred was not endorsing "
"piracy.  Indeed, in an obvious sense, he was fighting a kind of "
"piracy&mdash;piracy of the public domain. When Robert Frost wrote his work "
"and when Walt Disney created Mickey Mouse, the maximum copyright term was "
"just fifty-six years. Because of interim changes, Frost and Disney had "
"already enjoyed a seventy-five-year monopoly for their work. They had gotten "
"the benefit of the bargain that the Constitution envisions: In exchange for "
"a monopoly protected for fifty-six years, they created new work. But now "
"these entities were using their power&mdash;expressed through the power of "
"lobbyists' money&mdash;to get another twenty-year dollop of monopoly. That "
"twenty-year dollop would be taken from the public domain. Eric Eldred was "
"fighting a piracy that affects us all."
msgstr ""

#.  f9. 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:10611
msgid ""
"Brief of the Nashville Songwriters Association, "
"<citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 537 U.S.  "
"186 (2003) (No. 01-618), n.10, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #51</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:10619
msgid "Nashville Songwriters Association"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10605
msgid ""
"Some people view the public domain with contempt. In their brief before the "
"Supreme Court, the Nashville Songwriters Association wrote that the public "
"domain is nothing more than \"legal piracy.\"<placeholder type=\"footnote\" "
"id=\"0\"/> But it is not piracy when the law allows it; and in our "
"constitutional system, our law requires it. Some may not like the "
"Constitution's requirements, but that doesn't make the Constitution a "
"pirate's charter.  <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10622
msgid ""
"As we've seen, our constitutional system requires limits on copyright as a "
"way to assure that copyright holders do not too heavily influence the "
"development and distribution of our culture. Yet, as Eric Eldred discovered, "
"we have set up a system that assures that copyright terms will be repeatedly "
"extended, and extended, and extended. We have created the perfect storm for "
"the public domain. Copyrights have not expired, and will not expire, so long "
"as Congress is free to be bought to extend them again."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10634
msgid ""
"It is valuable copyrights that are responsible for terms being extended.  "
"Mickey Mouse and \"Rhapsody in Blue.\" These works are too valuable for "
"copyright owners to ignore. But the real harm to our society from copyright "
"extensions is not that Mickey Mouse remains Disney's.  Forget Mickey "
"Mouse. Forget Robert Frost. Forget all the works from the 1920s and 1930s "
"that have continuing commercial value. The real harm of term extension comes "
"not from these famous works. The real harm is to the works that are not "
"famous, not commercially exploited, and no longer available as a result."
msgstr ""

#.  f10. 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:10655
msgid ""
"The figure of 2 percent is an extrapolation from the study by the "
"Congressional Research Service, in light of the estimated renewal "
"ranges. See Brief of Petitioners, <citetitle>Eldred</citetitle> "
"v. <citetitle>Ashcroft</citetitle>, 7, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #52</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10649
msgid ""
"If you look at the work created in the first twenty years (1923 to 1942) "
"affected by the Sonny Bono Copyright Term Extension Act, 2 percent of that "
"work has any continuing commercial value. It was the copyright holders for "
"that 2 percent who pushed the CTEA through.  But the law and its effect were "
"not limited to that 2 percent. The law extended the terms of copyright "
"generally.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 229 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10664
msgid ""
"Think practically about the consequence of this extension&mdash;practically, "
"as a businessperson, and not as a lawyer eager for more legal work. In 1930, "
"10,047 books were published. In 2000, 174 of those books were still in "
"print. Let's say you were Brewster Kahle, and you wanted to make available "
"to the world in your iArchive project the remaining 9,873. What would you "
"have to do?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10676
msgid ""
"Well, first, you'd have to determine which of the 9,873 books were still "
"under copyright. That requires going to a library (these data are not "
"on-line) and paging through tomes of books, cross-checking the titles and "
"authors of the 9,873 books with the copyright registration and renewal "
"records for works published in 1930. That will produce a list of books still "
"under copyright."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10684
msgid ""
"Then for the books still under copyright, you would need to locate the "
"current copyright owners. How would you do that?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10688
msgid ""
"Most people think that there must be a list of these copyright owners "
"somewhere. Practical people think this way. How could there be thousands and "
"thousands of government monopolies without there being at least a list?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10695
msgid ""
"But there is no list. There may be a name from 1930, and then in 1959, of "
"the person who registered the copyright. But just think practically about "
"how impossibly difficult it would be to track down thousands of such "
"records&mdash;especially since the person who registered is not necessarily "
"the current owner. And we're just talking about 1930!"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10704
msgid ""
"\"But there isn't a list of who owns property generally,\" the apologists "
"for the system respond. \"Why should there be a list of copyright owners?\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10709
msgid ""
"Well, actually, if you think about it, there <emphasis>are</emphasis> plenty "
"of lists of who owns what property. Think about deeds on houses, or titles "
"to cars.  And where there isn't a list, the code of real space is pretty "
"good at suggesting who the owner of a bit of property is. (A swing set in "
"your backyard is probably yours.) So formally or informally, we have a "
"pretty good way to know who owns what tangible property."
msgstr ""

#.  PAGE BREAK 230 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10718
msgid ""
"So: You walk down a street and see a house. You can know who owns the house "
"by looking it up in the courthouse registry. If you see a car, there is "
"ordinarily a license plate that will link the owner to the car. If you see a "
"bunch of children's toys sitting on the front lawn of a house, it's fairly "
"easy to determine who owns the toys. And if you happen to see a baseball "
"lying in a gutter on the side of the road, look around for a second for some "
"kids playing ball. If you don't see any kids, then okay: Here's a bit of "
"property whose owner we can't easily determine. It is the exception that "
"proves the rule: that we ordinarily know quite well who owns what property."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10733
msgid ""
"Compare this story to intangible property. You go into a library.  The "
"library owns the books. But who owns the copyrights? As I've already "
"described, there's no list of copyright owners. There are authors' names, of "
"course, but their copyrights could have been assigned, or passed down in an "
"estate like Grandma's old jewelry. To know who owns what, you would have to "
"hire a private detective. The bottom line: The owner cannot easily be "
"located. And in a regime like ours, in which it is a felony to use such "
"property without the property owner's permission, the property isn't going "
"to be used."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10745
msgid ""
"The consequence with respect to old books is that they won't be digitized, "
"and hence will simply rot away on shelves. But the consequence for other "
"creative works is much more dire."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:10750
msgid "Agee, Michael"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:10751 freeculture.xml:11182
msgid "Hal Roach Studios"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:10752
msgid "Laurel and Hardy Films"
msgstr ""

#.  f11. 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:10765
msgid ""
"See David G. Savage, \"High Court Scene of Showdown on Copyright Law,\" "
"<citetitle>Los Angeles Times</citetitle>, 6 October 2002; David Streitfeld, "
"\"Classic Movies, Songs, Books at Stake; Supreme Court Hears Arguments Today "
"on Striking Down Copyright Extension,\" <citetitle>Orlando Sentinel "
"Tribune</citetitle>, 9 October 2002."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:10771
msgid "Lucky Dog, The"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10754
msgid ""
"Consider the story of Michael Agee, chairman of Hal Roach Studios, which "
"owns the copyrights for the Laurel and Hardy films. Agee is a direct "
"beneficiary of the Bono Act. The Laurel and Hardy films were made between "
"1921 and 1951. Only one of these films, <citetitle>The Lucky "
"Dog</citetitle>, is currently out of copyright. But for the CTEA, films made "
"after 1923 would have begun entering the public domain. Because Agee "
"controls the exclusive rights for these popular films, he makes a great deal "
"of money. According to one estimate, \"Roach has sold about 60,000 "
"videocassettes and 50,000 DVDs of the duo's silent films.\"<placeholder "
"type=\"footnote\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10774
msgid ""
"Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in this "
"culture: selflessness. He argued in a brief before the Supreme Court that "
"the Sonny Bono Copyright Term Extension Act will, if left standing, destroy "
"a whole generation of American film."
msgstr ""

#.  PAGE BREAK 231 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10780
msgid ""
"His argument is straightforward. A tiny fraction of this work has any "
"continuing commercial value. The rest&mdash;to the extent it survives at "
"all&mdash;sits in vaults gathering dust. It may be that some of this work "
"not now commercially valuable will be deemed to be valuable by the owners of "
"the vaults. For this to occur, however, the commercial benefit from the work "
"must exceed the costs of making the work available for distribution."
msgstr ""

#.  f12. 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:10798
msgid ""
"Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the "
"Petitoners, <citetitle>Eldred</citetitle> "
"v. <citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01- 618), "
"12. See also Brief of Amicus Curiae filed on behalf of Petitioners by the "
"Internet Archive, <citetitle>Eldred</citetitle> "
"v. <citetitle>Ashcroft</citetitle>, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #53</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10791
msgid ""
"We can't know the benefits, but we do know a lot about the costs.  For most "
"of the history of film, the costs of restoring film were very high; digital "
"technology has lowered these costs substantially. While it cost more than "
"$10,000 to restore a ninety-minute black-and-white film in 1993, it can now "
"cost as little as $100 to digitize one hour of mm film.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10808
msgid ""
"Restoration technology is not the only cost, nor the most important.  "
"Lawyers, too, are a cost, and increasingly, a very important one. In "
"addition to preserving the film, a distributor needs to secure the rights.  "
"And to secure the rights for a film that is under copyright, you need to "
"locate the copyright owner."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10816
msgid ""
"Or more accurately, <emphasis>owners</emphasis>. As we've seen, there isn't "
"only a single copyright associated with a film; there are many. There isn't "
"a single person whom you can contact about those copyrights; there are as "
"many as can hold the rights, which turns out to be an extremely large "
"number. Thus the costs of clearing the rights to these films is "
"exceptionally high."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10824
msgid ""
"\"But can't you just restore the film, distribute it, and then pay the "
"copyright owner when she shows up?\" Sure, if you want to commit a "
"felony. And even if you're not worried about committing a felony, when she "
"does show up, she'll have the right to sue you for all the profits you have "
"made. So, if you're successful, you can be fairly confident you'll be "
"getting a call from someone's lawyer. And if you're not successful, you "
"won't make enough to cover the costs of your own lawyer. Either way, you "
"have to talk to a lawyer. And as is too often the case, saying you have to "
"talk to a lawyer is the same as saying you won't make any money."
msgstr ""

#.  PAGE BREAK 232 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10835
msgid ""
"For some films, the benefit of releasing the film may well exceed these "
"costs. But for the vast majority of them, there is no way the benefit would "
"outweigh the legal costs. Thus, for the vast majority of old films, Agee "
"argued, the film will not be restored and distributed until the copyright "
"expires."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10845
msgid ""
"But by the time the copyright for these films expires, the film will have "
"expired. These films were produced on nitrate-based stock, and nitrate stock "
"dissolves over time. They will be gone, and the metal canisters in which "
"they are now stored will be filled with nothing more than dust."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10853
msgid ""
"Of all the creative work produced by humans anywhere, a tiny fraction has "
"continuing commercial value. For that tiny fraction, the copyright is a "
"crucially important legal device. For that tiny fraction, the copyright "
"creates incentives to produce and distribute the creative work. For that "
"tiny fraction, the copyright acts as an \"engine of free expression.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10862
msgid ""
"But even for that tiny fraction, the actual time during which the creative "
"work has a commercial life is extremely short. As I've indicated, most books "
"go out of print within one year. The same is true of music and "
"film. Commercial culture is sharklike. It must keep moving.  And when a "
"creative work falls out of favor with the commercial distributors, the "
"commercial life ends."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10872
msgid ""
"Yet that doesn't mean the life of the creative work ends. We don't keep "
"libraries of books in order to compete with Barnes &amp; Noble, and we don't "
"have archives of films because we expect people to choose between spending "
"Friday night watching new movies and spending Friday night watching a 1930 "
"news documentary. The noncommercial life of culture is important and "
"valuable&mdash;for entertainment but also, and more importantly, for "
"knowledge. To understand who we are, and where we came from, and how we have "
"made the mistakes that we have, we need to have access to this history."
msgstr ""

#.  PAGE BREAK 233 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10885
msgid ""
"Copyrights in this context do not drive an engine of free expression.  In "
"this context, there is no need for an exclusive right. Copyrights in this "
"context do no good."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10892
msgid ""
"Yet, for most of our history, they also did little harm. For most of our "
"history, when a work ended its commercial life, there was no "
"<emphasis>copyright-related use</emphasis> that would be inhibited by an "
"exclusive right.  When a book went out of print, you could not buy it from a "
"publisher.  But you could still buy it from a used book store, and when a "
"used book store sells it, in America, at least, there is no need to pay the "
"copyright owner anything. Thus, the ordinary use of a book after its "
"commercial life ended was a use that was independent of copyright law."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10903
msgid ""
"The same was effectively true of film. Because the costs of restoring a "
"film&mdash;the real economic costs, not the lawyer costs&mdash;were so high, "
"it was never at all feasible to preserve or restore film. Like the remains "
"of a great dinner, when it's over, it's over. Once a film passed out of its "
"commercial life, it may have been archived for a bit, but that was the end "
"of its life so long as the market didn't have more to offer."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10912
msgid ""
"In other words, though copyright has been relatively short for most of our "
"history, long copyrights wouldn't have mattered for the works that lost "
"their commercial value. Long copyrights for these works would not have "
"interfered with anything."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10918
msgid "But this situation has now changed."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10921
msgid ""
"One crucially important consequence of the emergence of digital technologies "
"is to enable the archive that Brewster Kahle dreams of.  Digital "
"technologies now make it possible to preserve and give access to all sorts "
"of knowledge. Once a book goes out of print, we can now imagine digitizing "
"it and making it available to everyone, forever. Once a film goes out of "
"distribution, we could digitize it and make it available to everyone, "
"forever. Digital technologies give new life to copyrighted material after it "
"passes out of its commercial life. It is now possible to preserve and assure "
"universal access to this knowledge and culture, whereas before it was not."
msgstr ""

#.  PAGE BREAK 234 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10934
msgid ""
"And now copyright law does get in the way. Every step of producing this "
"digital archive of our culture infringes on the exclusive right of "
"copyright. To digitize a book is to copy it. To do that requires permission "
"of the copyright owner. The same with music, film, or any other aspect of "
"our culture protected by copyright. The effort to make these things "
"available to history, or to researchers, or to those who just want to "
"explore, is now inhibited by a set of rules that were written for a "
"radically different context."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10944
msgid ""
"Here is the core of the harm that comes from extending terms: Now that "
"technology enables us to rebuild the library of Alexandria, the law gets in "
"the way. And it doesn't get in the way for any useful "
"<emphasis>copyright</emphasis> purpose, for the purpose of copyright is to "
"enable the commercial market that spreads culture. No, we are talking about "
"culture after it has lived its commercial life. In this context, copyright "
"is serving no purpose <emphasis>at all</emphasis> related to the spread of "
"knowledge. In this context, copyright is not an engine of free "
"expression. Copyright is a brake."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10955
msgid ""
"You may well ask, \"But if digital technologies lower the costs for Brewster "
"Kahle, then they will lower the costs for Random House, too.  So won't "
"Random House do as well as Brewster Kahle in spreading culture widely?\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10961
msgid ""
"Maybe. Someday. But there is absolutely no evidence to suggest that "
"publishers would be as complete as libraries. If Barnes &amp; Noble offered "
"to lend books from its stores for a low price, would that eliminate the need "
"for libraries? Only if you think that the only role of a library is to serve "
"what \"the market\" would demand. But if you think the role of a library is "
"bigger than this&mdash;if you think its role is to archive culture, whether "
"there's a demand for any particular bit of that culture or not&mdash;then we "
"can't count on the commercial market to do our library work for us."
msgstr ""

#.  f13. 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:10984
msgid ""
"Jason Schultz, \"The Myth of the 1976 Copyright `Chaos' Theory,\" 20 "
"December 2002, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #54</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10972
msgid ""
"I would be the first to agree that it should do as much as it can: We should "
"rely upon the market as much as possible to spread and enable culture. My "
"message is absolutely not antimarket. But where we see the market is not "
"doing the job, then we should allow nonmarket forces the freedom to fill the "
"gaps. As one researcher calculated for American culture, 94 percent of the "
"films, books, and music produced between and 1946 is not commercially "
"available. However much you love the commercial market, if access is a "
"value, then 6 percent is a failure to provide that value.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10991
msgid ""
"In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal "
"district court in Washington, D.C., asking the court to declare the Sonny "
"Bono Copyright Term Extension Act unconstitutional. The two central claims "
"that we made were (1) that extending existing terms violated the "
"Constitution's \"limited Times\" requirement, and (2) that extending terms "
"by another twenty years violated the First Amendment."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10999
msgid ""
"The district court dismissed our claims without even hearing an argument.  A "
"panel of the Court of Appeals for the D.C. Circuit also dismissed our "
"claims, though after hearing an extensive argument. But that decision at "
"least had a dissent, by one of the most conservative judges on that "
"court. That dissent gave our claims life."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11006
msgid ""
"Judge David Sentelle said the CTEA violated the requirement that copyrights "
"be for \"limited Times\" only. His argument was as elegant as it was simple: "
"If Congress can extend existing terms, then there is no \"stopping point\" "
"to Congress's power under the Copyright Clause. The power to extend existing "
"terms means Congress is not required to grant terms that are \"limited.\" "
"Thus, Judge Sentelle argued, the court had to interpret the term \"limited "
"Times\" to give it meaning. And the best interpretation, Judge Sentelle "
"argued, would be to deny Congress the power to extend existing terms."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11017
msgid ""
"We asked the Court of Appeals for the D.C. Circuit as a whole to hear the "
"case. Cases are ordinarily heard in panels of three, except for important "
"cases or cases that raise issues specific to the circuit as a whole, where "
"the court will sit \"en banc\" to hear the case."
msgstr ""

#.  PAGE BREAK 236 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11023
msgid ""
"The Court of Appeals rejected our request to hear the case en banc.  This "
"time, Judge Sentelle was joined by the most liberal member of the "
"D.C. Circuit, Judge David Tatel. Both the most conservative and the most "
"liberal judges in the D.C. Circuit believed Congress had overstepped its "
"bounds."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11032
msgid ""
"It was here that most expected Eldred v. Ashcroft would die, for the Supreme "
"Court rarely reviews any decision by a court of appeals. (It hears about one "
"hundred cases a year, out of more than five thousand appeals.) And it "
"practically never reviews a decision that upholds a statute when no other "
"court has yet reviewed the statute."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11039
msgid ""
"But in February 2002, the Supreme Court surprised the world by granting our "
"petition to review the D.C. Circuit opinion. Argument was set for October of "
"2002. The summer would be spent writing briefs and preparing for argument."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11045
msgid ""
"It is over a year later as I write these words. It is still astonishingly "
"hard. If you know anything at all about this story, you know that we lost "
"the appeal. And if you know something more than just the minimum, you "
"probably think there was no way this case could have been won. After our "
"defeat, I received literally thousands of missives by well-wishers and "
"supporters, thanking me for my work on behalf of this noble but doomed "
"cause. And none from this pile was more significant to me than the e-mail "
"from my client, Eric Eldred."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11055
msgid ""
"But my client and these friends were wrong. This case could have been "
"won. It should have been won. And no matter how hard I try to retell this "
"story to myself, I can never escape believing that my own mistake lost it."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11060 freeculture.xml:11074
msgid "Steward, Geoffrey"
msgstr ""

#.  PAGE BREAK 237 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11062
msgid ""
"The mistake was made early, though it became obvious only at the very "
"end. Our case had been supported from the very beginning by an extraordinary "
"lawyer, Geoffrey Stewart, and by the law firm he had moved to, Jones, Day, "
"Reavis and Pogue. Jones Day took a great deal of heat from its "
"copyright-protectionist clients for supporting us. They ignored this "
"pressure (something that few law firms today would ever do), and throughout "
"the case, they gave it everything they could."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11072 freeculture.xml:11420 freeculture.xml:11435 freeculture.xml:11528 freeculture.xml:11742 freeculture.xml:11773 freeculture.xml:11866
msgid "Ayer, Don"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11073
msgid "Bromberg, Dan"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11076
msgid ""
"There were three key lawyers on the case from Jones Day. Geoff Stewart was "
"the first, but then Dan Bromberg and Don Ayer became quite "
"involved. Bromberg and Ayer in particular had a common view about how this "
"case would be won: We would only win, they repeatedly told me, if we could "
"make the issue seem \"important\" to the Supreme Court. It had to seem as if "
"dramatic harm were being done to free speech and free culture; otherwise, "
"they would never vote against \"the most powerful media companies in the "
"world.\""
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11086
msgid ""
"I hate this view of the law. Of course I thought the Sonny Bono Act was a "
"dramatic harm to free speech and free culture. Of course I still think it "
"is. But the idea that the Supreme Court decides the law based on how "
"important they believe the issues are is just wrong. It might be \"right\" "
"as in \"true,\" I thought, but it is \"wrong\" as in \"it just shouldn't be "
"that way.\" As I believed that any faithful interpretation of what the "
"framers of our Constitution did would yield the conclusion that the CTEA was "
"unconstitutional, and as I believed that any faithful interpretation of what "
"the First Amendment means would yield the conclusion that the power to "
"extend existing copyright terms is unconstitutional, I was not persuaded "
"that we had to sell our case like soap.  Just as a law that bans the "
"swastika is unconstitutional not because the Court likes Nazis but because "
"such a law would violate the Constitution, so too, in my view, would the "
"Court decide whether Congress's law was constitutional based on the "
"Constitution, not based on whether they liked the values that the framers "
"put in the Constitution."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11107
msgid ""
"In any case, I thought, the Court must already see the danger and the harm "
"caused by this sort of law. Why else would they grant review? There was no "
"reason to hear the case in the Supreme Court if they weren't convinced that "
"this regulation was harmful. So in my view, we didn't need to persuade them "
"that this law was bad, we needed to show why it was unconstitutional."
msgstr ""

