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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="idp2366672"></a><p>
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   5 This version of <em class="citetitle">Free Culture</em> is licensed under
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   7 this work, so long as attribution is given.  For more information
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   9 <a class="ulink" href="http://creativecommons.org/licenses/by-nc/1.0/" target="_top">http://creativecommons.org/licenses/by-nc/1.0/</a>
  10    </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>
  11 LAWRENCE LESSIG
  12 (<a class="ulink" href="http://www.lessig.org" target="_top">http://www.lessig.org</a>),
  13 professor of law and a John A. Wilson Distinguished Faculty Scholar
  14 at Stanford Law School, is founder of the Stanford Center for Internet
  15 and Society and is chairman of the Creative Commons
  16 (<a class="ulink" href="http://creativecommons.org" target="_top">http://creativecommons.org</a>).
  17 The author of The Future of Ideas (Random House, 2001) and Code: And
  18 Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of
  19 the boards of the Public Library of Science, the Electronic Frontier
  20 Foundation, and Public Knowledge. He was the winner of the Free
  21 Software Foundation's Award for the Advancement of Free Software,
  22 twice listed in BusinessWeek's <span class="quote">«<span class="quote">e.biz 25,</span>»</span> and named one of Scientific
  23 American's <span class="quote">«<span class="quote">50 visionaries.</span>»</span> A graduate of the University of
  24 Pennsylvania, Cambridge University, and Yale Law School, Lessig
  25 clerked for Judge Richard Posner of the U.S. Seventh Circuit Court of
  26 Appeals.
  27   </p></div></div></div><hr></div><div class="dedication"><div class="titlepage"><div><div><h1 class="title"><a name="alsobylessig"></a>
  28 Also by Lawrence Lessig
  29 </h1></div></div></div><div class="itemizedlist"><ul class="itemizedlist" style="list-style-type: disc; "><li class="listitem"><p>
  30
  31 The USA is lesterland: The nature of congressional corruption
  32 </p></li><li class="listitem"><p>
  33
  34 Republic, lost: How money corrupts Congress - and a plan to stop it
  35 </p></li><li class="listitem"><p>
  36
  37 Remix: Making art and commerce thrive in the hybrid economy
  38 </p></li><li class="listitem"><p>
  39
  40 Code: Version 2.0
  41 </p></li><li class="listitem"><p>
  42
  43 The Future of Ideas: The Fate of the Commons in a Connected World
  44 </p></li><li class="listitem"><p>
  45
  46 Code: And Other Laws of Cyberspace
  47 </p></li></ul></div></div><div class="dedication"><div class="titlepage"><div><div><h1 class="title"><a name="idp332480"></a></h1></div></div></div><p>
  48 To Eric Eldred &#8212; whose work first drew me to this cause, and for whom
  49 it continues still.
  50 </p></div><div class="toc"><dl class="toc"><dt><span class="preface"><a href="#preface">PREFACE</a></span></dt><dt><span class="chapter">0. <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">Creators</a></span></dt><dt><span class="chapter">2. <a href="#mere-copyists"><span class="quote">«<span class="quote">Mere Copyists</span>»</span></a></span></dt><dt><span class="chapter">3. <a href="#catalogs">Catalogs</a></span></dt><dt><span class="chapter">4. <a href="#pirates"><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"><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">Founders</a></span></dt><dt><span class="chapter">7. <a href="#recorders">Recorders</a></span></dt><dt><span class="chapter">8. <a href="#transformers">Transformers</a></span></dt><dt><span class="chapter">9. <a href="#collectors">Collectors</a></span></dt><dt><span class="chapter">10. <a href="#property-i"><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">Chimera</a></span></dt><dt><span class="chapter">12. <a href="#harms">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">Eldred</a></span></dt><dt><span class="chapter">14. <a href="#eldred-ii">Eldred II</a></span></dt></dl></dd><dt><span class="chapter">15. <a href="#c-conclusion">CONCLUSION</a></span></dt><dt><span class="chapter">16. <a href="#c-afterword">AFTERWORD</a></span></dt><dd><dl><dt><span class="section">16.1. <a href="#usnow">US, NOW</a></span></dt><dd><dl><dt><span class="section">16.1.1. <a href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></span></dt><dt><span class="section">16.1.2. <a href="#oneidea">Rebuilding Free Culture: One Idea</a></span></dt></dl></dd><dt><span class="section">16.2. <a href="#themsoon">THEM, SOON</a></span></dt><dd><dl><dt><span class="section">16.2.1. <a href="#formalities">1. More Formalities</a></span></dt><dd><dl><dt><span class="section">16.2.1.1. <a href="#registration">REGISTRATION AND RENEWAL</a></span></dt><dt><span class="section">16.2.1.2. <a href="#marking">MARKING</a></span></dt></dl></dd><dt><span class="section">16.2.2. <a href="#shortterms">2. Shorter Terms</a></span></dt><dt><span class="section">16.2.3. <a href="#freefairuse">3. Free Use Vs. Fair Use</a></span></dt><dt><span class="section">16.2.4. <a href="#liberatemusic">4. Liberate the Music&#8212;Again</a></span></dt><dt><span class="section">16.2.5. <a href="#firelawyers">5. Fire Lots of Lawyers</a></span></dt></dl></dd></dl></dd><dt><span class="chapter">17. <a href="#c-notes">NOTES</a></span></dt><dt><span class="chapter">18. <a href="#c-acknowledgments">ACKNOWLEDGMENTS</a></span></dt><dt><span class="index"><a href="#idp10779456">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>
  51 <span class="bold"><strong>At the end</strong></span> of his review of my first
  52 book, <em class="citetitle">Code: And Other Laws of Cyberspace</em>, David
  53 Pogue, a brilliant writer and author of countless technical and
  54 computer-related texts, wrote this:
  55 </p><div class="blockquote"><blockquote class="blockquote"><p>
  56 Unlike actual law, Internet software has no capacity to punish. It
  57 doesn't affect people who aren't online (and only a tiny minority
  58 of the world population is). And if you don't like the Internet's
  59 system, you can always flip off the modem.<a href="#ftn.preface01" class="footnote" name="preface01"><sup class="footnote">[1]</sup></a>
  60 </p></blockquote></div><p>
  61 Pogue was skeptical of the core argument of the book&#8212;that
  62 software, or <span class="quote">«<span class="quote">code,</span>»</span> functioned as a kind of law&#8212;and his review
  63 suggested the happy thought that if life in cyberspace got bad, we
  64 could always <span class="quote">«<span class="quote">drizzle, drazzle, druzzle, drome</span>»</span>-like simply flip a
  65 switch and be back home. Turn off the modem, unplug the computer, and
  66 any troubles that exist in <span class="emphasis"><em>that</em></span> space wouldn't
  67 <span class="quote">«<span class="quote">affect</span>»</span> us anymore.
  68 </p><p>
  69 Pogue might have been right in 1999&#8212;I'm skeptical, but maybe.
  70 But even if he was right then, the point is not right now:
  71 <em class="citetitle">Free Culture</em> is about the troubles the Internet
  72 causes even after the modem is turned
  73
  74 off. It is an argument about how the battles that now rage regarding life
  75 on-line have fundamentally affected <span class="quote">«<span class="quote">people who aren't online.</span>»</span> There
  76 is no switch that will insulate us from the Internet's effect.
  77 </p><a class="indexterm" name="idp160128"></a><p>
  78 But unlike <em class="citetitle">Code</em>, the argument here is not much
  79 about the Internet itself. It is instead about the consequence of the
  80 Internet to a part of our tradition that is much more fundamental,
  81 and, as hard as this is for a geek-wanna-be to admit, much more
  82 important.
  83 </p><p>
  84 That tradition is the way our culture gets made. As I explain in the
  85 pages that follow, we come from a tradition of <span class="quote">«<span class="quote">free culture</span>»</span>&#8212;not
  86 <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
  87 free software movement<a href="#ftn.idp182480" class="footnote" name="idp182480"><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>
  88 <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
  89 free culture supports and protects creators and innovators. It does
  90 this directly by granting intellectual property rights. But it does so
  91 indirectly by limiting the reach of those rights, to guarantee that
  92 follow-on creators and innovators remain <span class="emphasis"><em>as free as
  93 possible</em></span> from the control of the past. A free culture is
  94 not a culture without property, just as a free market is not a market
  95 in which everything is free. The opposite of a free culture is a
  96 <span class="quote">«<span class="quote">permission culture</span>»</span>&#8212;a culture in which creators get to create
  97 only with the permission of the powerful, or of creators from the
  98 past.
  99 </p><p>
 100 If we understood this change, I believe we would resist it. Not <span class="quote">«<span class="quote">we</span>»</span>
 101 on the Left or <span class="quote">«<span class="quote">you</span>»</span> on the Right, but we who have no stake in the
 102 particular industries of culture that defined the twentieth century.
 103 Whether you are on the Left or the Right, if you are in this sense
 104 disinterested, then the story I tell here will trouble you. For the
 105 changes I describe affect values that both sides of our political
 106 culture deem fundamental.
 107 </p><a class="indexterm" name="idxpowerconcentrationof"></a><a class="indexterm" name="idp6851440"></a><a class="indexterm" name="idp6852192"></a><a class="indexterm" name="idp6852944"></a><p>
 108 We saw a glimpse of this bipartisan outrage in the early summer of
 109 2003. As the FCC considered changes in media ownership rules that
 110 would relax limits on media concentration, an extraordinary coalition
 111 generated more than 700,000 letters to the FCC opposing the change.
 112 As William Safire described marching <span class="quote">«<span class="quote">uncomfortably alongside CodePink
 113 Women for Peace and the National Rifle Association, between liberal
 114 Olympia Snowe and conservative Ted Stevens,</span>»</span> he formulated perhaps
 115 most simply just what was at stake: the concentration of power. And as
 116 he asked,
 117 </p><div class="blockquote"><blockquote class="blockquote"><p>
 118 Does that sound unconservative? Not to me. The concentration of
 119 power&#8212;political, corporate, media, cultural&#8212;should be anathema to
 120 conservatives. The diffusion of power through local control, thereby
 121 encouraging individual participation, is the essence of federalism and
 122 the greatest expression of democracy.<a href="#ftn.idp187776" class="footnote" name="idp187776"><sup class="footnote">[3]</sup></a>
 123 </p></blockquote></div><p>
 124 This idea is an element of the argument of <em class="citetitle">Free Culture</em>, though my
 125 focus is not just on the concentration of power produced by
 126 concentrations in ownership, but more importantly, if because less
 127 visibly, on the concentration of power produced by a radical change in
 128 the effective scope of the law. The law is changing; that change is
 129 altering the way our culture gets made; that change should worry
 130 you&#8212;whether or not you care about the Internet, and whether you're on
 131 Safire's left or on his right.
 132 </p><a class="indexterm" name="idp6858848"></a><p>
 133 <span class="strong"><strong>The inspiration</strong></span> for the title and for
 134 much of the argument of this book comes from the work of Richard
 135 Stallman and the Free Software Foundation. Indeed, as I reread
 136 Stallman's own work, especially the essays in <em class="citetitle">Free Software, Free
 137 Society</em>, I realize that all of the theoretical insights I develop here
 138 are insights Stallman described decades ago. One could thus well argue
 139 that this work is <span class="quote">«<span class="quote">merely</span>»</span> derivative.
 140 </p><p>
 141 I accept that criticism, if indeed it is a criticism. The work of a
 142 lawyer is always derivative, and I mean to do nothing more in this
 143 book than to remind a culture about a tradition that has always been
 144 its own.  Like Stallman, I defend that tradition on the basis of
 145 values. Like Stallman, I believe those are the values of freedom. And
 146 like Stallman, I believe those are values of our past that will need
 147 to be defended in our future. A free culture has been our past, but it
 148 will only be our future if we change the path we are on right now.
 149
 150
 151 Like Stallman's arguments for free software, an argument for free
 152 culture stumbles on a confusion that is hard to avoid, and even harder
 153 to understand. A free culture is not a culture without property; it is not
 154 a culture in which artists don't get paid. A culture without property, or
 155 in which creators can't get paid, is anarchy, not freedom. Anarchy is not
 156 what I advance here.
 157 </p><p>
 158 Instead, the free culture that I defend in this book is a balance
 159 between anarchy and control. A free culture, like a free market, is
 160 filled with property. It is filled with rules of property and contract
 161 that get enforced by the state. But just as a free market is perverted
 162 if its property becomes feudal, so too can a free culture be queered
 163 by extremism in the property rights that define it. That is what I
 164 fear about our culture today. It is against that extremism that this
 165 book is written.
 166 </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>
 167 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.
 168 </p></div><div id="ftn.idp182480" class="footnote"><p><a href="#idp182480" class="para"><sup class="para">[2] </sup></a>
 169 Richard M. Stallman, <em class="citetitle">Free Software, Free Societies</em> 57 (Joshua Gay, ed. 2002).
 170 </p></div><div id="ftn.idp187776" class="footnote"><p><a href="#idp187776" class="para"><sup class="para">[3] </sup></a> William Safire,
 171 <span class="quote">«<span class="quote">The Great Media Gulp,</span>»</span> <em class="citetitle">New York Times</em>, 22 May 2003.
 172 <a class="indexterm" name="idp6857072"></a>
 173 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-introduction"></a>Chapter 0. INTRODUCTION</h1></div></div></div><a class="indexterm" name="idxwrightbrothers"></a><p>
 174 <span class="strong"><strong>On December 17</strong></span>, 1903, on a windy North Carolina beach for just
 175 shy of one hundred seconds, the Wright brothers demonstrated that a
 176 heavier-than-air, self-propelled vehicle could fly. The moment was electric
 177 and its importance widely understood. Almost immediately, there
 178 was an explosion of interest in this newfound technology of manned
 179 flight, and a gaggle of innovators began to build upon it.
 180 </p><a class="indexterm" name="idxairtrafficlandownershipvs"></a><a class="indexterm" name="idxlandownershipairtrafficand"></a><a class="indexterm" name="idxpropertyrightsairtrafficvs"></a><p>
 181 At the time the Wright brothers invented the airplane, American
 182 law held that a property owner presumptively owned not just the surface
 183 of his land, but all the land below, down to the center of the earth,
 184 and all the space above, to <span class="quote">«<span class="quote">an indefinite extent, upwards.</span>»</span><a href="#ftn.idp6874288" class="footnote" name="idp6874288"><sup class="footnote">[4]</sup></a>
 185 For many
 186 years, scholars had puzzled about how best to interpret the idea that
 187 rights in land ran to the heavens. Did that mean that you owned the
 188 stars? Could you prosecute geese for their willful and regular trespass?
 189 </p><a class="indexterm" name="idp6875552"></a><p>
 190 Then came airplanes, and for the first time, this principle of American
 191 law&#8212;deep within the foundations of our tradition, and acknowledged
 192 by the most important legal thinkers of our past&#8212;mattered. If
 193 my land reaches to the heavens, what happens when United flies over
 194 my field? Do I have the right to banish it from my property? Am I allowed
 195 to enter into an exclusive license with Delta Airlines? Could we
 196 set up an auction to decide how much these rights are worth?
 197 </p><a class="indexterm" name="idp6877408"></a><a class="indexterm" name="idp6878160"></a><p>
 198 In 1945, these questions became a federal case. When North Carolina
 199 farmers Thomas Lee and Tinie Causby started losing chickens
 200 because of low-flying military aircraft (the terrified chickens apparently
 201 flew into the barn walls and died), the Causbys filed a lawsuit saying
 202 that the government was trespassing on their land. The airplanes,
 203 of course, never touched the surface of the Causbys' land. But if, as
 204 Blackstone, Kent, and Coke had said, their land reached to <span class="quote">«<span class="quote">an indefinite
 205 extent, upwards,</span>»</span> then the government was trespassing on their
 206 property, and the Causbys wanted it to stop.
 207 </p><a class="indexterm" name="idp6880272"></a><a class="indexterm" name="idp6881024"></a><a class="indexterm" name="idxdouglaswilliamo"></a><a class="indexterm" name="idxsupremecourtusonairspacevslandrights"></a><p>
 208 The Supreme Court agreed to hear the Causbys' case. Congress had
 209 declared the airways public, but if one's property really extended to the
 210 heavens, then Congress's declaration could well have been an unconstitutional
 211 <span class="quote">«<span class="quote">taking</span>»</span> of property without compensation. The Court acknowledged
 212 that <span class="quote">«<span class="quote">it is ancient doctrine that common law ownership of
 213 the land extended to the periphery of the universe.</span>»</span> But Justice Douglas
 214 had no patience for ancient doctrine. In a single paragraph, hundreds of
 215 years of property law were erased. As he wrote for the Court,
 216 </p><div class="blockquote"><blockquote class="blockquote"><p>
 217 [The] doctrine has no place in the modern world. The air is a
 218 public highway, as Congress has declared. Were that not true,
 219 every transcontinental flight would subject the operator to countless
 220 trespass suits. Common sense revolts at the idea. To recognize
 221 such private claims to the airspace would clog these highways,
 222 seriously interfere with their control and development in the public
 223 interest, and transfer into private ownership that to which only
 224 the public has a just claim.<a href="#ftn.idp6887680" class="footnote" name="idp6887680"><sup class="footnote">[5]</sup></a>
 225 </p></blockquote></div><p>
 226 <span class="quote">«<span class="quote">Common sense revolts at the idea.</span>»</span>
 227 </p><a class="indexterm" name="idp6892928"></a><p>
 228 This is how the law usually works. Not often this abruptly or
 229 impatiently, but eventually, this is how it works. It was Douglas's style not to
 230 dither. Other justices would have blathered on for pages to reach the
 231
 232 conclusion that Douglas holds in a single line: <span class="quote">«<span class="quote">Common sense revolts
 233 at the idea.</span>»</span> But whether it takes pages or a few words, it is the special
 234 genius of a common law system, as ours is, that the law adjusts to the
 235 technologies of the time. And as it adjusts, it changes. Ideas that were
 236 as solid as rock in one age crumble in another.
 237 </p><a class="indexterm" name="idp6895904"></a><a class="indexterm" name="idp6896688"></a><a class="indexterm" name="idp6897504"></a><p>
 238 Or at least, this is how things happen when there's no one powerful
 239 on the other side of the change. The Causbys were just farmers. And
 240 though there were no doubt many like them who were upset by the
 241 growing traffic in the air (though one hopes not many chickens flew
 242 themselves into walls), the Causbys of the world would find it very
 243 hard to unite and stop the idea, and the technology, that the Wright
 244 brothers had birthed. The Wright brothers spat airplanes into the
 245 technological meme pool; the idea then spread like a virus in a chicken
 246 coop; farmers like the Causbys found themselves surrounded by <span class="quote">«<span class="quote">what
 247 seemed reasonable</span>»</span> given the technology that the Wrights had produced.
 248 They could stand on their farms, dead chickens in hand, and
 249 shake their fists at these newfangled technologies all they wanted.
 250 They could call their representatives or even file a lawsuit. But in the
 251 end, the force of what seems <span class="quote">«<span class="quote">obvious</span>»</span> to everyone else&#8212;the power of
 252 <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
 253 allowed to defeat an obvious public gain.
 254 </p><a class="indexterm" name="idp6901392"></a><a class="indexterm" name="idp6902720"></a><a class="indexterm" name="idp6904064"></a><a class="indexterm" name="idp6905040"></a><a class="indexterm" name="idxarmstrongedwinhoward"></a><a class="indexterm" name="idp6907248"></a><a class="indexterm" name="idp6908000"></a><a class="indexterm" name="idp6908752"></a><a class="indexterm" name="idxradiofmspectrumof"></a><p>
 255 <span class="strong"><strong>Edwin Howard Armstrong</strong></span> is one of
 256 America's forgotten inventor geniuses. He came to the great American
 257 inventor scene just after the titans Thomas Edison and Alexander
 258 Graham Bell. But his work in the area of radio technology was perhaps
 259 the most important of any single inventor in the first fifty years of
 260 radio. He was better educated than Michael Faraday, who as a
 261 bookbinder's apprentice had discovered electric induction in 1831. But
 262 he had the same intuition about how the world of radio worked, and on
 263 at least three occasions, Armstrong invented profoundly important
 264 technologies that advanced our understanding of radio.
 265
 266 </p><p>
 267 On the day after Christmas, 1933, four patents were issued to Armstrong
 268 for his most significant invention&#8212;FM radio. Until then, consumer radio
 269 had been amplitude-modulated (AM) radio. The theorists
 270 of the day had said that frequency-modulated (FM) radio could never
 271 work. They were right about FM radio in a narrow band of spectrum.
 272 But Armstrong discovered that frequency-modulated radio in a wide
 273 band of spectrum would deliver an astonishing fidelity of sound, with
 274 much less transmitter power and static.
 275 </p><p>
 276 On November 5, 1935, he demonstrated the technology at a meeting of
 277 the Institute of Radio Engineers at the Empire State Building in New
 278 York City. He tuned his radio dial across a range of AM stations,
 279 until the radio locked on a broadcast that he had arranged from
 280 seventeen miles away. The radio fell totally silent, as if dead, and
 281 then with a clarity no one else in that room had ever heard from an
 282 electrical device, it produced the sound of an announcer's voice:
 283 <span class="quote">«<span class="quote">This is amateur station W2AG at Yonkers, New York, operating on
 284 frequency modulation at two and a half meters.</span>»</span>
 285 </p><p>
 286 The audience was hearing something no one had thought possible:
 287 </p><div class="blockquote"><blockquote class="blockquote"><p>
 288 A glass of water was poured before the microphone in Yonkers; it
 289 sounded like a glass of water being poured. &#8230; A paper was crumpled
 290 and torn; it sounded like paper and not like a crackling forest
 291 fire. &#8230; Sousa marches were played from records and a piano solo
 292 and guitar number were performed. &#8230; The music was projected with a
 293 live-ness rarely if ever heard before from a radio <span class="quote">«<span class="quote">music
 294 box.</span>»</span><a href="#ftn.idp6917280" class="footnote" name="idp6917280"><sup class="footnote">[6]</sup></a>
 295 </p></blockquote></div><a class="indexterm" name="idxrca"></a><a class="indexterm" name="idxmediaownershipconcentrationin"></a><p>
 296 As our own common sense tells us, Armstrong had discovered a vastly
 297 superior radio technology. But at the time of his invention, Armstrong
 298 was working for RCA. RCA was the dominant player in the then dominant
 299 AM radio market. By 1935, there were a thousand radio stations across
 300 the United States, but the stations in large cities were all owned by
 301 a handful of networks.
 302
 303 </p><a class="indexterm" name="idp6923072"></a><p>
 304 RCA's president, David Sarnoff, a friend of Armstrong's, was eager
 305 that Armstrong discover a way to remove static from AM radio. So
 306 Sarnoff was quite excited when Armstrong told him he had a device
 307 that removed static from <span class="quote">«<span class="quote">radio.</span>»</span> But when Armstrong demonstrated
 308 his invention, Sarnoff was not pleased.
 309 </p><div class="blockquote"><blockquote class="blockquote"><p>
 310 I thought Armstrong would invent some kind of a filter to remove
 311 static from our AM radio. I didn't think he'd start a
 312 revolution&#8212; start up a whole damn new industry to compete with
 313 RCA.<a href="#ftn.idp6913872" class="footnote" name="idp6913872"><sup class="footnote">[7]</sup></a>
 314 </p></blockquote></div><a class="indexterm" name="idxfmradio"></a><a class="indexterm" name="idp6928912"></a><p>
 315 Armstrong's invention threatened RCA's AM empire, so the company
 316 launched a campaign to smother FM radio. While FM may have been a
 317 superior technology, Sarnoff was a superior tactician.  As one author
 318 described,
 319 </p><a class="indexterm" name="idxlessinglawrence"></a><div class="blockquote"><blockquote class="blockquote"><p>
 320 The forces for FM, largely engineering, could not overcome the weight
 321 of strategy devised by the sales, patent, and legal offices to subdue
 322 this threat to corporate position. For FM, if allowed to develop
 323 unrestrained, posed &#8230; a complete reordering of radio power
 324 &#8230; and the eventual overthrow of the carefully restricted AM system
 325 on which RCA had grown to power.<a href="#ftn.idp6932432" class="footnote" name="idp6932432"><sup class="footnote">[8]</sup></a>
 326 </p></blockquote></div><a class="indexterm" name="idxfcconfmradio"></a><p>
 327 RCA at first kept the technology in house, insisting that further
 328 tests were needed. When, after two years of testing, Armstrong grew
 329 impatient, RCA began to use its power with the government to stall
 330 FM radio's deployment generally. In 1936, RCA hired the former head
 331 of the FCC and assigned him the task of assuring that the FCC assign
 332 spectrum in a way that would castrate FM&#8212;principally by moving FM
 333 radio to a different band of spectrum. At first, these efforts failed. But
 334 when Armstrong and the nation were distracted by World War II,
 335 RCA's work began to be more successful. Soon after the war ended, the
 336 FCC announced a set of policies that would have one clear effect: FM
 337 radio would be crippled. As Lawrence Lessing described it,
 338 </p><div class="blockquote"><blockquote class="blockquote"><p>
 339 The series of body blows that FM radio received right after the
 340 war, in a series of rulings manipulated through the FCC by the
 341 big radio interests, were almost incredible in their force and
 342 deviousness.<a href="#ftn.idp6936976" class="footnote" name="idp6936976"><sup class="footnote">[9]</sup></a>
 343 </p></blockquote></div><a class="indexterm" name="idp6937744"></a><a class="indexterm" name="idp6938720"></a><p>
 344 To make room in the spectrum for RCA's latest gamble, television,
 345 FM radio users were to be moved to a totally new spectrum band. The
 346 power of FM radio stations was also cut, meaning FM could no longer
 347 be used to beam programs from one part of the country to another.
 348 (This change was strongly supported by AT&amp;T, because the loss of
 349 FM relaying stations would mean radio stations would have to buy
 350 wired links from AT&amp;T.) The spread of FM radio was thus choked, at
 351 least temporarily.
 352 </p><a class="indexterm" name="idp6940496"></a><a class="indexterm" name="idp6941472"></a><p>
 353 Armstrong resisted RCA's efforts. In response, RCA resisted
 354 Armstrong's patents. After incorporating FM technology into the
 355 emerging standard for television, RCA declared the patents
 356 invalid&#8212;baselessly, and almost fifteen years after they were
 357 issued. It thus refused to pay him royalties. For six years, Armstrong
 358 fought an expensive war of litigation to defend the patents. Finally,
 359 just as the patents expired, RCA offered a settlement so low that it
 360 would not even cover Armstrong's lawyers' fees. Defeated, broken, and
 361 now broke, in 1954 Armstrong wrote a short note to his wife and then
 362 stepped out of a thirteenth-story window to his death.
 363 </p><a class="indexterm" name="idp6942704"></a><a class="indexterm" name="idp6944560"></a><a class="indexterm" name="idp6945536"></a><a class="indexterm" name="idp6946288"></a><p>
 364 This is how the law sometimes works. Not often this tragically, and
 365 rarely with heroic drama, but sometimes, this is how it works. From
 366 the beginning, government and government agencies have been subject to
 367 capture. They are more likely captured when a powerful interest is
 368 threatened by either a legal or technical change. That powerful
 369 interest too often exerts its influence within the government to get
 370 the government to protect it. The rhetoric of this protection is of
 371 course always public spirited; the reality is something
 372 different. Ideas that were as solid as rock in one age, but that, left
 373 to themselves, would crumble in
 374
 375 another, are sustained through this subtle corruption of our political
 376 process. RCA had what the Causbys did not: the power to stifle the
 377 effect of technological change.
 378 </p><a class="indexterm" name="idp6949152"></a><a class="indexterm" name="idp6950128"></a><a class="indexterm" name="idxinternetdevelopmentof"></a><p>
 379 <span class="strong"><strong>There's no</strong></span> single inventor of the Internet. Nor is there any good date
 380 upon which to mark its birth. Yet in a very short time, the Internet
 381 has become part of ordinary American life. According to the Pew
 382 Internet and American Life Project, 58 percent of Americans had access
 383 to the Internet in 2002, up from 49 percent two years
 384 before.<a href="#ftn.idp6953808" class="footnote" name="idp6953808"><sup class="footnote">[10]</sup></a>
 385 That number could well exceed two thirds of the nation by the end
 386 of 2004.
 387 </p><p>
 388 As the Internet has been integrated into ordinary life, it has
 389 changed things. Some of these changes are technical&#8212;the Internet has
 390 made communication faster, it has lowered the cost of gathering data,
 391 and so on. These technical changes are not the focus of this book. They
 392 are important. They are not well understood. But they are the sort of
 393 thing that would simply go away if we all just switched the Internet off.
 394 They don't affect people who don't use the Internet, or at least they
 395 don't affect them directly. They are the proper subject of a book about
 396 the Internet. But this is not a book about the Internet.
 397 </p><p>
 398 Instead, this book is about an effect of the Internet beyond the
 399 Internet itself: an effect upon how culture is made. My claim is that
 400 the Internet has induced an important and unrecognized change in that
 401 process. That change will radically transform a tradition that is as
 402 old as the Republic itself. Most, if they recognized this change,
 403 would reject it. Yet most don't even see the change that the Internet
 404 has introduced.
 405 </p><a class="indexterm" name="idp6957616"></a><a class="indexterm" name="idp6958592"></a><a class="indexterm" name="idxculturecommercialvsnoncommercial"></a><a class="indexterm" name="idp6960832"></a><p>
 406 We can glimpse a sense of this change by distinguishing between
 407 commercial and noncommercial culture, and by mapping the law's
 408 regulation of each. By <span class="quote">«<span class="quote">commercial culture</span>»</span> I mean that part of our
 409 culture that is produced and sold or produced to be sold. By
 410 <span class="quote">«<span class="quote">noncommercial culture</span>»</span> I mean all the rest. When old men sat around
 411 parks or on
 412
 413 street corners telling stories that kids and others consumed, that was
 414 noncommercial culture. When Noah Webster published his <span class="quote">«<span class="quote">Reader,</span>»</span> or
 415 Joel Barlow his poetry, that was commercial culture.
 416 </p><p>
 417 At the beginning of our history, and for just about the whole of our
 418 tradition, noncommercial culture was essentially unregulated. Of
 419 course, if your stories were lewd, or if your song disturbed the
 420 peace, then the law might intervene. But the law was never directly
 421 concerned with the creation or spread of this form of culture, and it
 422 left this culture <span class="quote">«<span class="quote">free.</span>»</span> The ordinary ways in which ordinary
 423 individuals shared and transformed their culture&#8212;telling
 424 stories, reenacting scenes from plays or TV, participating in fan
 425 clubs, sharing music, making tapes&#8212;were left alone by the law.
 426 </p><a class="indexterm" name="idxcopyrightinfringementlawsuitscommercialcreativityasprimarypurposeof"></a><p>
 427 The focus of the law was on commercial creativity. At first slightly,
 428 then quite extensively, the law protected the incentives of creators by
 429 granting them exclusive rights to their creative work, so that they could
 430 sell those exclusive rights in a commercial
 431 marketplace.<a href="#ftn.idp6967520" class="footnote" name="idp6967520"><sup class="footnote">[11]</sup></a>
 432 This is also, of course, an important part of creativity and culture,
 433 and it has become an increasingly important part in America. But in no
 434 sense was it dominant within our tradition. It was instead just one
 435 part, a controlled part, balanced with the free.
 436 </p><a class="indexterm" name="idp6970176"></a><a class="indexterm" name="idp6971184"></a><p>
 437 This rough divide between the free and the controlled has now
 438 been erased.<a href="#ftn.idp6972448" class="footnote" name="idp6972448"><sup class="footnote">[12]</sup></a>
 439 The Internet has set the stage for this erasure and, pushed by big
 440 media, the law has now affected it. For the first time in our
 441 tradition, the ordinary ways in which individuals create and share
 442 culture fall within the reach of the regulation of the law, which has
 443 expanded to draw within its control a vast amount of culture and
 444 creativity that it never reached before. The technology that preserved
 445 the balance of our history&#8212;between uses of our culture that were
 446 free and uses of our culture that were only upon permission&#8212;has
 447 been undone.  The consequence is that we are less and less a free
 448 culture, more and more a permission culture.
 449 </p><a class="indexterm" name="idp6974384"></a><a class="indexterm" name="idp6975952"></a><a class="indexterm" name="idp6976704"></a><p>
 450 This change gets justified as necessary to protect commercial
 451 creativity.  And indeed, protectionism is precisely its
 452 motivation. But the protectionism that justifies the changes that I
 453 will describe below is not the limited and balanced sort that has
 454 defined the law in the past. This is not a protectionism to protect
 455 artists. It is instead a protectionism to protect certain forms of
 456 business. Corporations threatened by the potential of the Internet to
 457 change the way both commercial and noncommercial culture are made and
 458 shared have united to induce lawmakers to use the law to protect
 459 them. It is the story of RCA and Armstrong; it is the dream of the
 460 Causbys.
 461 </p><a class="indexterm" name="idp6978528"></a><p>
 462 For the Internet has unleashed an extraordinary possibility for many
 463 to participate in the process of building and cultivating a culture
 464 that reaches far beyond local boundaries. That power has changed the
 465 marketplace for making and cultivating culture generally, and that
 466 change in turn threatens established content industries. The Internet
 467 is thus to the industries that built and distributed content in the
 468 twentieth century what FM radio was to AM radio, or what the truck was
 469 to the railroad industry of the nineteenth century: the beginning of
 470 the end, or at least a substantial transformation. Digital
 471 technologies, tied to the Internet, could produce a vastly more
 472 competitive and vibrant market for building and cultivating culture;
 473 that market could include a much wider and more diverse range of
 474 creators; those creators could produce and distribute a much more
 475 vibrant range of creativity; and depending upon a few important
 476 factors, those creators could earn more on average from this system
 477 than creators do today&#8212;all so long as the RCAs of our day don't
 478 use the law to protect themselves against this competition.
 479 </p><p>
 480 Yet, as I argue in the pages that follow, that is precisely what is
 481 happening in our culture today. These modern-day equivalents of the
 482 early twentieth-century radio or nineteenth-century railroads are
 483 using their power to get the law to protect them against this new,
 484 more efficient, more vibrant technology for building culture. They are
 485 succeeding in their plan to remake the Internet before the Internet
 486 remakes them.
 487 </p><a class="indexterm" name="idp6982128"></a><a class="indexterm" name="idp6982992"></a><p>
 488 It doesn't seem this way to many. The battles over copyright and the
 489
 490 Internet seem remote to most. To the few who follow them, they seem
 491 mainly about a much simpler brace of questions&#8212;whether <span class="quote">«<span class="quote">piracy</span>»</span> will
 492 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
 493 has been waged against the technologies of the Internet&#8212;what
 494 Motion Picture Association of America (MPAA) president Jack Valenti
 495 calls his <span class="quote">«<span class="quote">own terrorist war</span>»</span><a href="#ftn.idp6986304" class="footnote" name="idp6986304"><sup class="footnote">[13]</sup></a>&#8212;has been framed as a battle about the
 496 rule of law and respect for property. To know which side to take in this
 497 war, most think that we need only decide whether we're for property or
 498 against it.
 499 </p><p>
 500 If those really were the choices, then I would be with Jack Valenti
 501 and the content industry. I, too, am a believer in property, and
 502 especially in the importance of what Mr. Valenti nicely calls
 503 <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
 504 law, properly tuned, should punish <span class="quote">«<span class="quote">piracy,</span>»</span> whether on or off the
 505 Internet.
 506 </p><p>
 507 But those simple beliefs mask a much more fundamental question
 508 and a much more dramatic change. My fear is that unless we come to see
 509 this change, the war to rid the world of Internet <span class="quote">«<span class="quote">pirates</span>»</span> will also rid our
 510 culture of values that have been integral to our tradition from the start.
 511 </p><a class="indexterm" name="idp6990880"></a><a class="indexterm" name="idp6991888"></a><a class="indexterm" name="idp6992896"></a><a class="indexterm" name="idp6993648"></a><p>
 512 These values built a tradition that, for at least the first 180 years of
 513 our Republic, guaranteed creators the right to build freely upon their
 514 past, and protected creators and innovators from either state or private
 515 control. The First Amendment protected creators against state control.
 516 And as Professor Neil Netanel powerfully argues,<a href="#ftn.idp6995008" class="footnote" name="idp6995008"><sup class="footnote">[14]</sup></a>
 517 copyright law, properly balanced, protected creators against private
 518 control. Our tradition was thus neither Soviet nor the tradition of
 519 patrons. It instead carved out a wide berth within which creators
 520 could cultivate and extend our culture.
 521 </p><p>
 522 Yet the law's response to the Internet, when tied to changes in the
 523 technology of the Internet itself, has massively increased the
 524 effective regulation of creativity in America. To build upon or
 525 critique the culture around us one must ask, Oliver Twist&#8211;like,
 526 for permission first.  Permission is, of course, often
 527 granted&#8212;but it is not often granted to the critical or the
 528 independent. We have built a kind of cultural nobility; those within
 529 the noble class live easily; those outside it don't. But it is
 530 nobility of any form that is alien to our tradition.
 531 </p><p>
 532 The story that follows is about this war. It is not about the
 533 <span class="quote">«<span class="quote">centrality of technology</span>»</span> to ordinary life. I don't believe in gods,
 534 digital or otherwise. Nor is it an effort to demonize any individual
 535 or group, for neither do I believe in a devil, corporate or
 536 otherwise. It is not a morality tale. Nor is it a call to jihad
 537 against an industry.
 538 </p><p>
 539 It is instead an effort to understand a hopelessly destructive war
 540 inspired by the technologies of the Internet but reaching far beyond
 541 its code. And by understanding this battle, it is an effort to map
 542 peace.  There is no good reason for the current struggle around
 543 Internet technologies to continue. There will be great harm to our
 544 tradition and culture if it is allowed to continue unchecked. We must
 545 come to understand the source of this war. We must resolve it soon.
 546 </p><a class="indexterm" name="idp7000912"></a><a class="indexterm" name="idp7001664"></a><a class="indexterm" name="idxintellectualpropertyrights"></a><p>
 547 <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
 548 property of this war is not as tangible as the Causbys', and no
 549 innocent chicken has yet to lose its life. Yet the ideas surrounding
 550 this <span class="quote">«<span class="quote">property</span>»</span> are as obvious to most as the Causbys' claim about the
 551 sacredness of their farm was to them. We are the Causbys. Most of us
 552 take for granted the extraordinarily powerful claims that the owners
 553 of <span class="quote">«<span class="quote">intellectual property</span>»</span> now assert. Most of us, like the Causbys,
 554 treat these claims as obvious. And hence we, like the Causbys, object
 555 when a new technology interferes with this property. It is as plain to
 556 us as it was to them that the new technologies of the Internet are
 557 <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
 558 us as it was to them that the law should intervene to stop this
 559 trespass.
 560 </p><a class="indexterm" name="idp7007328"></a><a class="indexterm" name="idp7008080"></a><a class="indexterm" name="idp7008832"></a><p>
 561 And thus, when geeks and technologists defend their Armstrong or
 562 Wright brothers technology, most of us are simply unsympathetic.
 563 Common sense does not revolt. Unlike in the case of the unlucky
 564 Causbys, common sense is on the side of the property owners in this
 565 war. Unlike
 566
 567 the lucky Wright brothers, the Internet has not inspired a revolution
 568 on its side.
 569 </p><a class="indexterm" name="idp7010608"></a><p>
 570 My hope is to push this common sense along. I have become increasingly
 571 amazed by the power of this idea of intellectual property and, more
 572 importantly, its power to disable critical thought by policy makers
 573 and citizens. There has never been a time in our history when more of
 574 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
 575 been a time when the concentration of power to control the
 576 <span class="emphasis"><em>uses</em></span> of culture has been as unquestioningly
 577 accepted as it is now.
 578 </p><p>
 579 The puzzle is, Why?  Is it because we have come to understand a truth
 580 about the value and importance of absolute property over ideas and
 581 culture? Is it because we have discovered that our tradition of
 582 rejecting such an absolute claim was wrong?
 583 </p><p>
 584 Or is it because the idea of absolute property over ideas and culture
 585 benefits the RCAs of our time and fits our own unreflective intuitions?
 586 </p><p>
 587 Is the radical shift away from our tradition of free culture an instance
 588 of America correcting a mistake from its past, as we did after a bloody
 589 war with slavery, and as we are slowly doing with inequality? Or is the
 590 radical shift away from our tradition of free culture yet another example
 591 of a political system captured by a few powerful special interests?
 592 </p><p>
 593 Does common sense lead to the extremes on this question because common
 594 sense actually believes in these extremes? Or does common sense stand
 595 silent in the face of these extremes because, as with Armstrong versus
 596 RCA, the more powerful side has ensured that it has the more powerful
 597 view?
 598 </p><a class="indexterm" name="idp7016032"></a><a class="indexterm" name="idp7016784"></a><p>
 599 I don't mean to be mysterious. My own views are resolved. I believe it
 600 was right for common sense to revolt against the extremism of the
 601 Causbys. I believe it would be right for common sense to revolt
 602 against the extreme claims made today on behalf of <span class="quote">«<span class="quote">intellectual
 603 property.</span>»</span>  What the law demands today is increasingly as silly as a
 604 sheriff arresting an airplane for trespass. But the consequences of
 605 this silliness will be much more profound.
 606
 607 </p><a class="indexterm" name="idp7019024"></a><p>
 608 <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
 609 <span class="quote">«<span class="quote">property.</span>»</span> My aim in this book's next two parts is to explore these two
 610 ideas.
 611 </p><p>
 612 My method is not the usual method of an academic. I don't want to
 613 plunge you into a complex argument, buttressed with references to
 614 obscure French theorists&#8212;however natural that is for the weird
 615 sort we academics have become. Instead I begin in each part with a
 616 collection of stories that set a context within which these apparently
 617 simple ideas can be more fully understood.
 618 </p><p>
 619 The two sections set up the core claim of this book: that while the
 620 Internet has indeed produced something fantastic and new, our
 621 government, pushed by big media to respond to this <span class="quote">«<span class="quote">something new,</span>»</span> is
 622 destroying something very old. Rather than understanding the changes
 623 the Internet might permit, and rather than taking time to let <span class="quote">«<span class="quote">common
 624 sense</span>»</span> resolve how best to respond, we are allowing those most
 625 threatened by the changes to use their power to change the
 626 law&#8212;and more importantly, to use their power to change something
 627 fundamental about who we have always been.
 628 </p><p>
 629 We allow this, I believe, not because it is right, and not because
 630 most of us really believe in these changes. We allow it because the
 631 interests most threatened are among the most powerful players in our
 632 depressingly compromised process of making law. This book is the story
 633 of one more consequence of this form of corruption&#8212;a consequence
 634 to which most of us remain oblivious.
 635 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp6874288" class="footnote"><p><a href="#idp6874288" class="para"><sup class="para">[4] </sup></a>
 636 St. George Tucker, <em class="citetitle">Blackstone's Commentaries</em> 3 (South Hackensack, N.J.:
 637 Rothman Reprints, 1969), 18.
 638 </p></div><div id="ftn.idp6887680" class="footnote"><p><a href="#idp6887680" class="para"><sup class="para">[5] </sup></a>
 639 United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find
 640 that there could be a <span class="quote">«<span class="quote">taking</span>»</span> if the government's use of its land
 641 effectively destroyed the value of the Causbys' land. This example was
 642 suggested to me by Keith Aoki's wonderful piece, <span class="quote">«<span class="quote">(Intellectual)
 643 Property and Sovereignty: Notes Toward a Cultural Geography of
 644 Authorship,</span>»</span> <em class="citetitle">Stanford Law Review</em> 48 (1996): 1293, 1333. See also Paul
 645 Goldstein, <em class="citetitle">Real Property</em> (Mineola, N.Y.: Foundation Press, 1984),
 646 1112&#8211;13.
 647 <a class="indexterm" name="idp6891024"></a>
 648 <a class="indexterm" name="idp6890640"></a>
 649 </p></div><div id="ftn.idp6917280" class="footnote"><p><a href="#idp6917280" class="para"><sup class="para">[6] </sup></a>
 650 Lawrence Lessing, <em class="citetitle">Man of High Fidelity: Edwin Howard Armstrong</em>
 651 (Philadelphia: J. B. Lipincott Company, 1956), 209.
 652 </p></div><div id="ftn.idp6913872" class="footnote"><p><a href="#idp6913872" class="para"><sup class="para">[7] </sup></a> See <span class="quote">«<span class="quote">Saints: The Heroes and Geniuses of the
 653 Electronic Era,</span>»</span> First Electronic Church of America, at
 654 www.webstationone.com/fecha, available at
 655
 656 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #1</a>.
 657 </p></div><div id="ftn.idp6932432" class="footnote"><p><a href="#idp6932432" class="para"><sup class="para">[8] </sup></a>Lessing, 226.
 658 </p></div><div id="ftn.idp6936976" class="footnote"><p><a href="#idp6936976" class="para"><sup class="para">[9] </sup></a>
 659 Lessing, 256.
 660 </p></div><div id="ftn.idp6953808" class="footnote"><p><a href="#idp6953808" class="para"><sup class="para">[10] </sup></a>
 661 Amanda Lenhart, <span class="quote">«<span class="quote">The Ever-Shifting Internet Population: A New Look at
 662 Internet Access and the Digital Divide,</span>»</span> Pew Internet and American
 663 Life Project, 15 April 2003: 6, available at
 664 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #2</a>.
 665 </p></div><div id="ftn.idp6967520" class="footnote"><p><a href="#idp6967520" class="para"><sup class="para">[11] </sup></a>
 666 This is not the only purpose of copyright, though it is the overwhelmingly
 667 primary purpose of the copyright established in the federal constitution.
 668 State copyright law historically protected not just the commercial interest in
 669 publication, but also a privacy interest. By granting authors the exclusive
 670 right to first publication, state copyright law gave authors the power to
 671 control the spread of facts about them. See Samuel D. Warren and Louis
 672 D. Brandeis, <span class="quote">«<span class="quote">The Right to Privacy,</span>»</span> Harvard Law Review 4 (1890): 193,
 673 198&#8211;200.
 674 <a class="indexterm" name="idp6890896"></a>
 675 </p></div><div id="ftn.idp6972448" class="footnote"><p><a href="#idp6972448" class="para"><sup class="para">[12] </sup></a>
 676 See Jessica Litman, <em class="citetitle">Digital Copyright</em> (New York: Prometheus Books,
 677 2001), ch. 13.
 678 <a class="indexterm" name="idp6973216"></a>
 679 </p></div><div id="ftn.idp6986304" class="footnote"><p><a href="#idp6986304" class="para"><sup class="para">[13] </sup></a>
 680 Amy Harmon, <span class="quote">«<span class="quote">Black Hawk Download: Moving Beyond Music, Pirates
 681 Use New Tools to Turn the Net into an Illicit Video Club,</span>»</span> <em class="citetitle">New York
 682 Times</em>, 17 January 2002.
 683 </p></div><div id="ftn.idp6995008" class="footnote"><p><a href="#idp6995008" class="para"><sup class="para">[14] </sup></a>
 684 Neil W. Netanel, <span class="quote">«<span class="quote">Copyright and a Democratic Civil Society,</span>»</span> <em class="citetitle">Yale Law
 685 Journal</em> 106 (1996): 283.
 686 <a class="indexterm" name="idp6996288"></a>
 687 </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="idp7027184"></a><a class="indexterm" name="idxmansfieldwilliammurraylord"></a><a class="indexterm" name="idp7029424"></a><a class="indexterm" name="idp7030176"></a><p>
 688 <span class="strong"><strong>Since the inception</strong></span> of the law regulating creative property, there has
 689 been a war against <span class="quote">«<span class="quote">piracy.</span>»</span> The precise contours of this concept,
 690 <span class="quote">«<span class="quote">piracy,</span>»</span> are hard to sketch, but the animating injustice is easy to
 691 capture.  As Lord Mansfield wrote in a case that extended the reach of
 692 English copyright law to include sheet music,
 693 </p><div class="blockquote"><blockquote class="blockquote"><p>
 694 A person may use the copy by playing it, but he has no right to
 695 rob the author of the profit, by multiplying copies and disposing
 696 of them for his own use.<a href="#ftn.idp7033664" class="footnote" name="idp7033664"><sup class="footnote">[15]</sup></a>
 697 </p><a class="indexterm" name="idp7035328"></a></blockquote></div><a class="indexterm" name="idp7036432"></a><a class="indexterm" name="idxpeertopeerppfilesharingefficiencyof"></a><p>
 698 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
 699 Internet has provoked this war. The Internet makes possible the
 700 efficient spread of content. Peer-to-peer (p2p) file sharing is among
 701 the most efficient of the efficient technologies the Internet
 702 enables. Using distributed intelligence, p2p systems facilitate the
 703 easy spread of content in a way unimagined a generation ago.
 704
 705 </p><p>
 706 This efficiency does not respect the traditional lines of copyright.
 707 The network doesn't discriminate between the sharing of copyrighted
 708 and uncopyrighted content. Thus has there been a vast amount of
 709 sharing of copyrighted content. That sharing in turn has excited the
 710 war, as copyright owners fear the sharing will <span class="quote">«<span class="quote">rob the author of the
 711 profit.</span>»</span>
 712 </p><a class="indexterm" name="idp7041792"></a><p>
 713 The warriors have turned to the courts, to the legislatures, and
 714 increasingly to technology to defend their <span class="quote">«<span class="quote">property</span>»</span> against this
 715 <span class="quote">«<span class="quote">piracy.</span>»</span>  A generation of Americans, the warriors warn, is being
 716 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,
 717 never mind body piercing&#8212;our kids are becoming
 718 <span class="emphasis"><em>thieves</em></span>!
 719 </p><p>
 720 There's no doubt that <span class="quote">«<span class="quote">piracy</span>»</span> is wrong, and that pirates should be
 721 punished. But before we summon the executioners, we should put this
 722 notion of <span class="quote">«<span class="quote">piracy</span>»</span> in some context. For as the concept is increasingly
 723 used, at its core is an extraordinary idea that is almost certainly wrong.
 724 </p><p>
 725 The idea goes something like this:
 726 </p><div class="blockquote"><blockquote class="blockquote"><p>
 727 Creative work has value; whenever I use, or take, or build upon
 728 the creative work of others, I am taking from them something of
 729 value. Whenever I take something of value from someone else, I
 730 should have their permission. The taking of something of value
 731 from someone else without permission is wrong. It is a form of
 732 piracy.
 733 </p></blockquote></div><a class="indexterm" name="idp7048288"></a><a class="indexterm" name="idp7049040"></a><a class="indexterm" name="idp7049792"></a><a class="indexterm" name="idxcreativepropertyifvaluethenrighttheoryof"></a><a class="indexterm" name="idxifvaluethenrighttheory"></a><p>
 734 This view runs deep within the current debates. It is what NYU law
 735 professor Rochelle Dreyfuss criticizes as the <span class="quote">«<span class="quote">if value, then right</span>»</span>
 736 theory of creative property<a href="#ftn.idp7054544" class="footnote" name="idp7054544"><sup class="footnote">[16]</sup></a>
 737 &#8212;if there is value, then someone must have a
 738 right to that value. It is the perspective that led a composers' rights
 739 organization, ASCAP, to sue the Girl Scouts for failing to pay for the
 740 songs that girls sang around Girl Scout campfires.<a href="#ftn.idp7044784" class="footnote" name="idp7044784"><sup class="footnote">[17]</sup></a>
 741 There was <span class="quote">«<span class="quote">value</span>»</span> (the songs) so there must have been a
 742 <span class="quote">«<span class="quote">right</span>»</span>&#8212;even against the Girl Scouts.
 743 </p><a class="indexterm" name="idp7061168"></a><p>
 744 This idea is certainly a possible understanding of how creative
 745 property should work. It might well be a possible design for a system
 746
 747 of law protecting creative property. But the <span class="quote">«<span class="quote">if value, then right</span>»</span>
 748 theory of creative property has never been America's theory of
 749 creative property.  It has never taken hold within our law.
 750 </p><a class="indexterm" name="idp7063456"></a><a class="indexterm" name="idxcopyrightlawonrepublishingvstransformationoforiginalwork"></a><a class="indexterm" name="idxcreativitylegalrestrictionson"></a><p>
 751 Instead, in our tradition, intellectual property is an instrument. It
 752 sets the groundwork for a richly creative society but remains
 753 subservient to the value of creativity. The current debate has this
 754 turned around. We have become so concerned with protecting the
 755 instrument that we are losing sight of the value.
 756 </p><p>
 757 The source of this confusion is a distinction that the law no longer
 758 takes care to draw&#8212;the distinction between republishing someone's
 759 work on the one hand and building upon or transforming that work on
 760 the other. Copyright law at its birth had only publishing as its concern;
 761 copyright law today regulates both.
 762 </p><a class="indexterm" name="idp7069200"></a><p>
 763 Before the technologies of the Internet, this conflation didn't matter
 764 all that much. The technologies of publishing were expensive; that
 765 meant the vast majority of publishing was commercial. Commercial
 766 entities could bear the burden of the law&#8212;even the burden of the
 767 Byzantine complexity that copyright law has become. It was just one
 768 more expense of doing business.
 769 </p><a class="indexterm" name="idp7070480"></a><a class="indexterm" name="idp7072016"></a><a class="indexterm" name="idp7072768"></a><p>
 770 But with the birth of the Internet, this natural limit to the reach of
 771 the law has disappeared. The law controls not just the creativity of
 772 commercial creators but effectively that of anyone. Although that
 773 expansion would not matter much if copyright law regulated only
 774 <span class="quote">«<span class="quote">copying,</span>»</span> when the law regulates as broadly and obscurely as it does,
 775 the extension matters a lot. The burden of this law now vastly
 776 outweighs any original benefit&#8212;certainly as it affects
 777 noncommercial creativity, and increasingly as it affects commercial
 778 creativity as well. Thus, as we'll see more clearly in the chapters
 779 below, the law's role is less and less to support creativity, and more
 780 and more to protect certain industries against competition. Just at
 781 the time digital technology could unleash an extraordinary range of
 782 commercial and noncommercial creativity, the law burdens this
 783 creativity with insanely complex and vague rules and with the threat
 784 of obscenely severe penalties. We may
 785
 786 be seeing, as Richard Florida writes, the <span class="quote">«<span class="quote">Rise of the Creative
 787 Class.</span>»</span><a href="#ftn.idp7076416" class="footnote" name="idp7076416"><sup class="footnote">[18]</sup></a>
 788 Unfortunately, we are also seeing an extraordinary rise of regulation of
 789 this creative class.
 790 </p><a class="indexterm" name="idp7079856"></a><p>
 791 These burdens make no sense in our tradition. We should begin by
 792 understanding that tradition a bit more and by placing in their proper
 793 context the current battles about behavior labeled <span class="quote">«<span class="quote">piracy.</span>»</span>
 794 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7033664" class="footnote"><p><a href="#idp7033664" class="para"><sup class="para">[15] </sup></a>
 795
 796 <em class="citetitle">Bach</em> v. <em class="citetitle">Longman</em>, 98 Eng. Rep. 1274 (1777) (Mansfield).
 797 </p></div><div id="ftn.idp7054544" class="footnote"><p><a href="#idp7054544" class="para"><sup class="para">[16] </sup></a>
 798
 799 See Rochelle Dreyfuss, <span class="quote">«<span class="quote">Expressive Genericity: Trademarks as Language
 800 in the Pepsi Generation,</span>»</span> <em class="citetitle">Notre Dame Law Review</em> 65 (1990): 397.
 801 </p></div><div id="ftn.idp7044784" class="footnote"><p><a href="#idp7044784" class="para"><sup class="para">[17] </sup></a>
 802
 803 Lisa Bannon, <span class="quote">«<span class="quote">The Birds May Sing, but Campers Can't Unless They Pay
 804 Up,</span>»</span> <em class="citetitle">Wall Street Journal</em>, 21 August 1996, available at
 805 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #3</a>; Jonathan
 806 Zittrain, <span class="quote">«<span class="quote">Calling Off the Copyright War: In Battle of Property vs. Free
 807 Speech, No One Wins,</span>»</span> <em class="citetitle">Boston Globe</em>, 24 November 2002.
 808 <a class="indexterm" name="idp7059392"></a>
 809 </p></div><div id="ftn.idp7076416" class="footnote"><p><a href="#idp7076416" class="para"><sup class="para">[18] </sup></a>
 810
 811 In <em class="citetitle">The Rise of the Creative Class</em> (New York:
 812 Basic Books, 2002), Richard Florida documents a shift in the nature of
 813 labor toward a labor of creativity.  His work, however, doesn't
 814 directly address the legal conditions under which that creativity is
 815 enabled or stifled. I certainly agree with him about the importance
 816 and significance of this change, but I also believe the conditions
 817 under which it will be enabled are much more tenuous.
 818
 819 <a class="indexterm" name="idp7077984"></a>
 820 <a class="indexterm" name="idp7078736"></a>
 821 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="creators"></a>Chapter 1. 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>
 822 <span class="strong"><strong>In 1928</strong></span>, a cartoon character was born. An early Mickey Mouse
 823 made his debut in May of that year, in a silent flop called <em class="citetitle">Plane Crazy</em>.
 824 In November, in New York City's Colony Theater, in the first widely
 825 distributed cartoon synchronized with sound, <em class="citetitle">Steamboat Willie</em> brought
 826 to life the character that would become Mickey Mouse.
 827 </p><a class="indexterm" name="idxdisneywalt"></a><p>
 828 Synchronized sound had been introduced to film a year earlier in the
 829 movie <em class="citetitle">The Jazz Singer</em>. That success led Walt Disney to copy the
 830 technique and mix sound with cartoons. No one knew whether it would
 831 work or, if it did work, whether it would win an audience. But when
 832 Disney ran a test in the summer of 1928, the results were unambiguous.
 833 As Disney describes that first experiment,
 834 </p><div class="blockquote"><blockquote class="blockquote"><p>
 835 A couple of my boys could read music, and one of them could play
 836 a mouth organ. We put them in a room where they could not see
 837 the screen and arranged to pipe their sound into the room where
 838 our wives and friends were going to see the picture.
 839
 840 </p><p>
 841 The boys worked from a music and sound-effects score. After several
 842 false starts, sound and action got off with the gun. The mouth
 843 organist played the tune, the rest of us in the sound department
 844 bammed tin pans and blew slide whistles on the beat.  The
 845 synchronization was pretty close.
 846 </p><p>
 847 The effect on our little audience was nothing less than electric.
 848 They responded almost instinctively to this union of sound and
 849 motion. I thought they were kidding me. So they put me in the audience
 850 and ran the action again. It was terrible, but it was wonderful! And
 851 it was something new!<a href="#ftn.idp7096560" class="footnote" name="idp7096560"><sup class="footnote">[19]</sup></a>
 852 </p></blockquote></div><a class="indexterm" name="idp7098048"></a><p>
 853 Disney's then partner, and one of animation's most extraordinary
 854 talents, Ub Iwerks, put it more strongly: <span class="quote">«<span class="quote">I have never been so thrilled
 855 in my life. Nothing since has ever equaled it.</span>»</span>
 856 </p><p>
 857 Disney had created something very new, based upon something relatively
 858 new. Synchronized sound brought life to a form of creativity that had
 859 rarely&#8212;except in Disney's hands&#8212;been anything more than
 860 filler for other films. Throughout animation's early history, it was
 861 Disney's invention that set the standard that others struggled to
 862 match.  And quite often, Disney's great genius, his spark of
 863 creativity, was built upon the work of others.
 864 </p><a class="indexterm" name="idp7100048"></a><a class="indexterm" name="idxkeatonbuster"></a><a class="indexterm" name="idxsteamboatbilljr"></a><p>
 865 This much is familiar. What you might not know is that 1928 also marks
 866 another important transition. In that year, a comic (as opposed to
 867 cartoon) genius created his last independently produced silent film.
 868 That genius was Buster Keaton. The film was <em class="citetitle">Steamboat Bill, Jr</em>.
 869 </p><p>
 870 Keaton was born into a vaudeville family in 1895. In the era of silent
 871 film, he had mastered using broad physical comedy as a way to spark
 872 uncontrollable laughter from his audience. <em class="citetitle">Steamboat Bill,
 873 Jr</em>. was a classic of this form, famous among film buffs for its
 874 incredible stunts.  The film was classic Keaton&#8212;wildly popular
 875 and among the best of its genre.
 876 </p><a class="indexterm" name="idxderivativeworkspiracyvs"></a><a class="indexterm" name="idxpiracyderivativeworkvs"></a><p>
 877 <em class="citetitle">Steamboat Bill, Jr</em>. appeared before Disney's cartoon Steamboat
 878 Willie.
 879
 880 The coincidence of titles is not coincidental. Steamboat Willie is a
 881 direct cartoon parody of Steamboat Bill,<a href="#ftn.idp7110288" class="footnote" name="idp7110288"><sup class="footnote">[20]</sup></a>
 882 and both are built upon a common song as a source. It is not just from
 883 the invention of synchronized sound in <em class="citetitle">The Jazz Singer</em> that we
 884 get <em class="citetitle">Steamboat Willie</em>. It is also from Buster Keaton's invention of
 885 Steamboat Bill, Jr., itself inspired by the song <span class="quote">«<span class="quote">Steamboat Bill,</span>»</span>
 886 that we get Steamboat Willie, and then from Steamboat Willie, Mickey
 887 Mouse.
 888 </p><a class="indexterm" name="idp7116336"></a><a class="indexterm" name="idp7117312"></a><a class="indexterm" name="idp7118288"></a><a class="indexterm" name="idp7119264"></a><a class="indexterm" name="idxcreativitybytransformingpreviousworks"></a><a class="indexterm" name="idxdisneyinc"></a><p>
 889 This <span class="quote">«<span class="quote">borrowing</span>»</span> was nothing unique, either for Disney or for the
 890 industry. Disney was always parroting the feature-length mainstream
 891 films of his day.<a href="#ftn.idp7123744" class="footnote" name="idp7123744"><sup class="footnote">[21]</sup></a>
 892 So did many others. Early cartoons are filled with
 893 knockoffs&#8212;slight variations on winning themes; retellings of
 894 ancient stories. The key to success was the brilliance of the
 895 differences. With Disney, it was sound that gave his animation its
 896 spark. Later, it was the quality of his work relative to the
 897 production-line cartoons with which he competed. Yet these additions
 898 were built upon a base that was borrowed.  Disney added to the work of
 899 others before him, creating something new out of something just barely
 900 old.
 901 </p><a class="indexterm" name="idxgrimmfairytales"></a><p>
 902 Sometimes this borrowing was slight. Sometimes it was significant.
 903 Think about the fairy tales of the Brothers Grimm. If you're as
 904 oblivious as I was, you're likely to think that these tales are happy,
 905 sweet stories, appropriate for any child at bedtime. In fact, the
 906 Grimm fairy tales are, well, for us, grim. It is a rare and perhaps
 907 overly ambitious parent who would dare to read these bloody,
 908 moralistic stories to his or her child, at bedtime or anytime.
 909 </p><p>
 910 Disney took these stories and retold them in a way that carried them
 911 into a new age. He animated the stories, with both characters and
 912 light. Without removing the elements of fear and danger altogether, he
 913 made funny what was dark and injected a genuine emotion of compassion
 914 where before there was fear. And not just with the work of the
 915 Brothers Grimm. Indeed, the catalog of Disney work drawing upon the
 916 work of others is astonishing when set together: <em class="citetitle">Snow White</em>
 917 (1937), <em class="citetitle">Fantasia</em> (1940), <em class="citetitle">Pinocchio</em> (1940), <em class="citetitle">Dumbo</em>
 918 (1941), <em class="citetitle">Bambi</em> (1942), <em class="citetitle">Song of the South</em> (1946),
 919 <em class="citetitle">Cinderella</em> (1950), <em class="citetitle">Alice in Wonderland</em> (1951), <em class="citetitle">Robin
 920 Hood</em> (1952), <em class="citetitle">Peter Pan</em> (1953), <em class="citetitle">Lady and the Tramp</em>
 921
 922 (1955), <em class="citetitle">Mulan</em> (1998), <em class="citetitle">Sleeping Beauty</em> (1959), <em class="citetitle">101
 923 Dalmatians</em> (1961), <em class="citetitle">The Sword in the Stone</em> (1963), and
 924 <em class="citetitle">The Jungle Book</em> (1967)&#8212;not to mention a recent example
 925 that we should perhaps quickly forget, <em class="citetitle">Treasure Planet</em>
 926 (2003). In all of these cases, Disney (or Disney, Inc.) ripped
 927 creativity from the culture around him, mixed that creativity with his
 928 own extraordinary talent, and then burned that mix into the soul of
 929 his culture. Rip, mix, and burn.
 930 </p><a class="indexterm" name="idp7136448"></a><p>
 931 This is a kind of creativity. It is a creativity that we should
 932 remember and celebrate. There are some who would say that there is no
 933 creativity except this kind. We don't need to go that far to recognize
 934 its importance. We could call this <span class="quote">«<span class="quote">Disney creativity,</span>»</span> though that
 935 would be a bit misleading. It is, more precisely, <span class="quote">«<span class="quote">Walt Disney
 936 creativity</span>»</span>&#8212;a form of expression and genius that builds upon the
 937 culture around us and makes it something different.
 938 </p><a class="indexterm" name="idp7138960"></a><a class="indexterm" name="idp7139936"></a><a class="indexterm" name="idp7140912"></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
 939 relatively fresh. The public domain in 1928 was not very old and was
 940 therefore quite vibrant. The average term of copyright was just around
 941 thirty years&#8212;for that minority of creative work that was in fact
 942 copyrighted.<a href="#ftn.idp7138576" class="footnote" name="idp7138576"><sup class="footnote">[22]</sup></a>
 943 That means that for thirty years, on average, the authors or
 944 copyright holders of a creative work had an <span class="quote">«<span class="quote">exclusive right</span>»</span> to control
 945 certain uses of the work. To use this copyrighted work in limited ways
 946 required the permission of the copyright owner.
 947 </p><p>
 948 At the end of a copyright term, a work passes into the public domain.
 949 No permission is then needed to draw upon or use that work. No
 950 permission and, hence, no lawyers. The public domain is a <span class="quote">«<span class="quote">lawyer-free
 951 zone.</span>»</span> Thus, most of the content from the nineteenth century was free
 952 for Disney to use and build upon in 1928. It was free for
 953 anyone&#8212; whether connected or not, whether rich or not, whether
 954 approved or not&#8212;to use and build upon.
 955 </p><a class="indexterm" name="idp7150928"></a><a class="indexterm" name="idp7152288"></a><p>
 956 This is the ways things always were&#8212;until quite recently. For most
 957 of our history, the public domain was just over the horizon. From
 958 until 1978, the average copyright term was never more than thirty-two
 959 years, meaning that most culture just a generation and a half old was
 960
 961
 962 free for anyone to build upon without the permission of anyone else.
 963 Today's equivalent would be for creative work from the 1960s and 1970s
 964 to now be free for the next Walt Disney to build upon without
 965 permission. Yet today, the public domain is presumptive only for
 966 content from before the Great Depression.
 967 </p><a class="indexterm" name="idp7154512"></a><a class="indexterm" name="idp7155488"></a><a class="indexterm" name="idp7156464"></a><a class="indexterm" name="idp7157440"></a><a class="indexterm" name="idp7158416"></a><a class="indexterm" name="idp7159392"></a><p>
 968 <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>
 969 Nor does America. The norm of free culture has, until recently, and
 970 except within totalitarian nations, been broadly exploited and quite
 971 universal.
 972 </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>
 973 Consider, for example, a form of creativity that seems strange to many
 974 Americans but that is inescapable within Japanese culture: <em class="citetitle">manga</em>, or
 975 comics. The Japanese are fanatics about comics. Some 40 percent of
 976 publications are comics, and 30 percent of publication revenue derives
 977 from comics. They are everywhere in Japanese society, at every
 978 magazine stand, carried by a large proportion of commuters on Japan's
 979 extraordinary system of public transportation.
 980 </p><p>
 981 Americans tend to look down upon this form of culture. That's an
 982 unattractive characteristic of ours. We're likely to misunderstand
 983 much about manga, because few of us have ever read anything close to
 984 the stories that these <span class="quote">«<span class="quote">graphic novels</span>»</span> tell. For the Japanese, manga
 985 cover every aspect of social life. For us, comics are <span class="quote">«<span class="quote">men in tights.</span>»</span>
 986 And anyway, it's not as if the New York subways are filled with
 987 readers of Joyce or even Hemingway. People of different cultures
 988 distract themselves in different ways, the Japanese in this
 989 interestingly different way.
 990 </p><p>
 991 But my purpose here is not to understand manga. It is to describe a
 992 variant on manga that from a lawyer's perspective is quite odd, but
 993 from a Disney perspective is quite familiar.
 994 </p><a class="indexterm" name="idxcreativitybytransformingpreviousworks2"></a><a class="indexterm" name="idxdoujinshicomics"></a><p>
 995 This is the phenomenon of <em class="citetitle">doujinshi</em>. Doujinshi are also comics, but
 996 they are a kind of copycat comic. A rich ethic governs the creation of
 997 doujinshi. It is not doujinshi if it is <span class="emphasis"><em>just</em></span> a
 998 copy; the artist must make a contribution to the art he copies, by
 999 transforming it either subtly or
1000
1001 significantly. A doujinshi comic can thus take a mainstream comic and
1002 develop it differently&#8212;with a different story line. Or the comic can
1003 keep the character in character but change its look slightly. There is no
1004 formula for what makes the doujinshi sufficiently <span class="quote">«<span class="quote">different.</span>»</span> But they
1005 must be different if they are to be considered true doujinshi. Indeed,
1006 there are committees that review doujinshi for inclusion within shows
1007 and reject any copycat comic that is merely a copy.
1008 </p><a class="indexterm" name="idxdisneywalt2"></a><p>
1009 These copycat comics are not a tiny part of the manga market. They are
1010 huge. More than 33,000 <span class="quote">«<span class="quote">circles</span>»</span> of creators from across Japan produce
1011 these bits of Walt Disney creativity. More than 450,000 Japanese come
1012 together twice a year, in the largest public gathering in the country,
1013 to exchange and sell them. This market exists in parallel to the
1014 mainstream commercial manga market. In some ways, it obviously
1015 competes with that market, but there is no sustained effort by those
1016 who control the commercial manga market to shut the doujinshi market
1017 down. It flourishes, despite the competition and despite the law.
1018 </p><a class="indexterm" name="idxcopyrightlawjapanese"></a><a class="indexterm" name="idp7181248"></a><p>
1019 The most puzzling feature of the doujinshi market, for those trained
1020 in the law, at least, is that it is allowed to exist at all. Under
1021 Japanese copyright law, which in this respect (on paper) mirrors
1022 American copyright law, the doujinshi market is an illegal
1023 one. Doujinshi are plainly <span class="quote">«<span class="quote">derivative works.</span>»</span> There is no general
1024 practice by doujinshi artists of securing the permission of the manga
1025 creators. Instead, the practice is simply to take and modify the
1026 creations of others, as Walt Disney did with <em class="citetitle">Steamboat Bill,
1027 Jr</em>. Under both Japanese and American law, that <span class="quote">«<span class="quote">taking</span>»</span> without
1028 the permission of the original copyright owner is illegal. It is an
1029 infringement of the original copyright to make a copy or a derivative
1030 work without the original copyright owner's permission.
1031 </p><a class="indexterm" name="idp7184288"></a><a class="indexterm" name="idxwinickjudd"></a><p>
1032 Yet this illegal market exists and indeed flourishes in Japan, and in
1033 the view of many, it is precisely because it exists that Japanese manga
1034 flourish. As American graphic novelist Judd Winick said to me, <span class="quote">«<span class="quote">The
1035 early days of comics in America are very much like what's going on
1036 in Japan now. &#8230; American  comics were born out of copying each
1037
1038 other. &#8230; That's how [the artists] learn to draw &#8212; by going into comic
1039 books and not tracing them, but looking at them and copying them</span>»</span>
1040 and building from them.<a href="#ftn.idp7188032" class="footnote" name="idp7188032"><sup class="footnote">[23]</sup></a>
1041 </p><a class="indexterm" name="idp7189312"></a><a class="indexterm" name="idp7190288"></a><p>
1042 American comics now are quite different, Winick explains, in part
1043 because of the legal difficulty of adapting comics the way doujinshi are
1044 allowed. Speaking of Superman, Winick told me, <span class="quote">«<span class="quote">there are these rules
1045 and you have to stick to them.</span>»</span> There are things Superman <span class="quote">«<span class="quote">cannot</span>»</span>
1046 do. <span class="quote">«<span class="quote">As a creator, it's frustrating having to stick to some parameters
1047 which are fifty years old.</span>»</span>
1048 </p><a class="indexterm" name="idp7192896"></a><a class="indexterm" name="idxcopyrightlawjapanese2"></a><a class="indexterm" name="idp7195360"></a><a class="indexterm" name="idxmehrasalil"></a><p>
1049 The norm in Japan mitigates this legal difficulty. Some say it is
1050 precisely the benefit accruing to the Japanese manga market that
1051 explains the mitigation. Temple University law professor Salil Mehra,
1052 for example, hypothesizes that the manga market accepts these
1053 technical violations because they spur the manga market to be more
1054 wealthy and productive. Everyone would be worse off if doujinshi were
1055 banned, so the law does not ban doujinshi.<a href="#ftn.idp7198064" class="footnote" name="idp7198064"><sup class="footnote">[24]</sup></a>
1056 </p><a class="indexterm" name="idp7200592"></a><a class="indexterm" name="idp7201568"></a><a class="indexterm" name="idp7202544"></a><p>
1057 The problem with this story, however, as Mehra plainly acknowledges,
1058 is that the mechanism producing this laissez faire response is not
1059 clear. It may well be that the market as a whole is better off if
1060 doujinshi are permitted rather than banned, but that doesn't explain
1061 why individual copyright owners don't sue nonetheless. If the law has
1062 no general exception for doujinshi, and indeed in some cases
1063 individual manga artists have sued doujinshi artists, why is there not
1064 a more general pattern of blocking this <span class="quote">«<span class="quote">free taking</span>»</span> by the doujinshi
1065 culture?
1066 </p><a class="indexterm" name="idp7204816"></a><a class="indexterm" name="idp7205792"></a><p>
1067 I spent four wonderful months in Japan, and I asked this question
1068 as often as I could. Perhaps the best account in the end was offered by
1069 a friend from a major Japanese law firm. <span class="quote">«<span class="quote">We don't have enough
1070 lawyers,</span>»</span> he told me one afternoon. There <span class="quote">«<span class="quote">just aren't enough resources
1071 to prosecute cases like this.</span>»</span>
1072 </p><p>
1073 This is a theme to which we will return: that regulation by law is a
1074 function of both the words on the books and the costs of making those
1075 words have effect. For now, focus on the obvious question that is
1076 begged: Would Japan be better off with more lawyers? Would manga
1077
1078 be richer if doujinshi artists were regularly prosecuted? Would the
1079 Japanese gain something important if they could end this practice of
1080 uncompensated sharing? Does piracy here hurt the victims of the
1081 piracy, or does it help them? Would lawyers fighting this piracy help
1082 their clients or hurt them?
1083 </p><a class="indexterm" name="idp7209440"></a><p>
1084 <span class="strong"><strong>Let's pause</strong></span> for a moment.
1085 </p><p>
1086 If you're like I was a decade ago, or like most people are when they
1087 first start thinking about these issues, then just about now you should
1088 be puzzled about something you hadn't thought through before.
1089 </p><p>
1090 We live in a world that celebrates <span class="quote">«<span class="quote">property.</span>»</span> I am one of those
1091 celebrants.  I believe in the value of property in general, and I also
1092 believe in the value of that weird form of property that lawyers call
1093 <span class="quote">«<span class="quote">intellectual property.</span>»</span><a href="#ftn.idp7213104" class="footnote" name="idp7213104"><sup class="footnote">[25]</sup></a>
1094 A large, diverse society cannot survive without property; a large,
1095 diverse, and modern society cannot flourish without intellectual
1096 property.
1097 </p><a class="indexterm" name="idxdisneywalt3"></a><a class="indexterm" name="idxgrimmfairytales2"></a><a class="indexterm" name="idp7219216"></a><p>
1098 But it takes just a second's reflection to realize that there is
1099 plenty of value out there that <span class="quote">«<span class="quote">property</span>»</span> doesn't capture. I don't
1100 mean <span class="quote">«<span class="quote">money can't buy you love,</span>»</span> but rather, value that is plainly
1101 part of a process of production, including commercial as well as
1102 noncommercial production.  If Disney animators had stolen a set of
1103 pencils to draw Steamboat Willie, we'd have no hesitation in
1104 condemning that taking as wrong&#8212; even though trivial, even if
1105 unnoticed. Yet there was nothing wrong, at least under the law of the
1106 day, with Disney's taking from Buster Keaton or from the Brothers
1107 Grimm. There was nothing wrong with the taking from Keaton because
1108 Disney's use would have been considered <span class="quote">«<span class="quote">fair.</span>»</span> There was nothing
1109 wrong with the taking from the Grimms because the Grimms' work was in
1110 the public domain.
1111 </p><a class="indexterm" name="idxfreeculturederivativeworksbasedon"></a><p>
1112 Thus, even though the things that Disney took&#8212;or more generally,
1113 the things taken by anyone exercising Walt Disney creativity&#8212;are
1114 valuable, our tradition does not treat those takings as wrong. Some
1115
1116
1117 things remain free for the taking within a free culture, and that
1118 freedom is good.
1119 </p><a class="indexterm" name="idp7224752"></a><a class="indexterm" name="idxcopyrightlawjapanese3"></a><a class="indexterm" name="idp7227216"></a><a class="indexterm" name="idxdoujinshicomics2"></a><a class="indexterm" name="idxjapanesecomics2"></a><a class="indexterm" name="idxmanga2"></a><p>
1120 The same with the doujinshi culture. If a doujinshi artist broke into
1121 a publisher's office and ran off with a thousand copies of his latest
1122 work&#8212;or even one copy&#8212;without paying, we'd have no hesitation in
1123 saying the artist was wrong. In addition to having trespassed, he would
1124 have stolen something of value. The law bans that stealing in whatever
1125 form, whether large or small.
1126 </p><a class="indexterm" name="idp7231920"></a><p>
1127 Yet there is an obvious reluctance, even among Japanese lawyers, to
1128 say that the copycat comic artists are <span class="quote">«<span class="quote">stealing.</span>»</span> This form of Walt
1129 Disney creativity is seen as fair and right, even if lawyers in
1130 particular find it hard to say why.
1131 </p><a class="indexterm" name="idp7234480"></a><a class="indexterm" name="idp7235456"></a><a class="indexterm" name="idp7236432"></a><a class="indexterm" name="idp7237408"></a><a class="indexterm" name="idp7238384"></a><a class="indexterm" name="idp7239360"></a><a class="indexterm" name="idp7240336"></a><p>
1132 It's the same with a thousand examples that appear everywhere once you
1133 begin to look. Scientists build upon the work of other scientists
1134 without asking or paying for the privilege. (<span class="quote">«<span class="quote">Excuse me, Professor
1135 Einstein, but may I have permission to use your theory of relativity
1136 to show that you were wrong about quantum physics?</span>»</span>) Acting companies
1137 perform adaptations of the works of Shakespeare without securing
1138 permission from anyone. (Does <span class="emphasis"><em>anyone</em></span> believe
1139 Shakespeare would be better spread within our culture if there were a
1140 central Shakespeare rights clearinghouse that all productions of
1141 Shakespeare must appeal to first?) And Hollywood goes through cycles
1142 with a certain kind of movie: five asteroid films in the late 1990s;
1143 two volcano disaster films in 1997.
1144 </p><p>
1145 Creators here and everywhere are always and at all times building
1146 upon the creativity that went before and that surrounds them now.
1147 That building is always and everywhere at least partially done without
1148 permission and without compensating the original creator. No society,
1149 free or controlled, has ever demanded that every use be paid for or that
1150 permission for Walt Disney creativity must always be sought. Instead,
1151 every society has left a certain bit of its culture free for the taking&#8212;free
1152 societies more fully than unfree, perhaps, but all societies to some degree.
1153
1154 </p><a class="indexterm" name="idp7243568"></a><p>
1155 The hard question is therefore not <span class="emphasis"><em>whether</em></span> a
1156 culture is free. All cultures are free to some degree. The hard
1157 question instead is <span class="quote">«<span class="quote"><span class="emphasis"><em>How</em></span> free is this culture?</span>»</span>
1158 How much, and how broadly, is the culture free for others to take and
1159 build upon? Is that freedom limited to party members?  To members of
1160 the royal family? To the top ten corporations on the New York Stock
1161 Exchange? Or is that freedom spread broadly? To artists generally,
1162 whether affiliated with the Met or not? To musicians generally,
1163 whether white or not? To filmmakers generally, whether affiliated with
1164 a studio or not?
1165 </p><p>
1166 Free cultures are cultures that leave a great deal open for others to
1167 build upon; unfree, or permission, cultures leave much less. Ours was a
1168 free culture. It is becoming much less so.
1169 </p><a class="indexterm" name="idp7247824"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7096560" class="footnote"><p><a href="#idp7096560" class="para"><sup class="para">[19] </sup></a>
1170
1171 Leonard Maltin, <em class="citetitle">Of Mice and Magic: A History of American Animated
1172 Cartoons</em> (New York: Penguin Books, 1987), 34&#8211;35.
1173 </p></div><div id="ftn.idp7110288" class="footnote"><p><a href="#idp7110288" class="para"><sup class="para">[20] </sup></a>
1174
1175 I am grateful to David Gerstein and his careful history, described at
1176 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #4</a>.
1177 According to Dave Smith of the Disney Archives, Disney paid royalties to
1178 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
1179 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>
1180 (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
1181 Straw,</span>»</span> was already in the public domain. Letter from David Smith to
1182 Harry Surden, 10 July 2003, on file with author.
1183 </p></div><div id="ftn.idp7123744" class="footnote"><p><a href="#idp7123744" class="para"><sup class="para">[21] </sup></a>
1184
1185 He was also a fan of the public domain. See Chris Sprigman, <span class="quote">«<span class="quote">The Mouse
1186 that Ate the Public Domain,</span>»</span> Findlaw, 5 March 2002, at
1187 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #5</a>.
1188 </p></div><div id="ftn.idp7138576" class="footnote"><p><a href="#idp7138576" class="para"><sup class="para">[22] </sup></a>
1189
1190 Until 1976, copyright law granted an author the possibility of two terms: an
1191 initial term and a renewal term. I have calculated the <span class="quote">«<span class="quote">average</span>»</span> term by
1192 determining
1193 the weighted average of total registrations for any particular year,
1194 and the proportion renewing. Thus, if 100 copyrights are registered in year
1195 1, and only 15 are renewed, and the renewal term is 28 years, then the
1196 average
1197 term is 32.2 years. For the renewal data and other relevant data, see the
1198 Web site associated with this book, available at
1199 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #6</a>.
1200 </p></div><div id="ftn.idp7188032" class="footnote"><p><a href="#idp7188032" class="para"><sup class="para">[23] </sup></a>
1201
1202 For an excellent history, see Scott McCloud, <em class="citetitle">Reinventing Comics</em> (New
1203 York: Perennial, 2000).
1204 </p></div><div id="ftn.idp7198064" class="footnote"><p><a href="#idp7198064" class="para"><sup class="para">[24] </sup></a>
1205
1206 See Salil K. Mehra, <span class="quote">«<span class="quote">Copyright and Comics in Japan: Does Law Explain
1207 Why All the Comics My Kid Watches Are Japanese Imports?</span>»</span> <em class="citetitle">Rutgers Law
1208 Review</em> 55 (2002): 155, 182. <span class="quote">«<span class="quote">[T]here might be a collective economic
1209 rationality that would lead manga and anime artists to forgo bringing
1210 legal actions for infringement. One hypothesis is that all manga
1211 artists may be better off collectively if they set aside their
1212 individual self-interest and decide not to press their legal
1213 rights. This is essentially a prisoner's dilemma solved.</span>»</span>
1214 </p></div><div id="ftn.idp7213104" class="footnote"><p><a href="#idp7213104" class="para"><sup class="para">[25] </sup></a>
1215
1216 <a class="indexterm" name="idp7213744"></a>
1217 The term <em class="citetitle">intellectual property</em> is of relatively recent origin. See
1218 Siva Vaidhyanathan, <em class="citetitle">Copyrights and Copywrongs</em>, 11 (New York: New York
1219 University Press, 2001). See also Lawrence Lessig, <em class="citetitle">The Future of Ideas</em>
1220 (New York: Random House, 2001), 293 n. 26. The term accurately
1221 describes a set of <span class="quote">«<span class="quote">property</span>»</span> rights &#8212; copyright, patents,
1222 trademark, and trade-secret &#8212; but the nature of those rights is
1223 very different.
