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20 <title>Free Culture
</title>
22 <abbrev>"freeculture"</abbrev>
24 <subtitle>HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN
25 CULTURE AND CONTROL CREATIVITY
</subtitle>
27 <pubdate>2004-
03-
25</pubdate>
29 <releaseinfo>Version
2004-
02-
10</releaseinfo>
33 <firstname>Lawrence
</firstname>
34 <surname>Lessig
</surname>
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41 <subjectset scheme=
"libraryofcongress">
43 <subjectterm>Intellectual property
—United States.
</subjectterm>
46 <subjectterm>Mass media
—United States.
</subjectterm>
49 <subjectterm>Technological innovations
—United States.
</subjectterm>
52 <subjectterm>Art
—United States.
</subjectterm>
58 <publishername>The Penguin Press
</publishername>
59 <address><city>New York
</city></address>
64 <holder>Lawrence Lessig
</holder>
70 <imagedata fileref=
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73 <imagedata fileref=
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76 <phrase>Creative Commons, Some rights reserved
</phrase>
82 This version of
<citetitle>Free Culture
</citetitle> is licensed under
83 a Creative Commons license. This license permits non-commercial use of
84 this work, so long as attribution is given. For more information
85 about the license, click the icon above, or visit
86 <ulink url=
"http://creativecommons.org/licenses/by-nc/1.0/">http://creativecommons.org/licenses/by-nc/
1.0/
</ulink>
91 <title>ABOUT THE AUTHOR
</title>
94 (
<ulink url=
"http://www.lessig.org">http://www.lessig.org
</ulink>),
95 professor of law and a John A. Wilson Distinguished Faculty Scholar
96 at Stanford Law School, is founder of the Stanford Center for Internet
97 and Society and is chairman of the Creative Commons
98 (
<ulink url=
"http://creativecommons.org">http://creativecommons.org
</ulink>).
99 The author of The Future of Ideas (Random House,
2001) and Code: And
100 Other Laws of Cyberspace (Basic Books,
1999), Lessig is a member of
101 the boards of the Public Library of Science, the Electronic Frontier
102 Foundation, and Public Knowledge. He was the winner of the Free
103 Software Foundation's Award for the Advancement of Free Software,
104 twice listed in BusinessWeek's "e.biz
25," and named one of Scientific
105 American's "
50 visionaries." A graduate of the University of
106 Pennsylvania, Cambridge University, and Yale Law School, Lessig
107 clerked for Judge Richard Posner of the U.S. Seventh Circuit Court of
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130 <biblioid class=
"isbn">1-
59420-
006-
8</biblioid>
133 http://catalog.loc.gov/cgi-bin/Pwebrecon.cgi?v3=1&DB=local&CMD=010a+2003063276&CNT=10+records+per+page
135 <biblioid class=
"libraryofcongress">2003063276</biblioid>
139 <dedication id=
"salespoints">
142 You can buy a copy of this book by clicking on one of the links below:
144 <itemizedlist mark=
"number" spacing=
"compact">
145 <listitem><para><ulink url=
"http://www.amazon.com/">Amazon
</ulink></para></listitem>
146 <listitem><para><ulink url=
"http://www.barnesandnoble.com/">B
&N
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147 <listitem><para><ulink url=
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151 <!-- PAGE BREAK 2 -->
152 <!-- PAGE BREAK 3 -->
153 <dedication id=
"alsobylessig">
156 ALSO BY LAWRENCE LESSIG
159 The Future of Ideas: The Fate of the Commons in a Connected World
162 Code: And Other Laws of Cyberspace
165 <!-- PAGE BREAK 4 -->
166 <dedication id=
"frontpublisher">
169 THE PENGUIN PRESS, NEW YORK
172 <!-- PAGE BREAK 5 -->
173 <dedication id=
"frontbookinfo">
180 HOW BIG MEDIA USES TECHNOLOGY AND
181 THE LAW TO LOCK DOWN CULTURE
182 AND CONTROL CREATIVITY
189 <!-- PAGE BREAK 6 -->
192 THE PENGUIN PRESS, a member of Penguin Group (USA) Inc.
375 Hudson Street New
196 Copyright
© Lawrence Lessig. All rights reserved.
199 Excerpt from an editorial titled "The Coming of Copyright Perpetuity,"
200 <citetitle>The New York Times
</citetitle>, January
16,
2003. Copyright
201 © 2003 by The New York Times Co. Reprinted with permission.
204 Cartoon in
<xref linkend=
"fig-1711"/> by Paul Conrad, copyright Tribune
205 Media Services, Inc. All rights reserved. Reprinted with permission.
208 Diagram in
<xref linkend=
"fig-1761"/> courtesy of the office of FCC
209 Commissioner, Michael J. Copps.
212 Library of Congress Cataloging-in-Publication Data
216 Free culture : how big media uses technology and the law to lock down
217 culture and control creativity / Lawrence Lessig.
226 ISBN
1-
59420-
006-
8 (hardcover)
230 1. Intellectual property
—United States.
2. Mass media
—United States.
233 3. Technological innovations
—United States.
4. Art
—United States. I. Title.
239 343.7309'
9—dc22
242 This book is printed on acid-free paper.
245 Printed in the United States of America
251 Designed by Marysarah Quinn
259 Without limiting the rights under copyright reserved above, no part of
260 this publication may be reproduced, stored in or introduced into a
261 retrieval system, or transmitted, in any form or by any means
262 (electronic, mechanical, photocopying, recording or otherwise),
263 without the prior written permission of both the copyright owner and
264 the above publisher of this book.
267 The scanning, uploading, and distribution of this book via the
268 Internet or via any other means without the permission of the
269 publisher is illegal and punishable by law. Please purchase only
270 authorized electronic editions and do not participate in or encourage
271 electronic piracy of copyrighted materials. Your support of the
272 author's rights is appreciated.
276 <!-- PAGE BREAK 7 -->
277 <dedication><title></title>
279 To Eric Eldred
—whose work first drew me to this cause, and for whom
287 <title>List of figures
</title>
294 1 CHAPTER ONE: Creators
295 1 CHAPTER TWO: "Mere Copyists"
296 1 CHAPTER THREE: Catalogs
297 1 CHAPTER FOUR: "Pirates"
302 1 CHAPTER FIVE: "Piracy"
306 1 CHAPTER SIX: Founders
307 1 CHAPTER SEVEN: Recorders
308 1 CHAPTER EIGHT: Transformers
309 1 CHAPTER NINE: Collectors
310 1 CHAPTER TEN: "Property"
311 2 Why Hollywood Is Right
315 2 Law and Architecture: Reach
316 2 Architecture and Law: Force
317 2 Market: Concentration
320 1 CHAPTER ELEVEN: Chimera
321 1 CHAPTER TWELVE: Harms
322 2 Constraining Creators
323 2 Constraining Innovators
324 2 Corrupting Citizens
326 1 CHAPTER THIRTEEN: Eldred
327 1 CHAPTER FOURTEEN: Eldred II
331 2 Rebuilding Freedoms Previously Presumed: Examples
332 2 Rebuilding Free Culture: One Idea
334 2 1. More Formalities
335 3 Registration and Renewal
338 2 3. Free Use Vs. Fair Use
339 2 4. Liberate the Music- -Again
340 2 5. Fire Lots of Lawyers 304
346 <!-- PAGE BREAK 11 -->
348 <preface id=
"preface">
349 <title>PREFACE
</title>
350 <indexterm id=
"idxpoguedavid" class='startofrange'
>
351 <primary>Pogue, David
</primary>
354 At the end of his review of my first book,
<citetitle>Code: And Other
355 Laws of Cyberspace
</citetitle>, David Pogue, a brilliant writer and
356 author of countless technical and computer-related texts, wrote this:
360 Unlike actual law, Internet software has no capacity to punish. It
361 doesn't affect people who aren't online (and only a tiny minority
362 of the world population is). And if you don't like the Internet's
363 system, you can always flip off the modem.
<footnote id=
"preface01"><para>
364 David Pogue, "Don't Just Chat, Do Something,"
<citetitle>New York Times
</citetitle>,
30 January
2000.
369 Pogue was skeptical of the core argument of the book
—that
370 software, or "code," functioned as a kind of law
—and his review
371 suggested the happy thought that if life in cyberspace got bad, we
372 could always "drizzle, drazzle, druzzle, drome"-like simply flip a
373 switch and be back home. Turn off the modem, unplug the computer, and
374 any troubles that exist in
<emphasis>that
</emphasis> space wouldn't
378 Pogue might have been right in
1999—I'm skeptical, but maybe.
379 But even if he was right then, the point is not right now:
380 <citetitle>Free Culture
</citetitle> is about the troubles the Internet
381 causes even after the modem is turned
383 off. It is an argument about how the battles that now rage regarding life
384 on-line have fundamentally affected "people who aren't online." There
385 is no switch that will insulate us from the Internet's effect.
387 <indexterm startref=
"idxpoguedavid" class='endofrange'
/>
389 But unlike
<citetitle>Code
</citetitle>, the argument here is not much
390 about the Internet itself. It is instead about the consequence of the
391 Internet to a part of our tradition that is much more fundamental,
392 and, as hard as this is for a geek-wanna-be to admit, much more
396 That tradition is the way our culture gets made. As I explain in the
397 pages that follow, we come from a tradition of "free culture"
—not
398 "free" as in "free beer" (to borrow a phrase from the founder of the
399 free software movement
<footnote>
401 Richard M. Stallman,
<citetitle>Free Software, Free Societies
</citetitle> 57 (Joshua Gay, ed.
2002).
402 </para></footnote>), but "free" as in "free speech," "free markets,"
403 "free trade," "free enterprise," "free will," and "free elections." A
404 free culture supports and protects creators and innovators. It does
405 this directly by granting intellectual property rights. But it does so
406 indirectly by limiting the reach of those rights, to guarantee that
407 follow-on creators and innovators remain
<emphasis>as free as
408 possible
</emphasis> from the control of the past. A free culture is
409 not a culture without property, just as a free market is not a market
410 in which everything is free. The opposite of a free culture is a
411 "permission culture"
—a culture in which creators get to create
412 only with the permission of the powerful, or of creators from the
416 If we understood this change, I believe we would resist it. Not "we"
417 on the Left or "you" on the Right, but we who have no stake in the
418 particular industries of culture that defined the twentieth century.
419 Whether you are on the Left or the Right, if you are in this sense
420 disinterested, then the story I tell here will trouble you. For the
421 changes I describe affect values that both sides of our political
422 culture deem fundamental.
424 <indexterm><primary>CodePink Women in Peace
</primary></indexterm>
426 We saw a glimpse of this bipartisan outrage in the early summer of
427 2003. As the FCC considered changes in media ownership rules that
428 would relax limits on media concentration, an extraordinary coalition
429 generated more than
700,
000 letters to the FCC opposing the change.
430 As William Safire described marching "uncomfortably alongside CodePink
431 Women for Peace and the National Rifle Association, between liberal
432 Olympia Snowe and conservative Ted Stevens," he formulated perhaps
433 most simply just what was at stake: the concentration of power. And as
435 <indexterm><primary>Safire, William
</primary></indexterm>
439 Does that sound unconservative? Not to me. The concentration of
440 power
—political, corporate, media, cultural
—should be anathema to
441 conservatives. The diffusion of power through local control, thereby
442 encouraging individual participation, is the essence of federalism and
443 the greatest expression of democracy.
<footnote><para> William Safire,
444 "The Great Media Gulp,"
<citetitle>New York Times
</citetitle>,
22 May
2003.
445 <indexterm><primary>Safire, William
</primary></indexterm>
450 This idea is an element of the argument of
<citetitle>Free Culture
</citetitle>, though my
451 focus is not just on the concentration of power produced by
452 concentrations in ownership, but more importantly, if because less
453 visibly, on the concentration of power produced by a radical change in
454 the effective scope of the law. The law is changing; that change is
455 altering the way our culture gets made; that change should worry
456 you
—whether or not you care about the Internet, and whether you're on
457 Safire's left or on his right. The inspiration for the title and for
458 much of the argument of this book comes from the work of Richard
459 Stallman and the Free Software Foundation. Indeed, as I reread
460 Stallman's own work, especially the essays in
<citetitle>Free Software, Free
461 Society
</citetitle>, I realize that all of the theoretical insights I develop here
462 are insights Stallman described decades ago. One could thus well argue
463 that this work is "merely" derivative.
466 I accept that criticism, if indeed it is a criticism. The work of a
467 lawyer is always derivative, and I mean to do nothing more in this
468 book than to remind a culture about a tradition that has always been
469 its own. Like Stallman, I defend that tradition on the basis of
470 values. Like Stallman, I believe those are the values of freedom. And
471 like Stallman, I believe those are values of our past that will need
472 to be defended in our future. A free culture has been our past, but it
473 will only be our future if we change the path we are on right now.
476 Like Stallman's arguments for free software, an argument for free
477 culture stumbles on a confusion that is hard to avoid, and even harder
478 to understand. A free culture is not a culture without property; it is not
479 a culture in which artists don't get paid. A culture without property, or
480 in which creators can't get paid, is anarchy, not freedom. Anarchy is not
484 Instead, the free culture that I defend in this book is a balance
485 between anarchy and control. A free culture, like a free market, is
486 filled with property. It is filled with rules of property and contract
487 that get enforced by the state. But just as a free market is perverted
488 if its property becomes feudal, so too can a free culture be queered
489 by extremism in the property rights that define it. That is what I
490 fear about our culture today. It is against that extremism that this
495 <!-- PAGE BREAK 15 -->
497 <!-- PAGE BREAK 16 -->
498 <chapter label=
"0" id=
"c-introduction">
499 <title>INTRODUCTION
</title>
501 On December
17,
1903, on a windy North Carolina beach for just
502 shy of one hundred seconds, the Wright brothers demonstrated that a
503 heavier-than-air, self-propelled vehicle could fly. The moment was electric
504 and its importance widely understood. Almost immediately, there
505 was an explosion of interest in this newfound technology of manned
506 flight, and a gaggle of innovators began to build upon it.
509 At the time the Wright brothers invented the airplane, American
510 law held that a property owner presumptively owned not just the surface
511 of his land, but all the land below, down to the center of the earth,
512 and all the space above, to "an indefinite extent, upwards."
<footnote><para>
513 St. George Tucker,
<citetitle>Blackstone's Commentaries
</citetitle> 3 (South Hackensack, N.J.:
514 Rothman Reprints,
1969),
18.
517 years, scholars had puzzled about how best to interpret the idea that
518 rights in land ran to the heavens. Did that mean that you owned the
519 stars? Could you prosecute geese for their willful and regular trespass?
522 Then came airplanes, and for the first time, this principle of American
523 law
—deep within the foundations of our tradition, and acknowledged
524 by the most important legal thinkers of our past
—mattered. If
525 my land reaches to the heavens, what happens when United flies over
526 my field? Do I have the right to banish it from my property? Am I allowed
527 to enter into an exclusive license with Delta Airlines? Could we
528 set up an auction to decide how much these rights are worth?
530 <indexterm><primary>Causby, Thomas Lee
</primary></indexterm>
531 <indexterm><primary>Causby, Tinie
</primary></indexterm>
533 In
1945, these questions became a federal case. When North Carolina
534 farmers Thomas Lee and Tinie Causby started losing chickens
535 because of low-flying military aircraft (the terrified chickens apparently
536 flew into the barn walls and died), the Causbys filed a lawsuit saying
537 that the government was trespassing on their land. The airplanes,
538 of course, never touched the surface of the Causbys' land. But if, as
539 Blackstone, Kent, and Coke had said, their land reached to "an indefinite
540 extent, upwards," then the government was trespassing on their
541 property, and the Causbys wanted it to stop.
543 <indexterm><primary>Causby, Thomas Lee
</primary></indexterm>
544 <indexterm><primary>Causby, Tinie
</primary></indexterm>
546 The Supreme Court agreed to hear the Causbys' case. Congress had
547 declared the airways public, but if one's property really extended to the
548 heavens, then Congress's declaration could well have been an unconstitutional
549 "taking" of property without compensation. The Court acknowledged
550 that "it is ancient doctrine that common law ownership of
551 the land extended to the periphery of the universe." But Justice Douglas
552 had no patience for ancient doctrine. In a single paragraph, hundreds of
553 years of property law were erased. As he wrote for the Court,
557 [The] doctrine has no place in the modern world. The air is a
558 public highway, as Congress has declared. Were that not true,
559 every transcontinental flight would subject the operator to countless
560 trespass suits. Common sense revolts at the idea. To recognize
561 such private claims to the airspace would clog these highways,
562 seriously interfere with their control and development in the public
563 interest, and transfer into private ownership that to which only
564 the public has a just claim.
<footnote>
566 United States v. Causby, U.S.
328 (
1946):
256,
261. The Court did find
567 that there could be a "taking" if the government's use of its land
568 effectively destroyed the value of the Causbys' land. This example was
569 suggested to me by Keith Aoki's wonderful piece, "(Intellectual)
570 Property and Sovereignty: Notes Toward a Cultural Geography of
571 Authorship,"
<citetitle>Stanford Law Review
</citetitle> 48 (
1996):
1293,
1333. See also Paul
572 Goldstein,
<citetitle>Real Property
</citetitle> (Mineola, N.Y.: Foundation Press,
1984),
574 <indexterm><primary>Causby, Thomas Lee
</primary></indexterm>
575 <indexterm><primary>Causby, Tinie
</primary></indexterm>
580 "Common sense revolts at the idea."
583 This is how the law usually works. Not often this abruptly or
584 impatiently, but eventually, this is how it works. It was Douglas's style not to
585 dither. Other justices would have blathered on for pages to reach the
587 conclusion that Douglas holds in a single line: "Common sense revolts
588 at the idea." But whether it takes pages or a few words, it is the special
589 genius of a common law system, as ours is, that the law adjusts to the
590 technologies of the time. And as it adjusts, it changes. Ideas that were
591 as solid as rock in one age crumble in another.
593 <indexterm><primary>Causby, Thomas Lee
</primary></indexterm>
594 <indexterm><primary>Causby, Tinie
</primary></indexterm>
596 Or at least, this is how things happen when there's no one powerful
597 on the other side of the change. The Causbys were just farmers. And
598 though there were no doubt many like them who were upset by the
599 growing traffic in the air (though one hopes not many chickens flew
600 themselves into walls), the Causbys of the world would find it very
601 hard to unite and stop the idea, and the technology, that the Wright
602 brothers had birthed. The Wright brothers spat airplanes into the
603 technological meme pool; the idea then spread like a virus in a chicken
604 coop; farmers like the Causbys found themselves surrounded by "what
605 seemed reasonable" given the technology that the Wrights had produced.
606 They could stand on their farms, dead chickens in hand, and
607 shake their fists at these newfangled technologies all they wanted.
608 They could call their representatives or even file a lawsuit. But in the
609 end, the force of what seems "obvious" to everyone else
—the power of
610 "common sense"
—would prevail. Their "private interest" would not be
611 allowed to defeat an obvious public gain.
614 Edwin Howard Armstrong is one of America's forgotten inventor
615 geniuses. He came to the great American inventor scene just after the
616 titans Thomas Edison and Alexander Graham Bell. But his work in
617 the area of radio technology was perhaps the most important of any
618 single inventor in the first fifty years of radio. He was better educated
619 than Michael Faraday, who as a bookbinder's apprentice had discovered
620 electric induction in
1831. But he had the same intuition about
621 how the world of radio worked, and on at least three occasions,
622 Armstrong invented profoundly important technologies that advanced our
623 understanding of radio.
624 <!-- PAGE BREAK 19 -->
625 <indexterm><primary>Bell, Alexander Graham
</primary></indexterm>
626 <indexterm><primary>Edison, Thomas
</primary></indexterm>
627 <indexterm><primary>Faraday, Michael
</primary></indexterm>
630 On the day after Christmas,
1933, four patents were issued to Armstrong
631 for his most significant invention
—FM radio. Until then, consumer radio
632 had been amplitude-modulated (AM) radio. The theorists
633 of the day had said that frequency-modulated (FM) radio could never
634 work. They were right about FM radio in a narrow band of spectrum.
635 But Armstrong discovered that frequency-modulated radio in a wide
636 band of spectrum would deliver an astonishing fidelity of sound, with
637 much less transmitter power and static.
640 On November
5,
1935, he demonstrated the technology at a meeting of
641 the Institute of Radio Engineers at the Empire State Building in New
642 York City. He tuned his radio dial across a range of AM stations,
643 until the radio locked on a broadcast that he had arranged from
644 seventeen miles away. The radio fell totally silent, as if dead, and
645 then with a clarity no one else in that room had ever heard from an
646 electrical device, it produced the sound of an announcer's voice:
647 "This is amateur station W2AG at Yonkers, New York, operating on
648 frequency modulation at two and a half meters."
651 The audience was hearing something no one had thought possible:
655 A glass of water was poured before the microphone in Yonkers; it
656 sounded like a glass of water being poured.
… A paper was crumpled
657 and torn; it sounded like paper and not like a crackling forest
658 fire.
… Sousa marches were played from records and a piano solo
659 and guitar number were performed.
… The music was projected with a
660 live-ness rarely if ever heard before from a radio "music
661 box."
<footnote><para>
662 Lawrence Lessing,
<citetitle>Man of High Fidelity: Edwin Howard Armstrong
</citetitle>
663 (Philadelphia: J. B. Lipincott Company,
1956),
209.
668 As our own common sense tells us, Armstrong had discovered a vastly
669 superior radio technology. But at the time of his invention, Armstrong
670 was working for RCA. RCA was the dominant player in the then dominant
671 AM radio market. By
1935, there were a thousand radio stations across
672 the United States, but the stations in large cities were all owned by
673 a handful of networks.
677 RCA's president, David Sarnoff, a friend of Armstrong's, was eager
678 that Armstrong discover a way to remove static from AM radio. So
679 Sarnoff was quite excited when Armstrong told him he had a device
680 that removed static from "radio." But when Armstrong demonstrated
681 his invention, Sarnoff was not pleased.
682 <indexterm><primary>Sarnoff, David
</primary></indexterm>
686 I thought Armstrong would invent some kind of a filter to remove
687 static from our AM radio. I didn't think he'd start a
688 revolution
— start up a whole damn new industry to compete with
689 RCA.
<footnote><para> See "Saints: The Heroes and Geniuses of the
690 Electronic Era," First Electronic Church of America, at
691 www.webstationone.com/fecha, available at
693 <ulink url=
"http://free-culture.cc/notes/">link #
1</ulink>.
698 Armstrong's invention threatened RCA's AM empire, so the company
699 launched a campaign to smother FM radio. While FM may have been a
700 superior technology, Sarnoff was a superior tactician. As one author
702 <indexterm><primary>Sarnoff, David
</primary></indexterm>
706 The forces for FM, largely engineering, could not overcome the weight
707 of strategy devised by the sales, patent, and legal offices to subdue
708 this threat to corporate position. For FM, if allowed to develop
709 unrestrained, posed
… a complete reordering of radio power
710 … and the eventual overthrow of the carefully restricted AM system
711 on which RCA had grown to power.
<footnote><para>Lessing,
226.
716 RCA at first kept the technology in house, insisting that further
717 tests were needed. When, after two years of testing, Armstrong grew
718 impatient, RCA began to use its power with the government to stall
719 FM radio's deployment generally. In
1936, RCA hired the former head
720 of the FCC and assigned him the task of assuring that the FCC assign
721 spectrum in a way that would castrate FM
—principally by moving FM
722 radio to a different band of spectrum. At first, these efforts failed. But
723 when Armstrong and the nation were distracted by World War II,
724 RCA's work began to be more successful. Soon after the war ended, the
725 FCC announced a set of policies that would have one clear effect: FM
726 radio would be crippled. As Lawrence Lessing described it,
728 <!-- PAGE BREAK 21 -->
731 The series of body blows that FM radio received right after the
732 war, in a series of rulings manipulated through the FCC by the
733 big radio interests, were almost incredible in their force and
734 deviousness.
<footnote><para>
739 <indexterm><primary>AT
&T
</primary></indexterm>
741 To make room in the spectrum for RCA's latest gamble, television,
742 FM radio users were to be moved to a totally new spectrum band. The
743 power of FM radio stations was also cut, meaning FM could no longer
744 be used to beam programs from one part of the country to another.
745 (This change was strongly supported by AT
&T, because the loss of
746 FM relaying stations would mean radio stations would have to buy
747 wired links from AT
&T.) The spread of FM radio was thus choked, at
751 Armstrong resisted RCA's efforts. In response, RCA resisted
752 Armstrong's patents. After incorporating FM technology into the
753 emerging standard for television, RCA declared the patents
754 invalid
—baselessly, and almost fifteen years after they were
755 issued. It thus refused to pay him royalties. For six years, Armstrong
756 fought an expensive war of litigation to defend the patents. Finally,
757 just as the patents expired, RCA offered a settlement so low that it
758 would not even cover Armstrong's lawyers' fees. Defeated, broken, and
759 now broke, in
1954 Armstrong wrote a short note to his wife and then
760 stepped out of a thirteenth-story window to his death.
763 This is how the law sometimes works. Not often this tragically, and
764 rarely with heroic drama, but sometimes, this is how it works. From
765 the beginning, government and government agencies have been subject to
766 capture. They are more likely captured when a powerful interest is
767 threatened by either a legal or technical change. That powerful
768 interest too often exerts its influence within the government to get
769 the government to protect it. The rhetoric of this protection is of
770 course always public spirited; the reality is something
771 different. Ideas that were as solid as rock in one age, but that, left
772 to themselves, would crumble in
774 another, are sustained through this subtle corruption of our political
775 process. RCA had what the Causbys did not: the power to stifle the
776 effect of technological change.
779 There's no single inventor of the Internet. Nor is there any good date
780 upon which to mark its birth. Yet in a very short time, the Internet
781 has become part of ordinary American life. According to the Pew
782 Internet and American Life Project,
58 percent of Americans had access
783 to the Internet in
2002, up from
49 percent two years
784 before.
<footnote><para>
785 Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look at
786 Internet Access and the Digital Divide," Pew Internet and American
787 Life Project,
15 April
2003:
6, available at
788 <ulink url=
"http://free-culture.cc/notes/">link #
2</ulink>.
790 That number could well exceed two thirds of the nation by the end
794 As the Internet has been integrated into ordinary life, it has
795 changed things. Some of these changes are technical
—the Internet has
796 made communication faster, it has lowered the cost of gathering data,
797 and so on. These technical changes are not the focus of this book. They
798 are important. They are not well understood. But they are the sort of
799 thing that would simply go away if we all just switched the Internet off.
800 They don't affect people who don't use the Internet, or at least they
801 don't affect them directly. They are the proper subject of a book about
802 the Internet. But this is not a book about the Internet.
805 Instead, this book is about an effect of the Internet beyond the
806 Internet itself: an effect upon how culture is made. My claim is that
807 the Internet has induced an important and unrecognized change in that
808 process. That change will radically transform a tradition that is as
809 old as the Republic itself. Most, if they recognized this change,
810 would reject it. Yet most don't even see the change that the Internet
814 We can glimpse a sense of this change by distinguishing between
815 commercial and noncommercial culture, and by mapping the law's
816 regulation of each. By "commercial culture" I mean that part of our
817 culture that is produced and sold or produced to be sold. By
818 "noncommercial culture" I mean all the rest. When old men sat around
820 <!-- PAGE BREAK 23 -->
821 street corners telling stories that kids and others consumed, that was
822 noncommercial culture. When Noah Webster published his "Reader," or
823 Joel Barlow his poetry, that was commercial culture.
824 <indexterm><primary>Barlow, Joel
</primary></indexterm>
825 <indexterm><primary>Webster, Noah
</primary></indexterm>
828 At the beginning of our history, and for just about the whole of our
829 tradition, noncommercial culture was essentially unregulated. Of
830 course, if your stories were lewd, or if your song disturbed the
831 peace, then the law might intervene. But the law was never directly
832 concerned with the creation or spread of this form of culture, and it
833 left this culture "free." The ordinary ways in which ordinary
834 individuals shared and transformed their culture
—telling
835 stories, reenacting scenes from plays or TV, participating in fan
836 clubs, sharing music, making tapes
—were left alone by the law.
839 The focus of the law was on commercial creativity. At first slightly,
840 then quite extensively, the law protected the incentives of creators by
841 granting them exclusive rights to their creative work, so that they could
842 sell those exclusive rights in a commercial
843 marketplace.
<footnote>
845 This is not the only purpose of copyright, though it is the overwhelmingly
846 primary purpose of the copyright established in the federal constitution.
847 State copyright law historically protected not just the commercial interest in
848 publication, but also a privacy interest. By granting authors the exclusive
849 right to first publication, state copyright law gave authors the power to
850 control the spread of facts about them. See Samuel D. Warren and Louis
851 D. Brandeis, "The Right to Privacy," Harvard Law Review
4 (
1890):
193,
853 <indexterm><primary>Brandeis, Louis D.
</primary></indexterm>
855 This is also, of course, an important part of creativity and culture,
856 and it has become an increasingly important part in America. But in no
857 sense was it dominant within our tradition. It was instead just one
858 part, a controlled part, balanced with the free.
861 This rough divide between the free and the controlled has now
862 been erased.
<footnote><para>
863 See Jessica Litman,
<citetitle>Digital Copyright
</citetitle> (New York: Prometheus Books,
865 <indexterm><primary>Litman, Jessica
</primary></indexterm>
867 The Internet has set the stage for this erasure and, pushed by big
868 media, the law has now affected it. For the first time in our
869 tradition, the ordinary ways in which individuals create and share
870 culture fall within the reach of the regulation of the law, which has
871 expanded to draw within its control a vast amount of culture and
872 creativity that it never reached before. The technology that preserved
873 the balance of our history
—between uses of our culture that were
874 free and uses of our culture that were only upon permission
—has
875 been undone. The consequence is that we are less and less a free
876 culture, more and more a permission culture.
878 <!-- PAGE BREAK 24 -->
880 This change gets justified as necessary to protect commercial
881 creativity. And indeed, protectionism is precisely its
882 motivation. But the protectionism that justifies the changes that I
883 will describe below is not the limited and balanced sort that has
884 defined the law in the past. This is not a protectionism to protect
885 artists. It is instead a protectionism to protect certain forms of
886 business. Corporations threatened by the potential of the Internet to
887 change the way both commercial and noncommercial culture are made and
888 shared have united to induce lawmakers to use the law to protect
889 them. It is the story of RCA and Armstrong; it is the dream of the
893 For the Internet has unleashed an extraordinary possibility for many
894 to participate in the process of building and cultivating a culture
895 that reaches far beyond local boundaries. That power has changed the
896 marketplace for making and cultivating culture generally, and that
897 change in turn threatens established content industries. The Internet
898 is thus to the industries that built and distributed content in the
899 twentieth century what FM radio was to AM radio, or what the truck was
900 to the railroad industry of the nineteenth century: the beginning of
901 the end, or at least a substantial transformation. Digital
902 technologies, tied to the Internet, could produce a vastly more
903 competitive and vibrant market for building and cultivating culture;
904 that market could include a much wider and more diverse range of
905 creators; those creators could produce and distribute a much more
906 vibrant range of creativity; and depending upon a few important
907 factors, those creators could earn more on average from this system
908 than creators do today
—all so long as the RCAs of our day don't
909 use the law to protect themselves against this competition.
912 Yet, as I argue in the pages that follow, that is precisely what is
913 happening in our culture today. These modern-day equivalents of the
914 early twentieth-century radio or nineteenth-century railroads are
915 using their power to get the law to protect them against this new,
916 more efficient, more vibrant technology for building culture. They are
917 succeeding in their plan to remake the Internet before the Internet
921 It doesn't seem this way to many. The battles over copyright and the
922 <!-- PAGE BREAK 25 -->
923 Internet seem remote to most. To the few who follow them, they seem
924 mainly about a much simpler brace of questions
—whether "piracy" will
925 be permitted, and whether "property" will be protected. The "war" that
926 has been waged against the technologies of the Internet
—what
927 Motion Picture Association of America (MPAA) president Jack Valenti
928 calls his "own terrorist war"
<footnote><para>
929 Amy Harmon, "Black Hawk Download: Moving Beyond Music, Pirates
930 Use New Tools to Turn the Net into an Illicit Video Club,"
<citetitle>New York
931 Times
</citetitle>,
17 January
2002.
932 </para></footnote>—has been framed as a battle about the
933 rule of law and respect for property. To know which side to take in this
934 war, most think that we need only decide whether we're for property or
938 If those really were the choices, then I would be with Jack Valenti
939 and the content industry. I, too, am a believer in property, and
940 especially in the importance of what Mr. Valenti nicely calls
941 "creative property." I believe that "piracy" is wrong, and that the
942 law, properly tuned, should punish "piracy," whether on or off the
946 But those simple beliefs mask a much more fundamental question
947 and a much more dramatic change. My fear is that unless we come to see
948 this change, the war to rid the world of Internet "pirates" will also rid our
949 culture of values that have been integral to our tradition from the start.
952 These values built a tradition that, for at least the first
180 years of
953 our Republic, guaranteed creators the right to build freely upon their
954 past, and protected creators and innovators from either state or private
955 control. The First Amendment protected creators against state control.
956 And as Professor Neil Netanel powerfully argues,
<footnote>
958 Neil W. Netanel, "Copyright and a Democratic Civil Society,"
<citetitle>Yale Law
959 Journal
</citetitle> 106 (
1996):
283.
960 <indexterm><primary>Netanel, Neil Weinstock
</primary></indexterm>
962 copyright law, properly balanced, protected creators against private
963 control. Our tradition was thus neither Soviet nor the tradition of
964 patrons. It instead carved out a wide berth within which creators
965 could cultivate and extend our culture.
968 Yet the law's response to the Internet, when tied to changes in the
969 technology of the Internet itself, has massively increased the
970 effective regulation of creativity in America. To build upon or
971 critique the culture around us one must ask, Oliver Twist
–like,
972 for permission first. Permission is, of course, often
973 granted
—but it is not often granted to the critical or the
974 independent. We have built a kind of cultural nobility; those within
975 the noble class live easily; those outside it don't. But it is
976 nobility of any form that is alien to our tradition.
978 <!-- PAGE BREAK 26. FIXME: Should "Is it" be "It is" ? -->
980 The story that follows is about this war. Is it not about the
981 "centrality of technology" to ordinary life. I don't believe in gods,
982 digital or otherwise. Nor is it an effort to demonize any individual
983 or group, for neither do I believe in a devil, corporate or
984 otherwise. It is not a morality tale. Nor is it a call to jihad
988 It is instead an effort to understand a hopelessly destructive war
989 inspired by the technologies of the Internet but reaching far beyond
990 its code. And by understanding this battle, it is an effort to map
991 peace. There is no good reason for the current struggle around
992 Internet technologies to continue. There will be great harm to our
993 tradition and culture if it is allowed to continue unchecked. We must
994 come to understand the source of this war. We must resolve it soon.
996 <indexterm><primary>Causby, Thomas Lee
</primary></indexterm>
997 <indexterm><primary>Causby, Tinie
</primary></indexterm>
999 Like the Causbys' battle, this war is, in part, about "property." The
1000 property of this war is not as tangible as the Causbys', and no
1001 innocent chicken has yet to lose its life. Yet the ideas surrounding
1002 this "property" are as obvious to most as the Causbys' claim about the
1003 sacredness of their farm was to them. We are the Causbys. Most of us
1004 take for granted the extraordinarily powerful claims that the owners
1005 of "intellectual property" now assert. Most of us, like the Causbys,
1006 treat these claims as obvious. And hence we, like the Causbys, object
1007 when a new technology interferes with this property. It is as plain to
1008 us as it was to them that the new technologies of the Internet are
1009 "trespassing" upon legitimate claims of "property." It is as plain to
1010 us as it was to them that the law should intervene to stop this
1013 <indexterm><primary>Causby, Thomas Lee
</primary></indexterm>
1014 <indexterm><primary>Causby, Tinie
</primary></indexterm>
1016 And thus, when geeks and technologists defend their Armstrong or
1017 Wright brothers technology, most of us are simply unsympathetic.
1018 Common sense does not revolt. Unlike in the case of the unlucky
1019 Causbys, common sense is on the side of the property owners in this
1021 <!--PAGE BREAK 27-->
1022 the lucky Wright brothers, the Internet has not inspired a revolution
1026 My hope is to push this common sense along. I have become increasingly
1027 amazed by the power of this idea of intellectual property and, more
1028 importantly, its power to disable critical thought by policy makers
1029 and citizens. There has never been a time in our history when more of
1030 our "culture" was as "owned" as it is now. And yet there has never
1031 been a time when the concentration of power to control the
1032 <emphasis>uses
</emphasis> of culture has been as unquestioningly
1033 accepted as it is now.
1036 The puzzle is, Why? Is it because we have come to understand a truth
1037 about the value and importance of absolute property over ideas and
1038 culture? Is it because we have discovered that our tradition of
1039 rejecting such an absolute claim was wrong?
1042 Or is it because the idea of absolute property over ideas and culture
1043 benefits the RCAs of our time and fits our own unreflective intuitions?
1046 Is the radical shift away from our tradition of free culture an instance
1047 of America correcting a mistake from its past, as we did after a bloody
1048 war with slavery, and as we are slowly doing with inequality? Or is the
1049 radical shift away from our tradition of free culture yet another example
1050 of a political system captured by a few powerful special interests?
1053 Does common sense lead to the extremes on this question because common
1054 sense actually believes in these extremes? Or does common sense stand
1055 silent in the face of these extremes because, as with Armstrong versus
1056 RCA, the more powerful side has ensured that it has the more powerful
1059 <indexterm><primary>Causby, Thomas Lee
</primary></indexterm>
1060 <indexterm><primary>Causby, Tinie
</primary></indexterm>
1062 I don't mean to be mysterious. My own views are resolved. I believe it
1063 was right for common sense to revolt against the extremism of the
1064 Causbys. I believe it would be right for common sense to revolt
1065 against the extreme claims made today on behalf of "intellectual
1066 property." What the law demands today is increasingly as silly as a
1067 sheriff arresting an airplane for trespass. But the consequences of
1068 this silliness will be much more profound.
1069 <!-- PAGE BREAK 28 -->
1072 The struggle that rages just now centers on two ideas: "piracy" and
1073 "property." My aim in this book's next two parts is to explore these two
1077 My method is not the usual method of an academic. I don't want to
1078 plunge you into a complex argument, buttressed with references to
1079 obscure French theorists
—however natural that is for the weird
1080 sort we academics have become. Instead I begin in each part with a
1081 collection of stories that set a context within which these apparently
1082 simple ideas can be more fully understood.
1085 The two sections set up the core claim of this book: that while the
1086 Internet has indeed produced something fantastic and new, our
1087 government, pushed by big media to respond to this "something new," is
1088 destroying something very old. Rather than understanding the changes
1089 the Internet might permit, and rather than taking time to let "common
1090 sense" resolve how best to respond, we are allowing those most
1091 threatened by the changes to use their power to change the
1092 law
—and more importantly, to use their power to change something
1093 fundamental about who we have always been.
1096 We allow this, I believe, not because it is right, and not because
1097 most of us really believe in these changes. We allow it because the
1098 interests most threatened are among the most powerful players in our
1099 depressingly compromised process of making law. This book is the story
1100 of one more consequence of this form of corruption
—a consequence
1101 to which most of us remain oblivious.
1104 <!-- PAGE BREAK 29 -->
1105 <part id=
"c-piracy">
1106 <title>"PIRACY"</title>
1108 <!-- PAGE BREAK 30 -->
1109 <indexterm id=
"idxmansfield1" class='startofrange'
>
1110 <primary>Mansfield, William Murray, Lord
</primary>
1113 Since the inception of the law regulating creative property, there has
1114 been a war against "piracy." The precise contours of this concept,
1115 "piracy," are hard to sketch, but the animating injustice is easy to
1116 capture. As Lord Mansfield wrote in a case that extended the reach of
1117 English copyright law to include sheet music,
1121 A person may use the copy by playing it, but he has no right to
1122 rob the author of the profit, by multiplying copies and disposing
1123 of them for his own use.
<footnote><para>
1125 <citetitle>Bach
</citetitle> v.
<citetitle>Longman
</citetitle>,
98 Eng. Rep.
1274 (
1777) (Mansfield).
1128 <indexterm startref=
"idxmansfield1" class='endofrange'
/>
1131 Today we are in the middle of another "war" against "piracy." The
1132 Internet has provoked this war. The Internet makes possible the
1133 efficient spread of content. Peer-to-peer (p2p) file sharing is among
1134 the most efficient of the efficient technologies the Internet
1135 enables. Using distributed intelligence, p2p systems facilitate the
1136 easy spread of content in a way unimagined a generation ago.
1137 <!-- PAGE BREAK 31 -->
1140 This efficiency does not respect the traditional lines of copyright.
1141 The network doesn't discriminate between the sharing of copyrighted
1142 and uncopyrighted content. Thus has there been a vast amount of
1143 sharing of copyrighted content. That sharing in turn has excited the
1144 war, as copyright owners fear the sharing will "rob the author of the
1148 The warriors have turned to the courts, to the legislatures, and
1149 increasingly to technology to defend their "property" against this
1150 "piracy." A generation of Americans, the warriors warn, is being
1151 raised to believe that "property" should be "free." Forget tattoos,
1152 never mind body piercing
—our kids are becoming
1153 <emphasis>thieves
</emphasis>!
1156 There's no doubt that "piracy" is wrong, and that pirates should be
1157 punished. But before we summon the executioners, we should put this
1158 notion of "piracy" in some context. For as the concept is increasingly
1159 used, at its core is an extraordinary idea that is almost certainly wrong.
1162 The idea goes something like this:
1166 Creative work has value; whenever I use, or take, or build upon
1167 the creative work of others, I am taking from them something of
1168 value. Whenever I take something of value from someone else, I
1169 should have their permission. The taking of something of value
1170 from someone else without permission is wrong. It is a form of
1174 <indexterm><primary>Dreyfuss, Rochelle
</primary></indexterm>
1176 This view runs deep within the current debates. It is what NYU law
1177 professor Rochelle Dreyfuss criticizes as the "if value, then right"
1178 theory of creative property
<footnote><para>
1180 See Rochelle Dreyfuss, "Expressive Genericity: Trademarks as Language
1181 in the Pepsi Generation,"
<citetitle>Notre Dame Law Review
</citetitle> 65 (
1990):
397.
1183 —if there is value, then someone must have a
1184 right to that value. It is the perspective that led a composers' rights
1185 organization, ASCAP, to sue the Girl Scouts for failing to pay for the
1186 songs that girls sang around Girl Scout campfires.
<footnote><para>
1188 Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They Pay
1189 Up,"
<citetitle>Wall Street Journal
</citetitle>,
21 August
1996, available at
1190 <ulink url=
"http://free-culture.cc/notes/">link #
3</ulink>; Jonathan
1191 Zittrain, "Calling Off the Copyright War: In Battle of Property vs. Free
1192 Speech, No One Wins,"
<citetitle>Boston Globe
</citetitle>,
24 November
2002.
1193 <indexterm><primary>Zittrain, Jonathan
</primary></indexterm>
1195 There was "value" (the songs) so there must have been a
1196 "right"
—even against the Girl Scouts.
1198 <indexterm><primary>ASCAP
</primary></indexterm>
1200 This idea is certainly a possible understanding of how creative
1201 property should work. It might well be a possible design for a system
1202 <!-- PAGE BREAK 32 -->
1203 of law protecting creative property. But the "if value, then right"
1204 theory of creative property has never been America's theory of
1205 creative property. It has never taken hold within our law.
1208 Instead, in our tradition, intellectual property is an instrument. It
1209 sets the groundwork for a richly creative society but remains
1210 subservient to the value of creativity. The current debate has this
1211 turned around. We have become so concerned with protecting the
1212 instrument that we are losing sight of the value.
1215 The source of this confusion is a distinction that the law no longer
1216 takes care to draw
—the distinction between republishing someone's
1217 work on the one hand and building upon or transforming that work on
1218 the other. Copyright law at its birth had only publishing as its concern;
1219 copyright law today regulates both.
1222 Before the technologies of the Internet, this conflation didn't matter
1223 all that much. The technologies of publishing were expensive; that
1224 meant the vast majority of publishing was commercial. Commercial
1225 entities could bear the burden of the law
—even the burden of the
1226 Byzantine complexity that copyright law has become. It was just one
1227 more expense of doing business.
1229 <indexterm><primary>Florida, Richard
</primary></indexterm>
1230 <indexterm><primary>Rise of the Creative Class, The (Florida)
</primary></indexterm>
1232 But with the birth of the Internet, this natural limit to the reach of
1233 the law has disappeared. The law controls not just the creativity of
1234 commercial creators but effectively that of anyone. Although that
1235 expansion would not matter much if copyright law regulated only
1236 "copying," when the law regulates as broadly and obscurely as it does,
1237 the extension matters a lot. The burden of this law now vastly
1238 outweighs any original benefit
—certainly as it affects
1239 noncommercial creativity, and increasingly as it affects commercial
1240 creativity as well. Thus, as we'll see more clearly in the chapters
1241 below, the law's role is less and less to support creativity, and more
1242 and more to protect certain industries against competition. Just at
1243 the time digital technology could unleash an extraordinary range of
1244 commercial and noncommercial creativity, the law burdens this
1245 creativity with insanely complex and vague rules and with the threat
1246 of obscenely severe penalties. We may
1247 <!-- PAGE BREAK 33 -->
1248 be seeing, as Richard Florida writes, the "Rise of the Creative
1252 In
<citetitle>The Rise of the Creative Class
</citetitle> (New York:
1253 Basic Books,
2002), Richard Florida documents a shift in the nature of
1254 labor toward a labor of creativity. His work, however, doesn't
1255 directly address the legal conditions under which that creativity is
1256 enabled or stifled. I certainly agree with him about the importance
1257 and significance of this change, but I also believe the conditions
1258 under which it will be enabled are much more tenuous.
1260 <indexterm><primary>Florida, Richard
</primary></indexterm>
1261 <indexterm><primary>Rise of the Creative Class, The (Florida)
</primary></indexterm>
1263 Unfortunately, we are also seeing an extraordinary rise of regulation of
1264 this creative class.
1267 These burdens make no sense in our tradition. We should begin by
1268 understanding that tradition a bit more and by placing in their proper
1269 context the current battles about behavior labeled "piracy."
1273 <!-- PAGE BREAK 34 -->
1274 <chapter label=
"1" id=
"creators">
1275 <title>CHAPTER ONE: Creators
</title>
1277 In
1928, a cartoon character was born. An early Mickey Mouse
1278 made his debut in May of that year, in a silent flop called
<citetitle>Plane Crazy
</citetitle>.
1279 In November, in New York City's Colony Theater, in the first widely
1280 distributed cartoon synchronized with sound,
<citetitle>Steamboat Willie
</citetitle> brought
1281 to life the character that would become Mickey Mouse.
1284 Synchronized sound had been introduced to film a year earlier in the
1285 movie
<citetitle>The Jazz Singer
</citetitle>. That success led Walt Disney to copy the
1286 technique and mix sound with cartoons. No one knew whether it would
1287 work or, if it did work, whether it would win an audience. But when
1288 Disney ran a test in the summer of
1928, the results were unambiguous.
1289 As Disney describes that first experiment,
1293 A couple of my boys could read music, and one of them could play
1294 a mouth organ. We put them in a room where they could not see
1295 the screen and arranged to pipe their sound into the room where
1296 our wives and friends were going to see the picture.
1297 <!-- PAGE BREAK 35 -->
1300 The boys worked from a music and sound-effects score. After several
1301 false starts, sound and action got off with the gun. The mouth
1302 organist played the tune, the rest of us in the sound department
1303 bammed tin pans and blew slide whistles on the beat. The
1304 synchronization was pretty close.
1307 The effect on our little audience was nothing less than electric.
1308 They responded almost instinctively to this union of sound and
1309 motion. I thought they were kidding me. So they put me in the audience
1310 and ran the action again. It was terrible, but it was wonderful! And
1311 it was something new!
<footnote><para>
1313 Leonard Maltin,
<citetitle>Of Mice and Magic: A History of American Animated
1314 Cartoons
</citetitle> (New York: Penguin Books,
1987),
34–35.
1319 Disney's then partner, and one of animation's most extraordinary
1320 talents, Ub Iwerks, put it more strongly: "I have never been so thrilled
1321 in my life. Nothing since has ever equaled it."
1322 <indexterm><primary>Iwerks, Ub
</primary></indexterm>
1325 Disney had created something very new, based upon something relatively
1326 new. Synchronized sound brought life to a form of creativity that had
1327 rarely
—except in Disney's hands
—been anything more than
1328 filler for other films. Throughout animation's early history, it was
1329 Disney's invention that set the standard that others struggled to
1330 match. And quite often, Disney's great genius, his spark of
1331 creativity, was built upon the work of others.
1334 This much is familiar. What you might not know is that
1928 also marks
1335 another important transition. In that year, a comic (as opposed to
1336 cartoon) genius created his last independently produced silent film.
1337 That genius was Buster Keaton. The film was
<citetitle>Steamboat Bill, Jr
</citetitle>.
1340 Keaton was born into a vaudeville family in
1895. In the era of silent
1341 film, he had mastered using broad physical comedy as a way to spark
1342 uncontrollable laughter from his audience.
<citetitle>Steamboat Bill,
1343 Jr
</citetitle>. was a classic of this form, famous among film buffs for its
1344 incredible stunts. The film was classic Keaton
—wildly popular
1345 and among the best of its genre.
1348 <citetitle>Steamboat Bill, Jr
</citetitle>. appeared before Disney's cartoon Steamboat
1350 <!-- PAGE BREAK 36 -->
1351 The coincidence of titles is not coincidental. Steamboat Willie is a
1352 direct cartoon parody of Steamboat Bill,
<footnote><para>
1354 I am grateful to David Gerstein and his careful history, described at
1355 <ulink url=
"http://free-culture.cc/notes/">link #
4</ulink>.
1356 According to Dave Smith of the Disney Archives, Disney paid royalties to
1357 use the music for five songs in
<citetitle>Steamboat Willie
</citetitle>: "Steamboat Bill," "The
1358 Simpleton" (Delille), "Mischief Makers" (Carbonara), "Joyful Hurry No.
1"
1359 (Baron), and "Gawky Rube" (Lakay). A sixth song, "The Turkey in the
1360 Straw," was already in the public domain. Letter from David Smith to
1361 Harry Surden,
10 July
2003, on file with author.
1363 and both are built upon a common song as a source. It is not just from
1364 the invention of synchronized sound in
<citetitle>The Jazz Singer
</citetitle> that we
1365 get
<citetitle>Steamboat Willie
</citetitle>. It is also from Buster Keaton's invention of
1366 Steamboat Bill, Jr., itself inspired by the song "Steamboat Bill,"
1367 that we get Steamboat Willie, and then from Steamboat Willie, Mickey
1371 This "borrowing" was nothing unique, either for Disney or for the
1372 industry. Disney was always parroting the feature-length mainstream
1373 films of his day.
<footnote><para>
1375 He was also a fan of the public domain. See Chris Sprigman, "The Mouse
1376 that Ate the Public Domain," Findlaw,
5 March
2002, at
1377 <ulink url=
"http://free-culture.cc/notes/">link #
5</ulink>.
1379 So did many others. Early cartoons are filled with
1380 knockoffs
—slight variations on winning themes; retellings of
1381 ancient stories. The key to success was the brilliance of the
1382 differences. With Disney, it was sound that gave his animation its
1383 spark. Later, it was the quality of his work relative to the
1384 production-line cartoons with which he competed. Yet these additions
1385 were built upon a base that was borrowed. Disney added to the work of
1386 others before him, creating something new out of something just barely
1390 Sometimes this borrowing was slight. Sometimes it was significant.
1391 Think about the fairy tales of the Brothers Grimm. If you're as
1392 oblivious as I was, you're likely to think that these tales are happy,
1393 sweet stories, appropriate for any child at bedtime. In fact, the
1394 Grimm fairy tales are, well, for us, grim. It is a rare and perhaps
1395 overly ambitious parent who would dare to read these bloody,
1396 moralistic stories to his or her child, at bedtime or anytime.
1399 Disney took these stories and retold them in a way that carried them
1400 into a new age. He animated the stories, with both characters and
1401 light. Without removing the elements of fear and danger altogether, he
1402 made funny what was dark and injected a genuine emotion of compassion
1403 where before there was fear. And not just with the work of the
1404 Brothers Grimm. Indeed, the catalog of Disney work drawing upon the
1405 work of others is astonishing when set together:
<citetitle>Snow White
</citetitle>
1406 (
1937),
<citetitle>Fantasia
</citetitle> (
1940),
<citetitle>Pinocchio
</citetitle> (
1940),
<citetitle>Dumbo
</citetitle>
1407 (
1941),
<citetitle>Bambi
</citetitle> (
1942),
<citetitle>Song of the South
</citetitle> (
1946),
1408 <citetitle>Cinderella
</citetitle> (
1950),
<citetitle>Alice in Wonderland
</citetitle> (
1951),
<citetitle>Robin
1409 Hood
</citetitle> (
1952),
<citetitle>Peter Pan
</citetitle> (
1953),
<citetitle>Lady and the Tramp
</citetitle>
1410 <!-- PAGE BREAK 37 -->
1411 (
1955),
<citetitle>Mulan
</citetitle> (
1998),
<citetitle>Sleeping Beauty
</citetitle> (
1959),
<citetitle>101
1412 Dalmatians
</citetitle> (
1961),
<citetitle>The Sword in the Stone
</citetitle> (
1963), and
1413 <citetitle>The Jungle Book
</citetitle> (
1967)
—not to mention a recent example
1414 that we should perhaps quickly forget,
<citetitle>Treasure Planet
</citetitle>
1415 (
2003). In all of these cases, Disney (or Disney, Inc.) ripped
1416 creativity from the culture around him, mixed that creativity with his
1417 own extraordinary talent, and then burned that mix into the soul of
1418 his culture. Rip, mix, and burn.
1421 This is a kind of creativity. It is a creativity that we should
1422 remember and celebrate. There are some who would say that there is no
1423 creativity except this kind. We don't need to go that far to recognize
1424 its importance. We could call this "Disney creativity," though that
1425 would be a bit misleading. It is, more precisely, "Walt Disney
1426 creativity"
—a form of expression and genius that builds upon the
1427 culture around us and makes it something different.
1429 <para> In
1928, the culture that Disney was free to draw upon was
1430 relatively fresh. The public domain in
1928 was not very old and was
1431 therefore quite vibrant. The average term of copyright was just around
1432 thirty years
—for that minority of creative work that was in fact
1433 copyrighted.
<footnote><para>
1435 Until
1976, copyright law granted an author the possibility of two terms: an
1436 initial term and a renewal term. I have calculated the "average" term by
1438 the weighted average of total registrations for any particular year,
1439 and the proportion renewing. Thus, if
100 copyrights are registered in year
1440 1, and only
15 are renewed, and the renewal term is
28 years, then the
1442 term is
32.2 years. For the renewal data and other relevant data, see the
1443 Web site associated with this book, available at
1444 <ulink url=
"http://free-culture.cc/notes/">link #
6</ulink>.
1446 That means that for thirty years, on average, the authors or
1447 copyright holders of a creative work had an "exclusive right" to control
1448 certain uses of the work. To use this copyrighted work in limited ways
1449 required the permission of the copyright owner.
1452 At the end of a copyright term, a work passes into the public domain.
1453 No permission is then needed to draw upon or use that work. No
1454 permission and, hence, no lawyers. The public domain is a "lawyer-free
1455 zone." Thus, most of the content from the nineteenth century was free
1456 for Disney to use and build upon in
1928. It was free for
1457 anyone
— whether connected or not, whether rich or not, whether
1458 approved or not
—to use and build upon.
1461 This is the ways things always were
—until quite recently. For most
1462 of our history, the public domain was just over the horizon. From
1463 until
1978, the average copyright term was never more than thirty-two
1464 years, meaning that most culture just a generation and a half old was
1466 <!-- PAGE BREAK 38 -->
1467 free for anyone to build upon without the permission of anyone else.
1468 Today's equivalent would be for creative work from the
1960s and
1970s
1469 to now be free for the next Walt Disney to build upon without
1470 permission. Yet today, the public domain is presumptive only for
1471 content from before the Great Depression.
1474 Of course, Walt Disney had no monopoly on "Walt Disney creativity."
1475 Nor does America. The norm of free culture has, until recently, and
1476 except within totalitarian nations, been broadly exploited and quite
1480 Consider, for example, a form of creativity that seems strange to many
1481 Americans but that is inescapable within Japanese culture:
<citetitle>manga
</citetitle>, or
1482 comics. The Japanese are fanatics about comics. Some
40 percent of
1483 publications are comics, and
30 percent of publication revenue derives
1484 from comics. They are everywhere in Japanese society, at every
1485 magazine stand, carried by a large proportion of commuters on Japan's
1486 extraordinary system of public transportation.
1489 Americans tend to look down upon this form of culture. That's an
1490 unattractive characteristic of ours. We're likely to misunderstand
1491 much about manga, because few of us have ever read anything close to
1492 the stories that these "graphic novels" tell. For the Japanese, manga
1493 cover every aspect of social life. For us, comics are "men in tights."
1494 And anyway, it's not as if the New York subways are filled with
1495 readers of Joyce or even Hemingway. People of different cultures
1496 distract themselves in different ways, the Japanese in this
1497 interestingly different way.
1500 But my purpose here is not to understand manga. It is to describe a
1501 variant on manga that from a lawyer's perspective is quite odd, but
1502 from a Disney perspective is quite familiar.
1505 This is the phenomenon of
<citetitle>doujinshi
</citetitle>. Doujinshi are also comics, but
1506 they are a kind of copycat comic. A rich ethic governs the creation of
1507 doujinshi. It is not doujinshi if it is
<emphasis>just
</emphasis> a
1508 copy; the artist must make a contribution to the art he copies, by
1509 transforming it either subtly or
1510 <!-- PAGE BREAK 39 -->
1511 significantly. A doujinshi comic can thus take a mainstream comic and
1512 develop it differently
—with a different story line. Or the comic can
1513 keep the character in character but change its look slightly. There is no
1514 formula for what makes the doujinshi sufficiently "different." But they
1515 must be different if they are to be considered true doujinshi. Indeed,
1516 there are committees that review doujinshi for inclusion within shows
1517 and reject any copycat comic that is merely a copy.
1520 These copycat comics are not a tiny part of the manga market. They are
1521 huge. More than
33,
000 "circles" of creators from across Japan produce
1522 these bits of Walt Disney creativity. More than
450,
000 Japanese come
1523 together twice a year, in the largest public gathering in the country,
1524 to exchange and sell them. This market exists in parallel to the
1525 mainstream commercial manga market. In some ways, it obviously
1526 competes with that market, but there is no sustained effort by those
1527 who control the commercial manga market to shut the doujinshi market
1528 down. It flourishes, despite the competition and despite the law.
1531 The most puzzling feature of the doujinshi market, for those trained
1532 in the law, at least, is that it is allowed to exist at all. Under
1533 Japanese copyright law, which in this respect (on paper) mirrors
1534 American copyright law, the doujinshi market is an illegal
1535 one. Doujinshi are plainly "derivative works." There is no general
1536 practice by doujinshi artists of securing the permission of the manga
1537 creators. Instead, the practice is simply to take and modify the
1538 creations of others, as Walt Disney did with
<citetitle>Steamboat Bill,
1539 Jr
</citetitle>. Under both Japanese and American law, that "taking" without
1540 the permission of the original copyright owner is illegal. It is an
1541 infringement of the original copyright to make a copy or a derivative
1542 work without the original copyright owner's permission.
1544 <indexterm id=
"idxwinickjudd" class='startofrange'
>
1545 <primary>Winick, Judd
</primary>
1548 Yet this illegal market exists and indeed flourishes in Japan, and in
1549 the view of many, it is precisely because it exists that Japanese manga
1550 flourish. As American graphic novelist Judd Winick said to me, "The
1551 early days of comics in America are very much like what's going on
1552 in Japan now.
… American comics were born out of copying each
1553 <!-- PAGE BREAK 40 -->
1554 other.
… That's how [the artists] learn to draw
—by going into comic
1555 books and not tracing them, but looking at them and copying them"
1556 and building from them.
<footnote><para>
1558 For an excellent history, see Scott McCloud,
<citetitle>Reinventing Comics
</citetitle> (New
1559 York: Perennial,
2000).
1563 American comics now are quite different, Winick explains, in part
1564 because of the legal difficulty of adapting comics the way doujinshi are
1565 allowed. Speaking of Superman, Winick told me, "there are these rules
1566 and you have to stick to them." There are things Superman "cannot"
1567 do. "As a creator, it's frustrating having to stick to some parameters
1568 which are fifty years old."
1570 <indexterm startref=
"idxwinickjudd" class='endofrange'
/>
1572 The norm in Japan mitigates this legal difficulty. Some say it is
1573 precisely the benefit accruing to the Japanese manga market that
1574 explains the mitigation. Temple University law professor Salil Mehra,
1575 for example, hypothesizes that the manga market accepts these
1576 technical violations because they spur the manga market to be more
1577 wealthy and productive. Everyone would be worse off if doujinshi were
1578 banned, so the law does not ban doujinshi.
<footnote><para>
1580 See Salil K. Mehra, "Copyright and Comics in Japan: Does Law Explain
1581 Why All the Comics My Kid Watches Are Japanese Imports?"
<citetitle>Rutgers Law
1582 Review
</citetitle> 55 (
2002):
155,
182.
"[T]here might be a collective economic
1583 rationality that would lead manga and anime artists to forgo bringing
1584 legal actions for infringement. One hypothesis is that all manga
1585 artists may be better off collectively if they set aside their
1586 individual self-interest and decide not to press their legal
1587 rights. This is essentially a prisoner's dilemma solved."
1591 The problem with this story, however, as Mehra plainly acknowledges,
1592 is that the mechanism producing this laissez faire response is not
1593 clear. It may well be that the market as a whole is better off if
1594 doujinshi are permitted rather than banned, but that doesn't explain
1595 why individual copyright owners don't sue nonetheless. If the law has
1596 no general exception for doujinshi, and indeed in some cases
1597 individual manga artists have sued doujinshi artists, why is there not
1598 a more general pattern of blocking this "free taking" by the doujinshi
1602 I spent four wonderful months in Japan, and I asked this question
1603 as often as I could. Perhaps the best account in the end was offered by
1604 a friend from a major Japanese law firm. "We don't have enough
1605 lawyers," he told me one afternoon. There "just aren't enough resources
1606 to prosecute cases like this."
1609 This is a theme to which we will return: that regulation by law is a
1610 function of both the words on the books and the costs of making those
1611 words have effect. For now, focus on the obvious question that is
1612 begged: Would Japan be better off with more lawyers? Would manga
1613 <!-- PAGE BREAK 41 -->
1614 be richer if doujinshi artists were regularly prosecuted? Would the
1615 Japanese gain something important if they could end this practice of
1616 uncompensated sharing? Does piracy here hurt the victims of the
1617 piracy, or does it help them? Would lawyers fighting this piracy help
1618 their clients or hurt them?
1619 Let's pause for a moment.
1622 If you're like I was a decade ago, or like most people are when they
1623 first start thinking about these issues, then just about now you should
1624 be puzzled about something you hadn't thought through before.
1627 We live in a world that celebrates "property." I am one of those
1628 celebrants. I believe in the value of property in general, and I also
1629 believe in the value of that weird form of property that lawyers call
1630 "intellectual property."
<footnote><para>
1632 The term
<citetitle>intellectual property
</citetitle> is of relatively recent origin. See
1633 Siva Vaidhyanathan,
<citetitle>Copyrights and Copywrongs
</citetitle>,
11 (New York: New York
1634 University Press,
2001). See also Lawrence Lessig,
<citetitle>The Future of Ideas
</citetitle>
1635 (New York: Random House,
2001),
293 n.
26. The term accurately
1636 describes a set of "property" rights
—copyright, patents,
1637 trademark, and trade-secret
—but the nature of those rights is
1639 <indexterm><primary>Vaidhyanathan, Siva
</primary></indexterm>
1641 A large, diverse society cannot survive without property; a large,
1642 diverse, and modern society cannot flourish without intellectual
1646 But it takes just a second's reflection to realize that there is
1647 plenty of value out there that "property" doesn't capture. I don't
1648 mean "money can't buy you love," but rather, value that is plainly
1649 part of a process of production, including commercial as well as
1650 noncommercial production. If Disney animators had stolen a set of
1651 pencils to draw Steamboat Willie, we'd have no hesitation in
1652 condemning that taking as wrong
— even though trivial, even if
1653 unnoticed. Yet there was nothing wrong, at least under the law of the
1654 day, with Disney's taking from Buster Keaton or from the Brothers
1655 Grimm. There was nothing wrong with the taking from Keaton because
1656 Disney's use would have been considered "fair." There was nothing
1657 wrong with the taking from the Grimms because the Grimms' work was in
1661 Thus, even though the things that Disney took
—or more generally,
1662 the things taken by anyone exercising Walt Disney creativity
—are
1663 valuable, our tradition does not treat those takings as wrong. Some
1665 <!-- PAGE BREAK 42 -->
1666 things remain free for the taking within a free culture, and that
1670 The same with the doujinshi culture. If a doujinshi artist broke into
1671 a publisher's office and ran off with a thousand copies of his latest
1672 work
—or even one copy
—without paying, we'd have no hesitation in
1673 saying the artist was wrong. In addition to having trespassed, he would
1674 have stolen something of value. The law bans that stealing in whatever
1675 form, whether large or small.
1678 Yet there is an obvious reluctance, even among Japanese lawyers, to
1679 say that the copycat comic artists are "stealing." This form of Walt
1680 Disney creativity is seen as fair and right, even if lawyers in
1681 particular find it hard to say why.
1684 It's the same with a thousand examples that appear everywhere once you
1685 begin to look. Scientists build upon the work of other scientists
1686 without asking or paying for the privilege. ("Excuse me, Professor
1687 Einstein, but may I have permission to use your theory of relativity
1688 to show that you were wrong about quantum physics?") Acting companies
1689 perform adaptations of the works of Shakespeare without securing
1690 permission from anyone. (Does
<emphasis>anyone
</emphasis> believe
1691 Shakespeare would be better spread within our culture if there were a
1692 central Shakespeare rights clearinghouse that all productions of
1693 Shakespeare must appeal to first?) And Hollywood goes through cycles
1694 with a certain kind of movie: five asteroid films in the late
1990s;
1695 two volcano disaster films in
1997.
1698 Creators here and everywhere are always and at all times building
1699 upon the creativity that went before and that surrounds them now.
1700 That building is always and everywhere at least partially done without
1701 permission and without compensating the original creator. No society,
1702 free or controlled, has ever demanded that every use be paid for or that
1703 permission for Walt Disney creativity must always be sought. Instead,
1704 every society has left a certain bit of its culture free for the taking
—free
1705 societies more fully than unfree, perhaps, but all societies to some degree.
1706 <!-- PAGE BREAK 43 -->
1709 The hard question is therefore not
<emphasis>whether
</emphasis> a
1710 culture is free. All cultures are free to some degree. The hard
1711 question instead is "
<emphasis>How
</emphasis> free is this culture?"
1712 How much, and how broadly, is the culture free for others to take and
1713 build upon? Is that freedom limited to party members? To members of
1714 the royal family? To the top ten corporations on the New York Stock
1715 Exchange? Or is that freedom spread broadly? To artists generally,
1716 whether affiliated with the Met or not? To musicians generally,
1717 whether white or not? To filmmakers generally, whether affiliated with
1721 Free cultures are cultures that leave a great deal open for others to
1722 build upon; unfree, or permission, cultures leave much less. Ours was a
1723 free culture. It is becoming much less so.
1726 <!-- PAGE BREAK 44 -->
1728 <chapter label=
"2" id=
"mere-copyists">
1729 <title>CHAPTER TWO: "Mere Copyists"
</title>
1730 <indexterm id=
"idxphotography" class='startofrange'
>
1731 <primary>photography
</primary>
1734 In
1839, Louis Daguerre invented the first practical technology for
1735 producing what we would call "photographs." Appropriately enough, they
1736 were called "daguerreotypes." The process was complicated and
1737 expensive, and the field was thus limited to professionals and a few
1738 zealous and wealthy amateurs. (There was even an American Daguerre
1739 Association that helped regulate the industry, as do all such
1740 associations, by keeping competition down so as to keep prices up.)
1741 <indexterm><primary>Daguerre, Louis
</primary></indexterm>
1744 Yet despite high prices, the demand for daguerreotypes was strong.
1745 This pushed inventors to find simpler and cheaper ways to make
1746 "automatic pictures." William Talbot soon discovered a process for
1747 making "negatives." But because the negatives were glass, and had to
1748 be kept wet, the process still remained expensive and cumbersome. In
1749 the
1870s, dry plates were developed, making it easier to separate the
1750 taking of a picture from its developing. These were still plates of
1751 glass, and thus it was still not a process within reach of most
1753 <indexterm><primary>Talbot, William
</primary></indexterm>
1755 <indexterm id=
"idxeastmangeorge" class='startofrange'
>
1756 <primary>Eastman, George
</primary>
1759 The technological change that made mass photography possible
1760 didn't happen until
1888, and was the creation of a single man. George
1761 <!-- PAGE BREAK 45 -->
1762 Eastman, himself an amateur photographer, was frustrated by the
1763 technology of photographs made with plates. In a flash of insight (so
1764 to speak), Eastman saw that if the film could be made to be flexible,
1765 it could be held on a single spindle. That roll could then be sent to
1766 a developer, driving the costs of photography down substantially. By
1767 lowering the costs, Eastman expected he could dramatically broaden the
1768 population of photographers.
1771 Eastman developed flexible, emulsion-coated paper film and placed
1772 rolls of it in small, simple cameras: the Kodak. The device was
1773 marketed on the basis of its simplicity. "You press the button and we
1774 do the rest."
<footnote><para>
1776 Reese V. Jenkins,
<citetitle>Images and Enterprise
</citetitle> (Baltimore: Johns Hopkins University Press,
1975),
112.
1777 </para></footnote> As he described in
<citetitle>The Kodak Primer
</citetitle>:
1778 <indexterm><primary>Kodak Primer, The (Eastman)
</primary></indexterm>
1782 The principle of the Kodak system is the separation of the work that
1783 any person whomsoever can do in making a photograph, from the work
1784 that only an expert can do.
… We furnish anybody, man, woman or
1785 child, who has sufficient intelligence to point a box straight and
1786 press a button, with an instrument which altogether removes from the
1787 practice of photography the necessity for exceptional facilities or,
1788 in fact, any special knowledge of the art. It can be employed without
1789 preliminary study, without a darkroom and without
1790 chemicals.
<footnote>
1793 Brian Coe,
<citetitle>The Birth of Photography
</citetitle> (New York: Taplinger Publishing,
1795 <indexterm><primary>Coe, Brian
</primary></indexterm>
1800 For $
25, anyone could make pictures. The camera came preloaded
1801 with film, and when it had been used, the camera was returned to an
1802 Eastman factory, where the film was developed. Over time, of course,
1803 the cost of the camera and the ease with which it could be used both
1804 improved. Roll film thus became the basis for the explosive growth of
1805 popular photography. Eastman's camera first went on sale in
1888; one
1806 year later, Kodak was printing more than six thousand negatives a day.
1807 From
1888 through
1909, while industrial production was rising by
4.7
1808 percent, photographic equipment and material sales increased by
11
1809 percent.
<footnote><para>
1812 </para></footnote> Eastman Kodak's sales during the same period experienced
1813 an average annual increase of over
17 percent.
<footnote><para>
1815 Based on a chart in Jenkins, p.
178.
1818 <indexterm><primary>Coe, Brian
</primary></indexterm>
1821 <!-- PAGE BREAK 46 -->
1822 The real significance of Eastman's invention, however, was not
1823 economic. It was social. Professional photography gave individuals a
1824 glimpse of places they would never otherwise see. Amateur photography
1825 gave them the ability to record their own lives in a way they had
1826 never been able to do before. As author Brian Coe notes, "For the
1827 first time the snapshot album provided the man on the street with a
1828 permanent record of his family and its activities.
… For the first
1829 time in history there exists an authentic visual record of the
1830 appearance and activities of the common man made without [literary]
1831 interpretation or bias."
<footnote><para>
1837 In this way, the Kodak camera and film were technologies of
1838 expression. The pencil or paintbrush was also a technology of
1839 expression, of course. But it took years of training before they could
1840 be deployed by amateurs in any useful or effective way. With the
1841 Kodak, expression was possible much sooner and more simply. The
1842 barrier to expression was lowered. Snobs would sneer at its "quality";
1843 professionals would discount it as irrelevant. But watch a child study
1844 how best to frame a picture and you get a sense of the experience of
1845 creativity that the Kodak enabled. Democratic tools gave ordinary
1846 people a way to express themselves more easily than any tools could
1850 What was required for this technology to flourish? Obviously,
1851 Eastman's genius was an important part. But also important was the
1852 legal environment within which Eastman's invention grew. For early in
1853 the history of photography, there was a series of judicial decisions
1854 that could well have changed the course of photography substantially.
1855 Courts were asked whether the photographer, amateur or professional,
1856 required permission before he could capture and print whatever image
1857 he wanted. Their answer was no.
<footnote><para>
1859 For illustrative cases, see, for example,
<citetitle>Pavesich
</citetitle>
1860 v.
<citetitle>N.E. Life Ins. Co
</citetitle>.,
50 S.E.
68 (Ga.
1905);
1861 <citetitle>Foster-Milburn Co
</citetitle>. v.
<citetitle>Chinn
</citetitle>,
123090 S.W.
364,
366
1862 (Ky.
1909);
<citetitle>Corliss
</citetitle> v.
<citetitle>Walker
</citetitle>,
64 F.
280 (Mass.
1867 The arguments in favor of requiring permission will sound surprisingly
1868 familiar. The photographer was "taking" something from the person or
1869 building whose photograph he shot
—pirating something of
1870 value. Some even thought he was taking the target's soul. Just as
1871 Disney was not free to take the pencils that his animators used to
1873 <!-- PAGE BREAK 47 -->
1874 Mickey, so, too, should these photographers not be free to take images
1875 that they thought valuable.
1877 <indexterm><primary>Brandeis, Louis D.
</primary></indexterm>
1879 On the other side was an argument that should be familiar, as well.
1880 Sure, there may be something of value being used. But citizens should
1881 have the right to capture at least those images that stand in public view.
1882 (Louis Brandeis, who would become a Supreme Court Justice, thought
1883 the rule should be different for images from private spaces.
<footnote>
1886 Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy,"
1887 <citetitle>Harvard Law Review
</citetitle> 4 (
1890):
193.
1888 <indexterm><primary>Brandeis, Louis D.
</primary></indexterm>
1889 <indexterm><primary>Warren, Samuel D.
</primary></indexterm>
1890 </para></footnote>) It may be that this means that the photographer
1891 gets something for nothing. Just as Disney could take inspiration from
1892 <citetitle>Steamboat Bill, Jr
</citetitle>. or the Brothers Grimm, the photographer should be
1893 free to capture an image without compensating the source.
1896 Fortunately for Mr. Eastman, and for photography in general, these
1897 early decisions went in favor of the pirates. In general, no
1898 permission would be required before an image could be captured and
1899 shared with others. Instead, permission was presumed. Freedom was the
1900 default. (The law would eventually craft an exception for famous
1901 people: commercial photographers who snap pictures of famous people
1902 for commercial purposes have more restrictions than the rest of
1903 us. But in the ordinary case, the image can be captured without
1904 clearing the rights to do the capturing.
<footnote><para>
1906 See Melville B. Nimmer, "The Right of Publicity,"
<citetitle>Law and Contemporary
1907 Problems
</citetitle> 19 (
1954):
203; William L. Prosser,
"Privacy," <citetitle>California Law
1908 Review
</citetitle> 48 (
1960)
398–407;
<citetitle>White
</citetitle> v.
<citetitle>Samsung Electronics America,
1909 Inc
</citetitle>.,
971 F.
2d
1395 (
9th Cir.
1992), cert. denied,
508 U.S.
951
1914 We can only speculate about how photography would have developed had
1915 the law gone the other way. If the presumption had been against the
1916 photographer, then the photographer would have had to demonstrate
1917 permission. Perhaps Eastman Kodak would have had to demonstrate
1918 permission, too, before it developed the film upon which images were
1919 captured. After all, if permission were not granted, then Eastman
1920 Kodak would be benefiting from the "theft" committed by the
1921 photographer. Just as Napster benefited from the copyright
1922 infringements committed by Napster users, Kodak would be benefiting
1923 from the "image-right" infringement of its photographers. We could
1924 imagine the law then requiring that some form of permission be
1925 demonstrated before a company developed pictures. We could imagine a
1926 system developing to demonstrate that permission.
1930 <!-- PAGE BREAK 48 -->
1931 But though we could imagine this system of permission, it would be
1932 very hard to see how photography could have flourished as it did if
1933 the requirement for permission had been built into the rules that
1934 govern it. Photography would have existed. It would have grown in
1935 importance over time. Professionals would have continued to use the
1936 technology as they did
—since professionals could have more
1937 easily borne the burdens of the permission system. But the spread of
1938 photography to ordinary people would not have occurred. Nothing like
1939 that growth would have been realized. And certainly, nothing like that
1940 growth in a democratic technology of expression would have been
1941 realized. If you drive through San Francisco's Presidio, you might
1942 see two gaudy yellow school buses painted over with colorful and
1943 striking images, and the logo "Just Think!" in place of the name of a
1944 school. But there's little that's "just" cerebral in the projects that
1945 these busses enable. These buses are filled with technologies that
1946 teach kids to tinker with film. Not the film of Eastman. Not even the
1947 film of your VCR. Rather the "film" of digital cameras. Just Think!
