Add higher resolution screen shots fro scan.

[text-free-culture-lessig.git] / freeculture.es_419.po

# SOME DESCRIPTIVE TITLE
# Copyright (C) YEAR Free Software Foundation, Inc.
# This file is distributed under the same license as the PACKAGE package.
# 
# Translators:
# pere <pere-transifex@hungry.com>, 2015
# RodrigoFlores <rodrigoflores1371@hotmail.com>, 2014
msgid ""
msgstr ""
"Project-Id-Version: Free Culture by Lawrence Lessig\n"
"POT-Creation-Date: 2015-04-03 14:40+0300\n"
"PO-Revision-Date: 2015-04-04 08:45+0000\n"
"Last-Translator: pere <pere-transifex@hungry.com>\n"
"Language-Team: Spanish (Latin America) (http://www.transifex.com/projects/p/free-culture-lessig/language/es_419/)\n"
"MIME-Version: 1.0\n"
"Content-Type: text/plain; charset=UTF-8\n"
"Content-Transfer-Encoding: 8bit\n"
"Language: es_419\n"
"Plural-Forms: nplurals=2; plural=(n != 1);\n"

#. type: Content of the copy entity
#: freeculture.xml:12
msgid "©"
msgstr "©"

#. type: Attribute 'lang' of: <book>
#: freeculture.xml:15
msgid "en"
msgstr "es"

#. type: Content of: <book><bookinfo><title>
#: freeculture.xml:17
msgid "Free Culture"
msgstr "Cultura Libre"

#. type: Content of: <book><bookinfo>
#: freeculture.xml:19
msgid "<abbrev>\"freeculture\"</abbrev>"
msgstr ""

#. type: Content of: <book><bookinfo><subtitle>
#: freeculture.xml:21
msgid ""
"HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL "
"CREATIVITY"
msgstr "CÓMO LOS MEDIOS UTILIZAN LA TECNOLOGÍA Y LA LEY PARA CONSTREÑIR LA CULTURA Y CONTROLAR LA CREATIVIDAD"

#. type: Content of: <book><bookinfo>
#: freeculture.xml:24
msgid "<pubdate>2004-03-25</pubdate>"
msgstr "<pubdate>2004-03-25</pubdate>"

#. type: Content of: <book><bookinfo><releaseinfo>
#: freeculture.xml:26
msgid "Version 2004-02-10"
msgstr "Versión 2004-02-10"

#. type: Content of: <book><bookinfo><authorgroup><author><firstname>
#: freeculture.xml:30
msgid "Lawrence"
msgstr "Lawrence"

#. type: Content of: <book><bookinfo><authorgroup><author><surname>
#: freeculture.xml:31
msgid "Lessig"
msgstr "Lessig"

#. type: Content of: <book><bookinfo><subjectset><subject><subjectterm>
#: freeculture.xml:40
msgid "Intellectual property&mdash;United States."
msgstr ""

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

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

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

#. type: Content of: <book><bookinfo><publisher><address>
#: freeculture.xml:56
#, no-wrap
msgid "<city>Oslo</city>"
msgstr "<city>Oslo</city>"

#. type: Content of: <book><bookinfo>
#: freeculture.xml:54
msgid ""
"<publisher> <publishername>Petter Reinholdtsen</publishername> <placeholder "
"type=\"address\" id=\"0\"/> </publisher> <copyright> <year>2004</year> "
"<holder>Lawrence Lessig</holder> </copyright>"
msgstr "<publisher> <publishername>Petter Reinholdtsen</publishername> <placeholder type=\"address\" id=\"0\"/> </publisher> <copyright> <year>2004</year> <holder>Lawrence Lessig</holder> </copyright>"

#. type: Content of: <book><bookinfo><legalnotice><para><inlinemediaobject>
#: freeculture.xml:66
msgid ""
"<imageobject> <imagedata fileref=\"images/cc.png\" contentdepth=\"3em\" "
"width=\"100%\" align=\"center\"/> </imageobject> <imageobject> <imagedata "
"fileref=\"images/cc.svg\" contentdepth=\"3em\" width=\"100%\" "
"align=\"center\"/> </imageobject>"
msgstr "<imageobject> <imagedata fileref=\"images/cc.png\" contentdepth=\"3em\" width=\"100%\" align=\"center\"/> </imageobject> <imageobject> <imagedata fileref=\"images/cc.svg\" contentdepth=\"3em\" width=\"100%\" align=\"center\"/> </imageobject>"

#. type: Content of:
#. <book><bookinfo><legalnotice><para><inlinemediaobject><textobject><phrase>
#: freeculture.xml:73
msgid "Creative Commons, Some rights reserved"
msgstr ""

#. type: Content of: <book><bookinfo><legalnotice><para>
#: freeculture.xml:65
msgid "<placeholder type=\"inlinemediaobject\" id=\"0\"/>"
msgstr "<placeholder type=\"inlinemediaobject\" id=\"0\"/>"

#. type: Content of: <book><colophon><para>
#: freeculture.xml:79 freeculture.xml:15595
msgid ""
"This version of <citetitle>Free Culture</citetitle> is licensed under a "
"Creative Commons license. This license permits non-commercial use of this "
"work, so long as attribution is given.  For more information about the "
"license, click the icon above, or visit <ulink "
"url=\"http://creativecommons.org/licenses/by-"
"nc/1.0/\">http://creativecommons.org/licenses/by-nc/1.0/</ulink>"
msgstr "Esta versión de <citetitle>Cultura Libre</citetitle> está protegida por una licencia Creative Commons. Esta licencia permite el uso no comercial de este trabajo mientras su atribución sea dada. Para más información acerca de la licencia, haga click en el icono superior o visite <ulink url=\"http://creativecommons.org/licenses/by-nc/1.0/\">http://creativecommons.org/licenses/by-nc/1.0/</ulink>"

#. type: Content of: <book><bookinfo><abstract><title>
#: freeculture.xml:88
msgid "ABOUT THE AUTHOR"
msgstr ""

#. type: Content of: <book><bookinfo><abstract><para>
#: freeculture.xml:90
msgid ""
"LAWRENCE LESSIG (<ulink "
"url=\"http://www.lessig.org\">http://www.lessig.org</ulink>), professor of "
"law and a John A. Wilson Distinguished Faculty Scholar at Stanford Law "
"School, is founder of the Stanford Center for Internet and Society and is "
"chairman of the Creative Commons (<ulink "
"url=\"http://creativecommons.org\">http://creativecommons.org</ulink>).  The"
" author of The Future of Ideas (Random House, 2001) and Code: And Other Laws"
" of Cyberspace (Basic Books, 1999), Lessig is a member of the boards of the "
"Public Library of Science, the Electronic Frontier Foundation, and Public "
"Knowledge. He was the winner of the Free Software Foundation's Award for the"
" Advancement of Free Software, twice listed in BusinessWeek's <quote>e.biz "
"25,</quote> and named one of Scientific American's <quote>50 "
"visionaries.</quote> A graduate of the University of Pennsylvania, Cambridge"
" University, and Yale Law School, Lessig clerked for Judge Richard Posner of"
" the U.S. Seventh Circuit Court of Appeals."
msgstr ""

#.  testing different ways to tag the cover page
#.    <imageobject remap="s" role="front">
#.      <imagedata fileref="images/cover_thumbnail.png" format="PNG"
#. width="444" />
#.    </imageobject>
#.    <imageobject remap="xs" role="front-small">
#.      <imagedata fileref="images/cover_thumbnail.png" format="PNG"
#. width="444" />
#.    </imageobject>
#.    <imageobject remap="cs" role="thumbnail">
#.      <imagedata fileref="images/cover_thumbnail.png" format="PNG"
#. width="444" />
#.    </imageobject>
#. type: Content of: <book><bookinfo><mediaobject>
#: freeculture.xml:111
msgid ""
"<imageobject remap=\"lrg\" role=\"front-large\"> <imagedata "
"fileref=\"images/cover.png\" format=\"PNG\" width=\"444\" /> </imageobject>"
msgstr ""

#.  LCCN from
#.      http://catalog.loc.gov/cgi-
#. bin/Pwebrecon.cgi?v3=1&DB=local&CMD=010a+2003063276&CNT=10+records+per+page
#. type: Content of: <book><bookinfo>
#: freeculture.xml:109
msgid ""
"  <placeholder type=\"mediaobject\" id=\"0\"/> <biblioid "
"class=\"isbn\">978-82-92812-XX-Y</biblioid> <biblioid "
"class=\"libraryofcongress\">2003063276</biblioid>"
msgstr ""

#. type: Content of: <book><dedication><para>
#: freeculture.xml:139
msgid "ALSO BY LAWRENCE LESSIG"
msgstr ""

#. type: Content of: <book><dedication><para>
#: freeculture.xml:142
msgid "The Future of Ideas: The Fate of the Commons in a Connected World"
msgstr ""

#. type: Content of: <book><dedication><para>
#: freeculture.xml:145
msgid "Code: And Other Laws of Cyberspace"
msgstr ""

#. type: Content of: <book><dedication><para>
#: freeculture.xml:154
msgid ""
"To Eric Eldred &mdash; whose work first drew me to this cause, and for whom "
"it continues still."
msgstr ""

#. type: Content of: <book><lot><title>
#: freeculture.xml:162
msgid "List of figures"
msgstr ""

#. type: Content of: <book><preface><title>
#: freeculture.xml:224
msgid "PREFACE"
msgstr ""

#. type: Content of: <book><preface><indexterm><primary>
#: freeculture.xml:225
msgid "Pogue, David"
msgstr ""

#. type: Content of: <book><preface><para>
#: freeculture.xml:227
msgid ""
"<emphasis role=\"bold\">At the end</emphasis> of his review of my first "
"book, <citetitle>Code: And Other Laws of Cyberspace</citetitle>, David "
"Pogue, a brilliant writer and author of countless technical and computer-"
"related texts, wrote this:"
msgstr ""

#. type: Content of: <book><preface><blockquote><para><footnote><para>
#: freeculture.xml:238
msgid ""
"David Pogue, <quote>Don't Just Chat, Do Something,</quote> <citetitle>New "
"York Times</citetitle>, 30 January 2000."
msgstr ""

#. type: Content of: <book><preface><blockquote><para>
#: freeculture.xml:234
msgid ""
"Unlike actual law, Internet software has no capacity to punish. It doesn't "
"affect people who aren't online (and only a tiny minority of the world "
"population is). And if you don't like the Internet's system, you can always "
"flip off the modem.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><preface><para>
#: freeculture.xml:243
msgid ""
"Pogue was skeptical of the core argument of the book&mdash;that software, or"
" <quote>code,</quote> functioned as a kind of law&mdash;and his review "
"suggested the happy thought that if life in cyberspace got bad, we could "
"always <quote>drizzle, drazzle, druzzle, drome</quote>-like simply flip a "
"switch and be back home. Turn off the modem, unplug the computer, and any "
"troubles that exist in <emphasis>that</emphasis> space wouldn't "
"<quote>affect</quote> us anymore."
msgstr ""

#. PAGE BREAK 12
#. type: Content of: <book><preface><para>
#: freeculture.xml:252
msgid ""
"Pogue might have been right in 1999&mdash;I'm skeptical, but maybe.  But "
"even if he was right then, the point is not right now: <citetitle>Free "
"Culture</citetitle> is about the troubles the Internet causes even after the"
" modem is turned off. It is an argument about how the battles that now rage "
"regarding life on-line have fundamentally affected <quote>people who aren't "
"online.</quote> There is no switch that will insulate us from the Internet's"
" effect."
msgstr ""

#. type: Content of: <book><preface><para>
#: freeculture.xml:263
msgid ""
"But unlike <citetitle>Code</citetitle>, the argument here is not much about "
"the Internet itself. It is instead about the consequence of the Internet to "
"a part of our tradition that is much more fundamental, and, as hard as this "
"is for a geek-wanna-be to admit, much more important."
msgstr ""

#. type: Content of: <book><preface><para><footnote><para>
#: freeculture.xml:275
msgid ""
"Richard M. Stallman, <citetitle>Free Software, Free Societies</citetitle> 57"
" (Joshua Gay, ed. 2002)."
msgstr ""

#. type: Content of: <book><preface><para>
#: freeculture.xml:270
msgid ""
"That tradition is the way our culture gets made. As I explain in the pages "
"that follow, we come from a tradition of <quote>free "
"culture</quote>&mdash;not <quote>free</quote> as in <quote>free beer</quote>"
" (to borrow a phrase from the founder of the free software "
"movement<placeholder type=\"footnote\" id=\"0\"/>), but <quote>free</quote> "
"as in <quote>free speech,</quote> <quote>free markets,</quote> <quote>free "
"trade,</quote> <quote>free enterprise,</quote> <quote>free will,</quote> and"
" <quote>free elections.</quote> A free culture supports and protects "
"creators and innovators. It does this directly by granting intellectual "
"property rights. But it does so indirectly by limiting the reach of those "
"rights, to guarantee that follow-on creators and innovators remain "
"<emphasis>as free as possible</emphasis> from the control of the past. A "
"free culture is not a culture without property, just as a free market is not"
" a market in which everything is free. The opposite of a free culture is a "
"<quote>permission culture</quote>&mdash;a culture in which creators get to "
"create only with the permission of the powerful, or of creators from the "
"past."
msgstr ""

#. type: Content of: <book><preface><para>
#: freeculture.xml:290
msgid ""
"If we understood this change, I believe we would resist it. Not "
"<quote>we</quote> on the Left or <quote>you</quote> on the Right, but we who"
" have no stake in the particular industries of culture that defined the "
"twentieth century.  Whether you are on the Left or the Right, if you are in "
"this sense disinterested, then the story I tell here will trouble you. For "
"the changes I describe affect values that both sides of our political "
"culture deem fundamental."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:298 freeculture.xml:952
msgid "power, concentration of"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:299 freeculture.xml:13786
msgid "CodePink Women in Peace"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:300 freeculture.xml:321 freeculture.xml:13787
msgid "Safire, William"
msgstr ""

#. type: Content of: <book><preface><indexterm><primary>
#: freeculture.xml:301
msgid "Stevens, Ted"
msgstr ""

#. type: Content of: <book><preface><para>
#: freeculture.xml:303
msgid ""
"We saw a glimpse of this bipartisan outrage in the early summer of 2003. As "
"the FCC considered changes in media ownership rules that would relax limits "
"on media concentration, an extraordinary coalition generated more than "
"700,000 letters to the FCC opposing the change.  As William Safire described"
" marching <quote>uncomfortably alongside CodePink Women for Peace and the "
"National Rifle Association, between liberal Olympia Snowe and conservative "
"Ted Stevens,</quote> he formulated perhaps most simply just what was at "
"stake: the concentration of power. And as he asked,"
msgstr ""

#. type: Content of: <book><preface><blockquote><para><footnote><para>
#: freeculture.xml:319
msgid ""
"William Safire, <quote>The Great Media Gulp,</quote> <citetitle>New York "
"Times</citetitle>, 22 May 2003.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><preface><blockquote><para>
#: freeculture.xml:315
msgid ""
"Does that sound unconservative? Not to me. The concentration of "
"power&mdash;political, corporate, media, cultural&mdash;should be anathema "
"to conservatives. The diffusion of power through local control, thereby "
"encouraging individual participation, is the essence of federalism and the "
"greatest expression of democracy.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><preface><para>
#: freeculture.xml:326
msgid ""
"This idea is an element of the argument of <citetitle>Free "
"Culture</citetitle>, though my focus is not just on the concentration of "
"power produced by concentrations in ownership, but more importantly, if "
"because less visibly, on the concentration of power produced by a radical "
"change in the effective scope of the law. The law is changing; that change "
"is altering the way our culture gets made; that change should worry "
"you&mdash;whether or not you care about the Internet, and whether you're on "
"Safire's left or on his right."
msgstr ""

#. type: Content of: <book><preface><para>
#: freeculture.xml:337
msgid ""
"<emphasis role=\"strong\">The inspiration</emphasis> for the title and for "
"much of the argument of this book comes from the work of Richard Stallman "
"and the Free Software Foundation. Indeed, as I reread Stallman's own work, "
"especially the essays in <citetitle>Free Software, Free Society</citetitle>,"
" I realize that all of the theoretical insights I develop here are insights "
"Stallman described decades ago. One could thus well argue that this work is "
"<quote>merely</quote> derivative."
msgstr ""

#. PAGE BREAK 14
#. type: Content of: <book><preface><para>
#: freeculture.xml:346
msgid ""
"I accept that criticism, if indeed it is a criticism. The work of a lawyer "
"is always derivative, and I mean to do nothing more in this book than to "
"remind a culture about a tradition that has always been its own.  Like "
"Stallman, I defend that tradition on the basis of values. Like Stallman, I "
"believe those are the values of freedom. And like Stallman, I believe those "
"are values of our past that will need to be defended in our future. A free "
"culture has been our past, but it will only be our future if we change the "
"path we are on right now.  Like Stallman's arguments for free software, an "
"argument for free culture stumbles on a confusion that is hard to avoid, and"
" even harder to understand. A free culture is not a culture without "
"property; it is not a culture in which artists don't get paid. A culture "
"without property, or in which creators can't get paid, is anarchy, not "
"freedom. Anarchy is not what I advance here."
msgstr ""

#. type: Content of: <book><preface><para>
#: freeculture.xml:364
msgid ""
"Instead, the free culture that I defend in this book is a balance between "
"anarchy and control. A free culture, like a free market, is filled with "
"property. It is filled with rules of property and contract that get enforced"
" by the state. But just as a free market is perverted if its property "
"becomes feudal, so too can a free culture be queered by extremism in the "
"property rights that define it. That is what I fear about our culture today."
" It is against that extremism that this book is written."
msgstr ""

#. type: Content of: <book><chapter><title>
#: freeculture.xml:379
msgid "INTRODUCTION"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:380 freeculture.xml:483 freeculture.xml:941
msgid "Wright brothers"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:382
msgid ""
"<emphasis role=\"strong\">On December 17</emphasis>, 1903, on a windy North "
"Carolina beach for just shy of one hundred seconds, the Wright brothers "
"demonstrated that a heavier-than-air, self-propelled vehicle could fly. The "
"moment was electric and its importance widely understood. Almost "
"immediately, there was an explosion of interest in this newfound technology "
"of manned flight, and a gaggle of innovators began to build upon it."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:389
msgid "air traffic, land ownership vs."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:390 freeculture.xml:14810
msgid "land ownership, air traffic and"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:391 freeculture.xml:4617 freeculture.xml:13689
#: freeculture.xml:14811
msgid "property rights"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><secondary>
#: freeculture.xml:391 freeculture.xml:14811
msgid "air traffic vs."
msgstr ""

#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:397
msgid ""
"St. George Tucker, <citetitle>Blackstone's Commentaries</citetitle> 3 (South"
" Hackensack, N.J.: Rothman Reprints, 1969), 18."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:393
msgid ""
"At the time the Wright brothers invented the airplane, American law held "
"that a property owner presumptively owned not just the surface of his land, "
"but all the land below, down to the center of the earth, and all the space "
"above, to <quote>an indefinite extent, upwards.</quote><placeholder "
"type=\"footnote\" id=\"0\"/> For many years, scholars had puzzled about how "
"best to interpret the idea that rights in land ran to the heavens. Did that "
"mean that you owned the stars? Could you prosecute geese for their willful "
"and regular trespass?"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:407
msgid ""
"Then came airplanes, and for the first time, this principle of American "
"law&mdash;deep within the foundations of our tradition, and acknowledged by "
"the most important legal thinkers of our past&mdash;mattered. If my land "
"reaches to the heavens, what happens when United flies over my field? Do I "
"have the right to banish it from my property? Am I allowed to enter into an "
"exclusive license with Delta Airlines? Could we set up an auction to decide "
"how much these rights are worth?"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:415 freeculture.xml:428 freeculture.xml:461
#: freeculture.xml:481 freeculture.xml:667 freeculture.xml:794
#: freeculture.xml:921 freeculture.xml:939 freeculture.xml:987
#: freeculture.xml:9539 freeculture.xml:13105 freeculture.xml:13890
msgid "Causby, Thomas Lee"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:416 freeculture.xml:429 freeculture.xml:462
#: freeculture.xml:482 freeculture.xml:668 freeculture.xml:795
#: freeculture.xml:922 freeculture.xml:940 freeculture.xml:988
#: freeculture.xml:9540 freeculture.xml:13106 freeculture.xml:13891
msgid "Causby, Tinie"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:418
msgid ""
"In 1945, these questions became a federal case. When North Carolina farmers "
"Thomas Lee and Tinie Causby started losing chickens because of low-flying "
"military aircraft (the terrified chickens apparently flew into the barn "
"walls and died), the Causbys filed a lawsuit saying that the government was "
"trespassing on their land. The airplanes, of course, never touched the "
"surface of the Causbys' land. But if, as Blackstone, Kent, and Coke had "
"said, their land reached to <quote>an indefinite extent, upwards,</quote> "
"then the government was trespassing on their property, and the Causbys "
"wanted it to stop."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:430
msgid "Douglas, William O."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:431 freeculture.xml:4506 freeculture.xml:5108
#: freeculture.xml:8852 freeculture.xml:14198
msgid "Supreme Court, U.S."
msgstr ""

#. type: Content of: <book><chapter><indexterm><secondary>
#: freeculture.xml:431
msgid "on airspace vs. land rights"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:433
msgid ""
"The Supreme Court agreed to hear the Causbys' case. Congress had declared "
"the airways public, but if one's property really extended to the heavens, "
"then Congress's declaration could well have been an unconstitutional "
"<quote>taking</quote> of property without compensation. The Court "
"acknowledged that <quote>it is ancient doctrine that common law ownership of"
" the land extended to the periphery of the universe.</quote> But Justice "
"Douglas had no patience for ancient doctrine. In a single paragraph, "
"hundreds of years of property law were erased. As he wrote for the Court,"
msgstr ""

#. type: Content of: <book><chapter><blockquote><para><footnote><para>
#: freeculture.xml:453
msgid ""
"United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find that "
"there could be a <quote>taking</quote> if the government's use of its land "
"effectively destroyed the value of the Causbys' land. This example was "
"suggested to me by Keith Aoki's wonderful piece, <quote>(Intellectual)  "
"Property and Sovereignty: Notes Toward a Cultural Geography of "
"Authorship,</quote> <citetitle>Stanford Law Review</citetitle> 48 (1996): "
"1293, 1333. See also Paul Goldstein, <citetitle>Real Property</citetitle> "
"(Mineola, N.Y.: Foundation Press, 1984), 1112&ndash;13.  <placeholder "
"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><chapter><blockquote><para>
#: freeculture.xml:444
msgid ""
"[The] doctrine has no place in the modern world. The air is a public "
"highway, as Congress has declared. Were that not true, every "
"transcontinental flight would subject the operator to countless trespass "
"suits. Common sense revolts at the idea. To recognize such private claims to"
" the airspace would clog these highways, seriously interfere with their "
"control and development in the public interest, and transfer into private "
"ownership that to which only the public has a just claim.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:467
msgid "<quote>Common sense revolts at the idea.</quote>"
msgstr ""

#. PAGE BREAK 18
#. type: Content of: <book><chapter><para>
#: freeculture.xml:471
msgid ""
"This is how the law usually works. Not often this abruptly or impatiently, "
"but eventually, this is how it works. It was Douglas's style not to dither. "
"Other justices would have blathered on for pages to reach the conclusion "
"that Douglas holds in a single line: <quote>Common sense revolts at the "
"idea.</quote> But whether it takes pages or a few words, it is the special "
"genius of a common law system, as ours is, that the law adjusts to the "
"technologies of the time. And as it adjusts, it changes. Ideas that were as "
"solid as rock in one age crumble in another."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:485
msgid ""
"Or at least, this is how things happen when there's no one powerful on the "
"other side of the change. The Causbys were just farmers. And though there "
"were no doubt many like them who were upset by the growing traffic in the "
"air (though one hopes not many chickens flew themselves into walls), the "
"Causbys of the world would find it very hard to unite and stop the idea, and"
" the technology, that the Wright brothers had birthed. The Wright brothers "
"spat airplanes into the technological meme pool; the idea then spread like a"
" virus in a chicken coop; farmers like the Causbys found themselves "
"surrounded by <quote>what seemed reasonable</quote> given the technology "
"that the Wrights had produced.  They could stand on their farms, dead "
"chickens in hand, and shake their fists at these newfangled technologies all"
" they wanted.  They could call their representatives or even file a lawsuit."
" But in the end, the force of what seems <quote>obvious</quote> to everyone "
"else&mdash;the power of <quote>common sense</quote>&mdash;would prevail. "
"Their <quote>private interest</quote> would not be allowed to defeat an "
"obvious public gain."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:506 freeculture.xml:9547 freeculture.xml:10242
msgid "Armstrong, Edwin Howard"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:507
msgid "Bell, Alexander Graham"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:508
msgid "Edison, Thomas"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:509
msgid "Faraday, Michael"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:510 freeculture.xml:4247 freeculture.xml:6789
#: freeculture.xml:10149
msgid "radio"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:510 freeculture.xml:6789
msgid "FM spectrum of"
msgstr ""

#.  PAGE BREAK 19
#. type: Content of: <book><chapter><para>
#: freeculture.xml:512
msgid ""
"<emphasis role='strong'>Edwin Howard Armstrong</emphasis> is one of "
"America's forgotten inventor geniuses. He came to the great American "
"inventor scene just after the titans Thomas Edison and Alexander Graham "
"Bell. But his work in the area of radio technology was perhaps the most "
"important of any single inventor in the first fifty years of radio. He was "
"better educated than Michael Faraday, who as a bookbinder's apprentice had "
"discovered electric induction in 1831. But he had the same intuition about "
"how the world of radio worked, and on at least three occasions, Armstrong "
"invented profoundly important technologies that advanced our understanding "
"of radio."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:525
msgid ""
"On the day after Christmas, 1933, four patents were issued to Armstrong for "
"his most significant invention&mdash;FM radio. Until then, consumer radio "
"had been amplitude-modulated (AM) radio. The theorists of the day had said "
"that frequency-modulated (FM) radio could never work. They were right about "
"FM radio in a narrow band of spectrum.  But Armstrong discovered that "
"frequency-modulated radio in a wide band of spectrum would deliver an "
"astonishing fidelity of sound, with much less transmitter power and static."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:535
msgid ""
"On November 5, 1935, he demonstrated the technology at a meeting of the "
"Institute of Radio Engineers at the Empire State Building in New York City. "
"He tuned his radio dial across a range of AM stations, until the radio "
"locked on a broadcast that he had arranged from seventeen miles away. The "
"radio fell totally silent, as if dead, and then with a clarity no one else "
"in that room had ever heard from an electrical device, it produced the sound"
" of an announcer's voice: <quote>This is amateur station W2AG at Yonkers, "
"New York, operating on frequency modulation at two and a half "
"meters.</quote>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:546
msgid "The audience was hearing something no one had thought possible:"
msgstr ""

#. type: Content of: <book><chapter><blockquote><para><footnote><para>
#: freeculture.xml:557
msgid ""
"Lawrence Lessing, <citetitle>Man of High Fidelity: Edwin Howard "
"Armstrong</citetitle> (Philadelphia: J. B. Lipincott Company, 1956), 209."
msgstr ""

#. type: Content of: <book><chapter><blockquote><para>
#: freeculture.xml:550
msgid ""
"A glass of water was poured before the microphone in Yonkers; it sounded "
"like a glass of water being poured. &hellip; A paper was crumpled and torn; "
"it sounded like paper and not like a crackling forest fire. &hellip; Sousa "
"marches were played from records and a piano solo and guitar number were "
"performed. &hellip; The music was projected with a live-ness rarely if ever "
"heard before from a radio <quote>music box.</quote><placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:562 freeculture.xml:6792
msgid "RCA"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:563 freeculture.xml:2440 freeculture.xml:2458
#: freeculture.xml:2492 freeculture.xml:2494
msgid "media"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:563 freeculture.xml:2494
msgid "ownership concentration in"
msgstr ""

#. PAGE BREAK 20
#. type: Content of: <book><chapter><para>
#: freeculture.xml:565
msgid ""
"As our own common sense tells us, Armstrong had discovered a vastly superior"
" radio technology. But at the time of his invention, Armstrong was working "
"for RCA. RCA was the dominant player in the then dominant AM radio market. "
"By 1935, there were a thousand radio stations across the United States, but "
"the stations in large cities were all owned by a handful of networks."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:573 freeculture.xml:595
msgid "Sarnoff, David"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:575
msgid ""
"RCA's president, David Sarnoff, a friend of Armstrong's, was eager that "
"Armstrong discover a way to remove static from AM radio. So Sarnoff was "
"quite excited when Armstrong told him he had a device that removed static "
"from <quote>radio.</quote> But when Armstrong demonstrated his invention, "
"Sarnoff was not pleased."
msgstr ""

#. type: Content of: <book><chapter><blockquote><para><footnote><para>
#: freeculture.xml:586
msgid ""
"See <quote>Saints: The Heroes and Geniuses of the Electronic Era,</quote> "
"First Electronic Church of America, at www.webstationone.com/fecha, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #1</ulink>."
msgstr ""

#. type: Content of: <book><chapter><blockquote><para>
#: freeculture.xml:583
msgid ""
"I thought Armstrong would invent some kind of a filter to remove static from"
" our AM radio. I didn't think he'd start a revolution&mdash; start up a "
"whole damn new industry to compete with RCA.<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:594 freeculture.xml:6788
msgid "FM radio"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:597
msgid ""
"Armstrong's invention threatened RCA's AM empire, so the company launched a "
"campaign to smother FM radio. While FM may have been a superior technology, "
"Sarnoff was a superior tactician.  As one author described,"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:602
msgid "Lessing, Lawrence"
msgstr ""

#. type: Content of: <book><chapter><blockquote><para><footnote><para>
#: freeculture.xml:610
msgid "Lessing, 226."
msgstr ""

#. type: Content of: <book><chapter><blockquote><para>
#: freeculture.xml:605
msgid ""
"The forces for FM, largely engineering, could not overcome the weight of "
"strategy devised by the sales, patent, and legal offices to subdue this "
"threat to corporate position. For FM, if allowed to develop unrestrained, "
"posed &hellip; a complete reordering of radio power &hellip; and the "
"eventual overthrow of the carefully restricted AM system on which RCA had "
"grown to power.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:614
msgid "FCC"
msgstr ""

#. type: Content of: <book><chapter><indexterm><secondary>
#: freeculture.xml:614
msgid "on FM radio"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:616
msgid ""
"RCA at first kept the technology in house, insisting that further tests were"
" needed. When, after two years of testing, Armstrong grew impatient, RCA "
"began to use its power with the government to stall FM radio's deployment "
"generally. In 1936, RCA hired the former head of the FCC and assigned him "
"the task of assuring that the FCC assign spectrum in a way that would "
"castrate FM&mdash;principally by moving FM radio to a different band of "
"spectrum. At first, these efforts failed. But when Armstrong and the nation "
"were distracted by World War II, RCA's work began to be more successful. "
"Soon after the war ended, the FCC announced a set of policies that would "
"have one clear effect: FM radio would be crippled. As Lawrence Lessing "
"described it,"
msgstr ""

#. type: Content of: <book><chapter><blockquote><para><footnote><para>
#: freeculture.xml:635
msgid "Lessing, 256."
msgstr ""

#. type: Content of: <book><chapter><blockquote><para>
#: freeculture.xml:631
msgid ""
"The series of body blows that FM radio received right after the war, in a "
"series of rulings manipulated through the FCC by the big radio interests, "
"were almost incredible in their force and deviousness.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:640
msgid "AT&amp;T"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:642
msgid ""
"To make room in the spectrum for RCA's latest gamble, television, FM radio "
"users were to be moved to a totally new spectrum band. The power of FM radio"
" stations was also cut, meaning FM could no longer be used to beam programs "
"from one part of the country to another.  (This change was strongly "
"supported by AT&amp;T, because the loss of FM relaying stations would mean "
"radio stations would have to buy wired links from AT&amp;T.) The spread of "
"FM radio was thus choked, at least temporarily."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:654
msgid ""
"Armstrong resisted RCA's efforts. In response, RCA resisted Armstrong's "
"patents. After incorporating FM technology into the emerging standard for "
"television, RCA declared the patents invalid&mdash;baselessly, and almost "
"fifteen years after they were issued. It thus refused to pay him royalties. "
"For six years, Armstrong fought an expensive war of litigation to defend the"
" patents. Finally, just as the patents expired, RCA offered a settlement so "
"low that it would not even cover Armstrong's lawyers' fees. Defeated, "
"broken, and now broke, in 1954 Armstrong wrote a short note to his wife and "
"then stepped out of a thirteenth-story window to his death."
msgstr ""

#. PAGE BREAK 22
#. type: Content of: <book><chapter><para>
#: freeculture.xml:670
msgid ""
"This is how the law sometimes works. Not often this tragically, and rarely "
"with heroic drama, but sometimes, this is how it works. From the beginning, "
"government and government agencies have been subject to capture. They are "
"more likely captured when a powerful interest is threatened by either a "
"legal or technical change. That powerful interest too often exerts its "
"influence within the government to get the government to protect it. The "
"rhetoric of this protection is of course always public spirited; the reality"
" is something different. Ideas that were as solid as rock in one age, but "
"that, left to themselves, would crumble in another, are sustained through "
"this subtle corruption of our political process. RCA had what the Causbys "
"did not: the power to stifle the effect of technological change."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:687 freeculture.xml:1060 freeculture.xml:2311
#: freeculture.xml:2323 freeculture.xml:2407 freeculture.xml:2441
#: freeculture.xml:2467 freeculture.xml:2717 freeculture.xml:4123
#: freeculture.xml:6672 freeculture.xml:7529 freeculture.xml:7602
#: freeculture.xml:10148 freeculture.xml:13421 freeculture.xml:13981
#: freeculture.xml:13982 freeculture.xml:14056
msgid "Internet"
msgstr ""

#. type: Content of: <book><chapter><section><indexterm><secondary>
#: freeculture.xml:687 freeculture.xml:4657 freeculture.xml:13421
#: freeculture.xml:13981
msgid "development of"
msgstr ""

#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:695
msgid ""
"Amanda Lenhart, <quote>The Ever-Shifting Internet Population: A New Look at "
"Internet Access and the Digital Divide,</quote> Pew Internet and American "
"Life Project, 15 April 2003: 6, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #2</ulink>."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:689
msgid ""
"<emphasis role=\"strong\">There's no</emphasis> single inventor of the "
"Internet. Nor is there any good date upon which to mark its birth. Yet in a "
"very short time, the Internet has become part of ordinary American life. "
"According to the Pew Internet and American Life Project, 58 percent of "
"Americans had access to the Internet in 2002, up from 49 percent two years "
"before.<placeholder type=\"footnote\" id=\"0\"/> That number could well "
"exceed two thirds of the nation by the end of 2004."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:704
msgid ""
"As the Internet has been integrated into ordinary life, it has changed "
"things. Some of these changes are technical&mdash;the Internet has made "
"communication faster, it has lowered the cost of gathering data, and so on. "
"These technical changes are not the focus of this book. They are important. "
"They are not well understood. But they are the sort of thing that would "
"simply go away if we all just switched the Internet off.  They don't affect "
"people who don't use the Internet, or at least they don't affect them "
"directly. They are the proper subject of a book about the Internet. But this"
" is not a book about the Internet."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:715
msgid ""
"Instead, this book is about an effect of the Internet beyond the Internet "
"itself: an effect upon how culture is made. My claim is that the Internet "
"has induced an important and unrecognized change in that process. That "
"change will radically transform a tradition that is as old as the Republic "
"itself. Most, if they recognized this change, would reject it. Yet most "
"don't even see the change that the Internet has introduced."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:724
msgid "Barlow, Joel"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:725
msgid "culture"
msgstr ""

#. type: Content of: <book><chapter><indexterm><secondary>
#: freeculture.xml:725
msgid "commercial vs. noncommercial"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:726
msgid "Webster, Noah"
msgstr ""

#.  PAGE BREAK 23
#. type: Content of: <book><chapter><para>
#: freeculture.xml:728
msgid ""
"We can glimpse a sense of this change by distinguishing between commercial "
"and noncommercial culture, and by mapping the law's regulation of each. By "
"<quote>commercial culture</quote> I mean that part of our culture that is "
"produced and sold or produced to be sold. By <quote>noncommercial "
"culture</quote> I mean all the rest. When old men sat around parks or on "
"street corners telling stories that kids and others consumed, that was "
"noncommercial culture. When Noah Webster published his "
"<quote>Reader,</quote> or Joel Barlow his poetry, that was commercial "
"culture."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:740
msgid ""
"At the beginning of our history, and for just about the whole of our "
"tradition, noncommercial culture was essentially unregulated. Of course, if "
"your stories were lewd, or if your song disturbed the peace, then the law "
"might intervene. But the law was never directly concerned with the creation "
"or spread of this form of culture, and it left this culture "
"<quote>free.</quote> The ordinary ways in which ordinary individuals shared "
"and transformed their culture&mdash;telling stories, reenacting scenes from "
"plays or TV, participating in fan clubs, sharing music, making "
"tapes&mdash;were left alone by the law."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:750 freeculture.xml:2813 freeculture.xml:2814
#: freeculture.xml:2841 freeculture.xml:2842 freeculture.xml:2843
#: freeculture.xml:7761 freeculture.xml:9606 freeculture.xml:9607
#: freeculture.xml:9882 freeculture.xml:9883 freeculture.xml:9884
#: freeculture.xml:9927
msgid "copyright infringement lawsuits"
msgstr ""

#. type: Content of: <book><chapter><indexterm><secondary>
#: freeculture.xml:750
msgid "commercial creativity as primary purpose of"
msgstr ""

#. type: Content of:
#. <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:766 freeculture.xml:1902 freeculture.xml:1915
msgid "Brandeis, Louis D."
msgstr ""

#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:758
msgid ""
"This is not the only purpose of copyright, though it is the overwhelmingly "
"primary purpose of the copyright established in the federal constitution.  "
"State copyright law historically protected not just the commercial interest "
"in publication, but also a privacy interest. By granting authors the "
"exclusive right to first publication, state copyright law gave authors the "
"power to control the spread of facts about them. See Samuel D. Warren and "
"Louis D. Brandeis, <quote>The Right to Privacy,</quote> Harvard Law Review 4"
" (1890): 193, 198&ndash;200.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:752
msgid ""
"The focus of the law was on commercial creativity. At first slightly, then "
"quite extensively, the law protected the incentives of creators by granting "
"them exclusive rights to their creative work, so that they could sell those "
"exclusive rights in a commercial marketplace.<placeholder type=\"footnote\" "
"id=\"0\"/> This is also, of course, an important part of creativity and "
"culture, and it has become an increasingly important part in America. But in"
" no sense was it dominant within our tradition. It was instead just one "
"part, a controlled part, balanced with the free."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:773 freeculture.xml:1661 freeculture.xml:5215
#: freeculture.xml:6443 freeculture.xml:14021
msgid "free culture"
msgstr ""

#. type: Content of: <book><chapter><indexterm><secondary>
#: freeculture.xml:773
msgid "permission culture vs."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:774
msgid "permission culture"
msgstr ""

#. type: Content of: <book><chapter><indexterm><secondary>
#: freeculture.xml:774
msgid "free culture vs."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:780 freeculture.xml:10132
msgid "Litman, Jessica"
msgstr ""

#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:778
msgid ""
"See Jessica Litman, <citetitle>Digital Copyright</citetitle> (New York: "
"Prometheus Books, 2001), ch. 13.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:776
msgid ""
"This rough divide between the free and the controlled has now been "
"erased.<placeholder type=\"footnote\" id=\"0\"/> The Internet has set the "
"stage for this erasure and, pushed by big media, the law has now affected "
"it. For the first time in our tradition, the ordinary ways in which "
"individuals create and share culture fall within the reach of the regulation"
" of the law, which has expanded to draw within its control a vast amount of "
"culture and creativity that it never reached before. The technology that "
"preserved the balance of our history&mdash;between uses of our culture that "
"were free and uses of our culture that were only upon permission&mdash;has "
"been undone.  The consequence is that we are less and less a free culture, "
"more and more a permission culture."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:796
msgid "protection of artists vs. business interests"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:798
msgid ""
"This change gets justified as necessary to protect commercial creativity.  "
"And indeed, protectionism is precisely its motivation. But the protectionism"
" that justifies the changes that I will describe below is not the limited "
"and balanced sort that has defined the law in the past. This is not a "
"protectionism to protect artists. It is instead a protectionism to protect "
"certain forms of business. Corporations threatened by the potential of the "
"Internet to change the way both commercial and noncommercial culture are "
"made and shared have united to induce lawmakers to use the law to protect "
"them. It is the story of RCA and Armstrong; it is the dream of the Causbys."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:812
msgid ""
"For the Internet has unleashed an extraordinary possibility for many to "
"participate in the process of building and cultivating a culture that "
"reaches far beyond local boundaries. That power has changed the marketplace "
"for making and cultivating culture generally, and that change in turn "
"threatens established content industries. The Internet is thus to the "
"industries that built and distributed content in the twentieth century what "
"FM radio was to AM radio, or what the truck was to the railroad industry of "
"the nineteenth century: the beginning of the end, or at least a substantial "
"transformation. Digital technologies, tied to the Internet, could produce a "
"vastly more competitive and vibrant market for building and cultivating "
"culture; that market could include a much wider and more diverse range of "
"creators; those creators could produce and distribute a much more vibrant "
"range of creativity; and depending upon a few important factors, those "
"creators could earn more on average from this system than creators do "
"today&mdash;all so long as the RCAs of our day don't use the law to protect "
"themselves against this competition."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:831
msgid ""
"Yet, as I argue in the pages that follow, that is precisely what is "
"happening in our culture today. These modern-day equivalents of the early "
"twentieth-century radio or nineteenth-century railroads are using their "
"power to get the law to protect them against this new, more efficient, more "
"vibrant technology for building culture. They are succeeding in their plan "
"to remake the Internet before the Internet remakes them."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:840 freeculture.xml:7484
msgid "Valenti, Jack"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:840 freeculture.xml:7484
msgid "on creative property rights"
msgstr ""

#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:850
msgid ""
"Amy Harmon, <quote>Black Hawk Download: Moving Beyond Music, Pirates Use New"
" Tools to Turn the Net into an Illicit Video Club,</quote> <citetitle>New "
"York Times</citetitle>, 17 January 2002."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:842
msgid ""
"It doesn't seem this way to many. The battles over copyright and the "
"Internet seem remote to most. To the few who follow them, they seem mainly "
"about a much simpler brace of questions&mdash;whether <quote>piracy</quote> "
"will be permitted, and whether <quote>property</quote> will be protected. "
"The <quote>war</quote> that has been waged against the technologies of the "
"Internet&mdash;what Motion Picture Association of America (MPAA) president "
"Jack Valenti calls his <quote>own terrorist war</quote><placeholder "
"type=\"footnote\" id=\"0\"/>&mdash;has been framed as a battle about the "
"rule of law and respect for property. To know which side to take in this "
"war, most think that we need only decide whether we're for property or "
"against it."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:859
msgid ""
"If those really were the choices, then I would be with Jack Valenti and the "
"content industry. I, too, am a believer in property, and especially in the "
"importance of what Mr. Valenti nicely calls <quote>creative "
"property.</quote> I believe that <quote>piracy</quote> is wrong, and that "
"the law, properly tuned, should punish <quote>piracy,</quote> whether on or "
"off the Internet."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:867
msgid ""
"But those simple beliefs mask a much more fundamental question and a much "
"more dramatic change. My fear is that unless we come to see this change, the"
" war to rid the world of Internet <quote>pirates</quote> will also rid our "
"culture of values that have been integral to our tradition from the start."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:872 freeculture.xml:6824 freeculture.xml:6937
#: freeculture.xml:6938 freeculture.xml:6939 freeculture.xml:6984
#: freeculture.xml:7572 freeculture.xml:8850 freeculture.xml:11135
#: freeculture.xml:11426 freeculture.xml:12072
msgid "Constitution, U.S."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:872 freeculture.xml:6824 freeculture.xml:7572
#: freeculture.xml:8850
msgid "First Amendment to"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:873 freeculture.xml:1038 freeculture.xml:1145
#: freeculture.xml:1170 freeculture.xml:1514 freeculture.xml:1558
#: freeculture.xml:1672 freeculture.xml:3074 freeculture.xml:3165
#: freeculture.xml:4245 freeculture.xml:4246 freeculture.xml:4657
#: freeculture.xml:4658 freeculture.xml:5259 freeculture.xml:6445
#: freeculture.xml:6891 freeculture.xml:6971 freeculture.xml:6972
#: freeculture.xml:7156 freeculture.xml:7255 freeculture.xml:7287
#: freeculture.xml:7317 freeculture.xml:7352 freeculture.xml:7466
#: freeculture.xml:7467 freeculture.xml:7528 freeculture.xml:7562
#: freeculture.xml:7667 freeculture.xml:7681 freeculture.xml:7740
#: freeculture.xml:7741 freeculture.xml:7839 freeculture.xml:9768
#: freeculture.xml:10121 freeculture.xml:11075 freeculture.xml:11120
msgid "copyright law"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:873 freeculture.xml:6971
msgid "as protection of creators"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:874 freeculture.xml:6825 freeculture.xml:7573
#: freeculture.xml:8851
msgid "First Amendment"
msgstr ""

#. type: Content of:
#. <book><chapter><section><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:875 freeculture.xml:885 freeculture.xml:15209
msgid "Netanel, Neil Weinstock"
msgstr ""

#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:883
msgid ""
"Neil W. Netanel, <quote>Copyright and a Democratic Civil Society,</quote> "
"<citetitle>Yale Law Journal</citetitle> 106 (1996): 283.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:877
msgid ""
"These values built a tradition that, for at least the first 180 years of our"
" Republic, guaranteed creators the right to build freely upon their past, "
"and protected creators and innovators from either state or private control. "
"The First Amendment protected creators against state control.  And as "
"Professor Neil Netanel powerfully argues,<placeholder type=\"footnote\" "
"id=\"0\"/> copyright law, properly balanced, protected creators against "
"private control. Our tradition was thus neither Soviet nor the tradition of "
"patrons. It instead carved out a wide berth within which creators could "
"cultivate and extend our culture."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:893
msgid ""
"Yet the law's response to the Internet, when tied to changes in the "
"technology of the Internet itself, has massively increased the effective "
"regulation of creativity in America. To build upon or critique the culture "
"around us one must ask, Oliver Twist&ndash;like, for permission first.  "
"Permission is, of course, often granted&mdash;but it is not often granted to"
" the critical or the independent. We have built a kind of cultural nobility;"
" those within the noble class live easily; those outside it don't. But it is"
" nobility of any form that is alien to our tradition."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:905
msgid ""
"The story that follows is about this war. It is not about the "
"<quote>centrality of technology</quote> to ordinary life. I don't believe in"
" gods, digital or otherwise. Nor is it an effort to demonize any individual "
"or group, for neither do I believe in a devil, corporate or otherwise. It is"
" not a morality tale. Nor is it a call to jihad against an industry."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:913
msgid ""
"It is instead an effort to understand a hopelessly destructive war inspired "
"by the technologies of the Internet but reaching far beyond its code. And by"
" understanding this battle, it is an effort to map peace.  There is no good "
"reason for the current struggle around Internet technologies to continue. "
"There will be great harm to our tradition and culture if it is allowed to "
"continue unchecked. We must come to understand the source of this war. We "
"must resolve it soon."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:923 freeculture.xml:13337 freeculture.xml:13420
#: freeculture.xml:13590
msgid "intellectual property rights"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:925
msgid ""
"<emphasis role=\"strong\">Like the Causbys'</emphasis> battle, this war is, "
"in part, about <quote>property.</quote> The property of this war is not as "
"tangible as the Causbys', and no innocent chicken has yet to lose its life. "
"Yet the ideas surrounding this <quote>property</quote> are as obvious to "
"most as the Causbys' claim about the sacredness of their farm was to them. "
"We are the Causbys. Most of us take for granted the extraordinarily powerful"
" claims that the owners of <quote>intellectual property</quote> now assert. "
"Most of us, like the Causbys, treat these claims as obvious. And hence we, "
"like the Causbys, object when a new technology interferes with this "
"property. It is as plain to us as it was to them that the new technologies "
"of the Internet are <quote>trespassing</quote> upon legitimate claims of "
"<quote>property.</quote> It is as plain to us as it was to them that the law"
" should intervene to stop this trespass."
msgstr ""

#. PAGE BREAK 27
#. type: Content of: <book><chapter><para>
#: freeculture.xml:943
msgid ""
"And thus, when geeks and technologists defend their Armstrong or Wright "
"brothers technology, most of us are simply unsympathetic.  Common sense does"
" not revolt. Unlike in the case of the unlucky Causbys, common sense is on "
"the side of the property owners in this war. Unlike the lucky Wright "
"brothers, the Internet has not inspired a revolution on its side."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:954
msgid ""
"My hope is to push this common sense along. I have become increasingly "
"amazed by the power of this idea of intellectual property and, more "
"importantly, its power to disable critical thought by policy makers and "
"citizens. There has never been a time in our history when more of our "
"<quote>culture</quote> was as <quote>owned</quote> as it is now. And yet "
"there has never been a time when the concentration of power to control the "
"<emphasis>uses</emphasis> of culture has been as unquestioningly accepted as"
" it is now."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:964
msgid ""
"The puzzle is, Why? Is it because we have come to understand a truth about "
"the value and importance of absolute property over ideas and culture? Is it "
"because we have discovered that our tradition of rejecting such an absolute "
"claim was wrong?"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:970
msgid ""
"Or is it because the idea of absolute property over ideas and culture "
"benefits the RCAs of our time and fits our own unreflective intuitions?"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:974
msgid ""
"Is the radical shift away from our tradition of free culture an instance of "
"America correcting a mistake from its past, as we did after a bloody war "
"with slavery, and as we are slowly doing with inequality? Or is the radical "
"shift away from our tradition of free culture yet another example of a "
"political system captured by a few powerful special interests?"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:981
msgid ""
"Does common sense lead to the extremes on this question because common sense"
" actually believes in these extremes? Or does common sense stand silent in "
"the face of these extremes because, as with Armstrong versus RCA, the more "
"powerful side has ensured that it has the more powerful view?"
msgstr ""

#.  PAGE BREAK 28
#. type: Content of: <book><chapter><para>
#: freeculture.xml:990
msgid ""
"I don't mean to be mysterious. My own views are resolved. I believe it was "
"right for common sense to revolt against the extremism of the Causbys. I "
"believe it would be right for common sense to revolt against the extreme "
"claims made today on behalf of <quote>intellectual property.</quote> What "
"the law demands today is increasingly as silly as a sheriff arresting an "
"airplane for trespass. But the consequences of this silliness will be much "
"more profound."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:1001
msgid ""
"<emphasis role=\"strong\">The struggle</emphasis> that rages just now "
"centers on two ideas: <quote>piracy</quote> and <quote>property.</quote> My "
"aim in this book's next two parts is to explore these two ideas."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:1006
msgid ""
"My method is not the usual method of an academic. I don't want to plunge you"
" into a complex argument, buttressed with references to obscure French "
"theorists&mdash;however natural that is for the weird sort we academics have"
" become. Instead I begin in each part with a collection of stories that set "
"a context within which these apparently simple ideas can be more fully "
"understood."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:1014
msgid ""
"The two sections set up the core claim of this book: that while the Internet"
" has indeed produced something fantastic and new, our government, pushed by "
"big media to respond to this <quote>something new,</quote> is destroying "
"something very old. Rather than understanding the changes the Internet might"
" permit, and rather than taking time to let <quote>common sense</quote> "
"resolve how best to respond, we are allowing those most threatened by the "
"changes to use their power to change the law&mdash;and more importantly, to "
"use their power to change something fundamental about who we have always "
"been."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:1025
msgid ""
"We allow this, I believe, not because it is right, and not because most of "
"us really believe in these changes. We allow it because the interests most "
"threatened are among the most powerful players in our depressingly "
"compromised process of making law. This book is the story of one more "
"consequence of this form of corruption&mdash;a consequence to which most of "
"us remain oblivious."
msgstr ""

#. type: Content of: <book><part><title>
#: freeculture.xml:1035
msgid "<quote>PIRACY</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:1038 freeculture.xml:4658
msgid "English"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1039 freeculture.xml:5068
msgid "Mansfield, William Murray, Lord"
msgstr ""

#. type: Content of: <book><part><partintro><indexterm><primary>
#: freeculture.xml:1040
msgid "music publishing"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:1041 freeculture.xml:3162
msgid "sheet music"
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1043
msgid ""
"<emphasis role=\"strong\">Since the inception</emphasis> of the law "
"regulating creative property, there has been a war against "
"<quote>piracy.</quote> The precise contours of this concept, "
"<quote>piracy,</quote> are hard to sketch, but the animating injustice is "
"easy to capture.  As Lord Mansfield wrote in a case that extended the reach "
"of English copyright law to include sheet music,"
msgstr ""

#.  f1
#. type: Content of: <book><part><partintro><blockquote><para><footnote><para>
#: freeculture.xml:1055
msgid ""
"<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 Eng. Rep. "
"1274 (1777) (Mansfield)."
msgstr ""

#. type: Content of: <book><part><partintro><blockquote><para>
#: freeculture.xml:1051
msgid ""
"A person may use the copy by playing it, but he has no right to rob the "
"author of the profit, by multiplying copies and disposing of them for his "
"own use.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><partintro><indexterm><secondary>
#: freeculture.xml:1060
msgid "efficient content distribution on"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1061 freeculture.xml:6673 freeculture.xml:11123
msgid "peer-to-peer (p2p) file sharing"
msgstr ""

#. type: Content of: <book><part><partintro><indexterm><secondary>
#: freeculture.xml:1061
msgid "efficiency of"
msgstr ""

#.  PAGE BREAK 31
#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1063
msgid ""
"Today we are in the middle of another <quote>war</quote> against "
"<quote>piracy.</quote> The Internet has provoked this war. The Internet "
"makes possible the efficient spread of content. Peer-to-peer (p2p) file "
"sharing is among the most efficient of the efficient technologies the "
"Internet enables. Using distributed intelligence, p2p systems facilitate the"
" easy spread of content in a way unimagined a generation ago."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1072
msgid ""
"This efficiency does not respect the traditional lines of copyright.  The "
"network doesn't discriminate between the sharing of copyrighted and "
"uncopyrighted content. Thus has there been a vast amount of sharing of "
"copyrighted content. That sharing in turn has excited the war, as copyright "
"owners fear the sharing will <quote>rob the author of the profit.</quote>"
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1081
msgid ""
"The warriors have turned to the courts, to the legislatures, and "
"increasingly to technology to defend their <quote>property</quote> against "
"this <quote>piracy.</quote> A generation of Americans, the warriors warn, is"
" being raised to believe that <quote>property</quote> should be "
"<quote>free.</quote> Forget tattoos, never mind body piercing&mdash;our kids"
" are becoming <emphasis>thieves</emphasis>!"
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1089
msgid ""
"There's no doubt that <quote>piracy</quote> is wrong, and that pirates "
"should be punished. But before we summon the executioners, we should put "
"this notion of <quote>piracy</quote> in some context. For as the concept is "
"increasingly used, at its core is an extraordinary idea that is almost "
"certainly wrong."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1095
msgid "The idea goes something like this:"
msgstr ""

#. type: Content of: <book><part><partintro><blockquote><para>
#: freeculture.xml:1099
msgid ""
"Creative work has value; whenever I use, or take, or build upon the creative"
" work of others, I am taking from them something of value. Whenever I take "
"something of value from someone else, I should have their permission. The "
"taking of something of value from someone else without permission is wrong. "
"It is a form of piracy."
msgstr ""

#. type: Content of: <book><part><partintro><indexterm><primary>
#: freeculture.xml:1107
msgid "ASCAP"
msgstr ""

#. type: Content of: <book><part><partintro><indexterm><primary>
#: freeculture.xml:1108
msgid "Dreyfuss, Rochelle"
msgstr ""

#. type: Content of: <book><part><partintro><indexterm><primary>
#: freeculture.xml:1109
msgid "Girl Scouts"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:1110 freeculture.xml:6942 freeculture.xml:7042
#: freeculture.xml:7485
msgid "creative property"
msgstr ""

#. type: Content of: <book><part><partintro><indexterm><secondary>
#: freeculture.xml:1110
msgid "<quote>if value, then right</quote> theory of"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1111 freeculture.xml:2970
msgid "<quote>if value, then right</quote> theory"
msgstr ""

#.  f2
#. type: Content of: <book><part><partintro><para><footnote><para>
#: freeculture.xml:1117
msgid ""
"See Rochelle Dreyfuss, <quote>Expressive Genericity: Trademarks as Language "
"in the Pepsi Generation,</quote> <citetitle>Notre Dame Law "
"Review</citetitle> 65 (1990): 397."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:1130 freeculture.xml:7421
msgid "Zittrain, Jonathan"
msgstr ""

#. type: Content of: <book><part><partintro><para><footnote><para>
#: freeculture.xml:1125
msgid ""
"Lisa Bannon, <quote>The Birds May Sing, but Campers Can't Unless They Pay "
"Up,</quote> <citetitle>Wall Street Journal</citetitle>, 21 August 1996, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #3</ulink>; "
"Jonathan Zittrain, <quote>Calling Off the Copyright War: In Battle of "
"Property vs. Free Speech, No One Wins,</quote> <citetitle>Boston "
"Globe</citetitle>, 24 November 2002.  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1113
msgid ""
"This view runs deep within the current debates. It is what NYU law professor"
" Rochelle Dreyfuss criticizes as the <quote>if value, then right</quote> "
"theory of creative property<placeholder type=\"footnote\" id=\"0\"/> "
"&mdash;if there is value, then someone must have a right to that value. It "
"is the perspective that led a composers' rights organization, ASCAP, to sue "
"the Girl Scouts for failing to pay for the songs that girls sang around Girl"
" Scout campfires.<placeholder type=\"footnote\" id=\"1\"/> There was "
"<quote>value</quote> (the songs) so there must have been a "
"<quote>right</quote>&mdash;even against the Girl Scouts."
msgstr ""

#.  PAGE BREAK 32
#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1137
msgid ""
"This idea is certainly a possible understanding of how creative property "
"should work. It might well be a possible design for a system of law "
"protecting creative property. But the <quote>if value, then right</quote> "
"theory of creative property has never been America's theory of creative "
"property.  It has never taken hold within our law."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:1145 freeculture.xml:7255 freeculture.xml:7352
#: freeculture.xml:7667
msgid "on republishing vs. transformation of original work"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1146 freeculture.xml:1328 freeculture.xml:1485
msgid "creativity"
msgstr ""

#. type: Content of: <book><part><partintro><indexterm><secondary>
#: freeculture.xml:1146
msgid "legal restrictions on"
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1148
msgid ""
"Instead, in our tradition, intellectual property is an instrument. It sets "
"the groundwork for a richly creative society but remains subservient to the "
"value of creativity. The current debate has this turned around. We have "
"become so concerned with protecting the instrument that we are losing sight "
"of the value."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1155
msgid ""
"The source of this confusion is a distinction that the law no longer takes "
"care to draw&mdash;the distinction between republishing someone's work on "
"the one hand and building upon or transforming that work on the other. "
"Copyright law at its birth had only publishing as its concern; copyright law"
" today regulates both."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1163
msgid ""
"Before the technologies of the Internet, this conflation didn't matter all "
"that much. The technologies of publishing were expensive; that meant the "
"vast majority of publishing was commercial. Commercial entities could bear "
"the burden of the law&mdash;even the burden of the Byzantine complexity that"
" copyright law has become. It was just one more expense of doing business."
msgstr ""

#. type: Content of: <book><part><partintro><indexterm><secondary>
#: freeculture.xml:1170
msgid "creativity impeded by"
msgstr ""

#. type: Content of:
#. <book><part><partintro><para><footnote><para><indexterm><primary>
#: freeculture.xml:1171 freeculture.xml:1202
msgid "Florida, Richard"
msgstr ""

#. type: Content of:
#. <book><part><partintro><para><footnote><para><indexterm><primary>
#: freeculture.xml:1172 freeculture.xml:1203
msgid "Rise of the Creative Class, The (Florida)"
msgstr ""

#. type: Content of: <book><part><partintro><para><footnote><para>
#: freeculture.xml:1194
msgid ""
"In <citetitle>The Rise of the Creative Class</citetitle> (New York: Basic "
"Books, 2002), Richard Florida documents a shift in the nature of labor "
"toward a labor of creativity.  His work, however, doesn't directly address "
"the legal conditions under which that creativity is enabled or stifled. I "
"certainly agree with him about the importance and significance of this "
"change, but I also believe the conditions under which it will be enabled are"
" much more tenuous.  <placeholder type=\"indexterm\" id=\"0\"/> <placeholder"
" type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1174
msgid ""
"But with the birth of the Internet, this natural limit to the reach of the "
"law has disappeared. The law controls not just the creativity of commercial "
"creators but effectively that of anyone. Although that expansion would not "
"matter much if copyright law regulated only <quote>copying,</quote> when the"
" law regulates as broadly and obscurely as it does, the extension matters a "
"lot. The burden of this law now vastly outweighs any original "
"benefit&mdash;certainly as it affects noncommercial creativity, and "
"increasingly as it affects commercial creativity as well. Thus, as we'll see"
" more clearly in the chapters below, the law's role is less and less to "
"support creativity, and more and more to protect certain industries against "
"competition. Just at the time digital technology could unleash an "
"extraordinary range of commercial and noncommercial creativity, the law "
"burdens this creativity with insanely complex and vague rules and with the "
"threat of obscenely severe penalties. We may be seeing, as Richard Florida "
"writes, the <quote>Rise of the Creative Class.</quote><placeholder "
"type=\"footnote\" id=\"0\"/> Unfortunately, we are also seeing an "
"extraordinary rise of regulation of this creative class."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:1210
msgid ""
"These burdens make no sense in our tradition. We should begin by "
"understanding that tradition a bit more and by placing in their proper "
"context the current battles about behavior labeled <quote>piracy.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:1218
msgid "CHAPTER ONE: Creators"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1219
msgid "animated cartoons"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1220
msgid "cartoon films"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1221 freeculture.xml:5263 freeculture.xml:5297
#: freeculture.xml:6012 freeculture.xml:6056
msgid "films"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:1221
msgid "animated"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1222
msgid "Steamboat Willie"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:1223 freeculture.xml:7446
msgid "Mickey Mouse"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1225
msgid ""
"<emphasis role=\"strong\">In 1928</emphasis>, a cartoon character was born. "
"An early Mickey Mouse made his debut in May of that year, in a silent flop "
"called <citetitle>Plane Crazy</citetitle>.  In November, in New York City's "
"Colony Theater, in the first widely distributed cartoon synchronized with "
"sound, <citetitle>Steamboat Willie</citetitle> brought to life the character"
" that would become Mickey Mouse."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1231 freeculture.xml:1448 freeculture.xml:1502
#: freeculture.xml:1643 freeculture.xml:1889 freeculture.xml:4493
#: freeculture.xml:6188 freeculture.xml:7445 freeculture.xml:11016
#: freeculture.xml:11429
msgid "Disney, Walt"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1233
msgid ""
"Synchronized sound had been introduced to film a year earlier in the movie "
"<citetitle>The Jazz Singer</citetitle>. That success led Walt Disney to copy"
" the technique and mix sound with cartoons. No one knew whether it would "
"work or, if it did work, whether it would win an audience. But when Disney "
"ran a test in the summer of 1928, the results were unambiguous.  As Disney "
"describes that first experiment,"
msgstr ""

#.  PAGE BREAK 35
#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:1242
msgid ""
"A couple of my boys could read music, and one of them could play a mouth "
"organ. We put them in a room where they could not see the screen and "
"arranged to pipe their sound into the room where our wives and friends were "
"going to see the picture."
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:1249
msgid ""
"The boys worked from a music and sound-effects score. After several false "
"starts, sound and action got off with the gun. The mouth organist played the"
" tune, the rest of us in the sound department bammed tin pans and blew slide"
" whistles on the beat.  The synchronization was pretty close."
msgstr ""

#.  f1
#. type: Content of: <book><part><chapter><blockquote><para><footnote><para>
#: freeculture.xml:1262
msgid ""
"Leonard Maltin, <citetitle>Of Mice and Magic: A History of American Animated"
" Cartoons</citetitle> (New York: Penguin Books, 1987), 34&ndash;35."
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:1256
msgid ""
"The effect on our little audience was nothing less than electric.  They "
"responded almost instinctively to this union of sound and motion. I thought "
"they were kidding me. So they put me in the audience and ran the action "
"again. It was terrible, but it was wonderful! And it was something "
"new!<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1267
msgid "Iwerks, Ub"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1269
msgid ""
"Disney's then partner, and one of animation's most extraordinary talents, Ub"
" Iwerks, put it more strongly: <quote>I have never been so thrilled in my "
"life. Nothing since has ever equaled it.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1274
msgid ""
"Disney had created something very new, based upon something relatively new. "
"Synchronized sound brought life to a form of creativity that had "
"rarely&mdash;except in Disney's hands&mdash;been anything more than filler "
"for other films. Throughout animation's early history, it was Disney's "
"invention that set the standard that others struggled to match.  And quite "
"often, Disney's great genius, his spark of creativity, was built upon the "
"work of others."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1283 freeculture.xml:1645
msgid "Keaton, Buster"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1284 freeculture.xml:1515 freeculture.xml:1903
msgid "Steamboat Bill, Jr."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1286
msgid ""
"This much is familiar. What you might not know is that 1928 also marks "
"another important transition. In that year, a comic (as opposed to cartoon) "
"genius created his last independently produced silent film.  That genius was"
" Buster Keaton. The film was <citetitle>Steamboat Bill, Jr</citetitle>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1292
msgid ""
"Keaton was born into a vaudeville family in 1895. In the era of silent film,"
" he had mastered using broad physical comedy as a way to spark "
"uncontrollable laughter from his audience. <citetitle>Steamboat Bill, "
"Jr</citetitle>. was a classic of this form, famous among film buffs for its "
"incredible stunts.  The film was classic Keaton&mdash;wildly popular and "
"among the best of its genre."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:1299 freeculture.xml:1456 freeculture.xml:7256
#: freeculture.xml:7353 freeculture.xml:7531 freeculture.xml:7640
#: freeculture.xml:7682
msgid "derivative works"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:1299 freeculture.xml:1456 freeculture.xml:7353
#: freeculture.xml:7531
msgid "piracy vs."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:1300 freeculture.xml:1459 freeculture.xml:2969
#: freeculture.xml:3668 freeculture.xml:7354 freeculture.xml:7532
#: freeculture.xml:15275
msgid "piracy"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:1300 freeculture.xml:1459 freeculture.xml:7354
#: freeculture.xml:7532
msgid "derivative work vs."
msgstr ""

#.  f2
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1308
msgid ""
"I am grateful to David Gerstein and his careful history, described at <ulink"
" url=\"http://free-culture.cc/notes/\">link #4</ulink>.  According to Dave "
"Smith of the Disney Archives, Disney paid royalties to use the music for "
"five songs in <citetitle>Steamboat Willie</citetitle>: <quote>Steamboat "
"Bill,</quote> <quote>The Simpleton</quote> (Delille), <quote>Mischief "
"Makers</quote> (Carbonara), <quote>Joyful Hurry No. 1</quote> (Baron), and "
"<quote>Gawky Rube</quote> (Lakay). A sixth song, <quote>The Turkey in the "
"Straw,</quote> was already in the public domain. Letter from David Smith to "
"Harry Surden, 10 July 2003, on file with author."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1302
msgid ""
"<citetitle>Steamboat Bill, Jr</citetitle>. appeared before Disney's cartoon "
"Steamboat Willie.  The coincidence of titles is not coincidental. Steamboat "
"Willie is a direct cartoon parody of Steamboat Bill,<placeholder "
"type=\"footnote\" id=\"0\"/> and both are built upon a common song as a "
"source. It is not just from the invention of synchronized sound in "
"<citetitle>The Jazz Singer</citetitle> that we get <citetitle>Steamboat "
"Willie</citetitle>. It is also from Buster Keaton's invention of Steamboat "
"Bill, Jr., itself inspired by the song <quote>Steamboat Bill,</quote> that "
"we get Steamboat Willie, and then from Steamboat Willie, Mickey Mouse."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:1328 freeculture.xml:1485
msgid "by transforming previous works"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:1329 freeculture.xml:6229 freeculture.xml:7739
msgid "Disney, Inc."
msgstr ""

#.  f3
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1335
msgid ""
"He was also a fan of the public domain. See Chris Sprigman, <quote>The Mouse"
" that Ate the Public Domain,</quote> Findlaw, 5 March 2002, at <ulink "
"url=\"http://free-culture.cc/notes/\">link #5</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1331
msgid ""
"This <quote>borrowing</quote> was nothing unique, either for Disney or for "
"the industry. Disney was always parroting the feature-length mainstream "
"films of his day.<placeholder type=\"footnote\" id=\"0\"/> So did many "
"others. Early cartoons are filled with knockoffs&mdash;slight variations on "
"winning themes; retellings of ancient stories. The key to success was the "
"brilliance of the differences. With Disney, it was sound that gave his "
"animation its spark. Later, it was the quality of his work relative to the "
"production-line cartoons with which he competed. Yet these additions were "
"built upon a base that was borrowed.  Disney added to the work of others "
"before him, creating something new out of something just barely old."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1349 freeculture.xml:1644 freeculture.xml:11017
msgid "Grimm fairy tales"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1351
msgid ""
"Sometimes this borrowing was slight. Sometimes it was significant.  Think "
"about the fairy tales of the Brothers Grimm. If you're as oblivious as I "
"was, you're likely to think that these tales are happy, sweet stories, "
"appropriate for any child at bedtime. In fact, the Grimm fairy tales are, "
"well, for us, grim. It is a rare and perhaps overly ambitious parent who "
"would dare to read these bloody, moralistic stories to his or her child, at "
"bedtime or anytime."
msgstr ""

#.  PAGE BREAK 37
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1360
msgid ""
"Disney took these stories and retold them in a way that carried them into a "
"new age. He animated the stories, with both characters and light. Without "
"removing the elements of fear and danger altogether, he made funny what was "
"dark and injected a genuine emotion of compassion where before there was "
"fear. And not just with the work of the Brothers Grimm. Indeed, the catalog "
"of Disney work drawing upon the work of others is astonishing when set "
"together: <citetitle>Snow White</citetitle> (1937), "
"<citetitle>Fantasia</citetitle> (1940), <citetitle>Pinocchio</citetitle> "
"(1940), <citetitle>Dumbo</citetitle> (1941), <citetitle>Bambi</citetitle> "
"(1942), <citetitle>Song of the South</citetitle> (1946), "
"<citetitle>Cinderella</citetitle> (1950), <citetitle>Alice in "
"Wonderland</citetitle> (1951), <citetitle>Robin Hood</citetitle> (1952), "
"<citetitle>Peter Pan</citetitle> (1953), <citetitle>Lady and the "
"Tramp</citetitle> (1955), <citetitle>Mulan</citetitle> (1998), "
"<citetitle>Sleeping Beauty</citetitle> (1959), <citetitle>101 "
"Dalmatians</citetitle> (1961), <citetitle>The Sword in the Stone</citetitle>"
" (1963), and <citetitle>The Jungle Book</citetitle> (1967)&mdash;not to "
"mention a recent example that we should perhaps quickly forget, "
"<citetitle>Treasure Planet</citetitle> (2003). In all of these cases, Disney"
" (or Disney, Inc.) ripped creativity from the culture around him, mixed that"
" creativity with his own extraordinary talent, and then burned that mix into"
" the soul of his culture. Rip, mix, and burn."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1383
msgid ""
"This is a kind of creativity. It is a creativity that we should remember and"
" celebrate. There are some who would say that there is no creativity except "
"this kind. We don't need to go that far to recognize its importance. We "
"could call this <quote>Disney creativity,</quote> though that would be a bit"
" misleading. It is, more precisely, <quote>Walt Disney "
"creativity</quote>&mdash;a form of expression and genius that builds upon "
"the culture around us and makes it something different."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1394 freeculture.xml:4710 freeculture.xml:4711
#: freeculture.xml:4777 freeculture.xml:4815 freeculture.xml:4871
#: freeculture.xml:4917 freeculture.xml:5052 freeculture.xml:5146
#: freeculture.xml:6640 freeculture.xml:6940 freeculture.xml:6941
#: freeculture.xml:6944 freeculture.xml:7013 freeculture.xml:7039
#: freeculture.xml:7078 freeculture.xml:7201 freeculture.xml:7248
#: freeculture.xml:7285 freeculture.xml:7593 freeculture.xml:7760
#: freeculture.xml:11074 freeculture.xml:11098 freeculture.xml:11427
#: freeculture.xml:11428
msgid "copyright"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:1394 freeculture.xml:4710 freeculture.xml:4871
#: freeculture.xml:6941 freeculture.xml:6944 freeculture.xml:7039
#: freeculture.xml:11074 freeculture.xml:11428
msgid "duration of"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:1395 freeculture.xml:1396 freeculture.xml:5147
#: freeculture.xml:7043 freeculture.xml:7166 freeculture.xml:8051
#: freeculture.xml:11008 freeculture.xml:13425 freeculture.xml:14215
#: freeculture.xml:14216
msgid "public domain"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:1395
msgid "defined"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:1396
msgid "traditional term for conversion to"
msgstr ""

#.  f4
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1403
msgid ""
"Until 1976, copyright law granted an author the possibility of two terms: an"
" initial term and a renewal term. I have calculated the "
"<quote>average</quote> term by determining the weighted average of total "
"registrations for any particular year, and the proportion renewing. Thus, if"
" 100 copyrights are registered in year 1, and only 15 are renewed, and the "
"renewal term is 28 years, then the average term is 32.2 years. For the "
"renewal data and other relevant data, see the Web site associated with this "
"book, available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#6</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1397
msgid ""
"In 1928, the culture that Disney was free to draw upon was relatively fresh."
" The public domain in 1928 was not very old and was therefore quite vibrant."
" The average term of copyright was just around thirty years&mdash;for that "
"minority of creative work that was in fact copyrighted.<placeholder "
"type=\"footnote\" id=\"0\"/> That means that for thirty years, on average, "
"the authors or copyright holders of a creative work had an <quote>exclusive "
"right</quote> to control certain uses of the work. To use this copyrighted "
"work in limited ways required the permission of the copyright owner."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1420
msgid ""
"At the end of a copyright term, a work passes into the public domain.  No "
"permission is then needed to draw upon or use that work. No permission and, "
"hence, no lawyers. The public domain is a <quote>lawyer-free zone.</quote> "
"Thus, most of the content from the nineteenth century was free for Disney to"
" use and build upon in 1928. It was free for anyone&mdash; whether connected"
" or not, whether rich or not, whether approved or not&mdash;to use and build"
" upon."
msgstr ""

#.  PAGE BREAK 38
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1431
msgid ""
"This is the ways things always were&mdash;until quite recently. For most of "
"our history, the public domain was just over the horizon. From until 1978, "
"the average copyright term was never more than thirty-two years, meaning "
"that most culture just a generation and a half old was free for anyone to "
"build upon without the permission of anyone else.  Today's equivalent would "
"be for creative work from the 1960s and 1970s to now be free for the next "
"Walt Disney to build upon without permission. Yet today, the public domain "
"is presumptive only for content from before the Great Depression."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1450
msgid ""
"<emphasis role=\"strong\">Of course</emphasis>, Walt Disney had no monopoly "
"on <quote>Walt Disney creativity.</quote> Nor does America. The norm of free"
" culture has, until recently, and except within totalitarian nations, been "
"broadly exploited and quite universal."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1455 freeculture.xml:1559 freeculture.xml:1673
msgid "comics, Japanese"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1457 freeculture.xml:1675
msgid "Japanese comics"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1458 freeculture.xml:1676
msgid "manga"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1461
msgid ""
"Consider, for example, a form of creativity that seems strange to many "
"Americans but that is inescapable within Japanese culture: "
"<citetitle>manga</citetitle>, or comics. The Japanese are fanatics about "
"comics. Some 40 percent of publications are comics, and 30 percent of "
"publication revenue derives from comics. They are everywhere in Japanese "
"society, at every magazine stand, carried by a large proportion of commuters"
" on Japan's extraordinary system of public transportation."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1470
msgid ""
"Americans tend to look down upon this form of culture. That's an "
"unattractive characteristic of ours. We're likely to misunderstand much "
"about manga, because few of us have ever read anything close to the stories "
"that these <quote>graphic novels</quote> tell. For the Japanese, manga cover"
" every aspect of social life. For us, comics are <quote>men in "
"tights.</quote> And anyway, it's not as if the New York subways are filled "
"with readers of Joyce or even Hemingway. People of different cultures "
"distract themselves in different ways, the Japanese in this interestingly "
"different way."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1481
msgid ""
"But my purpose here is not to understand manga. It is to describe a variant "
"on manga that from a lawyer's perspective is quite odd, but from a Disney "
"perspective is quite familiar."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1486 freeculture.xml:1674
msgid "doujinshi comics"
msgstr ""

#.  PAGE BREAK 39
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1488
msgid ""
"This is the phenomenon of <citetitle>doujinshi</citetitle>. Doujinshi are "
"also comics, but they are a kind of copycat comic. A rich ethic governs the "
"creation of doujinshi. It is not doujinshi if it is "
"<emphasis>just</emphasis> a copy; the artist must make a contribution to the"
" art he copies, by transforming it either subtly or significantly. A "
"doujinshi comic can thus take a mainstream comic and develop it "
"differently&mdash;with a different story line. Or the comic can keep the "
"character in character but change its look slightly. There is no formula for"
" what makes the doujinshi sufficiently <quote>different.</quote> But they "
"must be different if they are to be considered true doujinshi. Indeed, there"
" are committees that review doujinshi for inclusion within shows and reject "
"any copycat comic that is merely a copy."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1504
msgid ""
"These copycat comics are not a tiny part of the manga market. They are huge."
" More than 33,000 <quote>circles</quote> of creators from across Japan "
"produce these bits of Walt Disney creativity. More than 450,000 Japanese "
"come together twice a year, in the largest public gathering in the country, "
"to exchange and sell them. This market exists in parallel to the mainstream "
"commercial manga market. In some ways, it obviously competes with that "
"market, but there is no sustained effort by those who control the commercial"
" manga market to shut the doujinshi market down. It flourishes, despite the "
"competition and despite the law."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:1514 freeculture.xml:1558 freeculture.xml:1672
msgid "Japanese"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1517
msgid ""
"The most puzzling feature of the doujinshi market, for those trained in the "
"law, at least, is that it is allowed to exist at all. Under Japanese "
"copyright law, which in this respect (on paper) mirrors American copyright "
"law, the doujinshi market is an illegal one. Doujinshi are plainly "
"<quote>derivative works.</quote> There is no general practice by doujinshi "
"artists of securing the permission of the manga creators. Instead, the "
"practice is simply to take and modify the creations of others, as Walt "
"Disney did with <citetitle>Steamboat Bill, Jr</citetitle>. Under both "
"Japanese and American law, that <quote>taking</quote> without the permission"
" of the original copyright owner is illegal. It is an infringement of the "
"original copyright to make a copy or a derivative work without the original "
"copyright owner's permission."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1531
msgid "Winick, Judd"
msgstr ""

#.  f5
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1543
msgid ""
"For an excellent history, see Scott McCloud, <citetitle>Reinventing "
"Comics</citetitle> (New York: Perennial, 2000)."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1533
msgid ""
"Yet this illegal market exists and indeed flourishes in Japan, and in the "
"view of many, it is precisely because it exists that Japanese manga "
"flourish. As American graphic novelist Judd Winick said to me, <quote>The "
"early days of comics in America are very much like what's going on in Japan "
"now. &hellip; American comics were born out of copying each other. &hellip; "
"That's how [the artists] learn to draw &mdash; by going into comic books and"
" not tracing them, but looking at them and copying them</quote> and building"
" from them.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1548
msgid "Superman comics"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1550
msgid ""
"American comics now are quite different, Winick explains, in part because of"
" the legal difficulty of adapting comics the way doujinshi are allowed. "
"Speaking of Superman, Winick told me, <quote>there are these rules and you "
"have to stick to them.</quote> There are things Superman "
"<quote>cannot</quote> do. <quote>As a creator, it's frustrating having to "
"stick to some parameters which are fifty years old.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1560
msgid "Mehra, Salil"
msgstr ""

#.  f6
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1570
msgid ""
"See Salil K. Mehra, <quote>Copyright and Comics in Japan: Does Law Explain "
"Why All the Comics My Kid Watches Are Japanese Imports?</quote> "
"<citetitle>Rutgers Law Review</citetitle> 55 (2002): 155, 182. "
"<quote>[T]here might be a collective economic rationality that would lead "
"manga and anime artists to forgo bringing legal actions for infringement. "
"One hypothesis is that all manga artists may be better off collectively if "
"they set aside their individual self-interest and decide not to press their "
"legal rights. This is essentially a prisoner's dilemma solved.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1562
msgid ""
"The norm in Japan mitigates this legal difficulty. Some say it is precisely "
"the benefit accruing to the Japanese manga market that explains the "
"mitigation. Temple University law professor Salil Mehra, for example, "
"hypothesizes that the manga market accepts these technical violations "
"because they spur the manga market to be more wealthy and productive. "
"Everyone would be worse off if doujinshi were banned, so the law does not "
"ban doujinshi.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1584
msgid ""
"The problem with this story, however, as Mehra plainly acknowledges, is that"
" the mechanism producing this laissez faire response is not clear. It may "
"well be that the market as a whole is better off if doujinshi are permitted "
"rather than banned, but that doesn't explain why individual copyright owners"
" don't sue nonetheless. If the law has no general exception for doujinshi, "
"and indeed in some cases individual manga artists have sued doujinshi "
"artists, why is there not a more general pattern of blocking this "
"<quote>free taking</quote> by the doujinshi culture?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1597
msgid ""
"I spent four wonderful months in Japan, and I asked this question as often "
"as I could. Perhaps the best account in the end was offered by a friend from"
" a major Japanese law firm. <quote>We don't have enough lawyers,</quote> he "
"told me one afternoon. There <quote>just aren't enough resources to "
"prosecute cases like this.</quote>"
msgstr ""

#.  PAGE BREAK 41
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1604
msgid ""
"This is a theme to which we will return: that regulation by law is a "
"function of both the words on the books and the costs of making those words "
"have effect. For now, focus on the obvious question that is begged: Would "
"Japan be better off with more lawyers? Would manga be richer if doujinshi "
"artists were regularly prosecuted? Would the Japanese gain something "
"important if they could end this practice of uncompensated sharing? Does "
"piracy here hurt the victims of the piracy, or does it help them? Would "
"lawyers fighting this piracy help their clients or hurt them?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1617
msgid "<emphasis role='strong'>Let's pause</emphasis> for a moment."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1620
msgid ""
"If you're like I was a decade ago, or like most people are when they first "
"start thinking about these issues, then just about now you should be puzzled"
" about something you hadn't thought through before."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:1630 freeculture.xml:2987 freeculture.xml:4723
#: freeculture.xml:4982 freeculture.xml:7870 freeculture.xml:8995
msgid "Vaidhyanathan, Siva"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1630
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> The term <citetitle>intellectual "
"property</citetitle> is of relatively recent origin. See Siva Vaidhyanathan,"
" <citetitle>Copyrights and Copywrongs</citetitle>, 11 (New York: New York "
"University Press, 2001). See also Lawrence Lessig, <citetitle>The Future of "
"Ideas</citetitle> (New York: Random House, 2001), 293 n. 26. The term "
"accurately describes a set of <quote>property</quote> rights &mdash; "
"copyright, patents, trademark, and trade-secret &mdash; but the nature of "
"those rights is very different."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1625
msgid ""
"We live in a world that celebrates <quote>property.</quote> I am one of "
"those celebrants.  I believe in the value of property in general, and I also"
" believe in the value of that weird form of property that lawyers call "
"<quote>intellectual property.</quote><placeholder type=\"footnote\" "
"id=\"0\"/> A large, diverse society cannot survive without property; a "
"large, diverse, and modern society cannot flourish without intellectual "
"property."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1647
msgid ""
"But it takes just a second's reflection to realize that there is plenty of "
"value out there that <quote>property</quote> doesn't capture. I don't mean "
"<quote>money can't buy you love,</quote> but rather, value that is plainly "
"part of a process of production, including commercial as well as "
"noncommercial production.  If Disney animators had stolen a set of pencils "
"to draw Steamboat Willie, we'd have no hesitation in condemning that taking "
"as wrong&mdash; even though trivial, even if unnoticed. Yet there was "
"nothing wrong, at least under the law of the day, with Disney's taking from "
"Buster Keaton or from the Brothers Grimm. There was nothing wrong with the "
"taking from Keaton because Disney's use would have been considered "
"<quote>fair.</quote> There was nothing wrong with the taking from the Grimms"
" because the Grimms' work was in the public domain."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:1661
msgid "derivative works based on"
msgstr ""

#.  PAGE BREAK 42
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1663
msgid ""
"Thus, even though the things that Disney took&mdash;or more generally, the "
"things taken by anyone exercising Walt Disney creativity&mdash;are valuable,"
" our tradition does not treat those takings as wrong. Some things remain "
"free for the taking within a free culture, and that freedom is good."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1678
msgid ""
"The same with the doujinshi culture. If a doujinshi artist broke into a "
"publisher's office and ran off with a thousand copies of his latest "
"work&mdash;or even one copy&mdash;without paying, we'd have no hesitation in"
" saying the artist was wrong. In addition to having trespassed, he would "
"have stolen something of value. The law bans that stealing in whatever form,"
" whether large or small."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1687
msgid ""
"Yet there is an obvious reluctance, even among Japanese lawyers, to say that"
" the copycat comic artists are <quote>stealing.</quote> This form of Walt "
"Disney creativity is seen as fair and right, even if lawyers in particular "
"find it hard to say why."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1698 freeculture.xml:4663 freeculture.xml:4795
#: freeculture.xml:4832 freeculture.xml:5162
msgid "Shakespeare, William"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1700
msgid ""
"It's the same with a thousand examples that appear everywhere once you begin"
" to look. Scientists build upon the work of other scientists without asking "
"or paying for the privilege. (<quote>Excuse me, Professor Einstein, but may "
"I have permission to use your theory of relativity to show that you were "
"wrong about quantum physics?</quote>) Acting companies perform adaptations "
"of the works of Shakespeare without securing permission from anyone. (Does "
"<emphasis>anyone</emphasis> believe Shakespeare would be better spread "
"within our culture if there were a central Shakespeare rights clearinghouse "
"that all productions of Shakespeare must appeal to first?) And Hollywood "
"goes through cycles with a certain kind of movie: five asteroid films in the"
" late 1990s; two volcano disaster films in 1997."
msgstr ""