#.  PAGE BREAK 238 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11115
msgid ""
"There was one way, however, in which I felt politics would matter and in "
"which I thought a response was appropriate. I was convinced that the Court "
"would not hear our arguments if it thought these were just the arguments of "
"a group of lefty loons. This Supreme Court was not about to launch into a "
"new field of judicial review if it seemed that this field of review was "
"simply the preference of a small political minority.  Although my focus in "
"the case was not to demonstrate how bad the Sonny Bono Act was but to "
"demonstrate that it was unconstitutional, my hope was to make this argument "
"against a background of briefs that covered the full range of political "
"views. To show that this claim against the CTEA was grounded in "
"<emphasis>law</emphasis> and not politics, then, we tried to gather the "
"widest range of credible critics&mdash;credible not because they were rich "
"and famous, but because they, in the aggregate, demonstrated that this law "
"was unconstitutional regardless of one's politics."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:11146 freeculture.xml:11172
msgid "Eagle Forum"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:11147
msgid "Schlafly, Phyllis"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11134
msgid ""
"The first step happened all by itself. Phyllis Schlafly's organization, "
"Eagle Forum, had been an opponent of the CTEA from the very beginning.  "
"Mrs. Schlafly viewed the CTEA as a sellout by Congress. In November 1998, "
"she wrote a stinging editorial attacking the Republican Congress for "
"allowing the law to pass. As she wrote, \"Do you sometimes wonder why bills "
"that create a financial windfall to narrow special interests slide easily "
"through the intricate legislative process, while bills that benefit the "
"general public seem to get bogged down?\" The answer, as the editorial "
"documented, was the power of money.  Schlafly enumerated Disney's "
"contributions to the key players on the committees. It was money, not "
"justice, that gave Mickey Mouse twenty more years in Disney's control, "
"Schlafly argued.  <placeholder type=\"indexterm\" id=\"0\"/> <placeholder "
"type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11150
msgid ""
"In the Court of Appeals, Eagle Forum was eager to file a brief supporting "
"our position. Their brief made the argument that became the core claim in "
"the Supreme Court: If Congress can extend the term of existing copyrights, "
"there is no limit to Congress's power to set terms.  That strong "
"conservative argument persuaded a strong conservative judge, Judge Sentelle."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11158
msgid ""
"In the Supreme Court, the briefs on our side were about as diverse as it "
"gets. They included an extraordinary historical brief by the Free Software "
"Foundation (home of the GNU project that made GNU/ Linux possible). They "
"included a powerful brief about the costs of uncertainty by Intel. There "
"were two law professors' briefs, one by copyright scholars and one by First "
"Amendment scholars. There was an exhaustive and uncontroverted brief by the "
"world's experts in the history of the Progress Clause. And of course, there "
"was a new brief by Eagle Forum, repeating and strengthening its arguments.  "
"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
"id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> <placeholder "
"type=\"indexterm\" id=\"3\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:11179
msgid "American Association of Law Libraries"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:11180
msgid "National Writers Union"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11175
msgid ""
"Those briefs framed a legal argument. Then to support the legal argument, "
"there were a number of powerful briefs by libraries and archives, including "
"the Internet Archive, the American Association of Law Libraries, and the "
"National Writers Union.  <placeholder type=\"indexterm\" id=\"0\"/> "
"<placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11184
msgid ""
"But two briefs captured the policy argument best. One made the argument I've "
"already described: A brief by Hal Roach Studios argued that unless the law "
"was struck, a whole generation of American film would disappear. The other "
"made the economic argument absolutely clear."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11190
msgid "Akerlof, George"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11191
msgid "Arrow, Kenneth"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11192
msgid "Buchanan, James"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11193
msgid "Coase, Ronald"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11194
msgid "Friedman, Milton"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11196
msgid ""
"This economists' brief was signed by seventeen economists, including five "
"Nobel Prize winners, including Ronald Coase, James Buchanan, Milton "
"Friedman, Kenneth Arrow, and George Akerlof. The economists, as the list of "
"Nobel winners demonstrates, spanned the political spectrum. Their "
"conclusions were powerful: There was no plausible claim that extending the "
"terms of existing copyrights would do anything to increase incentives to "
"create. Such extensions were nothing more than \"rent-seeking\"&mdash;the "
"fancy term economists use to describe special-interest legislation gone "
"wild."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:11219 freeculture.xml:11234 freeculture.xml:11426 freeculture.xml:11778
msgid "Fried, Charles"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:11220
msgid "Morrison, Alan"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:11221
msgid "Public Citizen"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11207
msgid ""
"The same effort at balance was reflected in the legal team we gathered to "
"write our briefs in the case. The Jones Day lawyers had been with us from "
"the start. But when the case got to the Supreme Court, we added three "
"lawyers to help us frame this argument to this Court: Alan Morrison, a "
"lawyer from Public Citizen, a Washington group that had made constitutional "
"history with a series of seminal victories in the Supreme Court defending "
"individual rights; my colleague and dean, Kathleen Sullivan, who had argued "
"many cases in the Court, and who had advised us early on about a First "
"Amendment strategy; and finally, former solicitor general Charles Fried.  "
"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
"id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11224
msgid ""
"Fried was a special victory for our side. Every other former solicitor "
"general was hired by the other side to defend Congress's power to give media "
"companies the special favor of extended copyright terms. Fried was the only "
"one who turned down that lucrative assignment to stand up for something he "
"believed in. He had been Ronald Reagan's chief lawyer in the Supreme "
"Court. He had helped craft the line of cases that limited Congress's power "
"in the context of the Commerce Clause. And while he had argued many "
"positions in the Supreme Court that I personally disagreed with, his joining "
"the cause was a vote of confidence in our argument.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11237
msgid ""
"The government, in defending the statute, had its collection of friends, as "
"well. Significantly, however, none of these \"friends\" included historians "
"or economists. The briefs on the other side of the case were written "
"exclusively by major media companies, congressmen, and copyright holders."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11244
msgid ""
"The media companies were not surprising. They had the most to gain from the "
"law. The congressmen were not surprising either&mdash;they were defending "
"their power and, indirectly, the gravy train of contributions such power "
"induced. And of course it was not surprising that the copyright holders "
"would defend the idea that they should continue to have the right to control "
"who did what with content they wanted to control."
msgstr ""

#.  f14. 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:11260
msgid ""
"Brief of Amici Dr. Seuss Enterprise et al., <citetitle>Eldred</citetitle> "
"v. <citetitle>Ashcroft</citetitle>, 537 U.S.  (2003) (No. 01-618), 19."
msgstr ""

#.  f15. 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:11268
msgid ""
"Dinitia Smith, \"Immortal Words, Immortal Royalties? Even Mickey Mouse Joins "
"the Fray,\" <citetitle>New York Times</citetitle>, 28 March 1998, B7."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:11275
msgid "Gershwin, George"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11253
msgid ""
"Dr. Seuss's representatives, for example, argued that it was better for the "
"Dr. Seuss estate to control what happened to Dr. Seuss's work&mdash; better "
"than allowing it to fall into the public domain&mdash;because if this "
"creativity were in the public domain, then people could use it to \"glorify "
"drugs or to create pornography.\"<placeholder type=\"footnote\" id=\"0\"/> "
"That was also the motive of the Gershwin estate, which defended its "
"\"protection\" of the work of George Gershwin. They refuse, for example, to "
"license <citetitle>Porgy and Bess</citetitle> to anyone who refuses to use "
"African Americans in the cast.<placeholder type=\"footnote\" id=\"1\"/> "
"That's their view of how this part of American culture should be controlled, "
"and they wanted this law to help them effect that control.  <placeholder "
"type=\"indexterm\" id=\"2\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11278
msgid ""
"This argument made clear a theme that is rarely noticed in this debate.  "
"When Congress decides to extend the term of existing copyrights, Congress is "
"making a choice about which speakers it will favor.  Famous and beloved "
"copyright owners, such as the Gershwin estate and Dr. Seuss, come to "
"Congress and say, \"Give us twenty years to control the speech about these "
"icons of American culture. We'll do better with them than anyone else.\" "
"Congress of course likes to reward the popular and famous by giving them "
"what they want. But when Congress gives people an exclusive right to speak "
"in a certain way, that's just what the First Amendment is traditionally "
"meant to block."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11290
msgid ""
"We argued as much in a final brief. Not only would upholding the CTEA mean "
"that there was no limit to the power of Congress to extend "
"copyrights&mdash;extensions that would further concentrate the market; it "
"would also mean that there was no limit to Congress's power to play "
"favorites, through copyright, with who has the right to speak.  Between "
"February and October, there was little I did beyond preparing for this "
"case. Early on, as I said, I set the strategy."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11299
msgid ""
"The Supreme Court was divided into two important camps. One camp we called "
"\"the Conservatives.\" The other we called \"the Rest.\" The Conservatives "
"included Chief Justice Rehnquist, Justice O'Connor, Justice Scalia, Justice "
"Kennedy, and Justice Thomas. These five had been the most consistent in "
"limiting Congress's power. They were the five who had supported the "
"<citetitle>Lopez/Morrison</citetitle> line of cases that said that an "
"enumerated power had to be interpreted to assure that Congress's powers had "
"limits."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11308 freeculture.xml:11332 freeculture.xml:11671 freeculture.xml:11683
msgid "Breyer, Stephen"
msgstr ""

#.  PAGE BREAK 242 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11310
msgid ""
"The Rest were the four Justices who had strongly opposed limits on "
"Congress's power. These four&mdash;Justice Stevens, Justice Souter, Justice "
"Ginsburg, and Justice Breyer&mdash;had repeatedly argued that the "
"Constitution gives Congress broad discretion to decide how best to implement "
"its powers. In case after case, these justices had argued that the Court's "
"role should be one of deference. Though the votes of these four justices "
"were the votes that I personally had most consistently agreed with, they "
"were also the votes that we were least likely to get."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11322
msgid ""
"In particular, the least likely was Justice Ginsburg's. In addition to her "
"general view about deference to Congress (except where issues of gender are "
"involved), she had been particularly deferential in the context of "
"intellectual property protections. She and her daughter (an excellent and "
"well-known intellectual property scholar) were cut from the same "
"intellectual property cloth. We expected she would agree with the writings "
"of her daughter: that Congress had the power in this context to do as it "
"wished, even if what Congress wished made little sense."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11334
msgid ""
"Close behind Justice Ginsburg were two justices whom we also viewed as "
"unlikely allies, though possible surprises. Justice Souter strongly favored "
"deference to Congress, as did Justice Breyer. But both were also very "
"sensitive to free speech concerns. And as we strongly believed, there was a "
"very important free speech argument against these retrospective extensions."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11342
msgid ""
"The only vote we could be confident about was that of Justice "
"Stevens. History will record Justice Stevens as one of the greatest judges "
"on this Court. His votes are consistently eclectic, which just means that no "
"simple ideology explains where he will stand. But he had consistently argued "
"for limits in the context of intellectual property generally. We were fairly "
"confident he would recognize limits here."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11350
msgid ""
"This analysis of \"the Rest\" showed most clearly where our focus had to be: "
"on the Conservatives. To win this case, we had to crack open these five and "
"get at least a majority to go our way. Thus, the single overriding argument "
"that animated our claim rested on the Conservatives' most important "
"jurisprudential innovation&mdash;the argument that Judge Sentelle had relied "
"upon in the Court of Appeals, that Congress's power must be interpreted so "
"that its enumerated powers have limits."
msgstr ""

#.  PAGE BREAK 243 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11360
msgid ""
"This then was the core of our strategy&mdash;a strategy for which I am "
"responsible. We would get the Court to see that just as with the "
"<citetitle>Lopez</citetitle> case, under the government's argument here, "
"Congress would always have unlimited power to extend existing terms. If "
"anything was plain about Congress's power under the Progress Clause, it was "
"that this power was supposed to be \"limited.\" Our aim would be to get the "
"Court to reconcile <citetitle>Eldred</citetitle> with "
"<citetitle>Lopez</citetitle>: If Congress's power to regulate commerce was "
"limited, then so, too, must Congress's power to regulate copyright be "
"limited."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11374
msgid ""
"The argument on the government's side came down to this: Congress has done "
"it before. It should be allowed to do it again. The government claimed that "
"from the very beginning, Congress has been extending the term of existing "
"copyrights. So, the government argued, the Court should not now say that "
"practice is unconstitutional."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11381
msgid ""
"There was some truth to the government's claim, but not much. We certainly "
"agreed that Congress had extended existing terms in and in 1909. And of "
"course, in 1962, Congress began extending existing terms "
"regularly&mdash;eleven times in forty years."
msgstr ""

#.  PAGE BREAK 244 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11388
msgid ""
"But this \"consistency\" should be kept in perspective. Congress extended "
"existing terms once in the first hundred years of the Republic.  It then "
"extended existing terms once again in the next fifty. Those rare extensions "
"are in contrast to the now regular practice of extending existing "
"terms. Whatever restraint Congress had had in the past, that restraint was "
"now gone. Congress was now in a cycle of extensions; there was no reason to "
"expect that cycle would end. This Court had not hesitated to intervene where "
"Congress was in a similar cycle of extension.  There was no reason it "
"couldn't intervene here.  Oral argument was scheduled for the first week in "
"October. I arrived in D.C. two weeks before the argument. During those two "
"weeks, I was repeatedly \"mooted\" by lawyers who had volunteered to help in "
"the case. Such \"moots\" are basically practice rounds, where wannabe "
"justices fire questions at wannabe winners."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11411
msgid ""
"I was convinced that to win, I had to keep the Court focused on a single "
"point: that if this extension is permitted, then there is no limit to the "
"power to set terms. Going with the government would mean that terms would be "
"effectively unlimited; going with us would give Congress a clear line to "
"follow: Don't extend existing terms. The moots were an effective practice; I "
"found ways to take every question back to this central idea."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11422
msgid ""
"One moot was before the lawyers at Jones Day. Don Ayer was the skeptic. He "
"had served in the Reagan Justice Department with Solicitor General Charles "
"Fried. He had argued many cases before the Supreme Court. And in his review "
"of the moot, he let his concern speak: <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11429
msgid ""
"\"I'm just afraid that unless they really see the harm, they won't be "
"willing to upset this practice that the government says has been a "
"consistent practice for two hundred years. You have to make them see the "
"harm&mdash;passionately get them to see the harm. For if they don't see "
"that, then we haven't any chance of winning.\""
msgstr ""

#.  PAGE BREAK 245 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11437
msgid ""
"He may have argued many cases before this Court, I thought, but he didn't "
"understand its soul. As a clerk, I had seen the Justices do the right "
"thing&mdash;not because of politics but because it was right. As a law "
"professor, I had spent my life teaching my students that this Court does the "
"right thing&mdash;not because of politics but because it is right. As I "
"listened to Ayer's plea for passion in pressing politics, I understood his "
"point, and I rejected it. Our argument was right. That was enough.  Let the "
"politicians learn to see that it was also good.  The night before the "
"argument, a line of people began to form in front of the Supreme Court. The "
"case had become a focus of the press and of the movement to free "
"culture. Hundreds stood in line for the chance to see the "
"proceedings. Scores spent the night on the Supreme Court steps so that they "
"would be assured a seat."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11454
msgid ""
"Not everyone has to wait in line. People who know the Justices can ask for "
"seats they control. (I asked Justice Scalia's chambers for seats for my "
"parents, for example.) Members of the Supreme Court bar can get a seat in a "
"special section reserved for them. And senators and congressmen have a "
"special place where they get to sit, too. And finally, of course, the press "
"has a gallery, as do clerks working for the Justices on the Court. As we "
"entered that morning, there was no place that was not taken. This was an "
"argument about intellectual property law, yet the halls were filled. As I "
"walked in to take my seat at the front of the Court, I saw my parents "
"sitting on the left. As I sat down at the table, I saw Jack Valenti sitting "
"in the special section ordinarily reserved for family of the Justices."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11469
msgid ""
"When the Chief Justice called me to begin my argument, I began where I "
"intended to stay: on the question of the limits on Congress's power. This "
"was a case about enumerated powers, I said, and whether those enumerated "
"powers had any limit."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11475
msgid ""
"Justice O'Connor stopped me within one minute of my opening.  The history "
"was bothering her."
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:11480
msgid ""
"justice o'connor: Congress has extended the term so often through the years, "
"and if you are right, don't we run the risk of upsetting previous extensions "
"of time? I mean, this seems to be a practice that began with the very first "
"act."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11487
msgid ""
"She was quite willing to concede \"that this flies directly in the face of "
"what the framers had in mind.\" But my response again and again was to "
"emphasize limits on Congress's power."
msgstr ""

#.  PAGE BREAK 246 
#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:11493
msgid ""
"mr. lessig: Well, if it flies in the face of what the framers had in mind, "
"then the question is, is there a way of interpreting their words that gives "
"effect to what they had in mind, and the answer is yes."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11501
msgid ""
"There were two points in this argument when I should have seen where the "
"Court was going. The first was a question by Justice Kennedy, who observed,"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:11507
msgid ""
"justice kennedy: Well, I suppose implicit in the argument that the '76 act, "
"too, should have been declared void, and that we might leave it alone "
"because of the disruption, is that for all these years the act has impeded "
"progress in science and the useful arts.  I just don't see any empirical "
"evidence for that."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11515
msgid ""
"Here follows my clear mistake. Like a professor correcting a student, I "
"answered,"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:11521
msgid ""
"mr. lessig: Justice, we are not making an empirical claim at all.  Nothing "
"in our Copyright Clause claim hangs upon the empirical assertion about "
"impeding progress. Our only argument is this is a structural limit necessary "
"to assure that what would be an effectively perpetual term not be permitted "
"under the copyright laws."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11530
msgid ""
"That was a correct answer, but it wasn't the right answer. The right answer "
"was instead that there was an obvious and profound harm. Any number of "
"briefs had been written about it. He wanted to hear it. And here was the "
"place Don Ayer's advice should have mattered. This was a softball; my answer "
"was a swing and a miss."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11537
msgid ""
"The second came from the Chief, for whom the whole case had been "
"crafted. For the Chief Justice had crafted the <citetitle>Lopez</citetitle> "
"ruling, and we hoped that he would see this case as its second cousin."
msgstr ""

#.  PAGE BREAK 247 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11542
msgid ""
"It was clear a second into his question that he wasn't at all sympathetic.  "
"To him, we were a bunch of anarchists. As he asked:"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:11549
msgid ""
"chief justice: Well, but you want more than that. You want the right to copy "
"verbatim other people's books, don't you?"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:11553
msgid ""
"mr. lessig: We want the right to copy verbatim works that should be in the "
"public domain and would be in the public domain but for a statute that "
"cannot be justified under ordinary First Amendment analysis or under a "
"proper reading of the limits built into the Copyright Clause."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11562
msgid ""
"Things went better for us when the government gave its argument; for now the "
"Court picked up on the core of our claim. As Justice Scalia asked Solicitor "
"General Olson,"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:11568
msgid ""
"justice scalia: You say that the functional equivalent of an unlimited time "
"would be a violation [of the Constitution], but that's precisely the "
"argument that's being made by petitioners here, that a limited time which is "
"extendable is the functional equivalent of an unlimited time."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11576
msgid ""
"When Olson was finished, it was my turn to give a closing rebuttal.  Olson's "
"flailing had revived my anger. But my anger still was directed to the "
"academic, not the practical. The government was arguing as if this were the "
"first case ever to consider limits on Congress's Copyright and Patent Clause "
"power. Ever the professor and not the advocate, I closed by pointing out the "
"long history of the Court imposing limits on Congress's power in the name of "
"the Copyright and Patent Clause&mdash; indeed, the very first case striking "
"a law of Congress as exceeding a specific enumerated power was based upon "
"the Copyright and Patent Clause. All true. But it wasn't going to move the "
"Court to my side."
msgstr ""

#.  PAGE BREAK 248 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11589
msgid ""
"As I left the court that day, I knew there were a hundred points I wished I "
"could remake. There were a hundred questions I wished I had answered "
"differently. But one way of thinking about this case left me optimistic."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11597
msgid ""
"The government had been asked over and over again, what is the limit? Over "
"and over again, it had answered there is no limit. This was precisely the "
"answer I wanted the Court to hear. For I could not imagine how the Court "
"could understand that the government believed Congress's power was unlimited "
"under the terms of the Copyright Clause, and sustain the government's "
"argument. The solicitor general had made my argument for me. No matter how "
"often I tried, I could not understand how the Court could find that "
"Congress's power under the Commerce Clause was limited, but under the "
"Copyright Clause, unlimited. In those rare moments when I let myself believe "
"that we may have prevailed, it was because I felt this Court&mdash;in "
"particular, the Conservatives&mdash;would feel itself constrained by the "
"rule of law that it had established elsewhere."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11612
msgid ""
"The morning of January 15, 2003, I was five minutes late to the office and "
"missed the 7:00 A.M. call from the Supreme Court clerk. Listening to the "
"message, I could tell in an instant that she had bad news to report.The "
"Supreme Court had affirmed the decision of the Court of Appeals. Seven "
"justices had voted in the majority. There were two dissents."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11619
msgid ""
"A few seconds later, the opinions arrived by e-mail. I took the phone off "
"the hook, posted an announcement to our blog, and sat down to see where I "
"had been wrong in my reasoning."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11624
msgid ""
"My <emphasis>reasoning</emphasis>. Here was a case that pitted all the money "
"in the world against <emphasis>reasoning</emphasis>. And here was the last "
"naïve law professor, scouring the pages, looking for reasoning."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11630
msgid ""
"I first scoured the opinion, looking for how the Court would distinguish the "
"principle in this case from the principle in "
"<citetitle>Lopez</citetitle>. The argument was nowhere to be found. The case "
"was not even cited. The argument that was the core argument of our case did "
"not even appear in the Court's opinion."
msgstr ""