1224 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="mere-copyists"></a>Chapter 2. <span class="quote">«<span class="quote">Mere Copyists</span>»</span></h2></div></div></div><a class="indexterm" name="idp7250432"></a><a class="indexterm" name="idxcameratechnology"></a><a class="indexterm" name="idxphotography"></a><p>
1225 <span class="strong"><strong>In 1839</strong></span>, Louis Daguerre invented
1226 the first practical technology for producing what we would call
1227 <span class="quote">«<span class="quote">photographs.</span>»</span> Appropriately enough, they were called
1228 <span class="quote">«<span class="quote">daguerreotypes.</span>»</span> The process was complicated and
1229 expensive, and the field was thus limited to professionals and a few
1230 zealous and wealthy amateurs. (There was even an American Daguerre
1231 Association that helped regulate the industry, as do all such
1232 associations, by keeping competition down so as to keep prices up.)
1233 </p><a class="indexterm" name="idp7255856"></a><p>
1234 Yet despite high prices, the demand for daguerreotypes was strong.
1235 This pushed inventors to find simpler and cheaper ways to make
1236 <span class="quote">«<span class="quote">automatic pictures.</span>»</span> William Talbot soon discovered a process for
1237 making <span class="quote">«<span class="quote">negatives.</span>»</span> But because the negatives were glass, and had to
1238 be kept wet, the process still remained expensive and cumbersome. In
1239 the 1870s, dry plates were developed, making it easier to separate the
1240 taking of a picture from its developing. These were still plates of
1241 glass, and thus it was still not a process within reach of most
1242 amateurs.
1243 </p><a class="indexterm" name="idxeastmangeorge"></a><p>
1244 The technological change that made mass photography possible
1245 didn't happen until 1888, and was the creation of a single man. George
1246
1247 Eastman, himself an amateur photographer, was frustrated by the
1248 technology of photographs made with plates. In a flash of insight (so
1249 to speak), Eastman saw that if the film could be made to be flexible,
1250 it could be held on a single spindle. That roll could then be sent to
1251 a developer, driving the costs of photography down substantially. By
1252 lowering the costs, Eastman expected he could dramatically broaden the
1253 population of photographers.
1254 </p><a class="indexterm" name="idxkodakcameras"></a><a class="indexterm" name="idxkodakprimertheeastman"></a><p>
1255 Eastman developed flexible, emulsion-coated paper film and placed
1256 rolls of it in small, simple cameras: the Kodak. The device was
1257 marketed on the basis of its simplicity. <span class="quote">«<span class="quote">You press the button and we
1258 do the rest.</span>»</span><a href="#ftn.idp7263904" class="footnote" name="idp7263904"><sup class="footnote">[26]</sup></a> As he described in <em class="citetitle">The Kodak Primer</em>:
1259 </p><div class="blockquote"><blockquote class="blockquote"><p>
1260 The principle of the Kodak system is the separation of the work that
1261 any person whomsoever can do in making a photograph, from the work
1262 that only an expert can do. &#8230; We furnish anybody, man, woman or
1263 child, who has sufficient intelligence to point a box straight and
1264 press a button, with an instrument which altogether removes from the
1265 practice of photography the necessity for exceptional facilities or,
1266 in fact, any special knowledge of the art. It can be employed without
1267 preliminary study, without a darkroom and without
1268 chemicals.<a href="#ftn.idp7187744" class="footnote" name="idp7187744"><sup class="footnote">[27]</sup></a>
1269 </p></blockquote></div><a class="indexterm" name="idp7269056"></a><p>
1270 For $25, anyone could make pictures. The camera came preloaded
1271 with film, and when it had been used, the camera was returned to an
1272 Eastman factory, where the film was developed. Over time, of course,
1273 the cost of the camera and the ease with which it could be used both
1274 improved. Roll film thus became the basis for the explosive growth of
1275 popular photography. Eastman's camera first went on sale in 1888; one
1276 year later, Kodak was printing more than six thousand negatives a day.
1277 From 1888 through 1909, while industrial production was rising by 4.7
1278 percent, photographic equipment and material sales increased by 11
1279 percent.<a href="#ftn.idp7270928" class="footnote" name="idp7270928"><sup class="footnote">[28]</sup></a> Eastman Kodak's sales during the same period experienced
1280 an average annual increase of over 17 percent.<a href="#ftn.idp7271824" class="footnote" name="idp7271824"><sup class="footnote">[29]</sup></a>
1281 </p><a class="indexterm" name="idp7272720"></a><p>
1282
1283
1284 The real significance of Eastman's invention, however, was not
1285 economic. It was social. Professional photography gave individuals a
1286 glimpse of places they would never otherwise see. Amateur photography
1287 gave them the ability to record their own lives in a way they had
1288 never been able to do before. As author Brian Coe notes, <span class="quote">«<span class="quote">For the
1289 first time the snapshot album provided the man on the street with a
1290 permanent record of his family and its activities. &#8230; For the first
1291 time in history there exists an authentic visual record of the
1292 appearance and activities of the common man made without [literary]
1293 interpretation or bias.</span>»</span><a href="#ftn.idp7266336" class="footnote" name="idp7266336"><sup class="footnote">[30]</sup></a>
1294 </p><a class="indexterm" name="idp7275808"></a><a class="indexterm" name="idp7276816"></a><p>
1295 In this way, the Kodak camera and film were technologies of
1296 expression.  The pencil or paintbrush was also a technology of
1297 expression, of course. But it took years of training before they could
1298 be deployed by amateurs in any useful or effective way. With the
1299 Kodak, expression was possible much sooner and more simply. The
1300 barrier to expression was lowered. Snobs would sneer at its <span class="quote">«<span class="quote">quality</span>»</span>;
1301 professionals would discount it as irrelevant. But watch a child study
1302 how best to frame a picture and you get a sense of the experience of
1303 creativity that the Kodak enabled. Democratic tools gave ordinary
1304 people a way to express themselves more easily than any tools could
1305 have before.
1306 </p><a class="indexterm" name="idp7279296"></a><a class="indexterm" name="idxpermissionsphotographyexemptedfrom"></a><p>
1307 What was required for this technology to flourish? Obviously,
1308 Eastman's genius was an important part. But also important was the
1309 legal environment within which Eastman's invention grew. For early in
1310 the history of photography, there was a series of judicial decisions
1311 that could well have changed the course of photography substantially.
1312 Courts were asked whether the photographer, amateur or professional,
1313 required permission before he could capture and print whatever image
1314 he wanted. Their answer was no.<a href="#ftn.idp7282544" class="footnote" name="idp7282544"><sup class="footnote">[31]</sup></a>
1315 </p><a class="indexterm" name="idp7285744"></a><a class="indexterm" name="idxdisneywalt4"></a><a class="indexterm" name="idximagesownershipof"></a><p>
1316 The arguments in favor of requiring permission will sound surprisingly
1317 familiar. The photographer was <span class="quote">«<span class="quote">taking</span>»</span> something from the person or
1318 building whose photograph he shot&#8212;pirating something of
1319 value. Some even thought he was taking the target's soul. Just as
1320 Disney was not free to take the pencils that his animators used to
1321 draw
1322
1323 Mickey, so, too, should these photographers not be free to take images
1324 that they thought valuable.
1325 </p><a class="indexterm" name="idp7290752"></a><a class="indexterm" name="idp7291504"></a><a class="indexterm" name="idxcameratechnology2"></a><p>
1326 On the other side was an argument that should be familiar, as well.
1327 Sure, there may be something of value being used. But citizens should
1328 have the right to capture at least those images that stand in public view.
1329 (Louis Brandeis, who would become a Supreme Court Justice, thought
1330 the rule should be different for images from private spaces.<a href="#ftn.idp7294096" class="footnote" name="idp7294096"><sup class="footnote">[32]</sup></a>) It may be that this means that the photographer
1331 gets something for nothing. Just as Disney could take inspiration from
1332 <em class="citetitle">Steamboat Bill, Jr</em>. or the Brothers Grimm, the photographer should be
1333 free to capture an image without compensating the source.
1334 </p><a class="indexterm" name="idp7298048"></a><p>
1335 Fortunately for Mr. Eastman, and for photography in general, these
1336 early decisions went in favor of the pirates. In general, no
1337 permission would be required before an image could be captured and
1338 shared with others. Instead, permission was presumed. Freedom was the
1339 default.  (The law would eventually craft an exception for famous
1340 people: commercial photographers who snap pictures of famous people
1341 for commercial purposes have more restrictions than the rest of
1342 us. But in the ordinary case, the image can be captured without
1343 clearing the rights to do the capturing.<a href="#ftn.idp7299872" class="footnote" name="idp7299872"><sup class="footnote">[33]</sup></a>)
1344 </p><a class="indexterm" name="idp7303072"></a><a class="indexterm" name="idp7303824"></a><p>
1345 We can only speculate about how photography would have developed had
1346 the law gone the other way. If the presumption had been against the
1347 photographer, then the photographer would have had to demonstrate
1348 permission. Perhaps Eastman Kodak would have had to demonstrate
1349 permission, too, before it developed the film upon which images were
1350 captured. After all, if permission were not granted, then Eastman
1351 Kodak would be benefiting from the <span class="quote">«<span class="quote">theft</span>»</span> committed by the
1352 photographer. Just as Napster benefited from the copyright
1353 infringements committed by Napster users, Kodak would be benefiting
1354 from the <span class="quote">«<span class="quote">image-right</span>»</span> infringement of its photographers. We could
1355 imagine the law then requiring that some form of permission be
1356 demonstrated before a company developed pictures. We could imagine a
1357 system developing to demonstrate that permission.
1358 </p><a class="indexterm" name="idp7306592"></a><a class="indexterm" name="idxcameratechnology3"></a><a class="indexterm" name="idp7308800"></a><a class="indexterm" name="idp7309808"></a><p>
1359
1360
1361 But though we could imagine this system of permission, it would be
1362 very hard to see how photography could have flourished as it did if
1363 the requirement for permission had been built into the rules that
1364 govern it. Photography would have existed. It would have grown in
1365 importance over time. Professionals would have continued to use the
1366 technology as they did&#8212;since professionals could have more
1367 easily borne the burdens of the permission system. But the spread of
1368 photography to ordinary people would not have occurred. Nothing like
1369 that growth would have been realized. And certainly, nothing like that
1370 growth in a democratic technology of expression would have been
1371 realized.
1372 </p><a class="indexterm" name="idp7311328"></a><a class="indexterm" name="idp7313136"></a><a class="indexterm" name="idp7314112"></a><a class="indexterm" name="idp7315088"></a><a class="indexterm" name="idp7316064"></a><a class="indexterm" name="idxjustthink"></a><p>
1373 <span class="strong"><strong>If you drive</strong></span> through San
1374 Francisco's Presidio, you might see two gaudy yellow school buses
1375 painted over with colorful and striking images, and the logo
1376 <span class="quote">«<span class="quote">Just Think!</span>»</span> in place of the name of a school. But
1377 there's little that's <span class="quote">«<span class="quote">just</span>»</span> cerebral in the projects
1378 that these busses enable.  These buses are filled with technologies
1379 that teach kids to tinker with film. Not the film of Eastman. Not even
1380 the film of your VCR.  Rather the <span class="quote">«<span class="quote">film</span>»</span> of digital
1381 cameras. Just Think!  is a project that enables kids to make films, as
1382 a way to understand and critique the filmed culture that they find all
1383 around them. Each year, these busses travel to more than thirty
1384 schools and enable three hundred to five hundred children to learn
1385 something about media by doing something with media.  By doing, they
1386 think. By tinkering, they learn.
1387 </p><a class="indexterm" name="idxeducationinmedialiteracy"></a><a class="indexterm" name="idxmedialiteracy"></a><a class="indexterm" name="idxexpressiontechnologiesofmedialiteracyand"></a><p>
1388 These buses are not cheap, but the technology they carry is
1389 increasingly so. The cost of a high-quality digital video system has
1390 fallen dramatically.  As one analyst puts it, <span class="quote">«<span class="quote">Five years ago, a good
1391 real-time digital video editing system cost $25,000. Today you can get
1392 professional quality for $595.</span>»</span><a href="#ftn.idp7326112" class="footnote" name="idp7326112"><sup class="footnote">[34]</sup></a>
1393 These buses are filled with technology that would have cost hundreds
1394 of thousands just ten years ago. And it is now feasible to imagine not
1395 just buses like this, but classrooms across the country where kids are
1396 learning more and more of something teachers call <span class="quote">«<span class="quote">media literacy.</span>»</span>
1397 </p><a class="indexterm" name="idp7328800"></a><p>
1398
1399 <span class="quote">«<span class="quote">Media literacy,</span>»</span> as Dave Yanofsky, the executive director of Just
1400 Think!, puts it, <span class="quote">«<span class="quote">is the ability &#8230; to understand, analyze, and
1401 deconstruct media images. Its aim is to make [kids] literate about the
1402 way media works, the way it's constructed, the way it's delivered, and
1403 the way people access it.</span>»</span>
1404 </p><a class="indexterm" name="idp7331264"></a><p>
1405 This may seem like an odd way to think about <span class="quote">«<span class="quote">literacy.</span>»</span> For most
1406 people, literacy is about reading and writing. Faulkner and Hemingway
1407 and noticing split infinitives are the things that <span class="quote">«<span class="quote">literate</span>»</span> people know
1408 about.
1409 </p><a class="indexterm" name="idp7333536"></a><a class="indexterm" name="idp7334288"></a><a class="indexterm" name="idp7335040"></a><p>
1410 Maybe. But in a world where children see on average 390 hours of
1411 television commercials per year, or between 20,000 and 45,000
1412 commercials generally,<a href="#ftn.idp7336464" class="footnote" name="idp7336464"><sup class="footnote">[35]</sup></a>
1413 it is increasingly important to understand the <span class="quote">«<span class="quote">grammar</span>»</span> of media. For
1414 just as there is a grammar for the written word, so, too, is there one
1415 for media. And just as kids learn how to write by writing lots of
1416 terrible prose, kids learn how to write media by constructing lots of
1417 (at least at first) terrible media.
1418 </p><p>
1419 A growing field of academics and activists sees this form of literacy
1420 as crucial to the next generation of culture. For though anyone who
1421 has written understands how difficult writing is&#8212;how difficult
1422 it is to sequence the story, to keep a reader's attention, to craft
1423 language to be understandable&#8212;few of us have any real sense of
1424 how difficult media is. Or more fundamentally, few of us have a sense
1425 of how media works, how it holds an audience or leads it through a
1426 story, how it triggers emotion or builds suspense.
1427 </p><a class="indexterm" name="idp7339424"></a><p>
1428 It took filmmaking a generation before it could do these things well.
1429 But even then, the knowledge was in the filming, not in writing about
1430 the film. The skill came from experiencing the making of a film, not
1431 from reading a book about it. One learns to write by writing and then
1432 reflecting upon what one has written. One learns to write with images
1433 by making them and then reflecting upon what one has created.
1434 </p><a class="indexterm" name="idxdaleyelizabeth"></a><a class="indexterm" name="idp7343200"></a><p>
1435 This grammar has changed as media has changed. When it was just film,
1436 as Elizabeth Daley, executive director of the University of Southern
1437 California's Annenberg Center for Communication and dean of the
1438
1439
1440 USC School of Cinema-Television, explained to me, the grammar was
1441 about <span class="quote">«<span class="quote">the placement of objects, color, &#8230; rhythm, pacing, and
1442 texture.</span>»</span><a href="#ftn.idp7330784" class="footnote" name="idp7330784"><sup class="footnote">[36]</sup></a>
1443 But as computers open up an interactive space where a story is
1444 <span class="quote">«<span class="quote">played</span>»</span> as well as experienced, that grammar changes. The simple
1445 control of narrative is lost, and so other techniques are necessary. Author
1446 Michael Crichton had mastered the narrative of science fiction.
1447 But when he tried to design a computer game based on one of his
1448 works, it was a new craft he had to learn. How to lead people through
1449 a game without their feeling they have been led was not obvious, even
1450 to a wildly successful author.<a href="#ftn.idp7348448" class="footnote" name="idp7348448"><sup class="footnote">[37]</sup></a>
1451 </p><a class="indexterm" name="idp7351360"></a><p>
1452 This skill is precisely the craft a filmmaker learns. As Daley
1453 describes, <span class="quote">«<span class="quote">people are very surprised about how they are led through a
1454 film. [I]t is perfectly constructed to keep you from seeing it, so you
1455 have no idea. If a filmmaker succeeds you do not know how you were
1456 led.</span>»</span> If you know you were led through a film, the film has failed.
1457 </p><p>
1458 Yet the push for an expanded literacy&#8212;one that goes beyond text
1459 to include audio and visual elements&#8212;is not about making better
1460 film directors.  The aim is not to improve the profession of
1461 filmmaking at all.  Instead, as Daley explained,
1462 </p><div class="blockquote"><blockquote class="blockquote"><p>
1463 From my perspective, probably the most important digital divide
1464 is not access to a box. It's the ability to be empowered with the
1465 language that that box works in. Otherwise only a very few people
1466 can write with this language, and all the rest of us are reduced to
1467 being read-only.
1468 </p></blockquote></div><p>
1469 <span class="quote">«<span class="quote">Read-only.</span>»</span> Passive recipients of culture produced elsewhere.
1470 Couch potatoes. Consumers. This is the world of media from the
1471 twentieth century.
1472 </p><p>
1473 The twenty-first century could be different. This is the crucial
1474 point: It could be both read and write. Or at least reading and better
1475 understanding the craft of writing. Or best, reading and understanding
1476 the tools that enable the writing to lead or mislead. The aim of any
1477 literacy,
1478
1479 and this literacy in particular, is to <span class="quote">«<span class="quote">empower people to choose the
1480 appropriate language for what they need to create or
1481 express.</span>»</span><a href="#ftn.idp7357088" class="footnote" name="idp7357088"><sup class="footnote">[38]</sup></a> It is to enable students <span class="quote">«<span class="quote">to communicate in the
1482 language of the twenty-first century.</span>»</span><a href="#ftn.idp7359072" class="footnote" name="idp7359072"><sup class="footnote">[39]</sup></a>
1483 </p><a class="indexterm" name="idxbarishstephanie"></a><p>
1484 As with any language, this language comes more easily to some than to
1485 others. It doesn't necessarily come more easily to those who excel in
1486 written language. Daley and Stephanie Barish, director of the
1487 Institute for Multimedia Literacy at the Annenberg Center, describe
1488 one particularly poignant example of a project they ran in a high
1489 school.  The high school was a very poor inner-city Los Angeles
1490 school. In all the traditional measures of success, this school was a
1491 failure. But Daley and Barish ran a program that gave kids an
1492 opportunity to use film to express meaning about something the
1493 students know something about&#8212;gun violence.
1494 </p><a class="indexterm" name="idp7361456"></a><p>
1495 The class was held on Friday afternoons, and it created a relatively
1496 new problem for the school. While the challenge in most classes was
1497 getting the kids to come, the challenge in this class was keeping them
1498 away. The <span class="quote">«<span class="quote">kids were showing up at 6 A.M. and leaving at 5 at night,</span>»</span>
1499 said Barish. They were working harder than in any other class to do
1500 what education should be about&#8212;learning how to express themselves.
1501 </p><p>
1502 Using whatever <span class="quote">«<span class="quote">free web stuff they could find,</span>»</span> and relatively simple
1503 tools to enable the kids to mix <span class="quote">«<span class="quote">image, sound, and text,</span>»</span> Barish said
1504 this class produced a series of projects that showed something about
1505 gun violence that few would otherwise understand. This was an issue
1506 close to the lives of these students. The project <span class="quote">«<span class="quote">gave them a tool
1507 and empowered them to be able to both understand it and talk about
1508 it,</span>»</span> Barish explained. That tool succeeded in creating
1509 expression&#8212;far more successfully and powerfully than could have
1510 been created using only text. <span class="quote">«<span class="quote">If you had said to these students, `you
1511 have to do it in text,' they would've just thrown their hands up and
1512 gone and done something else,</span>»</span> Barish described, in part, no doubt,
1513 because expressing themselves in text is not something these students
1514 can do well. Yet neither is text a form in which
1515 <span class="emphasis"><em>these</em></span> ideas can be expressed well. The power of
1516 this message depended upon its connection to this form of expression.
1517 </p><a class="indexterm" name="idp7368176"></a><a class="indexterm" name="idxdaleyelizabeth2"></a><p>
1518
1519
1520 <span class="quote">«<span class="quote">But isn't education about teaching kids to write?</span>»</span> I asked. In part,
1521 of course, it is. But why are we teaching kids to write? Education,
1522 Daley explained, is about giving students a way of <span class="quote">«<span class="quote">constructing
1523 meaning.</span>»</span>  To say that that means just writing is like saying teaching
1524 writing is only about teaching kids how to spell. Text is one
1525 part&#8212;and increasingly, not the most powerful part&#8212;of
1526 constructing meaning. As Daley explained in the most moving part of
1527 our interview,
1528 </p><div class="blockquote"><blockquote class="blockquote"><p>
1529 What you want is to give these students ways of constructing
1530 meaning. If all you give them is text, they're not going to do it.
1531 Because they can't. You know, you've got Johnny who can look at a
1532 video, he can play a video game, he can do graffiti all over your
1533 walls, he can take your car apart, and he can do all sorts of other
1534 things. He just can't read your text. So Johnny comes to school and
1535 you say, <span class="quote">«<span class="quote">Johnny, you're illiterate. Nothing you can do matters.</span>»</span>
1536 Well, Johnny then has two choices: He can dismiss you or he [can]
1537 dismiss himself. If his ego is healthy at all, he's going to dismiss
1538 you. [But i]nstead, if you say, <span class="quote">«<span class="quote">Well, with all these things that you
1539 can do, let's talk about this issue. Play for me music that you think
1540 reflects that, or show me images that you think reflect that, or draw
1541 for me something that reflects that.</span>»</span> Not by giving a kid a video
1542 camera and &#8230; saying, <span class="quote">«<span class="quote">Let's go have fun with the video camera and
1543 make a little movie.</span>»</span> But instead, really help you take these elements
1544 that you understand, that are your language, and construct meaning
1545 about the topic.&#8230;
1546 </p><a class="indexterm" name="idp7374640"></a><p>
1547 That empowers enormously. And then what happens, of
1548 course, is eventually, as it has happened in all these classes, they
1549 bump up against the fact, <span class="quote">«<span class="quote">I need to explain this and I really need
1550 to write something.</span>»</span> And as one of the teachers told Stephanie,
1551 they would rewrite a paragraph 5, 6, 7, 8 times, till they got it right.
1552 </p><p>
1553 Because they needed to. There was a reason for doing it. They
1554 needed to say something, as opposed to just jumping through
1555 your hoops. They actually needed to use a language that they
1556
1557 didn't speak very well. But they had come to understand that they
1558 had a lot of power with this language.
1559 </p></blockquote></div><a class="indexterm" name="idp7378320"></a><a class="indexterm" name="idp7379296"></a><a class="indexterm" name="idp7380272"></a><a class="indexterm" name="idp7381248"></a><a class="indexterm" name="idxseptemberterroristattacksof"></a><a class="indexterm" name="idp7383456"></a><a class="indexterm" name="idxnewscoverage"></a><p>
1560 <span class="strong"><strong>When two planes</strong></span> crashed into the
1561 World Trade Center, another into the Pentagon, and a fourth into a
1562 Pennsylvania field, all media around the world shifted to this
1563 news. Every moment of just about every day for that week, and for
1564 weeks after, television in particular, and media generally, retold the
1565 story of the events we had just witnessed. The telling was a
1566 retelling, because we had seen the events that were described. The
1567 genius of this awful act of terrorism was that the delayed second
1568 attack was perfectly timed to assure that the whole world would be
1569 watching.
1570 </p><p>
1571 These retellings had an increasingly familiar feel. There was music
1572 scored for the intermissions, and fancy graphics that flashed across
1573 the screen. There was a formula to interviews. There was <span class="quote">«<span class="quote">balance,</span>»</span>
1574 and seriousness. This was news choreographed in the way we have
1575 increasingly come to expect it, <span class="quote">«<span class="quote">news as entertainment,</span>»</span> even if the
1576 entertainment is tragedy.
1577 </p><a class="indexterm" name="idp77376"></a><a class="indexterm" name="idp78208"></a><p>
1578 But in addition to this produced news about the <span class="quote">«<span class="quote">tragedy of September
1579 11,</span>»</span> those of us tied to the Internet came to see a very different
1580 production as well. The Internet was filled with accounts of the same
1581 events. Yet these Internet accounts had a very different flavor. Some
1582 people constructed photo pages that captured images from around the
1583 world and presented them as slide shows with text. Some offered open
1584 letters. There were sound recordings. There was anger and frustration.
1585 There were attempts to provide context. There was, in short, an
1586 extraordinary worldwide barn raising, in the sense Mike Godwin uses
1587 the term in his book <em class="citetitle">Cyber Rights</em>, around a news event that had
1588 captured the attention of the world. There was ABC and CBS, but there
1589 was also the Internet.
1590 </p><a class="indexterm" name="idp80944"></a><p>
1591 I don't mean simply to praise the Internet&#8212;though I do think the
1592 people who supported this form of speech should be praised. I mean
1593 instead to point to a significance in this form of speech. For like a
1594 Kodak, the Internet enables people to capture images. And like in a
1595 movie
1596
1597 by a student on the <span class="quote">«<span class="quote">Just Think!</span>»</span> bus, the visual images could be mixed
1598 with sound or text.
1599 </p><p>
1600 But unlike any technology for simply capturing images, the Internet
1601 allows these creations to be shared with an extraordinary number of
1602 people, practically instantaneously. This is something new in our
1603 tradition&#8212;not just that culture can be captured mechanically,
1604 and obviously not just that events are commented upon critically, but
1605 that this mix of captured images, sound, and commentary can be widely
1606 spread practically instantaneously.
1607 </p><a class="indexterm" name="idp7403552"></a><a class="indexterm" name="idxblogsweblogs"></a><a class="indexterm" name="idxinternetblogson"></a><a class="indexterm" name="idxweblogsblogs"></a><p>
1608 September 11 was not an aberration. It was a beginning. Around the
1609 same time, a form of communication that has grown dramatically was
1610 just beginning to come into public consciousness: the Web-log, or
1611 blog. The blog is a kind of public diary, and within some cultures,
1612 such as in Japan, it functions very much like a diary. In those
1613 cultures, it records private facts in a public way&#8212;it's a kind
1614 of electronic <em class="citetitle">Jerry Springer</em>, available anywhere in the world.
1615 </p><a class="indexterm" name="idp7410176"></a><a class="indexterm" name="idxinternetpublicdiscourseconductedon"></a><p>
1616 But in the United States, blogs have taken on a very different
1617 character.  There are some who use the space simply to talk about
1618 their private life. But there are many who use the space to engage in
1619 public discourse. Discussing matters of public import, criticizing
1620 others who are mistaken in their views, criticizing politicians about
1621 the decisions they make, offering solutions to problems we all see:
1622 blogs create the sense of a virtual public meeting, but one in which
1623 we don't all hope to be there at the same time and in which
1624 conversations are not necessarily linked. The best of the blog entries
1625 are relatively short; they point directly to words used by others,
1626 criticizing with or adding to them.  They are arguably the most
1627 important form of unchoreographed public discourse that we have.
1628 </p><a class="indexterm" name="idxdemocracyintechnologiesofexpression"></a><a class="indexterm" name="idxelections"></a><a class="indexterm" name="idxexpressiontechnologiesofdemocratic"></a><p>
1629 That's a strong statement. Yet it says as much about our democracy as
1630 it does about blogs. This is the part of America that is most
1631 difficult for those of us who love America to accept: Our democracy
1632 has atrophied.  Of course we have elections, and most of the time the
1633 courts allow those elections to count. A relatively small number of
1634 people vote
1635
1636 in those elections. The cycle of these elections has become totally
1637 professionalized and routinized. Most of us think this is democracy.
1638 </p><a class="indexterm" name="idp7419792"></a><a class="indexterm" name="idp7420768"></a><a class="indexterm" name="idp7421744"></a><a class="indexterm" name="idp7422720"></a><a class="indexterm" name="idxdemocracypublicdiscoursein"></a><a class="indexterm" name="idp7424960"></a><p>
1639 But democracy has never just been about elections. Democracy
1640 means rule by the people, but rule means something more than mere
1641 elections. In our tradition, it also means control through reasoned
1642 discourse.  This was the idea that captured the imagination of Alexis
1643 de Tocqueville, the nineteenth-century French lawyer who wrote the
1644 most important account of early <span class="quote">«<span class="quote">Democracy in America.</span>»</span> It wasn't
1645 popular elections that fascinated him&#8212;it was the jury, an
1646 institution that gave ordinary people the right to choose life or
1647 death for other citizens.  And most fascinating for him was that the
1648 jury didn't just vote about the outcome they would impose. They
1649 deliberated. Members argued about the <span class="quote">«<span class="quote">right</span>»</span> result; they tried to
1650 persuade each other of the <span class="quote">«<span class="quote">right</span>»</span> result, and in criminal cases at
1651 least, they had to agree upon a unanimous result for the process to
1652 come to an end.<a href="#ftn.idp7427952" class="footnote" name="idp7427952"><sup class="footnote">[40]</sup></a>
1653 </p><a class="indexterm" name="idp7429232"></a><p>
1654 Yet even this institution flags in American life today. And in its
1655 place, there is no systematic effort to enable citizen deliberation. Some
1656 are pushing to create just such an institution.<a href="#ftn.idp7430672" class="footnote" name="idp7430672"><sup class="footnote">[41]</sup></a>
1657 And in some towns in New England, something close to deliberation
1658 remains. But for most of us for most of the time, there is no time or
1659 place for <span class="quote">«<span class="quote">democratic deliberation</span>»</span> to occur.
1660 </p><a class="indexterm" name="idxpoliticaldiscourse"></a><p>
1661 More bizarrely, there is generally not even permission for it to
1662 occur.  We, the most powerful democracy in the world, have developed a
1663 strong norm against talking about politics. It's fine to talk about
1664 politics with people you agree with. But it is rude to argue about
1665 politics with people you disagree with. Political discourse becomes
1666 isolated, and isolated discourse becomes more extreme.<a href="#ftn.idp7434784" class="footnote" name="idp7434784"><sup class="footnote">[42]</sup></a> We say what our friends want to hear, and hear very
1667 little beyond what our friends say.
1668 </p><a class="indexterm" name="idxblogsweblogs2"></a><a class="indexterm" name="idp7437408"></a><a class="indexterm" name="idxinternetblogson2"></a><a class="indexterm" name="idxweblogsblogs2"></a><a class="indexterm" name="idp7440880"></a><a class="indexterm" name="idp7441856"></a><a class="indexterm" name="idp7442832"></a><p>
1669 Enter the blog. The blog's very architecture solves one part of this
1670 problem. People post when they want to post, and people read when they
1671 want to read. The most difficult time is synchronous time.
1672 Technologies that enable asynchronous communication, such as e-mail,
1673 increase the opportunity for communication. Blogs allow for public
1674
1675
1676 discourse without the public ever needing to gather in a single public
1677 place.
1678 </p><p>
1679 But beyond architecture, blogs also have solved the problem of
1680 norms. There's no norm (yet) in blog space not to talk about politics.
1681 Indeed, the space is filled with political speech, on both the right and
1682 the left. Some of the most popular sites are conservative or libertarian,
1683 but there are many of all political stripes. And even blogs that are not
1684 political cover political issues when the occasion merits.
1685 </p><a class="indexterm" name="idp7445712"></a><p>
1686 The significance of these blogs is tiny now, though not so tiny. The
1687 name Howard Dean may well have faded from the 2004 presidential race
1688 but for blogs. Yet even if the number of readers is small, the reading
1689 is having an effect.
1690 </p><a class="indexterm" name="idp7447088"></a><a class="indexterm" name="idp7447840"></a><a class="indexterm" name="idxmediablogpressureon"></a><a class="indexterm" name="idxinternetnewseventson2"></a><p>
1691 One direct effect is on stories that had a different life cycle in the
1692 mainstream media. The Trent Lott affair is an example. When Lott
1693 <span class="quote">«<span class="quote">misspoke</span>»</span> at a party for Senator Strom Thurmond, essentially praising
1694 Thurmond's segregationist policies, he calculated correctly that this
1695 story would disappear from the mainstream press within forty-eight
1696 hours. It did. But he didn't calculate its life cycle in blog
1697 space. The bloggers kept researching the story. Over time, more and
1698 more instances of the same <span class="quote">«<span class="quote">misspeaking</span>»</span> emerged. Finally, the story
1699 broke back into the mainstream press. In the end, Lott was forced to
1700 resign as senate majority leader.<a href="#ftn.idp7453264" class="footnote" name="idp7453264"><sup class="footnote">[43]</sup></a>
1701 </p><a class="indexterm" name="idxmediacommercialimperativesof"></a><p>
1702 This different cycle is possible because the same commercial pressures
1703 don't exist with blogs as with other ventures. Television and
1704 newspapers are commercial entities. They must work to keep attention.
1705 If they lose readers, they lose revenue. Like sharks, they must move
1706 on.
1707 </p><a class="indexterm" name="idp7456704"></a><a class="indexterm" name="idp7457680"></a><p>
1708 But bloggers don't have a similar constraint. They can obsess, they
1709 can focus, they can get serious. If a particular blogger writes a
1710 particularly interesting story, more and more people link to that
1711 story. And as the number of links to a particular story increases, it
1712 rises in the ranks of stories. People read what is popular; what is
1713 popular has been selected by a very democratic process of
1714 peer-generated rankings.
1715 </p><a class="indexterm" name="idp7459504"></a><a class="indexterm" name="idxjournalism"></a><a class="indexterm" name="idxwinerdave"></a><p>
1716 There's a second way, as well, in which blogs have a different cycle
1717
1718 from the mainstream press. As Dave Winer, one of the fathers of this
1719 movement and a software author for many decades, told me, another
1720 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
1721 have to take the conflict of interest</span>»</span> out of journalism, Winer told me.
1722 <span class="quote">«<span class="quote">An amateur journalist simply doesn't have a conflict of interest, or the
1723 conflict of interest is so easily disclosed that you know you can sort of
1724 get it out of the way.</span>»</span>
1725 </p><a class="indexterm" name="idp7465200"></a><a class="indexterm" name="idp7465952"></a><a class="indexterm" name="idp7466960"></a><a class="indexterm" name="idp7467712"></a><p>
1726 These conflicts become more important as media becomes more
1727 concentrated (more on this below). A concentrated media can hide more
1728 from the public than an unconcentrated media can&#8212;as CNN admitted
1729 it did after the Iraq war because it was afraid of the consequences to
1730 its own employees.<a href="#ftn.idp7426736" class="footnote" name="idp7426736"><sup class="footnote">[44]</sup></a>
1731 It also needs to sustain a more coherent account. (In the middle of
1732 the Iraq war, I read a post on the Internet from someone who was at
1733 that time listening to a satellite uplink with a reporter in Iraq. The
1734 New York headquarters was telling the reporter over and over that her
1735 account of the war was too bleak: She needed to offer a more
1736 optimistic story. When she told New York that wasn't warranted, they
1737 told her that <span class="emphasis"><em>they</em></span> were writing <span class="quote">«<span class="quote">the story.</span>»</span>)
1738 </p><a class="indexterm" name="idp7471440"></a><p>
1739 Blog space gives amateurs a way to enter the
1740 debate&#8212;<span class="quote">«<span class="quote">amateur</span>»</span> not in the sense of inexperienced,
1741 but in the sense of an Olympic athlete, meaning not paid by anyone to
1742 give their reports. It allows for a much broader range of input into a
1743 story, as reporting on the Columbia disaster revealed, when hundreds
1744 from across the southwest United States turned to the Internet to
1745 retell what they had seen.<a href="#ftn.idp7473408" class="footnote" name="idp7473408"><sup class="footnote">[45]</sup></a>
1746 And it drives readers to read across the range of accounts and
1747 <span class="quote">«<span class="quote">triangulate,</span>»</span> as Winer puts it, the truth. Blogs, Winer says, are
1748 <span class="quote">«<span class="quote">communicating directly with our constituency, and the middle man is
1749 out of it</span>»</span>&#8212;with all the benefits, and costs, that might entail.
1750 </p><p>
1751 Winer is optimistic about the future of journalism infected
1752 with blogs. <span class="quote">«<span class="quote">It's going to become an essential skill,</span>»</span> Winer predicts,
1753 for public figures and increasingly for private figures as well. It's
1754 not clear that <span class="quote">«<span class="quote">journalism</span>»</span> is happy about this&#8212;some journalists
1755 have been told to curtail their blogging.<a href="#ftn.idp7476928" class="footnote" name="idp7476928"><sup class="footnote">[46]</sup></a>
1756 But it is clear that we are still in transition. <span class="quote">«<span class="quote">A
1757
1758
1759 lot of what we are doing now is warm-up exercises,</span>»</span> Winer told me.
1760 There is a lot that must mature before this space has its mature effect.
1761 And as the inclusion of content in this space is the least infringing use
1762 of the Internet (meaning infringing on copyright), Winer said, <span class="quote">«<span class="quote">we will
1763 be the last thing that gets shut down.</span>»</span>
1764 </p><a class="indexterm" name="idp7485856"></a><p>
1765 This speech affects democracy. Winer thinks that happens because <span class="quote">«<span class="quote">you
1766 don't have to work for somebody who controls, [for] a gatekeeper.</span>»</span>
1767 That is true. But it affects democracy in another way as well.  As
1768 more and more citizens express what they think, and defend it in
1769 writing, that will change the way people understand public issues. It
1770 is easy to be wrong and misguided in your head. It is harder when the
1771 product of your mind can be criticized by others. Of course, it is a
1772 rare human who admits that he has been persuaded that he is wrong. But
1773 it is even rarer for a human to ignore when he has been proven wrong.
1774 The writing of ideas, arguments, and criticism improves democracy.
1775 Today there are probably a couple of million blogs where such writing
1776 happens. When there are ten million, there will be something
1777 extraordinary to report.
1778 </p><a class="indexterm" name="idp7488480"></a><a class="indexterm" name="idp7489456"></a><a class="indexterm" name="idp7490432"></a><a class="indexterm" name="idp7491408"></a><a class="indexterm" name="idp7492384"></a><a class="indexterm" name="idp7493360"></a><a class="indexterm" name="idp7494336"></a><a class="indexterm" name="idxbrownjohnseely"></a><a class="indexterm" name="idxadvertising1"></a><p>
1779 <span class="strong"><strong>John Seely Brown</strong></span> is the chief
1780 scientist of the Xerox Corporation.  His work, as his Web site
1781 describes it, is <span class="quote">«<span class="quote">human learning and &#8230; the creation of
1782 knowledge ecologies for creating &#8230; innovation.</span>»</span>
1783 </p><p>
1784 Brown thus looks at these technologies of digital creativity a bit
1785 differently from the perspectives I've sketched so far. I'm sure he
1786 would be excited about any technology that might improve
1787 democracy. But his real excitement comes from how these technologies
1788 affect learning.
1789 </p><p>
1790 As Brown believes, we learn by tinkering. When <span class="quote">«<span class="quote">a lot of us grew up,</span>»</span>
1791 he explains, that tinkering was done <span class="quote">«<span class="quote">on motorcycle engines, lawnmower
1792 engines, automobiles, radios, and so on.</span>»</span> But digital technologies
1793 enable a different kind of tinkering&#8212;with abstract ideas though
1794 in concrete form. The kids at Just Think! not only think about how a
1795 commercial portrays a politician; using digital technology, they can
1796
1797 take the commercial apart and manipulate it, tinker with it to see how
1798 it does what it does. Digital technologies launch a kind of bricolage,
1799 or <span class="quote">«<span class="quote">free collage,</span>»</span> as Brown calls it. Many get to add to or transform
1800 the tinkering of many others.
1801 </p><p>
1802 The best large-scale example of this kind of tinkering so far is free
1803 software or open-source software (FS/OSS). FS/OSS is software whose
1804 source code is shared. Anyone can download the technology that makes a
1805 FS/OSS program run. And anyone eager to learn how a particular bit of
1806 FS/OSS technology works can tinker with the code.
1807 </p><p>
1808 This opportunity creates a <span class="quote">«<span class="quote">completely new kind of learning platform,</span>»</span>
1809 as Brown describes. <span class="quote">«<span class="quote">As soon as you start doing that, you &#8230;
1810 unleash a free collage on the community, so that other people can
1811 start looking at your code, tinkering with it, trying it out, seeing
1812 if they can improve it.</span>»</span> Each effort is a kind of
1813 apprenticeship. <span class="quote">«<span class="quote">Open source becomes a major apprenticeship platform.</span>»</span>
1814 </p><p>
1815 In this process, <span class="quote">«<span class="quote">the concrete things you tinker with are abstract.
1816 They are code.</span>»</span> Kids are <span class="quote">«<span class="quote">shifting to the ability to tinker in the
1817 abstract, and this tinkering is no longer an isolated activity that
1818 you're doing in your garage. You are tinkering with a community
1819 platform. &#8230;  You are tinkering with other people's stuff. The more
1820 you tinker the more you improve.</span>»</span> The more you improve, the more you
1821 learn.
1822 </p><p>
1823 This same thing happens with content, too. And it happens in the same
1824 collaborative way when that content is part of the Web. As Brown puts
1825 it, <span class="quote">«<span class="quote">the Web [is] the first medium that truly honors multiple forms of
1826 intelligence.</span>»</span> Earlier technologies, such as the typewriter or word
1827 processors, helped amplify text. But the Web amplifies much more than
1828 text. <span class="quote">«<span class="quote">The Web &#8230; says if you are musical, if you are artistic, if
1829 you are visual, if you are interested in film &#8230; [then] there is a
1830 lot you can start to do on this medium. [It] can now amplify and honor
1831 these multiple forms of intelligence.</span>»</span>
1832 </p><a class="indexterm" name="idp7508304"></a><a class="indexterm" name="idp7509280"></a><p>
1833 Brown is talking about what Elizabeth Daley, Stephanie Barish, and
1834 Just Think! teach: that this tinkering with culture teaches as well
1835
1836
1837 as creates. It develops talents differently, and it builds a different
1838 kind of recognition.
1839 </p><p>
1840 Yet the freedom to tinker with these objects is not guaranteed.
1841 Indeed, as we'll see through the course of this book, that freedom is
1842 increasingly highly contested. While there's no doubt that your father
1843 had the right to tinker with the car engine, there's great doubt that
1844 your child will have the right to tinker with the images she finds all
1845 around.  The law and, increasingly, technology interfere with a
1846 freedom that technology, and curiosity, would otherwise ensure.
1847 </p><p>
1848 These restrictions have become the focus of researchers and scholars.
1849 Professor Ed Felten of Princeton (whom we'll see more of in chapter
1850 <a class="xref" href="#property-i" title="Chapter 10. «Property»">10</a>)
1851 has developed a powerful argument in favor of the <span class="quote">«<span class="quote">right to
1852 tinker</span>»</span> as it applies to computer science and to knowledge in
1853 general.<a href="#ftn.idp7513440" class="footnote" name="idp7513440"><sup class="footnote">[47]</sup></a>
1854 But Brown's concern is earlier, or younger, or more fundamental. It is
1855 about the learning that kids can do, or can't do, because of the law.
1856 </p><p>
1857 <span class="quote">«<span class="quote">This is where education in the twenty-first century is going,</span>»</span> Brown
1858 explains. We need to <span class="quote">«<span class="quote">understand how kids who grow up digital think
1859 and want to learn.</span>»</span>
1860 </p><p>
1861 <span class="quote">«<span class="quote">Yet,</span>»</span> as Brown continued, and as the balance of this book will
1862 evince, <span class="quote">«<span class="quote">we are building a legal system that completely suppresses the
1863 natural tendencies of today's digital kids. &#8230; We're building an
1864 architecture that unleashes 60 percent of the brain [and] a legal
1865 system that closes down that part of the brain.</span>»</span>
1866 </p><a class="indexterm" name="idp7518224"></a><p>
1867 We're building a technology that takes the magic of Kodak, mixes
1868 moving images and sound, and adds a space for commentary and an
1869 opportunity to spread that creativity everywhere. But we're building
1870 the law to close down that technology.
1871 </p><p>
1872 <span class="quote">«<span class="quote">No way to run a culture,</span>»</span> as Brewster Kahle, whom we'll meet in
1873 chapter <a class="xref" href="#collectors" title="Chapter 9. Collectors">9</a>,
1874 quipped to me in a rare moment of despondence.
1875 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7263904" class="footnote"><p><a href="#idp7263904" class="para"><sup class="para">[26] </sup></a>
1876
1877 Reese V. Jenkins, <em class="citetitle">Images and Enterprise</em> (Baltimore: Johns Hopkins University Press, 1975), 112.
1878 </p></div><div id="ftn.idp7187744" class="footnote"><p><a href="#idp7187744" class="para"><sup class="para">[27] </sup></a>
1879
1880 <a class="indexterm" name="idp7267536"></a>
1881 Brian Coe, <em class="citetitle">The Birth of Photography</em> (New York: Taplinger Publishing,
1882 1977), 53.
1883 </p></div><div id="ftn.idp7270928" class="footnote"><p><a href="#idp7270928" class="para"><sup class="para">[28] </sup></a>
1884
1885 Jenkins, 177.
1886 </p></div><div id="ftn.idp7271824" class="footnote"><p><a href="#idp7271824" class="para"><sup class="para">[29] </sup></a>
1887
1888 Based on a chart in Jenkins, p. 178.
1889 </p></div><div id="ftn.idp7266336" class="footnote"><p><a href="#idp7266336" class="para"><sup class="para">[30] </sup></a>
1890
1891 Coe, 58.
1892 </p></div><div id="ftn.idp7282544" class="footnote"><p><a href="#idp7282544" class="para"><sup class="para">[31] </sup></a>
1893
1894 For illustrative cases, see, for example, <em class="citetitle">Pavesich</em>
1895 v. <em class="citetitle">N.E. Life Ins. Co</em>., 50 S.E. 68 (Ga. 1905);
1896 <em class="citetitle">Foster-Milburn Co</em>. v. <em class="citetitle">Chinn</em>, 123090 S.W. 364, 366
1897 (Ky. 1909); <em class="citetitle">Corliss</em> v. <em class="citetitle">Walker</em>, 64 F. 280 (Mass.
1898 Dist. Ct. 1894).
1899 </p></div><div id="ftn.idp7294096" class="footnote"><p><a href="#idp7294096" class="para"><sup class="para">[32] </sup></a>
1900
1901 Samuel D. Warren and Louis D. Brandeis, <span class="quote">«<span class="quote">The Right to Privacy,</span>»</span>
1902 <em class="citetitle">Harvard Law Review</em> 4 (1890): 193.
1903 <a class="indexterm" name="idp7295632"></a>
1904 <a class="indexterm" name="idp7296384"></a>
1905 </p></div><div id="ftn.idp7299872" class="footnote"><p><a href="#idp7299872" class="para"><sup class="para">[33] </sup></a>
1906
1907 See Melville B. Nimmer, <span class="quote">«<span class="quote">The Right of Publicity,</span>»</span> <em class="citetitle">Law and Contemporary
1908 Problems</em> 19 (1954): 203; William L. Prosser, <span class="quote">«<span class="quote">Privacy,</span>»</span> <em class="citetitle">California Law
1909 Review</em> 48 (1960) 398&#8211;407; <em class="citetitle">White</em> v. <em class="citetitle">Samsung Electronics America,
1910 Inc</em>., 971 F.  2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951
1911 (1993).
1912 </p></div><div id="ftn.idp7326112" class="footnote"><p><a href="#idp7326112" class="para"><sup class="para">[34] </sup></a>
1913
1914 H. Edward Goldberg, <span class="quote">«<span class="quote">Essential Presentation Tools: Hardware and
1915 Software You Need to Create Digital Multimedia Presentations,</span>»</span>
1916 cadalyst, February 2002, available at
1917 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #7</a>.
1918 </p></div><div id="ftn.idp7336464" class="footnote"><p><a href="#idp7336464" class="para"><sup class="para">[35] </sup></a>
1919
1920 Judith Van Evra, <em class="citetitle">Television and Child Development</em> (Hillsdale, N.J.:
1921 Lawrence Erlbaum Associates, 1990); <span class="quote">«<span class="quote">Findings on Family and TV
1922 Study,</span>»</span> <em class="citetitle">Denver Post</em>, 25 May 1997, B6.
1923 </p></div><div id="ftn.idp7330784" class="footnote"><p><a href="#idp7330784" class="para"><sup class="para">[36] </sup></a>
1924
1925 Interview with Elizabeth Daley and Stephanie Barish, 13 December
1926 2002.
1927 <a class="indexterm" name="idp7345904"></a>
1928 <a class="indexterm" name="idp7346656"></a>
1929 </p></div><div id="ftn.idp7348448" class="footnote"><p><a href="#idp7348448" class="para"><sup class="para">[37] </sup></a>
1930
1931 See Scott Steinberg, <span class="quote">«<span class="quote">Crichton Gets Medieval on PCs,</span>»</span> E!online, 4
1932 November 2000, available at
1933 <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,
1934 available at
1935 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #9</a>.
1936 </p></div><div id="ftn.idp7357088" class="footnote"><p><a href="#idp7357088" class="para"><sup class="para">[38] </sup></a>
1937
1938 Interview with Daley and Barish.
1939 <a class="indexterm" name="idp7357856"></a>
1940 </p></div><div id="ftn.idp7359072" class="footnote"><p><a href="#idp7359072" class="para"><sup class="para">[39] </sup></a>
1941
1942 Ibid.
1943 </p></div><div id="ftn.idp7427952" class="footnote"><p><a href="#idp7427952" class="para"><sup class="para">[40] </sup></a>
1944
1945 See, for example, Alexis de Tocqueville, <em class="citetitle">Democracy in America</em>,
1946 bk. 1, trans.  Henry Reeve (New York: Bantam Books, 2000), ch. 16.
1947 </p></div><div id="ftn.idp7430672" class="footnote"><p><a href="#idp7430672" class="para"><sup class="para">[41] </sup></a>
1948
1949 Bruce Ackerman and James Fishkin, <span class="quote">«<span class="quote">Deliberation Day,</span>»</span> <em class="citetitle">Journal of
1950 Political Philosophy</em> 10 (2) (2002): 129.
1951 </p></div><div id="ftn.idp7434784" class="footnote"><p><a href="#idp7434784" class="para"><sup class="para">[42] </sup></a>
1952
1953 Cass Sunstein, <em class="citetitle">Republic.com</em> (Princeton: Princeton University Press, 2001),
1954 65&#8211;80, 175, 182, 183, 192.
1955 </p></div><div id="ftn.idp7453264" class="footnote"><p><a href="#idp7453264" class="para"><sup class="para">[43] </sup></a>
1956
1957 Noah Shachtman, <span class="quote">«<span class="quote">With Incessant Postings, a Pundit Stirs the Pot,</span>»</span> New
1958 York Times, 16 January 2003, G5.
1959 </p></div><div id="ftn.idp7426736" class="footnote"><p><a href="#idp7426736" class="para"><sup class="para">[44] </sup></a>
1960
1961 Telephone interview with David Winer, 16 April 2003.
1962 </p></div><div id="ftn.idp7473408" class="footnote"><p><a href="#idp7473408" class="para"><sup class="para">[45] </sup></a>
1963
1964 John Schwartz, <span class="quote">«<span class="quote">Loss of the Shuttle: The Internet; A Wealth of
1965 Information Online,</span>»</span> <em class="citetitle">New York Times</em>, 2 February 2003, A28; Staci
1966 D. Kramer, <span class="quote">«<span class="quote">Shuttle Disaster Coverage Mixed, but Strong Overall,</span>»</span>
1967 Online Journalism Review, 2 February 2003, available at
1968 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #10</a>.
1969 </p></div><div id="ftn.idp7476928" class="footnote"><p><a href="#idp7476928" class="para"><sup class="para">[46] </sup></a>
1970
1971 <a class="indexterm" name="idp7479360"></a>
1972 <a class="indexterm" name="idp7480112"></a>
1973 <a class="indexterm" name="idp7480864"></a>
1974 <a class="indexterm" name="idp7481616"></a>
1975 See Michael Falcone, <span class="quote">«<span class="quote">Does an Editor's Pencil Ruin a Web Log?</span>»</span> <em class="citetitle">New
1976 York Times</em>, 29 September 2003, C4. (<span class="quote">«<span class="quote">Not all news organizations have
1977 been as accepting of employees who blog. Kevin Sites, a CNN
1978 correspondent in Iraq who started a blog about his reporting of the
1979 war on March 9, stopped posting 12 days later at his bosses'
1980 request. Last year Steve Olafson, a <em class="citetitle">Houston Chronicle</em> reporter, was
1981 fired for keeping a personal Web log, published under a pseudonym,
1982 that dealt with some of the issues and people he was covering.</span>»</span>)
1983 </p></div><div id="ftn.idp7513440" class="footnote"><p><a href="#idp7513440" class="para"><sup class="para">[47] </sup></a>
1984
1985 See, for example, Edward Felten and Andrew Appel, <span class="quote">«<span class="quote">Technological Access
1986 Control Interferes with Noninfringing Scholarship,</span>»</span> <em class="citetitle">Communications
1987 of the Association for Computer Machinery</em> 43 (2000): 9.
1988 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="catalogs"></a>Chapter 3. Catalogs</h2></div></div></div><a class="indexterm" name="idp7522848"></a><a class="indexterm" name="idp7523600"></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>
1989 <span class="strong"><strong>In the fall</strong></span> of 2002, Jesse Jordan
1990 of Oceanside, New York, enrolled as a freshman at Rensselaer
1991 Polytechnic Institute, in Troy, New York.  His major at RPI was
1992 information technology. Though he is not a programmer, in October
1993 Jesse decided to begin to tinker with search engine technology that
1994 was available on the RPI network.
1995 </p><p>
1996 RPI is one of America's foremost technological research institutions.
1997 It offers degrees in fields ranging from architecture and engineering
1998 to information sciences. More than 65 percent of its five thousand
1999 undergraduates finished in the top 10 percent of their high school
2000 class. The school is thus a perfect mix of talent and experience to
2001 imagine and then build, a generation for the network age.
2002 </p><p>
2003 RPI's computer network links students, faculty, and administration to
2004 one another. It also links RPI to the Internet. Not everything
2005 available on the RPI network is available on the Internet. But the
2006 network is designed to enable students to get access to the Internet,
2007 as well as more intimate access to other members of the RPI community.
2008 </p><a class="indexterm" name="idxgoogle"></a><p>
2009 Search engines are a measure of a network's intimacy. Google
2010
2011 brought the Internet much closer to all of us by fantastically
2012 improving the quality of search on the network. Specialty search
2013 engines can do this even better. The idea of <span class="quote">«<span class="quote">intranet</span>»</span> search
2014 engines, search engines that search within the network of a particular
2015 institution, is to provide users of that institution with better
2016 access to material from that institution.  Businesses do this all the
2017 time, enabling employees to have access to material that people
2018 outside the business can't get. Universities do it as well.
2019 </p><a class="indexterm" name="idxjordanjesse"></a><a class="indexterm" name="idxmicrosoftnetworkfilesystemof"></a><p>
2020 These engines are enabled by the network technology itself.
2021 Microsoft, for example, has a network file system that makes it very
2022 easy for search engines tuned to that network to query the system for
2023 information about the publicly (within that network) available
2024 content.  Jesse's search engine was built to take advantage of this
2025 technology. It used Microsoft's network file system to build an index
2026 of all the files available within the RPI network.
2027 </p><a class="indexterm" name="idp7541232"></a><p>
2028 Jesse's wasn't the first search engine built for the RPI network.
2029 Indeed, his engine was a simple modification of engines that others
2030 had built. His single most important improvement over those engines
2031 was to fix a bug within the Microsoft file-sharing system that could
2032 cause a user's computer to crash. With the engines that existed
2033 before, if you tried to access a file through a Windows browser that
2034 was on a computer that was off-line, your computer could crash. Jesse
2035 modified the system a bit to fix that problem, by adding a button that
2036 a user could click to see if the machine holding the file was still
2037 on-line.
2038 </p><a class="indexterm" name="idp7543232"></a><p>
2039 Jesse's engine went on-line in late October. Over the following six
2040 months, he continued to tweak it to improve its functionality. By
2041 March, the system was functioning quite well. Jesse had more than one
2042 million files in his directory, including every type of content that might
2043 be on users' computers.
2044 </p><a class="indexterm" name="idp7544912"></a><p>
2045 Thus the index his search engine produced included pictures, which
2046 students could use to put on their own Web sites; copies of notes or
2047 research; copies of information pamphlets; movie clips that students
2048 might have created; university brochures&#8212;basically anything that
2049
2050 users of the RPI network made available in a public folder of their
2051 computer.
2052 </p><a class="indexterm" name="idp7546944"></a><a class="indexterm" name="idp7547696"></a><p>
2053 But the index also included music files. In fact, one quarter of the
2054 files that Jesse's search engine listed were music files. But that
2055 means, of course, that three quarters were not, and&#8212;so that this
2056 point is absolutely clear&#8212;Jesse did nothing to induce people to
2057 put music files in their public folders. He did nothing to target the
2058 search engine to these files. He was a kid tinkering with a
2059 Google-like technology at a university where he was studying
2060 information science, and hence, tinkering was the aim. Unlike Google,
2061 or Microsoft, for that matter, he made no money from this tinkering;
2062 he was not connected to any business that would make any money from
2063 this experiment. He was a kid tinkering with technology in an
2064 environment where tinkering with technology was precisely what he was
2065 supposed to do.
2066 </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="idp7556400"></a><p>
2067 On April 3, 2003, Jesse was contacted by the dean of students at
2068 RPI. The dean informed Jesse that the Recording Industry Association
2069 of America, the RIAA, would be filing a lawsuit against him and three
2070 other students whom he didn't even know, two of them at other
2071 universities.  A few hours later, Jesse was served with papers from
2072 the suit.  As he read these papers and watched the news reports about
2073 them, he was increasingly astonished.
2074 </p><p>
2075 <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
2076 wrong. &#8230;  I don't think there's anything wrong with the search
2077 engine that I ran or &#8230; what I had done to it. I mean, I hadn't
2078 modified it in any way that promoted or enhanced the work of
2079 pirates. I just modified the search engine in a way that would make it
2080 easier to use</span>»</span>&#8212;again, a <span class="emphasis"><em>search engine</em></span>,
2081 which Jesse had not himself built, using the Windows filesharing
2082 system, which Jesse had not himself built, to enable members of the
2083 RPI community to get access to content, which Jesse had not himself
2084 created or posted, and the vast majority of which had nothing to do
2085 with music.
2086 </p><a class="indexterm" name="idp7560976"></a><a class="indexterm" name="idp7561952"></a><a class="indexterm" name="idp7562960"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitsindividualdefendantsintimidatedby"></a><a class="indexterm" name="idp7565616"></a><a class="indexterm" name="idxrecordingindustryassociationofamericariaaintimidationtacticsof"></a><p>
2087 But the RIAA branded Jesse a pirate. They claimed he operated a
2088 network and had therefore <span class="quote">«<span class="quote">willfully</span>»</span> violated copyright laws. They
2089
2090 demanded that he pay them the damages for his wrong. For cases of
2091 <span class="quote">«<span class="quote">willful infringement,</span>»</span> the Copyright Act specifies something lawyers
2092 call <span class="quote">«<span class="quote">statutory damages.</span>»</span> These damages permit a copyright owner to
2093 claim $150,000 per infringement. As the RIAA alleged more than one
2094 hundred specific copyright infringements, they therefore demanded that
2095 Jesse pay them at least $15,000,000.
2096 </p><a class="indexterm" name="idp7570160"></a><a class="indexterm" name="idp7570912"></a><p>
2097 Similar lawsuits were brought against three other students: one other
2098 student at RPI, one at Michigan Technical University, and one at
2099 Princeton. Their situations were similar to Jesse's. Though each case
2100 was different in detail, the bottom line in each was exactly the same:
2101 huge demands for <span class="quote">«<span class="quote">damages</span>»</span> that the RIAA claimed it was entitled to.
2102 If you added up the claims, these four lawsuits were asking courts in
2103 the United States to award the plaintiffs close to $100
2104 <span class="emphasis"><em>billion</em></span>&#8212;six times the
2105 <span class="emphasis"><em>total</em></span> profit of the film industry in
2106 2001.<a href="#ftn.idp7573568" class="footnote" name="idp7573568"><sup class="footnote">[48]</sup></a>
2107 </p><a class="indexterm" name="idp7575344"></a><p>
2108 Jesse called his parents. They were supportive but a bit frightened.
2109 An uncle was a lawyer. He began negotiations with the RIAA. They
2110 demanded to know how much money Jesse had. Jesse had saved
2111 $12,000 from summer jobs and other employment. They demanded
2112 $12,000 to dismiss the case.
2113 </p><a class="indexterm" name="idp7577008"></a><p>
2114 The RIAA wanted Jesse to admit to doing something wrong. He
2115 refused. They wanted him to agree to an injunction that would
2116 essentially make it impossible for him to work in many fields of
2117 technology for the rest of his life. He refused. They made him
2118 understand that this process of being sued was not going to be
2119 pleasant. (As Jesse's father recounted to me, the chief lawyer on the
2120 case, Matt Oppenheimer, told Jesse, <span class="quote">«<span class="quote">You don't want to pay another
2121 visit to a dentist like me.</span>»</span>) And throughout, the RIAA insisted it
2122 would not settle the case until it took every penny Jesse had saved.
2123 </p><a class="indexterm" name="idp7579600"></a><p>
2124 Jesse's family was outraged at these claims. They wanted to fight.
2125 But Jesse's uncle worked to educate the family about the nature of the
2126 American legal system. Jesse could fight the RIAA. He might even
2127 win. But the cost of fighting a lawsuit like this, Jesse was told, would be
2128 at least $250,000. If he won, he would not recover that money. If he
2129
2130 won, he would have a piece of paper saying he had won, and a piece of
2131 paper saying he and his family were bankrupt.
2132 </p><p>
2133 So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
2134 or $12,000 and a settlement.
2135 </p><a class="indexterm" name="idp7581984"></a><a class="indexterm" name="idp7582992"></a><a class="indexterm" name="idp7584000"></a><p>
2136 The recording industry insists this is a matter of law and morality.
2137 Let's put the law aside for a moment and think about the morality.
2138 Where is the morality in a lawsuit like this? What is the virtue in
2139 scapegoatism? The RIAA is an extraordinarily powerful lobby. The
2140 president of the RIAA is reported to make more than $1 million a year.
2141 Artists, on the other hand, are not well paid. The average recording
2142 artist makes $45,900.<a href="#ftn.idp7585712" class="footnote" name="idp7585712"><sup class="footnote">[49]</sup></a>
2143 There are plenty of ways for the RIAA to affect
2144 and direct policy. So where is the morality in taking money from a
2145 student for running a search engine?<a href="#ftn.idp7587280" class="footnote" name="idp7587280"><sup class="footnote">[50]</sup></a>
2146 </p><a class="indexterm" name="idp7588944"></a><a class="indexterm" name="idp7590080"></a><p>
2147 On June 23, Jesse wired his savings to the lawyer working for the
2148 RIAA. The case against him was then dismissed. And with this, this
2149 kid who had tinkered a computer into a $15 million lawsuit became an
2150 activist:
2151 </p><div class="blockquote"><blockquote class="blockquote"><p>
2152 I was definitely not an activist [before]. I never really meant to be
2153 an activist. &#8230; [But] I've been pushed into this. In no way did I
2154 ever foresee anything like this, but I think it's just completely
2155 absurd what the RIAA has done.
2156 </p></blockquote></div><p>
2157 Jesse's parents betray a certain pride in their reluctant activist. As
2158 his father told me, Jesse <span class="quote">«<span class="quote">considers himself very conservative, and so do
2159 I. &#8230; He's  not a tree hugger. &#8230; I  think it's bizarre that they would
2160 pick on him. But he wants to let people know that they're sending the
2161 wrong message. And he wants to correct the record.</span>»</span>
2162 </p><a class="indexterm" name="idp7593984"></a><a class="indexterm" name="idp7594960"></a><a class="indexterm" name="idp7595936"></a><a class="indexterm" name="idp7596912"></a><a class="indexterm" name="idp7598048"></a><a class="indexterm" name="idp7599024"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7573568" class="footnote"><p><a href="#idp7573568" class="para"><sup class="para">[48] </sup></a>
2163
2164
2165 Tim Goral, <span class="quote">«<span class="quote">Recording Industry Goes After Campus P-2-P Networks:
2166 Suit Alleges $97.8 Billion in Damages,</span>»</span> <em class="citetitle">Professional Media Group LCC</em> 6
2167 (2003): 5, available at 2003 WL 55179443.
2168 </p></div><div id="ftn.idp7585712" class="footnote"><p><a href="#idp7585712" class="para"><sup class="para">[49] </sup></a>
2169
2170 Occupational Employment Survey, U.S. Dept. of Labor (2001)
2171 (27&#8211;2042&#8212;Musicians and Singers). See also National Endowment for
2172 the Arts, <em class="citetitle">More Than One in a Blue Moon</em> (2000).
2173 </p></div><div id="ftn.idp7587280" class="footnote"><p><a href="#idp7587280" class="para"><sup class="para">[50] </sup></a>
2174
2175 Douglas Lichtman makes a related point in <span class="quote">«<span class="quote">KaZaA and Punishment,</span>»</span>
2176 <em class="citetitle">Wall Street Journal</em>, 10 September 2003, A24.
2177 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="pirates"></a>Chapter 4. <span class="quote">«<span class="quote">Pirates</span>»</span></h2></div></div></div><a class="indexterm" name="idxpiracyindevelopmentofcontentindustry"></a><a class="indexterm" name="idp7603312"></a><p>
2178 <span class="strong"><strong>If <span class="quote">«<span class="quote">piracy</span>»</span> means</strong></span>
2179 using the creative property of others without their
2180 permission&#8212;if <span class="quote">«<span class="quote">if value, then right</span>»</span> is
2181 true&#8212;then the history of the content industry is a history of
2182 piracy. Every important sector of <span class="quote">«<span class="quote">big media</span>»</span>
2183 today&#8212;film, records, radio, and cable TV&#8212;was born of a
2184 kind of piracy so defined. The consistent story is how last
2185 generation's pirates join this generation's country club&#8212;until
2186 now.
2187 </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>
2188 The film industry of Hollywood was built by fleeing pirates.<a href="#ftn.idp7608016" class="footnote" name="idp7608016"><sup class="footnote">[51]</sup></a>
2189 Creators and directors migrated from the East Coast to California in
2190 the early twentieth century in part to escape controls that patents
2191 granted the inventor of filmmaking, Thomas Edison. These controls were
2192 exercised through a monopoly <span class="quote">«<span class="quote">trust,</span>»</span> the Motion Pictures Patents
2193 Company, and were based on Thomas Edison's creative
2194 property&#8212;patents.  Edison formed the MPPC to exercise the rights
2195 this creative property
2196
2197 gave him, and the MPPC was serious about the control it demanded.
2198 </p><p>
2199 As one commentator tells one part of the story,
2200 </p><div class="blockquote"><blockquote class="blockquote"><p>
2201 A January 1909 deadline was set for all companies to comply with
2202 the license. By February, unlicensed outlaws, who referred to
2203 themselves as independents protested the trust and carried on
2204 business without submitting to the Edison monopoly. In the
2205 summer of 1909 the independent movement was in full-swing,
2206 with producers and theater owners using illegal equipment and
2207 imported film stock to create their own underground market.
2208 </p><a class="indexterm" name="idp7613312"></a><a class="indexterm" name="idp7613952"></a><a class="indexterm" name="idp7614704"></a><p>
2209 With the country experiencing a tremendous expansion in the number of
2210 nickelodeons, the Patents Company reacted to the independent movement
2211 by forming a strong-arm subsidiary known as the General Film Company
2212 to block the entry of non-licensed independents. With coercive tactics
2213 that have become legendary, General Film confiscated unlicensed
2214 equipment, discontinued product supply to theaters which showed
2215 unlicensed films, and effectively monopolized distribution with the
2216 acquisition of all U.S. film exchanges, except for the one owned by
2217 the independent William Fox who defied the Trust even after his
2218 license was revoked.<a href="#ftn.idp7616352" class="footnote" name="idp7616352"><sup class="footnote">[52]</sup></a>
2219 </p></blockquote></div><p>
2220 The Napsters of those days, the <span class="quote">«<span class="quote">independents,</span>»</span> were companies like
2221 Fox. And no less than today, these independents were vigorously
2222 resisted.  <span class="quote">«<span class="quote">Shooting was disrupted by machinery stolen, and
2223 `accidents' resulting in loss of negatives, equipment, buildings and
2224 sometimes life and limb frequently occurred.</span>»</span><a href="#ftn.idp7621808" class="footnote" name="idp7621808"><sup class="footnote">[53]</sup></a>
2225 That led the independents to flee the East
2226 Coast. California was remote enough from Edison's reach that
2227 filmmakers there could pirate his inventions without fear of the
2228 law. And the leaders of Hollywood filmmaking, Fox most prominently,
2229 did just that.
2230 </p><p>
2231 Of course, California grew quickly, and the effective enforcement
2232 of federal law eventually spread west. But because patents grant the
2233 patent holder a truly <span class="quote">«<span class="quote">limited</span>»</span> monopoly (just seventeen years at that
2234
2235
2236 time), by the time enough federal marshals appeared, the patents had
2237 expired. A new industry had been born, in part from the piracy of
2238 Edison's creative property.
2239 </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>
2240 The record industry was born of another kind of piracy, though to see
2241 how requires a bit of detail about the way the law regulates music.
2242 </p><a class="indexterm" name="idxfourneauxhenri"></a><a class="indexterm" name="idp7630016"></a><p>
2243 At the time that Edison and Henri Fourneaux invented machines
2244 for reproducing music (Edison the phonograph, Fourneaux the player
2245 piano), the law gave composers the exclusive right to control copies of
2246 their music and the exclusive right to control public performances of
2247 their music. In other words, in 1900, if I wanted a copy of Phil Russel's
2248 1899 hit <span class="quote">«<span class="quote">Happy Mose,</span>»</span> the law said I would have to pay for the right
2249 to get a copy of the musical score, and I would also have to pay for the
2250 right to perform it publicly.
2251 </p><a class="indexterm" name="idp7632064"></a><p>
2252 But what if I wanted to record <span class="quote">«<span class="quote">Happy Mose,</span>»</span> using Edison's phonograph
2253 or Fourneaux's player piano?  Here the law stumbled. It was clear
2254 enough that I would have to buy any copy of the musical score that I
2255 performed in making this recording. And it was clear enough that I
2256 would have to pay for any public performance of the work I was
2257 recording.  But it wasn't totally clear that I would have to pay for a
2258 <span class="quote">«<span class="quote">public performance</span>»</span> if I recorded the song in my own house (even
2259 today, you don't owe the Beatles anything if you sing their songs in
2260 the shower), or if I recorded the song from memory (copies in your
2261 brain are not&#8212;yet&#8212; regulated by copyright law). So if I
2262 simply sang the song into a recording device in the privacy of my own
2263 home, it wasn't clear that I owed the composer anything. And more
2264 importantly, it wasn't clear whether I owed the composer anything if I
2265 then made copies of those recordings.  Because of this gap in the law,
2266 then, I could effectively pirate someone else's song without paying
2267 its composer anything.
2268 </p><a class="indexterm" name="idp7634224"></a><p>
2269 The composers (and publishers) were none too happy about
2270
2271 this capacity to pirate. As South Dakota senator Alfred Kittredge
2272 put it,
2273 <a class="indexterm" name="idp7636640"></a>
2274 </p><div class="blockquote"><blockquote class="blockquote"><p>
2275 Imagine the injustice of the thing. A composer writes a song or an
2276 opera. A publisher buys at great expense the rights to the same and
2277 copyrights it. Along come the phonographic companies and companies who
2278 cut music rolls and deliberately steal the work of the brain of the
2279 composer and publisher without any regard for [their]
2280 rights.<a href="#ftn.idp7638384" class="footnote" name="idp7638384"><sup class="footnote">[54]</sup></a>
2281 </p></blockquote></div><a class="indexterm" name="idp7640928"></a><p>
2282 The innovators who developed the technology to record other
2283 people's works were <span class="quote">«<span class="quote">sponging upon the toil, the work, the talent, and
2284 genius of American composers,</span>»</span><a href="#ftn.idp7642384" class="footnote" name="idp7642384"><sup class="footnote">[55]</sup></a>
2285 and the <span class="quote">«<span class="quote">music publishing industry</span>»</span>
2286 was thereby <span class="quote">«<span class="quote">at the complete mercy of this one pirate.</span>»</span><a href="#ftn.idp7643952" class="footnote" name="idp7643952"><sup class="footnote">[56]</sup></a>
2287 As John Philip
2288 Sousa put it, in as direct a way as possible, <span class="quote">«<span class="quote">When they make money
2289 out of my pieces, I want a share of it.</span>»</span><a href="#ftn.idp7645296" class="footnote" name="idp7645296"><sup class="footnote">[57]</sup></a>
2290 </p><a class="indexterm" name="idp7646320"></a><a class="indexterm" name="idp7647072"></a><a class="indexterm" name="idp7647824"></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>
2291 These arguments have familiar echoes in the wars of our day. So, too,
2292 do the arguments on the other side. The innovators who developed the
2293 player piano argued that <span class="quote">«<span class="quote">it is perfectly demonstrable that the
2294 introduction of automatic music players has not deprived any composer
2295 of anything he had before their introduction.</span>»</span> Rather, the machines
2296 increased the sales of sheet music.<a href="#ftn.idp7655600" class="footnote" name="idp7655600"><sup class="footnote">[58]</sup></a> In any case, the innovators argued, the job of
2297 Congress was <span class="quote">«<span class="quote">to consider first the interest of [the public], whom
2298 they represent, and whose servants they are.</span>»</span> <span class="quote">«<span class="quote">All talk about
2299 `theft,'</span>»</span> the general counsel of the American Graphophone Company
2300 wrote, <span class="quote">«<span class="quote">is the merest claptrap, for there exists no property in ideas
2301 musical, literary or artistic, except as defined by
2302 statute.</span>»</span><a href="#ftn.idp7657984" class="footnote" name="idp7657984"><sup class="footnote">[59]</sup></a>
2303 </p><a class="indexterm" name="idp7659072"></a><p>
2304 The law soon resolved this battle in favor of the composer
2305 <span class="emphasis"><em>and</em></span> the recording artist. Congress amended the
2306 law to make sure that composers would be paid for the <span class="quote">«<span class="quote">mechanical
2307 reproductions</span>»</span> of their music. But rather than simply granting the
2308 composer complete control over the right to make mechanical
2309 reproductions, Congress gave recording artists a right to record the
2310 music, at a price set by Congress, once the composer allowed it to be
2311 recorded once. This is the part of
2312
2313
2314 copyright law that makes cover songs possible. Once a composer
2315 authorizes a recording of his song, others are free to record the same
2316 song, so long as they pay the original composer a fee set by the law.
2317 </p><a class="indexterm" name="idxcompulsorylicense"></a><a class="indexterm" name="idxstatutorylicenses"></a><p>
2318 American law ordinarily calls this a <span class="quote">«<span class="quote">compulsory license,</span>»</span> but I will
2319 refer to it as a <span class="quote">«<span class="quote">statutory license.</span>»</span> A statutory license is a license
2320 whose key terms are set by law. After Congress's amendment of the
2321 Copyright Act in 1909, record companies were free to distribute copies
2322 of recordings so long as they paid the composer (or copyright holder)
2323 the fee set by the statute.
2324 </p><a class="indexterm" name="idxgrishamjohn"></a><p>
2325 This is an exception within the law of copyright. When John Grisham
2326 writes a novel, a publisher is free to publish that novel only if
2327 Grisham gives the publisher permission. Grisham, in turn, is free to
2328 charge whatever he wants for that permission. The price to publish
2329 Grisham is thus set by Grisham, and copyright law ordinarily says you
2330 have no permission to use Grisham's work except with permission of
2331 Grisham.
2332 </p><a class="indexterm" name="idp7667904"></a><a class="indexterm" name="idp7668880"></a><p>
2333 But the law governing recordings gives recording artists less. And
2334 thus, in effect, the law <span class="emphasis"><em>subsidizes</em></span> the recording
2335 industry through a kind of piracy&#8212;by giving recording artists a
2336 weaker right than it otherwise gives creative authors. The Beatles
2337 have less control over their creative work than Grisham does. And the
2338 beneficiaries of this less control are the recording industry and the
2339 public. The recording industry gets something of value for less than
2340 it otherwise would pay; the public gets access to a much wider range
2341 of musical creativity. Indeed, Congress was quite explicit about its
2342 reasons for granting this right. Its fear was the monopoly power of
2343 rights holders, and that that power would stifle follow-on
2344 creativity.<a href="#ftn.idp7611184" class="footnote" name="idp7611184"><sup class="footnote">[60]</sup></a>
2345 </p><a class="indexterm" name="idp7672656"></a><a class="indexterm" name="idp7673632"></a><a class="indexterm" name="idp7674608"></a><p>
2346 While the recording industry has been quite coy about this recently,
2347 historically it has been quite a supporter of the statutory license for
2348 records. As a 1967 report from the House Committee on the Judiciary
2349 relates,
2350 </p><div class="blockquote"><blockquote class="blockquote"><p>
2351 the record producers argued vigorously that the compulsory
2352
2353 license system must be retained. They asserted that the record
2354 industry is a half-billion-dollar business of great economic
2355 importance in the United States and throughout the world; records
2356 today are the principal means of disseminating music, and this creates
2357 special problems, since performers need unhampered access to musical
2358 material on nondiscriminatory terms. Historically, the record
2359 producers pointed out, there were no recording rights before 1909 and
2360 the 1909 statute adopted the compulsory license as a deliberate
2361 anti-monopoly condition on the grant of these rights. They argue that
2362 the result has been an outpouring of recorded music, with the public
2363 being given lower prices, improved quality, and a greater
2364 choice.<a href="#ftn.idp7678528" class="footnote" name="idp7678528"><sup class="footnote">[61]</sup></a>
2365 </p></blockquote></div><a class="indexterm" name="idp7679792"></a><a class="indexterm" name="idp7680768"></a><a class="indexterm" name="idp7681744"></a><a class="indexterm" name="idp7682720"></a><p>
2366 By limiting the rights musicians have, by partially pirating their
2367 creative work, the record producers, and the public, benefit.
2368 </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>
2369 Radio was also born of piracy.
2370 </p><p>
2371 When a radio station plays a record on the air, that constitutes a
2372 <span class="quote">«<span class="quote">public performance</span>»</span> of the composer's work.<a href="#ftn.idp7689312" class="footnote" name="idp7689312"><sup class="footnote">[62]</sup></a>
2373 As I described above, the law gives the composer (or copyright holder)
2374 an exclusive right to public performances of his work. The radio
2375 station thus owes the composer money for that performance.
2376 </p><p>
2377 But when the radio station plays a record, it is not only performing a
2378 copy of the <span class="emphasis"><em>composer's</em></span> work. The radio station is
2379 also performing a copy of the <span class="emphasis"><em>recording artist's</em></span>
2380 work. It's one thing to have <span class="quote">«<span class="quote">Happy Birthday</span>»</span> sung on the radio by the
2381 local children's choir; it's quite another to have it sung by the
2382 Rolling Stones or Lyle Lovett. The recording artist is adding to the
2383 value of the composition performed on the radio station.  And if the
2384 law were perfectly consistent, the radio station would have to pay the
2385 recording artist for his work, just as it pays the composer of the
2386 music for his work.
2387 <a class="indexterm" name="idp7696736"></a>
2388
2389
2390 </p><p>
2391 But it doesn't. Under the law governing radio performances, the radio
2392 station does not have to pay the recording artist. The radio station
2393 need only pay the composer. The radio station thus gets a bit of
2394 something for nothing. It gets to perform the recording artist's work
2395 for free, even if it must pay the composer something for the privilege
2396 of playing the song.
2397 </p><a class="indexterm" name="idxmadonna"></a><p>
2398 This difference can be huge. Imagine you compose a piece of music.
2399 Imagine it is your first. You own the exclusive right to authorize
2400 public performances of that music. So if Madonna wants to sing your
2401 song in public, she has to get your permission.
2402 </p><p>
2403 Imagine she does sing your song, and imagine she likes it a lot. She
2404 then decides to make a recording of your song, and it becomes a top
2405 hit. Under our law, every time a radio station plays your song, you
2406 get some money. But Madonna gets nothing, save the indirect effect on
2407 the sale of her CDs. The public performance of her recording is not a
2408 <span class="quote">«<span class="quote">protected</span>»</span> right. The radio station thus gets to
2409 <span class="emphasis"><em>pirate</em></span> the value of Madonna's work without paying
2410 her anything.
2411 </p><a class="indexterm" name="idp7702128"></a><a class="indexterm" name="idp7703104"></a><p>
2412 No doubt, one might argue that, on balance, the recording artists
2413 benefit. On average, the promotion they get is worth more than the
2414 performance rights they give up. Maybe. But even if so, the law
2415 ordinarily gives the creator the right to make this choice. By making
2416 the choice for him or her, the law gives the radio station the right
2417 to take something for nothing.
2418 </p><a class="indexterm" name="idp7704848"></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>
2419 Cable TV was also born of a kind of piracy.
2420 </p><p>
2421 When cable entrepreneurs first started wiring communities with cable
2422 television in 1948, most refused to pay broadcasters for the content
2423 that they echoed to their customers. Even when the cable companies
2424 started selling access to television broadcasts, they refused to pay
2425
2426 for what they sold. Cable companies were thus Napsterizing
2427 broadcasters' content, but more egregiously than anything Napster ever
2428 did&#8212; Napster never charged for the content it enabled others to
2429 give away.
2430 </p><a class="indexterm" name="idp7709248"></a><a class="indexterm" name="idp7710368"></a><a class="indexterm" name="idp7711120"></a><p>
2431 Broadcasters and copyright owners were quick to attack this theft.
2432 Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
2433 <span class="quote">«<span class="quote">unfair and potentially destructive competition.</span>»</span><a href="#ftn.idp7712528" class="footnote" name="idp7712528"><sup class="footnote">[63]</sup></a>
2434 There may have been a <span class="quote">«<span class="quote">public interest</span>»</span> in spreading the reach of cable
2435 TV, but as Douglas Anello, general counsel to the National Association
2436 of Broadcasters, asked Senator Quentin Burdick during testimony, <span class="quote">«<span class="quote">Does public
2437 interest dictate that you use somebody else's property?</span>»</span><a href="#ftn.idp7715248" class="footnote" name="idp7715248"><sup class="footnote">[64]</sup></a>
2438 As another broadcaster put it,
2439 </p><div class="blockquote"><blockquote class="blockquote"><p>
2440 The extraordinary thing about the CATV business is that it is the
2441 only business I know of where the product that is being sold is not
2442 paid for.<a href="#ftn.idp7716960" class="footnote" name="idp7716960"><sup class="footnote">[65]</sup></a>
2443 </p></blockquote></div><p>
2444 Again, the demand of the copyright holders seemed reasonable enough:
2445 </p><div class="blockquote"><blockquote class="blockquote"><p>
2446 All we are asking for is a very simple thing, that people who now
2447 take our property for nothing pay for it. We are trying to stop
2448 piracy and I don't think there is any lesser word to describe it. I
2449 think there are harsher words which would fit it.<a href="#ftn.idp7719392" class="footnote" name="idp7719392"><sup class="footnote">[66]</sup></a>
2450 </p></blockquote></div><a class="indexterm" name="idp7720608"></a><p>
2451 These were <span class="quote">«<span class="quote">free-ride[rs],</span>»</span> Screen Actor's Guild president Charlton
2452 Heston said, who were <span class="quote">«<span class="quote">depriving actors of
2453 compensation.</span>»</span><a href="#ftn.idp7722336" class="footnote" name="idp7722336"><sup class="footnote">[67]</sup></a>
2454 </p><p>
2455 But again, there was another side to the debate. As Assistant Attorney
2456 General Edwin Zimmerman put it,
2457 </p><div class="blockquote"><blockquote class="blockquote"><p>
2458 Our point here is that unlike the problem of whether you have any
2459 copyright protection at all, the problem here is whether copyright
2460 holders who are already compensated, who already have a monopoly,
2461 should be permitted to extend that monopoly. &#8230; The
2462
2463
2464 question here is how much compensation they should have and
2465 how far back they should carry their right to compensation.<a href="#ftn.idp7725392" class="footnote" name="idp7725392"><sup class="footnote">[68]</sup></a>
2466 <a class="indexterm" name="idp7727584"></a>
2467 </p></blockquote></div><p>
2468 Copyright owners took the cable companies to court. Twice the Supreme
2469 Court held that the cable companies owed the copyright owners nothing.
2470 </p><p>
2471 It took Congress almost thirty years before it resolved the question
2472 of whether cable companies had to pay for the content they <span class="quote">«<span class="quote">pirated.</span>»</span>
2473 In the end, Congress resolved this question in the same way that it
2474 resolved the question about record players and player pianos. Yes,
2475 cable companies would have to pay for the content that they broadcast;
2476 but the price they would have to pay was not set by the copyright
2477 owner.  The price was set by law, so that the broadcasters couldn't
2478 exercise veto power over the emerging technologies of cable. Cable
2479 companies thus built their empire in part upon a <span class="quote">«<span class="quote">piracy</span>»</span> of the value
2480 created by broadcasters' content.