#.  PAGE BREAK 43
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1714
msgid ""
"Creators here and everywhere are always and at all times building upon the "
"creativity that went before and that surrounds them now.  That building is "
"always and everywhere at least partially done without permission and without"
" compensating the original creator. No society, free or controlled, has ever"
" demanded that every use be paid for or that permission for Walt Disney "
"creativity must always be sought. Instead, every society has left a certain "
"bit of its culture free for the taking&mdash;free societies more fully than "
"unfree, perhaps, but all societies to some degree."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1726
msgid ""
"The hard question is therefore not <emphasis>whether</emphasis> a culture is"
" free. All cultures are free to some degree. The hard question instead is "
"<quote><emphasis>How</emphasis> free is this culture?</quote> How much, and "
"how broadly, is the culture free for others to take and build upon? Is that "
"freedom limited to party members? To members of the royal family? To the top"
" ten corporations on the New York Stock Exchange? Or is that freedom spread "
"broadly? To artists generally, whether affiliated with the Met or not? To "
"musicians generally, whether white or not? To filmmakers generally, whether "
"affiliated with a studio or not?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1738
msgid ""
"Free cultures are cultures that leave a great deal open for others to build "
"upon; unfree, or permission, cultures leave much less. Ours was a free "
"culture. It is becoming much less so."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:1747
msgid "CHAPTER TWO: <quote>Mere Copyists</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1748
msgid "Daguerre, Louis"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:1749 freeculture.xml:1904 freeculture.xml:1959
#: freeculture.xml:6751
msgid "camera technology"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1750
msgid "photography"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1752
msgid ""
"<emphasis role='strong'>In 1839</emphasis>, Louis Daguerre invented the "
"first practical technology for producing what we would call "
"<quote>photographs.</quote> Appropriately enough, they were called "
"<quote>daguerreotypes.</quote> The process was complicated and expensive, "
"and the field was thus limited to professionals and a few zealous and "
"wealthy amateurs. (There was even an American Daguerre Association that "
"helped regulate the industry, as do all such associations, by keeping "
"competition down so as to keep prices up.)"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1761
msgid "Talbot, William"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1763
msgid ""
"Yet despite high prices, the demand for daguerreotypes was strong.  This "
"pushed inventors to find simpler and cheaper ways to make <quote>automatic "
"pictures.</quote> William Talbot soon discovered a process for making "
"<quote>negatives.</quote> But because the negatives were glass, and had to "
"be kept wet, the process still remained expensive and cumbersome. In the "
"1870s, dry plates were developed, making it easier to separate the taking of"
" a picture from its developing. These were still plates of glass, and thus "
"it was still not a process within reach of most amateurs."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1773
msgid "Eastman, George"
msgstr ""

#.  PAGE BREAK 45
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1775
msgid ""
"The technological change that made mass photography possible didn't happen "
"until 1888, and was the creation of a single man. George Eastman, himself an"
" amateur photographer, was frustrated by the technology of photographs made "
"with plates. In a flash of insight (so to speak), Eastman saw that if the "
"film could be made to be flexible, it could be held on a single spindle. "
"That roll could then be sent to a developer, driving the costs of "
"photography down substantially. By lowering the costs, Eastman expected he "
"could dramatically broaden the population of photographers."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:1786 freeculture.xml:1941 freeculture.xml:6753
msgid "Kodak cameras"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1787
msgid "Kodak Primer, The (Eastman)"
msgstr ""

#.  f1
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1794
msgid ""
"Reese V. Jenkins, <citetitle>Images and Enterprise</citetitle> (Baltimore: "
"Johns Hopkins University Press, 1975), 112."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1789
msgid ""
"Eastman developed flexible, emulsion-coated paper film and placed rolls of "
"it in small, simple cameras: the Kodak. The device was marketed on the basis"
" of its simplicity. <quote>You press the button and we do the "
"rest.</quote><placeholder type=\"footnote\" id=\"0\"/> As he described in "
"<citetitle>The Kodak Primer</citetitle>:"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1810 freeculture.xml:1836
msgid "Coe, Brian"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para><footnote><para>
#: freeculture.xml:1810
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> Brian Coe, <citetitle>The Birth "
"of Photography</citetitle> (New York: Taplinger Publishing, 1977), 53."
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:1799
msgid ""
"The principle of the Kodak system is the separation of the work that any "
"person whomsoever can do in making a photograph, from the work that only an "
"expert can do. &hellip; We furnish anybody, man, woman or child, who has "
"sufficient intelligence to point a box straight and press a button, with an "
"instrument which altogether removes from the practice of photography the "
"necessity for exceptional facilities or, in fact, any special knowledge of "
"the art. It can be employed without preliminary study, without a darkroom "
"and without chemicals.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  f3
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1829
msgid "Jenkins, 177."
msgstr ""

#.  f4
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1833
msgid "Based on a chart in Jenkins, p. 178."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1818
msgid ""
"For $25, anyone could make pictures. The camera came preloaded with film, "
"and when it had been used, the camera was returned to an Eastman factory, "
"where the film was developed. Over time, of course, the cost of the camera "
"and the ease with which it could be used both improved. Roll film thus "
"became the basis for the explosive growth of popular photography. Eastman's "
"camera first went on sale in 1888; one year later, Kodak was printing more "
"than six thousand negatives a day.  From 1888 through 1909, while industrial"
" production was rising by 4.7 percent, photographic equipment and material "
"sales increased by 11 percent.<placeholder type=\"footnote\" id=\"0\"/> "
"Eastman Kodak's sales during the same period experienced an average annual "
"increase of over 17 percent.<placeholder type=\"footnote\" id=\"1\"/>"
msgstr ""

#.  f5
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1851
msgid "Coe, 58."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1840
msgid ""
"The real significance of Eastman's invention, however, was not economic. It "
"was social. Professional photography gave individuals a glimpse of places "
"they would never otherwise see. Amateur photography gave them the ability to"
" record their own lives in a way they had never been able to do before. As "
"author Brian Coe notes, <quote>For the first time the snapshot album "
"provided the man on the street with a permanent record of his family and its"
" activities. &hellip; For the first time in history there exists an "
"authentic visual record of the appearance and activities of the common man "
"made without [literary] interpretation or bias.</quote><placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1854 freeculture.xml:1960 freeculture.xml:2338
#: freeculture.xml:2356
msgid "democracy"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:1854 freeculture.xml:1960 freeculture.xml:2338
msgid "in technologies of expression"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1855 freeculture.xml:1961 freeculture.xml:2001
#: freeculture.xml:2340
msgid "expression, technologies of"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:1855 freeculture.xml:1961 freeculture.xml:2340
msgid "democratic"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1857
msgid ""
"In this way, the Kodak camera and film were technologies of expression.  The"
" pencil or paintbrush was also a technology of expression, of course. But it"
" took years of training before they could be deployed by amateurs in any "
"useful or effective way. With the Kodak, expression was possible much sooner"
" and more simply. The barrier to expression was lowered. Snobs would sneer "
"at its <quote>quality</quote>; professionals would discount it as "
"irrelevant. But watch a child study how best to frame a picture and you get "
"a sense of the experience of creativity that the Kodak enabled. Democratic "
"tools gave ordinary people a way to express themselves more easily than any "
"tools could have before."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1870
msgid "permissions"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:1870
msgid "photography exempted from"
msgstr ""

#.  f6
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1881
msgid ""
"For illustrative cases, see, for example, <citetitle>Pavesich</citetitle> v."
" <citetitle>N.E. Life Ins. Co</citetitle>., 50 S.E. 68 (Ga. 1905); "
"<citetitle>Foster-Milburn Co</citetitle>. v. <citetitle>Chinn</citetitle>, "
"123090 S.W. 364, 366 (Ky. 1909); <citetitle>Corliss</citetitle> v. "
"<citetitle>Walker</citetitle>, 64 F. 280 (Mass.  Dist. Ct. 1894)."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1872
msgid ""
"What was required for this technology to flourish? Obviously, Eastman's "
"genius was an important part. But also important was the legal environment "
"within which Eastman's invention grew. For early in the history of "
"photography, there was a series of judicial decisions that could well have "
"changed the course of photography substantially.  Courts were asked whether "
"the photographer, amateur or professional, required permission before he "
"could capture and print whatever image he wanted. Their answer was "
"no.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:1890 freeculture.xml:9694
msgid "images, ownership of"
msgstr ""

#.  PAGE BREAK 47
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1892
msgid ""
"The arguments in favor of requiring permission will sound surprisingly "
"familiar. The photographer was <quote>taking</quote> something from the "
"person or building whose photograph he shot&mdash;pirating something of "
"value. Some even thought he was taking the target's soul. Just as Disney was"
" not free to take the pencils that his animators used to draw Mickey, so, "
"too, should these photographers not be free to take images that they thought"
" valuable."
msgstr ""

#. type: Content of:
#. <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:1916
msgid "Warren, Samuel D."
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1913
msgid ""
"Samuel D. Warren and Louis D. Brandeis, <quote>The Right to Privacy,</quote>"
" <citetitle>Harvard Law Review</citetitle> 4 (1890): 193.  <placeholder "
"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1906
msgid ""
"On the other side was an argument that should be familiar, as well.  Sure, "
"there may be something of value being used. But citizens should have the "
"right to capture at least those images that stand in public view.  (Louis "
"Brandeis, who would become a Supreme Court Justice, thought the rule should "
"be different for images from private spaces.<placeholder type=\"footnote\" "
"id=\"0\"/>) It may be that this means that the photographer gets something "
"for nothing. Just as Disney could take inspiration from <citetitle>Steamboat"
" Bill, Jr</citetitle>. or the Brothers Grimm, the photographer should be "
"free to capture an image without compensating the source."
msgstr ""

#.  f8
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:1934
msgid ""
"See Melville B. Nimmer, <quote>The Right of Publicity,</quote> "
"<citetitle>Law and Contemporary Problems</citetitle> 19 (1954): 203; William"
" L. Prosser, <quote>Privacy,</quote> <citetitle>California Law "
"Review</citetitle> 48 (1960) 398&ndash;407; <citetitle>White</citetitle> v. "
"<citetitle>Samsung Electronics America, Inc</citetitle>., 971 F.  2d 1395 "
"(9th Cir. 1992), cert. denied, 508 U.S. 951 (1993)."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1924
msgid ""
"Fortunately for Mr. Eastman, and for photography in general, these early "
"decisions went in favor of the pirates. In general, no permission would be "
"required before an image could be captured and shared with others. Instead, "
"permission was presumed. Freedom was the default.  (The law would eventually"
" craft an exception for famous people: commercial photographers who snap "
"pictures of famous people for commercial purposes have more restrictions "
"than the rest of us. But in the ordinary case, the image can be captured "
"without clearing the rights to do the capturing.<placeholder "
"type=\"footnote\" id=\"0\"/>)"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:1942 freeculture.xml:3770 freeculture.xml:3792
#: freeculture.xml:3793 freeculture.xml:5742 freeculture.xml:9935
msgid "Napster"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1944
msgid ""
"We can only speculate about how photography would have developed had the law"
" gone the other way. If the presumption had been against the photographer, "
"then the photographer would have had to demonstrate permission. Perhaps "
"Eastman Kodak would have had to demonstrate permission, too, before it "
"developed the film upon which images were captured. After all, if permission"
" were not granted, then Eastman Kodak would be benefiting from the "
"<quote>theft</quote> committed by the photographer. Just as Napster "
"benefited from the copyright infringements committed by Napster users, Kodak"
" would be benefiting from the <quote>image-right</quote> infringement of its"
" photographers. We could imagine the law then requiring that some form of "
"permission be demonstrated before a company developed pictures. We could "
"imagine a system developing to demonstrate that permission."
msgstr ""

#.  PAGE BREAK 48
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1965
msgid ""
"But though we could imagine this system of permission, it would be very hard"
" to see how photography could have flourished as it did if the requirement "
"for permission had been built into the rules that govern it. Photography "
"would have existed. It would have grown in importance over time. "
"Professionals would have continued to use the technology as they "
"did&mdash;since professionals could have more easily borne the burdens of "
"the permission system. But the spread of photography to ordinary people "
"would not have occurred. Nothing like that growth would have been realized. "
"And certainly, nothing like that growth in a democratic technology of "
"expression would have been realized."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:1981 freeculture.xml:6752
msgid "digital cameras"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1982
msgid "Just Think!"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:1984
msgid ""
"<emphasis role='strong'>If you drive</emphasis> through San Francisco's "
"Presidio, you might see two gaudy yellow school buses painted over with "
"colorful and striking images, and the logo <quote>Just Think!</quote> in "
"place of the name of a school. But there's little that's <quote>just</quote>"
" cerebral in the projects that these busses enable.  These buses are filled "
"with technologies that teach kids to tinker with film. Not the film of "
"Eastman. Not even the film of your VCR.  Rather the <quote>film</quote> of "
"digital cameras. Just Think! is a project that enables kids to make films, "
"as a way to understand and critique the filmed culture that they find all "
"around them. Each year, these busses travel to more than thirty schools and "
"enable three hundred to five hundred children to learn something about media"
" by doing something with media.  By doing, they think. By tinkering, they "
"learn."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:1999 freeculture.xml:2797
msgid "education"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:1999
msgid "in media literacy"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2000
msgid "media literacy"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:2001
msgid "media literacy and"
msgstr ""

#.  f9
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2009
msgid ""
"H. Edward Goldberg, <quote>Essential Presentation Tools: Hardware and "
"Software You Need to Create Digital Multimedia Presentations,</quote> "
"cadalyst, February 2002, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #7</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2003
msgid ""
"These buses are not cheap, but the technology they carry is increasingly so."
" The cost of a high-quality digital video system has fallen dramatically.  "
"As one analyst puts it, <quote>Five years ago, a good real-time digital "
"video editing system cost $25,000. Today you can get professional quality "
"for $595.</quote><placeholder type=\"footnote\" id=\"0\"/> These buses are "
"filled with technology that would have cost hundreds of thousands just ten "
"years ago. And it is now feasible to imagine not just buses like this, but "
"classrooms across the country where kids are learning more and more of "
"something teachers call <quote>media literacy.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2019
msgid "Yanofsky, Dave"
msgstr ""

#.  PAGE BREAK 49
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2022
msgid ""
"<quote>Media literacy,</quote> as Dave Yanofsky, the executive director of "
"Just Think!, puts it, <quote>is the ability &hellip; to understand, analyze,"
" and deconstruct media images. Its aim is to make [kids] literate about the "
"way media works, the way it's constructed, the way it's delivered, and the "
"way people access it.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2030
msgid ""
"This may seem like an odd way to think about <quote>literacy.</quote> For "
"most people, literacy is about reading and writing. Faulkner and Hemingway "
"and noticing split infinitives are the things that <quote>literate</quote> "
"people know about."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:2035 freeculture.xml:2587 freeculture.xml:6748
#: freeculture.xml:7720 freeculture.xml:8817 freeculture.xml:8871
msgid "advertising"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:2036 freeculture.xml:6750 freeculture.xml:8818
msgid "commercials"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:2037 freeculture.xml:6749 freeculture.xml:8819
#: freeculture.xml:8853 freeculture.xml:15273
msgid "television"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:2037 freeculture.xml:6749 freeculture.xml:8819
msgid "advertising on"
msgstr ""

#.  f10
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2043
msgid ""
"Judith Van Evra, <citetitle>Television and Child Development</citetitle> "
"(Hillsdale, N.J.: Lawrence Erlbaum Associates, 1990); <quote>Findings on "
"Family and TV Study,</quote> <citetitle>Denver Post</citetitle>, 25 May "
"1997, B6."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2039
msgid ""
"Maybe. But in a world where children see on average 390 hours of television "
"commercials per year, or between 20,000 and 45,000 commercials "
"generally,<placeholder type=\"footnote\" id=\"0\"/> it is increasingly "
"important to understand the <quote>grammar</quote> of media. For just as "
"there is a grammar for the written word, so, too, is there one for media. "
"And just as kids learn how to write by writing lots of terrible prose, kids "
"learn how to write media by constructing lots of (at least at first) "
"terrible media."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2054
msgid ""
"A growing field of academics and activists sees this form of literacy as "
"crucial to the next generation of culture. For though anyone who has written"
" understands how difficult writing is&mdash;how difficult it is to sequence "
"the story, to keep a reader's attention, to craft language to be "
"understandable&mdash;few of us have any real sense of how difficult media "
"is. Or more fundamentally, few of us have a sense of how media works, how it"
" holds an audience or leads it through a story, how it triggers emotion or "
"builds suspense."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2065
msgid ""
"It took filmmaking a generation before it could do these things well.  But "
"even then, the knowledge was in the filming, not in writing about the film. "
"The skill came from experiencing the making of a film, not from reading a "
"book about it. One learns to write by writing and then reflecting upon what "
"one has written. One learns to write with images by making them and then "
"reflecting upon what one has created."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2072 freeculture.xml:2088 freeculture.xml:2194
msgid "Daley, Elizabeth"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2073
msgid "Crichton, Michael"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2087 freeculture.xml:2147 freeculture.xml:2154
#: freeculture.xml:2227 freeculture.xml:2650
msgid "Barish, Stephanie"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2085
msgid ""
"Interview with Elizabeth Daley and Stephanie Barish, 13 December 2002.  "
"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
"id=\"1\"/>"
msgstr ""

#.  f12
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2099
msgid ""
"See Scott Steinberg, <quote>Crichton Gets Medieval on PCs,</quote> E!online,"
" 4 November 2000, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #8</ulink>; <quote>Timeline,</quote> 22 November "
"2000, available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#9</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2075
msgid ""
"This grammar has changed as media has changed. When it was just film, as "
"Elizabeth Daley, executive director of the University of Southern "
"California's Annenberg Center for Communication and dean of the USC School "
"of Cinema-Television, explained to me, the grammar was about <quote>the "
"placement of objects, color, &hellip; rhythm, pacing, and "
"texture.</quote><placeholder type=\"footnote\" id=\"0\"/> But as computers "
"open up an interactive space where a story is <quote>played</quote> as well "
"as experienced, that grammar changes. The simple control of narrative is "
"lost, and so other techniques are necessary. Author Michael Crichton had "
"mastered the narrative of science fiction.  But when he tried to design a "
"computer game based on one of his works, it was a new craft he had to learn."
" How to lead people through a game without their feeling they have been led "
"was not obvious, even to a wildly successful author.<placeholder "
"type=\"footnote\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2106
msgid "computer games"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2108
msgid ""
"This skill is precisely the craft a filmmaker learns. As Daley describes, "
"<quote>people are very surprised about how they are led through a film. [I]t"
" is perfectly constructed to keep you from seeing it, so you have no idea. "
"If a filmmaker succeeds you do not know how you were led.</quote> If you "
"know you were led through a film, the film has failed."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2115
msgid ""
"Yet the push for an expanded literacy&mdash;one that goes beyond text to "
"include audio and visual elements&mdash;is not about making better film "
"directors.  The aim is not to improve the profession of filmmaking at all.  "
"Instead, as Daley explained,"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:2122
msgid ""
"From my perspective, probably the most important digital divide is not "
"access to a box. It's the ability to be empowered with the language that "
"that box works in. Otherwise only a very few people can write with this "
"language, and all the rest of us are reduced to being read-only."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2130
msgid ""
"<quote>Read-only.</quote> Passive recipients of culture produced elsewhere."
"  Couch potatoes. Consumers. This is the world of media from the twentieth "
"century."
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2146
msgid "Interview with Daley and Barish.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#.  f31
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:2151 freeculture.xml:4037 freeculture.xml:5210
#: freeculture.xml:8706
msgid "Ibid."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2135
msgid ""
"The twenty-first century could be different. This is the crucial point: It "
"could be both read and write. Or at least reading and better understanding "
"the craft of writing. Or best, reading and understanding the tools that "
"enable the writing to lead or mislead. The aim of any literacy, and this "
"literacy in particular, is to <quote>empower people to choose the "
"appropriate language for what they need to create or "
"express.</quote><placeholder type=\"footnote\" id=\"0\"/> It is to enable "
"students <quote>to communicate in the language of the twenty-first "
"century.</quote><placeholder type=\"footnote\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2156
msgid ""
"As with any language, this language comes more easily to some than to "
"others. It doesn't necessarily come more easily to those who excel in "
"written language. Daley and Stephanie Barish, director of the Institute for "
"Multimedia Literacy at the Annenberg Center, describe one particularly "
"poignant example of a project they ran in a high school.  The high school "
"was a very poor inner-city Los Angeles school. In all the traditional "
"measures of success, this school was a failure. But Daley and Barish ran a "
"program that gave kids an opportunity to use film to express meaning about "
"something the students know something about&mdash;gun violence."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2169
msgid ""
"The class was held on Friday afternoons, and it created a relatively new "
"problem for the school. While the challenge in most classes was getting the "
"kids to come, the challenge in this class was keeping them away. The "
"<quote>kids were showing up at 6 A.M. and leaving at 5 at night,</quote> "
"said Barish. They were working harder than in any other class to do what "
"education should be about&mdash;learning how to express themselves."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2177
msgid ""
"Using whatever <quote>free web stuff they could find,</quote> and relatively"
" simple tools to enable the kids to mix <quote>image, sound, and "
"text,</quote> Barish said this class produced a series of projects that "
"showed something about gun violence that few would otherwise understand. "
"This was an issue close to the lives of these students. The project "
"<quote>gave them a tool and empowered them to be able to both understand it "
"and talk about it,</quote> Barish explained. That tool succeeded in creating"
" expression&mdash;far more successfully and powerfully than could have been "
"created using only text. <quote>If you had said to these students, `you have"
" to do it in text,' they would've just thrown their hands up and gone and "
"done something else,</quote> Barish described, in part, no doubt, because "
"expressing themselves in text is not something these students can do well. "
"Yet neither is text a form in which <emphasis>these</emphasis> ideas can be "
"expressed well. The power of this message depended upon its connection to "
"this form of expression."
msgstr ""

#.  PAGE BREAK 52
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2198
msgid ""
"<quote>But isn't education about teaching kids to write?</quote> I asked. In"
" part, of course, it is. But why are we teaching kids to write? Education, "
"Daley explained, is about giving students a way of <quote>constructing "
"meaning.</quote> To say that that means just writing is like saying teaching"
" writing is only about teaching kids how to spell. Text is one "
"part&mdash;and increasingly, not the most powerful part&mdash;of "
"constructing meaning. As Daley explained in the most moving part of our "
"interview,"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:2209
msgid ""
"What you want is to give these students ways of constructing meaning. If all"
" you give them is text, they're not going to do it.  Because they can't. You"
" know, you've got Johnny who can look at a video, he can play a video game, "
"he can do graffiti all over your walls, he can take your car apart, and he "
"can do all sorts of other things. He just can't read your text. So Johnny "
"comes to school and you say, <quote>Johnny, you're illiterate. Nothing you "
"can do matters.</quote> Well, Johnny then has two choices: He can dismiss "
"you or he [can] dismiss himself. If his ego is healthy at all, he's going to"
" dismiss you. [But i]nstead, if you say, <quote>Well, with all these things "
"that you can do, let's talk about this issue. Play for me music that you "
"think reflects that, or show me images that you think reflect that, or draw "
"for me something that reflects that.</quote> Not by giving a kid a video "
"camera and &hellip; saying, <quote>Let's go have fun with the video camera "
"and make a little movie.</quote> But instead, really help you take these "
"elements that you understand, that are your language, and construct meaning "
"about the topic.&hellip;"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:2229
msgid ""
"That empowers enormously. And then what happens, of course, is eventually, "
"as it has happened in all these classes, they bump up against the fact, "
"<quote>I need to explain this and I really need to write something.</quote> "
"And as one of the teachers told Stephanie, they would rewrite a paragraph 5,"
" 6, 7, 8 times, till they got it right."
msgstr ""

#.  PAGE BREAK 53
#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:2236
msgid ""
"Because they needed to. There was a reason for doing it. They needed to say "
"something, as opposed to just jumping through your hoops. They actually "
"needed to use a language that they didn't speak very well. But they had come"
" to understand that they had a lot of power with this language."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2250 freeculture.xml:2309 freeculture.xml:6041
msgid "September 11, 2001, terrorist attacks of"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2251
msgid "World Trade Center"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2252 freeculture.xml:5961
msgid "news coverage"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2254
msgid ""
"<emphasis role='strong'>When two planes</emphasis> crashed into the World "
"Trade Center, another into the Pentagon, and a fourth into a Pennsylvania "
"field, all media around the world shifted to this news. Every moment of just"
" about every day for that week, and for weeks after, television in "
"particular, and media generally, retold the story of the events we had just "
"witnessed. The telling was a retelling, because we had seen the events that "
"were described. The genius of this awful act of terrorism was that the "
"delayed second attack was perfectly timed to assure that the whole world "
"would be watching."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2266
msgid ""
"These retellings had an increasingly familiar feel. There was music scored "
"for the intermissions, and fancy graphics that flashed across the screen. "
"There was a formula to interviews. There was <quote>balance,</quote> and "
"seriousness. This was news choreographed in the way we have increasingly "
"come to expect it, <quote>news as entertainment,</quote> even if the "
"entertainment is tragedy."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:2273 freeculture.xml:8645 freeculture.xml:8865
msgid "ABC"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2274
msgid "CBS"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2276
msgid ""
"But in addition to this produced news about the <quote>tragedy of September "
"11,</quote> those of us tied to the Internet came to see a very different "
"production as well. The Internet was filled with accounts of the same "
"events. Yet these Internet accounts had a very different flavor. Some people"
" constructed photo pages that captured images from around the world and "
"presented them as slide shows with text. Some offered open letters. There "
"were sound recordings. There was anger and frustration.  There were attempts"
" to provide context. There was, in short, an extraordinary worldwide barn "
"raising, in the sense Mike Godwin uses the term in his book <citetitle>Cyber"
" Rights</citetitle>, around a news event that had captured the attention of "
"the world. There was ABC and CBS, but there was also the Internet."
msgstr ""

#.  PAGE BREAK 54
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2291
msgid ""
"I don't mean simply to praise the Internet&mdash;though I do think the "
"people who supported this form of speech should be praised. I mean instead "
"to point to a significance in this form of speech. For like a Kodak, the "
"Internet enables people to capture images. And like in a movie by a student "
"on the <quote>Just Think!</quote> bus, the visual images could be mixed with"
" sound or text."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2301
msgid ""
"But unlike any technology for simply capturing images, the Internet allows "
"these creations to be shared with an extraordinary number of people, "
"practically instantaneously. This is something new in our "
"tradition&mdash;not just that culture can be captured mechanically, and "
"obviously not just that events are commented upon critically, but that this "
"mix of captured images, sound, and commentary can be widely spread "
"practically instantaneously."
msgstr ""

#. type: Content of:
#. <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:2310 freeculture.xml:2405 freeculture.xml:2544
msgid "blogs (Web-logs)"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:2311 freeculture.xml:2407
msgid "blogs on"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2312 freeculture.xml:2408
msgid "Web-logs (blogs)"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2314
msgid ""
"September 11 was not an aberration. It was a beginning. Around the same "
"time, a form of communication that has grown dramatically was just beginning"
" to come into public consciousness: the Web-log, or blog. The blog is a kind"
" of public diary, and within some cultures, such as in Japan, it functions "
"very much like a diary. In those cultures, it records private facts in a "
"public way&mdash;it's a kind of electronic <citetitle>Jerry "
"Springer</citetitle>, available anywhere in the world."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2322 freeculture.xml:2391
msgid "political discourse"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:2323
msgid "public discourse conducted on"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2325
msgid ""
"But in the United States, blogs have taken on a very different character.  "
"There are some who use the space simply to talk about their private life. "
"But there are many who use the space to engage in public discourse. "
"Discussing matters of public import, criticizing others who are mistaken in "
"their views, criticizing politicians about the decisions they make, offering"
" solutions to problems we all see: blogs create the sense of a virtual "
"public meeting, but one in which we don't all hope to be there at the same "
"time and in which conversations are not necessarily linked. The best of the "
"blog entries are relatively short; they point directly to words used by "
"others, criticizing with or adding to them.  They are arguably the most "
"important form of unchoreographed public discourse that we have."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2339
msgid "elections"
msgstr ""

#.  PAGE BREAK 55
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2342
msgid ""
"That's a strong statement. Yet it says as much about our democracy as it "
"does about blogs. This is the part of America that is most difficult for "
"those of us who love America to accept: Our democracy has atrophied.  Of "
"course we have elections, and most of the time the courts allow those "
"elections to count. A relatively small number of people vote in those "
"elections. The cycle of these elections has become totally professionalized "
"and routinized. Most of us think this is democracy."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2355
msgid "Tocqueville, Alexis de"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:2356
msgid "public discourse in"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2357
msgid "jury system"
msgstr ""

#.  f15
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2374
msgid ""
"See, for example, Alexis de Tocqueville, <citetitle>Democracy in "
"America</citetitle>, bk. 1, trans.  Henry Reeve (New York: Bantam Books, "
"2000), ch. 16."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2359
msgid ""
"But democracy has never just been about elections. Democracy means rule by "
"the people, but rule means something more than mere elections. In our "
"tradition, it also means control through reasoned discourse.  This was the "
"idea that captured the imagination of Alexis de Tocqueville, the nineteenth-"
"century French lawyer who wrote the most important account of early "
"<quote>Democracy in America.</quote> It wasn't popular elections that "
"fascinated him&mdash;it was the jury, an institution that gave ordinary "
"people the right to choose life or death for other citizens.  And most "
"fascinating for him was that the jury didn't just vote about the outcome "
"they would impose. They deliberated. Members argued about the "
"<quote>right</quote> result; they tried to persuade each other of the "
"<quote>right</quote> result, and in criminal cases at least, they had to "
"agree upon a unanimous result for the process to come to an end.<placeholder"
" type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  f16
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2384
msgid ""
"Bruce Ackerman and James Fishkin, <quote>Deliberation Day,</quote> "
"<citetitle>Journal of Political Philosophy</citetitle> 10 (2) (2002): 129."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2380
msgid ""
"Yet even this institution flags in American life today. And in its place, "
"there is no systematic effort to enable citizen deliberation. Some are "
"pushing to create just such an institution.<placeholder type=\"footnote\" "
"id=\"0\"/> And in some towns in New England, something close to deliberation"
" remains. But for most of us for most of the time, there is no time or place"
" for <quote>democratic deliberation</quote> to occur."
msgstr ""

#.  f17
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2400
msgid ""
"Cass Sunstein, <citetitle>Republic.com</citetitle> (Princeton: Princeton "
"University Press, 2001), 65&ndash;80, 175, 182, 183, 192."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2393
msgid ""
"More bizarrely, there is generally not even permission for it to occur.  We,"
" the most powerful democracy in the world, have developed a strong norm "
"against talking about politics. It's fine to talk about politics with people"
" you agree with. But it is rude to argue about politics with people you "
"disagree with. Political discourse becomes isolated, and isolated discourse "
"becomes more extreme.<placeholder type=\"footnote\" id=\"0\"/> We say what "
"our friends want to hear, and hear very little beyond what our friends say."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2406
msgid "e-mail"
msgstr ""

#.  PAGE BREAK 56
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2413
msgid ""
"Enter the blog. The blog's very architecture solves one part of this "
"problem. People post when they want to post, and people read when they want "
"to read. The most difficult time is synchronous time.  Technologies that "
"enable asynchronous communication, such as e-mail, increase the opportunity "
"for communication. Blogs allow for public discourse without the public ever "
"needing to gather in a single public place."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2424
msgid ""
"But beyond architecture, blogs also have solved the problem of norms. "
"There's no norm (yet) in blog space not to talk about politics.  Indeed, the"
" space is filled with political speech, on both the right and the left. Some"
" of the most popular sites are conservative or libertarian, but there are "
"many of all political stripes. And even blogs that are not political cover "
"political issues when the occasion merits."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2431
msgid "Dean, Howard"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2433
msgid ""
"The significance of these blogs is tiny now, though not so tiny. The name "
"Howard Dean may well have faded from the 2004 presidential race but for "
"blogs. Yet even if the number of readers is small, the reading is having an "
"effect."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2438
msgid "Lott, Trent"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2439
msgid "Thurmond, Strom"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:2440
msgid "blog pressure on"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:2441
msgid "news events on"
msgstr ""

#.  f18
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2454
msgid ""
"Noah Shachtman, <quote>With Incessant Postings, a Pundit Stirs the "
"Pot,</quote> New York Times, 16 January 2003, G5."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2443
msgid ""
"One direct effect is on stories that had a different life cycle in the "
"mainstream media. The Trent Lott affair is an example. When Lott "
"<quote>misspoke</quote> at a party for Senator Strom Thurmond, essentially "
"praising Thurmond's segregationist policies, he calculated correctly that "
"this story would disappear from the mainstream press within forty-eight "
"hours. It did. But he didn't calculate its life cycle in blog space. The "
"bloggers kept researching the story. Over time, more and more instances of "
"the same <quote>misspeaking</quote> emerged. Finally, the story broke back "
"into the mainstream press. In the end, Lott was forced to resign as senate "
"majority leader.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:2458 freeculture.xml:2492
msgid "commercial imperatives of"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2460
msgid ""
"This different cycle is possible because the same commercial pressures don't"
" exist with blogs as with other ventures. Television and newspapers are "
"commercial entities. They must work to keep attention.  If they lose "
"readers, they lose revenue. Like sharks, they must move on."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:2467
msgid "peer-generated rankings on"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2469
msgid ""
"But bloggers don't have a similar constraint. They can obsess, they can "
"focus, they can get serious. If a particular blogger writes a particularly "
"interesting story, more and more people link to that story. And as the "
"number of links to a particular story increases, it rises in the ranks of "
"stories. People read what is popular; what is popular has been selected by a"
" very democratic process of peer-generated rankings."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2478
msgid "journalism"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2479
msgid "Winer, Dave"
msgstr ""

#.  PAGE BREAK 57
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2481
msgid ""
"There's a second way, as well, in which blogs have a different cycle from "
"the mainstream press. As Dave Winer, one of the fathers of this movement and"
" a software author for many decades, told me, another difference is the "
"absence of a financial <quote>conflict of interest.</quote> <quote>I think "
"you have to take the conflict of interest</quote> out of journalism, Winer "
"told me.  <quote>An amateur journalist simply doesn't have a conflict of "
"interest, or the conflict of interest is so easily disclosed that you know "
"you can sort of get it out of the way.</quote>"
msgstr ""

#. type: Content of:
#. <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:2491 freeculture.xml:2541
msgid "CNN"
msgstr ""

#. type: Content of:
#. <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:2493 freeculture.xml:2542 freeculture.xml:5905
msgid "Iraq war"
msgstr ""

#.  f19
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2502
msgid "Telephone interview with David Winer, 16 April 2003."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2496
msgid ""
"These conflicts become more important as media becomes more concentrated "
"(more on this below). A concentrated media can hide more from the public "
"than an unconcentrated media can&mdash;as CNN admitted it did after the Iraq"
" war because it was afraid of the consequences to its own "
"employees.<placeholder type=\"footnote\" id=\"0\"/> It also needs to sustain"
" a more coherent account. (In the middle of the Iraq war, I read a post on "
"the Internet from someone who was at that time listening to a satellite "
"uplink with a reporter in Iraq. The New York headquarters was telling the "
"reporter over and over that her account of the war was too bleak: She needed"
" to offer a more optimistic story. When she told New York that wasn't "
"warranted, they told her that <emphasis>they</emphasis> were writing "
"<quote>the story.</quote>)"
msgstr ""

#.  f20
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2522
msgid ""
"John Schwartz, <quote>Loss of the Shuttle: The Internet; A Wealth of "
"Information Online,</quote> <citetitle>New York Times</citetitle>, 2 "
"February 2003, A28; Staci D. Kramer, <quote>Shuttle Disaster Coverage Mixed,"
" but Strong Overall,</quote> Online Journalism Review, 2 February 2003, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #10</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2514
msgid ""
"Blog space gives amateurs a way to enter the "
"debate&mdash;<quote>amateur</quote> not in the sense of inexperienced, but "
"in the sense of an Olympic athlete, meaning not paid by anyone to give their"
" reports. It allows for a much broader range of input into a story, as "
"reporting on the Columbia disaster revealed, when hundreds from across the "
"southwest United States turned to the Internet to retell what they had "
"seen.<placeholder type=\"footnote\" id=\"0\"/> And it drives readers to read"
" across the range of accounts and <quote>triangulate,</quote> as Winer puts "
"it, the truth. Blogs, Winer says, are <quote>communicating directly with our"
" constituency, and the middle man is out of it</quote>&mdash;with all the "
"benefits, and costs, that might entail."
msgstr ""

#. type: Content of:
#. <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:2543
msgid "Olafson, Steve"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2541
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
"id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> <placeholder "
"type=\"indexterm\" id=\"3\"/> See Michael Falcone, <quote>Does an Editor's "
"Pencil Ruin a Web Log?</quote> <citetitle>New York Times</citetitle>, 29 "
"September 2003, C4. (<quote>Not all news organizations have been as "
"accepting of employees who blog. Kevin Sites, a CNN correspondent in Iraq "
"who started a blog about his reporting of the war on March 9, stopped "
"posting 12 days later at his bosses' request. Last year Steve Olafson, a "
"<citetitle>Houston Chronicle</citetitle> reporter, was fired for keeping a "
"personal Web log, published under a pseudonym, that dealt with some of the "
"issues and people he was covering.</quote>)"
msgstr ""

#.  PAGE BREAK 58
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2534
msgid ""
"Winer is optimistic about the future of journalism infected with blogs. "
"<quote>It's going to become an essential skill,</quote> Winer predicts, for "
"public figures and increasingly for private figures as well. It's not clear "
"that <quote>journalism</quote> is happy about this&mdash;some journalists "
"have been told to curtail their blogging.<placeholder type=\"footnote\" "
"id=\"0\"/> But it is clear that we are still in transition. <quote>A lot of "
"what we are doing now is warm-up exercises,</quote> Winer told me.  There is"
" a lot that must mature before this space has its mature effect.  And as the"
" inclusion of content in this space is the least infringing use of the "
"Internet (meaning infringing on copyright), Winer said, <quote>we will be "
"the last thing that gets shut down.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2565
msgid ""
"This speech affects democracy. Winer thinks that happens because <quote>you "
"don't have to work for somebody who controls, [for] a gatekeeper.</quote> "
"That is true. But it affects democracy in another way as well.  As more and "
"more citizens express what they think, and defend it in writing, that will "
"change the way people understand public issues. It is easy to be wrong and "
"misguided in your head. It is harder when the product of your mind can be "
"criticized by others. Of course, it is a rare human who admits that he has "
"been persuaded that he is wrong. But it is even rarer for a human to ignore "
"when he has been proven wrong.  The writing of ideas, arguments, and "
"criticism improves democracy.  Today there are probably a couple of million "
"blogs where such writing happens. When there are ten million, there will be "
"something extraordinary to report."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:2586 freeculture.xml:6739
msgid "Brown, John Seely"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2589
msgid ""
"<emphasis role='strong'>John Seely Brown</emphasis> is the chief scientist "
"of the Xerox Corporation.  His work, as his Web site describes it, is "
"<quote>human learning and &hellip; the creation of knowledge ecologies for "
"creating &hellip; innovation.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2595
msgid ""
"Brown thus looks at these technologies of digital creativity a bit "
"differently from the perspectives I've sketched so far. I'm sure he would be"
" excited about any technology that might improve democracy. But his real "
"excitement comes from how these technologies affect learning."
msgstr ""

#.  PAGE BREAK 59
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2602
msgid ""
"As Brown believes, we learn by tinkering. When <quote>a lot of us grew "
"up,</quote> he explains, that tinkering was done <quote>on motorcycle "
"engines, lawnmower engines, automobiles, radios, and so on.</quote> But "
"digital technologies enable a different kind of tinkering&mdash;with "
"abstract ideas though in concrete form. The kids at Just Think! not only "
"think about how a commercial portrays a politician; using digital "
"technology, they can take the commercial apart and manipulate it, tinker "
"with it to see how it does what it does. Digital technologies launch a kind "
"of bricolage, or <quote>free collage,</quote> as Brown calls it. Many get to"
" add to or transform the tinkering of many others."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2615
msgid ""
"The best large-scale example of this kind of tinkering so far is free "
"software or open-source software (FS/OSS). FS/OSS is software whose source "
"code is shared. Anyone can download the technology that makes a FS/OSS "
"program run. And anyone eager to learn how a particular bit of FS/OSS "
"technology works can tinker with the code."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2622
msgid ""
"This opportunity creates a <quote>completely new kind of learning "
"platform,</quote> as Brown describes. <quote>As soon as you start doing "
"that, you &hellip; unleash a free collage on the community, so that other "
"people can start looking at your code, tinkering with it, trying it out, "
"seeing if they can improve it.</quote> Each effort is a kind of "
"apprenticeship. <quote>Open source becomes a major apprenticeship "
"platform.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2630
msgid ""
"In this process, <quote>the concrete things you tinker with are abstract.  "
"They are code.</quote> Kids are <quote>shifting to the ability to tinker in "
"the abstract, and this tinkering is no longer an isolated activity that "
"you're doing in your garage. You are tinkering with a community platform. "
"&hellip; You are tinkering with other people's stuff. The more you tinker "
"the more you improve.</quote> The more you improve, the more you learn."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2639
msgid ""
"This same thing happens with content, too. And it happens in the same "
"collaborative way when that content is part of the Web. As Brown puts it, "
"<quote>the Web [is] the first medium that truly honors multiple forms of "
"intelligence.</quote> Earlier technologies, such as the typewriter or word "
"processors, helped amplify text. But the Web amplifies much more than text. "
"<quote>The Web &hellip; says if you are musical, if you are artistic, if you"
" are visual, if you are interested in film &hellip; [then] there is a lot "
"you can start to do on this medium. [It] can now amplify and honor these "
"multiple forms of intelligence.</quote>"
msgstr ""

#.  PAGE BREAK 60
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2652
msgid ""
"Brown is talking about what Elizabeth Daley, Stephanie Barish, and Just "
"Think! teach: that this tinkering with culture teaches as well as creates. "
"It develops talents differently, and it builds a different kind of "
"recognition."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2660
msgid ""
"Yet the freedom to tinker with these objects is not guaranteed.  Indeed, as "
"we'll see through the course of this book, that freedom is increasingly "
"highly contested. While there's no doubt that your father had the right to "
"tinker with the car engine, there's great doubt that your child will have "
"the right to tinker with the images she finds all around.  The law and, "
"increasingly, technology interfere with a freedom that technology, and "
"curiosity, would otherwise ensure."
msgstr ""

#.  f22
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2676
msgid ""
"See, for example, Edward Felten and Andrew Appel, <quote>Technological "
"Access Control Interferes with Noninfringing Scholarship,</quote> "
"<citetitle>Communications of the Association for Computer "
"Machinery</citetitle> 43 (2000): 9."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2669
msgid ""
"These restrictions have become the focus of researchers and scholars.  "
"Professor Ed Felten of Princeton (whom we'll see more of in chapter <xref "
"xrefstyle=\"select: labelnumber\" linkend=\"property-i\"/>)  has developed a"
" powerful argument in favor of the <quote>right to tinker</quote> as it "
"applies to computer science and to knowledge in general.<placeholder "
"type=\"footnote\" id=\"0\"/> But Brown's concern is earlier, or younger, or "
"more fundamental. It is about the learning that kids can do, or can't do, "
"because of the law."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2684
msgid ""
"<quote>This is where education in the twenty-first century is going,</quote>"
" Brown explains. We need to <quote>understand how kids who grow up digital "
"think and want to learn.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2689
msgid ""
"<quote>Yet,</quote> as Brown continued, and as the balance of this book will"
" evince, <quote>we are building a legal system that completely suppresses "
"the natural tendencies of today's digital kids. &hellip; We're building an "
"architecture that unleashes 60 percent of the brain [and] a legal system "
"that closes down that part of the brain.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2697
msgid ""
"We're building a technology that takes the magic of Kodak, mixes moving "
"images and sound, and adds a space for commentary and an opportunity to "
"spread that creativity everywhere. But we're building the law to close down "
"that technology."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2703
msgid ""
"<quote>No way to run a culture,</quote> as Brewster Kahle, whom we'll meet "
"in chapter <xref xrefstyle=\"select: labelnumber\" linkend=\"collectors\"/>,"
" quipped to me in a rare moment of despondence."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:2710
msgid "CHAPTER THREE: Catalogs"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:2711 freeculture.xml:2754 freeculture.xml:9609
msgid "Jordan, Jesse"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2712
msgid "RPI"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2712 freeculture.xml:2713 freeculture.xml:2714
msgid "Rensselaer Polytechnic Institute (RPI)"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:2714
msgid "computer network search engine of"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2715
msgid "search engines"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2716
msgid "university computer networks, p2p sharing on"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:2717
msgid "search engines used on"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2719
msgid ""
"<emphasis role='strong'>In the fall</emphasis> of 2002, Jesse Jordan of "
"Oceanside, New York, enrolled as a freshman at Rensselaer Polytechnic "
"Institute, in Troy, New York.  His major at RPI was information technology. "
"Though he is not a programmer, in October Jesse decided to begin to tinker "
"with search engine technology that was available on the RPI network."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2727
msgid ""
"RPI is one of America's foremost technological research institutions.  It "
"offers degrees in fields ranging from architecture and engineering to "
"information sciences. More than 65 percent of its five thousand "
"undergraduates finished in the top 10 percent of their high school class. "
"The school is thus a perfect mix of talent and experience to imagine and "
"then build, a generation for the network age."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2735
msgid ""
"RPI's computer network links students, faculty, and administration to one "
"another. It also links RPI to the Internet. Not everything available on the "
"RPI network is available on the Internet. But the network is designed to "
"enable students to get access to the Internet, as well as more intimate "
"access to other members of the RPI community."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2741 freeculture.xml:2796
msgid "Google"
msgstr ""

#.  PAGE BREAK 62
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2743
msgid ""
"Search engines are a measure of a network's intimacy. Google brought the "
"Internet much closer to all of us by fantastically improving the quality of "
"search on the network. Specialty search engines can do this even better. The"
" idea of <quote>intranet</quote> search engines, search engines that search "
"within the network of a particular institution, is to provide users of that "
"institution with better access to material from that institution.  "
"Businesses do this all the time, enabling employees to have access to "
"material that people outside the business can't get. Universities do it as "
"well."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:2755 freeculture.xml:3672 freeculture.xml:3674
#: freeculture.xml:3675 freeculture.xml:5494 freeculture.xml:8181
#: freeculture.xml:13524 freeculture.xml:13593
msgid "Microsoft"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:2755
msgid "network file system of"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2757
msgid ""
"These engines are enabled by the network technology itself.  Microsoft, for "
"example, has a network file system that makes it very easy for search "
"engines tuned to that network to query the system for information about the "
"publicly (within that network) available content.  Jesse's search engine was"
" built to take advantage of this technology. It used Microsoft's network "
"file system to build an index of all the files available within the RPI "
"network."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2767
msgid ""
"Jesse's wasn't the first search engine built for the RPI network.  Indeed, "
"his engine was a simple modification of engines that others had built. His "
"single most important improvement over those engines was to fix a bug within"
" the Microsoft file-sharing system that could cause a user's computer to "
"crash. With the engines that existed before, if you tried to access a file "
"through a Windows browser that was on a computer that was off-line, your "
"computer could crash. Jesse modified the system a bit to fix that problem, "
"by adding a button that a user could click to see if the machine holding the"
" file was still on-line."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2780
msgid ""
"Jesse's engine went on-line in late October. Over the following six months, "
"he continued to tweak it to improve its functionality. By March, the system "
"was functioning quite well. Jesse had more than one million files in his "
"directory, including every type of content that might be on users' "
"computers."
msgstr ""

#.  PAGE BREAK 63
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2788
msgid ""
"Thus the index his search engine produced included pictures, which students "
"could use to put on their own Web sites; copies of notes or research; copies"
" of information pamphlets; movie clips that students might have created; "
"university brochures&mdash;basically anything that users of the RPI network "
"made available in a public folder of their computer."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:2797
msgid "tinkering as means of"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2799
msgid ""
"But the index also included music files. In fact, one quarter of the files "
"that Jesse's search engine listed were music files. But that means, of "
"course, that three quarters were not, and&mdash;so that this point is "
"absolutely clear&mdash;Jesse did nothing to induce people to put music files"
" in their public folders. He did nothing to target the search engine to "
"these files. He was a kid tinkering with a Google-like technology at a "
"university where he was studying information science, and hence, tinkering "
"was the aim. Unlike Google, or Microsoft, for that matter, he made no money "
"from this tinkering; he was not connected to any business that would make "
"any money from this experiment. He was a kid tinkering with technology in an"
" environment where tinkering with technology was precisely what he was "
"supposed to do."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:2813 freeculture.xml:9607 freeculture.xml:9884
msgid "in recording industry"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:2814
msgid "against student file sharing"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:2815 freeculture.xml:2913 freeculture.xml:3166
#: freeculture.xml:3295 freeculture.xml:4248 freeculture.xml:4249
#: freeculture.xml:4250 freeculture.xml:9885 freeculture.xml:10296
#: freeculture.xml:10297 freeculture.xml:10298 freeculture.xml:10454
msgid "recording industry"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:2815 freeculture.xml:9885
msgid "copyright infringement lawsuits of"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:2816 freeculture.xml:2845 freeculture.xml:2914
#: freeculture.xml:9886 freeculture.xml:10299 freeculture.xml:10300
#: freeculture.xml:10452
msgid "Recording Industry Association of America (RIAA)"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:2816 freeculture.xml:9886
msgid "copyright infringement lawsuits filed by"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2819
msgid ""
"On April 3, 2003, Jesse was contacted by the dean of students at RPI. The "
"dean informed Jesse that the Recording Industry Association of America, the "
"RIAA, would be filing a lawsuit against him and three other students whom he"
" didn't even know, two of them at other universities.  A few hours later, "
"Jesse was served with papers from the suit.  As he read these papers and "
"watched the news reports about them, he was increasingly astonished."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2828
msgid ""
"<quote>It was absurd,</quote> he told me. <quote>I don't think I did "
"anything wrong. &hellip; I don't think there's anything wrong with the "
"search engine that I ran or &hellip; what I had done to it. I mean, I hadn't"
" modified it in any way that promoted or enhanced the work of pirates. I "
"just modified the search engine in a way that would make it easier to "
"use</quote>&mdash;again, a <emphasis>search engine</emphasis>, which Jesse "
"had not himself built, using the Windows filesharing system, which Jesse had"
" not himself built, to enable members of the RPI community to get access to "
"content, which Jesse had not himself created or posted, and the vast "
"majority of which had nothing to do with music."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:2841 freeculture.xml:9606 freeculture.xml:9883
msgid "exaggerated claims of"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:2842
msgid "statutory damages of"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:2843
msgid "individual defendants intimidated by"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2844
msgid "statutory damages"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:2845
msgid "intimidation tactics of"
msgstr ""

#.  PAGE BREAK 64
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2847
msgid ""
"But the RIAA branded Jesse a pirate. They claimed he operated a network and "
"had therefore <quote>willfully</quote> violated copyright laws. They "
"demanded that he pay them the damages for his wrong. For cases of "
"<quote>willful infringement,</quote> the Copyright Act specifies something "
"lawyers call <quote>statutory damages.</quote> These damages permit a "
"copyright owner to claim $150,000 per infringement. As the RIAA alleged more"
" than one hundred specific copyright infringements, they therefore demanded "
"that Jesse pay them at least $15,000,000."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2857
msgid "Michigan Technical University"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2858
msgid "Princeton University"
msgstr ""

#.  f1
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2872
msgid ""
"Tim Goral, <quote>Recording Industry Goes After Campus P-2-P Networks: Suit "
"Alleges $97.8 Billion in Damages,</quote> <citetitle>Professional Media "
"Group LCC</citetitle> 6 (2003): 5, available at 2003 WL 55179443."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2860
msgid ""
"Similar lawsuits were brought against three other students: one other "
"student at RPI, one at Michigan Technical University, and one at Princeton. "
"Their situations were similar to Jesse's. Though each case was different in "
"detail, the bottom line in each was exactly the same: huge demands for "
"<quote>damages</quote> that the RIAA claimed it was entitled to.  If you "
"added up the claims, these four lawsuits were asking courts in the United "
"States to award the plaintiffs close to $100 "
"<emphasis>billion</emphasis>&mdash;six times the <emphasis>total</emphasis> "
"profit of the film industry in 2001.<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2879
msgid ""
"Jesse called his parents. They were supportive but a bit frightened.  An "
"uncle was a lawyer. He began negotiations with the RIAA. They demanded to "
"know how much money Jesse had. Jesse had saved $12,000 from summer jobs and "
"other employment. They demanded $12,000 to dismiss the case."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2885
msgid "Oppenheimer, Matt"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2887
msgid ""
"The RIAA wanted Jesse to admit to doing something wrong. He refused. They "
"wanted him to agree to an injunction that would essentially make it "
"impossible for him to work in many fields of technology for the rest of his "
"life. He refused. They made him understand that this process of being sued "
"was not going to be pleasant. (As Jesse's father recounted to me, the chief "
"lawyer on the case, Matt Oppenheimer, told Jesse, <quote>You don't want to "
"pay another visit to a dentist like me.</quote>) And throughout, the RIAA "
"insisted it would not settle the case until it took every penny Jesse had "
"saved."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:2897
msgid "legal system, attorney costs in"
msgstr ""

#.  PAGE BREAK 65
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2899
msgid ""
"Jesse's family was outraged at these claims. They wanted to fight.  But "
"Jesse's uncle worked to educate the family about the nature of the American "
"legal system. Jesse could fight the RIAA. He might even win. But the cost of"
" fighting a lawsuit like this, Jesse was told, would be at least $250,000. "
"If he won, he would not recover that money. If he won, he would have a piece"
" of paper saying he had won, and a piece of paper saying he and his family "
"were bankrupt."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2909
msgid ""
"So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or "
"$12,000 and a settlement."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:2912 freeculture.xml:3296 freeculture.xml:4241
#: freeculture.xml:5503 freeculture.xml:5552 freeculture.xml:10194
#: freeculture.xml:10292 freeculture.xml:10453 freeculture.xml:10476
#: freeculture.xml:15174 freeculture.xml:15239
msgid "artists"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><secondary>
#: freeculture.xml:2912 freeculture.xml:3296 freeculture.xml:4241
#: freeculture.xml:10194 freeculture.xml:10292 freeculture.xml:10453
#: freeculture.xml:10476 freeculture.xml:15174 freeculture.xml:15239
msgid "recording industry payments to"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:2913 freeculture.xml:4248 freeculture.xml:10296
#: freeculture.xml:10454
msgid "artist remuneration in"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:2914 freeculture.xml:10300
msgid "lobbying power of"
msgstr ""

#.  f2
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2924
msgid ""
"Occupational Employment Survey, U.S. Dept. of Labor (2001)  "
"(27&ndash;2042&mdash;Musicians and Singers). See also National Endowment for"
" the Arts, <citetitle>More Than One in a Blue Moon</citetitle> (2000)."
msgstr ""

#.  f3
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:2932
msgid ""
"Douglas Lichtman makes a related point in <quote>KaZaA and "
"Punishment,</quote> <citetitle>Wall Street Journal</citetitle>, 10 September"
" 2003, A24."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2916
msgid ""
"The recording industry insists this is a matter of law and morality.  Let's "
"put the law aside for a moment and think about the morality.  Where is the "
"morality in a lawsuit like this? What is the virtue in scapegoatism? The "
"RIAA is an extraordinarily powerful lobby. The president of the RIAA is "
"reported to make more than $1 million a year.  Artists, on the other hand, "
"are not well paid. The average recording artist makes $45,900.<placeholder "
"type=\"footnote\" id=\"0\"/> There are plenty of ways for the RIAA to affect"
" and direct policy. So where is the morality in taking money from a student "
"for running a search engine?<placeholder type=\"footnote\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2939
msgid ""
"On June 23, Jesse wired his savings to the lawyer working for the RIAA. The "
"case against him was then dismissed. And with this, this kid who had "
"tinkered a computer into a $15 million lawsuit became an activist:"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:2946
msgid ""
"I was definitely not an activist [before]. I never really meant to be an "
"activist. &hellip; [But] I've been pushed into this. In no way did I ever "
"foresee anything like this, but I think it's just completely absurd what the"
" RIAA has done."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2953
msgid ""
"Jesse's parents betray a certain pride in their reluctant activist. As his "
"father told me, Jesse <quote>considers himself very conservative, and so do "
"I. &hellip; He's not a tree hugger. &hellip; I think it's bizarre that they "
"would pick on him. But he wants to let people know that they're sending the "
"wrong message. And he wants to correct the record.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:2968
msgid "CHAPTER FOUR: <quote>Pirates</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:2969
msgid "in development of content industry"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:2972
msgid ""
"<emphasis role='strong'>If <quote>piracy</quote> means</emphasis> using the "
"creative property of others without their permission&mdash;if <quote>if "
"value, then right</quote> is true&mdash;then the history of the content "
"industry is a history of piracy. Every important sector of <quote>big "
"media</quote> today&mdash;film, records, radio, and cable TV&mdash;was born "
"of a kind of piracy so defined. The consistent story is how last "
"generation's pirates join this generation's country club&mdash;until now."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:2983
msgid "Film"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:2987
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> I am grateful to Peter DiMauro "
"for pointing me to this extraordinary history. See also Siva Vaidhyanathan, "
"<citetitle>Copyrights and Copywrongs</citetitle>, 87&ndash;93, which details"
" Edison's <quote>adventures</quote> with copyright and patent."
msgstr ""

#.  PAGE BREAK 67
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:2985
msgid ""
"The film industry of Hollywood was built by fleeing pirates.<placeholder "
"type=\"footnote\" id=\"0\"/> Creators and directors migrated from the East "
"Coast to California in the early twentieth century in part to escape "
"controls that patents granted the inventor of filmmaking, Thomas Edison. "
"These controls were exercised through a monopoly <quote>trust,</quote> the "
"Motion Pictures Patents Company, and were based on Thomas Edison's creative "
"property&mdash;patents.  Edison formed the MPPC to exercise the rights this "
"creative property gave him, and the MPPC was serious about the control it "
"demanded."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3003
msgid "As one commentator tells one part of the story,"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:3007
msgid ""
"A January 1909 deadline was set for all companies to comply with the "
"license. By February, unlicensed outlaws, who referred to themselves as "
"independents protested the trust and carried on business without submitting "
"to the Edison monopoly. In the summer of 1909 the independent movement was "
"in full-swing, with producers and theater owners using illegal equipment and"
" imported film stock to create their own underground market."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><blockquote><indexterm><primary>
#: freeculture.xml:3015
msgid "Fox, William"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><blockquote><indexterm><primary>
#: freeculture.xml:3016
msgid "General Film Company"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:3017 freeculture.xml:3314 freeculture.xml:4475
#: freeculture.xml:10342
msgid "Picker, Randal C."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:3041 freeculture.xml:4474 freeculture.xml:10062
#: freeculture.xml:10175
msgid "broadcast flag"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:3030
msgid ""
"J. A. Aberdeen, <citetitle>Hollywood Renegades: The Society of Independent "
"Motion Picture Producers</citetitle> (Cobblestone Entertainment, 2000) and "
"expanded texts posted at <quote>The Edison Movie Monopoly: The Motion "
"Picture Patents Company vs. the Independent Outlaws,</quote> available at "
"<ulink url=\"http://free-culture.cc/notes/\">link #11</ulink>. For a "
"discussion of the economic motive behind both these limits and the limits "
"imposed by Victor on phonographs, see Randal C. Picker, <quote>From Edison "
"to the Broadcast Flag: Mechanisms of Consent and Refusal and the "
"Propertization of Copyright</quote> (September 2002), University of Chicago "
"Law School, James M. Olin Program in Law and Economics, Working Paper No. "
"159.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:3019
msgid ""
"With the country experiencing a tremendous expansion in the number of "
"nickelodeons, the Patents Company reacted to the independent movement by "
"forming a strong-arm subsidiary known as the General Film Company to block "
"the entry of non-licensed independents. With coercive tactics that have "
"become legendary, General Film confiscated unlicensed equipment, "
"discontinued product supply to theaters which showed unlicensed films, and "
"effectively monopolized distribution with the acquisition of all U.S. film "
"exchanges, except for the one owned by the independent William Fox who "
"defied the Trust even after his license was revoked.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  f3
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3052
msgid ""
"Marc Wanamaker, <quote>The First Studios,</quote> <citetitle>The Silents "
"Majority</citetitle>, archived at <ulink url=\"http://free-"
"culture.cc/notes/\">link #12</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3046
msgid ""
"The Napsters of those days, the <quote>independents,</quote> were companies "
"like Fox. And no less than today, these independents were vigorously "
"resisted.  <quote>Shooting was disrupted by machinery stolen, and "
"`accidents' resulting in loss of negatives, equipment, buildings and "
"sometimes life and limb frequently occurred.</quote><placeholder "
"type=\"footnote\" id=\"0\"/> That led the independents to flee the East "
"Coast. California was remote enough from Edison's reach that filmmakers "
"there could pirate his inventions without fear of the law. And the leaders "
"of Hollywood filmmaking, Fox most prominently, did just that."
msgstr ""

#.  PAGE BREAK 68
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3062
msgid ""
"Of course, California grew quickly, and the effective enforcement of federal"
" law eventually spread west. But because patents grant the patent holder a "
"truly <quote>limited</quote> monopoly (just seventeen years at that time), "
"by the time enough federal marshals appeared, the patents had expired. A new"
" industry had been born, in part from the piracy of Edison's creative "
"property."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:3073
msgid "Recorded Music"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:3074 freeculture.xml:4245
msgid "on music recordings"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3076
msgid ""
"The record industry was born of another kind of piracy, though to see how "
"requires a bit of detail about the way the law regulates music."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:3079
msgid "Fourneaux, Henri"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:3080
msgid "Russel, Phil"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3082
msgid ""
"At the time that Edison and Henri Fourneaux invented machines for "
"reproducing music (Edison the phonograph, Fourneaux the player piano), the "
"law gave composers the exclusive right to control copies of their music and "
"the exclusive right to control public performances of their music. In other "
"words, in 1900, if I wanted a copy of Phil Russel's 1899 hit <quote>Happy "
"Mose,</quote> the law said I would have to pay for the right to get a copy "
"of the musical score, and I would also have to pay for the right to perform "
"it publicly."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:3091 freeculture.xml:3229
msgid "Beatles"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3093
msgid ""
"But what if I wanted to record <quote>Happy Mose,</quote> using Edison's "
"phonograph or Fourneaux's player piano? Here the law stumbled. It was clear "
"enough that I would have to buy any copy of the musical score that I "
"performed in making this recording. And it was clear enough that I would "
"have to pay for any public performance of the work I was recording.  But it "
"wasn't totally clear that I would have to pay for a <quote>public "
"performance</quote> if I recorded the song in my own house (even today, you "
"don't owe the Beatles anything if you sing their songs in the shower), or if"
" I recorded the song from memory (copies in your brain are "
"not&mdash;yet&mdash; regulated by copyright law). So if I simply sang the "
"song into a recording device in the privacy of my own home, it wasn't clear "
"that I owed the composer anything. And more importantly, it wasn't clear "
"whether I owed the composer anything if I then made copies of those "
"recordings.  Because of this gap in the law, then, I could effectively "
"pirate someone else's song without paying its composer anything."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><blockquote><para><footnote><para><indexterm><primary>
#: freeculture.xml:3116 freeculture.xml:3133
msgid "Kittredge, Alfred"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3112
msgid ""
"The composers (and publishers) were none too happy about this capacity to "
"pirate. As South Dakota senator Alfred Kittredge put it, <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:3127
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright: Hearings on S. 6330 "
"and H.R. 19853 Before the (Joint) Committees on Patents, 59th Cong. 59, 1st "
"sess. (1906) (statement of Senator Alfred B. Kittredge, of South Dakota, "
"chairman), reprinted in <citetitle>Legislative History of the Copyright "
"Act</citetitle>, E. Fulton Brylawski and Abe Goldman, eds. (South "
"Hackensack, N.J.: Rothman Reprints, 1976).  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:3120
msgid ""
"Imagine the injustice of the thing. A composer writes a song or an opera. A "
"publisher buys at great expense the rights to the same and copyrights it. "
"Along come the phonographic companies and companies who cut music rolls and "
"deliberately steal the work of the brain of the composer and publisher "
"without any regard for [their] rights.<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:3137
msgid "Sousa, John Philip"
msgstr ""

#.  f5
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3143
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright, 223 (statement of "
"Nathan Burkan, attorney for the Music Publishers Association)."
msgstr ""

#.  f6
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3149
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright, 226 (statement of "
"Nathan Burkan, attorney for the Music Publishers Association)."
msgstr ""

#.  f7
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3156
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of "
"John Philip Sousa, composer)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3139
msgid ""
"The innovators who developed the technology to record other people's works "
"were <quote>sponging upon the toil, the work, the talent, and genius of "
"American composers,</quote><placeholder type=\"footnote\" id=\"0\"/> and the"
" <quote>music publishing industry</quote> was thereby <quote>at the complete"
" mercy of this one pirate.</quote><placeholder type=\"footnote\" id=\"1\"/> "
"As John Philip Sousa put it, in as direct a way as possible, <quote>When "
"they make money out of my pieces, I want a share of it.</quote><placeholder "
"type=\"footnote\" id=\"2\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:3160
msgid "American Graphophone Company"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:3161
msgid "player pianos"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:3163 freeculture.xml:3164 freeculture.xml:4243
#: freeculture.xml:4244 freeculture.xml:4327 freeculture.xml:4328
#: freeculture.xml:6951 freeculture.xml:7040 freeculture.xml:7154
#: freeculture.xml:7155 freeculture.xml:10293 freeculture.xml:10294
#: freeculture.xml:10295 freeculture.xml:11073 freeculture.xml:11134
#: freeculture.xml:12071
msgid "Congress, U.S."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:3163 freeculture.xml:4243 freeculture.xml:4327
#: freeculture.xml:7040 freeculture.xml:7154 freeculture.xml:10293
msgid "on copyright laws"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:3164 freeculture.xml:4244 freeculture.xml:10295
msgid "on recording industry"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:3165 freeculture.xml:4246 freeculture.xml:10121
msgid "statutory licenses in"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:3166
msgid "statutory license system in"
msgstr ""

#.  f8
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3176
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright, 283&ndash;84 "
"(statement of Albert Walker, representative of the Auto-Music Perforating "
"Company of New York)."
msgstr ""

#.  f9
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3187
msgid ""
"To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared "
"memorandum of Philip Mauro, general patent counsel of the American "
"Graphophone Company Association)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3168
msgid ""
"These arguments have familiar echoes in the wars of our day. So, too, do the"
" arguments on the other side. The innovators who developed the player piano "
"argued that <quote>it is perfectly demonstrable that the introduction of "
"automatic music players has not deprived any composer of anything he had "
"before their introduction.</quote> Rather, the machines increased the sales "
"of sheet music.<placeholder type=\"footnote\" id=\"0\"/> In any case, the "
"innovators argued, the job of Congress was <quote>to consider first the "
"interest of [the public], whom they represent, and whose servants they "
"are.</quote> <quote>All talk about `theft,'</quote> the general counsel of "
"the American Graphophone Company wrote, <quote>is the merest claptrap, for "
"there exists no property in ideas musical, literary or artistic, except as "
"defined by statute.</quote><placeholder type=\"footnote\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:3192
msgid "cover songs"
msgstr ""

#.  PAGE BREAK 70
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3194
msgid ""
"The law soon resolved this battle in favor of the composer "
"<emphasis>and</emphasis> the recording artist. Congress amended the law to "
"make sure that composers would be paid for the <quote>mechanical "
"reproductions</quote> of their music. But rather than simply granting the "
"composer complete control over the right to make mechanical reproductions, "
"Congress gave recording artists a right to record the music, at a price set "
"by Congress, once the composer allowed it to be recorded once. This is the "
"part of copyright law that makes cover songs possible. Once a composer "
"authorizes a recording of his song, others are free to record the same song,"
" so long as they pay the original composer a fee set by the law."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:3208
msgid "compulsory license"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:3209 freeculture.xml:4251 freeculture.xml:10120
msgid "statutory licenses"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3211
msgid ""
"American law ordinarily calls this a <quote>compulsory license,</quote> but "
"I will refer to it as a <quote>statutory license.</quote> A statutory "
"license is a license whose key terms are set by law. After Congress's "
"amendment of the Copyright Act in 1909, record companies were free to "
"distribute copies of recordings so long as they paid the composer (or "
"copyright holder)  the fee set by the statute."
msgstr ""

#. type: Content of:
#. <book><chapter><section><section><para><indexterm><primary>
#: freeculture.xml:3218 freeculture.xml:14870
msgid "Grisham, John"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3220
msgid ""
"This is an exception within the law of copyright. When John Grisham writes a"
" novel, a publisher is free to publish that novel only if Grisham gives the "
"publisher permission. Grisham, in turn, is free to charge whatever he wants "
"for that permission. The price to publish Grisham is thus set by Grisham, "
"and copyright law ordinarily says you have no permission to use Grisham's "
"work except with permission of Grisham."
msgstr ""

#.  f10
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3245
msgid ""
"Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and H.R. "
"11794 Before the (Joint) Committee on Patents, 60th Cong., 1st sess., 217 "
"(1908) (statement of Senator Reed Smoot, chairman), reprinted in "
"<citetitle>Legislative History of the 1909 Copyright Act</citetitle>, E. "
"Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman "
"Reprints, 1976)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3231
msgid ""
"But the law governing recordings gives recording artists less. And thus, in "
"effect, the law <emphasis>subsidizes</emphasis> the recording industry "
"through a kind of piracy&mdash;by giving recording artists a weaker right "
"than it otherwise gives creative authors. The Beatles have less control over"
" their creative work than Grisham does. And the beneficiaries of this less "
"control are the recording industry and the public. The recording industry "
"gets something of value for less than it otherwise would pay; the public "
"gets access to a much wider range of musical creativity. Indeed, Congress "
"was quite explicit about its reasons for granting this right. Its fear was "
"the monopoly power of rights holders, and that that power would stifle "
"follow-on creativity.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3256
msgid ""
"While the recording industry has been quite coy about this recently, "
"historically it has been quite a supporter of the statutory license for "
"records. As a 1967 report from the House Committee on the Judiciary relates,"
msgstr ""

#.  f11
#. type: Content of:
#. <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:3278
msgid ""
"Copyright Law Revision: Report to Accompany H.R. 2512, House Committee on "
"the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8 March 1967)."
" I am grateful to Glenn Brown for drawing my attention to this report."
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:3263
msgid ""
"the record producers argued vigorously that the compulsory license system "
"must be retained. They asserted that the record industry is a half-billion-"
"dollar business of great economic importance in the United States and "
"throughout the world; records today are the principal means of disseminating"
" music, and this creates special problems, since performers need unhampered "
"access to musical material on nondiscriminatory terms. Historically, the "
"record producers pointed out, there were no recording rights before 1909 and"
" the 1909 statute adopted the compulsory license as a deliberate anti-"
"monopoly condition on the grant of these rights. They argue that the result "
"has been an outpouring of recorded music, with the public being given lower "
"prices, improved quality, and a greater choice.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3289
msgid ""
"By limiting the rights musicians have, by partially pirating their creative "
"work, the record producers, and the public, benefit."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:3294 freeculture.xml:4439
msgid "Radio"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:3295 freeculture.xml:4250 freeculture.xml:10297
msgid "radio broadcast and"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3298
msgid "Radio was also born of piracy."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:3313
msgid "Hand, Learned"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3304
msgid ""
"See 17 <citetitle>United States Code</citetitle>, sections 106 and 110. At "
"the beginning, record companies printed <quote>Not Licensed for Radio "
"Broadcast</quote> and other messages purporting to restrict the ability to "
"play a record on a radio station.  Judge Learned Hand rejected the argument "
"that a warning attached to a record might restrict the rights of the radio "
"station. See <citetitle>RCA Manufacturing Co</citetitle>. v. "
"<citetitle>Whiteman</citetitle>, 114 F. 2d 86 (2nd Cir. 1940). See also "
"Randal C.  Picker, <quote>From Edison to the Broadcast Flag: Mechanisms of "
"Consent and Refusal and the Propertization of Copyright,</quote> "
"<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 281.  "
"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
"id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3301
msgid ""
"When a radio station plays a record on the air, that constitutes a "
"<quote>public performance</quote> of the composer's work.<placeholder "
"type=\"footnote\" id=\"0\"/> As I described above, the law gives the "
"composer (or copyright holder)  an exclusive right to public performances of"
" his work. The radio station thus owes the composer money for that "
"performance."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:3331 freeculture.xml:9363 freeculture.xml:9838
#: freeculture.xml:12919
msgid "Lovett, Lyle"
msgstr ""

#.  PAGE BREAK 72
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3321
msgid ""
"But when the radio station plays a record, it is not only performing a copy "
"of the <emphasis>composer's</emphasis> work. The radio station is also "
"performing a copy of the <emphasis>recording artist's</emphasis> work. It's "
"one thing to have <quote>Happy Birthday</quote> sung on the radio by the "
"local children's choir; it's quite another to have it sung by the Rolling "
"Stones or Lyle Lovett. The recording artist is adding to the value of the "
"composition performed on the radio station.  And if the law were perfectly "
"consistent, the radio station would have to pay the recording artist for his"
" work, just as it pays the composer of the music for his work.  <placeholder"
" type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3336
msgid ""
"But it doesn't. Under the law governing radio performances, the radio "
"station does not have to pay the recording artist. The radio station need "
"only pay the composer. The radio station thus gets a bit of something for "
"nothing. It gets to perform the recording artist's work for free, even if it"
" must pay the composer something for the privilege of playing the song."
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:3343 freeculture.xml:3855 freeculture.xml:6462
#: freeculture.xml:6478
msgid "Madonna"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3345
msgid ""
"This difference can be huge. Imagine you compose a piece of music.  Imagine "
"it is your first. You own the exclusive right to authorize public "
"performances of that music. So if Madonna wants to sing your song in public,"
" she has to get your permission."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3351
msgid ""
"Imagine she does sing your song, and imagine she likes it a lot. She then "
"decides to make a recording of your song, and it becomes a top hit. Under "
"our law, every time a radio station plays your song, you get some money. But"
" Madonna gets nothing, save the indirect effect on the sale of her CDs. The "
"public performance of her recording is not a <quote>protected</quote> right."
" The radio station thus gets to <emphasis>pirate</emphasis> the value of "
"Madonna's work without paying her anything."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3363
msgid ""
"No doubt, one might argue that, on balance, the recording artists benefit. "
"On average, the promotion they get is worth more than the performance rights"
" they give up. Maybe. But even if so, the law ordinarily gives the creator "
"the right to make this choice. By making the choice for him or her, the law "
"gives the radio station the right to take something for nothing."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:3373 freeculture.xml:4445
msgid "Cable TV"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:3374 freeculture.xml:4265 freeculture.xml:8542
#: freeculture.xml:8581 freeculture.xml:15272
msgid "cable television"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3376
msgid "Cable TV was also born of a kind of piracy."
msgstr ""

#.  PAGE BREAK 73
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3379
msgid ""
"When cable entrepreneurs first started wiring communities with cable "
"television in 1948, most refused to pay broadcasters for the content that "
"they echoed to their customers. Even when the cable companies started "
"selling access to television broadcasts, they refused to pay for what they "
"sold. Cable companies were thus Napsterizing broadcasters' content, but more"
" egregiously than anything Napster ever did&mdash; Napster never charged for"
" the content it enabled others to give away."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:3389
msgid "Anello, Douglas"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:3390
msgid "Burdick, Quentin"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:3391 freeculture.xml:3402
msgid "Hyde, Rosel H."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3397
msgid ""
"Copyright Law Revision&mdash;CATV: Hearing on S. 1006 Before the "
"Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee "
"on the Judiciary, 89th Cong., 2nd sess., 78 (1966)  (statement of Rosel H. "
"Hyde, chairman of the Federal Communications Commission).  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#.  f14
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3409
msgid ""
"Copyright Law Revision&mdash;CATV, 116 (statement of Douglas A. Anello, "
"general counsel of the National Association of Broadcasters)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3393
msgid ""
"Broadcasters and copyright owners were quick to attack this theft.  Rosel "
"Hyde, chairman of the FCC, viewed the practice as a kind of <quote>unfair "
"and potentially destructive competition.</quote><placeholder "
"type=\"footnote\" id=\"0\"/> There may have been a <quote>public "
"interest</quote> in spreading the reach of cable TV, but as Douglas Anello, "
"general counsel to the National Association of Broadcasters, asked Senator "
"Quentin Burdick during testimony, <quote>Does public interest dictate that "
"you use somebody else's property?</quote><placeholder type=\"footnote\" "
"id=\"1\"/> As another broadcaster put it,"
msgstr ""

#.  f15
#. type: Content of:
#. <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:3420
msgid ""
"Copyright Law Revision&mdash;CATV, 126 (statement of Ernest W. Jennes, "
"general counsel of the Association of Maximum Service Telecasters, Inc.)."
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:3416
msgid ""
"The extraordinary thing about the CATV business is that it is the only "
"business I know of where the product that is being sold is not paid "
"for.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3426
msgid "Again, the demand of the copyright holders seemed reasonable enough:"
msgstr ""

#.  f16
#. type: Content of:
#. <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:3435
msgid ""
"Copyright Law Revision&mdash;CATV, 169 (joint statement of Arthur B.  Krim, "
"president of United Artists Corp., and John Sinn, president of United "
"Artists Television, Inc.)."
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:3430
msgid ""
"All we are asking for is a very simple thing, that people who now take our "
"property for nothing pay for it. We are trying to stop piracy and I don't "
"think there is any lesser word to describe it. I think there are harsher "
"words which would fit it.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:3441 freeculture.xml:3449
msgid "Heston, Charlton"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3447
msgid ""
"Copyright Law Revision&mdash;CATV, 209 (statement of Charlton Heston, "
"president of the Screen Actors Guild).  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3443
msgid ""
"These were <quote>free-ride[rs],</quote> Screen Actor's Guild president "
"Charlton Heston said, who were <quote>depriving actors of "
"compensation.</quote><placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3454
msgid ""
"But again, there was another side to the debate. As Assistant Attorney "
"General Edwin Zimmerman put it,"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><blockquote><para><indexterm><primary>
#: freeculture.xml:3470 freeculture.xml:3472
msgid "Zimmerman, Edwin"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:3468
msgid ""
"Copyright Law Revision&mdash;CATV, 216 (statement of Edwin M.  Zimmerman, "
"acting assistant attorney general).  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:3459
msgid ""
"Our point here is that unlike the problem of whether you have any copyright "
"protection at all, the problem here is whether copyright holders who are "
"already compensated, who already have a monopoly, should be permitted to "
"extend that monopoly. &hellip; The question here is how much compensation "
"they should have and how far back they should carry their right to "
"compensation.<placeholder type=\"footnote\" id=\"0\"/> <placeholder "
"type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3476
msgid ""
"Copyright owners took the cable companies to court. Twice the Supreme Court "
"held that the cable companies owed the copyright owners nothing."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3480
msgid ""
"It took Congress almost thirty years before it resolved the question of "
"whether cable companies had to pay for the content they "
"<quote>pirated.</quote> In the end, Congress resolved this question in the "
"same way that it resolved the question about record players and player "
"pianos. Yes, cable companies would have to pay for the content that they "
"broadcast; but the price they would have to pay was not set by the copyright"
" owner.  The price was set by law, so that the broadcasters couldn't "
"exercise veto power over the emerging technologies of cable. Cable companies"
" thus built their empire in part upon a <quote>piracy</quote> of the value "
"created by broadcasters' content."
msgstr ""

#.  f19
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3499
msgid ""
"See, for example, National Music Publisher's Association, <citetitle>The "
"Engine of Free Expression: Copyright on the Internet&mdash;The Myth of Free "
"Information</citetitle>, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #13</ulink>. <quote>The threat of piracy&mdash;the "
"use of someone else's creative work without permission or "
"compensation&mdash;has grown with the Internet.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3494
msgid ""
"<emphasis role='strong'>These separate stories</emphasis> sing a common "
"theme. If <quote>piracy</quote> means using value from someone else's "
"creative property without permission from that creator&mdash;as it is "
"increasingly described today<placeholder type=\"footnote\" id=\"0\"/> "
"&mdash; then <emphasis>every</emphasis> industry affected by copyright today"
" is the product and beneficiary of a certain kind of piracy. Film, records, "
"radio, cable TV. &hellip; The list is long and could well be expanded. Every"
" generation welcomes the pirates from the last. Every generation&mdash;until"
" now."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:3516
msgid "CHAPTER FIVE: <quote>Piracy</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:3518
msgid ""
"<emphasis role='strong'>There is piracy</emphasis> of copyrighted material. "
"Lots of it. This piracy comes in many forms. The most significant is "
"commercial piracy, the unauthorized taking of other people's content within "
"a commercial context. Despite the many justifications that are offered in "
"its defense, this taking is wrong. No one should condone it, and the law "
"should stop it."
msgstr ""

#.  PAGE BREAK 76
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:3526
msgid ""
"But as well as copy-shop piracy, there is another kind of "
"<quote>taking</quote> that is more directly related to the Internet. That "
"taking, too, seems wrong to many, and it is wrong much of the time. Before "
"we paint this taking <quote>piracy,</quote> however, we should understand "
"its nature a bit more.  For the harm of this taking is significantly more "
"ambiguous than outright copying, and the law should account for that "
"ambiguity, as it has so often done in the past."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:3536
msgid "Piracy I"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:3537 freeculture.xml:3617 freeculture.xml:3667
#: freeculture.xml:15274
msgid "Asia, commercial piracy in"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:3538 freeculture.xml:3990 freeculture.xml:9839
#: freeculture.xml:10694 freeculture.xml:14665 freeculture.xml:15256
msgid "CDs"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:3538
msgid "foreign piracy of"
msgstr ""

#.  f1
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3546
msgid ""
"See IFPI (International Federation of the Phonographic Industry), "
"<citetitle>The Recording Industry Commercial Piracy Report 2003</citetitle>,"
" July 2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#14</ulink>. See also Ben Hunt, <quote>Companies Warned on Music Piracy "
"Risk,</quote> <citetitle>Financial Times</citetitle>, 14 February 2003, 11."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3540
msgid ""
"All across the world, but especially in Asia and Eastern Europe, there are "
"businesses that do nothing but take others people's copyrighted content, "
"copy it, and sell it&mdash;all without the permission of a copyright owner. "
"The recording industry estimates that it loses about $4.6 billion every year"
" to physical piracy<placeholder type=\"footnote\" id=\"0\"/> (that works out"
" to one in three CDs sold worldwide). The MPAA estimates that it loses $3 "
"billion annually worldwide to piracy."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3556
msgid ""
"This is piracy plain and simple. Nothing in the argument of this book, nor "
"in the argument that most people make when talking about the subject of this"
" book, should draw into doubt this simple point: This piracy is wrong."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3562
msgid ""
"Which is not to say that excuses and justifications couldn't be made for it."
" We could, for example, remind ourselves that for the first one hundred "
"years of the American Republic, America did not honor foreign copyrights. We"
" were born, in this sense, a pirate nation. It might therefore seem "
"hypocritical for us to insist so strongly that other developing nations "
"treat as wrong what we, for the first hundred years of our existence, "
"treated as right."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3571
msgid ""
"That excuse isn't terribly strong. Technically, our law did not ban the "
"taking of foreign works. It explicitly limited itself to American works. "
"Thus the American publishers who published foreign works without the "
"permission of foreign authors were not violating any rule.  The copy shops "
"in Asia, by contrast, are violating Asian law. Asian law does protect "
"foreign copyrights, and the actions of the copy shops violate that law. So "
"the wrong of piracy that they engage in is not just a moral wrong, but a "
"legal wrong, and not just an internationally legal wrong, but a locally "
"legal wrong as well."
msgstr ""

#.  PAGE BREAK 77
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3582
msgid ""
"True, these local rules have, in effect, been imposed upon these countries. "
"No country can be part of the world economy and choose not to protect "
"copyright internationally. We may have been born a pirate nation, but we "
"will not allow any other nation to have a similar childhood."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:3610
msgid "agricultural patents"
msgstr ""

#. type: Content of: <book><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:3611 freeculture.xml:13211 freeculture.xml:13702
#: freeculture.xml:13709
msgid "Drahos, Peter"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3595
msgid ""
"See Peter Drahos with John Braithwaite, Information Feudalism: "
"<citetitle>Who Owns the Knowledge Economy?</citetitle> (New York: The New "
"Press, 2003), 10&ndash;13, 209.  The Trade-Related Aspects of Intellectual "
"Property Rights (TRIPS) agreement obligates member nations to create "
"administrative and enforcement mechanisms for intellectual property rights, "
"a costly proposition for developing countries. Additionally, patent rights "
"may lead to higher prices for staple industries such as agriculture. Critics"
" of TRIPS question the disparity between burdens imposed upon developing "
"countries and benefits conferred to industrialized nations. TRIPS does "
"permit governments to use patents for public, noncommercial uses without "
"first obtaining the patent holder's permission. Developing nations may be "
"able to use this to gain the benefits of foreign patents at lower prices. "
"This is a promising strategy for developing nations within the TRIPS "
"framework.  <placeholder type=\"indexterm\" id=\"0\"/> <placeholder "
"type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3590
msgid ""
"If a country is to be treated as a sovereign, however, then its laws are its"
" laws regardless of their source. The international law under which these "
"nations live gives them some opportunities to escape the burden of "
"intellectual property law.<placeholder type=\"footnote\" id=\"0\"/> In my "
"view, more developing nations should take advantage of that opportunity, but"
" when they don't, then their laws should be respected. And under the laws of"
" these nations, this piracy is wrong."
msgstr ""

