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   1 <html><head><meta http-equiv="Content-Type" content="text/html; charset=ISO-8859-1"><title>Free Culture</title><meta name="generator" content="DocBook XSL Stylesheets V1.78.1"><meta name="description" content="About the author Lawrence Lessig (http://www.lessig.org), 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 (http://creativecommons.org). The author of The Future of Ideas (Random House, 2001) and Code: And Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of the boards of the Public Library of Science, the Electronic Frontier Foundation, and Public Knowledge. He was the winner of the Free Software Foundation's Award for the Advancement of Free Software, twice listed in BusinessWeek's e.biz 25, and named one of Scientific American's 50 visionaries. A graduate of the University of Pennsylvania, Cambridge University, and Yale Law School, Lessig clerked for Judge Richard Posner of the U.S. Seventh Circuit Court of Appeals."></head><body bgcolor="white" text="black" link="#0000FF" vlink="#840084" alink="#0000FF"><div lang="en" class="book"><div class="titlepage"><div><div><h1 class="title"><a name="index"></a>Free Culture</h1></div><div><h2 class="subtitle">How big media uses technology and the law to lock down
   2  culture and control creativity</h2></div><div><div class="authorgroup"><div class="author"><h3 class="author"><span class="firstname">Lawrence</span> <span class="surname">Lessig</span></h3></div></div></div><div><p class="releaseinfo">Version 2004-02-10</p></div><div><p class="copyright">Copyright © 2004 Lawrence Lessig</p></div><div><div class="legalnotice"><a name="idp337216"></a><p>
   3      <span class="inlinemediaobject"><img src="images/cc.png" align="middle" height="38" alt="Creative Commons, Some rights reserved"></span>
   4    </p><p>
   5 This book is licensed under a Creative Commons license. This license
   6 permits non-commercial use of this work, so long as attribution is
   7 given.  For more information about the license visit
   8 <a class="ulink" href="http://creativecommons.org/licenses/by-nc/1.0/" target="_top">http://creativecommons.org/licenses/by-nc/1.0/</a>
   9    </p></div></div><div><p class="pubdate">2004-03-25</p></div><div><div class="abstract"><p class="title"><b>About the author</b></p><p>
  10 Lawrence Lessig
  11 (<a class="ulink" href="http://www.lessig.org" target="_top">http://www.lessig.org</a>),
  12 professor of law and a John A. Wilson Distinguished Faculty Scholar
  13 at Stanford Law School, is founder of the Stanford Center for Internet
  14 and Society and is chairman of the Creative Commons
  15 (<a class="ulink" href="http://creativecommons.org" target="_top">http://creativecommons.org</a>).
  16 The author of The Future of Ideas (Random House, 2001) and Code: And
  17 Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of
  18 the boards of the Public Library of Science, the Electronic Frontier
  19 Foundation, and Public Knowledge. He was the winner of the Free
  20 Software Foundation's Award for the Advancement of Free Software,
  21 twice listed in BusinessWeek's <span class="quote">«<span class="quote">e.biz 25,</span>»</span> and named one of Scientific
  22 American's <span class="quote">«<span class="quote">50 visionaries.</span>»</span> A graduate of the University of
  23 Pennsylvania, Cambridge University, and Yale Law School, Lessig
  24 clerked for Judge Richard Posner of the U.S. Seventh Circuit Court of
  25 Appeals.
  26   </p></div></div></div><hr></div><div class="dedication"><div class="titlepage"><div><div><h1 class="title"><a name="alsobylessig"></a>
  27 Also by Lawrence Lessig
  28 </h1></div></div></div><div class="itemizedlist"><ul class="itemizedlist" style="list-style-type: disc; "><li class="listitem"><p>
  29
  30 The USA is lesterland: The nature of congressional corruption
  31 </p></li><li class="listitem"><p>
  32
  33 Republic, lost: How money corrupts Congress - and a plan to stop it
  34 </p></li><li class="listitem"><p>
  35
  36 Remix: Making art and commerce thrive in the hybrid economy
  37 </p></li><li class="listitem"><p>
  38
  39 Code: Version 2.0
  40 </p></li><li class="listitem"><p>
  41
  42 The Future of Ideas: The Fate of the Commons in a Connected World
  43 </p></li><li class="listitem"><p>
  44
  45 Code: And Other Laws of Cyberspace
  46 </p></li></ul></div></div><div class="dedication"><div class="titlepage"><div><div><h1 class="title"><a name="idp5736736"></a></h1></div></div></div><p>
  47 To Eric Eldred &#8212; whose work first drew me to this cause, and for whom
  48 it continues still.
  49 </p></div><div class="toc"><dl class="toc"><dt><span class="preface"><a href="#preface">Preface</a></span></dt><dt><span class="chapter"><a href="#c-introduction">Introduction</a></span></dt><dt><span class="part">I. <a href="#c-piracy"><span class="quote">«<span class="quote">Piracy</span>»</span></a></span></dt><dd><dl><dt><span class="chapter">1. <a href="#creators">Chapter One: Creators</a></span></dt><dt><span class="chapter">2. <a href="#mere-copyists">Chapter Two: <span class="quote">«<span class="quote">Mere Copyists</span>»</span></a></span></dt><dt><span class="chapter">3. <a href="#catalogs">Chapter Three: Catalogs</a></span></dt><dt><span class="chapter">4. <a href="#pirates">Chapter Four: <span class="quote">«<span class="quote">Pirates</span>»</span></a></span></dt><dd><dl><dt><span class="section">4.1. <a href="#film">Film</a></span></dt><dt><span class="section">4.2. <a href="#recordedmusic">Recorded Music</a></span></dt><dt><span class="section">4.3. <a href="#radio">Radio</a></span></dt><dt><span class="section">4.4. <a href="#cabletv">Cable TV</a></span></dt></dl></dd><dt><span class="chapter">5. <a href="#piracy">Chapter Five: <span class="quote">«<span class="quote">Piracy</span>»</span></a></span></dt><dd><dl><dt><span class="section">5.1. <a href="#piracy-i">Piracy I</a></span></dt><dt><span class="section">5.2. <a href="#piracy-ii">Piracy II</a></span></dt></dl></dd></dl></dd><dt><span class="part">II. <a href="#c-property"><span class="quote">«<span class="quote">Property</span>»</span></a></span></dt><dd><dl><dt><span class="chapter">6. <a href="#founders">Chapter Six: Founders</a></span></dt><dt><span class="chapter">7. <a href="#recorders">Chapter Seven: Recorders</a></span></dt><dt><span class="chapter">8. <a href="#transformers">Chapter Eight: Transformers</a></span></dt><dt><span class="chapter">9. <a href="#collectors">Chapter Nine: Collectors</a></span></dt><dt><span class="chapter">10. <a href="#property-i">Chapter Ten: <span class="quote">«<span class="quote">Property</span>»</span></a></span></dt><dd><dl><dt><span class="section">10.1. <a href="#hollywood">Why Hollywood Is Right</a></span></dt><dt><span class="section">10.2. <a href="#beginnings">Beginnings</a></span></dt><dt><span class="section">10.3. <a href="#lawduration">Law: Duration</a></span></dt><dt><span class="section">10.4. <a href="#lawscope">Law: Scope</a></span></dt><dt><span class="section">10.5. <a href="#lawreach">Law and Architecture: Reach</a></span></dt><dt><span class="section">10.6. <a href="#lawforce">Architecture and Law: Force</a></span></dt><dt><span class="section">10.7. <a href="#marketconcentration">Market: Concentration</a></span></dt><dt><span class="section">10.8. <a href="#together">Together</a></span></dt></dl></dd></dl></dd><dt><span class="part">III. <a href="#c-puzzles">Puzzles</a></span></dt><dd><dl><dt><span class="chapter">11. <a href="#chimera">Chapter Eleven: Chimera</a></span></dt><dt><span class="chapter">12. <a href="#harms">Chapter Twelve: Harms</a></span></dt><dd><dl><dt><span class="section">12.1. <a href="#constrain">Constraining Creators</a></span></dt><dt><span class="section">12.2. <a href="#innovators">Constraining Innovators</a></span></dt><dt><span class="section">12.3. <a href="#corruptingcitizens">Corrupting Citizens</a></span></dt></dl></dd></dl></dd><dt><span class="part">IV. <a href="#c-balances">Balances</a></span></dt><dd><dl><dt><span class="chapter">13. <a href="#eldred">Chapter Thirteen: Eldred</a></span></dt><dt><span class="chapter">14. <a href="#eldred-ii">Chapter Fourteen: Eldred II</a></span></dt></dl></dd><dt><span class="chapter"><a href="#c-conclusion">Conclusion</a></span></dt><dt><span class="chapter"><a href="#c-afterword">Afterword</a></span></dt><dd><dl><dt><span class="section">1. <a href="#usnow">Us, now</a></span></dt><dd><dl><dt><span class="section">1.1. <a href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></span></dt><dt><span class="section">1.2. <a href="#oneidea">Rebuilding Free Culture: One Idea</a></span></dt></dl></dd><dt><span class="section">2. <a href="#themsoon">Them, soon</a></span></dt><dd><dl><dt><span class="section">2.1. <a href="#formalities">1. More Formalities</a></span></dt><dd><dl><dt><span class="section">2.1.1. <a href="#registration">Registration and renewal</a></span></dt><dt><span class="section">2.1.2. <a href="#marking">Marking</a></span></dt></dl></dd><dt><span class="section">2.2. <a href="#shortterms">2. Shorter Terms</a></span></dt><dt><span class="section">2.3. <a href="#freefairuse">3. Free Use Vs. Fair Use</a></span></dt><dt><span class="section">2.4. <a href="#liberatemusic">4. Liberate the Music&#8212;Again</a></span></dt><dt><span class="section">2.5. <a href="#firelawyers">5. Fire Lots of Lawyers</a></span></dt></dl></dd></dl></dd><dt><span class="chapter"><a href="#c-notes">Notes</a></span></dt><dt><span class="chapter"><a href="#c-acknowledgments">Acknowledgments</a></span></dt><dt><span class="index"><a href="#idp10793056">Index</a></span></dt></dl></div><div class="preface"><div class="titlepage"><div><div><h1 class="title"><a name="preface"></a>Preface</h1></div></div></div><a class="indexterm" name="idxpoguedavid"></a><p>
  50 <span class="bold"><strong>At the end</strong></span> of his review of my first
  51 book, <em class="citetitle">Code: And Other Laws of Cyberspace</em>, David
  52 Pogue, a brilliant writer and author of countless technical and
  53 computer-related texts, wrote this:
  54 </p><div class="blockquote"><blockquote class="blockquote"><p>
  55 Unlike actual law, Internet software has no capacity to punish. It
  56 doesn't affect people who aren't online (and only a tiny minority
  57 of the world population is). And if you don't like the Internet's
  58 system, you can always flip off the modem.<a href="#ftn.preface01" class="footnote" name="preface01"><sup class="footnote">[1]</sup></a>
  59 </p></blockquote></div><p>
  60 Pogue was skeptical of the core argument of the book&#8212;that
  61 software, or <span class="quote">«<span class="quote">code,</span>»</span> functioned as a kind of law&#8212;and his review
  62 suggested the happy thought that if life in cyberspace got bad, we
  63 could always <span class="quote">«<span class="quote">drizzle, drazzle, druzzle, drome</span>»</span>-like simply flip a
  64 switch and be back home. Turn off the modem, unplug the computer, and
  65 any troubles that exist in <span class="emphasis"><em>that</em></span> space wouldn't
  66 <span class="quote">«<span class="quote">affect</span>»</span> us anymore.
  67 </p><p>
  68 Pogue might have been right in 1999&#8212;I'm skeptical, but maybe.
  69 But even if he was right then, the point is not right now:
  70 <em class="citetitle">Free Culture</em> is about the troubles the Internet
  71 causes even after the modem is turned
  72
  73 off. It is an argument about how the battles that now rage regarding life
  74 on-line have fundamentally affected <span class="quote">«<span class="quote">people who aren't online.</span>»</span> There
  75 is no switch that will insulate us from the Internet's effect.
  76 </p><a class="indexterm" name="idp189728"></a><p>
  77 But unlike <em class="citetitle">Code</em>, the argument here is not much
  78 about the Internet itself. It is instead about the consequence of the
  79 Internet to a part of our tradition that is much more fundamental,
  80 and, as hard as this is for a geek-wanna-be to admit, much more
  81 important.
  82 </p><p>
  83 That tradition is the way our culture gets made. As I explain in the
  84 pages that follow, we come from a tradition of <span class="quote">«<span class="quote">free culture</span>»</span>&#8212;not
  85 <span class="quote">«<span class="quote">free</span>»</span> as in <span class="quote">«<span class="quote">free beer</span>»</span> (to borrow a phrase from the founder of the
  86 free software movement<a href="#ftn.idp6864992" class="footnote" name="idp6864992"><sup class="footnote">[2]</sup></a>), but <span class="quote">«<span class="quote">free</span>»</span> as in <span class="quote">«<span class="quote">free speech,</span>»</span> <span class="quote">«<span class="quote">free markets,</span>»</span>
  87 <span class="quote">«<span class="quote">free trade,</span>»</span> <span class="quote">«<span class="quote">free enterprise,</span>»</span> <span class="quote">«<span class="quote">free will,</span>»</span> and <span class="quote">«<span class="quote">free elections.</span>»</span> A
  88 free culture supports and protects creators and innovators. It does
  89 this directly by granting intellectual property rights. But it does so
  90 indirectly by limiting the reach of those rights, to guarantee that
  91 follow-on creators and innovators remain <span class="emphasis"><em>as free as
  92 possible</em></span> from the control of the past. A free culture is
  93 not a culture without property, just as a free market is not a market
  94 in which everything is free. The opposite of a free culture is a
  95 <span class="quote">«<span class="quote">permission culture</span>»</span>&#8212;a culture in which creators get to create
  96 only with the permission of the powerful, or of creators from the
  97 past.
  98 </p><p>
  99 If we understood this change, I believe we would resist it. Not <span class="quote">«<span class="quote">we</span>»</span>
 100 on the Left or <span class="quote">«<span class="quote">you</span>»</span> on the Right, but we who have no stake in the
 101 particular industries of culture that defined the twentieth century.
 102 Whether you are on the Left or the Right, if you are in this sense
 103 disinterested, then the story I tell here will trouble you. For the
 104 changes I describe affect values that both sides of our political
 105 culture deem fundamental.
 106 </p><a class="indexterm" name="idxpowerconcentrationof"></a><a class="indexterm" name="idp6872944"></a><a class="indexterm" name="idp6873696"></a><a class="indexterm" name="idp6874448"></a><p>
 107 We saw a glimpse of this bipartisan outrage in the early summer of
 108 2003. As the FCC considered changes in media ownership rules that
 109 would relax limits on media concentration, an extraordinary coalition
 110 generated more than 700,000 letters to the FCC opposing the change.
 111 As William Safire described marching <span class="quote">«<span class="quote">uncomfortably alongside CodePink
 112 Women for Peace and the National Rifle Association, between liberal
 113 Olympia Snowe and conservative Ted Stevens,</span>»</span> he formulated perhaps
 114 most simply just what was at stake: the concentration of power. And as
 115 he asked,
 116 </p><div class="blockquote"><blockquote class="blockquote"><p>
 117 Does that sound unconservative? Not to me. The concentration of
 118 power&#8212;political, corporate, media, cultural&#8212;should be anathema to
 119 conservatives. The diffusion of power through local control, thereby
 120 encouraging individual participation, is the essence of federalism and
 121 the greatest expression of democracy.<a href="#ftn.idp6869824" class="footnote" name="idp6869824"><sup class="footnote">[3]</sup></a>
 122 </p></blockquote></div><p>
 123 This idea is an element of the argument of <em class="citetitle">Free Culture</em>, though my
 124 focus is not just on the concentration of power produced by
 125 concentrations in ownership, but more importantly, if because less
 126 visibly, on the concentration of power produced by a radical change in
 127 the effective scope of the law. The law is changing; that change is
 128 altering the way our culture gets made; that change should worry
 129 you&#8212;whether or not you care about the Internet, and whether you're on
 130 Safire's left or on his right.
 131 </p><a class="indexterm" name="idp6880352"></a><p>
 132 <span class="strong"><strong>The inspiration</strong></span> for the title and for
 133 much of the argument of this book comes from the work of Richard
 134 Stallman and the Free Software Foundation. Indeed, as I reread
 135 Stallman's own work, especially the essays in <em class="citetitle">Free Software, Free
 136 Society</em>, I realize that all of the theoretical insights I develop here
 137 are insights Stallman described decades ago. One could thus well argue
 138 that this work is <span class="quote">«<span class="quote">merely</span>»</span> derivative.
 139 </p><p>
 140 I accept that criticism, if indeed it is a criticism. The work of a
 141 lawyer is always derivative, and I mean to do nothing more in this
 142 book than to remind a culture about a tradition that has always been
 143 its own.  Like Stallman, I defend that tradition on the basis of
 144 values. Like Stallman, I believe those are the values of freedom. And
 145 like Stallman, I believe those are values of our past that will need
 146 to be defended in our future. A free culture has been our past, but it
 147 will only be our future if we change the path we are on right now.
 148
 149
 150 Like Stallman's arguments for free software, an argument for free
 151 culture stumbles on a confusion that is hard to avoid, and even harder
 152 to understand. A free culture is not a culture without property; it is not
 153 a culture in which artists don't get paid. A culture without property, or
 154 in which creators can't get paid, is anarchy, not freedom. Anarchy is not
 155 what I advance here.
 156 </p><p>
 157 Instead, the free culture that I defend in this book is a balance
 158 between anarchy and control. A free culture, like a free market, is
 159 filled with property. It is filled with rules of property and contract
 160 that get enforced by the state. But just as a free market is perverted
 161 if its property becomes feudal, so too can a free culture be queered
 162 by extremism in the property rights that define it. That is what I
 163 fear about our culture today. It is against that extremism that this
 164 book is written.
 165 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.preface01" class="footnote"><p><a href="#preface01" class="para"><sup class="para">[1] </sup></a>
 166 David Pogue, <span class="quote">«<span class="quote">Don't Just Chat, Do Something,</span>»</span> <em class="citetitle">New York Times</em>, 30 January 2000.
 167 </p></div><div id="ftn.idp6864992" class="footnote"><p><a href="#idp6864992" class="para"><sup class="para">[2] </sup></a>
 168 Richard M. Stallman, <em class="citetitle">Free Software, Free Societies</em> 57 (Joshua Gay, ed. 2002).
 169 </p></div><div id="ftn.idp6869824" class="footnote"><p><a href="#idp6869824" class="para"><sup class="para">[3] </sup></a> William Safire,
 170 <span class="quote">«<span class="quote">The Great Media Gulp,</span>»</span> <em class="citetitle">New York Times</em>, 22 May 2003.
 171 <a class="indexterm" name="idp6878576"></a>
 172 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-introduction"></a>Chapter . Introduction</h1></div></div></div><a class="indexterm" name="idxwrightbrothers"></a><p>
 173 <span class="strong"><strong>On December 17</strong></span>, 1903, on a windy North Carolina beach for just
 174 shy of one hundred seconds, the Wright brothers demonstrated that a
 175 heavier-than-air, self-propelled vehicle could fly. The moment was electric
 176 and its importance widely understood. Almost immediately, there
 177 was an explosion of interest in this newfound technology of manned
 178 flight, and a gaggle of innovators began to build upon it.
 179 </p><a class="indexterm" name="idxairtrafficlandownershipvs"></a><a class="indexterm" name="idxlandownershipairtrafficand"></a><a class="indexterm" name="idxpropertyrightsairtrafficvs"></a><p>
 180 At the time the Wright brothers invented the airplane, American
 181 law held that a property owner presumptively owned not just the surface
 182 of his land, but all the land below, down to the center of the earth,
 183 and all the space above, to <span class="quote">«<span class="quote">an indefinite extent, upwards.</span>»</span><a href="#ftn.idp6895696" class="footnote" name="idp6895696"><sup class="footnote">[4]</sup></a>
 184 For many
 185 years, scholars had puzzled about how best to interpret the idea that
 186 rights in land ran to the heavens. Did that mean that you owned the
 187 stars? Could you prosecute geese for their willful and regular trespass?
 188 </p><a class="indexterm" name="idp6896960"></a><p>
 189 Then came airplanes, and for the first time, this principle of American
 190 law&#8212;deep within the foundations of our tradition, and acknowledged
 191 by the most important legal thinkers of our past&#8212;mattered. If
 192 my land reaches to the heavens, what happens when United flies over
 193 my field? Do I have the right to banish it from my property? Am I allowed
 194 to enter into an exclusive license with Delta Airlines? Could we
 195 set up an auction to decide how much these rights are worth?
 196 </p><a class="indexterm" name="idp6898816"></a><a class="indexterm" name="idp6899568"></a><p>
 197 In 1945, these questions became a federal case. When North Carolina
 198 farmers Thomas Lee and Tinie Causby started losing chickens
 199 because of low-flying military aircraft (the terrified chickens apparently
 200 flew into the barn walls and died), the Causbys filed a lawsuit saying
 201 that the government was trespassing on their land. The airplanes,
 202 of course, never touched the surface of the Causbys' land. But if, as
 203 Blackstone, Kent, and Coke had said, their land reached to <span class="quote">«<span class="quote">an indefinite
 204 extent, upwards,</span>»</span> then the government was trespassing on their
 205 property, and the Causbys wanted it to stop.
 206 </p><a class="indexterm" name="idp6901680"></a><a class="indexterm" name="idp6902432"></a><a class="indexterm" name="idxdouglaswilliamo"></a><a class="indexterm" name="idxsupremecourtusonairspacevslandrights"></a><p>
 207 The Supreme Court agreed to hear the Causbys' case. Congress had
 208 declared the airways public, but if one's property really extended to the
 209 heavens, then Congress's declaration could well have been an unconstitutional
 210 <span class="quote">«<span class="quote">taking</span>»</span> of property without compensation. The Court acknowledged
 211 that <span class="quote">«<span class="quote">it is ancient doctrine that common law ownership of
 212 the land extended to the periphery of the universe.</span>»</span> But Justice Douglas
 213 had no patience for ancient doctrine. In a single paragraph, hundreds of
 214 years of property law were erased. As he wrote for the Court,
 215 </p><div class="blockquote"><blockquote class="blockquote"><p>
 216 [The] doctrine has no place in the modern world. The air is a
 217 public highway, as Congress has declared. Were that not true,
 218 every transcontinental flight would subject the operator to countless
 219 trespass suits. Common sense revolts at the idea. To recognize
 220 such private claims to the airspace would clog these highways,
 221 seriously interfere with their control and development in the public
 222 interest, and transfer into private ownership that to which only
 223 the public has a just claim.<a href="#ftn.idp6909088" class="footnote" name="idp6909088"><sup class="footnote">[5]</sup></a>
 224 </p></blockquote></div><p>
 225 <span class="quote">«<span class="quote">Common sense revolts at the idea.</span>»</span>
 226 </p><a class="indexterm" name="idp6914336"></a><p>
 227 This is how the law usually works. Not often this abruptly or
 228 impatiently, but eventually, this is how it works. It was Douglas's style not to
 229 dither. Other justices would have blathered on for pages to reach the
 230
 231 conclusion that Douglas holds in a single line: <span class="quote">«<span class="quote">Common sense revolts
 232 at the idea.</span>»</span> But whether it takes pages or a few words, it is the special
 233 genius of a common law system, as ours is, that the law adjusts to the
 234 technologies of the time. And as it adjusts, it changes. Ideas that were
 235 as solid as rock in one age crumble in another.
 236 </p><a class="indexterm" name="idp6917216"></a><a class="indexterm" name="idp6918000"></a><a class="indexterm" name="idp6918816"></a><p>
 237 Or at least, this is how things happen when there's no one powerful
 238 on the other side of the change. The Causbys were just farmers. And
 239 though there were no doubt many like them who were upset by the
 240 growing traffic in the air (though one hopes not many chickens flew
 241 themselves into walls), the Causbys of the world would find it very
 242 hard to unite and stop the idea, and the technology, that the Wright
 243 brothers had birthed. The Wright brothers spat airplanes into the
 244 technological meme pool; the idea then spread like a virus in a chicken
 245 coop; farmers like the Causbys found themselves surrounded by <span class="quote">«<span class="quote">what
 246 seemed reasonable</span>»</span> given the technology that the Wrights had produced.
 247 They could stand on their farms, dead chickens in hand, and
 248 shake their fists at these newfangled technologies all they wanted.
 249 They could call their representatives or even file a lawsuit. But in the
 250 end, the force of what seems <span class="quote">«<span class="quote">obvious</span>»</span> to everyone else&#8212;the power of
 251 <span class="quote">«<span class="quote">common sense</span>»</span>&#8212;would prevail. Their <span class="quote">«<span class="quote">private interest</span>»</span> would not be
 252 allowed to defeat an obvious public gain.
 253 </p><a class="indexterm" name="idp6922704"></a><a class="indexterm" name="idp6924032"></a><a class="indexterm" name="idp6925376"></a><a class="indexterm" name="idp6926352"></a><a class="indexterm" name="idxarmstrongedwinhoward"></a><a class="indexterm" name="idp6928560"></a><a class="indexterm" name="idp6929312"></a><a class="indexterm" name="idp6930064"></a><a class="indexterm" name="idxradiofmspectrumof"></a><p>
 254 <span class="strong"><strong>Edwin Howard Armstrong</strong></span> is one of
 255 America's forgotten inventor geniuses. He came to the great American
 256 inventor scene just after the titans Thomas Edison and Alexander
 257 Graham Bell. But his work in the area of radio technology was perhaps
 258 the most important of any single inventor in the first fifty years of
 259 radio. He was better educated than Michael Faraday, who as a
 260 bookbinder's apprentice had discovered electric induction in 1831. But
 261 he had the same intuition about how the world of radio worked, and on
 262 at least three occasions, Armstrong invented profoundly important
 263 technologies that advanced our understanding of radio.
 264
 265 </p><p>
 266 On the day after Christmas, 1933, four patents were issued to Armstrong
 267 for his most significant invention&#8212;FM radio. Until then, consumer radio
 268 had been amplitude-modulated (AM) radio. The theorists
 269 of the day had said that frequency-modulated (FM) radio could never
 270 work. They were right about FM radio in a narrow band of spectrum.
 271 But Armstrong discovered that frequency-modulated radio in a wide
 272 band of spectrum would deliver an astonishing fidelity of sound, with
 273 much less transmitter power and static.
 274 </p><p>
 275 On November 5, 1935, he demonstrated the technology at a meeting of
 276 the Institute of Radio Engineers at the Empire State Building in New
 277 York City. He tuned his radio dial across a range of AM stations,
 278 until the radio locked on a broadcast that he had arranged from
 279 seventeen miles away. The radio fell totally silent, as if dead, and
 280 then with a clarity no one else in that room had ever heard from an
 281 electrical device, it produced the sound of an announcer's voice:
 282 <span class="quote">«<span class="quote">This is amateur station W2AG at Yonkers, New York, operating on
 283 frequency modulation at two and a half meters.</span>»</span>
 284 </p><p>
 285 The audience was hearing something no one had thought possible:
 286 </p><div class="blockquote"><blockquote class="blockquote"><p>
 287 A glass of water was poured before the microphone in Yonkers; it
 288 sounded like a glass of water being poured. &#8230; A paper was crumpled
 289 and torn; it sounded like paper and not like a crackling forest
 290 fire. &#8230; Sousa marches were played from records and a piano solo
 291 and guitar number were performed. &#8230; The music was projected with a
 292 live-ness rarely if ever heard before from a radio <span class="quote">«<span class="quote">music
 293 box.</span>»</span><a href="#ftn.idp6938592" class="footnote" name="idp6938592"><sup class="footnote">[6]</sup></a>
 294 </p></blockquote></div><a class="indexterm" name="idxrca"></a><a class="indexterm" name="idxmediaownershipconcentrationin"></a><p>
 295 As our own common sense tells us, Armstrong had discovered a vastly
 296 superior radio technology. But at the time of his invention, Armstrong
 297 was working for RCA. RCA was the dominant player in the then dominant
 298 AM radio market. By 1935, there were a thousand radio stations across
 299 the United States, but the stations in large cities were all owned by
 300 a handful of networks.
 301
 302 </p><a class="indexterm" name="idp6944384"></a><p>
 303 RCA's president, David Sarnoff, a friend of Armstrong's, was eager
 304 that Armstrong discover a way to remove static from AM radio. So
 305 Sarnoff was quite excited when Armstrong told him he had a device
 306 that removed static from <span class="quote">«<span class="quote">radio.</span>»</span> But when Armstrong demonstrated
 307 his invention, Sarnoff was not pleased.
 308 </p><div class="blockquote"><blockquote class="blockquote"><p>
 309 I thought Armstrong would invent some kind of a filter to remove
 310 static from our AM radio. I didn't think he'd start a
 311 revolution&#8212; start up a whole damn new industry to compete with
 312 RCA.<a href="#ftn.idp6935184" class="footnote" name="idp6935184"><sup class="footnote">[7]</sup></a>
 313 </p></blockquote></div><a class="indexterm" name="idxfmradio"></a><a class="indexterm" name="idp6950320"></a><p>
 314 Armstrong's invention threatened RCA's AM empire, so the company
 315 launched a campaign to smother FM radio. While FM may have been a
 316 superior technology, Sarnoff was a superior tactician.  As one author
 317 described,
 318 </p><a class="indexterm" name="idxlessinglawrence"></a><div class="blockquote"><blockquote class="blockquote"><p>
 319 The forces for FM, largely engineering, could not overcome the weight
 320 of strategy devised by the sales, patent, and legal offices to subdue
 321 this threat to corporate position. For FM, if allowed to develop
 322 unrestrained, posed &#8230; a complete reordering of radio power
 323 &#8230; and the eventual overthrow of the carefully restricted AM system
 324 on which RCA had grown to power.<a href="#ftn.idp6953856" class="footnote" name="idp6953856"><sup class="footnote">[8]</sup></a>
 325 </p></blockquote></div><a class="indexterm" name="idxfcconfmradio"></a><p>
 326 RCA at first kept the technology in house, insisting that further
 327 tests were needed. When, after two years of testing, Armstrong grew
 328 impatient, RCA began to use its power with the government to stall
 329 FM radio's deployment generally. In 1936, RCA hired the former head
 330 of the FCC and assigned him the task of assuring that the FCC assign
 331 spectrum in a way that would castrate FM&#8212;principally by moving FM
 332 radio to a different band of spectrum. At first, these efforts failed. But
 333 when Armstrong and the nation were distracted by World War II,
 334 RCA's work began to be more successful. Soon after the war ended, the
 335 FCC announced a set of policies that would have one clear effect: FM
 336 radio would be crippled. As Lawrence Lessing described it,
 337 </p><div class="blockquote"><blockquote class="blockquote"><p>
 338 The series of body blows that FM radio received right after the
 339 war, in a series of rulings manipulated through the FCC by the
 340 big radio interests, were almost incredible in their force and
 341 deviousness.<a href="#ftn.idp6958400" class="footnote" name="idp6958400"><sup class="footnote">[9]</sup></a>
 342 </p></blockquote></div><a class="indexterm" name="idp6959168"></a><a class="indexterm" name="idp6960144"></a><p>
 343 To make room in the spectrum for RCA's latest gamble, television,
 344 FM radio users were to be moved to a totally new spectrum band. The
 345 power of FM radio stations was also cut, meaning FM could no longer
 346 be used to beam programs from one part of the country to another.
 347 (This change was strongly supported by AT&amp;T, because the loss of
 348 FM relaying stations would mean radio stations would have to buy
 349 wired links from AT&amp;T.) The spread of FM radio was thus choked, at
 350 least temporarily.
 351 </p><a class="indexterm" name="idp6961920"></a><a class="indexterm" name="idp6962896"></a><p>
 352 Armstrong resisted RCA's efforts. In response, RCA resisted
 353 Armstrong's patents. After incorporating FM technology into the
 354 emerging standard for television, RCA declared the patents
 355 invalid&#8212;baselessly, and almost fifteen years after they were
 356 issued. It thus refused to pay him royalties. For six years, Armstrong
 357 fought an expensive war of litigation to defend the patents. Finally,
 358 just as the patents expired, RCA offered a settlement so low that it
 359 would not even cover Armstrong's lawyers' fees. Defeated, broken, and
 360 now broke, in 1954 Armstrong wrote a short note to his wife and then
 361 stepped out of a thirteenth-story window to his death.
 362 </p><a class="indexterm" name="idp6964128"></a><a class="indexterm" name="idp6965984"></a><a class="indexterm" name="idp6966960"></a><a class="indexterm" name="idp6967712"></a><p>
 363 This is how the law sometimes works. Not often this tragically, and
 364 rarely with heroic drama, but sometimes, this is how it works. From
 365 the beginning, government and government agencies have been subject to
 366 capture. They are more likely captured when a powerful interest is
 367 threatened by either a legal or technical change. That powerful
 368 interest too often exerts its influence within the government to get
 369 the government to protect it. The rhetoric of this protection is of
 370 course always public spirited; the reality is something
 371 different. Ideas that were as solid as rock in one age, but that, left
 372 to themselves, would crumble in
 373
 374 another, are sustained through this subtle corruption of our political
 375 process. RCA had what the Causbys did not: the power to stifle the
 376 effect of technological change.
 377 </p><a class="indexterm" name="idp6970576"></a><a class="indexterm" name="idp6971552"></a><a class="indexterm" name="idxinternetdevelopmentof"></a><p>
 378 <span class="strong"><strong>There's no</strong></span> single inventor of the Internet. Nor is there any good date
 379 upon which to mark its birth. Yet in a very short time, the Internet
 380 has become part of ordinary American life. According to the Pew
 381 Internet and American Life Project, 58 percent of Americans had access
 382 to the Internet in 2002, up from 49 percent two years
 383 before.<a href="#ftn.idp6975232" class="footnote" name="idp6975232"><sup class="footnote">[10]</sup></a>
 384 That number could well exceed two thirds of the nation by the end
 385 of 2004.
 386 </p><p>
 387 As the Internet has been integrated into ordinary life, it has
 388 changed things. Some of these changes are technical&#8212;the Internet has
 389 made communication faster, it has lowered the cost of gathering data,
 390 and so on. These technical changes are not the focus of this book. They
 391 are important. They are not well understood. But they are the sort of
 392 thing that would simply go away if we all just switched the Internet off.
 393 They don't affect people who don't use the Internet, or at least they
 394 don't affect them directly. They are the proper subject of a book about
 395 the Internet. But this is not a book about the Internet.
 396 </p><p>
 397 Instead, this book is about an effect of the Internet beyond the
 398 Internet itself: an effect upon how culture is made. My claim is that
 399 the Internet has induced an important and unrecognized change in that
 400 process. That change will radically transform a tradition that is as
 401 old as the Republic itself. Most, if they recognized this change,
 402 would reject it. Yet most don't even see the change that the Internet
 403 has introduced.
 404 </p><a class="indexterm" name="idp6979040"></a><a class="indexterm" name="idp6980016"></a><a class="indexterm" name="idxculturecommercialvsnoncommercial"></a><a class="indexterm" name="idp6982256"></a><p>
 405 We can glimpse a sense of this change by distinguishing between
 406 commercial and noncommercial culture, and by mapping the law's
 407 regulation of each. By <span class="quote">«<span class="quote">commercial culture</span>»</span> I mean that part of our
 408 culture that is produced and sold or produced to be sold. By
 409 <span class="quote">«<span class="quote">noncommercial culture</span>»</span> I mean all the rest. When old men sat around
 410 parks or on
 411
 412 street corners telling stories that kids and others consumed, that was
 413 noncommercial culture. When Noah Webster published his <span class="quote">«<span class="quote">Reader,</span>»</span> or
 414 Joel Barlow his poetry, that was commercial culture.
 415 </p><p>
 416 At the beginning of our history, and for just about the whole of our
 417 tradition, noncommercial culture was essentially unregulated. Of
 418 course, if your stories were lewd, or if your song disturbed the
 419 peace, then the law might intervene. But the law was never directly
 420 concerned with the creation or spread of this form of culture, and it
 421 left this culture <span class="quote">«<span class="quote">free.</span>»</span> The ordinary ways in which ordinary
 422 individuals shared and transformed their culture&#8212;telling
 423 stories, reenacting scenes from plays or TV, participating in fan
 424 clubs, sharing music, making tapes&#8212;were left alone by the law.
 425 </p><a class="indexterm" name="idxcopyrightinfringementlawsuitscommercialcreativityasprimarypurposeof"></a><p>
 426 The focus of the law was on commercial creativity. At first slightly,
 427 then quite extensively, the law protected the incentives of creators by
 428 granting them exclusive rights to their creative work, so that they could
 429 sell those exclusive rights in a commercial
 430 marketplace.<a href="#ftn.idp6988944" class="footnote" name="idp6988944"><sup class="footnote">[11]</sup></a>
 431 This is also, of course, an important part of creativity and culture,
 432 and it has become an increasingly important part in America. But in no
 433 sense was it dominant within our tradition. It was instead just one
 434 part, a controlled part, balanced with the free.
 435 </p><a class="indexterm" name="idp6991600"></a><a class="indexterm" name="idp6992608"></a><p>
 436 This rough divide between the free and the controlled has now
 437 been erased.<a href="#ftn.idp6993872" class="footnote" name="idp6993872"><sup class="footnote">[12]</sup></a>
 438 The Internet has set the stage for this erasure and, pushed by big
 439 media, the law has now affected it. For the first time in our
 440 tradition, the ordinary ways in which individuals create and share
 441 culture fall within the reach of the regulation of the law, which has
 442 expanded to draw within its control a vast amount of culture and
 443 creativity that it never reached before. The technology that preserved
 444 the balance of our history&#8212;between uses of our culture that were
 445 free and uses of our culture that were only upon permission&#8212;has
 446 been undone.  The consequence is that we are less and less a free
 447 culture, more and more a permission culture.
 448 </p><a class="indexterm" name="idp6995808"></a><a class="indexterm" name="idp6997376"></a><a class="indexterm" name="idp6998128"></a><p>
 449 This change gets justified as necessary to protect commercial
 450 creativity.  And indeed, protectionism is precisely its
 451 motivation. But the protectionism that justifies the changes that I
 452 will describe below is not the limited and balanced sort that has
 453 defined the law in the past. This is not a protectionism to protect
 454 artists. It is instead a protectionism to protect certain forms of
 455 business. Corporations threatened by the potential of the Internet to
 456 change the way both commercial and noncommercial culture are made and
 457 shared have united to induce lawmakers to use the law to protect
 458 them. It is the story of RCA and Armstrong; it is the dream of the
 459 Causbys.
 460 </p><a class="indexterm" name="idp6999952"></a><p>
 461 For the Internet has unleashed an extraordinary possibility for many
 462 to participate in the process of building and cultivating a culture
 463 that reaches far beyond local boundaries. That power has changed the
 464 marketplace for making and cultivating culture generally, and that
 465 change in turn threatens established content industries. The Internet
 466 is thus to the industries that built and distributed content in the
 467 twentieth century what FM radio was to AM radio, or what the truck was
 468 to the railroad industry of the nineteenth century: the beginning of
 469 the end, or at least a substantial transformation. Digital
 470 technologies, tied to the Internet, could produce a vastly more
 471 competitive and vibrant market for building and cultivating culture;
 472 that market could include a much wider and more diverse range of
 473 creators; those creators could produce and distribute a much more
 474 vibrant range of creativity; and depending upon a few important
 475 factors, those creators could earn more on average from this system
 476 than creators do today&#8212;all so long as the RCAs of our day don't
 477 use the law to protect themselves against this competition.
 478 </p><p>
 479 Yet, as I argue in the pages that follow, that is precisely what is
 480 happening in our culture today. These modern-day equivalents of the
 481 early twentieth-century radio or nineteenth-century railroads are
 482 using their power to get the law to protect them against this new,
 483 more efficient, more vibrant technology for building culture. They are
 484 succeeding in their plan to remake the Internet before the Internet
 485 remakes them.
 486 </p><a class="indexterm" name="idp7003552"></a><a class="indexterm" name="idp7004416"></a><p>
 487 It doesn't seem this way to many. The battles over copyright and the
 488
 489 Internet seem remote to most. To the few who follow them, they seem
 490 mainly about a much simpler brace of questions&#8212;whether <span class="quote">«<span class="quote">piracy</span>»</span> will
 491 be permitted, and whether <span class="quote">«<span class="quote">property</span>»</span> will be protected. The <span class="quote">«<span class="quote">war</span>»</span> that
 492 has been waged against the technologies of the Internet&#8212;what
 493 Motion Picture Association of America (MPAA) president Jack Valenti
 494 calls his <span class="quote">«<span class="quote">own terrorist war</span>»</span><a href="#ftn.idp7007728" class="footnote" name="idp7007728"><sup class="footnote">[13]</sup></a>&#8212;has been framed as a battle about the
 495 rule of law and respect for property. To know which side to take in this
 496 war, most think that we need only decide whether we're for property or
 497 against it.
 498 </p><p>
 499 If those really were the choices, then I would be with Jack Valenti
 500 and the content industry. I, too, am a believer in property, and
 501 especially in the importance of what Mr. Valenti nicely calls
 502 <span class="quote">«<span class="quote">creative property.</span>»</span>  I believe that <span class="quote">«<span class="quote">piracy</span>»</span> is wrong, and that the
 503 law, properly tuned, should punish <span class="quote">«<span class="quote">piracy,</span>»</span> whether on or off the
 504 Internet.
 505 </p><p>
 506 But those simple beliefs mask a much more fundamental question
 507 and a much more dramatic change. My fear is that unless we come to see
 508 this change, the war to rid the world of Internet <span class="quote">«<span class="quote">pirates</span>»</span> will also rid our
 509 culture of values that have been integral to our tradition from the start.
 510 </p><a class="indexterm" name="idp7012304"></a><a class="indexterm" name="idp7013312"></a><a class="indexterm" name="idp7014320"></a><a class="indexterm" name="idp7015072"></a><p>
 511 These values built a tradition that, for at least the first 180 years of
 512 our Republic, guaranteed creators the right to build freely upon their
 513 past, and protected creators and innovators from either state or private
 514 control. The First Amendment protected creators against state control.
 515 And as Professor Neil Netanel powerfully argues,<a href="#ftn.idp7016432" class="footnote" name="idp7016432"><sup class="footnote">[14]</sup></a>
 516 copyright law, properly balanced, protected creators against private
 517 control. Our tradition was thus neither Soviet nor the tradition of
 518 patrons. It instead carved out a wide berth within which creators
 519 could cultivate and extend our culture.
 520 </p><p>
 521 Yet the law's response to the Internet, when tied to changes in the
 522 technology of the Internet itself, has massively increased the
 523 effective regulation of creativity in America. To build upon or
 524 critique the culture around us one must ask, Oliver Twist&#8211;like,
 525 for permission first.  Permission is, of course, often
 526 granted&#8212;but it is not often granted to the critical or the
 527 independent. We have built a kind of cultural nobility; those within
 528 the noble class live easily; those outside it don't. But it is
 529 nobility of any form that is alien to our tradition.
 530 </p><p>
 531 The story that follows is about this war. It is not about the
 532 <span class="quote">«<span class="quote">centrality of technology</span>»</span> to ordinary life. I don't believe in gods,
 533 digital or otherwise. Nor is it an effort to demonize any individual
 534 or group, for neither do I believe in a devil, corporate or
 535 otherwise. It is not a morality tale. Nor is it a call to jihad
 536 against an industry.
 537 </p><p>
 538 It is instead an effort to understand a hopelessly destructive war
 539 inspired by the technologies of the Internet but reaching far beyond
 540 its code. And by understanding this battle, it is an effort to map
 541 peace.  There is no good reason for the current struggle around
 542 Internet technologies to continue. There will be great harm to our
 543 tradition and culture if it is allowed to continue unchecked. We must
 544 come to understand the source of this war. We must resolve it soon.
 545 </p><a class="indexterm" name="idp7022336"></a><a class="indexterm" name="idp7023088"></a><a class="indexterm" name="idxintellectualpropertyrights"></a><p>
 546 <span class="strong"><strong>Like the Causbys'</strong></span> battle, this war is, in part, about <span class="quote">«<span class="quote">property.</span>»</span>  The
 547 property of this war is not as tangible as the Causbys', and no
 548 innocent chicken has yet to lose its life. Yet the ideas surrounding
 549 this <span class="quote">«<span class="quote">property</span>»</span> are as obvious to most as the Causbys' claim about the
 550 sacredness of their farm was to them. We are the Causbys. Most of us
 551 take for granted the extraordinarily powerful claims that the owners
 552 of <span class="quote">«<span class="quote">intellectual property</span>»</span> now assert. Most of us, like the Causbys,
 553 treat these claims as obvious. And hence we, like the Causbys, object
 554 when a new technology interferes with this property. It is as plain to
 555 us as it was to them that the new technologies of the Internet are
 556 <span class="quote">«<span class="quote">trespassing</span>»</span> upon legitimate claims of <span class="quote">«<span class="quote">property.</span>»</span> It is as plain to
 557 us as it was to them that the law should intervene to stop this
 558 trespass.
 559 </p><a class="indexterm" name="idp7028752"></a><a class="indexterm" name="idp7029504"></a><a class="indexterm" name="idp7030256"></a><p>
 560 And thus, when geeks and technologists defend their Armstrong or
 561 Wright brothers technology, most of us are simply unsympathetic.
 562 Common sense does not revolt. Unlike in the case of the unlucky
 563 Causbys, common sense is on the side of the property owners in this
 564 war. Unlike
 565
 566 the lucky Wright brothers, the Internet has not inspired a revolution
 567 on its side.
 568 </p><a class="indexterm" name="idp7032032"></a><p>
 569 My hope is to push this common sense along. I have become increasingly
 570 amazed by the power of this idea of intellectual property and, more
 571 importantly, its power to disable critical thought by policy makers
 572 and citizens. There has never been a time in our history when more of
 573 our <span class="quote">«<span class="quote">culture</span>»</span> was as <span class="quote">«<span class="quote">owned</span>»</span> as it is now. And yet there has never
 574 been a time when the concentration of power to control the
 575 <span class="emphasis"><em>uses</em></span> of culture has been as unquestioningly
 576 accepted as it is now.
 577 </p><p>
 578 The puzzle is, Why?  Is it because we have come to understand a truth
 579 about the value and importance of absolute property over ideas and
 580 culture? Is it because we have discovered that our tradition of
 581 rejecting such an absolute claim was wrong?
 582 </p><p>
 583 Or is it because the idea of absolute property over ideas and culture
 584 benefits the RCAs of our time and fits our own unreflective intuitions?
 585 </p><p>
 586 Is the radical shift away from our tradition of free culture an instance
 587 of America correcting a mistake from its past, as we did after a bloody
 588 war with slavery, and as we are slowly doing with inequality? Or is the
 589 radical shift away from our tradition of free culture yet another example
 590 of a political system captured by a few powerful special interests?
 591 </p><p>
 592 Does common sense lead to the extremes on this question because common
 593 sense actually believes in these extremes? Or does common sense stand
 594 silent in the face of these extremes because, as with Armstrong versus
 595 RCA, the more powerful side has ensured that it has the more powerful
 596 view?
 597 </p><a class="indexterm" name="idp7037456"></a><a class="indexterm" name="idp7038208"></a><p>
 598 I don't mean to be mysterious. My own views are resolved. I believe it
 599 was right for common sense to revolt against the extremism of the
 600 Causbys. I believe it would be right for common sense to revolt
 601 against the extreme claims made today on behalf of <span class="quote">«<span class="quote">intellectual
 602 property.</span>»</span>  What the law demands today is increasingly as silly as a
 603 sheriff arresting an airplane for trespass. But the consequences of
 604 this silliness will be much more profound.
 605
 606 </p><a class="indexterm" name="idp7040448"></a><p>
 607 <span class="strong"><strong>The struggle</strong></span> that rages just now centers on two ideas: <span class="quote">«<span class="quote">piracy</span>»</span> and
 608 <span class="quote">«<span class="quote">property.</span>»</span> My aim in this book's next two parts is to explore these two
 609 ideas.
 610 </p><p>
 611 My method is not the usual method of an academic. I don't want to
 612 plunge you into a complex argument, buttressed with references to
 613 obscure French theorists&#8212;however natural that is for the weird
 614 sort we academics have become. Instead I begin in each part with a
 615 collection of stories that set a context within which these apparently
 616 simple ideas can be more fully understood.
 617 </p><p>
 618 The two sections set up the core claim of this book: that while the
 619 Internet has indeed produced something fantastic and new, our
 620 government, pushed by big media to respond to this <span class="quote">«<span class="quote">something new,</span>»</span> is
 621 destroying something very old. Rather than understanding the changes
 622 the Internet might permit, and rather than taking time to let <span class="quote">«<span class="quote">common
 623 sense</span>»</span> resolve how best to respond, we are allowing those most
 624 threatened by the changes to use their power to change the
 625 law&#8212;and more importantly, to use their power to change something
 626 fundamental about who we have always been.
 627 </p><p>
 628 We allow this, I believe, not because it is right, and not because
 629 most of us really believe in these changes. We allow it because the
 630 interests most threatened are among the most powerful players in our
 631 depressingly compromised process of making law. This book is the story
 632 of one more consequence of this form of corruption&#8212;a consequence
 633 to which most of us remain oblivious.
 634 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp6895696" class="footnote"><p><a href="#idp6895696" class="para"><sup class="para">[4] </sup></a>
 635 St. George Tucker, <em class="citetitle">Blackstone's Commentaries</em> 3 (South Hackensack, N.J.:
 636 Rothman Reprints, 1969), 18.
 637 </p></div><div id="ftn.idp6909088" class="footnote"><p><a href="#idp6909088" class="para"><sup class="para">[5] </sup></a>
 638 United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find
 639 that there could be a <span class="quote">«<span class="quote">taking</span>»</span> if the government's use of its land
 640 effectively destroyed the value of the Causbys' land. This example was
 641 suggested to me by Keith Aoki's wonderful piece, <span class="quote">«<span class="quote">(Intellectual)
 642 Property and Sovereignty: Notes Toward a Cultural Geography of
 643 Authorship,</span>»</span> <em class="citetitle">Stanford Law Review</em> 48 (1996): 1293, 1333. See also Paul
 644 Goldstein, <em class="citetitle">Real Property</em> (Mineola, N.Y.: Foundation Press, 1984),
 645 1112&#8211;13.
 646 <a class="indexterm" name="idp6912432"></a>
 647 <a class="indexterm" name="idp6912048"></a>
 648 </p></div><div id="ftn.idp6938592" class="footnote"><p><a href="#idp6938592" class="para"><sup class="para">[6] </sup></a>
 649 Lawrence Lessing, <em class="citetitle">Man of High Fidelity: Edwin Howard Armstrong</em>
 650 (Philadelphia: J. B. Lipincott Company, 1956), 209.
 651 </p></div><div id="ftn.idp6935184" class="footnote"><p><a href="#idp6935184" class="para"><sup class="para">[7] </sup></a> See <span class="quote">«<span class="quote">Saints: The Heroes and Geniuses of the
 652 Electronic Era,</span>»</span> First Electronic Church of America, at
 653 www.webstationone.com/fecha, available at
 654
 655 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #1</a>.
 656 </p></div><div id="ftn.idp6953856" class="footnote"><p><a href="#idp6953856" class="para"><sup class="para">[8] </sup></a>Lessing, 226.
 657 </p></div><div id="ftn.idp6958400" class="footnote"><p><a href="#idp6958400" class="para"><sup class="para">[9] </sup></a>
 658 Lessing, 256.
 659 </p></div><div id="ftn.idp6975232" class="footnote"><p><a href="#idp6975232" class="para"><sup class="para">[10] </sup></a>
 660 Amanda Lenhart, <span class="quote">«<span class="quote">The Ever-Shifting Internet Population: A New Look at
 661 Internet Access and the Digital Divide,</span>»</span> Pew Internet and American
 662 Life Project, 15 April 2003: 6, available at
 663 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #2</a>.
 664 </p></div><div id="ftn.idp6988944" class="footnote"><p><a href="#idp6988944" class="para"><sup class="para">[11] </sup></a>
 665 This is not the only purpose of copyright, though it is the overwhelmingly
 666 primary purpose of the copyright established in the federal constitution.
 667 State copyright law historically protected not just the commercial interest in
 668 publication, but also a privacy interest. By granting authors the exclusive
 669 right to first publication, state copyright law gave authors the power to
 670 control the spread of facts about them. See Samuel D. Warren and Louis
 671 D. Brandeis, <span class="quote">«<span class="quote">The Right to Privacy,</span>»</span> Harvard Law Review 4 (1890): 193,
 672 198&#8211;200.
 673 <a class="indexterm" name="idp6912304"></a>
 674 </p></div><div id="ftn.idp6993872" class="footnote"><p><a href="#idp6993872" class="para"><sup class="para">[12] </sup></a>
 675 See Jessica Litman, <em class="citetitle">Digital Copyright</em> (New York: Prometheus Books,
 676 2001), ch. 13.
 677 <a class="indexterm" name="idp6994640"></a>
 678 </p></div><div id="ftn.idp7007728" class="footnote"><p><a href="#idp7007728" class="para"><sup class="para">[13] </sup></a>
 679 Amy Harmon, <span class="quote">«<span class="quote">Black Hawk Download: Moving Beyond Music, Pirates
 680 Use New Tools to Turn the Net into an Illicit Video Club,</span>»</span> <em class="citetitle">New York
 681 Times</em>, 17 January 2002.
 682 </p></div><div id="ftn.idp7016432" class="footnote"><p><a href="#idp7016432" class="para"><sup class="para">[14] </sup></a>
 683 Neil W. Netanel, <span class="quote">«<span class="quote">Copyright and a Democratic Civil Society,</span>»</span> <em class="citetitle">Yale Law
 684 Journal</em> 106 (1996): 283.
 685 <a class="indexterm" name="idp7017712"></a>
 686 </p></div></div></div><div class="part"><div class="titlepage"><div><div><h1 class="title"><a name="c-piracy"></a>Part I. <span class="quote">«<span class="quote">Piracy</span>»</span></h1></div></div></div><div class="partintro"><div></div><a class="indexterm" name="idp7048608"></a><a class="indexterm" name="idxmansfieldwilliammurraylord"></a><a class="indexterm" name="idp7050848"></a><a class="indexterm" name="idp7051600"></a><p>
 687 <span class="strong"><strong>Since the inception</strong></span> of the law regulating creative property, there has
 688 been a war against <span class="quote">«<span class="quote">piracy.</span>»</span> The precise contours of this concept,
 689 <span class="quote">«<span class="quote">piracy,</span>»</span> are hard to sketch, but the animating injustice is easy to
 690 capture.  As Lord Mansfield wrote in a case that extended the reach of
 691 English copyright law to include sheet music,
 692 </p><div class="blockquote"><blockquote class="blockquote"><p>
 693 A person may use the copy by playing it, but he has no right to
 694 rob the author of the profit, by multiplying copies and disposing
 695 of them for his own use.<a href="#ftn.idp7055088" class="footnote" name="idp7055088"><sup class="footnote">[15]</sup></a>
 696 </p><a class="indexterm" name="idp7056752"></a></blockquote></div><a class="indexterm" name="idp7057856"></a><a class="indexterm" name="idxpeertopeerppfilesharingefficiencyof"></a><p>
 697 Today we are in the middle of another <span class="quote">«<span class="quote">war</span>»</span> against <span class="quote">«<span class="quote">piracy.</span>»</span> The
 698 Internet has provoked this war. The Internet makes possible the
 699 efficient spread of content. Peer-to-peer (p2p) file sharing is among
 700 the most efficient of the efficient technologies the Internet
 701 enables. Using distributed intelligence, p2p systems facilitate the
 702 easy spread of content in a way unimagined a generation ago.
 703
 704 </p><p>
 705 This efficiency does not respect the traditional lines of copyright.
 706 The network doesn't discriminate between the sharing of copyrighted
 707 and uncopyrighted content. Thus has there been a vast amount of
 708 sharing of copyrighted content. That sharing in turn has excited the
 709 war, as copyright owners fear the sharing will <span class="quote">«<span class="quote">rob the author of the
 710 profit.</span>»</span>
 711 </p><a class="indexterm" name="idp7063216"></a><p>
 712 The warriors have turned to the courts, to the legislatures, and
 713 increasingly to technology to defend their <span class="quote">«<span class="quote">property</span>»</span> against this
 714 <span class="quote">«<span class="quote">piracy.</span>»</span>  A generation of Americans, the warriors warn, is being
 715 raised to believe that <span class="quote">«<span class="quote">property</span>»</span> should be <span class="quote">«<span class="quote">free.</span>»</span> Forget tattoos,
 716 never mind body piercing&#8212;our kids are becoming
 717 <span class="emphasis"><em>thieves</em></span>!
 718 </p><p>
 719 There's no doubt that <span class="quote">«<span class="quote">piracy</span>»</span> is wrong, and that pirates should be
 720 punished. But before we summon the executioners, we should put this
 721 notion of <span class="quote">«<span class="quote">piracy</span>»</span> in some context. For as the concept is increasingly
 722 used, at its core is an extraordinary idea that is almost certainly wrong.
 723 </p><p>
 724 The idea goes something like this:
 725 </p><div class="blockquote"><blockquote class="blockquote"><p>
 726 Creative work has value; whenever I use, or take, or build upon
 727 the creative work of others, I am taking from them something of
 728 value. Whenever I take something of value from someone else, I
 729 should have their permission. The taking of something of value
 730 from someone else without permission is wrong. It is a form of
 731 piracy.
 732 </p></blockquote></div><a class="indexterm" name="idp7069712"></a><a class="indexterm" name="idp7070464"></a><a class="indexterm" name="idp7071216"></a><a class="indexterm" name="idxcreativepropertyifvaluethenrighttheoryof"></a><a class="indexterm" name="idxifvaluethenrighttheory"></a><p>
 733 This view runs deep within the current debates. It is what NYU law
 734 professor Rochelle Dreyfuss criticizes as the <span class="quote">«<span class="quote">if value, then right</span>»</span>
 735 theory of creative property<a href="#ftn.idp7075968" class="footnote" name="idp7075968"><sup class="footnote">[16]</sup></a>
 736 &#8212;if there is value, then someone must have a
 737 right to that value. It is the perspective that led a composers' rights
 738 organization, ASCAP, to sue the Girl Scouts for failing to pay for the
 739 songs that girls sang around Girl Scout campfires.<a href="#ftn.idp7066208" class="footnote" name="idp7066208"><sup class="footnote">[17]</sup></a>
 740 There was <span class="quote">«<span class="quote">value</span>»</span> (the songs) so there must have been a
 741 <span class="quote">«<span class="quote">right</span>»</span>&#8212;even against the Girl Scouts.
 742 </p><a class="indexterm" name="idp7082592"></a><p>
 743 This idea is certainly a possible understanding of how creative
 744 property should work. It might well be a possible design for a system
 745
 746 of law protecting creative property. But the <span class="quote">«<span class="quote">if value, then right</span>»</span>
 747 theory of creative property has never been America's theory of
 748 creative property.  It has never taken hold within our law.
 749 </p><a class="indexterm" name="idp7084880"></a><a class="indexterm" name="idxcopyrightlawonrepublishingvstransformationoforiginalwork"></a><a class="indexterm" name="idxcreativitylegalrestrictionson"></a><p>
 750 Instead, in our tradition, intellectual property is an instrument. It
 751 sets the groundwork for a richly creative society but remains
 752 subservient to the value of creativity. The current debate has this
 753 turned around. We have become so concerned with protecting the
 754 instrument that we are losing sight of the value.
 755 </p><p>
 756 The source of this confusion is a distinction that the law no longer
 757 takes care to draw&#8212;the distinction between republishing someone's
 758 work on the one hand and building upon or transforming that work on
 759 the other. Copyright law at its birth had only publishing as its concern;
 760 copyright law today regulates both.
 761 </p><a class="indexterm" name="idp7090624"></a><p>
 762 Before the technologies of the Internet, this conflation didn't matter
 763 all that much. The technologies of publishing were expensive; that
 764 meant the vast majority of publishing was commercial. Commercial
 765 entities could bear the burden of the law&#8212;even the burden of the
 766 Byzantine complexity that copyright law has become. It was just one
 767 more expense of doing business.
 768 </p><a class="indexterm" name="idp7091904"></a><a class="indexterm" name="idp7093440"></a><a class="indexterm" name="idp7094192"></a><p>
 769 But with the birth of the Internet, this natural limit to the reach of
 770 the law has disappeared. The law controls not just the creativity of
 771 commercial creators but effectively that of anyone. Although that
 772 expansion would not matter much if copyright law regulated only
 773 <span class="quote">«<span class="quote">copying,</span>»</span> when the law regulates as broadly and obscurely as it does,
 774 the extension matters a lot. The burden of this law now vastly
 775 outweighs any original benefit&#8212;certainly as it affects
 776 noncommercial creativity, and increasingly as it affects commercial
 777 creativity as well. Thus, as we'll see more clearly in the chapters
 778 below, the law's role is less and less to support creativity, and more
 779 and more to protect certain industries against competition. Just at
 780 the time digital technology could unleash an extraordinary range of
 781 commercial and noncommercial creativity, the law burdens this
 782 creativity with insanely complex and vague rules and with the threat
 783 of obscenely severe penalties. We may
 784
 785 be seeing, as Richard Florida writes, the <span class="quote">«<span class="quote">Rise of the Creative
 786 Class.</span>»</span><a href="#ftn.idp7097840" class="footnote" name="idp7097840"><sup class="footnote">[18]</sup></a>
 787 Unfortunately, we are also seeing an extraordinary rise of regulation of
 788 this creative class.
 789 </p><a class="indexterm" name="idp7101280"></a><p>
 790 These burdens make no sense in our tradition. We should begin by
 791 understanding that tradition a bit more and by placing in their proper
 792 context the current battles about behavior labeled <span class="quote">«<span class="quote">piracy.</span>»</span>
 793 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7055088" class="footnote"><p><a href="#idp7055088" class="para"><sup class="para">[15] </sup></a>
 794
 795 <em class="citetitle">Bach</em> v. <em class="citetitle">Longman</em>, 98 Eng. Rep. 1274 (1777) (Mansfield).
 796 </p></div><div id="ftn.idp7075968" class="footnote"><p><a href="#idp7075968" class="para"><sup class="para">[16] </sup></a>
 797
 798 See Rochelle Dreyfuss, <span class="quote">«<span class="quote">Expressive Genericity: Trademarks as Language
 799 in the Pepsi Generation,</span>»</span> <em class="citetitle">Notre Dame Law Review</em> 65 (1990): 397.
 800 </p></div><div id="ftn.idp7066208" class="footnote"><p><a href="#idp7066208" class="para"><sup class="para">[17] </sup></a>
 801
 802 Lisa Bannon, <span class="quote">«<span class="quote">The Birds May Sing, but Campers Can't Unless They Pay
 803 Up,</span>»</span> <em class="citetitle">Wall Street Journal</em>, 21 August 1996, available at
 804 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #3</a>; Jonathan
 805 Zittrain, <span class="quote">«<span class="quote">Calling Off the Copyright War: In Battle of Property vs. Free
 806 Speech, No One Wins,</span>»</span> <em class="citetitle">Boston Globe</em>, 24 November 2002.
 807 <a class="indexterm" name="idp7080816"></a>
 808 </p></div><div id="ftn.idp7097840" class="footnote"><p><a href="#idp7097840" class="para"><sup class="para">[18] </sup></a>
 809
 810 In <em class="citetitle">The Rise of the Creative Class</em> (New York:
 811 Basic Books, 2002), Richard Florida documents a shift in the nature of
 812 labor toward a labor of creativity.  His work, however, doesn't
 813 directly address the legal conditions under which that creativity is
 814 enabled or stifled. I certainly agree with him about the importance
 815 and significance of this change, but I also believe the conditions
 816 under which it will be enabled are much more tenuous.
 817
 818 <a class="indexterm" name="idp7099408"></a>
 819 <a class="indexterm" name="idp7100160"></a>
 820 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="creators"></a>Chapter 1. Chapter One: Creators</h2></div></div></div><a class="indexterm" name="idxanimatedcartoons"></a><a class="indexterm" name="idxcartoonfilms"></a><a class="indexterm" name="idxfilmsanimated"></a><a class="indexterm" name="idxsteamboatwillie"></a><a class="indexterm" name="idxmickeymouse"></a><p>
 821 <span class="strong"><strong>In 1928</strong></span>, a cartoon character was born. An early Mickey Mouse
 822 made his debut in May of that year, in a silent flop called <em class="citetitle">Plane Crazy</em>.
 823 In November, in New York City's Colony Theater, in the first widely
 824 distributed cartoon synchronized with sound, <em class="citetitle">Steamboat Willie</em> brought
 825 to life the character that would become Mickey Mouse.
 826 </p><a class="indexterm" name="idxdisneywalt"></a><p>
 827 Synchronized sound had been introduced to film a year earlier in the
 828 movie <em class="citetitle">The Jazz Singer</em>. That success led Walt Disney to copy the
 829 technique and mix sound with cartoons. No one knew whether it would
 830 work or, if it did work, whether it would win an audience. But when
 831 Disney ran a test in the summer of 1928, the results were unambiguous.
 832 As Disney describes that first experiment,
 833 </p><div class="blockquote"><blockquote class="blockquote"><p>
 834 A couple of my boys could read music, and one of them could play
 835 a mouth organ. We put them in a room where they could not see
 836 the screen and arranged to pipe their sound into the room where
 837 our wives and friends were going to see the picture.
 838
 839 </p><p>
 840 The boys worked from a music and sound-effects score. After several
 841 false starts, sound and action got off with the gun. The mouth
 842 organist played the tune, the rest of us in the sound department
 843 bammed tin pans and blew slide whistles on the beat.  The
 844 synchronization was pretty close.
 845 </p><p>
 846 The effect on our little audience was nothing less than electric.
 847 They responded almost instinctively to this union of sound and
 848 motion. I thought they were kidding me. So they put me in the audience
 849 and ran the action again. It was terrible, but it was wonderful! And
 850 it was something new!<a href="#ftn.idp7117984" class="footnote" name="idp7117984"><sup class="footnote">[19]</sup></a>
 851 </p></blockquote></div><a class="indexterm" name="idp7119472"></a><p>
 852 Disney's then partner, and one of animation's most extraordinary
 853 talents, Ub Iwerks, put it more strongly: <span class="quote">«<span class="quote">I have never been so thrilled
 854 in my life. Nothing since has ever equaled it.</span>»</span>
 855 </p><p>
 856 Disney had created something very new, based upon something relatively
 857 new. Synchronized sound brought life to a form of creativity that had
 858 rarely&#8212;except in Disney's hands&#8212;been anything more than
 859 filler for other films. Throughout animation's early history, it was
 860 Disney's invention that set the standard that others struggled to
 861 match.  And quite often, Disney's great genius, his spark of
 862 creativity, was built upon the work of others.
 863 </p><a class="indexterm" name="idp7121472"></a><a class="indexterm" name="idxkeatonbuster"></a><a class="indexterm" name="idxsteamboatbilljr"></a><p>
 864 This much is familiar. What you might not know is that 1928 also marks
 865 another important transition. In that year, a comic (as opposed to
 866 cartoon) genius created his last independently produced silent film.
 867 That genius was Buster Keaton. The film was <em class="citetitle">Steamboat Bill, Jr</em>.
 868 </p><p>
 869 Keaton was born into a vaudeville family in 1895. In the era of silent
 870 film, he had mastered using broad physical comedy as a way to spark
 871 uncontrollable laughter from his audience. <em class="citetitle">Steamboat Bill,
 872 Jr</em>. was a classic of this form, famous among film buffs for its
 873 incredible stunts.  The film was classic Keaton&#8212;wildly popular
 874 and among the best of its genre.
 875 </p><a class="indexterm" name="idxderivativeworkspiracyvs"></a><a class="indexterm" name="idxpiracyderivativeworkvs"></a><p>
 876 <em class="citetitle">Steamboat Bill, Jr</em>. appeared before Disney's cartoon Steamboat
 877 Willie.
 878
 879 The coincidence of titles is not coincidental. Steamboat Willie is a
 880 direct cartoon parody of Steamboat Bill,<a href="#ftn.idp7131712" class="footnote" name="idp7131712"><sup class="footnote">[20]</sup></a>
 881 and both are built upon a common song as a source. It is not just from
 882 the invention of synchronized sound in <em class="citetitle">The Jazz Singer</em> that we
 883 get <em class="citetitle">Steamboat Willie</em>. It is also from Buster Keaton's invention of
 884 Steamboat Bill, Jr., itself inspired by the song <span class="quote">«<span class="quote">Steamboat Bill,</span>»</span>
 885 that we get Steamboat Willie, and then from Steamboat Willie, Mickey
 886 Mouse.
 887 </p><a class="indexterm" name="idp7137760"></a><a class="indexterm" name="idp7138736"></a><a class="indexterm" name="idp7139712"></a><a class="indexterm" name="idp7140688"></a><a class="indexterm" name="idxcreativitybytransformingpreviousworks"></a><a class="indexterm" name="idxdisneyinc"></a><p>
 888 This <span class="quote">«<span class="quote">borrowing</span>»</span> was nothing unique, either for Disney or for the
 889 industry. Disney was always parroting the feature-length mainstream
 890 films of his day.<a href="#ftn.idp7145168" class="footnote" name="idp7145168"><sup class="footnote">[21]</sup></a>
 891 So did many others. Early cartoons are filled with
 892 knockoffs&#8212;slight variations on winning themes; retellings of
 893 ancient stories. The key to success was the brilliance of the
 894 differences. With Disney, it was sound that gave his animation its
 895 spark. Later, it was the quality of his work relative to the
 896 production-line cartoons with which he competed. Yet these additions
 897 were built upon a base that was borrowed.  Disney added to the work of
 898 others before him, creating something new out of something just barely
 899 old.
 900 </p><a class="indexterm" name="idxgrimmfairytales"></a><p>
 901 Sometimes this borrowing was slight. Sometimes it was significant.
 902 Think about the fairy tales of the Brothers Grimm. If you're as
 903 oblivious as I was, you're likely to think that these tales are happy,
 904 sweet stories, appropriate for any child at bedtime. In fact, the
 905 Grimm fairy tales are, well, for us, grim. It is a rare and perhaps
 906 overly ambitious parent who would dare to read these bloody,
 907 moralistic stories to his or her child, at bedtime or anytime.
 908 </p><p>
 909 Disney took these stories and retold them in a way that carried them
 910 into a new age. He animated the stories, with both characters and
 911 light. Without removing the elements of fear and danger altogether, he
 912 made funny what was dark and injected a genuine emotion of compassion
 913 where before there was fear. And not just with the work of the
 914 Brothers Grimm. Indeed, the catalog of Disney work drawing upon the
 915 work of others is astonishing when set together: <em class="citetitle">Snow White</em>
 916 (1937), <em class="citetitle">Fantasia</em> (1940), <em class="citetitle">Pinocchio</em> (1940), <em class="citetitle">Dumbo</em>
 917 (1941), <em class="citetitle">Bambi</em> (1942), <em class="citetitle">Song of the South</em> (1946),
 918 <em class="citetitle">Cinderella</em> (1950), <em class="citetitle">Alice in Wonderland</em> (1951), <em class="citetitle">Robin
 919 Hood</em> (1952), <em class="citetitle">Peter Pan</em> (1953), <em class="citetitle">Lady and the Tramp</em>
 920
 921 (1955), <em class="citetitle">Mulan</em> (1998), <em class="citetitle">Sleeping Beauty</em> (1959), <em class="citetitle">101
 922 Dalmatians</em> (1961), <em class="citetitle">The Sword in the Stone</em> (1963), and
 923 <em class="citetitle">The Jungle Book</em> (1967)&#8212;not to mention a recent example
 924 that we should perhaps quickly forget, <em class="citetitle">Treasure Planet</em>
 925 (2003). In all of these cases, Disney (or Disney, Inc.) ripped
 926 creativity from the culture around him, mixed that creativity with his
 927 own extraordinary talent, and then burned that mix into the soul of
 928 his culture. Rip, mix, and burn.
 929 </p><a class="indexterm" name="idp7157872"></a><p>
 930 This is a kind of creativity. It is a creativity that we should
 931 remember and celebrate. There are some who would say that there is no
 932 creativity except this kind. We don't need to go that far to recognize
 933 its importance. We could call this <span class="quote">«<span class="quote">Disney creativity,</span>»</span> though that
 934 would be a bit misleading. It is, more precisely, <span class="quote">«<span class="quote">Walt Disney
 935 creativity</span>»</span>&#8212;a form of expression and genius that builds upon the
 936 culture around us and makes it something different.
 937 </p><a class="indexterm" name="idp7160384"></a><a class="indexterm" name="idp7161360"></a><a class="indexterm" name="idp7162336"></a><a class="indexterm" name="idxcopyrightdurationof"></a><a class="indexterm" name="idxpublicdomaindefined"></a><a class="indexterm" name="idxpublicdomaintraditionaltermforconversionto"></a><p> In 1928, the culture that Disney was free to draw upon was
 938 relatively fresh. The public domain in 1928 was not very old and was
 939 therefore quite vibrant. The average term of copyright was just around
 940 thirty years&#8212;for that minority of creative work that was in fact
 941 copyrighted.<a href="#ftn.idp7160000" class="footnote" name="idp7160000"><sup class="footnote">[22]</sup></a>
 942 That means that for thirty years, on average, the authors or
 943 copyright holders of a creative work had an <span class="quote">«<span class="quote">exclusive right</span>»</span> to control
 944 certain uses of the work. To use this copyrighted work in limited ways
 945 required the permission of the copyright owner.
 946 </p><p>
 947 At the end of a copyright term, a work passes into the public domain.
 948 No permission is then needed to draw upon or use that work. No
 949 permission and, hence, no lawyers. The public domain is a <span class="quote">«<span class="quote">lawyer-free
 950 zone.</span>»</span> Thus, most of the content from the nineteenth century was free
 951 for Disney to use and build upon in 1928. It was free for
 952 anyone&#8212; whether connected or not, whether rich or not, whether
 953 approved or not&#8212;to use and build upon.
 954 </p><a class="indexterm" name="idp7172352"></a><a class="indexterm" name="idp7173712"></a><p>
 955 This is the ways things always were&#8212;until quite recently. For most
 956 of our history, the public domain was just over the horizon. From
 957 until 1978, the average copyright term was never more than thirty-two
 958 years, meaning that most culture just a generation and a half old was
 959
 960
 961 free for anyone to build upon without the permission of anyone else.
 962 Today's equivalent would be for creative work from the 1960s and 1970s
 963 to now be free for the next Walt Disney to build upon without
 964 permission. Yet today, the public domain is presumptive only for
 965 content from before the Great Depression.
 966 </p><a class="indexterm" name="idp7175936"></a><a class="indexterm" name="idp7176912"></a><a class="indexterm" name="idp7177888"></a><a class="indexterm" name="idp7178864"></a><a class="indexterm" name="idp7179840"></a><a class="indexterm" name="idp7180816"></a><p>
 967 <span class="strong"><strong>Of course</strong></span>, Walt Disney had no monopoly on <span class="quote">«<span class="quote">Walt Disney creativity.</span>»</span>
 968 Nor does America. The norm of free culture has, until recently, and
 969 except within totalitarian nations, been broadly exploited and quite
 970 universal.
 971 </p><a class="indexterm" name="idxcomicsjapanese"></a><a class="indexterm" name="idxderivativeworkspiracyvs2"></a><a class="indexterm" name="idxjapanesecomics"></a><a class="indexterm" name="idxmanga"></a><a class="indexterm" name="idxpiracyderivativeworkvs2"></a><p>
 972 Consider, for example, a form of creativity that seems strange to many
 973 Americans but that is inescapable within Japanese culture: <em class="citetitle">manga</em>, or
 974 comics. The Japanese are fanatics about comics. Some 40 percent of
 975 publications are comics, and 30 percent of publication revenue derives
 976 from comics. They are everywhere in Japanese society, at every
 977 magazine stand, carried by a large proportion of commuters on Japan's
 978 extraordinary system of public transportation.
 979 </p><p>
 980 Americans tend to look down upon this form of culture. That's an
 981 unattractive characteristic of ours. We're likely to misunderstand
 982 much about manga, because few of us have ever read anything close to
 983 the stories that these <span class="quote">«<span class="quote">graphic novels</span>»</span> tell. For the Japanese, manga
 984 cover every aspect of social life. For us, comics are <span class="quote">«<span class="quote">men in tights.</span>»</span>
 985 And anyway, it's not as if the New York subways are filled with
 986 readers of Joyce or even Hemingway. People of different cultures
 987 distract themselves in different ways, the Japanese in this
 988 interestingly different way.
 989 </p><p>
 990 But my purpose here is not to understand manga. It is to describe a
 991 variant on manga that from a lawyer's perspective is quite odd, but
 992 from a Disney perspective is quite familiar.
 993 </p><a class="indexterm" name="idxcreativitybytransformingpreviousworks2"></a><a class="indexterm" name="idxdoujinshicomics"></a><p>
 994 This is the phenomenon of <em class="citetitle">doujinshi</em>. Doujinshi are also comics, but
 995 they are a kind of copycat comic. A rich ethic governs the creation of
 996 doujinshi. It is not doujinshi if it is <span class="emphasis"><em>just</em></span> a
 997 copy; the artist must make a contribution to the art he copies, by
 998 transforming it either subtly or
 999
1000 significantly. A doujinshi comic can thus take a mainstream comic and
1001 develop it differently&#8212;with a different story line. Or the comic can
1002 keep the character in character but change its look slightly. There is no
1003 formula for what makes the doujinshi sufficiently <span class="quote">«<span class="quote">different.</span>»</span> But they
1004 must be different if they are to be considered true doujinshi. Indeed,
1005 there are committees that review doujinshi for inclusion within shows
1006 and reject any copycat comic that is merely a copy.
1007 </p><a class="indexterm" name="idxdisneywalt2"></a><p>
1008 These copycat comics are not a tiny part of the manga market. They are
1009 huge. More than 33,000 <span class="quote">«<span class="quote">circles</span>»</span> of creators from across Japan produce
1010 these bits of Walt Disney creativity. More than 450,000 Japanese come
1011 together twice a year, in the largest public gathering in the country,
1012 to exchange and sell them. This market exists in parallel to the
1013 mainstream commercial manga market. In some ways, it obviously
1014 competes with that market, but there is no sustained effort by those
1015 who control the commercial manga market to shut the doujinshi market
1016 down. It flourishes, despite the competition and despite the law.
1017 </p><a class="indexterm" name="idxcopyrightlawjapanese"></a><a class="indexterm" name="idp7202672"></a><p>
1018 The most puzzling feature of the doujinshi market, for those trained
1019 in the law, at least, is that it is allowed to exist at all. Under
1020 Japanese copyright law, which in this respect (on paper) mirrors
1021 American copyright law, the doujinshi market is an illegal
1022 one. Doujinshi are plainly <span class="quote">«<span class="quote">derivative works.</span>»</span> There is no general
1023 practice by doujinshi artists of securing the permission of the manga
1024 creators. Instead, the practice is simply to take and modify the
1025 creations of others, as Walt Disney did with <em class="citetitle">Steamboat Bill,
1026 Jr</em>. Under both Japanese and American law, that <span class="quote">«<span class="quote">taking</span>»</span> without
1027 the permission of the original copyright owner is illegal. It is an
1028 infringement of the original copyright to make a copy or a derivative
1029 work without the original copyright owner's permission.
1030 </p><a class="indexterm" name="idp7205712"></a><a class="indexterm" name="idxwinickjudd"></a><p>
1031 Yet this illegal market exists and indeed flourishes in Japan, and in
1032 the view of many, it is precisely because it exists that Japanese manga
1033 flourish. As American graphic novelist Judd Winick said to me, <span class="quote">«<span class="quote">The
1034 early days of comics in America are very much like what's going on
1035 in Japan now. &#8230; American  comics were born out of copying each
1036
1037 other. &#8230; That's how [the artists] learn to draw &#8212; by going into comic
1038 books and not tracing them, but looking at them and copying them</span>»</span>
1039 and building from them.<a href="#ftn.idp7209456" class="footnote" name="idp7209456"><sup class="footnote">[23]</sup></a>
1040 </p><a class="indexterm" name="idp7210736"></a><a class="indexterm" name="idp7211712"></a><p>
1041 American comics now are quite different, Winick explains, in part
1042 because of the legal difficulty of adapting comics the way doujinshi are
1043 allowed. Speaking of Superman, Winick told me, <span class="quote">«<span class="quote">there are these rules
1044 and you have to stick to them.</span>»</span> There are things Superman <span class="quote">«<span class="quote">cannot</span>»</span>
1045 do. <span class="quote">«<span class="quote">As a creator, it's frustrating having to stick to some parameters
1046 which are fifty years old.</span>»</span>
1047 </p><a class="indexterm" name="idp7214320"></a><a class="indexterm" name="idxcopyrightlawjapanese2"></a><a class="indexterm" name="idp7216784"></a><a class="indexterm" name="idxmehrasalil"></a><p>
1048 The norm in Japan mitigates this legal difficulty. Some say it is
1049 precisely the benefit accruing to the Japanese manga market that
1050 explains the mitigation. Temple University law professor Salil Mehra,
1051 for example, hypothesizes that the manga market accepts these
1052 technical violations because they spur the manga market to be more
1053 wealthy and productive. Everyone would be worse off if doujinshi were
1054 banned, so the law does not ban doujinshi.<a href="#ftn.idp7219488" class="footnote" name="idp7219488"><sup class="footnote">[24]</sup></a>
1055 </p><a class="indexterm" name="idp7222016"></a><a class="indexterm" name="idp7222992"></a><a class="indexterm" name="idp7223968"></a><p>
1056 The problem with this story, however, as Mehra plainly acknowledges,
1057 is that the mechanism producing this laissez faire response is not
1058 clear. It may well be that the market as a whole is better off if
1059 doujinshi are permitted rather than banned, but that doesn't explain
1060 why individual copyright owners don't sue nonetheless. If the law has
1061 no general exception for doujinshi, and indeed in some cases
1062 individual manga artists have sued doujinshi artists, why is there not
1063 a more general pattern of blocking this <span class="quote">«<span class="quote">free taking</span>»</span> by the doujinshi
1064 culture?
1065 </p><a class="indexterm" name="idp7226240"></a><a class="indexterm" name="idp7227216"></a><p>
1066 I spent four wonderful months in Japan, and I asked this question
1067 as often as I could. Perhaps the best account in the end was offered by
1068 a friend from a major Japanese law firm. <span class="quote">«<span class="quote">We don't have enough
1069 lawyers,</span>»</span> he told me one afternoon. There <span class="quote">«<span class="quote">just aren't enough resources
1070 to prosecute cases like this.</span>»</span>
1071 </p><p>
1072 This is a theme to which we will return: that regulation by law is a
1073 function of both the words on the books and the costs of making those
1074 words have effect. For now, focus on the obvious question that is
1075 begged: Would Japan be better off with more lawyers? Would manga
1076
1077 be richer if doujinshi artists were regularly prosecuted? Would the
1078 Japanese gain something important if they could end this practice of
1079 uncompensated sharing? Does piracy here hurt the victims of the
1080 piracy, or does it help them? Would lawyers fighting this piracy help
1081 their clients or hurt them?
1082 </p><a class="indexterm" name="idp7230864"></a><p>
1083 <span class="strong"><strong>Let's pause</strong></span> for a moment.
1084 </p><p>
1085 If you're like I was a decade ago, or like most people are when they
1086 first start thinking about these issues, then just about now you should
1087 be puzzled about something you hadn't thought through before.
1088 </p><p>
1089 We live in a world that celebrates <span class="quote">«<span class="quote">property.</span>»</span> I am one of those
1090 celebrants.  I believe in the value of property in general, and I also
1091 believe in the value of that weird form of property that lawyers call
1092 <span class="quote">«<span class="quote">intellectual property.</span>»</span><a href="#ftn.idp7234528" class="footnote" name="idp7234528"><sup class="footnote">[25]</sup></a>
1093 A large, diverse society cannot survive without property; a large,
1094 diverse, and modern society cannot flourish without intellectual
1095 property.
1096 </p><a class="indexterm" name="idxdisneywalt3"></a><a class="indexterm" name="idxgrimmfairytales2"></a><a class="indexterm" name="idp7240640"></a><p>
1097 But it takes just a second's reflection to realize that there is
1098 plenty of value out there that <span class="quote">«<span class="quote">property</span>»</span> doesn't capture. I don't
1099 mean <span class="quote">«<span class="quote">money can't buy you love,</span>»</span> but rather, value that is plainly
1100 part of a process of production, including commercial as well as
1101 noncommercial production.  If Disney animators had stolen a set of
1102 pencils to draw Steamboat Willie, we'd have no hesitation in
1103 condemning that taking as wrong&#8212; even though trivial, even if
1104 unnoticed. Yet there was nothing wrong, at least under the law of the
1105 day, with Disney's taking from Buster Keaton or from the Brothers
1106 Grimm. There was nothing wrong with the taking from Keaton because
1107 Disney's use would have been considered <span class="quote">«<span class="quote">fair.</span>»</span> There was nothing
1108 wrong with the taking from the Grimms because the Grimms' work was in
1109 the public domain.
1110 </p><a class="indexterm" name="idxfreeculturederivativeworksbasedon"></a><p>
1111 Thus, even though the things that Disney took&#8212;or more generally,
1112 the things taken by anyone exercising Walt Disney creativity&#8212;are
1113 valuable, our tradition does not treat those takings as wrong. Some
1114
1115
1116 things remain free for the taking within a free culture, and that
1117 freedom is good.
1118 </p><a class="indexterm" name="idp7246176"></a><a class="indexterm" name="idxcopyrightlawjapanese3"></a><a class="indexterm" name="idp7248640"></a><a class="indexterm" name="idxdoujinshicomics2"></a><a class="indexterm" name="idxjapanesecomics2"></a><a class="indexterm" name="idxmanga2"></a><p>
1119 The same with the doujinshi culture. If a doujinshi artist broke into
1120 a publisher's office and ran off with a thousand copies of his latest
1121 work&#8212;or even one copy&#8212;without paying, we'd have no hesitation in
1122 saying the artist was wrong. In addition to having trespassed, he would
1123 have stolen something of value. The law bans that stealing in whatever
1124 form, whether large or small.
1125 </p><a class="indexterm" name="idp7253344"></a><p>
1126 Yet there is an obvious reluctance, even among Japanese lawyers, to
1127 say that the copycat comic artists are <span class="quote">«<span class="quote">stealing.</span>»</span> This form of Walt
1128 Disney creativity is seen as fair and right, even if lawyers in
1129 particular find it hard to say why.
1130 </p><a class="indexterm" name="idp7255904"></a><a class="indexterm" name="idp7256880"></a><a class="indexterm" name="idp7257856"></a><a class="indexterm" name="idp7258832"></a><a class="indexterm" name="idp7259808"></a><a class="indexterm" name="idp7260784"></a><a class="indexterm" name="idp7261760"></a><p>
1131 It's the same with a thousand examples that appear everywhere once you
1132 begin to look. Scientists build upon the work of other scientists
1133 without asking or paying for the privilege. (<span class="quote">«<span class="quote">Excuse me, Professor
1134 Einstein, but may I have permission to use your theory of relativity
1135 to show that you were wrong about quantum physics?</span>»</span>) Acting companies
1136 perform adaptations of the works of Shakespeare without securing
1137 permission from anyone. (Does <span class="emphasis"><em>anyone</em></span> believe
1138 Shakespeare would be better spread within our culture if there were a
1139 central Shakespeare rights clearinghouse that all productions of
1140 Shakespeare must appeal to first?) And Hollywood goes through cycles
1141 with a certain kind of movie: five asteroid films in the late 1990s;
1142 two volcano disaster films in 1997.
1143 </p><p>
1144 Creators here and everywhere are always and at all times building
1145 upon the creativity that went before and that surrounds them now.
1146 That building is always and everywhere at least partially done without
1147 permission and without compensating the original creator. No society,
1148 free or controlled, has ever demanded that every use be paid for or that
1149 permission for Walt Disney creativity must always be sought. Instead,
1150 every society has left a certain bit of its culture free for the taking&#8212;free
1151 societies more fully than unfree, perhaps, but all societies to some degree.
1152
1153 </p><a class="indexterm" name="idp7264992"></a><p>
1154 The hard question is therefore not <span class="emphasis"><em>whether</em></span> a
1155 culture is free. All cultures are free to some degree. The hard
1156 question instead is <span class="quote">«<span class="quote"><span class="emphasis"><em>How</em></span> free is this culture?</span>»</span>
1157 How much, and how broadly, is the culture free for others to take and
1158 build upon? Is that freedom limited to party members?  To members of
1159 the royal family? To the top ten corporations on the New York Stock
1160 Exchange? Or is that freedom spread broadly? To artists generally,
1161 whether affiliated with the Met or not? To musicians generally,
1162 whether white or not? To filmmakers generally, whether affiliated with
1163 a studio or not?
1164 </p><p>
1165 Free cultures are cultures that leave a great deal open for others to
1166 build upon; unfree, or permission, cultures leave much less. Ours was a
1167 free culture. It is becoming much less so.
1168 </p><a class="indexterm" name="idp7269248"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7117984" class="footnote"><p><a href="#idp7117984" class="para"><sup class="para">[19] </sup></a>
1169
1170 Leonard Maltin, <em class="citetitle">Of Mice and Magic: A History of American Animated
1171 Cartoons</em> (New York: Penguin Books, 1987), 34&#8211;35.
1172 </p></div><div id="ftn.idp7131712" class="footnote"><p><a href="#idp7131712" class="para"><sup class="para">[20] </sup></a>
1173
1174 I am grateful to David Gerstein and his careful history, described at
1175 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #4</a>.
1176 According to Dave Smith of the Disney Archives, Disney paid royalties to
1177 use the music for five songs in <em class="citetitle">Steamboat Willie</em>: <span class="quote">«<span class="quote">Steamboat Bill,</span>»</span> <span class="quote">«<span class="quote">The
1178 Simpleton</span>»</span> (Delille), <span class="quote">«<span class="quote">Mischief Makers</span>»</span> (Carbonara), <span class="quote">«<span class="quote">Joyful Hurry No. 1</span>»</span>
1179 (Baron), and <span class="quote">«<span class="quote">Gawky Rube</span>»</span> (Lakay). A sixth song, <span class="quote">«<span class="quote">The Turkey in the
1180 Straw,</span>»</span> was already in the public domain. Letter from David Smith to
1181 Harry Surden, 10 July 2003, on file with author.
1182 </p></div><div id="ftn.idp7145168" class="footnote"><p><a href="#idp7145168" class="para"><sup class="para">[21] </sup></a>
1183
1184 He was also a fan of the public domain. See Chris Sprigman, <span class="quote">«<span class="quote">The Mouse
1185 that Ate the Public Domain,</span>»</span> Findlaw, 5 March 2002, at
1186 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #5</a>.
1187 </p></div><div id="ftn.idp7160000" class="footnote"><p><a href="#idp7160000" class="para"><sup class="para">[22] </sup></a>
1188
1189 Until 1976, copyright law granted an author the possibility of two terms: an
1190 initial term and a renewal term. I have calculated the <span class="quote">«<span class="quote">average</span>»</span> term by
1191 determining
1192 the weighted average of total registrations for any particular year,
1193 and the proportion renewing. Thus, if 100 copyrights are registered in year
1194 1, and only 15 are renewed, and the renewal term is 28 years, then the
1195 average
1196 term is 32.2 years. For the renewal data and other relevant data, see the
1197 Web site associated with this book, available at
1198 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #6</a>.
1199 </p></div><div id="ftn.idp7209456" class="footnote"><p><a href="#idp7209456" class="para"><sup class="para">[23] </sup></a>
1200
1201 For an excellent history, see Scott McCloud, <em class="citetitle">Reinventing Comics</em> (New
1202 York: Perennial, 2000).
1203 </p></div><div id="ftn.idp7219488" class="footnote"><p><a href="#idp7219488" class="para"><sup class="para">[24] </sup></a>
1204
1205 See Salil K. Mehra, <span class="quote">«<span class="quote">Copyright and Comics in Japan: Does Law Explain
1206 Why All the Comics My Kid Watches Are Japanese Imports?</span>»</span> <em class="citetitle">Rutgers Law
1207 Review</em> 55 (2002): 155, 182. <span class="quote">«<span class="quote">[T]here might be a collective economic
1208 rationality that would lead manga and anime artists to forgo bringing
1209 legal actions for infringement. One hypothesis is that all manga
1210 artists may be better off collectively if they set aside their
1211 individual self-interest and decide not to press their legal
1212 rights. This is essentially a prisoner's dilemma solved.</span>»</span>
1213 </p></div><div id="ftn.idp7234528" class="footnote"><p><a href="#idp7234528" class="para"><sup class="para">[25] </sup></a>
1214
1215 <a class="indexterm" name="idp7235168"></a>
1216 The term <em class="citetitle">intellectual property</em> is of relatively recent origin. See
1217 Siva Vaidhyanathan, <em class="citetitle">Copyrights and Copywrongs</em>, 11 (New York: New York
1218 University Press, 2001). See also Lawrence Lessig, <em class="citetitle">The Future of Ideas</em>
1219 (New York: Random House, 2001), 293 n. 26. The term accurately
1220 describes a set of <span class="quote">«<span class="quote">property</span>»</span> rights &#8212; copyright, patents,
1221 trademark, and trade-secret &#8212; but the nature of those rights is
1222 very different.
1223 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="mere-copyists"></a>Chapter 2. Chapter Two: <span class="quote">«<span class="quote">Mere Copyists</span>»</span></h2></div></div></div><a class="indexterm" name="idp7271984"></a><a class="indexterm" name="idxcameratechnology"></a><a class="indexterm" name="idxphotography"></a><p>
1224 <span class="strong"><strong>In 1839</strong></span>, Louis Daguerre invented
1225 the first practical technology for producing what we would call
1226 <span class="quote">«<span class="quote">photographs.</span>»</span> Appropriately enough, they were called
1227 <span class="quote">«<span class="quote">daguerreotypes.</span>»</span> The process was complicated and
1228 expensive, and the field was thus limited to professionals and a few
1229 zealous and wealthy amateurs. (There was even an American Daguerre
1230 Association that helped regulate the industry, as do all such
1231 associations, by keeping competition down so as to keep prices up.)
1232 </p><a class="indexterm" name="idp7277408"></a><p>
1233 Yet despite high prices, the demand for daguerreotypes was strong.
1234 This pushed inventors to find simpler and cheaper ways to make
1235 <span class="quote">«<span class="quote">automatic pictures.</span>»</span> William Talbot soon discovered a process for
1236 making <span class="quote">«<span class="quote">negatives.</span>»</span> But because the negatives were glass, and had to
1237 be kept wet, the process still remained expensive and cumbersome. In
1238 the 1870s, dry plates were developed, making it easier to separate the
1239 taking of a picture from its developing. These were still plates of
1240 glass, and thus it was still not a process within reach of most
1241 amateurs.
1242 </p><a class="indexterm" name="idxeastmangeorge"></a><p>
1243 The technological change that made mass photography possible
1244 didn't happen until 1888, and was the creation of a single man. George
1245
1246 Eastman, himself an amateur photographer, was frustrated by the
1247 technology of photographs made with plates. In a flash of insight (so
1248 to speak), Eastman saw that if the film could be made to be flexible,
1249 it could be held on a single spindle. That roll could then be sent to
1250 a developer, driving the costs of photography down substantially. By
1251 lowering the costs, Eastman expected he could dramatically broaden the
1252 population of photographers.
1253 </p><a class="indexterm" name="idxkodakcameras"></a><a class="indexterm" name="idxkodakprimertheeastman"></a><p>
1254 Eastman developed flexible, emulsion-coated paper film and placed
1255 rolls of it in small, simple cameras: the Kodak. The device was
1256 marketed on the basis of its simplicity. <span class="quote">«<span class="quote">You press the button and we
1257 do the rest.</span>»</span><a href="#ftn.idp7285456" class="footnote" name="idp7285456"><sup class="footnote">[26]</sup></a> As he described in <em class="citetitle">The Kodak Primer</em>:
1258 </p><div class="blockquote"><blockquote class="blockquote"><p>
1259 The principle of the Kodak system is the separation of the work that
1260 any person whomsoever can do in making a photograph, from the work
1261 that only an expert can do. &#8230; We furnish anybody, man, woman or
1262 child, who has sufficient intelligence to point a box straight and
1263 press a button, with an instrument which altogether removes from the
1264 practice of photography the necessity for exceptional facilities or,
1265 in fact, any special knowledge of the art. It can be employed without
1266 preliminary study, without a darkroom and without
1267 chemicals.<a href="#ftn.idp7209168" class="footnote" name="idp7209168"><sup class="footnote">[27]</sup></a>
1268 </p></blockquote></div><a class="indexterm" name="idp7290608"></a><p>
1269 For $25, anyone could make pictures. The camera came preloaded
1270 with film, and when it had been used, the camera was returned to an
1271 Eastman factory, where the film was developed. Over time, of course,
1272 the cost of the camera and the ease with which it could be used both
1273 improved. Roll film thus became the basis for the explosive growth of
1274 popular photography. Eastman's camera first went on sale in 1888; one
1275 year later, Kodak was printing more than six thousand negatives a day.
1276 From 1888 through 1909, while industrial production was rising by 4.7
1277 percent, photographic equipment and material sales increased by 11
1278 percent.<a href="#ftn.idp7292480" class="footnote" name="idp7292480"><sup class="footnote">[28]</sup></a> Eastman Kodak's sales during the same period experienced
1279 an average annual increase of over 17 percent.<a href="#ftn.idp7293376" class="footnote" name="idp7293376"><sup class="footnote">[29]</sup></a>
1280 </p><a class="indexterm" name="idp7294272"></a><p>
1281
1282
1283 The real significance of Eastman's invention, however, was not
1284 economic. It was social. Professional photography gave individuals a
1285 glimpse of places they would never otherwise see. Amateur photography
1286 gave them the ability to record their own lives in a way they had
1287 never been able to do before. As author Brian Coe notes, <span class="quote">«<span class="quote">For the
1288 first time the snapshot album provided the man on the street with a
1289 permanent record of his family and its activities. &#8230; For the first
1290 time in history there exists an authentic visual record of the
1291 appearance and activities of the common man made without [literary]
1292 interpretation or bias.</span>»</span><a href="#ftn.idp7287888" class="footnote" name="idp7287888"><sup class="footnote">[30]</sup></a>
1293 </p><a class="indexterm" name="idp7297360"></a><a class="indexterm" name="idp7298368"></a><p>
1294 In this way, the Kodak camera and film were technologies of
1295 expression.  The pencil or paintbrush was also a technology of
1296 expression, of course. But it took years of training before they could
1297 be deployed by amateurs in any useful or effective way. With the
1298 Kodak, expression was possible much sooner and more simply. The
1299 barrier to expression was lowered. Snobs would sneer at its <span class="quote">«<span class="quote">quality</span>»</span>;
1300 professionals would discount it as irrelevant. But watch a child study
1301 how best to frame a picture and you get a sense of the experience of
1302 creativity that the Kodak enabled. Democratic tools gave ordinary
1303 people a way to express themselves more easily than any tools could
1304 have before.
1305 </p><a class="indexterm" name="idp7300848"></a><a class="indexterm" name="idxpermissionsphotographyexemptedfrom"></a><p>
1306 What was required for this technology to flourish? Obviously,
1307 Eastman's genius was an important part. But also important was the
1308 legal environment within which Eastman's invention grew. For early in
1309 the history of photography, there was a series of judicial decisions
1310 that could well have changed the course of photography substantially.
1311 Courts were asked whether the photographer, amateur or professional,
1312 required permission before he could capture and print whatever image
1313 he wanted. Their answer was no.<a href="#ftn.idp7304096" class="footnote" name="idp7304096"><sup class="footnote">[31]</sup></a>
1314 </p><a class="indexterm" name="idp7307296"></a><a class="indexterm" name="idxdisneywalt4"></a><a class="indexterm" name="idximagesownershipof"></a><p>
1315 The arguments in favor of requiring permission will sound surprisingly
1316 familiar. The photographer was <span class="quote">«<span class="quote">taking</span>»</span> something from the person or
1317 building whose photograph he shot&#8212;pirating something of
1318 value. Some even thought he was taking the target's soul. Just as
1319 Disney was not free to take the pencils that his animators used to
1320 draw
1321
1322 Mickey, so, too, should these photographers not be free to take images
1323 that they thought valuable.
1324 </p><a class="indexterm" name="idp7312304"></a><a class="indexterm" name="idp7313056"></a><a class="indexterm" name="idxcameratechnology2"></a><p>
1325 On the other side was an argument that should be familiar, as well.
1326 Sure, there may be something of value being used. But citizens should
1327 have the right to capture at least those images that stand in public view.
1328 (Louis Brandeis, who would become a Supreme Court Justice, thought
1329 the rule should be different for images from private spaces.<a href="#ftn.idp7315648" class="footnote" name="idp7315648"><sup class="footnote">[32]</sup></a>) It may be that this means that the photographer
1330 gets something for nothing. Just as Disney could take inspiration from
1331 <em class="citetitle">Steamboat Bill, Jr</em>. or the Brothers Grimm, the photographer should be
1332 free to capture an image without compensating the source.
1333 </p><a class="indexterm" name="idp7319600"></a><p>
1334 Fortunately for Mr. Eastman, and for photography in general, these
1335 early decisions went in favor of the pirates. In general, no
1336 permission would be required before an image could be captured and
1337 shared with others. Instead, permission was presumed. Freedom was the
1338 default.  (The law would eventually craft an exception for famous
1339 people: commercial photographers who snap pictures of famous people
1340 for commercial purposes have more restrictions than the rest of
1341 us. But in the ordinary case, the image can be captured without
1342 clearing the rights to do the capturing.<a href="#ftn.idp7321424" class="footnote" name="idp7321424"><sup class="footnote">[33]</sup></a>)
1343 </p><a class="indexterm" name="idp7324624"></a><a class="indexterm" name="idp7325376"></a><p>
1344 We can only speculate about how photography would have developed had
1345 the law gone the other way. If the presumption had been against the
1346 photographer, then the photographer would have had to demonstrate
1347 permission. Perhaps Eastman Kodak would have had to demonstrate
1348 permission, too, before it developed the film upon which images were
1349 captured. After all, if permission were not granted, then Eastman
1350 Kodak would be benefiting from the <span class="quote">«<span class="quote">theft</span>»</span> committed by the
1351 photographer. Just as Napster benefited from the copyright
1352 infringements committed by Napster users, Kodak would be benefiting
1353 from the <span class="quote">«<span class="quote">image-right</span>»</span> infringement of its photographers. We could
1354 imagine the law then requiring that some form of permission be
1355 demonstrated before a company developed pictures. We could imagine a
1356 system developing to demonstrate that permission.
1357 </p><a class="indexterm" name="idp7328144"></a><a class="indexterm" name="idxcameratechnology3"></a><a class="indexterm" name="idp7330352"></a><a class="indexterm" name="idp7331360"></a><p>
1358
1359
1360 But though we could imagine this system of permission, it would be
1361 very hard to see how photography could have flourished as it did if
1362 the requirement for permission had been built into the rules that
1363 govern it. Photography would have existed. It would have grown in
1364 importance over time. Professionals would have continued to use the
1365 technology as they did&#8212;since professionals could have more
1366 easily borne the burdens of the permission system. But the spread of
1367 photography to ordinary people would not have occurred. Nothing like
1368 that growth would have been realized. And certainly, nothing like that
1369 growth in a democratic technology of expression would have been
1370 realized.