2481 </p><a class="indexterm" name="idp7730912"></a><a class="indexterm" name="idp7731888"></a><p>
2482 <span class="strong"><strong>These separate stories</strong></span> sing a
2483 common theme. If <span class="quote">«<span class="quote">piracy</span>»</span> means using value from someone
2484 else's creative property without permission from that creator&#8212;as
2485 it is increasingly described today<a href="#ftn.idp7726576" class="footnote" name="idp7726576"><sup class="footnote">[69]</sup></a>
2486 &#8212; then <span class="emphasis"><em>every</em></span> industry affected by copyright
2487 today is the product and beneficiary of a certain kind of
2488 piracy. Film, records, radio, cable TV. &#8230; The list is long and
2489 could well be expanded. Every generation welcomes the pirates from the
2490 last. Every generation&#8212;until now.
2491 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7608016" class="footnote"><p><a href="#idp7608016" class="para"><sup class="para">[51] </sup></a>
2492
2493 <a class="indexterm" name="idp7608656"></a>
2494 I am grateful to Peter DiMauro for pointing me to this extraordinary
2495 history. See also Siva Vaidhyanathan, <em class="citetitle">Copyrights and Copywrongs</em>, 87&#8211;93,
2496 which details Edison's <span class="quote">«<span class="quote">adventures</span>»</span> with copyright and patent.
2497 </p></div><div id="ftn.idp7616352" class="footnote"><p><a href="#idp7616352" class="para"><sup class="para">[52] </sup></a>
2498
2499 J. A. Aberdeen, <em class="citetitle">Hollywood Renegades: The Society of Independent Motion
2500 Picture Producers</em> (Cobblestone Entertainment, 2000) and expanded texts
2501 posted at <span class="quote">«<span class="quote">The Edison Movie Monopoly: The Motion Picture Patents
2502 Company vs. the Independent Outlaws,</span>»</span> available at
2503 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #11</a>. For a
2504 discussion of the economic motive behind both these limits and the
2505 limits imposed by Victor on phonographs, see Randal C. Picker, <span class="quote">«<span class="quote">From
2506 Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and
2507 the Propertization of Copyright</span>»</span> (September 2002), University of
2508 Chicago Law School, James M. Olin Program in Law and Economics,
2509 Working Paper No. 159.
2510 <a class="indexterm" name="idp7619392"></a>
2511 </p></div><div id="ftn.idp7621808" class="footnote"><p><a href="#idp7621808" class="para"><sup class="para">[53] </sup></a>
2512
2513 Marc Wanamaker, <span class="quote">«<span class="quote">The First Studios,</span>»</span> <em class="citetitle">The Silents Majority</em>, archived at
2514 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #12</a>.
2515 </p></div><div id="ftn.idp7638384" class="footnote"><p><a href="#idp7638384" class="para"><sup class="para">[54] </sup></a>
2516
2517 To Amend and Consolidate the Acts Respecting Copyright: Hearings on
2518 S. 6330 and H.R. 19853 Before the (Joint) Committees on Patents, 59th
2519 Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge,
2520 of South Dakota, chairman), reprinted in <em class="citetitle">Legislative History of the
2521 Copyright Act</em>, E. Fulton Brylawski and Abe Goldman, eds. (South
2522 Hackensack, N.J.: Rothman Reprints, 1976).
2523 <a class="indexterm" name="idp7639792"></a>
2524 </p></div><div id="ftn.idp7642384" class="footnote"><p><a href="#idp7642384" class="para"><sup class="para">[55] </sup></a>
2525
2526 To Amend and Consolidate the Acts Respecting Copyright, 223
2527 (statement of Nathan Burkan, attorney for the Music Publishers Association).
2528 </p></div><div id="ftn.idp7643952" class="footnote"><p><a href="#idp7643952" class="para"><sup class="para">[56] </sup></a>
2529
2530 To Amend and Consolidate the Acts Respecting Copyright, 226
2531 (statement of Nathan Burkan, attorney for the Music Publishers Association).
2532 </p></div><div id="ftn.idp7645296" class="footnote"><p><a href="#idp7645296" class="para"><sup class="para">[57] </sup></a>
2533
2534 To Amend and Consolidate the Acts Respecting Copyright, 23
2535 (statement of John Philip Sousa, composer).
2536 </p></div><div id="ftn.idp7655600" class="footnote"><p><a href="#idp7655600" class="para"><sup class="para">[58] </sup></a>
2537
2538
2539 To Amend and Consolidate the Acts Respecting Copyright, 283&#8211;84
2540 (statement of Albert Walker, representative of the Auto-Music
2541 Perforating Company of New York).
2542 </p></div><div id="ftn.idp7657984" class="footnote"><p><a href="#idp7657984" class="para"><sup class="para">[59] </sup></a>
2543
2544 To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared
2545 memorandum of Philip Mauro, general patent counsel of the American
2546 Graphophone Company Association).
2547 </p></div><div id="ftn.idp7611184" class="footnote"><p><a href="#idp7611184" class="para"><sup class="para">[60] </sup></a>
2548
2549
2550 Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and
2551 H.R. 11794 Before the (Joint) Committee on Patents, 60th Cong., 1st
2552 sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted
2553 in <em class="citetitle">Legislative History of the 1909 Copyright Act</em>, E. Fulton Brylawski and
2554 Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976).
2555 </p></div><div id="ftn.idp7678528" class="footnote"><p><a href="#idp7678528" class="para"><sup class="para">[61] </sup></a>
2556
2557 Copyright Law Revision: Report to Accompany H.R. 2512, House Committee
2558 on the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8
2559 March 1967). I am grateful to Glenn Brown for drawing my attention to
2560 this report.</p></div><div id="ftn.idp7689312" class="footnote"><p><a href="#idp7689312" class="para"><sup class="para">[62] </sup></a>
2561
2562 See 17 <em class="citetitle">United States Code</em>, sections 106 and 110. At the beginning,
2563 record companies printed <span class="quote">«<span class="quote">Not Licensed for Radio Broadcast</span>»</span> and other
2564 messages purporting to restrict the ability to play a record on a
2565 radio station.  Judge Learned Hand rejected the argument that a
2566 warning attached to a record might restrict the rights of the radio
2567 station. See <em class="citetitle">RCA Manufacturing Co</em>. v. <em class="citetitle">Whiteman</em>, 114 F. 2d 86 (2nd
2568 Cir. 1940). See also Randal C.  Picker, <span class="quote">«<span class="quote">From Edison to the Broadcast
2569 Flag: Mechanisms of Consent and Refusal and the Propertization of
2570 Copyright,</span>»</span> <em class="citetitle">University of Chicago Law Review</em> 70 (2003): 281.
2571 <a class="indexterm" name="idp7692784"></a>
2572 <a class="indexterm" name="idp7693536"></a>
2573 </p></div><div id="ftn.idp7712528" class="footnote"><p><a href="#idp7712528" class="para"><sup class="para">[63] </sup></a>
2574
2575 Copyright Law Revision&#8212;CATV: Hearing on S. 1006 Before the
2576 Subcommittee on Patents, Trademarks, and Copyrights of the Senate
2577 Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966)
2578 (statement of Rosel H. Hyde, chairman of the Federal Communications
2579 Commission).
2580 <a class="indexterm" name="idp7709392"></a>
2581 </p></div><div id="ftn.idp7715248" class="footnote"><p><a href="#idp7715248" class="para"><sup class="para">[64] </sup></a>
2582
2583 Copyright Law Revision&#8212;CATV, 116 (statement of Douglas A. Anello,
2584 general counsel of the National Association of Broadcasters).
2585 </p></div><div id="ftn.idp7716960" class="footnote"><p><a href="#idp7716960" class="para"><sup class="para">[65] </sup></a>
2586
2587 Copyright Law Revision&#8212;CATV, 126 (statement of Ernest W. Jennes,
2588 general counsel of the Association of Maximum Service Telecasters, Inc.).
2589 </p></div><div id="ftn.idp7719392" class="footnote"><p><a href="#idp7719392" class="para"><sup class="para">[66] </sup></a>
2590
2591 Copyright Law Revision&#8212;CATV, 169 (joint statement of Arthur B.
2592 Krim, president of United Artists Corp., and John Sinn, president of
2593 United Artists Television, Inc.).
2594 </p></div><div id="ftn.idp7722336" class="footnote"><p><a href="#idp7722336" class="para"><sup class="para">[67] </sup></a>
2595
2596 Copyright Law Revision&#8212;CATV, 209 (statement of Charlton Heston,
2597 president of the Screen Actors Guild).
2598 <a class="indexterm" name="idp7723104"></a>
2599 </p></div><div id="ftn.idp7725392" class="footnote"><p><a href="#idp7725392" class="para"><sup class="para">[68] </sup></a>
2600
2601 Copyright Law Revision&#8212;CATV, 216 (statement of Edwin M.
2602 Zimmerman, acting assistant attorney general).
2603 <a class="indexterm" name="idp7726704"></a>
2604 </p></div><div id="ftn.idp7726576" class="footnote"><p><a href="#idp7726576" class="para"><sup class="para">[69] </sup></a>
2605
2606 See, for example, National Music Publisher's Association, <em class="citetitle">The Engine
2607 of Free Expression: Copyright on the Internet&#8212;The Myth of Free
2608 Information</em>, available at
2609 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #13</a>. <span class="quote">«<span class="quote">The
2610 threat of piracy&#8212;the use of someone else's creative work without
2611 permission or compensation&#8212;has grown with the Internet.</span>»</span>
2612 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="piracy"></a>Chapter 5. <span class="quote">«<span class="quote">Piracy</span>»</span></h2></div></div></div><p>
2613 <span class="strong"><strong>There is piracy</strong></span> of copyrighted
2614 material. Lots of it. This piracy comes in many forms. The most
2615 significant is commercial piracy, the unauthorized taking of other
2616 people's content within a commercial context. Despite the many
2617 justifications that are offered in its defense, this taking is
2618 wrong. No one should condone it, and the law should stop it.
2619 </p><p>
2620 But as well as copy-shop piracy, there is another kind of <span class="quote">«<span class="quote">taking</span>»</span>
2621 that is more directly related to the Internet. That taking, too, seems
2622 wrong to many, and it is wrong much of the time. Before we paint this
2623 taking <span class="quote">«<span class="quote">piracy,</span>»</span> however, we should understand its nature a bit more.
2624 For the harm of this taking is significantly more ambiguous than
2625 outright copying, and the law should account for that ambiguity, as it
2626 has so often done in the past.
2627
2628 </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="idp7743440"></a><a class="indexterm" name="idxcdsforeign"></a><p>
2629 All across the world, but especially in Asia and Eastern Europe, there
2630 are businesses that do nothing but take others people's copyrighted
2631 content, copy it, and sell it&#8212;all without the permission of a copyright
2632 owner. The recording industry estimates that it loses about $4.6 billion
2633 every year to physical piracy<a href="#ftn.idp7725520" class="footnote" name="idp7725520"><sup class="footnote">[70]</sup></a>
2634 (that works out to one in three CDs sold worldwide). The MPAA
2635 estimates that it loses $3 billion annually worldwide to piracy.
2636 </p><p>
2637 This is piracy plain and simple. Nothing in the argument of this
2638 book, nor in the argument that most people make when talking about
2639 the subject of this book, should draw into doubt this simple point:
2640 This piracy is wrong.
2641 </p><p>
2642 Which is not to say that excuses and justifications couldn't be made
2643 for it. We could, for example, remind ourselves that for the first one
2644 hundred years of the American Republic, America did not honor foreign
2645 copyrights. We were born, in this sense, a pirate nation. It might
2646 therefore seem hypocritical for us to insist so strongly that other
2647 developing nations treat as wrong what we, for the first hundred years
2648 of our existence, treated as right.
2649 </p><p>
2650 That excuse isn't terribly strong. Technically, our law did not ban
2651 the taking of foreign works. It explicitly limited itself to American
2652 works. Thus the American publishers who published foreign works
2653 without the permission of foreign authors were not violating any rule.
2654 The copy shops in Asia, by contrast, are violating Asian law. Asian
2655 law does protect foreign copyrights, and the actions of the copy shops
2656 violate that law. So the wrong of piracy that they engage in is not
2657 just a moral wrong, but a legal wrong, and not just an internationally
2658 legal wrong, but a locally legal wrong as well.
2659 </p><p>
2660 True, these local rules have, in effect, been imposed upon these
2661 countries. No country can be part of the world economy and choose
2662
2663 not to protect copyright internationally. We may have been born a
2664 pirate nation, but we will not allow any other nation to have a
2665 similar childhood.
2666 </p><p>
2667 If a country is to be treated as a sovereign, however, then its laws are
2668 its laws regardless of their source. The international law under which
2669 these nations live gives them some opportunities to escape the burden
2670 of intellectual property law.<a href="#ftn.idp7753168" class="footnote" name="idp7753168"><sup class="footnote">[71]</sup></a> In my view, more developing nations should take
2671 advantage of that opportunity, but when they don't, then their laws
2672 should be respected. And under the laws of these nations, this piracy
2673 is wrong.
2674 </p><a class="indexterm" name="idp7757088"></a><p>
2675 Alternatively, we could try to excuse this piracy by noting that in
2676 any case, it does no harm to the industry. The Chinese who get access
2677 to American CDs at 50 cents a copy are not people who would have
2678 bought those American CDs at $15 a copy. So no one really has any
2679 less money than they otherwise would have had.<a href="#ftn.idp7758432" class="footnote" name="idp7758432"><sup class="footnote">[72]</sup></a>
2680 </p><p>
2681 This is often true (though I have friends who have purchased many
2682 thousands of pirated DVDs who certainly have enough money to pay
2683 for the content they have taken), and it does mitigate to some degree
2684 the harm caused by such taking. Extremists in this debate love to say,
2685 <span class="quote">«<span class="quote">You wouldn't go into Barnes &amp; Noble and take a book off of the shelf
2686 without paying; why should it be any different with on-line music?</span>»</span>
2687 The difference is, of course, that when you take a book from Barnes &amp;
2688 Noble, it has one less book to sell. By contrast, when you take an MP3
2689 from a computer network, there is not one less CD that can be sold.
2690 The physics of piracy of the intangible are different from the physics of
2691 piracy of the tangible.
2692 </p><a class="indexterm" name="idp7763424"></a><p>
2693 This argument is still very weak. However, although copyright is a
2694 property right of a very special sort, it <span class="emphasis"><em>is</em></span> a
2695 property right. Like all property rights, the copyright gives the
2696 owner the right to decide the terms under which content is shared. If
2697 the copyright owner doesn't want to sell, she doesn't have to. There
2698 are exceptions: important statutory licenses that apply to copyrighted
2699 content regardless of the wish of the copyright owner. Those licenses
2700 give people the right to <span class="quote">«<span class="quote">take</span>»</span> copyrighted content whether or not the
2701 copyright owner wants to sell. But
2702
2703
2704 where the law does not give people the right to take content, it is
2705 wrong to take that content even if the wrong does no harm. If we have
2706 a property system, and that system is properly balanced to the
2707 technology of a time, then it is wrong to take property without the
2708 permission of a property owner. That is exactly what <span class="quote">«<span class="quote">property</span>»</span> means.
2709 </p><a class="indexterm" name="idp7767136"></a><a class="indexterm" name="idp7767888"></a><a class="indexterm" name="idp7768896"></a><a class="indexterm" name="idp7769648"></a><a class="indexterm" name="idp7770400"></a><a class="indexterm" name="idp7771152"></a><a class="indexterm" name="idp7772160"></a><a class="indexterm" name="idp7772912"></a><a class="indexterm" name="idp7773920"></a><p>
2710 Finally, we could try to excuse this piracy with the argument that the
2711 piracy actually helps the copyright owner. When the Chinese <span class="quote">«<span class="quote">steal</span>»</span>
2712 Windows, that makes the Chinese dependent on Microsoft.  Microsoft
2713 loses the value of the software that was taken. But it gains users who
2714 are used to life in the Microsoft world. Over time, as the nation
2715 grows more wealthy, more and more people will buy software rather than
2716 steal it. And hence over time, because that buying will benefit
2717 Microsoft, Microsoft benefits from the piracy. If instead of pirating
2718 Microsoft Windows, the Chinese used the free GNU/Linux operating
2719 system, then these Chinese users would not eventually be buying
2720 Microsoft.  Without piracy, then, Microsoft would lose.
2721 </p><a class="indexterm" name="idp7776448"></a><p>
2722 This argument, too, is somewhat true. The addiction strategy is a good
2723 one. Many businesses practice it. Some thrive because of it. Law
2724 students, for example, are given free access to the two largest legal
2725 databases. The companies marketing both hope the students will become
2726 so used to their service that they will want to use it and not the
2727 other when they become lawyers (and must pay high subscription fees).
2728 </p><a class="indexterm" name="idp7778272"></a><a class="indexterm" name="idp7779024"></a><a class="indexterm" name="idp7779776"></a><a class="indexterm" name="idp7780528"></a><p>
2729 Still, the argument is not terribly persuasive. We don't give the
2730 alcoholic a defense when he steals his first beer, merely because that
2731 will make it more likely that he will buy the next three. Instead, we
2732 ordinarily allow businesses to decide for themselves when it is best
2733 to give their product away. If Microsoft fears the competition of
2734 GNU/Linux, then Microsoft can give its product away, as it did, for
2735 example, with Internet Explorer to fight Netscape. A property right
2736 means giving the property owner the right to say who gets access to
2737 what&#8212;at least ordinarily. And if the law properly balances the
2738 rights of the copyright owner with the rights of access, then
2739 violating the law is still wrong.
2740 </p><p>
2741
2742 Thus, while I understand the pull of these justifications for piracy,
2743 and I certainly see the motivation, in my view, in the end, these efforts
2744 at justifying commercial piracy simply don't cut it. This kind of piracy
2745 is rampant and just plain wrong. It doesn't transform the content it
2746 steals; it doesn't transform the market it competes in. It merely gives
2747 someone access to something that the law says he should not have.
2748 Nothing has changed to draw that law into doubt. This form of piracy
2749 is flat out wrong.
2750 </p><p>
2751 But as the examples from the four chapters that introduced this part
2752 suggest, even if some piracy is plainly wrong, not all <span class="quote">«<span class="quote">piracy</span>»</span> is. Or
2753 at least, not all <span class="quote">«<span class="quote">piracy</span>»</span> is wrong if that term is understood in the
2754 way it is increasingly used today. Many kinds of <span class="quote">«<span class="quote">piracy</span>»</span> are useful
2755 and productive, to produce either new content or new ways of doing
2756 business.  Neither our tradition nor any tradition has ever banned all
2757 <span class="quote">«<span class="quote">piracy</span>»</span> in that sense of the term.
2758 </p><p>
2759 This doesn't mean that there are no questions raised by the latest
2760 piracy concern, peer-to-peer file sharing. But it does mean that we
2761 need to understand the harm in peer-to-peer sharing a bit more before
2762 we condemn it to the gallows with the charge of piracy.
2763 </p><p>
2764 For (1) like the original Hollywood, p2p sharing escapes an overly
2765 controlling industry; and (2) like the original recording industry, it
2766 simply exploits a new way to distribute content; but (3) unlike cable
2767 TV, no one is selling the content that is shared on p2p services.
2768 </p><p>
2769 These differences distinguish p2p sharing from true piracy. They
2770 should push us to find a way to protect artists while enabling this
2771 sharing to survive.
2772 </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>
2773 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]
2774 the author of [his] profit.</span>»</span><a href="#ftn.idp7789744" class="footnote" name="idp7789744"><sup class="footnote">[73]</sup></a>
2775 This means we must determine whether
2776 and how much p2p sharing harms before we know how strongly the
2777
2778 law should seek to either prevent it or find an alternative to assure the
2779 author of his profit.
2780 </p><p>
2781 <a class="indexterm" name="idp7792144"></a>
2782 <a class="indexterm" name="idp7792896"></a>
2783 <a class="indexterm" name="idxnapster"></a>
2784 Peer-to-peer sharing was made famous by Napster. But the inventors of
2785 the Napster technology had not made any major technological
2786 innovations.  Like every great advance in innovation on the Internet
2787 (and, arguably, off the Internet as well<a href="#ftn.idp7795136" class="footnote" name="idp7795136"><sup class="footnote">[74]</sup></a>), Shawn Fanning and crew had simply
2788 put together components that had been developed independently.
2789 </p><p>
2790 <a class="indexterm" name="idp7799200"></a>
2791 <a class="indexterm" name="idp7799952"></a>
2792 <a class="indexterm" name="idp7800960"></a>
2793 The result was spontaneous combustion. Launched in July 1999,
2794 Napster amassed over 10 million users within nine months. After
2795 eighteen months, there were close to 80 million registered users of the
2796 system.<a href="#ftn.idp7802192" class="footnote" name="idp7802192"><sup class="footnote">[75]</sup></a>
2797 Courts quickly shut Napster down, but other services emerged
2798 to take its place. (Kazaa is currently the most popular p2p service. It
2799 boasts over 100 million members.) These services' systems are different
2800 architecturally, though not very different in function: Each enables
2801 users to make content available to any number of other users. With a
2802 p2p system, you can share your favorite songs with your best friend&#8212;
2803 or your 20,000 best friends.
2804 </p><a class="indexterm" name="idp7806800"></a><p>
2805 According to a number of estimates, a huge proportion of Americans
2806 have tasted file-sharing technology. A study by Ipsos-Insight in
2807 September 2002 estimated that 60 million Americans had downloaded
2808 music&#8212;28 percent of Americans older than 12.<a href="#ftn.idp7807232" class="footnote" name="idp7807232"><sup class="footnote">[76]</sup></a>
2809 A survey by the NPD group quoted in <em class="citetitle">The New York Times</em>
2810 estimated that 43 million citizens used file-sharing networks to
2811 exchange content in May 2003.<a href="#ftn.idp7810912" class="footnote" name="idp7810912"><sup class="footnote">[77]</sup></a>
2812 The vast majority of these are not kids. Whatever the actual figure, a
2813 massive quantity of content is being <span class="quote">«<span class="quote">taken</span>»</span> on these networks. The
2814 ease and inexpensiveness of file-sharing networks have inspired
2815 millions to enjoy music in a way that they hadn't before.
2816 </p><p>
2817 Some of this enjoying involves copyright infringement. Some of it does
2818 not. And even among the part that is technically copyright
2819 infringement, calculating the actual harm to copyright owners is more
2820 complicated than one might think. So consider&#8212;a bit more
2821 carefully than the polarized voices around this debate usually
2822 do&#8212;the kinds of sharing that file sharing enables, and the kinds
2823 of harm it entails.
2824 </p><p>
2825
2826 File sharers share different kinds of content. We can divide these
2827 different kinds into four types.
2828 </p><div class="orderedlist"><ol class="orderedlist" type="A"><li class="listitem"><a class="indexterm" name="idp7816048"></a><p>
2829
2830 There are some who use sharing networks as substitutes for purchasing
2831 content. Thus, when a new Madonna CD is released, rather than buying
2832 the CD, these users simply take it. We might quibble about whether
2833 everyone who takes it would actually have bought it if sharing didn't
2834 make it available for free. Most probably wouldn't have, but clearly
2835 there are some who would.  The latter are the target of category A:
2836 users who download instead of purchasing.
2837 </p></li><li class="listitem"><p>
2838
2839 There are some who use sharing networks to sample music before
2840 purchasing it. Thus, a friend sends another friend an MP3 of an artist
2841 he's not heard of. The other friend then buys CDs by that artist. This
2842 is a kind of targeted advertising, quite likely to succeed.  If the
2843 friend recommending the album gains nothing from a bad recommendation,
2844 then one could expect that the recommendations will actually be quite
2845 good. The net effect of this sharing could increase the quantity of
2846 music purchased.
2847 </p></li><li class="listitem"><p>
2848
2849 There are many who use sharing networks to get access to copyrighted
2850 content that is no longer sold or that they would not have purchased
2851 because the transaction costs off the Net are too high. This use of
2852 sharing networks is among the most rewarding for many. Songs that were
2853 part of your childhood but have long vanished from the marketplace
2854 magically appear again on the network. (One friend told me that when
2855 she discovered Napster, she spent a solid weekend <span class="quote">«<span class="quote">recalling</span>»</span> old
2856 songs. She was astonished at the range and mix of content that was
2857 available.)  For content not sold, this is still technically a
2858 violation of copyright, though because the copyright owner is not
2859 selling the content anymore, the economic harm is zero&#8212;the same
2860 harm that occurs when I sell my collection of 1960s 45-rpm records to
2861 a local collector.
2862 </p></li><li class="listitem"><p>
2863
2864
2865 Finally, there are many who use sharing networks to get access
2866 to content that is not copyrighted or that the copyright owner
2867 wants to give away.
2868 </p></li></ol></div><p>
2869 How do these different types of sharing balance out?
2870 </p><p>
2871 Let's start with some simple but important points. From the
2872 perspective of the law, only type D sharing is clearly legal. From the
2873 perspective of economics, only type A sharing is clearly
2874 harmful.<a href="#ftn.idp7823376" class="footnote" name="idp7823376"><sup class="footnote">[78]</sup></a>
2875 Type B sharing is illegal but plainly beneficial. Type C sharing is
2876 illegal, yet good for society (since more exposure to music is good)
2877 and harmless to the artist (since the work is not otherwise
2878 available). So how sharing matters on balance is a hard question to
2879 answer&#8212;and certainly much more difficult than the current
2880 rhetoric around the issue suggests.
2881 </p><p>
2882 Whether on balance sharing is harmful depends importantly on how
2883 harmful type A sharing is. Just as Edison complained about Hollywood,
2884 composers complained about piano rolls, recording artists complained
2885 about radio, and broadcasters complained about cable TV, the music
2886 industry complains that type A sharing is a kind of <span class="quote">«<span class="quote">theft</span>»</span> that is
2887 <span class="quote">«<span class="quote">devastating</span>»</span> the industry.
2888 </p><a class="indexterm" name="idxcassette"></a><p>
2889 While the numbers do suggest that sharing is harmful, how
2890 harmful is harder to reckon. It has long been the recording industry's
2891 practice to blame technology for any drop in sales. The history of
2892 cassette recording is a good example. As a study by Cap Gemini Ernst
2893 &amp; Young put it, <span class="quote">«<span class="quote">Rather than exploiting this new, popular
2894 technology, the labels fought it.</span>»</span><a href="#ftn.idp7829856" class="footnote" name="idp7829856"><sup class="footnote">[79]</sup></a>
2895 The labels claimed that every album taped was an album unsold, and
2896 when record sales fell by 11.4 percent in 1981, the industry claimed
2897 that its point was proved. Technology was the problem, and banning or
2898 regulating technology was the answer.
2899 </p><a class="indexterm" name="idp7833776"></a><p>
2900 Yet soon thereafter, and before Congress was given an opportunity
2901 to enact regulation, MTV was launched, and the industry had a record
2902 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
2903 not the fault of the tapers&#8212;who did not [stop after MTV came into
2904
2905 being]&#8212;but had to a large extent resulted from stagnation in musical
2906 innovation at the major labels.</span>»</span><a href="#ftn.idp7759808" class="footnote" name="idp7759808"><sup class="footnote">[80]</sup></a>
2907 </p><a class="indexterm" name="idp7837344"></a><p>
2908 But just because the industry was wrong before does not mean it is
2909 wrong today. To evaluate the real threat that p2p sharing presents to
2910 the industry in particular, and society in general&#8212;or at least
2911 the society that inherits the tradition that gave us the film
2912 industry, the record industry, the radio industry, cable TV, and the
2913 VCR&#8212;the question is not simply whether type A sharing is
2914 harmful. The question is also <span class="emphasis"><em>how</em></span> harmful type A
2915 sharing is, and how beneficial the other types of sharing are.
2916 </p><p>
2917 We start to answer this question by focusing on the net harm, from the
2918 standpoint of the industry as a whole, that sharing networks cause.
2919 The <span class="quote">«<span class="quote">net harm</span>»</span> to the industry as a whole is the amount by which type
2920 A sharing exceeds type B. If the record companies sold more records
2921 through sampling than they lost through substitution, then sharing
2922 networks would actually benefit music companies on balance. They would
2923 therefore have little <span class="emphasis"><em>static</em></span> reason to resist
2924 them.
2925
2926 </p><a class="indexterm" name="idxcdssales"></a><p>
2927 Could that be true? Could the industry as a whole be gaining because
2928 of file sharing? Odd as that might sound, the data about CD sales
2929 actually suggest it might be close.
2930 </p><p>
2931 In 2002, the RIAA reported that CD sales had fallen by 8.9 percent,
2932 from 882 million to 803 million units; revenues fell 6.7
2933 percent.<a href="#ftn.idp7843680" class="footnote" name="idp7843680"><sup class="footnote">[81]</sup></a>
2934 This confirms a trend over the past few years. The RIAA blames
2935 Internet piracy for the trend, though there are many other causes that
2936 could account for this drop. SoundScan, for example, reports a more
2937 than 20 percent drop in the number of CDs released since 1999. That no
2938 doubt accounts for some of the decrease in sales. Rising prices could
2939 account for at least some of the loss. <span class="quote">«<span class="quote">From 1999 to 2001, the average
2940 price of a CD rose 7.2 percent, from $13.04 to $14.19.</span>»</span><a href="#ftn.idp7848208" class="footnote" name="idp7848208"><sup class="footnote">[82]</sup></a>
2941 Competition from other forms of media could also account for some of
2942 the decline. As Jane Black of <em class="citetitle">BusinessWeek</em> notes, <span class="quote">«<span class="quote">The
2943 soundtrack to the film <em class="citetitle">High Fidelity</em> has a list price of
2944 $18.98. You could get the whole movie [on DVD] for
2945 $19.99.</span>»</span><a href="#ftn.idp7852224" class="footnote" name="idp7852224"><sup class="footnote">[83]</sup></a>
2946 </p><p>
2947
2948
2949 But let's assume the RIAA is right, and all of the decline in CD sales
2950 is because of Internet sharing. Here's the rub: In the same period
2951 that the RIAA estimates that 803 million CDs were sold, the RIAA
2952 estimates that 2.1 billion CDs were downloaded for free. Thus,
2953 although 2.6 times the total number of CDs sold were downloaded for
2954 free, sales revenue fell by just 6.7 percent.
2955 </p><p>
2956 There are too many different things happening at the same time to
2957 explain these numbers definitively, but one conclusion is unavoidable:
2958 The recording industry constantly asks, <span class="quote">«<span class="quote">What's the difference between
2959 downloading a song and stealing a CD?</span>»</span>&#8212;but their own numbers
2960 reveal the difference. If I steal a CD, then there is one less CD to
2961 sell. Every taking is a lost sale. But on the basis of the numbers the
2962 RIAA provides, it is absolutely clear that the same is not true of
2963 downloads. If every download were a lost sale&#8212;if every use of
2964 Kazaa <span class="quote">«<span class="quote">rob[bed] the author of [his] profit</span>»</span>&#8212;then the industry
2965 would have suffered a 100 percent drop in sales last year, not a 7
2966 percent drop. If 2.6 times the number of CDs sold were downloaded for
2967 free, and yet sales revenue dropped by just 6.7 percent, then there is
2968 a huge difference between <span class="quote">«<span class="quote">downloading a song and stealing a CD.</span>»</span>
2969 </p><a class="indexterm" name="idp7856640"></a><p>
2970 These are the harms&#8212;alleged and perhaps exaggerated but, let's
2971 assume, real. What of the benefits? File sharing may impose costs on
2972 the recording industry. What value does it produce in addition to
2973 these costs?
2974 </p><p>
2975 One benefit is type C sharing&#8212;making available content that
2976 is technically still under copyright but is no longer commercially
2977 available.  This is not a small category of content. There are
2978 millions of tracks that are no longer commercially
2979 available.<a href="#ftn.idp7857760" class="footnote" name="idp7857760"><sup class="footnote">[84]</sup></a>
2980 And while it's conceivable that some of this content is not available
2981 because the artist producing the content doesn't want it to be made
2982 available, the vast majority of it is unavailable solely because the
2983 publisher or the distributor has decided it no longer makes economic
2984 sense <span class="emphasis"><em>to the company</em></span> to make it available.
2985 </p><a class="indexterm" name="idp7861248"></a><p>
2986 In real space&#8212;long before the Internet&#8212;the market had a simple
2987
2988 response to this problem: used book and record stores. There are
2989 thousands of used book and used record stores in America
2990 today.<a href="#ftn.idp7862992" class="footnote" name="idp7862992"><sup class="footnote">[85]</sup></a>
2991 These stores buy content from owners, then sell the content they
2992 buy. And under American copyright law, when they buy and sell this
2993 content, <span class="emphasis"><em>even if the content is still under
2994 copyright</em></span>, the copyright owner doesn't get a dime. Used
2995 book and record stores are commercial entities; their owners make
2996 money from the content they sell; but as with cable companies before
2997 statutory licensing, they don't have to pay the copyright owner for
2998 the content they sell.
2999 </p><a class="indexterm" name="idp7868176"></a><a class="indexterm" name="idp7869184"></a><a class="indexterm" name="idxinternetbookson"></a><p>
3000 Type C sharing, then, is very much like used book stores or used
3001 record stores. It is different, of course, because the person making
3002 the content available isn't making money from making the content
3003 available.  It is also different, of course, because in real space,
3004 when I sell a record, I don't have it anymore, while in cyberspace,
3005 when someone shares my 1949 recording of Bernstein's <span class="quote">«<span class="quote">Two Love Songs,</span>»</span>
3006 I still have it. That difference would matter economically if the
3007 owner of the copyright were selling the record in competition to my
3008 sharing. But we're talking about the class of content that is not
3009 currently commercially available. The Internet is making it available,
3010 through cooperative sharing, without competing with the market.
3011 </p><p>
3012 It may well be, all things considered, that it would be better if the
3013 copyright owner got something from this trade. But just because it may
3014 well be better, it doesn't follow that it would be good to ban used book
3015 stores. Or put differently, if you think that type C sharing should be
3016 stopped, do you think that libraries and used book stores should be
3017 shut as well?
3018 </p><a class="indexterm" name="idxbooksfreeonline1"></a><a class="indexterm" name="idp7875200"></a><a class="indexterm" name="idp7875952"></a><p>
3019 Finally, and perhaps most importantly, file-sharing networks enable
3020 type D sharing to occur&#8212;the sharing of content that copyright owners
3021 want to have shared or for which there is no continuing copyright. This
3022 sharing clearly benefits authors and society. Science fiction author
3023 Cory Doctorow, for example, released his first novel, <em class="citetitle">Down and Out in
3024 the Magic Kingdom</em>, both free on-line and in bookstores on the same
3025
3026
3027 day. His (and his publisher's) thinking was that the on-line distribution
3028 would be a great advertisement for the <span class="quote">«<span class="quote">real</span>»</span> book. People would read
3029 part on-line, and then decide whether they liked the book or not. If
3030 they liked it, they would be more likely to buy it. Doctorow's content is
3031 type D content. If sharing networks enable his work to be spread, then
3032 both he and society are better off. (Actually, much better off: It is a
3033 great book!)
3034 </p><a class="indexterm" name="idp7879040"></a><p>
3035 Likewise for work in the public domain: This sharing benefits society
3036 with no legal harm to authors at all. If efforts to solve the problem
3037 of type A sharing destroy the opportunity for type D sharing, then we
3038 lose something important in order to protect type A content.
3039 </p><p>
3040 The point throughout is this: While the recording industry
3041 understandably says, <span class="quote">«<span class="quote">This is how much we've lost,</span>»</span> we must also ask,
3042 <span class="quote">«<span class="quote">How much has society gained from p2p sharing? What are the
3043 efficiencies?  What is the content that otherwise would be
3044 unavailable?</span>»</span>
3045 </p><a class="indexterm" name="idp7881968"></a><p>
3046 For unlike the piracy I described in the first section of this
3047 chapter, much of the <span class="quote">«<span class="quote">piracy</span>»</span> that file sharing enables is plainly
3048 legal and good.  And like the piracy I described in chapter
3049 <a class="xref" href="#pirates" title="Chapter 4. «Pirates»">4</a>, much of
3050 this piracy is motivated by a new way of spreading content caused by
3051 changes in the technology of distribution. Thus, consistent with the
3052 tradition that gave us Hollywood, radio, the recording industry, and
3053 cable TV, the question we should be asking about file sharing is how
3054 best to preserve its benefits while minimizing (to the extent
3055 possible) the wrongful harm it causes artists. The question is one of
3056 balance. The law should seek that balance, and that balance will be
3057 found only with time.
3058 </p><p>
3059 <span class="quote">«<span class="quote">But isn't the war just a war against illegal sharing? Isn't the target
3060 just what you call type A sharing?</span>»</span>
3061 </p><p>
3062 You would think. And we should hope. But so far, it is not. The effect
3063 of the war purportedly on type A sharing alone has been felt far
3064 beyond that one class of sharing. That much is obvious from the
3065 Napster case itself. When Napster told the district court that it had
3066 developed a technology to block the transfer of 99.4 percent of
3067 identified
3068
3069
3070 infringing material, the district court told counsel for Napster 99.4
3071 percent was not good enough. Napster had to push the infringements
3072 <span class="quote">«<span class="quote">down to zero.</span>»</span><a href="#ftn.idp7887376" class="footnote" name="idp7887376"><sup class="footnote">[86]</sup></a>
3073 </p><p>
3074 If 99.4 percent is not good enough, then this is a war on file-sharing
3075 technologies, not a war on copyright infringement. There is no way to
3076 assure that a p2p system is used 100 percent of the time in compliance
3077 with the law, any more than there is a way to assure that 100 percent of
3078 VCRs or 100 percent of Xerox machines or 100 percent of handguns
3079 are used in compliance with the law. Zero tolerance means zero p2p.
3080 The court's ruling means that we as a society must lose the benefits of
3081 p2p, even for the totally legal and beneficial uses they serve, simply to
3082 assure that there are zero copyright infringements caused by p2p.
3083 </p><p>
3084 Zero tolerance has not been our history. It has not produced the
3085 content industry that we know today. The history of American law has
3086 been a process of balance. As new technologies changed the way content
3087 was distributed, the law adjusted, after some time, to the new
3088 technology.  In this adjustment, the law sought to ensure the
3089 legitimate rights of creators while protecting innovation. Sometimes
3090 this has meant more rights for creators. Sometimes less.
3091 </p><a class="indexterm" name="idp7891520"></a><a class="indexterm" name="idp7892528"></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="idp7899232"></a><a class="indexterm" name="idp7900240"></a><a class="indexterm" name="idp7901248"></a><a class="indexterm" name="idp7902256"></a><a class="indexterm" name="idp7903264"></a><a class="indexterm" name="idp7904016"></a><p>
3092 So, as we've seen, when <span class="quote">«<span class="quote">mechanical reproduction</span>»</span> threatened the
3093 interests of composers, Congress balanced the rights of composers
3094 against the interests of the recording industry. It granted rights to
3095 composers, but also to the recording artists: Composers were to be
3096 paid, but at a price set by Congress. But when radio started
3097 broadcasting the recordings made by these recording artists, and they
3098 complained to Congress that their <span class="quote">«<span class="quote">creative property</span>»</span> was not being
3099 respected (since the radio station did not have to pay them for the
3100 creativity it broadcast), Congress rejected their claim. An indirect
3101 benefit was enough.
3102 </p><a class="indexterm" name="idxcabletv2"></a><p>
3103 Cable TV followed the pattern of record albums. When the courts
3104 rejected the claim that cable broadcasters had to pay for the content
3105 they rebroadcast, Congress responded by giving broadcasters a right to
3106 compensation, but at a level set by the law. It likewise gave cable
3107 companies the right to the content, so long as they paid the statutory
3108 price.
3109 </p><a class="indexterm" name="idp7908496"></a><p>
3110
3111
3112 This compromise, like the compromise affecting records and player
3113 pianos, served two important goals&#8212;indeed, the two central goals
3114 of any copyright legislation. First, the law assured that new
3115 innovators would have the freedom to develop new ways to deliver
3116 content.  Second, the law assured that copyright holders would be paid
3117 for the content that was distributed. One fear was that if Congress
3118 simply required cable TV to pay copyright holders whatever they
3119 demanded for their content, then copyright holders associated with
3120 broadcasters would use their power to stifle this new technology,
3121 cable. But if Congress had permitted cable to use broadcasters'
3122 content for free, then it would have unfairly subsidized cable. Thus
3123 Congress chose a path that would assure
3124 <span class="emphasis"><em>compensation</em></span> without giving the past
3125 (broadcasters) control over the future (cable).
3126 </p><a class="indexterm" name="idp7911488"></a><a class="indexterm" name="idp7912352"></a><a class="indexterm" name="idp7913328"></a><a class="indexterm" name="idxbetamax"></a><a class="indexterm" name="idxcassettevcrs1"></a><p>
3127 In the same year that Congress struck this balance, two major
3128 producers and distributors of film content filed a lawsuit against
3129 another technology, the video tape recorder (VTR, or as we refer to
3130 them today, VCRs) that Sony had produced, the Betamax. Disney's and
3131 Universal's claim against Sony was relatively simple: Sony produced a
3132 device, Disney and Universal claimed, that enabled consumers to engage
3133 in copyright infringement. Because the device that Sony built had a
3134 <span class="quote">«<span class="quote">record</span>»</span> button, the device could be used to record copyrighted movies
3135 and shows. Sony was therefore benefiting from the copyright
3136 infringement of its customers. It should therefore, Disney and
3137 Universal claimed, be partially liable for that infringement.
3138 </p><a class="indexterm" name="idp7918560"></a><p>
3139 There was something to Disney's and Universal's claim. Sony did
3140 decide to design its machine to make it very simple to record television
3141 shows. It could have built the machine to block or inhibit any direct
3142 copying from a television broadcast. Or possibly, it could have built the
3143 machine to copy only if there were a special <span class="quote">«<span class="quote">copy me</span>»</span> signal on the
3144 line. It was clear that there were many television shows that did not
3145 grant anyone permission to copy. Indeed, if anyone had asked, no
3146 doubt the majority of shows would not have authorized copying. And
3147
3148 in the face of this obvious preference, Sony could have designed its
3149 system to minimize the opportunity for copyright infringement. It did
3150 not, and for that, Disney and Universal wanted to hold it responsible
3151 for the architecture it chose.
3152 </p><a class="indexterm" name="idxcongressusoncopyrightlaws3"></a><a class="indexterm" name="idp7922976"></a><p>
3153 MPAA president Jack Valenti became the studios' most vocal
3154 champion. Valenti called VCRs <span class="quote">«<span class="quote">tapeworms.</span>»</span> He warned, <span class="quote">«<span class="quote">When there are
3155 20, 30, 40 million of these VCRs in the land, we will be invaded by
3156 millions of `tapeworms,' eating away at the very heart and essence of
3157 the most precious asset the copyright owner has, his
3158 copyright.</span>»</span><a href="#ftn.idp7925232" class="footnote" name="idp7925232"><sup class="footnote">[87]</sup></a>
3159 <span class="quote">«<span class="quote">One does not have to be trained in sophisticated marketing and
3160 creative judgment,</span>»</span> he told Congress, <span class="quote">«<span class="quote">to understand the devastation
3161 on the after-theater marketplace caused by the hundreds of millions of
3162 tapings that will adversely impact on the future of the creative
3163 community in this country. It is simply a question of basic economics
3164 and plain common sense.</span>»</span><a href="#ftn.idp7927264" class="footnote" name="idp7927264"><sup class="footnote">[88]</sup></a>
3165 Indeed, as surveys would later show, 45
3166 percent of VCR owners had movie libraries of ten videos or more<a href="#ftn.idp7928240" class="footnote" name="idp7928240"><sup class="footnote">[89]</sup></a>
3167 &#8212; a use the Court would later hold was not <span class="quote">«<span class="quote">fair.</span>»</span> By
3168 <span class="quote">«<span class="quote">allowing VCR owners to copy freely by the means of an exemption from
3169 copyright infringement without creating a mechanism to compensate
3170 copyright owners,</span>»</span> Valenti testified, Congress would <span class="quote">«<span class="quote">take from the
3171 owners the very essence of their property: the exclusive right to
3172 control who may use their work, that is, who may copy it and thereby
3173 profit from its reproduction.</span>»</span><a href="#ftn.idp7931168" class="footnote" name="idp7931168"><sup class="footnote">[90]</sup></a>
3174 </p><a class="indexterm" name="idp7932160"></a><p>
3175 It took eight years for this case to be resolved by the Supreme
3176 Court. In the interim, the Ninth Circuit Court of Appeals, which
3177 includes Hollywood in its jurisdiction&#8212;leading Judge Alex
3178 Kozinski, who sits on that court, refers to it as the <span class="quote">«<span class="quote">Hollywood
3179 Circuit</span>»</span>&#8212;held that Sony would be liable for the copyright
3180 infringement made possible by its machines. Under the Ninth Circuit's
3181 rule, this totally familiar technology&#8212;which Jack Valenti had
3182 called <span class="quote">«<span class="quote">the Boston Strangler of the American film industry</span>»</span> (worse
3183 yet, it was a <span class="emphasis"><em>Japanese</em></span> Boston Strangler of the
3184 American film industry)&#8212;was an illegal
3185 technology.<a href="#ftn.idp7934272" class="footnote" name="idp7934272"><sup class="footnote">[91]</sup></a>
3186 <a class="indexterm" name="idp7936752"></a>
3187 </p><p>
3188 But the Supreme Court reversed the decision of the Ninth Circuit.
3189
3190
3191 And in its reversal, the Court clearly articulated its understanding of
3192 when and whether courts should intervene in such disputes. As the
3193 Court wrote,
3194 </p><div class="blockquote"><blockquote class="blockquote"><p>
3195 Sound policy, as well as history, supports our consistent deference
3196 to Congress when major technological innovations alter the
3197                 market
3198 for copyrighted materials. Congress has the constitutional
3199                 authority
3200 and the institutional ability to accommodate fully the
3201 varied permutations of competing interests that are inevitably
3202                 implicated
3203 by such new technology.<a href="#ftn.idp7939424" class="footnote" name="idp7939424"><sup class="footnote">[92]</sup></a>
3204 </p></blockquote></div><a class="indexterm" name="idp7941216"></a><p>
3205 Congress was asked to respond to the Supreme Court's decision.  But as
3206 with the plea of recording artists about radio broadcasts, Congress
3207 ignored the request. Congress was convinced that American film got
3208 enough, this <span class="quote">«<span class="quote">taking</span>»</span> notwithstanding.  If we put these cases
3209 together, a pattern is clear:
3210 </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="idp7955392"></a><p>
3211 In each case throughout our history, a new technology changed the
3212 way content was distributed.<a href="#ftn.idp7956736" class="footnote" name="idp7956736"><sup class="footnote">[93]</sup></a>
3213 In each case, throughout our history,
3214 that change meant that someone got a <span class="quote">«<span class="quote">free ride</span>»</span> on someone else's
3215 work.
3216 </p><p>
3217 In <span class="emphasis"><em>none</em></span> of these cases did either the courts or
3218 Congress eliminate all free riding. In <span class="emphasis"><em>none</em></span> of
3219 these cases did the courts or Congress insist that the law should
3220 assure that the copyright holder get all the value that his copyright
3221 created. In every case, the copyright owners complained of <span class="quote">«<span class="quote">piracy.</span>»</span>
3222 In every case, Congress acted to recognize some of the legitimacy in
3223 the behavior of the <span class="quote">«<span class="quote">pirates.</span>»</span> In each case, Congress allowed some new
3224 technology to benefit from content made before. It balanced the
3225 interests at stake.
3226
3227 </p><a class="indexterm" name="idp7964672"></a><p>
3228 When you think across these examples, and the other examples that
3229 make up the first four chapters of this section, this balance makes
3230 sense. Was Walt Disney a pirate? Would doujinshi be better if creators
3231 had to ask permission? Should tools that enable others to capture and
3232 spread images as a way to cultivate or criticize our culture be better
3233                 regulated?
3234 Is it really right that building a search engine should expose you
3235 to $15 million in damages? Would it have been better if Edison had
3236 controlled film? Should every cover band have to hire a lawyer to get
3237 permission to record a song?
3238 </p><a class="indexterm" name="idp7966416"></a><p>
3239 We could answer yes to each of these questions, but our tradition
3240 has answered no. In our tradition, as the Supreme Court has stated,
3241 copyright <span class="quote">«<span class="quote">has never accorded the copyright owner complete control
3242 over all possible uses of his work.</span>»</span><a href="#ftn.idp7968208" class="footnote" name="idp7968208"><sup class="footnote">[94]</sup></a>
3243 Instead, the particular uses that the law regulates have been defined
3244 by balancing the good that comes from granting an exclusive right
3245 against the burdens such an exclusive right creates. And this
3246 balancing has historically been done <span class="emphasis"><em>after</em></span> a
3247 technology has matured, or settled into the mix of technologies that
3248 facilitate the distribution of content.
3249 </p><p>
3250 We should be doing the same thing today. The technology of the
3251 Internet is changing quickly. The way people connect to the Internet
3252 (wires vs. wireless) is changing very quickly. No doubt the network
3253 should not become a tool for <span class="quote">«<span class="quote">stealing</span>»</span> from artists. But neither
3254 should the law become a tool to entrench one particular way in which
3255 artists (or more accurately, distributors) get paid. As I describe in
3256 some detail in the last chapter of this book, we should be securing
3257 income to artists while we allow the market to secure the most
3258 efficient way to promote and distribute content. This will require
3259 changes in the law, at least in the interim. These changes should be
3260 designed to balance the protection of the law against the strong
3261 public interest that innovation continue.
3262 </p><p>
3263
3264
3265 This is especially true when a new technology enables a vastly
3266 superior mode of distribution. And this p2p has done. P2p technologies
3267 can be ideally efficient in moving content across a widely diverse
3268 network.  Left to develop, they could make the network vastly more
3269 efficient.  Yet these <span class="quote">«<span class="quote">potential public benefits,</span>»</span> as John Schwartz
3270 writes in <em class="citetitle">The New York Times</em>, <span class="quote">«<span class="quote">could be delayed in the P2P
3271 fight.</span>»</span><a href="#ftn.idp7974048" class="footnote" name="idp7974048"><sup class="footnote">[95]</sup></a>
3272 </p><p>
3273 <span class="strong"><strong>Yet when anyone</strong></span> begins to talk
3274 about <span class="quote">«<span class="quote">balance,</span>»</span> the copyright warriors raise a different
3275 argument. <span class="quote">«<span class="quote">All this hand waving about balance and
3276 incentives,</span>»</span> they say, <span class="quote">«<span class="quote">misses a fundamental point. Our
3277 content,</span>»</span> the warriors insist, <span class="quote">«<span class="quote">is our
3278 <span class="emphasis"><em>property</em></span>. Why should we wait for Congress to
3279 `rebalance' our property rights? Do you have to wait before calling
3280 the police when your car has been stolen? And why should Congress
3281 deliberate at all about the merits of this theft? Do we ask whether
3282 the car thief had a good use for the car before we arrest him?</span>»</span>
3283 </p><p>
3284 <span class="quote">«<span class="quote">It is <span class="emphasis"><em>our property</em></span>,</span>»</span> the warriors
3285 insist. <span class="quote">«<span class="quote">And it should be protected just as any other property
3286 is protected.</span>»</span>
3287 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7725520" class="footnote"><p><a href="#idp7725520" class="para"><sup class="para">[70] </sup></a>
3288
3289 See IFPI (International Federation of the Phonographic Industry), <em class="citetitle">The
3290 Recording Industry Commercial Piracy Report 2003</em>, July 2003, available
3291 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #14</a>. See
3292 also Ben Hunt, <span class="quote">«<span class="quote">Companies Warned on Music Piracy Risk,</span>»</span> <em class="citetitle">Financial
3293 Times</em>, 14 February 2003, 11.
3294 </p></div><div id="ftn.idp7753168" class="footnote"><p><a href="#idp7753168" class="para"><sup class="para">[71] </sup></a>
3295
3296 See Peter Drahos with John Braithwaite, Information Feudalism:
3297 <em class="citetitle">Who Owns the Knowledge Economy?</em> (New York: The
3298 New Press, 2003), 10&#8211;13, 209.  The Trade-Related Aspects of
3299 Intellectual Property Rights (TRIPS) agreement obligates member
3300 nations to create administrative and enforcement mechanisms for
3301 intellectual property rights, a costly proposition for developing
3302 countries. Additionally, patent rights may lead to higher prices for
3303 staple industries such as agriculture. Critics of TRIPS question the
3304 disparity between burdens imposed upon developing countries and
3305 benefits conferred to industrialized nations. TRIPS does permit
3306 governments to use patents for public, noncommercial uses without
3307 first obtaining the patent holder's permission. Developing nations may
3308 be able to use this to gain the benefits of foreign patents at lower
3309 prices. This is a promising strategy for developing nations within the
3310 TRIPS framework.
3311 <a class="indexterm" name="idp7656320"></a>
3312 <a class="indexterm" name="idp7755872"></a>
3313 </p></div><div id="ftn.idp7758432" class="footnote"><p><a href="#idp7758432" class="para"><sup class="para">[72] </sup></a>
3314
3315 For an analysis of the economic impact of copying technology, see Stan
3316 Liebowitz, <em class="citetitle">Rethinking the Network Economy</em> (New York: Amacom, 2002),
3317 144&#8211;90. <span class="quote">«<span class="quote">In some instances &#8230; the impact of piracy on the
3318 copyright holder's ability to appropriate the value of the work will
3319 be negligible. One obvious instance is the case where the individual
3320 engaging in pirating would not have purchased an original even if
3321 pirating were not an option.</span>»</span> Ibid., 149.
3322 <a class="indexterm" name="idp7760240"></a>
3323 </p></div><div id="ftn.idp7789744" class="footnote"><p><a href="#idp7789744" class="para"><sup class="para">[73] </sup></a>
3324
3325 <em class="citetitle">Bach</em> v. <em class="citetitle">Longman</em>, 98 Eng. Rep. 1274 (1777).
3326 </p></div><div id="ftn.idp7795136" class="footnote"><p><a href="#idp7795136" class="para"><sup class="para">[74] </sup></a>
3327
3328 <a class="indexterm" name="idp7795776"></a>
3329 See Clayton M. Christensen, <em class="citetitle">The Innovator's Dilemma: The Revolutionary
3330 National Bestseller That Changed the Way We Do Business</em> (New York:
3331 HarperBusiness, 2000). Professor Christensen examines why companies
3332 that give rise to and dominate a product area are frequently unable to
3333 come up with the most creative, paradigm-shifting uses for their own
3334 products.  This job usually falls to outside innovators, who
3335 reassemble existing technology in inventive ways. For a discussion of
3336 Christensen's ideas, see Lawrence Lessig, <em class="citetitle">Future</em>, 89&#8211;92, 139.
3337
3338 <a class="indexterm" name="idp7759552"></a>
3339 </p></div><div id="ftn.idp7802192" class="footnote"><p><a href="#idp7802192" class="para"><sup class="para">[75] </sup></a>
3340
3341 See Carolyn Lochhead, <span class="quote">«<span class="quote">Silicon Valley Dream, Hollywood Nightmare,</span>»</span> <em class="citetitle">San
3342 Francisco Chronicle</em>, 24 September 2002, A1; <span class="quote">«<span class="quote">Rock 'n' Roll Suicide,</span>»</span>
3343 <em class="citetitle">New Scientist</em>, 6 July 2002, 42; Benny Evangelista, <span class="quote">«<span class="quote">Napster Names CEO,
3344 Secures New Financing,</span>»</span> <em class="citetitle">San Francisco Chronicle</em>, 23 May 2003, C1;
3345 <span class="quote">«<span class="quote">Napster's Wake-Up Call,</span>»</span> <em class="citetitle">Economist</em>, 24 June 2000, 23; John Naughton,
3346 <span class="quote">«<span class="quote">Hollywood at War with the Internet</span>»</span> (London) <em class="citetitle">Times</em>, 26 July 2002, 18.
3347 </p></div><div id="ftn.idp7807232" class="footnote"><p><a href="#idp7807232" class="para"><sup class="para">[76] </sup></a>
3348
3349
3350 See Ipsos-Insight, <em class="citetitle">TEMPO: Keeping Pace with Online Music Distribution</em>
3351 (September 2002), reporting that 28 percent of Americans aged twelve
3352 and older have downloaded music off of the Internet and 30 percent have
3353 listened to digital music files stored on their computers.
3354 </p></div><div id="ftn.idp7810912" class="footnote"><p><a href="#idp7810912" class="para"><sup class="para">[77] </sup></a>
3355
3356 Amy Harmon, <span class="quote">«<span class="quote">Industry Offers a Carrot in Online Music Fight,</span>»</span> <em class="citetitle">New
3357 York Times</em>, 6 June 2003, A1.
3358 </p></div><div id="ftn.idp7823376" class="footnote"><p><a href="#idp7823376" class="para"><sup class="para">[78] </sup></a>
3359
3360 See Liebowitz, <em class="citetitle">Rethinking the Network Economy</em>, 148&#8211;49.
3361 <a class="indexterm" name="idp7797824"></a>
3362 </p></div><div id="ftn.idp7829856" class="footnote"><p><a href="#idp7829856" class="para"><sup class="para">[79] </sup></a>
3363
3364 <a class="indexterm" name="idp7830496"></a>
3365 See Cap Gemini Ernst &amp; Young, <em class="citetitle">Technology Evolution and the
3366 Music Industry's Business Model Crisis</em> (2003), 3. This report
3367 describes the music industry's effort to stigmatize the budding
3368 practice of cassette taping in the 1970s, including an advertising
3369 campaign featuring a cassette-shape skull and the caption <span class="quote">«<span class="quote">Home taping
3370 is killing music.</span>»</span>  At the time digital audio tape became a threat,
3371 the Office of Technical Assessment conducted a survey of consumer
3372 behavior. In 1988, 40 percent of consumers older than ten had taped
3373 music to a cassette format. U.S.  Congress, Office of Technology
3374 Assessment, <em class="citetitle">Copyright and Home Copying: Technology Challenges the Law</em>,
3375 OTA-CIT-422 (Washington, D.C.: U.S.  Government Printing Office,
3376 October 1989), 145&#8211;56.  </p></div><div id="ftn.idp7759808" class="footnote"><p><a href="#idp7759808" class="para"><sup class="para">[80] </sup></a>
3377
3378 U.S. Congress, <em class="citetitle">Copyright and Home Copying</em>, 4.
3379 </p></div><div id="ftn.idp7843680" class="footnote"><p><a href="#idp7843680" class="para"><sup class="para">[81] </sup></a>
3380
3381 See Recording Industry Association of America, <em class="citetitle">2002 Yearend Statistics</em>,
3382 available at
3383 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #15</a>. A later
3384 report indicates even greater losses. See Recording Industry
3385 Association of America, <em class="citetitle">Some Facts About Music Piracy</em>, 25 June 2003,
3386 available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
3387 #16</a>: <span class="quote">«<span class="quote">In the past four years, unit shipments of recorded music
3388 have fallen by 26 percent from 1.16 billion units in to 860 million
3389 units in 2002 in the United States (based on units shipped).  In terms
3390 of sales, revenues are down 14 percent, from $14.6 billion in to $12.6
3391 billion last year (based on U.S. dollar value of shipments). The music
3392 industry worldwide has gone from a $39 billion industry in 2000 down
3393 to a $32 billion industry in 2002 (based on U.S. dollar value of
3394 shipments).</span>»</span>
3395 </p></div><div id="ftn.idp7848208" class="footnote"><p><a href="#idp7848208" class="para"><sup class="para">[82] </sup></a>
3396 Jane Black, <span class="quote">«<span class="quote">Big Music's Broken Record,</span>»</span> BusinessWeek online, 13
3397 February 2003, available at
3398 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #17</a>.
3399 <a class="indexterm" name="idp7849984"></a>
3400 </p></div><div id="ftn.idp7852224" class="footnote"><p><a href="#idp7852224" class="para"><sup class="para">[83] </sup></a>
3401
3402 Ibid.
3403 </p></div><div id="ftn.idp7857760" class="footnote"><p><a href="#idp7857760" class="para"><sup class="para">[84] </sup></a>
3404
3405 By one estimate, 75 percent of the music released by the major labels
3406 is no longer in print. See Online Entertainment and Copyright
3407 Law&#8212;Coming Soon to a Digital Device Near You: Hearing Before the
3408 Senate Committee on the Judiciary, 107th Cong., 1st sess. (3 April
3409 2001) (prepared statement of the Future of Music Coalition), available
3410 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #18</a>.
3411 </p></div><div id="ftn.idp7862992" class="footnote"><p><a href="#idp7862992" class="para"><sup class="para">[85] </sup></a>
3412
3413 <a class="indexterm" name="idp7863632"></a>
3414 While there are not good estimates of the number of used record stores
3415 in existence, in 2002, there were 7,198 used book dealers in the
3416 United States, an increase of 20 percent since 1993. See Book Hunter
3417 Press, <em class="citetitle">The Quiet Revolution: The Expansion of the Used Book
3418 Market</em> (2002), available at
3419 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #19</a>. Used
3420 records accounted for $260 million in sales in 2002. See National
3421 Association of Recording Merchandisers, <span class="quote">«<span class="quote">2002 Annual Survey
3422 Results,</span>»</span> available at
3423 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #20</a>.
3424 </p></div><div id="ftn.idp7887376" class="footnote"><p><a href="#idp7887376" class="para"><sup class="para">[86] </sup></a>
3425
3426 See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34-
3427 35 (N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183
3428 MHP, available at
3429
3430 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #21</a>. For an
3431 account of the litigation and its toll on Napster, see Joseph Menn,
3432 <em class="citetitle">All the Rave: The Rise and Fall of Shawn Fanning's Napster</em> (New
3433 York: Crown Business, 2003), 269&#8211;82.
3434 </p></div><div id="ftn.idp7925232" class="footnote"><p><a href="#idp7925232" class="para"><sup class="para">[87] </sup></a>
3435
3436 Copyright Infringements (Audio and Video Recorders): Hearing on
3437 S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st
3438 and 2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion
3439 Picture Association of America, Inc.).
3440 </p></div><div id="ftn.idp7927264" class="footnote"><p><a href="#idp7927264" class="para"><sup class="para">[88] </sup></a>
3441
3442 Copyright Infringements (Audio and Video Recorders), 475.
3443 </p></div><div id="ftn.idp7928240" class="footnote"><p><a href="#idp7928240" class="para"><sup class="para">[89] </sup></a>
3444
3445 <em class="citetitle">Universal City Studios, Inc</em>. v. <em class="citetitle">Sony Corp. of America</em>, 480 F. Supp. 429,
3446 (C.D. Cal., 1979).
3447 </p></div><div id="ftn.idp7931168" class="footnote"><p><a href="#idp7931168" class="para"><sup class="para">[90] </sup></a>
3448
3449 Copyright Infringements (Audio and Video Recorders), 485 (testimony
3450 of Jack Valenti).
3451 </p></div><div id="ftn.idp7934272" class="footnote"><p><a href="#idp7934272" class="para"><sup class="para">[91] </sup></a>
3452
3453 <em class="citetitle">Universal City Studios, Inc</em>. v. <em class="citetitle">Sony Corp. of America</em>, 659 F. 2d 963 (9th Cir.
3454 1981).
3455 </p></div><div id="ftn.idp7939424" class="footnote"><p><a href="#idp7939424" class="para"><sup class="para">[92] </sup></a>
3456
3457 <em class="citetitle">Sony Corp. of America</em> v. <em class="citetitle">Universal City Studios, Inc</em>., 464 U.S. 417, 431 (1984).
3458 </p></div><div id="ftn.idp7956736" class="footnote"><p><a href="#idp7956736" class="para"><sup class="para">[93] </sup></a>
3459
3460 These are the most important instances in our history, but there are other
3461 cases as well. The technology of digital audio tape (DAT), for example,
3462 was regulated by Congress to minimize the risk of piracy. The remedy
3463 Congress imposed did burden DAT producers, by taxing tape sales and
3464 controlling the technology of DAT. See Audio Home Recording Act of
3465 1992 (Title 17 of the <em class="citetitle">United States Code</em>), Pub. L. No. 102-563, 106 Stat.
3466 4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not
3467 eliminate the opportunity for free riding in the sense I've described. See
3468 Lessig, <em class="citetitle">Future</em>, 71. See also Picker, <span class="quote">«<span class="quote">From Edison to the Broadcast Flag,</span>»</span>
3469 <em class="citetitle">University of Chicago Law Review</em> 70 (2003): 293&#8211;96.
3470 <a class="indexterm" name="idp7889376"></a>
3471 <a class="indexterm" name="idp7960448"></a>
3472 </p></div><div id="ftn.idp7968208" class="footnote"><p><a href="#idp7968208" class="para"><sup class="para">[94] </sup></a>
3473
3474 <em class="citetitle">Sony Corp. of America</em> v. <em class="citetitle">Universal City Studios, Inc</em>., 464 U.S. 417,
3475 (1984).
3476 </p></div><div id="ftn.idp7974048" class="footnote"><p><a href="#idp7974048" class="para"><sup class="para">[95] </sup></a>
3477
3478 John Schwartz, <span class="quote">«<span class="quote">New Economy: The Attack on Peer-to-Peer Software
3479 Echoes Past Efforts,</span>»</span> <em class="citetitle">New York Times</em>, 22 September 2003, C3.
3480 </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>
3481
3482
3483 <span class="strong"><strong>The copyright warriors</strong></span> are right: A
3484 copyright is a kind of property. It can be owned and sold, and the law
3485 protects against its theft. Ordinarily, the copyright owner gets to
3486 hold out for any price he wants. Markets reckon the supply and demand
3487 that partially determine the price she can get.
3488 </p><p>
3489 But in ordinary language, to call a copyright a <span class="quote">«<span class="quote">property</span>»</span> right is a
3490 bit misleading, for the property of copyright is an odd kind of
3491 property.  Indeed, the very idea of property in any idea or any
3492 expression is very odd. I understand what I am taking when I take the
3493 picnic table you put in your backyard. I am taking a thing, the picnic
3494 table, and after I take it, you don't have it. But what am I taking
3495 when I take the good <span class="emphasis"><em>idea</em></span> you had to put a picnic
3496 table in the backyard&#8212;by, for example, going to Sears, buying a
3497 table, and putting it in my backyard? What is the thing I am taking
3498 then?
3499 </p><a class="indexterm" name="idp7985824"></a><p>
3500 The point is not just about the thingness of picnic tables versus
3501 ideas, though that's an important difference. The point instead is that
3502
3503 in the ordinary case&#8212;indeed, in practically every case except for a
3504         narrow
3505 range of exceptions&#8212;ideas released to the world are free. I don't
3506 take anything from you when I copy the way you dress&#8212;though I
3507 might seem weird if I did it every day, and especially weird if you are a
3508 woman. Instead, as Thomas Jefferson said (and as is especially true
3509 when I copy the way someone else dresses), <span class="quote">«<span class="quote">He who receives an idea
3510 from me, receives instruction himself without lessening mine; as he who
3511 lights his taper at mine, receives light without darkening me.</span>»</span><a href="#ftn.idp7988096" class="footnote" name="idp7988096"><sup class="footnote">[96]</sup></a>
3512 </p><a class="indexterm" name="idp7989552"></a><p>
3513 The exceptions to free use are ideas and expressions within the
3514 reach of the law of patent and copyright, and a few other domains that
3515 I won't discuss here. Here the law says you can't take my idea or
3516                 expression
3517 without my permission: The law turns the intangible into
3518 property.
3519 </p><p>
3520 But how, and to what extent, and in what form&#8212;the details,
3521 in other words&#8212;matter. To get a good sense of how this practice
3522 of turning the intangible into property emerged, we need to place this
3523 <span class="quote">«<span class="quote">property</span>»</span> in its proper context.<a href="#ftn.idp7992096" class="footnote" name="idp7992096"><sup class="footnote">[97]</sup></a>
3524 </p><p>
3525 My strategy in doing this will be the same as my strategy in the
3526 preceding part. I offer four stories to help put the idea of
3527 <span class="quote">«<span class="quote">copyright material is property</span>»</span> in context. Where did the idea come
3528 from? What are its limits? How does it function in practice? After
3529 these stories, the significance of this true
3530 statement&#8212;<span class="quote">«<span class="quote">copyright material is property</span>»</span>&#8212; will be a bit
3531 more clear, and its implications will be revealed as quite different
3532 from the implications that the copyright warriors would have us draw.
3533 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7988096" class="footnote"><p><a href="#idp7988096" class="para"><sup class="para">[96] </sup></a>
3534
3535 Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in
3536 <em class="citetitle">The Writings of Thomas Jefferson</em>, vol. 6 (Andrew A. Lipscomb and Albert
3537 Ellery Bergh, eds., 1903), 330, 333&#8211;34.
3538 </p></div><div id="ftn.idp7992096" class="footnote"><p><a href="#idp7992096" class="para"><sup class="para">[97] </sup></a>
3539
3540 As the legal realists taught American law, all property rights are
3541 intangible.  A property right is simply a right that an individual has
3542 against the world to do or not do certain things that may or may not
3543 attach to a physical object. The right itself is intangible, even if
3544 the object to which it is (metaphorically) attached is tangible. See
3545 Adam Mossoff, <span class="quote">«<span class="quote">What Is Property?  Putting the Pieces Back Together,</span>»</span>
3546 <em class="citetitle">Arizona Law Review</em> 45 (2003): 373, 429 n. 241.
3547 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="founders"></a>Chapter 6. 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="idp8004480"></a><a class="indexterm" name="idp8005232"></a><a class="indexterm" name="idp8005984"></a><a class="indexterm" name="idxromeoandjulietshakespeare"></a><p>
3548 <span class="strong"><strong>William Shakespeare</strong></span> wrote
3549 <em class="citetitle">Romeo and Juliet</em> in 1595. The play was first
3550 published in 1597. It was the eleventh major play that Shakespeare had
3551 written. He would continue to write plays through 1613, and the plays
3552 that he wrote have continued to define Anglo-American culture ever
3553 since. So deeply have the works of a sixteenth-century writer seeped
3554 into our culture that we often don't even recognize their source.  I
3555 once overheard someone commenting on Kenneth Branagh's adaptation of
3556 Henry V: <span class="quote">«<span class="quote">I liked it, but Shakespeare is so full of
3557 clichés.</span>»</span>
3558 </p><a class="indexterm" name="idp8010320"></a><a class="indexterm" name="idxtonsonjacob"></a><p>
3559 In 1774, almost 180 years after <em class="citetitle">Romeo and Juliet</em> was written, the
3560 <span class="quote">«<span class="quote">copy-right</span>»</span> for the work was still thought by many to be the exclusive
3561 right of a single London publisher, Jacob Tonson.<a href="#ftn.idp8013456" class="footnote" name="idp8013456"><sup class="footnote">[98]</sup></a>
3562 Tonson was the most prominent of a small group of publishers called
3563 the Conger<a href="#ftn.idp8017760" class="footnote" name="idp8017760"><sup class="footnote">[99]</sup></a>
3564 who controlled bookselling in England during the eighteenth
3565 century. The Conger claimed a perpetual right to control the <span class="quote">«<span class="quote">copy</span>»</span> of
3566 books that they had acquired from authors. That perpetual right meant
3567 that no
3568
3569 one else could publish copies of a book to which they held the
3570 copyright.  Prices of the classics were thus kept high; competition to
3571 produce better or cheaper editions was eliminated.
3572 </p><a class="indexterm" name="idp8020208"></a><a class="indexterm" name="idxcopyrightdurationof2"></a><a class="indexterm" name="idp8022448"></a><a class="indexterm" name="idp8023456"></a><p>
3573 Now, there's something puzzling about the year 1774 to anyone who
3574 knows a little about copyright law. The better-known year in the
3575 history of copyright is 1710, the year that the British Parliament
3576 adopted the first <span class="quote">«<span class="quote">copyright</span>»</span> act. Known as the Statute of Anne, the
3577 act stated that all published works would get a copyright term of
3578 fourteen years, renewable once if the author was alive, and that all
3579 works already published by 1710 would get a single term of twenty-one
3580 additional years.<a href="#ftn.idp8025360" class="footnote" name="idp8025360"><sup class="footnote">[100]</sup></a> Under this law, <em class="citetitle">Romeo and Juliet</em> should have been
3581 free in 1731. So why was there any issue about it still being under
3582 Tonson's control in 1774?
3583 </p><a class="indexterm" name="idp8028368"></a><a class="indexterm" name="idp8029344"></a><a class="indexterm" name="idxlawcommonvspositive"></a><a class="indexterm" name="idp8031808"></a><a class="indexterm" name="idp8032560"></a><p>
3584 The reason is that the English hadn't yet agreed on what a <span class="quote">«<span class="quote">copyright</span>»</span>
3585 was&#8212;indeed, no one had. At the time the English passed the
3586 Statute of Anne, there was no other legislation governing copyrights.
3587 The last law regulating publishers, the Licensing Act of 1662, had
3588 expired in 1695. That law gave publishers a monopoly over publishing,
3589 as a way to make it easier for the Crown to control what was
3590 published.  But after it expired, there was no positive law that said
3591 that the publishers, or <span class="quote">«<span class="quote">Stationers,</span>»</span> had an exclusive right to print
3592 books.
3593 </p><a class="indexterm" name="idp8034992"></a><a class="indexterm" name="idp8035968"></a><p>
3594 There was no <span class="emphasis"><em>positive</em></span> law, but that didn't mean
3595 that there was no law. The Anglo-American legal tradition looks to
3596 both the words of legislatures and the words of judges to know the
3597 rules that are to govern how people are to behave. We call the words
3598 from legislatures <span class="quote">«<span class="quote">positive law.</span>»</span> We call the words from judges
3599 <span class="quote">«<span class="quote">common law.</span>»</span> The common law sets the background against which
3600 legislatures legislate; the legislature, ordinarily, can trump that
3601 background only if it passes a law to displace it. And so the real
3602 question after the licensing statutes had expired was whether the
3603 common law protected a copyright, independent of any positive law.
3604 </p><a class="indexterm" name="idp8038864"></a><a class="indexterm" name="idp8039840"></a><a class="indexterm" name="idxbritishparliament"></a><a class="indexterm" name="idp8041824"></a><a class="indexterm" name="idxstatuteofanne"></a><p>
3605 This question was important to the publishers, or <span class="quote">«<span class="quote">booksellers,</span>»</span> as
3606 they were called, because there was growing competition from foreign
3607 publishers. The Scottish, in particular, were increasingly publishing
3608 and exporting books to England. That competition reduced the profits
3609
3610
3611 of the Conger, which reacted by demanding that Parliament pass a law
3612 to again give them exclusive control over publishing. That demand
3613                 ultimately
3614 resulted in the Statute of Anne.
3615 </p><a class="indexterm" name="idxcopyrightasnarrowmonopolyright"></a><p>
3616 The Statute of Anne granted the author or <span class="quote">«<span class="quote">proprietor</span>»</span> of a book an
3617 exclusive right to print that book. In an important limitation,
3618 however, and to the horror of the booksellers, the law gave the
3619 bookseller that right for a limited term. At the end of that term, the
3620 copyright <span class="quote">«<span class="quote">expired,</span>»</span> and the work would then be free and could be
3621 published by anyone. Or so the legislature is thought to have
3622 believed.
3623 </p><a class="indexterm" name="idp8048256"></a><p>
3624 Now, the thing to puzzle about for a moment is this: Why would
3625 Parliament limit the exclusive right? Not why would they limit it to
3626 the particular limit they set, but why would they limit the right
3627 <span class="emphasis"><em>at all?</em></span>
3628 </p><a class="indexterm" name="idp8050208"></a><a class="indexterm" name="idp8051184"></a><a class="indexterm" name="idp8051936"></a><p>
3629 For the booksellers, and the authors whom they represented, had a very
3630 strong claim. Take <em class="citetitle">Romeo and Juliet</em> as an example: That play
3631 was written by Shakespeare. It was his genius that brought it into the
3632 world. He didn't take anybody's property when he created this play
3633 (that's a controversial claim, but never mind), and by his creating
3634 this play, he didn't make it any harder for others to craft a play. So
3635 why is it that the law would ever allow someone else to come along and
3636 take Shakespeare's play without his, or his estate's, permission? What
3637 reason is there to allow someone else to <span class="quote">«<span class="quote">steal</span>»</span> Shakespeare's work?
3638 </p><a class="indexterm" name="idp8054944"></a><p>
3639 The answer comes in two parts. We first need to see something special
3640 about the notion of <span class="quote">«<span class="quote">copyright</span>»</span> that existed at the time of the
3641 Statute of Anne. Second, we have to see something important about
3642 <span class="quote">«<span class="quote">booksellers.</span>»</span>
3643 </p><a class="indexterm" name="idp8057072"></a><p>
3644 First, about copyright. In the last three hundred years, we have come
3645 to apply the concept of <span class="quote">«<span class="quote">copyright</span>»</span> ever more broadly. But in 1710, it
3646 wasn't so much a concept as it was a very particular right. The
3647 copyright was born as a very specific set of restrictions: It forbade
3648 others from reprinting a book. In 1710, the <span class="quote">«<span class="quote">copy-right</span>»</span> was a right
3649 to use a particular machine to replicate a particular work. It did not
3650 go beyond that very narrow right. It did not control any more
3651 generally how
3652
3653 a work could be <span class="emphasis"><em>used</em></span>. Today the right includes a
3654 large collection of restrictions on the freedom of others: It grants
3655 the author the exclusive right to copy, the exclusive right to
3656 distribute, the exclusive right to perform, and so on.
3657 </p><a class="indexterm" name="idp8060624"></a><a class="indexterm" name="idp8061376"></a><p>
3658 So, for example, even if the copyright to Shakespeare's works were
3659 perpetual, all that would have meant under the original meaning of the
3660 term was that no one could reprint Shakespeare's work without the
3661 permission of the Shakespeare estate. It would not have controlled
3662 anything, for example, about how the work could be performed, whether
3663 the work could be translated, or whether Kenneth Branagh would be
3664 allowed to make his films. The <span class="quote">«<span class="quote">copy-right</span>»</span> was only an exclusive
3665 right to print&#8212;no less, of course, but also no more.
3666 </p><a class="indexterm" name="idp8063440"></a><a class="indexterm" name="idxmonopolycopyrightas"></a><a class="indexterm" name="idp8065424"></a><p>
3667 Even that limited right was viewed with skepticism by the British.
3668 They had had a long and ugly experience with <span class="quote">«<span class="quote">exclusive rights,</span>»</span>
3669 especially <span class="quote">«<span class="quote">exclusive rights</span>»</span> granted by the Crown. The English had
3670 fought a civil war in part about the Crown's practice of handing out
3671 monopolies&#8212;especially monopolies for works that already
3672 existed. King Henry VIII granted a patent to print the Bible and a
3673 monopoly to Darcy to print playing cards. The English Parliament began
3674 to fight back against this power of the Crown. In 1656, it passed the
3675 Statute of Monopolies, limiting monopolies to patents for new
3676 inventions. And by 1710, Parliament was eager to deal with the growing
3677 monopoly in publishing.
3678 </p><p>
3679 Thus the <span class="quote">«<span class="quote">copy-right,</span>»</span> when viewed as a monopoly right, was naturally
3680 viewed as a right that should be limited. (However convincing the
3681 claim that <span class="quote">«<span class="quote">it's my property, and I should have it forever,</span>»</span> try
3682 sounding convincing when uttering, <span class="quote">«<span class="quote">It's my monopoly, and I should
3683 have it forever.</span>»</span>) The state would protect the exclusive right, but
3684 only so long as it benefited society. The British saw the harms from
3685 specialinterest favors; they passed a law to stop them.
3686 </p><a class="indexterm" name="idp8069872"></a><a class="indexterm" name="idxbooksellersenglish"></a><a class="indexterm" name="idp8071856"></a><a class="indexterm" name="idxcopyrightdurationof3"></a><p>
3687 Second, about booksellers. It wasn't just that the copyright was a
3688 monopoly. It was also that it was a monopoly held by the booksellers.
3689 Booksellers sound quaint and harmless to us. They were not viewed
3690 as harmless in seventeenth-century England. Members of the Conger
3691
3692
3693 were increasingly seen as monopolists of the worst
3694 kind&#8212;tools of the Crown's repression, selling the liberty of
3695 England to guarantee themselves a monopoly profit. The attacks against
3696 these monopolists were harsh: Milton described them as <span class="quote">«<span class="quote">old patentees
3697 and monopolizers in the trade of book-selling</span>»</span>; they were <span class="quote">«<span class="quote">men who do
3698 not therefore labour in an honest profession to which learning is
3699 indetted.</span>»</span><a href="#ftn.idp8075968" class="footnote" name="idp8075968"><sup class="footnote">[101]</sup></a>
3700 </p><a class="indexterm" name="idp8077248"></a><a class="indexterm" name="idp8078000"></a><p>
3701 Many believed the power the booksellers exercised over the spread of
3702 knowledge was harming that spread, just at the time the Enlightenment
3703 was teaching the importance of education and knowledge spread
3704 generally. The idea that knowledge should be free was a hallmark of
3705 the time, and these powerful commercial interests were interfering
3706 with that idea.
3707 </p><a class="indexterm" name="idxbritishparliament2"></a><p>
3708 To balance this power, Parliament decided to increase competition
3709 among booksellers, and the simplest way to do that was to spread the
3710 wealth of valuable books. Parliament therefore limited the term of
3711 copyrights, and thereby guaranteed that valuable books would become
3712 open to any publisher to publish after a limited time. Thus the setting
3713 of the term for existing works to just twenty-one years was a
3714                 compromise
3715 to fight the power of the booksellers. The limitation on terms was
3716 an indirect way to assure competition among publishers, and thus the
3717 construction and spread of culture.
3718 </p><a class="indexterm" name="idxstatuteofanne2"></a><a class="indexterm" name="idxcopyrightinperpetuity"></a><p>
3719 When 1731 (1710 + 21) came along, however, the booksellers were
3720 getting anxious. They saw the consequences of more competition, and
3721 like every competitor, they didn't like them. At first booksellers simply
3722 ignored the Statute of Anne, continuing to insist on the perpetual right
3723 to control publication. But in 1735 and 1737, they tried to persuade
3724 Parliament to extend their terms. Twenty-one years was not enough,
3725 they said; they needed more time.
3726 </p><p>
3727 Parliament rejected their requests. As one pamphleteer put it, in
3728 words that echo today,
3729 </p><div class="blockquote"><blockquote class="blockquote"><p>
3730 I see no Reason for granting a further Term now, which will not
3731 hold as well for granting it again and again, as often as the Old
3732
3733 ones Expire; so that should this Bill pass, it will in Effect be
3734 establishing a perpetual Monopoly, a Thing deservedly odious in the
3735 Eye of the Law; it will be a great Cramp to Trade, a Discouragement to
3736 Learning, no Benefit to the Authors, but a general Tax on the Publick;
3737 and all this only to increase the private Gain of the
3738 Booksellers.<a href="#ftn.idp8087056" class="footnote" name="idp8087056"><sup class="footnote">[102]</sup></a>
3739 </p></blockquote></div><a class="indexterm" name="idp8089280"></a><a class="indexterm" name="idp8090256"></a><a class="indexterm" name="idp8091232"></a><a class="indexterm" name="idp8091984"></a><a class="indexterm" name="idp8092992"></a><p>
3740 Having failed in Parliament, the publishers turned to the courts in a
3741 series of cases. Their argument was simple and direct: The Statute of
3742 Anne gave authors certain protections through positive law, but those
3743 protections were not intended as replacements for the common law.