#.  PAGE BREAK 249 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11639
msgid ""
"Justice Ginsburg simply ignored the enumerated powers argument.  Consistent "
"with her view that Congress's power was not limited generally, she had found "
"Congress's power not limited here."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11644
msgid ""
"Her opinion was perfectly reasonable&mdash;for her, and for Justice "
"Souter. Neither believes in <citetitle>Lopez</citetitle>. It would be too "
"much to expect them to write an opinion that recognized, much less "
"explained, the doctrine they had worked so hard to defeat."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11650
msgid ""
"But as I realized what had happened, I couldn't quite believe what I was "
"reading. I had said there was no way this Court could reconcile limited "
"powers with the Commerce Clause and unlimited powers with the Progress "
"Clause. It had never even occurred to me that they could reconcile the two "
"simply <emphasis>by not addressing the argument</emphasis>. There was no "
"inconsistency because they would not talk about the two together.  There was "
"therefore no principle that followed from the <citetitle>Lopez</citetitle> "
"case: In that context, Congress's power would be limited, but in this "
"context it would not."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11661
msgid ""
"Yet by what right did they get to choose which of the framers' values they "
"would respect? By what right did they&mdash;the silent five&mdash;get to "
"select the part of the Constitution they would enforce based on the values "
"they thought important? We were right back to the argument that I said I "
"hated at the start: I had failed to convince them that the issue here was "
"important, and I had failed to recognize that however much I might hate a "
"system in which the Court gets to pick the constitutional values that it "
"will respect, that is the system we have."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11673
msgid ""
"Justices Breyer and Stevens wrote very strong dissents. Stevens's opinion "
"was crafted internal to the law: He argued that the tradition of "
"intellectual property law should not support this unjustified extension of "
"terms. He based his argument on a parallel analysis that had governed in the "
"context of patents (so had we). But the rest of the Court discounted the "
"parallel&mdash;without explaining how the very same words in the Progress "
"Clause could come to mean totally different things depending upon whether "
"the words were about patents or copyrights.  The Court let Justice Stevens's "
"charge go unanswered."
msgstr ""

#.  PAGE BREAK 250 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11686
msgid ""
"Justice Breyer's opinion, perhaps the best opinion he has ever written, was "
"external to the Constitution. He argued that the term of copyrights has "
"become so long as to be effectively unlimited. We had said that under the "
"current term, a copyright gave an author 99.8 percent of the value of a "
"perpetual term. Breyer said we were wrong, that the actual number was "
"99.9997 percent of a perpetual term. Either way, the point was clear: If the "
"Constitution said a term had to be \"limited,\" and the existing term was so "
"long as to be effectively unlimited, then it was unconstitutional."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11697
msgid ""
"These two justices understood all the arguments we had made. But because "
"neither believed in the <citetitle>Lopez</citetitle> case, neither was "
"willing to push it as a reason to reject this extension. The case was "
"decided without anyone having addressed the argument that we had carried "
"from Judge Sentelle. It was <citetitle>Hamlet</citetitle> without the "
"Prince."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11704
msgid ""
"Defeat brings depression. They say it is a sign of health when depression "
"gives way to anger. My anger came quickly, but it didn't cure the "
"depression. This anger was of two sorts."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11709
msgid ""
"It was first anger with the five \"Conservatives.\" It would have been one "
"thing for them to have explained why the principle of "
"<citetitle>Lopez</citetitle> didn't apply in this case. That wouldn't have "
"been a very convincing argument, I don't believe, having read it made by "
"others, and having tried to make it myself. But it at least would have been "
"an act of integrity.  These justices in particular have repeatedly said that "
"the proper mode of interpreting the Constitution is \"originalism\"&mdash;to "
"first understand the framers' text, interpreted in their context, in light "
"of the structure of the Constitution. That method had produced "
"<citetitle>Lopez</citetitle> and many other \"originalist\" rulings. Where "
"was their \"originalism\" now?"
msgstr ""

#.  PAGE BREAK 251 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11722
msgid ""
"Here, they had joined an opinion that never once tried to explain what the "
"framers had meant by crafting the Progress Clause as they did; they joined "
"an opinion that never once tried to explain how the structure of that clause "
"would affect the interpretation of Congress's power. And they joined an "
"opinion that didn't even try to explain why this grant of power could be "
"unlimited, whereas the Commerce Clause would be limited. In short, they had "
"joined an opinion that did not apply to, and was inconsistent with, their "
"own method for interpreting the Constitution. This opinion may well have "
"yielded a result that they liked. It did not produce a reason that was "
"consistent with their own principles."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11737
msgid ""
"My anger with the Conservatives quickly yielded to anger with myself.  For I "
"had let a view of the law that I liked interfere with a view of the law as "
"it is."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11744
msgid ""
"Most lawyers, and most law professors, have little patience for idealism "
"about courts in general and this Supreme Court in particular.  Most have a "
"much more pragmatic view. When Don Ayer said that this case would be won "
"based on whether I could convince the Justices that the framers' values were "
"important, I fought the idea, because I didn't want to believe that that is "
"how this Court decides. I insisted on arguing this case as if it were a "
"simple application of a set of principles.  I had an argument that followed "
"in logic. I didn't need to waste my time showing it should also follow in "
"popularity."
msgstr ""

#.  PAGE BREAK 252 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11755
msgid ""
"As I read back over the transcript from that argument in October, I can see "
"a hundred places where the answers could have taken the conversation in "
"different directions, where the truth about the harm that this unchecked "
"power will cause could have been made clear to this Court. Justice Kennedy "
"in good faith wanted to be shown. I, idiotically, corrected his "
"question. Justice Souter in good faith wanted to be shown the First "
"Amendment harms. I, like a math teacher, reframed the question to make the "
"logical point. I had shown them how they could strike this law of Congress "
"if they wanted to. There were a hundred places where I could have helped "
"them want to, yet my stubbornness, my refusal to give in, stopped me. I have "
"stood before hundreds of audiences trying to persuade; I have used passion "
"in that effort to persuade; but I refused to stand before this audience and "
"try to persuade with the passion I had used elsewhere. It was not the basis "
"on which a court should decide the issue."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11775
msgid ""
"Would it have been different if I had argued it differently? Would it have "
"been different if Don Ayer had argued it? Or Charles Fried? Or Kathleen "
"Sullivan? <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11781
msgid ""
"My friends huddled around me to insist it would not. The Court was not "
"ready, my friends insisted. This was a loss that was destined. It would take "
"a great deal more to show our society why our framers were right. And when "
"we do that, we will be able to show that Court."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11787
msgid ""
"Maybe, but I doubt it. These Justices have no financial interest in doing "
"anything except the right thing. They are not lobbied. They have little "
"reason to resist doing right. I can't help but think that if I had stepped "
"down from this pretty picture of dispassionate justice, I could have "
"persuaded."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11794
msgid ""
"And even if I couldn't, then that doesn't excuse what happened in "
"January. For at the start of this case, one of America's leading "
"intellectual property professors stated publicly that my bringing this case "
"was a mistake. \"The Court is not ready,\" Peter Jaszi said; this issue "
"should not be raised until it is.  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 253 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11802
msgid ""
"After the argument and after the decision, Peter said to me, and publicly, "
"that he was wrong. But if indeed that Court could not have been persuaded, "
"then that is all the evidence that's needed to know that here again Peter "
"was right. Either I was not ready to argue this case in a way that would do "
"some good or they were not ready to hear this case in a way that would do "
"some good. Either way, the decision to bring this case&mdash;a decision I "
"had made four years before&mdash;was wrong.  While the reaction to the Sonny "
"Bono Act itself was almost unanimously negative, the reaction to the Court's "
"decision was mixed.  No one, at least in the press, tried to say that "
"extending the term of copyright was a good idea. We had won that battle over "
"ideas. Where the decision was praised, it was praised by papers that had "
"been skeptical of the Court's activism in other cases. Deference was a good "
"thing, even if it left standing a silly law. But where the decision was "
"attacked, it was attacked because it left standing a silly and harmful "
"law. <citetitle>The New York Times</citetitle> wrote in its editorial,"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:11823
msgid ""
"In effect, the Supreme Court's decision makes it likely that we are seeing "
"the beginning of the end of public domain and the birth of copyright "
"perpetuity. The public domain has been a grand experiment, one that should "
"not be allowed to die. The ability to draw freely on the entire creative "
"output of humanity is one of the reasons we live in a time of such fruitful "
"creative ferment."
msgstr ""

#. type: Content of: <book><part><chapter><figure><indexterm><primary>
#: freeculture.xml:11837 freeculture.xml:11842
msgid "Bolling, Ruben"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11832
msgid ""
"The best responses were in the cartoons. There was a gaggle of hilarious "
"images&mdash;of Mickey in jail and the like. The best, from my view of the "
"case, was Ruben Bolling's, reproduced on the next page (<xref "
"linkend=\"fig-18\"/>). The \"powerful and wealthy\" line is a bit "
"unfair. But the punch in the face felt exactly like that.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><figure><title>
#: freeculture.xml:11840
msgid "Tom the Dancing Bug cartoon"
msgstr ""

#. type: Content of: <book><part><chapter><figure>
#: freeculture.xml:11841
msgid ""
"<graphic fileref=\"images/18.png\"></graphic> <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11845
msgid ""
"The image that will always stick in my head is that evoked by the quote from "
"<citetitle>The New York Times</citetitle>. That \"grand experiment\" we call "
"the \"public domain\" is over? When I can make light of it, I think, "
"\"Honey, I shrunk the Constitution.\" But I can rarely make light of it. We "
"had in our Constitution a commitment to free culture. In the case that I "
"fathered, the Supreme Court effectively renounced that commitment. A better "
"lawyer would have made them see differently."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:11856
msgid "CHAPTER FOURTEEN: Eldred II"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11858
msgid ""
"The day <citetitle>Eldred</citetitle> was decided, fate would have it that I "
"was to travel to Washington, D.C. (The day the rehearing petition in "
"<citetitle>Eldred</citetitle> was denied&mdash;meaning the case was really "
"finally over&mdash;fate would have it that I was giving a speech to "
"technologists at Disney World.)  This was a particularly long flight to my "
"least favorite city. The drive into the city from Dulles was delayed because "
"of traffic, so I opened up my computer and wrote an op-ed piece."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11868
msgid ""
"It was an act of contrition. During the whole of the flight from San "
"Francisco to Washington, I had heard over and over again in my head the same "
"advice from Don Ayer: You need to make them see why it is important. And "
"alternating with that command was the question of Justice Kennedy: \"For all "
"these years the act has impeded progress in science and the useful arts. I "
"just don't see any empirical evidence for that.\" And so, having failed in "
"the argument of constitutional principle, finally, I turned to an argument "
"of politics."
msgstr ""

#.  PAGE BREAK 256 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11878
msgid ""
"<citetitle>The New York Times</citetitle> published the piece. In it, I "
"proposed a simple fix: Fifty years after a work has been published, the "
"copyright owner would be required to register the work and pay a small "
"fee. If he paid the fee, he got the benefit of the full term of "
"copyright. If he did not, the work passed into the public domain."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11886
msgid ""
"We called this the Eldred Act, but that was just to give it a name.  Eric "
"Eldred was kind enough to let his name be used once again, but as he said "
"early on, it won't get passed unless it has another name."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11891
msgid ""
"Or another two names. For depending upon your perspective, this is either "
"the \"Public Domain Enhancement Act\" or the \"Copyright Term Deregulation "
"Act.\" Either way, the essence of the idea is clear and obvious: Remove "
"copyright where it is doing nothing except blocking access and the spread of "
"knowledge. Leave it for as long as Congress allows for those works where its "
"worth is at least $1. But for everything else, let the content go."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11899 freeculture.xml:12099
msgid "Forbes, Steve"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11901
msgid ""
"The reaction to this idea was amazingly strong. Steve Forbes endorsed it in "
"an editorial. I received an avalanche of e-mail and letters expressing "
"support. When you focus the issue on lost creativity, people can see the "
"copyright system makes no sense. As a good Republican might say, here "
"government regulation is simply getting in the way of innovation and "
"creativity. And as a good Democrat might say, here the government is "
"blocking access and the spread of knowledge for no good reason. Indeed, "
"there is no real difference between Democrats and Republicans on this "
"issue. Anyone can recognize the stupid harm of the present system."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11913
msgid ""
"Indeed, many recognized the obvious benefit of the registration "
"requirement.  For one of the hardest things about the current system for "
"people who want to license content is that there is no obvious place to look "
"for the current copyright owners. Since registration is not required, since "
"marking content is not required, since no formality at all is required, it "
"is often impossibly hard to locate copyright owners to ask permission to use "
"or license their work. This system would lower these costs, by establishing "
"at least one registry where copyright owners could be identified."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11923
msgid "Berlin Act (1908)"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11924 freeculture.xml:11964
msgid "Berne Convention (1908)"
msgstr ""

#.  f1. 
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:11932
msgid ""
"Until the 1908 Berlin Act of the Berne Convention, national copyright "
"legislation sometimes made protection depend upon compliance with "
"formalities such as registration, deposit, and affixation of notice of the "
"author's claim of copyright. However, starting with the 1908 act, every text "
"of the Convention has provided that \"the enjoyment and the exercise\" of "
"rights guaranteed by the Convention \"shall not be subject to any "
"formality.\" The prohibition against formalities is presently embodied in "
"Article 5(2) of the Paris Text of the Berne Convention. Many countries "
"continue to impose some form of deposit or registration requirement, albeit "
"not as a condition of copyright. French law, for example, requires the "
"deposit of copies of works in national repositories, principally the "
"National Museum.  Copies of books published in the United Kingdom must be "
"deposited in the British Library. The German Copyright Act provides for a "
"Registrar of Authors where the author's true name can be filed in the case "
"of anonymous or pseudonymous works. Paul Goldstein, <citetitle>International "
"Intellectual Property Law, Cases and Materials</citetitle> (New York: "
"Foundation Press, 2001), 153&ndash;54."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11927
msgid ""
"As I described in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"property-i\"/>, formalities in copyright law were removed in 1976, "
"when Congress followed the Europeans by abandoning any formal requirement "
"before a copyright is granted.<placeholder type=\"footnote\" id=\"0\"/> The "
"Europeans are said to view copyright as a \"natural right.\" Natural rights "
"don't need forms to exist. Traditions, like the Anglo-American tradition "
"that required copyright owners to follow form if their rights were to be "
"protected, did not, the Europeans thought, properly respect the dignity of "
"the author. My right as a creator turns on my creativity, not upon the "
"special favor of the government."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11958
msgid ""
"That's great rhetoric. It sounds wonderfully romantic. But it is absurd "
"copyright policy. It is absurd especially for authors, because a world "
"without formalities harms the creator. The ability to spread \"Walt Disney "
"creativity\" is destroyed when there is no simple way to know what's "
"protected and what's not."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11966
msgid ""
"The fight against formalities achieved its first real victory in Berlin in "
"1908. International copyright lawyers amended the Berne Convention in 1908, "
"to require copyright terms of life plus fifty years, as well as the "
"abolition of copyright formalities. The formalities were hated because the "
"stories of inadvertent loss were increasingly common. It was as if a Charles "
"Dickens character ran all copyright offices, and the failure to dot an "
"<citetitle>i</citetitle> or cross a <citetitle>t</citetitle> resulted in the "
"loss of widows' only income."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11976
msgid ""
"These complaints were real and sensible. And the strictness of the "
"formalities, especially in the United States, was absurd. The law should "
"always have ways of forgiving innocent mistakes. There is no reason "
"copyright law couldn't, as well. Rather than abandoning formalities totally, "
"the response in Berlin should have been to embrace a more equitable system "
"of registration."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11984
msgid ""
"Even that would have been resisted, however, because registration in the "
"nineteenth and twentieth centuries was still expensive. It was also a "
"hassle. The abolishment of formalities promised not only to save the "
"starving widows, but also to lighten an unnecessary regulatory burden "
"imposed upon creators."
msgstr ""

#.  PAGE BREAK 258 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11992
msgid ""
"In addition to the practical complaint of authors in 1908, there was a moral "
"claim as well. There was no reason that creative property should be a "
"second-class form of property. If a carpenter builds a table, his rights "
"over the table don't depend upon filing a form with the government.  He has "
"a property right over the table \"naturally,\" and he can assert that right "
"against anyone who would steal the table, whether or not he has informed the "
"government of his ownership of the table."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12004
msgid ""
"This argument is correct, but its implications are misleading. For the "
"argument in favor of formalities does not depend upon creative property "
"being second-class property. The argument in favor of formalities turns upon "
"the special problems that creative property presents.  The law of "
"formalities responds to the special physics of creative property, to assure "
"that it can be efficiently and fairly spread."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12013
msgid ""
"No one thinks, for example, that land is second-class property just because "
"you have to register a deed with a court if your sale of land is to be "
"effective. And few would think a car is second-class property just because "
"you must register the car with the state and tag it with a license.  In both "
"of those cases, everyone sees that there is an important reason to secure "
"registration&mdash;both because it makes the markets more efficient and "
"because it better secures the rights of the owner. Without a registration "
"system for land, landowners would perpetually have to guard their "
"property. With registration, they can simply point the police to a "
"deed. Without a registration system for cars, auto theft would be much "
"easier. With a registration system, the thief has a high burden to sell a "
"stolen car. A slight burden is placed on the property owner, but those "
"burdens produce a much better system of protection for property generally."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12029
msgid ""
"It is similarly special physics that makes formalities important in "
"copyright law. Unlike a carpenter's table, there's nothing in nature that "
"makes it relatively obvious who might own a particular bit of creative "
"property. A recording of Lyle Lovett's latest album can exist in a billion "
"places without anything necessarily linking it back to a particular "
"owner. And like a car, there's no way to buy and sell creative property with "
"confidence unless there is some simple way to authenticate who is the author "
"and what rights he has. Simple transactions are destroyed in a world without "
"formalities. Complex, expensive, <emphasis>lawyer</emphasis> transactions "
"take their place.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12044
msgid ""
"This was the understanding of the problem with the Sonny Bono Act that we "
"tried to demonstrate to the Court. This was the part it didn't \"get.\" "
"Because we live in a system without formalities, there is no way easily to "
"build upon or use culture from our past. If copyright terms were, as Justice "
"Story said they would be, \"short,\" then this wouldn't matter much. For "
"fourteen years, under the framers' system, a work would be presumptively "
"controlled. After fourteen years, it would be presumptively uncontrolled."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12054
msgid ""
"But now that copyrights can be just about a century long, the inability to "
"know what is protected and what is not protected becomes a huge and obvious "
"burden on the creative process. If the only way a library can offer an "
"Internet exhibit about the New Deal is to hire a lawyer to clear the rights "
"to every image and sound, then the copyright system is burdening creativity "
"in a way that has never been seen before <emphasis>because there are no "
"formalities</emphasis>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12063
msgid ""
"The Eldred Act was designed to respond to exactly this problem. If it is "
"worth $1 to you, then register your work and you can get the longer "
"term. Others will know how to contact you and, therefore, how to get your "
"permission if they want to use your work. And you will get the benefit of an "
"extended copyright term."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12070
msgid ""
"If it isn't worth it to you to register to get the benefit of an extended "
"term, then it shouldn't be worth it for the government to defend your "
"monopoly over that work either. The work should pass into the public domain "
"where anyone can copy it, or build archives with it, or create a movie based "
"on it. It should become free if it is not worth $1 to you."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12077
msgid ""
"Some worry about the burden on authors. Won't the burden of registering the "
"work mean that the $1 is really misleading? Isn't the hassle worth more than "
"$1? Isn't that the real problem with registration?"
msgstr ""

#.  PAGE BREAK 260 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12083
msgid ""
"It is. The hassle is terrible. The system that exists now is awful. I "
"completely agree that the Copyright Office has done a terrible job (no doubt "
"because they are terribly funded) in enabling simple and cheap "
"registrations. Any real solution to the problem of formalities must address "
"the real problem of <emphasis>governments</emphasis> standing at the core of "
"any system of formalities. In this book, I offer such a solution. That "
"solution essentially remakes the Copyright Office. For now, assume it was "
"Amazon that ran the registration system. Assume it was one-click "
"registration.  The Eldred Act would propose a simple, one-click registration "
"fifty years after a work was published. Based upon historical data, that "
"system would move up to 98 percent of commercial work, commercial work that "
"no longer had a commercial life, into the public domain within fifty "
"years. What do you think?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12101
msgid ""
"When Steve Forbes endorsed the idea, some in Washington began to pay "
"attention. Many people contacted me pointing to representatives who might be "
"willing to introduce the Eldred Act. And I had a few who directly suggested "
"that they might be willing to take the first step."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:12114
msgid "Lofgren, Zoe"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12107
msgid ""
"One representative, Zoe Lofgren of California, went so far as to get the "
"bill drafted. The draft solved any problem with international law. It "
"imposed the simplest requirement upon copyright owners possible. In May "
"2003, it looked as if the bill would be introduced. On May 16, I posted on "
"the Eldred Act blog, \"we are close.\" There was a general reaction in the "
"blog community that something good might happen here.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12117
msgid ""
"But at this stage, the lobbyists began to intervene. Jack Valenti and the "
"MPAA general counsel came to the congresswoman's office to give the view of "
"the MPAA. Aided by his lawyer, as Valenti told me, Valenti informed the "
"congresswoman that the MPAA would oppose the Eldred Act. The reasons are "
"embarrassingly thin. More importantly, their thinness shows something clear "
"about what this debate is really about."
msgstr ""