1948 is a project that enables kids to make films, as a way to understand
1949 and critique the filmed culture that they find all around them. Each
1950 year, these busses travel to more than thirty schools and enable three
1951 hundred to five hundred children to learn something about media by
1952 doing something with media. By doing, they think. By tinkering, they
1955 <indexterm startref=
"idxeastmangeorge" class='endofrange'
/>
1956 <indexterm startref=
"idxphotography" class='endofrange'
/>
1958 These buses are not cheap, but the technology they carry is
1959 increasingly so. The cost of a high-quality digital video system has
1960 fallen dramatically. As one analyst puts it, "Five years ago, a good
1961 real-time digital video editing system cost $
25,
000. Today you can get
1962 professional quality for $
595."
<footnote><para>
1964 H. Edward Goldberg, "Essential Presentation Tools: Hardware and
1965 Software You Need to Create Digital Multimedia Presentations,"
1966 cadalyst, February
2002, available at
1967 <ulink url=
"http://free-culture.cc/notes/">link #
7</ulink>.
1969 These buses are filled with technology that would have cost hundreds
1970 of thousands just ten years ago. And it is now feasible to imagine not
1971 just buses like this, but classrooms across the country where kids are
1972 learning more and more of something teachers call "media literacy."
1975 <!-- PAGE BREAK 49 -->
1976 "Media literacy," as Dave Yanofsky, the executive director of Just
1977 Think!, puts it, "is the ability
… to understand, analyze, and
1978 deconstruct media images. Its aim is to make [kids] literate about the
1979 way media works, the way it's constructed, the way it's delivered, and
1980 the way people access it."
1981 <indexterm><primary>Yanofsky, Dave
</primary></indexterm>
1984 This may seem like an odd way to think about "literacy." For most
1985 people, literacy is about reading and writing. Faulkner and Hemingway
1986 and noticing split infinitives are the things that "literate" people know
1990 Maybe. But in a world where children see on average
390 hours of
1991 television commercials per year, or between
20,
000 and
45,
000
1992 commercials generally,
<footnote><para>
1994 Judith Van Evra,
<citetitle>Television and Child Development
</citetitle> (Hillsdale, N.J.:
1995 Lawrence Erlbaum Associates,
1990); "Findings on Family and TV
1996 Study,"
<citetitle>Denver Post
</citetitle>,
25 May
1997, B6.
1998 it is increasingly important to understand the "grammar" of media. For
1999 just as there is a grammar for the written word, so, too, is there one
2000 for media. And just as kids learn how to write by writing lots of
2001 terrible prose, kids learn how to write media by constructing lots of
2002 (at least at first) terrible media.
2005 A growing field of academics and activists sees this form of literacy
2006 as crucial to the next generation of culture. For though anyone who
2007 has written understands how difficult writing is
—how difficult
2008 it is to sequence the story, to keep a reader's attention, to craft
2009 language to be understandable
—few of us have any real sense of
2010 how difficult media is. Or more fundamentally, few of us have a sense
2011 of how media works, how it holds an audience or leads it through a
2012 story, how it triggers emotion or builds suspense.
2015 It took filmmaking a generation before it could do these things well.
2016 But even then, the knowledge was in the filming, not in writing about
2017 the film. The skill came from experiencing the making of a film, not
2018 from reading a book about it. One learns to write by writing and then
2019 reflecting upon what one has written. One learns to write with images
2020 by making them and then reflecting upon what one has created.
2022 <indexterm><primary>Crichton, Michael
</primary></indexterm>
2024 This grammar has changed as media has changed. When it was just film,
2025 as Elizabeth Daley, executive director of the University of Southern
2026 California's Annenberg Center for Communication and dean of the
2028 <!-- PAGE BREAK 50 -->
2029 USC School of Cinema-Television, explained to me, the grammar was
2030 about "the placement of objects, color,
… rhythm, pacing, and
2034 Interview with Elizabeth Daley and Stephanie Barish,
13 December
2036 <indexterm><primary>Barish, Stephanie
</primary></indexterm>
2037 <indexterm><primary>Daley, Elizabeth
</primary></indexterm>
2039 But as computers open up an interactive space where a story is
2040 "played" as well as experienced, that grammar changes. The simple
2041 control of narrative is lost, and so other techniques are necessary. Author
2042 Michael Crichton had mastered the narrative of science fiction.
2043 But when he tried to design a computer game based on one of his
2044 works, it was a new craft he had to learn. How to lead people through
2045 a game without their feeling they have been led was not obvious, even
2046 to a wildly successful author.
<footnote><para>
2048 See Scott Steinberg, "Crichton Gets Medieval on PCs," E!online,
4
2049 November
2000, available at
2050 <ulink url=
"http://free-culture.cc/notes/">link #
8</ulink>; "Timeline,"
22 November
2000,
2052 <ulink url=
"http://free-culture.cc/notes/">link #
9</ulink>.
2055 <indexterm><primary>computer games
</primary></indexterm>
2057 This skill is precisely the craft a filmmaker learns. As Daley
2058 describes, "people are very surprised about how they are led through a
2059 film. [I]t is perfectly constructed to keep you from seeing it, so you
2060 have no idea. If a filmmaker succeeds you do not know how you were
2061 led." If you know you were led through a film, the film has failed.
2064 Yet the push for an expanded literacy
—one that goes beyond text
2065 to include audio and visual elements
—is not about making better
2066 film directors. The aim is not to improve the profession of
2067 filmmaking at all. Instead, as Daley explained,
2071 From my perspective, probably the most important digital divide
2072 is not access to a box. It's the ability to be empowered with the
2073 language that that box works in. Otherwise only a very few people
2074 can write with this language, and all the rest of us are reduced to
2079 "Read-only." Passive recipients of culture produced elsewhere.
2080 Couch potatoes. Consumers. This is the world of media from the
2084 The twenty-first century could be different. This is the crucial
2085 point: It could be both read and write. Or at least reading and better
2086 understanding the craft of writing. Or best, reading and understanding
2087 the tools that enable the writing to lead or mislead. The aim of any
2089 <!-- PAGE BREAK 51 -->
2090 and this literacy in particular, is to "empower people to choose the
2091 appropriate language for what they need to create or
2095 Interview with Daley and Barish.
2096 <indexterm><primary>Barish, Stephanie
</primary></indexterm>
2097 </para></footnote> It is to enable students "to communicate in the
2098 language of the twenty-first century."
<footnote><para>
2103 <indexterm><primary>Barish, Stephanie
</primary></indexterm>
2105 As with any language, this language comes more easily to some than to
2106 others. It doesn't necessarily come more easily to those who excel in
2107 written language. Daley and Stephanie Barish, director of the
2108 Institute for Multimedia Literacy at the Annenberg Center, describe
2109 one particularly poignant example of a project they ran in a high
2110 school. The high school was a very poor inner-city Los Angeles
2111 school. In all the traditional measures of success, this school was a
2112 failure. But Daley and Barish ran a program that gave kids an
2113 opportunity to use film to express meaning about something the
2114 students know something about
—gun violence.
2117 The class was held on Friday afternoons, and it created a relatively
2118 new problem for the school. While the challenge in most classes was
2119 getting the kids to come, the challenge in this class was keeping them
2120 away. The "kids were showing up at
6 A.M. and leaving at
5 at night,"
2121 said Barish. They were working harder than in any other class to do
2122 what education should be about
—learning how to express themselves.
2125 Using whatever "free web stuff they could find," and relatively simple
2126 tools to enable the kids to mix "image, sound, and text," Barish said
2127 this class produced a series of projects that showed something about
2128 gun violence that few would otherwise understand. This was an issue
2129 close to the lives of these students. The project "gave them a tool
2130 and empowered them to be able to both understand it and talk about
2131 it," Barish explained. That tool succeeded in creating
2132 expression
—far more successfully and powerfully than could have
2133 been created using only text. "If you had said to these students, `you
2134 have to do it in text,' they would've just thrown their hands up and
2135 gone and done something else," Barish described, in part, no doubt,
2136 because expressing themselves in text is not something these students
2137 can do well. Yet neither is text a form in which
2138 <emphasis>these
</emphasis> ideas can be expressed well. The power of
2139 this message depended upon its connection to this form of expression.
2143 <!-- PAGE BREAK 52 -->
2144 "But isn't education about teaching kids to write?" I asked. In part,
2145 of course, it is. But why are we teaching kids to write? Education,
2146 Daley explained, is about giving students a way of "constructing
2147 meaning." To say that that means just writing is like saying teaching
2148 writing is only about teaching kids how to spell. Text is one
2149 part
—and increasingly, not the most powerful part
—of
2150 constructing meaning. As Daley explained in the most moving part of
2155 What you want is to give these students ways of constructing
2156 meaning. If all you give them is text, they're not going to do it.
2157 Because they can't. You know, you've got Johnny who can look at a
2158 video, he can play a video game, he can do graffiti all over your
2159 walls, he can take your car apart, and he can do all sorts of other
2160 things. He just can't read your text. So Johnny comes to school and
2161 you say, "Johnny, you're illiterate. Nothing you can do matters."
2162 Well, Johnny then has two choices: He can dismiss you or he [can]
2163 dismiss himself. If his ego is healthy at all, he's going to dismiss
2164 you. [But i]nstead, if you say, "Well, with all these things that you
2165 can do, let's talk about this issue. Play for me music that you think
2166 reflects that, or show me images that you think reflect that, or draw
2167 for me something that reflects that." Not by giving a kid a video
2168 camera and
… saying, "Let's go have fun with the video camera and
2169 make a little movie." But instead, really help you take these elements
2170 that you understand, that are your language, and construct meaning
2171 about the topic.
…
2174 That empowers enormously. And then what happens, of
2175 course, is eventually, as it has happened in all these classes, they
2176 bump up against the fact, "I need to explain this and I really need
2177 to write something." And as one of the teachers told Stephanie,
2178 they would rewrite a paragraph
5,
6,
7,
8 times, till they got it right.
2181 Because they needed to. There was a reason for doing it. They
2182 needed to say something, as opposed to just jumping through
2183 your hoops. They actually needed to use a language that they
2184 <!-- PAGE BREAK 53 -->
2185 didn't speak very well. But they had come to understand that they
2186 had a lot of power with this language."
2190 When two planes crashed into the World Trade Center, another into the
2191 Pentagon, and a fourth into a Pennsylvania field, all media around the
2192 world shifted to this news. Every moment of just about every day for
2193 that week, and for weeks after, television in particular, and media
2194 generally, retold the story of the events we had just witnessed. The
2195 telling was a retelling, because we had seen the events that were
2196 described. The genius of this awful act of terrorism was that the
2197 delayed second attack was perfectly timed to assure that the whole
2198 world would be watching.
2201 These retellings had an increasingly familiar feel. There was music
2202 scored for the intermissions, and fancy graphics that flashed across
2203 the screen. There was a formula to interviews. There was "balance,"
2204 and seriousness. This was news choreographed in the way we have
2205 increasingly come to expect it, "news as entertainment," even if the
2206 entertainment is tragedy.
2208 <indexterm><primary>ABC
</primary></indexterm>
2209 <indexterm><primary>CBS
</primary></indexterm>
2211 But in addition to this produced news about the "tragedy of September
2212 11," those of us tied to the Internet came to see a very different
2213 production as well. The Internet was filled with accounts of the same
2214 events. Yet these Internet accounts had a very different flavor. Some
2215 people constructed photo pages that captured images from around the
2216 world and presented them as slide shows with text. Some offered open
2217 letters. There were sound recordings. There was anger and frustration.
2218 There were attempts to provide context. There was, in short, an
2219 extraordinary worldwide barn raising, in the sense Mike Godwin uses
2220 the term in his book
<citetitle>Cyber Rights
</citetitle>, around a news event that had
2221 captured the attention of the world. There was ABC and CBS, but there
2222 was also the Internet.
2225 I don't mean simply to praise the Internet
—though I do think the
2226 people who supported this form of speech should be praised. I mean
2227 instead to point to a significance in this form of speech. For like a
2228 Kodak, the Internet enables people to capture images. And like in a
2230 <!-- PAGE BREAK 54 -->
2231 by a student on the "Just Think!" bus, the visual images could be mixed
2235 But unlike any technology for simply capturing images, the Internet
2236 allows these creations to be shared with an extraordinary number of
2237 people, practically instantaneously. This is something new in our
2238 tradition
—not just that culture can be captured mechanically,
2239 and obviously not just that events are commented upon critically, but
2240 that this mix of captured images, sound, and commentary can be widely
2241 spread practically instantaneously.
2244 September
11 was not an aberration. It was a beginning. Around the
2245 same time, a form of communication that has grown dramatically was
2246 just beginning to come into public consciousness: the Web-log, or
2247 blog. The blog is a kind of public diary, and within some cultures,
2248 such as in Japan, it functions very much like a diary. In those
2249 cultures, it records private facts in a public way
—it's a kind
2250 of electronic
<citetitle>Jerry Springer
</citetitle>, available anywhere in the world.
2253 But in the United States, blogs have taken on a very different
2254 character. There are some who use the space simply to talk about
2255 their private life. But there are many who use the space to engage in
2256 public discourse. Discussing matters of public import, criticizing
2257 others who are mistaken in their views, criticizing politicians about
2258 the decisions they make, offering solutions to problems we all see:
2259 blogs create the sense of a virtual public meeting, but one in which
2260 we don't all hope to be there at the same time and in which
2261 conversations are not necessarily linked. The best of the blog entries
2262 are relatively short; they point directly to words used by others,
2263 criticizing with or adding to them. They are arguably the most
2264 important form of unchoreographed public discourse that we have.
2267 That's a strong statement. Yet it says as much about our democracy as
2268 it does about blogs. This is the part of America that is most
2269 difficult for those of us who love America to accept: Our democracy
2270 has atrophied. Of course we have elections, and most of the time the
2271 courts allow those elections to count. A relatively small number of
2273 <!-- PAGE BREAK 55 -->
2274 in those elections. The cycle of these elections has become totally
2275 professionalized and routinized. Most of us think this is democracy.
2278 But democracy has never just been about elections. Democracy
2279 means rule by the people, but rule means something more than mere
2280 elections. In our tradition, it also means control through reasoned
2281 discourse. This was the idea that captured the imagination of Alexis
2282 de Tocqueville, the nineteenth-century French lawyer who wrote the
2283 most important account of early "Democracy in America." It wasn't
2284 popular elections that fascinated him
—it was the jury, an
2285 institution that gave ordinary people the right to choose life or
2286 death for other citizens. And most fascinating for him was that the
2287 jury didn't just vote about the outcome they would impose. They
2288 deliberated. Members argued about the "right" result; they tried to
2289 persuade each other of the "right" result, and in criminal cases at
2290 least, they had to agree upon a unanimous result for the process to
2291 come to an end.
<footnote><para>
2293 See, for example, Alexis de Tocqueville,
<citetitle>Democracy in America
</citetitle>,
2294 bk.
1, trans. Henry Reeve (New York: Bantam Books,
2000), ch.
16.
2298 Yet even this institution flags in American life today. And in its
2299 place, there is no systematic effort to enable citizen deliberation. Some
2300 are pushing to create just such an institution.
<footnote><para>
2302 Bruce Ackerman and James Fishkin, "Deliberation Day,"
<citetitle>Journal of
2303 Political Philosophy
</citetitle> 10 (
2) (
2002):
129.
2305 And in some towns in New England, something close to deliberation
2306 remains. But for most of us for most of the time, there is no time or
2307 place for "democratic deliberation" to occur.
2310 More bizarrely, there is generally not even permission for it to
2311 occur. We, the most powerful democracy in the world, have developed a
2312 strong norm against talking about politics. It's fine to talk about
2313 politics with people you agree with. But it is rude to argue about
2314 politics with people you disagree with. Political discourse becomes
2315 isolated, and isolated discourse becomes more extreme.
<footnote><para>
2317 Cass Sunstein,
<citetitle>Republic.com
</citetitle> (Princeton: Princeton University Press,
2001),
2318 65–80,
175,
182,
183,
192.
2319 </para></footnote> We say what our friends want to hear, and hear very
2320 little beyond what our friends say.
2323 Enter the blog. The blog's very architecture solves one part of this
2324 problem. People post when they want to post, and people read when they
2325 want to read. The most difficult time is synchronous time.
2326 Technologies that enable asynchronous communication, such as e-mail,
2327 increase the opportunity for communication. Blogs allow for public
2329 <!-- PAGE BREAK 56 -->
2330 discourse without the public ever needing to gather in a single public
2334 But beyond architecture, blogs also have solved the problem of
2335 norms. There's no norm (yet) in blog space not to talk about politics.
2336 Indeed, the space is filled with political speech, on both the right and
2337 the left. Some of the most popular sites are conservative or libertarian,
2338 but there are many of all political stripes. And even blogs that are not
2339 political cover political issues when the occasion merits.
2342 The significance of these blogs is tiny now, though not so tiny. The
2343 name Howard Dean may well have faded from the
2004 presidential race
2344 but for blogs. Yet even if the number of readers is small, the reading
2345 is having an effect.
2346 <indexterm><primary>Dean, Howard
</primary></indexterm>
2349 One direct effect is on stories that had a different life cycle in the
2350 mainstream media. The Trent Lott affair is an example. When Lott
2351 "misspoke" at a party for Senator Strom Thurmond, essentially praising
2352 Thurmond's segregationist policies, he calculated correctly that this
2353 story would disappear from the mainstream press within forty-eight
2354 hours. It did. But he didn't calculate its life cycle in blog
2355 space. The bloggers kept researching the story. Over time, more and
2356 more instances of the same "misspeaking" emerged. Finally, the story
2357 broke back into the mainstream press. In the end, Lott was forced to
2358 resign as senate majority leader.
<footnote><para>
2360 Noah Shachtman, "With Incessant Postings, a Pundit Stirs the Pot," New
2361 York Times,
16 January
2003, G5.
2363 <indexterm><primary>Lott, Trent
</primary></indexterm>
2366 This different cycle is possible because the same commercial pressures
2367 don't exist with blogs as with other ventures. Television and
2368 newspapers are commercial entities. They must work to keep attention.
2369 If they lose readers, they lose revenue. Like sharks, they must move
2373 But bloggers don't have a similar constraint. They can obsess, they
2374 can focus, they can get serious. If a particular blogger writes a
2375 particularly interesting story, more and more people link to that
2376 story. And as the number of links to a particular story increases, it
2377 rises in the ranks of stories. People read what is popular; what is
2378 popular has been selected by a very democratic process of
2379 peer-generated rankings.
2381 <indexterm id=
"idxwinerdave" class='startofrange'
>
2382 <primary>Winer, Dave
</primary>
2385 There's a second way, as well, in which blogs have a different cycle
2386 <!-- PAGE BREAK 57 -->
2387 from the mainstream press. As Dave Winer, one of the fathers of this
2388 movement and a software author for many decades, told me, another
2389 difference is the absence of a financial "conflict of interest." "I think you
2390 have to take the conflict of interest" out of journalism, Winer told me.
2391 "An amateur journalist simply doesn't have a conflict of interest, or the
2392 conflict of interest is so easily disclosed that you know you can sort of
2393 get it out of the way."
2395 <indexterm><primary>CNN
</primary></indexterm>
2397 These conflicts become more important as media becomes more
2398 concentrated (more on this below). A concentrated media can hide more
2399 from the public than an unconcentrated media can
—as CNN admitted
2400 it did after the Iraq war because it was afraid of the consequences to
2401 its own employees.
<footnote><para>
2403 Telephone interview with David Winer,
16 April
2003.
2405 It also needs to sustain a more coherent account. (In the middle of
2406 the Iraq war, I read a post on the Internet from someone who was at
2407 that time listening to a satellite uplink with a reporter in Iraq. The
2408 New York headquarters was telling the reporter over and over that her
2409 account of the war was too bleak: She needed to offer a more
2410 optimistic story. When she told New York that wasn't warranted, they
2411 told her
<emphasis>that
</emphasis> they were writing "the story.")
2413 <para> Blog space gives amateurs a way to enter the
2414 debate
—"amateur" not in the sense of inexperienced, but in the
2415 sense of an Olympic athlete, meaning not paid by anyone to give their
2416 reports. It allows for a much broader range of input into a story, as
2417 reporting on the Columbia disaster revealed, when hundreds from across
2418 the southwest United States turned to the Internet to retell what they
2419 had seen.
<footnote><para>
2421 John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of
2422 Information Online,"
<citetitle>New York Times
</citetitle>,
2 February
2003, A28; Staci
2423 D. Kramer, "Shuttle Disaster Coverage Mixed, but Strong Overall,"
2424 Online Journalism Review,
2 February
2003, available at
2425 <ulink url=
"http://free-culture.cc/notes/">link #
10</ulink>.
2427 And it drives readers to read across the range of accounts and
2428 "triangulate," as Winer puts it, the truth. Blogs, Winer says, are
2429 "communicating directly with our constituency, and the middle man is
2430 out of it"
—with all the benefits, and costs, that might entail.
2433 Winer is optimistic about the future of journalism infected
2434 with blogs. "It's going to become an essential skill," Winer predicts,
2435 for public figures and increasingly for private figures as well. It's
2436 not clear that "journalism" is happy about this
—some journalists
2437 have been told to curtail their blogging.
<footnote>
2440 See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?"
<citetitle>New
2441 York Times
</citetitle>,
29 September
2003, C4. ("Not all news organizations have
2442 been as accepting of employees who blog. Kevin Sites, a CNN
2443 correspondent in Iraq who started a blog about his reporting of the
2444 war on March
9, stopped posting
12 days later at his bosses'
2445 request. Last year Steve Olafson, a
<citetitle>Houston Chronicle
</citetitle> reporter, was
2446 fired for keeping a personal Web log, published under a pseudonym,
2447 that dealt with some of the issues and people he was covering.")
2448 <indexterm><primary>CNN
</primary></indexterm>
2450 But it is clear that we are still in transition. "A
2452 <!-- PAGE BREAK 58 -->
2453 lot of what we are doing now is warm-up exercises," Winer told me.
2454 There is a lot that must mature before this space has its mature effect.
2455 And as the inclusion of content in this space is the least infringing use
2456 of the Internet (meaning infringing on copyright), Winer said, "we will
2457 be the last thing that gets shut down."
2460 This speech affects democracy. Winer thinks that happens because "you
2461 don't have to work for somebody who controls, [for] a gatekeeper."
2462 That is true. But it affects democracy in another way as well. As
2463 more and more citizens express what they think, and defend it in
2464 writing, that will change the way people understand public issues. It
2465 is easy to be wrong and misguided in your head. It is harder when the
2466 product of your mind can be criticized by others. Of course, it is a
2467 rare human who admits that he has been persuaded that he is wrong. But
2468 it is even rarer for a human to ignore when he has been proven wrong.
2469 The writing of ideas, arguments, and criticism improves democracy.
2470 Today there are probably a couple of million blogs where such writing
2471 happens. When there are ten million, there will be something
2472 extraordinary to report.
2474 <indexterm startref=
"idxwinerdave" class='endofrange'
/>
2475 <indexterm id=
"idxbrownjohnseely" class='startofrange'
>
2476 <primary>Brown, John Seely
</primary>
2479 John Seely Brown is the chief scientist of the Xerox Corporation.
2480 His work, as his Web site describes it, is "human learning and
… the
2481 creation of knowledge ecologies for creating
… innovation."
2484 Brown thus looks at these technologies of digital creativity a bit
2485 differently from the perspectives I've sketched so far. I'm sure he
2486 would be excited about any technology that might improve
2487 democracy. But his real excitement comes from how these technologies
2491 As Brown believes, we learn by tinkering. When "a lot of us grew up,"
2492 he explains, that tinkering was done "on motorcycle engines, lawnmower
2493 engines, automobiles, radios, and so on." But digital technologies
2494 enable a different kind of tinkering
—with abstract ideas though
2495 in concrete form. The kids at Just Think! not only think about how a
2496 commercial portrays a politician; using digital technology, they can
2497 <!-- PAGE BREAK 59 -->
2498 take the commercial apart and manipulate it, tinker with it to see how
2499 it does what it does. Digital technologies launch a kind of bricolage,
2500 or "free collage," as Brown calls it. Many get to add to or transform
2501 the tinkering of many others.
2504 The best large-scale example of this kind of tinkering so far is free
2505 software or open-source software (FS/OSS). FS/OSS is software whose
2506 source code is shared. Anyone can download the technology that makes a
2507 FS/OSS program run. And anyone eager to learn how a particular bit of
2508 FS/OSS technology works can tinker with the code.
2511 This opportunity creates a "completely new kind of learning platform,"
2512 as Brown describes. "As soon as you start doing that, you
…
2513 unleash a free collage on the community, so that other people can
2514 start looking at your code, tinkering with it, trying it out, seeing
2515 if they can improve it." Each effort is a kind of
2516 apprenticeship. "Open source becomes a major apprenticeship platform."
2519 In this process, "the concrete things you tinker with are abstract.
2520 They are code." Kids are "shifting to the ability to tinker in the
2521 abstract, and this tinkering is no longer an isolated activity that
2522 you're doing in your garage. You are tinkering with a community
2523 platform.
… You are tinkering with other people's stuff. The more
2524 you tinker the more you improve." The more you improve, the more you
2528 This same thing happens with content, too. And it happens in the same
2529 collaborative way when that content is part of the Web. As Brown puts
2530 it, "the Web [is] the first medium that truly honors multiple forms of
2531 intelligence." Earlier technologies, such as the typewriter or word
2532 processors, helped amplify text. But the Web amplifies much more than
2533 text. "The Web
… says if you are musical, if you are artistic, if
2534 you are visual, if you are interested in film
… [then] there is a
2535 lot you can start to do on this medium. [It] can now amplify and honor
2536 these multiple forms of intelligence."
2538 <indexterm><primary>Barish, Stephanie
</primary></indexterm>
2540 Brown is talking about what Elizabeth Daley, Stephanie Barish, and
2541 Just Think! teach: that this tinkering with culture teaches as well
2543 <!-- PAGE BREAK 60 -->
2544 as creates. It develops talents differently, and it builds a different
2545 kind of recognition.
2548 Yet the freedom to tinker with these objects is not guaranteed.
2549 Indeed, as we'll see through the course of this book, that freedom is
2550 increasingly highly contested. While there's no doubt that your father
2551 had the right to tinker with the car engine, there's great doubt that
2552 your child will have the right to tinker with the images she finds all
2553 around. The law and, increasingly, technology interfere with a
2554 freedom that technology, and curiosity, would otherwise ensure.
2557 These restrictions have become the focus of researchers and scholars.
2558 Professor Ed Felten of Princeton (whom we'll see more of in chapter
2559 <xref xrefstyle=
"select: labelnumber" linkend=
"property-i"/>)
2560 has developed a powerful argument in favor of the "right to
2561 tinker" as it applies to computer science and to knowledge in
2562 general.
<footnote><para>
2564 See, for example, Edward Felten and Andrew Appel, "Technological Access
2565 Control Interferes with Noninfringing Scholarship,"
<citetitle>Communications
2566 of the Association for Computer Machinery
</citetitle> 43 (
2000):
9.
2568 But Brown's concern is earlier, or younger, or more fundamental. It is
2569 about the learning that kids can do, or can't do, because of the law.
2572 "This is where education in the twenty-first century is going," Brown
2573 explains. We need to "understand how kids who grow up digital think
2577 "Yet," as Brown continued, and as the balance of this book will
2578 evince, "we are building a legal system that completely suppresses the
2579 natural tendencies of today's digital kids.
… We're building an
2580 architecture that unleashes
60 percent of the brain [and] a legal
2581 system that closes down that part of the brain."
2583 <indexterm startref=
"idxbrownjohnseely" class='endofrange'
/>
2585 We're building a technology that takes the magic of Kodak, mixes
2586 moving images and sound, and adds a space for commentary and an
2587 opportunity to spread that creativity everywhere. But we're building
2588 the law to close down that technology.
2591 "No way to run a culture," as Brewster Kahle, whom we'll meet in
2592 chapter
<xref xrefstyle=
"select: labelnumber" linkend=
"collectors"/>,
2593 quipped to me in a rare moment of despondence.
2595 <!-- PAGE BREAK 61 -->
2597 <chapter label=
"3" id=
"catalogs">
2598 <title>CHAPTER THREE: Catalogs
</title>
2599 <indexterm><primary>RPI
</primary><see>Rensselaer Polytechnic Institute (RPI)
</see></indexterm>
2600 <indexterm id=
"idxrensselaer" class='startofrange'
>
2601 <primary>Rensselaer Polytechnic Institute (RPI)
</primary>
2604 In the fall of
2002, Jesse Jordan of Oceanside, New York, enrolled as
2605 a freshman at Rensselaer Polytechnic Institute, in Troy, New York.
2606 His major at RPI was information technology. Though he is not a
2607 programmer, in October Jesse decided to begin to tinker with search
2608 engine technology that was available on the RPI network.
2611 RPI is one of America's foremost technological research institutions.
2612 It offers degrees in fields ranging from architecture and engineering
2613 to information sciences. More than
65 percent of its five thousand
2614 undergraduates finished in the top
10 percent of their high school
2615 class. The school is thus a perfect mix of talent and experience to
2616 imagine and then build, a generation for the network age.
2619 RPI's computer network links students, faculty, and administration to
2620 one another. It also links RPI to the Internet. Not everything
2621 available on the RPI network is available on the Internet. But the
2622 network is designed to enable students to get access to the Internet,
2623 as well as more intimate access to other members of the RPI community.
2626 Search engines are a measure of a network's intimacy. Google
2627 <!-- PAGE BREAK 62 -->
2628 brought the Internet much closer to all of us by fantastically
2629 improving the quality of search on the network. Specialty search
2630 engines can do this even better. The idea of "intranet" search
2631 engines, search engines that search within the network of a particular
2632 institution, is to provide users of that institution with better
2633 access to material from that institution. Businesses do this all the
2634 time, enabling employees to have access to material that people
2635 outside the business can't get. Universities do it as well.
2638 These engines are enabled by the network technology itself.
2639 Microsoft, for example, has a network file system that makes it very
2640 easy for search engines tuned to that network to query the system for
2641 information about the publicly (within that network) available
2642 content. Jesse's search engine was built to take advantage of this
2643 technology. It used Microsoft's network file system to build an index
2644 of all the files available within the RPI network.
2647 Jesse's wasn't the first search engine built for the RPI network.
2648 Indeed, his engine was a simple modification of engines that others
2649 had built. His single most important improvement over those engines
2650 was to fix a bug within the Microsoft file-sharing system that could
2651 cause a user's computer to crash. With the engines that existed
2652 before, if you tried to access a file through a Windows browser that
2653 was on a computer that was off-line, your computer could crash. Jesse
2654 modified the system a bit to fix that problem, by adding a button that
2655 a user could click to see if the machine holding the file was still
2659 Jesse's engine went on-line in late October. Over the following six
2660 months, he continued to tweak it to improve its functionality. By
2661 March, the system was functioning quite well. Jesse had more than one
2662 million files in his directory, including every type of content that might
2663 be on users' computers.
2666 Thus the index his search engine produced included pictures, which
2667 students could use to put on their own Web sites; copies of notes or
2668 research; copies of information pamphlets; movie clips that students
2669 might have created; university brochures
—basically anything that
2670 <!-- PAGE BREAK 63 -->
2671 users of the RPI network made available in a public folder of their
2675 But the index also included music files. In fact, one quarter of the
2676 files that Jesse's search engine listed were music files. But that
2677 means, of course, that three quarters were not, and
—so that this
2678 point is absolutely clear
—Jesse did nothing to induce people to
2679 put music files in their public folders. He did nothing to target the
2680 search engine to these files. He was a kid tinkering with a
2681 Google-like technology at a university where he was studying
2682 information science, and hence, tinkering was the aim. Unlike Google,
2683 or Microsoft, for that matter, he made no money from this tinkering;
2684 he was not connected to any business that would make any money from
2685 this experiment. He was a kid tinkering with technology in an
2686 environment where tinkering with technology was precisely what he was
2690 On April
3,
2003, Jesse was contacted by the dean of students at
2691 RPI. The dean informed Jesse that the Recording Industry Association
2692 of America, the RIAA, would be filing a lawsuit against him and three
2693 other students whom he didn't even know, two of them at other
2694 universities. A few hours later, Jesse was served with papers from
2695 the suit. As he read these papers and watched the news reports about
2696 them, he was increasingly astonished.
2699 "It was absurd," he told me. "I don't think I did anything
2700 wrong.
… I don't think there's anything wrong with the search
2701 engine that I ran or
… what I had done to it. I mean, I hadn't
2702 modified it in any way that promoted or enhanced the work of
2703 pirates. I just modified the search engine in a way that would make it
2704 easier to use"
—again, a
<emphasis>search engine
</emphasis>,
2705 which Jesse had not himself built, using the Windows filesharing
2706 system, which Jesse had not himself built, to enable members of the
2707 RPI community to get access to content, which Jesse had not himself
2708 created or posted, and the vast majority of which had nothing to do
2712 But the RIAA branded Jesse a pirate. They claimed he operated a
2713 network and had therefore "willfully" violated copyright laws. They
2714 <!-- PAGE BREAK 64 -->
2715 demanded that he pay them the damages for his wrong. For cases of
2716 "willful infringement," the Copyright Act specifies something lawyers
2717 call "statutory damages." These damages permit a copyright owner to
2718 claim $
150,
000 per infringement. As the RIAA alleged more than one
2719 hundred specific copyright infringements, they therefore demanded that
2720 Jesse pay them at least $
15,
000,
000.
2723 Similar lawsuits were brought against three other students: one other
2724 student at RPI, one at Michigan Technical University, and one at
2725 Princeton. Their situations were similar to Jesse's. Though each case
2726 was different in detail, the bottom line in each was exactly the same:
2727 huge demands for "damages" that the RIAA claimed it was entitled to.
2728 If you added up the claims, these four lawsuits were asking courts in
2729 the United States to award the plaintiffs close to $
100
2730 <emphasis>billion
</emphasis>—six times the
2731 <emphasis>total
</emphasis> profit of the film industry in
2732 2001.
<footnote><para>
2735 Tim Goral, "Recording Industry Goes After Campus P-
2-P Networks:
2736 Suit Alleges $
97.8 Billion in Damages,"
<citetitle>Professional Media Group LCC
</citetitle> 6
2737 (
2003):
5, available at
2003 WL
55179443.
2740 <indexterm startref=
"idxrensselaer" class='endofrange'
/>
2742 Jesse called his parents. They were supportive but a bit frightened.
2743 An uncle was a lawyer. He began negotiations with the RIAA. They
2744 demanded to know how much money Jesse had. Jesse had saved
2745 $
12,
000 from summer jobs and other employment. They demanded
2746 $
12,
000 to dismiss the case.
2749 The RIAA wanted Jesse to admit to doing something wrong. He
2750 refused. They wanted him to agree to an injunction that would
2751 essentially make it impossible for him to work in many fields of
2752 technology for the rest of his life. He refused. They made him
2753 understand that this process of being sued was not going to be
2754 pleasant. (As Jesse's father recounted to me, the chief lawyer on the
2755 case, Matt Oppenheimer, told Jesse, "You don't want to pay another
2756 visit to a dentist like me.") And throughout, the RIAA insisted it
2757 would not settle the case until it took every penny Jesse had saved.
2760 Jesse's family was outraged at these claims. They wanted to fight.
2761 But Jesse's uncle worked to educate the family about the nature of the
2762 American legal system. Jesse could fight the RIAA. He might even
2763 win. But the cost of fighting a lawsuit like this, Jesse was told, would be
2764 at least $
250,
000. If he won, he would not recover that money. If he
2765 <!-- PAGE BREAK 65 -->
2766 won, he would have a piece of paper saying he had won, and a piece of
2767 paper saying he and his family were bankrupt.
2770 So Jesse faced a mafia-like choice: $
250,
000 and a chance at winning,
2771 or $
12,
000 and a settlement.
2774 The recording industry insists this is a matter of law and morality.
2775 Let's put the law aside for a moment and think about the morality.
2776 Where is the morality in a lawsuit like this? What is the virtue in
2777 scapegoatism? The RIAA is an extraordinarily powerful lobby. The
2778 president of the RIAA is reported to make more than $
1 million a year.
2779 Artists, on the other hand, are not well paid. The average recording
2780 artist makes $
45,
900.
<footnote><para>
2782 Occupational Employment Survey, U.S. Dept. of Labor (
2001)
2783 (
27–2042—Musicians and Singers). See also National Endowment for
2784 the Arts,
<citetitle>More Than One in a Blue Moon
</citetitle> (
2000).
2786 There are plenty of ways for the RIAA to affect
2787 and direct policy. So where is the morality in taking money from a
2788 student for running a search engine?
<footnote><para>
2790 Douglas Lichtman makes a related point in "KaZaA and Punishment,"
2791 <citetitle>Wall Street Journal
</citetitle>,
10 September
2003, A24.
2795 On June
23, Jesse wired his savings to the lawyer working for the
2796 RIAA. The case against him was then dismissed. And with this, this
2797 kid who had tinkered a computer into a $
15 million lawsuit became an
2802 I was definitely not an activist [before]. I never really meant to be
2803 an activist.
… [But] I've been pushed into this. In no way did I
2804 ever foresee anything like this, but I think it's just completely
2805 absurd what the RIAA has done.
2809 Jesse's parents betray a certain pride in their reluctant activist. As
2810 his father told me, Jesse "considers himself very conservative, and so do
2811 I.
… He's not a tree hugger.
… I think it's bizarre that they would
2812 pick on him. But he wants to let people know that they're sending the
2813 wrong message. And he wants to correct the record."
2815 <!-- PAGE BREAK 66 -->
2817 <chapter label=
"4" id=
"pirates">
2818 <title>CHAPTER FOUR: "Pirates"
</title>
2820 If "piracy" means using the creative property of others without
2821 their permission
—if "if value, then right" is true
—then the history of
2822 the content industry is a history of piracy. Every important sector of
2823 "big media" today
—film, records, radio, and cable TV
—was born of a
2824 kind of piracy so defined. The consistent story is how last generation's
2825 pirates join this generation's country club
—until now.
2830 The film industry of Hollywood was built by fleeing pirates.
<footnote><para>
2832 I am grateful to Peter DiMauro for pointing me to this extraordinary
2833 history. See also Siva Vaidhyanathan,
<citetitle>Copyrights and Copywrongs
</citetitle>,
87–93,
2834 which details Edison's "adventures" with copyright and patent.
2835 <indexterm><primary>Vaidhyanathan, Siva
</primary></indexterm>
2837 Creators and directors migrated from the East Coast to California in
2838 the early twentieth century in part to escape controls that patents
2839 granted the inventor of filmmaking, Thomas Edison. These controls were
2840 exercised through a monopoly "trust," the Motion Pictures Patents
2841 Company, and were based on Thomas Edison's creative
2842 property
—patents. Edison formed the MPPC to exercise the rights
2843 this creative property
2844 <!-- PAGE BREAK 67 -->
2845 gave him, and the MPPC was serious about the control it demanded.
2848 As one commentator tells one part of the story,
2852 A January
1909 deadline was set for all companies to comply with
2853 the license. By February, unlicensed outlaws, who referred to
2854 themselves as independents protested the trust and carried on
2855 business without submitting to the Edison monopoly. In the
2856 summer of
1909 the independent movement was in full-swing,
2857 with producers and theater owners using illegal equipment and
2858 imported film stock to create their own underground market.
2861 With the country experiencing a tremendous expansion in the number of
2862 nickelodeons, the Patents Company reacted to the independent movement
2863 by forming a strong-arm subsidiary known as the General Film Company
2864 to block the entry of non-licensed independents. With coercive tactics
2865 that have become legendary, General Film confiscated unlicensed
2866 equipment, discontinued product supply to theaters which showed
2867 unlicensed films, and effectively monopolized distribution with the
2868 acquisition of all U.S. film exchanges, except for the one owned by
2869 the independent William Fox who defied the Trust even after his
2870 license was revoked.
<footnote><para>
2872 J. A. Aberdeen,
<citetitle>Hollywood Renegades: The Society of Independent Motion
2873 Picture Producers
</citetitle> (Cobblestone Entertainment,
2000) and expanded texts
2874 posted at "The Edison Movie Monopoly: The Motion Picture Patents
2875 Company vs. the Independent Outlaws," available at
2876 <ulink url=
"http://free-culture.cc/notes/">link #
11</ulink>. For a
2877 discussion of the economic motive behind both these limits and the
2878 limits imposed by Victor on phonographs, see Randal C. Picker, "From
2879 Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and
2880 the Propertization of Copyright" (September
2002), University of
2881 Chicago Law School, James M. Olin Program in Law and Economics,
2882 Working Paper No.
159.
</para></footnote>
2883 <indexterm><primary>Fox, William
</primary></indexterm>
2884 <indexterm><primary>General Film Company
</primary></indexterm>
2885 <indexterm><primary>Picker, Randal C.
</primary></indexterm>
2889 The Napsters of those days, the "independents," were companies like
2890 Fox. And no less than today, these independents were vigorously
2891 resisted. "Shooting was disrupted by machinery stolen, and
2892 `accidents' resulting in loss of negatives, equipment, buildings and
2893 sometimes life and limb frequently occurred."
<footnote><para>
2895 Marc Wanamaker, "The First Studios,"
<citetitle>The Silents Majority
</citetitle>, archived at
2896 <ulink url=
"http://free-culture.cc/notes/">link #
12</ulink>.
2898 That led the independents to flee the East
2899 Coast. California was remote enough from Edison's reach that
2900 filmmakers there could pirate his inventions without fear of the
2901 law. And the leaders of Hollywood filmmaking, Fox most prominently,
2905 Of course, California grew quickly, and the effective enforcement
2906 of federal law eventually spread west. But because patents grant the
2907 patent holder a truly "limited" monopoly (just seventeen years at that
2909 <!-- PAGE BREAK 68 -->
2910 time), by the time enough federal marshals appeared, the patents had
2911 expired. A new industry had been born, in part from the piracy of
2912 Edison's creative property.
2915 <section id=
"recordedmusic">
2916 <title>Recorded Music
</title>
2918 The record industry was born of another kind of piracy, though to see
2919 how requires a bit of detail about the way the law regulates music.
2921 <indexterm id=
"idxfourneauxhenri" class='startofrange'
>
2922 <primary>Fourneaux, Henri
</primary>
2924 <indexterm><primary>Russel, Phil
</primary></indexterm>
2926 At the time that Edison and Henri Fourneaux invented machines
2927 for reproducing music (Edison the phonograph, Fourneaux the player
2928 piano), the law gave composers the exclusive right to control copies of
2929 their music and the exclusive right to control public performances of
2930 their music. In other words, in
1900, if I wanted a copy of Phil Russel's
2931 1899 hit "Happy Mose," the law said I would have to pay for the right
2932 to get a copy of the musical score, and I would also have to pay for the
2933 right to perform it publicly.
2935 <indexterm><primary>Beatles
</primary></indexterm>
2937 But what if I wanted to record "Happy Mose," using Edison's phonograph
2938 or Fourneaux's player piano? Here the law stumbled. It was clear
2939 enough that I would have to buy any copy of the musical score that I
2940 performed in making this recording. And it was clear enough that I
2941 would have to pay for any public performance of the work I was
2942 recording. But it wasn't totally clear that I would have to pay for a
2943 "public performance" if I recorded the song in my own house (even
2944 today, you don't owe the Beatles anything if you sing their songs in
2945 the shower), or if I recorded the song from memory (copies in your
2946 brain are not
—yet
— regulated by copyright law). So if I
2947 simply sang the song into a recording device in the privacy of my own
2948 home, it wasn't clear that I owed the composer anything. And more
2949 importantly, it wasn't clear whether I owed the composer anything if I
2950 then made copies of those recordings. Because of this gap in the law,
2951 then, I could effectively pirate someone else's song without paying
2952 its composer anything.
2954 <indexterm startref=
"idxfourneauxhenri" class='endofrange'
/>
2956 The composers (and publishers) were none too happy about
2957 <!-- PAGE BREAK 69 -->
2958 this capacity to pirate. As South Dakota senator Alfred Kittredge
2960 <indexterm><primary>Kittredge, Alfred
</primary></indexterm>
2964 Imagine the injustice of the thing. A composer writes a song or an
2965 opera. A publisher buys at great expense the rights to the same and
2966 copyrights it. Along come the phonographic companies and companies who
2967 cut music rolls and deliberately steal the work of the brain of the
2968 composer and publisher without any regard for [their]
2969 rights.
<footnote><para>
2971 To Amend and Consolidate the Acts Respecting Copyright: Hearings on
2972 S.
6330 and H.R.
19853 Before the ( Joint) Committees on Patents,
59th
2973 Cong.
59,
1st sess. (
1906) (statement of Senator Alfred B. Kittredge,
2974 of South Dakota, chairman), reprinted in
<citetitle>Legislative History of the
2975 Copyright Act
</citetitle>, E. Fulton Brylawski and Abe Goldman, eds. (South
2976 Hackensack, N.J.: Rothman Reprints,
1976).
2977 <indexterm><primary>Kittredge, Alfred
</primary></indexterm>
2982 The innovators who developed the technology to record other
2983 people's works were "sponging upon the toil, the work, the talent, and
2984 genius of American composers,"
<footnote><para>
2986 To Amend and Consolidate the Acts Respecting Copyright,
223
2987 (statement of Nathan Burkan, attorney for the Music Publishers Association).
2989 and the "music publishing industry"
2990 was thereby "at the complete mercy of this one pirate."
<footnote><para>
2992 To Amend and Consolidate the Acts Respecting Copyright,
226
2993 (statement of Nathan Burkan, attorney for the Music Publishers Association).
2996 Sousa put it, in as direct a way as possible, "When they make money
2997 out of my pieces, I want a share of it."
<footnote><para>
2999 To Amend and Consolidate the Acts Respecting Copyright,
23
3000 (statement of John Philip Sousa, composer).
3004 These arguments have familiar echoes in the wars of our day. So, too,
3005 do the arguments on the other side. The innovators who developed the
3006 player piano argued that "it is perfectly demonstrable that the
3007 introduction of automatic music players has not deprived any composer
3008 of anything he had before their introduction." Rather, the machines
3009 increased the sales of sheet music.
<footnote><para>
3012 To Amend and Consolidate the Acts Respecting Copyright,
283–84
3013 (statement of Albert Walker, representative of the Auto-Music
3014 Perforating Company of New York).
3015 </para></footnote> In any case, the innovators argued, the job of
3016 Congress was "to consider first the interest of [the public], whom
3017 they represent, and whose servants they are." "All talk about
3018 `theft,'" the general counsel of the American Graphophone Company
3019 wrote, "is the merest claptrap, for there exists no property in ideas
3020 musical, literary or artistic, except as defined by
3021 statute."
<footnote><para>
3023 To Amend and Consolidate the Acts Respecting Copyright,
376 (prepared
3024 memorandum of Philip Mauro, general patent counsel of the American
3025 Graphophone Company Association).
3027 <indexterm><primary>American Graphophone Company
</primary></indexterm>
3030 The law soon resolved this battle in favor of the composer
3031 <emphasis>and
</emphasis> the recording artist. Congress amended the
3032 law to make sure that composers would be paid for the "mechanical
3033 reproductions" of their music. But rather than simply granting the
3034 composer complete control over the right to make mechanical
3035 reproductions, Congress gave recording artists a right to record the
3036 music, at a price set by Congress, once the composer allowed it to be
3037 recorded once. This is the part of
3039 <!-- PAGE BREAK 70 -->
3040 copyright law that makes cover songs possible. Once a composer
3041 authorizes a recording of his song, others are free to record the same
3042 song, so long as they pay the original composer a fee set by the law.
3045 American law ordinarily calls this a "compulsory license," but I will
3046 refer to it as a "statutory license." A statutory license is a license
3047 whose key terms are set by law. After Congress's amendment of the
3048 Copyright Act in
1909, record companies were free to distribute copies
3049 of recordings so long as they paid the composer (or copyright holder)
3050 the fee set by the statute.
3053 This is an exception within the law of copyright. When John Grisham
3054 writes a novel, a publisher is free to publish that novel only if
3055 Grisham gives the publisher permission. Grisham, in turn, is free to
3056 charge whatever he wants for that permission. The price to publish
3057 Grisham is thus set by Grisham, and copyright law ordinarily says you
3058 have no permission to use Grisham's work except with permission of
3060 <indexterm><primary>Grisham, John
</primary></indexterm>
3063 But the law governing recordings gives recording artists less. And
3064 thus, in effect, the law
<emphasis>subsidizes
</emphasis> the recording
3065 industry through a kind of piracy
—by giving recording artists a
3066 weaker right than it otherwise gives creative authors. The Beatles
3067 have less control over their creative work than Grisham does. And the
3068 beneficiaries of this less control are the recording industry and the
3069 public. The recording industry gets something of value for less than
3070 it otherwise would pay; the public gets access to a much wider range
3071 of musical creativity. Indeed, Congress was quite explicit about its
3072 reasons for granting this right. Its fear was the monopoly power of
3073 rights holders, and that that power would stifle follow-on
3074 creativity.
<footnote><para>
3077 Copyright Law Revision: Hearings on S.
2499, S.
2900, H.R.
243, and
3078 H.R.
11794 Before the ( Joint) Committee on Patents,
60th Cong.,
1st
3079 sess.,
217 (
1908) (statement of Senator Reed Smoot, chairman), reprinted
3080 in
<citetitle>Legislative History of the
1909 Copyright Act
</citetitle>, E. Fulton Brylawski and
3081 Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints,
1976).
3083 <indexterm><primary>Beatles
</primary></indexterm>
3086 While the recording industry has been quite coy about this recently,
3087 historically it has been quite a supporter of the statutory license for
3088 records. As a
1967 report from the House Committee on the Judiciary
3093 the record producers argued vigorously that the compulsory
3094 <!-- PAGE BREAK 71 -->
3095 license system must be retained. They asserted that the record
3096 industry is a half-billion-dollar business of great economic
3097 importance in the United States and throughout the world; records
3098 today are the principal means of disseminating music, and this creates
3099 special problems, since performers need unhampered access to musical
3100 material on nondiscriminatory terms. Historically, the record
3101 producers pointed out, there were no recording rights before
1909 and
3102 the
1909 statute adopted the compulsory license as a deliberate
3103 anti-monopoly condition on the grant of these rights. They argue that
3104 the result has been an outpouring of recorded music, with the public
3105 being given lower prices, improved quality, and a greater
3106 choice.
<footnote><para>
3108 Copyright Law Revision: Report to Accompany H.R.
2512, House Committee
3109 on the Judiciary,
90th Cong.,
1st sess., House Document no.
83, (
8
3110 March
1967). I am grateful to Glenn Brown for drawing my attention to
3111 this report.
</para></footnote>
3115 By limiting the rights musicians have, by partially pirating their
3116 creative work, the record producers, and the public, benefit.
3119 <section id=
"radio">
3120 <title>Radio
</title>
3122 Radio was also born of piracy.
3125 When a radio station plays a record on the air, that constitutes a
3126 "public performance" of the composer's work.
<footnote><para>
3128 See
17 <citetitle>United States Code
</citetitle>, sections
106 and
110. At the beginning,
3129 record companies printed "Not Licensed for Radio Broadcast" and other
3130 messages purporting to restrict the ability to play a record on a
3131 radio station. Judge Learned Hand rejected the argument that a
3132 warning attached to a record might restrict the rights of the radio
3133 station. See
<citetitle>RCA Manufacturing Co
</citetitle>. v.
<citetitle>Whiteman
</citetitle>,
114 F.
2d
86 (
2nd
3134 Cir.
1940). See also Randal C. Picker, "From Edison to the Broadcast
3135 Flag: Mechanisms of Consent and Refusal and the Propertization of
3136 Copyright,"
<citetitle>University of Chicago Law Review
</citetitle> 70 (
2003):
281.
3137 <indexterm><primary>Hand, Learned
</primary></indexterm>
3138 <indexterm><primary>Picker, Randal C.
</primary></indexterm>
3140 As I described above, the law gives the composer (or copyright holder)
3141 an exclusive right to public performances of his work. The radio
3142 station thus owes the composer money for that performance.
3145 But when the radio station plays a record, it is not only performing a
3146 copy of the
<emphasis>composer's
</emphasis> work. The radio station is
3147 also performing a copy of the
<emphasis>recording artist's
</emphasis>
3148 work. It's one thing to have "Happy Birthday" sung on the radio by the
3149 local children's choir; it's quite another to have it sung by the
3150 Rolling Stones or Lyle Lovett. The recording artist is adding to the
3151 value of the composition performed on the radio station. And if the
3152 law were perfectly consistent, the radio station would have to pay the
3153 recording artist for his work, just as it pays the composer of the
3155 <indexterm><primary>Lovett, Lyle
</primary></indexterm>
3157 <!-- PAGE BREAK 72 -->
3160 But it doesn't. Under the law governing radio performances, the radio
3161 station does not have to pay the recording artist. The radio station
3162 need only pay the composer. The radio station thus gets a bit of
3163 something for nothing. It gets to perform the recording artist's work
3164 for free, even if it must pay the composer something for the privilege
3165 of playing the song.
3167 <indexterm id=
"idxmadonna" class='startofrange'
>
3168 <primary>Madonna
</primary>
3171 This difference can be huge. Imagine you compose a piece of music.
3172 Imagine it is your first. You own the exclusive right to authorize
3173 public performances of that music. So if Madonna wants to sing your
3174 song in public, she has to get your permission.
3177 Imagine she does sing your song, and imagine she likes it a lot. She
3178 then decides to make a recording of your song, and it becomes a top
3179 hit. Under our law, every time a radio station plays your song, you
3180 get some money. But Madonna gets nothing, save the indirect effect on
3181 the sale of her CDs. The public performance of her recording is not a
3182 "protected" right. The radio station thus gets to
3183 <emphasis>pirate
</emphasis> the value of Madonna's work without paying
3186 <indexterm startref=
"idxmadonna" class='endofrange'
/>
3188 No doubt, one might argue that, on balance, the recording artists
3189 benefit. On average, the promotion they get is worth more than the
3190 performance rights they give up. Maybe. But even if so, the law
3191 ordinarily gives the creator the right to make this choice. By making
3192 the choice for him or her, the law gives the radio station the right
3193 to take something for nothing.
3196 <section id=
"cabletv">
3197 <title>Cable TV
</title>
3200 Cable TV was also born of a kind of piracy.
3203 When cable entrepreneurs first started wiring communities with cable
3204 television in
1948, most refused to pay broadcasters for the content
3205 that they echoed to their customers. Even when the cable companies
3206 started selling access to television broadcasts, they refused to pay
3207 <!-- PAGE BREAK 73 -->
3208 for what they sold. Cable companies were thus Napsterizing
3209 broadcasters' content, but more egregiously than anything Napster ever
3210 did
— Napster never charged for the content it enabled others to
3213 <indexterm><primary>Anello, Douglas
</primary></indexterm>
3214 <indexterm><primary>Burdick, Quentin
</primary></indexterm>
3215 <indexterm><primary>Hyde, Rosel H.
</primary></indexterm>
3217 Broadcasters and copyright owners were quick to attack this theft.
3218 Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
3219 "unfair and potentially destructive competition."
<footnote><para>
3221 Copyright Law Revision
—CATV: Hearing on S.
1006 Before the
3222 Subcommittee on Patents, Trademarks, and Copyrights of the Senate
3223 Committee on the Judiciary,
89th Cong.,
2nd sess.,
78 (
1966)
3224 (statement of Rosel H. Hyde, chairman of the Federal Communications
3226 <indexterm><primary>Hyde, Rosel H.
</primary></indexterm>
3228 There may have been a "public interest" in spreading the reach of cable
3229 TV, but as Douglas Anello, general counsel to the National Association
3230 of Broadcasters, asked Senator Quentin Burdick during testimony, "Does public
3231 interest dictate that you use somebody else's property?"
<footnote><para>
3233 Copyright Law Revision
—CATV,
116 (statement of Douglas A. Anello,
3234 general counsel of the National Association of Broadcasters).
3236 As another broadcaster put it,
3240 The extraordinary thing about the CATV business is that it is the
3241 only business I know of where the product that is being sold is not
3242 paid for.
<footnote><para>
3244 Copyright Law Revision
—CATV,
126 (statement of Ernest W. Jennes,
3245 general counsel of the Association of Maximum Service Telecasters, Inc.).
3250 Again, the demand of the copyright holders seemed reasonable enough:
3254 All we are asking for is a very simple thing, that people who now
3255 take our property for nothing pay for it. We are trying to stop
3256 piracy and I don't think there is any lesser word to describe it. I
3257 think there are harsher words which would fit it.
<footnote><para>
3259 Copyright Law Revision
—CATV,
169 (joint statement of Arthur B.
3260 Krim, president of United Artists Corp., and John Sinn, president of
3261 United Artists Television, Inc.).
3265 <indexterm><primary>Heston, Charlton
</primary></indexterm>
3267 These were "free-ride[rs]," Screen Actor's Guild president Charlton
3268 Heston said, who were "depriving actors of
3269 compensation."
<footnote><para>
3271 Copyright Law Revision
—CATV,
209 (statement of Charlton Heston,
3272 president of the Screen Actors Guild).
3273 <indexterm><primary>Heston, Charlton
</primary></indexterm>
3278 But again, there was another side to the debate. As Assistant Attorney
3279 General Edwin Zimmerman put it,
3283 Our point here is that unlike the problem of whether you have any
3284 copyright protection at all, the problem here is whether copyright
3285 holders who are already compensated, who already have a monopoly,
3286 should be permitted to extend that monopoly.
… The
3288 <!-- PAGE BREAK 74 -->
3289 question here is how much compensation they should have and
3290 how far back they should carry their right to compensation.
<footnote><para>
3292 Copyright Law Revision
—CATV,
216 (statement of Edwin M.
3293 Zimmerman, acting assistant attorney general).
3294 <indexterm><primary>Zimmerman, Edwin
</primary></indexterm>
3296 <indexterm><primary>Zimmerman, Edwin
</primary></indexterm>
3300 Copyright owners took the cable companies to court. Twice the Supreme
3301 Court held that the cable companies owed the copyright owners nothing.
3304 It took Congress almost thirty years before it resolved the question
3305 of whether cable companies had to pay for the content they "pirated."
3306 In the end, Congress resolved this question in the same way that it
3307 resolved the question about record players and player pianos. Yes,
3308 cable companies would have to pay for the content that they broadcast;
3309 but the price they would have to pay was not set by the copyright
3310 owner. The price was set by law, so that the broadcasters couldn't
3311 exercise veto power over the emerging technologies of cable. Cable
3312 companies thus built their empire in part upon a "piracy" of the value
3313 created by broadcasters' content.
3316 These separate stories sing a common theme. If "piracy" means
3317 using value from someone else's creative property without permission
3318 from that creator
—as it is increasingly described
3319 today
<footnote><para>
3321 See, for example, National Music Publisher's Association,
<citetitle>The Engine
3322 of Free Expression: Copyright on the Internet
—The Myth of Free
3323 Information
</citetitle>, available at
3324 <ulink url=
"http://free-culture.cc/notes/">link #
13</ulink>. "The
3325 threat of piracy
—the use of someone else's creative work without
3326 permission or compensation
—has grown with the Internet."
3328 — then
<emphasis>every
</emphasis> industry affected by copyright
3329 today is the product and beneficiary of a certain kind of
3330 piracy. Film, records, radio, cable TV.
… The list is long and
3331 could well be expanded. Every generation welcomes the pirates from the
3332 last. Every generation
—until now.
3334 <!-- PAGE BREAK 75 -->
3337 <chapter label=
"5" id=
"piracy">
3338 <title>CHAPTER FIVE: "Piracy"
</title>
3340 There is piracy of copyrighted material. Lots of it. This piracy comes
3341 in many forms. The most significant is commercial piracy, the
3342 unauthorized taking of other people's content within a commercial
3343 context. Despite the many justifications that are offered in its
3344 defense, this taking is wrong. No one should condone it, and the law
3348 But as well as copy-shop piracy, there is another kind of "taking"
3349 that is more directly related to the Internet. That taking, too, seems
3350 wrong to many, and it is wrong much of the time. Before we paint this
3351 taking "piracy," however, we should understand its nature a bit more.
3352 For the harm of this taking is significantly more ambiguous than
3353 outright copying, and the law should account for that ambiguity, as it
3354 has so often done in the past.
3355 <!-- PAGE BREAK 76 -->
3357 <section id=
"piracy-i">
3358 <title>Piracy I
</title>
3360 All across the world, but especially in Asia and Eastern Europe, there
3361 are businesses that do nothing but take others people's copyrighted
3362 content, copy it, and sell it
—all without the permission of a copyright
3363 owner. The recording industry estimates that it loses about $
4.6 billion
3364 every year to physical piracy
<footnote><para>
3366 See IFPI (International Federation of the Phonographic Industry),
<citetitle>The
3367 Recording Industry Commercial Piracy Report
2003</citetitle>, July
2003, available
3368 at
<ulink url=
"http://free-culture.cc/notes/">link #
14</ulink>. See
3369 also Ben Hunt, "Companies Warned on Music Piracy Risk,"
<citetitle>Financial
3370 Times
</citetitle>,
14 February
2003,
11.
3372 (that works out to one in three CDs sold worldwide). The MPAA
3373 estimates that it loses $
3 billion annually worldwide to piracy.
3376 This is piracy plain and simple. Nothing in the argument of this
3377 book, nor in the argument that most people make when talking about
3378 the subject of this book, should draw into doubt this simple point:
3379 This piracy is wrong.
3382 Which is not to say that excuses and justifications couldn't be made
3383 for it. We could, for example, remind ourselves that for the first one
3384 hundred years of the American Republic, America did not honor foreign
3385 copyrights. We were born, in this sense, a pirate nation. It might
3386 therefore seem hypocritical for us to insist so strongly that other
3387 developing nations treat as wrong what we, for the first hundred years
3388 of our existence, treated as right.
3391 That excuse isn't terribly strong. Technically, our law did not ban
3392 the taking of foreign works. It explicitly limited itself to American
3393 works. Thus the American publishers who published foreign works
3394 without the permission of foreign authors were not violating any rule.
3395 The copy shops in Asia, by contrast, are violating Asian law. Asian
3396 law does protect foreign copyrights, and the actions of the copy shops
3397 violate that law. So the wrong of piracy that they engage in is not
3398 just a moral wrong, but a legal wrong, and not just an internationally
3399 legal wrong, but a locally legal wrong as well.
3402 True, these local rules have, in effect, been imposed upon these
3403 countries. No country can be part of the world economy and choose
3404 <!-- PAGE BREAK 77 -->
3405 not to protect copyright internationally. We may have been born a
3406 pirate nation, but we will not allow any other nation to have a
3410 If a country is to be treated as a sovereign, however, then its laws are
3411 its laws regardless of their source. The international law under which
3412 these nations live gives them some opportunities to escape the burden
3413 of intellectual property law.
<footnote><para>
3415 See Peter Drahos with John Braithwaite, Information Feudalism:
<citetitle>Who
3416 Owns the Knowledge Economy?
</citetitle> (New York: The New Press,
2003),
10–13,
3417 209. The Trade-Related Aspects of Intellectual Property Rights
3418 (TRIPS) agreement obligates member nations to create administrative
3419 and enforcement mechanisms for intellectual property rights, a costly
3420 proposition for developing countries. Additionally, patent rights may
3421 lead to higher prices for staple industries such as
3422 agriculture. Critics of TRIPS question the disparity between burdens
3423 imposed upon developing countries and benefits conferred to
3424 industrialized nations. TRIPS does permit governments to use patents
3425 for public, noncommercial uses without first obtaining the patent
3426 holder's permission. Developing nations may be able to use this to
3427 gain the benefits of foreign patents at lower prices. This is a
3428 promising strategy for developing nations within the TRIPS framework.
3429 <indexterm><primary>Drahos, Peter
</primary></indexterm>
3430 </para></footnote> In my view, more developing nations should take
3431 advantage of that opportunity, but when they don't, then their laws
3432 should be respected. And under the laws of these nations, this piracy
3436 Alternatively, we could try to excuse this piracy by noting that in
3437 any case, it does no harm to the industry. The Chinese who get access
3438 to American CDs at
50 cents a copy are not people who would have
3439 bought those American CDs at $
15 a copy. So no one really has any
3440 less money than they otherwise would have had.
<footnote><para>
3442 For an analysis of the economic impact of copying technology, see Stan
3443 Liebowitz,
<citetitle>Rethinking the Network Economy
</citetitle> (New York: Amacom,
2002),
3444 144–90. "In some instances
… the impact of piracy on the
3445 copyright holder's ability to appropriate the value of the work will
3446 be negligible. One obvious instance is the case where the individual
3447 engaging in pirating would not have purchased an original even if
3448 pirating were not an option." Ibid.,
149.
3449 <indexterm><primary>Liebowitz, Stan
</primary></indexterm>
3453 This is often true (though I have friends who have purchased many
3454 thousands of pirated DVDs who certainly have enough money to pay
3455 for the content they have taken), and it does mitigate to some degree
3456 the harm caused by such taking. Extremists in this debate love to say,
3457 "You wouldn't go into Barnes
& Noble and take a book off of the shelf
3458 without paying; why should it be any different with on-line music?"
3459 The difference is, of course, that when you take a book from Barnes
&
3460 Noble, it has one less book to sell. By contrast, when you take an MP3
3461 from a computer network, there is not one less CD that can be sold.
3462 The physics of piracy of the intangible are different from the physics of
3463 piracy of the tangible.
3466 This argument is still very weak. However, although copyright is a
3467 property right of a very special sort, it
<emphasis>is
</emphasis> a
3468 property right. Like all property rights, the copyright gives the
3469 owner the right to decide the terms under which content is shared. If
3470 the copyright owner doesn't want to sell, she doesn't have to. There
3471 are exceptions: important statutory licenses that apply to copyrighted
3472 content regardless of the wish of the copyright owner. Those licenses
3473 give people the right to "take" copyrighted content whether or not the
3474 copyright owner wants to sell. But
3476 <!-- PAGE BREAK 78 -->
3477 where the law does not give people the right to take content, it is
3478 wrong to take that content even if the wrong does no harm. If we have
3479 a property system, and that system is properly balanced to the
3480 technology of a time, then it is wrong to take property without the
3481 permission of a property owner. That is exactly what "property" means.
3484 Finally, we could try to excuse this piracy with the argument that the
3485 piracy actually helps the copyright owner. When the Chinese "steal"
3486 Windows, that makes the Chinese dependent on Microsoft. Microsoft
3487 loses the value of the software that was taken. But it gains users who
3488 are used to life in the Microsoft world. Over time, as the nation
3489 grows more wealthy, more and more people will buy software rather than
3490 steal it. And hence over time, because that buying will benefit
3491 Microsoft, Microsoft benefits from the piracy. If instead of pirating
3492 Microsoft Windows, the Chinese used the free GNU/Linux operating
3493 system, then these Chinese users would not eventually be buying
3494 Microsoft. Without piracy, then, Microsoft would lose.
3495 <indexterm><primary>GNU/Linux operating system
</primary></indexterm>
3496 <indexterm><primary>Linux operating system
</primary></indexterm>
3498 <primary>Microsoft
</primary>
3499 <secondary>Windows operating system of
</secondary>
3501 <indexterm><primary>Windows
</primary></indexterm>
3504 This argument, too, is somewhat true. The addiction strategy is a good
3505 one. Many businesses practice it. Some thrive because of it. Law
3506 students, for example, are given free access to the two largest legal
3507 databases. The companies marketing both hope the students will become
3508 so used to their service that they will want to use it and not the
3509 other when they become lawyers (and must pay high subscription fees).
3512 Still, the argument is not terribly persuasive. We don't give the
3513 alcoholic a defense when he steals his first beer, merely because that
3514 will make it more likely that he will buy the next three. Instead, we
3515 ordinarily allow businesses to decide for themselves when it is best
3516 to give their product away. If Microsoft fears the competition of
3517 GNU/Linux, then Microsoft can give its product away, as it did, for
3518 example, with Internet Explorer to fight Netscape. A property right
3519 means giving the property owner the right to say who gets access to
3520 what
—at least ordinarily. And if the law properly balances the
3521 rights of the copyright owner with the rights of access, then
3522 violating the law is still wrong.
3523 <indexterm><primary>GNU/Linux operating system
</primary></indexterm>
3524 <indexterm><primary>Internet Explorer
</primary></indexterm>
3525 <indexterm><primary>Netscape
</primary></indexterm>
3526 <indexterm><primary>Linux operating system
</primary></indexterm>
3529 <!-- PAGE BREAK 79 -->
3530 Thus, while I understand the pull of these justifications for piracy,
3531 and I certainly see the motivation, in my view, in the end, these efforts
3532 at justifying commercial piracy simply don't cut it. This kind of piracy
3533 is rampant and just plain wrong. It doesn't transform the content it
3534 steals; it doesn't transform the market it competes in. It merely gives
3535 someone access to something that the law says he should not have.
3536 Nothing has changed to draw that law into doubt. This form of piracy
3540 But as the examples from the four chapters that introduced this part
3541 suggest, even if some piracy is plainly wrong, not all "piracy" is. Or
3542 at least, not all "piracy" is wrong if that term is understood in the
3543 way it is increasingly used today. Many kinds of "piracy" are useful
3544 and productive, to produce either new content or new ways of doing
3545 business. Neither our tradition nor any tradition has ever banned all
3546 "piracy" in that sense of the term.
3549 This doesn't mean that there are no questions raised by the latest
3550 piracy concern, peer-to-peer file sharing. But it does mean that we
3551 need to understand the harm in peer-to-peer sharing a bit more before
3552 we condemn it to the gallows with the charge of piracy.
3555 For (
1) like the original Hollywood, p2p sharing escapes an overly
3556 controlling industry; and (
2) like the original recording industry, it
3557 simply exploits a new way to distribute content; but (
3) unlike cable
3558 TV, no one is selling the content that is shared on p2p services.
3561 These differences distinguish p2p sharing from true piracy. They
3562 should push us to find a way to protect artists while enabling this
3566 <section id=
"piracy-ii">
3567 <title>Piracy II
</title>
3569 The key to the "piracy" that the law aims to quash is a use that "rob[s]
3570 the author of [his] profit."
<footnote><para>
3572 <citetitle>Bach
</citetitle> v.
<citetitle>Longman
</citetitle>,
98 Eng. Rep.
1274 (
1777).
3574 This means we must determine whether
3575 and how much p2p sharing harms before we know how strongly the
3576 <!-- PAGE BREAK 80 -->
3577 law should seek to either prevent it or find an alternative to assure the
3578 author of his profit.
3581 Peer-to-peer sharing was made famous by Napster. But the inventors of
3582 the Napster technology had not made any major technological
3583 innovations. Like every great advance in innovation on the Internet
3584 (and, arguably, off the Internet as well
<footnote><para>
3586 See Clayton M. Christensen,
<citetitle>The Innovator's Dilemma: The Revolutionary
3587 National Bestseller That Changed the Way We Do Business
</citetitle> (New York:
3588 HarperBusiness,
2000). Professor Christensen examines why companies
3589 that give rise to and dominate a product area are frequently unable to
3590 come up with the most creative, paradigm-shifting uses for their own
3591 products. This job usually falls to outside innovators, who
3592 reassemble existing technology in inventive ways. For a discussion of
3593 Christensen's ideas, see Lawrence Lessig,
<citetitle>Future
</citetitle>,
89–92,
139.
3595 <indexterm><primary>Christensen, Clayton M.
</primary></indexterm>
3596 </para></footnote>), Shawn Fanning and crew had simply
3597 put together components that had been developed independently.
3598 <indexterm><primary>Fanning, Shawn
</primary></indexterm>
3601 The result was spontaneous combustion. Launched in July
1999,
3602 Napster amassed over
10 million users within nine months. After
3603 eighteen months, there were close to
80 million registered users of the
3604 system.
<footnote><para>
3606 See Carolyn Lochhead, "Silicon Valley Dream, Hollywood Nightmare,"
<citetitle>San
3607 Francisco Chronicle
</citetitle>,
24 September
2002, A1; "Rock 'n' Roll Suicide,"
3608 <citetitle>New Scientist
</citetitle>,
6 July
2002,
42; Benny Evangelista, "Napster Names CEO,
3609 Secures New Financing,"
<citetitle>San Francisco Chronicle
</citetitle>,
23 May
2003, C1;
3610 "Napster's Wake-Up Call,"
<citetitle>Economist
</citetitle>,
24 June
2000,
23; John Naughton,
3611 "Hollywood at War with the Internet" (London)
<citetitle>Times
</citetitle>,
26 July
2002,
18.
3613 Courts quickly shut Napster down, but other services emerged
3614 to take its place. (Kazaa is currently the most popular p2p service. It
3615 boasts over
100 million members.) These services' systems are different
3616 architecturally, though not very different in function: Each enables
3617 users to make content available to any number of other users. With a
3618 p2p system, you can share your favorite songs with your best friend
—
3619 or your
20,
000 best friends.
3622 According to a number of estimates, a huge proportion of Americans
3623 have tasted file-sharing technology. A study by Ipsos-Insight in
3624 September
2002 estimated that
60 million Americans had downloaded
3625 music
—28 percent of Americans older than
12.
<footnote><para>
3628 See Ipsos-Insight,
<citetitle>TEMPO: Keeping Pace with Online Music Distribution
</citetitle>
3629 (September
2002), reporting that
28 percent of Americans aged twelve
3630 and older have downloaded music off of the Internet and
30 percent have
3631 listened to digital music files stored on their computers.
3633 A survey by the NPD group quoted in
<citetitle>The New York Times
</citetitle>
3634 estimated that
43 million citizens used file-sharing networks to
3635 exchange content in May
2003.
<footnote><para>
3637 Amy Harmon, "Industry Offers a Carrot in Online Music Fight,"
<citetitle>New
3638 York Times
</citetitle>,
6 June
2003, A1.
3640 The vast majority of these are not kids. Whatever the actual figure, a
3641 massive quantity of content is being "taken" on these networks. The
3642 ease and inexpensiveness of file-sharing networks have inspired
3643 millions to enjoy music in a way that they hadn't before.
3646 Some of this enjoying involves copyright infringement. Some of it does
3647 not. And even among the part that is technically copyright
3648 infringement, calculating the actual harm to copyright owners is more
3649 complicated than one might think. So consider
—a bit more
3650 carefully than the polarized voices around this debate usually
3651 do
—the kinds of sharing that file sharing enables, and the kinds
3655 <!-- PAGE BREAK 81 -->
3656 File sharers share different kinds of content. We can divide these
3657 different kinds into four types.
3659 <orderedlist numeration=
"upperalpha">
3662 There are some who use sharing networks as substitutes for purchasing
3663 content. Thus, when a new Madonna CD is released, rather than buying
3664 the CD, these users simply take it. We might quibble about whether
3665 everyone who takes it would actually have bought it if sharing didn't
3666 make it available for free. Most probably wouldn't have, but clearly
3667 there are some who would. The latter are the target of category A:
3668 users who download instead of purchasing.
3669 <indexterm><primary>Madonna
</primary></indexterm>
3673 There are some who use sharing networks to sample music before
3674 purchasing it. Thus, a friend sends another friend an MP3 of an artist
3675 he's not heard of. The other friend then buys CDs by that artist. This
3676 is a kind of targeted advertising, quite likely to succeed. If the
3677 friend recommending the album gains nothing from a bad recommendation,
3678 then one could expect that the recommendations will actually be quite
3679 good. The net effect of this sharing could increase the quantity of
3684 There are many who use sharing networks to get access to copyrighted
3685 content that is no longer sold or that they would not have purchased
3686 because the transaction costs off the Net are too high. This use of
3687 sharing networks is among the most rewarding for many. Songs that were
3688 part of your childhood but have long vanished from the marketplace
3689 magically appear again on the network. (One friend told me that when
3690 she discovered Napster, she spent a solid weekend "recalling" old
3691 songs. She was astonished at the range and mix of content that was
3692 available.) For content not sold, this is still technically a
3693 violation of copyright, though because the copyright owner is not
3694 selling the content anymore, the economic harm is zero
—the same
3695 harm that occurs when I sell my collection of
1960s
45-rpm records to
3699 <!-- PAGE BREAK 82 -->
3701 Finally, there are many who use sharing networks to get access
3702 to content that is not copyrighted or that the copyright owner
3707 How do these different types of sharing balance out?
3710 Let's start with some simple but important points. From the
3711 perspective of the law, only type D sharing is clearly legal. From the
3712 perspective of economics, only type A sharing is clearly
3713 harmful.
<footnote><para>
3715 See Liebowitz,
<citetitle>Rethinking the Network Economy
</citetitle>,
148–49.
3716 <indexterm><primary>Liebowitz, Stan
</primary></indexterm>
3718 Type B sharing is illegal but plainly beneficial. Type C sharing is
3719 illegal, yet good for society (since more exposure to music is good)
3720 and harmless to the artist (since the work is not otherwise
3721 available). So how sharing matters on balance is a hard question to
3722 answer
—and certainly much more difficult than the current
3723 rhetoric around the issue suggests.