#. type: Content of:
#. <book><chapter><section><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:3632 freeculture.xml:3911 freeculture.xml:15422
msgid "Liebowitz, Stan"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3625
msgid ""
"For an analysis of the economic impact of copying technology, see Stan "
"Liebowitz, <citetitle>Rethinking the Network Economy</citetitle> (New York: "
"Amacom, 2002), 144&ndash;90. <quote>In some instances &hellip; the impact of"
" piracy on the copyright holder's ability to appropriate the value of the "
"work will be negligible. One obvious instance is the case where the "
"individual engaging in pirating would not have purchased an original even if"
" pirating were not an option.</quote> Ibid., 149.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3619
msgid ""
"Alternatively, we could try to excuse this piracy by noting that in any "
"case, it does no harm to the industry. The Chinese who get access to "
"American CDs at 50 cents a copy are not people who would have bought those "
"American CDs at $15 a copy. So no one really has any less money than they "
"otherwise would have had.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3636
msgid ""
"This is often true (though I have friends who have purchased many thousands "
"of pirated DVDs who certainly have enough money to pay for the content they "
"have taken), and it does mitigate to some degree the harm caused by such "
"taking. Extremists in this debate love to say, <quote>You wouldn't go into "
"Barnes &amp; Noble and take a book off of the shelf without paying; why "
"should it be any different with on-line music?</quote> The difference is, of"
" course, that when you take a book from Barnes &amp; Noble, it has one less "
"book to sell. By contrast, when you take an MP3 from a computer network, "
"there is not one less CD that can be sold.  The physics of piracy of the "
"intangible are different from the physics of piracy of the tangible."
msgstr ""

#.  PAGE BREAK 78
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3650
msgid ""
"This argument is still very weak. However, although copyright is a property "
"right of a very special sort, it <emphasis>is</emphasis> a property right. "
"Like all property rights, the copyright gives the owner the right to decide "
"the terms under which content is shared. If the copyright owner doesn't want"
" to sell, she doesn't have to. There are exceptions: important statutory "
"licenses that apply to copyrighted content regardless of the wish of the "
"copyright owner. Those licenses give people the right to <quote>take</quote>"
" copyrighted content whether or not the copyright owner wants to sell. But "
"where the law does not give people the right to take content, it is wrong to"
" take that content even if the wrong does no harm. If we have a property "
"system, and that system is properly balanced to the technology of a time, "
"then it is wrong to take property without the permission of a property "
"owner. That is exactly what <quote>property</quote> means."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><secondary>
#: freeculture.xml:3668 freeculture.xml:15275
msgid "in Asia"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:3669 freeculture.xml:13522 freeculture.xml:14108
msgid "free software/open-source software (FS/OSS)"
msgstr ""

#. type: Content of:
#. <book><chapter><section><section><para><indexterm><primary>
#: freeculture.xml:3670 freeculture.xml:3700 freeculture.xml:12003
#: freeculture.xml:13537 freeculture.xml:14164
msgid "GNU/Linux operating system"
msgstr ""

#. type: Content of:
#. <book><chapter><section><section><para><indexterm><primary>
#: freeculture.xml:3671 freeculture.xml:3701 freeculture.xml:12005
#: freeculture.xml:13538 freeculture.xml:14165
msgid "Linux operating system"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:3672
msgid "competitive strategies of"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:3673
msgid "Windows"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:3674
msgid "international software piracy of"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:3675
msgid "Windows operating system of"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3677
msgid ""
"Finally, we could try to excuse this piracy with the argument that the "
"piracy actually helps the copyright owner. When the Chinese "
"<quote>steal</quote> Windows, that makes the Chinese dependent on Microsoft."
"  Microsoft loses the value of the software that was taken. But it gains "
"users who are used to life in the Microsoft world. Over time, as the nation "
"grows more wealthy, more and more people will buy software rather than steal"
" it. And hence over time, because that buying will benefit Microsoft, "
"Microsoft benefits from the piracy. If instead of pirating Microsoft "
"Windows, the Chinese used the free GNU/Linux operating system, then these "
"Chinese users would not eventually be buying Microsoft.  Without piracy, "
"then, Microsoft would lose."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:3689 freeculture.xml:4732 freeculture.xml:4956
#: freeculture.xml:6446 freeculture.xml:6522 freeculture.xml:6657
#: freeculture.xml:7069 freeculture.xml:14196
msgid "law"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><secondary>
#: freeculture.xml:3689 freeculture.xml:14196
msgid "databases of case reports in"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3691
msgid ""
"This argument, too, is somewhat true. The addiction strategy is a good one. "
"Many businesses practice it. Some thrive because of it. Law students, for "
"example, are given free access to the two largest legal databases. The "
"companies marketing both hope the students will become so used to their "
"service that they will want to use it and not the other when they become "
"lawyers (and must pay high subscription fees)."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:3698
msgid "Netscape"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:3699
msgid "Internet Explorer"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3703
msgid ""
"Still, the argument is not terribly persuasive. We don't give the alcoholic "
"a defense when he steals his first beer, merely because that will make it "
"more likely that he will buy the next three. Instead, we ordinarily allow "
"businesses to decide for themselves when it is best to give their product "
"away. If Microsoft fears the competition of GNU/Linux, then Microsoft can "
"give its product away, as it did, for example, with Internet Explorer to "
"fight Netscape. A property right means giving the property owner the right "
"to say who gets access to what&mdash;at least ordinarily. And if the law "
"properly balances the rights of the copyright owner with the rights of "
"access, then violating the law is still wrong."
msgstr ""

#.  PAGE BREAK 79
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3717
msgid ""
"Thus, while I understand the pull of these justifications for piracy, and I "
"certainly see the motivation, in my view, in the end, these efforts at "
"justifying commercial piracy simply don't cut it. This kind of piracy is "
"rampant and just plain wrong. It doesn't transform the content it steals; it"
" doesn't transform the market it competes in. It merely gives someone access"
" to something that the law says he should not have.  Nothing has changed to "
"draw that law into doubt. This form of piracy is flat out wrong."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3727
msgid ""
"But as the examples from the four chapters that introduced this part "
"suggest, even if some piracy is plainly wrong, not all <quote>piracy</quote>"
" is. Or at least, not all <quote>piracy</quote> is wrong if that term is "
"understood in the way it is increasingly used today. Many kinds of "
"<quote>piracy</quote> are useful and productive, to produce either new "
"content or new ways of doing business.  Neither our tradition nor any "
"tradition has ever banned all <quote>piracy</quote> in that sense of the "
"term."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3736
msgid ""
"This doesn't mean that there are no questions raised by the latest piracy "
"concern, peer-to-peer file sharing. But it does mean that we need to "
"understand the harm in peer-to-peer sharing a bit more before we condemn it "
"to the gallows with the charge of piracy."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3742
msgid ""
"For (1) like the original Hollywood, p2p sharing escapes an overly "
"controlling industry; and (2) like the original recording industry, it "
"simply exploits a new way to distribute content; but (3) unlike cable TV, no"
" one is selling the content that is shared on p2p services."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3748
msgid ""
"These differences distinguish p2p sharing from true piracy. They should push"
" us to find a way to protect artists while enabling this sharing to survive."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:3754
msgid "Piracy II"
msgstr ""

#.  f4
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3759
msgid ""
"<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 Eng. Rep. "
"1274 (1777)."
msgstr ""

#.  PAGE BREAK 80
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3756
msgid ""
"The key to the <quote>piracy</quote> that the law aims to quash is a use "
"that <quote>rob[s] the author of [his] profit.</quote><placeholder "
"type=\"footnote\" id=\"0\"/> This means we must determine whether and how "
"much p2p sharing harms before we know how strongly the law should seek to "
"either prevent it or find an alternative to assure the author of his profit."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:3768
msgid "Fanning, Shawn"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:3769 freeculture.xml:3776 freeculture.xml:9769
msgid "innovation"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:3786 freeculture.xml:8775
msgid "Christensen, Clayton M."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3776
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> See Clayton M. Christensen, "
"<citetitle>The Innovator's Dilemma: The Revolutionary National Bestseller "
"That Changed the Way We Do Business</citetitle> (New York: HarperBusiness, "
"2000). Professor Christensen examines why companies that give rise to and "
"dominate a product area are frequently unable to come up with the most "
"creative, paradigm-shifting uses for their own products.  This job usually "
"falls to outside innovators, who reassemble existing technology in inventive"
" ways. For a discussion of Christensen's ideas, see Lawrence Lessig, "
"<citetitle>Future</citetitle>, 89&ndash;92, 139.  <placeholder "
"type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3768
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
"id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> Peer-to-peer sharing "
"was made famous by Napster. But the inventors of the Napster technology had "
"not made any major technological innovations.  Like every great advance in "
"innovation on the Internet (and, arguably, off the Internet as "
"well<placeholder type=\"footnote\" id=\"3\"/>), Shawn Fanning and crew had "
"simply put together components that had been developed independently."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:3791
msgid "Kazaa"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><indexterm><secondary>
#: freeculture.xml:3792
msgid "number of registrations on"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><indexterm><secondary>
#: freeculture.xml:3793
msgid "replacement of"
msgstr ""

#.  f6
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3799
msgid ""
"See Carolyn Lochhead, <quote>Silicon Valley Dream, Hollywood "
"Nightmare,</quote> <citetitle>San Francisco Chronicle</citetitle>, 24 "
"September 2002, A1; <quote>Rock 'n' Roll Suicide,</quote> <citetitle>New "
"Scientist</citetitle>, 6 July 2002, 42; Benny Evangelista, <quote>Napster "
"Names CEO, Secures New Financing,</quote> <citetitle>San Francisco "
"Chronicle</citetitle>, 23 May 2003, C1; <quote>Napster's Wake-Up "
"Call,</quote> <citetitle>Economist</citetitle>, 24 June 2000, 23; John "
"Naughton, <quote>Hollywood at War with the Internet</quote> (London) "
"<citetitle>Times</citetitle>, 26 July 2002, 18."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3791
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
"id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> The result was "
"spontaneous combustion. Launched in July 1999, Napster amassed over 10 "
"million users within nine months. After eighteen months, there were close to"
" 80 million registered users of the system.<placeholder type=\"footnote\" "
"id=\"3\"/> Courts quickly shut Napster down, but other services emerged to "
"take its place. (Kazaa is currently the most popular p2p service. It boasts "
"over 100 million members.) These services' systems are different "
"architecturally, though not very different in function: Each enables users "
"to make content available to any number of other users. With a p2p system, "
"you can share your favorite songs with your best friend&mdash; or your "
"20,000 best friends."
msgstr ""

#.  f7
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3822
msgid ""
"See Ipsos-Insight, <citetitle>TEMPO: Keeping Pace with Online Music "
"Distribution</citetitle> (September 2002), reporting that 28 percent of "
"Americans aged twelve and older have downloaded music off of the Internet "
"and 30 percent have listened to digital music files stored on their "
"computers."
msgstr ""

#.  f8
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3831
msgid ""
"Amy Harmon, <quote>Industry Offers a Carrot in Online Music Fight,</quote> "
"<citetitle>New York Times</citetitle>, 6 June 2003, A1."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3816
msgid ""
"According to a number of estimates, a huge proportion of Americans have "
"tasted file-sharing technology. A study by Ipsos-Insight in September 2002 "
"estimated that 60 million Americans had downloaded music&mdash;28 percent of"
" Americans older than 12.<placeholder type=\"footnote\" id=\"0\"/> A survey "
"by the NPD group quoted in <citetitle>The New York Times</citetitle> "
"estimated that 43 million citizens used file-sharing networks to exchange "
"content in May 2003.<placeholder type=\"footnote\" id=\"1\"/> The vast "
"majority of these are not kids. Whatever the actual figure, a massive "
"quantity of content is being <quote>taken</quote> on these networks. The "
"ease and inexpensiveness of file-sharing networks have inspired millions to "
"enjoy music in a way that they hadn't before."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3840
msgid ""
"Some of this enjoying involves copyright infringement. Some of it does not. "
"And even among the part that is technically copyright infringement, "
"calculating the actual harm to copyright owners is more complicated than one"
" might think. So consider&mdash;a bit more carefully than the polarized "
"voices around this debate usually do&mdash;the kinds of sharing that file "
"sharing enables, and the kinds of harm it entails."
msgstr ""

#.  PAGE BREAK 81
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3850
msgid ""
"File sharers share different kinds of content. We can divide these different"
" kinds into four types."
msgstr ""

#.  A.
#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:3858
msgid ""
"There are some who use sharing networks as substitutes for purchasing "
"content. Thus, when a new Madonna CD is released, rather than buying the CD,"
" these users simply take it. We might quibble about whether everyone who "
"takes it would actually have bought it if sharing didn't make it available "
"for free. Most probably wouldn't have, but clearly there are some who would."
"  The latter are the target of category A: users who download instead of "
"purchasing."
msgstr ""

#.  B.
#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:3868
msgid ""
"There are some who use sharing networks to sample music before purchasing "
"it. Thus, a friend sends another friend an MP3 of an artist he's not heard "
"of. The other friend then buys CDs by that artist. This is a kind of "
"targeted advertising, quite likely to succeed.  If the friend recommending "
"the album gains nothing from a bad recommendation, then one could expect "
"that the recommendations will actually be quite good. The net effect of this"
" sharing could increase the quantity of music purchased."
msgstr ""

#.  C.
#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:3879
msgid ""
"There are many who use sharing networks to get access to copyrighted content"
" that is no longer sold or that they would not have purchased because the "
"transaction costs off the Net are too high. This use of sharing networks is "
"among the most rewarding for many. Songs that were part of your childhood "
"but have long vanished from the marketplace magically appear again on the "
"network. (One friend told me that when she discovered Napster, she spent a "
"solid weekend <quote>recalling</quote> old songs. She was astonished at the "
"range and mix of content that was available.)  For content not sold, this is"
" still technically a violation of copyright, though because the copyright "
"owner is not selling the content anymore, the economic harm is "
"zero&mdash;the same harm that occurs when I sell my collection of 1960s "
"45-rpm records to a local collector."
msgstr ""

#.  PAGE BREAK 82
#.  D.
#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:3896
msgid ""
"Finally, there are many who use sharing networks to get access to content "
"that is not copyrighted or that the copyright owner wants to give away."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3902
msgid "How do these different types of sharing balance out?"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3910
msgid ""
"See Liebowitz, <citetitle>Rethinking the Network Economy</citetitle>, "
"148&ndash;49.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3905
msgid ""
"Let's start with some simple but important points. From the perspective of "
"the law, only type D sharing is clearly legal. From the perspective of "
"economics, only type A sharing is clearly harmful.<placeholder "
"type=\"footnote\" id=\"0\"/> Type B sharing is illegal but plainly "
"beneficial. Type C sharing is illegal, yet good for society (since more "
"exposure to music is good)  and harmless to the artist (since the work is "
"not otherwise available). So how sharing matters on balance is a hard "
"question to answer&mdash;and certainly much more difficult than the current "
"rhetoric around the issue suggests."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3921
msgid ""
"Whether on balance sharing is harmful depends importantly on how harmful "
"type A sharing is. Just as Edison complained about Hollywood, composers "
"complained about piano rolls, recording artists complained about radio, and "
"broadcasters complained about cable TV, the music industry complains that "
"type A sharing is a kind of <quote>theft</quote> that is "
"<quote>devastating</quote> the industry."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:3928 freeculture.xml:3937 freeculture.xml:4297
#: freeculture.xml:8341 freeculture.xml:8370 freeculture.xml:10118
#: freeculture.xml:14982
msgid "cassette recording"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:3928 freeculture.xml:4297 freeculture.xml:8341
#: freeculture.xml:8370 freeculture.xml:10118 freeculture.xml:10119
#: freeculture.xml:14982 freeculture.xml:14983
msgid "VCRs"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3937
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> See Cap Gemini Ernst &amp; Young,"
" <citetitle>Technology Evolution and the Music Industry's Business Model "
"Crisis</citetitle> (2003), 3. This report describes the music industry's "
"effort to stigmatize the budding practice of cassette taping in the 1970s, "
"including an advertising campaign featuring a cassette-shape skull and the "
"caption <quote>Home taping is killing music.</quote> At the time digital "
"audio tape became a threat, the Office of Technical Assessment conducted a "
"survey of consumer behavior. In 1988, 40 percent of consumers older than ten"
" had taped music to a cassette format. U.S.  Congress, Office of Technology "
"Assessment, <citetitle>Copyright and Home Copying: Technology Challenges the"
" Law</citetitle>, OTA-CIT-422 (Washington, D.C.: U.S.  Government Printing "
"Office, October 1989), 145&ndash;56."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3930
msgid ""
"While the numbers do suggest that sharing is harmful, how harmful is harder "
"to reckon. It has long been the recording industry's practice to blame "
"technology for any drop in sales. The history of cassette recording is a "
"good example. As a study by Cap Gemini Ernst &amp; Young put it, "
"<quote>Rather than exploiting this new, popular technology, the labels "
"fought it.</quote><placeholder type=\"footnote\" id=\"0\"/> The labels "
"claimed that every album taped was an album unsold, and when record sales "
"fell by 11.4 percent in 1981, the industry claimed that its point was "
"proved. Technology was the problem, and banning or regulating technology was"
" the answer."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:3955
msgid "MTV"
msgstr ""

#.  f11
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:3965
msgid "U.S. Congress, <citetitle>Copyright and Home Copying</citetitle>, 4."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3957
msgid ""
"Yet soon thereafter, and before Congress was given an opportunity to enact "
"regulation, MTV was launched, and the industry had a record turnaround. "
"<quote>In the end,</quote> Cap Gemini concludes, <quote>the `crisis' "
"&hellip; was not the fault of the tapers&mdash;who did not [stop after MTV "
"came into being]&mdash;but had to a large extent resulted from stagnation in"
" musical innovation at the major labels.</quote><placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3970
msgid ""
"But just because the industry was wrong before does not mean it is wrong "
"today. To evaluate the real threat that p2p sharing presents to the industry"
" in particular, and society in general&mdash;or at least the society that "
"inherits the tradition that gave us the film industry, the record industry, "
"the radio industry, cable TV, and the VCR&mdash;the question is not simply "
"whether type A sharing is harmful. The question is also "
"<emphasis>how</emphasis> harmful type A sharing is, and how beneficial the "
"other types of sharing are."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3980
msgid ""
"We start to answer this question by focusing on the net harm, from the "
"standpoint of the industry as a whole, that sharing networks cause.  The "
"<quote>net harm</quote> to the industry as a whole is the amount by which "
"type A sharing exceeds type B. If the record companies sold more records "
"through sampling than they lost through substitution, then sharing networks "
"would actually benefit music companies on balance. They would therefore have"
" little <emphasis>static</emphasis> reason to resist them."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:3990
msgid "sales levels of"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3992
msgid ""
"Could that be true? Could the industry as a whole be gaining because of file"
" sharing? Odd as that might sound, the data about CD sales actually suggest "
"it might be close."
msgstr ""

#.  f12
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4001
msgid ""
"See Recording Industry Association of America, <citetitle>2002 Yearend "
"Statistics</citetitle>, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #15</ulink>. A later report indicates even greater "
"losses. See Recording Industry Association of America, <citetitle>Some Facts"
" About Music Piracy</citetitle>, 25 June 2003, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #16</ulink>: <quote>In the past "
"four years, unit shipments of recorded music have fallen by 26 percent from "
"1.16 billion units in to 860 million units in 2002 in the United States "
"(based on units shipped).  In terms of sales, revenues are down 14 percent, "
"from $14.6 billion in to $12.6 billion last year (based on U.S. dollar value"
" of shipments). The music industry worldwide has gone from a $39 billion "
"industry in 2000 down to a $32 billion industry in 2002 (based on U.S. "
"dollar value of shipments).</quote>"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:4028
msgid "Black, Jane"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4025
msgid ""
"Jane Black, <quote>Big Music's Broken Record,</quote> BusinessWeek online, "
"13 February 2003, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #17</ulink>.  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:3997
msgid ""
"In 2002, the RIAA reported that CD sales had fallen by 8.9 percent, from 882"
" million to 803 million units; revenues fell 6.7 percent.<placeholder "
"type=\"footnote\" id=\"0\"/> This confirms a trend over the past few years. "
"The RIAA blames Internet piracy for the trend, though there are many other "
"causes that could account for this drop. SoundScan, for example, reports a "
"more than 20 percent drop in the number of CDs released since 1999. That no "
"doubt accounts for some of the decrease in sales. Rising prices could "
"account for at least some of the loss. <quote>From 1999 to 2001, the average"
" price of a CD rose 7.2 percent, from $13.04 to $14.19.</quote><placeholder "
"type=\"footnote\" id=\"1\"/> Competition from other forms of media could "
"also account for some of the decline. As Jane Black of "
"<citetitle>BusinessWeek</citetitle> notes, <quote>The soundtrack to the film"
" <citetitle>High Fidelity</citetitle> has a list price of $18.98. You could "
"get the whole movie [on DVD] for $19.99.</quote><placeholder "
"type=\"footnote\" id=\"2\"/>"
msgstr ""

#.  PAGE BREAK 84
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4043
msgid ""
"But let's assume the RIAA is right, and all of the decline in CD sales is "
"because of Internet sharing. Here's the rub: In the same period that the "
"RIAA estimates that 803 million CDs were sold, the RIAA estimates that 2.1 "
"billion CDs were downloaded for free. Thus, although 2.6 times the total "
"number of CDs sold were downloaded for free, sales revenue fell by just 6.7 "
"percent."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4051
msgid ""
"There are too many different things happening at the same time to explain "
"these numbers definitively, but one conclusion is unavoidable: The recording"
" industry constantly asks, <quote>What's the difference between downloading "
"a song and stealing a CD?</quote>&mdash;but their own numbers reveal the "
"difference. If I steal a CD, then there is one less CD to sell. Every taking"
" is a lost sale. But on the basis of the numbers the RIAA provides, it is "
"absolutely clear that the same is not true of downloads. If every download "
"were a lost sale&mdash;if every use of Kazaa <quote>rob[bed] the author of "
"[his] profit</quote>&mdash;then the industry would have suffered a 100 "
"percent drop in sales last year, not a 7 percent drop. If 2.6 times the "
"number of CDs sold were downloaded for free, and yet sales revenue dropped "
"by just 6.7 percent, then there is a huge difference between "
"<quote>downloading a song and stealing a CD.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4067
msgid ""
"These are the harms&mdash;alleged and perhaps exaggerated but, let's assume,"
" real. What of the benefits? File sharing may impose costs on the recording "
"industry. What value does it produce in addition to these costs?"
msgstr ""

#.  f15
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4079
msgid ""
"By one estimate, 75 percent of the music released by the major labels is no "
"longer in print. See Online Entertainment and Copyright Law&mdash;Coming "
"Soon to a Digital Device Near You: Hearing Before the Senate Committee on "
"the Judiciary, 107th Cong., 1st sess. (3 April 2001) (prepared statement of "
"the Future of Music Coalition), available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #18</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4073
msgid ""
"One benefit is type C sharing&mdash;making available content that is "
"technically still under copyright but is no longer commercially available.  "
"This is not a small category of content. There are millions of tracks that "
"are no longer commercially available.<placeholder type=\"footnote\" "
"id=\"0\"/> And while it's conceivable that some of this content is not "
"available because the artist producing the content doesn't want it to be "
"made available, the vast majority of it is unavailable solely because the "
"publisher or the distributor has decided it no longer makes economic sense "
"<emphasis>to the company</emphasis> to make it available."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:4092 freeculture.xml:4100 freeculture.xml:4121
#: freeculture.xml:4145 freeculture.xml:4656 freeculture.xml:6116
#: freeculture.xml:6121 freeculture.xml:6173 freeculture.xml:7140
#: freeculture.xml:7141 freeculture.xml:7527 freeculture.xml:7601
#: freeculture.xml:7885 freeculture.xml:14368 freeculture.xml:15094
#: freeculture.xml:15095
msgid "books"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><secondary>
#: freeculture.xml:4092 freeculture.xml:4100 freeculture.xml:7140
#: freeculture.xml:15095
msgid "resales of"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4100
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> While there are not good "
"estimates of the number of used record stores in existence, in 2002, there "
"were 7,198 used book dealers in the United States, an increase of 20 percent"
" since 1993. See Book Hunter Press, <citetitle>The Quiet Revolution: The "
"Expansion of the Used Book Market</citetitle> (2002), available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #19</ulink>. Used records "
"accounted for $260 million in sales in 2002. See National Association of "
"Recording Merchandisers, <quote>2002 Annual Survey Results,</quote> "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #20</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4094
msgid ""
"In real space&mdash;long before the Internet&mdash;the market had a simple "
"response to this problem: used book and record stores. There are thousands "
"of used book and used record stores in America today.<placeholder "
"type=\"footnote\" id=\"0\"/> These stores buy content from owners, then sell"
" the content they buy. And under American copyright law, when they buy and "
"sell this content, <emphasis>even if the content is still under "
"copyright</emphasis>, the copyright owner doesn't get a dime. Used book and "
"record stores are commercial entities; their owners make money from the "
"content they sell; but as with cable companies before statutory licensing, "
"they don't have to pay the copyright owner for the content they sell."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><secondary>
#: freeculture.xml:4121 freeculture.xml:6116 freeculture.xml:6121
#: freeculture.xml:7141 freeculture.xml:15094
msgid "out of print"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:4122
msgid "Bernstein, Leonard"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:4123 freeculture.xml:7602
msgid "books on"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4125
msgid ""
"Type C sharing, then, is very much like used book stores or used record "
"stores. It is different, of course, because the person making the content "
"available isn't making money from making the content available.  It is also "
"different, of course, because in real space, when I sell a record, I don't "
"have it anymore, while in cyberspace, when someone shares my 1949 recording "
"of Bernstein's <quote>Two Love Songs,</quote> I still have it. That "
"difference would matter economically if the owner of the copyright were "
"selling the record in competition to my sharing. But we're talking about the"
" class of content that is not currently commercially available. The Internet"
" is making it available, through cooperative sharing, without competing with"
" the market."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4138
msgid ""
"It may well be, all things considered, that it would be better if the "
"copyright owner got something from this trade. But just because it may well "
"be better, it doesn't follow that it would be good to ban used book stores. "
"Or put differently, if you think that type C sharing should be stopped, do "
"you think that libraries and used book stores should be shut as well?"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><secondary>
#: freeculture.xml:4145 freeculture.xml:14368
msgid "free on-line releases of"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:4146
msgid "Doctorow, Cory"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:4147
msgid "Down and Out in the Magic Kingdom (Doctorow)"
msgstr ""

#.  PAGE BREAK 86
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4149
msgid ""
"Finally, and perhaps most importantly, file-sharing networks enable type D "
"sharing to occur&mdash;the sharing of content that copyright owners want to "
"have shared or for which there is no continuing copyright. This sharing "
"clearly benefits authors and society. Science fiction author Cory Doctorow, "
"for example, released his first novel, <citetitle>Down and Out in the Magic "
"Kingdom</citetitle>, both free on-line and in bookstores on the same day. "
"His (and his publisher's) thinking was that the on-line distribution would "
"be a great advertisement for the <quote>real</quote> book. People would read"
" part on-line, and then decide whether they liked the book or not. If they "
"liked it, they would be more likely to buy it. Doctorow's content is type D "
"content. If sharing networks enable his work to be spread, then both he and "
"society are better off. (Actually, much better off: It is a great book!)"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4167
msgid ""
"Likewise for work in the public domain: This sharing benefits society with "
"no legal harm to authors at all. If efforts to solve the problem of type A "
"sharing destroy the opportunity for type D sharing, then we lose something "
"important in order to protect type A content."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4173
msgid ""
"The point throughout is this: While the recording industry understandably "
"says, <quote>This is how much we've lost,</quote> we must also ask, "
"<quote>How much has society gained from p2p sharing? What are the "
"efficiencies? What is the content that otherwise would be "
"unavailable?</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4181
msgid ""
"For unlike the piracy I described in the first section of this chapter, much"
" of the <quote>piracy</quote> that file sharing enables is plainly legal and"
" good.  And like the piracy I described in chapter <xref xrefstyle=\"select:"
" labelnumber\" linkend=\"pirates\"/>, much of this piracy is motivated by a "
"new way of spreading content caused by changes in the technology of "
"distribution. Thus, consistent with the tradition that gave us Hollywood, "
"radio, the recording industry, and cable TV, the question we should be "
"asking about file sharing is how best to preserve its benefits while "
"minimizing (to the extent possible) the wrongful harm it causes artists. The"
" question is one of balance. The law should seek that balance, and that "
"balance will be found only with time."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4195
msgid ""
"<quote>But isn't the war just a war against illegal sharing? Isn't the "
"target just what you call type A sharing?</quote>"
msgstr ""

#.  f17
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4211
msgid ""
"See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34- 35"
" (N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183 MHP, available "
"at <ulink url=\"http://free-culture.cc/notes/\">link #21</ulink>. For an "
"account of the litigation and its toll on Napster, see Joseph Menn, "
"<citetitle>All the Rave: The Rise and Fall of Shawn Fanning's "
"Napster</citetitle> (New York: Crown Business, 2003), 269&ndash;82."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4199
msgid ""
"You would think. And we should hope. But so far, it is not. The effect of "
"the war purportedly on type A sharing alone has been felt far beyond that "
"one class of sharing. That much is obvious from the Napster case itself. "
"When Napster told the district court that it had developed a technology to "
"block the transfer of 99.4 percent of identified infringing material, the "
"district court told counsel for Napster 99.4 percent was not good enough. "
"Napster had to push the infringements <quote>down to "
"zero.</quote><placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4222
msgid ""
"If 99.4 percent is not good enough, then this is a war on file-sharing "
"technologies, not a war on copyright infringement. There is no way to assure"
" that a p2p system is used 100 percent of the time in compliance with the "
"law, any more than there is a way to assure that 100 percent of VCRs or 100 "
"percent of Xerox machines or 100 percent of handguns are used in compliance "
"with the law. Zero tolerance means zero p2p.  The court's ruling means that "
"we as a society must lose the benefits of p2p, even for the totally legal "
"and beneficial uses they serve, simply to assure that there are zero "
"copyright infringements caused by p2p."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4233
msgid ""
"Zero tolerance has not been our history. It has not produced the content "
"industry that we know today. The history of American law has been a process "
"of balance. As new technologies changed the way content was distributed, the"
" law adjusted, after some time, to the new technology.  In this adjustment, "
"the law sought to ensure the legitimate rights of creators while protecting "
"innovation. Sometimes this has meant more rights for creators. Sometimes "
"less."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:4242
msgid "composers, copyright protections of"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:4247
msgid "music recordings played on"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:4249
msgid "copyright protections in"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:4252
msgid "composer's rights vs. producers' rights in"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4254
msgid ""
"So, as we've seen, when <quote>mechanical reproduction</quote> threatened "
"the interests of composers, Congress balanced the rights of composers "
"against the interests of the recording industry. It granted rights to "
"composers, but also to the recording artists: Composers were to be paid, but"
" at a price set by Congress. But when radio started broadcasting the "
"recordings made by these recording artists, and they complained to Congress "
"that their <quote>creative property</quote> was not being respected (since "
"the radio station did not have to pay them for the creativity it broadcast),"
" Congress rejected their claim. An indirect benefit was enough."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4267
msgid ""
"Cable TV followed the pattern of record albums. When the courts rejected the"
" claim that cable broadcasters had to pay for the content they rebroadcast, "
"Congress responded by giving broadcasters a right to compensation, but at a "
"level set by the law. It likewise gave cable companies the right to the "
"content, so long as they paid the statutory price."
msgstr ""

#.  PAGE BREAK 88
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4278
msgid ""
"This compromise, like the compromise affecting records and player pianos, "
"served two important goals&mdash;indeed, the two central goals of any "
"copyright legislation. First, the law assured that new innovators would have"
" the freedom to develop new ways to deliver content.  Second, the law "
"assured that copyright holders would be paid for the content that was "
"distributed. One fear was that if Congress simply required cable TV to pay "
"copyright holders whatever they demanded for their content, then copyright "
"holders associated with broadcasters would use their power to stifle this "
"new technology, cable. But if Congress had permitted cable to use "
"broadcasters' content for free, then it would have unfairly subsidized "
"cable. Thus Congress chose a path that would assure "
"<emphasis>compensation</emphasis> without giving the past (broadcasters) "
"control over the future (cable)."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:4296
msgid "Betamax"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4299
msgid ""
"In the same year that Congress struck this balance, two major producers and "
"distributors of film content filed a lawsuit against another technology, the"
" video tape recorder (VTR, or as we refer to them today, VCRs) that Sony had"
" produced, the Betamax. Disney's and Universal's claim against Sony was "
"relatively simple: Sony produced a device, Disney and Universal claimed, "
"that enabled consumers to engage in copyright infringement. Because the "
"device that Sony built had a <quote>record</quote> button, the device could "
"be used to record copyrighted movies and shows. Sony was therefore "
"benefiting from the copyright infringement of its customers. It should "
"therefore, Disney and Universal claimed, be partially liable for that "
"infringement."
msgstr ""

#.  PAGE BREAK 89
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4313
msgid ""
"There was something to Disney's and Universal's claim. Sony did decide to "
"design its machine to make it very simple to record television shows. It "
"could have built the machine to block or inhibit any direct copying from a "
"television broadcast. Or possibly, it could have built the machine to copy "
"only if there were a special <quote>copy me</quote> signal on the line. It "
"was clear that there were many television shows that did not grant anyone "
"permission to copy. Indeed, if anyone had asked, no doubt the majority of "
"shows would not have authorized copying. And in the face of this obvious "
"preference, Sony could have designed its system to minimize the opportunity "
"for copyright infringement. It did not, and for that, Disney and Universal "
"wanted to hold it responsible for the architecture it chose."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:4328
msgid "on VCR technology"
msgstr ""

#.  f18
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4337
msgid ""
"Copyright Infringements (Audio and Video Recorders): Hearing on S. 1758 "
"Before the Senate Committee on the Judiciary, 97th Cong., 1st and 2nd sess.,"
" 459 (1982) (testimony of Jack Valenti, president, Motion Picture "
"Association of America, Inc.)."
msgstr ""

#.  f19
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4349
msgid "Copyright Infringements (Audio and Video Recorders), 475."
msgstr ""

#.  f20
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4354
msgid ""
"<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony Corp."
" of America</citetitle>, 480 F. Supp. 429, (C.D. Cal., 1979)."
msgstr ""

#.  f21
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4365
msgid ""
"Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack "
"Valenti)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4330
msgid ""
"MPAA president Jack Valenti became the studios' most vocal champion. Valenti"
" called VCRs <quote>tapeworms.</quote> He warned, <quote>When there are 20, "
"30, 40 million of these VCRs in the land, we will be invaded by millions of "
"`tapeworms,' eating away at the very heart and essence of the most precious "
"asset the copyright owner has, his copyright.</quote><placeholder "
"type=\"footnote\" id=\"0\"/> <quote>One does not have to be trained in "
"sophisticated marketing and creative judgment,</quote> he told Congress, "
"<quote>to understand the devastation on the after-theater marketplace caused"
" by the hundreds of millions of tapings that will adversely impact on the "
"future of the creative community in this country. It is simply a question of"
" basic economics and plain common sense.</quote><placeholder "
"type=\"footnote\" id=\"1\"/> Indeed, as surveys would later show, 45 percent"
" of VCR owners had movie libraries of ten videos or more<placeholder "
"type=\"footnote\" id=\"2\"/> &mdash; a use the Court would later hold was "
"not <quote>fair.</quote> By <quote>allowing VCR owners to copy freely by the"
" means of an exemption from copyright infringement without creating a "
"mechanism to compensate copyright owners,</quote> Valenti testified, "
"Congress would <quote>take from the owners the very essence of their "
"property: the exclusive right to control who may use their work, that is, "
"who may copy it and thereby profit from its "
"reproduction.</quote><placeholder type=\"footnote\" id=\"3\"/>"
msgstr ""

#.  f22
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4383
msgid ""
"<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony Corp."
" of America</citetitle>, 659 F. 2d 963 (9th Cir.  1981)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><indexterm><primary>
#: freeculture.xml:4386
msgid "Kozinski, Alex"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4371
msgid ""
"It took eight years for this case to be resolved by the Supreme Court. In "
"the interim, the Ninth Circuit Court of Appeals, which includes Hollywood in"
" its jurisdiction&mdash;leading Judge Alex Kozinski, who sits on that court,"
" refers to it as the <quote>Hollywood Circuit</quote>&mdash;held that Sony "
"would be liable for the copyright infringement made possible by its "
"machines. Under the Ninth Circuit's rule, this totally familiar "
"technology&mdash;which Jack Valenti had called <quote>the Boston Strangler "
"of the American film industry</quote> (worse yet, it was a "
"<emphasis>Japanese</emphasis> Boston Strangler of the American film "
"industry)&mdash;was an illegal technology.<placeholder type=\"footnote\" "
"id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#.  PAGE BREAK 90
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4389
msgid ""
"But the Supreme Court reversed the decision of the Ninth Circuit.  And in "
"its reversal, the Court clearly articulated its understanding of when and "
"whether courts should intervene in such disputes. As the Court wrote,"
msgstr ""

#.  f23
#. type: Content of:
#. <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:4408
msgid ""
"<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City "
"Studios, Inc</citetitle>., 464 U.S. 417, 431 (1984)."
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:4398
msgid ""
"Sound policy, as well as history, supports our consistent deference to "
"Congress when major technological innovations alter the market for "
"copyrighted materials. Congress has the constitutional authority and the "
"institutional ability to accommodate fully the varied permutations of "
"competing interests that are inevitably implicated by such new "
"technology.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4414
msgid ""
"Congress was asked to respond to the Supreme Court's decision.  But as with "
"the plea of recording artists about radio broadcasts, Congress ignored the "
"request. Congress was convinced that American film got enough, this "
"<quote>taking</quote> notwithstanding.  If we put these cases together, a "
"pattern is clear:"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
#: freeculture.xml:4425
msgid "CASE"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
#: freeculture.xml:4426
msgid "WHOSE VALUE WAS <quote>PIRATED</quote>"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
#: freeculture.xml:4427
msgid "RESPONSE OF THE COURTS"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
#: freeculture.xml:4428
msgid "RESPONSE OF CONGRESS"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4433
msgid "Recordings"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4434
msgid "Composers"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4435 freeculture.xml:4447 freeculture.xml:4453
msgid "No protection"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4436 freeculture.xml:4448
msgid "Statutory license"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4440
msgid "Recording artists"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4441
msgid "N/A"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4442 freeculture.xml:4454
msgid "Nothing"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4446
msgid "Broadcasters"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4451
msgid "VCR"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:4452
msgid "Film creators"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4464
msgid ""
"These are the most important instances in our history, but there are other "
"cases as well. The technology of digital audio tape (DAT), for example, was "
"regulated by Congress to minimize the risk of piracy. The remedy Congress "
"imposed did burden DAT producers, by taxing tape sales and controlling the "
"technology of DAT. See Audio Home Recording Act of 1992 (Title 17 of the "
"<citetitle>United States Code</citetitle>), Pub. L. No. 102-563, 106 Stat.  "
"4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not "
"eliminate the opportunity for free riding in the sense I've described. See "
"Lessig, <citetitle>Future</citetitle>, 71. See also Picker, <quote>From "
"Edison to the Broadcast Flag,</quote> <citetitle>University of Chicago Law "
"Review</citetitle> 70 (2003): 293&ndash;96.  <placeholder type=\"indexterm\""
" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4461
msgid ""
"In each case throughout our history, a new technology changed the way "
"content was distributed.<placeholder type=\"footnote\" id=\"0\"/> In each "
"case, throughout our history, that change meant that someone got a "
"<quote>free ride</quote> on someone else's work."
msgstr ""

#.  PAGE BREAK 91
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4482
msgid ""
"In <emphasis>none</emphasis> of these cases did either the courts or "
"Congress eliminate all free riding. In <emphasis>none</emphasis> of these "
"cases did the courts or Congress insist that the law should assure that the "
"copyright holder get all the value that his copyright created. In every "
"case, the copyright owners complained of <quote>piracy.</quote> In every "
"case, Congress acted to recognize some of the legitimacy in the behavior of "
"the <quote>pirates.</quote> In each case, Congress allowed some new "
"technology to benefit from content made before. It balanced the interests at"
" stake."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4495
msgid ""
"When you think across these examples, and the other examples that make up "
"the first four chapters of this section, this balance makes sense. Was Walt "
"Disney a pirate? Would doujinshi be better if creators had to ask "
"permission? Should tools that enable others to capture and spread images as "
"a way to cultivate or criticize our culture be better regulated? Is it "
"really right that building a search engine should expose you to $15 million "
"in damages? Would it have been better if Edison had controlled film? Should "
"every cover band have to hire a lawyer to get permission to record a song?"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:4506
msgid "on balance of interests in copyright law"
msgstr ""

#.  f25
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4513
msgid ""
"<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City "
"Studios, Inc</citetitle>., 464 U.S. 417, (1984)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4508
msgid ""
"We could answer yes to each of these questions, but our tradition has "
"answered no. In our tradition, as the Supreme Court has stated, copyright "
"<quote>has never accorded the copyright owner complete control over all "
"possible uses of his work.</quote><placeholder type=\"footnote\" id=\"0\"/> "
"Instead, the particular uses that the law regulates have been defined by "
"balancing the good that comes from granting an exclusive right against the "
"burdens such an exclusive right creates. And this balancing has historically"
" been done <emphasis>after</emphasis> a technology has matured, or settled "
"into the mix of technologies that facilitate the distribution of content."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4524
msgid ""
"We should be doing the same thing today. The technology of the Internet is "
"changing quickly. The way people connect to the Internet (wires vs. "
"wireless) is changing very quickly. No doubt the network should not become a"
" tool for <quote>stealing</quote> from artists. But neither should the law "
"become a tool to entrench one particular way in which artists (or more "
"accurately, distributors) get paid. As I describe in some detail in the last"
" chapter of this book, we should be securing income to artists while we "
"allow the market to secure the most efficient way to promote and distribute "
"content. This will require changes in the law, at least in the interim. "
"These changes should be designed to balance the protection of the law "
"against the strong public interest that innovation continue."
msgstr ""

#.  f26
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:4548
msgid ""
"John Schwartz, <quote>New Economy: The Attack on Peer-to-Peer Software "
"Echoes Past Efforts,</quote> <citetitle>New York Times</citetitle>, 22 "
"September 2003, C3."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4540
msgid ""
"This is especially true when a new technology enables a vastly superior mode"
" of distribution. And this p2p has done. P2p technologies can be ideally "
"efficient in moving content across a widely diverse network.  Left to "
"develop, they could make the network vastly more efficient.  Yet these "
"<quote>potential public benefits,</quote> as John Schwartz writes in "
"<citetitle>The New York Times</citetitle>, <quote>could be delayed in the "
"P2P fight.</quote><placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4553
msgid ""
"<emphasis role='strong'>Yet when anyone</emphasis> begins to talk about "
"<quote>balance,</quote> the copyright warriors raise a different argument. "
"<quote>All this hand waving about balance and incentives,</quote> they say, "
"<quote>misses a fundamental point. Our content,</quote> the warriors insist,"
" <quote>is our <emphasis>property</emphasis>. Why should we wait for "
"Congress to `rebalance' our property rights? Do you have to wait before "
"calling the police when your car has been stolen? And why should Congress "
"deliberate at all about the merits of this theft? Do we ask whether the car "
"thief had a good use for the car before we arrest him?</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:4565
msgid ""
"<quote>It is <emphasis>our property</emphasis>,</quote> the warriors insist."
" <quote>And it should be protected just as any other property is "
"protected.</quote>"
msgstr ""

#. type: Content of: <book><part><title>
#: freeculture.xml:4574
msgid "<quote>PROPERTY</quote>"
msgstr ""

#.  PAGE BREAK 94
#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:4579
msgid ""
"<emphasis role='strong'>The copyright warriors</emphasis> are right: A "
"copyright is a kind of property. It can be owned and sold, and the law "
"protects against its theft. Ordinarily, the copyright owner gets to hold out"
" for any price he wants. Markets reckon the supply and demand that partially"
" determine the price she can get."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:4586
msgid ""
"But in ordinary language, to call a copyright a <quote>property</quote> "
"right is a bit misleading, for the property of copyright is an odd kind of "
"property.  Indeed, the very idea of property in any idea or any expression "
"is very odd. I understand what I am taking when I take the picnic table you "
"put in your backyard. I am taking a thing, the picnic table, and after I "
"take it, you don't have it. But what am I taking when I take the good "
"<emphasis>idea</emphasis> you had to put a picnic table in the "
"backyard&mdash;by, for example, going to Sears, buying a table, and putting "
"it in my backyard? What is the thing I am taking then?"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:4597 freeculture.xml:6407 freeculture.xml:14355
msgid "Jefferson, Thomas"
msgstr ""

#.  f1
#. type: Content of: <book><part><partintro><para><footnote><para>
#: freeculture.xml:4612
msgid ""
"Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in "
"<citetitle>The Writings of Thomas Jefferson</citetitle>, vol. 6 (Andrew A. "
"Lipscomb and Albert Ellery Bergh, eds., 1903), 330, 333&ndash;34."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:4599
msgid ""
"The point is not just about the thingness of picnic tables versus ideas, "
"though that's an important difference. The point instead is that in the "
"ordinary case&mdash;indeed, in practically every case except for a narrow "
"range of exceptions&mdash;ideas released to the world are free. I don't take"
" anything from you when I copy the way you dress&mdash;though I might seem "
"weird if I did it every day, and especially weird if you are a woman. "
"Instead, as Thomas Jefferson said (and as is especially true when I copy the"
" way someone else dresses), <quote>He who receives an idea from me, receives"
" instruction himself without lessening mine; as he who lights his taper at "
"mine, receives light without darkening me.</quote><placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><partintro><indexterm><secondary>
#: freeculture.xml:4617
msgid "intangibility of"
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:4619
msgid ""
"The exceptions to free use are ideas and expressions within the reach of the"
" law of patent and copyright, and a few other domains that I won't discuss "
"here. Here the law says you can't take my idea or expression without my "
"permission: The law turns the intangible into property."
msgstr ""

#.  f2
#. type: Content of: <book><part><partintro><para><footnote><para>
#: freeculture.xml:4632
msgid ""
"As the legal realists taught American law, all property rights are "
"intangible.  A property right is simply a right that an individual has "
"against the world to do or not do certain things that may or may not attach "
"to a physical object. The right itself is intangible, even if the object to "
"which it is (metaphorically) attached is tangible. See Adam Mossoff, "
"<quote>What Is Property? Putting the Pieces Back Together,</quote> "
"<citetitle>Arizona Law Review</citetitle> 45 (2003): 373, 429 n. 241."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:4627
msgid ""
"But how, and to what extent, and in what form&mdash;the details, in other "
"words&mdash;matter. To get a good sense of how this practice of turning the "
"intangible into property emerged, we need to place this "
"<quote>property</quote> in its proper context.<placeholder type=\"footnote\""
" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:4642
msgid ""
"My strategy in doing this will be the same as my strategy in the preceding "
"part. I offer four stories to help put the idea of <quote>copyright material"
" is property</quote> in context. Where did the idea come from? What are its "
"limits? How does it function in practice? After these stories, the "
"significance of this true statement&mdash;<quote>copyright material is "
"property</quote>&mdash; will be a bit more clear, and its implications will "
"be revealed as quite different from the implications that the copyright "
"warriors would have us draw."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:4655
msgid "CHAPTER SIX: Founders"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:4656
msgid "English copyright law developed for"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4659
msgid "England, copyright laws developed in"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:4660 freeculture.xml:13896
msgid "United Kingdom"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:4660
msgid "history of copyright law in"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4661 freeculture.xml:4831
msgid "Branagh, Kenneth"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4662
msgid "Henry V"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4664 freeculture.xml:4796
msgid "Romeo and Juliet (Shakespeare)"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4666
msgid ""
"<emphasis role='strong'>William Shakespeare</emphasis> wrote "
"<citetitle>Romeo and Juliet</citetitle> in 1595. The play was first "
"published in 1597. It was the eleventh major play that Shakespeare had "
"written. He would continue to write plays through 1613, and the plays that "
"he wrote have continued to define Anglo-American culture ever since. So "
"deeply have the works of a sixteenth-century writer seeped into our culture "
"that we often don't even recognize their source.  I once overheard someone "
"commenting on Kenneth Branagh's adaptation of Henry V: <quote>I liked it, "
"but Shakespeare is so full of clichés.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4677 freeculture.xml:4761 freeculture.xml:4870
#: freeculture.xml:5003
msgid "Conger"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4678
msgid "Tonson, Jacob"
msgstr ""

#. type: Content of:
#. <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:4684
msgid "Jonson, Ben"
msgstr ""

#. type: Content of:
#. <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:4685
msgid "Dryden, John"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:4684
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
"id=\"1\"/> Jacob Tonson is typically remembered for his associations with "
"prominent eighteenth-century literary figures, especially John Dryden, and "
"for his handsome <quote>definitive editions</quote> of classic works. In "
"addition to <citetitle>Romeo and Juliet</citetitle>, he published an "
"astonishing array of works that still remain at the heart of the English "
"canon, including collected works of Shakespeare, Ben Jonson, John Milton, "
"and John Dryden. See Keith Walker, <quote>Jacob Tonson, Bookseller,</quote> "
"<citetitle>American Scholar</citetitle> 61:3 (1992): 424&ndash;31."
msgstr ""

#.  f2
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:4697
msgid ""
"Lyman Ray Patterson, <citetitle>Copyright in Historical "
"Perspective</citetitle> (Nashville: Vanderbilt University Press, 1968), "
"151&ndash;52."
msgstr ""

#.  PAGE BREAK 97
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4680
msgid ""
"In 1774, almost 180 years after <citetitle>Romeo and Juliet</citetitle> was "
"written, the <quote>copy-right</quote> for the work was still thought by "
"many to be the exclusive right of a single London publisher, Jacob "
"Tonson.<placeholder type=\"footnote\" id=\"0\"/> Tonson was the most "
"prominent of a small group of publishers called the Conger<placeholder "
"type=\"footnote\" id=\"1\"/> who controlled bookselling in England during "
"the eighteenth century. The Conger claimed a perpetual right to control the "
"<quote>copy</quote> of books that they had acquired from authors. That "
"perpetual right meant that no one else could publish copies of a book to "
"which they held the copyright.  Prices of the classics were thus kept high; "
"competition to produce better or cheaper editions was eliminated."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4709 freeculture.xml:4762 freeculture.xml:4902
#: freeculture.xml:5083 freeculture.xml:5239
msgid "British Parliament"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:4711 freeculture.xml:7078
msgid "renewability of"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:4712 freeculture.xml:4764 freeculture.xml:4808
#: freeculture.xml:4915 freeculture.xml:5002 freeculture.xml:7068
msgid "Statute of Anne (1710)"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:4723
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> As Siva Vaidhyanathan nicely "
"argues, it is erroneous to call this a <quote>copyright law.</quote> See "
"Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 40."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4714
msgid ""
"Now, there's something puzzling about the year 1774 to anyone who knows a "
"little about copyright law. The better-known year in the history of "
"copyright is 1710, the year that the British Parliament adopted the first "
"<quote>copyright</quote> act. Known as the Statute of Anne, the act stated "
"that all published works would get a copyright term of fourteen years, "
"renewable once if the author was alive, and that all works already published"
" by 1710 would get a single term of twenty-one additional years.<placeholder"
" type=\"footnote\" id=\"0\"/> Under this law, <citetitle>Romeo and "
"Juliet</citetitle> should have been free in 1731. So why was there any issue"
" about it still being under Tonson's control in 1774?"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:4732 freeculture.xml:4956
msgid "common vs. positive"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4733 freeculture.xml:4957
msgid "positive law"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4734
msgid "Licensing Act (1662)"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4736
msgid ""
"The reason is that the English hadn't yet agreed on what a "
"<quote>copyright</quote> was&mdash;indeed, no one had. At the time the "
"English passed the Statute of Anne, there was no other legislation governing"
" copyrights.  The last law regulating publishers, the Licensing Act of 1662,"
" had expired in 1695. That law gave publishers a monopoly over publishing, "
"as a way to make it easier for the Crown to control what was published.  But"
" after it expired, there was no positive law that said that the publishers, "
"or <quote>Stationers,</quote> had an exclusive right to print books."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4747 freeculture.xml:4955 freeculture.xml:5026
#: freeculture.xml:5126
msgid "common law"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4749
msgid ""
"There was no <emphasis>positive</emphasis> law, but that didn't mean that "
"there was no law. The Anglo-American legal tradition looks to both the words"
" of legislatures and the words of judges to know the rules that are to "
"govern how people are to behave. We call the words from legislatures "
"<quote>positive law.</quote> We call the words from judges <quote>common "
"law.</quote> The common law sets the background against which legislatures "
"legislate; the legislature, ordinarily, can trump that background only if it"
" passes a law to displace it. And so the real question after the licensing "
"statutes had expired was whether the common law protected a copyright, "
"independent of any positive law."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4763 freeculture.xml:4992 freeculture.xml:5100
#: freeculture.xml:5178
msgid "Scottish publishers"
msgstr ""

#.  PAGE BREAK 98
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4766
msgid ""
"This question was important to the publishers, or "
"<quote>booksellers,</quote> as they were called, because there was growing "
"competition from foreign publishers. The Scottish, in particular, were "
"increasingly publishing and exporting books to England. That competition "
"reduced the profits of the Conger, which reacted by demanding that "
"Parliament pass a law to again give them exclusive control over publishing. "
"That demand ultimately resulted in the Statute of Anne."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:4777
msgid "as narrow monopoly right"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4779
msgid ""
"The Statute of Anne granted the author or <quote>proprietor</quote> of a "
"book an exclusive right to print that book. In an important limitation, "
"however, and to the horror of the booksellers, the law gave the bookseller "
"that right for a limited term. At the end of that term, the copyright "
"<quote>expired,</quote> and the work would then be free and could be "
"published by anyone. Or so the legislature is thought to have believed."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4789
msgid ""
"Now, the thing to puzzle about for a moment is this: Why would Parliament "
"limit the exclusive right? Not why would they limit it to the particular "
"limit they set, but why would they limit the right <emphasis>at "
"all?</emphasis>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4798
msgid ""
"For the booksellers, and the authors whom they represented, had a very "
"strong claim. Take <citetitle>Romeo and Juliet</citetitle> as an example: "
"That play was written by Shakespeare. It was his genius that brought it into"
" the world. He didn't take anybody's property when he created this play "
"(that's a controversial claim, but never mind), and by his creating this "
"play, he didn't make it any harder for others to craft a play. So why is it "
"that the law would ever allow someone else to come along and take "
"Shakespeare's play without his, or his estate's, permission? What reason is "
"there to allow someone else to <quote>steal</quote> Shakespeare's work?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4810
msgid ""
"The answer comes in two parts. We first need to see something special about "
"the notion of <quote>copyright</quote> that existed at the time of the "
"Statute of Anne. Second, we have to see something important about "
"<quote>booksellers.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:4815 freeculture.xml:7593 freeculture.xml:7760
msgid "usage restrictions attached to"
msgstr ""

#.  PAGE BREAK 99
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4817
msgid ""
"First, about copyright. In the last three hundred years, we have come to "
"apply the concept of <quote>copyright</quote> ever more broadly. But in "
"1710, it wasn't so much a concept as it was a very particular right. The "
"copyright was born as a very specific set of restrictions: It forbade others"
" from reprinting a book. In 1710, the <quote>copy-right</quote> was a right "
"to use a particular machine to replicate a particular work. It did not go "
"beyond that very narrow right. It did not control any more generally how a "
"work could be <emphasis>used</emphasis>. Today the right includes a large "
"collection of restrictions on the freedom of others: It grants the author "
"the exclusive right to copy, the exclusive right to distribute, the "
"exclusive right to perform, and so on."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4834
msgid ""
"So, for example, even if the copyright to Shakespeare's works were "
"perpetual, all that would have meant under the original meaning of the term "
"was that no one could reprint Shakespeare's work without the permission of "
"the Shakespeare estate. It would not have controlled anything, for example, "
"about how the work could be performed, whether the work could be translated,"
" or whether Kenneth Branagh would be allowed to make his films. The <quote"
">copy-right</quote> was only an exclusive right to print&mdash;no less, of "
"course, but also no more."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4843
msgid "Henry VIII, King of England"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4844
msgid "monopoly, copyright as"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4845
msgid "Statute of Monopolies (1656)"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4847
msgid ""
"Even that limited right was viewed with skepticism by the British.  They had"
" had a long and ugly experience with <quote>exclusive rights,</quote> "
"especially <quote>exclusive rights</quote> granted by the Crown. The English"
" had fought a civil war in part about the Crown's practice of handing out "
"monopolies&mdash;especially monopolies for works that already existed. King "
"Henry VIII granted a patent to print the Bible and a monopoly to Darcy to "
"print playing cards. The English Parliament began to fight back against this"
" power of the Crown. In 1656, it passed the Statute of Monopolies, limiting "
"monopolies to patents for new inventions. And by 1710, Parliament was eager "
"to deal with the growing monopoly in publishing."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4860
msgid ""
"Thus the <quote>copy-right,</quote> when viewed as a monopoly right, was "
"naturally viewed as a right that should be limited. (However convincing the "
"claim that <quote>it's my property, and I should have it forever,</quote> "
"try sounding convincing when uttering, <quote>It's my monopoly, and I should"
" have it forever.</quote>) The state would protect the exclusive right, but "
"only so long as it benefited society. The British saw the harms from "
"specialinterest favors; they passed a law to stop them."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4868 freeculture.xml:5161
msgid "Milton, John"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4869
msgid "booksellers, English"
msgstr ""

#.  f4
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:4888
msgid ""
"Philip Wittenberg, <citetitle>The Protection and Marketing of Literary "
"Property</citetitle> (New York: J. Messner, Inc., 1937), 31."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4873
msgid ""
"Second, about booksellers. It wasn't just that the copyright was a monopoly."
" It was also that it was a monopoly held by the booksellers.  Booksellers "
"sound quaint and harmless to us. They were not viewed as harmless in "
"seventeenth-century England. Members of the Conger were increasingly seen as"
" monopolists of the worst kind&mdash;tools of the Crown's repression, "
"selling the liberty of England to guarantee themselves a monopoly profit. "
"The attacks against these monopolists were harsh: Milton described them as "
"<quote>old patentees and monopolizers in the trade of book-selling</quote>; "
"they were <quote>men who do not therefore labour in an honest profession to "
"which learning is indetted.</quote><placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4892
msgid "Enlightenment"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4893
msgid "knowledge, freedom of"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4895
msgid ""
"Many believed the power the booksellers exercised over the spread of "
"knowledge was harming that spread, just at the time the Enlightenment was "
"teaching the importance of education and knowledge spread generally. The "
"idea that knowledge should be free was a hallmark of the time, and these "
"powerful commercial interests were interfering with that idea."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4904
msgid ""
"To balance this power, Parliament decided to increase competition among "
"booksellers, and the simplest way to do that was to spread the wealth of "
"valuable books. Parliament therefore limited the term of copyrights, and "
"thereby guaranteed that valuable books would become open to any publisher to"
" publish after a limited time. Thus the setting of the term for existing "
"works to just twenty-one years was a compromise to fight the power of the "
"booksellers. The limitation on terms was an indirect way to assure "
"competition among publishers, and thus the construction and spread of "
"culture."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:4917 freeculture.xml:5052 freeculture.xml:5146
#: freeculture.xml:11098
msgid "in perpetuity"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4919
msgid ""
"When 1731 (1710 + 21) came along, however, the booksellers were getting "
"anxious. They saw the consequences of more competition, and like every "
"competitor, they didn't like them. At first booksellers simply ignored the "
"Statute of Anne, continuing to insist on the perpetual right to control "
"publication. But in 1735 and 1737, they tried to persuade Parliament to "
"extend their terms. Twenty-one years was not enough, they said; they needed "
"more time."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4928
msgid ""
"Parliament rejected their requests. As one pamphleteer put it, in words that"
" echo today,"
msgstr ""

#.  f5
#. type: Content of: <book><part><chapter><blockquote><para><footnote><para>
#: freeculture.xml:4943
msgid ""
"A Letter to a Member of Parliament concerning the Bill now depending in the "
"House of Commons, for making more effectual an Act in the Eighth Year of the"
" Reign of Queen Anne, entitled, An Act for the Encouragement of Learning, by"
" Vesting the Copies of Printed Books in the Authors or Purchasers of such "
"Copies, during the Times therein mentioned (London, 1735), in Brief Amici "
"Curiae of Tyler T. Ochoa et al., 8, <citetitle>Eldred</citetitle> v. "
"<citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01-618)."
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:4933
msgid ""
"I see no Reason for granting a further Term now, which will not hold as well"
" for granting it again and again, as often as the Old ones Expire; so that "
"should this Bill pass, it will in Effect be establishing a perpetual "
"Monopoly, a Thing deservedly odious in the Eye of the Law; it will be a "
"great Cramp to Trade, a Discouragement to Learning, no Benefit to the "
"Authors, but a general Tax on the Publick; and all this only to increase the"
" private Gain of the Booksellers.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4959
msgid ""
"Having failed in Parliament, the publishers turned to the courts in a series"
" of cases. Their argument was simple and direct: The Statute of Anne gave "
"authors certain protections through positive law, but those protections were"
" not intended as replacements for the common law.  Instead, they were "
"intended simply to supplement the common law.  Under common law, it was "
"already wrong to take another person's creative <quote>property</quote> and "
"use it without his permission. The Statute of Anne, the booksellers argued, "
"didn't change that. Therefore, just because the protections of the Statute "
"of Anne expired, that didn't mean the protections of the common law expired:"
" Under the common law they had the right to ban the publication of a book, "
"even if its Statute of Anne copyright had expired. This, they argued, was "
"the only way to protect authors."
msgstr ""

#. type: Content of:
#. <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:4981 freeculture.xml:4991 freeculture.xml:5034
msgid "Patterson, Raymond"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:4981
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
"id=\"1\"/> Lyman Ray Patterson, <quote>Free Speech, Copyright, and Fair "
"Use,</quote> <citetitle>Vanderbilt Law Review</citetitle> 40 (1987): 28. For"
" a wonderfully compelling account, see Vaidhyanathan, 37&ndash;48."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4975
msgid ""
"This was a clever argument, and one that had the support of some of the "
"leading jurists of the day. It also displayed extraordinary chutzpah.  Until"
" then, as law professor Raymond Patterson has put it, <quote>The publishers "
"&hellip; had as much concern for authors as a cattle rancher has for "
"cattle.</quote><placeholder type=\"footnote\" id=\"0\"/> The bookseller "
"didn't care squat for the rights of the author.  His concern was the "
"monopoly profit that the author's work gave."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:4990 freeculture.xml:5099
msgid "Donaldson, Alexander"
msgstr ""

#.  f7
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:4998
msgid ""
"For a compelling account, see David Saunders, <citetitle>Authorship and "
"Copyright</citetitle> (London: Routledge, 1992), 62&ndash;69."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:4994
msgid ""
"The booksellers' argument was not accepted without a fight.  The hero of "
"this fight was a Scottish bookseller named Alexander Donaldson.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5004
msgid "Boswell, James"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5005
msgid "Erskine, Andrew"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:5014 freeculture.xml:15518
msgid "Rose, Mark"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:5012
msgid ""
"Mark Rose, <citetitle>Authors and Owners</citetitle> (Cambridge: Harvard "
"University Press, 1993), 92.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#.  f9
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:5023
msgid "Ibid., 93."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5007
msgid ""
"Donaldson was an outsider to the London Conger. He began his career in "
"Edinburgh in 1750. The focus of his business was inexpensive reprints "
"<quote>of standard works whose copyright term had expired,</quote> at least "
"under the Statute of Anne.<placeholder type=\"footnote\" id=\"0\"/> "
"Donaldson's publishing house prospered and became <quote>something of a "
"center for literary Scotsmen.</quote> <quote>[A]mong them,</quote> Professor"
" Mark Rose writes, was <quote>the young James Boswell who, together with his"
" friend Andrew Erskine, published an anthology of contemporary Scottish "
"poems with Donaldson.</quote><placeholder type=\"footnote\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:5034
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> Lyman Ray Patterson, "
"<citetitle>Copyright in Historical Perspective</citetitle>, 167 (quoting "
"Borwell)."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5028
msgid ""
"When the London booksellers tried to shut down Donaldson's shop in Scotland,"
" he responded by moving his shop to London, where he sold inexpensive "
"editions <quote>of the most popular English books, in defiance of the "
"supposed common law right of Literary Property.</quote><placeholder "
"type=\"footnote\" id=\"0\"/> His books undercut the Conger prices by 30 to "
"50 percent, and he rested his right to compete upon the ground that, under "
"the Statute of Anne, the works he was selling had passed out of protection."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5043
msgid "Millar v. Taylor"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5045
msgid ""
"The London booksellers quickly brought suit to block <quote>piracy</quote> "
"like Donaldson's. A number of actions were successful against the "
"<quote>pirates,</quote> the most important early victory being "
"<citetitle>Millar</citetitle> v. <citetitle>Taylor</citetitle>."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5051 freeculture.xml:5105
msgid "Thomson, James"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5053
msgid "Seasons, The (Thomson)"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5054
msgid "Taylor, Robert"
msgstr ""

#.  f11
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:5063
msgid ""
"Howard B. Abrams, <quote>The Historic Foundation of American Copyright Law: "
"Exploding the Myth of Common Law Copyright,</quote> <citetitle>Wayne Law "
"Review</citetitle> 29 (1983): 1152."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5056
msgid ""
"Millar was a bookseller who in 1729 had purchased the rights to James "
"Thomson's poem <quote>The Seasons.</quote> Millar complied with the "
"requirements of the Statute of Anne, and therefore received the full "
"protection of the statute. After the term of copyright ended, Robert Taylor "
"began printing a competing volume. Millar sued, claiming a perpetual common "
"law right, the Statute of Anne notwithstanding.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5070
msgid ""
"Astonishingly to modern lawyers, one of the greatest judges in English "
"history, Lord Mansfield, agreed with the booksellers. Whatever protection "
"the Statute of Anne gave booksellers, it did not, he held, extinguish any "
"common law right. The question was whether the common law would protect the "
"author against subsequent <quote>pirates.</quote> Mansfield's answer was "
"yes: The common law would bar Taylor from reprinting Thomson's poem without "
"Millar's permission. That common law rule thus effectively gave the "
"booksellers a perpetual right to control the publication of any book "
"assigned to them."
msgstr ""

#.  PAGE BREAK 103
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5085
msgid ""
"Considered as a matter of abstract justice&mdash;reasoning as if justice "
"were just a matter of logical deduction from first "
"principles&mdash;Mansfield's conclusion might make some sense. But what it "
"ignored was the larger issue that Parliament had struggled with in 1710: How"
" best to limit the monopoly power of publishers? Parliament's strategy was "
"to offer a term for existing works that was long enough to buy peace in "
"1710, but short enough to assure that culture would pass into competition "
"within a reasonable period of time. Within twenty-one years, Parliament "
"believed, Britain would mature from the controlled culture that the Crown "
"coveted to the free culture that we inherited."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5102
msgid ""
"The fight to defend the limits of the Statute of Anne was not to end there, "
"however, and it is here that Donaldson enters the mix."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5106
msgid "Beckett, Thomas"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5107 freeculture.xml:5214
msgid "House of Lords"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:5108
msgid "House of Lords vs."
msgstr ""

#.  f12
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:5114
msgid "Ibid., 1156."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5110
msgid ""
"Millar died soon after his victory, so his case was not appealed. His estate"
" sold Thomson's poems to a syndicate of printers that included Thomas "
"Beckett.<placeholder type=\"footnote\" id=\"0\"/> Donaldson then released an"
" unauthorized edition of Thomson's works. Beckett, on the strength of the "
"decision in <citetitle>Millar</citetitle>, got an injunction against "
"Donaldson. Donaldson appealed the case to the House of Lords, which "
"functioned much like our own Supreme Court. In February of 1774, that body "
"had the chance to interpret the meaning of Parliament's limits from sixty "
"years before."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5125
msgid "Donaldson v. Beckett"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5128
msgid ""
"As few legal cases ever do, <citetitle>Donaldson</citetitle> v. "
"<citetitle>Beckett</citetitle> drew an enormous amount of attention "
"throughout Britain. Donaldson's lawyers argued that whatever rights may have"
" existed under the common law, the Statute of Anne terminated those rights. "
"After passage of the Statute of Anne, the only legal protection for an "
"exclusive right to control publication came from that statute. Thus, they "
"argued, after the term specified in the Statute of Anne expired, works that "
"had been protected by the statute were no longer protected."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5139
msgid ""
"The House of Lords was an odd institution. Legal questions were presented to"
" the House and voted upon first by the <quote>law lords,</quote> members of "
"special legal distinction who functioned much like the Justices in our "
"Supreme Court. Then, after the law lords voted, the House of Lords generally"
" voted."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:5147 freeculture.xml:5215
msgid "English legal establishment of"
msgstr ""

#.  PAGE BREAK 104
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5149
msgid ""
"The reports about the law lords' votes are mixed. On some counts, it looks "
"as if perpetual copyright prevailed. But there is no ambiguity about how the"
" House of Lords voted as whole. By a two-to-one majority (22 to 11) they "
"voted to reject the idea of perpetual copyrights.  Whatever one's "
"understanding of the common law, now a copyright was fixed for a limited "
"time, after which the work protected by copyright passed into the public "
"domain."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5158
msgid "Bacon, Francis"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5159
msgid "Bunyan, John"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5160
msgid "Johnson, Samuel"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5164
msgid ""
"<quote>The public domain.</quote> Before the case of "
"<citetitle>Donaldson</citetitle> v. <citetitle>Beckett</citetitle>, there "
"was no clear idea of a public domain in England. Before 1774, there was a "
"strong argument that common law copyrights were perpetual.  After 1774, the "
"public domain was born. For the first time in Anglo-American history, the "
"legal control over creative works expired, and the greatest works in English"
" history&mdash;including those of Shakespeare, Bacon, Milton, Johnson, and "
"Bunyan&mdash;were free of legal restraint."
msgstr ""

#.  f13
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:5190
msgid "Rose, 97."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5180
msgid ""
"It is hard for us to imagine, but this decision by the House of Lords fueled"
" an extraordinarily popular and political reaction. In Scotland, where most "
"of the <quote>pirate publishers</quote> did their work, people celebrated "
"the decision in the streets. As the <citetitle>Edinburgh "
"Advertiser</citetitle> reported, <quote>No private cause has so much "
"engrossed the attention of the public, and none has been tried before the "
"House of Lords in the decision of which so many individuals were "
"interested.</quote> <quote>Great rejoicing in Edinburgh upon victory over "
"literary property: bonfires and illuminations.</quote><placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5195
msgid ""
"In London, however, at least among publishers, the reaction was equally "
"strong in the opposite direction. The <citetitle>Morning "
"Chronicle</citetitle> reported:"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:5201
msgid ""
"By the above decision &hellip; near 200,000 pounds worth of what was "
"honestly purchased at public sale, and which was yesterday thought property "
"is now reduced to nothing. The Booksellers of London and Westminster, many "
"of whom sold estates and houses to purchase Copy-right, are in a manner "
"ruined, and those who after many years industry thought they had acquired a "
"competency to provide for their families now find themselves without a "
"shilling to devise to their successors.<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 105
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5218
msgid ""
"<quote>Ruined</quote> is a bit of an exaggeration. But it is not an "
"exaggeration to say that the change was profound. The decision of the House "
"of Lords meant that the booksellers could no longer control how culture in "
"England would grow and develop. Culture in England was thereafter "
"<emphasis>free</emphasis>.  Not in the sense that copyrights would not be "
"respected, for of course, for a limited time after a work was published, the"
" bookseller had an exclusive right to control the publication of that book. "
"And not in the sense that books could be stolen, for even after a copyright "
"expired, you still had to buy the book from someone. But "
"<emphasis>free</emphasis> in the sense that the culture and its growth would"
" no longer be controlled by a small group of publishers. As every free "
"market does, this free market of free culture would grow as the consumers "
"and producers chose. English culture would develop as the many English "
"readers chose to let it develop&mdash; chose in the books they bought and "
"wrote; chose in the memes they repeated and endorsed. Chose in a "
"<emphasis>competitive context</emphasis>, not a context in which the choices"
" about what culture is available to people and how they get access to it are"
" made by the few despite the wishes of the many."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5241
msgid ""
"At least, this was the rule in a world where the Parliament is antimonopoly,"
" resistant to the protectionist pleas of publishers. In a world where the "
"Parliament is more pliant, free culture would be less protected."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:5258
msgid "CHAPTER SEVEN: Recorders"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:5259 freeculture.xml:7562 freeculture.xml:7681
#: freeculture.xml:7740
msgid "fair use and"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5260
msgid "documentary film"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5261
msgid "Else, Jon"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:5262 freeculture.xml:5409 freeculture.xml:7561
#: freeculture.xml:7603 freeculture.xml:7680 freeculture.xml:7742
msgid "fair use"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:5262
msgid "in documentary film"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:5263
msgid "fair use of copyrighted material in"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5265
msgid ""
"<emphasis role='strong'>Jon Else</emphasis> is a filmmaker. He is best known"
" for his documentaries and has been very successful in spreading his art. He"
" is also a teacher, and as a teacher myself, I envy the loyalty and "
"admiration that his students feel for him. (I met, by accident, two of his "
"students at a dinner party.  He was their god.)"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5272
msgid ""
"Else worked on a documentary that I was involved in. At a break, he told me "
"a story about the freedom to create with film in America today."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5276 freeculture.xml:5342
msgid "Wagner, Richard"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5277 freeculture.xml:5356
msgid "San Francisco Opera"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5279
msgid ""
"In 1990, Else was working on a documentary about Wagner's Ring Cycle. The "
"focus was stagehands at the San Francisco Opera.  Stagehands are a "
"particularly funny and colorful element of an opera.  During a show, they "
"hang out below the stage in the grips' lounge and in the lighting loft. They"
" make a perfect contrast to the art on the stage."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5286
msgid "Simpsons, The"
msgstr ""

#.  PAGE BREAK 107
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5288
msgid ""
"During one of the performances, Else was shooting some stagehands playing "
"checkers. In one corner of the room was a television set.  Playing on the "
"television set, while the stagehands played checkers and the opera company "
"played Wagner, was <citetitle>The Simpsons</citetitle>. As Else judged it, "
"this touch of cartoon helped capture the flavor of what was special about "
"the scene."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:5297
msgid "multiple copyrights associated with"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5299
msgid ""
"Years later, when he finally got funding to complete the film, Else "
"attempted to clear the rights for those few seconds of <citetitle>The "
"Simpsons</citetitle>.  For of course, those few seconds are copyrighted; and"
" of course, to use copyrighted material you need the permission of the "
"copyright owner, unless <quote>fair use</quote> or some other privilege "
"applies."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5305
msgid "Gracie Films"
msgstr ""

#. type: Content of:
#. <book><part><chapter><blockquote><orderedlist><listitem><indexterm><primary>
#: freeculture.xml:5306 freeculture.xml:5367 freeculture.xml:5431
msgid "Groening, Matt"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5308
msgid ""
"Else called <citetitle>Simpsons</citetitle> creator Matt Groening's office "
"to get permission.  Groening approved the shot. The shot was a four-"
"and-a-halfsecond image on a tiny television set in the corner of the room. "
"How could it hurt? Groening was happy to have it in the film, but he told "
"Else to contact Gracie Films, the company that produces the program."
msgstr ""

#. type: Content of:
#. <book><part><chapter><blockquote><orderedlist><listitem><indexterm><primary>
#: freeculture.xml:5314 freeculture.xml:5366 freeculture.xml:5430
msgid "Fox (film company)"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5316
msgid ""
"Gracie Films was okay with it, too, but they, like Groening, wanted to be "
"careful. So they told Else to contact Fox, Gracie's parent company.  Else "
"called Fox and told them about the clip in the corner of the one room shot "
"of the film. Matt Groening had already given permission, Else said. He was "
"just confirming the permission with Fox."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5324
msgid ""
"Then, as Else told me, <quote>two things happened. First we discovered "
"&hellip; that Matt Groening doesn't own his own creation&mdash;or at least "
"that someone [at Fox] believes he doesn't own his own creation.</quote> And "
"second, Fox <quote>wanted ten thousand dollars as a licensing fee for us to "
"use this four-point-five seconds of &hellip; entirely unsolicited "
"<citetitle>Simpsons</citetitle> which was in the corner of the shot.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5333
msgid "Herrera, Rebecca"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5335
msgid ""
"Else was certain there was a mistake. He worked his way up to someone he "
"thought was a vice president for licensing, Rebecca Herrera.  He explained "
"to her, <quote>There must be some mistake here. &hellip; We're asking for "
"your educational rate on this.</quote> That was the educational rate, "
"Herrera told Else. A day or so later, Else called again to confirm what he "
"had been told."
msgstr ""

#.  PAGE BREAK 108
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5344
msgid ""
"<quote>I wanted to make sure I had my facts straight,</quote> he told me. "
"<quote>Yes, you have your facts straight,</quote> she said. It would cost "
"$10,000 to use the clip of <citetitle>The Simpsons</citetitle> in the corner"
" of a shot in a documentary film about Wagner's Ring Cycle. And then, "
"astonishingly, Herrera told Else, <quote>And if you quote me, I'll turn you "
"over to our attorneys.</quote> As an assistant to Herrera told Else later "
"on, <quote>They don't give a shit. They just want the money.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5357
msgid "Day After Trinity, The"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5359
msgid ""
"Else didn't have the money to buy the right to replay what was playing on "
"the television backstage at the San Francisco Opera. To reproduce this "
"reality was beyond the documentary filmmaker's budget. At the very last "
"minute before the film was to be released, Else digitally replaced the shot "
"with a clip from another film that he had worked on, <citetitle>The Day "
"After Trinity</citetitle>, from ten years before."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5369
msgid ""
"There's no doubt that someone, whether Matt Groening or Fox, owns the "
"copyright to <citetitle>The Simpsons</citetitle>. That copyright is their "
"property.  To use that copyrighted material thus sometimes requires the "
"permission of the copyright owner. If the use that Else wanted to make of "
"the <citetitle>Simpsons</citetitle> copyright were one of the uses "
"restricted by the law, then he would need to get the permission of the "
"copyright owner before he could use the work in that way. And in a free "
"market, it is the owner of the copyright who gets to set the price for any "
"use that the law says the owner gets to control."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5380
msgid ""
"For example, <quote>public performance</quote> is a use of <citetitle>The "
"Simpsons</citetitle> that the copyright owner gets to control. If you take a"
" selection of favorite episodes, rent a movie theater, and charge for "
"tickets to come see <quote>My Favorite "
"<citetitle>Simpsons</citetitle>,</quote> then you need to get permission "
"from the copyright owner. And the copyright owner (rightly, in my view) can "
"charge whatever she wants&mdash;$10 or $1,000,000. That's her right, as set "
"by the law."
msgstr ""

#.  f1
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:5392
msgid ""
"For an excellent argument that such use is <quote>fair use,</quote> but that"
" lawyers don't permit recognition that it is <quote>fair use,</quote> see "
"Richard A. Posner with William F. Patry, <quote>Fair Use and Statutory "
"Reform in the Wake of <citetitle>Eldred</citetitle></quote> (draft on file "
"with author), University of Chicago Law School, 5 August 2003."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5389
msgid ""
"But when lawyers hear this story about Jon Else and Fox, their first thought"
" is <quote>fair use.</quote><placeholder type=\"footnote\" id=\"0\"/> Else's"
" use of just 4.5 seconds of an indirect shot of a "
"<citetitle>Simpsons</citetitle> episode is clearly a fair use of "
"<citetitle>The Simpsons</citetitle>&mdash;and fair use does not require the "
"permission of anyone."
msgstr ""

#.  PAGE BREAK 109
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5406
msgid ""
"So I asked Else why he didn't just rely upon <quote>fair use.</quote> Here's"
" his reply:"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:5409 freeculture.xml:7742
msgid "legal intimidation tactics against"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:5411
msgid ""
"The <citetitle>Simpsons</citetitle> fiasco was for me a great lesson in the "
"gulf between what lawyers find irrelevant in some abstract sense, and what "
"is crushingly relevant in practice to those of us actually trying to make "
"and broadcast documentaries. I never had any doubt that it was "
"<quote>clearly fair use</quote> in an absolute legal sense. But I couldn't "
"rely on the concept in any concrete way. Here's why:"
msgstr ""

#. type: Content of:
#. <book><part><chapter><blockquote><orderedlist><listitem><indexterm><primary>
#: freeculture.xml:5420
msgid "Errors and Omissions insurance"
msgstr ""

#.  1.
#. type: Content of:
#. <book><part><chapter><blockquote><orderedlist><listitem><para>
#: freeculture.xml:5423
msgid ""
"Before our films can be broadcast, the network requires that we buy Errors "
"and Omissions insurance. The carriers require a detailed <quote>visual cue "
"sheet</quote> listing the source and licensing status of each shot in the "
"film. They take a dim view of <quote>fair use,</quote> and a claim of "
"<quote>fair use</quote> can grind the application process to a halt."
msgstr ""

#. type: Content of:
#. <book><part><chapter><blockquote><orderedlist><listitem><indexterm><primary>
#: freeculture.xml:5432
msgid "Lucas, George"
msgstr ""

#. type: Content of:
#. <book><part><chapter><blockquote><orderedlist><listitem><indexterm><primary>
#: freeculture.xml:5433
msgid "<citetitle>Star Wars</citetitle>"
msgstr ""

#.  2.
#. type: Content of:
#. <book><part><chapter><blockquote><orderedlist><listitem><para>
#: freeculture.xml:5436
msgid ""
"I probably never should have asked Matt Groening in the first place. But I "
"knew (at least from folklore) that Fox had a history of tracking down and "
"stopping unlicensed <citetitle>Simpsons</citetitle> usage, just as George "
"Lucas had a very high profile litigating <citetitle>Star Wars</citetitle> "
"usage. So I decided to play by the book, thinking that we would be granted "
"free or cheap license to four seconds of <citetitle>Simpsons</citetitle>. As"
" a documentary producer working to exhaustion on a shoestring, the last "
"thing I wanted was to risk legal trouble, even nuisance legal trouble, and "
"even to defend a principle."
msgstr ""

#.  3.
#.  PAGE BREAK 110
#. type: Content of:
#. <book><part><chapter><blockquote><orderedlist><listitem><para>
#: freeculture.xml:5448
msgid ""
"I did, in fact, speak with one of your colleagues at Stanford Law School "
"&hellip; who confirmed that it was fair use. He also confirmed that Fox "
"would <quote>depose and litigate you to within an inch of your life,</quote>"
" regardless of the merits of my claim. He made clear that it would boil down"
" to who had the bigger legal department and the deeper pockets, me or them."
msgstr ""

#.  4.
#. type: Content of:
#. <book><part><chapter><blockquote><orderedlist><listitem><para>
#: freeculture.xml:5460
msgid ""
"The question of fair use usually comes up at the end of the project, when we"
" are up against a release deadline and out of money."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5468
msgid ""
"In theory, fair use means you need no permission. The theory therefore "
"supports free culture and insulates against a permission culture.  But in "
"practice, fair use functions very differently. The fuzzy lines of the law, "
"tied to the extraordinary liability if lines are crossed, means that the "
"effective fair use for many types of creators is slight. The law has the "
"right aim; practice has defeated the aim."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5476
msgid ""
"This practice shows just how far the law has come from its eighteenth-"
"century roots. The law was born as a shield to protect publishers' profits "
"against the unfair competition of a pirate. It has matured into a sword that"
" interferes with any use, transformative or not."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:5491
msgid "CHAPTER EIGHT: Transformers"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5492
msgid "Allen, Paul"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:5493 freeculture.xml:5553 freeculture.xml:5738
#: freeculture.xml:10451 freeculture.xml:14885
msgid "Alben, Alex"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5496
msgid ""
"<emphasis role='strong'>In 1993</emphasis>, Alex Alben was a lawyer working "
"at Starwave, Inc.  Starwave was an innovative company founded by Microsoft "
"cofounder Paul Allen to develop digital entertainment. Long before the "
"Internet became popular, Starwave began investing in new technology for "
"delivering entertainment in anticipation of the power of networks."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:5503
msgid "retrospective compilations on"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5504
msgid "CD-ROMs, film clips used in"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5506
msgid ""
"Alben had a special interest in new technology. He was intrigued by the "
"emerging market for CD-ROM technology&mdash;not to distribute film, but to "
"do things with film that otherwise would be very difficult.  In 1993, he "
"launched an initiative to develop a product to build retrospectives on the "
"work of particular actors. The first actor chosen was Clint Eastwood. The "
"idea was to showcase all of the work of Eastwood, with clips from his films "
"and interviews with figures important to his career."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5516
msgid ""
"At that time, Eastwood had made more than fifty films, as an actor and as a "
"director. Alben began with a series of interviews with Eastwood, asking him "
"about his career. Because Starwave produced those interviews, it was free to"
" include them on the CD."
msgstr ""

#.  PAGE BREAK 112
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5523
msgid ""
"That alone would not have made a very interesting product, so Starwave "
"wanted to add content from the movies in Eastwood's career: posters, "
"scripts, and other material relating to the films Eastwood made. Most of his"
" career was spent at Warner Brothers, and so it was relatively easy to get "
"permission for that content."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5530
msgid ""
"Then Alben and his team decided to include actual film clips. <quote>Our "
"goal was that we were going to have a clip from every one of Eastwood's "
"films,</quote> Alben told me. It was here that the problem arose. <quote>No "
"one had ever really done this before,</quote> Alben explained. <quote>No one"
" had ever tried to do this in the context of an artistic look at an actor's "
"career.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5538
msgid ""
"Alben brought the idea to Michael Slade, the CEO of Starwave.  Slade asked, "
"<quote>Well, what will it take?</quote>"
msgstr ""

#. type: Content of:
#. <book><part><chapter><para><footnote><para><indexterm><secondary>
#: freeculture.xml:5552
msgid "publicity rights on images of"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:5548
msgid ""
"Technically, the rights that Alben had to clear were mainly those of "
"publicity&mdash;rights an artist has to control the commercial exploitation "
"of his image.  But these rights, too, burden <quote>Rip, Mix, Burn</quote> "
"creativity, as this chapter evinces.  <placeholder type=\"indexterm\" "
"id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5542
msgid ""
"Alben replied, <quote>Well, we're going to have to clear rights from "
"everyone who appears in these films, and the music and everything else that "
"we want to use in these film clips.</quote> Slade said, <quote>Great! Go for"
" it.</quote><placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5557
msgid ""
"The problem was that neither Alben nor Slade had any idea what clearing "
"those rights would mean. Every actor in each of the films could have a claim"
" to royalties for the reuse of that film. But CD- ROMs had not been "
"specified in the contracts for the actors, so there was no clear way to know"
" just what Starwave was to do."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5564
msgid ""
"I asked Alben how he dealt with the problem. With an obvious pride in his "
"resourcefulness that obscured the obvious bizarreness of his tale, Alben "
"recounted just what they did:"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:5570
msgid ""
"So we very mechanically went about looking up the film clips.  We made some "
"artistic decisions about what film clips to include&mdash;of course we were "
"going to use the <quote>Make my day</quote> clip from <citetitle>Dirty "
"Harry</citetitle>. But you then need to get the guy on the ground who's "
"wiggling under the gun and you need to get his permission.  And then you "
"have to decide what you are going to pay him."
msgstr ""