1371 </p><a class="indexterm" name="idp7332880"></a><a class="indexterm" name="idp7334688"></a><a class="indexterm" name="idp7335664"></a><a class="indexterm" name="idp7336640"></a><a class="indexterm" name="idp7337616"></a><a class="indexterm" name="idxjustthink"></a><p>
1372 <span class="strong"><strong>If you drive</strong></span> through San
1373 Francisco's Presidio, you might see two gaudy yellow school buses
1374 painted over with colorful and striking images, and the logo
1375 <span class="quote">«<span class="quote">Just Think!</span>»</span> in place of the name of a school. But
1376 there's little that's <span class="quote">«<span class="quote">just</span>»</span> cerebral in the projects
1377 that these busses enable.  These buses are filled with technologies
1378 that teach kids to tinker with film. Not the film of Eastman. Not even
1379 the film of your VCR.  Rather the <span class="quote">«<span class="quote">film</span>»</span> of digital
1380 cameras. Just Think!  is a project that enables kids to make films, as
1381 a way to understand and critique the filmed culture that they find all
1382 around them. Each year, these busses travel to more than thirty
1383 schools and enable three hundred to five hundred children to learn
1384 something about media by doing something with media.  By doing, they
1385 think. By tinkering, they learn.
1386 </p><a class="indexterm" name="idxeducationinmedialiteracy"></a><a class="indexterm" name="idxmedialiteracy"></a><a class="indexterm" name="idxexpressiontechnologiesofmedialiteracyand"></a><p>
1387 These buses are not cheap, but the technology they carry is
1388 increasingly so. The cost of a high-quality digital video system has
1389 fallen dramatically.  As one analyst puts it, <span class="quote">«<span class="quote">Five years ago, a good
1390 real-time digital video editing system cost $25,000. Today you can get
1391 professional quality for $595.</span>»</span><a href="#ftn.idp7347664" class="footnote" name="idp7347664"><sup class="footnote">[34]</sup></a>
1392 These buses are filled with technology that would have cost hundreds
1393 of thousands just ten years ago. And it is now feasible to imagine not
1394 just buses like this, but classrooms across the country where kids are
1395 learning more and more of something teachers call <span class="quote">«<span class="quote">media literacy.</span>»</span>
1396 </p><a class="indexterm" name="idp7350352"></a><p>
1397
1398 <span class="quote">«<span class="quote">Media literacy,</span>»</span> as Dave Yanofsky, the executive director of Just
1399 Think!, puts it, <span class="quote">«<span class="quote">is the ability &#8230; to understand, analyze, and
1400 deconstruct media images. Its aim is to make [kids] literate about the
1401 way media works, the way it's constructed, the way it's delivered, and
1402 the way people access it.</span>»</span>
1403 </p><a class="indexterm" name="idp7352816"></a><p>
1404 This may seem like an odd way to think about <span class="quote">«<span class="quote">literacy.</span>»</span> For most
1405 people, literacy is about reading and writing. Faulkner and Hemingway
1406 and noticing split infinitives are the things that <span class="quote">«<span class="quote">literate</span>»</span> people know
1407 about.
1408 </p><a class="indexterm" name="idp7355088"></a><a class="indexterm" name="idp7355840"></a><a class="indexterm" name="idp7356592"></a><p>
1409 Maybe. But in a world where children see on average 390 hours of
1410 television commercials per year, or between 20,000 and 45,000
1411 commercials generally,<a href="#ftn.idp7358016" class="footnote" name="idp7358016"><sup class="footnote">[35]</sup></a>
1412 it is increasingly important to understand the <span class="quote">«<span class="quote">grammar</span>»</span> of media. For
1413 just as there is a grammar for the written word, so, too, is there one
1414 for media. And just as kids learn how to write by writing lots of
1415 terrible prose, kids learn how to write media by constructing lots of
1416 (at least at first) terrible media.
1417 </p><p>
1418 A growing field of academics and activists sees this form of literacy
1419 as crucial to the next generation of culture. For though anyone who
1420 has written understands how difficult writing is&#8212;how difficult
1421 it is to sequence the story, to keep a reader's attention, to craft
1422 language to be understandable&#8212;few of us have any real sense of
1423 how difficult media is. Or more fundamentally, few of us have a sense
1424 of how media works, how it holds an audience or leads it through a
1425 story, how it triggers emotion or builds suspense.
1426 </p><a class="indexterm" name="idp7360976"></a><p>
1427 It took filmmaking a generation before it could do these things well.
1428 But even then, the knowledge was in the filming, not in writing about
1429 the film. The skill came from experiencing the making of a film, not
1430 from reading a book about it. One learns to write by writing and then
1431 reflecting upon what one has written. One learns to write with images
1432 by making them and then reflecting upon what one has created.
1433 </p><a class="indexterm" name="idxdaleyelizabeth"></a><a class="indexterm" name="idp7364752"></a><p>
1434 This grammar has changed as media has changed. When it was just film,
1435 as Elizabeth Daley, executive director of the University of Southern
1436 California's Annenberg Center for Communication and dean of the
1437
1438
1439 USC School of Cinema-Television, explained to me, the grammar was
1440 about <span class="quote">«<span class="quote">the placement of objects, color, &#8230; rhythm, pacing, and
1441 texture.</span>»</span><a href="#ftn.idp7352336" class="footnote" name="idp7352336"><sup class="footnote">[36]</sup></a>
1442 But as computers open up an interactive space where a story is
1443 <span class="quote">«<span class="quote">played</span>»</span> as well as experienced, that grammar changes. The simple
1444 control of narrative is lost, and so other techniques are necessary. Author
1445 Michael Crichton had mastered the narrative of science fiction.
1446 But when he tried to design a computer game based on one of his
1447 works, it was a new craft he had to learn. How to lead people through
1448 a game without their feeling they have been led was not obvious, even
1449 to a wildly successful author.<a href="#ftn.idp7370000" class="footnote" name="idp7370000"><sup class="footnote">[37]</sup></a>
1450 </p><a class="indexterm" name="idp7372912"></a><p>
1451 This skill is precisely the craft a filmmaker learns. As Daley
1452 describes, <span class="quote">«<span class="quote">people are very surprised about how they are led through a
1453 film. [I]t is perfectly constructed to keep you from seeing it, so you
1454 have no idea. If a filmmaker succeeds you do not know how you were
1455 led.</span>»</span> If you know you were led through a film, the film has failed.
1456 </p><p>
1457 Yet the push for an expanded literacy&#8212;one that goes beyond text
1458 to include audio and visual elements&#8212;is not about making better
1459 film directors.  The aim is not to improve the profession of
1460 filmmaking at all.  Instead, as Daley explained,
1461 </p><div class="blockquote"><blockquote class="blockquote"><p>
1462 From my perspective, probably the most important digital divide
1463 is not access to a box. It's the ability to be empowered with the
1464 language that that box works in. Otherwise only a very few people
1465 can write with this language, and all the rest of us are reduced to
1466 being read-only.
1467 </p></blockquote></div><p>
1468 <span class="quote">«<span class="quote">Read-only.</span>»</span> Passive recipients of culture produced elsewhere.
1469 Couch potatoes. Consumers. This is the world of media from the
1470 twentieth century.
1471 </p><p>
1472 The twenty-first century could be different. This is the crucial
1473 point: It could be both read and write. Or at least reading and better
1474 understanding the craft of writing. Or best, reading and understanding
1475 the tools that enable the writing to lead or mislead. The aim of any
1476 literacy,
1477
1478 and this literacy in particular, is to <span class="quote">«<span class="quote">empower people to choose the
1479 appropriate language for what they need to create or
1480 express.</span>»</span><a href="#ftn.idp7378640" class="footnote" name="idp7378640"><sup class="footnote">[38]</sup></a> It is to enable students <span class="quote">«<span class="quote">to communicate in the
1481 language of the twenty-first century.</span>»</span><a href="#ftn.idp7380624" class="footnote" name="idp7380624"><sup class="footnote">[39]</sup></a>
1482 </p><a class="indexterm" name="idxbarishstephanie"></a><p>
1483 As with any language, this language comes more easily to some than to
1484 others. It doesn't necessarily come more easily to those who excel in
1485 written language. Daley and Stephanie Barish, director of the
1486 Institute for Multimedia Literacy at the Annenberg Center, describe
1487 one particularly poignant example of a project they ran in a high
1488 school.  The high school was a very poor inner-city Los Angeles
1489 school. In all the traditional measures of success, this school was a
1490 failure. But Daley and Barish ran a program that gave kids an
1491 opportunity to use film to express meaning about something the
1492 students know something about&#8212;gun violence.
1493 </p><a class="indexterm" name="idp7383008"></a><p>
1494 The class was held on Friday afternoons, and it created a relatively
1495 new problem for the school. While the challenge in most classes was
1496 getting the kids to come, the challenge in this class was keeping them
1497 away. The <span class="quote">«<span class="quote">kids were showing up at 6 A.M. and leaving at 5 at night,</span>»</span>
1498 said Barish. They were working harder than in any other class to do
1499 what education should be about&#8212;learning how to express themselves.
1500 </p><p>
1501 Using whatever <span class="quote">«<span class="quote">free web stuff they could find,</span>»</span> and relatively simple
1502 tools to enable the kids to mix <span class="quote">«<span class="quote">image, sound, and text,</span>»</span> Barish said
1503 this class produced a series of projects that showed something about
1504 gun violence that few would otherwise understand. This was an issue
1505 close to the lives of these students. The project <span class="quote">«<span class="quote">gave them a tool
1506 and empowered them to be able to both understand it and talk about
1507 it,</span>»</span> Barish explained. That tool succeeded in creating
1508 expression&#8212;far more successfully and powerfully than could have
1509 been created using only text. <span class="quote">«<span class="quote">If you had said to these students, `you
1510 have to do it in text,' they would've just thrown their hands up and
1511 gone and done something else,</span>»</span> Barish described, in part, no doubt,
1512 because expressing themselves in text is not something these students
1513 can do well. Yet neither is text a form in which
1514 <span class="emphasis"><em>these</em></span> ideas can be expressed well. The power of
1515 this message depended upon its connection to this form of expression.
1516 </p><a class="indexterm" name="idp7389728"></a><a class="indexterm" name="idxdaleyelizabeth2"></a><p>
1517
1518
1519 <span class="quote">«<span class="quote">But isn't education about teaching kids to write?</span>»</span> I asked. In part,
1520 of course, it is. But why are we teaching kids to write? Education,
1521 Daley explained, is about giving students a way of <span class="quote">«<span class="quote">constructing
1522 meaning.</span>»</span>  To say that that means just writing is like saying teaching
1523 writing is only about teaching kids how to spell. Text is one
1524 part&#8212;and increasingly, not the most powerful part&#8212;of
1525 constructing meaning. As Daley explained in the most moving part of
1526 our interview,
1527 </p><div class="blockquote"><blockquote class="blockquote"><p>
1528 What you want is to give these students ways of constructing
1529 meaning. If all you give them is text, they're not going to do it.
1530 Because they can't. You know, you've got Johnny who can look at a
1531 video, he can play a video game, he can do graffiti all over your
1532 walls, he can take your car apart, and he can do all sorts of other
1533 things. He just can't read your text. So Johnny comes to school and
1534 you say, <span class="quote">«<span class="quote">Johnny, you're illiterate. Nothing you can do matters.</span>»</span>
1535 Well, Johnny then has two choices: He can dismiss you or he [can]
1536 dismiss himself. If his ego is healthy at all, he's going to dismiss
1537 you. [But i]nstead, if you say, <span class="quote">«<span class="quote">Well, with all these things that you
1538 can do, let's talk about this issue. Play for me music that you think
1539 reflects that, or show me images that you think reflect that, or draw
1540 for me something that reflects that.</span>»</span> Not by giving a kid a video
1541 camera and &#8230; saying, <span class="quote">«<span class="quote">Let's go have fun with the video camera and
1542 make a little movie.</span>»</span> But instead, really help you take these elements
1543 that you understand, that are your language, and construct meaning
1544 about the topic.&#8230;
1545 </p><a class="indexterm" name="idp7396192"></a><p>
1546 That empowers enormously. And then what happens, of
1547 course, is eventually, as it has happened in all these classes, they
1548 bump up against the fact, <span class="quote">«<span class="quote">I need to explain this and I really need
1549 to write something.</span>»</span> And as one of the teachers told Stephanie,
1550 they would rewrite a paragraph 5, 6, 7, 8 times, till they got it right.
1551 </p><p>
1552 Because they needed to. There was a reason for doing it. They
1553 needed to say something, as opposed to just jumping through
1554 your hoops. They actually needed to use a language that they
1555
1556 didn't speak very well. But they had come to understand that they
1557 had a lot of power with this language.
1558 </p></blockquote></div><a class="indexterm" name="idp7399872"></a><a class="indexterm" name="idp7400848"></a><a class="indexterm" name="idp7401824"></a><a class="indexterm" name="idp7402800"></a><a class="indexterm" name="idxseptemberterroristattacksof"></a><a class="indexterm" name="idp7405008"></a><a class="indexterm" name="idxnewscoverage"></a><p>
1559 <span class="strong"><strong>When two planes</strong></span> crashed into the
1560 World Trade Center, another into the Pentagon, and a fourth into a
1561 Pennsylvania field, all media around the world shifted to this
1562 news. Every moment of just about every day for that week, and for
1563 weeks after, television in particular, and media generally, retold the
1564 story of the events we had just witnessed. The telling was a
1565 retelling, because we had seen the events that were described. The
1566 genius of this awful act of terrorism was that the delayed second
1567 attack was perfectly timed to assure that the whole world would be
1568 watching.
1569 </p><p>
1570 These retellings had an increasingly familiar feel. There was music
1571 scored for the intermissions, and fancy graphics that flashed across
1572 the screen. There was a formula to interviews. There was <span class="quote">«<span class="quote">balance,</span>»</span>
1573 and seriousness. This was news choreographed in the way we have
1574 increasingly come to expect it, <span class="quote">«<span class="quote">news as entertainment,</span>»</span> even if the
1575 entertainment is tragedy.
1576 </p><a class="indexterm" name="idp4096"></a><a class="indexterm" name="idp4880"></a><p>
1577 But in addition to this produced news about the <span class="quote">«<span class="quote">tragedy of September
1578 11,</span>»</span> those of us tied to the Internet came to see a very different
1579 production as well. The Internet was filled with accounts of the same
1580 events. Yet these Internet accounts had a very different flavor. Some
1581 people constructed photo pages that captured images from around the
1582 world and presented them as slide shows with text. Some offered open
1583 letters. There were sound recordings. There was anger and frustration.
1584 There were attempts to provide context. There was, in short, an
1585 extraordinary worldwide barn raising, in the sense Mike Godwin uses
1586 the term in his book <em class="citetitle">Cyber Rights</em>, around a news event that had
1587 captured the attention of the world. There was ABC and CBS, but there
1588 was also the Internet.
1589 </p><a class="indexterm" name="idp7616"></a><p>
1590 I don't mean simply to praise the Internet&#8212;though I do think the
1591 people who supported this form of speech should be praised. I mean
1592 instead to point to a significance in this form of speech. For like a
1593 Kodak, the Internet enables people to capture images. And like in a
1594 movie
1595
1596 by a student on the <span class="quote">«<span class="quote">Just Think!</span>»</span> bus, the visual images could be mixed
1597 with sound or text.
1598 </p><p>
1599 But unlike any technology for simply capturing images, the Internet
1600 allows these creations to be shared with an extraordinary number of
1601 people, practically instantaneously. This is something new in our
1602 tradition&#8212;not just that culture can be captured mechanically,
1603 and obviously not just that events are commented upon critically, but
1604 that this mix of captured images, sound, and commentary can be widely
1605 spread practically instantaneously.
1606 </p><a class="indexterm" name="idp7424976"></a><a class="indexterm" name="idxblogsweblogs"></a><a class="indexterm" name="idxinternetblogson"></a><a class="indexterm" name="idxweblogsblogs"></a><p>
1607 September 11 was not an aberration. It was a beginning. Around the
1608 same time, a form of communication that has grown dramatically was
1609 just beginning to come into public consciousness: the Web-log, or
1610 blog. The blog is a kind of public diary, and within some cultures,
1611 such as in Japan, it functions very much like a diary. In those
1612 cultures, it records private facts in a public way&#8212;it's a kind
1613 of electronic <em class="citetitle">Jerry Springer</em>, available anywhere in the world.
1614 </p><a class="indexterm" name="idp7431712"></a><a class="indexterm" name="idxinternetpublicdiscourseconductedon"></a><p>
1615 But in the United States, blogs have taken on a very different
1616 character.  There are some who use the space simply to talk about
1617 their private life. But there are many who use the space to engage in
1618 public discourse. Discussing matters of public import, criticizing
1619 others who are mistaken in their views, criticizing politicians about
1620 the decisions they make, offering solutions to problems we all see:
1621 blogs create the sense of a virtual public meeting, but one in which
1622 we don't all hope to be there at the same time and in which
1623 conversations are not necessarily linked. The best of the blog entries
1624 are relatively short; they point directly to words used by others,
1625 criticizing with or adding to them.  They are arguably the most
1626 important form of unchoreographed public discourse that we have.
1627 </p><a class="indexterm" name="idxdemocracyintechnologiesofexpression"></a><a class="indexterm" name="idxelections"></a><a class="indexterm" name="idxexpressiontechnologiesofdemocratic"></a><p>
1628 That's a strong statement. Yet it says as much about our democracy as
1629 it does about blogs. This is the part of America that is most
1630 difficult for those of us who love America to accept: Our democracy
1631 has atrophied.  Of course we have elections, and most of the time the
1632 courts allow those elections to count. A relatively small number of
1633 people vote
1634
1635 in those elections. The cycle of these elections has become totally
1636 professionalized and routinized. Most of us think this is democracy.
1637 </p><a class="indexterm" name="idp7441328"></a><a class="indexterm" name="idp7442304"></a><a class="indexterm" name="idp7443280"></a><a class="indexterm" name="idp7444256"></a><a class="indexterm" name="idxdemocracypublicdiscoursein"></a><a class="indexterm" name="idp7446496"></a><p>
1638 But democracy has never just been about elections. Democracy
1639 means rule by the people, but rule means something more than mere
1640 elections. In our tradition, it also means control through reasoned
1641 discourse.  This was the idea that captured the imagination of Alexis
1642 de Tocqueville, the nineteenth-century French lawyer who wrote the
1643 most important account of early <span class="quote">«<span class="quote">Democracy in America.</span>»</span> It wasn't
1644 popular elections that fascinated him&#8212;it was the jury, an
1645 institution that gave ordinary people the right to choose life or
1646 death for other citizens.  And most fascinating for him was that the
1647 jury didn't just vote about the outcome they would impose. They
1648 deliberated. Members argued about the <span class="quote">«<span class="quote">right</span>»</span> result; they tried to
1649 persuade each other of the <span class="quote">«<span class="quote">right</span>»</span> result, and in criminal cases at
1650 least, they had to agree upon a unanimous result for the process to
1651 come to an end.<a href="#ftn.idp7449488" class="footnote" name="idp7449488"><sup class="footnote">[40]</sup></a>
1652 </p><a class="indexterm" name="idp7450768"></a><p>
1653 Yet even this institution flags in American life today. And in its
1654 place, there is no systematic effort to enable citizen deliberation. Some
1655 are pushing to create just such an institution.<a href="#ftn.idp7452208" class="footnote" name="idp7452208"><sup class="footnote">[41]</sup></a>
1656 And in some towns in New England, something close to deliberation
1657 remains. But for most of us for most of the time, there is no time or
1658 place for <span class="quote">«<span class="quote">democratic deliberation</span>»</span> to occur.
1659 </p><a class="indexterm" name="idxpoliticaldiscourse"></a><p>
1660 More bizarrely, there is generally not even permission for it to
1661 occur.  We, the most powerful democracy in the world, have developed a
1662 strong norm against talking about politics. It's fine to talk about
1663 politics with people you agree with. But it is rude to argue about
1664 politics with people you disagree with. Political discourse becomes
1665 isolated, and isolated discourse becomes more extreme.<a href="#ftn.idp7456320" class="footnote" name="idp7456320"><sup class="footnote">[42]</sup></a> We say what our friends want to hear, and hear very
1666 little beyond what our friends say.
1667 </p><a class="indexterm" name="idxblogsweblogs2"></a><a class="indexterm" name="idp7458944"></a><a class="indexterm" name="idxinternetblogson2"></a><a class="indexterm" name="idxweblogsblogs2"></a><a class="indexterm" name="idp7462416"></a><a class="indexterm" name="idp7463392"></a><a class="indexterm" name="idp7464368"></a><p>
1668 Enter the blog. The blog's very architecture solves one part of this
1669 problem. People post when they want to post, and people read when they
1670 want to read. The most difficult time is synchronous time.
1671 Technologies that enable asynchronous communication, such as e-mail,
1672 increase the opportunity for communication. Blogs allow for public
1673
1674
1675 discourse without the public ever needing to gather in a single public
1676 place.
1677 </p><p>
1678 But beyond architecture, blogs also have solved the problem of
1679 norms. There's no norm (yet) in blog space not to talk about politics.
1680 Indeed, the space is filled with political speech, on both the right and
1681 the left. Some of the most popular sites are conservative or libertarian,
1682 but there are many of all political stripes. And even blogs that are not
1683 political cover political issues when the occasion merits.
1684 </p><a class="indexterm" name="idp7467248"></a><p>
1685 The significance of these blogs is tiny now, though not so tiny. The
1686 name Howard Dean may well have faded from the 2004 presidential race
1687 but for blogs. Yet even if the number of readers is small, the reading
1688 is having an effect.
1689 </p><a class="indexterm" name="idp7468624"></a><a class="indexterm" name="idp7469376"></a><a class="indexterm" name="idxmediablogpressureon"></a><a class="indexterm" name="idxinternetnewseventson2"></a><p>
1690 One direct effect is on stories that had a different life cycle in the
1691 mainstream media. The Trent Lott affair is an example. When Lott
1692 <span class="quote">«<span class="quote">misspoke</span>»</span> at a party for Senator Strom Thurmond, essentially praising
1693 Thurmond's segregationist policies, he calculated correctly that this
1694 story would disappear from the mainstream press within forty-eight
1695 hours. It did. But he didn't calculate its life cycle in blog
1696 space. The bloggers kept researching the story. Over time, more and
1697 more instances of the same <span class="quote">«<span class="quote">misspeaking</span>»</span> emerged. Finally, the story
1698 broke back into the mainstream press. In the end, Lott was forced to
1699 resign as senate majority leader.<a href="#ftn.idp7474800" class="footnote" name="idp7474800"><sup class="footnote">[43]</sup></a>
1700 </p><a class="indexterm" name="idxmediacommercialimperativesof"></a><p>
1701 This different cycle is possible because the same commercial pressures
1702 don't exist with blogs as with other ventures. Television and
1703 newspapers are commercial entities. They must work to keep attention.
1704 If they lose readers, they lose revenue. Like sharks, they must move
1705 on.
1706 </p><a class="indexterm" name="idp7478240"></a><a class="indexterm" name="idp7479216"></a><p>
1707 But bloggers don't have a similar constraint. They can obsess, they
1708 can focus, they can get serious. If a particular blogger writes a
1709 particularly interesting story, more and more people link to that
1710 story. And as the number of links to a particular story increases, it
1711 rises in the ranks of stories. People read what is popular; what is
1712 popular has been selected by a very democratic process of
1713 peer-generated rankings.
1714 </p><a class="indexterm" name="idp7481040"></a><a class="indexterm" name="idxjournalism"></a><a class="indexterm" name="idxwinerdave"></a><p>
1715 There's a second way, as well, in which blogs have a different cycle
1716
1717 from the mainstream press. As Dave Winer, one of the fathers of this
1718 movement and a software author for many decades, told me, another
1719 difference is the absence of a financial <span class="quote">«<span class="quote">conflict of interest.</span>»</span> <span class="quote">«<span class="quote">I think you
1720 have to take the conflict of interest</span>»</span> out of journalism, Winer told me.
1721 <span class="quote">«<span class="quote">An amateur journalist simply doesn't have a conflict of interest, or the
1722 conflict of interest is so easily disclosed that you know you can sort of
1723 get it out of the way.</span>»</span>
1724 </p><a class="indexterm" name="idp7486736"></a><a class="indexterm" name="idp7487488"></a><a class="indexterm" name="idp7488496"></a><a class="indexterm" name="idp7489248"></a><p>
1725 These conflicts become more important as media becomes more
1726 concentrated (more on this below). A concentrated media can hide more
1727 from the public than an unconcentrated media can&#8212;as CNN admitted
1728 it did after the Iraq war because it was afraid of the consequences to
1729 its own employees.<a href="#ftn.idp7448272" class="footnote" name="idp7448272"><sup class="footnote">[44]</sup></a>
1730 It also needs to sustain a more coherent account. (In the middle of
1731 the Iraq war, I read a post on the Internet from someone who was at
1732 that time listening to a satellite uplink with a reporter in Iraq. The
1733 New York headquarters was telling the reporter over and over that her
1734 account of the war was too bleak: She needed to offer a more
1735 optimistic story. When she told New York that wasn't warranted, they
1736 told her that <span class="emphasis"><em>they</em></span> were writing <span class="quote">«<span class="quote">the story.</span>»</span>)
1737 </p><a class="indexterm" name="idp7492976"></a><p>
1738 Blog space gives amateurs a way to enter the
1739 debate&#8212;<span class="quote">«<span class="quote">amateur</span>»</span> not in the sense of inexperienced,
1740 but in the sense of an Olympic athlete, meaning not paid by anyone to
1741 give their reports. It allows for a much broader range of input into a
1742 story, as reporting on the Columbia disaster revealed, when hundreds
1743 from across the southwest United States turned to the Internet to
1744 retell what they had seen.<a href="#ftn.idp7494944" class="footnote" name="idp7494944"><sup class="footnote">[45]</sup></a>
1745 And it drives readers to read across the range of accounts and
1746 <span class="quote">«<span class="quote">triangulate,</span>»</span> as Winer puts it, the truth. Blogs, Winer says, are
1747 <span class="quote">«<span class="quote">communicating directly with our constituency, and the middle man is
1748 out of it</span>»</span>&#8212;with all the benefits, and costs, that might entail.
1749 </p><p>
1750 Winer is optimistic about the future of journalism infected
1751 with blogs. <span class="quote">«<span class="quote">It's going to become an essential skill,</span>»</span> Winer predicts,
1752 for public figures and increasingly for private figures as well. It's
1753 not clear that <span class="quote">«<span class="quote">journalism</span>»</span> is happy about this&#8212;some journalists
1754 have been told to curtail their blogging.<a href="#ftn.idp7498464" class="footnote" name="idp7498464"><sup class="footnote">[46]</sup></a>
1755 But it is clear that we are still in transition. <span class="quote">«<span class="quote">A
1756
1757
1758 lot of what we are doing now is warm-up exercises,</span>»</span> Winer told me.
1759 There is a lot that must mature before this space has its mature effect.
1760 And as the inclusion of content in this space is the least infringing use
1761 of the Internet (meaning infringing on copyright), Winer said, <span class="quote">«<span class="quote">we will
1762 be the last thing that gets shut down.</span>»</span>
1763 </p><a class="indexterm" name="idp7507392"></a><p>
1764 This speech affects democracy. Winer thinks that happens because <span class="quote">«<span class="quote">you
1765 don't have to work for somebody who controls, [for] a gatekeeper.</span>»</span>
1766 That is true. But it affects democracy in another way as well.  As
1767 more and more citizens express what they think, and defend it in
1768 writing, that will change the way people understand public issues. It
1769 is easy to be wrong and misguided in your head. It is harder when the
1770 product of your mind can be criticized by others. Of course, it is a
1771 rare human who admits that he has been persuaded that he is wrong. But
1772 it is even rarer for a human to ignore when he has been proven wrong.
1773 The writing of ideas, arguments, and criticism improves democracy.
1774 Today there are probably a couple of million blogs where such writing
1775 happens. When there are ten million, there will be something
1776 extraordinary to report.
1777 </p><a class="indexterm" name="idp7510016"></a><a class="indexterm" name="idp7510992"></a><a class="indexterm" name="idp7511968"></a><a class="indexterm" name="idp7512944"></a><a class="indexterm" name="idp7513920"></a><a class="indexterm" name="idp7514896"></a><a class="indexterm" name="idp7515872"></a><a class="indexterm" name="idxbrownjohnseely"></a><a class="indexterm" name="idxadvertising1"></a><p>
1778 <span class="strong"><strong>John Seely Brown</strong></span> is the chief
1779 scientist of the Xerox Corporation.  His work, as his Web site
1780 describes it, is <span class="quote">«<span class="quote">human learning and &#8230; the creation of
1781 knowledge ecologies for creating &#8230; innovation.</span>»</span>
1782 </p><p>
1783 Brown thus looks at these technologies of digital creativity a bit
1784 differently from the perspectives I've sketched so far. I'm sure he
1785 would be excited about any technology that might improve
1786 democracy. But his real excitement comes from how these technologies
1787 affect learning.
1788 </p><p>
1789 As Brown believes, we learn by tinkering. When <span class="quote">«<span class="quote">a lot of us grew up,</span>»</span>
1790 he explains, that tinkering was done <span class="quote">«<span class="quote">on motorcycle engines, lawnmower
1791 engines, automobiles, radios, and so on.</span>»</span> But digital technologies
1792 enable a different kind of tinkering&#8212;with abstract ideas though
1793 in concrete form. The kids at Just Think! not only think about how a
1794 commercial portrays a politician; using digital technology, they can
1795
1796 take the commercial apart and manipulate it, tinker with it to see how
1797 it does what it does. Digital technologies launch a kind of bricolage,
1798 or <span class="quote">«<span class="quote">free collage,</span>»</span> as Brown calls it. Many get to add to or transform
1799 the tinkering of many others.
1800 </p><p>
1801 The best large-scale example of this kind of tinkering so far is free
1802 software or open-source software (FS/OSS). FS/OSS is software whose
1803 source code is shared. Anyone can download the technology that makes a
1804 FS/OSS program run. And anyone eager to learn how a particular bit of
1805 FS/OSS technology works can tinker with the code.
1806 </p><p>
1807 This opportunity creates a <span class="quote">«<span class="quote">completely new kind of learning platform,</span>»</span>
1808 as Brown describes. <span class="quote">«<span class="quote">As soon as you start doing that, you &#8230;
1809 unleash a free collage on the community, so that other people can
1810 start looking at your code, tinkering with it, trying it out, seeing
1811 if they can improve it.</span>»</span> Each effort is a kind of
1812 apprenticeship. <span class="quote">«<span class="quote">Open source becomes a major apprenticeship platform.</span>»</span>
1813 </p><p>
1814 In this process, <span class="quote">«<span class="quote">the concrete things you tinker with are abstract.
1815 They are code.</span>»</span> Kids are <span class="quote">«<span class="quote">shifting to the ability to tinker in the
1816 abstract, and this tinkering is no longer an isolated activity that
1817 you're doing in your garage. You are tinkering with a community
1818 platform. &#8230;  You are tinkering with other people's stuff. The more
1819 you tinker the more you improve.</span>»</span> The more you improve, the more you
1820 learn.
1821 </p><p>
1822 This same thing happens with content, too. And it happens in the same
1823 collaborative way when that content is part of the Web. As Brown puts
1824 it, <span class="quote">«<span class="quote">the Web [is] the first medium that truly honors multiple forms of
1825 intelligence.</span>»</span> Earlier technologies, such as the typewriter or word
1826 processors, helped amplify text. But the Web amplifies much more than
1827 text. <span class="quote">«<span class="quote">The Web &#8230; says if you are musical, if you are artistic, if
1828 you are visual, if you are interested in film &#8230; [then] there is a
1829 lot you can start to do on this medium. [It] can now amplify and honor
1830 these multiple forms of intelligence.</span>»</span>
1831 </p><a class="indexterm" name="idp7529840"></a><a class="indexterm" name="idp7530816"></a><p>
1832 Brown is talking about what Elizabeth Daley, Stephanie Barish, and
1833 Just Think! teach: that this tinkering with culture teaches as well
1834
1835
1836 as creates. It develops talents differently, and it builds a different
1837 kind of recognition.
1838 </p><p>
1839 Yet the freedom to tinker with these objects is not guaranteed.
1840 Indeed, as we'll see through the course of this book, that freedom is
1841 increasingly highly contested. While there's no doubt that your father
1842 had the right to tinker with the car engine, there's great doubt that
1843 your child will have the right to tinker with the images she finds all
1844 around.  The law and, increasingly, technology interfere with a
1845 freedom that technology, and curiosity, would otherwise ensure.
1846 </p><p>
1847 These restrictions have become the focus of researchers and scholars.
1848 Professor Ed Felten of Princeton (whom we'll see more of in chapter
1849 <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>)
1850 has developed a powerful argument in favor of the <span class="quote">«<span class="quote">right to
1851 tinker</span>»</span> as it applies to computer science and to knowledge in
1852 general.<a href="#ftn.idp7534976" class="footnote" name="idp7534976"><sup class="footnote">[47]</sup></a>
1853 But Brown's concern is earlier, or younger, or more fundamental. It is
1854 about the learning that kids can do, or can't do, because of the law.
1855 </p><p>
1856 <span class="quote">«<span class="quote">This is where education in the twenty-first century is going,</span>»</span> Brown
1857 explains. We need to <span class="quote">«<span class="quote">understand how kids who grow up digital think
1858 and want to learn.</span>»</span>
1859 </p><p>
1860 <span class="quote">«<span class="quote">Yet,</span>»</span> as Brown continued, and as the balance of this book will
1861 evince, <span class="quote">«<span class="quote">we are building a legal system that completely suppresses the
1862 natural tendencies of today's digital kids. &#8230; We're building an
1863 architecture that unleashes 60 percent of the brain [and] a legal
1864 system that closes down that part of the brain.</span>»</span>
1865 </p><a class="indexterm" name="idp7539760"></a><p>
1866 We're building a technology that takes the magic of Kodak, mixes
1867 moving images and sound, and adds a space for commentary and an
1868 opportunity to spread that creativity everywhere. But we're building
1869 the law to close down that technology.
1870 </p><p>
1871 <span class="quote">«<span class="quote">No way to run a culture,</span>»</span> as Brewster Kahle, whom we'll meet in
1872 chapter <a class="xref" href="#collectors" title="Chapter 9. Chapter Nine: Collectors">9</a>,
1873 quipped to me in a rare moment of despondence.
1874 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7285456" class="footnote"><p><a href="#idp7285456" class="para"><sup class="para">[26] </sup></a>
1875
1876 Reese V. Jenkins, <em class="citetitle">Images and Enterprise</em> (Baltimore: Johns Hopkins University Press, 1975), 112.
1877 </p></div><div id="ftn.idp7209168" class="footnote"><p><a href="#idp7209168" class="para"><sup class="para">[27] </sup></a>
1878
1879 <a class="indexterm" name="idp7289088"></a>
1880 Brian Coe, <em class="citetitle">The Birth of Photography</em> (New York: Taplinger Publishing,
1881 1977), 53.
1882 </p></div><div id="ftn.idp7292480" class="footnote"><p><a href="#idp7292480" class="para"><sup class="para">[28] </sup></a>
1883
1884 Jenkins, 177.
1885 </p></div><div id="ftn.idp7293376" class="footnote"><p><a href="#idp7293376" class="para"><sup class="para">[29] </sup></a>
1886
1887 Based on a chart in Jenkins, p. 178.
1888 </p></div><div id="ftn.idp7287888" class="footnote"><p><a href="#idp7287888" class="para"><sup class="para">[30] </sup></a>
1889
1890 Coe, 58.
1891 </p></div><div id="ftn.idp7304096" class="footnote"><p><a href="#idp7304096" class="para"><sup class="para">[31] </sup></a>
1892
1893 For illustrative cases, see, for example, <em class="citetitle">Pavesich</em>
1894 v. <em class="citetitle">N.E. Life Ins. Co</em>., 50 S.E. 68 (Ga. 1905);
1895 <em class="citetitle">Foster-Milburn Co</em>. v. <em class="citetitle">Chinn</em>, 123090 S.W. 364, 366
1896 (Ky. 1909); <em class="citetitle">Corliss</em> v. <em class="citetitle">Walker</em>, 64 F. 280 (Mass.
1897 Dist. Ct. 1894).
1898 </p></div><div id="ftn.idp7315648" class="footnote"><p><a href="#idp7315648" class="para"><sup class="para">[32] </sup></a>
1899
1900 Samuel D. Warren and Louis D. Brandeis, <span class="quote">«<span class="quote">The Right to Privacy,</span>»</span>
1901 <em class="citetitle">Harvard Law Review</em> 4 (1890): 193.
1902 <a class="indexterm" name="idp7317184"></a>
1903 <a class="indexterm" name="idp7317936"></a>
1904 </p></div><div id="ftn.idp7321424" class="footnote"><p><a href="#idp7321424" class="para"><sup class="para">[33] </sup></a>
1905
1906 See Melville B. Nimmer, <span class="quote">«<span class="quote">The Right of Publicity,</span>»</span> <em class="citetitle">Law and Contemporary
1907 Problems</em> 19 (1954): 203; William L. Prosser, <span class="quote">«<span class="quote">Privacy,</span>»</span> <em class="citetitle">California Law
1908 Review</em> 48 (1960) 398&#8211;407; <em class="citetitle">White</em> v. <em class="citetitle">Samsung Electronics America,
1909 Inc</em>., 971 F.  2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951
1910 (1993).
1911 </p></div><div id="ftn.idp7347664" class="footnote"><p><a href="#idp7347664" class="para"><sup class="para">[34] </sup></a>
1912
1913 H. Edward Goldberg, <span class="quote">«<span class="quote">Essential Presentation Tools: Hardware and
1914 Software You Need to Create Digital Multimedia Presentations,</span>»</span>
1915 cadalyst, February 2002, available at
1916 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #7</a>.
1917 </p></div><div id="ftn.idp7358016" class="footnote"><p><a href="#idp7358016" class="para"><sup class="para">[35] </sup></a>
1918
1919 Judith Van Evra, <em class="citetitle">Television and Child Development</em> (Hillsdale, N.J.:
1920 Lawrence Erlbaum Associates, 1990); <span class="quote">«<span class="quote">Findings on Family and TV
1921 Study,</span>»</span> <em class="citetitle">Denver Post</em>, 25 May 1997, B6.
1922 </p></div><div id="ftn.idp7352336" class="footnote"><p><a href="#idp7352336" class="para"><sup class="para">[36] </sup></a>
1923
1924 Interview with Elizabeth Daley and Stephanie Barish, 13 December
1925 2002.
1926 <a class="indexterm" name="idp7367456"></a>
1927 <a class="indexterm" name="idp7368208"></a>
1928 </p></div><div id="ftn.idp7370000" class="footnote"><p><a href="#idp7370000" class="para"><sup class="para">[37] </sup></a>
1929
1930 See Scott Steinberg, <span class="quote">«<span class="quote">Crichton Gets Medieval on PCs,</span>»</span> E!online, 4
1931 November 2000, available at
1932 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #8</a>; <span class="quote">«<span class="quote">Timeline,</span>»</span> 22 November 2000,
1933 available at
1934 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #9</a>.
1935 </p></div><div id="ftn.idp7378640" class="footnote"><p><a href="#idp7378640" class="para"><sup class="para">[38] </sup></a>
1936
1937 Interview with Daley and Barish.
1938 <a class="indexterm" name="idp7379408"></a>
1939 </p></div><div id="ftn.idp7380624" class="footnote"><p><a href="#idp7380624" class="para"><sup class="para">[39] </sup></a>
1940
1941 Ibid.
1942 </p></div><div id="ftn.idp7449488" class="footnote"><p><a href="#idp7449488" class="para"><sup class="para">[40] </sup></a>
1943
1944 See, for example, Alexis de Tocqueville, <em class="citetitle">Democracy in America</em>,
1945 bk. 1, trans.  Henry Reeve (New York: Bantam Books, 2000), ch. 16.
1946 </p></div><div id="ftn.idp7452208" class="footnote"><p><a href="#idp7452208" class="para"><sup class="para">[41] </sup></a>
1947
1948 Bruce Ackerman and James Fishkin, <span class="quote">«<span class="quote">Deliberation Day,</span>»</span> <em class="citetitle">Journal of
1949 Political Philosophy</em> 10 (2) (2002): 129.
1950 </p></div><div id="ftn.idp7456320" class="footnote"><p><a href="#idp7456320" class="para"><sup class="para">[42] </sup></a>
1951
1952 Cass Sunstein, <em class="citetitle">Republic.com</em> (Princeton: Princeton University Press, 2001),
1953 65&#8211;80, 175, 182, 183, 192.
1954 </p></div><div id="ftn.idp7474800" class="footnote"><p><a href="#idp7474800" class="para"><sup class="para">[43] </sup></a>
1955
1956 Noah Shachtman, <span class="quote">«<span class="quote">With Incessant Postings, a Pundit Stirs the Pot,</span>»</span> New
1957 York Times, 16 January 2003, G5.
1958 </p></div><div id="ftn.idp7448272" class="footnote"><p><a href="#idp7448272" class="para"><sup class="para">[44] </sup></a>
1959
1960 Telephone interview with David Winer, 16 April 2003.
1961 </p></div><div id="ftn.idp7494944" class="footnote"><p><a href="#idp7494944" class="para"><sup class="para">[45] </sup></a>
1962
1963 John Schwartz, <span class="quote">«<span class="quote">Loss of the Shuttle: The Internet; A Wealth of
1964 Information Online,</span>»</span> <em class="citetitle">New York Times</em>, 2 February 2003, A28; Staci
1965 D. Kramer, <span class="quote">«<span class="quote">Shuttle Disaster Coverage Mixed, but Strong Overall,</span>»</span>
1966 Online Journalism Review, 2 February 2003, available at
1967 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #10</a>.
1968 </p></div><div id="ftn.idp7498464" class="footnote"><p><a href="#idp7498464" class="para"><sup class="para">[46] </sup></a>
1969
1970 <a class="indexterm" name="idp7500896"></a>
1971 <a class="indexterm" name="idp7501648"></a>
1972 <a class="indexterm" name="idp7502400"></a>
1973 <a class="indexterm" name="idp7503152"></a>
1974 See Michael Falcone, <span class="quote">«<span class="quote">Does an Editor's Pencil Ruin a Web Log?</span>»</span> <em class="citetitle">New
1975 York Times</em>, 29 September 2003, C4. (<span class="quote">«<span class="quote">Not all news organizations have
1976 been as accepting of employees who blog. Kevin Sites, a CNN
1977 correspondent in Iraq who started a blog about his reporting of the
1978 war on March 9, stopped posting 12 days later at his bosses'
1979 request. Last year Steve Olafson, a <em class="citetitle">Houston Chronicle</em> reporter, was
1980 fired for keeping a personal Web log, published under a pseudonym,
1981 that dealt with some of the issues and people he was covering.</span>»</span>)
1982 </p></div><div id="ftn.idp7534976" class="footnote"><p><a href="#idp7534976" class="para"><sup class="para">[47] </sup></a>
1983
1984 See, for example, Edward Felten and Andrew Appel, <span class="quote">«<span class="quote">Technological Access
1985 Control Interferes with Noninfringing Scholarship,</span>»</span> <em class="citetitle">Communications
1986 of the Association for Computer Machinery</em> 43 (2000): 9.
1987 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="catalogs"></a>Chapter 3. Chapter Three: Catalogs</h2></div></div></div><a class="indexterm" name="idp7544384"></a><a class="indexterm" name="idp7545136"></a><a class="indexterm" name="idxrensselaer"></a><a class="indexterm" name="idxrensselaerpolytechnicinstituterpicomputernetworksearchengineof"></a><a class="indexterm" name="idxsearchengines"></a><a class="indexterm" name="idxuniversitycomputernetworksppsharingon"></a><a class="indexterm" name="idxinternetsearchenginesusedon"></a><p>
1988 <span class="strong"><strong>In the fall</strong></span> of 2002, Jesse Jordan
1989 of Oceanside, New York, enrolled as a freshman at Rensselaer
1990 Polytechnic Institute, in Troy, New York.  His major at RPI was
1991 information technology. Though he is not a programmer, in October
1992 Jesse decided to begin to tinker with search engine technology that
1993 was available on the RPI network.
1994 </p><p>
1995 RPI is one of America's foremost technological research institutions.
1996 It offers degrees in fields ranging from architecture and engineering
1997 to information sciences. More than 65 percent of its five thousand
1998 undergraduates finished in the top 10 percent of their high school
1999 class. The school is thus a perfect mix of talent and experience to
2000 imagine and then build, a generation for the network age.
2001 </p><p>
2002 RPI's computer network links students, faculty, and administration to
2003 one another. It also links RPI to the Internet. Not everything
2004 available on the RPI network is available on the Internet. But the
2005 network is designed to enable students to get access to the Internet,
2006 as well as more intimate access to other members of the RPI community.
2007 </p><a class="indexterm" name="idxgoogle"></a><p>
2008 Search engines are a measure of a network's intimacy. Google
2009
2010 brought the Internet much closer to all of us by fantastically
2011 improving the quality of search on the network. Specialty search
2012 engines can do this even better. The idea of <span class="quote">«<span class="quote">intranet</span>»</span> search
2013 engines, search engines that search within the network of a particular
2014 institution, is to provide users of that institution with better
2015 access to material from that institution.  Businesses do this all the
2016 time, enabling employees to have access to material that people
2017 outside the business can't get. Universities do it as well.
2018 </p><a class="indexterm" name="idxjordanjesse"></a><a class="indexterm" name="idxmicrosoftnetworkfilesystemof"></a><p>
2019 These engines are enabled by the network technology itself.
2020 Microsoft, for example, has a network file system that makes it very
2021 easy for search engines tuned to that network to query the system for
2022 information about the publicly (within that network) available
2023 content.  Jesse's search engine was built to take advantage of this
2024 technology. It used Microsoft's network file system to build an index
2025 of all the files available within the RPI network.
2026 </p><a class="indexterm" name="idp7562304"></a><p>
2027 Jesse's wasn't the first search engine built for the RPI network.
2028 Indeed, his engine was a simple modification of engines that others
2029 had built. His single most important improvement over those engines
2030 was to fix a bug within the Microsoft file-sharing system that could
2031 cause a user's computer to crash. With the engines that existed
2032 before, if you tried to access a file through a Windows browser that
2033 was on a computer that was off-line, your computer could crash. Jesse
2034 modified the system a bit to fix that problem, by adding a button that
2035 a user could click to see if the machine holding the file was still
2036 on-line.
2037 </p><a class="indexterm" name="idp7564304"></a><p>
2038 Jesse's engine went on-line in late October. Over the following six
2039 months, he continued to tweak it to improve its functionality. By
2040 March, the system was functioning quite well. Jesse had more than one
2041 million files in his directory, including every type of content that might
2042 be on users' computers.
2043 </p><a class="indexterm" name="idp7565984"></a><p>
2044 Thus the index his search engine produced included pictures, which
2045 students could use to put on their own Web sites; copies of notes or
2046 research; copies of information pamphlets; movie clips that students
2047 might have created; university brochures&#8212;basically anything that
2048
2049 users of the RPI network made available in a public folder of their
2050 computer.
2051 </p><a class="indexterm" name="idp7568016"></a><a class="indexterm" name="idp7568768"></a><p>
2052 But the index also included music files. In fact, one quarter of the
2053 files that Jesse's search engine listed were music files. But that
2054 means, of course, that three quarters were not, and&#8212;so that this
2055 point is absolutely clear&#8212;Jesse did nothing to induce people to
2056 put music files in their public folders. He did nothing to target the
2057 search engine to these files. He was a kid tinkering with a
2058 Google-like technology at a university where he was studying
2059 information science, and hence, tinkering was the aim. Unlike Google,
2060 or Microsoft, for that matter, he made no money from this tinkering;
2061 he was not connected to any business that would make any money from
2062 this experiment. He was a kid tinkering with technology in an
2063 environment where tinkering with technology was precisely what he was
2064 supposed to do.
2065 </p><a class="indexterm" name="idxcopyrightinfringementlawsuitsinrecordingindustry"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitsagainststudentfilesharing"></a><a class="indexterm" name="idxrecordingindustrycopyrightinfringementlawsuitsof"></a><a class="indexterm" name="idxrecordingindustryassociationofamericariaacopyrightinfringementlawsuitsfiledby"></a><a class="indexterm" name="idp7577472"></a><p>
2066 On April 3, 2003, Jesse was contacted by the dean of students at
2067 RPI. The dean informed Jesse that the Recording Industry Association
2068 of America, the RIAA, would be filing a lawsuit against him and three
2069 other students whom he didn't even know, two of them at other
2070 universities.  A few hours later, Jesse was served with papers from
2071 the suit.  As he read these papers and watched the news reports about
2072 them, he was increasingly astonished.
2073 </p><p>
2074 <span class="quote">«<span class="quote">It was absurd,</span>»</span> he told me. <span class="quote">«<span class="quote">I don't think I did anything
2075 wrong. &#8230;  I don't think there's anything wrong with the search
2076 engine that I ran or &#8230; what I had done to it. I mean, I hadn't
2077 modified it in any way that promoted or enhanced the work of
2078 pirates. I just modified the search engine in a way that would make it
2079 easier to use</span>»</span>&#8212;again, a <span class="emphasis"><em>search engine</em></span>,
2080 which Jesse had not himself built, using the Windows filesharing
2081 system, which Jesse had not himself built, to enable members of the
2082 RPI community to get access to content, which Jesse had not himself
2083 created or posted, and the vast majority of which had nothing to do
2084 with music.
2085 </p><a class="indexterm" name="idp7581616"></a><a class="indexterm" name="idp7582592"></a><a class="indexterm" name="idp7583600"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitsindividualdefendantsintimidatedby"></a><a class="indexterm" name="idp7586256"></a><a class="indexterm" name="idxrecordingindustryassociationofamericariaaintimidationtacticsof"></a><p>
2086 But the RIAA branded Jesse a pirate. They claimed he operated a
2087 network and had therefore <span class="quote">«<span class="quote">willfully</span>»</span> violated copyright laws. They
2088
2089 demanded that he pay them the damages for his wrong. For cases of
2090 <span class="quote">«<span class="quote">willful infringement,</span>»</span> the Copyright Act specifies something lawyers
2091 call <span class="quote">«<span class="quote">statutory damages.</span>»</span> These damages permit a copyright owner to
2092 claim $150,000 per infringement. As the RIAA alleged more than one
2093 hundred specific copyright infringements, they therefore demanded that
2094 Jesse pay them at least $15,000,000.
2095 </p><a class="indexterm" name="idp7590800"></a><a class="indexterm" name="idp7591552"></a><p>
2096 Similar lawsuits were brought against three other students: one other
2097 student at RPI, one at Michigan Technical University, and one at
2098 Princeton. Their situations were similar to Jesse's. Though each case
2099 was different in detail, the bottom line in each was exactly the same:
2100 huge demands for <span class="quote">«<span class="quote">damages</span>»</span> that the RIAA claimed it was entitled to.
2101 If you added up the claims, these four lawsuits were asking courts in
2102 the United States to award the plaintiffs close to $100
2103 <span class="emphasis"><em>billion</em></span>&#8212;six times the
2104 <span class="emphasis"><em>total</em></span> profit of the film industry in
2105 2001.<a href="#ftn.idp7594208" class="footnote" name="idp7594208"><sup class="footnote">[48]</sup></a>
2106 </p><a class="indexterm" name="idp7595984"></a><p>
2107 Jesse called his parents. They were supportive but a bit frightened.
2108 An uncle was a lawyer. He began negotiations with the RIAA. They
2109 demanded to know how much money Jesse had. Jesse had saved
2110 $12,000 from summer jobs and other employment. They demanded
2111 $12,000 to dismiss the case.
2112 </p><a class="indexterm" name="idp7597648"></a><p>
2113 The RIAA wanted Jesse to admit to doing something wrong. He
2114 refused. They wanted him to agree to an injunction that would
2115 essentially make it impossible for him to work in many fields of
2116 technology for the rest of his life. He refused. They made him
2117 understand that this process of being sued was not going to be
2118 pleasant. (As Jesse's father recounted to me, the chief lawyer on the
2119 case, Matt Oppenheimer, told Jesse, <span class="quote">«<span class="quote">You don't want to pay another
2120 visit to a dentist like me.</span>»</span>) And throughout, the RIAA insisted it
2121 would not settle the case until it took every penny Jesse had saved.
2122 </p><a class="indexterm" name="idp7599808"></a><p>
2123 Jesse's family was outraged at these claims. They wanted to fight.
2124 But Jesse's uncle worked to educate the family about the nature of the
2125 American legal system. Jesse could fight the RIAA. He might even
2126 win. But the cost of fighting a lawsuit like this, Jesse was told, would be
2127 at least $250,000. If he won, he would not recover that money. If he
2128
2129 won, he would have a piece of paper saying he had won, and a piece of
2130 paper saying he and his family were bankrupt.
2131 </p><p>
2132 So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
2133 or $12,000 and a settlement.
2134 </p><a class="indexterm" name="idp7602192"></a><a class="indexterm" name="idp7603200"></a><a class="indexterm" name="idp7604208"></a><p>
2135 The recording industry insists this is a matter of law and morality.
2136 Let's put the law aside for a moment and think about the morality.
2137 Where is the morality in a lawsuit like this? What is the virtue in
2138 scapegoatism? The RIAA is an extraordinarily powerful lobby. The
2139 president of the RIAA is reported to make more than $1 million a year.
2140 Artists, on the other hand, are not well paid. The average recording
2141 artist makes $45,900.<a href="#ftn.idp7605984" class="footnote" name="idp7605984"><sup class="footnote">[49]</sup></a>
2142 There are plenty of ways for the RIAA to affect
2143 and direct policy. So where is the morality in taking money from a
2144 student for running a search engine?<a href="#ftn.idp7607472" class="footnote" name="idp7607472"><sup class="footnote">[50]</sup></a>
2145 </p><a class="indexterm" name="idp7609136"></a><a class="indexterm" name="idp7610352"></a><p>
2146 On June 23, Jesse wired his savings to the lawyer working for the
2147 RIAA. The case against him was then dismissed. And with this, this
2148 kid who had tinkered a computer into a $15 million lawsuit became an
2149 activist:
2150 </p><div class="blockquote"><blockquote class="blockquote"><p>
2151 I was definitely not an activist [before]. I never really meant to be
2152 an activist. &#8230; [But] I've been pushed into this. In no way did I
2153 ever foresee anything like this, but I think it's just completely
2154 absurd what the RIAA has done.
2155 </p></blockquote></div><p>
2156 Jesse's parents betray a certain pride in their reluctant activist. As
2157 his father told me, Jesse <span class="quote">«<span class="quote">considers himself very conservative, and so do
2158 I. &#8230; He's  not a tree hugger. &#8230; I  think it's bizarre that they would
2159 pick on him. But he wants to let people know that they're sending the
2160 wrong message. And he wants to correct the record.</span>»</span>
2161 </p><a class="indexterm" name="idp7614256"></a><a class="indexterm" name="idp7615232"></a><a class="indexterm" name="idp7616208"></a><a class="indexterm" name="idp7617184"></a><a class="indexterm" name="idp7618320"></a><a class="indexterm" name="idp7619296"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7594208" class="footnote"><p><a href="#idp7594208" class="para"><sup class="para">[48] </sup></a>
2162
2163
2164 Tim Goral, <span class="quote">«<span class="quote">Recording Industry Goes After Campus P-2-P Networks:
2165 Suit Alleges $97.8 Billion in Damages,</span>»</span> <em class="citetitle">Professional Media Group LCC</em> 6
2166 (2003): 5, available at 2003 WL 55179443.
2167 </p></div><div id="ftn.idp7605984" class="footnote"><p><a href="#idp7605984" class="para"><sup class="para">[49] </sup></a>
2168
2169 Occupational Employment Survey, U.S. Dept. of Labor (2001)
2170 (27&#8211;2042&#8212;Musicians and Singers). See also National Endowment for
2171 the Arts, <em class="citetitle">More Than One in a Blue Moon</em> (2000).
2172 </p></div><div id="ftn.idp7607472" class="footnote"><p><a href="#idp7607472" class="para"><sup class="para">[50] </sup></a>
2173
2174 Douglas Lichtman makes a related point in <span class="quote">«<span class="quote">KaZaA and Punishment,</span>»</span>
2175 <em class="citetitle">Wall Street Journal</em>, 10 September 2003, A24.
2176 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="pirates"></a>Chapter 4. Chapter Four: <span class="quote">«<span class="quote">Pirates</span>»</span></h2></div></div></div><a class="indexterm" name="idxpiracyindevelopmentofcontentindustry"></a><a class="indexterm" name="idp7623712"></a><p>
2177 <span class="strong"><strong>If <span class="quote">«<span class="quote">piracy</span>»</span> means</strong></span>
2178 using the creative property of others without their
2179 permission&#8212;if <span class="quote">«<span class="quote">if value, then right</span>»</span> is
2180 true&#8212;then the history of the content industry is a history of
2181 piracy. Every important sector of <span class="quote">«<span class="quote">big media</span>»</span>
2182 today&#8212;film, records, radio, and cable TV&#8212;was born of a
2183 kind of piracy so defined. The consistent story is how last
2184 generation's pirates join this generation's country club&#8212;until
2185 now.
2186 </p><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="film"></a>4.1. Film</h2></div></div></div><p>
2187 The film industry of Hollywood was built by fleeing pirates.<a href="#ftn.idp7628416" class="footnote" name="idp7628416"><sup class="footnote">[51]</sup></a>
2188 Creators and directors migrated from the East Coast to California in
2189 the early twentieth century in part to escape controls that patents
2190 granted the inventor of filmmaking, Thomas Edison. These controls were
2191 exercised through a monopoly <span class="quote">«<span class="quote">trust,</span>»</span> the Motion Pictures Patents
2192 Company, and were based on Thomas Edison's creative
2193 property&#8212;patents.  Edison formed the MPPC to exercise the rights
2194 this creative property
2195
2196 gave him, and the MPPC was serious about the control it demanded.
2197 </p><p>
2198 As one commentator tells one part of the story,
2199 </p><div class="blockquote"><blockquote class="blockquote"><p>
2200 A January 1909 deadline was set for all companies to comply with
2201 the license. By February, unlicensed outlaws, who referred to
2202 themselves as independents protested the trust and carried on
2203 business without submitting to the Edison monopoly. In the
2204 summer of 1909 the independent movement was in full-swing,
2205 with producers and theater owners using illegal equipment and
2206 imported film stock to create their own underground market.
2207 </p><a class="indexterm" name="idp7633712"></a><a class="indexterm" name="idp7634352"></a><a class="indexterm" name="idp7635104"></a><p>
2208 With the country experiencing a tremendous expansion in the number of
2209 nickelodeons, the Patents Company reacted to the independent movement
2210 by forming a strong-arm subsidiary known as the General Film Company
2211 to block the entry of non-licensed independents. With coercive tactics
2212 that have become legendary, General Film confiscated unlicensed
2213 equipment, discontinued product supply to theaters which showed
2214 unlicensed films, and effectively monopolized distribution with the
2215 acquisition of all U.S. film exchanges, except for the one owned by
2216 the independent William Fox who defied the Trust even after his
2217 license was revoked.<a href="#ftn.idp7636752" class="footnote" name="idp7636752"><sup class="footnote">[52]</sup></a>
2218 </p></blockquote></div><p>
2219 The Napsters of those days, the <span class="quote">«<span class="quote">independents,</span>»</span> were companies like
2220 Fox. And no less than today, these independents were vigorously
2221 resisted.  <span class="quote">«<span class="quote">Shooting was disrupted by machinery stolen, and
2222 `accidents' resulting in loss of negatives, equipment, buildings and
2223 sometimes life and limb frequently occurred.</span>»</span><a href="#ftn.idp7642208" class="footnote" name="idp7642208"><sup class="footnote">[53]</sup></a>
2224 That led the independents to flee the East
2225 Coast. California was remote enough from Edison's reach that
2226 filmmakers there could pirate his inventions without fear of the
2227 law. And the leaders of Hollywood filmmaking, Fox most prominently,
2228 did just that.
2229 </p><p>
2230 Of course, California grew quickly, and the effective enforcement
2231 of federal law eventually spread west. But because patents grant the
2232 patent holder a truly <span class="quote">«<span class="quote">limited</span>»</span> monopoly (just seventeen years at that
2233
2234
2235 time), by the time enough federal marshals appeared, the patents had
2236 expired. A new industry had been born, in part from the piracy of
2237 Edison's creative property.
2238 </p></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="recordedmusic"></a>4.2. Recorded Music</h2></div></div></div><a class="indexterm" name="idxcopyrightlawonmusicrecordings"></a><p>
2239 The record industry was born of another kind of piracy, though to see
2240 how requires a bit of detail about the way the law regulates music.
2241 </p><a class="indexterm" name="idxfourneauxhenri"></a><a class="indexterm" name="idp7650416"></a><p>
2242 At the time that Edison and Henri Fourneaux invented machines
2243 for reproducing music (Edison the phonograph, Fourneaux the player
2244 piano), the law gave composers the exclusive right to control copies of
2245 their music and the exclusive right to control public performances of
2246 their music. In other words, in 1900, if I wanted a copy of Phil Russel's
2247 1899 hit <span class="quote">«<span class="quote">Happy Mose,</span>»</span> the law said I would have to pay for the right
2248 to get a copy of the musical score, and I would also have to pay for the
2249 right to perform it publicly.
2250 </p><a class="indexterm" name="idp7652464"></a><p>
2251 But what if I wanted to record <span class="quote">«<span class="quote">Happy Mose,</span>»</span> using Edison's phonograph
2252 or Fourneaux's player piano?  Here the law stumbled. It was clear
2253 enough that I would have to buy any copy of the musical score that I
2254 performed in making this recording. And it was clear enough that I
2255 would have to pay for any public performance of the work I was
2256 recording.  But it wasn't totally clear that I would have to pay for a
2257 <span class="quote">«<span class="quote">public performance</span>»</span> if I recorded the song in my own house (even
2258 today, you don't owe the Beatles anything if you sing their songs in
2259 the shower), or if I recorded the song from memory (copies in your
2260 brain are not&#8212;yet&#8212; regulated by copyright law). So if I
2261 simply sang the song into a recording device in the privacy of my own
2262 home, it wasn't clear that I owed the composer anything. And more
2263 importantly, it wasn't clear whether I owed the composer anything if I
2264 then made copies of those recordings.  Because of this gap in the law,
2265 then, I could effectively pirate someone else's song without paying
2266 its composer anything.
2267 </p><a class="indexterm" name="idp7654624"></a><p>
2268 The composers (and publishers) were none too happy about
2269
2270 this capacity to pirate. As South Dakota senator Alfred Kittredge
2271 put it,
2272 <a class="indexterm" name="idp7657040"></a>
2273 </p><div class="blockquote"><blockquote class="blockquote"><p>
2274 Imagine the injustice of the thing. A composer writes a song or an
2275 opera. A publisher buys at great expense the rights to the same and
2276 copyrights it. Along come the phonographic companies and companies who
2277 cut music rolls and deliberately steal the work of the brain of the
2278 composer and publisher without any regard for [their]
2279 rights.<a href="#ftn.idp7658784" class="footnote" name="idp7658784"><sup class="footnote">[54]</sup></a>
2280 </p></blockquote></div><a class="indexterm" name="idp7661328"></a><p>
2281 The innovators who developed the technology to record other
2282 people's works were <span class="quote">«<span class="quote">sponging upon the toil, the work, the talent, and
2283 genius of American composers,</span>»</span><a href="#ftn.idp7662784" class="footnote" name="idp7662784"><sup class="footnote">[55]</sup></a>
2284 and the <span class="quote">«<span class="quote">music publishing industry</span>»</span>
2285 was thereby <span class="quote">«<span class="quote">at the complete mercy of this one pirate.</span>»</span><a href="#ftn.idp7664352" class="footnote" name="idp7664352"><sup class="footnote">[56]</sup></a>
2286 As John Philip
2287 Sousa put it, in as direct a way as possible, <span class="quote">«<span class="quote">When they make money
2288 out of my pieces, I want a share of it.</span>»</span><a href="#ftn.idp7665696" class="footnote" name="idp7665696"><sup class="footnote">[57]</sup></a>
2289 </p><a class="indexterm" name="idp7666720"></a><a class="indexterm" name="idp7667472"></a><a class="indexterm" name="idp7668224"></a><a class="indexterm" name="idxcongressusoncopyrightlaws"></a><a class="indexterm" name="idxcongressusonrecordingindustry"></a><a class="indexterm" name="idxcopyrightlawstatutorylicensesin"></a><a class="indexterm" name="idxrecordingindustrystatutorylicensesystemin"></a><p>
2290 These arguments have familiar echoes in the wars of our day. So, too,
2291 do the arguments on the other side. The innovators who developed the
2292 player piano argued that <span class="quote">«<span class="quote">it is perfectly demonstrable that the
2293 introduction of automatic music players has not deprived any composer
2294 of anything he had before their introduction.</span>»</span> Rather, the machines
2295 increased the sales of sheet music.<a href="#ftn.idp7676000" class="footnote" name="idp7676000"><sup class="footnote">[58]</sup></a> In any case, the innovators argued, the job of
2296 Congress was <span class="quote">«<span class="quote">to consider first the interest of [the public], whom
2297 they represent, and whose servants they are.</span>»</span> <span class="quote">«<span class="quote">All talk about
2298 `theft,'</span>»</span> the general counsel of the American Graphophone Company
2299 wrote, <span class="quote">«<span class="quote">is the merest claptrap, for there exists no property in ideas
2300 musical, literary or artistic, except as defined by
2301 statute.</span>»</span><a href="#ftn.idp7678384" class="footnote" name="idp7678384"><sup class="footnote">[59]</sup></a>
2302 </p><a class="indexterm" name="idp7679472"></a><p>
2303 The law soon resolved this battle in favor of the composer
2304 <span class="emphasis"><em>and</em></span> the recording artist. Congress amended the
2305 law to make sure that composers would be paid for the <span class="quote">«<span class="quote">mechanical
2306 reproductions</span>»</span> of their music. But rather than simply granting the
2307 composer complete control over the right to make mechanical
2308 reproductions, Congress gave recording artists a right to record the
2309 music, at a price set by Congress, once the composer allowed it to be
2310 recorded once. This is the part of
2311
2312
2313 copyright law that makes cover songs possible. Once a composer
2314 authorizes a recording of his song, others are free to record the same
2315 song, so long as they pay the original composer a fee set by the law.
2316 </p><a class="indexterm" name="idxcompulsorylicense"></a><a class="indexterm" name="idxstatutorylicenses"></a><p>
2317 American law ordinarily calls this a <span class="quote">«<span class="quote">compulsory license,</span>»</span> but I will
2318 refer to it as a <span class="quote">«<span class="quote">statutory license.</span>»</span> A statutory license is a license
2319 whose key terms are set by law. After Congress's amendment of the
2320 Copyright Act in 1909, record companies were free to distribute copies
2321 of recordings so long as they paid the composer (or copyright holder)
2322 the fee set by the statute.
2323 </p><a class="indexterm" name="idxgrishamjohn"></a><p>
2324 This is an exception within the law of copyright. When John Grisham
2325 writes a novel, a publisher is free to publish that novel only if
2326 Grisham gives the publisher permission. Grisham, in turn, is free to
2327 charge whatever he wants for that permission. The price to publish
2328 Grisham is thus set by Grisham, and copyright law ordinarily says you
2329 have no permission to use Grisham's work except with permission of
2330 Grisham.
2331 </p><a class="indexterm" name="idp7688304"></a><a class="indexterm" name="idp7689280"></a><p>
2332 But the law governing recordings gives recording artists less. And
2333 thus, in effect, the law <span class="emphasis"><em>subsidizes</em></span> the recording
2334 industry through a kind of piracy&#8212;by giving recording artists a
2335 weaker right than it otherwise gives creative authors. The Beatles
2336 have less control over their creative work than Grisham does. And the
2337 beneficiaries of this less control are the recording industry and the
2338 public. The recording industry gets something of value for less than
2339 it otherwise would pay; the public gets access to a much wider range
2340 of musical creativity. Indeed, Congress was quite explicit about its
2341 reasons for granting this right. Its fear was the monopoly power of
2342 rights holders, and that that power would stifle follow-on
2343 creativity.<a href="#ftn.idp7631584" class="footnote" name="idp7631584"><sup class="footnote">[60]</sup></a>
2344 </p><a class="indexterm" name="idp7693056"></a><a class="indexterm" name="idp7694032"></a><a class="indexterm" name="idp7695008"></a><p>
2345 While the recording industry has been quite coy about this recently,
2346 historically it has been quite a supporter of the statutory license for
2347 records. As a 1967 report from the House Committee on the Judiciary
2348 relates,
2349 </p><div class="blockquote"><blockquote class="blockquote"><p>
2350 the record producers argued vigorously that the compulsory
2351
2352 license system must be retained. They asserted that the record
2353 industry is a half-billion-dollar business of great economic
2354 importance in the United States and throughout the world; records
2355 today are the principal means of disseminating music, and this creates
2356 special problems, since performers need unhampered access to musical
2357 material on nondiscriminatory terms. Historically, the record
2358 producers pointed out, there were no recording rights before 1909 and
2359 the 1909 statute adopted the compulsory license as a deliberate
2360 anti-monopoly condition on the grant of these rights. They argue that
2361 the result has been an outpouring of recorded music, with the public
2362 being given lower prices, improved quality, and a greater
2363 choice.<a href="#ftn.idp7698208" class="footnote" name="idp7698208"><sup class="footnote">[61]</sup></a>
2364 </p></blockquote></div><a class="indexterm" name="idp7699472"></a><a class="indexterm" name="idp7700448"></a><a class="indexterm" name="idp7701424"></a><a class="indexterm" name="idp7702400"></a><p>
2365 By limiting the rights musicians have, by partially pirating their
2366 creative work, the record producers, and the public, benefit.
2367 </p></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="radio"></a>4.3. Radio</h2></div></div></div><a class="indexterm" name="idxrecordingindustryradiobroadcastand"></a><a class="indexterm" name="idxartistsrecordingindustrypaymentsto"></a><p>
2368 Radio was also born of piracy.
2369 </p><p>
2370 When a radio station plays a record on the air, that constitutes a
2371 <span class="quote">«<span class="quote">public performance</span>»</span> of the composer's work.<a href="#ftn.idp7708992" class="footnote" name="idp7708992"><sup class="footnote">[62]</sup></a>
2372 As I described above, the law gives the composer (or copyright holder)
2373 an exclusive right to public performances of his work. The radio
2374 station thus owes the composer money for that performance.
2375 </p><p>
2376 But when the radio station plays a record, it is not only performing a
2377 copy of the <span class="emphasis"><em>composer's</em></span> work. The radio station is
2378 also performing a copy of the <span class="emphasis"><em>recording artist's</em></span>
2379 work. It's one thing to have <span class="quote">«<span class="quote">Happy Birthday</span>»</span> sung on the radio by the
2380 local children's choir; it's quite another to have it sung by the
2381 Rolling Stones or Lyle Lovett. The recording artist is adding to the
2382 value of the composition performed on the radio station.  And if the
2383 law were perfectly consistent, the radio station would have to pay the
2384 recording artist for his work, just as it pays the composer of the
2385 music for his work.
2386 <a class="indexterm" name="idp7716416"></a>
2387
2388
2389 </p><p>
2390 But it doesn't. Under the law governing radio performances, the radio
2391 station does not have to pay the recording artist. The radio station
2392 need only pay the composer. The radio station thus gets a bit of
2393 something for nothing. It gets to perform the recording artist's work
2394 for free, even if it must pay the composer something for the privilege
2395 of playing the song.
2396 </p><a class="indexterm" name="idxmadonna"></a><p>
2397 This difference can be huge. Imagine you compose a piece of music.
2398 Imagine it is your first. You own the exclusive right to authorize
2399 public performances of that music. So if Madonna wants to sing your
2400 song in public, she has to get your permission.
2401 </p><p>
2402 Imagine she does sing your song, and imagine she likes it a lot. She
2403 then decides to make a recording of your song, and it becomes a top
2404 hit. Under our law, every time a radio station plays your song, you
2405 get some money. But Madonna gets nothing, save the indirect effect on
2406 the sale of her CDs. The public performance of her recording is not a
2407 <span class="quote">«<span class="quote">protected</span>»</span> right. The radio station thus gets to
2408 <span class="emphasis"><em>pirate</em></span> the value of Madonna's work without paying
2409 her anything.
2410 </p><a class="indexterm" name="idp7722176"></a><a class="indexterm" name="idp7723152"></a><p>
2411 No doubt, one might argue that, on balance, the recording artists
2412 benefit. On average, the promotion they get is worth more than the
2413 performance rights they give up. Maybe. But even if so, the law
2414 ordinarily gives the creator the right to make this choice. By making
2415 the choice for him or her, the law gives the radio station the right
2416 to take something for nothing.
2417 </p><a class="indexterm" name="idp7724896"></a></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="cabletv"></a>4.4. Cable TV</h2></div></div></div><a class="indexterm" name="idxcabletelevision"></a><p>
2418 Cable TV was also born of a kind of piracy.
2419 </p><p>
2420 When cable entrepreneurs first started wiring communities with cable
2421 television in 1948, most refused to pay broadcasters for the content
2422 that they echoed to their customers. Even when the cable companies
2423 started selling access to television broadcasts, they refused to pay
2424
2425 for what they sold. Cable companies were thus Napsterizing
2426 broadcasters' content, but more egregiously than anything Napster ever
2427 did&#8212; Napster never charged for the content it enabled others to
2428 give away.
2429 </p><a class="indexterm" name="idp7729296"></a><a class="indexterm" name="idp7730416"></a><a class="indexterm" name="idp7731168"></a><p>
2430 Broadcasters and copyright owners were quick to attack this theft.
2431 Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
2432 <span class="quote">«<span class="quote">unfair and potentially destructive competition.</span>»</span><a href="#ftn.idp7732576" class="footnote" name="idp7732576"><sup class="footnote">[63]</sup></a>
2433 There may have been a <span class="quote">«<span class="quote">public interest</span>»</span> in spreading the reach of cable
2434 TV, but as Douglas Anello, general counsel to the National Association
2435 of Broadcasters, asked Senator Quentin Burdick during testimony, <span class="quote">«<span class="quote">Does public
2436 interest dictate that you use somebody else's property?</span>»</span><a href="#ftn.idp7735296" class="footnote" name="idp7735296"><sup class="footnote">[64]</sup></a>
2437 As another broadcaster put it,
2438 </p><div class="blockquote"><blockquote class="blockquote"><p>
2439 The extraordinary thing about the CATV business is that it is the
2440 only business I know of where the product that is being sold is not
2441 paid for.<a href="#ftn.idp7737008" class="footnote" name="idp7737008"><sup class="footnote">[65]</sup></a>
2442 </p></blockquote></div><p>
2443 Again, the demand of the copyright holders seemed reasonable enough:
2444 </p><div class="blockquote"><blockquote class="blockquote"><p>
2445 All we are asking for is a very simple thing, that people who now
2446 take our property for nothing pay for it. We are trying to stop
2447 piracy and I don't think there is any lesser word to describe it. I
2448 think there are harsher words which would fit it.<a href="#ftn.idp7739440" class="footnote" name="idp7739440"><sup class="footnote">[66]</sup></a>
2449 </p></blockquote></div><a class="indexterm" name="idp7740656"></a><p>
2450 These were <span class="quote">«<span class="quote">free-ride[rs],</span>»</span> Screen Actor's Guild president Charlton
2451 Heston said, who were <span class="quote">«<span class="quote">depriving actors of
2452 compensation.</span>»</span><a href="#ftn.idp7742384" class="footnote" name="idp7742384"><sup class="footnote">[67]</sup></a>
2453 </p><p>
2454 But again, there was another side to the debate. As Assistant Attorney
2455 General Edwin Zimmerman put it,
2456 </p><div class="blockquote"><blockquote class="blockquote"><p>
2457 Our point here is that unlike the problem of whether you have any
2458 copyright protection at all, the problem here is whether copyright
2459 holders who are already compensated, who already have a monopoly,
2460 should be permitted to extend that monopoly. &#8230; The
2461
2462
2463 question here is how much compensation they should have and
2464 how far back they should carry their right to compensation.<a href="#ftn.idp7745440" class="footnote" name="idp7745440"><sup class="footnote">[68]</sup></a>
2465 <a class="indexterm" name="idp7747632"></a>
2466 </p></blockquote></div><p>
2467 Copyright owners took the cable companies to court. Twice the Supreme
2468 Court held that the cable companies owed the copyright owners nothing.
2469 </p><p>
2470 It took Congress almost thirty years before it resolved the question
2471 of whether cable companies had to pay for the content they <span class="quote">«<span class="quote">pirated.</span>»</span>
2472 In the end, Congress resolved this question in the same way that it
2473 resolved the question about record players and player pianos. Yes,
2474 cable companies would have to pay for the content that they broadcast;
2475 but the price they would have to pay was not set by the copyright
2476 owner.  The price was set by law, so that the broadcasters couldn't
2477 exercise veto power over the emerging technologies of cable. Cable
2478 companies thus built their empire in part upon a <span class="quote">«<span class="quote">piracy</span>»</span> of the value
2479 created by broadcasters' content.
2480 </p><a class="indexterm" name="idp7750960"></a><a class="indexterm" name="idp7751936"></a><p>
2481 <span class="strong"><strong>These separate stories</strong></span> sing a
2482 common theme. If <span class="quote">«<span class="quote">piracy</span>»</span> means using value from someone
2483 else's creative property without permission from that creator&#8212;as
2484 it is increasingly described today<a href="#ftn.idp7746624" class="footnote" name="idp7746624"><sup class="footnote">[69]</sup></a>
2485 &#8212; then <span class="emphasis"><em>every</em></span> industry affected by copyright
2486 today is the product and beneficiary of a certain kind of
2487 piracy. Film, records, radio, cable TV. &#8230; The list is long and
2488 could well be expanded. Every generation welcomes the pirates from the
2489 last. Every generation&#8212;until now.
2490 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7628416" class="footnote"><p><a href="#idp7628416" class="para"><sup class="para">[51] </sup></a>
2491
2492 <a class="indexterm" name="idp7629056"></a>
2493 I am grateful to Peter DiMauro for pointing me to this extraordinary
2494 history. See also Siva Vaidhyanathan, <em class="citetitle">Copyrights and Copywrongs</em>, 87&#8211;93,
2495 which details Edison's <span class="quote">«<span class="quote">adventures</span>»</span> with copyright and patent.
2496 </p></div><div id="ftn.idp7636752" class="footnote"><p><a href="#idp7636752" class="para"><sup class="para">[52] </sup></a>
2497
2498 J. A. Aberdeen, <em class="citetitle">Hollywood Renegades: The Society of Independent Motion
2499 Picture Producers</em> (Cobblestone Entertainment, 2000) and expanded texts
2500 posted at <span class="quote">«<span class="quote">The Edison Movie Monopoly: The Motion Picture Patents
2501 Company vs. the Independent Outlaws,</span>»</span> available at
2502 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #11</a>. For a
2503 discussion of the economic motive behind both these limits and the
2504 limits imposed by Victor on phonographs, see Randal C. Picker, <span class="quote">«<span class="quote">From
2505 Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and
2506 the Propertization of Copyright</span>»</span> (September 2002), University of
2507 Chicago Law School, James M. Olin Program in Law and Economics,
2508 Working Paper No. 159.
2509 <a class="indexterm" name="idp7639792"></a>
2510 </p></div><div id="ftn.idp7642208" class="footnote"><p><a href="#idp7642208" class="para"><sup class="para">[53] </sup></a>
2511
2512 Marc Wanamaker, <span class="quote">«<span class="quote">The First Studios,</span>»</span> <em class="citetitle">The Silents Majority</em>, archived at
2513 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #12</a>.
2514 </p></div><div id="ftn.idp7658784" class="footnote"><p><a href="#idp7658784" class="para"><sup class="para">[54] </sup></a>
2515
2516 To Amend and Consolidate the Acts Respecting Copyright: Hearings on
2517 S. 6330 and H.R. 19853 Before the (Joint) Committees on Patents, 59th
2518 Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge,
2519 of South Dakota, chairman), reprinted in <em class="citetitle">Legislative History of the
2520 Copyright Act</em>, E. Fulton Brylawski and Abe Goldman, eds. (South
2521 Hackensack, N.J.: Rothman Reprints, 1976).
2522 <a class="indexterm" name="idp7660192"></a>
2523 </p></div><div id="ftn.idp7662784" class="footnote"><p><a href="#idp7662784" class="para"><sup class="para">[55] </sup></a>
2524
2525 To Amend and Consolidate the Acts Respecting Copyright, 223
2526 (statement of Nathan Burkan, attorney for the Music Publishers Association).
2527 </p></div><div id="ftn.idp7664352" class="footnote"><p><a href="#idp7664352" class="para"><sup class="para">[56] </sup></a>
2528
2529 To Amend and Consolidate the Acts Respecting Copyright, 226
2530 (statement of Nathan Burkan, attorney for the Music Publishers Association).
2531 </p></div><div id="ftn.idp7665696" class="footnote"><p><a href="#idp7665696" class="para"><sup class="para">[57] </sup></a>
2532
2533 To Amend and Consolidate the Acts Respecting Copyright, 23
2534 (statement of John Philip Sousa, composer).
2535 </p></div><div id="ftn.idp7676000" class="footnote"><p><a href="#idp7676000" class="para"><sup class="para">[58] </sup></a>
2536
2537
2538 To Amend and Consolidate the Acts Respecting Copyright, 283&#8211;84
2539 (statement of Albert Walker, representative of the Auto-Music
2540 Perforating Company of New York).
2541 </p></div><div id="ftn.idp7678384" class="footnote"><p><a href="#idp7678384" class="para"><sup class="para">[59] </sup></a>
2542
2543 To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared
2544 memorandum of Philip Mauro, general patent counsel of the American
2545 Graphophone Company Association).
2546 </p></div><div id="ftn.idp7631584" class="footnote"><p><a href="#idp7631584" class="para"><sup class="para">[60] </sup></a>
2547
2548
2549 Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and
2550 H.R. 11794 Before the (Joint) Committee on Patents, 60th Cong., 1st
2551 sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted
2552 in <em class="citetitle">Legislative History of the 1909 Copyright Act</em>, E. Fulton Brylawski and
2553 Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976).
2554 </p></div><div id="ftn.idp7698208" class="footnote"><p><a href="#idp7698208" class="para"><sup class="para">[61] </sup></a>
2555
2556 Copyright Law Revision: Report to Accompany H.R. 2512, House Committee
2557 on the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8
2558 March 1967). I am grateful to Glenn Brown for drawing my attention to
2559 this report.</p></div><div id="ftn.idp7708992" class="footnote"><p><a href="#idp7708992" class="para"><sup class="para">[62] </sup></a>
2560
2561 See 17 <em class="citetitle">United States Code</em>, sections 106 and 110. At the beginning,
2562 record companies printed <span class="quote">«<span class="quote">Not Licensed for Radio Broadcast</span>»</span> and other
2563 messages purporting to restrict the ability to play a record on a
2564 radio station.  Judge Learned Hand rejected the argument that a
2565 warning attached to a record might restrict the rights of the radio
2566 station. See <em class="citetitle">RCA Manufacturing Co</em>. v. <em class="citetitle">Whiteman</em>, 114 F. 2d 86 (2nd
2567 Cir. 1940). See also Randal C.  Picker, <span class="quote">«<span class="quote">From Edison to the Broadcast
2568 Flag: Mechanisms of Consent and Refusal and the Propertization of
2569 Copyright,</span>»</span> <em class="citetitle">University of Chicago Law Review</em> 70 (2003): 281.
2570 <a class="indexterm" name="idp7712464"></a>
2571 <a class="indexterm" name="idp7713216"></a>
2572 </p></div><div id="ftn.idp7732576" class="footnote"><p><a href="#idp7732576" class="para"><sup class="para">[63] </sup></a>
2573
2574 Copyright Law Revision&#8212;CATV: Hearing on S. 1006 Before the
2575 Subcommittee on Patents, Trademarks, and Copyrights of the Senate
2576 Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966)
2577 (statement of Rosel H. Hyde, chairman of the Federal Communications
2578 Commission).
2579 <a class="indexterm" name="idp7729440"></a>
2580 </p></div><div id="ftn.idp7735296" class="footnote"><p><a href="#idp7735296" class="para"><sup class="para">[64] </sup></a>
2581
2582 Copyright Law Revision&#8212;CATV, 116 (statement of Douglas A. Anello,
2583 general counsel of the National Association of Broadcasters).
2584 </p></div><div id="ftn.idp7737008" class="footnote"><p><a href="#idp7737008" class="para"><sup class="para">[65] </sup></a>
2585
2586 Copyright Law Revision&#8212;CATV, 126 (statement of Ernest W. Jennes,
2587 general counsel of the Association of Maximum Service Telecasters, Inc.).
2588 </p></div><div id="ftn.idp7739440" class="footnote"><p><a href="#idp7739440" class="para"><sup class="para">[66] </sup></a>
2589
2590 Copyright Law Revision&#8212;CATV, 169 (joint statement of Arthur B.
2591 Krim, president of United Artists Corp., and John Sinn, president of
2592 United Artists Television, Inc.).
2593 </p></div><div id="ftn.idp7742384" class="footnote"><p><a href="#idp7742384" class="para"><sup class="para">[67] </sup></a>
2594
2595 Copyright Law Revision&#8212;CATV, 209 (statement of Charlton Heston,
2596 president of the Screen Actors Guild).
2597 <a class="indexterm" name="idp7743152"></a>
2598 </p></div><div id="ftn.idp7745440" class="footnote"><p><a href="#idp7745440" class="para"><sup class="para">[68] </sup></a>
2599
2600 Copyright Law Revision&#8212;CATV, 216 (statement of Edwin M.
2601 Zimmerman, acting assistant attorney general).
2602 <a class="indexterm" name="idp7746752"></a>
2603 </p></div><div id="ftn.idp7746624" class="footnote"><p><a href="#idp7746624" class="para"><sup class="para">[69] </sup></a>
2604
2605 See, for example, National Music Publisher's Association, <em class="citetitle">The Engine
2606 of Free Expression: Copyright on the Internet&#8212;The Myth of Free
2607 Information</em>, available at
2608 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #13</a>. <span class="quote">«<span class="quote">The
2609 threat of piracy&#8212;the use of someone else's creative work without
2610 permission or compensation&#8212;has grown with the Internet.</span>»</span>
2611 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="piracy"></a>Chapter 5. Chapter Five: <span class="quote">«<span class="quote">Piracy</span>»</span></h2></div></div></div><p>
2612 <span class="strong"><strong>There is piracy</strong></span> of copyrighted
2613 material. Lots of it. This piracy comes in many forms. The most
2614 significant is commercial piracy, the unauthorized taking of other
2615 people's content within a commercial context. Despite the many
2616 justifications that are offered in its defense, this taking is
2617 wrong. No one should condone it, and the law should stop it.
2618 </p><p>
2619 But as well as copy-shop piracy, there is another kind of <span class="quote">«<span class="quote">taking</span>»</span>
2620 that is more directly related to the Internet. That taking, too, seems
2621 wrong to many, and it is wrong much of the time. Before we paint this
2622 taking <span class="quote">«<span class="quote">piracy,</span>»</span> however, we should understand its nature a bit more.
2623 For the harm of this taking is significantly more ambiguous than
2624 outright copying, and the law should account for that ambiguity, as it
2625 has so often done in the past.
2626
2627 </p><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="piracy-i"></a>5.1. Piracy I</h2></div></div></div><a class="indexterm" name="idp7763616"></a><a class="indexterm" name="idxcdsforeign"></a><p>
2628 All across the world, but especially in Asia and Eastern Europe, there
2629 are businesses that do nothing but take others people's copyrighted
2630 content, copy it, and sell it&#8212;all without the permission of a copyright
2631 owner. The recording industry estimates that it loses about $4.6 billion
2632 every year to physical piracy<a href="#ftn.idp7745568" class="footnote" name="idp7745568"><sup class="footnote">[70]</sup></a>
2633 (that works out to one in three CDs sold worldwide). The MPAA
2634 estimates that it loses $3 billion annually worldwide to piracy.
2635 </p><p>
2636 This is piracy plain and simple. Nothing in the argument of this
2637 book, nor in the argument that most people make when talking about
2638 the subject of this book, should draw into doubt this simple point:
2639 This piracy is wrong.
2640 </p><p>
2641 Which is not to say that excuses and justifications couldn't be made
2642 for it. We could, for example, remind ourselves that for the first one
2643 hundred years of the American Republic, America did not honor foreign
2644 copyrights. We were born, in this sense, a pirate nation. It might
2645 therefore seem hypocritical for us to insist so strongly that other
2646 developing nations treat as wrong what we, for the first hundred years
2647 of our existence, treated as right.
2648 </p><p>
2649 That excuse isn't terribly strong. Technically, our law did not ban
2650 the taking of foreign works. It explicitly limited itself to American
2651 works. Thus the American publishers who published foreign works
2652 without the permission of foreign authors were not violating any rule.
2653 The copy shops in Asia, by contrast, are violating Asian law. Asian
2654 law does protect foreign copyrights, and the actions of the copy shops
2655 violate that law. So the wrong of piracy that they engage in is not
2656 just a moral wrong, but a legal wrong, and not just an internationally
2657 legal wrong, but a locally legal wrong as well.
2658 </p><p>
2659 True, these local rules have, in effect, been imposed upon these
2660 countries. No country can be part of the world economy and choose
2661
2662 not to protect copyright internationally. We may have been born a
2663 pirate nation, but we will not allow any other nation to have a
2664 similar childhood.
2665 </p><p>
2666 If a country is to be treated as a sovereign, however, then its laws are
2667 its laws regardless of their source. The international law under which
2668 these nations live gives them some opportunities to escape the burden
2669 of intellectual property law.<a href="#ftn.idp7773344" class="footnote" name="idp7773344"><sup class="footnote">[71]</sup></a> In my view, more developing nations should take
2670 advantage of that opportunity, but when they don't, then their laws
2671 should be respected. And under the laws of these nations, this piracy
2672 is wrong.
2673 </p><a class="indexterm" name="idp7777264"></a><p>
2674 Alternatively, we could try to excuse this piracy by noting that in
2675 any case, it does no harm to the industry. The Chinese who get access
2676 to American CDs at 50 cents a copy are not people who would have
2677 bought those American CDs at $15 a copy. So no one really has any
2678 less money than they otherwise would have had.<a href="#ftn.idp7778608" class="footnote" name="idp7778608"><sup class="footnote">[72]</sup></a>
2679 </p><p>
2680 This is often true (though I have friends who have purchased many
2681 thousands of pirated DVDs who certainly have enough money to pay
2682 for the content they have taken), and it does mitigate to some degree
2683 the harm caused by such taking. Extremists in this debate love to say,
2684 <span class="quote">«<span class="quote">You wouldn't go into Barnes &amp; Noble and take a book off of the shelf
2685 without paying; why should it be any different with on-line music?</span>»</span>
2686 The difference is, of course, that when you take a book from Barnes &amp;
2687 Noble, it has one less book to sell. By contrast, when you take an MP3
2688 from a computer network, there is not one less CD that can be sold.
2689 The physics of piracy of the intangible are different from the physics of
2690 piracy of the tangible.
2691 </p><a class="indexterm" name="idp7783600"></a><p>
2692 This argument is still very weak. However, although copyright is a
2693 property right of a very special sort, it <span class="emphasis"><em>is</em></span> a
2694 property right. Like all property rights, the copyright gives the
2695 owner the right to decide the terms under which content is shared. If
2696 the copyright owner doesn't want to sell, she doesn't have to. There
2697 are exceptions: important statutory licenses that apply to copyrighted
2698 content regardless of the wish of the copyright owner. Those licenses
2699 give people the right to <span class="quote">«<span class="quote">take</span>»</span> copyrighted content whether or not the
2700 copyright owner wants to sell. But
2701
2702
2703 where the law does not give people the right to take content, it is
2704 wrong to take that content even if the wrong does no harm. If we have
2705 a property system, and that system is properly balanced to the
2706 technology of a time, then it is wrong to take property without the
2707 permission of a property owner. That is exactly what <span class="quote">«<span class="quote">property</span>»</span> means.
2708 </p><a class="indexterm" name="idp7787312"></a><a class="indexterm" name="idp7788064"></a><a class="indexterm" name="idp7789072"></a><a class="indexterm" name="idp7789824"></a><a class="indexterm" name="idp7790576"></a><a class="indexterm" name="idp7791328"></a><a class="indexterm" name="idp7792336"></a><a class="indexterm" name="idp7793088"></a><a class="indexterm" name="idp7794096"></a><p>
2709 Finally, we could try to excuse this piracy with the argument that the
2710 piracy actually helps the copyright owner. When the Chinese <span class="quote">«<span class="quote">steal</span>»</span>
2711 Windows, that makes the Chinese dependent on Microsoft.  Microsoft
2712 loses the value of the software that was taken. But it gains users who
2713 are used to life in the Microsoft world. Over time, as the nation
2714 grows more wealthy, more and more people will buy software rather than
2715 steal it. And hence over time, because that buying will benefit
2716 Microsoft, Microsoft benefits from the piracy. If instead of pirating
2717 Microsoft Windows, the Chinese used the free GNU/Linux operating
2718 system, then these Chinese users would not eventually be buying
2719 Microsoft.  Without piracy, then, Microsoft would lose.
2720 </p><a class="indexterm" name="idp7796624"></a><p>
2721 This argument, too, is somewhat true. The addiction strategy is a good
2722 one. Many businesses practice it. Some thrive because of it. Law
2723 students, for example, are given free access to the two largest legal
2724 databases. The companies marketing both hope the students will become
2725 so used to their service that they will want to use it and not the
2726 other when they become lawyers (and must pay high subscription fees).
2727 </p><a class="indexterm" name="idp7798448"></a><a class="indexterm" name="idp7799200"></a><a class="indexterm" name="idp7799952"></a><a class="indexterm" name="idp7800704"></a><p>
2728 Still, the argument is not terribly persuasive. We don't give the
2729 alcoholic a defense when he steals his first beer, merely because that
2730 will make it more likely that he will buy the next three. Instead, we
2731 ordinarily allow businesses to decide for themselves when it is best
2732 to give their product away. If Microsoft fears the competition of
2733 GNU/Linux, then Microsoft can give its product away, as it did, for
2734 example, with Internet Explorer to fight Netscape. A property right
2735 means giving the property owner the right to say who gets access to
2736 what&#8212;at least ordinarily. And if the law properly balances the
2737 rights of the copyright owner with the rights of access, then
2738 violating the law is still wrong.
2739 </p><p>
2740
2741 Thus, while I understand the pull of these justifications for piracy,
2742 and I certainly see the motivation, in my view, in the end, these efforts
2743 at justifying commercial piracy simply don't cut it. This kind of piracy
2744 is rampant and just plain wrong. It doesn't transform the content it
2745 steals; it doesn't transform the market it competes in. It merely gives
2746 someone access to something that the law says he should not have.
2747 Nothing has changed to draw that law into doubt. This form of piracy
2748 is flat out wrong.
2749 </p><p>
2750 But as the examples from the four chapters that introduced this part
2751 suggest, even if some piracy is plainly wrong, not all <span class="quote">«<span class="quote">piracy</span>»</span> is. Or
2752 at least, not all <span class="quote">«<span class="quote">piracy</span>»</span> is wrong if that term is understood in the
2753 way it is increasingly used today. Many kinds of <span class="quote">«<span class="quote">piracy</span>»</span> are useful
2754 and productive, to produce either new content or new ways of doing
2755 business.  Neither our tradition nor any tradition has ever banned all
2756 <span class="quote">«<span class="quote">piracy</span>»</span> in that sense of the term.
2757 </p><p>
2758 This doesn't mean that there are no questions raised by the latest
2759 piracy concern, peer-to-peer file sharing. But it does mean that we
2760 need to understand the harm in peer-to-peer sharing a bit more before
2761 we condemn it to the gallows with the charge of piracy.
2762 </p><p>
2763 For (1) like the original Hollywood, p2p sharing escapes an overly
2764 controlling industry; and (2) like the original recording industry, it
2765 simply exploits a new way to distribute content; but (3) unlike cable
2766 TV, no one is selling the content that is shared on p2p services.
2767 </p><p>
2768 These differences distinguish p2p sharing from true piracy. They
2769 should push us to find a way to protect artists while enabling this
2770 sharing to survive.
2771 </p></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="piracy-ii"></a>5.2. Piracy II</h2></div></div></div><p>
2772 The key to the <span class="quote">«<span class="quote">piracy</span>»</span> that the law aims to quash is a use that <span class="quote">«<span class="quote">rob[s]
2773 the author of [his] profit.</span>»</span><a href="#ftn.idp7809920" class="footnote" name="idp7809920"><sup class="footnote">[73]</sup></a>
2774 This means we must determine whether
2775 and how much p2p sharing harms before we know how strongly the
2776
2777 law should seek to either prevent it or find an alternative to assure the
2778 author of his profit.
2779 </p><p>
2780 <a class="indexterm" name="idp7812320"></a>
2781 <a class="indexterm" name="idp7813072"></a>
2782 <a class="indexterm" name="idxnapster"></a>
2783 Peer-to-peer sharing was made famous by Napster. But the inventors of
2784 the Napster technology had not made any major technological
2785 innovations.  Like every great advance in innovation on the Internet
2786 (and, arguably, off the Internet as well<a href="#ftn.idp7815312" class="footnote" name="idp7815312"><sup class="footnote">[74]</sup></a>), Shawn Fanning and crew had simply
2787 put together components that had been developed independently.
2788 </p><p>
2789 <a class="indexterm" name="idp7819376"></a>
2790 <a class="indexterm" name="idp7820128"></a>
2791 <a class="indexterm" name="idp7821136"></a>
2792 The result was spontaneous combustion. Launched in July 1999,
2793 Napster amassed over 10 million users within nine months. After
2794 eighteen months, there were close to 80 million registered users of the
2795 system.<a href="#ftn.idp7822368" class="footnote" name="idp7822368"><sup class="footnote">[75]</sup></a>
2796 Courts quickly shut Napster down, but other services emerged
2797 to take its place. (Kazaa is currently the most popular p2p service. It
2798 boasts over 100 million members.) These services' systems are different
2799 architecturally, though not very different in function: Each enables
2800 users to make content available to any number of other users. With a
2801 p2p system, you can share your favorite songs with your best friend&#8212;
2802 or your 20,000 best friends.
2803 </p><a class="indexterm" name="idp7827440"></a><p>
2804 According to a number of estimates, a huge proportion of Americans
2805 have tasted file-sharing technology. A study by Ipsos-Insight in
2806 September 2002 estimated that 60 million Americans had downloaded
2807 music&#8212;28 percent of Americans older than 12.<a href="#ftn.idp7827808" class="footnote" name="idp7827808"><sup class="footnote">[76]</sup></a>
2808 A survey by the NPD group quoted in <em class="citetitle">The New York Times</em>
2809 estimated that 43 million citizens used file-sharing networks to
2810 exchange content in May 2003.<a href="#ftn.idp7831024" class="footnote" name="idp7831024"><sup class="footnote">[77]</sup></a>
2811 The vast majority of these are not kids. Whatever the actual figure, a
2812 massive quantity of content is being <span class="quote">«<span class="quote">taken</span>»</span> on these networks. The
2813 ease and inexpensiveness of file-sharing networks have inspired
2814 millions to enjoy music in a way that they hadn't before.
2815 </p><p>
2816 Some of this enjoying involves copyright infringement. Some of it does
2817 not. And even among the part that is technically copyright
2818 infringement, calculating the actual harm to copyright owners is more
2819 complicated than one might think. So consider&#8212;a bit more
2820 carefully than the polarized voices around this debate usually
2821 do&#8212;the kinds of sharing that file sharing enables, and the kinds
2822 of harm it entails.
2823 </p><p>
2824
2825 File sharers share different kinds of content. We can divide these
2826 different kinds into four types.
2827 </p><div class="orderedlist"><ol class="orderedlist" type="A"><li class="listitem"><a class="indexterm" name="idp7836160"></a><p>
2828
2829 There are some who use sharing networks as substitutes for purchasing
2830 content. Thus, when a new Madonna CD is released, rather than buying
2831 the CD, these users simply take it. We might quibble about whether
2832 everyone who takes it would actually have bought it if sharing didn't
2833 make it available for free. Most probably wouldn't have, but clearly
2834 there are some who would.  The latter are the target of category A:
2835 users who download instead of purchasing.
2836 </p></li><li class="listitem"><p>
2837
2838 There are some who use sharing networks to sample music before
2839 purchasing it. Thus, a friend sends another friend an MP3 of an artist
2840 he's not heard of. The other friend then buys CDs by that artist. This
2841 is a kind of targeted advertising, quite likely to succeed.  If the
2842 friend recommending the album gains nothing from a bad recommendation,
2843 then one could expect that the recommendations will actually be quite
2844 good. The net effect of this sharing could increase the quantity of
2845 music purchased.
2846 </p></li><li class="listitem"><p>
2847
2848 There are many who use sharing networks to get access to copyrighted
2849 content that is no longer sold or that they would not have purchased
2850 because the transaction costs off the Net are too high. This use of
2851 sharing networks is among the most rewarding for many. Songs that were
2852 part of your childhood but have long vanished from the marketplace
2853 magically appear again on the network. (One friend told me that when
2854 she discovered Napster, she spent a solid weekend <span class="quote">«<span class="quote">recalling</span>»</span> old
2855 songs. She was astonished at the range and mix of content that was
2856 available.)  For content not sold, this is still technically a
2857 violation of copyright, though because the copyright owner is not
2858 selling the content anymore, the economic harm is zero&#8212;the same
2859 harm that occurs when I sell my collection of 1960s 45-rpm records to
2860 a local collector.
2861 </p></li><li class="listitem"><p>
2862
2863
2864 Finally, there are many who use sharing networks to get access
2865 to content that is not copyrighted or that the copyright owner
2866 wants to give away.
2867 </p></li></ol></div><p>
2868 How do these different types of sharing balance out?
2869 </p><p>
2870 Let's start with some simple but important points. From the
2871 perspective of the law, only type D sharing is clearly legal. From the
2872 perspective of economics, only type A sharing is clearly
2873 harmful.<a href="#ftn.idp7843488" class="footnote" name="idp7843488"><sup class="footnote">[78]</sup></a>
2874 Type B sharing is illegal but plainly beneficial. Type C sharing is
2875 illegal, yet good for society (since more exposure to music is good)
2876 and harmless to the artist (since the work is not otherwise
2877 available). So how sharing matters on balance is a hard question to
2878 answer&#8212;and certainly much more difficult than the current
2879 rhetoric around the issue suggests.
2880 </p><p>
2881 Whether on balance sharing is harmful depends importantly on how
2882 harmful type A sharing is. Just as Edison complained about Hollywood,
2883 composers complained about piano rolls, recording artists complained
2884 about radio, and broadcasters complained about cable TV, the music
2885 industry complains that type A sharing is a kind of <span class="quote">«<span class="quote">theft</span>»</span> that is
2886 <span class="quote">«<span class="quote">devastating</span>»</span> the industry.