3726 Whether on balance sharing is harmful depends importantly on how
3727 harmful type A sharing is. Just as Edison complained about Hollywood,
3728 composers complained about piano rolls, recording artists complained
3729 about radio, and broadcasters complained about cable TV, the music
3730 industry complains that type A sharing is a kind of "theft" that is
3731 "devastating" the industry.
3734 While the numbers do suggest that sharing is harmful, how
3735 harmful is harder to reckon. It has long been the recording industry's
3736 practice to blame technology for any drop in sales. The history of
3737 cassette recording is a good example. As a study by Cap Gemini Ernst
3738 & Young put it, "Rather than exploiting this new, popular
3739 technology, the labels fought it."
<footnote><para>
3741 See Cap Gemini Ernst
& Young,
<citetitle>Technology Evolution and the
3742 Music Industry's Business Model Crisis
</citetitle> (
2003),
3. This report
3743 describes the music industry's effort to stigmatize the budding
3744 practice of cassette taping in the
1970s, including an advertising
3745 campaign featuring a cassette-shape skull and the caption "Home taping
3746 is killing music." At the time digital audio tape became a threat,
3747 the Office of Technical Assessment conducted a survey of consumer
3748 behavior. In
1988,
40 percent of consumers older than ten had taped
3749 music to a cassette format. U.S. Congress, Office of Technology
3750 Assessment,
<citetitle>Copyright and Home Copying: Technology Challenges the Law
</citetitle>,
3751 OTA-CIT-
422 (Washington, D.C.: U.S. Government Printing Office,
3752 October
1989),
145–56.
</para></footnote>
3753 The labels claimed that every album taped was an album unsold, and
3754 when record sales fell by
11.4 percent in
1981, the industry claimed
3755 that its point was proved. Technology was the problem, and banning or
3756 regulating technology was the answer.
3759 Yet soon thereafter, and before Congress was given an opportunity
3760 to enact regulation, MTV was launched, and the industry had a record
3761 turnaround. "In the end," Cap Gemini concludes, "the `crisis'
… was
3762 not the fault of the tapers
—who did not [stop after MTV came into
3763 <!-- PAGE BREAK 83 -->
3764 being]
—but had to a large extent resulted from stagnation in musical
3765 innovation at the major labels."
<footnote><para>
3767 U.S. Congress,
<citetitle>Copyright and Home Copying
</citetitle>,
4.
3771 But just because the industry was wrong before does not mean it is
3772 wrong today. To evaluate the real threat that p2p sharing presents to
3773 the industry in particular, and society in general
—or at least
3774 the society that inherits the tradition that gave us the film
3775 industry, the record industry, the radio industry, cable TV, and the
3776 VCR
—the question is not simply whether type A sharing is
3777 harmful. The question is also
<emphasis>how
</emphasis> harmful type A
3778 sharing is, and how beneficial the other types of sharing are.
3781 We start to answer this question by focusing on the net harm, from the
3782 standpoint of the industry as a whole, that sharing networks cause.
3783 The "net harm" to the industry as a whole is the amount by which type
3784 A sharing exceeds type B. If the record companies sold more records
3785 through sampling than they lost through substitution, then sharing
3786 networks would actually benefit music companies on balance. They would
3787 therefore have little
<emphasis>static
</emphasis> reason to resist
3792 Could that be true? Could the industry as a whole be gaining because
3793 of file sharing? Odd as that might sound, the data about CD sales
3794 actually suggest it might be close.
3797 In
2002, the RIAA reported that CD sales had fallen by
8.9 percent,
3798 from
882 million to
803 million units; revenues fell
6.7
3799 percent.
<footnote><para>
3801 See Recording Industry Association of America,
<citetitle>2002 Yearend Statistics
</citetitle>,
3803 <ulink url=
"http://free-culture.cc/notes/">link #
15</ulink>. A later
3804 report indicates even greater losses. See Recording Industry
3805 Association of America,
<citetitle>Some Facts About Music Piracy
</citetitle>,
25 June
2003,
3806 available at
<ulink url=
"http://free-culture.cc/notes/">link
3807 #
16</ulink>: "In the past four years, unit shipments of recorded music
3808 have fallen by
26 percent from
1.16 billion units in to
860 million
3809 units in
2002 in the United States (based on units shipped). In terms
3810 of sales, revenues are down
14 percent, from $
14.6 billion in to $
12.6
3811 billion last year (based on U.S. dollar value of shipments). The music
3812 industry worldwide has gone from a $
39 billion industry in
2000 down
3813 to a $
32 billion industry in
2002 (based on U.S. dollar value of
3816 This confirms a trend over the past few years. The RIAA blames
3817 Internet piracy for the trend, though there are many other causes that
3818 could account for this drop. SoundScan, for example, reports a more
3819 than
20 percent drop in the number of CDs released since
1999. That no
3820 doubt accounts for some of the decrease in sales. Rising prices could
3821 account for at least some of the loss. "From
1999 to
2001, the average
3822 price of a CD rose
7.2 percent, from $
13.04 to $
14.19."
<footnote>
3825 Jane Black, "Big Music's Broken Record," BusinessWeek online,
13
3826 February
2003, available at
3827 <ulink url=
"http://free-culture.cc/notes/">link #
17</ulink>.
3828 <indexterm><primary>Black, Jane
</primary></indexterm>
3831 Competition from other forms of media could also account for some of
3832 the decline. As Jane Black of
<citetitle>BusinessWeek
</citetitle> notes, "The
3833 soundtrack to the film
<citetitle>High Fidelity
</citetitle> has a list price of
3834 $
18.98. You could get the whole movie [on DVD] for
3835 $
19.99."
<footnote><para>
3842 <!-- PAGE BREAK 84 -->
3843 But let's assume the RIAA is right, and all of the decline in CD sales
3844 is because of Internet sharing. Here's the rub: In the same period
3845 that the RIAA estimates that
803 million CDs were sold, the RIAA
3846 estimates that
2.1 billion CDs were downloaded for free. Thus,
3847 although
2.6 times the total number of CDs sold were downloaded for
3848 free, sales revenue fell by just
6.7 percent.
3851 There are too many different things happening at the same time to
3852 explain these numbers definitively, but one conclusion is unavoidable:
3853 The recording industry constantly asks, "What's the difference between
3854 downloading a song and stealing a CD?"
—but their own numbers
3855 reveal the difference. If I steal a CD, then there is one less CD to
3856 sell. Every taking is a lost sale. But on the basis of the numbers the
3857 RIAA provides, it is absolutely clear that the same is not true of
3858 downloads. If every download were a lost sale
—if every use of
3859 Kazaa "rob[bed] the author of [his] profit"
—then the industry
3860 would have suffered a
100 percent drop in sales last year, not a
7
3861 percent drop. If
2.6 times the number of CDs sold were downloaded for
3862 free, and yet sales revenue dropped by just
6.7 percent, then there is
3863 a huge difference between "downloading a song and stealing a CD."
3866 These are the harms
—alleged and perhaps exaggerated but, let's
3867 assume, real. What of the benefits? File sharing may impose costs on
3868 the recording industry. What value does it produce in addition to
3872 One benefit is type C sharing
—making available content that
3873 is technically still under copyright but is no longer commercially
3874 available. This is not a small category of content. There are
3875 millions of tracks that are no longer commercially
3876 available.
<footnote><para>
3878 By one estimate,
75 percent of the music released by the major labels
3879 is no longer in print. See Online Entertainment and Copyright
3880 Law
—Coming Soon to a Digital Device Near You: Hearing Before the
3881 Senate Committee on the Judiciary,
107th Cong.,
1st sess. (
3 April
3882 2001) (prepared statement of the Future of Music Coalition), available
3883 at
<ulink url=
"http://free-culture.cc/notes/">link #
18</ulink>.
3885 And while it's conceivable that some of this content is not available
3886 because the artist producing the content doesn't want it to be made
3887 available, the vast majority of it is unavailable solely because the
3888 publisher or the distributor has decided it no longer makes economic
3889 sense
<emphasis>to the company
</emphasis> to make it available.
3892 In real space
—long before the Internet
—the market had a simple
3893 <!-- PAGE BREAK 85 -->
3894 response to this problem: used book and record stores. There are
3895 thousands of used book and used record stores in America
3896 today.
<footnote><para>
3898 While there are not good estimates of the number of used record stores in
3899 existence, in
2002, there were
7,
198 used book dealers in the United States,
3900 an increase of
20 percent since
1993. See Book Hunter Press,
<citetitle>The Quiet
3901 Revolution: The Expansion of the Used Book Market
</citetitle> (
2002), available at
3902 <ulink url=
"http://free-culture.cc/notes/">link #
19</ulink>. Used records accounted for $
260 million in sales in
2002. See
3904 Association of Recording Merchandisers, "
2002 Annual Survey
3907 <ulink url=
"http://free-culture.cc/notes/">link #
20</ulink>.
3909 These stores buy content from owners, then sell the content they
3910 buy. And under American copyright law, when they buy and sell this
3911 content,
<emphasis>even if the content is still under
3912 copyright
</emphasis>, the copyright owner doesn't get a dime. Used
3913 book and record stores are commercial entities; their owners make
3914 money from the content they sell; but as with cable companies before
3915 statutory licensing, they don't have to pay the copyright owner for
3916 the content they sell.
3918 <indexterm><primary>Bernstein, Leonard
</primary></indexterm>
3920 Type C sharing, then, is very much like used book stores or used
3921 record stores. It is different, of course, because the person making
3922 the content available isn't making money from making the content
3923 available. It is also different, of course, because in real space,
3924 when I sell a record, I don't have it anymore, while in cyberspace,
3925 when someone shares my
1949 recording of Bernstein's "Two Love Songs,"
3926 I still have it. That difference would matter economically if the
3927 owner of the copyright were selling the record in competition to my
3928 sharing. But we're talking about the class of content that is not
3929 currently commercially available. The Internet is making it available,
3930 through cooperative sharing, without competing with the market.
3933 It may well be, all things considered, that it would be better if the
3934 copyright owner got something from this trade. But just because it may
3935 well be better, it doesn't follow that it would be good to ban used book
3936 stores. Or put differently, if you think that type C sharing should be
3937 stopped, do you think that libraries and used book stores should be
3941 Finally, and perhaps most importantly, file-sharing networks enable
3942 type D sharing to occur
—the sharing of content that copyright owners
3943 want to have shared or for which there is no continuing copyright. This
3944 sharing clearly benefits authors and society. Science fiction author
3945 Cory Doctorow, for example, released his first novel,
<citetitle>Down and Out in
3946 the Magic Kingdom
</citetitle>, both free on-line and in bookstores on the same
3948 <!-- PAGE BREAK 86 -->
3949 day. His (and his publisher's) thinking was that the on-line distribution
3950 would be a great advertisement for the "real" book. People would read
3951 part on-line, and then decide whether they liked the book or not. If
3952 they liked it, they would be more likely to buy it. Doctorow's content is
3953 type D content. If sharing networks enable his work to be spread, then
3954 both he and society are better off. (Actually, much better off: It is a
3958 Likewise for work in the public domain: This sharing benefits society
3959 with no legal harm to authors at all. If efforts to solve the problem
3960 of type A sharing destroy the opportunity for type D sharing, then we
3961 lose something important in order to protect type A content.
3964 The point throughout is this: While the recording industry
3965 understandably says, "This is how much we've lost," we must also ask,
3966 "How much has society gained from p2p sharing? What are the
3967 efficiencies? What is the content that otherwise would be
3971 For unlike the piracy I described in the first section of this
3972 chapter, much of the "piracy" that file sharing enables is plainly
3973 legal and good. And like the piracy I described in chapter
3974 <xref xrefstyle=
"select: labelnumber" linkend=
"pirates"/>, much of
3975 this piracy is motivated by a new way of spreading content caused by
3976 changes in the technology of distribution. Thus, consistent with the
3977 tradition that gave us Hollywood, radio, the recording industry, and
3978 cable TV, the question we should be asking about file sharing is how
3979 best to preserve its benefits while minimizing (to the extent
3980 possible) the wrongful harm it causes artists. The question is one of
3981 balance. The law should seek that balance, and that balance will be
3982 found only with time.
3985 "But isn't the war just a war against illegal sharing? Isn't the target
3986 just what you call type A sharing?"
3989 You would think. And we should hope. But so far, it is not. The
3991 of the war purportedly on type A sharing alone has been felt far
3992 beyond that one class of sharing. That much is obvious from the
3994 case itself. When Napster told the district court that it had
3996 a technology to block the transfer of
99.4 percent of identified
3997 <!-- PAGE BREAK 87 -->
3998 infringing material, the district court told counsel for Napster
99.4
3999 percent was not good enough. Napster had to push the infringements
4000 "down to zero."
<footnote><para>
4002 See Transcript of Proceedings, In Re: Napster Copyright Litigation at
34-
4003 35 (N.D. Cal.,
11 July
2001), nos. MDL-
00-
1369 MHP, C
99-
5183
4006 <ulink url=
"http://free-culture.cc/notes/">link #
21</ulink>. For an
4007 account of the litigation and its toll on Napster, see Joseph Menn,
4008 <citetitle>All the Rave: The Rise and Fall of Shawn Fanning's Napster
</citetitle> (New
4009 York: Crown Business,
2003),
269–82.
4013 If
99.4 percent is not good enough, then this is a war on file-sharing
4014 technologies, not a war on copyright infringement. There is no way to
4015 assure that a p2p system is used
100 percent of the time in compliance
4016 with the law, any more than there is a way to assure that
100 percent of
4017 VCRs or
100 percent of Xerox machines or
100 percent of handguns
4018 are used in compliance with the law. Zero tolerance means zero p2p.
4019 The court's ruling means that we as a society must lose the benefits of
4020 p2p, even for the totally legal and beneficial uses they serve, simply to
4021 assure that there are zero copyright infringements caused by p2p.
4024 Zero tolerance has not been our history. It has not produced the
4025 content industry that we know today. The history of American law has
4026 been a process of balance. As new technologies changed the way content
4027 was distributed, the law adjusted, after some time, to the new
4028 technology. In this adjustment, the law sought to ensure the
4029 legitimate rights of creators while protecting innovation. Sometimes
4030 this has meant more rights for creators. Sometimes less.
4033 So, as we've seen, when "mechanical reproduction" threatened the
4034 interests of composers, Congress balanced the rights of composers
4035 against the interests of the recording industry. It granted rights to
4036 composers, but also to the recording artists: Composers were to be
4037 paid, but at a price set by Congress. But when radio started
4038 broadcasting the recordings made by these recording artists, and they
4039 complained to Congress that their "creative property" was not being
4040 respected (since the radio station did not have to pay them for the
4041 creativity it broadcast), Congress rejected their claim. An indirect
4045 Cable TV followed the pattern of record albums. When the courts
4046 rejected the claim that cable broadcasters had to pay for the content
4047 they rebroadcast, Congress responded by giving broadcasters a right to
4048 compensation, but at a level set by the law. It likewise gave cable
4049 companies the right to the content, so long as they paid the statutory
4054 <!-- PAGE BREAK 88 -->
4055 This compromise, like the compromise affecting records and player
4056 pianos, served two important goals
—indeed, the two central goals
4057 of any copyright legislation. First, the law assured that new
4058 innovators would have the freedom to develop new ways to deliver
4059 content. Second, the law assured that copyright holders would be paid
4060 for the content that was distributed. One fear was that if Congress
4061 simply required cable TV to pay copyright holders whatever they
4062 demanded for their content, then copyright holders associated with
4063 broadcasters would use their power to stifle this new technology,
4064 cable. But if Congress had permitted cable to use broadcasters'
4065 content for free, then it would have unfairly subsidized cable. Thus
4066 Congress chose a path that would assure
4067 <emphasis>compensation
</emphasis> without giving the past
4068 (broadcasters) control over the future (cable).
4070 <indexterm><primary>Betamax
</primary></indexterm>
4072 In the same year that Congress struck this balance, two major
4073 producers and distributors of film content filed a lawsuit against
4074 another technology, the video tape recorder (VTR, or as we refer to
4075 them today, VCRs) that Sony had produced, the Betamax. Disney's and
4076 Universal's claim against Sony was relatively simple: Sony produced a
4077 device, Disney and Universal claimed, that enabled consumers to engage
4078 in copyright infringement. Because the device that Sony built had a
4079 "record" button, the device could be used to record copyrighted movies
4080 and shows. Sony was therefore benefiting from the copyright
4081 infringement of its customers. It should therefore, Disney and
4082 Universal claimed, be partially liable for that infringement.
4085 There was something to Disney's and Universal's claim. Sony did
4086 decide to design its machine to make it very simple to record television
4087 shows. It could have built the machine to block or inhibit any direct
4088 copying from a television broadcast. Or possibly, it could have built the
4089 machine to copy only if there were a special "copy me" signal on the
4090 line. It was clear that there were many television shows that did not
4091 grant anyone permission to copy. Indeed, if anyone had asked, no
4092 doubt the majority of shows would not have authorized copying. And
4093 <!-- PAGE BREAK 89 -->
4094 in the face of this obvious preference, Sony could have designed its
4095 system to minimize the opportunity for copyright infringement. It did
4096 not, and for that, Disney and Universal wanted to hold it responsible
4097 for the architecture it chose.
4100 MPAA president Jack Valenti became the studios' most vocal
4101 champion. Valenti called VCRs "tapeworms." He warned, "When there are
4102 20,
30,
40 million of these VCRs in the land, we will be invaded by
4103 millions of `tapeworms,' eating away at the very heart and essence of
4104 the most precious asset the copyright owner has, his
4105 copyright."
<footnote><para>
4107 Copyright Infringements (Audio and Video Recorders): Hearing on
4108 S.
1758 Before the Senate Committee on the Judiciary,
97th Cong.,
1st
4109 and
2nd sess.,
459 (
1982) (testimony of Jack Valenti, president, Motion
4110 Picture Association of America, Inc.).
4112 "One does not have to be trained in sophisticated marketing and
4113 creative judgment," he told Congress, "to understand the devastation
4114 on the after-theater marketplace caused by the hundreds of millions of
4115 tapings that will adversely impact on the future of the creative
4116 community in this country. It is simply a question of basic economics
4117 and plain common sense."
<footnote><para>
4119 Copyright Infringements (Audio and Video Recorders),
475.
4121 Indeed, as surveys would later show,
4122 percent of VCR owners had movie libraries of ten videos or more
<footnote><para>
4124 <citetitle>Universal City Studios, Inc
</citetitle>. v.
<citetitle>Sony Corp. of America
</citetitle>,
480 F. Supp.
429,
4127 — a use the Court would later hold was not "fair." By
4128 "allowing VCR owners to copy freely by the means of an exemption from
4129 copyright infringementwithout creating a mechanism to compensate
4130 copyrightowners," Valenti testified, Congress would "take from the
4131 owners the very essence of their property: the exclusive right to
4132 control who may use their work, that is, who may copy it and thereby
4133 profit from its reproduction."
<footnote><para>
4135 Copyright Infringements (Audio and Video Recorders),
485 (testimony
4140 It took eight years for this case to be resolved by the Supreme
4141 Court. In the interim, the Ninth Circuit Court of Appeals, which
4142 includes Hollywood in its jurisdiction
—leading Judge Alex
4143 Kozinski, who sits on that court, refers to it as the "Hollywood
4144 Circuit"
—held that Sony would be liable for the copyright
4145 infringement made possible by its machines. Under the Ninth Circuit's
4146 rule, this totally familiar technology
—which Jack Valenti had
4147 called "the Boston Strangler of the American film industry" (worse
4148 yet, it was a
<emphasis>Japanese
</emphasis> Boston Strangler of the
4149 American film industry)
—was an illegal
4150 technology.
<footnote><para>
4152 <citetitle>Universal City Studios, Inc
</citetitle>. v.
<citetitle>Sony Corp. of America
</citetitle>,
659 F.
2d
963 (
9th Cir.
4155 <indexterm><primary>Kozinski, Alex
</primary></indexterm>
4158 But the Supreme Court reversed the decision of the Ninth Circuit.
4160 <!-- PAGE BREAK 90 -->
4161 And in its reversal, the Court clearly articulated its understanding of
4162 when and whether courts should intervene in such disputes. As the
4167 Sound policy, as well as history, supports our consistent deference
4168 to Congress when major technological innovations alter the
4170 for copyrighted materials. Congress has the constitutional
4172 and the institutional ability to accommodate fully the
4173 varied permutations of competing interests that are inevitably
4175 by such new technology.
<footnote><para>
4177 <citetitle>Sony Corp. of America
</citetitle> v.
<citetitle>Universal City Studios, Inc
</citetitle>.,
464 U.S.
417,
431 (
1984).
4182 Congress was asked to respond to the Supreme Court's decision. But as
4183 with the plea of recording artists about radio broadcasts, Congress
4184 ignored the request. Congress was convinced that American film got
4185 enough, this "taking" notwithstanding. If we put these cases
4186 together, a pattern is clear:
4189 <informaltable id=
"t1">
4190 <tgroup cols=
"4" align=
"char">
4194 <entry>WHOSE VALUE WAS "PIRATED"
</entry>
4195 <entry>RESPONSE OF THE COURTS
</entry>
4196 <entry>RESPONSE OF CONGRESS
</entry>
4201 <entry>Recordings
</entry>
4202 <entry>Composers
</entry>
4203 <entry>No protection
</entry>
4204 <entry>Statutory license
</entry>
4207 <entry>Radio
</entry>
4208 <entry>Recording artists
</entry>
4210 <entry>Nothing
</entry>
4213 <entry>Cable TV
</entry>
4214 <entry>Broadcasters
</entry>
4215 <entry>No protection
</entry>
4216 <entry>Statutory license
</entry>
4220 <entry>Film creators
</entry>
4221 <entry>No protection
</entry>
4222 <entry>Nothing
</entry>
4229 In each case throughout our history, a new technology changed the
4230 way content was distributed.
<footnote><para>
4232 These are the most important instances in our history, but there are other
4233 cases as well. The technology of digital audio tape (DAT), for example,
4234 was regulated by Congress to minimize the risk of piracy. The remedy
4235 Congress imposed did burden DAT producers, by taxing tape sales and
4236 controlling the technology of DAT. See Audio Home Recording Act of
4237 1992 (Title
17 of the
<citetitle>United States Code
</citetitle>), Pub. L. No.
102-
563,
106 Stat.
4238 4237, codified at
17 U.S.C. §
1001. Again, however, this regulation did not
4239 eliminate the opportunity for free riding in the sense I've described. See
4240 Lessig,
<citetitle>Future
</citetitle>,
71. See also Picker, "From Edison to the Broadcast Flag,"
4241 <citetitle>University of Chicago Law Review
</citetitle> 70 (
2003):
293–96.
4242 <indexterm><primary>Picker, Randal C.
</primary></indexterm>
4244 In each case, throughout our history,
4245 that change meant that someone got a "free ride" on someone else's
4249 In
<emphasis>none
</emphasis> of these cases did either the courts or
4250 Congress eliminate all free riding. In
<emphasis>none
</emphasis> of
4251 these cases did the courts or Congress insist that the law should
4252 assure that the copyright holder get all the value that his copyright
4253 created. In every case, the copyright owners complained of "piracy."
4254 In every case, Congress acted to recognize some of the legitimacy in
4255 the behavior of the "pirates." In each case, Congress allowed some new
4256 technology to benefit from content made before. It balanced the
4258 <!-- PAGE BREAK 91 -->
4261 When you think across these examples, and the other examples that
4262 make up the first four chapters of this section, this balance makes
4263 sense. Was Walt Disney a pirate? Would doujinshi be better if creators
4264 had to ask permission? Should tools that enable others to capture and
4265 spread images as a way to cultivate or criticize our culture be better
4267 Is it really right that building a search engine should expose you
4268 to $
15 million in damages? Would it have been better if Edison had
4269 controlled film? Should every cover band have to hire a lawyer to get
4270 permission to record a song?
4273 We could answer yes to each of these questions, but our tradition
4274 has answered no. In our tradition, as the Supreme Court has stated,
4275 copyright "has never accorded the copyright owner complete control
4276 over all possible uses of his work."
<footnote><para>
4278 <citetitle>Sony Corp. of America
</citetitle> v.
<citetitle>Universal City Studios, Inc
</citetitle>.,
464 U.S.
417,
4281 Instead, the particular uses that the law regulates have been defined
4282 by balancing the good that comes from granting an exclusive right
4283 against the burdens such an exclusive right creates. And this
4284 balancing has historically been done
<emphasis>after
</emphasis> a
4285 technology has matured, or settled into the mix of technologies that
4286 facilitate the distribution of content.
4289 We should be doing the same thing today. The technology of the
4290 Internet is changing quickly. The way people connect to the Internet
4291 (wires vs. wireless) is changing very quickly. No doubt the network
4292 should not become a tool for "stealing" from artists. But neither
4293 should the law become a tool to entrench one particular way in which
4294 artists (or more accurately, distributors) get paid. As I describe in
4295 some detail in the last chapter of this book, we should be securing
4296 income to artists while we allow the market to secure the most
4297 efficient way to promote and distribute content. This will require
4298 changes in the law, at least in the interim. These changes should be
4299 designed to balance the protection of the law against the strong
4300 public interest that innovation continue.
4304 <!-- PAGE BREAK 92 -->
4305 This is especially true when a new technology enables a vastly
4306 superior mode of distribution. And this p2p has done. P2p technologies
4307 can be ideally efficient in moving content across a widely diverse
4308 network. Left to develop, they could make the network vastly more
4309 efficient. Yet these "potential public benefits," as John Schwartz
4310 writes in
<citetitle>The New York Times
</citetitle>, "could be delayed in the P2P
4311 fight."
<footnote><para>
4313 John Schwartz, "New Economy: The Attack on Peer-to-Peer Software
4314 Echoes Past Efforts,"
<citetitle>New York Times
</citetitle>,
22 September
2003, C3.
4316 Yet when anyone begins to talk about "balance," the copyright warriors
4317 raise a different argument. "All this hand waving about balance and
4318 incentives," they say, "misses a fundamental point. Our content," the
4319 warriors insist, "is our
<emphasis>property
</emphasis>. Why should we
4320 wait for Congress to `rebalance' our property rights? Do you have to
4321 wait before calling the police when your car has been stolen? And why
4322 should Congress deliberate at all about the merits of this theft? Do
4323 we ask whether the car thief had a good use for the car before we
4327 "It is
<emphasis>our property
</emphasis>," the warriors insist. "And
4328 it should be protected just as any other property is protected."
4330 <!-- PAGE BREAK 93 -->
4334 <part id=
"c-property">
4335 <title>"PROPERTY"</title>
4339 <!-- PAGE BREAK 94 -->
4340 The copyright warriors are right: A copyright is a kind of
4341 property. It can be owned and sold, and the law protects against its
4342 theft. Ordinarily, the copyright owner gets to hold out for any price he
4343 wants. Markets reckon the supply and demand that partially determine
4344 the price she can get.
4347 But in ordinary language, to call a copyright a "property" right is a
4348 bit misleading, for the property of copyright is an odd kind of
4349 property. Indeed, the very idea of property in any idea or any
4350 expression is very odd. I understand what I am taking when I take the
4351 picnic table you put in your backyard. I am taking a thing, the picnic
4352 table, and after I take it, you don't have it. But what am I taking
4353 when I take the good
<emphasis>idea
</emphasis> you had to put a picnic
4354 table in the backyard
—by, for example, going to Sears, buying a
4355 table, and putting it in my backyard? What is the thing I am taking
4359 The point is not just about the thingness of picnic tables versus
4360 ideas, though that's an important difference. The point instead is that
4361 <!-- PAGE BREAK 95 -->
4362 in the ordinary case
—indeed, in practically every case except for a
4364 range of exceptions
—ideas released to the world are free. I don't
4365 take anything from you when I copy the way you dress
—though I
4366 might seem weird if I did it every day, and especially weird if you are a
4367 woman. Instead, as Thomas Jefferson said (and as is especially true
4368 when I copy the way someone else dresses), "He who receives an idea
4369 from me, receives instruction himself without lessening mine; as he who
4370 lights his taper at mine, receives light without darkening me."
<footnote><para>
4372 Letter from Thomas Jefferson to Isaac McPherson (
13 August
1813) in
4373 <citetitle>The Writings of Thomas Jefferson
</citetitle>, vol.
6 (Andrew A. Lipscomb and Albert
4374 Ellery Bergh, eds.,
1903),
330,
333–34.
4378 The exceptions to free use are ideas and expressions within the
4379 reach of the law of patent and copyright, and a few other domains that
4380 I won't discuss here. Here the law says you can't take my idea or
4382 without my permission: The law turns the intangible into
4386 But how, and to what extent, and in what form
—the details,
4387 in other words
—matter. To get a good sense of how this practice
4388 of turning the intangible into property emerged, we need to place this
4389 "property" in its proper context.
<footnote><para>
4391 As the legal realists taught American law, all property rights are
4392 intangible. A property right is simply a right that an individual has
4393 against the world to do or not do certain things that may or may not
4394 attach to a physical object. The right itself is intangible, even if
4395 the object to which it is (metaphorically) attached is tangible. See
4396 Adam Mossoff, "What Is Property? Putting the Pieces Back Together,"
4397 <citetitle>Arizona Law Review
</citetitle> 45 (
2003):
373,
429 n.
241.
4401 My strategy in doing this will be the same as my strategy in the
4402 preceding part. I offer four stories to help put the idea of
4403 "copyright material is property" in context. Where did the idea come
4404 from? What are its limits? How does it function in practice? After
4405 these stories, the significance of this true
4406 statement
—"copyright material is property"
— will be a bit
4407 more clear, and its implications will be revealed as quite different
4408 from the implications that the copyright warriors would have us draw.
4412 <!-- PAGE BREAK 96 -->
4413 <chapter label=
"6" id=
"founders">
4414 <title>CHAPTER SIX: Founders
</title>
4415 <indexterm><primary>Henry V
</primary></indexterm>
4417 William Shakespeare wrote
<citetitle>Romeo and Juliet
</citetitle> in
1595. The play
4418 was first published in
1597. It was the eleventh major play that
4419 Shakespeare had written. He would continue to write plays through
4420 1613, and the plays that he wrote have continued to define
4421 Anglo-American culture ever since. So deeply have the works of a
4422 sixteenth-century writer seeped into our culture that we often don't
4423 even recognize their source. I once overheard someone commenting on
4424 Kenneth Branagh's adaptation of Henry V: "I liked it, but Shakespeare
4425 is so full of clichés."
4428 In
1774, almost
180 years after
<citetitle>Romeo and Juliet
</citetitle> was written, the
4429 "copy-right" for the work was still thought by many to be the exclusive
4430 right of a single London publisher, Jacob Tonson.
<footnote><para>
4432 Jacob Tonson is typically remembered for his associations with prominent
4433 eighteenth-century literary figures, especially John Dryden, and for his
4434 handsome "definitive editions" of classic works. In addition to
<citetitle>Romeo and
4435 Juliet
</citetitle>, he published an astonishing array of works that still remain at the
4436 heart of the English canon, including collected works of Shakespeare, Ben
4437 Jonson, John Milton, and John Dryden. See Keith Walker, "Jacob Tonson,
4438 Bookseller,"
<citetitle>American Scholar
</citetitle> 61:
3 (
1992):
424–31.
4440 Tonson was the most prominent of a small group of publishers called
4441 the Conger
<footnote><para>
4443 Lyman Ray Patterson,
<citetitle>Copyright in Historical Perspective
</citetitle> (Nashville:
4444 Vanderbilt University Press,
1968),
151–52.
4446 who controlled bookselling in England during the eighteenth
4447 century. The Conger claimed a perpetual right to control the "copy" of
4448 books that they had acquired from authors. That perpetual right meant
4450 <!-- PAGE BREAK 97 -->
4451 one else could publish copies of a book to which they held the
4452 copyright. Prices of the classics were thus kept high; competition to
4453 produce better or cheaper editions was eliminated.
4456 Now, there's something puzzling about the year
1774 to anyone who
4457 knows a little about copyright law. The better-known year in the
4458 history of copyright is
1710, the year that the British Parliament
4459 adopted the first "copyright" act. Known as the Statute of Anne, the
4460 act stated that all published works would get a copyright term of
4461 fourteen years, renewable once if the author was alive, and that all
4462 works already published by
1710 would get a single term of twenty-one
4463 additional years.
<footnote><para>
4465 As Siva Vaidhyanathan nicely argues, it is erroneous to call this a
4466 "copyright law." See Vaidhyanathan,
<citetitle>Copyrights and Copywrongs
</citetitle>,
40.
4467 <indexterm><primary>Vaidhyanathan, Siva
</primary></indexterm>
4468 </para></footnote> Under this law,
<citetitle>Romeo and Juliet
</citetitle> should have been
4469 free in
1731. So why was there any issue about it still being under
4470 Tonson's control in
1774?
4473 The reason is that the English hadn't yet agreed on what a "copyright"
4474 was
—indeed, no one had. At the time the English passed the
4475 Statute of Anne, there was no other legislation governing copyrights.
4476 The last law regulating publishers, the Licensing Act of
1662, had
4477 expired in
1695. That law gave publishers a monopoly over publishing,
4478 as a way to make it easier for the Crown to control what was
4479 published. But after it expired, there was no positive law that said
4480 that the publishers, or "Stationers," had an exclusive right to print
4482 <indexterm><primary>Licensing Act (
1662)
</primary></indexterm>
4485 There was no
<emphasis>positive
</emphasis> law, but that didn't mean
4486 that there was no law. The Anglo-American legal tradition looks to
4487 both the words of legislatures and the words of judges to know the
4488 rules that are to govern how people are to behave. We call the words
4489 from legislatures "positive law." We call the words from judges
4490 "common law." The common law sets the background against which
4491 legislatures legislate; the legislature, ordinarily, can trump that
4492 background only if it passes a law to displace it. And so the real
4493 question after the licensing statutes had expired was whether the
4494 common law protected a copyright, independent of any positive law.
4497 This question was important to the publishers, or "booksellers," as
4498 they were called, because there was growing competition from foreign
4499 publishers. The Scottish, in particular, were increasingly publishing
4500 and exporting books to England. That competition reduced the profits
4502 <!-- PAGE BREAK 98 -->
4503 of the Conger, which reacted by demanding that Parliament pass a law
4504 to again give them exclusive control over publishing. That demand
4506 resulted in the Statute of Anne.
4509 The Statute of Anne granted the author or "proprietor" of a book an
4510 exclusive right to print that book. In an important limitation,
4511 however, and to the horror of the booksellers, the law gave the
4512 bookseller that right for a limited term. At the end of that term, the
4513 copyright "expired," and the work would then be free and could be
4514 published by anyone. Or so the legislature is thought to have
4518 Now, the thing to puzzle about for a moment is this: Why would
4519 Parliament limit the exclusive right? Not why would they limit it to
4520 the particular limit they set, but why would they limit the right
4521 <emphasis>at all?
</emphasis>
4524 For the booksellers, and the authors whom they represented, had a very
4525 strong claim. Take
<citetitle>Romeo and Juliet
</citetitle> as an example: That play
4526 was written by Shakespeare. It was his genius that brought it into the
4527 world. He didn't take anybody's property when he created this play
4528 (that's a controversial claim, but never mind), and by his creating
4529 this play, he didn't make it any harder for others to craft a play. So
4530 why is it that the law would ever allow someone else to come along and
4531 take Shakespeare's play without his, or his estate's, permission? What
4532 reason is there to allow someone else to "steal" Shakespeare's work?
4535 The answer comes in two parts. We first need to see something special
4536 about the notion of "copyright" that existed at the time of the
4537 Statute of Anne. Second, we have to see something important about
4541 First, about copyright. In the last three hundred years, we have come
4542 to apply the concept of "copyright" ever more broadly. But in
1710, it
4543 wasn't so much a concept as it was a very particular right. The
4544 copyright was born as a very specific set of restrictions: It forbade
4545 others from reprinting a book. In
1710, the "copy-right" was a right
4546 to use a particular machine to replicate a particular work. It did not
4547 go beyond that very narrow right. It did not control any more
4549 <!-- PAGE BREAK 99 -->
4550 a work could be
<emphasis>used
</emphasis>. Today the right includes a
4551 large collection of restrictions on the freedom of others: It grants
4552 the author the exclusive right to copy, the exclusive right to
4553 distribute, the exclusive right to perform, and so on.
4556 So, for example, even if the copyright to Shakespeare's works were
4557 perpetual, all that would have meant under the original meaning of the
4558 term was that no one could reprint Shakespeare's work without the
4559 permission of the Shakespeare estate. It would not have controlled
4560 anything, for example, about how the work could be performed, whether
4561 the work could be translated, or whether Kenneth Branagh would be
4562 allowed to make his films. The "copy-right" was only an exclusive
4563 right to print
—no less, of course, but also no more.
4565 <indexterm><primary>Henry VIII, King of England
</primary></indexterm>
4567 Even that limited right was viewed with skepticism by the British.
4568 They had had a long and ugly experience with "exclusive rights,"
4569 especially "exclusive rights" granted by the Crown. The English had
4570 fought a civil war in part about the Crown's practice of handing out
4571 monopolies
—especially monopolies for works that already
4572 existed. King Henry VIII granted a patent to print the Bible and a
4573 monopoly to Darcy to print playing cards. The English Parliament began
4574 to fight back against this power of the Crown. In
1656, it passed the
4575 Statute of Monopolies, limiting monopolies to patents for new
4576 inventions. And by
1710, Parliament was eager to deal with the growing
4577 monopoly in publishing.
4580 Thus the "copy-right," when viewed as a monopoly right, was naturally
4581 viewed as a right that should be limited. (However convincing the
4582 claim that "it's my property, and I should have it forever," try
4583 sounding convincing when uttering, "It's my monopoly, and I should
4584 have it forever.") The state would protect the exclusive right, but
4585 only so long as it benefited society. The British saw the harms from
4586 specialinterest favors; they passed a law to stop them.
4589 Second, about booksellers. It wasn't just that the copyright was a
4590 monopoly. It was also that it was a monopoly held by the booksellers.
4591 Booksellers sound quaint and harmless to us. They were not viewed
4592 as harmless in seventeenth-century England. Members of the Conger
4593 <!-- PAGE BREAK 100 -->
4595 were increasingly seen as monopolists of the worst
4596 kind
—tools of the Crown's repression, selling the liberty of
4597 England to guarantee themselves a monopoly profit. The attacks against
4598 these monopolists were harsh: Milton described them as "old patentees
4599 and monopolizers in the trade of book-selling"; they were "men who do
4600 not therefore labour in an honest profession to which learning is
4601 indetted."
<footnote><para>
4604 Philip Wittenberg,
<citetitle>The Protection and Marketing of Literary
4605 Property
</citetitle> (New York: J. Messner, Inc.,
1937),
31.
4609 Many believed the power the booksellers exercised over the spread of
4610 knowledge was harming that spread, just at the time the Enlightenment
4611 was teaching the importance of education and knowledge spread
4612 generally. The idea that knowledge should be free was a hallmark of
4613 the time, and these powerful commercial interests were interfering
4617 To balance this power, Parliament decided to increase competition
4618 among booksellers, and the simplest way to do that was to spread the
4619 wealth of valuable books. Parliament therefore limited the term of
4620 copyrights, and thereby guaranteed that valuable books would become
4621 open to any publisher to publish after a limited time. Thus the setting
4622 of the term for existing works to just twenty-one years was a
4624 to fight the power of the booksellers. The limitation on terms was
4625 an indirect way to assure competition among publishers, and thus the
4626 construction and spread of culture.
4629 When
1731 (
1710 +
21) came along, however, the booksellers were
4630 getting anxious. They saw the consequences of more competition, and
4631 like every competitor, they didn't like them. At first booksellers simply
4632 ignored the Statute of Anne, continuing to insist on the perpetual right
4633 to control publication. But in
1735 and
1737, they tried to persuade
4634 Parliament to extend their terms. Twenty-one years was not enough,
4635 they said; they needed more time.
4638 Parliament rejected their requests. As one pamphleteer put it, in
4639 words that echo today,
4643 I see no Reason for granting a further Term now, which will not
4644 hold as well for granting it again and again, as often as the Old
4645 <!-- PAGE BREAK 101 -->
4646 ones Expire; so that should this Bill pass, it will in Effect be
4647 establishing a perpetual Monopoly, a Thing deservedly odious in the
4648 Eye of the Law; it will be a great Cramp to Trade, a Discouragement to
4649 Learning, no Benefit to the Authors, but a general Tax on the Publick;
4650 and all this only to increase the private Gain of the
4651 Booksellers.
<footnote><para>
4653 A Letter to a Member of Parliament concerning the Bill now depending
4654 in the House of Commons, for making more effectual an Act in the
4655 Eighth Year of the Reign of Queen Anne, entitled, An Act for the
4656 Encouragement of Learning, by Vesting the Copies of Printed Books in
4657 the Authors or Purchasers of such Copies, during the Times therein
4658 mentioned (London,
1735), in Brief Amici Curiae of Tyler T. Ochoa et
4659 al.,
8,
<citetitle>Eldred
</citetitle> v.
<citetitle>Ashcroft
</citetitle>,
537 U.S.
186 (
2003) (No.
01-
618).
4664 Having failed in Parliament, the publishers turned to the courts in a
4665 series of cases. Their argument was simple and direct: The Statute of
4666 Anne gave authors certain protections through positive law, but those
4667 protections were not intended as replacements for the common law.
4668 Instead, they were intended simply to supplement the common law.
4669 Under common law, it was already wrong to take another person's
4670 creative "property" and use it without his permission. The Statute of
4671 Anne, the booksellers argued, didn't change that. Therefore, just
4672 because the protections of the Statute of Anne expired, that didn't
4673 mean the protections of the common law expired: Under the common law
4674 they had the right to ban the publication of a book, even if its
4675 Statute of Anne copyright had expired. This, they argued, was the only
4676 way to protect authors.
4679 This was a clever argument, and one that had the support of some of
4680 the leading jurists of the day. It also displayed extraordinary
4681 chutzpah. Until then, as law professor Raymond Patterson has put it,
4682 "The publishers
… had as much concern for authors as a cattle
4683 rancher has for cattle."
<footnote><para>
4685 Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use,"
<citetitle>Vanderbilt
4686 Law Review
</citetitle> 40 (
1987):
28. For a wonderfully compelling account, see
4687 Vaidhyanathan,
37–48.
4688 <indexterm><primary>Vaidhyanathan, Siva
</primary></indexterm>
4690 The bookseller didn't care squat for the rights of the author. His
4691 concern was the monopoly profit that the author's work gave.
4694 The booksellers' argument was not accepted without a fight.
4695 The hero of this fight was a Scottish bookseller named Alexander
4696 Donaldson.
<footnote><para>
4698 For a compelling account, see David Saunders,
<citetitle>Authorship and Copyright
</citetitle>
4699 (London: Routledge,
1992),
62–69.
4703 Donaldson was an outsider to the London Conger. He began his
4704 career in Edinburgh in
1750. The focus of his business was inexpensive
4705 reprints "of standard works whose copyright term had expired," at least
4706 under the Statute of Anne.
<footnote><para>
4708 Mark Rose,
<citetitle>Authors and Owners
</citetitle> (Cambridge: Harvard University Press,
4710 <indexterm><primary>Rose, Mark
</primary></indexterm>
4712 Donaldson's publishing house prospered
4713 <!-- PAGE BREAK 102 -->
4714 and became "something of a center for literary Scotsmen." "[A]mong
4715 them," Professor Mark Rose writes, was "the young James Boswell
4716 who, together with his friend Andrew Erskine, published an anthology
4717 of contemporary Scottish poems with Donaldson."
<footnote><para>
4721 <indexterm><primary>Boswell, James
</primary></indexterm>
4722 <indexterm><primary>Erskine, Andrew
</primary></indexterm>
4725 When the London booksellers tried to shut down Donaldson's shop in
4726 Scotland, he responded by moving his shop to London, where he sold
4727 inexpensive editions "of the most popular English books, in defiance
4728 of the supposed common law right of Literary
4729 Property."
<footnote><para>
4731 Lyman Ray Patterson,
<citetitle>Copyright in Historical Perspective
</citetitle>,
167 (quoting
4734 His books undercut the Conger prices by
30 to
50 percent, and he
4735 rested his right to compete upon the ground that, under the Statute of
4736 Anne, the works he was selling had passed out of protection.
4739 The London booksellers quickly brought suit to block "piracy" like
4740 Donaldson's. A number of actions were successful against the "pirates,"
4741 the most important early victory being
<citetitle>Millar
</citetitle> v.
<citetitle>Taylor
</citetitle>.
4744 Millar was a bookseller who in
1729 had purchased the rights to James
4745 Thomson's poem "The Seasons." Millar complied with the requirements of
4746 the Statute of Anne, and therefore received the full protection of the
4747 statute. After the term of copyright ended, Robert Taylor began
4748 printing a competing volume. Millar sued, claiming a perpetual common
4749 law right, the Statute of Anne notwithstanding.
<footnote><para>
4751 Howard B. Abrams, "The Historic Foundation of American Copyright Law:
4752 Exploding the Myth of Common Law Copyright,"
<citetitle>Wayne Law Review
</citetitle> 29
4756 <indexterm id=
"idxmansfield2" class='startofrange'
>
4757 <primary>Mansfield, William Murray, Lord
</primary>
4760 Astonishingly to modern lawyers, one of the greatest judges in English
4761 history, Lord Mansfield, agreed with the booksellers. Whatever
4762 protection the Statute of Anne gave booksellers, it did not, he held,
4763 extinguish any common law right. The question was whether the common
4764 law would protect the author against subsequent "pirates."
4765 Mansfield's answer was yes: The common law would bar Taylor from
4766 reprinting Thomson's poem without Millar's permission. That common law
4767 rule thus effectively gave the booksellers a perpetual right to
4768 control the publication of any book assigned to them.
4771 Considered as a matter of abstract justice
—reasoning as if
4772 justice were just a matter of logical deduction from first
4773 principles
—Mansfield's conclusion might make some sense. But
4774 what it ignored was the larger issue that Parliament had struggled
4775 with in
1710: How best to limit
4776 <!-- PAGE BREAK 103 -->
4777 the monopoly power of publishers? Parliament's strategy was to offer a
4778 term for existing works that was long enough to buy peace in
1710, but
4779 short enough to assure that culture would pass into competition within
4780 a reasonable period of time. Within twenty-one years, Parliament
4781 believed, Britain would mature from the controlled culture that the
4782 Crown coveted to the free culture that we inherited.
4784 <indexterm startref=
"idxmansfield2" class='endofrange'
/>
4786 The fight to defend the limits of the Statute of Anne was not to end
4787 there, however, and it is here that Donaldson enters the mix.
4789 <indexterm><primary>Beckett, Thomas
</primary></indexterm>
4791 Millar died soon after his victory, so his case was not appealed. His
4792 estate sold Thomson's poems to a syndicate of printers that included
4793 Thomas Beckett.
<footnote><para>
4797 Donaldson then released an unauthorized edition
4798 of Thomson's works. Beckett, on the strength of the decision in
<citetitle>Millar
</citetitle>,
4799 got an injunction against Donaldson. Donaldson appealed the case to
4800 the House of Lords, which functioned much like our own Supreme
4801 Court. In February of
1774, that body had the chance to interpret the
4802 meaning of Parliament's limits from sixty years before.
4805 As few legal cases ever do,
<citetitle>Donaldson
</citetitle> v.
<citetitle>Beckett
</citetitle> drew an
4806 enormous amount of attention throughout Britain. Donaldson's lawyers
4807 argued that whatever rights may have existed under the common law, the
4808 Statute of Anne terminated those rights. After passage of the Statute
4809 of Anne, the only legal protection for an exclusive right to control
4810 publication came from that statute. Thus, they argued, after the term
4811 specified in the Statute of Anne expired, works that had been
4812 protected by the statute were no longer protected.
4815 The House of Lords was an odd institution. Legal questions were
4816 presented to the House and voted upon first by the "law lords,"
4817 members of special legal distinction who functioned much like the
4818 Justices in our Supreme Court. Then, after the law lords voted, the
4819 House of Lords generally voted.
4822 The reports about the law lords' votes are mixed. On some counts,
4823 it looks as if perpetual copyright prevailed. But there is no ambiguity
4824 <!-- PAGE BREAK 104 -->
4825 about how the House of Lords voted as whole. By a two-to-one majority
4826 (
22 to
11) they voted to reject the idea of perpetual copyrights.
4827 Whatever one's understanding of the common law, now a copyright was
4828 fixed for a limited time, after which the work protected by copyright
4829 passed into the public domain.
4832 "The public domain." Before the case of
<citetitle>Donaldson
</citetitle>
4833 v.
<citetitle>Beckett
</citetitle>, there was no clear idea of a public domain in
4834 England. Before
1774, there was a strong argument that common law
4835 copyrights were perpetual. After
1774, the public domain was
4836 born. For the first time in Anglo-American history, the legal control
4837 over creative works expired, and the greatest works in English
4838 history
—including those of Shakespeare, Bacon, Milton, Johnson,
4839 and Bunyan
—were free of legal restraint.
4840 <indexterm><primary>Bacon, Francis
</primary></indexterm>
4841 <indexterm><primary>Bunyan, John
</primary></indexterm>
4842 <indexterm><primary>Johnson, Samuel
</primary></indexterm>
4843 <indexterm><primary>Milton, John
</primary></indexterm>
4844 <indexterm><primary>Shakespeare, William
</primary></indexterm>
4847 It is hard for us to imagine, but this decision by the House of Lords
4848 fueled an extraordinarily popular and political reaction. In Scotland,
4849 where most of the "pirate publishers" did their work, people
4850 celebrated the decision in the streets. As the
<citetitle>Edinburgh Advertiser
</citetitle>
4851 reported, "No private cause has so much engrossed the attention of the
4852 public, and none has been tried before the House of Lords in the
4853 decision of which so many individuals were interested." "Great
4854 rejoicing in Edinburgh upon victory over literary property: bonfires
4855 and illuminations."
<footnote><para>
4861 In London, however, at least among publishers, the reaction was
4862 equally strong in the opposite direction. The
<citetitle>Morning Chronicle
</citetitle>
4867 By the above decision
… near
200,
000 pounds worth of what was
4868 honestly purchased at public sale, and which was yesterday thought
4869 property is now reduced to nothing. The Booksellers of London and
4870 Westminster, many of whom sold estates and houses to purchase
4871 Copy-right, are in a manner ruined, and those who after many years
4872 industry thought they had acquired a competency to provide for their
4873 families now find themselves without a shilling to devise to their
4874 successors.
<footnote><para>
4881 <!-- PAGE BREAK 105 -->
4882 "Ruined" is a bit of an exaggeration. But it is not an exaggeration to
4883 say that the change was profound. The decision of the House of Lords
4884 meant that the booksellers could no longer control how culture in
4885 England would grow and develop. Culture in England was thereafter
4886 <emphasis>free
</emphasis>. Not in the sense that copyrights would not
4887 be respected, for of course, for a limited time after a work was
4888 published, the bookseller had an exclusive right to control the
4889 publication of that book. And not in the sense that books could be
4890 stolen, for even after a copyright expired, you still had to buy the
4891 book from someone. But
<emphasis>free
</emphasis> in the sense that the
4892 culture and its growth would no longer be controlled by a small group
4893 of publishers. As every free market does, this free market of free
4894 culture would grow as the consumers and producers chose. English
4895 culture would develop as the many English readers chose to let it
4896 develop
— chose in the books they bought and wrote; chose in the
4897 memes they repeated and endorsed. Chose in a
<emphasis>competitive
4898 context
</emphasis>, not a context in which the choices about what
4899 culture is available to people and how they get access to it are made
4900 by the few despite the wishes of the many.
4903 At least, this was the rule in a world where the Parliament is
4904 antimonopoly, resistant to the protectionist pleas of publishers. In a
4905 world where the Parliament is more pliant, free culture would be less
4908 <!-- PAGE BREAK 106 -->
4910 <chapter label=
"7" id=
"recorders">
4911 <title>CHAPTER SEVEN: Recorders
</title>
4913 Jon Else is a filmmaker. He is best known for his documentaries and
4914 has been very successful in spreading his art. He is also a teacher, and
4915 as a teacher myself, I envy the loyalty and admiration that his students
4916 feel for him. (I met, by accident, two of his students at a dinner party.
4920 Else worked on a documentary that I was involved in. At a break,
4921 he told me a story about the freedom to create with film in America
4925 In
1990, Else was working on a documentary about Wagner's Ring
4926 Cycle. The focus was stagehands at the San Francisco Opera.
4927 Stagehands are a particularly funny and colorful element of an opera.
4928 During a show, they hang out below the stage in the grips' lounge and
4929 in the lighting loft. They make a perfect contrast to the art on the
4931 <indexterm><primary>San Francisco Opera
</primary></indexterm>
4934 During one of the performances, Else was shooting some stagehands
4935 playing checkers. In one corner of the room was a television set.
4936 Playing on the television set, while the stagehands played checkers
4937 and the opera company played Wagner, was
<citetitle>The Simpsons
</citetitle>. As Else judged
4938 <!-- PAGE BREAK 107 -->
4939 it, this touch of cartoon helped capture the flavor of what was special
4943 Years later, when he finally got funding to complete the film, Else
4944 attempted to clear the rights for those few seconds of
<citetitle>The Simpsons
</citetitle>.
4945 For of course, those few seconds are copyrighted; and of course, to use
4946 copyrighted material you need the permission of the copyright owner,
4947 unless "fair use" or some other privilege applies.
4950 Else called
<citetitle>Simpsons
</citetitle> creator Matt Groening's office to get permission.
4951 Groening approved the shot. The shot was a four-and-a-halfsecond image
4952 on a tiny television set in the corner of the room. How could it hurt?
4953 Groening was happy to have it in the film, but he told Else to contact
4954 Gracie Films, the company that produces the program.
4955 <indexterm><primary>Gracie Films
</primary></indexterm>
4958 Gracie Films was okay with it, too, but they, like Groening, wanted
4959 to be careful. So they told Else to contact Fox, Gracie's parent company.
4960 Else called Fox and told them about the clip in the corner of the one
4961 room shot of the film. Matt Groening had already given permission,
4962 Else said. He was just confirming the permission with Fox.
4963 <indexterm><primary>Gracie Films
</primary></indexterm>
4966 Then, as Else told me, "two things happened. First we discovered
4967 … that Matt Groening doesn't own his own creation
—or at
4968 least that someone [at Fox] believes he doesn't own his own creation."
4969 And second, Fox "wanted ten thousand dollars as a licensing fee for us
4970 to use this four-point-five seconds of
… entirely unsolicited
4971 <citetitle>Simpsons
</citetitle> which was in the corner of the shot."
4974 Else was certain there was a mistake. He worked his way up to someone
4975 he thought was a vice president for licensing, Rebecca Herrera. He
4976 explained to her, "There must be some mistake here.
… We're
4977 asking for your educational rate on this." That was the educational
4978 rate, Herrera told Else. A day or so later, Else called again to
4979 confirm what he had been told.
4982 "I wanted to make sure I had my facts straight," he told me. "Yes, you
4983 have your facts straight," she said. It would cost $
10,
000 to use the
4984 clip of
<citetitle>The Simpsons
</citetitle> in the corner of a shot in a documentary film
4987 <!-- PAGE BREAK 108 -->
4988 Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, "And
4989 if you quote me, I'll turn you over to our attorneys." As an assistant
4990 to Herrera told Else later on, "They don't give a shit. They just want
4994 Else didn't have the money to buy the right to replay what was playing
4995 on the television backstage at the San Francisco Opera. To reproduce
4996 this reality was beyond the documentary filmmaker's budget. At the
4997 very last minute before the film was to be released, Else digitally
4998 replaced the shot with a clip from another film that he had worked on,
4999 <citetitle>The Day After Trinity
</citetitle>, from ten years before.
5000 <indexterm><primary>San Francisco Opera
</primary></indexterm>
5001 <indexterm><primary>Day After Trinity, The
</primary></indexterm>
5004 There's no doubt that someone, whether Matt Groening or Fox, owns the
5005 copyright to
<citetitle>The Simpsons
</citetitle>. That copyright is their property. To use
5006 that copyrighted material thus sometimes requires the permission of
5007 the copyright owner. If the use that Else wanted to make of the
5008 <citetitle>Simpsons
</citetitle> copyright were one of the uses restricted by the law, then he
5009 would need to get the permission of the copyright owner before he
5010 could use the work in that way. And in a free market, it is the owner
5011 of the copyright who gets to set the price for any use that the law
5012 says the owner gets to control.
5015 For example, "public performance" is a use of
<citetitle>The Simpsons
</citetitle> that the
5016 copyright owner gets to control. If you take a selection of favorite
5017 episodes, rent a movie theater, and charge for tickets to come see "My
5018 Favorite
<citetitle>Simpsons
</citetitle>," then you need to get permission from the copyright
5019 owner. And the copyright owner (rightly, in my view) can charge
5020 whatever she wants
—$
10 or $
1,
000,
000. That's her right, as set
5024 But when lawyers hear this story about Jon Else and Fox, their first
5025 thought is "fair use."
<footnote><para>
5027 For an excellent argument that such use is "fair use," but that
5028 lawyers don't permit recognition that it is "fair use," see Richard
5029 A. Posner with William F. Patry, "Fair Use and Statutory Reform in the
5030 Wake of
<citetitle>Eldred
</citetitle>" (draft on file with author), University of Chicago
5031 Law School, 5 August 2003.
5033 Else's use of just 4.5 seconds of an indirect shot of a <citetitle>Simpsons</citetitle>
5034 episode is clearly a fair use of <citetitle>The Simpsons</citetitle>—and fair use does
5035 not require the permission of anyone.
5038 <!-- PAGE BREAK 109 -->
5039 So I asked Else why he didn't just rely upon "fair use.
" Here's his reply:
5043 The <citetitle>Simpsons</citetitle> fiasco was for me a great lesson in the gulf between what
5044 lawyers find irrelevant in some abstract sense, and what is crushingly
5045 relevant in practice to those of us actually trying to make and
5046 broadcast documentaries. I never had any doubt that it was "clearly
5047 fair use" in an absolute legal sense. But I couldn't rely on the
5048 concept in any concrete way. Here's why:
5050 <orderedlist numeration=
"arabic">
5053 Before our films can be broadcast, the network requires that we buy
5054 Errors and Omissions insurance. The carriers require a detailed
5055 "visual cue sheet" listing the source and licensing status of each
5056 shot in the film. They take a dim view of "fair use," and a claim of
5057 "fair use" can grind the application process to a halt.
5061 I probably never should have asked Matt Groening in the first
5062 place. But I knew (at least from folklore) that Fox had a history of
5063 tracking down and stopping unlicensed
<citetitle>Simpsons
</citetitle> usage, just as George
5064 Lucas had a very high profile litigating
<citetitle>Star Wars
</citetitle> usage. So I decided
5065 to play by the book, thinking that we would be granted free or cheap
5066 license to four seconds of
<citetitle>Simpsons
</citetitle>. As a documentary producer working
5067 to exhaustion on a shoestring, the last thing I wanted was to risk
5068 legal trouble, even nuisance legal trouble, and even to defend a
5070 <indexterm><primary>Lucas, George
</primary></indexterm>
5074 I did, in fact, speak with one of your colleagues at Stanford Law
5075 School
… who confirmed that it was fair use. He also confirmed
5076 that Fox would "depose and litigate you to within an inch of your
5077 life," regardless of the merits of my claim. He made clear that it
5078 would boil down to who had the bigger legal department and the deeper
5079 pockets, me or them.
5080 <!-- PAGE BREAK 110 -->
5084 The question of fair use usually comes up at the end of the
5085 project, when we are up against a release deadline and out of
5091 In theory, fair use means you need no permission. The theory therefore
5092 supports free culture and insulates against a permission culture. But
5093 in practice, fair use functions very differently. The fuzzy lines of
5094 the law, tied to the extraordinary liability if lines are crossed,
5095 means that the effective fair use for many types of creators is
5096 slight. The law has the right aim; practice has defeated the aim.
5099 This practice shows just how far the law has come from its
5100 eighteenth-century roots. The law was born as a shield to protect
5101 publishers' profits against the unfair competition of a pirate. It has
5102 matured into a sword that interferes with any use, transformative or
5105 <!-- PAGE BREAK 111 -->
5107 <chapter label=
"8" id=
"transformers">
5108 <title>CHAPTER EIGHT: Transformers
</title>
5109 <indexterm><primary>Allen, Paul
</primary></indexterm>
5110 <indexterm><primary>Alben, Alex
</primary></indexterm>
5112 In
1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave
5113 was an innovative company founded by Microsoft cofounder Paul Allen to
5114 develop digital entertainment. Long before the Internet became
5115 popular, Starwave began investing in new technology for delivering
5116 entertainment in anticipation of the power of networks.
5118 <indexterm><primary>Alben, Alex
</primary></indexterm>
5120 Alben had a special interest in new technology. He was intrigued by
5121 the emerging market for CD-ROM technology
—not to distribute
5122 film, but to do things with film that otherwise would be very
5123 difficult. In
1993, he launched an initiative to develop a product to
5124 build retrospectives on the work of particular actors. The first actor
5125 chosen was Clint Eastwood. The idea was to showcase all of the work of
5126 Eastwood, with clips from his films and interviews with figures
5127 important to his career.
5129 <indexterm><primary>Alben, Alex
</primary></indexterm>
5131 At that time, Eastwood had made more than fifty films, as an actor and
5132 as a director. Alben began with a series of interviews with Eastwood,
5133 asking him about his career. Because Starwave produced those
5134 interviews, it was free to include them on the CD.
5137 <!-- PAGE BREAK 112 -->
5138 That alone would not have made a very interesting product, so
5139 Starwave wanted to add content from the movies in Eastwood's career:
5140 posters, scripts, and other material relating to the films Eastwood
5141 made. Most of his career was spent at Warner Brothers, and so it was
5142 relatively easy to get permission for that content.
5144 <indexterm><primary>Alben, Alex
</primary></indexterm>
5146 Then Alben and his team decided to include actual film clips. "Our
5147 goal was that we were going to have a clip from every one of
5148 Eastwood's films," Alben told me. It was here that the problem
5149 arose. "No one had ever really done this before," Alben explained. "No
5150 one had ever tried to do this in the context of an artistic look at an
5153 <indexterm><primary>Alben, Alex
</primary></indexterm>
5155 Alben brought the idea to Michael Slade, the CEO of Starwave.
5156 Slade asked, "Well, what will it take?"
5158 <indexterm><primary>Alben, Alex
</primary></indexterm>
5160 Alben replied, "Well, we're going to have to clear rights from
5161 everyone who appears in these films, and the music and everything
5162 else that we want to use in these film clips." Slade said, "Great! Go
5166 Technically, the rights that Alben had to clear were mainly those of
5167 publicity
—rights an artist has to control the commercial
5168 exploitation of his image. But these rights, too, burden "Rip, Mix,
5169 Burn" creativity, as this chapter evinces.
5171 <primary>artists
</primary>
5172 <secondary>publicity rights on images of
</secondary>
5177 The problem was that neither Alben nor Slade had any idea what
5178 clearing those rights would mean. Every actor in each of the films
5179 could have a claim to royalties for the reuse of that film. But CD-
5180 ROMs had not been specified in the contracts for the actors, so there
5181 was no clear way to know just what Starwave was to do.
5184 I asked Alben how he dealt with the problem. With an obvious
5185 pride in his resourcefulness that obscured the obvious bizarreness of his
5186 tale, Alben recounted just what they did:
5190 So we very mechanically went about looking up the film clips. We made
5191 some artistic decisions about what film clips to include
—of
5192 course we were going to use the "Make my day" clip from
<citetitle>Dirty
5193 Harry
</citetitle>. But you then need to get the guy on the ground who's wiggling
5194 under the gun and you need to get his permission. And then you have
5195 to decide what you are going to pay him.
5198 <!-- PAGE BREAK 113 -->
5199 We decided that it would be fair if we offered them the dayplayer rate
5200 for the right to reuse that performance. We're talking about a clip of
5201 less than a minute, but to reuse that performance in the CD-ROM the
5202 rate at the time was about $
600. So we had to identify the
5203 people
—some of them were hard to identify because in Eastwood
5204 movies you can't tell who's the guy crashing through the
5205 glass
—is it the actor or is it the stuntman? And then we just,
5206 we put together a team, my assistant and some others, and we just
5207 started calling people.
5210 <indexterm><primary>Alben, Alex
</primary></indexterm>
5212 Some actors were glad to help
—Donald Sutherland, for example,
5213 followed up himself to be sure that the rights had been cleared.
5214 Others were dumbfounded at their good fortune. Alben would ask,
5215 "Hey, can I pay you $
600 or maybe if you were in two films, you
5216 know, $
1,
200?" And they would say, "Are you for real? Hey, I'd love
5217 to get $
1,
200." And some of course were a bit difficult (estranged
5218 ex-wives, in particular). But eventually, Alben and his team had
5219 cleared the rights to this retrospective CD-ROM on Clint Eastwood's
5223 It was one
<emphasis>year
</emphasis> later
—"and even then we
5224 weren't sure whether we were totally in the clear."
5226 <indexterm><primary>Alben, Alex
</primary></indexterm>
5228 Alben is proud of his work. The project was the first of its kind and
5229 the only time he knew of that a team had undertaken such a massive
5230 project for the purpose of releasing a retrospective.
5234 Everyone thought it would be too hard. Everyone just threw up their
5235 hands and said, "Oh, my gosh, a film, it's so many copyrights, there's
5236 the music, there's the screenplay, there's the director, there's the
5237 actors." But we just broke it down. We just put it into its
5238 constituent parts and said, "Okay, there's this many actors, this many
5239 directors,
… this many musicians," and we just went at it very
5240 systematically and cleared the rights.
5245 <!-- PAGE BREAK 114 -->
5246 And no doubt, the product itself was exceptionally good. Eastwood
5247 loved it, and it sold very well.
5249 <indexterm><primary>Alben, Alex
</primary></indexterm>
5250 <indexterm><primary>Drucker, Peter
</primary></indexterm>
5252 But I pressed Alben about how weird it seems that it would have to
5253 take a year's work simply to clear rights. No doubt Alben had done
5254 this efficiently, but as Peter Drucker has famously quipped, "There is
5255 nothing so useless as doing efficiently that which should not be done
5256 at all."
<footnote><para>
5258 U.S. Department of Commerce Office of Acquisition Management,
<citetitle>Seven
5259 Steps to Performance-Based Services Acquisition
</citetitle>, available at
5260 <ulink url=
"http://free-culture.cc/notes/">link #
22</ulink>.
5262 Did it make sense, I asked Alben, that this is the way a new work
5266 For, as he acknowledged, "very few
… have the time and resources,
5267 and the will to do this," and thus, very few such works would ever be
5268 made. Does it make sense, I asked him, from the standpoint of what
5269 anybody really thought they were ever giving rights for originally, that
5270 you would have to go clear rights for these kinds of clips?
5274 I don't think so. When an actor renders a performance in a movie,
5275 he or she gets paid very well.
… And then when
30 seconds of
5276 that performance is used in a new product that is a retrospective
5277 of somebody's career, I don't think that that person
… should be
5278 compensated for that.
5282 Or at least, is this
<emphasis>how
</emphasis> the artist should be
5283 compensated? Would it make sense, I asked, for there to be some kind
5284 of statutory license that someone could pay and be free to make
5285 derivative use of clips like this? Did it really make sense that a
5286 follow-on creator would have to track down every artist, actor,
5287 director, musician, and get explicit permission from each? Wouldn't a
5288 lot more be created if the legal part of the creative process could be
5289 made to be more clean?
5293 Absolutely. I think that if there were some fair-licensing
5294 mechanism
—where you weren't subject to hold-ups and you weren't
5295 subject to estranged former spouses
—you'd see a lot more of this
5296 work, because it wouldn't be so daunting to try to put together a
5297 <!-- PAGE BREAK 115 -->
5298 retrospective of someone's career and meaningfully illustrate it with
5299 lots of media from that person's career. You'd build in a cost as the
5300 producer of one of these things. You'd build in a cost of paying X
5301 dollars to the talent that performed. But it would be a known
5302 cost. That's the thing that trips everybody up and makes this kind of
5303 product hard to get off the ground. If you knew I have a hundred
5304 minutes of film in this product and it's going to cost me X, then you
5305 build your budget around it, and you can get investments and
5306 everything else that you need to produce it. But if you say, "Oh, I
5307 want a hundred minutes of something and I have no idea what it's going
5308 to cost me, and a certain number of people are going to hold me up for
5309 money," then it becomes difficult to put one of these things together.
5312 <indexterm><primary>Alben, Alex
</primary></indexterm>
5314 Alben worked for a big company. His company was backed by some of the
5315 richest investors in the world. He therefore had authority and access
5316 that the average Web designer would not have. So if it took him a
5317 year, how long would it take someone else? And how much creativity is
5318 never made just because the costs of clearing the rights are so high?
5319 These costs are the burdens of a kind of regulation. Put on a
5320 Republican hat for a moment, and get angry for a bit. The government
5321 defines the scope of these rights, and the scope defined determines
5322 how much it's going to cost to negotiate them. (Remember the idea that
5323 land runs to the heavens, and imagine the pilot purchasing flythrough
5324 rights as he negotiates to fly from Los Angeles to San Francisco.)
5325 These rights might well have once made sense; but as circumstances
5326 change, they make no sense at all. Or at least, a well-trained,
5327 regulationminimizing Republican should look at the rights and ask,
5328 "Does this still make sense?"
5331 I've seen the flash of recognition when people get this point, but only
5332 a few times. The first was at a conference of federal judges in California.
5333 The judges were gathered to discuss the emerging topic of cyber-law. I
5334 was asked to be on the panel. Harvey Saferstein, a well-respected lawyer
5336 <!-- PAGE BREAK 116 -->
5337 from an L.A. firm, introduced the panel with a video that he and a
5338 friend, Robert Fairbank, had produced.
5341 The video was a brilliant collage of film from every period in the
5342 twentieth century, all framed around the idea of a
<citetitle>60 Minutes
</citetitle> episode.
5343 The execution was perfect, down to the sixty-minute stopwatch. The
5344 judges loved every minute of it.
5346 <indexterm><primary>Nimmer, David
</primary></indexterm>
5348 When the lights came up, I looked over to my copanelist, David
5349 Nimmer, perhaps the leading copyright scholar and practitioner in the
5350 nation. He had an astonished look on his face, as he peered across the
5351 room of over
250 well-entertained judges. Taking an ominous tone, he
5352 began his talk with a question: "Do you know how many federal laws
5353 were just violated in this room?"
5355 <indexterm><primary>Boies, David
</primary></indexterm>
5357 For of course, the two brilliantly talented creators who made this
5358 film hadn't done what Alben did. They hadn't spent a year clearing the
5359 rights to these clips; technically, what they had done violated the
5360 law. Of course, it wasn't as if they or anyone were going to be
5361 prosecuted for this violation (the presence of
250 judges and a gaggle
5362 of federal marshals notwithstanding). But Nimmer was making an
5363 important point: A year before anyone would have heard of the word
5364 Napster, and two years before another member of our panel, David
5365 Boies, would defend Napster before the Ninth Circuit Court of Appeals,
5366 Nimmer was trying to get the judges to see that the law would not be
5367 friendly to the capacities that this technology would
5368 enable. Technology means you can now do amazing things easily; but you
5369 couldn't easily do them legally.
5372 We live in a "cut and paste" culture enabled by technology. Anyone
5373 building a presentation knows the extraordinary freedom that the cut
5374 and paste architecture of the Internet created
—in a second you can
5375 find just about any image you want; in another second, you can have it
5376 planted in your presentation.
5379 But presentations are just a tiny beginning. Using the Internet and
5380 <!-- PAGE BREAK 117 -->
5381 its archives, musicians are able to string together mixes of sound
5382 never before imagined; filmmakers are able to build movies out of
5383 clips on computers around the world. An extraordinary site in Sweden
5384 takes images of politicians and blends them with music to create
5385 biting political commentary. A site called Camp Chaos has produced
5386 some of the most biting criticism of the record industry that there is
5387 through the mixing of Flash! and music.
5388 <indexterm><primary>Camp Chaos
</primary></indexterm>
5391 All of these creations are technically illegal. Even if the creators
5392 wanted to be "legal," the cost of complying with the law is impossibly
5393 high. Therefore, for the law-abiding sorts, a wealth of creativity is
5394 never made. And for that part that is made, if it doesn't follow the
5395 clearance rules, it doesn't get released.
5398 To some, these stories suggest a solution: Let's alter the mix of
5399 rights so that people are free to build upon our culture. Free to add
5400 or mix as they see fit. We could even make this change without
5401 necessarily requiring that the "free" use be free as in "free beer."
5402 Instead, the system could simply make it easy for follow-on creators
5403 to compensate artists without requiring an army of lawyers to come
5404 along: a rule, for example, that says "the royalty owed the copyright
5405 owner of an unregistered work for the derivative reuse of his work
5406 will be a flat
1 percent of net revenues, to be held in escrow for the
5407 copyright owner." Under this rule, the copyright owner could benefit
5408 from some royalty, but he would not have the benefit of a full
5409 property right (meaning the right to name his own price) unless he
5413 Who could possibly object to this? And what reason would there be
5414 for objecting? We're talking about work that is not now being made;
5415 which if made, under this plan, would produce new income for artists.
5416 What reason would anyone have to oppose it?
5419 In February
2003, DreamWorks studios announced an agreement with Mike
5420 Myers, the comic genius of
<citetitle>Saturday Night Live
</citetitle> and
5421 <!-- PAGE BREAK 118 -->
5422 Austin Powers. According to the announcement, Myers and Dream-Works
5423 would work together to form a "unique filmmaking pact." Under the
5424 agreement, DreamWorks "will acquire the rights to existing motion
5425 picture hits and classics, write new storylines and
—with the use
5426 of stateof-the-art digital technology
—insert Myers and other
5427 actors into the film, thereby creating an entirely new piece of
5431 The announcement called this "film sampling." As Myers explained,
5432 "Film Sampling is an exciting way to put an original spin on existing
5433 films and allow audiences to see old movies in a new light. Rap
5434 artists have been doing this for years with music and now we are able
5435 to take that same concept and apply it to film." Steven Spielberg is
5436 quoted as saying, "If anyone can create a way to bring old films to
5437 new audiences, it is Mike."
5440 Spielberg is right. Film sampling by Myers will be brilliant. But if
5441 you don't think about it, you might miss the truly astonishing point
5442 about this announcement. As the vast majority of our film heritage
5443 remains under copyright, the real meaning of the DreamWorks
5444 announcement is just this: It is Mike Myers and only Mike Myers who is
5445 free to sample. Any general freedom to build upon the film archive of
5446 our culture, a freedom in other contexts presumed for us all, is now a
5447 privilege reserved for the funny and famous
—and presumably rich.
5450 This privilege becomes reserved for two sorts of reasons. The first
5451 continues the story of the last chapter: the vagueness of "fair use."
5452 Much of "sampling" should be considered "fair use." But few would
5453 rely upon so weak a doctrine to create. That leads to the second reason
5454 that the privilege is reserved for the few: The costs of negotiating the
5455 legal rights for the creative reuse of content are astronomically high.
5456 These costs mirror the costs with fair use: You either pay a lawyer to
5457 defend your fair use rights or pay a lawyer to track down permissions
5458 so you don't have to rely upon fair use rights. Either way, the creative
5459 process is a process of paying lawyers
—again a privilege, or perhaps a
5460 curse, reserved for the few.
5462 <!-- PAGE BREAK 119 -->
5464 <chapter label=
"9" id=
"collectors">
5465 <title>CHAPTER NINE: Collectors
</title>
5467 In April
1996, millions of "bots"
—computer codes designed to
5468 "spider," or automatically search the Internet and copy content
—began
5469 running across the Net. Page by page, these bots copied Internet-based
5470 information onto a small set of computers located in a basement in San
5471 Francisco's Presidio. Once the bots finished the whole of the Internet,
5472 they started again. Over and over again, once every two months, these
5473 bits of code took copies of the Internet and stored them.
5476 By October
2001, the bots had collected more than five years of
5477 copies. And at a small announcement in Berkeley, California, the
5478 archive that these copies created, the Internet Archive, was opened to
5479 the world. Using a technology called "the Way Back Machine," you could
5480 enter a Web page, and see all of its copies going back to
1996, as
5481 well as when those pages changed.
5484 This is the thing about the Internet that Orwell would have
5485 appreciated. In the dystopia described in
<citetitle>1984</citetitle>, old newspapers were
5486 constantly updated to assure that the current view of the world,
5487 approved of by the government, was not contradicted by previous news
5491 <!-- PAGE BREAK 120 -->
5492 Thousands of workers constantly reedited the past, meaning there was
5493 no way ever to know whether the story you were reading today was the
5494 story that was printed on the date published on the paper.
5497 It's the same with the Internet. If you go to a Web page today,
5498 there's no way for you to know whether the content you are reading is
5499 the same as the content you read before. The page may seem the same,
5500 but the content could easily be different. The Internet is Orwell's
5501 library
—constantly updated, without any reliable memory.
5504 Until the Way Back Machine, at least. With the Way Back Machine, and
5505 the Internet Archive underlying it, you can see what the Internet
5506 was. You have the power to see what you remember. More importantly,
5507 perhaps, you also have the power to find what you don't remember and
5508 what others might prefer you forget.