#.  PAGE BREAK 113
#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:5579
msgid ""
"We decided that it would be fair if we offered them the dayplayer rate for "
"the right to reuse that performance. We're talking about a clip of less than"
" a minute, but to reuse that performance in the CD-ROM the rate at the time "
"was about $600.  So we had to identify the people&mdash;some of them were "
"hard to identify because in Eastwood movies you can't tell who's the guy "
"crashing through the glass&mdash;is it the actor or is it the stuntman? And "
"then we just, we put together a team, my assistant and some others, and we "
"just started calling people."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5590
msgid "Sutherland, Donald"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5592
msgid ""
"Some actors were glad to help&mdash;Donald Sutherland, for example, followed"
" up himself to be sure that the rights had been cleared.  Others were "
"dumbfounded at their good fortune. Alben would ask, <quote>Hey, can I pay "
"you $600 or maybe if you were in two films, you know, $1,200?</quote> And "
"they would say, <quote>Are you for real? Hey, I'd love to get "
"$1,200.</quote> And some of course were a bit difficult (estranged ex-wives,"
" in particular). But eventually, Alben and his team had cleared the rights "
"to this retrospective CD-ROM on Clint Eastwood's career."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5603
msgid ""
"It was one <emphasis>year</emphasis> later&mdash;<quote>and even then we "
"weren't sure whether we were totally in the clear.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5607
msgid ""
"Alben is proud of his work. The project was the first of its kind and the "
"only time he knew of that a team had undertaken such a massive project for "
"the purpose of releasing a retrospective."
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:5613
msgid ""
"Everyone thought it would be too hard. Everyone just threw up their hands "
"and said, <quote>Oh, my gosh, a film, it's so many copyrights, there's the "
"music, there's the screenplay, there's the director, there's the "
"actors.</quote> But we just broke it down. We just put it into its "
"constituent parts and said, <quote>Okay, there's this many actors, this many"
" directors, &hellip; this many musicians,</quote> and we just went at it "
"very systematically and cleared the rights."
msgstr ""

#.  PAGE BREAK 114
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5625
msgid ""
"And no doubt, the product itself was exceptionally good. Eastwood loved it, "
"and it sold very well."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5628
msgid "Drucker, Peter"
msgstr ""

#.  f2
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:5636
msgid ""
"U.S. Department of Commerce Office of Acquisition Management, "
"<citetitle>Seven Steps to Performance-Based Services "
"Acquisition</citetitle>, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #22</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5630
msgid ""
"But I pressed Alben about how weird it seems that it would have to take a "
"year's work simply to clear rights. No doubt Alben had done this "
"efficiently, but as Peter Drucker has famously quipped, <quote>There is "
"nothing so useless as doing efficiently that which should not be done at "
"all.</quote><placeholder type=\"footnote\" id=\"0\"/> Did it make sense, I "
"asked Alben, that this is the way a new work has to be made?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5644
msgid ""
"For, as he acknowledged, <quote>very few &hellip; have the time and "
"resources, and the will to do this,</quote> and thus, very few such works "
"would ever be made. Does it make sense, I asked him, from the standpoint of "
"what anybody really thought they were ever giving rights for originally, "
"that you would have to go clear rights for these kinds of clips?"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:5652
msgid ""
"I don't think so. When an actor renders a performance in a movie, he or she "
"gets paid very well. &hellip; And then when 30 seconds of that performance "
"is used in a new product that is a retrospective of somebody's career, I "
"don't think that that person &hellip; should be compensated for that."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5660
msgid ""
"Or at least, is this <emphasis>how</emphasis> the artist should be "
"compensated? Would it make sense, I asked, for there to be some kind of "
"statutory license that someone could pay and be free to make derivative use "
"of clips like this? Did it really make sense that a follow-on creator would "
"have to track down every artist, actor, director, musician, and get explicit"
" permission from each? Wouldn't a lot more be created if the legal part of "
"the creative process could be made to be more clean?"
msgstr ""

#.  PAGE BREAK 115
#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:5671
msgid ""
"Absolutely. I think that if there were some fair-licensing "
"mechanism&mdash;where you weren't subject to hold-ups and you weren't "
"subject to estranged former spouses&mdash;you'd see a lot more of this work,"
" because it wouldn't be so daunting to try to put together a retrospective "
"of someone's career and meaningfully illustrate it with lots of media from "
"that person's career. You'd build in a cost as the producer of one of these "
"things. You'd build in a cost of paying X dollars to the talent that "
"performed. But it would be a known cost. That's the thing that trips "
"everybody up and makes this kind of product hard to get off the ground. If "
"you knew I have a hundred minutes of film in this product and it's going to "
"cost me X, then you build your budget around it, and you can get investments"
" and everything else that you need to produce it. But if you say, <quote>Oh,"
" I want a hundred minutes of something and I have no idea what it's going to"
" cost me, and a certain number of people are going to hold me up for "
"money,</quote> then it becomes difficult to put one of these things "
"together."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5691
msgid ""
"Alben worked for a big company. His company was backed by some of the "
"richest investors in the world. He therefore had authority and access that "
"the average Web designer would not have. So if it took him a year, how long "
"would it take someone else? And how much creativity is never made just "
"because the costs of clearing the rights are so high?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5700
msgid ""
"These costs are the burdens of a kind of regulation. Put on a Republican hat"
" for a moment, and get angry for a bit. The government defines the scope of "
"these rights, and the scope defined determines how much it's going to cost "
"to negotiate them. (Remember the idea that land runs to the heavens, and "
"imagine the pilot purchasing flythrough rights as he negotiates to fly from "
"Los Angeles to San Francisco.)  These rights might well have once made "
"sense; but as circumstances change, they make no sense at all. Or at least, "
"a well-trained, regulationminimizing Republican should look at the rights "
"and ask, <quote>Does this still make sense?</quote>"
msgstr ""

#.  PAGE BREAK 116
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5713
msgid ""
"I've seen the flash of recognition when people get this point, but only a "
"few times. The first was at a conference of federal judges in California.  "
"The judges were gathered to discuss the emerging topic of cyber-law. I was "
"asked to be on the panel. Harvey Saferstein, a well-respected lawyer from an"
" L.A. firm, introduced the panel with a video that he and a friend, Robert "
"Fairbank, had produced."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5723
msgid ""
"The video was a brilliant collage of film from every period in the twentieth"
" century, all framed around the idea of a <citetitle>60 Minutes</citetitle> "
"episode.  The execution was perfect, down to the sixty-minute stopwatch. The"
" judges loved every minute of it."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5728
msgid "Nimmer, David"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5730
msgid ""
"When the lights came up, I looked over to my copanelist, David Nimmer, "
"perhaps the leading copyright scholar and practitioner in the nation. He had"
" an astonished look on his face, as he peered across the room of over 250 "
"well-entertained judges. Taking an ominous tone, he began his talk with a "
"question: <quote>Do you know how many federal laws were just violated in "
"this room?</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:5739
msgid "Boies, David"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:5740
msgid "Court of Appeals"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><secondary>
#: freeculture.xml:5740
msgid "Ninth Circuit"
msgstr ""

#. type: Content of: <book><part><chapter><para><indexterm><primary>
#: freeculture.xml:5741
msgid "Ninth Circuit Court of Appeals"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5738
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
"id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> <placeholder "
"type=\"indexterm\" id=\"3\"/> <placeholder type=\"indexterm\" id=\"4\"/> For"
" of course, the two brilliantly talented creators who made this film hadn't "
"done what Alben did. They hadn't spent a year clearing the rights to these "
"clips; technically, what they had done violated the law.  Of course, it "
"wasn't as if they or anyone were going to be prosecuted for this violation "
"(the presence of 250 judges and a gaggle of federal marshals "
"notwithstanding). But Nimmer was making an important point: A year before "
"anyone would have heard of the word Napster, and two years before another "
"member of our panel, David Boies, would defend Napster before the Ninth "
"Circuit Court of Appeals, Nimmer was trying to get the judges to see that "
"the law would not be friendly to the capacities that this technology would "
"enable. Technology means you can now do amazing things easily; but you "
"couldn't easily do them legally."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5758
msgid ""
"We live in a <quote>cut and paste</quote> culture enabled by technology. "
"Anyone building a presentation knows the extraordinary freedom that the cut "
"and paste architecture of the Internet created&mdash;in a second you can "
"find just about any image you want; in another second, you can have it "
"planted in your presentation."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5764
msgid "Camp Chaos"
msgstr ""

#.  PAGE BREAK 117
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5766
msgid ""
"But presentations are just a tiny beginning. Using the Internet and its "
"archives, musicians are able to string together mixes of sound never before "
"imagined; filmmakers are able to build movies out of clips on computers "
"around the world. An extraordinary site in Sweden takes images of "
"politicians and blends them with music to create biting political "
"commentary. A site called Camp Chaos has produced some of the most biting "
"criticism of the record industry that there is through the mixing of Flash! "
"and music."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5777
msgid ""
"All of these creations are technically illegal. Even if the creators wanted "
"to be <quote>legal,</quote> the cost of complying with the law is impossibly"
" high. Therefore, for the law-abiding sorts, a wealth of creativity is never"
" made. And for that part that is made, if it doesn't follow the clearance "
"rules, it doesn't get released."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5784
msgid ""
"To some, these stories suggest a solution: Let's alter the mix of rights so "
"that people are free to build upon our culture. Free to add or mix as they "
"see fit. We could even make this change without necessarily requiring that "
"the <quote>free</quote> use be free as in <quote>free beer.</quote> Instead,"
" the system could simply make it easy for follow-on creators to compensate "
"artists without requiring an army of lawyers to come along: a rule, for "
"example, that says <quote>the royalty owed the copyright owner of an "
"unregistered work for the derivative reuse of his work will be a flat 1 "
"percent of net revenues, to be held in escrow for the copyright "
"owner.</quote> Under this rule, the copyright owner could benefit from some "
"royalty, but he would not have the benefit of a full property right (meaning"
" the right to name his own price) unless he registers the work."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5799
msgid ""
"Who could possibly object to this? And what reason would there be for "
"objecting? We're talking about work that is not now being made; which if "
"made, under this plan, would produce new income for artists.  What reason "
"would anyone have to oppose it?"
msgstr ""

#.  PAGE BREAK 118
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5805
msgid ""
"<emphasis role='strong'>In February 2003</emphasis>, DreamWorks studios "
"announced an agreement with Mike Myers, the comic genius of "
"<citetitle>Saturday Night Live</citetitle> and Austin Powers. According to "
"the announcement, Myers and Dream-Works would work together to form a "
"<quote>unique filmmaking pact.</quote> Under the agreement, DreamWorks "
"<quote>will acquire the rights to existing motion picture hits and classics,"
" write new storylines and&mdash;with the use of stateof-the-art digital "
"technology&mdash;insert Myers and other actors into the film, thereby "
"creating an entirely new piece of entertainment.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5818
msgid ""
"The announcement called this <quote>film sampling.</quote> As Myers "
"explained, <quote>Film Sampling is an exciting way to put an original spin "
"on existing films and allow audiences to see old movies in a new light. Rap "
"artists have been doing this for years with music and now we are able to "
"take that same concept and apply it to film.</quote> Steven Spielberg is "
"quoted as saying, <quote>If anyone can create a way to bring old films to "
"new audiences, it is Mike.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5827
msgid ""
"Spielberg is right. Film sampling by Myers will be brilliant. But if you "
"don't think about it, you might miss the truly astonishing point about this "
"announcement. As the vast majority of our film heritage remains under "
"copyright, the real meaning of the DreamWorks announcement is just this: It "
"is Mike Myers and only Mike Myers who is free to sample. Any general freedom"
" to build upon the film archive of our culture, a freedom in other contexts "
"presumed for us all, is now a privilege reserved for the funny and "
"famous&mdash;and presumably rich."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5837
msgid ""
"This privilege becomes reserved for two sorts of reasons. The first "
"continues the story of the last chapter: the vagueness of <quote>fair "
"use.</quote> Much of <quote>sampling</quote> should be considered "
"<quote>fair use.</quote> But few would rely upon so weak a doctrine to "
"create. That leads to the second reason that the privilege is reserved for "
"the few: The costs of negotiating the legal rights for the creative reuse of"
" content are astronomically high.  These costs mirror the costs with fair "
"use: You either pay a lawyer to defend your fair use rights or pay a lawyer "
"to track down permissions so you don't have to rely upon fair use rights. "
"Either way, the creative process is a process of paying lawyers&mdash;again "
"a privilege, or perhaps a curse, reserved for the few."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:5852
msgid "CHAPTER NINE: Collectors"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5853 freeculture.xml:9193 freeculture.xml:11516
#: freeculture.xml:11761
msgid "archives, digital"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:5854 freeculture.xml:8480
msgid "bots"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5856
msgid ""
"<emphasis role='strong'>In April 1996</emphasis>, millions of "
"<quote>bots</quote>&mdash;computer codes designed to <quote>spider,</quote> "
"or automatically search the Internet and copy content&mdash;began running "
"across the Net. Page by page, these bots copied Internet-based information "
"onto a small set of computers located in a basement in San Francisco's "
"Presidio. Once the bots finished the whole of the Internet, they started "
"again. Over and over again, once every two months, these bits of code took "
"copies of the Internet and stored them."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5866 freeculture.xml:5897 freeculture.xml:5959
msgid "Way Back Machine"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5868
msgid ""
"By October 2001, the bots had collected more than five years of copies. And "
"at a small announcement in Berkeley, California, the archive that these "
"copies created, the Internet Archive, was opened to the world. Using a "
"technology called <quote>the Way Back Machine,</quote> you could enter a Web"
" page, and see all of its copies going back to 1996, as well as when those "
"pages changed."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5875
msgid "Orwell, George"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5877
msgid ""
"This is the thing about the Internet that Orwell would have appreciated.  In"
" the dystopia described in <citetitle>1984</citetitle>, old newspapers were "
"constantly updated to assure that the current view of the world, approved of"
" by the government, was not contradicted by previous news reports."
msgstr ""

#.  PAGE BREAK 120
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5885
msgid ""
"Thousands of workers constantly reedited the past, meaning there was no way "
"ever to know whether the story you were reading today was the story that was"
" printed on the date published on the paper."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5890
msgid ""
"It's the same with the Internet. If you go to a Web page today, there's no "
"way for you to know whether the content you are reading is the same as the "
"content you read before. The page may seem the same, but the content could "
"easily be different. The Internet is Orwell's library&mdash;constantly "
"updated, without any reliable memory."
msgstr ""

#. type: Content of:
#. <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:5906
msgid "White House press releases"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:5905
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
"id=\"1\"/> The temptations remain, however. Brewster Kahle reports that the "
"White House changes its own press releases without notice. A May 13, 2003, "
"press release stated, <quote>Combat Operations in Iraq Have Ended.</quote> "
"That was later changed, without notice, to <quote>Major Combat Operations in"
" Iraq Have Ended.</quote> E-mail from Brewster Kahle, 1 December 2003."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5899
msgid ""
"Until the Way Back Machine, at least. With the Way Back Machine, and the "
"Internet Archive underlying it, you can see what the Internet was. You have "
"the power to see what you remember. More importantly, perhaps, you also have"
" the power to find what you don't remember and what others might prefer you "
"forget.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5914
msgid "history, records of"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5916
msgid ""
"<emphasis role='strong'>We take it</emphasis> for granted that we can go "
"back to see what we remember reading. Think about newspapers. If you wanted "
"to study the reaction of your hometown newspaper to the race riots in Watts "
"in 1965, or to Bull Connor's water cannon in 1963, you could go to your "
"public library and look at the newspapers. Those papers probably exist on "
"microfiche. If you're lucky, they exist in paper, too. Either way, you are "
"free, using a library, to go back and remember&mdash;not just what it is "
"convenient to remember, but remember something close to the truth."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5927
msgid ""
"It is said that those who fail to remember history are doomed to repeat it. "
"That's not quite correct. We <emphasis>all</emphasis> forget history. The "
"key is whether we have a way to go back to rediscover what we forget. More "
"directly, the key is whether an objective past can keep us honest. Libraries"
" help do that, by collecting content and keeping it, for schoolchildren, for"
" researchers, for grandma. A free society presumes this knowedge."
msgstr ""

#.  PAGE BREAK 121
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5936
msgid ""
"The Internet was an exception to this presumption. Until the Internet "
"Archive, there was no way to go back. The Internet was the quintessentially "
"transitory medium. And yet, as it becomes more important in forming and "
"reforming society, it becomes more and more important to maintain in some "
"historical form. It's just bizarre to think that we have scads of archives "
"of newspapers from tiny towns around the world, yet there is but one copy of"
" the Internet&mdash;the one kept by the Internet Archive."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5947
msgid ""
"Brewster Kahle is the founder of the Internet Archive. He was a very "
"successful Internet entrepreneur after he was a successful computer "
"researcher.  In the 1990s, Kahle decided he had had enough business success."
"  It was time to become a different kind of success. So he launched a series"
" of projects designed to archive human knowledge. The Internet Archive was "
"just the first of the projects of this Andrew Carnegie of the Internet. By "
"December of 2002, the archive had over 10 billion pages, and it was growing "
"at about a billion pages a month."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:5956 freeculture.xml:6011 freeculture.xml:10436
msgid "Library of Congress"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5957
msgid "Television Archive"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5958
msgid "Vanderbilt University"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:5960 freeculture.xml:11007 freeculture.xml:14067
#: freeculture.xml:14197 freeculture.xml:14233
msgid "libraries"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:5960
msgid "archival function of"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5963
msgid ""
"The Way Back Machine is the largest archive of human knowledge in human "
"history. At the end of 2002, it held <quote>two hundred and thirty terabytes"
" of material</quote>&mdash;and was <quote>ten times larger than the Library "
"of Congress.</quote> And this was just the first of the archives that Kahle "
"set out to build. In addition to the Internet Archive, Kahle has been "
"constructing the Television Archive. Television, it turns out, is even more "
"ephemeral than the Internet. While much of twentieth-century culture was "
"constructed through television, only a tiny proportion of that culture is "
"available for anyone to see today. Three hours of news are recorded each "
"evening by Vanderbilt University&mdash;thanks to a specific exemption in the"
" copyright law. That content is indexed, and is available to scholars for a "
"very low fee. <quote>But other than that, [television] is almost "
"unavailable,</quote> Kahle told me. <quote>If you were Barbara Walters you "
"could get access to [the archives], but if you are just a graduate "
"student?</quote> As Kahle put it,"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><indexterm><primary>
#: freeculture.xml:5980
msgid "Quayle, Dan"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><indexterm><primary>
#: freeculture.xml:5981
msgid "60 Minutes"
msgstr ""

#.  PAGE BREAK 122
#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:5983
msgid ""
"Do you remember when Dan Quayle was interacting with Murphy Brown? Remember "
"that back and forth surreal experience of a politician interacting with a "
"fictional television character? If you were a graduate student wanting to "
"study that, and you wanted to get those original back and forth exchanges "
"between the two, the <citetitle>60 Minutes</citetitle> episode that came out"
" after it &hellip; it would be almost impossible. &hellip; Those materials "
"are almost unfindable. &hellip;"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:5994
msgid "newspapers"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:5994
msgid "archives of"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:5996
msgid ""
"Why is that? Why is it that the part of our culture that is recorded in "
"newspapers remains perpetually accessible, while the part that is recorded "
"on videotape is not? How is it that we've created a world where researchers "
"trying to understand the effect of media on nineteenthcentury America will "
"have an easier time than researchers trying to understand the effect of "
"media on twentieth-century America?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6004
msgid ""
"In part, this is because of the law. Early in American copyright law, "
"copyright owners were required to deposit copies of their work in libraries."
"  These copies were intended both to facilitate the spread of knowledge and "
"to assure that a copy of the work would be around once the copyright "
"expired, so that others might access and copy the work."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:6012 freeculture.xml:6056
msgid "archive of"
msgstr ""

#.  f2
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:6023
msgid ""
"Doug Herrick, <quote>Toward a National Film Collection: Motion Pictures at "
"the Library of Congress,</quote> <citetitle>Film Library "
"Quarterly</citetitle> 13 nos. 2&ndash;3 (1980): 5; Anthony Slide, "
"<citetitle>Nitrate Won't Wait: A History of Film Preservation in the United "
"States</citetitle> (Jefferson, N.C.: McFarland &amp; Co., 1992), 36."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6014
msgid ""
"These rules applied to film as well. But in 1915, the Library of Congress "
"made an exception for film. Film could be copyrighted so long as such "
"deposits were made. But the filmmaker was then allowed to borrow back the "
"deposits&mdash;for an unlimited time at no cost. In 1915 alone, there were "
"more than 5,475 films deposited and <quote>borrowed back.</quote> Thus, when"
" the copyrights to films expire, there is no copy held by any library. The "
"copy exists&mdash;if it exists at all&mdash;in the library archive of the "
"film company.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6031
msgid ""
"The same is generally true about television. Television broadcasts were "
"originally not copyrighted&mdash;there was no way to capture the broadcasts,"
" so there was no fear of <quote>theft.</quote> But as technology enabled "
"capturing, broadcasters relied increasingly upon the law. The law required "
"they make a copy of each broadcast for the work to be "
"<quote>copyrighted.</quote> But those copies were simply kept by the "
"broadcasters. No library had any right to them; the government didn't demand"
" them.  The content of this part of American culture is practically "
"invisible to anyone who would look."
msgstr ""

#.  PAGE BREAK 123
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6043
msgid ""
"Kahle was eager to correct this. Before September 11, 2001, he and his "
"allies had started capturing television. They selected twenty stations from "
"around the world and hit the Record button. After September 11, Kahle, "
"working with dozens of others, selected twenty stations from around the "
"world and, beginning October 11, 2001, made their coverage during the week "
"of September 11 available free on-line.  Anyone could see how news reports "
"from around the world covered the events of that day."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:6053
msgid "Movie Archive"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:6054
msgid "archive.org"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:6054 freeculture.xml:6057
msgid "Internet Archive"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:6058
msgid "Duck and Cover film"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:6059
msgid "ephemeral films"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:6060
msgid "Prelinger, Rick"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6062
msgid ""
"Kahle had the same idea with film. Working with Rick Prelinger, whose "
"archive of film includes close to 45,000 <quote>ephemeral films</quote> "
"(meaning films other than Hollywood movies, films that were never "
"copyrighted), Kahle established the Movie Archive. Prelinger let Kahle "
"digitize 1,300 films in this archive and post those films on the Internet to"
" be downloaded for free. Prelinger's is a for-profit company. It sells "
"copies of these films as stock footage. What he has discovered is that after"
" he made a significant chunk available for free, his stock footage sales "
"went up dramatically. People could easily find the material they wanted to "
"use. Some downloaded that material and made films on their own. Others "
"purchased copies to enable other films to be made.  Either way, the archive "
"enabled access to this important part of our culture.  Want to see a copy of"
" the <quote>Duck and Cover</quote> film that instructed children how to save"
" themselves in the middle of nuclear attack? Go to archive.org, and you can "
"download the film in a few minutes&mdash;for free."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6080
msgid ""
"Here again, Kahle is providing access to a part of our culture that we "
"otherwise could not get easily, if at all. It is yet another part of what "
"defines the twentieth century that we have lost to history. The law doesn't "
"require these copies to be kept by anyone, or to be deposited in an archive "
"by anyone. Therefore, there is no simple way to find them."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6088
msgid ""
"The key here is access, not price. Kahle wants to enable free access to this"
" content, but he also wants to enable others to sell access to it. His aim "
"is to ensure competition in access to this important part of our culture.  "
"Not during the commercial life of a bit of creative property, but during a "
"second life that all creative property has&mdash;a noncommercial life."
msgstr ""

#.  PAGE BREAK 124
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6096
msgid ""
"For here is an idea that we should more clearly recognize. Every bit of "
"creative property goes through different <quote>lives.</quote> In its first "
"life, if the creator is lucky, the content is sold. In such cases the "
"commercial market is successful for the creator. The vast majority of "
"creative property doesn't enjoy such success, but some clearly does. For "
"that content, commercial life is extremely important. Without this "
"commercial market, there would be, many argue, much less creativity."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6108
msgid ""
"After the commercial life of creative property has ended, our tradition has "
"always supported a second life as well. A newspaper delivers the news every "
"day to the doorsteps of America. The very next day, it is used to wrap fish "
"or to fill boxes with fragile gifts or to build an archive of knowledge "
"about our history. In this second life, the content can continue to inform "
"even if that information is no longer sold."
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:6121
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> Dave Barns, <quote>Fledgling "
"Career in Antique Books: Woodstock Landlord, Bar Owner Starts a New Chapter "
"by Adopting Business,</quote> <citetitle>Chicago Tribune</citetitle>, 5 "
"September 1997, at Metro Lake 1L. Of books published between 1927 and 1946, "
"only 2.2 percent were in print in 2002. R. Anthony Reese, <quote>The First "
"Sale Doctrine in the Era of Digital Networks,</quote> <citetitle>Boston "
"College Law Review</citetitle> 44 (2003): 593 n. 51."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6118
msgid ""
"The same has always been true about books. A book goes out of print very "
"quickly (the average today is after about a year<placeholder "
"type=\"footnote\" id=\"0\"/>). After it is out of print, it can be sold in "
"used book stores without the copyright owner getting anything and stored in "
"libraries, where many get to read the book, also for free. Used book stores "
"and libraries are thus the second life of a book. That second life is "
"extremely important to the spread and stability of culture."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6136
msgid ""
"Yet increasingly, any assumption about a stable second life for creative "
"property does not hold true with the most important components of popular "
"culture in the twentieth and twenty-first centuries. For "
"these&mdash;television, movies, music, radio, the Internet&mdash;there is no"
" guarantee of a second life. For these sorts of culture, it is as if we've "
"replaced libraries with Barnes &amp; Noble superstores. With this culture, "
"what's accessible is nothing but what a certain limited market demands.  "
"Beyond that, culture disappears."
msgstr ""

#.  PAGE BREAK 125
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6147
msgid ""
"<emphasis role='strong'>For most of</emphasis> the twentieth century, it was"
" economics that made this so. It would have been insanely expensive to "
"collect and make accessible all television and film and music: The cost of "
"analog copies is extraordinarily high. So even though the law in principle "
"would have restricted the ability of a Brewster Kahle to copy culture "
"generally, the real restriction was economics. The market made it impossibly"
" difficult to do anything about this ephemeral culture; the law had little "
"practical effect."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6159
msgid ""
"Perhaps the single most important feature of the digital revolution is that "
"for the first time since the Library of Alexandria, it is feasible to "
"imagine constructing archives that hold all culture produced or distributed "
"publicly. Technology makes it possible to imagine an archive of all books "
"published, and increasingly makes it possible to imagine an archive of all "
"moving images and sound."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6167
msgid ""
"The scale of this potential archive is something we've never imagined "
"before. The Brewster Kahles of our history have dreamed about it; but we are"
" for the first time at a point where that dream is possible. As Kahle "
"describes,"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><indexterm><secondary>
#: freeculture.xml:6173
msgid "total number of"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:6175
msgid ""
"It looks like there's about two to three million recordings of music.  Ever."
" There are about a hundred thousand theatrical releases of movies, &hellip; "
"and about one to two million movies [distributed] during the twentieth "
"century. There are about twenty-six million different titles of books. All "
"of these would fit on computers that would fit in this room and be able to "
"be afforded by a small company.  So we're at a turning point in our history."
" Universal access is the goal. And the opportunity of leading a different "
"life, based on this, is &hellip; thrilling. It could be one of the things "
"humankind would be most proud of. Up there with the Library of Alexandria, "
"putting a man on the moon, and the invention of the printing press."
msgstr ""

#.  PAGE BREAK 126
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6190
msgid ""
"Kahle is not the only librarian. The Internet Archive is not the only "
"archive. But Kahle and the Internet Archive suggest what the future of "
"libraries or archives could be. <emphasis>When</emphasis> the commercial "
"life of creative property ends, I don't know. But it does. And whenever it "
"does, Kahle and his archive hint at a world where this knowledge, and "
"culture, remains perpetually available. Some will draw upon it to understand"
" it; some to criticize it. Some will use it, as Walt Disney did, to re-"
"create the past for the future. These technologies promise something that "
"had become unimaginable for much of our past&mdash;a future "
"<emphasis>for</emphasis> our past. The technology of digital arts could make"
" the dream of the Library of Alexandria real again."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6205
msgid ""
"Technologists have thus removed the economic costs of building such an "
"archive. But lawyers' costs remain. For as much as we might like to call "
"these <quote>archives,</quote> as warm as the idea of a "
"<quote>library</quote> might seem, the <quote>content</quote> that is "
"collected in these digital spaces is also someone's <quote>property.</quote>"
" And the law of property restricts the freedoms that Kahle and others would "
"exercise."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:6216
msgid "CHAPTER TEN: <quote>Property</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:6217
msgid "Johnson, Lyndon"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6218 freeculture.xml:10195
msgid "Kennedy, John F."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6220
msgid ""
"<emphasis role='strong'>Jack Valenti</emphasis> has been the president of "
"the Motion Picture Association of America since 1966. He first came to "
"Washington, D.C., with Lyndon Johnson's administration&mdash;literally. The "
"famous picture of Johnson's swearing-in on Air Force One after the "
"assassination of President Kennedy has Valenti in the background. In his "
"almost forty years of running the MPAA, Valenti has established himself as "
"perhaps the most prominent and effective lobbyist in Washington."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:6230
msgid "Sony Pictures Entertainment"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:6231
msgid "MGM"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:6232
msgid "Paramount Pictures"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:6233
msgid "Twentieth Century Fox"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:6234
msgid "Universal Pictures"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6235 freeculture.xml:7851 freeculture.xml:8022
msgid "Warner Brothers"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6237
msgid ""
"The MPAA is the American branch of the international Motion Picture "
"Association. It was formed in 1922 as a trade association whose goal was to "
"defend American movies against increasing domestic criticism.  The "
"organization now represents not only filmmakers but producers and "
"distributors of entertainment for television, video, and cable. Its board is"
" made up of the chairmen and presidents of the seven major producers and "
"distributors of motion picture and television programs in the United States:"
" Walt Disney, Sony Pictures Entertainment, MGM, Paramount Pictures, "
"Twentieth Century Fox, Universal Studios, and Warner Brothers."
msgstr ""

#.  PAGE BREAK 128
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6250
msgid ""
"Valenti is only the third president of the MPAA. No president before him has"
" had as much influence over that organization, or over Washington. As a "
"Texan, Valenti has mastered the single most important political skill of a "
"Southerner&mdash;the ability to appear simple and slow while hiding a "
"lightning-fast intellect. To this day, Valenti plays the simple, humble man."
" But this Harvard MBA, and author of four books, who finished high school at"
" the age of fifteen and flew more than fifty combat missions in World War "
"II, is no Mr. Smith. When Valenti went to Washington, he mastered the city "
"in a quintessentially Washingtonian way."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6262
msgid ""
"In defending artistic liberty and the freedom of speech that our culture "
"depends upon, the MPAA has done important good. In crafting the MPAA rating "
"system, it has probably avoided a great deal of speech-regulating harm. But "
"there is an aspect to the organization's mission that is both the most "
"radical and the most important. This is the organization's effort, "
"epitomized in Valenti's every act, to redefine the meaning of "
"<quote>creative property.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6271
msgid ""
"In 1982, Valenti's testimony to Congress captured the strategy perfectly:"
msgstr ""

#.  f1
#. type: Content of: <book><part><chapter><blockquote><para><footnote><para>
#: freeculture.xml:6285
msgid ""
"Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R.  4794, H.R."
" 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the Subcommittee on "
"Courts, Civil Liberties, and the Administration of Justice of the Committee "
"on the Judiciary of the House of Representatives, 97th Cong., 2nd sess. "
"(1982): 65 (testimony of Jack Valenti)."
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:6276
msgid ""
"No matter the lengthy arguments made, no matter the charges and the counter-"
"charges, no matter the tumult and the shouting, reasonable men and women "
"will keep returning to the fundamental issue, the central theme which "
"animates this entire debate: <emphasis>Creative property owners must be "
"accorded the same rights and protection resident in all other property "
"owners in the nation</emphasis>. That is the issue.  That is the question. "
"And that is the rostrum on which this entire hearing and the debates to "
"follow must rest.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 129
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6295
msgid ""
"The strategy of this rhetoric, like the strategy of most of Valenti's "
"rhetoric, is brilliant and simple and brilliant because simple. The "
"<quote>central theme</quote> to which <quote>reasonable men and "
"women</quote> will return is this: <quote>Creative property owners must be "
"accorded the same rights and protections resident in all other property "
"owners in the nation.</quote> There are no second-class citizens, Valenti "
"might have continued. There should be no second-class property owners."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6306
msgid ""
"This claim has an obvious and powerful intuitive pull. It is stated with "
"such clarity as to make the idea as obvious as the notion that we use "
"elections to pick presidents. But in fact, there is no more extreme a claim "
"made by <emphasis>anyone</emphasis> who is serious in this debate than this "
"claim of Valenti's. Jack Valenti, however sweet and however brilliant, is "
"perhaps the nation's foremost extremist when it comes to the nature and "
"scope of <quote>creative property.</quote> His views have "
"<emphasis>no</emphasis> reasonable connection to our actual legal tradition,"
" even if the subtle pull of his Texan charm has slowly redefined that "
"tradition, at least in Washington."
msgstr ""

#.  f2
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:6321
msgid ""
"Lawyers speak of <quote>property</quote> not as an absolute thing, but as a "
"bundle of rights that are sometimes associated with a particular object. "
"Thus, my <quote>property right</quote> to my car gives me the right to "
"exclusive use, but not the right to drive at 150 miles an hour. For the best"
" effort to connect the ordinary meaning of <quote>property</quote> to "
"<quote>lawyer talk,</quote> see Bruce Ackerman, <citetitle>Private Property "
"and the Constitution</citetitle> (New Haven: Yale University Press, 1977), "
"26&ndash;27."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6318
msgid ""
"While <quote>creative property</quote> is certainly <quote>property</quote> "
"in a nerdy and precise sense that lawyers are trained to "
"understand,<placeholder type=\"footnote\" id=\"0\"/> it has never been the "
"case, nor should it be, that <quote>creative property owners</quote> have "
"been <quote>accorded the same rights and protection resident in all other "
"property owners.</quote> Indeed, if creative property owners were given the "
"same rights as all other property owners, that would effect a radical, and "
"radically undesirable, change in our tradition."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6336
msgid ""
"Valenti knows this. But he speaks for an industry that cares squat for our "
"tradition and the values it represents. He speaks for an industry that is "
"instead fighting to restore the tradition that the British overturned in "
"1710. In the world that Valenti's changes would create, a powerful few would"
" exercise powerful control over how our creative culture would develop."
msgstr ""

#.  PAGE BREAK 130
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6344
msgid ""
"I have two purposes in this chapter. The first is to convince you that, "
"historically, Valenti's claim is absolutely wrong. The second is to convince"
" you that it would be terribly wrong for us to reject our history.  We have "
"always treated rights in creative property differently from the rights "
"resident in all other property owners. They have never been the same. And "
"they should never be the same, because, however counterintuitive this may "
"seem, to make them the same would be to fundamentally weaken the opportunity"
" for new creators to create.  Creativity depends upon the owners of "
"creativity having less than perfect control."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6359
msgid ""
"Organizations such as the MPAA, whose board includes the most powerful of "
"the old guard, have little interest, their rhetoric notwithstanding, in "
"assuring that the new can displace them. No organization does. No person "
"does. (Ask me about tenure, for example.)  But what's good for the MPAA is "
"not necessarily good for America. A society that defends the ideals of free "
"culture must preserve precisely the opportunity for new creativity to "
"threaten the old."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6368
msgid ""
"<emphasis role='strong'>To get</emphasis> just a hint that there is "
"something fundamentally wrong in Valenti's argument, we need look no further"
" than the United States Constitution itself."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6373
msgid ""
"The framers of our Constitution loved <quote>property.</quote> Indeed, so "
"strongly did they love property that they built into the Constitution an "
"important requirement. If the government takes your property&mdash;if it "
"condemns your house, or acquires a slice of land from your farm&mdash;it is "
"required, under the Fifth Amendment's <quote>Takings Clause,</quote> to pay "
"you <quote>just compensation</quote> for that taking. The Constitution thus "
"guarantees that property is, in a certain sense, sacred. It cannot "
"<emphasis>ever</emphasis> be taken from the property owner unless the "
"government pays for the privilege."
msgstr ""

#.  PAGE BREAK 131
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6384
msgid ""
"Yet the very same Constitution speaks very differently about what Valenti "
"calls <quote>creative property.</quote> In the clause granting Congress the "
"power to create <quote>creative property,</quote> the Constitution "
"<emphasis>requires</emphasis> that after a <quote>limited time,</quote> "
"Congress take back the rights that it has granted and set the "
"<quote>creative property</quote> free to the public domain. Yet when "
"Congress does this, when the expiration of a copyright term "
"<quote>takes</quote> your copyright and turns it over to the public domain, "
"Congress does not have any obligation to pay <quote>just "
"compensation</quote> for this <quote>taking.</quote> Instead, the same "
"Constitution that requires compensation for your land requires that you lose"
" your <quote>creative property</quote> right without any compensation at "
"all."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6399
msgid ""
"The Constitution thus on its face states that these two forms of property "
"are not to be accorded the same rights. They are plainly to be treated "
"differently. Valenti is therefore not just asking for a change in our "
"tradition when he argues that creative-property owners should be accorded "
"the same rights as every other property-right owner. He is effectively "
"arguing for a change in our Constitution itself."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6409
msgid ""
"Arguing for a change in our Constitution is not necessarily wrong.  There "
"was much in our original Constitution that was plainly wrong.  The "
"Constitution of 1789 entrenched slavery; it left senators to be appointed "
"rather than elected; it made it possible for the electoral college to "
"produce a tie between the president and his own vice president (as it did in"
" 1800). The framers were no doubt extraordinary, but I would be the first to"
" admit that they made big mistakes. We have since rejected some of those "
"mistakes; no doubt there could be others that we should reject as well. So "
"my argument is not simply that because Jefferson did it, we should, too."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6421
msgid ""
"Instead, my argument is that because Jefferson did it, we should at least "
"try to understand <emphasis>why</emphasis>. Why did the framers, fanatical "
"property types that they were, reject the claim that creative property be "
"given the same rights as all other property? Why did they require that for "
"creative property there must be a public domain?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6431
msgid ""
"To answer this question, we need to get some perspective on the history of "
"these <quote>creative property</quote> rights, and the control that they "
"enabled.  Once we see clearly how differently these rights have been "
"defined, we will be in a better position to ask the question that should be "
"at the core of this war: Not <emphasis>whether</emphasis> creative property "
"should be protected, but how. Not <emphasis>whether</emphasis> we will "
"enforce the rights the law gives to creative-property owners, but what the "
"particular mix of rights ought to be. Not <emphasis>whether</emphasis> "
"artists should be paid, but whether institutions designed to assure that "
"artists get paid need also control how culture develops."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:6443
msgid "four modalities of constraint on"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6444 freeculture.xml:6703 freeculture.xml:9770
#: freeculture.xml:9887
msgid "regulation"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:6444
msgid "four modalities of"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:6445
msgid "as ex post regulation modality"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:6446 freeculture.xml:6522 freeculture.xml:6657
msgid "as constraint modality"
msgstr ""

#.  PAGE BREAK 132
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6450
msgid ""
"To answer these questions, we need a more general way to talk about how "
"property is protected. More precisely, we need a more general way than the "
"narrow language of the law allows. In <citetitle>Code and Other Laws of "
"Cyberspace</citetitle>, I used a simple model to capture this more general "
"perspective. For any particular right or regulation, this model asks how "
"four different modalities of regulation interact to support or weaken the "
"right or regulation. I represented it with this diagram:"
msgstr ""

#. type: Content of: <book><part><chapter><figure><title>
#: freeculture.xml:6459
msgid ""
"How four different modalities of regulation interact to support or weaken "
"the right or regulation."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:6460 freeculture.xml:6653 freeculture.xml:7023
msgid "<graphic fileref=\"images/1331.svg\" align=\"center\" width=\"50%\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6464
msgid ""
"At the center of this picture is a regulated dot: the individual or group "
"that is the target of regulation, or the holder of a right. (In each case "
"throughout, we can describe this either as regulation or as a right.  For "
"simplicity's sake, I will speak only of regulations.)  The ovals represent "
"four ways in which the individual or group might be regulated&mdash; either "
"constrained or, alternatively, enabled. Law is the most obvious constraint "
"(to lawyers, at least). It constrains by threatening punishments after the "
"fact if the rules set in advance are violated. So if, for example, you "
"willfully infringe Madonna's copyright by copying a song from her latest CD "
"and posting it on the Web, you can be punished with a $150,000 fine. The "
"fine is an ex post punishment for violating an ex ante rule. It is imposed "
"by the state.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6480 freeculture.xml:6542 freeculture.xml:6658
msgid "norms, regulatory influence of"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6482
msgid ""
"Norms are a different kind of constraint. They, too, punish an individual "
"for violating a rule. But the punishment of a norm is imposed by a "
"community, not (or not only) by the state. There may be no law against "
"spitting, but that doesn't mean you won't be punished if you spit on the "
"ground while standing in line at a movie. The punishment might not be harsh,"
" though depending upon the community, it could easily be more harsh than "
"many of the punishments imposed by the state. The mark of the difference is "
"not the severity of the rule, but the source of the enforcement."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6492 freeculture.xml:6541 freeculture.xml:6634
#: freeculture.xml:6674 freeculture.xml:9779 freeculture.xml:10013
msgid "market constraints"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6494
msgid ""
"The market is a third type of constraint. Its constraint is effected through"
" conditions: You can do X if you pay Y; you'll be paid M if you do N. These "
"constraints are obviously not independent of law or norms&mdash;it is "
"property law that defines what must be bought if it is to be taken legally; "
"it is norms that say what is appropriately sold. But given a set of norms, "
"and a background of property and contract law, the market imposes a "
"simultaneous constraint upon how an individual or group might behave."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6503 freeculture.xml:6540 freeculture.xml:6592
#: freeculture.xml:6633 freeculture.xml:6656
msgid "architecture, constraint effected through"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6505
msgid ""
"Finally, and for the moment, perhaps, most mysteriously, "
"<quote>architecture</quote>&mdash;the physical world as one finds "
"it&mdash;is a constraint on behavior.  A fallen bridge might constrain your "
"ability to get across a river. Railroad tracks might constrain the ability "
"of a community to integrate its social life. As with the market, "
"architecture does not effect its constraint through ex post punishments. "
"Instead, also as with the market, architecture effects its constraint "
"through simultaneous conditions. These conditions are imposed not by courts "
"enforcing contracts, or by police punishing theft, but by nature, by "
"<quote>architecture.</quote> If a 500-pound boulder blocks your way, it is "
"the law of gravity that enforces this constraint. If a $500 airplane ticket "
"stands between you and a flight to New York, it is the market that enforces "
"this constraint."
msgstr ""

#.  PAGE BREAK 134
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6526
msgid ""
"So the first point about these four modalities of regulation is obvious: "
"They interact. Restrictions imposed by one might be reinforced by another. "
"Or restrictions imposed by one might be undermined by another."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6532
msgid ""
"The second point follows directly: If we want to understand the effective "
"freedom that anyone has at a given moment to do any particular thing, we "
"have to consider how these four modalities interact.  Whether or not there "
"are other constraints (there may well be; my claim is not about "
"comprehensiveness), these four are among the most significant, and any "
"regulator (whether controlling or freeing)  must consider how these four in "
"particular interact."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:6543
msgid "driving speed, constraints on"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:6544
msgid "speeding, constraints on"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6546
msgid ""
"So, for example, consider the <quote>freedom</quote> to drive a car at a "
"high speed. That freedom is in part restricted by laws: speed limits that "
"say how fast you can drive in particular places at particular times. It is "
"in part restricted by architecture: speed bumps, for example, slow most "
"rational drivers; governors in buses, as another example, set the maximum "
"rate at which the driver can drive. The freedom is in part restricted by the"
" market: Fuel efficiency drops as speed increases, thus the price of "
"gasoline indirectly constrains speed. And finally, the norms of a community "
"may or may not constrain the freedom to speed. Drive at 50 mph by a school "
"in your own neighborhood and you're likely to be punished by the neighbors. "
"The same norm wouldn't be as effective in a different town, or at night."
msgstr ""

#.  f3
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:6564
msgid ""
"By describing the way law affects the other three modalities, I don't mean "
"to suggest that the other three don't affect law. Obviously, they do. Law's "
"only distinction is that it alone speaks as if it has a right self-"
"consciously to change the other three. The right of the other three is more "
"timidly expressed.  See Lawrence Lessig, <citetitle>Code: And Other Laws of "
"Cyberspace</citetitle> (New York: Basic Books, 1999): 90&ndash;95; Lawrence "
"Lessig, <quote>The New Chicago School,</quote> <citetitle>Journal of Legal "
"Studies</citetitle>, June 1998."
msgstr ""

#.  PAGE BREAK 135
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6560
msgid ""
"The final point about this simple model should also be fairly clear: While "
"these four modalities are analytically independent, law has a special role "
"in affecting the three.<placeholder type=\"footnote\" id=\"0\"/> The law, in"
" other words, sometimes operates to increase or decrease the constraint of a"
" particular modality.  Thus, the law might be used to increase taxes on "
"gasoline, so as to increase the incentives to drive more slowly. The law "
"might be used to mandate more speed bumps, so as to increase the difficulty "
"of driving rapidly. The law might be used to fund ads that stigmatize "
"reckless driving. Or the law might be used to require that other laws be "
"more strict&mdash;a federal requirement that states decrease the speed "
"limit, for example&mdash;so as to decrease the attractiveness of fast "
"driving."
msgstr ""

#. type: Content of: <book><part><chapter><figure><title>
#: freeculture.xml:6588
msgid "Law has a special role in affecting the three."
msgstr ""

#. type: Content of: <book><part><chapter><figure>
#: freeculture.xml:6589
msgid "<graphic fileref=\"images/1361.svg\" align=\"center\" width=\"50%\"></graphic>"
msgstr ""

#. type: Content of:
#. <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:6631
msgid "Americans with Disabilities Act (1990)"
msgstr ""

#. type: Content of:
#. <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:6632
msgid "Commons, John R."
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:6602
msgid ""
"Some people object to this way of talking about <quote>liberty.</quote> They"
" object because their focus when considering the constraints that exist at "
"any particular moment are constraints imposed exclusively by the government."
" For instance, if a storm destroys a bridge, these people think it is "
"meaningless to say that one's liberty has been restrained. A bridge has "
"washed out, and it's harder to get from one place to another. To talk about "
"this as a loss of freedom, they say, is to confuse the stuff of politics "
"with the vagaries of ordinary life.  I don't mean to deny the value in this "
"narrower view, which depends upon the context of the inquiry. I do, however,"
" mean to argue against any insistence that this narrower view is the only "
"proper view of liberty. As I argued in <citetitle>Code</citetitle>, we come "
"from a long tradition of political thought with a broader focus than the "
"narrow question of what the government did when.  John Stuart Mill defended "
"freedom of speech, for example, from the tyranny of narrow minds, not from "
"the fear of government prosecution; John Stuart Mill, <citetitle>On "
"Liberty</citetitle> (Indiana: Hackett Publishing Co., 1978), 19.  John R. "
"Commons famously defended the economic freedom of labor from constraints "
"imposed by the market; John R. Commons, <quote>The Right to Work,</quote> in"
" Malcom Rutherford and Warren J. Samuels, eds., <citetitle>John R. Commons: "
"Selected Essays</citetitle> (London: Routledge: 1997), 62. The Americans "
"with Disabilities Act increases the liberty of people with physical "
"disabilities by changing the architecture of certain public places, thereby "
"making access to those places easier; 42 <citetitle>United States "
"Code</citetitle>, section 12101 (2000).  Each of these interventions to "
"change existing conditions changes the liberty of a particular group. The "
"effect of those interventions should be accounted for in order to understand"
" the effective liberty that each of these groups might face.  <placeholder "
"type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> "
"<placeholder type=\"indexterm\" id=\"2\"/> <placeholder type=\"indexterm\" "
"id=\"3\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:6594
msgid ""
"These constraints can thus change, and they can be changed. To understand "
"the effective protection of liberty or protection of property at any "
"particular moment, we must track these changes over time. A restriction "
"imposed by one modality might be erased by another. A freedom enabled by one"
" modality might be displaced by another.<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:6639
msgid "Why Hollywood Is Right"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:6640 freeculture.xml:7013
msgid "four regulatory modalities on"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6642
msgid ""
"The most obvious point that this model reveals is just why, or just how, "
"Hollywood is right. The copyright warriors have rallied Congress and the "
"courts to defend copyright. This model helps us see why that rallying makes "
"sense."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6648
msgid ""
"Let's say this is the picture of copyright's regulation before the Internet:"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:6652 freeculture.xml:7022
msgid "Copyright's regulation before the Internet."
msgstr ""

#.  PAGE BREAK 136
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6661
msgid ""
"There is balance between law, norms, market, and architecture. The law "
"limits the ability to copy and share content, by imposing penalties on those"
" who copy and share content. Those penalties are reinforced by technologies "
"that make it hard to copy and share content (architecture) and expensive to "
"copy and share content (market). Finally, those penalties are mitigated by "
"norms we all recognize&mdash;kids, for example, taping other kids' records. "
"These uses of copyrighted material may well be infringement, but the norms "
"of our society (before the Internet, at least) had no problem with this form"
" of infringement."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:6672
msgid "copyright regulatory balance lost with"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:6673
msgid "regulatory balance lost in"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6675
msgid "MP3s"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6677
msgid ""
"Enter the Internet, or, more precisely, technologies such as MP3s and p2p "
"sharing. Now the constraint of architecture changes dramatically, as does "
"the constraint of the market. And as both the market and architecture relax "
"the regulation of copyright, norms pile on. The happy balance (for the "
"warriors, at least) of life before the Internet becomes an effective state "
"of anarchy after the Internet."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6686 freeculture.xml:7530 freeculture.xml:7840
msgid "technology"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:6686
msgid "established industries threatened by changes in"
msgstr ""

#.  PAGE BREAK 137
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6688
msgid ""
"Thus the sense of, and justification for, the warriors' response.  "
"Technology has changed, the warriors say, and the effect of this change, "
"when ramified through the market and norms, is that a balance of protection "
"for the copyright owners' rights has been lost. This is Iraq after the fall "
"of Saddam, but this time no government is justifying the looting that "
"results."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:6698
msgid "effective state of anarchy after the Internet."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:6699
msgid "<graphic fileref=\"images/1381.svg\" align=\"center\" width=\"50%\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6702
msgid "Commerce, U.S. Department of"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:6703 freeculture.xml:9770
msgid "as establishment protectionism"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6705
msgid ""
"Neither this analysis nor the conclusions that follow are new to the "
"warriors. Indeed, in a <quote>White Paper</quote> prepared by the Commerce "
"Department (one heavily influenced by the copyright warriors) in 1995, this "
"mix of regulatory modalities had already been identified and the strategy to"
" respond already mapped. In response to the changes the Internet had "
"effected, the White Paper argued (1) Congress should strengthen intellectual"
" property law, (2) businesses should adopt innovative marketing techniques, "
"(3) technologists should push to develop code to protect copyrighted "
"material, and (4) educators should educate kids to better protect copyright."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6718 freeculture.xml:6858
msgid "farming"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6719
msgid "steel industry"
msgstr ""

#.  PAGE BREAK 138
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6721
msgid ""
"This mixed strategy is just what copyright needed&mdash;if it was to "
"preserve the particular balance that existed before the change induced by "
"the Internet. And it's just what we should expect the content industry to "
"push for. It is as American as apple pie to consider the happy life you have"
" as an entitlement, and to look to the law to protect it if something comes "
"along to change that happy life. Homeowners living in a flood plain have no "
"hesitation appealing to the government to rebuild (and rebuild again) when a"
" flood (architecture) wipes away their property (law). Farmers have no "
"hesitation appealing to the government to bail them out when a virus "
"(architecture) devastates their crop. Unions have no hesitation appealing to"
" the government to bail them out when imports (market) wipe out the U.S. "
"steel industry."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6741
msgid ""
"Thus, there's nothing wrong or surprising in the content industry's campaign"
" to protect itself from the harmful consequences of a technological "
"innovation. And I would be the last person to argue that the changing "
"technology of the Internet has not had a profound effect on the content "
"industry's way of doing business, or as John Seely Brown describes it, its "
"<quote>architecture of revenue.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6754
msgid "railroad industry"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6755
msgid "remote channel changers"
msgstr ""

#.  f5
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:6765
msgid ""
"See Geoffrey Smith, <quote>Film vs. Digital: Can Kodak Build a "
"Bridge?</quote> BusinessWeek online, 2 August 1999, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #23</ulink>. For a more recent "
"analysis of Kodak's place in the market, see Chana R. Schoenberger, "
"<quote>Can Kodak Make Up for Lost Moments?</quote> Forbes.com, 6 October "
"2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#24</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6757
msgid ""
"But just because a particular interest asks for government support, it "
"doesn't follow that support should be granted. And just because technology "
"has weakened a particular way of doing business, it doesn't follow that the "
"government should intervene to support that old way of doing business. "
"Kodak, for example, has lost perhaps as much as 20 percent of their "
"traditional film market to the emerging technologies of digital "
"cameras.<placeholder type=\"footnote\" id=\"0\"/> Does anyone believe the "
"government should ban digital cameras just to support Kodak? Highways have "
"weakened the freight business for railroads. Does anyone think we should ban"
" trucks from roads <emphasis>for the purpose of</emphasis> protecting the "
"railroads? Closer to the subject of this book, remote channel changers have "
"weakened the <quote>stickiness</quote> of television advertising (if a "
"boring commercial comes on the TV, the remote makes it easy to surf), and it"
" may well be that this change has weakened the television advertising "
"market. But does anyone believe we should regulate remotes to reinforce "
"commercial television? (Maybe by limiting them to function only once a "
"second, or to switch to only ten channels within an hour?)"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6786
msgid "free market, technological changes in"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:6787 freeculture.xml:15461
msgid "Brezhnev, Leonid"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:6790 freeculture.xml:13661
msgid "Gates, Bill"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6791 freeculture.xml:7805
msgid "market competition"
msgstr ""

#.  f6
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:6804
msgid ""
"Fred Warshofsky, <citetitle>The Patent Wars</citetitle> (New York: Wiley, "
"1994), 170&ndash;71."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6794
msgid ""
"The obvious answer to these obviously rhetorical questions is no.  In a free"
" society, with a free market, supported by free enterprise and free trade, "
"the government's role is not to support one way of doing business against "
"others. Its role is not to pick winners and protect them against loss. If "
"the government did this generally, then we would never have any progress. As"
" Microsoft chairman Bill Gates wrote in 1991, in a memo criticizing software"
" patents, <quote>established companies have an interest in excluding future "
"competitors.</quote><placeholder type=\"footnote\" id=\"0\"/> And relative "
"to a startup, established companies also have the means. (Think RCA and FM "
"radio.) A world in which competitors with new ideas must fight not only the "
"market but also the government is a world in which competitors with new "
"ideas will not succeed. It is a world of stasis and increasingly "
"concentrated stagnation. It is the Soviet Union under Brezhnev."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6815
msgid ""
"Thus, while it is understandable for industries threatened with new "
"technologies that change the way they do business to look to the government "
"for protection, it is the special duty of policy makers to guarantee that "
"that protection not become a deterrent to progress. It is the duty of policy"
" makers, in other words, to assure that the changes they create, in response"
" to the request of those hurt by changing technology, are changes that "
"preserve the incentives and opportunities for innovation and change."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6826
msgid "speech, freedom of"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:6826
msgid "constitutional guarantee of"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6828
msgid ""
"In the context of laws regulating speech&mdash;which include, obviously, "
"copyright law&mdash;that duty is even stronger. When the industry "
"complaining about changing technologies is asking Congress to respond in a "
"way that burdens speech and creativity, policy makers should be especially "
"wary of the request. It is always a bad deal for the government to get into "
"the business of regulating speech markets. The risks and dangers of that "
"game are precisely why our framers created the First Amendment to our "
"Constitution: <quote>Congress shall make no law &hellip; abridging the "
"freedom of speech.</quote> So when Congress is being asked to pass laws that"
" would <quote>abridge</quote> the freedom of speech, it should ask&mdash; "
"carefully&mdash;whether such regulation is justified."
msgstr ""

#.  PAGE BREAK 140
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6844
msgid ""
"My argument just now, however, has nothing to do with whether the changes "
"that are being pushed by the copyright warriors are "
"<quote>justified.</quote> My argument is about their effect. For before we "
"get to the question of justification, a hard question that depends a great "
"deal upon your values, we should first ask whether we understand the effect "
"of the changes the content industry wants."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6853
msgid "Here's the metaphor that will capture the argument to follow."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6855
msgid "Müller, Paul Hermann"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6856
msgid "DDT"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6857
msgid "insecticide, environmental consequences of"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6860
msgid ""
"In 1873, the chemical DDT was first synthesized. In 1948, Swiss chemist Paul"
" Hermann Müller won the Nobel Prize for his work demonstrating the "
"insecticidal properties of DDT. By the 1950s, the insecticide was widely "
"used around the world to kill disease-carrying pests. It was also used to "
"increase farm production."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6867
msgid ""
"No one doubts that killing disease-carrying pests or increasing crop "
"production is a good thing. No one doubts that the work of Müller was "
"important and valuable and probably saved lives, possibly millions."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6871
msgid "Carson, Rachel"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6872
msgid "Silent Spring (Carson)"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6873
msgid "environmentalism"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6875
msgid ""
"But in 1962, Rachel Carson published <citetitle>Silent Spring</citetitle>, "
"which argued that DDT, whatever its primary benefits, was also having "
"unintended environmental consequences. Birds were losing the ability to "
"reproduce.  Whole chains of the ecology were being destroyed."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6881
msgid ""
"No one set out to destroy the environment. Paul Müller certainly did not aim"
" to harm any birds. But the effort to solve one set of problems produced "
"another set which, in the view of some, was far worse than the problems that"
" were originally attacked. Or more accurately, the problems DDT caused were "
"worse than the problems it solved, at least when considering the other, more"
" environmentally friendly ways to solve the problems that DDT was meant to "
"solve."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6890
msgid "Boyle, James"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:6891
msgid "innovative freedom balanced with fair compensation in"
msgstr ""

#.  f7
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:6897
msgid ""
"See, for example, James Boyle, <quote>A Politics of Intellectual Property: "
"Environmentalism for the Net?</quote> <citetitle>Duke Law "
"Journal</citetitle> 47 (1997): 87."
msgstr ""

#.  PAGE BREAK 141
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6893
msgid ""
"It is to this image precisely that Duke University law professor James Boyle"
" appeals when he argues that we need an <quote>environmentalism</quote> for "
"culture.<placeholder type=\"footnote\" id=\"0\"/> His point, and the point I"
" want to develop in the balance of this chapter, is not that the aims of "
"copyright are flawed. Or that authors should not be paid for their work. Or "
"that music should be given away <quote>for free.</quote> The point is that "
"some of the ways in which we might protect authors will have unintended "
"consequences for the cultural environment, much like DDT had for the natural"
" environment. And just as criticism of DDT is not an endorsement of malaria "
"or an attack on farmers, so, too, is criticism of one particular set of "
"regulations protecting copyright not an endorsement of anarchy or an attack "
"on authors.  It is an environment of creativity that we seek, and we should "
"be aware of our actions' effects on the environment."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6915
msgid ""
"My argument, in the balance of this chapter, tries to map exactly this "
"effect. No doubt the technology of the Internet has had a dramatic effect on"
" the ability of copyright owners to protect their content. But there should "
"also be little doubt that when you add together the changes in copyright law"
" over time, plus the change in technology that the Internet is undergoing "
"just now, the net effect of these changes will not be only that copyrighted "
"work is effectively protected. Also, and generally missed, the net effect of"
" this massive increase in protection will be devastating to the environment "
"for creativity."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6927
msgid ""
"In a line: To kill a gnat, we are spraying DDT with consequences for free "
"culture that will be far more devastating than that this gnat will be lost."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:6936
msgid "Beginnings"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:6937
msgid "on creative property"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:6938 freeculture.xml:11426
msgid "copyright purpose established in"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:6939 freeculture.xml:11135
msgid "Progress Clause of"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:6940 freeculture.xml:11427
msgid "constitutional purpose of"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:6942
msgid "constitutional tradition on"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:6943 freeculture.xml:11136
msgid "Progress Clause"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6946
msgid ""
"America copied English copyright law. Actually, we copied and improved "
"English copyright law. Our Constitution makes the purpose of <quote>creative"
" property</quote> rights clear; its express limitations reinforce the "
"English aim to avoid overly powerful publishers."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:6951
msgid "in constitutional Progress Clause"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6953
msgid ""
"The power to establish <quote>creative property</quote> rights is granted to"
" Congress in a way that, for our Constitution, at least, is very odd. "
"Article I, section 8, clause 8 of our Constitution states that:"
msgstr ""

#.  PAGE BREAK 142
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6958
msgid ""
"Congress has the power to promote the Progress of Science and useful Arts, "
"by securing for limited Times to Authors and Inventors the exclusive Right "
"to their respective Writings and Discoveries.  We can call this the "
"<quote>Progress Clause,</quote> for notice what this clause does not say. It"
" does not say Congress has the power to grant <quote>creative property "
"rights.</quote> It says that Congress has the power <emphasis>to promote "
"progress</emphasis>. The grant of power is its purpose, and its purpose is a"
" public one, not the purpose of enriching publishers, nor even primarily the"
" purpose of rewarding authors."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:6972
msgid "history of American"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6974
msgid ""
"The Progress Clause expressly limits the term of copyrights. As we saw in "
"chapter <xref xrefstyle=\"select: labelnumber\" linkend=\"founders\"/>, the "
"English limited the term of copyright so as to assure that a few would not "
"exercise disproportionate control over culture by exercising "
"disproportionate control over publishing. We can assume the framers followed"
" the English for a similar purpose. Indeed, unlike the English, the framers "
"reinforced that objective, by requiring that copyrights extend <quote>to "
"Authors</quote> only."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6983
msgid "Senate, U.S."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:6984
msgid "structural checks and balances of"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:6985
msgid "electoral college"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:6987
msgid ""
"The design of the Progress Clause reflects something about the "
"Constitution's design in general. To avoid a problem, the framers built "
"structure. To prevent the concentrated power of publishers, they built a "
"structure that kept copyrights away from publishers and kept them short. To "
"prevent the concentrated power of a church, they banned the federal "
"government from establishing a church. To prevent concentrating power in the"
" federal government, they built structures to reinforce the power of the "
"states&mdash;including the Senate, whose members were at the time selected "
"by the states, and an electoral college, also selected by the states, to "
"select the president. In each case, a <emphasis>structure</emphasis> built "
"checks and balances into the constitutional frame, structured to prevent "
"otherwise inevitable concentrations of power."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7004
msgid ""
"I doubt the framers would recognize the regulation we call "
"<quote>copyright</quote> today. The scope of that regulation is far beyond "
"anything they ever considered. To begin to understand what they did, we need"
" to put our <quote>copyright</quote> in context: We need to see how it has "
"changed in the 210 years since they first struck its design."
msgstr ""

#.  PAGE BREAK 143
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7015
msgid ""
"Some of these changes come from the law: some in light of changes in "
"technology, and some in light of changes in technology given a particular "
"concentration of market power. In terms of our model, we started here:"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7026
msgid "We will end here:"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:7029
msgid "<quote>Copyright</quote> today."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:7030
msgid "<graphic fileref=\"images/1442.svg\" align=\"center\" width=\"50%\"></graphic>"
msgstr ""

#.  PAGE BREAK 144
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7033
msgid "Let me explain how."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:7038
msgid "Law: Duration"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:7041 freeculture.xml:7333
msgid "Copyright Act (1790)"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7042
msgid "common law protections of"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7043
msgid "balance of U.S. content in"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:7059
msgid "Crosskey, William W."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7053
msgid ""
"William W. Crosskey, <citetitle>Politics and the Constitution in the History"
" of the United States</citetitle> (London: Cambridge University Press, "
"1953), vol. 1, 485&ndash;86: <quote>extinguish[ing], by plain implication of"
" `the supreme Law of the Land,' <emphasis>the perpetual rights which authors"
" had, or were supposed by some to have, under the Common "
"Law</emphasis></quote> (emphasis added).  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7045
msgid ""
"When the first Congress enacted laws to protect creative property, it faced "
"the same uncertainty about the status of creative property that the English "
"had confronted in 1774. Many states had passed laws protecting creative "
"property, and some believed that these laws simply supplemented common law "
"rights that already protected creative authorship.<placeholder "
"type=\"footnote\" id=\"0\"/> This meant that there was no guaranteed public "
"domain in the United States in 1790. If copyrights were protected by the "
"common law, then there was no simple way to know whether a work published in"
" the United States was controlled or free. Just as in England, this "
"lingering uncertainty would make it hard for publishers to rely upon a "
"public domain to reprint and distribute works."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7069
msgid "federal vs. state"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7071
msgid ""
"That uncertainty ended after Congress passed legislation granting "
"copyrights. Because federal law overrides any contrary state law, federal "
"protections for copyrighted works displaced any state law protections.  Just"
" as in England the Statute of Anne eventually meant that the copyrights for "
"all English works expired, a federal statute meant that any state copyrights"
" expired as well."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7080
msgid ""
"In 1790, Congress enacted the first copyright law. It created a federal "
"copyright and secured that copyright for fourteen years. If the author was "
"alive at the end of that fourteen years, then he could opt to renew the "
"copyright for another fourteen years. If he did not renew the copyright, his"
" work passed into the public domain."
msgstr ""

#.  f9
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7096
msgid ""
"Although 13,000 titles were published in the United States from 1790 to "
"1799, only 556 copyright registrations were filed; John Tebbel, <citetitle>A"
" History of Book Publishing in the United States</citetitle>, vol. 1, "
"<citetitle>The Creation of an Industry, 1630&ndash;1865</citetitle> (New "
"York: Bowker, 1972), 141. Of the 21,000 imprints recorded before 1790, only "
"twelve were copyrighted under the 1790 act; William J. Maher, "
"<citetitle>Copyright Term, Retrospective Extension and the Copyright Law of "
"1790 in Historical Context</citetitle>, 7&ndash;10 (2002), available at "
"<ulink url=\"http://free-culture.cc/notes/\">link #25</ulink>.  Thus, the "
"overwhelming majority of works fell immediately into the public domain. Even"
" those works that were copyrighted fell into the public domain quickly, "
"because the term of copyright was short. The initial term of copyright was "
"fourteen years, with the option of renewal for an additional fourteen years."
" Copyright Act of May 31, 1790, §1, 1 stat. 124."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7088
msgid ""
"While there were many works created in the United States in the first ten "
"years of the Republic, only 5 percent of the works were actually registered "
"under the federal copyright regime. Of all the work created in the United "
"States both before 1790 and from 1790 through 1800, 95 percent immediately "
"passed into the public domain; the balance would pass into the pubic domain "
"within twenty-eight years at most, and more likely within fourteen "
"years.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 145
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7114
msgid ""
"This system of renewal was a crucial part of the American system of "
"copyright. It assured that the maximum terms of copyright would be granted "
"only for works where they were wanted. After the initial term of fourteen "
"years, if it wasn't worth it to an author to renew his copyright, then it "
"wasn't worth it to society to insist on the copyright, either."
msgstr ""

#.  f10
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7129
msgid ""
"Few copyright holders ever chose to renew their copyrights. For instance, of"
" the 25,006 copyrights registered in 1883, only 894 were renewed in 1910. "
"For a year-by-year analysis of copyright renewal rates, see Barbara A. "
"Ringer, <quote>Study No. 31: Renewal of Copyright,</quote> "
"<citetitle>Studies on Copyright</citetitle>, vol. 1 (New York: Practicing "
"Law Institute, 1963), 618. For a more recent and comprehensive analysis, see"
" William M. Landes and Richard A.  Posner, <quote>Indefinitely Renewable "
"Copyright,</quote> <citetitle>University of Chicago Law Review</citetitle> "
"70 (2003): 471, 498&ndash;501, and accompanying figures."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7123
msgid ""
"Fourteen years may not seem long to us, but for the vast majority of "
"copyright owners at that time, it was long enough: Only a small minority of "
"them renewed their copyright after fourteen years; the balance allowed their"
" work to pass into the public domain.<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#.  f11
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7147
msgid "See Ringer, ch. 9, n. 2."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7143
msgid ""
"Even today, this structure would make sense. Most creative work has an "
"actual commercial life of just a couple of years. Most books fall out of "
"print after one year.<placeholder type=\"footnote\" id=\"0\"/> When that "
"happens, the used books are traded free of copyright regulation. Thus the "
"books are no longer <emphasis>effectively</emphasis> controlled by "
"copyright. The only practical commercial use of the books at that time is to"
" sell the books as used books; that use&mdash;because it does not involve "
"publication&mdash;is effectively free."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:7155 freeculture.xml:11073
msgid "copyright terms extended by"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:7156 freeculture.xml:11075
msgid "term extensions in"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7158
msgid ""
"In the first hundred years of the Republic, the term of copyright was "
"changed once. In 1831, the term was increased from a maximum of 28 years to "
"a maximum of 42 by increasing the initial term of copyright from 14 years to"
" 28 years. In the next fifty years of the Republic, the term increased once "
"again. In 1909, Congress extended the renewal term of 14 years to 28 years, "
"setting a maximum term of 56 years."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:7165 freeculture.xml:7200 freeculture.xml:11099
#: freeculture.xml:15379
msgid "Sonny Bono Copyright Term Extension Act (CTEA) (1998)"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:7166 freeculture.xml:11079
msgid "future patents vs. future copyrights in"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7168
msgid ""
"Then, beginning in 1962, Congress started a practice that has defined "
"copyright law since. Eleven times in the last forty years, Congress has "
"extended the terms of existing copyrights; twice in those forty years, "
"Congress extended the term of future copyrights. Initially, the extensions "
"of existing copyrights were short, a mere one to two years.  In 1976, "
"Congress extended all existing copyrights by nineteen years.  And in 1998, "
"in the Sonny Bono Copyright Term Extension Act, Congress extended the term "
"of existing and future copyrights by twenty years."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:7177 freeculture.xml:11078 freeculture.xml:11079
#: freeculture.xml:13166 freeculture.xml:13647
msgid "patents"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:7177 freeculture.xml:11078
msgid "in public domain"
msgstr ""

#.  PAGE BREAK 146
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7179
msgid ""
"The effect of these extensions is simply to toll, or delay, the passing of "
"works into the public domain. This latest extension means that the public "
"domain will have been tolled for thirty-nine out of fifty-five years, or 70 "
"percent of the time since 1962. Thus, in the twenty years after the Sonny "
"Bono Act, while one million patents will pass into the public domain, zero "
"copyrights will pass into the public domain by virtue of the expiration of a"
" copyright term."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7191
msgid ""
"The effect of these extensions has been exacerbated by another, little-"
"noticed change in the copyright law. Remember I said that the framers "
"established a two-part copyright regime, requiring a copyright owner to "
"renew his copyright after an initial term. The requirement of renewal meant "
"that works that no longer needed copyright protection would pass more "
"quickly into the public domain. The works remaining under protection would "
"be those that had some continuing commercial value."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7201
msgid "of natural authors vs. corporations"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:7202 freeculture.xml:13320
msgid "corporations"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7202
msgid "copyright terms for"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7204
msgid ""
"The United States abandoned this sensible system in 1976. For all works "
"created after 1978, there was only one copyright term&mdash;the maximum "
"term. For <quote>natural</quote> authors, that term was life plus fifty "
"years. For corporations, the term was seventy-five years. Then, in 1992, "
"Congress abandoned the renewal requirement for all works created before "
"1978. All works still under copyright would be accorded the maximum term "
"then available. After the Sonny Bono Act, that term was ninety-five years."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7214
msgid ""
"This change meant that American law no longer had an automatic way to assure"
" that works that were no longer exploited passed into the public domain. And"
" indeed, after these changes, it is unclear whether it is even possible to "
"put works into the public domain. The public domain is orphaned by these "
"changes in copyright law. Despite the requirement that terms be "
"<quote>limited,</quote> we have no evidence that anything will limit them."
msgstr ""

#.  f12
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7233
msgid ""
"These statistics are understated. Between the years 1910 and 1962 (the first"
" year the renewal term was extended), the average term was never more than "
"thirty-two years, and averaged thirty years. See Landes and Posner, "
"<quote>Indefinitely Renewable Copyright,</quote> loc. cit."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7225
msgid ""
"The effect of these changes on the average duration of copyright is "
"dramatic. In 1973, more than 85 percent of copyright owners failed to renew "
"their copyright. That meant that the average term of copyright in 1973 was "
"just 32.2 years. Because of the elimination of the renewal requirement, the "
"average term of copyright is now the maximum term.  In thirty years, then, "
"the average term has tripled, from 32.2 years to 95 years.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:7247
msgid "Law: Scope"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7248 freeculture.xml:7467
msgid "scope of"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7250
msgid ""
"The <quote>scope</quote> of a copyright is the range of rights granted by "
"the law.  The scope of American copyright has changed dramatically. Those "
"changes are not necessarily bad. But we should understand the extent of the "
"changes if we're to keep this debate in context."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7256
msgid "historical shift in copyright coverage of"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7258
msgid ""
"In 1790, that scope was very narrow. Copyright covered only <quote>maps, "
"charts, and books.</quote> That means it didn't cover, for example, music or"
" architecture. More significantly, the right granted by a copyright gave the"
" author the exclusive right to <quote>publish</quote> copyrighted works. "
"That means someone else violated the copyright only if he republished the "
"work without the copyright owner's permission. Finally, the right granted by"
" a copyright was an exclusive right to that particular book. The right did "
"not extend to what lawyers call <quote>derivative works.</quote> It would "
"not, therefore, interfere with the right of someone other than the author to"
" translate a copyrighted book, or to adapt the story to a different form "
"(such as a drama based on a published book)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7271
msgid ""
"This, too, has changed dramatically. While the contours of copyright today "
"are extremely hard to describe simply, in general terms, the right covers "
"practically any creative work that is reduced to a tangible form. It covers "
"music as well as architecture, drama as well as computer programs. It gives "
"the copyright owner of that creative work not only the exclusive right to "
"<quote>publish</quote> the work, but also the exclusive right of control "
"over any <quote>copies</quote> of that work. And most significant for our "
"purposes here, the right gives the copyright owner control over not only his"
" or her particular work, but also any <quote>derivative work</quote> that "
"might grow out of the original work. In this way, the right covers more "
"creative work, protects the creative work more broadly, and protects works "
"that are based in a significant way on the initial creative work."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7285
msgid "marking of"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:7286
msgid "formalities"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7287
msgid "registration requirement of"
msgstr ""

#.  PAGE BREAK 148
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7289
msgid ""
"At the same time that the scope of copyright has expanded, procedural "
"limitations on the right have been relaxed. I've already described the "
"complete removal of the renewal requirement in 1992. In addition to the "
"renewal requirement, for most of the history of American copyright law, "
"there was a requirement that a work be registered before it could receive "
"the protection of a copyright. There was also a requirement that any "
"copyrighted work be marked either with that famous &copy; or the word "
"<emphasis>copyright</emphasis>. And for most of the history of American "
"copyright law, there was a requirement that works be deposited with the "
"government before a copyright could be secured."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7304
msgid ""
"The reason for the registration requirement was the sensible understanding "
"that for most works, no copyright was required. Again, in the first ten "
"years of the Republic, 95 percent of works eligible for copyright were never"
" copyrighted. Thus, the rule reflected the norm: Most works apparently "
"didn't need copyright, so registration narrowed the regulation of the law to"
" the few that did. The same reasoning justified the requirement that a work "
"be marked as copyrighted&mdash;that way it was easy to know whether a "
"copyright was being claimed. The requirement that works be deposited was to "
"assure that after the copyright expired, there would be a copy of the work "
"somewhere so that it could be copied by others without locating the original"
" author."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7317
msgid "European"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7319
msgid ""
"All of these <quote>formalities</quote> were abolished in the American "
"system when we decided to follow European copyright law. There is no "
"requirement that you register a work to get a copyright; the copyright now "
"is automatic; the copyright exists whether or not you mark your work with a "
"&copy;; and the copyright exists whether or not you actually make a copy "
"available for others to copy."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7330
msgid ""
"Consider a practical example to understand the scope of these differences."
msgstr ""

#.  f13
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7342
msgid ""
"See Thomas Bender and David Sampliner, <quote>Poets, Pirates, and the "
"Creation of American Literature,</quote> 29 <citetitle>New York University "
"Journal of International Law and Politics</citetitle> 255 (1997), and James "
"Gilraeth, ed., Federal Copyright Records, 1790&ndash;1800 (U.S. G.P.O., "
"1987)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7335
msgid ""
"If, in 1790, you wrote a book and you were one of the 5 percent who actually"
" copyrighted that book, then the copyright law protected you against another"
" publisher's taking your book and republishing it without your permission. "
"The aim of the act was to regulate publishers so as to prevent that kind of "
"unfair competition. In 1790, there were 174 publishers in the United "
"States.<placeholder type=\"footnote\" id=\"0\"/> The Copyright Act was thus "
"a tiny regulation of a tiny proportion of a tiny part of the creative market"
" in the United States&mdash;publishers."
msgstr ""

#.  PAGE BREAK 149
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7357
msgid ""
"The act left other creators totally unregulated. If I copied your poem by "
"hand, over and over again, as a way to learn it by heart, my act was totally"
" unregulated by the 1790 act. If I took your novel and made a play based "
"upon it, or if I translated it or abridged it, none of those activities were"
" regulated by the original copyright act. These creative activities remained"
" free, while the activities of publishers were restrained."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7367
msgid ""
"Today the story is very different: If you write a book, your book is "
"automatically protected. Indeed, not just your book. Every e-mail, every "
"note to your spouse, every doodle, <emphasis>every</emphasis> creative act "
"that's reduced to a tangible form&mdash;all of this is automatically "
"copyrighted.  There is no need to register or mark your work. The protection"
" follows the creation, not the steps you take to protect it."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7376
msgid ""
"That protection gives you the right (subject to a narrow range of fair use "
"exceptions) to control how others copy the work, whether they copy it to "
"republish it or to share an excerpt."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7381
msgid ""
"That much is the obvious part. Any system of copyright would control "
"competing publishing. But there's a second part to the copyright of today "
"that is not at all obvious. This is the protection of <quote>derivative "
"rights.</quote> If you write a book, no one can make a movie out of your "
"book without permission. No one can translate it without permission.  "
"CliffsNotes can't make an abridgment unless permission is granted. All of "
"these derivative uses of your original work are controlled by the copyright "
"holder. The copyright, in other words, is now not just an exclusive right to"
" your writings, but an exclusive right to your writings and a large "
"proportion of the writings inspired by them."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7396
msgid ""
"It is this derivative right that would seem most bizarre to our framers, "
"though it has become second nature to us. Initially, this expansion was "
"created to deal with obvious evasions of a narrower copyright.  If I write a"
" book, can you change one word and then claim a copyright in a new and "
"different book? Obviously that would make a joke of the copyright, so the "
"law was properly expanded to include those slight modifications as well as "
"the verbatim original work."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7418
msgid ""
"Jonathan Zittrain, <quote>The Copyright Cage,</quote> <citetitle>Legal "
"Affairs</citetitle>, July/August 2003, available at <ulink url=\"http"
"://free-culture.cc/notes/\">link #26</ulink>.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7408
msgid ""
"In preventing that joke, the law created an astonishing power within a free "
"culture&mdash;at least, it's astonishing when you understand that the law "
"applies not just to the commercial publisher but to anyone with a computer. "
"I understand the wrong in duplicating and selling someone else's work. But "
"whatever <emphasis>that</emphasis> wrong is, transforming someone else's "
"work is a different wrong. Some view transformation as no wrong at "
"all&mdash;they believe that our law, as the framers penned it, should not "
"protect derivative rights at all.<placeholder type=\"footnote\" id=\"0\"/> "
"Whether or not you go that far, it seems plain that whatever wrong is "
"involved is fundamentally different from the wrong of direct piracy."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:7440
msgid "Rubenfeld, Jeb"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7433
msgid ""
"Professor Rubenfeld has presented a powerful constitutional argument about "
"the difference that copyright law should draw (from the perspective of the "
"First Amendment) between mere <quote>copies</quote> and derivative works. "
"See Jed Rubenfeld, <quote>The Freedom of Imagination: Copyright's "
"Constitutionality,</quote> <citetitle>Yale Law Journal</citetitle> 112 "
"(2002): 1&ndash;60 (see especially pp. 53&ndash;59).  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7428
msgid ""
"Yet copyright law treats these two different wrongs in the same way. I can "
"go to court and get an injunction against your pirating my book. I can go to"
" court and get an injunction against your transformative use of my "
"book.<placeholder type=\"footnote\" id=\"0\"/> These two different uses of "
"my creative work are treated the same."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7448
msgid ""
"This again may seem right to you. If I wrote a book, then why should you be "
"able to write a movie that takes my story and makes money from it without "
"paying me or crediting me? Or if Disney creates a creature called "
"<quote>Mickey Mouse,</quote> why should you be able to make Mickey Mouse "
"toys and be the one to trade on the value that Disney originally created?"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7456
msgid ""
"These are good arguments, and, in general, my point is not that the "
"derivative right is unjustified. My aim just now is much narrower: simply to"
" make clear that this expansion is a significant change from the rights "
"originally granted."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:7465
msgid "Law and Architecture: Reach"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7466 freeculture.xml:7528 freeculture.xml:7741
msgid "copies as core issue of"
msgstr ""

#.  f16
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7474
msgid ""
"This is a simplification of the law, but not much of one. The law certainly "
"regulates more than <quote>copies</quote>&mdash;a public performance of a "
"copyrighted song, for example, is regulated even though performance per se "
"doesn't make a copy; 17 <citetitle>United States Code</citetitle>, section "
"106(4). And it certainly sometimes doesn't regulate a <quote>copy</quote>; "
"17 <citetitle>United States Code</citetitle>, section 112(a). But the "
"presumption under the existing law (which regulates <quote>copies;</quote> "
"17 <citetitle>United States Code</citetitle>, section 102) is that if there "
"is a copy, there is a right."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7469
msgid ""
"Whereas originally the law regulated only publishers, the change in "
"copyright's scope means that the law today regulates publishers, users, and "
"authors. It regulates them because all three are capable of making copies, "
"and the core of the regulation of copyright law is copies.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7485
msgid "other property rights vs."
msgstr ""

#.  PAGE BREAK 151
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7488
msgid ""
"<quote>Copies.</quote> That certainly sounds like the obvious thing for "
"<emphasis>copy</emphasis>right law to regulate. But as with Jack Valenti's "
"argument at the start of this chapter, that <quote>creative property</quote>"
" deserves the <quote>same rights</quote> as all other property, it is the "
"<emphasis>obvious</emphasis> that we need to be most careful about. For "
"while it may be obvious that in the world before the Internet, copies were "
"the obvious trigger for copyright law, upon reflection, it should be obvious"
" that in the world with the Internet, copies should <emphasis>not</emphasis>"
" be the trigger for copyright law. More precisely, they should not "
"<emphasis>always</emphasis> be the trigger for copyright law."
msgstr ""

#.  f17
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7507
msgid ""
"Thus, my argument is not that in each place that copyright law extends, we "
"should repeal it. It is instead that we should have a good argument for its "
"extending where it does, and should not determine its reach on the basis of "
"arbitrary and automatic changes caused by technology."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7502
msgid ""
"This is perhaps the central claim of this book, so let me take this very "
"slowly so that the point is not easily missed. My claim is that the Internet"
" should at least force us to rethink the conditions under which the law of "
"copyright automatically applies,<placeholder type=\"footnote\" id=\"0\"/> "
"because it is clear that the current reach of copyright was never "
"contemplated, much less chosen, by the legislators who enacted copyright "
"law."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7520
msgid ""
"We can see this point abstractly by beginning with this largely empty "
"circle."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:7524
msgid "All potential uses of a book."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:7525
msgid "<graphic fileref=\"images/1521.svg\" align=\"center\" width=\"50%\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7527
msgid "three types of uses of"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7529
msgid "copyright applicability altered by technology of"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7530
msgid "copyright intent altered by"
msgstr ""

#.  PAGE BREAK 152
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7535
msgid ""
"Think about a book in real space, and imagine this circle to represent all "
"its potential <emphasis>uses</emphasis>. Most of these uses are unregulated "
"by copyright law, because the uses don't create a copy. If you read a book, "
"that act is not regulated by copyright law. If you give someone the book, "
"that act is not regulated by copyright law. If you resell a book, that act "
"is not regulated (copyright law expressly states that after the first sale "
"of a book, the copyright owner can impose no further conditions on the "
"disposition of the book). If you sleep on the book or use it to hold up a "
"lamp or let your puppy chew it up, those acts are not regulated by copyright"
" law, because those acts do not make a copy."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:7548
msgid "Examples of unregulated uses of a book."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:7549
msgid "<graphic fileref=\"images/1531.png\" align=\"center\" width=\"50%\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7552
msgid ""
"Obviously, however, some uses of a copyrighted book are regulated by "
"copyright law. Republishing the book, for example, makes a copy. It is "
"therefore regulated by copyright law. Indeed, this particular use stands at "
"the core of this circle of possible uses of a copyrighted work. It is the "
"paradigmatic use properly regulated by copyright regulation (see diagram "
"<xref xrefstyle=\"select: labelnumber\" linkend=\"fig-1541\"/>)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7564
msgid ""
"Finally, there is a tiny sliver of otherwise regulated copying uses that "
"remain unregulated because the law considers these <quote>fair uses.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:7569
msgid ""
"Republishing stands at the core of this circle of possible uses of a "
"copyrighted work."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:7570
msgid "<graphic fileref=\"images/1541.svg\" align=\"center\" width=\"50%\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7575
msgid ""
"These are uses that themselves involve copying, but which the law treats as "
"unregulated because public policy demands that they remain unregulated.  You"
" are free to quote from this book, even in a review that is quite negative, "
"without my permission, even though that quoting makes a copy. That copy "
"would ordinarily give the copyright owner the exclusive right to say whether"
" the copy is allowed or not, but the law denies the owner any exclusive "
"right over such <quote>fair uses</quote> for public policy (and possibly "
"First Amendment) reasons."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:7585
msgid "Unregulated copying considered <quote>fair uses.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:7586
msgid "<graphic fileref=\"images/1542.png\" align=\"center\" width=\"50%\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:7590
msgid ""
"Uses that before were presumptively unregulated are now presumptively "
"regulated."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:7591
msgid "<graphic fileref=\"images/1551.png\" align=\"center\" width=\"50%\"></graphic>"
msgstr ""