2887 </p><a class="indexterm" name="idxcassette"></a><p>
2888 While the numbers do suggest that sharing is harmful, how
2889 harmful is harder to reckon. It has long been the recording industry's
2890 practice to blame technology for any drop in sales. The history of
2891 cassette recording is a good example. As a study by Cap Gemini Ernst
2892 &amp; Young put it, <span class="quote">«<span class="quote">Rather than exploiting this new, popular
2893 technology, the labels fought it.</span>»</span><a href="#ftn.idp7849968" class="footnote" name="idp7849968"><sup class="footnote">[79]</sup></a>
2894 The labels claimed that every album taped was an album unsold, and
2895 when record sales fell by 11.4 percent in 1981, the industry claimed
2896 that its point was proved. Technology was the problem, and banning or
2897 regulating technology was the answer.
2898 </p><a class="indexterm" name="idp7853888"></a><p>
2899 Yet soon thereafter, and before Congress was given an opportunity
2900 to enact regulation, MTV was launched, and the industry had a record
2901 turnaround. <span class="quote">«<span class="quote">In the end,</span>»</span> Cap Gemini concludes, <span class="quote">«<span class="quote">the `crisis' &#8230; was
2902 not the fault of the tapers&#8212;who did not [stop after MTV came into
2903
2904 being]&#8212;but had to a large extent resulted from stagnation in musical
2905 innovation at the major labels.</span>»</span><a href="#ftn.idp7779984" class="footnote" name="idp7779984"><sup class="footnote">[80]</sup></a>
2906 </p><a class="indexterm" name="idp7857456"></a><p>
2907 But just because the industry was wrong before does not mean it is
2908 wrong today. To evaluate the real threat that p2p sharing presents to
2909 the industry in particular, and society in general&#8212;or at least
2910 the society that inherits the tradition that gave us the film
2911 industry, the record industry, the radio industry, cable TV, and the
2912 VCR&#8212;the question is not simply whether type A sharing is
2913 harmful. The question is also <span class="emphasis"><em>how</em></span> harmful type A
2914 sharing is, and how beneficial the other types of sharing are.
2915 </p><p>
2916 We start to answer this question by focusing on the net harm, from the
2917 standpoint of the industry as a whole, that sharing networks cause.
2918 The <span class="quote">«<span class="quote">net harm</span>»</span> to the industry as a whole is the amount by which type
2919 A sharing exceeds type B. If the record companies sold more records
2920 through sampling than they lost through substitution, then sharing
2921 networks would actually benefit music companies on balance. They would
2922 therefore have little <span class="emphasis"><em>static</em></span> reason to resist
2923 them.
2924
2925 </p><a class="indexterm" name="idxcdssales"></a><p>
2926 Could that be true? Could the industry as a whole be gaining because
2927 of file sharing? Odd as that might sound, the data about CD sales
2928 actually suggest it might be close.
2929 </p><p>
2930 In 2002, the RIAA reported that CD sales had fallen by 8.9 percent,
2931 from 882 million to 803 million units; revenues fell 6.7
2932 percent.<a href="#ftn.idp7863792" class="footnote" name="idp7863792"><sup class="footnote">[81]</sup></a>
2933 This confirms a trend over the past few years. The RIAA blames
2934 Internet piracy for the trend, though there are many other causes that
2935 could account for this drop. SoundScan, for example, reports a more
2936 than 20 percent drop in the number of CDs released since 1999. That no
2937 doubt accounts for some of the decrease in sales. Rising prices could
2938 account for at least some of the loss. <span class="quote">«<span class="quote">From 1999 to 2001, the average
2939 price of a CD rose 7.2 percent, from $13.04 to $14.19.</span>»</span><a href="#ftn.idp7868320" class="footnote" name="idp7868320"><sup class="footnote">[82]</sup></a>
2940 Competition from other forms of media could also account for some of
2941 the decline. As Jane Black of <em class="citetitle">BusinessWeek</em> notes, <span class="quote">«<span class="quote">The
2942 soundtrack to the film <em class="citetitle">High Fidelity</em> has a list price of
2943 $18.98. You could get the whole movie [on DVD] for
2944 $19.99.</span>»</span><a href="#ftn.idp7872336" class="footnote" name="idp7872336"><sup class="footnote">[83]</sup></a>
2945 </p><p>
2946
2947
2948 But let's assume the RIAA is right, and all of the decline in CD sales
2949 is because of Internet sharing. Here's the rub: In the same period
2950 that the RIAA estimates that 803 million CDs were sold, the RIAA
2951 estimates that 2.1 billion CDs were downloaded for free. Thus,
2952 although 2.6 times the total number of CDs sold were downloaded for
2953 free, sales revenue fell by just 6.7 percent.
2954 </p><p>
2955 There are too many different things happening at the same time to
2956 explain these numbers definitively, but one conclusion is unavoidable:
2957 The recording industry constantly asks, <span class="quote">«<span class="quote">What's the difference between
2958 downloading a song and stealing a CD?</span>»</span>&#8212;but their own numbers
2959 reveal the difference. If I steal a CD, then there is one less CD to
2960 sell. Every taking is a lost sale. But on the basis of the numbers the
2961 RIAA provides, it is absolutely clear that the same is not true of
2962 downloads. If every download were a lost sale&#8212;if every use of
2963 Kazaa <span class="quote">«<span class="quote">rob[bed] the author of [his] profit</span>»</span>&#8212;then the industry
2964 would have suffered a 100 percent drop in sales last year, not a 7
2965 percent drop. If 2.6 times the number of CDs sold were downloaded for
2966 free, and yet sales revenue dropped by just 6.7 percent, then there is
2967 a huge difference between <span class="quote">«<span class="quote">downloading a song and stealing a CD.</span>»</span>
2968 </p><a class="indexterm" name="idp7876752"></a><p>
2969 These are the harms&#8212;alleged and perhaps exaggerated but, let's
2970 assume, real. What of the benefits? File sharing may impose costs on
2971 the recording industry. What value does it produce in addition to
2972 these costs?
2973 </p><p>
2974 One benefit is type C sharing&#8212;making available content that
2975 is technically still under copyright but is no longer commercially
2976 available.  This is not a small category of content. There are
2977 millions of tracks that are no longer commercially
2978 available.<a href="#ftn.idp7877872" class="footnote" name="idp7877872"><sup class="footnote">[84]</sup></a>
2979 And while it's conceivable that some of this content is not available
2980 because the artist producing the content doesn't want it to be made
2981 available, the vast majority of it is unavailable solely because the
2982 publisher or the distributor has decided it no longer makes economic
2983 sense <span class="emphasis"><em>to the company</em></span> to make it available.
2984 </p><a class="indexterm" name="idp7881360"></a><p>
2985 In real space&#8212;long before the Internet&#8212;the market had a simple
2986
2987 response to this problem: used book and record stores. There are
2988 thousands of used book and used record stores in America
2989 today.<a href="#ftn.idp7883104" class="footnote" name="idp7883104"><sup class="footnote">[85]</sup></a>
2990 These stores buy content from owners, then sell the content they
2991 buy. And under American copyright law, when they buy and sell this
2992 content, <span class="emphasis"><em>even if the content is still under
2993 copyright</em></span>, the copyright owner doesn't get a dime. Used
2994 book and record stores are commercial entities; their owners make
2995 money from the content they sell; but as with cable companies before
2996 statutory licensing, they don't have to pay the copyright owner for
2997 the content they sell.
2998 </p><a class="indexterm" name="idp7888288"></a><a class="indexterm" name="idp7889296"></a><a class="indexterm" name="idxinternetbookson"></a><p>
2999 Type C sharing, then, is very much like used book stores or used
3000 record stores. It is different, of course, because the person making
3001 the content available isn't making money from making the content
3002 available.  It is also different, of course, because in real space,
3003 when I sell a record, I don't have it anymore, while in cyberspace,
3004 when someone shares my 1949 recording of Bernstein's <span class="quote">«<span class="quote">Two Love Songs,</span>»</span>
3005 I still have it. That difference would matter economically if the
3006 owner of the copyright were selling the record in competition to my
3007 sharing. But we're talking about the class of content that is not
3008 currently commercially available. The Internet is making it available,
3009 through cooperative sharing, without competing with the market.
3010 </p><p>
3011 It may well be, all things considered, that it would be better if the
3012 copyright owner got something from this trade. But just because it may
3013 well be better, it doesn't follow that it would be good to ban used book
3014 stores. Or put differently, if you think that type C sharing should be
3015 stopped, do you think that libraries and used book stores should be
3016 shut as well?
3017 </p><a class="indexterm" name="idxbooksfreeonline1"></a><a class="indexterm" name="idp7895312"></a><a class="indexterm" name="idp7896064"></a><p>
3018 Finally, and perhaps most importantly, file-sharing networks enable
3019 type D sharing to occur&#8212;the sharing of content that copyright owners
3020 want to have shared or for which there is no continuing copyright. This
3021 sharing clearly benefits authors and society. Science fiction author
3022 Cory Doctorow, for example, released his first novel, <em class="citetitle">Down and Out in
3023 the Magic Kingdom</em>, both free on-line and in bookstores on the same
3024
3025
3026 day. His (and his publisher's) thinking was that the on-line distribution
3027 would be a great advertisement for the <span class="quote">«<span class="quote">real</span>»</span> book. People would read
3028 part on-line, and then decide whether they liked the book or not. If
3029 they liked it, they would be more likely to buy it. Doctorow's content is
3030 type D content. If sharing networks enable his work to be spread, then
3031 both he and society are better off. (Actually, much better off: It is a
3032 great book!)
3033 </p><a class="indexterm" name="idp7899152"></a><p>
3034 Likewise for work in the public domain: This sharing benefits society
3035 with no legal harm to authors at all. If efforts to solve the problem
3036 of type A sharing destroy the opportunity for type D sharing, then we
3037 lose something important in order to protect type A content.
3038 </p><p>
3039 The point throughout is this: While the recording industry
3040 understandably says, <span class="quote">«<span class="quote">This is how much we've lost,</span>»</span> we must also ask,
3041 <span class="quote">«<span class="quote">How much has society gained from p2p sharing? What are the
3042 efficiencies?  What is the content that otherwise would be
3043 unavailable?</span>»</span>
3044 </p><a class="indexterm" name="idp7902080"></a><p>
3045 For unlike the piracy I described in the first section of this
3046 chapter, much of the <span class="quote">«<span class="quote">piracy</span>»</span> that file sharing enables is plainly
3047 legal and good.  And like the piracy I described in chapter
3048 <a class="xref" href="#pirates" title="Chapter 4. Chapter Four: «Pirates»">4</a>, much of
3049 this piracy is motivated by a new way of spreading content caused by
3050 changes in the technology of distribution. Thus, consistent with the
3051 tradition that gave us Hollywood, radio, the recording industry, and
3052 cable TV, the question we should be asking about file sharing is how
3053 best to preserve its benefits while minimizing (to the extent
3054 possible) the wrongful harm it causes artists. The question is one of
3055 balance. The law should seek that balance, and that balance will be
3056 found only with time.
3057 </p><p>
3058 <span class="quote">«<span class="quote">But isn't the war just a war against illegal sharing? Isn't the target
3059 just what you call type A sharing?</span>»</span>
3060 </p><p>
3061 You would think. And we should hope. But so far, it is not. The effect
3062 of the war purportedly on type A sharing alone has been felt far
3063 beyond that one class of sharing. That much is obvious from the
3064 Napster case itself. When Napster told the district court that it had
3065 developed a technology to block the transfer of 99.4 percent of
3066 identified
3067
3068
3069 infringing material, the district court told counsel for Napster 99.4
3070 percent was not good enough. Napster had to push the infringements
3071 <span class="quote">«<span class="quote">down to zero.</span>»</span><a href="#ftn.idp7907488" class="footnote" name="idp7907488"><sup class="footnote">[86]</sup></a>
3072 </p><p>
3073 If 99.4 percent is not good enough, then this is a war on file-sharing
3074 technologies, not a war on copyright infringement. There is no way to
3075 assure that a p2p system is used 100 percent of the time in compliance
3076 with the law, any more than there is a way to assure that 100 percent of
3077 VCRs or 100 percent of Xerox machines or 100 percent of handguns
3078 are used in compliance with the law. Zero tolerance means zero p2p.
3079 The court's ruling means that we as a society must lose the benefits of
3080 p2p, even for the totally legal and beneficial uses they serve, simply to
3081 assure that there are zero copyright infringements caused by p2p.
3082 </p><p>
3083 Zero tolerance has not been our history. It has not produced the
3084 content industry that we know today. The history of American law has
3085 been a process of balance. As new technologies changed the way content
3086 was distributed, the law adjusted, after some time, to the new
3087 technology.  In this adjustment, the law sought to ensure the
3088 legitimate rights of creators while protecting innovation. Sometimes
3089 this has meant more rights for creators. Sometimes less.
3090 </p><a class="indexterm" name="idp7911632"></a><a class="indexterm" name="idp7912640"></a><a class="indexterm" name="idxcongressusoncopyrightlaws2"></a><a class="indexterm" name="idxcongressusonrecordingindustry2"></a><a class="indexterm" name="idxcopyrightlawonmusicrecordings2"></a><a class="indexterm" name="idxcopyrightlawstatutorylicensesin2"></a><a class="indexterm" name="idp7919344"></a><a class="indexterm" name="idp7920352"></a><a class="indexterm" name="idp7921360"></a><a class="indexterm" name="idp7922368"></a><a class="indexterm" name="idp7923376"></a><a class="indexterm" name="idp7924128"></a><p>
3091 So, as we've seen, when <span class="quote">«<span class="quote">mechanical reproduction</span>»</span> threatened the
3092 interests of composers, Congress balanced the rights of composers
3093 against the interests of the recording industry. It granted rights to
3094 composers, but also to the recording artists: Composers were to be
3095 paid, but at a price set by Congress. But when radio started
3096 broadcasting the recordings made by these recording artists, and they
3097 complained to Congress that their <span class="quote">«<span class="quote">creative property</span>»</span> was not being
3098 respected (since the radio station did not have to pay them for the
3099 creativity it broadcast), Congress rejected their claim. An indirect
3100 benefit was enough.
3101 </p><a class="indexterm" name="idxcabletv2"></a><p>
3102 Cable TV followed the pattern of record albums. When the courts
3103 rejected the claim that cable broadcasters had to pay for the content
3104 they rebroadcast, Congress responded by giving broadcasters a right to
3105 compensation, but at a level set by the law. It likewise gave cable
3106 companies the right to the content, so long as they paid the statutory
3107 price.
3108 </p><a class="indexterm" name="idp7928608"></a><p>
3109
3110
3111 This compromise, like the compromise affecting records and player
3112 pianos, served two important goals&#8212;indeed, the two central goals
3113 of any copyright legislation. First, the law assured that new
3114 innovators would have the freedom to develop new ways to deliver
3115 content.  Second, the law assured that copyright holders would be paid
3116 for the content that was distributed. One fear was that if Congress
3117 simply required cable TV to pay copyright holders whatever they
3118 demanded for their content, then copyright holders associated with
3119 broadcasters would use their power to stifle this new technology,
3120 cable. But if Congress had permitted cable to use broadcasters'
3121 content for free, then it would have unfairly subsidized cable. Thus
3122 Congress chose a path that would assure
3123 <span class="emphasis"><em>compensation</em></span> without giving the past
3124 (broadcasters) control over the future (cable).
3125 </p><a class="indexterm" name="idp7931600"></a><a class="indexterm" name="idp7932464"></a><a class="indexterm" name="idp7933440"></a><a class="indexterm" name="idxbetamax"></a><a class="indexterm" name="idxcassettevcrs1"></a><p>
3126 In the same year that Congress struck this balance, two major
3127 producers and distributors of film content filed a lawsuit against
3128 another technology, the video tape recorder (VTR, or as we refer to
3129 them today, VCRs) that Sony had produced, the Betamax. Disney's and
3130 Universal's claim against Sony was relatively simple: Sony produced a
3131 device, Disney and Universal claimed, that enabled consumers to engage
3132 in copyright infringement. Because the device that Sony built had a
3133 <span class="quote">«<span class="quote">record</span>»</span> button, the device could be used to record copyrighted movies
3134 and shows. Sony was therefore benefiting from the copyright
3135 infringement of its customers. It should therefore, Disney and
3136 Universal claimed, be partially liable for that infringement.
3137 </p><a class="indexterm" name="idp7938672"></a><p>
3138 There was something to Disney's and Universal's claim. Sony did
3139 decide to design its machine to make it very simple to record television
3140 shows. It could have built the machine to block or inhibit any direct
3141 copying from a television broadcast. Or possibly, it could have built the
3142 machine to copy only if there were a special <span class="quote">«<span class="quote">copy me</span>»</span> signal on the
3143 line. It was clear that there were many television shows that did not
3144 grant anyone permission to copy. Indeed, if anyone had asked, no
3145 doubt the majority of shows would not have authorized copying. And
3146
3147 in the face of this obvious preference, Sony could have designed its
3148 system to minimize the opportunity for copyright infringement. It did
3149 not, and for that, Disney and Universal wanted to hold it responsible
3150 for the architecture it chose.
3151 </p><a class="indexterm" name="idxcongressusoncopyrightlaws3"></a><a class="indexterm" name="idp7942992"></a><p>
3152 MPAA president Jack Valenti became the studios' most vocal
3153 champion. Valenti called VCRs <span class="quote">«<span class="quote">tapeworms.</span>»</span> He warned, <span class="quote">«<span class="quote">When there are
3154 20, 30, 40 million of these VCRs in the land, we will be invaded by
3155 millions of `tapeworms,' eating away at the very heart and essence of
3156 the most precious asset the copyright owner has, his
3157 copyright.</span>»</span><a href="#ftn.idp7945248" class="footnote" name="idp7945248"><sup class="footnote">[87]</sup></a>
3158 <span class="quote">«<span class="quote">One does not have to be trained in sophisticated marketing and
3159 creative judgment,</span>»</span> he told Congress, <span class="quote">«<span class="quote">to understand the devastation
3160 on the after-theater marketplace caused by the hundreds of millions of
3161 tapings that will adversely impact on the future of the creative
3162 community in this country. It is simply a question of basic economics
3163 and plain common sense.</span>»</span><a href="#ftn.idp7947280" class="footnote" name="idp7947280"><sup class="footnote">[88]</sup></a>
3164 Indeed, as surveys would later show, 45
3165 percent of VCR owners had movie libraries of ten videos or more<a href="#ftn.idp7948256" class="footnote" name="idp7948256"><sup class="footnote">[89]</sup></a>
3166 &#8212; a use the Court would later hold was not <span class="quote">«<span class="quote">fair.</span>»</span> By
3167 <span class="quote">«<span class="quote">allowing VCR owners to copy freely by the means of an exemption from
3168 copyright infringement without creating a mechanism to compensate
3169 copyright owners,</span>»</span> Valenti testified, Congress would <span class="quote">«<span class="quote">take from the
3170 owners the very essence of their property: the exclusive right to
3171 control who may use their work, that is, who may copy it and thereby
3172 profit from its reproduction.</span>»</span><a href="#ftn.idp7951184" class="footnote" name="idp7951184"><sup class="footnote">[90]</sup></a>
3173 </p><a class="indexterm" name="idp7952176"></a><p>
3174 It took eight years for this case to be resolved by the Supreme
3175 Court. In the interim, the Ninth Circuit Court of Appeals, which
3176 includes Hollywood in its jurisdiction&#8212;leading Judge Alex
3177 Kozinski, who sits on that court, refers to it as the <span class="quote">«<span class="quote">Hollywood
3178 Circuit</span>»</span>&#8212;held that Sony would be liable for the copyright
3179 infringement made possible by its machines. Under the Ninth Circuit's
3180 rule, this totally familiar technology&#8212;which Jack Valenti had
3181 called <span class="quote">«<span class="quote">the Boston Strangler of the American film industry</span>»</span> (worse
3182 yet, it was a <span class="emphasis"><em>Japanese</em></span> Boston Strangler of the
3183 American film industry)&#8212;was an illegal
3184 technology.<a href="#ftn.idp7954288" class="footnote" name="idp7954288"><sup class="footnote">[91]</sup></a>
3185 <a class="indexterm" name="idp7956768"></a>
3186 </p><p>
3187 But the Supreme Court reversed the decision of the Ninth Circuit.
3188
3189
3190 And in its reversal, the Court clearly articulated its understanding of
3191 when and whether courts should intervene in such disputes. As the
3192 Court wrote,
3193 </p><div class="blockquote"><blockquote class="blockquote"><p>
3194 Sound policy, as well as history, supports our consistent deference
3195 to Congress when major technological innovations alter the
3196                 market
3197 for copyrighted materials. Congress has the constitutional
3198                 authority
3199 and the institutional ability to accommodate fully the
3200 varied permutations of competing interests that are inevitably
3201                 implicated
3202 by such new technology.<a href="#ftn.idp7959440" class="footnote" name="idp7959440"><sup class="footnote">[92]</sup></a>
3203 </p></blockquote></div><a class="indexterm" name="idp7961232"></a><p>
3204 Congress was asked to respond to the Supreme Court's decision.  But as
3205 with the plea of recording artists about radio broadcasts, Congress
3206 ignored the request. Congress was convinced that American film got
3207 enough, this <span class="quote">«<span class="quote">taking</span>»</span> notwithstanding.  If we put these cases
3208 together, a pattern is clear:
3209 </p><div class="informaltable"><a name="t1"></a><table border="1"><colgroup><col><col><col><col></colgroup><thead><tr><th align="left">CASE</th><th align="left">WHOSE VALUE WAS <span class="quote">«<span class="quote">PIRATED</span>»</span></th><th align="left">RESPONSE OF THE COURTS</th><th align="left">RESPONSE OF CONGRESS</th></tr></thead><tbody><tr><td align="left">Recordings</td><td align="left">Composers</td><td align="left">No protection</td><td align="left">Statutory license</td></tr><tr><td align="left">Radio</td><td align="left">Recording artists</td><td align="left">N/A</td><td align="left">Nothing</td></tr><tr><td align="left">Cable TV</td><td align="left">Broadcasters</td><td align="left">No protection</td><td align="left">Statutory license</td></tr><tr><td align="left">VCR</td><td align="left">Film creators</td><td align="left">No protection</td><td align="left">Nothing</td></tr></tbody></table></div><a class="indexterm" name="idp7975408"></a><p>
3210 In each case throughout our history, a new technology changed the
3211 way content was distributed.<a href="#ftn.idp7976752" class="footnote" name="idp7976752"><sup class="footnote">[93]</sup></a>
3212 In each case, throughout our history,
3213 that change meant that someone got a <span class="quote">«<span class="quote">free ride</span>»</span> on someone else's
3214 work.
3215 </p><p>
3216 In <span class="emphasis"><em>none</em></span> of these cases did either the courts or
3217 Congress eliminate all free riding. In <span class="emphasis"><em>none</em></span> of
3218 these cases did the courts or Congress insist that the law should
3219 assure that the copyright holder get all the value that his copyright
3220 created. In every case, the copyright owners complained of <span class="quote">«<span class="quote">piracy.</span>»</span>
3221 In every case, Congress acted to recognize some of the legitimacy in
3222 the behavior of the <span class="quote">«<span class="quote">pirates.</span>»</span> In each case, Congress allowed some new
3223 technology to benefit from content made before. It balanced the
3224 interests at stake.
3225
3226 </p><a class="indexterm" name="idp7984688"></a><p>
3227 When you think across these examples, and the other examples that
3228 make up the first four chapters of this section, this balance makes
3229 sense. Was Walt Disney a pirate? Would doujinshi be better if creators
3230 had to ask permission? Should tools that enable others to capture and
3231 spread images as a way to cultivate or criticize our culture be better
3232                 regulated?
3233 Is it really right that building a search engine should expose you
3234 to $15 million in damages? Would it have been better if Edison had
3235 controlled film? Should every cover band have to hire a lawyer to get
3236 permission to record a song?
3237 </p><a class="indexterm" name="idp7986432"></a><p>
3238 We could answer yes to each of these questions, but our tradition
3239 has answered no. In our tradition, as the Supreme Court has stated,
3240 copyright <span class="quote">«<span class="quote">has never accorded the copyright owner complete control
3241 over all possible uses of his work.</span>»</span><a href="#ftn.idp7988224" class="footnote" name="idp7988224"><sup class="footnote">[94]</sup></a>
3242 Instead, the particular uses that the law regulates have been defined
3243 by balancing the good that comes from granting an exclusive right
3244 against the burdens such an exclusive right creates. And this
3245 balancing has historically been done <span class="emphasis"><em>after</em></span> a
3246 technology has matured, or settled into the mix of technologies that
3247 facilitate the distribution of content.
3248 </p><p>
3249 We should be doing the same thing today. The technology of the
3250 Internet is changing quickly. The way people connect to the Internet
3251 (wires vs. wireless) is changing very quickly. No doubt the network
3252 should not become a tool for <span class="quote">«<span class="quote">stealing</span>»</span> from artists. But neither
3253 should the law become a tool to entrench one particular way in which
3254 artists (or more accurately, distributors) get paid. As I describe in
3255 some detail in the last chapter of this book, we should be securing
3256 income to artists while we allow the market to secure the most
3257 efficient way to promote and distribute content. This will require
3258 changes in the law, at least in the interim. These changes should be
3259 designed to balance the protection of the law against the strong
3260 public interest that innovation continue.
3261 </p><p>
3262
3263
3264 This is especially true when a new technology enables a vastly
3265 superior mode of distribution. And this p2p has done. P2p technologies
3266 can be ideally efficient in moving content across a widely diverse
3267 network.  Left to develop, they could make the network vastly more
3268 efficient.  Yet these <span class="quote">«<span class="quote">potential public benefits,</span>»</span> as John Schwartz
3269 writes in <em class="citetitle">The New York Times</em>, <span class="quote">«<span class="quote">could be delayed in the P2P
3270 fight.</span>»</span><a href="#ftn.idp7994064" class="footnote" name="idp7994064"><sup class="footnote">[95]</sup></a>
3271 </p><p>
3272 <span class="strong"><strong>Yet when anyone</strong></span> begins to talk
3273 about <span class="quote">«<span class="quote">balance,</span>»</span> the copyright warriors raise a different
3274 argument. <span class="quote">«<span class="quote">All this hand waving about balance and
3275 incentives,</span>»</span> they say, <span class="quote">«<span class="quote">misses a fundamental point. Our
3276 content,</span>»</span> the warriors insist, <span class="quote">«<span class="quote">is our
3277 <span class="emphasis"><em>property</em></span>. Why should we wait for Congress to
3278 `rebalance' our property rights? Do you have to wait before calling
3279 the police when your car has been stolen? And why should Congress
3280 deliberate at all about the merits of this theft? Do we ask whether
3281 the car thief had a good use for the car before we arrest him?</span>»</span>
3282 </p><p>
3283 <span class="quote">«<span class="quote">It is <span class="emphasis"><em>our property</em></span>,</span>»</span> the warriors
3284 insist. <span class="quote">«<span class="quote">And it should be protected just as any other property
3285 is protected.</span>»</span>
3286 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7745568" class="footnote"><p><a href="#idp7745568" class="para"><sup class="para">[70] </sup></a>
3287
3288 See IFPI (International Federation of the Phonographic Industry), <em class="citetitle">The
3289 Recording Industry Commercial Piracy Report 2003</em>, July 2003, available
3290 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #14</a>. See
3291 also Ben Hunt, <span class="quote">«<span class="quote">Companies Warned on Music Piracy Risk,</span>»</span> <em class="citetitle">Financial
3292 Times</em>, 14 February 2003, 11.
3293 </p></div><div id="ftn.idp7773344" class="footnote"><p><a href="#idp7773344" class="para"><sup class="para">[71] </sup></a>
3294
3295 See Peter Drahos with John Braithwaite, Information Feudalism:
3296 <em class="citetitle">Who Owns the Knowledge Economy?</em> (New York: The
3297 New Press, 2003), 10&#8211;13, 209.  The Trade-Related Aspects of
3298 Intellectual Property Rights (TRIPS) agreement obligates member
3299 nations to create administrative and enforcement mechanisms for
3300 intellectual property rights, a costly proposition for developing
3301 countries. Additionally, patent rights may lead to higher prices for
3302 staple industries such as agriculture. Critics of TRIPS question the
3303 disparity between burdens imposed upon developing countries and
3304 benefits conferred to industrialized nations. TRIPS does permit
3305 governments to use patents for public, noncommercial uses without
3306 first obtaining the patent holder's permission. Developing nations may
3307 be able to use this to gain the benefits of foreign patents at lower
3308 prices. This is a promising strategy for developing nations within the
3309 TRIPS framework.
3310 <a class="indexterm" name="idp7676720"></a>
3311 <a class="indexterm" name="idp7776048"></a>
3312 </p></div><div id="ftn.idp7778608" class="footnote"><p><a href="#idp7778608" class="para"><sup class="para">[72] </sup></a>
3313
3314 For an analysis of the economic impact of copying technology, see Stan
3315 Liebowitz, <em class="citetitle">Rethinking the Network Economy</em> (New York: Amacom, 2002),
3316 144&#8211;90. <span class="quote">«<span class="quote">In some instances &#8230; the impact of piracy on the
3317 copyright holder's ability to appropriate the value of the work will
3318 be negligible. One obvious instance is the case where the individual
3319 engaging in pirating would not have purchased an original even if
3320 pirating were not an option.</span>»</span> Ibid., 149.
3321 <a class="indexterm" name="idp7780416"></a>
3322 </p></div><div id="ftn.idp7809920" class="footnote"><p><a href="#idp7809920" class="para"><sup class="para">[73] </sup></a>
3323
3324 <em class="citetitle">Bach</em> v. <em class="citetitle">Longman</em>, 98 Eng. Rep. 1274 (1777).
3325 </p></div><div id="ftn.idp7815312" class="footnote"><p><a href="#idp7815312" class="para"><sup class="para">[74] </sup></a>
3326
3327 <a class="indexterm" name="idp7815952"></a>
3328 See Clayton M. Christensen, <em class="citetitle">The Innovator's Dilemma: The Revolutionary
3329 National Bestseller That Changed the Way We Do Business</em> (New York:
3330 HarperBusiness, 2000). Professor Christensen examines why companies
3331 that give rise to and dominate a product area are frequently unable to
3332 come up with the most creative, paradigm-shifting uses for their own
3333 products.  This job usually falls to outside innovators, who
3334 reassemble existing technology in inventive ways. For a discussion of
3335 Christensen's ideas, see Lawrence Lessig, <em class="citetitle">Future</em>, 89&#8211;92, 139.
3336
3337 <a class="indexterm" name="idp7779728"></a>
3338 </p></div><div id="ftn.idp7822368" class="footnote"><p><a href="#idp7822368" class="para"><sup class="para">[75] </sup></a>
3339
3340 See Carolyn Lochhead, <span class="quote">«<span class="quote">Silicon Valley Dream, Hollywood Nightmare,</span>»</span> <em class="citetitle">San
3341 Francisco Chronicle</em>, 24 September 2002, A1; <span class="quote">«<span class="quote">Rock 'n' Roll Suicide,</span>»</span>
3342 <em class="citetitle">New Scientist</em>, 6 July 2002, 42; Benny Evangelista, <span class="quote">«<span class="quote">Napster Names CEO,
3343 Secures New Financing,</span>»</span> <em class="citetitle">San Francisco Chronicle</em>, 23 May 2003, C1;
3344 <span class="quote">«<span class="quote">Napster's Wake-Up Call,</span>»</span> <em class="citetitle">Economist</em>, 24 June 2000, 23; John Naughton,
3345 <span class="quote">«<span class="quote">Hollywood at War with the Internet</span>»</span> (London) <em class="citetitle">Times</em>, 26 July 2002, 18.
3346 </p></div><div id="ftn.idp7827808" class="footnote"><p><a href="#idp7827808" class="para"><sup class="para">[76] </sup></a>
3347
3348
3349 See Ipsos-Insight, <em class="citetitle">TEMPO: Keeping Pace with Online Music Distribution</em>
3350 (September 2002), reporting that 28 percent of Americans aged twelve
3351 and older have downloaded music off of the Internet and 30 percent have
3352 listened to digital music files stored on their computers.
3353 </p></div><div id="ftn.idp7831024" class="footnote"><p><a href="#idp7831024" class="para"><sup class="para">[77] </sup></a>
3354
3355 Amy Harmon, <span class="quote">«<span class="quote">Industry Offers a Carrot in Online Music Fight,</span>»</span> <em class="citetitle">New
3356 York Times</em>, 6 June 2003, A1.
3357 </p></div><div id="ftn.idp7843488" class="footnote"><p><a href="#idp7843488" class="para"><sup class="para">[78] </sup></a>
3358
3359 See Liebowitz, <em class="citetitle">Rethinking the Network Economy</em>, 148&#8211;49.
3360 <a class="indexterm" name="idp7818000"></a>
3361 </p></div><div id="ftn.idp7849968" class="footnote"><p><a href="#idp7849968" class="para"><sup class="para">[79] </sup></a>
3362
3363 <a class="indexterm" name="idp7850608"></a>
3364 See Cap Gemini Ernst &amp; Young, <em class="citetitle">Technology Evolution and the
3365 Music Industry's Business Model Crisis</em> (2003), 3. This report
3366 describes the music industry's effort to stigmatize the budding
3367 practice of cassette taping in the 1970s, including an advertising
3368 campaign featuring a cassette-shape skull and the caption <span class="quote">«<span class="quote">Home taping
3369 is killing music.</span>»</span>  At the time digital audio tape became a threat,
3370 the Office of Technical Assessment conducted a survey of consumer
3371 behavior. In 1988, 40 percent of consumers older than ten had taped
3372 music to a cassette format. U.S.  Congress, Office of Technology
3373 Assessment, <em class="citetitle">Copyright and Home Copying: Technology Challenges the Law</em>,
3374 OTA-CIT-422 (Washington, D.C.: U.S.  Government Printing Office,
3375 October 1989), 145&#8211;56.  </p></div><div id="ftn.idp7779984" class="footnote"><p><a href="#idp7779984" class="para"><sup class="para">[80] </sup></a>
3376
3377 U.S. Congress, <em class="citetitle">Copyright and Home Copying</em>, 4.
3378 </p></div><div id="ftn.idp7863792" class="footnote"><p><a href="#idp7863792" class="para"><sup class="para">[81] </sup></a>
3379
3380 See Recording Industry Association of America, <em class="citetitle">2002 Yearend Statistics</em>,
3381 available at
3382 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #15</a>. A later
3383 report indicates even greater losses. See Recording Industry
3384 Association of America, <em class="citetitle">Some Facts About Music Piracy</em>, 25 June 2003,
3385 available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
3386 #16</a>: <span class="quote">«<span class="quote">In the past four years, unit shipments of recorded music
3387 have fallen by 26 percent from 1.16 billion units in to 860 million
3388 units in 2002 in the United States (based on units shipped).  In terms
3389 of sales, revenues are down 14 percent, from $14.6 billion in to $12.6
3390 billion last year (based on U.S. dollar value of shipments). The music
3391 industry worldwide has gone from a $39 billion industry in 2000 down
3392 to a $32 billion industry in 2002 (based on U.S. dollar value of
3393 shipments).</span>»</span>
3394 </p></div><div id="ftn.idp7868320" class="footnote"><p><a href="#idp7868320" class="para"><sup class="para">[82] </sup></a>
3395 Jane Black, <span class="quote">«<span class="quote">Big Music's Broken Record,</span>»</span> BusinessWeek online, 13
3396 February 2003, available at
3397 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #17</a>.
3398 <a class="indexterm" name="idp7870096"></a>
3399 </p></div><div id="ftn.idp7872336" class="footnote"><p><a href="#idp7872336" class="para"><sup class="para">[83] </sup></a>
3400
3401 Ibid.
3402 </p></div><div id="ftn.idp7877872" class="footnote"><p><a href="#idp7877872" class="para"><sup class="para">[84] </sup></a>
3403
3404 By one estimate, 75 percent of the music released by the major labels
3405 is no longer in print. See Online Entertainment and Copyright
3406 Law&#8212;Coming Soon to a Digital Device Near You: Hearing Before the
3407 Senate Committee on the Judiciary, 107th Cong., 1st sess. (3 April
3408 2001) (prepared statement of the Future of Music Coalition), available
3409 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #18</a>.
3410 </p></div><div id="ftn.idp7883104" class="footnote"><p><a href="#idp7883104" class="para"><sup class="para">[85] </sup></a>
3411
3412 <a class="indexterm" name="idp7883744"></a>
3413 While there are not good estimates of the number of used record stores
3414 in existence, in 2002, there were 7,198 used book dealers in the
3415 United States, an increase of 20 percent since 1993. See Book Hunter
3416 Press, <em class="citetitle">The Quiet Revolution: The Expansion of the Used Book
3417 Market</em> (2002), available at
3418 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #19</a>. Used
3419 records accounted for $260 million in sales in 2002. See National
3420 Association of Recording Merchandisers, <span class="quote">«<span class="quote">2002 Annual Survey
3421 Results,</span>»</span> available at
3422 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #20</a>.
3423 </p></div><div id="ftn.idp7907488" class="footnote"><p><a href="#idp7907488" class="para"><sup class="para">[86] </sup></a>
3424
3425 See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34-
3426 35 (N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183
3427 MHP, available at
3428
3429 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #21</a>. For an
3430 account of the litigation and its toll on Napster, see Joseph Menn,
3431 <em class="citetitle">All the Rave: The Rise and Fall of Shawn Fanning's Napster</em> (New
3432 York: Crown Business, 2003), 269&#8211;82.
3433 </p></div><div id="ftn.idp7945248" class="footnote"><p><a href="#idp7945248" class="para"><sup class="para">[87] </sup></a>
3434
3435 Copyright Infringements (Audio and Video Recorders): Hearing on
3436 S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st
3437 and 2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion
3438 Picture Association of America, Inc.).
3439 </p></div><div id="ftn.idp7947280" class="footnote"><p><a href="#idp7947280" class="para"><sup class="para">[88] </sup></a>
3440
3441 Copyright Infringements (Audio and Video Recorders), 475.
3442 </p></div><div id="ftn.idp7948256" class="footnote"><p><a href="#idp7948256" class="para"><sup class="para">[89] </sup></a>
3443
3444 <em class="citetitle">Universal City Studios, Inc</em>. v. <em class="citetitle">Sony Corp. of America</em>, 480 F. Supp. 429,
3445 (C.D. Cal., 1979).
3446 </p></div><div id="ftn.idp7951184" class="footnote"><p><a href="#idp7951184" class="para"><sup class="para">[90] </sup></a>
3447
3448 Copyright Infringements (Audio and Video Recorders), 485 (testimony
3449 of Jack Valenti).
3450 </p></div><div id="ftn.idp7954288" class="footnote"><p><a href="#idp7954288" class="para"><sup class="para">[91] </sup></a>
3451
3452 <em class="citetitle">Universal City Studios, Inc</em>. v. <em class="citetitle">Sony Corp. of America</em>, 659 F. 2d 963 (9th Cir.
3453 1981).
3454 </p></div><div id="ftn.idp7959440" class="footnote"><p><a href="#idp7959440" class="para"><sup class="para">[92] </sup></a>
3455
3456 <em class="citetitle">Sony Corp. of America</em> v. <em class="citetitle">Universal City Studios, Inc</em>., 464 U.S. 417, 431 (1984).
3457 </p></div><div id="ftn.idp7976752" class="footnote"><p><a href="#idp7976752" class="para"><sup class="para">[93] </sup></a>
3458
3459 These are the most important instances in our history, but there are other
3460 cases as well. The technology of digital audio tape (DAT), for example,
3461 was regulated by Congress to minimize the risk of piracy. The remedy
3462 Congress imposed did burden DAT producers, by taxing tape sales and
3463 controlling the technology of DAT. See Audio Home Recording Act of
3464 1992 (Title 17 of the <em class="citetitle">United States Code</em>), Pub. L. No. 102-563, 106 Stat.
3465 4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not
3466 eliminate the opportunity for free riding in the sense I've described. See
3467 Lessig, <em class="citetitle">Future</em>, 71. See also Picker, <span class="quote">«<span class="quote">From Edison to the Broadcast Flag,</span>»</span>
3468 <em class="citetitle">University of Chicago Law Review</em> 70 (2003): 293&#8211;96.
3469 <a class="indexterm" name="idp7909488"></a>
3470 <a class="indexterm" name="idp7980464"></a>
3471 </p></div><div id="ftn.idp7988224" class="footnote"><p><a href="#idp7988224" class="para"><sup class="para">[94] </sup></a>
3472
3473 <em class="citetitle">Sony Corp. of America</em> v. <em class="citetitle">Universal City Studios, Inc</em>., 464 U.S. 417,
3474 (1984).
3475 </p></div><div id="ftn.idp7994064" class="footnote"><p><a href="#idp7994064" class="para"><sup class="para">[95] </sup></a>
3476
3477 John Schwartz, <span class="quote">«<span class="quote">New Economy: The Attack on Peer-to-Peer Software
3478 Echoes Past Efforts,</span>»</span> <em class="citetitle">New York Times</em>, 22 September 2003, C3.
3479 </p></div></div></div></div><div class="part"><div class="titlepage"><div><div><h1 class="title"><a name="c-property"></a>Part II. <span class="quote">«<span class="quote">Property</span>»</span></h1></div></div></div><div class="partintro"><div></div><p>
3480
3481
3482 <span class="strong"><strong>The copyright warriors</strong></span> are right: A
3483 copyright is a kind of property. It can be owned and sold, and the law
3484 protects against its theft. Ordinarily, the copyright owner gets to
3485 hold out for any price he wants. Markets reckon the supply and demand
3486 that partially determine the price she can get.
3487 </p><p>
3488 But in ordinary language, to call a copyright a <span class="quote">«<span class="quote">property</span>»</span> right is a
3489 bit misleading, for the property of copyright is an odd kind of
3490 property.  Indeed, the very idea of property in any idea or any
3491 expression is very odd. I understand what I am taking when I take the
3492 picnic table you put in your backyard. I am taking a thing, the picnic
3493 table, and after I take it, you don't have it. But what am I taking
3494 when I take the good <span class="emphasis"><em>idea</em></span> you had to put a picnic
3495 table in the backyard&#8212;by, for example, going to Sears, buying a
3496 table, and putting it in my backyard? What is the thing I am taking
3497 then?
3498 </p><a class="indexterm" name="idp8005840"></a><p>
3499 The point is not just about the thingness of picnic tables versus
3500 ideas, though that's an important difference. The point instead is that
3501
3502 in the ordinary case&#8212;indeed, in practically every case except for a
3503         narrow
3504 range of exceptions&#8212;ideas released to the world are free. I don't
3505 take anything from you when I copy the way you dress&#8212;though I
3506 might seem weird if I did it every day, and especially weird if you are a
3507 woman. Instead, as Thomas Jefferson said (and as is especially true
3508 when I copy the way someone else dresses), <span class="quote">«<span class="quote">He who receives an idea
3509 from me, receives instruction himself without lessening mine; as he who
3510 lights his taper at mine, receives light without darkening me.</span>»</span><a href="#ftn.idp8008112" class="footnote" name="idp8008112"><sup class="footnote">[96]</sup></a>
3511 </p><a class="indexterm" name="idp8009568"></a><p>
3512 The exceptions to free use are ideas and expressions within the
3513 reach of the law of patent and copyright, and a few other domains that
3514 I won't discuss here. Here the law says you can't take my idea or
3515                 expression
3516 without my permission: The law turns the intangible into
3517 property.
3518 </p><p>
3519 But how, and to what extent, and in what form&#8212;the details,
3520 in other words&#8212;matter. To get a good sense of how this practice
3521 of turning the intangible into property emerged, we need to place this
3522 <span class="quote">«<span class="quote">property</span>»</span> in its proper context.<a href="#ftn.idp8012112" class="footnote" name="idp8012112"><sup class="footnote">[97]</sup></a>
3523 </p><p>
3524 My strategy in doing this will be the same as my strategy in the
3525 preceding part. I offer four stories to help put the idea of
3526 <span class="quote">«<span class="quote">copyright material is property</span>»</span> in context. Where did the idea come
3527 from? What are its limits? How does it function in practice? After
3528 these stories, the significance of this true
3529 statement&#8212;<span class="quote">«<span class="quote">copyright material is property</span>»</span>&#8212; will be a bit
3530 more clear, and its implications will be revealed as quite different
3531 from the implications that the copyright warriors would have us draw.
3532 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8008112" class="footnote"><p><a href="#idp8008112" class="para"><sup class="para">[96] </sup></a>
3533
3534 Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in
3535 <em class="citetitle">The Writings of Thomas Jefferson</em>, vol. 6 (Andrew A. Lipscomb and Albert
3536 Ellery Bergh, eds., 1903), 330, 333&#8211;34.
3537 </p></div><div id="ftn.idp8012112" class="footnote"><p><a href="#idp8012112" class="para"><sup class="para">[97] </sup></a>
3538
3539 As the legal realists taught American law, all property rights are
3540 intangible.  A property right is simply a right that an individual has
3541 against the world to do or not do certain things that may or may not
3542 attach to a physical object. The right itself is intangible, even if
3543 the object to which it is (metaphorically) attached is tangible. See
3544 Adam Mossoff, <span class="quote">«<span class="quote">What Is Property?  Putting the Pieces Back Together,</span>»</span>
3545 <em class="citetitle">Arizona Law Review</em> 45 (2003): 373, 429 n. 241.
3546 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="founders"></a>Chapter 6. Chapter Six: Founders</h2></div></div></div><a class="indexterm" name="idxbooksenglishcopyrightlawdevelopedfor"></a><a class="indexterm" name="idxcopyrightlawdevelopmentof"></a><a class="indexterm" name="idxcopyrightlawenglish"></a><a class="indexterm" name="idxenglandcopyrightlawsdevelopedin"></a><a class="indexterm" name="idxunitedkingdomhistoryofcopyrightlawin"></a><a class="indexterm" name="idp8024496"></a><a class="indexterm" name="idp8025248"></a><a class="indexterm" name="idp8026000"></a><a class="indexterm" name="idxromeoandjulietshakespeare"></a><p>
3547 <span class="strong"><strong>William Shakespeare</strong></span> wrote
3548 <em class="citetitle">Romeo and Juliet</em> in 1595. The play was first
3549 published in 1597. It was the eleventh major play that Shakespeare had
3550 written. He would continue to write plays through 1613, and the plays
3551 that he wrote have continued to define Anglo-American culture ever
3552 since. So deeply have the works of a sixteenth-century writer seeped
3553 into our culture that we often don't even recognize their source.  I
3554 once overheard someone commenting on Kenneth Branagh's adaptation of
3555 Henry V: <span class="quote">«<span class="quote">I liked it, but Shakespeare is so full of
3556 clichés.</span>»</span>
3557 </p><a class="indexterm" name="idp8030336"></a><a class="indexterm" name="idxtonsonjacob"></a><p>
3558 In 1774, almost 180 years after <em class="citetitle">Romeo and Juliet</em> was written, the
3559 <span class="quote">«<span class="quote">copy-right</span>»</span> for the work was still thought by many to be the exclusive
3560 right of a single London publisher, Jacob Tonson.<a href="#ftn.idp8033472" class="footnote" name="idp8033472"><sup class="footnote">[98]</sup></a>
3561 Tonson was the most prominent of a small group of publishers called
3562 the Conger<a href="#ftn.idp8037776" class="footnote" name="idp8037776"><sup class="footnote">[99]</sup></a>
3563 who controlled bookselling in England during the eighteenth
3564 century. The Conger claimed a perpetual right to control the <span class="quote">«<span class="quote">copy</span>»</span> of
3565 books that they had acquired from authors. That perpetual right meant
3566 that no
3567
3568 one else could publish copies of a book to which they held the
3569 copyright.  Prices of the classics were thus kept high; competition to
3570 produce better or cheaper editions was eliminated.
3571 </p><a class="indexterm" name="idp8040224"></a><a class="indexterm" name="idxcopyrightdurationof2"></a><a class="indexterm" name="idp8042464"></a><a class="indexterm" name="idp8043472"></a><p>
3572 Now, there's something puzzling about the year 1774 to anyone who
3573 knows a little about copyright law. The better-known year in the
3574 history of copyright is 1710, the year that the British Parliament
3575 adopted the first <span class="quote">«<span class="quote">copyright</span>»</span> act. Known as the Statute of Anne, the
3576 act stated that all published works would get a copyright term of
3577 fourteen years, renewable once if the author was alive, and that all
3578 works already published by 1710 would get a single term of twenty-one
3579 additional years.<a href="#ftn.idp8045376" class="footnote" name="idp8045376"><sup class="footnote">[100]</sup></a> Under this law, <em class="citetitle">Romeo and Juliet</em> should have been
3580 free in 1731. So why was there any issue about it still being under
3581 Tonson's control in 1774?
3582 </p><a class="indexterm" name="idp8048384"></a><a class="indexterm" name="idp8049360"></a><a class="indexterm" name="idxlawcommonvspositive"></a><a class="indexterm" name="idp8051824"></a><a class="indexterm" name="idp8052576"></a><p>
3583 The reason is that the English hadn't yet agreed on what a <span class="quote">«<span class="quote">copyright</span>»</span>
3584 was&#8212;indeed, no one had. At the time the English passed the
3585 Statute of Anne, there was no other legislation governing copyrights.
3586 The last law regulating publishers, the Licensing Act of 1662, had
3587 expired in 1695. That law gave publishers a monopoly over publishing,
3588 as a way to make it easier for the Crown to control what was
3589 published.  But after it expired, there was no positive law that said
3590 that the publishers, or <span class="quote">«<span class="quote">Stationers,</span>»</span> had an exclusive right to print
3591 books.
3592 </p><a class="indexterm" name="idp8055008"></a><a class="indexterm" name="idp8055984"></a><p>
3593 There was no <span class="emphasis"><em>positive</em></span> law, but that didn't mean
3594 that there was no law. The Anglo-American legal tradition looks to
3595 both the words of legislatures and the words of judges to know the
3596 rules that are to govern how people are to behave. We call the words
3597 from legislatures <span class="quote">«<span class="quote">positive law.</span>»</span> We call the words from judges
3598 <span class="quote">«<span class="quote">common law.</span>»</span> The common law sets the background against which
3599 legislatures legislate; the legislature, ordinarily, can trump that
3600 background only if it passes a law to displace it. And so the real
3601 question after the licensing statutes had expired was whether the
3602 common law protected a copyright, independent of any positive law.
3603 </p><a class="indexterm" name="idp8058880"></a><a class="indexterm" name="idp8059856"></a><a class="indexterm" name="idxbritishparliament"></a><a class="indexterm" name="idp8061840"></a><a class="indexterm" name="idxstatuteofanne"></a><p>
3604 This question was important to the publishers, or <span class="quote">«<span class="quote">booksellers,</span>»</span> as
3605 they were called, because there was growing competition from foreign
3606 publishers. The Scottish, in particular, were increasingly publishing
3607 and exporting books to England. That competition reduced the profits
3608
3609
3610 of the Conger, which reacted by demanding that Parliament pass a law
3611 to again give them exclusive control over publishing. That demand
3612                 ultimately
3613 resulted in the Statute of Anne.
3614 </p><a class="indexterm" name="idxcopyrightasnarrowmonopolyright"></a><p>
3615 The Statute of Anne granted the author or <span class="quote">«<span class="quote">proprietor</span>»</span> of a book an
3616 exclusive right to print that book. In an important limitation,
3617 however, and to the horror of the booksellers, the law gave the
3618 bookseller that right for a limited term. At the end of that term, the
3619 copyright <span class="quote">«<span class="quote">expired,</span>»</span> and the work would then be free and could be
3620 published by anyone. Or so the legislature is thought to have
3621 believed.
3622 </p><a class="indexterm" name="idp8068272"></a><p>
3623 Now, the thing to puzzle about for a moment is this: Why would
3624 Parliament limit the exclusive right? Not why would they limit it to
3625 the particular limit they set, but why would they limit the right
3626 <span class="emphasis"><em>at all?</em></span>
3627 </p><a class="indexterm" name="idp8070224"></a><a class="indexterm" name="idp8071200"></a><a class="indexterm" name="idp8071952"></a><p>
3628 For the booksellers, and the authors whom they represented, had a very
3629 strong claim. Take <em class="citetitle">Romeo and Juliet</em> as an example: That play
3630 was written by Shakespeare. It was his genius that brought it into the
3631 world. He didn't take anybody's property when he created this play
3632 (that's a controversial claim, but never mind), and by his creating
3633 this play, he didn't make it any harder for others to craft a play. So
3634 why is it that the law would ever allow someone else to come along and
3635 take Shakespeare's play without his, or his estate's, permission? What
3636 reason is there to allow someone else to <span class="quote">«<span class="quote">steal</span>»</span> Shakespeare's work?
3637 </p><a class="indexterm" name="idp8074960"></a><p>
3638 The answer comes in two parts. We first need to see something special
3639 about the notion of <span class="quote">«<span class="quote">copyright</span>»</span> that existed at the time of the
3640 Statute of Anne. Second, we have to see something important about
3641 <span class="quote">«<span class="quote">booksellers.</span>»</span>
3642 </p><a class="indexterm" name="idp8077088"></a><p>
3643 First, about copyright. In the last three hundred years, we have come
3644 to apply the concept of <span class="quote">«<span class="quote">copyright</span>»</span> ever more broadly. But in 1710, it
3645 wasn't so much a concept as it was a very particular right. The
3646 copyright was born as a very specific set of restrictions: It forbade
3647 others from reprinting a book. In 1710, the <span class="quote">«<span class="quote">copy-right</span>»</span> was a right
3648 to use a particular machine to replicate a particular work. It did not
3649 go beyond that very narrow right. It did not control any more
3650 generally how
3651
3652 a work could be <span class="emphasis"><em>used</em></span>. Today the right includes a
3653 large collection of restrictions on the freedom of others: It grants
3654 the author the exclusive right to copy, the exclusive right to
3655 distribute, the exclusive right to perform, and so on.
3656 </p><a class="indexterm" name="idp8080640"></a><a class="indexterm" name="idp8081392"></a><p>
3657 So, for example, even if the copyright to Shakespeare's works were
3658 perpetual, all that would have meant under the original meaning of the
3659 term was that no one could reprint Shakespeare's work without the
3660 permission of the Shakespeare estate. It would not have controlled
3661 anything, for example, about how the work could be performed, whether
3662 the work could be translated, or whether Kenneth Branagh would be
3663 allowed to make his films. The <span class="quote">«<span class="quote">copy-right</span>»</span> was only an exclusive
3664 right to print&#8212;no less, of course, but also no more.
3665 </p><a class="indexterm" name="idp8083456"></a><a class="indexterm" name="idxmonopolycopyrightas"></a><a class="indexterm" name="idp8085440"></a><p>
3666 Even that limited right was viewed with skepticism by the British.
3667 They had had a long and ugly experience with <span class="quote">«<span class="quote">exclusive rights,</span>»</span>
3668 especially <span class="quote">«<span class="quote">exclusive rights</span>»</span> granted by the Crown. The English had
3669 fought a civil war in part about the Crown's practice of handing out
3670 monopolies&#8212;especially monopolies for works that already
3671 existed. King Henry VIII granted a patent to print the Bible and a
3672 monopoly to Darcy to print playing cards. The English Parliament began
3673 to fight back against this power of the Crown. In 1656, it passed the
3674 Statute of Monopolies, limiting monopolies to patents for new
3675 inventions. And by 1710, Parliament was eager to deal with the growing
3676 monopoly in publishing.
3677 </p><p>
3678 Thus the <span class="quote">«<span class="quote">copy-right,</span>»</span> when viewed as a monopoly right, was naturally
3679 viewed as a right that should be limited. (However convincing the
3680 claim that <span class="quote">«<span class="quote">it's my property, and I should have it forever,</span>»</span> try
3681 sounding convincing when uttering, <span class="quote">«<span class="quote">It's my monopoly, and I should
3682 have it forever.</span>»</span>) The state would protect the exclusive right, but
3683 only so long as it benefited society. The British saw the harms from
3684 specialinterest favors; they passed a law to stop them.
3685 </p><a class="indexterm" name="idp8089888"></a><a class="indexterm" name="idxbooksellersenglish"></a><a class="indexterm" name="idp8091872"></a><a class="indexterm" name="idxcopyrightdurationof3"></a><p>
3686 Second, about booksellers. It wasn't just that the copyright was a
3687 monopoly. It was also that it was a monopoly held by the booksellers.
3688 Booksellers sound quaint and harmless to us. They were not viewed
3689 as harmless in seventeenth-century England. Members of the Conger
3690
3691
3692 were increasingly seen as monopolists of the worst
3693 kind&#8212;tools of the Crown's repression, selling the liberty of
3694 England to guarantee themselves a monopoly profit. The attacks against
3695 these monopolists were harsh: Milton described them as <span class="quote">«<span class="quote">old patentees
3696 and monopolizers in the trade of book-selling</span>»</span>; they were <span class="quote">«<span class="quote">men who do
3697 not therefore labour in an honest profession to which learning is
3698 indetted.</span>»</span><a href="#ftn.idp8095984" class="footnote" name="idp8095984"><sup class="footnote">[101]</sup></a>
3699 </p><a class="indexterm" name="idp8097264"></a><a class="indexterm" name="idp8098016"></a><p>
3700 Many believed the power the booksellers exercised over the spread of
3701 knowledge was harming that spread, just at the time the Enlightenment
3702 was teaching the importance of education and knowledge spread
3703 generally. The idea that knowledge should be free was a hallmark of
3704 the time, and these powerful commercial interests were interfering
3705 with that idea.
3706 </p><a class="indexterm" name="idxbritishparliament2"></a><p>
3707 To balance this power, Parliament decided to increase competition
3708 among booksellers, and the simplest way to do that was to spread the
3709 wealth of valuable books. Parliament therefore limited the term of
3710 copyrights, and thereby guaranteed that valuable books would become
3711 open to any publisher to publish after a limited time. Thus the setting
3712 of the term for existing works to just twenty-one years was a
3713                 compromise
3714 to fight the power of the booksellers. The limitation on terms was
3715 an indirect way to assure competition among publishers, and thus the
3716 construction and spread of culture.
3717 </p><a class="indexterm" name="idxstatuteofanne2"></a><a class="indexterm" name="idxcopyrightinperpetuity"></a><p>
3718 When 1731 (1710 + 21) came along, however, the booksellers were
3719 getting anxious. They saw the consequences of more competition, and
3720 like every competitor, they didn't like them. At first booksellers simply
3721 ignored the Statute of Anne, continuing to insist on the perpetual right
3722 to control publication. But in 1735 and 1737, they tried to persuade
3723 Parliament to extend their terms. Twenty-one years was not enough,
3724 they said; they needed more time.
3725 </p><p>
3726 Parliament rejected their requests. As one pamphleteer put it, in
3727 words that echo today,
3728 </p><div class="blockquote"><blockquote class="blockquote"><p>
3729 I see no Reason for granting a further Term now, which will not
3730 hold as well for granting it again and again, as often as the Old
3731
3732 ones Expire; so that should this Bill pass, it will in Effect be
3733 establishing a perpetual Monopoly, a Thing deservedly odious in the
3734 Eye of the Law; it will be a great Cramp to Trade, a Discouragement to
3735 Learning, no Benefit to the Authors, but a general Tax on the Publick;
3736 and all this only to increase the private Gain of the
3737 Booksellers.<a href="#ftn.idp8107072" class="footnote" name="idp8107072"><sup class="footnote">[102]</sup></a>
3738 </p></blockquote></div><a class="indexterm" name="idp8109296"></a><a class="indexterm" name="idp8110272"></a><a class="indexterm" name="idp8111248"></a><a class="indexterm" name="idp8112000"></a><a class="indexterm" name="idp8113008"></a><p>
3739 Having failed in Parliament, the publishers turned to the courts in a
3740 series of cases. Their argument was simple and direct: The Statute of
3741 Anne gave authors certain protections through positive law, but those
3742 protections were not intended as replacements for the common law.
3743 Instead, they were intended simply to supplement the common law.
3744 Under common law, it was already wrong to take another person's
3745 creative <span class="quote">«<span class="quote">property</span>»</span> and use it without his permission. The Statute of
3746 Anne, the booksellers argued, didn't change that. Therefore, just
3747 because the protections of the Statute of Anne expired, that didn't
3748 mean the protections of the common law expired: Under the common law
3749 they had the right to ban the publication of a book, even if its
3750 Statute of Anne copyright had expired. This, they argued, was the only
3751 way to protect authors.
3752 </p><a class="indexterm" name="idp8115392"></a><p>
3753 This was a clever argument, and one that had the support of some of
3754 the leading jurists of the day. It also displayed extraordinary
3755 chutzpah.  Until then, as law professor Raymond Patterson has put it,
3756 <span class="quote">«<span class="quote">The publishers &#8230; had as much concern for authors as a cattle
3757 rancher has for cattle.</span>»</span><a href="#ftn.idp7855696" class="footnote" name="idp7855696"><sup class="footnote">[103]</sup></a>
3758 The bookseller didn't care squat for the rights of the author.  His
3759 concern was the monopoly profit that the author's work gave.
3760 </p><a class="indexterm" name="idxdonaldsonalexander"></a><a class="indexterm" name="idp8121840"></a><a class="indexterm" name="idxscottishpublishers"></a><p>
3761 The booksellers' argument was not accepted without a fight.
3762 The hero of this fight was a Scottish bookseller named Alexander
3763 Donaldson.<a href="#ftn.idp8124240" class="footnote" name="idp8124240"><sup class="footnote">[104]</sup></a>
3764 </p><a class="indexterm" name="idxstatuteofanne3"></a><a class="indexterm" name="idxconger"></a><a class="indexterm" name="idp8127984"></a><a class="indexterm" name="idp8128736"></a><p>
3765 Donaldson was an outsider to the London Conger. He began his
3766 career in Edinburgh in 1750. The focus of his business was inexpensive
3767 reprints <span class="quote">«<span class="quote">of standard works whose copyright term had expired,</span>»</span> at least
3768 under the Statute of Anne.<a href="#ftn.idp8130288" class="footnote" name="idp8130288"><sup class="footnote">[105]</sup></a>
3769 Donaldson's publishing house prospered
3770
3771 and became <span class="quote">«<span class="quote">something of a center for literary Scotsmen.</span>»</span> <span class="quote">«<span class="quote">[A]mong
3772 them,</span>»</span> Professor Mark Rose writes, was <span class="quote">«<span class="quote">the young James Boswell
3773 who, together with his friend Andrew Erskine, published an anthology
3774 of contemporary Scottish poems with Donaldson.</span>»</span><a href="#ftn.idp8133632" class="footnote" name="idp8133632"><sup class="footnote">[106]</sup></a>
3775 </p><a class="indexterm" name="idxcommonlaw"></a><p>
3776 When the London booksellers tried to shut down Donaldson's shop in
3777 Scotland, he responded by moving his shop to London, where he sold
3778 inexpensive editions <span class="quote">«<span class="quote">of the most popular English books, in defiance
3779 of the supposed common law right of Literary
3780 Property.</span>»</span><a href="#ftn.idp8136560" class="footnote" name="idp8136560"><sup class="footnote">[107]</sup></a>
3781 His books undercut the Conger prices by 30 to 50 percent, and he
3782 rested his right to compete upon the ground that, under the Statute of
3783 Anne, the works he was selling had passed out of protection.
3784 </p><a class="indexterm" name="idp8138800"></a><a class="indexterm" name="idxmillarvtaylor"></a><p>
3785 The London booksellers quickly brought suit to block <span class="quote">«<span class="quote">piracy</span>»</span> like
3786 Donaldson's. A number of actions were successful against the <span class="quote">«<span class="quote">pirates,</span>»</span>
3787 the most important early victory being <em class="citetitle">Millar</em> v. <em class="citetitle">Taylor</em>.
3788 </p><a class="indexterm" name="idp8143008"></a><a class="indexterm" name="idp8143984"></a><a class="indexterm" name="idxthomsonjames"></a><a class="indexterm" name="idxcopyrightinperpetuity2"></a><a class="indexterm" name="idp8147680"></a><a class="indexterm" name="idp8148432"></a><p>
3789 Millar was a bookseller who in 1729 had purchased the rights to James
3790 Thomson's poem <span class="quote">«<span class="quote">The Seasons.</span>»</span> Millar complied with the requirements of
3791 the Statute of Anne, and therefore received the full protection of the
3792 statute. After the term of copyright ended, Robert Taylor began
3793 printing a competing volume. Millar sued, claiming a perpetual common
3794 law right, the Statute of Anne notwithstanding.<a href="#ftn.idp8150224" class="footnote" name="idp8150224"><sup class="footnote">[108]</sup></a>
3795 </p><a class="indexterm" name="idxmansfieldwilliammurraylord2"></a><p>
3796 Astonishingly to modern lawyers, one of the greatest judges in English
3797 history, Lord Mansfield, agreed with the booksellers. Whatever
3798 protection the Statute of Anne gave booksellers, it did not, he held,
3799 extinguish any common law right. The question was whether the common
3800 law would protect the author against subsequent <span class="quote">«<span class="quote">pirates.</span>»</span>
3801 Mansfield's answer was yes: The common law would bar Taylor from
3802 reprinting Thomson's poem without Millar's permission. That common law
3803 rule thus effectively gave the booksellers a perpetual right to
3804 control the publication of any book assigned to them.
3805 </p><a class="indexterm" name="idp8154608"></a><a class="indexterm" name="idp8155584"></a><a class="indexterm" name="idp8156560"></a><a class="indexterm" name="idxbritishparliament3"></a><p>
3806 Considered as a matter of abstract justice&#8212;reasoning as if
3807 justice were just a matter of logical deduction from first
3808 principles&#8212;Mansfield's conclusion might make some sense. But
3809 what it ignored was the larger issue that Parliament had struggled
3810 with in 1710: How best to limit
3811
3812 the monopoly power of publishers? Parliament's strategy was to offer a
3813 term for existing works that was long enough to buy peace in 1710, but
3814 short enough to assure that culture would pass into competition within
3815 a reasonable period of time. Within twenty-one years, Parliament
3816 believed, Britain would mature from the controlled culture that the
3817 Crown coveted to the free culture that we inherited.
3818 </p><a class="indexterm" name="idp8160528"></a><a class="indexterm" name="idxdonaldsonalexander2"></a><a class="indexterm" name="idxscottishpublishers2"></a><p>
3819 The fight to defend the limits of the Statute of Anne was not to end
3820 there, however, and it is here that Donaldson enters the mix.
3821 </p><a class="indexterm" name="idp8164496"></a><a class="indexterm" name="idp8165248"></a><a class="indexterm" name="idxhouseoflords"></a><a class="indexterm" name="idxsupremecourtushouseoflordsvs"></a><p>
3822 Millar died soon after his victory, so his case was not appealed. His
3823 estate sold Thomson's poems to a syndicate of printers that included
3824 Thomas Beckett.<a href="#ftn.idp8169152" class="footnote" name="idp8169152"><sup class="footnote">[109]</sup></a>
3825 Donaldson then released an unauthorized edition
3826 of Thomson's works. Beckett, on the strength of the decision in <em class="citetitle">Millar</em>,
3827 got an injunction against Donaldson. Donaldson appealed the case to
3828 the House of Lords, which functioned much like our own Supreme
3829 Court. In February of 1774, that body had the chance to interpret the
3830 meaning of Parliament's limits from sixty years before.
3831 </p><a class="indexterm" name="idp8170832"></a><a class="indexterm" name="idp8171808"></a><a class="indexterm" name="idxdonaldsonvbeckett"></a><a class="indexterm" name="idxcommonlaw2"></a><p>
3832 As few legal cases ever do, <em class="citetitle">Donaldson</em> v. <em class="citetitle">Beckett</em> drew an
3833 enormous amount of attention throughout Britain. Donaldson's lawyers
3834 argued that whatever rights may have existed under the common law, the
3835 Statute of Anne terminated those rights. After passage of the Statute
3836 of Anne, the only legal protection for an exclusive right to control
3837 publication came from that statute. Thus, they argued, after the term
3838 specified in the Statute of Anne expired, works that had been
3839 protected by the statute were no longer protected.
3840 </p><a class="indexterm" name="idp8176880"></a><p>
3841 The House of Lords was an odd institution. Legal questions were
3842 presented to the House and voted upon first by the <span class="quote">«<span class="quote">law lords,</span>»</span>
3843 members of special legal distinction who functioned much like the
3844 Justices in our Supreme Court. Then, after the law lords voted, the
3845 House of Lords generally voted.
3846 </p><a class="indexterm" name="idp8178928"></a><a class="indexterm" name="idxcopyrightinperpetuity3"></a><a class="indexterm" name="idxpublicdomainenglishlegalestablishmentof"></a><p>
3847 The reports about the law lords' votes are mixed. On some counts,
3848 it looks as if perpetual copyright prevailed. But there is no ambiguity
3849
3850 about how the House of Lords voted as whole. By a two-to-one majority
3851 (22 to 11) they voted to reject the idea of perpetual copyrights.
3852 Whatever one's understanding of the common law, now a copyright was
3853 fixed for a limited time, after which the work protected by copyright
3854 passed into the public domain.
3855 </p><a class="indexterm" name="idp8184000"></a><a class="indexterm" name="idp8184752"></a><a class="indexterm" name="idp8185504"></a><a class="indexterm" name="idp8186256"></a><a class="indexterm" name="idp8187008"></a><p>
3856 <span class="quote">«<span class="quote">The public domain.</span>»</span> Before the case of <em class="citetitle">Donaldson</em>
3857 v. <em class="citetitle">Beckett</em>, there was no clear idea of a public domain in
3858 England. Before 1774, there was a strong argument that common law
3859 copyrights were perpetual.  After 1774, the public domain was
3860 born. For the first time in Anglo-American history, the legal control
3861 over creative works expired, and the greatest works in English
3862 history&#8212;including those of Shakespeare, Bacon, Milton, Johnson,
3863 and Bunyan&#8212;were free of legal restraint.
3864 </p><a class="indexterm" name="idp8189168"></a><a class="indexterm" name="idp8190800"></a><a class="indexterm" name="idp8191776"></a><a class="indexterm" name="idp8192752"></a><a class="indexterm" name="idp8193728"></a><a class="indexterm" name="idp8194704"></a><p>
3865 It is hard for us to imagine, but this decision by the House of Lords
3866 fueled an extraordinarily popular and political reaction. In Scotland,
3867 where most of the <span class="quote">«<span class="quote">pirate publishers</span>»</span> did their work, people
3868 celebrated the decision in the streets. As the <em class="citetitle">Edinburgh Advertiser</em>
3869 reported, <span class="quote">«<span class="quote">No private cause has so much engrossed the attention of the
3870 public, and none has been tried before the House of Lords in the
3871 decision of which so many individuals were interested.</span>»</span> <span class="quote">«<span class="quote">Great
3872 rejoicing in Edinburgh upon victory over literary property: bonfires
3873 and illuminations.</span>»</span><a href="#ftn.idp8197600" class="footnote" name="idp8197600"><sup class="footnote">[110]</sup></a>
3874 </p><a class="indexterm" name="idp8198496"></a><p>
3875 In London, however, at least among publishers, the reaction was
3876 equally strong in the opposite direction. The <em class="citetitle">Morning Chronicle</em>
3877 reported:
3878 </p><div class="blockquote"><blockquote class="blockquote"><p>
3879 By the above decision &#8230; near 200,000 pounds worth of what was
3880 honestly purchased at public sale, and which was yesterday thought
3881 property is now reduced to nothing. The Booksellers of London and
3882 Westminster, many of whom sold estates and houses to purchase
3883 Copy-right, are in a manner ruined, and those who after many years
3884 industry thought they had acquired a competency to provide for their
3885 families now find themselves without a shilling to devise to their
3886 successors.<a href="#ftn.idp8117104" class="footnote" name="idp8117104"><sup class="footnote">[111]</sup></a>
3887 </p></blockquote></div><a class="indexterm" name="idp8202400"></a><a class="indexterm" name="idp8203152"></a><p>
3888
3889 <span class="quote">«<span class="quote">Ruined</span>»</span> is a bit of an exaggeration. But it is not an exaggeration to
3890 say that the change was profound. The decision of the House of Lords
3891 meant that the booksellers could no longer control how culture in
3892 England would grow and develop. Culture in England was thereafter
3893 <span class="emphasis"><em>free</em></span>.  Not in the sense that copyrights would not
3894 be respected, for of course, for a limited time after a work was
3895 published, the bookseller had an exclusive right to control the
3896 publication of that book. And not in the sense that books could be
3897 stolen, for even after a copyright expired, you still had to buy the
3898 book from someone. But <span class="emphasis"><em>free</em></span> in the sense that the
3899 culture and its growth would no longer be controlled by a small group
3900 of publishers. As every free market does, this free market of free
3901 culture would grow as the consumers and producers chose. English
3902 culture would develop as the many English readers chose to let it
3903 develop&#8212; chose in the books they bought and wrote; chose in the
3904 memes they repeated and endorsed. Chose in a <span class="emphasis"><em>competitive
3905 context</em></span>, not a context in which the choices about what
3906 culture is available to people and how they get access to it are made
3907 by the few despite the wishes of the many.
3908 </p><a class="indexterm" name="idp8207632"></a><a class="indexterm" name="idp8208608"></a><p>
3909 At least, this was the rule in a world where the Parliament is
3910 antimonopoly, resistant to the protectionist pleas of publishers. In a
3911 world where the Parliament is more pliant, free culture would be less
3912 protected.
3913 </p><a class="indexterm" name="idp8209984"></a><a class="indexterm" name="idp8210960"></a><a class="indexterm" name="idp8211936"></a><a class="indexterm" name="idp8212912"></a><a class="indexterm" name="idp8213888"></a><a class="indexterm" name="idp8214864"></a><a class="indexterm" name="idp8215840"></a><a class="indexterm" name="idp8216816"></a><a class="indexterm" name="idp8217792"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8033472" class="footnote"><p><a href="#idp8033472" class="para"><sup class="para">[98] </sup></a>
3914
3915 <a class="indexterm" name="idp8034112"></a>
3916 <a class="indexterm" name="idp8034864"></a>
3917 Jacob Tonson is typically remembered for his associations with prominent
3918 eighteenth-century literary figures, especially John Dryden, and for his
3919 handsome <span class="quote">«<span class="quote">definitive editions</span>»</span> of classic works. In addition to <em class="citetitle">Romeo and
3920 Juliet</em>, he published an astonishing array of works that still remain at the
3921 heart of the English canon, including collected works of Shakespeare, Ben
3922 Jonson, John Milton, and John Dryden. See Keith Walker, <span class="quote">«<span class="quote">Jacob Tonson,
3923 Bookseller,</span>»</span> <em class="citetitle">American Scholar</em> 61:3 (1992): 424&#8211;31.
3924 </p></div><div id="ftn.idp8037776" class="footnote"><p><a href="#idp8037776" class="para"><sup class="para">[99] </sup></a>
3925
3926 Lyman Ray Patterson, <em class="citetitle">Copyright in Historical Perspective</em> (Nashville:
3927 Vanderbilt University Press, 1968), 151&#8211;52.
3928 </p></div><div id="ftn.idp8045376" class="footnote"><p><a href="#idp8045376" class="para"><sup class="para">[100] </sup></a>
3929
3930 <a class="indexterm" name="idp8046016"></a>
3931 As Siva Vaidhyanathan nicely argues, it is erroneous to call this a
3932 <span class="quote">«<span class="quote">copyright law.</span>»</span> See Vaidhyanathan, <em class="citetitle">Copyrights and Copywrongs</em>, 40.
3933 </p></div><div id="ftn.idp8095984" class="footnote"><p><a href="#idp8095984" class="para"><sup class="para">[101] </sup></a>
3934
3935
3936 Philip Wittenberg, <em class="citetitle">The Protection and Marketing of Literary
3937 Property</em> (New York: J. Messner, Inc., 1937), 31.
3938 </p></div><div id="ftn.idp8107072" class="footnote"><p><a href="#idp8107072" class="para"><sup class="para">[102] </sup></a>
3939
3940 A Letter to a Member of Parliament concerning the Bill now depending
3941 in the House of Commons, for making more effectual an Act in the
3942 Eighth Year of the Reign of Queen Anne, entitled, An Act for the
3943 Encouragement of Learning, by Vesting the Copies of Printed Books in
3944 the Authors or Purchasers of such Copies, during the Times therein
3945 mentioned (London, 1735), in Brief Amici Curiae of Tyler T. Ochoa et
3946 al., 8, <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 537 U.S. 186 (2003) (No. 01-618).
3947 </p></div><div id="ftn.idp7855696" class="footnote"><p><a href="#idp7855696" class="para"><sup class="para">[103] </sup></a>
3948
3949 <a class="indexterm" name="idp8117840"></a>
3950 <a class="indexterm" name="idp8118592"></a>
3951 Lyman Ray Patterson, <span class="quote">«<span class="quote">Free Speech, Copyright, and Fair Use,</span>»</span> <em class="citetitle">Vanderbilt
3952 Law Review</em> 40 (1987): 28. For a wonderfully compelling account, see
3953 Vaidhyanathan, 37&#8211;48.
3954 </p></div><div id="ftn.idp8124240" class="footnote"><p><a href="#idp8124240" class="para"><sup class="para">[104] </sup></a>
3955
3956 For a compelling account, see David Saunders, <em class="citetitle">Authorship and Copyright</em>
3957 (London: Routledge, 1992), 62&#8211;69.
3958 </p></div><div id="ftn.idp8130288" class="footnote"><p><a href="#idp8130288" class="para"><sup class="para">[105] </sup></a>
3959
3960 Mark Rose, <em class="citetitle">Authors and Owners</em> (Cambridge: Harvard University Press,
3961 1993), 92.
3962 <a class="indexterm" name="idp8131312"></a>
3963 </p></div><div id="ftn.idp8133632" class="footnote"><p><a href="#idp8133632" class="para"><sup class="para">[106] </sup></a>
3964
3965 Ibid., 93.
3966 </p></div><div id="ftn.idp8136560" class="footnote"><p><a href="#idp8136560" class="para"><sup class="para">[107] </sup></a>
3967
3968 <a class="indexterm" name="idp8137200"></a>
3969 Lyman Ray Patterson, <em class="citetitle">Copyright in Historical Perspective</em>, 167 (quoting
3970 Borwell).
3971 </p></div><div id="ftn.idp8150224" class="footnote"><p><a href="#idp8150224" class="para"><sup class="para">[108] </sup></a>
3972
3973 Howard B. Abrams, <span class="quote">«<span class="quote">The Historic Foundation of American Copyright Law:
3974 Exploding the Myth of Common Law Copyright,</span>»</span> <em class="citetitle">Wayne Law Review</em> 29
3975 (1983): 1152.
3976 </p></div><div id="ftn.idp8169152" class="footnote"><p><a href="#idp8169152" class="para"><sup class="para">[109] </sup></a>
3977
3978 Ibid., 1156.
3979 </p></div><div id="ftn.idp8197600" class="footnote"><p><a href="#idp8197600" class="para"><sup class="para">[110] </sup></a>
3980
3981 Rose, 97.
3982 </p></div><div id="ftn.idp8117104" class="footnote"><p><a href="#idp8117104" class="para"><sup class="para">[111] </sup></a>
3983
3984 Ibid.
3985 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="recorders"></a>Chapter 7. Chapter Seven: Recorders</h2></div></div></div><a class="indexterm" name="idxcopyrightlawfairuseand"></a><a class="indexterm" name="idxdocumentaryfilm"></a><a class="indexterm" name="idxelsejon"></a><a class="indexterm" name="idxfairuseindocumentaryfilm"></a><a class="indexterm" name="idxfilmsfairuseofcopyrightedmaterialin"></a><p>
3986 <span class="strong"><strong>Jon Else</strong></span> is a filmmaker. He is best
3987 known for his documentaries and has been very successful in spreading
3988 his art. He is also a teacher, and as a teacher myself, I envy the
3989 loyalty and admiration that his students feel for him. (I met, by
3990 accident, two of his students at a dinner party.  He was their god.)
3991 </p><p>
3992 Else worked on a documentary that I was involved in. At a break,
3993 he told me a story about the freedom to create with film in America
3994 today.
3995 </p><a class="indexterm" name="idxwagnerrichard"></a><a class="indexterm" name="idp8230304"></a><p>
3996 In 1990, Else was working on a documentary about Wagner's Ring
3997 Cycle. The focus was stagehands at the San Francisco Opera.
3998 Stagehands are a particularly funny and colorful element of an opera.
3999 During a show, they hang out below the stage in the grips' lounge and
4000 in the lighting loft. They make a perfect contrast to the art on the
4001 stage.
4002 </p><a class="indexterm" name="idxsimpsonsthe"></a><p>
4003 During one of the performances, Else was shooting some stagehands
4004 playing checkers. In one corner of the room was a television set.
4005 Playing on the television set, while the stagehands played checkers
4006 and the opera company played Wagner, was <em class="citetitle">The Simpsons</em>. As Else judged
4007
4008 it, this touch of cartoon helped capture the flavor of what was special
4009 about the scene.
4010 </p><a class="indexterm" name="idp8234416"></a><a class="indexterm" name="idp8235392"></a><p>
4011 Years later, when he finally got funding to complete the film, Else
4012 attempted to clear the rights for those few seconds of <em class="citetitle">The Simpsons</em>.
4013 For of course, those few seconds are copyrighted; and of course, to use
4014 copyrighted material you need the permission of the copyright owner,
4015 unless <span class="quote">«<span class="quote">fair use</span>»</span> or some other privilege applies.
4016 </p><a class="indexterm" name="idxgraciefilms"></a><a class="indexterm" name="idxgroeningmatt"></a><p>
4017 Else called <em class="citetitle">Simpsons</em> creator Matt Groening's office to get permission.
4018 Groening approved the shot. The shot was a four-and-a-halfsecond image
4019 on a tiny television set in the corner of the room. How could it hurt?
4020 Groening was happy to have it in the film, but he told Else to contact
4021 Gracie Films, the company that produces the program.
4022 </p><a class="indexterm" name="idxfoxfilmcompany"></a><p>
4023 Gracie Films was okay with it, too, but they, like Groening, wanted
4024 to be careful. So they told Else to contact Fox, Gracie's parent company.
4025 Else called Fox and told them about the clip in the corner of the one
4026 room shot of the film. Matt Groening had already given permission,
4027 Else said. He was just confirming the permission with Fox.
4028 </p><a class="indexterm" name="idp8243392"></a><p>
4029 Then, as Else told me, <span class="quote">«<span class="quote">two things happened. First we discovered
4030 &#8230; that Matt Groening doesn't own his own creation&#8212;or at
4031 least that someone [at Fox] believes he doesn't own his own creation.</span>»</span>
4032 And second, Fox <span class="quote">«<span class="quote">wanted ten thousand dollars as a licensing fee for us
4033 to use this four-point-five seconds of &#8230; entirely unsolicited
4034 <em class="citetitle">Simpsons</em> which was in the corner of the shot.</span>»</span>
4035 </p><a class="indexterm" name="idp8246336"></a><a class="indexterm" name="idp8247200"></a><a class="indexterm" name="idxherrerarebecca"></a><p>
4036 Else was certain there was a mistake. He worked his way up to someone
4037 he thought was a vice president for licensing, Rebecca Herrera.  He
4038 explained to her, <span class="quote">«<span class="quote">There must be some mistake here. &#8230;  We're
4039 asking for your educational rate on this.</span>»</span> That was the educational
4040 rate, Herrera told Else. A day or so later, Else called again to
4041 confirm what he had been told.
4042 </p><a class="indexterm" name="idp8250592"></a><p>
4043 <span class="quote">«<span class="quote">I wanted to make sure I had my facts straight,</span>»</span> he told me. <span class="quote">«<span class="quote">Yes, you
4044 have your facts straight,</span>»</span> she said. It would cost $10,000 to use the
4045 clip of <em class="citetitle">The Simpsons</em> in the corner of a shot in a documentary film
4046 about
4047
4048
4049 Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, <span class="quote">«<span class="quote">And
4050 if you quote me, I'll turn you over to our attorneys.</span>»</span> As an assistant
4051 to Herrera told Else later on, <span class="quote">«<span class="quote">They don't give a shit. They just want
4052 the money.</span>»</span>
4053 </p><a class="indexterm" name="idp8254064"></a><a class="indexterm" name="idp8255040"></a><a class="indexterm" name="idp8255792"></a><p>
4054 Else didn't have the money to buy the right to replay what was playing
4055 on the television backstage at the San Francisco Opera. To reproduce
4056 this reality was beyond the documentary filmmaker's budget. At the
4057 very last minute before the film was to be released, Else digitally
4058 replaced the shot with a clip from another film that he had worked on,
4059 <em class="citetitle">The Day After Trinity</em>, from ten years before.
4060 </p><a class="indexterm" name="idxfoxfilmcompany2"></a><a class="indexterm" name="idxgroeningmatt2"></a><p>
4061 There's no doubt that someone, whether Matt Groening or Fox, owns the
4062 copyright to <em class="citetitle">The Simpsons</em>. That copyright is their property.  To use
4063 that copyrighted material thus sometimes requires the permission of
4064 the copyright owner. If the use that Else wanted to make of the
4065 <em class="citetitle">Simpsons</em> copyright were one of the uses restricted by the law, then he
4066 would need to get the permission of the copyright owner before he
4067 could use the work in that way. And in a free market, it is the owner
4068 of the copyright who gets to set the price for any use that the law
4069 says the owner gets to control.
4070 </p><p>
4071 For example, <span class="quote">«<span class="quote">public performance</span>»</span> is a use of <em class="citetitle">The Simpsons</em> that the
4072 copyright owner gets to control. If you take a selection of favorite
4073 episodes, rent a movie theater, and charge for tickets to come see <span class="quote">«<span class="quote">My
4074 Favorite <em class="citetitle">Simpsons</em>,</span>»</span> then you need to get permission from the copyright
4075 owner. And the copyright owner (rightly, in my view) can charge
4076 whatever she wants&#8212;$10 or $1,000,000. That's her right, as set
4077 by the law.
4078 </p><p>
4079 But when lawyers hear this story about Jon Else and Fox, their first
4080 thought is <span class="quote">«<span class="quote">fair use.</span>»</span><a href="#ftn.idp8265104" class="footnote" name="idp8265104"><sup class="footnote">[112]</sup></a>
4081 Else's use of just 4.5 seconds of an indirect shot of a <em class="citetitle">Simpsons</em>
4082 episode is clearly a fair use of <em class="citetitle">The Simpsons</em>&#8212;and fair use does
4083 not require the permission of anyone.
4084 </p><a class="indexterm" name="idp8268432"></a><a class="indexterm" name="idp8269408"></a><p>
4085
4086 So I asked Else why he didn't just rely upon <span class="quote">«<span class="quote">fair use.</span>»</span> Here's his reply:
4087 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idxfairuselegalintimidationtacticsagainst"></a><p>
4088 The <em class="citetitle">Simpsons</em> fiasco was for me a great lesson in the gulf between what
4089 lawyers find irrelevant in some abstract sense, and what is crushingly
4090 relevant in practice to those of us actually trying to make and
4091 broadcast documentaries. I never had any doubt that it was <span class="quote">«<span class="quote">clearly
4092 fair use</span>»</span> in an absolute legal sense. But I couldn't rely on the
4093 concept in any concrete way. Here's why:
4094 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><a class="indexterm" name="idp8275920"></a><p>
4095
4096 Before our films can be broadcast, the network requires that we buy
4097 Errors and Omissions insurance. The carriers require a detailed
4098 <span class="quote">«<span class="quote">visual cue sheet</span>»</span> listing the source and licensing status of each
4099 shot in the film. They take a dim view of <span class="quote">«<span class="quote">fair use,</span>»</span> and a claim of
4100 <span class="quote">«<span class="quote">fair use</span>»</span> can grind the application process to a halt.
4101 </p></li><li class="listitem"><a class="indexterm" name="idxfoxfilmcompany3"></a><a class="indexterm" name="idp8280208"></a><a class="indexterm" name="idp8280960"></a><a class="indexterm" name="idp8281712"></a><p>
4102
4103 I probably never should have asked Matt Groening in the first
4104 place. But I knew (at least from folklore) that Fox had a history of
4105 tracking down and stopping unlicensed <em class="citetitle">Simpsons</em> usage, just as George
4106 Lucas had a very high profile litigating <em class="citetitle">Star Wars</em> usage. So I decided
4107 to play by the book, thinking that we would be granted free or cheap
4108 license to four seconds of <em class="citetitle">Simpsons</em>. As a documentary producer working
4109 to exhaustion on a shoestring, the last thing I wanted was to risk
4110 legal trouble, even nuisance legal trouble, and even to defend a
4111 principle.
4112 </p></li><li class="listitem"><p>
4113
4114 I did, in fact, speak with one of your colleagues at Stanford Law
4115 School &#8230; who confirmed that it was fair use. He also confirmed
4116 that Fox would <span class="quote">«<span class="quote">depose and litigate you to within an inch of your
4117 life,</span>»</span> regardless of the merits of my claim. He made clear that it
4118 would boil down to who had the bigger legal department and the deeper
4119 pockets, me or them.
4120
4121 </p><a class="indexterm" name="idp8286816"></a></li><li class="listitem"><p>
4122
4123 The question of fair use usually comes up at the end of the
4124 project, when we are up against a release deadline and out of
4125 money.
4126 </p></li></ol></div></blockquote></div><a class="indexterm" name="idp8289088"></a><p>
4127 In theory, fair use means you need no permission. The theory therefore
4128 supports free culture and insulates against a permission culture.  But
4129 in practice, fair use functions very differently. The fuzzy lines of
4130 the law, tied to the extraordinary liability if lines are crossed,
4131 means that the effective fair use for many types of creators is
4132 slight. The law has the right aim; practice has defeated the aim.
4133 </p><p>
4134 This practice shows just how far the law has come from its
4135 eighteenth-century roots. The law was born as a shield to protect
4136 publishers' profits against the unfair competition of a pirate. It has
4137 matured into a sword that interferes with any use, transformative or
4138 not.
4139 </p><a class="indexterm" name="idp8291552"></a><a class="indexterm" name="idp8292528"></a><a class="indexterm" name="idp8293504"></a><a class="indexterm" name="idp8294480"></a><a class="indexterm" name="idp8295456"></a><a class="indexterm" name="idp8296432"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8265104" class="footnote"><p><a href="#idp8265104" class="para"><sup class="para">[112] </sup></a>
4140
4141 For an excellent argument that such use is <span class="quote">«<span class="quote">fair use,</span>»</span> but that
4142 lawyers don't permit recognition that it is <span class="quote">«<span class="quote">fair use,</span>»</span> see Richard
4143 A. Posner with William F. Patry, <span class="quote">«<span class="quote">Fair Use and Statutory Reform in the
4144 Wake of <em class="citetitle">Eldred</em></span>»</span> (draft on file with author), University of Chicago
4145 Law School, 5 August 2003.
4146 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="transformers"></a>Chapter 8. Chapter Eight: Transformers</h2></div></div></div><a class="indexterm" name="idp8298912"></a><a class="indexterm" name="idxalbenalex1"></a><a class="indexterm" name="idp8300896"></a><p>
4147 <span class="strong"><strong>In 1993</strong></span>, Alex Alben was a lawyer
4148 working at Starwave, Inc.  Starwave was an innovative company founded
4149 by Microsoft cofounder Paul Allen to develop digital
4150 entertainment. Long before the Internet became popular, Starwave began
4151 investing in new technology for delivering entertainment in
4152 anticipation of the power of networks.
4153 </p><a class="indexterm" name="idxartistsretrospective"></a><a class="indexterm" name="idxcdroms"></a><p>
4154 Alben had a special interest in new technology. He was intrigued by
4155 the emerging market for CD-ROM technology&#8212;not to distribute
4156 film, but to do things with film that otherwise would be very
4157 difficult.  In 1993, he launched an initiative to develop a product to
4158 build retrospectives on the work of particular actors. The first actor
4159 chosen was Clint Eastwood. The idea was to showcase all of the work of
4160 Eastwood, with clips from his films and interviews with figures
4161 important to his career.
4162 </p><p>
4163 At that time, Eastwood had made more than fifty films, as an actor and
4164 as a director. Alben began with a series of interviews with Eastwood,
4165 asking him about his career. Because Starwave produced those
4166 interviews, it was free to include them on the CD.
4167 </p><p>
4168
4169 That alone would not have made a very interesting product, so
4170 Starwave wanted to add content from the movies in Eastwood's career:
4171 posters, scripts, and other material relating to the films Eastwood
4172 made. Most of his career was spent at Warner Brothers, and so it was
4173 relatively easy to get permission for that content.
4174 </p><p>
4175 Then Alben and his team decided to include actual film clips. <span class="quote">«<span class="quote">Our
4176 goal was that we were going to have a clip from every one of
4177 Eastwood's films,</span>»</span> Alben told me. It was here that the problem
4178 arose. <span class="quote">«<span class="quote">No one had ever really done this before,</span>»</span> Alben explained. <span class="quote">«<span class="quote">No
4179 one had ever tried to do this in the context of an artistic look at an
4180 actor's career.</span>»</span>
4181 </p><p>
4182 Alben brought the idea to Michael Slade, the CEO of Starwave.
4183 Slade asked, <span class="quote">«<span class="quote">Well, what will it take?</span>»</span>
4184 </p><p>
4185 Alben replied, <span class="quote">«<span class="quote">Well, we're going to have to clear rights from
4186 everyone who appears in these films, and the music and everything
4187 else that we want to use in these film clips.</span>»</span> Slade said, <span class="quote">«<span class="quote">Great! Go
4188 for it.</span>»</span><a href="#ftn.idp8311904" class="footnote" name="idp8311904"><sup class="footnote">[113]</sup></a>
4189 </p><p>
4190 The problem was that neither Alben nor Slade had any idea what
4191 clearing those rights would mean. Every actor in each of the films
4192 could have a claim to royalties for the reuse of that film. But CD-
4193 ROMs had not been specified in the contracts for the actors, so there
4194 was no clear way to know just what Starwave was to do.
4195 </p><p>
4196 I asked Alben how he dealt with the problem. With an obvious
4197 pride in his resourcefulness that obscured the obvious bizarreness of his
4198 tale, Alben recounted just what they did:
4199 </p><div class="blockquote"><blockquote class="blockquote"><p>
4200 So we very mechanically went about looking up the film clips.  We made
4201 some artistic decisions about what film clips to include&#8212;of
4202 course we were going to use the <span class="quote">«<span class="quote">Make my day</span>»</span> clip from <em class="citetitle">Dirty
4203 Harry</em>. But you then need to get the guy on the ground who's wiggling
4204 under the gun and you need to get his permission.  And then you have
4205 to decide what you are going to pay him.
4206 </p><p>
4207
4208 We decided that it would be fair if we offered them the dayplayer rate
4209 for the right to reuse that performance. We're talking about a clip of
4210 less than a minute, but to reuse that performance in the CD-ROM the
4211 rate at the time was about $600.  So we had to identify the
4212 people&#8212;some of them were hard to identify because in Eastwood
4213 movies you can't tell who's the guy crashing through the
4214 glass&#8212;is it the actor or is it the stuntman?  And then we just,
4215 we put together a team, my assistant and some others, and we just
4216 started calling people.
4217 </p></blockquote></div><a class="indexterm" name="idp8319104"></a><p>
4218 Some actors were glad to help&#8212;Donald Sutherland, for example,
4219 followed up himself to be sure that the rights had been cleared.
4220 Others were dumbfounded at their good fortune. Alben would ask,
4221 <span class="quote">«<span class="quote">Hey, can I pay you $600 or maybe if you were in two films, you
4222 know, $1,200?</span>»</span> And they would say, <span class="quote">«<span class="quote">Are you for real? Hey, I'd love
4223 to get $1,200.</span>»</span> And some of course were a bit difficult (estranged
4224 ex-wives, in particular). But eventually, Alben and his team had
4225 cleared the rights to this retrospective CD-ROM on Clint Eastwood's
4226 career.
4227 </p><p>
4228 It was one <span class="emphasis"><em>year</em></span> later&#8212;<span class="quote">«<span class="quote">and even then we
4229 weren't sure whether we were totally in the clear.</span>»</span>
4230 </p><p>
4231 Alben is proud of his work. The project was the first of its kind and
4232 the only time he knew of that a team had undertaken such a massive
4233 project for the purpose of releasing a retrospective.
4234 </p><div class="blockquote"><blockquote class="blockquote"><p>
4235 Everyone thought it would be too hard. Everyone just threw up their
4236 hands and said, <span class="quote">«<span class="quote">Oh, my gosh, a film, it's so many copyrights, there's
4237 the music, there's the screenplay, there's the director, there's the
4238 actors.</span>»</span> But we just broke it down. We just put it into its
4239 constituent parts and said, <span class="quote">«<span class="quote">Okay, there's this many actors, this many
4240 directors, &#8230; this many musicians,</span>»</span> and we just went at it very
4241 systematically and cleared the rights.
4242 </p></blockquote></div><p>
4243
4244
4245 And no doubt, the product itself was exceptionally good. Eastwood
4246 loved it, and it sold very well.
4247 </p><a class="indexterm" name="idp8326768"></a><p>
4248 But I pressed Alben about how weird it seems that it would have to
4249 take a year's work simply to clear rights. No doubt Alben had done
4250 this efficiently, but as Peter Drucker has famously quipped, <span class="quote">«<span class="quote">There is
4251 nothing so useless as doing efficiently that which should not be done
4252 at all.</span>»</span><a href="#ftn.idp8328336" class="footnote" name="idp8328336"><sup class="footnote">[114]</sup></a>
4253 Did it make sense, I asked Alben, that this is the way a new work
4254 has to be made?
4255 </p><p>
4256 For, as he acknowledged, <span class="quote">«<span class="quote">very few &#8230; have the time and resources,
4257 and the will to do this,</span>»</span> and thus, very few such works would ever be
4258 made. Does it make sense, I asked him, from the standpoint of what
4259 anybody really thought they were ever giving rights for originally, that
4260 you would have to go clear rights for these kinds of clips?
4261 </p><div class="blockquote"><blockquote class="blockquote"><p>
4262 I don't think so. When an actor renders a performance in a movie,
4263 he or she gets paid very well. &#8230; And then when 30 seconds of
4264 that performance is used in a new product that is a retrospective
4265 of somebody's career, I don't think that that person &#8230; should be
4266 compensated for that.
4267 </p></blockquote></div><p>
4268 Or at least, is this <span class="emphasis"><em>how</em></span> the artist should be
4269 compensated? Would it make sense, I asked, for there to be some kind
4270 of statutory license that someone could pay and be free to make
4271 derivative use of clips like this?  Did it really make sense that a
4272 follow-on creator would have to track down every artist, actor,
4273 director, musician, and get explicit permission from each? Wouldn't a
4274 lot more be created if the legal part of the creative process could be
4275 made to be more clean?
4276 </p><div class="blockquote"><blockquote class="blockquote"><p>
4277 Absolutely. I think that if there were some fair-licensing
4278 mechanism&#8212;where you weren't subject to hold-ups and you weren't
4279 subject to estranged former spouses&#8212;you'd see a lot more of this
4280 work, because it wouldn't be so daunting to try to put together a
4281
4282 retrospective of someone's career and meaningfully illustrate it with
4283 lots of media from that person's career. You'd build in a cost as the
4284 producer of one of these things. You'd build in a cost of paying X
4285 dollars to the talent that performed. But it would be a known
4286 cost. That's the thing that trips everybody up and makes this kind of
4287 product hard to get off the ground. If you knew I have a hundred
4288 minutes of film in this product and it's going to cost me X, then you
4289 build your budget around it, and you can get investments and
4290 everything else that you need to produce it. But if you say, <span class="quote">«<span class="quote">Oh, I
4291 want a hundred minutes of something and I have no idea what it's going
4292 to cost me, and a certain number of people are going to hold me up for
4293 money,</span>»</span> then it becomes difficult to put one of these things together.
4294 </p></blockquote></div><p>
4295 Alben worked for a big company. His company was backed by some of the
4296 richest investors in the world. He therefore had authority and access
4297 that the average Web designer would not have. So if it took him a
4298 year, how long would it take someone else? And how much creativity is
4299 never made just because the costs of clearing the rights are so high?
4300 </p><a class="indexterm" name="idp8337232"></a><a class="indexterm" name="idp8338096"></a><p>
4301 These costs are the burdens of a kind of regulation. Put on a
4302 Republican hat for a moment, and get angry for a bit. The government
4303 defines the scope of these rights, and the scope defined determines
4304 how much it's going to cost to negotiate them. (Remember the idea that
4305 land runs to the heavens, and imagine the pilot purchasing flythrough
4306 rights as he negotiates to fly from Los Angeles to San Francisco.)
4307 These rights might well have once made sense; but as circumstances
4308 change, they make no sense at all. Or at least, a well-trained,
4309 regulationminimizing Republican should look at the rights and ask,
4310 <span class="quote">«<span class="quote">Does this still make sense?</span>»</span>
4311 </p><a class="indexterm" name="idp8341072"></a><p>
4312 I've seen the flash of recognition when people get this point, but only
4313 a few times. The first was at a conference of federal judges in California.
4314 The judges were gathered to discuss the emerging topic of cyber-law. I
4315 was asked to be on the panel. Harvey Saferstein, a well-respected lawyer
4316
4317
4318 from an L.A. firm, introduced the panel with a video that he and a
4319 friend, Robert Fairbank, had produced.
4320 </p><p>
4321 The video was a brilliant collage of film from every period in the
4322 twentieth century, all framed around the idea of a <em class="citetitle">60 Minutes</em> episode.
4323 The execution was perfect, down to the sixty-minute stopwatch. The
4324 judges loved every minute of it.
4325 </p><a class="indexterm" name="idp8344144"></a><p>
4326 When the lights came up, I looked over to my copanelist, David
4327 Nimmer, perhaps the leading copyright scholar and practitioner in the
4328 nation. He had an astonished look on his face, as he peered across the
4329 room of over 250 well-entertained judges. Taking an ominous tone, he
4330 began his talk with a question: <span class="quote">«<span class="quote">Do you know how many federal laws
4331 were just violated in this room?</span>»</span>
4332 </p><p>
4333 <a class="indexterm" name="idp8346320"></a>
4334 <a class="indexterm" name="idp8347072"></a>
4335 <a class="indexterm" name="idp8347824"></a>
4336 <a class="indexterm" name="idp8348832"></a>
4337 <a class="indexterm" name="idp8349584"></a>
4338 For of course, the two brilliantly talented creators who made this
4339 film hadn't done what Alben did. They hadn't spent a year clearing the
4340 rights to these clips; technically, what they had done violated the
4341 law.  Of course, it wasn't as if they or anyone were going to be
4342 prosecuted for this violation (the presence of 250 judges and a gaggle
4343 of federal marshals notwithstanding). But Nimmer was making an
4344 important point: A year before anyone would have heard of the word
4345 Napster, and two years before another member of our panel, David
4346 Boies, would defend Napster before the Ninth Circuit Court of Appeals,
4347 Nimmer was trying to get the judges to see that the law would not be
4348 friendly to the capacities that this technology would
4349 enable. Technology means you can now do amazing things easily; but you
4350 couldn't easily do them legally.
4351 </p><p>
4352 We live in a <span class="quote">«<span class="quote">cut and paste</span>»</span> culture enabled by technology. Anyone
4353 building a presentation knows the extraordinary freedom that the cut
4354 and paste architecture of the Internet created&#8212;in a second you can
4355 find just about any image you want; in another second, you can have it
4356 planted in your presentation.