<footnote><para>
5510 The temptations remain, however. Brewster Kahle reports that the White
5511 House changes its own press releases without notice. A May
13,
2003,
5512 press release stated, "Combat Operations in Iraq Have Ended." That was
5513 later changed, without notice, to "Major Combat Operations in Iraq
5514 Have Ended." E-mail from Brewster Kahle,
1 December
2003.
5518 We take it for granted that we can go back to see what we remember
5519 reading. Think about newspapers. If you wanted to study the reaction
5520 of your hometown newspaper to the race riots in Watts in
1965, or to
5521 Bull Connor's water cannon in
1963, you could go to your public
5522 library and look at the newspapers. Those papers probably exist on
5523 microfiche. If you're lucky, they exist in paper, too. Either way, you
5524 are free, using a library, to go back and remember
—not just what
5525 it is convenient to remember, but remember something close to the
5529 It is said that those who fail to remember history are doomed to
5530 repeat it. That's not quite correct. We
<emphasis>all
</emphasis>
5531 forget history. The key is whether we have a way to go back to
5532 rediscover what we forget. More directly, the key is whether an
5533 objective past can keep us honest. Libraries help do that, by
5534 collecting content and keeping it, for schoolchildren, for
5535 researchers, for grandma. A free society presumes this knowedge.
5538 The Internet was an exception to this presumption. Until the Internet
5539 Archive, there was no way to go back. The Internet was the
5540 quintessentially transitory medium. And yet, as it becomes more
5541 important in forming and reforming society, it becomes more and more
5542 <!-- PAGE BREAK 121 -->
5543 important to maintain in some historical form. It's just bizarre to
5544 think that we have scads of archives of newspapers from tiny towns
5545 around the world, yet there is but one copy of the Internet
—the
5546 one kept by the Internet Archive.
5549 Brewster Kahle is the founder of the Internet Archive. He was a very
5550 successful Internet entrepreneur after he was a successful computer
5551 researcher. In the
1990s, Kahle decided he had had enough business
5552 success. It was time to become a different kind of success. So he
5553 launched a series of projects designed to archive human knowledge. The
5554 Internet Archive was just the first of the projects of this Andrew
5555 Carnegie of the Internet. By December of
2002, the archive had over
10
5556 billion pages, and it was growing at about a billion pages a month.
5559 The Way Back Machine is the largest archive of human knowledge in
5560 human history. At the end of
2002, it held "two hundred and thirty
5561 terabytes of material"
—and was "ten times larger than the
5562 Library of Congress." And this was just the first of the archives that
5563 Kahle set out to build. In addition to the Internet Archive, Kahle has
5564 been constructing the Television Archive. Television, it turns out, is
5565 even more ephemeral than the Internet. While much of twentieth-century
5566 culture was constructed through television, only a tiny proportion of
5567 that culture is available for anyone to see today. Three hours of news
5568 are recorded each evening by Vanderbilt University
—thanks to a
5569 specific exemption in the copyright law. That content is indexed, and
5570 is available to scholars for a very low fee. "But other than that,
5571 [television] is almost unavailable," Kahle told me. "If you were
5572 Barbara Walters you could get access to [the archives], but if you are
5573 just a graduate student?" As Kahle put it,
5576 <indexterm><primary>Quayle, Dan
</primary></indexterm>
5578 Do you remember when Dan Quayle was interacting with Murphy Brown?
5579 Remember that back and forth surreal experience of a politician
5580 interacting with a fictional television character? If you were a
5581 graduate student wanting to study that, and you wanted to get those
5582 original back and forth exchanges between the two, the
5584 <!-- PAGE BREAK 122 -->
5585 <citetitle>60 Minutes
</citetitle> episode that came out after it
… it would be almost
5586 impossible.
… Those materials are almost unfindable.
…
5590 Why is that? Why is it that the part of our culture that is recorded
5591 in newspapers remains perpetually accessible, while the part that is
5592 recorded on videotape is not? How is it that we've created a world
5593 where researchers trying to understand the effect of media on
5594 nineteenthcentury America will have an easier time than researchers
5595 trying to understand the effect of media on twentieth-century America?
5598 In part, this is because of the law. Early in American copyright law,
5599 copyright owners were required to deposit copies of their work in
5600 libraries. These copies were intended both to facilitate the spread
5601 of knowledge and to assure that a copy of the work would be around
5602 once the copyright expired, so that others might access and copy the
5606 These rules applied to film as well. But in
1915, the Library
5607 of Congress made an exception for film. Film could be copyrighted so
5608 long as such deposits were made. But the filmmaker was then allowed to
5609 borrow back the deposits
—for an unlimited time at no cost. In
5610 1915 alone, there were more than
5,
475 films deposited and "borrowed
5611 back." Thus, when the copyrights to films expire, there is no copy
5612 held by any library. The copy exists
—if it exists at
5613 all
—in the library archive of the film company.
<footnote><para>
5615 Doug Herrick, "Toward a National Film Collection: Motion Pictures at
5616 the Library of Congress,"
<citetitle>Film Library Quarterly
</citetitle> 13 nos.
2–3
5617 (
1980):
5; Anthony Slide,
<citetitle>Nitrate Won't Wait: A History of Film
5618 Preservation in the United States
</citetitle> ( Jefferson, N.C.: McFarland
&
5623 The same is generally true about television. Television broadcasts
5624 were originally not copyrighted
—there was no way to capture the
5625 broadcasts, so there was no fear of "theft." But as technology enabled
5626 capturing, broadcasters relied increasingly upon the law. The law
5627 required they make a copy of each broadcast for the work to be
5628 "copyrighted." But those copies were simply kept by the
5629 broadcasters. No library had any right to them; the government didn't
5630 demand them. The content of this part of American culture is
5631 practically invisible to anyone who would look.
5634 Kahle was eager to correct this. Before September
11,
2001, he and
5635 <!-- PAGE BREAK 123 -->
5636 his allies had started capturing television. They selected twenty
5637 stations from around the world and hit the Record button. After
5638 September
11, Kahle, working with dozens of others, selected twenty
5639 stations from around the world and, beginning October
11,
2001, made
5640 their coverage during the week of September
11 available free on-line.
5641 Anyone could see how news reports from around the world covered the
5645 Kahle had the same idea with film. Working with Rick Prelinger, whose
5646 archive of film includes close to
45,
000 "ephemeral films" (meaning
5647 films other than Hollywood movies, films that were never copyrighted),
5648 Kahle established the Movie Archive. Prelinger let Kahle digitize
5649 1,
300 films in this archive and post those films on the Internet to be
5650 downloaded for free. Prelinger's is a for-profit company. It sells
5651 copies of these films as stock footage. What he has discovered is that
5652 after he made a significant chunk available for free, his stock
5653 footage sales went up dramatically. People could easily find the
5654 material they wanted to use. Some downloaded that material and made
5655 films on their own. Others purchased copies to enable other films to
5656 be made. Either way, the archive enabled access to this important
5657 part of our culture. Want to see a copy of the "Duck and Cover" film
5658 that instructed children how to save themselves in the middle of
5659 nuclear attack? Go to archive.org, and you can download the film in a
5660 few minutes
—for free.
5661 <indexterm><primary>Movie Archive
</primary></indexterm>
5664 Here again, Kahle is providing access to a part of our culture that we
5665 otherwise could not get easily, if at all. It is yet another part of
5666 what defines the twentieth century that we have lost to history. The
5667 law doesn't require these copies to be kept by anyone, or to be
5668 deposited in an archive by anyone. Therefore, there is no simple way
5672 The key here is access, not price. Kahle wants to enable free access
5673 to this content, but he also wants to enable others to sell access to
5674 it. His aim is to ensure competition in access to this important part
5675 of our culture. Not during the commercial life of a bit of creative
5676 property, but during a second life that all creative property
5677 has
—a noncommercial life.
5680 For here is an idea that we should more clearly recognize. Every bit
5681 of creative property goes through different "lives." In its first
5684 <!-- PAGE BREAK 124 -->
5685 creator is lucky, the content is sold. In such cases the commercial
5686 market is successful for the creator. The vast majority of creative
5687 property doesn't enjoy such success, but some clearly does. For that
5688 content, commercial life is extremely important. Without this
5689 commercial market, there would be, many argue, much less creativity.
5692 After the commercial life of creative property has ended, our
5693 tradition has always supported a second life as well. A newspaper
5694 delivers the news every day to the doorsteps of America. The very next
5695 day, it is used to wrap fish or to fill boxes with fragile gifts or to
5696 build an archive of knowledge about our history. In this second life,
5697 the content can continue to inform even if that information is no
5701 The same has always been true about books. A book goes out of print
5702 very quickly (the average today is after about a year
<footnote><para>
5704 Dave Barns, "Fledgling Career in Antique Books: Woodstock Landlord,
5705 Bar Owner Starts a New Chapter by Adopting Business,"
<citetitle>Chicago Tribune
</citetitle>,
5706 5 September
1997, at Metro Lake
1L. Of books published between
1927
5707 and
1946, only
2.2 percent were in print in
2002. R. Anthony Reese,
5708 "The First Sale Doctrine in the Era of Digital Networks,"
<citetitle>Boston
5709 College Law Review
</citetitle> 44 (
2003):
593 n.
51.
5710 </para></footnote>). After
5711 it is out of print, it can be sold in used book stores without the
5712 copyright owner getting anything and stored in libraries, where many
5713 get to read the book, also for free. Used book stores and libraries
5714 are thus the second life of a book. That second life is extremely
5715 important to the spread and stability of culture.
5718 Yet increasingly, any assumption about a stable second life for
5719 creative property does not hold true with the most important
5720 components of popular culture in the twentieth and twenty-first
5721 centuries. For these
—television, movies, music, radio, the
5722 Internet
—there is no guarantee of a second life. For these sorts
5723 of culture, it is as if we've replaced libraries with Barnes
&
5724 Noble superstores. With this culture, what's accessible is nothing but
5725 what a certain limited market demands. Beyond that, culture
5729 For most of the twentieth century, it was economics that made this
5730 so. It would have been insanely expensive to collect and make
5731 accessible all television and film and music: The cost of analog
5732 copies is extraordinarily high. So even though the law in principle
5733 would have restricted the ability of a Brewster Kahle to copy culture
5735 <!-- PAGE BREAK 125 -->
5736 real restriction was economics. The market made it impossibly
5737 difficult to do anything about this ephemeral culture; the law had
5738 little practical effect.
5741 Perhaps the single most important feature of the digital revolution is
5742 that for the first time since the Library of Alexandria, it is
5743 feasible to imagine constructing archives that hold all culture
5744 produced or distributed publicly. Technology makes it possible to
5745 imagine an archive of all books published, and increasingly makes it
5746 possible to imagine an archive of all moving images and sound.
5749 The scale of this potential archive is something we've never imagined
5750 before. The Brewster Kahles of our history have dreamed about it; but
5751 we are for the first time at a point where that dream is possible. As
5756 It looks like there's about two to three million recordings of music.
5757 Ever. There are about a hundred thousand theatrical releases of
5758 movies,
… and about one to two million movies [distributed] during
5759 the twentieth century. There are about twenty-six million different
5760 titles of books. All of these would fit on computers that would fit in
5761 this room and be able to be afforded by a small company. So we're at
5762 a turning point in our history. Universal access is the goal. And the
5763 opportunity of leading a different life, based on this, is
5764 … thrilling. It could be one of the things humankind would be most
5765 proud of. Up there with the Library of Alexandria, putting a man on
5766 the moon, and the invention of the printing press.
5770 Kahle is not the only librarian. The Internet Archive is not the only
5771 archive. But Kahle and the Internet Archive suggest what the future of
5772 libraries or archives could be.
<emphasis>When
</emphasis> the
5773 commercial life of creative property ends, I don't know. But it
5774 does. And whenever it does, Kahle and his archive hint at a world
5775 where this knowledge, and culture, remains perpetually available. Some
5776 will draw upon it to understand it;
5777 <!-- PAGE BREAK 126 -->
5778 some to criticize it. Some will use it, as Walt Disney did, to
5779 re-create the past for the future. These technologies promise
5780 something that had become unimaginable for much of our past
—a
5781 future
<emphasis>for
</emphasis> our past. The technology of digital
5782 arts could make the dream of the Library of Alexandria real again.
5785 Technologists have thus removed the economic costs of building such an
5786 archive. But lawyers' costs remain. For as much as we might like to
5787 call these "archives," as warm as the idea of a "library" might seem,
5788 the "content" that is collected in these digital spaces is also
5789 someone's "property." And the law of property restricts the freedoms
5790 that Kahle and others would exercise.
5792 <!-- PAGE BREAK 127 -->
5794 <chapter label=
"10" id=
"property-i">
5795 <title>CHAPTER TEN: "Property"
</title>
5797 Jack Valenti has been the president of the Motion Picture Association
5798 of America since
1966. He first came to Washington, D.C., with Lyndon
5799 Johnson's administration
—literally. The famous picture of
5800 Johnson's swearing-in on Air Force One after the assassination of
5801 President Kennedy has Valenti in the background. In his almost forty
5802 years of running the MPAA, Valenti has established himself as perhaps
5803 the most prominent and effective lobbyist in Washington.
5804 <indexterm><primary>Johnson, Lyndon
</primary></indexterm>
5805 <indexterm><primary>Kennedy, John F.
</primary></indexterm>
5808 The MPAA is the American branch of the international Motion Picture
5809 Association. It was formed in
1922 as a trade association whose goal
5810 was to defend American movies against increasing domestic criticism.
5811 The organization now represents not only filmmakers but producers and
5812 distributors of entertainment for television, video, and cable. Its
5813 board is made up of the chairmen and presidents of the seven major
5814 producers and distributors of motion picture and television programs
5815 in the United States: Walt Disney, Sony Pictures Entertainment, MGM,
5816 Paramount Pictures, Twentieth Century Fox, Universal Studios, and
5818 <indexterm><primary>Disney, Inc.
</primary></indexterm>
5819 <indexterm><primary>Sony Pictures Entertainment
</primary></indexterm>
5820 <indexterm><primary>MGM
</primary></indexterm>
5821 <indexterm><primary>Paramount Pictures
</primary></indexterm>
5822 <indexterm><primary>Twentieth Century Fox
</primary></indexterm>
5823 <indexterm><primary>Universal Pictures
</primary></indexterm>
5824 <indexterm><primary>Warner Brothers
</primary></indexterm>
5827 <!-- PAGE BREAK 128 -->
5828 Valenti is only the third president of the MPAA. No president before
5829 him has had as much influence over that organization, or over
5830 Washington. As a Texan, Valenti has mastered the single most important
5831 political skill of a Southerner
—the ability to appear simple and
5832 slow while hiding a lightning-fast intellect. To this day, Valenti
5833 plays the simple, humble man. But this Harvard MBA, and author of four
5834 books, who finished high school at the age of fifteen and flew more
5835 than fifty combat missions in World War II, is no Mr. Smith. When
5836 Valenti went to Washington, he mastered the city in a quintessentially
5840 In defending artistic liberty and the freedom of speech that our
5841 culture depends upon, the MPAA has done important good. In crafting
5842 the MPAA rating system, it has probably avoided a great deal of
5843 speech-regulating harm. But there is an aspect to the organization's
5844 mission that is both the most radical and the most important. This is
5845 the organization's effort, epitomized in Valenti's every act, to
5846 redefine the meaning of "creative property."
5849 In
1982, Valenti's testimony to Congress captured the strategy
5854 No matter the lengthy arguments made, no matter the charges and the
5855 counter-charges, no matter the tumult and the shouting, reasonable men
5856 and women will keep returning to the fundamental issue, the central
5857 theme which animates this entire debate:
<emphasis>Creative property
5858 owners must be accorded the same rights and protection resident in all
5859 other property owners in the nation
</emphasis>. That is the issue.
5860 That is the question. And that is the rostrum on which this entire
5861 hearing and the debates to follow must rest.
<footnote><para>
5863 Home Recording of Copyrighted Works: Hearings on H.R.
4783, H.R.
5864 4794, H.R.
4808, H.R.
5250, H.R.
5488, and H.R.
5705 Before the
5865 Subcommittee on Courts, Civil Liberties, and the Administration of
5866 Justice of the Committee on the Judiciary of the House of
5867 Representatives,
97th Cong.,
2nd sess. (
1982):
65 (testimony of Jack
5873 The strategy of this rhetoric, like the strategy of most of Valenti's
5874 rhetoric, is brilliant and simple and brilliant because simple. The
5875 "central theme" to which "reasonable men and women" will return is
5877 <!-- PAGE BREAK 129 -->
5878 "Creative property owners must be accorded the same rights and
5879 protections resident in all other property owners in the nation."
5880 There are no second-class citizens, Valenti might have
5881 continued. There should be no second-class property owners.
5884 This claim has an obvious and powerful intuitive pull. It is stated
5885 with such clarity as to make the idea as obvious as the notion that we
5886 use elections to pick presidents. But in fact, there is no more
5887 extreme a claim made by
<emphasis>anyone
</emphasis> who is serious in
5888 this debate than this claim of Valenti's. Jack Valenti, however sweet
5889 and however brilliant, is perhaps the nation's foremost extremist when
5890 it comes to the nature and scope of "creative property." His views
5891 have
<emphasis>no
</emphasis> reasonable connection to our actual legal
5892 tradition, even if the subtle pull of his Texan charm has slowly
5893 redefined that tradition, at least in Washington.
5896 While "creative property" is certainly "property" in a nerdy and
5897 precise sense that lawyers are trained to understand,
<footnote><para>
5899 Lawyers speak of "property" not as an absolute thing, but as a bundle
5900 of rights that are sometimes associated with a particular
5901 object. Thus, my "property right" to my car gives me the right to
5902 exclusive use, but not the right to drive at
150 miles an hour. For
5903 the best effort to connect the ordinary meaning of "property" to
5904 "lawyer talk," see Bruce Ackerman,
<citetitle>Private Property and the
5905 Constitution
</citetitle> (New Haven: Yale University Press,
1977),
26–27.
5906 </para></footnote> it has never been the case, nor should it be, that
5907 "creative property owners" have been "accorded the same rights and
5908 protection resident in all other property owners." Indeed, if creative
5909 property owners were given the same rights as all other property
5910 owners, that would effect a radical, and radically undesirable, change
5914 Valenti knows this. But he speaks for an industry that cares squat for
5915 our tradition and the values it represents. He speaks for an industry
5916 that is instead fighting to restore the tradition that the British
5917 overturned in
1710. In the world that Valenti's changes would create,
5918 a powerful few would exercise powerful control over how our creative
5919 culture would develop.
5922 I have two purposes in this chapter. The first is to convince you
5923 that, historically, Valenti's claim is absolutely wrong. The second is
5924 to convince you that it would be terribly wrong for us to reject our
5925 history. We have always treated rights in creative property
5926 differently from the rights resident in all other property
5927 owners. They have never been the same. And they should never be the
5928 same, because, however counterintuitive this may seem, to make them
5929 the same would be to
5931 <!-- PAGE BREAK 130 -->
5932 fundamentally weaken the opportunity for new creators to create.
5933 Creativity depends upon the owners of creativity having less than
5937 Organizations such as the MPAA, whose board includes the most powerful
5938 of the old guard, have little interest, their rhetoric
5939 notwithstanding, in assuring that the new can displace them. No
5940 organization does. No person does. (Ask me about tenure, for example.)
5941 But what's good for the MPAA is not necessarily good for America. A
5942 society that defends the ideals of free culture must preserve
5943 precisely the opportunity for new creativity to threaten the old. To
5944 get just a hint that there is something fundamentally wrong in
5945 Valenti's argument, we need look no further than the United States
5946 Constitution itself.
5949 The framers of our Constitution loved "property." Indeed, so strongly
5950 did they love property that they built into the Constitution an
5951 important requirement. If the government takes your property
—if
5952 it condemns your house, or acquires a slice of land from your
5953 farm
—it is required, under the Fifth Amendment's "Takings
5954 Clause," to pay you "just compensation" for that taking. The
5955 Constitution thus guarantees that property is, in a certain sense,
5956 sacred. It cannot
<emphasis>ever
</emphasis> be taken from the property
5957 owner unless the government pays for the privilege.
5960 Yet the very same Constitution speaks very differently about what
5961 Valenti calls "creative property." In the clause granting Congress the
5962 power to create "creative property," the Constitution
5963 <emphasis>requires
</emphasis> that after a "limited time," Congress
5964 take back the rights that it has granted and set the "creative
5965 property" free to the public domain. Yet when Congress does this, when
5966 the expiration of a copyright term "takes" your copyright and turns it
5967 over to the public domain, Congress does not have any obligation to
5968 pay "just compensation" for this "taking." Instead, the same
5969 Constitution that requires compensation for your land
5970 <!-- PAGE BREAK 131 -->
5971 requires that you lose your "creative property" right without any
5972 compensation at all.
5975 The Constitution thus on its face states that these two forms of
5976 property are not to be accorded the same rights. They are plainly to
5977 be treated differently. Valenti is therefore not just asking for a
5978 change in our tradition when he argues that creative-property owners
5979 should be accorded the same rights as every other property-right
5980 owner. He is effectively arguing for a change in our Constitution
5984 Arguing for a change in our Constitution is not necessarily wrong.
5985 There was much in our original Constitution that was plainly wrong.
5986 The Constitution of
1789 entrenched slavery; it left senators to be
5987 appointed rather than elected; it made it possible for the electoral
5988 college to produce a tie between the president and his own vice
5989 president (as it did in
1800). The framers were no doubt
5990 extraordinary, but I would be the first to admit that they made big
5991 mistakes. We have since rejected some of those mistakes; no doubt
5992 there could be others that we should reject as well. So my argument is
5993 not simply that because Jefferson did it, we should, too.
5996 Instead, my argument is that because Jefferson did it, we should at
5997 least try to understand
<emphasis>why
</emphasis>. Why did the framers,
5998 fanatical property types that they were, reject the claim that
5999 creative property be given the same rights as all other property? Why
6000 did they require that for creative property there must be a public
6004 To answer this question, we need to get some perspective on the
6005 history of these "creative property" rights, and the control that they
6006 enabled. Once we see clearly how differently these rights have been
6007 defined, we will be in a better position to ask the question that
6008 should be at the core of this war: Not
<emphasis>whether
</emphasis>
6009 creative property should be protected, but how. Not
6010 <emphasis>whether
</emphasis> we will enforce the rights the law gives
6011 to creative-property owners, but what the particular mix of rights
6012 ought to be. Not
<emphasis>whether
</emphasis> artists should be paid,
6013 but whether institutions designed to assure that artists get paid need
6014 also control how culture develops.
6018 <!-- PAGE BREAK 132 -->
6019 To answer these questions, we need a more general way to talk about
6020 how property is protected. More precisely, we need a more general way
6021 than the narrow language of the law allows. In
<citetitle>Code and Other Laws of
6022 Cyberspace
</citetitle>, I used a simple model to capture this more general
6023 perspective. For any particular right or regulation, this model asks
6024 how four different modalities of regulation interact to support or
6025 weaken the right or regulation. I represented it with this diagram:
6027 <figure id=
"fig-1331">
6028 <title>How four different modalities of regulation interact to support or weaken the right or regulation.
</title>
6029 <graphic fileref=
"images/1331.png"></graphic>
6032 At the center of this picture is a regulated dot: the individual or
6033 group that is the target of regulation, or the holder of a right. (In
6034 each case throughout, we can describe this either as regulation or as
6035 a right. For simplicity's sake, I will speak only of regulations.)
6036 The ovals represent four ways in which the individual or group might
6037 be regulated
— either constrained or, alternatively, enabled. Law
6038 is the most obvious constraint (to lawyers, at least). It constrains
6039 by threatening punishments after the fact if the rules set in advance
6040 are violated. So if, for example, you willfully infringe Madonna's
6041 copyright by copying a song from her latest CD and posting it on the
6042 Web, you can be punished
6043 <!-- PAGE BREAK 133 -->
6044 with a $
150,
000 fine. The fine is an ex post punishment for violating
6045 an ex ante rule. It is imposed by the state.
6046 <indexterm><primary>Madonna
</primary></indexterm>
6049 Norms are a different kind of constraint. They, too, punish an
6050 individual for violating a rule. But the punishment of a norm is
6051 imposed by a community, not (or not only) by the state. There may be
6052 no law against spitting, but that doesn't mean you won't be punished
6053 if you spit on the ground while standing in line at a movie. The
6054 punishment might not be harsh, though depending upon the community, it
6055 could easily be more harsh than many of the punishments imposed by the
6056 state. The mark of the difference is not the severity of the rule, but
6057 the source of the enforcement.
6060 The market is a third type of constraint. Its constraint is effected
6061 through conditions: You can do X if you pay Y; you'll be paid M if you
6062 do N. These constraints are obviously not independent of law or
6063 norms
—it is property law that defines what must be bought if it
6064 is to be taken legally; it is norms that say what is appropriately
6065 sold. But given a set of norms, and a background of property and
6066 contract law, the market imposes a simultaneous constraint upon how an
6067 individual or group might behave.
6070 Finally, and for the moment, perhaps, most mysteriously,
6071 "architecture"
—the physical world as one finds it
—is a
6072 constraint on behavior. A fallen bridge might constrain your ability
6073 to get across a river. Railroad tracks might constrain the ability of
6074 a community to integrate its social life. As with the market,
6075 architecture does not effect its constraint through ex post
6076 punishments. Instead, also as with the market, architecture effects
6077 its constraint through simultaneous conditions. These conditions are
6078 imposed not by courts enforcing contracts, or by police punishing
6079 theft, but by nature, by "architecture." If a
500-pound boulder
6080 blocks your way, it is the law of gravity that enforces this
6081 constraint. If a $
500 airplane ticket stands between you and a flight
6082 to New York, it is the market that enforces this constraint.
6086 <!-- PAGE BREAK 134 -->
6087 So the first point about these four modalities of regulation is
6088 obvious: They interact. Restrictions imposed by one might be
6089 reinforced by another. Or restrictions imposed by one might be
6090 undermined by another.
6093 The second point follows directly: If we want to understand the
6094 effective freedom that anyone has at a given moment to do any
6095 particular thing, we have to consider how these four modalities
6096 interact. Whether or not there are other constraints (there may well
6097 be; my claim is not about comprehensiveness), these four are among the
6098 most significant, and any regulator (whether controlling or freeing)
6099 must consider how these four in particular interact.
6101 <indexterm id=
"idxdrivespeed" class='startofrange'
>
6102 <primary>driving speed, constraints on
</primary>
6105 So, for example, consider the "freedom" to drive a car at a high
6106 speed. That freedom is in part restricted by laws: speed limits that
6107 say how fast you can drive in particular places at particular
6108 times. It is in part restricted by architecture: speed bumps, for
6109 example, slow most rational drivers; governors in buses, as another
6110 example, set the maximum rate at which the driver can drive. The
6111 freedom is in part restricted by the market: Fuel efficiency drops as
6112 speed increases, thus the price of gasoline indirectly constrains
6113 speed. And finally, the norms of a community may or may not constrain
6114 the freedom to speed. Drive at
50 mph by a school in your own
6115 neighborhood and you're likely to be punished by the neighbors. The
6116 same norm wouldn't be as effective in a different town, or at night.
6119 The final point about this simple model should also be fairly clear:
6120 While these four modalities are analytically independent, law has a
6121 special role in affecting the three.
<footnote><para>
6123 By describing the way law affects the other three modalities, I don't
6124 mean to suggest that the other three don't affect law. Obviously, they
6125 do. Law's only distinction is that it alone speaks as if it has a
6126 right self-consciously to change the other three. The right of the
6127 other three is more timidly expressed. See Lawrence Lessig,
<citetitle>Code: And
6128 Other Laws of Cyberspace
</citetitle> (New York: Basic Books,
1999):
90–95;
6129 Lawrence Lessig, "The New Chicago School,"
<citetitle>Journal of Legal Studies
</citetitle>,
6132 The law, in other words, sometimes operates to increase or decrease
6133 the constraint of a particular modality. Thus, the law might be used
6134 to increase taxes on gasoline, so as to increase the incentives to
6135 drive more slowly. The law might be used to mandate more speed bumps,
6136 so as to increase the difficulty of driving rapidly. The law might be
6137 used to fund ads that stigmatize reckless driving. Or the law might be
6138 used to require that other laws be more
6139 <!-- PAGE BREAK 135 -->
6140 strict
—a federal requirement that states decrease the speed
6141 limit, for example
—so as to decrease the attractiveness of fast
6144 <indexterm startref=
"idxdrivespeed" class='endofrange'
/>
6146 <figure id=
"fig-1361">
6147 <title>Law has a special role in affecting the three.
</title>
6148 <graphic fileref=
"images/1361.png"></graphic>
6151 These constraints can thus change, and they can be changed. To
6152 understand the effective protection of liberty or protection of
6153 property at any particular moment, we must track these changes over
6154 time. A restriction imposed by one modality might be erased by
6155 another. A freedom enabled by one modality might be displaced by
6159 Some people object to this way of talking about "liberty." They object
6160 because their focus when considering the constraints that exist at any
6161 particular moment are constraints imposed exclusively by the
6162 government. For instance, if a storm destroys a bridge, these people
6163 think it is meaningless to say that one's liberty has been
6164 restrained. A bridge has washed out, and it's harder to get from one
6165 place to another. To talk about this as a loss of freedom, they say,
6166 is to confuse the stuff of politics with the vagaries of ordinary
6167 life. I don't mean to deny the value in this narrower view, which
6168 depends upon the context of the inquiry. I do, however, mean to argue
6169 against any insistence that this narrower view is the only proper view
6170 of liberty. As I argued in
<citetitle>Code
</citetitle>, we come from a long tradition of
6171 political thought with a broader focus than the narrow question of
6172 what the government did when. John Stuart Mill defended freedom of
6173 speech, for example, from the tyranny of narrow minds, not from the
6174 fear of government prosecution; John Stuart Mill,
<citetitle>On Liberty
</citetitle> (Indiana:
6175 Hackett Publishing Co.,
1978),
19. John R. Commons famously defended
6176 the economic freedom of labor from constraints imposed by the market;
6177 John R. Commons, "The Right to Work," in Malcom Rutherford and Warren
6178 J. Samuels, eds.,
<citetitle>John R. Commons: Selected Essays
</citetitle> (London:
6179 Routledge:
1997),
62. The Americans with Disabilities Act increases
6180 the liberty of people with physical disabilities by changing the
6181 architecture of certain public places, thereby making access to those
6182 places easier;
42 <citetitle>United States Code
</citetitle>, section
12101 (
2000). Each of
6183 these interventions to change existing conditions changes the liberty
6184 of a particular group. The effect of those interventions should be
6185 accounted for in order to understand the effective liberty that each
6186 of these groups might face.
6187 <indexterm><primary>Commons, John R.
</primary></indexterm>
6190 <section id=
"hollywood">
6191 <title>Why Hollywood Is Right
</title>
6193 The most obvious point that this model reveals is just why, or just
6194 how, Hollywood is right. The copyright warriors have rallied Congress
6195 and the courts to defend copyright. This model helps us see why that
6196 rallying makes sense.
6199 Let's say this is the picture of copyright's regulation before the
6202 <figure id=
"fig-1371">
6203 <title>Copyright's regulation before the Internet.
</title>
6204 <graphic fileref=
"images/1331.png"></graphic>
6207 <!-- PAGE BREAK 136 -->
6208 There is balance between law, norms, market, and architecture. The law
6209 limits the ability to copy and share content, by imposing penalties on
6210 those who copy and share content. Those penalties are reinforced by
6211 technologies that make it hard to copy and share content
6212 (architecture) and expensive to copy and share content
6213 (market). Finally, those penalties are mitigated by norms we all
6214 recognize
—kids, for example, taping other kids' records. These
6215 uses of copyrighted material may well be infringement, but the norms
6216 of our society (before the Internet, at least) had no problem with
6217 this form of infringement.
6220 Enter the Internet, or, more precisely, technologies such as MP3s and
6221 p2p sharing. Now the constraint of architecture changes dramatically,
6222 as does the constraint of the market. And as both the market and
6223 architecture relax the regulation of copyright, norms pile on. The
6224 happy balance (for the warriors, at least) of life before the Internet
6225 becomes an effective state of anarchy after the Internet.
6228 Thus the sense of, and justification for, the warriors' response.
6229 Technology has changed, the warriors say, and the effect of this
6230 change, when ramified through the market and norms, is that a balance
6231 of protection for the copyright owners' rights has been lost. This is
6233 <!-- PAGE BREAK 137 -->
6234 after the fall of Saddam, but this time no government is justifying the
6235 looting that results.
6237 <figure id=
"fig-1381">
6238 <title>effective state of anarchy after the Internet.
</title>
6239 <graphic fileref=
"images/1381.png"></graphic>
6242 Neither this analysis nor the conclusions that follow are new to the
6243 warriors. Indeed, in a "White Paper" prepared by the Commerce
6244 Department (one heavily influenced by the copyright warriors) in
1995,
6245 this mix of regulatory modalities had already been identified and the
6246 strategy to respond already mapped. In response to the changes the
6247 Internet had effected, the White Paper argued (
1) Congress should
6248 strengthen intellectual property law, (
2) businesses should adopt
6249 innovative marketing techniques, (
3) technologists should push to
6250 develop code to protect copyrighted material, and (
4) educators should
6251 educate kids to better protect copyright.
6254 This mixed strategy is just what copyright needed
—if it was to
6255 preserve the particular balance that existed before the change induced
6256 by the Internet. And it's just what we should expect the content
6257 industry to push for. It is as American as apple pie to consider the
6258 happy life you have as an entitlement, and to look to the law to
6259 protect it if something comes along to change that happy
6260 life. Homeowners living in a
6262 <!-- PAGE BREAK 138 -->
6263 flood plain have no hesitation appealing to the government to rebuild
6264 (and rebuild again) when a flood (architecture) wipes away their
6265 property (law). Farmers have no hesitation appealing to the government
6266 to bail them out when a virus (architecture) devastates their
6267 crop. Unions have no hesitation appealing to the government to bail
6268 them out when imports (market) wipe out the U.S. steel industry.
6271 Thus, there's nothing wrong or surprising in the content industry's
6272 campaign to protect itself from the harmful consequences of a
6273 technological innovation. And I would be the last person to argue that
6274 the changing technology of the Internet has not had a profound effect
6275 on the content industry's way of doing business, or as John Seely
6276 Brown describes it, its "architecture of revenue."
6278 <indexterm><primary>railroad industry
</primary></indexterm>
6280 But just because a particular interest asks for government support, it
6281 doesn't follow that support should be granted. And just because
6282 technology has weakened a particular way of doing business, it doesn't
6283 follow that the government should intervene to support that old way of
6284 doing business. Kodak, for example, has lost perhaps as much as
20
6285 percent of their traditional film market to the emerging technologies
6286 of digital cameras.
<footnote><para>
6288 See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?"
6289 BusinessWeek online,
2 August
1999, available at
6290 <ulink url=
"http://free-culture.cc/notes/">link #
23</ulink>. For a more
6291 recent analysis of Kodak's place in the market, see Chana
6292 R. Schoenberger, "Can Kodak Make Up for Lost Moments?" Forbes.com,
6
6293 October
2003, available at
6294 <ulink url=
"http://free-culture.cc/notes/">link #
24</ulink>.
6297 Does anyone believe the government should ban digital cameras just to
6298 support Kodak? Highways have weakened the freight business for
6299 railroads. Does anyone think we should ban trucks from roads
6300 <emphasis>for the purpose of
</emphasis> protecting the railroads?
6301 Closer to the subject of this book, remote channel changers have
6302 weakened the "stickiness" of television advertising (if a boring
6303 commercial comes on the TV, the remote makes it easy to surf ), and it
6304 may well be that this change has weakened the television advertising
6305 market. But does anyone believe we should regulate remotes to
6306 reinforce commercial television? (Maybe by limiting them to function
6307 only once a second, or to switch to only ten channels within an hour?)
6310 The obvious answer to these obviously rhetorical questions is no.
6311 In a free society, with a free market, supported by free enterprise and
6312 free trade, the government's role is not to support one way of doing
6313 <!-- PAGE BREAK 139 -->
6314 business against others. Its role is not to pick winners and protect
6315 them against loss. If the government did this generally, then we would
6316 never have any progress. As Microsoft chairman Bill Gates wrote in
6317 1991, in a memo criticizing software patents, "established companies
6318 have an interest in excluding future competitors."
<footnote><para>
6320 Fred Warshofsky,
<citetitle>The Patent Wars
</citetitle> (New York: Wiley,
1994),
170–71.
6323 startup, established companies also have the means. (Think RCA and
6324 FM radio.) A world in which competitors with new ideas must fight
6325 not only the market but also the government is a world in which
6326 competitors with new ideas will not succeed. It is a world of stasis and
6327 increasingly concentrated stagnation. It is the Soviet Union under
6329 <indexterm><primary>Gates, Bill
</primary></indexterm>
6332 Thus, while it is understandable for industries threatened with new
6333 technologies that change the way they do business to look to the
6334 government for protection, it is the special duty of policy makers to
6335 guarantee that that protection not become a deterrent to progress. It
6336 is the duty of policy makers, in other words, to assure that the
6337 changes they create, in response to the request of those hurt by
6338 changing technology, are changes that preserve the incentives and
6339 opportunities for innovation and change.
6342 In the context of laws regulating speech
—which include,
6343 obviously, copyright law
—that duty is even stronger. When the
6344 industry complaining about changing technologies is asking Congress to
6345 respond in a way that burdens speech and creativity, policy makers
6346 should be especially wary of the request. It is always a bad deal for
6347 the government to get into the business of regulating speech
6348 markets. The risks and dangers of that game are precisely why our
6349 framers created the First Amendment to our Constitution: "Congress
6350 shall make no law
… abridging the freedom of speech." So when
6351 Congress is being asked to pass laws that would "abridge" the freedom
6352 of speech, it should ask
— carefully
—whether such
6353 regulation is justified.
6356 My argument just now, however, has nothing to do with whether
6357 <!-- PAGE BREAK 140 -->
6358 the changes that are being pushed by the copyright warriors are
6359 "justified." My argument is about their effect. For before we get to
6360 the question of justification, a hard question that depends a great
6361 deal upon your values, we should first ask whether we understand the
6362 effect of the changes the content industry wants.
6365 Here's the metaphor that will capture the argument to follow.
6367 <indexterm id=
"idxddt" class='startofrange'
>
6368 <primary>DDT
</primary>
6371 In
1873, the chemical DDT was first synthesized. In
1948, Swiss
6372 chemist Paul Hermann Müller won the Nobel Prize for his work
6373 demonstrating the insecticidal properties of DDT. By the
1950s, the
6374 insecticide was widely used around the world to kill disease-carrying
6375 pests. It was also used to increase farm production.
6376 <indexterm><primary>Müller, Paul Hermann
</primary></indexterm>
6379 No one doubts that killing disease-carrying pests or increasing crop
6380 production is a good thing. No one doubts that the work of Müller was
6381 important and valuable and probably saved lives, possibly millions.
6383 <indexterm><primary>Carson, Rachel
</primary></indexterm>
6385 But in
1962, Rachel Carson published
<citetitle>Silent Spring
</citetitle>, which argued that
6386 DDT, whatever its primary benefits, was also having unintended
6387 environmental consequences. Birds were losing the ability to
6388 reproduce. Whole chains of the ecology were being destroyed.
6389 <indexterm><primary>Carson, Rachel
</primary></indexterm>
6390 <indexterm><primary>Silent Sprint (Carson)
</primary></indexterm>
6393 No one set out to destroy the environment. Paul Müller certainly did
6394 not aim to harm any birds. But the effort to solve one set of problems
6395 produced another set which, in the view of some, was far worse than
6396 the problems that were originally attacked. Or more accurately, the
6397 problems DDT caused were worse than the problems it solved, at least
6398 when considering the other, more environmentally friendly ways to
6399 solve the problems that DDT was meant to solve.
6402 It is to this image precisely that Duke University law professor James
6403 Boyle appeals when he argues that we need an "environmentalism" for
6404 culture.
<footnote><para>
6406 See, for example, James Boyle, "A Politics of Intellectual Property:
6407 Environmentalism for the Net?"
<citetitle>Duke Law Journal
</citetitle> 47 (
1997):
87.
6409 His point, and the point I want to develop in the balance of this
6410 chapter, is not that the aims of copyright are flawed. Or that authors
6411 should not be paid for their work. Or that music should be given away
6412 "for free." The point is that some of the ways in which we might
6413 protect authors will have unintended consequences for the cultural
6414 environment, much like DDT had for the natural environment. And just
6415 <!-- PAGE BREAK 141 -->
6416 as criticism of DDT is not an endorsement of malaria or an attack on
6417 farmers, so, too, is criticism of one particular set of regulations
6418 protecting copyright not an endorsement of anarchy or an attack on
6419 authors. It is an environment of creativity that we seek, and we
6420 should be aware of our actions' effects on the environment.
6423 My argument, in the balance of this chapter, tries to map exactly
6424 this effect. No doubt the technology of the Internet has had a dramatic
6425 effect on the ability of copyright owners to protect their content. But
6426 there should also be little doubt that when you add together the
6427 changes in copyright law over time, plus the change in technology that
6428 the Internet is undergoing just now, the net effect of these changes will
6429 not be only that copyrighted work is effectively protected. Also, and
6430 generally missed, the net effect of this massive increase in protection
6431 will be devastating to the environment for creativity.
6434 In a line: To kill a gnat, we are spraying DDT with consequences
6435 for free culture that will be far more devastating than that this gnat will
6438 <indexterm startref=
"idxddt" class='endofrange'
/>
6440 <section id=
"beginnings">
6441 <title>Beginnings
</title>
6443 America copied English copyright law. Actually, we copied and improved
6444 English copyright law. Our Constitution makes the purpose of "creative
6445 property" rights clear; its express limitations reinforce the English
6446 aim to avoid overly powerful publishers.
6449 The power to establish "creative property" rights is granted to
6450 Congress in a way that, for our Constitution, at least, is very
6451 odd. Article I, section
8, clause
8 of our Constitution states that:
6454 Congress has the power to promote the Progress of Science and
6455 useful Arts, by securing for limited Times to Authors and Inventors
6456 the exclusive Right to their respective Writings and Discoveries.
6458 <!-- PAGE BREAK 142 -->
6459 We can call this the "Progress Clause," for notice what this clause
6460 does not say. It does not say Congress has the power to grant
6461 "creative property rights." It says that Congress has the power
6462 <emphasis>to promote progress
</emphasis>. The grant of power is its
6463 purpose, and its purpose is a public one, not the purpose of enriching
6464 publishers, nor even primarily the purpose of rewarding authors.
6467 The Progress Clause expressly limits the term of copyrights. As we saw
6468 in chapter
<xref xrefstyle=
"select: labelnumber" linkend=
"founders"/>,
6469 the English limited the term of copyright so as to assure that a few
6470 would not exercise disproportionate control over culture by exercising
6471 disproportionate control over publishing. We can assume the framers
6472 followed the English for a similar purpose. Indeed, unlike the
6473 English, the framers reinforced that objective, by requiring that
6474 copyrights extend "to Authors" only.
6477 The design of the Progress Clause reflects something about the
6478 Constitution's design in general. To avoid a problem, the framers
6479 built structure. To prevent the concentrated power of publishers, they
6480 built a structure that kept copyrights away from publishers and kept
6481 them short. To prevent the concentrated power of a church, they banned
6482 the federal government from establishing a church. To prevent
6483 concentrating power in the federal government, they built structures
6484 to reinforce the power of the states
—including the Senate, whose
6485 members were at the time selected by the states, and an electoral
6486 college, also selected by the states, to select the president. In each
6487 case, a
<emphasis>structure
</emphasis> built checks and balances into
6488 the constitutional frame, structured to prevent otherwise inevitable
6489 concentrations of power.
6492 I doubt the framers would recognize the regulation we call "copyright"
6493 today. The scope of that regulation is far beyond anything they ever
6494 considered. To begin to understand what they did, we need to put our
6495 "copyright" in context: We need to see how it has changed in the
210
6496 years since they first struck its design.
6499 Some of these changes come from the law: some in light of changes
6500 in technology, and some in light of changes in technology given a
6501 <!-- PAGE BREAK 143 -->
6502 particular concentration of market power. In terms of our model, we
6505 <figure id=
"fig-1441">
6506 <title>Copyright's regulation before the Internet.
</title>
6507 <graphic fileref=
"images/1331.png"></graphic>
6512 <figure id=
"fig-1442">
6513 <title>"Copyright
" today.
</title>
6514 <graphic fileref=
"images/1442.png"></graphic>
6518 <!-- PAGE BREAK 144 -->
6521 <section id=
"lawduration">
6522 <title>Law: Duration
</title>
6524 When the first Congress enacted laws to protect creative property, it
6525 faced the same uncertainty about the status of creative property that
6526 the English had confronted in
1774. Many states had passed laws
6527 protecting creative property, and some believed that these laws simply
6528 supplemented common law rights that already protected creative
6529 authorship.
<footnote>
6532 William W. Crosskey,
<citetitle>Politics and the Constitution in the History of
6533 the United States
</citetitle> (London: Cambridge University Press,
1953), vol.
1,
6534 485–86: "extinguish[ing], by plain implication of `the supreme
6535 Law of the Land,'
<emphasis>the perpetual rights which authors had, or
6536 were supposed by some to have, under the Common Law
</emphasis>"
6538 <indexterm><primary>Crosskey, William W.</primary></indexterm>
6540 This meant that there was no guaranteed public domain in the United
6541 States in 1790. If copyrights were protected by the common law, then
6542 there was no simple way to know whether a work published in the United
6543 States was controlled or free. Just as in England, this lingering
6544 uncertainty would make it hard for publishers to rely upon a public
6545 domain to reprint and distribute works.
6548 That uncertainty ended after Congress passed legislation granting
6549 copyrights. Because federal law overrides any contrary state law,
6550 federal protections for copyrighted works displaced any state law
6551 protections. Just as in England the Statute of Anne eventually meant
6552 that the copyrights for all English works expired, a federal statute
6553 meant that any state copyrights expired as well.
6556 In 1790, Congress enacted the first copyright law. It created a
6557 federal copyright and secured that copyright for fourteen years. If
6558 the author was alive at the end of that fourteen years, then he could
6559 opt to renew the copyright for another fourteen years. If he did not
6560 renew the copyright, his work passed into the public domain.
6563 While there were many works created in the United States in the first
6564 ten years of the Republic, only 5 percent of the works were actually
6565 registered under the federal copyright regime. Of all the work created
6566 in the United States both before 1790 and from 1790 through 1800, 95
6567 percent immediately passed into the public domain; the balance would
6568 pass into the pubic domain within twenty-eight years at most, and more
6569 likely within fourteen years.<footnote><para>
6571 Although 13,000 titles were published in the United States from 1790
6572 to 1799, only 556 copyright registrations were filed; John Tebbel, <citetitle>A
6573 History of Book Publishing in the United States</citetitle>, vol. 1, <citetitle>The Creation
6574 of an Industry, 1630–1865</citetitle> (New York: Bowker, 1972), 141. Of the 21,000
6575 imprints recorded before 1790, only twelve were copyrighted under the
6576 1790 act; William J. Maher, <citetitle>Copyright Term, Retrospective Extension
6577 and the Copyright Law of 1790 in Historical Context</citetitle>, 7–10 (2002),
6578 available at <ulink url="http://free-culture.cc/notes/
">link
6579 #25</ulink>. Thus, the overwhelming majority of works fell
6580 immediately into the public domain. Even those works that were
6581 copyrighted fell into the public domain quickly, because the term of
6582 copyright was short. The initial term of copyright was fourteen years,
6583 with the option of renewal for an additional fourteen years. Copyright
6584 Act of May 31, 1790, §1, 1 stat. 124. </para></footnote>
6587 This system of renewal was a crucial part of the American system
6588 of copyright. It assured that the maximum terms of copyright would be
6589 <!-- PAGE BREAK 145 -->
6590 granted only for works where they were wanted. After the initial term
6591 of fourteen years, if it wasn't worth it to an author to renew his
6592 copyright, then it wasn't worth it to society to insist on the
6596 Fourteen years may not seem long to us, but for the vast majority of
6597 copyright owners at that time, it was long enough: Only a small
6598 minority of them renewed their copyright after fourteen years; the
6599 balance allowed their work to pass into the public
6600 domain.<footnote><para>
6602 Few copyright holders ever chose to renew their copyrights. For
6603 instance, of the 25,006 copyrights registered in 1883, only 894 were
6604 renewed in 1910. For a year-by-year analysis of copyright renewal
6605 rates, see Barbara A. Ringer, "Study No.
31: Renewal of Copyright,
"
6606 <citetitle>Studies on Copyright</citetitle>, vol. 1 (New York: Practicing Law Institute,
6607 1963), 618. For a more recent and comprehensive analysis, see William
6608 M. Landes and Richard A. Posner, "Indefinitely Renewable Copyright,"
6609 <citetitle>University of Chicago Law Review
</citetitle> 70 (
2003):
471,
498–501, and
6610 accompanying figures.
</para></footnote>
6613 Even today, this structure would make sense. Most creative work
6614 has an actual commercial life of just a couple of years. Most books fall
6615 out of print after one year.
<footnote><para>
6617 See Ringer, ch.
9, n.
2.
</para></footnote> When that happens, the
6618 used books are traded free of copyright regulation. Thus the books are
6619 no longer
<emphasis>effectively
</emphasis> controlled by
6620 copyright. The only practical commercial use of the books at that time
6621 is to sell the books as used books; that use
—because it does not
6622 involve publication
—is effectively free.
6625 In the first hundred years of the Republic, the term of copyright was
6626 changed once. In
1831, the term was increased from a maximum of
28
6627 years to a maximum of
42 by increasing the initial term of copyright
6628 from
14 years to
28 years. In the next fifty years of the Republic,
6629 the term increased once again. In
1909, Congress extended the renewal
6630 term of
14 years to
28 years, setting a maximum term of
56 years.
6633 Then, beginning in
1962, Congress started a practice that has defined
6634 copyright law since. Eleven times in the last forty years, Congress
6635 has extended the terms of existing copyrights; twice in those forty
6636 years, Congress extended the term of future copyrights. Initially, the
6637 extensions of existing copyrights were short, a mere one to two years.
6638 In
1976, Congress extended all existing copyrights by nineteen years.
6639 And in
1998, in the Sonny Bono Copyright Term Extension Act, Congress
6640 extended the term of existing and future copyrights by twenty years.
6643 The effect of these extensions is simply to toll, or delay, the passing
6644 of works into the public domain. This latest extension means that the
6645 public domain will have been tolled for thirty-nine out of fifty-five
6646 years, or
70 percent of the time since
1962. Thus, in the twenty years
6648 <!-- PAGE BREAK 146 -->
6649 after the Sonny Bono Act, while one million patents will pass into the
6650 public domain, zero copyrights will pass into the public domain by virtue
6651 of the expiration of a copyright term.
6654 The effect of these extensions has been exacerbated by another,
6655 little-noticed change in the copyright law. Remember I said that the
6656 framers established a two-part copyright regime, requiring a copyright
6657 owner to renew his copyright after an initial term. The requirement of
6658 renewal meant that works that no longer needed copyright protection
6659 would pass more quickly into the public domain. The works remaining
6660 under protection would be those that had some continuing commercial
6664 The United States abandoned this sensible system in
1976. For
6665 all works created after
1978, there was only one copyright term
—the
6666 maximum term. For "natural" authors, that term was life plus fifty
6667 years. For corporations, the term was seventy-five years. Then, in
1992,
6668 Congress abandoned the renewal requirement for all works created
6669 before
1978. All works still under copyright would be accorded the
6670 maximum term then available. After the Sonny Bono Act, that term
6671 was ninety-five years.
6674 This change meant that American law no longer had an automatic way to
6675 assure that works that were no longer exploited passed into the public
6676 domain. And indeed, after these changes, it is unclear whether it is
6677 even possible to put works into the public domain. The public domain
6678 is orphaned by these changes in copyright law. Despite the requirement
6679 that terms be "limited," we have no evidence that anything will limit
6683 The effect of these changes on the average duration of copyright is
6684 dramatic. In
1973, more than
85 percent of copyright owners failed to
6685 renew their copyright. That meant that the average term of copyright
6686 in
1973 was just
32.2 years. Because of the elimination of the renewal
6687 requirement, the average term of copyright is now the maximum term.
6688 In thirty years, then, the average term has tripled, from
32.2 years to
95
6689 years.
<footnote><para>
6691 These statistics are understated. Between the years
1910 and
1962 (the
6692 first year the renewal term was extended), the average term was never
6693 more than thirty-two years, and averaged thirty years. See Landes and
6694 Posner, "Indefinitely Renewable Copyright," loc. cit.
6697 <!-- PAGE BREAK 147 -->
6699 <section id=
"lawscope">
6700 <title>Law: Scope
</title>
6702 The "scope" of a copyright is the range of rights granted by the law.
6703 The scope of American copyright has changed dramatically. Those
6704 changes are not necessarily bad. But we should understand the extent
6705 of the changes if we're to keep this debate in context.
6708 In
1790, that scope was very narrow. Copyright covered only "maps,
6709 charts, and books." That means it didn't cover, for example, music or
6710 architecture. More significantly, the right granted by a copyright gave
6711 the author the exclusive right to "publish" copyrighted works. That
6712 means someone else violated the copyright only if he republished the
6713 work without the copyright owner's permission. Finally, the right granted
6714 by a copyright was an exclusive right to that particular book. The right
6715 did not extend to what lawyers call "derivative works." It would not,
6716 therefore, interfere with the right of someone other than the author to
6717 translate a copyrighted book, or to adapt the story to a different form
6718 (such as a drama based on a published book).
6721 This, too, has changed dramatically. While the contours of copyright
6722 today are extremely hard to describe simply, in general terms, the
6723 right covers practically any creative work that is reduced to a
6724 tangible form. It covers music as well as architecture, drama as well
6725 as computer programs. It gives the copyright owner of that creative
6726 work not only the exclusive right to "publish" the work, but also the
6727 exclusive right of control over any "copies" of that work. And most
6728 significant for our purposes here, the right gives the copyright owner
6729 control over not only his or her particular work, but also any
6730 "derivative work" that might grow out of the original work. In this
6731 way, the right covers more creative work, protects the creative work
6732 more broadly, and protects works that are based in a significant way
6733 on the initial creative work.
6736 At the same time that the scope of copyright has expanded, procedural
6737 limitations on the right have been relaxed. I've already described the
6738 complete removal of the renewal requirement in
1992. In addition
6739 <!-- PAGE BREAK 148 -->
6740 to the renewal requirement, for most of the history of American
6741 copyright law, there was a requirement that a work be registered
6742 before it could receive the protection of a copyright. There was also
6743 a requirement that any copyrighted work be marked either with that
6744 famous
© or the word
<emphasis>copyright
</emphasis>. And for most
6745 of the history of American copyright law, there was a requirement that
6746 works be deposited with the government before a copyright could be
6750 The reason for the registration requirement was the sensible
6751 understanding that for most works, no copyright was required. Again,
6752 in the first ten years of the Republic,
95 percent of works eligible
6753 for copyright were never copyrighted. Thus, the rule reflected the
6754 norm: Most works apparently didn't need copyright, so registration
6755 narrowed the regulation of the law to the few that did. The same
6756 reasoning justified the requirement that a work be marked as
6757 copyrighted
—that way it was easy to know whether a copyright was
6758 being claimed. The requirement that works be deposited was to assure
6759 that after the copyright expired, there would be a copy of the work
6760 somewhere so that it could be copied by others without locating the
6764 All of these "formalities" were abolished in the American system when
6765 we decided to follow European copyright law. There is no requirement
6766 that you register a work to get a copyright; the copyright now is
6767 automatic; the copyright exists whether or not you mark your work with
6768 a
©; and the copyright exists whether or not you actually make a
6769 copy available for others to copy.
6772 Consider a practical example to understand the scope of these
6776 If, in
1790, you wrote a book and you were one of the
5 percent who
6777 actually copyrighted that book, then the copyright law protected you
6778 against another publisher's taking your book and republishing it
6779 without your permission. The aim of the act was to regulate publishers
6780 so as to prevent that kind of unfair competition. In
1790, there were
6781 174 publishers in the United States.
<footnote><para>
6783 See Thomas Bender and David Sampliner, "Poets, Pirates, and the
6784 Creation of American Literature,"
29 <citetitle>New York University Journal of
6785 International Law and Politics
</citetitle> 255 (
1997), and James Gilraeth, ed.,
6786 Federal Copyright Records,
1790–1800 (U.S. G.P.O.,
1987).
6789 The Copyright Act was thus a tiny
6790 regulation of a tiny proportion of a tiny part of the creative market in
6791 the United States
—publishers.
6794 <!-- PAGE BREAK 149 -->
6795 The act left other creators totally unregulated. If I copied your poem
6796 by hand, over and over again, as a way to learn it by heart, my act
6797 was totally unregulated by the
1790 act. If I took your novel and made
6798 a play based upon it, or if I translated it or abridged it, none of
6799 those activities were regulated by the original copyright act. These
6800 creative activities remained free, while the activities of publishers
6804 Today the story is very different: If you write a book, your book is
6805 automatically protected. Indeed, not just your book. Every e-mail,
6806 every note to your spouse, every doodle,
<emphasis>every
</emphasis>
6807 creative act that's reduced to a tangible form
—all of this is
6808 automatically copyrighted. There is no need to register or mark your
6809 work. The protection follows the creation, not the steps you take to
6813 That protection gives you the right (subject to a narrow range of
6814 fair use exceptions) to control how others copy the work, whether they
6815 copy it to republish it or to share an excerpt.
6818 That much is the obvious part. Any system of copyright would
6820 competing publishing. But there's a second part to the copyright of
6821 today that is not at all obvious. This is the protection of "derivative
6822 rights." If you write a book, no one can make a movie out of your
6823 book without permission. No one can translate it without permission.
6824 CliffsNotes can't make an abridgment unless permission is granted. All
6825 of these derivative uses of your original work are controlled by the
6826 copyright holder. The copyright, in other words, is now not just an
6828 right to your writings, but an exclusive right to your writings
6829 and a large proportion of the writings inspired by them.
6832 It is this derivative right that would seem most bizarre to our
6833 framers, though it has become second nature to us. Initially, this
6835 was created to deal with obvious evasions of a narrower
6837 If I write a book, can you change one word and then claim a
6838 copyright in a new and different book? Obviously that would make a
6839 joke of the copyright, so the law was properly expanded to include
6840 those slight modifications as well as the verbatim original work.
6843 <!-- PAGE BREAK 150 -->
6844 In preventing that joke, the law created an astonishing power
6845 within a free culture
—at least, it's astonishing when you
6846 understand that the law applies not just to the commercial publisher
6847 but to anyone with a computer. I understand the wrong in duplicating
6848 and selling someone else's work. But whatever
6849 <emphasis>that
</emphasis> wrong is, transforming someone else's work
6850 is a different wrong. Some view transformation as no wrong at
6851 all
—they believe that our law, as the framers penned it, should
6852 not protect derivative rights at all.
<footnote><para>
6854 Jonathan Zittrain, "The Copyright Cage,"
<citetitle>Legal
6855 Affairs
</citetitle>, July/August
2003, available at
6856 <ulink url=
"http://free-culture.cc/notes/">link #
26</ulink>.
6857 <indexterm><primary>Zittrain, Jonathan
</primary></indexterm>
6859 Whether or not you go that far, it seems
6860 plain that whatever wrong is involved is fundamentally different from
6861 the wrong of direct piracy.
6864 Yet copyright law treats these two different wrongs in the same way. I
6865 can go to court and get an injunction against your pirating my book. I
6866 can go to court and get an injunction against your transformative use
6867 of my book.
<footnote><para>
6869 Professor Rubenfeld has presented a powerful constitutional argument
6870 about the difference that copyright law should draw (from the
6871 perspective of the First Amendment) between mere "copies" and
6872 derivative works. See Jed Rubenfeld, "The Freedom of Imagination:
6873 Copyright's Constitutionality,"
<citetitle>Yale Law
6874 Journal
</citetitle> 112 (
2002):
1–60 (see especially
6876 <indexterm><primary>Rubenfeld, Jeb
</primary></indexterm>
6878 These two different uses of my creative work are treated the same.
6881 This again may seem right to you. If I wrote a book, then why should
6882 you be able to write a movie that takes my story and makes money from
6883 it without paying me or crediting me? Or if Disney creates a creature
6884 called "Mickey Mouse," why should you be able to make Mickey Mouse
6885 toys and be the one to trade on the value that Disney originally
6889 These are good arguments, and, in general, my point is not that the
6890 derivative right is unjustified. My aim just now is much narrower:
6891 simply to make clear that this expansion is a significant change from
6892 the rights originally granted.
6895 <section id=
"lawreach">
6896 <title>Law and Architecture: Reach
</title>
6898 Whereas originally the law regulated only publishers, the change in
6899 copyright's scope means that the law today regulates publishers, users,
6900 and authors. It regulates them because all three are capable of making
6901 copies, and the core of the regulation of copyright law is copies.
<footnote><para>
6903 This is a simplification of the law, but not much of one. The law
6904 certainly regulates more than "copies"
—a public performance of a
6905 copyrighted song, for example, is regulated even though performance
6906 per se doesn't make a copy;
17 <citetitle>United States Code
</citetitle>, section
6907 106(
4). And it certainly sometimes doesn't regulate a "copy";
17
6908 <citetitle>United States Code
</citetitle>, section
112(a). But the presumption under the
6909 existing law (which regulates "copies;"
17 <citetitle>United States Code
</citetitle>, section
6910 102) is that if there is a copy, there is a right.
6914 <!-- PAGE BREAK 151 -->
6915 "Copies." That certainly sounds like the obvious thing for
6916 <emphasis>copy
</emphasis>right law to regulate. But as with Jack
6917 Valenti's argument at the start of this chapter, that "creative
6918 property" deserves the "same rights" as all other property, it is the
6919 <emphasis>obvious
</emphasis> that we need to be most careful
6920 about. For while it may be obvious that in the world before the
6921 Internet, copies were the obvious trigger for copyright law, upon
6922 reflection, it should be obvious that in the world with the Internet,
6923 copies should
<emphasis>not
</emphasis> be the trigger for copyright
6924 law. More precisely, they should not
<emphasis>always
</emphasis> be
6925 the trigger for copyright law.
6928 This is perhaps the central claim of this book, so let me take this
6929 very slowly so that the point is not easily missed. My claim is that the
6930 Internet should at least force us to rethink the conditions under which
6931 the law of copyright automatically applies,
<footnote><para>
6933 Thus, my argument is not that in each place that copyright law
6934 extends, we should repeal it. It is instead that we should have a good
6935 argument for its extending where it does, and should not determine its
6936 reach on the basis of arbitrary and automatic changes caused by
6939 because it is clear that the
6940 current reach of copyright was never contemplated, much less chosen,
6941 by the legislators who enacted copyright law.
6944 We can see this point abstractly by beginning with this largely
6947 <figure id=
"fig-1521">
6948 <title>All potential uses of a book.
</title>
6949 <graphic fileref=
"images/1521.png"></graphic>
6952 <!-- PAGE BREAK 152 -->
6953 Think about a book in real space, and imagine this circle to represent
6954 all its potential
<emphasis>uses
</emphasis>. Most of these uses are
6955 unregulated by copyright law, because the uses don't create a copy. If
6956 you read a book, that act is not regulated by copyright law. If you
6957 give someone the book, that act is not regulated by copyright law. If
6958 you resell a book, that act is not regulated (copyright law expressly
6959 states that after the first sale of a book, the copyright owner can
6960 impose no further conditions on the disposition of the book). If you
6961 sleep on the book or use it to hold up a lamp or let your puppy chew
6962 it up, those acts are not regulated by copyright law, because those
6963 acts do not make a copy.
6965 <figure id=
"fig-1531">
6966 <title>Examples of unregulated uses of a book.
</title>
6967 <graphic fileref=
"images/1531.png"></graphic>
6970 Obviously, however, some uses of a copyrighted book are regulated
6971 by copyright law. Republishing the book, for example, makes a copy. It
6972 is therefore regulated by copyright law. Indeed, this particular use stands
6973 at the core of this circle of possible uses of a copyrighted work. It is the
6974 paradigmatic use properly regulated by copyright regulation (see first
6975 diagram on next page).
6978 Finally, there is a tiny sliver of otherwise regulated copying uses
6979 that remain unregulated because the law considers these "fair uses."
6981 <!-- PAGE BREAK 153 -->
6982 <figure id=
"fig-1541">
6983 <title>Republishing stands at the core of this circle of possible uses of a copyrighted work.
</title>
6984 <graphic fileref=
"images/1541.png"></graphic>
6987 These are uses that themselves involve copying, but which the law
6988 treats as unregulated because public policy demands that they remain
6989 unregulated. You are free to quote from this book, even in a review
6990 that is quite negative, without my permission, even though that
6991 quoting makes a copy. That copy would ordinarily give the copyright
6992 owner the exclusive right to say whether the copy is allowed or not,
6993 but the law denies the owner any exclusive right over such "fair uses"
6994 for public policy (and possibly First Amendment) reasons.
6996 <figure id=
"fig-1542">
6997 <title>Unregulated copying considered
"fair uses.
"</title>
6998 <graphic fileref=
"images/1542.png"></graphic>
7001 <figure id=
"fig-1551">
7002 <title>Uses that before were presumptively unregulated are now presumptively regulated.
</title>
7003 <graphic fileref=
"images/1551.png"></graphic>
7006 <!-- PAGE BREAK 154 -->
7007 In real space, then, the possible uses of a book are divided into three
7008 sorts: (
1) unregulated uses, (
2) regulated uses, and (
3) regulated uses that
7009 are nonetheless deemed "fair" regardless of the copyright owner's views.
7012 Enter the Internet
—a distributed, digital network where every use
7013 of a copyrighted work produces a copy.
<footnote><para>
7015 I don't mean "nature" in the sense that it couldn't be different, but
7016 rather that its present instantiation entails a copy. Optical networks
7017 need not make copies of content they transmit, and a digital network
7018 could be designed to delete anything it copies so that the same number
7021 And because of this single, arbitrary feature of the design of a
7022 digital network, the scope of category
1 changes dramatically. Uses
7023 that before were presumptively unregulated are now presumptively
7024 regulated. No longer is there a set of presumptively unregulated uses
7025 that define a freedom associated with a copyrighted work. Instead,
7026 each use is now subject to the copyright, because each use also makes
7027 a copy
—category
1 gets sucked into category
2. And those who
7028 would defend the unregulated uses of copyrighted work must look
7029 exclusively to category
3, fair uses, to bear the burden of this
7033 So let's be very specific to make this general point clear. Before the
7034 Internet, if you purchased a book and read it ten times, there would
7035 be no plausible
<emphasis>copyright
</emphasis>-related argument that
7036 the copyright owner could make to control that use of her
7037 book. Copyright law would have nothing to say about whether you read
7038 the book once, ten times, or every
7039 <!-- PAGE BREAK 155 -->
7040 night before you went to bed. None of those instances of
7041 use
—reading
— could be regulated by copyright law because
7042 none of those uses produced a copy.
7045 But the same book as an e-book is effectively governed by a different
7046 set of rules. Now if the copyright owner says you may read the book
7047 only once or only once a month, then
<emphasis>copyright
7048 law
</emphasis> would aid the copyright owner in exercising this degree
7049 of control, because of the accidental feature of copyright law that
7050 triggers its application upon there being a copy. Now if you read the
7051 book ten times and the license says you may read it only five times,
7052 then whenever you read the book (or any portion of it) beyond the
7053 fifth time, you are making a copy of the book contrary to the
7054 copyright owner's wish.
7057 There are some people who think this makes perfect sense. My aim
7058 just now is not to argue about whether it makes sense or not. My aim
7059 is only to make clear the change. Once you see this point, a few other
7060 points also become clear:
7063 First, making category
1 disappear is not anything any policy maker
7064 ever intended. Congress did not think through the collapse of the
7065 presumptively unregulated uses of copyrighted works. There is no
7066 evidence at all that policy makers had this idea in mind when they
7067 allowed our policy here to shift. Unregulated uses were an important
7068 part of free culture before the Internet.
7071 Second, this shift is especially troubling in the context of
7072 transformative uses of creative content. Again, we can all understand
7073 the wrong in commercial piracy. But the law now purports to regulate
7074 <emphasis>any
</emphasis> transformation you make of creative work
7075 using a machine. "Copy and paste" and "cut and paste" become
7076 crimes. Tinkering with a story and releasing it to others exposes the
7077 tinkerer to at least a requirement of justification. However
7078 troubling the expansion with respect to copying a particular work, it
7079 is extraordinarily troubling with respect to transformative uses of
7083 Third, this shift from category
1 to category
2 puts an extraordinary
7085 <!-- PAGE BREAK 156 -->
7086 burden on category
3 ("fair use") that fair use never before had to
7087 bear. If a copyright owner now tried to control how many times I
7088 could read a book on-line, the natural response would be to argue that
7089 this is a violation of my fair use rights. But there has never been
7090 any litigation about whether I have a fair use right to read, because
7091 before the Internet, reading did not trigger the application of
7092 copyright law and hence the need for a fair use defense. The right to
7093 read was effectively protected before because reading was not
7097 This point about fair use is totally ignored, even by advocates for
7098 free culture. We have been cornered into arguing that our rights
7099 depend upon fair use
—never even addressing the earlier question
7100 about the expansion in effective regulation. A thin protection
7101 grounded in fair use makes sense when the vast majority of uses are
7102 <emphasis>unregulated
</emphasis>. But when everything becomes
7103 presumptively regulated, then the protections of fair use are not
7107 The case of Video Pipeline is a good example. Video Pipeline was
7108 in the business of making "trailer" advertisements for movies available
7109 to video stores. The video stores displayed the trailers as a way to sell
7110 videos. Video Pipeline got the trailers from the film distributors, put
7111 the trailers on tape, and sold the tapes to the retail stores.
7114 The company did this for about fifteen years. Then, in
1997, it began
7115 to think about the Internet as another way to distribute these
7116 previews. The idea was to expand their "selling by sampling"
7117 technique by giving on-line stores the same ability to enable
7118 "browsing." Just as in a bookstore you can read a few pages of a book
7119 before you buy the book, so, too, you would be able to sample a bit
7120 from the movie on-line before you bought it.
7123 In
1998, Video Pipeline informed Disney and other film distributors
7124 that it intended to distribute the trailers through the Internet
7125 (rather than sending the tapes) to distributors of their videos. Two
7126 years later, Disney told Video Pipeline to stop. The owner of Video
7127 <!-- PAGE BREAK 157 -->
7128 Pipeline asked Disney to talk about the matter
—he had built a
7129 business on distributing this content as a way to help sell Disney
7130 films; he had customers who depended upon his delivering this
7131 content. Disney would agree to talk only if Video Pipeline stopped the
7132 distribution immediately. Video Pipeline thought it was within their
7133 "fair use" rights to distribute the clips as they had. So they filed a
7134 lawsuit to ask the court to declare that these rights were in fact
7138 Disney countersued
—for $
100 million in damages. Those damages
7139 were predicated upon a claim that Video Pipeline had "willfully
7140 infringed" on Disney's copyright. When a court makes a finding of
7141 willful infringement, it can award damages not on the basis of the
7142 actual harm to the copyright owner, but on the basis of an amount set
7143 in the statute. Because Video Pipeline had distributed seven hundred
7144 clips of Disney movies to enable video stores to sell copies of those
7145 movies, Disney was now suing Video Pipeline for $
100 million.
7148 Disney has the right to control its property, of course. But the video
7149 stores that were selling Disney's films also had some sort of right to be
7150 able to sell the films that they had bought from Disney. Disney's claim
7151 in court was that the stores were allowed to sell the films and they were
7152 permitted to list the titles of the films they were selling, but they were
7153 not allowed to show clips of the films as a way of selling them without
7154 Disney's permission.
7157 Now, you might think this is a close case, and I think the courts
7158 would consider it a close case. My point here is to map the change
7159 that gives Disney this power. Before the Internet, Disney couldn't
7160 really control how people got access to their content. Once a video
7161 was in the marketplace, the "first-sale doctrine" would free the
7162 seller to use the video as he wished, including showing portions of it
7163 in order to engender sales of the entire movie video. But with the
7164 Internet, it becomes possible for Disney to centralize control over
7165 access to this content. Because each use of the Internet produces a
7166 copy, use on the Internet becomes subject to the copyright owner's
7167 control. The technology expands the scope of effective control,
7168 because the technology builds a copy into every transaction.
7171 <!-- PAGE BREAK 158 -->
7172 No doubt, a potential is not yet an abuse, and so the potential for
7173 control is not yet the abuse of control. Barnes
& Noble has the
7174 right to say you can't touch a book in their store; property law gives
7175 them that right. But the market effectively protects against that
7176 abuse. If Barnes
& Noble banned browsing, then consumers would
7177 choose other bookstores. Competition protects against the
7178 extremes. And it may well be (my argument so far does not even
7179 question this) that competition would prevent any similar danger when
7180 it comes to copyright. Sure, publishers exercising the rights that
7181 authors have assigned to them might try to regulate how many times you
7182 read a book, or try to stop you from sharing the book with anyone. But
7183 in a competitive market such as the book market, the dangers of this
7184 happening are quite slight.
7187 Again, my aim so far is simply to map the changes that this changed
7188 architecture enables. Enabling technology to enforce the control of
7189 copyright means that the control of copyright is no longer defined by
7190 balanced policy. The control of copyright is simply what private
7191 owners choose. In some contexts, at least, that fact is harmless. But
7192 in some contexts it is a recipe for disaster.
7195 <section id=
"lawforce">
7196 <title>Architecture and Law: Force
</title>
7198 The disappearance of unregulated uses would be change enough, but a
7199 second important change brought about by the Internet magnifies its
7200 significance. This second change does not affect the reach of copyright
7201 regulation; it affects how such regulation is enforced.
7204 In the world before digital technology, it was generally the law that
7205 controlled whether and how someone was regulated by copyright law.
7206 The law, meaning a court, meaning a judge: In the end, it was a human,
7207 trained in the tradition of the law and cognizant of the balances that
7208 tradition embraced, who said whether and how the law would restrict
7211 <indexterm><primary>Casablanca
</primary></indexterm>
7212 <indexterm id=
"idxmarxbrothers" class='startofrange'
>
7213 <primary>Marx Brothers
</primary>
7215 <indexterm id=
"idxwarnerbrothers" class='startofrange'
>
7216 <primary>Warner Brothers
</primary>
7219 There's a famous story about a battle between the Marx Brothers
7220 and Warner Brothers. The Marxes intended to make a parody of
7221 <!-- PAGE BREAK 159 -->
7222 <citetitle>Casablanca
</citetitle>. Warner Brothers objected. They
7223 wrote a nasty letter to the Marxes, warning them that there would be
7224 serious legal consequences if they went forward with their
7225 plan.
<footnote><para>
7227 See David Lange, "Recognizing the Public Domain,"
<citetitle>Law and
7228 Contemporary Problems
</citetitle> 44 (
1981):
172–73.
7232 This led the Marx Brothers to respond in kind. They warned
7233 Warner Brothers that the Marx Brothers "were brothers long before
7234 you were."
<footnote><para>
7236 Ibid. See also Vaidhyanathan,
<citetitle>Copyrights and
7237 Copywrongs
</citetitle>,
1–3.
7238 <indexterm><primary>Vaidhyanathan, Siva
</primary></indexterm>
7240 The Marx Brothers therefore owned the word
7241 <citetitle>brothers
</citetitle>, and if Warner Brothers insisted on
7242 trying to control
<citetitle>Casablanca
</citetitle>, then the Marx
7243 Brothers would insist on control over
<citetitle>brothers
</citetitle>.
7246 An absurd and hollow threat, of course, because Warner Brothers,
7247 like the Marx Brothers, knew that no court would ever enforce such a
7248 silly claim. This extremism was irrelevant to the real freedoms anyone
7249 (including Warner Brothers) enjoyed.
7252 On the Internet, however, there is no check on silly rules, because on
7253 the Internet, increasingly, rules are enforced not by a human but by a
7254 machine: Increasingly, the rules of copyright law, as interpreted by
7255 the copyright owner, get built into the technology that delivers
7256 copyrighted content. It is code, rather than law, that rules. And the
7257 problem with code regulations is that, unlike law, code has no
7258 shame. Code would not get the humor of the Marx Brothers. The
7259 consequence of that is not at all funny.
7261 <indexterm startref=
"idxwarnerbrothers" class='endofrange'
/>
7262 <indexterm startref=
"idxmarxbrothers" class='endofrange'
/>
7264 <indexterm id=
"idxadobeebookreader" class='startofrange'
>
7265 <primary>Adobe eBook Reader
</primary>
7268 Consider the life of my Adobe eBook Reader.
7271 An e-book is a book delivered in electronic form. An Adobe eBook is
7272 not a book that Adobe has published; Adobe simply produces the
7273 software that publishers use to deliver e-books. It provides the
7274 technology, and the publisher delivers the content by using the
7278 On the next page is a picture of an old version of my Adobe eBook
7282 As you can see, I have a small collection of e-books within this
7283 e-book library. Some of these books reproduce content that is in the
7284 public domain:
<citetitle>Middlemarch
</citetitle>, for example, is in
7285 the public domain. Some of them reproduce content that is not in the
7286 public domain: My own book
<citetitle>The Future of Ideas
</citetitle>
7287 is not yet within the public domain. Consider
7288 <citetitle>Middlemarch
</citetitle> first. If you click on my e-book
7290 <!-- PAGE BREAK 160 -->
7291 <citetitle>Middlemarch
</citetitle>, you'll see a fancy cover, and then
7292 a button at the bottom called Permissions.