#.  PAGE BREAK 261 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12125
msgid ""
"The MPAA argued first that Congress had \"firmly rejected the central "
"concept in the proposed bill\"&mdash;that copyrights be renewed. That was "
"true, but irrelevant, as Congress's \"firm rejection\" had occurred long "
"before the Internet made subsequent uses much more likely.  Second, they "
"argued that the proposal would harm poor copyright owners&mdash;apparently "
"those who could not afford the $1 fee. Third, they argued that Congress had "
"determined that extending a copyright term would encourage restoration "
"work. Maybe in the case of the small percentage of work covered by copyright "
"law that is still commercially valuable, but again this was irrelevant, as "
"the proposal would not cut off the extended term unless the $1 fee was not "
"paid. Fourth, the MPAA argued that the bill would impose \"enormous\" costs, "
"since a registration system is not free. True enough, but those costs are "
"certainly less than the costs of clearing the rights for a copyright whose "
"owner is not known. Fifth, they worried about the risks if the copyright to "
"a story underlying a film were to pass into the public domain. But what risk "
"is that? If it is in the public domain, then the film is a valid derivative "
"use."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12146
msgid ""
"Finally, the MPAA argued that existing law enabled copyright owners to do "
"this if they wanted. But the whole point is that there are thousands of "
"copyright owners who don't even know they have a copyright to give. Whether "
"they are free to give away their copyright or not&mdash;a controversial "
"claim in any case&mdash;unless they know about a copyright, they're not "
"likely to."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12154
msgid ""
"At the beginning of this book, I told two stories about the law reacting to "
"changes in technology. In the one, common sense prevailed.  In the other, "
"common sense was delayed. The difference between the two stories was the "
"power of the opposition&mdash;the power of the side that fought to defend "
"the status quo. In both cases, a new technology threatened old "
"interests. But in only one case did those interest's have the power to "
"protect themselves against this new competitive threat."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12164
msgid ""
"I used these two cases as a way to frame the war that this book has been "
"about. For here, too, a new technology is forcing the law to react.  And "
"here, too, we should ask, is the law following or resisting common sense? If "
"common sense supports the law, what explains this common sense?"
msgstr ""

#.  PAGE BREAK 262 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12173
msgid ""
"When the issue is piracy, it is right for the law to back the copyright "
"owners. The commercial piracy that I described is wrong and harmful, and the "
"law should work to eliminate it. When the issue is p2p sharing, it is easy "
"to understand why the law backs the owners still: Much of this sharing is "
"wrong, even if much is harmless. When the issue is copyright terms for the "
"Mickey Mouses of the world, it is possible still to understand why the law "
"favors Hollywood: Most people don't recognize the reasons for limiting "
"copyright terms; it is thus still possible to see good faith within the "
"resistance."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:12192
msgid "Kelly, Kevin"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12184
msgid ""
"But when the copyright owners oppose a proposal such as the Eldred Act, "
"then, finally, there is an example that lays bare the naked selfinterest "
"driving this war. This act would free an extraordinary range of content that "
"is otherwise unused. It wouldn't interfere with any copyright owner's desire "
"to exercise continued control over his content. It would simply liberate "
"what Kevin Kelly calls the \"Dark Content\" that fills archives around the "
"world. So when the warriors oppose a change like this, we should ask one "
"simple question: <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12195
msgid "What does this industry really want?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12198
msgid ""
"With very little effort, the warriors could protect their content. So the "
"effort to block something like the Eldred Act is not really about protecting "
"<emphasis>their</emphasis> content. The effort to block the Eldred Act is an "
"effort to assure that nothing more passes into the public domain. It is "
"another step to assure that the public domain will never compete, that there "
"will be no use of content that is not commercially controlled, and that "
"there will be no commercial use of content that doesn't require "
"<emphasis>their</emphasis> permission first."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12209
msgid ""
"The opposition to the Eldred Act reveals how extreme the other side is. The "
"most powerful and sexy and well loved of lobbies really has as its aim not "
"the protection of \"property\" but the rejection of a tradition.  Their aim "
"is not simply to protect what is theirs. <emphasis>Their aim is to assure "
"that all there is is what is theirs</emphasis>."
msgstr ""

#.  PAGE BREAK 263 
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12217
msgid ""
"It is not hard to understand why the warriors take this view. It is not hard "
"to see why it would benefit them if the competition of the public domain "
"tied to the Internet could somehow be quashed. Just as RCA feared the "
"competition of FM, they fear the competition of a public domain connected to "
"a public that now has the means to create with it and to share its own "
"creation."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12229
msgid ""
"What is hard to understand is why the public takes this view. It is as if "
"the law made airplanes trespassers. The MPAA stands with the Causbys and "
"demands that their remote and useless property rights be respected, so that "
"these remote and forgotten copyright holders might block the progress of "
"others."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12236
msgid ""
"All this seems to follow easily from this untroubled acceptance of the "
"\"property\" in intellectual property. Common sense supports it, and so long "
"as it does, the assaults will rain down upon the technologies of the "
"Internet. The consequence will be an increasing \"permission society.\" The "
"past can be cultivated only if you can identify the owner and gain "
"permission to build upon his work. The future will be controlled by this "
"dead (and often unfindable) hand of the past."
msgstr ""

#. type: Content of: <book><chapter><title>
#: freeculture.xml:12248
msgid "CONCLUSION"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12250
msgid ""
"There are more than 35 million people with the AIDS virus "
"worldwide. Twenty-five million of them live in sub-Saharan Africa.  "
"Seventeen million have already died. Seventeen million Africans is "
"proportional percentage-wise to seven million Americans. More importantly, "
"it is seventeen million Africans."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12257
msgid ""
"There is no cure for AIDS, but there are drugs to slow its progression.  "
"These antiretroviral therapies are still experimental, but they have already "
"had a dramatic effect. In the United States, AIDS patients who regularly "
"take a cocktail of these drugs increase their life expectancy by ten to "
"twenty years. For some, the drugs make the disease almost invisible."
msgstr ""

#.  f1. 
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:12272
msgid ""
"Commission on Intellectual Property Rights, \"Final Report: Integrating "
"Intellectual Property Rights and Development Policy\" (London, 2002), "
"available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#55</ulink>. According to a World Health Organization press release issued 9 "
"July 2002, only 230,000 of the 6 million who need drugs in the developing "
"world receive them&mdash;and half of them are in Brazil."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12265
msgid ""
"These drugs are expensive. When they were first introduced in the United "
"States, they cost between $10,000 and $15,000 per person per year. Today, "
"some cost $25,000 per year. At these prices, of course, no African nation "
"can afford the drugs for the vast majority of its population: $15,000 is "
"thirty times the per capita gross national product of Zimbabwe. At these "
"prices, the drugs are totally unavailable.<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 265 
#. type: Content of: <book><chapter><para>
#: freeculture.xml:12283
msgid ""
"These prices are not high because the ingredients of the drugs are "
"expensive. These prices are high because the drugs are protected by "
"patents. The drug companies that produced these life-saving mixes enjoy at "
"least a twenty-year monopoly for their inventions. They use that monopoly "
"power to extract the most they can from the market. That power is in turn "
"used to keep the prices high."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12291
msgid ""
"There are many who are skeptical of patents, especially drug patents. I am "
"not. Indeed, of all the areas of research that might be supported by "
"patents, drug research is, in my view, the clearest case where patents are "
"needed. The patent gives the drug company some assurance that if it is "
"successful in inventing a new drug to treat a disease, it will be able to "
"earn back its investment and more. This is socially an extremely valuable "
"incentive. I am the last person who would argue that the law should abolish "
"it, at least without other changes."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12302
msgid ""
"But it is one thing to support patents, even drug patents. It is another "
"thing to determine how best to deal with a crisis. And as African leaders "
"began to recognize the devastation that AIDS was bringing, they started "
"looking for ways to import HIV treatments at costs significantly below the "
"market price."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:12320 freeculture.xml:12755
msgid "Braithwaite, John"
msgstr ""

#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:12318
msgid ""
"See Peter Drahos with John Braithwaite, <citetitle>Information Feudalism: "
"Who Owns the Knowledge Economy?</citetitle> (New York: The New Press, 2003), "
"37.  <placeholder type=\"indexterm\" id=\"0\"/> <placeholder "
"type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12309
msgid ""
"In 1997, South Africa tried one tack. It passed a law to allow the "
"importation of patented medicines that had been produced or sold in another "
"nation's market with the consent of the patent owner. For example, if the "
"drug was sold in India, it could be imported into Africa from India. This is "
"called \"parallel importation,\" and it is generally permitted under "
"international trade law and is specifically permitted within the European "
"Union.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  f3. 
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:12331
msgid ""
"International Intellectual Property Institute (IIPI), <citetitle>Patent "
"Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a "
"Report Prepared for the World Intellectual Property Organization</citetitle> "
"(Washington, D.C., 2000), 14, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #56</ulink>. For a firsthand "
"account of the struggle over South Africa, see Hearing Before the "
"Subcommittee on Criminal Justice, Drug Policy, and Human Resources, House "
"Committee on Government Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 "
"July 1999), 150&ndash;57 (statement of James Love)."
msgstr ""

#.  f4. 
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:12358
msgid ""
"International Intellectual Property Institute (IIPI), <citetitle>Patent "
"Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a "
"Report Prepared for the World Intellectual Property Organization</citetitle> "
"(Washington, D.C., 2000), 15."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12325
msgid ""
"However, the United States government opposed the bill. Indeed, more than "
"opposed. As the International Intellectual Property Association "
"characterized it, \"The U.S. government pressured South Africa &hellip; not "
"to permit compulsory licensing or parallel imports.\"<placeholder "
"type=\"footnote\" id=\"0\"/> Through the Office of the United States Trade "
"Representative, the government asked South Africa to change the "
"law&mdash;and to add pressure to that request, in 1998, the USTR listed "
"South Africa for possible trade sanctions.  That same year, more than forty "
"pharmaceutical companies began proceedings in the South African courts to "
"challenge the government's actions. The United States was then joined by "
"other governments from the EU. Their claim, and the claim of the "
"pharmaceutical companies, was that South Africa was violating its "
"obligations under international law by discriminating against a particular "
"kind of patent&mdash; pharmaceutical patents. The demand of these "
"governments, with the United States in the lead, was that South Africa "
"respect these patents as it respects any other patent, regardless of any "
"effect on the treatment of AIDS within South Africa.<placeholder "
"type=\"footnote\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12364
msgid ""
"We should place the intervention by the United States in context.  No doubt "
"patents are not the most important reason that Africans don't have access to "
"drugs. Poverty and the total absence of an effective health care "
"infrastructure matter more. But whether patents are the most important "
"reason or not, the price of drugs has an effect on their demand, and patents "
"affect price. And so, whether massive or marginal, there was an effect from "
"our government's intervention to stop the flow of medications into Africa."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12374
msgid ""
"By stopping the flow of HIV treatment into Africa, the United States "
"government was not saving drugs for United States citizens.  This is not "
"like wheat (if they eat it, we can't); instead, the flow that the United "
"States intervened to stop was, in effect, a flow of knowledge: information "
"about how to take chemicals that exist within Africa, and turn those "
"chemicals into drugs that would save 15 to 30 million lives."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12382
msgid ""
"Nor was the intervention by the United States going to protect the profits "
"of United States drug companies&mdash;at least, not substantially. It was "
"not as if these countries were in the position to buy the drugs for the "
"prices the drug companies were charging. Again, the Africans are wildly too "
"poor to afford these drugs at the offered prices. Stopping the parallel "
"import of these drugs would not substantially increase the sales by "
"U.S. companies."
msgstr ""

#.  f5. 
#.  PAGE BREAK 333 
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:12397
msgid ""
"See Sabin Russell, \"New Crusade to Lower AIDS Drug Costs: Africa's Needs at "
"Odds with Firms' Profit Motive,\" <citetitle>San Francisco "
"Chronicle</citetitle>, 24 May 1999, A1, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #57</ulink> (\"compulsory "
"licenses and gray markets pose a threat to the entire system of intellectual "
"property protection\"); Robert Weissman, \"AIDS and Developing Countries: "
"Democratizing Access to Essential Medicines,\" <citetitle>Foreign Policy in "
"Focus</citetitle> 4:23 (August 1999), available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #58</ulink> (describing "
"U.S. policy); John A. Harrelson, \"TRIPS, Pharmaceutical Patents, and the "
"HIV/AIDS Crisis: Finding the Proper Balance Between Intellectual Property "
"Rights and Compassion, a Synopsis,\" <citetitle>Widener Law Symposium "
"Journal</citetitle> (Spring 2001): 175."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12391
msgid ""
"Instead, the argument in favor of restricting this flow of information, "
"which was needed to save the lives of millions, was an argument about the "
"sanctity of property.<placeholder type=\"footnote\" id=\"0\"/> It was "
"because \"intellectual property\" would be violated that these drugs should "
"not flow into Africa. It was a principle about the importance of "
"\"intellectual property\" that led these government actors to intervene "
"against the South African response to AIDS."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12418
msgid ""
"Now just step back for a moment. There will be a time thirty years from now "
"when our children look back at us and ask, how could we have let this "
"happen? How could we allow a policy to be pursued whose direct cost would be "
"to speed the death of 15 to 30 million Africans, and whose only real benefit "
"would be to uphold the \"sanctity\" of an idea? What possible justification "
"could there ever be for a policy that results in so many deaths? What "
"exactly is the insanity that would allow so many to die for such an "
"abstraction?"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12428
msgid ""
"Some blame the drug companies. I don't. They are corporations.  Their "
"managers are ordered by law to make money for the corporation.  They push a "
"certain patent policy not because of ideals, but because it is the policy "
"that makes them the most money. And it only makes them the most money "
"because of a certain corruption within our political system&mdash; a "
"corruption the drug companies are certainly not responsible for."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12436
msgid ""
"The corruption is our own politicians' failure of integrity. For the drug "
"companies would love&mdash;they say, and I believe them&mdash;to sell their "
"drugs as cheaply as they can to countries in Africa and elsewhere.  There "
"are issues they'd have to resolve to make sure the drugs didn't get back "
"into the United States, but those are mere problems of technology.  They "
"could be overcome."
msgstr ""

#.  PAGE BREAK 268 
#. type: Content of: <book><chapter><para>
#: freeculture.xml:12444
msgid ""
"A different problem, however, could not be overcome. This is the fear of the "
"grandstanding politician who would call the presidents of the drug companies "
"before a Senate or House hearing, and ask, \"How is it you can sell this HIV "
"drug in Africa for only $1 a pill, but the same drug would cost an American "
"$1,500?\" Because there is no \"sound bite\" answer to that question, its "
"effect would be to induce regulation of prices in America. The drug "
"companies thus avoid this spiral by avoiding the first step. They reinforce "
"the idea that property should be sacred. They adopt a rational strategy in "
"an irrational context, with the unintended consequence that perhaps millions "
"die. And that rational strategy thus becomes framed in terms of this "
"ideal&mdash;the sanctity of an idea called \"intellectual property.\""
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12459
msgid ""
"So when the common sense of your child confronts you, what will you say? "
"When the common sense of a generation finally revolts against what we have "
"done, how will we justify what we have done? What is the argument?"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12465
msgid ""
"A sensible patent policy could endorse and strongly support the patent "
"system without having to reach everyone everywhere in exactly the same "
"way. Just as a sensible copyright policy could endorse and strongly support "
"a copyright system without having to regulate the spread of culture "
"perfectly and forever, a sensible patent policy could endorse and strongly "
"support a patent system without having to block the spread of drugs to a "
"country not rich enough to afford market prices in any case. A sensible "
"policy, in other words, could be a balanced policy. For most of our history, "
"both copyright and patent policies were balanced in just this sense."
msgstr ""

#.  PAGE BREAK 269 
#. type: Content of: <book><chapter><para>
#: freeculture.xml:12477
msgid ""
"But we as a culture have lost this sense of balance. We have lost the "
"critical eye that helps us see the difference between truth and extremism.  "
"A certain property fundamentalism, having no connection to our tradition, "
"now reigns in this culture&mdash;bizarrely, and with consequences more grave "
"to the spread of ideas and culture than almost any other single policy "
"decision that we as a democracy will make.  A simple idea blinds us, and "
"under the cover of darkness, much happens that most of us would reject if "
"any of us looked. So uncritically do we accept the idea of property in ideas "
"that we don't even notice how monstrous it is to deny ideas to a people who "
"are dying without them. So uncritically do we accept the idea of property in "
"culture that we don't even question when the control of that property "
"removes our ability, as a people, to develop our culture "
"democratically. Blindness becomes our common sense. And the challenge for "
"anyone who would reclaim the right to cultivate our culture is to find a way "
"to make this common sense open its eyes."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12497
msgid ""
"So far, common sense sleeps. There is no revolt. Common sense does not yet "
"see what there could be to revolt about. The extremism that now dominates "
"this debate fits with ideas that seem natural, and that fit is reinforced by "
"the RCAs of our day. They wage a frantic war to fight \"piracy,\" and "
"devastate a culture for creativity. They defend the idea of \"creative "
"property,\" while transforming real creators into modern-day "
"sharecroppers. They are insulted by the idea that rights should be balanced, "
"even though each of the major players in this content war was itself a "
"beneficiary of a more balanced ideal. The hypocrisy reeks. Yet in a city "
"like Washington, hypocrisy is not even noticed. Powerful lobbies, complex "
"issues, and MTV attention spans produce the \"perfect storm\" for free "
"culture."
msgstr ""

#.  f6. 
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:12514
msgid ""
"Jonathan Krim, \"The Quiet War over Open-Source,\" <citetitle>Washington "
"Post</citetitle>, August 2003, E1, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #59</ulink>; William New, "
"\"Global Group's Shift on `Open Source' Meeting Spurs Stir,\" "
"<citetitle>National Journal's Technology Daily</citetitle>, 19 August 2003, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #60</ulink>; "
"William New, \"U.S. Official Opposes `Open Source' Talks at WIPO,\" "
"<citetitle>National Journal's Technology Daily</citetitle>, 19 August 2003, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #61</ulink>."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:12542 freeculture.xml:13215
msgid "academic journals"
msgstr ""

#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
#: freeculture.xml:12543 freeculture.xml:12633 freeculture.xml:13141
msgid "IBM"
msgstr ""

#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
#: freeculture.xml:12544 freeculture.xml:13279
msgid "PLoS (Public Library of Science)"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12511
msgid ""
"In August 2003, a fight broke out in the United States about a decision by "
"the World Intellectual Property Organization to cancel a "
"meeting.<placeholder type=\"footnote\" id=\"0\"/> At the request of a wide "
"range of interests, WIPO had decided to hold a meeting to discuss \"open and "
"collaborative projects to create public goods.\" These are projects that "
"have been successful in producing public goods without relying exclusively "
"upon a proprietary use of intellectual property. Examples include the "
"Internet and the World Wide Web, both of which were developed on the basis "
"of protocols in the public domain. It included an emerging trend to support "
"open academic journals, including the Public Library of Science project that "
"I describe in the Afterword. It included a project to develop single "
"nucleotide polymorphisms (SNPs), which are thought to have great "
"significance in biomedical research. (That nonprofit project comprised a "
"consortium of the Wellcome Trust and pharmaceutical and technological "
"companies, including Amersham Biosciences, AstraZeneca, Aventis, Bayer, "
"Bristol-Myers Squibb, Hoffmann-La Roche, Glaxo-SmithKline, IBM, Motorola, "
"Novartis, Pfizer, and Searle.) It included the Global Positioning System, "
"which Ronald Reagan set free in the early 1980s. And it included \"open "
"source and free software.\" <placeholder type=\"indexterm\" id=\"1\"/> "
"<placeholder type=\"indexterm\" id=\"2\"/> <placeholder type=\"indexterm\" "
"id=\"3\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12547
msgid ""
"The aim of the meeting was to consider this wide range of projects from one "
"common perspective: that none of these projects relied upon intellectual "
"property extremism. Instead, in all of them, intellectual property was "
"balanced by agreements to keep access open or to impose limitations on the "
"way in which proprietary claims might be used."
msgstr ""

#.  f7. 
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:12555
msgid ""
"I should disclose that I was one of the people who asked WIPO for the "
"meeting."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12554
msgid ""
"From the perspective of this book, then, the conference was "
"ideal.<placeholder type=\"footnote\" id=\"0\"/> The projects within its "
"scope included both commercial and noncommercial work. They primarily "
"involved science, but from many perspectives.  And WIPO was an ideal venue "
"for this discussion, since WIPO is the preeminent international body dealing "
"with intellectual property issues."
msgstr ""