4357 </p><a class="indexterm" name="idp8351952"></a><p>
4358 But presentations are just a tiny beginning. Using the Internet and
4359
4360 its archives, musicians are able to string together mixes of sound
4361 never before imagined; filmmakers are able to build movies out of
4362 clips on computers around the world. An extraordinary site in Sweden
4363 takes images of politicians and blends them with music to create
4364 biting political commentary. A site called Camp Chaos has produced
4365 some of the most biting criticism of the record industry that there is
4366 through the mixing of Flash! and music.
4367 </p><p>
4368 All of these creations are technically illegal. Even if the creators
4369 wanted to be <span class="quote">«<span class="quote">legal,</span>»</span> the cost of complying with the law is impossibly
4370 high. Therefore, for the law-abiding sorts, a wealth of creativity is
4371 never made. And for that part that is made, if it doesn't follow the
4372 clearance rules, it doesn't get released.
4373 </p><p>
4374 To some, these stories suggest a solution: Let's alter the mix of
4375 rights so that people are free to build upon our culture. Free to add
4376 or mix as they see fit. We could even make this change without
4377 necessarily requiring that the <span class="quote">«<span class="quote">free</span>»</span> use be free as in <span class="quote">«<span class="quote">free beer.</span>»</span>
4378 Instead, the system could simply make it easy for follow-on creators
4379 to compensate artists without requiring an army of lawyers to come
4380 along: a rule, for example, that says <span class="quote">«<span class="quote">the royalty owed the copyright
4381 owner of an unregistered work for the derivative reuse of his work
4382 will be a flat 1 percent of net revenues, to be held in escrow for the
4383 copyright owner.</span>»</span> Under this rule, the copyright owner could benefit
4384 from some royalty, but he would not have the benefit of a full
4385 property right (meaning the right to name his own price) unless he
4386 registers the work.
4387 </p><p>
4388 Who could possibly object to this? And what reason would there be
4389 for objecting? We're talking about work that is not now being made;
4390 which if made, under this plan, would produce new income for artists.
4391 What reason would anyone have to oppose it?
4392 </p><p>
4393 <span class="strong"><strong>In February 2003</strong></span>, DreamWorks
4394 studios announced an agreement with Mike Myers, the comic genius of
4395 <em class="citetitle">Saturday Night Live</em> and
4396
4397 Austin Powers. According to the announcement, Myers and Dream-Works
4398 would work together to form a <span class="quote">«<span class="quote">unique filmmaking pact.</span>»</span> Under the
4399 agreement, DreamWorks <span class="quote">«<span class="quote">will acquire the rights to existing motion
4400 picture hits and classics, write new storylines and&#8212;with the use
4401 of stateof-the-art digital technology&#8212;insert Myers and other
4402 actors into the film, thereby creating an entirely new piece of
4403 entertainment.</span>»</span>
4404 </p><p>
4405 The announcement called this <span class="quote">«<span class="quote">film sampling.</span>»</span> As Myers explained,
4406 <span class="quote">«<span class="quote">Film Sampling is an exciting way to put an original spin on existing
4407 films and allow audiences to see old movies in a new light. Rap
4408 artists have been doing this for years with music and now we are able
4409 to take that same concept and apply it to film.</span>»</span> Steven Spielberg is
4410 quoted as saying, <span class="quote">«<span class="quote">If anyone can create a way to bring old films to
4411 new audiences, it is Mike.</span>»</span>
4412 </p><p>
4413 Spielberg is right. Film sampling by Myers will be brilliant. But if
4414 you don't think about it, you might miss the truly astonishing point
4415 about this announcement. As the vast majority of our film heritage
4416 remains under copyright, the real meaning of the DreamWorks
4417 announcement is just this: It is Mike Myers and only Mike Myers who is
4418 free to sample. Any general freedom to build upon the film archive of
4419 our culture, a freedom in other contexts presumed for us all, is now a
4420 privilege reserved for the funny and famous&#8212;and presumably rich.
4421 </p><p>
4422 This privilege becomes reserved for two sorts of reasons. The first
4423 continues the story of the last chapter: the vagueness of <span class="quote">«<span class="quote">fair use.</span>»</span>
4424 Much of <span class="quote">«<span class="quote">sampling</span>»</span> should be considered <span class="quote">«<span class="quote">fair use.</span>»</span> But few would
4425 rely upon so weak a doctrine to create. That leads to the second reason
4426 that the privilege is reserved for the few: The costs of negotiating the
4427 legal rights for the creative reuse of content are astronomically high.
4428 These costs mirror the costs with fair use: You either pay a lawyer to
4429 defend your fair use rights or pay a lawyer to track down permissions
4430 so you don't have to rely upon fair use rights. Either way, the creative
4431 process is a process of paying lawyers&#8212;again a privilege, or perhaps a
4432 curse, reserved for the few.
4433 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8311904" class="footnote"><p><a href="#idp8311904" class="para"><sup class="para">[113] </sup></a>
4434
4435 Technically, the rights that Alben had to clear were mainly those of
4436 publicity&#8212;rights an artist has to control the commercial
4437 exploitation of his image.  But these rights, too, burden <span class="quote">«<span class="quote">Rip, Mix,
4438 Burn</span>»</span> creativity, as this chapter evinces.
4439 <a class="indexterm" name="idp8313360"></a>
4440 <a class="indexterm" name="idp8314368"></a>
4441 </p></div><div id="ftn.idp8328336" class="footnote"><p><a href="#idp8328336" class="para"><sup class="para">[114] </sup></a>
4442
4443 U.S. Department of Commerce Office of Acquisition Management, <em class="citetitle">Seven
4444 Steps to Performance-Based Services Acquisition</em>, available at
4445 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #22</a>.
4446 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="collectors"></a>Chapter 9. Chapter Nine: Collectors</h2></div></div></div><a class="indexterm" name="idxarchivesdigital1"></a><a class="indexterm" name="idp8369360"></a><p>
4447 <span class="strong"><strong>In April 1996</strong></span>, millions of
4448 <span class="quote">«<span class="quote">bots</span>»</span>&#8212;computer codes designed to
4449 <span class="quote">«<span class="quote">spider,</span>»</span> or automatically search the Internet and copy
4450 content&#8212;began running across the Net. Page by page, these bots
4451 copied Internet-based information onto a small set of computers
4452 located in a basement in San Francisco's Presidio. Once the bots
4453 finished the whole of the Internet, they started again. Over and over
4454 again, once every two months, these bits of code took copies of the
4455 Internet and stored them.
4456 </p><a class="indexterm" name="idp8372304"></a><p>
4457 By October 2001, the bots had collected more than five years of
4458 copies. And at a small announcement in Berkeley, California, the
4459 archive that these copies created, the Internet Archive, was opened to
4460 the world. Using a technology called <span class="quote">«<span class="quote">the Way Back Machine,</span>»</span> you could
4461 enter a Web page, and see all of its copies going back to 1996, as
4462 well as when those pages changed.
4463 </p><a class="indexterm" name="idxorwellgeorge"></a><p>
4464 This is the thing about the Internet that Orwell would have
4465 appreciated.  In the dystopia described in <em class="citetitle">1984</em>, old newspapers were
4466 constantly updated to assure that the current view of the world,
4467 approved of by the government, was not contradicted by previous news
4468 reports.
4469 </p><p>
4470
4471 Thousands of workers constantly reedited the past, meaning there was
4472 no way ever to know whether the story you were reading today was the
4473 story that was printed on the date published on the paper.
4474 </p><p>
4475 It's the same with the Internet. If you go to a Web page today,
4476 there's no way for you to know whether the content you are reading is
4477 the same as the content you read before. The page may seem the same,
4478 but the content could easily be different. The Internet is Orwell's
4479 library&#8212;constantly updated, without any reliable memory.
4480 </p><a class="indexterm" name="idp8377616"></a><a class="indexterm" name="idp8379120"></a><p>
4481 Until the Way Back Machine, at least. With the Way Back Machine, and
4482 the Internet Archive underlying it, you can see what the Internet
4483 was. You have the power to see what you remember. More importantly,
4484 perhaps, you also have the power to find what you don't remember and
4485 what others might prefer you forget.<a href="#ftn.idp8380448" class="footnote" name="idp8380448"><sup class="footnote">[115]</sup></a>
4486 </p><a class="indexterm" name="idp8383792"></a><p>
4487 <span class="strong"><strong>We take it</strong></span> for granted that we can
4488 go back to see what we remember reading. Think about newspapers. If
4489 you wanted to study the reaction of your hometown newspaper to the
4490 race riots in Watts in 1965, or to Bull Connor's water cannon in 1963,
4491 you could go to your public library and look at the newspapers. Those
4492 papers probably exist on microfiche. If you're lucky, they exist in
4493 paper, too. Either way, you are free, using a library, to go back and
4494 remember&#8212;not just what it is convenient to remember, but
4495 remember something close to the truth.
4496 </p><p>
4497 It is said that those who fail to remember history are doomed to
4498 repeat it. That's not quite correct. We <span class="emphasis"><em>all</em></span>
4499 forget history. The key is whether we have a way to go back to
4500 rediscover what we forget. More directly, the key is whether an
4501 objective past can keep us honest. Libraries help do that, by
4502 collecting content and keeping it, for schoolchildren, for
4503 researchers, for grandma. A free society presumes this knowedge.
4504 </p><p>
4505 The Internet was an exception to this presumption. Until the Internet
4506 Archive, there was no way to go back. The Internet was the
4507 quintessentially transitory medium. And yet, as it becomes more
4508 important in forming and reforming society, it becomes more and more
4509
4510 important to maintain in some historical form. It's just bizarre to
4511 think that we have scads of archives of newspapers from tiny towns
4512 around the world, yet there is but one copy of the Internet&#8212;the
4513 one kept by the Internet Archive.
4514 </p><p>
4515 Brewster Kahle is the founder of the Internet Archive. He was a very
4516 successful Internet entrepreneur after he was a successful computer
4517 researcher.  In the 1990s, Kahle decided he had had enough business
4518 success.  It was time to become a different kind of success. So he
4519 launched a series of projects designed to archive human knowledge. The
4520 Internet Archive was just the first of the projects of this Andrew
4521 Carnegie of the Internet. By December of 2002, the archive had over 10
4522 billion pages, and it was growing at about a billion pages a month.
4523 </p><a class="indexterm" name="idp8389952"></a><a class="indexterm" name="idp8390704"></a><a class="indexterm" name="idp8391456"></a><a class="indexterm" name="idp8392272"></a><a class="indexterm" name="idp8393088"></a><a class="indexterm" name="idxnewscoverage2"></a><p>
4524 The Way Back Machine is the largest archive of human knowledge in
4525 human history. At the end of 2002, it held <span class="quote">«<span class="quote">two hundred and thirty
4526 terabytes of material</span>»</span>&#8212;and was <span class="quote">«<span class="quote">ten times larger than the
4527 Library of Congress.</span>»</span> And this was just the first of the archives that
4528 Kahle set out to build. In addition to the Internet Archive, Kahle has
4529 been constructing the Television Archive. Television, it turns out, is
4530 even more ephemeral than the Internet. While much of twentieth-century
4531 culture was constructed through television, only a tiny proportion of
4532 that culture is available for anyone to see today. Three hours of news
4533 are recorded each evening by Vanderbilt University&#8212;thanks to a
4534 specific exemption in the copyright law. That content is indexed, and
4535 is available to scholars for a very low fee. <span class="quote">«<span class="quote">But other than that,
4536 [television] is almost unavailable,</span>»</span> Kahle told me. <span class="quote">«<span class="quote">If you were
4537 Barbara Walters you could get access to [the archives], but if you are
4538 just a graduate student?</span>»</span> As Kahle put it,
4539 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idp8399008"></a><a class="indexterm" name="idp8399792"></a><p>
4540 Do you remember when Dan Quayle was interacting with Murphy Brown?
4541 Remember that back and forth surreal experience of a politician
4542 interacting with a fictional television character? If you were a
4543 graduate student wanting to study that, and you wanted to get those
4544 original back and forth exchanges between the two, the
4545
4546
4547 <em class="citetitle">60 Minutes</em> episode that came out after it &#8230; it would be almost
4548 impossible. &#8230; Those materials are almost unfindable. &#8230;
4549 </p></blockquote></div><a class="indexterm" name="idp8402368"></a><p>
4550 Why is that? Why is it that the part of our culture that is recorded
4551 in newspapers remains perpetually accessible, while the part that is
4552 recorded on videotape is not? How is it that we've created a world
4553 where researchers trying to understand the effect of media on
4554 nineteenthcentury America will have an easier time than researchers
4555 trying to understand the effect of media on twentieth-century America?
4556 </p><p>
4557 In part, this is because of the law. Early in American copyright law,
4558 copyright owners were required to deposit copies of their work in
4559 libraries.  These copies were intended both to facilitate the spread
4560 of knowledge and to assure that a copy of the work would be around
4561 once the copyright expired, so that others might access and copy the
4562 work.
4563 </p><a class="indexterm" name="idp8404992"></a><a class="indexterm" name="idp8405808"></a><p>
4564 These rules applied to film as well. But in 1915, the Library
4565 of Congress made an exception for film. Film could be copyrighted so
4566 long as such deposits were made. But the filmmaker was then allowed to
4567 borrow back the deposits&#8212;for an unlimited time at no cost. In
4568 1915 alone, there were more than 5,475 films deposited and <span class="quote">«<span class="quote">borrowed
4569 back.</span>»</span>  Thus, when the copyrights to films expire, there is no copy
4570 held by any library. The copy exists&#8212;if it exists at
4571 all&#8212;in the library archive of the film company.<a href="#ftn.idp8408032" class="footnote" name="idp8408032"><sup class="footnote">[116]</sup></a>
4572 </p><p>
4573 The same is generally true about television. Television broadcasts
4574 were originally not copyrighted&#8212;there was no way to capture the
4575 broadcasts, so there was no fear of <span class="quote">«<span class="quote">theft.</span>»</span> But as technology enabled
4576 capturing, broadcasters relied increasingly upon the law. The law
4577 required they make a copy of each broadcast for the work to be
4578 <span class="quote">«<span class="quote">copyrighted.</span>»</span>  But those copies were simply kept by the
4579 broadcasters. No library had any right to them; the government didn't
4580 demand them.  The content of this part of American culture is
4581 practically invisible to anyone who would look.
4582 </p><a class="indexterm" name="idp8412528"></a><p>
4583 Kahle was eager to correct this. Before September 11, 2001, he and
4584
4585 his allies had started capturing television. They selected twenty
4586 stations from around the world and hit the Record button. After
4587 September 11, Kahle, working with dozens of others, selected twenty
4588 stations from around the world and, beginning October 11, 2001, made
4589 their coverage during the week of September 11 available free on-line.
4590 Anyone could see how news reports from around the world covered the
4591 events of that day.
4592 </p><a class="indexterm" name="idp8414496"></a><a class="indexterm" name="idp8415280"></a><a class="indexterm" name="idp8416384"></a><a class="indexterm" name="idp8417584"></a><a class="indexterm" name="idp8418688"></a><a class="indexterm" name="idp8419504"></a><a class="indexterm" name="idp8420320"></a><a class="indexterm" name="idp8421136"></a><p>
4593 Kahle had the same idea with film. Working with Rick Prelinger, whose
4594 archive of film includes close to 45,000 <span class="quote">«<span class="quote">ephemeral films</span>»</span> (meaning
4595 films other than Hollywood movies, films that were never copyrighted),
4596 Kahle established the Movie Archive. Prelinger let Kahle digitize
4597 1,300 films in this archive and post those films on the Internet to be
4598 downloaded for free. Prelinger's is a for-profit company. It sells
4599 copies of these films as stock footage. What he has discovered is that
4600 after he made a significant chunk available for free, his stock
4601 footage sales went up dramatically. People could easily find the
4602 material they wanted to use. Some downloaded that material and made
4603 films on their own. Others purchased copies to enable other films to
4604 be made.  Either way, the archive enabled access to this important
4605 part of our culture.  Want to see a copy of the <span class="quote">«<span class="quote">Duck and Cover</span>»</span> film
4606 that instructed children how to save themselves in the middle of
4607 nuclear attack? Go to archive.org, and you can download the film in a
4608 few minutes&#8212;for free.
4609 </p><p>
4610 Here again, Kahle is providing access to a part of our culture that we
4611 otherwise could not get easily, if at all. It is yet another part of
4612 what defines the twentieth century that we have lost to history. The
4613 law doesn't require these copies to be kept by anyone, or to be
4614 deposited in an archive by anyone. Therefore, there is no simple way
4615 to find them.
4616 </p><p>
4617 The key here is access, not price. Kahle wants to enable free access
4618 to this content, but he also wants to enable others to sell access to
4619 it. His aim is to ensure competition in access to this important part
4620 of our culture.  Not during the commercial life of a bit of creative
4621 property, but during a second life that all creative property
4622 has&#8212;a noncommercial life.
4623 </p><p>
4624 For here is an idea that we should more clearly recognize. Every bit
4625 of creative property goes through different <span class="quote">«<span class="quote">lives.</span>»</span> In its first
4626 life, if the
4627
4628
4629 creator is lucky, the content is sold. In such cases the commercial
4630 market is successful for the creator. The vast majority of creative
4631 property doesn't enjoy such success, but some clearly does. For that
4632 content, commercial life is extremely important. Without this
4633 commercial market, there would be, many argue, much less creativity.
4634 </p><p>
4635 After the commercial life of creative property has ended, our
4636 tradition has always supported a second life as well. A newspaper
4637 delivers the news every day to the doorsteps of America. The very next
4638 day, it is used to wrap fish or to fill boxes with fragile gifts or to
4639 build an archive of knowledge about our history. In this second life,
4640 the content can continue to inform even if that information is no
4641 longer sold.
4642 </p><a class="indexterm" name="idp8428208"></a><p>
4643 The same has always been true about books. A book goes out of print
4644 very quickly (the average today is after about a year<a href="#ftn.idp8429680" class="footnote" name="idp8429680"><sup class="footnote">[117]</sup></a>). After
4645 it is out of print, it can be sold in used book stores without the
4646 copyright owner getting anything and stored in libraries, where many
4647 get to read the book, also for free. Used book stores and libraries
4648 are thus the second life of a book. That second life is extremely
4649 important to the spread and stability of culture.
4650 </p><p>
4651 Yet increasingly, any assumption about a stable second life for
4652 creative property does not hold true with the most important
4653 components of popular culture in the twentieth and twenty-first
4654 centuries. For these&#8212;television, movies, music, radio, the
4655 Internet&#8212;there is no guarantee of a second life. For these sorts
4656 of culture, it is as if we've replaced libraries with Barnes &amp;
4657 Noble superstores. With this culture, what's accessible is nothing but
4658 what a certain limited market demands.  Beyond that, culture
4659 disappears.
4660 </p><p>
4661 <span class="strong"><strong>For most of</strong></span> the twentieth century,
4662 it was economics that made this so. It would have been insanely
4663 expensive to collect and make accessible all television and film and
4664 music: The cost of analog copies is extraordinarily high. So even
4665 though the law in principle would have restricted the ability of a
4666 Brewster Kahle to copy culture generally, the
4667
4668 real restriction was economics. The market made it impossibly
4669 difficult to do anything about this ephemeral culture; the law had
4670 little practical effect.
4671 </p><p>
4672 Perhaps the single most important feature of the digital revolution is
4673 that for the first time since the Library of Alexandria, it is
4674 feasible to imagine constructing archives that hold all culture
4675 produced or distributed publicly. Technology makes it possible to
4676 imagine an archive of all books published, and increasingly makes it
4677 possible to imagine an archive of all moving images and sound.
4678 </p><p>
4679 The scale of this potential archive is something we've never imagined
4680 before. The Brewster Kahles of our history have dreamed about it; but
4681 we are for the first time at a point where that dream is possible. As
4682 Kahle describes,
4683 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idp8438896"></a><p>
4684 It looks like there's about two to three million recordings of music.
4685 Ever. There are about a hundred thousand theatrical releases of
4686 movies, &#8230; and about one to two million movies [distributed] during
4687 the twentieth century. There are about twenty-six million different
4688 titles of books. All of these would fit on computers that would fit in
4689 this room and be able to be afforded by a small company.  So we're at
4690 a turning point in our history. Universal access is the goal. And the
4691 opportunity of leading a different life, based on this, is
4692 &#8230; thrilling. It could be one of the things humankind would be most
4693 proud of. Up there with the Library of Alexandria, putting a man on
4694 the moon, and the invention of the printing press.
4695 </p></blockquote></div><a class="indexterm" name="idp8441296"></a><p>
4696 Kahle is not the only librarian. The Internet Archive is not the only
4697 archive. But Kahle and the Internet Archive suggest what the future of
4698 libraries or archives could be. <span class="emphasis"><em>When</em></span> the
4699 commercial life of creative property ends, I don't know. But it
4700 does. And whenever it does, Kahle and his archive hint at a world
4701 where this knowledge, and culture, remains perpetually available. Some
4702 will draw upon it to understand it;
4703
4704 some to criticize it. Some will use it, as Walt Disney did, to
4705 re-create the past for the future. These technologies promise
4706 something that had become unimaginable for much of our past&#8212;a
4707 future <span class="emphasis"><em>for</em></span> our past. The technology of digital
4708 arts could make the dream of the Library of Alexandria real again.
4709 </p><p>
4710 Technologists have thus removed the economic costs of building such an
4711 archive. But lawyers' costs remain. For as much as we might like to
4712 call these <span class="quote">«<span class="quote">archives,</span>»</span> as warm as the idea of a <span class="quote">«<span class="quote">library</span>»</span> might seem,
4713 the <span class="quote">«<span class="quote">content</span>»</span> that is collected in these digital spaces is also
4714 someone's <span class="quote">«<span class="quote">property.</span>»</span> And the law of property restricts the freedoms
4715 that Kahle and others would exercise.
4716 </p><a class="indexterm" name="idp8446816"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8380448" class="footnote"><p><a href="#idp8380448" class="para"><sup class="para">[115] </sup></a>
4717
4718 <a class="indexterm" name="idp8381088"></a>
4719 <a class="indexterm" name="idp8381840"></a>
4720 The temptations remain, however. Brewster Kahle reports that the White
4721 House changes its own press releases without notice. A May 13, 2003,
4722 press release stated, <span class="quote">«<span class="quote">Combat Operations in Iraq Have Ended.</span>»</span> That was
4723 later changed, without notice, to <span class="quote">«<span class="quote">Major Combat Operations in Iraq
4724 Have Ended.</span>»</span>  E-mail from Brewster Kahle, 1 December 2003.
4725 </p></div><div id="ftn.idp8408032" class="footnote"><p><a href="#idp8408032" class="para"><sup class="para">[116] </sup></a>
4726
4727 Doug Herrick, <span class="quote">«<span class="quote">Toward a National Film Collection: Motion Pictures at
4728 the Library of Congress,</span>»</span> <em class="citetitle">Film Library Quarterly</em> 13 nos. 2&#8211;3
4729 (1980): 5; Anthony Slide, <em class="citetitle">Nitrate Won't Wait: A History of Film
4730 Preservation in the United States</em> (Jefferson, N.C.: McFarland &amp;
4731 Co., 1992), 36.
4732 </p></div><div id="ftn.idp8429680" class="footnote"><p><a href="#idp8429680" class="para"><sup class="para">[117] </sup></a>
4733
4734 <a class="indexterm" name="idp8430416"></a>
4735 Dave Barns, <span class="quote">«<span class="quote">Fledgling Career in Antique Books: Woodstock Landlord,
4736 Bar Owner Starts a New Chapter by Adopting Business,</span>»</span> <em class="citetitle">Chicago Tribune</em>,
4737 5 September 1997, at Metro Lake 1L. Of books published between 1927
4738 and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese,
4739 <span class="quote">«<span class="quote">The First Sale Doctrine in the Era of Digital Networks,</span>»</span> <em class="citetitle">Boston
4740 College Law Review</em> 44 (2003): 593 n. 51.
4741 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="property-i"></a>Chapter 10. Chapter Ten: <span class="quote">«<span class="quote">Property</span>»</span></h2></div></div></div><a class="indexterm" name="idp8450192"></a><a class="indexterm" name="idp8451008"></a><p>
4742 <span class="strong"><strong>Jack Valenti</strong></span> has been the president
4743 of the Motion Picture Association of America since 1966. He first came
4744 to Washington, D.C., with Lyndon Johnson's
4745 administration&#8212;literally. The famous picture of Johnson's
4746 swearing-in on Air Force One after the assassination of President
4747 Kennedy has Valenti in the background. In his almost forty years of
4748 running the MPAA, Valenti has established himself as perhaps the most
4749 prominent and effective lobbyist in Washington.
4750 </p><a class="indexterm" name="idp8452768"></a><a class="indexterm" name="idp8454192"></a><a class="indexterm" name="idp8455024"></a><a class="indexterm" name="idp8455856"></a><a class="indexterm" name="idp8456672"></a><a class="indexterm" name="idp8457488"></a><a class="indexterm" name="idp8458304"></a><p>
4751 The MPAA is the American branch of the international Motion Picture
4752 Association. It was formed in 1922 as a trade association whose goal
4753 was to defend American movies against increasing domestic criticism.
4754 The organization now represents not only filmmakers but producers and
4755 distributors of entertainment for television, video, and cable. Its
4756 board is made up of the chairmen and presidents of the seven major
4757 producers and distributors of motion picture and television programs
4758 in the United States: Walt Disney, Sony Pictures Entertainment, MGM,
4759 Paramount Pictures, Twentieth Century Fox, Universal Studios, and
4760 Warner Brothers.
4761 </p><p>
4762
4763 Valenti is only the third president of the MPAA. No president before
4764 him has had as much influence over that organization, or over
4765 Washington. As a Texan, Valenti has mastered the single most important
4766 political skill of a Southerner&#8212;the ability to appear simple and
4767 slow while hiding a lightning-fast intellect. To this day, Valenti
4768 plays the simple, humble man. But this Harvard MBA, and author of four
4769 books, who finished high school at the age of fifteen and flew more
4770 than fifty combat missions in World War II, is no Mr. Smith. When
4771 Valenti went to Washington, he mastered the city in a quintessentially
4772 Washingtonian way.
4773 </p><p>
4774 In defending artistic liberty and the freedom of speech that our
4775 culture depends upon, the MPAA has done important good. In crafting
4776 the MPAA rating system, it has probably avoided a great deal of
4777 speech-regulating harm. But there is an aspect to the organization's
4778 mission that is both the most radical and the most important. This is
4779 the organization's effort, epitomized in Valenti's every act, to
4780 redefine the meaning of <span class="quote">«<span class="quote">creative property.</span>»</span>
4781 </p><p>
4782 In 1982, Valenti's testimony to Congress captured the strategy
4783 perfectly:
4784 </p><div class="blockquote"><blockquote class="blockquote"><p>
4785 No matter the lengthy arguments made, no matter the charges and the
4786 counter-charges, no matter the tumult and the shouting, reasonable men
4787 and women will keep returning to the fundamental issue, the central
4788 theme which animates this entire debate: <span class="emphasis"><em>Creative property
4789 owners must be accorded the same rights and protection resident in all
4790 other property owners in the nation</em></span>. That is the issue.
4791 That is the question. And that is the rostrum on which this entire
4792 hearing and the debates to follow must rest.<a href="#ftn.idp8464704" class="footnote" name="idp8464704"><sup class="footnote">[118]</sup></a>
4793 </p></blockquote></div><p>
4794 The strategy of this rhetoric, like the strategy of most of Valenti's
4795 rhetoric, is brilliant and simple and brilliant because simple. The
4796 <span class="quote">«<span class="quote">central theme</span>»</span> to which <span class="quote">«<span class="quote">reasonable men and women</span>»</span> will return is
4797 this:
4798
4799 <span class="quote">«<span class="quote">Creative property owners must be accorded the same rights and
4800 protections resident in all other property owners in the nation.</span>»</span>
4801 There are no second-class citizens, Valenti might have
4802 continued. There should be no second-class property owners.
4803 </p><p>
4804 This claim has an obvious and powerful intuitive pull. It is stated
4805 with such clarity as to make the idea as obvious as the notion that we
4806 use elections to pick presidents. But in fact, there is no more
4807 extreme a claim made by <span class="emphasis"><em>anyone</em></span> who is serious in
4808 this debate than this claim of Valenti's. Jack Valenti, however sweet
4809 and however brilliant, is perhaps the nation's foremost extremist when
4810 it comes to the nature and scope of <span class="quote">«<span class="quote">creative property.</span>»</span> His views
4811 have <span class="emphasis"><em>no</em></span> reasonable connection to our actual legal
4812 tradition, even if the subtle pull of his Texan charm has slowly
4813 redefined that tradition, at least in Washington.
4814 </p><p>
4815 While <span class="quote">«<span class="quote">creative property</span>»</span> is certainly <span class="quote">«<span class="quote">property</span>»</span> in a nerdy and
4816 precise sense that lawyers are trained to understand,<a href="#ftn.idp8472032" class="footnote" name="idp8472032"><sup class="footnote">[119]</sup></a> it has never been the case, nor should it be, that
4817 <span class="quote">«<span class="quote">creative property owners</span>»</span> have been <span class="quote">«<span class="quote">accorded the same rights and
4818 protection resident in all other property owners.</span>»</span> Indeed, if creative
4819 property owners were given the same rights as all other property
4820 owners, that would effect a radical, and radically undesirable, change
4821 in our tradition.
4822 </p><p>
4823 Valenti knows this. But he speaks for an industry that cares squat for
4824 our tradition and the values it represents. He speaks for an industry
4825 that is instead fighting to restore the tradition that the British
4826 overturned in 1710. In the world that Valenti's changes would create,
4827 a powerful few would exercise powerful control over how our creative
4828 culture would develop.
4829 </p><p>
4830 I have two purposes in this chapter. The first is to convince you
4831 that, historically, Valenti's claim is absolutely wrong. The second is
4832 to convince you that it would be terribly wrong for us to reject our
4833 history.  We have always treated rights in creative property
4834 differently from the rights resident in all other property
4835 owners. They have never been the same. And they should never be the
4836 same, because, however counterintuitive this may seem, to make them
4837 the same would be to
4838
4839
4840 fundamentally weaken the opportunity for new creators to create.
4841 Creativity depends upon the owners of creativity having less than
4842 perfect control.
4843 </p><p>
4844 Organizations such as the MPAA, whose board includes the most powerful
4845 of the old guard, have little interest, their rhetoric
4846 notwithstanding, in assuring that the new can displace them. No
4847 organization does. No person does. (Ask me about tenure, for example.)
4848 But what's good for the MPAA is not necessarily good for America. A
4849 society that defends the ideals of free culture must preserve
4850 precisely the opportunity for new creativity to threaten the old.
4851 </p><p>
4852 <span class="strong"><strong>To get</strong></span> just a hint that there is
4853 something fundamentally wrong in Valenti's argument, we need look no
4854 further than the United States Constitution itself.
4855 </p><p>
4856 The framers of our Constitution loved <span class="quote">«<span class="quote">property.</span>»</span> Indeed, so strongly
4857 did they love property that they built into the Constitution an
4858 important requirement. If the government takes your property&#8212;if
4859 it condemns your house, or acquires a slice of land from your
4860 farm&#8212;it is required, under the Fifth Amendment's <span class="quote">«<span class="quote">Takings
4861 Clause,</span>»</span> to pay you <span class="quote">«<span class="quote">just compensation</span>»</span> for that taking. The
4862 Constitution thus guarantees that property is, in a certain sense,
4863 sacred. It cannot <span class="emphasis"><em>ever</em></span> be taken from the property
4864 owner unless the government pays for the privilege.
4865 </p><p>
4866 Yet the very same Constitution speaks very differently about what
4867 Valenti calls <span class="quote">«<span class="quote">creative property.</span>»</span> In the clause granting Congress the
4868 power to create <span class="quote">«<span class="quote">creative property,</span>»</span> the Constitution
4869 <span class="emphasis"><em>requires</em></span> that after a <span class="quote">«<span class="quote">limited time,</span>»</span> Congress
4870 take back the rights that it has granted and set the <span class="quote">«<span class="quote">creative
4871 property</span>»</span> free to the public domain. Yet when Congress does this, when
4872 the expiration of a copyright term <span class="quote">«<span class="quote">takes</span>»</span> your copyright and turns it
4873 over to the public domain, Congress does not have any obligation to
4874 pay <span class="quote">«<span class="quote">just compensation</span>»</span> for this <span class="quote">«<span class="quote">taking.</span>»</span>  Instead, the same
4875 Constitution that requires compensation for your land
4876
4877 requires that you lose your <span class="quote">«<span class="quote">creative property</span>»</span> right without any
4878 compensation at all.
4879 </p><p>
4880 The Constitution thus on its face states that these two forms of
4881 property are not to be accorded the same rights. They are plainly to
4882 be treated differently. Valenti is therefore not just asking for a
4883 change in our tradition when he argues that creative-property owners
4884 should be accorded the same rights as every other property-right
4885 owner. He is effectively arguing for a change in our Constitution
4886 itself.
4887 </p><a class="indexterm" name="idxjeffersonthomas"></a><p>
4888 Arguing for a change in our Constitution is not necessarily wrong.
4889 There was much in our original Constitution that was plainly wrong.
4890 The Constitution of 1789 entrenched slavery; it left senators to be
4891 appointed rather than elected; it made it possible for the electoral
4892 college to produce a tie between the president and his own vice
4893 president (as it did in 1800). The framers were no doubt
4894 extraordinary, but I would be the first to admit that they made big
4895 mistakes. We have since rejected some of those mistakes; no doubt
4896 there could be others that we should reject as well. So my argument is
4897 not simply that because Jefferson did it, we should, too.
4898 </p><p>
4899 Instead, my argument is that because Jefferson did it, we should at
4900 least try to understand <span class="emphasis"><em>why</em></span>. Why did the framers,
4901 fanatical property types that they were, reject the claim that
4902 creative property be given the same rights as all other property? Why
4903 did they require that for creative property there must be a public
4904 domain?
4905 </p><a class="indexterm" name="idp8493280"></a><p>
4906 To answer this question, we need to get some perspective on the
4907 history of these <span class="quote">«<span class="quote">creative property</span>»</span> rights, and the control that they
4908 enabled.  Once we see clearly how differently these rights have been
4909 defined, we will be in a better position to ask the question that
4910 should be at the core of this war: Not <span class="emphasis"><em>whether</em></span>
4911 creative property should be protected, but how. Not
4912 <span class="emphasis"><em>whether</em></span> we will enforce the rights the law gives
4913 to creative-property owners, but what the particular mix of rights
4914 ought to be. Not <span class="emphasis"><em>whether</em></span> artists should be paid,
4915 but whether institutions designed to assure that artists get paid need
4916 also control how culture develops.
4917 </p><a class="indexterm" name="idxfreeculturefourmodalitiesofconstrainton"></a><a class="indexterm" name="idxregulationfourmodalitiesof"></a><a class="indexterm" name="idxcopyrightlawasexpostregulationmodality"></a><a class="indexterm" name="idxlawasconstraintmodality"></a><p>
4918
4919
4920 To answer these questions, we need a more general way to talk about
4921 how property is protected. More precisely, we need a more general way
4922 than the narrow language of the law allows. In <em class="citetitle">Code and Other Laws of
4923 Cyberspace</em>, I used a simple model to capture this more general
4924 perspective. For any particular right or regulation, this model asks
4925 how four different modalities of regulation interact to support or
4926 weaken the right or regulation. I represented it with this diagram:
4927 </p><div class="figure"><a name="fig-1331"></a><p class="title"><b>Figure 10.1. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1331.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8508800"></a><p>
4928 At the center of this picture is a regulated dot: the individual or
4929 group that is the target of regulation, or the holder of a right. (In
4930 each case throughout, we can describe this either as regulation or as
4931 a right.  For simplicity's sake, I will speak only of regulations.)
4932 The ovals represent four ways in which the individual or group might
4933 be regulated&#8212; either constrained or, alternatively, enabled. Law
4934 is the most obvious constraint (to lawyers, at least). It constrains
4935 by threatening punishments after the fact if the rules set in advance
4936 are violated. So if, for example, you willfully infringe Madonna's
4937 copyright by copying a song from her latest CD and posting it on the
4938 Web, you can be punished
4939
4940 with a $150,000 fine. The fine is an ex post punishment for violating
4941 an ex ante rule. It is imposed by the state.
4942 <a class="indexterm" name="idp8511136"></a>
4943 </p><a class="indexterm" name="idp8512016"></a><p>
4944 Norms are a different kind of constraint. They, too, punish an
4945 individual for violating a rule. But the punishment of a norm is
4946 imposed by a community, not (or not only) by the state. There may be
4947 no law against spitting, but that doesn't mean you won't be punished
4948 if you spit on the ground while standing in line at a movie. The
4949 punishment might not be harsh, though depending upon the community, it
4950 could easily be more harsh than many of the punishments imposed by the
4951 state. The mark of the difference is not the severity of the rule, but
4952 the source of the enforcement.
4953 </p><a class="indexterm" name="idxmarketconstraints"></a><p>
4954 The market is a third type of constraint. Its constraint is effected
4955 through conditions: You can do X if you pay Y; you'll be paid M if you
4956 do N. These constraints are obviously not independent of law or
4957 norms&#8212;it is property law that defines what must be bought if it
4958 is to be taken legally; it is norms that say what is appropriately
4959 sold. But given a set of norms, and a background of property and
4960 contract law, the market imposes a simultaneous constraint upon how an
4961 individual or group might behave.
4962 </p><a class="indexterm" name="idp8515568"></a><p>
4963 Finally, and for the moment, perhaps, most mysteriously,
4964 <span class="quote">«<span class="quote">architecture</span>»</span>&#8212;the physical world as one finds it&#8212;is a
4965 constraint on behavior.  A fallen bridge might constrain your ability
4966 to get across a river. Railroad tracks might constrain the ability of
4967 a community to integrate its social life. As with the market,
4968 architecture does not effect its constraint through ex post
4969 punishments. Instead, also as with the market, architecture effects
4970 its constraint through simultaneous conditions. These conditions are
4971 imposed not by courts enforcing contracts, or by police punishing
4972 theft, but by nature, by <span class="quote">«<span class="quote">architecture.</span>»</span>  If a 500-pound boulder
4973 blocks your way, it is the law of gravity that enforces this
4974 constraint. If a $500 airplane ticket stands between you and a flight
4975 to New York, it is the market that enforces this constraint.
4976 </p><a class="indexterm" name="idp8519200"></a><a class="indexterm" name="idp8520528"></a><a class="indexterm" name="idp8521856"></a><a class="indexterm" name="idxlawasconstraintmodality2"></a><p>
4977
4978
4979 So the first point about these four modalities of regulation is
4980 obvious: They interact. Restrictions imposed by one might be
4981 reinforced by another. Or restrictions imposed by one might be
4982 undermined by another.
4983 </p><p>
4984 The second point follows directly: If we want to understand the
4985 effective freedom that anyone has at a given moment to do any
4986 particular thing, we have to consider how these four modalities
4987 interact.  Whether or not there are other constraints (there may well
4988 be; my claim is not about comprehensiveness), these four are among the
4989 most significant, and any regulator (whether controlling or freeing)
4990 must consider how these four in particular interact.
4991 </p><a class="indexterm" name="idp8526768"></a><a class="indexterm" name="idp8527584"></a><a class="indexterm" name="idp8528400"></a><a class="indexterm" name="idxdrivingspeedconstraintson"></a><a class="indexterm" name="idxspeedingconstraintson"></a><p>
4992 So, for example, consider the <span class="quote">«<span class="quote">freedom</span>»</span> to drive a car at a high
4993 speed. That freedom is in part restricted by laws: speed limits that
4994 say how fast you can drive in particular places at particular
4995 times. It is in part restricted by architecture: speed bumps, for
4996 example, slow most rational drivers; governors in buses, as another
4997 example, set the maximum rate at which the driver can drive. The
4998 freedom is in part restricted by the market: Fuel efficiency drops as
4999 speed increases, thus the price of gasoline indirectly constrains
5000 speed. And finally, the norms of a community may or may not constrain
5001 the freedom to speed. Drive at 50 mph by a school in your own
5002 neighborhood and you're likely to be punished by the neighbors. The
5003 same norm wouldn't be as effective in a different town, or at night.
5004 </p><p>
5005 The final point about this simple model should also be fairly clear:
5006 While these four modalities are analytically independent, law has a
5007 special role in affecting the three.<a href="#ftn.idp8534448" class="footnote" name="idp8534448"><sup class="footnote">[120]</sup></a>
5008 The law, in other words, sometimes operates to increase or decrease
5009 the constraint of a particular modality.  Thus, the law might be used
5010 to increase taxes on gasoline, so as to increase the incentives to
5011 drive more slowly. The law might be used to mandate more speed bumps,
5012 so as to increase the difficulty of driving rapidly. The law might be
5013 used to fund ads that stigmatize reckless driving. Or the law might be
5014 used to require that other laws be more
5015
5016 strict&#8212;a federal requirement that states decrease the speed
5017 limit, for example&#8212;so as to decrease the attractiveness of fast
5018 driving.
5019 </p><a class="indexterm" name="idp8538144"></a><a class="indexterm" name="idp8539472"></a><div class="figure"><a name="fig-1361"></a><p class="title"><b>Figure 10.2. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1361.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8543072"></a><p>
5020 These constraints can thus change, and they can be changed. To
5021 understand the effective protection of liberty or protection of
5022 property at any particular moment, we must track these changes over
5023 time. A restriction imposed by one modality might be erased by
5024 another. A freedom enabled by one modality might be displaced by
5025 another.<a href="#ftn.idp8544528" class="footnote" name="idp8544528"><sup class="footnote">[121]</sup></a>
5026 </p><a class="indexterm" name="idp8553328"></a><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="hollywood"></a>10.1. Why Hollywood Is Right</h2></div></div></div><a class="indexterm" name="idxcopyrightfourregulatorymodalitieson"></a><p>
5027 The most obvious point that this model reveals is just why, or just
5028 how, Hollywood is right. The copyright warriors have rallied Congress
5029 and the courts to defend copyright. This model helps us see why that
5030 rallying makes sense.
5031 </p><p>
5032 Let's say this is the picture of copyright's regulation before the
5033 Internet:
5034 </p><div class="figure"><a name="fig-1371"></a><p class="title"><b>Figure 10.3. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1331.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idxarchitectureconstrainteffectedthrough"></a><a class="indexterm" name="idp8562784"></a><a class="indexterm" name="idxnormsregulatoryinfluenceof2"></a><p>
5035
5036 There is balance between law, norms, market, and architecture. The law
5037 limits the ability to copy and share content, by imposing penalties on
5038 those who copy and share content. Those penalties are reinforced by
5039 technologies that make it hard to copy and share content
5040 (architecture) and expensive to copy and share content
5041 (market). Finally, those penalties are mitigated by norms we all
5042 recognize&#8212;kids, for example, taping other kids' records. These
5043 uses of copyrighted material may well be infringement, but the norms
5044 of our society (before the Internet, at least) had no problem with
5045 this form of infringement.
5046 </p><a class="indexterm" name="idxinternetcopyrightregulatorybalancelostwith"></a><a class="indexterm" name="idp8568688"></a><a class="indexterm" name="idp8569824"></a><a class="indexterm" name="idp8570640"></a><p>
5047 Enter the Internet, or, more precisely, technologies such as MP3s and
5048 p2p sharing. Now the constraint of architecture changes dramatically,
5049 as does the constraint of the market. And as both the market and
5050 architecture relax the regulation of copyright, norms pile on. The
5051 happy balance (for the warriors, at least) of life before the Internet
5052 becomes an effective state of anarchy after the Internet.
5053 </p><a class="indexterm" name="idp8572256"></a><a class="indexterm" name="idp8573568"></a><a class="indexterm" name="idp8574896"></a><p>
5054 Thus the sense of, and justification for, the warriors' response.
5055 Technology has changed, the warriors say, and the effect of this
5056 change, when ramified through the market and norms, is that a balance
5057 of protection for the copyright owners' rights has been lost. This is
5058 Iraq
5059
5060 after the fall of Saddam, but this time no government is justifying the
5061 looting that results.
5062 </p><div class="figure"><a name="fig-1381"></a><p class="title"><b>Figure 10.4. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1381.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8579424"></a><a class="indexterm" name="idxregulationasestablishmentprotectionism"></a><p>
5063 Neither this analysis nor the conclusions that follow are new to the
5064 warriors. Indeed, in a <span class="quote">«<span class="quote">White Paper</span>»</span> prepared by the Commerce
5065 Department (one heavily influenced by the copyright warriors) in 1995,
5066 this mix of regulatory modalities had already been identified and the
5067 strategy to respond already mapped. In response to the changes the
5068 Internet had effected, the White Paper argued (1) Congress should
5069 strengthen intellectual property law, (2) businesses should adopt
5070 innovative marketing techniques, (3) technologists should push to
5071 develop code to protect copyrighted material, and (4) educators should
5072 educate kids to better protect copyright.
5073 </p><a class="indexterm" name="idp8583632"></a><a class="indexterm" name="idp8584944"></a><a class="indexterm" name="idp8586272"></a><a class="indexterm" name="idp8587088"></a><p>
5074 This mixed strategy is just what copyright needed&#8212;if it was to
5075 preserve the particular balance that existed before the change induced
5076 by the Internet. And it's just what we should expect the content
5077 industry to push for. It is as American as apple pie to consider the
5078 happy life you have as an entitlement, and to look to the law to
5079 protect it if something comes along to change that happy
5080 life. Homeowners living in a
5081
5082
5083 flood plain have no hesitation appealing to the government to rebuild
5084 (and rebuild again) when a flood (architecture) wipes away their
5085 property (law). Farmers have no hesitation appealing to the government
5086 to bail them out when a virus (architecture) devastates their
5087 crop. Unions have no hesitation appealing to the government to bail
5088 them out when imports (market) wipe out the U.S. steel industry.
5089 </p><a class="indexterm" name="idp8589456"></a><a class="indexterm" name="idp8590704"></a><a class="indexterm" name="idp8591968"></a><p>
5090 Thus, there's nothing wrong or surprising in the content industry's
5091 campaign to protect itself from the harmful consequences of a
5092 technological innovation. And I would be the last person to argue that
5093 the changing technology of the Internet has not had a profound effect
5094 on the content industry's way of doing business, or as John Seely
5095 Brown describes it, its <span class="quote">«<span class="quote">architecture of revenue.</span>»</span>
5096 </p><a class="indexterm" name="idp8593984"></a><a class="indexterm" name="idp8594800"></a><a class="indexterm" name="idp8595904"></a><a class="indexterm" name="idp8596720"></a><a class="indexterm" name="idp8597536"></a><a class="indexterm" name="idp8598352"></a><a class="indexterm" name="idp8599168"></a><a class="indexterm" name="idp8599984"></a><p>
5097 But just because a particular interest asks for government support, it
5098 doesn't follow that support should be granted. And just because
5099 technology has weakened a particular way of doing business, it doesn't
5100 follow that the government should intervene to support that old way of
5101 doing business. Kodak, for example, has lost perhaps as much as 20
5102 percent of their traditional film market to the emerging technologies
5103 of digital cameras.<a href="#ftn.idp8601504" class="footnote" name="idp8601504"><sup class="footnote">[122]</sup></a>
5104
5105 Does anyone believe the government should ban digital cameras just to
5106 support Kodak? Highways have weakened the freight business for
5107 railroads. Does anyone think we should ban trucks from roads
5108 <span class="emphasis"><em>for the purpose of</em></span> protecting the railroads?
5109 Closer to the subject of this book, remote channel changers have
5110 weakened the <span class="quote">«<span class="quote">stickiness</span>»</span> of television advertising (if a boring
5111 commercial comes on the TV, the remote makes it easy to surf), and it
5112 may well be that this change has weakened the television advertising
5113 market. But does anyone believe we should regulate remotes to
5114 reinforce commercial television?  (Maybe by limiting them to function
5115 only once a second, or to switch to only ten channels within an hour?)
5116 </p><a class="indexterm" name="idxfreemarkettechnologicalchangesin"></a><a class="indexterm" name="idp8608144"></a><a class="indexterm" name="idp8608960"></a><a class="indexterm" name="idp8609776"></a><a class="indexterm" name="idp8610880"></a><a class="indexterm" name="idp8611696"></a><a class="indexterm" name="idp8612512"></a><p>
5117 The obvious answer to these obviously rhetorical questions is no.
5118 In a free society, with a free market, supported by free enterprise and
5119 free trade, the government's role is not to support one way of doing
5120
5121 business against others. Its role is not to pick winners and protect
5122 them against loss. If the government did this generally, then we would
5123 never have any progress. As Microsoft chairman Bill Gates wrote in
5124 1991, in a memo criticizing software patents, <span class="quote">«<span class="quote">established companies
5125 have an interest in excluding future competitors.</span>»</span><a href="#ftn.idp8614704" class="footnote" name="idp8614704"><sup class="footnote">[123]</sup></a>
5126 And relative to a
5127 startup, established companies also have the means. (Think RCA and
5128 FM radio.) A world in which competitors with new ideas must fight
5129 not only the market but also the government is a world in which
5130 competitors with new ideas will not succeed. It is a world of stasis and
5131 increasingly concentrated stagnation. It is the Soviet Union under
5132 Brezhnev.
5133 </p><p>
5134 Thus, while it is understandable for industries threatened with new
5135 technologies that change the way they do business to look to the
5136 government for protection, it is the special duty of policy makers to
5137 guarantee that that protection not become a deterrent to progress. It
5138 is the duty of policy makers, in other words, to assure that the
5139 changes they create, in response to the request of those hurt by
5140 changing technology, are changes that preserve the incentives and
5141 opportunities for innovation and change.
5142 </p><a class="indexterm" name="idp8617456"></a><a class="indexterm" name="idp8618528"></a><a class="indexterm" name="idp8619344"></a><p>
5143 In the context of laws regulating speech&#8212;which include,
5144 obviously, copyright law&#8212;that duty is even stronger. When the
5145 industry complaining about changing technologies is asking Congress to
5146 respond in a way that burdens speech and creativity, policy makers
5147 should be especially wary of the request. It is always a bad deal for
5148 the government to get into the business of regulating speech
5149 markets. The risks and dangers of that game are precisely why our
5150 framers created the First Amendment to our Constitution: <span class="quote">«<span class="quote">Congress
5151 shall make no law &#8230;  abridging the freedom of speech.</span>»</span> So when
5152 Congress is being asked to pass laws that would <span class="quote">«<span class="quote">abridge</span>»</span> the freedom
5153 of speech, it should ask&#8212; carefully&#8212;whether such
5154 regulation is justified.
5155 </p><a class="indexterm" name="idp8622592"></a><a class="indexterm" name="idp8623888"></a><p>
5156 My argument just now, however, has nothing to do with whether
5157
5158 the changes that are being pushed by the copyright warriors are
5159 <span class="quote">«<span class="quote">justified.</span>»</span>  My argument is about their effect. For before we get to
5160 the question of justification, a hard question that depends a great
5161 deal upon your values, we should first ask whether we understand the
5162 effect of the changes the content industry wants.
5163 </p><p>
5164 Here's the metaphor that will capture the argument to follow.
5165 </p><a class="indexterm" name="idxmllerpaulhermann"></a><a class="indexterm" name="idxddt"></a><a class="indexterm" name="idxinsecticideenvironmentalconsequencesof"></a><a class="indexterm" name="idxfarming"></a><p>
5166 In 1873, the chemical DDT was first synthesized. In 1948, Swiss
5167 chemist Paul Hermann Müller won the Nobel Prize for his work
5168 demonstrating the insecticidal properties of DDT. By the 1950s, the
5169 insecticide was widely used around the world to kill disease-carrying
5170 pests. It was also used to increase farm production.
5171 </p><p>
5172 No one doubts that killing disease-carrying pests or increasing crop
5173 production is a good thing. No one doubts that the work of Müller was
5174 important and valuable and probably saved lives, possibly millions.
5175 </p><a class="indexterm" name="idp8635120"></a><a class="indexterm" name="idp8635936"></a><a class="indexterm" name="idxenvironmentalism"></a><p>
5176 But in 1962, Rachel Carson published <em class="citetitle">Silent Spring</em>, which argued that
5177 DDT, whatever its primary benefits, was also having unintended
5178 environmental consequences. Birds were losing the ability to
5179 reproduce.  Whole chains of the ecology were being destroyed.
5180 </p><p>
5181 No one set out to destroy the environment. Paul Müller certainly did
5182 not aim to harm any birds. But the effort to solve one set of problems
5183 produced another set which, in the view of some, was far worse than
5184 the problems that were originally attacked. Or more accurately, the
5185 problems DDT caused were worse than the problems it solved, at least
5186 when considering the other, more environmentally friendly ways to
5187 solve the problems that DDT was meant to solve.
5188 </p><a class="indexterm" name="idp8640384"></a><a class="indexterm" name="idp8641696"></a><a class="indexterm" name="idxcopyrightlawinnovativefreedombalancedwithfaircompensationin2"></a><p>
5189 It is to this image precisely that Duke University law professor James
5190 Boyle appeals when he argues that we need an <span class="quote">«<span class="quote">environmentalism</span>»</span> for
5191 culture.<a href="#ftn.idp8645344" class="footnote" name="idp8645344"><sup class="footnote">[124]</sup></a>
5192 His point, and the point I want to develop in the balance of this
5193 chapter, is not that the aims of copyright are flawed. Or that authors
5194 should not be paid for their work. Or that music should be given away
5195 <span class="quote">«<span class="quote">for free.</span>»</span> The point is that some of the ways in which we might
5196 protect authors will have unintended consequences for the cultural
5197 environment, much like DDT had for the natural environment. And just
5198
5199 as criticism of DDT is not an endorsement of malaria or an attack on
5200 farmers, so, too, is criticism of one particular set of regulations
5201 protecting copyright not an endorsement of anarchy or an attack on
5202 authors.  It is an environment of creativity that we seek, and we
5203 should be aware of our actions' effects on the environment.
5204 </p><a class="indexterm" name="idp8648704"></a><p>
5205 My argument, in the balance of this chapter, tries to map exactly
5206 this effect. No doubt the technology of the Internet has had a dramatic
5207 effect on the ability of copyright owners to protect their content. But
5208 there should also be little doubt that when you add together the
5209 changes in copyright law over time, plus the change in technology that
5210 the Internet is undergoing just now, the net effect of these changes will
5211 not be only that copyrighted work is effectively protected. Also, and
5212 generally missed, the net effect of this massive increase in protection
5213 will be devastating to the environment for creativity.
5214 </p><a class="indexterm" name="idp8651008"></a><p>
5215 In a line: To kill a gnat, we are spraying DDT with consequences
5216 for free culture that will be far more devastating than that this gnat will
5217 be lost.
5218 </p><a class="indexterm" name="idp8653040"></a><a class="indexterm" name="idp8654304"></a><a class="indexterm" name="idp8655680"></a></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="beginnings"></a>10.2. Beginnings</h2></div></div></div><a class="indexterm" name="idp8658096"></a><a class="indexterm" name="idxconstitutionuscopyrightpurposeestablishedin"></a><a class="indexterm" name="idxconstitutionusprogressclauseof"></a><a class="indexterm" name="idp8663024"></a><a class="indexterm" name="idp8664096"></a><a class="indexterm" name="idxcreativepropertyconstitutionaltraditionon2"></a><a class="indexterm" name="idxprogressclause"></a><a class="indexterm" name="idp8668656"></a><p>
5219 America copied English copyright law. Actually, we copied and improved
5220 English copyright law. Our Constitution makes the purpose of <span class="quote">«<span class="quote">creative
5221 property</span>»</span> rights clear; its express limitations reinforce the English
5222 aim to avoid overly powerful publishers.
5223 </p><a class="indexterm" name="idxcongressusinconstitutionalprogressclause"></a><p>
5224 The power to establish <span class="quote">«<span class="quote">creative property</span>»</span> rights is granted to
5225 Congress in a way that, for our Constitution, at least, is very
5226 odd. Article I, section 8, clause 8 of our Constitution states that:
5227 </p><p>
5228 Congress has the power to promote the Progress of Science and
5229 useful Arts, by securing for limited Times to Authors and Inventors
5230 the exclusive Right to their respective Writings and Discoveries.
5231
5232
5233 We can call this the <span class="quote">«<span class="quote">Progress Clause,</span>»</span> for notice what this clause
5234 does not say. It does not say Congress has the power to grant
5235 <span class="quote">«<span class="quote">creative property rights.</span>»</span> It says that Congress has the power
5236 <span class="emphasis"><em>to promote progress</em></span>. The grant of power is its
5237 purpose, and its purpose is a public one, not the purpose of enriching
5238 publishers, nor even primarily the purpose of rewarding authors.
5239 </p><a class="indexterm" name="idp8676352"></a><a class="indexterm" name="idxcopyrightlawasprotectionofcreators"></a><a class="indexterm" name="idxcopyrightlawhistoryofamerican"></a><p>
5240 The Progress Clause expressly limits the term of copyrights. As we saw
5241 in chapter <a class="xref" href="#founders" title="Chapter 6. Chapter Six: Founders">6</a>,
5242 the English limited the term of copyright so as to assure that a few
5243 would not exercise disproportionate control over culture by exercising
5244 disproportionate control over publishing. We can assume the framers
5245 followed the English for a similar purpose. Indeed, unlike the
5246 English, the framers reinforced that objective, by requiring that
5247 copyrights extend <span class="quote">«<span class="quote">to Authors</span>»</span> only.
5248 </p><a class="indexterm" name="idp8683616"></a><a class="indexterm" name="idp8684432"></a><a class="indexterm" name="idp8685552"></a><p>
5249 The design of the Progress Clause reflects something about the
5250 Constitution's design in general. To avoid a problem, the framers
5251 built structure. To prevent the concentrated power of publishers, they
5252 built a structure that kept copyrights away from publishers and kept
5253 them short. To prevent the concentrated power of a church, they banned
5254 the federal government from establishing a church. To prevent
5255 concentrating power in the federal government, they built structures
5256 to reinforce the power of the states&#8212;including the Senate, whose
5257 members were at the time selected by the states, and an electoral
5258 college, also selected by the states, to select the president. In each
5259 case, a <span class="emphasis"><em>structure</em></span> built checks and balances into
5260 the constitutional frame, structured to prevent otherwise inevitable
5261 concentrations of power.
5262 </p><a class="indexterm" name="idp8688016"></a><a class="indexterm" name="idp8689408"></a><p>
5263 I doubt the framers would recognize the regulation we call <span class="quote">«<span class="quote">copyright</span>»</span>
5264 today. The scope of that regulation is far beyond anything they ever
5265 considered. To begin to understand what they did, we need to put our
5266 <span class="quote">«<span class="quote">copyright</span>»</span> in context: We need to see how it has changed in the 210
5267 years since they first struck its design.
5268 </p><a class="indexterm" name="idp8692240"></a><a class="indexterm" name="idp8693616"></a><a class="indexterm" name="idp8694992"></a><a class="indexterm" name="idp8696320"></a><p>
5269 Some of these changes come from the law: some in light of changes
5270 in technology, and some in light of changes in technology given a
5271
5272 particular concentration of market power. In terms of our model, we
5273 started here:
5274 </p><div class="figure"><a name="fig-1441"></a><p class="title"><b>Figure 10.5. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1331.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5275 We will end here:
5276 </p><div class="figure"><a name="fig-1442"></a><p class="title"><b>Figure 10.6. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1442.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5277 Let me explain how.
5278
5279 </p></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="lawduration"></a>10.3. Law: Duration</h2></div></div></div><a class="indexterm" name="idxcopyrightdurationof4"></a><a class="indexterm" name="idxcongressusoncopyrightlaws5"></a><a class="indexterm" name="idxcopyrightact"></a><a class="indexterm" name="idp8710768"></a><a class="indexterm" name="idxpublicdomainbalanceofuscontentin"></a><p>
5280 When the first Congress enacted laws to protect creative property, it
5281 faced the same uncertainty about the status of creative property that
5282 the English had confronted in 1774. Many states had passed laws
5283 protecting creative property, and some believed that these laws simply
5284 supplemented common law rights that already protected creative
5285 authorship.<a href="#ftn.idp8714416" class="footnote" name="idp8714416"><sup class="footnote">[125]</sup></a>
5286 This meant that there was no guaranteed public domain in the United
5287 States in 1790. If copyrights were protected by the common law, then
5288 there was no simple way to know whether a work published in the United
5289 States was controlled or free. Just as in England, this lingering
5290 uncertainty would make it hard for publishers to rely upon a public
5291 domain to reprint and distribute works.
5292 </p><a class="indexterm" name="idp8718176"></a><a class="indexterm" name="idxlawfederalvsstate"></a><p>
5293 That uncertainty ended after Congress passed legislation granting
5294 copyrights. Because federal law overrides any contrary state law,
5295 federal protections for copyrighted works displaced any state law
5296 protections.  Just as in England the Statute of Anne eventually meant
5297 that the copyrights for all English works expired, a federal statute
5298 meant that any state copyrights expired as well.
5299 </p><a class="indexterm" name="idxcopyrightrenewabilityof"></a><p>
5300 In 1790, Congress enacted the first copyright law. It created a
5301 federal copyright and secured that copyright for fourteen years. If
5302 the author was alive at the end of that fourteen years, then he could
5303 opt to renew the copyright for another fourteen years. If he did not
5304 renew the copyright, his work passed into the public domain.
5305 </p><a class="indexterm" name="idp8724272"></a><p>
5306 While there were many works created in the United States in the first
5307 ten years of the Republic, only 5 percent of the works were actually
5308 registered under the federal copyright regime. Of all the work created
5309 in the United States both before 1790 and from 1790 through 1800, 95
5310 percent immediately passed into the public domain; the balance would
5311 pass into the pubic domain within twenty-eight years at most, and more
5312 likely within fourteen years.<a href="#ftn.idp8726336" class="footnote" name="idp8726336"><sup class="footnote">[126]</sup></a>
5313 </p><a class="indexterm" name="idp8730512"></a><a class="indexterm" name="idp8731792"></a><p>
5314 This system of renewal was a crucial part of the American system
5315 of copyright. It assured that the maximum terms of copyright would be
5316
5317 granted only for works where they were wanted. After the initial term
5318 of fourteen years, if it wasn't worth it to an author to renew his
5319 copyright, then it wasn't worth it to society to insist on the
5320 copyright, either.
5321 </p><p>
5322 Fourteen years may not seem long to us, but for the vast majority of
5323 copyright owners at that time, it was long enough: Only a small
5324 minority of them renewed their copyright after fourteen years; the
5325 balance allowed their work to pass into the public
5326 domain.<a href="#ftn.idp8734672" class="footnote" name="idp8734672"><sup class="footnote">[127]</sup></a>
5327 </p><a class="indexterm" name="idp8737840"></a><a class="indexterm" name="idp8739168"></a><a class="indexterm" name="idp8740272"></a><p>
5328 Even today, this structure would make sense. Most creative work
5329 has an actual commercial life of just a couple of years. Most books fall
5330 out of print after one year.<a href="#ftn.idp8741808" class="footnote" name="idp8741808"><sup class="footnote">[128]</sup></a> When that happens, the
5331 used books are traded free of copyright regulation. Thus the books are
5332 no longer <span class="emphasis"><em>effectively</em></span> controlled by
5333 copyright. The only practical commercial use of the books at that time
5334 is to sell the books as used books; that use&#8212;because it does not
5335 involve publication&#8212;is effectively free.
5336 </p><a class="indexterm" name="idxcongressusoncopyrightlaws6"></a><a class="indexterm" name="idxcongressuscopyrighttermsextendedby"></a><a class="indexterm" name="idxcopyrightlawtermextensionsin"></a><p>
5337 In the first hundred years of the Republic, the term of copyright was
5338 changed once. In 1831, the term was increased from a maximum of 28
5339 years to a maximum of 42 by increasing the initial term of copyright
5340 from 14 years to 28 years. In the next fifty years of the Republic,
5341 the term increased once again. In 1909, Congress extended the renewal
5342 term of 14 years to 28 years, setting a maximum term of 56 years.
5343 </p><a class="indexterm" name="idxsonnybonocopyrighttermextensionactctea"></a><a class="indexterm" name="idxpublicdomainfuturepatentsvsfuturecopyrightsin"></a><p>
5344 Then, beginning in 1962, Congress started a practice that has defined
5345 copyright law since. Eleven times in the last forty years, Congress
5346 has extended the terms of existing copyrights; twice in those forty
5347 years, Congress extended the term of future copyrights. Initially, the
5348 extensions of existing copyrights were short, a mere one to two years.
5349 In 1976, Congress extended all existing copyrights by nineteen years.
5350 And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress
5351 extended the term of existing and future copyrights by twenty years.
5352 </p><a class="indexterm" name="idp8754304"></a><p>
5353 The effect of these extensions is simply to toll, or delay, the passing
5354 of works into the public domain. This latest extension means that the
5355 public domain will have been tolled for thirty-nine out of fifty-five
5356 years, or 70 percent of the time since 1962. Thus, in the twenty years
5357
5358
5359 after the Sonny Bono Act, while one million patents will pass into the
5360 public domain, zero copyrights will pass into the public domain by virtue
5361 of the expiration of a copyright term.
5362 </p><a class="indexterm" name="idp8756624"></a><p>
5363 The effect of these extensions has been exacerbated by another,
5364 little-noticed change in the copyright law. Remember I said that the
5365 framers established a two-part copyright regime, requiring a copyright
5366 owner to renew his copyright after an initial term. The requirement of
5367 renewal meant that works that no longer needed copyright protection
5368 would pass more quickly into the public domain. The works remaining
5369 under protection would be those that had some continuing commercial
5370 value.
5371 </p><a class="indexterm" name="idp8758848"></a><a class="indexterm" name="idp8759632"></a><a class="indexterm" name="idp8760752"></a><p>
5372 The United States abandoned this sensible system in 1976. For
5373 all works created after 1978, there was only one copyright term&#8212;the
5374 maximum term. For <span class="quote">«<span class="quote">natural</span>»</span> authors, that term was life plus fifty
5375 years. For corporations, the term was seventy-five years. Then, in 1992,
5376 Congress abandoned the renewal requirement for all works created
5377 before 1978. All works still under copyright would be accorded the
5378 maximum term then available. After the Sonny Bono Act, that term
5379 was ninety-five years.
5380 </p><p>
5381 This change meant that American law no longer had an automatic way to
5382 assure that works that were no longer exploited passed into the public
5383 domain. And indeed, after these changes, it is unclear whether it is
5384 even possible to put works into the public domain. The public domain
5385 is orphaned by these changes in copyright law. Despite the requirement
5386 that terms be <span class="quote">«<span class="quote">limited,</span>»</span> we have no evidence that anything will limit
5387 them.
5388 </p><a class="indexterm" name="idp8764432"></a><a class="indexterm" name="idp8765824"></a><p>
5389 The effect of these changes on the average duration of copyright is
5390 dramatic. In 1973, more than 85 percent of copyright owners failed to
5391 renew their copyright. That meant that the average term of copyright
5392 in 1973 was just 32.2 years. Because of the elimination of the renewal
5393 requirement, the average term of copyright is now the maximum term.
5394 In thirty years, then, the average term has tripled, from 32.2 years to 95
5395 years.<a href="#ftn.idp8767920" class="footnote" name="idp8767920"><sup class="footnote">[129]</sup></a>
5396 </p><a class="indexterm" name="idp8769584"></a><a class="indexterm" name="idp8770832"></a><a class="indexterm" name="idp8772160"></a><a class="indexterm" name="idp8773440"></a><a class="indexterm" name="idp8774720"></a></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="lawscope"></a>10.4. Law: Scope</h2></div></div></div><a class="indexterm" name="idxcopyrightscopeof"></a><p>
5397 The <span class="quote">«<span class="quote">scope</span>»</span> of a copyright is the range of rights granted by the law.
5398 The scope of American copyright has changed dramatically. Those
5399 changes are not necessarily bad. But we should understand the extent
5400 of the changes if we're to keep this debate in context.
5401 </p><a class="indexterm" name="idp8780576"></a><a class="indexterm" name="idxderivativeworkshistoricalshiftincopyrightcoverageof"></a><p>
5402 In 1790, that scope was very narrow. Copyright covered only <span class="quote">«<span class="quote">maps,
5403 charts, and books.</span>»</span> That means it didn't cover, for example, music or
5404 architecture. More significantly, the right granted by a copyright gave
5405 the author the exclusive right to <span class="quote">«<span class="quote">publish</span>»</span> copyrighted works. That
5406 means someone else violated the copyright only if he republished the
5407 work without the copyright owner's permission. Finally, the right granted
5408 by a copyright was an exclusive right to that particular book. The right
5409 did not extend to what lawyers call <span class="quote">«<span class="quote">derivative works.</span>»</span> It would not,
5410 therefore, interfere with the right of someone other than the author to
5411 translate a copyrighted book, or to adapt the story to a different form
5412 (such as a drama based on a published book).
5413 </p><p>
5414 This, too, has changed dramatically. While the contours of copyright
5415 today are extremely hard to describe simply, in general terms, the
5416 right covers practically any creative work that is reduced to a
5417 tangible form. It covers music as well as architecture, drama as well
5418 as computer programs. It gives the copyright owner of that creative
5419 work not only the exclusive right to <span class="quote">«<span class="quote">publish</span>»</span> the work, but also the
5420 exclusive right of control over any <span class="quote">«<span class="quote">copies</span>»</span> of that work. And most
5421 significant for our purposes here, the right gives the copyright owner
5422 control over not only his or her particular work, but also any
5423 <span class="quote">«<span class="quote">derivative work</span>»</span> that might grow out of the original work. In this
5424 way, the right covers more creative work, protects the creative work
5425 more broadly, and protects works that are based in a significant way
5426 on the initial creative work.
5427 </p><a class="indexterm" name="idxcopyrightmarkingof"></a><a class="indexterm" name="idxformalities"></a><a class="indexterm" name="idxcopyrightlawregistrationrequirementof"></a><p>
5428 At the same time that the scope of copyright has expanded, procedural
5429 limitations on the right have been relaxed. I've already described the
5430 complete removal of the renewal requirement in 1992. In addition
5431
5432 to the renewal requirement, for most of the history of American
5433 copyright law, there was a requirement that a work be registered
5434 before it could receive the protection of a copyright. There was also
5435 a requirement that any copyrighted work be marked either with that
5436 famous © or the word <span class="emphasis"><em>copyright</em></span>. And for most
5437 of the history of American copyright law, there was a requirement that
5438 works be deposited with the government before a copyright could be
5439 secured.
5440 </p><a class="indexterm" name="idp8795584"></a><p>
5441 The reason for the registration requirement was the sensible
5442 understanding that for most works, no copyright was required. Again,
5443 in the first ten years of the Republic, 95 percent of works eligible
5444 for copyright were never copyrighted. Thus, the rule reflected the
5445 norm: Most works apparently didn't need copyright, so registration
5446 narrowed the regulation of the law to the few that did. The same
5447 reasoning justified the requirement that a work be marked as
5448 copyrighted&#8212;that way it was easy to know whether a copyright was
5449 being claimed. The requirement that works be deposited was to assure
5450 that after the copyright expired, there would be a copy of the work
5451 somewhere so that it could be copied by others without locating the
5452 original author.
5453 </p><a class="indexterm" name="idp8797216"></a><p>
5454 All of these <span class="quote">«<span class="quote">formalities</span>»</span> were abolished in the American system when
5455 we decided to follow European copyright law. There is no requirement
5456 that you register a work to get a copyright; the copyright now is
5457 automatic; the copyright exists whether or not you mark your work with
5458 a ©; and the copyright exists whether or not you actually make a
5459 copy available for others to copy.
5460 </p><a class="indexterm" name="idp8800512"></a><a class="indexterm" name="idp8802048"></a><a class="indexterm" name="idp8803312"></a><p>
5461 Consider a practical example to understand the scope of these
5462 differences.
5463 </p><a class="indexterm" name="idxcopyrightact2"></a><p>
5464 If, in 1790, you wrote a book and you were one of the 5 percent who
5465 actually copyrighted that book, then the copyright law protected you
5466 against another publisher's taking your book and republishing it
5467 without your permission. The aim of the act was to regulate publishers
5468 so as to prevent that kind of unfair competition. In 1790, there were
5469 174 publishers in the United States.<a href="#ftn.idp8807232" class="footnote" name="idp8807232"><sup class="footnote">[130]</sup></a>
5470 The Copyright Act was thus a tiny
5471 regulation of a tiny proportion of a tiny part of the creative market in
5472 the United States&#8212;publishers.
5473 </p><a class="indexterm" name="idxcopyrightlawonrepublishingvstransformationoforiginalwork2"></a><a class="indexterm" name="idxderivativeworkspiracyvs3"></a><a class="indexterm" name="idxpiracyderivativeworkvs3"></a><p>
5474
5475 The act left other creators totally unregulated. If I copied your poem
5476 by hand, over and over again, as a way to learn it by heart, my act
5477 was totally unregulated by the 1790 act. If I took your novel and made
5478 a play based upon it, or if I translated it or abridged it, none of
5479 those activities were regulated by the original copyright act. These
5480 creative activities remained free, while the activities of publishers
5481 were restrained.
5482 </p><a class="indexterm" name="idp8816384"></a><p>
5483 Today the story is very different: If you write a book, your book is
5484 automatically protected. Indeed, not just your book. Every e-mail,
5485 every note to your spouse, every doodle, <span class="emphasis"><em>every</em></span>
5486 creative act that's reduced to a tangible form&#8212;all of this is
5487 automatically copyrighted.  There is no need to register or mark your
5488 work. The protection follows the creation, not the steps you take to
5489 protect it.
5490 </p><p>
5491 That protection gives you the right (subject to a narrow range of
5492 fair use exceptions) to control how others copy the work, whether they
5493 copy it to republish it or to share an excerpt.
5494 </p><p>
5495 That much is the obvious part. Any system of copyright would
5496                 control
5497 competing publishing. But there's a second part to the copyright of
5498 today that is not at all obvious. This is the protection of <span class="quote">«<span class="quote">derivative
5499 rights.</span>»</span> If you write a book, no one can make a movie out of your
5500 book without permission. No one can translate it without permission.
5501 CliffsNotes can't make an abridgment unless permission is granted. All
5502 of these derivative uses of your original work are controlled by the
5503 copyright holder. The copyright, in other words, is now not just an
5504                 exclusive
5505 right to your writings, but an exclusive right to your writings
5506 and a large proportion of the writings inspired by them.
5507 </p><a class="indexterm" name="idp8821008"></a><p>
5508 It is this derivative right that would seem most bizarre to our
5509 framers, though it has become second nature to us. Initially, this
5510                 expansion
5511 was created to deal with obvious evasions of a narrower
5512                 copyright.
5513 If I write a book, can you change one word and then claim a
5514 copyright in a new and different book? Obviously that would make a
5515 joke of the copyright, so the law was properly expanded to include
5516 those slight modifications as well as the verbatim original work.
5517 </p><p>
5518
5519 In preventing that joke, the law created an astonishing power
5520 within a free culture&#8212;at least, it's astonishing when you
5521 understand that the law applies not just to the commercial publisher
5522 but to anyone with a computer. I understand the wrong in duplicating
5523 and selling someone else's work. But whatever
5524 <span class="emphasis"><em>that</em></span> wrong is, transforming someone else's work
5525 is a different wrong. Some view transformation as no wrong at
5526 all&#8212;they believe that our law, as the framers penned it, should
5527 not protect derivative rights at all.<a href="#ftn.idp8824528" class="footnote" name="idp8824528"><sup class="footnote">[131]</sup></a>
5528 Whether or not you go that far, it seems
5529 plain that whatever wrong is involved is fundamentally different from
5530 the wrong of direct piracy.
5531 </p><p>
5532 Yet copyright law treats these two different wrongs in the same way. I
5533 can go to court and get an injunction against your pirating my book. I
5534 can go to court and get an injunction against your transformative use
5535 of my book.<a href="#ftn.idp8828752" class="footnote" name="idp8828752"><sup class="footnote">[132]</sup></a>
5536 These two different uses of my creative work are treated the same.
5537 </p><a class="indexterm" name="idp8832112"></a><a class="indexterm" name="idp8833456"></a><a class="indexterm" name="idp8834272"></a><p>
5538 This again may seem right to you. If I wrote a book, then why should
5539 you be able to write a movie that takes my story and makes money from
5540 it without paying me or crediting me? Or if Disney creates a creature
5541 called <span class="quote">«<span class="quote">Mickey Mouse,</span>»</span> why should you be able to make Mickey Mouse
5542 toys and be the one to trade on the value that Disney originally
5543 created?
5544 </p><p>
5545 These are good arguments, and, in general, my point is not that the
5546 derivative right is unjustified. My aim just now is much narrower:
5547 simply to make clear that this expansion is a significant change from
5548 the rights originally granted.
5549 </p><a class="indexterm" name="idp8836896"></a><a class="indexterm" name="idp8838160"></a></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="lawreach"></a>10.5. Law and Architecture: Reach</h2></div></div></div><a class="indexterm" name="idxcopyrightlawcopiesascoreissueof"></a><a class="indexterm" name="idxcopyrightlawscopeof"></a><p>
5550 Whereas originally the law regulated only publishers, the change in
5551 copyright's scope means that the law today regulates publishers, users,
5552 and authors. It regulates them because all three are capable of making
5553 copies, and the core of the regulation of copyright law is copies.<a href="#ftn.idp8845040" class="footnote" name="idp8845040"><sup class="footnote">[133]</sup></a>
5554 </p><a class="indexterm" name="idp8848896"></a><a class="indexterm" name="idxcreativepropertyotherpropertyrightsvs2"></a><p>
5555
5556 <span class="quote">«<span class="quote">Copies.</span>»</span> That certainly sounds like the obvious thing for
5557 <span class="emphasis"><em>copy</em></span>right law to regulate. But as with Jack
5558 Valenti's argument at the start of this chapter, that <span class="quote">«<span class="quote">creative
5559 property</span>»</span> deserves the <span class="quote">«<span class="quote">same rights</span>»</span> as all other property, it is the
5560 <span class="emphasis"><em>obvious</em></span> that we need to be most careful
5561 about. For while it may be obvious that in the world before the
5562 Internet, copies were the obvious trigger for copyright law, upon
5563 reflection, it should be obvious that in the world with the Internet,
5564 copies should <span class="emphasis"><em>not</em></span> be the trigger for copyright
5565 law. More precisely, they should not <span class="emphasis"><em>always</em></span> be
5566 the trigger for copyright law.
5567 </p><a class="indexterm" name="idp8856112"></a><p>
5568 This is perhaps the central claim of this book, so let me take this
5569 very slowly so that the point is not easily missed. My claim is that the
5570 Internet should at least force us to rethink the conditions under which
5571 the law of copyright automatically applies,<a href="#ftn.idp8858032" class="footnote" name="idp8858032"><sup class="footnote">[134]</sup></a>
5572 because it is clear that the
5573 current reach of copyright was never contemplated, much less chosen,
5574 by the legislators who enacted copyright law.
5575 </p><a class="indexterm" name="idp8859488"></a><a class="indexterm" name="idp8860720"></a><p>
5576 We can see this point abstractly by beginning with this largely
5577 empty circle.
5578 </p><div class="figure"><a name="fig-1521"></a><p class="title"><b>Figure 10.7. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="40%"><tr><td align="center"><img src="images/1521.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idxbooksthreetypesofusesof"></a><a class="indexterm" name="idxcopyrightlawcopiesascoreissueof2"></a><a class="indexterm" name="idxinternetcopyrightapplicabilityalteredbytechnologyof"></a><a class="indexterm" name="idxtechnologycopyrightintentalteredby"></a><a class="indexterm" name="idxderivativeworkspiracyvs4"></a><a class="indexterm" name="idxpiracyderivativeworkvs4"></a><p>
5579
5580 Think about a book in real space, and imagine this circle to represent
5581 all its potential <span class="emphasis"><em>uses</em></span>. Most of these uses are
5582 unregulated by copyright law, because the uses don't create a copy. If
5583 you read a book, that act is not regulated by copyright law. If you
5584 give someone the book, that act is not regulated by copyright law. If
5585 you resell a book, that act is not regulated (copyright law expressly
5586 states that after the first sale of a book, the copyright owner can
5587 impose no further conditions on the disposition of the book). If you
5588 sleep on the book or use it to hold up a lamp or let your puppy chew
5589 it up, those acts are not regulated by copyright law, because those
5590 acts do not make a copy.
5591 </p><div class="figure"><a name="fig-1531"></a><p class="title"><b>Figure 10.8. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="40%"><tr><td align="center"><img src="images/1531.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5592 Obviously, however, some uses of a copyrighted book are regulated
5593 by copyright law. Republishing the book, for example, makes a copy. It
5594 is therefore regulated by copyright law. Indeed, this particular use stands
5595 at the core of this circle of possible uses of a copyrighted work. It is the
5596 paradigmatic use properly regulated by copyright regulation (see
5597 diagram in figure <a class="xref" href="#fig-1541" title="Figure 10.9. ">10.9</a>).
5598 </p><a class="indexterm" name="idp8882384"></a><a class="indexterm" name="idp8883680"></a><a class="indexterm" name="idxfairuse"></a><a class="indexterm" name="idxcopyrightlawfairuseand2"></a><p>
5599 Finally, there is a tiny sliver of otherwise regulated copying uses
5600 that remain unregulated because the law considers these <span class="quote">«<span class="quote">fair uses.</span>»</span>
5601 </p><div class="figure"><a name="fig-1541"></a><p class="title"><b>Figure 10.9. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="40%"><tr><td align="center"><img src="images/1541.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8891952"></a><a class="indexterm" name="idp8893056"></a><p>
5602 These are uses that themselves involve copying, but which the law
5603 treats as unregulated because public policy demands that they remain
5604 unregulated.  You are free to quote from this book, even in a review
5605 that is quite negative, without my permission, even though that
5606 quoting makes a copy. That copy would ordinarily give the copyright
5607 owner the exclusive right to say whether the copy is allowed or not,
5608 but the law denies the owner any exclusive right over such <span class="quote">«<span class="quote">fair uses</span>»</span>
5609 for public policy (and possibly First Amendment) reasons.
5610 </p><div class="figure"><a name="fig-1542"></a><p class="title"><b>Figure 10.10. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="40%"><tr><td align="center"><img src="images/1542.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idxcopyrightusagerestrictionsattachedto"></a><p>
5611
5612 In real space, then, the possible uses of a book are divided into three
5613 sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that
5614 are nonetheless deemed <span class="quote">«<span class="quote">fair</span>»</span> regardless of the copyright owner's views.
5615 </p><a class="indexterm" name="idp8900848"></a><a class="indexterm" name="idxbooksoninternet"></a><a class="indexterm" name="idxinternetbookson2"></a><a class="indexterm" name="idp8905792"></a><p>
5616 Enter the Internet&#8212;a distributed, digital network where every use
5617 of a copyrighted work produces a copy.<a href="#ftn.idp8907344" class="footnote" name="idp8907344"><sup class="footnote">[135]</sup></a>
5618 And because of this single, arbitrary feature of the design of a
5619 digital network, the scope of category 1 changes dramatically. Uses
5620 that before were presumptively unregulated are now presumptively
5621 regulated. No longer is there a set of presumptively unregulated uses
5622 that define a freedom associated with a copyrighted work. Instead,
5623 each use is now subject to the copyright, because each use also makes
5624 a copy&#8212;category 1 gets sucked into category 2. And those who
5625 would defend the unregulated uses of copyrighted work must look
5626 exclusively to category 3, fair uses, to bear the burden of this
5627 shift.
5628 </p><a class="indexterm" name="idp8908848"></a><a class="indexterm" name="idp8910848"></a><p>
5629 So let's be very specific to make this general point clear. Before the
5630 Internet, if you purchased a book and read it ten times, there would
5631 be no plausible <span class="emphasis"><em>copyright</em></span>-related argument that
5632 the copyright owner could make to control that use of her
5633 book. Copyright law would have nothing to say about whether you read
5634 the book once, ten times, or every
5635
5636 night before you went to bed. None of those instances of
5637 use&#8212;reading&#8212; could be regulated by copyright law because
5638 none of those uses produced a copy.
5639 </p><a class="indexterm" name="idxebooks"></a><a class="indexterm" name="idxderivativeworkstechnologicaldevelopmentsand"></a><p>
5640 But the same book as an e-book is effectively governed by a different
5641 set of rules. Now if the copyright owner says you may read the book
5642 only once or only once a month, then <span class="emphasis"><em>copyright
5643 law</em></span> would aid the copyright owner in exercising this degree
5644 of control, because of the accidental feature of copyright law that
5645 triggers its application upon there being a copy. Now if you read the
5646 book ten times and the license says you may read it only five times,
5647 then whenever you read the book (or any portion of it) beyond the
5648 fifth time, you are making a copy of the book contrary to the
5649 copyright owner's wish.
5650 </p><div class="figure"><a name="fig-1551"></a><p class="title"><b>Figure 10.11. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="40%"><tr><td align="center"><img src="images/1551.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5651 There are some people who think this makes perfect sense. My aim
5652 just now is not to argue about whether it makes sense or not. My aim
5653 is only to make clear the change. Once you see this point, a few other
5654 points also become clear:
5655 </p><p>
5656 First, making category 1 disappear is not anything any policy maker
5657 ever intended. Congress did not think through the collapse of the
5658 presumptively unregulated uses of copyrighted works. There is no
5659 evidence at all that policy makers had this idea in mind when they
5660 allowed our policy here to shift. Unregulated uses were an important
5661 part of free culture before the Internet.
5662 </p><a class="indexterm" name="idxcopyrightlawonrepublishingvstransformationoforiginalwork3"></a><p>
5663 Second, this shift is especially troubling in the context of
5664 transformative uses of creative content. Again, we can all understand
5665 the wrong in commercial piracy. But the law now purports to regulate
5666 <span class="emphasis"><em>any</em></span> transformation you make of creative work
5667 using a machine. <span class="quote">«<span class="quote">Copy and paste</span>»</span> and <span class="quote">«<span class="quote">cut and paste</span>»</span> become
5668 crimes. Tinkering with a story and releasing it to others exposes the
5669 tinkerer to at least a requirement of justification.  However
5670 troubling the expansion with respect to copying a particular work, it
5671 is extraordinarily troubling with respect to transformative uses of
5672 creative work.
5673 </p><a class="indexterm" name="idxfairuseinternetburdenson"></a><a class="indexterm" name="idxcopyrightlawfairuseand3"></a><a class="indexterm" name="idxderivativeworksfairusevs"></a><p>
5674 Third, this shift from category 1 to category 2 puts an extraordinary
5675
5676
5677 burden on category 3 (<span class="quote">«<span class="quote">fair use</span>»</span>) that fair use never before had to
5678 bear.  If a copyright owner now tried to control how many times I
5679 could read a book on-line, the natural response would be to argue that
5680 this is a violation of my fair use rights. But there has never been
5681 any litigation about whether I have a fair use right to read, because
5682 before the Internet, reading did not trigger the application of
5683 copyright law and hence the need for a fair use defense. The right to
5684 read was effectively protected before because reading was not
5685 regulated.
5686 </p><a class="indexterm" name="idp8934128"></a><a class="indexterm" name="idp8935472"></a><a class="indexterm" name="idp8936800"></a><a class="indexterm" name="idp8938128"></a><a class="indexterm" name="idp8939520"></a><p>
5687 This point about fair use is totally ignored, even by advocates for
5688 free culture. We have been cornered into arguing that our rights
5689 depend upon fair use&#8212;never even addressing the earlier question
5690 about the expansion in effective regulation. A thin protection
5691 grounded in fair use makes sense when the vast majority of uses are
5692 <span class="emphasis"><em>unregulated</em></span>. But when everything becomes
5693 presumptively regulated, then the protections of fair use are not
5694 enough.
5695 </p><a class="indexterm" name="idp8942272"></a><a class="indexterm" name="idp8943552"></a><a class="indexterm" name="idp8944816"></a><a class="indexterm" name="idp8946128"></a><a class="indexterm" name="idp8947376"></a><a class="indexterm" name="idp8948704"></a><a class="indexterm" name="idp8950048"></a><a class="indexterm" name="idxvideopipeline"></a><a class="indexterm" name="idxadvertising"></a><a class="indexterm" name="idxfilmindustrytraileradvertisementsof"></a><p>
5696 The case of Video Pipeline is a good example. Video Pipeline was
5697 in the business of making <span class="quote">«<span class="quote">trailer</span>»</span> advertisements for movies available
5698 to video stores. The video stores displayed the trailers as a way to sell
5699 videos. Video Pipeline got the trailers from the film distributors, put
5700 the trailers on tape, and sold the tapes to the retail stores.
5701 </p><a class="indexterm" name="idp8957440"></a><p>
5702 The company did this for about fifteen years. Then, in 1997, it began
5703 to think about the Internet as another way to distribute these
5704 previews.  The idea was to expand their <span class="quote">«<span class="quote">selling by sampling</span>»</span>
5705 technique by giving on-line stores the same ability to enable
5706 <span class="quote">«<span class="quote">browsing.</span>»</span> Just as in a bookstore you can read a few pages of a book
5707 before you buy the book, so, too, you would be able to sample a bit
5708 from the movie on-line before you bought it.
5709 </p><a class="indexterm" name="idxdisneyinc2"></a><a class="indexterm" name="idp8961424"></a><a class="indexterm" name="idxcopyrightlawcopiesascoreissueof3"></a><a class="indexterm" name="idxfairuselegalintimidationtacticsagainst2"></a><p>
5710 In 1998, Video Pipeline informed Disney and other film distributors
5711 that it intended to distribute the trailers through the Internet
5712 (rather than sending the tapes) to distributors of their videos. Two
5713 years later, Disney told Video Pipeline to stop. The owner of Video
5714
5715 Pipeline asked Disney to talk about the matter&#8212;he had built a
5716 business on distributing this content as a way to help sell Disney
5717 films; he had customers who depended upon his delivering this
5718 content. Disney would agree to talk only if Video Pipeline stopped the
5719 distribution immediately.  Video Pipeline thought it was within their
5720 <span class="quote">«<span class="quote">fair use</span>»</span> rights to distribute the clips as they had. So they filed a
5721 lawsuit to ask the court to declare that these rights were in fact
5722 their rights.
5723 </p><a class="indexterm" name="idp8968304"></a><a class="indexterm" name="idp8969552"></a><a class="indexterm" name="idxcopyrightusagerestrictionsattachedto2"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitswillfulinfringementfindingsin"></a><a class="indexterm" name="idp8974848"></a><p>
5724 Disney countersued&#8212;for $100 million in damages. Those damages
5725 were predicated upon a claim that Video Pipeline had <span class="quote">«<span class="quote">willfully
5726 infringed</span>»</span> on Disney's copyright. When a court makes a finding of
5727 willful infringement, it can award damages not on the basis of the
5728 actual harm to the copyright owner, but on the basis of an amount set
5729 in the statute. Because Video Pipeline had distributed seven hundred
5730 clips of Disney movies to enable video stores to sell copies of those
5731 movies, Disney was now suing Video Pipeline for $100 million.
5732 </p><p>
5733 Disney has the right to control its property, of course. But the video
5734 stores that were selling Disney's films also had some sort of right to be
5735 able to sell the films that they had bought from Disney. Disney's claim
5736 in court was that the stores were allowed to sell the films and they were
5737 permitted to list the titles of the films they were selling, but they were
5738 not allowed to show clips of the films as a way of selling them without
5739 Disney's permission.
5740 </p><a class="indexterm" name="idp8977904"></a><p>
5741 Now, you might think this is a close case, and I think the courts
5742 would consider it a close case. My point here is to map the change
5743 that gives Disney this power. Before the Internet, Disney couldn't
5744 really control how people got access to their content. Once a video
5745 was in the marketplace, the <span class="quote">«<span class="quote">first-sale doctrine</span>»</span> would free the
5746 seller to use the video as he wished, including showing portions of it
5747 in order to engender sales of the entire movie video. But with the
5748 Internet, it becomes possible for Disney to centralize control over
5749 access to this content. Because each use of the Internet produces a
5750 copy, use on the Internet becomes subject to the copyright owner's
5751 control. The technology expands the scope of effective control,
5752 because the technology builds a copy into every transaction.
5753 </p><a class="indexterm" name="idp8980304"></a><a class="indexterm" name="idp8981616"></a><a class="indexterm" name="idp8982928"></a><a class="indexterm" name="idp8984320"></a><a class="indexterm" name="idp8985648"></a><a class="indexterm" name="idp8986960"></a><a class="indexterm" name="idp8988304"></a><a class="indexterm" name="idp8989120"></a><a class="indexterm" name="idp8989936"></a><p>
5754
5755 No doubt, a potential is not yet an abuse, and so the potential for
5756 control is not yet the abuse of control. Barnes &amp; Noble has the
5757 right to say you can't touch a book in their store; property law gives
5758 them that right.  But the market effectively protects against that
5759 abuse. If Barnes &amp; Noble banned browsing, then consumers would
5760 choose other bookstores.  Competition protects against the
5761 extremes. And it may well be (my argument so far does not even
5762 question this) that competition would prevent any similar danger when
5763 it comes to copyright. Sure, publishers exercising the rights that
5764 authors have assigned to them might try to regulate how many times you
5765 read a book, or try to stop you from sharing the book with anyone. But
5766 in a competitive market such as the book market, the dangers of this
5767 happening are quite slight.
5768 </p><p>
5769 Again, my aim so far is simply to map the changes that this changed
5770 architecture enables. Enabling technology to enforce the control of
5771 copyright means that the control of copyright is no longer defined by
5772 balanced policy. The control of copyright is simply what private
5773 owners choose. In some contexts, at least, that fact is harmless. But
5774 in some contexts it is a recipe for disaster.
5775 </p></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="lawforce"></a>10.6. Architecture and Law: Force</h2></div></div></div><p>
5776 The disappearance of unregulated uses would be change enough, but a
5777 second important change brought about by the Internet magnifies its
5778 significance. This second change does not affect the reach of copyright
5779 regulation; it affects how such regulation is enforced.
5780 </p><a class="indexterm" name="idp8996976"></a><a class="indexterm" name="idp8998064"></a><p>
5781 In the world before digital technology, it was generally the law that
5782 controlled whether and how someone was regulated by copyright law.
5783 The law, meaning a court, meaning a judge: In the end, it was a human,
5784 trained in the tradition of the law and cognizant of the balances that
5785 tradition embraced, who said whether and how the law would restrict
5786 your freedom.
5787 </p><a class="indexterm" name="idp8999952"></a><a class="indexterm" name="idxmarxbrothers"></a><a class="indexterm" name="idxwarnerbrothers"></a><p>
5788 There's a famous story about a battle between the Marx Brothers
5789 and Warner Brothers. The Marxes intended to make a parody of
5790
5791 <em class="citetitle">Casablanca</em>. Warner Brothers objected. They
5792 wrote a nasty letter to the Marxes, warning them that there would be
5793 serious legal consequences if they went forward with their
5794 plan.<a href="#ftn.idp9005088" class="footnote" name="idp9005088"><sup class="footnote">[136]</sup></a>
5795 </p><p>
5796 This led the Marx Brothers to respond in kind. They warned
5797 Warner Brothers that the Marx Brothers <span class="quote">«<span class="quote">were brothers long before
5798 you were.</span>»</span><a href="#ftn.idp9007680" class="footnote" name="idp9007680"><sup class="footnote">[137]</sup></a>
5799 The Marx Brothers therefore owned the word
5800 <em class="citetitle">brothers</em>, and if Warner Brothers insisted on
5801 trying to control <em class="citetitle">Casablanca</em>, then the Marx
5802 Brothers would insist on control over <em class="citetitle">brothers</em>.
5803 </p><p>
5804 An absurd and hollow threat, of course, because Warner Brothers,
5805 like the Marx Brothers, knew that no court would ever enforce such a
5806 silly claim. This extremism was irrelevant to the real freedoms anyone
5807 (including Warner Brothers) enjoyed.
5808 </p><a class="indexterm" name="idxbooksoninternet2"></a><p>
5809 On the Internet, however, there is no check on silly rules, because on
5810 the Internet, increasingly, rules are enforced not by a human but by a
5811 machine: Increasingly, the rules of copyright law, as interpreted by
5812 the copyright owner, get built into the technology that delivers
5813 copyrighted content. It is code, rather than law, that rules. And the
5814 problem with code regulations is that, unlike law, code has no
5815 shame. Code would not get the humor of the Marx Brothers. The
5816 consequence of that is not at all funny.
5817 </p><a class="indexterm" name="idp9014720"></a><a class="indexterm" name="idp9015968"></a><a class="indexterm" name="idxadobeebookreader"></a><p>
5818 Consider the life of my Adobe eBook Reader.
5819 </p><p>
5820 An e-book is a book delivered in electronic form. An Adobe eBook is
5821 not a book that Adobe has published; Adobe simply produces the
5822 software that publishers use to deliver e-books. It provides the
5823 technology, and the publisher delivers the content by using the
5824 technology.
5825 </p><p>
5826 In figure
5827 <a class="xref" href="#fig-example-adobe-ebook-reader" title="Figure 10.12. ">10.12</a>
5828 is a picture of an old version of my Adobe eBook Reader.
5829 </p><p>
5830 As you can see, I have a small collection of e-books within this
5831 e-book library. Some of these books reproduce content that is in the
5832 public domain: <em class="citetitle">Middlemarch</em>, for example, is in
5833 the public domain.  Some of them reproduce content that is not in the
5834 public domain: My own book <em class="citetitle">The Future of Ideas</em>
5835 is not yet within the public domain.  Consider
5836 <em class="citetitle">Middlemarch</em> first. If you click on my e-book
5837 copy of
5838
5839 <em class="citetitle">Middlemarch</em>, you'll see a fancy cover, and then
5840 a button at the bottom called Permissions.
5841 </p><div class="figure"><a name="fig-example-adobe-ebook-reader"></a><p class="title"><b>Figure 10.12. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/example-adobe-ebook-reader.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5842 If you click on the Permissions button, you'll see a list of the
5843 permissions that the publisher purports to grant with this book.
5844 </p><div class="figure"><a name="fig-1612"></a><p class="title"><b>Figure 10.13. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1612.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5845
5846 According to my eBook Reader, I have the permission to copy to the
5847 clipboard of the computer ten text selections every ten days. (So far,
5848 I've copied no text to the clipboard.)  I also have the permission to
5849 print ten pages from the book every ten days. Lastly, I have the
5850 permission to use the Read Aloud button to hear <em class="citetitle">Middlemarch</em>
5851 read aloud through the computer.
5852 </p><a class="indexterm" name="idp9031200"></a><a class="indexterm" name="idp9032016"></a><p>
5853 Here's the e-book for another work in the public domain (including the
5854 translation): Aristotle's <em class="citetitle">Politics</em>.
5855 </p><div class="figure"><a name="fig-1621"></a><p class="title"><b>Figure 10.14. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1621.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5856 According to its permissions, no printing or copying is permitted
5857 at all. But fortunately, you can use the Read Aloud button to hear
5858 the book.
5859 </p><div class="figure"><a name="fig-1622"></a><p class="title"><b>Figure 10.15. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1622.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp9039392"></a><a class="indexterm" name="idp9040224"></a><p>
5860 Finally (and most embarrassingly), here are the permissions for the
5861 original e-book version of my last book, <em class="citetitle">The Future of
5862 Ideas</em>:
5863 </p><div class="figure"><a name="fig-1631"></a><p class="title"><b>Figure 10.16. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1631.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5864 No copying, no printing, and don't you dare try to listen to this book!
5865 </p><p>
5866 Now, the Adobe eBook Reader calls these controls
5867 <span class="quote">«<span class="quote">permissions</span>»</span>&#8212; as if the publisher has the power to control how
5868 you use these works.  For works under copyright, the copyright owner
5869 certainly does have the power&#8212;up to the limits of the copyright
5870 law. But for work not under copyright, there is no such copyright
5871 power.<a href="#ftn.idp9045808" class="footnote" name="idp9045808"><sup class="footnote">[138]</sup></a>
5872 When my e-book of <em class="citetitle">Middlemarch</em> says I have the
5873 permission to copy only ten text selections into the memory every ten
5874 days, what that really means is that the eBook Reader has enabled the
5875 publisher to control how I use the book on my computer, far beyond the
5876 control that the law would enable.
5877 </p><p>
5878 The control comes instead from the code&#8212;from the technology
5879 within which the e-book <span class="quote">«<span class="quote">lives.</span>»</span> Though the e-book says that these are
5880 permissions, they are not the sort of <span class="quote">«<span class="quote">permissions</span>»</span> that most of us
5881 deal with. When a teenager gets <span class="quote">«<span class="quote">permission</span>»</span> to stay out till
5882 midnight, she knows (unless she's Cinderella) that she can stay out
5883 till 2 A.M., but will suffer a punishment if she's caught. But when
5884 the Adobe eBook Reader says I have the permission to make ten copies
5885 of the text into the computer's memory, that means that after I've
5886 made ten copies, the computer will not make any more. The same with
5887 the printing restrictions: After ten pages, the eBook Reader will not
5888 print any more pages.  It's the same with the silly restriction that
5889 says that you can't use the Read Aloud button to read my book
5890 aloud&#8212;it's not that the company will sue you if you do; instead,
5891 if you push the Read Aloud button with my book, the machine simply
5892 won't read aloud.
5893 </p><a class="indexterm" name="idp9050096"></a><a class="indexterm" name="idp9051808"></a><p>
5894
5895 These are <span class="emphasis"><em>controls</em></span>, not permissions. Imagine a
5896 world where the Marx Brothers sold word processing software that, when
5897 you tried to type <span class="quote">«<span class="quote">Warner Brothers,</span>»</span> erased <span class="quote">«<span class="quote">Brothers</span>»</span> from the
5898 sentence.
5899 </p><p>
5900 This is the future of copyright law: not so much copyright
5901 <span class="emphasis"><em>law</em></span> as copyright <span class="emphasis"><em>code</em></span>. The
5902 controls over access to content will not be controls that are ratified
5903 by courts; the controls over access to content will be controls that
5904 are coded by programmers. And whereas the controls that are built into
5905 the law are always to be checked by a judge, the controls that are
5906 built into the technology have no similar built-in check.
5907 </p><p>
5908 How significant is this? Isn't it always possible to get around the
5909 controls built into the technology? Software used to be sold with
5910 technologies that limited the ability of users to copy the software,
5911 but those were trivial protections to defeat. Why won't it be trivial
5912 to defeat these protections as well?
5913 </p><p>
5914 We've only scratched the surface of this story. Return to the Adobe
5915 eBook Reader.
5916 </p><a class="indexterm" name="idxalicesadventuresinwonderlandcarroll"></a><a class="indexterm" name="idxpublicdomainebookrestrictionson2"></a><p>
5917 Early in the life of the Adobe eBook Reader, Adobe suffered a public
5918 relations nightmare. Among the books that you could download for free
5919 on the Adobe site was a copy of <em class="citetitle">Alice's Adventures in
5920 Wonderland</em>.  This wonderful book is in the public
5921 domain. Yet when you clicked on Permissions for that book, you got the
5922 following report:
5923 </p><div class="figure"><a name="fig-1641"></a><p class="title"><b>Figure 10.17. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1641.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5924 Here was a public domain children's book that you were not allowed to
5925 copy, not allowed to lend, not allowed to give, and, as the
5926 <span class="quote">«<span class="quote">permissions</span>»</span> indicated, not allowed to <span class="quote">«<span class="quote">read aloud</span>»</span>!
5927 </p><p>
5928 The public relations nightmare attached to that final permission.
5929 For the text did not say that you were not permitted to use the Read
5930 Aloud button; it said you did not have the permission to read the book
5931 aloud. That led some people to think that Adobe was restricting the
5932 right of parents, for example, to read the book to their children, which
5933 seemed, to say the least, absurd.