7294 <figure id=
"fig-1611">
7295 <title>Picture of an old version of Adobe eBook Reader
</title>
7296 <graphic fileref=
"images/1611.png"></graphic>
7299 If you click on the Permissions button, you'll see a list of the
7300 permissions that the publisher purports to grant with this book.
7302 <figure id=
"fig-1612">
7303 <title>List of the permissions that the publisher purports to grant.
</title>
7304 <graphic fileref=
"images/1612.png"></graphic>
7307 <!-- PAGE BREAK 161 -->
7308 According to my eBook Reader, I have the permission to copy to the
7309 clipboard of the computer ten text selections every ten days. (So far,
7310 I've copied no text to the clipboard.) I also have the permission to
7311 print ten pages from the book every ten days. Lastly, I have the
7312 permission to use the Read Aloud button to hear
<citetitle>Middlemarch
</citetitle>
7313 read aloud through the computer.
7316 Here's the e-book for another work in the public domain (including the
7317 translation): Aristotle's
<citetitle>Politics
</citetitle>.
7318 <indexterm><primary>Aristotle
</primary></indexterm>
7319 <indexterm><primary><citetitle>Politics
</citetitle>, (Aristotle)
</primary></indexterm>
7321 <figure id=
"fig-1621">
7322 <title>E-book of Aristotle;s
"Politics
"</title>
7323 <graphic fileref=
"images/1621.png"></graphic>
7326 According to its permissions, no printing or copying is permitted
7327 at all. But fortunately, you can use the Read Aloud button to hear
7330 <figure id=
"fig-1622">
7331 <title>List of the permissions for Aristotle;s
"Politics
".
</title>
7332 <graphic fileref=
"images/1622.png"></graphic>
7335 Finally (and most embarrassingly), here are the permissions for the
7336 original e-book version of my last book,
<citetitle>The Future of
7339 <!-- PAGE BREAK 162 -->
7340 <figure id=
"fig-1631">
7341 <title>List of the permissions for
"The Future of Ideas
".
</title>
7342 <graphic fileref=
"images/1631.png"></graphic>
7345 No copying, no printing, and don't you dare try to listen to this book!
7348 Now, the Adobe eBook Reader calls these controls
7349 "permissions"
— as if the publisher has the power to control how
7350 you use these works. For works under copyright, the copyright owner
7351 certainly does have the power
—up to the limits of the copyright
7352 law. But for work not under copyright, there is no such copyright
7353 power.
<footnote><para>
7355 In principle, a contract might impose a requirement on me. I might,
7356 for example, buy a book from you that includes a contract that says I
7357 will read it only three times, or that I promise to read it three
7358 times. But that obligation (and the limits for creating that
7359 obligation) would come from the contract, not from copyright law, and
7360 the obligations of contract would not necessarily pass to anyone who
7361 subsequently acquired the book.
7363 When my e-book of
<citetitle>Middlemarch
</citetitle> says I have the
7364 permission to copy only ten text selections into the memory every ten
7365 days, what that really means is that the eBook Reader has enabled the
7366 publisher to control how I use the book on my computer, far beyond the
7367 control that the law would enable.
7370 The control comes instead from the code
—from the technology
7371 within which the e-book "lives." Though the e-book says that these are
7372 permissions, they are not the sort of "permissions" that most of us
7373 deal with. When a teenager gets "permission" to stay out till
7374 midnight, she knows (unless she's Cinderella) that she can stay out
7375 till
2 A.M., but will suffer a punishment if she's caught. But when
7376 the Adobe eBook Reader says I have the permission to make ten copies
7377 of the text into the computer's memory, that means that after I've
7378 made ten copies, the computer will not make any more. The same with
7379 the printing restrictions: After ten pages, the eBook Reader will not
7380 print any more pages. It's the same with the silly restriction that
7381 says that you can't use the Read Aloud button to read my book
7382 aloud
—it's not that the company will sue you if you do; instead,
7383 if you push the Read Aloud button with my book, the machine simply
7387 <!-- PAGE BREAK 163 -->
7388 These are
<emphasis>controls
</emphasis>, not permissions. Imagine a
7389 world where the Marx Brothers sold word processing software that, when
7390 you tried to type "Warner Brothers," erased "Brothers" from the
7392 <indexterm><primary>Marx Brothers
</primary></indexterm>
7395 This is the future of copyright law: not so much copyright
7396 <emphasis>law
</emphasis> as copyright
<emphasis>code
</emphasis>. The
7397 controls over access to content will not be controls that are ratified
7398 by courts; the controls over access to content will be controls that
7399 are coded by programmers. And whereas the controls that are built into
7400 the law are always to be checked by a judge, the controls that are
7401 built into the technology have no similar built-in check.
7404 How significant is this? Isn't it always possible to get around the
7405 controls built into the technology? Software used to be sold with
7406 technologies that limited the ability of users to copy the software,
7407 but those were trivial protections to defeat. Why won't it be trivial
7408 to defeat these protections as well?
7411 We've only scratched the surface of this story. Return to the Adobe
7415 Early in the life of the Adobe eBook Reader, Adobe suffered a public
7416 relations nightmare. Among the books that you could download for free
7417 on the Adobe site was a copy of
<citetitle>Alice's Adventures in
7418 Wonderland
</citetitle>. This wonderful book is in the public
7419 domain. Yet when you clicked on Permissions for that book, you got the
7421 <indexterm><primary>Alice's Adventures in Wonderland (Carroll)
</primary></indexterm>
7423 <figure id=
"fig-1641">
7424 <title>List of the permissions for
"Alice's Adventures in
7425 Wonderland
".
</title>
7426 <graphic fileref=
"images/1641.png"></graphic>
7429 <!-- PAGE BREAK 164 -->
7430 Here was a public domain children's book that you were not allowed to
7431 copy, not allowed to lend, not allowed to give, and, as the
7432 "permissions" indicated, not allowed to "read aloud"!
7435 The public relations nightmare attached to that final permission.
7436 For the text did not say that you were not permitted to use the Read
7437 Aloud button; it said you did not have the permission to read the book
7438 aloud. That led some people to think that Adobe was restricting the
7439 right of parents, for example, to read the book to their children, which
7440 seemed, to say the least, absurd.
7443 Adobe responded quickly that it was absurd to think that it was trying
7444 to restrict the right to read a book aloud. Obviously it was only
7445 restricting the ability to use the Read Aloud button to have the book
7446 read aloud. But the question Adobe never did answer is this: Would
7447 Adobe thus agree that a consumer was free to use software to hack
7448 around the restrictions built into the eBook Reader? If some company
7449 (call it Elcomsoft) developed a program to disable the technological
7450 protection built into an Adobe eBook so that a blind person, say,
7451 could use a computer to read the book aloud, would Adobe agree that
7452 such a use of an eBook Reader was fair? Adobe didn't answer because
7453 the answer, however absurd it might seem, is no.
7456 The point is not to blame Adobe. Indeed, Adobe is among the most
7457 innovative companies developing strategies to balance open access to
7458 content with incentives for companies to innovate. But Adobe's
7459 technology enables control, and Adobe has an incentive to defend this
7460 control. That incentive is understandable, yet what it creates is
7463 <indexterm startref=
"idxadobeebookreader" class='endofrange'
/>
7465 To see the point in a particularly absurd context, consider a favorite
7466 story of mine that makes the same point.
7468 <indexterm id=
"idxaibo" class='startofrange'
>
7469 <primary>Aibo robotic dog
</primary>
7472 Consider the robotic dog made by Sony named "Aibo." The Aibo
7473 learns tricks, cuddles, and follows you around. It eats only electricity
7474 and that doesn't leave that much of a mess (at least in your house).
7477 The Aibo is expensive and popular. Fans from around the world
7478 have set up clubs to trade stories. One fan in particular set up a Web
7479 site to enable information about the Aibo dog to be shared. This fan set
7480 <!-- PAGE BREAK 165 -->
7481 up aibopet.com (and aibohack.com, but that resolves to the same site),
7482 and on that site he provided information about how to teach an Aibo
7483 to do tricks in addition to the ones Sony had taught it.
7486 "Teach" here has a special meaning. Aibos are just cute computers.
7487 You teach a computer how to do something by programming it
7488 differently. So to say that aibopet.com was giving information about
7489 how to teach the dog to do new tricks is just to say that aibopet.com
7490 was giving information to users of the Aibo pet about how to hack
7491 their computer "dog" to make it do new tricks (thus, aibohack.com).
7494 If you're not a programmer or don't know many programmers, the
7495 word
<citetitle>hack
</citetitle> has a particularly unfriendly connotation. Nonprogrammers
7496 hack bushes or weeds. Nonprogrammers in horror movies do even
7497 worse. But to programmers, or coders, as I call them,
<citetitle>hack
</citetitle> is a much
7498 more positive term.
<citetitle>Hack
</citetitle> just means code that enables the program to
7499 do something it wasn't originally intended or enabled to do. If you buy
7500 a new printer for an old computer, you might find the old computer
7501 doesn't run, or "drive," the printer. If you discovered that, you'd later be
7502 happy to discover a hack on the Net by someone who has written a
7503 driver to enable the computer to drive the printer you just bought.
7506 Some hacks are easy. Some are unbelievably hard. Hackers as a
7507 community like to challenge themselves and others with increasingly
7508 difficult tasks. There's a certain respect that goes with the talent to hack
7509 well. There's a well-deserved respect that goes with the talent to hack
7513 The Aibo fan was displaying a bit of both when he hacked the program
7514 and offered to the world a bit of code that would enable the Aibo to
7515 dance jazz. The dog wasn't programmed to dance jazz. It was a clever
7516 bit of tinkering that turned the dog into a more talented creature
7517 than Sony had built.
7519 <indexterm startref=
"idxaibo" class='endofrange'
/>
7521 I've told this story in many contexts, both inside and outside the
7522 United States. Once I was asked by a puzzled member of the audience,
7523 is it permissible for a dog to dance jazz in the United States? We
7524 forget that stories about the backcountry still flow across much of
7527 <!-- PAGE BREAK 166 -->
7528 world. So let's just be clear before we continue: It's not a crime
7529 anywhere (anymore) to dance jazz. Nor is it a crime to teach your dog
7530 to dance jazz. Nor should it be a crime (though we don't have a lot to
7531 go on here) to teach your robot dog to dance jazz. Dancing jazz is a
7532 completely legal activity. One imagines that the owner of aibopet.com
7533 thought,
<emphasis>What possible problem could there be with teaching
7534 a robot dog to dance?
</emphasis>
7537 Let's put the dog to sleep for a minute, and turn to a pony show
—
7538 not literally a pony show, but rather a paper that a Princeton academic
7539 named Ed Felten prepared for a conference. This Princeton academic
7540 is well known and respected. He was hired by the government in the
7541 Microsoft case to test Microsoft's claims about what could and could
7542 not be done with its own code. In that trial, he demonstrated both his
7543 brilliance and his coolness. Under heavy badgering by Microsoft
7544 lawyers, Ed Felten stood his ground. He was not about to be bullied
7545 into being silent about something he knew very well.
7548 But Felten's bravery was really tested in April
2001.
<footnote><para>
7550 See Pamela Samuelson, "Anticircumvention Rules: Threat to Science,"
7551 <citetitle>Science
</citetitle> 293 (
2001):
2028; Brendan I. Koerner,
"Play Dead: Sony Muzzles
7552 the Techies Who Teach a Robot Dog New Tricks," <citetitle>American Prospect
</citetitle>,
7553 January
2002; "Court Dismisses Computer Scientists' Challenge to
7554 DMCA,"
<citetitle>Intellectual Property Litigation Reporter
</citetitle>,
11 December
2001; Bill
7555 Holland, "Copyright Act Raising Free-Speech Concerns,"
<citetitle>Billboard
</citetitle>,
7556 May
2001; Janelle Brown, "Is the RIAA Running Scared?" Salon.com,
7557 April
2001; Electronic Frontier Foundation, "Frequently Asked
7558 Questions about
<citetitle>Felten and USENIX
</citetitle> v.
<citetitle>RIAA
</citetitle> Legal Case," available at
7559 <ulink url=
"http://free-culture.cc/notes/">link #
27</ulink>.
7560 <indexterm><primary>Electronic Frontier Foundation
</primary></indexterm>
7562 He and a group of colleagues were working on a paper to be submitted
7563 at conference. The paper was intended to describe the weakness in an
7564 encryption system being developed by the Secure Digital Music
7565 Initiative as a technique to control the distribution of music.
7568 The SDMI coalition had as its goal a technology to enable content
7569 owners to exercise much better control over their content than the
7570 Internet, as it originally stood, granted them. Using encryption, SDMI
7571 hoped to develop a standard that would allow the content owner to say
7572 "this music cannot be copied," and have a computer respect that
7573 command. The technology was to be part of a "trusted system" of
7574 control that would get content owners to trust the system of the
7578 When SDMI thought it was close to a standard, it set up a competition.
7579 In exchange for providing contestants with the code to an
7580 SDMI-encrypted bit of content, contestants were to try to crack it
7581 and, if they did, report the problems to the consortium.
7584 <!-- PAGE BREAK 167 -->
7585 Felten and his team figured out the encryption system quickly. He and
7586 the team saw the weakness of this system as a type: Many encryption
7587 systems would suffer the same weakness, and Felten and his team
7588 thought it worthwhile to point this out to those who study encryption.
7591 Let's review just what Felten was doing. Again, this is the United
7592 States. We have a principle of free speech. We have this principle not
7593 just because it is the law, but also because it is a really great
7594 idea. A strongly protected tradition of free speech is likely to
7595 encourage a wide range of criticism. That criticism is likely, in
7596 turn, to improve the systems or people or ideas criticized.
7599 What Felten and his colleagues were doing was publishing a paper
7600 describing the weakness in a technology. They were not spreading free
7601 music, or building and deploying this technology. The paper was an
7602 academic essay, unintelligible to most people. But it clearly showed the
7603 weakness in the SDMI system, and why SDMI would not, as presently
7604 constituted, succeed.
7607 What links these two, aibopet.com and Felten, is the letters they
7608 then received. Aibopet.com received a letter from Sony about the
7609 aibopet.com hack. Though a jazz-dancing dog is perfectly legal, Sony
7614 Your site contains information providing the means to circumvent
7615 AIBO-ware's copy protection protocol constituting a violation of the
7616 anti-circumvention provisions of the Digital Millennium Copyright Act.
7620 And though an academic paper describing the weakness in a system
7621 of encryption should also be perfectly legal, Felten received a letter
7622 from an RIAA lawyer that read:
7626 Any disclosure of information gained from participating in the
7627 <!-- PAGE BREAK 168 -->
7628 Public Challenge would be outside the scope of activities permitted by
7629 the Agreement and could subject you and your research team to actions
7630 under the Digital Millennium Copyright Act ("DMCA").
7634 In both cases, this weirdly Orwellian law was invoked to control the
7635 spread of information. The Digital Millennium Copyright Act made
7636 spreading such information an offense.
7639 The DMCA was enacted as a response to copyright owners' first fear
7640 about cyberspace. The fear was that copyright control was effectively
7641 dead; the response was to find technologies that might compensate.
7642 These new technologies would be copyright protection
7643 technologies
— technologies to control the replication and
7644 distribution of copyrighted material. They were designed as
7645 <emphasis>code
</emphasis> to modify the original
7646 <emphasis>code
</emphasis> of the Internet, to reestablish some
7647 protection for copyright owners.
7650 The DMCA was a bit of law intended to back up the protection of this
7651 code designed to protect copyrighted material. It was, we could say,
7652 <emphasis>legal code
</emphasis> intended to buttress
7653 <emphasis>software code
</emphasis> which itself was intended to
7654 support the
<emphasis>legal code of copyright
</emphasis>.
7657 But the DMCA was not designed merely to protect copyrighted works to
7658 the extent copyright law protected them. Its protection, that is, did
7659 not end at the line that copyright law drew. The DMCA regulated
7660 devices that were designed to circumvent copyright protection
7661 measures. It was designed to ban those devices, whether or not the use
7662 of the copyrighted material made possible by that circumvention would
7663 have been a copyright violation.
7666 Aibopet.com and Felten make the point. The Aibo hack circumvented a
7667 copyright protection system for the purpose of enabling the dog to
7668 dance jazz. That enablement no doubt involved the use of copyrighted
7669 material. But as aibopet.com's site was noncommercial, and the use did
7670 not enable subsequent copyright infringements, there's no doubt that
7671 aibopet.com's hack was fair use of Sony's copyrighted material. Yet
7672 fair use is not a defense to the DMCA. The question is not whether the
7673 <!-- PAGE BREAK 169 -->
7674 use of the copyrighted material was a copyright violation. The question
7675 is whether a copyright protection system was circumvented.
7678 The threat against Felten was more attenuated, but it followed the
7679 same line of reasoning. By publishing a paper describing how a
7680 copyright protection system could be circumvented, the RIAA lawyer
7681 suggested, Felten himself was distributing a circumvention technology.
7682 Thus, even though he was not himself infringing anyone's copyright,
7683 his academic paper was enabling others to infringe others' copyright.
7685 <indexterm><primary>Rogers, Fred
</primary></indexterm>
7687 The bizarreness of these arguments is captured in a cartoon drawn in
7688 1981 by Paul Conrad. At that time, a court in California had held that
7689 the VCR could be banned because it was a copyright-infringing
7690 technology: It enabled consumers to copy films without the permission
7691 of the copyright owner. No doubt there were uses of the technology
7692 that were legal: Fred Rogers, aka "
<citetitle>Mr. Rogers
</citetitle>,"
7693 for example, had testified in that case that he wanted people to feel
7694 free to tape Mr. Rogers' Neighborhood.
7695 <indexterm><primary>Conrad, Paul
</primary></indexterm>
7699 Some public stations, as well as commercial stations, program the
7700 "Neighborhood" at hours when some children cannot use it. I think that
7701 it's a real service to families to be able to record such programs and
7702 show them at appropriate times. I have always felt that with the
7703 advent of all of this new technology that allows people to tape the
7704 "Neighborhood" off-the-air, and I'm speaking for the "Neighborhood"
7705 because that's what I produce, that they then become much more active
7706 in the programming of their family's television life. Very frankly, I
7707 am opposed to people being programmed by others. My whole approach in
7708 broadcasting has always been "You are an important person just the way
7709 you are. You can make healthy decisions." Maybe I'm going on too long,
7710 but I just feel that anything that allows a person to be more active
7711 in the control of his or her life, in a healthy way, is
7712 important.
<footnote><para>
7714 <citetitle>Sony Corporation of America
</citetitle> v.
<citetitle>Universal City Studios, Inc
</citetitle>.,
464 U.S.
417,
7715 455 fn.
27 (
1984). Rogers never changed his view about the VCR. See
7716 James Lardner,
<citetitle>Fast Forward: Hollywood, the Japanese, and the Onslaught of
7717 the VCR
</citetitle> (New York: W. W. Norton,
1987),
270–71.
7718 <indexterm><primary>Rogers, Fred
</primary></indexterm>
7723 <!-- PAGE BREAK 170 -->
7724 Even though there were uses that were legal, because there were
7725 some uses that were illegal, the court held the companies producing
7726 the VCR responsible.
7729 This led Conrad to draw the cartoon below, which we can adopt to
7731 <indexterm><primary>Conrad, Paul
</primary></indexterm>
7734 No argument I have can top this picture, but let me try to get close.
7737 The anticircumvention provisions of the DMCA target copyright
7738 circumvention technologies. Circumvention technologies can be used for
7739 different ends. They can be used, for example, to enable massive
7740 pirating of copyrighted material
—a bad end. Or they can be used
7741 to enable the use of particular copyrighted materials in ways that
7742 would be considered fair use
—a good end.
7745 A handgun can be used to shoot a police officer or a child. Most
7746 <!-- PAGE BREAK 171 -->
7747 would agree such a use is bad. Or a handgun can be used for target
7748 practice or to protect against an intruder. At least some would say that
7749 such a use would be good. It, too, is a technology that has both good
7752 <figure id=
"fig-1711">
7753 <title>VCR/handgun cartoon.
</title>
7754 <graphic fileref=
"images/1711.png"></graphic>
7757 The obvious point of Conrad's cartoon is the weirdness of a world
7758 where guns are legal, despite the harm they can do, while VCRs (and
7759 circumvention technologies) are illegal. Flash:
<emphasis>No one ever
7760 died from copyright circumvention
</emphasis>. Yet the law bans circumvention
7761 technologies absolutely, despite the potential that they might do some
7762 good, but permits guns, despite the obvious and tragic harm they do.
7763 <indexterm><primary>Conrad, Paul
</primary></indexterm>
7766 The Aibo and RIAA examples demonstrate how copyright owners are
7767 changing the balance that copyright law grants. Using code, copyright
7768 owners restrict fair use; using the DMCA, they punish those who would
7769 attempt to evade the restrictions on fair use that they impose through
7770 code. Technology becomes a means by which fair use can be erased; the
7771 law of the DMCA backs up that erasing.
7774 This is how
<emphasis>code
</emphasis> becomes
7775 <emphasis>law
</emphasis>. The controls built into the technology of
7776 copy and access protection become rules the violation of which is also
7777 a violation of the law. In this way, the code extends the
7778 law
—increasing its regulation, even if the subject it regulates
7779 (activities that would otherwise plainly constitute fair use) is
7780 beyond the reach of the law. Code becomes law; code extends the law;
7781 code thus extends the control that copyright owners effect
—at
7782 least for those copyright holders with the lawyers who can write the
7783 nasty letters that Felten and aibopet.com received.
7786 There is one final aspect of the interaction between architecture and
7787 law that contributes to the force of copyright's regulation. This is
7788 the ease with which infringements of the law can be detected. For
7789 contrary to the rhetoric common at the birth of cyberspace that on the
7790 Internet, no one knows you're a dog, increasingly, given changing
7791 technologies deployed on the Internet, it is easy to find the dog who
7792 committed a legal wrong. The technologies of the Internet are open to
7793 snoops as well as sharers, and the snoops are increasingly good at
7794 tracking down the identity of those who violate the rules.
7798 <!-- PAGE BREAK 172 -->
7799 For example, imagine you were part of a
<citetitle>Star Trek
</citetitle> fan club. You
7800 gathered every month to share trivia, and maybe to enact a kind of fan
7801 fiction about the show. One person would play Spock, another, Captain
7802 Kirk. The characters would begin with a plot from a real story, then
7803 simply continue it.
<footnote><para>
7805 For an early and prescient analysis, see Rebecca Tushnet, "Legal Fictions,
7806 Copyright, Fan Fiction, and a New Common Law,"
<citetitle>Loyola of Los Angeles
7807 Entertainment Law Journal
</citetitle> 17 (
1997):
651.
7811 Before the Internet, this was, in effect, a totally unregulated
7812 activity. No matter what happened inside your club room, you would
7813 never be interfered with by the copyright police. You were free in
7814 that space to do as you wished with this part of our culture. You were
7815 allowed to build on it as you wished without fear of legal control.
7818 But if you moved your club onto the Internet, and made it generally
7819 available for others to join, the story would be very different. Bots
7820 scouring the Net for trademark and copyright infringement would
7821 quickly find your site. Your posting of fan fiction, depending upon
7822 the ownership of the series that you're depicting, could well inspire
7823 a lawyer's threat. And ignoring the lawyer's threat would be extremely
7824 costly indeed. The law of copyright is extremely efficient. The
7825 penalties are severe, and the process is quick.
7828 This change in the effective force of the law is caused by a change
7829 in the ease with which the law can be enforced. That change too shifts
7830 the law's balance radically. It is as if your car transmitted the speed at
7831 which you traveled at every moment that you drove; that would be just
7832 one step before the state started issuing tickets based upon the data you
7833 transmitted. That is, in effect, what is happening here.
7836 <section id=
"marketconcentration">
7837 <title>Market: Concentration
</title>
7839 So copyright's duration has increased dramatically
—tripled in
7840 the past thirty years. And copyright's scope has increased as
7841 well
—from regulating only publishers to now regulating just
7842 about everyone. And copyright's reach has changed, as every action
7843 becomes a copy and hence presumptively regulated. And as technologists
7845 <!-- PAGE BREAK 173 -->
7846 to control the use of content, and as copyright is increasingly
7847 enforced through technology, copyright's force changes, too. Misuse is
7848 easier to find and easier to control. This regulation of the creative
7849 process, which began as a tiny regulation governing a tiny part of the
7850 market for creative work, has become the single most important
7851 regulator of creativity there is. It is a massive expansion in the
7852 scope of the government's control over innovation and creativity; it
7853 would be totally unrecognizable to those who gave birth to copyright's
7857 Still, in my view, all of these changes would not matter much if it
7858 weren't for one more change that we must also consider. This is a
7859 change that is in some sense the most familiar, though its significance
7860 and scope are not well understood. It is the one that creates precisely the
7861 reason to be concerned about all the other changes I have described.
7864 This is the change in the concentration and integration of the media.
7865 In the past twenty years, the nature of media ownership has undergone
7866 a radical alteration, caused by changes in legal rules governing the
7867 media. Before this change happened, the different forms of media were
7868 owned by separate media companies. Now, the media is increasingly
7869 owned by only a few companies. Indeed, after the changes that the FCC
7870 announced in June
2003, most expect that within a few years, we will
7871 live in a world where just three companies control more than percent
7875 These changes are of two sorts: the scope of concentration, and its
7879 Changes in scope are the easier ones to describe. As Senator John
7880 McCain summarized the data produced in the FCC's review of media
7881 ownership, "five companies control
85 percent of our media sources."
<footnote><para>
7883 FCC Oversight: Hearing Before the Senate Commerce, Science and
7884 Transportation Committee,
108th Cong.,
1st sess. (
22 May
2003)
7885 (statement of Senator John McCain).
</para></footnote>
7886 The five recording labels of Universal Music Group, BMG, Sony Music
7887 Entertainment, Warner Music Group, and EMI control
84.8 percent of the
7888 U.S. music market.
<footnote><para>
7890 Lynette Holloway, "Despite a Marketing Blitz, CD Sales Continue to
7891 Slide,"
<citetitle>New York Times
</citetitle>,
23 December
2002.
7893 The "five largest cable companies pipe
7894 programming to
74 percent of the cable subscribers nationwide."
<footnote><para>
7896 Molly Ivins, "Media Consolidation Must Be Stopped,"
<citetitle>Charleston Gazette
</citetitle>,
7899 <indexterm><primary>BMG
</primary></indexterm>
7900 <indexterm><primary>EMI
</primary></indexterm>
7901 <indexterm><primary>McCain, John
</primary></indexterm>
7902 <indexterm><primary>Universal Music Group
</primary></indexterm>
7903 <indexterm><primary>Warner Music Group
</primary></indexterm>
7906 The story with radio is even more dramatic. Before deregulation,
7907 the nation's largest radio broadcasting conglomerate owned fewer than
7908 <!-- PAGE BREAK 174 -->
7909 seventy-five stations. Today
<emphasis>one
</emphasis> company owns
7910 more than
1,
200 stations. During that period of consolidation, the
7911 total number of radio owners dropped by
34 percent. Today, in most
7912 markets, the two largest broadcasters control
74 percent of that
7913 market's revenues. Overall, just four companies control
90 percent of
7914 the nation's radio advertising revenues.
7917 Newspaper ownership is becoming more concentrated as well. Today,
7918 there are six hundred fewer daily newspapers in the United States than
7919 there were eighty years ago, and ten companies control half of the
7920 nation's circulation. There are twenty major newspaper publishers in
7921 the United States. The top ten film studios receive
99 percent of all
7922 film revenue. The ten largest cable companies account for
85 percent
7923 of all cable revenue. This is a market far from the free press the
7924 framers sought to protect. Indeed, it is a market that is quite well
7925 protected
— by the market.
7928 Concentration in size alone is one thing. The more invidious
7929 change is in the nature of that concentration. As author James Fallows
7930 put it in a recent article about Rupert Murdoch,
7931 <indexterm><primary>Fallows, James
</primary></indexterm>
7935 Murdoch's companies now constitute a production system
7936 unmatched in its integration. They supply content
—Fox movies
7937 … Fox TV shows
… Fox-controlled sports broadcasts, plus
7938 newspapers and books. They sell the content to the public and to
7939 advertisers
—in newspapers, on the broadcast network, on the
7940 cable channels. And they operate the physical distribution system
7941 through which the content reaches the customers. Murdoch's satellite
7942 systems now distribute News Corp. content in Europe and Asia; if
7943 Murdoch becomes DirecTV's largest single owner, that system will serve
7944 the same function in the United States.
<footnote><para>
7946 James Fallows, "The Age of Murdoch,"
<citetitle>Atlantic Monthly
</citetitle> (September
7948 <indexterm><primary>Fallows, James
</primary></indexterm>
7953 The pattern with Murdoch is the pattern of modern media. Not
7954 just large companies owning many radio stations, but a few companies
7955 owning as many outlets of media as possible. A picture describes this
7956 pattern better than a thousand words could do:
7958 <figure id=
"fig-1761">
7959 <title>Pattern of modern media ownership.
</title>
7960 <graphic fileref=
"images/1761.png"></graphic>
7963 <!-- PAGE BREAK 175 -->
7964 Does this concentration matter? Will it affect what is made, or
7965 what is distributed? Or is it merely a more efficient way to produce and
7969 My view was that concentration wouldn't matter. I thought it was
7970 nothing more than a more efficient financial structure. But now, after
7971 reading and listening to a barrage of creators try to convince me to the
7972 contrary, I am beginning to change my mind.
7975 Here's a representative story that begins to suggest how this
7976 integration may matter.
7978 <indexterm><primary>Lear, Norman
</primary></indexterm>
7979 <indexterm><primary>ABC
</primary></indexterm>
7980 <indexterm><primary>All in the Family
</primary></indexterm>
7982 In
1969, Norman Lear created a pilot for
<citetitle>All in the Family
</citetitle>. He took
7983 the pilot to ABC. The network didn't like it. It was too edgy, they told
7984 Lear. Make it again. Lear made a second pilot, more edgy than the
7985 first. ABC was exasperated. You're missing the point, they told Lear.
7986 We wanted less edgy, not more.
7989 Rather than comply, Lear simply took the show elsewhere. CBS
7990 was happy to have the series; ABC could not stop Lear from walking.
7991 The copyrights that Lear held assured an independence from network
7992 control.
<footnote><para>
7994 Leonard Hill, "The Axis of Access," remarks before Weidenbaum Center
7995 Forum, "Entertainment Economics: The Movie Industry," St. Louis,
7996 Missouri,
3 April
2003 (transcript of prepared remarks available at
7997 <ulink url=
"http://free-culture.cc/notes/">link #
28</ulink>;
7998 for the Lear story, not included in the prepared remarks, see
7999 <ulink url=
"http://free-culture.cc/notes/">link #
29</ulink>).
8004 <!-- PAGE BREAK 176 -->
8005 The network did not control those copyrights because the law forbade
8006 the networks from controlling the content they syndicated. The law
8007 required a separation between the networks and the content producers;
8008 that separation would guarantee Lear freedom. And as late as
1992,
8009 because of these rules, the vast majority of prime time
8010 television
—75 percent of it
—was "independent" of the
8014 In
1994, the FCC abandoned the rules that required this independence.
8015 After that change, the networks quickly changed the balance. In
1985,
8016 there were twenty-five independent television production studios; in
8017 2002, only five independent television studios remained. "In
1992,
8018 only
15 percent of new series were produced for a network by a company
8019 it controlled. Last year, the percentage of shows produced by
8020 controlled companies more than quintupled to
77 percent." "In
1992,
16
8021 new series were produced independently of conglomerate control, last
8022 year there was one."
<footnote><para>
8024 NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media
8025 Ownership Before the Senate Commerce Committee,
108th Cong.,
1st
8026 sess. (
2003) (testimony of Gene Kimmelman on behalf of Consumers Union
8027 and the Consumer Federation of America), available at
8028 <ulink url=
"http://free-culture.cc/notes/">link #
30</ulink>. Kimmelman
8029 quotes Victoria Riskin, president of Writers Guild of America, West,
8030 in her Remarks at FCC En Banc Hearing, Richmond, Virginia,
27 February
8033 In
2002,
75 percent of prime time television was owned by the networks
8034 that ran it. "In the ten-year period between
1992 and
2002, the number
8035 of prime time television hours per week produced by network studios
8036 increased over
200%, whereas the number of prime time television hours
8037 per week produced by independent studios decreased
8038 63%."
<footnote><para>
8043 <indexterm><primary>All in the Family
</primary></indexterm>
8045 Today, another Norman Lear with another
<citetitle>All in the Family
</citetitle> would
8046 find that he had the choice either to make the show less edgy or to be
8047 fired: The content of any show developed for a network is increasingly
8048 owned by the network.
8051 While the number of channels has increased dramatically, the ownership
8052 of those channels has narrowed to an ever smaller and smaller few. As
8053 Barry Diller said to Bill Moyers,
8054 <indexterm><primary>Diller, Barry
</primary></indexterm>
8055 <indexterm><primary>Moyers, Bill
</primary></indexterm>
8059 Well, if you have companies that produce, that finance, that air on
8060 their channel and then distribute worldwide everything that goes
8061 through their controlled distribution system, then what you get is
8062 fewer and fewer actual voices participating in the process. [We
8063 <!-- PAGE BREAK 177 -->
8064 u]sed to have dozens and dozens of thriving independent production
8065 companies producing television programs. Now you have less than a
8066 handful.
<footnote><para>
8068 "Barry Diller Takes on Media Deregulation,"
<citetitle>Now with Bill Moyers
</citetitle>, Bill
8069 Moyers,
25 April
2003, edited transcript available at
8070 <ulink url=
"http://free-culture.cc/notes/">link #
31</ulink>.
8075 This narrowing has an effect on what is produced. The product of such
8076 large and concentrated networks is increasingly homogenous.
8077 Increasingly safe. Increasingly sterile. The product of news shows
8078 from networks like this is increasingly tailored to the message the
8079 network wants to convey. This is not the communist party, though from
8080 the inside, it must feel a bit like the communist party. No one can
8081 question without risk of consequence
—not necessarily banishment
8082 to Siberia, but punishment nonetheless. Independent, critical,
8083 different views are quashed. This is not the environment for a
8086 <indexterm><primary>Clark, Kim B.
</primary></indexterm>
8088 Economics itself offers a parallel that explains why this integration
8089 affects creativity. Clay Christensen has written about the "Innovator's
8090 Dilemma": the fact that large traditional firms find it rational to ignore
8091 new, breakthrough technologies that compete with their core business.
8092 The same analysis could help explain why large, traditional media
8093 companies would find it rational to ignore new cultural trends.
<footnote><para>
8095 Clayton M. Christensen,
<citetitle>The Innovator's Dilemma: The
8096 Revolutionary National Bestseller that Changed the Way We Do Business
</citetitle>
8097 (Cambridge: Harvard Business School Press,
1997). Christensen
8098 acknowledges that the idea was first suggested by Dean Kim Clark. See
8099 Kim B. Clark, "The Interaction of Design Hierarchies and Market
8100 Concepts in Technological Evolution,"
<citetitle>Research Policy
</citetitle> 14 (
1985):
8101 235–51. For a more recent study, see Richard Foster and Sarah
8102 Kaplan,
<citetitle>Creative Destruction: Why Companies That Are Built to Last
8103 Underperform the Market
—and How to Successfully Transform Them
</citetitle>
8104 (New York: Currency/Doubleday,
2001).
</para></footnote>
8106 Lumbering giants not only don't, but should not, sprint. Yet if the
8107 field is only open to the giants, there will be far too little
8109 <indexterm><primary>Christensen, Clayton M.
</primary></indexterm>
8112 I don't think we know enough about the economics of the media
8113 market to say with certainty what concentration and integration will
8114 do. The efficiencies are important, and the effect on culture is hard to
8118 But there is a quintessentially obvious example that does strongly
8119 suggest the concern.
8122 In addition to the copyright wars, we're in the middle of the drug
8123 wars. Government policy is strongly directed against the drug cartels;
8124 criminal and civil courts are filled with the consequences of this battle.
8127 Let me hereby disqualify myself from any possible appointment to
8128 any position in government by saying I believe this war is a profound
8129 mistake. I am not pro drugs. Indeed, I come from a family once
8131 <!-- PAGE BREAK 178 -->
8132 wrecked by drugs
—though the drugs that wrecked my family were
8133 all quite legal. I believe this war is a profound mistake because the
8134 collateral damage from it is so great as to make waging the war
8135 insane. When you add together the burdens on the criminal justice
8136 system, the desperation of generations of kids whose only real
8137 economic opportunities are as drug warriors, the queering of
8138 constitutional protections because of the constant surveillance this
8139 war requires, and, most profoundly, the total destruction of the legal
8140 systems of many South American nations because of the power of the
8141 local drug cartels, I find it impossible to believe that the marginal
8142 benefit in reduced drug consumption by Americans could possibly
8143 outweigh these costs.
8146 You may not be convinced. That's fine. We live in a democracy, and it
8147 is through votes that we are to choose policy. But to do that, we
8148 depend fundamentally upon the press to help inform Americans about
8152 Beginning in
1998, the Office of National Drug Control Policy launched
8153 a media campaign as part of the "war on drugs." The campaign produced
8154 scores of short film clips about issues related to illegal drugs. In
8155 one series (the Nick and Norm series) two men are in a bar, discussing
8156 the idea of legalizing drugs as a way to avoid some of the collateral
8157 damage from the war. One advances an argument in favor of drug
8158 legalization. The other responds in a powerful and effective way
8159 against the argument of the first. In the end, the first guy changes
8160 his mind (hey, it's television). The plug at the end is a damning
8161 attack on the pro-legalization campaign.
8164 Fair enough. It's a good ad. Not terribly misleading. It delivers its
8165 message well. It's a fair and reasonable message.
8168 But let's say you think it is a wrong message, and you'd like to run a
8169 countercommercial. Say you want to run a series of ads that try to
8170 demonstrate the extraordinary collateral harm that comes from the drug
8174 Well, obviously, these ads cost lots of money. Assume you raise the
8175 <!-- PAGE BREAK 179 -->
8176 money. Assume a group of concerned citizens donates all the money in
8177 the world to help you get your message out. Can you be sure your
8178 message will be heard then?
8181 No. You cannot. Television stations have a general policy of avoiding
8182 "controversial" ads. Ads sponsored by the government are deemed
8183 uncontroversial; ads disagreeing with the government are
8184 controversial. This selectivity might be thought inconsistent with
8185 the First Amendment, but the Supreme Court has held that stations have
8186 the right to choose what they run. Thus, the major channels of
8187 commercial media will refuse one side of a crucial debate the
8188 opportunity to present its case. And the courts will defend the
8189 rights of the stations to be this biased.
<footnote><para>
8191 The Marijuana Policy Project, in February
2003, sought to place ads
8192 that directly responded to the Nick and Norm series on stations within
8193 the Washington, D.C., area. Comcast rejected the ads as "against
8194 [their] policy." The local NBC affiliate, WRC, rejected the ads
8195 without reviewing them. The local ABC affiliate, WJOA, originally
8196 agreed to run the ads and accepted payment to do so, but later decided
8197 not to run the ads and returned the collected fees. Interview with
8198 Neal Levine,
15 October
2003. These restrictions are, of course, not
8199 limited to drug policy. See, for example, Nat Ives, "On the Issue of
8200 an Iraq War, Advocacy Ads Meet with Rejection from TV Networks,"
<citetitle>New
8201 York Times
</citetitle>,
13 March
2003, C4. Outside of election-related air time
8202 there is very little that the FCC or the courts are willing to do to
8203 even the playing field. For a general overview, see Rhonda Brown, "Ad
8204 Hoc Access: The Regulation of Editorial Advertising on Television and
8205 Radio,"
<citetitle>Yale Law and Policy Review
</citetitle> 6 (
1988):
449–79, and for a
8206 more recent summary of the stance of the FCC and the courts, see
8207 <citetitle>Radio-Television News Directors Association
</citetitle> v.
<citetitle>FCC
</citetitle>,
184 F.
3d
872
8208 (D.C. Cir.
1999). Municipal authorities exercise the same authority as
8209 the networks. In a recent example from San Francisco, the San
8210 Francisco transit authority rejected an ad that criticized its Muni
8211 diesel buses. Phillip Matier and Andrew Ross, "Antidiesel Group Fuming
8212 After Muni Rejects Ad," SFGate.com,
16 June
2003, available at
8213 <ulink url=
"http://free-culture.cc/notes/">link #
32</ulink>. The ground
8214 was that the criticism was "too controversial."
8215 <indexterm><primary>ABC
</primary></indexterm>
8216 <indexterm><primary>Comcast
</primary></indexterm>
8217 <indexterm><primary>Marijuana Policy Project
</primary></indexterm>
8218 <indexterm><primary>NBC
</primary></indexterm>
8219 <indexterm><primary>WJOA
</primary></indexterm>
8220 <indexterm><primary>WRC
</primary></indexterm>
8224 I'd be happy to defend the networks' rights, as well
—if we lived
8225 in a media market that was truly diverse. But concentration in the
8226 media throws that condition into doubt. If a handful of companies
8227 control access to the media, and that handful of companies gets to
8228 decide which political positions it will allow to be promoted on its
8229 channels, then in an obvious and important way, concentration
8230 matters. You might like the positions the handful of companies
8231 selects. But you should not like a world in which a mere few get to
8232 decide which issues the rest of us get to know about.
8235 <section id=
"together">
8236 <title>Together
</title>
8238 There is something innocent and obvious about the claim of the
8239 copyright warriors that the government should "protect my property."
8240 In the abstract, it is obviously true and, ordinarily, totally
8241 harmless. No sane sort who is not an anarchist could disagree.
8244 But when we see how dramatically this "property" has changed
—
8245 when we recognize how it might now interact with both technology and
8246 markets to mean that the effective constraint on the liberty to
8247 cultivate our culture is dramatically different
—the claim begins
8250 <!-- PAGE BREAK 180 -->
8251 less innocent and obvious. Given (
1) the power of technology to
8252 supplement the law's control, and (
2) the power of concentrated
8253 markets to weaken the opportunity for dissent, if strictly enforcing
8254 the massively expanded "property" rights granted by copyright
8255 fundamentally changes the freedom within this culture to cultivate and
8256 build upon our past, then we have to ask whether this property should
8260 Not starkly. Or absolutely. My point is not that we should abolish
8261 copyright or go back to the eighteenth century. That would be a total
8262 mistake, disastrous for the most important creative enterprises within
8266 But there is a space between zero and one, Internet culture
8267 notwithstanding. And these massive shifts in the effective power of
8268 copyright regulation, tied to increased concentration of the content
8269 industry and resting in the hands of technology that will increasingly
8270 enable control over the use of culture, should drive us to consider
8271 whether another adjustment is called for. Not an adjustment that
8272 increases copyright's power. Not an adjustment that increases its
8273 term. Rather, an adjustment to restore the balance that has
8274 traditionally defined copyright's regulation
—a weakening of that
8275 regulation, to strengthen creativity.
8278 Copyright law has not been a rock of Gibraltar. It's not a set of
8279 constant commitments that, for some mysterious reason, teenagers and
8280 geeks now flout. Instead, copyright power has grown dramatically in a
8281 short period of time, as the technologies of distribution and creation
8282 have changed and as lobbyists have pushed for more control by
8283 copyright holders. Changes in the past in response to changes in
8284 technology suggest that we may well need similar changes in the
8285 future. And these changes have to be
<emphasis>reductions
</emphasis>
8286 in the scope of copyright, in response to the extraordinary increase
8287 in control that technology and the market enable.
8290 For the single point that is lost in this war on pirates is a point that
8291 we see only after surveying the range of these changes. When you add
8292 <!-- PAGE BREAK 181 -->
8293 together the effect of changing law, concentrated markets, and
8294 changing technology, together they produce an astonishing conclusion:
8295 <emphasis>Never in our history have fewer had a legal right to control
8296 more of the development of our culture than now
</emphasis>.
8299 Not when copyrights were perpetual, for when copyrights were
8300 perpetual, they affected only that precise creative work. Not when
8301 only publishers had the tools to publish, for the market then was much
8302 more diverse. Not when there were only three television networks, for
8303 even then, newspapers, film studios, radio stations, and publishers
8304 were independent of the networks.
<emphasis>Never
</emphasis> has
8305 copyright protected such a wide range of rights, against as broad a
8306 range of actors, for a term that was remotely as long. This form of
8307 regulation
—a tiny regulation of a tiny part of the creative
8308 energy of a nation at the founding
—is now a massive regulation
8309 of the overall creative process. Law plus technology plus the market
8310 now interact to turn this historically benign regulation into the most
8311 significant regulation of culture that our free society has
8312 known.
<footnote><para>
8314 Siva Vaidhyanathan captures a similar point in his "four surrenders" of
8315 copyright law in the digital age. See Vaidhyanathan,
159–60.
8316 <indexterm><primary>Vaidhyanathan, Siva
</primary></indexterm>
8320 This has been a long chapter. Its point can now be briefly stated.
8323 At the start of this book, I distinguished between commercial and
8324 noncommercial culture. In the course of this chapter, I have
8325 distinguished between copying a work and transforming it. We can now
8326 combine these two distinctions and draw a clear map of the changes
8327 that copyright law has undergone. In
1790, the law looked like this:
8330 <informaltable id=
"t2">
8331 <tgroup cols=
"3" align=
"char">
8335 <entry>PUBLISH
</entry>
8336 <entry>TRANSFORM
</entry>
8341 <entry>Commercial
</entry>
8342 <entry>©</entry>
8346 <entry>Noncommercial
</entry>
8355 The act of publishing a map, chart, and book was regulated by
8356 copyright law. Nothing else was. Transformations were free. And as
8357 copyright attached only with registration, and only those who intended
8359 <!-- PAGE BREAK 182 -->
8360 to benefit commercially would register, copying through publishing of
8361 noncommercial work was also free.
8364 By the end of the nineteenth century, the law had changed to this:
8367 <informaltable id=
"t3">
8368 <tgroup cols=
"3" align=
"char">
8372 <entry>PUBLISH
</entry>
8373 <entry>TRANSFORM
</entry>
8378 <entry>Commercial
</entry>
8379 <entry>©</entry>
8380 <entry>©</entry>
8383 <entry>Noncommercial
</entry>
8392 Derivative works were now regulated by copyright law
—if
8393 published, which again, given the economics of publishing at the time,
8394 means if offered commercially. But noncommercial publishing and
8395 transformation were still essentially free.
8398 In
1909 the law changed to regulate copies, not publishing, and after
8399 this change, the scope of the law was tied to technology. As the
8400 technology of copying became more prevalent, the reach of the law
8401 expanded. Thus by
1975, as photocopying machines became more common,
8402 we could say the law began to look like this:
8405 <informaltable id=
"t4">
8406 <tgroup cols=
"3" align=
"char">
8411 <entry>TRANSFORM
</entry>
8416 <entry>Commercial
</entry>
8417 <entry>©</entry>
8418 <entry>©</entry>
8421 <entry>Noncommercial
</entry>
8422 <entry>©/Free
</entry>
8430 The law was interpreted to reach noncommercial copying through, say,
8431 copy machines, but still much of copying outside of the commercial
8432 market remained free. But the consequence of the emergence of digital
8433 technologies, especially in the context of a digital network, means
8434 that the law now looks like this:
8437 <informaltable id=
"t5">
8438 <tgroup cols=
"3" align=
"char">
8443 <entry>TRANSFORM
</entry>
8448 <entry>Commercial
</entry>
8449 <entry>©</entry>
8450 <entry>©</entry>
8453 <entry>Noncommercial
</entry>
8454 <entry>©</entry>
8455 <entry>©</entry>
8462 Every realm is governed by copyright law, whereas before most
8463 creativity was not. The law now regulates the full range of
8465 <!-- PAGE BREAK 183 -->
8466 commercial or not, transformative or not
—with the same rules
8467 designed to regulate commercial publishers.
8470 Obviously, copyright law is not the enemy. The enemy is regulation
8471 that does no good. So the question that we should be asking just now
8472 is whether extending the regulations of copyright law into each of
8473 these domains actually does any good.
8476 I have no doubt that it does good in regulating commercial copying.
8477 But I also have no doubt that it does more harm than good when
8478 regulating (as it regulates just now) noncommercial copying and,
8479 especially, noncommercial transformation. And increasingly, for the
8480 reasons sketched especially in chapters
8481 <xref xrefstyle=
"select: labelnumber" linkend=
"recorders"/> and
8482 <xref xrefstyle=
"select: labelnumber" linkend=
"transformers"/>, one
8483 might well wonder whether it does more harm than good for commercial
8484 transformation. More commercial transformative work would be created
8485 if derivative rights were more sharply restricted.
8488 The issue is therefore not simply whether copyright is property. Of
8489 course copyright is a kind of "property," and of course, as with any
8490 property, the state ought to protect it. But first impressions
8491 notwithstanding, historically, this property right (as with all
8492 property rights
<footnote><para>
8494 It was the single most important contribution of the legal realist
8495 movement to demonstrate that all property rights are always crafted to
8496 balance public and private interests. See Thomas C. Grey, "The
8497 Disintegration of Property," in
<citetitle>Nomos XXII: Property
</citetitle>, J. Roland
8498 Pennock and John W. Chapman, eds. (New York: New York University
8500 <indexterm><primary>legal realist movement
</primary></indexterm>
8502 has been crafted to balance the important need to give authors and
8503 artists incentives with the equally important need to assure access to
8504 creative work. This balance has always been struck in light of new
8505 technologies. And for almost half of our tradition, the "copyright"
8506 did not control
<emphasis>at all
</emphasis> the freedom of others to
8507 build upon or transform a creative work. American culture was born
8508 free, and for almost
180 years our country consistently protected a
8509 vibrant and rich free culture.
8512 We achieved that free culture because our law respected important
8513 limits on the scope of the interests protected by "property." The very
8514 birth of "copyright" as a statutory right recognized those limits, by
8515 granting copyright owners protection for a limited time only (the
8516 story of chapter
6). The tradition of "fair use" is animated by a
8517 similar concern that is increasingly under strain as the costs of
8518 exercising any fair use right become unavoidably high (the story of
8520 <!-- PAGE BREAK 184 -->
8521 statutory rights where markets might stifle innovation is another
8522 familiar limit on the property right that copyright is (chapter
8523 8). And granting archives and libraries a broad freedom to collect,
8524 claims of property notwithstanding, is a crucial part of guaranteeing
8525 the soul of a culture (chapter
9). Free cultures, like free markets,
8526 are built with property. But the nature of the property that builds a
8527 free culture is very different from the extremist vision that
8528 dominates the debate today.
8531 Free culture is increasingly the casualty in this war on piracy. In
8532 response to a real, if not yet quantified, threat that the
8533 technologies of the Internet present to twentieth-century business
8534 models for producing and distributing culture, the law and technology
8535 are being transformed in a way that will undermine our tradition of
8536 free culture. The property right that is copyright is no longer the
8537 balanced right that it was, or was intended to be. The property right
8538 that is copyright has become unbalanced, tilted toward an extreme. The
8539 opportunity to create and transform becomes weakened in a world in
8540 which creation requires permission and creativity must check with a
8543 <!-- PAGE BREAK 185 -->
8547 <part id=
"c-puzzles">
8548 <title>PUZZLES
</title>
8550 <!-- PAGE BREAK 186 -->
8551 <chapter label=
"11" id=
"chimera">
8552 <title>CHAPTER ELEVEN: Chimera
</title>
8553 <indexterm id=
"idxchimera" class='startofrange'
>
8554 <primary>chimeras
</primary>
8556 <indexterm id=
"idxwells" class='startofrange'
>
8557 <primary>Wells, H. G.
</primary>
8559 <indexterm id=
"idxtcotb" class='startofrange'
>
8560 <primary>"Country of the Blind, The
" (Wells)
</primary>
8564 In a well-known short story by H. G. Wells, a mountain climber
8565 named Nunez trips (literally, down an ice slope) into an unknown and
8566 isolated valley in the Peruvian Andes.
<footnote><para>
8568 H. G. Wells, "The Country of the Blind" (
1904,
1911). See H. G. Wells,
8569 <citetitle>The Country of the Blind and Other Stories
</citetitle>, Michael Sherborne, ed. (New
8570 York: Oxford University Press,
1996).
8572 The valley is extraordinarily beautiful, with "sweet water, pasture,
8573 an even climate, slopes of rich brown soil with tangles of a shrub
8574 that bore an excellent fruit." But the villagers are all blind. Nunez
8575 takes this as an opportunity. "In the Country of the Blind," he tells
8576 himself, "the One-Eyed Man is King." So he resolves to live with the
8577 villagers to explore life as a king.
8580 Things don't go quite as he planned. He tries to explain the idea of
8581 sight to the villagers. They don't understand. He tells them they are
8582 "blind." They don't have the word
<citetitle>blind
</citetitle>. They think he's just thick.
8583 Indeed, as they increasingly notice the things he can't do (hear the
8584 sound of grass being stepped on, for example), they increasingly try
8585 to control him. He, in turn, becomes increasingly frustrated. "`You
8586 don't understand,' he cried, in a voice that was meant to be great and
8587 resolute, and which broke. `You are blind and I can see. Leave me
8591 <!-- PAGE BREAK 187 -->
8592 The villagers don't leave him alone. Nor do they see (so to speak) the
8593 virtue of his special power. Not even the ultimate target of his
8594 affection, a young woman who to him seems "the most beautiful thing in
8595 the whole of creation," understands the beauty of sight. Nunez's
8596 description of what he sees "seemed to her the most poetical of
8597 fancies, and she listened to his description of the stars and the
8598 mountains and her own sweet white-lit beauty as though it was a guilty
8599 indulgence." "She did not believe," Wells tells us, and "she could
8600 only half understand, but she was mysteriously delighted."
8603 When Nunez announces his desire to marry his "mysteriously delighted"
8604 love, the father and the village object. "You see, my dear," her
8605 father instructs, "he's an idiot. He has delusions. He can't do
8606 anything right." They take Nunez to the village doctor.
8609 After a careful examination, the doctor gives his opinion. "His brain
8610 is affected," he reports.
8613 "What affects it?" the father asks. "Those queer things that are
8614 called the eyes
… are diseased
… in such a way as to affect
8618 The doctor continues: "I think I may say with reasonable certainty
8619 that in order to cure him completely, all that we need to do is a
8620 simple and easy surgical operation
—namely, to remove these
8621 irritant bodies [the eyes]."
8624 "Thank Heaven for science!" says the father to the doctor. They inform
8625 Nunez of this condition necessary for him to be allowed his bride.
8626 (You'll have to read the original to learn what happens in the end. I
8627 believe in free culture, but never in giving away the end of a story.)
8628 It sometimes happens that the eggs of twins fuse in the mother's
8629 womb. That fusion produces a "chimera." A chimera is a single creature
8630 with two sets of DNA. The DNA in the blood, for example, might be
8631 different from the DNA of the skin. This possibility is an underused
8633 <!-- PAGE BREAK 188 -->
8634 plot for murder mysteries. "But the DNA shows with
100 percent
8635 certainty that she was not the person whose blood was at the
8638 <indexterm startref=
"idxtcotb" class='endofrange'
/>
8639 <indexterm startref=
"idxwells" class=
"endofrange"/>
8641 Before I had read about chimeras, I would have said they were
8642 impossible. A single person can't have two sets of DNA. The very idea
8643 of DNA is that it is the code of an individual. Yet in fact, not only
8644 can two individuals have the same set of DNA (identical twins), but
8645 one person can have two different sets of DNA (a chimera). Our
8646 understanding of a "person" should reflect this reality.
8649 The more I work to understand the current struggle over copyright and
8650 culture, which I've sometimes called unfairly, and sometimes not
8651 unfairly enough, "the copyright wars," the more I think we're dealing
8652 with a chimera. For example, in the battle over the question "What is
8653 p2p file sharing?" both sides have it right, and both sides have it
8654 wrong. One side says, "File sharing is just like two kids taping each
8655 others' records
—the sort of thing we've been doing for the last
8656 thirty years without any question at all." That's true, at least in
8657 part. When I tell my best friend to try out a new CD that I've bought,
8658 but rather than just send the CD, I point him to my p2p server, that
8659 is, in all relevant respects, just like what every executive in every
8660 recording company no doubt did as a kid: sharing music.
8663 But the description is also false in part. For when my p2p server is
8664 on a p2p network through which anyone can get access to my music, then
8665 sure, my friends can get access, but it stretches the meaning of
8666 "friends" beyond recognition to say "my ten thousand best friends" can
8667 get access. Whether or not sharing my music with my best friend is
8668 what "we have always been allowed to do," we have not always been
8669 allowed to share music with "our ten thousand best friends."
8672 Likewise, when the other side says, "File sharing is just like walking
8673 into a Tower Records and taking a CD off the shelf and walking out
8674 with it," that's true, at least in part. If, after Lyle Lovett
8675 (finally) releases a new album, rather than buying it, I go to Kazaa
8676 and find a free copy to take, that is very much like stealing a copy
8678 <indexterm><primary>Lovett, Lyle
</primary></indexterm>
8682 <!-- PAGE BREAK 189 -->
8683 But it is not quite stealing from Tower. After all, when I take a CD
8684 from Tower Records, Tower has one less CD to sell. And when I take a
8685 CD from Tower Records, I get a bit of plastic and a cover, and
8686 something to show on my shelves. (And, while we're at it, we could
8687 also note that when I take a CD from Tower Records, the maximum fine
8688 that might be imposed on me, under California law, at least, is
8689 $
1,
000. According to the RIAA, by contrast, if I download a ten-song
8690 CD, I'm liable for $
1,
500,
000 in damages.)
8693 The point is not that it is as neither side describes. The point is
8694 that it is both
—both as the RIAA describes it and as Kazaa
8695 describes it. It is a chimera. And rather than simply denying what the
8696 other side asserts, we need to begin to think about how we should
8697 respond to this chimera. What rules should govern it?
8700 We could respond by simply pretending that it is not a chimera. We
8701 could, with the RIAA, decide that every act of file sharing should be
8702 a felony. We could prosecute families for millions of dollars in
8703 damages just because file sharing occurred on a family computer. And
8704 we can get universities to monitor all computer traffic to make sure
8705 that no computer is used to commit this crime. These responses might
8706 be extreme, but each of them has either been proposed or actually
8707 implemented.
<footnote><para>
8709 For an excellent summary, see the report prepared by GartnerG2 and the
8710 Berkman Center for Internet and Society at Harvard Law School,
8711 "Copyright and Digital Media in a Post-Napster World,"
27 June
2003,
8713 <ulink url=
"http://free-culture.cc/notes/">link
8714 #
33</ulink>. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
8715 (D-Calif.) have introduced a bill that would treat unauthorized
8716 on-line copying as a felony offense with punishments ranging as high
8717 as five years imprisonment; see Jon Healey, "House Bill Aims to Up
8718 Stakes on Piracy,"
<citetitle>Los Angeles Times
</citetitle>,
17 July
2003, available at
8719 <ulink url=
"http://free-culture.cc/notes/">link #
34</ulink>. Civil
8720 penalties are currently set at $
150,
000 per copied song. For a recent
8721 (and unsuccessful) legal challenge to the RIAA's demand that an ISP
8722 reveal the identity of a user accused of sharing more than
600 songs
8723 through a family computer, see
<citetitle>RIAA
</citetitle> v.
<citetitle>Verizon Internet Services (In
8724 re. Verizon Internet Services)
</citetitle>,
240 F. Supp.
2d
24
8725 (D.D.C.
2003). Such a user could face liability ranging as high as $
90
8726 million. Such astronomical figures furnish the RIAA with a powerful
8727 arsenal in its prosecution of file sharers. Settlements ranging from
8728 $
12,
000 to $
17,
500 for four students accused of heavy file sharing on
8729 university networks must have seemed a mere pittance next to the $
98
8730 billion the RIAA could seek should the matter proceed to court. See
8731 Elizabeth Young, "Downloading Could Lead to Fines," redandblack.com,
8732 August
2003, available at
8733 <ulink url=
"http://free-culture.cc/notes/">link #
35</ulink>. For an
8734 example of the RIAA's targeting of student file sharing, and of the
8735 subpoenas issued to universities to reveal student file-sharer
8736 identities, see James Collins, "RIAA Steps Up Bid to Force BC, MIT to
8737 Name Students,"
<citetitle>Boston Globe
</citetitle>,
8 August
2003, D3, available at
8738 <ulink url=
"http://free-culture.cc/notes/">link #
36</ulink>.
8739 <indexterm><primary>Conyers, John, Jr.
</primary></indexterm>
8740 <indexterm><primary>Berman, Howard L.
</primary></indexterm>
8744 <indexterm startref=
"idxchimera" class='endofrange'
/>
8746 Alternatively, we could respond to file sharing the way many kids act
8747 as though we've responded. We could totally legalize it. Let there be
8748 no copyright liability, either civil or criminal, for making
8749 copyrighted content available on the Net. Make file sharing like
8750 gossip: regulated, if at all, by social norms but not by law.
8753 Either response is possible. I think either would be a mistake.
8754 Rather than embrace one of these two extremes, we should embrace
8755 something that recognizes the truth in both. And while I end this book
8756 with a sketch of a system that does just that, my aim in the next
8757 chapter is to show just how awful it would be for us to adopt the
8758 zero-tolerance extreme. I believe
<emphasis>either
</emphasis> extreme
8759 would be worse than a reasonable alternative. But I believe the
8760 zero-tolerance solution would be the worse of the two extremes.
8764 <!-- PAGE BREAK 190 -->
8765 Yet zero tolerance is increasingly our government's policy. In the
8766 middle of the chaos that the Internet has created, an extraordinary
8767 land grab is occurring. The law and technology are being shifted to
8768 give content holders a kind of control over our culture that they have
8769 never had before. And in this extremism, many an opportunity for new
8770 innovation and new creativity will be lost.
8773 I'm not talking about the opportunities for kids to "steal" music. My
8774 focus instead is the commercial and cultural innovation that this war
8775 will also kill. We have never seen the power to innovate spread so
8776 broadly among our citizens, and we have just begun to see the
8777 innovation that this power will unleash. Yet the Internet has already
8778 seen the passing of one cycle of innovation around technologies to
8779 distribute content. The law is responsible for this passing. As the
8780 vice president for global public policy at one of these new
8781 innovators, eMusic.com, put it when criticizing the DMCA's added
8782 protection for copyrighted material,
8786 eMusic opposes music piracy. We are a distributor of copyrighted
8787 material, and we want to protect those rights.
8790 But building a technology fortress that locks in the clout of the
8791 major labels is by no means the only way to protect copyright
8792 interests, nor is it necessarily the best. It is simply too early to
8793 answer that question. Market forces operating naturally may very well
8794 produce a totally different industry model.
8797 This is a critical point. The choices that industry sectors make
8798 with respect to these systems will in many ways directly shape the
8799 market for digital media and the manner in which digital media
8800 are distributed. This in turn will directly influence the options
8801 that are available to consumers, both in terms of the ease with
8802 which they will be able to access digital media and the equipment
8803 that they will require to do so. Poor choices made this early in the
8804 game will retard the growth of this market, hurting everyone's
8805 interests.
<footnote><para>
8807 WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital
8808 Entertainment on the Internet and Other Media: Hearing Before the
8809 Subcommittee on Telecommunications, Trade, and Consumer Protection,
8810 House Committee on Commerce,
106th Cong.
29 (
1999) (statement of Peter
8811 Harter, vice president, Global Public Policy and Standards,
8812 EMusic.com), available in LEXIS, Federal Document Clearing House
8813 Congressional Testimony File.
</para></footnote>
8816 <!-- PAGE BREAK 191 -->
8818 In April
2001, eMusic.com was purchased by Vivendi Universal,
8819 one of "the major labels." Its position on these matters has now
8821 <indexterm><primary>Vivendi Universal
</primary></indexterm>
8824 Reversing our tradition of tolerance now will not merely quash
8825 piracy. It will sacrifice values that are important to this culture,
8826 and will kill opportunities that could be extraordinarily valuable.
8829 <!-- PAGE BREAK 192 -->
8831 <chapter label=
"12" id=
"harms">
8832 <title>CHAPTER TWELVE: Harms
</title>
8834 To fight "piracy," to protect "property," the content industry has
8835 launched a war. Lobbying and lots of campaign contributions have now
8836 brought the government into this war. As with any war, this one will
8837 have both direct and collateral damage. As with any war of
8838 prohibition, these damages will be suffered most by our own people.
8841 My aim so far has been to describe the consequences of this war, in
8842 particular, the consequences for "free culture." But my aim now is to
8843 extend this description of consequences into an argument. Is this war
8847 In my view, it is not. There is no good reason why this time, for the
8848 first time, the law should defend the old against the new, just when the
8849 power of the property called "intellectual property" is at its greatest in
8852 <indexterm><primary>Causby, Thomas Lee
</primary></indexterm>
8853 <indexterm><primary>Causby, Tinie
</primary></indexterm>
8855 Yet "common sense" does not see it this way. Common sense is still on
8856 the side of the Causbys and the content industry. The extreme claims
8857 of control in the name of property still resonate; the uncritical
8858 rejection of "piracy" still has play.
8861 <!-- PAGE BREAK 193 -->
8862 There will be many consequences of continuing this war. I want to
8863 describe just three. All three might be said to be unintended. I am quite
8864 confident the third is unintended. I'm less sure about the first two. The
8865 first two protect modern RCAs, but there is no Howard Armstrong in
8866 the wings to fight today's monopolists of culture.
8868 <section id=
"constrain">
8869 <title>Constraining Creators
</title>
8871 In the next ten years we will see an explosion of digital
8872 technologies. These technologies will enable almost anyone to capture
8873 and share content. Capturing and sharing content, of course, is what
8874 humans have done since the dawn of man. It is how we learn and
8875 communicate. But capturing and sharing through digital technology is
8876 different. The fidelity and power are different. You could send an
8877 e-mail telling someone about a joke you saw on Comedy Central, or you
8878 could send the clip. You could write an essay about the
8879 inconsistencies in the arguments of the politician you most love to
8880 hate, or you could make a short film that puts statement against
8881 statement. You could write a poem to express your love, or you could
8882 weave together a string
—a mash-up
— of songs from your
8883 favorite artists in a collage and make it available on the Net.
8886 This digital "capturing and sharing" is in part an extension of the
8887 capturing and sharing that has always been integral to our culture,
8888 and in part it is something new. It is continuous with the Kodak, but
8889 it explodes the boundaries of Kodak-like technologies. The technology
8890 of digital "capturing and sharing" promises a world of extraordinarily
8891 diverse creativity that can be easily and broadly shared. And as that
8892 creativity is applied to democracy, it will enable a broad range of
8893 citizens to use technology to express and criticize and contribute to
8894 the culture all around.
8897 Technology has thus given us an opportunity to do something with
8898 culture that has only ever been possible for individuals in small groups,
8900 <!-- PAGE BREAK 194 -->
8902 isolated from others. Think about an old man telling a story to a
8903 collection of neighbors in a small town. Now imagine that same
8904 storytelling extended across the globe.
8907 Yet all this is possible only if the activity is presumptively legal. In
8908 the current regime of legal regulation, it is not. Forget file sharing for
8909 a moment. Think about your favorite amazing sites on the Net. Web
8910 sites that offer plot summaries from forgotten television shows; sites
8911 that catalog cartoons from the
1960s; sites that mix images and sound
8912 to criticize politicians or businesses; sites that gather newspaper articles
8913 on remote topics of science or culture. There is a vast amount of creative
8914 work spread across the Internet. But as the law is currently crafted, this
8915 work is presumptively illegal.
8918 That presumption will increasingly chill creativity, as the
8919 examples of extreme penalties for vague infringements continue to
8920 proliferate. It is impossible to get a clear sense of what's allowed
8921 and what's not, and at the same time, the penalties for crossing the
8922 line are astonishingly harsh. The four students who were threatened
8923 by the RIAA ( Jesse Jordan of chapter
3 was just one) were threatened
8924 with a $
98 billion lawsuit for building search engines that permitted
8925 songs to be copied. Yet World-Com
—which defrauded investors of
8926 $
11 billion, resulting in a loss to investors in market capitalization
8927 of over $
200 billion
—received a fine of a mere $
750
8928 million.
<footnote><para>
8930 See Lynne W. Jeter,
<citetitle>Disconnected: Deceit and Betrayal at WorldCom
</citetitle>
8931 (Hoboken, N.J.: John Wiley
& Sons,
2003),
176,
204; for details of
8932 the settlement, see MCI press release, "MCI Wins U.S. District Court
8933 Approval for SEC Settlement" (
7 July
2003), available at
8934 <ulink url=
"http://free-culture.cc/notes/">link #
37</ulink>.
8935 <indexterm><primary>Worldcom
</primary></indexterm>
8937 And under legislation being pushed in Congress right now, a doctor who
8938 negligently removes the wrong leg in an operation would be liable for
8939 no more than $
250,
000 in damages for pain and
8940 suffering.
<footnote>
8942 <!-- f2. --> The bill, modeled after California's tort reform model, was passed in the
8943 House of Representatives but defeated in a Senate vote in July
2003. For
8944 an overview, see Tanya Albert, "Measure Stalls in Senate: `We'll Be Back,'
8945 Say Tort Reformers," amednews.com,
28 July
2003, available at
8946 <ulink url=
"http://free-culture.cc/notes/">link #
38</ulink>,
8947 and "Senate Turns Back Malpractice Caps," CBSNews.com,
9 July
2003,
8949 <ulink url=
"http://free-culture.cc/notes/">link #
39</ulink>. President Bush has continued to urge tort reform in
8951 <indexterm><primary>Bush, George W.
</primary></indexterm>
8953 Can common sense recognize the absurdity in a world where
8954 the maximum fine for downloading two songs off the Internet is more
8955 than the fine for a doctor's negligently butchering a patient?
8956 <indexterm><primary>Worldcom
</primary></indexterm>
8959 The consequence of this legal uncertainty, tied to these extremely
8960 high penalties, is that an extraordinary amount of creativity will
8961 either never be exercised, or never be exercised in the open. We drive
8962 this creative process underground by branding the modern-day Walt
8963 Disneys "pirates." We make it impossible for businesses to rely upon a
8964 public domain, because the boundaries of the public domain are
8967 <!-- PAGE BREAK 195 -->
8968 be unclear. It never pays to do anything except pay for the right
8969 to create, and hence only those who can pay are allowed to create. As
8970 was the case in the Soviet Union, though for very different reasons,
8971 we will begin to see a world of underground art
—not because the
8972 message is necessarily political, or because the subject is
8973 controversial, but because the very act of creating the art is legally
8974 fraught. Already, exhibits of "illegal art" tour the United
8975 States.
<footnote><para>
8978 See Danit Lidor, "Artists Just Wanna Be Free,"
<citetitle>Wired
</citetitle>,
7 July
8980 <ulink url=
"http://free-culture.cc/notes/">link #
40</ulink>. For an overview of the exhibition, see
8981 <ulink url=
"http://free-culture.cc/notes/">link #
41</ulink>.
8983 In what does their "illegality" consist?
8984 In the act of mixing the culture around us with an expression that is
8985 critical or reflective.
8988 Part of the reason for this fear of illegality has to do with the
8989 changing law. I described that change in detail in chapter
8990 <xref xrefstyle=
"select: labelnumber" linkend=
"property-i"/>. But an
8991 even bigger part has to do with the increasing ease with which
8992 infractions can be tracked. As users of file-sharing systems
8993 discovered in
2002, it is a trivial matter for copyright owners to get
8994 courts to order Internet service providers to reveal who has what
8995 content. It is as if your cassette tape player transmitted a list of
8996 the songs that you played in the privacy of your own home that anyone
8997 could tune into for whatever reason they chose.
9000 Never in our history has a painter had to worry about whether
9001 his painting infringed on someone else's work; but the modern-day
9002 painter, using the tools of Photoshop, sharing content on the Web,
9003 must worry all the time. Images are all around, but the only safe images
9004 to use in the act of creation are those purchased from Corbis or another
9005 image farm. And in purchasing, censoring happens. There is a free
9006 market in pencils; we needn't worry about its effect on creativity. But
9007 there is a highly regulated, monopolized market in cultural icons; the
9008 right to cultivate and transform them is not similarly free.
9011 Lawyers rarely see this because lawyers are rarely empirical. As I
9012 described in chapter
9013 <xref xrefstyle=
"select: labelnumber" linkend=
"recorders"/>, in
9014 response to the story about documentary filmmaker Jon Else, I have
9015 been lectured again and again by lawyers who insist Else's use was
9016 fair use, and hence I am wrong to say that the law regulates such a
9021 <!-- PAGE BREAK 196 -->
9022 But fair use in America simply means the right to hire a lawyer to
9023 defend your right to create. And as lawyers love to forget, our system
9024 for defending rights such as fair use is astonishingly bad
—in
9025 practically every context, but especially here. It costs too much, it
9026 delivers too slowly, and what it delivers often has little connection
9027 to the justice underlying the claim. The legal system may be tolerable
9028 for the very rich. For everyone else, it is an embarrassment to a
9029 tradition that prides itself on the rule of law.
9032 Judges and lawyers can tell themselves that fair use provides adequate
9033 "breathing room" between regulation by the law and the access the law
9034 should allow. But it is a measure of how out of touch our legal system
9035 has become that anyone actually believes this. The rules that
9036 publishers impose upon writers, the rules that film distributors
9037 impose upon filmmakers, the rules that newspapers impose upon
9038 journalists
— these are the real laws governing creativity. And
9039 these rules have little relationship to the "law" with which judges
9043 For in a world that threatens $
150,
000 for a single willful
9044 infringement of a copyright, and which demands tens of thousands of
9045 dollars to even defend against a copyright infringement claim, and
9046 which would never return to the wrongfully accused defendant anything
9047 of the costs she suffered to defend her right to speak
—in that
9048 world, the astonishingly broad regulations that pass under the name
9049 "copyright" silence speech and creativity. And in that world, it takes
9050 a studied blindness for people to continue to believe they live in a
9051 culture that is free.
9054 As Jed Horovitz, the businessman behind Video Pipeline, said to me,
9058 We're losing [creative] opportunities right and left. Creative people
9059 are being forced not to express themselves. Thoughts are not being
9060 expressed. And while a lot of stuff may [still] be created, it still
9061 won't get distributed. Even if the stuff gets made
… you're not
9062 going to get it distributed in the mainstream media unless
9063 <!-- PAGE BREAK 197 -->
9064 you've got a little note from a lawyer saying, "This has been
9065 cleared." You're not even going to get it on PBS without that kind of
9066 permission. That's the point at which they control it.
9070 <section id=
"innovators">
9071 <title>Constraining Innovators
</title>
9073 The story of the last section was a crunchy-lefty
9074 story
—creativity quashed, artists who can't speak, yada yada
9075 yada. Maybe that doesn't get you going. Maybe you think there's enough
9076 weird art out there, and enough expression that is critical of what
9077 seems to be just about everything. And if you think that, you might
9078 think there's little in this story to worry you.
9081 But there's an aspect of this story that is not lefty in any sense.
9082 Indeed, it is an aspect that could be written by the most extreme
9083 promarket ideologue. And if you're one of these sorts (and a special
9084 one at that,
188 pages into a book like this), then you can see this
9085 other aspect by substituting "free market" every place I've spoken of
9086 "free culture." The point is the same, even if the interests
9087 affecting culture are more fundamental.
9090 The charge I've been making about the regulation of culture is the
9091 same charge free marketers make about regulating markets. Everyone, of
9092 course, concedes that some regulation of markets is necessary
—at
9093 a minimum, we need rules of property and contract, and courts to
9094 enforce both. Likewise, in this culture debate, everyone concedes that
9095 at least some framework of copyright is also required. But both
9096 perspectives vehemently insist that just because some regulation is
9097 good, it doesn't follow that more regulation is better. And both
9098 perspectives are constantly attuned to the ways in which regulation
9099 simply enables the powerful industries of today to protect themselves
9100 against the competitors of tomorrow.
9102 <indexterm><primary>Barry, Hank
</primary></indexterm>
9104 This is the single most dramatic effect of the shift in regulatory
9105 <!-- PAGE BREAK 198 -->
9106 strategy that I described in chapter
<xref xrefstyle=
"select:
9107 labelnumber" linkend=
"property-i"/>. The consequence of this massive
9108 threat of liability tied to the murky boundaries of copyright law is
9109 that innovators who want to innovate in this space can safely innovate
9110 only if they have the sign-off from last generation's dominant
9111 industries. That lesson has been taught through a series of cases
9112 that were designed and executed to teach venture capitalists a
9113 lesson. That lesson
—what former Napster CEO Hank Barry calls a
9114 "nuclear pall" that has fallen over the Valley
—has been learned.
9117 Consider one example to make the point, a story whose beginning
9118 I told in
<citetitle>The Future of Ideas
</citetitle> and which has progressed in a way that
9119 even I (pessimist extraordinaire) would never have predicted.