#.  PAGE BREAK 154
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7596
msgid ""
"In real space, then, the possible uses of a book are divided into three "
"sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that"
" are nonetheless deemed <quote>fair</quote> regardless of the copyright "
"owner's views."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7601 freeculture.xml:7885 freeculture.xml:10149
msgid "on Internet"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7603 freeculture.xml:7680
msgid "Internet burdens on"
msgstr ""

#.  f18
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7608
msgid ""
"I don't mean <quote>nature</quote> in the sense that it couldn't be "
"different, but rather that its present instantiation entails a copy. Optical"
" networks need not make copies of content they transmit, and a digital "
"network could be designed to delete anything it copies so that the same "
"number of copies remain."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7605
msgid ""
"Enter the Internet&mdash;a distributed, digital network where every use of a"
" copyrighted work produces a copy.<placeholder type=\"footnote\" id=\"0\"/> "
"And because of this single, arbitrary feature of the design of a digital "
"network, the scope of category 1 changes dramatically. Uses that before were"
" presumptively unregulated are now presumptively regulated. No longer is "
"there a set of presumptively unregulated uses that define a freedom "
"associated with a copyrighted work. Instead, each use is now subject to the "
"copyright, because each use also makes a copy&mdash;category 1 gets sucked "
"into category 2. And those who would defend the unregulated uses of "
"copyrighted work must look exclusively to category 3, fair uses, to bear the"
" burden of this shift."
msgstr ""

#.  PAGE BREAK 155
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7628
msgid ""
"So let's be very specific to make this general point clear. Before the "
"Internet, if you purchased a book and read it ten times, there would be no "
"plausible <emphasis>copyright</emphasis>-related argument that the copyright"
" owner could make to control that use of her book. Copyright law would have "
"nothing to say about whether you read the book once, ten times, or every "
"night before you went to bed. None of those instances of "
"use&mdash;reading&mdash; could be regulated by copyright law because none of"
" those uses produced a copy."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:7639
msgid "e-books"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7640
msgid "technological developments and"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7642
msgid ""
"But the same book as an e-book is effectively governed by a different set of"
" rules. Now if the copyright owner says you may read the book only once or "
"only once a month, then <emphasis>copyright law</emphasis> would aid the "
"copyright owner in exercising this degree of control, because of the "
"accidental feature of copyright law that triggers its application upon there"
" being a copy. Now if you read the book ten times and the license says you "
"may read it only five times, then whenever you read the book (or any portion"
" of it) beyond the fifth time, you are making a copy of the book contrary to"
" the copyright owner's wish."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7654
msgid ""
"There are some people who think this makes perfect sense. My aim just now is"
" not to argue about whether it makes sense or not. My aim is only to make "
"clear the change. Once you see this point, a few other points also become "
"clear:"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7660
msgid ""
"First, making category 1 disappear is not anything any policy maker ever "
"intended. Congress did not think through the collapse of the presumptively "
"unregulated uses of copyrighted works. There is no evidence at all that "
"policy makers had this idea in mind when they allowed our policy here to "
"shift. Unregulated uses were an important part of free culture before the "
"Internet."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7669
msgid ""
"Second, this shift is especially troubling in the context of transformative "
"uses of creative content. Again, we can all understand the wrong in "
"commercial piracy. But the law now purports to regulate "
"<emphasis>any</emphasis> transformation you make of creative work using a "
"machine. <quote>Copy and paste</quote> and <quote>cut and paste</quote> "
"become crimes. Tinkering with a story and releasing it to others exposes the"
" tinkerer to at least a requirement of justification.  However troubling the"
" expansion with respect to copying a particular work, it is extraordinarily "
"troubling with respect to transformative uses of creative work."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7682
msgid "fair use vs."
msgstr ""

#.  PAGE BREAK 156
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7684
msgid ""
"Third, this shift from category 1 to category 2 puts an extraordinary burden"
" on category 3 (<quote>fair use</quote>) that fair use never before had to "
"bear.  If a copyright owner now tried to control how many times I could read"
" a book on-line, the natural response would be to argue that this is a "
"violation of my fair use rights. But there has never been any litigation "
"about whether I have a fair use right to read, because before the Internet, "
"reading did not trigger the application of copyright law and hence the need "
"for a fair use defense. The right to read was effectively protected before "
"because reading was not regulated."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7703
msgid ""
"This point about fair use is totally ignored, even by advocates for free "
"culture. We have been cornered into arguing that our rights depend upon fair"
" use&mdash;never even addressing the earlier question about the expansion in"
" effective regulation. A thin protection grounded in fair use makes sense "
"when the vast majority of uses are <emphasis>unregulated</emphasis>. But "
"when everything becomes presumptively regulated, then the protections of "
"fair use are not enough."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:7719
msgid "Video Pipeline"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:7721 freeculture.xml:15276
msgid "film industry"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7721
msgid "trailer advertisements of"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7723
msgid ""
"The case of Video Pipeline is a good example. Video Pipeline was in the "
"business of making <quote>trailer</quote> advertisements for movies "
"available to video stores. The video stores displayed the trailers as a way "
"to sell videos. Video Pipeline got the trailers from the film distributors, "
"put the trailers on tape, and sold the tapes to the retail stores."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:7729 freeculture.xml:7804 freeculture.xml:14022
msgid "browsing"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7731
msgid ""
"The company did this for about fifteen years. Then, in 1997, it began to "
"think about the Internet as another way to distribute these previews.  The "
"idea was to expand their <quote>selling by sampling</quote> technique by "
"giving on-line stores the same ability to enable <quote>browsing.</quote> "
"Just as in a bookstore you can read a few pages of a book before you buy the"
" book, so, too, you would be able to sample a bit from the movie on-line "
"before you bought it."
msgstr ""

#.  PAGE BREAK 157
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7744
msgid ""
"In 1998, Video Pipeline informed Disney and other film distributors that it "
"intended to distribute the trailers through the Internet (rather than "
"sending the tapes) to distributors of their videos. Two years later, Disney "
"told Video Pipeline to stop. The owner of Video Pipeline asked Disney to "
"talk about the matter&mdash;he had built a business on distributing this "
"content as a way to help sell Disney films; he had customers who depended "
"upon his delivering this content. Disney would agree to talk only if Video "
"Pipeline stopped the distribution immediately.  Video Pipeline thought it "
"was within their <quote>fair use</quote> rights to distribute the clips as "
"they had. So they filed a lawsuit to ask the court to declare that these "
"rights were in fact their rights."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7761
msgid "willful infringement findings in"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:7762
msgid "willful infringement"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7764
msgid ""
"Disney countersued&mdash;for $100 million in damages. Those damages were "
"predicated upon a claim that Video Pipeline had <quote>willfully "
"infringed</quote> on Disney's copyright. When a court makes a finding of "
"willful infringement, it can award damages not on the basis of the actual "
"harm to the copyright owner, but on the basis of an amount set in the "
"statute. Because Video Pipeline had distributed seven hundred clips of "
"Disney movies to enable video stores to sell copies of those movies, Disney "
"was now suing Video Pipeline for $100 million."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7774
msgid ""
"Disney has the right to control its property, of course. But the video "
"stores that were selling Disney's films also had some sort of right to be "
"able to sell the films that they had bought from Disney. Disney's claim in "
"court was that the stores were allowed to sell the films and they were "
"permitted to list the titles of the films they were selling, but they were "
"not allowed to show clips of the films as a way of selling them without "
"Disney's permission."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:7782
msgid "first-sale doctrine"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7784
msgid ""
"Now, you might think this is a close case, and I think the courts would "
"consider it a close case. My point here is to map the change that gives "
"Disney this power. Before the Internet, Disney couldn't really control how "
"people got access to their content. Once a video was in the marketplace, the"
" <quote>first-sale doctrine</quote> would free the seller to use the video "
"as he wished, including showing portions of it in order to engender sales of"
" the entire movie video. But with the Internet, it becomes possible for "
"Disney to centralize control over access to this content. Because each use "
"of the Internet produces a copy, use on the Internet becomes subject to the "
"copyright owner's control. The technology expands the scope of effective "
"control, because the technology builds a copy into every transaction."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:7803
msgid "Barnes &amp; Noble"
msgstr ""

#.  PAGE BREAK 158
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7808
msgid ""
"No doubt, a potential is not yet an abuse, and so the potential for control "
"is not yet the abuse of control. Barnes &amp; Noble has the right to say you"
" can't touch a book in their store; property law gives them that right.  But"
" the market effectively protects against that abuse. If Barnes &amp; Noble "
"banned browsing, then consumers would choose other bookstores.  Competition "
"protects against the extremes. And it may well be (my argument so far does "
"not even question this) that competition would prevent any similar danger "
"when it comes to copyright. Sure, publishers exercising the rights that "
"authors have assigned to them might try to regulate how many times you read "
"a book, or try to stop you from sharing the book with anyone. But in a "
"competitive market such as the book market, the dangers of this happening "
"are quite slight."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7823
msgid ""
"Again, my aim so far is simply to map the changes that this changed "
"architecture enables. Enabling technology to enforce the control of "
"copyright means that the control of copyright is no longer defined by "
"balanced policy. The control of copyright is simply what private owners "
"choose. In some contexts, at least, that fact is harmless. But in some "
"contexts it is a recipe for disaster."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:7832
msgid "Architecture and Law: Force"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7834
msgid ""
"The disappearance of unregulated uses would be change enough, but a second "
"important change brought about by the Internet magnifies its significance. "
"This second change does not affect the reach of copyright regulation; it "
"affects how such regulation is enforced."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7839
msgid "technology as automatic enforcer of"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:7840
msgid "copyright enforcement controlled by"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7842
msgid ""
"In the world before digital technology, it was generally the law that "
"controlled whether and how someone was regulated by copyright law.  The law,"
" meaning a court, meaning a judge: In the end, it was a human, trained in "
"the tradition of the law and cognizant of the balances that tradition "
"embraced, who said whether and how the law would restrict your freedom."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:7849
msgid "Casablanca"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:7850 freeculture.xml:8021
msgid "Marx Brothers"
msgstr ""

#.  f19
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7861
msgid ""
"See David Lange, <quote>Recognizing the Public Domain,</quote> "
"<citetitle>Law and Contemporary Problems</citetitle> 44 (1981): "
"172&ndash;73."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7853
msgid ""
"There's a famous story about a battle between the Marx Brothers and Warner "
"Brothers. The Marxes intended to make a parody of "
"<citetitle>Casablanca</citetitle>. Warner Brothers objected. They wrote a "
"nasty letter to the Marxes, warning them that there would be serious legal "
"consequences if they went forward with their plan.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7870
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> Ibid. See also Vaidhyanathan, "
"<citetitle>Copyrights and Copywrongs</citetitle>, 1&ndash;3."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7866
msgid ""
"This led the Marx Brothers to respond in kind. They warned Warner Brothers "
"that the Marx Brothers <quote>were brothers long before you "
"were.</quote><placeholder type=\"footnote\" id=\"0\"/> The Marx Brothers "
"therefore owned the word <citetitle>brothers</citetitle>, and if Warner "
"Brothers insisted on trying to control <citetitle>Casablanca</citetitle>, "
"then the Marx Brothers would insist on control over "
"<citetitle>brothers</citetitle>."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7880
msgid ""
"An absurd and hollow threat, of course, because Warner Brothers, like the "
"Marx Brothers, knew that no court would ever enforce such a silly claim. "
"This extremism was irrelevant to the real freedoms anyone (including Warner "
"Brothers) enjoyed."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7887
msgid ""
"On the Internet, however, there is no check on silly rules, because on the "
"Internet, increasingly, rules are enforced not by a human but by a machine: "
"Increasingly, the rules of copyright law, as interpreted by the copyright "
"owner, get built into the technology that delivers copyrighted content. It "
"is code, rather than law, that rules. And the problem with code regulations "
"is that, unlike law, code has no shame. Code would not get the humor of the "
"Marx Brothers. The consequence of that is not at all funny."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:7899
msgid "Adobe eBook Reader"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7901
msgid "Consider the life of my Adobe eBook Reader."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7904
msgid ""
"An e-book is a book delivered in electronic form. An Adobe eBook is not a "
"book that Adobe has published; Adobe simply produces the software that "
"publishers use to deliver e-books. It provides the technology, and the "
"publisher delivers the content by using the technology."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7911
msgid ""
"On the next page (<xref linkend=\"fig-1611\"/>) is a picture of an old "
"version of my Adobe eBook Reader."
msgstr ""

#.  PAGE BREAK 160
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7915
msgid ""
"As you can see, I have a small collection of e-books within this e-book "
"library. Some of these books reproduce content that is in the public domain:"
" <citetitle>Middlemarch</citetitle>, for example, is in the public domain.  "
"Some of them reproduce content that is not in the public domain: My own book"
" <citetitle>The Future of Ideas</citetitle> is not yet within the public "
"domain.  Consider <citetitle>Middlemarch</citetitle> first. If you click on "
"my e-book copy of <citetitle>Middlemarch</citetitle>, you'll see a fancy "
"cover, and then a button at the bottom called Permissions."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:7928
msgid "Picture of an old version of Adobe eBook Reader"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:7929
msgid "<graphic fileref=\"images/1611.png\" align=\"center\" width=\"50%\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7932
msgid ""
"If you click on the Permissions button, you'll see a list of the permissions"
" that the publisher purports to grant with this book."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:7936
msgid "List of the permissions that the publisher purports to grant."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:7937
msgid "<graphic fileref=\"images/1612.png\" align=\"center\" width=\"50%\"></graphic>"
msgstr ""

#.  PAGE BREAK 161
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7941
msgid ""
"According to my eBook Reader, I have the permission to copy to the clipboard"
" of the computer ten text selections every ten days. (So far, I've copied no"
" text to the clipboard.)  I also have the permission to print ten pages from"
" the book every ten days. Lastly, I have the permission to use the Read "
"Aloud button to hear <citetitle>Middlemarch</citetitle> read aloud through "
"the computer."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:7948
msgid "Aristotle"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:7949
msgid "<citetitle>Politics</citetitle>, (Aristotle)"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7951
msgid ""
"Here's the e-book for another work in the public domain (including the "
"translation): Aristotle's <citetitle>Politics</citetitle>."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:7955
msgid "E-book of Aristotle;s <quote>Politics</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:7956
msgid "<graphic fileref=\"images/1621.png\" align=\"center\" width=\"50%\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7959
msgid ""
"According to its permissions, no printing or copying is permitted at all. "
"But fortunately, you can use the Read Aloud button to hear the book."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:7964
msgid "List of the permissions for Aristotle;s <quote>Politics</quote>."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:7965
msgid "<graphic fileref=\"images/1622.png\" align=\"center\" width=\"50%\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:7967 freeculture.xml:9820
msgid "Future of Ideas, The (Lessig)"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:7968 freeculture.xml:9821 freeculture.xml:11137
#: freeculture.xml:11183 freeculture.xml:13476
msgid "Lessig, Lawrence"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7970
msgid ""
"Finally (and most embarrassingly), here are the permissions for the original"
" e-book version of my last book, <citetitle>The Future of Ideas</citetitle>:"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:7976
msgid "List of the permissions for <quote>The Future of Ideas</quote>."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:7977
msgid "<graphic fileref=\"images/1631.png\" align=\"center\" width=\"50%\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7980
msgid ""
"No copying, no printing, and don't you dare try to listen to this book!"
msgstr ""

#.  f21
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:7990
msgid ""
"In principle, a contract might impose a requirement on me. I might, for "
"example, buy a book from you that includes a contract that says I will read "
"it only three times, or that I promise to read it three times. But that "
"obligation (and the limits for creating that obligation) would come from the"
" contract, not from copyright law, and the obligations of contract would not"
" necessarily pass to anyone who subsequently acquired the book."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:7983
msgid ""
"Now, the Adobe eBook Reader calls these controls "
"<quote>permissions</quote>&mdash; as if the publisher has the power to "
"control how you use these works.  For works under copyright, the copyright "
"owner certainly does have the power&mdash;up to the limits of the copyright "
"law. But for work not under copyright, there is no such copyright "
"power.<placeholder type=\"footnote\" id=\"0\"/> When my e-book of "
"<citetitle>Middlemarch</citetitle> says I have the permission to copy only "
"ten text selections into the memory every ten days, what that really means "
"is that the eBook Reader has enabled the publisher to control how I use the "
"book on my computer, far beyond the control that the law would enable."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8005
msgid ""
"The control comes instead from the code&mdash;from the technology within "
"which the e-book <quote>lives.</quote> Though the e-book says that these are"
" permissions, they are not the sort of <quote>permissions</quote> that most "
"of us deal with. When a teenager gets <quote>permission</quote> to stay out "
"till midnight, she knows (unless she's Cinderella) that she can stay out "
"till 2 A.M., but will suffer a punishment if she's caught. But when the "
"Adobe eBook Reader says I have the permission to make ten copies of the text"
" into the computer's memory, that means that after I've made ten copies, the"
" computer will not make any more. The same with the printing restrictions: "
"After ten pages, the eBook Reader will not print any more pages.  It's the "
"same with the silly restriction that says that you can't use the Read Aloud "
"button to read my book aloud&mdash;it's not that the company will sue you if"
" you do; instead, if you push the Read Aloud button with my book, the "
"machine simply won't read aloud."
msgstr ""

#.  PAGE BREAK 163
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8025
msgid ""
"These are <emphasis>controls</emphasis>, not permissions. Imagine a world "
"where the Marx Brothers sold word processing software that, when you tried "
"to type <quote>Warner Brothers,</quote> erased <quote>Brothers</quote> from "
"the sentence."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8031
msgid ""
"This is the future of copyright law: not so much copyright "
"<emphasis>law</emphasis> as copyright <emphasis>code</emphasis>. The "
"controls over access to content will not be controls that are ratified by "
"courts; the controls over access to content will be controls that are coded "
"by programmers. And whereas the controls that are built into the law are "
"always to be checked by a judge, the controls that are built into the "
"technology have no similar built-in check."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8040
msgid ""
"How significant is this? Isn't it always possible to get around the controls"
" built into the technology? Software used to be sold with technologies that "
"limited the ability of users to copy the software, but those were trivial "
"protections to defeat. Why won't it be trivial to defeat these protections "
"as well?"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8047
msgid ""
"We've only scratched the surface of this story. Return to the Adobe eBook "
"Reader."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8050
msgid "Alice's Adventures in Wonderland (Carroll)"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:8051
msgid "e-book restrictions on"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8053
msgid ""
"Early in the life of the Adobe eBook Reader, Adobe suffered a public "
"relations nightmare. Among the books that you could download for free on the"
" Adobe site was a copy of <citetitle>Alice's Adventures in "
"Wonderland</citetitle>.  This wonderful book is in the public domain. Yet "
"when you clicked on Permissions for that book, you got the following report:"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:8061
msgid ""
"List of the permissions for <quote>Alice's Adventures in Wonderland</quote>."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:8063
msgid "<graphic fileref=\"images/1641.png\" align=\"center\" width=\"50%\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8067
msgid ""
"Here was a public domain children's book that you were not allowed to copy, "
"not allowed to lend, not allowed to give, and, as the "
"<quote>permissions</quote> indicated, not allowed to <quote>read "
"aloud</quote>!"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8072
msgid ""
"The public relations nightmare attached to that final permission.  For the "
"text did not say that you were not permitted to use the Read Aloud button; "
"it said you did not have the permission to read the book aloud. That led "
"some people to think that Adobe was restricting the right of parents, for "
"example, to read the book to their children, which seemed, to say the least,"
" absurd."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8080
msgid ""
"Adobe responded quickly that it was absurd to think that it was trying to "
"restrict the right to read a book aloud. Obviously it was only restricting "
"the ability to use the Read Aloud button to have the book read aloud. But "
"the question Adobe never did answer is this: Would Adobe thus agree that a "
"consumer was free to use software to hack around the restrictions built into"
" the eBook Reader? If some company (call it Elcomsoft) developed a program "
"to disable the technological protection built into an Adobe eBook so that a "
"blind person, say, could use a computer to read the book aloud, would Adobe "
"agree that such a use of an eBook Reader was fair? Adobe didn't answer "
"because the answer, however absurd it might seem, is no."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8095
msgid ""
"The point is not to blame Adobe. Indeed, Adobe is among the most innovative "
"companies developing strategies to balance open access to content with "
"incentives for companies to innovate. But Adobe's technology enables "
"control, and Adobe has an incentive to defend this control.  That incentive "
"is understandable, yet what it creates is often crazy."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8105
msgid ""
"To see the point in a particularly absurd context, consider a favorite story"
" of mine that makes the same point."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8108 freeculture.xml:8252 freeculture.xml:8317
#: freeculture.xml:8425
msgid "Aibo robotic dog"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8109 freeculture.xml:8253 freeculture.xml:8318
#: freeculture.xml:8426
msgid "robotic dog"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8110 freeculture.xml:8254 freeculture.xml:8319
#: freeculture.xml:8427
msgid "Sony"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:8110 freeculture.xml:8254 freeculture.xml:8319
#: freeculture.xml:8427
msgid "Aibo robotic dog produced by"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8112
msgid ""
"Consider the robotic dog made by Sony named <quote>Aibo.</quote> The Aibo "
"learns tricks, cuddles, and follows you around. It eats only electricity and"
" that doesn't leave that much of a mess (at least in your house)."
msgstr ""

#.  PAGE BREAK 165
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8117
msgid ""
"The Aibo is expensive and popular. Fans from around the world have set up "
"clubs to trade stories. One fan in particular set up a Web site to enable "
"information about the Aibo dog to be shared. This fan set up aibopet.com "
"(and aibohack.com, but that resolves to the same site), and on that site he "
"provided information about how to teach an Aibo to do tricks in addition to "
"the ones Sony had taught it."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8126
msgid ""
"<quote>Teach</quote> here has a special meaning. Aibos are just cute "
"computers.  You teach a computer how to do something by programming it "
"differently.  So to say that aibopet.com was giving information about how to"
" teach the dog to do new tricks is just to say that aibopet.com was giving "
"information to users of the Aibo pet about how to hack their computer "
"<quote>dog</quote> to make it do new tricks (thus, aibohack.com)."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8133
msgid "hacks"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8135
msgid ""
"If you're not a programmer or don't know many programmers, the word "
"<citetitle>hack</citetitle> has a particularly unfriendly connotation. "
"Nonprogrammers hack bushes or weeds. Nonprogrammers in horror movies do even"
" worse. But to programmers, or coders, as I call them, "
"<citetitle>hack</citetitle> is a much more positive term. "
"<citetitle>Hack</citetitle> just means code that enables the program to do "
"something it wasn't originally intended or enabled to do. If you buy a new "
"printer for an old computer, you might find the old computer doesn't run, or"
" <quote>drive,</quote> the printer. If you discovered that, you'd later be "
"happy to discover a hack on the Net by someone who has written a driver to "
"enable the computer to drive the printer you just bought."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8149
msgid ""
"Some hacks are easy. Some are unbelievably hard. Hackers as a community like"
" to challenge themselves and others with increasingly difficult tasks. "
"There's a certain respect that goes with the talent to hack well. There's a "
"well-deserved respect that goes with the talent to hack ethically."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8156
msgid ""
"The Aibo fan was displaying a bit of both when he hacked the program and "
"offered to the world a bit of code that would enable the Aibo to dance jazz."
" The dog wasn't programmed to dance jazz. It was a clever bit of tinkering "
"that turned the dog into a more talented creature than Sony had built."
msgstr ""

#.  PAGE BREAK 166
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8166
msgid ""
"I've told this story in many contexts, both inside and outside the United "
"States. Once I was asked by a puzzled member of the audience, is it "
"permissible for a dog to dance jazz in the United States? We forget that "
"stories about the backcountry still flow across much of the world. So let's "
"just be clear before we continue: It's not a crime anywhere (anymore) to "
"dance jazz. Nor is it a crime to teach your dog to dance jazz. Nor should it"
" be a crime (though we don't have a lot to go on here) to teach your robot "
"dog to dance jazz. Dancing jazz is a completely legal activity. One imagines"
" that the owner of aibopet.com thought, <emphasis>What possible problem "
"could there be with teaching a robot dog to dance?</emphasis>"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:8181
msgid "government case against"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8183
msgid ""
"Let's put the dog to sleep for a minute, and turn to a pony show&mdash; not "
"literally a pony show, but rather a paper that a Princeton academic named Ed"
" Felten prepared for a conference. This Princeton academic is well known and"
" respected. He was hired by the government in the Microsoft case to test "
"Microsoft's claims about what could and could not be done with its own code."
" In that trial, he demonstrated both his brilliance and his coolness. Under "
"heavy badgering by Microsoft lawyers, Ed Felten stood his ground. He was not"
" about to be bullied into being silent about something he knew very well."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8206 freeculture.xml:10775
msgid "Electronic Frontier Foundation"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:8196
msgid ""
"See Pamela Samuelson, <quote>Anticircumvention Rules: Threat to "
"Science,</quote> <citetitle>Science</citetitle> 293 (2001): 2028; Brendan I."
" Koerner, <quote>Play Dead: Sony Muzzles the Techies Who Teach a Robot Dog "
"New Tricks,</quote> <citetitle>American Prospect</citetitle>, January 2002; "
"<quote>Court Dismisses Computer Scientists' Challenge to DMCA,</quote> "
"<citetitle>Intellectual Property Litigation Reporter</citetitle>, 11 "
"December 2001; Bill Holland, <quote>Copyright Act Raising Free-Speech "
"Concerns,</quote> <citetitle>Billboard</citetitle>, May 2001; Janelle Brown,"
" <quote>Is the RIAA Running Scared?</quote> Salon.com, April 2001; "
"Electronic Frontier Foundation, <quote>Frequently Asked Questions about "
"<citetitle>Felten and USENIX</citetitle> v. <citetitle>RIAA</citetitle> "
"Legal Case,</quote> available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #27</ulink>.  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8194
msgid ""
"But Felten's bravery was really tested in April 2001.<placeholder "
"type=\"footnote\" id=\"0\"/> He and a group of colleagues were working on a "
"paper to be submitted at conference.  The paper was intended to describe the"
" weakness in an encryption system being developed by the Secure Digital "
"Music Initiative as a technique to control the distribution of music."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8214
msgid ""
"The SDMI coalition had as its goal a technology to enable content owners to "
"exercise much better control over their content than the Internet, as it "
"originally stood, granted them. Using encryption, SDMI hoped to develop a "
"standard that would allow the content owner to say <quote>this music cannot "
"be copied,</quote> and have a computer respect that command.  The technology"
" was to be part of a <quote>trusted system</quote> of control that would get"
" content owners to trust the system of the Internet much more."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8224
msgid ""
"When SDMI thought it was close to a standard, it set up a competition.  In "
"exchange for providing contestants with the code to an SDMI-encrypted bit of"
" content, contestants were to try to crack it and, if they did, report the "
"problems to the consortium."
msgstr ""

#.  PAGE BREAK 167
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8231
msgid ""
"Felten and his team figured out the encryption system quickly. He and the "
"team saw the weakness of this system as a type: Many encryption systems "
"would suffer the same weakness, and Felten and his team thought it "
"worthwhile to point this out to those who study encryption."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8237
msgid ""
"Let's review just what Felten was doing. Again, this is the United States. "
"We have a principle of free speech. We have this principle not just because "
"it is the law, but also because it is a really great idea. A strongly "
"protected tradition of free speech is likely to encourage a wide range of "
"criticism. That criticism is likely, in turn, to improve the systems or "
"people or ideas criticized."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8245
msgid ""
"What Felten and his colleagues were doing was publishing a paper describing "
"the weakness in a technology. They were not spreading free music, or "
"building and deploying this technology. The paper was an academic essay, "
"unintelligible to most people. But it clearly showed the weakness in the "
"SDMI system, and why SDMI would not, as presently constituted, succeed."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8256
msgid ""
"What links these two, aibopet.com and Felten, is the letters they then "
"received. Aibopet.com received a letter from Sony about the aibopet.com "
"hack. Though a jazz-dancing dog is perfectly legal, Sony wrote:"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:8263
msgid ""
"Your site contains information providing the means to circumvent AIBO-ware's"
" copy protection protocol constituting a violation of the anti-circumvention"
" provisions of the Digital Millennium Copyright Act."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8272
msgid ""
"And though an academic paper describing the weakness in a system of "
"encryption should also be perfectly legal, Felten received a letter from an "
"RIAA lawyer that read:"
msgstr ""

#.  PAGE BREAK 168
#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:8278
msgid ""
"Any disclosure of information gained from participating in the Public "
"Challenge would be outside the scope of activities permitted by the "
"Agreement and could subject you and your research team to actions under the "
"Digital Millennium Copyright Act (<quote>DMCA</quote>)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8286
msgid ""
"In both cases, this weirdly Orwellian law was invoked to control the spread "
"of information. The Digital Millennium Copyright Act made spreading such "
"information an offense."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8291
msgid ""
"The DMCA was enacted as a response to copyright owners' first fear about "
"cyberspace. The fear was that copyright control was effectively dead; the "
"response was to find technologies that might compensate.  These new "
"technologies would be copyright protection technologies&mdash; technologies "
"to control the replication and distribution of copyrighted material. They "
"were designed as <emphasis>code</emphasis> to modify the original "
"<emphasis>code</emphasis> of the Internet, to reestablish some protection "
"for copyright owners."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8302
msgid ""
"The DMCA was a bit of law intended to back up the protection of this code "
"designed to protect copyrighted material. It was, we could say, "
"<emphasis>legal code</emphasis> intended to buttress <emphasis>software "
"code</emphasis> which itself was intended to support the <emphasis>legal "
"code of copyright</emphasis>."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8309
msgid ""
"But the DMCA was not designed merely to protect copyrighted works to the "
"extent copyright law protected them. Its protection, that is, did not end at"
" the line that copyright law drew. The DMCA regulated devices that were "
"designed to circumvent copyright protection measures. It was designed to ban"
" those devices, whether or not the use of the copyrighted material made "
"possible by that circumvention would have been a copyright violation."
msgstr ""

#.  PAGE BREAK 169
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8321
msgid ""
"Aibopet.com and Felten make the point. The Aibo hack circumvented a "
"copyright protection system for the purpose of enabling the dog to dance "
"jazz. That enablement no doubt involved the use of copyrighted material. But"
" as aibopet.com's site was noncommercial, and the use did not enable "
"subsequent copyright infringements, there's no doubt that aibopet.com's hack"
" was fair use of Sony's copyrighted material. Yet fair use is not a defense "
"to the DMCA. The question is not whether the use of the copyrighted material"
" was a copyright violation. The question is whether a copyright protection "
"system was circumvented."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8333
msgid ""
"The threat against Felten was more attenuated, but it followed the same line"
" of reasoning. By publishing a paper describing how a copyright protection "
"system could be circumvented, the RIAA lawyer suggested, Felten himself was "
"distributing a circumvention technology.  Thus, even though he was not "
"himself infringing anyone's copyright, his academic paper was enabling "
"others to infringe others' copyright."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><blockquote><para><footnote><para><indexterm><primary>
#: freeculture.xml:8340 freeculture.xml:8375
msgid "Rogers, Fred"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8351 freeculture.xml:8388 freeculture.xml:8414
msgid "Conrad, Paul"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8343
msgid ""
"The bizarreness of these arguments is captured in a cartoon drawn in 1981 by"
" Paul Conrad. At that time, a court in California had held that the VCR "
"could be banned because it was a copyright-infringing technology: It enabled"
" consumers to copy films without the permission of the copyright owner. No "
"doubt there were uses of the technology that were legal: Fred Rogers, aka "
"<quote><citetitle>Mr. Rogers</citetitle>,</quote> for example, had testified"
" in that case that he wanted people to feel free to tape Mr. Rogers' "
"Neighborhood.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:8370
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> <citetitle>Sony Corporation of "
"America</citetitle> v. <citetitle>Universal City Studios, Inc</citetitle>., "
"464 U.S. 417, 455 fn. 27 (1984). Rogers never changed his view about the "
"VCR. See James Lardner, <citetitle>Fast Forward: Hollywood, the Japanese, "
"and the Onslaught of the VCR</citetitle> (New York: W. W. Norton, 1987), "
"270&ndash;71.  <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:8355
msgid ""
"Some public stations, as well as commercial stations, program the "
"<quote>Neighborhood</quote> at hours when some children cannot use it. I "
"think that it's a real service to families to be able to record such "
"programs and show them at appropriate times. I have always felt that with "
"the advent of all of this new technology that allows people to tape the "
"<quote>Neighborhood</quote> off-the-air, and I'm speaking for the "
"<quote>Neighborhood</quote> because that's what I produce, that they then "
"become much more active in the programming of their family's television "
"life. Very frankly, I am opposed to people being programmed by others. My "
"whole approach in broadcasting has always been <quote>You are an important "
"person just the way you are. You can make healthy decisions.</quote> Maybe "
"I'm going on too long, but I just feel that anything that allows a person to"
" be more active in the control of his or her life, in a healthy way, is "
"important.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 170
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8381
msgid ""
"Even though there were uses that were legal, because there were some uses "
"that were illegal, the court held the companies producing the VCR "
"responsible."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8386
msgid ""
"This led Conrad to draw the cartoon below, which we can adopt to the DMCA.  "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8391
msgid "No argument I have can top this picture, but let me try to get close."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8394
msgid ""
"The anticircumvention provisions of the DMCA target copyright circumvention "
"technologies. Circumvention technologies can be used for different ends. "
"They can be used, for example, to enable massive pirating of copyrighted "
"material&mdash;a bad end. Or they can be used to enable the use of "
"particular copyrighted materials in ways that would be considered fair "
"use&mdash;a good end."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8401
msgid "handguns"
msgstr ""

#.  PAGE BREAK 171
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8403
msgid ""
"A handgun can be used to shoot a police officer or a child. Most would agree"
" such a use is bad. Or a handgun can be used for target practice or to "
"protect against an intruder. At least some would say that such a use would "
"be good. It, too, is a technology that has both good and bad uses."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:8411
msgid "VCR/handgun cartoon."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:8412
msgid "<graphic fileref=\"images/1711.png\" align=\"center\" width=\"70%\"></graphic>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8416
msgid ""
"The obvious point of Conrad's cartoon is the weirdness of a world where guns"
" are legal, despite the harm they can do, while VCRs (and circumvention "
"technologies) are illegal. Flash: <emphasis>No one ever died from copyright "
"circumvention</emphasis>. Yet the law bans circumvention technologies "
"absolutely, despite the potential that they might do some good, but permits "
"guns, despite the obvious and tragic harm they do."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8429
msgid ""
"The Aibo and RIAA examples demonstrate how copyright owners are changing the"
" balance that copyright law grants. Using code, copyright owners restrict "
"fair use; using the DMCA, they punish those who would attempt to evade the "
"restrictions on fair use that they impose through code. Technology becomes a"
" means by which fair use can be erased; the law of the DMCA backs up that "
"erasing."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8437
msgid ""
"This is how <emphasis>code</emphasis> becomes <emphasis>law</emphasis>. The "
"controls built into the technology of copy and access protection become "
"rules the violation of which is also a violation of the law. In this way, "
"the code extends the law&mdash;increasing its regulation, even if the "
"subject it regulates (activities that would otherwise plainly constitute "
"fair use) is beyond the reach of the law. Code becomes law; code extends the"
" law; code thus extends the control that copyright owners effect&mdash;at "
"least for those copyright holders with the lawyers who can write the nasty "
"letters that Felten and aibopet.com received."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8449
msgid ""
"There is one final aspect of the interaction between architecture and law "
"that contributes to the force of copyright's regulation. This is the ease "
"with which infringements of the law can be detected. For contrary to the "
"rhetoric common at the birth of cyberspace that on the Internet, no one "
"knows you're a dog, increasingly, given changing technologies deployed on "
"the Internet, it is easy to find the dog who committed a legal wrong. The "
"technologies of the Internet are open to snoops as well as sharers, and the "
"snoops are increasingly good at tracking down the identity of those who "
"violate the rules."
msgstr ""

#.  f24
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:8468
msgid ""
"For an early and prescient analysis, see Rebecca Tushnet, <quote>Legal "
"Fictions, Copyright, Fan Fiction, and a New Common Law,</quote> "
"<citetitle>Loyola of Los Angeles Entertainment Law Journal</citetitle> 17 "
"(1997): 651."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8462
msgid ""
"For example, imagine you were part of a <citetitle>Star Trek</citetitle> fan"
" club. You gathered every month to share trivia, and maybe to enact a kind "
"of fan fiction about the show. One person would play Spock, another, Captain"
" Kirk. The characters would begin with a plot from a real story, then simply"
" continue it.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8474
msgid ""
"Before the Internet, this was, in effect, a totally unregulated activity.  "
"No matter what happened inside your club room, you would never be interfered"
" with by the copyright police. You were free in that space to do as you "
"wished with this part of our culture. You were allowed to build on it as you"
" wished without fear of legal control."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8482
msgid ""
"But if you moved your club onto the Internet, and made it generally "
"available for others to join, the story would be very different. Bots "
"scouring the Net for trademark and copyright infringement would quickly find"
" your site. Your posting of fan fiction, depending upon the ownership of the"
" series that you're depicting, could well inspire a lawyer's threat. And "
"ignoring the lawyer's threat would be extremely costly indeed.  The law of "
"copyright is extremely efficient. The penalties are severe, and the process "
"is quick."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8492
msgid ""
"This change in the effective force of the law is caused by a change in the "
"ease with which the law can be enforced. That change too shifts the law's "
"balance radically. It is as if your car transmitted the speed at which you "
"traveled at every moment that you drove; that would be just one step before "
"the state started issuing tickets based upon the data you transmitted. That "
"is, in effect, what is happening here."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:8501
msgid "Market: Concentration"
msgstr ""

#.  PAGE BREAK 173
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8503
msgid ""
"So copyright's duration has increased dramatically&mdash;tripled in the past"
" thirty years. And copyright's scope has increased as well&mdash;from "
"regulating only publishers to now regulating just about everyone. And "
"copyright's reach has changed, as every action becomes a copy and hence "
"presumptively regulated. And as technologists find better ways to control "
"the use of content, and as copyright is increasingly enforced through "
"technology, copyright's force changes, too. Misuse is easier to find and "
"easier to control. This regulation of the creative process, which began as a"
" tiny regulation governing a tiny part of the market for creative work, has "
"become the single most important regulator of creativity there is. It is a "
"massive expansion in the scope of the government's control over innovation "
"and creativity; it would be totally unrecognizable to those who gave birth "
"to copyright's control."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8521
msgid ""
"Still, in my view, all of these changes would not matter much if it weren't "
"for one more change that we must also consider. This is a change that is in "
"some sense the most familiar, though its significance and scope are not well"
" understood. It is the one that creates precisely the reason to be concerned"
" about all the other changes I have described."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8528
msgid ""
"This is the change in the concentration and integration of the media.  In "
"the past twenty years, the nature of media ownership has undergone a radical"
" alteration, caused by changes in legal rules governing the media.  Before "
"this change happened, the different forms of media were owned by separate "
"media companies. Now, the media is increasingly owned by only a few "
"companies. Indeed, after the changes that the FCC announced in June 2003, "
"most expect that within a few years, we will live in a world where just "
"three companies control more than 85 percent of the media."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8539
msgid ""
"These changes are of two sorts: the scope of concentration, and its nature."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8543
msgid "BMG"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8544 freeculture.xml:9930
msgid "EMI"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8545
msgid "McCain, John"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8546 freeculture.xml:9937
msgid "Universal Music Group"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8547
msgid "Warner Music Group"
msgstr ""

#.  f25
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:8553
msgid ""
"FCC Oversight: Hearing Before the Senate Commerce, Science and "
"Transportation Committee, 108th Cong., 1st sess. (22 May 2003)  (statement "
"of Senator John McCain)."
msgstr ""

#.  f26
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:8560
msgid ""
"Lynette Holloway, <quote>Despite a Marketing Blitz, CD Sales Continue to "
"Slide,</quote> <citetitle>New York Times</citetitle>, 23 December 2002."
msgstr ""

#.  f27
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:8566
msgid ""
"Molly Ivins, <quote>Media Consolidation Must Be Stopped,</quote> "
"<citetitle>Charleston Gazette</citetitle>, 31 May 2003."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8549
msgid ""
"Changes in scope are the easier ones to describe. As Senator John McCain "
"summarized the data produced in the FCC's review of media ownership, "
"<quote>five companies control 85 percent of our media "
"sources.</quote><placeholder type=\"footnote\" id=\"0\"/> The five recording"
" labels of Universal Music Group, BMG, Sony Music Entertainment, Warner "
"Music Group, and EMI control 84.8 percent of the U.S. music "
"market.<placeholder type=\"footnote\" id=\"1\"/> The <quote>five largest "
"cable companies pipe programming to 74 percent of the cable subscribers "
"nationwide.</quote><placeholder type=\"footnote\" id=\"2\"/>"
msgstr ""

#.  PAGE BREAK 174
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8571
msgid ""
"The story with radio is even more dramatic. Before deregulation, the "
"nation's largest radio broadcasting conglomerate owned fewer than seventy-"
"five stations. Today <emphasis>one</emphasis> company owns more than 1,200 "
"stations.  During that period of consolidation, the total number of radio "
"owners dropped by 34 percent. Today, in most markets, the two largest "
"broadcasters control 74 percent of that market's revenues. Overall, just "
"four companies control 90 percent of the nation's radio advertising "
"revenues."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8583
msgid ""
"Newspaper ownership is becoming more concentrated as well.  Today, there are"
" six hundred fewer daily newspapers in the United States than there were "
"eighty years ago, and ten companies control half of the nation's "
"circulation. There are twenty major newspaper publishers in the United "
"States. The top ten film studios receive 99 percent of all film revenue. The"
" ten largest cable companies account for 85 percent of all cable revenue. "
"This is a market far from the free press the framers sought to protect. "
"Indeed, it is a market that is quite well protected&mdash; by the market."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><blockquote><para><footnote><para><indexterm><primary>
#: freeculture.xml:8593 freeculture.xml:8614
msgid "Fallows, James"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8595
msgid ""
"Concentration in size alone is one thing. The more invidious change is in "
"the nature of that concentration. As author James Fallows put it in a recent"
" article about Rupert Murdoch,"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:8612
msgid ""
"James Fallows, <quote>The Age of Murdoch,</quote> <citetitle>Atlantic "
"Monthly</citetitle> (September 2003): 89.  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:8601
msgid ""
"Murdoch's companies now constitute a production system unmatched in its "
"integration. They supply content&mdash;Fox movies &hellip; Fox TV shows "
"&hellip; Fox-controlled sports broadcasts, plus newspapers and books. They "
"sell the content to the public and to advertisers&mdash;in newspapers, on "
"the broadcast network, on the cable channels. And they operate the physical "
"distribution system through which the content reaches the customers. "
"Murdoch's satellite systems now distribute News Corp. content in Europe and "
"Asia; if Murdoch becomes DirecTV's largest single owner, that system will "
"serve the same function in the United States.<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8619
msgid ""
"The pattern with Murdoch is the pattern of modern media. Not just large "
"companies owning many radio stations, but a few companies owning as many "
"outlets of media as possible. A picture describes this pattern better than a"
" thousand words could do:"
msgstr ""

#. type: Content of: <book><part><chapter><section><figure><title>
#: freeculture.xml:8625
msgid "Pattern of modern media ownership."
msgstr ""

#. type: Content of: <book><part><chapter><section><figure>
#: freeculture.xml:8626
msgid "<graphic fileref=\"images/1761.png\" align=\"center\" width=\"90%\"></graphic>"
msgstr ""

#.  PAGE BREAK 175
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8630
msgid ""
"Does this concentration matter? Will it affect what is made, or what is "
"distributed? Or is it merely a more efficient way to produce and distribute "
"content?"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8635
msgid ""
"My view was that concentration wouldn't matter. I thought it was nothing "
"more than a more efficient financial structure. But now, after reading and "
"listening to a barrage of creators try to convince me to the contrary, I am "
"beginning to change my mind."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8641
msgid ""
"Here's a representative story that begins to suggest how this integration "
"may matter."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8644
msgid "Lear, Norman"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8646 freeculture.xml:8709
msgid "All in the Family"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8648
msgid ""
"In 1969, Norman Lear created a pilot for <citetitle>All in the "
"Family</citetitle>. He took the pilot to ABC. The network didn't like it. It"
" was too edgy, they told Lear. Make it again. Lear made a second pilot, more"
" edgy than the first. ABC was exasperated. You're missing the point, they "
"told Lear.  We wanted less edgy, not more."
msgstr ""

#.  f29
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:8660
msgid ""
"Leonard Hill, <quote>The Axis of Access,</quote> remarks before Weidenbaum "
"Center Forum, <quote>Entertainment Economics: The Movie Industry,</quote> "
"St. Louis, Missouri, 3 April 2003 (transcript of prepared remarks available "
"at <ulink url=\"http://free-culture.cc/notes/\">link #28</ulink>; for the "
"Lear story, not included in the prepared remarks, see <ulink url=\"http"
"://free-culture.cc/notes/\">link #29</ulink>)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8655
msgid ""
"Rather than comply, Lear simply took the show elsewhere. CBS was happy to "
"have the series; ABC could not stop Lear from walking.  The copyrights that "
"Lear held assured an independence from network control.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 176
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8671
msgid ""
"The network did not control those copyrights because the law forbade the "
"networks from controlling the content they syndicated. The law required a "
"separation between the networks and the content producers; that separation "
"would guarantee Lear freedom. And as late as 1992, because of these rules, "
"the vast majority of prime time television&mdash;75 percent of it&mdash;was "
"<quote>independent</quote> of the networks."
msgstr ""

#.  f30
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:8690
msgid ""
"NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media "
"Ownership Before the Senate Commerce Committee, 108th Cong., 1st sess. "
"(2003) (testimony of Gene Kimmelman on behalf of Consumers Union and the "
"Consumer Federation of America), available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #30</ulink>. Kimmelman quotes Victoria Riskin, "
"president of Writers Guild of America, West, in her Remarks at FCC En Banc "
"Hearing, Richmond, Virginia, 27 February 2003."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8680
msgid ""
"In 1994, the FCC abandoned the rules that required this independence.  After"
" that change, the networks quickly changed the balance.  In 1985, there were"
" twenty-five independent television production studios; in 2002, only five "
"independent television studios remained. <quote>In 1992, only 15 percent of "
"new series were produced for a network by a company it controlled. Last "
"year, the percentage of shows produced by controlled companies more than "
"quintupled to 77 percent.</quote> <quote>In 1992, 16 new series were "
"produced independently of conglomerate control, last year there was "
"one.</quote><placeholder type=\"footnote\" id=\"0\"/> In 2002, 75 percent of"
" prime time television was owned by the networks that ran it. <quote>In the "
"ten-year period between 1992 and 2002, the number of prime time television "
"hours per week produced by network studios increased over 200%, whereas the "
"number of prime time television hours per week produced by independent "
"studios decreased 63%.</quote><placeholder type=\"footnote\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8711
msgid ""
"Today, another Norman Lear with another <citetitle>All in the "
"Family</citetitle> would find that he had the choice either to make the show"
" less edgy or to be fired: The content of any show developed for a network "
"is increasingly owned by the network."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8716
msgid "Diller, Barry"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8717
msgid "Moyers, Bill"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8719
msgid ""
"While the number of channels has increased dramatically, the ownership of "
"those channels has narrowed to an ever smaller and smaller few. As Barry "
"Diller said to Bill Moyers,"
msgstr ""

#.  f32
#. type: Content of:
#. <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:8734
msgid ""
"<quote>Barry Diller Takes on Media Deregulation,</quote> <citetitle>Now with"
" Bill Moyers</citetitle>, Bill Moyers, 25 April 2003, edited transcript "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #31</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:8725
msgid ""
"Well, if you have companies that produce, that finance, that air on their "
"channel and then distribute worldwide everything that goes through their "
"controlled distribution system, then what you get is fewer and fewer actual "
"voices participating in the process. [We u]sed to have dozens and dozens of "
"thriving independent production companies producing television programs. Now"
" you have less than a handful.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8741
msgid ""
"This narrowing has an effect on what is produced. The product of such large "
"and concentrated networks is increasingly homogenous.  Increasingly safe. "
"Increasingly sterile. The product of news shows from networks like this is "
"increasingly tailored to the message the network wants to convey. This is "
"not the communist party, though from the inside, it must feel a bit like the"
" communist party. No one can question without risk of consequence&mdash;not "
"necessarily banishment to Siberia, but punishment nonetheless. Independent, "
"critical, different views are quashed. This is not the environment for a "
"democracy."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8752
msgid "Clark, Kim B."
msgstr ""

#.  f33
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:8761
msgid ""
"Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The "
"Revolutionary National Bestseller that Changed the Way We Do "
"Business</citetitle> (Cambridge: Harvard Business School Press, 1997). "
"Christensen acknowledges that the idea was first suggested by Dean Kim "
"Clark. See Kim B. Clark, <quote>The Interaction of Design Hierarchies and "
"Market Concepts in Technological Evolution,</quote> <citetitle>Research "
"Policy</citetitle> 14 (1985): 235&ndash;51. For a more recent study, see "
"Richard Foster and Sarah Kaplan, <citetitle>Creative Destruction: Why "
"Companies That Are Built to Last Underperform the Market&mdash;and How to "
"Successfully Transform Them</citetitle> (New York: Currency/Doubleday, "
"2001)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8754
msgid ""
"Economics itself offers a parallel that explains why this integration "
"affects creativity. Clay Christensen has written about the "
"<quote>Innovator's Dilemma</quote>: the fact that large traditional firms "
"find it rational to ignore new, breakthrough technologies that compete with "
"their core business.  The same analysis could help explain why large, "
"traditional media companies would find it rational to ignore new cultural "
"trends.<placeholder type=\"footnote\" id=\"0\"/> Lumbering giants not only "
"don't, but should not, sprint. Yet if the field is only open to the giants, "
"there will be far too little sprinting.  <placeholder type=\"indexterm\" "
"id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8778
msgid ""
"I don't think we know enough about the economics of the media market to say "
"with certainty what concentration and integration will do. The efficiencies "
"are important, and the effect on culture is hard to measure."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8784
msgid ""
"But there is a quintessentially obvious example that does strongly suggest "
"the concern."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8788
msgid ""
"In addition to the copyright wars, we're in the middle of the drug wars. "
"Government policy is strongly directed against the drug cartels; criminal "
"and civil courts are filled with the consequences of this battle."
msgstr ""

#.  PAGE BREAK 178
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8793
msgid ""
"Let me hereby disqualify myself from any possible appointment to any "
"position in government by saying I believe this war is a profound mistake. I"
" am not pro drugs. Indeed, I come from a family once wrecked by "
"drugs&mdash;though the drugs that wrecked my family were all quite legal. I "
"believe this war is a profound mistake because the collateral damage from it"
" is so great as to make waging the war insane.  When you add together the "
"burdens on the criminal justice system, the desperation of generations of "
"kids whose only real economic opportunities are as drug warriors, the "
"queering of constitutional protections because of the constant surveillance "
"this war requires, and, most profoundly, the total destruction of the legal "
"systems of many South American nations because of the power of the local "
"drug cartels, I find it impossible to believe that the marginal benefit in "
"reduced drug consumption by Americans could possibly outweigh these costs."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8812
msgid ""
"You may not be convinced. That's fine. We live in a democracy, and it is "
"through votes that we are to choose policy. But to do that, we depend "
"fundamentally upon the press to help inform Americans about these issues."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:8820
msgid "Nick and Norm anti-drug campaign"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8822
msgid ""
"Beginning in 1998, the Office of National Drug Control Policy launched a "
"media campaign as part of the <quote>war on drugs.</quote> The campaign "
"produced scores of short film clips about issues related to illegal drugs. "
"In one series (the Nick and Norm series) two men are in a bar, discussing "
"the idea of legalizing drugs as a way to avoid some of the collateral damage"
" from the war. One advances an argument in favor of drug legalization. The "
"other responds in a powerful and effective way against the argument of the "
"first. In the end, the first guy changes his mind (hey, it's television). "
"The plug at the end is a damning attack on the pro-legalization campaign."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8834
msgid ""
"Fair enough. It's a good ad. Not terribly misleading. It delivers its "
"message well. It's a fair and reasonable message."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8838
msgid ""
"But let's say you think it is a wrong message, and you'd like to run a "
"countercommercial. Say you want to run a series of ads that try to "
"demonstrate the extraordinary collateral harm that comes from the drug war. "
"Can you do it?"
msgstr ""

#.  PAGE BREAK 179
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8844
msgid ""
"Well, obviously, these ads cost lots of money. Assume you raise the money. "
"Assume a group of concerned citizens donates all the money in the world to "
"help you get your message out. Can you be sure your message will be heard "
"then?"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:8852
msgid "on television advertising bans"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:8853
msgid "controversy avoided by"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:8866
msgid "Comcast"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:8867
msgid "Marijuana Policy Project"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:8868
msgid "NBC"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:8869
msgid "WJOA"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:8870
msgid "WRC"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:8865
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
"id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> <placeholder "
"type=\"indexterm\" id=\"3\"/> <placeholder type=\"indexterm\" id=\"4\"/> "
"<placeholder type=\"indexterm\" id=\"5\"/> <placeholder type=\"indexterm\" "
"id=\"6\"/> The Marijuana Policy Project, in February 2003, sought to place "
"ads that directly responded to the Nick and Norm series on stations within "
"the Washington, D.C., area. Comcast rejected the ads as <quote>against "
"[their] policy.</quote> The local NBC affiliate, WRC, rejected the ads "
"without reviewing them. The local ABC affiliate, WJOA, originally agreed to "
"run the ads and accepted payment to do so, but later decided not to run the "
"ads and returned the collected fees. Interview with Neal Levine, 15 October "
"2003.  These restrictions are, of course, not limited to drug policy. See, "
"for example, Nat Ives, <quote>On the Issue of an Iraq War, Advocacy Ads Meet"
" with Rejection from TV Networks,</quote> <citetitle>New York "
"Times</citetitle>, 13 March 2003, C4.  Outside of election-related air time "
"there is very little that the FCC or the courts are willing to do to even "
"the playing field. For a general overview, see Rhonda Brown, <quote>Ad Hoc "
"Access: The Regulation of Editorial Advertising on Television and "
"Radio,</quote> <citetitle>Yale Law and Policy Review</citetitle> 6 (1988): "
"449&ndash;79, and for a more recent summary of the stance of the FCC and the"
" courts, see <citetitle>Radio-Television News Directors "
"Association</citetitle> v. <citetitle>FCC</citetitle>, 184 F. 3d 872 (D.C. "
"Cir. 1999). Municipal authorities exercise the same authority as the "
"networks. In a recent example from San Francisco, the San Francisco transit "
"authority rejected an ad that criticized its Muni diesel buses. Phillip "
"Matier and Andrew Ross, <quote>Antidiesel Group Fuming After Muni Rejects "
"Ad,</quote> SFGate.com, 16 June 2003, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #32</ulink>. The ground was that the criticism was "
"<quote>too controversial.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8855
msgid ""
"No. You cannot. Television stations have a general policy of avoiding "
"<quote>controversial</quote> ads. Ads sponsored by the government are deemed"
" uncontroversial; ads disagreeing with the government are controversial.  "
"This selectivity might be thought inconsistent with the First Amendment, but"
" the Supreme Court has held that stations have the right to choose what they"
" run. Thus, the major channels of commercial media will refuse one side of a"
" crucial debate the opportunity to present its case.  And the courts will "
"defend the rights of the stations to be this biased.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8904
msgid ""
"I'd be happy to defend the networks' rights, as well&mdash;if we lived in a "
"media market that was truly diverse. But concentration in the media throws "
"that condition into doubt. If a handful of companies control access to the "
"media, and that handful of companies gets to decide which political "
"positions it will allow to be promoted on its channels, then in an obvious "
"and important way, concentration matters. You might like the positions the "
"handful of companies selects. But you should not like a world in which a "
"mere few get to decide which issues the rest of us get to know about."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:8917
msgid "Together"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8919
msgid ""
"There is something innocent and obvious about the claim of the copyright "
"warriors that the government should <quote>protect my property.</quote> In "
"the abstract, it is obviously true and, ordinarily, totally harmless. No "
"sane sort who is not an anarchist could disagree."
msgstr ""

#.  PAGE BREAK 180
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8925
msgid ""
"But when we see how dramatically this <quote>property</quote> has "
"changed&mdash; when we recognize how it might now interact with both "
"technology and markets to mean that the effective constraint on the liberty "
"to cultivate our culture is dramatically different&mdash;the claim begins to"
" seem less innocent and obvious. Given (1) the power of technology to "
"supplement the law's control, and (2) the power of concentrated markets to "
"weaken the opportunity for dissent, if strictly enforcing the massively "
"expanded <quote>property</quote> rights granted by copyright fundamentally "
"changes the freedom within this culture to cultivate and build upon our "
"past, then we have to ask whether this property should be redefined."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8941
msgid ""
"Not starkly. Or absolutely. My point is not that we should abolish copyright"
" or go back to the eighteenth century. That would be a total mistake, "
"disastrous for the most important creative enterprises within our culture "
"today."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8947
msgid ""
"But there is a space between zero and one, Internet culture notwithstanding."
"  And these massive shifts in the effective power of copyright regulation, "
"tied to increased concentration of the content industry and resting in the "
"hands of technology that will increasingly enable control over the use of "
"culture, should drive us to consider whether another adjustment is called "
"for. Not an adjustment that increases copyright's power. Not an adjustment "
"that increases its term. Rather, an adjustment to restore the balance that "
"has traditionally defined copyright's regulation&mdash;a weakening of that "
"regulation, to strengthen creativity."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8959
msgid ""
"Copyright law has not been a rock of Gibraltar. It's not a set of constant "
"commitments that, for some mysterious reason, teenagers and geeks now flout."
" Instead, copyright power has grown dramatically in a short period of time, "
"as the technologies of distribution and creation have changed and as "
"lobbyists have pushed for more control by copyright holders. Changes in the "
"past in response to changes in technology suggest that we may well need "
"similar changes in the future. And these changes have to be "
"<emphasis>reductions</emphasis> in the scope of copyright, in response to "
"the extraordinary increase in control that technology and the market enable."
msgstr ""

#.  PAGE BREAK 181
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8971
msgid ""
"For the single point that is lost in this war on pirates is a point that we "
"see only after surveying the range of these changes. When you add together "
"the effect of changing law, concentrated markets, and changing technology, "
"together they produce an astonishing conclusion: <emphasis>Never in our "
"history have fewer had a legal right to control more of the development of "
"our culture than now</emphasis>."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:8995
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> Siva Vaidhyanathan captures a "
"similar point in his <quote>four surrenders</quote> of copyright law in the "
"digital age. See Vaidhyanathan, 159&ndash;60."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:8980
msgid ""
"Not when copyrights were perpetual, for when copyrights were perpetual, they"
" affected only that precise creative work. Not when only publishers had the "
"tools to publish, for the market then was much more diverse. Not when there "
"were only three television networks, for even then, newspapers, film "
"studios, radio stations, and publishers were independent of the networks. "
"<emphasis>Never</emphasis> has copyright protected such a wide range of "
"rights, against as broad a range of actors, for a term that was remotely as "
"long. This form of regulation&mdash;a tiny regulation of a tiny part of the "
"creative energy of a nation at the founding&mdash;is now a massive "
"regulation of the overall creative process. Law plus technology plus the "
"market now interact to turn this historically benign regulation into the "
"most significant regulation of culture that our free society has "
"known.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9001
msgid ""
"<emphasis role='strong'>This has been</emphasis> a long chapter. Its point "
"can now be briefly stated."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9005
msgid ""
"At the start of this book, I distinguished between commercial and "
"noncommercial culture. In the course of this chapter, I have distinguished "
"between copying a work and transforming it. We can now combine these two "
"distinctions and draw a clear map of the changes that copyright law has "
"undergone.  In 1790, the law looked like this:"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
#: freeculture.xml:9017 freeculture.xml:9054
msgid "PUBLISH"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
#: freeculture.xml:9018 freeculture.xml:9055 freeculture.xml:9093
#: freeculture.xml:9125
msgid "TRANSFORM"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:9023 freeculture.xml:9060 freeculture.xml:9098
#: freeculture.xml:9130
msgid "Commercial"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:9024 freeculture.xml:9061 freeculture.xml:9062
#: freeculture.xml:9099 freeculture.xml:9100 freeculture.xml:9131
#: freeculture.xml:9132 freeculture.xml:9136 freeculture.xml:9137
msgid "&copy;"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:9025 freeculture.xml:9029 freeculture.xml:9030
#: freeculture.xml:9066 freeculture.xml:9067 freeculture.xml:9105
msgid "Free"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:9028 freeculture.xml:9065 freeculture.xml:9103
#: freeculture.xml:9135
msgid "Noncommercial"
msgstr ""

#.  PAGE BREAK 182
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9037
msgid ""
"The act of publishing a map, chart, and book was regulated by copyright law."
" Nothing else was. Transformations were free. And as copyright attached only"
" with registration, and only those who intended to benefit commercially "
"would register, copying through publishing of noncommercial work was also "
"free."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9046
msgid "By the end of the nineteenth century, the law had changed to this:"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9074
msgid ""
"Derivative works were now regulated by copyright law&mdash;if published, "
"which again, given the economics of publishing at the time, means if offered"
" commercially. But noncommercial publishing and transformation were still "
"essentially free."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9080
msgid ""
"In 1909 the law changed to regulate copies, not publishing, and after this "
"change, the scope of the law was tied to technology. As the technology of "
"copying became more prevalent, the reach of the law expanded.  Thus by 1975,"
" as photocopying machines became more common, we could say the law began to "
"look like this:"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><thead><row><entry>
#: freeculture.xml:9092 freeculture.xml:9124
msgid "COPY"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:9104
msgid "&copy; / Free"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9112
msgid ""
"The law was interpreted to reach noncommercial copying through, say, copy "
"machines, but still much of copying outside of the commercial market "
"remained free. But the consequence of the emergence of digital technologies,"
" especially in the context of a digital network, means that the law now "
"looks like this:"
msgstr ""

#.  PAGE BREAK 183
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9144
msgid ""
"Every realm is governed by copyright law, whereas before most creativity was"
" not. The law now regulates the full range of creativity&mdash; commercial "
"or not, transformative or not&mdash;with the same rules designed to regulate"
" commercial publishers."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9152
msgid ""
"Obviously, copyright law is not the enemy. The enemy is regulation that does"
" no good. So the question that we should be asking just now is whether "
"extending the regulations of copyright law into each of these domains "
"actually does any good."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9158
msgid ""
"I have no doubt that it does good in regulating commercial copying.  But I "
"also have no doubt that it does more harm than good when regulating (as it "
"regulates just now) noncommercial copying and, especially, noncommercial "
"transformation. And increasingly, for the reasons sketched especially in "
"chapters <xref xrefstyle=\"select: labelnumber\" linkend=\"recorders\"/> and"
" <xref xrefstyle=\"select: labelnumber\" linkend=\"transformers\"/>, one "
"might well wonder whether it does more harm than good for commercial "
"transformation.  More commercial transformative work would be created if "
"derivative rights were more sharply restricted."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:9176
msgid "legal realist movement"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:9176
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> It was the single most important "
"contribution of the legal realist movement to demonstrate that all property "
"rights are always crafted to balance public and private interests. See "
"Thomas C. Grey, <quote>The Disintegration of Property,</quote> in "
"<citetitle>Nomos XXII: Property</citetitle>, J. Roland Pennock and John W.  "
"Chapman, eds. (New York: New York University Press, 1980)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9170
msgid ""
"The issue is therefore not simply whether copyright is property. Of course "
"copyright is a kind of <quote>property,</quote> and of course, as with any "
"property, the state ought to protect it. But first impressions "
"notwithstanding, historically, this property right (as with all property "
"rights<placeholder type=\"footnote\" id=\"0\"/>)  has been crafted to "
"balance the important need to give authors and artists incentives with the "
"equally important need to assure access to creative work. This balance has "
"always been struck in light of new technologies.  And for almost half of our"
" tradition, the <quote>copyright</quote> did not control <emphasis>at "
"all</emphasis> the freedom of others to build upon or transform a creative "
"work. American culture was born free, and for almost 180 years our country "
"consistently protected a vibrant and rich free culture."
msgstr ""

#.  PAGE BREAK 184
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9195
msgid ""
"We achieved that free culture because our law respected important limits on "
"the scope of the interests protected by <quote>property.</quote> The very "
"birth of <quote>copyright</quote> as a statutory right recognized those "
"limits, by granting copyright owners protection for a limited time only (the"
" story of chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"founders\"/>). The tradition of <quote>fair use</quote> is "
"animated by a similar concern that is increasingly under strain as the costs"
" of exercising any fair use right become unavoidably high (the story of "
"chapter <xref xrefstyle=\"select: labelnumber\" linkend=\"recorders\"/>). "
"Adding statutory rights where markets might stifle innovation is another "
"familiar limit on the property right that copyright is (chapter <xref "
"xrefstyle=\"select: labelnumber\" linkend=\"transformers\"/>). And granting "
"archives and libraries a broad freedom to collect, claims of property "
"notwithstanding, is a crucial part of guaranteeing the soul of a culture "
"(chapter <xref xrefstyle=\"select: labelnumber\" linkend=\"collectors\"/>). "
"Free cultures, like free markets, are built with property. But the nature of"
" the property that builds a free culture is very different from the "
"extremist vision that dominates the debate today."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9218
msgid ""
"Free culture is increasingly the casualty in this war on piracy. In response"
" to a real, if not yet quantified, threat that the technologies of the "
"Internet present to twentieth-century business models for producing and "
"distributing culture, the law and technology are being transformed in a way "
"that will undermine our tradition of free culture. The property right that "
"is copyright is no longer the balanced right that it was, or was intended to"
" be. The property right that is copyright has become unbalanced, tilted "
"toward an extreme. The opportunity to create and transform becomes weakened "
"in a world in which creation requires permission and creativity must check "
"with a lawyer."
msgstr ""

#. type: Content of: <book><part><title>
#: freeculture.xml:9235
msgid "PUZZLES"
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:9239
msgid "CHAPTER ELEVEN: Chimera"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:9240
msgid "chimeras"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:9241
msgid "Wells, H. G."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:9242
msgid "<quote>Country of the Blind, The</quote> (Wells)"
msgstr ""

#.  f1.
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:9250
msgid ""
"H. G. Wells, <quote>The Country of the Blind</quote> (1904, 1911). See H. G."
" Wells, <citetitle>The Country of the Blind and Other Stories</citetitle>, "
"Michael Sherborne, ed. (New York: Oxford University Press, 1996)."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9245
msgid ""
"<emphasis role='strong'>In a well-known</emphasis> short story by H. G. "
"Wells, a mountain climber named Nunez trips (literally, down an ice slope) "
"into an unknown and isolated valley in the Peruvian Andes.<placeholder "
"type=\"footnote\" id=\"0\"/> The valley is extraordinarily beautiful, with "
"<quote>sweet water, pasture, an even climate, slopes of rich brown soil with"
" tangles of a shrub that bore an excellent fruit.</quote> But the villagers "
"are all blind. Nunez takes this as an opportunity. <quote>In the Country of "
"the Blind,</quote> he tells himself, <quote>the One-Eyed Man is "
"King.</quote> So he resolves to live with the villagers to explore life as a"
" king."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9262
msgid ""
"Things don't go quite as he planned. He tries to explain the idea of sight "
"to the villagers. They don't understand. He tells them they are "
"<quote>blind.</quote> They don't have the word <citetitle>blind</citetitle>."
" They think he's just thick.  Indeed, as they increasingly notice the things"
" he can't do (hear the sound of grass being stepped on, for example), they "
"increasingly try to control him. He, in turn, becomes increasingly "
"frustrated. <quote>`You don't understand,' he cried, in a voice that was "
"meant to be great and resolute, and which broke. `You are blind and I can "
"see. Leave me alone!'</quote>"
msgstr ""

#.  PAGE BREAK 187
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9274
msgid ""
"The villagers don't leave him alone. Nor do they see (so to speak) the "
"virtue of his special power. Not even the ultimate target of his affection, "
"a young woman who to him seems <quote>the most beautiful thing in the whole "
"of creation,</quote> understands the beauty of sight. Nunez's description of"
" what he sees <quote>seemed to her the most poetical of fancies, and she "
"listened to his description of the stars and the mountains and her own sweet"
" white-lit beauty as though it was a guilty indulgence.</quote> <quote>She "
"did not believe,</quote> Wells tells us, and <quote>she could only half "
"understand, but she was mysteriously delighted.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9285
msgid ""
"When Nunez announces his desire to marry his <quote>mysteriously "
"delighted</quote> love, the father and the village object. <quote>You see, "
"my dear,</quote> her father instructs, <quote>he's an idiot. He has "
"delusions. He can't do anything right.</quote> They take Nunez to the "
"village doctor."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9291
msgid ""
"After a careful examination, the doctor gives his opinion. <quote>His brain "
"is affected,</quote> he reports."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9295
msgid ""
"<quote>What affects it?</quote> the father asks.  <quote>Those queer things "
"that are called the eyes &hellip; are diseased &hellip; in such a way as to "
"affect his brain.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9300
msgid ""
"The doctor continues: <quote>I think I may say with reasonable certainty "
"that in order to cure him completely, all that we need to do is a simple and"
" easy surgical operation&mdash;namely, to remove these irritant bodies [the "
"eyes].</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9306
msgid ""
"<quote>Thank Heaven for science!</quote> says the father to the doctor. They"
" inform Nunez of this condition necessary for him to be allowed his bride.  "
"(You'll have to read the original to learn what happens in the end. I "
"believe in free culture, but never in giving away the end of a story.)"
msgstr ""

#.  PAGE BREAK 188
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9312
msgid ""
"<emphasis role='strong'>It sometimes</emphasis> happens that the eggs of "
"twins fuse in the mother's womb. That fusion produces a "
"<quote>chimera.</quote> A chimera is a single creature with two sets of DNA."
" The DNA in the blood, for example, might be different from the DNA of the "
"skin. This possibility is an underused plot for murder mysteries. <quote>But"
" the DNA shows with 100 percent certainty that she was not the person whose "
"blood was at the scene. &hellip;</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9326
msgid ""
"Before I had read about chimeras, I would have said they were impossible.  A"
" single person can't have two sets of DNA. The very idea of DNA is that it "
"is the code of an individual. Yet in fact, not only can two individuals have"
" the same set of DNA (identical twins), but one person can have two "
"different sets of DNA (a chimera). Our understanding of a "
"<quote>person</quote> should reflect this reality."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9334
msgid ""
"The more I work to understand the current struggle over copyright and "
"culture, which I've sometimes called unfairly, and sometimes not unfairly "
"enough, <quote>the copyright wars,</quote> the more I think we're dealing "
"with a chimera. For example, in the battle over the question <quote>What is "
"p2p file sharing?</quote> both sides have it right, and both sides have it "
"wrong.  One side says, <quote>File sharing is just like two kids taping each"
" others' records&mdash;the sort of thing we've been doing for the last "
"thirty years without any question at all.</quote> That's true, at least in "
"part. When I tell my best friend to try out a new CD that I've bought, but "
"rather than just send the CD, I point him to my p2p server, that is, in all "
"relevant respects, just like what every executive in every recording company"
" no doubt did as a kid: sharing music."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9348
msgid ""
"But the description is also false in part. For when my p2p server is on a "
"p2p network through which anyone can get access to my music, then sure, my "
"friends can get access, but it stretches the meaning of "
"<quote>friends</quote> beyond recognition to say <quote>my ten thousand best"
" friends</quote> can get access. Whether or not sharing my music with my "
"best friend is what <quote>we have always been allowed to do,</quote> we "
"have not always been allowed to share music with <quote>our ten thousand "
"best friends.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9357
msgid ""
"Likewise, when the other side says, <quote>File sharing is just like walking"
" into a Tower Records and taking a CD off the shelf and walking out with "
"it,</quote> that's true, at least in part. If, after Lyle Lovett (finally) "
"releases a new album, rather than buying it, I go to Kazaa and find a free "
"copy to take, that is very much like stealing a copy from Tower.  "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 189
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9368
msgid ""
"But it is not quite stealing from Tower. After all, when I take a CD from "
"Tower Records, Tower has one less CD to sell. And when I take a CD from "
"Tower Records, I get a bit of plastic and a cover, and something to show on "
"my shelves. (And, while we're at it, we could also note that when I take a "
"CD from Tower Records, the maximum fine that might be imposed on me, under "
"California law, at least, is $1,000.  According to the RIAA, by contrast, if"
" I download a ten-song CD, I'm liable for $1,500,000 in damages.)"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9378
msgid ""
"The point is not that it is as neither side describes. The point is that it "
"is both&mdash;both as the RIAA describes it and as Kazaa describes it. It is"
" a chimera. And rather than simply denying what the other side asserts, we "
"need to begin to think about how we should respond to this chimera. What "
"rules should govern it?"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:9394 freeculture.xml:9681 freeculture.xml:10776
msgid "ISPs (Internet service providers), user identities revealed by"
msgstr ""

#. type: Content of:
#. <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:9425
msgid "Conyers, John, Jr."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:9426 freeculture.xml:10173
msgid "Berman, Howard L."
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:9394
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> For an excellent summary, see the"
" report prepared by GartnerG2 and the Berkman Center for Internet and "
"Society at Harvard Law School, <quote>Copyright and Digital Media in a Post-"
"Napster World,</quote> 27 June 2003, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #33</ulink>. Reps. John Conyers Jr. (D-Mich.) and "
"Howard L. Berman (D-Calif.) have introduced a bill that would treat "
"unauthorized on-line copying as a felony offense with punishments ranging as"
" high as five years imprisonment; see Jon Healey, <quote>House Bill Aims to "
"Up Stakes on Piracy,</quote> <citetitle>Los Angeles Times</citetitle>, 17 "
"July 2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#34</ulink>. Civil penalties are currently set at $150,000 per copied song. "
"For a recent (and unsuccessful) legal challenge to the RIAA's demand that an"
" ISP reveal the identity of a user accused of sharing more than 600 songs "
"through a family computer, see <citetitle>RIAA</citetitle> v. "
"<citetitle>Verizon Internet Services (In re. Verizon Internet "
"Services)</citetitle>, 240 F.  Supp. 2d 24 (D.D.C. 2003). Such a user could "
"face liability ranging as high as $90 million. Such astronomical figures "
"furnish the RIAA with a powerful arsenal in its prosecution of file sharers."
" Settlements ranging from $12,000 to $17,500 for four students accused of "
"heavy file sharing on university networks must have seemed a mere pittance "
"next to the $98 billion the RIAA could seek should the matter proceed to "
"court. See Elizabeth Young, <quote>Downloading Could Lead to Fines,</quote> "
"redandblack.com, August 2003, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #35</ulink>. For an example of the RIAA's targeting"
" of student file sharing, and of the subpoenas issued to universities to "
"reveal student file-sharer identities, see James Collins, <quote>RIAA Steps "
"Up Bid to Force BC, MIT to Name Students,</quote> <citetitle>Boston "
"Globe</citetitle>, 8 August 2003, D3, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #36</ulink>.  <placeholder type=\"indexterm\" "
"id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9385
msgid ""
"We could respond by simply pretending that it is not a chimera. We could, "
"with the RIAA, decide that every act of file sharing should be a felony. We "
"could prosecute families for millions of dollars in damages just because "
"file sharing occurred on a family computer. And we can get universities to "
"monitor all computer traffic to make sure that no computer is used to commit"
" this crime. These responses might be extreme, but each of them has either "
"been proposed or actually implemented.<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9432
msgid ""
"Alternatively, we could respond to file sharing the way many kids act as "
"though we've responded. We could totally legalize it. Let there be no "
"copyright liability, either civil or criminal, for making copyrighted "
"content available on the Net. Make file sharing like gossip: regulated, if "
"at all, by social norms but not by law."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9439
msgid ""
"Either response is possible. I think either would be a mistake.  Rather than"
" embrace one of these two extremes, we should embrace something that "
"recognizes the truth in both. And while I end this book with a sketch of a "
"system that does just that, my aim in the next chapter is to show just how "
"awful it would be for us to adopt the zero-tolerance extreme. I believe "
"<emphasis>either</emphasis> extreme would be worse than a reasonable "
"alternative.  But I believe the zero-tolerance solution would be the worse "
"of the two extremes."
msgstr ""

#.  PAGE BREAK 190
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9451
msgid ""
"Yet zero tolerance is increasingly our government's policy. In the middle of"
" the chaos that the Internet has created, an extraordinary land grab is "
"occurring. The law and technology are being shifted to give content holders "
"a kind of control over our culture that they have never had before. And in "
"this extremism, many an opportunity for new innovation and new creativity "
"will be lost."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9459
msgid ""
"I'm not talking about the opportunities for kids to <quote>steal</quote> "
"music. My focus instead is the commercial and cultural innovation that this "
"war will also kill. We have never seen the power to innovate spread so "
"broadly among our citizens, and we have just begun to see the innovation "
"that this power will unleash. Yet the Internet has already seen the passing "
"of one cycle of innovation around technologies to distribute content. The "
"law is responsible for this passing. As the vice president for global public"
" policy at one of these new innovators, eMusic.com, put it when criticizing "
"the DMCA's added protection for copyrighted material,"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:9472
msgid ""
"eMusic opposes music piracy. We are a distributor of copyrighted material, "
"and we want to protect those rights."
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:9476
msgid ""
"But building a technology fortress that locks in the clout of the major "
"labels is by no means the only way to protect copyright interests, nor is it"
" necessarily the best. It is simply too early to answer that question. "
"Market forces operating naturally may very well produce a totally different "
"industry model."
msgstr ""

#.  f3.
#. type: Content of: <book><part><chapter><blockquote><para><footnote><para>
#: freeculture.xml:9493
msgid ""
"WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital "
"Entertainment on the Internet and Other Media: Hearing Before the "
"Subcommittee on Telecommunications, Trade, and Consumer Protection, House "
"Committee on Commerce, 106th Cong. 29 (1999) (statement of Peter Harter, "
"vice president, Global Public Policy and Standards, EMusic.com), available "
"in LEXIS, Federal Document Clearing House Congressional Testimony File."
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:9483
msgid ""
"This is a critical point. The choices that industry sectors make with "
"respect to these systems will in many ways directly shape the market for "
"digital media and the manner in which digital media are distributed. This in"
" turn will directly influence the options that are available to consumers, "
"both in terms of the ease with which they will be able to access digital "
"media and the equipment that they will require to do so. Poor choices made "
"this early in the game will retard the growth of this market, hurting "
"everyone's interests.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:9507 freeculture.xml:9881
msgid "Vivendi Universal"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9504
msgid ""
"In April 2001, eMusic.com was purchased by Vivendi Universal, one of "
"<quote>the major labels.</quote> Its position on these matters has now "
"changed.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9510
msgid ""
"Reversing our tradition of tolerance now will not merely quash piracy. It "
"will sacrifice values that are important to this culture, and will kill "
"opportunities that could be extraordinarily valuable."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:9518
msgid "CHAPTER TWELVE: Harms"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9520
msgid ""
"<emphasis role='strong'>To fight</emphasis> <quote>piracy,</quote> to "
"protect <quote>property,</quote> the content industry has launched a war. "
"Lobbying and lots of campaign contributions have now brought the government "
"into this war. As with any war, this one will have both direct and "
"collateral damage. As with any war of prohibition, these damages will be "
"suffered most by our own people."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9528
msgid ""
"My aim so far has been to describe the consequences of this war, in "
"particular, the consequences for <quote>free culture.</quote> But my aim now"
" is to extend this description of consequences into an argument. Is this war"
" justified?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9534
msgid ""
"In my view, it is not. There is no good reason why this time, for the first "
"time, the law should defend the old against the new, just when the power of "
"the property called <quote>intellectual property</quote> is at its greatest "
"in our history."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9542
msgid ""
"Yet <quote>common sense</quote> does not see it this way. Common sense is "
"still on the side of the Causbys and the content industry. The extreme "
"claims of control in the name of property still resonate; the uncritical "
"rejection of <quote>piracy</quote> still has play."
msgstr ""

#.  PAGE BREAK 193
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:9550
msgid ""
"There will be many consequences of continuing this war. I want to describe "
"just three. All three might be said to be unintended. I am quite confident "
"the third is unintended. I'm less sure about the first two. The first two "
"protect modern RCAs, but there is no Howard Armstrong in the wings to fight "
"today's monopolists of culture."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:9557
msgid "Constraining Creators"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9559
msgid ""
"In the next ten years we will see an explosion of digital technologies.  "
"These technologies will enable almost anyone to capture and share content. "
"Capturing and sharing content, of course, is what humans have done since the"
" dawn of man. It is how we learn and communicate. But capturing and sharing "
"through digital technology is different. The fidelity and power are "
"different. You could send an e-mail telling someone about a joke you saw on "
"Comedy Central, or you could send the clip. You could write an essay about "
"the inconsistencies in the arguments of the politician you most love to "
"hate, or you could make a short film that puts statement against statement. "
"You could write a poem to express your love, or you could weave together a "
"string&mdash;a mash-up&mdash; of songs from your favorite artists in a "
"collage and make it available on the Net."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9574
msgid ""
"This digital <quote>capturing and sharing</quote> is in part an extension of"
" the capturing and sharing that has always been integral to our culture, and"
" in part it is something new. It is continuous with the Kodak, but it "
"explodes the boundaries of Kodak-like technologies. The technology of "
"digital <quote>capturing and sharing</quote> promises a world of "
"extraordinarily diverse creativity that can be easily and broadly shared. "
"And as that creativity is applied to democracy, it will enable a broad range"
" of citizens to use technology to express and criticize and contribute to "
"the culture all around."
msgstr ""

#.  PAGE BREAK 194
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9585
msgid ""
"Technology has thus given us an opportunity to do something with culture "
"that has only ever been possible for individuals in small groups, isolated "
"from others. Think about an old man telling a story to a collection of "
"neighbors in a small town. Now imagine that same storytelling extended "
"across the globe."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9595
msgid ""
"Yet all this is possible only if the activity is presumptively legal. In the"
" current regime of legal regulation, it is not. Forget file sharing for a "
"moment. Think about your favorite amazing sites on the Net. Web sites that "
"offer plot summaries from forgotten television shows; sites that catalog "
"cartoons from the 1960s; sites that mix images and sound to criticize "
"politicians or businesses; sites that gather newspaper articles on remote "
"topics of science or culture. There is a vast amount of creative work spread"
" across the Internet. But as the law is currently crafted, this work is "
"presumptively illegal."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:9605 freeculture.xml:9629
msgid "WorldCom"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:9608
msgid "doctors malpractice claims against"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:9624
msgid ""
"See Lynne W. Jeter, <citetitle>Disconnected: Deceit and Betrayal at "
"WorldCom</citetitle> (Hoboken, N.J.: John Wiley &amp; Sons, 2003), 176, 204;"
" for details of the settlement, see MCI press release, <quote>MCI Wins U.S. "
"District Court Approval for SEC Settlement</quote> (7 July 2003), available "
"at <ulink url=\"http://free-culture.cc/notes/\">link #37</ulink>.  "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:9645
msgid "Bush, George W."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:9636
msgid ""
"The bill, modeled after California's tort reform model, was passed in the "
"House of Representatives but defeated in a Senate vote in July 2003. For an "
"overview, see Tanya Albert, <quote>Measure Stalls in Senate: `We'll Be "
"Back,' Say Tort Reformers,</quote> amednews.com, 28 July 2003, available at "
"<ulink url=\"http://free-culture.cc/notes/\">link #38</ulink>, and "
"<quote>Senate Turns Back Malpractice Caps,</quote> CBSNews.com, 9 July 2003,"
" available at <ulink url=\"http://free-culture.cc/notes/\">link #39</ulink>."
" President Bush has continued to urge tort reform in recent months.  "
"<placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9611
msgid ""
"That presumption will increasingly chill creativity, as the examples of "
"extreme penalties for vague infringements continue to proliferate. It is "
"impossible to get a clear sense of what's allowed and what's not, and at the"
" same time, the penalties for crossing the line are astonishingly harsh.  "
"The four students who were threatened by the RIAA (Jesse Jordan of chapter "
"<xref xrefstyle=\"select: labelnumber\" linkend=\"catalogs\"/> was just one)"
" were threatened with a $98 billion lawsuit for building search engines that"
" permitted songs to be copied. Yet World-Com&mdash;which defrauded investors"
" of $11 billion, resulting in a loss to investors in market capitalization "
"of over $200 billion&mdash;received a fine of a mere $750 "
"million.<placeholder type=\"footnote\" id=\"0\"/> And under legislation "
"being pushed in Congress right now, a doctor who negligently removes the "
"wrong leg in an operation would be liable for no more than $250,000 in "
"damages for pain and suffering.<placeholder type=\"footnote\" id=\"1\"/> Can"
" common sense recognize the absurdity in a world where the maximum fine for "
"downloading two songs off the Internet is more than the fine for a doctor's "
"negligently butchering a patient?"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:9651
msgid "art, underground"
msgstr ""