5934 </p><p>
5935 Adobe responded quickly that it was absurd to think that it was trying
5936 to restrict the right to read a book aloud. Obviously it was only
5937 restricting the ability to use the Read Aloud button to have the book
5938 read aloud. But the question Adobe never did answer is this: Would
5939 Adobe thus agree that a consumer was free to use software to hack
5940 around the restrictions built into the eBook Reader? If some company
5941 (call it Elcomsoft) developed a program to disable the technological
5942 protection built into an Adobe eBook so that a blind person, say,
5943 could use a computer to read the book aloud, would Adobe agree that
5944 such a use of an eBook Reader was fair? Adobe didn't answer because
5945 the answer, however absurd it might seem, is no.
5946 </p><a class="indexterm" name="idp9068960"></a><a class="indexterm" name="idp9070288"></a><p>
5947 The point is not to blame Adobe. Indeed, Adobe is among the most
5948 innovative companies developing strategies to balance open access to
5949 content with incentives for companies to innovate. But Adobe's
5950 technology enables control, and Adobe has an incentive to defend this
5951 control.  That incentive is understandable, yet what it creates is
5952 often crazy.
5953 </p><a class="indexterm" name="idp9072384"></a><a class="indexterm" name="idp9073584"></a><p>
5954 To see the point in a particularly absurd context, consider a favorite
5955 story of mine that makes the same point.
5956 </p><a class="indexterm" name="idxaibo1"></a><a class="indexterm" name="idxroboticdog1"></a><a class="indexterm" name="idxsonyaibo1"></a><p>
5957 Consider the robotic dog made by Sony named <span class="quote">«<span class="quote">Aibo.</span>»</span> The Aibo
5958 learns tricks, cuddles, and follows you around. It eats only electricity
5959 and that doesn't leave that much of a mess (at least in your house).
5960 </p><p>
5961 The Aibo is expensive and popular. Fans from around the world
5962 have set up clubs to trade stories. One fan in particular set up a Web
5963 site to enable information about the Aibo dog to be shared. This fan set
5964
5965 up aibopet.com (and aibohack.com, but that resolves to the same site),
5966 and on that site he provided information about how to teach an Aibo
5967 to do tricks in addition to the ones Sony had taught it.
5968 </p><p>
5969 <span class="quote">«<span class="quote">Teach</span>»</span> here has a special meaning. Aibos are just cute computers.
5970 You teach a computer how to do something by programming it
5971 differently.  So to say that aibopet.com was giving information about
5972 how to teach the dog to do new tricks is just to say that aibopet.com
5973 was giving information to users of the Aibo pet about how to hack
5974 their computer <span class="quote">«<span class="quote">dog</span>»</span> to make it do new tricks (thus, aibohack.com).
5975 </p><a class="indexterm" name="idp9084160"></a><p>
5976 If you're not a programmer or don't know many programmers, the word
5977 <em class="citetitle">hack</em> has a particularly unfriendly
5978 connotation. Nonprogrammers hack bushes or weeds. Nonprogrammers in
5979 horror movies do even worse. But to programmers, or coders, as I call
5980 them, <em class="citetitle">hack</em> is a much more positive
5981 term. <em class="citetitle">Hack</em> just means code that enables the
5982 program to do something it wasn't originally intended or enabled to
5983 do. If you buy a new printer for an old computer, you might find the
5984 old computer doesn't run, or <span class="quote">«<span class="quote">drive,</span>»</span> the printer. If you discovered
5985 that, you'd later be happy to discover a hack on the Net by someone
5986 who has written a driver to enable the computer to drive the printer
5987 you just bought.
5988 </p><p>
5989 Some hacks are easy. Some are unbelievably hard. Hackers as a
5990 community like to challenge themselves and others with increasingly
5991 difficult tasks. There's a certain respect that goes with the talent to hack
5992 well. There's a well-deserved respect that goes with the talent to hack
5993 ethically.
5994 </p><p>
5995 The Aibo fan was displaying a bit of both when he hacked the program
5996 and offered to the world a bit of code that would enable the Aibo to
5997 dance jazz. The dog wasn't programmed to dance jazz. It was a clever
5998 bit of tinkering that turned the dog into a more talented creature
5999 than Sony had built.
6000 </p><a class="indexterm" name="idp9089168"></a><a class="indexterm" name="idp9090480"></a><a class="indexterm" name="idp9091728"></a><p>
6001 I've told this story in many contexts, both inside and outside the
6002 United States. Once I was asked by a puzzled member of the audience,
6003 is it permissible for a dog to dance jazz in the United States? We
6004 forget that stories about the backcountry still flow across much of
6005 the
6006
6007
6008 world. So let's just be clear before we continue: It's not a crime
6009 anywhere (anymore) to dance jazz. Nor is it a crime to teach your dog
6010 to dance jazz. Nor should it be a crime (though we don't have a lot to
6011 go on here) to teach your robot dog to dance jazz. Dancing jazz is a
6012 completely legal activity. One imagines that the owner of aibopet.com
6013 thought, <span class="emphasis"><em>What possible problem could there be with teaching
6014 a robot dog to dance?</em></span>
6015 </p><a class="indexterm" name="idp9094880"></a><p>
6016 Let's put the dog to sleep for a minute, and turn to a pony show&#8212;
6017 not literally a pony show, but rather a paper that a Princeton academic
6018 named Ed Felten prepared for a conference. This Princeton academic
6019 is well known and respected. He was hired by the government in the
6020 Microsoft case to test Microsoft's claims about what could and could
6021 not be done with its own code. In that trial, he demonstrated both his
6022 brilliance and his coolness. Under heavy badgering by Microsoft
6023 lawyers, Ed Felten stood his ground. He was not about to be bullied
6024 into being silent about something he knew very well.
6025 </p><p>
6026 But Felten's bravery was really tested in April 2001.<a href="#ftn.idp9097392" class="footnote" name="idp9097392"><sup class="footnote">[139]</sup></a>
6027 He and a group of colleagues were working on a paper to be submitted
6028 at conference.  The paper was intended to describe the weakness in an
6029 encryption system being developed by the Secure Digital Music
6030 Initiative as a technique to control the distribution of music.
6031 </p><p>
6032 The SDMI coalition had as its goal a technology to enable content
6033 owners to exercise much better control over their content than the
6034 Internet, as it originally stood, granted them. Using encryption, SDMI
6035 hoped to develop a standard that would allow the content owner to say
6036 <span class="quote">«<span class="quote">this music cannot be copied,</span>»</span> and have a computer respect that
6037 command.  The technology was to be part of a <span class="quote">«<span class="quote">trusted system</span>»</span> of
6038 control that would get content owners to trust the system of the
6039 Internet much more.
6040 </p><p>
6041 When SDMI thought it was close to a standard, it set up a competition.
6042 In exchange for providing contestants with the code to an
6043 SDMI-encrypted bit of content, contestants were to try to crack it
6044 and, if they did, report the problems to the consortium.
6045 </p><p>
6046
6047 Felten and his team figured out the encryption system quickly. He and
6048 the team saw the weakness of this system as a type: Many encryption
6049 systems would suffer the same weakness, and Felten and his team
6050 thought it worthwhile to point this out to those who study encryption.
6051 </p><p>
6052 Let's review just what Felten was doing. Again, this is the United
6053 States. We have a principle of free speech. We have this principle not
6054 just because it is the law, but also because it is a really great
6055 idea. A strongly protected tradition of free speech is likely to
6056 encourage a wide range of criticism. That criticism is likely, in
6057 turn, to improve the systems or people or ideas criticized.
6058 </p><p>
6059 What Felten and his colleagues were doing was publishing a paper
6060 describing the weakness in a technology. They were not spreading free
6061 music, or building and deploying this technology. The paper was an
6062 academic essay, unintelligible to most people. But it clearly showed the
6063 weakness in the SDMI system, and why SDMI would not, as presently
6064 constituted, succeed.
6065 </p><a class="indexterm" name="idxaibo2"></a><a class="indexterm" name="idxroboticdog2"></a><a class="indexterm" name="idxsonyaibo2"></a><p>
6066 What links these two, aibopet.com and Felten, is the letters they
6067 then received. Aibopet.com received a letter from Sony about the
6068 aibopet.com hack. Though a jazz-dancing dog is perfectly legal, Sony
6069 wrote:
6070 </p><div class="blockquote"><blockquote class="blockquote"><p>
6071 Your site contains information providing the means to circumvent
6072 AIBO-ware's copy protection protocol constituting a violation of the
6073 anti-circumvention provisions of the Digital Millennium Copyright Act.
6074 </p></blockquote></div><a class="indexterm" name="idp9117200"></a><a class="indexterm" name="idp9118448"></a><a class="indexterm" name="idp9119760"></a><p>
6075 And though an academic paper describing the weakness in a system
6076 of encryption should also be perfectly legal, Felten received a letter
6077 from an RIAA lawyer that read:
6078 </p><div class="blockquote"><blockquote class="blockquote"><p>
6079 Any  disclosure of information gained from participating in the
6080
6081 Public Challenge would be outside the scope of activities permitted by
6082 the Agreement and could subject you and your research team to actions
6083 under the Digital Millennium Copyright Act (<span class="quote">«<span class="quote">DMCA</span>»</span>).
6084 </p></blockquote></div><p>
6085 In both cases, this weirdly Orwellian law was invoked to control the
6086 spread of information. The Digital Millennium Copyright Act made
6087 spreading such information an offense.
6088 </p><p>
6089 The DMCA was enacted as a response to copyright owners' first fear
6090 about cyberspace. The fear was that copyright control was effectively
6091 dead; the response was to find technologies that might compensate.
6092 These new technologies would be copyright protection
6093 technologies&#8212; technologies to control the replication and
6094 distribution of copyrighted material. They were designed as
6095 <span class="emphasis"><em>code</em></span> to modify the original
6096 <span class="emphasis"><em>code</em></span> of the Internet, to reestablish some
6097 protection for copyright owners.
6098 </p><p>
6099 The DMCA was a bit of law intended to back up the protection of this
6100 code designed to protect copyrighted material. It was, we could say,
6101 <span class="emphasis"><em>legal code</em></span> intended to buttress
6102 <span class="emphasis"><em>software code</em></span> which itself was intended to
6103 support the <span class="emphasis"><em>legal code of copyright</em></span>.
6104 </p><p>
6105 But the DMCA was not designed merely to protect copyrighted works to
6106 the extent copyright law protected them. Its protection, that is, did
6107 not end at the line that copyright law drew. The DMCA regulated
6108 devices that were designed to circumvent copyright protection
6109 measures. It was designed to ban those devices, whether or not the use
6110 of the copyrighted material made possible by that circumvention would
6111 have been a copyright violation.
6112 </p><a class="indexterm" name="idp9128400"></a><a class="indexterm" name="idp9129216"></a><a class="indexterm" name="idp9130032"></a><p>
6113 Aibopet.com and Felten make the point. The Aibo hack circumvented a
6114 copyright protection system for the purpose of enabling the dog to
6115 dance jazz. That enablement no doubt involved the use of copyrighted
6116 material. But as aibopet.com's site was noncommercial, and the use did
6117 not enable subsequent copyright infringements, there's no doubt that
6118 aibopet.com's hack was fair use of Sony's copyrighted material. Yet
6119 fair use is not a defense to the DMCA. The question is not whether the
6120
6121 use of the copyrighted material was a copyright violation. The question
6122 is whether a copyright protection system was circumvented.
6123 </p><p>
6124 The threat against Felten was more attenuated, but it followed the
6125 same line of reasoning. By publishing a paper describing how a
6126 copyright protection system could be circumvented, the RIAA lawyer
6127 suggested, Felten himself was distributing a circumvention technology.
6128 Thus, even though he was not himself infringing anyone's copyright,
6129 his academic paper was enabling others to infringe others' copyright.
6130 </p><a class="indexterm" name="idp9133296"></a><a class="indexterm" name="idxcassettevcrs2"></a><p>
6131 The bizarreness of these arguments is captured in a cartoon drawn in
6132 1981 by Paul Conrad. At that time, a court in California had held that
6133 the VCR could be banned because it was a copyright-infringing
6134 technology: It enabled consumers to copy films without the permission
6135 of the copyright owner. No doubt there were uses of the technology
6136 that were legal: Fred Rogers, aka <span class="quote">«<span class="quote"><em class="citetitle">Mr. Rogers</em>,</span>»</span>
6137 for example, had testified in that case that he wanted people to feel
6138 free to tape Mr. Rogers' Neighborhood.
6139 <a class="indexterm" name="idp9137312"></a>
6140 </p><div class="blockquote"><blockquote class="blockquote"><p>
6141 Some public stations, as well as commercial stations, program the
6142 <span class="quote">«<span class="quote">Neighborhood</span>»</span> at hours when some children cannot use it. I think that
6143 it's a real service to families to be able to record such programs and
6144 show them at appropriate times. I have always felt that with the
6145 advent of all of this new technology that allows people to tape the
6146 <span class="quote">«<span class="quote">Neighborhood</span>»</span> off-the-air, and I'm speaking for the <span class="quote">«<span class="quote">Neighborhood</span>»</span>
6147 because that's what I produce, that they then become much more active
6148 in the programming of their family's television life. Very frankly, I
6149 am opposed to people being programmed by others. My whole approach in
6150 broadcasting has always been <span class="quote">«<span class="quote">You are an important person just the way
6151 you are. You can make healthy decisions.</span>»</span> Maybe I'm going on too long,
6152 but I just feel that anything that allows a person to be more active
6153 in the control of his or her life, in a healthy way, is
6154 important.<a href="#ftn.idp9141328" class="footnote" name="idp9141328"><sup class="footnote">[140]</sup></a>
6155 </p></blockquote></div><p>
6156
6157 Even though there were uses that were legal, because there were
6158 some uses that were illegal, the court held the companies producing
6159 the VCR responsible.
6160 </p><p>
6161 This led Conrad to draw the cartoon in figure
6162 <a class="xref" href="#fig-1711-vcr-handgun-cartoonfig" title="Figure 10.18. &#8212; On which item have the courts ruled that manufacturers and retailers be held responsible for having supplied the equipment?">10.18</a>, which we can adopt to the
6163 DMCA.
6164 <a class="indexterm" name="idp9148176"></a>
6165 </p><p>
6166 No argument I have can top this picture, but let me try to get close.
6167 </p><p>
6168 The anticircumvention provisions of the DMCA target copyright
6169 circumvention technologies. Circumvention technologies can be used for
6170 different ends. They can be used, for example, to enable massive
6171 pirating of copyrighted material&#8212;a bad end. Or they can be used
6172 to enable the use of particular copyrighted materials in ways that
6173 would be considered fair use&#8212;a good end.
6174 </p><a class="indexterm" name="idxhandguns"></a><p>
6175 A handgun can be used to shoot a police officer or a child. Most
6176
6177 would agree such a use is bad. Or a handgun can be used for target
6178 practice or to protect against an intruder. At least some would say that
6179 such a use would be good. It, too, is a technology that has both good
6180 and bad uses.
6181 </p><div class="figure-float" style="float: left;"><div class="figure"><a name="fig-1711-vcr-handgun-cartoonfig"></a><p class="title"><b>Figure 10.18. &#8212; On which item have the courts ruled that manufacturers and
6182 retailers be held responsible for having supplied the
6183 equipment?</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="100%"><tr><td align="center"><img src="images/1711.png" align="middle" width="100%" alt="&#8212; On which item have the courts ruled that manufacturers and retailers be held responsible for having supplied the equipment?"></td></tr></table></div></div></div><br class="figure-break"></div><a class="indexterm" name="idp9155648"></a><p>
6184 The obvious point of Conrad's cartoon is the weirdness of a world
6185 where guns are legal, despite the harm they can do, while VCRs (and
6186 circumvention technologies) are illegal. Flash: <span class="emphasis"><em>No one ever
6187 died from copyright circumvention</em></span>. Yet the law bans circumvention
6188 technologies absolutely, despite the potential that they might do some
6189 good, but permits guns, despite the obvious and tragic harm they do.
6190 </p><a class="indexterm" name="idp9157680"></a><a class="indexterm" name="idp9158880"></a><a class="indexterm" name="idp9160128"></a><a class="indexterm" name="idp9160944"></a><a class="indexterm" name="idp9161760"></a><p>
6191 The Aibo and RIAA examples demonstrate how copyright owners are
6192 changing the balance that copyright law grants. Using code, copyright
6193 owners restrict fair use; using the DMCA, they punish those who would
6194 attempt to evade the restrictions on fair use that they impose through
6195 code. Technology becomes a means by which fair use can be erased; the
6196 law of the DMCA backs up that erasing.
6197 </p><p>
6198 This is how <span class="emphasis"><em>code</em></span> becomes
6199 <span class="emphasis"><em>law</em></span>. The controls built into the technology of
6200 copy and access protection become rules the violation of which is also
6201 a violation of the law. In this way, the code extends the
6202 law&#8212;increasing its regulation, even if the subject it regulates
6203 (activities that would otherwise plainly constitute fair use) is
6204 beyond the reach of the law. Code becomes law; code extends the law;
6205 code thus extends the control that copyright owners effect&#8212;at
6206 least for those copyright holders with the lawyers who can write the
6207 nasty letters that Felten and aibopet.com received.
6208 </p><p>
6209 There is one final aspect of the interaction between architecture and
6210 law that contributes to the force of copyright's regulation. This is
6211 the ease with which infringements of the law can be detected. For
6212 contrary to the rhetoric common at the birth of cyberspace that on the
6213 Internet, no one knows you're a dog, increasingly, given changing
6214 technologies deployed on the Internet, it is easy to find the dog who
6215 committed a legal wrong. The technologies of the Internet are open to
6216 snoops as well as sharers, and the snoops are increasingly good at
6217 tracking down the identity of those who violate the rules.
6218 </p><p>
6219
6220
6221 For example, imagine you were part of a <em class="citetitle">Star Trek</em> fan club. You
6222 gathered every month to share trivia, and maybe to enact a kind of fan
6223 fiction about the show. One person would play Spock, another, Captain
6224 Kirk. The characters would begin with a plot from a real story, then
6225 simply continue it.<a href="#ftn.idp9167808" class="footnote" name="idp9167808"><sup class="footnote">[141]</sup></a>
6226 </p><p>
6227 Before the Internet, this was, in effect, a totally unregulated
6228 activity.  No matter what happened inside your club room, you would
6229 never be interfered with by the copyright police. You were free in
6230 that space to do as you wished with this part of our culture. You were
6231 allowed to build on it as you wished without fear of legal control.
6232 </p><a class="indexterm" name="idp9170528"></a><p>
6233 But if you moved your club onto the Internet, and made it generally
6234 available for others to join, the story would be very different. Bots
6235 scouring the Net for trademark and copyright infringement would
6236 quickly find your site. Your posting of fan fiction, depending upon
6237 the ownership of the series that you're depicting, could well inspire
6238 a lawyer's threat. And ignoring the lawyer's threat would be extremely
6239 costly indeed.  The law of copyright is extremely efficient. The
6240 penalties are severe, and the process is quick.
6241 </p><p>
6242 This change in the effective force of the law is caused by a change
6243 in the ease with which the law can be enforced. That change too shifts
6244 the law's balance radically. It is as if your car transmitted the speed at
6245 which you traveled at every moment that you drove; that would be just
6246 one step before the state started issuing tickets based upon the data you
6247 transmitted. That is, in effect, what is happening here.
6248 </p></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="marketconcentration"></a>10.7. Market: Concentration</h2></div></div></div><p>
6249 So copyright's duration has increased dramatically&#8212;tripled in
6250 the past thirty years. And copyright's scope has increased as
6251 well&#8212;from regulating only publishers to now regulating just
6252 about everyone. And copyright's reach has changed, as every action
6253 becomes a copy and hence presumptively regulated. And as technologists
6254 find better ways
6255
6256 to control the use of content, and as copyright is increasingly
6257 enforced through technology, copyright's force changes, too. Misuse is
6258 easier to find and easier to control. This regulation of the creative
6259 process, which began as a tiny regulation governing a tiny part of the
6260 market for creative work, has become the single most important
6261 regulator of creativity there is. It is a massive expansion in the
6262 scope of the government's control over innovation and creativity; it
6263 would be totally unrecognizable to those who gave birth to copyright's
6264 control.
6265 </p><p>
6266 Still, in my view, all of these changes would not matter much if it
6267 weren't for one more change that we must also consider. This is a
6268 change that is in some sense the most familiar, though its significance
6269 and scope are not well understood. It is the one that creates precisely the
6270 reason to be concerned about all the other changes I have described.
6271 </p><p>
6272 This is the change in the concentration and integration of the media.
6273 In the past twenty years, the nature of media ownership has undergone
6274 a radical alteration, caused by changes in legal rules governing the
6275 media.  Before this change happened, the different forms of media were
6276 owned by separate media companies. Now, the media is increasingly
6277 owned by only a few companies. Indeed, after the changes that the FCC
6278 announced in June 2003, most expect that within a few years, we will
6279 live in a world where just three companies control more than 85 percent
6280 of the media.
6281 </p><p>
6282 These changes are of two sorts: the scope of concentration, and its
6283 nature.
6284 </p><a class="indexterm" name="idp9178240"></a><a class="indexterm" name="idp9179024"></a><a class="indexterm" name="idp9179856"></a><a class="indexterm" name="idp9180640"></a><a class="indexterm" name="idp9181456"></a><a class="indexterm" name="idp9182272"></a><p>
6285 Changes in scope are the easier ones to describe. As Senator John
6286 McCain summarized the data produced in the FCC's review of media
6287 ownership, <span class="quote">«<span class="quote">five companies control 85 percent of our media sources.</span>»</span><a href="#ftn.idp9183760" class="footnote" name="idp9183760"><sup class="footnote">[142]</sup></a>
6288 The five recording labels of Universal Music Group, BMG, Sony Music
6289 Entertainment, Warner Music Group, and EMI control 84.8 percent of the
6290 U.S. music market.<a href="#ftn.idp9184976" class="footnote" name="idp9184976"><sup class="footnote">[143]</sup></a>
6291 The <span class="quote">«<span class="quote">five largest cable companies pipe
6292 programming to 74 percent of the cable subscribers nationwide.</span>»</span><a href="#ftn.idp9187104" class="footnote" name="idp9187104"><sup class="footnote">[144]</sup></a>
6293 </p><p>
6294 The story with radio is even more dramatic. Before deregulation,
6295 the nation's largest radio broadcasting conglomerate owned fewer than
6296
6297 seventy-five stations. Today <span class="emphasis"><em>one</em></span> company owns
6298 more than 1,200 stations.  During that period of consolidation, the
6299 total number of radio owners dropped by 34 percent. Today, in most
6300 markets, the two largest broadcasters control 74 percent of that
6301 market's revenues. Overall, just four companies control 90 percent of
6302 the nation's radio advertising revenues.
6303 </p><a class="indexterm" name="idp9190608"></a><p>
6304 Newspaper ownership is becoming more concentrated as well.  Today,
6305 there are six hundred fewer daily newspapers in the United States than
6306 there were eighty years ago, and ten companies control half of the
6307 nation's circulation. There are twenty major newspaper publishers in
6308 the United States. The top ten film studios receive 99 percent of all
6309 film revenue. The ten largest cable companies account for 85 percent
6310 of all cable revenue. This is a market far from the free press the
6311 framers sought to protect. Indeed, it is a market that is quite well
6312 protected&#8212; by the market.
6313 </p><a class="indexterm" name="idp9191648"></a><p>
6314 Concentration in size alone is one thing. The more invidious
6315 change is in the nature of that concentration. As author James Fallows
6316 put it in a recent article about Rupert Murdoch,
6317 </p><div class="blockquote"><blockquote class="blockquote"><p>
6318 Murdoch's companies now constitute a production system
6319 unmatched in its integration. They supply content&#8212;Fox movies
6320 &#8230;  Fox TV shows &#8230; Fox-controlled sports broadcasts, plus
6321 newspapers and books. They sell the content to the public and to
6322 advertisers&#8212;in newspapers, on the broadcast network, on the
6323 cable channels. And they operate the physical distribution system
6324 through which the content reaches the customers. Murdoch's satellite
6325 systems now distribute News Corp. content in Europe and Asia; if
6326 Murdoch becomes DirecTV's largest single owner, that system will serve
6327 the same function in the United States.<a href="#ftn.idp9194448" class="footnote" name="idp9194448"><sup class="footnote">[145]</sup></a>
6328 </p></blockquote></div><p>
6329 The pattern with Murdoch is the pattern of modern media. Not
6330 just large companies owning many radio stations, but a few companies
6331 owning as many outlets of media as possible. A picture describes this
6332 pattern better than a thousand words could do:
6333 </p><div class="figure"><a name="fig-1761-pattern-modern-media-ownership"></a><p class="title"><b>Figure 10.19. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="90%"><tr><td align="center"><img src="images/pattern-modern-media-ownership.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
6334
6335 Does this concentration matter? Will it affect what is made, or
6336 what is distributed? Or is it merely a more efficient way to produce and
6337 distribute content?
6338 </p><p>
6339 My view was that concentration wouldn't matter. I thought it was
6340 nothing more than a more efficient financial structure. But now, after
6341 reading and listening to a barrage of creators try to convince me to the
6342 contrary, I am beginning to change my mind.
6343 </p><p>
6344 Here's a representative story that begins to suggest how this
6345 integration may matter.
6346 </p><a class="indexterm" name="idp9202848"></a><a class="indexterm" name="idp9203632"></a><a class="indexterm" name="idp9204416"></a><p>
6347 In 1969, Norman Lear created a pilot for <em class="citetitle">All in the Family</em>. He took
6348 the pilot to ABC. The network didn't like it. It was too edgy, they told
6349 Lear. Make it again. Lear made a second pilot, more edgy than the
6350 first. ABC was exasperated. You're missing the point, they told Lear.
6351 We wanted less edgy, not more.
6352 </p><p>
6353 Rather than comply, Lear simply took the show elsewhere. CBS
6354 was happy to have the series; ABC could not stop Lear from walking.
6355 The copyrights that Lear held assured an independence from network
6356 control.<a href="#ftn.idp9206848" class="footnote" name="idp9206848"><sup class="footnote">[146]</sup></a>
6357 </p><p>
6358
6359
6360 The network did not control those copyrights because the law forbade
6361 the networks from controlling the content they syndicated. The law
6362 required a separation between the networks and the content producers;
6363 that separation would guarantee Lear freedom. And as late as 1992,
6364 because of these rules, the vast majority of prime time
6365 television&#8212;75 percent of it&#8212;was <span class="quote">«<span class="quote">independent</span>»</span> of the
6366 networks.
6367 </p><p>
6368 In 1994, the FCC abandoned the rules that required this independence.
6369 After that change, the networks quickly changed the balance.  In 1985,
6370 there were twenty-five independent television production studios; in
6371 2002, only five independent television studios remained. <span class="quote">«<span class="quote">In 1992,
6372 only 15 percent of new series were produced for a network by a company
6373 it controlled. Last year, the percentage of shows produced by
6374 controlled companies more than quintupled to 77 percent.</span>»</span> <span class="quote">«<span class="quote">In 1992, 16
6375 new series were produced independently of conglomerate control, last
6376 year there was one.</span>»</span><a href="#ftn.idp9213456" class="footnote" name="idp9213456"><sup class="footnote">[147]</sup></a>
6377 In 2002, 75 percent of prime time television was owned by the networks
6378 that ran it. <span class="quote">«<span class="quote">In the ten-year period between 1992 and 2002, the number
6379 of prime time television hours per week produced by network studios
6380 increased over 200%, whereas the number of prime time television hours
6381 per week produced by independent studios decreased
6382 63%.</span>»</span><a href="#ftn.idp9216000" class="footnote" name="idp9216000"><sup class="footnote">[148]</sup></a>
6383 </p><a class="indexterm" name="idp9216992"></a><p>
6384 Today, another Norman Lear with another <em class="citetitle">All in the Family</em> would
6385 find that he had the choice either to make the show less edgy or to be
6386 fired: The content of any show developed for a network is increasingly
6387 owned by the network.
6388 </p><a class="indexterm" name="idp9218864"></a><a class="indexterm" name="idp9219680"></a><p>
6389 While the number of channels has increased dramatically, the ownership
6390 of those channels has narrowed to an ever smaller and smaller few. As
6391 Barry Diller said to Bill Moyers,
6392 </p><div class="blockquote"><blockquote class="blockquote"><p>
6393 Well, if you have companies that produce, that finance, that air on
6394 their channel and then distribute worldwide everything that goes
6395 through their controlled distribution system, then what you get is
6396 fewer and fewer actual voices participating in the process. [We
6397
6398 u]sed to have dozens and dozens of thriving independent production
6399 companies producing television programs. Now you have less than a
6400 handful.<a href="#ftn.idp9222352" class="footnote" name="idp9222352"><sup class="footnote">[149]</sup></a>
6401 </p></blockquote></div><p>
6402 This narrowing has an effect on what is produced. The product of such
6403 large and concentrated networks is increasingly homogenous.
6404 Increasingly safe. Increasingly sterile. The product of news shows
6405 from networks like this is increasingly tailored to the message the
6406 network wants to convey. This is not the communist party, though from
6407 the inside, it must feel a bit like the communist party. No one can
6408 question without risk of consequence&#8212;not necessarily banishment
6409 to Siberia, but punishment nonetheless. Independent, critical,
6410 different views are quashed. This is not the environment for a
6411 democracy.
6412 </p><a class="indexterm" name="idp9225312"></a><p>
6413 Economics itself offers a parallel that explains why this integration
6414 affects creativity. Clay Christensen has written about the <span class="quote">«<span class="quote">Innovator's
6415 Dilemma</span>»</span>: the fact that large traditional firms find it rational to ignore
6416 new, breakthrough technologies that compete with their core business.
6417 The same analysis could help explain why large, traditional media
6418 companies would find it rational to ignore new cultural trends.<a href="#ftn.idp9228016" class="footnote" name="idp9228016"><sup class="footnote">[150]</sup></a>
6419
6420 Lumbering giants not only don't, but should not, sprint. Yet if the
6421 field is only open to the giants, there will be far too little
6422 sprinting.
6423 <a class="indexterm" name="idp9231424"></a>
6424 </p><p>
6425 I don't think we know enough about the economics of the media
6426 market to say with certainty what concentration and integration will
6427 do. The efficiencies are important, and the effect on culture is hard to
6428 measure.
6429 </p><p>
6430 But there is a quintessentially obvious example that does strongly
6431 suggest the concern.
6432 </p><p>
6433 In addition to the copyright wars, we're in the middle of the drug
6434 wars. Government policy is strongly directed against the drug cartels;
6435 criminal and civil courts are filled with the consequences of this battle.
6436 </p><p>
6437 Let me hereby disqualify myself from any possible appointment to
6438 any position in government by saying I believe this war is a profound
6439 mistake. I am not pro drugs. Indeed, I come from a family once
6440
6441
6442 wrecked by drugs&#8212;though the drugs that wrecked my family were
6443 all quite legal. I believe this war is a profound mistake because the
6444 collateral damage from it is so great as to make waging the war
6445 insane.  When you add together the burdens on the criminal justice
6446 system, the desperation of generations of kids whose only real
6447 economic opportunities are as drug warriors, the queering of
6448 constitutional protections because of the constant surveillance this
6449 war requires, and, most profoundly, the total destruction of the legal
6450 systems of many South American nations because of the power of the
6451 local drug cartels, I find it impossible to believe that the marginal
6452 benefit in reduced drug consumption by Americans could possibly
6453 outweigh these costs.
6454 </p><p>
6455 You may not be convinced. That's fine. We live in a democracy, and it
6456 is through votes that we are to choose policy. But to do that, we
6457 depend fundamentally upon the press to help inform Americans about
6458 these issues.
6459 </p><a class="indexterm" name="idxadvertising3"></a><a class="indexterm" name="idxcommercials"></a><a class="indexterm" name="idxtelevisionadvertisingon"></a><a class="indexterm" name="idp9241264"></a><p>
6460 Beginning in 1998, the Office of National Drug Control Policy launched
6461 a media campaign as part of the <span class="quote">«<span class="quote">war on drugs.</span>»</span> The campaign produced
6462 scores of short film clips about issues related to illegal drugs. In
6463 one series (the Nick and Norm series) two men are in a bar, discussing
6464 the idea of legalizing drugs as a way to avoid some of the collateral
6465 damage from the war. One advances an argument in favor of drug
6466 legalization. The other responds in a powerful and effective way
6467 against the argument of the first. In the end, the first guy changes
6468 his mind (hey, it's television). The plug at the end is a damning
6469 attack on the pro-legalization campaign.
6470 </p><p>
6471 Fair enough. It's a good ad. Not terribly misleading. It delivers its
6472 message well. It's a fair and reasonable message.
6473 </p><p>
6474 But let's say you think it is a wrong message, and you'd like to run a
6475 countercommercial. Say you want to run a series of ads that try to
6476 demonstrate the extraordinary collateral harm that comes from the drug
6477 war. Can you do it?
6478 </p><p>
6479 Well, obviously, these ads cost lots of money. Assume you raise the
6480
6481 money. Assume a group of concerned citizens donates all the money in
6482 the world to help you get your message out. Can you be sure your
6483 message will be heard then?
6484 </p><a class="indexterm" name="idp9245648"></a><a class="indexterm" name="idp9246720"></a><a class="indexterm" name="idp9247536"></a><a class="indexterm" name="idp9248656"></a><p>
6485 No. You cannot. Television stations have a general policy of avoiding
6486 <span class="quote">«<span class="quote">controversial</span>»</span> ads. Ads sponsored by the government are deemed
6487 uncontroversial; ads disagreeing with the government are
6488 controversial.  This selectivity might be thought inconsistent with
6489 the First Amendment, but the Supreme Court has held that stations have
6490 the right to choose what they run. Thus, the major channels of
6491 commercial media will refuse one side of a crucial debate the
6492 opportunity to present its case.  And the courts will defend the
6493 rights of the stations to be this biased.<a href="#ftn.idp9251008" class="footnote" name="idp9251008"><sup class="footnote">[151]</sup></a>
6494 </p><a class="indexterm" name="idp9263520"></a><a class="indexterm" name="idp9264768"></a><p>
6495 I'd be happy to defend the networks' rights, as well&#8212;if we lived
6496 in a media market that was truly diverse. But concentration in the
6497 media throws that condition into doubt. If a handful of companies
6498 control access to the media, and that handful of companies gets to
6499 decide which political positions it will allow to be promoted on its
6500 channels, then in an obvious and important way, concentration
6501 matters. You might like the positions the handful of companies
6502 selects. But you should not like a world in which a mere few get to
6503 decide which issues the rest of us get to know about.
6504 </p><a class="indexterm" name="idp9267184"></a></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="together"></a>10.8. Together</h2></div></div></div><p>
6505 There is something innocent and obvious about the claim of the
6506 copyright warriors that the government should <span class="quote">«<span class="quote">protect my property.</span>»</span>
6507 In the abstract, it is obviously true and, ordinarily, totally
6508 harmless. No sane sort who is not an anarchist could disagree.
6509 </p><p>
6510 But when we see how dramatically this <span class="quote">«<span class="quote">property</span>»</span> has changed&#8212;
6511 when we recognize how it might now interact with both technology and
6512 markets to mean that the effective constraint on the liberty to
6513 cultivate our culture is dramatically different&#8212;the claim begins
6514 to seem
6515
6516
6517 less innocent and obvious. Given (1) the power of technology to
6518 supplement the law's control, and (2) the power of concentrated
6519 markets to weaken the opportunity for dissent, if strictly enforcing
6520 the massively expanded <span class="quote">«<span class="quote">property</span>»</span> rights granted by copyright
6521 fundamentally changes the freedom within this culture to cultivate and
6522 build upon our past, then we have to ask whether this property should
6523 be redefined.
6524 </p><p>
6525 Not starkly. Or absolutely. My point is not that we should abolish
6526 copyright or go back to the eighteenth century. That would be a total
6527 mistake, disastrous for the most important creative enterprises within
6528 our culture today.
6529 </p><p>
6530 But there is a space between zero and one, Internet culture
6531 notwithstanding.  And these massive shifts in the effective power of
6532 copyright regulation, tied to increased concentration of the content
6533 industry and resting in the hands of technology that will increasingly
6534 enable control over the use of culture, should drive us to consider
6535 whether another adjustment is called for. Not an adjustment that
6536 increases copyright's power. Not an adjustment that increases its
6537 term. Rather, an adjustment to restore the balance that has
6538 traditionally defined copyright's regulation&#8212;a weakening of that
6539 regulation, to strengthen creativity.
6540 </p><p>
6541 Copyright law has not been a rock of Gibraltar. It's not a set of
6542 constant commitments that, for some mysterious reason, teenagers and
6543 geeks now flout. Instead, copyright power has grown dramatically in a
6544 short period of time, as the technologies of distribution and creation
6545 have changed and as lobbyists have pushed for more control by
6546 copyright holders. Changes in the past in response to changes in
6547 technology suggest that we may well need similar changes in the
6548 future. And these changes have to be <span class="emphasis"><em>reductions</em></span>
6549 in the scope of copyright, in response to the extraordinary increase
6550 in control that technology and the market enable.
6551 </p><p>
6552 For the single point that is lost in this war on pirates is a point that
6553 we see only after surveying the range of these changes. When you add
6554
6555 together the effect of changing law, concentrated markets, and
6556 changing technology, together they produce an astonishing conclusion:
6557 <span class="emphasis"><em>Never in our history have fewer had a legal right to control
6558 more of the development of our culture than now</em></span>.
6559 </p><p>
6560 Not when copyrights were perpetual, for when copyrights were
6561 perpetual, they affected only that precise creative work. Not when
6562 only publishers had the tools to publish, for the market then was much
6563 more diverse. Not when there were only three television networks, for
6564 even then, newspapers, film studios, radio stations, and publishers
6565 were independent of the networks. <span class="emphasis"><em>Never</em></span> has
6566 copyright protected such a wide range of rights, against as broad a
6567 range of actors, for a term that was remotely as long. This form of
6568 regulation&#8212;a tiny regulation of a tiny part of the creative
6569 energy of a nation at the founding&#8212;is now a massive regulation
6570 of the overall creative process. Law plus technology plus the market
6571 now interact to turn this historically benign regulation into the most
6572 significant regulation of culture that our free society has
6573 known.<a href="#ftn.idp9278736" class="footnote" name="idp9278736"><sup class="footnote">[152]</sup></a>
6574 </p><p>
6575 <span class="strong"><strong>This has been</strong></span> a long chapter. Its
6576 point can now be briefly stated.
6577 </p><p>
6578 At the start of this book, I distinguished between commercial and
6579 noncommercial culture. In the course of this chapter, I have
6580 distinguished between copying a work and transforming it. We can now
6581 combine these two distinctions and draw a clear map of the changes
6582 that copyright law has undergone.  In 1790, the law looked like this:
6583 </p><div class="informaltable"><a name="t2"></a><table border="1"><colgroup><col><col><col></colgroup><thead><tr><th align="left"> </th><th align="left">PUBLISH</th><th align="left">TRANSFORM</th></tr></thead><tbody><tr><td align="left">Commercial</td><td align="left">©</td><td align="left">Free</td></tr><tr><td align="left">Noncommercial</td><td align="left">Free</td><td align="left">Free</td></tr></tbody></table></div><p>
6584 The act of publishing a map, chart, and book was regulated by
6585 copyright law. Nothing else was. Transformations were free. And as
6586 copyright attached only with registration, and only those who intended
6587
6588
6589 to benefit commercially would register, copying through publishing of
6590 noncommercial work was also free.
6591 </p><p>
6592 By the end of the nineteenth century, the law had changed to this:
6593 </p><div class="informaltable"><a name="t3"></a><table border="1"><colgroup><col><col><col></colgroup><thead><tr><th align="left"> </th><th align="left">PUBLISH</th><th align="left">TRANSFORM</th></tr></thead><tbody><tr><td align="left">Commercial</td><td align="left">©</td><td align="left">©</td></tr><tr><td align="left">Noncommercial</td><td align="left">Free</td><td align="left">Free</td></tr></tbody></table></div><p>
6594 Derivative works were now regulated by copyright law&#8212;if
6595 published, which again, given the economics of publishing at the time,
6596 means if offered commercially. But noncommercial publishing and
6597 transformation were still essentially free.
6598 </p><p>
6599 In 1909 the law changed to regulate copies, not publishing, and after
6600 this change, the scope of the law was tied to technology. As the
6601 technology of copying became more prevalent, the reach of the law
6602 expanded.  Thus by 1975, as photocopying machines became more common,
6603 we could say the law began to look like this:
6604 </p><div class="informaltable"><a name="t4"></a><table border="1"><colgroup><col><col><col></colgroup><thead><tr><th align="left"> </th><th align="left">COPY</th><th align="left">TRANSFORM</th></tr></thead><tbody><tr><td align="left">Commercial</td><td align="left">©</td><td align="left">©</td></tr><tr><td align="left">Noncommercial</td><td align="left">© / Free</td><td align="left">Free</td></tr></tbody></table></div><p>
6605 The law was interpreted to reach noncommercial copying through, say,
6606 copy machines, but still much of copying outside of the commercial
6607 market remained free. But the consequence of the emergence of digital
6608 technologies, especially in the context of a digital network, means
6609 that the law now looks like this:
6610 </p><div class="informaltable"><a name="t5"></a><table border="1"><colgroup><col><col><col></colgroup><thead><tr><th align="left"> </th><th align="left">COPY</th><th align="left">TRANSFORM</th></tr></thead><tbody><tr><td align="left">Commercial</td><td align="left">©</td><td align="left">©</td></tr><tr><td align="left">Noncommercial</td><td align="left">©</td><td align="left">©</td></tr></tbody></table></div><p>
6611 Every realm is governed by copyright law, whereas before most
6612 creativity was not. The law now regulates the full range of
6613 creativity&#8212;
6614
6615 commercial or not, transformative or not&#8212;with the same rules
6616 designed to regulate commercial publishers.
6617 </p><p>
6618 Obviously, copyright law is not the enemy. The enemy is regulation
6619 that does no good. So the question that we should be asking just now
6620 is whether extending the regulations of copyright law into each of
6621 these domains actually does any good.
6622 </p><p>
6623 I have no doubt that it does good in regulating commercial copying.
6624 But I also have no doubt that it does more harm than good when
6625 regulating (as it regulates just now) noncommercial copying and,
6626 especially, noncommercial transformation. And increasingly, for the
6627 reasons sketched especially in chapters
6628 <a class="xref" href="#recorders" title="Chapter 7. Chapter Seven: Recorders">7</a> and
6629 <a class="xref" href="#transformers" title="Chapter 8. Chapter Eight: Transformers">8</a>, one
6630 might well wonder whether it does more harm than good for commercial
6631 transformation.  More commercial transformative work would be created
6632 if derivative rights were more sharply restricted.
6633 </p><p>
6634 The issue is therefore not simply whether copyright is property. Of
6635 course copyright is a kind of <span class="quote">«<span class="quote">property,</span>»</span> and of course, as with any
6636 property, the state ought to protect it. But first impressions
6637 notwithstanding, historically, this property right (as with all
6638 property rights<a href="#ftn.idp9321152" class="footnote" name="idp9321152"><sup class="footnote">[153]</sup></a>)
6639 has been crafted to balance the important need to give authors and
6640 artists incentives with the equally important need to assure access to
6641 creative work. This balance has always been struck in light of new
6642 technologies.  And for almost half of our tradition, the <span class="quote">«<span class="quote">copyright</span>»</span>
6643 did not control <span class="emphasis"><em>at all</em></span> the freedom of others to
6644 build upon or transform a creative work. American culture was born
6645 free, and for almost 180 years our country consistently protected a
6646 vibrant and rich free culture.
6647 </p><a class="indexterm" name="idp9325488"></a><p>
6648 We achieved that free culture because our law respected important
6649 limits on the scope of the interests protected by <span class="quote">«<span class="quote">property.</span>»</span> The very
6650 birth of <span class="quote">«<span class="quote">copyright</span>»</span> as a statutory right recognized those limits, by
6651 granting copyright owners protection for a limited time only (the
6652 story of chapter <a class="xref" href="#founders" title="Chapter 6. Chapter Six: Founders">6</a>). The tradition of <span class="quote">«<span class="quote">fair use</span>»</span> is
6653 animated by a similar concern that is increasingly under strain as the
6654 costs of exercising any fair use right become unavoidably high (the
6655 story of chapter <a class="xref" href="#recorders" title="Chapter 7. Chapter Seven: Recorders">7</a>). Adding
6656
6657 statutory rights where markets might stifle innovation is another
6658 familiar limit on the property right that copyright is (chapter <a class="xref" href="#transformers" title="Chapter 8. Chapter Eight: Transformers">8</a>). And
6659 granting archives and libraries a broad freedom to collect, claims of
6660 property notwithstanding, is a crucial part of guaranteeing the soul
6661 of a culture (chapter <a class="xref" href="#collectors" title="Chapter 9. Chapter Nine: Collectors">9</a>). Free cultures, like free markets, are built
6662 with property. But the nature of the property that builds a free
6663 culture is very different from the extremist vision that dominates the
6664 debate today.
6665 </p><p>
6666 Free culture is increasingly the casualty in this war on piracy. In
6667 response to a real, if not yet quantified, threat that the
6668 technologies of the Internet present to twentieth-century business
6669 models for producing and distributing culture, the law and technology
6670 are being transformed in a way that will undermine our tradition of
6671 free culture. The property right that is copyright is no longer the
6672 balanced right that it was, or was intended to be. The property right
6673 that is copyright has become unbalanced, tilted toward an extreme. The
6674 opportunity to create and transform becomes weakened in a world in
6675 which creation requires permission and creativity must check with a
6676 lawyer.
6677 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8464704" class="footnote"><p><a href="#idp8464704" class="para"><sup class="para">[118] </sup></a>
6678
6679 Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R.
6680 4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the
6681 Subcommittee on Courts, Civil Liberties, and the Administration of
6682 Justice of the Committee on the Judiciary of the House of
6683 Representatives, 97th Cong., 2nd sess. (1982): 65 (testimony of Jack
6684 Valenti).
6685 </p></div><div id="ftn.idp8472032" class="footnote"><p><a href="#idp8472032" class="para"><sup class="para">[119] </sup></a>
6686
6687 Lawyers speak of <span class="quote">«<span class="quote">property</span>»</span> not as an absolute thing, but as a bundle
6688 of rights that are sometimes associated with a particular
6689 object. Thus, my <span class="quote">«<span class="quote">property right</span>»</span> to my car gives me the right to
6690 exclusive use, but not the right to drive at 150 miles an hour. For
6691 the best effort to connect the ordinary meaning of <span class="quote">«<span class="quote">property</span>»</span> to
6692 <span class="quote">«<span class="quote">lawyer talk,</span>»</span> see Bruce Ackerman, <em class="citetitle">Private Property and the
6693 Constitution</em> (New Haven: Yale University Press, 1977), 26&#8211;27.
6694 </p></div><div id="ftn.idp8534448" class="footnote"><p><a href="#idp8534448" class="para"><sup class="para">[120] </sup></a>
6695
6696 By describing the way law affects the other three modalities, I don't
6697 mean to suggest that the other three don't affect law. Obviously, they
6698 do. Law's only distinction is that it alone speaks as if it has a
6699 right self-consciously to change the other three. The right of the
6700 other three is more timidly expressed.  See Lawrence Lessig, <em class="citetitle">Code: And
6701 Other Laws of Cyberspace</em> (New York: Basic Books, 1999): 90&#8211;95;
6702 Lawrence Lessig, <span class="quote">«<span class="quote">The New Chicago School,</span>»</span> <em class="citetitle">Journal of Legal Studies</em>,
6703 June 1998.
6704 </p></div><div id="ftn.idp8544528" class="footnote"><p><a href="#idp8544528" class="para"><sup class="para">[121] </sup></a>
6705
6706 Some people object to this way of talking about <span class="quote">«<span class="quote">liberty.</span>»</span> They object
6707 because their focus when considering the constraints that exist at any
6708 particular moment are constraints imposed exclusively by the
6709 government. For instance, if a storm destroys a bridge, these people
6710 think it is meaningless to say that one's liberty has been
6711 restrained. A bridge has washed out, and it's harder to get from one
6712 place to another. To talk about this as a loss of freedom, they say,
6713 is to confuse the stuff of politics with the vagaries of ordinary
6714 life.  I don't mean to deny the value in this narrower view, which
6715 depends upon the context of the inquiry. I do, however, mean to argue
6716 against any insistence that this narrower view is the only proper view
6717 of liberty. As I argued in <em class="citetitle">Code</em>, we come from a
6718 long tradition of political thought with a broader focus than the
6719 narrow question of what the government did when.  John Stuart Mill
6720 defended freedom of speech, for example, from the tyranny of narrow
6721 minds, not from the fear of government prosecution; John Stuart Mill,
6722 <em class="citetitle">On Liberty</em> (Indiana: Hackett Publishing Co.,
6723 1978), 19.  John R. Commons famously defended the economic freedom of
6724 labor from constraints imposed by the market; John R. Commons, <span class="quote">«<span class="quote">The
6725 Right to Work,</span>»</span> in Malcom Rutherford and Warren J. Samuels, eds.,
6726 <em class="citetitle">John R. Commons: Selected Essays</em> (London:
6727 Routledge: 1997), 62. The Americans with Disabilities Act increases
6728 the liberty of people with physical disabilities by changing the
6729 architecture of certain public places, thereby making access to those
6730 places easier; 42 <em class="citetitle">United States Code</em>, section
6731 12101 (2000).  Each of these interventions to change existing
6732 conditions changes the liberty of a particular group. The effect of
6733 those interventions should be accounted for in order to understand the
6734 effective liberty that each of these groups might face.
6735 <a class="indexterm" name="idp8549760"></a>
6736 <a class="indexterm" name="idp8550592"></a>
6737 <a class="indexterm" name="idp8551408"></a>
6738 <a class="indexterm" name="idp8552256"></a>
6739 </p></div><div id="ftn.idp8601504" class="footnote"><p><a href="#idp8601504" class="para"><sup class="para">[122] </sup></a>
6740
6741 See Geoffrey Smith, <span class="quote">«<span class="quote">Film vs. Digital: Can Kodak Build a Bridge?</span>»</span>
6742 BusinessWeek online, 2 August 1999, available at
6743 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #23</a>. For a more
6744 recent analysis of Kodak's place in the market, see Chana
6745 R. Schoenberger, <span class="quote">«<span class="quote">Can Kodak Make Up for Lost Moments?</span>»</span> Forbes.com, 6
6746 October 2003, available at
6747 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #24</a>.
6748 </p></div><div id="ftn.idp8614704" class="footnote"><p><a href="#idp8614704" class="para"><sup class="para">[123] </sup></a>
6749
6750 Fred Warshofsky, <em class="citetitle">The Patent Wars</em> (New York: Wiley, 1994), 170&#8211;71.
6751 </p></div><div id="ftn.idp8645344" class="footnote"><p><a href="#idp8645344" class="para"><sup class="para">[124] </sup></a>
6752
6753 See, for example, James Boyle, <span class="quote">«<span class="quote">A Politics of Intellectual Property:
6754 Environmentalism for the Net?</span>»</span> <em class="citetitle">Duke Law Journal</em> 47 (1997): 87.
6755 </p></div><div id="ftn.idp8714416" class="footnote"><p><a href="#idp8714416" class="para"><sup class="para">[125] </sup></a>
6756
6757 William W. Crosskey, <em class="citetitle">Politics and the Constitution in the History of
6758 the United States</em> (London: Cambridge University Press, 1953), vol. 1,
6759 485&#8211;86: <span class="quote">«<span class="quote">extinguish[ing], by plain implication of `the supreme
6760 Law of the Land,' <span class="emphasis"><em>the perpetual rights which authors had, or
6761 were supposed by some to have, under the Common Law</em></span></span>»</span>
6762 (emphasis added).
6763 <a class="indexterm" name="idp8716704"></a>
6764 </p></div><div id="ftn.idp8726336" class="footnote"><p><a href="#idp8726336" class="para"><sup class="para">[126] </sup></a>
6765
6766 Although 13,000 titles were published in the United States from 1790
6767 to 1799, only 556 copyright registrations were filed; John Tebbel, <em class="citetitle">A
6768 History of Book Publishing in the United States</em>, vol. 1, <em class="citetitle">The Creation
6769 of an Industry, 1630&#8211;1865</em> (New York: Bowker, 1972), 141. Of the 21,000
6770 imprints recorded before 1790, only twelve were copyrighted under the
6771 1790 act; William J. Maher, <em class="citetitle">Copyright Term, Retrospective Extension
6772 and the Copyright Law of 1790 in Historical Context</em>, 7&#8211;10 (2002),
6773 available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
6774 #25</a>.  Thus, the overwhelming majority of works fell
6775 immediately into the public domain. Even those works that were
6776 copyrighted fell into the public domain quickly, because the term of
6777 copyright was short. The initial term of copyright was fourteen years,
6778 with the option of renewal for an additional fourteen years. Copyright
6779 Act of May 31, 1790, §1, 1 stat. 124.  </p></div><div id="ftn.idp8734672" class="footnote"><p><a href="#idp8734672" class="para"><sup class="para">[127] </sup></a>
6780
6781 Few copyright holders ever chose to renew their copyrights. For
6782 instance, of the 25,006 copyrights registered in 1883, only 894 were
6783 renewed in 1910. For a year-by-year analysis of copyright renewal
6784 rates, see Barbara A. Ringer, <span class="quote">«<span class="quote">Study No. 31: Renewal of Copyright,</span>»</span>
6785 <em class="citetitle">Studies on Copyright</em>, vol. 1 (New York: Practicing Law Institute,
6786 1963), 618. For a more recent and comprehensive analysis, see William
6787 M. Landes and Richard A.  Posner, <span class="quote">«<span class="quote">Indefinitely Renewable Copyright,</span>»</span>
6788 <em class="citetitle">University of Chicago Law Review</em> 70 (2003): 471, 498&#8211;501, and
6789 accompanying figures.  </p></div><div id="ftn.idp8741808" class="footnote"><p><a href="#idp8741808" class="para"><sup class="para">[128] </sup></a>
6790
6791 See Ringer, ch. 9, n. 2.  </p></div><div id="ftn.idp8767920" class="footnote"><p><a href="#idp8767920" class="para"><sup class="para">[129] </sup></a>
6792
6793 These statistics are understated. Between the years 1910 and 1962 (the
6794 first year the renewal term was extended), the average term was never
6795 more than thirty-two years, and averaged thirty years. See Landes and
6796 Posner, <span class="quote">«<span class="quote">Indefinitely Renewable Copyright,</span>»</span> loc. cit.
6797 </p></div><div id="ftn.idp8807232" class="footnote"><p><a href="#idp8807232" class="para"><sup class="para">[130] </sup></a>
6798
6799 See Thomas Bender and David Sampliner, <span class="quote">«<span class="quote">Poets, Pirates, and the
6800 Creation of American Literature,</span>»</span> 29 <em class="citetitle">New York University Journal of
6801 International Law and Politics</em> 255 (1997), and James Gilraeth, ed.,
6802 Federal Copyright Records, 1790&#8211;1800 (U.S. G.P.O., 1987).
6803
6804 </p></div><div id="ftn.idp8824528" class="footnote"><p><a href="#idp8824528" class="para"><sup class="para">[131] </sup></a>
6805
6806 Jonathan Zittrain, <span class="quote">«<span class="quote">The Copyright Cage,</span>»</span> <em class="citetitle">Legal
6807 Affairs</em>, July/August 2003, available at
6808 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #26</a>.
6809 <a class="indexterm" name="idp8827024"></a>
6810 </p></div><div id="ftn.idp8828752" class="footnote"><p><a href="#idp8828752" class="para"><sup class="para">[132] </sup></a>
6811
6812 Professor Rubenfeld has presented a powerful constitutional argument
6813 about the difference that copyright law should draw (from the
6814 perspective of the First Amendment) between mere <span class="quote">«<span class="quote">copies</span>»</span> and
6815 derivative works. See Jed Rubenfeld, <span class="quote">«<span class="quote">The Freedom of Imagination:
6816 Copyright's Constitutionality,</span>»</span> <em class="citetitle">Yale Law
6817 Journal</em> 112 (2002): 1&#8211;60 (see especially
6818 pp. 53&#8211;59).
6819 <a class="indexterm" name="idp8830896"></a>
6820 </p></div><div id="ftn.idp8845040" class="footnote"><p><a href="#idp8845040" class="para"><sup class="para">[133] </sup></a>
6821
6822 This is a simplification of the law, but not much of one. The law
6823 certainly regulates more than <span class="quote">«<span class="quote">copies</span>»</span>&#8212;a public performance of a
6824 copyrighted song, for example, is regulated even though performance
6825 per se doesn't make a copy; 17 <em class="citetitle">United States Code</em>, section
6826 106(4). And it certainly sometimes doesn't regulate a <span class="quote">«<span class="quote">copy</span>»</span>; 17
6827 <em class="citetitle">United States Code</em>, section 112(a). But the presumption under the
6828 existing law (which regulates <span class="quote">«<span class="quote">copies;</span>»</span> 17 <em class="citetitle">United States Code</em>, section
6829 102) is that if there is a copy, there is a right.
6830 </p></div><div id="ftn.idp8858032" class="footnote"><p><a href="#idp8858032" class="para"><sup class="para">[134] </sup></a>
6831
6832 Thus, my argument is not that in each place that copyright law
6833 extends, we should repeal it. It is instead that we should have a good
6834 argument for its extending where it does, and should not determine its
6835 reach on the basis of arbitrary and automatic changes caused by
6836 technology.
6837 </p></div><div id="ftn.idp8907344" class="footnote"><p><a href="#idp8907344" class="para"><sup class="para">[135] </sup></a>
6838
6839 I don't mean <span class="quote">«<span class="quote">nature</span>»</span> in the sense that it couldn't be different, but
6840 rather that its present instantiation entails a copy. Optical networks
6841 need not make copies of content they transmit, and a digital network
6842 could be designed to delete anything it copies so that the same number
6843 of copies remain.
6844 </p></div><div id="ftn.idp9005088" class="footnote"><p><a href="#idp9005088" class="para"><sup class="para">[136] </sup></a>
6845
6846 See David Lange, <span class="quote">«<span class="quote">Recognizing the Public Domain,</span>»</span> <em class="citetitle">Law and
6847 Contemporary Problems</em> 44 (1981): 172&#8211;73.
6848 </p></div><div id="ftn.idp9007680" class="footnote"><p><a href="#idp9007680" class="para"><sup class="para">[137] </sup></a>
6849
6850 <a class="indexterm" name="idp9008384"></a>
6851 Ibid. See also Vaidhyanathan, <em class="citetitle">Copyrights and
6852 Copywrongs</em>, 1&#8211;3.
6853 </p></div><div id="ftn.idp9045808" class="footnote"><p><a href="#idp9045808" class="para"><sup class="para">[138] </sup></a>
6854
6855 In principle, a contract might impose a requirement on me. I might,
6856 for example, buy a book from you that includes a contract that says I
6857 will read it only three times, or that I promise to read it three
6858 times. But that obligation (and the limits for creating that
6859 obligation) would come from the contract, not from copyright law, and
6860 the obligations of contract would not necessarily pass to anyone who
6861 subsequently acquired the book.
6862 </p></div><div id="ftn.idp9097392" class="footnote"><p><a href="#idp9097392" class="para"><sup class="para">[139] </sup></a>
6863
6864 See Pamela Samuelson, <span class="quote">«<span class="quote">Anticircumvention Rules: Threat to Science,</span>»</span>
6865 <em class="citetitle">Science</em> 293 (2001): 2028; Brendan I. Koerner, <span class="quote">«<span class="quote">Play Dead: Sony Muzzles
6866 the Techies Who Teach a Robot Dog New Tricks,</span>»</span> <em class="citetitle">American Prospect</em>,
6867 January 2002; <span class="quote">«<span class="quote">Court Dismisses Computer Scientists' Challenge to
6868 DMCA,</span>»</span> <em class="citetitle">Intellectual Property Litigation Reporter</em>, 11 December 2001; Bill
6869 Holland, <span class="quote">«<span class="quote">Copyright Act Raising Free-Speech Concerns,</span>»</span> <em class="citetitle">Billboard</em>,
6870 May 2001; Janelle Brown, <span class="quote">«<span class="quote">Is the RIAA Running Scared?</span>»</span> Salon.com,
6871 April  2001; Electronic Frontier Foundation, <span class="quote">«<span class="quote">Frequently Asked
6872 Questions about <em class="citetitle">Felten and USENIX</em> v. <em class="citetitle">RIAA</em> Legal Case,</span>»</span> available at
6873 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #27</a>.
6874 <a class="indexterm" name="idp9104272"></a>
6875 </p></div><div id="ftn.idp9141328" class="footnote"><p><a href="#idp9141328" class="para"><sup class="para">[140] </sup></a>
6876
6877 <a class="indexterm" name="idp9142064"></a>
6878 <em class="citetitle">Sony Corporation of America</em> v. <em class="citetitle">Universal City Studios, Inc</em>., 464 U.S. 417,
6879 455 fn. 27 (1984). Rogers never changed his view about the VCR. See
6880 James Lardner, <em class="citetitle">Fast Forward: Hollywood, the Japanese, and the Onslaught of
6881 the VCR</em> (New York: W. W. Norton, 1987), 270&#8211;71.
6882 <a class="indexterm" name="idp9009680"></a>
6883 </p></div><div id="ftn.idp9167808" class="footnote"><p><a href="#idp9167808" class="para"><sup class="para">[141] </sup></a>
6884
6885 For an early and prescient analysis, see Rebecca Tushnet, <span class="quote">«<span class="quote">Legal Fictions,
6886 Copyright, Fan Fiction, and a New Common Law,</span>»</span> <em class="citetitle">Loyola of Los Angeles
6887 Entertainment Law Journal</em> 17 (1997): 651.
6888 </p></div><div id="ftn.idp9183760" class="footnote"><p><a href="#idp9183760" class="para"><sup class="para">[142] </sup></a>
6889
6890 FCC Oversight: Hearing Before the Senate Commerce, Science and
6891 Transportation Committee, 108th Cong., 1st sess. (22 May 2003)
6892 (statement of Senator John McCain).  </p></div><div id="ftn.idp9184976" class="footnote"><p><a href="#idp9184976" class="para"><sup class="para">[143] </sup></a>
6893
6894 Lynette Holloway, <span class="quote">«<span class="quote">Despite a Marketing Blitz, CD Sales Continue to
6895 Slide,</span>»</span> <em class="citetitle">New York Times</em>, 23 December 2002.
6896 </p></div><div id="ftn.idp9187104" class="footnote"><p><a href="#idp9187104" class="para"><sup class="para">[144] </sup></a>
6897
6898 Molly Ivins, <span class="quote">«<span class="quote">Media Consolidation Must Be Stopped,</span>»</span> <em class="citetitle">Charleston Gazette</em>,
6899 31 May 2003.
6900 </p></div><div id="ftn.idp9194448" class="footnote"><p><a href="#idp9194448" class="para"><sup class="para">[145] </sup></a>
6901
6902 James Fallows, <span class="quote">«<span class="quote">The Age of Murdoch,</span>»</span> <em class="citetitle">Atlantic Monthly</em> (September
6903 2003): 89.
6904 <a class="indexterm" name="idp9196560"></a>
6905 </p></div><div id="ftn.idp9206848" class="footnote"><p><a href="#idp9206848" class="para"><sup class="para">[146] </sup></a>
6906
6907 Leonard Hill, <span class="quote">«<span class="quote">The Axis of Access,</span>»</span> remarks before Weidenbaum Center
6908 Forum, <span class="quote">«<span class="quote">Entertainment Economics: The Movie Industry,</span>»</span> St. Louis,
6909 Missouri, 3 April 2003 (transcript of prepared remarks available at
6910 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #28</a>;
6911 for the Lear story, not included in the prepared remarks, see
6912 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #29</a>).
6913 </p></div><div id="ftn.idp9213456" class="footnote"><p><a href="#idp9213456" class="para"><sup class="para">[147] </sup></a>
6914
6915 NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media
6916 Ownership Before the Senate Commerce Committee, 108th Cong., 1st
6917 sess. (2003) (testimony of Gene Kimmelman on behalf of Consumers Union
6918 and the Consumer Federation of America), available at
6919 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #30</a>. Kimmelman
6920 quotes Victoria Riskin, president of Writers Guild of America, West,
6921 in her Remarks at FCC En Banc Hearing, Richmond, Virginia, 27 February
6922 2003.
6923 </p></div><div id="ftn.idp9216000" class="footnote"><p><a href="#idp9216000" class="para"><sup class="para">[148] </sup></a>
6924
6925 Ibid.
6926 </p></div><div id="ftn.idp9222352" class="footnote"><p><a href="#idp9222352" class="para"><sup class="para">[149] </sup></a>
6927
6928 <span class="quote">«<span class="quote">Barry Diller Takes on Media Deregulation,</span>»</span> <em class="citetitle">Now with Bill Moyers</em>, Bill
6929 Moyers, 25 April 2003, edited transcript available at
6930 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #31</a>.
6931 </p></div><div id="ftn.idp9228016" class="footnote"><p><a href="#idp9228016" class="para"><sup class="para">[150] </sup></a>
6932
6933 Clayton M. Christensen, <em class="citetitle">The Innovator's Dilemma: The
6934 Revolutionary National Bestseller that Changed the Way We Do Business</em>
6935 (Cambridge: Harvard Business School Press, 1997). Christensen
6936 acknowledges that the idea was first suggested by Dean Kim Clark. See
6937 Kim B. Clark, <span class="quote">«<span class="quote">The Interaction of Design Hierarchies and Market
6938 Concepts in Technological Evolution,</span>»</span> <em class="citetitle">Research Policy</em> 14 (1985):
6939 235&#8211;51. For a more recent study, see Richard Foster and Sarah
6940 Kaplan, <em class="citetitle">Creative Destruction: Why Companies That Are Built to Last
6941 Underperform the Market&#8212;and How to Successfully Transform Them</em>
6942 (New York: Currency/Doubleday, 2001).  </p></div><div id="ftn.idp9251008" class="footnote"><p><a href="#idp9251008" class="para"><sup class="para">[151] </sup></a>
6943
6944 <a class="indexterm" name="idp9251744"></a>
6945 <a class="indexterm" name="idp9252496"></a>
6946 <a class="indexterm" name="idp9253312"></a>
6947 <a class="indexterm" name="idp9254144"></a>
6948 <a class="indexterm" name="idp9254976"></a>
6949 <a class="indexterm" name="idp9255792"></a>
6950 <a class="indexterm" name="idp9256576"></a>
6951 The Marijuana Policy Project, in February 2003, sought to place ads
6952 that directly responded to the Nick and Norm series on stations within
6953 the Washington, D.C., area. Comcast rejected the ads as <span class="quote">«<span class="quote">against
6954 [their] policy.</span>»</span>  The local NBC affiliate, WRC, rejected the ads
6955 without reviewing them. The local ABC affiliate, WJOA, originally
6956 agreed to run the ads and accepted payment to do so, but later decided
6957 not to run the ads and returned the collected fees. Interview with
6958 Neal Levine, 15 October 2003.  These restrictions are, of course, not
6959 limited to drug policy. See, for example, Nat Ives, <span class="quote">«<span class="quote">On the
6960 Issue of an Iraq War, Advocacy Ads Meet with Rejection from TV
6961 Networks,</span>»</span> <em class="citetitle">New York Times</em>, 13 March
6962 2003, C4.  Outside of election-related air time there is very little
6963 that the FCC or the courts are willing to do to even the playing
6964 field. For a general overview, see Rhonda Brown, <span class="quote">«<span class="quote">Ad Hoc Access:
6965 The Regulation of Editorial Advertising on Television and
6966 Radio,</span>»</span> <em class="citetitle">Yale Law and Policy Review</em> 6
6967 (1988): 449&#8211;79, and for a more recent summary of the stance of
6968 the FCC and the courts, see <em class="citetitle">Radio-Television News Directors
6969 Association</em> v. <em class="citetitle">FCC</em>, 184 F. 3d 872
6970 (D.C. Cir. 1999). Municipal authorities exercise the same authority as
6971 the networks. In a recent example from San Francisco, the San
6972 Francisco transit authority rejected an ad that criticized its Muni
6973 diesel buses. Phillip Matier and Andrew Ross, <span class="quote">«<span class="quote">Antidiesel Group
6974 Fuming After Muni Rejects Ad,</span>»</span> SFGate.com, 16 June 2003,
6975 available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
6976 #32</a>. The ground was that the criticism was <span class="quote">«<span class="quote">too
6977 controversial.</span>»</span>
6978 </p></div><div id="ftn.idp9278736" class="footnote"><p><a href="#idp9278736" class="para"><sup class="para">[152] </sup></a>
6979
6980 <a class="indexterm" name="idp9279808"></a>
6981 Siva Vaidhyanathan captures a similar point in his <span class="quote">«<span class="quote">four surrenders</span>»</span> of
6982 copyright law in the digital age. See Vaidhyanathan, 159&#8211;60.
6983 </p></div><div id="ftn.idp9321152" class="footnote"><p><a href="#idp9321152" class="para"><sup class="para">[153] </sup></a>
6984
6985 <a class="indexterm" name="idp9321888"></a>
6986 It was the single most important contribution of the legal realist
6987 movement to demonstrate that all property rights are always crafted to
6988 balance public and private interests. See Thomas C. Grey, <span class="quote">«<span class="quote">The
6989 Disintegration of Property,</span>»</span> in <em class="citetitle">Nomos XXII: Property</em>, J. Roland
6990 Pennock and John W.  Chapman, eds. (New York: New York University
6991 Press, 1980).
6992 </p></div></div></div></div><div class="part"><div class="titlepage"><div><div><h1 class="title"><a name="c-puzzles"></a>Part III. Puzzles</h1></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="chimera"></a>Chapter 11. Chapter Eleven: Chimera</h2></div></div></div><a class="indexterm" name="idxchimera"></a><a class="indexterm" name="idxwells"></a><a class="indexterm" name="idxtcotb"></a><p>
6993 <span class="strong"><strong>In a well-known</strong></span> short story by
6994 H. G. Wells, a mountain climber named Nunez trips (literally, down an
6995 ice slope) into an unknown and isolated valley in the Peruvian
6996 Andes.<a href="#ftn.idp9343632" class="footnote" name="idp9343632"><sup class="footnote">[154]</sup></a>
6997 The valley is extraordinarily beautiful, with <span class="quote">«<span class="quote">sweet water, pasture,
6998 an even climate, slopes of rich brown soil with tangles of a shrub
6999 that bore an excellent fruit.</span>»</span> But the villagers are all blind. Nunez
7000 takes this as an opportunity. <span class="quote">«<span class="quote">In the Country of the Blind,</span>»</span> he tells
7001 himself, <span class="quote">«<span class="quote">the One-Eyed Man is King.</span>»</span>  So he resolves to live with the
7002 villagers to explore life as a king.
7003 </p><p>
7004 Things don't go quite as he planned. He tries to explain the idea of
7005 sight to the villagers. They don't understand. He tells them they are
7006 <span class="quote">«<span class="quote">blind.</span>»</span> They don't have the word <em class="citetitle">blind</em>. They think he's just thick.
7007 Indeed, as they increasingly notice the things he can't do (hear the
7008 sound of grass being stepped on, for example), they increasingly try
7009 to control him. He, in turn, becomes increasingly frustrated. <span class="quote">«<span class="quote">`You
7010 don't understand,' he cried, in a voice that was meant to be great and
7011 resolute, and which broke. `You are blind and I can see. Leave me
7012 alone!'</span>»</span>
7013 </p><p>
7014
7015 The villagers don't leave him alone. Nor do they see (so to speak) the
7016 virtue of his special power. Not even the ultimate target of his
7017 affection, a young woman who to him seems <span class="quote">«<span class="quote">the most beautiful thing in
7018 the whole of creation,</span>»</span> understands the beauty of sight. Nunez's
7019 description of what he sees <span class="quote">«<span class="quote">seemed to her the most poetical of
7020 fancies, and she listened to his description of the stars and the
7021 mountains and her own sweet white-lit beauty as though it was a guilty
7022 indulgence.</span>»</span>  <span class="quote">«<span class="quote">She did not believe,</span>»</span> Wells tells us, and <span class="quote">«<span class="quote">she could
7023 only half understand, but she was mysteriously delighted.</span>»</span>
7024 </p><p>
7025 When Nunez announces his desire to marry his <span class="quote">«<span class="quote">mysteriously delighted</span>»</span>
7026 love, the father and the village object. <span class="quote">«<span class="quote">You see, my dear,</span>»</span> her
7027 father instructs, <span class="quote">«<span class="quote">he's an idiot. He has delusions. He can't do
7028 anything right.</span>»</span> They take Nunez to the village doctor.
7029 </p><p>
7030 After a careful examination, the doctor gives his opinion. <span class="quote">«<span class="quote">His brain
7031 is affected,</span>»</span> he reports.
7032 </p><p>
7033 <span class="quote">«<span class="quote">What affects it?</span>»</span> the father asks.  <span class="quote">«<span class="quote">Those queer things that are
7034 called the eyes &#8230; are diseased &#8230; in such a way as to affect
7035 his brain.</span>»</span>
7036 </p><p>
7037 The doctor continues: <span class="quote">«<span class="quote">I think I may say with reasonable certainty
7038 that in order to cure him completely, all that we need to do is a
7039 simple and easy surgical operation&#8212;namely, to remove these
7040 irritant bodies [the eyes].</span>»</span>
7041 </p><p>
7042 <span class="quote">«<span class="quote">Thank Heaven for science!</span>»</span> says the father to the doctor. They inform
7043 Nunez of this condition necessary for him to be allowed his bride.
7044 (You'll have to read the original to learn what happens in the end. I
7045 believe in free culture, but never in giving away the end of a story.)
7046 </p><p>
7047 <span class="strong"><strong>It sometimes</strong></span> happens that the eggs
7048 of twins fuse in the mother's womb. That fusion produces a
7049 <span class="quote">«<span class="quote">chimera.</span>»</span> A chimera is a single creature with two sets
7050 of DNA. The DNA in the blood, for example, might be different from the
7051 DNA of the skin. This possibility is an underused
7052
7053
7054 plot for murder mysteries. <span class="quote">«<span class="quote">But the DNA shows with 100 percent
7055 certainty that she was not the person whose blood was at the
7056 scene. &#8230;</span>»</span>
7057 </p><a class="indexterm" name="idp9361504"></a><a class="indexterm" name="idp9362608"></a><p>
7058 Before I had read about chimeras, I would have said they were
7059 impossible.  A single person can't have two sets of DNA. The very idea
7060 of DNA is that it is the code of an individual. Yet in fact, not only
7061 can two individuals have the same set of DNA (identical twins), but
7062 one person can have two different sets of DNA (a chimera). Our
7063 understanding of a <span class="quote">«<span class="quote">person</span>»</span> should reflect this reality.
7064 </p><p>
7065 The more I work to understand the current struggle over copyright and
7066 culture, which I've sometimes called unfairly, and sometimes not
7067 unfairly enough, <span class="quote">«<span class="quote">the copyright wars,</span>»</span> the more I think we're dealing
7068 with a chimera. For example, in the battle over the question <span class="quote">«<span class="quote">What is
7069 p2p file sharing?</span>»</span> both sides have it right, and both sides have it
7070 wrong.  One side says, <span class="quote">«<span class="quote">File sharing is just like two kids taping each
7071 others' records&#8212;the sort of thing we've been doing for the last
7072 thirty years without any question at all.</span>»</span> That's true, at least in
7073 part. When I tell my best friend to try out a new CD that I've bought,
7074 but rather than just send the CD, I point him to my p2p server, that
7075 is, in all relevant respects, just like what every executive in every
7076 recording company no doubt did as a kid: sharing music.
7077 </p><p>
7078 But the description is also false in part. For when my p2p server is
7079 on a p2p network through which anyone can get access to my music, then
7080 sure, my friends can get access, but it stretches the meaning of
7081 <span class="quote">«<span class="quote">friends</span>»</span> beyond recognition to say <span class="quote">«<span class="quote">my ten thousand best friends</span>»</span> can
7082 get access. Whether or not sharing my music with my best friend is
7083 what <span class="quote">«<span class="quote">we have always been allowed to do,</span>»</span> we have not always been
7084 allowed to share music with <span class="quote">«<span class="quote">our ten thousand best friends.</span>»</span>
7085 </p><p>
7086 Likewise, when the other side says, <span class="quote">«<span class="quote">File sharing is just like walking
7087 into a Tower Records and taking a CD off the shelf and walking out
7088 with it,</span>»</span> that's true, at least in part. If, after Lyle Lovett
7089 (finally) releases a new album, rather than buying it, I go to Kazaa
7090 and find a free copy to take, that is very much like stealing a copy
7091 from Tower.
7092 <a class="indexterm" name="idp9371264"></a>
7093 </p><p>
7094
7095
7096 But it is not quite stealing from Tower. After all, when I take a CD
7097 from Tower Records, Tower has one less CD to sell. And when I take a
7098 CD from Tower Records, I get a bit of plastic and a cover, and
7099 something to show on my shelves. (And, while we're at it, we could
7100 also note that when I take a CD from Tower Records, the maximum fine
7101 that might be imposed on me, under California law, at least, is
7102 $1,000.  According to the RIAA, by contrast, if I download a ten-song
7103 CD, I'm liable for $1,500,000 in damages.)
7104 </p><p>
7105 The point is not that it is as neither side describes. The point is
7106 that it is both&#8212;both as the RIAA describes it and as Kazaa
7107 describes it. It is a chimera. And rather than simply denying what the
7108 other side asserts, we need to begin to think about how we should
7109 respond to this chimera. What rules should govern it?
7110 </p><p>
7111 We could respond by simply pretending that it is not a chimera. We
7112 could, with the RIAA, decide that every act of file sharing should be
7113 a felony. We could prosecute families for millions of dollars in
7114 damages just because file sharing occurred on a family computer. And
7115 we can get universities to monitor all computer traffic to make sure
7116 that no computer is used to commit this crime. These responses might
7117 be extreme, but each of them has either been proposed or actually
7118 implemented.<a href="#ftn.idp9375056" class="footnote" name="idp9375056"><sup class="footnote">[155]</sup></a>
7119
7120 </p><a class="indexterm" name="idp9386240"></a><p>
7121 Alternatively, we could respond to file sharing the way many kids act
7122 as though we've responded. We could totally legalize it. Let there be
7123 no copyright liability, either civil or criminal, for making
7124 copyrighted content available on the Net. Make file sharing like
7125 gossip: regulated, if at all, by social norms but not by law.
7126 </p><p>
7127 Either response is possible. I think either would be a mistake.
7128 Rather than embrace one of these two extremes, we should embrace
7129 something that recognizes the truth in both. And while I end this book
7130 with a sketch of a system that does just that, my aim in the next
7131 chapter is to show just how awful it would be for us to adopt the
7132 zero-tolerance extreme. I believe <span class="emphasis"><em>either</em></span> extreme
7133 would be worse than a reasonable alternative.  But I believe the
7134 zero-tolerance solution would be the worse of the two extremes.
7135 </p><p>
7136
7137
7138 Yet zero tolerance is increasingly our government's policy. In the
7139 middle of the chaos that the Internet has created, an extraordinary
7140 land grab is occurring. The law and technology are being shifted to
7141 give content holders a kind of control over our culture that they have
7142 never had before. And in this extremism, many an opportunity for new
7143 innovation and new creativity will be lost.
7144 </p><p>
7145 I'm not talking about the opportunities for kids to <span class="quote">«<span class="quote">steal</span>»</span> music. My
7146 focus instead is the commercial and cultural innovation that this war
7147 will also kill. We have never seen the power to innovate spread so
7148 broadly among our citizens, and we have just begun to see the
7149 innovation that this power will unleash. Yet the Internet has already
7150 seen the passing of one cycle of innovation around technologies to
7151 distribute content. The law is responsible for this passing. As the
7152 vice president for global public policy at one of these new
7153 innovators, eMusic.com, put it when criticizing the DMCA's added
7154 protection for copyrighted material,
7155 </p><div class="blockquote"><blockquote class="blockquote"><p>
7156 eMusic opposes music piracy. We are a distributor of copyrighted
7157 material, and we want to protect those rights.
7158 </p><p>
7159 But building a technology fortress that locks in the clout of the
7160 major labels is by no means the only way to protect copyright
7161 interests, nor is it necessarily the best. It is simply too early to
7162 answer that question. Market forces operating naturally may very well
7163 produce a totally different industry model.
7164 </p><p>
7165 This is a critical point. The choices that industry sectors make
7166 with respect to these systems will in many ways directly shape the
7167 market for digital media and the manner in which digital media
7168 are distributed. This in turn will directly influence the options
7169 that are available to consumers, both in terms of the ease with
7170 which they will be able to access digital media and the equipment
7171 that they will require to do so. Poor choices made this early in the
7172 game will retard the growth of this market, hurting everyone's
7173 interests.<a href="#ftn.idp9395024" class="footnote" name="idp9395024"><sup class="footnote">[156]</sup></a>
7174 </p></blockquote></div><p>
7175 In April 2001, eMusic.com was purchased by Vivendi Universal,
7176 one of <span class="quote">«<span class="quote">the major labels.</span>»</span> Its position on these matters has now
7177 changed.
7178 <a class="indexterm" name="idp9397696"></a>
7179 </p><p>
7180 Reversing our tradition of tolerance now will not merely quash
7181 piracy. It will sacrifice values that are important to this culture,
7182 and will kill opportunities that could be extraordinarily valuable.
7183 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp9343632" class="footnote"><p><a href="#idp9343632" class="para"><sup class="para">[154] </sup></a>
7184
7185 H. G. Wells, <span class="quote">«<span class="quote">The Country of the Blind</span>»</span> (1904, 1911). See H. G. Wells,
7186 <em class="citetitle">The Country of the Blind and Other Stories</em>, Michael Sherborne, ed. (New
7187 York: Oxford University Press, 1996).
7188 </p></div><div id="ftn.idp9375056" class="footnote"><p><a href="#idp9375056" class="para"><sup class="para">[155] </sup></a>
7189
7190 <a class="indexterm" name="idp9375760"></a>
7191 For an excellent summary, see the report prepared by GartnerG2 and the
7192 Berkman Center for Internet and Society at Harvard Law School,
7193 <span class="quote">«<span class="quote">Copyright and Digital Media in a Post-Napster World,</span>»</span> 27 June 2003,
7194 available at
7195 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
7196 #33</a>. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
7197 (D-Calif.) have introduced a bill that would treat unauthorized
7198 on-line copying as a felony offense with punishments ranging as high
7199 as five years imprisonment; see Jon Healey, <span class="quote">«<span class="quote">House Bill Aims to Up
7200 Stakes on Piracy,</span>»</span> <em class="citetitle">Los Angeles Times</em>, 17 July 2003, available at
7201 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #34</a>. Civil
7202 penalties are currently set at $150,000 per copied song. For a recent
7203 (and unsuccessful) legal challenge to the RIAA's demand that an ISP
7204 reveal the identity of a user accused of sharing more than 600 songs
7205 through a family computer, see <em class="citetitle">RIAA</em> v. <em class="citetitle">Verizon Internet Services (In
7206 re. Verizon Internet Services)</em>, 240 F.  Supp. 2d 24
7207 (D.D.C. 2003). Such a user could face liability ranging as high as $90
7208 million. Such astronomical figures furnish the RIAA with a powerful
7209 arsenal in its prosecution of file sharers. Settlements ranging from
7210 $12,000 to $17,500 for four students accused of heavy file sharing on
7211 university networks must have seemed a mere pittance next to the $98
7212 billion the RIAA could seek should the matter proceed to court. See
7213 Elizabeth Young, <span class="quote">«<span class="quote">Downloading Could Lead to Fines,</span>»</span> redandblack.com,
7214 August 2003, available at
7215 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #35</a>. For an
7216 example of the RIAA's targeting of student file sharing, and of the
7217 subpoenas issued to universities to reveal student file-sharer
7218 identities, see James Collins, <span class="quote">«<span class="quote">RIAA Steps Up Bid to Force BC, MIT to
7219 Name Students,</span>»</span> <em class="citetitle">Boston Globe</em>, 8 August 2003, D3, available at
7220 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #36</a>.
7221 <a class="indexterm" name="idp9384352"></a>
7222 <a class="indexterm" name="idp9385168"></a>
7223 </p></div><div id="ftn.idp9395024" class="footnote"><p><a href="#idp9395024" class="para"><sup class="para">[156] </sup></a>
7224
7225 WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital
7226 Entertainment on the Internet and Other Media: Hearing Before the
7227 Subcommittee on Telecommunications, Trade, and Consumer Protection,
7228 House Committee on Commerce, 106th Cong. 29 (1999) (statement of Peter
7229 Harter, vice president, Global Public Policy and Standards,
7230 EMusic.com), available in LEXIS, Federal Document Clearing House
7231 Congressional Testimony File.  </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="harms"></a>Chapter 12. Chapter Twelve: Harms</h2></div></div></div><p>
7232 <span class="strong"><strong>To fight</strong></span> <span class="quote">«<span class="quote">piracy,</span>»</span> to
7233 protect <span class="quote">«<span class="quote">property,</span>»</span> the content industry has launched a
7234 war. Lobbying and lots of campaign contributions have now brought the
7235 government into this war. As with any war, this one will have both
7236 direct and collateral damage. As with any war of prohibition, these
7237 damages will be suffered most by our own people.
7238 </p><p>
7239 My aim so far has been to describe the consequences of this war, in
7240 particular, the consequences for <span class="quote">«<span class="quote">free culture.</span>»</span> But my aim now is to
7241 extend this description of consequences into an argument. Is this war
7242 justified?
7243 </p><p>
7244 In my view, it is not. There is no good reason why this time, for the
7245 first time, the law should defend the old against the new, just when the
7246 power of the property called <span class="quote">«<span class="quote">intellectual property</span>»</span> is at its greatest in
7247 our history.
7248 </p><a class="indexterm" name="idp9405392"></a><a class="indexterm" name="idp9406208"></a><p>
7249 Yet <span class="quote">«<span class="quote">common sense</span>»</span> does not see it this way. Common sense is still on
7250 the side of the Causbys and the content industry. The extreme claims
7251 of control in the name of property still resonate; the uncritical
7252 rejection of <span class="quote">«<span class="quote">piracy</span>»</span> still has play.
7253 </p><a class="indexterm" name="idp9408528"></a><p>
7254
7255 There will be many consequences of continuing this war. I want to
7256 describe just three. All three might be said to be unintended. I am quite
7257 confident the third is unintended. I'm less sure about the first two. The
7258 first two protect modern RCAs, but there is no Howard Armstrong in
7259 the wings to fight today's monopolists of culture.
7260 </p><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="constrain"></a>12.1. Constraining Creators</h2></div></div></div><p>
7261 In the next ten years we will see an explosion of digital
7262 technologies.  These technologies will enable almost anyone to capture
7263 and share content. Capturing and sharing content, of course, is what
7264 humans have done since the dawn of man. It is how we learn and
7265 communicate. But capturing and sharing through digital technology is
7266 different. The fidelity and power are different. You could send an
7267 e-mail telling someone about a joke you saw on Comedy Central, or you
7268 could send the clip. You could write an essay about the
7269 inconsistencies in the arguments of the politician you most love to
7270 hate, or you could make a short film that puts statement against
7271 statement. You could write a poem to express your love, or you could
7272 weave together a string&#8212;a mash-up&#8212; of songs from your
7273 favorite artists in a collage and make it available on the Net.
7274 </p><p>
7275 This digital <span class="quote">«<span class="quote">capturing and sharing</span>»</span> is in part an extension of the
7276 capturing and sharing that has always been integral to our culture,
7277 and in part it is something new. It is continuous with the Kodak, but
7278 it explodes the boundaries of Kodak-like technologies. The technology
7279 of digital <span class="quote">«<span class="quote">capturing and sharing</span>»</span> promises a world of extraordinarily
7280 diverse creativity that can be easily and broadly shared. And as that
7281 creativity is applied to democracy, it will enable a broad range of
7282 citizens to use technology to express and criticize and contribute to
7283 the culture all around.
7284 </p><p>
7285 Technology has thus given us an opportunity to do something with
7286 culture that has only ever been possible for individuals in small groups,
7287
7288
7289
7290 isolated from others. Think about an old man telling a story to a
7291 collection of neighbors in a small town. Now imagine that same
7292 storytelling extended across the globe.
7293 </p><p>
7294 Yet all this is possible only if the activity is presumptively legal. In
7295 the current regime of legal regulation, it is not. Forget file sharing for
7296 a moment. Think about your favorite amazing sites on the Net. Web
7297 sites that offer plot summaries from forgotten television shows; sites
7298 that catalog cartoons from the 1960s; sites that mix images and sound
7299 to criticize politicians or businesses; sites that gather newspaper articles
7300 on remote topics of science or culture. There is a vast amount of creative
7301 work spread across the Internet. But as the law is currently crafted, this
7302 work is presumptively illegal.
7303 </p><a class="indexterm" name="idp9416672"></a><a class="indexterm" name="idp9417456"></a><a class="indexterm" name="idp9418576"></a><a class="indexterm" name="idp9419696"></a><a class="indexterm" name="idp9420528"></a><p>
7304 That presumption will increasingly chill creativity, as the
7305 examples of extreme penalties for vague infringements continue to
7306 proliferate. It is impossible to get a clear sense of what's allowed
7307 and what's not, and at the same time, the penalties for crossing the
7308 line are astonishingly harsh.  The four students who were threatened
7309 by the RIAA (Jesse Jordan of chapter <a class="xref" href="#catalogs" title="Chapter 3. Chapter Three: Catalogs">3</a> was just one) were threatened with a
7310 $98 billion lawsuit for building search engines that permitted songs
7311 to be copied. Yet World-Com&#8212;which defrauded investors of $11
7312 billion, resulting in a loss to investors in market capitalization of
7313 over $200 billion&#8212;received a fine of a mere $750
7314 million.<a href="#ftn.idp9423312" class="footnote" name="idp9423312"><sup class="footnote">[157]</sup></a>
7315 And under legislation being pushed in Congress right now, a doctor who
7316 negligently removes the wrong leg in an operation would be liable for
7317 no more than $250,000 in damages for pain and
7318 suffering.<a href="#ftn.idp9427200" class="footnote" name="idp9427200"><sup class="footnote">[158]</sup></a>
7319 Can common sense recognize the absurdity in a world where
7320 the maximum fine for downloading two songs off the Internet is more
7321 than the fine for a doctor's negligently butchering a patient?
7322 </p><a class="indexterm" name="idp9432048"></a><p>
7323 The consequence of this legal uncertainty, tied to these extremely
7324 high penalties, is that an extraordinary amount of creativity will
7325 either never be exercised, or never be exercised in the open. We drive
7326 this creative process underground by branding the modern-day Walt
7327 Disneys <span class="quote">«<span class="quote">pirates.</span>»</span> We make it impossible for businesses to rely upon a
7328 public domain, because the boundaries of the public domain are
7329 designed to
7330
7331
7332 be unclear. It never pays to do anything except pay for the right
7333 to create, and hence only those who can pay are allowed to create. As
7334 was the case in the Soviet Union, though for very different reasons,
7335 we will begin to see a world of underground art&#8212;not because the
7336 message is necessarily political, or because the subject is
7337 controversial, but because the very act of creating the art is legally
7338 fraught. Already, exhibits of <span class="quote">«<span class="quote">illegal art</span>»</span> tour the United
7339 States.<a href="#ftn.idp9435200" class="footnote" name="idp9435200"><sup class="footnote">[159]</sup></a>
7340  In what does their <span class="quote">«<span class="quote">illegality</span>»</span> consist?
7341 In the act of mixing the culture around us with an expression that is
7342 critical or reflective.
7343 </p><a class="indexterm" name="idp9439136"></a><p>
7344 Part of the reason for this fear of illegality has to do with the
7345 changing law. I described that change in detail in chapter
7346 <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>. But an
7347 even bigger part has to do with the increasing ease with which
7348 infractions can be tracked. As users of file-sharing systems
7349 discovered in 2002, it is a trivial matter for copyright owners to get
7350 courts to order Internet service providers to reveal who has what
7351 content. It is as if your cassette tape player transmitted a list of
7352 the songs that you played in the privacy of your own home that anyone
7353 could tune into for whatever reason they chose.
7354 </p><a class="indexterm" name="idp9441952"></a><p>
7355 Never in our history has a painter had to worry about whether
7356 his painting infringed on someone else's work; but the modern-day
7357 painter, using the tools of Photoshop, sharing content on the Web,
7358 must worry all the time. Images are all around, but the only safe images
7359 to use in the act of creation are those purchased from Corbis or another
7360 image farm. And in purchasing, censoring happens. There is a free
7361 market in pencils; we needn't worry about its effect on creativity. But
7362 there is a highly regulated, monopolized market in cultural icons; the
7363 right to cultivate and transform them is not similarly free.
7364 </p><p>
7365 Lawyers rarely see this because lawyers are rarely empirical. As I
7366 described in chapter
7367 <a class="xref" href="#recorders" title="Chapter 7. Chapter Seven: Recorders">7</a>, in
7368 response to the story about documentary filmmaker Jon Else, I have
7369 been lectured again and again by lawyers who insist Else's use was
7370 fair use, and hence I am wrong to say that the law regulates such a
7371 use.
7372 </p><p>
7373
7374
7375 But fair use in America simply means the right to hire a lawyer to
7376 defend your right to create. And as lawyers love to forget, our system
7377 for defending rights such as fair use is astonishingly bad&#8212;in
7378 practically every context, but especially here. It costs too much, it
7379 delivers too slowly, and what it delivers often has little connection
7380 to the justice underlying the claim. The legal system may be tolerable
7381 for the very rich.  For everyone else, it is an embarrassment to a
7382 tradition that prides itself on the rule of law.
7383 </p><p>
7384 Judges and lawyers can tell themselves that fair use provides adequate
7385 <span class="quote">«<span class="quote">breathing room</span>»</span> between regulation by the law and the access the law
7386 should allow. But it is a measure of how out of touch our legal system
7387 has become that anyone actually believes this. The rules that
7388 publishers impose upon writers, the rules that film distributors
7389 impose upon filmmakers, the rules that newspapers impose upon
7390 journalists&#8212; these are the real laws governing creativity. And
7391 these rules have little relationship to the <span class="quote">«<span class="quote">law</span>»</span> with which judges
7392 comfort themselves.
7393 </p><p>
7394 For in a world that threatens $150,000 for a single willful
7395 infringement of a copyright, and which demands tens of thousands of
7396 dollars to even defend against a copyright infringement claim, and
7397 which would never return to the wrongfully accused defendant anything
7398 of the costs she suffered to defend her right to speak&#8212;in that
7399 world, the astonishingly broad regulations that pass under the name
7400 <span class="quote">«<span class="quote">copyright</span>»</span> silence speech and creativity. And in that world, it takes
7401 a studied blindness for people to continue to believe they live in a
7402 culture that is free.
7403 </p><p>
7404 As Jed Horovitz, the businessman behind Video Pipeline, said to me,
7405 </p><div class="blockquote"><blockquote class="blockquote"><p>
7406 We're losing [creative] opportunities right and left. Creative people
7407 are being forced not to express themselves. Thoughts are not being
7408 expressed. And while a lot of stuff may [still] be created, it still
7409 won't get distributed. Even if the stuff gets made &#8230; you're not
7410 going to get it distributed in the mainstream media unless
7411
7412 you've got a little note from a lawyer saying, <span class="quote">«<span class="quote">This has been
7413 cleared.</span>»</span> You're not even going to get it on PBS without that kind of
7414 permission. That's the point at which they control it.
7415 </p></blockquote></div></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="innovators"></a>12.2. Constraining Innovators</h2></div></div></div><a class="indexterm" name="idxcopyrightlawinnovationhamperedby"></a><a class="indexterm" name="idxinnovationindustryestablishmentopposedto2"></a><a class="indexterm" name="idxregulationasestablishmentprotectionism2"></a><p>
7416 The story of the last section was a crunchy-lefty
7417 story&#8212;creativity quashed, artists who can't speak, yada yada
7418 yada. Maybe that doesn't get you going. Maybe you think there's enough
7419 weird art out there, and enough expression that is critical of what
7420 seems to be just about everything.  And if you think that, you might
7421 think there's little in this story to worry you.
7422 </p><a class="indexterm" name="idxmarketconstraints2"></a><p>
7423 But there's an aspect of this story that is not lefty in any sense.
7424 Indeed, it is an aspect that could be written by the most extreme
7425 promarket ideologue. And if you're one of these sorts (and a special
7426 one at that, <a class="xref" href="#innovators" title="12.2. Constraining Innovators"></a> pages into a book like this), then you
7427 can see this other aspect by substituting <span class="quote">«<span class="quote">free market</span>»</span>
7428 every place I've spoken of <span class="quote">«<span class="quote">free culture.</span>»</span> The point is
7429 the same, even if the interests affecting culture are more
7430 fundamental.
7431 </p><p>
7432 The charge I've been making about the regulation of culture is the
7433 same charge free marketers make about regulating markets. Everyone, of
7434 course, concedes that some regulation of markets is necessary&#8212;at
7435 a minimum, we need rules of property and contract, and courts to
7436 enforce both. Likewise, in this culture debate, everyone concedes that
7437 at least some framework of copyright is also required. But both
7438 perspectives vehemently insist that just because some regulation is
7439 good, it doesn't follow that more regulation is better. And both
7440 perspectives are constantly attuned to the ways in which regulation
7441 simply enables the powerful industries of today to protect themselves
7442 against the competitors of tomorrow.
7443 </p><a class="indexterm" name="idp9464896"></a><a class="indexterm" name="idp9467024"></a><a class="indexterm" name="idp9467840"></a><p>
7444 This is the single most dramatic effect of the shift in regulatory
7445
7446 strategy that I described in chapter <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>. The consequence of this massive
7447 threat of liability tied to the murky boundaries of copyright law is
7448 that innovators who want to innovate in this space can safely innovate
7449 only if they have the sign-off from last generation's dominant
7450 industries.  That lesson has been taught through a series of cases
7451 that were designed and executed to teach venture capitalists a
7452 lesson. That lesson&#8212;what former Napster CEO Hank Barry calls a
7453 <span class="quote">«<span class="quote">nuclear pall</span>»</span> that has fallen over the Valley&#8212;has been learned.
7454 </p><a class="indexterm" name="idp9471408"></a><a class="indexterm" name="idp9472048"></a><p>
7455 Consider one example to make the point, a story whose beginning
7456 I told in <em class="citetitle">The Future of Ideas</em> and which has progressed in a way that
7457 even I (pessimist extraordinaire) would never have predicted.
7458 </p><a class="indexterm" name="idxmpcom"></a><a class="indexterm" name="idxmympcom"></a><a class="indexterm" name="idp9476960"></a><p>
7459 In 1997, Michael Roberts launched a company called MP3.com.  MP3.com
7460 was keen to remake the music business. Their goal was not just to
7461 facilitate new ways to get access to content. Their goal was also to
7462 facilitate new ways to create content. Unlike the major labels,
7463 MP3.com offered creators a venue to distribute their creativity,
7464 without demanding an exclusive engagement from the creators.
7465 </p><a class="indexterm" name="idp9478576"></a><a class="indexterm" name="idxcdsprefdata"></a><p>
7466 To make this system work, however, MP3.com needed a reliable way to
7467 recommend music to its users. The idea behind this alternative was to
7468 leverage the revealed preferences of music listeners to recommend new
7469 artists. If you like Lyle Lovett, you're likely to enjoy Bonnie
7470 Raitt. And so on.
7471 </p><p>
7472 This idea required a simple way to gather data about user preferences.
7473 MP3.com came up with an extraordinarily clever way to gather this
7474 preference data. In January 2000, the company launched a service
7475 called my.mp3.com. Using software provided by MP3.com, a user would
7476 sign into an account and then insert into her computer a CD. The
7477 software would identify the CD, and then give the user access to that
7478 content.  So, for example, if you inserted a CD by Jill Sobule, then
7479 wherever you were&#8212;at work or at home&#8212;you could get access
7480 to that music once you signed into your account. The system was
7481 therefore a kind of music-lockbox.
7482 </p><p>
7483 No doubt some could use this system to illegally copy content. But
7484 that opportunity existed with or without MP3.com. The aim of the
7485
7486
7487 my.mp3.com service was to give users access to their own content, and
7488 as a by-product, by seeing the content they already owned, to discover
7489 the kind of content the users liked.
7490 </p><a class="indexterm" name="idp9484064"></a><p>
7491 To make this system function, however, MP3.com needed to copy 50,000
7492 CDs to a server. (In principle, it could have been the user who
7493 uploaded the music, but that would have taken a great deal of time,
7494 and would have produced a product of questionable quality.) It
7495 therefore purchased 50,000 CDs from a store, and started the process
7496 of making copies of those CDs. Again, it would not serve the content
7497 from those copies to anyone except those who authenticated that they
7498 had a copy of the CD they wanted to access. So while this was 50,000
7499 copies, it was 50,000 copies directed at giving customers something
7500 they had already bought.
7501 </p><a class="indexterm" name="idxvivendiuniversal"></a><a class="indexterm" name="idp9488432"></a><a class="indexterm" name="idp9489568"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitsinrecordingindustry3"></a><a class="indexterm" name="idp9492640"></a><a class="indexterm" name="idp9493760"></a><a class="indexterm" name="idp9494864"></a><p>
7502 Nine days after MP3.com launched its service, the five major labels,
7503 headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled
7504 with four of the five. Nine months later, a federal judge found
7505 MP3.com to have been guilty of willful infringement with respect to
7506 the fifth. Applying the law as it is, the judge imposed a fine against
7507 MP3.com of $118 million. MP3.com then settled with the remaining
7508 plaintiff, Vivendi Universal, paying over $54 million. Vivendi
7509 purchased MP3.com just about a year later.
7510 </p><p>
7511 That part of the story I have told before. Now consider its conclusion.
7512 </p><p>
7513 After Vivendi purchased MP3.com, Vivendi turned around and filed a
7514 malpractice lawsuit against the lawyers who had advised it that they
7515 had a good faith claim that the service they wanted to offer would be
7516 considered legal under copyright law. This lawsuit alleged that it
7517 should have been obvious that the courts would find this behavior
7518 illegal; therefore, this lawsuit sought to punish any lawyer who had
7519 dared to suggest that the law was less restrictive than the labels
7520 demanded.
7521 </p><a class="indexterm" name="idp9498240"></a><p>
7522 The clear purpose of this lawsuit (which was settled for an
7523 unspecified amount shortly after the story was no longer covered in
7524 the press) was to send an unequivocal message to lawyers advising
7525 clients in this
7526
7527 space: It is not just your clients who might suffer if the content
7528 industry directs its guns against them. It is also you. So those of
7529 you who believe the law should be less restrictive should realize that
7530 such a view of the law will cost you and your firm dearly.