#.  PAGE BREAK 271 
#. type: Content of: <book><chapter><para>
#: freeculture.xml:12565
msgid ""
"Indeed, I was once publicly scolded for not recognizing this fact about "
"WIPO. In February 2003, I delivered a keynote address to a preparatory "
"conference for the World Summit on the Information Society (WSIS). At a "
"press conference before the address, I was asked what I would say. I "
"responded that I would be talking a little about the importance of balance "
"in intellectual property for the development of an information society. The "
"moderator for the event then promptly interrupted to inform me and the "
"assembled reporters that no question about intellectual property would be "
"discussed by WSIS, since those questions were the exclusive domain of "
"WIPO. In the talk that I had prepared, I had actually made the issue of "
"intellectual property relatively minor. But after this astonishing "
"statement, I made intellectual property the sole focus of my talk. There was "
"no way to talk about an \"Information Society\" unless one also talked about "
"the range of information and culture that would be free. My talk did not "
"make my immoderate moderator very happy. And she was no doubt correct that "
"the scope of intellectual property protections was ordinarily the stuff of "
"WIPO. But in my view, there couldn't be too much of a conversation about how "
"much intellectual property is needed, since in my view, the very idea of "
"balance in intellectual property had been lost."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12589
msgid ""
"So whether or not WSIS can discuss balance in intellectual property, I had "
"thought it was taken for granted that WIPO could and should. And thus the "
"meeting about \"open and collaborative projects to create public goods\" "
"seemed perfectly appropriate within the WIPO agenda."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12595
msgid ""
"But there is one project within that list that is highly controversial, at "
"least among lobbyists. That project is \"open source and free software.\" "
"Microsoft in particular is wary of discussion of the subject. From its "
"perspective, a conference to discuss open source and free software would be "
"like a conference to discuss Apple's operating system. Both open source and "
"free software compete with Microsoft's software. And internationally, many "
"governments have begun to explore requirements that they use open source or "
"free software, rather than \"proprietary software,\" for their own internal "
"uses."
msgstr ""

#.  f8. 
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:12617
msgid ""
"Microsoft's position about free and open source software is more "
"sophisticated.  As it has repeatedly asserted, it has no problem with \"open "
"source\" software or software in the public domain. Microsoft's principal "
"opposition is to \"free software\" licensed under a \"copyleft\" license, "
"meaning a license that requires the licensee to adopt the same terms on any "
"derivative work. See Bradford L. Smith, \"The Future of Software: Enabling "
"the Marketplace to Decide,\" <citetitle>Government Policy Toward Open Source "
"Software</citetitle> (Washington, D.C.: AEI-Brookings Joint Center for "
"Regulatory Studies, American Enterprise Institute for Public Policy "
"Research, 2002), 69, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #62</ulink>. See also Craig "
"Mundie, Microsoft senior vice president, <citetitle>The Commercial Software "
"Model</citetitle>, discussion at New York University Stern School of "
"Business (3 May 2001), available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #63</ulink>."
msgstr ""

#. type: Content of: <book><chapter><para><indexterm><primary>
#: freeculture.xml:12634
msgid "\"copyleft\" licenses"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12606
msgid ""
"I don't mean to enter that debate here. It is important only to make clear "
"that the distinction is not between commercial and noncommercial "
"software. There are many important companies that depend fundamentally upon "
"open source and free software, IBM being the most prominent. IBM is "
"increasingly shifting its focus to the GNU/Linux operating system, the most "
"famous bit of \"free software\"&mdash;and IBM is emphatically a commercial "
"entity. Thus, to support \"open source and free software\" is not to oppose "
"commercial entities. It is, instead, to support a mode of software "
"development that is different from Microsoft's.<placeholder "
"type=\"footnote\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> "
"<placeholder type=\"indexterm\" id=\"2\"/> <placeholder type=\"indexterm\" "
"id=\"3\"/> <placeholder type=\"indexterm\" id=\"4\"/>"
msgstr ""

#.  PAGE BREAK 272 
#. type: Content of: <book><chapter><para>
#: freeculture.xml:12639
msgid ""
"More important for our purposes, to support \"open source and free "
"software\" is not to oppose copyright. \"Open source and free software\" is "
"not software in the public domain. Instead, like Microsoft's software, the "
"copyright owners of free and open source software insist quite strongly that "
"the terms of their software license be respected by adopters of free and "
"open source software. The terms of that license are no doubt different from "
"the terms of a proprietary software license.  Free software licensed under "
"the General Public License (GPL), for example, requires that the source code "
"for the software be made available by anyone who modifies and redistributes "
"the software. But that requirement is effective only if copyright governs "
"software. If copyright did not govern software, then free software could not "
"impose the same kind of requirements on its adopters. It thus depends upon "
"copyright law just as Microsoft does."
msgstr ""

#.  f9. 
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:12665
msgid ""
"Krim, \"The Quiet War over Open-Source,\" available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #64</ulink>."
msgstr ""

#. type: Content of: <book><chapter><para><indexterm><primary>
#: freeculture.xml:12669
msgid "Krim, Jonathan"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12657
msgid ""
"It is therefore understandable that as a proprietary software developer, "
"Microsoft would oppose this WIPO meeting, and understandable that it would "
"use its lobbyists to get the United States government to oppose it, as "
"well. And indeed, that is just what was reported to have happened. According "
"to Jonathan Krim of the <citetitle>Washington Post</citetitle>, Microsoft's "
"lobbyists succeeded in getting the United States government to veto the "
"meeting.<placeholder type=\"footnote\" id=\"0\"/> And without U.S. backing, "
"the meeting was canceled.  <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12672
msgid ""
"I don't blame Microsoft for doing what it can to advance its own interests, "
"consistent with the law. And lobbying governments is plainly consistent with "
"the law. There was nothing surprising about its lobbying here, and nothing "
"terribly surprising about the most powerful software producer in the United "
"States having succeeded in its lobbying efforts."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12680
msgid ""
"What was surprising was the United States government's reason for opposing "
"the meeting. Again, as reported by Krim, Lois Boland, acting director of "
"international relations for the U.S. Patent and Trademark Office, explained "
"that \"open-source software runs counter to the mission of WIPO, which is to "
"promote intellectual-property rights.\" She is quoted as saying, \"To hold a "
"meeting which has as its purpose to disclaim or waive such rights seems to "
"us to be contrary to the goals of WIPO.\""
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12690
msgid "These statements are astonishing on a number of levels."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12694
msgid ""
"First, they are just flat wrong. As I described, most open source and free "
"software relies fundamentally upon the intellectual property right called "
"\"copyright\".  Without it, restrictions imposed by those licenses wouldn't "
"work. Thus, to say it \"runs counter\" to the mission of promoting "
"intellectual property rights reveals an extraordinary gap in "
"understanding&mdash;the sort of mistake that is excusable in a first-year "
"law student, but an embarrassment from a high government official dealing "
"with intellectual property issues."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12704
msgid ""
"Second, who ever said that WIPO's exclusive aim was to \"promote\" "
"intellectual property maximally? As I had been scolded at the preparatory "
"conference of WSIS, WIPO is to consider not only how best to protect "
"intellectual property, but also what the best balance of intellectual "
"property is. As every economist and lawyer knows, the hard question in "
"intellectual property law is to find that balance. But that there should be "
"limits is, I had thought, uncontested. One wants to ask Ms. Boland, are "
"generic drugs (drugs based on drugs whose patent has expired) contrary to "
"the WIPO mission? Does the public domain weaken intellectual property? Would "
"it have been better if the protocols of the Internet had been patented?"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12717
msgid ""
"Third, even if one believed that the purpose of WIPO was to maximize "
"intellectual property rights, in our tradition, intellectual property rights "
"are held by individuals and corporations. They get to decide what to do with "
"those rights because, again, they are <emphasis>their</emphasis> rights. If "
"they want to \"waive\" or \"disclaim\" their rights, that is, within our "
"tradition, totally appropriate. When Bill Gates gives away more than $20 "
"billion to do good in the world, that is not inconsistent with the "
"objectives of the property system. That is, on the contrary, just what a "
"property system is supposed to be about: giving individuals the right to "
"decide what to do with <emphasis>their</emphasis> property.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 274 
#. type: Content of: <book><chapter><para>
#: freeculture.xml:12731
msgid ""
"When Ms. Boland says that there is something wrong with a meeting \"which "
"has as its purpose to disclaim or waive such rights,\" she's saying that "
"WIPO has an interest in interfering with the choices of the individuals who "
"own intellectual property rights. That somehow, WIPO's objective should be "
"to stop an individual from \"waiving\" or \"disclaiming\" an intellectual "
"property right. That the interest of WIPO is not just that intellectual "
"property rights be maximized, but that they also should be exercised in the "
"most extreme and restrictive way possible."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12743
msgid ""
"There is a history of just such a property system that is well known in the "
"Anglo-American tradition. It is called \"feudalism.\" Under feudalism, not "
"only was property held by a relatively small number of individuals and "
"entities. And not only were the rights that ran with that property powerful "
"and extensive. But the feudal system had a strong interest in assuring that "
"property holders within that system not weaken feudalism by liberating "
"people or property within their control to the free market. Feudalism "
"depended upon maximum control and concentration. It fought any freedom that "
"might interfere with that control."
msgstr ""

#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:12760
msgid ""
"See Drahos with Braithwaite, <citetitle>Information Feudalism</citetitle>, "
"210&ndash;20.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12757
msgid ""
"As Peter Drahos and John Braithwaite relate, this is precisely the choice we "
"are now making about intellectual property.<placeholder type=\"footnote\" "
"id=\"0\"/> We will have an information society. That much is certain. Our "
"only choice now is whether that information society will be "
"<emphasis>free</emphasis> or <emphasis>feudal</emphasis>. The trend is "
"toward the feudal."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12769
msgid ""
"When this battle broke, I blogged it. A spirited debate within the comment "
"section ensued. Ms. Boland had a number of supporters who tried to show why "
"her comments made sense. But there was one comment that was particularly "
"depressing for me. An anonymous poster wrote,"
msgstr ""

#.  PAGE BREAK 275 
#. type: Content of: <book><chapter><blockquote><para>
#: freeculture.xml:12776
msgid ""
"George, you misunderstand Lessig: He's only talking about the world as it "
"should be (\"the goal of WIPO, and the goal of any government, should be to "
"promote the right balance of intellectual property rights, not simply to "
"promote intellectual property rights\"), not as it is. If we were talking "
"about the world as it is, then of course Boland didn't say anything "
"wrong. But in the world as Lessig would have it, then of course she "
"did. Always pay attention to the distinction between Lessig's world and "
"ours."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12788
msgid ""
"I missed the irony the first time I read it. I read it quickly and thought "
"the poster was supporting the idea that seeking balance was what our "
"government should be doing. (Of course, my criticism of Ms.  Boland was not "
"about whether she was seeking balance or not; my criticism was that her "
"comments betrayed a first-year law student's mistake. I have no illusion "
"about the extremism of our government, whether Republican or Democrat. My "
"only illusion apparently is about whether our government should speak the "
"truth or not.)"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12798
msgid ""
"Obviously, however, the poster was not supporting that idea.  Instead, the "
"poster was ridiculing the very idea that in the real world, the \"goal\" of "
"a government should be \"to promote the right balance\" of intellectual "
"property. That was obviously silly to him. And it obviously betrayed, he "
"believed, my own silly utopianism. \"Typical for an academic,\" the poster "
"might well have continued."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12806
msgid ""
"I understand criticism of academic utopianism. I think utopianism is silly, "
"too, and I'd be the first to poke fun at the absurdly unrealistic ideals of "
"academics throughout history (and not just in our own country's history)."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12812
msgid ""
"But when it has become silly to suppose that the role of our government "
"should be to \"seek balance,\" then count me with the silly, for that means "
"that this has become quite serious indeed. If it should be obvious to "
"everyone that the government does not seek balance, that the government is "
"simply the tool of the most powerful lobbyists, that the idea of holding the "
"government to a different standard is absurd, that the idea of demanding of "
"the government that it speak truth and not lies is just na&iuml;ve, then who "
"have we, the most powerful democracy in the world, become?"
msgstr ""

#.  PAGE BREAK 276 
#. type: Content of: <book><chapter><para>
#: freeculture.xml:12823
msgid ""
"It might be crazy to expect a high government official to speak the "
"truth. It might be crazy to believe that government policy will be something "
"more than the handmaiden of the most powerful interests.  It might be crazy "
"to argue that we should preserve a tradition that has been part of our "
"tradition for most of our history&mdash;free culture."
msgstr ""

#. type: Content of: <book><chapter><para><indexterm><primary>
#: freeculture.xml:12842
msgid "Turner, Ted"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12832
msgid ""
"If this is crazy, then let there be more crazies. Soon.  There are moments "
"of hope in this struggle. And moments that surprise. When the FCC was "
"considering relaxing ownership rules, which would thereby further increase "
"the concentration in media ownership, an extraordinary bipartisan coalition "
"formed to fight this change. For perhaps the first time in history, "
"interests as diverse as the NRA, the ACLU, Moveon.org, William Safire, Ted "
"Turner, and CodePink Women for Peace organized to oppose this change in FCC "
"policy. An astonishing 700,000 letters were sent to the FCC, demanding more "
"hearings and a different result.  <placeholder type=\"indexterm\" id=\"0\"/> "
"<placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12846
msgid ""
"This activism did not stop the FCC, but soon after, a broad coalition in the "
"Senate voted to reverse the FCC decision. The hostile hearings leading up to "
"that vote revealed just how powerful this movement had become. There was no "
"substantial support for the FCC's decision, and there was broad and "
"sustained support for fighting further concentration in the media."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12854
msgid ""
"But even this movement misses an important piece of the puzzle.  Largeness "
"as such is not bad. Freedom is not threatened just because some become very "
"rich, or because there are only a handful of big players.  The poor quality "
"of Big Macs or Quarter Pounders does not mean that you can't get a good "
"hamburger from somewhere else."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12861
msgid ""
"The danger in media concentration comes not from the concentration, but "
"instead from the feudalism that this concentration, tied to the change in "
"copyright, produces. It is not just that there are a few powerful companies "
"that control an ever expanding slice of the media. It is that this "
"concentration can call upon an equally bloated range of "
"rights&mdash;property rights of a historically extreme form&mdash;that makes "
"their bigness bad."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12871
msgid ""
"It is therefore significant that so many would rally to demand competition "
"and increased diversity. Still, if the rally is understood as being about "
"bigness alone, it is not terribly surprising. We Americans have a long "
"history of fighting \"big,\" wisely or not. That we could be motivated to "
"fight \"big\" again is not something new."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12878
msgid ""
"It would be something new, and something very important, if an equal number "
"could be rallied to fight the increasing extremism built within the idea of "
"\"intellectual property.\" Not because balance is alien to our tradition; "
"indeed, as I've argued, balance is our tradition. But because the muscle to "
"think critically about the scope of anything called \"property\" is not well "
"exercised within this tradition anymore."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12886
msgid ""
"If we were Achilles, this would be our heel. This would be the place of our "
"tragedy."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:12889
msgid "Dylan, Bob"
msgstr ""

#.  f11. 
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:12894
msgid ""
"John Borland, \"RIAA Sues 261 File Swappers,\" CNET News.com, September "
"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#65</ulink>; Paul R. La Monica, \"Music Industry Sues Swappers,\" CNN/Money, "
"8 September 2003, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #66</ulink>; Soni Sangha and "
"Phyllis Furman with Robert Gearty, \"Sued for a Song, N.Y.C. 12-Yr-Old Among "
"261 Cited as Sharers,\" <citetitle>New York Daily News</citetitle>, 9 "
"September 2003, 3; Frank Ahrens, \"RIAA's Lawsuits Meet Surprised Targets; "
"Single Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,\" "
"<citetitle>Washington Post</citetitle>, 10 September 2003, E1; Katie Dean, "
"\"Schoolgirl Settles with RIAA,\" <citetitle>Wired News</citetitle>, 10 "
"September 2003, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #67</ulink>."
msgstr ""

#.  f12. 
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:12912
msgid ""
"Jon Wiederhorn, \"Eminem Gets Sued &hellip; by a Little Old Lady,\" mtv.com, "
"17 September 2003, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #68</ulink>."
msgstr ""

#.  f13. 
#.  PAGE BREAK 334 
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:12919
msgid ""
"Kenji Hall, Associated Press, \"Japanese Book May Be Inspiration for Dylan "
"Songs,\" Kansascity.com, 9 July 2003, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #69</ulink>."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12891
msgid ""
"As I write these final words, the news is filled with stories about the RIAA "
"lawsuits against almost three hundred individuals.<placeholder "
"type=\"footnote\" id=\"0\"/> Eminem has just been sued for \"sampling\" "
"someone else's music.<placeholder type=\"footnote\" id=\"1\"/> The story "
"about Bob Dylan \"stealing\" from a Japanese author has just finished making "
"the rounds.<placeholder type=\"footnote\" id=\"2\"/> An insider from "
"Hollywood&mdash;who insists he must remain anonymous&mdash;reports \"an "
"amazing conversation with these studio guys. They've got extraordinary [old] "
"content that they'd love to use but can't because they can't begin to clear "
"the rights. They've got scores of kids who could do amazing things with the "
"content, but it would take scores of lawyers to clean it first.\" "
"Congressmen are talking about deputizing computer viruses to bring down "
"computers thought to violate the law. Universities are threatening expulsion "
"for kids who use a computer to share content."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:12936 freeculture.xml:13296
msgid "Creative Commons"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:12937
msgid "Gil, Gilberto"
msgstr ""

#.  f14. 
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:12942
msgid ""
"\"BBC Plans to Open Up Its Archive to the Public,\" BBC press release, 24 "
"August 2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#70</ulink>."
msgstr ""

#.  f15. 
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:12951
msgid ""
"\"Creative Commons and Brazil,\" Creative Commons Weblog, 6 August 2003, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #71</ulink>."
msgstr ""

#.  PAGE BREAK 278 
#. type: Content of: <book><chapter><para>
#: freeculture.xml:12939
msgid ""
"Yet on the other side of the Atlantic, the BBC has just announced that it "
"will build a \"Creative Archive,\" from which British citizens can download "
"BBC content, and rip, mix, and burn it.<placeholder type=\"footnote\" "
"id=\"0\"/> And in Brazil, the culture minister, Gilberto Gil, himself a folk "
"hero of Brazilian music, has joined with Creative Commons to release content "
"and free licenses in that Latin American country.<placeholder "
"type=\"footnote\" id=\"1\"/> I've told a dark story. The truth is more "
"mixed. A technology has given us a new freedom. Slowly, some begin to "
"understand that this freedom need not mean anarchy. We can carry a free "
"culture into the twenty-first century, without artists losing and without "
"the potential of digital technology being destroyed. It will take some "
"thought, and more importantly, it will take some will to transform the RCAs "
"of our day into the Causbys."
msgstr ""

#.  PAGE BREAK 279 
#. type: Content of: <book><chapter><para>
#: freeculture.xml:12965
msgid ""
"Common sense must revolt. It must act to free culture. Soon, if this "
"potential is ever to be realized."
msgstr ""

#. type: Content of: <book><chapter><title>
#: freeculture.xml:12973
msgid "AFTERWORD"
msgstr ""

#.  PAGE BREAK 280 
#. type: Content of: <book><chapter><para>
#: freeculture.xml:12977
msgid ""
"At least some who have read this far will agree with me that something must "
"be done to change where we are heading. The balance of this book maps what "
"might be done."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12982
msgid ""
"I divide this map into two parts: that which anyone can do now, and that "
"which requires the help of lawmakers. If there is one lesson that we can "
"draw from the history of remaking common sense, it is that it requires "
"remaking how many people think about the very same issue."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12988
msgid ""
"That means this movement must begin in the streets. It must recruit a "
"significant number of parents, teachers, librarians, creators, authors, "
"musicians, filmmakers, scientists&mdash;all to tell this story in their own "
"words, and to tell their neighbors why this battle is so important."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:12995
msgid ""
"Once this movement has its effect in the streets, it has some hope of having "
"an effect in Washington. We are still a democracy. What people think "
"matters. Not as much as it should, at least when an RCA stands opposed, but "
"still, it matters. And thus, in the second part below, I sketch changes that "
"Congress could make to better secure a free culture."
msgstr ""

#. type: Content of: <book><chapter><section><title>
#: freeculture.xml:13004
msgid "US, NOW"
msgstr ""

#. type: Content of: <book><chapter><section><para>
#: freeculture.xml:13006
msgid ""
"Common sense is with the copyright warriors because the debate so far has "
"been framed at the extremes&mdash;as a grand either/or: either property or "
"anarchy, either total control or artists won't be paid. If that really is "
"the choice, then the warriors should win."
msgstr ""

#. type: Content of: <book><chapter><section><para>
#: freeculture.xml:13012
msgid ""
"The mistake here is the error of the excluded middle. There are extremes in "
"this debate, but the extremes are not all that there is. There are those who "
"believe in maximal copyright&mdash;\"All Rights Reserved\"&mdash; and those "
"who reject copyright&mdash;\"No Rights Reserved.\" The \"All Rights "
"Reserved\" sorts believe that you should ask permission before you \"use\" a "
"copyrighted work in any way. The \"No Rights Reserved\" sorts believe you "
"should be able to do with content as you wish, regardless of whether you "
"have permission or not."
msgstr ""

#.  PAGE BREAK 282 
#. type: Content of: <book><chapter><section><para>
#: freeculture.xml:13022
msgid ""
"When the Internet was first born, its initial architecture effectively "
"tilted in the \"no rights reserved\" direction. Content could be copied "
"perfectly and cheaply; rights could not easily be controlled. Thus, "
"regardless of anyone's desire, the effective regime of copyright under the "
"original design of the Internet was \"no rights reserved.\" Content was "
"\"taken\" regardless of the rights. Any rights were effectively unprotected."
msgstr ""

#. type: Content of: <book><chapter><section><para>
#: freeculture.xml:13034
msgid ""
"This initial character produced a reaction (opposite, but not quite equal) "
"by copyright owners. That reaction has been the topic of this book. Through "
"legislation, litigation, and changes to the network's design, copyright "
"holders have been able to change the essential character of the environment "
"of the original Internet. If the original architecture made the effective "
"default \"no rights reserved,\" the future architecture will make the "
"effective default \"all rights reserved.\" The architecture and law that "
"surround the Internet's design will increasingly produce an environment "
"where all use of content requires permission.  The \"cut and paste\" world "
"that defines the Internet today will become a \"get permission to cut and "
"paste\" world that is a creator's nightmare."
msgstr ""