#.  f3.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:9672
msgid ""
"See Danit Lidor, <quote>Artists Just Wanna Be Free,</quote> "
"<citetitle>Wired</citetitle>, 7 July 2003, available at <ulink url=\"http"
"://free-culture.cc/notes/\">link #40</ulink>. For an overview of the "
"exhibition, see <ulink url=\"http://free-culture.cc/notes/\">link "
"#41</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9653
msgid ""
"The consequence of this legal uncertainty, tied to these extremely high "
"penalties, is that an extraordinary amount of creativity will either never "
"be exercised, or never be exercised in the open. We drive this creative "
"process underground by branding the modern-day Walt Disneys "
"<quote>pirates.</quote> We make it impossible for businesses to rely upon a "
"public domain, because the boundaries of the public domain are designed to "
"be unclear. It never pays to do anything except pay for the right to create,"
" and hence only those who can pay are allowed to create. As was the case in "
"the Soviet Union, though for very different reasons, we will begin to see a "
"world of underground art&mdash;not because the message is necessarily "
"political, or because the subject is controversial, but because the very act"
" of creating the art is legally fraught. Already, exhibits of <quote>illegal"
" art</quote> tour the United States.<placeholder type=\"footnote\" "
"id=\"0\"/> In what does their <quote>illegality</quote> consist? In the act "
"of mixing the culture around us with an expression that is critical or "
"reflective."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9683
msgid ""
"Part of the reason for this fear of illegality has to do with the changing "
"law. I described that change in detail in chapter <xref xrefstyle=\"select: "
"labelnumber\" linkend=\"property-i\"/>. But an even bigger part has to do "
"with the increasing ease with which infractions can be tracked. As users of "
"file-sharing systems discovered in 2002, it is a trivial matter for "
"copyright owners to get courts to order Internet service providers to reveal"
" who has what content. It is as if your cassette tape player transmitted a "
"list of the songs that you played in the privacy of your own home that "
"anyone could tune into for whatever reason they chose."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9696
msgid ""
"Never in our history has a painter had to worry about whether his painting "
"infringed on someone else's work; but the modern-day painter, using the "
"tools of Photoshop, sharing content on the Web, must worry all the time. "
"Images are all around, but the only safe images to use in the act of "
"creation are those purchased from Corbis or another image farm. And in "
"purchasing, censoring happens. There is a free market in pencils; we needn't"
" worry about its effect on creativity. But there is a highly regulated, "
"monopolized market in cultural icons; the right to cultivate and transform "
"them is not similarly free."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9707
msgid ""
"Lawyers rarely see this because lawyers are rarely empirical. As I described"
" in chapter <xref xrefstyle=\"select: labelnumber\" linkend=\"recorders\"/>,"
" in response to the story about documentary filmmaker Jon Else, I have been "
"lectured again and again by lawyers who insist Else's use was fair use, and "
"hence I am wrong to say that the law regulates such a use."
msgstr ""

#.  PAGE BREAK 196
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9718
msgid ""
"But fair use in America simply means the right to hire a lawyer to defend "
"your right to create. And as lawyers love to forget, our system for "
"defending rights such as fair use is astonishingly bad&mdash;in practically "
"every context, but especially here. It costs too much, it delivers too "
"slowly, and what it delivers often has little connection to the justice "
"underlying the claim. The legal system may be tolerable for the very rich.  "
"For everyone else, it is an embarrassment to a tradition that prides itself "
"on the rule of law."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9728
msgid ""
"Judges and lawyers can tell themselves that fair use provides adequate "
"<quote>breathing room</quote> between regulation by the law and the access "
"the law should allow. But it is a measure of how out of touch our legal "
"system has become that anyone actually believes this. The rules that "
"publishers impose upon writers, the rules that film distributors impose upon"
" filmmakers, the rules that newspapers impose upon journalists&mdash; these "
"are the real laws governing creativity. And these rules have little "
"relationship to the <quote>law</quote> with which judges comfort themselves."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9739
msgid ""
"For in a world that threatens $150,000 for a single willful infringement of "
"a copyright, and which demands tens of thousands of dollars to even defend "
"against a copyright infringement claim, and which would never return to the "
"wrongfully accused defendant anything of the costs she suffered to defend "
"her right to speak&mdash;in that world, the astonishingly broad regulations "
"that pass under the name <quote>copyright</quote> silence speech and "
"creativity. And in that world, it takes a studied blindness for people to "
"continue to believe they live in a culture that is free."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9750
msgid "As Jed Horovitz, the businessman behind Video Pipeline, said to me,"
msgstr ""

#.  PAGE BREAK 197
#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:9754
msgid ""
"We're losing [creative] opportunities right and left. Creative people are "
"being forced not to express themselves. Thoughts are not being expressed. "
"And while a lot of stuff may [still] be created, it still won't get "
"distributed. Even if the stuff gets made &hellip; you're not going to get it"
" distributed in the mainstream media unless you've got a little note from a "
"lawyer saying, <quote>This has been cleared.</quote> You're not even going "
"to get it on PBS without that kind of permission. That's the point at which "
"they control it."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:9767
msgid "Constraining Innovators"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:9768
msgid "innovation hampered by"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:9769
msgid "industry establishment opposed to"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9772
msgid ""
"The story of the last section was a crunchy-lefty story&mdash;creativity "
"quashed, artists who can't speak, yada yada yada. Maybe that doesn't get you"
" going. Maybe you think there's enough weird art out there, and enough "
"expression that is critical of what seems to be just about everything.  And "
"if you think that, you might think there's little in this story to worry "
"you."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9781
msgid ""
"But there's an aspect of this story that is not lefty in any sense.  Indeed,"
" it is an aspect that could be written by the most extreme promarket "
"ideologue. And if you're one of these sorts (and a special one at that, "
"<xref xrefstyle=\"select: pagenumber\" linkend=\"innovators\"/> pages into a"
" book like this), then you can see this other aspect by substituting "
"<quote>free market</quote> every place I've spoken of <quote>free "
"culture.</quote> The point is the same, even if the interests affecting "
"culture are more fundamental."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9792
msgid ""
"The charge I've been making about the regulation of culture is the same "
"charge free marketers make about regulating markets. Everyone, of course, "
"concedes that some regulation of markets is necessary&mdash;at a minimum, we"
" need rules of property and contract, and courts to enforce both. Likewise, "
"in this culture debate, everyone concedes that at least some framework of "
"copyright is also required. But both perspectives vehemently insist that "
"just because some regulation is good, it doesn't follow that more regulation"
" is better. And both perspectives are constantly attuned to the ways in "
"which regulation simply enables the powerful industries of today to protect "
"themselves against the competitors of tomorrow."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:9805 freeculture.xml:9926 freeculture.xml:9932
msgid "Barry, Hank"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:9806 freeculture.xml:9938
msgid "venture capitalists"
msgstr ""

#.  PAGE BREAK 198
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9808
msgid ""
"This is the single most dramatic effect of the shift in regulatory strategy "
"that I described in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"property-i\"/>. The consequence of this massive threat of "
"liability tied to the murky boundaries of copyright law is that innovators "
"who want to innovate in this space can safely innovate only if they have the"
" sign-off from last generation's dominant industries.  That lesson has been "
"taught through a series of cases that were designed and executed to teach "
"venture capitalists a lesson. That lesson&mdash;what former Napster CEO Hank"
" Barry calls a <quote>nuclear pall</quote> that has fallen over the "
"Valley&mdash;has been learned."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9823
msgid ""
"Consider one example to make the point, a story whose beginning I told in "
"<citetitle>The Future of Ideas</citetitle> and which has progressed in a way"
" that even I (pessimist extraordinaire) would never have predicted."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:9827
msgid "MP3.com"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:9828
msgid "my.mp3.com"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:9829
msgid "Roberts, Michael"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9831
msgid ""
"In 1997, Michael Roberts launched a company called MP3.com.  MP3.com was "
"keen to remake the music business. Their goal was not just to facilitate new"
" ways to get access to content. Their goal was also to facilitate new ways "
"to create content. Unlike the major labels, MP3.com offered creators a venue"
" to distribute their creativity, without demanding an exclusive engagement "
"from the creators."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:9839
msgid "preference data on"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9841
msgid ""
"To make this system work, however, MP3.com needed a reliable way to "
"recommend music to its users. The idea behind this alternative was to "
"leverage the revealed preferences of music listeners to recommend new "
"artists. If you like Lyle Lovett, you're likely to enjoy Bonnie Raitt. And "
"so on."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9848
msgid ""
"This idea required a simple way to gather data about user preferences.  "
"MP3.com came up with an extraordinarily clever way to gather this preference"
" data. In January 2000, the company launched a service called my.mp3.com. "
"Using software provided by MP3.com, a user would sign into an account and "
"then insert into her computer a CD. The software would identify the CD, and "
"then give the user access to that content.  So, for example, if you inserted"
" a CD by Jill Sobule, then wherever you were&mdash;at work or at "
"home&mdash;you could get access to that music once you signed into your "
"account. The system was therefore a kind of music-lockbox."
msgstr ""

#.  PAGE BREAK 199
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9860
msgid ""
"No doubt some could use this system to illegally copy content. But that "
"opportunity existed with or without MP3.com. The aim of the my.mp3.com "
"service was to give users access to their own content, and as a by-product, "
"by seeing the content they already owned, to discover the kind of content "
"the users liked."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9870
msgid ""
"To make this system function, however, MP3.com needed to copy 50,000 CDs to "
"a server. (In principle, it could have been the user who uploaded the music,"
" but that would have taken a great deal of time, and would have produced a "
"product of questionable quality.) It therefore purchased 50,000 CDs from a "
"store, and started the process of making copies of those CDs. Again, it "
"would not serve the content from those copies to anyone except those who "
"authenticated that they had a copy of the CD they wanted to access. So while"
" this was 50,000 copies, it was 50,000 copies directed at giving customers "
"something they had already bought."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:9882 freeculture.xml:9927
msgid "distribution technology targeted in"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:9887
msgid "outsize penalties of"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9889
msgid ""
"Nine days after MP3.com launched its service, the five major labels, headed "
"by the RIAA, brought a lawsuit against MP3.com. MP3.com settled with four of"
" the five. Nine months later, a federal judge found MP3.com to have been "
"guilty of willful infringement with respect to the fifth. Applying the law "
"as it is, the judge imposed a fine against MP3.com of $118 million. MP3.com "
"then settled with the remaining plaintiff, Vivendi Universal, paying over "
"$54 million. Vivendi purchased MP3.com just about a year later."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9899
msgid ""
"That part of the story I have told before. Now consider its conclusion."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9902
msgid ""
"After Vivendi purchased MP3.com, Vivendi turned around and filed a "
"malpractice lawsuit against the lawyers who had advised it that they had a "
"good faith claim that the service they wanted to offer would be considered "
"legal under copyright law. This lawsuit alleged that it should have been "
"obvious that the courts would find this behavior illegal; therefore, this "
"lawsuit sought to punish any lawyer who had dared to suggest that the law "
"was less restrictive than the labels demanded."
msgstr ""

#.  PAGE BREAK 200
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9913
msgid ""
"The clear purpose of this lawsuit (which was settled for an unspecified "
"amount shortly after the story was no longer covered in the press) was to "
"send an unequivocal message to lawyers advising clients in this space: It is"
" not just your clients who might suffer if the content industry directs its "
"guns against them. It is also you. So those of you who believe the law "
"should be less restrictive should realize that such a view of the law will "
"cost you and your firm dearly."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:9928
msgid "BMW"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:9929
msgid "cars, MP3 sound systems in"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:9931
msgid "Hummer, John"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:9933
msgid "Hummer Winblad"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:9934
msgid "MP3 players"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:9935
msgid "venture capital for"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><blockquote><para><footnote><para><indexterm><primary>
#: freeculture.xml:9936 freeculture.xml:9982
msgid "Needleman, Rafe"
msgstr ""

#.  f4.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:9946
msgid ""
"See Joseph Menn, <quote>Universal, EMI Sue Napster Investor,</quote> "
"<citetitle>Los Angeles Times</citetitle>, 23 April 2003. For a parallel "
"argument about the effects on innovation in the distribution of music, see "
"Janelle Brown, <quote>The Music Revolution Will Not Be Digitized,</quote> "
"Salon.com, 1 June 2001, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #42</ulink>.  See also Jon Healey, <quote>Online "
"Music Services Besieged,</quote> <citetitle>Los Angeles Times</citetitle>, "
"28 May 2001."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9940
msgid ""
"This strategy is not just limited to the lawyers. In April 2003, Universal "
"and EMI brought a lawsuit against Hummer Winblad, the venture capital firm "
"(VC) that had funded Napster at a certain stage of its development, its "
"cofounder (John Hummer), and general partner (Hank Barry).<placeholder "
"type=\"footnote\" id=\"0\"/> The claim here, as well, was that the VC should"
" have recognized the right of the content industry to control how the "
"industry should develop. They should be held personally liable for funding a"
" company whose business turned out to be beyond the law. Here again, the aim"
" of the lawsuit is transparent: Any VC now recognizes that if you fund a "
"company whose business is not approved of by the dinosaurs, you are at risk "
"not just in the marketplace, but in the courtroom as well.  Your investment "
"buys you not only a company, it also buys you a lawsuit.  So extreme has the"
" environment become that even car manufacturers are afraid of technologies "
"that touch content. In an article in <citetitle>Business 2.0</citetitle>, "
"Rafe Needleman describes a discussion with BMW:"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:9978
msgid ""
"Rafe Needleman, <quote>Driving in Cars with MP3s,</quote> "
"<citetitle>Business 2.0</citetitle>, 16 June 2003, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #43</ulink>. I am grateful to Dr."
" Mohammad Al-Ubaydli for this example.  <placeholder type=\"indexterm\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:9969
msgid ""
"I asked why, with all the storage capacity and computer power in the car, "
"there was no way to play MP3 files. I was told that BMW engineers in Germany"
" had rigged a new vehicle to play MP3s via the car's built-in sound system, "
"but that the company's marketing and legal departments weren't comfortable "
"with pushing this forward for release stateside. Even today, no new cars are"
" sold in the United States with bona fide MP3 players. &hellip; <placeholder"
" type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:9990
msgid ""
"This is the world of the mafia&mdash;filled with <quote>your money or your "
"life</quote> offers, governed in the end not by courts but by the threats "
"that the law empowers copyright holders to exercise. It is a system that "
"will obviously and necessarily stifle new innovation. It is hard enough to "
"start a company. It is impossibly hard if that company is constantly "
"threatened by litigation."
msgstr ""

#.  PAGE BREAK 201
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10000
msgid ""
"The point is not that businesses should have a right to start illegal "
"enterprises. The point is the definition of <quote>illegal.</quote> The law "
"is a mess of uncertainty. We have no good way to know how it should apply to"
" new technologies. Yet by reversing our tradition of judicial deference, and"
" by embracing the astonishingly high penalties that copyright law imposes, "
"that uncertainty now yields a reality which is far more conservative than is"
" right. If the law imposed the death penalty for parking tickets, we'd not "
"only have fewer parking tickets, we'd also have much less driving. The same "
"principle applies to innovation. If innovation is constantly checked by this"
" uncertain and unlimited liability, we will have much less vibrant "
"innovation and much less creativity."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10015
msgid ""
"The point is directly parallel to the crunchy-lefty point about fair use. "
"Whatever the <quote>real</quote> law is, realism about the effect of law in "
"both contexts is the same. This wildly punitive system of regulation will "
"systematically stifle creativity and innovation. It will protect some "
"industries and some creators, but it will harm industry and creativity "
"generally. Free market and free culture depend upon vibrant competition.  "
"Yet the effect of the law today is to stifle just this kind of competition."
"  The effect is to produce an overregulated culture, just as the effect of "
"too much control in the market is to produce an overregulated-regulated "
"market."
msgstr ""

#.  PAGE BREAK 202
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10027
msgid ""
"The building of a permission culture, rather than a free culture, is the "
"first important way in which the changes I have described will burden "
"innovation. A permission culture means a lawyer's culture&mdash;a culture in"
" which the ability to create requires a call to your lawyer. Again, I am not"
" antilawyer, at least when they're kept in their proper place. I am "
"certainly not antilaw. But our profession has lost the sense of its limits. "
"And leaders in our profession have lost an appreciation of the high costs "
"that our profession imposes upon others. The inefficiency of the law is an "
"embarrassment to our tradition. And while I believe our profession should "
"therefore do everything it can to make the law more efficient, it should at "
"least do everything it can to limit the reach of the law where the law is "
"not doing any good. The transaction costs buried within a permission culture"
" are enough to bury a wide range of creativity.  Someone needs to do a lot "
"of justifying to justify that result."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10046
msgid ""
"<emphasis role='strong'>The uncertainty</emphasis> of the law is one burden "
"on innovation. There is a second burden that operates more directly. This is"
" the effort by many in the content industry to use the law to directly "
"regulate the technology of the Internet so that it better protects their "
"content."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10053
msgid ""
"The motivation for this response is obvious. The Internet enables the "
"efficient spread of content. That efficiency is a feature of the Internet's "
"design. But from the perspective of the content industry, this feature is a "
"<quote>bug.</quote> The efficient spread of content means that content "
"distributors have a harder time controlling the distribution of content.  "
"One obvious response to this efficiency is thus to make the Internet less "
"efficient. If the Internet enables <quote>piracy,</quote> then, this "
"response says, we should break the kneecaps of the Internet."
msgstr ""

#.  f6.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:10068
msgid ""
"<quote>Copyright and Digital Media in a Post-Napster World,</quote> "
"GartnerG2 and the Berkman Center for Internet and Society at Harvard Law "
"School (2003), 33&ndash;35, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #44</ulink>."
msgstr ""

#.  f7.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:10081
msgid "GartnerG2, 26&ndash;27."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10064
msgid ""
"The examples of this form of legislation are many. At the urging of the "
"content industry, some in Congress have threatened legislation that would "
"require computers to determine whether the content they access is protected "
"or not, and to disable the spread of protected content.<placeholder "
"type=\"footnote\" id=\"0\"/> Congress has already launched proceedings to "
"explore a mandatory <quote>broadcast flag</quote> that would be required on "
"any device capable of transmitting digital video (i.e., a computer), and "
"that would disable the copying of any content that is marked with a "
"broadcast flag. Other members of Congress have proposed immunizing content "
"providers from liability for technology they might deploy that would hunt "
"down copyright violators and disable their machines.<placeholder "
"type=\"footnote\" id=\"1\"/>"
msgstr ""

#.  PAGE BREAK 203
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10085
msgid ""
"In one sense, these solutions seem sensible. If the problem is the code, why"
" not regulate the code to remove the problem. But any regulation of "
"technical infrastructure will always be tuned to the particular technology "
"of the day. It will impose significant burdens and costs on the technology, "
"but will likely be eclipsed by advances around exactly those requirements."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:10094 freeculture.xml:12004
msgid "Intel"
msgstr ""

#.  f8.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:10100
msgid ""
"See David McGuire, <quote>Tech Execs Square Off Over Piracy,</quote> "
"Newsbytes, February 2002 (Entertainment)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10096
msgid ""
"In March 2002, a broad coalition of technology companies, led by Intel, "
"tried to get Congress to see the harm that such legislation would "
"impose.<placeholder type=\"footnote\" id=\"0\"/> Their argument was "
"obviously not that copyright should not be protected. Instead, they argued, "
"any protection should not do more harm than good."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10108
msgid ""
"<emphasis role='strong'>There is one</emphasis> more obvious way in which "
"this war has harmed innovation&mdash;again, a story that will be quite "
"familiar to the free market crowd."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10113
msgid ""
"Copyright may be property, but like all property, it is also a form of "
"regulation. It is a regulation that benefits some and harms others.  When "
"done right, it benefits creators and harms leeches. When done wrong, it is "
"regulation the powerful use to defeat competitors."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:10131
msgid "Digital Copyright (Litman)"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:10129
msgid ""
"Jessica Litman, <citetitle>Digital Copyright</citetitle> (Amherst, N.Y.: "
"Prometheus Books, 2001).  <placeholder type=\"indexterm\" id=\"0\"/> "
"<placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10123
msgid ""
"As I described in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"property-i\"/>, despite this feature of copyright as regulation, "
"and subject to important qualifications outlined by Jessica Litman in her "
"book <citetitle>Digital Copyright</citetitle>,<placeholder type=\"footnote\""
" id=\"0\"/> overall this history of copyright is not bad. As chapter <xref "
"xrefstyle=\"select: labelnumber\" linkend=\"property-i\"/> details, when new"
" technologies have come along, Congress has struck a balance to assure that "
"the new is protected from the old. Compulsory, or statutory, licenses have "
"been one part of that strategy. Free use (as in the case of the VCR) has "
"been another."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10142
msgid ""
"But that pattern of deference to new technologies has now changed with the "
"rise of the Internet. Rather than striking a balance between the claims of a"
" new technology and the legitimate rights of content creators, both the "
"courts and Congress have imposed legal restrictions that will have the "
"effect of smothering the new to benefit the old."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:10148
msgid "radio on"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:10153
msgid "Grokster, Ltd."
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:10153
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> The only circuit court exception "
"is found in <citetitle>Recording Industry Association of America "
"(RIAA)</citetitle> v. <citetitle>Diamond Multimedia Systems</citetitle>, 180"
" F. 3d 1072 (9th Cir. 1999). There the court of appeals for the Ninth "
"Circuit reasoned that makers of a portable MP3 player were not liable for "
"contributory copyright infringement for a device that is unable to record or"
" redistribute music (a device whose only copying function is to render "
"portable a music file already stored on a user's hard drive).  At the "
"district court level, the only exception is found in <citetitle>Metro-"
"Goldwyn-Mayer Studios, Inc</citetitle>. v. <citetitle>Grokster, "
"Ltd</citetitle>., 259 F. Supp. 2d 1029 (C.D.  Cal., 2003), where the court "
"found the link between the distributor and any given user's conduct too "
"attenuated to make the distributor liable for contributory or vicarious "
"infringement liability."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:10172
msgid "Tauzin, Billy"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:10174
msgid "Hollings, Fritz"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:10172
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
"id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> <placeholder "
"type=\"indexterm\" id=\"3\"/> For example, in July 2002, Representative "
"Howard Berman introduced the Peer-to-Peer Piracy Prevention Act (H.R. 5211),"
" which would immunize copyright holders from liability for damage done to "
"computers when the copyright holders use technology to stop copyright "
"infringement. In August 2002, Representative Billy Tauzin introduced a bill "
"to mandate that technologies capable of rebroadcasting digital copies of "
"films broadcast on TV (i.e., computers) respect a <quote>broadcast "
"flag</quote> that would disable copying of that content. And in March of the"
" same year, Senator Fritz Hollings introduced the Consumer Broadband and "
"Digital Television Promotion Act, which mandated copyright protection "
"technology in all digital media devices. See GartnerG2, <quote>Copyright and"
" Digital Media in a Post-Napster World,</quote> 27 June 2003, 33&ndash;34, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #44</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10151
msgid ""
"The response by the courts has been fairly universal.<placeholder "
"type=\"footnote\" id=\"0\"/> It has been mirrored in the responses "
"threatened and actually implemented by Congress. I won't catalog all of "
"those responses here.<placeholder type=\"footnote\" id=\"1\"/> But there is "
"one example that captures the flavor of them all. This is the story of the "
"demise of Internet radio."
msgstr ""

#.  PAGE BREAK 204
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10199
msgid ""
"As I described in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"pirates\"/>, when a radio station plays a song, the recording "
"artist doesn't get paid for that <quote>radio performance</quote> unless he "
"or she is also the composer. So, for example if Marilyn Monroe had recorded "
"a version of <quote>Happy Birthday</quote>&mdash;to memorialize her famous "
"performance before President Kennedy at Madison Square Garden&mdash; then "
"whenever that recording was played on the radio, the current copyright "
"owners of <quote>Happy Birthday</quote> would get some money, whereas "
"Marilyn Monroe would not."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10210
msgid ""
"The reasoning behind this balance struck by Congress makes some sense. The "
"justification was that radio was a kind of advertising. The recording artist"
" thus benefited because by playing her music, the radio station was making "
"it more likely that her records would be purchased.  Thus, the recording "
"artist got something, even if only indirectly.  Probably this reasoning had "
"less to do with the result than with the power of radio stations: Their "
"lobbyists were quite good at stopping any efforts to get Congress to require"
" compensation to the recording artists."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10221
msgid ""
"Enter Internet radio. Like regular radio, Internet radio is a technology to "
"stream content from a broadcaster to a listener. The broadcast travels "
"across the Internet, not across the ether of radio spectrum.  Thus, I can "
"<quote>tune in</quote> to an Internet radio station in Berlin while sitting "
"in San Francisco, even though there's no way for me to tune in to a regular "
"radio station much beyond the San Francisco metropolitan area."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10230
msgid ""
"This feature of the architecture of Internet radio means that there are "
"potentially an unlimited number of radio stations that a user could tune in "
"to using her computer, whereas under the existing architecture for broadcast"
" radio, there is an obvious limit to the number of broadcasters and clear "
"broadcast frequencies. Internet radio could therefore be more competitive "
"than regular radio; it could provide a wider range of selections. And "
"because the potential audience for Internet radio is the whole world, niche "
"stations could easily develop and market their content to a relatively large"
" number of users worldwide. According to some estimates, more than eighty "
"million users worldwide have tuned in to this new form of radio."
msgstr ""

#.  PAGE BREAK 205
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10246
msgid ""
"Internet radio is thus to radio what FM was to AM. It is an improvement "
"potentially vastly more significant than the FM improvement over AM, since "
"not only is the technology better, so, too, is the competition. Indeed, "
"there is a direct parallel between the fight to establish FM radio and the "
"fight to protect Internet radio. As one author describes Howard Armstrong's "
"struggle to enable FM radio,"
msgstr ""

#.  f12.
#. type: Content of:
#. <book><part><chapter><section><blockquote><para><footnote><para>
#: freeculture.xml:10270
msgid "Lessing, 239."
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:10256
msgid ""
"An almost unlimited number of FM stations was possible in the shortwaves, "
"thus ending the unnatural restrictions imposed on radio in the crowded "
"longwaves. If FM were freely developed, the number of stations would be "
"limited only by economics and competition rather than by technical "
"restrictions. &hellip; Armstrong likened the situation that had grown up in "
"radio to that following the invention of the printing press, when "
"governments and ruling interests attempted to control this new instrument of"
" mass communications by imposing restrictive licenses on it. This tyranny "
"was broken only when it became possible for men freely to acquire printing "
"presses and freely to run them. FM in this sense was as great an invention "
"as the printing presses, for it gave radio the opportunity to strike off its"
" shackles.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  f13.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:10280
msgid "Ibid., 229."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10275
msgid ""
"This potential for FM radio was never realized&mdash;not because Armstrong "
"was wrong about the technology, but because he underestimated the power of "
"<quote>vested interests, habits, customs and legislation</quote><placeholder"
" type=\"footnote\" id=\"0\"/> to retard the growth of this competing "
"technology."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10285
msgid ""
"Now the very same claim could be made about Internet radio. For again, there"
" is no technical limitation that could restrict the number of Internet radio"
" stations. The only restrictions on Internet radio are those imposed by the "
"law. Copyright law is one such law. So the first question we should ask is, "
"what copyright rules would govern Internet radio?"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:10294
msgid "on radio"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:10298
msgid "Internet radio hampered by"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:10299 freeculture.xml:10452
msgid "on Internet radio fees"
msgstr ""

#.  PAGE BREAK 206
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10302
msgid ""
"But here the power of the lobbyists is reversed. Internet radio is a new "
"industry. The recording artists, on the other hand, have a very powerful "
"lobby, the RIAA. Thus when Congress considered the phenomenon of Internet "
"radio in 1995, the lobbyists had primed Congress to adopt a different rule "
"for Internet radio than the rule that applies to terrestrial radio. While "
"terrestrial radio does not have to pay our hypothetical Marilyn Monroe when "
"it plays her hypothetical recording of <quote>Happy Birthday</quote> on the "
"air, <emphasis>Internet radio does</emphasis>. Not only is the law not "
"neutral toward Internet radio&mdash;the law actually burdens Internet radio "
"more than it burdens terrestrial radio."
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:10341
msgid "CARP (Copyright Arbitration Royalty Panel)"
msgstr ""

#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:10324
msgid ""
"This example was derived from fees set by the original Copyright Arbitration"
" Royalty Panel (CARP) proceedings, and is drawn from an example offered by "
"Professor William Fisher. Conference Proceedings, iLaw (Stanford), 3 July "
"2003, on file with author. Professors Fisher and Zittrain submitted "
"testimony in the CARP proceeding that was ultimately rejected.  See Jonathan"
" Zittrain, Digital Performance Right in Sound Recordings and Ephemeral "
"Recordings, Docket No. 2000-9, CARP DTRA 1 and 2, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #45</ulink>.  For an excellent "
"analysis making a similar point, see Randal C. Picker, <quote>Copyright as "
"Entry Policy: The Case of Digital Distribution,</quote> <citetitle>Antitrust"
" Bulletin</citetitle> (Summer/Fall 2002): 461: <quote>This was not "
"confusion, these are just old-fashioned entry barriers. Analog radio "
"stations are protected from digital entrants, reducing entry in radio and "
"diversity. Yes, this is done in the name of getting royalties to copyright "
"holders, but, absent the play of powerful interests, that could have been "
"done in a media-neutral way.</quote> <placeholder type=\"indexterm\" "
"id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10317
msgid ""
"This financial burden is not slight. As Harvard law professor William Fisher"
" estimates, if an Internet radio station distributed adfree popular music to"
" (on average) ten thousand listeners, twenty-four hours a day, the total "
"artist fees that radio station would owe would be over $1 million a "
"year.<placeholder type=\"footnote\" id=\"0\"/> A regular radio station "
"broadcasting the same content would pay no equivalent fee."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10353
msgid ""
"The burden is not financial only. Under the original rules that were "
"proposed, an Internet radio station (but not a terrestrial radio station) "
"would have to collect the following data from <emphasis>every listening "
"transaction</emphasis>:"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10361
msgid "name of the service;"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10364
msgid "channel of the program (AM/FM stations use station ID);"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10367
msgid "type of program (archived/looped/live);"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10370
msgid "date of transmission;"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10373
msgid "time of transmission;"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10376
msgid "time zone of origination of transmission;"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10379
msgid ""
"numeric designation of the place of the sound recording within the program;"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10382
msgid "duration of transmission (to nearest second);"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10385
msgid "sound recording title;"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10388
msgid "ISRC code of the recording;"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10391
msgid ""
"release year of the album per copyright notice and in the case of "
"compilation albums, the release year of the album and copy- right date of "
"the track;"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10394
msgid "featured recording artist;"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10397
msgid "retail album title;"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10400
msgid "recording label;"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10403
msgid "UPC code of the retail album;"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10406
msgid "catalog number;"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10409
msgid "copyright owner information;"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10412
msgid "musical genre of the channel or program (station format);"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10415
msgid "name of the service or entity;"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10418
msgid "channel or program;"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10421
msgid "date and time that the user logged in (in the user's time zone);"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10424
msgid "date and time that the user logged out (in the user's time zone);"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10427
msgid "time zone where the signal was received (user);"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10430
msgid "unique user identifier;"
msgstr ""

#. type: Content of:
#. <book><part><chapter><section><orderedlist><listitem><para>
#: freeculture.xml:10433
msgid "the country in which the user received the transmissions."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10438
msgid ""
"The Librarian of Congress eventually suspended these reporting requirements,"
" pending further study. And he also changed the original rates set by the "
"arbitration panel charged with setting rates. But the basic difference "
"between Internet radio and terrestrial radio remains: Internet radio has to "
"pay a <emphasis>type of copyright fee</emphasis> that terrestrial radio does"
" not."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10446
msgid ""
"Why? What justifies this difference? Was there any study of the economic "
"consequences from Internet radio that would justify these differences? Was "
"the motive to protect artists against piracy?"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:10450 freeculture.xml:15255
msgid "Real Networks"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10456
msgid ""
"In a rare bit of candor, one RIAA expert admitted what seemed obvious to "
"everyone at the time. As Alex Alben, vice president for Public Policy at "
"Real Networks, told me,"
msgstr ""

#.  PAGE BREAK 208
#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:10462
msgid ""
"The RIAA, which was representing the record labels, presented some testimony"
" about what they thought a willing buyer would pay to a willing seller, and "
"it was much higher. It was ten times higher than what radio stations pay to "
"perform the same songs for the same period of time. And so the attorneys "
"representing the webcasters asked the RIAA, &hellip; <quote>How do you come "
"up with a rate that's so much higher? Why is it worth more than radio? "
"Because here we have hundreds of thousands of webcasters who want to pay, "
"and that should establish the market rate, and if you set the rate so high, "
"you're going to drive the small webcasters out of business. &hellip;</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:10478
msgid ""
"And the RIAA experts said, <quote>Well, we don't really model this as an "
"industry with thousands of webcasters, <emphasis>we think it should be an "
"industry with, you know, five or seven big players who can pay a high rate "
"and it's a stable, predictable market</emphasis>.</quote> (Emphasis added.)"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10490
msgid ""
"Translation: The aim is to use the law to eliminate competition, so that "
"this platform of potentially immense competition, which would cause the "
"diversity and range of content available to explode, would not cause pain to"
" the dinosaurs of old. There is no one, on either the right or the left, who"
" should endorse this use of the law. And yet there is practically no one, on"
" either the right or the left, who is doing anything effective to prevent "
"it."
msgstr ""

#. type: Content of: <book><part><chapter><section><title>
#: freeculture.xml:10506
msgid "Corrupting Citizens"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10508
msgid ""
"Overregulation stifles creativity. It smothers innovation. It gives "
"dinosaurs a veto over the future. It wastes the extraordinary opportunity "
"for a democratic creativity that digital technology enables."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10514
msgid ""
"In addition to these important harms, there is one more that was important "
"to our forebears, but seems forgotten today. Overregulation corrupts "
"citizens and weakens the rule of law."
msgstr ""

#.  f15.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:10523
msgid ""
"Mike Graziano and Lee Rainie, <quote>The Music Downloading Deluge,</quote> "
"Pew Internet and American Life Project (24 April 2001), available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #46</ulink>.  The Pew Internet "
"and American Life Project reported that 37 million Americans had downloaded "
"music files from the Internet by early 2001."
msgstr ""

#.  PAGE BREAK 209
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10519
msgid ""
"The war that is being waged today is a war of prohibition. As with every war"
" of prohibition, it is targeted against the behavior of a very large number "
"of citizens. According to <citetitle>The New York Times</citetitle>, 43 "
"million Americans downloaded music in May 2002.<placeholder "
"type=\"footnote\" id=\"0\"/> According to the RIAA, the behavior of those 43"
" million Americans is a felony. We thus have a set of rules that transform "
"20 percent of America into criminals. As the RIAA launches lawsuits against "
"not only the Napsters and Kazaas of the world, but against students building"
" search engines, and increasingly against ordinary users downloading "
"content, the technologies for sharing will advance to further protect and "
"hide illegal use. It is an arms race or a civil war, with the extremes of "
"one side inviting a more extreme response by the other."
msgstr ""

#.  f16.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:10557
msgid ""
"Alex Pham, <quote>The Labels Strike Back: N.Y. Girl Settles RIAA "
"Case,</quote> <citetitle>Los Angeles Times</citetitle>, 10 September 2003, "
"Business."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10544
msgid ""
"The content industry's tactics exploit the failings of the American legal "
"system. When the RIAA brought suit against Jesse Jordan, it knew that in "
"Jordan it had found a scapegoat, not a defendant. The threat of having to "
"pay either all the money in the world in damages ($15,000,000) or almost all"
" the money in the world to defend against paying all the money in the world "
"in damages ($250,000 in legal fees)  led Jordan to choose to pay all the "
"money he had in the world ($12,000) to make the suit go away. The same "
"strategy animates the RIAA's suits against individual users. In September "
"2003, the RIAA sued 261 individuals&mdash;including a twelve-year-old girl "
"living in public housing and a seventy-year-old man who had no idea what "
"file sharing was.<placeholder type=\"footnote\" id=\"0\"/> As these "
"scapegoats discovered, it will always cost more to defend against these "
"suits than it would cost to simply settle. (The twelve year old, for "
"example, like Jesse Jordan, paid her life savings of $2,000 to settle the "
"case.) Our law is an awful system for defending rights. It is an "
"embarrassment to our tradition. And the consequence of our law as it is, is "
"that those with the power can use the law to quash any rights they oppose."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:10568
msgid "alcohol prohibition"
msgstr ""

#.  f17.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:10580
msgid ""
"Jeffrey A. Miron and Jeffrey Zwiebel, <quote>Alcohol Consumption During "
"Prohibition,</quote> <citetitle>American Economic Review</citetitle> 81, no."
" 2 (1991): 242."
msgstr ""

#.  f18.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:10588
msgid ""
"National Drug Control Policy: Hearing Before the House Government Reform "
"Committee, 108th Cong., 1st sess. (5 March 2003) (statement of John P. "
"Walters, director of National Drug Control Policy)."
msgstr ""

#.  f19.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:10598
msgid ""
"See James Andreoni, Brian Erard, and Jonathon Feinstein, <quote>Tax "
"Compliance,</quote> <citetitle>Journal of Economic Literature</citetitle> 36"
" (1998): 818 (survey of compliance literature)."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10570
msgid ""
"Wars of prohibition are nothing new in America. This one is just something "
"more extreme than anything we've seen before. We experimented with alcohol "
"prohibition, at a time when the per capita consumption of alcohol was 1.5 "
"gallons per capita per year. The war against drinking initially reduced that"
" consumption to just 30 percent of its preprohibition levels, but by the end"
" of prohibition, consumption was up to 70 percent of the preprohibition "
"level. Americans were drinking just about as much, but now, a vast number "
"were criminals.<placeholder type=\"footnote\" id=\"0\"/> We have launched a "
"war on drugs aimed at reducing the consumption of regulated narcotics that 7"
" percent (or 16 million) Americans now use.<placeholder type=\"footnote\" "
"id=\"1\"/> That is a drop from the high (so to speak) in 1979 of 14 percent "
"of the population. We regulate automobiles to the point where the vast "
"majority of Americans violate the law every day. We run such a complex tax "
"system that a majority of cash businesses regularly cheat.<placeholder "
"type=\"footnote\" id=\"2\"/> We pride ourselves on our <quote>free "
"society,</quote> but an endless array of ordinary behavior is regulated "
"within our society. And as a result, a huge proportion of Americans "
"regularly violate at least some law."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:10606
msgid "law schools"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10608
msgid ""
"This state of affairs is not without consequence. It is a particularly "
"salient issue for teachers like me, whose job it is to teach law students "
"about the importance of <quote>ethics.</quote> As my colleague Charlie "
"Nesson told a class at Stanford, each year law schools admit thousands of "
"students who have illegally downloaded music, illegally consumed alcohol and"
" sometimes drugs, illegally worked without paying taxes, illegally driven "
"cars. These are kids for whom behaving illegally is increasingly the norm. "
"And then we, as law professors, are supposed to teach them how to behave "
"ethically&mdash;how to say no to bribes, or keep client funds separate, or "
"honor a demand to disclose a document that will mean that your case is over."
" Generations of Americans&mdash;more significantly in some parts of America "
"than in others, but still, everywhere in America today&mdash;can't live "
"their lives both normally and legally, since <quote>normally</quote> entails"
" a certain degree of illegality."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10625
msgid ""
"The response to this general illegality is either to enforce the law more "
"severely or to change the law. We, as a society, have to learn how to make "
"that choice more rationally. Whether a law makes sense depends, in part, at "
"least, upon whether the costs of the law, both intended and collateral, "
"outweigh the benefits. If the costs, intended and collateral, do outweigh "
"the benefits, then the law ought to be changed.  Alternatively, if the costs"
" of the existing system are much greater than the costs of an alternative, "
"then we have a good reason to consider the alternative."
msgstr ""

#.  PAGE BREAK 211
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10638
msgid ""
"My point is not the idiotic one: Just because people violate a law, we "
"should therefore repeal it. Obviously, we could reduce murder statistics "
"dramatically by legalizing murder on Wednesdays and Fridays. But that "
"wouldn't make any sense, since murder is wrong every day of the week. A "
"society is right to ban murder always and everywhere."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10645
msgid ""
"My point is instead one that democracies understood for generations, but "
"that we recently have learned to forget. The rule of law depends upon people"
" obeying the law. The more often, and more repeatedly, we as citizens "
"experience violating the law, the less we respect the law. Obviously, in "
"most cases, the important issue is the law, not respect for the law. I don't"
" care whether the rapist respects the law or not; I want to catch and "
"incarcerate the rapist. But I do care whether my students respect the law. "
"And I do care if the rules of law sow increasing disrespect because of the "
"extreme of regulation they impose.  Twenty million Americans have come of "
"age since the Internet introduced this different idea of "
"<quote>sharing.</quote> We need to be able to call these twenty million "
"Americans <quote>citizens,</quote> not <quote>felons.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10659
msgid ""
"When at least forty-three million citizens download content from the "
"Internet, and when they use tools to combine that content in ways "
"unauthorized by copyright holders, the first question we should be asking is"
" not how best to involve the FBI. The first question should be whether this "
"particular prohibition is really necessary in order to achieve the proper "
"ends that copyright law serves. Is there another way to assure that artists "
"get paid without transforming forty-three million Americans into felons? "
"Does it make sense if there are other ways to assure that artists get paid "
"without transforming America into a nation of felons?"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10671
msgid "This abstract point can be made more clear with a particular example."
msgstr ""

#.  PAGE BREAK 212
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10674
msgid ""
"We all own CDs. Many of us still own phonograph records. These pieces of "
"plastic encode music that in a certain sense we have bought.  The law "
"protects our right to buy and sell that plastic: It is not a copyright "
"infringement for me to sell all my classical records at a used record store "
"and buy jazz records to replace them. That <quote>use</quote> of the "
"recordings is free."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10685
msgid ""
"But as the MP3 craze has demonstrated, there is another use of phonograph "
"records that is effectively free. Because these recordings were made without"
" copy-protection technologies, I am <quote>free</quote> to copy, or "
"<quote>rip,</quote> music from my records onto a computer hard disk. Indeed,"
" Apple Corporation went so far as to suggest that <quote>freedom</quote> was"
" a right: In a series of commercials, Apple endorsed the <quote>Rip, Mix, "
"Burn</quote> capacities of digital technologies."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:10693
msgid "Andromeda"
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><secondary>
#: freeculture.xml:10694
msgid "mix technology and"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10696
msgid ""
"This <quote>use</quote> of my records is certainly valuable. I have begun a "
"large process at home of ripping all of my and my wife's CDs, and storing "
"them in one archive. Then, using Apple's iTunes, or a wonderful program "
"called Andromeda, we can build different play lists of our music: Bach, "
"Baroque, Love Songs, Love Songs of Significant Others&mdash;the potential is"
" endless. And by reducing the costs of mixing play lists, these technologies"
" help build a creativity with play lists that is itself independently "
"valuable. Compilations of songs are creative and meaningful in their own "
"right."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10707
msgid ""
"This use is enabled by unprotected media&mdash;either CDs or records.  But "
"unprotected media also enable file sharing. File sharing threatens (or so "
"the content industry believes) the ability of creators to earn a fair return"
" from their creativity. And thus, many are beginning to experiment with "
"technologies to eliminate unprotected media. These technologies, for "
"example, would enable CDs that could not be ripped. Or they might enable spy"
" programs to identify ripped content on people's machines."
msgstr ""

#.  PAGE BREAK 213
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10717
msgid ""
"If these technologies took off, then the building of large archives of your "
"own music would become quite difficult. You might hang in hacker circles, "
"and get technology to disable the technologies that protect the content. "
"Trading in those technologies is illegal, but maybe that doesn't bother you "
"much. In any case, for the vast majority of people, these protection "
"technologies would effectively destroy the archiving use of CDs. The "
"technology, in other words, would force us all back to the world where we "
"either listened to music by manipulating pieces of plastic or were part of a"
" massively complex <quote>digital rights management</quote> system."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10732
msgid ""
"If the only way to assure that artists get paid were the elimination of the "
"ability to freely move content, then these technologies to interfere with "
"the freedom to move content would be justifiable. But what if there were "
"another way to assure that artists are paid, without locking down any "
"content? What if, in other words, a different system could assure "
"compensation to artists while also preserving the freedom to move content "
"easily?"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10741
msgid ""
"My point just now is not to prove that there is such a system. I offer a "
"version of such a system in the last chapter of this book. For now, the only"
" point is the relatively uncontroversial one: If a different system achieved"
" the same legitimate objectives that the existing copyright system achieved,"
" but left consumers and creators much more free, then we'd have a very good "
"reason to pursue this alternative&mdash;namely, freedom.  The choice, in "
"other words, would not be between property and piracy; the choice would be "
"between different property systems and the freedoms each allowed."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10752
msgid ""
"I believe there is a way to assure that artists are paid without turning "
"forty-three million Americans into felons. But the salient feature of this "
"alternative is that it would lead to a very different market for producing "
"and distributing creativity. The dominant few, who today control the vast "
"majority of the distribution of content in the world, would no longer "
"exercise this extreme of control. Rather, they would go the way of the "
"horse-drawn buggy."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10761
msgid ""
"Except that this generation's buggy manufacturers have already saddled "
"Congress, and are riding the law to protect themselves against this new form"
" of competition. For them the choice is between fortythree million Americans"
" as criminals and their own survival."
msgstr ""

#.  PAGE BREAK 214
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10767
msgid ""
"It is understandable why they choose as they do. It is not understandable "
"why we as a democracy continue to choose as we do. Jack Valenti is charming;"
" but not so charming as to justify giving up a tradition as deep and "
"important as our tradition of free culture."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10778
msgid ""
"<emphasis role='strong'>There's one more</emphasis> aspect to this "
"corruption that is particularly important to civil liberties, and follows "
"directly from any war of prohibition.  As Electronic Frontier Foundation "
"attorney Fred von Lohmann describes, this is the <quote>collateral "
"damage</quote> that <quote>arises whenever you turn a very large percentage "
"of the population into criminals.</quote> This is the collateral damage to "
"civil liberties generally."
msgstr ""

#. type: Content of: <book><part><chapter><section><indexterm><primary>
#: freeculture.xml:10786 freeculture.xml:10886
msgid "von Lohmann, Fred"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10788
msgid ""
"<quote>If you can treat someone as a putative lawbreaker,</quote> von "
"Lohmann explains,"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:10793
msgid ""
"then all of a sudden a lot of basic civil liberty protections evaporate to "
"one degree or another. &hellip; If you're a copyright infringer, how can you"
" hope to have any privacy rights? If you're a copyright infringer, how can "
"you hope to be secure against seizures of your computer? How can you hope to"
" continue to receive Internet access? &hellip; Our sensibilities change as "
"soon as we think, <quote>Oh, well, but that person's a criminal, a "
"lawbreaker.</quote> Well, what this campaign against file sharing has done "
"is turn a remarkable percentage of the American Internet-using population "
"into <quote>lawbreakers.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10805
msgid ""
"And the consequence of this transformation of the American public into "
"criminals is that it becomes trivial, as a matter of due process, to "
"effectively erase much of the privacy most would presume."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10810
msgid ""
"Users of the Internet began to see this generally in 2003 as the RIAA "
"launched its campaign to force Internet service providers to turn over the "
"names of customers who the RIAA believed were violating copyright law. "
"Verizon fought that demand and lost. With a simple request to a judge, and "
"without any notice to the customer at all, the identity of an Internet user "
"is revealed."
msgstr ""

#.  f20.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:10828
msgid ""
"See Frank Ahrens, <quote>RIAA's Lawsuits Meet Surprised Targets; Single "
"Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,</quote> "
"<citetitle>Washington Post</citetitle>, 10 September 2003, E1; Chris Cobbs, "
"<quote>Worried Parents Pull Plug on File `Stealing'; With the Music Industry"
" Cracking Down on File Swapping, Parents are Yanking Software from Home PCs "
"to Avoid Being Sued,</quote> <citetitle>Orlando Sentinel "
"Tribune</citetitle>, 30 August 2003, C1; Jefferson Graham, <quote>Recording "
"Industry Sues Parents,</quote> <citetitle>USA Today</citetitle>, 15 "
"September 2003, 4D; John Schwartz, <quote>She Says She's No Music Pirate. No"
" Snoop Fan, Either,</quote> <citetitle>New York Times</citetitle>, 25 "
"September 2003, C1; Margo Varadi, <quote>Is Brianna a Criminal?</quote> "
"<citetitle>Toronto Star</citetitle>, 18 September 2003, P7."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10819
msgid ""
"The RIAA then expanded this campaign, by announcing a general strategy to "
"sue individual users of the Internet who are alleged to have downloaded "
"copyrighted music from file-sharing systems. But as we've seen, the "
"potential damages from these suits are astronomical: If a family's computer "
"is used to download a single CD's worth of music, the family could be liable"
" for $2 million in damages. That didn't stop the RIAA from suing a number of"
" these families, just as they had sued Jesse Jordan.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  f21.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:10846
msgid ""
"See <quote>Revealed: How RIAA Tracks Downloaders: Music Industry Discloses "
"Some Methods Used,</quote> CNN.com, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #47</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10842
msgid ""
"Even this understates the espionage that is being waged by the RIAA. A "
"report from CNN late last summer described a strategy the RIAA had adopted "
"to track Napster users.<placeholder type=\"footnote\" id=\"0\"/> Using a "
"sophisticated hashing algorithm, the RIAA took what is in effect a "
"fingerprint of every song in the Napster catalog. Any copy of one of those "
"MP3s will have the same <quote>fingerprint.</quote>"
msgstr ""

#.  f22.
#. type: Content of: <book><part><chapter><section><para><footnote><para>
#: freeculture.xml:10867
msgid ""
"See Jeff Adler, <quote>Cambridge: On Campus, Pirates Are Not "
"Penitent,</quote> <citetitle>Boston Globe</citetitle>, 18 May 2003, City "
"Weekly, 1; Frank Ahrens, <quote>Four Students Sued over Music Sites; "
"Industry Group Targets File Sharing at Colleges,</quote> "
"<citetitle>Washington Post</citetitle>, 4 April 2003, E1; Elizabeth "
"Armstrong, <quote>Students `Rip, Mix, Burn' at Their Own Risk,</quote> "
"<citetitle>Christian Science Monitor</citetitle>, 2 September 2003, 20; "
"Robert Becker and Angela Rozas, <quote>Music Pirate Hunt Turns to Loyola; "
"Two Students Names Are Handed Over; Lawsuit Possible,</quote> "
"<citetitle>Chicago Tribune</citetitle>, 16 July 2003, 1C; Beth Cox, "
"<quote>RIAA Trains Antipiracy Guns on Universities,</quote> "
"<citetitle>Internet News</citetitle>, 30 January 2003, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #48</ulink>; Benny Evangelista, "
"<quote>Download Warning 101: Freshman Orientation This Fall to Include "
"Record Industry Warnings Against File Sharing,</quote> <citetitle>San "
"Francisco Chronicle</citetitle>, 11 August 2003, E11; <quote>Raid, Letters "
"Are Weapons at Universities,</quote> <citetitle>USA Today</citetitle>, 26 "
"September 2000, 3D."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10855
msgid ""
"So imagine the following not-implausible scenario: Imagine a friend gives a "
"CD to your daughter&mdash;a collection of songs just like the cassettes you "
"used to make as a kid. You don't know, and neither does your daughter, where"
" these songs came from. But she copies these songs onto her computer. She "
"then takes her computer to college and connects it to a college network, and"
" if the college network is <quote>cooperating</quote> with the RIAA's "
"espionage, and she hasn't properly protected her content from the network "
"(do you know how to do that yourself ?), then the RIAA will be able to "
"identify your daughter as a <quote>criminal.</quote> And under the rules "
"that universities are beginning to deploy,<placeholder type=\"footnote\" "
"id=\"0\"/> your daughter can lose the right to use the university's computer"
" network.  She can, in some cases, be expelled."
msgstr ""

#.  PAGE BREAK 216
#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10888
msgid ""
"Now, of course, she'll have the right to defend herself. You can hire a "
"lawyer for her (at $300 per hour, if you're lucky), and she can plead that "
"she didn't know anything about the source of the songs or that they came "
"from Napster. And it may well be that the university believes her. But the "
"university might not believe her. It might treat this "
"<quote>contraband</quote> as presumptive of guilt. And as any number of "
"college students have already learned, our presumptions about innocence "
"disappear in the middle of wars of prohibition. This war is no different.  "
"Says von Lohmann,"
msgstr ""

#. type: Content of: <book><part><chapter><section><blockquote><para>
#: freeculture.xml:10903
msgid ""
"So when we're talking about numbers like forty to sixty million Americans "
"that are essentially copyright infringers, you create a situation where the "
"civil liberties of those people are very much in peril in a general matter. "
"[I don't] think [there is any] analog where you could randomly choose any "
"person off the street and be confident that they were committing an unlawful"
" act that could put them on the hook for potential felony liability or "
"hundreds of millions of dollars of civil liability. Certainly we all speed, "
"but speeding isn't the kind of an act for which we routinely forfeit civil "
"liberties. Some people use drugs, and I think that's the closest analog, "
"[but] many have noted that the war against drugs has eroded all of our civil"
" liberties because it's treated so many Americans as criminals. Well, I "
"think it's fair to say that file sharing is an order of magnitude larger "
"number of Americans than drug use. &hellip; If forty to sixty million "
"Americans have become lawbreakers, then we're really on a slippery slope to "
"lose a lot of civil liberties for all forty to sixty million of them."
msgstr ""

#. type: Content of: <book><part><chapter><section><para>
#: freeculture.xml:10923
msgid ""
"When forty to sixty million Americans are considered "
"<quote>criminals</quote> under the law, and when the law could achieve the "
"same objective&mdash; securing rights to authors&mdash;without these "
"millions being considered <quote>criminals,</quote> who is the villain? "
"Americans or the law? Which is American, a constant war on our own people or"
" a concerted effort through our democracy to change our law?"
msgstr ""

#. type: Content of: <book><part><title>
#: freeculture.xml:10936
msgid "BALANCES"
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:10941
msgid ""
"<emphasis role='strong'>So here's</emphasis> the picture: You're standing at"
" the side of the road. Your car is on fire. You are angry and upset because "
"in part you helped start the fire. Now you don't know how to put it out. "
"Next to you is a bucket, filled with gasoline. Obviously, gasoline won't put"
" the fire out."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:10948
msgid ""
"As you ponder the mess, someone else comes along. In a panic, she grabs the "
"bucket. Before you have a chance to tell her to stop&mdash;or before she "
"understands just why she should stop&mdash;the bucket is in the air.  The "
"gasoline is about to hit the blazing car. And the fire that gasoline will "
"ignite is about to ignite everything around."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:10956
msgid ""
"<emphasis role='strong'>A war</emphasis> about copyright rages all "
"around&mdash;and we're all focusing on the wrong thing. No doubt, current "
"technologies threaten existing businesses.  No doubt they may threaten "
"artists. But technologies change.  The industry and technologists have "
"plenty of ways to use technology to protect themselves against the current "
"threats of the Internet. This is a fire that if let alone would burn itself "
"out."
msgstr ""

#.  PAGE BREAK 219
#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:10966
msgid ""
"Yet policy makers are not willing to leave this fire to itself. Primed with "
"plenty of lobbyists' money, they are keen to intervene to eliminate the "
"problem they perceive. But the problem they perceive is not the real threat "
"this culture faces. For while we watch this small fire in the corner, there "
"is a massive change in the way culture is made that is happening all around."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:10974
msgid ""
"Somehow we have to find a way to turn attention to this more important and "
"fundamental issue. Somehow we have to find a way to avoid pouring gasoline "
"onto this fire."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:10979
msgid ""
"We have not found that way yet. Instead, we seem trapped in a simpler, "
"binary view. However much many people push to frame this debate more "
"broadly, it is the simple, binary view that remains. We rubberneck to look "
"at the fire when we should be keeping our eyes on the road."
msgstr ""

#. type: Content of: <book><part><partintro><para>
#: freeculture.xml:10985
msgid ""
"This challenge has been my life these last few years. It has also been my "
"failure. In the two chapters that follow, I describe one small brace of "
"efforts, so far failed, to find a way to refocus this debate. We must "
"understand these failures if we're to understand what success will require."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:10995
msgid "CHAPTER THIRTEEN: Eldred"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:10996
msgid "Eldred, Eric"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:10997
msgid "Hawthorne, Nathaniel"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:10999
msgid ""
"<emphasis role='strong'>In 1995</emphasis>, a father was frustrated that his"
" daughters didn't seem to like Hawthorne. No doubt there was more than one "
"such father, but at least one did something about it. Eric Eldred, a retired"
" computer programmer living in New Hampshire, decided to put Hawthorne on "
"the Web. An electronic version, Eldred thought, with links to pictures and "
"explanatory text, would make this nineteenth-century author's work come "
"alive."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:11007
msgid "of public-domain literature"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:11008
msgid "library of works derived from"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11010
msgid ""
"It didn't work&mdash;at least for his daughters. They didn't find Hawthorne "
"any more interesting than before. But Eldred's experiment gave birth to a "
"hobby, and his hobby begat a cause: Eldred would build a library of public "
"domain works by scanning these works and making them available for free."
msgstr ""

#.  PAGE BREAK 221
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11019
msgid ""
"Eldred's library was not simply a copy of certain public domain works, "
"though even a copy would have been of great value to people across the world"
" who can't get access to printed versions of these works. Instead, Eldred "
"was producing derivative works from these public domain works. Just as "
"Disney turned Grimm into stories more accessible to the twentieth century, "
"Eldred transformed Hawthorne, and many others, into a form more "
"accessible&mdash;technically accessible&mdash;today."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11029
msgid "Scarlet Letter, The (Hawthorne)"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11031
msgid ""
"Eldred's freedom to do this with Hawthorne's work grew from the same source "
"as Disney's. Hawthorne's <citetitle>Scarlet Letter</citetitle> had passed "
"into the public domain in 1907. It was free for anyone to take without the "
"permission of the Hawthorne estate or anyone else. Some, such as Dover Press"
" and Penguin Classics, take works from the public domain and produce printed"
" editions, which they sell in bookstores across the country. Others, such as"
" Disney, take these stories and turn them into animated cartoons, sometimes "
"successfully (<citetitle>Cinderella</citetitle>), sometimes not "
"(<citetitle>The Hunchback of Notre Dame</citetitle>, <citetitle>Treasure "
"Planet</citetitle>). These are all commercial publications of public domain "
"works."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11056 freeculture.xml:12103
msgid "pornography"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:11056
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> There's a parallel here with "
"pornography that is a bit hard to describe, but it's a strong one. One "
"phenomenon that the Internet created was a world of noncommercial "
"pornographers&mdash;people who were distributing porn but were not making "
"money directly or indirectly from that distribution.  Such a class didn't "
"exist before the Internet came into being because the costs of distributing "
"porn were so high. Yet this new class of distributors got special attention "
"in the Supreme Court, when the Court struck down the Communications Decency "
"Act of 1996. It was partly because of the burden on noncommercial speakers "
"that the statute was found to exceed Congress's power. The same point could "
"have been made about noncommercial publishers after the advent of the "
"Internet. The Eric Eldreds of the world before the Internet were extremely "
"few. Yet one would think it at least as important to protect the Eldreds of "
"the world as to protect noncommercial pornographers."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11045
msgid ""
"The Internet created the possibility of noncommercial publications of public"
" domain works. Eldred's is just one example. There are literally thousands "
"of others. Hundreds of thousands from across the world have discovered this "
"platform of expression and now use it to share works that are, by law, free "
"for the taking. This has produced what we might call the "
"<quote>noncommercial publishing industry,</quote> which before the Internet "
"was limited to people with large egos or with political or social causes. "
"But with the Internet, it includes a wide range of individuals and groups "
"dedicated to spreading culture generally.<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11076
msgid "Frost, Robert"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11077
msgid "New Hampshire (Frost)"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11081
msgid ""
"As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection"
" of poems <citetitle>New Hampshire</citetitle> was slated to pass into the "
"public domain. Eldred wanted to post that collection in his free public "
"library.  But Congress got in the way. As I described in chapter <xref "
"xrefstyle=\"select: labelnumber\" linkend=\"property-i\"/>, in 1998, for the"
" eleventh time in forty years, Congress extended the terms of existing "
"copyrights&mdash;this time by twenty years. Eldred would not be free to add "
"any works more recent than 1923 to his collection until 2019.  Indeed, no "
"copyrighted work would pass into the public domain until that year (and not "
"even then, if Congress extends the term again). By contrast, in the same "
"period, more than 1 million patents will pass into the public domain."
msgstr ""

#. type: Content of:
#. <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:11096 freeculture.xml:11108
msgid "Bono, Mary"
msgstr ""

#. type: Content of:
#. <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:11097 freeculture.xml:11109
msgid "Bono, Sonny"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:11108
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" "
"id=\"1\"/> The full text is: <quote>Sonny [Bono] wanted the term of "
"copyright protection to last forever. I am informed by staff that such a "
"change would violate the Constitution. I invite all of you to work with me "
"to strengthen our copyright laws in all of the ways available to us. As you "
"know, there is also Jack Valenti's proposal for a term to last forever less "
"one day. Perhaps the Committee may look at that next Congress,</quote> 144 "
"Cong. Rec. H9946, 9951-2 (October 7, 1998)."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11103
msgid ""
"This was the Sonny Bono Copyright Term Extension Act (CTEA), enacted in "
"memory of the congressman and former musician Sonny Bono, who, his widow, "
"Mary Bono, says, believed that <quote>copyrights should be "
"forever.</quote><placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:11120
msgid "felony punishment for infringement of"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11121
msgid "NET (No Electronic Theft) Act (1998)"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11122
msgid "No Electronic Theft (NET) Act (1998)"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:11123
msgid "felony punishments for"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11125
msgid ""
"Eldred decided to fight this law. He first resolved to fight it through "
"civil disobedience. In a series of interviews, Eldred announced that he "
"would publish as planned, CTEA notwithstanding. But because of a second law "
"passed in 1998, the NET (No Electronic Theft) Act, his act of publishing "
"would make Eldred a felon&mdash;whether or not anyone complained. This was a"
" dangerous strategy for a disabled programmer to undertake."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:11134 freeculture.xml:12071
msgid "constitutional powers of"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:11137 freeculture.xml:11183
msgid "Eldred case involvement of"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11139
msgid ""
"It was here that I became involved in Eldred's battle. I was a "
"constitutional scholar whose first passion was constitutional "
"interpretation.  And though constitutional law courses never focus upon the "
"Progress Clause of the Constitution, it had always struck me as importantly "
"different. As you know, the Constitution says,"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:11150
msgid ""
"Congress has the power to promote the Progress of Science &hellip; by "
"securing for limited Times to Authors &hellip; exclusive Right to their "
"&hellip; Writings. &hellip;"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11157
msgid ""
"As I've described, this clause is unique within the power-granting clause of"
" Article I, section 8 of our Constitution. Every other clause granting power"
" to Congress simply says Congress has the power to do something&mdash;for "
"example, to regulate <quote>commerce among the several states</quote> or "
"<quote>declare War.</quote> But here, the <quote>something</quote> is "
"something quite specific&mdash;to <quote>promote &hellip; "
"Progress</quote>&mdash;through means that are also specific&mdash; by "
"<quote>securing</quote> <quote>exclusive Rights</quote> (i.e., copyrights) "
"<quote>for limited Times.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11169 freeculture.xml:12665
msgid "Jaszi, Peter"
msgstr ""

#.  PAGE BREAK 223
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11171
msgid ""
"In the past forty years, Congress has gotten into the practice of extending "
"existing terms of copyright protection. What puzzled me about this was, if "
"Congress has the power to extend existing terms, then the Constitution's "
"requirement that terms be <quote>limited</quote> will have no practical "
"effect. If every time a copyright is about to expire, Congress has the power"
" to extend its term, then Congress can achieve what the Constitution plainly"
" forbids&mdash;perpetual terms <quote>on the installment plan,</quote> as "
"Professor Peter Jaszi so nicely put it."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11185
msgid ""
"As an academic, my first response was to hit the books. I remember sitting "
"late at the office, scouring on-line databases for any serious consideration"
" of the question. No one had ever challenged Congress's practice of "
"extending existing terms. That failure may in part be why Congress seemed so"
" untroubled in its habit. That, and the fact that the practice had become so"
" lucrative for Congress. Congress knows that copyright owners will be "
"willing to pay a great deal of money to see their copyright terms extended. "
"And so Congress is quite happy to keep this gravy train going."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11196
msgid ""
"For this is the core of the corruption in our present system of government. "
"<quote>Corruption</quote> not in the sense that representatives are bribed."
"  Rather, <quote>corruption</quote> in the sense that the system induces the"
" beneficiaries of Congress's acts to raise and give money to Congress to "
"induce it to act. There's only so much time; there's only so much Congress "
"can do. Why not limit its actions to those things it must do&mdash;and those"
" things that pay? Extending copyright terms pays."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11205
msgid ""
"If that's not obvious to you, consider the following: Say you're one of the "
"very few lucky copyright owners whose copyright continues to make money one "
"hundred years after it was created. The Estate of Robert Frost is a good "
"example. Frost died in 1963. His poetry continues to be extraordinarily "
"valuable. Thus the Robert Frost estate benefits greatly from any extension "
"of copyright, since no publisher would pay the estate any money if the poems"
" Frost wrote could be published by anyone for free."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11215
msgid ""
"So imagine the Robert Frost estate is earning $100,000 a year from three of "
"Frost's poems. And imagine the copyright for those poems is about to expire."
" You sit on the board of the Robert Frost estate.  Your financial adviser "
"comes to your board meeting with a very grim report:"
msgstr ""

#.  PAGE BREAK 224
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11222
msgid ""
"<quote>Next year,</quote> the adviser announces, <quote>our copyrights in "
"works A, B, and C will expire. That means that after next year, we will no "
"longer be receiving the annual royalty check of $100,000 from the publishers"
" of those works.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11230
msgid ""
"<quote>There's a proposal in Congress, however,</quote> she continues, "
"<quote>that could change this. A few congressmen are floating a bill to "
"extend the terms of copyright by twenty years. That bill would be "
"extraordinarily valuable to us. So we should hope this bill passes.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11236
msgid ""
"<quote>Hope?</quote> a fellow board member says. <quote>Can't we be doing "
"something about it?</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11240
msgid ""
"<quote>Well, obviously, yes,</quote> the adviser responds. <quote>We could "
"contribute to the campaigns of a number of representatives to try to assure "
"that they support the bill.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11245
msgid ""
"You hate politics. You hate contributing to campaigns. So you want to know "
"whether this disgusting practice is worth it. <quote>How much would we get "
"if this extension were passed?</quote> you ask the adviser. <quote>How much "
"is it worth?</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11251
msgid ""
"<quote>Well,</quote> the adviser says, <quote>if you're confident that you "
"will continue to get at least $100,000 a year from these copyrights, and you"
" use the `discount rate' that we use to evaluate estate investments (6 "
"percent), then this law would be worth $1,146,000 to the estate.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11257
msgid ""
"You're a bit shocked by the number, but you quickly come to the correct "
"conclusion:"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11261
msgid ""
"<quote>So you're saying it would be worth it for us to pay more than "
"$1,000,000 in campaign contributions if we were confident those "
"contributions would assure that the bill was passed?</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11267
msgid ""
"<quote>Absolutely,</quote> the adviser responds. <quote>It is worth it to "
"you to contribute up to the `present value' of the income you expect from "
"these copyrights. Which for us means over $1,000,000.</quote>"
msgstr ""

#.  PAGE BREAK 225
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11273
msgid ""
"You quickly get the point&mdash;you as the member of the board and, I trust,"
" you the reader. Each time copyrights are about to expire, every beneficiary"
" in the position of the Robert Frost estate faces the same choice: If they "
"can contribute to get a law passed to extend copyrights, they will benefit "
"greatly from that extension. And so each time copyrights are about to "
"expire, there is a massive amount of lobbying to get the copyright term "
"extended."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11284
msgid ""
"Thus a congressional perpetual motion machine: So long as legislation can be"
" bought (albeit indirectly), there will be all the incentive in the world to"
" buy further extensions of copyright."
msgstr ""

#.  f3.
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:11296
msgid ""
"Associated Press, <quote>Disney Lobbying for Copyright Extension No Mickey "
"Mouse Effort; Congress OKs Bill Granting Creators 20 More Years,</quote> "
"<citetitle>Chicago Tribune</citetitle>, 17 October 1998, 22."
msgstr ""

#.  f4.
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:11303
msgid ""
"See Nick Brown, <quote>Fair Use No More?: Copyright in the Information "
"Age,</quote> available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#49</ulink>."
msgstr ""

#.  f5.
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:11311
msgid ""
"Alan K. Ota, <quote>Disney in Washington: The Mouse That Roars,</quote> "
"<citetitle>Congressional Quarterly This Week</citetitle>, 8 August 1990, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #50</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11289
msgid ""
"In the lobbying that led to the passage of the Sonny Bono Copyright Term "
"Extension Act, this <quote>theory</quote> about incentives was proved real. "
"Ten of the thirteen original sponsors of the act in the House received the "
"maximum contribution from Disney's political action committee; in the "
"Senate, eight of the twelve sponsors received contributions.<placeholder "
"type=\"footnote\" id=\"0\"/> The RIAA and the MPAA are estimated to have "
"spent over $1.5 million lobbying in the 1998 election cycle. They paid out "
"more than $200,000 in campaign contributions.<placeholder type=\"footnote\" "
"id=\"1\"/> Disney is estimated to have contributed more than $800,000 to "
"reelection campaigns in the cycle.<placeholder type=\"footnote\" id=\"2\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11318
msgid ""
"<emphasis role='strong'>Constitutional law</emphasis> is not oblivious to "
"the obvious. Or at least, it need not be. So when I was considering Eldred's"
" complaint, this reality about the never-ending incentives to increase the "
"copyright term was central to my thinking. In my view, a pragmatic court "
"committed to interpreting and applying the Constitution of our framers would"
" see that if Congress has the power to extend existing terms, then there "
"would be no effective constitutional requirement that terms be "
"<quote>limited.</quote> If they could extend it once, they would extend it "
"again and again and again."
msgstr ""

#.  PAGE BREAK 226
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11333
msgid ""
"It was also my judgment that <emphasis>this</emphasis> Supreme Court would "
"not allow Congress to extend existing terms. As anyone close to the Supreme "
"Court's work knows, this Court has increasingly restricted the power of "
"Congress when it has viewed Congress's actions as exceeding the power "
"granted to it by the Constitution. Among constitutional scholars, the most "
"famous example of this trend was the Supreme Court's decision in 1995 to "
"strike down a law that banned the possession of guns near schools."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11346
msgid ""
"Since 1937, the Supreme Court had interpreted Congress's granted powers very"
" broadly; so, while the Constitution grants Congress the power to regulate "
"only <quote>commerce among the several states</quote> (aka <quote>interstate"
" commerce</quote>), the Supreme Court had interpreted that power to include "
"the power to regulate any activity that merely affected interstate commerce."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11356
msgid ""
"As the economy grew, this standard increasingly meant that there was no "
"limit to Congress's power to regulate, since just about every activity, when"
" considered on a national scale, affects interstate commerce.  A "
"Constitution designed to limit Congress's power was instead interpreted to "
"impose no limit."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11362 freeculture.xml:12152
msgid "Rehnquist, William H."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11364
msgid ""
"The Supreme Court, under Chief Justice Rehnquist's command, changed that in "
"<citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>. The "
"government had argued that possessing guns near schools affected interstate "
"commerce. Guns near schools increase crime, crime lowers property values, "
"and so on. In the oral argument, the Chief Justice asked the government "
"whether there was any activity that would not affect interstate commerce "
"under the reasoning the government advanced. The government said there was "
"not; if Congress says an activity affects interstate commerce, then that "
"activity affects interstate commerce. The Supreme Court, the government "
"said, was not in the position to second-guess Congress."
msgstr ""

#.  f6.
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:11379
msgid ""
"<citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>, 514 "
"U.S. 549, 564 (1995)."
msgstr ""

#.  f7.
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:11386
msgid ""
"<citetitle>United States</citetitle> v. <citetitle>Morrison</citetitle>, 529"
" U.S. 598 (2000)."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11377
msgid ""
"<quote>We pause to consider the implications of the government's "
"arguments,</quote> the Chief Justice wrote.<placeholder type=\"footnote\" "
"id=\"0\"/> If anything Congress says is interstate commerce must therefore "
"be considered interstate commerce, then there would be no limit to "
"Congress's power. The decision in <citetitle>Lopez</citetitle> was "
"reaffirmed five years later in <citetitle>United States</citetitle> v. "
"<citetitle>Morrison</citetitle>.<placeholder type=\"footnote\" id=\"1\"/>"
msgstr ""

#.  f8.
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:11393
msgid ""
"If it is a principle about enumerated powers, then the principle carries "
"from one enumerated power to another. The animating point in the context of "
"the Commerce Clause was that the interpretation offered by the government "
"would allow the government unending power to regulate commerce&mdash;the "
"limitation to interstate commerce notwithstanding. The same point is true in"
" the context of the Copyright Clause. Here, too, the government's "
"interpretation would allow the government unending power to regulate "
"copyrights&mdash;the limitation to <quote>limited times</quote> "
"notwithstanding."
msgstr ""

#.  PAGE BREAK 227
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11390
msgid ""
"If a principle were at work here, then it should apply to the Progress "
"Clause as much as the Commerce Clause.<placeholder type=\"footnote\" "
"id=\"0\"/> And if it is applied to the Progress Clause, the principle should"
" yield the conclusion that Congress can't extend an existing term. If "
"Congress could extend an existing term, then there would be no "
"<quote>stopping point</quote> to Congress's power over terms, though the "
"Constitution expressly states that there is such a limit. Thus, the same "
"principle applied to the power to grant copyrights should entail that "
"Congress is not allowed to extend the term of existing copyrights."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11414
msgid ""
"<emphasis>If</emphasis>, that is, the principle announced in "
"<citetitle>Lopez</citetitle> stood for a principle.  Many believed the "
"decision in <citetitle>Lopez</citetitle> stood for politics&mdash;a "
"conservative Supreme Court, which believed in states' rights, using its "
"power over Congress to advance its own personal political preferences. But I"
" rejected that view of the Supreme Court's decision. Indeed, shortly after "
"the decision, I wrote an article demonstrating the <quote>fidelity</quote> "
"in such an interpretation of the Constitution. The idea that the Supreme "
"Court decides cases based upon its politics struck me as extraordinarily "
"boring.  I was not going to devote my life to teaching constitutional law if"
" these nine Justices were going to be petty politicians."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11431
msgid ""
"<emphasis role='strong'>Now let's pause</emphasis> for a moment to make sure"
" we understand what the argument in <citetitle>Eldred</citetitle> was not "
"about. By insisting on the Constitution's limits to copyright, obviously "
"Eldred was not endorsing piracy.  Indeed, in an obvious sense, he was "
"fighting a kind of piracy&mdash;piracy of the public domain. When Robert "
"Frost wrote his work and when Walt Disney created Mickey Mouse, the maximum "
"copyright term was just fifty-six years. Because of interim changes, Frost "
"and Disney had already enjoyed a seventy-five-year monopoly for their work. "
"They had gotten the benefit of the bargain that the Constitution envisions: "
"In exchange for a monopoly protected for fifty-six years, they created new "
"work. But now these entities were using their power&mdash;expressed through "
"the power of lobbyists' money&mdash;to get another twenty-year dollop of "
"monopoly. That twenty-year dollop would be taken from the public domain. "
"Eric Eldred was fighting a piracy that affects us all."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11448
msgid "Nashville Songwriters Association"
msgstr ""

#.  f9.
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:11456
msgid ""
"Brief of the Nashville Songwriters Association, "
"<citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 537 U.S.  "
"186 (2003) (No. 01-618), n.10, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #51</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11450
msgid ""
"Some people view the public domain with contempt. In their brief before the "
"Supreme Court, the Nashville Songwriters Association wrote that the public "
"domain is nothing more than <quote>legal piracy.</quote><placeholder "
"type=\"footnote\" id=\"0\"/> But it is not piracy when the law allows it; "
"and in our constitutional system, our law requires it. Some may not like the"
" Constitution's requirements, but that doesn't make the Constitution a "
"pirate's charter."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11466
msgid ""
"As we've seen, our constitutional system requires limits on copyright as a "
"way to assure that copyright holders do not too heavily influence the "
"development and distribution of our culture. Yet, as Eric Eldred discovered,"
" we have set up a system that assures that copyright terms will be "
"repeatedly extended, and extended, and extended. We have created the perfect"
" storm for the public domain. Copyrights have not expired, and will not "
"expire, so long as Congress is free to be bought to extend them again."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11478
msgid ""
"<emphasis role='strong'>It is valuable</emphasis> copyrights that are "
"responsible for terms being extended.  Mickey Mouse and <quote>Rhapsody in "
"Blue.</quote> These works are too valuable for copyright owners to ignore. "
"But the real harm to our society from copyright extensions is not that "
"Mickey Mouse remains Disney's.  Forget Mickey Mouse. Forget Robert Frost. "
"Forget all the works from the 1920s and 1930s that have continuing "
"commercial value. The real harm of term extension comes not from these "
"famous works. The real harm is to the works that are not famous, not "
"commercially exploited, and no longer available as a result."
msgstr ""

#.  f10.
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:11496
msgid ""
"The figure of 2 percent is an extrapolation from the study by the "
"Congressional Research Service, in light of the estimated renewal ranges. "
"See Brief of Petitioners, <citetitle>Eldred</citetitle> v. "
"<citetitle>Ashcroft</citetitle>, 7, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #52</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11490
msgid ""
"If you look at the work created in the first twenty years (1923 to 1942) "
"affected by the Sonny Bono Copyright Term Extension Act, 2 percent of that "
"work has any continuing commercial value. It was the copyright holders for "
"that 2 percent who pushed the CTEA through.  But the law and its effect were"
" not limited to that 2 percent. The law extended the terms of copyright "
"generally.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 229
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11505
msgid ""
"Think practically about the consequence of this extension&mdash;practically,"
" as a businessperson, and not as a lawyer eager for more legal work. In "
"1930, 10,047 books were published. In 2000, 174 of those books were still in"
" print. Let's say you were Brewster Kahle, and you wanted to make available "
"to the world in your iArchive project the remaining 9,873. What would you "
"have to do?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11518
msgid ""
"Well, first, you'd have to determine which of the 9,873 books were still "
"under copyright. That requires going to a library (these data are not on-"
"line) and paging through tomes of books, cross-checking the titles and "
"authors of the 9,873 books with the copyright registration and renewal "
"records for works published in 1930. That will produce a list of books still"
" under copyright."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11526
msgid ""
"Then for the books still under copyright, you would need to locate the "
"current copyright owners. How would you do that?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11530
msgid ""
"Most people think that there must be a list of these copyright owners "
"somewhere. Practical people think this way. How could there be thousands and"
" thousands of government monopolies without there being at least a list?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11537
msgid ""
"But there is no list. There may be a name from 1930, and then in 1959, of "
"the person who registered the copyright. But just think practically about "
"how impossibly difficult it would be to track down thousands of such "
"records&mdash;especially since the person who registered is not necessarily "
"the current owner. And we're just talking about 1930!"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11546
msgid ""
"<quote>But there isn't a list of who owns property generally,</quote> the "
"apologists for the system respond. <quote>Why should there be a list of "
"copyright owners?</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11551
msgid ""
"Well, actually, if you think about it, there <emphasis>are</emphasis> plenty"
" of lists of who owns what property. Think about deeds on houses, or titles "
"to cars.  And where there isn't a list, the code of real space is pretty "
"good at suggesting who the owner of a bit of property is. (A swing set in "
"your backyard is probably yours.) So formally or informally, we have a "
"pretty good way to know who owns what tangible property."
msgstr ""

#.  PAGE BREAK 230
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11560
msgid ""
"So: You walk down a street and see a house. You can know who owns the house "
"by looking it up in the courthouse registry. If you see a car, there is "
"ordinarily a license plate that will link the owner to the car. If you see a"
" bunch of children's toys sitting on the front lawn of a house, it's fairly "
"easy to determine who owns the toys. And if you happen to see a baseball "
"lying in a gutter on the side of the road, look around for a second for some"
" kids playing ball. If you don't see any kids, then okay: Here's a bit of "
"property whose owner we can't easily determine. It is the exception that "
"proves the rule: that we ordinarily know quite well who owns what property."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11575
msgid ""
"Compare this story to intangible property. You go into a library.  The "
"library owns the books. But who owns the copyrights? As I've already "
"described, there's no list of copyright owners. There are authors' names, of"
" course, but their copyrights could have been assigned, or passed down in an"
" estate like Grandma's old jewelry. To know who owns what, you would have to"
" hire a private detective. The bottom line: The owner cannot easily be "
"located. And in a regime like ours, in which it is a felony to use such "
"property without the property owner's permission, the property isn't going "
"to be used."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11587
msgid ""
"The consequence with respect to old books is that they won't be digitized, "
"and hence will simply rot away on shelves. But the consequence for other "
"creative works is much more dire."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11592
msgid "Agee, Michael"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11593 freeculture.xml:12028
msgid "Hal Roach Studios"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11594
msgid "Laurel and Hardy Films"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11595
msgid "Lucky Dog, The"
msgstr ""

#.  f11.
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:11608
msgid ""
"See David G. Savage, <quote>High Court Scene of Showdown on Copyright "
"Law,</quote> <citetitle>Los Angeles Times</citetitle>, 6 October 2002; David"
" Streitfeld, <quote>Classic Movies, Songs, Books at Stake; Supreme Court "
"Hears Arguments Today on Striking Down Copyright Extension,</quote> "
"<citetitle>Orlando Sentinel Tribune</citetitle>, 9 October 2002."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11597
msgid ""
"Consider the story of Michael Agee, chairman of Hal Roach Studios, which "
"owns the copyrights for the Laurel and Hardy films. Agee is a direct "
"beneficiary of the Bono Act. The Laurel and Hardy films were made between "
"1921 and 1951. Only one of these films, <citetitle>The Lucky "
"Dog</citetitle>, is currently out of copyright. But for the CTEA, films made"
" after 1923 would have begun entering the public domain. Because Agee "
"controls the exclusive rights for these popular films, he makes a great deal"
" of money. According to one estimate, <quote>Roach has sold about 60,000 "
"videocassettes and 50,000 DVDs of the duo's silent "
"films.</quote><placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11615
msgid ""
"Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in this "
"culture: selflessness. He argued in a brief before the Supreme Court that "
"the Sonny Bono Copyright Term Extension Act will, if left standing, destroy "
"a whole generation of American film."
msgstr ""

#.  PAGE BREAK 231
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11621
msgid ""
"His argument is straightforward. A tiny fraction of this work has any "
"continuing commercial value. The rest&mdash;to the extent it survives at "
"all&mdash;sits in vaults gathering dust. It may be that some of this work "
"not now commercially valuable will be deemed to be valuable by the owners of"
" the vaults. For this to occur, however, the commercial benefit from the "
"work must exceed the costs of making the work available for distribution."
msgstr ""

#.  f12.
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:11639
msgid ""
"Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the "
"Petitoners, <citetitle>Eldred</citetitle> v. "
"<citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01- 618), 12. See "
"also Brief of Amicus Curiae filed on behalf of Petitioners by the Internet "
"Archive, <citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #53</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11632
msgid ""
"We can't know the benefits, but we do know a lot about the costs.  For most "
"of the history of film, the costs of restoring film were very high; digital "
"technology has lowered these costs substantially. While it cost more than "
"$10,000 to restore a ninety-minute black-and-white film in 1993, it can now "
"cost as little as $100 to digitize one hour of 8 mm film.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11649
msgid ""
"Restoration technology is not the only cost, nor the most important.  "
"Lawyers, too, are a cost, and increasingly, a very important one. In "
"addition to preserving the film, a distributor needs to secure the rights.  "
"And to secure the rights for a film that is under copyright, you need to "
"locate the copyright owner."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11657
msgid ""
"Or more accurately, <emphasis>owners</emphasis>. As we've seen, there isn't "
"only a single copyright associated with a film; there are many. There isn't "
"a single person whom you can contact about those copyrights; there are as "
"many as can hold the rights, which turns out to be an extremely large "
"number. Thus the costs of clearing the rights to these films is "
"exceptionally high."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11665
msgid ""
"<quote>But can't you just restore the film, distribute it, and then pay the "
"copyright owner when she shows up?</quote> Sure, if you want to commit a "
"felony. And even if you're not worried about committing a felony, when she "
"does show up, she'll have the right to sue you for all the profits you have "
"made. So, if you're successful, you can be fairly confident you'll be "
"getting a call from someone's lawyer. And if you're not successful, you "
"won't make enough to cover the costs of your own lawyer. Either way, you "
"have to talk to a lawyer. And as is too often the case, saying you have to "
"talk to a lawyer is the same as saying you won't make any money."
msgstr ""

#.  PAGE BREAK 232
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11676
msgid ""
"For some films, the benefit of releasing the film may well exceed these "
"costs. But for the vast majority of them, there is no way the benefit would "
"outweigh the legal costs. Thus, for the vast majority of old films, Agee "
"argued, the film will not be restored and distributed until the copyright "
"expires."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11687
msgid ""
"But by the time the copyright for these films expires, the film will have "
"expired. These films were produced on nitrate-based stock, and nitrate stock"
" dissolves over time. They will be gone, and the metal canisters in which "
"they are now stored will be filled with nothing more than dust."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11695
msgid ""
"<emphasis role='strong'>Of all the</emphasis> creative work produced by "
"humans anywhere, a tiny fraction has continuing commercial value. For that "
"tiny fraction, the copyright is a crucially important legal device. For that"
" tiny fraction, the copyright creates incentives to produce and distribute "
"the creative work. For that tiny fraction, the copyright acts as an "
"<quote>engine of free expression.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11703
msgid ""
"But even for that tiny fraction, the actual time during which the creative "
"work has a commercial life is extremely short. As I've indicated, most books"
" go out of print within one year. The same is true of music and film. "
"Commercial culture is sharklike. It must keep moving.  And when a creative "
"work falls out of favor with the commercial distributors, the commercial "
"life ends."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11713
msgid ""
"Yet that doesn't mean the life of the creative work ends. We don't keep "
"libraries of books in order to compete with Barnes &amp; Noble, and we don't"
" have archives of films because we expect people to choose between spending "
"Friday night watching new movies and spending Friday night watching a 1930 "
"news documentary. The noncommercial life of culture is important and "
"valuable&mdash;for entertainment but also, and more importantly, for "
"knowledge. To understand who we are, and where we came from, and how we have"
" made the mistakes that we have, we need to have access to this history."
msgstr ""