7531 </p><a class="indexterm" name="idp9500768"></a><a class="indexterm" name="idp9501984"></a><a class="indexterm" name="idp9503232"></a><a class="indexterm" name="idp9504672"></a><a class="indexterm" name="idp9505488"></a><a class="indexterm" name="idxbmw"></a><a class="indexterm" name="idxcarsmpsoundsystemsin"></a><a class="indexterm" name="idp9509504"></a><a class="indexterm" name="idp9510288"></a><a class="indexterm" name="idp9511104"></a><a class="indexterm" name="idp9511920"></a><a class="indexterm" name="idp9512736"></a><a class="indexterm" name="idp9513552"></a><a class="indexterm" name="idxneedlemanrafe"></a><a class="indexterm" name="idp9516176"></a><a class="indexterm" name="idp9516992"></a><p>
7532 This strategy is not just limited to the lawyers. In April 2003,
7533 Universal and EMI brought a lawsuit against Hummer Winblad, the
7534 venture capital firm (VC) that had funded Napster at a certain stage of
7535 its development, its cofounder (John Hummer), and general partner
7536 (Hank Barry).<a href="#ftn.idp9518368" class="footnote" name="idp9518368"><sup class="footnote">[160]</sup></a>
7537 The claim here, as well, was that the VC should have recognized the
7538 right of the content industry to control how the industry should
7539 develop. They should be held personally liable for funding a company
7540 whose business turned out to be beyond the law. Here again, the aim of
7541 the lawsuit is transparent: Any VC now recognizes that if you fund a
7542 company whose business is not approved of by the dinosaurs, you are at
7543 risk not just in the marketplace, but in the courtroom as well.  Your
7544 investment buys you not only a company, it also buys you a lawsuit.
7545 So extreme has the environment become that even car manufacturers are
7546 afraid of technologies that touch content. In an article in
7547 <em class="citetitle">Business 2.0</em>, Rafe Needleman describes a
7548 discussion with BMW:
7549 </p><div class="blockquote"><blockquote class="blockquote"><p>
7550 I asked why, with all the storage capacity and computer power in
7551 the car, there was no way to play MP3 files. I was told that BMW
7552 engineers in Germany had rigged a new vehicle to play MP3s via
7553 the car's built-in sound system, but that the company's marketing
7554 and legal departments weren't comfortable with pushing this
7555 forward for release stateside. Even today, no new cars are sold in the
7556 United States with bona fide MP3 players. &#8230; <a href="#ftn.idp9451520" class="footnote" name="idp9451520"><sup class="footnote">[161]</sup></a>
7557 </p></blockquote></div><a class="indexterm" name="idp9528352"></a><a class="indexterm" name="idp9529664"></a><a class="indexterm" name="idp9530976"></a><p>
7558 This is the world of the mafia&#8212;filled with <span class="quote">«<span class="quote">your money or your
7559 life</span>»</span> offers, governed in the end not by courts but by the threats
7560 that the law empowers copyright holders to exercise. It is a system
7561 that will obviously and necessarily stifle new innovation. It is hard
7562 enough to start a company. It is impossibly hard if that company is
7563 constantly threatened by litigation.
7564 </p><p>
7565
7566
7567 The point is not that businesses should have a right to start illegal
7568 enterprises. The point is the definition of <span class="quote">«<span class="quote">illegal.</span>»</span> The law is a
7569 mess of uncertainty. We have no good way to know how it should apply
7570 to new technologies. Yet by reversing our tradition of judicial
7571 deference, and by embracing the astonishingly high penalties that
7572 copyright law imposes, that uncertainty now yields a reality which is
7573 far more conservative than is right. If the law imposed the death
7574 penalty for parking tickets, we'd not only have fewer parking tickets,
7575 we'd also have much less driving. The same principle applies to
7576 innovation. If innovation is constantly checked by this uncertain and
7577 unlimited liability, we will have much less vibrant innovation and
7578 much less creativity.
7579 </p><a class="indexterm" name="idp9536064"></a><p>
7580 The point is directly parallel to the crunchy-lefty point about fair
7581 use. Whatever the <span class="quote">«<span class="quote">real</span>»</span> law is, realism about the effect of law in
7582 both contexts is the same. This wildly punitive system of regulation
7583 will systematically stifle creativity and innovation. It will protect
7584 some industries and some creators, but it will harm industry and
7585 creativity generally. Free market and free culture depend upon vibrant
7586 competition.  Yet the effect of the law today is to stifle just this
7587 kind of competition.  The effect is to produce an overregulated
7588 culture, just as the effect of too much control in the market is to
7589 produce an overregulated-regulated market.
7590 </p><p>
7591 The building of a permission culture, rather than a free culture, is
7592 the first important way in which the changes I have described will
7593 burden innovation. A permission culture means a lawyer's
7594 culture&#8212;a culture in which the ability to create requires a call
7595 to your lawyer. Again, I am not antilawyer, at least when they're kept
7596 in their proper place. I am certainly not antilaw. But our profession
7597 has lost the sense of its limits. And leaders in our profession have
7598 lost an appreciation of the high costs that our profession imposes
7599 upon others. The inefficiency of the law is an embarrassment to our
7600 tradition. And while I believe our profession should therefore do
7601 everything it can to make the law more efficient, it should at least
7602 do everything it can to limit the reach of the
7603
7604 law where the law is not doing any good. The transaction costs buried
7605 within a permission culture are enough to bury a wide range of
7606 creativity.  Someone needs to do a lot of justifying to justify that
7607 result.
7608 </p><p>
7609 <span class="strong"><strong>The uncertainty</strong></span> of the law is one
7610 burden on innovation. There is a second burden that operates more
7611 directly. This is the effort by many in the content industry to use
7612 the law to directly regulate the technology of the Internet so that it
7613 better protects their content.
7614 </p><p>
7615 The motivation for this response is obvious. The Internet enables the
7616 efficient spread of content. That efficiency is a feature of the
7617 Internet's design. But from the perspective of the content industry,
7618 this feature is a <span class="quote">«<span class="quote">bug.</span>»</span> The efficient spread of content means that
7619 content distributors have a harder time controlling the distribution
7620 of content.  One obvious response to this efficiency is thus to make
7621 the Internet less efficient. If the Internet enables <span class="quote">«<span class="quote">piracy,</span>»</span> then,
7622 this response says, we should break the kneecaps of the Internet.
7623 </p><a class="indexterm" name="idp9543216"></a><p>
7624 The examples of this form of legislation are many. At the urging of
7625 the content industry, some in Congress have threatened legislation that
7626 would require computers to determine whether the content they access
7627 is protected or not, and to disable the spread of protected content.<a href="#ftn.idp9544576" class="footnote" name="idp9544576"><sup class="footnote">[162]</sup></a>
7628 Congress has already launched proceedings to explore a mandatory
7629 <span class="quote">«<span class="quote">broadcast flag</span>»</span> that would be required on any device capable of
7630 transmitting digital video (i.e., a computer), and that would disable
7631 the copying of any content that is marked with a broadcast flag. Other
7632 members of Congress have proposed immunizing content providers from
7633 liability for technology they might deploy that would hunt down
7634 copyright violators and disable their machines.<a href="#ftn.idp9547520" class="footnote" name="idp9547520"><sup class="footnote">[163]</sup></a>
7635 </p><p>
7636 In one sense, these solutions seem sensible. If the problem is the
7637 code, why not regulate the code to remove the problem. But any
7638 regulation of technical infrastructure will always be tuned to the
7639 particular technology of the day. It will impose significant burdens
7640 and costs on
7641
7642 the technology, but will likely be eclipsed by advances around exactly
7643 those requirements.
7644 </p><a class="indexterm" name="idp9549632"></a><p>
7645 In March 2002, a broad coalition of technology companies, led by
7646 Intel, tried to get Congress to see the harm that such legislation
7647 would impose.<a href="#ftn.idp9550832" class="footnote" name="idp9550832"><sup class="footnote">[164]</sup></a>
7648 Their argument was obviously not that copyright should not be
7649 protected. Instead, they argued, any protection should not do more
7650 harm than good.
7651 </p><p>
7652 <span class="strong"><strong>There is one</strong></span> more obvious way in
7653 which this war has harmed innovation&#8212;again, a story that will be
7654 quite familiar to the free market crowd.
7655 </p><p>
7656 Copyright may be property, but like all property, it is also a form
7657 of regulation. It is a regulation that benefits some and harms others.
7658 When done right, it benefits creators and harms leeches. When done
7659 wrong, it is regulation the powerful use to defeat competitors.
7660 </p><a class="indexterm" name="idp9554480"></a><a class="indexterm" name="idp9555552"></a><a class="indexterm" name="idp9556368"></a><a class="indexterm" name="idp9557184"></a><p>
7661 As I described in chapter <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>, despite this feature of copyright as
7662 regulation, and subject to important qualifications outlined by
7663 Jessica Litman in her book <em class="citetitle">Digital
7664 Copyright</em>,<a href="#ftn.idp9560064" class="footnote" name="idp9560064"><sup class="footnote">[165]</sup></a>
7665 overall this history of copyright is not bad. As chapter
7666 <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a> details,
7667 when new technologies have come along, Congress has struck a balance
7668 to assure that the new is protected from the old. Compulsory, or
7669 statutory, licenses have been one part of that strategy. Free use (as
7670 in the case of the VCR) has been another.
7671 </p><p>
7672 But that pattern of deference to new technologies has now changed
7673 with the rise of the Internet. Rather than striking a balance between
7674 the claims of a new technology and the legitimate rights of content
7675 creators, both the courts and Congress have imposed legal restrictions
7676 that will have the effect of smothering the new to benefit the old.
7677 </p><a class="indexterm" name="idxinternetradioon"></a><a class="indexterm" name="idxradiooninternet"></a><p>
7678 The response by the courts has been fairly universal.<a href="#ftn.idp9569040" class="footnote" name="idp9569040"><sup class="footnote">[166]</sup></a>
7679 It has been mirrored in the responses threatened and actually
7680 implemented by Congress. I won't catalog all of those responses
7681 here.<a href="#ftn.idp9573360" class="footnote" name="idp9573360"><sup class="footnote">[167]</sup></a>
7682 But there is one example that captures the flavor of them all. This is
7683 the story of the demise of Internet radio.
7684 </p><a class="indexterm" name="idp9580112"></a><a class="indexterm" name="idp9581200"></a><p>
7685
7686
7687 As I described in chapter <a class="xref" href="#pirates" title="Chapter 4. Chapter Four: «Pirates»">4</a>, when a radio station plays a song, the recording
7688 artist doesn't get paid for that <span class="quote">«<span class="quote">radio performance</span>»</span> unless he or she
7689 is also the composer. So, for example if Marilyn Monroe had recorded a
7690 version of <span class="quote">«<span class="quote">Happy Birthday</span>»</span>&#8212;to memorialize her famous
7691 performance before President Kennedy at Madison Square Garden&#8212;
7692 then whenever that recording was played on the radio, the current
7693 copyright owners of <span class="quote">«<span class="quote">Happy Birthday</span>»</span> would get some money, whereas
7694 Marilyn Monroe would not.
7695 </p><p>
7696 The reasoning behind this balance struck by Congress makes some
7697 sense. The justification was that radio was a kind of advertising. The
7698 recording artist thus benefited because by playing her music, the
7699 radio station was making it more likely that her records would be
7700 purchased.  Thus, the recording artist got something, even if only
7701 indirectly.  Probably this reasoning had less to do with the result
7702 than with the power of radio stations: Their lobbyists were quite good
7703 at stopping any efforts to get Congress to require compensation to the
7704 recording artists.
7705 </p><p>
7706 Enter Internet radio. Like regular radio, Internet radio is a
7707 technology to stream content from a broadcaster to a listener. The
7708 broadcast travels across the Internet, not across the ether of radio
7709 spectrum.  Thus, I can <span class="quote">«<span class="quote">tune in</span>»</span> to an Internet radio station in
7710 Berlin while sitting in San Francisco, even though there's no way for
7711 me to tune in to a regular radio station much beyond the San Francisco
7712 metropolitan area.
7713 </p><p>
7714 This feature of the architecture of Internet radio means that there
7715 are potentially an unlimited number of radio stations that a user
7716 could tune in to using her computer, whereas under the existing
7717 architecture for broadcast radio, there is an obvious limit to the
7718 number of broadcasters and clear broadcast frequencies. Internet radio
7719 could therefore be more competitive than regular radio; it could
7720 provide a wider range of selections. And because the potential
7721 audience for Internet radio is the whole world, niche stations could
7722 easily develop and market their content to a relatively large number
7723 of users worldwide. According to some estimates, more than eighty
7724 million users worldwide have tuned in to this new form of radio.
7725 </p><a class="indexterm" name="idp9589600"></a><p>
7726
7727
7728 Internet radio is thus to radio what FM was to AM. It is an
7729 improvement potentially vastly more significant than the FM
7730 improvement over AM, since not only is the technology better, so, too,
7731 is the competition. Indeed, there is a direct parallel between the
7732 fight to establish FM radio and the fight to protect Internet
7733 radio. As one author describes Howard Armstrong's struggle to enable
7734 FM radio,
7735 </p><div class="blockquote"><blockquote class="blockquote"><p>
7736 An almost unlimited number of FM stations was possible in the
7737 shortwaves, thus ending the unnatural restrictions imposed on radio in
7738 the crowded longwaves. If FM were freely developed, the number of
7739 stations would be limited only by economics and competition rather
7740 than by technical restrictions. &#8230; Armstrong likened the situation
7741 that had grown up in radio to that following the invention of the
7742 printing press, when governments and ruling interests attempted to
7743 control this new instrument of mass communications by imposing
7744 restrictive licenses on it. This tyranny was broken only when it
7745 became possible for men freely to acquire printing presses and freely
7746 to run them. FM in this sense was as great an invention as the
7747 printing presses, for it gave radio the opportunity to strike off its
7748 shackles.<a href="#ftn.idp9524608" class="footnote" name="idp9524608"><sup class="footnote">[168]</sup></a>
7749 </p></blockquote></div><p>
7750 This potential for FM radio was never realized&#8212;not
7751 because Armstrong was wrong about the technology, but because he
7752 underestimated the power of <span class="quote">«<span class="quote">vested interests, habits, customs and
7753 legislation</span>»</span><a href="#ftn.idp9594656" class="footnote" name="idp9594656"><sup class="footnote">[169]</sup></a>
7754 to retard the growth of this competing technology.
7755 </p><p>
7756 Now the very same claim could be made about Internet radio. For
7757 again, there is no technical limitation that could restrict the number of
7758 Internet radio stations. The only restrictions on Internet radio are
7759 those imposed by the law. Copyright law is one such law. So the first
7760 question we should ask is, what copyright rules would govern Internet
7761 radio?
7762 </p><a class="indexterm" name="idxartistsrecordingindustrypaymentsto3"></a><a class="indexterm" name="idp9598224"></a><a class="indexterm" name="idp9599328"></a><a class="indexterm" name="idp9600432"></a><a class="indexterm" name="idxrecordingindustryartistremunerationin3"></a><a class="indexterm" name="idxrecordingindustryradiobroadcastand2"></a><a class="indexterm" name="idxrecordingindustryinternetradiohamperedby"></a><a class="indexterm" name="idxrecordingindustryassociationofamericariaaoninternetradiofees"></a><a class="indexterm" name="idxrecordingindustryassociationofamericariaalobbyingpowerof"></a><p>
7763 But here the power of the lobbyists is reversed. Internet radio is a
7764 new industry. The recording artists, on the other hand, have a very
7765
7766
7767 powerful lobby, the RIAA. Thus when Congress considered the phenomenon
7768 of Internet radio in 1995, the lobbyists had primed Congress to adopt
7769 a different rule for Internet radio than the rule that applies to
7770 terrestrial radio. While terrestrial radio does not have to pay our
7771 hypothetical Marilyn Monroe when it plays her hypothetical recording
7772 of <span class="quote">«<span class="quote">Happy Birthday</span>»</span> on the air, <span class="emphasis"><em>Internet radio
7773 does</em></span>. Not only is the law not neutral toward Internet
7774 radio&#8212;the law actually burdens Internet radio more than it
7775 burdens terrestrial radio.
7776 </p><p>
7777 This financial burden is not slight. As Harvard law professor
7778 William Fisher estimates, if an Internet radio station distributed adfree
7779 popular music to (on average) ten thousand listeners, twenty-four
7780 hours a day, the total artist fees that radio station would owe would be
7781 over $1 million a year.<a href="#ftn.idp9614064" class="footnote" name="idp9614064"><sup class="footnote">[170]</sup></a>
7782 A regular radio station broadcasting the same content would pay no
7783 equivalent fee.
7784 </p><a class="indexterm" name="idp9619728"></a><a class="indexterm" name="idp9621120"></a><a class="indexterm" name="idp9622448"></a><a class="indexterm" name="idp9623776"></a><a class="indexterm" name="idp9625152"></a><p>
7785 The burden is not financial only. Under the original rules that were
7786 proposed, an Internet radio station (but not a terrestrial radio
7787 station) would have to collect the following data from <span class="emphasis"><em>every
7788 listening transaction</em></span>:
7789 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><p>
7790 name of the service;
7791 </p></li><li class="listitem"><p>
7792 channel of the program (AM/FM stations use station ID);
7793 </p></li><li class="listitem"><p>
7794 type of program (archived/looped/live);
7795 </p></li><li class="listitem"><p>
7796 date of transmission;
7797 </p></li><li class="listitem"><p>
7798 time of transmission;
7799 </p></li><li class="listitem"><p>
7800 time zone of origination of transmission;
7801 </p></li><li class="listitem"><p>
7802 numeric designation of the place of the sound recording within the program;
7803 </p></li><li class="listitem"><p>
7804 duration of transmission (to nearest second);
7805 </p></li><li class="listitem"><p>
7806 sound recording title;
7807 </p></li><li class="listitem"><p>
7808 ISRC code of the recording;
7809 </p></li><li class="listitem"><p>
7810 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;
7811 </p></li><li class="listitem"><p>
7812 featured recording artist;
7813 </p></li><li class="listitem"><p>
7814 retail album title;
7815 </p></li><li class="listitem"><p>
7816 recording label;
7817 </p></li><li class="listitem"><p>
7818 UPC code of the retail album;
7819 </p></li><li class="listitem"><p>
7820 catalog number;
7821 </p></li><li class="listitem"><p>
7822 copyright owner information;
7823 </p></li><li class="listitem"><p>
7824 musical genre of the channel or program (station format);
7825 </p></li><li class="listitem"><p>
7826 name of the service or entity;
7827 </p></li><li class="listitem"><p>
7828 channel or program;
7829 </p></li><li class="listitem"><p>
7830 date and time that the user logged in (in the user's time zone);
7831 </p></li><li class="listitem"><p>
7832 date and time that the user logged out (in the user's time zone);
7833 </p></li><li class="listitem"><p>
7834 time zone where the signal was received (user);
7835 </p></li><li class="listitem"><p>
7836 unique user identifier;
7837 </p></li><li class="listitem"><p>
7838 the country in which the user received the transmissions.
7839 </p></li></ol></div><a class="indexterm" name="idp9643248"></a><p>
7840 The Librarian of Congress eventually suspended these reporting
7841 requirements, pending further study. And he also changed the original
7842 rates set by the arbitration panel charged with setting rates. But the
7843 basic difference between Internet radio and terrestrial radio remains:
7844 Internet radio has to pay a <span class="emphasis"><em>type of copyright fee</em></span>
7845 that terrestrial radio does not.
7846 </p><p>
7847 Why? What justifies this difference? Was there any study of the
7848 economic consequences from Internet radio that would justify these
7849 differences? Was the motive to protect artists against piracy?
7850 </p><a class="indexterm" name="idp9645824"></a><a class="indexterm" name="idxalbenalex2"></a><a class="indexterm" name="idxrecordingindustryassociationofamericariaaoninternetradiofees2"></a><a class="indexterm" name="idxartistsrecordingindustrypaymentsto4"></a><a class="indexterm" name="idxrecordingindustryartistremunerationin4"></a><p>
7851 In a rare bit of candor, one RIAA expert admitted what seemed obvious
7852 to everyone at the time. As Alex Alben, vice president for Public
7853 Policy at Real Networks, told me,
7854 </p><div class="blockquote"><blockquote class="blockquote"><p>
7855 The RIAA, which was representing the record labels, presented
7856 some testimony about what they thought a willing buyer would
7857 pay to a willing seller, and it was much higher. It was ten times
7858 higher than what radio stations pay to perform the same songs for
7859 the same period of time. And so the attorneys representing the
7860 webcasters asked the RIAA, &#8230; <span class="quote">«<span class="quote">How  do  you  come  up  with a
7861
7862
7863 rate that's so much higher? Why is it worth more than radio?  Because
7864 here we have hundreds of thousands of webcasters who want to pay, and
7865 that should establish the market rate, and if you set the rate so
7866 high, you're going to drive the small webcasters out of
7867 business. &#8230;</span>»</span>
7868 </p><a class="indexterm" name="idp9656560"></a><p>
7869 And the RIAA experts said, <span class="quote">«<span class="quote">Well, we don't really model this as an
7870 industry with thousands of webcasters, <span class="emphasis"><em>we think it should be
7871 an industry with, you know, five or seven big players who can pay a
7872 high rate and it's a stable, predictable market</em></span>.</span>»</span> (Emphasis
7873 added.)
7874 </p></blockquote></div><a class="indexterm" name="idp9659264"></a><a class="indexterm" name="idp9660512"></a><a class="indexterm" name="idp9661920"></a><a class="indexterm" name="idp9663312"></a><p>
7875 Translation: The aim is to use the law to eliminate competition, so
7876 that this platform of potentially immense competition, which would
7877 cause the diversity and range of content available to explode, would not
7878 cause pain to the dinosaurs of old. There is no one, on either the right
7879 or the left, who should endorse this use of the law. And yet there is
7880 practically no one, on either the right or the left, who is doing anything
7881 effective to prevent it.
7882 </p><a class="indexterm" name="idp9665552"></a><a class="indexterm" name="idp9666880"></a><a class="indexterm" name="idp9668272"></a><a class="indexterm" name="idp9669648"></a><a class="indexterm" name="idp9670896"></a><a class="indexterm" name="idp9672208"></a></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="corruptingcitizens"></a>12.3. Corrupting Citizens</h2></div></div></div><p>
7883 Overregulation stifles creativity. It smothers innovation. It gives
7884                 dinosaurs
7885 a veto over the future. It wastes the extraordinary opportunity
7886 for a democratic creativity that digital technology enables.
7887 </p><p>
7888 In addition to these important harms, there is one more that was
7889 important to our forebears, but seems forgotten today. Overregulation
7890 corrupts citizens and weakens the rule of law.
7891 </p><p>
7892 The war that is being waged today is a war of prohibition. As with
7893 every war of prohibition, it is targeted against the behavior of a very
7894 large number of citizens. According to <em class="citetitle">The New York Times</em>, 43 million
7895 Americans downloaded music in May 2002.<a href="#ftn.idp9676976" class="footnote" name="idp9676976"><sup class="footnote">[171]</sup></a>
7896  According to the RIAA,
7897 the behavior of those 43 million Americans is a felony. We thus have a
7898 set of rules that transform 20 percent of America into criminals. As the
7899
7900
7901 RIAA launches lawsuits against not only the Napsters and Kazaas of
7902 the world, but against students building search engines, and
7903                 increasingly
7904 against ordinary users downloading content, the technologies for
7905 sharing will advance to further protect and hide illegal use. It is an arms
7906 race or a civil war, with the extremes of one side inviting a more
7907                 extreme
7908 response by the other.
7909 </p><p>
7910 The content industry's tactics exploit the failings of the American
7911 legal system. When the RIAA brought suit against Jesse Jordan, it
7912 knew that in Jordan it had found a scapegoat, not a defendant. The
7913 threat of having to pay either all the money in the world in damages
7914 ($15,000,000) or almost all the money in the world to defend against
7915 paying all the money in the world in damages ($250,000 in legal fees)
7916 led Jordan to choose to pay all the money he had in the world
7917 ($12,000) to make the suit go away. The same strategy animates the
7918 RIAA's suits against individual users. In September 2003, the RIAA
7919 sued 261 individuals&#8212;including a twelve-year-old girl living in public
7920 housing and a seventy-year-old man who had no idea what file sharing
7921 was.<a href="#ftn.idp9613168" class="footnote" name="idp9613168"><sup class="footnote">[172]</sup></a>
7922 As these scapegoats discovered, it will always cost more to defend
7923 against these suits than it would cost to simply settle. (The twelve
7924 year old, for example, like Jesse Jordan, paid her life savings of $2,000
7925 to settle the case.) Our law is an awful system for defending rights. It
7926 is an embarrassment to our tradition. And the consequence of our law
7927 as it is, is that those with the power can use the law to quash any rights
7928 they oppose.
7929 </p><a class="indexterm" name="idp9683984"></a><p>
7930 Wars of prohibition are nothing new in America. This one is just
7931 something more extreme than anything we've seen before. We
7932 experimented with alcohol prohibition, at a time when the per capita
7933 consumption of alcohol was 1.5 gallons per capita per year. The war
7934 against drinking initially reduced that consumption to just 30 percent
7935 of its preprohibition levels, but by the end of prohibition,
7936 consumption was up to 70 percent of the preprohibition
7937 level. Americans were drinking just about as much, but now, a vast
7938 number were criminals.<a href="#ftn.idp9685616" class="footnote" name="idp9685616"><sup class="footnote">[173]</sup></a>
7939 We have
7940
7941 launched a war on drugs aimed at reducing the consumption of regulated
7942 narcotics that 7 percent (or 16 million) Americans now use.<a href="#ftn.idp9687904" class="footnote" name="idp9687904"><sup class="footnote">[174]</sup></a>
7943 That is a drop from the high (so to speak) in 1979 of 14 percent of
7944 the population. We regulate automobiles to the point where the vast
7945 majority of Americans violate the law every day. We run such a complex
7946 tax system that a majority of cash businesses regularly
7947 cheat.<a href="#ftn.idp9689232" class="footnote" name="idp9689232"><sup class="footnote">[175]</sup></a>
7948 We pride ourselves on our <span class="quote">«<span class="quote">free society,</span>»</span> but an endless array of
7949 ordinary behavior is regulated within our society. And as a result, a
7950 huge proportion of Americans regularly violate at least some law.
7951 </p><a class="indexterm" name="idp9691792"></a><p>
7952 This state of affairs is not without consequence. It is a particularly
7953 salient issue for teachers like me, whose job it is to teach law
7954 students about the importance of <span class="quote">«<span class="quote">ethics.</span>»</span> As my colleague Charlie
7955 Nesson told a class at Stanford, each year law schools admit thousands
7956 of students who have illegally downloaded music, illegally consumed
7957 alcohol and sometimes drugs, illegally worked without paying taxes,
7958 illegally driven cars. These are kids for whom behaving illegally is
7959 increasingly the norm. And then we, as law professors, are supposed to
7960 teach them how to behave ethically&#8212;how to say no to bribes, or
7961 keep client funds separate, or honor a demand to disclose a document
7962 that will mean that your case is over. Generations of
7963 Americans&#8212;more significantly in some parts of America than in
7964 others, but still, everywhere in America today&#8212;can't live their
7965 lives both normally and legally, since <span class="quote">«<span class="quote">normally</span>»</span> entails a certain
7966 degree of illegality.
7967 </p><p>
7968 The response to this general illegality is either to enforce the law
7969 more severely or to change the law. We, as a society, have to learn
7970 how to make that choice more rationally. Whether a law makes sense
7971 depends, in part, at least, upon whether the costs of the law, both
7972 intended and collateral, outweigh the benefits. If the costs, intended
7973 and collateral, do outweigh the benefits, then the law ought to be
7974 changed.  Alternatively, if the costs of the existing system are much
7975 greater than the costs of an alternative, then we have a good reason
7976 to consider the alternative.
7977 </p><p>
7978
7979
7980 My point is not the idiotic one: Just because people violate a law, we
7981 should therefore repeal it. Obviously, we could reduce murder statistics
7982 dramatically by legalizing murder on Wednesdays and Fridays. But
7983 that wouldn't make any sense, since murder is wrong every day of the
7984 week. A society is right to ban murder always and everywhere.
7985 </p><p>
7986 My point is instead one that democracies understood for generations,
7987 but that we recently have learned to forget. The rule of law depends
7988 upon people obeying the law. The more often, and more repeatedly, we
7989 as citizens experience violating the law, the less we respect the
7990 law. Obviously, in most cases, the important issue is the law, not
7991 respect for the law. I don't care whether the rapist respects the law
7992 or not; I want to catch and incarcerate the rapist. But I do care
7993 whether my students respect the law. And I do care if the rules of law
7994 sow increasing disrespect because of the extreme of regulation they
7995 impose.  Twenty million Americans have come of age since the Internet
7996 introduced this different idea of <span class="quote">«<span class="quote">sharing.</span>»</span> We need to be able to
7997 call these twenty million Americans <span class="quote">«<span class="quote">citizens,</span>»</span> not <span class="quote">«<span class="quote">felons.</span>»</span>
7998 </p><p>
7999 When at least forty-three million citizens download content from the
8000 Internet, and when they use tools to combine that content in ways
8001 unauthorized by copyright holders, the first question we should be
8002 asking is not how best to involve the FBI. The first question should
8003 be whether this particular prohibition is really necessary in order to
8004 achieve the proper ends that copyright law serves. Is there another
8005 way to assure that artists get paid without transforming forty-three
8006 million Americans into felons? Does it make sense if there are other
8007 ways to assure that artists get paid without transforming America into
8008 a nation of felons?
8009 </p><p>
8010 This abstract point can be made more clear with a particular example.
8011 </p><p>
8012 We all own CDs. Many of us still own phonograph records. These pieces
8013 of plastic encode music that in a certain sense we have bought.  The
8014 law protects our right to buy and sell that plastic: It is not a
8015 copyright infringement for me to sell all my classical records at a
8016 used
8017
8018
8019 record store and buy jazz records to replace them. That <span class="quote">«<span class="quote">use</span>»</span> of the
8020 recordings is free.
8021 </p><p>
8022 But as the MP3 craze has demonstrated, there is another use of
8023 phonograph records that is effectively free. Because these recordings
8024 were made without copy-protection technologies, I am <span class="quote">«<span class="quote">free</span>»</span> to copy,
8025 or <span class="quote">«<span class="quote">rip,</span>»</span> music from my records onto a computer hard disk. Indeed,
8026 Apple Corporation went so far as to suggest that <span class="quote">«<span class="quote">freedom</span>»</span> was a
8027 right: In a series of commercials, Apple endorsed the <span class="quote">«<span class="quote">Rip, Mix, Burn</span>»</span>
8028 capacities of digital technologies.
8029 </p><a class="indexterm" name="idp9704992"></a><a class="indexterm" name="idxcdsmix"></a><p>
8030 This <span class="quote">«<span class="quote">use</span>»</span> of my records is certainly valuable. I have begun a large
8031 process at home of ripping all of my and my wife's CDs, and storing
8032 them in one archive. Then, using Apple's iTunes, or a wonderful
8033 program called Andromeda, we can build different play lists of our
8034 music: Bach, Baroque, Love Songs, Love Songs of Significant
8035 Others&#8212;the potential is endless. And by reducing the costs of
8036 mixing play lists, these technologies help build a creativity with
8037 play lists that is itself independently valuable. Compilations of
8038 songs are creative and meaningful in their own right.
8039 </p><p>
8040 This use is enabled by unprotected media&#8212;either CDs or records.
8041 But unprotected media also enable file sharing. File sharing threatens
8042 (or so the content industry believes) the ability of creators to earn
8043 a fair return from their creativity. And thus, many are beginning to
8044 experiment with technologies to eliminate unprotected media. These
8045 technologies, for example, would enable CDs that could not be
8046 ripped. Or they might enable spy programs to identify ripped content
8047 on people's machines.
8048 </p><p>
8049 If these technologies took off, then the building of large archives of
8050 your own music would become quite difficult. You might hang in hacker
8051 circles, and get technology to disable the technologies that protect
8052 the content. Trading in those technologies is illegal, but maybe that
8053 doesn't bother you much. In any case, for the vast majority of people,
8054 these protection technologies would effectively destroy the archiving
8055
8056
8057 use of CDs. The technology, in other words, would force us all back to
8058 the world where we either listened to music by manipulating pieces of
8059 plastic or were part of a massively complex <span class="quote">«<span class="quote">digital rights
8060 management</span>»</span> system.
8061 </p><a class="indexterm" name="idp9711712"></a><p>
8062 If the only way to assure that artists get paid were the elimination
8063 of the ability to freely move content, then these technologies to
8064 interfere with the freedom to move content would be justifiable. But
8065 what if there were another way to assure that artists are paid,
8066 without locking down any content? What if, in other words, a different
8067 system could assure compensation to artists while also preserving the
8068 freedom to move content easily?
8069 </p><p>
8070 My point just now is not to prove that there is such a system. I offer
8071 a version of such a system in the last chapter of this book. For now,
8072 the only point is the relatively uncontroversial one: If a different
8073 system achieved the same legitimate objectives that the existing
8074 copyright system achieved, but left consumers and creators much more
8075 free, then we'd have a very good reason to pursue this
8076 alternative&#8212;namely, freedom.  The choice, in other words, would
8077 not be between property and piracy; the choice would be between
8078 different property systems and the freedoms each allowed.
8079 </p><p>
8080 I believe there is a way to assure that artists are paid without
8081 turning forty-three million Americans into felons. But the salient
8082 feature of this alternative is that it would lead to a very different
8083 market for producing and distributing creativity. The dominant few,
8084 who today control the vast majority of the distribution of content in
8085 the world, would no longer exercise this extreme of control. Rather,
8086 they would go the way of the horse-drawn buggy.
8087 </p><p>
8088 Except that this generation's buggy manufacturers have already saddled
8089 Congress, and are riding the law to protect themselves against this
8090 new form of competition. For them the choice is between fortythree
8091 million Americans as criminals and their own survival.
8092 </p><p>
8093 It is understandable why they choose as they do. It is not
8094 understandable why we as a democracy continue to choose as we do. Jack
8095
8096
8097
8098 Valenti is charming; but not so charming as to justify giving up a
8099 tradition as deep and important as our tradition of free culture.
8100 </p><a class="indexterm" name="idp9717328"></a><a class="indexterm" name="idxisps"></a><p>
8101 <span class="strong"><strong>There's one more</strong></span> aspect to this
8102 corruption that is particularly important to civil liberties, and
8103 follows directly from any war of prohibition.  As Electronic Frontier
8104 Foundation attorney Fred von Lohmann describes, this is the
8105 <span class="quote">«<span class="quote">collateral damage</span>»</span> that <span class="quote">«<span class="quote">arises whenever you turn
8106 a very large percentage of the population into criminals.</span>»</span> This
8107 is the collateral damage to civil liberties generally.
8108 </p><a class="indexterm" name="idp9721824"></a><p>
8109 <span class="quote">«<span class="quote">If you can treat someone as a putative lawbreaker,</span>»</span> von Lohmann
8110 explains,
8111 </p><div class="blockquote"><blockquote class="blockquote"><p>
8112 then all of a sudden a lot of basic civil liberty protections
8113 evaporate to one degree or another. &#8230; If you're a copyright
8114 infringer, how can you hope to have any privacy rights? If you're a
8115 copyright infringer, how can you hope to be secure against seizures of
8116 your computer? How can you hope to continue to receive Internet
8117 access? &#8230; Our sensibilities change as soon as we think, <span class="quote">«<span class="quote">Oh, well,
8118 but that person's a criminal, a lawbreaker.</span>»</span> Well, what this campaign
8119 against file sharing has done is turn a remarkable percentage of the
8120 American Internet-using population into <span class="quote">«<span class="quote">lawbreakers.</span>»</span>
8121 </p></blockquote></div><p>
8122 And the consequence of this transformation of the American public
8123 into criminals is that it becomes trivial, as a matter of due process, to
8124 effectively erase much of the privacy most would presume.
8125 </p><p>
8126 Users of the Internet began to see this generally in 2003 as the RIAA
8127 launched its campaign to force Internet service providers to turn over
8128 the names of customers who the RIAA believed were violating copyright
8129 law. Verizon fought that demand and lost. With a simple request to a
8130 judge, and without any notice to the customer at all, the identity of
8131 an Internet user is revealed.
8132 </p><p>
8133
8134 The RIAA then expanded this campaign, by announcing a general strategy
8135 to sue individual users of the Internet who are alleged to have
8136 downloaded copyrighted music from file-sharing systems. But as we've
8137 seen, the potential damages from these suits are astronomical: If a
8138 family's computer is used to download a single CD's worth of music,
8139 the family could be liable for $2 million in damages. That didn't stop
8140 the RIAA from suing a number of these families, just as they had sued
8141 Jesse Jordan.<a href="#ftn.idp9728288" class="footnote" name="idp9728288"><sup class="footnote">[176]</sup></a>
8142
8143 </p><p>
8144 Even this understates the espionage that is being waged by the
8145 RIAA. A report from CNN late last summer described a strategy the
8146 RIAA had adopted to track Napster users.<a href="#ftn.idp9734432" class="footnote" name="idp9734432"><sup class="footnote">[177]</sup></a>
8147 Using a sophisticated hashing algorithm, the RIAA took what is in
8148 effect a fingerprint of every song in the Napster catalog. Any copy of
8149 one of those MP3s will have the same <span class="quote">«<span class="quote">fingerprint.</span>»</span>
8150 </p><p>
8151 So imagine the following not-implausible scenario: Imagine a
8152 friend gives a CD to your daughter&#8212;a collection of songs just
8153 like the cassettes you used to make as a kid. You don't know, and
8154 neither does your daughter, where these songs came from. But she
8155 copies these songs onto her computer. She then takes her computer to
8156 college and connects it to a college network, and if the college
8157 network is <span class="quote">«<span class="quote">cooperating</span>»</span> with the RIAA's espionage, and she hasn't
8158 properly protected her content from the network (do you know how to do
8159 that yourself ?), then the RIAA will be able to identify your daughter
8160 as a <span class="quote">«<span class="quote">criminal.</span>»</span>  And under the rules that universities are beginning
8161 to deploy,<a href="#ftn.idp9739040" class="footnote" name="idp9739040"><sup class="footnote">[178]</sup></a>
8162 your daughter can lose the right to use the university's computer
8163 network.  She can, in some cases, be expelled.
8164 </p><a class="indexterm" name="idp9747376"></a><a class="indexterm" name="idp9748688"></a><p>
8165 Now, of course, she'll have the right to defend herself. You can hire
8166 a lawyer for her (at $300 per hour, if you're lucky), and she can
8167 plead that she didn't know anything about the source of the songs or
8168 that they came from Napster. And it may well be that the university
8169 believes her. But the university might not believe her. It might treat
8170 this <span class="quote">«<span class="quote">contraband</span>»</span> as presumptive of guilt. And as any number of
8171 college students
8172
8173
8174 have already learned, our presumptions about innocence disappear in
8175 the middle of wars of prohibition. This war is no different.
8176 Says von Lohmann,
8177 </p><div class="blockquote"><blockquote class="blockquote"><p>
8178 So when we're talking about numbers like forty to sixty million
8179 Americans that are essentially copyright infringers, you create a
8180 situation where the civil liberties of those people are very much in
8181 peril in a general matter. [I don't] think [there is any] analog where
8182 you could randomly choose any person off the street and be confident
8183 that they were committing an unlawful act that could put them on the
8184 hook for potential felony liability or hundreds of millions of dollars
8185 of civil liability. Certainly we all speed, but speeding isn't the
8186 kind of an act for which we routinely forfeit civil liberties. Some
8187 people use drugs, and I think that's the closest analog, [but] many
8188 have noted that the war against drugs has eroded all of our civil
8189 liberties because it's treated so many Americans as criminals. Well, I
8190 think it's fair to say that file sharing is an order of magnitude
8191 larger number of Americans than drug use. &#8230; If forty to sixty
8192 million Americans have become lawbreakers, then we're really on a
8193 slippery slope to lose a lot of civil liberties for all forty to sixty
8194 million of them.
8195 </p></blockquote></div><p>
8196 When forty to sixty million Americans are considered <span class="quote">«<span class="quote">criminals</span>»</span> under
8197 the law, and when the law could achieve the same objective&#8212;
8198 securing rights to authors&#8212;without these millions being
8199 considered <span class="quote">«<span class="quote">criminals,</span>»</span> who is the villain? Americans or the law?
8200 Which is American, a constant war on our own people or a concerted
8201 effort through our democracy to change our law?
8202 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp9423312" class="footnote"><p><a href="#idp9423312" class="para"><sup class="para">[157] </sup></a>
8203
8204 See Lynne W. Jeter, <em class="citetitle">Disconnected: Deceit and Betrayal at WorldCom</em>
8205 (Hoboken, N.J.: John Wiley &amp; Sons, 2003), 176, 204; for details of
8206 the settlement, see MCI press release, <span class="quote">«<span class="quote">MCI Wins U.S. District Court
8207 Approval for SEC Settlement</span>»</span> (7 July 2003), available at
8208 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #37</a>.
8209 <a class="indexterm" name="idp9426048"></a>
8210 </p></div><div id="ftn.idp9427200" class="footnote"><p><a href="#idp9427200" class="para"><sup class="para">[158] </sup></a>
8211  The bill, modeled after California's tort reform model, was passed in the
8212 House of Representatives but defeated in a Senate vote in July 2003. For
8213 an overview, see Tanya Albert, <span class="quote">«<span class="quote">Measure Stalls in Senate: `We'll Be Back,'
8214 Say Tort Reformers,</span>»</span> amednews.com, 28 July 2003, available at
8215 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #38</a>,
8216 and <span class="quote">«<span class="quote">Senate Turns Back Malpractice Caps,</span>»</span> CBSNews.com, 9 July 2003,
8217 available at
8218 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #39</a>. President Bush has continued to urge tort reform in
8219 recent months.
8220 <a class="indexterm" name="idp9430768"></a>
8221 </p></div><div id="ftn.idp9435200" class="footnote"><p><a href="#idp9435200" class="para"><sup class="para">[159] </sup></a>
8222
8223
8224 See Danit Lidor, <span class="quote">«<span class="quote">Artists Just Wanna Be Free,</span>»</span> <em class="citetitle">Wired</em>, 7 July
8225 2003, available at
8226 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #40</a>. For an overview of the exhibition, see
8227 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #41</a>.
8228 </p></div><div id="ftn.idp9518368" class="footnote"><p><a href="#idp9518368" class="para"><sup class="para">[160] </sup></a>
8229
8230 See Joseph Menn, <span class="quote">«<span class="quote">Universal, EMI Sue Napster Investor,</span>»</span> <em class="citetitle">Los Angeles
8231 Times</em>, 23 April 2003. For a parallel argument about the effects on
8232 innovation in the distribution of music, see Janelle Brown, <span class="quote">«<span class="quote">The Music
8233 Revolution Will Not Be Digitized,</span>»</span> Salon.com, 1 June 2001, available
8234 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #42</a>.
8235 See also Jon Healey, <span class="quote">«<span class="quote">Online Music Services Besieged,</span>»</span> <em class="citetitle">Los Angeles
8236 Times</em>, 28 May 2001.
8237 </p></div><div id="ftn.idp9451520" class="footnote"><p><a href="#idp9451520" class="para"><sup class="para">[161] </sup></a>
8238
8239 Rafe Needleman, <span class="quote">«<span class="quote">Driving in Cars with MP3s,</span>»</span> <em class="citetitle">Business 2.0</em>, 16 June
8240 2003, available at
8241 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #43</a>. I am grateful
8242 to Dr. Mohammad Al-Ubaydli for this example.
8243 <a class="indexterm" name="idp9527152"></a>
8244 </p></div><div id="ftn.idp9544576" class="footnote"><p><a href="#idp9544576" class="para"><sup class="para">[162] </sup></a>
8245  <span class="quote">«<span class="quote">Copyright and Digital Media in a Post-Napster World,</span>»</span> GartnerG2 and
8246 the Berkman Center for Internet and Society at Harvard Law School
8247 (2003), 33&#8211;35, available at
8248 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #44</a>.
8249 </p></div><div id="ftn.idp9547520" class="footnote"><p><a href="#idp9547520" class="para"><sup class="para">[163] </sup></a>
8250
8251 GartnerG2, 26&#8211;27.
8252 </p></div><div id="ftn.idp9550832" class="footnote"><p><a href="#idp9550832" class="para"><sup class="para">[164] </sup></a>
8253
8254 See David McGuire, <span class="quote">«<span class="quote">Tech Execs Square Off Over Piracy,</span>»</span> Newsbytes,
8255 February 2002 (Entertainment).
8256 </p></div><div id="ftn.idp9560064" class="footnote"><p><a href="#idp9560064" class="para"><sup class="para">[165] </sup></a>
8257
8258 Jessica Litman, <em class="citetitle">Digital Copyright</em> (Amherst,
8259 N.Y.: Prometheus Books, 2001).
8260 <a class="indexterm" name="idp9561280"></a>
8261 <a class="indexterm" name="idp9562112"></a>
8262 </p></div><div id="ftn.idp9569040" class="footnote"><p><a href="#idp9569040" class="para"><sup class="para">[166] </sup></a>
8263
8264 <a class="indexterm" name="idp9569776"></a>
8265 The only circuit court exception is found in <em class="citetitle">Recording Industry
8266 Association of America (RIAA)</em> v. <em class="citetitle">Diamond Multimedia Systems</em>, 180 F. 3d
8267 1072 (9th Cir. 1999). There the court of appeals for the Ninth Circuit
8268 reasoned that makers of a portable MP3 player were not liable for
8269 contributory copyright infringement for a device that is unable to
8270 record or redistribute music (a device whose only copying function is
8271 to render portable a music file already stored on a user's hard
8272 drive).  At the district court level, the only exception is found in
8273 <em class="citetitle">Metro-Goldwyn-Mayer Studios, Inc</em>. v. <em class="citetitle">Grokster, Ltd</em>., 259 F. Supp. 2d
8274 1029 (C.D.  Cal., 2003), where the court found the link between the
8275 distributor and any given user's conduct too attenuated to make the
8276 distributor liable for contributory or vicarious infringement
8277 liability.
8278 </p></div><div id="ftn.idp9573360" class="footnote"><p><a href="#idp9573360" class="para"><sup class="para">[167] </sup></a>
8279
8280 <a class="indexterm" name="idp9574096"></a>
8281 <a class="indexterm" name="idp9574880"></a>
8282 <a class="indexterm" name="idp9575696"></a>
8283 <a class="indexterm" name="idp9576512"></a>
8284 For example, in July 2002, Representative Howard Berman introduced the
8285 Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize
8286 copyright holders from liability for damage done to computers when the
8287 copyright holders use technology to stop copyright infringement. In
8288 August 2002, Representative Billy Tauzin introduced a bill to mandate
8289 that technologies capable of rebroadcasting digital copies of films
8290 broadcast on TV (i.e., computers) respect a <span class="quote">«<span class="quote">broadcast flag</span>»</span> that
8291 would disable copying of that content. And in March of the same year,
8292 Senator Fritz Hollings introduced the Consumer Broadband and Digital
8293 Television Promotion Act, which mandated copyright protection
8294 technology in all digital media devices. See GartnerG2, <span class="quote">«<span class="quote">Copyright and
8295 Digital Media in a Post-Napster World,</span>»</span> 27 June 2003, 33&#8211;34,
8296 available at
8297 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #44</a>.
8298 </p></div><div id="ftn.idp9524608" class="footnote"><p><a href="#idp9524608" class="para"><sup class="para">[168] </sup></a>
8299
8300 Lessing, 239.
8301 </p></div><div id="ftn.idp9594656" class="footnote"><p><a href="#idp9594656" class="para"><sup class="para">[169] </sup></a>
8302
8303 Ibid., 229.
8304 </p></div><div id="ftn.idp9614064" class="footnote"><p><a href="#idp9614064" class="para"><sup class="para">[170] </sup></a>
8305
8306 This example was derived from fees set by the original Copyright
8307 Arbitration Royalty Panel (CARP) proceedings, and is drawn from an
8308 example offered by Professor William Fisher. Conference Proceedings,
8309 iLaw (Stanford), 3 July 2003, on file with author. Professors Fisher
8310 and Zittrain submitted testimony in the CARP proceeding that was
8311 ultimately rejected.  See Jonathan Zittrain, Digital Performance Right
8312 in Sound Recordings and Ephemeral Recordings, Docket No. 2000-9, CARP
8313 DTRA 1 and 2, available at
8314 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #45</a>.
8315 For an excellent analysis making a similar point, see Randal
8316 C. Picker, <span class="quote">«<span class="quote">Copyright as Entry Policy: The Case of Digital
8317 Distribution,</span>»</span> <em class="citetitle">Antitrust Bulletin</em> (Summer/Fall 2002): 461: <span class="quote">«<span class="quote">This was
8318 not confusion, these are just old-fashioned entry barriers. Analog
8319 radio stations are protected from digital entrants, reducing entry in
8320 radio and diversity. Yes, this is done in the name of getting
8321 royalties to copyright holders, but, absent the play of powerful
8322 interests, that could have been done in a media-neutral way.</span>»</span>
8323 <a class="indexterm" name="idp9617776"></a>
8324 <a class="indexterm" name="idp9618560"></a>
8325 </p></div><div id="ftn.idp9676976" class="footnote"><p><a href="#idp9676976" class="para"><sup class="para">[171] </sup></a>
8326  Mike Graziano and Lee Rainie, <span class="quote">«<span class="quote">The Music Downloading Deluge,</span>»</span> Pew
8327 Internet and American Life Project (24 April 2001), available at
8328 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #46</a>.
8329 The Pew Internet and American Life Project reported that 37 million
8330 Americans had downloaded music files from the Internet by early 2001.
8331 </p></div><div id="ftn.idp9613168" class="footnote"><p><a href="#idp9613168" class="para"><sup class="para">[172] </sup></a>
8332
8333 Alex Pham, <span class="quote">«<span class="quote">The Labels Strike Back: N.Y. Girl Settles RIAA Case,</span>»</span> <em class="citetitle">Los
8334 Angeles Times</em>, 10 September 2003, Business.
8335 </p></div><div id="ftn.idp9685616" class="footnote"><p><a href="#idp9685616" class="para"><sup class="para">[173] </sup></a>
8336
8337 Jeffrey A. Miron and Jeffrey Zwiebel, <span class="quote">«<span class="quote">Alcohol Consumption During
8338 Prohibition,</span>»</span> <em class="citetitle">American Economic Review</em> 81, no. 2 (1991): 242.
8339 </p></div><div id="ftn.idp9687904" class="footnote"><p><a href="#idp9687904" class="para"><sup class="para">[174] </sup></a>
8340
8341 National Drug Control Policy: Hearing Before the House Government
8342 Reform Committee, 108th Cong., 1st sess. (5 March 2003) (statement of
8343 John P. Walters, director of National Drug Control Policy).
8344 </p></div><div id="ftn.idp9689232" class="footnote"><p><a href="#idp9689232" class="para"><sup class="para">[175] </sup></a>
8345
8346 See James Andreoni, Brian Erard, and Jonathon Feinstein, <span class="quote">«<span class="quote">Tax
8347 Compliance,</span>»</span> <em class="citetitle">Journal of Economic Literature</em> 36 (1998): 818 (survey of
8348 compliance literature).
8349 </p></div><div id="ftn.idp9728288" class="footnote"><p><a href="#idp9728288" class="para"><sup class="para">[176] </sup></a>
8350
8351 See Frank Ahrens, <span class="quote">«<span class="quote">RIAA's Lawsuits Meet Surprised Targets; Single
8352 Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,</span>»</span>
8353 <em class="citetitle">Washington Post</em>, 10 September 2003, E1; Chris Cobbs, <span class="quote">«<span class="quote">Worried Parents
8354 Pull Plug on File `Stealing'; With the Music Industry Cracking Down on
8355 File Swapping, Parents are Yanking Software from Home PCs to Avoid
8356 Being Sued,</span>»</span> <em class="citetitle">Orlando Sentinel Tribune</em>, 30 August 2003, C1; Jefferson
8357 Graham, <span class="quote">«<span class="quote">Recording Industry Sues Parents,</span>»</span> <em class="citetitle">USA Today</em>, 15 September
8358 2003, 4D; John Schwartz, <span class="quote">«<span class="quote">She Says She's No Music Pirate. No Snoop
8359 Fan, Either,</span>»</span> <em class="citetitle">New York Times</em>, 25 September 2003, C1; Margo Varadi, <span class="quote">«<span class="quote">Is
8360 Brianna a Criminal?</span>»</span> <em class="citetitle">Toronto Star</em>, 18 September 2003, P7.
8361 </p></div><div id="ftn.idp9734432" class="footnote"><p><a href="#idp9734432" class="para"><sup class="para">[177] </sup></a>
8362
8363 See <span class="quote">«<span class="quote">Revealed: How RIAA Tracks Downloaders: Music Industry Discloses
8364 Some Methods Used,</span>»</span> CNN.com, available at
8365 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #47</a>.
8366 </p></div><div id="ftn.idp9739040" class="footnote"><p><a href="#idp9739040" class="para"><sup class="para">[178] </sup></a>
8367
8368 See Jeff Adler, <span class="quote">«<span class="quote">Cambridge: On Campus, Pirates Are Not Penitent,</span>»</span>
8369 <em class="citetitle">Boston Globe</em>, 18 May 2003, City Weekly, 1; Frank Ahrens, <span class="quote">«<span class="quote">Four
8370 Students Sued over Music Sites; Industry Group Targets File Sharing at
8371 Colleges,</span>»</span> <em class="citetitle">Washington Post</em>, 4 April 2003, E1; Elizabeth Armstrong,
8372 <span class="quote">«<span class="quote">Students `Rip, Mix, Burn' at Their Own Risk,</span>»</span> <em class="citetitle">Christian Science
8373 Monitor</em>, 2 September 2003, 20; Robert Becker and Angela Rozas, <span class="quote">«<span class="quote">Music
8374 Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over;
8375 Lawsuit Possible,</span>»</span> <em class="citetitle">Chicago Tribune</em>, 16 July 2003, 1C; Beth Cox, <span class="quote">«<span class="quote">RIAA
8376 Trains Antipiracy Guns on Universities,</span>»</span> <em class="citetitle">Internet News</em>, 30 January
8377 2003, available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
8378 #48</a>; Benny Evangelista, <span class="quote">«<span class="quote">Download Warning 101: Freshman
8379 Orientation This Fall to Include Record Industry Warnings Against File
8380 Sharing,</span>»</span> <em class="citetitle">San Francisco Chronicle</em>, 11 August 2003, E11; <span class="quote">«<span class="quote">Raid, Letters
8381 Are Weapons at Universities,</span>»</span> <em class="citetitle">USA Today</em>, 26 September 2000, 3D.
8382 </p></div></div></div></div><div class="part"><div class="titlepage"><div><div><h1 class="title"><a name="c-balances"></a>Part IV. Balances</h1></div></div></div><div class="partintro"><div></div><p>
8383 <span class="strong"><strong>So here's</strong></span> the picture: You're
8384 standing at the side of the road. Your car is on fire. You are angry
8385 and upset because in part you helped start the fire. Now you don't
8386 know how to put it out. Next to you is a bucket, filled with
8387 gasoline. Obviously, gasoline won't put the fire out.
8388 </p><p>
8389 As you ponder the mess, someone else comes along. In a panic, she
8390 grabs the bucket. Before you have a chance to tell her to
8391 stop&#8212;or before she understands just why she should
8392 stop&#8212;the bucket is in the air.  The gasoline is about to hit the
8393 blazing car. And the fire that gasoline will ignite is about to ignite
8394 everything around.
8395 </p><p>
8396 <span class="strong"><strong>A war</strong></span> about copyright rages all
8397 around&#8212;and we're all focusing on the wrong thing. No doubt,
8398 current technologies threaten existing businesses.  No doubt they may
8399 threaten artists. But technologies change.  The industry and
8400 technologists have plenty of ways to use technology to protect
8401 themselves against the current threats of the Internet. This is a fire
8402 that if let alone would burn itself out.
8403 </p><p>
8404
8405 Yet policy makers are not willing to leave this fire to itself. Primed
8406 with plenty of lobbyists' money, they are keen to intervene to
8407 eliminate the problem they perceive. But the problem they perceive is
8408 not the real threat this culture faces. For while we watch this small
8409 fire in the corner, there is a massive change in the way culture is
8410 made that is happening all around.
8411 </p><p>
8412 Somehow we have to find a way to turn attention to this more important
8413 and fundamental issue. Somehow we have to find a way to avoid pouring
8414 gasoline onto this fire.
8415 </p><p>
8416 We have not found that way yet. Instead, we seem trapped in a simpler,
8417 binary view. However much many people push to frame this debate more
8418 broadly, it is the simple, binary view that remains. We rubberneck to
8419 look at the fire when we should be keeping our eyes on the road.
8420 </p><p>
8421 This challenge has been my life these last few years. It has also been
8422 my failure. In the two chapters that follow, I describe one small
8423 brace of efforts, so far failed, to find a way to refocus this
8424 debate. We must understand these failures if we're to understand what
8425 success will require.
8426 </p></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="eldred"></a>Chapter 13. Chapter Thirteen: Eldred</h2></div></div></div><a class="indexterm" name="idxeldrederic"></a><a class="indexterm" name="idxhawthornenathaniel"></a><p>
8427 <span class="strong"><strong>In 1995</strong></span>, a father was frustrated
8428 that his daughters didn't seem to like Hawthorne. No doubt there was
8429 more than one such father, but at least one did something about
8430 it. Eric Eldred, a retired computer programmer living in New
8431 Hampshire, decided to put Hawthorne on the Web. An electronic version,
8432 Eldred thought, with links to pictures and explanatory text, would
8433 make this nineteenth-century author's work come alive.
8434 </p><a class="indexterm" name="idxlibrariesofpublicdomainliterature"></a><a class="indexterm" name="idxpublicdomainlibraryofworksderivedfrom"></a><p>
8435 It didn't work&#8212;at least for his daughters. They didn't find
8436 Hawthorne any more interesting than before. But Eldred's experiment
8437 gave birth to a hobby, and his hobby begat a cause: Eldred would build
8438 a library of public domain works by scanning these works and making
8439 them available for free.
8440 </p><a class="indexterm" name="idxdisneywalt5"></a><a class="indexterm" name="idp9776016"></a><p>
8441 Eldred's library was not simply a copy of certain public domain
8442 works, though even a copy would have been of great value to people
8443 across the world who can't get access to printed versions of these
8444 works. Instead, Eldred was producing derivative works from these
8445 public domain works. Just as Disney turned Grimm into stories more
8446
8447 accessible to the twentieth century, Eldred transformed Hawthorne, and
8448 many others, into a form more accessible&#8212;technically
8449 accessible&#8212;today.
8450 </p><a class="indexterm" name="idp9774112"></a><p>
8451 Eldred's freedom to do this with Hawthorne's work grew from the same
8452 source as Disney's. Hawthorne's <em class="citetitle">Scarlet Letter</em> had passed into the
8453 public domain in 1907. It was free for anyone to take without the
8454 permission of the Hawthorne estate or anyone else. Some, such as Dover
8455 Press and Penguin Classics, take works from the public domain and
8456 produce printed editions, which they sell in bookstores across the
8457 country. Others, such as Disney, take these stories and turn them into
8458 animated cartoons, sometimes successfully (<em class="citetitle">Cinderella</em>), sometimes not
8459 (<em class="citetitle">The Hunchback of Notre Dame</em>, <em class="citetitle">Treasure Planet</em>). These are all
8460 commercial publications of public domain works.
8461 </p><a class="indexterm" name="idp9781472"></a><a class="indexterm" name="idp9782784"></a><p>
8462 The Internet created the possibility of noncommercial publications of
8463 public domain works. Eldred's is just one example. There are literally
8464 thousands of others. Hundreds of thousands from across the world have
8465 discovered this platform of expression and now use it to share works
8466 that are, by law, free for the taking. This has produced what we might
8467 call the <span class="quote">«<span class="quote">noncommercial publishing industry,</span>»</span> which before the
8468 Internet was limited to people with large egos or with political or
8469 social causes. But with the Internet, it includes a wide range of
8470 individuals and groups dedicated to spreading culture
8471 generally.<a href="#ftn.idp9785408" class="footnote" name="idp9785408"><sup class="footnote">[179]</sup></a>
8472 </p><a class="indexterm" name="idxcongressuscopyrighttermsextendedby2"></a><a class="indexterm" name="idxcopyrightdurationof6"></a><a class="indexterm" name="idxcopyrightlawtermextensionsin2"></a><a class="indexterm" name="idp9793824"></a><a class="indexterm" name="idp9794640"></a><a class="indexterm" name="idp9795456"></a><a class="indexterm" name="idxpatentsfuturepatentsvsfuturecopyrightsin"></a><p>
8473 As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's
8474 collection of poems <em class="citetitle">New Hampshire</em> was slated to
8475 pass into the public domain. Eldred wanted to post that collection in
8476 his free public library.  But Congress got in the way. As I described
8477 in chapter <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>, in 1998, for the eleventh time in forty years,
8478 Congress extended the terms of existing copyrights&#8212;this time by
8479 twenty years. Eldred would not be free to add any works more recent
8480 than 1923 to his collection until 2019.  Indeed, no copyrighted work
8481 would pass into the public domain until that year (and not even then,
8482 if Congress extends the term again). By contrast, in the same period,
8483 more than 1 million patents will pass into the public domain.
8484 </p><a class="indexterm" name="idp9801056"></a><a class="indexterm" name="idp9802240"></a><a class="indexterm" name="idp9803568"></a><a class="indexterm" name="idp9804384"></a><a class="indexterm" name="idxcopyrightinperpetuity4"></a><a class="indexterm" name="idxsonnybonocopyrighttermextensionactctea2"></a><p>
8485
8486
8487 This was the Sonny Bono Copyright Term Extension Act
8488 (CTEA), enacted in memory of the congressman and former musician
8489 Sonny Bono, who, his widow, Mary Bono, says, believed that
8490 <span class="quote">«<span class="quote">copyrights should be forever.</span>»</span><a href="#ftn.idp9809744" class="footnote" name="idp9809744"><sup class="footnote">[180]</sup></a>
8491 </p><a class="indexterm" name="idp9813200"></a><a class="indexterm" name="idp9814576"></a><a class="indexterm" name="idp9815696"></a><a class="indexterm" name="idp9816528"></a><a class="indexterm" name="idp9817360"></a><p>
8492 Eldred decided to fight this law. He first resolved to fight it through
8493 civil disobedience. In a series of interviews, Eldred announced that he
8494 would publish as planned, CTEA notwithstanding. But because of a
8495 second law passed in 1998, the NET (No Electronic Theft) Act, his act
8496 of publishing would make Eldred a felon&#8212;whether or not anyone
8497 complained. This was a dangerous strategy for a disabled programmer
8498 to undertake.
8499 </p><a class="indexterm" name="idp9818736"></a><a class="indexterm" name="idxcongressusconstitutionalpowersof"></a><a class="indexterm" name="idxconstitutionusprogressclauseof2"></a><a class="indexterm" name="idxprogressclause2"></a><a class="indexterm" name="idxlessiglawrenceeldredcaseinvolvementof"></a><p>
8500 It was here that I became involved in Eldred's battle. I was a
8501                 constitutional
8502 scholar whose first passion was constitutional
8503                 interpretation.
8504 And though constitutional law courses never focus upon the
8505 Progress Clause of the Constitution, it had always struck me as
8506                 importantly
8507 different. As you know, the Constitution says,
8508 </p><div class="blockquote"><blockquote class="blockquote"><p>
8509 Congress has the power to promote the Progress of Science &#8230;
8510 by securing for limited Times to Authors &#8230; exclusive Right to
8511 their &#8230; Writings. &#8230;
8512 </p></blockquote></div><a class="indexterm" name="idp9829696"></a><p>
8513 As I've described, this clause is unique within the power-granting
8514 clause of Article I, section 8 of our Constitution. Every other clause
8515 granting power to Congress simply says Congress has the power to do
8516 something&#8212;for example, to regulate <span class="quote">«<span class="quote">commerce among the several
8517 states</span>»</span> or <span class="quote">«<span class="quote">declare War.</span>»</span> But here, the <span class="quote">«<span class="quote">something</span>»</span> is something quite
8518 specific&#8212;to <span class="quote">«<span class="quote">promote &#8230; Progress</span>»</span>&#8212;through means that
8519 are also specific&#8212; by <span class="quote">«<span class="quote">securing</span>»</span> <span class="quote">«<span class="quote">exclusive Rights</span>»</span> (i.e.,
8520 copyrights) <span class="quote">«<span class="quote">for limited Times.</span>»</span>
8521 </p><a class="indexterm" name="idp9834672"></a><a class="indexterm" name="idp9835952"></a><a class="indexterm" name="idp9837216"></a><a class="indexterm" name="idp9838656"></a><p>
8522 In the past forty years, Congress has gotten into the practice of
8523 extending existing terms of copyright protection. What puzzled me
8524 about this was, if Congress has the power to extend existing terms,
8525 then the Constitution's requirement that terms be <span class="quote">«<span class="quote">limited</span>»</span> will have
8526
8527 no practical effect. If every time a copyright is about to expire,
8528 Congress has the power to extend its term, then Congress can achieve
8529 what the Constitution plainly forbids&#8212;perpetual terms <span class="quote">«<span class="quote">on the
8530 installment plan,</span>»</span> as Professor Peter Jaszi so nicely put it.
8531 </p><a class="indexterm" name="idp9841552"></a><a class="indexterm" name="idp9842912"></a><a class="indexterm" name="idp9844256"></a><p>
8532 As an academic, my first response was to hit the books. I remember
8533 sitting late at the office, scouring on-line databases for any serious
8534 consideration of the question. No one had ever challenged Congress's
8535 practice of extending existing terms. That failure may in part be why
8536 Congress seemed so untroubled in its habit. That, and the fact that
8537 the practice had become so lucrative for Congress. Congress knows that
8538 copyright owners will be willing to pay a great deal of money to see
8539 their copyright terms extended. And so Congress is quite happy to keep
8540 this gravy train going.
8541 </p><p>
8542 For this is the core of the corruption in our present system of
8543 government. <span class="quote">«<span class="quote">Corruption</span>»</span> not in the sense that representatives are
8544 bribed.  Rather, <span class="quote">«<span class="quote">corruption</span>»</span> in the sense that the system induces the
8545 beneficiaries of Congress's acts to raise and give money to Congress
8546 to induce it to act. There's only so much time; there's only so much
8547 Congress can do. Why not limit its actions to those things it must
8548 do&#8212;and those things that pay? Extending copyright terms pays.
8549 </p><p>
8550 If that's not obvious to you, consider the following: Say you're one
8551 of the very few lucky copyright owners whose copyright continues to
8552 make money one hundred years after it was created. The Estate of
8553 Robert Frost is a good example. Frost died in 1963. His poetry
8554 continues to be extraordinarily valuable. Thus the Robert Frost estate
8555 benefits greatly from any extension of copyright, since no publisher
8556 would pay the estate any money if the poems Frost wrote could be
8557 published by anyone for free.
8558 </p><p>
8559 So imagine the Robert Frost estate is earning $100,000 a year from
8560 three of Frost's poems. And imagine the copyright for those poems
8561 is about to expire. You sit on the board of the Robert Frost estate.
8562 Your financial adviser comes to your board meeting with a very grim
8563 report:
8564 </p><p>
8565 <span class="quote">«<span class="quote">Next year,</span>»</span> the adviser announces, <span class="quote">«<span class="quote">our copyrights in works A, B,
8566
8567
8568 and C will expire. That means that after next year, we will no longer be
8569 receiving the annual royalty check of $100,000 from the publishers of
8570 those works.</span>»</span>
8571 </p><p>
8572 <span class="quote">«<span class="quote">There's a proposal in Congress, however,</span>»</span> she continues, <span class="quote">«<span class="quote">that
8573 could change this. A few congressmen are floating a bill to extend the
8574 terms of copyright by twenty years. That bill would be extraordinarily
8575 valuable to us. So we should hope this bill passes.</span>»</span>
8576 </p><p>
8577 <span class="quote">«<span class="quote">Hope?</span>»</span> a fellow board member says. <span class="quote">«<span class="quote">Can't we be doing something
8578 about it?</span>»</span>
8579 </p><p>
8580 <span class="quote">«<span class="quote">Well, obviously, yes,</span>»</span> the adviser responds. <span class="quote">«<span class="quote">We could contribute
8581 to the campaigns of a number of representatives to try to assure that
8582 they support the bill.</span>»</span>
8583 </p><p>
8584 You hate politics. You hate contributing to campaigns. So you want
8585 to know whether this disgusting practice is worth it. <span class="quote">«<span class="quote">How much
8586 would we get if this extension were passed?</span>»</span> you ask the adviser. <span class="quote">«<span class="quote">How
8587 much is it worth?</span>»</span>
8588 </p><p>
8589 <span class="quote">«<span class="quote">Well,</span>»</span> the adviser says, <span class="quote">«<span class="quote">if you're confident that you will continue
8590 to get at least $100,000 a year from these copyrights, and you use the
8591 `discount rate' that we use to evaluate estate investments (6 percent),
8592 then this law would be worth $1,146,000 to the estate.</span>»</span>
8593 </p><p>
8594 You're a bit shocked by the number, but you quickly come to the
8595 correct conclusion:
8596 </p><p>
8597 <span class="quote">«<span class="quote">So you're saying it would be worth it for us to pay more than
8598 $1,000,000 in campaign contributions if we were confident those
8599                 contributions
8600 would assure that the bill was passed?</span>»</span>
8601 </p><p>
8602 <span class="quote">«<span class="quote">Absolutely,</span>»</span> the adviser responds. <span class="quote">«<span class="quote">It is worth it to you to
8603                 contribute
8604 up to the `present value' of the income you expect from these
8605 copyrights. Which for us means over $1,000,000.</span>»</span>
8606 </p><p>
8607 You quickly get the point&#8212;you as the member of the board and, I
8608 trust, you the reader. Each time copyrights are about to expire, every
8609 beneficiary in the position of the Robert Frost estate faces the same
8610 choice: If they can contribute to get a law passed to extend copyrights,
8611
8612 they will benefit greatly from that extension. And so each time
8613         copyrights
8614 are about to expire, there is a massive amount of lobbying to get
8615 the copyright term extended.
8616 </p><p>
8617 Thus a congressional perpetual motion machine: So long as legislation
8618 can be bought (albeit indirectly), there will be all the incentive in
8619 the world to buy further extensions of copyright.
8620 </p><p>
8621 In the lobbying that led to the passage of the Sonny Bono
8622                 Copyright
8623 Term Extension Act, this <span class="quote">«<span class="quote">theory</span>»</span> about incentives was proved
8624 real. Ten of the thirteen original sponsors of the act in the House
8625 received the maximum contribution from Disney's political action
8626 committee; in the Senate, eight of the twelve sponsors received
8627                 contributions.<a href="#ftn.idp9863904" class="footnote" name="idp9863904"><sup class="footnote">[181]</sup></a>
8628  The RIAA and the MPAA are estimated to have spent over
8629 $1.5 million lobbying in the 1998 election cycle. They paid out more
8630 than $200,000 in campaign contributions.<a href="#ftn.idp9865904" class="footnote" name="idp9865904"><sup class="footnote">[182]</sup></a>
8631  Disney is estimated to have
8632 contributed more than $800,000 to reelection campaigns in the
8633 cycle.<a href="#ftn.idp9868016" class="footnote" name="idp9868016"><sup class="footnote">[183]</sup></a>
8634
8635 </p><p>
8636 <span class="strong"><strong>Constitutional law</strong></span> is not oblivious
8637 to the obvious. Or at least, it need not be. So when I was considering
8638 Eldred's complaint, this reality about the never-ending incentives to
8639 increase the copyright term was central to my thinking. In my view, a
8640 pragmatic court committed to interpreting and applying the
8641 Constitution of our framers would see that if Congress has the power
8642 to extend existing terms, then there would be no effective
8643 constitutional requirement that terms be <span class="quote">«<span class="quote">limited.</span>»</span> If
8644 they could extend it once, they would extend it again and again and
8645 again.
8646 </p><a class="indexterm" name="idp9872704"></a><a class="indexterm" name="idp9874096"></a><a class="indexterm" name="idp9875360"></a><p>
8647 It was also my judgment that <span class="emphasis"><em>this</em></span> Supreme Court
8648 would not allow Congress to extend existing terms. As anyone close to
8649 the Supreme Court's work knows, this Court has increasingly restricted
8650 the power of Congress when it has viewed Congress's actions as
8651 exceeding the power granted to it by the Constitution. Among
8652 constitutional scholars, the most famous example of this trend was the
8653 Supreme Court's
8654
8655
8656 decision in 1995 to strike down a law that banned the possession of
8657 guns near schools.
8658 </p><p>
8659 Since 1937, the Supreme Court had interpreted Congress's granted
8660 powers very broadly; so, while the Constitution grants Congress the
8661 power to regulate only <span class="quote">«<span class="quote">commerce among the several states</span>»</span> (aka
8662                 <span class="quote">«<span class="quote">interstate
8663 commerce</span>»</span>), the Supreme Court had interpreted that power to
8664 include the power to regulate any activity that merely affected
8665                 interstate
8666 commerce.
8667 </p><p>
8668 As the economy grew, this standard increasingly meant that there was
8669 no limit to Congress's power to regulate, since just about every
8670 activity, when considered on a national scale, affects interstate
8671 commerce.  A Constitution designed to limit Congress's power was
8672 instead interpreted to impose no limit.
8673 </p><a class="indexterm" name="idp9880640"></a><p>
8674 The Supreme Court, under Chief Justice Rehnquist's command, changed
8675 that in <em class="citetitle">United States</em> v. <em class="citetitle">Lopez</em>. The government had
8676 argued that possessing guns near schools affected interstate
8677 commerce. Guns near schools increase crime, crime lowers property
8678 values, and so on. In the oral argument, the Chief Justice asked the
8679 government whether there was any activity that would not affect
8680 interstate commerce under the reasoning the government advanced. The
8681 government said there was not; if Congress says an activity affects
8682 interstate commerce, then that activity affects interstate
8683 commerce. The Supreme Court, the government said, was not in the
8684 position to second-guess Congress.
8685 </p><p>
8686 <span class="quote">«<span class="quote">We pause to consider the implications of the government's arguments,</span>»</span>
8687 the Chief Justice wrote.<a href="#ftn.idp9884160" class="footnote" name="idp9884160"><sup class="footnote">[184]</sup></a>
8688 If anything Congress says is interstate commerce must therefore be
8689 considered interstate commerce, then there would be no limit to
8690 Congress's power. The decision in <em class="citetitle">Lopez</em> was reaffirmed five years
8691 later in <em class="citetitle">United States</em> v. <em class="citetitle">Morrison</em>.<a href="#ftn.idp9887408" class="footnote" name="idp9887408"><sup class="footnote">[185]</sup></a>
8692 </p><p>
8693 If a principle were at work here, then it should apply to the Progress
8694 Clause as much as the Commerce Clause.<a href="#ftn.idp9889648" class="footnote" name="idp9889648"><sup class="footnote">[186]</sup></a>
8695 And if it is applied to the Progress Clause, the principle should
8696 yield the conclusion that Congress
8697
8698 can't extend an existing term. If Congress could extend an existing
8699 term, then there would be no <span class="quote">«<span class="quote">stopping point</span>»</span> to Congress's power over
8700 terms, though the Constitution expressly states that there is such a
8701 limit. Thus, the same principle applied to the power to grant
8702 copyrights should entail that Congress is not allowed to extend the
8703 term of existing copyrights.
8704 </p><p>
8705 <span class="emphasis"><em>If</em></span>, that is, the principle announced in <em class="citetitle">Lopez</em>
8706 stood for a principle.  Many believed the decision in <em class="citetitle">Lopez</em> stood for
8707 politics&#8212;a conservative Supreme Court, which believed in states'
8708 rights, using its power over Congress to advance its own personal
8709 political preferences. But I rejected that view of the Supreme Court's
8710 decision. Indeed, shortly after the decision, I wrote an article
8711 demonstrating the <span class="quote">«<span class="quote">fidelity</span>»</span> in such an interpretation of the
8712 Constitution. The idea that the Supreme Court decides cases based upon
8713 its politics struck me as extraordinarily boring.  I was not going to
8714 devote my life to teaching constitutional law if these nine Justices
8715 were going to be petty politicians.
8716 </p><a class="indexterm" name="idp9895648"></a><a class="indexterm" name="idp9896736"></a><a class="indexterm" name="idp9897856"></a><a class="indexterm" name="idp9898960"></a><p>
8717 <span class="strong"><strong>Now let's pause</strong></span> for a moment to
8718 make sure we understand what the argument in
8719 <em class="citetitle">Eldred</em> was not about. By insisting on the
8720 Constitution's limits to copyright, obviously Eldred was not endorsing
8721 piracy.  Indeed, in an obvious sense, he was fighting a kind of
8722 piracy&#8212;piracy of the public domain. When Robert Frost wrote his
8723 work and when Walt Disney created Mickey Mouse, the maximum copyright
8724 term was just fifty-six years. Because of interim changes, Frost and
8725 Disney had already enjoyed a seventy-five-year monopoly for their
8726 work. They had gotten the benefit of the bargain that the Constitution
8727 envisions: In exchange for a monopoly protected for fifty-six years,
8728 they created new work. But now these entities were using their
8729 power&#8212;expressed through the power of lobbyists' money&#8212;to
8730 get another twenty-year dollop of monopoly. That twenty-year dollop
8731 would be taken from the public domain. Eric Eldred was fighting a
8732 piracy that affects us all.
8733 </p><a class="indexterm" name="idp9901216"></a><p>
8734 Some people view the public domain with contempt. In their brief
8735
8736
8737 before the Supreme Court, the Nashville Songwriters Association
8738 wrote that the public domain is nothing more than <span class="quote">«<span class="quote">legal piracy.</span>»</span><a href="#ftn.idp9904112" class="footnote" name="idp9904112"><sup class="footnote">[187]</sup></a>
8739 But it is not piracy when the law allows it; and in our constitutional
8740 system, our law requires it. Some may not like the Constitution's
8741 requirements, but that doesn't make the Constitution a pirate's
8742 charter.
8743 </p><p>
8744 As we've seen, our constitutional system requires limits on
8745                 copyright
8746 as a way to assure that copyright holders do not too heavily
8747                 influence
8748 the development and distribution of our culture. Yet, as Eric
8749 Eldred discovered, we have set up a system that assures that copyright
8750 terms will be repeatedly extended, and extended, and extended. We
8751 have created the perfect storm for the public domain. Copyrights have
8752 not expired, and will not expire, so long as Congress is free to be
8753 bought to extend them again.
8754 </p><p>
8755 <span class="strong"><strong>It is valuable</strong></span> copyrights that are
8756 responsible for terms being extended.  Mickey Mouse and
8757 <span class="quote">«<span class="quote">Rhapsody in Blue.</span>»</span> These works are too valuable for
8758 copyright owners to ignore. But the real harm to our society from
8759 copyright extensions is not that Mickey Mouse remains Disney's.
8760 Forget Mickey Mouse. Forget Robert Frost. Forget all the works from
8761 the 1920s and 1930s that have continuing commercial value. The real
8762 harm of term extension comes not from these famous works. The real
8763 harm is to the works that are not famous, not commercially exploited,
8764 and no longer available as a result.
8765 </p><p>
8766 If you look at the work created in the first twenty years (1923 to
8767 1942) affected by the Sonny Bono Copyright Term Extension Act,
8768 2 percent of that work has any continuing commercial value. It was the
8769 copyright holders for that 2 percent who pushed the CTEA through.
8770 But the law and its effect were not limited to that 2 percent. The law
8771 extended the terms of copyright generally.<a href="#ftn.idp9911168" class="footnote" name="idp9911168"><sup class="footnote">[188]</sup></a>
8772
8773 </p><p>
8774 Think practically about the consequence of this
8775                 extension&#8212;practically,
8776 as a businessperson, and not as a lawyer eager for more legal
8777
8778
8779 work. In 1930, 10,047 books were published. In 2000, 174 of those
8780 books were still in print. Let's say you were Brewster Kahle, and you
8781 wanted to make available to the world in your iArchive project the
8782                 remaining
8783 9,873. What would you have to do?
8784 </p><a class="indexterm" name="idp9915136"></a><p>
8785 Well, first, you'd have to determine which of the 9,873 books were
8786 still under copyright. That requires going to a library (these data are
8787 not on-line) and paging through tomes of books, cross-checking the
8788 titles and authors of the 9,873 books with the copyright registration
8789 and renewal records for works published in 1930. That will produce a
8790 list of books still under copyright.
8791 </p><p>
8792 Then for the books still under copyright, you would need to locate
8793 the current copyright owners. How would you do that?
8794 </p><p>
8795 Most people think that there must be a list of these copyright
8796                 owners
8797 somewhere. Practical people think this way. How could there be
8798 thousands and thousands of government monopolies without there
8799 being at least a list?
8800 </p><p>
8801 But there is no list. There may be a name from 1930, and then in
8802 1959, of the person who registered the copyright. But just think
8803                 practically
8804 about how impossibly difficult it would be to track down
8805                 thousands
8806 of such records&#8212;especially since the person who registered is
8807 not necessarily the current owner. And we're just talking about 1930!
8808 </p><p>
8809 <span class="quote">«<span class="quote">But there isn't a list of who owns property generally,</span>»</span> the
8810 apologists for the system respond. <span class="quote">«<span class="quote">Why should there be a list of
8811 copyright owners?</span>»</span>
8812 </p><p>
8813 Well, actually, if you think about it, there <span class="emphasis"><em>are</em></span>
8814 plenty of lists of who owns what property. Think about deeds on
8815 houses, or titles to cars.  And where there isn't a list, the code of
8816 real space is pretty good at suggesting who the owner of a bit of
8817 property is. (A swing set in your backyard is probably yours.) So
8818 formally or informally, we have a pretty good way to know who owns
8819 what tangible property.
8820 </p><p>
8821 So: You walk down a street and see a house. You can know who
8822 owns the house by looking it up in the courthouse registry. If you see
8823 a car, there is ordinarily a license plate that will link the owner to the
8824
8825
8826 car. If you see a bunch of children's toys sitting on the front lawn of a
8827 house, it's fairly easy to determine who owns the toys. And if you
8828                 happen
8829 to see a baseball lying in a gutter on the side of the road, look
8830 around for a second for some kids playing ball. If you don't see any
8831 kids, then okay: Here's a bit of property whose owner we can't easily
8832 determine. It is the exception that proves the rule: that we ordinarily
8833 know quite well who owns what property.
8834 </p><p>
8835 Compare this story to intangible property. You go into a library.
8836 The library owns the books. But who owns the copyrights? As I've
8837                 already
8838 described, there's no list of copyright owners. There are authors'
8839 names, of course, but their copyrights could have been assigned, or
8840 passed down in an estate like Grandma's old jewelry. To know who
8841 owns what, you would have to hire a private detective. The bottom
8842 line: The owner cannot easily be located. And in a regime like ours, in
8843 which it is a felony to use such property without the property owner's
8844 permission, the property isn't going to be used.
8845 </p><p>
8846 The consequence with respect to old books is that they won't be
8847 digitized, and hence will simply rot away on shelves. But the
8848                 consequence
8849 for other creative works is much more dire.
8850 </p><a class="indexterm" name="idxageemichael"></a><a class="indexterm" name="idp9925664"></a><a class="indexterm" name="idp9926480"></a><a class="indexterm" name="idp9927296"></a><p>
8851 Consider the story of Michael Agee, chairman of Hal Roach Studios,
8852 which owns the copyrights for the Laurel and Hardy films. Agee is a
8853 direct beneficiary of the Bono Act. The Laurel and Hardy films were
8854 made between 1921 and 1951. Only one of these films, <em class="citetitle">The Lucky Dog</em>, is
8855 currently out of copyright. But for the CTEA, films made after 1923
8856 would have begun entering the public domain. Because Agee controls the
8857 exclusive rights for these popular films, he makes a great deal of
8858 money. According to one estimate, <span class="quote">«<span class="quote">Roach has sold about 60,000
8859 videocassettes and 50,000 DVDs of the duo's silent
8860 films.</span>»</span><a href="#ftn.idp9929664" class="footnote" name="idp9929664"><sup class="footnote">[189]</sup></a>
8861 </p><p>
8862 Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in
8863 this culture: selflessness. He argued in a brief before the Supreme
8864 Court that the Sonny Bono Copyright Term Extension Act will, if left
8865 standing, destroy a whole generation of American film.
8866 </p><p>
8867 His argument is straightforward. A tiny fraction of this work has
8868
8869
8870 any continuing commercial value. The rest&#8212;to the extent it
8871 survives at all&#8212;sits in vaults gathering dust. It may be that
8872 some of this work not now commercially valuable will be deemed to be
8873 valuable by the owners of the vaults. For this to occur, however, the
8874 commercial benefit from the work must exceed the costs of making the
8875 work available for distribution.
8876 </p><p>
8877 We can't know the benefits, but we do know a lot about the costs.
8878 For most of the history of film, the costs of restoring film were very
8879 high; digital technology has lowered these costs substantially. While
8880 it cost more than $10,000 to restore a ninety-minute black-and-white
8881 film in 1993, it can now cost as little as $100 to digitize one hour of
8882 8 mm film.<a href="#ftn.idp9934976" class="footnote" name="idp9934976"><sup class="footnote">[190]</sup></a>
8883
8884 </p><p>
8885 Restoration technology is not the only cost, nor the most
8886                 important.
8887 Lawyers, too, are a cost, and increasingly, a very important one. In
8888 addition to preserving the film, a distributor needs to secure the rights.
8889 And to secure the rights for a film that is under copyright, you need to
8890 locate the copyright owner.
8891 </p><p>
8892 Or more accurately, <span class="emphasis"><em>owners</em></span>. As we've seen, there
8893 isn't only a single copyright associated with a film; there are
8894 many. There isn't a single person whom you can contact about those
8895 copyrights; there are as many as can hold the rights, which turns out
8896 to be an extremely large number. Thus the costs of clearing the rights
8897 to these films is exceptionally high.
8898 </p><p>
8899 <span class="quote">«<span class="quote">But can't you just restore the film, distribute it, and then pay the
8900 copyright owner when she shows up?</span>»</span> Sure, if you want to commit a
8901 felony. And even if you're not worried about committing a felony, when
8902 she does show up, she'll have the right to sue you for all the profits you
8903 have made. So, if you're successful, you can be fairly confident you'll be
8904 getting a call from someone's lawyer. And if you're not successful, you
8905 won't make enough to cover the costs of your own lawyer. Either way,
8906 you have to talk to a lawyer. And as is too often the case, saying you have
8907 to talk to a lawyer is the same as saying you won't make any money.
8908 </p><p>
8909 For some films, the benefit of releasing the film may well exceed
8910
8911
8912 these costs. But for the vast majority of them, there is no way the
8913                 benefit
8914 would outweigh the legal costs. Thus, for the vast majority of old
8915 films, Agee argued, the film will not be restored and distributed until
8916 the copyright expires.
8917 </p><a class="indexterm" name="idp9943008"></a><p>
8918 But by the time the copyright for these films expires, the film will
8919 have expired. These films were produced on nitrate-based stock, and
8920 nitrate stock dissolves over time. They will be gone, and the metal
8921                 canisters
8922 in which they are now stored will be filled with nothing more
8923 than dust.
8924 </p><p>
8925 <span class="strong"><strong>Of all the</strong></span> creative work produced
8926 by humans anywhere, a tiny fraction has continuing commercial
8927 value. For that tiny fraction, the copyright is a crucially important
8928 legal device. For that tiny fraction, the copyright creates incentives
8929 to produce and distribute the creative work. For that tiny fraction,
8930 the copyright acts as an <span class="quote">«<span class="quote">engine of free expression.</span>»</span>
8931 </p><p>
8932 But even for that tiny fraction, the actual time during which the
8933 creative work has a commercial life is extremely short. As I've
8934                 indicated,
8935 most books go out of print within one year. The same is true of
8936 music and film. Commercial culture is sharklike. It must keep moving.
8937 And when a creative work falls out of favor with the commercial
8938                 distributors,
8939 the commercial life ends.
8940 </p><p>
8941 Yet that doesn't mean the life of the creative work ends. We don't
8942 keep libraries of books in order to compete with Barnes &amp; Noble, and
8943 we don't have archives of films because we expect people to choose
8944                 between
8945 spending Friday night watching new movies and spending
8946                 Friday
8947 night watching a 1930 news documentary. The noncommercial life
8948 of culture is important and valuable&#8212;for entertainment but also, and
8949 more importantly, for knowledge. To understand who we are, and
8950 where we came from, and how we have made the mistakes that we
8951 have, we need to have access to this history.
8952 </p><p>
8953 Copyrights in this context do not drive an engine of free expression.
8954
8955
8956 In this context, there is no need for an exclusive right. Copyrights in
8957 this context do no good.
8958 </p><p>
8959 Yet, for most of our history, they also did little harm. For most of
8960 our history, when a work ended its commercial life, there was no
8961 <span class="emphasis"><em>copyright-related use</em></span> that would be inhibited by
8962 an exclusive right.  When a book went out of print, you could not buy
8963 it from a publisher.  But you could still buy it from a used book
8964 store, and when a used book store sells it, in America, at least,
8965 there is no need to pay the copyright owner anything. Thus, the
8966 ordinary use of a book after its commercial life ended was a use that
8967 was independent of copyright law.
8968 </p><p>
8969 The same was effectively true of film. Because the costs of restoring
8970 a film&#8212;the real economic costs, not the lawyer costs&#8212;were
8971 so high, it was never at all feasible to preserve or restore
8972 film. Like the remains of a great dinner, when it's over, it's
8973 over. Once a film passed out of its commercial life, it may have been
8974 archived for a bit, but that was the end of its life so long as the
8975 market didn't have more to offer.
8976 </p><p>
8977 In other words, though copyright has been relatively short for most
8978 of our history, long copyrights wouldn't have mattered for the works
8979 that lost their commercial value. Long copyrights for these works
8980 would not have interfered with anything.
8981 </p><p>
8982 But this situation has now changed.
8983 </p><a class="indexterm" name="idxarchivesdigital2"></a><p>
8984 One crucially important consequence of the emergence of digital
8985 technologies is to enable the archive that Brewster Kahle dreams of.
8986 Digital technologies now make it possible to preserve and give access
8987 to all sorts of knowledge. Once a book goes out of print, we can now
8988 imagine digitizing it and making it available to everyone,
8989 forever. Once a film goes out of distribution, we could digitize it
8990 and make it available to everyone, forever. Digital technologies give
8991 new life to copyrighted material after it passes out of its commercial
8992 life. It is now possible to preserve and assure universal access to
8993 this knowledge and culture, whereas before it was not.
8994 </p><p>
8995
8996 And now copyright law does get in the way. Every step of producing
8997 this digital archive of our culture infringes on the exclusive right
8998 of copyright. To digitize a book is to copy it. To do that requires
8999 permission of the copyright owner. The same with music, film, or any
9000 other aspect of our culture protected by copyright. The effort to make
9001 these things available to history, or to researchers, or to those who
9002 just want to explore, is now inhibited by a set of rules that were
9003 written for a radically different context.
9004 </p><p>
9005 Here is the core of the harm that comes from extending terms: Now that
9006 technology enables us to rebuild the library of Alexandria, the law
9007 gets in the way. And it doesn't get in the way for any useful
9008 <span class="emphasis"><em>copyright</em></span> purpose, for the purpose of copyright
9009 is to enable the commercial market that spreads culture. No, we are
9010 talking about culture after it has lived its commercial life. In this
9011 context, copyright is serving no purpose <span class="emphasis"><em>at all</em></span>
9012 related to the spread of knowledge. In this context, copyright is not
9013 an engine of free expression. Copyright is a brake.
9014 </p><p>
9015 You may well ask, <span class="quote">«<span class="quote">But if digital technologies lower the costs for
9016 Brewster Kahle, then they will lower the costs for Random House, too.
9017 So won't Random House do as well as Brewster Kahle in spreading
9018 culture widely?</span>»</span>
9019 </p><p>
9020 Maybe. Someday. But there is absolutely no evidence to suggest that
9021 publishers would be as complete as libraries. If Barnes &amp; Noble
9022 offered to lend books from its stores for a low price, would that
9023 eliminate the need for libraries? Only if you think that the only role
9024 of a library is to serve what <span class="quote">«<span class="quote">the market</span>»</span> would demand. But if you
9025 think the role of a library is bigger than this&#8212;if you think its
9026 role is to archive culture, whether there's a demand for any
9027 particular bit of that culture or not&#8212;then we can't count on the
9028 commercial market to do our library work for us.
9029 </p><a class="indexterm" name="idp9961408"></a><p>
9030 I would be the first to agree that it should do as much as it can: We
9031 should rely upon the market as much as possible to spread and enable
9032 culture. My message is absolutely not antimarket. But where we see the
9033 market is not doing the job, then we should allow nonmarket forces the
9034
9035
9036 freedom to fill the gaps. As one researcher calculated for American
9037 culture, 94 percent of the films, books, and music produced between
9038 1923 and 1946 is not commercially available. However much you love the
9039 commercial market, if access is a value, then 6 percent is a failure
9040 to provide that value.<a href="#ftn.idp9963824" class="footnote" name="idp9963824"><sup class="footnote">[191]</sup></a>
9041
9042 </p><p>
9043 <span class="strong"><strong>In January 1999</strong></span>, we filed a lawsuit
9044 on Eric Eldred's behalf in federal district court in Washington, D.C.,
9045 asking the court to declare the Sonny Bono Copyright Term Extension
9046 Act unconstitutional. The two central claims that we made were (1)
9047 that extending existing terms violated the Constitution's
9048 <span class="quote">«<span class="quote">limited Times</span>»</span> requirement, and (2) that extending terms
9049 by another twenty years violated the First Amendment.
9050 </p><p>
9051 The district court dismissed our claims without even hearing an
9052 argument.  A panel of the Court of Appeals for the D.C. Circuit also
9053 dismissed our claims, though after hearing an extensive argument. But
9054 that decision at least had a dissent, by one of the most conservative
9055 judges on that court. That dissent gave our claims life.
9056 </p><p>
9057 Judge David Sentelle said the CTEA violated the requirement that
9058 copyrights be for <span class="quote">«<span class="quote">limited Times</span>»</span> only. His argument was as elegant as
9059 it was simple: If Congress can extend existing terms, then there is no
9060 <span class="quote">«<span class="quote">stopping point</span>»</span> to Congress's power under the Copyright Clause. The
9061 power to extend existing terms means Congress is not required to grant
9062 terms that are <span class="quote">«<span class="quote">limited.</span>»</span> Thus, Judge Sentelle argued, the court had
9063 to interpret the term <span class="quote">«<span class="quote">limited Times</span>»</span> to give it meaning. And the best
9064 interpretation, Judge Sentelle argued, would be to deny Congress the
9065 power to extend existing terms.
9066 </p><p>
9067 We asked the Court of Appeals for the D.C. Circuit as a whole to
9068 hear the case. Cases are ordinarily heard in panels of three, except for
9069 important cases or cases that raise issues specific to the circuit as a
9070 whole, where the court will sit <span class="quote">«<span class="quote">en banc</span>»</span> to hear the case.
9071 </p><a class="indexterm" name="idp9972272"></a><p>
9072 The Court of Appeals rejected our request to hear the case en banc.
9073 This time, Judge Sentelle was joined by the most liberal member of the
9074
9075
9076 D.C. Circuit, Judge David Tatel. Both the most conservative and the
9077 most liberal judges in the D.C. Circuit believed Congress had
9078 overstepped its bounds.
9079 </p><p>
9080 It was here that most expected Eldred v. Ashcroft would die, for the
9081 Supreme Court rarely reviews any decision by a court of appeals. (It
9082 hears about one hundred cases a year, out of more than five thousand
9083 appeals.) And it practically never reviews a decision that upholds a
9084 statute when no other court has yet reviewed the statute.
9085 </p><p>
9086 But in February 2002, the Supreme Court surprised the world by
9087 granting our petition to review the D.C. Circuit opinion. Argument
9088 was set for October of 2002. The summer would be spent writing
9089 briefs and preparing for argument.
9090 </p><p>
9091 <span class="strong"><strong>It is over</strong></span> a year later as I write
9092 these words. It is still astonishingly hard. If you know anything at
9093 all about this story, you know that we lost the appeal. And if you
9094 know something more than just the minimum, you probably think there
9095 was no way this case could have been won. After our defeat, I received
9096 literally thousands of missives by well-wishers and supporters,
9097 thanking me for my work on behalf of this noble but doomed cause. And
9098 none from this pile was more significant to me than the e-mail from my
9099 client, Eric Eldred.
9100 </p><p>
9101 But my client and these friends were wrong. This case could have
9102 been won. It should have been won. And no matter how hard I try to
9103 retell this story to myself, I can never escape believing that my own
9104 mistake lost it.
9105 </p><a class="indexterm" name="idp9977696"></a><p>
9106 <span class="strong"><strong>The mistake</strong></span> was made early, though
9107 it became obvious only at the very end. Our case had been supported
9108 from the very beginning by an extraordinary lawyer, Geoffrey Stewart,
9109 and by the law firm he had moved to, Jones, Day, Reavis and
9110 Pogue. Jones Day took a great deal of heat
9111
9112 from its copyright-protectionist clients for supporting us. They
9113 ignored this pressure (something that few law firms today would ever
9114 do), and throughout the case, they gave it everything they could.
9115 </p><a class="indexterm" name="idp9980416"></a><a class="indexterm" name="idp9981200"></a><a class="indexterm" name="idp9982016"></a><p>
9116 There were three key lawyers on the case from Jones Day. Geoff
9117 Stewart was the first, but then Dan Bromberg and Don Ayer became
9118 quite involved. Bromberg and Ayer in particular had a common view
9119 about how this case would be won: We would only win, they repeatedly
9120 told me, if we could make the issue seem <span class="quote">«<span class="quote">important</span>»</span> to the Supreme
9121 Court. It had to seem as if dramatic harm were being done to free
9122 speech and free culture; otherwise, they would never vote against <span class="quote">«<span class="quote">the
9123 most powerful media companies in the world.</span>»</span>
9124 </p><p>
9125 I hate this view of the law. Of course I thought the Sonny Bono Act
9126 was a dramatic harm to free speech and free culture. Of course I still
9127 think it is. But the idea that the Supreme Court decides the law based
9128 on how important they believe the issues are is just wrong. It might be
9129 <span class="quote">«<span class="quote">right</span>»</span> as in <span class="quote">«<span class="quote">true,</span>»</span> I thought, but it is <span class="quote">«<span class="quote">wrong</span>»</span> as in <span class="quote">«<span class="quote">it just shouldn't be
9130 that way.</span>»</span> As I believed that any faithful interpretation of what the
9131 framers of our Constitution did would yield the conclusion that the
9132 CTEA was unconstitutional, and as I believed that any faithful
9133                 interpretation
9134 of what the First Amendment means would yield the
9135 conclusion that the power to extend existing copyright terms is
9136                 unconstitutional,
9137 I was not persuaded that we had to sell our case like soap.
9138 Just as a law that bans the swastika is unconstitutional not because the
9139 Court likes Nazis but because such a law would violate the
9140                 Constitution,
9141 so too, in my view, would the Court decide whether Congress's
9142 law was constitutional based on the Constitution, not based on whether
9143 they liked the values that the framers put in the Constitution.
9144 </p><p>
9145 In any case, I thought, the Court must already see the danger and
9146 the harm caused by this sort of law. Why else would they grant review?
9147 There was no reason to hear the case in the Supreme Court if they
9148 weren't convinced that this regulation was harmful. So in my view, we
9149 didn't need to persuade them that this law was bad, we needed to show
9150 why it was unconstitutional.
9151 </p><p>
9152 There was one way, however, in which I felt politics would matter
9153
9154
9155 and in which I thought a response was appropriate. I was convinced
9156 that the Court would not hear our arguments if it thought these were
9157 just the arguments of a group of lefty loons. This Supreme Court was
9158 not about to launch into a new field of judicial review if it seemed
9159 that this field of review was simply the preference of a small
9160 political minority.  Although my focus in the case was not to
9161 demonstrate how bad the Sonny Bono Act was but to demonstrate that it
9162 was unconstitutional, my hope was to make this argument against a
9163 background of briefs that covered the full range of political
9164 views. To show that this claim against the CTEA was grounded in
9165 <span class="emphasis"><em>law</em></span> and not politics, then, we tried to gather
9166 the widest range of credible critics&#8212;credible not because they
9167 were rich and famous, but because they, in the aggregate, demonstrated
9168 that this law was unconstitutional regardless of one's politics.
9169 </p><a class="indexterm" name="idp9990752"></a><a class="indexterm" name="idp9991536"></a><p>
9170 The first step happened all by itself. Phyllis Schlafly's
9171 organization, Eagle Forum, had been an opponent of the CTEA from the
9172 very beginning.  Mrs. Schlafly viewed the CTEA as a sellout by
9173 Congress. In November 1998, she wrote a stinging editorial attacking
9174 the Republican Congress for allowing the law to pass. As she wrote,
9175 <span class="quote">«<span class="quote">Do you sometimes wonder why bills that create a financial windfall to
9176 narrow special interests slide easily through the intricate
9177 legislative process, while bills that benefit the general public seem
9178 to get bogged down?</span>»</span>  The answer, as the editorial documented, was the
9179 power of money.  Schlafly enumerated Disney's contributions to the key
9180 players on the committees. It was money, not justice, that gave Mickey
9181 Mouse twenty more years in Disney's control, Schlafly argued.
9182 </p><p>
9183 In the Court of Appeals, Eagle Forum was eager to file a brief
9184 supporting our position. Their brief made the argument that became the
9185 core claim in the Supreme Court: If Congress can extend the term of
9186 existing copyrights, there is no limit to Congress's power to set
9187 terms.  That strong conservative argument persuaded a strong
9188 conservative judge, Judge Sentelle.
9189 </p><a class="indexterm" name="idp9994752"></a><a class="indexterm" name="idp9995584"></a><a class="indexterm" name="idp9996400"></a><a class="indexterm" name="idp9997216"></a><p>
9190 In the Supreme Court, the briefs on our side were about as diverse as
9191 it gets. They included an extraordinary historical brief by the Free
9192
9193
9194 Software Foundation (home of the GNU project that made GNU/Linux
9195 possible). They included a powerful brief about the costs of
9196 uncertainty by Intel. There were two law professors' briefs, one by
9197 copyright scholars and one by First Amendment scholars. There was an
9198 exhaustive and uncontroverted brief by the world's experts in the
9199 history of the Progress Clause. And of course, there was a new brief
9200 by Eagle Forum, repeating and strengthening its arguments.
9201 </p><a class="indexterm" name="idp9999376"></a><a class="indexterm" name="idp10000176"></a><p>
9202 Those briefs framed a legal argument. Then to support the legal
9203 argument, there were a number of powerful briefs by libraries and
9204 archives, including the Internet Archive, the American Association of
9205 Law Libraries, and the National Writers Union.
9206 </p><a class="indexterm" name="idp10001648"></a><p>
9207 But two briefs captured the policy argument best. One made the
9208 argument I've already described: A brief by Hal Roach Studios argued
9209 that unless the law was struck, a whole generation of American film
9210 would disappear. The other made the economic argument absolutely
9211 clear.
9212 </p><a class="indexterm" name="idp10003136"></a><a class="indexterm" name="idp10003952"></a><a class="indexterm" name="idp10004768"></a><a class="indexterm" name="idp10005584"></a><a class="indexterm" name="idp10006400"></a><p>
9213 This economists' brief was signed by seventeen economists, including
9214 five Nobel Prize winners, including Ronald Coase, James Buchanan,
9215 Milton Friedman, Kenneth Arrow, and George Akerlof. The economists, as
9216 the list of Nobel winners demonstrates, spanned the political
9217 spectrum. Their conclusions were powerful: There was no plausible
9218 claim that extending the terms of existing copyrights would do
9219 anything to increase incentives to create. Such extensions were
9220 nothing more than <span class="quote">«<span class="quote">rent-seeking</span>»</span>&#8212;the fancy term economists use
9221 to describe special-interest legislation gone wild.