#. type: Content of: <book><chapter><section><para>
#: freeculture.xml:13048
msgid ""
"What's needed is a way to say something in the middle&mdash;neither \"all "
"rights reserved\" nor \"no rights reserved\" but \"some rights "
"reserved\"&mdash; and thus a way to respect copyrights but enable creators "
"to free content as they see fit. In other words, we need a way to restore a "
"set of freedoms that we could just take for granted before."
msgstr ""

#. type: Content of: <book><chapter><section><section><title>
#: freeculture.xml:13057
msgid "Rebuilding Freedoms Previously Presumed: Examples"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13059
msgid ""
"If you step back from the battle I've been describing here, you will "
"recognize this problem from other contexts. Think about privacy. Before the "
"Internet, most of us didn't have to worry much about data about our lives "
"that we broadcast to the world. If you walked into a bookstore and browsed "
"through some of the works of Karl Marx, you didn't need to worry about "
"explaining your browsing habits to your neighbors or boss. The \"privacy\" "
"of your browsing habits was assured."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13069
msgid "What made it assured?"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13073
msgid ""
"Well, if we think in terms of the modalities I described in chapter <xref "
"xrefstyle=\"select: labelnumber\" linkend=\"property-i\"/>, your privacy was "
"assured because of an inefficient architecture for gathering data and hence "
"a market constraint (cost) on anyone who wanted to gather that data. If you "
"were a suspected spy for North Korea, working for the CIA, no doubt your "
"privacy would not be assured.  But that's because the CIA would (we hope) "
"find it valuable enough to spend the thousands required to track you. But "
"for most of us (again, we can hope), spying doesn't pay. The highly "
"inefficient architecture of real space means we all enjoy a fairly robust "
"amount of privacy. That privacy is guaranteed to us by friction. Not by law "
"(there is no law protecting \"privacy\" in public places), and in many "
"places, not by norms (snooping and gossip are just fun), but instead, by the "
"costs that friction imposes on anyone who would want to spy."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:13088
msgid "Amazon"
msgstr ""

#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
#: freeculture.xml:13098
msgid "cookies, Internet"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13090
msgid ""
"Enter the Internet, where the cost of tracking browsing in particular has "
"become quite tiny. If you're a customer at Amazon, then as you browse the "
"pages, Amazon collects the data about what you've looked at. You know this "
"because at the side of the page, there's a list of \"recently viewed\" "
"pages. Now, because of the architecture of the Net and the function of "
"cookies on the Net, it is easier to collect the data than not. The friction "
"has disappeared, and hence any \"privacy\" protected by the friction "
"disappears, too.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13101
msgid ""
"Amazon, of course, is not the problem. But we might begin to worry about "
"libraries. If you're one of those crazy lefties who thinks that people "
"should have the \"right\" to browse in a library without the government "
"knowing which books you look at (I'm one of those lefties, too), then this "
"change in the technology of monitoring might concern you. If it becomes "
"simple to gather and sort who does what in electronic spaces, then the "
"friction-induced privacy of yesterday disappears."
msgstr ""

#.  f1. 
#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:13117
msgid ""
"See, for example, Marc Rotenberg, \"Fair Information Practices and the "
"Architecture of Privacy (What Larry Doesn't Get),\" <citetitle>Stanford "
"Technology Law Review</citetitle> 1 (2001): par. 6&ndash;18, available at "
"<ulink url=\"http://free-culture.cc/notes/\">link #72</ulink> (describing "
"examples in which technology defines privacy policy). See also Jeffrey "
"Rosen, <citetitle>The Naked Crowd: Reclaiming Security and Freedom in an "
"Anxious Age</citetitle> (New York: Random House, 2004) (mapping tradeoffs "
"between technology and privacy)."
msgstr ""

#.  PAGE BREAK 284 
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13111
msgid ""
"It is this reality that explains the push of many to define \"privacy\" on "
"the Internet. It is the recognition that technology can remove what friction "
"before gave us that leads many to push for laws to do what friction "
"did.<placeholder type=\"footnote\" id=\"0\"/> And whether you're in favor of "
"those laws or not, it is the pattern that is important here. We must take "
"affirmative steps to secure a kind of freedom that was passively provided "
"before. A change in technology now forces those who believe in privacy to "
"affirmatively act where, before, privacy was given by default."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13135
msgid ""
"A similar story could be told about the birth of the free software "
"movement. When computers with software were first made available "
"commercially, the software&mdash;both the source code and the "
"binaries&mdash; was free. You couldn't run a program written for a Data "
"General machine on an IBM machine, so Data General and IBM didn't care much "
"about controlling their software.  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:13143
msgid "Stallman, Richard"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13145
msgid ""
"That was the world Richard Stallman was born into, and while he was a "
"researcher at MIT, he grew to love the community that developed when one was "
"free to explore and tinker with the software that ran on machines. Being a "
"smart sort himself, and a talented programmer, Stallman grew to depend upon "
"the freedom to add to or modify other people's work."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13153
msgid ""
"In an academic setting, at least, that's not a terribly radical idea. In a "
"math department, anyone would be free to tinker with a proof that someone "
"offered. If you thought you had a better way to prove a theorem, you could "
"take what someone else did and change it. In a classics department, if you "
"believed a colleague's translation of a recently discovered text was flawed, "
"you were free to improve it. Thus, to Stallman, it seemed obvious that you "
"should be free to tinker with and improve the code that ran a machine. This, "
"too, was knowledge. Why shouldn't it be open for criticism like anything "
"else?"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13165
msgid ""
"No one answered that question. Instead, the architecture of revenue for "
"computing changed. As it became possible to import programs from one system "
"to another, it became economically attractive (at least in the view of some) "
"to hide the code of your program. So, too, as companies started selling "
"peripherals for mainframe systems. If I could just take your printer driver "
"and copy it, then that would make it easier for me to sell a printer to the "
"market than it was for you."
msgstr ""

#.  PAGE BREAK 285 
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13174
msgid ""
"Thus, the practice of proprietary code began to spread, and by the early "
"1980s, Stallman found himself surrounded by proprietary code.  The world of "
"free software had been erased by a change in the economics of computing. And "
"as he believed, if he did nothing about it, then the freedom to change and "
"share software would be fundamentally weakened."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13183
msgid ""
"Therefore, in 1984, Stallman began a project to build a free operating "
"system, so that at least a strain of free software would survive. That was "
"the birth of the GNU project, into which Linus Torvalds's \"Linux\" kernel "
"was added to produce the GNU/Linux operating system.  <placeholder "
"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13191
msgid ""
"Stallman's technique was to use copyright law to build a world of software "
"that must be kept free. Software licensed under the Free Software "
"Foundation's GPL cannot be modified and distributed unless the source code "
"for that software is made available as well. Thus, anyone building upon "
"GPL'd software would have to make their buildings free as well. This would "
"assure, Stallman believed, that an ecology of code would develop that "
"remained free for others to build upon. His fundamental goal was freedom; "
"innovative creative code was a byproduct."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13202
msgid ""
"Stallman was thus doing for software what privacy advocates now do for "
"privacy. He was seeking a way to rebuild a kind of freedom that was taken "
"for granted before. Through the affirmative use of licenses that bind "
"copyrighted code, Stallman was affirmatively reclaiming a space where free "
"software would survive. He was actively protecting what before had been "
"passively guaranteed."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13210
msgid ""
"Finally, consider a very recent example that more directly resonates with "
"the story of this book. This is the shift in the way academic and scientific "
"journals are produced."
msgstr ""

#.  PAGE BREAK 286 
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13218
msgid ""
"As digital technologies develop, it is becoming obvious to many that "
"printing thousands of copies of journals every month and sending them to "
"libraries is perhaps not the most efficient way to distribute "
"knowledge. Instead, journals are increasingly becoming electronic, and "
"libraries and their users are given access to these electronic journals "
"through password-protected sites. Something similar to this has been "
"happening in law for almost thirty years: Lexis and Westlaw have had "
"electronic versions of case reports available to subscribers to their "
"service.  Although a Supreme Court opinion is not copyrighted, and anyone is "
"free to go to a library and read it, Lexis and Westlaw are also free to "
"charge users for the privilege of gaining access to that Supreme Court "
"opinion through their respective services."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13234
msgid ""
"There's nothing wrong in general with this, and indeed, the ability to "
"charge for access to even public domain materials is a good incentive for "
"people to develop new and innovative ways to spread knowledge.  The law has "
"agreed, which is why Lexis and Westlaw have been allowed to flourish. And if "
"there's nothing wrong with selling the public domain, then there could be "
"nothing wrong, in principle, with selling access to material that is not in "
"the public domain."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13243
msgid ""
"But what if the only way to get access to social and scientific data was "
"through proprietary services? What if no one had the ability to browse this "
"data except by paying for a subscription?"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13248
msgid ""
"As many are beginning to notice, this is increasingly the reality with "
"scientific journals. When these journals were distributed in paper form, "
"libraries could make the journals available to anyone who had access to the "
"library. Thus, patients with cancer could become cancer experts because the "
"library gave them access. Or patients trying to understand the risks of a "
"certain treatment could research those risks by reading all available "
"articles about that treatment. This freedom was therefore a function of the "
"institution of libraries (norms) and the technology of paper journals "
"(architecture)&mdash;namely, that it was very hard to control access to a "
"paper journal."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13260
msgid ""
"As journals become electronic, however, the publishers are demanding that "
"libraries not give the general public access to the journals. This means "
"that the freedoms provided by print journals in public libraries begin to "
"disappear. Thus, as with privacy and with software, a changing technology "
"and market shrink a freedom taken for granted before."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13268
msgid ""
"This shrinking freedom has led many to take affirmative steps to restore the "
"freedom that has been lost. The Public Library of Science (PLoS), for "
"example, is a nonprofit corporation dedicated to making scientific research "
"available to anyone with a Web connection. Authors of scientific work submit "
"that work to the Public Library of Science.  That work is then subject to "
"peer review. If accepted, the work is then deposited in a public, electronic "
"archive and made permanently available for free. PLoS also sells a print "
"version of its work, but the copyright for the print journal does not "
"inhibit the right of anyone to redistribute the work for free.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13282
msgid ""
"This is one of many such efforts to restore a freedom taken for granted "
"before, but now threatened by changing technology and markets.  There's no "
"doubt that this alternative competes with the traditional publishers and "
"their efforts to make money from the exclusive distribution of content. But "
"competition in our tradition is presumptively a good&mdash;especially when "
"it helps spread knowledge and science."
msgstr ""

#. type: Content of: <book><chapter><section><section><title>
#: freeculture.xml:13294
msgid "Rebuilding Free Culture: One Idea"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13299
msgid ""
"The same strategy could be applied to culture, as a response to the "
"increasing control effected through law and technology."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13303
msgid ""
"Enter the Creative Commons. The Creative Commons is a nonprofit corporation "
"established in Massachusetts, but with its home at Stanford University. Its "
"aim is to build a layer of <emphasis>reasonable</emphasis> copyright on top "
"of the extremes that now reign. It does this by making it easy for people to "
"build upon other people's work, by making it simple for creators to express "
"the freedom for others to take and build upon their work. Simple tags, tied "
"to human-readable descriptions, tied to bulletproof licenses, make this "
"possible."
msgstr ""

#.  PAGE BREAK 288 
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13314
msgid ""
"<emphasis>Simple</emphasis>&mdash;which means without a middleman, or "
"without a lawyer.  By developing a free set of licenses that people can "
"attach to their content, Creative Commons aims to mark a range of content "
"that can easily, and reliably, be built upon. These tags are then linked to "
"machine-readable versions of the license that enable computers automatically "
"to identify content that can easily be shared. These three expressions "
"together&mdash;a legal license, a human-readable description, and "
"machine-readable tags&mdash;constitute a Creative Commons license. A "
"Creative Commons license constitutes a grant of freedom to anyone who "
"accesses the license, and more importantly, an expression of the ideal that "
"the person associated with the license believes in something different than "
"the \"All\" or \"No\" extremes. Content is marked with the CC mark, which "
"does not mean that copyright is waived, but that certain freedoms are given."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13332
msgid ""
"These freedoms are beyond the freedoms promised by fair use. Their precise "
"contours depend upon the choices the creator makes. The creator can choose a "
"license that permits any use, so long as attribution is given. She can "
"choose a license that permits only noncommercial use.  She can choose a "
"license that permits any use so long as the same freedoms are given to other "
"uses (\"share and share alike\"). Or any use so long as no derivative use is "
"made. Or any use at all within developing nations. Or any sampling use, so "
"long as full copies are not made. Or lastly, any educational use."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13343
msgid ""
"These choices thus establish a range of freedoms beyond the default of "
"copyright law. They also enable freedoms that go beyond traditional fair "
"use. And most importantly, they express these freedoms in a way that "
"subsequent users can use and rely upon without the need to hire a "
"lawyer. Creative Commons thus aims to build a layer of content, governed by "
"a layer of reasonable copyright law, that others can build upon. Voluntary "
"choice of individuals and creators will make this content available. And "
"that content will in turn enable us to rebuild a public domain."
msgstr ""

#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
#: freeculture.xml:13364
msgid "Garlick, Mia"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13354
msgid ""
"This is just one project among many within the Creative Commons.  And of "
"course, Creative Commons is not the only organization pursuing such "
"freedoms. But the point that distinguishes the Creative Commons from many is "
"that we are not interested only in talking about a public domain or in "
"getting legislators to help build a public domain. Our aim is to build a "
"movement of consumers and producers of content (\"content conducers,\" as "
"attorney Mia Garlick calls them)  who help build the public domain and, by "
"their work, demonstrate the importance of the public domain to other "
"creativity.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13367
msgid ""
"The aim is not to fight the \"All Rights Reserved\" sorts. The aim is to "
"complement them. The problems that the law creates for us as a culture are "
"produced by insane and unintended consequences of laws written centuries "
"ago, applied to a technology that only Jefferson could have imagined. The "
"rules may well have made sense against a background of technologies from "
"centuries ago, but they do not make sense against the background of digital "
"technologies. New rules&mdash;with different freedoms, expressed in ways so "
"that humans without lawyers can use them&mdash;are needed. Creative Commons "
"gives people a way effectively to begin to build those rules."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13379
msgid ""
"Why would creators participate in giving up total control? Some participate "
"to better spread their content. Cory Doctorow, for example, is a science "
"fiction author. His first novel, <citetitle>Down and Out in the Magic "
"Kingdom</citetitle>, was released on-line and for free, under a Creative "
"Commons license, on the same day that it went on sale in bookstores."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13386
msgid ""
"Why would a publisher ever agree to this? I suspect his publisher reasoned "
"like this: There are two groups of people out there: (1)  those who will buy "
"Cory's book whether or not it's on the Internet, and (2) those who may never "
"hear of Cory's book, if it isn't made available for free on the "
"Internet. Some part of (1) will download Cory's book instead of buying "
"it. Call them bad-(1)s. Some part of (2)  will download Cory's book, like "
"it, and then decide to buy it. Call them (2)-goods.  If there are more "
"(2)-goods than bad-(1)s, the strategy of releasing Cory's book free on-line "
"will probably <emphasis>increase</emphasis> sales of Cory's book."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13398
msgid ""
"Indeed, the experience of his publisher clearly supports that conclusion.  "
"The book's first printing was exhausted months before the publisher had "
"expected. This first novel of a science fiction author was a total success."
msgstr ""

#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
#: freeculture.xml:13413
msgid "Free for All (Wayner)"
msgstr ""

#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
#: freeculture.xml:13414
msgid "Wayner, Peter"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13404
msgid ""
"The idea that free content might increase the value of nonfree content was "
"confirmed by the experience of another author. Peter Wayner, who wrote a "
"book about the free software movement titled <citetitle>Free for "
"All</citetitle>, made an electronic version of his book free on-line under a "
"Creative Commons license after the book went out of print. He then monitored "
"used book store prices for the book. As predicted, as the number of "
"downloads increased, the used book price for his book increased, as well.  "
"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
"id=\"1\"/>"
msgstr ""

#.  f2. 
#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:13432
msgid ""
"<citetitle>Willful Infringement: A Report from the Front Lines of the Real "
"Culture Wars</citetitle> (2003), produced by Jed Horovitz, directed by Greg "
"Hittelman, a Fiat Lucre production, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #72</ulink>."
msgstr ""

#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
#: freeculture.xml:13439
msgid "Leaphart, Walter"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13417
msgid ""
"These are examples of using the Commons to better spread proprietary "
"content. I believe that is a wonderful and common use of the Commons. There "
"are others who use Creative Commons licenses for other reasons. Many who use "
"the \"sampling license\" do so because anything else would be "
"hypocritical. The sampling license says that others are free, for commercial "
"or noncommercial purposes, to sample content from the licensed work; they "
"are just not free to make full copies of the licensed work available to "
"others. This is consistent with their own art&mdash;they, too, sample from "
"others. Because the <emphasis>legal</emphasis> costs of sampling are so high "
"(Walter Leaphart, manager of the rap group Public Enemy, which was born "
"sampling the music of others, has stated that he does not \"allow\" Public "
"Enemy to sample anymore, because the legal costs are so high<placeholder "
"type=\"footnote\" id=\"0\"/>), these artists release into the creative "
"environment content that others can build upon, so that their form of "
"creativity might grow.  <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13442
msgid ""
"Finally, there are many who mark their content with a Creative Commons "
"license just because they want to express to others the importance of "
"balance in this debate. If you just go along with the system as it is, you "
"are effectively saying you believe in the \"All Rights Reserved\" "
"model. Good for you, but many do not. Many believe that however appropriate "
"that rule is for Hollywood and freaks, it is not an appropriate description "
"of how most creators view the rights associated with their content. The "
"Creative Commons license expresses this notion of \"Some Rights Reserved,\" "
"and gives many the chance to say it to others."
msgstr ""

#.  PAGE BREAK 291 
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13454
msgid ""
"In the first six months of the Creative Commons experiment, over 1 million "
"objects were licensed with these free-culture licenses. The next step is "
"partnerships with middleware content providers to help them build into their "
"technologies simple ways for users to mark their content with Creative "
"Commons freedoms. Then the next step is to watch and celebrate creators who "
"build content based upon content set free."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13464
msgid ""
"These are first steps to rebuilding a public domain. They are not mere "
"arguments; they are action. Building a public domain is the first step to "
"showing people how important that domain is to creativity and "
"innovation. Creative Commons relies upon voluntary steps to achieve this "
"rebuilding. They will lead to a world in which more than voluntary steps are "
"possible."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13472
msgid ""
"Creative Commons is just one example of voluntary efforts by individuals and "
"creators to change the mix of rights that now govern the creative field. The "
"project does not compete with copyright; it complements it. Its aim is not "
"to defeat the rights of authors, but to make it easier for authors and "
"creators to exercise their rights more flexibly and cheaply. That "
"difference, we believe, will enable creativity to spread more easily."
msgstr ""

#. type: Content of: <book><chapter><section><title>
#: freeculture.xml:13486
msgid "THEM, SOON"
msgstr ""

#. type: Content of: <book><chapter><section><para>
#: freeculture.xml:13488
msgid ""
"We will not reclaim a free culture by individual action alone. It will also "
"take important reforms of laws. We have a long way to go before the "
"politicians will listen to these ideas and implement these reforms.  But "
"that also means that we have time to build awareness around the changes that "
"we need."
msgstr ""

#. type: Content of: <book><chapter><section><para>
#: freeculture.xml:13495
msgid ""
"In this chapter, I outline five kinds of changes: four that are general, and "
"one that's specific to the most heated battle of the day, music. Each is a "
"step, not an end. But any of these steps would carry us a long way to our "
"end."
msgstr ""

#. type: Content of: <book><chapter><section><section><title>
#: freeculture.xml:13502
msgid "1. More Formalities"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13504
msgid ""
"If you buy a house, you have to record the sale in a deed. If you buy land "
"upon which to build a house, you have to record the purchase in a deed.  If "
"you buy a car, you get a bill of sale and register the car. If you buy an "
"airplane ticket, it has your name on it."
msgstr ""

#.  PAGE BREAK 293 
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13511
msgid ""
"These are all formalities associated with property. They are requirements "
"that we all must bear if we want our property to be protected."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13516
msgid ""
"In contrast, under current copyright law, you automatically get a copyright, "
"regardless of whether you comply with any formality. You don't have to "
"register. You don't even have to mark your content. The default is control, "
"and \"formalities\" are banished."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13522
msgid "Why?"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13525
msgid ""
"As I suggested in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"property-i\"/>, the motivation to abolish formalities was a good "
"one. In the world before digital technologies, formalities imposed a burden "
"on copyright holders without much benefit. Thus, it was progress when the "
"law relaxed the formal requirements that a copyright owner must bear to "
"protect and secure his work. Those formalities were getting in the way."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13534
msgid ""
"But the Internet changes all this. Formalities today need not be a "
"burden. Rather, the world without formalities is the world that burdens "
"creativity. Today, there is no simple way to know who owns what, or with "
"whom one must deal in order to use or build upon the creative work of "
"others. There are no records, there is no system to trace&mdash; there is no "
"simple way to know how to get permission. Yet given the massive increase in "
"the scope of copyright's rule, getting permission is a necessary step for "
"any work that builds upon our past. And thus, the <emphasis>lack</emphasis> "
"of formalities forces many into silence where they otherwise could speak."
msgstr ""