3744 Instead, they were intended simply to supplement the common law.
3745 Under common law, it was already wrong to take another person's
3746 creative <span class="quote">«<span class="quote">property</span>»</span> and use it without his permission. The Statute of
3747 Anne, the booksellers argued, didn't change that. Therefore, just
3748 because the protections of the Statute of Anne expired, that didn't
3749 mean the protections of the common law expired: Under the common law
3750 they had the right to ban the publication of a book, even if its
3751 Statute of Anne copyright had expired. This, they argued, was the only
3752 way to protect authors.
3753 </p><a class="indexterm" name="idp8095376"></a><p>
3754 This was a clever argument, and one that had the support of some of
3755 the leading jurists of the day. It also displayed extraordinary
3756 chutzpah.  Until then, as law professor Raymond Patterson has put it,
3757 <span class="quote">«<span class="quote">The publishers &#8230; had as much concern for authors as a cattle
3758 rancher has for cattle.</span>»</span><a href="#ftn.idp7835584" class="footnote" name="idp7835584"><sup class="footnote">[103]</sup></a>
3759 The bookseller didn't care squat for the rights of the author.  His
3760 concern was the monopoly profit that the author's work gave.
3761 </p><a class="indexterm" name="idxdonaldsonalexander"></a><a class="indexterm" name="idp8101824"></a><a class="indexterm" name="idxscottishpublishers"></a><p>
3762 The booksellers' argument was not accepted without a fight.
3763 The hero of this fight was a Scottish bookseller named Alexander
3764 Donaldson.<a href="#ftn.idp8104224" class="footnote" name="idp8104224"><sup class="footnote">[104]</sup></a>
3765 </p><a class="indexterm" name="idxstatuteofanne3"></a><a class="indexterm" name="idxconger"></a><a class="indexterm" name="idp8107968"></a><a class="indexterm" name="idp8108720"></a><p>
3766 Donaldson was an outsider to the London Conger. He began his
3767 career in Edinburgh in 1750. The focus of his business was inexpensive
3768 reprints <span class="quote">«<span class="quote">of standard works whose copyright term had expired,</span>»</span> at least
3769 under the Statute of Anne.<a href="#ftn.idp8110272" class="footnote" name="idp8110272"><sup class="footnote">[105]</sup></a>
3770 Donaldson's publishing house prospered
3771
3772 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
3773 them,</span>»</span> Professor Mark Rose writes, was <span class="quote">«<span class="quote">the young James Boswell
3774 who, together with his friend Andrew Erskine, published an anthology
3775 of contemporary Scottish poems with Donaldson.</span>»</span><a href="#ftn.idp8113616" class="footnote" name="idp8113616"><sup class="footnote">[106]</sup></a>
3776 </p><a class="indexterm" name="idxcommonlaw"></a><p>
3777 When the London booksellers tried to shut down Donaldson's shop in
3778 Scotland, he responded by moving his shop to London, where he sold
3779 inexpensive editions <span class="quote">«<span class="quote">of the most popular English books, in defiance
3780 of the supposed common law right of Literary
3781 Property.</span>»</span><a href="#ftn.idp8116544" class="footnote" name="idp8116544"><sup class="footnote">[107]</sup></a>
3782 His books undercut the Conger prices by 30 to 50 percent, and he
3783 rested his right to compete upon the ground that, under the Statute of
3784 Anne, the works he was selling had passed out of protection.
3785 </p><a class="indexterm" name="idp8118784"></a><a class="indexterm" name="idxmillarvtaylor"></a><p>
3786 The London booksellers quickly brought suit to block <span class="quote">«<span class="quote">piracy</span>»</span> like
3787 Donaldson's. A number of actions were successful against the <span class="quote">«<span class="quote">pirates,</span>»</span>
3788 the most important early victory being <em class="citetitle">Millar</em> v. <em class="citetitle">Taylor</em>.
3789 </p><a class="indexterm" name="idp8122992"></a><a class="indexterm" name="idp8123968"></a><a class="indexterm" name="idxthomsonjames"></a><a class="indexterm" name="idxcopyrightinperpetuity2"></a><a class="indexterm" name="idp8127664"></a><a class="indexterm" name="idp8128416"></a><p>
3790 Millar was a bookseller who in 1729 had purchased the rights to James
3791 Thomson's poem <span class="quote">«<span class="quote">The Seasons.</span>»</span> Millar complied with the requirements of
3792 the Statute of Anne, and therefore received the full protection of the
3793 statute. After the term of copyright ended, Robert Taylor began
3794 printing a competing volume. Millar sued, claiming a perpetual common
3795 law right, the Statute of Anne notwithstanding.<a href="#ftn.idp8130208" class="footnote" name="idp8130208"><sup class="footnote">[108]</sup></a>
3796 </p><a class="indexterm" name="idxmansfieldwilliammurraylord2"></a><p>
3797 Astonishingly to modern lawyers, one of the greatest judges in English
3798 history, Lord Mansfield, agreed with the booksellers. Whatever
3799 protection the Statute of Anne gave booksellers, it did not, he held,
3800 extinguish any common law right. The question was whether the common
3801 law would protect the author against subsequent <span class="quote">«<span class="quote">pirates.</span>»</span>
3802 Mansfield's answer was yes: The common law would bar Taylor from
3803 reprinting Thomson's poem without Millar's permission. That common law
3804 rule thus effectively gave the booksellers a perpetual right to
3805 control the publication of any book assigned to them.
3806 </p><a class="indexterm" name="idp8134592"></a><a class="indexterm" name="idp8135568"></a><a class="indexterm" name="idp8136544"></a><a class="indexterm" name="idxbritishparliament3"></a><p>
3807 Considered as a matter of abstract justice&#8212;reasoning as if
3808 justice were just a matter of logical deduction from first
3809 principles&#8212;Mansfield's conclusion might make some sense. But
3810 what it ignored was the larger issue that Parliament had struggled
3811 with in 1710: How best to limit
3812
3813 the monopoly power of publishers? Parliament's strategy was to offer a
3814 term for existing works that was long enough to buy peace in 1710, but
3815 short enough to assure that culture would pass into competition within
3816 a reasonable period of time. Within twenty-one years, Parliament
3817 believed, Britain would mature from the controlled culture that the
3818 Crown coveted to the free culture that we inherited.
3819 </p><a class="indexterm" name="idp8140112"></a><a class="indexterm" name="idxdonaldsonalexander2"></a><a class="indexterm" name="idxscottishpublishers2"></a><p>
3820 The fight to defend the limits of the Statute of Anne was not to end
3821 there, however, and it is here that Donaldson enters the mix.
3822 </p><a class="indexterm" name="idp8144080"></a><a class="indexterm" name="idp8144832"></a><a class="indexterm" name="idxhouseoflords"></a><a class="indexterm" name="idxsupremecourtushouseoflordsvs"></a><p>
3823 Millar died soon after his victory, so his case was not appealed. His
3824 estate sold Thomson's poems to a syndicate of printers that included
3825 Thomas Beckett.<a href="#ftn.idp8148736" class="footnote" name="idp8148736"><sup class="footnote">[109]</sup></a>
3826 Donaldson then released an unauthorized edition
3827 of Thomson's works. Beckett, on the strength of the decision in <em class="citetitle">Millar</em>,
3828 got an injunction against Donaldson. Donaldson appealed the case to
3829 the House of Lords, which functioned much like our own Supreme
3830 Court. In February of 1774, that body had the chance to interpret the
3831 meaning of Parliament's limits from sixty years before.
3832 </p><a class="indexterm" name="idp8150416"></a><a class="indexterm" name="idp8151392"></a><a class="indexterm" name="idxdonaldsonvbeckett"></a><a class="indexterm" name="idxcommonlaw2"></a><p>
3833 As few legal cases ever do, <em class="citetitle">Donaldson</em> v. <em class="citetitle">Beckett</em> drew an
3834 enormous amount of attention throughout Britain. Donaldson's lawyers
3835 argued that whatever rights may have existed under the common law, the
3836 Statute of Anne terminated those rights. After passage of the Statute
3837 of Anne, the only legal protection for an exclusive right to control
3838 publication came from that statute. Thus, they argued, after the term
3839 specified in the Statute of Anne expired, works that had been
3840 protected by the statute were no longer protected.
3841 </p><a class="indexterm" name="idp8156464"></a><p>
3842 The House of Lords was an odd institution. Legal questions were
3843 presented to the House and voted upon first by the <span class="quote">«<span class="quote">law lords,</span>»</span>
3844 members of special legal distinction who functioned much like the
3845 Justices in our Supreme Court. Then, after the law lords voted, the
3846 House of Lords generally voted.
3847 </p><a class="indexterm" name="idp8158512"></a><a class="indexterm" name="idxcopyrightinperpetuity3"></a><a class="indexterm" name="idxpublicdomainenglishlegalestablishmentof"></a><p>
3848 The reports about the law lords' votes are mixed. On some counts,
3849 it looks as if perpetual copyright prevailed. But there is no ambiguity
3850
3851 about how the House of Lords voted as whole. By a two-to-one majority
3852 (22 to 11) they voted to reject the idea of perpetual copyrights.
3853 Whatever one's understanding of the common law, now a copyright was
3854 fixed for a limited time, after which the work protected by copyright
3855 passed into the public domain.
3856 </p><a class="indexterm" name="idp8163584"></a><a class="indexterm" name="idp8164336"></a><a class="indexterm" name="idp8165088"></a><a class="indexterm" name="idp8165840"></a><a class="indexterm" name="idp8166592"></a><p>
3857 <span class="quote">«<span class="quote">The public domain.</span>»</span> Before the case of <em class="citetitle">Donaldson</em>
3858 v. <em class="citetitle">Beckett</em>, there was no clear idea of a public domain in
3859 England. Before 1774, there was a strong argument that common law
3860 copyrights were perpetual.  After 1774, the public domain was
3861 born. For the first time in Anglo-American history, the legal control
3862 over creative works expired, and the greatest works in English
3863 history&#8212;including those of Shakespeare, Bacon, Milton, Johnson,
3864 and Bunyan&#8212;were free of legal restraint.
3865 </p><a class="indexterm" name="idp8168752"></a><a class="indexterm" name="idp8170384"></a><a class="indexterm" name="idp8171360"></a><a class="indexterm" name="idp8172336"></a><a class="indexterm" name="idp8173312"></a><a class="indexterm" name="idp8174288"></a><p>
3866 It is hard for us to imagine, but this decision by the House of Lords
3867 fueled an extraordinarily popular and political reaction. In Scotland,
3868 where most of the <span class="quote">«<span class="quote">pirate publishers</span>»</span> did their work, people
3869 celebrated the decision in the streets. As the <em class="citetitle">Edinburgh Advertiser</em>
3870 reported, <span class="quote">«<span class="quote">No private cause has so much engrossed the attention of the
3871 public, and none has been tried before the House of Lords in the
3872 decision of which so many individuals were interested.</span>»</span> <span class="quote">«<span class="quote">Great
3873 rejoicing in Edinburgh upon victory over literary property: bonfires
3874 and illuminations.</span>»</span><a href="#ftn.idp8177184" class="footnote" name="idp8177184"><sup class="footnote">[110]</sup></a>
3875 </p><a class="indexterm" name="idp8178080"></a><p>
3876 In London, however, at least among publishers, the reaction was
3877 equally strong in the opposite direction. The <em class="citetitle">Morning Chronicle</em>
3878 reported:
3879 </p><div class="blockquote"><blockquote class="blockquote"><p>
3880 By the above decision &#8230; near 200,000 pounds worth of what was
3881 honestly purchased at public sale, and which was yesterday thought
3882 property is now reduced to nothing. The Booksellers of London and
3883 Westminster, many of whom sold estates and houses to purchase
3884 Copy-right, are in a manner ruined, and those who after many years
3885 industry thought they had acquired a competency to provide for their
3886 families now find themselves without a shilling to devise to their
3887 successors.<a href="#ftn.idp8097088" class="footnote" name="idp8097088"><sup class="footnote">[111]</sup></a>
3888 </p></blockquote></div><a class="indexterm" name="idp8181984"></a><a class="indexterm" name="idp8182736"></a><p>
3889
3890 <span class="quote">«<span class="quote">Ruined</span>»</span> is a bit of an exaggeration. But it is not an exaggeration to
3891 say that the change was profound. The decision of the House of Lords
3892 meant that the booksellers could no longer control how culture in
3893 England would grow and develop. Culture in England was thereafter
3894 <span class="emphasis"><em>free</em></span>.  Not in the sense that copyrights would not
3895 be respected, for of course, for a limited time after a work was
3896 published, the bookseller had an exclusive right to control the
3897 publication of that book. And not in the sense that books could be
3898 stolen, for even after a copyright expired, you still had to buy the
3899 book from someone. But <span class="emphasis"><em>free</em></span> in the sense that the
3900 culture and its growth would no longer be controlled by a small group
3901 of publishers. As every free market does, this free market of free
3902 culture would grow as the consumers and producers chose. English
3903 culture would develop as the many English readers chose to let it
3904 develop&#8212; chose in the books they bought and wrote; chose in the
3905 memes they repeated and endorsed. Chose in a <span class="emphasis"><em>competitive
3906 context</em></span>, not a context in which the choices about what
3907 culture is available to people and how they get access to it are made
3908 by the few despite the wishes of the many.
3909 </p><a class="indexterm" name="idp8187216"></a><a class="indexterm" name="idp8188192"></a><p>
3910 At least, this was the rule in a world where the Parliament is
3911 antimonopoly, resistant to the protectionist pleas of publishers. In a
3912 world where the Parliament is more pliant, free culture would be less
3913 protected.
3914 </p><a class="indexterm" name="idp8189568"></a><a class="indexterm" name="idp8190544"></a><a class="indexterm" name="idp8191520"></a><a class="indexterm" name="idp8192496"></a><a class="indexterm" name="idp8193472"></a><a class="indexterm" name="idp8194448"></a><a class="indexterm" name="idp8195424"></a><a class="indexterm" name="idp8196400"></a><a class="indexterm" name="idp8197376"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8013456" class="footnote"><p><a href="#idp8013456" class="para"><sup class="para">[98] </sup></a>
3915
3916 <a class="indexterm" name="idp8014096"></a>
3917 <a class="indexterm" name="idp8014848"></a>
3918 Jacob Tonson is typically remembered for his associations with prominent
3919 eighteenth-century literary figures, especially John Dryden, and for his
3920 handsome <span class="quote">«<span class="quote">definitive editions</span>»</span> of classic works. In addition to <em class="citetitle">Romeo and
3921 Juliet</em>, he published an astonishing array of works that still remain at the
3922 heart of the English canon, including collected works of Shakespeare, Ben
3923 Jonson, John Milton, and John Dryden. See Keith Walker, <span class="quote">«<span class="quote">Jacob Tonson,
3924 Bookseller,</span>»</span> <em class="citetitle">American Scholar</em> 61:3 (1992): 424&#8211;31.
3925 </p></div><div id="ftn.idp8017760" class="footnote"><p><a href="#idp8017760" class="para"><sup class="para">[99] </sup></a>
3926
3927 Lyman Ray Patterson, <em class="citetitle">Copyright in Historical Perspective</em> (Nashville:
3928 Vanderbilt University Press, 1968), 151&#8211;52.
3929 </p></div><div id="ftn.idp8025360" class="footnote"><p><a href="#idp8025360" class="para"><sup class="para">[100] </sup></a>
3930
3931 <a class="indexterm" name="idp8026000"></a>
3932 As Siva Vaidhyanathan nicely argues, it is erroneous to call this a
3933 <span class="quote">«<span class="quote">copyright law.</span>»</span> See Vaidhyanathan, <em class="citetitle">Copyrights and Copywrongs</em>, 40.
3934 </p></div><div id="ftn.idp8075968" class="footnote"><p><a href="#idp8075968" class="para"><sup class="para">[101] </sup></a>
3935
3936
3937 Philip Wittenberg, <em class="citetitle">The Protection and Marketing of Literary
3938 Property</em> (New York: J. Messner, Inc., 1937), 31.
3939 </p></div><div id="ftn.idp8087056" class="footnote"><p><a href="#idp8087056" class="para"><sup class="para">[102] </sup></a>
3940
3941 A Letter to a Member of Parliament concerning the Bill now depending
3942 in the House of Commons, for making more effectual an Act in the
3943 Eighth Year of the Reign of Queen Anne, entitled, An Act for the
3944 Encouragement of Learning, by Vesting the Copies of Printed Books in
3945 the Authors or Purchasers of such Copies, during the Times therein
3946 mentioned (London, 1735), in Brief Amici Curiae of Tyler T. Ochoa et
3947 al., 8, <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 537 U.S. 186 (2003) (No. 01-618).
3948 </p></div><div id="ftn.idp7835584" class="footnote"><p><a href="#idp7835584" class="para"><sup class="para">[103] </sup></a>
3949
3950 <a class="indexterm" name="idp8097824"></a>
3951 <a class="indexterm" name="idp8098576"></a>
3952 Lyman Ray Patterson, <span class="quote">«<span class="quote">Free Speech, Copyright, and Fair Use,</span>»</span> <em class="citetitle">Vanderbilt
3953 Law Review</em> 40 (1987): 28. For a wonderfully compelling account, see
3954 Vaidhyanathan, 37&#8211;48.
3955 </p></div><div id="ftn.idp8104224" class="footnote"><p><a href="#idp8104224" class="para"><sup class="para">[104] </sup></a>
3956
3957 For a compelling account, see David Saunders, <em class="citetitle">Authorship and Copyright</em>
3958 (London: Routledge, 1992), 62&#8211;69.
3959 </p></div><div id="ftn.idp8110272" class="footnote"><p><a href="#idp8110272" class="para"><sup class="para">[105] </sup></a>
3960
3961 Mark Rose, <em class="citetitle">Authors and Owners</em> (Cambridge: Harvard University Press,
3962 1993), 92.
3963 <a class="indexterm" name="idp8111296"></a>
3964 </p></div><div id="ftn.idp8113616" class="footnote"><p><a href="#idp8113616" class="para"><sup class="para">[106] </sup></a>
3965
3966 Ibid., 93.
3967 </p></div><div id="ftn.idp8116544" class="footnote"><p><a href="#idp8116544" class="para"><sup class="para">[107] </sup></a>
3968
3969 <a class="indexterm" name="idp8117184"></a>
3970 Lyman Ray Patterson, <em class="citetitle">Copyright in Historical Perspective</em>, 167 (quoting
3971 Borwell).
3972 </p></div><div id="ftn.idp8130208" class="footnote"><p><a href="#idp8130208" class="para"><sup class="para">[108] </sup></a>
3973
3974 Howard B. Abrams, <span class="quote">«<span class="quote">The Historic Foundation of American Copyright Law:
3975 Exploding the Myth of Common Law Copyright,</span>»</span> <em class="citetitle">Wayne Law Review</em> 29
3976 (1983): 1152.
3977 </p></div><div id="ftn.idp8148736" class="footnote"><p><a href="#idp8148736" class="para"><sup class="para">[109] </sup></a>
3978
3979 Ibid., 1156.
3980 </p></div><div id="ftn.idp8177184" class="footnote"><p><a href="#idp8177184" class="para"><sup class="para">[110] </sup></a>
3981
3982 Rose, 97.
3983 </p></div><div id="ftn.idp8097088" class="footnote"><p><a href="#idp8097088" class="para"><sup class="para">[111] </sup></a>
3984
3985 Ibid.
3986 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="recorders"></a>Chapter 7. 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>
3987 <span class="strong"><strong>Jon Else</strong></span> is a filmmaker. He is best
3988 known for his documentaries and has been very successful in spreading
3989 his art. He is also a teacher, and as a teacher myself, I envy the
3990 loyalty and admiration that his students feel for him. (I met, by
3991 accident, two of his students at a dinner party.  He was their god.)
3992 </p><p>
3993 Else worked on a documentary that I was involved in. At a break,
3994 he told me a story about the freedom to create with film in America
3995 today.
3996 </p><a class="indexterm" name="idxwagnerrichard"></a><a class="indexterm" name="idp8209888"></a><p>
3997 In 1990, Else was working on a documentary about Wagner's Ring
3998 Cycle. The focus was stagehands at the San Francisco Opera.
3999 Stagehands are a particularly funny and colorful element of an opera.
4000 During a show, they hang out below the stage in the grips' lounge and
4001 in the lighting loft. They make a perfect contrast to the art on the
4002 stage.
4003 </p><a class="indexterm" name="idxsimpsonsthe"></a><p>
4004 During one of the performances, Else was shooting some stagehands
4005 playing checkers. In one corner of the room was a television set.
4006 Playing on the television set, while the stagehands played checkers
4007 and the opera company played Wagner, was <em class="citetitle">The Simpsons</em>. As Else judged
4008
4009 it, this touch of cartoon helped capture the flavor of what was special
4010 about the scene.
4011 </p><a class="indexterm" name="idp8214000"></a><a class="indexterm" name="idp8214976"></a><p>
4012 Years later, when he finally got funding to complete the film, Else
4013 attempted to clear the rights for those few seconds of <em class="citetitle">The Simpsons</em>.
4014 For of course, those few seconds are copyrighted; and of course, to use
4015 copyrighted material you need the permission of the copyright owner,
4016 unless <span class="quote">«<span class="quote">fair use</span>»</span> or some other privilege applies.
4017 </p><a class="indexterm" name="idxgraciefilms"></a><a class="indexterm" name="idxgroeningmatt"></a><p>
4018 Else called <em class="citetitle">Simpsons</em> creator Matt Groening's office to get permission.
4019 Groening approved the shot. The shot was a four-and-a-halfsecond image
4020 on a tiny television set in the corner of the room. How could it hurt?
4021 Groening was happy to have it in the film, but he told Else to contact
4022 Gracie Films, the company that produces the program.
4023 </p><a class="indexterm" name="idxfoxfilmcompany"></a><p>
4024 Gracie Films was okay with it, too, but they, like Groening, wanted
4025 to be careful. So they told Else to contact Fox, Gracie's parent company.
4026 Else called Fox and told them about the clip in the corner of the one
4027 room shot of the film. Matt Groening had already given permission,
4028 Else said. He was just confirming the permission with Fox.
4029 </p><a class="indexterm" name="idp8222976"></a><p>
4030 Then, as Else told me, <span class="quote">«<span class="quote">two things happened. First we discovered
4031 &#8230; that Matt Groening doesn't own his own creation&#8212;or at
4032 least that someone [at Fox] believes he doesn't own his own creation.</span>»</span>
4033 And second, Fox <span class="quote">«<span class="quote">wanted ten thousand dollars as a licensing fee for us
4034 to use this four-point-five seconds of &#8230; entirely unsolicited
4035 <em class="citetitle">Simpsons</em> which was in the corner of the shot.</span>»</span>
4036 </p><a class="indexterm" name="idp8225920"></a><a class="indexterm" name="idp8226784"></a><a class="indexterm" name="idxherrerarebecca"></a><p>
4037 Else was certain there was a mistake. He worked his way up to someone
4038 he thought was a vice president for licensing, Rebecca Herrera.  He
4039 explained to her, <span class="quote">«<span class="quote">There must be some mistake here. &#8230;  We're
4040 asking for your educational rate on this.</span>»</span> That was the educational
4041 rate, Herrera told Else. A day or so later, Else called again to
4042 confirm what he had been told.
4043 </p><a class="indexterm" name="idp8230176"></a><p>
4044 <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
4045 have your facts straight,</span>»</span> she said. It would cost $10,000 to use the
4046 clip of <em class="citetitle">The Simpsons</em> in the corner of a shot in a documentary film
4047 about
4048
4049
4050 Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, <span class="quote">«<span class="quote">And
4051 if you quote me, I'll turn you over to our attorneys.</span>»</span> As an assistant
4052 to Herrera told Else later on, <span class="quote">«<span class="quote">They don't give a shit. They just want
4053 the money.</span>»</span>
4054 </p><a class="indexterm" name="idp8233648"></a><a class="indexterm" name="idp8234624"></a><a class="indexterm" name="idp8235376"></a><p>
4055 Else didn't have the money to buy the right to replay what was playing
4056 on the television backstage at the San Francisco Opera. To reproduce
4057 this reality was beyond the documentary filmmaker's budget. At the
4058 very last minute before the film was to be released, Else digitally
4059 replaced the shot with a clip from another film that he had worked on,
4060 <em class="citetitle">The Day After Trinity</em>, from ten years before.
4061 </p><a class="indexterm" name="idxfoxfilmcompany2"></a><a class="indexterm" name="idxgroeningmatt2"></a><p>
4062 There's no doubt that someone, whether Matt Groening or Fox, owns the
4063 copyright to <em class="citetitle">The Simpsons</em>. That copyright is their property.  To use
4064 that copyrighted material thus sometimes requires the permission of
4065 the copyright owner. If the use that Else wanted to make of the
4066 <em class="citetitle">Simpsons</em> copyright were one of the uses restricted by the law, then he
4067 would need to get the permission of the copyright owner before he
4068 could use the work in that way. And in a free market, it is the owner
4069 of the copyright who gets to set the price for any use that the law
4070 says the owner gets to control.
4071 </p><p>
4072 For example, <span class="quote">«<span class="quote">public performance</span>»</span> is a use of <em class="citetitle">The Simpsons</em> that the
4073 copyright owner gets to control. If you take a selection of favorite
4074 episodes, rent a movie theater, and charge for tickets to come see <span class="quote">«<span class="quote">My
4075 Favorite <em class="citetitle">Simpsons</em>,</span>»</span> then you need to get permission from the copyright
4076 owner. And the copyright owner (rightly, in my view) can charge
4077 whatever she wants&#8212;$10 or $1,000,000. That's her right, as set
4078 by the law.
4079 </p><p>
4080 But when lawyers hear this story about Jon Else and Fox, their first
4081 thought is <span class="quote">«<span class="quote">fair use.</span>»</span><a href="#ftn.idp8244400" class="footnote" name="idp8244400"><sup class="footnote">[112]</sup></a>
4082 Else's use of just 4.5 seconds of an indirect shot of a <em class="citetitle">Simpsons</em>
4083 episode is clearly a fair use of <em class="citetitle">The Simpsons</em>&#8212;and fair use does
4084 not require the permission of anyone.
4085 </p><a class="indexterm" name="idp8247728"></a><a class="indexterm" name="idp8248704"></a><p>
4086
4087 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:
4088 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idxfairuselegalintimidationtacticsagainst"></a><p>
4089 The <em class="citetitle">Simpsons</em> fiasco was for me a great lesson in the gulf between what
4090 lawyers find irrelevant in some abstract sense, and what is crushingly
4091 relevant in practice to those of us actually trying to make and
4092 broadcast documentaries. I never had any doubt that it was <span class="quote">«<span class="quote">clearly
4093 fair use</span>»</span> in an absolute legal sense. But I couldn't rely on the
4094 concept in any concrete way. Here's why:
4095 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><a class="indexterm" name="idp8255216"></a><p>
4096
4097 Before our films can be broadcast, the network requires that we buy
4098 Errors and Omissions insurance. The carriers require a detailed
4099 <span class="quote">«<span class="quote">visual cue sheet</span>»</span> listing the source and licensing status of each
4100 shot in the film. They take a dim view of <span class="quote">«<span class="quote">fair use,</span>»</span> and a claim of
4101 <span class="quote">«<span class="quote">fair use</span>»</span> can grind the application process to a halt.
4102 </p></li><li class="listitem"><a class="indexterm" name="idxfoxfilmcompany3"></a><a class="indexterm" name="idp8259504"></a><a class="indexterm" name="idp8260256"></a><a class="indexterm" name="idp8261008"></a><p>
4103
4104 I probably never should have asked Matt Groening in the first
4105 place. But I knew (at least from folklore) that Fox had a history of
4106 tracking down and stopping unlicensed <em class="citetitle">Simpsons</em> usage, just as George
4107 Lucas had a very high profile litigating <em class="citetitle">Star Wars</em> usage. So I decided
4108 to play by the book, thinking that we would be granted free or cheap
4109 license to four seconds of <em class="citetitle">Simpsons</em>. As a documentary producer working
4110 to exhaustion on a shoestring, the last thing I wanted was to risk
4111 legal trouble, even nuisance legal trouble, and even to defend a
4112 principle.
4113 </p></li><li class="listitem"><p>
4114
4115 I did, in fact, speak with one of your colleagues at Stanford Law
4116 School &#8230; who confirmed that it was fair use. He also confirmed
4117 that Fox would <span class="quote">«<span class="quote">depose and litigate you to within an inch of your
4118 life,</span>»</span> regardless of the merits of my claim. He made clear that it
4119 would boil down to who had the bigger legal department and the deeper
4120 pockets, me or them.
4121
4122 </p><a class="indexterm" name="idp8266112"></a></li><li class="listitem"><p>
4123
4124 The question of fair use usually comes up at the end of the
4125 project, when we are up against a release deadline and out of
4126 money.
4127 </p></li></ol></div></blockquote></div><a class="indexterm" name="idp8268384"></a><p>
4128 In theory, fair use means you need no permission. The theory therefore
4129 supports free culture and insulates against a permission culture.  But
4130 in practice, fair use functions very differently. The fuzzy lines of
4131 the law, tied to the extraordinary liability if lines are crossed,
4132 means that the effective fair use for many types of creators is
4133 slight. The law has the right aim; practice has defeated the aim.
4134 </p><p>
4135 This practice shows just how far the law has come from its
4136 eighteenth-century roots. The law was born as a shield to protect
4137 publishers' profits against the unfair competition of a pirate. It has
4138 matured into a sword that interferes with any use, transformative or
4139 not.
4140 </p><a class="indexterm" name="idp8270848"></a><a class="indexterm" name="idp8271824"></a><a class="indexterm" name="idp8272800"></a><a class="indexterm" name="idp8273776"></a><a class="indexterm" name="idp8274752"></a><a class="indexterm" name="idp8275728"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8244400" class="footnote"><p><a href="#idp8244400" class="para"><sup class="para">[112] </sup></a>
4141
4142 For an excellent argument that such use is <span class="quote">«<span class="quote">fair use,</span>»</span> but that
4143 lawyers don't permit recognition that it is <span class="quote">«<span class="quote">fair use,</span>»</span> see Richard
4144 A. Posner with William F. Patry, <span class="quote">«<span class="quote">Fair Use and Statutory Reform in the
4145 Wake of <em class="citetitle">Eldred</em></span>»</span> (draft on file with author), University of Chicago
4146 Law School, 5 August 2003.
4147 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="transformers"></a>Chapter 8. Transformers</h2></div></div></div><a class="indexterm" name="idp8278256"></a><a class="indexterm" name="idxalbenalex1"></a><a class="indexterm" name="idp8280560"></a><p>
4148 <span class="strong"><strong>In 1993</strong></span>, Alex Alben was a lawyer
4149 working at Starwave, Inc.  Starwave was an innovative company founded
4150 by Microsoft cofounder Paul Allen to develop digital
4151 entertainment. Long before the Internet became popular, Starwave began
4152 investing in new technology for delivering entertainment in
4153 anticipation of the power of networks.
4154 </p><a class="indexterm" name="idxartistsretrospective"></a><a class="indexterm" name="idxcdroms"></a><p>
4155 Alben had a special interest in new technology. He was intrigued by
4156 the emerging market for CD-ROM technology&#8212;not to distribute
4157 film, but to do things with film that otherwise would be very
4158 difficult.  In 1993, he launched an initiative to develop a product to
4159 build retrospectives on the work of particular actors. The first actor
4160 chosen was Clint Eastwood. The idea was to showcase all of the work of
4161 Eastwood, with clips from his films and interviews with figures
4162 important to his career.
4163 </p><p>
4164 At that time, Eastwood had made more than fifty films, as an actor and
4165 as a director. Alben began with a series of interviews with Eastwood,
4166 asking him about his career. Because Starwave produced those
4167 interviews, it was free to include them on the CD.
4168 </p><p>
4169
4170 That alone would not have made a very interesting product, so
4171 Starwave wanted to add content from the movies in Eastwood's career:
4172 posters, scripts, and other material relating to the films Eastwood
4173 made. Most of his career was spent at Warner Brothers, and so it was
4174 relatively easy to get permission for that content.
4175 </p><p>
4176 Then Alben and his team decided to include actual film clips. <span class="quote">«<span class="quote">Our
4177 goal was that we were going to have a clip from every one of
4178 Eastwood's films,</span>»</span> Alben told me. It was here that the problem
4179 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
4180 one had ever tried to do this in the context of an artistic look at an
4181 actor's career.</span>»</span>
4182 </p><p>
4183 Alben brought the idea to Michael Slade, the CEO of Starwave.
4184 Slade asked, <span class="quote">«<span class="quote">Well, what will it take?</span>»</span>
4185 </p><p>
4186 Alben replied, <span class="quote">«<span class="quote">Well, we're going to have to clear rights from
4187 everyone who appears in these films, and the music and everything
4188 else that we want to use in these film clips.</span>»</span> Slade said, <span class="quote">«<span class="quote">Great! Go
4189 for it.</span>»</span><a href="#ftn.idp8292736" class="footnote" name="idp8292736"><sup class="footnote">[113]</sup></a>
4190 </p><p>
4191 The problem was that neither Alben nor Slade had any idea what
4192 clearing those rights would mean. Every actor in each of the films
4193 could have a claim to royalties for the reuse of that film. But CD-
4194 ROMs had not been specified in the contracts for the actors, so there
4195 was no clear way to know just what Starwave was to do.
4196 </p><p>
4197 I asked Alben how he dealt with the problem. With an obvious
4198 pride in his resourcefulness that obscured the obvious bizarreness of his
4199 tale, Alben recounted just what they did:
4200 </p><div class="blockquote"><blockquote class="blockquote"><p>
4201 So we very mechanically went about looking up the film clips.  We made
4202 some artistic decisions about what film clips to include&#8212;of
4203 course we were going to use the <span class="quote">«<span class="quote">Make my day</span>»</span> clip from <em class="citetitle">Dirty
4204 Harry</em>. But you then need to get the guy on the ground who's wiggling
4205 under the gun and you need to get his permission.  And then you have
4206 to decide what you are going to pay him.
4207 </p><p>
4208
4209 We decided that it would be fair if we offered them the dayplayer rate
4210 for the right to reuse that performance. We're talking about a clip of
4211 less than a minute, but to reuse that performance in the CD-ROM the
4212 rate at the time was about $600.  So we had to identify the
4213 people&#8212;some of them were hard to identify because in Eastwood
4214 movies you can't tell who's the guy crashing through the
4215 glass&#8212;is it the actor or is it the stuntman?  And then we just,
4216 we put together a team, my assistant and some others, and we just
4217 started calling people.
4218 </p></blockquote></div><a class="indexterm" name="idp8300448"></a><p>
4219 Some actors were glad to help&#8212;Donald Sutherland, for example,
4220 followed up himself to be sure that the rights had been cleared.
4221 Others were dumbfounded at their good fortune. Alben would ask,
4222 <span class="quote">«<span class="quote">Hey, can I pay you $600 or maybe if you were in two films, you
4223 know, $1,200?</span>»</span> And they would say, <span class="quote">«<span class="quote">Are you for real? Hey, I'd love
4224 to get $1,200.</span>»</span> And some of course were a bit difficult (estranged
4225 ex-wives, in particular). But eventually, Alben and his team had
4226 cleared the rights to this retrospective CD-ROM on Clint Eastwood's
4227 career.
4228 </p><p>
4229 It was one <span class="emphasis"><em>year</em></span> later&#8212;<span class="quote">«<span class="quote">and even then we
4230 weren't sure whether we were totally in the clear.</span>»</span>
4231 </p><p>
4232 Alben is proud of his work. The project was the first of its kind and
4233 the only time he knew of that a team had undertaken such a massive
4234 project for the purpose of releasing a retrospective.
4235 </p><div class="blockquote"><blockquote class="blockquote"><p>
4236 Everyone thought it would be too hard. Everyone just threw up their
4237 hands and said, <span class="quote">«<span class="quote">Oh, my gosh, a film, it's so many copyrights, there's
4238 the music, there's the screenplay, there's the director, there's the
4239 actors.</span>»</span> But we just broke it down. We just put it into its
4240 constituent parts and said, <span class="quote">«<span class="quote">Okay, there's this many actors, this many
4241 directors, &#8230; this many musicians,</span>»</span> and we just went at it very
4242 systematically and cleared the rights.
4243 </p></blockquote></div><p>
4244
4245
4246 And no doubt, the product itself was exceptionally good. Eastwood
4247 loved it, and it sold very well.
4248 </p><a class="indexterm" name="idp8308512"></a><p>
4249 But I pressed Alben about how weird it seems that it would have to
4250 take a year's work simply to clear rights. No doubt Alben had done
4251 this efficiently, but as Peter Drucker has famously quipped, <span class="quote">«<span class="quote">There is
4252 nothing so useless as doing efficiently that which should not be done
4253 at all.</span>»</span><a href="#ftn.idp8310112" class="footnote" name="idp8310112"><sup class="footnote">[114]</sup></a>
4254 Did it make sense, I asked Alben, that this is the way a new work
4255 has to be made?
4256 </p><p>
4257 For, as he acknowledged, <span class="quote">«<span class="quote">very few &#8230; have the time and resources,
4258 and the will to do this,</span>»</span> and thus, very few such works would ever be
4259 made. Does it make sense, I asked him, from the standpoint of what
4260 anybody really thought they were ever giving rights for originally, that
4261 you would have to go clear rights for these kinds of clips?
4262 </p><div class="blockquote"><blockquote class="blockquote"><p>
4263 I don't think so. When an actor renders a performance in a movie,
4264 he or she gets paid very well. &#8230; And then when 30 seconds of
4265 that performance is used in a new product that is a retrospective
4266 of somebody's career, I don't think that that person &#8230; should be
4267 compensated for that.
4268 </p></blockquote></div><p>
4269 Or at least, is this <span class="emphasis"><em>how</em></span> the artist should be
4270 compensated? Would it make sense, I asked, for there to be some kind
4271 of statutory license that someone could pay and be free to make
4272 derivative use of clips like this?  Did it really make sense that a
4273 follow-on creator would have to track down every artist, actor,
4274 director, musician, and get explicit permission from each? Wouldn't a
4275 lot more be created if the legal part of the creative process could be
4276 made to be more clean?
4277 </p><div class="blockquote"><blockquote class="blockquote"><p>
4278 Absolutely. I think that if there were some fair-licensing
4279 mechanism&#8212;where you weren't subject to hold-ups and you weren't
4280 subject to estranged former spouses&#8212;you'd see a lot more of this
4281 work, because it wouldn't be so daunting to try to put together a
4282
4283 retrospective of someone's career and meaningfully illustrate it with
4284 lots of media from that person's career. You'd build in a cost as the
4285 producer of one of these things. You'd build in a cost of paying X
4286 dollars to the talent that performed. But it would be a known
4287 cost. That's the thing that trips everybody up and makes this kind of
4288 product hard to get off the ground. If you knew I have a hundred
4289 minutes of film in this product and it's going to cost me X, then you
4290 build your budget around it, and you can get investments and
4291 everything else that you need to produce it. But if you say, <span class="quote">«<span class="quote">Oh, I
4292 want a hundred minutes of something and I have no idea what it's going
4293 to cost me, and a certain number of people are going to hold me up for
4294 money,</span>»</span> then it becomes difficult to put one of these things together.
4295 </p></blockquote></div><p>
4296 Alben worked for a big company. His company was backed by some of the
4297 richest investors in the world. He therefore had authority and access
4298 that the average Web designer would not have. So if it took him a
4299 year, how long would it take someone else? And how much creativity is
4300 never made just because the costs of clearing the rights are so high?
4301 </p><a class="indexterm" name="idp8319280"></a><a class="indexterm" name="idp8320448"></a><p>
4302 These costs are the burdens of a kind of regulation. Put on a
4303 Republican hat for a moment, and get angry for a bit. The government
4304 defines the scope of these rights, and the scope defined determines
4305 how much it's going to cost to negotiate them. (Remember the idea that
4306 land runs to the heavens, and imagine the pilot purchasing flythrough
4307 rights as he negotiates to fly from Los Angeles to San Francisco.)
4308 These rights might well have once made sense; but as circumstances
4309 change, they make no sense at all. Or at least, a well-trained,
4310 regulationminimizing Republican should look at the rights and ask,
4311 <span class="quote">«<span class="quote">Does this still make sense?</span>»</span>
4312 </p><a class="indexterm" name="idp8323808"></a><p>
4313 I've seen the flash of recognition when people get this point, but only
4314 a few times. The first was at a conference of federal judges in California.
4315 The judges were gathered to discuss the emerging topic of cyber-law. I
4316 was asked to be on the panel. Harvey Saferstein, a well-respected lawyer
4317
4318
4319 from an L.A. firm, introduced the panel with a video that he and a
4320 friend, Robert Fairbank, had produced.
4321 </p><p>
4322 The video was a brilliant collage of film from every period in the
4323 twentieth century, all framed around the idea of a <em class="citetitle">60 Minutes</em> episode.
4324 The execution was perfect, down to the sixty-minute stopwatch. The
4325 judges loved every minute of it.
4326 </p><a class="indexterm" name="idp8327216"></a><p>
4327 When the lights came up, I looked over to my copanelist, David
4328 Nimmer, perhaps the leading copyright scholar and practitioner in the
4329 nation. He had an astonished look on his face, as he peered across the
4330 room of over 250 well-entertained judges. Taking an ominous tone, he
4331 began his talk with a question: <span class="quote">«<span class="quote">Do you know how many federal laws
4332 were just violated in this room?</span>»</span>
4333 </p><p>
4334 <a class="indexterm" name="idp8329456"></a>
4335 <a class="indexterm" name="idp8330272"></a>
4336 <a class="indexterm" name="idp8331088"></a>
4337 <a class="indexterm" name="idp8332192"></a>
4338 <a class="indexterm" name="idp8333024"></a>
4339 For of course, the two brilliantly talented creators who made this
4340 film hadn't done what Alben did. They hadn't spent a year clearing the
4341 rights to these clips; technically, what they had done violated the
4342 law.  Of course, it wasn't as if they or anyone were going to be
4343 prosecuted for this violation (the presence of 250 judges and a gaggle
4344 of federal marshals notwithstanding). But Nimmer was making an
4345 important point: A year before anyone would have heard of the word
4346 Napster, and two years before another member of our panel, David
4347 Boies, would defend Napster before the Ninth Circuit Court of Appeals,
4348 Nimmer was trying to get the judges to see that the law would not be
4349 friendly to the capacities that this technology would
4350 enable. Technology means you can now do amazing things easily; but you
4351 couldn't easily do them legally.
4352 </p><p>
4353 We live in a <span class="quote">«<span class="quote">cut and paste</span>»</span> culture enabled by technology. Anyone
4354 building a presentation knows the extraordinary freedom that the cut
4355 and paste architecture of the Internet created&#8212;in a second you can
4356 find just about any image you want; in another second, you can have it
4357 planted in your presentation.
4358 </p><a class="indexterm" name="idp8335520"></a><p>
4359 But presentations are just a tiny beginning. Using the Internet and
4360
4361 its archives, musicians are able to string together mixes of sound
4362 never before imagined; filmmakers are able to build movies out of
4363 clips on computers around the world. An extraordinary site in Sweden
4364 takes images of politicians and blends them with music to create
4365 biting political commentary. A site called Camp Chaos has produced
4366 some of the most biting criticism of the record industry that there is
4367 through the mixing of Flash! and music.
4368 </p><p>
4369 All of these creations are technically illegal. Even if the creators
4370 wanted to be <span class="quote">«<span class="quote">legal,</span>»</span> the cost of complying with the law is impossibly
4371 high. Therefore, for the law-abiding sorts, a wealth of creativity is
4372 never made. And for that part that is made, if it doesn't follow the
4373 clearance rules, it doesn't get released.
4374 </p><p>
4375 To some, these stories suggest a solution: Let's alter the mix of
4376 rights so that people are free to build upon our culture. Free to add
4377 or mix as they see fit. We could even make this change without
4378 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>
4379 Instead, the system could simply make it easy for follow-on creators
4380 to compensate artists without requiring an army of lawyers to come
4381 along: a rule, for example, that says <span class="quote">«<span class="quote">the royalty owed the copyright
4382 owner of an unregistered work for the derivative reuse of his work
4383 will be a flat 1 percent of net revenues, to be held in escrow for the
4384 copyright owner.</span>»</span> Under this rule, the copyright owner could benefit
4385 from some royalty, but he would not have the benefit of a full
4386 property right (meaning the right to name his own price) unless he
4387 registers the work.
4388 </p><p>
4389 Who could possibly object to this? And what reason would there be
4390 for objecting? We're talking about work that is not now being made;
4391 which if made, under this plan, would produce new income for artists.
4392 What reason would anyone have to oppose it?
4393 </p><p>
4394 <span class="strong"><strong>In February 2003</strong></span>, DreamWorks
4395 studios announced an agreement with Mike Myers, the comic genius of
4396 <em class="citetitle">Saturday Night Live</em> and
4397
4398 Austin Powers. According to the announcement, Myers and Dream-Works
4399 would work together to form a <span class="quote">«<span class="quote">unique filmmaking pact.</span>»</span> Under the
4400 agreement, DreamWorks <span class="quote">«<span class="quote">will acquire the rights to existing motion
4401 picture hits and classics, write new storylines and&#8212;with the use
4402 of stateof-the-art digital technology&#8212;insert Myers and other
4403 actors into the film, thereby creating an entirely new piece of
4404 entertainment.</span>»</span>
4405 </p><p>
4406 The announcement called this <span class="quote">«<span class="quote">film sampling.</span>»</span> As Myers explained,
4407 <span class="quote">«<span class="quote">Film Sampling is an exciting way to put an original spin on existing
4408 films and allow audiences to see old movies in a new light. Rap
4409 artists have been doing this for years with music and now we are able
4410 to take that same concept and apply it to film.</span>»</span> Steven Spielberg is
4411 quoted as saying, <span class="quote">«<span class="quote">If anyone can create a way to bring old films to
4412 new audiences, it is Mike.</span>»</span>
4413 </p><p>
4414 Spielberg is right. Film sampling by Myers will be brilliant. But if
4415 you don't think about it, you might miss the truly astonishing point
4416 about this announcement. As the vast majority of our film heritage
4417 remains under copyright, the real meaning of the DreamWorks
4418 announcement is just this: It is Mike Myers and only Mike Myers who is
4419 free to sample. Any general freedom to build upon the film archive of
4420 our culture, a freedom in other contexts presumed for us all, is now a
4421 privilege reserved for the funny and famous&#8212;and presumably rich.
4422 </p><p>
4423 This privilege becomes reserved for two sorts of reasons. The first
4424 continues the story of the last chapter: the vagueness of <span class="quote">«<span class="quote">fair use.</span>»</span>
4425 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
4426 rely upon so weak a doctrine to create. That leads to the second reason
4427 that the privilege is reserved for the few: The costs of negotiating the
4428 legal rights for the creative reuse of content are astronomically high.
4429 These costs mirror the costs with fair use: You either pay a lawyer to
4430 defend your fair use rights or pay a lawyer to track down permissions
4431 so you don't have to rely upon fair use rights. Either way, the creative
4432 process is a process of paying lawyers&#8212;again a privilege, or perhaps a
4433 curse, reserved for the few.
4434 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8292736" class="footnote"><p><a href="#idp8292736" class="para"><sup class="para">[113] </sup></a>
4435
4436 Technically, the rights that Alben had to clear were mainly those of
4437 publicity&#8212;rights an artist has to control the commercial
4438 exploitation of his image.  But these rights, too, burden <span class="quote">«<span class="quote">Rip, Mix,
4439 Burn</span>»</span> creativity, as this chapter evinces.
4440 <a class="indexterm" name="idp8294336"></a>
4441 <a class="indexterm" name="idp8295456"></a>
4442 </p></div><div id="ftn.idp8310112" class="footnote"><p><a href="#idp8310112" class="para"><sup class="para">[114] </sup></a>
4443
4444 U.S. Department of Commerce Office of Acquisition Management, <em class="citetitle">Seven
4445 Steps to Performance-Based Services Acquisition</em>, available at
4446 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #22</a>.
4447 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="collectors"></a>Chapter 9. Collectors</h2></div></div></div><a class="indexterm" name="idxarchivesdigital1"></a><a class="indexterm" name="idp8354240"></a><p>
4448 <span class="strong"><strong>In April 1996</strong></span>, millions of
4449 <span class="quote">«<span class="quote">bots</span>»</span>&#8212;computer codes designed to
4450 <span class="quote">«<span class="quote">spider,</span>»</span> or automatically search the Internet and copy
4451 content&#8212;began running across the Net. Page by page, these bots
4452 copied Internet-based information onto a small set of computers
4453 located in a basement in San Francisco's Presidio. Once the bots
4454 finished the whole of the Internet, they started again. Over and over
4455 again, once every two months, these bits of code took copies of the
4456 Internet and stored them.
4457 </p><a class="indexterm" name="idp8357552"></a><p>
4458 By October 2001, the bots had collected more than five years of
4459 copies. And at a small announcement in Berkeley, California, the
4460 archive that these copies created, the Internet Archive, was opened to
4461 the world. Using a technology called <span class="quote">«<span class="quote">the Way Back Machine,</span>»</span> you could
4462 enter a Web page, and see all of its copies going back to 1996, as
4463 well as when those pages changed.
4464 </p><a class="indexterm" name="idxorwellgeorge"></a><p>
4465 This is the thing about the Internet that Orwell would have
4466 appreciated.  In the dystopia described in <em class="citetitle">1984</em>, old newspapers were
4467 constantly updated to assure that the current view of the world,
4468 approved of by the government, was not contradicted by previous news
4469 reports.
4470 </p><p>
4471
4472 Thousands of workers constantly reedited the past, meaning there was
4473 no way ever to know whether the story you were reading today was the
4474 story that was printed on the date published on the paper.
4475 </p><p>
4476 It's the same with the Internet. If you go to a Web page today,
4477 there's no way for you to know whether the content you are reading is
4478 the same as the content you read before. The page may seem the same,
4479 but the content could easily be different. The Internet is Orwell's
4480 library&#8212;constantly updated, without any reliable memory.
4481 </p><a class="indexterm" name="idp8363216"></a><a class="indexterm" name="idp8365024"></a><p>
4482 Until the Way Back Machine, at least. With the Way Back Machine, and
4483 the Internet Archive underlying it, you can see what the Internet
4484 was. You have the power to see what you remember. More importantly,
4485 perhaps, you also have the power to find what you don't remember and
4486 what others might prefer you forget.<a href="#ftn.idp8366416" class="footnote" name="idp8366416"><sup class="footnote">[115]</sup></a>
4487 </p><a class="indexterm" name="idp8370160"></a><p>
4488 <span class="strong"><strong>We take it</strong></span> for granted that we can
4489 go back to see what we remember reading. Think about newspapers. If
4490 you wanted to study the reaction of your hometown newspaper to the
4491 race riots in Watts in 1965, or to Bull Connor's water cannon in 1963,
4492 you could go to your public library and look at the newspapers. Those
4493 papers probably exist on microfiche. If you're lucky, they exist in
4494 paper, too. Either way, you are free, using a library, to go back and
4495 remember&#8212;not just what it is convenient to remember, but
4496 remember something close to the truth.
4497 </p><p>
4498 It is said that those who fail to remember history are doomed to
4499 repeat it. That's not quite correct. We <span class="emphasis"><em>all</em></span>
4500 forget history. The key is whether we have a way to go back to
4501 rediscover what we forget. More directly, the key is whether an
4502 objective past can keep us honest. Libraries help do that, by
4503 collecting content and keeping it, for schoolchildren, for
4504 researchers, for grandma. A free society presumes this knowedge.
4505 </p><p>
4506 The Internet was an exception to this presumption. Until the Internet
4507 Archive, there was no way to go back. The Internet was the
4508 quintessentially transitory medium. And yet, as it becomes more
4509 important in forming and reforming society, it becomes more and more
4510
4511 important to maintain in some historical form. It's just bizarre to
4512 think that we have scads of archives of newspapers from tiny towns
4513 around the world, yet there is but one copy of the Internet&#8212;the
4514 one kept by the Internet Archive.
4515 </p><p>
4516 Brewster Kahle is the founder of the Internet Archive. He was a very
4517 successful Internet entrepreneur after he was a successful computer
4518 researcher.  In the 1990s, Kahle decided he had had enough business
4519 success.  It was time to become a different kind of success. So he
4520 launched a series of projects designed to archive human knowledge. The
4521 Internet Archive was just the first of the projects of this Andrew
4522 Carnegie of the Internet. By December of 2002, the archive had over 10
4523 billion pages, and it was growing at about a billion pages a month.
4524 </p><a class="indexterm" name="idp8376144"></a><a class="indexterm" name="idp8376896"></a><a class="indexterm" name="idp8377680"></a><a class="indexterm" name="idp8378496"></a><a class="indexterm" name="idp8379312"></a><a class="indexterm" name="idxnewscoverage2"></a><p>
4525 The Way Back Machine is the largest archive of human knowledge in
4526 human history. At the end of 2002, it held <span class="quote">«<span class="quote">two hundred and thirty
4527 terabytes of material</span>»</span>&#8212;and was <span class="quote">«<span class="quote">ten times larger than the
4528 Library of Congress.</span>»</span> And this was just the first of the archives that
4529 Kahle set out to build. In addition to the Internet Archive, Kahle has
4530 been constructing the Television Archive. Television, it turns out, is
4531 even more ephemeral than the Internet. While much of twentieth-century
4532 culture was constructed through television, only a tiny proportion of
4533 that culture is available for anyone to see today. Three hours of news
4534 are recorded each evening by Vanderbilt University&#8212;thanks to a
4535 specific exemption in the copyright law. That content is indexed, and
4536 is available to scholars for a very low fee. <span class="quote">«<span class="quote">But other than that,
4537 [television] is almost unavailable,</span>»</span> Kahle told me. <span class="quote">«<span class="quote">If you were
4538 Barbara Walters you could get access to [the archives], but if you are
4539 just a graduate student?</span>»</span> As Kahle put it,
4540 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idp8385264"></a><a class="indexterm" name="idp8386080"></a><p>
4541 Do you remember when Dan Quayle was interacting with Murphy Brown?
4542 Remember that back and forth surreal experience of a politician
4543 interacting with a fictional television character? If you were a
4544 graduate student wanting to study that, and you wanted to get those
4545 original back and forth exchanges between the two, the
4546
4547
4548 <em class="citetitle">60 Minutes</em> episode that came out after it &#8230; it would be almost
4549 impossible. &#8230; Those materials are almost unfindable. &#8230;
4550 </p></blockquote></div><a class="indexterm" name="idp8388656"></a><p>
4551 Why is that? Why is it that the part of our culture that is recorded
4552 in newspapers remains perpetually accessible, while the part that is
4553 recorded on videotape is not? How is it that we've created a world
4554 where researchers trying to understand the effect of media on
4555 nineteenthcentury America will have an easier time than researchers
4556 trying to understand the effect of media on twentieth-century America?
4557 </p><p>
4558 In part, this is because of the law. Early in American copyright law,
4559 copyright owners were required to deposit copies of their work in
4560 libraries.  These copies were intended both to facilitate the spread
4561 of knowledge and to assure that a copy of the work would be around
4562 once the copyright expired, so that others might access and copy the
4563 work.
4564 </p><a class="indexterm" name="idp8391632"></a><a class="indexterm" name="idp8392448"></a><p>
4565 These rules applied to film as well. But in 1915, the Library
4566 of Congress made an exception for film. Film could be copyrighted so
4567 long as such deposits were made. But the filmmaker was then allowed to
4568 borrow back the deposits&#8212;for an unlimited time at no cost. In
4569 1915 alone, there were more than 5,475 films deposited and <span class="quote">«<span class="quote">borrowed
4570 back.</span>»</span>  Thus, when the copyrights to films expire, there is no copy
4571 held by any library. The copy exists&#8212;if it exists at
4572 all&#8212;in the library archive of the film company.<a href="#ftn.idp8394672" class="footnote" name="idp8394672"><sup class="footnote">[116]</sup></a>
4573 </p><p>
4574 The same is generally true about television. Television broadcasts
4575 were originally not copyrighted&#8212;there was no way to capture the
4576 broadcasts, so there was no fear of <span class="quote">«<span class="quote">theft.</span>»</span> But as technology enabled
4577 capturing, broadcasters relied increasingly upon the law. The law
4578 required they make a copy of each broadcast for the work to be
4579 <span class="quote">«<span class="quote">copyrighted.</span>»</span>  But those copies were simply kept by the
4580 broadcasters. No library had any right to them; the government didn't
4581 demand them.  The content of this part of American culture is
4582 practically invisible to anyone who would look.
4583 </p><a class="indexterm" name="idp8399168"></a><p>
4584 Kahle was eager to correct this. Before September 11, 2001, he and
4585
4586 his allies had started capturing television. They selected twenty
4587 stations from around the world and hit the Record button. After
4588 September 11, Kahle, working with dozens of others, selected twenty
4589 stations from around the world and, beginning October 11, 2001, made
4590 their coverage during the week of September 11 available free on-line.
4591 Anyone could see how news reports from around the world covered the
4592 events of that day.
4593 </p><a class="indexterm" name="idp8401136"></a><a class="indexterm" name="idp8401920"></a><a class="indexterm" name="idp8403024"></a><a class="indexterm" name="idp8404224"></a><a class="indexterm" name="idp8405328"></a><a class="indexterm" name="idp8406144"></a><a class="indexterm" name="idp8406960"></a><a class="indexterm" name="idp8407776"></a><p>
4594 Kahle had the same idea with film. Working with Rick Prelinger, whose
4595 archive of film includes close to 45,000 <span class="quote">«<span class="quote">ephemeral films</span>»</span> (meaning
4596 films other than Hollywood movies, films that were never copyrighted),
4597 Kahle established the Movie Archive. Prelinger let Kahle digitize
4598 1,300 films in this archive and post those films on the Internet to be
4599 downloaded for free. Prelinger's is a for-profit company. It sells
4600 copies of these films as stock footage. What he has discovered is that
4601 after he made a significant chunk available for free, his stock
4602 footage sales went up dramatically. People could easily find the
4603 material they wanted to use. Some downloaded that material and made
4604 films on their own. Others purchased copies to enable other films to
4605 be made.  Either way, the archive enabled access to this important
4606 part of our culture.  Want to see a copy of the <span class="quote">«<span class="quote">Duck and Cover</span>»</span> film
4607 that instructed children how to save themselves in the middle of
4608 nuclear attack? Go to archive.org, and you can download the film in a
4609 few minutes&#8212;for free.
4610 </p><p>
4611 Here again, Kahle is providing access to a part of our culture that we
4612 otherwise could not get easily, if at all. It is yet another part of
4613 what defines the twentieth century that we have lost to history. The
4614 law doesn't require these copies to be kept by anyone, or to be
4615 deposited in an archive by anyone. Therefore, there is no simple way
4616 to find them.
4617 </p><p>
4618 The key here is access, not price. Kahle wants to enable free access
4619 to this content, but he also wants to enable others to sell access to
4620 it. His aim is to ensure competition in access to this important part
4621 of our culture.  Not during the commercial life of a bit of creative
4622 property, but during a second life that all creative property
4623 has&#8212;a noncommercial life.
4624 </p><p>
4625 For here is an idea that we should more clearly recognize. Every bit
4626 of creative property goes through different <span class="quote">«<span class="quote">lives.</span>»</span> In its first
4627 life, if the
4628
4629
4630 creator is lucky, the content is sold. In such cases the commercial
4631 market is successful for the creator. The vast majority of creative
4632 property doesn't enjoy such success, but some clearly does. For that
4633 content, commercial life is extremely important. Without this
4634 commercial market, there would be, many argue, much less creativity.
4635 </p><p>
4636 After the commercial life of creative property has ended, our
4637 tradition has always supported a second life as well. A newspaper
4638 delivers the news every day to the doorsteps of America. The very next
4639 day, it is used to wrap fish or to fill boxes with fragile gifts or to
4640 build an archive of knowledge about our history. In this second life,
4641 the content can continue to inform even if that information is no
4642 longer sold.
4643 </p><a class="indexterm" name="idp8414848"></a><p>
4644 The same has always been true about books. A book goes out of print
4645 very quickly (the average today is after about a year<a href="#ftn.idp8416320" class="footnote" name="idp8416320"><sup class="footnote">[117]</sup></a>). After
4646 it is out of print, it can be sold in used book stores without the
4647 copyright owner getting anything and stored in libraries, where many
4648 get to read the book, also for free. Used book stores and libraries
4649 are thus the second life of a book. That second life is extremely
4650 important to the spread and stability of culture.
4651 </p><p>
4652 Yet increasingly, any assumption about a stable second life for
4653 creative property does not hold true with the most important
4654 components of popular culture in the twentieth and twenty-first
4655 centuries. For these&#8212;television, movies, music, radio, the
4656 Internet&#8212;there is no guarantee of a second life. For these sorts
4657 of culture, it is as if we've replaced libraries with Barnes &amp;
4658 Noble superstores. With this culture, what's accessible is nothing but
4659 what a certain limited market demands.  Beyond that, culture
4660 disappears.
4661 </p><p>
4662 <span class="strong"><strong>For most of</strong></span> the twentieth century,
4663 it was economics that made this so. It would have been insanely
4664 expensive to collect and make accessible all television and film and
4665 music: The cost of analog copies is extraordinarily high. So even
4666 though the law in principle would have restricted the ability of a
4667 Brewster Kahle to copy culture generally, the
4668
4669 real restriction was economics. The market made it impossibly
4670 difficult to do anything about this ephemeral culture; the law had
4671 little practical effect.
4672 </p><p>
4673 Perhaps the single most important feature of the digital revolution is
4674 that for the first time since the Library of Alexandria, it is
4675 feasible to imagine constructing archives that hold all culture
4676 produced or distributed publicly. Technology makes it possible to
4677 imagine an archive of all books published, and increasingly makes it
4678 possible to imagine an archive of all moving images and sound.
4679 </p><p>
4680 The scale of this potential archive is something we've never imagined
4681 before. The Brewster Kahles of our history have dreamed about it; but
4682 we are for the first time at a point where that dream is possible. As
4683 Kahle describes,
4684 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idp8425536"></a><p>
4685 It looks like there's about two to three million recordings of music.
4686 Ever. There are about a hundred thousand theatrical releases of
4687 movies, &#8230; and about one to two million movies [distributed] during
4688 the twentieth century. There are about twenty-six million different
4689 titles of books. All of these would fit on computers that would fit in
4690 this room and be able to be afforded by a small company.  So we're at
4691 a turning point in our history. Universal access is the goal. And the
4692 opportunity of leading a different life, based on this, is
4693 &#8230; thrilling. It could be one of the things humankind would be most
4694 proud of. Up there with the Library of Alexandria, putting a man on
4695 the moon, and the invention of the printing press.
4696 </p></blockquote></div><a class="indexterm" name="idp8427936"></a><p>
4697 Kahle is not the only librarian. The Internet Archive is not the only
4698 archive. But Kahle and the Internet Archive suggest what the future of
4699 libraries or archives could be. <span class="emphasis"><em>When</em></span> the
4700 commercial life of creative property ends, I don't know. But it
4701 does. And whenever it does, Kahle and his archive hint at a world
4702 where this knowledge, and culture, remains perpetually available. Some
4703 will draw upon it to understand it;
4704
4705 some to criticize it. Some will use it, as Walt Disney did, to
4706 re-create the past for the future. These technologies promise
4707 something that had become unimaginable for much of our past&#8212;a
4708 future <span class="emphasis"><em>for</em></span> our past. The technology of digital
4709 arts could make the dream of the Library of Alexandria real again.
4710 </p><p>
4711 Technologists have thus removed the economic costs of building such an
4712 archive. But lawyers' costs remain. For as much as we might like to
4713 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,
4714 the <span class="quote">«<span class="quote">content</span>»</span> that is collected in these digital spaces is also
4715 someone's <span class="quote">«<span class="quote">property.</span>»</span> And the law of property restricts the freedoms
4716 that Kahle and others would exercise.
4717 </p><a class="indexterm" name="idp8433408"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8366416" class="footnote"><p><a href="#idp8366416" class="para"><sup class="para">[115] </sup></a>
4718
4719 <a class="indexterm" name="idp8367152"></a>
4720 <a class="indexterm" name="idp8367936"></a>
4721 The temptations remain, however. Brewster Kahle reports that the White
4722 House changes its own press releases without notice. A May 13, 2003,
4723 press release stated, <span class="quote">«<span class="quote">Combat Operations in Iraq Have Ended.</span>»</span> That was
4724 later changed, without notice, to <span class="quote">«<span class="quote">Major Combat Operations in Iraq
4725 Have Ended.</span>»</span>  E-mail from Brewster Kahle, 1 December 2003.
4726 </p></div><div id="ftn.idp8394672" class="footnote"><p><a href="#idp8394672" class="para"><sup class="para">[116] </sup></a>
4727
4728 Doug Herrick, <span class="quote">«<span class="quote">Toward a National Film Collection: Motion Pictures at
4729 the Library of Congress,</span>»</span> <em class="citetitle">Film Library Quarterly</em> 13 nos. 2&#8211;3
4730 (1980): 5; Anthony Slide, <em class="citetitle">Nitrate Won't Wait: A History of Film
4731 Preservation in the United States</em> (Jefferson, N.C.: McFarland &amp;
4732 Co., 1992), 36.
4733 </p></div><div id="ftn.idp8416320" class="footnote"><p><a href="#idp8416320" class="para"><sup class="para">[117] </sup></a>
4734
4735 <a class="indexterm" name="idp8417056"></a>
4736 Dave Barns, <span class="quote">«<span class="quote">Fledgling Career in Antique Books: Woodstock Landlord,
4737 Bar Owner Starts a New Chapter by Adopting Business,</span>»</span> <em class="citetitle">Chicago Tribune</em>,
4738 5 September 1997, at Metro Lake 1L. Of books published between 1927
4739 and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese,
4740 <span class="quote">«<span class="quote">The First Sale Doctrine in the Era of Digital Networks,</span>»</span> <em class="citetitle">Boston
4741 College Law Review</em> 44 (2003): 593 n. 51.
4742 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="property-i"></a>Chapter 10. <span class="quote">«<span class="quote">Property</span>»</span></h2></div></div></div><a class="indexterm" name="idp8436512"></a><a class="indexterm" name="idp8437328"></a><p>
4743 <span class="strong"><strong>Jack Valenti</strong></span> has been the president
4744 of the Motion Picture Association of America since 1966. He first came
4745 to Washington, D.C., with Lyndon Johnson's
4746 administration&#8212;literally. The famous picture of Johnson's
4747 swearing-in on Air Force One after the assassination of President
4748 Kennedy has Valenti in the background. In his almost forty years of
4749 running the MPAA, Valenti has established himself as perhaps the most
4750 prominent and effective lobbyist in Washington.
4751 </p><a class="indexterm" name="idp8439088"></a><a class="indexterm" name="idp8440512"></a><a class="indexterm" name="idp8441344"></a><a class="indexterm" name="idp8442176"></a><a class="indexterm" name="idp8442992"></a><a class="indexterm" name="idp8443808"></a><a class="indexterm" name="idp8444624"></a><p>
4752 The MPAA is the American branch of the international Motion Picture
4753 Association. It was formed in 1922 as a trade association whose goal
4754 was to defend American movies against increasing domestic criticism.
4755 The organization now represents not only filmmakers but producers and
4756 distributors of entertainment for television, video, and cable. Its
4757 board is made up of the chairmen and presidents of the seven major
4758 producers and distributors of motion picture and television programs
4759 in the United States: Walt Disney, Sony Pictures Entertainment, MGM,
4760 Paramount Pictures, Twentieth Century Fox, Universal Studios, and
4761 Warner Brothers.
4762 </p><p>
4763
4764 Valenti is only the third president of the MPAA. No president before
4765 him has had as much influence over that organization, or over
4766 Washington. As a Texan, Valenti has mastered the single most important
4767 political skill of a Southerner&#8212;the ability to appear simple and
4768 slow while hiding a lightning-fast intellect. To this day, Valenti
4769 plays the simple, humble man. But this Harvard MBA, and author of four
4770 books, who finished high school at the age of fifteen and flew more
4771 than fifty combat missions in World War II, is no Mr. Smith. When
4772 Valenti went to Washington, he mastered the city in a quintessentially
4773 Washingtonian way.
4774 </p><p>
4775 In defending artistic liberty and the freedom of speech that our
4776 culture depends upon, the MPAA has done important good. In crafting
4777 the MPAA rating system, it has probably avoided a great deal of
4778 speech-regulating harm. But there is an aspect to the organization's
4779 mission that is both the most radical and the most important. This is
4780 the organization's effort, epitomized in Valenti's every act, to
4781 redefine the meaning of <span class="quote">«<span class="quote">creative property.</span>»</span>
4782 </p><p>
4783 In 1982, Valenti's testimony to Congress captured the strategy
4784 perfectly:
4785 </p><div class="blockquote"><blockquote class="blockquote"><p>
4786 No matter the lengthy arguments made, no matter the charges and the
4787 counter-charges, no matter the tumult and the shouting, reasonable men
4788 and women will keep returning to the fundamental issue, the central
4789 theme which animates this entire debate: <span class="emphasis"><em>Creative property
4790 owners must be accorded the same rights and protection resident in all
4791 other property owners in the nation</em></span>. That is the issue.
4792 That is the question. And that is the rostrum on which this entire
4793 hearing and the debates to follow must rest.<a href="#ftn.idp8451024" class="footnote" name="idp8451024"><sup class="footnote">[118]</sup></a>
4794 </p></blockquote></div><p>
4795 The strategy of this rhetoric, like the strategy of most of Valenti's
4796 rhetoric, is brilliant and simple and brilliant because simple. The
4797 <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
4798 this:
4799
4800 <span class="quote">«<span class="quote">Creative property owners must be accorded the same rights and
4801 protections resident in all other property owners in the nation.</span>»</span>
4802 There are no second-class citizens, Valenti might have
4803 continued. There should be no second-class property owners.
4804 </p><p>
4805 This claim has an obvious and powerful intuitive pull. It is stated
4806 with such clarity as to make the idea as obvious as the notion that we
4807 use elections to pick presidents. But in fact, there is no more
4808 extreme a claim made by <span class="emphasis"><em>anyone</em></span> who is serious in
4809 this debate than this claim of Valenti's. Jack Valenti, however sweet
4810 and however brilliant, is perhaps the nation's foremost extremist when
4811 it comes to the nature and scope of <span class="quote">«<span class="quote">creative property.</span>»</span> His views
4812 have <span class="emphasis"><em>no</em></span> reasonable connection to our actual legal
4813 tradition, even if the subtle pull of his Texan charm has slowly
4814 redefined that tradition, at least in Washington.
4815 </p><p>
4816 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
4817 precise sense that lawyers are trained to understand,<a href="#ftn.idp8458352" class="footnote" name="idp8458352"><sup class="footnote">[119]</sup></a> it has never been the case, nor should it be, that
4818 <span class="quote">«<span class="quote">creative property owners</span>»</span> have been <span class="quote">«<span class="quote">accorded the same rights and
4819 protection resident in all other property owners.</span>»</span> Indeed, if creative
4820 property owners were given the same rights as all other property
4821 owners, that would effect a radical, and radically undesirable, change
4822 in our tradition.
4823 </p><p>
4824 Valenti knows this. But he speaks for an industry that cares squat for
4825 our tradition and the values it represents. He speaks for an industry
4826 that is instead fighting to restore the tradition that the British
4827 overturned in 1710. In the world that Valenti's changes would create,
4828 a powerful few would exercise powerful control over how our creative
4829 culture would develop.
4830 </p><p>
4831 I have two purposes in this chapter. The first is to convince you
4832 that, historically, Valenti's claim is absolutely wrong. The second is
4833 to convince you that it would be terribly wrong for us to reject our
4834 history.  We have always treated rights in creative property
4835 differently from the rights resident in all other property
4836 owners. They have never been the same. And they should never be the
4837 same, because, however counterintuitive this may seem, to make them
4838 the same would be to
4839
4840
4841 fundamentally weaken the opportunity for new creators to create.
4842 Creativity depends upon the owners of creativity having less than
4843 perfect control.
4844 </p><p>
4845 Organizations such as the MPAA, whose board includes the most powerful
4846 of the old guard, have little interest, their rhetoric
4847 notwithstanding, in assuring that the new can displace them. No
4848 organization does. No person does. (Ask me about tenure, for example.)
4849 But what's good for the MPAA is not necessarily good for America. A
4850 society that defends the ideals of free culture must preserve
4851 precisely the opportunity for new creativity to threaten the old.
4852 </p><p>
4853 <span class="strong"><strong>To get</strong></span> just a hint that there is
4854 something fundamentally wrong in Valenti's argument, we need look no
4855 further than the United States Constitution itself.
4856 </p><p>
4857 The framers of our Constitution loved <span class="quote">«<span class="quote">property.</span>»</span> Indeed, so strongly
4858 did they love property that they built into the Constitution an
4859 important requirement. If the government takes your property&#8212;if
4860 it condemns your house, or acquires a slice of land from your
4861 farm&#8212;it is required, under the Fifth Amendment's <span class="quote">«<span class="quote">Takings
4862 Clause,</span>»</span> to pay you <span class="quote">«<span class="quote">just compensation</span>»</span> for that taking. The
4863 Constitution thus guarantees that property is, in a certain sense,
4864 sacred. It cannot <span class="emphasis"><em>ever</em></span> be taken from the property
4865 owner unless the government pays for the privilege.
4866 </p><p>
4867 Yet the very same Constitution speaks very differently about what
4868 Valenti calls <span class="quote">«<span class="quote">creative property.</span>»</span> In the clause granting Congress the
4869 power to create <span class="quote">«<span class="quote">creative property,</span>»</span> the Constitution
4870 <span class="emphasis"><em>requires</em></span> that after a <span class="quote">«<span class="quote">limited time,</span>»</span> Congress
4871 take back the rights that it has granted and set the <span class="quote">«<span class="quote">creative
4872 property</span>»</span> free to the public domain. Yet when Congress does this, when
4873 the expiration of a copyright term <span class="quote">«<span class="quote">takes</span>»</span> your copyright and turns it
4874 over to the public domain, Congress does not have any obligation to
4875 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
4876 Constitution that requires compensation for your land
4877
4878 requires that you lose your <span class="quote">«<span class="quote">creative property</span>»</span> right without any
4879 compensation at all.
4880 </p><p>
4881 The Constitution thus on its face states that these two forms of
4882 property are not to be accorded the same rights. They are plainly to
4883 be treated differently. Valenti is therefore not just asking for a
4884 change in our tradition when he argues that creative-property owners
4885 should be accorded the same rights as every other property-right
4886 owner. He is effectively arguing for a change in our Constitution
4887 itself.
4888 </p><a class="indexterm" name="idxjeffersonthomas"></a><p>
4889 Arguing for a change in our Constitution is not necessarily wrong.
4890 There was much in our original Constitution that was plainly wrong.
4891 The Constitution of 1789 entrenched slavery; it left senators to be
4892 appointed rather than elected; it made it possible for the electoral
4893 college to produce a tie between the president and his own vice
4894 president (as it did in 1800). The framers were no doubt
4895 extraordinary, but I would be the first to admit that they made big
4896 mistakes. We have since rejected some of those mistakes; no doubt
4897 there could be others that we should reject as well. So my argument is
4898 not simply that because Jefferson did it, we should, too.
4899 </p><p>
4900 Instead, my argument is that because Jefferson did it, we should at
4901 least try to understand <span class="emphasis"><em>why</em></span>. Why did the framers,
4902 fanatical property types that they were, reject the claim that
4903 creative property be given the same rights as all other property? Why
4904 did they require that for creative property there must be a public
4905 domain?
4906 </p><a class="indexterm" name="idp8479648"></a><p>
4907 To answer this question, we need to get some perspective on the
4908 history of these <span class="quote">«<span class="quote">creative property</span>»</span> rights, and the control that they
4909 enabled.  Once we see clearly how differently these rights have been
4910 defined, we will be in a better position to ask the question that
4911 should be at the core of this war: Not <span class="emphasis"><em>whether</em></span>
4912 creative property should be protected, but how. Not
4913 <span class="emphasis"><em>whether</em></span> we will enforce the rights the law gives
4914 to creative-property owners, but what the particular mix of rights
4915 ought to be. Not <span class="emphasis"><em>whether</em></span> artists should be paid,
4916 but whether institutions designed to assure that artists get paid need
4917 also control how culture develops.
4918 </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>
4919
4920
4921 To answer these questions, we need a more general way to talk about
4922 how property is protected. More precisely, we need a more general way
4923 than the narrow language of the law allows. In <em class="citetitle">Code and Other Laws of
4924 Cyberspace</em>, I used a simple model to capture this more general
4925 perspective. For any particular right or regulation, this model asks
4926 how four different modalities of regulation interact to support or
4927 weaken the right or regulation. I represented it with this diagram:
4928 </p><div class="figure"><a name="fig-1331"></a><p class="title"><b>Figure 10.1. How four different modalities of regulation interact to support or weaken the right or regulation.</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%" alt="How four different modalities of regulation interact to support or weaken the right or regulation."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8495456"></a><p>
4929 At the center of this picture is a regulated dot: the individual or
4930 group that is the target of regulation, or the holder of a right. (In
4931 each case throughout, we can describe this either as regulation or as
4932 a right.  For simplicity's sake, I will speak only of regulations.)
4933 The ovals represent four ways in which the individual or group might
4934 be regulated&#8212; either constrained or, alternatively, enabled. Law
4935 is the most obvious constraint (to lawyers, at least). It constrains
4936 by threatening punishments after the fact if the rules set in advance
4937 are violated. So if, for example, you willfully infringe Madonna's
4938 copyright by copying a song from her latest CD and posting it on the
4939 Web, you can be punished
4940
4941 with a $150,000 fine. The fine is an ex post punishment for violating
4942 an ex ante rule. It is imposed by the state.
4943 <a class="indexterm" name="idp8497792"></a>
4944 </p><a class="indexterm" name="idp8498672"></a><p>
4945 Norms are a different kind of constraint. They, too, punish an
4946 individual for violating a rule. But the punishment of a norm is
4947 imposed by a community, not (or not only) by the state. There may be
4948 no law against spitting, but that doesn't mean you won't be punished
4949 if you spit on the ground while standing in line at a movie. The
4950 punishment might not be harsh, though depending upon the community, it
4951 could easily be more harsh than many of the punishments imposed by the
4952 state. The mark of the difference is not the severity of the rule, but
4953 the source of the enforcement.
4954 </p><a class="indexterm" name="idxmarketconstraints"></a><p>
4955 The market is a third type of constraint. Its constraint is effected
4956 through conditions: You can do X if you pay Y; you'll be paid M if you
4957 do N. These constraints are obviously not independent of law or
4958 norms&#8212;it is property law that defines what must be bought if it
4959 is to be taken legally; it is norms that say what is appropriately
4960 sold. But given a set of norms, and a background of property and
4961 contract law, the market imposes a simultaneous constraint upon how an
4962 individual or group might behave.
4963 </p><a class="indexterm" name="idp8502160"></a><p>
4964 Finally, and for the moment, perhaps, most mysteriously,
4965 <span class="quote">«<span class="quote">architecture</span>»</span>&#8212;the physical world as one finds it&#8212;is a
4966 constraint on behavior.  A fallen bridge might constrain your ability
4967 to get across a river. Railroad tracks might constrain the ability of
4968 a community to integrate its social life. As with the market,
4969 architecture does not effect its constraint through ex post
4970 punishments. Instead, also as with the market, architecture effects
4971 its constraint through simultaneous conditions. These conditions are
4972 imposed not by courts enforcing contracts, or by police punishing
4973 theft, but by nature, by <span class="quote">«<span class="quote">architecture.</span>»</span>  If a 500-pound boulder
4974 blocks your way, it is the law of gravity that enforces this
4975 constraint. If a $500 airplane ticket stands between you and a flight
4976 to New York, it is the market that enforces this constraint.
4977 </p><a class="indexterm" name="idp8505792"></a><a class="indexterm" name="idp8507120"></a><a class="indexterm" name="idp8508448"></a><a class="indexterm" name="idxlawasconstraintmodality2"></a><p>
4978
4979
4980 So the first point about these four modalities of regulation is
4981 obvious: They interact. Restrictions imposed by one might be
4982 reinforced by another. Or restrictions imposed by one might be
4983 undermined by another.
4984 </p><p>
4985 The second point follows directly: If we want to understand the
4986 effective freedom that anyone has at a given moment to do any
4987 particular thing, we have to consider how these four modalities
4988 interact.  Whether or not there are other constraints (there may well
4989 be; my claim is not about comprehensiveness), these four are among the
4990 most significant, and any regulator (whether controlling or freeing)
4991 must consider how these four in particular interact.
4992 </p><a class="indexterm" name="idp8513296"></a><a class="indexterm" name="idp8514112"></a><a class="indexterm" name="idp8514928"></a><a class="indexterm" name="idxdrivingspeedconstraintson"></a><a class="indexterm" name="idxspeedingconstraintson"></a><p>
4993 So, for example, consider the <span class="quote">«<span class="quote">freedom</span>»</span> to drive a car at a high
4994 speed. That freedom is in part restricted by laws: speed limits that
4995 say how fast you can drive in particular places at particular
4996 times. It is in part restricted by architecture: speed bumps, for
4997 example, slow most rational drivers; governors in buses, as another
4998 example, set the maximum rate at which the driver can drive. The
4999 freedom is in part restricted by the market: Fuel efficiency drops as
5000 speed increases, thus the price of gasoline indirectly constrains
5001 speed. And finally, the norms of a community may or may not constrain
5002 the freedom to speed. Drive at 50 mph by a school in your own
5003 neighborhood and you're likely to be punished by the neighbors. The
5004 same norm wouldn't be as effective in a different town, or at night.
5005 </p><p>
5006 The final point about this simple model should also be fairly clear:
5007 While these four modalities are analytically independent, law has a
5008 special role in affecting the three.<a href="#ftn.idp8520960" class="footnote" name="idp8520960"><sup class="footnote">[120]</sup></a>
5009 The law, in other words, sometimes operates to increase or decrease
5010 the constraint of a particular modality.  Thus, the law might be used
5011 to increase taxes on gasoline, so as to increase the incentives to
5012 drive more slowly. The law might be used to mandate more speed bumps,
5013 so as to increase the difficulty of driving rapidly. The law might be
5014 used to fund ads that stigmatize reckless driving. Or the law might be
5015 used to require that other laws be more
5016
5017 strict&#8212;a federal requirement that states decrease the speed
5018 limit, for example&#8212;so as to decrease the attractiveness of fast
5019 driving.
5020 </p><a class="indexterm" name="idp8524656"></a><a class="indexterm" name="idp8525984"></a><div class="figure"><a name="fig-1361"></a><p class="title"><b>Figure 10.2. Law has a special role in affecting the three.</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%" alt="Law has a special role in affecting the three."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8529840"></a><p>
5021 These constraints can thus change, and they can be changed. To
5022 understand the effective protection of liberty or protection of
5023 property at any particular moment, we must track these changes over
5024 time. A restriction imposed by one modality might be erased by
5025 another. A freedom enabled by one modality might be displaced by
5026 another.<a href="#ftn.idp8531296" class="footnote" name="idp8531296"><sup class="footnote">[121]</sup></a>
5027 </p><a class="indexterm" name="idp8540096"></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>
5028 The most obvious point that this model reveals is just why, or just
5029 how, Hollywood is right. The copyright warriors have rallied Congress
5030 and the courts to defend copyright. This model helps us see why that
5031 rallying makes sense.