9121 <indexterm><primary>Roberts, Michael
</primary></indexterm>
9123 In
1997, Michael Roberts launched a company called MP3.com. MP3.com
9124 was keen to remake the music business. Their goal was not just to
9125 facilitate new ways to get access to content. Their goal was also to
9126 facilitate new ways to create content. Unlike the major labels,
9127 MP3.com offered creators a venue to distribute their creativity,
9128 without demanding an exclusive engagement from the creators.
9131 To make this system work, however, MP3.com needed a reliable way to
9132 recommend music to its users. The idea behind this alternative was to
9133 leverage the revealed preferences of music listeners to recommend new
9134 artists. If you like Lyle Lovett, you're likely to enjoy Bonnie
9136 <indexterm><primary>Lovett, Lyle
</primary></indexterm>
9139 This idea required a simple way to gather data about user preferences.
9140 MP3.com came up with an extraordinarily clever way to gather this
9141 preference data. In January
2000, the company launched a service
9142 called my.mp3.com. Using software provided by MP3.com, a user would
9143 sign into an account and then insert into her computer a CD. The
9144 software would identify the CD, and then give the user access to that
9145 content. So, for example, if you inserted a CD by Jill Sobule, then
9146 wherever you were
—at work or at home
—you could get access
9147 to that music once you signed into your account. The system was
9148 therefore a kind of music-lockbox.
9151 No doubt some could use this system to illegally copy content. But
9152 that opportunity existed with or without MP3.com. The aim of the
9154 <!-- PAGE BREAK 199 -->
9155 my.mp3.com service was to give users access to their own content, and
9156 as a by-product, by seeing the content they already owned, to discover
9157 the kind of content the users liked.
9160 To make this system function, however, MP3.com needed to copy
50,
000
9161 CDs to a server. (In principle, it could have been the user who
9162 uploaded the music, but that would have taken a great deal of time,
9163 and would have produced a product of questionable quality.) It
9164 therefore purchased
50,
000 CDs from a store, and started the process
9165 of making copies of those CDs. Again, it would not serve the content
9166 from those copies to anyone except those who authenticated that they
9167 had a copy of the CD they wanted to access. So while this was
50,
000
9168 copies, it was
50,
000 copies directed at giving customers something
9169 they had already bought.
9171 <indexterm id=
"idxvivendiuniversal" class='startofrange'
>
9172 <primary>Vivendi Universal
</primary>
9175 Nine days after MP3.com launched its service, the five major labels,
9176 headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled
9177 with four of the five. Nine months later, a federal judge found
9178 MP3.com to have been guilty of willful infringement with respect to
9179 the fifth. Applying the law as it is, the judge imposed a fine against
9180 MP3.com of $
118 million. MP3.com then settled with the remaining
9181 plaintiff, Vivendi Universal, paying over $
54 million. Vivendi
9182 purchased MP3.com just about a year later.
9185 That part of the story I have told before. Now consider its conclusion.
9188 After Vivendi purchased MP3.com, Vivendi turned around and filed a
9189 malpractice lawsuit against the lawyers who had advised it that they
9190 had a good faith claim that the service they wanted to offer would be
9191 considered legal under copyright law. This lawsuit alleged that it
9192 should have been obvious that the courts would find this behavior
9193 illegal; therefore, this lawsuit sought to punish any lawyer who had
9194 dared to suggest that the law was less restrictive than the labels
9198 The clear purpose of this lawsuit (which was settled for an
9199 unspecified amount shortly after the story was no longer covered in
9200 the press) was to send an unequivocal message to lawyers advising
9202 <!-- PAGE BREAK 200 -->
9203 space: It is not just your clients who might suffer if the content
9204 industry directs its guns against them. It is also you. So those of
9205 you who believe the law should be less restrictive should realize that
9206 such a view of the law will cost you and your firm dearly.
9208 <indexterm startref=
"idxvivendiuniversal" class='endofrange'
/>
9209 <indexterm><primary>Hummer, John
</primary></indexterm>
9210 <indexterm><primary>Barry, Hank
</primary></indexterm>
9211 <indexterm><primary>Hummer Winblad
</primary></indexterm>
9213 This strategy is not just limited to the lawyers. In April
2003,
9214 Universal and EMI brought a lawsuit against Hummer Winblad, the
9215 venture capital firm (VC) that had funded Napster at a certain stage of
9216 its development, its cofounder ( John Hummer), and general partner
9217 (Hank Barry).
<footnote><para>
9219 See Joseph Menn, "Universal, EMI Sue Napster Investor,"
<citetitle>Los Angeles
9220 Times
</citetitle>,
23 April
2003. For a parallel argument about the effects on
9221 innovation in the distribution of music, see Janelle Brown, "The Music
9222 Revolution Will Not Be Digitized," Salon.com,
1 June
2001, available
9223 at
<ulink url=
"http://free-culture.cc/notes/">link #
42</ulink>.
9224 See also Jon Healey, "Online Music Services Besieged,"
<citetitle>Los Angeles
9225 Times
</citetitle>,
28 May
2001.
9227 The claim here, as well, was that the VC should have recognized the
9228 right of the content industry to control how the industry should
9229 develop. They should be held personally liable for funding a company
9230 whose business turned out to be beyond the law. Here again, the aim of
9231 the lawsuit is transparent: Any VC now recognizes that if you fund a
9232 company whose business is not approved of by the dinosaurs, you are at
9233 risk not just in the marketplace, but in the courtroom as well. Your
9234 investment buys you not only a company, it also buys you a lawsuit.
9235 So extreme has the environment become that even car manufacturers are
9236 afraid of technologies that touch content. In an article in
9237 <citetitle>Business
2.0</citetitle>, Rafe Needleman describes a
9238 discussion with BMW:
9239 <indexterm><primary>EMI
</primary></indexterm>
9240 <indexterm><primary>Universal Music Group
</primary></indexterm>
9243 <indexterm><primary>BMW
</primary></indexterm>
9245 I asked why, with all the storage capacity and computer power in
9246 the car, there was no way to play MP3 files. I was told that BMW
9247 engineers in Germany had rigged a new vehicle to play MP3s via
9248 the car's built-in sound system, but that the company's marketing
9249 and legal departments weren't comfortable with pushing this
9250 forward for release stateside. Even today, no new cars are sold in the
9251 United States with bona fide MP3 players.
… <footnote>
9254 Rafe Needleman, "Driving in Cars with MP3s,"
<citetitle>Business
2.0</citetitle>,
16 June
9256 <ulink url=
"http://free-culture.cc/notes/">link #
43</ulink>. I am grateful
9257 to Dr. Mohammad Al-Ubaydli for this example.
9258 <indexterm><primary>Needleman, Rafe
</primary></indexterm>
9263 This is the world of the mafia
—filled with "your money or your
9264 life" offers, governed in the end not by courts but by the threats
9265 that the law empowers copyright holders to exercise. It is a system
9266 that will obviously and necessarily stifle new innovation. It is hard
9267 enough to start a company. It is impossibly hard if that company is
9268 constantly threatened by litigation.
9272 <!-- PAGE BREAK 201 -->
9273 The point is not that businesses should have a right to start illegal
9274 enterprises. The point is the definition of "illegal." The law is a
9275 mess of uncertainty. We have no good way to know how it should apply
9276 to new technologies. Yet by reversing our tradition of judicial
9277 deference, and by embracing the astonishingly high penalties that
9278 copyright law imposes, that uncertainty now yields a reality which is
9279 far more conservative than is right. If the law imposed the death
9280 penalty for parking tickets, we'd not only have fewer parking tickets,
9281 we'd also have much less driving. The same principle applies to
9282 innovation. If innovation is constantly checked by this uncertain and
9283 unlimited liability, we will have much less vibrant innovation and
9284 much less creativity.
9287 The point is directly parallel to the crunchy-lefty point about fair
9288 use. Whatever the "real" law is, realism about the effect of law in
9289 both contexts is the same. This wildly punitive system of regulation
9290 will systematically stifle creativity and innovation. It will protect
9291 some industries and some creators, but it will harm industry and
9292 creativity generally. Free market and free culture depend upon vibrant
9293 competition. Yet the effect of the law today is to stifle just this
9294 kind of competition. The effect is to produce an overregulated
9295 culture, just as the effect of too much control in the market is to
9296 produce an overregulatedregulated market.
9299 The building of a permission culture, rather than a free culture, is
9300 the first important way in which the changes I have described will
9301 burden innovation. A permission culture means a lawyer's
9302 culture
—a culture in which the ability to create requires a call
9303 to your lawyer. Again, I am not antilawyer, at least when they're kept
9304 in their proper place. I am certainly not antilaw. But our profession
9305 has lost the sense of its limits. And leaders in our profession have
9306 lost an appreciation of the high costs that our profession imposes
9307 upon others. The inefficiency of the law is an embarrassment to our
9308 tradition. And while I believe our profession should therefore do
9309 everything it can to make the law more efficient, it should at least
9310 do everything it can to limit the reach of the
9311 <!-- PAGE BREAK 202 -->
9312 law where the law is not doing any good. The transaction costs buried
9313 within a permission culture are enough to bury a wide range of
9314 creativity. Someone needs to do a lot of justifying to justify that
9315 result. The uncertainty of the law is one burden on innovation. There
9316 is a second burden that operates more directly. This is the effort by
9317 many in the content industry to use the law to directly regulate the
9318 technology of the Internet so that it better protects their content.
9321 The motivation for this response is obvious. The Internet enables the
9322 efficient spread of content. That efficiency is a feature of the
9323 Internet's design. But from the perspective of the content industry,
9324 this feature is a "bug." The efficient spread of content means that
9325 content distributors have a harder time controlling the distribution
9326 of content. One obvious response to this efficiency is thus to make
9327 the Internet less efficient. If the Internet enables "piracy," then,
9328 this response says, we should break the kneecaps of the Internet.
9331 The examples of this form of legislation are many. At the urging of
9332 the content industry, some in Congress have threatened legislation that
9333 would require computers to determine whether the content they access
9334 is protected or not, and to disable the spread of protected content.
<footnote><para>
9335 <!-- f6. --> "Copyright and Digital Media in a Post-Napster World," GartnerG2 and
9336 the Berkman Center for Internet and Society at Harvard Law School
9337 (
2003),
33–35, available at
9338 <ulink url=
"http://free-culture.cc/notes/">link #
44</ulink>.
9340 Congress has already launched proceedings to explore a mandatory
9341 "broadcast flag" that would be required on any device capable of
9342 transmitting digital video (i.e., a computer), and that would disable
9343 the copying of any content that is marked with a broadcast flag. Other
9344 members of Congress have proposed immunizing content providers from
9345 liability for technology they might deploy that would hunt down
9346 copyright violators and disable their machines.
<footnote><para>
9348 GartnerG2,
26–27.
9352 In one sense, these solutions seem sensible. If the problem is the
9353 code, why not regulate the code to remove the problem. But any
9354 regulation of technical infrastructure will always be tuned to the
9355 particular technology of the day. It will impose significant burdens
9357 <!-- PAGE BREAK 203 -->
9358 the technology, but will likely be eclipsed by advances around exactly
9362 In March
2002, a broad coalition of technology companies, led by
9363 Intel, tried to get Congress to see the harm that such legislation
9364 would impose.
<footnote><para>
9366 See David McGuire, "Tech Execs Square Off Over Piracy," Newsbytes,
9367 February
2002 (Entertainment).
9369 Their argument was obviously not that copyright should not be
9370 protected. Instead, they argued, any protection should not do more
9372 <indexterm><primary>Intel
</primary></indexterm>
9375 There is one more obvious way in which this war has harmed
9376 innovation
—again, a story that will be quite familiar to the
9380 Copyright may be property, but like all property, it is also a form
9381 of regulation. It is a regulation that benefits some and harms others.
9382 When done right, it benefits creators and harms leeches. When done
9383 wrong, it is regulation the powerful use to defeat competitors.
9386 As I described in chapter
<xref xrefstyle=
"select: labelnumber"
9387 linkend=
"property-i"/>, despite this feature of copyright as
9388 regulation, and subject to important qualifications outlined by
9389 Jessica Litman in her book
<citetitle>Digital
9390 Copyright
</citetitle>,
<footnote><para>
9392 Jessica Litman,
<citetitle>Digital Copyright
</citetitle> (Amherst,
9393 N.Y.: Prometheus Books,
2001).
9394 <indexterm><primary>Litman, Jessica
</primary></indexterm>
9396 overall this history of copyright is not bad. As chapter
10 details,
9397 when new technologies have come along, Congress has struck a balance
9398 to assure that the new is protected from the old. Compulsory, or
9399 statutory, licenses have been one part of that strategy. Free use (as
9400 in the case of the VCR) has been another.
9403 But that pattern of deference to new technologies has now changed
9404 with the rise of the Internet. Rather than striking a balance between
9405 the claims of a new technology and the legitimate rights of content
9406 creators, both the courts and Congress have imposed legal restrictions
9407 that will have the effect of smothering the new to benefit the old.
9410 The response by the courts has been fairly universal.
<footnote><para>
9412 The only circuit court exception is found in
<citetitle>Recording Industry
9413 Association of America (RIAA)
</citetitle> v.
<citetitle>Diamond Multimedia Systems
</citetitle>,
180 F.
3d
9414 1072 (
9th Cir.
1999). There the court of appeals for the Ninth Circuit
9415 reasoned that makers of a portable MP3 player were not liable for
9416 contributory copyright infringement for a device that is unable to
9417 record or redistribute music (a device whose only copying function is
9418 to render portable a music file already stored on a user's hard
9419 drive). At the district court level, the only exception is found in
9420 <citetitle>Metro-Goldwyn-Mayer Studios, Inc
</citetitle>. v.
<citetitle>Grokster, Ltd
</citetitle>.,
259 F. Supp.
2d
9421 1029 (C.D. Cal.,
2003), where the court found the link between the
9422 distributor and any given user's conduct too attenuated to make the
9423 distributor liable for contributory or vicarious infringement
9426 It has been mirrored in the responses threatened and actually
9427 implemented by Congress. I won't catalog all of those responses
9428 here.
<footnote><para>
9430 For example, in July
2002, Representative Howard Berman introduced the
9431 Peer-to-Peer Piracy Prevention Act (H.R.
5211), which would immunize
9432 copyright holders from liability for damage done to computers when the
9433 copyright holders use technology to stop copyright infringement. In
9434 August
2002, Representative Billy Tauzin introduced a bill to mandate
9435 that technologies capable of rebroadcasting digital copies of films
9436 broadcast on TV (i.e., computers) respect a "broadcast flag" that
9437 would disable copying of that content. And in March of the same year,
9438 Senator Fritz Hollings introduced the Consumer Broadband and Digital
9439 Television Promotion Act, which mandated copyright protection
9440 technology in all digital media devices. See GartnerG2, "Copyright and
9441 Digital Media in a Post-Napster World,"
27 June
2003,
33–34,
9443 <ulink url=
"http://free-culture.cc/notes/">link #
44</ulink>.
9444 <indexterm><primary>Berman, Howard L.
</primary></indexterm>
9445 <indexterm><primary>Hollings, Fritz
</primary></indexterm>
9447 But there is one example that captures the flavor of them all. This is
9448 the story of the demise of Internet radio.
9452 <!-- PAGE BREAK 204 -->
9453 As I described in chapter
<xref xrefstyle=
"select: labelnumber"
9454 linkend=
"pirates"/>, when a radio station plays a song, the recording
9455 artist doesn't get paid for that "radio performance" unless he or she
9456 is also the composer. So, for example if Marilyn Monroe had recorded a
9457 version of "Happy Birthday"
—to memorialize her famous
9458 performance before President Kennedy at Madison Square Garden
—
9459 then whenever that recording was played on the radio, the current
9460 copyright owners of "Happy Birthday" would get some money, whereas
9461 Marilyn Monroe would not.
9462 <indexterm><primary>Kennedy, John F.
</primary></indexterm>
9465 The reasoning behind this balance struck by Congress makes some
9466 sense. The justification was that radio was a kind of advertising. The
9467 recording artist thus benefited because by playing her music, the
9468 radio station was making it more likely that her records would be
9469 purchased. Thus, the recording artist got something, even if only
9470 indirectly. Probably this reasoning had less to do with the result
9471 than with the power of radio stations: Their lobbyists were quite good
9472 at stopping any efforts to get Congress to require compensation to the
9476 Enter Internet radio. Like regular radio, Internet radio is a
9477 technology to stream content from a broadcaster to a listener. The
9478 broadcast travels across the Internet, not across the ether of radio
9479 spectrum. Thus, I can "tune in" to an Internet radio station in
9480 Berlin while sitting in San Francisco, even though there's no way for
9481 me to tune in to a regular radio station much beyond the San Francisco
9485 This feature of the architecture of Internet radio means that there
9486 are potentially an unlimited number of radio stations that a user
9487 could tune in to using her computer, whereas under the existing
9488 architecture for broadcast radio, there is an obvious limit to the
9489 number of broadcasters and clear broadcast frequencies. Internet radio
9490 could therefore be more competitive than regular radio; it could
9491 provide a wider range of selections. And because the potential
9492 audience for Internet radio is the whole world, niche stations could
9493 easily develop and market their content to a relatively large number
9494 of users worldwide. According to some estimates, more than eighty
9495 million users worldwide have tuned in to this new form of radio.
9499 <!-- PAGE BREAK 205 -->
9500 Internet radio is thus to radio what FM was to AM. It is an
9501 improvement potentially vastly more significant than the FM
9502 improvement over AM, since not only is the technology better, so, too,
9503 is the competition. Indeed, there is a direct parallel between the
9504 fight to establish FM radio and the fight to protect Internet
9505 radio. As one author describes Howard Armstrong's struggle to enable
9510 An almost unlimited number of FM stations was possible in the
9511 shortwaves, thus ending the unnatural restrictions imposed on radio in
9512 the crowded longwaves. If FM were freely developed, the number of
9513 stations would be limited only by economics and competition rather
9514 than by technical restrictions.
… Armstrong likened the situation
9515 that had grown up in radio to that following the invention of the
9516 printing press, when governments and ruling interests attempted to
9517 control this new instrument of mass communications by imposing
9518 restrictive licenses on it. This tyranny was broken only when it
9519 became possible for men freely to acquire printing presses and freely
9520 to run them. FM in this sense was as great an invention as the
9521 printing presses, for it gave radio the opportunity to strike off its
9522 shackles.
<footnote><para>
9529 This potential for FM radio was never realized
—not
9530 because Armstrong was wrong about the technology, but because he
9531 underestimated the power of "vested interests, habits, customs and
9532 legislation"
<footnote><para>
9536 to retard the growth of this competing technology.
9539 Now the very same claim could be made about Internet radio. For
9540 again, there is no technical limitation that could restrict the number of
9541 Internet radio stations. The only restrictions on Internet radio are
9542 those imposed by the law. Copyright law is one such law. So the first
9543 question we should ask is, what copyright rules would govern Internet
9547 But here the power of the lobbyists is reversed. Internet radio is a
9548 new industry. The recording artists, on the other hand, have a very
9550 <!-- PAGE BREAK 206 -->
9551 powerful lobby, the RIAA. Thus when Congress considered the phenomenon
9552 of Internet radio in
1995, the lobbyists had primed Congress to adopt
9553 a different rule for Internet radio than the rule that applies to
9554 terrestrial radio. While terrestrial radio does not have to pay our
9555 hypothetical Marilyn Monroe when it plays her hypothetical recording
9556 of "Happy Birthday" on the air,
<emphasis>Internet radio
9557 does
</emphasis>. Not only is the law not neutral toward Internet
9558 radio
—the law actually burdens Internet radio more than it
9559 burdens terrestrial radio.
9562 This financial burden is not slight. As Harvard law professor
9563 William Fisher estimates, if an Internet radio station distributed adfree
9564 popular music to (on average) ten thousand listeners, twenty-four
9565 hours a day, the total artist fees that radio station would owe would be
9566 over $
1 million a year.
<footnote>
9569 This example was derived from fees set by the original Copyright
9570 Arbitration Royalty Panel (CARP) proceedings, and is drawn from an
9571 example offered by Professor William Fisher. Conference Proceedings,
9572 iLaw (Stanford),
3 July
2003, on file with author. Professors Fisher
9573 and Zittrain submitted testimony in the CARP proceeding that was
9574 ultimately rejected. See Jonathan Zittrain, Digital Performance Right
9575 in Sound Recordings and Ephemeral Recordings, Docket No.
2000-
9, CARP
9576 DTRA
1 and
2, available at
9577 <ulink url=
"http://free-culture.cc/notes/">link #
45</ulink>.
9578 For an excellent analysis making a similar point, see Randal
9579 C. Picker, "Copyright as Entry Policy: The Case of Digital
9580 Distribution,"
<citetitle>Antitrust Bulletin
</citetitle> (Summer/Fall
2002):
461: "This was
9581 not confusion, these are just old-fashioned entry barriers. Analog
9582 radio stations are protected from digital entrants, reducing entry in
9583 radio and diversity. Yes, this is done in the name of getting
9584 royalties to copyright holders, but, absent the play of powerful
9585 interests, that could have been done in a media-neutral way."
9586 <indexterm><primary>CARP (Copyright Arbitration Royalty Panel)
</primary></indexterm>
9587 <indexterm><primary>Picker, Randal C.
</primary></indexterm>
9589 A regular radio station broadcasting the same content would pay no
9593 The burden is not financial only. Under the original rules that were
9594 proposed, an Internet radio station (but not a terrestrial radio
9595 station) would have to collect the following data from
<emphasis>every
9596 listening transaction
</emphasis>:
9598 <!-- PAGE BREAK 207 -->
9599 <orderedlist numeration=
"arabic">
9601 name of the service;
9604 channel of the program (AM/FM stations use station ID);
9607 type of program (archived/looped/live);
9610 date of transmission;
9613 time of transmission;
9616 time zone of origination of transmission;
9619 numeric designation of the place of the sound recording within the program;
9622 duration of transmission (to nearest second);
9625 sound recording title;
9628 ISRC code of the recording;
9631 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;
9634 featured recording artist;
9643 UPC code of the retail album;
9649 copyright owner information;
9652 musical genre of the channel or program (station format);
9655 name of the service or entity;
9661 date and time that the user logged in (in the user's time zone);
9664 date and time that the user logged out (in the user's time zone);
9667 time zone where the signal was received (user);
9670 unique user identifier;
9673 the country in which the user received the transmissions.
9678 The Librarian of Congress eventually suspended these reporting
9679 requirements, pending further study. And he also changed the original
9680 rates set by the arbitration panel charged with setting rates. But the
9681 basic difference between Internet radio and terrestrial radio remains:
9682 Internet radio has to pay a
<emphasis>type of copyright fee
</emphasis>
9683 that terrestrial radio does not.
9686 Why? What justifies this difference? Was there any study of the
9687 economic consequences from Internet radio that would justify these
9688 differences? Was the motive to protect artists against piracy?
9690 <indexterm><primary>Alben, Alex
</primary></indexterm>
9691 <indexterm><primary>Real Networks
</primary></indexterm>
9693 In a rare bit of candor, one RIAA expert admitted what seemed obvious
9694 to everyone at the time. As Alex Alben, vice president for Public
9695 Policy at Real Networks, told me,
9699 The RIAA, which was representing the record labels, presented
9700 some testimony about what they thought a willing buyer would
9701 pay to a willing seller, and it was much higher. It was ten times
9702 higher than what radio stations pay to perform the same songs for
9703 the same period of time. And so the attorneys representing the
9704 webcasters asked the RIAA,
… "How do you come up with a
9706 <!-- PAGE BREAK 208 -->
9707 rate that's so much higher? Why is it worth more than radio? Because
9708 here we have hundreds of thousands of webcasters who want to pay, and
9709 that should establish the market rate, and if you set the rate so
9710 high, you're going to drive the small webcasters out of
9714 And the RIAA experts said, "Well, we don't really model this as an
9715 industry with thousands of webcasters,
<emphasis>we think it should be
9716 an industry with, you know, five or seven big players who can pay a
9717 high rate and it's a stable, predictable market
</emphasis>." (Emphasis
9722 Translation: The aim is to use the law to eliminate competition, so
9723 that this platform of potentially immense competition, which would
9724 cause the diversity and range of content available to explode, would not
9725 cause pain to the dinosaurs of old. There is no one, on either the right
9726 or the left, who should endorse this use of the law. And yet there is
9727 practically no one, on either the right or the left, who is doing anything
9728 effective to prevent it.
9731 <section id=
"corruptingcitizens">
9732 <title>Corrupting Citizens
</title>
9734 Overregulation stifles creativity. It smothers innovation. It gives
9736 a veto over the future. It wastes the extraordinary opportunity
9737 for a democratic creativity that digital technology enables.
9740 In addition to these important harms, there is one more that was
9741 important to our forebears, but seems forgotten today. Overregulation
9742 corrupts citizens and weakens the rule of law.
9745 The war that is being waged today is a war of prohibition. As with
9746 every war of prohibition, it is targeted against the behavior of a very
9747 large number of citizens. According to
<citetitle>The New York Times
</citetitle>,
43 million
9748 Americans downloaded music in May
2002.
<footnote><para>
9749 <!-- f15. --> Mike Graziano and Lee Rainie, "The Music Downloading Deluge," Pew
9750 Internet and American Life Project (
24 April
2001), available at
9751 <ulink url=
"http://free-culture.cc/notes/">link #
46</ulink>.
9752 The Pew Internet and American Life Project reported that
37 million
9753 Americans had downloaded music files from the Internet by early
2001.
9755 According to the RIAA,
9756 the behavior of those
43 million Americans is a felony. We thus have a
9757 set of rules that transform
20 percent of America into criminals. As the
9759 <!-- PAGE BREAK 209 -->
9760 RIAA launches lawsuits against not only the Napsters and Kazaas of
9761 the world, but against students building search engines, and
9763 against ordinary users downloading content, the technologies for
9764 sharing will advance to further protect and hide illegal use. It is an arms
9765 race or a civil war, with the extremes of one side inviting a more
9767 response by the other.
9770 The content industry's tactics exploit the failings of the American
9771 legal system. When the RIAA brought suit against Jesse Jordan, it
9772 knew that in Jordan it had found a scapegoat, not a defendant. The
9773 threat of having to pay either all the money in the world in damages
9774 ($
15,
000,
000) or almost all the money in the world to defend against
9775 paying all the money in the world in damages ($
250,
000 in legal fees)
9776 led Jordan to choose to pay all the money he had in the world
9777 ($
12,
000) to make the suit go away. The same strategy animates the
9778 RIAA's suits against individual users. In September
2003, the RIAA
9779 sued
261 individuals
—including a twelve-year-old girl living in public
9780 housing and a seventy-year-old man who had no idea what file sharing
9781 was.
<footnote><para>
9783 Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case,"
<citetitle>Los
9784 Angeles Times
</citetitle>,
10 September
2003, Business.
9786 As these scapegoats discovered, it will always cost more to defend
9787 against these suits than it would cost to simply settle. (The twelve
9788 year old, for example, like Jesse Jordan, paid her life savings of $
2,
000
9789 to settle the case.) Our law is an awful system for defending rights. It
9790 is an embarrassment to our tradition. And the consequence of our law
9791 as it is, is that those with the power can use the law to quash any rights
9795 Wars of prohibition are nothing new in America. This one is just
9796 something more extreme than anything we've seen before. We
9797 experimented with alcohol prohibition, at a time when the per capita
9798 consumption of alcohol was
1.5 gallons per capita per year. The war
9799 against drinking initially reduced that consumption to just
30 percent
9800 of its preprohibition levels, but by the end of prohibition,
9801 consumption was up to
70 percent of the preprohibition
9802 level. Americans were drinking just about as much, but now, a vast
9803 number were criminals.
<footnote><para>
9805 Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During
9806 Prohibition,"
<citetitle>American Economic Review
</citetitle> 81, no.
2 (
1991):
242.
9809 <!-- PAGE BREAK 210 -->
9810 launched a war on drugs aimed at reducing the consumption of regulated
9811 narcotics that
7 percent (or
16 million) Americans now use.
<footnote><para>
9813 National Drug Control Policy: Hearing Before the House Government
9814 Reform Committee,
108th Cong.,
1st sess. (
5 March
2003) (statement of
9815 John P. Walters, director of National Drug Control Policy).
9817 That is a drop from the high (so to speak) in
1979 of
14 percent of
9818 the population. We regulate automobiles to the point where the vast
9819 majority of Americans violate the law every day. We run such a complex
9820 tax system that a majority of cash businesses regularly
9821 cheat.
<footnote><para>
9823 See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax
9824 Compliance,"
<citetitle>Journal of Economic Literature
</citetitle> 36 (
1998):
818 (survey of
9825 compliance literature).
9827 We pride ourselves on our "free society," but an endless array of
9828 ordinary behavior is regulated within our society. And as a result, a
9829 huge proportion of Americans regularly violate at least some law.
9830 <indexterm><primary>alcohol prohibition
</primary></indexterm>
9833 This state of affairs is not without consequence. It is a particularly
9834 salient issue for teachers like me, whose job it is to teach law
9835 students about the importance of "ethics." As my colleague Charlie
9836 Nesson told a class at Stanford, each year law schools admit thousands
9837 of students who have illegally downloaded music, illegally consumed
9838 alcohol and sometimes drugs, illegally worked without paying taxes,
9839 illegally driven cars. These are kids for whom behaving illegally is
9840 increasingly the norm. And then we, as law professors, are supposed to
9841 teach them how to behave ethically
—how to say no to bribes, or
9842 keep client funds separate, or honor a demand to disclose a document
9843 that will mean that your case is over. Generations of
9844 Americans
—more significantly in some parts of America than in
9845 others, but still, everywhere in America today
—can't live their
9846 lives both normally and legally, since "normally" entails a certain
9847 degree of illegality.
9848 <indexterm><primary>law schools
</primary></indexterm>
9851 The response to this general illegality is either to enforce the law
9852 more severely or to change the law. We, as a society, have to learn
9853 how to make that choice more rationally. Whether a law makes sense
9854 depends, in part, at least, upon whether the costs of the law, both
9855 intended and collateral, outweigh the benefits. If the costs, intended
9856 and collateral, do outweigh the benefits, then the law ought to be
9857 changed. Alternatively, if the costs of the existing system are much
9858 greater than the costs of an alternative, then we have a good reason
9859 to consider the alternative.
9863 <!-- PAGE BREAK 211 -->
9864 My point is not the idiotic one: Just because people violate a law, we
9865 should therefore repeal it. Obviously, we could reduce murder statistics
9866 dramatically by legalizing murder on Wednesdays and Fridays. But
9867 that wouldn't make any sense, since murder is wrong every day of the
9868 week. A society is right to ban murder always and everywhere.
9871 My point is instead one that democracies understood for generations,
9872 but that we recently have learned to forget. The rule of law depends
9873 upon people obeying the law. The more often, and more repeatedly, we
9874 as citizens experience violating the law, the less we respect the
9875 law. Obviously, in most cases, the important issue is the law, not
9876 respect for the law. I don't care whether the rapist respects the law
9877 or not; I want to catch and incarcerate the rapist. But I do care
9878 whether my students respect the law. And I do care if the rules of law
9879 sow increasing disrespect because of the extreme of regulation they
9880 impose. Twenty million Americans have come of age since the Internet
9881 introduced this different idea of "sharing." We need to be able to
9882 call these twenty million Americans "citizens," not "felons."
9885 When at least forty-three million citizens download content from the
9886 Internet, and when they use tools to combine that content in ways
9887 unauthorized by copyright holders, the first question we should be
9888 asking is not how best to involve the FBI. The first question should
9889 be whether this particular prohibition is really necessary in order to
9890 achieve the proper ends that copyright law serves. Is there another
9891 way to assure that artists get paid without transforming forty-three
9892 million Americans into felons? Does it make sense if there are other
9893 ways to assure that artists get paid without transforming America into
9897 This abstract point can be made more clear with a particular example.
9900 We all own CDs. Many of us still own phonograph records. These pieces
9901 of plastic encode music that in a certain sense we have bought. The
9902 law protects our right to buy and sell that plastic: It is not a
9903 copyright infringement for me to sell all my classical records at a
9906 <!-- PAGE BREAK 212 -->
9907 record store and buy jazz records to replace them. That "use" of the
9911 But as the MP3 craze has demonstrated, there is another use of
9912 phonograph records that is effectively free. Because these recordings
9913 were made without copy-protection technologies, I am "free" to copy,
9914 or "rip," music from my records onto a computer hard disk. Indeed,
9915 Apple Corporation went so far as to suggest that "freedom" was a
9916 right: In a series of commercials, Apple endorsed the "Rip, Mix, Burn"
9917 capacities of digital technologies.
9919 <indexterm><primary>Adromeda
</primary></indexterm>
9921 This "use" of my records is certainly valuable. I have begun a large
9922 process at home of ripping all of my and my wife's CDs, and storing
9923 them in one archive. Then, using Apple's iTunes, or a wonderful
9924 program called Andromeda, we can build different play lists of our
9925 music: Bach, Baroque, Love Songs, Love Songs of Significant
9926 Others
—the potential is endless. And by reducing the costs of
9927 mixing play lists, these technologies help build a creativity with
9928 play lists that is itself independently valuable. Compilations of
9929 songs are creative and meaningful in their own right.
9932 This use is enabled by unprotected media
—either CDs or records.
9933 But unprotected media also enable file sharing. File sharing threatens
9934 (or so the content industry believes) the ability of creators to earn
9935 a fair return from their creativity. And thus, many are beginning to
9936 experiment with technologies to eliminate unprotected media. These
9937 technologies, for example, would enable CDs that could not be
9938 ripped. Or they might enable spy programs to identify ripped content
9939 on people's machines.
9942 If these technologies took off, then the building of large archives of
9943 your own music would become quite difficult. You might hang in hacker
9944 circles, and get technology to disable the technologies that protect
9945 the content. Trading in those technologies is illegal, but maybe that
9946 doesn't bother you much. In any case, for the vast majority of people,
9947 these protection technologies would effectively destroy the archiving
9949 <!-- PAGE BREAK 213 -->
9950 use of CDs. The technology, in other words, would force us all back to
9951 the world where we either listened to music by manipulating pieces of
9952 plastic or were part of a massively complex "digital rights
9956 If the only way to assure that artists get paid were the elimination
9957 of the ability to freely move content, then these technologies to
9958 interfere with the freedom to move content would be justifiable. But
9959 what if there were another way to assure that artists are paid,
9960 without locking down any content? What if, in other words, a different
9961 system could assure compensation to artists while also preserving the
9962 freedom to move content easily?
9965 My point just now is not to prove that there is such a system. I offer
9966 a version of such a system in the last chapter of this book. For now,
9967 the only point is the relatively uncontroversial one: If a different
9968 system achieved the same legitimate objectives that the existing
9969 copyright system achieved, but left consumers and creators much more
9970 free, then we'd have a very good reason to pursue this
9971 alternative
—namely, freedom. The choice, in other words, would
9972 not be between property and piracy; the choice would be between
9973 different property systems and the freedoms each allowed.
9976 I believe there is a way to assure that artists are paid without
9977 turning forty-three million Americans into felons. But the salient
9978 feature of this alternative is that it would lead to a very different
9979 market for producing and distributing creativity. The dominant few,
9980 who today control the vast majority of the distribution of content in
9981 the world, would no longer exercise this extreme of control. Rather,
9982 they would go the way of the horse-drawn buggy.
9985 Except that this generation's buggy manufacturers have already saddled
9986 Congress, and are riding the law to protect themselves against this
9987 new form of competition. For them the choice is between fortythree
9988 million Americans as criminals and their own survival.
9991 It is understandable why they choose as they do. It is not
9992 understandable why we as a democracy continue to choose as we do. Jack
9994 <!-- PAGE BREAK 214 -->
9996 Valenti is charming; but not so charming as to justify giving up a
9997 tradition as deep and important as our tradition of free culture.
9998 There's one more aspect to this corruption that is particularly
9999 important to civil liberties, and follows directly from any war of
10000 prohibition. As Electronic Frontier Foundation attorney Fred von
10001 Lohmann describes, this is the "collateral damage" that "arises
10002 whenever you turn a very large percentage of the population into
10003 criminals." This is the collateral damage to civil liberties
10005 <indexterm><primary>Electronic Frontier Foundation
</primary></indexterm>
10008 "If you can treat someone as a putative lawbreaker," von Lohmann
10010 <indexterm><primary>von Lohmann, Fred
</primary></indexterm>
10014 then all of a sudden a lot of basic civil liberty protections
10015 evaporate to one degree or another.
… If you're a copyright
10016 infringer, how can you hope to have any privacy rights? If you're a
10017 copyright infringer, how can you hope to be secure against seizures of
10018 your computer? How can you hope to continue to receive Internet
10019 access?
… Our sensibilities change as soon as we think, "Oh, well,
10020 but that person's a criminal, a lawbreaker." Well, what this campaign
10021 against file sharing has done is turn a remarkable percentage of the
10022 American Internet-using population into "lawbreakers."
10026 And the consequence of this transformation of the American public
10027 into criminals is that it becomes trivial, as a matter of due process, to
10028 effectively erase much of the privacy most would presume.
10031 Users of the Internet began to see this generally in
2003 as the RIAA
10032 launched its campaign to force Internet service providers to turn over
10033 the names of customers who the RIAA believed were violating copyright
10034 law. Verizon fought that demand and lost. With a simple request to a
10035 judge, and without any notice to the customer at all, the identity of
10036 an Internet user is revealed.
10039 <!-- PAGE BREAK 215 -->
10040 The RIAA then expanded this campaign, by announcing a general strategy
10041 to sue individual users of the Internet who are alleged to have
10042 downloaded copyrighted music from file-sharing systems. But as we've
10043 seen, the potential damages from these suits are astronomical: If a
10044 family's computer is used to download a single CD's worth of music,
10045 the family could be liable for $
2 million in damages. That didn't stop
10046 the RIAA from suing a number of these families, just as they had sued
10047 Jesse Jordan.
<footnote><para>
10049 See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single
10050 Mother in Calif.,
12-Year-Old Girl in N.Y. Among Defendants,"
10051 <citetitle>Washington Post
</citetitle>,
10 September
2003, E1; Chris Cobbs, "Worried Parents
10052 Pull Plug on File `Stealing'; With the Music Industry Cracking Down on
10053 File Swapping, Parents are Yanking Software from Home PCs to Avoid
10054 Being Sued,"
<citetitle>Orlando Sentinel Tribune
</citetitle>,
30 August
2003, C1; Jefferson
10055 Graham, "Recording Industry Sues Parents,"
<citetitle>USA Today
</citetitle>,
15 September
10056 2003,
4D; John Schwartz, "She Says She's No Music Pirate. No Snoop
10057 Fan, Either,"
<citetitle>New York Times
</citetitle>,
25 September
2003, C1; Margo Varadi, "Is
10058 Brianna a Criminal?"
<citetitle>Toronto Star
</citetitle>,
18 September
2003, P7.
10063 Even this understates the espionage that is being waged by the
10064 RIAA. A report from CNN late last summer described a strategy the
10065 RIAA had adopted to track Napster users.
<footnote><para>
10067 See "Revealed: How RIAA Tracks Downloaders: Music Industry Discloses
10068 Some Methods Used," CNN.com, available at
10069 <ulink url=
"http://free-culture.cc/notes/">link #
47</ulink>.
10071 Using a sophisticated hashing algorithm, the RIAA took what is in
10072 effect a fingerprint of every song in the Napster catalog. Any copy of
10073 one of those MP3s will have the same "fingerprint."
10076 So imagine the following not-implausible scenario: Imagine a
10077 friend gives a CD to your daughter
—a collection of songs just
10078 like the cassettes you used to make as a kid. You don't know, and
10079 neither does your daughter, where these songs came from. But she
10080 copies these songs onto her computer. She then takes her computer to
10081 college and connects it to a college network, and if the college
10082 network is "cooperating" with the RIAA's espionage, and she hasn't
10083 properly protected her content from the network (do you know how to do
10084 that yourself ?), then the RIAA will be able to identify your daughter
10085 as a "criminal." And under the rules that universities are beginning
10086 to deploy,
<footnote><para>
10088 See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent,"
10089 <citetitle>Boston Globe
</citetitle>,
18 May
2003, City Weekly,
1; Frank Ahrens, "Four
10090 Students Sued over Music Sites; Industry Group Targets File Sharing at
10091 Colleges,"
<citetitle>Washington Post
</citetitle>,
4 April
2003, E1; Elizabeth Armstrong,
10092 "Students `Rip, Mix, Burn' at Their Own Risk,"
<citetitle>Christian Science
10093 Monitor
</citetitle>,
2 September
2003,
20; Robert Becker and Angela Rozas, "Music
10094 Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over;
10095 Lawsuit Possible,"
<citetitle>Chicago Tribune
</citetitle>,
16 July
2003,
1C; Beth Cox, "RIAA
10096 Trains Antipiracy Guns on Universities,"
<citetitle>Internet News
</citetitle>,
30 January
10097 2003, available at
<ulink url=
"http://free-culture.cc/notes/">link
10098 #
48</ulink>; Benny Evangelista, "Download Warning
101: Freshman
10099 Orientation This Fall to Include Record Industry Warnings Against File
10100 Sharing,"
<citetitle>San Francisco Chronicle
</citetitle>,
11 August
2003, E11; "Raid, Letters
10101 Are Weapons at Universities,"
<citetitle>USA Today
</citetitle>,
26 September
2000,
3D.
10103 your daughter can lose the right to use the university's computer
10104 network. She can, in some cases, be expelled.
10107 Now, of course, she'll have the right to defend herself. You can hire
10108 a lawyer for her (at $
300 per hour, if you're lucky), and she can
10109 plead that she didn't know anything about the source of the songs or
10110 that they came from Napster. And it may well be that the university
10111 believes her. But the university might not believe her. It might treat
10112 this "contraband" as presumptive of guilt. And as any number of
10115 <!-- PAGE BREAK 216 -->
10116 have already learned, our presumptions about innocence disappear in
10117 the middle of wars of prohibition. This war is no different.
10119 <indexterm><primary>von Lohmann, Fred
</primary></indexterm>
10123 So when we're talking about numbers like forty to sixty million
10124 Americans that are essentially copyright infringers, you create a
10125 situation where the civil liberties of those people are very much in
10126 peril in a general matter. [I don't] think [there is any] analog where
10127 you could randomly choose any person off the street and be confident
10128 that they were committing an unlawful act that could put them on the
10129 hook for potential felony liability or hundreds of millions of dollars
10130 of civil liability. Certainly we all speed, but speeding isn't the
10131 kind of an act for which we routinely forfeit civil liberties. Some
10132 people use drugs, and I think that's the closest analog, [but] many
10133 have noted that the war against drugs has eroded all of our civil
10134 liberties because it's treated so many Americans as criminals. Well, I
10135 think it's fair to say that file sharing is an order of magnitude
10136 larger number of Americans than drug use.
… If forty to sixty
10137 million Americans have become lawbreakers, then we're really on a
10138 slippery slope to lose a lot of civil liberties for all forty to sixty
10143 When forty to sixty million Americans are considered "criminals" under
10144 the law, and when the law could achieve the same objective
—
10145 securing rights to authors
—without these millions being
10146 considered "criminals," who is the villain? Americans or the law?
10147 Which is American, a constant war on our own people or a concerted
10148 effort through our democracy to change our law?
10151 <!-- PAGE BREAK 217 -->
10155 <part id=
"c-balances">
10156 <title>BALANCES
</title>
10159 <!-- PAGE BREAK 218 -->
10161 So here's the picture: You're standing at the side of the road. Your
10162 car is on fire. You are angry and upset because in part you helped start
10163 the fire. Now you don't know how to put it out. Next to you is a bucket,
10164 filled with gasoline. Obviously, gasoline won't put the fire out.
10167 As you ponder the mess, someone else comes along. In a panic, she
10168 grabs the bucket. Before you have a chance to tell her to
10169 stop
—or before she understands just why she should
10170 stop
—the bucket is in the air. The gasoline is about to hit the
10171 blazing car. And the fire that gasoline will ignite is about to ignite
10175 A war about copyright rages all around
—and we're all focusing on
10176 the wrong thing. No doubt, current technologies threaten existing
10177 businesses. No doubt they may threaten artists. But technologies
10178 change. The industry and technologists have plenty of ways to use
10179 technology to protect themselves against the current threats of the
10180 Internet. This is a fire that if let alone would burn itself out.
10183 <!-- PAGE BREAK 219 -->
10184 Yet policy makers are not willing to leave this fire to itself. Primed
10185 with plenty of lobbyists' money, they are keen to intervene to
10186 eliminate the problem they perceive. But the problem they perceive is
10187 not the real threat this culture faces. For while we watch this small
10188 fire in the corner, there is a massive change in the way culture is
10189 made that is happening all around.
10192 Somehow we have to find a way to turn attention to this more important
10193 and fundamental issue. Somehow we have to find a way to avoid pouring
10194 gasoline onto this fire.
10197 We have not found that way yet. Instead, we seem trapped in a simpler,
10198 binary view. However much many people push to frame this debate more
10199 broadly, it is the simple, binary view that remains. We rubberneck to
10200 look at the fire when we should be keeping our eyes on the road.
10203 This challenge has been my life these last few years. It has also been
10204 my failure. In the two chapters that follow, I describe one small
10205 brace of efforts, so far failed, to find a way to refocus this
10206 debate. We must understand these failures if we're to understand what
10207 success will require.
10211 <!-- PAGE BREAK 220 -->
10212 <chapter label=
"13" id=
"eldred">
10213 <title>CHAPTER THIRTEEN: Eldred
</title>
10214 <indexterm id=
"idxhawthornenathaniel" class='startofrange'
>
10215 <primary>Hawthorne, Nathaniel
</primary>
10218 In
1995, a father was frustrated that his daughters didn't seem to
10219 like Hawthorne. No doubt there was more than one such father, but at
10220 least one did something about it. Eric Eldred, a retired computer
10221 programmer living in New Hampshire, decided to put Hawthorne on the
10222 Web. An electronic version, Eldred thought, with links to pictures and
10223 explanatory text, would make this nineteenth-century author's work
10227 It didn't work
—at least for his daughters. They didn't find
10228 Hawthorne any more interesting than before. But Eldred's experiment
10229 gave birth to a hobby, and his hobby begat a cause: Eldred would build
10230 a library of public domain works by scanning these works and making
10231 them available for free.
10234 Eldred's library was not simply a copy of certain public domain
10235 works, though even a copy would have been of great value to people
10236 across the world who can't get access to printed versions of these
10237 works. Instead, Eldred was producing derivative works from these
10238 public domain works. Just as Disney turned Grimm into stories more
10239 <!-- PAGE BREAK 221 -->
10240 accessible to the twentieth century, Eldred transformed Hawthorne, and
10241 many others, into a form more accessible
—technically
10242 accessible
—today.
10245 Eldred's freedom to do this with Hawthorne's work grew from the same
10246 source as Disney's. Hawthorne's
<citetitle>Scarlet Letter
</citetitle> had passed into the
10247 public domain in
1907. It was free for anyone to take without the
10248 permission of the Hawthorne estate or anyone else. Some, such as Dover
10249 Press and Penguin Classics, take works from the public domain and
10250 produce printed editions, which they sell in bookstores across the
10251 country. Others, such as Disney, take these stories and turn them into
10252 animated cartoons, sometimes successfully (
<citetitle>Cinderella
</citetitle>), sometimes not
10253 (
<citetitle>The Hunchback of Notre Dame
</citetitle>,
<citetitle>Treasure Planet
</citetitle>). These are all
10254 commercial publications of public domain works.
10256 <indexterm startref=
"idxhawthornenathaniel" class='endofrange'
/>
10258 The Internet created the possibility of noncommercial publications of
10259 public domain works. Eldred's is just one example. There are literally
10260 thousands of others. Hundreds of thousands from across the world have
10261 discovered this platform of expression and now use it to share works
10262 that are, by law, free for the taking. This has produced what we might
10263 call the "noncommercial publishing industry," which before the
10264 Internet was limited to people with large egos or with political or
10265 social causes. But with the Internet, it includes a wide range of
10266 individuals and groups dedicated to spreading culture
10267 generally.
<footnote><para>
10269 There's a parallel here with pornography that is a bit hard to
10270 describe, but it's a strong one. One phenomenon that the Internet
10271 created was a world of noncommercial pornographers
—people who
10272 were distributing porn but were not making money directly or
10273 indirectly from that distribution. Such a class didn't exist before
10274 the Internet came into being because the costs of distributing porn
10275 were so high. Yet this new class of distributors got special attention
10276 in the Supreme Court, when the Court struck down the Communications
10277 Decency Act of
1996. It was partly because of the burden on
10278 noncommercial speakers that the statute was found to exceed Congress's
10279 power. The same point could have been made about noncommercial
10280 publishers after the advent of the Internet. The Eric Eldreds of the
10281 world before the Internet were extremely few. Yet one would think it
10282 at least as important to protect the Eldreds of the world as to
10283 protect noncommercial pornographers.
</para></footnote>
10286 As I said, Eldred lives in New Hampshire. In
1998, Robert Frost's
10287 collection of poems
<citetitle>New Hampshire
</citetitle> was slated to
10288 pass into the public domain. Eldred wanted to post that collection in
10289 his free public library. But Congress got in the way. As I described
10290 in chapter
<xref xrefstyle=
"select: labelnumber"
10291 linkend=
"property-i"/>, in
1998, for the eleventh time in forty years,
10292 Congress extended the terms of existing copyrights
—this time by
10293 twenty years. Eldred would not be free to add any works more recent
10294 than
1923 to his collection until
2019. Indeed, no copyrighted work
10295 would pass into the public domain until that year (and not even then,
10296 if Congress extends the term again). By contrast, in the same period,
10297 more than
1 million patents will pass into the public domain.
10301 <!-- PAGE BREAK 222 -->
10302 This was the Sonny Bono Copyright Term Extension Act
10303 (CTEA), enacted in memory of the congressman and former musician
10304 Sonny Bono, who, his widow, Mary Bono, says, believed that
10305 "copyrights should be forever."
<footnote><para>
10307 The full text is: "Sonny [Bono] wanted the term of copyright
10308 protection to last forever. I am informed by staff that such a change
10309 would violate the Constitution. I invite all of you to work with me to
10310 strengthen our copyright laws in all of the ways available to us. As
10311 you know, there is also Jack Valenti's proposal for a term to last
10312 forever less one day. Perhaps the Committee may look at that next
10313 Congress,"
144 Cong. Rec. H9946,
9951-
2 (October
7,
1998).
10318 Eldred decided to fight this law. He first resolved to fight it through
10319 civil disobedience. In a series of interviews, Eldred announced that he
10320 would publish as planned, CTEA notwithstanding. But because of a
10321 second law passed in
1998, the NET (No Electronic Theft) Act, his act
10322 of publishing would make Eldred a felon
—whether or not anyone
10323 complained. This was a dangerous strategy for a disabled programmer
10327 It was here that I became involved in Eldred's battle. I was a
10329 scholar whose first passion was constitutional
10331 And though constitutional law courses never focus upon the
10332 Progress Clause of the Constitution, it had always struck me as
10334 different. As you know, the Constitution says,
10338 Congress has the power to promote the Progress of Science
…
10339 by securing for limited Times to Authors
… exclusive Right to
10340 their
… Writings.
…
10344 As I've described, this clause is unique within the power-granting
10345 clause of Article I, section
8 of our Constitution. Every other clause
10346 granting power to Congress simply says Congress has the power to do
10347 something
—for example, to regulate "commerce among the several
10348 states" or "declare War." But here, the "something" is something quite
10349 specific
—to "promote
… Progress"
—through means that
10350 are also specific
— by "securing" "exclusive Rights" (i.e.,
10351 copyrights) "for limited Times."
10354 In the past forty years, Congress has gotten into the practice of
10355 extending existing terms of copyright protection. What puzzled me
10356 about this was, if Congress has the power to extend existing terms,
10357 then the Constitution's requirement that terms be "limited" will have
10358 <!-- PAGE BREAK 223 -->
10359 no practical effect. If every time a copyright is about to expire,
10360 Congress has the power to extend its term, then Congress can achieve
10361 what the Constitution plainly forbids
—perpetual terms "on the
10362 installment plan," as Professor Peter Jaszi so nicely put it.
10363 <indexterm><primary>Jaszi, Peter
</primary></indexterm>
10366 As an academic, my first response was to hit the books. I remember
10367 sitting late at the office, scouring on-line databases for any serious
10368 consideration of the question. No one had ever challenged Congress's
10369 practice of extending existing terms. That failure may in part be why
10370 Congress seemed so untroubled in its habit. That, and the fact that
10371 the practice had become so lucrative for Congress. Congress knows that
10372 copyright owners will be willing to pay a great deal of money to see
10373 their copyright terms extended. And so Congress is quite happy to keep
10374 this gravy train going.
10377 For this is the core of the corruption in our present system of
10378 government. "Corruption" not in the sense that representatives are
10379 bribed. Rather, "corruption" in the sense that the system induces the
10380 beneficiaries of Congress's acts to raise and give money to Congress
10381 to induce it to act. There's only so much time; there's only so much
10382 Congress can do. Why not limit its actions to those things it must
10383 do
—and those things that pay? Extending copyright terms pays.
10386 If that's not obvious to you, consider the following: Say you're one
10387 of the very few lucky copyright owners whose copyright continues to
10388 make money one hundred years after it was created. The Estate of
10389 Robert Frost is a good example. Frost died in
1963. His poetry
10390 continues to be extraordinarily valuable. Thus the Robert Frost estate
10391 benefits greatly from any extension of copyright, since no publisher
10392 would pay the estate any money if the poems Frost wrote could be
10393 published by anyone for free.
10396 So imagine the Robert Frost estate is earning $
100,
000 a year from
10397 three of Frost's poems. And imagine the copyright for those poems
10398 is about to expire. You sit on the board of the Robert Frost estate.
10399 Your financial adviser comes to your board meeting with a very grim
10403 "Next year," the adviser announces, "our copyrights in works A, B,
10405 <!-- PAGE BREAK 224 -->
10406 and C will expire. That means that after next year, we will no longer be
10407 receiving the annual royalty check of $
100,
000 from the publishers of
10411 "There's a proposal in Congress, however," she continues, "that
10412 could change this. A few congressmen are floating a bill to extend the
10413 terms of copyright by twenty years. That bill would be extraordinarily
10414 valuable to us. So we should hope this bill passes."
10417 "Hope?" a fellow board member says. "Can't we be doing something
10421 "Well, obviously, yes," the adviser responds. "We could contribute
10422 to the campaigns of a number of representatives to try to assure that
10423 they support the bill."
10426 You hate politics. You hate contributing to campaigns. So you want
10427 to know whether this disgusting practice is worth it. "How much
10428 would we get if this extension were passed?" you ask the adviser. "How
10432 "Well," the adviser says, "if you're confident that you will continue
10433 to get at least $
100,
000 a year from these copyrights, and you use the
10434 `discount rate' that we use to evaluate estate investments (
6 percent),
10435 then this law would be worth $
1,
146,
000 to the estate."
10438 You're a bit shocked by the number, but you quickly come to the
10439 correct conclusion:
10442 "So you're saying it would be worth it for us to pay more than
10443 $
1,
000,
000 in campaign contributions if we were confident those
10445 would assure that the bill was passed?"
10448 "Absolutely," the adviser responds. "It is worth it to you to
10450 up to the `present value' of the income you expect from these
10451 copyrights. Which for us means over $
1,
000,
000."
10454 You quickly get the point
—you as the member of the board and, I
10455 trust, you the reader. Each time copyrights are about to expire, every
10456 beneficiary in the position of the Robert Frost estate faces the same
10457 choice: If they can contribute to get a law passed to extend copyrights,
10458 <!-- PAGE BREAK 225 -->
10459 they will benefit greatly from that extension. And so each time
10461 are about to expire, there is a massive amount of lobbying to get
10462 the copyright term extended.
10465 Thus a congressional perpetual motion machine: So long as legislation
10466 can be bought (albeit indirectly), there will be all the incentive in
10467 the world to buy further extensions of copyright.
10470 In the lobbying that led to the passage of the Sonny Bono
10472 Term Extension Act, this "theory" about incentives was proved
10473 real. Ten of the thirteen original sponsors of the act in the House
10474 received the maximum contribution from Disney's political action
10475 committee; in the Senate, eight of the twelve sponsors received
10476 contributions.
<footnote><para>
10477 <!-- f3. --> Associated Press, "Disney Lobbying for Copyright Extension No Mickey
10478 Mouse Effort; Congress OKs Bill Granting Creators
20 More Years,"
10479 <citetitle>Chicago Tribune
</citetitle>,
17 October
1998,
22.
10481 The RIAA and the MPAA are estimated to have spent over
10482 $
1.5 million lobbying in the
1998 election cycle. They paid out more
10483 than $
200,
000 in campaign contributions.
<footnote><para>
10484 <!-- f4. --> See Nick Brown, "Fair Use No More?: Copyright in the Information
10486 <ulink url=
"http://free-culture.cc/notes/">link #
49</ulink>.
10488 Disney is estimated to have
10489 contributed more than $
800,
000 to reelection campaigns in the
10490 cycle.
<footnote><para>
10492 Alan K. Ota, "Disney in Washington: The Mouse That Roars,"
10493 <citetitle>Congressional Quarterly This Week
</citetitle>,
8 August
1990, available at
10494 <ulink url=
"http://free-culture.cc/notes/">link #
50</ulink>.
10499 Constitutional law is not oblivious to the obvious. Or at least,
10500 it need not be. So when I was considering Eldred's complaint, this
10502 about the never-ending incentives to increase the copyright term
10503 was central to my thinking. In my view, a pragmatic court committed
10504 to interpreting and applying the Constitution of our framers would see
10505 that if Congress has the power to extend existing terms, then there
10506 would be no effective constitutional requirement that terms be
10508 If they could extend it once, they would extend it again and again
10512 It was also my judgment that
<emphasis>this
</emphasis> Supreme Court
10513 would not allow Congress to extend existing terms. As anyone close to
10514 the Supreme Court's work knows, this Court has increasingly restricted
10515 the power of Congress when it has viewed Congress's actions as
10516 exceeding the power granted to it by the Constitution. Among
10517 constitutional scholars, the most famous example of this trend was the
10520 <!-- PAGE BREAK 226 -->
10521 decision in
1995 to strike down a law that banned the possession of
10525 Since
1937, the Supreme Court had interpreted Congress's granted
10526 powers very broadly; so, while the Constitution grants Congress the
10527 power to regulate only "commerce among the several states" (aka
10529 commerce"), the Supreme Court had interpreted that power to
10530 include the power to regulate any activity that merely affected
10535 As the economy grew, this standard increasingly meant that there was
10536 no limit to Congress's power to regulate, since just about every
10537 activity, when considered on a national scale, affects interstate
10538 commerce. A Constitution designed to limit Congress's power was
10539 instead interpreted to impose no limit.
10541 <indexterm><primary>Rehnquist, William H.
</primary></indexterm>
10543 The Supreme Court, under Chief Justice Rehnquist's command, changed
10544 that in
<citetitle>United States
</citetitle> v.
<citetitle>Lopez
</citetitle>. The government had
10545 argued that possessing guns near schools affected interstate
10546 commerce. Guns near schools increase crime, crime lowers property
10547 values, and so on. In the oral argument, the Chief Justice asked the
10548 government whether there was any activity that would not affect
10549 interstate commerce under the reasoning the government advanced. The
10550 government said there was not; if Congress says an activity affects
10551 interstate commerce, then that activity affects interstate
10552 commerce. The Supreme Court, the government said, was not in the
10553 position to second-guess Congress.
10556 "We pause to consider the implications of the government's arguments,"
10557 the Chief Justice wrote.
<footnote><para>
10558 <!-- f6. --> <citetitle>United States
</citetitle> v.
<citetitle>Lopez
</citetitle>,
514 U.S.
549,
564 (
1995).
10560 If anything Congress says is interstate commerce must therefore be
10561 considered interstate commerce, then there would be no limit to
10562 Congress's power. The decision in
<citetitle>Lopez
</citetitle> was reaffirmed five years
10563 later in
<citetitle>United States
</citetitle> v.
<citetitle>Morrison
</citetitle>.
<footnote><para>
10565 <citetitle>United States
</citetitle> v.
<citetitle>Morrison
</citetitle>,
529 U.S.
598 (
2000).
10569 If a principle were at work here, then it should apply to the Progress
10570 Clause as much as the Commerce Clause.
<footnote><para>
10572 If it is a principle about enumerated powers, then the principle
10573 carries from one enumerated power to another. The animating point in
10574 the context of the Commerce Clause was that the interpretation offered
10575 by the government would allow the government unending power to
10576 regulate commerce
—the limitation to interstate commerce
10577 notwithstanding. The same point is true in the context of the
10578 Copyright Clause. Here, too, the government's interpretation would
10579 allow the government unending power to regulate copyrights
—the
10580 limitation to "limited times" notwithstanding.
10582 And if it is applied to the Progress Clause, the principle should
10583 yield the conclusion that Congress
10584 <!-- PAGE BREAK 227 -->
10585 can't extend an existing term. If Congress could extend an existing
10586 term, then there would be no "stopping point" to Congress's power over
10587 terms, though the Constitution expressly states that there is such a
10588 limit. Thus, the same principle applied to the power to grant
10589 copyrights should entail that Congress is not allowed to extend the
10590 term of existing copyrights.
10593 <emphasis>If
</emphasis>, that is, the principle announced in
<citetitle>Lopez
</citetitle>
10594 stood for a principle. Many believed the decision in
<citetitle>Lopez
</citetitle> stood for
10595 politics
—a conservative Supreme Court, which believed in states'
10596 rights, using its power over Congress to advance its own personal
10597 political preferences. But I rejected that view of the Supreme Court's
10598 decision. Indeed, shortly after the decision, I wrote an article
10599 demonstrating the "fidelity" in such an interpretation of the
10600 Constitution. The idea that the Supreme Court decides cases based upon
10601 its politics struck me as extraordinarily boring. I was not going to
10602 devote my life to teaching constitutional law if these nine Justices
10603 were going to be petty politicians.
10606 Now let's pause for a moment to make sure we understand what the
10607 argument in
<citetitle>Eldred
</citetitle> was not about. By insisting on the
10608 Constitution's limits to copyright, obviously Eldred was not endorsing
10609 piracy. Indeed, in an obvious sense, he was fighting a kind of
10610 piracy
—piracy of the public domain. When Robert Frost wrote his
10611 work and when Walt Disney created Mickey Mouse, the maximum copyright
10612 term was just fifty-six years. Because of interim changes, Frost and
10613 Disney had already enjoyed a seventy-five-year monopoly for their
10614 work. They had gotten the benefit of the bargain that the Constitution
10615 envisions: In exchange for a monopoly protected for fifty-six years,
10616 they created new work. But now these entities were using their
10617 power
—expressed through the power of lobbyists' money
—to
10618 get another twenty-year dollop of monopoly. That twenty-year dollop
10619 would be taken from the public domain. Eric Eldred was fighting a
10620 piracy that affects us all.
10623 Some people view the public domain with contempt. In their brief
10625 <!-- PAGE BREAK 228 -->
10626 before the Supreme Court, the Nashville Songwriters Association
10627 wrote that the public domain is nothing more than "legal piracy."
<footnote><para>
10629 Brief of the Nashville Songwriters Association,
<citetitle>Eldred
</citetitle>
10630 v.
<citetitle>Ashcroft
</citetitle>,
537 U.S.
186 (
2003) (No.
01-
618), n
.10, available
10631 at
<ulink url=
"http://free-culture.cc/notes/">link #
51</ulink>.
10633 But it is not piracy when the law allows it; and in our constitutional
10634 system, our law requires it. Some may not like the Constitution's
10635 requirements, but that doesn't make the Constitution a pirate's
10637 <indexterm><primary>Nashville Songwriters Association
</primary></indexterm>
10640 As we've seen, our constitutional system requires limits on
10642 as a way to assure that copyright holders do not too heavily
10644 the development and distribution of our culture. Yet, as Eric
10645 Eldred discovered, we have set up a system that assures that copyright
10646 terms will be repeatedly extended, and extended, and extended. We
10647 have created the perfect storm for the public domain. Copyrights have
10648 not expired, and will not expire, so long as Congress is free to be
10649 bought to extend them again.
10652 It is valuable copyrights that are responsible for terms being
10654 Mickey Mouse and "Rhapsody in Blue." These works are too
10655 valuable for copyright owners to ignore. But the real harm to our
10657 from copyright extensions is not that Mickey Mouse remains
10659 Forget Mickey Mouse. Forget Robert Frost. Forget all the works
10660 from the
1920s and
1930s that have continuing commercial value. The
10661 real harm of term extension comes not from these famous works. The
10662 real harm is to the works that are not famous, not commercially
10664 and no longer available as a result.
10667 If you look at the work created in the first twenty years (
1923 to
10668 1942) affected by the Sonny Bono Copyright Term Extension Act,
10669 2 percent of that work has any continuing commercial value. It was the
10670 copyright holders for that
2 percent who pushed the CTEA through.
10671 But the law and its effect were not limited to that
2 percent. The law
10672 extended the terms of copyright generally.
<footnote><para>
10673 <!-- f10. --> The figure of
2 percent is an extrapolation from the study by the
10675 Research Service, in light of the estimated renewal ranges. See Brief
10676 of Petitioners,
<citetitle>Eldred
</citetitle> v.
<citetitle>Ashcroft
</citetitle>,
7, available at
10677 <ulink url=
"http://free-culture.cc/notes/">link #
52</ulink>.
10682 Think practically about the consequence of this
10683 extension
—practically,
10684 as a businessperson, and not as a lawyer eager for more legal
10686 <!-- PAGE BREAK 229 -->
10687 work. In
1930,
10,
047 books were published. In
2000,
174 of those
10688 books were still in print. Let's say you were Brewster Kahle, and you
10689 wanted to make available to the world in your iArchive project the
10691 9,
873. What would you have to do?
10694 Well, first, you'd have to determine which of the
9,
873 books were
10695 still under copyright. That requires going to a library (these data are
10696 not on-line) and paging through tomes of books, cross-checking the
10697 titles and authors of the
9,
873 books with the copyright registration
10698 and renewal records for works published in
1930. That will produce a
10699 list of books still under copyright.
10702 Then for the books still under copyright, you would need to locate
10703 the current copyright owners. How would you do that?
10706 Most people think that there must be a list of these copyright
10708 somewhere. Practical people think this way. How could there be
10709 thousands and thousands of government monopolies without there
10710 being at least a list?
10713 But there is no list. There may be a name from
1930, and then in
10714 1959, of the person who registered the copyright. But just think
10716 about how impossibly difficult it would be to track down
10718 of such records
—especially since the person who registered is
10719 not necessarily the current owner. And we're just talking about
1930!
10722 "But there isn't a list of who owns property generally," the
10723 apologists for the system respond. "Why should there be a list of
10727 Well, actually, if you think about it, there
<emphasis>are
</emphasis>
10728 plenty of lists of who owns what property. Think about deeds on
10729 houses, or titles to cars. And where there isn't a list, the code of
10730 real space is pretty good at suggesting who the owner of a bit of
10731 property is. (A swing set in your backyard is probably yours.) So
10732 formally or informally, we have a pretty good way to know who owns
10733 what tangible property.
10736 So: You walk down a street and see a house. You can know who
10737 owns the house by looking it up in the courthouse registry. If you see
10738 a car, there is ordinarily a license plate that will link the owner to the
10740 <!-- PAGE BREAK 230 -->
10741 car. If you see a bunch of children's toys sitting on the front lawn of a
10742 house, it's fairly easy to determine who owns the toys. And if you
10744 to see a baseball lying in a gutter on the side of the road, look
10745 around for a second for some kids playing ball. If you don't see any
10746 kids, then okay: Here's a bit of property whose owner we can't easily
10747 determine. It is the exception that proves the rule: that we ordinarily
10748 know quite well who owns what property.
10751 Compare this story to intangible property. You go into a library.
10752 The library owns the books. But who owns the copyrights? As I've
10754 described, there's no list of copyright owners. There are authors'
10755 names, of course, but their copyrights could have been assigned, or
10756 passed down in an estate like Grandma's old jewelry. To know who
10757 owns what, you would have to hire a private detective. The bottom
10758 line: The owner cannot easily be located. And in a regime like ours, in
10759 which it is a felony to use such property without the property owner's
10760 permission, the property isn't going to be used.
10763 The consequence with respect to old books is that they won't be
10764 digitized, and hence will simply rot away on shelves. But the
10766 for other creative works is much more dire.
10768 <indexterm><primary>Agee, Michael
</primary></indexterm>
10769 <indexterm><primary>Hal Roach Studios
</primary></indexterm>
10770 <indexterm><primary>Laurel and Hardy Films
</primary></indexterm>
10772 Consider the story of Michael Agee, chairman of Hal Roach Studios,
10773 which owns the copyrights for the Laurel and Hardy films. Agee is a
10774 direct beneficiary of the Bono Act. The Laurel and Hardy films were
10775 made between
1921 and
1951. Only one of these films,
<citetitle>The Lucky Dog
</citetitle>, is
10776 currently out of copyright. But for the CTEA, films made after
1923
10777 would have begun entering the public domain. Because Agee controls the
10778 exclusive rights for these popular films, he makes a great deal of
10779 money. According to one estimate, "Roach has sold about
60,
000
10780 videocassettes and
50,
000 DVDs of the duo's silent
10781 films."
<footnote><para>
10783 See David G. Savage, "High Court Scene of Showdown on Copyright Law,"
10784 <citetitle>Los Angeles Times
</citetitle>,
6 October
2002; David Streitfeld, "Classic Movies,
10785 Songs, Books at Stake; Supreme Court Hears Arguments Today on Striking
10786 Down Copyright Extension,"
<citetitle>Orlando Sentinel Tribune
</citetitle>,
9 October
2002.
10789 <indexterm><primary>Lucky Dog, The
</primary></indexterm>
10792 Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in
10793 this culture: selflessness. He argued in a brief before the Supreme
10794 Court that the Sonny Bono Copyright Term Extension Act will, if left
10795 standing, destroy a whole generation of American film.
10798 His argument is straightforward. A tiny fraction of this work has
10800 <!-- PAGE BREAK 231 -->
10801 any continuing commercial value. The rest
—to the extent it
10802 survives at all
—sits in vaults gathering dust. It may be that
10803 some of this work not now commercially valuable will be deemed to be
10804 valuable by the owners of the vaults. For this to occur, however, the
10805 commercial benefit from the work must exceed the costs of making the
10806 work available for distribution.
10809 We can't know the benefits, but we do know a lot about the costs.
10810 For most of the history of film, the costs of restoring film were very
10811 high; digital technology has lowered these costs substantially. While
10812 it cost more than $
10,
000 to restore a ninety-minute black-and-white
10813 film in
1993, it can now cost as little as $
100 to digitize one hour of
10814 mm film.
<footnote><para>
10816 Brief of Hal Roach Studios and Michael Agee as Amicus Curiae
10817 Supporting the Petitoners,
<citetitle>Eldred
</citetitle> v.
<citetitle>Ashcroft
</citetitle>,
537
10818 U.S.
186 (
2003) (No.
01-
618),
12. See also Brief of Amicus Curiae
10819 filed on behalf of Petitioners by the Internet Archive,
<citetitle>Eldred
</citetitle>
10820 v.
<citetitle>Ashcroft
</citetitle>, available at
10821 <ulink url=
"http://free-culture.cc/notes/">link #
53</ulink>.
10826 Restoration technology is not the only cost, nor the most
10828 Lawyers, too, are a cost, and increasingly, a very important one. In
10829 addition to preserving the film, a distributor needs to secure the rights.
10830 And to secure the rights for a film that is under copyright, you need to
10831 locate the copyright owner.
10834 Or more accurately,
<emphasis>owners
</emphasis>. As we've seen, there
10835 isn't only a single copyright associated with a film; there are
10836 many. There isn't a single person whom you can contact about those
10837 copyrights; there are as many as can hold the rights, which turns out
10838 to be an extremely large number. Thus the costs of clearing the rights
10839 to these films is exceptionally high.
10842 "But can't you just restore the film, distribute it, and then pay the
10843 copyright owner when she shows up?" Sure, if you want to commit a
10844 felony. And even if you're not worried about committing a felony, when
10845 she does show up, she'll have the right to sue you for all the profits you
10846 have made. So, if you're successful, you can be fairly confident you'll be
10847 getting a call from someone's lawyer. And if you're not successful, you
10848 won't make enough to cover the costs of your own lawyer. Either way,
10849 you have to talk to a lawyer. And as is too often the case, saying you have
10850 to talk to a lawyer is the same as saying you won't make any money.
10853 For some films, the benefit of releasing the film may well exceed
10855 <!-- PAGE BREAK 232 -->
10856 these costs. But for the vast majority of them, there is no way the
10858 would outweigh the legal costs. Thus, for the vast majority of old
10859 films, Agee argued, the film will not be restored and distributed until
10860 the copyright expires.
10863 But by the time the copyright for these films expires, the film will
10864 have expired. These films were produced on nitrate-based stock, and
10865 nitrate stock dissolves over time. They will be gone, and the metal
10867 in which they are now stored will be filled with nothing more
10871 Of all the creative work produced by humans anywhere, a tiny
10872 fraction has continuing commercial value. For that tiny fraction, the
10873 copyright is a crucially important legal device. For that tiny fraction,
10874 the copyright creates incentives to produce and distribute the
10876 work. For that tiny fraction, the copyright acts as an "engine of
10880 But even for that tiny fraction, the actual time during which the
10881 creative work has a commercial life is extremely short. As I've
10883 most books go out of print within one year. The same is true of
10884 music and film. Commercial culture is sharklike. It must keep moving.
10885 And when a creative work falls out of favor with the commercial
10887 the commercial life ends.
10890 Yet that doesn't mean the life of the creative work ends. We don't
10891 keep libraries of books in order to compete with Barnes
& Noble, and
10892 we don't have archives of films because we expect people to choose
10894 spending Friday night watching new movies and spending
10896 night watching a
1930 news documentary. The noncommercial life
10897 of culture is important and valuable
—for entertainment but also, and
10898 more importantly, for knowledge. To understand who we are, and
10899 where we came from, and how we have made the mistakes that we
10900 have, we need to have access to this history.
10903 Copyrights in this context do not drive an engine of free expression.
10905 <!-- PAGE BREAK 233 -->
10906 In this context, there is no need for an exclusive right. Copyrights in
10907 this context do no good.
10910 Yet, for most of our history, they also did little harm. For most of
10911 our history, when a work ended its commercial life, there was no
10912 <emphasis>copyright-related use
</emphasis> that would be inhibited by
10913 an exclusive right. When a book went out of print, you could not buy
10914 it from a publisher. But you could still buy it from a used book
10915 store, and when a used book store sells it, in America, at least,
10916 there is no need to pay the copyright owner anything. Thus, the
10917 ordinary use of a book after its commercial life ended was a use that
10918 was independent of copyright law.
10921 The same was effectively true of film. Because the costs of restoring
10922 a film
—the real economic costs, not the lawyer costs
—were
10923 so high, it was never at all feasible to preserve or restore
10924 film. Like the remains of a great dinner, when it's over, it's
10925 over. Once a film passed out of its commercial life, it may have been
10926 archived for a bit, but that was the end of its life so long as the
10927 market didn't have more to offer.
10930 In other words, though copyright has been relatively short for most
10931 of our history, long copyrights wouldn't have mattered for the works
10932 that lost their commercial value. Long copyrights for these works
10933 would not have interfered with anything.
10936 But this situation has now changed.
10939 One crucially important consequence of the emergence of digital
10940 technologies is to enable the archive that Brewster Kahle dreams of.
10941 Digital technologies now make it possible to preserve and give access
10942 to all sorts of knowledge. Once a book goes out of print, we can now
10943 imagine digitizing it and making it available to everyone,
10944 forever. Once a film goes out of distribution, we could digitize it
10945 and make it available to everyone, forever. Digital technologies give
10946 new life to copyrighted material after it passes out of its commercial
10947 life. It is now possible to preserve and assure universal access to
10948 this knowledge and culture, whereas before it was not.
10951 <!-- PAGE BREAK 234 -->
10952 And now copyright law does get in the way. Every step of producing
10953 this digital archive of our culture infringes on the exclusive right
10954 of copyright. To digitize a book is to copy it. To do that requires
10955 permission of the copyright owner. The same with music, film, or any
10956 other aspect of our culture protected by copyright. The effort to make
10957 these things available to history, or to researchers, or to those who
10958 just want to explore, is now inhibited by a set of rules that were
10959 written for a radically different context.
10962 Here is the core of the harm that comes from extending terms: Now that
10963 technology enables us to rebuild the library of Alexandria, the law
10964 gets in the way. And it doesn't get in the way for any useful
10965 <emphasis>copyright
</emphasis> purpose, for the purpose of copyright
10966 is to enable the commercial market that spreads culture. No, we are
10967 talking about culture after it has lived its commercial life. In this
10968 context, copyright is serving no purpose
<emphasis>at all
</emphasis>
10969 related to the spread of knowledge. In this context, copyright is not
10970 an engine of free expression. Copyright is a brake.