9222 </p><a class="indexterm" name="idp10008544"></a><a class="indexterm" name="idp10009328"></a><a class="indexterm" name="idp10010144"></a><a class="indexterm" name="idp10010960"></a><p>
9223 The same effort at balance was reflected in the legal team we gathered
9224 to write our briefs in the case. The Jones Day lawyers had been with
9225 us from the start. But when the case got to the Supreme Court, we
9226 added three lawyers to help us frame this argument to this Court: Alan
9227 Morrison, a lawyer from Public Citizen, a Washington group that had
9228 made constitutional history with a series of seminal victories in the
9229 Supreme Court defending individual rights; my colleague and dean,
9230 Kathleen Sullivan, who had argued many cases in the Court, and
9231
9232
9233 who had advised us early on about a First Amendment strategy; and
9234 finally, former solicitor general Charles Fried.
9235 </p><a class="indexterm" name="idp10013168"></a><a class="indexterm" name="idp10013952"></a><a class="indexterm" name="idp10015072"></a><p>
9236 Fried was a special victory for our side. Every other former solicitor
9237 general was hired by the other side to defend Congress's power to give
9238 media companies the special favor of extended copyright terms. Fried
9239 was the only one who turned down that lucrative assignment to stand up
9240 for something he believed in. He had been Ronald Reagan's chief lawyer
9241 in the Supreme Court. He had helped craft the line of cases that
9242 limited Congress's power in the context of the Commerce Clause. And
9243 while he had argued many positions in the Supreme Court that I
9244 personally disagreed with, his joining the cause was a vote of
9245 confidence in our argument.
9246 </p><p>
9247 The government, in defending the statute, had its collection of
9248 friends, as well. Significantly, however, none of these <span class="quote">«<span class="quote">friends</span>»</span> included
9249 historians or economists. The briefs on the other side of the case were
9250 written exclusively by major media companies, congressmen, and
9251 copyright holders.
9252 </p><p>
9253 The media companies were not surprising. They had the most to gain
9254 from the law. The congressmen were not surprising either&#8212;they
9255 were defending their power and, indirectly, the gravy train of
9256 contributions such power induced. And of course it was not surprising
9257 that the copyright holders would defend the idea that they should
9258 continue to have the right to control who did what with content they
9259 wanted to control.
9260 </p><a class="indexterm" name="idp10018592"></a><a class="indexterm" name="idp10019984"></a><a class="indexterm" name="idp10020800"></a><p>
9261 Dr. Seuss's representatives, for example, argued that it was
9262 better for the Dr. Seuss estate to control what happened to
9263 Dr. Seuss's work&#8212; better than allowing it to fall into the
9264 public domain&#8212;because if this creativity were in the public
9265 domain, then people could use it to <span class="quote">«<span class="quote">glorify drugs or to create
9266 pornography.</span>»</span><a href="#ftn.idp10022544" class="footnote" name="idp10022544"><sup class="footnote">[192]</sup></a>
9267 That was also the motive of the Gershwin estate, which defended its
9268 <span class="quote">«<span class="quote">protection</span>»</span> of the work of George Gershwin. They refuse, for example,
9269 to license <em class="citetitle">Porgy and Bess</em> to anyone who refuses to use African
9270 Americans in the cast.<a href="#ftn.idp10025360" class="footnote" name="idp10025360"><sup class="footnote">[193]</sup></a>
9271 That's
9272
9273 their view of how this part of American culture should be controlled,
9274 and they wanted this law to help them effect that control.
9275 </p><p>
9276 This argument made clear a theme that is rarely noticed in this
9277 debate.  When Congress decides to extend the term of existing
9278 copyrights, Congress is making a choice about which speakers it will
9279 favor.  Famous and beloved copyright owners, such as the Gershwin
9280 estate and Dr. Seuss, come to Congress and say, <span class="quote">«<span class="quote">Give us twenty years
9281 to control the speech about these icons of American culture. We'll do
9282 better with them than anyone else.</span>»</span> Congress of course likes to reward
9283 the popular and famous by giving them what they want. But when
9284 Congress gives people an exclusive right to speak in a certain way,
9285 that's just what the First Amendment is traditionally meant to block.
9286 </p><p>
9287 We argued as much in a final brief. Not only would upholding the CTEA
9288 mean that there was no limit to the power of Congress to extend
9289 copyrights&#8212;extensions that would further concentrate the market;
9290 it would also mean that there was no limit to Congress's power to play
9291 favorites, through copyright, with who has the right to speak.
9292 </p><p>
9293 <span class="strong"><strong>Between February</strong></span> and October, there
9294 was little I did beyond preparing for this case. Early on, as I said,
9295 I set the strategy.
9296 </p><a class="indexterm" name="idp10031152"></a><a class="indexterm" name="idp10031968"></a><p>
9297 The Supreme Court was divided into two important camps. One camp we
9298 called <span class="quote">«<span class="quote">the Conservatives.</span>»</span> The other we called <span class="quote">«<span class="quote">the Rest.</span>»</span>  The
9299 Conservatives included Chief Justice Rehnquist, Justice O'Connor,
9300 Justice Scalia, Justice Kennedy, and Justice Thomas. These five had
9301 been the most consistent in limiting Congress's power. They were the
9302 five who had supported the <em class="citetitle">Lopez/Morrison</em> line
9303 of cases that said that an enumerated power had to be interpreted to
9304 assure that Congress's powers had limits.
9305 </p><a class="indexterm" name="idp10034928"></a><a class="indexterm" name="idxginsburg"></a><p>
9306 The Rest were the four Justices who had strongly opposed limits on
9307 Congress's power. These four&#8212;Justice Stevens, Justice Souter,
9308 Justice Ginsburg, and Justice Breyer&#8212;had repeatedly argued that
9309 the Constitution
9310
9311 gives Congress broad discretion to decide how best to implement its
9312 powers. In case after case, these justices had argued that the Court's
9313 role should be one of deference. Though the votes of these four
9314 justices were the votes that I personally had most consistently agreed
9315 with, they were also the votes that we were least likely to get.
9316 </p><p>
9317 In particular, the least likely was Justice Ginsburg's. In addition to
9318 her general view about deference to Congress (except where issues of
9319 gender are involved), she had been particularly deferential in the
9320 context of intellectual property protections. She and her daughter (an
9321 excellent and well-known intellectual property scholar) were cut from
9322 the same intellectual property cloth. We expected she would agree with
9323 the writings of her daughter: that Congress had the power in this
9324 context to do as it wished, even if what Congress wished made little
9325 sense.
9326 </p><a class="indexterm" name="idp10039616"></a><p>
9327 Close behind Justice Ginsburg were two justices whom we also viewed as
9328 unlikely allies, though possible surprises. Justice Souter strongly
9329 favored deference to Congress, as did Justice Breyer. But both were
9330 also very sensitive to free speech concerns. And as we strongly
9331 believed, there was a very important free speech argument against
9332 these retrospective extensions.
9333 </p><a class="indexterm" name="idp10041056"></a><p>
9334 The only vote we could be confident about was that of Justice
9335 Stevens. History will record Justice Stevens as one of the greatest
9336 judges on this Court. His votes are consistently eclectic, which just
9337 means that no simple ideology explains where he will stand. But he
9338 had consistently argued for limits in the context of intellectual property
9339 generally. We were fairly confident he would recognize limits here.
9340 </p><p>
9341 This analysis of <span class="quote">«<span class="quote">the Rest</span>»</span> showed most clearly where our focus had to
9342 be: on the Conservatives. To win this case, we had to crack open these
9343 five and get at least a majority to go our way. Thus, the single
9344 overriding argument that animated our claim rested on the
9345 Conservatives' most important jurisprudential innovation&#8212;the
9346 argument that Judge Sentelle had relied upon in the Court of Appeals,
9347 that Congress's power must be interpreted so that its enumerated
9348 powers have limits.
9349 </p><p>
9350 This then was the core of our strategy&#8212;a strategy for which I am
9351 responsible. We would get the Court to see that just as with the
9352 <em class="citetitle">Lopez</em>
9353
9354 case, under the government's argument here, Congress would always have
9355 unlimited power to extend existing terms. If anything was plain about
9356 Congress's power under the Progress Clause, it was that this power was
9357 supposed to be <span class="quote">«<span class="quote">limited.</span>»</span> Our aim would be to get the Court to
9358 reconcile <em class="citetitle">Eldred</em> with
9359 <em class="citetitle">Lopez</em>: If Congress's power to regulate commerce
9360 was limited, then so, too, must Congress's power to regulate copyright
9361 be limited.
9362 </p><p>
9363 <span class="strong"><strong>The argument</strong></span> on the government's
9364 side came down to this: Congress has done it before. It should be
9365 allowed to do it again. The government claimed that from the very
9366 beginning, Congress has been extending the term of existing
9367 copyrights. So, the government argued, the Court should not now say
9368 that practice is unconstitutional.
9369 </p><p>
9370 There was some truth to the government's claim, but not much. We
9371 certainly agreed that Congress had extended existing terms in 1831
9372 and in 1909. And of course, in 1962, Congress began extending
9373                 existing
9374 terms regularly&#8212;eleven times in forty years.
9375 </p><p>
9376 But this <span class="quote">«<span class="quote">consistency</span>»</span> should be kept in perspective. Congress
9377                 extended
9378 existing terms once in the first hundred years of the Republic.
9379 It then extended existing terms once again in the next fifty. Those rare
9380 extensions are in contrast to the now regular practice of extending
9381                 existing
9382 terms. Whatever restraint Congress had had in the past, that
9383                 restraint
9384 was now gone. Congress was now in a cycle of extensions; there
9385 was no reason to expect that cycle would end. This Court had not
9386                 hesitated
9387 to intervene where Congress was in a similar cycle of extension.
9388 There was no reason it couldn't intervene here.
9389 </p><p>
9390 <span class="strong"><strong>Oral argument</strong></span> was scheduled for the
9391 first week in October. I arrived in D.C. two weeks before the
9392 argument. During those two weeks, I was repeatedly
9393 <span class="quote">«<span class="quote">mooted</span>»</span> by lawyers who had volunteered to
9394
9395
9396 help in the case. Such <span class="quote">«<span class="quote">moots</span>»</span> are basically practice rounds, where
9397 wannabe justices fire questions at wannabe winners.
9398 </p><p>
9399 I was convinced that to win, I had to keep the Court focused on a
9400 single point: that if this extension is permitted, then there is no limit to
9401 the power to set terms. Going with the government would mean that
9402 terms would be effectively unlimited; going with us would give
9403                 Congress
9404 a clear line to follow: Don't extend existing terms. The moots
9405 were an effective practice; I found ways to take every question back to
9406 this central idea.
9407 </p><a class="indexterm" name="idp10054848"></a><a class="indexterm" name="idp10055664"></a><a class="indexterm" name="idp10056480"></a><p>
9408 One moot was before the lawyers at Jones Day. Don Ayer was the
9409 skeptic. He had served in the Reagan Justice Department with Solicitor
9410 General Charles Fried. He had argued many cases before the Supreme
9411 Court. And in his review of the moot, he let his concern speak:
9412 </p><p>
9413 <span class="quote">«<span class="quote">I'm just afraid that unless they really see the harm, they won't be
9414 willing to upset this practice that the government says has been a
9415 consistent practice for two hundred years. You have to make them see
9416 the harm&#8212;passionately get them to see the harm. For if they
9417 don't see that, then we haven't any chance of winning.</span>»</span>
9418 </p><a class="indexterm" name="idp10059200"></a><p>
9419 He may have argued many cases before this Court, I thought, but
9420 he didn't understand its soul. As a clerk, I had seen the Justices do the
9421 right thing&#8212;not because of politics but because it was right. As a law
9422 professor, I had spent my life teaching my students that this Court
9423 does the right thing&#8212;not because of politics but because it is right. As
9424 I listened to Ayer's plea for passion in pressing politics, I understood
9425 his point, and I rejected it. Our argument was right. That was enough.
9426 Let the politicians learn to see that it was also good.
9427 </p><p>
9428 <span class="strong"><strong>The night before</strong></span> the argument, a
9429 line of people began to form in front of the Supreme Court. The case
9430 had become a focus of the press and of the movement to free
9431 culture. Hundreds stood in line
9432
9433
9434 for the chance to see the proceedings. Scores spent the night on the
9435 Supreme Court steps so that they would be assured a seat.
9436 </p><p>
9437 Not everyone has to wait in line. People who know the Justices can
9438 ask for seats they control. (I asked Justice Scalia's chambers for seats for
9439 my parents, for example.) Members of the Supreme Court bar can get
9440 a seat in a special section reserved for them. And senators and
9441                 congressmen
9442 have a special place where they get to sit, too. And finally, of
9443 course, the press has a gallery, as do clerks working for the Justices on
9444 the Court. As we entered that morning, there was no place that was
9445 not taken. This was an argument about intellectual property law, yet
9446 the halls were filled. As I walked in to take my seat at the front of the
9447 Court, I saw my parents sitting on the left. As I sat down at the table,
9448 I saw Jack Valenti sitting in the special section ordinarily reserved for
9449 family of the Justices.
9450 </p><p>
9451 When the Chief Justice called me to begin my argument, I began
9452 where I intended to stay: on the question of the limits on Congress's
9453 power. This was a case about enumerated powers, I said, and whether
9454 those enumerated powers had any limit.
9455 </p><a class="indexterm" name="idp10064432"></a><p>
9456 Justice O'Connor stopped me within one minute of my opening.
9457 The history was bothering her.
9458 </p><div class="blockquote"><blockquote class="blockquote"><p>
9459 justice o'connor: Congress has extended the term so often
9460 through the years, and if you are right, don't we run the risk of
9461 upsetting previous extensions of time? I mean, this seems to be a
9462 practice that began with the very first act.
9463 </p></blockquote></div><p>
9464 She was quite willing to concede <span class="quote">«<span class="quote">that this flies directly in the face
9465 of what the framers had in mind.</span>»</span> But my response again and again
9466 was to emphasize limits on Congress's power.
9467 </p><div class="blockquote"><blockquote class="blockquote"><p>
9468 mr. lessig: Well, if it flies in the face of what the framers had in
9469 mind, then the question is, is there a way of interpreting their
9470
9471 words that gives effect to what they had in mind, and the answer
9472 is yes.
9473 </p></blockquote></div><p>
9474 There were two points in this argument when I should have seen
9475 where the Court was going. The first was a question by Justice
9476 Kennedy, who observed,
9477 </p><div class="blockquote"><blockquote class="blockquote"><p>
9478 justice kennedy: Well, I suppose implicit in the argument that
9479 the '76 act, too, should have been declared void, and that we
9480 might leave it alone because of the disruption, is that for all these
9481 years the act has impeded progress in science and the useful arts.
9482 I just don't see any empirical evidence for that.
9483 </p></blockquote></div><p>
9484 Here follows my clear mistake. Like a professor correcting a
9485                 student,
9486 I answered,
9487 </p><div class="blockquote"><blockquote class="blockquote"><p>
9488 mr. lessig: Justice, we are not making an empirical claim at all.
9489 Nothing in our Copyright Clause claim hangs upon the empirical
9490 assertion about impeding progress. Our only argument is this is a
9491 structural limit necessary to assure that what would be an effectively
9492 perpetual term not be permitted under the copyright laws.
9493 </p></blockquote></div><a class="indexterm" name="idp10072288"></a><p>
9494 That was a correct answer, but it wasn't the right answer. The right
9495 answer was instead that there was an obvious and profound harm. Any
9496 number of briefs had been written about it. He wanted to hear it. And
9497 here was the place Don Ayer's advice should have mattered. This was a
9498 softball; my answer was a swing and a miss.
9499 </p><p>
9500 The second came from the Chief, for whom the whole case had been
9501 crafted. For the Chief Justice had crafted the <em class="citetitle">Lopez</em> ruling,
9502 and we hoped that he would see this case as its second cousin.
9503 </p><p>
9504 It was clear a second into his question that he wasn't at all
9505 sympathetic.  To him, we were a bunch of anarchists. As he asked:
9506
9507
9508 </p><div class="blockquote"><blockquote class="blockquote"><p>
9509 chief justice: Well, but you want more than that. You want the
9510 right to copy verbatim other people's books, don't you?
9511 </p><p>
9512 mr. lessig: We want the right to copy verbatim works that
9513 should be in the public domain and would be in the public
9514                 domain
9515 but for a statute that cannot be justified under ordinary First
9516 Amendment analysis or under a proper reading of the limits built
9517 into the Copyright Clause.
9518 </p></blockquote></div><a class="indexterm" name="idp10077264"></a><p>
9519 Things went better for us when the government gave its argument;
9520 for now the Court picked up on the core of our claim. As Justice Scalia
9521 asked Solicitor General Olson,
9522 </p><div class="blockquote"><blockquote class="blockquote"><p>
9523 justice scalia: You say that the functional equivalent of an unlimited
9524 time would be a violation [of the Constitution], but that's precisely
9525 the argument that's being made by petitioners here, that a limited
9526 time which is extendable is the functional equivalent of an unlimited
9527 time.
9528 </p></blockquote></div><p>
9529 When Olson was finished, it was my turn to give a closing rebuttal.
9530 Olson's flailing had revived my anger. But my anger still was directed
9531 to the academic, not the practical. The government was arguing as if
9532 this were the first case ever to consider limits on Congress's
9533 Copyright and Patent Clause power. Ever the professor and not the
9534 advocate, I closed by pointing out the long history of the Court
9535 imposing limits on Congress's power in the name of the Copyright and
9536 Patent Clause&#8212; indeed, the very first case striking a law of
9537 Congress as exceeding a specific enumerated power was based upon the
9538 Copyright and Patent Clause. All true. But it wasn't going to move the
9539 Court to my side.
9540 </p><p>
9541 <span class="strong"><strong>As I left</strong></span> the court that day, I
9542 knew there were a hundred points I wished I could remake. There were a
9543 hundred questions I wished I had
9544
9545
9546 answered differently. But one way of thinking about this case left me
9547 optimistic.
9548 </p><p>
9549 The government had been asked over and over again, what is the limit?
9550 Over and over again, it had answered there is no limit. This was
9551 precisely the answer I wanted the Court to hear. For I could not
9552 imagine how the Court could understand that the government believed
9553 Congress's power was unlimited under the terms of the Copyright
9554 Clause, and sustain the government's argument. The solicitor general
9555 had made my argument for me. No matter how often I tried, I could not
9556 understand how the Court could find that Congress's power under the
9557 Commerce Clause was limited, but under the Copyright Clause,
9558 unlimited. In those rare moments when I let myself believe that we may
9559 have prevailed, it was because I felt this Court&#8212;in particular,
9560 the Conservatives&#8212;would feel itself constrained by the rule of
9561 law that it had established elsewhere.
9562 </p><p>
9563 <span class="strong"><strong>The morning</strong></span> of January 15, 2003, I
9564 was five minutes late to the office and missed the 7:00 A.M. call from
9565 the Supreme Court clerk. Listening to the message, I could tell in an
9566 instant that she had bad news to report.The Supreme Court had affirmed
9567 the decision of the Court of Appeals. Seven justices had voted in the
9568 majority. There were two dissents.
9569 </p><p>
9570 A few seconds later, the opinions arrived by e-mail. I took the
9571 phone off the hook, posted an announcement to our blog, and sat
9572 down to see where I had been wrong in my reasoning.
9573 </p><p>
9574 My <span class="emphasis"><em>reasoning</em></span>. Here was a case that pitted all the
9575 money in the world against <span class="emphasis"><em>reasoning</em></span>. And here
9576 was the last naïve law professor, scouring the pages, looking for
9577 reasoning.
9578 </p><p>
9579 I first scoured the opinion, looking for how the Court would
9580 distinguish the principle in this case from the principle in
9581 <em class="citetitle">Lopez</em>. The argument was nowhere to be found. The case was not even
9582 cited. The argument that was the core argument of our case did not
9583 even appear in the Court's opinion.
9584 </p><a class="indexterm" name="idp10088272"></a><p>
9585
9586
9587 Justice Ginsburg simply ignored the enumerated powers argument.
9588 Consistent with her view that Congress's power was not limited
9589 generally, she had found Congress's power not limited here.
9590 </p><p>
9591 Her opinion was perfectly reasonable&#8212;for her, and for Justice
9592 Souter. Neither believes in <em class="citetitle">Lopez</em>. It would be too much to expect them
9593 to write an opinion that recognized, much less explained, the doctrine
9594 they had worked so hard to defeat.
9595 </p><p>
9596 But as I realized what had happened, I couldn't quite believe what I
9597 was reading. I had said there was no way this Court could reconcile
9598 limited powers with the Commerce Clause and unlimited powers with the
9599 Progress Clause. It had never even occurred to me that they could
9600 reconcile the two simply <span class="emphasis"><em>by not addressing the
9601 argument</em></span>. There was no inconsistency because they would not
9602 talk about the two together.  There was therefore no principle that
9603 followed from the <em class="citetitle">Lopez</em> case: In that context, Congress's power would
9604 be limited, but in this context it would not.
9605 </p><p>
9606 Yet by what right did they get to choose which of the framers' values
9607 they would respect? By what right did they&#8212;the silent
9608 five&#8212;get to select the part of the Constitution they would
9609 enforce based on the values they thought important? We were right back
9610 to the argument that I said I hated at the start: I had failed to
9611 convince them that the issue here was important, and I had failed to
9612 recognize that however much I might hate a system in which the Court
9613 gets to pick the constitutional values that it will respect, that is
9614 the system we have.
9615 </p><a class="indexterm" name="idp10090336"></a><p>
9616 Justices Breyer and Stevens wrote very strong dissents. Stevens's
9617 opinion was crafted internal to the law: He argued that the tradition
9618 of intellectual property law should not support this unjustified
9619 extension of terms. He based his argument on a parallel analysis that
9620 had governed in the context of patents (so had we). But the rest of
9621 the Court discounted the parallel&#8212;without explaining how the
9622 very same words in the Progress Clause could come to mean totally
9623 different things depending upon whether the words were about patents
9624 or copyrights.  The Court let Justice Stevens's charge go unanswered.
9625 </p><a class="indexterm" name="idp10094928"></a><p>
9626
9627 Justice Breyer's opinion, perhaps the best opinion he has ever
9628 written, was external to the Constitution. He argued that the term of
9629 copyrights has become so long as to be effectively unlimited. We had
9630 said that under the current term, a copyright gave an author 99.8
9631 percent of the value of a perpetual term. Breyer said we were wrong,
9632 that the actual number was 99.9997 percent of a perpetual term. Either
9633 way, the point was clear: If the Constitution said a term had to be
9634 <span class="quote">«<span class="quote">limited,</span>»</span> and the existing term was so long as to be effectively
9635 unlimited, then it was unconstitutional.
9636 </p><p>
9637 These two justices understood all the arguments we had made. But
9638 because neither believed in the <em class="citetitle">Lopez</em> case, neither was willing to push
9639 it as a reason to reject this extension. The case was decided without
9640 anyone having addressed the argument that we had carried from Judge
9641 Sentelle. It was <em class="citetitle">Hamlet</em> without the Prince.
9642 </p><p>
9643 <span class="strong"><strong>Defeat brings depression</strong></span>. They say
9644 it is a sign of health when depression gives way to anger. My anger
9645 came quickly, but it didn't cure the depression. This anger was of two
9646 sorts.
9647 </p><a class="indexterm" name="idp10101072"></a><p>
9648 It was first anger with the five <span class="quote">«<span class="quote">Conservatives.</span>»</span> It would have been
9649 one thing for them to have explained why the principle of <em class="citetitle">Lopez</em> didn't
9650 apply in this case. That wouldn't have been a very convincing
9651 argument, I don't believe, having read it made by others, and having
9652 tried to make it myself. But it at least would have been an act of
9653 integrity.  These justices in particular have repeatedly said that the
9654 proper mode of interpreting the Constitution is <span class="quote">«<span class="quote">originalism</span>»</span>&#8212;to
9655 first understand the framers' text, interpreted in their context, in
9656 light of the structure of the Constitution. That method had produced
9657 <em class="citetitle">Lopez</em> and many other <span class="quote">«<span class="quote">originalist</span>»</span> rulings. Where was their
9658 <span class="quote">«<span class="quote">originalism</span>»</span> now?
9659 </p><p>
9660 Here, they had joined an opinion that never once tried to explain
9661 what the framers had meant by crafting the Progress Clause as they
9662 did; they joined an opinion that never once tried to explain how the
9663 structure of that clause would affect the interpretation of Congress's
9664
9665
9666 power. And they joined an opinion that didn't even try to explain why
9667 this grant of power could be unlimited, whereas the Commerce Clause
9668 would be limited. In short, they had joined an opinion that did not
9669 apply to, and was inconsistent with, their own method for interpreting
9670 the Constitution. This opinion may well have yielded a result that
9671 they liked. It did not produce a reason that was consistent with their
9672 own principles.
9673 </p><p>
9674 My anger with the Conservatives quickly yielded to anger with
9675                 myself.
9676 For I had let a view of the law that I liked interfere with a view of
9677 the law as it is.
9678 </p><a class="indexterm" name="idp10107520"></a><p>
9679 Most lawyers, and most law professors, have little patience for
9680 idealism about courts in general and this Supreme Court in particular.
9681 Most have a much more pragmatic view. When Don Ayer said that this
9682 case would be won based on whether I could convince the Justices that
9683 the framers' values were important, I fought the idea, because I
9684 didn't want to believe that that is how this Court decides. I insisted
9685 on arguing this case as if it were a simple application of a set of
9686 principles.  I had an argument that followed in logic. I didn't need
9687 to waste my time showing it should also follow in popularity.
9688 </p><p>
9689 As I read back over the transcript from that argument in October, I
9690 can see a hundred places where the answers could have taken the
9691 conversation in different directions, where the truth about the harm
9692 that this unchecked power will cause could have been made clear to
9693 this Court. Justice Kennedy in good faith wanted to be shown. I,
9694 idiotically, corrected his question. Justice Souter in good faith
9695 wanted to be shown the First Amendment harms. I, like a math teacher,
9696 reframed the question to make the logical point. I had shown them how
9697 they could strike this law of Congress if they wanted to. There were a
9698 hundred places where I could have helped them want to, yet my
9699 stubbornness, my refusal to give in, stopped me. I have stood before
9700 hundreds of audiences trying to persuade; I have used passion in that
9701 effort to persuade; but I
9702
9703 refused to stand before this audience and try to persuade with the
9704 passion I had used elsewhere. It was not the basis on which a court
9705 should decide the issue.
9706 </p><a class="indexterm" name="idp10111040"></a><a class="indexterm" name="idp10111824"></a><p>
9707 Would it have been different if I had argued it differently? Would it
9708 have been different if Don Ayer had argued it? Or Charles Fried? Or
9709 Kathleen Sullivan?
9710 </p><p>
9711 My friends huddled around me to insist it would not. The Court
9712 was not ready, my friends insisted. This was a loss that was destined. It
9713 would take a great deal more to show our society why our framers were
9714 right. And when we do that, we will be able to show that Court.
9715 </p><p>
9716 Maybe, but I doubt it. These Justices have no financial interest in
9717 doing anything except the right thing. They are not lobbied. They have
9718 little reason to resist doing right. I can't help but think that if I had
9719 stepped down from this pretty picture of dispassionate justice, I could
9720 have persuaded.
9721 </p><a class="indexterm" name="idp10114576"></a><p>
9722 And even if I couldn't, then that doesn't excuse what happened in
9723 January. For at the start of this case, one of America's leading
9724 intellectual property professors stated publicly that my bringing this
9725 case was a mistake. <span class="quote">«<span class="quote">The Court is not ready,</span>»</span> Peter Jaszi said; this
9726 issue should not be raised until it is.
9727 </p><p>
9728 After the argument and after the decision, Peter said to me, and
9729 publicly, that he was wrong. But if indeed that Court could not have
9730 been persuaded, then that is all the evidence that's needed to know that
9731 here again Peter was right. Either I was not ready to argue this case in
9732 a way that would do some good or they were not ready to hear this case
9733 in a way that would do some good. Either way, the decision to bring
9734 this case&#8212;a decision I had made four years before&#8212;was wrong.
9735 </p><p>
9736 <span class="strong"><strong>While the reaction</strong></span> to the Sonny
9737 Bono Act itself was almost unanimously negative, the reaction to the
9738 Court's decision was mixed.  No one, at least in the press, tried to
9739 say that extending the term of copyright was a good idea. We had won
9740 that battle over ideas. Where
9741
9742
9743 the decision was praised, it was praised by papers that had been
9744 skeptical of the Court's activism in other cases. Deference was a good
9745 thing, even if it left standing a silly law. But where the decision
9746 was attacked, it was attacked because it left standing a silly and
9747 harmful law. <em class="citetitle">The New York Times</em> wrote in its editorial,
9748 </p><div class="blockquote"><blockquote class="blockquote"><p>
9749 In effect, the Supreme Court's decision makes it likely that we are
9750 seeing the beginning of the end of public domain and the birth of
9751 copyright perpetuity. The public domain has been a grand experiment,
9752 one that should not be allowed to die. The ability to draw freely on
9753 the entire creative output of humanity is one of the reasons we live
9754 in a time of such fruitful creative ferment.
9755 </p></blockquote></div><p>
9756 The best responses were in the cartoons. There was a gaggle of
9757 hilarious images&#8212;of Mickey in jail and the like. The best, from
9758 my view of the case, was Ruben Bolling's, reproduced in figure
9759 <a class="xref" href="#fig-18" title="Figure 13.1. ">13.1</a>. The <span class="quote">«<span class="quote">powerful
9760 and wealthy</span>»</span> line is a bit unfair. But the punch in the face
9761 felt exactly like that.
9762 <a class="indexterm" name="idp10123056"></a>
9763 </p><div class="figure-float" style="float: left;"><div class="figure"><a name="fig-18"></a><p class="title"><b>Figure 13.1. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="100%"><tr><td align="center"><img src="images/tom-the-dancing-bug.png" align="middle" width="100%"></td></tr></table></div><a class="indexterm" name="idp10126272"></a></div></div><br class="figure-break"></div><p>
9764 The image that will always stick in my head is that evoked by the
9765 quote from <em class="citetitle">The New York Times</em>. That <span class="quote">«<span class="quote">grand experiment</span>»</span> we call the
9766 <span class="quote">«<span class="quote">public domain</span>»</span> is over? When I can make light of it, I think, <span class="quote">«<span class="quote">Honey,
9767 I shrunk the Constitution.</span>»</span> But I can rarely make light of it. We had
9768 in our Constitution a commitment to free culture. In the case that I
9769 fathered, the Supreme Court effectively renounced that commitment. A
9770 better lawyer would have made them see differently.
9771 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp9785408" class="footnote"><p><a href="#idp9785408" class="para"><sup class="para">[179] </sup></a>
9772
9773 <a class="indexterm" name="idp9786144"></a>
9774 There's a parallel here with pornography that is a bit hard to
9775 describe, but it's a strong one. One phenomenon that the Internet
9776 created was a world of noncommercial pornographers&#8212;people who
9777 were distributing porn but were not making money directly or
9778 indirectly from that distribution.  Such a class didn't exist before
9779 the Internet came into being because the costs of distributing porn
9780 were so high. Yet this new class of distributors got special attention
9781 in the Supreme Court, when the Court struck down the Communications
9782 Decency Act of 1996. It was partly because of the burden on
9783 noncommercial speakers that the statute was found to exceed Congress's
9784 power. The same point could have been made about noncommercial
9785 publishers after the advent of the Internet. The Eric Eldreds of the
9786 world before the Internet were extremely few. Yet one would think it
9787 at least as important to protect the Eldreds of the world as to
9788 protect noncommercial pornographers.</p></div><div id="ftn.idp9809744" class="footnote"><p><a href="#idp9809744" class="para"><sup class="para">[180] </sup></a>
9789
9790 <a class="indexterm" name="idp9810448"></a>
9791 <a class="indexterm" name="idp9811232"></a>
9792 The full text is: <span class="quote">«<span class="quote">Sonny [Bono] wanted the term of copyright
9793 protection to last forever. I am informed by staff that such a change
9794 would violate the Constitution. I invite all of you to work with me to
9795 strengthen our copyright laws in all of the ways available to us. As
9796 you know, there is also Jack Valenti's proposal for a term to last
9797 forever less one day. Perhaps the Committee may look at that next
9798 Congress,</span>»</span> 144 Cong. Rec. H9946, 9951-2 (October 7, 1998).
9799 </p></div><div id="ftn.idp9863904" class="footnote"><p><a href="#idp9863904" class="para"><sup class="para">[181] </sup></a>
9800  Associated Press, <span class="quote">«<span class="quote">Disney Lobbying for Copyright Extension No Mickey
9801 Mouse Effort; Congress OKs Bill Granting Creators 20 More Years,</span>»</span>
9802 <em class="citetitle">Chicago Tribune</em>, 17 October 1998, 22.
9803 </p></div><div id="ftn.idp9865904" class="footnote"><p><a href="#idp9865904" class="para"><sup class="para">[182] </sup></a>
9804  See Nick Brown, <span class="quote">«<span class="quote">Fair Use No More?: Copyright in the Information
9805 Age,</span>»</span> available at
9806 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #49</a>.
9807 </p></div><div id="ftn.idp9868016" class="footnote"><p><a href="#idp9868016" class="para"><sup class="para">[183] </sup></a>
9808
9809 Alan K. Ota, <span class="quote">«<span class="quote">Disney in Washington: The Mouse That Roars,</span>»</span>
9810 <em class="citetitle">Congressional Quarterly This Week</em>, 8 August 1990, available at
9811 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #50</a>.
9812 </p></div><div id="ftn.idp9884160" class="footnote"><p><a href="#idp9884160" class="para"><sup class="para">[184] </sup></a>
9813  <em class="citetitle">United States</em> v. <em class="citetitle">Lopez</em>, 514 U.S. 549, 564 (1995).
9814 </p></div><div id="ftn.idp9887408" class="footnote"><p><a href="#idp9887408" class="para"><sup class="para">[185] </sup></a>
9815
9816 <em class="citetitle">United States</em> v. <em class="citetitle">Morrison</em>, 529 U.S. 598 (2000).
9817 </p></div><div id="ftn.idp9889648" class="footnote"><p><a href="#idp9889648" class="para"><sup class="para">[186] </sup></a>
9818
9819 If it is a principle about enumerated powers, then the principle
9820 carries from one enumerated power to another. The animating point in
9821 the context of the Commerce Clause was that the interpretation offered
9822 by the government would allow the government unending power to
9823 regulate commerce&#8212;the limitation to interstate commerce
9824 notwithstanding. The same point is true in the context of the
9825 Copyright Clause. Here, too, the government's interpretation would
9826 allow the government unending power to regulate copyrights&#8212;the
9827 limitation to <span class="quote">«<span class="quote">limited times</span>»</span> notwithstanding.
9828 </p></div><div id="ftn.idp9904112" class="footnote"><p><a href="#idp9904112" class="para"><sup class="para">[187] </sup></a>
9829
9830 Brief of the Nashville Songwriters Association, <em class="citetitle">Eldred</em>
9831 v. <em class="citetitle">Ashcroft</em>, 537 U.S.  186 (2003) (No. 01-618), n.10, available
9832 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #51</a>.
9833 </p></div><div id="ftn.idp9911168" class="footnote"><p><a href="#idp9911168" class="para"><sup class="para">[188] </sup></a>
9834  The figure of 2 percent is an extrapolation from the study by the
9835                 Congressional
9836 Research Service, in light of the estimated renewal ranges. See Brief
9837 of Petitioners, <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 7, available at
9838 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #52</a>.
9839 </p></div><div id="ftn.idp9929664" class="footnote"><p><a href="#idp9929664" class="para"><sup class="para">[189] </sup></a>
9840
9841 See David G. Savage, <span class="quote">«<span class="quote">High Court Scene of Showdown on Copyright Law,</span>»</span>
9842 <em class="citetitle">Los Angeles Times</em>, 6 October 2002; David Streitfeld, <span class="quote">«<span class="quote">Classic Movies,
9843 Songs, Books at Stake; Supreme Court Hears Arguments Today on Striking
9844 Down Copyright Extension,</span>»</span> <em class="citetitle">Orlando Sentinel Tribune</em>, 9 October 2002.
9845 </p></div><div id="ftn.idp9934976" class="footnote"><p><a href="#idp9934976" class="para"><sup class="para">[190] </sup></a>
9846
9847 Brief of Hal Roach Studios and Michael Agee as Amicus Curiae
9848 Supporting the Petitoners, <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 537
9849 U.S. 186 (2003) (No. 01- 618), 12. See also Brief of Amicus Curiae
9850 filed on behalf of Petitioners by the Internet Archive, <em class="citetitle">Eldred</em>
9851 v. <em class="citetitle">Ashcroft</em>, available at
9852 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #53</a>.
9853 </p></div><div id="ftn.idp9963824" class="footnote"><p><a href="#idp9963824" class="para"><sup class="para">[191] </sup></a>
9854
9855 Jason Schultz, <span class="quote">«<span class="quote">The Myth of the 1976 Copyright `Chaos' Theory,</span>»</span> 20
9856 December 2002, available at
9857 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #54</a>.
9858 </p></div><div id="ftn.idp10022544" class="footnote"><p><a href="#idp10022544" class="para"><sup class="para">[192] </sup></a>
9859
9860 Brief of Amici Dr. Seuss Enterprise et al., <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 537
9861 U.S.  (2003) (No. 01-618), 19.
9862 </p></div><div id="ftn.idp10025360" class="footnote"><p><a href="#idp10025360" class="para"><sup class="para">[193] </sup></a>
9863
9864 Dinitia Smith, <span class="quote">«<span class="quote">Immortal Words, Immortal Royalties? Even Mickey
9865 Mouse Joins the Fray,</span>»</span> <em class="citetitle">New York Times</em>, 28 March 1998, B7.
9866 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="eldred-ii"></a>Chapter 14. Chapter Fourteen: Eldred II</h2></div></div></div><p>
9867 <span class="strong"><strong>The day</strong></span>
9868 <em class="citetitle">Eldred</em> was decided, fate would have it that I
9869 was to travel to Washington, D.C. (The day the rehearing petition in
9870 <em class="citetitle">Eldred</em> was denied&#8212;meaning the case was
9871 really finally over&#8212;fate would have it that I was giving a
9872 speech to technologists at Disney World.)  This was a particularly
9873 long flight to my least favorite city. The drive into the city from
9874 Dulles was delayed because of traffic, so I opened up my computer and
9875 wrote an op-ed piece.
9876 </p><a class="indexterm" name="idp10134048"></a><p>
9877 It was an act of contrition. During the whole of the flight from San
9878 Francisco to Washington, I had heard over and over again in my head
9879 the same advice from Don Ayer: You need to make them see why it is
9880 important. And alternating with that command was the question of
9881 Justice Kennedy: <span class="quote">«<span class="quote">For all these years the act has impeded progress in
9882 science and the useful arts. I just don't see any empirical evidence for
9883 that.</span>»</span> And so, having failed in the argument of constitutional principle,
9884 finally, I turned to an argument of politics.
9885 </p><p>
9886 <em class="citetitle">The New York Times</em> published the piece. In it, I proposed a simple
9887 fix: Fifty years after a work has been published, the copyright owner
9888
9889 would be required to register the work and pay a small fee. If he paid
9890 the fee, he got the benefit of the full term of copyright. If he did not,
9891 the work passed into the public domain.
9892 </p><p>
9893 We called this the Eldred Act, but that was just to give it a name.
9894 Eric Eldred was kind enough to let his name be used once again, but as
9895 he said early on, it won't get passed unless it has another name.
9896 </p><p>
9897 Or another two names. For depending upon your perspective, this
9898 is either the <span class="quote">«<span class="quote">Public Domain Enhancement Act</span>»</span> or the <span class="quote">«<span class="quote">Copyright
9899 Term Deregulation Act.</span>»</span> Either way, the essence of the idea is clear
9900 and obvious: Remove copyright where it is doing nothing except
9901 blocking access and the spread of knowledge. Leave it for as long as
9902 Congress allows for those works where its worth is at least $1. But for
9903 everything else, let the content go.
9904 </p><a class="indexterm" name="idp10139856"></a><p>
9905 The reaction to this idea was amazingly strong. Steve Forbes endorsed
9906 it in an editorial. I received an avalanche of e-mail and letters
9907 expressing support. When you focus the issue on lost creativity,
9908 people can see the copyright system makes no sense. As a good
9909 Republican might say, here government regulation is simply getting in
9910 the way of innovation and creativity. And as a good Democrat might
9911 say, here the government is blocking access and the spread of
9912 knowledge for no good reason. Indeed, there is no real difference
9913 between Democrats and Republicans on this issue. Anyone can recognize
9914 the stupid harm of the present system.
9915 </p><p>
9916 Indeed, many recognized the obvious benefit of the registration
9917 requirement.  For one of the hardest things about the current system
9918 for people who want to license content is that there is no obvious
9919 place to look for the current copyright owners. Since registration is
9920 not required, since marking content is not required, since no
9921 formality at all is required, it is often impossibly hard to locate
9922 copyright owners to ask permission to use or license their work. This
9923 system would lower these costs, by establishing at least one registry
9924 where copyright owners could be identified.
9925 </p><a class="indexterm" name="idp10143344"></a><a class="indexterm" name="idp10144160"></a><p>
9926
9927 As I described in chapter <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>, formalities in copyright law were
9928 removed in 1976, when Congress followed the Europeans by abandoning
9929 any formal requirement before a copyright is granted.<a href="#ftn.idp10146720" class="footnote" name="idp10146720"><sup class="footnote">[194]</sup></a>
9930 The Europeans are said to view copyright as a <span class="quote">«<span class="quote">natural right.</span>»</span> Natural
9931 rights don't need forms to exist. Traditions, like the Anglo-American
9932 tradition that required copyright owners to follow form if their
9933 rights were to be protected, did not, the Europeans thought, properly
9934 respect the dignity of the author. My right as a creator turns on my
9935 creativity, not upon the special favor of the government.
9936 </p><p>
9937 That's great rhetoric. It sounds wonderfully romantic. But it is
9938 absurd copyright policy. It is absurd especially for authors, because
9939 a world without formalities harms the creator. The ability to spread
9940 <span class="quote">«<span class="quote">Walt Disney creativity</span>»</span> is destroyed when there is no simple way to
9941 know what's protected and what's not.
9942 </p><a class="indexterm" name="idp10152848"></a><p>
9943 The fight against formalities achieved its first real victory in
9944 Berlin in 1908. International copyright lawyers amended the Berne
9945 Convention in 1908, to require copyright terms of life plus fifty
9946 years, as well as the abolition of copyright formalities. The
9947 formalities were hated because the stories of inadvertent loss were
9948 increasingly common. It was as if a Charles Dickens character ran all
9949 copyright offices, and the failure to dot an <em class="citetitle">i</em> or cross a
9950 <em class="citetitle">t</em> resulted in the loss of widows' only income.
9951 </p><p>
9952 These complaints were real and sensible. And the strictness of the
9953 formalities, especially in the United States, was absurd. The law
9954 should always have ways of forgiving innocent mistakes. There is no
9955 reason copyright law couldn't, as well. Rather than abandoning
9956 formalities totally, the response in Berlin should have been to
9957 embrace a more equitable system of registration.
9958 </p><p>
9959 Even that would have been resisted, however, because registration
9960 in the nineteenth and twentieth centuries was still expensive. It was
9961 also a hassle. The abolishment of formalities promised not only to save
9962 the starving widows, but also to lighten an unnecessary regulatory
9963                 burden
9964 imposed upon creators.
9965 </p><p>
9966 In addition to the practical complaint of authors in 1908, there was
9967 a moral claim as well. There was no reason that creative property
9968
9969
9970 should be a second-class form of property. If a carpenter builds a
9971 table, his rights over the table don't depend upon filing a form with
9972 the government.  He has a property right over the table <span class="quote">«<span class="quote">naturally,</span>»</span>
9973 and he can assert that right against anyone who would steal the table,
9974 whether or not he has informed the government of his ownership of the
9975 table.
9976 </p><p>
9977 This argument is correct, but its implications are misleading. For the
9978 argument in favor of formalities does not depend upon creative
9979 property being second-class property. The argument in favor of
9980 formalities turns upon the special problems that creative property
9981 presents.  The law of formalities responds to the special physics of
9982 creative property, to assure that it can be efficiently and fairly
9983 spread.
9984 </p><p>
9985 No one thinks, for example, that land is second-class property just
9986 because you have to register a deed with a court if your sale of land
9987 is to be effective. And few would think a car is second-class property
9988 just because you must register the car with the state and tag it with
9989 a license.  In both of those cases, everyone sees that there is an
9990 important reason to secure registration&#8212;both because it makes
9991 the markets more efficient and because it better secures the rights of
9992 the owner. Without a registration system for land, landowners would
9993 perpetually have to guard their property. With registration, they can
9994 simply point the police to a deed. Without a registration system for
9995 cars, auto theft would be much easier. With a registration system, the
9996 thief has a high burden to sell a stolen car. A slight burden is
9997 placed on the property owner, but those burdens produce a much better
9998 system of protection for property generally.
9999 </p><p>
10000 It is similarly special physics that makes formalities important in
10001 copyright law. Unlike a carpenter's table, there's nothing in nature that
10002 makes it relatively obvious who might own a particular bit of creative
10003 property. A recording of Lyle Lovett's latest album can exist in a billion
10004 places without anything necessarily linking it back to a particular
10005 owner. And like a car, there's no way to buy and sell creative property
10006 with confidence unless there is some simple way to authenticate who is
10007 the author and what rights he has. Simple transactions are destroyed in
10008
10009
10010 a world without formalities. Complex, expensive,
10011 <span class="emphasis"><em>lawyer</em></span> transactions take their place.
10012 <a class="indexterm" name="idp10162368"></a>
10013 </p><p>
10014 This was the understanding of the problem with the Sonny Bono
10015 Act that we tried to demonstrate to the Court. This was the part it
10016 didn't <span class="quote">«<span class="quote">get.</span>»</span> Because we live in a system without formalities, there is no
10017 way easily to build upon or use culture from our past. If copyright
10018 terms were, as Justice Story said they would be, <span class="quote">«<span class="quote">short,</span>»</span> then this
10019 wouldn't matter much. For fourteen years, under the framers' system, a
10020 work would be presumptively controlled. After fourteen years, it would
10021 be presumptively uncontrolled.
10022 </p><p>
10023 But now that copyrights can be just about a century long, the
10024 inability to know what is protected and what is not protected becomes
10025 a huge and obvious burden on the creative process. If the only way a
10026 library can offer an Internet exhibit about the New Deal is to hire a
10027 lawyer to clear the rights to every image and sound, then the
10028 copyright system is burdening creativity in a way that has never been
10029 seen before <span class="emphasis"><em>because there are no formalities</em></span>.
10030 </p><p>
10031 The Eldred Act was designed to respond to exactly this problem. If
10032 it is worth $1 to you, then register your work and you can get the
10033 longer term. Others will know how to contact you and, therefore, how
10034 to get your permission if they want to use your work. And you will get
10035 the benefit of an extended copyright term.
10036 </p><p>
10037 If it isn't worth it to you to register to get the benefit of an extended
10038 term, then it shouldn't be worth it for the government to defend your
10039 monopoly over that work either. The work should pass into the public
10040 domain where anyone can copy it, or build archives with it, or create a
10041 movie based on it. It should become free if it is not worth $1 to you.
10042 </p><p>
10043 Some worry about the burden on authors. Won't the burden of
10044 registering the work mean that the $1 is really misleading? Isn't the
10045 hassle worth more than $1? Isn't that the real problem with
10046 registration?
10047 </p><p>
10048 It is. The hassle is terrible. The system that exists now is awful. I
10049 completely agree that the Copyright Office has done a terrible job (no
10050 doubt because they are terribly funded) in enabling simple and cheap
10051
10052
10053 registrations. Any real solution to the problem of formalities must
10054 address the real problem of <span class="emphasis"><em>governments</em></span> standing
10055 at the core of any system of formalities. In this book, I offer such a
10056 solution. That solution essentially remakes the Copyright Office. For
10057 now, assume it was Amazon that ran the registration system. Assume it
10058 was one-click registration.  The Eldred Act would propose a simple,
10059 one-click registration fifty years after a work was published. Based
10060 upon historical data, that system would move up to 98 percent of
10061 commercial work, commercial work that no longer had a commercial life,
10062 into the public domain within fifty years. What do you think?
10063 </p><a class="indexterm" name="idp10170416"></a><p>
10064 <span class="strong"><strong>When Steve Forbes</strong></span> endorsed the
10065 idea, some in Washington began to pay attention. Many people contacted
10066 me pointing to representatives who might be willing to introduce the
10067 Eldred Act. And I had a few who directly suggested that they might be
10068 willing to take the first step.
10069 </p><a class="indexterm" name="idp10172576"></a><p>
10070 One representative, Zoe Lofgren of California, went so far as to get
10071 the bill drafted. The draft solved any problem with international
10072 law. It imposed the simplest requirement upon copyright owners
10073 possible. In May 2003, it looked as if the bill would be
10074 introduced. On May 16, I posted on the Eldred Act blog, <span class="quote">«<span class="quote">we are
10075 close.</span>»</span> There was a general reaction in the blog community that
10076 something good might happen here.
10077 </p><p>
10078 But at this stage, the lobbyists began to intervene. Jack Valenti and
10079 the MPAA general counsel came to the congresswoman's office to give
10080 the view of the MPAA. Aided by his lawyer, as Valenti told me, Valenti
10081 informed the congresswoman that the MPAA would oppose the Eldred
10082 Act. The reasons are embarrassingly thin. More importantly, their
10083 thinness shows something clear about what this debate is really about.
10084 </p><p>
10085 The MPAA argued first that Congress had <span class="quote">«<span class="quote">firmly rejected the central
10086 concept in the proposed bill</span>»</span>&#8212;that copyrights be renewed. That
10087 was true, but irrelevant, as Congress's <span class="quote">«<span class="quote">firm rejection</span>»</span> had occurred
10088
10089 long before the Internet made subsequent uses much more likely.
10090 Second, they argued that the proposal would harm poor copyright
10091 owners&#8212;apparently those who could not afford the $1 fee. Third,
10092 they argued that Congress had determined that extending a copyright
10093 term would encourage restoration work. Maybe in the case of the small
10094 percentage of work covered by copyright law that is still commercially
10095 valuable, but again this was irrelevant, as the proposal would not cut
10096 off the extended term unless the $1 fee was not paid. Fourth, the MPAA
10097 argued that the bill would impose <span class="quote">«<span class="quote">enormous</span>»</span> costs, since a
10098 registration system is not free. True enough, but those costs are
10099 certainly less than the costs of clearing the rights for a copyright
10100 whose owner is not known. Fifth, they worried about the risks if the
10101 copyright to a story underlying a film were to pass into the public
10102 domain. But what risk is that? If it is in the public domain, then the
10103 film is a valid derivative use.
10104 </p><p>
10105 Finally, the MPAA argued that existing law enabled copyright owners to
10106 do this if they wanted. But the whole point is that there are
10107 thousands of copyright owners who don't even know they have a
10108 copyright to give. Whether they are free to give away their copyright
10109 or not&#8212;a controversial claim in any case&#8212;unless they know
10110 about a copyright, they're not likely to.
10111 </p><p>
10112 <span class="strong"><strong>At the beginning</strong></span> of this book, I
10113 told two stories about the law reacting to changes in technology. In
10114 the one, common sense prevailed.  In the other, common sense was
10115 delayed. The difference between the two stories was the power of the
10116 opposition&#8212;the power of the side that fought to defend the
10117 status quo. In both cases, a new technology threatened old
10118 interests. But in only one case did those interest's have the power to
10119 protect themselves against this new competitive threat.
10120 </p><p>
10121 I used these two cases as a way to frame the war that this book has
10122 been about. For here, too, a new technology is forcing the law to react.
10123 And here, too, we should ask, is the law following or resisting common
10124 sense? If common sense supports the law, what explains this common
10125 sense?
10126 </p><p>
10127
10128
10129 When the issue is piracy, it is right for the law to back the
10130 copyright owners. The commercial piracy that I described is wrong and
10131 harmful, and the law should work to eliminate it. When the issue is
10132 p2p sharing, it is easy to understand why the law backs the owners
10133 still: Much of this sharing is wrong, even if much is harmless. When
10134 the issue is copyright terms for the Mickey Mouses of the world, it is
10135 possible still to understand why the law favors Hollywood: Most people
10136 don't recognize the reasons for limiting copyright terms; it is thus
10137 still possible to see good faith within the resistance.
10138 </p><a class="indexterm" name="idp10183040"></a><p>
10139 But when the copyright owners oppose a proposal such as the Eldred
10140 Act, then, finally, there is an example that lays bare the naked
10141 selfinterest driving this war. This act would free an extraordinary
10142 range of content that is otherwise unused. It wouldn't interfere with
10143 any copyright owner's desire to exercise continued control over his
10144 content. It would simply liberate what Kevin Kelly calls the <span class="quote">«<span class="quote">Dark
10145 Content</span>»</span> that fills archives around the world. So when the warriors
10146 oppose a change like this, we should ask one simple question:
10147 </p><p>
10148 What does this industry really want?
10149 </p><p>
10150 With very little effort, the warriors could protect their content. So
10151 the effort to block something like the Eldred Act is not really about
10152 protecting <span class="emphasis"><em>their</em></span> content. The effort to block the
10153 Eldred Act is an effort to assure that nothing more passes into the
10154 public domain. It is another step to assure that the public domain
10155 will never compete, that there will be no use of content that is not
10156 commercially controlled, and that there will be no commercial use of
10157 content that doesn't require <span class="emphasis"><em>their</em></span> permission
10158 first.
10159 </p><p>
10160 The opposition to the Eldred Act reveals how extreme the other side
10161 is. The most powerful and sexy and well loved of lobbies really has as
10162 its aim not the protection of <span class="quote">«<span class="quote">property</span>»</span> but the rejection of a
10163 tradition.  Their aim is not simply to protect what is
10164 theirs. <span class="emphasis"><em>Their aim is to assure that all there is is what is
10165 theirs</em></span>.
10166 </p><p>
10167 It is not hard to understand why the warriors take this view. It is not
10168 hard to see why it would benefit them if the competition of the public
10169
10170
10171 domain tied to the Internet could somehow be quashed. Just as RCA
10172 feared the competition of FM, they fear the competition of a public
10173 domain connected to a public that now has the means to create with it
10174 and to share its own creation.
10175 </p><a class="indexterm" name="idp10190032"></a><a class="indexterm" name="idp10190816"></a><p>
10176 What is hard to understand is why the public takes this view. It is
10177 as if the law made airplanes trespassers. The MPAA stands with the
10178 Causbys and demands that their remote and useless property rights be
10179 respected, so that these remote and forgotten copyright holders might
10180 block the progress of others.
10181 </p><p>
10182 All this seems to follow easily from this untroubled acceptance of the
10183 <span class="quote">«<span class="quote">property</span>»</span> in intellectual property. Common sense supports it, and so
10184 long as it does, the assaults will rain down upon the technologies of
10185 the Internet. The consequence will be an increasing <span class="quote">«<span class="quote">permission
10186 society.</span>»</span>  The past can be cultivated only if you can identify the
10187 owner and gain permission to build upon his work. The future will be
10188 controlled by this dead (and often unfindable) hand of the past.
10189 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp10146720" class="footnote"><p><a href="#idp10146720" class="para"><sup class="para">[194] </sup></a>
10190
10191 <a class="indexterm" name="idp10147424"></a>
10192 Until the 1908 Berlin Act of the Berne Convention, national copyright
10193 legislation sometimes made protection depend upon compliance with
10194 formalities such as registration, deposit, and affixation of notice of
10195 the author's claim of copyright. However, starting with the 1908 act,
10196 every text of the Convention has provided that <span class="quote">«<span class="quote">the enjoyment and the
10197 exercise</span>»</span> of rights guaranteed by the Convention <span class="quote">«<span class="quote">shall not be subject
10198 to any formality.</span>»</span>  The prohibition against formalities is presently
10199 embodied in Article 5(2) of the Paris Text of the Berne
10200 Convention. Many countries continue to impose some form of deposit or
10201 registration requirement, albeit not as a condition of
10202 copyright. French law, for example, requires the deposit of copies of
10203 works in national repositories, principally the National Museum.
10204 Copies of books published in the United Kingdom must be deposited in
10205 the British Library. The German Copyright Act provides for a Registrar
10206 of Authors where the author's true name can be filed in the case of
10207 anonymous or pseudonymous works. Paul Goldstein, <em class="citetitle">International
10208 Intellectual Property Law, Cases and Materials</em> (New York: Foundation
10209 Press, 2001), 153&#8211;54.  </p></div></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-conclusion"></a>Chapter . Conclusion</h1></div></div></div><a class="indexterm" name="idxafricamedicationsforhivpatientsin"></a><a class="indexterm" name="idxaidsmedications"></a><a class="indexterm" name="idxantiretroviraldrugs"></a><a class="indexterm" name="idxdevelopingcountriesforeignpatentcostsin2"></a><a class="indexterm" name="idxdrugspharmaceutical"></a><a class="indexterm" name="idxhivaidstherapies"></a><p>
10210 <span class="strong"><strong>There are more</strong></span> than 35 million
10211 people with the AIDS virus worldwide. Twenty-five million of them live
10212 in sub-Saharan Africa.  Seventeen million have already died. Seventeen
10213 million Africans is proportional percentage-wise to seven million
10214 Americans. More importantly, it is seventeen million Africans.
10215 </p><p>
10216 There is no cure for AIDS, but there are drugs to slow its
10217 progression.  These antiretroviral therapies are still experimental,
10218 but they have already had a dramatic effect. In the United States,
10219 AIDS patients who regularly take a cocktail of these drugs increase
10220 their life expectancy by ten to twenty years. For some, the drugs make
10221 the disease almost invisible.
10222 </p><p>
10223 These drugs are expensive. When they were first introduced in the
10224 United States, they cost between $10,000 and $15,000 per person per
10225 year. Today, some cost $25,000 per year. At these prices, of course, no
10226 African nation can afford the drugs for the vast majority of its
10227                 population:
10228 $15,000 is thirty times the per capita gross national product of
10229 Zimbabwe. At these prices, the drugs are totally unavailable.<a href="#ftn.idp10208512" class="footnote" name="idp10208512"><sup class="footnote">[195]</sup></a>
10230 </p><a class="indexterm" name="idxpatentsonpharmaceuticals"></a><a class="indexterm" name="idxpharmaceuticalpatents"></a><p>
10231
10232 These prices are not high because the ingredients of the drugs are
10233 expensive. These prices are high because the drugs are protected by
10234 patents. The drug companies that produced these life-saving mixes
10235 enjoy at least a twenty-year monopoly for their inventions. They use
10236 that monopoly power to extract the most they can from the market. That
10237 power is in turn used to keep the prices high.
10238 </p><p>
10239 There are many who are skeptical of patents, especially drug
10240 patents. I am not. Indeed, of all the areas of research that might be
10241 supported by patents, drug research is, in my view, the clearest case
10242 where patents are needed. The patent gives the drug company some
10243 assurance that if it is successful in inventing a new drug to treat a
10244 disease, it will be able to earn back its investment and more. This is
10245 socially an extremely valuable incentive. I am the last person who
10246 would argue that the law should abolish it, at least without other
10247 changes.
10248 </p><p>
10249 But it is one thing to support patents, even drug patents. It is
10250 another thing to determine how best to deal with a crisis. And as
10251 African leaders began to recognize the devastation that AIDS was
10252 bringing, they started looking for ways to import HIV treatments at
10253 costs significantly below the market price.
10254 </p><a class="indexterm" name="idxinternationallaw2"></a><a class="indexterm" name="idxparallelimportation"></a><a class="indexterm" name="idxsouthafricarepublicofpharmaceuticalimportsby"></a><p>
10255 In 1997, South Africa tried one tack. It passed a law to allow the
10256 importation of patented medicines that had been produced or sold in
10257 another nation's market with the consent of the patent owner. For
10258 example, if the drug was sold in India, it could be imported into
10259 Africa from India. This is called <span class="quote">«<span class="quote">parallel importation,</span>»</span> and it is
10260 generally permitted under international trade law and is specifically
10261 permitted within the European Union.<a href="#ftn.idp10223088" class="footnote" name="idp10223088"><sup class="footnote">[196]</sup></a>
10262 </p><a class="indexterm" name="idp10226368"></a><p>
10263 However, the United States government opposed the bill. Indeed, more
10264 than opposed. As the International Intellectual Property Association
10265 characterized it, <span class="quote">«<span class="quote">The U.S. government pressured South Africa &#8230;
10266 not to permit compulsory licensing or parallel
10267 imports.</span>»</span><a href="#ftn.idp9833088" class="footnote" name="idp9833088"><sup class="footnote">[197]</sup></a>
10268 Through the Office of the United States Trade Representative, the
10269 government asked South Africa to change the law&#8212;and to add
10270 pressure to that request, in 1998, the USTR listed South Africa for
10271 possible trade sanctions.
10272
10273 That same year, more than forty pharmaceutical companies began
10274 proceedings in the South African courts to challenge the government's
10275 actions. The United States was then joined by other governments from
10276 the EU. Their claim, and the claim of the pharmaceutical companies,
10277 was that South Africa was violating its obligations under
10278 international law by discriminating against a particular kind of
10279 patent&#8212; pharmaceutical patents. The demand of these governments,
10280 with the United States in the lead, was that South Africa respect
10281 these patents as it respects any other patent, regardless of any
10282 effect on the treatment of AIDS within South Africa.<a href="#ftn.idp10230224" class="footnote" name="idp10230224"><sup class="footnote">[198]</sup></a>
10283 </p><a class="indexterm" name="idp10233344"></a><p>
10284 We should place the intervention by the United States in context.  No
10285 doubt patents are not the most important reason that Africans don't
10286 have access to drugs. Poverty and the total absence of an effective
10287 health care infrastructure matter more. But whether patents are the
10288 most important reason or not, the price of drugs has an effect on
10289 their demand, and patents affect price. And so, whether massive or
10290 marginal, there was an effect from our government's intervention to
10291 stop the flow of medications into Africa.
10292 </p><p>
10293 By stopping the flow of HIV treatment into Africa, the United
10294 States government was not saving drugs for United States citizens.
10295 This is not like wheat (if they eat it, we can't); instead, the flow that the
10296 United States intervened to stop was, in effect, a flow of knowledge:
10297 information about how to take chemicals that exist within Africa, and
10298 turn those chemicals into drugs that would save 15 to 30 million lives.
10299 </p><p>
10300 Nor was the intervention by the United States going to protect the
10301 profits of United States drug companies&#8212;at least, not substantially. It
10302 was not as if these countries were in the position to buy the drugs for
10303 the prices the drug companies were charging. Again, the Africans are
10304 wildly too poor to afford these drugs at the offered prices. Stopping the
10305 parallel import of these drugs would not substantially increase the sales
10306 by U.S. companies.
10307 </p><p>
10308 Instead, the argument in favor of restricting this flow of
10309 information, which was needed to save the lives of millions, was an
10310 argument
10311
10312 about the sanctity of property.<a href="#ftn.idp10237920" class="footnote" name="idp10237920"><sup class="footnote">[199]</sup></a>
10313 It was because <span class="quote">«<span class="quote">intellectual property</span>»</span> would be violated that these
10314 drugs should not flow into Africa. It was a principle about the
10315 importance of <span class="quote">«<span class="quote">intellectual property</span>»</span> that led these government actors
10316 to intervene against the South African response to AIDS.
10317 </p><a class="indexterm" name="idp10245232"></a><p>
10318 Now just step back for a moment. There will be a time thirty years
10319 from now when our children look back at us and ask, how could we have
10320 let this happen? How could we allow a policy to be pursued whose
10321 direct cost would be to speed the death of 15 to 30 million Africans,
10322 and whose only real benefit would be to uphold the <span class="quote">«<span class="quote">sanctity</span>»</span> of an
10323 idea?  What possible justification could there ever be for a policy
10324 that results in so many deaths? What exactly is the insanity that
10325 would allow so many to die for such an abstraction?
10326 </p><a class="indexterm" name="idxcorporationsinpharmaceuticalindustry"></a><p>
10327 Some blame the drug companies. I don't. They are corporations.
10328 Their managers are ordered by law to make money for the corporation.
10329 They push a certain patent policy not because of ideals, but because it is
10330 the policy that makes them the most money. And it only makes them the
10331 most money because of a certain corruption within our political system&#8212;
10332 a corruption the drug companies are certainly not responsible for.
10333 </p><p>
10334 The corruption is our own politicians' failure of integrity. For the
10335 drug companies would love&#8212;they say, and I believe them&#8212;to
10336 sell their drugs as cheaply as they can to countries in Africa and
10337 elsewhere.  There are issues they'd have to resolve to make sure the
10338 drugs didn't get back into the United States, but those are mere
10339 problems of technology.  They could be overcome.
10340 </p><a class="indexterm" name="idxintellectualpropertyrightsofdrugpatents"></a><p>
10341 A different problem, however, could not be overcome. This is the
10342 fear of the grandstanding politician who would call the presidents of
10343 the drug companies before a Senate or House hearing, and ask, <span class="quote">«<span class="quote">How
10344 is it you can sell this HIV drug in Africa for only $1 a pill, but the same
10345 drug would cost an American $1,500?</span>»</span> Because there is no <span class="quote">«<span class="quote">sound
10346 bite</span>»</span> answer to that question, its effect would be to induce regulation
10347 of prices in America. The drug companies thus avoid this spiral by
10348 avoiding the first step. They reinforce the idea that property should be
10349
10350 sacred. They adopt a rational strategy in an irrational context, with the
10351 unintended consequence that perhaps millions die. And that rational
10352 strategy thus becomes framed in terms of this ideal&#8212;the sanctity of an
10353 idea called <span class="quote">«<span class="quote">intellectual property.</span>»</span>
10354 </p><a class="indexterm" name="idp10256160"></a><a class="indexterm" name="idp10257408"></a><a class="indexterm" name="idp10258672"></a><a class="indexterm" name="idp10259984"></a><a class="indexterm" name="idp10261360"></a><a class="indexterm" name="idp10262608"></a><a class="indexterm" name="idp10263920"></a><p>
10355 So when the common sense of your child confronts you, what will
10356 you say? When the common sense of a generation finally revolts
10357 against what we have done, how will we justify what we have done?
10358 What is the argument?
10359 </p><p>
10360 A sensible patent policy could endorse and strongly support the patent
10361 system without having to reach everyone everywhere in exactly the same
10362 way. Just as a sensible copyright policy could endorse and strongly
10363 support a copyright system without having to regulate the spread of
10364 culture perfectly and forever, a sensible patent policy could endorse
10365 and strongly support a patent system without having to block the
10366 spread of drugs to a country not rich enough to afford market prices
10367 in any case. A sensible policy, in other words, could be a balanced
10368 policy. For most of our history, both copyright and patent policies
10369 were balanced in just this sense.
10370 </p><a class="indexterm" name="idp10267648"></a><a class="indexterm" name="idp10268928"></a><a class="indexterm" name="idp10270272"></a><p>
10371 But we as a culture have lost this sense of balance. We have lost the
10372 critical eye that helps us see the difference between truth and
10373 extremism.  A certain property fundamentalism, having no connection to
10374 our tradition, now reigns in this culture&#8212;bizarrely, and with
10375 consequences more grave to the spread of ideas and culture than almost
10376 any other single policy decision that we as a democracy will make.
10377 </p><a class="indexterm" name="idp10271792"></a><p>
10378 <span class="strong"><strong>A simple idea</strong></span> blinds us, and under
10379 the cover of darkness, much happens that most of us would reject if
10380 any of us looked. So uncritically do we accept the idea of property in
10381 ideas that we don't even notice how monstrous it is to deny ideas to a
10382 people who are dying without them. So uncritically do we accept the
10383 idea of property in culture that we don't even question when the
10384 control of that property removes our
10385
10386 ability, as a people, to develop our culture democratically. Blindness
10387 becomes our common sense. And the challenge for anyone who would
10388 reclaim the right to cultivate our culture is to find a way to make
10389 this common sense open its eyes.
10390 </p><p>
10391 So  far, common sense sleeps. There is no revolt. Common sense
10392 does not yet see what there could be to revolt about. The extremism
10393 that now dominates this debate fits with ideas that seem natural, and
10394 that fit is reinforced by the RCAs of our day. They wage a frantic war
10395 to fight <span class="quote">«<span class="quote">piracy,</span>»</span> and devastate a culture for creativity. They defend
10396 the idea of <span class="quote">«<span class="quote">creative property,</span>»</span> while transforming real creators into
10397 modern-day sharecroppers. They are insulted by the idea that rights
10398 should be balanced, even though each of the major players in this
10399 content war was itself a beneficiary of a more balanced ideal. The
10400 hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even
10401 noticed. Powerful lobbies, complex issues, and MTV attention spans
10402 produce the <span class="quote">«<span class="quote">perfect storm</span>»</span> for free culture.
10403 </p><a class="indexterm" name="idp10278288"></a><a class="indexterm" name="idp10279104"></a><a class="indexterm" name="idxintellectualpropertyrightsinternationalorganizationonissuesof"></a><a class="indexterm" name="idp10281872"></a><a class="indexterm" name="idp10282976"></a><a class="indexterm" name="idp10283808"></a><a class="indexterm" name="idp10284640"></a><a class="indexterm" name="idp10285472"></a><a class="indexterm" name="idp10286576"></a><a class="indexterm" name="idp10287408"></a><a class="indexterm" name="idxworldintellectualpropertyorganizationwipo"></a><a class="indexterm" name="idp10289888"></a><a class="indexterm" name="idp10290704"></a><a class="indexterm" name="idp10291536"></a><a class="indexterm" name="idxbiomedicalresearch"></a><p>
10404 <span class="strong"><strong>In August 2003</strong></span>, a fight broke out
10405 in the United States about a decision by the World Intellectual
10406 Property Organization to cancel a meeting.<a href="#ftn.idp10294896" class="footnote" name="idp10294896"><sup class="footnote">[200]</sup></a>
10407 At the request of a wide range of interests, WIPO had decided to hold
10408 a meeting to discuss <span class="quote">«<span class="quote">open and collaborative projects to create public
10409 goods.</span>»</span> These are projects that have been successful in producing
10410 public goods without relying exclusively upon a proprietary use of
10411 intellectual property. Examples include the Internet and the World
10412 Wide Web, both of which were developed on the basis of protocols in
10413 the public domain. It included an emerging trend to support open
10414 academic journals, including the Public Library of Science project
10415 that I describe in chapter
10416 <a class="xref" href="#c-afterword" title="Chapter . Afterword"></a>.  It
10417 included a project to develop single nucleotide polymorphisms (SNPs),
10418 which are thought to have great significance in biomedical
10419 research. (That nonprofit project comprised a consortium of the
10420 Wellcome Trust and pharmaceutical and technological companies,
10421 including Amersham Biosciences, AstraZeneca,
10422
10423 Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche,
10424 Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It
10425 included the Global Positioning System, which Ronald Reagan set free
10426 in the early 1980s. And it included <span class="quote">«<span class="quote">open source and free software.</span>»</span>
10427 </p><a class="indexterm" name="idp10304144"></a><p>
10428 The aim of the meeting was to consider this wide range of projects
10429 from one common perspective: that none of these projects relied upon
10430 intellectual property extremism. Instead, in all of them, intellectual
10431 property was balanced by agreements to keep access open or to impose
10432 limitations on the way in which proprietary claims might be used.
10433 </p><a class="indexterm" name="idxlessiglawrenceininternationaldebateonintellectualproperty"></a><p>
10434 From the perspective of this book, then, the conference was ideal.<a href="#ftn.idp10308432" class="footnote" name="idp10308432"><sup class="footnote">[201]</sup></a>
10435 The projects within its scope included both commercial and
10436 noncommercial work. They primarily involved science, but from many
10437 perspectives.  And WIPO was an ideal venue for this discussion, since
10438 WIPO is the preeminent international body dealing with intellectual
10439 property issues.
10440 </p><a class="indexterm" name="idxworldsummitontheinformationsocietywsis"></a><p>
10441 Indeed, I was once publicly scolded for not recognizing this fact
10442 about WIPO. In February 2003, I delivered a keynote address to a
10443 preparatory conference for the World Summit on the Information Society
10444 (WSIS). At a press conference before the address, I was asked what I
10445 would say. I responded that I would be talking a little about the
10446 importance of balance in intellectual property for the development of
10447 an information society. The moderator for the event then promptly
10448 interrupted to inform me and the assembled reporters that no question
10449 about intellectual property would be discussed by WSIS, since those
10450 questions were the exclusive domain of WIPO. In the talk that I had
10451 prepared, I had actually made the issue of intellectual property
10452 relatively minor. But after this astonishing statement, I made
10453 intellectual property the sole focus of my talk. There was no way to
10454 talk about an <span class="quote">«<span class="quote">Information Society</span>»</span> unless one also talked about the
10455 range of information and culture that would be free. My talk did not
10456 make my immoderate moderator very happy. And she was no doubt correct
10457 that the scope of intellectual property protections was ordinarily the
10458 stuff of
10459
10460 WIPO. But in my view, there couldn't be too much of a conversation
10461 about how much intellectual property is needed, since in my view, the
10462 very idea of balance in intellectual property had been lost.
10463 </p><p>
10464 So whether or not WSIS can discuss balance in intellectual property, I
10465 had thought it was taken for granted that WIPO could and should. And
10466 thus the meeting about <span class="quote">«<span class="quote">open and collaborative projects to create
10467 public goods</span>»</span> seemed perfectly appropriate within the WIPO agenda.
10468 </p><a class="indexterm" name="idp10315856"></a><a class="indexterm" name="idp10317312"></a><a class="indexterm" name="idp10318752"></a><a class="indexterm" name="idxfreesoftwareopensourcesoftwarefsoss"></a><a class="indexterm" name="idp10321744"></a><a class="indexterm" name="idxmicrosoftonfreesoftware"></a><p>
10469 But there is one project within that list that is highly
10470 controversial, at least among lobbyists. That project is <span class="quote">«<span class="quote">open source
10471 and free software.</span>»</span>  Microsoft in particular is wary of discussion of
10472 the subject. From its perspective, a conference to discuss open source
10473 and free software would be like a conference to discuss Apple's
10474 operating system. Both open source and free software compete with
10475 Microsoft's software. And internationally, many governments have begun
10476 to explore requirements that they use open source or free software,
10477 rather than <span class="quote">«<span class="quote">proprietary software,</span>»</span> for their own internal uses.
10478 </p><a class="indexterm" name="idp10326224"></a><a class="indexterm" name="idp10327328"></a><a class="indexterm" name="idp10328160"></a><a class="indexterm" name="idp10328976"></a><p>
10479 I don't mean to enter that debate here. It is important only to
10480 make clear that the distinction is not between commercial and
10481 noncommercial software. There are many important companies that depend
10482 fundamentally upon open source and free software, IBM being the most
10483 prominent. IBM is increasingly shifting its focus to the GNU/Linux
10484 operating system, the most famous bit of <span class="quote">«<span class="quote">free software</span>»</span>&#8212;and IBM
10485 is emphatically a commercial entity. Thus, to support <span class="quote">«<span class="quote">open source and
10486 free software</span>»</span> is not to oppose commercial entities. It is, instead,
10487 to support a mode of software development that is different from
10488 Microsoft's.<a href="#ftn.idp10331424" class="footnote" name="idp10331424"><sup class="footnote">[202]</sup></a>
10489 </p><a class="indexterm" name="idp10337152"></a><a class="indexterm" name="idp10338576"></a><a class="indexterm" name="idp10339408"></a><p>
10490 More important for our purposes, to support <span class="quote">«<span class="quote">open source and free
10491 software</span>»</span> is not to oppose copyright. <span class="quote">«<span class="quote">Open source and free software</span>»</span>
10492 is not software in the public domain. Instead, like Microsoft's
10493 software, the copyright owners of free and open source software insist
10494 quite strongly that the terms of their software license be respected
10495 by
10496
10497 adopters of free and open source software. The terms of that license
10498 are no doubt different from the terms of a proprietary software
10499 license.  Free software licensed under the General Public License
10500 (GPL), for example, requires that the source code for the software be
10501 made available by anyone who modifies and redistributes the
10502 software. But that requirement is effective only if copyright governs
10503 software. If copyright did not govern software, then free software
10504 could not impose the same kind of requirements on its adopters. It
10505 thus depends upon copyright law just as Microsoft does.
10506 </p><a class="indexterm" name="idxintellectualpropertyrightsinternationalorganizationonissuesof2"></a><a class="indexterm" name="idxworldintellectualpropertyorganizationwipo2"></a><a class="indexterm" name="idxkrimjonathan"></a><a class="indexterm" name="idp10347872"></a><p>
10507 It is therefore understandable that as a proprietary software
10508 developer, Microsoft would oppose this WIPO meeting, and
10509 understandable that it would use its lobbyists to get the United
10510 States government to oppose it, as well. And indeed, that is just what
10511 was reported to have happened. According to Jonathan Krim of the
10512 <em class="citetitle">Washington Post</em>, Microsoft's lobbyists succeeded in getting the United
10513 States government to veto the meeting.<a href="#ftn.idp10350096" class="footnote" name="idp10350096"><sup class="footnote">[203]</sup></a>
10514 And without U.S. backing, the meeting was canceled.
10515 </p><p>
10516 I don't blame Microsoft for doing what it can to advance its own
10517 interests, consistent with the law. And lobbying governments is
10518 plainly consistent with the law. There was nothing surprising about
10519 its lobbying here, and nothing terribly surprising about the most
10520 powerful software producer in the United States having succeeded in
10521 its lobbying efforts.
10522 </p><a class="indexterm" name="idp10353072"></a><a class="indexterm" name="idp10354464"></a><p>
10523 What was surprising was the United States government's reason for
10524 opposing the meeting. Again, as reported by Krim, Lois Boland, acting
10525 director of international relations for the U.S. Patent and Trademark
10526 Office, explained that <span class="quote">«<span class="quote">open-source software runs counter to the
10527 mission of WIPO, which is to promote intellectual-property rights.</span>»</span>
10528 She is quoted as saying, <span class="quote">«<span class="quote">To hold a meeting which has as its purpose
10529 to disclaim or waive such rights seems to us to be contrary to the
10530 goals of WIPO.</span>»</span>
10531 </p><a class="indexterm" name="idp10356944"></a><p>
10532 These statements are astonishing on a number of levels.
10533 </p><a class="indexterm" name="idp10358640"></a><p>
10534 First, they are just flat wrong. As I described, most open source and
10535 free software relies fundamentally upon the intellectual property
10536 right called <span class="quote">«<span class="quote">copyright</span>»</span>.  Without it, restrictions imposed by those
10537 licenses wouldn't work. Thus, to say it <span class="quote">«<span class="quote">runs counter</span>»</span> to the mission
10538 of promoting intellectual property rights reveals an extraordinary gap
10539 in understanding&#8212;the sort of mistake that is excusable in a
10540 first-year law student, but an embarrassment from a high government
10541 official dealing with intellectual property issues.
10542 </p><a class="indexterm" name="idp10362192"></a><a class="indexterm" name="idp10362896"></a><a class="indexterm" name="idp10364000"></a><a class="indexterm" name="idp10364816"></a><p>
10543 Second, who ever said that WIPO's exclusive aim was to <span class="quote">«<span class="quote">promote</span>»</span>
10544 intellectual property maximally? As I had been scolded at the
10545 preparatory conference of WSIS, WIPO is to consider not only how best
10546 to protect intellectual property, but also what the best balance of
10547 intellectual property is. As every economist and lawyer knows, the
10548 hard question in intellectual property law is to find that
10549 balance. But that there should be limits is, I had thought,
10550 uncontested. One wants to ask Ms. Boland, are generic drugs (drugs
10551 based on drugs whose patent has expired) contrary to the WIPO mission?
10552 Does the public domain weaken intellectual property? Would it have
10553 been better if the protocols of the Internet had been patented?
10554 </p><a class="indexterm" name="idp10367472"></a><p>
10555 Third, even if one believed that the purpose of WIPO was to maximize
10556 intellectual property rights, in our tradition, intellectual property
10557 rights are held by individuals and corporations. They get to decide
10558 what to do with those rights because, again, they are
10559 <span class="emphasis"><em>their</em></span> rights. If they want to <span class="quote">«<span class="quote">waive</span>»</span> or
10560 <span class="quote">«<span class="quote">disclaim</span>»</span> their rights, that is, within our tradition, totally
10561 appropriate. When Bill Gates gives away more than $20 billion to do
10562 good in the world, that is not inconsistent with the objectives of the
10563 property system. That is, on the contrary, just what a property system
10564 is supposed to be about: giving individuals the right to decide what
10565 to do with <span class="emphasis"><em>their</em></span> property.
10566 </p><a class="indexterm" name="idxboland"></a><p>
10567 When Ms. Boland says that there is something wrong with a meeting
10568 <span class="quote">«<span class="quote">which has as its purpose to disclaim or waive such rights,</span>»</span> she's
10569 saying that WIPO has an interest in interfering with the choices of
10570
10571 the individuals who own intellectual property rights. That somehow,
10572 WIPO's objective should be to stop an individual from <span class="quote">«<span class="quote">waiving</span>»</span> or
10573 <span class="quote">«<span class="quote">disclaiming</span>»</span> an intellectual property right. That the interest of
10574 WIPO is not just that intellectual property rights be maximized, but
10575 that they also should be exercised in the most extreme and restrictive
10576 way possible.
10577 </p><a class="indexterm" name="idxfeudalsystem"></a><a class="indexterm" name="idxpropertyrightsfeudalsystemof"></a><p>
10578 There is a history of just such a property system that is well known
10579 in the Anglo-American tradition. It is called <span class="quote">«<span class="quote">feudalism.</span>»</span> Under
10580 feudalism, not only was property held by a relatively small number of
10581 individuals and entities. And not only were the rights that ran with
10582 that property powerful and extensive. But the feudal system had a
10583 strong interest in assuring that property holders within that system
10584 not weaken feudalism by liberating people or property within their
10585 control to the free market. Feudalism depended upon maximum control
10586 and concentration. It fought any freedom that might interfere with
10587 that control.
10588 </p><a class="indexterm" name="idp10380528"></a><a class="indexterm" name="idp10381344"></a><p>
10589 As Peter Drahos and John Braithwaite relate, this is precisely the
10590 choice we are now making about intellectual property.<a href="#ftn.idp10382560" class="footnote" name="idp10382560"><sup class="footnote">[204]</sup></a>
10591 We will have an information society. That much is certain. Our only
10592 choice now is whether that information society will be
10593 <span class="emphasis"><em>free</em></span> or <span class="emphasis"><em>feudal</em></span>. The trend is
10594 toward the feudal.
10595 </p><a class="indexterm" name="idp10385840"></a><a class="indexterm" name="idp10387088"></a><p>
10596 When this battle broke, I blogged it. A spirited debate within the
10597 comment section ensued. Ms. Boland had a number of supporters who
10598 tried to show why her comments made sense. But there was one comment
10599 that was particularly depressing for me. An anonymous poster wrote,
10600 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idp10389408"></a><a class="indexterm" name="idp10390848"></a><p>
10601 George, you misunderstand Lessig: He's only talking about the world as
10602 it should be (<span class="quote">«<span class="quote">the goal of WIPO, and the goal of any government,
10603 should be to promote the right balance of intellectual property rights,
10604 not simply to promote intellectual property rights</span>»</span>), not as it is. If
10605 we were talking about the world as it is, then of course Boland didn't
10606 say anything wrong. But in the world
10607
10608 as Lessig would have it, then of course she did. Always pay attention
10609 to the distinction between Lessig's world and ours.
10610 </p></blockquote></div><p>
10611 I missed the irony the first time I read it. I read it quickly and
10612 thought the poster was supporting the idea that seeking balance was
10613 what our government should be doing. (Of course, my criticism of Ms.
10614 Boland was not about whether she was seeking balance or not; my
10615 criticism was that her comments betrayed a first-year law student's
10616 mistake. I have no illusion about the extremism of our government,
10617 whether Republican or Democrat. My only illusion apparently is about
10618 whether our government should speak the truth or not.)
10619 </p><a class="indexterm" name="idp10395008"></a><p>
10620 Obviously, however, the poster was not supporting that idea.  Instead,
10621 the poster was ridiculing the very idea that in the real world, the
10622 <span class="quote">«<span class="quote">goal</span>»</span> of a government should be <span class="quote">«<span class="quote">to promote the right balance</span>»</span> of
10623 intellectual property. That was obviously silly to him. And it
10624 obviously betrayed, he believed, my own silly utopianism. <span class="quote">«<span class="quote">Typical for
10625 an academic,</span>»</span> the poster might well have continued.
10626 </p><p>
10627 I understand criticism of academic utopianism. I think utopianism is
10628 silly, too, and I'd be the first to poke fun at the absurdly
10629 unrealistic ideals of academics throughout history (and not just in
10630 our own country's history).
10631 </p><p>
10632 But when it has become silly to suppose that the role of our
10633 government should be to <span class="quote">«<span class="quote">seek balance,</span>»</span> then count me with the silly,
10634 for that means that this has become quite serious indeed. If it should
10635 be obvious to everyone that the government does not seek balance, that
10636 the government is simply the tool of the most powerful lobbyists, that
10637 the idea of holding the government to a different standard is absurd,
10638 that the idea of demanding of the government that it speak truth and
10639 not lies is just naïve, then who have we, the most powerful
10640 democracy in the world, become?
10641 </p><p>
10642 It might be crazy to expect a high government official to speak
10643 the truth. It might be crazy to believe that government policy will be
10644 something more than the handmaiden of the most powerful interests.
10645
10646 It might be crazy to argue that we should preserve a tradition that has
10647 been part of our tradition for most of our history&#8212;free culture.
10648 </p><p>
10649 If this is crazy, then let there be more crazies. Soon.
10650 </p><a class="indexterm" name="idp10402160"></a><a class="indexterm" name="idp10402832"></a><a class="indexterm" name="idp10403536"></a><p>
10651 <span class="strong"><strong>There are moments</strong></span> of hope in this
10652 struggle. And moments that surprise. When the FCC was considering
10653 relaxing ownership rules, which would thereby further increase the
10654 concentration in media ownership, an extraordinary bipartisan
10655 coalition formed to fight this change. For perhaps the first time in
10656 history, interests as diverse as the NRA, the ACLU, Moveon.org,
10657 William Safire, Ted Turner, and CodePink Women for Peace organized to
10658 oppose this change in FCC policy. An astonishing 700,000 letters were
10659 sent to the FCC, demanding more hearings and a different result.
10660 </p><p>
10661 This activism did not stop the FCC, but soon after, a broad coalition
10662 in the Senate voted to reverse the FCC decision. The hostile hearings
10663 leading up to that vote revealed just how powerful this movement had
10664 become. There was no substantial support for the FCC's decision, and
10665 there was broad and sustained support for fighting further
10666 concentration in the media.
10667 </p><p>
10668 But even this movement misses an important piece of the puzzle.
10669 Largeness as such is not bad. Freedom is not threatened just because
10670 some become very rich, or because there are only a handful of big
10671 players.  The poor quality of Big Macs or Quarter Pounders does not
10672 mean that you can't get a good hamburger from somewhere else.
10673 </p><p>
10674 The danger in media concentration comes not from the concentration,
10675 but instead from the feudalism that this concentration, tied to the
10676 change in copyright, produces. It is not just that there are a few
10677 powerful companies that control an ever expanding slice of the
10678 media. It is that this concentration can call upon an equally bloated
10679 range of rights&#8212;property rights of a historically extreme
10680 form&#8212;that makes their bigness bad.
10681 </p><p>
10682 It is therefore significant that so many would rally to demand
10683 competition and increased diversity. Still, if the rally is understood
10684 as being about bigness alone, it is not terribly surprising. We
10685 Americans have a long history of fighting <span class="quote">«<span class="quote">big,</span>»</span> wisely or not. That
10686 we could be motivated to fight <span class="quote">«<span class="quote">big</span>»</span> again is not something new.
10687 </p><p>
10688 It would be something new, and something very important, if an equal
10689 number could be rallied to fight the increasing extremism built within
10690 the idea of <span class="quote">«<span class="quote">intellectual property.</span>»</span> Not because balance is alien to
10691 our tradition; indeed, as I've argued, balance is our tradition. But
10692 because the muscle to think critically about the scope of anything
10693 called <span class="quote">«<span class="quote">property</span>»</span> is not well exercised within this tradition anymore.
10694 </p><p>
10695 If we were Achilles, this would be our heel. This would be the place
10696 of our tragedy.
10697 </p><a class="indexterm" name="idp10412544"></a><p>
10698 <span class="strong"><strong>As I write</strong></span> these final words, the
10699 news is filled with stories about the RIAA lawsuits against almost
10700 three hundred individuals.<a href="#ftn.idp10414448" class="footnote" name="idp10414448"><sup class="footnote">[205]</sup></a>
10701 Eminem has just been sued for <span class="quote">«<span class="quote">sampling</span>»</span> someone else's
10702 music.<a href="#ftn.idp10421760" class="footnote" name="idp10421760"><sup class="footnote">[206]</sup></a>
10703 The story about Bob Dylan <span class="quote">«<span class="quote">stealing</span>»</span> from a Japanese author has just
10704 finished making the rounds.<a href="#ftn.idp10424384" class="footnote" name="idp10424384"><sup class="footnote">[207]</sup></a>
10705 An insider from Hollywood&#8212;who insists he must remain
10706 anonymous&#8212;reports <span class="quote">«<span class="quote">an amazing conversation with these studio
10707 guys. They've got extraordinary [old] content that they'd love to use
10708 but can't because they can't begin to clear the rights. They've got
10709 scores of kids who could do amazing things with the content, but it
10710 would take scores of lawyers to clean it first.</span>»</span> Congressmen are
10711 talking about deputizing computer viruses to bring down computers
10712 thought to violate the law. Universities are threatening expulsion for
10713 kids who use a computer to share content.
10714 </p><a class="indexterm" name="idp10428000"></a><a class="indexterm" name="idp10428784"></a><a class="indexterm" name="idp10429600"></a><a class="indexterm" name="idp10430384"></a><a class="indexterm" name="idp10431200"></a><a class="indexterm" name="idp10432016"></a><a class="indexterm" name="idp10432832"></a><p>
10715 Yet on the other side of the Atlantic, the BBC has just announced
10716 that it will build a <span class="quote">«<span class="quote">Creative Archive,</span>»</span> from which British citizens can
10717 download BBC content, and rip, mix, and burn it.<a href="#ftn.idp10434736" class="footnote" name="idp10434736"><sup class="footnote">[208]</sup></a>
10718 And in Brazil, the culture minister, Gilberto Gil, himself a folk hero
10719 of Brazilian music, has joined with Creative Commons to release
10720 content and free licenses in that Latin American
10721 country.<a href="#ftn.idp10436992" class="footnote" name="idp10436992"><sup class="footnote">[209]</sup></a>
10722
10723 I've told a dark story. The truth is more mixed. A technology has
10724 given us a new freedom. Slowly, some begin to understand that this
10725 freedom need not mean anarchy. We can carry a free culture into the
10726 twenty-first century, without artists losing and without the potential of
10727 digital technology being destroyed. It will take some thought, and
10728 more importantly, it will take some will to transform the RCAs of our
10729 day into the Causbys.
10730 </p><p>
10731 Common sense must revolt. It must act to free culture. Soon, if this
10732 potential is ever to be realized.
10733
10734
10735
10736 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp10208512" class="footnote"><p><a href="#idp10208512" class="para"><sup class="para">[195] </sup></a>
10737  Commission on Intellectual Property Rights, <span class="quote">«<span class="quote">Final Report: Integrating
10738 Intellectual Property Rights and Development Policy</span>»</span> (London, 2002),
10739 available at
10740 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #55</a>. According to a World Health Organization press
10741                 release
10742 issued 9 July 2002, only 230,000 of the 6 million who need drugs in
10743 the developing world receive them&#8212;and half of them are in Brazil.
10744 </p></div><div id="ftn.idp10223088" class="footnote"><p><a href="#idp10223088" class="para"><sup class="para">[196] </sup></a>
10745
10746 See Peter Drahos with John Braithwaite, <em class="citetitle">Information Feudalism: Who
10747 Owns the Knowledge Economy?</em> (New York: The New Press, 2003), 37.
10748 <a class="indexterm" name="idp10224512"></a>
10749 <a class="indexterm" name="idp10225296"></a>
10750 </p></div><div id="ftn.idp9833088" class="footnote"><p><a href="#idp9833088" class="para"><sup class="para">[197] </sup></a>
10751
10752 International Intellectual Property Institute (IIPI), <em class="citetitle">Patent
10753 Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
10754 Africa, a Report Prepared for the World Intellectual Property
10755 Organization</em> (Washington, D.C., 2000), 14, available at
10756 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #56</a>. For a
10757 firsthand account of the struggle over South Africa, see Hearing
10758 Before the Subcommittee on Criminal Justice, Drug Policy, and Human
10759 Resources, House Committee on Government Reform, H. Rep., 1st sess.,
10760 Ser. No. 106-126 (22 July 1999), 150&#8211;57 (statement of James
10761 Love).
10762 </p></div><div id="ftn.idp10230224" class="footnote"><p><a href="#idp10230224" class="para"><sup class="para">[198] </sup></a>
10763
10764 International Intellectual Property Institute (IIPI), <em class="citetitle">Patent
10765 Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
10766 Africa, a Report Prepared for the World Intellectual Property
10767 Organization</em> (Washington, D.C., 2000), 15.  </p></div><div id="ftn.idp10237920" class="footnote"><p><a href="#idp10237920" class="para"><sup class="para">[199] </sup></a>
10768
10769 See Sabin Russell, <span class="quote">«<span class="quote">New Crusade to Lower AIDS Drug Costs: Africa's
10770 Needs at Odds with Firms' Profit Motive,</span>»</span> <em class="citetitle">San Francisco Chronicle</em>, 24
10771 May 1999, A1, available at
10772 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #57</a>
10773 (<span class="quote">«<span class="quote">compulsory licenses and gray markets pose a threat to the entire
10774 system of intellectual property protection</span>»</span>); Robert Weissman, <span class="quote">«<span class="quote">AIDS
10775 and Developing Countries: Democratizing Access to Essential
10776 Medicines,</span>»</span> <em class="citetitle">Foreign Policy in Focus</em> 4:23 (August 1999), available at
10777 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #58</a>
10778 (describing U.S. policy); John A. Harrelson, <span class="quote">«<span class="quote">TRIPS, Pharmaceutical
10779 Patents, and the HIV/AIDS Crisis: Finding the Proper Balance Between
10780 Intellectual Property Rights and Compassion, a Synopsis,</span>»</span> <em class="citetitle">Widener Law
10781 Symposium Journal</em> (Spring 2001): 175.
10782
10783 </p></div><div id="ftn.idp10294896" class="footnote"><p><a href="#idp10294896" class="para"><sup class="para">[200] </sup></a>
10784  Jonathan Krim, <span class="quote">«<span class="quote">The Quiet War over Open-Source,</span>»</span> <em class="citetitle">Washington Post</em>,
10785 August 2003, E1, available at
10786 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #59</a>; William New, <span class="quote">«<span class="quote">Global Group's
10787 Shift on `Open Source' Meeting Spurs Stir,</span>»</span> <em class="citetitle">National Journal's Technology
10788 Daily</em>, 19 August 2003, available at
10789 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #60</a>; William New, <span class="quote">«<span class="quote">U.S. Official
10790 Opposes `Open Source' Talks at WIPO,</span>»</span> <em class="citetitle">National Journal's Technology
10791 Daily</em>, 19 August 2003, available at
10792 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #61</a>.
10793 </p></div><div id="ftn.idp10308432" class="footnote"><p><a href="#idp10308432" class="para"><sup class="para">[201] </sup></a>
10794  I should disclose that I was one of the people who asked WIPO for the
10795 meeting.
10796 </p></div><div id="ftn.idp10331424" class="footnote"><p><a href="#idp10331424" class="para"><sup class="para">[202] </sup></a>
10797
10798 Microsoft's position about free and open source software is more
10799 sophisticated.  As it has repeatedly asserted, it has no problem with
10800 <span class="quote">«<span class="quote">open source</span>»</span> software or software in the public domain. Microsoft's
10801 principal opposition is to <span class="quote">«<span class="quote">free software</span>»</span> licensed under a <span class="quote">«<span class="quote">copyleft</span>»</span>
10802 license, meaning a license that requires the licensee to adopt the
10803 same terms on any derivative work. See Bradford L. Smith, <span class="quote">«<span class="quote">The Future
10804 of Software: Enabling the Marketplace to Decide,</span>»</span> <em class="citetitle">Government Policy
10805 Toward Open Source Software</em> (Washington, D.C.: AEI-Brookings Joint
10806 Center for Regulatory Studies, American Enterprise Institute for
10807 Public Policy Research, 2002), 69, available at
10808 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #62</a>. See also
10809 Craig Mundie, Microsoft senior vice president, <em class="citetitle">The Commercial Software
10810 Model</em>, discussion at New York University Stern School of Business (3
10811 May 2001), available at
10812 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #63</a>.
10813 </p></div><div id="ftn.idp10350096" class="footnote"><p><a href="#idp10350096" class="para"><sup class="para">[203] </sup></a>
10814
10815 Krim, <span class="quote">«<span class="quote">The Quiet War over Open-Source,</span>»</span> available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #64</a>.
10816 </p></div><div id="ftn.idp10382560" class="footnote"><p><a href="#idp10382560" class="para"><sup class="para">[204] </sup></a>
10817
10818 See Drahos with Braithwaite, <em class="citetitle">Information Feudalism</em>, 210&#8211;20.
10819 <a class="indexterm" name="idp10230352"></a>
10820 </p></div><div id="ftn.idp10414448" class="footnote"><p><a href="#idp10414448" class="para"><sup class="para">[205] </sup></a>
10821
10822 John Borland, <span class="quote">«<span class="quote">RIAA Sues 261 File Swappers,</span>»</span> CNET News.com, September
10823 2003, available at
10824 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #65</a>; Paul
10825 R. La Monica, <span class="quote">«<span class="quote">Music Industry Sues Swappers,</span>»</span> CNN/Money, 8 September
10826 2003, available at
10827 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #66</a>; Soni
10828 Sangha and Phyllis Furman with Robert Gearty, <span class="quote">«<span class="quote">Sued for a Song,
10829 N.Y.C. 12-Yr-Old Among 261 Cited as Sharers,</span>»</span> <em class="citetitle">New York Daily News</em>, 9
10830 September 2003, 3; Frank Ahrens, <span class="quote">«<span class="quote">RIAA's Lawsuits Meet Surprised
10831 Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among
10832 Defendants,</span>»</span> <em class="citetitle">Washington Post</em>, 10 September 2003, E1; Katie Dean,
10833 <span class="quote">«<span class="quote">Schoolgirl Settles with RIAA,</span>»</span> <em class="citetitle">Wired News</em>, 10 September 2003,
10834 available at
10835 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #67</a>.
10836 </p></div><div id="ftn.idp10421760" class="footnote"><p><a href="#idp10421760" class="para"><sup class="para">[206] </sup></a>
10837
10838 Jon Wiederhorn, <span class="quote">«<span class="quote">Eminem Gets Sued &#8230; by a Little Old Lady,</span>»</span>
10839 mtv.com, 17 September 2003, available at
10840 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #68</a>.
10841 </p></div><div id="ftn.idp10424384" class="footnote"><p><a href="#idp10424384" class="para"><sup class="para">[207] </sup></a>
10842
10843 Kenji Hall, Associated Press, <span class="quote">«<span class="quote">Japanese Book May Be Inspiration for
10844 Dylan Songs,</span>»</span> Kansascity.com, 9 July 2003, available at
10845 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #69</a>.
10846
10847 </p></div><div id="ftn.idp10434736" class="footnote"><p><a href="#idp10434736" class="para"><sup class="para">[208] </sup></a>
10848  <span class="quote">«<span class="quote">BBC Plans to Open Up Its Archive to the Public,</span>»</span> BBC press release,
10849 24 August 2003, available at
10850 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #70</a>.
10851 </p></div><div id="ftn.idp10436992" class="footnote"><p><a href="#idp10436992" class="para"><sup class="para">[209] </sup></a>
10852
10853 <span class="quote">«<span class="quote">Creative Commons and Brazil,</span>»</span> Creative Commons Weblog, 6 August 2003,
10854 available at
10855 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #71</a>.
10856 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-afterword"></a>Chapter . Afterword</h1></div></div></div><p>
10857
10858
10859 <span class="strong"><strong>At least some</strong></span> who have read this
10860 far will agree with me that something must be done to change where we
10861 are heading. The balance of this book maps what might be done.
10862 </p><p>
10863 I divide this map into two parts: that which anyone can do now,
10864 and that which requires the help of lawmakers. If there is one lesson
10865 that we can draw from the history of remaking common sense, it is that
10866 it requires remaking how many people think about the very same issue.
10867 </p><p>
10868 That means this movement must begin in the streets. It must recruit a
10869 significant number of parents, teachers, librarians, creators,
10870 authors, musicians, filmmakers, scientists&#8212;all to tell this
10871 story in their own words, and to tell their neighbors why this battle
10872 is so important.
10873 </p><p>
10874 Once this movement has its effect in the streets, it has some hope of
10875 having an effect in Washington. We are still a democracy. What people
10876 think matters. Not as much as it should, at least when an RCA stands
10877 opposed, but still, it matters. And thus, in the second part below, I
10878 sketch changes that Congress could make to better secure a free culture.
10879 </p><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="usnow"></a>1. Us, now</h2></div></div></div><p>
10880 <span class="strong"><strong>Common sense</strong></span> is with the copyright
10881 warriors because the debate so far has been framed at the
10882 extremes&#8212;as a grand either/or: either property or anarchy,
10883 either total control or artists won't be paid. If that really is the
10884 choice, then the warriors should win.
10885 </p><p>
10886 The mistake here is the error of the excluded middle. There are
10887 extremes in this debate, but the extremes are not all that there
10888 is. There are those who believe in maximal copyright&#8212;<span class="quote">«<span class="quote">All Rights
10889 Reserved</span>»</span>&#8212; and those who reject copyright&#8212;<span class="quote">«<span class="quote">No Rights
10890 Reserved.</span>»</span> The <span class="quote">«<span class="quote">All Rights Reserved</span>»</span> sorts believe that you should ask
10891 permission before you <span class="quote">«<span class="quote">use</span>»</span> a copyrighted work in any way. The <span class="quote">«<span class="quote">No
10892 Rights Reserved</span>»</span> sorts believe you should be able to do with content
10893 as you wish, regardless of whether you have permission or not.
10894 </p><a class="indexterm" name="idxinternetdevelopmentof2"></a><a class="indexterm" name="idxinternetinitialfreecharacterof"></a><p>
10895 When the Internet was first born, its initial architecture effectively
10896 tilted in the <span class="quote">«<span class="quote">no rights reserved</span>»</span> direction. Content could be copied
10897 perfectly and cheaply; rights could not easily be controlled. Thus,
10898 regardless of anyone's desire, the effective regime of copyright under
10899 the
10900
10901
10902 original design of the Internet was <span class="quote">«<span class="quote">no rights reserved.</span>»</span> Content was
10903 <span class="quote">«<span class="quote">taken</span>»</span> regardless of the rights. Any rights were effectively
10904 unprotected.