5032 </p><p>
5033 Let's say this is the picture of copyright's regulation before the
5034 Internet:
5035 </p><div class="figure"><a name="fig-1371"></a><p class="title"><b>Figure 10.3. Copyright's regulation before the Internet.</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%" alt="Copyright's regulation before the Internet."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idxarchitectureconstrainteffectedthrough"></a><a class="indexterm" name="idp8549696"></a><a class="indexterm" name="idxnormsregulatoryinfluenceof2"></a><p>
5036
5037 There is balance between law, norms, market, and architecture. The law
5038 limits the ability to copy and share content, by imposing penalties on
5039 those who copy and share content. Those penalties are reinforced by
5040 technologies that make it hard to copy and share content
5041 (architecture) and expensive to copy and share content
5042 (market). Finally, those penalties are mitigated by norms we all
5043 recognize&#8212;kids, for example, taping other kids' records. These
5044 uses of copyrighted material may well be infringement, but the norms
5045 of our society (before the Internet, at least) had no problem with
5046 this form of infringement.
5047 </p><a class="indexterm" name="idxinternetcopyrightregulatorybalancelostwith"></a><a class="indexterm" name="idp8555728"></a><a class="indexterm" name="idp8556864"></a><a class="indexterm" name="idp8557680"></a><p>
5048 Enter the Internet, or, more precisely, technologies such as MP3s and
5049 p2p sharing. Now the constraint of architecture changes dramatically,
5050 as does the constraint of the market. And as both the market and
5051 architecture relax the regulation of copyright, norms pile on. The
5052 happy balance (for the warriors, at least) of life before the Internet
5053 becomes an effective state of anarchy after the Internet.
5054 </p><a class="indexterm" name="idp8559296"></a><a class="indexterm" name="idp8560672"></a><a class="indexterm" name="idp8562000"></a><p>
5055 Thus the sense of, and justification for, the warriors' response.
5056 Technology has changed, the warriors say, and the effect of this
5057 change, when ramified through the market and norms, is that a balance
5058 of protection for the copyright owners' rights has been lost. This is
5059 Iraq
5060
5061 after the fall of Saddam, but this time no government is justifying the
5062 looting that results.
5063 </p><div class="figure"><a name="fig-1381"></a><p class="title"><b>Figure 10.4. effective state of anarchy after the Internet.</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%" alt="effective state of anarchy after the Internet."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8566720"></a><a class="indexterm" name="idxregulationasestablishmentprotectionism"></a><p>
5064 Neither this analysis nor the conclusions that follow are new to the
5065 warriors. Indeed, in a <span class="quote">«<span class="quote">White Paper</span>»</span> prepared by the Commerce
5066 Department (one heavily influenced by the copyright warriors) in 1995,
5067 this mix of regulatory modalities had already been identified and the
5068 strategy to respond already mapped. In response to the changes the
5069 Internet had effected, the White Paper argued (1) Congress should
5070 strengthen intellectual property law, (2) businesses should adopt
5071 innovative marketing techniques, (3) technologists should push to
5072 develop code to protect copyrighted material, and (4) educators should
5073 educate kids to better protect copyright.
5074 </p><a class="indexterm" name="idp8571024"></a><a class="indexterm" name="idp8572400"></a><a class="indexterm" name="idp8573728"></a><a class="indexterm" name="idp8574544"></a><p>
5075 This mixed strategy is just what copyright needed&#8212;if it was to
5076 preserve the particular balance that existed before the change induced
5077 by the Internet. And it's just what we should expect the content
5078 industry to push for. It is as American as apple pie to consider the
5079 happy life you have as an entitlement, and to look to the law to
5080 protect it if something comes along to change that happy
5081 life. Homeowners living in a
5082
5083
5084 flood plain have no hesitation appealing to the government to rebuild
5085 (and rebuild again) when a flood (architecture) wipes away their
5086 property (law). Farmers have no hesitation appealing to the government
5087 to bail them out when a virus (architecture) devastates their
5088 crop. Unions have no hesitation appealing to the government to bail
5089 them out when imports (market) wipe out the U.S. steel industry.
5090 </p><a class="indexterm" name="idp8576912"></a><a class="indexterm" name="idp8578160"></a><a class="indexterm" name="idp8579488"></a><p>
5091 Thus, there's nothing wrong or surprising in the content industry's
5092 campaign to protect itself from the harmful consequences of a
5093 technological innovation. And I would be the last person to argue that
5094 the changing technology of the Internet has not had a profound effect
5095 on the content industry's way of doing business, or as John Seely
5096 Brown describes it, its <span class="quote">«<span class="quote">architecture of revenue.</span>»</span>
5097 </p><a class="indexterm" name="idp8581504"></a><a class="indexterm" name="idp8582320"></a><a class="indexterm" name="idp8583424"></a><a class="indexterm" name="idp8584240"></a><a class="indexterm" name="idp8585056"></a><a class="indexterm" name="idp8585872"></a><a class="indexterm" name="idp8586688"></a><a class="indexterm" name="idp8587504"></a><p>
5098 But just because a particular interest asks for government support, it
5099 doesn't follow that support should be granted. And just because
5100 technology has weakened a particular way of doing business, it doesn't
5101 follow that the government should intervene to support that old way of
5102 doing business. Kodak, for example, has lost perhaps as much as 20
5103 percent of their traditional film market to the emerging technologies
5104 of digital cameras.<a href="#ftn.idp8589024" class="footnote" name="idp8589024"><sup class="footnote">[122]</sup></a>
5105
5106 Does anyone believe the government should ban digital cameras just to
5107 support Kodak? Highways have weakened the freight business for
5108 railroads. Does anyone think we should ban trucks from roads
5109 <span class="emphasis"><em>for the purpose of</em></span> protecting the railroads?
5110 Closer to the subject of this book, remote channel changers have
5111 weakened the <span class="quote">«<span class="quote">stickiness</span>»</span> of television advertising (if a boring
5112 commercial comes on the TV, the remote makes it easy to surf), and it
5113 may well be that this change has weakened the television advertising
5114 market. But does anyone believe we should regulate remotes to
5115 reinforce commercial television?  (Maybe by limiting them to function
5116 only once a second, or to switch to only ten channels within an hour?)
5117 </p><a class="indexterm" name="idxfreemarkettechnologicalchangesin"></a><a class="indexterm" name="idp8595600"></a><a class="indexterm" name="idp8596416"></a><a class="indexterm" name="idp8597232"></a><a class="indexterm" name="idp8598336"></a><a class="indexterm" name="idp8599152"></a><a class="indexterm" name="idp8599968"></a><p>
5118 The obvious answer to these obviously rhetorical questions is no.
5119 In a free society, with a free market, supported by free enterprise and
5120 free trade, the government's role is not to support one way of doing
5121
5122 business against others. Its role is not to pick winners and protect
5123 them against loss. If the government did this generally, then we would
5124 never have any progress. As Microsoft chairman Bill Gates wrote in
5125 1991, in a memo criticizing software patents, <span class="quote">«<span class="quote">established companies
5126 have an interest in excluding future competitors.</span>»</span><a href="#ftn.idp8602160" class="footnote" name="idp8602160"><sup class="footnote">[123]</sup></a>
5127 And relative to a
5128 startup, established companies also have the means. (Think RCA and
5129 FM radio.) A world in which competitors with new ideas must fight
5130 not only the market but also the government is a world in which
5131 competitors with new ideas will not succeed. It is a world of stasis and
5132 increasingly concentrated stagnation. It is the Soviet Union under
5133 Brezhnev.
5134 </p><p>
5135 Thus, while it is understandable for industries threatened with new
5136 technologies that change the way they do business to look to the
5137 government for protection, it is the special duty of policy makers to
5138 guarantee that that protection not become a deterrent to progress. It
5139 is the duty of policy makers, in other words, to assure that the
5140 changes they create, in response to the request of those hurt by
5141 changing technology, are changes that preserve the incentives and
5142 opportunities for innovation and change.
5143 </p><a class="indexterm" name="idp8604912"></a><a class="indexterm" name="idp8605984"></a><a class="indexterm" name="idp8606800"></a><p>
5144 In the context of laws regulating speech&#8212;which include,
5145 obviously, copyright law&#8212;that duty is even stronger. When the
5146 industry complaining about changing technologies is asking Congress to
5147 respond in a way that burdens speech and creativity, policy makers
5148 should be especially wary of the request. It is always a bad deal for
5149 the government to get into the business of regulating speech
5150 markets. The risks and dangers of that game are precisely why our
5151 framers created the First Amendment to our Constitution: <span class="quote">«<span class="quote">Congress
5152 shall make no law &#8230;  abridging the freedom of speech.</span>»</span> So when
5153 Congress is being asked to pass laws that would <span class="quote">«<span class="quote">abridge</span>»</span> the freedom
5154 of speech, it should ask&#8212; carefully&#8212;whether such
5155 regulation is justified.
5156 </p><a class="indexterm" name="idp8610048"></a><a class="indexterm" name="idp8611344"></a><p>
5157 My argument just now, however, has nothing to do with whether
5158
5159 the changes that are being pushed by the copyright warriors are
5160 <span class="quote">«<span class="quote">justified.</span>»</span>  My argument is about their effect. For before we get to
5161 the question of justification, a hard question that depends a great
5162 deal upon your values, we should first ask whether we understand the
5163 effect of the changes the content industry wants.
5164 </p><p>
5165 Here's the metaphor that will capture the argument to follow.
5166 </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>
5167 In 1873, the chemical DDT was first synthesized. In 1948, Swiss
5168 chemist Paul Hermann Müller won the Nobel Prize for his work
5169 demonstrating the insecticidal properties of DDT. By the 1950s, the
5170 insecticide was widely used around the world to kill disease-carrying
5171 pests. It was also used to increase farm production.
5172 </p><p>
5173 No one doubts that killing disease-carrying pests or increasing crop
5174 production is a good thing. No one doubts that the work of Müller was
5175 important and valuable and probably saved lives, possibly millions.
5176 </p><a class="indexterm" name="idp8622864"></a><a class="indexterm" name="idp8623680"></a><a class="indexterm" name="idxenvironmentalism"></a><p>
5177 But in 1962, Rachel Carson published <em class="citetitle">Silent Spring</em>, which argued that
5178 DDT, whatever its primary benefits, was also having unintended
5179 environmental consequences. Birds were losing the ability to
5180 reproduce.  Whole chains of the ecology were being destroyed.
5181 </p><p>
5182 No one set out to destroy the environment. Paul Müller certainly did
5183 not aim to harm any birds. But the effort to solve one set of problems
5184 produced another set which, in the view of some, was far worse than
5185 the problems that were originally attacked. Or more accurately, the
5186 problems DDT caused were worse than the problems it solved, at least
5187 when considering the other, more environmentally friendly ways to
5188 solve the problems that DDT was meant to solve.
5189 </p><a class="indexterm" name="idp8628240"></a><a class="indexterm" name="idp8629552"></a><a class="indexterm" name="idxcopyrightlawinnovativefreedombalancedwithfaircompensationin2"></a><p>
5190 It is to this image precisely that Duke University law professor James
5191 Boyle appeals when he argues that we need an <span class="quote">«<span class="quote">environmentalism</span>»</span> for
5192 culture.<a href="#ftn.idp8633264" class="footnote" name="idp8633264"><sup class="footnote">[124]</sup></a>
5193 His point, and the point I want to develop in the balance of this
5194 chapter, is not that the aims of copyright are flawed. Or that authors
5195 should not be paid for their work. Or that music should be given away
5196 <span class="quote">«<span class="quote">for free.</span>»</span> The point is that some of the ways in which we might
5197 protect authors will have unintended consequences for the cultural
5198 environment, much like DDT had for the natural environment. And just
5199
5200 as criticism of DDT is not an endorsement of malaria or an attack on
5201 farmers, so, too, is criticism of one particular set of regulations
5202 protecting copyright not an endorsement of anarchy or an attack on
5203 authors.  It is an environment of creativity that we seek, and we
5204 should be aware of our actions' effects on the environment.
5205 </p><a class="indexterm" name="idp8636624"></a><p>
5206 My argument, in the balance of this chapter, tries to map exactly
5207 this effect. No doubt the technology of the Internet has had a dramatic
5208 effect on the ability of copyright owners to protect their content. But
5209 there should also be little doubt that when you add together the
5210 changes in copyright law over time, plus the change in technology that
5211 the Internet is undergoing just now, the net effect of these changes will
5212 not be only that copyrighted work is effectively protected. Also, and
5213 generally missed, the net effect of this massive increase in protection
5214 will be devastating to the environment for creativity.
5215 </p><a class="indexterm" name="idp8638864"></a><p>
5216 In a line: To kill a gnat, we are spraying DDT with consequences
5217 for free culture that will be far more devastating than that this gnat will
5218 be lost.
5219 </p><a class="indexterm" name="idp8640832"></a><a class="indexterm" name="idp8642080"></a><a class="indexterm" name="idp8643520"></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="idp8646048"></a><a class="indexterm" name="idxconstitutionuscopyrightpurposeestablishedin"></a><a class="indexterm" name="idxconstitutionusprogressclauseof"></a><a class="indexterm" name="idp8651024"></a><a class="indexterm" name="idp8652096"></a><a class="indexterm" name="idxcreativepropertyconstitutionaltraditionon2"></a><a class="indexterm" name="idxprogressclause"></a><a class="indexterm" name="idp8656656"></a><p>
5220 America copied English copyright law. Actually, we copied and improved
5221 English copyright law. Our Constitution makes the purpose of <span class="quote">«<span class="quote">creative
5222 property</span>»</span> rights clear; its express limitations reinforce the English
5223 aim to avoid overly powerful publishers.
5224 </p><a class="indexterm" name="idxcongressusinconstitutionalprogressclause"></a><p>
5225 The power to establish <span class="quote">«<span class="quote">creative property</span>»</span> rights is granted to
5226 Congress in a way that, for our Constitution, at least, is very
5227 odd. Article I, section 8, clause 8 of our Constitution states that:
5228 </p><p>
5229 Congress has the power to promote the Progress of Science and
5230 useful Arts, by securing for limited Times to Authors and Inventors
5231 the exclusive Right to their respective Writings and Discoveries.
5232
5233
5234 We can call this the <span class="quote">«<span class="quote">Progress Clause,</span>»</span> for notice what this clause
5235 does not say. It does not say Congress has the power to grant
5236 <span class="quote">«<span class="quote">creative property rights.</span>»</span> It says that Congress has the power
5237 <span class="emphasis"><em>to promote progress</em></span>. The grant of power is its
5238 purpose, and its purpose is a public one, not the purpose of enriching
5239 publishers, nor even primarily the purpose of rewarding authors.
5240 </p><a class="indexterm" name="idp8664288"></a><a class="indexterm" name="idxcopyrightlawasprotectionofcreators"></a><a class="indexterm" name="idxcopyrightlawhistoryofamerican"></a><p>
5241 The Progress Clause expressly limits the term of copyrights. As we saw
5242 in chapter <a class="xref" href="#founders" title="Chapter 6. Founders">6</a>,
5243 the English limited the term of copyright so as to assure that a few
5244 would not exercise disproportionate control over culture by exercising
5245 disproportionate control over publishing. We can assume the framers
5246 followed the English for a similar purpose. Indeed, unlike the
5247 English, the framers reinforced that objective, by requiring that
5248 copyrights extend <span class="quote">«<span class="quote">to Authors</span>»</span> only.
5249 </p><a class="indexterm" name="idp8671616"></a><a class="indexterm" name="idp8672432"></a><a class="indexterm" name="idp8673552"></a><p>
5250 The design of the Progress Clause reflects something about the
5251 Constitution's design in general. To avoid a problem, the framers
5252 built structure. To prevent the concentrated power of publishers, they
5253 built a structure that kept copyrights away from publishers and kept
5254 them short. To prevent the concentrated power of a church, they banned
5255 the federal government from establishing a church. To prevent
5256 concentrating power in the federal government, they built structures
5257 to reinforce the power of the states&#8212;including the Senate, whose
5258 members were at the time selected by the states, and an electoral
5259 college, also selected by the states, to select the president. In each
5260 case, a <span class="emphasis"><em>structure</em></span> built checks and balances into
5261 the constitutional frame, structured to prevent otherwise inevitable
5262 concentrations of power.
5263 </p><a class="indexterm" name="idp8676016"></a><a class="indexterm" name="idp8677344"></a><p>
5264 I doubt the framers would recognize the regulation we call <span class="quote">«<span class="quote">copyright</span>»</span>
5265 today. The scope of that regulation is far beyond anything they ever
5266 considered. To begin to understand what they did, we need to put our
5267 <span class="quote">«<span class="quote">copyright</span>»</span> in context: We need to see how it has changed in the 210
5268 years since they first struck its design.
5269 </p><a class="indexterm" name="idp8680096"></a><a class="indexterm" name="idp8681472"></a><a class="indexterm" name="idp8682848"></a><a class="indexterm" name="idp8684176"></a><p>
5270 Some of these changes come from the law: some in light of changes
5271 in technology, and some in light of changes in technology given a
5272
5273 particular concentration of market power. In terms of our model, we
5274 started here:
5275 </p><div class="figure"><a name="fig-1441"></a><p class="title"><b>Figure 10.5. Copyright's regulation before the Internet.</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%" alt="Copyright's regulation before the Internet."></td></tr></table></div></div></div><br class="figure-break"><p>
5276 We will end here:
5277 </p><div class="figure"><a name="fig-1442"></a><p class="title"><b>Figure 10.6. <span class="quote">«<span class="quote">Copyright</span>»</span> today.</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%" alt="«Copyright» today."></td></tr></table></div></div></div><br class="figure-break"><p>
5278 Let me explain how.
5279
5280 </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="idp8698912"></a><a class="indexterm" name="idxpublicdomainbalanceofuscontentin"></a><p>
5281 When the first Congress enacted laws to protect creative property, it
5282 faced the same uncertainty about the status of creative property that
5283 the English had confronted in 1774. Many states had passed laws
5284 protecting creative property, and some believed that these laws simply
5285 supplemented common law rights that already protected creative
5286 authorship.<a href="#ftn.idp8702512" class="footnote" name="idp8702512"><sup class="footnote">[125]</sup></a>
5287 This meant that there was no guaranteed public domain in the United
5288 States in 1790. If copyrights were protected by the common law, then
5289 there was no simple way to know whether a work published in the United
5290 States was controlled or free. Just as in England, this lingering
5291 uncertainty would make it hard for publishers to rely upon a public
5292 domain to reprint and distribute works.
5293 </p><a class="indexterm" name="idp8706272"></a><a class="indexterm" name="idxlawfederalvsstate"></a><p>
5294 That uncertainty ended after Congress passed legislation granting
5295 copyrights. Because federal law overrides any contrary state law,
5296 federal protections for copyrighted works displaced any state law
5297 protections.  Just as in England the Statute of Anne eventually meant
5298 that the copyrights for all English works expired, a federal statute
5299 meant that any state copyrights expired as well.
5300 </p><a class="indexterm" name="idxcopyrightrenewabilityof"></a><p>
5301 In 1790, Congress enacted the first copyright law. It created a
5302 federal copyright and secured that copyright for fourteen years. If
5303 the author was alive at the end of that fourteen years, then he could
5304 opt to renew the copyright for another fourteen years. If he did not
5305 renew the copyright, his work passed into the public domain.
5306 </p><a class="indexterm" name="idp8712144"></a><p>
5307 While there were many works created in the United States in the first
5308 ten years of the Republic, only 5 percent of the works were actually
5309 registered under the federal copyright regime. Of all the work created
5310 in the United States both before 1790 and from 1790 through 1800, 95
5311 percent immediately passed into the public domain; the balance would
5312 pass into the pubic domain within twenty-eight years at most, and more
5313 likely within fourteen years.<a href="#ftn.idp8714144" class="footnote" name="idp8714144"><sup class="footnote">[126]</sup></a>
5314 </p><a class="indexterm" name="idp8718320"></a><a class="indexterm" name="idp8719536"></a><p>
5315 This system of renewal was a crucial part of the American system
5316 of copyright. It assured that the maximum terms of copyright would be
5317
5318 granted only for works where they were wanted. After the initial term
5319 of fourteen years, if it wasn't worth it to an author to renew his
5320 copyright, then it wasn't worth it to society to insist on the
5321 copyright, either.
5322 </p><p>
5323 Fourteen years may not seem long to us, but for the vast majority of
5324 copyright owners at that time, it was long enough: Only a small
5325 minority of them renewed their copyright after fourteen years; the
5326 balance allowed their work to pass into the public
5327 domain.<a href="#ftn.idp8722480" class="footnote" name="idp8722480"><sup class="footnote">[127]</sup></a>
5328 </p><a class="indexterm" name="idp8725648"></a><a class="indexterm" name="idp8726976"></a><a class="indexterm" name="idp8728080"></a><p>
5329 Even today, this structure would make sense. Most creative work
5330 has an actual commercial life of just a couple of years. Most books fall
5331 out of print after one year.<a href="#ftn.idp8729616" class="footnote" name="idp8729616"><sup class="footnote">[128]</sup></a> When that happens, the
5332 used books are traded free of copyright regulation. Thus the books are
5333 no longer <span class="emphasis"><em>effectively</em></span> controlled by
5334 copyright. The only practical commercial use of the books at that time
5335 is to sell the books as used books; that use&#8212;because it does not
5336 involve publication&#8212;is effectively free.
5337 </p><a class="indexterm" name="idxcongressusoncopyrightlaws6"></a><a class="indexterm" name="idxcongressuscopyrighttermsextendedby"></a><a class="indexterm" name="idxcopyrightlawtermextensionsin"></a><p>
5338 In the first hundred years of the Republic, the term of copyright was
5339 changed once. In 1831, the term was increased from a maximum of 28
5340 years to a maximum of 42 by increasing the initial term of copyright
5341 from 14 years to 28 years. In the next fifty years of the Republic,
5342 the term increased once again. In 1909, Congress extended the renewal
5343 term of 14 years to 28 years, setting a maximum term of 56 years.
5344 </p><a class="indexterm" name="idxsonnybonocopyrighttermextensionactctea"></a><a class="indexterm" name="idxpublicdomainfuturepatentsvsfuturecopyrightsin"></a><p>
5345 Then, beginning in 1962, Congress started a practice that has defined
5346 copyright law since. Eleven times in the last forty years, Congress
5347 has extended the terms of existing copyrights; twice in those forty
5348 years, Congress extended the term of future copyrights. Initially, the
5349 extensions of existing copyrights were short, a mere one to two years.
5350 In 1976, Congress extended all existing copyrights by nineteen years.
5351 And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress
5352 extended the term of existing and future copyrights by twenty years.
5353 </p><a class="indexterm" name="idp8742240"></a><p>
5354 The effect of these extensions is simply to toll, or delay, the passing
5355 of works into the public domain. This latest extension means that the
5356 public domain will have been tolled for thirty-nine out of fifty-five
5357 years, or 70 percent of the time since 1962. Thus, in the twenty years
5358
5359
5360 after the Sonny Bono Act, while one million patents will pass into the
5361 public domain, zero copyrights will pass into the public domain by virtue
5362 of the expiration of a copyright term.
5363 </p><a class="indexterm" name="idp8744560"></a><p>
5364 The effect of these extensions has been exacerbated by another,
5365 little-noticed change in the copyright law. Remember I said that the
5366 framers established a two-part copyright regime, requiring a copyright
5367 owner to renew his copyright after an initial term. The requirement of
5368 renewal meant that works that no longer needed copyright protection
5369 would pass more quickly into the public domain. The works remaining
5370 under protection would be those that had some continuing commercial
5371 value.
5372 </p><a class="indexterm" name="idp8746720"></a><a class="indexterm" name="idp8747504"></a><a class="indexterm" name="idp8748624"></a><p>
5373 The United States abandoned this sensible system in 1976. For
5374 all works created after 1978, there was only one copyright term&#8212;the
5375 maximum term. For <span class="quote">«<span class="quote">natural</span>»</span> authors, that term was life plus fifty
5376 years. For corporations, the term was seventy-five years. Then, in 1992,
5377 Congress abandoned the renewal requirement for all works created
5378 before 1978. All works still under copyright would be accorded the
5379 maximum term then available. After the Sonny Bono Act, that term
5380 was ninety-five years.
5381 </p><p>
5382 This change meant that American law no longer had an automatic way to
5383 assure that works that were no longer exploited passed into the public
5384 domain. And indeed, after these changes, it is unclear whether it is
5385 even possible to put works into the public domain. The public domain
5386 is orphaned by these changes in copyright law. Despite the requirement
5387 that terms be <span class="quote">«<span class="quote">limited,</span>»</span> we have no evidence that anything will limit
5388 them.
5389 </p><a class="indexterm" name="idp8752304"></a><a class="indexterm" name="idp8753696"></a><p>
5390 The effect of these changes on the average duration of copyright is
5391 dramatic. In 1973, more than 85 percent of copyright owners failed to
5392 renew their copyright. That meant that the average term of copyright
5393 in 1973 was just 32.2 years. Because of the elimination of the renewal
5394 requirement, the average term of copyright is now the maximum term.
5395 In thirty years, then, the average term has tripled, from 32.2 years to 95
5396 years.<a href="#ftn.idp8755792" class="footnote" name="idp8755792"><sup class="footnote">[129]</sup></a>
5397 </p><a class="indexterm" name="idp8757456"></a><a class="indexterm" name="idp8758704"></a><a class="indexterm" name="idp8760096"></a><a class="indexterm" name="idp8761440"></a><a class="indexterm" name="idp8762720"></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>
5398 The <span class="quote">«<span class="quote">scope</span>»</span> of a copyright is the range of rights granted by the law.
5399 The scope of American copyright has changed dramatically. Those
5400 changes are not necessarily bad. But we should understand the extent
5401 of the changes if we're to keep this debate in context.
5402 </p><a class="indexterm" name="idp8768400"></a><a class="indexterm" name="idxderivativeworkshistoricalshiftincopyrightcoverageof"></a><p>
5403 In 1790, that scope was very narrow. Copyright covered only <span class="quote">«<span class="quote">maps,
5404 charts, and books.</span>»</span> That means it didn't cover, for example, music or
5405 architecture. More significantly, the right granted by a copyright gave
5406 the author the exclusive right to <span class="quote">«<span class="quote">publish</span>»</span> copyrighted works. That
5407 means someone else violated the copyright only if he republished the
5408 work without the copyright owner's permission. Finally, the right granted
5409 by a copyright was an exclusive right to that particular book. The right
5410 did not extend to what lawyers call <span class="quote">«<span class="quote">derivative works.</span>»</span> It would not,
5411 therefore, interfere with the right of someone other than the author to
5412 translate a copyrighted book, or to adapt the story to a different form
5413 (such as a drama based on a published book).
5414 </p><p>
5415 This, too, has changed dramatically. While the contours of copyright
5416 today are extremely hard to describe simply, in general terms, the
5417 right covers practically any creative work that is reduced to a
5418 tangible form. It covers music as well as architecture, drama as well
5419 as computer programs. It gives the copyright owner of that creative
5420 work not only the exclusive right to <span class="quote">«<span class="quote">publish</span>»</span> the work, but also the
5421 exclusive right of control over any <span class="quote">«<span class="quote">copies</span>»</span> of that work. And most
5422 significant for our purposes here, the right gives the copyright owner
5423 control over not only his or her particular work, but also any
5424 <span class="quote">«<span class="quote">derivative work</span>»</span> that might grow out of the original work. In this
5425 way, the right covers more creative work, protects the creative work
5426 more broadly, and protects works that are based in a significant way
5427 on the initial creative work.
5428 </p><a class="indexterm" name="idxcopyrightmarkingof"></a><a class="indexterm" name="idxformalities"></a><a class="indexterm" name="idxcopyrightlawregistrationrequirementof"></a><p>
5429 At the same time that the scope of copyright has expanded, procedural
5430 limitations on the right have been relaxed. I've already described the
5431 complete removal of the renewal requirement in 1992. In addition
5432
5433 to the renewal requirement, for most of the history of American
5434 copyright law, there was a requirement that a work be registered
5435 before it could receive the protection of a copyright. There was also
5436 a requirement that any copyrighted work be marked either with that
5437 famous © or the word <span class="emphasis"><em>copyright</em></span>. And for most
5438 of the history of American copyright law, there was a requirement that
5439 works be deposited with the government before a copyright could be
5440 secured.
5441 </p><a class="indexterm" name="idp8783408"></a><p>
5442 The reason for the registration requirement was the sensible
5443 understanding that for most works, no copyright was required. Again,
5444 in the first ten years of the Republic, 95 percent of works eligible
5445 for copyright were never copyrighted. Thus, the rule reflected the
5446 norm: Most works apparently didn't need copyright, so registration
5447 narrowed the regulation of the law to the few that did. The same
5448 reasoning justified the requirement that a work be marked as
5449 copyrighted&#8212;that way it was easy to know whether a copyright was
5450 being claimed. The requirement that works be deposited was to assure
5451 that after the copyright expired, there would be a copy of the work
5452 somewhere so that it could be copied by others without locating the
5453 original author.
5454 </p><a class="indexterm" name="idp8785104"></a><p>
5455 All of these <span class="quote">«<span class="quote">formalities</span>»</span> were abolished in the American system when
5456 we decided to follow European copyright law. There is no requirement
5457 that you register a work to get a copyright; the copyright now is
5458 automatic; the copyright exists whether or not you mark your work with
5459 a ©; and the copyright exists whether or not you actually make a
5460 copy available for others to copy.
5461 </p><a class="indexterm" name="idp8788336"></a><a class="indexterm" name="idp8789936"></a><a class="indexterm" name="idp8791200"></a><p>
5462 Consider a practical example to understand the scope of these
5463 differences.
5464 </p><a class="indexterm" name="idxcopyrightact2"></a><p>
5465 If, in 1790, you wrote a book and you were one of the 5 percent who
5466 actually copyrighted that book, then the copyright law protected you
5467 against another publisher's taking your book and republishing it
5468 without your permission. The aim of the act was to regulate publishers
5469 so as to prevent that kind of unfair competition. In 1790, there were
5470 174 publishers in the United States.<a href="#ftn.idp8795120" class="footnote" name="idp8795120"><sup class="footnote">[130]</sup></a>
5471 The Copyright Act was thus a tiny
5472 regulation of a tiny proportion of a tiny part of the creative market in
5473 the United States&#8212;publishers.
5474 </p><a class="indexterm" name="idxcopyrightlawonrepublishingvstransformationoforiginalwork2"></a><a class="indexterm" name="idxderivativeworkspiracyvs3"></a><a class="indexterm" name="idxpiracyderivativeworkvs3"></a><p>
5475
5476 The act left other creators totally unregulated. If I copied your poem
5477 by hand, over and over again, as a way to learn it by heart, my act
5478 was totally unregulated by the 1790 act. If I took your novel and made
5479 a play based upon it, or if I translated it or abridged it, none of
5480 those activities were regulated by the original copyright act. These
5481 creative activities remained free, while the activities of publishers
5482 were restrained.
5483 </p><a class="indexterm" name="idp8804496"></a><p>
5484 Today the story is very different: If you write a book, your book is
5485 automatically protected. Indeed, not just your book. Every e-mail,
5486 every note to your spouse, every doodle, <span class="emphasis"><em>every</em></span>
5487 creative act that's reduced to a tangible form&#8212;all of this is
5488 automatically copyrighted.  There is no need to register or mark your
5489 work. The protection follows the creation, not the steps you take to
5490 protect it.
5491 </p><p>
5492 That protection gives you the right (subject to a narrow range of
5493 fair use exceptions) to control how others copy the work, whether they
5494 copy it to republish it or to share an excerpt.
5495 </p><p>
5496 That much is the obvious part. Any system of copyright would
5497                 control
5498 competing publishing. But there's a second part to the copyright of
5499 today that is not at all obvious. This is the protection of <span class="quote">«<span class="quote">derivative
5500 rights.</span>»</span> If you write a book, no one can make a movie out of your
5501 book without permission. No one can translate it without permission.
5502 CliffsNotes can't make an abridgment unless permission is granted. All
5503 of these derivative uses of your original work are controlled by the
5504 copyright holder. The copyright, in other words, is now not just an
5505                 exclusive
5506 right to your writings, but an exclusive right to your writings
5507 and a large proportion of the writings inspired by them.
5508 </p><a class="indexterm" name="idp8809120"></a><p>
5509 It is this derivative right that would seem most bizarre to our
5510 framers, though it has become second nature to us. Initially, this
5511                 expansion
5512 was created to deal with obvious evasions of a narrower
5513                 copyright.
5514 If I write a book, can you change one word and then claim a
5515 copyright in a new and different book? Obviously that would make a
5516 joke of the copyright, so the law was properly expanded to include
5517 those slight modifications as well as the verbatim original work.
5518 </p><p>
5519
5520 In preventing that joke, the law created an astonishing power
5521 within a free culture&#8212;at least, it's astonishing when you
5522 understand that the law applies not just to the commercial publisher
5523 but to anyone with a computer. I understand the wrong in duplicating
5524 and selling someone else's work. But whatever
5525 <span class="emphasis"><em>that</em></span> wrong is, transforming someone else's work
5526 is a different wrong. Some view transformation as no wrong at
5527 all&#8212;they believe that our law, as the framers penned it, should
5528 not protect derivative rights at all.<a href="#ftn.idp8812640" class="footnote" name="idp8812640"><sup class="footnote">[131]</sup></a>
5529 Whether or not you go that far, it seems
5530 plain that whatever wrong is involved is fundamentally different from
5531 the wrong of direct piracy.
5532 </p><p>
5533 Yet copyright law treats these two different wrongs in the same way. I
5534 can go to court and get an injunction against your pirating my book. I
5535 can go to court and get an injunction against your transformative use
5536 of my book.<a href="#ftn.idp8816864" class="footnote" name="idp8816864"><sup class="footnote">[132]</sup></a>
5537 These two different uses of my creative work are treated the same.
5538 </p><a class="indexterm" name="idp8820256"></a><a class="indexterm" name="idp8821648"></a><a class="indexterm" name="idp8822464"></a><p>
5539 This again may seem right to you. If I wrote a book, then why should
5540 you be able to write a movie that takes my story and makes money from
5541 it without paying me or crediting me? Or if Disney creates a creature
5542 called <span class="quote">«<span class="quote">Mickey Mouse,</span>»</span> why should you be able to make Mickey Mouse
5543 toys and be the one to trade on the value that Disney originally
5544 created?
5545 </p><p>
5546 These are good arguments, and, in general, my point is not that the
5547 derivative right is unjustified. My aim just now is much narrower:
5548 simply to make clear that this expansion is a significant change from
5549 the rights originally granted.
5550 </p><a class="indexterm" name="idp8825088"></a><a class="indexterm" name="idp8826288"></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>
5551 Whereas originally the law regulated only publishers, the change in
5552 copyright's scope means that the law today regulates publishers, users,
5553 and authors. It regulates them because all three are capable of making
5554 copies, and the core of the regulation of copyright law is copies.<a href="#ftn.idp8833360" class="footnote" name="idp8833360"><sup class="footnote">[133]</sup></a>
5555 </p><a class="indexterm" name="idp8837216"></a><a class="indexterm" name="idxcreativepropertyotherpropertyrightsvs2"></a><p>
5556
5557 <span class="quote">«<span class="quote">Copies.</span>»</span> That certainly sounds like the obvious thing for
5558 <span class="emphasis"><em>copy</em></span>right law to regulate. But as with Jack
5559 Valenti's argument at the start of this chapter, that <span class="quote">«<span class="quote">creative
5560 property</span>»</span> deserves the <span class="quote">«<span class="quote">same rights</span>»</span> as all other property, it is the
5561 <span class="emphasis"><em>obvious</em></span> that we need to be most careful
5562 about. For while it may be obvious that in the world before the
5563 Internet, copies were the obvious trigger for copyright law, upon
5564 reflection, it should be obvious that in the world with the Internet,
5565 copies should <span class="emphasis"><em>not</em></span> be the trigger for copyright
5566 law. More precisely, they should not <span class="emphasis"><em>always</em></span> be
5567 the trigger for copyright law.
5568 </p><a class="indexterm" name="idp8844496"></a><p>
5569 This is perhaps the central claim of this book, so let me take this
5570 very slowly so that the point is not easily missed. My claim is that the
5571 Internet should at least force us to rethink the conditions under which
5572 the law of copyright automatically applies,<a href="#ftn.idp8846352" class="footnote" name="idp8846352"><sup class="footnote">[134]</sup></a>
5573 because it is clear that the
5574 current reach of copyright was never contemplated, much less chosen,
5575 by the legislators who enacted copyright law.
5576 </p><a class="indexterm" name="idp8847808"></a><a class="indexterm" name="idp8848976"></a><p>
5577 We can see this point abstractly by beginning with this largely
5578 empty circle.
5579 </p><div class="figure"><a name="fig-1521"></a><p class="title"><b>Figure 10.7. All potential uses of a book.</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%" alt="All potential uses of a book."></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>
5580
5581 Think about a book in real space, and imagine this circle to represent
5582 all its potential <span class="emphasis"><em>uses</em></span>. Most of these uses are
5583 unregulated by copyright law, because the uses don't create a copy. If
5584 you read a book, that act is not regulated by copyright law. If you
5585 give someone the book, that act is not regulated by copyright law. If
5586 you resell a book, that act is not regulated (copyright law expressly
5587 states that after the first sale of a book, the copyright owner can
5588 impose no further conditions on the disposition of the book). If you
5589 sleep on the book or use it to hold up a lamp or let your puppy chew
5590 it up, those acts are not regulated by copyright law, because those
5591 acts do not make a copy.
5592 </p><div class="figure"><a name="fig-1531"></a><p class="title"><b>Figure 10.8. Examples of unregulated uses of a book.</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%" alt="Examples of unregulated uses of a book."></td></tr></table></div></div></div><br class="figure-break"><p>
5593 Obviously, however, some uses of a copyrighted book are regulated
5594 by copyright law. Republishing the book, for example, makes a copy. It
5595 is therefore regulated by copyright law. Indeed, this particular use stands
5596 at the core of this circle of possible uses of a copyrighted work. It is the
5597 paradigmatic use properly regulated by copyright regulation (see
5598 diagram in <a class="xref" href="#fig-1541" title="Figure 10.9. Republishing stands at the core of this circle of possible uses of a copyrighted work.">Figure 10.9, &#8220;Republishing stands at the core of this circle of possible uses of a copyrighted work.&#8221;</a>).
5599 </p><a class="indexterm" name="idp8870704"></a><a class="indexterm" name="idp8872064"></a><a class="indexterm" name="idxfairuse"></a><a class="indexterm" name="idxcopyrightlawfairuseand2"></a><p>
5600 Finally, there is a tiny sliver of otherwise regulated copying uses
5601 that remain unregulated because the law considers these <span class="quote">«<span class="quote">fair uses.</span>»</span>
5602 </p><div class="figure"><a name="fig-1541"></a><p class="title"><b>Figure 10.9. Republishing stands at the core of this circle of possible uses of a copyrighted work.</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%" alt="Republishing stands at the core of this circle of possible uses of a copyrighted work."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8880736"></a><a class="indexterm" name="idp8881840"></a><p>
5603 These are uses that themselves involve copying, but which the law
5604 treats as unregulated because public policy demands that they remain
5605 unregulated.  You are free to quote from this book, even in a review
5606 that is quite negative, without my permission, even though that
5607 quoting makes a copy. That copy would ordinarily give the copyright
5608 owner the exclusive right to say whether the copy is allowed or not,
5609 but the law denies the owner any exclusive right over such <span class="quote">«<span class="quote">fair uses</span>»</span>
5610 for public policy (and possibly First Amendment) reasons.
5611 </p><div class="figure"><a name="fig-1542"></a><p class="title"><b>Figure 10.10. Unregulated copying considered <span class="quote">«<span class="quote">fair uses.</span>»</span></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%" alt="Unregulated copying considered «fair uses.»"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idxcopyrightusagerestrictionsattachedto"></a><p>
5612
5613 In real space, then, the possible uses of a book are divided into three
5614 sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that
5615 are nonetheless deemed <span class="quote">«<span class="quote">fair</span>»</span> regardless of the copyright owner's views.
5616 </p><a class="indexterm" name="idp8890032"></a><a class="indexterm" name="idxbooksoninternet"></a><a class="indexterm" name="idxinternetbookson2"></a><a class="indexterm" name="idp8895024"></a><p>
5617 Enter the Internet&#8212;a distributed, digital network where every use
5618 of a copyrighted work produces a copy.<a href="#ftn.idp8896576" class="footnote" name="idp8896576"><sup class="footnote">[135]</sup></a>
5619 And because of this single, arbitrary feature of the design of a
5620 digital network, the scope of category 1 changes dramatically. Uses
5621 that before were presumptively unregulated are now presumptively
5622 regulated. No longer is there a set of presumptively unregulated uses
5623 that define a freedom associated with a copyrighted work. Instead,
5624 each use is now subject to the copyright, because each use also makes
5625 a copy&#8212;category 1 gets sucked into category 2. And those who
5626 would defend the unregulated uses of copyrighted work must look
5627 exclusively to category 3, fair uses, to bear the burden of this
5628 shift.
5629 </p><a class="indexterm" name="idp8898080"></a><a class="indexterm" name="idp8900144"></a><p>
5630 So let's be very specific to make this general point clear. Before the
5631 Internet, if you purchased a book and read it ten times, there would
5632 be no plausible <span class="emphasis"><em>copyright</em></span>-related argument that
5633 the copyright owner could make to control that use of her
5634 book. Copyright law would have nothing to say about whether you read
5635 the book once, ten times, or every
5636
5637 night before you went to bed. None of those instances of
5638 use&#8212;reading&#8212; could be regulated by copyright law because
5639 none of those uses produced a copy.
5640 </p><a class="indexterm" name="idxebooks"></a><a class="indexterm" name="idxderivativeworkstechnologicaldevelopmentsand"></a><p>
5641 But the same book as an e-book is effectively governed by a different
5642 set of rules. Now if the copyright owner says you may read the book
5643 only once or only once a month, then <span class="emphasis"><em>copyright
5644 law</em></span> would aid the copyright owner in exercising this degree
5645 of control, because of the accidental feature of copyright law that
5646 triggers its application upon there being a copy. Now if you read the
5647 book ten times and the license says you may read it only five times,
5648 then whenever you read the book (or any portion of it) beyond the
5649 fifth time, you are making a copy of the book contrary to the
5650 copyright owner's wish.
5651 </p><div class="figure"><a name="fig-1551"></a><p class="title"><b>Figure 10.11. Uses that before were presumptively unregulated are now presumptively regulated.</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%" alt="Uses that before were presumptively unregulated are now presumptively regulated."></td></tr></table></div></div></div><br class="figure-break"><p>
5652 There are some people who think this makes perfect sense. My aim
5653 just now is not to argue about whether it makes sense or not. My aim
5654 is only to make clear the change. Once you see this point, a few other
5655 points also become clear:
5656 </p><p>
5657 First, making category 1 disappear is not anything any policy maker
5658 ever intended. Congress did not think through the collapse of the
5659 presumptively unregulated uses of copyrighted works. There is no
5660 evidence at all that policy makers had this idea in mind when they
5661 allowed our policy here to shift. Unregulated uses were an important
5662 part of free culture before the Internet.
5663 </p><a class="indexterm" name="idxcopyrightlawonrepublishingvstransformationoforiginalwork3"></a><p>
5664 Second, this shift is especially troubling in the context of
5665 transformative uses of creative content. Again, we can all understand
5666 the wrong in commercial piracy. But the law now purports to regulate
5667 <span class="emphasis"><em>any</em></span> transformation you make of creative work
5668 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
5669 crimes. Tinkering with a story and releasing it to others exposes the
5670 tinkerer to at least a requirement of justification.  However
5671 troubling the expansion with respect to copying a particular work, it
5672 is extraordinarily troubling with respect to transformative uses of
5673 creative work.
5674 </p><a class="indexterm" name="idxfairuseinternetburdenson"></a><a class="indexterm" name="idxcopyrightlawfairuseand3"></a><a class="indexterm" name="idxderivativeworksfairusevs"></a><p>
5675 Third, this shift from category 1 to category 2 puts an extraordinary
5676
5677
5678 burden on category 3 (<span class="quote">«<span class="quote">fair use</span>»</span>) that fair use never before had to
5679 bear.  If a copyright owner now tried to control how many times I
5680 could read a book on-line, the natural response would be to argue that
5681 this is a violation of my fair use rights. But there has never been
5682 any litigation about whether I have a fair use right to read, because
5683 before the Internet, reading did not trigger the application of
5684 copyright law and hence the need for a fair use defense. The right to
5685 read was effectively protected before because reading was not
5686 regulated.
5687 </p><a class="indexterm" name="idp8923344"></a><a class="indexterm" name="idp8924624"></a><a class="indexterm" name="idp8926016"></a><a class="indexterm" name="idp8927344"></a><a class="indexterm" name="idp8928736"></a><p>
5688 This point about fair use is totally ignored, even by advocates for
5689 free culture. We have been cornered into arguing that our rights
5690 depend upon fair use&#8212;never even addressing the earlier question
5691 about the expansion in effective regulation. A thin protection
5692 grounded in fair use makes sense when the vast majority of uses are
5693 <span class="emphasis"><em>unregulated</em></span>. But when everything becomes
5694 presumptively regulated, then the protections of fair use are not
5695 enough.
5696 </p><a class="indexterm" name="idp8931488"></a><a class="indexterm" name="idp8932768"></a><a class="indexterm" name="idp8933968"></a><a class="indexterm" name="idp8935216"></a><a class="indexterm" name="idp8936464"></a><a class="indexterm" name="idp8937856"></a><a class="indexterm" name="idp8939136"></a><a class="indexterm" name="idxvideopipeline"></a><a class="indexterm" name="idxadvertising"></a><a class="indexterm" name="idxfilmindustrytraileradvertisementsof"></a><p>
5697 The case of Video Pipeline is a good example. Video Pipeline was
5698 in the business of making <span class="quote">«<span class="quote">trailer</span>»</span> advertisements for movies available
5699 to video stores. The video stores displayed the trailers as a way to sell
5700 videos. Video Pipeline got the trailers from the film distributors, put
5701 the trailers on tape, and sold the tapes to the retail stores.
5702 </p><a class="indexterm" name="idp8946592"></a><p>
5703 The company did this for about fifteen years. Then, in 1997, it began
5704 to think about the Internet as another way to distribute these
5705 previews.  The idea was to expand their <span class="quote">«<span class="quote">selling by sampling</span>»</span>
5706 technique by giving on-line stores the same ability to enable
5707 <span class="quote">«<span class="quote">browsing.</span>»</span> Just as in a bookstore you can read a few pages of a book
5708 before you buy the book, so, too, you would be able to sample a bit
5709 from the movie on-line before you bought it.
5710 </p><a class="indexterm" name="idxdisneyinc2"></a><a class="indexterm" name="idp8950576"></a><a class="indexterm" name="idxcopyrightlawcopiesascoreissueof3"></a><a class="indexterm" name="idxfairuselegalintimidationtacticsagainst2"></a><p>
5711 In 1998, Video Pipeline informed Disney and other film distributors
5712 that it intended to distribute the trailers through the Internet
5713 (rather than sending the tapes) to distributors of their videos. Two
5714 years later, Disney told Video Pipeline to stop. The owner of Video
5715
5716 Pipeline asked Disney to talk about the matter&#8212;he had built a
5717 business on distributing this content as a way to help sell Disney
5718 films; he had customers who depended upon his delivering this
5719 content. Disney would agree to talk only if Video Pipeline stopped the
5720 distribution immediately.  Video Pipeline thought it was within their
5721 <span class="quote">«<span class="quote">fair use</span>»</span> rights to distribute the clips as they had. So they filed a
5722 lawsuit to ask the court to declare that these rights were in fact
5723 their rights.
5724 </p><a class="indexterm" name="idp8957408"></a><a class="indexterm" name="idp8958656"></a><a class="indexterm" name="idxcopyrightusagerestrictionsattachedto2"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitswillfulinfringementfindingsin"></a><a class="indexterm" name="idp8963888"></a><p>
5725 Disney countersued&#8212;for $100 million in damages. Those damages
5726 were predicated upon a claim that Video Pipeline had <span class="quote">«<span class="quote">willfully
5727 infringed</span>»</span> on Disney's copyright. When a court makes a finding of
5728 willful infringement, it can award damages not on the basis of the
5729 actual harm to the copyright owner, but on the basis of an amount set
5730 in the statute. Because Video Pipeline had distributed seven hundred
5731 clips of Disney movies to enable video stores to sell copies of those
5732 movies, Disney was now suing Video Pipeline for $100 million.
5733 </p><p>
5734 Disney has the right to control its property, of course. But the video
5735 stores that were selling Disney's films also had some sort of right to be
5736 able to sell the films that they had bought from Disney. Disney's claim
5737 in court was that the stores were allowed to sell the films and they were
5738 permitted to list the titles of the films they were selling, but they were
5739 not allowed to show clips of the films as a way of selling them without
5740 Disney's permission.
5741 </p><a class="indexterm" name="idp8966944"></a><p>
5742 Now, you might think this is a close case, and I think the courts
5743 would consider it a close case. My point here is to map the change
5744 that gives Disney this power. Before the Internet, Disney couldn't
5745 really control how people got access to their content. Once a video
5746 was in the marketplace, the <span class="quote">«<span class="quote">first-sale doctrine</span>»</span> would free the
5747 seller to use the video as he wished, including showing portions of it
5748 in order to engender sales of the entire movie video. But with the
5749 Internet, it becomes possible for Disney to centralize control over
5750 access to this content. Because each use of the Internet produces a
5751 copy, use on the Internet becomes subject to the copyright owner's
5752 control. The technology expands the scope of effective control,
5753 because the technology builds a copy into every transaction.
5754 </p><a class="indexterm" name="idp8968848"></a><a class="indexterm" name="idp8970608"></a><a class="indexterm" name="idp8971856"></a><a class="indexterm" name="idp8973248"></a><a class="indexterm" name="idp8974640"></a><a class="indexterm" name="idp8976016"></a><a class="indexterm" name="idp8977440"></a><a class="indexterm" name="idp8978256"></a><a class="indexterm" name="idp8979072"></a><p>
5755
5756 No doubt, a potential is not yet an abuse, and so the potential for
5757 control is not yet the abuse of control. Barnes &amp; Noble has the
5758 right to say you can't touch a book in their store; property law gives
5759 them that right.  But the market effectively protects against that
5760 abuse. If Barnes &amp; Noble banned browsing, then consumers would
5761 choose other bookstores.  Competition protects against the
5762 extremes. And it may well be (my argument so far does not even
5763 question this) that competition would prevent any similar danger when
5764 it comes to copyright. Sure, publishers exercising the rights that
5765 authors have assigned to them might try to regulate how many times you
5766 read a book, or try to stop you from sharing the book with anyone. But
5767 in a competitive market such as the book market, the dangers of this
5768 happening are quite slight.
5769 </p><p>
5770 Again, my aim so far is simply to map the changes that this changed
5771 architecture enables. Enabling technology to enforce the control of
5772 copyright means that the control of copyright is no longer defined by
5773 balanced policy. The control of copyright is simply what private
5774 owners choose. In some contexts, at least, that fact is harmless. But
5775 in some contexts it is a recipe for disaster.
5776 </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>
5777 The disappearance of unregulated uses would be change enough, but a
5778 second important change brought about by the Internet magnifies its
5779 significance. This second change does not affect the reach of copyright
5780 regulation; it affects how such regulation is enforced.
5781 </p><a class="indexterm" name="idp8986048"></a><a class="indexterm" name="idp8987136"></a><p>
5782 In the world before digital technology, it was generally the law that
5783 controlled whether and how someone was regulated by copyright law.
5784 The law, meaning a court, meaning a judge: In the end, it was a human,
5785 trained in the tradition of the law and cognizant of the balances that
5786 tradition embraced, who said whether and how the law would restrict
5787 your freedom.
5788 </p><a class="indexterm" name="idp8989024"></a><a class="indexterm" name="idxmarxbrothers"></a><a class="indexterm" name="idxwarnerbrothers"></a><p>
5789 There's a famous story about a battle between the Marx Brothers
5790 and Warner Brothers. The Marxes intended to make a parody of
5791
5792 <em class="citetitle">Casablanca</em>. Warner Brothers objected. They
5793 wrote a nasty letter to the Marxes, warning them that there would be
5794 serious legal consequences if they went forward with their
5795 plan.<a href="#ftn.idp8994096" class="footnote" name="idp8994096"><sup class="footnote">[136]</sup></a>
5796 </p><p>
5797 This led the Marx Brothers to respond in kind. They warned
5798 Warner Brothers that the Marx Brothers <span class="quote">«<span class="quote">were brothers long before
5799 you were.</span>»</span><a href="#ftn.idp8996688" class="footnote" name="idp8996688"><sup class="footnote">[137]</sup></a>
5800 The Marx Brothers therefore owned the word
5801 <em class="citetitle">brothers</em>, and if Warner Brothers insisted on
5802 trying to control <em class="citetitle">Casablanca</em>, then the Marx
5803 Brothers would insist on control over <em class="citetitle">brothers</em>.
5804 </p><p>
5805 An absurd and hollow threat, of course, because Warner Brothers,
5806 like the Marx Brothers, knew that no court would ever enforce such a
5807 silly claim. This extremism was irrelevant to the real freedoms anyone
5808 (including Warner Brothers) enjoyed.
5809 </p><a class="indexterm" name="idxbooksoninternet2"></a><p>
5810 On the Internet, however, there is no check on silly rules, because on
5811 the Internet, increasingly, rules are enforced not by a human but by a
5812 machine: Increasingly, the rules of copyright law, as interpreted by
5813 the copyright owner, get built into the technology that delivers
5814 copyrighted content. It is code, rather than law, that rules. And the
5815 problem with code regulations is that, unlike law, code has no
5816 shame. Code would not get the humor of the Marx Brothers. The
5817 consequence of that is not at all funny.
5818 </p><a class="indexterm" name="idp9003792"></a><a class="indexterm" name="idp9005104"></a><a class="indexterm" name="idxadobeebookreader"></a><p>
5819 Consider the life of my Adobe eBook Reader.
5820 </p><p>
5821 An e-book is a book delivered in electronic form. An Adobe eBook is
5822 not a book that Adobe has published; Adobe simply produces the
5823 software that publishers use to deliver e-books. It provides the
5824 technology, and the publisher delivers the content by using the
5825 technology.
5826 </p><p>
5827 In <a class="xref" href="#fig-example-adobe-ebook-reader" title="Figure 10.12. Picture of an old version of Adobe eBook Reader">Figure 10.12, &#8220;Picture of an old version of Adobe eBook Reader&#8221;</a> is a picture of an old version of my
5828 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. Picture of an old version of Adobe eBook Reader</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%" alt="Picture of an old version of Adobe eBook Reader"></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. List of the permissions that the publisher purports to grant.</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%" alt="List of the permissions that the publisher purports to grant."></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="idp9020304"></a><a class="indexterm" name="idp9021120"></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. E-book of Aristotle's <span class="quote">«<span class="quote">Politics</span>»</span></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%" alt="E-book of Aristotle's «Politics»"></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. List of the permissions for Aristotle's <span class="quote">«<span class="quote">Politics</span>»</span>.</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%" alt="List of the permissions for Aristotle's «Politics»."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp9029552"></a><a class="indexterm" name="idp9030384"></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. List of the permissions for <span class="quote">«<span class="quote">The Future of Ideas</span>»</span>.</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%" alt="List of the permissions for «The Future of Ideas»."></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.idp9036560" class="footnote" name="idp9036560"><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="idp9041296"></a><a class="indexterm" name="idp9043008"></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. List of the permissions for <span class="quote">«<span class="quote">Alice's Adventures in
5924 Wonderland</span>»</span>.</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%" alt="List of the permissions for «Alice's Adventures in Wonderland»."></td></tr></table></div></div></div><br class="figure-break"><p>
5925 Here was a public domain children's book that you were not allowed to
5926 copy, not allowed to lend, not allowed to give, and, as the
5927 <span class="quote">«<span class="quote">permissions</span>»</span> indicated, not allowed to <span class="quote">«<span class="quote">read aloud</span>»</span>!
5928 </p><p>
5929 The public relations nightmare attached to that final permission.
5930 For the text did not say that you were not permitted to use the Read
5931 Aloud button; it said you did not have the permission to read the book
5932 aloud. That led some people to think that Adobe was restricting the
5933 right of parents, for example, to read the book to their children, which
5934 seemed, to say the least, absurd.
5935 </p><p>
5936 Adobe responded quickly that it was absurd to think that it was trying
5937 to restrict the right to read a book aloud. Obviously it was only
5938 restricting the ability to use the Read Aloud button to have the book
5939 read aloud. But the question Adobe never did answer is this: Would
5940 Adobe thus agree that a consumer was free to use software to hack
5941 around the restrictions built into the eBook Reader? If some company
5942 (call it Elcomsoft) developed a program to disable the technological
5943 protection built into an Adobe eBook so that a blind person, say,
5944 could use a computer to read the book aloud, would Adobe agree that
5945 such a use of an eBook Reader was fair? Adobe didn't answer because
5946 the answer, however absurd it might seem, is no.
5947 </p><a class="indexterm" name="idp9060064"></a><a class="indexterm" name="idp9061456"></a><p>
5948 The point is not to blame Adobe. Indeed, Adobe is among the most
5949 innovative companies developing strategies to balance open access to
5950 content with incentives for companies to innovate. But Adobe's
5951 technology enables control, and Adobe has an incentive to defend this
5952 control.  That incentive is understandable, yet what it creates is
5953 often crazy.
5954 </p><a class="indexterm" name="idp9063488"></a><a class="indexterm" name="idp9064688"></a><p>
5955 To see the point in a particularly absurd context, consider a favorite
5956 story of mine that makes the same point.
5957 </p><a class="indexterm" name="idxaibo1"></a><a class="indexterm" name="idxroboticdog1"></a><a class="indexterm" name="idxsonyaibo1"></a><p>
5958 Consider the robotic dog made by Sony named <span class="quote">«<span class="quote">Aibo.</span>»</span> The Aibo
5959 learns tricks, cuddles, and follows you around. It eats only electricity
5960 and that doesn't leave that much of a mess (at least in your house).
5961 </p><p>
5962 The Aibo is expensive and popular. Fans from around the world
5963 have set up clubs to trade stories. One fan in particular set up a Web
5964 site to enable information about the Aibo dog to be shared. This fan set
5965
5966 up aibopet.com (and aibohack.com, but that resolves to the same site),
5967 and on that site he provided information about how to teach an Aibo
5968 to do tricks in addition to the ones Sony had taught it.
5969 </p><p>
5970 <span class="quote">«<span class="quote">Teach</span>»</span> here has a special meaning. Aibos are just cute computers.
5971 You teach a computer how to do something by programming it
5972 differently.  So to say that aibopet.com was giving information about
5973 how to teach the dog to do new tricks is just to say that aibopet.com
5974 was giving information to users of the Aibo pet about how to hack
5975 their computer <span class="quote">«<span class="quote">dog</span>»</span> to make it do new tricks (thus, aibohack.com).
5976 </p><a class="indexterm" name="idp9075040"></a><p>
5977 If you're not a programmer or don't know many programmers, the word
5978 <em class="citetitle">hack</em> has a particularly unfriendly
5979 connotation. Nonprogrammers hack bushes or weeds. Nonprogrammers in
5980 horror movies do even worse. But to programmers, or coders, as I call
5981 them, <em class="citetitle">hack</em> is a much more positive
5982 term. <em class="citetitle">Hack</em> just means code that enables the
5983 program to do something it wasn't originally intended or enabled to
5984 do. If you buy a new printer for an old computer, you might find the
5985 old computer doesn't run, or <span class="quote">«<span class="quote">drive,</span>»</span> the printer. If you discovered
5986 that, you'd later be happy to discover a hack on the Net by someone
5987 who has written a driver to enable the computer to drive the printer
5988 you just bought.
5989 </p><p>
5990 Some hacks are easy. Some are unbelievably hard. Hackers as a
5991 community like to challenge themselves and others with increasingly
5992 difficult tasks. There's a certain respect that goes with the talent to hack
5993 well. There's a well-deserved respect that goes with the talent to hack
5994 ethically.
5995 </p><p>
5996 The Aibo fan was displaying a bit of both when he hacked the program
5997 and offered to the world a bit of code that would enable the Aibo to
5998 dance jazz. The dog wasn't programmed to dance jazz. It was a clever
5999 bit of tinkering that turned the dog into a more talented creature
6000 than Sony had built.
6001 </p><a class="indexterm" name="idp9080048"></a><a class="indexterm" name="idp9081296"></a><a class="indexterm" name="idp9082544"></a><p>
6002 I've told this story in many contexts, both inside and outside the
6003 United States. Once I was asked by a puzzled member of the audience,
6004 is it permissible for a dog to dance jazz in the United States? We
6005 forget that stories about the backcountry still flow across much of
6006 the
6007
6008
6009 world. So let's just be clear before we continue: It's not a crime
6010 anywhere (anymore) to dance jazz. Nor is it a crime to teach your dog
6011 to dance jazz. Nor should it be a crime (though we don't have a lot to
6012 go on here) to teach your robot dog to dance jazz. Dancing jazz is a
6013 completely legal activity. One imagines that the owner of aibopet.com
6014 thought, <span class="emphasis"><em>What possible problem could there be with teaching
6015 a robot dog to dance?</em></span>
6016 </p><a class="indexterm" name="idp9085632"></a><p>
6017 Let's put the dog to sleep for a minute, and turn to a pony show&#8212;
6018 not literally a pony show, but rather a paper that a Princeton academic
6019 named Ed Felten prepared for a conference. This Princeton academic
6020 is well known and respected. He was hired by the government in the
6021 Microsoft case to test Microsoft's claims about what could and could
6022 not be done with its own code. In that trial, he demonstrated both his
6023 brilliance and his coolness. Under heavy badgering by Microsoft
6024 lawyers, Ed Felten stood his ground. He was not about to be bullied
6025 into being silent about something he knew very well.
6026 </p><p>
6027 But Felten's bravery was really tested in April 2001.<a href="#ftn.idp9088144" class="footnote" name="idp9088144"><sup class="footnote">[139]</sup></a>
6028 He and a group of colleagues were working on a paper to be submitted
6029 at conference.  The paper was intended to describe the weakness in an
6030 encryption system being developed by the Secure Digital Music
6031 Initiative as a technique to control the distribution of music.
6032 </p><p>
6033 The SDMI coalition had as its goal a technology to enable content
6034 owners to exercise much better control over their content than the
6035 Internet, as it originally stood, granted them. Using encryption, SDMI
6036 hoped to develop a standard that would allow the content owner to say
6037 <span class="quote">«<span class="quote">this music cannot be copied,</span>»</span> and have a computer respect that
6038 command.  The technology was to be part of a <span class="quote">«<span class="quote">trusted system</span>»</span> of
6039 control that would get content owners to trust the system of the
6040 Internet much more.
6041 </p><p>
6042 When SDMI thought it was close to a standard, it set up a competition.
6043 In exchange for providing contestants with the code to an
6044 SDMI-encrypted bit of content, contestants were to try to crack it
6045 and, if they did, report the problems to the consortium.
6046 </p><p>
6047
6048 Felten and his team figured out the encryption system quickly. He and
6049 the team saw the weakness of this system as a type: Many encryption
6050 systems would suffer the same weakness, and Felten and his team
6051 thought it worthwhile to point this out to those who study encryption.
6052 </p><p>
6053 Let's review just what Felten was doing. Again, this is the United
6054 States. We have a principle of free speech. We have this principle not
6055 just because it is the law, but also because it is a really great
6056 idea. A strongly protected tradition of free speech is likely to
6057 encourage a wide range of criticism. That criticism is likely, in
6058 turn, to improve the systems or people or ideas criticized.
6059 </p><p>
6060 What Felten and his colleagues were doing was publishing a paper
6061 describing the weakness in a technology. They were not spreading free
6062 music, or building and deploying this technology. The paper was an
6063 academic essay, unintelligible to most people. But it clearly showed the
6064 weakness in the SDMI system, and why SDMI would not, as presently
6065 constituted, succeed.
6066 </p><a class="indexterm" name="idxaibo2"></a><a class="indexterm" name="idxroboticdog2"></a><a class="indexterm" name="idxsonyaibo2"></a><p>
6067 What links these two, aibopet.com and Felten, is the letters they
6068 then received. Aibopet.com received a letter from Sony about the
6069 aibopet.com hack. Though a jazz-dancing dog is perfectly legal, Sony
6070 wrote:
6071 </p><div class="blockquote"><blockquote class="blockquote"><p>
6072 Your site contains information providing the means to circumvent
6073 AIBO-ware's copy protection protocol constituting a violation of the
6074 anti-circumvention provisions of the Digital Millennium Copyright Act.
6075 </p></blockquote></div><a class="indexterm" name="idp9107744"></a><a class="indexterm" name="idp9109056"></a><a class="indexterm" name="idp9110304"></a><p>
6076 And though an academic paper describing the weakness in a system
6077 of encryption should also be perfectly legal, Felten received a letter
6078 from an RIAA lawyer that read:
6079 </p><div class="blockquote"><blockquote class="blockquote"><p>
6080 Any  disclosure of information gained from participating in the
6081
6082 Public Challenge would be outside the scope of activities permitted by
6083 the Agreement and could subject you and your research team to actions
6084 under the Digital Millennium Copyright Act (<span class="quote">«<span class="quote">DMCA</span>»</span>).
6085 </p></blockquote></div><p>
6086 In both cases, this weirdly Orwellian law was invoked to control the
6087 spread of information. The Digital Millennium Copyright Act made
6088 spreading such information an offense.
6089 </p><p>
6090 The DMCA was enacted as a response to copyright owners' first fear
6091 about cyberspace. The fear was that copyright control was effectively
6092 dead; the response was to find technologies that might compensate.
6093 These new technologies would be copyright protection
6094 technologies&#8212; technologies to control the replication and
6095 distribution of copyrighted material. They were designed as
6096 <span class="emphasis"><em>code</em></span> to modify the original
6097 <span class="emphasis"><em>code</em></span> of the Internet, to reestablish some
6098 protection for copyright owners.
6099 </p><p>
6100 The DMCA was a bit of law intended to back up the protection of this
6101 code designed to protect copyrighted material. It was, we could say,
6102 <span class="emphasis"><em>legal code</em></span> intended to buttress
6103 <span class="emphasis"><em>software code</em></span> which itself was intended to
6104 support the <span class="emphasis"><em>legal code of copyright</em></span>.
6105 </p><p>
6106 But the DMCA was not designed merely to protect copyrighted works to
6107 the extent copyright law protected them. Its protection, that is, did
6108 not end at the line that copyright law drew. The DMCA regulated
6109 devices that were designed to circumvent copyright protection
6110 measures. It was designed to ban those devices, whether or not the use
6111 of the copyrighted material made possible by that circumvention would
6112 have been a copyright violation.
6113 </p><a class="indexterm" name="idp9119008"></a><a class="indexterm" name="idp9119824"></a><a class="indexterm" name="idp9120640"></a><p>
6114 Aibopet.com and Felten make the point. The Aibo hack circumvented a
6115 copyright protection system for the purpose of enabling the dog to
6116 dance jazz. That enablement no doubt involved the use of copyrighted
6117 material. But as aibopet.com's site was noncommercial, and the use did
6118 not enable subsequent copyright infringements, there's no doubt that
6119 aibopet.com's hack was fair use of Sony's copyrighted material. Yet
6120 fair use is not a defense to the DMCA. The question is not whether the
6121
6122 use of the copyrighted material was a copyright violation. The question
6123 is whether a copyright protection system was circumvented.
6124 </p><p>
6125 The threat against Felten was more attenuated, but it followed the
6126 same line of reasoning. By publishing a paper describing how a
6127 copyright protection system could be circumvented, the RIAA lawyer
6128 suggested, Felten himself was distributing a circumvention technology.
6129 Thus, even though he was not himself infringing anyone's copyright,
6130 his academic paper was enabling others to infringe others' copyright.
6131 </p><a class="indexterm" name="idp9123904"></a><a class="indexterm" name="idxcassettevcrs2"></a><p>
6132 The bizarreness of these arguments is captured in a cartoon drawn in
6133 1981 by Paul Conrad. At that time, a court in California had held that
6134 the VCR could be banned because it was a copyright-infringing
6135 technology: It enabled consumers to copy films without the permission
6136 of the copyright owner. No doubt there were uses of the technology
6137 that were legal: Fred Rogers, aka <span class="quote">«<span class="quote"><em class="citetitle">Mr. Rogers</em>,</span>»</span>
6138 for example, had testified in that case that he wanted people to feel
6139 free to tape Mr. Rogers' Neighborhood.
6140 <a class="indexterm" name="idp9127920"></a>
6141 </p><div class="blockquote"><blockquote class="blockquote"><p>
6142 Some public stations, as well as commercial stations, program the
6143 <span class="quote">«<span class="quote">Neighborhood</span>»</span> at hours when some children cannot use it. I think that
6144 it's a real service to families to be able to record such programs and
6145 show them at appropriate times. I have always felt that with the
6146 advent of all of this new technology that allows people to tape the
6147 <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>
6148 because that's what I produce, that they then become much more active
6149 in the programming of their family's television life. Very frankly, I
6150 am opposed to people being programmed by others. My whole approach in
6151 broadcasting has always been <span class="quote">«<span class="quote">You are an important person just the way
6152 you are. You can make healthy decisions.</span>»</span> Maybe I'm going on too long,
6153 but I just feel that anything that allows a person to be more active
6154 in the control of his or her life, in a healthy way, is
6155 important.<a href="#ftn.idp9131936" class="footnote" name="idp9131936"><sup class="footnote">[140]</sup></a>
6156 </p></blockquote></div><p>
6157
6158 Even though there were uses that were legal, because there were
6159 some uses that were illegal, the court held the companies producing
6160 the VCR responsible.
6161 </p><p>
6162 This led Conrad to draw the cartoon in
6163 <a class="xref" href="#fig-1711-vcr-handgun-cartoonfig" title="Figure 10.18. VCR/handgun cartoon.">Figure 10.18, &#8220;VCR/handgun cartoon.&#8221;</a>, which we can adopt
6164 to the DMCA.
6165 <a class="indexterm" name="idp9138528"></a>
6166 </p><p>
6167 No argument I have can top this picture, but let me try to get close.
6168 </p><p>
6169 The anticircumvention provisions of the DMCA target copyright
6170 circumvention technologies. Circumvention technologies can be used for
6171 different ends. They can be used, for example, to enable massive
6172 pirating of copyrighted material&#8212;a bad end. Or they can be used
6173 to enable the use of particular copyrighted materials in ways that
6174 would be considered fair use&#8212;a good end.
6175 </p><a class="indexterm" name="idxhandguns"></a><p>
6176 A handgun can be used to shoot a police officer or a child. Most
6177
6178 would agree such a use is bad. Or a handgun can be used for target
6179 practice or to protect against an intruder. At least some would say that
6180 such a use would be good. It, too, is a technology that has both good
6181 and bad uses.
6182 </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. VCR/handgun cartoon.</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="VCR/handgun cartoon."></td></tr></table></div></div></div><br class="figure-break"></div><a class="indexterm" name="idp9145888"></a><p>
6183 The obvious point of Conrad's cartoon is the weirdness of a world
6184 where guns are legal, despite the harm they can do, while VCRs (and
6185 circumvention technologies) are illegal. Flash: <span class="emphasis"><em>No one ever
6186 died from copyright circumvention</em></span>. Yet the law bans circumvention
6187 technologies absolutely, despite the potential that they might do some
6188 good, but permits guns, despite the obvious and tragic harm they do.
6189 </p><a class="indexterm" name="idp9147920"></a><a class="indexterm" name="idp9149184"></a><a class="indexterm" name="idp9150496"></a><a class="indexterm" name="idp9151312"></a><a class="indexterm" name="idp9152128"></a><p>
6190 The Aibo and RIAA examples demonstrate how copyright owners are
6191 changing the balance that copyright law grants. Using code, copyright
6192 owners restrict fair use; using the DMCA, they punish those who would
6193 attempt to evade the restrictions on fair use that they impose through
6194 code. Technology becomes a means by which fair use can be erased; the
6195 law of the DMCA backs up that erasing.
6196 </p><p>
6197 This is how <span class="emphasis"><em>code</em></span> becomes
6198 <span class="emphasis"><em>law</em></span>. The controls built into the technology of
6199 copy and access protection become rules the violation of which is also
6200 a violation of the law. In this way, the code extends the
6201 law&#8212;increasing its regulation, even if the subject it regulates
6202 (activities that would otherwise plainly constitute fair use) is
6203 beyond the reach of the law. Code becomes law; code extends the law;
6204 code thus extends the control that copyright owners effect&#8212;at
6205 least for those copyright holders with the lawyers who can write the
6206 nasty letters that Felten and aibopet.com received.
6207 </p><p>
6208 There is one final aspect of the interaction between architecture and
6209 law that contributes to the force of copyright's regulation. This is
6210 the ease with which infringements of the law can be detected. For
6211 contrary to the rhetoric common at the birth of cyberspace that on the
6212 Internet, no one knows you're a dog, increasingly, given changing
6213 technologies deployed on the Internet, it is easy to find the dog who
6214 committed a legal wrong. The technologies of the Internet are open to
6215 snoops as well as sharers, and the snoops are increasingly good at
6216 tracking down the identity of those who violate the rules.
6217 </p><p>
6218
6219
6220 For example, imagine you were part of a <em class="citetitle">Star Trek</em> fan club. You
6221 gathered every month to share trivia, and maybe to enact a kind of fan
6222 fiction about the show. One person would play Spock, another, Captain
6223 Kirk. The characters would begin with a plot from a real story, then
6224 simply continue it.<a href="#ftn.idp9158784" class="footnote" name="idp9158784"><sup class="footnote">[141]</sup></a>
6225 </p><p>
6226 Before the Internet, this was, in effect, a totally unregulated
6227 activity.  No matter what happened inside your club room, you would
6228 never be interfered with by the copyright police. You were free in
6229 that space to do as you wished with this part of our culture. You were
6230 allowed to build on it as you wished without fear of legal control.
6231 </p><a class="indexterm" name="idp9161504"></a><p>
6232 But if you moved your club onto the Internet, and made it generally
6233 available for others to join, the story would be very different. Bots
6234 scouring the Net for trademark and copyright infringement would
6235 quickly find your site. Your posting of fan fiction, depending upon
6236 the ownership of the series that you're depicting, could well inspire
6237 a lawyer's threat. And ignoring the lawyer's threat would be extremely
6238 costly indeed.  The law of copyright is extremely efficient. The
6239 penalties are severe, and the process is quick.
6240 </p><p>
6241 This change in the effective force of the law is caused by a change
6242 in the ease with which the law can be enforced. That change too shifts
6243 the law's balance radically. It is as if your car transmitted the speed at
6244 which you traveled at every moment that you drove; that would be just
6245 one step before the state started issuing tickets based upon the data you
6246 transmitted. That is, in effect, what is happening here.
6247 </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>
6248 So copyright's duration has increased dramatically&#8212;tripled in
6249 the past thirty years. And copyright's scope has increased as
6250 well&#8212;from regulating only publishers to now regulating just
6251 about everyone. And copyright's reach has changed, as every action
6252 becomes a copy and hence presumptively regulated. And as technologists
6253 find better ways
6254
6255 to control the use of content, and as copyright is increasingly
6256 enforced through technology, copyright's force changes, too. Misuse is
6257 easier to find and easier to control. This regulation of the creative
6258 process, which began as a tiny regulation governing a tiny part of the
6259 market for creative work, has become the single most important
6260 regulator of creativity there is. It is a massive expansion in the
6261 scope of the government's control over innovation and creativity; it
6262 would be totally unrecognizable to those who gave birth to copyright's
6263 control.
6264 </p><p>
6265 Still, in my view, all of these changes would not matter much if it
6266 weren't for one more change that we must also consider. This is a
6267 change that is in some sense the most familiar, though its significance
6268 and scope are not well understood. It is the one that creates precisely the
6269 reason to be concerned about all the other changes I have described.
6270 </p><p>
6271 This is the change in the concentration and integration of the media.
6272 In the past twenty years, the nature of media ownership has undergone
6273 a radical alteration, caused by changes in legal rules governing the
6274 media.  Before this change happened, the different forms of media were
6275 owned by separate media companies. Now, the media is increasingly
6276 owned by only a few companies. Indeed, after the changes that the FCC
6277 announced in June 2003, most expect that within a few years, we will
6278 live in a world where just three companies control more than 85 percent
6279 of the media.
6280 </p><p>
6281 These changes are of two sorts: the scope of concentration, and its
6282 nature.
6283 </p><a class="indexterm" name="idp9169840"></a><a class="indexterm" name="idp9170624"></a><a class="indexterm" name="idp9171456"></a><a class="indexterm" name="idp9172240"></a><a class="indexterm" name="idp9173056"></a><a class="indexterm" name="idp9173872"></a><p>
6284 Changes in scope are the easier ones to describe. As Senator John
6285 McCain summarized the data produced in the FCC's review of media
6286 ownership, <span class="quote">«<span class="quote">five companies control 85 percent of our media sources.</span>»</span><a href="#ftn.idp9175360" class="footnote" name="idp9175360"><sup class="footnote">[142]</sup></a>
6287 The five recording labels of Universal Music Group, BMG, Sony Music
6288 Entertainment, Warner Music Group, and EMI control 84.8 percent of the
6289 U.S. music market.<a href="#ftn.idp9176576" class="footnote" name="idp9176576"><sup class="footnote">[143]</sup></a>
6290 The <span class="quote">«<span class="quote">five largest cable companies pipe
6291 programming to 74 percent of the cable subscribers nationwide.</span>»</span><a href="#ftn.idp9178704" class="footnote" name="idp9178704"><sup class="footnote">[144]</sup></a>
6292 </p><p>
6293 The story with radio is even more dramatic. Before deregulation,
6294 the nation's largest radio broadcasting conglomerate owned fewer than
6295
6296 seventy-five stations. Today <span class="emphasis"><em>one</em></span> company owns
6297 more than 1,200 stations.  During that period of consolidation, the
6298 total number of radio owners dropped by 34 percent. Today, in most
6299 markets, the two largest broadcasters control 74 percent of that
6300 market's revenues. Overall, just four companies control 90 percent of
6301 the nation's radio advertising revenues.
6302 </p><a class="indexterm" name="idp9182208"></a><p>
6303 Newspaper ownership is becoming more concentrated as well.  Today,
6304 there are six hundred fewer daily newspapers in the United States than
6305 there were eighty years ago, and ten companies control half of the
6306 nation's circulation. There are twenty major newspaper publishers in
6307 the United States. The top ten film studios receive 99 percent of all
6308 film revenue. The ten largest cable companies account for 85 percent
6309 of all cable revenue. This is a market far from the free press the
6310 framers sought to protect. Indeed, it is a market that is quite well
6311 protected&#8212; by the market.
6312 </p><a class="indexterm" name="idp9183248"></a><p>
6313 Concentration in size alone is one thing. The more invidious
6314 change is in the nature of that concentration. As author James Fallows
6315 put it in a recent article about Rupert Murdoch,
6316 </p><div class="blockquote"><blockquote class="blockquote"><p>
6317 Murdoch's companies now constitute a production system
6318 unmatched in its integration. They supply content&#8212;Fox movies
6319 &#8230;  Fox TV shows &#8230; Fox-controlled sports broadcasts, plus
6320 newspapers and books. They sell the content to the public and to
6321 advertisers&#8212;in newspapers, on the broadcast network, on the
6322 cable channels. And they operate the physical distribution system
6323 through which the content reaches the customers. Murdoch's satellite
6324 systems now distribute News Corp. content in Europe and Asia; if
6325 Murdoch becomes DirecTV's largest single owner, that system will serve
6326 the same function in the United States.<a href="#ftn.idp9186048" class="footnote" name="idp9186048"><sup class="footnote">[145]</sup></a>
6327 </p></blockquote></div><p>
6328 The pattern with Murdoch is the pattern of modern media. Not
6329 just large companies owning many radio stations, but a few companies
6330 owning as many outlets of media as possible. A picture describes this
6331 pattern better than a thousand words could do:
6332 </p><div class="figure"><a name="fig-1761-pattern-modern-media-ownership"></a><p class="title"><b>Figure 10.19. Pattern of modern media ownership.</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%" alt="Pattern of modern media ownership."></td></tr></table></div></div></div><br class="figure-break"><p>
6333
6334 Does this concentration matter? Will it affect what is made, or
6335 what is distributed? Or is it merely a more efficient way to produce and
6336 distribute content?
6337 </p><p>
6338 My view was that concentration wouldn't matter. I thought it was
6339 nothing more than a more efficient financial structure. But now, after
6340 reading and listening to a barrage of creators try to convince me to the
6341 contrary, I am beginning to change my mind.
6342 </p><p>
6343 Here's a representative story that begins to suggest how this
6344 integration may matter.
6345 </p><a class="indexterm" name="idp9194640"></a><a class="indexterm" name="idp9195424"></a><a class="indexterm" name="idp9196208"></a><p>
6346 In 1969, Norman Lear created a pilot for <em class="citetitle">All in the Family</em>. He took
6347 the pilot to ABC. The network didn't like it. It was too edgy, they told
6348 Lear. Make it again. Lear made a second pilot, more edgy than the
6349 first. ABC was exasperated. You're missing the point, they told Lear.
6350 We wanted less edgy, not more.
6351 </p><p>
6352 Rather than comply, Lear simply took the show elsewhere. CBS
6353 was happy to have the series; ABC could not stop Lear from walking.
6354 The copyrights that Lear held assured an independence from network
6355 control.<a href="#ftn.idp9198640" class="footnote" name="idp9198640"><sup class="footnote">[146]</sup></a>
6356 </p><p>
6357
6358
6359 The network did not control those copyrights because the law forbade
6360 the networks from controlling the content they syndicated. The law
6361 required a separation between the networks and the content producers;
6362 that separation would guarantee Lear freedom. And as late as 1992,
6363 because of these rules, the vast majority of prime time
6364 television&#8212;75 percent of it&#8212;was <span class="quote">«<span class="quote">independent</span>»</span> of the
6365 networks.
6366 </p><p>
6367 In 1994, the FCC abandoned the rules that required this independence.
6368 After that change, the networks quickly changed the balance.  In 1985,
6369 there were twenty-five independent television production studios; in
6370 2002, only five independent television studios remained. <span class="quote">«<span class="quote">In 1992,
6371 only 15 percent of new series were produced for a network by a company
6372 it controlled. Last year, the percentage of shows produced by
6373 controlled companies more than quintupled to 77 percent.</span>»</span> <span class="quote">«<span class="quote">In 1992, 16
6374 new series were produced independently of conglomerate control, last
6375 year there was one.</span>»</span><a href="#ftn.idp9205248" class="footnote" name="idp9205248"><sup class="footnote">[147]</sup></a>
6376 In 2002, 75 percent of prime time television was owned by the networks
6377 that ran it. <span class="quote">«<span class="quote">In the ten-year period between 1992 and 2002, the number
6378 of prime time television hours per week produced by network studios
6379 increased over 200%, whereas the number of prime time television hours
6380 per week produced by independent studios decreased
6381 63%.</span>»</span><a href="#ftn.idp9207792" class="footnote" name="idp9207792"><sup class="footnote">[148]</sup></a>
6382 </p><a class="indexterm" name="idp9208784"></a><p>
6383 Today, another Norman Lear with another <em class="citetitle">All in the Family</em> would
6384 find that he had the choice either to make the show less edgy or to be
6385 fired: The content of any show developed for a network is increasingly
6386 owned by the network.
6387 </p><a class="indexterm" name="idp9210656"></a><a class="indexterm" name="idp9211472"></a><p>
6388 While the number of channels has increased dramatically, the ownership
6389 of those channels has narrowed to an ever smaller and smaller few. As
6390 Barry Diller said to Bill Moyers,
6391 </p><div class="blockquote"><blockquote class="blockquote"><p>
6392 Well, if you have companies that produce, that finance, that air on
6393 their channel and then distribute worldwide everything that goes
6394 through their controlled distribution system, then what you get is
6395 fewer and fewer actual voices participating in the process. [We
6396
6397 u]sed to have dozens and dozens of thriving independent production
6398 companies producing television programs. Now you have less than a
6399 handful.<a href="#ftn.idp9214144" class="footnote" name="idp9214144"><sup class="footnote">[149]</sup></a>
6400 </p></blockquote></div><p>
6401 This narrowing has an effect on what is produced. The product of such
6402 large and concentrated networks is increasingly homogenous.
6403 Increasingly safe. Increasingly sterile. The product of news shows
6404 from networks like this is increasingly tailored to the message the
6405 network wants to convey. This is not the communist party, though from
6406 the inside, it must feel a bit like the communist party. No one can
6407 question without risk of consequence&#8212;not necessarily banishment
6408 to Siberia, but punishment nonetheless. Independent, critical,
6409 different views are quashed. This is not the environment for a
6410 democracy.