#.  PAGE BREAK 233
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11726
msgid ""
"Copyrights in this context do not drive an engine of free expression.  In "
"this context, there is no need for an exclusive right. Copyrights in this "
"context do no good."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11733
msgid ""
"Yet, for most of our history, they also did little harm. For most of our "
"history, when a work ended its commercial life, there was no <emphasis"
">copyright-related use</emphasis> that would be inhibited by an exclusive "
"right.  When a book went out of print, you could not buy it from a "
"publisher.  But you could still buy it from a used book store, and when a "
"used book store sells it, in America, at least, there is no need to pay the "
"copyright owner anything. Thus, the ordinary use of a book after its "
"commercial life ended was a use that was independent of copyright law."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11744
msgid ""
"The same was effectively true of film. Because the costs of restoring a "
"film&mdash;the real economic costs, not the lawyer costs&mdash;were so high,"
" it was never at all feasible to preserve or restore film. Like the remains "
"of a great dinner, when it's over, it's over. Once a film passed out of its "
"commercial life, it may have been archived for a bit, but that was the end "
"of its life so long as the market didn't have more to offer."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11753
msgid ""
"In other words, though copyright has been relatively short for most of our "
"history, long copyrights wouldn't have mattered for the works that lost "
"their commercial value. Long copyrights for these works would not have "
"interfered with anything."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11759
msgid "But this situation has now changed."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11763
msgid ""
"One crucially important consequence of the emergence of digital technologies"
" is to enable the archive that Brewster Kahle dreams of.  Digital "
"technologies now make it possible to preserve and give access to all sorts "
"of knowledge. Once a book goes out of print, we can now imagine digitizing "
"it and making it available to everyone, forever. Once a film goes out of "
"distribution, we could digitize it and make it available to everyone, "
"forever. Digital technologies give new life to copyrighted material after it"
" passes out of its commercial life. It is now possible to preserve and "
"assure universal access to this knowledge and culture, whereas before it was"
" not."
msgstr ""

#.  PAGE BREAK 234
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11776
msgid ""
"And now copyright law does get in the way. Every step of producing this "
"digital archive of our culture infringes on the exclusive right of "
"copyright. To digitize a book is to copy it. To do that requires permission "
"of the copyright owner. The same with music, film, or any other aspect of "
"our culture protected by copyright. The effort to make these things "
"available to history, or to researchers, or to those who just want to "
"explore, is now inhibited by a set of rules that were written for a "
"radically different context."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11786
msgid ""
"Here is the core of the harm that comes from extending terms: Now that "
"technology enables us to rebuild the library of Alexandria, the law gets in "
"the way. And it doesn't get in the way for any useful "
"<emphasis>copyright</emphasis> purpose, for the purpose of copyright is to "
"enable the commercial market that spreads culture. No, we are talking about "
"culture after it has lived its commercial life. In this context, copyright "
"is serving no purpose <emphasis>at all</emphasis> related to the spread of "
"knowledge. In this context, copyright is not an engine of free expression. "
"Copyright is a brake."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11797
msgid ""
"You may well ask, <quote>But if digital technologies lower the costs for "
"Brewster Kahle, then they will lower the costs for Random House, too.  So "
"won't Random House do as well as Brewster Kahle in spreading culture "
"widely?</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11803
msgid ""
"Maybe. Someday. But there is absolutely no evidence to suggest that "
"publishers would be as complete as libraries. If Barnes &amp; Noble offered "
"to lend books from its stores for a low price, would that eliminate the need"
" for libraries? Only if you think that the only role of a library is to "
"serve what <quote>the market</quote> would demand. But if you think the role"
" of a library is bigger than this&mdash;if you think its role is to archive "
"culture, whether there's a demand for any particular bit of that culture or "
"not&mdash;then we can't count on the commercial market to do our library "
"work for us."
msgstr ""

#.  f13.
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:11827
msgid ""
"Jason Schultz, <quote>The Myth of the 1976 Copyright `Chaos' Theory,</quote>"
" 20 December 2002, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #54</ulink>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11815
msgid ""
"I would be the first to agree that it should do as much as it can: We should"
" rely upon the market as much as possible to spread and enable culture. My "
"message is absolutely not antimarket. But where we see the market is not "
"doing the job, then we should allow nonmarket forces the freedom to fill the"
" gaps. As one researcher calculated for American culture, 94 percent of the "
"films, books, and music produced between 1923 and 1946 is not commercially "
"available. However much you love the commercial market, if access is a "
"value, then 6 percent is a failure to provide that value.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11834
msgid ""
"<emphasis role='strong'>In January 1999</emphasis>, we filed a lawsuit on "
"Eric Eldred's behalf in federal district court in Washington, D.C., asking "
"the court to declare the Sonny Bono Copyright Term Extension Act "
"unconstitutional. The two central claims that we made were (1)  that "
"extending existing terms violated the Constitution's <quote>limited "
"Times</quote> requirement, and (2) that extending terms by another twenty "
"years violated the First Amendment."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11843
msgid ""
"The district court dismissed our claims without even hearing an argument.  A"
" panel of the Court of Appeals for the D.C. Circuit also dismissed our "
"claims, though after hearing an extensive argument. But that decision at "
"least had a dissent, by one of the most conservative judges on that court. "
"That dissent gave our claims life."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11850
msgid ""
"Judge David Sentelle said the CTEA violated the requirement that copyrights "
"be for <quote>limited Times</quote> only. His argument was as elegant as it "
"was simple: If Congress can extend existing terms, then there is no "
"<quote>stopping point</quote> to Congress's power under the Copyright "
"Clause. The power to extend existing terms means Congress is not required to"
" grant terms that are <quote>limited.</quote> Thus, Judge Sentelle argued, "
"the court had to interpret the term <quote>limited Times</quote> to give it "
"meaning. And the best interpretation, Judge Sentelle argued, would be to "
"deny Congress the power to extend existing terms."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11861
msgid ""
"We asked the Court of Appeals for the D.C. Circuit as a whole to hear the "
"case. Cases are ordinarily heard in panels of three, except for important "
"cases or cases that raise issues specific to the circuit as a whole, where "
"the court will sit <quote>en banc</quote> to hear the case."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11866
msgid "Tatel, David"
msgstr ""

#.  PAGE BREAK 236
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11868
msgid ""
"The Court of Appeals rejected our request to hear the case en banc.  This "
"time, Judge Sentelle was joined by the most liberal member of the D.C. "
"Circuit, Judge David Tatel. Both the most conservative and the most liberal "
"judges in the D.C. Circuit believed Congress had overstepped its bounds."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11877
msgid ""
"It was here that most expected Eldred v. Ashcroft would die, for the Supreme"
" Court rarely reviews any decision by a court of appeals. (It hears about "
"one hundred cases a year, out of more than five thousand appeals.) And it "
"practically never reviews a decision that upholds a statute when no other "
"court has yet reviewed the statute."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11884
msgid ""
"But in February 2002, the Supreme Court surprised the world by granting our "
"petition to review the D.C. Circuit opinion. Argument was set for October of"
" 2002. The summer would be spent writing briefs and preparing for argument."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11890
msgid ""
"<emphasis role='strong'>It is over</emphasis> a year later as I write these "
"words. It is still astonishingly hard. If you know anything at all about "
"this story, you know that we lost the appeal. And if you know something more"
" than just the minimum, you probably think there was no way this case could "
"have been won. After our defeat, I received literally thousands of missives "
"by well-wishers and supporters, thanking me for my work on behalf of this "
"noble but doomed cause. And none from this pile was more significant to me "
"than the e-mail from my client, Eric Eldred."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11901
msgid ""
"But my client and these friends were wrong. This case could have been won. "
"It should have been won. And no matter how hard I try to retell this story "
"to myself, I can never escape believing that my own mistake lost it."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11906 freeculture.xml:11920
msgid "Steward, Geoffrey"
msgstr ""

#.  PAGE BREAK 237
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11908
msgid ""
"<emphasis role='strong'>The mistake</emphasis> was made early, though it "
"became obvious only at the very end. Our case had been supported from the "
"very beginning by an extraordinary lawyer, Geoffrey Stewart, and by the law "
"firm he had moved to, Jones, Day, Reavis and Pogue. Jones Day took a great "
"deal of heat from its copyright-protectionist clients for supporting us. "
"They ignored this pressure (something that few law firms today would ever "
"do), and throughout the case, they gave it everything they could."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11918 freeculture.xml:12281 freeculture.xml:12297
#: freeculture.xml:12394 freeculture.xml:12614 freeculture.xml:12645
#: freeculture.xml:12743
msgid "Ayer, Don"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11919
msgid "Bromberg, Dan"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11922
msgid ""
"There were three key lawyers on the case from Jones Day. Geoff Stewart was "
"the first, but then Dan Bromberg and Don Ayer became quite involved. "
"Bromberg and Ayer in particular had a common view about how this case would "
"be won: We would only win, they repeatedly told me, if we could make the "
"issue seem <quote>important</quote> to the Supreme Court. It had to seem as "
"if dramatic harm were being done to free speech and free culture; otherwise,"
" they would never vote against <quote>the most powerful media companies in "
"the world.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11932
msgid ""
"I hate this view of the law. Of course I thought the Sonny Bono Act was a "
"dramatic harm to free speech and free culture. Of course I still think it "
"is. But the idea that the Supreme Court decides the law based on how "
"important they believe the issues are is just wrong. It might be "
"<quote>right</quote> as in <quote>true,</quote> I thought, but it is "
"<quote>wrong</quote> as in <quote>it just shouldn't be that way.</quote> As "
"I believed that any faithful interpretation of what the framers of our "
"Constitution did would yield the conclusion that the CTEA was "
"unconstitutional, and as I believed that any faithful interpretation of what"
" the First Amendment means would yield the conclusion that the power to "
"extend existing copyright terms is unconstitutional, I was not persuaded "
"that we had to sell our case like soap.  Just as a law that bans the "
"swastika is unconstitutional not because the Court likes Nazis but because "
"such a law would violate the Constitution, so too, in my view, would the "
"Court decide whether Congress's law was constitutional based on the "
"Constitution, not based on whether they liked the values that the framers "
"put in the Constitution."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11953
msgid ""
"In any case, I thought, the Court must already see the danger and the harm "
"caused by this sort of law. Why else would they grant review? There was no "
"reason to hear the case in the Supreme Court if they weren't convinced that "
"this regulation was harmful. So in my view, we didn't need to persuade them "
"that this law was bad, we needed to show why it was unconstitutional."
msgstr ""

#.  PAGE BREAK 238
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11961
msgid ""
"There was one way, however, in which I felt politics would matter and in "
"which I thought a response was appropriate. I was convinced that the Court "
"would not hear our arguments if it thought these were just the arguments of "
"a group of lefty loons. This Supreme Court was not about to launch into a "
"new field of judicial review if it seemed that this field of review was "
"simply the preference of a small political minority.  Although my focus in "
"the case was not to demonstrate how bad the Sonny Bono Act was but to "
"demonstrate that it was unconstitutional, my hope was to make this argument "
"against a background of briefs that covered the full range of political "
"views. To show that this claim against the CTEA was grounded in "
"<emphasis>law</emphasis> and not politics, then, we tried to gather the "
"widest range of credible critics&mdash;credible not because they were rich "
"and famous, but because they, in the aggregate, demonstrated that this law "
"was unconstitutional regardless of one's politics."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11979 freeculture.xml:12006
msgid "Eagle Forum"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:11980
msgid "Schlafly, Phyllis"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11982
msgid ""
"The first step happened all by itself. Phyllis Schlafly's organization, "
"Eagle Forum, had been an opponent of the CTEA from the very beginning.  Mrs."
" Schlafly viewed the CTEA as a sellout by Congress. In November 1998, she "
"wrote a stinging editorial attacking the Republican Congress for allowing "
"the law to pass. As she wrote, <quote>Do you sometimes wonder why bills that"
" create a financial windfall to narrow special interests slide easily "
"through the intricate legislative process, while bills that benefit the "
"general public seem to get bogged down?</quote> The answer, as the editorial"
" documented, was the power of money.  Schlafly enumerated Disney's "
"contributions to the key players on the committees. It was money, not "
"justice, that gave Mickey Mouse twenty more years in Disney's control, "
"Schlafly argued."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:11996
msgid ""
"In the Court of Appeals, Eagle Forum was eager to file a brief supporting "
"our position. Their brief made the argument that became the core claim in "
"the Supreme Court: If Congress can extend the term of existing copyrights, "
"there is no limit to Congress's power to set terms.  That strong "
"conservative argument persuaded a strong conservative judge, Judge Sentelle."
msgstr ""

#.  PAGE BREAK 239
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12008
msgid ""
"In the Supreme Court, the briefs on our side were about as diverse as it "
"gets. They included an extraordinary historical brief by the Free Software "
"Foundation (home of the GNU project that made GNU/Linux possible). They "
"included a powerful brief about the costs of uncertainty by Intel. There "
"were two law professors' briefs, one by copyright scholars and one by First "
"Amendment scholars. There was an exhaustive and uncontroverted brief by the "
"world's experts in the history of the Progress Clause. And of course, there "
"was a new brief by Eagle Forum, repeating and strengthening its arguments."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12020
msgid "American Association of Law Libraries"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12021
msgid "National Writers Union"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12023
msgid ""
"Those briefs framed a legal argument. Then to support the legal argument, "
"there were a number of powerful briefs by libraries and archives, including "
"the Internet Archive, the American Association of Law Libraries, and the "
"National Writers Union."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12030
msgid ""
"But two briefs captured the policy argument best. One made the argument I've"
" already described: A brief by Hal Roach Studios argued that unless the law "
"was struck, a whole generation of American film would disappear. The other "
"made the economic argument absolutely clear."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12036
msgid "Akerlof, George"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12037
msgid "Arrow, Kenneth"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12038
msgid "Buchanan, James"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12039
msgid "Coase, Ronald"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12040
msgid "Friedman, Milton"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12042
msgid ""
"This economists' brief was signed by seventeen economists, including five "
"Nobel Prize winners, including Ronald Coase, James Buchanan, Milton "
"Friedman, Kenneth Arrow, and George Akerlof. The economists, as the list of "
"Nobel winners demonstrates, spanned the political spectrum. Their "
"conclusions were powerful: There was no plausible claim that extending the "
"terms of existing copyrights would do anything to increase incentives to "
"create. Such extensions were nothing more than <quote>rent-"
"seeking</quote>&mdash;the fancy term economists use to describe special-"
"interest legislation gone wild."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12052 freeculture.xml:12070 freeculture.xml:12283
#: freeculture.xml:12646
msgid "Fried, Charles"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12053
msgid "Morrison, Alan"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12054
msgid "Public Citizen"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:12055 freeculture.xml:12282 freeculture.xml:13431
msgid "Reagan, Ronald"
msgstr ""

#.  PAGE BREAK 240
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12057
msgid ""
"The same effort at balance was reflected in the legal team we gathered to "
"write our briefs in the case. The Jones Day lawyers had been with us from "
"the start. But when the case got to the Supreme Court, we added three "
"lawyers to help us frame this argument to this Court: Alan Morrison, a "
"lawyer from Public Citizen, a Washington group that had made constitutional "
"history with a series of seminal victories in the Supreme Court defending "
"individual rights; my colleague and dean, Kathleen Sullivan, who had argued "
"many cases in the Court, and who had advised us early on about a First "
"Amendment strategy; and finally, former solicitor general Charles Fried."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><secondary>
#: freeculture.xml:12072
msgid "Commerce Clause of"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12074
msgid ""
"Fried was a special victory for our side. Every other former solicitor "
"general was hired by the other side to defend Congress's power to give media"
" companies the special favor of extended copyright terms. Fried was the only"
" one who turned down that lucrative assignment to stand up for something he "
"believed in. He had been Ronald Reagan's chief lawyer in the Supreme Court. "
"He had helped craft the line of cases that limited Congress's power in the "
"context of the Commerce Clause. And while he had argued many positions in "
"the Supreme Court that I personally disagreed with, his joining the cause "
"was a vote of confidence in our argument."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12086
msgid ""
"The government, in defending the statute, had its collection of friends, as "
"well. Significantly, however, none of these <quote>friends</quote> included "
"historians or economists. The briefs on the other side of the case were "
"written exclusively by major media companies, congressmen, and copyright "
"holders."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12093
msgid ""
"The media companies were not surprising. They had the most to gain from the "
"law. The congressmen were not surprising either&mdash;they were defending "
"their power and, indirectly, the gravy train of contributions such power "
"induced. And of course it was not surprising that the copyright holders "
"would defend the idea that they should continue to have the right to control"
" who did what with content they wanted to control."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12101
msgid "Gershwin, George"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12102
msgid "Porgy and Bess"
msgstr ""

#.  f14.
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:12112
msgid ""
"Brief of Amici Dr. Seuss Enterprise et al., <citetitle>Eldred</citetitle> v."
" <citetitle>Ashcroft</citetitle>, 537 U.S.  (2003) (No. 01-618), 19."
msgstr ""

#.  f15.
#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:12120
msgid ""
"Dinitia Smith, <quote>Immortal Words, Immortal Royalties? Even Mickey Mouse "
"Joins the Fray,</quote> <citetitle>New York Times</citetitle>, 28 March "
"1998, B7."
msgstr ""

#.  PAGE BREAK 241
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12105
msgid ""
"Dr. Seuss's representatives, for example, argued that it was better for the "
"Dr. Seuss estate to control what happened to Dr. Seuss's work&mdash; better "
"than allowing it to fall into the public domain&mdash;because if this "
"creativity were in the public domain, then people could use it to "
"<quote>glorify drugs or to create pornography.</quote><placeholder "
"type=\"footnote\" id=\"0\"/> That was also the motive of the Gershwin "
"estate, which defended its <quote>protection</quote> of the work of George "
"Gershwin. They refuse, for example, to license <citetitle>Porgy and "
"Bess</citetitle> to anyone who refuses to use African Americans in the "
"cast.<placeholder type=\"footnote\" id=\"1\"/> That's their view of how this"
" part of American culture should be controlled, and they wanted this law to "
"help them effect that control."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12129
msgid ""
"This argument made clear a theme that is rarely noticed in this debate.  "
"When Congress decides to extend the term of existing copyrights, Congress is"
" making a choice about which speakers it will favor.  Famous and beloved "
"copyright owners, such as the Gershwin estate and Dr. Seuss, come to "
"Congress and say, <quote>Give us twenty years to control the speech about "
"these icons of American culture. We'll do better with them than anyone "
"else.</quote> Congress of course likes to reward the popular and famous by "
"giving them what they want. But when Congress gives people an exclusive "
"right to speak in a certain way, that's just what the First Amendment is "
"traditionally meant to block."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12141
msgid ""
"We argued as much in a final brief. Not only would upholding the CTEA mean "
"that there was no limit to the power of Congress to extend "
"copyrights&mdash;extensions that would further concentrate the market; it "
"would also mean that there was no limit to Congress's power to play "
"favorites, through copyright, with who has the right to speak."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12148
msgid ""
"<emphasis role='strong'>Between February</emphasis> and October, there was "
"little I did beyond preparing for this case. Early on, as I said, I set the "
"strategy."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12153 freeculture.xml:12339
msgid "O'Connor, Sandra Day"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12155
msgid ""
"The Supreme Court was divided into two important camps. One camp we called "
"<quote>the Conservatives.</quote> The other we called <quote>the "
"Rest.</quote> The Conservatives included Chief Justice Rehnquist, Justice "
"O'Connor, Justice Scalia, Justice Kennedy, and Justice Thomas. These five "
"had been the most consistent in limiting Congress's power. They were the "
"five who had supported the <citetitle>Lopez/Morrison</citetitle> line of "
"cases that said that an enumerated power had to be interpreted to assure "
"that Congress's powers had limits."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12164 freeculture.xml:12189 freeculture.xml:12541
#: freeculture.xml:12553
msgid "Breyer, Stephen"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12165 freeculture.xml:12505
msgid "Ginsburg, Ruth Bader"
msgstr ""

#.  PAGE BREAK 242
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12167
msgid ""
"The Rest were the four Justices who had strongly opposed limits on "
"Congress's power. These four&mdash;Justice Stevens, Justice Souter, Justice "
"Ginsburg, and Justice Breyer&mdash;had repeatedly argued that the "
"Constitution gives Congress broad discretion to decide how best to implement"
" its powers. In case after case, these justices had argued that the Court's "
"role should be one of deference. Though the votes of these four justices "
"were the votes that I personally had most consistently agreed with, they "
"were also the votes that we were least likely to get."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12179
msgid ""
"In particular, the least likely was Justice Ginsburg's. In addition to her "
"general view about deference to Congress (except where issues of gender are "
"involved), she had been particularly deferential in the context of "
"intellectual property protections. She and her daughter (an excellent and "
"well-known intellectual property scholar) were cut from the same "
"intellectual property cloth. We expected she would agree with the writings "
"of her daughter: that Congress had the power in this context to do as it "
"wished, even if what Congress wished made little sense."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12191
msgid ""
"Close behind Justice Ginsburg were two justices whom we also viewed as "
"unlikely allies, though possible surprises. Justice Souter strongly favored "
"deference to Congress, as did Justice Breyer. But both were also very "
"sensitive to free speech concerns. And as we strongly believed, there was a "
"very important free speech argument against these retrospective extensions."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12200
msgid ""
"The only vote we could be confident about was that of Justice Stevens. "
"History will record Justice Stevens as one of the greatest judges on this "
"Court. His votes are consistently eclectic, which just means that no simple "
"ideology explains where he will stand. But he had consistently argued for "
"limits in the context of intellectual property generally. We were fairly "
"confident he would recognize limits here."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12208
msgid ""
"This analysis of <quote>the Rest</quote> showed most clearly where our focus"
" had to be: on the Conservatives. To win this case, we had to crack open "
"these five and get at least a majority to go our way. Thus, the single "
"overriding argument that animated our claim rested on the Conservatives' "
"most important jurisprudential innovation&mdash;the argument that Judge "
"Sentelle had relied upon in the Court of Appeals, that Congress's power must"
" be interpreted so that its enumerated powers have limits."
msgstr ""

#.  PAGE BREAK 243
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12218
msgid ""
"This then was the core of our strategy&mdash;a strategy for which I am "
"responsible. We would get the Court to see that just as with the "
"<citetitle>Lopez</citetitle> case, under the government's argument here, "
"Congress would always have unlimited power to extend existing terms. If "
"anything was plain about Congress's power under the Progress Clause, it was "
"that this power was supposed to be <quote>limited.</quote> Our aim would be "
"to get the Court to reconcile <citetitle>Eldred</citetitle> with "
"<citetitle>Lopez</citetitle>: If Congress's power to regulate commerce was "
"limited, then so, too, must Congress's power to regulate copyright be "
"limited."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12232
msgid ""
"<emphasis role='strong'>The argument</emphasis> on the government's side "
"came down to this: Congress has done it before. It should be allowed to do "
"it again. The government claimed that from the very beginning, Congress has "
"been extending the term of existing copyrights. So, the government argued, "
"the Court should not now say that practice is unconstitutional."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12240
msgid ""
"There was some truth to the government's claim, but not much. We certainly "
"agreed that Congress had extended existing terms in 1831 and in 1909. And of"
" course, in 1962, Congress began extending existing terms "
"regularly&mdash;eleven times in forty years."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12247
msgid ""
"But this <quote>consistency</quote> should be kept in perspective. Congress "
"extended existing terms once in the first hundred years of the Republic.  It"
" then extended existing terms once again in the next fifty. Those rare "
"extensions are in contrast to the now regular practice of extending existing"
" terms. Whatever restraint Congress had had in the past, that restraint was "
"now gone. Congress was now in a cycle of extensions; there was no reason to "
"expect that cycle would end. This Court had not hesitated to intervene where"
" Congress was in a similar cycle of extension.  There was no reason it "
"couldn't intervene here."
msgstr ""

#.  PAGE BREAK 244
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12262
msgid ""
"<emphasis role='strong'>Oral argument</emphasis> was scheduled for the first"
" week in October. I arrived in D.C. two weeks before the argument. During "
"those two weeks, I was repeatedly <quote>mooted</quote> by lawyers who had "
"volunteered to help in the case. Such <quote>moots</quote> are basically "
"practice rounds, where wannabe justices fire questions at wannabe winners."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12272
msgid ""
"I was convinced that to win, I had to keep the Court focused on a single "
"point: that if this extension is permitted, then there is no limit to the "
"power to set terms. Going with the government would mean that terms would be"
" effectively unlimited; going with us would give Congress a clear line to "
"follow: Don't extend existing terms. The moots were an effective practice; I"
" found ways to take every question back to this central idea."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12285
msgid ""
"One moot was before the lawyers at Jones Day. Don Ayer was the skeptic. He "
"had served in the Reagan Justice Department with Solicitor General Charles "
"Fried. He had argued many cases before the Supreme Court. And in his review "
"of the moot, he let his concern speak:"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12291
msgid ""
"<quote>I'm just afraid that unless they really see the harm, they won't be "
"willing to upset this practice that the government says has been a "
"consistent practice for two hundred years. You have to make them see the "
"harm&mdash;passionately get them to see the harm. For if they don't see "
"that, then we haven't any chance of winning.</quote>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12299
msgid ""
"He may have argued many cases before this Court, I thought, but he didn't "
"understand its soul. As a clerk, I had seen the Justices do the right "
"thing&mdash;not because of politics but because it was right. As a law "
"professor, I had spent my life teaching my students that this Court does the"
" right thing&mdash;not because of politics but because it is right. As I "
"listened to Ayer's plea for passion in pressing politics, I understood his "
"point, and I rejected it. Our argument was right. That was enough.  Let the "
"politicians learn to see that it was also good."
msgstr ""

#.  PAGE BREAK 245
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12309
msgid ""
"<emphasis role='strong'>The night before</emphasis> the argument, a line of "
"people began to form in front of the Supreme Court. The case had become a "
"focus of the press and of the movement to free culture. Hundreds stood in "
"line for the chance to see the proceedings. Scores spent the night on the "
"Supreme Court steps so that they would be assured a seat."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12319
msgid ""
"Not everyone has to wait in line. People who know the Justices can ask for "
"seats they control. (I asked Justice Scalia's chambers for seats for my "
"parents, for example.) Members of the Supreme Court bar can get a seat in a "
"special section reserved for them. And senators and congressmen have a "
"special place where they get to sit, too. And finally, of course, the press "
"has a gallery, as do clerks working for the Justices on the Court. As we "
"entered that morning, there was no place that was not taken. This was an "
"argument about intellectual property law, yet the halls were filled. As I "
"walked in to take my seat at the front of the Court, I saw my parents "
"sitting on the left. As I sat down at the table, I saw Jack Valenti sitting "
"in the special section ordinarily reserved for family of the Justices."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12334
msgid ""
"When the Chief Justice called me to begin my argument, I began where I "
"intended to stay: on the question of the limits on Congress's power. This "
"was a case about enumerated powers, I said, and whether those enumerated "
"powers had any limit."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12341
msgid ""
"Justice O'Connor stopped me within one minute of my opening.  The history "
"was bothering her."
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:12346
msgid ""
"justice o'connor: Congress has extended the term so often through the years,"
" and if you are right, don't we run the risk of upsetting previous "
"extensions of time? I mean, this seems to be a practice that began with the "
"very first act."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12353
msgid ""
"She was quite willing to concede <quote>that this flies directly in the face"
" of what the framers had in mind.</quote> But my response again and again "
"was to emphasize limits on Congress's power."
msgstr ""

#.  PAGE BREAK 246
#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:12359
msgid ""
"mr. lessig: Well, if it flies in the face of what the framers had in mind, "
"then the question is, is there a way of interpreting their words that gives "
"effect to what they had in mind, and the answer is yes."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12367
msgid ""
"There were two points in this argument when I should have seen where the "
"Court was going. The first was a question by Justice Kennedy, who observed,"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:12373
msgid ""
"justice kennedy: Well, I suppose implicit in the argument that the '76 act, "
"too, should have been declared void, and that we might leave it alone "
"because of the disruption, is that for all these years the act has impeded "
"progress in science and the useful arts.  I just don't see any empirical "
"evidence for that."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12381
msgid ""
"Here follows my clear mistake. Like a professor correcting a student, I "
"answered,"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:12387
msgid ""
"mr. lessig: Justice, we are not making an empirical claim at all.  Nothing "
"in our Copyright Clause claim hangs upon the empirical assertion about "
"impeding progress. Our only argument is this is a structural limit necessary"
" to assure that what would be an effectively perpetual term not be permitted"
" under the copyright laws."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12396
msgid ""
"That was a correct answer, but it wasn't the right answer. The right answer "
"was instead that there was an obvious and profound harm. Any number of "
"briefs had been written about it. He wanted to hear it. And here was the "
"place Don Ayer's advice should have mattered. This was a softball; my answer"
" was a swing and a miss."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12403
msgid ""
"The second came from the Chief, for whom the whole case had been crafted. "
"For the Chief Justice had crafted the <citetitle>Lopez</citetitle> ruling, "
"and we hoped that he would see this case as its second cousin."
msgstr ""

#.  PAGE BREAK 247
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12408
msgid ""
"It was clear a second into his question that he wasn't at all sympathetic.  "
"To him, we were a bunch of anarchists. As he asked:"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:12415
msgid ""
"chief justice: Well, but you want more than that. You want the right to copy"
" verbatim other people's books, don't you?"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:12419
msgid ""
"mr. lessig: We want the right to copy verbatim works that should be in the "
"public domain and would be in the public domain but for a statute that "
"cannot be justified under ordinary First Amendment analysis or under a "
"proper reading of the limits built into the Copyright Clause."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12427
msgid "Olson, Theodore B."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12429
msgid ""
"Things went better for us when the government gave its argument; for now the"
" Court picked up on the core of our claim. As Justice Scalia asked Solicitor"
" General Olson,"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:12435
msgid ""
"justice scalia: You say that the functional equivalent of an unlimited time "
"would be a violation [of the Constitution], but that's precisely the "
"argument that's being made by petitioners here, that a limited time which is"
" extendable is the functional equivalent of an unlimited time."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12443
msgid ""
"When Olson was finished, it was my turn to give a closing rebuttal.  Olson's"
" flailing had revived my anger. But my anger still was directed to the "
"academic, not the practical. The government was arguing as if this were the "
"first case ever to consider limits on Congress's Copyright and Patent Clause"
" power. Ever the professor and not the advocate, I closed by pointing out "
"the long history of the Court imposing limits on Congress's power in the "
"name of the Copyright and Patent Clause&mdash; indeed, the very first case "
"striking a law of Congress as exceeding a specific enumerated power was "
"based upon the Copyright and Patent Clause. All true. But it wasn't going to"
" move the Court to my side."
msgstr ""

#.  PAGE BREAK 248
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12456
msgid ""
"<emphasis role='strong'>As I left</emphasis> the court that day, I knew "
"there were a hundred points I wished I could remake. There were a hundred "
"questions I wished I had answered differently. But one way of thinking about"
" this case left me optimistic."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12465
msgid ""
"The government had been asked over and over again, what is the limit? Over "
"and over again, it had answered there is no limit. This was precisely the "
"answer I wanted the Court to hear. For I could not imagine how the Court "
"could understand that the government believed Congress's power was unlimited"
" under the terms of the Copyright Clause, and sustain the government's "
"argument. The solicitor general had made my argument for me. No matter how "
"often I tried, I could not understand how the Court could find that "
"Congress's power under the Commerce Clause was limited, but under the "
"Copyright Clause, unlimited. In those rare moments when I let myself believe"
" that we may have prevailed, it was because I felt this Court&mdash;in "
"particular, the Conservatives&mdash;would feel itself constrained by the "
"rule of law that it had established elsewhere."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12480
msgid ""
"<emphasis role='strong'>The morning</emphasis> of January 15, 2003, I was "
"five minutes late to the office and missed the 7:00 A.M. call from the "
"Supreme Court clerk. Listening to the message, I could tell in an instant "
"that she had bad news to report.The Supreme Court had affirmed the decision "
"of the Court of Appeals. Seven justices had voted in the majority. There "
"were two dissents."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12488
msgid ""
"A few seconds later, the opinions arrived by e-mail. I took the phone off "
"the hook, posted an announcement to our blog, and sat down to see where I "
"had been wrong in my reasoning."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12493
msgid ""
"My <emphasis>reasoning</emphasis>. Here was a case that pitted all the money"
" in the world against <emphasis>reasoning</emphasis>. And here was the last "
"naïve law professor, scouring the pages, looking for reasoning."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12499
msgid ""
"I first scoured the opinion, looking for how the Court would distinguish the"
" principle in this case from the principle in <citetitle>Lopez</citetitle>. "
"The argument was nowhere to be found. The case was not even cited. The "
"argument that was the core argument of our case did not even appear in the "
"Court's opinion."
msgstr ""

#.  PAGE BREAK 249
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12509
msgid ""
"Justice Ginsburg simply ignored the enumerated powers argument.  Consistent "
"with her view that Congress's power was not limited generally, she had found"
" Congress's power not limited here."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12514
msgid ""
"Her opinion was perfectly reasonable&mdash;for her, and for Justice Souter. "
"Neither believes in <citetitle>Lopez</citetitle>. It would be too much to "
"expect them to write an opinion that recognized, much less explained, the "
"doctrine they had worked so hard to defeat."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12520
msgid ""
"But as I realized what had happened, I couldn't quite believe what I was "
"reading. I had said there was no way this Court could reconcile limited "
"powers with the Commerce Clause and unlimited powers with the Progress "
"Clause. It had never even occurred to me that they could reconcile the two "
"simply <emphasis>by not addressing the argument</emphasis>. There was no "
"inconsistency because they would not talk about the two together.  There was"
" therefore no principle that followed from the <citetitle>Lopez</citetitle> "
"case: In that context, Congress's power would be limited, but in this "
"context it would not."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12531
msgid ""
"Yet by what right did they get to choose which of the framers' values they "
"would respect? By what right did they&mdash;the silent five&mdash;get to "
"select the part of the Constitution they would enforce based on the values "
"they thought important? We were right back to the argument that I said I "
"hated at the start: I had failed to convince them that the issue here was "
"important, and I had failed to recognize that however much I might hate a "
"system in which the Court gets to pick the constitutional values that it "
"will respect, that is the system we have."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12543
msgid ""
"Justices Breyer and Stevens wrote very strong dissents. Stevens's opinion "
"was crafted internal to the law: He argued that the tradition of "
"intellectual property law should not support this unjustified extension of "
"terms. He based his argument on a parallel analysis that had governed in the"
" context of patents (so had we). But the rest of the Court discounted the "
"parallel&mdash;without explaining how the very same words in the Progress "
"Clause could come to mean totally different things depending upon whether "
"the words were about patents or copyrights.  The Court let Justice Stevens's"
" charge go unanswered."
msgstr ""

#.  PAGE BREAK 250
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12556
msgid ""
"Justice Breyer's opinion, perhaps the best opinion he has ever written, was "
"external to the Constitution. He argued that the term of copyrights has "
"become so long as to be effectively unlimited. We had said that under the "
"current term, a copyright gave an author 99.8 percent of the value of a "
"perpetual term. Breyer said we were wrong, that the actual number was "
"99.9997 percent of a perpetual term. Either way, the point was clear: If the"
" Constitution said a term had to be <quote>limited,</quote> and the existing"
" term was so long as to be effectively unlimited, then it was "
"unconstitutional."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12567
msgid ""
"These two justices understood all the arguments we had made. But because "
"neither believed in the <citetitle>Lopez</citetitle> case, neither was "
"willing to push it as a reason to reject this extension. The case was "
"decided without anyone having addressed the argument that we had carried "
"from Judge Sentelle. It was <citetitle>Hamlet</citetitle> without the "
"Prince."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12574
msgid ""
"<emphasis role='strong'>Defeat brings depression</emphasis>. They say it is "
"a sign of health when depression gives way to anger. My anger came quickly, "
"but it didn't cure the depression. This anger was of two sorts."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12579
msgid "originalism"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12581
msgid ""
"It was first anger with the five <quote>Conservatives.</quote> It would have"
" been one thing for them to have explained why the principle of "
"<citetitle>Lopez</citetitle> didn't apply in this case. That wouldn't have "
"been a very convincing argument, I don't believe, having read it made by "
"others, and having tried to make it myself. But it at least would have been "
"an act of integrity.  These justices in particular have repeatedly said that"
" the proper mode of interpreting the Constitution is "
"<quote>originalism</quote>&mdash;to first understand the framers' text, "
"interpreted in their context, in light of the structure of the Constitution."
" That method had produced <citetitle>Lopez</citetitle> and many other "
"<quote>originalist</quote> rulings. Where was their "
"<quote>originalism</quote> now?"
msgstr ""

#.  PAGE BREAK 251
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12594
msgid ""
"Here, they had joined an opinion that never once tried to explain what the "
"framers had meant by crafting the Progress Clause as they did; they joined "
"an opinion that never once tried to explain how the structure of that clause"
" would affect the interpretation of Congress's power. And they joined an "
"opinion that didn't even try to explain why this grant of power could be "
"unlimited, whereas the Commerce Clause would be limited. In short, they had "
"joined an opinion that did not apply to, and was inconsistent with, their "
"own method for interpreting the Constitution. This opinion may well have "
"yielded a result that they liked. It did not produce a reason that was "
"consistent with their own principles."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12609
msgid ""
"My anger with the Conservatives quickly yielded to anger with myself.  For I"
" had let a view of the law that I liked interfere with a view of the law as "
"it is."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12616
msgid ""
"Most lawyers, and most law professors, have little patience for idealism "
"about courts in general and this Supreme Court in particular.  Most have a "
"much more pragmatic view. When Don Ayer said that this case would be won "
"based on whether I could convince the Justices that the framers' values were"
" important, I fought the idea, because I didn't want to believe that that is"
" how this Court decides. I insisted on arguing this case as if it were a "
"simple application of a set of principles.  I had an argument that followed "
"in logic. I didn't need to waste my time showing it should also follow in "
"popularity."
msgstr ""

#.  PAGE BREAK 252
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12627
msgid ""
"As I read back over the transcript from that argument in October, I can see "
"a hundred places where the answers could have taken the conversation in "
"different directions, where the truth about the harm that this unchecked "
"power will cause could have been made clear to this Court. Justice Kennedy "
"in good faith wanted to be shown. I, idiotically, corrected his question. "
"Justice Souter in good faith wanted to be shown the First Amendment harms. "
"I, like a math teacher, reframed the question to make the logical point. I "
"had shown them how they could strike this law of Congress if they wanted to."
" There were a hundred places where I could have helped them want to, yet my "
"stubbornness, my refusal to give in, stopped me. I have stood before "
"hundreds of audiences trying to persuade; I have used passion in that effort"
" to persuade; but I refused to stand before this audience and try to "
"persuade with the passion I had used elsewhere. It was not the basis on "
"which a court should decide the issue."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12648
msgid ""
"Would it have been different if I had argued it differently? Would it have "
"been different if Don Ayer had argued it? Or Charles Fried? Or Kathleen "
"Sullivan?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12653
msgid ""
"My friends huddled around me to insist it would not. The Court was not "
"ready, my friends insisted. This was a loss that was destined. It would take"
" a great deal more to show our society why our framers were right. And when "
"we do that, we will be able to show that Court."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12659
msgid ""
"Maybe, but I doubt it. These Justices have no financial interest in doing "
"anything except the right thing. They are not lobbied. They have little "
"reason to resist doing right. I can't help but think that if I had stepped "
"down from this pretty picture of dispassionate justice, I could have "
"persuaded."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12667
msgid ""
"And even if I couldn't, then that doesn't excuse what happened in January. "
"For at the start of this case, one of America's leading intellectual "
"property professors stated publicly that my bringing this case was a "
"mistake. <quote>The Court is not ready,</quote> Peter Jaszi said; this issue"
" should not be raised until it is."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12674
msgid ""
"After the argument and after the decision, Peter said to me, and publicly, "
"that he was wrong. But if indeed that Court could not have been persuaded, "
"then that is all the evidence that's needed to know that here again Peter "
"was right. Either I was not ready to argue this case in a way that would do "
"some good or they were not ready to hear this case in a way that would do "
"some good. Either way, the decision to bring this case&mdash;a decision I "
"had made four years before&mdash;was wrong."
msgstr ""

#.  PAGE BREAK 253
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12683
msgid ""
"<emphasis role='strong'>While the reaction</emphasis> to the Sonny Bono Act "
"itself was almost unanimously negative, the reaction to the Court's decision"
" was mixed.  No one, at least in the press, tried to say that extending the "
"term of copyright was a good idea. We had won that battle over ideas. Where "
"the decision was praised, it was praised by papers that had been skeptical "
"of the Court's activism in other cases. Deference was a good thing, even if "
"it left standing a silly law. But where the decision was attacked, it was "
"attacked because it left standing a silly and harmful law. <citetitle>The "
"New York Times</citetitle> wrote in its editorial,"
msgstr ""

#. type: Content of: <book><part><chapter><blockquote><para>
#: freeculture.xml:12698
msgid ""
"In effect, the Supreme Court's decision makes it likely that we are seeing "
"the beginning of the end of public domain and the birth of copyright "
"perpetuity. The public domain has been a grand experiment, one that should "
"not be allowed to die. The ability to draw freely on the entire creative "
"output of humanity is one of the reasons we live in a time of such fruitful "
"creative ferment."
msgstr ""

#. type: Content of: <book><part><chapter><figure><indexterm><primary>
#: freeculture.xml:12712 freeculture.xml:12717
msgid "Bolling, Ruben"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12707
msgid ""
"The best responses were in the cartoons. There was a gaggle of hilarious "
"images&mdash;of Mickey in jail and the like. The best, from my view of the "
"case, was Ruben Bolling's, reproduced on the next page (<xref "
"linkend=\"fig-18\"/>). The <quote>powerful and wealthy</quote> line is a bit"
" unfair. But the punch in the face felt exactly like that.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><figure><title>
#: freeculture.xml:12715
msgid "Tom the Dancing Bug cartoon"
msgstr ""

#. type: Content of: <book><part><chapter><figure>
#: freeculture.xml:12716
msgid ""
"<graphic fileref=\"images/18.png\" align=\"center\" width=\"95%\"></graphic>"
" <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12720
msgid ""
"The image that will always stick in my head is that evoked by the quote from"
" <citetitle>The New York Times</citetitle>. That <quote>grand "
"experiment</quote> we call the <quote>public domain</quote> is over? When I "
"can make light of it, I think, <quote>Honey, I shrunk the "
"Constitution.</quote> But I can rarely make light of it. We had in our "
"Constitution a commitment to free culture. In the case that I fathered, the "
"Supreme Court effectively renounced that commitment. A better lawyer would "
"have made them see differently."
msgstr ""

#. type: Content of: <book><part><chapter><title>
#: freeculture.xml:12731
msgid "CHAPTER FOURTEEN: Eldred II"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12733
msgid ""
"<emphasis role='strong'>The day</emphasis> <citetitle>Eldred</citetitle> was"
" decided, fate would have it that I was to travel to Washington, D.C. (The "
"day the rehearing petition in <citetitle>Eldred</citetitle> was "
"denied&mdash;meaning the case was really finally over&mdash;fate would have "
"it that I was giving a speech to technologists at Disney World.)  This was a"
" particularly long flight to my least favorite city. The drive into the city"
" from Dulles was delayed because of traffic, so I opened up my computer and "
"wrote an op-ed piece."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12745
msgid ""
"It was an act of contrition. During the whole of the flight from San "
"Francisco to Washington, I had heard over and over again in my head the same"
" advice from Don Ayer: You need to make them see why it is important. And "
"alternating with that command was the question of Justice Kennedy: "
"<quote>For all these years the act has impeded progress in science and the "
"useful arts. I just don't see any empirical evidence for that.</quote> And "
"so, having failed in the argument of constitutional principle, finally, I "
"turned to an argument of politics."
msgstr ""

#.  PAGE BREAK 256
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12755
msgid ""
"<citetitle>The New York Times</citetitle> published the piece. In it, I "
"proposed a simple fix: Fifty years after a work has been published, the "
"copyright owner would be required to register the work and pay a small fee. "
"If he paid the fee, he got the benefit of the full term of copyright. If he "
"did not, the work passed into the public domain."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12763
msgid ""
"We called this the Eldred Act, but that was just to give it a name.  Eric "
"Eldred was kind enough to let his name be used once again, but as he said "
"early on, it won't get passed unless it has another name."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12768
msgid ""
"Or another two names. For depending upon your perspective, this is either "
"the <quote>Public Domain Enhancement Act</quote> or the <quote>Copyright "
"Term Deregulation Act.</quote> Either way, the essence of the idea is clear "
"and obvious: Remove copyright where it is doing nothing except blocking "
"access and the spread of knowledge. Leave it for as long as Congress allows "
"for those works where its worth is at least $1. But for everything else, let"
" the content go."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12776 freeculture.xml:12977
msgid "Forbes, Steve"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12778
msgid ""
"The reaction to this idea was amazingly strong. Steve Forbes endorsed it in "
"an editorial. I received an avalanche of e-mail and letters expressing "
"support. When you focus the issue on lost creativity, people can see the "
"copyright system makes no sense. As a good Republican might say, here "
"government regulation is simply getting in the way of innovation and "
"creativity. And as a good Democrat might say, here the government is "
"blocking access and the spread of knowledge for no good reason. Indeed, "
"there is no real difference between Democrats and Republicans on this issue."
" Anyone can recognize the stupid harm of the present system."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12790
msgid ""
"Indeed, many recognized the obvious benefit of the registration requirement."
"  For one of the hardest things about the current system for people who want"
" to license content is that there is no obvious place to look for the "
"current copyright owners. Since registration is not required, since marking "
"content is not required, since no formality at all is required, it is often "
"impossibly hard to locate copyright owners to ask permission to use or "
"license their work. This system would lower these costs, by establishing at "
"least one registry where copyright owners could be identified."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12800
msgid "Berlin Act (1908)"
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12801 freeculture.xml:12842
msgid "Berne Convention (1908)"
msgstr ""

#. type: Content of:
#. <book><part><chapter><para><footnote><para><indexterm><primary>
#: freeculture.xml:12809
msgid "German copyright law"
msgstr ""

#. type: Content of: <book><part><chapter><para><footnote><para>
#: freeculture.xml:12809
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> Until the 1908 Berlin Act of the "
"Berne Convention, national copyright legislation sometimes made protection "
"depend upon compliance with formalities such as registration, deposit, and "
"affixation of notice of the author's claim of copyright. However, starting "
"with the 1908 act, every text of the Convention has provided that <quote>the"
" enjoyment and the exercise</quote> of rights guaranteed by the Convention "
"<quote>shall not be subject to any formality.</quote> The prohibition "
"against formalities is presently embodied in Article 5(2) of the Paris Text "
"of the Berne Convention. Many countries continue to impose some form of "
"deposit or registration requirement, albeit not as a condition of copyright."
" French law, for example, requires the deposit of copies of works in "
"national repositories, principally the National Museum.  Copies of books "
"published in the United Kingdom must be deposited in the British Library. "
"The German Copyright Act provides for a Registrar of Authors where the "
"author's true name can be filed in the case of anonymous or pseudonymous "
"works. Paul Goldstein, <citetitle>International Intellectual Property Law, "
"Cases and Materials</citetitle> (New York: Foundation Press, 2001), "
"153&ndash;54."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12804
msgid ""
"As I described in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"property-i\"/>, formalities in copyright law were removed in 1976,"
" when Congress followed the Europeans by abandoning any formal requirement "
"before a copyright is granted.<placeholder type=\"footnote\" id=\"0\"/> The "
"Europeans are said to view copyright as a <quote>natural right.</quote> "
"Natural rights don't need forms to exist. Traditions, like the Anglo-"
"American tradition that required copyright owners to follow form if their "
"rights were to be protected, did not, the Europeans thought, properly "
"respect the dignity of the author. My right as a creator turns on my "
"creativity, not upon the special favor of the government."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12836
msgid ""
"That's great rhetoric. It sounds wonderfully romantic. But it is absurd "
"copyright policy. It is absurd especially for authors, because a world "
"without formalities harms the creator. The ability to spread <quote>Walt "
"Disney creativity</quote> is destroyed when there is no simple way to know "
"what's protected and what's not."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12844
msgid ""
"The fight against formalities achieved its first real victory in Berlin in "
"1908. International copyright lawyers amended the Berne Convention in 1908, "
"to require copyright terms of life plus fifty years, as well as the "
"abolition of copyright formalities. The formalities were hated because the "
"stories of inadvertent loss were increasingly common. It was as if a Charles"
" Dickens character ran all copyright offices, and the failure to dot an "
"<citetitle>i</citetitle> or cross a <citetitle>t</citetitle> resulted in the"
" loss of widows' only income."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12854
msgid ""
"These complaints were real and sensible. And the strictness of the "
"formalities, especially in the United States, was absurd. The law should "
"always have ways of forgiving innocent mistakes. There is no reason "
"copyright law couldn't, as well. Rather than abandoning formalities totally,"
" the response in Berlin should have been to embrace a more equitable system "
"of registration."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12862
msgid ""
"Even that would have been resisted, however, because registration in the "
"nineteenth and twentieth centuries was still expensive. It was also a "
"hassle. The abolishment of formalities promised not only to save the "
"starving widows, but also to lighten an unnecessary regulatory burden "
"imposed upon creators."
msgstr ""

#.  PAGE BREAK 258
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12870
msgid ""
"In addition to the practical complaint of authors in 1908, there was a moral"
" claim as well. There was no reason that creative property should be a "
"second-class form of property. If a carpenter builds a table, his rights "
"over the table don't depend upon filing a form with the government.  He has "
"a property right over the table <quote>naturally,</quote> and he can assert "
"that right against anyone who would steal the table, whether or not he has "
"informed the government of his ownership of the table."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12882
msgid ""
"This argument is correct, but its implications are misleading. For the "
"argument in favor of formalities does not depend upon creative property "
"being second-class property. The argument in favor of formalities turns upon"
" the special problems that creative property presents.  The law of "
"formalities responds to the special physics of creative property, to assure "
"that it can be efficiently and fairly spread."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12891
msgid ""
"No one thinks, for example, that land is second-class property just because "
"you have to register a deed with a court if your sale of land is to be "
"effective. And few would think a car is second-class property just because "
"you must register the car with the state and tag it with a license.  In both"
" of those cases, everyone sees that there is an important reason to secure "
"registration&mdash;both because it makes the markets more efficient and "
"because it better secures the rights of the owner. Without a registration "
"system for land, landowners would perpetually have to guard their property. "
"With registration, they can simply point the police to a deed. Without a "
"registration system for cars, auto theft would be much easier. With a "
"registration system, the thief has a high burden to sell a stolen car. A "
"slight burden is placed on the property owner, but those burdens produce a "
"much better system of protection for property generally."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12907
msgid ""
"It is similarly special physics that makes formalities important in "
"copyright law. Unlike a carpenter's table, there's nothing in nature that "
"makes it relatively obvious who might own a particular bit of creative "
"property. A recording of Lyle Lovett's latest album can exist in a billion "
"places without anything necessarily linking it back to a particular owner. "
"And like a car, there's no way to buy and sell creative property with "
"confidence unless there is some simple way to authenticate who is the author"
" and what rights he has. Simple transactions are destroyed in a world "
"without formalities. Complex, expensive, <emphasis>lawyer</emphasis> "
"transactions take their place.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12922
msgid ""
"This was the understanding of the problem with the Sonny Bono Act that we "
"tried to demonstrate to the Court. This was the part it didn't "
"<quote>get.</quote> Because we live in a system without formalities, there "
"is no way easily to build upon or use culture from our past. If copyright "
"terms were, as Justice Story said they would be, <quote>short,</quote> then "
"this wouldn't matter much. For fourteen years, under the framers' system, a "
"work would be presumptively controlled. After fourteen years, it would be "
"presumptively uncontrolled."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12932
msgid ""
"But now that copyrights can be just about a century long, the inability to "
"know what is protected and what is not protected becomes a huge and obvious "
"burden on the creative process. If the only way a library can offer an "
"Internet exhibit about the New Deal is to hire a lawyer to clear the rights "
"to every image and sound, then the copyright system is burdening creativity "
"in a way that has never been seen before <emphasis>because there are no "
"formalities</emphasis>."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12941
msgid ""
"The Eldred Act was designed to respond to exactly this problem. If it is "
"worth $1 to you, then register your work and you can get the longer term. "
"Others will know how to contact you and, therefore, how to get your "
"permission if they want to use your work. And you will get the benefit of an"
" extended copyright term."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12948
msgid ""
"If it isn't worth it to you to register to get the benefit of an extended "
"term, then it shouldn't be worth it for the government to defend your "
"monopoly over that work either. The work should pass into the public domain "
"where anyone can copy it, or build archives with it, or create a movie based"
" on it. It should become free if it is not worth $1 to you."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12955
msgid ""
"Some worry about the burden on authors. Won't the burden of registering the "
"work mean that the $1 is really misleading? Isn't the hassle worth more than"
" $1? Isn't that the real problem with registration?"
msgstr ""

#.  PAGE BREAK 260
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12961
msgid ""
"It is. The hassle is terrible. The system that exists now is awful. I "
"completely agree that the Copyright Office has done a terrible job (no doubt"
" because they are terribly funded) in enabling simple and cheap "
"registrations. Any real solution to the problem of formalities must address "
"the real problem of <emphasis>governments</emphasis> standing at the core of"
" any system of formalities. In this book, I offer such a solution. That "
"solution essentially remakes the Copyright Office. For now, assume it was "
"Amazon that ran the registration system. Assume it was one-click "
"registration.  The Eldred Act would propose a simple, one-click registration"
" fifty years after a work was published. Based upon historical data, that "
"system would move up to 98 percent of commercial work, commercial work that "
"no longer had a commercial life, into the public domain within fifty years. "
"What do you think?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12979
msgid ""
"<emphasis role='strong'>When Steve Forbes</emphasis> endorsed the idea, some"
" in Washington began to pay attention. Many people contacted me pointing to "
"representatives who might be willing to introduce the Eldred Act. And I had "
"a few who directly suggested that they might be willing to take the first "
"step."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:12985
msgid "Lofgren, Zoe"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12987
msgid ""
"One representative, Zoe Lofgren of California, went so far as to get the "
"bill drafted. The draft solved any problem with international law. It "
"imposed the simplest requirement upon copyright owners possible. In May "
"2003, it looked as if the bill would be introduced. On May 16, I posted on "
"the Eldred Act blog, <quote>we are close.</quote> There was a general "
"reaction in the blog community that something good might happen here."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:12996
msgid ""
"But at this stage, the lobbyists began to intervene. Jack Valenti and the "
"MPAA general counsel came to the congresswoman's office to give the view of "
"the MPAA. Aided by his lawyer, as Valenti told me, Valenti informed the "
"congresswoman that the MPAA would oppose the Eldred Act. The reasons are "
"embarrassingly thin. More importantly, their thinness shows something clear "
"about what this debate is really about."
msgstr ""

#.  PAGE BREAK 261
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:13004
msgid ""
"The MPAA argued first that Congress had <quote>firmly rejected the central "
"concept in the proposed bill</quote>&mdash;that copyrights be renewed. That "
"was true, but irrelevant, as Congress's <quote>firm rejection</quote> had "
"occurred long before the Internet made subsequent uses much more likely.  "
"Second, they argued that the proposal would harm poor copyright "
"owners&mdash;apparently those who could not afford the $1 fee. Third, they "
"argued that Congress had determined that extending a copyright term would "
"encourage restoration work. Maybe in the case of the small percentage of "
"work covered by copyright law that is still commercially valuable, but again"
" this was irrelevant, as the proposal would not cut off the extended term "
"unless the $1 fee was not paid. Fourth, the MPAA argued that the bill would "
"impose <quote>enormous</quote> costs, since a registration system is not "
"free. True enough, but those costs are certainly less than the costs of "
"clearing the rights for a copyright whose owner is not known. Fifth, they "
"worried about the risks if the copyright to a story underlying a film were "
"to pass into the public domain. But what risk is that? If it is in the "
"public domain, then the film is a valid derivative use."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:13025
msgid ""
"Finally, the MPAA argued that existing law enabled copyright owners to do "
"this if they wanted. But the whole point is that there are thousands of "
"copyright owners who don't even know they have a copyright to give. Whether "
"they are free to give away their copyright or not&mdash;a controversial "
"claim in any case&mdash;unless they know about a copyright, they're not "
"likely to."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:13033
msgid ""
"<emphasis role='strong'>At the beginning</emphasis> of this book, I told two"
" stories about the law reacting to changes in technology. In the one, common"
" sense prevailed.  In the other, common sense was delayed. The difference "
"between the two stories was the power of the opposition&mdash;the power of "
"the side that fought to defend the status quo. In both cases, a new "
"technology threatened old interests. But in only one case did those "
"interest's have the power to protect themselves against this new competitive"
" threat."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:13043
msgid ""
"I used these two cases as a way to frame the war that this book has been "
"about. For here, too, a new technology is forcing the law to react.  And "
"here, too, we should ask, is the law following or resisting common sense? If"
" common sense supports the law, what explains this common sense?"
msgstr ""

#.  PAGE BREAK 262
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:13052
msgid ""
"When the issue is piracy, it is right for the law to back the copyright "
"owners. The commercial piracy that I described is wrong and harmful, and the"
" law should work to eliminate it. When the issue is p2p sharing, it is easy "
"to understand why the law backs the owners still: Much of this sharing is "
"wrong, even if much is harmless. When the issue is copyright terms for the "
"Mickey Mouses of the world, it is possible still to understand why the law "
"favors Hollywood: Most people don't recognize the reasons for limiting "
"copyright terms; it is thus still possible to see good faith within the "
"resistance."
msgstr ""

#. type: Content of: <book><part><chapter><indexterm><primary>
#: freeculture.xml:13062
msgid "Kelly, Kevin"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:13064
msgid ""
"But when the copyright owners oppose a proposal such as the Eldred Act, "
"then, finally, there is an example that lays bare the naked selfinterest "
"driving this war. This act would free an extraordinary range of content that"
" is otherwise unused. It wouldn't interfere with any copyright owner's "
"desire to exercise continued control over his content. It would simply "
"liberate what Kevin Kelly calls the <quote>Dark Content</quote> that fills "
"archives around the world. So when the warriors oppose a change like this, "
"we should ask one simple question:"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:13074
msgid "What does this industry really want?"
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:13077
msgid ""
"With very little effort, the warriors could protect their content. So the "
"effort to block something like the Eldred Act is not really about protecting"
" <emphasis>their</emphasis> content. The effort to block the Eldred Act is "
"an effort to assure that nothing more passes into the public domain. It is "
"another step to assure that the public domain will never compete, that there"
" will be no use of content that is not commercially controlled, and that "
"there will be no commercial use of content that doesn't require "
"<emphasis>their</emphasis> permission first."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:13088
msgid ""
"The opposition to the Eldred Act reveals how extreme the other side is. The "
"most powerful and sexy and well loved of lobbies really has as its aim not "
"the protection of <quote>property</quote> but the rejection of a tradition."
"  Their aim is not simply to protect what is theirs. <emphasis>Their aim is "
"to assure that all there is is what is theirs</emphasis>."
msgstr ""

#.  PAGE BREAK 263
#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:13096
msgid ""
"It is not hard to understand why the warriors take this view. It is not hard"
" to see why it would benefit them if the competition of the public domain "
"tied to the Internet could somehow be quashed. Just as RCA feared the "
"competition of FM, they fear the competition of a public domain connected to"
" a public that now has the means to create with it and to share its own "
"creation."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:13108
msgid ""
"What is hard to understand is why the public takes this view. It is as if "
"the law made airplanes trespassers. The MPAA stands with the Causbys and "
"demands that their remote and useless property rights be respected, so that "
"these remote and forgotten copyright holders might block the progress of "
"others."
msgstr ""

#. type: Content of: <book><part><chapter><para>
#: freeculture.xml:13115
msgid ""
"All this seems to follow easily from this untroubled acceptance of the "
"<quote>property</quote> in intellectual property. Common sense supports it, "
"and so long as it does, the assaults will rain down upon the technologies of"
" the Internet. The consequence will be an increasing <quote>permission "
"society.</quote> The past can be cultivated only if you can identify the "
"owner and gain permission to build upon his work. The future will be "
"controlled by this dead (and often unfindable) hand of the past."
msgstr ""

#. type: Content of: <book><chapter><title>
#: freeculture.xml:13127
msgid "CONCLUSION"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13128
msgid "Africa, medications for HIV patients in"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13129
msgid "AIDS medications"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13130
msgid "antiretroviral drugs"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13131
msgid "developing countries, foreign patent costs in"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13132 freeculture.xml:13645
msgid "drugs"
msgstr ""

#. type: Content of: <book><chapter><indexterm><secondary>
#: freeculture.xml:13132 freeculture.xml:13645
msgid "pharmaceutical"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13133
msgid "HIV/AIDS therapies"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13135
msgid ""
"<emphasis role='strong'>There are more</emphasis> than 35 million people "
"with the AIDS virus worldwide. Twenty-five million of them live in sub-"
"Saharan Africa.  Seventeen million have already died. Seventeen million "
"Africans is proportional percentage-wise to seven million Americans. More "
"importantly, it is seventeen million Africans."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13142
msgid ""
"There is no cure for AIDS, but there are drugs to slow its progression.  "
"These antiretroviral therapies are still experimental, but they have already"
" had a dramatic effect. In the United States, AIDS patients who regularly "
"take a cocktail of these drugs increase their life expectancy by ten to "
"twenty years. For some, the drugs make the disease almost invisible."
msgstr ""

#.  f1.
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:13157
msgid ""
"Commission on Intellectual Property Rights, <quote>Final Report: Integrating"
" Intellectual Property Rights and Development Policy</quote> (London, 2002),"
" available at <ulink url=\"http://free-culture.cc/notes/\">link #55</ulink>."
" According to a World Health Organization press release issued 9 July 2002, "
"only 230,000 of the 6 million who need drugs in the developing world receive"
" them&mdash;and half of them are in Brazil."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13150
msgid ""
"These drugs are expensive. When they were first introduced in the United "
"States, they cost between $10,000 and $15,000 per person per year. Today, "
"some cost $25,000 per year. At these prices, of course, no African nation "
"can afford the drugs for the vast majority of its population: $15,000 is "
"thirty times the per capita gross national product of Zimbabwe. At these "
"prices, the drugs are totally unavailable.<placeholder type=\"footnote\" "
"id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><indexterm><secondary>
#: freeculture.xml:13166 freeculture.xml:13647
msgid "on pharmaceuticals"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13167
msgid "pharmaceutical patents"
msgstr ""

#.  PAGE BREAK 265
#. type: Content of: <book><chapter><para>
#: freeculture.xml:13170
msgid ""
"These prices are not high because the ingredients of the drugs are "
"expensive. These prices are high because the drugs are protected by patents."
" The drug companies that produced these life-saving mixes enjoy at least a "
"twenty-year monopoly for their inventions. They use that monopoly power to "
"extract the most they can from the market. That power is in turn used to "
"keep the prices high."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13178
msgid ""
"There are many who are skeptical of patents, especially drug patents. I am "
"not. Indeed, of all the areas of research that might be supported by "
"patents, drug research is, in my view, the clearest case where patents are "
"needed. The patent gives the drug company some assurance that if it is "
"successful in inventing a new drug to treat a disease, it will be able to "
"earn back its investment and more. This is socially an extremely valuable "
"incentive. I am the last person who would argue that the law should abolish "
"it, at least without other changes."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13189
msgid ""
"But it is one thing to support patents, even drug patents. It is another "
"thing to determine how best to deal with a crisis. And as African leaders "
"began to recognize the devastation that AIDS was bringing, they started "
"looking for ways to import HIV treatments at costs significantly below the "
"market price."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13195
msgid "international law"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13196
msgid "parallel importation"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13197
msgid "South Africa, Republic of, pharmaceutical imports by"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13210 freeculture.xml:13703
msgid "Braithwaite, John"
msgstr ""

#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:13208
msgid ""
"See Peter Drahos with John Braithwaite, <citetitle>Information Feudalism: "
"Who Owns the Knowledge Economy?</citetitle> (New York: The New Press, 2003),"
" 37.  <placeholder type=\"indexterm\" id=\"0\"/> <placeholder "
"type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13199
msgid ""
"In 1997, South Africa tried one tack. It passed a law to allow the "
"importation of patented medicines that had been produced or sold in another "
"nation's market with the consent of the patent owner. For example, if the "
"drug was sold in India, it could be imported into Africa from India. This is"
" called <quote>parallel importation,</quote> and it is generally permitted "
"under international trade law and is specifically permitted within the "
"European Union.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13214
msgid "United States Trade Representative (USTR)"
msgstr ""

#.  f3.
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:13222
msgid ""
"International Intellectual Property Institute (IIPI), <citetitle>Patent "
"Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a "
"Report Prepared for the World Intellectual Property Organization</citetitle>"
" (Washington, D.C., 2000), 14, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #56</ulink>. For a firsthand account of the "
"struggle over South Africa, see Hearing Before the Subcommittee on Criminal "
"Justice, Drug Policy, and Human Resources, House Committee on Government "
"Reform, H. Rep., 1st sess., Ser. No. 106-126 (22 July 1999), 150&ndash;57 "
"(statement of James Love)."
msgstr ""

#.  f4.
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:13249
msgid ""
"International Intellectual Property Institute (IIPI), <citetitle>Patent "
"Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a "
"Report Prepared for the World Intellectual Property Organization</citetitle>"
" (Washington, D.C., 2000), 15."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13216
msgid ""
"However, the United States government opposed the bill. Indeed, more than "
"opposed. As the International Intellectual Property Association "
"characterized it, <quote>The U.S. government pressured South Africa &hellip;"
" not to permit compulsory licensing or parallel imports.</quote><placeholder"
" type=\"footnote\" id=\"0\"/> Through the Office of the United States Trade "
"Representative, the government asked South Africa to change the "
"law&mdash;and to add pressure to that request, in 1998, the USTR listed "
"South Africa for possible trade sanctions.  That same year, more than forty "
"pharmaceutical companies began proceedings in the South African courts to "
"challenge the government's actions. The United States was then joined by "
"other governments from the EU. Their claim, and the claim of the "
"pharmaceutical companies, was that South Africa was violating its "
"obligations under international law by discriminating against a particular "
"kind of patent&mdash; pharmaceutical patents. The demand of these "
"governments, with the United States in the lead, was that South Africa "
"respect these patents as it respects any other patent, regardless of any "
"effect on the treatment of AIDS within South Africa.<placeholder "
"type=\"footnote\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13256
msgid ""
"We should place the intervention by the United States in context.  No doubt "
"patents are not the most important reason that Africans don't have access to"
" drugs. Poverty and the total absence of an effective health care "
"infrastructure matter more. But whether patents are the most important "
"reason or not, the price of drugs has an effect on their demand, and patents"
" affect price. And so, whether massive or marginal, there was an effect from"
" our government's intervention to stop the flow of medications into Africa."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13266
msgid ""
"By stopping the flow of HIV treatment into Africa, the United States "
"government was not saving drugs for United States citizens.  This is not "
"like wheat (if they eat it, we can't); instead, the flow that the United "
"States intervened to stop was, in effect, a flow of knowledge: information "
"about how to take chemicals that exist within Africa, and turn those "
"chemicals into drugs that would save 15 to 30 million lives."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13274
msgid ""
"Nor was the intervention by the United States going to protect the profits "
"of United States drug companies&mdash;at least, not substantially. It was "
"not as if these countries were in the position to buy the drugs for the "
"prices the drug companies were charging. Again, the Africans are wildly too "
"poor to afford these drugs at the offered prices. Stopping the parallel "
"import of these drugs would not substantially increase the sales by U.S. "
"companies."
msgstr ""

#.  f5.
#.  PAGE BREAK 333
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:13289
msgid ""
"See Sabin Russell, <quote>New Crusade to Lower AIDS Drug Costs: Africa's "
"Needs at Odds with Firms' Profit Motive,</quote> <citetitle>San Francisco "
"Chronicle</citetitle>, 24 May 1999, A1, available at <ulink url=\"http"
"://free-culture.cc/notes/\">link #57</ulink> (<quote>compulsory licenses and"
" gray markets pose a threat to the entire system of intellectual property "
"protection</quote>); Robert Weissman, <quote>AIDS and Developing Countries: "
"Democratizing Access to Essential Medicines,</quote> <citetitle>Foreign "
"Policy in Focus</citetitle> 4:23 (August 1999), available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #58</ulink> (describing U.S. "
"policy); John A. Harrelson, <quote>TRIPS, Pharmaceutical Patents, and the "
"HIV/AIDS Crisis: Finding the Proper Balance Between Intellectual Property "
"Rights and Compassion, a Synopsis,</quote> <citetitle>Widener Law Symposium "
"Journal</citetitle> (Spring 2001): 175."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13283
msgid ""
"Instead, the argument in favor of restricting this flow of information, "
"which was needed to save the lives of millions, was an argument about the "
"sanctity of property.<placeholder type=\"footnote\" id=\"0\"/> It was "
"because <quote>intellectual property</quote> would be violated that these "
"drugs should not flow into Africa. It was a principle about the importance "
"of <quote>intellectual property</quote> that led these government actors to "
"intervene against the South African response to AIDS."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13311
msgid ""
"Now just step back for a moment. There will be a time thirty years from now "
"when our children look back at us and ask, how could we have let this "
"happen? How could we allow a policy to be pursued whose direct cost would be"
" to speed the death of 15 to 30 million Africans, and whose only real "
"benefit would be to uphold the <quote>sanctity</quote> of an idea? What "
"possible justification could there ever be for a policy that results in so "
"many deaths? What exactly is the insanity that would allow so many to die "
"for such an abstraction?"
msgstr ""

#. type: Content of: <book><chapter><indexterm><secondary>
#: freeculture.xml:13320
msgid "in pharmaceutical industry"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13322
msgid ""
"Some blame the drug companies. I don't. They are corporations.  Their "
"managers are ordered by law to make money for the corporation.  They push a "
"certain patent policy not because of ideals, but because it is the policy "
"that makes them the most money. And it only makes them the most money "
"because of a certain corruption within our political system&mdash; a "
"corruption the drug companies are certainly not responsible for."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13330
msgid ""
"The corruption is our own politicians' failure of integrity. For the drug "
"companies would love&mdash;they say, and I believe them&mdash;to sell their "
"drugs as cheaply as they can to countries in Africa and elsewhere.  There "
"are issues they'd have to resolve to make sure the drugs didn't get back "
"into the United States, but those are mere problems of technology.  They "
"could be overcome."
msgstr ""

#. type: Content of: <book><chapter><indexterm><secondary>
#: freeculture.xml:13337
msgid "of drug patents"
msgstr ""

#.  PAGE BREAK 268
#. type: Content of: <book><chapter><para>
#: freeculture.xml:13339
msgid ""
"A different problem, however, could not be overcome. This is the fear of the"
" grandstanding politician who would call the presidents of the drug "
"companies before a Senate or House hearing, and ask, <quote>How is it you "
"can sell this HIV drug in Africa for only $1 a pill, but the same drug would"
" cost an American $1,500?</quote> Because there is no <quote>sound "
"bite</quote> answer to that question, its effect would be to induce "
"regulation of prices in America. The drug companies thus avoid this spiral "
"by avoiding the first step. They reinforce the idea that property should be "
"sacred. They adopt a rational strategy in an irrational context, with the "
"unintended consequence that perhaps millions die. And that rational strategy"
" thus becomes framed in terms of this ideal&mdash;the sanctity of an idea "
"called <quote>intellectual property.</quote>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13361
msgid ""
"So when the common sense of your child confronts you, what will you say? "
"When the common sense of a generation finally revolts against what we have "
"done, how will we justify what we have done? What is the argument?"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13367
msgid ""
"A sensible patent policy could endorse and strongly support the patent "
"system without having to reach everyone everywhere in exactly the same way. "
"Just as a sensible copyright policy could endorse and strongly support a "
"copyright system without having to regulate the spread of culture perfectly "
"and forever, a sensible patent policy could endorse and strongly support a "
"patent system without having to block the spread of drugs to a country not "
"rich enough to afford market prices in any case. A sensible policy, in other"
" words, could be a balanced policy. For most of our history, both copyright "
"and patent policies were balanced in just this sense."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13382
msgid ""
"But we as a culture have lost this sense of balance. We have lost the "
"critical eye that helps us see the difference between truth and extremism.  "
"A certain property fundamentalism, having no connection to our tradition, "
"now reigns in this culture&mdash;bizarrely, and with consequences more grave"
" to the spread of ideas and culture than almost any other single policy "
"decision that we as a democracy will make."
msgstr ""

#.  PAGE BREAK 269
#. type: Content of: <book><chapter><para>
#: freeculture.xml:13391
msgid ""
"<emphasis role='strong'>A simple idea</emphasis> blinds us, and under the "
"cover of darkness, much happens that most of us would reject if any of us "
"looked. So uncritically do we accept the idea of property in ideas that we "
"don't even notice how monstrous it is to deny ideas to a people who are "
"dying without them. So uncritically do we accept the idea of property in "
"culture that we don't even question when the control of that property "
"removes our ability, as a people, to develop our culture democratically. "
"Blindness becomes our common sense. And the challenge for anyone who would "
"reclaim the right to cultivate our culture is to find a way to make this "
"common sense open its eyes."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13405
msgid ""
"So far, common sense sleeps. There is no revolt. Common sense does not yet "
"see what there could be to revolt about. The extremism that now dominates "
"this debate fits with ideas that seem natural, and that fit is reinforced by"
" the RCAs of our day. They wage a frantic war to fight "
"<quote>piracy,</quote> and devastate a culture for creativity. They defend "
"the idea of <quote>creative property,</quote> while transforming real "
"creators into modern-day sharecroppers. They are insulted by the idea that "
"rights should be balanced, even though each of the major players in this "
"content war was itself a beneficiary of a more balanced ideal. The hypocrisy"
" reeks. Yet in a city like Washington, hypocrisy is not even noticed. "
"Powerful lobbies, complex issues, and MTV attention spans produce the "
"<quote>perfect storm</quote> for free culture."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:13418 freeculture.xml:14188
msgid "academic journals"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13419 freeculture.xml:13432
msgid "biomedical research"
msgstr ""

#. type: Content of: <book><chapter><indexterm><secondary>
#: freeculture.xml:13420 freeculture.xml:13590
msgid "international organization on issues of"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:13422 freeculture.xml:13539 freeculture.xml:14107
msgid "IBM"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:13423 freeculture.xml:14254
msgid "PLoS (Public Library of Science)"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:13424 freeculture.xml:14255
msgid "Public Library of Science (PLoS)"
msgstr ""

#. type: Content of: <book><chapter><indexterm><secondary>
#: freeculture.xml:13425
msgid "public projects in"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13426
msgid "single nucleotied polymorphisms (SNPs)"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13427
msgid "Wellcome Trust"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13428 freeculture.xml:13591
msgid "World Intellectual Property Organization (WIPO)"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13429
msgid "World Wide Web"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13430
msgid "Global Positioning System"
msgstr ""

#.  f6.
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:13437
msgid ""
"Jonathan Krim, <quote>The Quiet War over Open-Source,</quote> "
"<citetitle>Washington Post</citetitle>, August 2003, E1, available at <ulink"
" url=\"http://free-culture.cc/notes/\">link #59</ulink>; William New, "
"<quote>Global Group's Shift on `Open Source' Meeting Spurs Stir,</quote> "
"<citetitle>National Journal's Technology Daily</citetitle>, 19 August 2003, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #60</ulink>; "
"William New, <quote>U.S. Official Opposes `Open Source' Talks at "
"WIPO,</quote> <citetitle>National Journal's Technology Daily</citetitle>, 19"
" August 2003, available at <ulink url=\"http://free-culture.cc/notes/\">link"
" #61</ulink>."
msgstr ""

#.  PAGE BREAK 270
#. type: Content of: <book><chapter><para>
#: freeculture.xml:13434
msgid ""
"<emphasis role='strong'>In August 2003</emphasis>, a fight broke out in the "
"United States about a decision by the World Intellectual Property "
"Organization to cancel a meeting.<placeholder type=\"footnote\" id=\"0\"/> "
"At the request of a wide range of interests, WIPO had decided to hold a "
"meeting to discuss <quote>open and collaborative projects to create public "
"goods.</quote> These are projects that have been successful in producing "
"public goods without relying exclusively upon a proprietary use of "
"intellectual property. Examples include the Internet and the World Wide Web,"
" both of which were developed on the basis of protocols in the public "
"domain. It included an emerging trend to support open academic journals, "
"including the Public Library of Science project that I describe in chapter "
"<xref xrefstyle=\"select: labelnumber\" linkend=\"c-afterword\"/>.  It "
"included a project to develop single nucleotide polymorphisms (SNPs), which "
"are thought to have great significance in biomedical research. (That "
"nonprofit project comprised a consortium of the Wellcome Trust and "
"pharmaceutical and technological companies, including Amersham Biosciences, "
"AstraZeneca, Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche, Glaxo-"
"SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It included the "
"Global Positioning System, which Ronald Reagan set free in the early 1980s. "
"And it included <quote>open source and free software.</quote>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13470
msgid ""
"The aim of the meeting was to consider this wide range of projects from one "
"common perspective: that none of these projects relied upon intellectual "
"property extremism. Instead, in all of them, intellectual property was "
"balanced by agreements to keep access open or to impose limitations on the "
"way in which proprietary claims might be used."
msgstr ""

#. type: Content of: <book><chapter><indexterm><secondary>
#: freeculture.xml:13476
msgid "in international debate on intellectual property"
msgstr ""

#.  f7.
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:13479
msgid ""
"I should disclose that I was one of the people who asked WIPO for the "
"meeting."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13478
msgid ""
"From the perspective of this book, then, the conference was "
"ideal.<placeholder type=\"footnote\" id=\"0\"/> The projects within its "
"scope included both commercial and noncommercial work. They primarily "
"involved science, but from many perspectives.  And WIPO was an ideal venue "
"for this discussion, since WIPO is the preeminent international body dealing"
" with intellectual property issues."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13488 freeculture.xml:13644
msgid "World Summit on the Information Society (WSIS)"
msgstr ""

#.  PAGE BREAK 271
#. type: Content of: <book><chapter><para>
#: freeculture.xml:13490
msgid ""
"Indeed, I was once publicly scolded for not recognizing this fact about "
"WIPO. In February 2003, I delivered a keynote address to a preparatory "
"conference for the World Summit on the Information Society (WSIS). At a "
"press conference before the address, I was asked what I would say. I "
"responded that I would be talking a little about the importance of balance "
"in intellectual property for the development of an information society. The "
"moderator for the event then promptly interrupted to inform me and the "
"assembled reporters that no question about intellectual property would be "
"discussed by WSIS, since those questions were the exclusive domain of WIPO. "
"In the talk that I had prepared, I had actually made the issue of "
"intellectual property relatively minor. But after this astonishing "
"statement, I made intellectual property the sole focus of my talk. There was"
" no way to talk about an <quote>Information Society</quote> unless one also "
"talked about the range of information and culture that would be free. My "
"talk did not make my immoderate moderator very happy. And she was no doubt "
"correct that the scope of intellectual property protections was ordinarily "
"the stuff of WIPO. But in my view, there couldn't be too much of a "
"conversation about how much intellectual property is needed, since in my "
"view, the very idea of balance in intellectual property had been lost."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13514
msgid ""
"So whether or not WSIS can discuss balance in intellectual property, I had "
"thought it was taken for granted that WIPO could and should. And thus the "
"meeting about <quote>open and collaborative projects to create public "
"goods</quote> seemed perfectly appropriate within the WIPO agenda."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:13523 freeculture.xml:15253
msgid "Apple Corporation"
msgstr ""

#. type: Content of: <book><chapter><indexterm><secondary>
#: freeculture.xml:13524
msgid "on free software"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13526
msgid ""
"But there is one project within that list that is highly controversial, at "
"least among lobbyists. That project is <quote>open source and free "
"software.</quote> Microsoft in particular is wary of discussion of the "
"subject. From its perspective, a conference to discuss open source and free "
"software would be like a conference to discuss Apple's operating system. "
"Both open source and free software compete with Microsoft's software. And "
"internationally, many governments have begun to explore requirements that "
"they use open source or free software, rather than <quote>proprietary "
"software,</quote> for their own internal uses."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13536
msgid "<quote>copyleft</quote> licenses"
msgstr ""

#.  f8.
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:13552
msgid ""
"Microsoft's position about free and open source software is more "
"sophisticated.  As it has repeatedly asserted, it has no problem with "
"<quote>open source</quote> software or software in the public domain. "
"Microsoft's principal opposition is to <quote>free software</quote> licensed"
" under a <quote>copyleft</quote> license, meaning a license that requires "
"the licensee to adopt the same terms on any derivative work. See Bradford L."
" Smith, <quote>The Future of Software: Enabling the Marketplace to "
"Decide,</quote> <citetitle>Government Policy Toward Open Source "
"Software</citetitle> (Washington, D.C.: AEI-Brookings Joint Center for "
"Regulatory Studies, American Enterprise Institute for Public Policy "
"Research, 2002), 69, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #62</ulink>. See also Craig Mundie, Microsoft "
"senior vice president, <citetitle>The Commercial Software Model</citetitle>,"
" discussion at New York University Stern School of Business (3 May 2001), "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #63</ulink>."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13541
msgid ""
"I don't mean to enter that debate here. It is important only to make clear "
"that the distinction is not between commercial and noncommercial software. "
"There are many important companies that depend fundamentally upon open "
"source and free software, IBM being the most prominent. IBM is increasingly "
"shifting its focus to the GNU/Linux operating system, the most famous bit of"
" <quote>free software</quote>&mdash;and IBM is emphatically a commercial "
"entity. Thus, to support <quote>open source and free software</quote> is not"
" to oppose commercial entities. It is, instead, to support a mode of "
"software development that is different from Microsoft's.<placeholder "
"type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13570
msgid "General Public License (GPL)"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13571
msgid "GPL (General Public License)"
msgstr ""

#.  PAGE BREAK 272
#. type: Content of: <book><chapter><para>
#: freeculture.xml:13573
msgid ""
"More important for our purposes, to support <quote>open source and free "
"software</quote> is not to oppose copyright. <quote>Open source and free "
"software</quote> is not software in the public domain. Instead, like "
"Microsoft's software, the copyright owners of free and open source software "
"insist quite strongly that the terms of their software license be respected "
"by adopters of free and open source software. The terms of that license are "
"no doubt different from the terms of a proprietary software license.  Free "
"software licensed under the General Public License (GPL), for example, "
"requires that the source code for the software be made available by anyone "
"who modifies and redistributes the software. But that requirement is "
"effective only if copyright governs software. If copyright did not govern "
"software, then free software could not impose the same kind of requirements "
"on its adopters. It thus depends upon copyright law just as Microsoft does."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13592
msgid "Krim, Jonathan"
msgstr ""

#. type: Content of: <book><chapter><indexterm><secondary>
#: freeculture.xml:13593
msgid "WIPO meeting opposed by"
msgstr ""

#.  f9.
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:13603
msgid ""
"Krim, <quote>The Quiet War over Open-Source,</quote> available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #64</ulink>."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13595
msgid ""
"It is therefore understandable that as a proprietary software developer, "
"Microsoft would oppose this WIPO meeting, and understandable that it would "
"use its lobbyists to get the United States government to oppose it, as well."
" And indeed, that is just what was reported to have happened. According to "
"Jonathan Krim of the <citetitle>Washington Post</citetitle>, Microsoft's "
"lobbyists succeeded in getting the United States government to veto the "
"meeting.<placeholder type=\"footnote\" id=\"0\"/> And without U.S. backing, "
"the meeting was canceled."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13609
msgid ""
"I don't blame Microsoft for doing what it can to advance its own interests, "
"consistent with the law. And lobbying governments is plainly consistent with"
" the law. There was nothing surprising about its lobbying here, and nothing "
"terribly surprising about the most powerful software producer in the United "
"States having succeeded in its lobbying efforts."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13617 freeculture.xml:13675
msgid "Boland, Lois"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13619
msgid ""
"What was surprising was the United States government's reason for opposing "
"the meeting. Again, as reported by Krim, Lois Boland, acting director of "
"international relations for the U.S. Patent and Trademark Office, explained "
"that <quote>open-source software runs counter to the mission of WIPO, which "
"is to promote intellectual-property rights.</quote> She is quoted as saying,"
" <quote>To hold a meeting which has as its purpose to disclaim or waive such"
" rights seems to us to be contrary to the goals of WIPO.</quote>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13630
msgid "These statements are astonishing on a number of levels."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13635
msgid ""
"First, they are just flat wrong. As I described, most open source and free "
"software relies fundamentally upon the intellectual property right called "
"<quote>copyright</quote>.  Without it, restrictions imposed by those "
"licenses wouldn't work. Thus, to say it <quote>runs counter</quote> to the "
"mission of promoting intellectual property rights reveals an extraordinary "
"gap in understanding&mdash;the sort of mistake that is excusable in a first-"
"year law student, but an embarrassment from a high government official "
"dealing with intellectual property issues."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13646
msgid "generic drugs"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13649
msgid ""
"Second, who ever said that WIPO's exclusive aim was to "
"<quote>promote</quote> intellectual property maximally? As I had been "
"scolded at the preparatory conference of WSIS, WIPO is to consider not only "
"how best to protect intellectual property, but also what the best balance of"
" intellectual property is. As every economist and lawyer knows, the hard "
"question in intellectual property law is to find that balance. But that "
"there should be limits is, I had thought, uncontested. One wants to ask Ms. "
"Boland, are generic drugs (drugs based on drugs whose patent has expired) "
"contrary to the WIPO mission? Does the public domain weaken intellectual "
"property? Would it have been better if the protocols of the Internet had "
"been patented?"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13663
msgid ""
"Third, even if one believed that the purpose of WIPO was to maximize "
"intellectual property rights, in our tradition, intellectual property rights"
" are held by individuals and corporations. They get to decide what to do "
"with those rights because, again, they are <emphasis>their</emphasis> "
"rights. If they want to <quote>waive</quote> or <quote>disclaim</quote> "
"their rights, that is, within our tradition, totally appropriate. When Bill "
"Gates gives away more than $20 billion to do good in the world, that is not "
"inconsistent with the objectives of the property system. That is, on the "
"contrary, just what a property system is supposed to be about: giving "
"individuals the right to decide what to do with <emphasis>their</emphasis> "
"property."
msgstr ""

#.  PAGE BREAK 274
#. type: Content of: <book><chapter><para>
#: freeculture.xml:13677
msgid ""
"When Ms. Boland says that there is something wrong with a meeting "
"<quote>which has as its purpose to disclaim or waive such rights,</quote> "
"she's saying that WIPO has an interest in interfering with the choices of "
"the individuals who own intellectual property rights. That somehow, WIPO's "
"objective should be to stop an individual from <quote>waiving</quote> or "
"<quote>disclaiming</quote> an intellectual property right. That the interest"
" of WIPO is not just that intellectual property rights be maximized, but "
"that they also should be exercised in the most extreme and restrictive way "
"possible."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13688
msgid "feudal system"
msgstr ""