10905 </p><p>
10906 This initial character produced a reaction (opposite, but not quite
10907 equal) by copyright owners. That reaction has been the topic of this
10908 book. Through legislation, litigation, and changes to the network's
10909 design, copyright holders have been able to change the essential
10910 character of the environment of the original Internet. If the original
10911 architecture made the effective default <span class="quote">«<span class="quote">no rights reserved,</span>»</span> the
10912 future architecture will make the effective default <span class="quote">«<span class="quote">all rights
10913 reserved.</span>»</span> The architecture and law that surround the Internet's
10914 design will increasingly produce an environment where all use of
10915 content requires permission.  The <span class="quote">«<span class="quote">cut and paste</span>»</span> world that defines
10916 the Internet today will become a <span class="quote">«<span class="quote">get permission to cut and paste</span>»</span>
10917 world that is a creator's nightmare.
10918 </p><a class="indexterm" name="idp10460560"></a><a class="indexterm" name="idp10461952"></a><p>
10919 What's needed is a way to say something in the middle&#8212;neither
10920 <span class="quote">«<span class="quote">all rights reserved</span>»</span> nor <span class="quote">«<span class="quote">no rights reserved</span>»</span> but <span class="quote">«<span class="quote">some rights
10921 reserved</span>»</span>&#8212; and thus a way to respect copyrights but enable
10922 creators to free content as they see fit. In other words, we need a
10923 way to restore a set of freedoms that we could just take for granted
10924 before.
10925 </p><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="examples"></a>1.1. Rebuilding Freedoms Previously Presumed: Examples</h3></div></div></div><a class="indexterm" name="idxfreeculturerestorationeffortsonpreviousaspectsof"></a><a class="indexterm" name="idxbrowsing"></a><a class="indexterm" name="idxprivacyrights2"></a><p>
10926 If you step back from the battle I've been describing here, you will
10927 recognize this problem from other contexts. Think about
10928 privacy. Before the Internet, most of us didn't have to worry much
10929 about data about our lives that we broadcast to the world. If you
10930 walked into a bookstore and browsed through some of the works of Karl
10931 Marx, you didn't need to worry about explaining your browsing habits
10932 to your neighbors or boss. The <span class="quote">«<span class="quote">privacy</span>»</span> of your browsing habits was
10933 assured.
10934 </p><p>
10935 What made it assured?
10936 </p><p>
10937 Well, if we think in terms of the modalities I described in chapter
10938 <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>, your
10939 privacy was assured because of an inefficient architecture for
10940 gathering data and hence a market constraint (cost) on anyone who
10941 wanted to gather that data. If you were a suspected spy for North
10942 Korea, working for the CIA, no doubt your privacy would not be
10943 assured.  But that's because the CIA would (we hope) find it valuable
10944 enough to spend the thousands required to track you. But for most of
10945 us (again, we can hope), spying doesn't pay. The highly inefficient
10946 architecture of real space means we all enjoy a fairly robust amount
10947 of privacy. That privacy is guaranteed to us by friction. Not by law
10948 (there is no law protecting <span class="quote">«<span class="quote">privacy</span>»</span> in public places), and in many
10949 places, not by norms (snooping and gossip are just fun), but instead,
10950 by the costs that friction imposes on anyone who would want to spy.
10951 </p><a class="indexterm" name="idxamazon"></a><a class="indexterm" name="idp10477584"></a><a class="indexterm" name="idxinternetprivacyprotectionon"></a><p>
10952 Enter the Internet, where the cost of tracking browsing in particular
10953 has become quite tiny. If you're a customer at Amazon, then as you
10954 browse the pages, Amazon collects the data about what you've looked
10955 at. You know this because at the side of the page, there's a list of
10956 <span class="quote">«<span class="quote">recently viewed</span>»</span> pages. Now, because of the architecture of the Net
10957 and the function of cookies on the Net, it is easier to collect the
10958 data than not. The friction has disappeared, and hence any <span class="quote">«<span class="quote">privacy</span>»</span>
10959 protected by the friction disappears, too.
10960 </p><a class="indexterm" name="idp10482048"></a><p>
10961 Amazon, of course, is not the problem. But we might begin to worry
10962 about libraries. If you're one of those crazy lefties who thinks that
10963 people should have the <span class="quote">«<span class="quote">right</span>»</span> to browse in a library without the
10964 government knowing which books you look at (I'm one of those lefties,
10965 too), then this change in the technology of monitoring might concern
10966 you. If it becomes simple to gather and sort who does what in
10967 electronic spaces, then the friction-induced privacy of yesterday
10968 disappears.
10969 </p><a class="indexterm" name="idp10484432"></a><a class="indexterm" name="idp10485744"></a><p>
10970 It is this reality that explains the push of many to define <span class="quote">«<span class="quote">privacy</span>»</span>
10971 on the Internet. It is the recognition that technology can remove what
10972 friction before gave us that leads many to push for laws to do what
10973 friction did.<a href="#ftn.idp10487984" class="footnote" name="idp10487984"><sup class="footnote">[210]</sup></a>
10974 And whether you're in favor of those laws or not, it is the pattern
10975 that is important here. We must take affirmative steps to secure a
10976
10977
10978 kind of freedom that was passively provided before. A change in
10979 technology now forces those who believe in privacy to affirmatively
10980 act where, before, privacy was given by default.
10981 </p><a class="indexterm" name="idp10492000"></a><a class="indexterm" name="idp10493216"></a><a class="indexterm" name="idp10494608"></a><a class="indexterm" name="idp10495424"></a><a class="indexterm" name="idxfreesoftwareopensourcesoftwarefsoss2"></a><p>
10982 A similar story could be told about the birth of the free software
10983 movement. When computers with software were first made available
10984 commercially, the software&#8212;both the source code and the
10985 binaries&#8212; was free. You couldn't run a program written for a
10986 Data General machine on an IBM machine, so Data General and IBM didn't
10987 care much about controlling their software.
10988 </p><a class="indexterm" name="idxstallmanrichard"></a><p>
10989 That was the world Richard Stallman was born into, and while he was a
10990 researcher at MIT, he grew to love the community that developed when
10991 one was free to explore and tinker with the software that ran on
10992 machines. Being a smart sort himself, and a talented programmer,
10993 Stallman grew to depend upon the freedom to add to or modify other
10994 people's work.
10995 </p><p>
10996 In an academic setting, at least, that's not a terribly radical
10997 idea. In a math department, anyone would be free to tinker with a
10998 proof that someone offered. If you thought you had a better way to
10999 prove a theorem, you could take what someone else did and change
11000 it. In a classics department, if you believed a colleague's
11001 translation of a recently discovered text was flawed, you were free to
11002 improve it. Thus, to Stallman, it seemed obvious that you should be
11003 free to tinker with and improve the code that ran a machine. This,
11004 too, was knowledge. Why shouldn't it be open for criticism like
11005 anything else?
11006 </p><a class="indexterm" name="idxproprietarycode"></a><p>
11007 No one answered that question. Instead, the architecture of revenue
11008 for computing changed. As it became possible to import programs from
11009 one system to another, it became economically attractive (at least in
11010 the view of some) to hide the code of your program. So, too, as
11011 companies started selling peripherals for mainframe systems. If I
11012 could just take your printer driver and copy it, then that would make
11013 it easier for me to sell a printer to the market than it was for you.
11014 </p><p>
11015 Thus, the practice of proprietary code began to spread, and by the
11016 early 1980s, Stallman found himself surrounded by proprietary code.
11017
11018 The world of free software had been erased by a change in the
11019 economics of computing. And as he believed, if he did nothing about
11020 it, then the freedom to change and share software would be
11021 fundamentally weakened.
11022 </p><a class="indexterm" name="idp10505312"></a><a class="indexterm" name="idp10506544"></a><p>
11023 Therefore, in 1984, Stallman began a project to build a free operating
11024 system, so that at least a strain of free software would survive. That
11025 was the birth of the GNU project, into which Linus Torvalds's <span class="quote">«<span class="quote">Linux</span>»</span>
11026 kernel was added to produce the GNU/Linux operating system.
11027 <a class="indexterm" name="idp10508336"></a>
11028 <a class="indexterm" name="idp10509168"></a>
11029 </p><p>
11030 Stallman's technique was to use copyright law to build a world of
11031 software that must be kept free. Software licensed under the Free
11032 Software Foundation's GPL cannot be modified and distributed unless
11033 the source code for that software is made available as well. Thus,
11034 anyone building upon GPL'd software would have to make their buildings
11035 free as well. This would assure, Stallman believed, that an ecology of
11036 code would develop that remained free for others to build upon. His
11037 fundamental goal was freedom; innovative creative code was a
11038 byproduct.
11039 </p><p>
11040 Stallman was thus doing for software what privacy advocates now
11041 do for privacy. He was seeking a way to rebuild a kind of freedom that
11042 was taken for granted before. Through the affirmative use of licenses
11043 that bind copyrighted code, Stallman was affirmatively reclaiming a
11044 space where free software would survive. He was actively protecting
11045 what before had been passively guaranteed.
11046 </p><a class="indexterm" name="idp10511840"></a><a class="indexterm" name="idp10513232"></a><a class="indexterm" name="idxacademicjournals"></a><a class="indexterm" name="idxscientificjournals"></a><p>
11047 Finally, consider a very recent example that more directly resonates
11048 with the story of this book. This is the shift in the way academic and
11049 scientific journals are produced.
11050 </p><a class="indexterm" name="idxlexisandwestlaw"></a><a class="indexterm" name="idxlawdatabasesofcasereportsin"></a><a class="indexterm" name="idp10521424"></a><a class="indexterm" name="idp10522528"></a><p>
11051 As digital technologies develop, it is becoming obvious to many that
11052 printing thousands of copies of journals every month and sending them
11053 to libraries is perhaps not the most efficient way to distribute
11054 knowledge. Instead, journals are increasingly becoming electronic, and
11055 libraries and their users are given access to these electronic
11056 journals through password-protected sites. Something similar to this
11057 has been happening in law for almost thirty years: Lexis and Westlaw
11058 have had electronic versions of case reports available to subscribers
11059 to their service.  Although a Supreme Court opinion is not
11060 copyrighted, and anyone is free to go to a library and read it, Lexis
11061 and Westlaw are also free
11062
11063 to charge users for the privilege of gaining access to that Supreme
11064 Court opinion through their respective services.
11065 </p><a class="indexterm" name="idp10525184"></a><a class="indexterm" name="idxpublicdomainlicensesystemforrebuildingof"></a><p>
11066 There's nothing wrong in general with this, and indeed, the ability to
11067 charge for access to even public domain materials is a good incentive
11068 for people to develop new and innovative ways to spread knowledge.
11069 The law has agreed, which is why Lexis and Westlaw have been allowed
11070 to flourish. And if there's nothing wrong with selling the public
11071 domain, then there could be nothing wrong, in principle, with selling
11072 access to material that is not in the public domain.
11073 </p><a class="indexterm" name="idp10529136"></a><a class="indexterm" name="idp10530384"></a><p>
11074 But what if the only way to get access to social and scientific data
11075 was through proprietary services? What if no one had the ability to
11076 browse this data except by paying for a subscription?
11077 </p><a class="indexterm" name="idxlibrariesjournalsin"></a><p>
11078 As many are beginning to notice, this is increasingly the reality with
11079 scientific journals. When these journals were distributed in paper
11080 form, libraries could make the journals available to anyone who had
11081 access to the library. Thus, patients with cancer could become cancer
11082 experts because the library gave them access. Or patients trying to
11083 understand the risks of a certain treatment could research those risks
11084 by reading all available articles about that treatment. This freedom
11085 was therefore a function of the institution of libraries (norms) and
11086 the technology of paper journals (architecture)&#8212;namely, that it
11087 was very hard to control access to a paper journal.
11088 </p><p>
11089 As journals become electronic, however, the publishers are demanding
11090 that libraries not give the general public access to the
11091 journals. This means that the freedoms provided by print journals in
11092 public libraries begin to disappear. Thus, as with privacy and with
11093 software, a changing technology and market shrink a freedom taken for
11094 granted before.
11095 </p><a class="indexterm" name="idp10536032"></a><a class="indexterm" name="idp10536832"></a><p>
11096 This shrinking freedom has led many to take affirmative steps to
11097 restore the freedom that has been lost. The Public Library of Science
11098 (PLoS), for example, is a nonprofit corporation dedicated to making
11099 scientific research available to anyone with a Web connection. Authors
11100
11101 of scientific work submit that work to the Public Library of Science.
11102 That work is then subject to peer review. If accepted, the work is
11103 then deposited in a public, electronic archive and made permanently
11104 available for free. PLoS also sells a print version of its work, but
11105 the copyright for the print journal does not inhibit the right of
11106 anyone to redistribute the work for free.
11107 </p><a class="indexterm" name="idp10539056"></a><p>
11108 This is one of many such efforts to restore a freedom taken for
11109 granted before, but now threatened by changing technology and markets.
11110 There's no doubt that this alternative competes with the traditional
11111 publishers and their efforts to make money from the exclusive
11112 distribution of content. But competition in our tradition is
11113 presumptively a good&#8212;especially when it helps spread knowledge
11114 and science.
11115 </p><a class="indexterm" name="idp10540592"></a><a class="indexterm" name="idp10542576"></a><a class="indexterm" name="idp10543824"></a></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="oneidea"></a>1.2. Rebuilding Free Culture: One Idea</h3></div></div></div><a class="indexterm" name="idxcreativecommons"></a><p>
11116 The same strategy could be applied to culture, as a response to the
11117 increasing control effected through law and technology.
11118 </p><a class="indexterm" name="idp10548416"></a><p>
11119 Enter the Creative Commons. The Creative Commons is a nonprofit
11120 corporation established in Massachusetts, but with its home at
11121 Stanford University. Its aim is to build a layer of
11122 <span class="emphasis"><em>reasonable</em></span> copyright on top of the extremes that
11123 now reign. It does this by making it easy for people to build upon
11124 other people's work, by making it simple for creators to express the
11125 freedom for others to take and build upon their work. Simple tags,
11126 tied to human-readable descriptions, tied to bulletproof licenses,
11127 make this possible.
11128 </p><p>
11129 <span class="emphasis"><em>Simple</em></span>&#8212;which means without a middleman, or
11130 without a lawyer.  By developing a free set of licenses that people
11131 can attach to their content, Creative Commons aims to mark a range of
11132 content that can easily, and reliably, be built upon. These tags are
11133 then linked to machine-readable versions of the license that enable
11134 computers automatically to identify content that can easily be
11135 shared. These three expressions together&#8212;a legal license, a
11136 human-readable description, and
11137
11138 machine-readable tags&#8212;constitute a Creative Commons license. A
11139 Creative Commons license constitutes a grant of freedom to anyone who
11140 accesses the license, and more importantly, an expression of the ideal
11141 that the person associated with the license believes in something
11142 different than the <span class="quote">«<span class="quote">All</span>»</span> or <span class="quote">«<span class="quote">No</span>»</span> extremes. Content is marked with the
11143 CC mark, which does not mean that copyright is waived, but that
11144 certain freedoms are given.
11145 </p><p>
11146 These freedoms are beyond the freedoms promised by fair use. Their
11147 precise contours depend upon the choices the creator makes. The
11148 creator can choose a license that permits any use, so long as
11149 attribution is given. She can choose a license that permits only
11150 noncommercial use.  She can choose a license that permits any use so
11151 long as the same freedoms are given to other uses (<span class="quote">«<span class="quote">share and share
11152 alike</span>»</span>). Or any use so long as no derivative use is made. Or any use
11153 at all within developing nations. Or any sampling use, so long as full
11154 copies are not made. Or lastly, any educational use.
11155 </p><p>
11156 These choices thus establish a range of freedoms beyond the default of
11157 copyright law. They also enable freedoms that go beyond traditional
11158 fair use. And most importantly, they express these freedoms in a way
11159 that subsequent users can use and rely upon without the need to hire a
11160 lawyer. Creative Commons thus aims to build a layer of content,
11161 governed by a layer of reasonable copyright law, that others can build
11162 upon. Voluntary choice of individuals and creators will make this
11163 content available. And that content will in turn enable us to rebuild
11164 a public domain.
11165 </p><a class="indexterm" name="idp10555888"></a><p>
11166 This is just one project among many within the Creative Commons.  And
11167 of course, Creative Commons is not the only organization pursuing such
11168 freedoms. But the point that distinguishes the Creative Commons from
11169 many is that we are not interested only in talking about a public
11170 domain or in getting legislators to help build a public domain. Our
11171 aim is to build a movement of consumers and producers
11172
11173 of content (<span class="quote">«<span class="quote">content conducers,</span>»</span> as attorney Mia Garlick calls them)
11174 who help build the public domain and, by their work, demonstrate the
11175 importance of the public domain to other creativity.
11176 </p><a class="indexterm" name="idp10558352"></a><p>
11177 The aim is not to fight the <span class="quote">«<span class="quote">All Rights Reserved</span>»</span> sorts. The aim is to
11178 complement them. The problems that the law creates for us as a culture
11179 are produced by insane and unintended consequences of laws written
11180 centuries ago, applied to a technology that only Jefferson could have
11181 imagined. The rules may well have made sense against a background of
11182 technologies from centuries ago, but they do not make sense against
11183 the background of digital technologies. New rules&#8212;with different
11184 freedoms, expressed in ways so that humans without lawyers can use
11185 them&#8212;are needed. Creative Commons gives people a way effectively
11186 to begin to build those rules.
11187 </p><a class="indexterm" name="idxbooksfreeonline2"></a><p>
11188 Why would creators participate in giving up total control? Some
11189 participate to better spread their content. Cory Doctorow, for
11190 example, is a science fiction author. His first novel, <em class="citetitle">Down and Out in
11191 the Magic Kingdom</em>, was released on-line and for free, under a Creative
11192 Commons license, on the same day that it went on sale in bookstores.
11193 </p><p>
11194 Why would a publisher ever agree to this? I suspect his publisher
11195 reasoned like this: There are two groups of people out there: (1)
11196 those who will buy Cory's book whether or not it's on the Internet,
11197 and (2) those who may never hear of Cory's book, if it isn't made
11198 available for free on the Internet. Some part of (1) will download
11199 Cory's book instead of buying it. Call them bad-(1)s. Some part of (2)
11200 will download Cory's book, like it, and then decide to buy it. Call
11201 them (2)-goods.  If there are more (2)-goods than bad-(1)s, the
11202 strategy of releasing Cory's book free on-line will probably
11203 <span class="emphasis"><em>increase</em></span> sales of Cory's book.
11204 </p><p>
11205 Indeed, the experience of his publisher clearly supports that
11206 conclusion.  The book's first printing was exhausted months before the
11207 publisher had expected. This first novel of a science fiction author
11208 was a total success.
11209 </p><a class="indexterm" name="idp10565664"></a><a class="indexterm" name="idp10566480"></a><p>
11210 The idea that free content might increase the value of nonfree content
11211 was confirmed by the experience of another author. Peter Wayner,
11212
11213 who wrote a book about the free software movement titled <em class="citetitle">Free for All</em>,
11214 made an electronic version of his book free on-line under a Creative
11215 Commons license after the book went out of print. He then monitored
11216 used book store prices for the book. As predicted, as the number of
11217 downloads increased, the used book price for his book increased, as
11218 well.
11219 </p><a class="indexterm" name="idp10568928"></a><a class="indexterm" name="idp10570240"></a><a class="indexterm" name="idp10571056"></a><a class="indexterm" name="idp10571872"></a><p>
11220 These are examples of using the Commons to better spread proprietary
11221 content. I believe that is a wonderful and common use of the
11222 Commons. There are others who use Creative Commons licenses for other
11223 reasons. Many who use the <span class="quote">«<span class="quote">sampling license</span>»</span> do so because anything
11224 else would be hypocritical. The sampling license says that others are
11225 free, for commercial or noncommercial purposes, to sample content from
11226 the licensed work; they are just not free to make full copies of the
11227 licensed work available to others. This is consistent with their own
11228 art&#8212;they, too, sample from others. Because the
11229 <span class="emphasis"><em>legal</em></span> costs of sampling are so high (Walter
11230 Leaphart, manager of the rap group Public Enemy, which was born
11231 sampling the music of others, has stated that he does not <span class="quote">«<span class="quote">allow</span>»</span>
11232 Public Enemy to sample anymore, because the legal costs are so
11233 high<a href="#ftn.idp10575088" class="footnote" name="idp10575088"><sup class="footnote">[211]</sup></a>),
11234 these artists release into the creative environment content
11235 that others can build upon, so that their form of creativity might grow.
11236 </p><p>
11237 Finally, there are many who mark their content with a Creative Commons
11238 license just because they want to express to others the importance of
11239 balance in this debate. If you just go along with the system as it is,
11240 you are effectively saying you believe in the <span class="quote">«<span class="quote">All Rights Reserved</span>»</span>
11241 model. Good for you, but many do not. Many believe that however
11242 appropriate that rule is for Hollywood and freaks, it is not an
11243 appropriate description of how most creators view the rights
11244 associated with their content. The Creative Commons license expresses
11245 this notion of <span class="quote">«<span class="quote">Some Rights Reserved,</span>»</span> and gives many the chance to
11246 say it to others.
11247 </p><p>
11248 In the first six months of the Creative Commons experiment, over
11249 1 million objects were licensed with these free-culture licenses. The next
11250 step is partnerships with middleware content providers to help them
11251 build into their technologies simple ways for users to mark their content
11252
11253
11254 with Creative Commons freedoms. Then the next step is to watch and
11255 celebrate creators who build content based upon content set free.
11256 </p><p>
11257 These are first steps to rebuilding a public domain. They are not
11258 mere arguments; they are action. Building a public domain is the first
11259 step to showing people how important that domain is to creativity and
11260 innovation. Creative Commons relies upon voluntary steps to achieve
11261 this rebuilding. They will lead to a world in which more than voluntary
11262 steps are possible.
11263 </p><p>
11264 Creative Commons is just one example of voluntary efforts by
11265 individuals and creators to change the mix of rights that now govern
11266 the creative field. The project does not compete with copyright; it
11267 complements it. Its aim is not to defeat the rights of authors, but to
11268 make it easier for authors and creators to exercise their rights more
11269 flexibly and cheaply. That difference, we believe, will enable
11270 creativity to spread more easily.
11271 </p><a class="indexterm" name="idp10582064"></a><a class="indexterm" name="idp10583472"></a></div></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="themsoon"></a>2. Them, soon</h2></div></div></div><p>
11272 <span class="strong"><strong>We will</strong></span> not reclaim a free culture
11273 by individual action alone. It will also take important reforms of
11274 laws. We have a long way to go before the politicians will listen to
11275 these ideas and implement these reforms.  But that also means that we
11276 have time to build awareness around the changes that we need.
11277 </p><p>
11278 In this chapter, I outline five kinds of changes: four that are general,
11279 and one that's specific to the most heated battle of the day, music. Each
11280 is a step, not an end. But any of these steps would carry us a long way
11281 to our end.
11282 </p><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="formalities"></a>2.1. 1. More Formalities</h3></div></div></div><p>
11283 If you buy a house, you have to record the sale in a deed. If you buy land
11284 upon which to build a house, you have to record the purchase in a deed.
11285 If you buy a car, you get a bill of sale and register the car. If you buy an
11286 airplane ticket, it has your name on it.
11287 </p><p>
11288
11289 These are all formalities associated with property. They are
11290 requirements that we all must bear if we want our property to be
11291 protected.
11292 </p><p>
11293 In contrast, under current copyright law, you automatically get a
11294 copyright, regardless of whether you comply with any formality. You
11295 don't have to register. You don't even have to mark your content. The
11296 default is control, and <span class="quote">«<span class="quote">formalities</span>»</span> are banished.
11297 </p><p>
11298 Why?
11299 </p><p>
11300 As I suggested in chapter <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>, the motivation to abolish formalities was a
11301 good one. In the world before digital technologies, formalities
11302 imposed a burden on copyright holders without much benefit. Thus, it
11303 was progress when the law relaxed the formal requirements that a
11304 copyright owner must bear to protect and secure his work. Those
11305 formalities were getting in the way.
11306 </p><p>
11307 But the Internet changes all this. Formalities today need not be a
11308 burden. Rather, the world without formalities is the world that
11309 burdens creativity. Today, there is no simple way to know who owns
11310 what, or with whom one must deal in order to use or build upon the
11311 creative work of others. There are no records, there is no system to
11312 trace&#8212; there is no simple way to know how to get permission. Yet
11313 given the massive increase in the scope of copyright's rule, getting
11314 permission is a necessary step for any work that builds upon our
11315 past. And thus, the <span class="emphasis"><em>lack</em></span> of formalities forces
11316 many into silence where they otherwise could speak.
11317 </p><p>
11318 The law should therefore change this requirement<a href="#ftn.idp10596160" class="footnote" name="idp10596160"><sup class="footnote">[212]</sup></a>&#8212;but it
11319 should not change it by going back to the old, broken system. We
11320 should require formalities, but we should establish a system that will
11321 create the incentives to minimize the burden of these formalities.
11322 </p><p>
11323 The important formalities are three: marking copyrighted work,
11324 registering copyrights, and renewing the claim to
11325 copyright. Traditionally, the first of these three was something the
11326 copyright owner did; the second two were something the government
11327 did. But a revised system of formalities would banish the government
11328 from the process, except for the sole purpose of approving standards
11329 developed by others.
11330 </p><div class="section"><div class="titlepage"><div><div><h4 class="title"><a name="registration"></a>2.1.1. Registration and renewal</h4></div></div></div><p>
11331 Under the old system, a copyright owner had to file a registration
11332 with the Copyright Office to register or renew a copyright. When
11333 filing that registration, the copyright owner paid a fee. As with most
11334 government agencies, the Copyright Office had little incentive to
11335 minimize the burden of registration; it also had little incentive to
11336 minimize the fee.  And as the Copyright Office is not a main target of
11337 government policymaking, the office has historically been terribly
11338 underfunded. Thus, when people who know something about the process
11339 hear this idea about formalities, their first reaction is
11340 panic&#8212;nothing could be worse than forcing people to deal with
11341 the mess that is the Copyright Office.
11342 </p><p>
11343 Yet it is always astonishing to me that we, who come from a tradition
11344 of extraordinary innovation in governmental design, can no longer
11345 think innovatively about how governmental functions can be designed.
11346 Just because there is a public purpose to a government role, it
11347 doesn't follow that the government must actually administer the
11348 role. Instead, we should be creating incentives for private parties to
11349 serve the public, subject to standards that the government sets.
11350 </p><p>
11351 In the context of registration, one obvious model is the Internet.
11352 There are at least 32 million Web sites registered around the world.
11353 Domain name owners for these Web sites have to pay a fee to keep their
11354 registration alive. In the main top-level domains (.com, .org, .net),
11355 there is a central registry. The actual registrations are, however,
11356 performed by many competing registrars. That competition drives the
11357 cost of registering down, and more importantly, it drives the ease
11358 with which registration occurs up.
11359 </p><p>
11360 We should adopt a similar model for the registration and renewal of
11361 copyrights. The Copyright Office may well serve as the central
11362 registry, but it should not be in the registrar business. Instead, it
11363 should establish a database, and a set of standards for registrars. It
11364 should approve registrars that meet its standards. Those registrars
11365 would then compete with one another to deliver the cheapest and
11366 simplest systems for registering and renewing copyrights. That
11367 competition would substantially lower the burden of this
11368 formality&#8212;while producing a database
11369
11370 of registrations that would facilitate the licensing of content.
11371 </p></div><div class="section"><div class="titlepage"><div><div><h4 class="title"><a name="marking"></a>2.1.2. Marking</h4></div></div></div><p>
11372 It used to be that the failure to include a copyright notice on a
11373 creative work meant that the copyright was forfeited. That was a harsh
11374 punishment for failing to comply with a regulatory rule&#8212;akin to
11375 imposing the death penalty for a parking ticket in the world of
11376 creative rights.  Here again, there is no reason that a marking
11377 requirement needs to be enforced in this way. And more importantly,
11378 there is no reason a marking requirement needs to be enforced
11379 uniformly across all media.
11380 </p><p>
11381 The aim of marking is to signal to the public that this work is
11382 copyrighted and that the author wants to enforce his rights. The mark
11383 also makes it easy to locate a copyright owner to secure permission to
11384 use the work.
11385 </p><p>
11386 One of the problems the copyright system confronted early on was
11387 that different copyrighted works had to be differently marked. It wasn't
11388 clear how or where a statue was to be marked, or a record, or a film. A
11389 new marking requirement could solve these problems by recognizing
11390 the differences in media, and by allowing the system of marking to
11391 evolve as technologies enable it to. The system could enable a special
11392 signal from the failure to mark&#8212;not the loss of the copyright, but the
11393 loss of the right to punish someone for failing to get permission first.
11394 </p><p>
11395 Let's start with the last point. If a copyright owner allows his work
11396 to be published without a copyright notice, the consequence of that
11397 failure need not be that the copyright is lost. The consequence could
11398 instead be that anyone has the right to use this work, until the
11399 copyright owner complains and demonstrates that it is his work and he
11400 doesn't give permission.<a href="#ftn.idp10607472" class="footnote" name="idp10607472"><sup class="footnote">[213]</sup></a>
11401 The meaning of an unmarked work would therefore be <span class="quote">«<span class="quote">use unless someone
11402 complains.</span>»</span> If someone does complain, then the obligation would be to
11403 stop using the work in any new
11404
11405 work from then on though no penalty would attach for existing uses.
11406 This would create a strong incentive for copyright owners to mark
11407 their work.
11408 </p><p>
11409 That in turn raises the question about how work should best be
11410 marked. Here again, the system needs to adjust as the technologies
11411 evolve. The best way to ensure that the system evolves is to limit the
11412 Copyright Office's role to that of approving standards for marking
11413 content that have been crafted elsewhere.
11414 </p><a class="indexterm" name="idp10611456"></a><p>
11415 For example, if a recording industry association devises a method for
11416 marking CDs, it would propose that to the Copyright Office. The
11417 Copyright Office would hold a hearing, at which other proposals could
11418 be made. The Copyright Office would then select the proposal that it
11419 judged preferable, and it would base that choice
11420 <span class="emphasis"><em>solely</em></span> upon the consideration of which method
11421 could best be integrated into the registration and renewal system. We
11422 would not count on the government to innovate; but we would count on
11423 the government to keep the product of innovation in line with its
11424 other important functions.
11425 </p><p>
11426 Finally, marking content clearly would simplify registration
11427 requirements.  If photographs were marked by author and year, there
11428 would be little reason not to allow a photographer to reregister, for
11429 example, all photographs taken in a particular year in one quick
11430 step. The aim of the formality is not to burden the creator; the
11431 system itself should be kept as simple as possible.
11432 </p><p>
11433 The objective of formalities is to make things clear. The existing
11434 system does nothing to make things clear. Indeed, it seems designed to
11435 make things unclear.
11436 </p><p>
11437 If formalities such as registration were reinstated, one of the most
11438 difficult aspects of relying upon the public domain would be removed.
11439 It would be simple to identify what content is presumptively free; it
11440 would be simple to identify who controls the rights for a particular
11441 kind of content; it would be simple to assert those rights, and to renew
11442 that assertion at the appropriate time.
11443 </p></div></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="shortterms"></a>2.2. 2. Shorter Terms</h3></div></div></div><p>
11444 The term of copyright has gone from fourteen years to ninety-five
11445 years for corporate authors, and life of the author plus seventy years for
11446 natural authors.
11447 </p><p>
11448 In <em class="citetitle">The Future of Ideas</em>, I proposed a seventy-five-year term,
11449 granted in five-year increments with a requirement of renewal every
11450 five years.  That seemed radical enough at the time. But after we lost
11451 <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, the proposals became even more
11452 radical. <em class="citetitle">The Economist</em> endorsed a proposal for a fourteen-year
11453 copyright term.<a href="#ftn.idp10620672" class="footnote" name="idp10620672"><sup class="footnote">[214]</sup></a>
11454 Others have proposed tying the term to the term for patents.
11455 </p><p>
11456 I agree with those who believe that we need a radical change in
11457 copyright's term. But whether fourteen years or seventy-five, there
11458 are four principles that are important to keep in mind about copyright
11459 terms.
11460 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><p>
11461
11462 <span class="emphasis"><em>Keep it short:</em></span> The term should be as long as
11463 necessary to give incentives to create, but no longer. If it were tied
11464 to very strong protections for authors (so authors were able to
11465 reclaim rights from publishers), rights to the same work (not
11466 derivative works) might be extended further. The key is not to tie the
11467 work up with legal regulations when it no longer benefits an author.
11468 </p></li><li class="listitem"><p>
11469
11470 <span class="emphasis"><em>Keep it simple:</em></span> The line between the public
11471 domain and protected content must be kept clear. Lawyers like the
11472 fuzziness of <span class="quote">«<span class="quote">fair use,</span>»</span> and the distinction between <span class="quote">«<span class="quote">ideas</span>»</span> and
11473 <span class="quote">«<span class="quote">expression.</span>»</span>  That kind of law gives them lots of work. But our
11474 framers had a simpler idea in mind: protected versus unprotected.  The
11475 value of short terms is that there is little need to build exceptions
11476 into copyright when the term itself is kept short. A clear and active
11477 <span class="quote">«<span class="quote">lawyer-free zone</span>»</span> makes the complexities of <span class="quote">«<span class="quote">fair use</span>»</span> and
11478 <span class="quote">«<span class="quote">idea/expression</span>»</span> less necessary to navigate.
11479
11480 </p></li><li class="listitem"><a class="indexterm" name="idp10631552"></a><p>
11481
11482 <span class="emphasis"><em>Keep it alive:</em></span> Copyright should have to be
11483 renewed.  Especially if the maximum term is long, the copyright owner
11484 should be required to signal periodically that he wants the protection
11485 continued. This need not be an onerous burden, but there is no reason
11486 this monopoly protection has to be granted for free. On average, it
11487 takes ninety minutes for a veteran to apply for a
11488 pension.<a href="#ftn.idp10633712" class="footnote" name="idp10633712"><sup class="footnote">[215]</sup></a>
11489 If we make veterans suffer that burden, I don't see why we couldn't
11490 require authors to spend ten minutes every fifty years to file a
11491 single form.
11492 </p></li><li class="listitem"><p>
11493
11494 <span class="emphasis"><em>Keep it prospective:</em></span> Whatever the term of
11495 copyright should be, the clearest lesson that economists teach is that
11496 a term once given should not be extended. It might have been a mistake
11497 in 1923 for the law to offer authors only a fifty-six-year term. I
11498 don't think so, but it's possible. If it was a mistake, then the
11499 consequence was that we got fewer authors to create in 1923 than we
11500 otherwise would have. But we can't correct that mistake today by
11501 increasing the term. No matter what we do today, we will not increase
11502 the number of authors who wrote in 1923. Of course, we can increase
11503 the reward that those who write now get (or alternatively, increase
11504 the copyright burden that smothers many works that are today
11505 invisible). But increasing their reward will not increase their
11506 creativity in 1923.  What's not done is not done, and there's nothing
11507 we can do about that now.  </p></li></ol></div><p>
11508 These changes together should produce an <span class="emphasis"><em>average</em></span>
11509 copyright term that is much shorter than the current term. Until 1976,
11510 the average term was just 32.2 years. We should be aiming for the
11511 same.
11512 </p><p>
11513 No doubt the extremists will call these ideas <span class="quote">«<span class="quote">radical.</span>»</span> (After all, I
11514 call them <span class="quote">«<span class="quote">extremists.</span>»</span>) But again, the term I recommended was longer
11515 than the term under Richard Nixon. How <span class="quote">«<span class="quote">radical</span>»</span> can it be to ask for
11516 a more generous copyright law than Richard Nixon presided over?
11517 </p></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="freefairuse"></a>2.3. 3. Free Use Vs. Fair Use</h3></div></div></div><a class="indexterm" name="idp10643360"></a><a class="indexterm" name="idp10644160"></a><p>
11518 As I observed at the beginning of this book, property law originally
11519 granted property owners the right to control their property from the
11520 ground to the heavens. The airplane came along. The scope of property
11521 rights quickly changed. There was no fuss, no constitutional
11522 challenge.  It made no sense anymore to grant that much control, given
11523 the emergence of that new technology.
11524 </p><p>
11525 Our Constitution gives Congress the power to give authors <span class="quote">«<span class="quote">exclusive
11526 right</span>»</span> to <span class="quote">«<span class="quote">their writings.</span>»</span> Congress has given authors an exclusive
11527 right to <span class="quote">«<span class="quote">their writings</span>»</span> plus any derivative writings (made by
11528 others) that are sufficiently close to the author's original
11529 work. Thus, if I write a book, and you base a movie on that book, I
11530 have the power to deny you the right to release that movie, even
11531 though that movie is not <span class="quote">«<span class="quote">my writing.</span>»</span>
11532 </p><a class="indexterm" name="idp10648544"></a><p>
11533 Congress granted the beginnings of this right in 1870, when it
11534 expanded the exclusive right of copyright to include a right to
11535 control translations and dramatizations of a work.<a href="#ftn.idp10649808" class="footnote" name="idp10649808"><sup class="footnote">[216]</sup></a>
11536 The courts have expanded it slowly through judicial interpretation
11537 ever since. This expansion has been commented upon by one of the law's
11538 greatest judges, Judge Benjamin Kaplan.
11539 </p><div class="blockquote"><blockquote class="blockquote"><p>
11540 So inured have we become to the extension of the monopoly to a
11541 large range of so-called derivative works, that we no longer sense
11542 the oddity of accepting such an enlargement of copyright while
11543 yet intoning the abracadabra of idea and expression.<a href="#ftn.idp10652256" class="footnote" name="idp10652256"><sup class="footnote">[217]</sup></a>
11544 </p></blockquote></div><p>
11545 I think it's time to recognize that there are airplanes in this field and
11546 the expansiveness of these rights of derivative use no longer make
11547 sense. More precisely, they don't make sense for the period of time that
11548 a copyright runs. And they don't make sense as an amorphous grant.
11549 Consider each limitation in turn.
11550 </p><p>
11551 <span class="emphasis"><em>Term:</em></span> If Congress wants to grant a derivative
11552 right, then that right should be for a much shorter term. It makes
11553 sense to protect John
11554
11555
11556 Grisham's right to sell the movie rights to his latest novel (or at least
11557 I'm willing to assume it does); but it does not make sense for that right
11558 to run for the same term as the underlying copyright. The derivative
11559 right could be important in inducing creativity; it is not important long
11560 after the creative work is done.
11561 <a class="indexterm" name="idp10655568"></a>
11562 </p><p>
11563 <span class="emphasis"><em>Scope:</em></span> Likewise should the scope of derivative
11564 rights be narrowed.  Again, there are some cases in which derivative
11565 rights are important.  Those should be specified. But the law should
11566 draw clear lines around regulated and unregulated uses of copyrighted
11567 material. When all <span class="quote">«<span class="quote">reuse</span>»</span> of creative material was within the control
11568 of businesses, perhaps it made sense to require lawyers to negotiate
11569 the lines. It no longer makes sense for lawyers to negotiate the
11570 lines. Think about all the creative possibilities that digital
11571 technologies enable; now imagine pouring molasses into the
11572 machines. That's what this general requirement of permission does to
11573 the creative process. Smothers it.
11574 </p><a class="indexterm" name="idp10658400"></a><p>
11575 This was the point that Alben made when describing the making of the
11576 Clint Eastwood CD. While it makes sense to require negotiation for
11577 foreseeable derivative rights&#8212;turning a book into a movie, or a
11578 poem into a musical score&#8212;it doesn't make sense to require
11579 negotiation for the unforeseeable. Here, a statutory right would make
11580 much more sense.
11581 </p><p>
11582 In each of these cases, the law should mark the uses that are
11583 protected, and the presumption should be that other uses are not
11584 protected.  This is the reverse of the recommendation of my colleague
11585 Paul Goldstein.<a href="#ftn.idp10660528" class="footnote" name="idp10660528"><sup class="footnote">[218]</sup></a>
11586 His view is that the law should be written so that
11587 expanded protections follow expanded uses.
11588 </p><p>
11589 Goldstein's analysis would make perfect sense if the cost of the legal
11590 system were small. But as we are currently seeing in the context of
11591 the Internet, the uncertainty about the scope of protection, and the
11592 incentives to protect existing architectures of revenue, combined with
11593 a strong copyright, weaken the process of innovation.
11594 </p><p>
11595 The law could remedy this problem either by removing protection
11596
11597 beyond the part explicitly drawn or by granting reuse rights upon
11598 certain statutory conditions. Either way, the effect would be to free
11599 a great deal of culture to others to cultivate. And under a statutory
11600 rights regime, that reuse would earn artists more income.
11601 </p></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="liberatemusic"></a>2.4. 4. Liberate the Music&#8212;Again</h3></div></div></div><p>
11602 The battle that got this whole war going was about music, so it
11603 wouldn't be fair to end this book without addressing the issue that
11604 is, to most people, most pressing&#8212;music. There is no other
11605 policy issue that better teaches the lessons of this book than the
11606 battles around the sharing of music.
11607 </p><p>
11608 The appeal of file-sharing music was the crack cocaine of the
11609 Internet's growth. It drove demand for access to the Internet more
11610 powerfully than any other single application. It was the Internet's
11611 killer app&#8212;possibly in two senses of that word. It no doubt was
11612 the application that drove demand for bandwidth. It may well be the
11613 application that drives demand for regulations that in the end kill
11614 innovation on the network.
11615 </p><p>
11616 The aim of copyright, with respect to content in general and music in
11617 particular, is to create the incentives for music to be composed,
11618 performed, and, most importantly, spread. The law does this by giving
11619 an exclusive right to a composer to control public performances of his
11620 work, and to a performing artist to control copies of her performance.
11621 </p><p>
11622 File-sharing networks complicate this model by enabling the spread of
11623 content for which the performer has not been paid. But of course,
11624 that's not all the file-sharing networks do. As I described in chapter
11625 <a class="xref" href="#piracy" title="Chapter 5. Chapter Five: «Piracy»">5</a>, they enable
11626 four different kinds of sharing:
11627 </p><div class="orderedlist"><ol class="orderedlist" type="A"><li class="listitem"><p>
11628
11629 There are some who are using sharing networks as substitutes
11630 for purchasing CDs.
11631 </p></li><li class="listitem"><p>
11632
11633 There are also some who are using sharing networks to sample,
11634 on the way to purchasing CDs.
11635 </p></li><li class="listitem"><p>
11636
11637
11638 There are many who are using file-sharing networks to get access to
11639 content that is no longer sold but is still under copyright or that
11640 would have been too cumbersome to buy off the Net.
11641 </p></li><li class="listitem"><p>
11642
11643 There are many who are using file-sharing networks to get access to
11644 content that is not copyrighted or to get access that the copyright
11645 owner plainly endorses.
11646 </p></li></ol></div><a class="indexterm" name="idp10675472"></a><a class="indexterm" name="idp10676544"></a><p>
11647 Any reform of the law needs to keep these different uses in focus. It
11648 must avoid burdening type D even if it aims to eliminate type A. The
11649 eagerness with which the law aims to eliminate type A, moreover,
11650 should depend upon the magnitude of type B. As with VCRs, if the net
11651 effect of sharing is actually not very harmful, the need for regulation is
11652 significantly weakened.
11653 </p><p>
11654 As I said in chapter <a class="xref" href="#piracy" title="Chapter 5. Chapter Five: «Piracy»">5</a>, the actual harm caused by sharing is
11655 controversial.  For the purposes of this chapter, however, I assume
11656 the harm is real. I assume, in other words, that type A sharing is
11657 significantly greater than type B, and is the dominant use of sharing
11658 networks.
11659 </p><p>
11660 Nonetheless, there is a crucial fact about the current technological
11661 context that we must keep in mind if we are to understand how the law
11662 should respond.
11663 </p><p>
11664 Today, file sharing is addictive. In ten years, it won't be. It is
11665 addictive today because it is the easiest way to gain access to a
11666 broad range of content.  It won't be the easiest way to get access to
11667 a broad range of content in ten years. Today, access to the Internet
11668 is cumbersome and slow&#8212;we in the United States are lucky to have
11669 broadband service at 1.5 MBs, and very rarely do we get service at
11670 that speed both up and down. Although wireless access is growing, most
11671 of us still get access across wires. Most only gain access through a
11672 machine with a keyboard. The idea of the always on, always connected
11673 Internet is mainly just an idea.
11674 </p><p>
11675 But it will become a reality, and that means the way we get access to
11676 the Internet today is a technology in transition. Policy makers should
11677 not make policy on the basis of technology in transition. They should
11678
11679 make policy on the basis of where the technology is going. The
11680 question should not be, how should the law regulate sharing in this
11681 world?  The question should be, what law will we require when the
11682 network becomes the network it is clearly becoming? That network is
11683 one in which every machine with electricity is essentially on the Net;
11684 where everywhere you are&#8212;except maybe the desert or the
11685 Rockies&#8212;you can instantaneously be connected to the
11686 Internet. Imagine the Internet as ubiquitous as the best cell-phone
11687 service, where with the flip of a device, you are connected.
11688 </p><a class="indexterm" name="idp10682112"></a><p>
11689 In that world, it will be extremely easy to connect to services that
11690 give you access to content on the fly&#8212;such as Internet radio,
11691 content that is streamed to the user when the user demands. Here,
11692 then, is the critical point: When it is <span class="emphasis"><em>extremely</em></span>
11693 easy to connect to services that give access to content, it will be
11694 <span class="emphasis"><em>easier</em></span> to connect to services that give you
11695 access to content than it will be to download and store content
11696 <span class="emphasis"><em>on the many devices you will have for playing
11697 content</em></span>. It will be easier, in other words, to subscribe
11698 than it will be to be a database manager, as everyone in the
11699 download-sharing world of Napster-like technologies essentially
11700 is. Content services will compete with content sharing, even if the
11701 services charge money for the content they give access to. Already
11702 cell-phone services in Japan offer music (for a fee) streamed over
11703 cell phones (enhanced with plugs for headphones). The Japanese are
11704 paying for this content even though <span class="quote">«<span class="quote">free</span>»</span> content is available in the
11705 form of MP3s across the Web.<a href="#ftn.idp10687104" class="footnote" name="idp10687104"><sup class="footnote">[219]</sup></a>
11706
11707 </p><p>
11708 This point about the future is meant to suggest a perspective on the
11709 present: It is emphatically temporary. The <span class="quote">«<span class="quote">problem</span>»</span> with file
11710 sharing&#8212;to the extent there is a real problem&#8212;is a problem
11711 that will increasingly disappear as it becomes easier to connect to
11712 the Internet.  And thus it is an extraordinary mistake for policy
11713 makers today to be <span class="quote">«<span class="quote">solving</span>»</span> this problem in light of a technology
11714 that will be gone tomorrow.  The question should not be how to
11715 regulate the Internet to eliminate file sharing (the Net will evolve
11716 that problem away). The question instead should be how to assure that
11717 artists get paid, during
11718
11719
11720 this transition between twentieth-century models for doing business
11721 and twenty-first-century technologies.
11722 </p><p>
11723 The answer begins with recognizing that there are different <span class="quote">«<span class="quote">problems</span>»</span>
11724 here to solve. Let's start with type D content&#8212;uncopyrighted
11725 content or copyrighted content that the artist wants shared. The
11726 <span class="quote">«<span class="quote">problem</span>»</span> with this content is to make sure that the technology that
11727 would enable this kind of sharing is not rendered illegal. You can
11728 think of it this way: Pay phones are used to deliver ransom demands,
11729 no doubt.  But there are many who need to use pay phones who have
11730 nothing to do with ransoms. It would be wrong to ban pay phones in
11731 order to eliminate kidnapping.
11732 </p><p>
11733 Type C content raises a different <span class="quote">«<span class="quote">problem.</span>»</span> This is content that was,
11734 at one time, published and is no longer available. It may be
11735 unavailable because the artist is no longer valuable enough for the
11736 record label he signed with to carry his work. Or it may be
11737 unavailable because the work is forgotten. Either way, the aim of the
11738 law should be to facilitate the access to this content, ideally in a
11739 way that returns something to the artist.
11740 </p><a class="indexterm" name="idp10694720"></a><a class="indexterm" name="idp10695824"></a><p>
11741 Again, the model here is the used book store. Once a book goes out of
11742 print, it may still be available in libraries and used book
11743 stores. But libraries and used book stores don't pay the copyright
11744 owner when someone reads or buys an out-of-print book. That makes
11745 total sense, of course, since any other system would be so burdensome
11746 as to eliminate the possibility of used book stores' existing. But
11747 from the author's perspective, this <span class="quote">«<span class="quote">sharing</span>»</span> of his content without
11748 his being compensated is less than ideal.
11749 </p><p>
11750 The model of used book stores suggests that the law could simply deem
11751 out-of-print music fair game. If the publisher does not make copies of
11752 the music available for sale, then commercial and noncommercial
11753 providers would be free, under this rule, to <span class="quote">«<span class="quote">share</span>»</span> that content,
11754 even though the sharing involved making a copy. The copy here would be
11755 incidental to the trade; in a context where commercial publishing has
11756 ended, trading music should be as free as trading books.
11757 </p><p>
11758
11759
11760 Alternatively, the law could create a statutory license that would
11761 ensure that artists get something from the trade of their work. For
11762 example, if the law set a low statutory rate for the commercial
11763 sharing of content that was not offered for sale by a commercial
11764 publisher, and if that rate were automatically transferred to a trust
11765 for the benefit of the artist, then businesses could develop around
11766 the idea of trading this content, and artists would benefit from this
11767 trade.
11768 </p><p>
11769 This system would also create an incentive for publishers to keep
11770 works available commercially. Works that are available commercially
11771 would not be subject to this license. Thus, publishers could protect
11772 the right to charge whatever they want for content if they kept the
11773 work commercially available. But if they don't keep it available, and
11774 instead, the computer hard disks of fans around the world keep it
11775 alive, then any royalty owed for such copying should be much less than
11776 the amount owed a commercial publisher.
11777 </p><p>
11778 The hard case is content of types A and B, and again, this case is
11779 hard only because the extent of the problem will change over time, as
11780 the technologies for gaining access to content change. The law's
11781 solution should be as flexible as the problem is, understanding that
11782 we are in the middle of a radical transformation in the technology for
11783 delivering and accessing content.
11784 </p><p>
11785 So here's a solution that will at first seem very strange to both sides
11786 in this war, but which upon reflection, I suggest, should make some sense.
11787 </p><p>
11788 Stripped of the rhetoric about the sanctity of property, the basic
11789 claim of the content industry is this: A new technology (the Internet)
11790 has harmed a set of rights that secure copyright. If those rights are to
11791 be protected, then the content industry should be compensated for that
11792 harm. Just as the technology of tobacco harmed the health of millions
11793 of Americans, or the technology of asbestos caused grave illness to
11794 thousands of miners, so, too, has the technology of digital networks
11795 harmed the interests of the content industry.
11796 </p><p>
11797
11798 I love the Internet, and so I don't like likening it to tobacco or
11799 asbestos.  But the analogy is a fair one from the perspective of the
11800 law.  And it suggests a fair response: Rather than seeking to destroy
11801 the Internet, or the p2p technologies that are currently harming
11802 content providers on the Internet, we should find a relatively simple
11803 way to compensate those who are harmed.
11804 </p><a class="indexterm" name="idxpromisestokeepfisher"></a><p>
11805 The idea would be a modification of a proposal that has been
11806 floated by Harvard law professor William Fisher.<a href="#ftn.idp10706896" class="footnote" name="idp10706896"><sup class="footnote">[220]</sup></a>
11807 Fisher suggests a very clever way around the current impasse of the
11808 Internet. Under his plan, all content capable of digital transmission
11809 would (1) be marked with a digital watermark (don't worry about how
11810 easy it is to evade these marks; as you'll see, there's no incentive
11811 to evade them). Once the content is marked, then entrepreneurs would
11812 develop (2) systems to monitor how many items of each content were
11813 distributed. On the basis of those numbers, then (3) artists would be
11814 compensated. The compensation would be paid for by (4) an appropriate
11815 tax.
11816 </p><p>
11817 Fisher's proposal is careful and comprehensive. It raises a million
11818 questions, most of which he answers well in his upcoming book,
11819 <em class="citetitle">Promises to Keep</em>. The modification that I would make is relatively
11820 simple: Fisher imagines his proposal replacing the existing copyright
11821 system.  I imagine it complementing the existing system. The aim of
11822 the proposal would be to facilitate compensation to the extent that
11823 harm could be shown. This compensation would be temporary, aimed at
11824 facilitating a transition between regimes. And it would require
11825 renewal after a period of years. If it continues to make sense to
11826 facilitate free exchange of content, supported through a taxation
11827 system, then it can be continued. If this form of protection is no
11828 longer necessary, then the system could lapse into the old system of
11829 controlling access.
11830 </p><a class="indexterm" name="idp10728016"></a><a class="indexterm" name="idp10729264"></a><p>
11831 Fisher would balk at the idea of allowing the system to lapse. His aim
11832 is not just to ensure that artists are paid, but also to ensure that
11833 the system supports the widest range of <span class="quote">«<span class="quote">semiotic democracy</span>»</span>
11834 possible. But the aims of semiotic democracy would be satisfied if the
11835 other changes I described were accomplished&#8212;in particular, the
11836 limits on derivative
11837
11838
11839 uses. A system that simply charges for access would not greatly burden
11840 semiotic democracy if there were few limitations on what one was
11841 allowed to do with the content itself.
11842 </p><a class="indexterm" name="idp10732064"></a><a class="indexterm" name="idp10732848"></a><a class="indexterm" name="idp10733664"></a><a class="indexterm" name="idp10734480"></a><p>
11843 No doubt it would be difficult to calculate the proper measure of
11844 <span class="quote">«<span class="quote">harm</span>»</span> to an industry. But the difficulty of making that calculation
11845 would be outweighed by the benefit of facilitating innovation. This
11846 background system to compensate would also not need to interfere with
11847 innovative proposals such as Apple's MusicStore. As experts predicted
11848 when Apple launched the MusicStore, it could beat <span class="quote">«<span class="quote">free</span>»</span> by being
11849 easier than free is. This has proven correct: Apple has sold millions
11850 of songs at even the very high price of 99 cents a song. (At 99 cents,
11851 the cost is the equivalent of a per-song CD price, though the labels
11852 have none of the costs of a CD to pay.) Apple's move was countered by
11853 Real Networks, offering music at just 79 cents a song. And no doubt
11854 there will be a great deal of competition to offer and sell music
11855 on-line.
11856 </p><a class="indexterm" name="idp10737632"></a><a class="indexterm" name="idp10738448"></a><a class="indexterm" name="idp10739552"></a><a class="indexterm" name="idp10740384"></a><a class="indexterm" name="idp10741488"></a><p>
11857 This competition has already occurred against the background of <span class="quote">«<span class="quote">free</span>»</span>
11858 music from p2p systems. As the sellers of cable television have known
11859 for thirty years, and the sellers of bottled water for much more than
11860 that, there is nothing impossible at all about <span class="quote">«<span class="quote">competing with free.</span>»</span>
11861 Indeed, if anything, the competition spurs the competitors to offer
11862 new and better products. This is precisely what the competitive market
11863 was to be about. Thus in Singapore, though piracy is rampant, movie
11864 theaters are often luxurious&#8212;with <span class="quote">«<span class="quote">first class</span>»</span> seats, and meals
11865 served while you watch a movie&#8212;as they struggle and succeed in
11866 finding ways to compete with <span class="quote">«<span class="quote">free.</span>»</span>
11867 </p><p>
11868 This regime of competition, with a backstop to assure that artists
11869 don't lose, would facilitate a great deal of innovation in the
11870 delivery of content. That competition would continue to shrink type A
11871 sharing. It would inspire an extraordinary range of new
11872 innovators&#8212;ones who would have a right to the content, and would
11873 no longer fear the uncertain and barbarically severe punishments of
11874 the law.
11875 </p><p>
11876 In summary, then, my proposal is this:
11877 </p><p>
11878
11879
11880 The Internet is in transition. We should not be regulating a
11881 technology in transition. We should instead be regulating to minimize
11882 the harm to interests affected by this technological change, while
11883 enabling, and encouraging, the most efficient technology we can
11884 create.
11885 </p><p>
11886 We can minimize that harm while maximizing the benefit to innovation
11887 by
11888 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><p>
11889
11890 guaranteeing the right to engage in type D sharing;
11891 </p></li><li class="listitem"><p>
11892
11893 permitting noncommercial type C sharing without liability,
11894 and commercial type C sharing at a low and fixed rate set by
11895 statute;
11896 </p></li><li class="listitem"><p>
11897
11898 while in this transition, taxing and compensating for type A
11899 sharing, to the extent actual harm is demonstrated.
11900 </p></li></ol></div><p>
11901 But what if <span class="quote">«<span class="quote">piracy</span>»</span> doesn't disappear? What if there is a competitive
11902 market providing content at a low cost, but a significant number of
11903 consumers continue to <span class="quote">«<span class="quote">take</span>»</span> content for nothing? Should the law do
11904 something then?
11905 </p><p>
11906 Yes, it should. But, again, what it should do depends upon how the
11907 facts develop. These changes may not eliminate type A sharing. But the
11908 real issue is not whether it eliminates sharing in the abstract.  The
11909 real issue is its effect on the market. Is it better (a) to have a
11910 technology that is 95 percent secure and produces a market of size <em class="citetitle">x</em>,
11911 or (b) to have a technology that is 50 percent secure but produces a
11912 market of five times <em class="citetitle">x</em>? Less secure might produce more unauthorized
11913 sharing, but it is likely to also produce a much bigger market in
11914 authorized sharing. The most important thing is to assure artists'
11915 compensation without breaking the Internet. Once that's assured, then
11916 it may well be appropriate to find ways to track down the petty
11917 pirates.
11918 </p><p>
11919 But we're a long way away from whittling the problem down to this
11920 subset of type A sharers. And our focus until we're there should not
11921 be on finding ways to break the Internet. Our focus until we're there
11922
11923
11924 should be on how to make sure the artists are paid, while protecting
11925 the space for innovation and creativity that the Internet is.
11926 </p></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="firelawyers"></a>2.5. 5. Fire Lots of Lawyers</h3></div></div></div><p>
11927 I'm a lawyer. I make lawyers for a living. I believe in the law. I believe
11928 in the law of copyright. Indeed, I have devoted my life to working in
11929 law, not because there are big bucks at the end but because there are
11930 ideals at the end that I would love to live.
11931 </p><p>
11932 Yet much of this book has been a criticism of lawyers, or the role
11933 lawyers have played in this debate. The law speaks to ideals, but it
11934 is my view that our profession has become too attuned to the
11935 client. And in a world where the rich clients have one strong view,
11936 the unwillingness of the profession to question or counter that one
11937 strong view queers the law.
11938 </p><a class="indexterm" name="idp10759248"></a><a class="indexterm" name="idp10760064"></a><p>
11939 The evidence of this bending is compelling. I'm attacked as a
11940 <span class="quote">«<span class="quote">radical</span>»</span> by many within the profession, yet the positions that I am
11941 advocating are precisely the positions of some of the most moderate
11942 and significant figures in the history of this branch of the
11943 law. Many, for example, thought crazy the challenge that we brought to
11944 the Copyright Term Extension Act. Yet just thirty years ago, the
11945 dominant scholar and practitioner in the field of copyright, Melville
11946 Nimmer, thought it obvious.<a href="#ftn.idp10762400" class="footnote" name="idp10762400"><sup class="footnote">[221]</sup></a>
11947
11948 </p><p>
11949 However, my criticism of the role that lawyers have played in this
11950 debate is not just about a professional bias. It is more importantly
11951 about our failure to actually reckon the costs of the law.
11952 </p><p>
11953 Economists are supposed to be good at reckoning costs and benefits.
11954 But more often than not, economists, with no clue about how the legal
11955 system actually functions, simply assume that the transaction costs of
11956 the legal system are slight.<a href="#ftn.idp10765520" class="footnote" name="idp10765520"><sup class="footnote">[222]</sup></a>
11957 They see a system that has been around for hundreds of years, and they
11958 assume it works the way their elementary school civics class taught
11959 them it works.
11960 </p><p>
11961
11962 But the legal system doesn't work. Or more accurately, it doesn't work
11963 for anyone except those with the most resources. Not because the
11964 system is corrupt. I don't think our legal system (at the federal
11965 level, at least) is at all corrupt. I mean simply because the costs of
11966 our legal system are so astonishingly high that justice can
11967 practically never be done.
11968 </p><p>
11969 These costs distort free culture in many ways. A lawyer's time is
11970 billed at the largest firms at more than $400 per hour. How much time
11971 should such a lawyer spend reading cases carefully, or researching
11972 obscure strands of authority? The answer is the increasing reality:
11973 very little.  The law depended upon the careful articulation and
11974 development of doctrine, but the careful articulation and development
11975 of legal doctrine depends upon careful work. Yet that careful work
11976 costs too much, except in the most high-profile and costly cases.
11977 </p><p>
11978 The costliness and clumsiness and randomness of this system mock
11979 our tradition. And lawyers, as well as academics, should consider it
11980 their duty to change the way the law works&#8212;or better, to change the
11981 law so that it works. It is wrong that the system works well only for the
11982 top 1 percent of the clients. It could be made radically more efficient,
11983 and inexpensive, and hence radically more just.
11984 </p><p>
11985 But until that reform is complete, we as a society should keep the law
11986 away from areas that we know it will only harm. And that is precisely
11987 what the law will too often do if too much of our culture is left to
11988 its review.
11989 </p><a class="indexterm" name="idp10774224"></a><p>
11990 Think about the amazing things your kid could do or make with digital
11991 technology&#8212;the film, the music, the Web page, the blog. Or think
11992 about the amazing things your community could facilitate with digital
11993 technology&#8212;a wiki, a barn raising, activism to change something.
11994 Think about all those creative things, and then imagine cold molasses
11995 poured onto the machines. This is what any regime that requires
11996 permission produces. Again, this is the reality of Brezhnev's Russia.
11997 </p><p>
11998 The law should regulate in certain areas of culture&#8212;but it should
11999 regulate culture only where that regulation does good. Yet lawyers
12000
12001
12002 rarely test their power, or the power they promote, against this
12003 simple pragmatic question: <span class="quote">«<span class="quote">Will it do good?</span>»</span> When challenged about
12004 the expanding reach of the law, the lawyer answers, <span class="quote">«<span class="quote">Why not?</span>»</span>
12005 </p><p>
12006 We should ask, <span class="quote">«<span class="quote">Why?</span>»</span> Show me why your regulation of culture is
12007 needed. Show me how it does good. And until you can show me both,
12008 keep your lawyers away.
12009 </p></div></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp10487984" class="footnote"><p><a href="#idp10487984" class="para"><sup class="para">[210] </sup></a>
12010
12011
12012 See, for example, Marc Rotenberg, <span class="quote">«<span class="quote">Fair Information Practices and the
12013 Architecture of Privacy (What Larry Doesn't Get),</span>»</span> <em class="citetitle">Stanford Technology
12014 Law Review</em> 1 (2001): par. 6&#8211;18, available at
12015
12016 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #72</a>
12017 (describing examples in which technology defines privacy policy). See
12018 also Jeffrey Rosen, <em class="citetitle">The Naked Crowd: Reclaiming Security and Freedom
12019 in an Anxious Age</em> (New York: Random House, 2004) (mapping tradeoffs
12020 between technology and privacy).</p></div><div id="ftn.idp10575088" class="footnote"><p><a href="#idp10575088" class="para"><sup class="para">[211] </sup></a>
12021
12022 <em class="citetitle">Willful Infringement: A Report from the Front Lines of the Real
12023 Culture Wars</em> (2003), produced by Jed Horovitz, directed by Greg
12024 Hittelman, a Fiat Lucre production, available at
12025 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #72</a>.
12026 </p></div><div id="ftn.idp10596160" class="footnote"><p><a href="#idp10596160" class="para"><sup class="para">[212] </sup></a>
12027
12028 The proposal I am advancing here would apply to American works only.
12029 Obviously, I believe it would be beneficial for the same idea to be
12030 adopted by other countries as well.</p></div><div id="ftn.idp10607472" class="footnote"><p><a href="#idp10607472" class="para"><sup class="para">[213] </sup></a>
12031
12032 There would be a complication with derivative works that I have not
12033 solved here. In my view, the law of derivatives creates a more complicated
12034 system than is justified by the marginal incentive it creates.
12035 </p></div><div id="ftn.idp10620672" class="footnote"><p><a href="#idp10620672" class="para"><sup class="para">[214] </sup></a>
12036
12037
12038 <span class="quote">«<span class="quote">A Radical Rethink,</span>»</span> <em class="citetitle">Economist</em>, 366:8308 (25 January 2003): 15,
12039 available at
12040 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #74</a>.
12041 </p></div><div id="ftn.idp10633712" class="footnote"><p><a href="#idp10633712" class="para"><sup class="para">[215] </sup></a>
12042
12043 Department of Veterans Affairs, Veteran's Application for Compensation
12044 and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001),
12045 available at
12046 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #75</a>.
12047 </p></div><div id="ftn.idp10649808" class="footnote"><p><a href="#idp10649808" class="para"><sup class="para">[216] </sup></a>
12048
12049 Benjamin Kaplan, <em class="citetitle">An Unhurried View of Copyright</em> (New York: Columbia
12050 University Press, 1967), 32.
12051 </p></div><div id="ftn.idp10652256" class="footnote"><p><a href="#idp10652256" class="para"><sup class="para">[217] </sup></a>
12052  Ibid., 56.
12053 </p></div><div id="ftn.idp10660528" class="footnote"><p><a href="#idp10660528" class="para"><sup class="para">[218] </sup></a>
12054
12055 Paul Goldstein, <em class="citetitle">Copyright's Highway: From Gutenberg to the Celestial
12056 Jukebox</em> (Stanford: Stanford University Press, 2003), 187&#8211;216.
12057 <a class="indexterm" name="idp10489680"></a>
12058 </p></div><div id="ftn.idp10687104" class="footnote"><p><a href="#idp10687104" class="para"><sup class="para">[219] </sup></a>
12059
12060 See, for example, <span class="quote">«<span class="quote">Music Media Watch,</span>»</span> The J@pan Inc. Newsletter, 3
12061 April 2002, available at
12062 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #76</a>.
12063 </p></div><div id="ftn.idp10706896" class="footnote"><p><a href="#idp10706896" class="para"><sup class="para">[220] </sup></a>
12064
12065 <a class="indexterm" name="idxartistspayments3"></a>
12066 William Fisher, <em class="citetitle">Digital Music: Problems and Possibilities</em> (last
12067 revised: 10 October 2000), available at
12068 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #77</a>; William
12069 Fisher, <em class="citetitle">Promises to Keep: Technology, Law, and the Future of
12070 Entertainment</em> (forthcoming) (Stanford: Stanford University Press,
12071 2004), ch. 6, available at
12072 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #78</a>. Professor
12073 Netanel has proposed a related idea that would exempt noncommercial
12074 sharing from the reach of copyright and would establish compensation
12075 to artists to balance any loss. See Neil Weinstock Netanel, <span class="quote">«<span class="quote">Impose a
12076 Noncommercial Use Levy to Allow Free P2P File Sharing,</span>»</span> available at
12077 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #79</a>. For other proposals, see Lawrence Lessig, <span class="quote">«<span class="quote">Who's Holding Back
12078 Broadband?</span>»</span> <em class="citetitle">Washington Post</em>, 8 January 2002, A17; Philip S. Corwin on
12079 behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr.,
12080 Chairman of the Senate Foreign Relations Committee, 26 February 2002,
12081 available at
12082 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #80</a>; Serguei Osokine, <em class="citetitle">A Quick Case for Intellectual Property
12083 Use Fee (IPUF)</em>, 3 March 2002, available at
12084 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #81</a>; Jefferson Graham,
12085 <span class="quote">«<span class="quote">Kazaa, Verizon Propose to Pay Artists Directly,</span>»</span> <em class="citetitle">USA Today</em>, 13 May
12086 2002, available at
12087 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #82</a>; Steven M. Cherry, <span class="quote">«<span class="quote">Getting Copyright Right,</span>»</span>
12088 IEEE Spectrum Online, 1 July 2002, available at
12089 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #83</a>; Declan
12090 McCullagh, <span class="quote">«<span class="quote">Verizon's Copyright Campaign,</span>»</span> CNET News.com, 27 August
12091 2002, available at
12092 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #84</a>.
12093 Fisher's proposal is very similar to Richard Stallman's proposal for
12094 DAT. Unlike Fisher's, Stallman's proposal would not pay artists directly
12095 proportionally, though more popular artists would get more than the less
12096 popular. As is typical with Stallman, his proposal predates the current
12097 debate by about a decade. See
12098 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #85</a>.
12099 <a class="indexterm" name="idp10721776"></a>
12100 <a class="indexterm" name="idp10722592"></a>
12101 <a class="indexterm" name="idp10723408"></a>
12102 <a class="indexterm" name="idp10724240"></a>
12103 </p></div><div id="ftn.idp10762400" class="footnote"><p><a href="#idp10762400" class="para"><sup class="para">[221] </sup></a>
12104
12105 Lawrence Lessig, <span class="quote">«<span class="quote">Copyright's First Amendment</span>»</span> (Melville B. Nimmer
12106 Memorial Lecture), <em class="citetitle">UCLA Law Review</em> 48 (2001): 1057, 1069&#8211;70.
12107 </p></div><div id="ftn.idp10765520" class="footnote"><p><a href="#idp10765520" class="para"><sup class="para">[222] </sup></a>
12108
12109 A good example is the work of Professor Stan Liebowitz. Liebowitz is
12110 to be commended for his careful review of data about infringement,
12111 leading him to question his own publicly stated
12112 position&#8212;twice. He initially predicted that downloading would
12113 substantially harm the industry. He then revised his view in light of
12114 the data, and he has since revised his view again.  Compare Stan
12115 J. Liebowitz, <em class="citetitle">Rethinking the Network Economy: The True Forces That
12116 Drive the Digital Marketplace</em> (New York: Amacom, 2002), (reviewing his
12117 original view but expressing skepticism) with Stan J.  Liebowitz,
12118 <span class="quote">«<span class="quote">Will MP3s Annihilate the Record Industry?</span>»</span> working paper, June 2003,
12119 available at
12120 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #86</a>.
12121 Liebowitz's careful analysis is extremely valuable in estimating the
12122 effect of file-sharing technology. In my view, however, he
12123 underestimates the costs of the legal system. See, for example,
12124 <em class="citetitle">Rethinking</em>, 174&#8211;76.
12125 <a class="indexterm" name="idp10764080"></a>
12126 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-notes"></a>Chapter . Notes</h1></div></div></div><p>
12127 Throughout this text, there are references to links on the World Wide
12128 Web. As anyone who has tried to use the Web knows, these links can be
12129 highly unstable. I have tried to remedy the instability by redirecting
12130 readers to the original source through the Web site associated with
12131 this book. For each link below, you can go to
12132 http://free-culture.cc/notes and locate the original source by
12133 clicking on the number after the # sign. If the original link remains
12134 alive, you will be redirected to that link. If the original link has
12135 disappeared, you will be redirected to an appropriate reference for
12136 the material.
12137 </p></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-acknowledgments"></a>Chapter . Acknowledgments</h1></div></div></div><p>
12138 This book is the product of a long and as yet unsuccessful struggle that
12139 began when I read of Eric Eldred's war to keep books free. Eldred's
12140 work helped launch a movement, the free culture movement, and it is
12141 to him that this book is dedicated.
12142 </p><a class="indexterm" name="idp10784864"></a><p>
12143 I received guidance in various places from friends and academics,
12144 including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner,
12145 Mark Rose, and Kathleen Sullivan. And I received correction and
12146 guidance from many amazing students at Stanford Law School and
12147 Stanford University. They included Andrew B. Coan, John Eden, James
12148 P. Fellers, Christopher Guzelian, Erica Goldberg, Robert Hallman,
12149 Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, Alina Ng, and
12150 Erica Platt. I am particularly grateful to Catherine Crump and Harry
12151 Surden, who helped direct their research, and to Laura Lynch, who
12152 brilliantly managed the army that they assembled, and provided her own
12153 critical eye on much of this.
12154 </p><p>
12155 Yuko Noguchi helped me to understand the laws of Japan as well as
12156 its culture. I am thankful to her, and to the many in Japan who helped
12157 me prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki,
12158 Michihiro Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro
12159
12160 Yonezawa. I am thankful as well as to Professor Nobuhiro Nakayama,
12161 and the Tokyo University Business Law Center, for giving me the
12162 chance to spend time in Japan, and to Tadashi Shiraishi and Kiyokazu
12163 Yamagami for their generous help while I was there.
12164 </p><p>
12165 These are the traditional sorts of help that academics regularly draw
12166 upon. But in addition to them, the Internet has made it possible to
12167 receive advice and correction from many whom I have never even
12168 met. Among those who have responded with extremely helpful advice to
12169 requests on my blog about the book are Dr. Mohammad Al-Ubaydli, David
12170 Gerstein, and Peter DiMauro, as well as a long list of those who had
12171 specific ideas about ways to develop my argument. They included
12172 Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob Devine,
12173 Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy Hunsinger,
12174 Vaughn Iverson, John Karabaic, Jeff Keltner, James Lindenschmidt,
12175 K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan
12176 McMullen, Fred Norton, John Pormann, Pedro A. D.  Rezende, Shabbir
12177 Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker,
12178 Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt
12179 Wasserman, Miljenko Williams, <span class="quote">«<span class="quote">Wink,</span>»</span> Roger Wood, <span class="quote">«<span class="quote">Ximmbo da Jazz,</span>»</span>
12180 and Richard Yanco. (I apologize if I have missed anyone; with
12181 computers come glitches, and a crash of my e-mail system meant I lost
12182 a bunch of great replies.)
12183 </p><p>
12184 Richard Stallman and Michael Carroll each read the whole book in
12185 draft, and each provided extremely helpful correction and advice.
12186 Michael helped me to see more clearly the significance of the
12187 regulation of derivitive works. And Richard corrected an
12188 embarrassingly large number of errors. While my work is in part
12189 inspired by Stallman's, he does not agree with me in important places
12190 throughout this book.
12191 </p><p>
12192 Finally, and forever, I am thankful to Bettina, who has always
12193 insisted that there would be unending happiness away from these
12194 battles, and who has always been right. This slow learner is, as ever,
12195 grateful for her perpetual patience and love.
12196 </p></div><div class="index"><div class="titlepage"><div><div><h1 class="title"><a name="idp10793056"></a>Index</h1></div></div></div><div class="index"><div class="indexdiv"><h3>Symbols</h3><dl><dt>60 Minutes, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt></dl></div><div class="indexdiv"><h3>A</h3><dl><dt>ABC, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>academic journals, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Adobe eBook Reader, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>advertising, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>-<a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Africa, medications for HIV patients in, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Agee, Michael, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>agricultural patents, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>Aibo robotic dog, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>AIDS medications, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>air traffic, land ownership vs., <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Akerlof, George, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Alben, Alex, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a>-<a class="indexterm" href="#transformers">Chapter Eight: Transformers</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>alcohol prohibition, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Alice's Adventures in Wonderland (Carroll), <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>All in the Family, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Allen, Paul, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>Amazon, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>American Association of Law Libraries, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>American Graphophone Company, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Americans with Disabilities Act (1990), <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Andromeda, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Anello, Douglas, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>animated cartoons, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>antiretroviral drugs, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Apple Corporation, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>architecture, constraint effected through, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>archive.org, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dd><dl><dt>(see also Internet Archive)</dt></dl></dd><dt>archives, digital, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>-<a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>, <a class="indexterm" href="#together">Together</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Aristotle, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Armstrong, Edwin Howard, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#harms">Chapter Twelve: Harms</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Arrow, Kenneth, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>art, underground, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>artists</dt><dd><dl><dt>publicity rights on images of, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>recording industry payments to, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#radio">Radio</a>-<a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a>-<a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>retrospective compilations on, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a>-<a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt></dl></dd><dt>ASCAP, <a class="indexterm" href="#idp7048096">«Piracy»</a></dt><dt>Asia, commercial piracy in, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>AT&amp;T, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Ayer, Don, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt></dl></div><div class="indexdiv"><h3>B</h3><dl><dt>Bacon, Francis, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Barish, Stephanie, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Barlow, Joel, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Barnes &amp; Noble, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Barry, Hank, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>BBC, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Beatles, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Beckett, Thomas, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Bell, Alexander Graham, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Berlin Act (1908), <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Berman, Howard L., <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Berne Convention (1908), <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Bernstein, Leonard, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Betamax, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>biomedical research, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Black, Jane, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>blogs (Web-logs), <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>BMG, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>BMW, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Boies, David, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>Boland, Lois, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Bolling, Ruben, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Bono, Mary, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Bono, Sonny, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>books</dt><dd><dl><dt>English copyright law developed for, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>free on-line releases of, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a>-<a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>on Internet, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>out of print, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>resales of, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>three types of uses of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>total number of, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt></dl></dd><dt>booksellers, English, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Boswell, James, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>bots, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Boyle, James, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Braithwaite, John, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Branagh, Kenneth, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Brandeis, Louis D., <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Brazil, free culture in, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Breyer, Stephen, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Brezhnev, Leonid, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt><dt>British Parliament, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>broadcast flag, <a class="indexterm" href="#film">Film</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Bromberg, Dan, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Brown, John Seely, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>browsing, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Buchanan, James, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Bunyan, John, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Burdick, Quentin, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>Bush, George W., <a class="indexterm" href="#constrain">Constraining Creators</a></dt></dl></div><div class="indexdiv"><h3>C</h3><dl><dt>cable television, <a class="indexterm" href="#cabletv">Cable TV</a>-<a class="indexterm" href="#cabletv">Cable TV</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>camera technology, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Camp Chaos, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>CARP (Copyright Arbitration Royalty Panel), <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>cars, MP3 sound systems in, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Carson, Rachel, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>cartoon films, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>Casablanca, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>cassette recording, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dd><dl><dt>VCRs, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt></dl></dd><dt>Causby, Thomas Lee, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#harms">Chapter Twelve: Harms</a>, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Causby, Tinie, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#harms">Chapter Twelve: Harms</a>, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>CBS, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>CD-ROMs, film clips used in, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a>-<a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>CDs</dt><dd><dl><dt>copyright marking of, <a class="indexterm" href="#marking">Marking</a></dt><dt>foreign piracy of, <a class="indexterm" href="#piracy-i">Piracy I</a>-<a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>mix technology and, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a>-<a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>preference data on, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>prices of, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>sales levels of, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt></dl></dd><dt>cell phones, music streamed over, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>chimeras, <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>-<a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a></dt><dt>Christensen, Clayton M., <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Clark, Kim B., <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>CNN, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Coase, Ronald, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>CodePink Women in Peace, <a class="indexterm" href="#preface">Preface</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Coe, Brian, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Comcast, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>comics, Japanese, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>Commerce, U.S. Department of, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>commercials, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>-<a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>common law, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Commons, John R., <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>composer's rights vs. producers' rights in, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>composers, copyright protections of, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>compulsory license, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>computer games, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Conger, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Congress, U.S.</dt><dd><dl><dt>constitutional powers of, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>copyright terms extended by, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>in constitutional Progress Clause, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>on copyright laws, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>on radio, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>on recording industry, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>on VCR technology, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt></dl></dd><dt>Conrad, Paul, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Constitution, U.S.</dt><dd><dl><dt>Commerce Clause of, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>copyright purpose established in, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>First Amendment to, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>on creative property, <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>Progress Clause of, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>structural checks and balances of, <a class="indexterm" href="#beginnings">Beginnings</a></dt></dl></dd><dt>Conyers, John, Jr., <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a></dt><dt>cookies, Internet, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>copyleft licenses, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>copyright</dt><dd><dl><dt>as narrow monopoly right, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>constitutional purpose of, <a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>duration of, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>four regulatory modalities on, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>in perpetuity, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>marking of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>of natural authors vs. corporations, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>renewability of, <a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>scope of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>usage restrictions attached to, <a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>Copyright Act (1790), <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>copyright infringement lawsuits</dt><dd><dl><dt>against student file sharing, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>commercial creativity as primary purpose of, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>distribution technology targeted in, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>exaggerated claims of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#constrain">Constraining Creators</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>in recording industry, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#constrain">Constraining Creators</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>individual defendants intimidated by, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>statutory damages of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>willful infringement findings in, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>copyright law</dt><dd><dl><dt>as ex post regulation modality, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>as protection of creators, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>copies as core issue of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>creativity impeded by, <a class="indexterm" href="#idp7048096">«Piracy»</a></dt><dt>development of, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>English, <a class="indexterm" href="#idp7048096">«Piracy»</a>, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>European, <a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>fair use and, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>felony punishment for infringement of, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>history of American, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>innovation hampered by, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>innovative freedom balanced with fair compensation in, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Japanese, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>on music recordings, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>on republishing vs. transformation of original work, <a class="indexterm" href="#idp7048096">«Piracy»</a>-<a class="indexterm" href="#idp7048096">«Piracy»</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>registration requirement of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>scope of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>statutory licenses in, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>technology as automatic enforcer of, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>term extensions in, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt></dl></dd><dt>corporations</dt><dd><dl><dt>copyright terms for, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>in pharmaceutical industry, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>Country of the Blind, The (Wells), <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>-<a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a></dt><dt>Court of Appeals</dt><dd><dl><dt>Ninth Circuit, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt></dl></dd><dt>cover songs, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Creative Commons, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a>-<a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>creative property</dt><dd><dl><dt>common law protections of, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>constitutional tradition on, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>if value, then right theory of, <a class="indexterm" href="#idp7048096">«Piracy»</a>-<a class="indexterm" href="#idp7048096">«Piracy»</a></dt><dt>other property rights vs., <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>creativity</dt><dd><dl><dt>by transforming previous works, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>legal restrictions on, <a class="indexterm" href="#idp7048096">«Piracy»</a>-<a class="indexterm" href="#idp7048096">«Piracy»</a></dt></dl></dd><dt>Crichton, Michael, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Crosskey, William W., <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>culture</dt><dd><dl><dt>commercial vs. noncommercial, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt></dl></dd></dl></div><div class="indexdiv"><h3>D</h3><dl><dt>Daguerre, Louis, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Daley, Elizabeth, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Data General, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Day After Trinity, The, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>DDT, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Dean, Howard, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>democracy</dt><dd><dl><dt>in technologies of expression, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>public discourse in, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt></dl></dd><dt>derivative works</dt><dd><dl><dt>fair use vs., <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>historical shift in copyright coverage of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>piracy vs., <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>technological developments and, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>developing countries, foreign patent costs in, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>digital cameras, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Digital Copyright (Litman), <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Diller, Barry, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Disney, Inc., <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Disney, Walt, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Doctorow, Cory, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>doctors malpractice claims against, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>documentary film, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Donaldson v. Beckett, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Donaldson, Alexander, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Douglas, William O., <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>doujinshi comics, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>Down and Out in the Magic Kingdom (Doctorow), <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Drahos, Peter, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Dreyfuss, Rochelle, <a class="indexterm" href="#idp7048096">«Piracy»</a></dt><dt>driving speed, constraints on, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Drucker, Peter, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>drugs</dt><dd><dl><dt>pharmaceutical, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>Dryden, John, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Duck and Cover film, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Dylan, Bob, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></div><div class="indexdiv"><h3>E</h3><dl><dt>e-books, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>e-mail, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Eagle Forum, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Eastman, George, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Edison, Thomas, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>education</dt><dd><dl><dt>in media literacy, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>tinkering as means of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt></dl></dd><dt>Eldred, Eric, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>elections, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>electoral college, <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>Electronic Frontier Foundation, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Else, Jon, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>EMI, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>England, copyright laws developed in, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Enlightenment, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>environmentalism, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>ephemeral films, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Errors and Omissions insurance, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Erskine, Andrew, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>expression, technologies of</dt><dd><dl><dt>democratic, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>media literacy and, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt></dl></dd></dl></div><div class="indexdiv"><h3>F</h3><dl><dt>fair use, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dd><dl><dt>in documentary film, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Internet burdens on, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>legal intimidation tactics against, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>Fallows, James, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Fanning, Shawn, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Faraday, Michael, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>farming, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>FCC</dt><dd><dl><dt>on FM radio, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt></dl></dd><dt>feudal system, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>film industry</dt><dd><dl><dt>luxury theatres vs. video piracy in, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>trailer advertisements of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>films</dt><dd><dl><dt>animated, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>archive of, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>fair use of copyrighted material in, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>multiple copyrights associated with, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt></dl></dd><dt>First Amendment, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>first-sale doctrine, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Fisher, William, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>Florida, Richard, <a class="indexterm" href="#idp7048096">«Piracy»</a></dt><dt>FM radio, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Forbes, Steve, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>formalities, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>Fourneaux, Henri, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Fox (film company), <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Fox, William, <a class="indexterm" href="#film">Film</a></dt><dt>free culture</dt><dd><dl><dt>derivative works based on, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>English legal establishment of, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>four modalities of constraint on, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt> permission culture vs., <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>restoration efforts on previous aspects of, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt></dl></dd><dt>Free for All (Wayner), <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>free market, technological changes in, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>free software/open-source software (FS/OSS), <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Fried, Charles, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Friedman, Milton, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Frost, Robert, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Future of Ideas, The (Lessig), <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></div><div class="indexdiv"><h3>G</h3><dl><dt>Garlick, Mia, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Gates, Bill, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>General Film Company, <a class="indexterm" href="#film">Film</a></dt><dt>General Public License (GPL), <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>generic drugs, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>German copyright law, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Gershwin, George, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Gil, Gilberto, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Ginsburg, Ruth Bader, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Girl Scouts, <a class="indexterm" href="#idp7048096">«Piracy»</a></dt><dt>Global Positioning System, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>GNU/Linux operating system, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Goldstein, Paul, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Google, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>GPL (General Public License), <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Gracie Films, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Grimm fairy tales, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Grisham, John, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Groening, Matt, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Grokster, Ltd., <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></div><div class="indexdiv"><h3>H</h3><dl><dt>hacks, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Hal Roach Studios, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Hand, Learned, <a class="indexterm" href="#radio">Radio</a></dt><dt>handguns, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Hawthorne, Nathaniel, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Henry V, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Henry VIII, King of England, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Herrera, Rebecca, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Heston, Charlton, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>history, records of, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>HIV/AIDS therapies, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Hollings, Fritz, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>House of Lords, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Hummer Winblad, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Hummer, John, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Hyde, Rosel H., <a class="indexterm" href="#cabletv">Cable TV</a></dt></dl></div><div class="indexdiv"><h3>I</h3><dl><dt>IBM, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>if value, then right theory, <a class="indexterm" href="#idp7048096">«Piracy»</a>-<a class="indexterm" href="#idp7048096">«Piracy»</a>, <a class="indexterm" href="#pirates">Chapter Four: «Pirates»</a></dt><dt>images, ownership of, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>innovation, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dd><dl><dt>industry establishment opposed to, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>insecticide, environmental consequences of, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Intel, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>intellectual property rights, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt><dd><dl><dt>international organization on issues of, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>of drug patents, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>international law, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Internet</dt><dd><dl><dt>blogs on, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>books on, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>copyright applicability altered by technology of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>copyright regulatory balance lost with, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>development of, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#usnow">Us, now</a>-<a class="indexterm" href="#usnow">Us, now</a></dt><dt> efficient content distribution on, <a class="indexterm" href="#idp7048096">«Piracy»</a></dt><dt>initial free character of, <a class="indexterm" href="#usnow">Us, now</a>-<a class="indexterm" href="#usnow">Us, now</a></dt><dt>news events on, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>peer-generated rankings on, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>privacy protection on, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>public discourse conducted on, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>radio on, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>search engines used on, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt></dl></dd><dt>Internet Archive, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Internet Explorer, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>Iraq war, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>ISPs (Internet service providers), user identities revealed by, <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>, <a class="indexterm" href="#constrain">Constraining Creators</a>, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a>-<a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Iwerks, Ub, <a class="indexterm" href="#creators">Chapter One: Creators</a></dt></dl></div><div class="indexdiv"><h3>J</h3><dl><dt>Japanese comics, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>Jaszi, Peter, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Jefferson, Thomas, <a class="indexterm" href="#idp8002320">«Property»</a>, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Johnson, Lyndon, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Johnson, Samuel, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Jonson, Ben, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Jordan, Jesse, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>journalism, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>jury system, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Just Think!, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt></dl></div><div class="indexdiv"><h3>K</h3><dl><dt>Kaplan, Benjamin, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Kazaa, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Keaton, Buster, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>Kelly, Kevin, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Kennedy, John F., <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Kittredge, Alfred, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>knowledge, freedom of, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Kodak cameras, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Kodak Primer, The (Eastman), <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Kozinski, Alex, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Krim, Jonathan, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></div><div class="indexdiv"><h3>L</h3><dl><dt>land ownership, air traffic and, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Laurel and Hardy Films, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>law</dt><dd><dl><dt>as constraint modality, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>common vs. positive, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>databases of case reports in, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>federal vs. state, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt></dl></dd><dt>law schools, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Leaphart, Walter, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Lear, Norman, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>legal realist movement, <a class="indexterm" href="#together">Together</a></dt><dt>legal system, attorney costs in, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>Lessig, Lawrence, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dd><dl><dt>Eldred case involvement of, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>in international debate on intellectual property, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>Lessing, Lawrence, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Lexis and Westlaw, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>libraries</dt><dd><dl><dt>archival function of, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>journals in, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>of public-domain literature, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>privacy rights in use of, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt></dl></dd><dt>Library of Congress, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Licensing Act (1662), <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Liebowitz, Stan, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt><dt>Linux operating system, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Litman, Jessica, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Lofgren, Zoe, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Lott, Trent, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Lovett, Lyle, <a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Lucas, George, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Lucky Dog, The, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt></dl></div><div class="indexdiv"><h3>M</h3><dl><dt>Madonna, <a class="indexterm" href="#radio">Radio</a>-<a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>manga, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>Mansfield, William Murray, Lord, <a class="indexterm" href="#idp7048096">«Piracy»</a>-<a class="indexterm" href="#idp7048096">«Piracy»</a>, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Marijuana Policy Project, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>market competition, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>market constraints, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Marx Brothers, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>McCain, John, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>media</dt><dd><dl><dt>blog pressure on, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>commercial imperatives of, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>ownership concentration in, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt></dl></dd><dt>media literacy, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Mehra, Salil, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>MGM, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Michigan Technical University, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>Mickey Mouse, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>Microsoft, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dd><dl><dt>competitive strategies of, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>government case against, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>international software piracy of, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>network file system of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>on free software, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Windows operating system of, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>WIPO meeting opposed by, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>Millar v. Taylor, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Milton, John, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>monopoly, copyright as, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Morrison, Alan, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Movie Archive, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Moyers, Bill, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>MP3 players, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>MP3.com, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>MP3s, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>MTV, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Müller, Paul Hermann, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>music publishing, <a class="indexterm" href="#idp7048096">«Piracy»</a></dt><dt>MusicStore, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>my.mp3.com, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></div><div class="indexdiv"><h3>N</h3><dl><dt>Napster, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dd><dl><dt>number of registrations on, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>replacement of, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>venture capital for, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>Nashville Songwriters Association, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>National Writers Union, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>NBC, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Needleman, Rafe, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>NET (No Electronic Theft) Act (1998), <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Netanel, Neil Weinstock, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>Netscape, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>New Hampshire (Frost), <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>news coverage, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>-<a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>newspapers</dt><dd><dl><dt>archives of, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt></dl></dd><dt>Nick and Norm anti-drug campaign, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Nimmer, David, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>Nimmer, Melville, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt><dt>Ninth Circuit Court of Appeals, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>No Electronic Theft (NET) Act (1998), <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>norms, regulatory influence of, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt></dl></div><div class="indexdiv"><h3>O</h3><dl><dt>O'Connor, Sandra Day, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Olafson, Steve, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Olson, Theodore B., <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Oppenheimer, Matt, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>originalism, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Orwell, George, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>-<a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt></dl></div><div class="indexdiv"><h3>P</h3><dl><dt>parallel importation, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Paramount Pictures, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>patents</dt><dd><dl><dt>future patents vs. future copyrights in, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>in public domain, <a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>on pharmaceuticals, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>Patterson, Raymond, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>peer-to-peer (p2p) file sharing</dt><dd><dl><dt>efficiency of, <a class="indexterm" href="#idp7048096">«Piracy»</a>-<a class="indexterm" href="#idp7048096">«Piracy»</a></dt><dt>felony punishments for, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>regulatory balance lost in, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt></dl></dd><dt>permission culture</dt><dd><dl><dt> free culture vs., <a class="indexterm" href="#c-introduction">Introduction</a></dt></dl></dd><dt>permissions</dt><dd><dl><dt>photography exempted from, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt></dl></dd><dt>pharmaceutical patents, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>photography, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Picker, Randal C., <a class="indexterm" href="#film">Film</a>, <a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>piracy</dt><dd><dl><dt>derivative work vs., <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>in Asia, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>in development of content industry, <a class="indexterm" href="#pirates">Chapter Four: «Pirates»</a>-<a class="indexterm" href="#cabletv">Cable TV</a></dt></dl></dd><dt>player pianos, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>PLoS (Public Library of Science), <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Pogue, David, <a class="indexterm" href="#preface">Preface</a>-<a class="indexterm" href="#preface">Preface</a></dt><dt>political discourse, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Politics, (Aristotle), <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Porgy and Bess, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>pornography, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>positive law, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>power, concentration of, <a class="indexterm" href="#preface">Preface</a>-<a class="indexterm" href="#preface">Preface</a>, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Prelinger, Rick, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Princeton University, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>privacy rights, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Progress Clause, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Promises to Keep (Fisher), <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a>-<a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>property rights</dt><dd><dl><dt>air traffic vs., <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>feudal system of, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>intangibility of, <a class="indexterm" href="#idp8002320">«Property»</a></dt></dl></dd><dt>proprietary code, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>protection of artists vs. business interests, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Public Citizen, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>public domain</dt><dd><dl><dt>access fees for material in, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>balance of U.S. content in, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>defined, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>e-book restrictions on, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>English legal establishment of, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>future patents vs. future copyrights in, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>library of works derived from, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>license system for rebuilding of, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>public projects in, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>traditional term for conversion to, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt></dl></dd><dt>Public Enemy, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Public Library of Science (PLoS), <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt></dl></div><div class="indexdiv"><h3>Q</h3><dl><dt>Quayle, Dan, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt></dl></div><div class="indexdiv"><h3>R</h3><dl><dt>radio</dt><dd><dl><dt>FM spectrum of, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>music recordings played on, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>on Internet, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>railroad industry, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>rap music, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>RCA, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Reagan, Ronald, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Real Networks, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>recording industry</dt><dd><dl><dt>artist remuneration in, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>copyright infringement lawsuits of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>copyright protections in, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Internet radio hampered by, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>radio broadcast and, <a class="indexterm" href="#radio">Radio</a>-<a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>statutory license system in, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a></dt></dl></dd><dt>Recording Industry Association of America (RIAA)</dt><dd><dl><dt>copyright infringement lawsuits filed by, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>intimidation tactics of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>lobbying power of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>on Internet radio fees, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>regulation</dt><dd><dl><dt>as establishment protectionism, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>four modalities of, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>outsize penalties of, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>Rehnquist, William H., <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>remote channel changers, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Rensselaer Polytechnic Institute (RPI), <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dd><dl><dt>computer network search engine of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt></dl></dd><dt>Rise of the Creative Class, The (Florida), <a class="indexterm" href="#idp7048096">«Piracy»</a></dt><dt>Roberts, Michael, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>robotic dog, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Rogers, Fred, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Romeo and Juliet (Shakespeare), <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Rose, Mark, <a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#c-acknowledgments">Acknowledgments</a></dt><dt>RPI (see Rensselaer Polytechnic Institute (RPI))</dt><dt>Rubenfeld, Jeb, <a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>Russel, Phil, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt></dl></div><div class="indexdiv"><h3>S</h3><dl><dt>Safire, William, <a class="indexterm" href="#preface">Preface</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>San Francisco Opera, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Sarnoff, David, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Scarlet Letter, The (Hawthorne), <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Schlafly, Phyllis, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>scientific journals, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Scottish publishers, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>search engines, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>Seasons, The (Thomson), <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Senate, U.S., <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>September 11, 2001, terrorist attacks of, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Shakespeare, William, <a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>sheet music, <a class="indexterm" href="#idp7048096">«Piracy»</a>, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Silent Spring (Carson), <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Simpsons, The, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>single nucleotied polymorphisms (SNPs), <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Sonny Bono Copyright Term Extension Act (CTEA) (1998), <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dd><dl><dt>Supreme Court challenge of, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt></dl></dd><dt>Sony</dt><dd><dl><dt>Aibo robotic dog produced by, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt></dl></dd><dt>Sony Pictures Entertainment, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Sousa, John Philip, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>South Africa, Republic of, pharmaceutical imports by, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>speech, freedom of</dt><dd><dl><dt>constitutional guarantee of, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt></dl></dd><dt>speeding, constraints on, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Stallman, Richard, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Stanford University, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Star Wars, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Statute of Anne (1710), <a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>Statute of Monopolies (1656), <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>statutory damages, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>statutory licenses, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Steamboat Bill, Jr., <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Steamboat Willie, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>steel industry, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Stevens, Ted, <a class="indexterm" href="#preface">Preface</a></dt><dt>Steward, Geoffrey, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Superman comics, <a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>Supreme Court, U.S.</dt><dd><dl><dt>access to opinions of, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>House of Lords vs., <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>on airspace vs. land rights, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>on balance of interests in copyright law, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>on television advertising bans, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt></dl></dd><dt>Sutherland, Donald, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt></dl></div><div class="indexdiv"><h3>T</h3><dl><dt>Talbot, William, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Tatel, David, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Tauzin, Billy, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Taylor, Robert, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>technology</dt><dd><dl><dt>copyright enforcement controlled by, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>copyright intent altered by, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>established industries threatened by changes in, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt></dl></dd><dt>television</dt><dd><dl><dt>advertising on, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>-<a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>cable vs. broadcast, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>controversy avoided by, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt></dl></dd><dt>Television Archive, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Thomson, James, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Thurmond, Strom, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Tocqueville, Alexis de, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Tonson, Jacob, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Torvalds, Linus, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Turner, Ted, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Twentieth Century Fox, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt></dl></div><div class="indexdiv"><h3>U</h3><dl><dt>United Kingdom</dt><dd><dl><dt>history of copyright law in, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>public creative archive in, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>United States Trade Representative (USTR), <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Universal Music Group, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Universal Pictures, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>university computer networks, p2p sharing on, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt></dl></div><div class="indexdiv"><h3>V</h3><dl><dt>Vaidhyanathan, Siva, <a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#film">Film</a>, <a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#together">Together</a></dt><dt>Valenti, Jack</dt><dd><dl><dt> on creative property rights, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>Vanderbilt University, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>VCRs, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>venture capitalists, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>veterans' pensions, <a class="indexterm" href="#shortterms">2. Shorter Terms</a></dt><dt>Video Pipeline, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Vivendi Universal, <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>von Lohmann, Fred, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt></dl></div><div class="indexdiv"><h3>W</h3><dl><dt>Wagner, Richard, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Warner Brothers, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Warner Music Group, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Warren, Samuel D., <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Way Back Machine, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Wayner, Peter, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Web-logs (blogs), <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Webster, Noah, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Wellcome Trust, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Wells, H. G., <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>-<a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a></dt><dt>White House press releases, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>willful infringement, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Windows, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>Winer, Dave, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Winick, Judd, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>WJOA, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>World Intellectual Property Organization (WIPO), <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>World Summit on the Information Society (WSIS), <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>World Trade Center, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>World Wide Web, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>WorldCom, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>WRC, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Wright brothers, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt></dl></div><div class="indexdiv"><h3>Y</h3><dl><dt>Yanofsky, Dave, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt></dl></div><div class="indexdiv"><h3>Z</h3><dl><dt>Zimmerman, Edwin, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>Zittrain, Jonathan, <a class="indexterm" href="#idp7048096">«Piracy»</a>, <a class="indexterm" href="#lawscope">Law: Scope</a></dt></dl></div></div></div><div class="colophon"><h1 class="title"><a name="idp10793312"></a></h1><p>
12197 Free culture: How big media uses technology and the law to lock down
12198 culture and control creativity / Lawrence Lessig.
12199 </p><p>
12200 Copyright © 2004 Lawrence Lessig.  Some rights reserved.
12201 </p><p>
12202 <a class="ulink" href="http://free-culture.cc/" target="_top">http://free-culture.cc/</a>
12203 </p><p>
12204 This book is licensed under a Creative Commons license. This license
12205 permits non-commercial use of this work, so long as attribution is
12206 given.  For more information about the license visit
12207 <a class="ulink" href="http://creativecommons.org/licenses/by-nc/1.0/" target="_top">http://creativecommons.org/licenses/by-nc/1.0/</a>
12208 </p><p>
12209 Published 2015 by Petter Reinholdtsen in his spare time.  First
12210 published 2004 by The Penguin Press.  Thomas Gramstad Forlag donated
12211 the ISBN numbers.
12212 </p><p>
12213 Excerpt from an editorial titled <span class="quote">«<span class="quote">The Coming of Copyright
12214 Perpetuity,</span>»</span> <em class="citetitle">The New York Times</em>, January
12215 16, 2003. Copyright © 2003 by The New York Times Co.  Reprinted
12216 with permission.
12217 </p><p>
12218 Cartoon in figure
12219 <a class="xref" href="#fig-1711-vcr-handgun-cartoonfig" title="Figure 10.18. &#8212; On which item have the courts ruled that manufacturers and retailers be held responsible for having supplied the equipment?">10.18</a> by
12220 Paul Conrad, copyright Tribune Media Services, Inc.  All rights
12221 reserved. Reprinted with permission.
12222 </p><p>
12223 Diagram in figure
12224 <a class="xref" href="#fig-1761-pattern-modern-media-ownership" title="Figure 10.19. ">10.19</a>
12225 courtesy of the office of FCC Commissioner, Michael J. Copps.
12226 </p><p>
12227 Includes index.
12228 </p><p>
12229 Classifications: (Dewey)
12230 306.4
12231 306.40973
12232 306.46
12233 341.7582
12234 343.7309/9,
12235 (UDK) 347.78
12236 (US Lib. of Congress) KF2979.L47 2004
12237 (ACM CRCS) K.4.1
12238 </p><p>
12239 The book source is in DocBook notation and the other formats are
12240 derived from this.  The source is based on a version from Hans Schou.
12241 Typeset using Crimson Text and formatted using dblatex.  Many thanks
12242 to the dblatex developer Benoît Guillon for his help.  The source is
12243 available from
12244 <a class="ulink" href="https://github.com/petterreinholdtsen/free-culture-lessig" target="_top">https://github.com/petterreinholdtsen/free-culture-lessig</a>.
12245 Please report any problems using the GitHub issue tracker.
12246 </p><p>
12247
12248 </p><p>
12249 </p><div class="informaltable"><a name="isbn"></a><table border="1"><colgroup><col><col></colgroup><thead><tr><th align="left">ISBN</th><th align="left">Format / MIME-type</th></tr></thead><tbody><tr><td align="left">978-82-8067-010-6</td><td align="left">Printed copy from Lulu</td></tr><tr><td align="left">978-82-8067-011-3</td><td align="left">application/pdf</td></tr><tr><td align="left">978-82-8067-012-0</td><td align="left">application/epub+zip</td></tr><tr><td align="left">978-82-8067-013-7</td><td align="left">application/x-mobipocket-ebook</td></tr></tbody></table></div><p>
12250 </p></div></div></body></html>