6411 </p><a class="indexterm" name="idp9217104"></a><p>
6412 Economics itself offers a parallel that explains why this integration
6413 affects creativity. Clay Christensen has written about the <span class="quote">«<span class="quote">Innovator's
6414 Dilemma</span>»</span>: the fact that large traditional firms find it rational to ignore
6415 new, breakthrough technologies that compete with their core business.
6416 The same analysis could help explain why large, traditional media
6417 companies would find it rational to ignore new cultural trends.<a href="#ftn.idp9219808" class="footnote" name="idp9219808"><sup class="footnote">[150]</sup></a>
6418
6419 Lumbering giants not only don't, but should not, sprint. Yet if the
6420 field is only open to the giants, there will be far too little
6421 sprinting.
6422 <a class="indexterm" name="idp9223216"></a>
6423 </p><p>
6424 I don't think we know enough about the economics of the media
6425 market to say with certainty what concentration and integration will
6426 do. The efficiencies are important, and the effect on culture is hard to
6427 measure.
6428 </p><p>
6429 But there is a quintessentially obvious example that does strongly
6430 suggest the concern.
6431 </p><p>
6432 In addition to the copyright wars, we're in the middle of the drug
6433 wars. Government policy is strongly directed against the drug cartels;
6434 criminal and civil courts are filled with the consequences of this battle.
6435 </p><p>
6436 Let me hereby disqualify myself from any possible appointment to
6437 any position in government by saying I believe this war is a profound
6438 mistake. I am not pro drugs. Indeed, I come from a family once
6439
6440
6441 wrecked by drugs&#8212;though the drugs that wrecked my family were
6442 all quite legal. I believe this war is a profound mistake because the
6443 collateral damage from it is so great as to make waging the war
6444 insane.  When you add together the burdens on the criminal justice
6445 system, the desperation of generations of kids whose only real
6446 economic opportunities are as drug warriors, the queering of
6447 constitutional protections because of the constant surveillance this
6448 war requires, and, most profoundly, the total destruction of the legal
6449 systems of many South American nations because of the power of the
6450 local drug cartels, I find it impossible to believe that the marginal
6451 benefit in reduced drug consumption by Americans could possibly
6452 outweigh these costs.
6453 </p><p>
6454 You may not be convinced. That's fine. We live in a democracy, and it
6455 is through votes that we are to choose policy. But to do that, we
6456 depend fundamentally upon the press to help inform Americans about
6457 these issues.
6458 </p><a class="indexterm" name="idxadvertising3"></a><a class="indexterm" name="idxcommercials"></a><a class="indexterm" name="idxtelevisionadvertisingon"></a><a class="indexterm" name="idp9233008"></a><p>
6459 Beginning in 1998, the Office of National Drug Control Policy launched
6460 a media campaign as part of the <span class="quote">«<span class="quote">war on drugs.</span>»</span> The campaign produced
6461 scores of short film clips about issues related to illegal drugs. In
6462 one series (the Nick and Norm series) two men are in a bar, discussing
6463 the idea of legalizing drugs as a way to avoid some of the collateral
6464 damage from the war. One advances an argument in favor of drug
6465 legalization. The other responds in a powerful and effective way
6466 against the argument of the first. In the end, the first guy changes
6467 his mind (hey, it's television). The plug at the end is a damning
6468 attack on the pro-legalization campaign.
6469 </p><p>
6470 Fair enough. It's a good ad. Not terribly misleading. It delivers its
6471 message well. It's a fair and reasonable message.
6472 </p><p>
6473 But let's say you think it is a wrong message, and you'd like to run a
6474 countercommercial. Say you want to run a series of ads that try to
6475 demonstrate the extraordinary collateral harm that comes from the drug
6476 war. Can you do it?
6477 </p><p>
6478 Well, obviously, these ads cost lots of money. Assume you raise the
6479
6480 money. Assume a group of concerned citizens donates all the money in
6481 the world to help you get your message out. Can you be sure your
6482 message will be heard then?
6483 </p><a class="indexterm" name="idp9237392"></a><a class="indexterm" name="idp9238464"></a><a class="indexterm" name="idp9239280"></a><a class="indexterm" name="idp9240400"></a><p>
6484 No. You cannot. Television stations have a general policy of avoiding
6485 <span class="quote">«<span class="quote">controversial</span>»</span> ads. Ads sponsored by the government are deemed
6486 uncontroversial; ads disagreeing with the government are
6487 controversial.  This selectivity might be thought inconsistent with
6488 the First Amendment, but the Supreme Court has held that stations have
6489 the right to choose what they run. Thus, the major channels of
6490 commercial media will refuse one side of a crucial debate the
6491 opportunity to present its case.  And the courts will defend the
6492 rights of the stations to be this biased.<a href="#ftn.idp9243232" class="footnote" name="idp9243232"><sup class="footnote">[151]</sup></a>
6493 </p><a class="indexterm" name="idp9255744"></a><a class="indexterm" name="idp9257056"></a><p>
6494 I'd be happy to defend the networks' rights, as well&#8212;if we lived
6495 in a media market that was truly diverse. But concentration in the
6496 media throws that condition into doubt. If a handful of companies
6497 control access to the media, and that handful of companies gets to
6498 decide which political positions it will allow to be promoted on its
6499 channels, then in an obvious and important way, concentration
6500 matters. You might like the positions the handful of companies
6501 selects. But you should not like a world in which a mere few get to
6502 decide which issues the rest of us get to know about.
6503 </p><a class="indexterm" name="idp9259536"></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>
6504 There is something innocent and obvious about the claim of the
6505 copyright warriors that the government should <span class="quote">«<span class="quote">protect my property.</span>»</span>
6506 In the abstract, it is obviously true and, ordinarily, totally
6507 harmless. No sane sort who is not an anarchist could disagree.
6508 </p><p>
6509 But when we see how dramatically this <span class="quote">«<span class="quote">property</span>»</span> has changed&#8212;
6510 when we recognize how it might now interact with both technology and
6511 markets to mean that the effective constraint on the liberty to
6512 cultivate our culture is dramatically different&#8212;the claim begins
6513 to seem
6514
6515
6516 less innocent and obvious. Given (1) the power of technology to
6517 supplement the law's control, and (2) the power of concentrated
6518 markets to weaken the opportunity for dissent, if strictly enforcing
6519 the massively expanded <span class="quote">«<span class="quote">property</span>»</span> rights granted by copyright
6520 fundamentally changes the freedom within this culture to cultivate and
6521 build upon our past, then we have to ask whether this property should
6522 be redefined.
6523 </p><p>
6524 Not starkly. Or absolutely. My point is not that we should abolish
6525 copyright or go back to the eighteenth century. That would be a total
6526 mistake, disastrous for the most important creative enterprises within
6527 our culture today.
6528 </p><p>
6529 But there is a space between zero and one, Internet culture
6530 notwithstanding.  And these massive shifts in the effective power of
6531 copyright regulation, tied to increased concentration of the content
6532 industry and resting in the hands of technology that will increasingly
6533 enable control over the use of culture, should drive us to consider
6534 whether another adjustment is called for. Not an adjustment that
6535 increases copyright's power. Not an adjustment that increases its
6536 term. Rather, an adjustment to restore the balance that has
6537 traditionally defined copyright's regulation&#8212;a weakening of that
6538 regulation, to strengthen creativity.
6539 </p><p>
6540 Copyright law has not been a rock of Gibraltar. It's not a set of
6541 constant commitments that, for some mysterious reason, teenagers and
6542 geeks now flout. Instead, copyright power has grown dramatically in a
6543 short period of time, as the technologies of distribution and creation
6544 have changed and as lobbyists have pushed for more control by
6545 copyright holders. Changes in the past in response to changes in
6546 technology suggest that we may well need similar changes in the
6547 future. And these changes have to be <span class="emphasis"><em>reductions</em></span>
6548 in the scope of copyright, in response to the extraordinary increase
6549 in control that technology and the market enable.
6550 </p><p>
6551 For the single point that is lost in this war on pirates is a point that
6552 we see only after surveying the range of these changes. When you add
6553
6554 together the effect of changing law, concentrated markets, and
6555 changing technology, together they produce an astonishing conclusion:
6556 <span class="emphasis"><em>Never in our history have fewer had a legal right to control
6557 more of the development of our culture than now</em></span>.
6558 </p><p>
6559 Not when copyrights were perpetual, for when copyrights were
6560 perpetual, they affected only that precise creative work. Not when
6561 only publishers had the tools to publish, for the market then was much
6562 more diverse. Not when there were only three television networks, for
6563 even then, newspapers, film studios, radio stations, and publishers
6564 were independent of the networks. <span class="emphasis"><em>Never</em></span> has
6565 copyright protected such a wide range of rights, against as broad a
6566 range of actors, for a term that was remotely as long. This form of
6567 regulation&#8212;a tiny regulation of a tiny part of the creative
6568 energy of a nation at the founding&#8212;is now a massive regulation
6569 of the overall creative process. Law plus technology plus the market
6570 now interact to turn this historically benign regulation into the most
6571 significant regulation of culture that our free society has
6572 known.<a href="#ftn.idp9271088" class="footnote" name="idp9271088"><sup class="footnote">[152]</sup></a>
6573 </p><p>
6574 <span class="strong"><strong>This has been</strong></span> a long chapter. Its
6575 point can now be briefly stated.
6576 </p><p>
6577 At the start of this book, I distinguished between commercial and
6578 noncommercial culture. In the course of this chapter, I have
6579 distinguished between copying a work and transforming it. We can now
6580 combine these two distinctions and draw a clear map of the changes
6581 that copyright law has undergone.  In 1790, the law looked like this:
6582 </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>
6583 The act of publishing a map, chart, and book was regulated by
6584 copyright law. Nothing else was. Transformations were free. And as
6585 copyright attached only with registration, and only those who intended
6586
6587
6588 to benefit commercially would register, copying through publishing of
6589 noncommercial work was also free.
6590 </p><p>
6591 By the end of the nineteenth century, the law had changed to this:
6592 </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>
6593 Derivative works were now regulated by copyright law&#8212;if
6594 published, which again, given the economics of publishing at the time,
6595 means if offered commercially. But noncommercial publishing and
6596 transformation were still essentially free.
6597 </p><p>
6598 In 1909 the law changed to regulate copies, not publishing, and after
6599 this change, the scope of the law was tied to technology. As the
6600 technology of copying became more prevalent, the reach of the law
6601 expanded.  Thus by 1975, as photocopying machines became more common,
6602 we could say the law began to look like this:
6603 </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>
6604 The law was interpreted to reach noncommercial copying through, say,
6605 copy machines, but still much of copying outside of the commercial
6606 market remained free. But the consequence of the emergence of digital
6607 technologies, especially in the context of a digital network, means
6608 that the law now looks like this:
6609 </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>
6610 Every realm is governed by copyright law, whereas before most
6611 creativity was not. The law now regulates the full range of
6612 creativity&#8212;
6613
6614 commercial or not, transformative or not&#8212;with the same rules
6615 designed to regulate commercial publishers.
6616 </p><p>
6617 Obviously, copyright law is not the enemy. The enemy is regulation
6618 that does no good. So the question that we should be asking just now
6619 is whether extending the regulations of copyright law into each of
6620 these domains actually does any good.
6621 </p><p>
6622 I have no doubt that it does good in regulating commercial copying.
6623 But I also have no doubt that it does more harm than good when
6624 regulating (as it regulates just now) noncommercial copying and,
6625 especially, noncommercial transformation. And increasingly, for the
6626 reasons sketched especially in chapters
6627 <a class="xref" href="#recorders" title="Chapter 7. Recorders">7</a> and
6628 <a class="xref" href="#transformers" title="Chapter 8. Transformers">8</a>, one
6629 might well wonder whether it does more harm than good for commercial
6630 transformation.  More commercial transformative work would be created
6631 if derivative rights were more sharply restricted.
6632 </p><p>
6633 The issue is therefore not simply whether copyright is property. Of
6634 course copyright is a kind of <span class="quote">«<span class="quote">property,</span>»</span> and of course, as with any
6635 property, the state ought to protect it. But first impressions
6636 notwithstanding, historically, this property right (as with all
6637 property rights<a href="#ftn.idp9313552" class="footnote" name="idp9313552"><sup class="footnote">[153]</sup></a>)
6638 has been crafted to balance the important need to give authors and
6639 artists incentives with the equally important need to assure access to
6640 creative work. This balance has always been struck in light of new
6641 technologies.  And for almost half of our tradition, the <span class="quote">«<span class="quote">copyright</span>»</span>
6642 did not control <span class="emphasis"><em>at all</em></span> the freedom of others to
6643 build upon or transform a creative work. American culture was born
6644 free, and for almost 180 years our country consistently protected a
6645 vibrant and rich free culture.
6646 </p><a class="indexterm" name="idp9317888"></a><p>
6647 We achieved that free culture because our law respected important
6648 limits on the scope of the interests protected by <span class="quote">«<span class="quote">property.</span>»</span> The very
6649 birth of <span class="quote">«<span class="quote">copyright</span>»</span> as a statutory right recognized those limits, by
6650 granting copyright owners protection for a limited time only (the
6651 story of chapter <a class="xref" href="#founders" title="Chapter 6. Founders">6</a>). The tradition of <span class="quote">«<span class="quote">fair use</span>»</span> is
6652 animated by a similar concern that is increasingly under strain as the
6653 costs of exercising any fair use right become unavoidably high (the
6654 story of chapter <a class="xref" href="#recorders" title="Chapter 7. Recorders">7</a>). Adding
6655
6656 statutory rights where markets might stifle innovation is another
6657 familiar limit on the property right that copyright is (chapter <a class="xref" href="#transformers" title="Chapter 8. Transformers">8</a>). And
6658 granting archives and libraries a broad freedom to collect, claims of
6659 property notwithstanding, is a crucial part of guaranteeing the soul
6660 of a culture (chapter <a class="xref" href="#collectors" title="Chapter 9. Collectors">9</a>). Free cultures, like free markets, are built
6661 with property. But the nature of the property that builds a free
6662 culture is very different from the extremist vision that dominates the
6663 debate today.
6664 </p><p>
6665 Free culture is increasingly the casualty in this war on piracy. In
6666 response to a real, if not yet quantified, threat that the
6667 technologies of the Internet present to twentieth-century business
6668 models for producing and distributing culture, the law and technology
6669 are being transformed in a way that will undermine our tradition of
6670 free culture. The property right that is copyright is no longer the
6671 balanced right that it was, or was intended to be. The property right
6672 that is copyright has become unbalanced, tilted toward an extreme. The
6673 opportunity to create and transform becomes weakened in a world in
6674 which creation requires permission and creativity must check with a
6675 lawyer.
6676 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8451024" class="footnote"><p><a href="#idp8451024" class="para"><sup class="para">[118] </sup></a>
6677
6678 Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R.
6679 4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the
6680 Subcommittee on Courts, Civil Liberties, and the Administration of
6681 Justice of the Committee on the Judiciary of the House of
6682 Representatives, 97th Cong., 2nd sess. (1982): 65 (testimony of Jack
6683 Valenti).
6684 </p></div><div id="ftn.idp8458352" class="footnote"><p><a href="#idp8458352" class="para"><sup class="para">[119] </sup></a>
6685
6686 Lawyers speak of <span class="quote">«<span class="quote">property</span>»</span> not as an absolute thing, but as a bundle
6687 of rights that are sometimes associated with a particular
6688 object. Thus, my <span class="quote">«<span class="quote">property right</span>»</span> to my car gives me the right to
6689 exclusive use, but not the right to drive at 150 miles an hour. For
6690 the best effort to connect the ordinary meaning of <span class="quote">«<span class="quote">property</span>»</span> to
6691 <span class="quote">«<span class="quote">lawyer talk,</span>»</span> see Bruce Ackerman, <em class="citetitle">Private Property and the
6692 Constitution</em> (New Haven: Yale University Press, 1977), 26&#8211;27.
6693 </p></div><div id="ftn.idp8520960" class="footnote"><p><a href="#idp8520960" class="para"><sup class="para">[120] </sup></a>
6694
6695 By describing the way law affects the other three modalities, I don't
6696 mean to suggest that the other three don't affect law. Obviously, they
6697 do. Law's only distinction is that it alone speaks as if it has a
6698 right self-consciously to change the other three. The right of the
6699 other three is more timidly expressed.  See Lawrence Lessig, <em class="citetitle">Code: And
6700 Other Laws of Cyberspace</em> (New York: Basic Books, 1999): 90&#8211;95;
6701 Lawrence Lessig, <span class="quote">«<span class="quote">The New Chicago School,</span>»</span> <em class="citetitle">Journal of Legal Studies</em>,
6702 June 1998.
6703 </p></div><div id="ftn.idp8531296" class="footnote"><p><a href="#idp8531296" class="para"><sup class="para">[121] </sup></a>
6704
6705 Some people object to this way of talking about <span class="quote">«<span class="quote">liberty.</span>»</span> They object
6706 because their focus when considering the constraints that exist at any
6707 particular moment are constraints imposed exclusively by the
6708 government. For instance, if a storm destroys a bridge, these people
6709 think it is meaningless to say that one's liberty has been
6710 restrained. A bridge has washed out, and it's harder to get from one
6711 place to another. To talk about this as a loss of freedom, they say,
6712 is to confuse the stuff of politics with the vagaries of ordinary
6713 life.  I don't mean to deny the value in this narrower view, which
6714 depends upon the context of the inquiry. I do, however, mean to argue
6715 against any insistence that this narrower view is the only proper view
6716 of liberty. As I argued in <em class="citetitle">Code</em>, we come from a
6717 long tradition of political thought with a broader focus than the
6718 narrow question of what the government did when.  John Stuart Mill
6719 defended freedom of speech, for example, from the tyranny of narrow
6720 minds, not from the fear of government prosecution; John Stuart Mill,
6721 <em class="citetitle">On Liberty</em> (Indiana: Hackett Publishing Co.,
6722 1978), 19.  John R. Commons famously defended the economic freedom of
6723 labor from constraints imposed by the market; John R. Commons, <span class="quote">«<span class="quote">The
6724 Right to Work,</span>»</span> in Malcom Rutherford and Warren J. Samuels, eds.,
6725 <em class="citetitle">John R. Commons: Selected Essays</em> (London:
6726 Routledge: 1997), 62. The Americans with Disabilities Act increases
6727 the liberty of people with physical disabilities by changing the
6728 architecture of certain public places, thereby making access to those
6729 places easier; 42 <em class="citetitle">United States Code</em>, section
6730 12101 (2000).  Each of these interventions to change existing
6731 conditions changes the liberty of a particular group. The effect of
6732 those interventions should be accounted for in order to understand the
6733 effective liberty that each of these groups might face.
6734 <a class="indexterm" name="idp8536528"></a>
6735 <a class="indexterm" name="idp8537360"></a>
6736 <a class="indexterm" name="idp8538176"></a>
6737 <a class="indexterm" name="idp8539024"></a>
6738 </p></div><div id="ftn.idp8589024" class="footnote"><p><a href="#idp8589024" class="para"><sup class="para">[122] </sup></a>
6739
6740 See Geoffrey Smith, <span class="quote">«<span class="quote">Film vs. Digital: Can Kodak Build a Bridge?</span>»</span>
6741 BusinessWeek online, 2 August 1999, available at
6742 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #23</a>. For a more
6743 recent analysis of Kodak's place in the market, see Chana
6744 R. Schoenberger, <span class="quote">«<span class="quote">Can Kodak Make Up for Lost Moments?</span>»</span> Forbes.com, 6
6745 October 2003, available at
6746 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #24</a>.
6747 </p></div><div id="ftn.idp8602160" class="footnote"><p><a href="#idp8602160" class="para"><sup class="para">[123] </sup></a>
6748
6749 Fred Warshofsky, <em class="citetitle">The Patent Wars</em> (New York: Wiley, 1994), 170&#8211;71.
6750 </p></div><div id="ftn.idp8633264" class="footnote"><p><a href="#idp8633264" class="para"><sup class="para">[124] </sup></a>
6751
6752 See, for example, James Boyle, <span class="quote">«<span class="quote">A Politics of Intellectual Property:
6753 Environmentalism for the Net?</span>»</span> <em class="citetitle">Duke Law Journal</em> 47 (1997): 87.
6754 </p></div><div id="ftn.idp8702512" class="footnote"><p><a href="#idp8702512" class="para"><sup class="para">[125] </sup></a>
6755
6756 William W. Crosskey, <em class="citetitle">Politics and the Constitution in the History of
6757 the United States</em> (London: Cambridge University Press, 1953), vol. 1,
6758 485&#8211;86: <span class="quote">«<span class="quote">extinguish[ing], by plain implication of `the supreme
6759 Law of the Land,' <span class="emphasis"><em>the perpetual rights which authors had, or
6760 were supposed by some to have, under the Common Law</em></span></span>»</span>
6761 (emphasis added).
6762 <a class="indexterm" name="idp8704800"></a>
6763 </p></div><div id="ftn.idp8714144" class="footnote"><p><a href="#idp8714144" class="para"><sup class="para">[126] </sup></a>
6764
6765 Although 13,000 titles were published in the United States from 1790
6766 to 1799, only 556 copyright registrations were filed; John Tebbel, <em class="citetitle">A
6767 History of Book Publishing in the United States</em>, vol. 1, <em class="citetitle">The Creation
6768 of an Industry, 1630&#8211;1865</em> (New York: Bowker, 1972), 141. Of the 21,000
6769 imprints recorded before 1790, only twelve were copyrighted under the
6770 1790 act; William J. Maher, <em class="citetitle">Copyright Term, Retrospective Extension
6771 and the Copyright Law of 1790 in Historical Context</em>, 7&#8211;10 (2002),
6772 available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
6773 #25</a>.  Thus, the overwhelming majority of works fell
6774 immediately into the public domain. Even those works that were
6775 copyrighted fell into the public domain quickly, because the term of
6776 copyright was short. The initial term of copyright was fourteen years,
6777 with the option of renewal for an additional fourteen years. Copyright
6778 Act of May 31, 1790, §1, 1 stat. 124.  </p></div><div id="ftn.idp8722480" class="footnote"><p><a href="#idp8722480" class="para"><sup class="para">[127] </sup></a>
6779
6780 Few copyright holders ever chose to renew their copyrights. For
6781 instance, of the 25,006 copyrights registered in 1883, only 894 were
6782 renewed in 1910. For a year-by-year analysis of copyright renewal
6783 rates, see Barbara A. Ringer, <span class="quote">«<span class="quote">Study No. 31: Renewal of Copyright,</span>»</span>
6784 <em class="citetitle">Studies on Copyright</em>, vol. 1 (New York: Practicing Law Institute,
6785 1963), 618. For a more recent and comprehensive analysis, see William
6786 M. Landes and Richard A.  Posner, <span class="quote">«<span class="quote">Indefinitely Renewable Copyright,</span>»</span>
6787 <em class="citetitle">University of Chicago Law Review</em> 70 (2003): 471, 498&#8211;501, and
6788 accompanying figures.  </p></div><div id="ftn.idp8729616" class="footnote"><p><a href="#idp8729616" class="para"><sup class="para">[128] </sup></a>
6789
6790 See Ringer, ch. 9, n. 2.  </p></div><div id="ftn.idp8755792" class="footnote"><p><a href="#idp8755792" class="para"><sup class="para">[129] </sup></a>
6791
6792 These statistics are understated. Between the years 1910 and 1962 (the
6793 first year the renewal term was extended), the average term was never
6794 more than thirty-two years, and averaged thirty years. See Landes and
6795 Posner, <span class="quote">«<span class="quote">Indefinitely Renewable Copyright,</span>»</span> loc. cit.
6796 </p></div><div id="ftn.idp8795120" class="footnote"><p><a href="#idp8795120" class="para"><sup class="para">[130] </sup></a>
6797
6798 See Thomas Bender and David Sampliner, <span class="quote">«<span class="quote">Poets, Pirates, and the
6799 Creation of American Literature,</span>»</span> 29 <em class="citetitle">New York University Journal of
6800 International Law and Politics</em> 255 (1997), and James Gilraeth, ed.,
6801 Federal Copyright Records, 1790&#8211;1800 (U.S. G.P.O., 1987).
6802
6803 </p></div><div id="ftn.idp8812640" class="footnote"><p><a href="#idp8812640" class="para"><sup class="para">[131] </sup></a>
6804
6805 Jonathan Zittrain, <span class="quote">«<span class="quote">The Copyright Cage,</span>»</span> <em class="citetitle">Legal
6806 Affairs</em>, July/August 2003, available at
6807 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #26</a>.
6808 <a class="indexterm" name="idp8815136"></a>
6809 </p></div><div id="ftn.idp8816864" class="footnote"><p><a href="#idp8816864" class="para"><sup class="para">[132] </sup></a>
6810
6811 Professor Rubenfeld has presented a powerful constitutional argument
6812 about the difference that copyright law should draw (from the
6813 perspective of the First Amendment) between mere <span class="quote">«<span class="quote">copies</span>»</span> and
6814 derivative works. See Jed Rubenfeld, <span class="quote">«<span class="quote">The Freedom of Imagination:
6815 Copyright's Constitutionality,</span>»</span> <em class="citetitle">Yale Law
6816 Journal</em> 112 (2002): 1&#8211;60 (see especially
6817 pp. 53&#8211;59).
6818 <a class="indexterm" name="idp8819072"></a>
6819 </p></div><div id="ftn.idp8833360" class="footnote"><p><a href="#idp8833360" class="para"><sup class="para">[133] </sup></a>
6820
6821 This is a simplification of the law, but not much of one. The law
6822 certainly regulates more than <span class="quote">«<span class="quote">copies</span>»</span>&#8212;a public performance of a
6823 copyrighted song, for example, is regulated even though performance
6824 per se doesn't make a copy; 17 <em class="citetitle">United States Code</em>, section
6825 106(4). And it certainly sometimes doesn't regulate a <span class="quote">«<span class="quote">copy</span>»</span>; 17
6826 <em class="citetitle">United States Code</em>, section 112(a). But the presumption under the
6827 existing law (which regulates <span class="quote">«<span class="quote">copies;</span>»</span> 17 <em class="citetitle">United States Code</em>, section
6828 102) is that if there is a copy, there is a right.
6829 </p></div><div id="ftn.idp8846352" class="footnote"><p><a href="#idp8846352" class="para"><sup class="para">[134] </sup></a>
6830
6831 Thus, my argument is not that in each place that copyright law
6832 extends, we should repeal it. It is instead that we should have a good
6833 argument for its extending where it does, and should not determine its
6834 reach on the basis of arbitrary and automatic changes caused by
6835 technology.
6836 </p></div><div id="ftn.idp8896576" class="footnote"><p><a href="#idp8896576" class="para"><sup class="para">[135] </sup></a>
6837
6838 I don't mean <span class="quote">«<span class="quote">nature</span>»</span> in the sense that it couldn't be different, but
6839 rather that its present instantiation entails a copy. Optical networks
6840 need not make copies of content they transmit, and a digital network
6841 could be designed to delete anything it copies so that the same number
6842 of copies remain.
6843 </p></div><div id="ftn.idp8994096" class="footnote"><p><a href="#idp8994096" class="para"><sup class="para">[136] </sup></a>
6844
6845 See David Lange, <span class="quote">«<span class="quote">Recognizing the Public Domain,</span>»</span> <em class="citetitle">Law and
6846 Contemporary Problems</em> 44 (1981): 172&#8211;73.
6847 </p></div><div id="ftn.idp8996688" class="footnote"><p><a href="#idp8996688" class="para"><sup class="para">[137] </sup></a>
6848
6849 <a class="indexterm" name="idp8997392"></a>
6850 Ibid. See also Vaidhyanathan, <em class="citetitle">Copyrights and
6851 Copywrongs</em>, 1&#8211;3.
6852 </p></div><div id="ftn.idp9036560" class="footnote"><p><a href="#idp9036560" class="para"><sup class="para">[138] </sup></a>
6853
6854 In principle, a contract might impose a requirement on me. I might,
6855 for example, buy a book from you that includes a contract that says I
6856 will read it only three times, or that I promise to read it three
6857 times. But that obligation (and the limits for creating that
6858 obligation) would come from the contract, not from copyright law, and
6859 the obligations of contract would not necessarily pass to anyone who
6860 subsequently acquired the book.
6861 </p></div><div id="ftn.idp9088144" class="footnote"><p><a href="#idp9088144" class="para"><sup class="para">[139] </sup></a>
6862
6863 See Pamela Samuelson, <span class="quote">«<span class="quote">Anticircumvention Rules: Threat to Science,</span>»</span>
6864 <em class="citetitle">Science</em> 293 (2001): 2028; Brendan I. Koerner, <span class="quote">«<span class="quote">Play Dead: Sony Muzzles
6865 the Techies Who Teach a Robot Dog New Tricks,</span>»</span> <em class="citetitle">American Prospect</em>,
6866 January 2002; <span class="quote">«<span class="quote">Court Dismisses Computer Scientists' Challenge to
6867 DMCA,</span>»</span> <em class="citetitle">Intellectual Property Litigation Reporter</em>, 11 December 2001; Bill
6868 Holland, <span class="quote">«<span class="quote">Copyright Act Raising Free-Speech Concerns,</span>»</span> <em class="citetitle">Billboard</em>,
6869 May 2001; Janelle Brown, <span class="quote">«<span class="quote">Is the RIAA Running Scared?</span>»</span> Salon.com,
6870 April  2001; Electronic Frontier Foundation, <span class="quote">«<span class="quote">Frequently Asked
6871 Questions about <em class="citetitle">Felten and USENIX</em> v. <em class="citetitle">RIAA</em> Legal Case,</span>»</span> available at
6872 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #27</a>.
6873 <a class="indexterm" name="idp9095024"></a>
6874 </p></div><div id="ftn.idp9131936" class="footnote"><p><a href="#idp9131936" class="para"><sup class="para">[140] </sup></a>
6875
6876 <a class="indexterm" name="idp9132672"></a>
6877 <em class="citetitle">Sony Corporation of America</em> v. <em class="citetitle">Universal City Studios, Inc</em>., 464 U.S. 417,
6878 455 fn. 27 (1984). Rogers never changed his view about the VCR. See
6879 James Lardner, <em class="citetitle">Fast Forward: Hollywood, the Japanese, and the Onslaught of
6880 the VCR</em> (New York: W. W. Norton, 1987), 270&#8211;71.
6881 <a class="indexterm" name="idp8998688"></a>
6882 </p></div><div id="ftn.idp9158784" class="footnote"><p><a href="#idp9158784" class="para"><sup class="para">[141] </sup></a>
6883
6884 For an early and prescient analysis, see Rebecca Tushnet, <span class="quote">«<span class="quote">Legal Fictions,
6885 Copyright, Fan Fiction, and a New Common Law,</span>»</span> <em class="citetitle">Loyola of Los Angeles
6886 Entertainment Law Journal</em> 17 (1997): 651.
6887 </p></div><div id="ftn.idp9175360" class="footnote"><p><a href="#idp9175360" class="para"><sup class="para">[142] </sup></a>
6888
6889 FCC Oversight: Hearing Before the Senate Commerce, Science and
6890 Transportation Committee, 108th Cong., 1st sess. (22 May 2003)
6891 (statement of Senator John McCain).  </p></div><div id="ftn.idp9176576" class="footnote"><p><a href="#idp9176576" class="para"><sup class="para">[143] </sup></a>
6892
6893 Lynette Holloway, <span class="quote">«<span class="quote">Despite a Marketing Blitz, CD Sales Continue to
6894 Slide,</span>»</span> <em class="citetitle">New York Times</em>, 23 December 2002.
6895 </p></div><div id="ftn.idp9178704" class="footnote"><p><a href="#idp9178704" class="para"><sup class="para">[144] </sup></a>
6896
6897 Molly Ivins, <span class="quote">«<span class="quote">Media Consolidation Must Be Stopped,</span>»</span> <em class="citetitle">Charleston Gazette</em>,
6898 31 May 2003.
6899 </p></div><div id="ftn.idp9186048" class="footnote"><p><a href="#idp9186048" class="para"><sup class="para">[145] </sup></a>
6900
6901 James Fallows, <span class="quote">«<span class="quote">The Age of Murdoch,</span>»</span> <em class="citetitle">Atlantic Monthly</em> (September
6902 2003): 89.
6903 <a class="indexterm" name="idp9188160"></a>
6904 </p></div><div id="ftn.idp9198640" class="footnote"><p><a href="#idp9198640" class="para"><sup class="para">[146] </sup></a>
6905
6906 Leonard Hill, <span class="quote">«<span class="quote">The Axis of Access,</span>»</span> remarks before Weidenbaum Center
6907 Forum, <span class="quote">«<span class="quote">Entertainment Economics: The Movie Industry,</span>»</span> St. Louis,
6908 Missouri, 3 April 2003 (transcript of prepared remarks available at
6909 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #28</a>;
6910 for the Lear story, not included in the prepared remarks, see
6911 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #29</a>).
6912 </p></div><div id="ftn.idp9205248" class="footnote"><p><a href="#idp9205248" class="para"><sup class="para">[147] </sup></a>
6913
6914 NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media
6915 Ownership Before the Senate Commerce Committee, 108th Cong., 1st
6916 sess. (2003) (testimony of Gene Kimmelman on behalf of Consumers Union
6917 and the Consumer Federation of America), available at
6918 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #30</a>. Kimmelman
6919 quotes Victoria Riskin, president of Writers Guild of America, West,
6920 in her Remarks at FCC En Banc Hearing, Richmond, Virginia, 27 February
6921 2003.
6922 </p></div><div id="ftn.idp9207792" class="footnote"><p><a href="#idp9207792" class="para"><sup class="para">[148] </sup></a>
6923
6924 Ibid.
6925 </p></div><div id="ftn.idp9214144" class="footnote"><p><a href="#idp9214144" class="para"><sup class="para">[149] </sup></a>
6926
6927 <span class="quote">«<span class="quote">Barry Diller Takes on Media Deregulation,</span>»</span> <em class="citetitle">Now with Bill Moyers</em>, Bill
6928 Moyers, 25 April 2003, edited transcript available at
6929 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #31</a>.
6930 </p></div><div id="ftn.idp9219808" class="footnote"><p><a href="#idp9219808" class="para"><sup class="para">[150] </sup></a>
6931
6932 Clayton M. Christensen, <em class="citetitle">The Innovator's Dilemma: The
6933 Revolutionary National Bestseller that Changed the Way We Do Business</em>
6934 (Cambridge: Harvard Business School Press, 1997). Christensen
6935 acknowledges that the idea was first suggested by Dean Kim Clark. See
6936 Kim B. Clark, <span class="quote">«<span class="quote">The Interaction of Design Hierarchies and Market
6937 Concepts in Technological Evolution,</span>»</span> <em class="citetitle">Research Policy</em> 14 (1985):
6938 235&#8211;51. For a more recent study, see Richard Foster and Sarah
6939 Kaplan, <em class="citetitle">Creative Destruction: Why Companies That Are Built to Last
6940 Underperform the Market&#8212;and How to Successfully Transform Them</em>
6941 (New York: Currency/Doubleday, 2001).  </p></div><div id="ftn.idp9243232" class="footnote"><p><a href="#idp9243232" class="para"><sup class="para">[151] </sup></a>
6942
6943 <a class="indexterm" name="idp9243968"></a>
6944 <a class="indexterm" name="idp9244720"></a>
6945 <a class="indexterm" name="idp9245536"></a>
6946 <a class="indexterm" name="idp9246368"></a>
6947 <a class="indexterm" name="idp9247200"></a>
6948 <a class="indexterm" name="idp9248016"></a>
6949 <a class="indexterm" name="idp9248800"></a>
6950 The Marijuana Policy Project, in February 2003, sought to place ads
6951 that directly responded to the Nick and Norm series on stations within
6952 the Washington, D.C., area. Comcast rejected the ads as <span class="quote">«<span class="quote">against
6953 [their] policy.</span>»</span>  The local NBC affiliate, WRC, rejected the ads
6954 without reviewing them. The local ABC affiliate, WJOA, originally
6955 agreed to run the ads and accepted payment to do so, but later decided
6956 not to run the ads and returned the collected fees. Interview with
6957 Neal Levine, 15 October 2003.  These restrictions are, of course, not
6958 limited to drug policy. See, for example, Nat Ives, <span class="quote">«<span class="quote">On the
6959 Issue of an Iraq War, Advocacy Ads Meet with Rejection from TV
6960 Networks,</span>»</span> <em class="citetitle">New York Times</em>, 13 March
6961 2003, C4.  Outside of election-related air time there is very little
6962 that the FCC or the courts are willing to do to even the playing
6963 field. For a general overview, see Rhonda Brown, <span class="quote">«<span class="quote">Ad Hoc Access:
6964 The Regulation of Editorial Advertising on Television and
6965 Radio,</span>»</span> <em class="citetitle">Yale Law and Policy Review</em> 6
6966 (1988): 449&#8211;79, and for a more recent summary of the stance of
6967 the FCC and the courts, see <em class="citetitle">Radio-Television News Directors
6968 Association</em> v. <em class="citetitle">FCC</em>, 184 F. 3d 872
6969 (D.C. Cir. 1999). Municipal authorities exercise the same authority as
6970 the networks. In a recent example from San Francisco, the San
6971 Francisco transit authority rejected an ad that criticized its Muni
6972 diesel buses. Phillip Matier and Andrew Ross, <span class="quote">«<span class="quote">Antidiesel Group
6973 Fuming After Muni Rejects Ad,</span>»</span> SFGate.com, 16 June 2003,
6974 available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
6975 #32</a>. The ground was that the criticism was <span class="quote">«<span class="quote">too
6976 controversial.</span>»</span>
6977 </p></div><div id="ftn.idp9271088" class="footnote"><p><a href="#idp9271088" class="para"><sup class="para">[152] </sup></a>
6978
6979 <a class="indexterm" name="idp9272160"></a>
6980 Siva Vaidhyanathan captures a similar point in his <span class="quote">«<span class="quote">four surrenders</span>»</span> of
6981 copyright law in the digital age. See Vaidhyanathan, 159&#8211;60.
6982 </p></div><div id="ftn.idp9313552" class="footnote"><p><a href="#idp9313552" class="para"><sup class="para">[153] </sup></a>
6983
6984 <a class="indexterm" name="idp9314288"></a>
6985 It was the single most important contribution of the legal realist
6986 movement to demonstrate that all property rights are always crafted to
6987 balance public and private interests. See Thomas C. Grey, <span class="quote">«<span class="quote">The
6988 Disintegration of Property,</span>»</span> in <em class="citetitle">Nomos XXII: Property</em>, J. Roland
6989 Pennock and John W.  Chapman, eds. (New York: New York University
6990 Press, 1980).
6991 </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. Chimera</h2></div></div></div><a class="indexterm" name="idxchimera"></a><a class="indexterm" name="idxwells"></a><a class="indexterm" name="idxtcotb"></a><p>
6992 <span class="strong"><strong>In a well-known</strong></span> short story by
6993 H. G. Wells, a mountain climber named Nunez trips (literally, down an
6994 ice slope) into an unknown and isolated valley in the Peruvian
6995 Andes.<a href="#ftn.idp9335968" class="footnote" name="idp9335968"><sup class="footnote">[154]</sup></a>
6996 The valley is extraordinarily beautiful, with <span class="quote">«<span class="quote">sweet water, pasture,
6997 an even climate, slopes of rich brown soil with tangles of a shrub
6998 that bore an excellent fruit.</span>»</span> But the villagers are all blind. Nunez
6999 takes this as an opportunity. <span class="quote">«<span class="quote">In the Country of the Blind,</span>»</span> he tells
7000 himself, <span class="quote">«<span class="quote">the One-Eyed Man is King.</span>»</span>  So he resolves to live with the
7001 villagers to explore life as a king.
7002 </p><p>
7003 Things don't go quite as he planned. He tries to explain the idea of
7004 sight to the villagers. They don't understand. He tells them they are
7005 <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.
7006 Indeed, as they increasingly notice the things he can't do (hear the
7007 sound of grass being stepped on, for example), they increasingly try
7008 to control him. He, in turn, becomes increasingly frustrated. <span class="quote">«<span class="quote">`You
7009 don't understand,' he cried, in a voice that was meant to be great and
7010 resolute, and which broke. `You are blind and I can see. Leave me
7011 alone!'</span>»</span>
7012 </p><p>
7013
7014 The villagers don't leave him alone. Nor do they see (so to speak) the
7015 virtue of his special power. Not even the ultimate target of his
7016 affection, a young woman who to him seems <span class="quote">«<span class="quote">the most beautiful thing in
7017 the whole of creation,</span>»</span> understands the beauty of sight. Nunez's
7018 description of what he sees <span class="quote">«<span class="quote">seemed to her the most poetical of
7019 fancies, and she listened to his description of the stars and the
7020 mountains and her own sweet white-lit beauty as though it was a guilty
7021 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
7022 only half understand, but she was mysteriously delighted.</span>»</span>
7023 </p><p>
7024 When Nunez announces his desire to marry his <span class="quote">«<span class="quote">mysteriously delighted</span>»</span>
7025 love, the father and the village object. <span class="quote">«<span class="quote">You see, my dear,</span>»</span> her
7026 father instructs, <span class="quote">«<span class="quote">he's an idiot. He has delusions. He can't do
7027 anything right.</span>»</span> They take Nunez to the village doctor.
7028 </p><p>
7029 After a careful examination, the doctor gives his opinion. <span class="quote">«<span class="quote">His brain
7030 is affected,</span>»</span> he reports.
7031 </p><p>
7032 <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
7033 called the eyes &#8230; are diseased &#8230; in such a way as to affect
7034 his brain.</span>»</span>
7035 </p><p>
7036 The doctor continues: <span class="quote">«<span class="quote">I think I may say with reasonable certainty
7037 that in order to cure him completely, all that we need to do is a
7038 simple and easy surgical operation&#8212;namely, to remove these
7039 irritant bodies [the eyes].</span>»</span>
7040 </p><p>
7041 <span class="quote">«<span class="quote">Thank Heaven for science!</span>»</span> says the father to the doctor. They inform
7042 Nunez of this condition necessary for him to be allowed his bride.
7043 (You'll have to read the original to learn what happens in the end. I
7044 believe in free culture, but never in giving away the end of a story.)
7045 </p><p>
7046 <span class="strong"><strong>It sometimes</strong></span> happens that the eggs
7047 of twins fuse in the mother's womb. That fusion produces a
7048 <span class="quote">«<span class="quote">chimera.</span>»</span> A chimera is a single creature with two sets
7049 of DNA. The DNA in the blood, for example, might be different from the
7050 DNA of the skin. This possibility is an underused
7051
7052
7053 plot for murder mysteries. <span class="quote">«<span class="quote">But the DNA shows with 100 percent
7054 certainty that she was not the person whose blood was at the
7055 scene. &#8230;</span>»</span>
7056 </p><a class="indexterm" name="idp9353792"></a><a class="indexterm" name="idp9354896"></a><p>
7057 Before I had read about chimeras, I would have said they were
7058 impossible.  A single person can't have two sets of DNA. The very idea
7059 of DNA is that it is the code of an individual. Yet in fact, not only
7060 can two individuals have the same set of DNA (identical twins), but
7061 one person can have two different sets of DNA (a chimera). Our
7062 understanding of a <span class="quote">«<span class="quote">person</span>»</span> should reflect this reality.
7063 </p><p>
7064 The more I work to understand the current struggle over copyright and
7065 culture, which I've sometimes called unfairly, and sometimes not
7066 unfairly enough, <span class="quote">«<span class="quote">the copyright wars,</span>»</span> the more I think we're dealing
7067 with a chimera. For example, in the battle over the question <span class="quote">«<span class="quote">What is
7068 p2p file sharing?</span>»</span> both sides have it right, and both sides have it
7069 wrong.  One side says, <span class="quote">«<span class="quote">File sharing is just like two kids taping each
7070 others' records&#8212;the sort of thing we've been doing for the last
7071 thirty years without any question at all.</span>»</span> That's true, at least in
7072 part. When I tell my best friend to try out a new CD that I've bought,
7073 but rather than just send the CD, I point him to my p2p server, that
7074 is, in all relevant respects, just like what every executive in every
7075 recording company no doubt did as a kid: sharing music.
7076 </p><p>
7077 But the description is also false in part. For when my p2p server is
7078 on a p2p network through which anyone can get access to my music, then
7079 sure, my friends can get access, but it stretches the meaning of
7080 <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
7081 get access. Whether or not sharing my music with my best friend is
7082 what <span class="quote">«<span class="quote">we have always been allowed to do,</span>»</span> we have not always been
7083 allowed to share music with <span class="quote">«<span class="quote">our ten thousand best friends.</span>»</span>
7084 </p><p>
7085 Likewise, when the other side says, <span class="quote">«<span class="quote">File sharing is just like walking
7086 into a Tower Records and taking a CD off the shelf and walking out
7087 with it,</span>»</span> that's true, at least in part. If, after Lyle Lovett
7088 (finally) releases a new album, rather than buying it, I go to Kazaa
7089 and find a free copy to take, that is very much like stealing a copy
7090 from Tower.
7091 <a class="indexterm" name="idp9363904"></a>
7092 </p><p>
7093
7094
7095 But it is not quite stealing from Tower. After all, when I take a CD
7096 from Tower Records, Tower has one less CD to sell. And when I take a
7097 CD from Tower Records, I get a bit of plastic and a cover, and
7098 something to show on my shelves. (And, while we're at it, we could
7099 also note that when I take a CD from Tower Records, the maximum fine
7100 that might be imposed on me, under California law, at least, is
7101 $1,000.  According to the RIAA, by contrast, if I download a ten-song
7102 CD, I'm liable for $1,500,000 in damages.)
7103 </p><p>
7104 The point is not that it is as neither side describes. The point is
7105 that it is both&#8212;both as the RIAA describes it and as Kazaa
7106 describes it. It is a chimera. And rather than simply denying what the
7107 other side asserts, we need to begin to think about how we should
7108 respond to this chimera. What rules should govern it?
7109 </p><p>
7110 We could respond by simply pretending that it is not a chimera. We
7111 could, with the RIAA, decide that every act of file sharing should be
7112 a felony. We could prosecute families for millions of dollars in
7113 damages just because file sharing occurred on a family computer. And
7114 we can get universities to monitor all computer traffic to make sure
7115 that no computer is used to commit this crime. These responses might
7116 be extreme, but each of them has either been proposed or actually
7117 implemented.<a href="#ftn.idp9367696" class="footnote" name="idp9367696"><sup class="footnote">[155]</sup></a>
7118
7119 </p><a class="indexterm" name="idp9378880"></a><p>
7120 Alternatively, we could respond to file sharing the way many kids act
7121 as though we've responded. We could totally legalize it. Let there be
7122 no copyright liability, either civil or criminal, for making
7123 copyrighted content available on the Net. Make file sharing like
7124 gossip: regulated, if at all, by social norms but not by law.
7125 </p><p>
7126 Either response is possible. I think either would be a mistake.
7127 Rather than embrace one of these two extremes, we should embrace
7128 something that recognizes the truth in both. And while I end this book
7129 with a sketch of a system that does just that, my aim in the next
7130 chapter is to show just how awful it would be for us to adopt the
7131 zero-tolerance extreme. I believe <span class="emphasis"><em>either</em></span> extreme
7132 would be worse than a reasonable alternative.  But I believe the
7133 zero-tolerance solution would be the worse of the two extremes.
7134 </p><p>
7135
7136
7137 Yet zero tolerance is increasingly our government's policy. In the
7138 middle of the chaos that the Internet has created, an extraordinary
7139 land grab is occurring. The law and technology are being shifted to
7140 give content holders a kind of control over our culture that they have
7141 never had before. And in this extremism, many an opportunity for new
7142 innovation and new creativity will be lost.
7143 </p><p>
7144 I'm not talking about the opportunities for kids to <span class="quote">«<span class="quote">steal</span>»</span> music. My
7145 focus instead is the commercial and cultural innovation that this war
7146 will also kill. We have never seen the power to innovate spread so
7147 broadly among our citizens, and we have just begun to see the
7148 innovation that this power will unleash. Yet the Internet has already
7149 seen the passing of one cycle of innovation around technologies to
7150 distribute content. The law is responsible for this passing. As the
7151 vice president for global public policy at one of these new
7152 innovators, eMusic.com, put it when criticizing the DMCA's added
7153 protection for copyrighted material,
7154 </p><div class="blockquote"><blockquote class="blockquote"><p>
7155 eMusic opposes music piracy. We are a distributor of copyrighted
7156 material, and we want to protect those rights.
7157 </p><p>
7158 But building a technology fortress that locks in the clout of the
7159 major labels is by no means the only way to protect copyright
7160 interests, nor is it necessarily the best. It is simply too early to
7161 answer that question. Market forces operating naturally may very well
7162 produce a totally different industry model.
7163 </p><p>
7164 This is a critical point. The choices that industry sectors make
7165 with respect to these systems will in many ways directly shape the
7166 market for digital media and the manner in which digital media
7167 are distributed. This in turn will directly influence the options
7168 that are available to consumers, both in terms of the ease with
7169 which they will be able to access digital media and the equipment
7170 that they will require to do so. Poor choices made this early in the
7171 game will retard the growth of this market, hurting everyone's
7172 interests.<a href="#ftn.idp9387120" class="footnote" name="idp9387120"><sup class="footnote">[156]</sup></a>
7173 </p></blockquote></div><p>
7174 In April 2001, eMusic.com was purchased by Vivendi Universal,
7175 one of <span class="quote">«<span class="quote">the major labels.</span>»</span> Its position on these matters has now
7176 changed.
7177 <a class="indexterm" name="idp9389792"></a>
7178 </p><p>
7179 Reversing our tradition of tolerance now will not merely quash
7180 piracy. It will sacrifice values that are important to this culture,
7181 and will kill opportunities that could be extraordinarily valuable.
7182 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp9335968" class="footnote"><p><a href="#idp9335968" class="para"><sup class="para">[154] </sup></a>
7183
7184 H. G. Wells, <span class="quote">«<span class="quote">The Country of the Blind</span>»</span> (1904, 1911). See H. G. Wells,
7185 <em class="citetitle">The Country of the Blind and Other Stories</em>, Michael Sherborne, ed. (New
7186 York: Oxford University Press, 1996).
7187 </p></div><div id="ftn.idp9367696" class="footnote"><p><a href="#idp9367696" class="para"><sup class="para">[155] </sup></a>
7188
7189 <a class="indexterm" name="idp9368400"></a>
7190 For an excellent summary, see the report prepared by GartnerG2 and the
7191 Berkman Center for Internet and Society at Harvard Law School,
7192 <span class="quote">«<span class="quote">Copyright and Digital Media in a Post-Napster World,</span>»</span> 27 June 2003,
7193 available at
7194 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
7195 #33</a>. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
7196 (D-Calif.) have introduced a bill that would treat unauthorized
7197 on-line copying as a felony offense with punishments ranging as high
7198 as five years imprisonment; see Jon Healey, <span class="quote">«<span class="quote">House Bill Aims to Up
7199 Stakes on Piracy,</span>»</span> <em class="citetitle">Los Angeles Times</em>, 17 July 2003, available at
7200 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #34</a>. Civil
7201 penalties are currently set at $150,000 per copied song. For a recent
7202 (and unsuccessful) legal challenge to the RIAA's demand that an ISP
7203 reveal the identity of a user accused of sharing more than 600 songs
7204 through a family computer, see <em class="citetitle">RIAA</em> v. <em class="citetitle">Verizon Internet Services (In
7205 re. Verizon Internet Services)</em>, 240 F.  Supp. 2d 24
7206 (D.D.C. 2003). Such a user could face liability ranging as high as $90
7207 million. Such astronomical figures furnish the RIAA with a powerful
7208 arsenal in its prosecution of file sharers. Settlements ranging from
7209 $12,000 to $17,500 for four students accused of heavy file sharing on
7210 university networks must have seemed a mere pittance next to the $98
7211 billion the RIAA could seek should the matter proceed to court. See
7212 Elizabeth Young, <span class="quote">«<span class="quote">Downloading Could Lead to Fines,</span>»</span> redandblack.com,
7213 August 2003, available at
7214 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #35</a>. For an
7215 example of the RIAA's targeting of student file sharing, and of the
7216 subpoenas issued to universities to reveal student file-sharer
7217 identities, see James Collins, <span class="quote">«<span class="quote">RIAA Steps Up Bid to Force BC, MIT to
7218 Name Students,</span>»</span> <em class="citetitle">Boston Globe</em>, 8 August 2003, D3, available at
7219 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #36</a>.
7220 <a class="indexterm" name="idp9376992"></a>
7221 <a class="indexterm" name="idp9377808"></a>
7222 </p></div><div id="ftn.idp9387120" class="footnote"><p><a href="#idp9387120" class="para"><sup class="para">[156] </sup></a>
7223
7224 WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital
7225 Entertainment on the Internet and Other Media: Hearing Before the
7226 Subcommittee on Telecommunications, Trade, and Consumer Protection,
7227 House Committee on Commerce, 106th Cong. 29 (1999) (statement of Peter
7228 Harter, vice president, Global Public Policy and Standards,
7229 EMusic.com), available in LEXIS, Federal Document Clearing House
7230 Congressional Testimony File.  </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="harms"></a>Chapter 12. Harms</h2></div></div></div><p>
7231 <span class="strong"><strong>To fight</strong></span> <span class="quote">«<span class="quote">piracy,</span>»</span> to
7232 protect <span class="quote">«<span class="quote">property,</span>»</span> the content industry has launched a
7233 war. Lobbying and lots of campaign contributions have now brought the
7234 government into this war. As with any war, this one will have both
7235 direct and collateral damage. As with any war of prohibition, these
7236 damages will be suffered most by our own people.
7237 </p><p>
7238 My aim so far has been to describe the consequences of this war, in
7239 particular, the consequences for <span class="quote">«<span class="quote">free culture.</span>»</span> But my aim now is to
7240 extend this description of consequences into an argument. Is this war
7241 justified?
7242 </p><p>
7243 In my view, it is not. There is no good reason why this time, for the
7244 first time, the law should defend the old against the new, just when the
7245 power of the property called <span class="quote">«<span class="quote">intellectual property</span>»</span> is at its greatest in
7246 our history.
7247 </p><a class="indexterm" name="idp9397536"></a><a class="indexterm" name="idp9398352"></a><p>
7248 Yet <span class="quote">«<span class="quote">common sense</span>»</span> does not see it this way. Common sense is still on
7249 the side of the Causbys and the content industry. The extreme claims
7250 of control in the name of property still resonate; the uncritical
7251 rejection of <span class="quote">«<span class="quote">piracy</span>»</span> still has play.
7252 </p><a class="indexterm" name="idp9400672"></a><p>
7253
7254 There will be many consequences of continuing this war. I want to
7255 describe just three. All three might be said to be unintended. I am quite
7256 confident the third is unintended. I'm less sure about the first two. The
7257 first two protect modern RCAs, but there is no Howard Armstrong in
7258 the wings to fight today's monopolists of culture.
7259 </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>
7260 In the next ten years we will see an explosion of digital
7261 technologies.  These technologies will enable almost anyone to capture
7262 and share content. Capturing and sharing content, of course, is what
7263 humans have done since the dawn of man. It is how we learn and
7264 communicate. But capturing and sharing through digital technology is
7265 different. The fidelity and power are different. You could send an
7266 e-mail telling someone about a joke you saw on Comedy Central, or you
7267 could send the clip. You could write an essay about the
7268 inconsistencies in the arguments of the politician you most love to
7269 hate, or you could make a short film that puts statement against
7270 statement. You could write a poem to express your love, or you could
7271 weave together a string&#8212;a mash-up&#8212; of songs from your
7272 favorite artists in a collage and make it available on the Net.
7273 </p><p>
7274 This digital <span class="quote">«<span class="quote">capturing and sharing</span>»</span> is in part an extension of the
7275 capturing and sharing that has always been integral to our culture,
7276 and in part it is something new. It is continuous with the Kodak, but
7277 it explodes the boundaries of Kodak-like technologies. The technology
7278 of digital <span class="quote">«<span class="quote">capturing and sharing</span>»</span> promises a world of extraordinarily
7279 diverse creativity that can be easily and broadly shared. And as that
7280 creativity is applied to democracy, it will enable a broad range of
7281 citizens to use technology to express and criticize and contribute to
7282 the culture all around.
7283 </p><p>
7284 Technology has thus given us an opportunity to do something with
7285 culture that has only ever been possible for individuals in small groups,
7286
7287
7288
7289 isolated from others. Think about an old man telling a story to a
7290 collection of neighbors in a small town. Now imagine that same
7291 storytelling extended across the globe.
7292 </p><p>
7293 Yet all this is possible only if the activity is presumptively legal. In
7294 the current regime of legal regulation, it is not. Forget file sharing for
7295 a moment. Think about your favorite amazing sites on the Net. Web
7296 sites that offer plot summaries from forgotten television shows; sites
7297 that catalog cartoons from the 1960s; sites that mix images and sound
7298 to criticize politicians or businesses; sites that gather newspaper articles
7299 on remote topics of science or culture. There is a vast amount of creative
7300 work spread across the Internet. But as the law is currently crafted, this
7301 work is presumptively illegal.
7302 </p><a class="indexterm" name="idp9408832"></a><a class="indexterm" name="idp9409616"></a><a class="indexterm" name="idp9410736"></a><a class="indexterm" name="idp9411856"></a><a class="indexterm" name="idp9412688"></a><p>
7303 That presumption will increasingly chill creativity, as the
7304 examples of extreme penalties for vague infringements continue to
7305 proliferate. It is impossible to get a clear sense of what's allowed
7306 and what's not, and at the same time, the penalties for crossing the
7307 line are astonishingly harsh.  The four students who were threatened
7308 by the RIAA (Jesse Jordan of chapter <a class="xref" href="#catalogs" title="Chapter 3. Catalogs">3</a> was just one) were threatened with a
7309 $98 billion lawsuit for building search engines that permitted songs
7310 to be copied. Yet World-Com&#8212;which defrauded investors of $11
7311 billion, resulting in a loss to investors in market capitalization of
7312 over $200 billion&#8212;received a fine of a mere $750
7313 million.<a href="#ftn.idp9415408" class="footnote" name="idp9415408"><sup class="footnote">[157]</sup></a>
7314 And under legislation being pushed in Congress right now, a doctor who
7315 negligently removes the wrong leg in an operation would be liable for
7316 no more than $250,000 in damages for pain and
7317 suffering.<a href="#ftn.idp9419296" class="footnote" name="idp9419296"><sup class="footnote">[158]</sup></a>
7318 Can common sense recognize the absurdity in a world where
7319 the maximum fine for downloading two songs off the Internet is more
7320 than the fine for a doctor's negligently butchering a patient?
7321 </p><a class="indexterm" name="idp9424144"></a><p>
7322 The consequence of this legal uncertainty, tied to these extremely
7323 high penalties, is that an extraordinary amount of creativity will
7324 either never be exercised, or never be exercised in the open. We drive
7325 this creative process underground by branding the modern-day Walt
7326 Disneys <span class="quote">«<span class="quote">pirates.</span>»</span> We make it impossible for businesses to rely upon a
7327 public domain, because the boundaries of the public domain are
7328 designed to
7329
7330
7331 be unclear. It never pays to do anything except pay for the right
7332 to create, and hence only those who can pay are allowed to create. As
7333 was the case in the Soviet Union, though for very different reasons,
7334 we will begin to see a world of underground art&#8212;not because the
7335 message is necessarily political, or because the subject is
7336 controversial, but because the very act of creating the art is legally
7337 fraught. Already, exhibits of <span class="quote">«<span class="quote">illegal art</span>»</span> tour the United
7338 States.<a href="#ftn.idp9427296" class="footnote" name="idp9427296"><sup class="footnote">[159]</sup></a>
7339  In what does their <span class="quote">«<span class="quote">illegality</span>»</span> consist?
7340 In the act of mixing the culture around us with an expression that is
7341 critical or reflective.
7342 </p><a class="indexterm" name="idp9431232"></a><p>
7343 Part of the reason for this fear of illegality has to do with the
7344 changing law. I described that change in detail in chapter
7345 <a class="xref" href="#property-i" title="Chapter 10. «Property»">10</a>. But an
7346 even bigger part has to do with the increasing ease with which
7347 infractions can be tracked. As users of file-sharing systems
7348 discovered in 2002, it is a trivial matter for copyright owners to get
7349 courts to order Internet service providers to reveal who has what
7350 content. It is as if your cassette tape player transmitted a list of
7351 the songs that you played in the privacy of your own home that anyone
7352 could tune into for whatever reason they chose.
7353 </p><a class="indexterm" name="idp9434048"></a><p>
7354 Never in our history has a painter had to worry about whether
7355 his painting infringed on someone else's work; but the modern-day
7356 painter, using the tools of Photoshop, sharing content on the Web,
7357 must worry all the time. Images are all around, but the only safe images
7358 to use in the act of creation are those purchased from Corbis or another
7359 image farm. And in purchasing, censoring happens. There is a free
7360 market in pencils; we needn't worry about its effect on creativity. But
7361 there is a highly regulated, monopolized market in cultural icons; the
7362 right to cultivate and transform them is not similarly free.
7363 </p><p>
7364 Lawyers rarely see this because lawyers are rarely empirical. As I
7365 described in chapter
7366 <a class="xref" href="#recorders" title="Chapter 7. Recorders">7</a>, in
7367 response to the story about documentary filmmaker Jon Else, I have
7368 been lectured again and again by lawyers who insist Else's use was
7369 fair use, and hence I am wrong to say that the law regulates such a
7370 use.
7371 </p><p>
7372
7373
7374 But fair use in America simply means the right to hire a lawyer to
7375 defend your right to create. And as lawyers love to forget, our system
7376 for defending rights such as fair use is astonishingly bad&#8212;in
7377 practically every context, but especially here. It costs too much, it
7378 delivers too slowly, and what it delivers often has little connection
7379 to the justice underlying the claim. The legal system may be tolerable
7380 for the very rich.  For everyone else, it is an embarrassment to a
7381 tradition that prides itself on the rule of law.
7382 </p><p>
7383 Judges and lawyers can tell themselves that fair use provides adequate
7384 <span class="quote">«<span class="quote">breathing room</span>»</span> between regulation by the law and the access the law
7385 should allow. But it is a measure of how out of touch our legal system
7386 has become that anyone actually believes this. The rules that
7387 publishers impose upon writers, the rules that film distributors
7388 impose upon filmmakers, the rules that newspapers impose upon
7389 journalists&#8212; these are the real laws governing creativity. And
7390 these rules have little relationship to the <span class="quote">«<span class="quote">law</span>»</span> with which judges
7391 comfort themselves.
7392 </p><p>
7393 For in a world that threatens $150,000 for a single willful
7394 infringement of a copyright, and which demands tens of thousands of
7395 dollars to even defend against a copyright infringement claim, and
7396 which would never return to the wrongfully accused defendant anything
7397 of the costs she suffered to defend her right to speak&#8212;in that
7398 world, the astonishingly broad regulations that pass under the name
7399 <span class="quote">«<span class="quote">copyright</span>»</span> silence speech and creativity. And in that world, it takes
7400 a studied blindness for people to continue to believe they live in a
7401 culture that is free.
7402 </p><p>
7403 As Jed Horovitz, the businessman behind Video Pipeline, said to me,
7404 </p><div class="blockquote"><blockquote class="blockquote"><p>
7405 We're losing [creative] opportunities right and left. Creative people
7406 are being forced not to express themselves. Thoughts are not being
7407 expressed. And while a lot of stuff may [still] be created, it still
7408 won't get distributed. Even if the stuff gets made &#8230; you're not
7409 going to get it distributed in the mainstream media unless
7410
7411 you've got a little note from a lawyer saying, <span class="quote">«<span class="quote">This has been
7412 cleared.</span>»</span> You're not even going to get it on PBS without that kind of
7413 permission. That's the point at which they control it.
7414 </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>
7415 The story of the last section was a crunchy-lefty
7416 story&#8212;creativity quashed, artists who can't speak, yada yada
7417 yada. Maybe that doesn't get you going. Maybe you think there's enough
7418 weird art out there, and enough expression that is critical of what
7419 seems to be just about everything.  And if you think that, you might
7420 think there's little in this story to worry you.
7421 </p><a class="indexterm" name="idxmarketconstraints2"></a><p>
7422 But there's an aspect of this story that is not lefty in any sense.
7423 Indeed, it is an aspect that could be written by the most extreme
7424 promarket ideologue. And if you're one of these sorts (and a special
7425 one at that, <a class="xref" href="#innovators" title="12.2. Constraining Innovators"></a> pages into a book like this), then you
7426 can see this other aspect by substituting <span class="quote">«<span class="quote">free market</span>»</span>
7427 every place I've spoken of <span class="quote">«<span class="quote">free culture.</span>»</span> The point is
7428 the same, even if the interests affecting culture are more
7429 fundamental.
7430 </p><p>
7431 The charge I've been making about the regulation of culture is the
7432 same charge free marketers make about regulating markets. Everyone, of
7433 course, concedes that some regulation of markets is necessary&#8212;at
7434 a minimum, we need rules of property and contract, and courts to
7435 enforce both. Likewise, in this culture debate, everyone concedes that
7436 at least some framework of copyright is also required. But both
7437 perspectives vehemently insist that just because some regulation is
7438 good, it doesn't follow that more regulation is better. And both
7439 perspectives are constantly attuned to the ways in which regulation
7440 simply enables the powerful industries of today to protect themselves
7441 against the competitors of tomorrow.
7442 </p><a class="indexterm" name="idp9456496"></a><a class="indexterm" name="idp9458688"></a><a class="indexterm" name="idp9459504"></a><p>
7443 This is the single most dramatic effect of the shift in regulatory
7444
7445 strategy that I described in chapter <a class="xref" href="#property-i" title="Chapter 10. «Property»">10</a>. The consequence of this massive
7446 threat of liability tied to the murky boundaries of copyright law is
7447 that innovators who want to innovate in this space can safely innovate
7448 only if they have the sign-off from last generation's dominant
7449 industries.  That lesson has been taught through a series of cases
7450 that were designed and executed to teach venture capitalists a
7451 lesson. That lesson&#8212;what former Napster CEO Hank Barry calls a
7452 <span class="quote">«<span class="quote">nuclear pall</span>»</span> that has fallen over the Valley&#8212;has been learned.
7453 </p><a class="indexterm" name="idp9463072"></a><a class="indexterm" name="idp9463712"></a><p>
7454 Consider one example to make the point, a story whose beginning
7455 I told in <em class="citetitle">The Future of Ideas</em> and which has progressed in a way that
7456 even I (pessimist extraordinaire) would never have predicted.
7457 </p><a class="indexterm" name="idxmpcom"></a><a class="indexterm" name="idxmympcom"></a><a class="indexterm" name="idp9468672"></a><p>
7458 In 1997, Michael Roberts launched a company called MP3.com.  MP3.com
7459 was keen to remake the music business. Their goal was not just to
7460 facilitate new ways to get access to content. Their goal was also to
7461 facilitate new ways to create content. Unlike the major labels,
7462 MP3.com offered creators a venue to distribute their creativity,
7463 without demanding an exclusive engagement from the creators.
7464 </p><a class="indexterm" name="idp9470288"></a><a class="indexterm" name="idxcdsprefdata"></a><p>
7465 To make this system work, however, MP3.com needed a reliable way to
7466 recommend music to its users. The idea behind this alternative was to
7467 leverage the revealed preferences of music listeners to recommend new
7468 artists. If you like Lyle Lovett, you're likely to enjoy Bonnie
7469 Raitt. And so on.
7470 </p><p>
7471 This idea required a simple way to gather data about user preferences.
7472 MP3.com came up with an extraordinarily clever way to gather this
7473 preference data. In January 2000, the company launched a service
7474 called my.mp3.com. Using software provided by MP3.com, a user would
7475 sign into an account and then insert into her computer a CD. The
7476 software would identify the CD, and then give the user access to that
7477 content.  So, for example, if you inserted a CD by Jill Sobule, then
7478 wherever you were&#8212;at work or at home&#8212;you could get access
7479 to that music once you signed into your account. The system was
7480 therefore a kind of music-lockbox.
7481 </p><p>
7482 No doubt some could use this system to illegally copy content. But
7483 that opportunity existed with or without MP3.com. The aim of the
7484
7485
7486 my.mp3.com service was to give users access to their own content, and
7487 as a by-product, by seeing the content they already owned, to discover
7488 the kind of content the users liked.
7489 </p><a class="indexterm" name="idp9475728"></a><p>
7490 To make this system function, however, MP3.com needed to copy 50,000
7491 CDs to a server. (In principle, it could have been the user who
7492 uploaded the music, but that would have taken a great deal of time,
7493 and would have produced a product of questionable quality.) It
7494 therefore purchased 50,000 CDs from a store, and started the process
7495 of making copies of those CDs. Again, it would not serve the content
7496 from those copies to anyone except those who authenticated that they
7497 had a copy of the CD they wanted to access. So while this was 50,000
7498 copies, it was 50,000 copies directed at giving customers something
7499 they had already bought.
7500 </p><a class="indexterm" name="idxvivendiuniversal"></a><a class="indexterm" name="idp9479536"></a><a class="indexterm" name="idp9480672"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitsinrecordingindustry3"></a><a class="indexterm" name="idp9483728"></a><a class="indexterm" name="idp9484848"></a><a class="indexterm" name="idp9485952"></a><p>
7501 Nine days after MP3.com launched its service, the five major labels,
7502 headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled
7503 with four of the five. Nine months later, a federal judge found
7504 MP3.com to have been guilty of willful infringement with respect to
7505 the fifth. Applying the law as it is, the judge imposed a fine against
7506 MP3.com of $118 million. MP3.com then settled with the remaining
7507 plaintiff, Vivendi Universal, paying over $54 million. Vivendi
7508 purchased MP3.com just about a year later.
7509 </p><p>
7510 That part of the story I have told before. Now consider its conclusion.
7511 </p><p>
7512 After Vivendi purchased MP3.com, Vivendi turned around and filed a
7513 malpractice lawsuit against the lawyers who had advised it that they
7514 had a good faith claim that the service they wanted to offer would be
7515 considered legal under copyright law. This lawsuit alleged that it
7516 should have been obvious that the courts would find this behavior
7517 illegal; therefore, this lawsuit sought to punish any lawyer who had
7518 dared to suggest that the law was less restrictive than the labels
7519 demanded.
7520 </p><a class="indexterm" name="idp9489328"></a><p>
7521 The clear purpose of this lawsuit (which was settled for an
7522 unspecified amount shortly after the story was no longer covered in
7523 the press) was to send an unequivocal message to lawyers advising
7524 clients in this
7525
7526 space: It is not just your clients who might suffer if the content
7527 industry directs its guns against them. It is also you. So those of
7528 you who believe the law should be less restrictive should realize that
7529 such a view of the law will cost you and your firm dearly.
7530 </p><a class="indexterm" name="idp9491856"></a><a class="indexterm" name="idp9493072"></a><a class="indexterm" name="idp9494320"></a><a class="indexterm" name="idp9495760"></a><a class="indexterm" name="idp9496576"></a><a class="indexterm" name="idxbmw"></a><a class="indexterm" name="idxcarsmpsoundsystemsin"></a><a class="indexterm" name="idp9500768"></a><a class="indexterm" name="idp9501552"></a><a class="indexterm" name="idp9502368"></a><a class="indexterm" name="idp9503184"></a><a class="indexterm" name="idp9504000"></a><a class="indexterm" name="idp9504816"></a><a class="indexterm" name="idxneedlemanrafe"></a><a class="indexterm" name="idp9507488"></a><a class="indexterm" name="idp9508304"></a><p>
7531 This strategy is not just limited to the lawyers. In April 2003,
7532 Universal and EMI brought a lawsuit against Hummer Winblad, the
7533 venture capital firm (VC) that had funded Napster at a certain stage of
7534 its development, its cofounder (John Hummer), and general partner
7535 (Hank Barry).<a href="#ftn.idp9509680" class="footnote" name="idp9509680"><sup class="footnote">[160]</sup></a>
7536 The claim here, as well, was that the VC should have recognized the
7537 right of the content industry to control how the industry should
7538 develop. They should be held personally liable for funding a company
7539 whose business turned out to be beyond the law. Here again, the aim of
7540 the lawsuit is transparent: Any VC now recognizes that if you fund a
7541 company whose business is not approved of by the dinosaurs, you are at
7542 risk not just in the marketplace, but in the courtroom as well.  Your
7543 investment buys you not only a company, it also buys you a lawsuit.
7544 So extreme has the environment become that even car manufacturers are
7545 afraid of technologies that touch content. In an article in
7546 <em class="citetitle">Business 2.0</em>, Rafe Needleman describes a
7547 discussion with BMW:
7548 </p><div class="blockquote"><blockquote class="blockquote"><p>
7549 I asked why, with all the storage capacity and computer power in
7550 the car, there was no way to play MP3 files. I was told that BMW
7551 engineers in Germany had rigged a new vehicle to play MP3s via
7552 the car's built-in sound system, but that the company's marketing
7553 and legal departments weren't comfortable with pushing this
7554 forward for release stateside. Even today, no new cars are sold in the
7555 United States with bona fide MP3 players. &#8230; <a href="#ftn.idp9443088" class="footnote" name="idp9443088"><sup class="footnote">[161]</sup></a>
7556 </p></blockquote></div><a class="indexterm" name="idp9519664"></a><a class="indexterm" name="idp9520976"></a><a class="indexterm" name="idp9522288"></a><p>
7557 This is the world of the mafia&#8212;filled with <span class="quote">«<span class="quote">your money or your
7558 life</span>»</span> offers, governed in the end not by courts but by the threats
7559 that the law empowers copyright holders to exercise. It is a system
7560 that will obviously and necessarily stifle new innovation. It is hard
7561 enough to start a company. It is impossibly hard if that company is
7562 constantly threatened by litigation.
7563 </p><p>
7564
7565
7566 The point is not that businesses should have a right to start illegal
7567 enterprises. The point is the definition of <span class="quote">«<span class="quote">illegal.</span>»</span> The law is a
7568 mess of uncertainty. We have no good way to know how it should apply
7569 to new technologies. Yet by reversing our tradition of judicial
7570 deference, and by embracing the astonishingly high penalties that
7571 copyright law imposes, that uncertainty now yields a reality which is
7572 far more conservative than is right. If the law imposed the death
7573 penalty for parking tickets, we'd not only have fewer parking tickets,
7574 we'd also have much less driving. The same principle applies to
7575 innovation. If innovation is constantly checked by this uncertain and
7576 unlimited liability, we will have much less vibrant innovation and
7577 much less creativity.
7578 </p><a class="indexterm" name="idp9526736"></a><p>
7579 The point is directly parallel to the crunchy-lefty point about fair
7580 use. Whatever the <span class="quote">«<span class="quote">real</span>»</span> law is, realism about the effect of law in
7581 both contexts is the same. This wildly punitive system of regulation
7582 will systematically stifle creativity and innovation. It will protect
7583 some industries and some creators, but it will harm industry and
7584 creativity generally. Free market and free culture depend upon vibrant
7585 competition.  Yet the effect of the law today is to stifle just this
7586 kind of competition.  The effect is to produce an overregulated
7587 culture, just as the effect of too much control in the market is to
7588 produce an overregulated-regulated market.
7589 </p><p>
7590 The building of a permission culture, rather than a free culture, is
7591 the first important way in which the changes I have described will
7592 burden innovation. A permission culture means a lawyer's
7593 culture&#8212;a culture in which the ability to create requires a call
7594 to your lawyer. Again, I am not antilawyer, at least when they're kept
7595 in their proper place. I am certainly not antilaw. But our profession
7596 has lost the sense of its limits. And leaders in our profession have
7597 lost an appreciation of the high costs that our profession imposes
7598 upon others. The inefficiency of the law is an embarrassment to our
7599 tradition. And while I believe our profession should therefore do
7600 everything it can to make the law more efficient, it should at least
7601 do everything it can to limit the reach of the
7602
7603 law where the law is not doing any good. The transaction costs buried
7604 within a permission culture are enough to bury a wide range of
7605 creativity.  Someone needs to do a lot of justifying to justify that
7606 result.
7607 </p><p>
7608 <span class="strong"><strong>The uncertainty</strong></span> of the law is one
7609 burden on innovation. There is a second burden that operates more
7610 directly. This is the effort by many in the content industry to use
7611 the law to directly regulate the technology of the Internet so that it
7612 better protects their content.
7613 </p><p>
7614 The motivation for this response is obvious. The Internet enables the
7615 efficient spread of content. That efficiency is a feature of the
7616 Internet's design. But from the perspective of the content industry,
7617 this feature is a <span class="quote">«<span class="quote">bug.</span>»</span> The efficient spread of content means that
7618 content distributors have a harder time controlling the distribution
7619 of content.  One obvious response to this efficiency is thus to make
7620 the Internet less efficient. If the Internet enables <span class="quote">«<span class="quote">piracy,</span>»</span> then,
7621 this response says, we should break the kneecaps of the Internet.
7622 </p><a class="indexterm" name="idp9533888"></a><p>
7623 The examples of this form of legislation are many. At the urging of
7624 the content industry, some in Congress have threatened legislation that
7625 would require computers to determine whether the content they access
7626 is protected or not, and to disable the spread of protected content.<a href="#ftn.idp9535248" class="footnote" name="idp9535248"><sup class="footnote">[162]</sup></a>
7627 Congress has already launched proceedings to explore a mandatory
7628 <span class="quote">«<span class="quote">broadcast flag</span>»</span> that would be required on any device capable of
7629 transmitting digital video (i.e., a computer), and that would disable
7630 the copying of any content that is marked with a broadcast flag. Other
7631 members of Congress have proposed immunizing content providers from
7632 liability for technology they might deploy that would hunt down
7633 copyright violators and disable their machines.<a href="#ftn.idp9538192" class="footnote" name="idp9538192"><sup class="footnote">[163]</sup></a>
7634 </p><p>
7635 In one sense, these solutions seem sensible. If the problem is the
7636 code, why not regulate the code to remove the problem. But any
7637 regulation of technical infrastructure will always be tuned to the
7638 particular technology of the day. It will impose significant burdens
7639 and costs on
7640
7641 the technology, but will likely be eclipsed by advances around exactly
7642 those requirements.
7643 </p><a class="indexterm" name="idp9540304"></a><p>
7644 In March 2002, a broad coalition of technology companies, led by
7645 Intel, tried to get Congress to see the harm that such legislation
7646 would impose.<a href="#ftn.idp9541504" class="footnote" name="idp9541504"><sup class="footnote">[164]</sup></a>
7647 Their argument was obviously not that copyright should not be
7648 protected. Instead, they argued, any protection should not do more
7649 harm than good.
7650 </p><p>
7651 <span class="strong"><strong>There is one</strong></span> more obvious way in
7652 which this war has harmed innovation&#8212;again, a story that will be
7653 quite familiar to the free market crowd.
7654 </p><p>
7655 Copyright may be property, but like all property, it is also a form
7656 of regulation. It is a regulation that benefits some and harms others.
7657 When done right, it benefits creators and harms leeches. When done
7658 wrong, it is regulation the powerful use to defeat competitors.
7659 </p><a class="indexterm" name="idp9545152"></a><a class="indexterm" name="idp9546224"></a><a class="indexterm" name="idp9547040"></a><a class="indexterm" name="idp9547856"></a><p>
7660 As I described in chapter <a class="xref" href="#property-i" title="Chapter 10. «Property»">10</a>, despite this feature of copyright as
7661 regulation, and subject to important qualifications outlined by
7662 Jessica Litman in her book <em class="citetitle">Digital
7663 Copyright</em>,<a href="#ftn.idp9550736" class="footnote" name="idp9550736"><sup class="footnote">[165]</sup></a>
7664 overall this history of copyright is not bad. As chapter
7665 <a class="xref" href="#property-i" title="Chapter 10. «Property»">10</a> details,
7666 when new technologies have come along, Congress has struck a balance
7667 to assure that the new is protected from the old. Compulsory, or
7668 statutory, licenses have been one part of that strategy. Free use (as
7669 in the case of the VCR) has been another.
7670 </p><p>
7671 But that pattern of deference to new technologies has now changed
7672 with the rise of the Internet. Rather than striking a balance between
7673 the claims of a new technology and the legitimate rights of content
7674 creators, both the courts and Congress have imposed legal restrictions
7675 that will have the effect of smothering the new to benefit the old.
7676 </p><a class="indexterm" name="idxinternetradioon"></a><a class="indexterm" name="idxradiooninternet"></a><p>
7677 The response by the courts has been fairly universal.<a href="#ftn.idp9559760" class="footnote" name="idp9559760"><sup class="footnote">[166]</sup></a>
7678 It has been mirrored in the responses threatened and actually
7679 implemented by Congress. I won't catalog all of those responses
7680 here.<a href="#ftn.idp9564080" class="footnote" name="idp9564080"><sup class="footnote">[167]</sup></a>
7681 But there is one example that captures the flavor of them all. This is
7682 the story of the demise of Internet radio.
7683 </p><a class="indexterm" name="idp9570832"></a><a class="indexterm" name="idp9571920"></a><p>
7684
7685
7686 As I described in chapter <a class="xref" href="#pirates" title="Chapter 4. «Pirates»">4</a>, when a radio station plays a song, the recording
7687 artist doesn't get paid for that <span class="quote">«<span class="quote">radio performance</span>»</span> unless he or she
7688 is also the composer. So, for example if Marilyn Monroe had recorded a
7689 version of <span class="quote">«<span class="quote">Happy Birthday</span>»</span>&#8212;to memorialize her famous
7690 performance before President Kennedy at Madison Square Garden&#8212;
7691 then whenever that recording was played on the radio, the current
7692 copyright owners of <span class="quote">«<span class="quote">Happy Birthday</span>»</span> would get some money, whereas
7693 Marilyn Monroe would not.
7694 </p><p>
7695 The reasoning behind this balance struck by Congress makes some
7696 sense. The justification was that radio was a kind of advertising. The
7697 recording artist thus benefited because by playing her music, the
7698 radio station was making it more likely that her records would be
7699 purchased.  Thus, the recording artist got something, even if only
7700 indirectly.  Probably this reasoning had less to do with the result
7701 than with the power of radio stations: Their lobbyists were quite good
7702 at stopping any efforts to get Congress to require compensation to the
7703 recording artists.
7704 </p><p>
7705 Enter Internet radio. Like regular radio, Internet radio is a
7706 technology to stream content from a broadcaster to a listener. The
7707 broadcast travels across the Internet, not across the ether of radio
7708 spectrum.  Thus, I can <span class="quote">«<span class="quote">tune in</span>»</span> to an Internet radio station in
7709 Berlin while sitting in San Francisco, even though there's no way for
7710 me to tune in to a regular radio station much beyond the San Francisco
7711 metropolitan area.
7712 </p><p>
7713 This feature of the architecture of Internet radio means that there
7714 are potentially an unlimited number of radio stations that a user
7715 could tune in to using her computer, whereas under the existing
7716 architecture for broadcast radio, there is an obvious limit to the
7717 number of broadcasters and clear broadcast frequencies. Internet radio
7718 could therefore be more competitive than regular radio; it could
7719 provide a wider range of selections. And because the potential
7720 audience for Internet radio is the whole world, niche stations could
7721 easily develop and market their content to a relatively large number
7722 of users worldwide. According to some estimates, more than eighty
7723 million users worldwide have tuned in to this new form of radio.
7724 </p><a class="indexterm" name="idp9579584"></a><p>
7725
7726
7727 Internet radio is thus to radio what FM was to AM. It is an
7728 improvement potentially vastly more significant than the FM
7729 improvement over AM, since not only is the technology better, so, too,
7730 is the competition. Indeed, there is a direct parallel between the
7731 fight to establish FM radio and the fight to protect Internet
7732 radio. As one author describes Howard Armstrong's struggle to enable
7733 FM radio,
7734 </p><div class="blockquote"><blockquote class="blockquote"><p>
7735 An almost unlimited number of FM stations was possible in the
7736 shortwaves, thus ending the unnatural restrictions imposed on radio in
7737 the crowded longwaves. If FM were freely developed, the number of
7738 stations would be limited only by economics and competition rather
7739 than by technical restrictions. &#8230; Armstrong likened the situation
7740 that had grown up in radio to that following the invention of the
7741 printing press, when governments and ruling interests attempted to
7742 control this new instrument of mass communications by imposing
7743 restrictive licenses on it. This tyranny was broken only when it
7744 became possible for men freely to acquire printing presses and freely
7745 to run them. FM in this sense was as great an invention as the
7746 printing presses, for it gave radio the opportunity to strike off its
7747 shackles.<a href="#ftn.idp9515920" class="footnote" name="idp9515920"><sup class="footnote">[168]</sup></a>
7748 </p></blockquote></div><p>
7749 This potential for FM radio was never realized&#8212;not
7750 because Armstrong was wrong about the technology, but because he
7751 underestimated the power of <span class="quote">«<span class="quote">vested interests, habits, customs and
7752 legislation</span>»</span><a href="#ftn.idp9584640" class="footnote" name="idp9584640"><sup class="footnote">[169]</sup></a>
7753 to retard the growth of this competing technology.