#.  f1. 
#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:13548
msgid ""
"The proposal I am advancing here would apply to American works only.  "
"Obviously, I believe it would be beneficial for the same idea to be adopted "
"by other countries as well."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13546
msgid ""
"The law should therefore change this requirement<placeholder "
"type=\"footnote\" id=\"0\"/>&mdash;but it should not change it by going back "
"to the old, broken system. We should require formalities, but we should "
"establish a system that will create the incentives to minimize the burden of "
"these formalities."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13556
msgid ""
"The important formalities are three: marking copyrighted work, registering "
"copyrights, and renewing the claim to copyright. Traditionally, the first of "
"these three was something the copyright owner did; the second two were "
"something the government did. But a revised system of formalities would "
"banish the government from the process, except for the sole purpose of "
"approving standards developed by others."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><title>
#: freeculture.xml:13568
msgid "REGISTRATION AND RENEWAL"
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:13570
msgid ""
"Under the old system, a copyright owner had to file a registration with the "
"Copyright Office to register or renew a copyright. When filing that "
"registration, the copyright owner paid a fee. As with most government "
"agencies, the Copyright Office had little incentive to minimize the burden "
"of registration; it also had little incentive to minimize the fee.  And as "
"the Copyright Office is not a main target of government policymaking, the "
"office has historically been terribly underfunded. Thus, when people who "
"know something about the process hear this idea about formalities, their "
"first reaction is panic&mdash;nothing could be worse than forcing people to "
"deal with the mess that is the Copyright Office."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:13583
msgid ""
"Yet it is always astonishing to me that we, who come from a tradition of "
"extraordinary innovation in governmental design, can no longer think "
"innovatively about how governmental functions can be designed.  Just because "
"there is a public purpose to a government role, it doesn't follow that the "
"government must actually administer the role. Instead, we should be creating "
"incentives for private parties to serve the public, subject to standards "
"that the government sets."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:13592
msgid ""
"In the context of registration, one obvious model is the Internet.  There "
"are at least 32 million Web sites registered around the world.  Domain name "
"owners for these Web sites have to pay a fee to keep their registration "
"alive. In the main top-level domains (.com, .org, .net), there is a central "
"registry. The actual registrations are, however, performed by many competing "
"registrars. That competition drives the cost of registering down, and more "
"importantly, it drives the ease with which registration occurs up."
msgstr ""

#.  PAGE BREAK 295 
#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:13602
msgid ""
"We should adopt a similar model for the registration and renewal of "
"copyrights. The Copyright Office may well serve as the central registry, but "
"it should not be in the registrar business. Instead, it should establish a "
"database, and a set of standards for registrars. It should approve "
"registrars that meet its standards. Those registrars would then compete with "
"one another to deliver the cheapest and simplest systems for registering and "
"renewing copyrights. That competition would substantially lower the burden "
"of this formality&mdash;while producing a database of registrations that "
"would facilitate the licensing of content."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><title>
#: freeculture.xml:13617
msgid "MARKING"
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:13619
msgid ""
"It used to be that the failure to include a copyright notice on a creative "
"work meant that the copyright was forfeited. That was a harsh punishment for "
"failing to comply with a regulatory rule&mdash;akin to imposing the death "
"penalty for a parking ticket in the world of creative rights.  Here again, "
"there is no reason that a marking requirement needs to be enforced in this "
"way. And more importantly, there is no reason a marking requirement needs to "
"be enforced uniformly across all media."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:13629
msgid ""
"The aim of marking is to signal to the public that this work is copyrighted "
"and that the author wants to enforce his rights. The mark also makes it easy "
"to locate a copyright owner to secure permission to use the work."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:13635
msgid ""
"One of the problems the copyright system confronted early on was that "
"different copyrighted works had to be differently marked. It wasn't clear "
"how or where a statue was to be marked, or a record, or a film. A new "
"marking requirement could solve these problems by recognizing the "
"differences in media, and by allowing the system of marking to evolve as "
"technologies enable it to. The system could enable a special signal from the "
"failure to mark&mdash;not the loss of the copyright, but the loss of the "
"right to punish someone for failing to get permission first."
msgstr ""

#.  f2. 
#. type: Content of: <book><chapter><section><section><section><para><footnote><para>
#: freeculture.xml:13652
msgid ""
"There would be a complication with derivative works that I have not solved "
"here. In my view, the law of derivatives creates a more complicated system "
"than is justified by the marginal incentive it creates."
msgstr ""

#.  PAGE BREAK 296 
#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:13645
msgid ""
"Let's start with the last point. If a copyright owner allows his work to be "
"published without a copyright notice, the consequence of that failure need "
"not be that the copyright is lost. The consequence could instead be that "
"anyone has the right to use this work, until the copyright owner complains "
"and demonstrates that it is his work and he doesn't give "
"permission.<placeholder type=\"footnote\" id=\"0\"/> The meaning of an "
"unmarked work would therefore be \"use unless someone complains.\" If "
"someone does complain, then the obligation would be to stop using the work "
"in any new work from then on though no penalty would attach for existing "
"uses.  This would create a strong incentive for copyright owners to mark "
"their work."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:13665
msgid ""
"That in turn raises the question about how work should best be marked. Here "
"again, the system needs to adjust as the technologies evolve. The best way "
"to ensure that the system evolves is to limit the Copyright Office's role to "
"that of approving standards for marking content that have been crafted "
"elsewhere."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:13672
msgid ""
"For example, if a recording industry association devises a method for "
"marking CDs, it would propose that to the Copyright Office. The Copyright "
"Office would hold a hearing, at which other proposals could be made. The "
"Copyright Office would then select the proposal that it judged preferable, "
"and it would base that choice <emphasis>solely</emphasis> upon the "
"consideration of which method could best be integrated into the registration "
"and renewal system. We would not count on the government to innovate; but we "
"would count on the government to keep the product of innovation in line with "
"its other important functions."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:13684
msgid ""
"Finally, marking content clearly would simplify registration requirements.  "
"If photographs were marked by author and year, there would be little reason "
"not to allow a photographer to reregister, for example, all photographs "
"taken in a particular year in one quick step. The aim of the formality is "
"not to burden the creator; the system itself should be kept as simple as "
"possible."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:13692
msgid ""
"The objective of formalities is to make things clear. The existing system "
"does nothing to make things clear. Indeed, it seems designed to make things "
"unclear."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:13697
msgid ""
"If formalities such as registration were reinstated, one of the most "
"difficult aspects of relying upon the public domain would be removed.  It "
"would be simple to identify what content is presumptively free; it would be "
"simple to identify who controls the rights for a particular kind of content; "
"it would be simple to assert those rights, and to renew that assertion at "
"the appropriate time."
msgstr ""

#. type: Content of: <book><chapter><section><section><title>
#: freeculture.xml:13709
msgid "2. Shorter Terms"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13711
msgid ""
"The term of copyright has gone from fourteen years to ninety-five years for "
"corporate authors, and life of the author plus seventy years for natural "
"authors."
msgstr ""

#.  f3. 
#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:13724
msgid ""
"\"A Radical Rethink,\" <citetitle>Economist</citetitle>, 366:8308 (25 "
"January 2003): 15, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #74</ulink>."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13716
msgid ""
"In <citetitle>The Future of Ideas</citetitle>, I proposed a "
"seventy-five-year term, granted in five-year increments with a requirement "
"of renewal every five years.  That seemed radical enough at the time. But "
"after we lost <citetitle>Eldred</citetitle> "
"v. <citetitle>Ashcroft</citetitle>, the proposals became even more "
"radical. <citetitle>The Economist</citetitle> endorsed a proposal for a "
"fourteen-year copyright term.<placeholder type=\"footnote\" id=\"0\"/> "
"Others have proposed tying the term to the term for patents."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13731
msgid ""
"I agree with those who believe that we need a radical change in copyright's "
"term. But whether fourteen years or seventy-five, there are four principles "
"that are important to keep in mind about copyright terms."
msgstr ""

#.  (1) 
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:13739
msgid ""
"<emphasis>Keep it short:</emphasis> The term should be as long as necessary "
"to give incentives to create, but no longer. If it were tied to very strong "
"protections for authors (so authors were able to reclaim rights from "
"publishers), rights to the same work (not derivative works) might be "
"extended further. The key is not to tie the work up with legal regulations "
"when it no longer benefits an author."
msgstr ""

#.  (2) 
#.  PAGE BREAK 298 
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:13748
msgid ""
"<emphasis>Keep it simple:</emphasis> The line between the public domain and "
"protected content must be kept clear. Lawyers like the fuzziness of \"fair "
"use,\" and the distinction between \"ideas\" and \"expression.\" That kind "
"of law gives them lots of work. But our framers had a simpler idea in mind: "
"protected versus unprotected.  The value of short terms is that there is "
"little need to build exceptions into copyright when the term itself is kept "
"short. A clear and active \"lawyer-free zone\" makes the complexities of "
"\"fair use\" and \"idea/expression\" less necessary to navigate."
msgstr ""

#.  f4. 
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para><footnote><para>
#: freeculture.xml:13769
msgid ""
"Department of Veterans Affairs, Veteran's Application for Compensation "
"and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001), available at "
"<ulink url=\"http://free-culture.cc/notes/\">link #75</ulink>."
msgstr ""

#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para><indexterm><primary>
#: freeculture.xml:13777
msgid "veterans' pensions"
msgstr ""

#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:13761
msgid ""
"<emphasis>Keep it alive:</emphasis> Copyright should have to be renewed.  "
"Especially if the maximum term is long, the copyright owner should be "
"required to signal periodically that he wants the protection continued. This "
"need not be an onerous burden, but there is no reason this monopoly "
"protection has to be granted for free. On average, it takes ninety minutes "
"for a veteran to apply for a pension.<placeholder type=\"footnote\" "
"id=\"0\"/> If we make veterans suffer that burden, I don't see why we "
"couldn't require authors to spend ten minutes every fifty years to file a "
"single form.  <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#.  (4) 
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:13781
msgid ""
"<emphasis>Keep it prospective:</emphasis> Whatever the term of copyright "
"should be, the clearest lesson that economists teach is that a term once "
"given should not be extended. It might have been a mistake in 1923 for the "
"law to offer authors only a fifty-six-year term. I don't think so, but it's "
"possible. If it was a mistake, then the consequence was that we got fewer "
"authors to create in 1923 than we otherwise would have. But we can't correct "
"that mistake today by increasing the term. No matter what we do today, we "
"will not increase the number of authors who wrote in 1923. Of course, we can "
"increase the reward that those who write now get (or alternatively, increase "
"the copyright burden that smothers many works that are today invisible). But "
"increasing their reward will not increase their creativity in 1923.  What's "
"not done is not done, and there's nothing we can do about that now."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13797
msgid ""
"These changes together should produce an <emphasis>average</emphasis> "
"copyright term that is much shorter than the current term. Until 1976, the "
"average term was just 32.2 years. We should be aiming for the same."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13803
msgid ""
"No doubt the extremists will call these ideas \"radical.\" (After all, I "
"call them \"extremists.\") But again, the term I recommended was longer than "
"the term under Richard Nixon. How \"radical\" can it be to ask for a more "
"generous copyright law than Richard Nixon presided over?"
msgstr ""

#. type: Content of: <book><chapter><section><section><title>
#: freeculture.xml:13813
msgid "3. Free Use Vs. Fair Use"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13815
msgid ""
"As I observed at the beginning of this book, property law originally granted "
"property owners the right to control their property from the ground to the "
"heavens. The airplane came along. The scope of property rights quickly "
"changed. There was no fuss, no constitutional challenge.  It made no sense "
"anymore to grant that much control, given the emergence of that new "
"technology."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13823
msgid ""
"Our Constitution gives Congress the power to give authors \"exclusive "
"right\" to \"their writings.\" Congress has given authors an exclusive right "
"to \"their writings\" plus any derivative writings (made by others) that are "
"sufficiently close to the author's original work. Thus, if I write a book, "
"and you base a movie on that book, I have the power to deny you the right to "
"release that movie, even though that movie is not \"my writing.\""
msgstr ""

#.  f5. 
#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:13836
msgid ""
"Benjamin Kaplan, <citetitle>An Unhurried View of Copyright</citetitle> (New "
"York: Columbia University Press, 1967), 32."
msgstr ""

#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
#: freeculture.xml:13842
msgid "Kaplan, Benjamin"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13832
msgid ""
"Congress granted the beginnings of this right in 1870, when it expanded the "
"exclusive right of copyright to include a right to control translations and "
"dramatizations of a work.<placeholder type=\"footnote\" id=\"0\"/> The "
"courts have expanded it slowly through judicial interpretation ever "
"since. This expansion has been commented upon by one of the law's greatest "
"judges, Judge Benjamin Kaplan.  <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#.  f6. 
#. type: Content of: <book><chapter><section><section><blockquote><para><footnote><para>
#: freeculture.xml:13850
msgid "Ibid., 56."
msgstr ""

#. type: Content of: <book><chapter><section><section><blockquote><para>
#: freeculture.xml:13846
msgid ""
"So inured have we become to the extension of the monopoly to a large range "
"of so-called derivative works, that we no longer sense the oddity of "
"accepting such an enlargement of copyright while yet intoning the "
"abracadabra of idea and expression.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13855
msgid ""
"I think it's time to recognize that there are airplanes in this field and "
"the expansiveness of these rights of derivative use no longer make "
"sense. More precisely, they don't make sense for the period of time that a "
"copyright runs. And they don't make sense as an amorphous grant.  Consider "
"each limitation in turn."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13862
msgid ""
"<emphasis>Term:</emphasis> If Congress wants to grant a derivative right, "
"then that right should be for a much shorter term. It makes sense to protect "
"John Grisham's right to sell the movie rights to his latest novel (or at "
"least I'm willing to assume it does); but it does not make sense for that "
"right to run for the same term as the underlying copyright. The derivative "
"right could be important in inducing creativity; it is not important long "
"after the creative work is done.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13875
msgid ""
"<emphasis>Scope:</emphasis> Likewise should the scope of derivative rights "
"be narrowed.  Again, there are some cases in which derivative rights are "
"important.  Those should be specified. But the law should draw clear lines "
"around regulated and unregulated uses of copyrighted material. When all "
"\"reuse\" of creative material was within the control of businesses, perhaps "
"it made sense to require lawyers to negotiate the lines. It no longer makes "
"sense for lawyers to negotiate the lines. Think about all the creative "
"possibilities that digital technologies enable; now imagine pouring molasses "
"into the machines. That's what this general requirement of permission does "
"to the creative process. Smothers it."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13888
msgid ""
"This was the point that Alben made when describing the making of the Clint "
"Eastwood CD. While it makes sense to require negotiation for foreseeable "
"derivative rights&mdash;turning a book into a movie, or a poem into a "
"musical score&mdash;it doesn't make sense to require negotiation for the "
"unforeseeable. Here, a statutory right would make much more sense."
msgstr ""

#. type: Content of: <book><chapter><section><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:13904
msgid "Goldstein, Paul"
msgstr ""

#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:13902
msgid ""
"Paul Goldstein, <citetitle>Copyright's Highway: From Gutenberg to the "
"Celestial Jukebox</citetitle> (Stanford: Stanford University Press, 2003), "
"187&ndash;216.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13896
msgid ""
"In each of these cases, the law should mark the uses that are protected, and "
"the presumption should be that other uses are not protected.  This is the "
"reverse of the recommendation of my colleague Paul Goldstein.<placeholder "
"type=\"footnote\" id=\"0\"/> His view is that the law should be written so "
"that expanded protections follow expanded uses."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13910
msgid ""
"Goldstein's analysis would make perfect sense if the cost of the legal "
"system were small. But as we are currently seeing in the context of the "
"Internet, the uncertainty about the scope of protection, and the incentives "
"to protect existing architectures of revenue, combined with a strong "
"copyright, weaken the process of innovation."
msgstr ""

#.  PAGE BREAK 301 
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13917
msgid ""
"The law could remedy this problem either by removing protection beyond the "
"part explicitly drawn or by granting reuse rights upon certain statutory "
"conditions. Either way, the effect would be to free a great deal of culture "
"to others to cultivate. And under a statutory rights regime, that reuse "
"would earn artists more income."
msgstr ""

#. type: Content of: <book><chapter><section><section><title>
#: freeculture.xml:13927
msgid "4. Liberate the Music&mdash;Again"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13929
msgid ""
"The battle that got this whole war going was about music, so it wouldn't be "
"fair to end this book without addressing the issue that is, to most people, "
"most pressing&mdash;music. There is no other policy issue that better "
"teaches the lessons of this book than the battles around the sharing of "
"music."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13936
msgid ""
"The appeal of file-sharing music was the crack cocaine of the Internet's "
"growth. It drove demand for access to the Internet more powerfully than any "
"other single application. It was the Internet's killer app&mdash;possibly in "
"two senses of that word. It no doubt was the application that drove demand "
"for bandwidth. It may well be the application that drives demand for "
"regulations that in the end kill innovation on the network."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13945
msgid ""
"The aim of copyright, with respect to content in general and music in "
"particular, is to create the incentives for music to be composed, performed, "
"and, most importantly, spread. The law does this by giving an exclusive "
"right to a composer to control public performances of his work, and to a "
"performing artist to control copies of her performance."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13952
msgid ""
"File-sharing networks complicate this model by enabling the spread of "
"content for which the performer has not been paid. But of course, that's not "
"all the file-sharing networks do. As I described in chapter <xref "
"xrefstyle=\"select: labelnumber\" linkend=\"piracy\"/>, they enable four "
"different kinds of sharing:"
msgstr ""

#.  A. 
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:13961
msgid ""
"There are some who are using sharing networks as substitutes for purchasing "
"CDs."
msgstr ""

#.  B. 
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:13966
msgid ""
"There are also some who are using sharing networks to sample, on the way to "
"purchasing CDs."
msgstr ""

#.  PAGE BREAK 302 
#.  C. 
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:13972
msgid ""
"There are many who are using file-sharing networks to get access to content "
"that is no longer sold but is still under copyright or that would have been "
"too cumbersome to buy off the Net."
msgstr ""

#.  D. 
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:13978
msgid ""
"There are many who are using file-sharing networks to get access to content "
"that is not copyrighted or to get access that the copyright owner plainly "
"endorses."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13984
msgid ""
"Any reform of the law needs to keep these different uses in focus. It must "
"avoid burdening type D even if it aims to eliminate type A. The eagerness "
"with which the law aims to eliminate type A, moreover, should depend upon "
"the magnitude of type B. As with VCRs, if the net effect of sharing is "
"actually not very harmful, the need for regulation is significantly "
"weakened."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:13992
msgid ""
"As I said in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"piracy\"/>, the actual harm caused by sharing is controversial.  "
"For the purposes of this chapter, however, I assume the harm is real. I "
"assume, in other words, that type A sharing is significantly greater than "
"type B, and is the dominant use of sharing networks."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14000
msgid ""
"Nonetheless, there is a crucial fact about the current technological context "
"that we must keep in mind if we are to understand how the law should "
"respond."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14005
msgid ""
"Today, file sharing is addictive. In ten years, it won't be. It is addictive "
"today because it is the easiest way to gain access to a broad range of "
"content.  It won't be the easiest way to get access to a broad range of "
"content in ten years. Today, access to the Internet is cumbersome and "
"slow&mdash;we in the United States are lucky to have broadband service at "
"1.5 MBs, and very rarely do we get service at that speed both up and "
"down. Although wireless access is growing, most of us still get access "
"across wires. Most only gain access through a machine with a keyboard. The "
"idea of the always on, always connected Internet is mainly just an idea."
msgstr ""

#.  PAGE BREAK 303 
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14017
msgid ""
"But it will become a reality, and that means the way we get access to the "
"Internet today is a technology in transition. Policy makers should not make "
"policy on the basis of technology in transition. They should make policy on "
"the basis of where the technology is going. The question should not be, how "
"should the law regulate sharing in this world? The question should be, what "
"law will we require when the network becomes the network it is clearly "
"becoming? That network is one in which every machine with electricity is "
"essentially on the Net; where everywhere you are&mdash;except maybe the "
"desert or the Rockies&mdash;you can instantaneously be connected to the "
"Internet. Imagine the Internet as ubiquitous as the best cell-phone service, "
"where with the flip of a device, you are connected."
msgstr ""