10973 You may well ask, "But if digital technologies lower the costs for
10974 Brewster Kahle, then they will lower the costs for Random House, too.
10975 So won't Random House do as well as Brewster Kahle in spreading
10979 Maybe. Someday. But there is absolutely no evidence to suggest that
10980 publishers would be as complete as libraries. If Barnes
& Noble
10981 offered to lend books from its stores for a low price, would that
10982 eliminate the need for libraries? Only if you think that the only role
10983 of a library is to serve what "the market" would demand. But if you
10984 think the role of a library is bigger than this
—if you think its
10985 role is to archive culture, whether there's a demand for any
10986 particular bit of that culture or not
—then we can't count on the
10987 commercial market to do our library work for us.
10990 I would be the first to agree that it should do as much as it can: We
10991 should rely upon the market as much as possible to spread and enable
10992 culture. My message is absolutely not antimarket. But where we see the
10993 market is not doing the job, then we should allow nonmarket forces the
10995 <!-- PAGE BREAK 235 -->
10996 freedom to fill the gaps. As one researcher calculated for American
10997 culture,
94 percent of the films, books, and music produced between
10998 and
1946 is not commercially available. However much you love the
10999 commercial market, if access is a value, then
6 percent is a failure
11000 to provide that value.
<footnote><para>
11002 Jason Schultz, "The Myth of the
1976 Copyright `Chaos' Theory,"
20
11003 December
2002, available at
11004 <ulink url=
"http://free-culture.cc/notes/">link #
54</ulink>.
11009 In January
1999, we filed a lawsuit on Eric Eldred's behalf in federal
11010 district court in Washington, D.C., asking the court to declare the
11011 Sonny Bono Copyright Term Extension Act unconstitutional. The two
11012 central claims that we made were (
1) that extending existing terms
11013 violated the Constitution's "limited Times" requirement, and (
2) that
11014 extending terms by another twenty years violated the First Amendment.
11017 The district court dismissed our claims without even hearing an
11018 argument. A panel of the Court of Appeals for the D.C. Circuit also
11019 dismissed our claims, though after hearing an extensive argument. But
11020 that decision at least had a dissent, by one of the most conservative
11021 judges on that court. That dissent gave our claims life.
11024 Judge David Sentelle said the CTEA violated the requirement that
11025 copyrights be for "limited Times" only. His argument was as elegant as
11026 it was simple: If Congress can extend existing terms, then there is no
11027 "stopping point" to Congress's power under the Copyright Clause. The
11028 power to extend existing terms means Congress is not required to grant
11029 terms that are "limited." Thus, Judge Sentelle argued, the court had
11030 to interpret the term "limited Times" to give it meaning. And the best
11031 interpretation, Judge Sentelle argued, would be to deny Congress the
11032 power to extend existing terms.
11035 We asked the Court of Appeals for the D.C. Circuit as a whole to
11036 hear the case. Cases are ordinarily heard in panels of three, except for
11037 important cases or cases that raise issues specific to the circuit as a
11038 whole, where the court will sit "en banc" to hear the case.
11041 The Court of Appeals rejected our request to hear the case en banc.
11042 This time, Judge Sentelle was joined by the most liberal member of the
11044 <!-- PAGE BREAK 236 -->
11045 D.C. Circuit, Judge David Tatel. Both the most conservative and the
11046 most liberal judges in the D.C. Circuit believed Congress had
11047 overstepped its bounds.
11050 It was here that most expected Eldred v. Ashcroft would die, for the
11051 Supreme Court rarely reviews any decision by a court of appeals. (It
11052 hears about one hundred cases a year, out of more than five thousand
11053 appeals.) And it practically never reviews a decision that upholds a
11054 statute when no other court has yet reviewed the statute.
11057 But in February
2002, the Supreme Court surprised the world by
11058 granting our petition to review the D.C. Circuit opinion. Argument
11059 was set for October of
2002. The summer would be spent writing
11060 briefs and preparing for argument.
11063 It is over a year later as I write these words. It is still
11064 astonishingly hard. If you know anything at all about this story, you
11065 know that we lost the appeal. And if you know something more than just
11066 the minimum, you probably think there was no way this case could have
11067 been won. After our defeat, I received literally thousands of missives
11068 by well-wishers and supporters, thanking me for my work on behalf of
11069 this noble but doomed cause. And none from this pile was more
11070 significant to me than the e-mail from my client, Eric Eldred.
11073 But my client and these friends were wrong. This case could have
11074 been won. It should have been won. And no matter how hard I try to
11075 retell this story to myself, I can never escape believing that my own
11078 <indexterm><primary>Steward, Geoffrey
</primary></indexterm>
11080 The mistake was made early, though it became obvious only at the very
11081 end. Our case had been supported from the very beginning by an
11082 extraordinary lawyer, Geoffrey Stewart, and by the law firm he had
11083 moved to, Jones, Day, Reavis and Pogue. Jones Day took a great deal of
11085 <!-- PAGE BREAK 237 -->
11086 from its copyright-protectionist clients for supporting us. They
11087 ignored this pressure (something that few law firms today would ever
11088 do), and throughout the case, they gave it everything they could.
11090 <indexterm><primary>Ayer, Don
</primary></indexterm>
11091 <indexterm><primary>Bromberg, Dan
</primary></indexterm>
11092 <indexterm><primary>Steward, Geoffrey
</primary></indexterm>
11094 There were three key lawyers on the case from Jones Day. Geoff
11095 Stewart was the first, but then Dan Bromberg and Don Ayer became
11096 quite involved. Bromberg and Ayer in particular had a common view
11097 about how this case would be won: We would only win, they repeatedly
11098 told me, if we could make the issue seem "important" to the Supreme
11099 Court. It had to seem as if dramatic harm were being done to free
11100 speech and free culture; otherwise, they would never vote against "the
11101 most powerful media companies in the world."
11104 I hate this view of the law. Of course I thought the Sonny Bono Act
11105 was a dramatic harm to free speech and free culture. Of course I still
11106 think it is. But the idea that the Supreme Court decides the law based
11107 on how important they believe the issues are is just wrong. It might be
11108 "right" as in "true," I thought, but it is "wrong" as in "it just shouldn't be
11109 that way." As I believed that any faithful interpretation of what the
11110 framers of our Constitution did would yield the conclusion that the
11111 CTEA was unconstitutional, and as I believed that any faithful
11113 of what the First Amendment means would yield the
11114 conclusion that the power to extend existing copyright terms is
11116 I was not persuaded that we had to sell our case like soap.
11117 Just as a law that bans the swastika is unconstitutional not because the
11118 Court likes Nazis but because such a law would violate the
11120 so too, in my view, would the Court decide whether Congress's
11121 law was constitutional based on the Constitution, not based on whether
11122 they liked the values that the framers put in the Constitution.
11125 In any case, I thought, the Court must already see the danger and
11126 the harm caused by this sort of law. Why else would they grant review?
11127 There was no reason to hear the case in the Supreme Court if they
11128 weren't convinced that this regulation was harmful. So in my view, we
11129 didn't need to persuade them that this law was bad, we needed to show
11130 why it was unconstitutional.
11133 There was one way, however, in which I felt politics would matter
11135 <!-- PAGE BREAK 238 -->
11136 and in which I thought a response was appropriate. I was convinced
11137 that the Court would not hear our arguments if it thought these were
11138 just the arguments of a group of lefty loons. This Supreme Court was
11139 not about to launch into a new field of judicial review if it seemed
11140 that this field of review was simply the preference of a small
11141 political minority. Although my focus in the case was not to
11142 demonstrate how bad the Sonny Bono Act was but to demonstrate that it
11143 was unconstitutional, my hope was to make this argument against a
11144 background of briefs that covered the full range of political
11145 views. To show that this claim against the CTEA was grounded in
11146 <emphasis>law
</emphasis> and not politics, then, we tried to gather
11147 the widest range of credible critics
—credible not because they
11148 were rich and famous, but because they, in the aggregate, demonstrated
11149 that this law was unconstitutional regardless of one's politics.
11152 The first step happened all by itself. Phyllis Schlafly's
11153 organization, Eagle Forum, had been an opponent of the CTEA from the
11154 very beginning. Mrs. Schlafly viewed the CTEA as a sellout by
11155 Congress. In November
1998, she wrote a stinging editorial attacking
11156 the Republican Congress for allowing the law to pass. As she wrote,
11157 "Do you sometimes wonder why bills that create a financial windfall to
11158 narrow special interests slide easily through the intricate
11159 legislative process, while bills that benefit the general public seem
11160 to get bogged down?" The answer, as the editorial documented, was the
11161 power of money. Schlafly enumerated Disney's contributions to the key
11162 players on the committees. It was money, not justice, that gave Mickey
11163 Mouse twenty more years in Disney's control, Schlafly argued.
11164 <indexterm><primary>Eagle Forum
</primary></indexterm>
11165 <indexterm><primary>Schlafly, Phyllis
</primary></indexterm>
11168 In the Court of Appeals, Eagle Forum was eager to file a brief
11169 supporting our position. Their brief made the argument that became the
11170 core claim in the Supreme Court: If Congress can extend the term of
11171 existing copyrights, there is no limit to Congress's power to set
11172 terms. That strong conservative argument persuaded a strong
11173 conservative judge, Judge Sentelle.
11176 In the Supreme Court, the briefs on our side were about as diverse as
11177 it gets. They included an extraordinary historical brief by the Free
11179 <!-- PAGE BREAK 239 -->
11180 Software Foundation (home of the GNU project that made GNU/ Linux
11181 possible). They included a powerful brief about the costs of
11182 uncertainty by Intel. There were two law professors' briefs, one by
11183 copyright scholars and one by First Amendment scholars. There was an
11184 exhaustive and uncontroverted brief by the world's experts in the
11185 history of the Progress Clause. And of course, there was a new brief
11186 by Eagle Forum, repeating and strengthening its arguments.
11187 <indexterm><primary>GNU/Linux operating system
</primary></indexterm>
11188 <indexterm><primary>Intel
</primary></indexterm>
11189 <indexterm><primary>Linux operating system
</primary></indexterm>
11190 <indexterm><primary>Eagle Forum
</primary></indexterm>
11193 Those briefs framed a legal argument. Then to support the legal
11194 argument, there were a number of powerful briefs by libraries and
11195 archives, including the Internet Archive, the American Association of
11196 Law Libraries, and the National Writers Union.
11197 <indexterm><primary>American Association of Law Libraries
</primary></indexterm>
11198 <indexterm><primary>National Writers Union
</primary></indexterm>
11200 <indexterm><primary>Hal Roach Studios
</primary></indexterm>
11202 But two briefs captured the policy argument best. One made the
11203 argument I've already described: A brief by Hal Roach Studios argued
11204 that unless the law was struck, a whole generation of American film
11205 would disappear. The other made the economic argument absolutely
11208 <indexterm><primary>Akerlof, George
</primary></indexterm>
11209 <indexterm><primary>Arrow, Kenneth
</primary></indexterm>
11210 <indexterm><primary>Buchanan, James
</primary></indexterm>
11211 <indexterm><primary>Coase, Ronald
</primary></indexterm>
11212 <indexterm><primary>Friedman, Milton
</primary></indexterm>
11214 This economists' brief was signed by seventeen economists, including
11215 five Nobel Prize winners, including Ronald Coase, James Buchanan,
11216 Milton Friedman, Kenneth Arrow, and George Akerlof. The economists, as
11217 the list of Nobel winners demonstrates, spanned the political
11218 spectrum. Their conclusions were powerful: There was no plausible
11219 claim that extending the terms of existing copyrights would do
11220 anything to increase incentives to create. Such extensions were
11221 nothing more than "rent-seeking"
—the fancy term economists use
11222 to describe special-interest legislation gone wild.
11225 The same effort at balance was reflected in the legal team we gathered
11226 to write our briefs in the case. The Jones Day lawyers had been with
11227 us from the start. But when the case got to the Supreme Court, we
11228 added three lawyers to help us frame this argument to this Court: Alan
11229 Morrison, a lawyer from Public Citizen, a Washington group that had
11230 made constitutional history with a series of seminal victories in the
11231 Supreme Court defending individual rights; my colleague and dean,
11232 Kathleen Sullivan, who had argued many cases in the Court, and
11234 <!-- PAGE BREAK 240 -->
11235 who had advised us early on about a First Amendment strategy; and
11236 finally, former solicitor general Charles Fried.
11237 <indexterm><primary>Fried, Charles
</primary></indexterm>
11238 <indexterm><primary>Morrison, Alan
</primary></indexterm>
11239 <indexterm><primary>Public Citizen
</primary></indexterm>
11240 <indexterm><primary>Reagan, Ronald
</primary></indexterm>
11243 Fried was a special victory for our side. Every other former solicitor
11244 general was hired by the other side to defend Congress's power to give
11245 media companies the special favor of extended copyright terms. Fried
11246 was the only one who turned down that lucrative assignment to stand up
11247 for something he believed in. He had been Ronald Reagan's chief lawyer
11248 in the Supreme Court. He had helped craft the line of cases that
11249 limited Congress's power in the context of the Commerce Clause. And
11250 while he had argued many positions in the Supreme Court that I
11251 personally disagreed with, his joining the cause was a vote of
11252 confidence in our argument.
11253 <indexterm><primary>Fried, Charles
</primary></indexterm>
11256 The government, in defending the statute, had its collection of
11257 friends, as well. Significantly, however, none of these "friends" included
11258 historians or economists. The briefs on the other side of the case were
11259 written exclusively by major media companies, congressmen, and
11263 The media companies were not surprising. They had the most to gain
11264 from the law. The congressmen were not surprising either
—they
11265 were defending their power and, indirectly, the gravy train of
11266 contributions such power induced. And of course it was not surprising
11267 that the copyright holders would defend the idea that they should
11268 continue to have the right to control who did what with content they
11272 Dr. Seuss's representatives, for example, argued that it was
11273 better for the Dr. Seuss estate to control what happened to
11274 Dr. Seuss's work
— better than allowing it to fall into the
11275 public domain
—because if this creativity were in the public
11276 domain, then people could use it to "glorify drugs or to create
11277 pornography."
<footnote><para>
11279 Brief of Amici Dr. Seuss Enterprise et al.,
<citetitle>Eldred
</citetitle> v.
<citetitle>Ashcroft
</citetitle>,
537
11280 U.S. (
2003) (No.
01-
618),
19.
11282 That was also the motive of the Gershwin estate, which defended its
11283 "protection" of the work of George Gershwin. They refuse, for example,
11284 to license
<citetitle>Porgy and Bess
</citetitle> to anyone who refuses to use African
11285 Americans in the cast.
<footnote><para>
11287 Dinitia Smith, "Immortal Words, Immortal Royalties? Even Mickey
11288 Mouse Joins the Fray,"
<citetitle>New York Times
</citetitle>,
28 March
1998, B7.
11291 <!-- PAGE BREAK 241 -->
11292 their view of how this part of American culture should be controlled,
11293 and they wanted this law to help them effect that control.
11294 <indexterm><primary>Gershwin, George
</primary></indexterm>
11297 This argument made clear a theme that is rarely noticed in this
11298 debate. When Congress decides to extend the term of existing
11299 copyrights, Congress is making a choice about which speakers it will
11300 favor. Famous and beloved copyright owners, such as the Gershwin
11301 estate and Dr. Seuss, come to Congress and say, "Give us twenty years
11302 to control the speech about these icons of American culture. We'll do
11303 better with them than anyone else." Congress of course likes to reward
11304 the popular and famous by giving them what they want. But when
11305 Congress gives people an exclusive right to speak in a certain way,
11306 that's just what the First Amendment is traditionally meant to block.
11309 We argued as much in a final brief. Not only would upholding the CTEA
11310 mean that there was no limit to the power of Congress to extend
11311 copyrights
—extensions that would further concentrate the market;
11312 it would also mean that there was no limit to Congress's power to play
11313 favorites, through copyright, with who has the right to speak.
11314 Between February and October, there was little I did beyond preparing
11315 for this case. Early on, as I said, I set the strategy.
11317 <indexterm><primary>Rehnquist, William H.
</primary></indexterm>
11319 The Supreme Court was divided into two important camps. One camp we
11320 called "the Conservatives." The other we called "the Rest." The
11321 Conservatives included Chief Justice Rehnquist, Justice O'Connor,
11322 Justice Scalia, Justice Kennedy, and Justice Thomas. These five had
11323 been the most consistent in limiting Congress's power. They were the
11324 five who had supported the
<citetitle>Lopez/Morrison
</citetitle> line
11325 of cases that said that an enumerated power had to be interpreted to
11326 assure that Congress's powers had limits.
11328 <indexterm><primary>Breyer, Stephen
</primary></indexterm>
11330 The Rest were the four Justices who had strongly opposed limits on
11331 Congress's power. These four
—Justice Stevens, Justice Souter,
11332 Justice Ginsburg, and Justice Breyer
—had repeatedly argued that
11334 <!-- PAGE BREAK 242 -->
11335 gives Congress broad discretion to decide how best to implement its
11336 powers. In case after case, these justices had argued that the Court's
11337 role should be one of deference. Though the votes of these four
11338 justices were the votes that I personally had most consistently agreed
11339 with, they were also the votes that we were least likely to get.
11342 In particular, the least likely was Justice Ginsburg's. In addition to
11343 her general view about deference to Congress (except where issues of
11344 gender are involved), she had been particularly deferential in the
11345 context of intellectual property protections. She and her daughter (an
11346 excellent and well-known intellectual property scholar) were cut from
11347 the same intellectual property cloth. We expected she would agree with
11348 the writings of her daughter: that Congress had the power in this
11349 context to do as it wished, even if what Congress wished made little
11352 <indexterm><primary>Breyer, Stephen
</primary></indexterm>
11354 Close behind Justice Ginsburg were two justices whom we also viewed as
11355 unlikely allies, though possible surprises. Justice Souter strongly
11356 favored deference to Congress, as did Justice Breyer. But both were
11357 also very sensitive to free speech concerns. And as we strongly
11358 believed, there was a very important free speech argument against
11359 these retrospective extensions.
11362 The only vote we could be confident about was that of Justice
11363 Stevens. History will record Justice Stevens as one of the greatest
11364 judges on this Court. His votes are consistently eclectic, which just
11365 means that no simple ideology explains where he will stand. But he
11366 had consistently argued for limits in the context of intellectual property
11367 generally. We were fairly confident he would recognize limits here.
11370 This analysis of "the Rest" showed most clearly where our focus had to
11371 be: on the Conservatives. To win this case, we had to crack open these
11372 five and get at least a majority to go our way. Thus, the single
11373 overriding argument that animated our claim rested on the
11374 Conservatives' most important jurisprudential innovation
—the
11375 argument that Judge Sentelle had relied upon in the Court of Appeals,
11376 that Congress's power must be interpreted so that its enumerated
11377 powers have limits.
11380 This then was the core of our strategy
—a strategy for which I am
11381 responsible. We would get the Court to see that just as with the
11382 <citetitle>Lopez
</citetitle>
11383 <!-- PAGE BREAK 243 -->
11384 case, under the government's argument here, Congress would always have
11385 unlimited power to extend existing terms. If anything was plain about
11386 Congress's power under the Progress Clause, it was that this power was
11387 supposed to be "limited." Our aim would be to get the Court to
11388 reconcile
<citetitle>Eldred
</citetitle> with
11389 <citetitle>Lopez
</citetitle>: If Congress's power to regulate commerce
11390 was limited, then so, too, must Congress's power to regulate copyright
11394 The argument on the government's side came down to this: Congress has
11395 done it before. It should be allowed to do it again. The government
11396 claimed that from the very beginning, Congress has been extending the
11397 term of existing copyrights. So, the government argued, the Court
11398 should not now say that practice is unconstitutional.
11401 There was some truth to the government's claim, but not much. We
11402 certainly agreed that Congress had extended existing terms in
11403 and in
1909. And of course, in
1962, Congress began extending
11405 terms regularly
—eleven times in forty years.
11408 But this "consistency" should be kept in perspective. Congress
11410 existing terms once in the first hundred years of the Republic.
11411 It then extended existing terms once again in the next fifty. Those rare
11412 extensions are in contrast to the now regular practice of extending
11414 terms. Whatever restraint Congress had had in the past, that
11416 was now gone. Congress was now in a cycle of extensions; there
11417 was no reason to expect that cycle would end. This Court had not
11419 to intervene where Congress was in a similar cycle of extension.
11420 There was no reason it couldn't intervene here.
11421 Oral argument was scheduled for the first week in October. I
11423 in D.C. two weeks before the argument. During those two
11424 weeks, I was repeatedly "mooted" by lawyers who had volunteered to
11426 <!-- PAGE BREAK 244 -->
11427 help in the case. Such "moots" are basically practice rounds, where
11428 wannabe justices fire questions at wannabe winners.
11431 I was convinced that to win, I had to keep the Court focused on a
11432 single point: that if this extension is permitted, then there is no limit to
11433 the power to set terms. Going with the government would mean that
11434 terms would be effectively unlimited; going with us would give
11436 a clear line to follow: Don't extend existing terms. The moots
11437 were an effective practice; I found ways to take every question back to
11440 <indexterm><primary>Ayer, Don
</primary></indexterm>
11441 <indexterm><primary>Reagan, Ronald
</primary></indexterm>
11443 One moot was before the lawyers at Jones Day. Don Ayer was the
11444 skeptic. He had served in the Reagan Justice Department with Solicitor
11445 General Charles Fried. He had argued many cases before the Supreme
11446 Court. And in his review of the moot, he let his concern speak:
11447 <indexterm><primary>Fried, Charles
</primary></indexterm>
11450 "I'm just afraid that unless they really see the harm, they won't be
11451 willing to upset this practice that the government says has been a
11452 consistent practice for two hundred years. You have to make them see
11453 the harm
—passionately get them to see the harm. For if they
11454 don't see that, then we haven't any chance of winning."
11456 <indexterm><primary>Ayer, Don
</primary></indexterm>
11458 He may have argued many cases before this Court, I thought, but
11459 he didn't understand its soul. As a clerk, I had seen the Justices do the
11460 right thing
—not because of politics but because it was right. As a law
11461 professor, I had spent my life teaching my students that this Court
11462 does the right thing
—not because of politics but because it is right. As
11463 I listened to Ayer's plea for passion in pressing politics, I understood
11464 his point, and I rejected it. Our argument was right. That was enough.
11465 Let the politicians learn to see that it was also good.
11466 The night before the argument, a line of people began to form
11467 in front of the Supreme Court. The case had become a focus of the
11468 press and of the movement to free culture. Hundreds stood in line
11470 <!-- PAGE BREAK 245 -->
11471 for the chance to see the proceedings. Scores spent the night on the
11472 Supreme Court steps so that they would be assured a seat.
11475 Not everyone has to wait in line. People who know the Justices can
11476 ask for seats they control. (I asked Justice Scalia's chambers for seats for
11477 my parents, for example.) Members of the Supreme Court bar can get
11478 a seat in a special section reserved for them. And senators and
11480 have a special place where they get to sit, too. And finally, of
11481 course, the press has a gallery, as do clerks working for the Justices on
11482 the Court. As we entered that morning, there was no place that was
11483 not taken. This was an argument about intellectual property law, yet
11484 the halls were filled. As I walked in to take my seat at the front of the
11485 Court, I saw my parents sitting on the left. As I sat down at the table,
11486 I saw Jack Valenti sitting in the special section ordinarily reserved for
11487 family of the Justices.
11490 When the Chief Justice called me to begin my argument, I began
11491 where I intended to stay: on the question of the limits on Congress's
11492 power. This was a case about enumerated powers, I said, and whether
11493 those enumerated powers had any limit.
11496 Justice O'Connor stopped me within one minute of my opening.
11497 The history was bothering her.
11501 justice o'connor: Congress has extended the term so often
11502 through the years, and if you are right, don't we run the risk of
11503 upsetting previous extensions of time? I mean, this seems to be a
11504 practice that began with the very first act.
11508 She was quite willing to concede "that this flies directly in the face
11509 of what the framers had in mind." But my response again and again
11510 was to emphasize limits on Congress's power.
11514 mr. lessig: Well, if it flies in the face of what the framers had in
11515 mind, then the question is, is there a way of interpreting their
11516 <!-- PAGE BREAK 246 -->
11517 words that gives effect to what they had in mind, and the answer
11522 There were two points in this argument when I should have seen
11523 where the Court was going. The first was a question by Justice
11524 Kennedy, who observed,
11528 justice kennedy: Well, I suppose implicit in the argument that
11529 the '
76 act, too, should have been declared void, and that we
11530 might leave it alone because of the disruption, is that for all these
11531 years the act has impeded progress in science and the useful arts.
11532 I just don't see any empirical evidence for that.
11536 Here follows my clear mistake. Like a professor correcting a
11542 mr. lessig: Justice, we are not making an empirical claim at all.
11543 Nothing in our Copyright Clause claim hangs upon the empirical
11544 assertion about impeding progress. Our only argument is this is a
11545 structural limit necessary to assure that what would be an effectively
11546 perpetual term not be permitted under the copyright laws.
11549 <indexterm><primary>Ayer, Don
</primary></indexterm>
11551 That was a correct answer, but it wasn't the right answer. The right
11552 answer was instead that there was an obvious and profound harm. Any
11553 number of briefs had been written about it. He wanted to hear it. And
11554 here was the place Don Ayer's advice should have mattered. This was a
11555 softball; my answer was a swing and a miss.
11558 The second came from the Chief, for whom the whole case had been
11559 crafted. For the Chief Justice had crafted the
<citetitle>Lopez
</citetitle> ruling,
11560 and we hoped that he would see this case as its second cousin.
11563 It was clear a second into his question that he wasn't at all
11564 sympathetic. To him, we were a bunch of anarchists. As he asked:
11566 <!-- PAGE BREAK 247 -->
11570 chief justice: Well, but you want more than that. You want the
11571 right to copy verbatim other people's books, don't you?
11574 mr. lessig: We want the right to copy verbatim works that
11575 should be in the public domain and would be in the public
11577 but for a statute that cannot be justified under ordinary First
11578 Amendment analysis or under a proper reading of the limits built
11579 into the Copyright Clause.
11583 Things went better for us when the government gave its argument;
11584 for now the Court picked up on the core of our claim. As Justice Scalia
11585 asked Solicitor General Olson,
11589 justice scalia: You say that the functional equivalent of an unlimited
11590 time would be a violation [of the Constitution], but that's precisely
11591 the argument that's being made by petitioners here, that a limited
11592 time which is extendable is the functional equivalent of an unlimited
11597 When Olson was finished, it was my turn to give a closing rebuttal.
11598 Olson's flailing had revived my anger. But my anger still was directed
11599 to the academic, not the practical. The government was arguing as if
11600 this were the first case ever to consider limits on Congress's
11601 Copyright and Patent Clause power. Ever the professor and not the
11602 advocate, I closed by pointing out the long history of the Court
11603 imposing limits on Congress's power in the name of the Copyright and
11604 Patent Clause
— indeed, the very first case striking a law of
11605 Congress as exceeding a specific enumerated power was based upon the
11606 Copyright and Patent Clause. All true. But it wasn't going to move the
11610 As I left the court that day, I knew there were a hundred points I
11611 wished I could remake. There were a hundred questions I wished I had
11613 <!-- PAGE BREAK 248 -->
11614 answered differently. But one way of thinking about this case left me
11618 The government had been asked over and over again, what is the limit?
11619 Over and over again, it had answered there is no limit. This was
11620 precisely the answer I wanted the Court to hear. For I could not
11621 imagine how the Court could understand that the government believed
11622 Congress's power was unlimited under the terms of the Copyright
11623 Clause, and sustain the government's argument. The solicitor general
11624 had made my argument for me. No matter how often I tried, I could not
11625 understand how the Court could find that Congress's power under the
11626 Commerce Clause was limited, but under the Copyright Clause,
11627 unlimited. In those rare moments when I let myself believe that we may
11628 have prevailed, it was because I felt this Court
—in particular,
11629 the Conservatives
—would feel itself constrained by the rule of
11630 law that it had established elsewhere.
11633 The morning of January
15,
2003, I was five minutes late to the office
11634 and missed the
7:
00 A.M. call from the Supreme Court clerk. Listening to
11635 the message, I could tell in an instant that she had bad news to report.The
11636 Supreme Court had affirmed the decision of the Court of Appeals. Seven
11637 justices had voted in the majority. There were two dissents.
11640 A few seconds later, the opinions arrived by e-mail. I took the
11641 phone off the hook, posted an announcement to our blog, and sat
11642 down to see where I had been wrong in my reasoning.
11645 My
<emphasis>reasoning
</emphasis>. Here was a case that pitted all the
11646 money in the world against
<emphasis>reasoning
</emphasis>. And here
11647 was the last naïve law professor, scouring the pages, looking for
11651 I first scoured the opinion, looking for how the Court would
11652 distinguish the principle in this case from the principle in
11653 <citetitle>Lopez
</citetitle>. The argument was nowhere to be found. The case was not even
11654 cited. The argument that was the core argument of our case did not
11655 even appear in the Court's opinion.
11659 <!-- PAGE BREAK 249 -->
11660 Justice Ginsburg simply ignored the enumerated powers argument.
11661 Consistent with her view that Congress's power was not limited
11662 generally, she had found Congress's power not limited here.
11665 Her opinion was perfectly reasonable
—for her, and for Justice
11666 Souter. Neither believes in
<citetitle>Lopez
</citetitle>. It would be too much to expect them
11667 to write an opinion that recognized, much less explained, the doctrine
11668 they had worked so hard to defeat.
11671 But as I realized what had happened, I couldn't quite believe what I
11672 was reading. I had said there was no way this Court could reconcile
11673 limited powers with the Commerce Clause and unlimited powers with the
11674 Progress Clause. It had never even occurred to me that they could
11675 reconcile the two simply
<emphasis>by not addressing the
11676 argument
</emphasis>. There was no inconsistency because they would not
11677 talk about the two together. There was therefore no principle that
11678 followed from the
<citetitle>Lopez
</citetitle> case: In that context, Congress's power would
11679 be limited, but in this context it would not.
11682 Yet by what right did they get to choose which of the framers' values
11683 they would respect? By what right did they
—the silent
11684 five
—get to select the part of the Constitution they would
11685 enforce based on the values they thought important? We were right back
11686 to the argument that I said I hated at the start: I had failed to
11687 convince them that the issue here was important, and I had failed to
11688 recognize that however much I might hate a system in which the Court
11689 gets to pick the constitutional values that it will respect, that is
11690 the system we have.
11692 <indexterm><primary>Breyer, Stephen
</primary></indexterm>
11694 Justices Breyer and Stevens wrote very strong dissents. Stevens's
11695 opinion was crafted internal to the law: He argued that the tradition
11696 of intellectual property law should not support this unjustified
11697 extension of terms. He based his argument on a parallel analysis that
11698 had governed in the context of patents (so had we). But the rest of
11699 the Court discounted the parallel
—without explaining how the
11700 very same words in the Progress Clause could come to mean totally
11701 different things depending upon whether the words were about patents
11702 or copyrights. The Court let Justice Stevens's charge go unanswered.
11704 <indexterm><primary>Breyer, Stephen
</primary></indexterm>
11706 <!-- PAGE BREAK 250 -->
11707 Justice Breyer's opinion, perhaps the best opinion he has ever
11708 written, was external to the Constitution. He argued that the term of
11709 copyrights has become so long as to be effectively unlimited. We had
11710 said that under the current term, a copyright gave an author
99.8
11711 percent of the value of a perpetual term. Breyer said we were wrong,
11712 that the actual number was
99.9997 percent of a perpetual term. Either
11713 way, the point was clear: If the Constitution said a term had to be
11714 "limited," and the existing term was so long as to be effectively
11715 unlimited, then it was unconstitutional.
11718 These two justices understood all the arguments we had made. But
11719 because neither believed in the
<citetitle>Lopez
</citetitle> case, neither was willing to push
11720 it as a reason to reject this extension. The case was decided without
11721 anyone having addressed the argument that we had carried from Judge
11722 Sentelle. It was
<citetitle>Hamlet
</citetitle> without the Prince.
11725 Defeat brings depression. They say it is a sign of health when
11726 depression gives way to anger. My anger came quickly, but it didn't cure
11727 the depression. This anger was of two sorts.
11730 It was first anger with the five "Conservatives." It would have been
11731 one thing for them to have explained why the principle of
<citetitle>Lopez
</citetitle> didn't
11732 apply in this case. That wouldn't have been a very convincing
11733 argument, I don't believe, having read it made by others, and having
11734 tried to make it myself. But it at least would have been an act of
11735 integrity. These justices in particular have repeatedly said that the
11736 proper mode of interpreting the Constitution is "originalism"
—to
11737 first understand the framers' text, interpreted in their context, in
11738 light of the structure of the Constitution. That method had produced
11739 <citetitle>Lopez
</citetitle> and many other "originalist" rulings. Where was their
11743 Here, they had joined an opinion that never once tried to explain
11744 what the framers had meant by crafting the Progress Clause as they
11745 did; they joined an opinion that never once tried to explain how the
11746 structure of that clause would affect the interpretation of Congress's
11748 <!-- PAGE BREAK 251 -->
11749 power. And they joined an opinion that didn't even try to explain why
11750 this grant of power could be unlimited, whereas the Commerce Clause
11751 would be limited. In short, they had joined an opinion that did not
11752 apply to, and was inconsistent with, their own method for interpreting
11753 the Constitution. This opinion may well have yielded a result that
11754 they liked. It did not produce a reason that was consistent with their
11758 My anger with the Conservatives quickly yielded to anger with
11760 For I had let a view of the law that I liked interfere with a view of
11763 <indexterm><primary>Ayer, Don
</primary></indexterm>
11765 Most lawyers, and most law professors, have little patience for
11766 idealism about courts in general and this Supreme Court in particular.
11767 Most have a much more pragmatic view. When Don Ayer said that this
11768 case would be won based on whether I could convince the Justices that
11769 the framers' values were important, I fought the idea, because I
11770 didn't want to believe that that is how this Court decides. I insisted
11771 on arguing this case as if it were a simple application of a set of
11772 principles. I had an argument that followed in logic. I didn't need
11773 to waste my time showing it should also follow in popularity.
11776 As I read back over the transcript from that argument in October, I
11777 can see a hundred places where the answers could have taken the
11778 conversation in different directions, where the truth about the harm
11779 that this unchecked power will cause could have been made clear to
11780 this Court. Justice Kennedy in good faith wanted to be shown. I,
11781 idiotically, corrected his question. Justice Souter in good faith
11782 wanted to be shown the First Amendment harms. I, like a math teacher,
11783 reframed the question to make the logical point. I had shown them how
11784 they could strike this law of Congress if they wanted to. There were a
11785 hundred places where I could have helped them want to, yet my
11786 stubbornness, my refusal to give in, stopped me. I have stood before
11787 hundreds of audiences trying to persuade; I have used passion in that
11788 effort to persuade; but I
11789 <!-- PAGE BREAK 252 -->
11790 refused to stand before this audience and try to persuade with the
11791 passion I had used elsewhere. It was not the basis on which a court
11792 should decide the issue.
11794 <indexterm><primary>Ayer, Don
</primary></indexterm>
11796 Would it have been different if I had argued it differently? Would it
11797 have been different if Don Ayer had argued it? Or Charles Fried? Or
11799 <indexterm><primary>Fried, Charles
</primary></indexterm>
11802 My friends huddled around me to insist it would not. The Court
11803 was not ready, my friends insisted. This was a loss that was destined. It
11804 would take a great deal more to show our society why our framers were
11805 right. And when we do that, we will be able to show that Court.
11808 Maybe, but I doubt it. These Justices have no financial interest in
11809 doing anything except the right thing. They are not lobbied. They have
11810 little reason to resist doing right. I can't help but think that if I had
11811 stepped down from this pretty picture of dispassionate justice, I could
11815 And even if I couldn't, then that doesn't excuse what happened in
11816 January. For at the start of this case, one of America's leading
11817 intellectual property professors stated publicly that my bringing this
11818 case was a mistake. "The Court is not ready," Peter Jaszi said; this
11819 issue should not be raised until it is.
11820 <indexterm><primary>Jaszi, Peter
</primary></indexterm>
11823 After the argument and after the decision, Peter said to me, and
11824 publicly, that he was wrong. But if indeed that Court could not have
11825 been persuaded, then that is all the evidence that's needed to know that
11826 here again Peter was right. Either I was not ready to argue this case in
11827 a way that would do some good or they were not ready to hear this case
11828 in a way that would do some good. Either way, the decision to bring
11829 this case
—a decision I had made four years before
—was wrong.
11830 While the reaction to the Sonny Bono Act itself was almost
11831 unanimously negative, the reaction to the Court's decision was mixed.
11832 No one, at least in the press, tried to say that extending the term of
11833 copyright was a good idea. We had won that battle over ideas. Where
11835 <!-- PAGE BREAK 253 -->
11836 the decision was praised, it was praised by papers that had been
11837 skeptical of the Court's activism in other cases. Deference was a good
11838 thing, even if it left standing a silly law. But where the decision
11839 was attacked, it was attacked because it left standing a silly and
11840 harmful law.
<citetitle>The New York Times
</citetitle> wrote in its editorial,
11844 In effect, the Supreme Court's decision makes it likely that we are
11845 seeing the beginning of the end of public domain and the birth of
11846 copyright perpetuity. The public domain has been a grand experiment,
11847 one that should not be allowed to die. The ability to draw freely on
11848 the entire creative output of humanity is one of the reasons we live
11849 in a time of such fruitful creative ferment.
11853 The best responses were in the cartoons. There was a gaggle of
11854 hilarious images
—of Mickey in jail and the like. The best, from
11855 my view of the case, was Ruben Bolling's, reproduced on the next page
11856 (
<xref linkend=
"fig-18"/>). The "powerful and wealthy" line is a bit
11857 unfair. But the punch in the face felt exactly like that.
11858 <indexterm><primary>Bolling, Ruben
</primary></indexterm>
11860 <figure id=
"fig-18">
11861 <title>Tom the Dancing Bug cartoon
</title>
11862 <graphic fileref=
"images/18.png"></graphic>
11863 <indexterm><primary>Bolling, Ruben
</primary></indexterm>
11866 The image that will always stick in my head is that evoked by the
11867 quote from
<citetitle>The New York Times
</citetitle>. That "grand experiment" we call the
11868 "public domain" is over? When I can make light of it, I think, "Honey,
11869 I shrunk the Constitution." But I can rarely make light of it. We had
11870 in our Constitution a commitment to free culture. In the case that I
11871 fathered, the Supreme Court effectively renounced that commitment. A
11872 better lawyer would have made them see differently.
11874 <!-- PAGE BREAK 254 -->
11876 <chapter label=
"14" id=
"eldred-ii">
11877 <title>CHAPTER FOURTEEN: Eldred II
</title>
11879 The day
<citetitle>Eldred
</citetitle> was decided, fate would have it that I was to travel to
11880 Washington, D.C. (The day the rehearing petition in
<citetitle>Eldred
</citetitle> was
11881 denied
—meaning the case was really finally over
—fate would
11882 have it that I was giving a speech to technologists at Disney World.)
11883 This was a particularly long flight to my least favorite city. The
11884 drive into the city from Dulles was delayed because of traffic, so I
11885 opened up my computer and wrote an op-ed piece.
11887 <indexterm><primary>Ayer, Don
</primary></indexterm>
11889 It was an act of contrition. During the whole of the flight from San
11890 Francisco to Washington, I had heard over and over again in my head
11891 the same advice from Don Ayer: You need to make them see why it is
11892 important. And alternating with that command was the question of
11893 Justice Kennedy: "For all these years the act has impeded progress in
11894 science and the useful arts. I just don't see any empirical evidence for
11895 that." And so, having failed in the argument of constitutional principle,
11896 finally, I turned to an argument of politics.
11899 <citetitle>The New York Times
</citetitle> published the piece. In it, I proposed a simple
11900 fix: Fifty years after a work has been published, the copyright owner
11901 <!-- PAGE BREAK 256 -->
11902 would be required to register the work and pay a small fee. If he paid
11903 the fee, he got the benefit of the full term of copyright. If he did not,
11904 the work passed into the public domain.
11907 We called this the Eldred Act, but that was just to give it a name.
11908 Eric Eldred was kind enough to let his name be used once again, but as
11909 he said early on, it won't get passed unless it has another name.
11912 Or another two names. For depending upon your perspective, this
11913 is either the "Public Domain Enhancement Act" or the "Copyright
11914 Term Deregulation Act." Either way, the essence of the idea is clear
11915 and obvious: Remove copyright where it is doing nothing except
11916 blocking access and the spread of knowledge. Leave it for as long as
11917 Congress allows for those works where its worth is at least $
1. But for
11918 everything else, let the content go.
11920 <indexterm><primary>Forbes, Steve
</primary></indexterm>
11922 The reaction to this idea was amazingly strong. Steve Forbes endorsed
11923 it in an editorial. I received an avalanche of e-mail and letters
11924 expressing support. When you focus the issue on lost creativity,
11925 people can see the copyright system makes no sense. As a good
11926 Republican might say, here government regulation is simply getting in
11927 the way of innovation and creativity. And as a good Democrat might
11928 say, here the government is blocking access and the spread of
11929 knowledge for no good reason. Indeed, there is no real difference
11930 between Democrats and Republicans on this issue. Anyone can recognize
11931 the stupid harm of the present system.
11934 Indeed, many recognized the obvious benefit of the registration
11935 requirement. For one of the hardest things about the current system
11936 for people who want to license content is that there is no obvious
11937 place to look for the current copyright owners. Since registration is
11938 not required, since marking content is not required, since no
11939 formality at all is required, it is often impossibly hard to locate
11940 copyright owners to ask permission to use or license their work. This
11941 system would lower these costs, by establishing at least one registry
11942 where copyright owners could be identified.
11944 <indexterm><primary>Berlin Act (
1908)
</primary></indexterm>
11945 <indexterm><primary>Berne Convention (
1908)
</primary></indexterm>
11947 <!-- PAGE BREAK 257 -->
11948 As I described in chapter
<xref xrefstyle=
"select: labelnumber"
11949 linkend=
"property-i"/>, formalities in copyright law were
11950 removed in
1976, when Congress followed the Europeans by abandoning
11951 any formal requirement before a copyright is granted.
<footnote><para>
11953 Until the
1908 Berlin Act of the Berne Convention, national copyright
11954 legislation sometimes made protection depend upon compliance with
11955 formalities such as registration, deposit, and affixation of notice of
11956 the author's claim of copyright. However, starting with the
1908 act,
11957 every text of the Convention has provided that "the enjoyment and the
11958 exercise" of rights guaranteed by the Convention "shall not be subject
11959 to any formality." The prohibition against formalities is presently
11960 embodied in Article
5(
2) of the Paris Text of the Berne
11961 Convention. Many countries continue to impose some form of deposit or
11962 registration requirement, albeit not as a condition of
11963 copyright. French law, for example, requires the deposit of copies of
11964 works in national repositories, principally the National Museum.
11965 Copies of books published in the United Kingdom must be deposited in
11966 the British Library. The German Copyright Act provides for a Registrar
11967 of Authors where the author's true name can be filed in the case of
11968 anonymous or pseudonymous works. Paul Goldstein,
<citetitle>International
11969 Intellectual Property Law, Cases and Materials
</citetitle> (New York: Foundation
11970 Press,
2001),
153–54.
</para></footnote>
11971 The Europeans are said to view copyright as a "natural right." Natural
11972 rights don't need forms to exist. Traditions, like the Anglo-American
11973 tradition that required copyright owners to follow form if their
11974 rights were to be protected, did not, the Europeans thought, properly
11975 respect the dignity of the author. My right as a creator turns on my
11976 creativity, not upon the special favor of the government.
11979 That's great rhetoric. It sounds wonderfully romantic. But it is
11980 absurd copyright policy. It is absurd especially for authors, because
11981 a world without formalities harms the creator. The ability to spread
11982 "Walt Disney creativity" is destroyed when there is no simple way to
11983 know what's protected and what's not.
11985 <indexterm><primary>Berne Convention (
1908)
</primary></indexterm>
11987 The fight against formalities achieved its first real victory in
11988 Berlin in
1908. International copyright lawyers amended the Berne
11989 Convention in
1908, to require copyright terms of life plus fifty
11990 years, as well as the abolition of copyright formalities. The
11991 formalities were hated because the stories of inadvertent loss were
11992 increasingly common. It was as if a Charles Dickens character ran all
11993 copyright offices, and the failure to dot an
<citetitle>i
</citetitle> or cross a
11994 <citetitle>t
</citetitle> resulted in the loss of widows' only income.
11997 These complaints were real and sensible. And the strictness of the
11998 formalities, especially in the United States, was absurd. The law
11999 should always have ways of forgiving innocent mistakes. There is no
12000 reason copyright law couldn't, as well. Rather than abandoning
12001 formalities totally, the response in Berlin should have been to
12002 embrace a more equitable system of registration.
12005 Even that would have been resisted, however, because registration
12006 in the nineteenth and twentieth centuries was still expensive. It was
12007 also a hassle. The abolishment of formalities promised not only to save
12008 the starving widows, but also to lighten an unnecessary regulatory
12010 imposed upon creators.
12013 In addition to the practical complaint of authors in
1908, there was
12014 a moral claim as well. There was no reason that creative property
12016 <!-- PAGE BREAK 258 -->
12017 should be a second-class form of property. If a carpenter builds a
12018 table, his rights over the table don't depend upon filing a form with
12019 the government. He has a property right over the table "naturally,"
12020 and he can assert that right against anyone who would steal the table,
12021 whether or not he has informed the government of his ownership of the
12025 This argument is correct, but its implications are misleading. For the
12026 argument in favor of formalities does not depend upon creative
12027 property being second-class property. The argument in favor of
12028 formalities turns upon the special problems that creative property
12029 presents. The law of formalities responds to the special physics of
12030 creative property, to assure that it can be efficiently and fairly
12034 No one thinks, for example, that land is second-class property just
12035 because you have to register a deed with a court if your sale of land
12036 is to be effective. And few would think a car is second-class property
12037 just because you must register the car with the state and tag it with
12038 a license. In both of those cases, everyone sees that there is an
12039 important reason to secure registration
—both because it makes
12040 the markets more efficient and because it better secures the rights of
12041 the owner. Without a registration system for land, landowners would
12042 perpetually have to guard their property. With registration, they can
12043 simply point the police to a deed. Without a registration system for
12044 cars, auto theft would be much easier. With a registration system, the
12045 thief has a high burden to sell a stolen car. A slight burden is
12046 placed on the property owner, but those burdens produce a much better
12047 system of protection for property generally.
12050 It is similarly special physics that makes formalities important in
12051 copyright law. Unlike a carpenter's table, there's nothing in nature that
12052 makes it relatively obvious who might own a particular bit of creative
12053 property. A recording of Lyle Lovett's latest album can exist in a billion
12054 places without anything necessarily linking it back to a particular
12055 owner. And like a car, there's no way to buy and sell creative property
12056 with confidence unless there is some simple way to authenticate who is
12057 the author and what rights he has. Simple transactions are destroyed in
12059 <!-- PAGE BREAK 259 -->
12060 a world without formalities. Complex, expensive,
12061 <emphasis>lawyer
</emphasis> transactions take their place.
12062 <indexterm><primary>Lovett, Lyle
</primary></indexterm>
12065 This was the understanding of the problem with the Sonny Bono
12066 Act that we tried to demonstrate to the Court. This was the part it
12067 didn't "get." Because we live in a system without formalities, there is no
12068 way easily to build upon or use culture from our past. If copyright
12069 terms were, as Justice Story said they would be, "short," then this
12070 wouldn't matter much. For fourteen years, under the framers' system, a
12071 work would be presumptively controlled. After fourteen years, it would
12072 be presumptively uncontrolled.
12075 But now that copyrights can be just about a century long, the
12076 inability to know what is protected and what is not protected becomes
12077 a huge and obvious burden on the creative process. If the only way a
12078 library can offer an Internet exhibit about the New Deal is to hire a
12079 lawyer to clear the rights to every image and sound, then the
12080 copyright system is burdening creativity in a way that has never been
12081 seen before
<emphasis>because there are no formalities
</emphasis>.
12084 The Eldred Act was designed to respond to exactly this problem. If
12085 it is worth $
1 to you, then register your work and you can get the
12086 longer term. Others will know how to contact you and, therefore, how
12087 to get your permission if they want to use your work. And you will get
12088 the benefit of an extended copyright term.
12091 If it isn't worth it to you to register to get the benefit of an extended
12092 term, then it shouldn't be worth it for the government to defend your
12093 monopoly over that work either. The work should pass into the public
12094 domain where anyone can copy it, or build archives with it, or create a
12095 movie based on it. It should become free if it is not worth $
1 to you.
12098 Some worry about the burden on authors. Won't the burden of
12099 registering the work mean that the $
1 is really misleading? Isn't the
12100 hassle worth more than $
1? Isn't that the real problem with
12104 It is. The hassle is terrible. The system that exists now is awful. I
12105 completely agree that the Copyright Office has done a terrible job (no
12106 doubt because they are terribly funded) in enabling simple and cheap
12108 <!-- PAGE BREAK 260 -->
12109 registrations. Any real solution to the problem of formalities must
12110 address the real problem of
<emphasis>governments
</emphasis> standing
12111 at the core of any system of formalities. In this book, I offer such a
12112 solution. That solution essentially remakes the Copyright Office. For
12113 now, assume it was Amazon that ran the registration system. Assume it
12114 was one-click registration. The Eldred Act would propose a simple,
12115 one-click registration fifty years after a work was published. Based
12116 upon historical data, that system would move up to
98 percent of
12117 commercial work, commercial work that no longer had a commercial life,
12118 into the public domain within fifty years. What do you think?
12120 <indexterm><primary>Forbes, Steve
</primary></indexterm>
12122 When Steve Forbes endorsed the idea, some in Washington began to pay
12123 attention. Many people contacted me pointing to representatives who
12124 might be willing to introduce the Eldred Act. And I had a few who
12125 directly suggested that they might be willing to take the first step.
12128 One representative, Zoe Lofgren of California, went so far as to get
12129 the bill drafted. The draft solved any problem with international
12130 law. It imposed the simplest requirement upon copyright owners
12131 possible. In May
2003, it looked as if the bill would be
12132 introduced. On May
16, I posted on the Eldred Act blog, "we are
12133 close." There was a general reaction in the blog community that
12134 something good might happen here.
12135 <indexterm><primary>Lofgren, Zoe
</primary></indexterm>
12138 But at this stage, the lobbyists began to intervene. Jack Valenti and
12139 the MPAA general counsel came to the congresswoman's office to give
12140 the view of the MPAA. Aided by his lawyer, as Valenti told me, Valenti
12141 informed the congresswoman that the MPAA would oppose the Eldred
12142 Act. The reasons are embarrassingly thin. More importantly, their
12143 thinness shows something clear about what this debate is really about.
12146 The MPAA argued first that Congress had "firmly rejected the central
12147 concept in the proposed bill"
—that copyrights be renewed. That
12148 was true, but irrelevant, as Congress's "firm rejection" had occurred
12149 <!-- PAGE BREAK 261 -->
12150 long before the Internet made subsequent uses much more likely.
12151 Second, they argued that the proposal would harm poor copyright
12152 owners
—apparently those who could not afford the $
1 fee. Third,
12153 they argued that Congress had determined that extending a copyright
12154 term would encourage restoration work. Maybe in the case of the small
12155 percentage of work covered by copyright law that is still commercially
12156 valuable, but again this was irrelevant, as the proposal would not cut
12157 off the extended term unless the $
1 fee was not paid. Fourth, the MPAA
12158 argued that the bill would impose "enormous" costs, since a
12159 registration system is not free. True enough, but those costs are
12160 certainly less than the costs of clearing the rights for a copyright
12161 whose owner is not known. Fifth, they worried about the risks if the
12162 copyright to a story underlying a film were to pass into the public
12163 domain. But what risk is that? If it is in the public domain, then the
12164 film is a valid derivative use.
12167 Finally, the MPAA argued that existing law enabled copyright owners to
12168 do this if they wanted. But the whole point is that there are
12169 thousands of copyright owners who don't even know they have a
12170 copyright to give. Whether they are free to give away their copyright
12171 or not
—a controversial claim in any case
—unless they know
12172 about a copyright, they're not likely to.
12175 At the beginning of this book, I told two stories about the law
12176 reacting to changes in technology. In the one, common sense prevailed.
12177 In the other, common sense was delayed. The difference between the two
12178 stories was the power of the opposition
—the power of the side
12179 that fought to defend the status quo. In both cases, a new technology
12180 threatened old interests. But in only one case did those interest's
12181 have the power to protect themselves against this new competitive
12185 I used these two cases as a way to frame the war that this book has
12186 been about. For here, too, a new technology is forcing the law to react.
12187 And here, too, we should ask, is the law following or resisting common
12188 sense? If common sense supports the law, what explains this common
12193 <!-- PAGE BREAK 262 -->
12194 When the issue is piracy, it is right for the law to back the
12195 copyright owners. The commercial piracy that I described is wrong and
12196 harmful, and the law should work to eliminate it. When the issue is
12197 p2p sharing, it is easy to understand why the law backs the owners
12198 still: Much of this sharing is wrong, even if much is harmless. When
12199 the issue is copyright terms for the Mickey Mouses of the world, it is
12200 possible still to understand why the law favors Hollywood: Most people
12201 don't recognize the reasons for limiting copyright terms; it is thus
12202 still possible to see good faith within the resistance.
12205 But when the copyright owners oppose a proposal such as the Eldred
12206 Act, then, finally, there is an example that lays bare the naked
12207 selfinterest driving this war. This act would free an extraordinary
12208 range of content that is otherwise unused. It wouldn't interfere with
12209 any copyright owner's desire to exercise continued control over his
12210 content. It would simply liberate what Kevin Kelly calls the "Dark
12211 Content" that fills archives around the world. So when the warriors
12212 oppose a change like this, we should ask one simple question:
12213 <indexterm><primary>Kelly, Kevin
</primary></indexterm>
12216 What does this industry really want?
12219 With very little effort, the warriors could protect their content. So
12220 the effort to block something like the Eldred Act is not really about
12221 protecting
<emphasis>their
</emphasis> content. The effort to block the
12222 Eldred Act is an effort to assure that nothing more passes into the
12223 public domain. It is another step to assure that the public domain
12224 will never compete, that there will be no use of content that is not
12225 commercially controlled, and that there will be no commercial use of
12226 content that doesn't require
<emphasis>their
</emphasis> permission
12230 The opposition to the Eldred Act reveals how extreme the other side
12231 is. The most powerful and sexy and well loved of lobbies really has as
12232 its aim not the protection of "property" but the rejection of a
12233 tradition. Their aim is not simply to protect what is
12234 theirs.
<emphasis>Their aim is to assure that all there is is what is
12238 It is not hard to understand why the warriors take this view. It is not
12239 hard to see why it would benefit them if the competition of the public
12241 <!-- PAGE BREAK 263 -->
12242 domain tied to the Internet could somehow be quashed. Just as RCA
12243 feared the competition of FM, they fear the competition of a public
12244 domain connected to a public that now has the means to create with it
12245 and to share its own creation.
12247 <indexterm><primary>Causby, Thomas Lee
</primary></indexterm>
12248 <indexterm><primary>Causby, Tinie
</primary></indexterm>
12250 What is hard to understand is why the public takes this view. It is
12251 as if the law made airplanes trespassers. The MPAA stands with the
12252 Causbys and demands that their remote and useless property rights be
12253 respected, so that these remote and forgotten copyright holders might
12254 block the progress of others.
12257 All this seems to follow easily from this untroubled acceptance of the
12258 "property" in intellectual property. Common sense supports it, and so
12259 long as it does, the assaults will rain down upon the technologies of
12260 the Internet. The consequence will be an increasing "permission
12261 society." The past can be cultivated only if you can identify the
12262 owner and gain permission to build upon his work. The future will be
12263 controlled by this dead (and often unfindable) hand of the past.
12265 <!-- PAGE BREAK 264 -->
12268 <chapter label=
"15" id=
"c-conclusion">
12269 <title>CONCLUSION
</title>
12271 There are more than
35 million people with the AIDS virus
12272 worldwide. Twenty-five million of them live in sub-Saharan Africa.
12273 Seventeen million have already died. Seventeen million Africans
12274 is proportional percentage-wise to seven million Americans. More
12275 importantly, it is seventeen million Africans.
12278 There is no cure for AIDS, but there are drugs to slow its
12279 progression. These antiretroviral therapies are still experimental,
12280 but they have already had a dramatic effect. In the United States,
12281 AIDS patients who regularly take a cocktail of these drugs increase
12282 their life expectancy by ten to twenty years. For some, the drugs make
12283 the disease almost invisible.
12286 These drugs are expensive. When they were first introduced in the
12287 United States, they cost between $
10,
000 and $
15,
000 per person per
12288 year. Today, some cost $
25,
000 per year. At these prices, of course, no
12289 African nation can afford the drugs for the vast majority of its
12291 $
15,
000 is thirty times the per capita gross national product of
12292 Zimbabwe. At these prices, the drugs are totally unavailable.
<footnote><para>
12293 <!-- f1. --> Commission on Intellectual Property Rights, "Final Report: Integrating
12294 Intellectual Property Rights and Development Policy" (London,
2002),
12296 <ulink url=
"http://free-culture.cc/notes/">link #
55</ulink>. According to a World Health Organization press
12298 issued
9 July
2002, only
230,
000 of the
6 million who need drugs in
12299 the developing world receive them
—and half of them are in Brazil.
12303 <!-- PAGE BREAK 265 -->
12304 These prices are not high because the ingredients of the drugs are
12305 expensive. These prices are high because the drugs are protected by
12306 patents. The drug companies that produced these life-saving mixes
12307 enjoy at least a twenty-year monopoly for their inventions. They use
12308 that monopoly power to extract the most they can from the market. That
12309 power is in turn used to keep the prices high.
12312 There are many who are skeptical of patents, especially drug
12313 patents. I am not. Indeed, of all the areas of research that might be
12314 supported by patents, drug research is, in my view, the clearest case
12315 where patents are needed. The patent gives the drug company some
12316 assurance that if it is successful in inventing a new drug to treat a
12317 disease, it will be able to earn back its investment and more. This is
12318 socially an extremely valuable incentive. I am the last person who
12319 would argue that the law should abolish it, at least without other
12323 But it is one thing to support patents, even drug patents. It is
12324 another thing to determine how best to deal with a crisis. And as
12325 African leaders began to recognize the devastation that AIDS was
12326 bringing, they started looking for ways to import HIV treatments at
12327 costs significantly below the market price.
12330 In
1997, South Africa tried one tack. It passed a law to allow the
12331 importation of patented medicines that had been produced or sold in
12332 another nation's market with the consent of the patent owner. For
12333 example, if the drug was sold in India, it could be imported into
12334 Africa from India. This is called "parallel importation," and it is
12335 generally permitted under international trade law and is specifically
12336 permitted within the European Union.
<footnote>
12339 See Peter Drahos with John Braithwaite,
<citetitle>Information Feudalism: Who
12340 Owns the Knowledge Economy?
</citetitle> (New York: The New Press,
2003),
37.
12341 <indexterm><primary>Braithwaite, John
</primary></indexterm>
12342 <indexterm><primary>Drahos, Peter
</primary></indexterm>
12346 However, the United States government opposed the bill. Indeed, more
12347 than opposed. As the International Intellectual Property Association
12348 characterized it, "The U.S. government pressured South Africa
…
12349 not to permit compulsory licensing or parallel
12350 imports."
<footnote><para>
12352 International Intellectual Property Institute (IIPI),
<citetitle>Patent
12353 Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
12354 Africa, a Report Prepared for the World Intellectual Property
12355 Organization
</citetitle> (Washington, D.C.,
2000),
14, available at
12356 <ulink url=
"http://free-culture.cc/notes/">link #
56</ulink>. For a
12357 firsthand account of the struggle over South Africa, see Hearing
12358 Before the Subcommittee on Criminal Justice, Drug Policy, and Human
12359 Resources, House Committee on Government Reform, H. Rep.,
1st sess.,
12360 Ser. No.
106-
126 (
22 July
1999),
150–57 (statement of James
12363 Through the Office of the United States Trade Representative, the
12364 government asked South Africa to change the law
—and to add
12365 pressure to that request, in
1998, the USTR listed South Africa for
12366 possible trade sanctions.
12367 <!-- PAGE BREAK 266 -->
12368 That same year, more than forty pharmaceutical companies began
12369 proceedings in the South African courts to challenge the government's
12370 actions. The United States was then joined by other governments from
12371 the EU. Their claim, and the claim of the pharmaceutical companies,
12372 was that South Africa was violating its obligations under
12373 international law by discriminating against a particular kind of
12374 patent
— pharmaceutical patents. The demand of these governments,
12375 with the United States in the lead, was that South Africa respect
12376 these patents as it respects any other patent, regardless of any
12377 effect on the treatment of AIDS within South Africa.
<footnote><para>
12379 International Intellectual Property Institute (IIPI),
<citetitle>Patent
12380 Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
12381 Africa, a Report Prepared for the World Intellectual Property
12382 Organization
</citetitle> (Washington, D.C.,
2000),
15.
</para></footnote>
12385 We should place the intervention by the United States in context. No
12386 doubt patents are not the most important reason that Africans don't
12387 have access to drugs. Poverty and the total absence of an effective
12388 health care infrastructure matter more. But whether patents are the
12389 most important reason or not, the price of drugs has an effect on
12390 their demand, and patents affect price. And so, whether massive or
12391 marginal, there was an effect from our government's intervention to
12392 stop the flow of medications into Africa.
12395 By stopping the flow of HIV treatment into Africa, the United
12396 States government was not saving drugs for United States citizens.
12397 This is not like wheat (if they eat it, we can't); instead, the flow that the
12398 United States intervened to stop was, in effect, a flow of knowledge:
12399 information about how to take chemicals that exist within Africa, and
12400 turn those chemicals into drugs that would save
15 to
30 million lives.
12403 Nor was the intervention by the United States going to protect the
12404 profits of United States drug companies
—at least, not substantially. It
12405 was not as if these countries were in the position to buy the drugs for
12406 the prices the drug companies were charging. Again, the Africans are
12407 wildly too poor to afford these drugs at the offered prices. Stopping the
12408 parallel import of these drugs would not substantially increase the sales
12412 Instead, the argument in favor of restricting this flow of
12413 information, which was needed to save the lives of millions, was an
12415 <!-- PAGE BREAK 267 -->
12416 about the sanctity of property.
<footnote><para>
12418 See Sabin Russell, "New Crusade to Lower AIDS Drug Costs: Africa's
12419 Needs at Odds with Firms' Profit Motive,"
<citetitle>San Francisco Chronicle
</citetitle>,
24
12420 May
1999, A1, available at
12421 <ulink url=
"http://free-culture.cc/notes/">link #
57</ulink>
12422 ("compulsory licenses and gray markets pose a threat to the entire
12423 system of intellectual property protection"); Robert Weissman, "AIDS
12424 and Developing Countries: Democratizing Access to Essential
12425 Medicines,"
<citetitle>Foreign Policy in Focus
</citetitle> 4:
23 (August
1999), available at
12426 <ulink url=
"http://free-culture.cc/notes/">link #
58</ulink>
12427 (describing U.S. policy); John A. Harrelson, "TRIPS, Pharmaceutical
12428 Patents, and the HIV/AIDS Crisis: Finding the Proper Balance Between
12429 Intellectual Property Rights and Compassion, a Synopsis,"
<citetitle>Widener Law
12430 Symposium Journal
</citetitle> (Spring
2001):
175.
12431 <!-- PAGE BREAK 333 -->
12433 It was because "intellectual property" would be violated that these
12434 drugs should not flow into Africa. It was a principle about the
12435 importance of "intellectual property" that led these government actors
12436 to intervene against the South African response to AIDS.
12439 Now just step back for a moment. There will be a time thirty years
12440 from now when our children look back at us and ask, how could we have
12441 let this happen? How could we allow a policy to be pursued whose
12442 direct cost would be to speed the death of
15 to
30 million Africans,
12443 and whose only real benefit would be to uphold the "sanctity" of an
12444 idea? What possible justification could there ever be for a policy
12445 that results in so many deaths? What exactly is the insanity that
12446 would allow so many to die for such an abstraction?
12449 Some blame the drug companies. I don't. They are corporations.
12450 Their managers are ordered by law to make money for the corporation.
12451 They push a certain patent policy not because of ideals, but because it is
12452 the policy that makes them the most money. And it only makes them the
12453 most money because of a certain corruption within our political system
—
12454 a corruption the drug companies are certainly not responsible for.
12457 The corruption is our own politicians' failure of integrity. For the
12458 drug companies would love
—they say, and I believe them
—to
12459 sell their drugs as cheaply as they can to countries in Africa and
12460 elsewhere. There are issues they'd have to resolve to make sure the
12461 drugs didn't get back into the United States, but those are mere
12462 problems of technology. They could be overcome.
12465 A different problem, however, could not be overcome. This is the
12466 fear of the grandstanding politician who would call the presidents of
12467 the drug companies before a Senate or House hearing, and ask, "How
12468 is it you can sell this HIV drug in Africa for only $
1 a pill, but the same
12469 drug would cost an American $
1,
500?" Because there is no "sound
12470 bite" answer to that question, its effect would be to induce regulation
12471 of prices in America. The drug companies thus avoid this spiral by
12472 avoiding the first step. They reinforce the idea that property should be
12473 <!-- PAGE BREAK 268 -->
12474 sacred. They adopt a rational strategy in an irrational context, with the
12475 unintended consequence that perhaps millions die. And that rational
12476 strategy thus becomes framed in terms of this ideal
—the sanctity of an
12477 idea called "intellectual property."
12480 So when the common sense of your child confronts you, what will
12481 you say? When the common sense of a generation finally revolts
12482 against what we have done, how will we justify what we have done?
12483 What is the argument?
12486 A sensible patent policy could endorse and strongly support the patent
12487 system without having to reach everyone everywhere in exactly the same
12488 way. Just as a sensible copyright policy could endorse and strongly
12489 support a copyright system without having to regulate the spread of
12490 culture perfectly and forever, a sensible patent policy could endorse
12491 and strongly support a patent system without having to block the
12492 spread of drugs to a country not rich enough to afford market prices
12493 in any case. A sensible policy, in other words, could be a balanced
12494 policy. For most of our history, both copyright and patent policies
12495 were balanced in just this sense.
12498 But we as a culture have lost this sense of balance. We have lost the
12499 critical eye that helps us see the difference between truth and
12500 extremism. A certain property fundamentalism, having no connection to
12501 our tradition, now reigns in this culture
—bizarrely, and with
12502 consequences more grave to the spread of ideas and culture than almost
12503 any other single policy decision that we as a democracy will make. A
12504 simple idea blinds us, and under the cover of darkness, much happens
12505 that most of us would reject if any of us looked. So uncritically do
12506 we accept the idea of property in ideas that we don't even notice how
12507 monstrous it is to deny ideas to a people who are dying without
12508 them. So uncritically do we accept the idea of property in culture
12509 that we don't even question when the control of that property removes
12511 <!-- PAGE BREAK 269 -->
12512 ability, as a people, to develop our culture democratically. Blindness
12513 becomes our common sense. And the challenge for anyone who would
12514 reclaim the right to cultivate our culture is to find a way to make
12515 this common sense open its eyes.
12518 So far, common sense sleeps. There is no revolt. Common sense
12519 does not yet see what there could be to revolt about. The extremism
12520 that now dominates this debate fits with ideas that seem natural, and
12521 that fit is reinforced by the RCAs of our day. They wage a frantic war
12522 to fight "piracy," and devastate a culture for creativity. They defend
12523 the idea of "creative property," while transforming real creators into
12524 modern-day sharecroppers. They are insulted by the idea that rights
12525 should be balanced, even though each of the major players in this
12526 content war was itself a beneficiary of a more balanced ideal. The
12527 hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even
12528 noticed. Powerful lobbies, complex issues, and MTV attention spans
12529 produce the "perfect storm" for free culture.
12531 <indexterm><primary>Reagan, Ronald
</primary></indexterm>
12533 In August
2003, a fight broke out in the United States about a
12534 decision by the World Intellectual Property Organization to cancel a
12535 meeting.
<footnote><para>
12536 <!-- f6. --> Jonathan Krim, "The Quiet War over Open-Source,"
<citetitle>Washington Post
</citetitle>,
12537 August
2003, E1, available at
12538 <ulink url=
"http://free-culture.cc/notes/">link #
59</ulink>; William New, "Global Group's
12539 Shift on `Open Source' Meeting Spurs Stir,"
<citetitle>National Journal's Technology
12540 Daily
</citetitle>,
19 August
2003, available at
12541 <ulink url=
"http://free-culture.cc/notes/">link #
60</ulink>; William New, "U.S. Official
12542 Opposes `Open Source' Talks at WIPO,"
<citetitle>National Journal's Technology
12543 Daily
</citetitle>,
19 August
2003, available at
12544 <ulink url=
"http://free-culture.cc/notes/">link #
61</ulink>.
12546 At the request of a wide range of interests, WIPO had decided to hold
12547 a meeting to discuss "open and collaborative projects to create public
12548 goods." These are projects that have been successful in producing
12549 public goods without relying exclusively upon a proprietary use of
12550 intellectual property. Examples include the Internet and the World
12551 Wide Web, both of which were developed on the basis of protocols in
12552 the public domain. It included an emerging trend to support open
12553 academic journals, including the Public Library of Science project
12554 that I describe in the Afterword. It included a project to develop
12555 single nucleotide polymorphisms (SNPs), which are thought to have
12556 great significance in biomedical research. (That nonprofit project
12557 comprised a consortium of the Wellcome Trust and pharmaceutical and
12558 technological companies, including Amersham Biosciences, AstraZeneca,
12559 <!-- PAGE BREAK 270 -->
12560 Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche,
12561 Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It
12562 included the Global Positioning System, which Ronald Reagan set free
12563 in the early
1980s. And it included "open source and free software."
12564 <indexterm><primary>academic journals
</primary></indexterm>
12565 <indexterm><primary>IBM
</primary></indexterm>
12566 <indexterm><primary>PLoS (Public Library of Science)
</primary></indexterm>
12569 The aim of the meeting was to consider this wide range of projects
12570 from one common perspective: that none of these projects relied upon
12571 intellectual property extremism. Instead, in all of them, intellectual
12572 property was balanced by agreements to keep access open or to impose
12573 limitations on the way in which proprietary claims might be used.
12576 From the perspective of this book, then, the conference was ideal.
<footnote><para>
12577 <!-- f7. --> I should disclose that I was one of the people who asked WIPO for the
12580 The projects within its scope included both commercial and
12581 noncommercial work. They primarily involved science, but from many
12582 perspectives. And WIPO was an ideal venue for this discussion, since
12583 WIPO is the preeminent international body dealing with intellectual
12587 Indeed, I was once publicly scolded for not recognizing this fact
12588 about WIPO. In February
2003, I delivered a keynote address to a
12589 preparatory conference for the World Summit on the Information Society
12590 (WSIS). At a press conference before the address, I was asked what I
12591 would say. I responded that I would be talking a little about the
12592 importance of balance in intellectual property for the development of
12593 an information society. The moderator for the event then promptly
12594 interrupted to inform me and the assembled reporters that no question
12595 about intellectual property would be discussed by WSIS, since those
12596 questions were the exclusive domain of WIPO. In the talk that I had
12597 prepared, I had actually made the issue of intellectual property
12598 relatively minor. But after this astonishing statement, I made
12599 intellectual property the sole focus of my talk. There was no way to
12600 talk about an "Information Society" unless one also talked about the
12601 range of information and culture that would be free. My talk did not
12602 make my immoderate moderator very happy. And she was no doubt correct
12603 that the scope of intellectual property protections was ordinarily the
12605 <!-- PAGE BREAK 271 -->
12606 WIPO. But in my view, there couldn't be too much of a conversation
12607 about how much intellectual property is needed, since in my view, the
12608 very idea of balance in intellectual property had been lost.
12611 So whether or not WSIS can discuss balance in intellectual property, I
12612 had thought it was taken for granted that WIPO could and should. And
12613 thus the meeting about "open and collaborative projects to create
12614 public goods" seemed perfectly appropriate within the WIPO agenda.
12617 But there is one project within that list that is highly
12618 controversial, at least among lobbyists. That project is "open source
12619 and free software." Microsoft in particular is wary of discussion of
12620 the subject. From its perspective, a conference to discuss open source
12621 and free software would be like a conference to discuss Apple's
12622 operating system. Both open source and free software compete with
12623 Microsoft's software. And internationally, many governments have begun
12624 to explore requirements that they use open source or free software,
12625 rather than "proprietary software," for their own internal uses.
12628 I don't mean to enter that debate here. It is important only to
12629 make clear that the distinction is not between commercial and
12630 noncommercial software. There are many important companies that depend
12631 fundamentally upon open source and free software, IBM being the most
12632 prominent. IBM is increasingly shifting its focus to the GNU/Linux
12633 operating system, the most famous bit of "free software"
—and IBM
12634 is emphatically a commercial entity. Thus, to support "open source and
12635 free software" is not to oppose commercial entities. It is, instead,
12636 to support a mode of software development that is different from
12637 Microsoft's.
<footnote><para>
12639 Microsoft's position about free and open source software is more
12640 sophisticated. As it has repeatedly asserted, it has no problem with
12641 "open source" software or software in the public domain. Microsoft's
12642 principal opposition is to "free software" licensed under a "copyleft"
12643 license, meaning a license that requires the licensee to adopt the
12644 same terms on any derivative work. See Bradford L. Smith, "The Future
12645 of Software: Enabling the Marketplace to Decide,"
<citetitle>Government Policy
12646 Toward Open Source Software
</citetitle> (Washington, D.C.: AEI-Brookings Joint
12647 Center for Regulatory Studies, American Enterprise Institute for
12648 Public Policy Research,
2002),
69, available at
12649 <ulink url=
"http://free-culture.cc/notes/">link #
62</ulink>. See also
12650 Craig Mundie, Microsoft senior vice president,
<citetitle>The Commercial Software
12651 Model
</citetitle>, discussion at New York University Stern School of Business (
3
12652 May
2001), available at
12653 <ulink url=
"http://free-culture.cc/notes/">link #
63</ulink>.
12655 <indexterm><primary>IBM
</primary></indexterm>
12656 <indexterm><primary>"copyleft" licenses
</primary></indexterm>
12657 <indexterm><primary>GNU/Linux operating system
</primary></indexterm>
12658 <indexterm><primary>Linux operating system
</primary></indexterm>
12661 More important for our purposes, to support "open source and free
12662 software" is not to oppose copyright. "Open source and free software"
12663 is not software in the public domain. Instead, like Microsoft's
12664 software, the copyright owners of free and open source software insist
12665 quite strongly that the terms of their software license be respected
12667 <!-- PAGE BREAK 272 -->
12668 adopters of free and open source software. The terms of that license
12669 are no doubt different from the terms of a proprietary software
12670 license. Free software licensed under the General Public License
12671 (GPL), for example, requires that the source code for the software be
12672 made available by anyone who modifies and redistributes the
12673 software. But that requirement is effective only if copyright governs
12674 software. If copyright did not govern software, then free software
12675 could not impose the same kind of requirements on its adopters. It
12676 thus depends upon copyright law just as Microsoft does.
12679 It is therefore understandable that as a proprietary software
12680 developer, Microsoft would oppose this WIPO meeting, and
12681 understandable that it would use its lobbyists to get the United
12682 States government to oppose it, as well. And indeed, that is just what
12683 was reported to have happened. According to Jonathan Krim of the
12684 <citetitle>Washington Post
</citetitle>, Microsoft's lobbyists succeeded in getting the United
12685 States government to veto the meeting.
<footnote><para>
12687 Krim, "The Quiet War over Open-Source," available at
<ulink
12688 url=
"http://free-culture.cc/notes/">link #
64</ulink>.
12690 And without U.S. backing, the meeting was canceled.
12691 <indexterm><primary>Krim, Jonathan
</primary></indexterm>
12694 I don't blame Microsoft for doing what it can to advance its own
12695 interests, consistent with the law. And lobbying governments is
12696 plainly consistent with the law. There was nothing surprising about
12697 its lobbying here, and nothing terribly surprising about the most
12698 powerful software producer in the United States having succeeded in
12699 its lobbying efforts.
12702 What was surprising was the United States government's reason for
12703 opposing the meeting. Again, as reported by Krim, Lois Boland, acting
12704 director of international relations for the U.S. Patent and Trademark
12705 Office, explained that "open-source software runs counter to the
12706 mission of WIPO, which is to promote intellectual-property rights."
12707 She is quoted as saying, "To hold a meeting which has as its purpose
12708 to disclaim or waive such rights seems to us to be contrary to the
12712 These statements are astonishing on a number of levels.
12714 <!-- PAGE BREAK 273 -->
12716 First, they are just flat wrong. As I described, most open source and
12717 free software relies fundamentally upon the intellectual property
12718 right called "copyright". Without it, restrictions imposed by those
12719 licenses wouldn't work. Thus, to say it "runs counter" to the mission
12720 of promoting intellectual property rights reveals an extraordinary gap
12721 in understanding
—the sort of mistake that is excusable in a
12722 first-year law student, but an embarrassment from a high government
12723 official dealing with intellectual property issues.
12726 Second, who ever said that WIPO's exclusive aim was to "promote"
12727 intellectual property maximally? As I had been scolded at the
12728 preparatory conference of WSIS, WIPO is to consider not only how best
12729 to protect intellectual property, but also what the best balance of
12730 intellectual property is. As every economist and lawyer knows, the
12731 hard question in intellectual property law is to find that
12732 balance. But that there should be limits is, I had thought,
12733 uncontested. One wants to ask Ms. Boland, are generic drugs (drugs
12734 based on drugs whose patent has expired) contrary to the WIPO mission?