7754 </p><p>
7755 Now the very same claim could be made about Internet radio. For
7756 again, there is no technical limitation that could restrict the number of
7757 Internet radio stations. The only restrictions on Internet radio are
7758 those imposed by the law. Copyright law is one such law. So the first
7759 question we should ask is, what copyright rules would govern Internet
7760 radio?
7761 </p><a class="indexterm" name="idxartistsrecordingindustrypaymentsto3"></a><a class="indexterm" name="idp9588272"></a><a class="indexterm" name="idp9589376"></a><a class="indexterm" name="idp9590480"></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>
7762 But here the power of the lobbyists is reversed. Internet radio is a
7763 new industry. The recording artists, on the other hand, have a very
7764
7765
7766 powerful lobby, the RIAA. Thus when Congress considered the phenomenon
7767 of Internet radio in 1995, the lobbyists had primed Congress to adopt
7768 a different rule for Internet radio than the rule that applies to
7769 terrestrial radio. While terrestrial radio does not have to pay our
7770 hypothetical Marilyn Monroe when it plays her hypothetical recording
7771 of <span class="quote">«<span class="quote">Happy Birthday</span>»</span> on the air, <span class="emphasis"><em>Internet radio
7772 does</em></span>. Not only is the law not neutral toward Internet
7773 radio&#8212;the law actually burdens Internet radio more than it
7774 burdens terrestrial radio.
7775 </p><p>
7776 This financial burden is not slight. As Harvard law professor
7777 William Fisher estimates, if an Internet radio station distributed adfree
7778 popular music to (on average) ten thousand listeners, twenty-four
7779 hours a day, the total artist fees that radio station would owe would be
7780 over $1 million a year.<a href="#ftn.idp9604176" class="footnote" name="idp9604176"><sup class="footnote">[170]</sup></a>
7781 A regular radio station broadcasting the same content would pay no
7782 equivalent fee.
7783 </p><a class="indexterm" name="idp9609840"></a><a class="indexterm" name="idp9611232"></a><a class="indexterm" name="idp9612560"></a><a class="indexterm" name="idp9613888"></a><a class="indexterm" name="idp9615328"></a><p>
7784 The burden is not financial only. Under the original rules that were
7785 proposed, an Internet radio station (but not a terrestrial radio
7786 station) would have to collect the following data from <span class="emphasis"><em>every
7787 listening transaction</em></span>:
7788 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><p>
7789 name of the service;
7790 </p></li><li class="listitem"><p>
7791 channel of the program (AM/FM stations use station ID);
7792 </p></li><li class="listitem"><p>
7793 type of program (archived/looped/live);
7794 </p></li><li class="listitem"><p>
7795 date of transmission;
7796 </p></li><li class="listitem"><p>
7797 time of transmission;
7798 </p></li><li class="listitem"><p>
7799 time zone of origination of transmission;
7800 </p></li><li class="listitem"><p>
7801 numeric designation of the place of the sound recording within the program;
7802 </p></li><li class="listitem"><p>
7803 duration of transmission (to nearest second);
7804 </p></li><li class="listitem"><p>
7805 sound recording title;
7806 </p></li><li class="listitem"><p>
7807 ISRC code of the recording;
7808 </p></li><li class="listitem"><p>
7809 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;
7810 </p></li><li class="listitem"><p>
7811 featured recording artist;
7812 </p></li><li class="listitem"><p>
7813 retail album title;
7814 </p></li><li class="listitem"><p>
7815 recording label;
7816 </p></li><li class="listitem"><p>
7817 UPC code of the retail album;
7818 </p></li><li class="listitem"><p>
7819 catalog number;
7820 </p></li><li class="listitem"><p>
7821 copyright owner information;
7822 </p></li><li class="listitem"><p>
7823 musical genre of the channel or program (station format);
7824 </p></li><li class="listitem"><p>
7825 name of the service or entity;
7826 </p></li><li class="listitem"><p>
7827 channel or program;
7828 </p></li><li class="listitem"><p>
7829 date and time that the user logged in (in the user's time zone);
7830 </p></li><li class="listitem"><p>
7831 date and time that the user logged out (in the user's time zone);
7832 </p></li><li class="listitem"><p>
7833 time zone where the signal was received (user);
7834 </p></li><li class="listitem"><p>
7835 unique user identifier;
7836 </p></li><li class="listitem"><p>
7837 the country in which the user received the transmissions.
7838 </p></li></ol></div><a class="indexterm" name="idp9633488"></a><p>
7839 The Librarian of Congress eventually suspended these reporting
7840 requirements, pending further study. And he also changed the original
7841 rates set by the arbitration panel charged with setting rates. But the
7842 basic difference between Internet radio and terrestrial radio remains:
7843 Internet radio has to pay a <span class="emphasis"><em>type of copyright fee</em></span>
7844 that terrestrial radio does not.
7845 </p><p>
7846 Why? What justifies this difference? Was there any study of the
7847 economic consequences from Internet radio that would justify these
7848 differences? Was the motive to protect artists against piracy?
7849 </p><a class="indexterm" name="idp9636064"></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>
7850 In a rare bit of candor, one RIAA expert admitted what seemed obvious
7851 to everyone at the time. As Alex Alben, vice president for Public
7852 Policy at Real Networks, told me,
7853 </p><div class="blockquote"><blockquote class="blockquote"><p>
7854 The RIAA, which was representing the record labels, presented
7855 some testimony about what they thought a willing buyer would
7856 pay to a willing seller, and it was much higher. It was ten times
7857 higher than what radio stations pay to perform the same songs for
7858 the same period of time. And so the attorneys representing the
7859 webcasters asked the RIAA, &#8230; <span class="quote">«<span class="quote">How  do  you  come  up  with a
7860
7861
7862 rate that's so much higher? Why is it worth more than radio?  Because
7863 here we have hundreds of thousands of webcasters who want to pay, and
7864 that should establish the market rate, and if you set the rate so
7865 high, you're going to drive the small webcasters out of
7866 business. &#8230;</span>»</span>
7867 </p><a class="indexterm" name="idp9646864"></a><p>
7868 And the RIAA experts said, <span class="quote">«<span class="quote">Well, we don't really model this as an
7869 industry with thousands of webcasters, <span class="emphasis"><em>we think it should be
7870 an industry with, you know, five or seven big players who can pay a
7871 high rate and it's a stable, predictable market</em></span>.</span>»</span> (Emphasis
7872 added.)
7873 </p></blockquote></div><a class="indexterm" name="idp9649568"></a><a class="indexterm" name="idp9650816"></a><a class="indexterm" name="idp9652160"></a><a class="indexterm" name="idp9653488"></a><p>
7874 Translation: The aim is to use the law to eliminate competition, so
7875 that this platform of potentially immense competition, which would
7876 cause the diversity and range of content available to explode, would not
7877 cause pain to the dinosaurs of old. There is no one, on either the right
7878 or the left, who should endorse this use of the law. And yet there is
7879 practically no one, on either the right or the left, who is doing anything
7880 effective to prevent it.
7881 </p><a class="indexterm" name="idp9655728"></a><a class="indexterm" name="idp9657056"></a><a class="indexterm" name="idp9658448"></a><a class="indexterm" name="idp9659824"></a><a class="indexterm" name="idp9661072"></a><a class="indexterm" name="idp9662384"></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>
7882 Overregulation stifles creativity. It smothers innovation. It gives
7883                 dinosaurs
7884 a veto over the future. It wastes the extraordinary opportunity
7885 for a democratic creativity that digital technology enables.
7886 </p><p>
7887 In addition to these important harms, there is one more that was
7888 important to our forebears, but seems forgotten today. Overregulation
7889 corrupts citizens and weakens the rule of law.
7890 </p><p>
7891 The war that is being waged today is a war of prohibition. As with
7892 every war of prohibition, it is targeted against the behavior of a very
7893 large number of citizens. According to <em class="citetitle">The New York Times</em>, 43 million
7894 Americans downloaded music in May 2002.<a href="#ftn.idp9667152" class="footnote" name="idp9667152"><sup class="footnote">[171]</sup></a>
7895  According to the RIAA,
7896 the behavior of those 43 million Americans is a felony. We thus have a
7897 set of rules that transform 20 percent of America into criminals. As the
7898
7899
7900 RIAA launches lawsuits against not only the Napsters and Kazaas of
7901 the world, but against students building search engines, and
7902                 increasingly
7903 against ordinary users downloading content, the technologies for
7904 sharing will advance to further protect and hide illegal use. It is an arms
7905 race or a civil war, with the extremes of one side inviting a more
7906                 extreme
7907 response by the other.
7908 </p><p>
7909 The content industry's tactics exploit the failings of the American
7910 legal system. When the RIAA brought suit against Jesse Jordan, it
7911 knew that in Jordan it had found a scapegoat, not a defendant. The
7912 threat of having to pay either all the money in the world in damages
7913 ($15,000,000) or almost all the money in the world to defend against
7914 paying all the money in the world in damages ($250,000 in legal fees)
7915 led Jordan to choose to pay all the money he had in the world
7916 ($12,000) to make the suit go away. The same strategy animates the
7917 RIAA's suits against individual users. In September 2003, the RIAA
7918 sued 261 individuals&#8212;including a twelve-year-old girl living in public
7919 housing and a seventy-year-old man who had no idea what file sharing
7920 was.<a href="#ftn.idp9603280" class="footnote" name="idp9603280"><sup class="footnote">[172]</sup></a>
7921 As these scapegoats discovered, it will always cost more to defend
7922 against these suits than it would cost to simply settle. (The twelve
7923 year old, for example, like Jesse Jordan, paid her life savings of $2,000
7924 to settle the case.) Our law is an awful system for defending rights. It
7925 is an embarrassment to our tradition. And the consequence of our law
7926 as it is, is that those with the power can use the law to quash any rights
7927 they oppose.
7928 </p><a class="indexterm" name="idp9673728"></a><p>
7929 Wars of prohibition are nothing new in America. This one is just
7930 something more extreme than anything we've seen before. We
7931 experimented with alcohol prohibition, at a time when the per capita
7932 consumption of alcohol was 1.5 gallons per capita per year. The war
7933 against drinking initially reduced that consumption to just 30 percent
7934 of its preprohibition levels, but by the end of prohibition,
7935 consumption was up to 70 percent of the preprohibition
7936 level. Americans were drinking just about as much, but now, a vast
7937 number were criminals.<a href="#ftn.idp9675360" class="footnote" name="idp9675360"><sup class="footnote">[173]</sup></a>
7938 We have
7939
7940 launched a war on drugs aimed at reducing the consumption of regulated
7941 narcotics that 7 percent (or 16 million) Americans now use.<a href="#ftn.idp9677648" class="footnote" name="idp9677648"><sup class="footnote">[174]</sup></a>
7942 That is a drop from the high (so to speak) in 1979 of 14 percent of
7943 the population. We regulate automobiles to the point where the vast
7944 majority of Americans violate the law every day. We run such a complex
7945 tax system that a majority of cash businesses regularly
7946 cheat.<a href="#ftn.idp9678976" class="footnote" name="idp9678976"><sup class="footnote">[175]</sup></a>
7947 We pride ourselves on our <span class="quote">«<span class="quote">free society,</span>»</span> but an endless array of
7948 ordinary behavior is regulated within our society. And as a result, a
7949 huge proportion of Americans regularly violate at least some law.
7950 </p><a class="indexterm" name="idp9681536"></a><p>
7951 This state of affairs is not without consequence. It is a particularly
7952 salient issue for teachers like me, whose job it is to teach law
7953 students about the importance of <span class="quote">«<span class="quote">ethics.</span>»</span> As my colleague Charlie
7954 Nesson told a class at Stanford, each year law schools admit thousands
7955 of students who have illegally downloaded music, illegally consumed
7956 alcohol and sometimes drugs, illegally worked without paying taxes,
7957 illegally driven cars. These are kids for whom behaving illegally is
7958 increasingly the norm. And then we, as law professors, are supposed to
7959 teach them how to behave ethically&#8212;how to say no to bribes, or
7960 keep client funds separate, or honor a demand to disclose a document
7961 that will mean that your case is over. Generations of
7962 Americans&#8212;more significantly in some parts of America than in
7963 others, but still, everywhere in America today&#8212;can't live their
7964 lives both normally and legally, since <span class="quote">«<span class="quote">normally</span>»</span> entails a certain
7965 degree of illegality.
7966 </p><p>
7967 The response to this general illegality is either to enforce the law
7968 more severely or to change the law. We, as a society, have to learn
7969 how to make that choice more rationally. Whether a law makes sense
7970 depends, in part, at least, upon whether the costs of the law, both
7971 intended and collateral, outweigh the benefits. If the costs, intended
7972 and collateral, do outweigh the benefits, then the law ought to be
7973 changed.  Alternatively, if the costs of the existing system are much
7974 greater than the costs of an alternative, then we have a good reason
7975 to consider the alternative.
7976 </p><p>
7977
7978
7979 My point is not the idiotic one: Just because people violate a law, we
7980 should therefore repeal it. Obviously, we could reduce murder statistics
7981 dramatically by legalizing murder on Wednesdays and Fridays. But
7982 that wouldn't make any sense, since murder is wrong every day of the
7983 week. A society is right to ban murder always and everywhere.
7984 </p><p>
7985 My point is instead one that democracies understood for generations,
7986 but that we recently have learned to forget. The rule of law depends
7987 upon people obeying the law. The more often, and more repeatedly, we
7988 as citizens experience violating the law, the less we respect the
7989 law. Obviously, in most cases, the important issue is the law, not
7990 respect for the law. I don't care whether the rapist respects the law
7991 or not; I want to catch and incarcerate the rapist. But I do care
7992 whether my students respect the law. And I do care if the rules of law
7993 sow increasing disrespect because of the extreme of regulation they
7994 impose.  Twenty million Americans have come of age since the Internet
7995 introduced this different idea of <span class="quote">«<span class="quote">sharing.</span>»</span> We need to be able to
7996 call these twenty million Americans <span class="quote">«<span class="quote">citizens,</span>»</span> not <span class="quote">«<span class="quote">felons.</span>»</span>
7997 </p><p>
7998 When at least forty-three million citizens download content from the
7999 Internet, and when they use tools to combine that content in ways
8000 unauthorized by copyright holders, the first question we should be
8001 asking is not how best to involve the FBI. The first question should
8002 be whether this particular prohibition is really necessary in order to
8003 achieve the proper ends that copyright law serves. Is there another
8004 way to assure that artists get paid without transforming forty-three
8005 million Americans into felons? Does it make sense if there are other
8006 ways to assure that artists get paid without transforming America into
8007 a nation of felons?
8008 </p><p>
8009 This abstract point can be made more clear with a particular example.
8010 </p><p>
8011 We all own CDs. Many of us still own phonograph records. These pieces
8012 of plastic encode music that in a certain sense we have bought.  The
8013 law protects our right to buy and sell that plastic: It is not a
8014 copyright infringement for me to sell all my classical records at a
8015 used
8016
8017
8018 record store and buy jazz records to replace them. That <span class="quote">«<span class="quote">use</span>»</span> of the
8019 recordings is free.
8020 </p><p>
8021 But as the MP3 craze has demonstrated, there is another use of
8022 phonograph records that is effectively free. Because these recordings
8023 were made without copy-protection technologies, I am <span class="quote">«<span class="quote">free</span>»</span> to copy,
8024 or <span class="quote">«<span class="quote">rip,</span>»</span> music from my records onto a computer hard disk. Indeed,
8025 Apple Corporation went so far as to suggest that <span class="quote">«<span class="quote">freedom</span>»</span> was a
8026 right: In a series of commercials, Apple endorsed the <span class="quote">«<span class="quote">Rip, Mix, Burn</span>»</span>
8027 capacities of digital technologies.
8028 </p><a class="indexterm" name="idp9694608"></a><a class="indexterm" name="idxcdsmix"></a><p>
8029 This <span class="quote">«<span class="quote">use</span>»</span> of my records is certainly valuable. I have begun a large
8030 process at home of ripping all of my and my wife's CDs, and storing
8031 them in one archive. Then, using Apple's iTunes, or a wonderful
8032 program called Andromeda, we can build different play lists of our
8033 music: Bach, Baroque, Love Songs, Love Songs of Significant
8034 Others&#8212;the potential is endless. And by reducing the costs of
8035 mixing play lists, these technologies help build a creativity with
8036 play lists that is itself independently valuable. Compilations of
8037 songs are creative and meaningful in their own right.
8038 </p><p>
8039 This use is enabled by unprotected media&#8212;either CDs or records.
8040 But unprotected media also enable file sharing. File sharing threatens
8041 (or so the content industry believes) the ability of creators to earn
8042 a fair return from their creativity. And thus, many are beginning to
8043 experiment with technologies to eliminate unprotected media. These
8044 technologies, for example, would enable CDs that could not be
8045 ripped. Or they might enable spy programs to identify ripped content
8046 on people's machines.
8047 </p><p>
8048 If these technologies took off, then the building of large archives of
8049 your own music would become quite difficult. You might hang in hacker
8050 circles, and get technology to disable the technologies that protect
8051 the content. Trading in those technologies is illegal, but maybe that
8052 doesn't bother you much. In any case, for the vast majority of people,
8053 these protection technologies would effectively destroy the archiving
8054
8055
8056 use of CDs. The technology, in other words, would force us all back to
8057 the world where we either listened to music by manipulating pieces of
8058 plastic or were part of a massively complex <span class="quote">«<span class="quote">digital rights
8059 management</span>»</span> system.
8060 </p><a class="indexterm" name="idp9701392"></a><p>
8061 If the only way to assure that artists get paid were the elimination
8062 of the ability to freely move content, then these technologies to
8063 interfere with the freedom to move content would be justifiable. But
8064 what if there were another way to assure that artists are paid,
8065 without locking down any content? What if, in other words, a different
8066 system could assure compensation to artists while also preserving the
8067 freedom to move content easily?
8068 </p><p>
8069 My point just now is not to prove that there is such a system. I offer
8070 a version of such a system in the last chapter of this book. For now,
8071 the only point is the relatively uncontroversial one: If a different
8072 system achieved the same legitimate objectives that the existing
8073 copyright system achieved, but left consumers and creators much more
8074 free, then we'd have a very good reason to pursue this
8075 alternative&#8212;namely, freedom.  The choice, in other words, would
8076 not be between property and piracy; the choice would be between
8077 different property systems and the freedoms each allowed.
8078 </p><p>
8079 I believe there is a way to assure that artists are paid without
8080 turning forty-three million Americans into felons. But the salient
8081 feature of this alternative is that it would lead to a very different
8082 market for producing and distributing creativity. The dominant few,
8083 who today control the vast majority of the distribution of content in
8084 the world, would no longer exercise this extreme of control. Rather,
8085 they would go the way of the horse-drawn buggy.
8086 </p><p>
8087 Except that this generation's buggy manufacturers have already saddled
8088 Congress, and are riding the law to protect themselves against this
8089 new form of competition. For them the choice is between fortythree
8090 million Americans as criminals and their own survival.
8091 </p><p>
8092 It is understandable why they choose as they do. It is not
8093 understandable why we as a democracy continue to choose as we do. Jack
8094
8095
8096
8097 Valenti is charming; but not so charming as to justify giving up a
8098 tradition as deep and important as our tradition of free culture.
8099 </p><a class="indexterm" name="idp9707072"></a><a class="indexterm" name="idxisps"></a><p>
8100 <span class="strong"><strong>There's one more</strong></span> aspect to this
8101 corruption that is particularly important to civil liberties, and
8102 follows directly from any war of prohibition.  As Electronic Frontier
8103 Foundation attorney Fred von Lohmann describes, this is the
8104 <span class="quote">«<span class="quote">collateral damage</span>»</span> that <span class="quote">«<span class="quote">arises whenever you turn
8105 a very large percentage of the population into criminals.</span>»</span> This
8106 is the collateral damage to civil liberties generally.
8107 </p><a class="indexterm" name="idp9711712"></a><p>
8108 <span class="quote">«<span class="quote">If you can treat someone as a putative lawbreaker,</span>»</span> von Lohmann
8109 explains,
8110 </p><div class="blockquote"><blockquote class="blockquote"><p>
8111 then all of a sudden a lot of basic civil liberty protections
8112 evaporate to one degree or another. &#8230; If you're a copyright
8113 infringer, how can you hope to have any privacy rights? If you're a
8114 copyright infringer, how can you hope to be secure against seizures of
8115 your computer? How can you hope to continue to receive Internet
8116 access? &#8230; Our sensibilities change as soon as we think, <span class="quote">«<span class="quote">Oh, well,
8117 but that person's a criminal, a lawbreaker.</span>»</span> Well, what this campaign
8118 against file sharing has done is turn a remarkable percentage of the
8119 American Internet-using population into <span class="quote">«<span class="quote">lawbreakers.</span>»</span>
8120 </p></blockquote></div><p>
8121 And the consequence of this transformation of the American public
8122 into criminals is that it becomes trivial, as a matter of due process, to
8123 effectively erase much of the privacy most would presume.
8124 </p><p>
8125 Users of the Internet began to see this generally in 2003 as the RIAA
8126 launched its campaign to force Internet service providers to turn over
8127 the names of customers who the RIAA believed were violating copyright
8128 law. Verizon fought that demand and lost. With a simple request to a
8129 judge, and without any notice to the customer at all, the identity of
8130 an Internet user is revealed.
8131 </p><p>
8132
8133 The RIAA then expanded this campaign, by announcing a general strategy
8134 to sue individual users of the Internet who are alleged to have
8135 downloaded copyrighted music from file-sharing systems. But as we've
8136 seen, the potential damages from these suits are astronomical: If a
8137 family's computer is used to download a single CD's worth of music,
8138 the family could be liable for $2 million in damages. That didn't stop
8139 the RIAA from suing a number of these families, just as they had sued
8140 Jesse Jordan.<a href="#ftn.idp9718176" class="footnote" name="idp9718176"><sup class="footnote">[176]</sup></a>
8141
8142 </p><p>
8143 Even this understates the espionage that is being waged by the
8144 RIAA. A report from CNN late last summer described a strategy the
8145 RIAA had adopted to track Napster users.<a href="#ftn.idp9724320" class="footnote" name="idp9724320"><sup class="footnote">[177]</sup></a>
8146 Using a sophisticated hashing algorithm, the RIAA took what is in
8147 effect a fingerprint of every song in the Napster catalog. Any copy of
8148 one of those MP3s will have the same <span class="quote">«<span class="quote">fingerprint.</span>»</span>
8149 </p><p>
8150 So imagine the following not-implausible scenario: Imagine a
8151 friend gives a CD to your daughter&#8212;a collection of songs just
8152 like the cassettes you used to make as a kid. You don't know, and
8153 neither does your daughter, where these songs came from. But she
8154 copies these songs onto her computer. She then takes her computer to
8155 college and connects it to a college network, and if the college
8156 network is <span class="quote">«<span class="quote">cooperating</span>»</span> with the RIAA's espionage, and she hasn't
8157 properly protected her content from the network (do you know how to do
8158 that yourself ?), then the RIAA will be able to identify your daughter
8159 as a <span class="quote">«<span class="quote">criminal.</span>»</span>  And under the rules that universities are beginning
8160 to deploy,<a href="#ftn.idp9729328" class="footnote" name="idp9729328"><sup class="footnote">[178]</sup></a>
8161 your daughter can lose the right to use the university's computer
8162 network.  She can, in some cases, be expelled.
8163 </p><a class="indexterm" name="idp9737664"></a><a class="indexterm" name="idp9738976"></a><p>
8164 Now, of course, she'll have the right to defend herself. You can hire
8165 a lawyer for her (at $300 per hour, if you're lucky), and she can
8166 plead that she didn't know anything about the source of the songs or
8167 that they came from Napster. And it may well be that the university
8168 believes her. But the university might not believe her. It might treat
8169 this <span class="quote">«<span class="quote">contraband</span>»</span> as presumptive of guilt. And as any number of
8170 college students
8171
8172
8173 have already learned, our presumptions about innocence disappear in
8174 the middle of wars of prohibition. This war is no different.
8175 Says von Lohmann,
8176 </p><div class="blockquote"><blockquote class="blockquote"><p>
8177 So when we're talking about numbers like forty to sixty million
8178 Americans that are essentially copyright infringers, you create a
8179 situation where the civil liberties of those people are very much in
8180 peril in a general matter. [I don't] think [there is any] analog where
8181 you could randomly choose any person off the street and be confident
8182 that they were committing an unlawful act that could put them on the
8183 hook for potential felony liability or hundreds of millions of dollars
8184 of civil liability. Certainly we all speed, but speeding isn't the
8185 kind of an act for which we routinely forfeit civil liberties. Some
8186 people use drugs, and I think that's the closest analog, [but] many
8187 have noted that the war against drugs has eroded all of our civil
8188 liberties because it's treated so many Americans as criminals. Well, I
8189 think it's fair to say that file sharing is an order of magnitude
8190 larger number of Americans than drug use. &#8230; If forty to sixty
8191 million Americans have become lawbreakers, then we're really on a
8192 slippery slope to lose a lot of civil liberties for all forty to sixty
8193 million of them.
8194 </p></blockquote></div><p>
8195 When forty to sixty million Americans are considered <span class="quote">«<span class="quote">criminals</span>»</span> under
8196 the law, and when the law could achieve the same objective&#8212;
8197 securing rights to authors&#8212;without these millions being
8198 considered <span class="quote">«<span class="quote">criminals,</span>»</span> who is the villain? Americans or the law?
8199 Which is American, a constant war on our own people or a concerted
8200 effort through our democracy to change our law?
8201 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp9415408" class="footnote"><p><a href="#idp9415408" class="para"><sup class="para">[157] </sup></a>
8202
8203 See Lynne W. Jeter, <em class="citetitle">Disconnected: Deceit and Betrayal at WorldCom</em>
8204 (Hoboken, N.J.: John Wiley &amp; Sons, 2003), 176, 204; for details of
8205 the settlement, see MCI press release, <span class="quote">«<span class="quote">MCI Wins U.S. District Court
8206 Approval for SEC Settlement</span>»</span> (7 July 2003), available at
8207 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #37</a>.
8208 <a class="indexterm" name="idp9418144"></a>
8209 </p></div><div id="ftn.idp9419296" class="footnote"><p><a href="#idp9419296" class="para"><sup class="para">[158] </sup></a>
8210  The bill, modeled after California's tort reform model, was passed in the
8211 House of Representatives but defeated in a Senate vote in July 2003. For
8212 an overview, see Tanya Albert, <span class="quote">«<span class="quote">Measure Stalls in Senate: `We'll Be Back,'
8213 Say Tort Reformers,</span>»</span> amednews.com, 28 July 2003, available at
8214 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #38</a>,
8215 and <span class="quote">«<span class="quote">Senate Turns Back Malpractice Caps,</span>»</span> CBSNews.com, 9 July 2003,
8216 available at
8217 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #39</a>. President Bush has continued to urge tort reform in
8218 recent months.
8219 <a class="indexterm" name="idp9422864"></a>
8220 </p></div><div id="ftn.idp9427296" class="footnote"><p><a href="#idp9427296" class="para"><sup class="para">[159] </sup></a>
8221
8222
8223 See Danit Lidor, <span class="quote">«<span class="quote">Artists Just Wanna Be Free,</span>»</span> <em class="citetitle">Wired</em>, 7 July
8224 2003, available at
8225 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #40</a>. For an overview of the exhibition, see
8226 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #41</a>.
8227 </p></div><div id="ftn.idp9509680" class="footnote"><p><a href="#idp9509680" class="para"><sup class="para">[160] </sup></a>
8228
8229 See Joseph Menn, <span class="quote">«<span class="quote">Universal, EMI Sue Napster Investor,</span>»</span> <em class="citetitle">Los Angeles
8230 Times</em>, 23 April 2003. For a parallel argument about the effects on
8231 innovation in the distribution of music, see Janelle Brown, <span class="quote">«<span class="quote">The Music
8232 Revolution Will Not Be Digitized,</span>»</span> Salon.com, 1 June 2001, available
8233 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #42</a>.
8234 See also Jon Healey, <span class="quote">«<span class="quote">Online Music Services Besieged,</span>»</span> <em class="citetitle">Los Angeles
8235 Times</em>, 28 May 2001.
8236 </p></div><div id="ftn.idp9443088" class="footnote"><p><a href="#idp9443088" class="para"><sup class="para">[161] </sup></a>
8237
8238 Rafe Needleman, <span class="quote">«<span class="quote">Driving in Cars with MP3s,</span>»</span> <em class="citetitle">Business 2.0</em>, 16 June
8239 2003, available at
8240 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #43</a>. I am grateful
8241 to Dr. Mohammad Al-Ubaydli for this example.
8242 <a class="indexterm" name="idp9518464"></a>
8243 </p></div><div id="ftn.idp9535248" class="footnote"><p><a href="#idp9535248" class="para"><sup class="para">[162] </sup></a>
8244  <span class="quote">«<span class="quote">Copyright and Digital Media in a Post-Napster World,</span>»</span> GartnerG2 and
8245 the Berkman Center for Internet and Society at Harvard Law School
8246 (2003), 33&#8211;35, available at
8247 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #44</a>.
8248 </p></div><div id="ftn.idp9538192" class="footnote"><p><a href="#idp9538192" class="para"><sup class="para">[163] </sup></a>
8249
8250 GartnerG2, 26&#8211;27.
8251 </p></div><div id="ftn.idp9541504" class="footnote"><p><a href="#idp9541504" class="para"><sup class="para">[164] </sup></a>
8252
8253 See David McGuire, <span class="quote">«<span class="quote">Tech Execs Square Off Over Piracy,</span>»</span> Newsbytes,
8254 February 2002 (Entertainment).
8255 </p></div><div id="ftn.idp9550736" class="footnote"><p><a href="#idp9550736" class="para"><sup class="para">[165] </sup></a>
8256
8257 Jessica Litman, <em class="citetitle">Digital Copyright</em> (Amherst,
8258 N.Y.: Prometheus Books, 2001).
8259 <a class="indexterm" name="idp9551952"></a>
8260 <a class="indexterm" name="idp9552784"></a>
8261 </p></div><div id="ftn.idp9559760" class="footnote"><p><a href="#idp9559760" class="para"><sup class="para">[166] </sup></a>
8262
8263 <a class="indexterm" name="idp9560496"></a>
8264 The only circuit court exception is found in <em class="citetitle">Recording Industry
8265 Association of America (RIAA)</em> v. <em class="citetitle">Diamond Multimedia Systems</em>, 180 F. 3d
8266 1072 (9th Cir. 1999). There the court of appeals for the Ninth Circuit
8267 reasoned that makers of a portable MP3 player were not liable for
8268 contributory copyright infringement for a device that is unable to
8269 record or redistribute music (a device whose only copying function is
8270 to render portable a music file already stored on a user's hard
8271 drive).  At the district court level, the only exception is found in
8272 <em class="citetitle">Metro-Goldwyn-Mayer Studios, Inc</em>. v. <em class="citetitle">Grokster, Ltd</em>., 259 F. Supp. 2d
8273 1029 (C.D.  Cal., 2003), where the court found the link between the
8274 distributor and any given user's conduct too attenuated to make the
8275 distributor liable for contributory or vicarious infringement
8276 liability.
8277 </p></div><div id="ftn.idp9564080" class="footnote"><p><a href="#idp9564080" class="para"><sup class="para">[167] </sup></a>
8278
8279 <a class="indexterm" name="idp9564816"></a>
8280 <a class="indexterm" name="idp9565600"></a>
8281 <a class="indexterm" name="idp9566416"></a>
8282 <a class="indexterm" name="idp9567232"></a>
8283 For example, in July 2002, Representative Howard Berman introduced the
8284 Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize
8285 copyright holders from liability for damage done to computers when the
8286 copyright holders use technology to stop copyright infringement. In
8287 August 2002, Representative Billy Tauzin introduced a bill to mandate
8288 that technologies capable of rebroadcasting digital copies of films
8289 broadcast on TV (i.e., computers) respect a <span class="quote">«<span class="quote">broadcast flag</span>»</span> that
8290 would disable copying of that content. And in March of the same year,
8291 Senator Fritz Hollings introduced the Consumer Broadband and Digital
8292 Television Promotion Act, which mandated copyright protection
8293 technology in all digital media devices. See GartnerG2, <span class="quote">«<span class="quote">Copyright and
8294 Digital Media in a Post-Napster World,</span>»</span> 27 June 2003, 33&#8211;34,
8295 available at
8296 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #44</a>.
8297 </p></div><div id="ftn.idp9515920" class="footnote"><p><a href="#idp9515920" class="para"><sup class="para">[168] </sup></a>
8298
8299 Lessing, 239.
8300 </p></div><div id="ftn.idp9584640" class="footnote"><p><a href="#idp9584640" class="para"><sup class="para">[169] </sup></a>
8301
8302 Ibid., 229.
8303 </p></div><div id="ftn.idp9604176" class="footnote"><p><a href="#idp9604176" class="para"><sup class="para">[170] </sup></a>
8304
8305 This example was derived from fees set by the original Copyright
8306 Arbitration Royalty Panel (CARP) proceedings, and is drawn from an
8307 example offered by Professor William Fisher. Conference Proceedings,
8308 iLaw (Stanford), 3 July 2003, on file with author. Professors Fisher
8309 and Zittrain submitted testimony in the CARP proceeding that was
8310 ultimately rejected.  See Jonathan Zittrain, Digital Performance Right
8311 in Sound Recordings and Ephemeral Recordings, Docket No. 2000-9, CARP
8312 DTRA 1 and 2, available at
8313 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #45</a>.
8314 For an excellent analysis making a similar point, see Randal
8315 C. Picker, <span class="quote">«<span class="quote">Copyright as Entry Policy: The Case of Digital
8316 Distribution,</span>»</span> <em class="citetitle">Antitrust Bulletin</em> (Summer/Fall 2002): 461: <span class="quote">«<span class="quote">This was
8317 not confusion, these are just old-fashioned entry barriers. Analog
8318 radio stations are protected from digital entrants, reducing entry in
8319 radio and diversity. Yes, this is done in the name of getting
8320 royalties to copyright holders, but, absent the play of powerful
8321 interests, that could have been done in a media-neutral way.</span>»</span>
8322 <a class="indexterm" name="idp9607888"></a>
8323 <a class="indexterm" name="idp9608672"></a>
8324 </p></div><div id="ftn.idp9667152" class="footnote"><p><a href="#idp9667152" class="para"><sup class="para">[171] </sup></a>
8325  Mike Graziano and Lee Rainie, <span class="quote">«<span class="quote">The Music Downloading Deluge,</span>»</span> Pew
8326 Internet and American Life Project (24 April 2001), available at
8327 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #46</a>.
8328 The Pew Internet and American Life Project reported that 37 million
8329 Americans had downloaded music files from the Internet by early 2001.
8330 </p></div><div id="ftn.idp9603280" class="footnote"><p><a href="#idp9603280" class="para"><sup class="para">[172] </sup></a>
8331
8332 Alex Pham, <span class="quote">«<span class="quote">The Labels Strike Back: N.Y. Girl Settles RIAA Case,</span>»</span> <em class="citetitle">Los
8333 Angeles Times</em>, 10 September 2003, Business.
8334 </p></div><div id="ftn.idp9675360" class="footnote"><p><a href="#idp9675360" class="para"><sup class="para">[173] </sup></a>
8335
8336 Jeffrey A. Miron and Jeffrey Zwiebel, <span class="quote">«<span class="quote">Alcohol Consumption During
8337 Prohibition,</span>»</span> <em class="citetitle">American Economic Review</em> 81, no. 2 (1991): 242.
8338 </p></div><div id="ftn.idp9677648" class="footnote"><p><a href="#idp9677648" class="para"><sup class="para">[174] </sup></a>
8339
8340 National Drug Control Policy: Hearing Before the House Government
8341 Reform Committee, 108th Cong., 1st sess. (5 March 2003) (statement of
8342 John P. Walters, director of National Drug Control Policy).
8343 </p></div><div id="ftn.idp9678976" class="footnote"><p><a href="#idp9678976" class="para"><sup class="para">[175] </sup></a>
8344
8345 See James Andreoni, Brian Erard, and Jonathon Feinstein, <span class="quote">«<span class="quote">Tax
8346 Compliance,</span>»</span> <em class="citetitle">Journal of Economic Literature</em> 36 (1998): 818 (survey of
8347 compliance literature).
8348 </p></div><div id="ftn.idp9718176" class="footnote"><p><a href="#idp9718176" class="para"><sup class="para">[176] </sup></a>
8349
8350 See Frank Ahrens, <span class="quote">«<span class="quote">RIAA's Lawsuits Meet Surprised Targets; Single
8351 Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,</span>»</span>
8352 <em class="citetitle">Washington Post</em>, 10 September 2003, E1; Chris Cobbs, <span class="quote">«<span class="quote">Worried Parents
8353 Pull Plug on File `Stealing'; With the Music Industry Cracking Down on
8354 File Swapping, Parents are Yanking Software from Home PCs to Avoid
8355 Being Sued,</span>»</span> <em class="citetitle">Orlando Sentinel Tribune</em>, 30 August 2003, C1; Jefferson
8356 Graham, <span class="quote">«<span class="quote">Recording Industry Sues Parents,</span>»</span> <em class="citetitle">USA Today</em>, 15 September
8357 2003, 4D; John Schwartz, <span class="quote">«<span class="quote">She Says She's No Music Pirate. No Snoop
8358 Fan, Either,</span>»</span> <em class="citetitle">New York Times</em>, 25 September 2003, C1; Margo Varadi, <span class="quote">«<span class="quote">Is
8359 Brianna a Criminal?</span>»</span> <em class="citetitle">Toronto Star</em>, 18 September 2003, P7.
8360 </p></div><div id="ftn.idp9724320" class="footnote"><p><a href="#idp9724320" class="para"><sup class="para">[177] </sup></a>
8361
8362 See <span class="quote">«<span class="quote">Revealed: How RIAA Tracks Downloaders: Music Industry Discloses
8363 Some Methods Used,</span>»</span> CNN.com, available at
8364 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #47</a>.
8365 </p></div><div id="ftn.idp9729328" class="footnote"><p><a href="#idp9729328" class="para"><sup class="para">[178] </sup></a>
8366
8367 See Jeff Adler, <span class="quote">«<span class="quote">Cambridge: On Campus, Pirates Are Not Penitent,</span>»</span>
8368 <em class="citetitle">Boston Globe</em>, 18 May 2003, City Weekly, 1; Frank Ahrens, <span class="quote">«<span class="quote">Four
8369 Students Sued over Music Sites; Industry Group Targets File Sharing at
8370 Colleges,</span>»</span> <em class="citetitle">Washington Post</em>, 4 April 2003, E1; Elizabeth Armstrong,
8371 <span class="quote">«<span class="quote">Students `Rip, Mix, Burn' at Their Own Risk,</span>»</span> <em class="citetitle">Christian Science
8372 Monitor</em>, 2 September 2003, 20; Robert Becker and Angela Rozas, <span class="quote">«<span class="quote">Music
8373 Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over;
8374 Lawsuit Possible,</span>»</span> <em class="citetitle">Chicago Tribune</em>, 16 July 2003, 1C; Beth Cox, <span class="quote">«<span class="quote">RIAA
8375 Trains Antipiracy Guns on Universities,</span>»</span> <em class="citetitle">Internet News</em>, 30 January
8376 2003, available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
8377 #48</a>; Benny Evangelista, <span class="quote">«<span class="quote">Download Warning 101: Freshman
8378 Orientation This Fall to Include Record Industry Warnings Against File
8379 Sharing,</span>»</span> <em class="citetitle">San Francisco Chronicle</em>, 11 August 2003, E11; <span class="quote">«<span class="quote">Raid, Letters
8380 Are Weapons at Universities,</span>»</span> <em class="citetitle">USA Today</em>, 26 September 2000, 3D.
8381 </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>
8382 <span class="strong"><strong>So here's</strong></span> the picture: You're
8383 standing at the side of the road. Your car is on fire. You are angry
8384 and upset because in part you helped start the fire. Now you don't
8385 know how to put it out. Next to you is a bucket, filled with
8386 gasoline. Obviously, gasoline won't put the fire out.
8387 </p><p>
8388 As you ponder the mess, someone else comes along. In a panic, she
8389 grabs the bucket. Before you have a chance to tell her to
8390 stop&#8212;or before she understands just why she should
8391 stop&#8212;the bucket is in the air.  The gasoline is about to hit the
8392 blazing car. And the fire that gasoline will ignite is about to ignite
8393 everything around.
8394 </p><p>
8395 <span class="strong"><strong>A war</strong></span> about copyright rages all
8396 around&#8212;and we're all focusing on the wrong thing. No doubt,
8397 current technologies threaten existing businesses.  No doubt they may
8398 threaten artists. But technologies change.  The industry and
8399 technologists have plenty of ways to use technology to protect
8400 themselves against the current threats of the Internet. This is a fire
8401 that if let alone would burn itself out.
8402 </p><p>
8403
8404 Yet policy makers are not willing to leave this fire to itself. Primed
8405 with plenty of lobbyists' money, they are keen to intervene to
8406 eliminate the problem they perceive. But the problem they perceive is
8407 not the real threat this culture faces. For while we watch this small
8408 fire in the corner, there is a massive change in the way culture is
8409 made that is happening all around.
8410 </p><p>
8411 Somehow we have to find a way to turn attention to this more important
8412 and fundamental issue. Somehow we have to find a way to avoid pouring
8413 gasoline onto this fire.
8414 </p><p>
8415 We have not found that way yet. Instead, we seem trapped in a simpler,
8416 binary view. However much many people push to frame this debate more
8417 broadly, it is the simple, binary view that remains. We rubberneck to
8418 look at the fire when we should be keeping our eyes on the road.
8419 </p><p>
8420 This challenge has been my life these last few years. It has also been
8421 my failure. In the two chapters that follow, I describe one small
8422 brace of efforts, so far failed, to find a way to refocus this
8423 debate. We must understand these failures if we're to understand what
8424 success will require.
8425 </p></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="eldred"></a>Chapter 13. Eldred</h2></div></div></div><a class="indexterm" name="idxeldrederic"></a><a class="indexterm" name="idxhawthornenathaniel"></a><p>
8426 <span class="strong"><strong>In 1995</strong></span>, a father was frustrated
8427 that his daughters didn't seem to like Hawthorne. No doubt there was
8428 more than one such father, but at least one did something about
8429 it. Eric Eldred, a retired computer programmer living in New
8430 Hampshire, decided to put Hawthorne on the Web. An electronic version,
8431 Eldred thought, with links to pictures and explanatory text, would
8432 make this nineteenth-century author's work come alive.
8433 </p><a class="indexterm" name="idxlibrariesofpublicdomainliterature"></a><a class="indexterm" name="idxpublicdomainlibraryofworksderivedfrom"></a><p>
8434 It didn't work&#8212;at least for his daughters. They didn't find
8435 Hawthorne any more interesting than before. But Eldred's experiment
8436 gave birth to a hobby, and his hobby begat a cause: Eldred would build
8437 a library of public domain works by scanning these works and making
8438 them available for free.
8439 </p><a class="indexterm" name="idxdisneywalt5"></a><a class="indexterm" name="idp9766704"></a><p>
8440 Eldred's library was not simply a copy of certain public domain
8441 works, though even a copy would have been of great value to people
8442 across the world who can't get access to printed versions of these
8443 works. Instead, Eldred was producing derivative works from these
8444 public domain works. Just as Disney turned Grimm into stories more
8445
8446 accessible to the twentieth century, Eldred transformed Hawthorne, and
8447 many others, into a form more accessible&#8212;technically
8448 accessible&#8212;today.
8449 </p><a class="indexterm" name="idp9764800"></a><p>
8450 Eldred's freedom to do this with Hawthorne's work grew from the same
8451 source as Disney's. Hawthorne's <em class="citetitle">Scarlet Letter</em> had passed into the
8452 public domain in 1907. It was free for anyone to take without the
8453 permission of the Hawthorne estate or anyone else. Some, such as Dover
8454 Press and Penguin Classics, take works from the public domain and
8455 produce printed editions, which they sell in bookstores across the
8456 country. Others, such as Disney, take these stories and turn them into
8457 animated cartoons, sometimes successfully (<em class="citetitle">Cinderella</em>), sometimes not
8458 (<em class="citetitle">The Hunchback of Notre Dame</em>, <em class="citetitle">Treasure Planet</em>). These are all
8459 commercial publications of public domain works.
8460 </p><a class="indexterm" name="idp9772160"></a><a class="indexterm" name="idp9773472"></a><p>
8461 The Internet created the possibility of noncommercial publications of
8462 public domain works. Eldred's is just one example. There are literally
8463 thousands of others. Hundreds of thousands from across the world have
8464 discovered this platform of expression and now use it to share works
8465 that are, by law, free for the taking. This has produced what we might
8466 call the <span class="quote">«<span class="quote">noncommercial publishing industry,</span>»</span> which before the
8467 Internet was limited to people with large egos or with political or
8468 social causes. But with the Internet, it includes a wide range of
8469 individuals and groups dedicated to spreading culture
8470 generally.<a href="#ftn.idp9776032" class="footnote" name="idp9776032"><sup class="footnote">[179]</sup></a>
8471 </p><a class="indexterm" name="idxcongressuscopyrighttermsextendedby2"></a><a class="indexterm" name="idxcopyrightdurationof6"></a><a class="indexterm" name="idxcopyrightlawtermextensionsin2"></a><a class="indexterm" name="idp9784384"></a><a class="indexterm" name="idp9785200"></a><a class="indexterm" name="idp9786016"></a><a class="indexterm" name="idxpatentsfuturepatentsvsfuturecopyrightsin"></a><p>
8472 As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's
8473 collection of poems <em class="citetitle">New Hampshire</em> was slated to
8474 pass into the public domain. Eldred wanted to post that collection in
8475 his free public library.  But Congress got in the way. As I described
8476 in chapter <a class="xref" href="#property-i" title="Chapter 10. «Property»">10</a>, in 1998, for the eleventh time in forty years,
8477 Congress extended the terms of existing copyrights&#8212;this time by
8478 twenty years. Eldred would not be free to add any works more recent
8479 than 1923 to his collection until 2019.  Indeed, no copyrighted work
8480 would pass into the public domain until that year (and not even then,
8481 if Congress extends the term again). By contrast, in the same period,
8482 more than 1 million patents will pass into the public domain.
8483 </p><a class="indexterm" name="idp9791616"></a><a class="indexterm" name="idp9792800"></a><a class="indexterm" name="idp9794192"></a><a class="indexterm" name="idp9795008"></a><a class="indexterm" name="idxcopyrightinperpetuity4"></a><a class="indexterm" name="idxsonnybonocopyrighttermextensionactctea2"></a><p>
8484
8485
8486 This was the Sonny Bono Copyright Term Extension Act
8487 (CTEA), enacted in memory of the congressman and former musician
8488 Sonny Bono, who, his widow, Mary Bono, says, believed that
8489 <span class="quote">«<span class="quote">copyrights should be forever.</span>»</span><a href="#ftn.idp9800304" class="footnote" name="idp9800304"><sup class="footnote">[180]</sup></a>
8490 </p><a class="indexterm" name="idp9803760"></a><a class="indexterm" name="idp9805200"></a><a class="indexterm" name="idp9806320"></a><a class="indexterm" name="idp9807152"></a><a class="indexterm" name="idp9807984"></a><p>
8491 Eldred decided to fight this law. He first resolved to fight it through
8492 civil disobedience. In a series of interviews, Eldred announced that he
8493 would publish as planned, CTEA notwithstanding. But because of a
8494 second law passed in 1998, the NET (No Electronic Theft) Act, his act
8495 of publishing would make Eldred a felon&#8212;whether or not anyone
8496 complained. This was a dangerous strategy for a disabled programmer
8497 to undertake.
8498 </p><a class="indexterm" name="idp9809360"></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>
8499 It was here that I became involved in Eldred's battle. I was a
8500                 constitutional
8501 scholar whose first passion was constitutional
8502                 interpretation.
8503 And though constitutional law courses never focus upon the
8504 Progress Clause of the Constitution, it had always struck me as
8505                 importantly
8506 different. As you know, the Constitution says,
8507 </p><div class="blockquote"><blockquote class="blockquote"><p>
8508 Congress has the power to promote the Progress of Science &#8230;
8509 by securing for limited Times to Authors &#8230; exclusive Right to
8510 their &#8230; Writings. &#8230;
8511 </p></blockquote></div><a class="indexterm" name="idp9820272"></a><p>
8512 As I've described, this clause is unique within the power-granting
8513 clause of Article I, section 8 of our Constitution. Every other clause
8514 granting power to Congress simply says Congress has the power to do
8515 something&#8212;for example, to regulate <span class="quote">«<span class="quote">commerce among the several
8516 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
8517 specific&#8212;to <span class="quote">«<span class="quote">promote &#8230; Progress</span>»</span>&#8212;through means that
8518 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.,
8519 copyrights) <span class="quote">«<span class="quote">for limited Times.</span>»</span>
8520 </p><a class="indexterm" name="idp9825312"></a><a class="indexterm" name="idp9826592"></a><a class="indexterm" name="idp9827792"></a><a class="indexterm" name="idp9829168"></a><p>
8521 In the past forty years, Congress has gotten into the practice of
8522 extending existing terms of copyright protection. What puzzled me
8523 about this was, if Congress has the power to extend existing terms,
8524 then the Constitution's requirement that terms be <span class="quote">«<span class="quote">limited</span>»</span> will have
8525
8526 no practical effect. If every time a copyright is about to expire,
8527 Congress has the power to extend its term, then Congress can achieve
8528 what the Constitution plainly forbids&#8212;perpetual terms <span class="quote">«<span class="quote">on the
8529 installment plan,</span>»</span> as Professor Peter Jaszi so nicely put it.
8530 </p><a class="indexterm" name="idp9832064"></a><a class="indexterm" name="idp9833424"></a><a class="indexterm" name="idp9834768"></a><p>
8531 As an academic, my first response was to hit the books. I remember
8532 sitting late at the office, scouring on-line databases for any serious
8533 consideration of the question. No one had ever challenged Congress's
8534 practice of extending existing terms. That failure may in part be why
8535 Congress seemed so untroubled in its habit. That, and the fact that
8536 the practice had become so lucrative for Congress. Congress knows that
8537 copyright owners will be willing to pay a great deal of money to see
8538 their copyright terms extended. And so Congress is quite happy to keep
8539 this gravy train going.
8540 </p><p>
8541 For this is the core of the corruption in our present system of
8542 government. <span class="quote">«<span class="quote">Corruption</span>»</span> not in the sense that representatives are
8543 bribed.  Rather, <span class="quote">«<span class="quote">corruption</span>»</span> in the sense that the system induces the
8544 beneficiaries of Congress's acts to raise and give money to Congress
8545 to induce it to act. There's only so much time; there's only so much
8546 Congress can do. Why not limit its actions to those things it must
8547 do&#8212;and those things that pay? Extending copyright terms pays.
8548 </p><p>
8549 If that's not obvious to you, consider the following: Say you're one
8550 of the very few lucky copyright owners whose copyright continues to
8551 make money one hundred years after it was created. The Estate of
8552 Robert Frost is a good example. Frost died in 1963. His poetry
8553 continues to be extraordinarily valuable. Thus the Robert Frost estate
8554 benefits greatly from any extension of copyright, since no publisher
8555 would pay the estate any money if the poems Frost wrote could be
8556 published by anyone for free.
8557 </p><p>
8558 So imagine the Robert Frost estate is earning $100,000 a year from
8559 three of Frost's poems. And imagine the copyright for those poems
8560 is about to expire. You sit on the board of the Robert Frost estate.
8561 Your financial adviser comes to your board meeting with a very grim
8562 report:
8563 </p><p>
8564 <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,
8565
8566
8567 and C will expire. That means that after next year, we will no longer be
8568 receiving the annual royalty check of $100,000 from the publishers of
8569 those works.</span>»</span>
8570 </p><p>
8571 <span class="quote">«<span class="quote">There's a proposal in Congress, however,</span>»</span> she continues, <span class="quote">«<span class="quote">that
8572 could change this. A few congressmen are floating a bill to extend the
8573 terms of copyright by twenty years. That bill would be extraordinarily
8574 valuable to us. So we should hope this bill passes.</span>»</span>
8575 </p><p>
8576 <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
8577 about it?</span>»</span>
8578 </p><p>
8579 <span class="quote">«<span class="quote">Well, obviously, yes,</span>»</span> the adviser responds. <span class="quote">«<span class="quote">We could contribute
8580 to the campaigns of a number of representatives to try to assure that
8581 they support the bill.</span>»</span>
8582 </p><p>
8583 You hate politics. You hate contributing to campaigns. So you want
8584 to know whether this disgusting practice is worth it. <span class="quote">«<span class="quote">How much
8585 would we get if this extension were passed?</span>»</span> you ask the adviser. <span class="quote">«<span class="quote">How
8586 much is it worth?</span>»</span>
8587 </p><p>
8588 <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
8589 to get at least $100,000 a year from these copyrights, and you use the
8590 `discount rate' that we use to evaluate estate investments (6 percent),
8591 then this law would be worth $1,146,000 to the estate.</span>»</span>
8592 </p><p>
8593 You're a bit shocked by the number, but you quickly come to the
8594 correct conclusion:
8595 </p><p>
8596 <span class="quote">«<span class="quote">So you're saying it would be worth it for us to pay more than
8597 $1,000,000 in campaign contributions if we were confident those
8598                 contributions
8599 would assure that the bill was passed?</span>»</span>
8600 </p><p>
8601 <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
8602                 contribute
8603 up to the `present value' of the income you expect from these
8604 copyrights. Which for us means over $1,000,000.</span>»</span>
8605 </p><p>
8606 You quickly get the point&#8212;you as the member of the board and, I
8607 trust, you the reader. Each time copyrights are about to expire, every
8608 beneficiary in the position of the Robert Frost estate faces the same
8609 choice: If they can contribute to get a law passed to extend copyrights,
8610
8611 they will benefit greatly from that extension. And so each time
8612         copyrights
8613 are about to expire, there is a massive amount of lobbying to get
8614 the copyright term extended.
8615 </p><p>
8616 Thus a congressional perpetual motion machine: So long as legislation
8617 can be bought (albeit indirectly), there will be all the incentive in
8618 the world to buy further extensions of copyright.
8619 </p><p>
8620 In the lobbying that led to the passage of the Sonny Bono
8621                 Copyright
8622 Term Extension Act, this <span class="quote">«<span class="quote">theory</span>»</span> about incentives was proved
8623 real. Ten of the thirteen original sponsors of the act in the House
8624 received the maximum contribution from Disney's political action
8625 committee; in the Senate, eight of the twelve sponsors received
8626                 contributions.<a href="#ftn.idp9854416" class="footnote" name="idp9854416"><sup class="footnote">[181]</sup></a>
8627  The RIAA and the MPAA are estimated to have spent over
8628 $1.5 million lobbying in the 1998 election cycle. They paid out more
8629 than $200,000 in campaign contributions.<a href="#ftn.idp9856416" class="footnote" name="idp9856416"><sup class="footnote">[182]</sup></a>
8630  Disney is estimated to have
8631 contributed more than $800,000 to reelection campaigns in the
8632 cycle.<a href="#ftn.idp9858528" class="footnote" name="idp9858528"><sup class="footnote">[183]</sup></a>
8633
8634 </p><p>
8635 <span class="strong"><strong>Constitutional law</strong></span> is not oblivious
8636 to the obvious. Or at least, it need not be. So when I was considering
8637 Eldred's complaint, this reality about the never-ending incentives to
8638 increase the copyright term was central to my thinking. In my view, a
8639 pragmatic court committed to interpreting and applying the
8640 Constitution of our framers would see that if Congress has the power
8641 to extend existing terms, then there would be no effective
8642 constitutional requirement that terms be <span class="quote">«<span class="quote">limited.</span>»</span> If
8643 they could extend it once, they would extend it again and again and
8644 again.
8645 </p><a class="indexterm" name="idp9863216"></a><a class="indexterm" name="idp9864608"></a><a class="indexterm" name="idp9865872"></a><p>
8646 It was also my judgment that <span class="emphasis"><em>this</em></span> Supreme Court
8647 would not allow Congress to extend existing terms. As anyone close to
8648 the Supreme Court's work knows, this Court has increasingly restricted
8649 the power of Congress when it has viewed Congress's actions as
8650 exceeding the power granted to it by the Constitution. Among
8651 constitutional scholars, the most famous example of this trend was the
8652 Supreme Court's
8653
8654
8655 decision in 1995 to strike down a law that banned the possession of
8656 guns near schools.
8657 </p><p>
8658 Since 1937, the Supreme Court had interpreted Congress's granted
8659 powers very broadly; so, while the Constitution grants Congress the
8660 power to regulate only <span class="quote">«<span class="quote">commerce among the several states</span>»</span> (aka
8661                 <span class="quote">«<span class="quote">interstate
8662 commerce</span>»</span>), the Supreme Court had interpreted that power to
8663 include the power to regulate any activity that merely affected
8664                 interstate
8665 commerce.
8666 </p><p>
8667 As the economy grew, this standard increasingly meant that there was
8668 no limit to Congress's power to regulate, since just about every
8669 activity, when considered on a national scale, affects interstate
8670 commerce.  A Constitution designed to limit Congress's power was
8671 instead interpreted to impose no limit.
8672 </p><a class="indexterm" name="idp9871152"></a><p>
8673 The Supreme Court, under Chief Justice Rehnquist's command, changed
8674 that in <em class="citetitle">United States</em> v. <em class="citetitle">Lopez</em>. The government had
8675 argued that possessing guns near schools affected interstate
8676 commerce. Guns near schools increase crime, crime lowers property
8677 values, and so on. In the oral argument, the Chief Justice asked the
8678 government whether there was any activity that would not affect
8679 interstate commerce under the reasoning the government advanced. The
8680 government said there was not; if Congress says an activity affects
8681 interstate commerce, then that activity affects interstate
8682 commerce. The Supreme Court, the government said, was not in the
8683 position to second-guess Congress.
8684 </p><p>
8685 <span class="quote">«<span class="quote">We pause to consider the implications of the government's arguments,</span>»</span>
8686 the Chief Justice wrote.<a href="#ftn.idp9874672" class="footnote" name="idp9874672"><sup class="footnote">[184]</sup></a>
8687 If anything Congress says is interstate commerce must therefore be
8688 considered interstate commerce, then there would be no limit to
8689 Congress's power. The decision in <em class="citetitle">Lopez</em> was reaffirmed five years
8690 later in <em class="citetitle">United States</em> v. <em class="citetitle">Morrison</em>.<a href="#ftn.idp9877920" class="footnote" name="idp9877920"><sup class="footnote">[185]</sup></a>
8691 </p><p>
8692 If a principle were at work here, then it should apply to the Progress
8693 Clause as much as the Commerce Clause.<a href="#ftn.idp9880160" class="footnote" name="idp9880160"><sup class="footnote">[186]</sup></a>
8694 And if it is applied to the Progress Clause, the principle should
8695 yield the conclusion that Congress
8696
8697 can't extend an existing term. If Congress could extend an existing
8698 term, then there would be no <span class="quote">«<span class="quote">stopping point</span>»</span> to Congress's power over
8699 terms, though the Constitution expressly states that there is such a
8700 limit. Thus, the same principle applied to the power to grant
8701 copyrights should entail that Congress is not allowed to extend the
8702 term of existing copyrights.
8703 </p><p>
8704 <span class="emphasis"><em>If</em></span>, that is, the principle announced in <em class="citetitle">Lopez</em>
8705 stood for a principle.  Many believed the decision in <em class="citetitle">Lopez</em> stood for
8706 politics&#8212;a conservative Supreme Court, which believed in states'
8707 rights, using its power over Congress to advance its own personal
8708 political preferences. But I rejected that view of the Supreme Court's
8709 decision. Indeed, shortly after the decision, I wrote an article
8710 demonstrating the <span class="quote">«<span class="quote">fidelity</span>»</span> in such an interpretation of the
8711 Constitution. The idea that the Supreme Court decides cases based upon
8712 its politics struck me as extraordinarily boring.  I was not going to
8713 devote my life to teaching constitutional law if these nine Justices
8714 were going to be petty politicians.
8715 </p><a class="indexterm" name="idp9886112"></a><a class="indexterm" name="idp9887200"></a><a class="indexterm" name="idp9888320"></a><a class="indexterm" name="idp9889424"></a><p>
8716 <span class="strong"><strong>Now let's pause</strong></span> for a moment to
8717 make sure we understand what the argument in
8718 <em class="citetitle">Eldred</em> was not about. By insisting on the
8719 Constitution's limits to copyright, obviously Eldred was not endorsing
8720 piracy.  Indeed, in an obvious sense, he was fighting a kind of
8721 piracy&#8212;piracy of the public domain. When Robert Frost wrote his
8722 work and when Walt Disney created Mickey Mouse, the maximum copyright
8723 term was just fifty-six years. Because of interim changes, Frost and
8724 Disney had already enjoyed a seventy-five-year monopoly for their
8725 work. They had gotten the benefit of the bargain that the Constitution
8726 envisions: In exchange for a monopoly protected for fifty-six years,
8727 they created new work. But now these entities were using their
8728 power&#8212;expressed through the power of lobbyists' money&#8212;to
8729 get another twenty-year dollop of monopoly. That twenty-year dollop
8730 would be taken from the public domain. Eric Eldred was fighting a
8731 piracy that affects us all.
8732 </p><a class="indexterm" name="idp9891680"></a><p>
8733 Some people view the public domain with contempt. In their brief
8734
8735
8736 before the Supreme Court, the Nashville Songwriters Association
8737 wrote that the public domain is nothing more than <span class="quote">«<span class="quote">legal piracy.</span>»</span><a href="#ftn.idp9894576" class="footnote" name="idp9894576"><sup class="footnote">[187]</sup></a>
8738 But it is not piracy when the law allows it; and in our constitutional
8739 system, our law requires it. Some may not like the Constitution's
8740 requirements, but that doesn't make the Constitution a pirate's
8741 charter.
8742 </p><p>
8743 As we've seen, our constitutional system requires limits on
8744                 copyright
8745 as a way to assure that copyright holders do not too heavily
8746                 influence
8747 the development and distribution of our culture. Yet, as Eric
8748 Eldred discovered, we have set up a system that assures that copyright
8749 terms will be repeatedly extended, and extended, and extended. We
8750 have created the perfect storm for the public domain. Copyrights have
8751 not expired, and will not expire, so long as Congress is free to be
8752 bought to extend them again.
8753 </p><p>
8754 <span class="strong"><strong>It is valuable</strong></span> copyrights that are
8755 responsible for terms being extended.  Mickey Mouse and
8756 <span class="quote">«<span class="quote">Rhapsody in Blue.</span>»</span> These works are too valuable for
8757 copyright owners to ignore. But the real harm to our society from
8758 copyright extensions is not that Mickey Mouse remains Disney's.
8759 Forget Mickey Mouse. Forget Robert Frost. Forget all the works from
8760 the 1920s and 1930s that have continuing commercial value. The real
8761 harm of term extension comes not from these famous works. The real
8762 harm is to the works that are not famous, not commercially exploited,
8763 and no longer available as a result.
8764 </p><p>
8765 If you look at the work created in the first twenty years (1923 to
8766 1942) affected by the Sonny Bono Copyright Term Extension Act,
8767 2 percent of that work has any continuing commercial value. It was the
8768 copyright holders for that 2 percent who pushed the CTEA through.
8769 But the law and its effect were not limited to that 2 percent. The law
8770 extended the terms of copyright generally.<a href="#ftn.idp9901120" class="footnote" name="idp9901120"><sup class="footnote">[188]</sup></a>
8771
8772 </p><p>
8773 Think practically about the consequence of this
8774                 extension&#8212;practically,
8775 as a businessperson, and not as a lawyer eager for more legal
8776
8777
8778 work. In 1930, 10,047 books were published. In 2000, 174 of those
8779 books were still in print. Let's say you were Brewster Kahle, and you
8780 wanted to make available to the world in your iArchive project the
8781                 remaining
8782 9,873. What would you have to do?
8783 </p><a class="indexterm" name="idp9905088"></a><p>
8784 Well, first, you'd have to determine which of the 9,873 books were
8785 still under copyright. That requires going to a library (these data are
8786 not on-line) and paging through tomes of books, cross-checking the
8787 titles and authors of the 9,873 books with the copyright registration
8788 and renewal records for works published in 1930. That will produce a
8789 list of books still under copyright.
8790 </p><p>
8791 Then for the books still under copyright, you would need to locate
8792 the current copyright owners. How would you do that?
8793 </p><p>
8794 Most people think that there must be a list of these copyright
8795                 owners
8796 somewhere. Practical people think this way. How could there be
8797 thousands and thousands of government monopolies without there
8798 being at least a list?
8799 </p><p>
8800 But there is no list. There may be a name from 1930, and then in
8801 1959, of the person who registered the copyright. But just think
8802                 practically
8803 about how impossibly difficult it would be to track down
8804                 thousands
8805 of such records&#8212;especially since the person who registered is
8806 not necessarily the current owner. And we're just talking about 1930!
8807 </p><p>
8808 <span class="quote">«<span class="quote">But there isn't a list of who owns property generally,</span>»</span> the
8809 apologists for the system respond. <span class="quote">«<span class="quote">Why should there be a list of
8810 copyright owners?</span>»</span>
8811 </p><p>
8812 Well, actually, if you think about it, there <span class="emphasis"><em>are</em></span>
8813 plenty of lists of who owns what property. Think about deeds on
8814 houses, or titles to cars.  And where there isn't a list, the code of
8815 real space is pretty good at suggesting who the owner of a bit of
8816 property is. (A swing set in your backyard is probably yours.) So
8817 formally or informally, we have a pretty good way to know who owns
8818 what tangible property.
8819 </p><p>
8820 So: You walk down a street and see a house. You can know who
8821 owns the house by looking it up in the courthouse registry. If you see
8822 a car, there is ordinarily a license plate that will link the owner to the
8823
8824
8825 car. If you see a bunch of children's toys sitting on the front lawn of a
8826 house, it's fairly easy to determine who owns the toys. And if you
8827                 happen
8828 to see a baseball lying in a gutter on the side of the road, look
8829 around for a second for some kids playing ball. If you don't see any
8830 kids, then okay: Here's a bit of property whose owner we can't easily
8831 determine. It is the exception that proves the rule: that we ordinarily
8832 know quite well who owns what property.
8833 </p><p>
8834 Compare this story to intangible property. You go into a library.
8835 The library owns the books. But who owns the copyrights? As I've
8836                 already
8837 described, there's no list of copyright owners. There are authors'
8838 names, of course, but their copyrights could have been assigned, or
8839 passed down in an estate like Grandma's old jewelry. To know who
8840 owns what, you would have to hire a private detective. The bottom
8841 line: The owner cannot easily be located. And in a regime like ours, in
8842 which it is a felony to use such property without the property owner's
8843 permission, the property isn't going to be used.
8844 </p><p>
8845 The consequence with respect to old books is that they won't be
8846 digitized, and hence will simply rot away on shelves. But the
8847                 consequence
8848 for other creative works is much more dire.
8849 </p><a class="indexterm" name="idxageemichael"></a><a class="indexterm" name="idp9915696"></a><a class="indexterm" name="idp9916512"></a><a class="indexterm" name="idp9917328"></a><p>
8850 Consider the story of Michael Agee, chairman of Hal Roach Studios,
8851 which owns the copyrights for the Laurel and Hardy films. Agee is a
8852 direct beneficiary of the Bono Act. The Laurel and Hardy films were
8853 made between 1921 and 1951. Only one of these films, <em class="citetitle">The Lucky Dog</em>, is
8854 currently out of copyright. But for the CTEA, films made after 1923
8855 would have begun entering the public domain. Because Agee controls the
8856 exclusive rights for these popular films, he makes a great deal of
8857 money. According to one estimate, <span class="quote">«<span class="quote">Roach has sold about 60,000
8858 videocassettes and 50,000 DVDs of the duo's silent
8859 films.</span>»</span><a href="#ftn.idp9919696" class="footnote" name="idp9919696"><sup class="footnote">[189]</sup></a>
8860 </p><p>
8861 Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in
8862 this culture: selflessness. He argued in a brief before the Supreme
8863 Court that the Sonny Bono Copyright Term Extension Act will, if left
8864 standing, destroy a whole generation of American film.
8865 </p><p>
8866 His argument is straightforward. A tiny fraction of this work has
8867
8868
8869 any continuing commercial value. The rest&#8212;to the extent it
8870 survives at all&#8212;sits in vaults gathering dust. It may be that
8871 some of this work not now commercially valuable will be deemed to be
8872 valuable by the owners of the vaults. For this to occur, however, the
8873 commercial benefit from the work must exceed the costs of making the
8874 work available for distribution.
8875 </p><p>
8876 We can't know the benefits, but we do know a lot about the costs.
8877 For most of the history of film, the costs of restoring film were very
8878 high; digital technology has lowered these costs substantially. While
8879 it cost more than $10,000 to restore a ninety-minute black-and-white
8880 film in 1993, it can now cost as little as $100 to digitize one hour of
8881 8 mm film.<a href="#ftn.idp9925008" class="footnote" name="idp9925008"><sup class="footnote">[190]</sup></a>
8882
8883 </p><p>
8884 Restoration technology is not the only cost, nor the most
8885                 important.
8886 Lawyers, too, are a cost, and increasingly, a very important one. In
8887 addition to preserving the film, a distributor needs to secure the rights.
8888 And to secure the rights for a film that is under copyright, you need to
8889 locate the copyright owner.
8890 </p><p>
8891 Or more accurately, <span class="emphasis"><em>owners</em></span>. As we've seen, there
8892 isn't only a single copyright associated with a film; there are
8893 many. There isn't a single person whom you can contact about those
8894 copyrights; there are as many as can hold the rights, which turns out
8895 to be an extremely large number. Thus the costs of clearing the rights
8896 to these films is exceptionally high.
8897 </p><p>
8898 <span class="quote">«<span class="quote">But can't you just restore the film, distribute it, and then pay the
8899 copyright owner when she shows up?</span>»</span> Sure, if you want to commit a
8900 felony. And even if you're not worried about committing a felony, when
8901 she does show up, she'll have the right to sue you for all the profits you
8902 have made. So, if you're successful, you can be fairly confident you'll be
8903 getting a call from someone's lawyer. And if you're not successful, you
8904 won't make enough to cover the costs of your own lawyer. Either way,
8905 you have to talk to a lawyer. And as is too often the case, saying you have
8906 to talk to a lawyer is the same as saying you won't make any money.
8907 </p><p>
8908 For some films, the benefit of releasing the film may well exceed
8909
8910
8911 these costs. But for the vast majority of them, there is no way the
8912                 benefit
8913 would outweigh the legal costs. Thus, for the vast majority of old
8914 films, Agee argued, the film will not be restored and distributed until
8915 the copyright expires.
8916 </p><a class="indexterm" name="idp9933040"></a><p>
8917 But by the time the copyright for these films expires, the film will
8918 have expired. These films were produced on nitrate-based stock, and
8919 nitrate stock dissolves over time. They will be gone, and the metal
8920                 canisters
8921 in which they are now stored will be filled with nothing more
8922 than dust.
8923 </p><p>
8924 <span class="strong"><strong>Of all the</strong></span> creative work produced
8925 by humans anywhere, a tiny fraction has continuing commercial
8926 value. For that tiny fraction, the copyright is a crucially important
8927 legal device. For that tiny fraction, the copyright creates incentives
8928 to produce and distribute the creative work. For that tiny fraction,
8929 the copyright acts as an <span class="quote">«<span class="quote">engine of free expression.</span>»</span>
8930 </p><p>
8931 But even for that tiny fraction, the actual time during which the
8932 creative work has a commercial life is extremely short. As I've
8933                 indicated,
8934 most books go out of print within one year. The same is true of
8935 music and film. Commercial culture is sharklike. It must keep moving.
8936 And when a creative work falls out of favor with the commercial
8937                 distributors,
8938 the commercial life ends.
8939 </p><p>
8940 Yet that doesn't mean the life of the creative work ends. We don't
8941 keep libraries of books in order to compete with Barnes &amp; Noble, and
8942 we don't have archives of films because we expect people to choose
8943                 between
8944 spending Friday night watching new movies and spending
8945                 Friday
8946 night watching a 1930 news documentary. The noncommercial life
8947 of culture is important and valuable&#8212;for entertainment but also, and
8948 more importantly, for knowledge. To understand who we are, and
8949 where we came from, and how we have made the mistakes that we
8950 have, we need to have access to this history.
8951 </p><p>
8952 Copyrights in this context do not drive an engine of free expression.
8953
8954
8955 In this context, there is no need for an exclusive right. Copyrights in
8956 this context do no good.
8957 </p><p>
8958 Yet, for most of our history, they also did little harm. For most of
8959 our history, when a work ended its commercial life, there was no
8960 <span class="emphasis"><em>copyright-related use</em></span> that would be inhibited by
8961 an exclusive right.  When a book went out of print, you could not buy
8962 it from a publisher.  But you could still buy it from a used book
8963 store, and when a used book store sells it, in America, at least,
8964 there is no need to pay the copyright owner anything. Thus, the
8965 ordinary use of a book after its commercial life ended was a use that
8966 was independent of copyright law.
8967 </p><p>
8968 The same was effectively true of film. Because the costs of restoring
8969 a film&#8212;the real economic costs, not the lawyer costs&#8212;were
8970 so high, it was never at all feasible to preserve or restore
8971 film. Like the remains of a great dinner, when it's over, it's
8972 over. Once a film passed out of its commercial life, it may have been
8973 archived for a bit, but that was the end of its life so long as the
8974 market didn't have more to offer.
8975 </p><p>
8976 In other words, though copyright has been relatively short for most
8977 of our history, long copyrights wouldn't have mattered for the works
8978 that lost their commercial value. Long copyrights for these works
8979 would not have interfered with anything.
8980 </p><p>
8981 But this situation has now changed.
8982 </p><a class="indexterm" name="idxarchivesdigital2"></a><p>
8983 One crucially important consequence of the emergence of digital
8984 technologies is to enable the archive that Brewster Kahle dreams of.
8985 Digital technologies now make it possible to preserve and give access
8986 to all sorts of knowledge. Once a book goes out of print, we can now
8987 imagine digitizing it and making it available to everyone,
8988 forever. Once a film goes out of distribution, we could digitize it
8989 and make it available to everyone, forever. Digital technologies give
8990 new life to copyrighted material after it passes out of its commercial
8991 life. It is now possible to preserve and assure universal access to
8992 this knowledge and culture, whereas before it was not.
8993 </p><p>
8994
8995 And now copyright law does get in the way. Every step of producing
8996 this digital archive of our culture infringes on the exclusive right
8997 of copyright. To digitize a book is to copy it. To do that requires
8998 permission of the copyright owner. The same with music, film, or any
8999 other aspect of our culture protected by copyright. The effort to make
9000 these things available to history, or to researchers, or to those who
9001 just want to explore, is now inhibited by a set of rules that were
9002 written for a radically different context.
9003 </p><p>
9004 Here is the core of the harm that comes from extending terms: Now that
9005 technology enables us to rebuild the library of Alexandria, the law
9006 gets in the way. And it doesn't get in the way for any useful
9007 <span class="emphasis"><em>copyright</em></span> purpose, for the purpose of copyright
9008 is to enable the commercial market that spreads culture. No, we are
9009 talking about culture after it has lived its commercial life. In this
9010 context, copyright is serving no purpose <span class="emphasis"><em>at all</em></span>
9011 related to the spread of knowledge. In this context, copyright is not
9012 an engine of free expression. Copyright is a brake.
9013 </p><p>
9014 You may well ask, <span class="quote">«<span class="quote">But if digital technologies lower the costs for
9015 Brewster Kahle, then they will lower the costs for Random House, too.
9016 So won't Random House do as well as Brewster Kahle in spreading
9017 culture widely?</span>»</span>
9018 </p><p>
9019 Maybe. Someday. But there is absolutely no evidence to suggest that
9020 publishers would be as complete as libraries. If Barnes &amp; Noble
9021 offered to lend books from its stores for a low price, would that
9022 eliminate the need for libraries? Only if you think that the only role
9023 of a library is to serve what <span class="quote">«<span class="quote">the market</span>»</span> would demand. But if you
9024 think the role of a library is bigger than this&#8212;if you think its
9025 role is to archive culture, whether there's a demand for any
9026 particular bit of that culture or not&#8212;then we can't count on the
9027 commercial market to do our library work for us.
9028 </p><a class="indexterm" name="idp9951440"></a><p>
9029 I would be the first to agree that it should do as much as it can: We
9030 should rely upon the market as much as possible to spread and enable
9031 culture. My message is absolutely not antimarket. But where we see the
9032 market is not doing the job, then we should allow nonmarket forces the
9033
9034
9035 freedom to fill the gaps. As one researcher calculated for American
9036 culture, 94 percent of the films, books, and music produced between
9037 1923 and 1946 is not commercially available. However much you love the
9038 commercial market, if access is a value, then 6 percent is a failure
9039 to provide that value.<a href="#ftn.idp9953920" class="footnote" name="idp9953920"><sup class="footnote">[191]</sup></a>
9040
9041 </p><p>
9042 <span class="strong"><strong>In January 1999</strong></span>, we filed a lawsuit
9043 on Eric Eldred's behalf in federal district court in Washington, D.C.,
9044 asking the court to declare the Sonny Bono Copyright Term Extension
9045 Act unconstitutional. The two central claims that we made were (1)
9046 that extending existing terms violated the Constitution's
9047 <span class="quote">«<span class="quote">limited Times</span>»</span> requirement, and (2) that extending terms
9048 by another twenty years violated the First Amendment.
9049 </p><p>
9050 The district court dismissed our claims without even hearing an
9051 argument.  A panel of the Court of Appeals for the D.C. Circuit also
9052 dismissed our claims, though after hearing an extensive argument. But
9053 that decision at least had a dissent, by one of the most conservative
9054 judges on that court. That dissent gave our claims life.
9055 </p><p>
9056 Judge David Sentelle said the CTEA violated the requirement that
9057 copyrights be for <span class="quote">«<span class="quote">limited Times</span>»</span> only. His argument was as elegant as
9058 it was simple: If Congress can extend existing terms, then there is no
9059 <span class="quote">«<span class="quote">stopping point</span>»</span> to Congress's power under the Copyright Clause. The
9060 power to extend existing terms means Congress is not required to grant
9061 terms that are <span class="quote">«<span class="quote">limited.</span>»</span> Thus, Judge Sentelle argued, the court had
9062 to interpret the term <span class="quote">«<span class="quote">limited Times</span>»</span> to give it meaning. And the best
9063 interpretation, Judge Sentelle argued, would be to deny Congress the
9064 power to extend existing terms.
9065 </p><p>
9066 We asked the Court of Appeals for the D.C. Circuit as a whole to
9067 hear the case. Cases are ordinarily heard in panels of three, except for
9068 important cases or cases that raise issues specific to the circuit as a
9069 whole, where the court will sit <span class="quote">«<span class="quote">en banc</span>»</span> to hear the case.
9070 </p><a class="indexterm" name="idp9962368"></a><p>
9071 The Court of Appeals rejected our request to hear the case en banc.
9072 This time, Judge Sentelle was joined by the most liberal member of the
9073
9074
9075 D.C. Circuit, Judge David Tatel. Both the most conservative and the
9076 most liberal judges in the D.C. Circuit believed Congress had
9077 overstepped its bounds.
9078 </p><p>
9079 It was here that most expected Eldred v. Ashcroft would die, for the
9080 Supreme Court rarely reviews any decision by a court of appeals. (It
9081 hears about one hundred cases a year, out of more than five thousand
9082 appeals.) And it practically never reviews a decision that upholds a
9083 statute when no other court has yet reviewed the statute.
9084 </p><p>
9085 But in February 2002, the Supreme Court surprised the world by
9086 granting our petition to review the D.C. Circuit opinion. Argument
9087 was set for October of 2002. The summer would be spent writing
9088 briefs and preparing for argument.
9089 </p><p>
9090 <span class="strong"><strong>It is over</strong></span> a year later as I write
9091 these words. It is still astonishingly hard. If you know anything at
9092 all about this story, you know that we lost the appeal. And if you
9093 know something more than just the minimum, you probably think there
9094 was no way this case could have been won. After our defeat, I received
9095 literally thousands of missives by well-wishers and supporters,
9096 thanking me for my work on behalf of this noble but doomed cause. And
9097 none from this pile was more significant to me than the e-mail from my
9098 client, Eric Eldred.
9099 </p><p>
9100 But my client and these friends were wrong. This case could have
9101 been won. It should have been won. And no matter how hard I try to
9102 retell this story to myself, I can never escape believing that my own
9103 mistake lost it.
9104 </p><a class="indexterm" name="idp9967792"></a><p>
9105 <span class="strong"><strong>The mistake</strong></span> was made early, though
9106 it became obvious only at the very end. Our case had been supported
9107 from the very beginning by an extraordinary lawyer, Geoffrey Stewart,
9108 and by the law firm he had moved to, Jones, Day, Reavis and
9109 Pogue. Jones Day took a great deal of heat
9110
9111 from its copyright-protectionist clients for supporting us. They
9112 ignored this pressure (something that few law firms today would ever
9113 do), and throughout the case, they gave it everything they could.
9114 </p><a class="indexterm" name="idp9970512"></a><a class="indexterm" name="idp9971296"></a><a class="indexterm" name="idp9972112"></a><p>
9115 There were three key lawyers on the case from Jones Day. Geoff
9116 Stewart was the first, but then Dan Bromberg and Don Ayer became
9117 quite involved. Bromberg and Ayer in particular had a common view
9118 about how this case would be won: We would only win, they repeatedly
9119 told me, if we could make the issue seem <span class="quote">«<span class="quote">important</span>»</span> to the Supreme
9120 Court. It had to seem as if dramatic harm were being done to free
9121 speech and free culture; otherwise, they would never vote against <span class="quote">«<span class="quote">the
9122 most powerful media companies in the world.</span>»</span>
9123 </p><p>
9124 I hate this view of the law. Of course I thought the Sonny Bono Act
9125 was a dramatic harm to free speech and free culture. Of course I still
9126 think it is. But the idea that the Supreme Court decides the law based
9127 on how important they believe the issues are is just wrong. It might be
9128 <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
9129 that way.</span>»</span> As I believed that any faithful interpretation of what the
9130 framers of our Constitution did would yield the conclusion that the
9131 CTEA was unconstitutional, and as I believed that any faithful
9132                 interpretation
9133 of what the First Amendment means would yield the
9134 conclusion that the power to extend existing copyright terms is
9135                 unconstitutional,
9136 I was not persuaded that we had to sell our case like soap.
9137 Just as a law that bans the swastika is unconstitutional not because the
9138 Court likes Nazis but because such a law would violate the
9139                 Constitution,
9140 so too, in my view, would the Court decide whether Congress's
9141 law was constitutional based on the Constitution, not based on whether
9142 they liked the values that the framers put in the Constitution.
9143 </p><p>
9144 In any case, I thought, the Court must already see the danger and
9145 the harm caused by this sort of law. Why else would they grant review?
9146 There was no reason to hear the case in the Supreme Court if they
9147 weren't convinced that this regulation was harmful. So in my view, we
9148 didn't need to persuade them that this law was bad, we needed to show
9149 why it was unconstitutional.