#. type: Content of: <book><chapter><indexterm><secondary>
#: freeculture.xml:13689
msgid "feudal system of"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13691
msgid ""
"There is a history of just such a property system that is well known in the "
"Anglo-American tradition. It is called <quote>feudalism.</quote> Under "
"feudalism, not only was property held by a relatively small number of "
"individuals and entities. And not only were the rights that ran with that "
"property powerful and extensive. But the feudal system had a strong interest"
" in assuring that property holders within that system not weaken feudalism "
"by liberating people or property within their control to the free market. "
"Feudalism depended upon maximum control and concentration. It fought any "
"freedom that might interfere with that control."
msgstr ""

#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:13708
msgid ""
"See Drahos with Braithwaite, <citetitle>Information Feudalism</citetitle>, "
"210&ndash;20.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13705
msgid ""
"As Peter Drahos and John Braithwaite relate, this is precisely the choice we"
" are now making about intellectual property.<placeholder type=\"footnote\" "
"id=\"0\"/> We will have an information society. That much is certain. Our "
"only choice now is whether that information society will be "
"<emphasis>free</emphasis> or <emphasis>feudal</emphasis>. The trend is "
"toward the feudal."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13719
msgid ""
"When this battle broke, I blogged it. A spirited debate within the comment "
"section ensued. Ms. Boland had a number of supporters who tried to show why "
"her comments made sense. But there was one comment that was particularly "
"depressing for me. An anonymous poster wrote,"
msgstr ""

#.  PAGE BREAK 275
#. type: Content of: <book><chapter><blockquote><para>
#: freeculture.xml:13728
msgid ""
"George, you misunderstand Lessig: He's only talking about the world as it "
"should be (<quote>the goal of WIPO, and the goal of any government, should "
"be to promote the right balance of intellectual property rights, not simply "
"to promote intellectual property rights</quote>), not as it is. If we were "
"talking about the world as it is, then of course Boland didn't say anything "
"wrong. But in the world as Lessig would have it, then of course she did. "
"Always pay attention to the distinction between Lessig's world and ours."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13740
msgid ""
"I missed the irony the first time I read it. I read it quickly and thought "
"the poster was supporting the idea that seeking balance was what our "
"government should be doing. (Of course, my criticism of Ms.  Boland was not "
"about whether she was seeking balance or not; my criticism was that her "
"comments betrayed a first-year law student's mistake. I have no illusion "
"about the extremism of our government, whether Republican or Democrat. My "
"only illusion apparently is about whether our government should speak the "
"truth or not.)"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13751
msgid ""
"Obviously, however, the poster was not supporting that idea.  Instead, the "
"poster was ridiculing the very idea that in the real world, the "
"<quote>goal</quote> of a government should be <quote>to promote the right "
"balance</quote> of intellectual property. That was obviously silly to him. "
"And it obviously betrayed, he believed, my own silly utopianism. "
"<quote>Typical for an academic,</quote> the poster might well have "
"continued."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13759
msgid ""
"I understand criticism of academic utopianism. I think utopianism is silly, "
"too, and I'd be the first to poke fun at the absurdly unrealistic ideals of "
"academics throughout history (and not just in our own country's history)."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13765
msgid ""
"But when it has become silly to suppose that the role of our government "
"should be to <quote>seek balance,</quote> then count me with the silly, for "
"that means that this has become quite serious indeed. If it should be "
"obvious to everyone that the government does not seek balance, that the "
"government is simply the tool of the most powerful lobbyists, that the idea "
"of holding the government to a different standard is absurd, that the idea "
"of demanding of the government that it speak truth and not lies is just "
"na&iuml;ve, then who have we, the most powerful democracy in the world, "
"become?"
msgstr ""

#.  PAGE BREAK 276
#. type: Content of: <book><chapter><para>
#: freeculture.xml:13776
msgid ""
"It might be crazy to expect a high government official to speak the truth. "
"It might be crazy to believe that government policy will be something more "
"than the handmaiden of the most powerful interests.  It might be crazy to "
"argue that we should preserve a tradition that has been part of our "
"tradition for most of our history&mdash;free culture."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13784
msgid "If this is crazy, then let there be more crazies. Soon."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13788
msgid "Turner, Ted"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13790
msgid ""
"<emphasis role='strong'>There are moments</emphasis> of hope in this "
"struggle. And moments that surprise. When the FCC was considering relaxing "
"ownership rules, which would thereby further increase the concentration in "
"media ownership, an extraordinary bipartisan coalition formed to fight this "
"change. For perhaps the first time in history, interests as diverse as the "
"NRA, the ACLU, Moveon.org, William Safire, Ted Turner, and CodePink Women "
"for Peace organized to oppose this change in FCC policy. An astonishing "
"700,000 letters were sent to the FCC, demanding more hearings and a "
"different result."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13801
msgid ""
"This activism did not stop the FCC, but soon after, a broad coalition in the"
" Senate voted to reverse the FCC decision. The hostile hearings leading up "
"to that vote revealed just how powerful this movement had become. There was "
"no substantial support for the FCC's decision, and there was broad and "
"sustained support for fighting further concentration in the media."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13809
msgid ""
"But even this movement misses an important piece of the puzzle.  Largeness "
"as such is not bad. Freedom is not threatened just because some become very "
"rich, or because there are only a handful of big players.  The poor quality "
"of Big Macs or Quarter Pounders does not mean that you can't get a good "
"hamburger from somewhere else."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13816
msgid ""
"The danger in media concentration comes not from the concentration, but "
"instead from the feudalism that this concentration, tied to the change in "
"copyright, produces. It is not just that there are a few powerful companies "
"that control an ever expanding slice of the media. It is that this "
"concentration can call upon an equally bloated range of "
"rights&mdash;property rights of a historically extreme form&mdash;that makes"
" their bigness bad."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13826
msgid ""
"It is therefore significant that so many would rally to demand competition "
"and increased diversity. Still, if the rally is understood as being about "
"bigness alone, it is not terribly surprising. We Americans have a long "
"history of fighting <quote>big,</quote> wisely or not. That we could be "
"motivated to fight <quote>big</quote> again is not something new."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13833
msgid ""
"It would be something new, and something very important, if an equal number "
"could be rallied to fight the increasing extremism built within the idea of "
"<quote>intellectual property.</quote> Not because balance is alien to our "
"tradition; indeed, as I've argued, balance is our tradition. But because the"
" muscle to think critically about the scope of anything called "
"<quote>property</quote> is not well exercised within this tradition anymore."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13841
msgid ""
"If we were Achilles, this would be our heel. This would be the place of our "
"tragedy."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13844
msgid "Dylan, Bob"
msgstr ""

#.  f11.
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:13850
msgid ""
"John Borland, <quote>RIAA Sues 261 File Swappers,</quote> CNET News.com, "
"September 2003, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #65</ulink>; Paul R. La Monica, <quote>Music "
"Industry Sues Swappers,</quote> CNN/Money, 8 September 2003, available at "
"<ulink url=\"http://free-culture.cc/notes/\">link #66</ulink>; Soni Sangha "
"and Phyllis Furman with Robert Gearty, <quote>Sued for a Song, N.Y.C. 12-Yr-"
"Old Among 261 Cited as Sharers,</quote> <citetitle>New York Daily "
"News</citetitle>, 9 September 2003, 3; Frank Ahrens, <quote>RIAA's Lawsuits "
"Meet Surprised Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. "
"Among Defendants,</quote> <citetitle>Washington Post</citetitle>, 10 "
"September 2003, E1; Katie Dean, <quote>Schoolgirl Settles with RIAA,</quote>"
" <citetitle>Wired News</citetitle>, 10 September 2003, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #67</ulink>."
msgstr ""

#.  f12.
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:13868
msgid ""
"Jon Wiederhorn, <quote>Eminem Gets Sued &hellip; by a Little Old "
"Lady,</quote> mtv.com, 17 September 2003, available at <ulink url=\"http"
"://free-culture.cc/notes/\">link #68</ulink>."
msgstr ""

#.  f13.
#.  PAGE BREAK 334
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:13875
msgid ""
"Kenji Hall, Associated Press, <quote>Japanese Book May Be Inspiration for "
"Dylan Songs,</quote> Kansascity.com, 9 July 2003, available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #69</ulink>."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13846
msgid ""
"<emphasis role='strong'>As I write</emphasis> these final words, the news is"
" filled with stories about the RIAA lawsuits against almost three hundred "
"individuals.<placeholder type=\"footnote\" id=\"0\"/> Eminem has just been "
"sued for <quote>sampling</quote> someone else's music.<placeholder "
"type=\"footnote\" id=\"1\"/> The story about Bob Dylan "
"<quote>stealing</quote> from a Japanese author has just finished making the "
"rounds.<placeholder type=\"footnote\" id=\"2\"/> An insider from "
"Hollywood&mdash;who insists he must remain anonymous&mdash;reports <quote>an"
" amazing conversation with these studio guys. They've got extraordinary "
"[old] content that they'd love to use but can't because they can't begin to "
"clear the rights. They've got scores of kids who could do amazing things "
"with the content, but it would take scores of lawyers to clean it "
"first.</quote> Congressmen are talking about deputizing computer viruses to "
"bring down computers thought to violate the law. Universities are "
"threatening expulsion for kids who use a computer to share content."
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13892
msgid "BBC"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13893
msgid "Brazil, free culture in"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:13894 freeculture.xml:14285
msgid "Creative Commons"
msgstr ""

#. type: Content of: <book><chapter><indexterm><primary>
#: freeculture.xml:13895
msgid "Gil, Gilberto"
msgstr ""

#. type: Content of: <book><chapter><indexterm><secondary>
#: freeculture.xml:13896
msgid "public creative archive in"
msgstr ""

#.  f14.
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:13901
msgid ""
"<quote>BBC Plans to Open Up Its Archive to the Public,</quote> BBC press "
"release, 24 August 2003, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #70</ulink>."
msgstr ""

#.  f15.
#. type: Content of: <book><chapter><para><footnote><para>
#: freeculture.xml:13910
msgid ""
"<quote>Creative Commons and Brazil,</quote> Creative Commons Weblog, 6 "
"August 2003, available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#71</ulink>."
msgstr ""

#.  PAGE BREAK 278
#. type: Content of: <book><chapter><para>
#: freeculture.xml:13898
msgid ""
"Yet on the other side of the Atlantic, the BBC has just announced that it "
"will build a <quote>Creative Archive,</quote> from which British citizens "
"can download BBC content, and rip, mix, and burn it.<placeholder "
"type=\"footnote\" id=\"0\"/> And in Brazil, the culture minister, Gilberto "
"Gil, himself a folk hero of Brazilian music, has joined with Creative "
"Commons to release content and free licenses in that Latin American "
"country.<placeholder type=\"footnote\" id=\"1\"/> I've told a dark story. "
"The truth is more mixed. A technology has given us a new freedom. Slowly, "
"some begin to understand that this freedom need not mean anarchy. We can "
"carry a free culture into the twenty-first century, without artists losing "
"and without the potential of digital technology being destroyed. It will "
"take some thought, and more importantly, it will take some will to transform"
" the RCAs of our day into the Causbys."
msgstr ""

#.  PAGE BREAK 279
#. type: Content of: <book><chapter><para>
#: freeculture.xml:13924
msgid ""
"Common sense must revolt. It must act to free culture. Soon, if this "
"potential is ever to be realized."
msgstr ""

#. type: Content of: <book><chapter><title>
#: freeculture.xml:13932
msgid "AFTERWORD"
msgstr ""

#.  PAGE BREAK 280
#. type: Content of: <book><chapter><para>
#: freeculture.xml:13936
msgid ""
"<emphasis role='strong'>At least some</emphasis> who have read this far will"
" agree with me that something must be done to change where we are heading. "
"The balance of this book maps what might be done."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13941
msgid ""
"I divide this map into two parts: that which anyone can do now, and that "
"which requires the help of lawmakers. If there is one lesson that we can "
"draw from the history of remaking common sense, it is that it requires "
"remaking how many people think about the very same issue."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13947
msgid ""
"That means this movement must begin in the streets. It must recruit a "
"significant number of parents, teachers, librarians, creators, authors, "
"musicians, filmmakers, scientists&mdash;all to tell this story in their own "
"words, and to tell their neighbors why this battle is so important."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:13954
msgid ""
"Once this movement has its effect in the streets, it has some hope of having"
" an effect in Washington. We are still a democracy. What people think "
"matters. Not as much as it should, at least when an RCA stands opposed, but "
"still, it matters. And thus, in the second part below, I sketch changes that"
" Congress could make to better secure a free culture."
msgstr ""

#. type: Content of: <book><chapter><section><title>
#: freeculture.xml:13963
msgid "US, NOW"
msgstr ""

#. type: Content of: <book><chapter><section><para>
#: freeculture.xml:13965
msgid ""
"<emphasis role='strong'>Common sense</emphasis> is with the copyright "
"warriors because the debate so far has been framed at the extremes&mdash;as "
"a grand either/or: either property or anarchy, either total control or "
"artists won't be paid. If that really is the choice, then the warriors "
"should win."
msgstr ""

#. type: Content of: <book><chapter><section><para>
#: freeculture.xml:13972
msgid ""
"The mistake here is the error of the excluded middle. There are extremes in "
"this debate, but the extremes are not all that there is. There are those who"
" believe in maximal copyright&mdash;<quote>All Rights "
"Reserved</quote>&mdash; and those who reject copyright&mdash;<quote>No "
"Rights Reserved.</quote> The <quote>All Rights Reserved</quote> sorts "
"believe that you should ask permission before you <quote>use</quote> a "
"copyrighted work in any way. The <quote>No Rights Reserved</quote> sorts "
"believe you should be able to do with content as you wish, regardless of "
"whether you have permission or not."
msgstr ""

#. type: Content of: <book><chapter><section><indexterm><secondary>
#: freeculture.xml:13982
msgid "initial free character of"
msgstr ""

#.  PAGE BREAK 282
#. type: Content of: <book><chapter><section><para>
#: freeculture.xml:13984
msgid ""
"When the Internet was first born, its initial architecture effectively "
"tilted in the <quote>no rights reserved</quote> direction. Content could be "
"copied perfectly and cheaply; rights could not easily be controlled. Thus, "
"regardless of anyone's desire, the effective regime of copyright under the "
"original design of the Internet was <quote>no rights reserved.</quote> "
"Content was <quote>taken</quote> regardless of the rights. Any rights were "
"effectively unprotected."
msgstr ""

#. type: Content of: <book><chapter><section><para>
#: freeculture.xml:13996
msgid ""
"This initial character produced a reaction (opposite, but not quite equal) "
"by copyright owners. That reaction has been the topic of this book. Through "
"legislation, litigation, and changes to the network's design, copyright "
"holders have been able to change the essential character of the environment "
"of the original Internet. If the original architecture made the effective "
"default <quote>no rights reserved,</quote> the future architecture will make"
" the effective default <quote>all rights reserved.</quote> The architecture "
"and law that surround the Internet's design will increasingly produce an "
"environment where all use of content requires permission.  The <quote>cut "
"and paste</quote> world that defines the Internet today will become a "
"<quote>get permission to cut and paste</quote> world that is a creator's "
"nightmare."
msgstr ""

#. type: Content of: <book><chapter><section><para>
#: freeculture.xml:14012
msgid ""
"What's needed is a way to say something in the middle&mdash;neither "
"<quote>all rights reserved</quote> nor <quote>no rights reserved</quote> but"
" <quote>some rights reserved</quote>&mdash; and thus a way to respect "
"copyrights but enable creators to free content as they see fit. In other "
"words, we need a way to restore a set of freedoms that we could just take "
"for granted before."
msgstr ""

#. type: Content of: <book><chapter><section><section><title>
#: freeculture.xml:14020
msgid "Rebuilding Freedoms Previously Presumed: Examples"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><secondary>
#: freeculture.xml:14021
msgid "restoration efforts on previous aspects of"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:14023
msgid "privacy rights"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14025
msgid ""
"If you step back from the battle I've been describing here, you will "
"recognize this problem from other contexts. Think about privacy. Before the "
"Internet, most of us didn't have to worry much about data about our lives "
"that we broadcast to the world. If you walked into a bookstore and browsed "
"through some of the works of Karl Marx, you didn't need to worry about "
"explaining your browsing habits to your neighbors or boss. The "
"<quote>privacy</quote> of your browsing habits was assured."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14035
msgid "What made it assured?"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14039
msgid ""
"Well, if we think in terms of the modalities I described in chapter <xref "
"xrefstyle=\"select: labelnumber\" linkend=\"property-i\"/>, your privacy was"
" assured because of an inefficient architecture for gathering data and hence"
" a market constraint (cost) on anyone who wanted to gather that data. If you"
" were a suspected spy for North Korea, working for the CIA, no doubt your "
"privacy would not be assured.  But that's because the CIA would (we hope) "
"find it valuable enough to spend the thousands required to track you. But "
"for most of us (again, we can hope), spying doesn't pay. The highly "
"inefficient architecture of real space means we all enjoy a fairly robust "
"amount of privacy. That privacy is guaranteed to us by friction. Not by law "
"(there is no law protecting <quote>privacy</quote> in public places), and in"
" many places, not by norms (snooping and gossip are just fun), but instead, "
"by the costs that friction imposes on anyone who would want to spy."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:14054
msgid "Amazon"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:14055
msgid "cookies, Internet"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><secondary>
#: freeculture.xml:14056
msgid "privacy protection on"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14058
msgid ""
"Enter the Internet, where the cost of tracking browsing in particular has "
"become quite tiny. If you're a customer at Amazon, then as you browse the "
"pages, Amazon collects the data about what you've looked at. You know this "
"because at the side of the page, there's a list of <quote>recently "
"viewed</quote> pages. Now, because of the architecture of the Net and the "
"function of cookies on the Net, it is easier to collect the data than not. "
"The friction has disappeared, and hence any <quote>privacy</quote> protected"
" by the friction disappears, too."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><secondary>
#: freeculture.xml:14067
msgid "privacy rights in use of"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14069
msgid ""
"Amazon, of course, is not the problem. But we might begin to worry about "
"libraries. If you're one of those crazy lefties who thinks that people "
"should have the <quote>right</quote> to browse in a library without the "
"government knowing which books you look at (I'm one of those lefties, too), "
"then this change in the technology of monitoring might concern you. If it "
"becomes simple to gather and sort who does what in electronic spaces, then "
"the friction-induced privacy of yesterday disappears."
msgstr ""

#.  f1.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:14087
msgid ""
"See, for example, Marc Rotenberg, <quote>Fair Information Practices and the "
"Architecture of Privacy (What Larry Doesn't Get),</quote> "
"<citetitle>Stanford Technology Law Review</citetitle> 1 (2001): par. "
"6&ndash;18, available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#72</ulink> (describing examples in which technology defines privacy "
"policy). See also Jeffrey Rosen, <citetitle>The Naked Crowd: Reclaiming "
"Security and Freedom in an Anxious Age</citetitle> (New York: Random House, "
"2004) (mapping tradeoffs between technology and privacy)."
msgstr ""

#.  PAGE BREAK 284
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14081
msgid ""
"It is this reality that explains the push of many to define "
"<quote>privacy</quote> on the Internet. It is the recognition that "
"technology can remove what friction before gave us that leads many to push "
"for laws to do what friction did.<placeholder type=\"footnote\" id=\"0\"/> "
"And whether you're in favor of those laws or not, it is the pattern that is "
"important here. We must take affirmative steps to secure a kind of freedom "
"that was passively provided before. A change in technology now forces those "
"who believe in privacy to affirmatively act where, before, privacy was given"
" by default."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:14106
msgid "Data General"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14110
msgid ""
"A similar story could be told about the birth of the free software movement."
" When computers with software were first made available commercially, the "
"software&mdash;both the source code and the binaries&mdash; was free. You "
"couldn't run a program written for a Data General machine on an IBM machine,"
" so Data General and IBM didn't care much about controlling their software."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:14117
msgid "Stallman, Richard"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14119
msgid ""
"That was the world Richard Stallman was born into, and while he was a "
"researcher at MIT, he grew to love the community that developed when one was"
" free to explore and tinker with the software that ran on machines. Being a "
"smart sort himself, and a talented programmer, Stallman grew to depend upon "
"the freedom to add to or modify other people's work."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14127
msgid ""
"In an academic setting, at least, that's not a terribly radical idea. In a "
"math department, anyone would be free to tinker with a proof that someone "
"offered. If you thought you had a better way to prove a theorem, you could "
"take what someone else did and change it. In a classics department, if you "
"believed a colleague's translation of a recently discovered text was flawed,"
" you were free to improve it. Thus, to Stallman, it seemed obvious that you "
"should be free to tinker with and improve the code that ran a machine. This,"
" too, was knowledge. Why shouldn't it be open for criticism like anything "
"else?"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:14138
msgid "proprietary code"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14140
msgid ""
"No one answered that question. Instead, the architecture of revenue for "
"computing changed. As it became possible to import programs from one system "
"to another, it became economically attractive (at least in the view of some)"
" to hide the code of your program. So, too, as companies started selling "
"peripherals for mainframe systems. If I could just take your printer driver "
"and copy it, then that would make it easier for me to sell a printer to the "
"market than it was for you."
msgstr ""

#.  PAGE BREAK 285
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14149
msgid ""
"Thus, the practice of proprietary code began to spread, and by the early "
"1980s, Stallman found himself surrounded by proprietary code.  The world of "
"free software had been erased by a change in the economics of computing. And"
" as he believed, if he did nothing about it, then the freedom to change and "
"share software would be fundamentally weakened."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:14158
msgid "Torvalds, Linus"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14160
msgid ""
"Therefore, in 1984, Stallman began a project to build a free operating "
"system, so that at least a strain of free software would survive. That was "
"the birth of the GNU project, into which Linus Torvalds's "
"<quote>Linux</quote> kernel was added to produce the GNU/Linux operating "
"system.  <placeholder type=\"indexterm\" id=\"0\"/> <placeholder "
"type=\"indexterm\" id=\"1\"/>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14168
msgid ""
"Stallman's technique was to use copyright law to build a world of software "
"that must be kept free. Software licensed under the Free Software "
"Foundation's GPL cannot be modified and distributed unless the source code "
"for that software is made available as well. Thus, anyone building upon "
"GPL'd software would have to make their buildings free as well. This would "
"assure, Stallman believed, that an ecology of code would develop that "
"remained free for others to build upon. His fundamental goal was freedom; "
"innovative creative code was a byproduct."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14179
msgid ""
"Stallman was thus doing for software what privacy advocates now do for "
"privacy. He was seeking a way to rebuild a kind of freedom that was taken "
"for granted before. Through the affirmative use of licenses that bind "
"copyrighted code, Stallman was affirmatively reclaiming a space where free "
"software would survive. He was actively protecting what before had been "
"passively guaranteed."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:14189
msgid "scientific journals"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14191
msgid ""
"Finally, consider a very recent example that more directly resonates with "
"the story of this book. This is the shift in the way academic and scientific"
" journals are produced."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:14195
msgid "Lexis and Westlaw"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><secondary>
#: freeculture.xml:14197 freeculture.xml:14233
msgid "journals in"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><secondary>
#: freeculture.xml:14198
msgid "access to opinions of"
msgstr ""

#.  PAGE BREAK 286
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14200
msgid ""
"As digital technologies develop, it is becoming obvious to many that "
"printing thousands of copies of journals every month and sending them to "
"libraries is perhaps not the most efficient way to distribute knowledge. "
"Instead, journals are increasingly becoming electronic, and libraries and "
"their users are given access to these electronic journals through password-"
"protected sites. Something similar to this has been happening in law for "
"almost thirty years: Lexis and Westlaw have had electronic versions of case "
"reports available to subscribers to their service.  Although a Supreme Court"
" opinion is not copyrighted, and anyone is free to go to a library and read "
"it, Lexis and Westlaw are also free to charge users for the privilege of "
"gaining access to that Supreme Court opinion through their respective "
"services."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><secondary>
#: freeculture.xml:14215
msgid "access fees for material in"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><secondary>
#: freeculture.xml:14216
msgid "license system for rebuilding of"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14218
msgid ""
"There's nothing wrong in general with this, and indeed, the ability to "
"charge for access to even public domain materials is a good incentive for "
"people to develop new and innovative ways to spread knowledge.  The law has "
"agreed, which is why Lexis and Westlaw have been allowed to flourish. And if"
" there's nothing wrong with selling the public domain, then there could be "
"nothing wrong, in principle, with selling access to material that is not in "
"the public domain."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14229
msgid ""
"But what if the only way to get access to social and scientific data was "
"through proprietary services? What if no one had the ability to browse this "
"data except by paying for a subscription?"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14235
msgid ""
"As many are beginning to notice, this is increasingly the reality with "
"scientific journals. When these journals were distributed in paper form, "
"libraries could make the journals available to anyone who had access to the "
"library. Thus, patients with cancer could become cancer experts because the "
"library gave them access. Or patients trying to understand the risks of a "
"certain treatment could research those risks by reading all available "
"articles about that treatment. This freedom was therefore a function of the "
"institution of libraries (norms) and the technology of paper journals "
"(architecture)&mdash;namely, that it was very hard to control access to a "
"paper journal."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14247
msgid ""
"As journals become electronic, however, the publishers are demanding that "
"libraries not give the general public access to the journals. This means "
"that the freedoms provided by print journals in public libraries begin to "
"disappear. Thus, as with privacy and with software, a changing technology "
"and market shrink a freedom taken for granted before."
msgstr ""

#.  PAGE BREAK 287
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14257
msgid ""
"This shrinking freedom has led many to take affirmative steps to restore the"
" freedom that has been lost. The Public Library of Science (PLoS), for "
"example, is a nonprofit corporation dedicated to making scientific research "
"available to anyone with a Web connection. Authors of scientific work submit"
" that work to the Public Library of Science.  That work is then subject to "
"peer review. If accepted, the work is then deposited in a public, electronic"
" archive and made permanently available for free. PLoS also sells a print "
"version of its work, but the copyright for the print journal does not "
"inhibit the right of anyone to redistribute the work for free."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14271
msgid ""
"This is one of many such efforts to restore a freedom taken for granted "
"before, but now threatened by changing technology and markets.  There's no "
"doubt that this alternative competes with the traditional publishers and "
"their efforts to make money from the exclusive distribution of content. But "
"competition in our tradition is presumptively a good&mdash;especially when "
"it helps spread knowledge and science."
msgstr ""

#. type: Content of: <book><chapter><section><section><title>
#: freeculture.xml:14284
msgid "Rebuilding Free Culture: One Idea"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14287
msgid ""
"The same strategy could be applied to culture, as a response to the "
"increasing control effected through law and technology."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:14290
msgid "Stanford University"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14292
msgid ""
"Enter the Creative Commons. The Creative Commons is a nonprofit corporation "
"established in Massachusetts, but with its home at Stanford University. Its "
"aim is to build a layer of <emphasis>reasonable</emphasis> copyright on top "
"of the extremes that now reign. It does this by making it easy for people to"
" build upon other people's work, by making it simple for creators to express"
" the freedom for others to take and build upon their work. Simple tags, tied"
" to human-readable descriptions, tied to bulletproof licenses, make this "
"possible."
msgstr ""

#.  PAGE BREAK 288
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14303
msgid ""
"<emphasis>Simple</emphasis>&mdash;which means without a middleman, or "
"without a lawyer.  By developing a free set of licenses that people can "
"attach to their content, Creative Commons aims to mark a range of content "
"that can easily, and reliably, be built upon. These tags are then linked to "
"machine-readable versions of the license that enable computers automatically"
" to identify content that can easily be shared. These three expressions "
"together&mdash;a legal license, a human-readable description, and machine-"
"readable tags&mdash;constitute a Creative Commons license. A Creative "
"Commons license constitutes a grant of freedom to anyone who accesses the "
"license, and more importantly, an expression of the ideal that the person "
"associated with the license believes in something different than the "
"<quote>All</quote> or <quote>No</quote> extremes. Content is marked with the"
" CC mark, which does not mean that copyright is waived, but that certain "
"freedoms are given."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14321
msgid ""
"These freedoms are beyond the freedoms promised by fair use. Their precise "
"contours depend upon the choices the creator makes. The creator can choose a"
" license that permits any use, so long as attribution is given. She can "
"choose a license that permits only noncommercial use.  She can choose a "
"license that permits any use so long as the same freedoms are given to other"
" uses (<quote>share and share alike</quote>). Or any use so long as no "
"derivative use is made. Or any use at all within developing nations. Or any "
"sampling use, so long as full copies are not made. Or lastly, any "
"educational use."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14332
msgid ""
"These choices thus establish a range of freedoms beyond the default of "
"copyright law. They also enable freedoms that go beyond traditional fair "
"use. And most importantly, they express these freedoms in a way that "
"subsequent users can use and rely upon without the need to hire a lawyer. "
"Creative Commons thus aims to build a layer of content, governed by a layer "
"of reasonable copyright law, that others can build upon. Voluntary choice of"
" individuals and creators will make this content available. And that content"
" will in turn enable us to rebuild a public domain."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:14342
msgid "Garlick, Mia"
msgstr ""

#.  PAGE BREAK 289
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14344
msgid ""
"This is just one project among many within the Creative Commons.  And of "
"course, Creative Commons is not the only organization pursuing such "
"freedoms. But the point that distinguishes the Creative Commons from many is"
" that we are not interested only in talking about a public domain or in "
"getting legislators to help build a public domain. Our aim is to build a "
"movement of consumers and producers of content (<quote>content "
"conducers,</quote> as attorney Mia Garlick calls them)  who help build the "
"public domain and, by their work, demonstrate the importance of the public "
"domain to other creativity."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14357
msgid ""
"The aim is not to fight the <quote>All Rights Reserved</quote> sorts. The "
"aim is to complement them. The problems that the law creates for us as a "
"culture are produced by insane and unintended consequences of laws written "
"centuries ago, applied to a technology that only Jefferson could have "
"imagined. The rules may well have made sense against a background of "
"technologies from centuries ago, but they do not make sense against the "
"background of digital technologies. New rules&mdash;with different freedoms,"
" expressed in ways so that humans without lawyers can use them&mdash;are "
"needed. Creative Commons gives people a way effectively to begin to build "
"those rules."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14370
msgid ""
"Why would creators participate in giving up total control? Some participate "
"to better spread their content. Cory Doctorow, for example, is a science "
"fiction author. His first novel, <citetitle>Down and Out in the Magic "
"Kingdom</citetitle>, was released on-line and for free, under a Creative "
"Commons license, on the same day that it went on sale in bookstores."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14377
msgid ""
"Why would a publisher ever agree to this? I suspect his publisher reasoned "
"like this: There are two groups of people out there: (1)  those who will buy"
" Cory's book whether or not it's on the Internet, and (2) those who may "
"never hear of Cory's book, if it isn't made available for free on the "
"Internet. Some part of (1) will download Cory's book instead of buying it. "
"Call them bad-(1)s. Some part of (2)  will download Cory's book, like it, "
"and then decide to buy it. Call them (2)-goods.  If there are more (2)-goods"
" than bad-(1)s, the strategy of releasing Cory's book free on-line will "
"probably <emphasis>increase</emphasis> sales of Cory's book."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14389
msgid ""
"Indeed, the experience of his publisher clearly supports that conclusion.  "
"The book's first printing was exhausted months before the publisher had "
"expected. This first novel of a science fiction author was a total success."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:14394
msgid "Free for All (Wayner)"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:14395
msgid "Wayner, Peter"
msgstr ""

#.  PAGE BREAK 290
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14397
msgid ""
"The idea that free content might increase the value of nonfree content was "
"confirmed by the experience of another author. Peter Wayner, who wrote a "
"book about the free software movement titled <citetitle>Free for "
"All</citetitle>, made an electronic version of his book free on-line under a"
" Creative Commons license after the book went out of print. He then "
"monitored used book store prices for the book. As predicted, as the number "
"of downloads increased, the used book price for his book increased, as well."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:14408
msgid "Public Enemy"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:14409
msgid "rap music"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:14410
msgid "Leaphart, Walter"
msgstr ""

#.  f2.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:14427
msgid ""
"<citetitle>Willful Infringement: A Report from the Front Lines of the Real "
"Culture Wars</citetitle> (2003), produced by Jed Horovitz, directed by Greg "
"Hittelman, a Fiat Lucre production, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #72</ulink>."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14412
msgid ""
"These are examples of using the Commons to better spread proprietary "
"content. I believe that is a wonderful and common use of the Commons. There "
"are others who use Creative Commons licenses for other reasons. Many who use"
" the <quote>sampling license</quote> do so because anything else would be "
"hypocritical. The sampling license says that others are free, for commercial"
" or noncommercial purposes, to sample content from the licensed work; they "
"are just not free to make full copies of the licensed work available to "
"others. This is consistent with their own art&mdash;they, too, sample from "
"others. Because the <emphasis>legal</emphasis> costs of sampling are so high"
" (Walter Leaphart, manager of the rap group Public Enemy, which was born "
"sampling the music of others, has stated that he does not "
"<quote>allow</quote> Public Enemy to sample anymore, because the legal costs"
" are so high<placeholder type=\"footnote\" id=\"0\"/>), these artists "
"release into the creative environment content that others can build upon, so"
" that their form of creativity might grow."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14436
msgid ""
"Finally, there are many who mark their content with a Creative Commons "
"license just because they want to express to others the importance of "
"balance in this debate. If you just go along with the system as it is, you "
"are effectively saying you believe in the <quote>All Rights Reserved</quote>"
" model. Good for you, but many do not. Many believe that however appropriate"
" that rule is for Hollywood and freaks, it is not an appropriate description"
" of how most creators view the rights associated with their content. The "
"Creative Commons license expresses this notion of <quote>Some Rights "
"Reserved,</quote> and gives many the chance to say it to others."
msgstr ""

#.  PAGE BREAK 291
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14448
msgid ""
"In the first six months of the Creative Commons experiment, over 1 million "
"objects were licensed with these free-culture licenses. The next step is "
"partnerships with middleware content providers to help them build into their"
" technologies simple ways for users to mark their content with Creative "
"Commons freedoms. Then the next step is to watch and celebrate creators who "
"build content based upon content set free."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14458
msgid ""
"These are first steps to rebuilding a public domain. They are not mere "
"arguments; they are action. Building a public domain is the first step to "
"showing people how important that domain is to creativity and innovation. "
"Creative Commons relies upon voluntary steps to achieve this rebuilding. "
"They will lead to a world in which more than voluntary steps are possible."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14466
msgid ""
"Creative Commons is just one example of voluntary efforts by individuals and"
" creators to change the mix of rights that now govern the creative field. "
"The project does not compete with copyright; it complements it. Its aim is "
"not to defeat the rights of authors, but to make it easier for authors and "
"creators to exercise their rights more flexibly and cheaply. That "
"difference, we believe, will enable creativity to spread more easily."
msgstr ""

#. type: Content of: <book><chapter><section><title>
#: freeculture.xml:14480
msgid "THEM, SOON"
msgstr ""

#. type: Content of: <book><chapter><section><para>
#: freeculture.xml:14482
msgid ""
"<emphasis role='strong'>We will</emphasis> not reclaim a free culture by "
"individual action alone. It will also take important reforms of laws. We "
"have a long way to go before the politicians will listen to these ideas and "
"implement these reforms.  But that also means that we have time to build "
"awareness around the changes that we need."
msgstr ""

#. type: Content of: <book><chapter><section><para>
#: freeculture.xml:14489
msgid ""
"In this chapter, I outline five kinds of changes: four that are general, and"
" one that's specific to the most heated battle of the day, music. Each is a "
"step, not an end. But any of these steps would carry us a long way to our "
"end."
msgstr ""

#. type: Content of: <book><chapter><section><section><title>
#: freeculture.xml:14496
msgid "1. More Formalities"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14498
msgid ""
"If you buy a house, you have to record the sale in a deed. If you buy land "
"upon which to build a house, you have to record the purchase in a deed.  If "
"you buy a car, you get a bill of sale and register the car. If you buy an "
"airplane ticket, it has your name on it."
msgstr ""

#.  PAGE BREAK 293
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14505
msgid ""
"These are all formalities associated with property. They are requirements "
"that we all must bear if we want our property to be protected."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14510
msgid ""
"In contrast, under current copyright law, you automatically get a copyright,"
" regardless of whether you comply with any formality. You don't have to "
"register. You don't even have to mark your content. The default is control, "
"and <quote>formalities</quote> are banished."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14516
msgid "Why?"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14519
msgid ""
"As I suggested in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"property-i\"/>, the motivation to abolish formalities was a good "
"one. In the world before digital technologies, formalities imposed a burden "
"on copyright holders without much benefit. Thus, it was progress when the "
"law relaxed the formal requirements that a copyright owner must bear to "
"protect and secure his work. Those formalities were getting in the way."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14528
msgid ""
"But the Internet changes all this. Formalities today need not be a burden. "
"Rather, the world without formalities is the world that burdens creativity. "
"Today, there is no simple way to know who owns what, or with whom one must "
"deal in order to use or build upon the creative work of others. There are no"
" records, there is no system to trace&mdash; there is no simple way to know "
"how to get permission. Yet given the massive increase in the scope of "
"copyright's rule, getting permission is a necessary step for any work that "
"builds upon our past. And thus, the <emphasis>lack</emphasis> of formalities"
" forces many into silence where they otherwise could speak."
msgstr ""

#.  f1.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:14542
msgid ""
"The proposal I am advancing here would apply to American works only.  "
"Obviously, I believe it would be beneficial for the same idea to be adopted "
"by other countries as well."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14540
msgid ""
"The law should therefore change this requirement<placeholder "
"type=\"footnote\" id=\"0\"/>&mdash;but it should not change it by going back"
" to the old, broken system. We should require formalities, but we should "
"establish a system that will create the incentives to minimize the burden of"
" these formalities."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14550
msgid ""
"The important formalities are three: marking copyrighted work, registering "
"copyrights, and renewing the claim to copyright. Traditionally, the first of"
" these three was something the copyright owner did; the second two were "
"something the government did. But a revised system of formalities would "
"banish the government from the process, except for the sole purpose of "
"approving standards developed by others."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><title>
#: freeculture.xml:14562
msgid "REGISTRATION AND RENEWAL"
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:14564
msgid ""
"Under the old system, a copyright owner had to file a registration with the "
"Copyright Office to register or renew a copyright. When filing that "
"registration, the copyright owner paid a fee. As with most government "
"agencies, the Copyright Office had little incentive to minimize the burden "
"of registration; it also had little incentive to minimize the fee.  And as "
"the Copyright Office is not a main target of government policymaking, the "
"office has historically been terribly underfunded. Thus, when people who "
"know something about the process hear this idea about formalities, their "
"first reaction is panic&mdash;nothing could be worse than forcing people to "
"deal with the mess that is the Copyright Office."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:14577
msgid ""
"Yet it is always astonishing to me that we, who come from a tradition of "
"extraordinary innovation in governmental design, can no longer think "
"innovatively about how governmental functions can be designed.  Just because"
" there is a public purpose to a government role, it doesn't follow that the "
"government must actually administer the role. Instead, we should be creating"
" incentives for private parties to serve the public, subject to standards "
"that the government sets."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:14586
msgid ""
"In the context of registration, one obvious model is the Internet.  There "
"are at least 32 million Web sites registered around the world.  Domain name "
"owners for these Web sites have to pay a fee to keep their registration "
"alive. In the main top-level domains (.com, .org, .net), there is a central "
"registry. The actual registrations are, however, performed by many competing"
" registrars. That competition drives the cost of registering down, and more "
"importantly, it drives the ease with which registration occurs up."
msgstr ""

#.  PAGE BREAK 295
#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:14596
msgid ""
"We should adopt a similar model for the registration and renewal of "
"copyrights. The Copyright Office may well serve as the central registry, but"
" it should not be in the registrar business. Instead, it should establish a "
"database, and a set of standards for registrars. It should approve "
"registrars that meet its standards. Those registrars would then compete with"
" one another to deliver the cheapest and simplest systems for registering "
"and renewing copyrights. That competition would substantially lower the "
"burden of this formality&mdash;while producing a database of registrations "
"that would facilitate the licensing of content."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><title>
#: freeculture.xml:14611
msgid "MARKING"
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:14613
msgid ""
"It used to be that the failure to include a copyright notice on a creative "
"work meant that the copyright was forfeited. That was a harsh punishment for"
" failing to comply with a regulatory rule&mdash;akin to imposing the death "
"penalty for a parking ticket in the world of creative rights.  Here again, "
"there is no reason that a marking requirement needs to be enforced in this "
"way. And more importantly, there is no reason a marking requirement needs to"
" be enforced uniformly across all media."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:14623
msgid ""
"The aim of marking is to signal to the public that this work is copyrighted "
"and that the author wants to enforce his rights. The mark also makes it easy"
" to locate a copyright owner to secure permission to use the work."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:14629
msgid ""
"One of the problems the copyright system confronted early on was that "
"different copyrighted works had to be differently marked. It wasn't clear "
"how or where a statue was to be marked, or a record, or a film. A new "
"marking requirement could solve these problems by recognizing the "
"differences in media, and by allowing the system of marking to evolve as "
"technologies enable it to. The system could enable a special signal from the"
" failure to mark&mdash;not the loss of the copyright, but the loss of the "
"right to punish someone for failing to get permission first."
msgstr ""

#.  f2.
#. type: Content of:
#. <book><chapter><section><section><section><para><footnote><para>
#: freeculture.xml:14646
msgid ""
"There would be a complication with derivative works that I have not solved "
"here. In my view, the law of derivatives creates a more complicated system "
"than is justified by the marginal incentive it creates."
msgstr ""

#.  PAGE BREAK 296
#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:14639
msgid ""
"Let's start with the last point. If a copyright owner allows his work to be "
"published without a copyright notice, the consequence of that failure need "
"not be that the copyright is lost. The consequence could instead be that "
"anyone has the right to use this work, until the copyright owner complains "
"and demonstrates that it is his work and he doesn't give "
"permission.<placeholder type=\"footnote\" id=\"0\"/> The meaning of an "
"unmarked work would therefore be <quote>use unless someone "
"complains.</quote> If someone does complain, then the obligation would be to"
" stop using the work in any new work from then on though no penalty would "
"attach for existing uses.  This would create a strong incentive for "
"copyright owners to mark their work."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:14659
msgid ""
"That in turn raises the question about how work should best be marked. Here "
"again, the system needs to adjust as the technologies evolve. The best way "
"to ensure that the system evolves is to limit the Copyright Office's role to"
" that of approving standards for marking content that have been crafted "
"elsewhere."
msgstr ""

#. type: Content of:
#. <book><chapter><section><section><section><indexterm><secondary>
#: freeculture.xml:14665
msgid "copyright marking of"
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:14667
msgid ""
"For example, if a recording industry association devises a method for "
"marking CDs, it would propose that to the Copyright Office. The Copyright "
"Office would hold a hearing, at which other proposals could be made. The "
"Copyright Office would then select the proposal that it judged preferable, "
"and it would base that choice <emphasis>solely</emphasis> upon the "
"consideration of which method could best be integrated into the registration"
" and renewal system. We would not count on the government to innovate; but "
"we would count on the government to keep the product of innovation in line "
"with its other important functions."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:14679
msgid ""
"Finally, marking content clearly would simplify registration requirements.  "
"If photographs were marked by author and year, there would be little reason "
"not to allow a photographer to reregister, for example, all photographs "
"taken in a particular year in one quick step. The aim of the formality is "
"not to burden the creator; the system itself should be kept as simple as "
"possible."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:14687
msgid ""
"The objective of formalities is to make things clear. The existing system "
"does nothing to make things clear. Indeed, it seems designed to make things "
"unclear."
msgstr ""

#. type: Content of: <book><chapter><section><section><section><para>
#: freeculture.xml:14692
msgid ""
"If formalities such as registration were reinstated, one of the most "
"difficult aspects of relying upon the public domain would be removed.  It "
"would be simple to identify what content is presumptively free; it would be "
"simple to identify who controls the rights for a particular kind of content;"
" it would be simple to assert those rights, and to renew that assertion at "
"the appropriate time."
msgstr ""

#. type: Content of: <book><chapter><section><section><title>
#: freeculture.xml:14704
msgid "2. Shorter Terms"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14706
msgid ""
"The term of copyright has gone from fourteen years to ninety-five years for "
"corporate authors, and life of the author plus seventy years for natural "
"authors."
msgstr ""

#.  f3.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:14719
msgid ""
"<quote>A Radical Rethink,</quote> <citetitle>Economist</citetitle>, 366:8308"
" (25 January 2003): 15, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #74</ulink>."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14711
msgid ""
"In <citetitle>The Future of Ideas</citetitle>, I proposed a seventy-five-"
"year term, granted in five-year increments with a requirement of renewal "
"every five years.  That seemed radical enough at the time. But after we lost"
" <citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, the "
"proposals became even more radical. <citetitle>The Economist</citetitle> "
"endorsed a proposal for a fourteen-year copyright term.<placeholder "
"type=\"footnote\" id=\"0\"/> Others have proposed tying the term to the term"
" for patents."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14726
msgid ""
"I agree with those who believe that we need a radical change in copyright's "
"term. But whether fourteen years or seventy-five, there are four principles "
"that are important to keep in mind about copyright terms."
msgstr ""

#.  (1)
#. type: Content of:
#. <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:14734
msgid ""
"<emphasis>Keep it short:</emphasis> The term should be as long as necessary "
"to give incentives to create, but no longer. If it were tied to very strong "
"protections for authors (so authors were able to reclaim rights from "
"publishers), rights to the same work (not derivative works) might be "
"extended further. The key is not to tie the work up with legal regulations "
"when it no longer benefits an author."
msgstr ""

#.  (2)
#.  PAGE BREAK 298
#. type: Content of:
#. <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:14743
msgid ""
"<emphasis>Keep it simple:</emphasis> The line between the public domain and "
"protected content must be kept clear. Lawyers like the fuzziness of "
"<quote>fair use,</quote> and the distinction between <quote>ideas</quote> "
"and <quote>expression.</quote> That kind of law gives them lots of work. But"
" our framers had a simpler idea in mind: protected versus unprotected.  The "
"value of short terms is that there is little need to build exceptions into "
"copyright when the term itself is kept short. A clear and active <quote"
">lawyer-free zone</quote> makes the complexities of <quote>fair use</quote> "
"and <quote>idea/expression</quote> less necessary to navigate."
msgstr ""

#. type: Content of:
#. <book><chapter><section><section><orderedlist><listitem><indexterm><primary>
#: freeculture.xml:14755
msgid "veterans' pensions"
msgstr ""

#.  f4.
#. type: Content of:
#. <book><chapter><section><section><orderedlist><listitem><para><footnote><para>
#: freeculture.xml:14766
msgid ""
"Department of Veterans Affairs, Veteran's Application for Compensation "
"and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001), available at "
"<ulink url=\"http://free-culture.cc/notes/\">link #75</ulink>."
msgstr ""

#. type: Content of:
#. <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:14758
msgid ""
"<emphasis>Keep it alive:</emphasis> Copyright should have to be renewed.  "
"Especially if the maximum term is long, the copyright owner should be "
"required to signal periodically that he wants the protection continued. This"
" need not be an onerous burden, but there is no reason this monopoly "
"protection has to be granted for free. On average, it takes ninety minutes "
"for a veteran to apply for a pension.<placeholder type=\"footnote\" "
"id=\"0\"/> If we make veterans suffer that burden, I don't see why we "
"couldn't require authors to spend ten minutes every fifty years to file a "
"single form."
msgstr ""

#.  (4)
#. type: Content of:
#. <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:14777
msgid ""
"<emphasis>Keep it prospective:</emphasis> Whatever the term of copyright "
"should be, the clearest lesson that economists teach is that a term once "
"given should not be extended. It might have been a mistake in 1923 for the "
"law to offer authors only a fifty-six-year term. I don't think so, but it's "
"possible. If it was a mistake, then the consequence was that we got fewer "
"authors to create in 1923 than we otherwise would have. But we can't correct"
" that mistake today by increasing the term. No matter what we do today, we "
"will not increase the number of authors who wrote in 1923. Of course, we can"
" increase the reward that those who write now get (or alternatively, "
"increase the copyright burden that smothers many works that are today "
"invisible). But increasing their reward will not increase their creativity "
"in 1923.  What's not done is not done, and there's nothing we can do about "
"that now."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14793
msgid ""
"These changes together should produce an <emphasis>average</emphasis> "
"copyright term that is much shorter than the current term. Until 1976, the "
"average term was just 32.2 years. We should be aiming for the same."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14799
msgid ""
"No doubt the extremists will call these ideas <quote>radical.</quote> (After"
" all, I call them <quote>extremists.</quote>) But again, the term I "
"recommended was longer than the term under Richard Nixon. How "
"<quote>radical</quote> can it be to ask for a more generous copyright law "
"than Richard Nixon presided over?"
msgstr ""

#. type: Content of: <book><chapter><section><section><title>
#: freeculture.xml:14809
msgid "3. Free Use Vs. Fair Use"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14813
msgid ""
"As I observed at the beginning of this book, property law originally granted"
" property owners the right to control their property from the ground to the "
"heavens. The airplane came along. The scope of property rights quickly "
"changed. There was no fuss, no constitutional challenge.  It made no sense "
"anymore to grant that much control, given the emergence of that new "
"technology."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14821
msgid ""
"Our Constitution gives Congress the power to give authors <quote>exclusive "
"right</quote> to <quote>their writings.</quote> Congress has given authors "
"an exclusive right to <quote>their writings</quote> plus any derivative "
"writings (made by others) that are sufficiently close to the author's "
"original work. Thus, if I write a book, and you base a movie on that book, I"
" have the power to deny you the right to release that movie, even though "
"that movie is not <quote>my writing.</quote>"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:14829
msgid "Kaplan, Benjamin"
msgstr ""

#.  f5.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:14835
msgid ""
"Benjamin Kaplan, <citetitle>An Unhurried View of Copyright</citetitle> (New "
"York: Columbia University Press, 1967), 32."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14831
msgid ""
"Congress granted the beginnings of this right in 1870, when it expanded the "
"exclusive right of copyright to include a right to control translations and "
"dramatizations of a work.<placeholder type=\"footnote\" id=\"0\"/> The "
"courts have expanded it slowly through judicial interpretation ever since. "
"This expansion has been commented upon by one of the law's greatest judges, "
"Judge Benjamin Kaplan."
msgstr ""

#.  f6.
#. type: Content of:
#. <book><chapter><section><section><blockquote><para><footnote><para>
#: freeculture.xml:14848
msgid "Ibid., 56."
msgstr ""

#. type: Content of: <book><chapter><section><section><blockquote><para>
#: freeculture.xml:14844
msgid ""
"So inured have we become to the extension of the monopoly to a large range "
"of so-called derivative works, that we no longer sense the oddity of "
"accepting such an enlargement of copyright while yet intoning the "
"abracadabra of idea and expression.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14853
msgid ""
"I think it's time to recognize that there are airplanes in this field and "
"the expansiveness of these rights of derivative use no longer make sense. "
"More precisely, they don't make sense for the period of time that a "
"copyright runs. And they don't make sense as an amorphous grant.  Consider "
"each limitation in turn."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14860
msgid ""
"<emphasis>Term:</emphasis> If Congress wants to grant a derivative right, "
"then that right should be for a much shorter term. It makes sense to protect"
" John Grisham's right to sell the movie rights to his latest novel (or at "
"least I'm willing to assume it does); but it does not make sense for that "
"right to run for the same term as the underlying copyright. The derivative "
"right could be important in inducing creativity; it is not important long "
"after the creative work is done.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14873
msgid ""
"<emphasis>Scope:</emphasis> Likewise should the scope of derivative rights "
"be narrowed.  Again, there are some cases in which derivative rights are "
"important.  Those should be specified. But the law should draw clear lines "
"around regulated and unregulated uses of copyrighted material. When all "
"<quote>reuse</quote> of creative material was within the control of "
"businesses, perhaps it made sense to require lawyers to negotiate the lines."
" It no longer makes sense for lawyers to negotiate the lines. Think about "
"all the creative possibilities that digital technologies enable; now imagine"
" pouring molasses into the machines. That's what this general requirement of"
" permission does to the creative process. Smothers it."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14887
msgid ""
"This was the point that Alben made when describing the making of the Clint "
"Eastwood CD. While it makes sense to require negotiation for foreseeable "
"derivative rights&mdash;turning a book into a movie, or a poem into a "
"musical score&mdash;it doesn't make sense to require negotiation for the "
"unforeseeable. Here, a statutory right would make much more sense."
msgstr ""

#. type: Content of:
#. <book><chapter><section><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:14903
msgid "Goldstein, Paul"
msgstr ""

#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:14901
msgid ""
"Paul Goldstein, <citetitle>Copyright's Highway: From Gutenberg to the "
"Celestial Jukebox</citetitle> (Stanford: Stanford University Press, 2003), "
"187&ndash;216.  <placeholder type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14895
msgid ""
"In each of these cases, the law should mark the uses that are protected, and"
" the presumption should be that other uses are not protected.  This is the "
"reverse of the recommendation of my colleague Paul Goldstein.<placeholder "
"type=\"footnote\" id=\"0\"/> His view is that the law should be written so "
"that expanded protections follow expanded uses."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14909
msgid ""
"Goldstein's analysis would make perfect sense if the cost of the legal "
"system were small. But as we are currently seeing in the context of the "
"Internet, the uncertainty about the scope of protection, and the incentives "
"to protect existing architectures of revenue, combined with a strong "
"copyright, weaken the process of innovation."
msgstr ""

#.  PAGE BREAK 301
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14916
msgid ""
"The law could remedy this problem either by removing protection beyond the "
"part explicitly drawn or by granting reuse rights upon certain statutory "
"conditions. Either way, the effect would be to free a great deal of culture "
"to others to cultivate. And under a statutory rights regime, that reuse "
"would earn artists more income."
msgstr ""

#. type: Content of: <book><chapter><section><section><title>
#: freeculture.xml:14926
msgid "4. Liberate the Music&mdash;Again"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14928
msgid ""
"The battle that got this whole war going was about music, so it wouldn't be "
"fair to end this book without addressing the issue that is, to most people, "
"most pressing&mdash;music. There is no other policy issue that better "
"teaches the lessons of this book than the battles around the sharing of "
"music."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14935
msgid ""
"The appeal of file-sharing music was the crack cocaine of the Internet's "
"growth. It drove demand for access to the Internet more powerfully than any "
"other single application. It was the Internet's killer app&mdash;possibly in"
" two senses of that word. It no doubt was the application that drove demand "
"for bandwidth. It may well be the application that drives demand for "
"regulations that in the end kill innovation on the network."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14944
msgid ""
"The aim of copyright, with respect to content in general and music in "
"particular, is to create the incentives for music to be composed, performed,"
" and, most importantly, spread. The law does this by giving an exclusive "
"right to a composer to control public performances of his work, and to a "
"performing artist to control copies of her performance."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14951
msgid ""
"File-sharing networks complicate this model by enabling the spread of "
"content for which the performer has not been paid. But of course, that's not"
" all the file-sharing networks do. As I described in chapter <xref "
"xrefstyle=\"select: labelnumber\" linkend=\"piracy\"/>, they enable four "
"different kinds of sharing:"
msgstr ""

#.  A.
#. type: Content of:
#. <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:14960
msgid ""
"There are some who are using sharing networks as substitutes for purchasing "
"CDs."
msgstr ""

#.  B.
#. type: Content of:
#. <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:14965
msgid ""
"There are also some who are using sharing networks to sample, on the way to "
"purchasing CDs."
msgstr ""

#.  PAGE BREAK 302
#.  C.
#. type: Content of:
#. <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:14971
msgid ""
"There are many who are using file-sharing networks to get access to content "
"that is no longer sold but is still under copyright or that would have been "
"too cumbersome to buy off the Net."
msgstr ""

#.  D.
#. type: Content of:
#. <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:14977
msgid ""
"There are many who are using file-sharing networks to get access to content "
"that is not copyrighted or to get access that the copyright owner plainly "
"endorses."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14985
msgid ""
"Any reform of the law needs to keep these different uses in focus. It must "
"avoid burdening type D even if it aims to eliminate type A. The eagerness "
"with which the law aims to eliminate type A, moreover, should depend upon "
"the magnitude of type B. As with VCRs, if the net effect of sharing is "
"actually not very harmful, the need for regulation is significantly "
"weakened."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:14993
msgid ""
"As I said in chapter <xref xrefstyle=\"select: labelnumber\" "
"linkend=\"piracy\"/>, the actual harm caused by sharing is controversial.  "
"For the purposes of this chapter, however, I assume the harm is real. I "
"assume, in other words, that type A sharing is significantly greater than "
"type B, and is the dominant use of sharing networks."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15001
msgid ""
"Nonetheless, there is a crucial fact about the current technological context"
" that we must keep in mind if we are to understand how the law should "
"respond."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15006
msgid ""
"Today, file sharing is addictive. In ten years, it won't be. It is addictive"
" today because it is the easiest way to gain access to a broad range of "
"content.  It won't be the easiest way to get access to a broad range of "
"content in ten years. Today, access to the Internet is cumbersome and "
"slow&mdash;we in the United States are lucky to have broadband service at "
"1.5 MBs, and very rarely do we get service at that speed both up and down. "
"Although wireless access is growing, most of us still get access across "
"wires. Most only gain access through a machine with a keyboard. The idea of "
"the always on, always connected Internet is mainly just an idea."
msgstr ""

#.  PAGE BREAK 303
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15018
msgid ""
"But it will become a reality, and that means the way we get access to the "
"Internet today is a technology in transition. Policy makers should not make "
"policy on the basis of technology in transition. They should make policy on "
"the basis of where the technology is going. The question should not be, how "
"should the law regulate sharing in this world? The question should be, what "
"law will we require when the network becomes the network it is clearly "
"becoming? That network is one in which every machine with electricity is "
"essentially on the Net; where everywhere you are&mdash;except maybe the "
"desert or the Rockies&mdash;you can instantaneously be connected to the "
"Internet. Imagine the Internet as ubiquitous as the best cell-phone service,"
" where with the flip of a device, you are connected."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:15032
msgid "cell phones, music streamed over"
msgstr ""

#.  f8.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:15052
msgid ""
"See, for example, <quote>Music Media Watch,</quote> The J@pan Inc. "
"Newsletter, 3 April 2002, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #76</ulink>."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15034
msgid ""
"In that world, it will be extremely easy to connect to services that give "
"you access to content on the fly&mdash;such as Internet radio, content that "
"is streamed to the user when the user demands. Here, then, is the critical "
"point: When it is <emphasis>extremely</emphasis> easy to connect to services"
" that give access to content, it will be <emphasis>easier</emphasis> to "
"connect to services that give you access to content than it will be to "
"download and store content <emphasis>on the many devices you will have for "
"playing content</emphasis>. It will be easier, in other words, to subscribe "
"than it will be to be a database manager, as everyone in the download-"
"sharing world of Napster-like technologies essentially is. Content services "
"will compete with content sharing, even if the services charge money for the"
" content they give access to. Already cell-phone services in Japan offer "
"music (for a fee) streamed over cell phones (enhanced with plugs for "
"headphones). The Japanese are paying for this content even though "
"<quote>free</quote> content is available in the form of MP3s across the "
"Web.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#.  PAGE BREAK 304
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15059
msgid ""
"This point about the future is meant to suggest a perspective on the "
"present: It is emphatically temporary. The <quote>problem</quote> with file "
"sharing&mdash;to the extent there is a real problem&mdash;is a problem that "
"will increasingly disappear as it becomes easier to connect to the Internet."
"  And thus it is an extraordinary mistake for policy makers today to be "
"<quote>solving</quote> this problem in light of a technology that will be "
"gone tomorrow.  The question should not be how to regulate the Internet to "
"eliminate file sharing (the Net will evolve that problem away). The question"
" instead should be how to assure that artists get paid, during this "
"transition between twentieth-century models for doing business and twenty-"
"first-century technologies."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15075
msgid ""
"The answer begins with recognizing that there are different "
"<quote>problems</quote> here to solve. Let's start with type D "
"content&mdash;uncopyrighted content or copyrighted content that the artist "
"wants shared. The <quote>problem</quote> with this content is to make sure "
"that the technology that would enable this kind of sharing is not rendered "
"illegal. You can think of it this way: Pay phones are used to deliver ransom"
" demands, no doubt.  But there are many who need to use pay phones who have "
"nothing to do with ransoms. It would be wrong to ban pay phones in order to "
"eliminate kidnapping."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15086
msgid ""
"Type C content raises a different <quote>problem.</quote> This is content "
"that was, at one time, published and is no longer available. It may be "
"unavailable because the artist is no longer valuable enough for the record "
"label he signed with to carry his work. Or it may be unavailable because the"
" work is forgotten. Either way, the aim of the law should be to facilitate "
"the access to this content, ideally in a way that returns something to the "
"artist."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15097
msgid ""
"Again, the model here is the used book store. Once a book goes out of print,"
" it may still be available in libraries and used book stores. But libraries "
"and used book stores don't pay the copyright owner when someone reads or "
"buys an out-of-print book. That makes total sense, of course, since any "
"other system would be so burdensome as to eliminate the possibility of used "
"book stores' existing. But from the author's perspective, this "
"<quote>sharing</quote> of his content without his being compensated is less "
"than ideal."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15107
msgid ""
"The model of used book stores suggests that the law could simply deem out-"
"of-print music fair game. If the publisher does not make copies of the music"
" available for sale, then commercial and noncommercial providers would be "
"free, under this rule, to <quote>share</quote> that content, even though the"
" sharing involved making a copy. The copy here would be incidental to the "
"trade; in a context where commercial publishing has ended, trading music "
"should be as free as trading books."
msgstr ""

#.  PAGE BREAK 305
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15118
msgid ""
"Alternatively, the law could create a statutory license that would ensure "
"that artists get something from the trade of their work. For example, if the"
" law set a low statutory rate for the commercial sharing of content that was"
" not offered for sale by a commercial publisher, and if that rate were "
"automatically transferred to a trust for the benefit of the artist, then "
"businesses could develop around the idea of trading this content, and "
"artists would benefit from this trade."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15128
msgid ""
"This system would also create an incentive for publishers to keep works "
"available commercially. Works that are available commercially would not be "
"subject to this license. Thus, publishers could protect the right to charge "
"whatever they want for content if they kept the work commercially available."
" But if they don't keep it available, and instead, the computer hard disks "
"of fans around the world keep it alive, then any royalty owed for such "
"copying should be much less than the amount owed a commercial publisher."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15138
msgid ""
"The hard case is content of types A and B, and again, this case is hard only"
" because the extent of the problem will change over time, as the "
"technologies for gaining access to content change. The law's solution should"
" be as flexible as the problem is, understanding that we are in the middle "
"of a radical transformation in the technology for delivering and accessing "
"content."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15146
msgid ""
"So here's a solution that will at first seem very strange to both sides in "
"this war, but which upon reflection, I suggest, should make some sense."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15150
msgid ""
"Stripped of the rhetoric about the sanctity of property, the basic claim of "
"the content industry is this: A new technology (the Internet)  has harmed a "
"set of rights that secure copyright. If those rights are to be protected, "
"then the content industry should be compensated for that harm. Just as the "
"technology of tobacco harmed the health of millions of Americans, or the "
"technology of asbestos caused grave illness to thousands of miners, so, too,"
" has the technology of digital networks harmed the interests of the content "
"industry."
msgstr ""

#.  PAGE BREAK 306
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15161
msgid ""
"I love the Internet, and so I don't like likening it to tobacco or asbestos."
"  But the analogy is a fair one from the perspective of the law.  And it "
"suggests a fair response: Rather than seeking to destroy the Internet, or "
"the p2p technologies that are currently harming content providers on the "
"Internet, we should find a relatively simple way to compensate those who are"
" harmed."
msgstr ""

#. type: Content of:
#. <book><chapter><section><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:15168 freeculture.xml:15210
msgid "Promises to Keep (Fisher)"
msgstr ""

#. type: Content of:
#. <book><chapter><section><section><para><footnote><para><indexterm><primary>
#: freeculture.xml:15208
msgid "Fisher, William"
msgstr ""

#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:15174
msgid ""
"<placeholder type=\"indexterm\" id=\"0\"/> William Fisher, "
"<citetitle>Digital Music: Problems and Possibilities</citetitle> (last "
"revised: 10 October 2000), available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #77</ulink>; William Fisher, <citetitle>Promises to"
" Keep: Technology, Law, and the Future of Entertainment</citetitle> "
"(forthcoming) (Stanford: Stanford University Press, 2004), ch. 6, available "
"at <ulink url=\"http://free-culture.cc/notes/\">link #78</ulink>. Professor "
"Netanel has proposed a related idea that would exempt noncommercial sharing "
"from the reach of copyright and would establish compensation to artists to "
"balance any loss. See Neil Weinstock Netanel, <quote>Impose a Noncommercial "
"Use Levy to Allow Free P2P File Sharing,</quote> available at <ulink "
"url=\"http://free-culture.cc/notes/\">link #79</ulink>. For other proposals,"
" see Lawrence Lessig, <quote>Who's Holding Back Broadband?</quote> "
"<citetitle>Washington Post</citetitle>, 8 January 2002, A17; Philip S. "
"Corwin on behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, "
"Jr., Chairman of the Senate Foreign Relations Committee, 26 February 2002, "
"available at <ulink url=\"http://free-culture.cc/notes/\">link #80</ulink>; "
"Serguei Osokine, <citetitle>A Quick Case for Intellectual Property Use Fee "
"(IPUF)</citetitle>, 3 March 2002, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #81</ulink>; Jefferson Graham, <quote>Kazaa, "
"Verizon Propose to Pay Artists Directly,</quote> <citetitle>USA "
"Today</citetitle>, 13 May 2002, available at <ulink url=\"http://free-"
"culture.cc/notes/\">link #82</ulink>; Steven M. Cherry, <quote>Getting "
"Copyright Right,</quote> IEEE Spectrum Online, 1 July 2002, available at "
"<ulink url=\"http://free-culture.cc/notes/\">link #83</ulink>; Declan "
"McCullagh, <quote>Verizon's Copyright Campaign,</quote> CNET News.com, 27 "
"August 2002, available at <ulink url=\"http://free-culture.cc/notes/\">link "
"#84</ulink>.  Fisher's proposal is very similar to Richard Stallman's "
"proposal for DAT. Unlike Fisher's, Stallman's proposal would not pay artists"
" directly proportionally, though more popular artists would get more than "
"the less popular. As is typical with Stallman, his proposal predates the "
"current debate by about a decade. See <ulink url=\"http://free-"
"culture.cc/notes/\">link #85</ulink>.  <placeholder type=\"indexterm\" "
"id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> <placeholder "
"type=\"indexterm\" id=\"3\"/>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15170
msgid ""
"The idea would be a modification of a proposal that has been floated by "
"Harvard law professor William Fisher.<placeholder type=\"footnote\" "
"id=\"0\"/> Fisher suggests a very clever way around the current impasse of "
"the Internet. Under his plan, all content capable of digital transmission "
"would (1) be marked with a digital watermark (don't worry about how easy it "
"is to evade these marks; as you'll see, there's no incentive to evade them)."
" Once the content is marked, then entrepreneurs would develop (2) systems to"
" monitor how many items of each content were distributed. On the basis of "
"those numbers, then (3) artists would be compensated. The compensation would"
" be paid for by (4) an appropriate tax."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15224
msgid ""
"Fisher's proposal is careful and comprehensive. It raises a million "
"questions, most of which he answers well in his upcoming book, "
"<citetitle>Promises to Keep</citetitle>. The modification that I would make "
"is relatively simple: Fisher imagines his proposal replacing the existing "
"copyright system.  I imagine it complementing the existing system. The aim "
"of the proposal would be to facilitate compensation to the extent that harm "
"could be shown. This compensation would be temporary, aimed at facilitating "
"a transition between regimes. And it would require renewal after a period of"
" years. If it continues to make sense to facilitate free exchange of "
"content, supported through a taxation system, then it can be continued. If "
"this form of protection is no longer necessary, then the system could lapse "
"into the old system of controlling access."
msgstr ""

#.  PAGE BREAK 307
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15241
msgid ""
"Fisher would balk at the idea of allowing the system to lapse. His aim is "
"not just to ensure that artists are paid, but also to ensure that the system"
" supports the widest range of <quote>semiotic democracy</quote> possible. "
"But the aims of semiotic democracy would be satisfied if the other changes I"
" described were accomplished&mdash;in particular, the limits on derivative "
"uses. A system that simply charges for access would not greatly burden "
"semiotic democracy if there were few limitations on what one was allowed to "
"do with the content itself."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:15254
msgid "MusicStore"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><secondary>
#: freeculture.xml:15256
msgid "prices of"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15258
msgid ""
"No doubt it would be difficult to calculate the proper measure of "
"<quote>harm</quote> to an industry. But the difficulty of making that "
"calculation would be outweighed by the benefit of facilitating innovation. "
"This background system to compensate would also not need to interfere with "
"innovative proposals such as Apple's MusicStore. As experts predicted when "
"Apple launched the MusicStore, it could beat <quote>free</quote> by being "
"easier than free is. This has proven correct: Apple has sold millions of "
"songs at even the very high price of 99 cents a song. (At 99 cents, the cost"
" is the equivalent of a per-song CD price, though the labels have none of "
"the costs of a CD to pay.) Apple's move was countered by Real Networks, "
"offering music at just 79 cents a song. And no doubt there will be a great "
"deal of competition to offer and sell music on-line."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><secondary>
#: freeculture.xml:15273
msgid "cable vs. broadcast"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><secondary>
#: freeculture.xml:15276
msgid "luxury theatres vs. video piracy in"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15278
msgid ""
"This competition has already occurred against the background of "
"<quote>free</quote> music from p2p systems. As the sellers of cable "
"television have known for thirty years, and the sellers of bottled water for"
" much more than that, there is nothing impossible at all about "
"<quote>competing with free.</quote> Indeed, if anything, the competition "
"spurs the competitors to offer new and better products. This is precisely "
"what the competitive market was to be about. Thus in Singapore, though "
"piracy is rampant, movie theaters are often luxurious&mdash;with "
"<quote>first class</quote> seats, and meals served while you watch a "
"movie&mdash;as they struggle and succeed in finding ways to compete with "
"<quote>free.</quote>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15290
msgid ""
"This regime of competition, with a backstop to assure that artists don't "
"lose, would facilitate a great deal of innovation in the delivery of "
"content. That competition would continue to shrink type A sharing. It would "
"inspire an extraordinary range of new innovators&mdash;ones who would have a"
" right to the content, and would no longer fear the uncertain and "
"barbarically severe punishments of the law."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15299
msgid "In summary, then, my proposal is this:"
msgstr ""

#.  PAGE BREAK 308
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15304
msgid ""
"The Internet is in transition. We should not be regulating a technology in "
"transition. We should instead be regulating to minimize the harm to "
"interests affected by this technological change, while enabling, and "
"encouraging, the most efficient technology we can create."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15311
msgid ""
"We can minimize that harm while maximizing the benefit to innovation by"
msgstr ""

#.  1.
#. type: Content of:
#. <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:15317
msgid "guaranteeing the right to engage in type D sharing;"
msgstr ""

#.  2.
#. type: Content of:
#. <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:15321
msgid ""
"permitting noncommercial type C sharing without liability, and commercial "
"type C sharing at a low and fixed rate set by statute;"
msgstr ""

#.  3.
#. type: Content of:
#. <book><chapter><section><section><orderedlist><listitem><para>
#: freeculture.xml:15327
msgid ""
"while in this transition, taxing and compensating for type A sharing, to the"
" extent actual harm is demonstrated."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15332
msgid ""
"But what if <quote>piracy</quote> doesn't disappear? What if there is a "
"competitive market providing content at a low cost, but a significant number"
" of consumers continue to <quote>take</quote> content for nothing? Should "
"the law do something then?"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15338
msgid ""
"Yes, it should. But, again, what it should do depends upon how the facts "
"develop. These changes may not eliminate type A sharing. But the real issue "
"is not whether it eliminates sharing in the abstract.  The real issue is its"
" effect on the market. Is it better (a) to have a technology that is 95 "
"percent secure and produces a market of size <citetitle>x</citetitle>, or "
"(b) to have a technology that is 50 percent secure but produces a market of "
"five times <citetitle>x</citetitle>? Less secure might produce more "
"unauthorized sharing, but it is likely to also produce a much bigger market "
"in authorized sharing. The most important thing is to assure artists' "
"compensation without breaking the Internet. Once that's assured, then it may"
" well be appropriate to find ways to track down the petty pirates."
msgstr ""

#.  PAGE BREAK 309
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15352
msgid ""
"But we're a long way away from whittling the problem down to this subset of "
"type A sharers. And our focus until we're there should not be on finding "
"ways to break the Internet. Our focus until we're there should be on how to "
"make sure the artists are paid, while protecting the space for innovation "
"and creativity that the Internet is."
msgstr ""

#. type: Content of: <book><chapter><section><section><title>
#: freeculture.xml:15363
msgid "5. Fire Lots of Lawyers"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15365
msgid ""
"I'm a lawyer. I make lawyers for a living. I believe in the law. I believe "
"in the law of copyright. Indeed, I have devoted my life to working in law, "
"not because there are big bucks at the end but because there are ideals at "
"the end that I would love to live."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15371
msgid ""
"Yet much of this book has been a criticism of lawyers, or the role lawyers "
"have played in this debate. The law speaks to ideals, but it is my view that"
" our profession has become too attuned to the client. And in a world where "
"the rich clients have one strong view, the unwillingness of the profession "
"to question or counter that one strong view queers the law."
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><primary>
#: freeculture.xml:15378
msgid "Nimmer, Melville"
msgstr ""

#. type: Content of: <book><chapter><section><section><indexterm><secondary>
#: freeculture.xml:15379
msgid "Supreme Court challenge of"
msgstr ""

#.  f10.
#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:15390
msgid ""
"Lawrence Lessig, <quote>Copyright's First Amendment</quote> (Melville B. "
"Nimmer Memorial Lecture), <citetitle>UCLA Law Review</citetitle> 48 (2001): "
"1057, 1069&ndash;70."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15381
msgid ""
"The evidence of this bending is compelling. I'm attacked as a "
"<quote>radical</quote> by many within the profession, yet the positions that"
" I am advocating are precisely the positions of some of the most moderate "
"and significant figures in the history of this branch of the law. Many, for "
"example, thought crazy the challenge that we brought to the Copyright Term "
"Extension Act. Yet just thirty years ago, the dominant scholar and "
"practitioner in the field of copyright, Melville Nimmer, thought it "
"obvious.<placeholder type=\"footnote\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15396
msgid ""
"However, my criticism of the role that lawyers have played in this debate is"
" not just about a professional bias. It is more importantly about our "
"failure to actually reckon the costs of the law."
msgstr ""

#. type: Content of: <book><chapter><section><section><para><footnote><para>
#: freeculture.xml:15406
msgid ""
"A good example is the work of Professor Stan Liebowitz. Liebowitz is to be "
"commended for his careful review of data about infringement, leading him to "
"question his own publicly stated position&mdash;twice. He initially "
"predicted that downloading would substantially harm the industry. He then "
"revised his view in light of the data, and he has since revised his view "
"again.  Compare Stan J. Liebowitz, <citetitle>Rethinking the Network "
"Economy: The True Forces That Drive the Digital Marketplace</citetitle> (New"
" York: Amacom, 2002), (reviewing his original view but expressing "
"skepticism) with Stan J.  Liebowitz, <quote>Will MP3s Annihilate the Record "
"Industry?</quote> working paper, June 2003, available at <ulink url=\"http"
"://free-culture.cc/notes/\">link #86</ulink>.  Liebowitz's careful analysis "
"is extremely valuable in estimating the effect of file-sharing technology. "
"In my view, however, he underestimates the costs of the legal system. See, "
"for example, <citetitle>Rethinking</citetitle>, 174&ndash;76.  <placeholder "
"type=\"indexterm\" id=\"0\"/>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15401
msgid ""
"Economists are supposed to be good at reckoning costs and benefits.  But "
"more often than not, economists, with no clue about how the legal system "
"actually functions, simply assume that the transaction costs of the legal "
"system are slight.<placeholder type=\"footnote\" id=\"0\"/> They see a "
"system that has been around for hundreds of years, and they assume it works "
"the way their elementary school civics class taught them it works."
msgstr ""

#.  PAGE BREAK 310
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15430
msgid ""
"But the legal system doesn't work. Or more accurately, it doesn't work for "
"anyone except those with the most resources. Not because the system is "
"corrupt. I don't think our legal system (at the federal level, at least) is "
"at all corrupt. I mean simply because the costs of our legal system are so "
"astonishingly high that justice can practically never be done."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15438
msgid ""
"These costs distort free culture in many ways. A lawyer's time is billed at "
"the largest firms at more than $400 per hour. How much time should such a "
"lawyer spend reading cases carefully, or researching obscure strands of "
"authority? The answer is the increasing reality: very little.  The law "
"depended upon the careful articulation and development of doctrine, but the "
"careful articulation and development of legal doctrine depends upon careful "
"work. Yet that careful work costs too much, except in the most high-profile "
"and costly cases."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15448
msgid ""
"The costliness and clumsiness and randomness of this system mock our "
"tradition. And lawyers, as well as academics, should consider it their duty "
"to change the way the law works&mdash;or better, to change the law so that "
"it works. It is wrong that the system works well only for the top 1 percent "
"of the clients. It could be made radically more efficient, and inexpensive, "
"and hence radically more just."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15456
msgid ""
"But until that reform is complete, we as a society should keep the law away "
"from areas that we know it will only harm. And that is precisely what the "
"law will too often do if too much of our culture is left to its review."
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15463
msgid ""
"Think about the amazing things your kid could do or make with digital "
"technology&mdash;the film, the music, the Web page, the blog. Or think about"
" the amazing things your community could facilitate with digital "
"technology&mdash;a wiki, a barn raising, activism to change something.  "
"Think about all those creative things, and then imagine cold molasses poured"
" onto the machines. This is what any regime that requires permission "
"produces. Again, this is the reality of Brezhnev's Russia."
msgstr ""

#.  PAGE BREAK 311
#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15472
msgid ""
"The law should regulate in certain areas of culture&mdash;but it should "
"regulate culture only where that regulation does good. Yet lawyers rarely "
"test their power, or the power they promote, against this simple pragmatic "
"question: <quote>Will it do good?</quote> When challenged about the "
"expanding reach of the law, the lawyer answers, <quote>Why not?</quote>"
msgstr ""

#. type: Content of: <book><chapter><section><section><para>
#: freeculture.xml:15481
msgid ""
"We should ask, <quote>Why?</quote> Show me why your regulation of culture is"
" needed. Show me how it does good. And until you can show me both, keep your"
" lawyers away."
msgstr ""

#. type: Content of: <book><chapter><title>
#: freeculture.xml:15490
msgid "NOTES"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:15492
msgid ""
"Throughout this text, there are references to links on the World Wide Web. "
"As anyone who has tried to use the Web knows, these links can be highly "
"unstable. I have tried to remedy the instability by redirecting readers to "
"the original source through the Web site associated with this book. For each"
" link below, you can go to http://free-culture.cc/notes and locate the "
"original source by clicking on the number after the # sign. If the original "
"link remains alive, you will be redirected to that link. If the original "
"link has disappeared, you will be redirected to an appropriate reference for"
" the material."
msgstr ""

#. type: Content of: <book><chapter><title>
#: freeculture.xml:15511
msgid "ACKNOWLEDGMENTS"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:15513
msgid ""
"This book is the product of a long and as yet unsuccessful struggle that "
"began when I read of Eric Eldred's war to keep books free. Eldred's work "
"helped launch a movement, the free culture movement, and it is to him that "
"this book is dedicated."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:15520
msgid ""
"I received guidance in various places from friends and academics, including "
"Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, Mark Rose, and "
"Kathleen Sullivan. And I received correction and guidance from many amazing "
"students at Stanford Law School and Stanford University. They included "
"Andrew B. Coan, John Eden, James P. Fellers, Christopher Guzelian, Erica "
"Goldberg, Robert Hallman, Andrew Harris, Matthew Kahn, Brian Link, Ohad "
"Mayblum, Alina Ng, and Erica Platt. I am particularly grateful to Catherine "
"Crump and Harry Surden, who helped direct their research, and to Laura "
"Lynch, who brilliantly managed the army that they assembled, and provided "
"her own critical eye on much of this."
msgstr ""

#. PAGE BREAK 337
#. type: Content of: <book><chapter><para>
#: freeculture.xml:15533
msgid ""
"Yuko Noguchi helped me to understand the laws of Japan as well as its "
"culture. I am thankful to her, and to the many in Japan who helped me "
"prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki, Michihiro "
"Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro Yonezawa. I am "
"thankful as well as to Professor Nobuhiro Nakayama, and the Tokyo University"
" Business Law Center, for giving me the chance to spend time in Japan, and "
"to Tadashi Shiraishi and Kiyokazu Yamagami for their generous help while I "
"was there."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:15544
msgid ""
"These are the traditional sorts of help that academics regularly draw upon. "
"But in addition to them, the Internet has made it possible to receive advice"
" and correction from many whom I have never even met. Among those who have "
"responded with extremely helpful advice to requests on my blog about the "
"book are Dr. Mohammad Al-Ubaydli, David Gerstein, and Peter DiMauro, as well"
" as a long list of those who had specific ideas about ways to develop my "
"argument. They included Richard Bondi, Steven Cherry, David Coe, Nik "
"Cubrilovic, Bob Devine, Charles Eicher, Thomas Guida, Elihu M. Gerson, "
"Jeremy Hunsinger, Vaughn Iverson, John Karabaic, Jeff Keltner, James "
"Lindenschmidt, K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan"
" McMullen, Fred Norton, John Pormann, Pedro A. D.  Rezende, Shabbir Safdar, "
"Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker, Chris Smith, "
"Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt Wasserman, Miljenko "
"Williams, <quote>Wink,</quote> Roger Wood, <quote>Ximmbo da Jazz,</quote> "
"and Richard Yanco. (I apologize if I have missed anyone; with computers come"
" glitches, and a crash of my e-mail system meant I lost a bunch of great "
"replies.)"
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:15564
msgid ""
"Richard Stallman and Michael Carroll each read the whole book in draft, and "
"each provided extremely helpful correction and advice.  Michael helped me to"
" see more clearly the significance of the regulation of derivitive works. "
"And Richard corrected an embarrassingly large number of errors. While my "
"work is in part inspired by Stallman's, he does not agree with me in "
"important places throughout this book."
msgstr ""

#. type: Content of: <book><chapter><para>
#: freeculture.xml:15573
msgid ""
"Finally, and forever, I am thankful to Bettina, who has always insisted that"
" there would be unending happiness away from these battles, and who has "
"always been right. This slow learner is, as ever, grateful for her perpetual"
" patience and love."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:15584
msgid "This digital book was published by Petter Reinholdtsen in 2014."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:15587
msgid ""
"The original hardcover paper book was published in 2004 by The Penguin "
"Press, a member of Penguin Group (USA) Inc. 375 Hudson Street New York, New "
"York."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:15592
msgid "Copyright &copy; Lawrence Lessig.  Some rights reserved."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:15602
msgid ""
"Excerpt from an editorial titled <quote>The Coming of Copyright "
"Perpetuity,</quote> <citetitle>The New York Times</citetitle>, January 16, "
"2003. Copyright &copy; 2003 by The New York Times Co.  Reprinted with "
"permission."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:15608
msgid ""
"Cartoon in <xref linkend=\"fig-1711-vcr-handgun-cartoonfig\"/> by Paul "
"Conrad, copyright Tribune Media Services, Inc.  All rights reserved. "
"Reprinted with permission."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:15613
msgid ""
"Diagram in <xref linkend=\"fig-1761-pattern-modern-media-ownership\"/> "
"courtesy of the office of FCC Commissioner, Michael J. Copps."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:15617
msgid "Library of Congress Cataloging-in-Publication Data"
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:15620
msgid ""
"Lessig, Lawrence.  Free culture : how big media uses technology and the law "
"to lock down culture and control creativity / Lawrence Lessig."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:15625
msgid "p. cm."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:15628
msgid "Includes index."
msgstr ""

#. type: Content of:
#. <book><colophon><para><informaltable><tgroup><thead><row><entry>
#: freeculture.xml:15636
msgid "ISBN"
msgstr ""

#. type: Content of:
#. <book><colophon><para><informaltable><tgroup><thead><row><entry>
#: freeculture.xml:15637
msgid "Format / MIME-type"
msgstr ""

#. type: Content of:
#. <book><colophon><para><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:15642 freeculture.xml:15647 freeculture.xml:15651
#: freeculture.xml:15655 freeculture.xml:15659 freeculture.xml:15663
msgid "978-82-92812-XX-Y"
msgstr ""

#. type: Content of:
#. <book><colophon><para><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:15643
msgid "text/plain"
msgstr ""

#. type: Content of:
#. <book><colophon><para><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:15648
msgid "application/pdf"
msgstr ""

#. type: Content of:
#. <book><colophon><para><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:15652
msgid "text/html"
msgstr ""

#. type: Content of:
#. <book><colophon><para><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:15656
msgid "application/epub+zip"
msgstr ""

#. type: Content of:
#. <book><colophon><para><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:15660
msgid "application/docbook+xml"
msgstr ""

#. type: Content of:
#. <book><colophon><para><informaltable><tgroup><tbody><row><entry>
#: freeculture.xml:15664
msgid "application/x-mobipocket-ebook"
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:15672
msgid "1. Intellectual property&mdash;United States."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:15675
msgid "2. Mass media&mdash;United States."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:15678
msgid "3. Technological innovations&mdash;United States."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:15681
msgid "4. Art&mdash;United States. I. Title."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:15684
msgid "KF2979.L47 2004"
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:15687
msgid "343.7309'9&mdash;dc22 2003063276"
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:15691
msgid ""
"The source of this version of the text is written using DocBook notation and"
" the other formats are derived from the DocBook source.  The DocBook source "
"is based on a DocBook XML version created by Hans Schou, and extended with "
"formatting and index references by Petter Reinholdtsen.  The source files of"
" this book is available as <ulink "
"url=\"https://github.com/petterreinholdtsen/free-culture-lessig\">a github "
"project</ulink>."
msgstr ""

#. type: Content of: <book><colophon><para>
#: freeculture.xml:15701
msgid "&translationblock;"
msgstr ""