12735 Does the public domain weaken intellectual property? Would it have
12736 been better if the protocols of the Internet had been patented?
12739 Third, even if one believed that the purpose of WIPO was to maximize
12740 intellectual property rights, in our tradition, intellectual property
12741 rights are held by individuals and corporations. They get to decide
12742 what to do with those rights because, again, they are
12743 <emphasis>their
</emphasis> rights. If they want to "waive" or
12744 "disclaim" their rights, that is, within our tradition, totally
12745 appropriate. When Bill Gates gives away more than $
20 billion to do
12746 good in the world, that is not inconsistent with the objectives of the
12747 property system. That is, on the contrary, just what a property system
12748 is supposed to be about: giving individuals the right to decide what
12749 to do with
<emphasis>their
</emphasis> property.
12750 <indexterm><primary>Gates, Bill
</primary></indexterm>
12753 When Ms. Boland says that there is something wrong with a meeting
12754 "which has as its purpose to disclaim or waive such rights," she's
12755 saying that WIPO has an interest in interfering with the choices of
12756 <!-- PAGE BREAK 274 -->
12757 the individuals who own intellectual property rights. That somehow,
12758 WIPO's objective should be to stop an individual from "waiving" or
12759 "disclaiming" an intellectual property right. That the interest of
12760 WIPO is not just that intellectual property rights be maximized, but
12761 that they also should be exercised in the most extreme and restrictive
12765 There is a history of just such a property system that is well known
12766 in the Anglo-American tradition. It is called "feudalism." Under
12767 feudalism, not only was property held by a relatively small number of
12768 individuals and entities. And not only were the rights that ran with
12769 that property powerful and extensive. But the feudal system had a
12770 strong interest in assuring that property holders within that system
12771 not weaken feudalism by liberating people or property within their
12772 control to the free market. Feudalism depended upon maximum control
12773 and concentration. It fought any freedom that might interfere with
12776 <indexterm><primary>Drahos, Peter
</primary></indexterm>
12777 <indexterm><primary>Braithwaite, John
</primary></indexterm>
12779 As Peter Drahos and John Braithwaite relate, this is precisely the
12780 choice we are now making about intellectual property.
<footnote><para>
12782 See Drahos with Braithwaite,
<citetitle>Information Feudalism
</citetitle>,
210–20.
12783 <indexterm><primary>Drahos, Peter
</primary></indexterm>
12785 We will have an information society. That much is certain. Our only
12786 choice now is whether that information society will be
12787 <emphasis>free
</emphasis> or
<emphasis>feudal
</emphasis>. The trend is
12791 When this battle broke, I blogged it. A spirited debate within the
12792 comment section ensued. Ms. Boland had a number of supporters who
12793 tried to show why her comments made sense. But there was one comment
12794 that was particularly depressing for me. An anonymous poster wrote,
12798 George, you misunderstand Lessig: He's only talking about the world as
12799 it should be ("the goal of WIPO, and the goal of any government,
12800 should be to promote the right balance of intellectual property rights,
12801 not simply to promote intellectual property rights"), not as it is. If
12802 we were talking about the world as it is, then of course Boland didn't
12803 say anything wrong. But in the world
12804 <!-- PAGE BREAK 275 -->
12805 as Lessig would have it, then of course she did. Always pay attention
12806 to the distinction between Lessig's world and ours.
12810 I missed the irony the first time I read it. I read it quickly and
12811 thought the poster was supporting the idea that seeking balance was
12812 what our government should be doing. (Of course, my criticism of Ms.
12813 Boland was not about whether she was seeking balance or not; my
12814 criticism was that her comments betrayed a first-year law student's
12815 mistake. I have no illusion about the extremism of our government,
12816 whether Republican or Democrat. My only illusion apparently is about
12817 whether our government should speak the truth or not.)
12820 Obviously, however, the poster was not supporting that idea. Instead,
12821 the poster was ridiculing the very idea that in the real world, the
12822 "goal" of a government should be "to promote the right balance" of
12823 intellectual property. That was obviously silly to him. And it
12824 obviously betrayed, he believed, my own silly utopianism. "Typical for
12825 an academic," the poster might well have continued.
12828 I understand criticism of academic utopianism. I think utopianism is
12829 silly, too, and I'd be the first to poke fun at the absurdly
12830 unrealistic ideals of academics throughout history (and not just in
12831 our own country's history).
12834 But when it has become silly to suppose that the role of our
12835 government should be to "seek balance," then count me with the silly,
12836 for that means that this has become quite serious indeed. If it should
12837 be obvious to everyone that the government does not seek balance, that
12838 the government is simply the tool of the most powerful lobbyists, that
12839 the idea of holding the government to a different standard is absurd,
12840 that the idea of demanding of the government that it speak truth and
12841 not lies is just na
ïve, then who have we, the most powerful
12842 democracy in the world, become?
12845 It might be crazy to expect a high government official to speak
12846 the truth. It might be crazy to believe that government policy will be
12847 something more than the handmaiden of the most powerful interests.
12848 <!-- PAGE BREAK 276 -->
12849 It might be crazy to argue that we should preserve a tradition that has
12850 been part of our tradition for most of our history
—free culture.
12852 <indexterm><primary>CodePink Women in Peace
</primary></indexterm>
12854 If this is crazy, then let there be more crazies. Soon. There are
12855 moments of hope in this struggle. And moments that surprise. When the
12856 FCC was considering relaxing ownership rules, which would thereby
12857 further increase the concentration in media ownership, an
12858 extraordinary bipartisan coalition formed to fight this change. For
12859 perhaps the first time in history, interests as diverse as the NRA,
12860 the ACLU, Moveon.org, William Safire, Ted Turner, and CodePink Women
12861 for Peace organized to oppose this change in FCC policy. An
12862 astonishing
700,
000 letters were sent to the FCC, demanding more
12863 hearings and a different result.
12864 <indexterm><primary>Turner, Ted
</primary></indexterm>
12865 <indexterm><primary>Safire, William
</primary></indexterm>
12868 This activism did not stop the FCC, but soon after, a broad coalition
12869 in the Senate voted to reverse the FCC decision. The hostile hearings
12870 leading up to that vote revealed just how powerful this movement had
12871 become. There was no substantial support for the FCC's decision, and
12872 there was broad and sustained support for fighting further
12873 concentration in the media.
12876 But even this movement misses an important piece of the puzzle.
12877 Largeness as such is not bad. Freedom is not threatened just because
12878 some become very rich, or because there are only a handful of big
12879 players. The poor quality of Big Macs or Quarter Pounders does not
12880 mean that you can't get a good hamburger from somewhere else.
12883 The danger in media concentration comes not from the concentration,
12884 but instead from the feudalism that this concentration, tied to the
12885 change in copyright, produces. It is not just that there are a few
12886 powerful companies that control an ever expanding slice of the
12887 media. It is that this concentration can call upon an equally bloated
12888 range of rights
—property rights of a historically extreme
12889 form
—that makes their bigness bad.
12891 <!-- PAGE BREAK 277 -->
12893 It is therefore significant that so many would rally to demand
12894 competition and increased diversity. Still, if the rally is understood
12895 as being about bigness alone, it is not terribly surprising. We
12896 Americans have a long history of fighting "big," wisely or not. That
12897 we could be motivated to fight "big" again is not something new.
12900 It would be something new, and something very important, if an equal
12901 number could be rallied to fight the increasing extremism built within
12902 the idea of "intellectual property." Not because balance is alien to
12903 our tradition; indeed, as I've argued, balance is our tradition. But
12904 because the muscle to think critically about the scope of anything
12905 called "property" is not well exercised within this tradition anymore.
12908 If we were Achilles, this would be our heel. This would be the place
12911 <indexterm><primary>Dylan, Bob
</primary></indexterm>
12913 As I write these final words, the news is filled with stories about
12914 the RIAA lawsuits against almost three hundred individuals.
<footnote><para>
12916 John Borland, "RIAA Sues
261 File Swappers," CNET News.com, September
12918 <ulink url=
"http://free-culture.cc/notes/">link #
65</ulink>; Paul
12919 R. La Monica, "Music Industry Sues Swappers," CNN/Money,
8 September
12921 <ulink url=
"http://free-culture.cc/notes/">link #
66</ulink>; Soni
12922 Sangha and Phyllis Furman with Robert Gearty, "Sued for a Song,
12923 N.Y.C.
12-Yr-Old Among
261 Cited as Sharers,"
<citetitle>New York Daily News
</citetitle>,
9
12924 September
2003,
3; Frank Ahrens, "RIAA's Lawsuits Meet Surprised
12925 Targets; Single Mother in Calif.,
12-Year-Old Girl in N.Y. Among
12926 Defendants,"
<citetitle>Washington Post
</citetitle>,
10 September
2003, E1; Katie Dean,
12927 "Schoolgirl Settles with RIAA,"
<citetitle>Wired News
</citetitle>,
10 September
2003,
12929 <ulink url=
"http://free-culture.cc/notes/">link #
67</ulink>.
12931 Eminem has just been sued for "sampling" someone else's
12932 music.
<footnote><para>
12934 Jon Wiederhorn, "Eminem Gets Sued
… by a Little Old Lady,"
12935 mtv.com,
17 September
2003, available at
12936 <ulink url=
"http://free-culture.cc/notes/">link #
68</ulink>.
12938 The story about Bob Dylan "stealing" from a Japanese author has just
12939 finished making the rounds.
<footnote><para>
12941 Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for
12942 Dylan Songs," Kansascity.com,
9 July
2003, available at
12943 <ulink url=
"http://free-culture.cc/notes/">link #
69</ulink>.
12944 <!-- PAGE BREAK 334 -->
12946 An insider from Hollywood
—who insists he must remain
12947 anonymous
—reports "an amazing conversation with these studio
12948 guys. They've got extraordinary [old] content that they'd love to use
12949 but can't because they can't begin to clear the rights. They've got
12950 scores of kids who could do amazing things with the content, but it
12951 would take scores of lawyers to clean it first." Congressmen are
12952 talking about deputizing computer viruses to bring down computers
12953 thought to violate the law. Universities are threatening expulsion for
12954 kids who use a computer to share content.
12956 <indexterm><primary>Causby, Thomas Lee
</primary></indexterm>
12957 <indexterm><primary>Causby, Tinie
</primary></indexterm>
12958 <indexterm><primary>Creative Commons
</primary></indexterm>
12959 <indexterm><primary>Gil, Gilberto
</primary></indexterm>
12961 Yet on the other side of the Atlantic, the BBC has just announced
12962 that it will build a "Creative Archive," from which British citizens can
12963 download BBC content, and rip, mix, and burn it.
<footnote><para>
12964 <!-- f14. --> "BBC Plans to Open Up Its Archive to the Public," BBC press release,
12965 24 August
2003, available at
12966 <ulink url=
"http://free-culture.cc/notes/">link #
70</ulink>.
12968 And in Brazil, the culture minister, Gilberto Gil, himself a folk hero
12969 of Brazilian music, has joined with Creative Commons to release
12970 content and free licenses in that Latin American
12971 country.
<footnote><para>
12973 "Creative Commons and Brazil," Creative Commons Weblog,
6 August
2003,
12975 <ulink url=
"http://free-culture.cc/notes/">link #
71</ulink>.
12977 <!-- PAGE BREAK 278 -->
12978 I've told a dark story. The truth is more mixed. A technology has
12979 given us a new freedom. Slowly, some begin to understand that this
12980 freedom need not mean anarchy. We can carry a free culture into the
12981 twenty-first century, without artists losing and without the potential of
12982 digital technology being destroyed. It will take some thought, and
12983 more importantly, it will take some will to transform the RCAs of our
12984 day into the Causbys.
12987 Common sense must revolt. It must act to free culture. Soon, if this
12988 potential is ever to be realized.
12990 <!-- PAGE BREAK 279 -->
12994 <chapter label=
"16" id=
"c-afterword">
12995 <title>AFTERWORD
</title>
12998 <!-- PAGE BREAK 280 -->
12999 At least some who have read this far will agree with me that something
13000 must be done to change where we are heading. The balance of this book
13001 maps what might be done.
13004 I divide this map into two parts: that which anyone can do now,
13005 and that which requires the help of lawmakers. If there is one lesson
13006 that we can draw from the history of remaking common sense, it is that
13007 it requires remaking how many people think about the very same issue.
13010 That means this movement must begin in the streets. It must recruit a
13011 significant number of parents, teachers, librarians, creators,
13012 authors, musicians, filmmakers, scientists
—all to tell this
13013 story in their own words, and to tell their neighbors why this battle
13017 Once this movement has its effect in the streets, it has some hope of
13018 having an effect in Washington. We are still a democracy. What people
13019 think matters. Not as much as it should, at least when an RCA stands
13020 opposed, but still, it matters. And thus, in the second part below, I
13021 sketch changes that Congress could make to better secure a free culture.
13023 <!-- PAGE BREAK 281 -->
13025 <section id=
"usnow">
13026 <title>US, NOW
</title>
13028 Common sense is with the copyright warriors because the debate so far
13029 has been framed at the extremes
—as a grand either/or: either
13030 property or anarchy, either total control or artists won't be paid. If
13031 that really is the choice, then the warriors should win.
13034 The mistake here is the error of the excluded middle. There are
13035 extremes in this debate, but the extremes are not all that there
13036 is. There are those who believe in maximal copyright
—"All Rights
13037 Reserved"
— and those who reject copyright
—"No Rights
13038 Reserved." The "All Rights Reserved" sorts believe that you should ask
13039 permission before you "use" a copyrighted work in any way. The "No
13040 Rights Reserved" sorts believe you should be able to do with content
13041 as you wish, regardless of whether you have permission or not.
13044 When the Internet was first born, its initial architecture effectively
13045 tilted in the "no rights reserved" direction. Content could be copied
13046 perfectly and cheaply; rights could not easily be controlled. Thus,
13047 regardless of anyone's desire, the effective regime of copyright under
13050 <!-- PAGE BREAK 282 -->
13051 original design of the Internet was "no rights reserved." Content was
13052 "taken" regardless of the rights. Any rights were effectively
13056 This initial character produced a reaction (opposite, but not quite
13057 equal) by copyright owners. That reaction has been the topic of this
13058 book. Through legislation, litigation, and changes to the network's
13059 design, copyright holders have been able to change the essential
13060 character of the environment of the original Internet. If the original
13061 architecture made the effective default "no rights reserved," the
13062 future architecture will make the effective default "all rights
13063 reserved." The architecture and law that surround the Internet's
13064 design will increasingly produce an environment where all use of
13065 content requires permission. The "cut and paste" world that defines
13066 the Internet today will become a "get permission to cut and paste"
13067 world that is a creator's nightmare.
13070 What's needed is a way to say something in the middle
—neither
13071 "all rights reserved" nor "no rights reserved" but "some rights
13072 reserved"
— and thus a way to respect copyrights but enable
13073 creators to free content as they see fit. In other words, we need a
13074 way to restore a set of freedoms that we could just take for granted
13078 <section id=
"examples">
13079 <title>Rebuilding Freedoms Previously Presumed: Examples
</title>
13081 If you step back from the battle I've been describing here, you will
13082 recognize this problem from other contexts. Think about
13083 privacy. Before the Internet, most of us didn't have to worry much
13084 about data about our lives that we broadcast to the world. If you
13085 walked into a bookstore and browsed through some of the works of Karl
13086 Marx, you didn't need to worry about explaining your browsing habits
13087 to your neighbors or boss. The "privacy" of your browsing habits was
13091 What made it assured?
13093 <!-- PAGE BREAK 283 -->
13095 Well, if we think in terms of the modalities I described in chapter
13096 <xref xrefstyle=
"select: labelnumber" linkend=
"property-i"/>, your
13097 privacy was assured because of an inefficient architecture for
13098 gathering data and hence a market constraint (cost) on anyone who
13099 wanted to gather that data. If you were a suspected spy for North
13100 Korea, working for the CIA, no doubt your privacy would not be
13101 assured. But that's because the CIA would (we hope) find it valuable
13102 enough to spend the thousands required to track you. But for most of
13103 us (again, we can hope), spying doesn't pay. The highly inefficient
13104 architecture of real space means we all enjoy a fairly robust amount
13105 of privacy. That privacy is guaranteed to us by friction. Not by law
13106 (there is no law protecting "privacy" in public places), and in many
13107 places, not by norms (snooping and gossip are just fun), but instead,
13108 by the costs that friction imposes on anyone who would want to spy.
13110 <indexterm><primary>Amazon
</primary></indexterm>
13112 Enter the Internet, where the cost of tracking browsing in particular
13113 has become quite tiny. If you're a customer at Amazon, then as you
13114 browse the pages, Amazon collects the data about what you've looked
13115 at. You know this because at the side of the page, there's a list of
13116 "recently viewed" pages. Now, because of the architecture of the Net
13117 and the function of cookies on the Net, it is easier to collect the
13118 data than not. The friction has disappeared, and hence any "privacy"
13119 protected by the friction disappears, too.
13120 <indexterm><primary>cookies, Internet
</primary></indexterm>
13123 Amazon, of course, is not the problem. But we might begin to worry
13124 about libraries. If you're one of those crazy lefties who thinks that
13125 people should have the "right" to browse in a library without the
13126 government knowing which books you look at (I'm one of those lefties,
13127 too), then this change in the technology of monitoring might concern
13128 you. If it becomes simple to gather and sort who does what in
13129 electronic spaces, then the friction-induced privacy of yesterday
13133 It is this reality that explains the push of many to define "privacy"
13134 on the Internet. It is the recognition that technology can remove what
13135 friction before gave us that leads many to push for laws to do what
13136 friction did.
<footnote><para>
13139 See, for example, Marc Rotenberg, "Fair Information Practices and the
13140 Architecture of Privacy (What Larry Doesn't Get),"
<citetitle>Stanford Technology
13141 Law Review
</citetitle> 1 (
2001): par.
6–18, available at
13143 <ulink url=
"http://free-culture.cc/notes/">link #
72</ulink>
13144 (describing examples in which technology defines privacy policy). See
13145 also Jeffrey Rosen,
<citetitle>The Naked Crowd: Reclaiming Security and Freedom
13146 in an Anxious Age
</citetitle> (New York: Random House,
2004) (mapping tradeoffs
13147 between technology and privacy).
</para></footnote>
13148 And whether you're in favor of those laws or not, it is the pattern
13149 that is important here. We must take affirmative steps to secure a
13151 <!-- PAGE BREAK 284 -->
13152 kind of freedom that was passively provided before. A change in
13153 technology now forces those who believe in privacy to affirmatively
13154 act where, before, privacy was given by default.
13157 A similar story could be told about the birth of the free software
13158 movement. When computers with software were first made available
13159 commercially, the software
—both the source code and the
13160 binaries
— was free. You couldn't run a program written for a
13161 Data General machine on an IBM machine, so Data General and IBM didn't
13162 care much about controlling their software.
13163 <indexterm><primary>IBM
</primary></indexterm>
13165 <indexterm><primary>Stallman, Richard
</primary></indexterm>
13167 That was the world Richard Stallman was born into, and while he was a
13168 researcher at MIT, he grew to love the community that developed when
13169 one was free to explore and tinker with the software that ran on
13170 machines. Being a smart sort himself, and a talented programmer,
13171 Stallman grew to depend upon the freedom to add to or modify other
13175 In an academic setting, at least, that's not a terribly radical
13176 idea. In a math department, anyone would be free to tinker with a
13177 proof that someone offered. If you thought you had a better way to
13178 prove a theorem, you could take what someone else did and change
13179 it. In a classics department, if you believed a colleague's
13180 translation of a recently discovered text was flawed, you were free to
13181 improve it. Thus, to Stallman, it seemed obvious that you should be
13182 free to tinker with and improve the code that ran a machine. This,
13183 too, was knowledge. Why shouldn't it be open for criticism like
13187 No one answered that question. Instead, the architecture of revenue
13188 for computing changed. As it became possible to import programs from
13189 one system to another, it became economically attractive (at least in
13190 the view of some) to hide the code of your program. So, too, as
13191 companies started selling peripherals for mainframe systems. If I
13192 could just take your printer driver and copy it, then that would make
13193 it easier for me to sell a printer to the market than it was for you.
13196 Thus, the practice of proprietary code began to spread, and by the
13197 early
1980s, Stallman found himself surrounded by proprietary code.
13198 <!-- PAGE BREAK 285 -->
13199 The world of free software had been erased by a change in the
13200 economics of computing. And as he believed, if he did nothing about
13201 it, then the freedom to change and share software would be
13202 fundamentally weakened.
13205 Therefore, in
1984, Stallman began a project to build a free operating
13206 system, so that at least a strain of free software would survive. That
13207 was the birth of the GNU project, into which Linus Torvalds's "Linux"
13208 kernel was added to produce the GNU/Linux operating system.
13209 <indexterm><primary>GNU/Linux operating system
</primary></indexterm>
13210 <indexterm><primary>Linux operating system
</primary></indexterm>
13213 Stallman's technique was to use copyright law to build a world of
13214 software that must be kept free. Software licensed under the Free
13215 Software Foundation's GPL cannot be modified and distributed unless
13216 the source code for that software is made available as well. Thus,
13217 anyone building upon GPL'd software would have to make their buildings
13218 free as well. This would assure, Stallman believed, that an ecology of
13219 code would develop that remained free for others to build upon. His
13220 fundamental goal was freedom; innovative creative code was a
13224 Stallman was thus doing for software what privacy advocates now
13225 do for privacy. He was seeking a way to rebuild a kind of freedom that
13226 was taken for granted before. Through the affirmative use of licenses
13227 that bind copyrighted code, Stallman was affirmatively reclaiming a
13228 space where free software would survive. He was actively protecting
13229 what before had been passively guaranteed.
13232 Finally, consider a very recent example that more directly resonates
13233 with the story of this book. This is the shift in the way academic and
13234 scientific journals are produced.
13236 <indexterm id=
"idxacademocjournals" class='startofrange'
>
13237 <primary>academic journals
</primary>
13240 As digital technologies develop, it is becoming obvious to many that
13241 printing thousands of copies of journals every month and sending them
13242 to libraries is perhaps not the most efficient way to distribute
13243 knowledge. Instead, journals are increasingly becoming electronic, and
13244 libraries and their users are given access to these electronic
13245 journals through password-protected sites. Something similar to this
13246 has been happening in law for almost thirty years: Lexis and Westlaw
13247 have had electronic versions of case reports available to subscribers
13248 to their service. Although a Supreme Court opinion is not
13249 copyrighted, and anyone is free to go to a library and read it, Lexis
13250 and Westlaw are also free
13251 <!-- PAGE BREAK 286 -->
13252 to charge users for the privilege of gaining access to that Supreme
13253 Court opinion through their respective services.
13256 There's nothing wrong in general with this, and indeed, the ability to
13257 charge for access to even public domain materials is a good incentive
13258 for people to develop new and innovative ways to spread knowledge.
13259 The law has agreed, which is why Lexis and Westlaw have been allowed
13260 to flourish. And if there's nothing wrong with selling the public
13261 domain, then there could be nothing wrong, in principle, with selling
13262 access to material that is not in the public domain.
13265 But what if the only way to get access to social and scientific data
13266 was through proprietary services? What if no one had the ability to
13267 browse this data except by paying for a subscription?
13270 As many are beginning to notice, this is increasingly the reality with
13271 scientific journals. When these journals were distributed in paper
13272 form, libraries could make the journals available to anyone who had
13273 access to the library. Thus, patients with cancer could become cancer
13274 experts because the library gave them access. Or patients trying to
13275 understand the risks of a certain treatment could research those risks
13276 by reading all available articles about that treatment. This freedom
13277 was therefore a function of the institution of libraries (norms) and
13278 the technology of paper journals (architecture)
—namely, that it
13279 was very hard to control access to a paper journal.
13282 As journals become electronic, however, the publishers are demanding
13283 that libraries not give the general public access to the
13284 journals. This means that the freedoms provided by print journals in
13285 public libraries begin to disappear. Thus, as with privacy and with
13286 software, a changing technology and market shrink a freedom taken for
13290 This shrinking freedom has led many to take affirmative steps to
13291 restore the freedom that has been lost. The Public Library of Science
13292 (PLoS), for example, is a nonprofit corporation dedicated to making
13293 scientific research available to anyone with a Web connection. Authors
13294 <!-- PAGE BREAK 287 -->
13295 of scientific work submit that work to the Public Library of Science.
13296 That work is then subject to peer review. If accepted, the work is
13297 then deposited in a public, electronic archive and made permanently
13298 available for free. PLoS also sells a print version of its work, but
13299 the copyright for the print journal does not inhibit the right of
13300 anyone to redistribute the work for free.
13301 <indexterm><primary>PLoS (Public Library of Science)
</primary></indexterm>
13304 This is one of many such efforts to restore a freedom taken for
13305 granted before, but now threatened by changing technology and markets.
13306 There's no doubt that this alternative competes with the traditional
13307 publishers and their efforts to make money from the exclusive
13308 distribution of content. But competition in our tradition is
13309 presumptively a good
—especially when it helps spread knowledge
13312 <indexterm startref=
"idxacademocjournals" class='endofrange'
/>
13315 <section id=
"oneidea">
13316 <title>Rebuilding Free Culture: One Idea
</title>
13317 <indexterm id=
"idxcc" class='startofrange'
>
13318 <primary>Creative Commons
</primary>
13321 The same strategy could be applied to culture, as a response to the
13322 increasing control effected through law and technology.
13325 Enter the Creative Commons. The Creative Commons is a nonprofit
13326 corporation established in Massachusetts, but with its home at
13327 Stanford University. Its aim is to build a layer of
13328 <emphasis>reasonable
</emphasis> copyright on top of the extremes that
13329 now reign. It does this by making it easy for people to build upon
13330 other people's work, by making it simple for creators to express the
13331 freedom for others to take and build upon their work. Simple tags,
13332 tied to human-readable descriptions, tied to bulletproof licenses,
13333 make this possible.
13336 <emphasis>Simple
</emphasis>—which means without a middleman, or
13337 without a lawyer. By developing a free set of licenses that people
13338 can attach to their content, Creative Commons aims to mark a range of
13339 content that can easily, and reliably, be built upon. These tags are
13340 then linked to machine-readable versions of the license that enable
13341 computers automatically to identify content that can easily be
13342 shared. These three expressions together
—a legal license, a
13343 human-readable description, and
13344 <!-- PAGE BREAK 288 -->
13345 machine-readable tags
—constitute a Creative Commons license. A
13346 Creative Commons license constitutes a grant of freedom to anyone who
13347 accesses the license, and more importantly, an expression of the ideal
13348 that the person associated with the license believes in something
13349 different than the "All" or "No" extremes. Content is marked with the
13350 CC mark, which does not mean that copyright is waived, but that
13351 certain freedoms are given.
13354 These freedoms are beyond the freedoms promised by fair use. Their
13355 precise contours depend upon the choices the creator makes. The
13356 creator can choose a license that permits any use, so long as
13357 attribution is given. She can choose a license that permits only
13358 noncommercial use. She can choose a license that permits any use so
13359 long as the same freedoms are given to other uses ("share and share
13360 alike"). Or any use so long as no derivative use is made. Or any use
13361 at all within developing nations. Or any sampling use, so long as full
13362 copies are not made. Or lastly, any educational use.
13365 These choices thus establish a range of freedoms beyond the default of
13366 copyright law. They also enable freedoms that go beyond traditional
13367 fair use. And most importantly, they express these freedoms in a way
13368 that subsequent users can use and rely upon without the need to hire a
13369 lawyer. Creative Commons thus aims to build a layer of content,
13370 governed by a layer of reasonable copyright law, that others can build
13371 upon. Voluntary choice of individuals and creators will make this
13372 content available. And that content will in turn enable us to rebuild
13376 This is just one project among many within the Creative Commons. And
13377 of course, Creative Commons is not the only organization pursuing such
13378 freedoms. But the point that distinguishes the Creative Commons from
13379 many is that we are not interested only in talking about a public
13380 domain or in getting legislators to help build a public domain. Our
13381 aim is to build a movement of consumers and producers
13382 <!-- PAGE BREAK 289 -->
13383 of content ("content conducers," as attorney Mia Garlick calls them)
13384 who help build the public domain and, by their work, demonstrate the
13385 importance of the public domain to other creativity.
13386 <indexterm><primary>Garlick, Mia
</primary></indexterm>
13389 The aim is not to fight the "All Rights Reserved" sorts. The aim is to
13390 complement them. The problems that the law creates for us as a culture
13391 are produced by insane and unintended consequences of laws written
13392 centuries ago, applied to a technology that only Jefferson could have
13393 imagined. The rules may well have made sense against a background of
13394 technologies from centuries ago, but they do not make sense against
13395 the background of digital technologies. New rules
—with different
13396 freedoms, expressed in ways so that humans without lawyers can use
13397 them
—are needed. Creative Commons gives people a way effectively
13398 to begin to build those rules.
13401 Why would creators participate in giving up total control? Some
13402 participate to better spread their content. Cory Doctorow, for
13403 example, is a science fiction author. His first novel,
<citetitle>Down and Out in
13404 the Magic Kingdom
</citetitle>, was released on-line and for free, under a Creative
13405 Commons license, on the same day that it went on sale in bookstores.
13408 Why would a publisher ever agree to this? I suspect his publisher
13409 reasoned like this: There are two groups of people out there: (
1)
13410 those who will buy Cory's book whether or not it's on the Internet,
13411 and (
2) those who may never hear of Cory's book, if it isn't made
13412 available for free on the Internet. Some part of (
1) will download
13413 Cory's book instead of buying it. Call them bad-(
1)s. Some part of (
2)
13414 will download Cory's book, like it, and then decide to buy it. Call
13415 them (
2)-goods. If there are more (
2)-goods than bad-(
1)s, the
13416 strategy of releasing Cory's book free on-line will probably
13417 <emphasis>increase
</emphasis> sales of Cory's book.
13420 Indeed, the experience of his publisher clearly supports that
13421 conclusion. The book's first printing was exhausted months before the
13422 publisher had expected. This first novel of a science fiction author
13423 was a total success.
13426 The idea that free content might increase the value of nonfree content
13427 was confirmed by the experience of another author. Peter Wayner,
13428 <!-- PAGE BREAK 290 -->
13429 who wrote a book about the free software movement titled
<citetitle>Free for All
</citetitle>,
13430 made an electronic version of his book free on-line under a Creative
13431 Commons license after the book went out of print. He then monitored
13432 used book store prices for the book. As predicted, as the number of
13433 downloads increased, the used book price for his book increased, as
13435 <indexterm><primary>Free for All (Wayner)
</primary></indexterm>
13436 <indexterm><primary>Wayner, Peter
</primary></indexterm>
13438 <indexterm><primary>Public Enemy
</primary></indexterm>
13439 <indexterm><primary>rap music
</primary></indexterm>
13441 These are examples of using the Commons to better spread proprietary
13442 content. I believe that is a wonderful and common use of the
13443 Commons. There are others who use Creative Commons licenses for other
13444 reasons. Many who use the "sampling license" do so because anything
13445 else would be hypocritical. The sampling license says that others are
13446 free, for commercial or noncommercial purposes, to sample content from
13447 the licensed work; they are just not free to make full copies of the
13448 licensed work available to others. This is consistent with their own
13449 art
—they, too, sample from others. Because the
13450 <emphasis>legal
</emphasis> costs of sampling are so high (Walter
13451 Leaphart, manager of the rap group Public Enemy, which was born
13452 sampling the music of others, has stated that he does not "allow"
13453 Public Enemy to sample anymore, because the legal costs are so
13454 high
<footnote><para>
13456 <citetitle>Willful Infringement: A Report from the Front Lines of the Real
13457 Culture Wars
</citetitle> (
2003), produced by Jed Horovitz, directed by Greg
13458 Hittelman, a Fiat Lucre production, available at
13459 <ulink url=
"http://free-culture.cc/notes/">link #
72</ulink>.
13460 </para></footnote>),
13461 these artists release into the creative environment content
13462 that others can build upon, so that their form of creativity might grow.
13463 <indexterm><primary>Leaphart, Walter
</primary></indexterm>
13466 Finally, there are many who mark their content with a Creative Commons
13467 license just because they want to express to others the importance of
13468 balance in this debate. If you just go along with the system as it is,
13469 you are effectively saying you believe in the "All Rights Reserved"
13470 model. Good for you, but many do not. Many believe that however
13471 appropriate that rule is for Hollywood and freaks, it is not an
13472 appropriate description of how most creators view the rights
13473 associated with their content. The Creative Commons license expresses
13474 this notion of "Some Rights Reserved," and gives many the chance to
13478 In the first six months of the Creative Commons experiment, over
13479 1 million objects were licensed with these free-culture licenses. The next
13480 step is partnerships with middleware content providers to help them
13481 build into their technologies simple ways for users to mark their content
13483 <!-- PAGE BREAK 291 -->
13484 with Creative Commons freedoms. Then the next step is to watch and
13485 celebrate creators who build content based upon content set free.
13488 These are first steps to rebuilding a public domain. They are not
13489 mere arguments; they are action. Building a public domain is the first
13490 step to showing people how important that domain is to creativity and
13491 innovation. Creative Commons relies upon voluntary steps to achieve
13492 this rebuilding. They will lead to a world in which more than voluntary
13493 steps are possible.
13496 Creative Commons is just one example of voluntary efforts by
13497 individuals and creators to change the mix of rights that now govern
13498 the creative field. The project does not compete with copyright; it
13499 complements it. Its aim is not to defeat the rights of authors, but to
13500 make it easier for authors and creators to exercise their rights more
13501 flexibly and cheaply. That difference, we believe, will enable
13502 creativity to spread more easily.
13504 <indexterm startref=
"idxcc" class='endofrange'
/>
13506 <!-- PAGE BREAK 292 -->
13509 <section id=
"themsoon">
13510 <title>THEM, SOON
</title>
13512 We will not reclaim a free culture by individual action alone. It will
13513 also take important reforms of laws. We have a long way to go before
13514 the politicians will listen to these ideas and implement these reforms.
13515 But that also means that we have time to build awareness around the
13516 changes that we need.
13519 In this chapter, I outline five kinds of changes: four that are general,
13520 and one that's specific to the most heated battle of the day, music. Each
13521 is a step, not an end. But any of these steps would carry us a long way
13525 <section id=
"formalities">
13526 <title>1. More Formalities
</title>
13528 If you buy a house, you have to record the sale in a deed. If you buy land
13529 upon which to build a house, you have to record the purchase in a deed.
13530 If you buy a car, you get a bill of sale and register the car. If you buy an
13531 airplane ticket, it has your name on it.
13534 <!-- PAGE BREAK 293 -->
13535 These are all formalities associated with property. They are
13536 requirements that we all must bear if we want our property to be
13540 In contrast, under current copyright law, you automatically get a
13541 copyright, regardless of whether you comply with any formality. You
13542 don't have to register. You don't even have to mark your content. The
13543 default is control, and "formalities" are banished.
13549 As I suggested in chapter
<xref xrefstyle=
"select: labelnumber"
13550 linkend=
"property-i"/>, the motivation to abolish formalities was a
13551 good one. In the world before digital technologies, formalities
13552 imposed a burden on copyright holders without much benefit. Thus, it
13553 was progress when the law relaxed the formal requirements that a
13554 copyright owner must bear to protect and secure his work. Those
13555 formalities were getting in the way.
13558 But the Internet changes all this. Formalities today need not be a
13559 burden. Rather, the world without formalities is the world that
13560 burdens creativity. Today, there is no simple way to know who owns
13561 what, or with whom one must deal in order to use or build upon the
13562 creative work of others. There are no records, there is no system to
13563 trace
— there is no simple way to know how to get permission. Yet
13564 given the massive increase in the scope of copyright's rule, getting
13565 permission is a necessary step for any work that builds upon our
13566 past. And thus, the
<emphasis>lack
</emphasis> of formalities forces
13567 many into silence where they otherwise could speak.
13570 The law should therefore change this requirement
<footnote><para>
13572 The proposal I am advancing here would apply to American works only.
13573 Obviously, I believe it would be beneficial for the same idea to be
13574 adopted by other countries as well.
</para></footnote>—but it
13575 should not change it by going back to the old, broken system. We
13576 should require formalities, but we should establish a system that will
13577 create the incentives to minimize the burden of these formalities.
13580 The important formalities are three: marking copyrighted work,
13581 registering copyrights, and renewing the claim to
13582 copyright. Traditionally, the first of these three was something the
13583 copyright owner did; the second two were something the government
13584 did. But a revised system of formalities would banish the government
13585 from the process, except for the sole purpose of approving standards
13586 developed by others.
13589 <!-- PAGE BREAK 294 -->
13591 <section id=
"registration">
13592 <title>REGISTRATION AND RENEWAL
</title>
13594 Under the old system, a copyright owner had to file a registration
13595 with the Copyright Office to register or renew a copyright. When
13596 filing that registration, the copyright owner paid a fee. As with most
13597 government agencies, the Copyright Office had little incentive to
13598 minimize the burden of registration; it also had little incentive to
13599 minimize the fee. And as the Copyright Office is not a main target of
13600 government policymaking, the office has historically been terribly
13601 underfunded. Thus, when people who know something about the process
13602 hear this idea about formalities, their first reaction is
13603 panic
—nothing could be worse than forcing people to deal with
13604 the mess that is the Copyright Office.
13607 Yet it is always astonishing to me that we, who come from a tradition
13608 of extraordinary innovation in governmental design, can no longer
13609 think innovatively about how governmental functions can be designed.
13610 Just because there is a public purpose to a government role, it
13611 doesn't follow that the government must actually administer the
13612 role. Instead, we should be creating incentives for private parties to
13613 serve the public, subject to standards that the government sets.
13616 In the context of registration, one obvious model is the Internet.
13617 There are at least
32 million Web sites registered around the world.
13618 Domain name owners for these Web sites have to pay a fee to keep their
13619 registration alive. In the main top-level domains (.com, .org, .net),
13620 there is a central registry. The actual registrations are, however,
13621 performed by many competing registrars. That competition drives the
13622 cost of registering down, and more importantly, it drives the ease
13623 with which registration occurs up.
13626 We should adopt a similar model for the registration and renewal of
13627 copyrights. The Copyright Office may well serve as the central
13628 registry, but it should not be in the registrar business. Instead, it
13629 should establish a database, and a set of standards for registrars. It
13630 should approve registrars that meet its standards. Those registrars
13631 would then compete with one another to deliver the cheapest and
13632 simplest systems for registering and renewing copyrights. That
13633 competition would substantially lower the burden of this
13634 formality
—while producing a database
13635 <!-- PAGE BREAK 295 -->
13636 of registrations that would facilitate the licensing of content.
13640 <section id=
"marking">
13641 <title>MARKING
</title>
13643 It used to be that the failure to include a copyright notice on a
13644 creative work meant that the copyright was forfeited. That was a harsh
13645 punishment for failing to comply with a regulatory rule
—akin to
13646 imposing the death penalty for a parking ticket in the world of
13647 creative rights. Here again, there is no reason that a marking
13648 requirement needs to be enforced in this way. And more importantly,
13649 there is no reason a marking requirement needs to be enforced
13650 uniformly across all media.
13653 The aim of marking is to signal to the public that this work is
13654 copyrighted and that the author wants to enforce his rights. The mark
13655 also makes it easy to locate a copyright owner to secure permission to
13659 One of the problems the copyright system confronted early on was
13660 that different copyrighted works had to be differently marked. It wasn't
13661 clear how or where a statue was to be marked, or a record, or a film. A
13662 new marking requirement could solve these problems by recognizing
13663 the differences in media, and by allowing the system of marking to
13664 evolve as technologies enable it to. The system could enable a special
13665 signal from the failure to mark
—not the loss of the copyright, but the
13666 loss of the right to punish someone for failing to get permission first.
13669 Let's start with the last point. If a copyright owner allows his work
13670 to be published without a copyright notice, the consequence of that
13671 failure need not be that the copyright is lost. The consequence could
13672 instead be that anyone has the right to use this work, until the
13673 copyright owner complains and demonstrates that it is his work and he
13674 doesn't give permission.
<footnote><para>
13676 There would be a complication with derivative works that I have not
13677 solved here. In my view, the law of derivatives creates a more complicated
13678 system than is justified by the marginal incentive it creates.
13680 The meaning of an unmarked work would therefore be "use unless someone
13681 complains." If someone does complain, then the obligation would be to
13682 stop using the work in any new
13683 <!-- PAGE BREAK 296 -->
13684 work from then on though no penalty would attach for existing uses.
13685 This would create a strong incentive for copyright owners to mark
13689 That in turn raises the question about how work should best be
13690 marked. Here again, the system needs to adjust as the technologies
13691 evolve. The best way to ensure that the system evolves is to limit the
13692 Copyright Office's role to that of approving standards for marking
13693 content that have been crafted elsewhere.
13696 For example, if a recording industry association devises a method for
13697 marking CDs, it would propose that to the Copyright Office. The
13698 Copyright Office would hold a hearing, at which other proposals could
13699 be made. The Copyright Office would then select the proposal that it
13700 judged preferable, and it would base that choice
13701 <emphasis>solely
</emphasis> upon the consideration of which method
13702 could best be integrated into the registration and renewal system. We
13703 would not count on the government to innovate; but we would count on
13704 the government to keep the product of innovation in line with its
13705 other important functions.
13708 Finally, marking content clearly would simplify registration
13709 requirements. If photographs were marked by author and year, there
13710 would be little reason not to allow a photographer to reregister, for
13711 example, all photographs taken in a particular year in one quick
13712 step. The aim of the formality is not to burden the creator; the
13713 system itself should be kept as simple as possible.
13716 The objective of formalities is to make things clear. The existing
13717 system does nothing to make things clear. Indeed, it seems designed to
13718 make things unclear.
13721 If formalities such as registration were reinstated, one of the most
13722 difficult aspects of relying upon the public domain would be removed.
13723 It would be simple to identify what content is presumptively free; it
13724 would be simple to identify who controls the rights for a particular
13725 kind of content; it would be simple to assert those rights, and to renew
13726 that assertion at the appropriate time.
13729 <!-- PAGE BREAK 297 -->
13732 <section id=
"shortterms">
13733 <title>2. Shorter Terms
</title>
13735 The term of copyright has gone from fourteen years to ninety-five
13736 years for corporate authors, and life of the author plus seventy years for
13740 In
<citetitle>The Future of Ideas
</citetitle>, I proposed a seventy-five-year term,
13741 granted in five-year increments with a requirement of renewal every
13742 five years. That seemed radical enough at the time. But after we lost
13743 <citetitle>Eldred
</citetitle> v.
<citetitle>Ashcroft
</citetitle>, the proposals became even more
13744 radical.
<citetitle>The Economist
</citetitle> endorsed a proposal for a fourteen-year
13745 copyright term.
<footnote><para>
13748 "A Radical Rethink,"
<citetitle>Economist
</citetitle>,
366:
8308 (
25 January
2003):
15,
13750 <ulink url=
"http://free-culture.cc/notes/">link #
74</ulink>.
13752 Others have proposed tying the term to the term for patents.
13755 I agree with those who believe that we need a radical change in
13756 copyright's term. But whether fourteen years or seventy-five, there
13757 are four principles that are important to keep in mind about copyright
13760 <orderedlist numeration=
"arabic">
13763 <emphasis>Keep it short:
</emphasis> The term should be as long as
13764 necessary to give incentives to create, but no longer. If it were tied
13765 to very strong protections for authors (so authors were able to
13766 reclaim rights from publishers), rights to the same work (not
13767 derivative works) might be extended further. The key is not to tie the
13768 work up with legal regulations when it no longer benefits an author.
13772 <emphasis>Keep it simple:
</emphasis> The line between the public
13773 domain and protected content must be kept clear. Lawyers like the
13774 fuzziness of "fair use," and the distinction between "ideas" and
13775 "expression." That kind of law gives them lots of work. But our
13776 framers had a simpler idea in mind: protected versus unprotected. The
13777 value of short terms is that there is little need to build exceptions
13778 into copyright when the term itself is kept short. A clear and active
13779 "lawyer-free zone" makes the complexities of "fair use" and
13780 "idea/expression" less necessary to navigate.
13781 <!-- PAGE BREAK 298 -->
13785 <emphasis>Keep it alive:
</emphasis> Copyright should have to be
13786 renewed. Especially if the maximum term is long, the copyright owner
13787 should be required to signal periodically that he wants the protection
13788 continued. This need not be an onerous burden, but there is no reason
13789 this monopoly protection has to be granted for free. On average, it
13790 takes ninety minutes for a veteran to apply for a
13791 pension.
<footnote><para>
13793 Department of Veterans Affairs, Veteran's Application for Compensation
13794 and/or Pension, VA Form
21-
526 (OMB Approved No.
2900-
0001),
13796 <ulink url=
"http://free-culture.cc/notes/">link #
75</ulink>.
13798 If we make veterans suffer that burden, I don't see why we couldn't
13799 require authors to spend ten minutes every fifty years to file a
13801 <indexterm><primary>veterans' pensions
</primary></indexterm>
13805 <emphasis>Keep it prospective:
</emphasis> Whatever the term of
13806 copyright should be, the clearest lesson that economists teach is that
13807 a term once given should not be extended. It might have been a mistake
13808 in
1923 for the law to offer authors only a fifty-six-year term. I
13809 don't think so, but it's possible. If it was a mistake, then the
13810 consequence was that we got fewer authors to create in
1923 than we
13811 otherwise would have. But we can't correct that mistake today by
13812 increasing the term. No matter what we do today, we will not increase
13813 the number of authors who wrote in
1923. Of course, we can increase
13814 the reward that those who write now get (or alternatively, increase
13815 the copyright burden that smothers many works that are today
13816 invisible). But increasing their reward will not increase their
13817 creativity in
1923. What's not done is not done, and there's nothing
13818 we can do about that now.
</para></listitem>
13821 These changes together should produce an
<emphasis>average
</emphasis>
13822 copyright term that is much shorter than the current term. Until
1976,
13823 the average term was just
32.2 years. We should be aiming for the
13827 No doubt the extremists will call these ideas "radical." (After all, I
13828 call them "extremists.") But again, the term I recommended was longer
13829 than the term under Richard Nixon. How "radical" can it be to ask for
13830 a more generous copyright law than Richard Nixon presided over?
13833 <!-- PAGE BREAK 299 -->
13836 <section id=
"freefairuse">
13837 <title>3. Free Use Vs. Fair Use
</title>
13839 As I observed at the beginning of this book, property law originally
13840 granted property owners the right to control their property from the
13841 ground to the heavens. The airplane came along. The scope of property
13842 rights quickly changed. There was no fuss, no constitutional
13843 challenge. It made no sense anymore to grant that much control, given
13844 the emergence of that new technology.
13847 Our Constitution gives Congress the power to give authors "exclusive
13848 right" to "their writings." Congress has given authors an exclusive
13849 right to "their writings" plus any derivative writings (made by
13850 others) that are sufficiently close to the author's original
13851 work. Thus, if I write a book, and you base a movie on that book, I
13852 have the power to deny you the right to release that movie, even
13853 though that movie is not "my writing."
13856 Congress granted the beginnings of this right in
1870, when it
13857 expanded the exclusive right of copyright to include a right to
13858 control translations and dramatizations of a work.
<footnote><para>
13860 Benjamin Kaplan,
<citetitle>An Unhurried View of Copyright
</citetitle> (New York: Columbia
13861 University Press,
1967),
32.
13863 The courts have expanded it slowly through judicial interpretation
13864 ever since. This expansion has been commented upon by one of the law's
13865 greatest judges, Judge Benjamin Kaplan.
13866 <indexterm><primary>Kaplan, Benjamin
</primary></indexterm>
13870 So inured have we become to the extension of the monopoly to a
13871 large range of so-called derivative works, that we no longer sense
13872 the oddity of accepting such an enlargement of copyright while
13873 yet intoning the abracadabra of idea and expression.
<footnote><para>
13874 <!-- f6. --> Ibid.,
56.
13879 I think it's time to recognize that there are airplanes in this field and
13880 the expansiveness of these rights of derivative use no longer make
13881 sense. More precisely, they don't make sense for the period of time that
13882 a copyright runs. And they don't make sense as an amorphous grant.
13883 Consider each limitation in turn.
13886 <emphasis>Term:
</emphasis> If Congress wants to grant a derivative
13887 right, then that right should be for a much shorter term. It makes
13888 sense to protect John
13890 <!-- PAGE BREAK 300 -->
13891 Grisham's right to sell the movie rights to his latest novel (or at least
13892 I'm willing to assume it does); but it does not make sense for that right
13893 to run for the same term as the underlying copyright. The derivative
13894 right could be important in inducing creativity; it is not important long
13895 after the creative work is done.
13896 <indexterm><primary>Grisham, John
</primary></indexterm>
13899 <emphasis>Scope:
</emphasis> Likewise should the scope of derivative
13900 rights be narrowed. Again, there are some cases in which derivative
13901 rights are important. Those should be specified. But the law should
13902 draw clear lines around regulated and unregulated uses of copyrighted
13903 material. When all "reuse" of creative material was within the control
13904 of businesses, perhaps it made sense to require lawyers to negotiate
13905 the lines. It no longer makes sense for lawyers to negotiate the
13906 lines. Think about all the creative possibilities that digital
13907 technologies enable; now imagine pouring molasses into the
13908 machines. That's what this general requirement of permission does to
13909 the creative process. Smothers it.
13912 This was the point that Alben made when describing the making of the
13913 Clint Eastwood CD. While it makes sense to require negotiation for
13914 foreseeable derivative rights
—turning a book into a movie, or a
13915 poem into a musical score
—it doesn't make sense to require
13916 negotiation for the unforeseeable. Here, a statutory right would make
13920 In each of these cases, the law should mark the uses that are
13921 protected, and the presumption should be that other uses are not
13922 protected. This is the reverse of the recommendation of my colleague
13923 Paul Goldstein.
<footnote>
13926 Paul Goldstein,
<citetitle>Copyright's Highway: From Gutenberg to the Celestial
13927 Jukebox
</citetitle> (Stanford: Stanford University Press,
2003),
187–216.
13928 <indexterm><primary>Goldstein, Paul
</primary></indexterm>
13930 His view is that the law should be written so that
13931 expanded protections follow expanded uses.
13934 Goldstein's analysis would make perfect sense if the cost of the legal
13935 system were small. But as we are currently seeing in the context of
13936 the Internet, the uncertainty about the scope of protection, and the
13937 incentives to protect existing architectures of revenue, combined with
13938 a strong copyright, weaken the process of innovation.
13941 The law could remedy this problem either by removing protection
13942 <!-- PAGE BREAK 301 -->
13943 beyond the part explicitly drawn or by granting reuse rights upon
13944 certain statutory conditions. Either way, the effect would be to free
13945 a great deal of culture to others to cultivate. And under a statutory
13946 rights regime, that reuse would earn artists more income.
13950 <section id=
"liberatemusic">
13951 <title>4. Liberate the Music
—Again
</title>
13953 The battle that got this whole war going was about music, so it
13954 wouldn't be fair to end this book without addressing the issue that
13955 is, to most people, most pressing
—music. There is no other
13956 policy issue that better teaches the lessons of this book than the
13957 battles around the sharing of music.
13960 The appeal of file-sharing music was the crack cocaine of the
13961 Internet's growth. It drove demand for access to the Internet more
13962 powerfully than any other single application. It was the Internet's
13963 killer app
—possibly in two senses of that word. It no doubt was
13964 the application that drove demand for bandwidth. It may well be the
13965 application that drives demand for regulations that in the end kill
13966 innovation on the network.
13969 The aim of copyright, with respect to content in general and music in
13970 particular, is to create the incentives for music to be composed,
13971 performed, and, most importantly, spread. The law does this by giving
13972 an exclusive right to a composer to control public performances of his
13973 work, and to a performing artist to control copies of her performance.
13976 File-sharing networks complicate this model by enabling the spread of
13977 content for which the performer has not been paid. But of course,
13978 that's not all the file-sharing networks do. As I described in chapter
13979 <xref xrefstyle=
"select: labelnumber" linkend=
"piracy"/>, they enable
13980 four different kinds of sharing:
13982 <orderedlist numeration=
"upperalpha">
13985 There are some who are using sharing networks as substitutes
13986 for purchasing CDs.
13990 There are also some who are using sharing networks to sample,
13991 on the way to purchasing CDs.
13994 <!-- PAGE BREAK 302 -->
13996 There are many who are using file-sharing networks to get access to
13997 content that is no longer sold but is still under copyright or that
13998 would have been too cumbersome to buy off the Net.
14002 There are many who are using file-sharing networks to get access to
14003 content that is not copyrighted or to get access that the copyright
14004 owner plainly endorses.
14008 Any reform of the law needs to keep these different uses in focus. It
14009 must avoid burdening type D even if it aims to eliminate type A. The
14010 eagerness with which the law aims to eliminate type A, moreover,
14011 should depend upon the magnitude of type B. As with VCRs, if the net
14012 effect of sharing is actually not very harmful, the need for regulation is
14013 significantly weakened.
14016 As I said in chapter
<xref xrefstyle=
"select: labelnumber"
14017 linkend=
"piracy"/>, the actual harm caused by sharing is
14018 controversial. For the purposes of this chapter, however, I assume
14019 the harm is real. I assume, in other words, that type A sharing is
14020 significantly greater than type B, and is the dominant use of sharing
14024 Nonetheless, there is a crucial fact about the current technological
14025 context that we must keep in mind if we are to understand how the law
14029 Today, file sharing is addictive. In ten years, it won't be. It is
14030 addictive today because it is the easiest way to gain access to a
14031 broad range of content. It won't be the easiest way to get access to
14032 a broad range of content in ten years. Today, access to the Internet
14033 is cumbersome and slow
—we in the United States are lucky to have
14034 broadband service at
1.5 MBs, and very rarely do we get service at
14035 that speed both up and down. Although wireless access is growing, most
14036 of us still get access across wires. Most only gain access through a
14037 machine with a keyboard. The idea of the always on, always connected
14038 Internet is mainly just an idea.
14041 But it will become a reality, and that means the way we get access to
14042 the Internet today is a technology in transition. Policy makers should
14043 not make policy on the basis of technology in transition. They should
14044 <!-- PAGE BREAK 303 -->
14045 make policy on the basis of where the technology is going. The
14046 question should not be, how should the law regulate sharing in this
14047 world? The question should be, what law will we require when the
14048 network becomes the network it is clearly becoming? That network is
14049 one in which every machine with electricity is essentially on the Net;
14050 where everywhere you are
—except maybe the desert or the
14051 Rockies
—you can instantaneously be connected to the
14052 Internet. Imagine the Internet as ubiquitous as the best cell-phone
14053 service, where with the flip of a device, you are connected.
14056 In that world, it will be extremely easy to connect to services that
14057 give you access to content on the fly
—such as Internet radio,
14058 content that is streamed to the user when the user demands. Here,
14059 then, is the critical point: When it is
<emphasis>extremely
</emphasis>
14060 easy to connect to services that give access to content, it will be
14061 <emphasis>easier
</emphasis> to connect to services that give you
14062 access to content than it will be to download and store content
14063 <emphasis>on the many devices you will have for playing
14064 content
</emphasis>. It will be easier, in other words, to subscribe
14065 than it will be to be a database manager, as everyone in the
14066 download-sharing world of Napster-like technologies essentially
14067 is. Content services will compete with content sharing, even if the
14068 services charge money for the content they give access to. Already
14069 cell-phone services in Japan offer music (for a fee) streamed over
14070 cell phones (enhanced with plugs for headphones). The Japanese are
14071 paying for this content even though "free" content is available in the
14072 form of MP3s across the Web.
<footnote><para>
14074 See, for example, "Music Media Watch," The J@pan Inc. Newsletter,
3
14075 April
2002, available at
14076 <ulink url=
"http://free-culture.cc/notes/">link #
76</ulink>.
14081 This point about the future is meant to suggest a perspective on the
14082 present: It is emphatically temporary. The "problem" with file
14083 sharing
—to the extent there is a real problem
—is a problem
14084 that will increasingly disappear as it becomes easier to connect to
14085 the Internet. And thus it is an extraordinary mistake for policy
14086 makers today to be "solving" this problem in light of a technology
14087 that will be gone tomorrow. The question should not be how to
14088 regulate the Internet to eliminate file sharing (the Net will evolve
14089 that problem away). The question instead should be how to assure that
14090 artists get paid, during
14092 <!-- PAGE BREAK 304 -->
14093 this transition between twentieth-century models for doing business
14094 and twenty-first-century technologies.
14097 The answer begins with recognizing that there are different "problems"
14098 here to solve. Let's start with type D content
—uncopyrighted
14099 content or copyrighted content that the artist wants shared. The
14100 "problem" with this content is to make sure that the technology that
14101 would enable this kind of sharing is not rendered illegal. You can
14102 think of it this way: Pay phones are used to deliver ransom demands,
14103 no doubt. But there are many who need to use pay phones who have
14104 nothing to do with ransoms. It would be wrong to ban pay phones in
14105 order to eliminate kidnapping.
14108 Type C content raises a different "problem." This is content that was,
14109 at one time, published and is no longer available. It may be
14110 unavailable because the artist is no longer valuable enough for the
14111 record label he signed with to carry his work. Or it may be
14112 unavailable because the work is forgotten. Either way, the aim of the
14113 law should be to facilitate the access to this content, ideally in a
14114 way that returns something to the artist.
14117 Again, the model here is the used book store. Once a book goes out of
14118 print, it may still be available in libraries and used book
14119 stores. But libraries and used book stores don't pay the copyright
14120 owner when someone reads or buys an out-of-print book. That makes
14121 total sense, of course, since any other system would be so burdensome
14122 as to eliminate the possibility of used book stores' existing. But
14123 from the author's perspective, this "sharing" of his content without
14124 his being compensated is less than ideal.
14127 The model of used book stores suggests that the law could simply deem
14128 out-of-print music fair game. If the publisher does not make copies of
14129 the music available for sale, then commercial and noncommercial
14130 providers would be free, under this rule, to "share" that content,
14131 even though the sharing involved making a copy. The copy here would be
14132 incidental to the trade; in a context where commercial publishing has
14133 ended, trading music should be as free as trading books.
14137 <!-- PAGE BREAK 305 -->
14138 Alternatively, the law could create a statutory license that would
14139 ensure that artists get something from the trade of their work. For
14140 example, if the law set a low statutory rate for the commercial
14141 sharing of content that was not offered for sale by a commercial
14142 publisher, and if that rate were automatically transferred to a trust
14143 for the benefit of the artist, then businesses could develop around
14144 the idea of trading this content, and artists would benefit from this
14148 This system would also create an incentive for publishers to keep
14149 works available commercially. Works that are available commercially
14150 would not be subject to this license. Thus, publishers could protect
14151 the right to charge whatever they want for content if they kept the
14152 work commercially available. But if they don't keep it available, and
14153 instead, the computer hard disks of fans around the world keep it
14154 alive, then any royalty owed for such copying should be much less than
14155 the amount owed a commercial publisher.
14158 The hard case is content of types A and B, and again, this case is
14159 hard only because the extent of the problem will change over time, as
14160 the technologies for gaining access to content change. The law's
14161 solution should be as flexible as the problem is, understanding that
14162 we are in the middle of a radical transformation in the technology for
14163 delivering and accessing content.
14166 So here's a solution that will at first seem very strange to both sides
14167 in this war, but which upon reflection, I suggest, should make some sense.
14170 Stripped of the rhetoric about the sanctity of property, the basic
14171 claim of the content industry is this: A new technology (the Internet)
14172 has harmed a set of rights that secure copyright. If those rights are to
14173 be protected, then the content industry should be compensated for that
14174 harm. Just as the technology of tobacco harmed the health of millions
14175 of Americans, or the technology of asbestos caused grave illness to
14176 thousands of miners, so, too, has the technology of digital networks
14177 harmed the interests of the content industry.
14180 <!-- PAGE BREAK 306 -->
14181 I love the Internet, and so I don't like likening it to tobacco or
14182 asbestos. But the analogy is a fair one from the perspective of the
14183 law. And it suggests a fair response: Rather than seeking to destroy
14184 the Internet, or the p2p technologies that are currently harming
14185 content providers on the Internet, we should find a relatively simple
14186 way to compensate those who are harmed.
14189 The idea would be a modification of a proposal that has been
14190 floated by Harvard law professor William Fisher.
<footnote>
14193 William Fisher,
<citetitle>Digital Music: Problems and Possibilities
</citetitle> (last
14194 revised:
10 October
2000), available at
14195 <ulink url=
"http://free-culture.cc/notes/">link #
77</ulink>; William
14196 Fisher,
<citetitle>Promises to Keep: Technology, Law, and the Future of
14197 Entertainment
</citetitle> (forthcoming) (Stanford: Stanford University Press,
14198 2004), ch.
6, available at
14199 <ulink url=
"http://free-culture.cc/notes/">link #
78</ulink>. Professor
14200 Netanel has proposed a related idea that would exempt noncommercial
14201 sharing from the reach of copyright and would establish compensation
14202 to artists to balance any loss. See Neil Weinstock Netanel, "Impose a
14203 Noncommercial Use Levy to Allow Free P2P File Sharing," available at
14204 <ulink url=
"http://free-culture.cc/notes/">link #
79</ulink>. For other proposals, see Lawrence Lessig, "Who's Holding Back
14205 Broadband?"
<citetitle>Washington Post
</citetitle>,
8 January
2002, A17; Philip S. Corwin on
14206 behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr.,
14207 Chairman of the Senate Foreign Relations Committee,
26 February
2002,
14209 <ulink url=
"http://free-culture.cc/notes/">link #
80</ulink>; Serguei Osokine,
<citetitle>A Quick Case for Intellectual Property
14210 Use Fee (IPUF)
</citetitle>,
3 March
2002, available at
14211 <ulink url=
"http://free-culture.cc/notes/">link #
81</ulink>; Jefferson Graham,
14212 "Kazaa, Verizon Propose to Pay Artists Directly,"
<citetitle>USA Today
</citetitle>,
13 May
14214 <ulink url=
"http://free-culture.cc/notes/">link #
82</ulink>; Steven M. Cherry, "Getting Copyright Right,"
14215 IEEE Spectrum Online,
1 July
2002, available at
14216 <ulink url=
"http://free-culture.cc/notes/">link #
83</ulink>; Declan
14217 McCullagh, "Verizon's Copyright Campaign," CNET News.com,
27 August
14219 <ulink url=
"http://free-culture.cc/notes/">link #
84</ulink>.
14220 Fisher's proposal is very similar to Richard Stallman's proposal for
14221 DAT. Unlike Fisher's, Stallman's proposal would not pay artists directly
14222 proportionally, though more popular artists would get more than the less
14223 popular. As is typical with Stallman, his proposal predates the current
14224 debate by about a decade. See
14225 <ulink url=
"http://free-culture.cc/notes/">link #
85</ulink>.
14226 <indexterm><primary>Fisher, William
</primary></indexterm>
14227 <indexterm><primary>Netanel, Neil Weinstock
</primary></indexterm>
14228 <indexterm><primary>Promises to Keep (Fisher)
</primary></indexterm>
14230 Fisher suggests a very clever way around the current impasse of the
14231 Internet. Under his plan, all content capable of digital transmission
14232 would (
1) be marked with a digital watermark (don't worry about how
14233 easy it is to evade these marks; as you'll see, there's no incentive
14234 to evade them). Once the content is marked, then entrepreneurs would
14235 develop (
2) systems to monitor how many items of each content were
14236 distributed. On the basis of those numbers, then (
3) artists would be
14237 compensated. The compensation would be paid for by (
4) an appropriate
14241 Fisher's proposal is careful and comprehensive. It raises a million
14242 questions, most of which he answers well in his upcoming book,
14243 <citetitle>Promises to Keep
</citetitle>. The modification that I would make is relatively
14244 simple: Fisher imagines his proposal replacing the existing copyright
14245 system. I imagine it complementing the existing system. The aim of
14246 the proposal would be to facilitate compensation to the extent that
14247 harm could be shown. This compensation would be temporary, aimed at
14248 facilitating a transition between regimes. And it would require
14249 renewal after a period of years. If it continues to make sense to
14250 facilitate free exchange of content, supported through a taxation
14251 system, then it can be continued. If this form of protection is no
14252 longer necessary, then the system could lapse into the old system of
14253 controlling access.
14254 <indexterm><primary>Promises to Keep (Fisher)
</primary></indexterm>
14257 Fisher would balk at the idea of allowing the system to lapse. His aim
14258 is not just to ensure that artists are paid, but also to ensure that
14259 the system supports the widest range of "semiotic democracy"
14260 possible. But the aims of semiotic democracy would be satisfied if the
14261 other changes I described were accomplished
—in particular, the
14262 limits on derivative
14264 <!-- PAGE BREAK 307 -->
14265 uses. A system that simply charges for access would not greatly burden
14266 semiotic democracy if there were few limitations on what one was
14267 allowed to do with the content itself.
14269 <indexterm><primary>Real Networks
</primary></indexterm>
14271 No doubt it would be difficult to calculate the proper measure of
14272 "harm" to an industry. But the difficulty of making that calculation
14273 would be outweighed by the benefit of facilitating innovation. This
14274 background system to compensate would also not need to interfere with
14275 innovative proposals such as Apple's MusicStore. As experts predicted
14276 when Apple launched the MusicStore, it could beat "free" by being
14277 easier than free is. This has proven correct: Apple has sold millions
14278 of songs at even the very high price of
99 cents a song. (At
99 cents,
14279 the cost is the equivalent of a per-song CD price, though the labels
14280 have none of the costs of a CD to pay.) Apple's move was countered by
14281 Real Networks, offering music at just
79 cents a song. And no doubt
14282 there will be a great deal of competition to offer and sell music
14286 This competition has already occurred against the background of "free"
14287 music from p2p systems. As the sellers of cable television have known
14288 for thirty years, and the sellers of bottled water for much more than
14289 that, there is nothing impossible at all about "competing with free."
14290 Indeed, if anything, the competition spurs the competitors to offer
14291 new and better products. This is precisely what the competitive market
14292 was to be about. Thus in Singapore, though piracy is rampant, movie
14293 theaters are often luxurious
—with "first class" seats, and meals
14294 served while you watch a movie
—as they struggle and succeed in
14295 finding ways to compete with "free."
14298 This regime of competition, with a backstop to assure that artists
14299 don't lose, would facilitate a great deal of innovation in the
14300 delivery of content. That competition would continue to shrink type A
14301 sharing. It would inspire an extraordinary range of new
14302 innovators
—ones who would have a right to the content, and would
14303 no longer fear the uncertain and barbarically severe punishments of
14307 In summary, then, my proposal is this:
14311 <!-- PAGE BREAK 308 -->
14312 The Internet is in transition. We should not be regulating a
14313 technology in transition. We should instead be regulating to minimize
14314 the harm to interests affected by this technological change, while
14315 enabling, and encouraging, the most efficient technology we can
14319 We can minimize that harm while maximizing the benefit to innovation
14322 <orderedlist numeration=
"arabic">
14325 guaranteeing the right to engage in type D sharing;
14329 permitting noncommercial type C sharing without liability,
14330 and commercial type C sharing at a low and fixed rate set by
14335 while in this transition, taxing and compensating for type A
14336 sharing, to the extent actual harm is demonstrated.
14340 But what if "piracy" doesn't disappear? What if there is a competitive
14341 market providing content at a low cost, but a significant number of
14342 consumers continue to "take" content for nothing? Should the law do
14346 Yes, it should. But, again, what it should do depends upon how the
14347 facts develop. These changes may not eliminate type A sharing. But the
14348 real issue is not whether it eliminates sharing in the abstract. The
14349 real issue is its effect on the market. Is it better (a) to have a
14350 technology that is
95 percent secure and produces a market of size
<citetitle>x
</citetitle>,
14351 or (b) to have a technology that is
50 percent secure but produces a
14352 market of five times
<citetitle>x
</citetitle>? Less secure might produce more unauthorized
14353 sharing, but it is likely to also produce a much bigger market in
14354 authorized sharing. The most important thing is to assure artists'
14355 compensation without breaking the Internet. Once that's assured, then
14356 it may well be appropriate to find ways to track down the petty
14360 But we're a long way away from whittling the problem down to this
14361 subset of type A sharers. And our focus until we're there should not
14362 be on finding ways to break the Internet. Our focus until we're there
14364 <!-- PAGE BREAK 309 -->
14365 should be on how to make sure the artists are paid, while protecting
14366 the space for innovation and creativity that the Internet is.
14370 <section id=
"firelawyers">
14371 <title>5. Fire Lots of Lawyers
</title>
14373 I'm a lawyer. I make lawyers for a living. I believe in the law. I believe
14374 in the law of copyright. Indeed, I have devoted my life to working in
14375 law, not because there are big bucks at the end but because there are
14376 ideals at the end that I would love to live.
14379 Yet much of this book has been a criticism of lawyers, or the role
14380 lawyers have played in this debate. The law speaks to ideals, but it
14381 is my view that our profession has become too attuned to the
14382 client. And in a world where the rich clients have one strong view,
14383 the unwillingness of the profession to question or counter that one
14384 strong view queers the law.
14387 The evidence of this bending is compelling. I'm attacked as a
14388 "radical" by many within the profession, yet the positions that I am
14389 advocating are precisely the positions of some of the most moderate
14390 and significant figures in the history of this branch of the
14391 law. Many, for example, thought crazy the challenge that we brought to
14392 the Copyright Term Extension Act. Yet just thirty years ago, the
14393 dominant scholar and practitioner in the field of copyright, Melville
14394 Nimmer, thought it obvious.
<footnote><para>
14396 Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer
14397 Memorial Lecture),
<citetitle>UCLA Law Review
</citetitle> 48 (
2001):
1057,
1069–70.
14402 However, my criticism of the role that lawyers have played in this
14403 debate is not just about a professional bias. It is more importantly
14404 about our failure to actually reckon the costs of the law.
14407 Economists are supposed to be good at reckoning costs and benefits.
14408 But more often than not, economists, with no clue about how the legal
14409 system actually functions, simply assume that the transaction costs of
14410 the legal system are slight.
<footnote><para>
14412 A good example is the work of Professor Stan Liebowitz. Liebowitz is
14413 to be commended for his careful review of data about infringement,
14414 leading him to question his own publicly stated
14415 position
—twice. He initially predicted that downloading would
14416 substantially harm the industry. He then revised his view in light of
14417 the data, and he has since revised his view again. Compare Stan
14418 J. Liebowitz,
<citetitle>Rethinking the Network Economy: The True Forces That
14419 Drive the Digital Marketplace
</citetitle> (New York: Amacom,
2002), (reviewing his
14420 original view but expressing skepticism) with Stan J. Liebowitz,
14421 "Will MP3s Annihilate the Record Industry?" working paper, June
2003,
14423 <ulink url=
"http://free-culture.cc/notes/">link #
86</ulink>.
14424 Liebowitz's careful analysis is extremely valuable in estimating the
14425 effect of file-sharing technology. In my view, however, he
14426 underestimates the costs of the legal system. See, for example,
14427 <citetitle>Rethinking
</citetitle>,
174–76.
14428 <indexterm><primary>Liebowitz, Stan
</primary></indexterm>
14430 They see a system that has been around for hundreds of years, and they
14431 assume it works the way their elementary school civics class taught
14435 <!-- PAGE BREAK 310 -->
14436 But the legal system doesn't work. Or more accurately, it doesn't work
14437 for anyone except those with the most resources. Not because the
14438 system is corrupt. I don't think our legal system (at the federal
14439 level, at least) is at all corrupt. I mean simply because the costs of
14440 our legal system are so astonishingly high that justice can
14441 practically never be done.
14444 These costs distort free culture in many ways. A lawyer's time is
14445 billed at the largest firms at more than $
400 per hour. How much time
14446 should such a lawyer spend reading cases carefully, or researching
14447 obscure strands of authority? The answer is the increasing reality:
14448 very little. The law depended upon the careful articulation and
14449 development of doctrine, but the careful articulation and development
14450 of legal doctrine depends upon careful work. Yet that careful work
14451 costs too much, except in the most high-profile and costly cases.
14454 The costliness and clumsiness and randomness of this system mock
14455 our tradition. And lawyers, as well as academics, should consider it
14456 their duty to change the way the law works
—or better, to change the
14457 law so that it works. It is wrong that the system works well only for the
14458 top
1 percent of the clients. It could be made radically more efficient,
14459 and inexpensive, and hence radically more just.
14462 But until that reform is complete, we as a society should keep the law
14463 away from areas that we know it will only harm. And that is precisely
14464 what the law will too often do if too much of our culture is left to
14468 Think about the amazing things your kid could do or make with digital
14469 technology
—the film, the music, the Web page, the blog. Or think
14470 about the amazing things your community could facilitate with digital
14471 technology
—a wiki, a barn raising, activism to change something.
14472 Think about all those creative things, and then imagine cold molasses
14473 poured onto the machines. This is what any regime that requires
14474 permission produces. Again, this is the reality of Brezhnev's Russia.
14477 The law should regulate in certain areas of culture
—but it should
14478 regulate culture only where that regulation does good. Yet lawyers
14480 <!-- PAGE BREAK 311 -->
14481 rarely test their power, or the power they promote, against this
14482 simple pragmatic question: "Will it do good?" When challenged about
14483 the expanding reach of the law, the lawyer answers, "Why not?"
14486 We should ask, "Why?" Show me why your regulation of culture is
14487 needed. Show me how it does good. And until you can show me both,
14488 keep your lawyers away.
14490 <!-- PAGE BREAK 312 -->
14494 <chapter label=
"17" id=
"c-notes">
14495 <title>NOTES
</title>
14497 Throughout this text, there are references to links on the World Wide
14498 Web. As anyone who has tried to use the Web knows, these links can be
14499 highly unstable. I have tried to remedy the instability by redirecting
14500 readers to the original source through the Web site associated with
14501 this book. For each link below, you can go to
14502 http://free-culture.cc/notes and locate the original source by
14503 clicking on the number after the # sign. If the original link remains
14504 alive, you will be redirected to that link. If the original link has
14505 disappeared, you will be redirected to an appropriate reference for
14508 <!--PAGE BREAK 336-->
14511 <chapter label=
"18" id=
"c-acknowledgments">
14512 <title>ACKNOWLEDGMENTS
</title>
14514 This book is the product of a long and as yet unsuccessful struggle that
14515 began when I read of Eric Eldred's war to keep books free. Eldred's
14516 work helped launch a movement, the free culture movement, and it is
14517 to him that this book is dedicated.
14519 <indexterm><primary>Rose, Mark
</primary></indexterm>
14521 I received guidance in various places from friends and academics,
14522 including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner,
14523 Mark Rose, and Kathleen Sullivan. And I received correction and
14524 guidance from many amazing students at Stanford Law School and
14525 Stanford University. They included Andrew B. Coan, John Eden, James
14526 P. Fellers, Christopher Guzelian, Erica Goldberg, Robert Hallman,
14527 Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, Alina Ng, and
14528 Erica Platt. I am particularly grateful to Catherine Crump and Harry
14529 Surden, who helped direct their research, and to Laura Lynch, who
14530 brilliantly managed the army that they assembled, and provided her own
14531 critical eye on much of this.
14534 Yuko Noguchi helped me to understand the laws of Japan as well as
14535 its culture. I am thankful to her, and to the many in Japan who helped
14536 me prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki,
14537 Michihiro Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro
14538 <!--PAGE BREAK 337-->
14539 Yonezawa. I am thankful as well as to Professor Nobuhiro Nakayama,
14540 and the Tokyo University Business Law Center, for giving me the
14541 chance to spend time in Japan, and to Tadashi Shiraishi and Kiyokazu
14542 Yamagami for their generous help while I was there.
14545 These are the traditional sorts of help that academics regularly draw
14546 upon. But in addition to them, the Internet has made it possible to
14547 receive advice and correction from many whom I have never even
14548 met. Among those who have responded with extremely helpful advice to
14549 requests on my blog about the book are Dr. Mohammad Al-Ubaydli, David
14550 Gerstein, and Peter DiMauro, as well as a long list of those who had
14551 specific ideas about ways to develop my argument. They included
14552 Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob Devine,
14553 Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy Hunsinger,
14554 Vaughn Iverson, John Karabaic, Jeff Keltner, James Lindenschmidt,
14555 K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan
14556 McMullen, Fred Norton, John Pormann, Pedro A. D. Rezende, Shabbir
14557 Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker,
14558 Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt
14559 Wasserman, Miljenko Williams, "Wink," Roger Wood, "Ximmbo da Jazz,"
14560 and Richard Yanco. (I apologize if I have missed anyone; with
14561 computers come glitches, and a crash of my e-mail system meant I lost
14562 a bunch of great replies.)
14565 Richard Stallman and Michael Carroll each read the whole book in
14566 draft, and each provided extremely helpful correction and advice.
14567 Michael helped me to see more clearly the significance of the
14568 regulation of derivitive works. And Richard corrected an
14569 embarrassingly large number of errors. While my work is in part
14570 inspired by Stallman's, he does not agree with me in important places
14571 throughout this book.
14574 Finally, and forever, I am thankful to Bettina, who has always
14575 insisted that there would be unending happiness away from these
14576 battles, and who has always been right. This slow learner is, as ever,
14577 grateful for her perpetual patience and love.
14579 <!--PAGE BREAK 338-->