#.  f8. 
#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:14050
msgid ""
"See, for example, \"Music Media Watch,\" The J@pan Inc. Newsletter, 3 April "
"2002, available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#76</ulink>."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14032
msgid ""
"In that world, it will be extremely easy to connect to services that give "
"you access to content on the fly&mdash;such as Internet radio, content that "
"is streamed to the user when the user demands. Here, then, is the critical "
"point: When it is <emphasis>extremely</emphasis> easy to connect to services "
"that give access to content, it will be <emphasis>easier</emphasis> to "
"connect to services that give you access to content than it will be to "
"download and store content <emphasis>on the many devices you will have for "
"playing content</emphasis>. It will be easier, in other words, to subscribe "
"than it will be to be a database manager, as everyone in the "
"download-sharing world of Napster-like technologies essentially is. Content "
"services will compete with content sharing, even if the services charge "
"money for the content they give access to. Already cell-phone services in "
"Japan offer music (for a fee) streamed over cell phones (enhanced with plugs "
"for headphones). The Japanese are paying for this content even though "
"\"free\" content is available in the form of MP3s across the "
"Web.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 304 
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14057
msgid ""
"This point about the future is meant to suggest a perspective on the "
"present: It is emphatically temporary. The \"problem\" with file "
"sharing&mdash;to the extent there is a real problem&mdash;is a problem that "
"will increasingly disappear as it becomes easier to connect to the "
"Internet.  And thus it is an extraordinary mistake for policy makers today "
"to be \"solving\" this problem in light of a technology that will be gone "
"tomorrow.  The question should not be how to regulate the Internet to "
"eliminate file sharing (the Net will evolve that problem away). The question "
"instead should be how to assure that artists get paid, during this "
"transition between twentieth-century models for doing business and "
"twenty-first-century technologies."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14073
msgid ""
"The answer begins with recognizing that there are different \"problems\" "
"here to solve. Let's start with type D content&mdash;uncopyrighted content "
"or copyrighted content that the artist wants shared. The \"problem\" with "
"this content is to make sure that the technology that would enable this kind "
"of sharing is not rendered illegal. You can think of it this way: Pay phones "
"are used to deliver ransom demands, no doubt.  But there are many who need "
"to use pay phones who have nothing to do with ransoms. It would be wrong to "
"ban pay phones in order to eliminate kidnapping."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14084
msgid ""
"Type C content raises a different \"problem.\" This is content that was, at "
"one time, published and is no longer available. It may be unavailable "
"because the artist is no longer valuable enough for the record label he "
"signed with to carry his work. Or it may be unavailable because the work is "
"forgotten. Either way, the aim of the law should be to facilitate the access "
"to this content, ideally in a way that returns something to the artist."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14093
msgid ""
"Again, the model here is the used book store. Once a book goes out of print, "
"it may still be available in libraries and used book stores. But libraries "
"and used book stores don't pay the copyright owner when someone reads or "
"buys an out-of-print book. That makes total sense, of course, since any "
"other system would be so burdensome as to eliminate the possibility of used "
"book stores' existing. But from the author's perspective, this \"sharing\" "
"of his content without his being compensated is less than ideal."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14103
msgid ""
"The model of used book stores suggests that the law could simply deem "
"out-of-print music fair game. If the publisher does not make copies of the "
"music available for sale, then commercial and noncommercial providers would "
"be free, under this rule, to \"share\" that content, even though the sharing "
"involved making a copy. The copy here would be incidental to the trade; in a "
"context where commercial publishing has ended, trading music should be as "
"free as trading books."
msgstr ""

#.  PAGE BREAK 305 
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14114
msgid ""
"Alternatively, the law could create a statutory license that would ensure "
"that artists get something from the trade of their work. For example, if the "
"law set a low statutory rate for the commercial sharing of content that was "
"not offered for sale by a commercial publisher, and if that rate were "
"automatically transferred to a trust for the benefit of the artist, then "
"businesses could develop around the idea of trading this content, and "
"artists would benefit from this trade."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14124
msgid ""
"This system would also create an incentive for publishers to keep works "
"available commercially. Works that are available commercially would not be "
"subject to this license. Thus, publishers could protect the right to charge "
"whatever they want for content if they kept the work commercially "
"available. But if they don't keep it available, and instead, the computer "
"hard disks of fans around the world keep it alive, then any royalty owed for "
"such copying should be much less than the amount owed a commercial "
"publisher."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14134
msgid ""
"The hard case is content of types A and B, and again, this case is hard only "
"because the extent of the problem will change over time, as the technologies "
"for gaining access to content change. The law's solution should be as "
"flexible as the problem is, understanding that we are in the middle of a "
"radical transformation in the technology for delivering and accessing "
"content."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14142
msgid ""
"So here's a solution that will at first seem very strange to both sides in "
"this war, but which upon reflection, I suggest, should make some sense."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14146
msgid ""
"Stripped of the rhetoric about the sanctity of property, the basic claim of "
"the content industry is this: A new technology (the Internet)  has harmed a "
"set of rights that secure copyright. If those rights are to be protected, "
"then the content industry should be compensated for that harm. Just as the "
"technology of tobacco harmed the health of millions of Americans, or the "
"technology of asbestos caused grave illness to thousands of miners, so, too, "
"has the technology of digital networks harmed the interests of the content "
"industry."
msgstr ""

#.  PAGE BREAK 306 
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14157
msgid ""
"I love the Internet, and so I don't like likening it to tobacco or "
"asbestos.  But the analogy is a fair one from the perspective of the law.  "
"And it suggests a fair response: Rather than seeking to destroy the "
"Internet, or the p2p technologies that are currently harming content "
"providers on the Internet, we should find a relatively simple way to "
"compensate those who are harmed."
msgstr ""

#. type: Content of: <book><chapter><section><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:14202
msgid "Fisher, William"
msgstr ""

#. type: Content of: <book><chapter><section><section><para><indexterm><primary>
#: freeculture.xml:14204 freeculture.xml:14230
msgid "Promises to Keep (Fisher)"
msgstr ""

#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:14169
msgid ""
"William Fisher, <citetitle>Digital Music: Problems and "
"Possibilities</citetitle> (last revised: 10 October 2000), available at "
"<ulink url=\"http://free-culture.cc/notes/\">link #77</ulink>; William "
"Fisher, <citetitle>Promises to Keep: Technology, Law, and the Future of "
"Entertainment</citetitle> (forthcoming) (Stanford: Stanford University "
"Press, 2004), ch. 6, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #78</ulink>. Professor Netanel "
"has proposed a related idea that would exempt noncommercial sharing from the "
"reach of copyright and would establish compensation to artists to balance "
"any loss. See Neil Weinstock Netanel, \"Impose a Noncommercial Use Levy to "
"Allow Free P2P File Sharing,\" available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #79</ulink>. For other proposals, "
"see Lawrence Lessig, \"Who's Holding Back Broadband?\" <citetitle>Washington "
"Post</citetitle>, 8 January 2002, A17; Philip S. Corwin on behalf of Sharman "
"Networks, A Letter to Senator Joseph R. Biden, Jr., Chairman of the Senate "
"Foreign Relations Committee, 26 February 2002, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #80</ulink>; Serguei Osokine, "
"<citetitle>A Quick Case for Intellectual Property Use Fee "
"(IPUF)</citetitle>, 3 March 2002, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #81</ulink>; Jefferson Graham, "
"\"Kazaa, Verizon Propose to Pay Artists Directly,\" <citetitle>USA "
"Today</citetitle>, 13 May 2002, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #82</ulink>; Steven M. Cherry, "
"\"Getting Copyright Right,\" IEEE Spectrum Online, 1 July 2002, available at "
"<ulink url=\"http://free-culture.cc/notes/\">link #83</ulink>; Declan "
"McCullagh, \"Verizon's Copyright Campaign,\" CNET News.com, 27 August 2002, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #84</ulink>.  "
"Fisher's proposal is very similar to Richard Stallman's proposal for "
"DAT. Unlike Fisher's, Stallman's proposal would not pay artists directly "
"proportionally, though more popular artists would get more than the less "
"popular. As is typical with Stallman, his proposal predates the current "
"debate by about a decade. See <ulink "
"url=\"http://free-culture.cc/notes/\">link #85</ulink>.  <placeholder "
"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> "
"<placeholder type=\"indexterm\" id=\"2\"/>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14165
msgid ""
"The idea would be a modification of a proposal that has been floated by "
"Harvard law professor William Fisher.<placeholder type=\"footnote\" "
"id=\"0\"/> Fisher suggests a very clever way around the current impasse of "
"the Internet. Under his plan, all content capable of digital transmission "
"would (1) be marked with a digital watermark (don't worry about how easy it "
"is to evade these marks; as you'll see, there's no incentive to evade "
"them). Once the content is marked, then entrepreneurs would develop (2) "
"systems to monitor how many items of each content were distributed. On the "
"basis of those numbers, then (3) artists would be compensated. The "
"compensation would be paid for by (4) an appropriate tax."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14217
msgid ""
"Fisher's proposal is careful and comprehensive. It raises a million "
"questions, most of which he answers well in his upcoming book, "
"<citetitle>Promises to Keep</citetitle>. The modification that I would make "
"is relatively simple: Fisher imagines his proposal replacing the existing "
"copyright system.  I imagine it complementing the existing system. The aim "
"of the proposal would be to facilitate compensation to the extent that harm "
"could be shown. This compensation would be temporary, aimed at facilitating "
"a transition between regimes. And it would require renewal after a period of "
"years. If it continues to make sense to facilitate free exchange of content, "
"supported through a taxation system, then it can be continued. If this form "
"of protection is no longer necessary, then the system could lapse into the "
"old system of controlling access.  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 307 
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14233
msgid ""
"Fisher would balk at the idea of allowing the system to lapse. His aim is "
"not just to ensure that artists are paid, but also to ensure that the system "
"supports the widest range of \"semiotic democracy\" possible. But the aims "
"of semiotic democracy would be satisfied if the other changes I described "
"were accomplished&mdash;in particular, the limits on derivative uses. A "
"system that simply charges for access would not greatly burden semiotic "
"democracy if there were few limitations on what one was allowed to do with "
"the content itself."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14246
msgid ""
"No doubt it would be difficult to calculate the proper measure of \"harm\" "
"to an industry. But the difficulty of making that calculation would be "
"outweighed by the benefit of facilitating innovation. This background system "
"to compensate would also not need to interfere with innovative proposals "
"such as Apple's MusicStore. As experts predicted when Apple launched the "
"MusicStore, it could beat \"free\" by being easier than free is. This has "
"proven correct: Apple has sold millions of songs at even the very high price "
"of 99 cents a song. (At 99 cents, the cost is the equivalent of a per-song "
"CD price, though the labels have none of the costs of a CD to pay.) Apple's "
"move was countered by Real Networks, offering music at just 79 cents a "
"song. And no doubt there will be a great deal of competition to offer and "
"sell music on-line."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14261
msgid ""
"This competition has already occurred against the background of \"free\" "
"music from p2p systems. As the sellers of cable television have known for "
"thirty years, and the sellers of bottled water for much more than that, "
"there is nothing impossible at all about \"competing with free.\" Indeed, if "
"anything, the competition spurs the competitors to offer new and better "
"products. This is precisely what the competitive market was to be "
"about. Thus in Singapore, though piracy is rampant, movie theaters are often "
"luxurious&mdash;with \"first class\" seats, and meals served while you watch "
"a movie&mdash;as they struggle and succeed in finding ways to compete with "
"\"free.\""
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14273
msgid ""
"This regime of competition, with a backstop to assure that artists don't "
"lose, would facilitate a great deal of innovation in the delivery of "
"content. That competition would continue to shrink type A sharing. It would "
"inspire an extraordinary range of new innovators&mdash;ones who would have a "
"right to the content, and would no longer fear the uncertain and "
"barbarically severe punishments of the law."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14282
msgid "In summary, then, my proposal is this:"
msgstr ""

#.  PAGE BREAK 308 
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14287
msgid ""
"The Internet is in transition. We should not be regulating a technology in "
"transition. We should instead be regulating to minimize the harm to "
"interests affected by this technological change, while enabling, and "
"encouraging, the most efficient technology we can create."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14294
msgid "We can minimize that harm while maximizing the benefit to innovation by"
msgstr ""

#.  1. 
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:14300
msgid "guaranteeing the right to engage in type D sharing;"
msgstr ""

#.  2. 
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:14304
msgid ""
"permitting noncommercial type C sharing without liability, and commercial "
"type C sharing at a low and fixed rate set by statute;"
msgstr ""

#.  3. 
#. type: Content of: <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:14310
msgid ""
"while in this transition, taxing and compensating for type A sharing, to the "
"extent actual harm is demonstrated."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14315
msgid ""
"But what if \"piracy\" doesn't disappear? What if there is a competitive "
"market providing content at a low cost, but a significant number of "
"consumers continue to \"take\" content for nothing? Should the law do "
"something then?"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14321
msgid ""
"Yes, it should. But, again, what it should do depends upon how the facts "
"develop. These changes may not eliminate type A sharing. But the real issue "
"is not whether it eliminates sharing in the abstract.  The real issue is its "
"effect on the market. Is it better (a) to have a technology that is 95 "
"percent secure and produces a market of size <citetitle>x</citetitle>, or "
"(b) to have a technology that is 50 percent secure but produces a market of "
"five times <citetitle>x</citetitle>? Less secure might produce more "
"unauthorized sharing, but it is likely to also produce a much bigger market "
"in authorized sharing. The most important thing is to assure artists' "
"compensation without breaking the Internet. Once that's assured, then it may "
"well be appropriate to find ways to track down the petty pirates."
msgstr ""

#.  PAGE BREAK 309 
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14335
msgid ""
"But we're a long way away from whittling the problem down to this subset of "
"type A sharers. And our focus until we're there should not be on finding "
"ways to break the Internet. Our focus until we're there should be on how to "
"make sure the artists are paid, while protecting the space for innovation "
"and creativity that the Internet is."
msgstr ""

#. type: Content of: <book><chapter><section><section><title>
#: freeculture.xml:14346
msgid "5. Fire Lots of Lawyers"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14348
msgid ""
"I'm a lawyer. I make lawyers for a living. I believe in the law. I believe "
"in the law of copyright. Indeed, I have devoted my life to working in law, "
"not because there are big bucks at the end but because there are ideals at "
"the end that I would love to live."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14354
msgid ""
"Yet much of this book has been a criticism of lawyers, or the role lawyers "
"have played in this debate. The law speaks to ideals, but it is my view that "
"our profession has become too attuned to the client. And in a world where "
"the rich clients have one strong view, the unwillingness of the profession "
"to question or counter that one strong view queers the law."
msgstr ""

#.  f10. 
#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:14371
msgid ""
"Lawrence Lessig, \"Copyright's First Amendment\" (Melville B. Nimmer "
"Memorial Lecture), <citetitle>UCLA Law Review</citetitle> 48 (2001): 1057, "
"1069&ndash;70."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14362
msgid ""
"The evidence of this bending is compelling. I'm attacked as a \"radical\" by "
"many within the profession, yet the positions that I am advocating are "
"precisely the positions of some of the most moderate and significant figures "
"in the history of this branch of the law. Many, for example, thought crazy "
"the challenge that we brought to the Copyright Term Extension Act. Yet just "
"thirty years ago, the dominant scholar and practitioner in the field of "
"copyright, Melville Nimmer, thought it obvious.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14377
msgid ""
"However, my criticism of the role that lawyers have played in this debate is "
"not just about a professional bias. It is more importantly about our failure "
"to actually reckon the costs of the law."
msgstr ""

#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:14387
msgid ""
"A good example is the work of Professor Stan Liebowitz. Liebowitz is to be "
"commended for his careful review of data about infringement, leading him to "
"question his own publicly stated position&mdash;twice. He initially "
"predicted that downloading would substantially harm the industry. He then "
"revised his view in light of the data, and he has since revised his view "
"again.  Compare Stan J. Liebowitz, <citetitle>Rethinking the Network "
"Economy: The True Forces That Drive the Digital Marketplace</citetitle> (New "
"York: Amacom, 2002), (reviewing his original view but expressing skepticism) "
"with Stan J.  Liebowitz, \"Will MP3s Annihilate the Record Industry?\" "
"working paper, June 2003, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #86</ulink>.  Liebowitz's careful "
"analysis is extremely valuable in estimating the effect of file-sharing "
"technology. In my view, however, he underestimates the costs of the legal "
"system. See, for example, <citetitle>Rethinking</citetitle>, 174&ndash;76.  "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14382
msgid ""
"Economists are supposed to be good at reckoning costs and benefits.  But "
"more often than not, economists, with no clue about how the legal system "
"actually functions, simply assume that the transaction costs of the legal "
"system are slight.<placeholder type=\"footnote\" id=\"0\"/> They see a "
"system that has been around for hundreds of years, and they assume it works "
"the way their elementary school civics class taught them it works."
msgstr ""

#.  PAGE BREAK 310 
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14411
msgid ""
"But the legal system doesn't work. Or more accurately, it doesn't work for "
"anyone except those with the most resources. Not because the system is "
"corrupt. I don't think our legal system (at the federal level, at least) is "
"at all corrupt. I mean simply because the costs of our legal system are so "
"astonishingly high that justice can practically never be done."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14419
msgid ""
"These costs distort free culture in many ways. A lawyer's time is billed at "
"the largest firms at more than $400 per hour. How much time should such a "
"lawyer spend reading cases carefully, or researching obscure strands of "
"authority? The answer is the increasing reality: very little.  The law "
"depended upon the careful articulation and development of doctrine, but the "
"careful articulation and development of legal doctrine depends upon careful "
"work. Yet that careful work costs too much, except in the most high-profile "
"and costly cases."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14429
msgid ""
"The costliness and clumsiness and randomness of this system mock our "
"tradition. And lawyers, as well as academics, should consider it their duty "
"to change the way the law works&mdash;or better, to change the law so that "
"it works. It is wrong that the system works well only for the top 1 percent "
"of the clients. It could be made radically more efficient, and inexpensive, "
"and hence radically more just."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14437
msgid ""
"But until that reform is complete, we as a society should keep the law away "
"from areas that we know it will only harm. And that is precisely what the "
"law will too often do if too much of our culture is left to its review."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14443
msgid ""
"Think about the amazing things your kid could do or make with digital "
"technology&mdash;the film, the music, the Web page, the blog. Or think about "
"the amazing things your community could facilitate with digital "
"technology&mdash;a wiki, a barn raising, activism to change something.  "
"Think about all those creative things, and then imagine cold molasses poured "
"onto the machines. This is what any regime that requires permission "
"produces. Again, this is the reality of Brezhnev's Russia."
msgstr ""

#.  PAGE BREAK 311 
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14452
msgid ""
"The law should regulate in certain areas of culture&mdash;but it should "
"regulate culture only where that regulation does good. Yet lawyers rarely "
"test their power, or the power they promote, against this simple pragmatic "
"question: \"Will it do good?\" When challenged about the expanding reach of "
"the law, the lawyer answers, \"Why not?\""
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14461
msgid ""
"We should ask, \"Why?\" Show me why your regulation of culture is "
"needed. Show me how it does good. And until you can show me both, keep your "
"lawyers away."
msgstr ""

#. type: Content of: <book><chapter><title>
#: freeculture.xml:14470
msgid "NOTES"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:14472
msgid ""
"Throughout this text, there are references to links on the World Wide "
"Web. As anyone who has tried to use the Web knows, these links can be highly "
"unstable. I have tried to remedy the instability by redirecting readers to "
"the original source through the Web site associated with this book. For each "
"link below, you can go to http://free-culture.cc/notes and locate the "
"original source by clicking on the number after the # sign. If the original "
"link remains alive, you will be redirected to that link. If the original "
"link has disappeared, you will be redirected to an appropriate reference for "
"the material."
msgstr ""

#. type: Content of: <book><chapter><title>
#: freeculture.xml:14487
msgid "ACKNOWLEDGMENTS"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:14489
msgid ""
"This book is the product of a long and as yet unsuccessful struggle that "
"began when I read of Eric Eldred's war to keep books free. Eldred's work "
"helped launch a movement, the free culture movement, and it is to him that "
"this book is dedicated."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:14495
msgid ""
"I received guidance in various places from friends and academics, including "
"Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, Mark Rose, and "
"Kathleen Sullivan. And I received correction and guidance from many amazing "
"students at Stanford Law School and Stanford University. They included "
"Andrew B. Coan, John Eden, James P. Fellers, Christopher Guzelian, Erica "
"Goldberg, Robert Hallman, Andrew Harris, Matthew Kahn, Brian Link, Ohad "
"Mayblum, Alina Ng, and Erica Platt. I am particularly grateful to Catherine "
"Crump and Harry Surden, who helped direct their research, and to Laura "
"Lynch, who brilliantly managed the army that they assembled, and provided "
"her own critical eye on much of this."
msgstr ""

#.  PAGE BREAK 337 
#. type: Content of: <book><chapter><para>
#: freeculture.xml:14508
msgid ""
"Yuko Noguchi helped me to understand the laws of Japan as well as its "
"culture. I am thankful to her, and to the many in Japan who helped me "
"prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki, Michihiro "
"Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro Yonezawa. I am "
"thankful as well as to Professor Nobuhiro Nakayama, and the Tokyo University "
"Business Law Center, for giving me the chance to spend time in Japan, and to "
"Tadashi Shiraishi and Kiyokazu Yamagami for their generous help while I was "
"there."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:14519
msgid ""
"These are the traditional sorts of help that academics regularly draw "
"upon. But in addition to them, the Internet has made it possible to receive "
"advice and correction from many whom I have never even met. Among those who "
"have responded with extremely helpful advice to requests on my blog about "
"the book are Dr. Mohammad Al-Ubaydli, David Gerstein, and Peter DiMauro, as "
"well as a long list of those who had specific ideas about ways to develop my "
"argument. They included Richard Bondi, Steven Cherry, David Coe, Nik "
"Cubrilovic, Bob Devine, Charles Eicher, Thomas Guida, Elihu M. Gerson, "
"Jeremy Hunsinger, Vaughn Iverson, John Karabaic, Jeff Keltner, James "
"Lindenschmidt, K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan "
"McMullen, Fred Norton, John Pormann, Pedro A. D.  Rezende, Shabbir Safdar, "
"Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker, Chris Smith, "
"Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt Wasserman, Miljenko "
"Williams, \"Wink,\" Roger Wood, \"Ximmbo da Jazz,\" and Richard Yanco. (I "
"apologize if I have missed anyone; with computers come glitches, and a crash "
"of my e-mail system meant I lost a bunch of great replies.)"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:14539
msgid ""
"Richard Stallman and Michael Carroll each read the whole book in draft, and "
"each provided extremely helpful correction and advice.  Michael helped me to "
"see more clearly the significance of the regulation of derivitive works. And "
"Richard corrected an embarrassingly large number of errors. While my work is "
"in part inspired by Stallman's, he does not agree with me in important "
"places throughout this book."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:14548
msgid ""
"Finally, and forever, I am thankful to Bettina, who has always insisted that "
"there would be unending happiness away from these battles, and who has "
"always been right. This slow learner is, as ever, grateful for her perpetual "
"patience and love."
msgstr ""