9150 </p><p>
9151 There was one way, however, in which I felt politics would matter
9152
9153
9154 and in which I thought a response was appropriate. I was convinced
9155 that the Court would not hear our arguments if it thought these were
9156 just the arguments of a group of lefty loons. This Supreme Court was
9157 not about to launch into a new field of judicial review if it seemed
9158 that this field of review was simply the preference of a small
9159 political minority.  Although my focus in the case was not to
9160 demonstrate how bad the Sonny Bono Act was but to demonstrate that it
9161 was unconstitutional, my hope was to make this argument against a
9162 background of briefs that covered the full range of political
9163 views. To show that this claim against the CTEA was grounded in
9164 <span class="emphasis"><em>law</em></span> and not politics, then, we tried to gather
9165 the widest range of credible critics&#8212;credible not because they
9166 were rich and famous, but because they, in the aggregate, demonstrated
9167 that this law was unconstitutional regardless of one's politics.
9168 </p><a class="indexterm" name="idp9980848"></a><a class="indexterm" name="idp9981632"></a><p>
9169 The first step happened all by itself. Phyllis Schlafly's
9170 organization, Eagle Forum, had been an opponent of the CTEA from the
9171 very beginning.  Mrs. Schlafly viewed the CTEA as a sellout by
9172 Congress. In November 1998, she wrote a stinging editorial attacking
9173 the Republican Congress for allowing the law to pass. As she wrote,
9174 <span class="quote">«<span class="quote">Do you sometimes wonder why bills that create a financial windfall to
9175 narrow special interests slide easily through the intricate
9176 legislative process, while bills that benefit the general public seem
9177 to get bogged down?</span>»</span>  The answer, as the editorial documented, was the
9178 power of money.  Schlafly enumerated Disney's contributions to the key
9179 players on the committees. It was money, not justice, that gave Mickey
9180 Mouse twenty more years in Disney's control, Schlafly argued.
9181 </p><p>
9182 In the Court of Appeals, Eagle Forum was eager to file a brief
9183 supporting our position. Their brief made the argument that became the
9184 core claim in the Supreme Court: If Congress can extend the term of
9185 existing copyrights, there is no limit to Congress's power to set
9186 terms.  That strong conservative argument persuaded a strong
9187 conservative judge, Judge Sentelle.
9188 </p><a class="indexterm" name="idp9984848"></a><a class="indexterm" name="idp9985680"></a><a class="indexterm" name="idp9986496"></a><a class="indexterm" name="idp9987312"></a><p>
9189 In the Supreme Court, the briefs on our side were about as diverse as
9190 it gets. They included an extraordinary historical brief by the Free
9191
9192
9193 Software Foundation (home of the GNU project that made GNU/Linux
9194 possible). They included a powerful brief about the costs of
9195 uncertainty by Intel. There were two law professors' briefs, one by
9196 copyright scholars and one by First Amendment scholars. There was an
9197 exhaustive and uncontroverted brief by the world's experts in the
9198 history of the Progress Clause. And of course, there was a new brief
9199 by Eagle Forum, repeating and strengthening its arguments.
9200 </p><a class="indexterm" name="idp9989472"></a><a class="indexterm" name="idp9990272"></a><p>
9201 Those briefs framed a legal argument. Then to support the legal
9202 argument, there were a number of powerful briefs by libraries and
9203 archives, including the Internet Archive, the American Association of
9204 Law Libraries, and the National Writers Union.
9205 </p><a class="indexterm" name="idp9991744"></a><p>
9206 But two briefs captured the policy argument best. One made the
9207 argument I've already described: A brief by Hal Roach Studios argued
9208 that unless the law was struck, a whole generation of American film
9209 would disappear. The other made the economic argument absolutely
9210 clear.
9211 </p><a class="indexterm" name="idp9993232"></a><a class="indexterm" name="idp9994048"></a><a class="indexterm" name="idp9994864"></a><a class="indexterm" name="idp9995680"></a><a class="indexterm" name="idp9996496"></a><p>
9212 This economists' brief was signed by seventeen economists, including
9213 five Nobel Prize winners, including Ronald Coase, James Buchanan,
9214 Milton Friedman, Kenneth Arrow, and George Akerlof. The economists, as
9215 the list of Nobel winners demonstrates, spanned the political
9216 spectrum. Their conclusions were powerful: There was no plausible
9217 claim that extending the terms of existing copyrights would do
9218 anything to increase incentives to create. Such extensions were
9219 nothing more than <span class="quote">«<span class="quote">rent-seeking</span>»</span>&#8212;the fancy term economists use
9220 to describe special-interest legislation gone wild.
9221 </p><a class="indexterm" name="idp9998640"></a><a class="indexterm" name="idp9999424"></a><a class="indexterm" name="idp10000240"></a><a class="indexterm" name="idp10001056"></a><p>
9222 The same effort at balance was reflected in the legal team we gathered
9223 to write our briefs in the case. The Jones Day lawyers had been with
9224 us from the start. But when the case got to the Supreme Court, we
9225 added three lawyers to help us frame this argument to this Court: Alan
9226 Morrison, a lawyer from Public Citizen, a Washington group that had
9227 made constitutional history with a series of seminal victories in the
9228 Supreme Court defending individual rights; my colleague and dean,
9229 Kathleen Sullivan, who had argued many cases in the Court, and
9230
9231
9232 who had advised us early on about a First Amendment strategy; and
9233 finally, former solicitor general Charles Fried.
9234 </p><a class="indexterm" name="idp10003264"></a><a class="indexterm" name="idp10004048"></a><a class="indexterm" name="idp10005168"></a><p>
9235 Fried was a special victory for our side. Every other former solicitor
9236 general was hired by the other side to defend Congress's power to give
9237 media companies the special favor of extended copyright terms. Fried
9238 was the only one who turned down that lucrative assignment to stand up
9239 for something he believed in. He had been Ronald Reagan's chief lawyer
9240 in the Supreme Court. He had helped craft the line of cases that
9241 limited Congress's power in the context of the Commerce Clause. And
9242 while he had argued many positions in the Supreme Court that I
9243 personally disagreed with, his joining the cause was a vote of
9244 confidence in our argument.
9245 </p><p>
9246 The government, in defending the statute, had its collection of
9247 friends, as well. Significantly, however, none of these <span class="quote">«<span class="quote">friends</span>»</span> included
9248 historians or economists. The briefs on the other side of the case were
9249 written exclusively by major media companies, congressmen, and
9250 copyright holders.
9251 </p><p>
9252 The media companies were not surprising. They had the most to gain
9253 from the law. The congressmen were not surprising either&#8212;they
9254 were defending their power and, indirectly, the gravy train of
9255 contributions such power induced. And of course it was not surprising
9256 that the copyright holders would defend the idea that they should
9257 continue to have the right to control who did what with content they
9258 wanted to control.
9259 </p><a class="indexterm" name="idp10008688"></a><a class="indexterm" name="idp10010080"></a><a class="indexterm" name="idp10010896"></a><p>
9260 Dr. Seuss's representatives, for example, argued that it was
9261 better for the Dr. Seuss estate to control what happened to
9262 Dr. Seuss's work&#8212; better than allowing it to fall into the
9263 public domain&#8212;because if this creativity were in the public
9264 domain, then people could use it to <span class="quote">«<span class="quote">glorify drugs or to create
9265 pornography.</span>»</span><a href="#ftn.idp10012640" class="footnote" name="idp10012640"><sup class="footnote">[192]</sup></a>
9266 That was also the motive of the Gershwin estate, which defended its
9267 <span class="quote">«<span class="quote">protection</span>»</span> of the work of George Gershwin. They refuse, for example,
9268 to license <em class="citetitle">Porgy and Bess</em> to anyone who refuses to use African
9269 Americans in the cast.<a href="#ftn.idp10015456" class="footnote" name="idp10015456"><sup class="footnote">[193]</sup></a>
9270 That's
9271
9272 their view of how this part of American culture should be controlled,
9273 and they wanted this law to help them effect that control.
9274 </p><p>
9275 This argument made clear a theme that is rarely noticed in this
9276 debate.  When Congress decides to extend the term of existing
9277 copyrights, Congress is making a choice about which speakers it will
9278 favor.  Famous and beloved copyright owners, such as the Gershwin
9279 estate and Dr. Seuss, come to Congress and say, <span class="quote">«<span class="quote">Give us twenty years
9280 to control the speech about these icons of American culture. We'll do
9281 better with them than anyone else.</span>»</span> Congress of course likes to reward
9282 the popular and famous by giving them what they want. But when
9283 Congress gives people an exclusive right to speak in a certain way,
9284 that's just what the First Amendment is traditionally meant to block.
9285 </p><p>
9286 We argued as much in a final brief. Not only would upholding the CTEA
9287 mean that there was no limit to the power of Congress to extend
9288 copyrights&#8212;extensions that would further concentrate the market;
9289 it would also mean that there was no limit to Congress's power to play
9290 favorites, through copyright, with who has the right to speak.
9291 </p><p>
9292 <span class="strong"><strong>Between February</strong></span> and October, there
9293 was little I did beyond preparing for this case. Early on, as I said,
9294 I set the strategy.
9295 </p><a class="indexterm" name="idp10021280"></a><a class="indexterm" name="idp10022096"></a><p>
9296 The Supreme Court was divided into two important camps. One camp we
9297 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
9298 Conservatives included Chief Justice Rehnquist, Justice O'Connor,
9299 Justice Scalia, Justice Kennedy, and Justice Thomas. These five had
9300 been the most consistent in limiting Congress's power. They were the
9301 five who had supported the <em class="citetitle">Lopez/Morrison</em> line
9302 of cases that said that an enumerated power had to be interpreted to
9303 assure that Congress's powers had limits.
9304 </p><a class="indexterm" name="idp10025056"></a><a class="indexterm" name="idxginsburg"></a><p>
9305 The Rest were the four Justices who had strongly opposed limits on
9306 Congress's power. These four&#8212;Justice Stevens, Justice Souter,
9307 Justice Ginsburg, and Justice Breyer&#8212;had repeatedly argued that
9308 the Constitution
9309
9310 gives Congress broad discretion to decide how best to implement its
9311 powers. In case after case, these justices had argued that the Court's
9312 role should be one of deference. Though the votes of these four
9313 justices were the votes that I personally had most consistently agreed
9314 with, they were also the votes that we were least likely to get.
9315 </p><p>
9316 In particular, the least likely was Justice Ginsburg's. In addition to
9317 her general view about deference to Congress (except where issues of
9318 gender are involved), she had been particularly deferential in the
9319 context of intellectual property protections. She and her daughter (an
9320 excellent and well-known intellectual property scholar) were cut from
9321 the same intellectual property cloth. We expected she would agree with
9322 the writings of her daughter: that Congress had the power in this
9323 context to do as it wished, even if what Congress wished made little
9324 sense.
9325 </p><a class="indexterm" name="idp10029792"></a><p>
9326 Close behind Justice Ginsburg were two justices whom we also viewed as
9327 unlikely allies, though possible surprises. Justice Souter strongly
9328 favored deference to Congress, as did Justice Breyer. But both were
9329 also very sensitive to free speech concerns. And as we strongly
9330 believed, there was a very important free speech argument against
9331 these retrospective extensions.
9332 </p><a class="indexterm" name="idp10031232"></a><p>
9333 The only vote we could be confident about was that of Justice
9334 Stevens. History will record Justice Stevens as one of the greatest
9335 judges on this Court. His votes are consistently eclectic, which just
9336 means that no simple ideology explains where he will stand. But he
9337 had consistently argued for limits in the context of intellectual property
9338 generally. We were fairly confident he would recognize limits here.
9339 </p><p>
9340 This analysis of <span class="quote">«<span class="quote">the Rest</span>»</span> showed most clearly where our focus had to
9341 be: on the Conservatives. To win this case, we had to crack open these
9342 five and get at least a majority to go our way. Thus, the single
9343 overriding argument that animated our claim rested on the
9344 Conservatives' most important jurisprudential innovation&#8212;the
9345 argument that Judge Sentelle had relied upon in the Court of Appeals,
9346 that Congress's power must be interpreted so that its enumerated
9347 powers have limits.
9348 </p><p>
9349 This then was the core of our strategy&#8212;a strategy for which I am
9350 responsible. We would get the Court to see that just as with the
9351 <em class="citetitle">Lopez</em>
9352
9353 case, under the government's argument here, Congress would always have
9354 unlimited power to extend existing terms. If anything was plain about
9355 Congress's power under the Progress Clause, it was that this power was
9356 supposed to be <span class="quote">«<span class="quote">limited.</span>»</span> Our aim would be to get the Court to
9357 reconcile <em class="citetitle">Eldred</em> with
9358 <em class="citetitle">Lopez</em>: If Congress's power to regulate commerce
9359 was limited, then so, too, must Congress's power to regulate copyright
9360 be limited.
9361 </p><p>
9362 <span class="strong"><strong>The argument</strong></span> on the government's
9363 side came down to this: Congress has done it before. It should be
9364 allowed to do it again. The government claimed that from the very
9365 beginning, Congress has been extending the term of existing
9366 copyrights. So, the government argued, the Court should not now say
9367 that practice is unconstitutional.
9368 </p><p>
9369 There was some truth to the government's claim, but not much. We
9370 certainly agreed that Congress had extended existing terms in 1831
9371 and in 1909. And of course, in 1962, Congress began extending
9372                 existing
9373 terms regularly&#8212;eleven times in forty years.
9374 </p><p>
9375 But this <span class="quote">«<span class="quote">consistency</span>»</span> should be kept in perspective. Congress
9376                 extended
9377 existing terms once in the first hundred years of the Republic.
9378 It then extended existing terms once again in the next fifty. Those rare
9379 extensions are in contrast to the now regular practice of extending
9380                 existing
9381 terms. Whatever restraint Congress had had in the past, that
9382                 restraint
9383 was now gone. Congress was now in a cycle of extensions; there
9384 was no reason to expect that cycle would end. This Court had not
9385                 hesitated
9386 to intervene where Congress was in a similar cycle of extension.
9387 There was no reason it couldn't intervene here.
9388 </p><p>
9389 <span class="strong"><strong>Oral argument</strong></span> was scheduled for the
9390 first week in October. I arrived in D.C. two weeks before the
9391 argument. During those two weeks, I was repeatedly
9392 <span class="quote">«<span class="quote">mooted</span>»</span> by lawyers who had volunteered to
9393
9394
9395 help in the case. Such <span class="quote">«<span class="quote">moots</span>»</span> are basically practice rounds, where
9396 wannabe justices fire questions at wannabe winners.
9397 </p><p>
9398 I was convinced that to win, I had to keep the Court focused on a
9399 single point: that if this extension is permitted, then there is no limit to
9400 the power to set terms. Going with the government would mean that
9401 terms would be effectively unlimited; going with us would give
9402                 Congress
9403 a clear line to follow: Don't extend existing terms. The moots
9404 were an effective practice; I found ways to take every question back to
9405 this central idea.
9406 </p><a class="indexterm" name="idp10044576"></a><a class="indexterm" name="idp10045392"></a><a class="indexterm" name="idp10046208"></a><p>
9407 One moot was before the lawyers at Jones Day. Don Ayer was the
9408 skeptic. He had served in the Reagan Justice Department with Solicitor
9409 General Charles Fried. He had argued many cases before the Supreme
9410 Court. And in his review of the moot, he let his concern speak:
9411 </p><p>
9412 <span class="quote">«<span class="quote">I'm just afraid that unless they really see the harm, they won't be
9413 willing to upset this practice that the government says has been a
9414 consistent practice for two hundred years. You have to make them see
9415 the harm&#8212;passionately get them to see the harm. For if they
9416 don't see that, then we haven't any chance of winning.</span>»</span>
9417 </p><a class="indexterm" name="idp10048928"></a><p>
9418 He may have argued many cases before this Court, I thought, but
9419 he didn't understand its soul. As a clerk, I had seen the Justices do the
9420 right thing&#8212;not because of politics but because it was right. As a law
9421 professor, I had spent my life teaching my students that this Court
9422 does the right thing&#8212;not because of politics but because it is right. As
9423 I listened to Ayer's plea for passion in pressing politics, I understood
9424 his point, and I rejected it. Our argument was right. That was enough.
9425 Let the politicians learn to see that it was also good.
9426 </p><p>
9427 <span class="strong"><strong>The night before</strong></span> the argument, a
9428 line of people began to form in front of the Supreme Court. The case
9429 had become a focus of the press and of the movement to free
9430 culture. Hundreds stood in line
9431
9432
9433 for the chance to see the proceedings. Scores spent the night on the
9434 Supreme Court steps so that they would be assured a seat.
9435 </p><p>
9436 Not everyone has to wait in line. People who know the Justices can
9437 ask for seats they control. (I asked Justice Scalia's chambers for seats for
9438 my parents, for example.) Members of the Supreme Court bar can get
9439 a seat in a special section reserved for them. And senators and
9440                 congressmen
9441 have a special place where they get to sit, too. And finally, of
9442 course, the press has a gallery, as do clerks working for the Justices on
9443 the Court. As we entered that morning, there was no place that was
9444 not taken. This was an argument about intellectual property law, yet
9445 the halls were filled. As I walked in to take my seat at the front of the
9446 Court, I saw my parents sitting on the left. As I sat down at the table,
9447 I saw Jack Valenti sitting in the special section ordinarily reserved for
9448 family of the Justices.
9449 </p><p>
9450 When the Chief Justice called me to begin my argument, I began
9451 where I intended to stay: on the question of the limits on Congress's
9452 power. This was a case about enumerated powers, I said, and whether
9453 those enumerated powers had any limit.
9454 </p><a class="indexterm" name="idp10054160"></a><p>
9455 Justice O'Connor stopped me within one minute of my opening.
9456 The history was bothering her.
9457 </p><div class="blockquote"><blockquote class="blockquote"><p>
9458 justice o'connor: Congress has extended the term so often
9459 through the years, and if you are right, don't we run the risk of
9460 upsetting previous extensions of time? I mean, this seems to be a
9461 practice that began with the very first act.
9462 </p></blockquote></div><p>
9463 She was quite willing to concede <span class="quote">«<span class="quote">that this flies directly in the face
9464 of what the framers had in mind.</span>»</span> But my response again and again
9465 was to emphasize limits on Congress's power.
9466 </p><div class="blockquote"><blockquote class="blockquote"><p>
9467 mr. lessig: Well, if it flies in the face of what the framers had in
9468 mind, then the question is, is there a way of interpreting their
9469
9470 words that gives effect to what they had in mind, and the answer
9471 is yes.
9472 </p></blockquote></div><p>
9473 There were two points in this argument when I should have seen
9474 where the Court was going. The first was a question by Justice
9475 Kennedy, who observed,
9476 </p><div class="blockquote"><blockquote class="blockquote"><p>
9477 justice kennedy: Well, I suppose implicit in the argument that
9478 the '76 act, too, should have been declared void, and that we
9479 might leave it alone because of the disruption, is that for all these
9480 years the act has impeded progress in science and the useful arts.
9481 I just don't see any empirical evidence for that.
9482 </p></blockquote></div><p>
9483 Here follows my clear mistake. Like a professor correcting a
9484                 student,
9485 I answered,
9486 </p><div class="blockquote"><blockquote class="blockquote"><p>
9487 mr. lessig: Justice, we are not making an empirical claim at all.
9488 Nothing in our Copyright Clause claim hangs upon the empirical
9489 assertion about impeding progress. Our only argument is this is a
9490 structural limit necessary to assure that what would be an effectively
9491 perpetual term not be permitted under the copyright laws.
9492 </p></blockquote></div><a class="indexterm" name="idp10062016"></a><p>
9493 That was a correct answer, but it wasn't the right answer. The right
9494 answer was instead that there was an obvious and profound harm. Any
9495 number of briefs had been written about it. He wanted to hear it. And
9496 here was the place Don Ayer's advice should have mattered. This was a
9497 softball; my answer was a swing and a miss.
9498 </p><p>
9499 The second came from the Chief, for whom the whole case had been
9500 crafted. For the Chief Justice had crafted the <em class="citetitle">Lopez</em> ruling,
9501 and we hoped that he would see this case as its second cousin.
9502 </p><p>
9503 It was clear a second into his question that he wasn't at all
9504 sympathetic.  To him, we were a bunch of anarchists. As he asked:
9505
9506
9507 </p><div class="blockquote"><blockquote class="blockquote"><p>
9508 chief justice: Well, but you want more than that. You want the
9509 right to copy verbatim other people's books, don't you?
9510 </p><p>
9511 mr. lessig: We want the right to copy verbatim works that
9512 should be in the public domain and would be in the public
9513                 domain
9514 but for a statute that cannot be justified under ordinary First
9515 Amendment analysis or under a proper reading of the limits built
9516 into the Copyright Clause.
9517 </p></blockquote></div><a class="indexterm" name="idp10066992"></a><p>
9518 Things went better for us when the government gave its argument;
9519 for now the Court picked up on the core of our claim. As Justice Scalia
9520 asked Solicitor General Olson,
9521 </p><div class="blockquote"><blockquote class="blockquote"><p>
9522 justice scalia: You say that the functional equivalent of an unlimited
9523 time would be a violation [of the Constitution], but that's precisely
9524 the argument that's being made by petitioners here, that a limited
9525 time which is extendable is the functional equivalent of an unlimited
9526 time.
9527 </p></blockquote></div><p>
9528 When Olson was finished, it was my turn to give a closing rebuttal.
9529 Olson's flailing had revived my anger. But my anger still was directed
9530 to the academic, not the practical. The government was arguing as if
9531 this were the first case ever to consider limits on Congress's
9532 Copyright and Patent Clause power. Ever the professor and not the
9533 advocate, I closed by pointing out the long history of the Court
9534 imposing limits on Congress's power in the name of the Copyright and
9535 Patent Clause&#8212; indeed, the very first case striking a law of
9536 Congress as exceeding a specific enumerated power was based upon the
9537 Copyright and Patent Clause. All true. But it wasn't going to move the
9538 Court to my side.
9539 </p><p>
9540 <span class="strong"><strong>As I left</strong></span> the court that day, I
9541 knew there were a hundred points I wished I could remake. There were a
9542 hundred questions I wished I had
9543
9544
9545 answered differently. But one way of thinking about this case left me
9546 optimistic.
9547 </p><p>
9548 The government had been asked over and over again, what is the limit?
9549 Over and over again, it had answered there is no limit. This was
9550 precisely the answer I wanted the Court to hear. For I could not
9551 imagine how the Court could understand that the government believed
9552 Congress's power was unlimited under the terms of the Copyright
9553 Clause, and sustain the government's argument. The solicitor general
9554 had made my argument for me. No matter how often I tried, I could not
9555 understand how the Court could find that Congress's power under the
9556 Commerce Clause was limited, but under the Copyright Clause,
9557 unlimited. In those rare moments when I let myself believe that we may
9558 have prevailed, it was because I felt this Court&#8212;in particular,
9559 the Conservatives&#8212;would feel itself constrained by the rule of
9560 law that it had established elsewhere.
9561 </p><p>
9562 <span class="strong"><strong>The morning</strong></span> of January 15, 2003, I
9563 was five minutes late to the office and missed the 7:00 A.M. call from
9564 the Supreme Court clerk. Listening to the message, I could tell in an
9565 instant that she had bad news to report.The Supreme Court had affirmed
9566 the decision of the Court of Appeals. Seven justices had voted in the
9567 majority. There were two dissents.
9568 </p><p>
9569 A few seconds later, the opinions arrived by e-mail. I took the
9570 phone off the hook, posted an announcement to our blog, and sat
9571 down to see where I had been wrong in my reasoning.
9572 </p><p>
9573 My <span class="emphasis"><em>reasoning</em></span>. Here was a case that pitted all the
9574 money in the world against <span class="emphasis"><em>reasoning</em></span>. And here
9575 was the last naïve law professor, scouring the pages, looking for
9576 reasoning.
9577 </p><p>
9578 I first scoured the opinion, looking for how the Court would
9579 distinguish the principle in this case from the principle in
9580 <em class="citetitle">Lopez</em>. The argument was nowhere to be found. The case was not even
9581 cited. The argument that was the core argument of our case did not
9582 even appear in the Court's opinion.
9583 </p><a class="indexterm" name="idp10078016"></a><p>
9584
9585
9586 Justice Ginsburg simply ignored the enumerated powers argument.
9587 Consistent with her view that Congress's power was not limited
9588 generally, she had found Congress's power not limited here.
9589 </p><p>
9590 Her opinion was perfectly reasonable&#8212;for her, and for Justice
9591 Souter. Neither believes in <em class="citetitle">Lopez</em>. It would be too much to expect them
9592 to write an opinion that recognized, much less explained, the doctrine
9593 they had worked so hard to defeat.
9594 </p><p>
9595 But as I realized what had happened, I couldn't quite believe what I
9596 was reading. I had said there was no way this Court could reconcile
9597 limited powers with the Commerce Clause and unlimited powers with the
9598 Progress Clause. It had never even occurred to me that they could
9599 reconcile the two simply <span class="emphasis"><em>by not addressing the
9600 argument</em></span>. There was no inconsistency because they would not
9601 talk about the two together.  There was therefore no principle that
9602 followed from the <em class="citetitle">Lopez</em> case: In that context, Congress's power would
9603 be limited, but in this context it would not.
9604 </p><p>
9605 Yet by what right did they get to choose which of the framers' values
9606 they would respect? By what right did they&#8212;the silent
9607 five&#8212;get to select the part of the Constitution they would
9608 enforce based on the values they thought important? We were right back
9609 to the argument that I said I hated at the start: I had failed to
9610 convince them that the issue here was important, and I had failed to
9611 recognize that however much I might hate a system in which the Court
9612 gets to pick the constitutional values that it will respect, that is
9613 the system we have.
9614 </p><a class="indexterm" name="idp10080080"></a><p>
9615 Justices Breyer and Stevens wrote very strong dissents. Stevens's
9616 opinion was crafted internal to the law: He argued that the tradition
9617 of intellectual property law should not support this unjustified
9618 extension of terms. He based his argument on a parallel analysis that
9619 had governed in the context of patents (so had we). But the rest of
9620 the Court discounted the parallel&#8212;without explaining how the
9621 very same words in the Progress Clause could come to mean totally
9622 different things depending upon whether the words were about patents
9623 or copyrights.  The Court let Justice Stevens's charge go unanswered.
9624 </p><a class="indexterm" name="idp10085216"></a><p>
9625
9626 Justice Breyer's opinion, perhaps the best opinion he has ever
9627 written, was external to the Constitution. He argued that the term of
9628 copyrights has become so long as to be effectively unlimited. We had
9629 said that under the current term, a copyright gave an author 99.8
9630 percent of the value of a perpetual term. Breyer said we were wrong,
9631 that the actual number was 99.9997 percent of a perpetual term. Either
9632 way, the point was clear: If the Constitution said a term had to be
9633 <span class="quote">«<span class="quote">limited,</span>»</span> and the existing term was so long as to be effectively
9634 unlimited, then it was unconstitutional.
9635 </p><p>
9636 These two justices understood all the arguments we had made. But
9637 because neither believed in the <em class="citetitle">Lopez</em> case, neither was willing to push
9638 it as a reason to reject this extension. The case was decided without
9639 anyone having addressed the argument that we had carried from Judge
9640 Sentelle. It was <em class="citetitle">Hamlet</em> without the Prince.
9641 </p><p>
9642 <span class="strong"><strong>Defeat brings depression</strong></span>. They say
9643 it is a sign of health when depression gives way to anger. My anger
9644 came quickly, but it didn't cure the depression. This anger was of two
9645 sorts.
9646 </p><a class="indexterm" name="idp10091360"></a><p>
9647 It was first anger with the five <span class="quote">«<span class="quote">Conservatives.</span>»</span> It would have been
9648 one thing for them to have explained why the principle of <em class="citetitle">Lopez</em> didn't
9649 apply in this case. That wouldn't have been a very convincing
9650 argument, I don't believe, having read it made by others, and having
9651 tried to make it myself. But it at least would have been an act of
9652 integrity.  These justices in particular have repeatedly said that the
9653 proper mode of interpreting the Constitution is <span class="quote">«<span class="quote">originalism</span>»</span>&#8212;to
9654 first understand the framers' text, interpreted in their context, in
9655 light of the structure of the Constitution. That method had produced
9656 <em class="citetitle">Lopez</em> and many other <span class="quote">«<span class="quote">originalist</span>»</span> rulings. Where was their
9657 <span class="quote">«<span class="quote">originalism</span>»</span> now?
9658 </p><p>
9659 Here, they had joined an opinion that never once tried to explain
9660 what the framers had meant by crafting the Progress Clause as they
9661 did; they joined an opinion that never once tried to explain how the
9662 structure of that clause would affect the interpretation of Congress's
9663
9664
9665 power. And they joined an opinion that didn't even try to explain why
9666 this grant of power could be unlimited, whereas the Commerce Clause
9667 would be limited. In short, they had joined an opinion that did not
9668 apply to, and was inconsistent with, their own method for interpreting
9669 the Constitution. This opinion may well have yielded a result that
9670 they liked. It did not produce a reason that was consistent with their
9671 own principles.
9672 </p><p>
9673 My anger with the Conservatives quickly yielded to anger with
9674                 myself.
9675 For I had let a view of the law that I liked interfere with a view of
9676 the law as it is.
9677 </p><a class="indexterm" name="idp10097808"></a><p>
9678 Most lawyers, and most law professors, have little patience for
9679 idealism about courts in general and this Supreme Court in particular.
9680 Most have a much more pragmatic view. When Don Ayer said that this
9681 case would be won based on whether I could convince the Justices that
9682 the framers' values were important, I fought the idea, because I
9683 didn't want to believe that that is how this Court decides. I insisted
9684 on arguing this case as if it were a simple application of a set of
9685 principles.  I had an argument that followed in logic. I didn't need
9686 to waste my time showing it should also follow in popularity.
9687 </p><p>
9688 As I read back over the transcript from that argument in October, I
9689 can see a hundred places where the answers could have taken the
9690 conversation in different directions, where the truth about the harm
9691 that this unchecked power will cause could have been made clear to
9692 this Court. Justice Kennedy in good faith wanted to be shown. I,
9693 idiotically, corrected his question. Justice Souter in good faith
9694 wanted to be shown the First Amendment harms. I, like a math teacher,
9695 reframed the question to make the logical point. I had shown them how
9696 they could strike this law of Congress if they wanted to. There were a
9697 hundred places where I could have helped them want to, yet my
9698 stubbornness, my refusal to give in, stopped me. I have stood before
9699 hundreds of audiences trying to persuade; I have used passion in that
9700 effort to persuade; but I
9701
9702 refused to stand before this audience and try to persuade with the
9703 passion I had used elsewhere. It was not the basis on which a court
9704 should decide the issue.
9705 </p><a class="indexterm" name="idp10101328"></a><a class="indexterm" name="idp10102112"></a><p>
9706 Would it have been different if I had argued it differently? Would it
9707 have been different if Don Ayer had argued it? Or Charles Fried? Or
9708 Kathleen Sullivan?
9709 </p><p>
9710 My friends huddled around me to insist it would not. The Court
9711 was not ready, my friends insisted. This was a loss that was destined. It
9712 would take a great deal more to show our society why our framers were
9713 right. And when we do that, we will be able to show that Court.
9714 </p><p>
9715 Maybe, but I doubt it. These Justices have no financial interest in
9716 doing anything except the right thing. They are not lobbied. They have
9717 little reason to resist doing right. I can't help but think that if I had
9718 stepped down from this pretty picture of dispassionate justice, I could
9719 have persuaded.
9720 </p><a class="indexterm" name="idp10104864"></a><p>
9721 And even if I couldn't, then that doesn't excuse what happened in
9722 January. For at the start of this case, one of America's leading
9723 intellectual property professors stated publicly that my bringing this
9724 case was a mistake. <span class="quote">«<span class="quote">The Court is not ready,</span>»</span> Peter Jaszi said; this
9725 issue should not be raised until it is.
9726 </p><p>
9727 After the argument and after the decision, Peter said to me, and
9728 publicly, that he was wrong. But if indeed that Court could not have
9729 been persuaded, then that is all the evidence that's needed to know that
9730 here again Peter was right. Either I was not ready to argue this case in
9731 a way that would do some good or they were not ready to hear this case
9732 in a way that would do some good. Either way, the decision to bring
9733 this case&#8212;a decision I had made four years before&#8212;was wrong.
9734 </p><p>
9735 <span class="strong"><strong>While the reaction</strong></span> to the Sonny
9736 Bono Act itself was almost unanimously negative, the reaction to the
9737 Court's decision was mixed.  No one, at least in the press, tried to
9738 say that extending the term of copyright was a good idea. We had won
9739 that battle over ideas. Where
9740
9741
9742 the decision was praised, it was praised by papers that had been
9743 skeptical of the Court's activism in other cases. Deference was a good
9744 thing, even if it left standing a silly law. But where the decision
9745 was attacked, it was attacked because it left standing a silly and
9746 harmful law. <em class="citetitle">The New York Times</em> wrote in its editorial,
9747 </p><div class="blockquote"><blockquote class="blockquote"><p>
9748 In effect, the Supreme Court's decision makes it likely that we are
9749 seeing the beginning of the end of public domain and the birth of
9750 copyright perpetuity. The public domain has been a grand experiment,
9751 one that should not be allowed to die. The ability to draw freely on
9752 the entire creative output of humanity is one of the reasons we live
9753 in a time of such fruitful creative ferment.
9754 </p></blockquote></div><p>
9755 The best responses were in the cartoons. There was a gaggle of
9756 hilarious images&#8212;of Mickey in jail and the like. The best, from
9757 my view of the case, was Ruben Bolling's, reproduced in
9758 <a class="xref" href="#fig-18" title="Figure 13.1. Tom the Dancing Bug cartoon">Figure 13.1, &#8220;Tom the Dancing Bug cartoon&#8221;</a>. The <span class="quote">«<span class="quote">powerful and wealthy</span>»</span> line is a bit
9759 unfair. But the punch in the face felt exactly like that.
9760 <a class="indexterm" name="idp10113008"></a>
9761 </p><div class="figure-float" style="float: left;"><div class="figure"><a name="fig-18"></a><p class="title"><b>Figure 13.1. Tom the Dancing Bug cartoon</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%" alt="Tom the Dancing Bug cartoon"></td></tr></table></div><a class="indexterm" name="idp10116336"></a></div></div><br class="figure-break"></div><p>
9762 The image that will always stick in my head is that evoked by the
9763 quote from <em class="citetitle">The New York Times</em>. That <span class="quote">«<span class="quote">grand experiment</span>»</span> we call the
9764 <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,
9765 I shrunk the Constitution.</span>»</span> But I can rarely make light of it. We had
9766 in our Constitution a commitment to free culture. In the case that I
9767 fathered, the Supreme Court effectively renounced that commitment. A
9768 better lawyer would have made them see differently.
9769 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp9776032" class="footnote"><p><a href="#idp9776032" class="para"><sup class="para">[179] </sup></a>
9770
9771 <a class="indexterm" name="idp9776768"></a>
9772 There's a parallel here with pornography that is a bit hard to
9773 describe, but it's a strong one. One phenomenon that the Internet
9774 created was a world of noncommercial pornographers&#8212;people who
9775 were distributing porn but were not making money directly or
9776 indirectly from that distribution.  Such a class didn't exist before
9777 the Internet came into being because the costs of distributing porn
9778 were so high. Yet this new class of distributors got special attention
9779 in the Supreme Court, when the Court struck down the Communications
9780 Decency Act of 1996. It was partly because of the burden on
9781 noncommercial speakers that the statute was found to exceed Congress's
9782 power. The same point could have been made about noncommercial
9783 publishers after the advent of the Internet. The Eric Eldreds of the
9784 world before the Internet were extremely few. Yet one would think it
9785 at least as important to protect the Eldreds of the world as to
9786 protect noncommercial pornographers.</p></div><div id="ftn.idp9800304" class="footnote"><p><a href="#idp9800304" class="para"><sup class="para">[180] </sup></a>
9787
9788 <a class="indexterm" name="idp9801008"></a>
9789 <a class="indexterm" name="idp9801792"></a>
9790 The full text is: <span class="quote">«<span class="quote">Sonny [Bono] wanted the term of copyright
9791 protection to last forever. I am informed by staff that such a change
9792 would violate the Constitution. I invite all of you to work with me to
9793 strengthen our copyright laws in all of the ways available to us. As
9794 you know, there is also Jack Valenti's proposal for a term to last
9795 forever less one day. Perhaps the Committee may look at that next
9796 Congress,</span>»</span> 144 Cong. Rec. H9946, 9951-2 (October 7, 1998).
9797 </p></div><div id="ftn.idp9854416" class="footnote"><p><a href="#idp9854416" class="para"><sup class="para">[181] </sup></a>
9798  Associated Press, <span class="quote">«<span class="quote">Disney Lobbying for Copyright Extension No Mickey
9799 Mouse Effort; Congress OKs Bill Granting Creators 20 More Years,</span>»</span>
9800 <em class="citetitle">Chicago Tribune</em>, 17 October 1998, 22.
9801 </p></div><div id="ftn.idp9856416" class="footnote"><p><a href="#idp9856416" class="para"><sup class="para">[182] </sup></a>
9802  See Nick Brown, <span class="quote">«<span class="quote">Fair Use No More?: Copyright in the Information
9803 Age,</span>»</span> available at
9804 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #49</a>.
9805 </p></div><div id="ftn.idp9858528" class="footnote"><p><a href="#idp9858528" class="para"><sup class="para">[183] </sup></a>
9806
9807 Alan K. Ota, <span class="quote">«<span class="quote">Disney in Washington: The Mouse That Roars,</span>»</span>
9808 <em class="citetitle">Congressional Quarterly This Week</em>, 8 August 1990, available at
9809 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #50</a>.
9810 </p></div><div id="ftn.idp9874672" class="footnote"><p><a href="#idp9874672" class="para"><sup class="para">[184] </sup></a>
9811  <em class="citetitle">United States</em> v. <em class="citetitle">Lopez</em>, 514 U.S. 549, 564 (1995).
9812 </p></div><div id="ftn.idp9877920" class="footnote"><p><a href="#idp9877920" class="para"><sup class="para">[185] </sup></a>
9813
9814 <em class="citetitle">United States</em> v. <em class="citetitle">Morrison</em>, 529 U.S. 598 (2000).
9815 </p></div><div id="ftn.idp9880160" class="footnote"><p><a href="#idp9880160" class="para"><sup class="para">[186] </sup></a>
9816
9817 If it is a principle about enumerated powers, then the principle
9818 carries from one enumerated power to another. The animating point in
9819 the context of the Commerce Clause was that the interpretation offered
9820 by the government would allow the government unending power to
9821 regulate commerce&#8212;the limitation to interstate commerce
9822 notwithstanding. The same point is true in the context of the
9823 Copyright Clause. Here, too, the government's interpretation would
9824 allow the government unending power to regulate copyrights&#8212;the
9825 limitation to <span class="quote">«<span class="quote">limited times</span>»</span> notwithstanding.
9826 </p></div><div id="ftn.idp9894576" class="footnote"><p><a href="#idp9894576" class="para"><sup class="para">[187] </sup></a>
9827
9828 Brief of the Nashville Songwriters Association, <em class="citetitle">Eldred</em>
9829 v. <em class="citetitle">Ashcroft</em>, 537 U.S.  186 (2003) (No. 01-618), n.10, available
9830 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #51</a>.
9831 </p></div><div id="ftn.idp9901120" class="footnote"><p><a href="#idp9901120" class="para"><sup class="para">[188] </sup></a>
9832  The figure of 2 percent is an extrapolation from the study by the
9833                 Congressional
9834 Research Service, in light of the estimated renewal ranges. See Brief
9835 of Petitioners, <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 7, available at
9836 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #52</a>.
9837 </p></div><div id="ftn.idp9919696" class="footnote"><p><a href="#idp9919696" class="para"><sup class="para">[189] </sup></a>
9838
9839 See David G. Savage, <span class="quote">«<span class="quote">High Court Scene of Showdown on Copyright Law,</span>»</span>
9840 <em class="citetitle">Los Angeles Times</em>, 6 October 2002; David Streitfeld, <span class="quote">«<span class="quote">Classic Movies,
9841 Songs, Books at Stake; Supreme Court Hears Arguments Today on Striking
9842 Down Copyright Extension,</span>»</span> <em class="citetitle">Orlando Sentinel Tribune</em>, 9 October 2002.
9843 </p></div><div id="ftn.idp9925008" class="footnote"><p><a href="#idp9925008" class="para"><sup class="para">[190] </sup></a>
9844
9845 Brief of Hal Roach Studios and Michael Agee as Amicus Curiae
9846 Supporting the Petitoners, <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 537
9847 U.S. 186 (2003) (No. 01- 618), 12. See also Brief of Amicus Curiae
9848 filed on behalf of Petitioners by the Internet Archive, <em class="citetitle">Eldred</em>
9849 v. <em class="citetitle">Ashcroft</em>, available at
9850 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #53</a>.
9851 </p></div><div id="ftn.idp9953920" class="footnote"><p><a href="#idp9953920" class="para"><sup class="para">[191] </sup></a>
9852
9853 Jason Schultz, <span class="quote">«<span class="quote">The Myth of the 1976 Copyright `Chaos' Theory,</span>»</span> 20
9854 December 2002, available at
9855 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #54</a>.
9856 </p></div><div id="ftn.idp10012640" class="footnote"><p><a href="#idp10012640" class="para"><sup class="para">[192] </sup></a>
9857
9858 Brief of Amici Dr. Seuss Enterprise et al., <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 537
9859 U.S.  (2003) (No. 01-618), 19.
9860 </p></div><div id="ftn.idp10015456" class="footnote"><p><a href="#idp10015456" class="para"><sup class="para">[193] </sup></a>
9861
9862 Dinitia Smith, <span class="quote">«<span class="quote">Immortal Words, Immortal Royalties? Even Mickey
9863 Mouse Joins the Fray,</span>»</span> <em class="citetitle">New York Times</em>, 28 March 1998, B7.
9864 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="eldred-ii"></a>Chapter 14. Eldred II</h2></div></div></div><p>
9865 <span class="strong"><strong>The day</strong></span>
9866 <em class="citetitle">Eldred</em> was decided, fate would have it that I
9867 was to travel to Washington, D.C. (The day the rehearing petition in
9868 <em class="citetitle">Eldred</em> was denied&#8212;meaning the case was
9869 really finally over&#8212;fate would have it that I was giving a
9870 speech to technologists at Disney World.)  This was a particularly
9871 long flight to my least favorite city. The drive into the city from
9872 Dulles was delayed because of traffic, so I opened up my computer and
9873 wrote an op-ed piece.
9874 </p><a class="indexterm" name="idp10124144"></a><p>
9875 It was an act of contrition. During the whole of the flight from San
9876 Francisco to Washington, I had heard over and over again in my head
9877 the same advice from Don Ayer: You need to make them see why it is
9878 important. And alternating with that command was the question of
9879 Justice Kennedy: <span class="quote">«<span class="quote">For all these years the act has impeded progress in
9880 science and the useful arts. I just don't see any empirical evidence for
9881 that.</span>»</span> And so, having failed in the argument of constitutional principle,
9882 finally, I turned to an argument of politics.
9883 </p><p>
9884 <em class="citetitle">The New York Times</em> published the piece. In it, I proposed a simple
9885 fix: Fifty years after a work has been published, the copyright owner
9886
9887 would be required to register the work and pay a small fee. If he paid
9888 the fee, he got the benefit of the full term of copyright. If he did not,
9889 the work passed into the public domain.
9890 </p><p>
9891 We called this the Eldred Act, but that was just to give it a name.
9892 Eric Eldred was kind enough to let his name be used once again, but as
9893 he said early on, it won't get passed unless it has another name.
9894 </p><p>
9895 Or another two names. For depending upon your perspective, this
9896 is either the <span class="quote">«<span class="quote">Public Domain Enhancement Act</span>»</span> or the <span class="quote">«<span class="quote">Copyright
9897 Term Deregulation Act.</span>»</span> Either way, the essence of the idea is clear
9898 and obvious: Remove copyright where it is doing nothing except
9899 blocking access and the spread of knowledge. Leave it for as long as
9900 Congress allows for those works where its worth is at least $1. But for
9901 everything else, let the content go.
9902 </p><a class="indexterm" name="idp10129952"></a><p>
9903 The reaction to this idea was amazingly strong. Steve Forbes endorsed
9904 it in an editorial. I received an avalanche of e-mail and letters
9905 expressing support. When you focus the issue on lost creativity,
9906 people can see the copyright system makes no sense. As a good
9907 Republican might say, here government regulation is simply getting in
9908 the way of innovation and creativity. And as a good Democrat might
9909 say, here the government is blocking access and the spread of
9910 knowledge for no good reason. Indeed, there is no real difference
9911 between Democrats and Republicans on this issue. Anyone can recognize
9912 the stupid harm of the present system.
9913 </p><p>
9914 Indeed, many recognized the obvious benefit of the registration
9915 requirement.  For one of the hardest things about the current system
9916 for people who want to license content is that there is no obvious
9917 place to look for the current copyright owners. Since registration is
9918 not required, since marking content is not required, since no
9919 formality at all is required, it is often impossibly hard to locate
9920 copyright owners to ask permission to use or license their work. This
9921 system would lower these costs, by establishing at least one registry
9922 where copyright owners could be identified.
9923 </p><a class="indexterm" name="idp10132800"></a><a class="indexterm" name="idp10133616"></a><p>
9924
9925 As I described in chapter <a class="xref" href="#property-i" title="Chapter 10. «Property»">10</a>, formalities in copyright law were
9926 removed in 1976, when Congress followed the Europeans by abandoning
9927 any formal requirement before a copyright is granted.<a href="#ftn.idp10136176" class="footnote" name="idp10136176"><sup class="footnote">[194]</sup></a>
9928 The Europeans are said to view copyright as a <span class="quote">«<span class="quote">natural right.</span>»</span> Natural
9929 rights don't need forms to exist. Traditions, like the Anglo-American
9930 tradition that required copyright owners to follow form if their
9931 rights were to be protected, did not, the Europeans thought, properly
9932 respect the dignity of the author. My right as a creator turns on my
9933 creativity, not upon the special favor of the government.
9934 </p><p>
9935 That's great rhetoric. It sounds wonderfully romantic. But it is
9936 absurd copyright policy. It is absurd especially for authors, because
9937 a world without formalities harms the creator. The ability to spread
9938 <span class="quote">«<span class="quote">Walt Disney creativity</span>»</span> is destroyed when there is no simple way to
9939 know what's protected and what's not.
9940 </p><a class="indexterm" name="idp10142304"></a><p>
9941 The fight against formalities achieved its first real victory in
9942 Berlin in 1908. International copyright lawyers amended the Berne
9943 Convention in 1908, to require copyright terms of life plus fifty
9944 years, as well as the abolition of copyright formalities. The
9945 formalities were hated because the stories of inadvertent loss were
9946 increasingly common. It was as if a Charles Dickens character ran all
9947 copyright offices, and the failure to dot an <em class="citetitle">i</em> or cross a
9948 <em class="citetitle">t</em> resulted in the loss of widows' only income.
9949 </p><p>
9950 These complaints were real and sensible. And the strictness of the
9951 formalities, especially in the United States, was absurd. The law
9952 should always have ways of forgiving innocent mistakes. There is no
9953 reason copyright law couldn't, as well. Rather than abandoning
9954 formalities totally, the response in Berlin should have been to
9955 embrace a more equitable system of registration.
9956 </p><p>
9957 Even that would have been resisted, however, because registration
9958 in the nineteenth and twentieth centuries was still expensive. It was
9959 also a hassle. The abolishment of formalities promised not only to save
9960 the starving widows, but also to lighten an unnecessary regulatory
9961                 burden
9962 imposed upon creators.
9963 </p><p>
9964 In addition to the practical complaint of authors in 1908, there was
9965 a moral claim as well. There was no reason that creative property
9966
9967
9968 should be a second-class form of property. If a carpenter builds a
9969 table, his rights over the table don't depend upon filing a form with
9970 the government.  He has a property right over the table <span class="quote">«<span class="quote">naturally,</span>»</span>
9971 and he can assert that right against anyone who would steal the table,
9972 whether or not he has informed the government of his ownership of the
9973 table.
9974 </p><p>
9975 This argument is correct, but its implications are misleading. For the
9976 argument in favor of formalities does not depend upon creative
9977 property being second-class property. The argument in favor of
9978 formalities turns upon the special problems that creative property
9979 presents.  The law of formalities responds to the special physics of
9980 creative property, to assure that it can be efficiently and fairly
9981 spread.
9982 </p><p>
9983 No one thinks, for example, that land is second-class property just
9984 because you have to register a deed with a court if your sale of land
9985 is to be effective. And few would think a car is second-class property
9986 just because you must register the car with the state and tag it with
9987 a license.  In both of those cases, everyone sees that there is an
9988 important reason to secure registration&#8212;both because it makes
9989 the markets more efficient and because it better secures the rights of
9990 the owner. Without a registration system for land, landowners would
9991 perpetually have to guard their property. With registration, they can
9992 simply point the police to a deed. Without a registration system for
9993 cars, auto theft would be much easier. With a registration system, the
9994 thief has a high burden to sell a stolen car. A slight burden is
9995 placed on the property owner, but those burdens produce a much better
9996 system of protection for property generally.
9997 </p><p>
9998 It is similarly special physics that makes formalities important in
9999 copyright law. Unlike a carpenter's table, there's nothing in nature that
10000 makes it relatively obvious who might own a particular bit of creative
10001 property. A recording of Lyle Lovett's latest album can exist in a billion
10002 places without anything necessarily linking it back to a particular
10003 owner. And like a car, there's no way to buy and sell creative property
10004 with confidence unless there is some simple way to authenticate who is
10005 the author and what rights he has. Simple transactions are destroyed in
10006
10007
10008 a world without formalities. Complex, expensive,
10009 <span class="emphasis"><em>lawyer</em></span> transactions take their place.
10010 <a class="indexterm" name="idp10151824"></a>
10011 </p><p>
10012 This was the understanding of the problem with the Sonny Bono
10013 Act that we tried to demonstrate to the Court. This was the part it
10014 didn't <span class="quote">«<span class="quote">get.</span>»</span> Because we live in a system without formalities, there is no
10015 way easily to build upon or use culture from our past. If copyright
10016 terms were, as Justice Story said they would be, <span class="quote">«<span class="quote">short,</span>»</span> then this
10017 wouldn't matter much. For fourteen years, under the framers' system, a
10018 work would be presumptively controlled. After fourteen years, it would
10019 be presumptively uncontrolled.
10020 </p><p>
10021 But now that copyrights can be just about a century long, the
10022 inability to know what is protected and what is not protected becomes
10023 a huge and obvious burden on the creative process. If the only way a
10024 library can offer an Internet exhibit about the New Deal is to hire a
10025 lawyer to clear the rights to every image and sound, then the
10026 copyright system is burdening creativity in a way that has never been
10027 seen before <span class="emphasis"><em>because there are no formalities</em></span>.
10028 </p><p>
10029 The Eldred Act was designed to respond to exactly this problem. If
10030 it is worth $1 to you, then register your work and you can get the
10031 longer term. Others will know how to contact you and, therefore, how
10032 to get your permission if they want to use your work. And you will get
10033 the benefit of an extended copyright term.
10034 </p><p>
10035 If it isn't worth it to you to register to get the benefit of an extended
10036 term, then it shouldn't be worth it for the government to defend your
10037 monopoly over that work either. The work should pass into the public
10038 domain where anyone can copy it, or build archives with it, or create a
10039 movie based on it. It should become free if it is not worth $1 to you.
10040 </p><p>
10041 Some worry about the burden on authors. Won't the burden of
10042 registering the work mean that the $1 is really misleading? Isn't the
10043 hassle worth more than $1? Isn't that the real problem with
10044 registration?
10045 </p><p>
10046 It is. The hassle is terrible. The system that exists now is awful. I
10047 completely agree that the Copyright Office has done a terrible job (no
10048 doubt because they are terribly funded) in enabling simple and cheap
10049
10050
10051 registrations. Any real solution to the problem of formalities must
10052 address the real problem of <span class="emphasis"><em>governments</em></span> standing
10053 at the core of any system of formalities. In this book, I offer such a
10054 solution. That solution essentially remakes the Copyright Office. For
10055 now, assume it was Amazon that ran the registration system. Assume it
10056 was one-click registration.  The Eldred Act would propose a simple,
10057 one-click registration fifty years after a work was published. Based
10058 upon historical data, that system would move up to 98 percent of
10059 commercial work, commercial work that no longer had a commercial life,
10060 into the public domain within fifty years. What do you think?
10061 </p><a class="indexterm" name="idp10159872"></a><p>
10062 <span class="strong"><strong>When Steve Forbes</strong></span> endorsed the
10063 idea, some in Washington began to pay attention. Many people contacted
10064 me pointing to representatives who might be willing to introduce the
10065 Eldred Act. And I had a few who directly suggested that they might be
10066 willing to take the first step.
10067 </p><a class="indexterm" name="idp10162032"></a><p>
10068 One representative, Zoe Lofgren of California, went so far as to get
10069 the bill drafted. The draft solved any problem with international
10070 law. It imposed the simplest requirement upon copyright owners
10071 possible. In May 2003, it looked as if the bill would be
10072 introduced. On May 16, I posted on the Eldred Act blog, <span class="quote">«<span class="quote">we are
10073 close.</span>»</span> There was a general reaction in the blog community that
10074 something good might happen here.
10075 </p><p>
10076 But at this stage, the lobbyists began to intervene. Jack Valenti and
10077 the MPAA general counsel came to the congresswoman's office to give
10078 the view of the MPAA. Aided by his lawyer, as Valenti told me, Valenti
10079 informed the congresswoman that the MPAA would oppose the Eldred
10080 Act. The reasons are embarrassingly thin. More importantly, their
10081 thinness shows something clear about what this debate is really about.
10082 </p><p>
10083 The MPAA argued first that Congress had <span class="quote">«<span class="quote">firmly rejected the central
10084 concept in the proposed bill</span>»</span>&#8212;that copyrights be renewed. That
10085 was true, but irrelevant, as Congress's <span class="quote">«<span class="quote">firm rejection</span>»</span> had occurred
10086
10087 long before the Internet made subsequent uses much more likely.
10088 Second, they argued that the proposal would harm poor copyright
10089 owners&#8212;apparently those who could not afford the $1 fee. Third,
10090 they argued that Congress had determined that extending a copyright
10091 term would encourage restoration work. Maybe in the case of the small
10092 percentage of work covered by copyright law that is still commercially
10093 valuable, but again this was irrelevant, as the proposal would not cut
10094 off the extended term unless the $1 fee was not paid. Fourth, the MPAA
10095 argued that the bill would impose <span class="quote">«<span class="quote">enormous</span>»</span> costs, since a
10096 registration system is not free. True enough, but those costs are
10097 certainly less than the costs of clearing the rights for a copyright
10098 whose owner is not known. Fifth, they worried about the risks if the
10099 copyright to a story underlying a film were to pass into the public
10100 domain. But what risk is that? If it is in the public domain, then the
10101 film is a valid derivative use.
10102 </p><p>
10103 Finally, the MPAA argued that existing law enabled copyright owners to
10104 do this if they wanted. But the whole point is that there are
10105 thousands of copyright owners who don't even know they have a
10106 copyright to give. Whether they are free to give away their copyright
10107 or not&#8212;a controversial claim in any case&#8212;unless they know
10108 about a copyright, they're not likely to.
10109 </p><p>
10110 <span class="strong"><strong>At the beginning</strong></span> of this book, I
10111 told two stories about the law reacting to changes in technology. In
10112 the one, common sense prevailed.  In the other, common sense was
10113 delayed. The difference between the two stories was the power of the
10114 opposition&#8212;the power of the side that fought to defend the
10115 status quo. In both cases, a new technology threatened old
10116 interests. But in only one case did those interest's have the power to
10117 protect themselves against this new competitive threat.
10118 </p><p>
10119 I used these two cases as a way to frame the war that this book has
10120 been about. For here, too, a new technology is forcing the law to react.
10121 And here, too, we should ask, is the law following or resisting common
10122 sense? If common sense supports the law, what explains this common
10123 sense?
10124 </p><p>
10125
10126
10127 When the issue is piracy, it is right for the law to back the
10128 copyright owners. The commercial piracy that I described is wrong and
10129 harmful, and the law should work to eliminate it. When the issue is
10130 p2p sharing, it is easy to understand why the law backs the owners
10131 still: Much of this sharing is wrong, even if much is harmless. When
10132 the issue is copyright terms for the Mickey Mouses of the world, it is
10133 possible still to understand why the law favors Hollywood: Most people
10134 don't recognize the reasons for limiting copyright terms; it is thus
10135 still possible to see good faith within the resistance.
10136 </p><a class="indexterm" name="idp10172496"></a><p>
10137 But when the copyright owners oppose a proposal such as the Eldred
10138 Act, then, finally, there is an example that lays bare the naked
10139 selfinterest driving this war. This act would free an extraordinary
10140 range of content that is otherwise unused. It wouldn't interfere with
10141 any copyright owner's desire to exercise continued control over his
10142 content. It would simply liberate what Kevin Kelly calls the <span class="quote">«<span class="quote">Dark
10143 Content</span>»</span> that fills archives around the world. So when the warriors
10144 oppose a change like this, we should ask one simple question:
10145 </p><p>
10146 What does this industry really want?
10147 </p><p>
10148 With very little effort, the warriors could protect their content. So
10149 the effort to block something like the Eldred Act is not really about
10150 protecting <span class="emphasis"><em>their</em></span> content. The effort to block the
10151 Eldred Act is an effort to assure that nothing more passes into the
10152 public domain. It is another step to assure that the public domain
10153 will never compete, that there will be no use of content that is not
10154 commercially controlled, and that there will be no commercial use of
10155 content that doesn't require <span class="emphasis"><em>their</em></span> permission
10156 first.
10157 </p><p>
10158 The opposition to the Eldred Act reveals how extreme the other side
10159 is. The most powerful and sexy and well loved of lobbies really has as
10160 its aim not the protection of <span class="quote">«<span class="quote">property</span>»</span> but the rejection of a
10161 tradition.  Their aim is not simply to protect what is
10162 theirs. <span class="emphasis"><em>Their aim is to assure that all there is is what is
10163 theirs</em></span>.
10164 </p><p>
10165 It is not hard to understand why the warriors take this view. It is not
10166 hard to see why it would benefit them if the competition of the public
10167
10168
10169 domain tied to the Internet could somehow be quashed. Just as RCA
10170 feared the competition of FM, they fear the competition of a public
10171 domain connected to a public that now has the means to create with it
10172 and to share its own creation.
10173 </p><a class="indexterm" name="idp10179488"></a><a class="indexterm" name="idp10180272"></a><p>
10174 What is hard to understand is why the public takes this view. It is
10175 as if the law made airplanes trespassers. The MPAA stands with the
10176 Causbys and demands that their remote and useless property rights be
10177 respected, so that these remote and forgotten copyright holders might
10178 block the progress of others.
10179 </p><p>
10180 All this seems to follow easily from this untroubled acceptance of the
10181 <span class="quote">«<span class="quote">property</span>»</span> in intellectual property. Common sense supports it, and so
10182 long as it does, the assaults will rain down upon the technologies of
10183 the Internet. The consequence will be an increasing <span class="quote">«<span class="quote">permission
10184 society.</span>»</span>  The past can be cultivated only if you can identify the
10185 owner and gain permission to build upon his work. The future will be
10186 controlled by this dead (and often unfindable) hand of the past.
10187 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp10136176" class="footnote"><p><a href="#idp10136176" class="para"><sup class="para">[194] </sup></a>
10188
10189 <a class="indexterm" name="idp10136880"></a>
10190 Until the 1908 Berlin Act of the Berne Convention, national copyright
10191 legislation sometimes made protection depend upon compliance with
10192 formalities such as registration, deposit, and affixation of notice of
10193 the author's claim of copyright. However, starting with the 1908 act,
10194 every text of the Convention has provided that <span class="quote">«<span class="quote">the enjoyment and the
10195 exercise</span>»</span> of rights guaranteed by the Convention <span class="quote">«<span class="quote">shall not be subject
10196 to any formality.</span>»</span>  The prohibition against formalities is presently
10197 embodied in Article 5(2) of the Paris Text of the Berne
10198 Convention. Many countries continue to impose some form of deposit or
10199 registration requirement, albeit not as a condition of
10200 copyright. French law, for example, requires the deposit of copies of
10201 works in national repositories, principally the National Museum.
10202 Copies of books published in the United Kingdom must be deposited in
10203 the British Library. The German Copyright Act provides for a Registrar
10204 of Authors where the author's true name can be filed in the case of
10205 anonymous or pseudonymous works. Paul Goldstein, <em class="citetitle">International
10206 Intellectual Property Law, Cases and Materials</em> (New York: Foundation
10207 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 15. 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>
10208 <span class="strong"><strong>There are more</strong></span> than 35 million
10209 people with the AIDS virus worldwide. Twenty-five million of them live
10210 in sub-Saharan Africa.  Seventeen million have already died. Seventeen
10211 million Africans is proportional percentage-wise to seven million
10212 Americans. More importantly, it is seventeen million Africans.
10213 </p><p>
10214 There is no cure for AIDS, but there are drugs to slow its
10215 progression.  These antiretroviral therapies are still experimental,
10216 but they have already had a dramatic effect. In the United States,
10217 AIDS patients who regularly take a cocktail of these drugs increase
10218 their life expectancy by ten to twenty years. For some, the drugs make
10219 the disease almost invisible.
10220 </p><p>
10221 These drugs are expensive. When they were first introduced in the
10222 United States, they cost between $10,000 and $15,000 per person per
10223 year. Today, some cost $25,000 per year. At these prices, of course, no
10224 African nation can afford the drugs for the vast majority of its
10225                 population:
10226 $15,000 is thirty times the per capita gross national product of
10227 Zimbabwe. At these prices, the drugs are totally unavailable.<a href="#ftn.idp10198208" class="footnote" name="idp10198208"><sup class="footnote">[195]</sup></a>
10228 </p><a class="indexterm" name="idxpatentsonpharmaceuticals"></a><a class="indexterm" name="idxpharmaceuticalpatents"></a><p>
10229
10230 These prices are not high because the ingredients of the drugs are
10231 expensive. These prices are high because the drugs are protected by
10232 patents. The drug companies that produced these life-saving mixes
10233 enjoy at least a twenty-year monopoly for their inventions. They use
10234 that monopoly power to extract the most they can from the market. That
10235 power is in turn used to keep the prices high.
10236 </p><p>
10237 There are many who are skeptical of patents, especially drug
10238 patents. I am not. Indeed, of all the areas of research that might be
10239 supported by patents, drug research is, in my view, the clearest case
10240 where patents are needed. The patent gives the drug company some
10241 assurance that if it is successful in inventing a new drug to treat a
10242 disease, it will be able to earn back its investment and more. This is
10243 socially an extremely valuable incentive. I am the last person who
10244 would argue that the law should abolish it, at least without other
10245 changes.
10246 </p><p>
10247 But it is one thing to support patents, even drug patents. It is
10248 another thing to determine how best to deal with a crisis. And as
10249 African leaders began to recognize the devastation that AIDS was
10250 bringing, they started looking for ways to import HIV treatments at
10251 costs significantly below the market price.
10252 </p><a class="indexterm" name="idxinternationallaw2"></a><a class="indexterm" name="idxparallelimportation"></a><a class="indexterm" name="idxsouthafricarepublicofpharmaceuticalimportsby"></a><p>
10253 In 1997, South Africa tried one tack. It passed a law to allow the
10254 importation of patented medicines that had been produced or sold in
10255 another nation's market with the consent of the patent owner. For
10256 example, if the drug was sold in India, it could be imported into
10257 Africa from India. This is called <span class="quote">«<span class="quote">parallel importation,</span>»</span> and it is
10258 generally permitted under international trade law and is specifically
10259 permitted within the European Union.<a href="#ftn.idp10212768" class="footnote" name="idp10212768"><sup class="footnote">[196]</sup></a>
10260 </p><a class="indexterm" name="idp10216048"></a><p>
10261 However, the United States government opposed the bill. Indeed, more
10262 than opposed. As the International Intellectual Property Association
10263 characterized it, <span class="quote">«<span class="quote">The U.S. government pressured South Africa &#8230;
10264 not to permit compulsory licensing or parallel
10265 imports.</span>»</span><a href="#ftn.idp9823664" class="footnote" name="idp9823664"><sup class="footnote">[197]</sup></a>
10266 Through the Office of the United States Trade Representative, the
10267 government asked South Africa to change the law&#8212;and to add
10268 pressure to that request, in 1998, the USTR listed South Africa for
10269 possible trade sanctions.
10270
10271 That same year, more than forty pharmaceutical companies began
10272 proceedings in the South African courts to challenge the government's
10273 actions. The United States was then joined by other governments from
10274 the EU. Their claim, and the claim of the pharmaceutical companies,
10275 was that South Africa was violating its obligations under
10276 international law by discriminating against a particular kind of
10277 patent&#8212; pharmaceutical patents. The demand of these governments,
10278 with the United States in the lead, was that South Africa respect
10279 these patents as it respects any other patent, regardless of any
10280 effect on the treatment of AIDS within South Africa.<a href="#ftn.idp10219904" class="footnote" name="idp10219904"><sup class="footnote">[198]</sup></a>
10281 </p><a class="indexterm" name="idp10223024"></a><p>
10282 We should place the intervention by the United States in context.  No
10283 doubt patents are not the most important reason that Africans don't
10284 have access to drugs. Poverty and the total absence of an effective
10285 health care infrastructure matter more. But whether patents are the
10286 most important reason or not, the price of drugs has an effect on
10287 their demand, and patents affect price. And so, whether massive or
10288 marginal, there was an effect from our government's intervention to
10289 stop the flow of medications into Africa.
10290 </p><p>
10291 By stopping the flow of HIV treatment into Africa, the United
10292 States government was not saving drugs for United States citizens.
10293 This is not like wheat (if they eat it, we can't); instead, the flow that the
10294 United States intervened to stop was, in effect, a flow of knowledge:
10295 information about how to take chemicals that exist within Africa, and
10296 turn those chemicals into drugs that would save 15 to 30 million lives.
10297 </p><p>
10298 Nor was the intervention by the United States going to protect the
10299 profits of United States drug companies&#8212;at least, not substantially. It
10300 was not as if these countries were in the position to buy the drugs for
10301 the prices the drug companies were charging. Again, the Africans are
10302 wildly too poor to afford these drugs at the offered prices. Stopping the
10303 parallel import of these drugs would not substantially increase the sales
10304 by U.S. companies.
10305 </p><p>
10306 Instead, the argument in favor of restricting this flow of
10307 information, which was needed to save the lives of millions, was an
10308 argument
10309
10310 about the sanctity of property.<a href="#ftn.idp10227664" class="footnote" name="idp10227664"><sup class="footnote">[199]</sup></a>
10311 It was because <span class="quote">«<span class="quote">intellectual property</span>»</span> would be violated that these
10312 drugs should not flow into Africa. It was a principle about the
10313 importance of <span class="quote">«<span class="quote">intellectual property</span>»</span> that led these government actors
10314 to intervene against the South African response to AIDS.
10315 </p><a class="indexterm" name="idp10234976"></a><p>
10316 Now just step back for a moment. There will be a time thirty years
10317 from now when our children look back at us and ask, how could we have
10318 let this happen? How could we allow a policy to be pursued whose
10319 direct cost would be to speed the death of 15 to 30 million Africans,
10320 and whose only real benefit would be to uphold the <span class="quote">«<span class="quote">sanctity</span>»</span> of an
10321 idea?  What possible justification could there ever be for a policy
10322 that results in so many deaths? What exactly is the insanity that
10323 would allow so many to die for such an abstraction?
10324 </p><a class="indexterm" name="idxcorporationsinpharmaceuticalindustry"></a><p>
10325 Some blame the drug companies. I don't. They are corporations.
10326 Their managers are ordered by law to make money for the corporation.
10327 They push a certain patent policy not because of ideals, but because it is
10328 the policy that makes them the most money. And it only makes them the
10329 most money because of a certain corruption within our political system&#8212;
10330 a corruption the drug companies are certainly not responsible for.
10331 </p><p>
10332 The corruption is our own politicians' failure of integrity. For the
10333 drug companies would love&#8212;they say, and I believe them&#8212;to
10334 sell their drugs as cheaply as they can to countries in Africa and
10335 elsewhere.  There are issues they'd have to resolve to make sure the
10336 drugs didn't get back into the United States, but those are mere
10337 problems of technology.  They could be overcome.
10338 </p><a class="indexterm" name="idxintellectualpropertyrightsofdrugpatents"></a><p>
10339 A different problem, however, could not be overcome. This is the
10340 fear of the grandstanding politician who would call the presidents of
10341 the drug companies before a Senate or House hearing, and ask, <span class="quote">«<span class="quote">How
10342 is it you can sell this HIV drug in Africa for only $1 a pill, but the same
10343 drug would cost an American $1,500?</span>»</span> Because there is no <span class="quote">«<span class="quote">sound
10344 bite</span>»</span> answer to that question, its effect would be to induce regulation
10345 of prices in America. The drug companies thus avoid this spiral by
10346 avoiding the first step. They reinforce the idea that property should be
10347
10348 sacred. They adopt a rational strategy in an irrational context, with the
10349 unintended consequence that perhaps millions die. And that rational
10350 strategy thus becomes framed in terms of this ideal&#8212;the sanctity of an
10351 idea called <span class="quote">«<span class="quote">intellectual property.</span>»</span>
10352 </p><a class="indexterm" name="idp10246000"></a><a class="indexterm" name="idp10247248"></a><a class="indexterm" name="idp10248448"></a><a class="indexterm" name="idp10249760"></a><a class="indexterm" name="idp10251200"></a><a class="indexterm" name="idp10252448"></a><a class="indexterm" name="idp10253696"></a><p>
10353 So when the common sense of your child confronts you, what will
10354 you say? When the common sense of a generation finally revolts
10355 against what we have done, how will we justify what we have done?
10356 What is the argument?
10357 </p><p>
10358 A sensible patent policy could endorse and strongly support the patent
10359 system without having to reach everyone everywhere in exactly the same
10360 way. Just as a sensible copyright policy could endorse and strongly
10361 support a copyright system without having to regulate the spread of
10362 culture perfectly and forever, a sensible patent policy could endorse
10363 and strongly support a patent system without having to block the
10364 spread of drugs to a country not rich enough to afford market prices
10365 in any case. A sensible policy, in other words, could be a balanced
10366 policy. For most of our history, both copyright and patent policies
10367 were balanced in just this sense.
10368 </p><a class="indexterm" name="idp10256768"></a><a class="indexterm" name="idp10258048"></a><a class="indexterm" name="idp10259392"></a><p>
10369 But we as a culture have lost this sense of balance. We have lost the
10370 critical eye that helps us see the difference between truth and
10371 extremism.  A certain property fundamentalism, having no connection to
10372 our tradition, now reigns in this culture&#8212;bizarrely, and with
10373 consequences more grave to the spread of ideas and culture than almost
10374 any other single policy decision that we as a democracy will make.
10375 </p><a class="indexterm" name="idp10260912"></a><p>
10376 <span class="strong"><strong>A simple idea</strong></span> blinds us, and under
10377 the cover of darkness, much happens that most of us would reject if
10378 any of us looked. So uncritically do we accept the idea of property in
10379 ideas that we don't even notice how monstrous it is to deny ideas to a
10380 people who are dying without them. So uncritically do we accept the
10381 idea of property in culture that we don't even question when the
10382 control of that property removes our
10383
10384 ability, as a people, to develop our culture democratically. Blindness
10385 becomes our common sense. And the challenge for anyone who would
10386 reclaim the right to cultivate our culture is to find a way to make
10387 this common sense open its eyes.
10388 </p><p>
10389 So  far, common sense sleeps. There is no revolt. Common sense
10390 does not yet see what there could be to revolt about. The extremism
10391 that now dominates this debate fits with ideas that seem natural, and
10392 that fit is reinforced by the RCAs of our day. They wage a frantic war
10393 to fight <span class="quote">«<span class="quote">piracy,</span>»</span> and devastate a culture for creativity. They defend
10394 the idea of <span class="quote">«<span class="quote">creative property,</span>»</span> while transforming real creators into
10395 modern-day sharecroppers. They are insulted by the idea that rights
10396 should be balanced, even though each of the major players in this
10397 content war was itself a beneficiary of a more balanced ideal. The
10398 hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even
10399 noticed. Powerful lobbies, complex issues, and MTV attention spans
10400 produce the <span class="quote">«<span class="quote">perfect storm</span>»</span> for free culture.
10401 </p><a class="indexterm" name="idp10267408"></a><a class="indexterm" name="idp10268224"></a><a class="indexterm" name="idxintellectualpropertyrightsinternationalorganizationonissuesof"></a><a class="indexterm" name="idp10271040"></a><a class="indexterm" name="idp10272144"></a><a class="indexterm" name="idp10272928"></a><a class="indexterm" name="idp10273760"></a><a class="indexterm" name="idp10274592"></a><a class="indexterm" name="idp10275696"></a><a class="indexterm" name="idp10276528"></a><a class="indexterm" name="idxworldintellectualpropertyorganizationwipo"></a><a class="indexterm" name="idp10279008"></a><a class="indexterm" name="idp10279824"></a><a class="indexterm" name="idp10280656"></a><a class="indexterm" name="idxbiomedicalresearch"></a><p>
10402 <span class="strong"><strong>In August 2003</strong></span>, a fight broke out
10403 in the United States about a decision by the World Intellectual
10404 Property Organization to cancel a meeting.<a href="#ftn.idp10284128" class="footnote" name="idp10284128"><sup class="footnote">[200]</sup></a>
10405 At the request of a wide range of interests, WIPO had decided to hold
10406 a meeting to discuss <span class="quote">«<span class="quote">open and collaborative projects to create public
10407 goods.</span>»</span> These are projects that have been successful in producing
10408 public goods without relying exclusively upon a proprietary use of
10409 intellectual property. Examples include the Internet and the World
10410 Wide Web, both of which were developed on the basis of protocols in
10411 the public domain. It included an emerging trend to support open
10412 academic journals, including the Public Library of Science project
10413 that I describe in chapter
10414 <a class="xref" href="#c-afterword" title="Chapter 16. AFTERWORD">16</a>.  It
10415 included a project to develop single nucleotide polymorphisms (SNPs),
10416 which are thought to have great significance in biomedical
10417 research. (That nonprofit project comprised a consortium of the
10418 Wellcome Trust and pharmaceutical and technological companies,
10419 including Amersham Biosciences, AstraZeneca,
10420
10421 Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche,
10422 Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It
10423 included the Global Positioning System, which Ronald Reagan set free
10424 in the early 1980s. And it included <span class="quote">«<span class="quote">open source and free software.</span>»</span>
10425 </p><a class="indexterm" name="idp10293376"></a><p>
10426 The aim of the meeting was to consider this wide range of projects
10427 from one common perspective: that none of these projects relied upon
10428 intellectual property extremism. Instead, in all of them, intellectual
10429 property was balanced by agreements to keep access open or to impose
10430 limitations on the way in which proprietary claims might be used.
10431 </p><a class="indexterm" name="idxlessiglawrenceininternationaldebateonintellectualproperty"></a><p>
10432 From the perspective of this book, then, the conference was ideal.<a href="#ftn.idp10297712" class="footnote" name="idp10297712"><sup class="footnote">[201]</sup></a>
10433 The projects within its scope included both commercial and
10434 noncommercial work. They primarily involved science, but from many
10435 perspectives.  And WIPO was an ideal venue for this discussion, since
10436 WIPO is the preeminent international body dealing with intellectual
10437 property issues.
10438 </p><a class="indexterm" name="idxworldsummitontheinformationsocietywsis"></a><p>
10439 Indeed, I was once publicly scolded for not recognizing this fact
10440 about WIPO. In February 2003, I delivered a keynote address to a
10441 preparatory conference for the World Summit on the Information Society
10442 (WSIS). At a press conference before the address, I was asked what I
10443 would say. I responded that I would be talking a little about the
10444 importance of balance in intellectual property for the development of
10445 an information society. The moderator for the event then promptly
10446 interrupted to inform me and the assembled reporters that no question
10447 about intellectual property would be discussed by WSIS, since those
10448 questions were the exclusive domain of WIPO. In the talk that I had
10449 prepared, I had actually made the issue of intellectual property
10450 relatively minor. But after this astonishing statement, I made
10451 intellectual property the sole focus of my talk. There was no way to
10452 talk about an <span class="quote">«<span class="quote">Information Society</span>»</span> unless one also talked about the
10453 range of information and culture that would be free. My talk did not
10454 make my immoderate moderator very happy. And she was no doubt correct
10455 that the scope of intellectual property protections was ordinarily the
10456 stuff of
10457
10458 WIPO. But in my view, there couldn't be too much of a conversation
10459 about how much intellectual property is needed, since in my view, the
10460 very idea of balance in intellectual property had been lost.
10461 </p><p>
10462 So whether or not WSIS can discuss balance in intellectual property, I
10463 had thought it was taken for granted that WIPO could and should. And
10464 thus the meeting about <span class="quote">«<span class="quote">open and collaborative projects to create
10465 public goods</span>»</span> seemed perfectly appropriate within the WIPO agenda.
10466 </p><a class="indexterm" name="idp10304320"></a><a class="indexterm" name="idp10305776"></a><a class="indexterm" name="idp10307152"></a><a class="indexterm" name="idxfreesoftwareopensourcesoftwarefsoss"></a><a class="indexterm" name="idp10310144"></a><a class="indexterm" name="idxmicrosoftonfreesoftware"></a><p>
10467 But there is one project within that list that is highly
10468 controversial, at least among lobbyists. That project is <span class="quote">«<span class="quote">open source
10469 and free software.</span>»</span>  Microsoft in particular is wary of discussion of
10470 the subject. From its perspective, a conference to discuss open source
10471 and free software would be like a conference to discuss Apple's
10472 operating system. Both open source and free software compete with
10473 Microsoft's software. And internationally, many governments have begun
10474 to explore requirements that they use open source or free software,
10475 rather than <span class="quote">«<span class="quote">proprietary software,</span>»</span> for their own internal uses.
10476 </p><a class="indexterm" name="idp10314624"></a><a class="indexterm" name="idp10315728"></a><a class="indexterm" name="idp10316560"></a><a class="indexterm" name="idp10317376"></a><p>
10477 I don't mean to enter that debate here. It is important only to
10478 make clear that the distinction is not between commercial and
10479 noncommercial software. There are many important companies that depend
10480 fundamentally upon open source and free software, IBM being the most
10481 prominent. IBM is increasingly shifting its focus to the GNU/Linux
10482 operating system, the most famous bit of <span class="quote">«<span class="quote">free software</span>»</span>&#8212;and IBM
10483 is emphatically a commercial entity. Thus, to support <span class="quote">«<span class="quote">open source and
10484 free software</span>»</span> is not to oppose commercial entities. It is, instead,
10485 to support a mode of software development that is different from
10486 Microsoft's.<a href="#ftn.idp10319824" class="footnote" name="idp10319824"><sup class="footnote">[202]</sup></a>
10487 </p><a class="indexterm" name="idp10325552"></a><a class="indexterm" name="idp10327040"></a><a class="indexterm" name="idp10327872"></a><p>
10488 More important for our purposes, to support <span class="quote">«<span class="quote">open source and free
10489 software</span>»</span> is not to oppose copyright. <span class="quote">«<span class="quote">Open source and free software</span>»</span>
10490 is not software in the public domain. Instead, like Microsoft's
10491 software, the copyright owners of free and open source software insist
10492 quite strongly that the terms of their software license be respected
10493 by
10494
10495 adopters of free and open source software. The terms of that license
10496 are no doubt different from the terms of a proprietary software
10497 license.  Free software licensed under the General Public License
10498 (GPL), for example, requires that the source code for the software be
10499 made available by anyone who modifies and redistributes the
10500 software. But that requirement is effective only if copyright governs
10501 software. If copyright did not govern software, then free software
10502 could not impose the same kind of requirements on its adopters. It
10503 thus depends upon copyright law just as Microsoft does.
10504 </p><a class="indexterm" name="idxintellectualpropertyrightsinternationalorganizationonissuesof2"></a><a class="indexterm" name="idxworldintellectualpropertyorganizationwipo2"></a><a class="indexterm" name="idxkrimjonathan"></a><a class="indexterm" name="idp10336352"></a><p>
10505 It is therefore understandable that as a proprietary software
10506 developer, Microsoft would oppose this WIPO meeting, and
10507 understandable that it would use its lobbyists to get the United
10508 States government to oppose it, as well. And indeed, that is just what
10509 was reported to have happened. According to Jonathan Krim of the
10510 <em class="citetitle">Washington Post</em>, Microsoft's lobbyists succeeded in getting the United
10511 States government to veto the meeting.<a href="#ftn.idp10338576" class="footnote" name="idp10338576"><sup class="footnote">[203]</sup></a>
10512 And without U.S. backing, the meeting was canceled.
10513 </p><p>
10514 I don't blame Microsoft for doing what it can to advance its own
10515 interests, consistent with the law. And lobbying governments is
10516 plainly consistent with the law. There was nothing surprising about
10517 its lobbying here, and nothing terribly surprising about the most
10518 powerful software producer in the United States having succeeded in
10519 its lobbying efforts.
10520 </p><a class="indexterm" name="idp10341552"></a><a class="indexterm" name="idp10342880"></a><p>
10521 What was surprising was the United States government's reason for
10522 opposing the meeting. Again, as reported by Krim, Lois Boland, acting
10523 director of international relations for the U.S. Patent and Trademark
10524 Office, explained that <span class="quote">«<span class="quote">open-source software runs counter to the
10525 mission of WIPO, which is to promote intellectual-property rights.</span>»</span>
10526 She is quoted as saying, <span class="quote">«<span class="quote">To hold a meeting which has as its purpose
10527 to disclaim or waive such rights seems to us to be contrary to the
10528 goals of WIPO.</span>»</span>
10529 </p><a class="indexterm" name="idp10345360"></a><p>
10530 These statements are astonishing on a number of levels.
10531 </p><a class="indexterm" name="idp10347056"></a><p>
10532 First, they are just flat wrong. As I described, most open source and
10533 free software relies fundamentally upon the intellectual property
10534 right called <span class="quote">«<span class="quote">copyright</span>»</span>.  Without it, restrictions imposed by those
10535 licenses wouldn't work. Thus, to say it <span class="quote">«<span class="quote">runs counter</span>»</span> to the mission
10536 of promoting intellectual property rights reveals an extraordinary gap
10537 in understanding&#8212;the sort of mistake that is excusable in a
10538 first-year law student, but an embarrassment from a high government
10539 official dealing with intellectual property issues.
10540 </p><a class="indexterm" name="idp10350608"></a><a class="indexterm" name="idp10351312"></a><a class="indexterm" name="idp10352416"></a><a class="indexterm" name="idp10353232"></a><p>
10541 Second, who ever said that WIPO's exclusive aim was to <span class="quote">«<span class="quote">promote</span>»</span>
10542 intellectual property maximally? As I had been scolded at the
10543 preparatory conference of WSIS, WIPO is to consider not only how best
10544 to protect intellectual property, but also what the best balance of
10545 intellectual property is. As every economist and lawyer knows, the
10546 hard question in intellectual property law is to find that
10547 balance. But that there should be limits is, I had thought,
10548 uncontested. One wants to ask Ms. Boland, are generic drugs (drugs
10549 based on drugs whose patent has expired) contrary to the WIPO mission?
10550 Does the public domain weaken intellectual property? Would it have
10551 been better if the protocols of the Internet had been patented?
10552 </p><a class="indexterm" name="idp10355888"></a><p>
10553 Third, even if one believed that the purpose of WIPO was to maximize
10554 intellectual property rights, in our tradition, intellectual property
10555 rights are held by individuals and corporations. They get to decide
10556 what to do with those rights because, again, they are
10557 <span class="emphasis"><em>their</em></span> rights. If they want to <span class="quote">«<span class="quote">waive</span>»</span> or
10558 <span class="quote">«<span class="quote">disclaim</span>»</span> their rights, that is, within our tradition, totally
10559 appropriate. When Bill Gates gives away more than $20 billion to do
10560 good in the world, that is not inconsistent with the objectives of the
10561 property system. That is, on the contrary, just what a property system
10562 is supposed to be about: giving individuals the right to decide what
10563 to do with <span class="emphasis"><em>their</em></span> property.
10564 </p><a class="indexterm" name="idxboland"></a><p>
10565 When Ms. Boland says that there is something wrong with a meeting
10566 <span class="quote">«<span class="quote">which has as its purpose to disclaim or waive such rights,</span>»</span> she's
10567 saying that WIPO has an interest in interfering with the choices of
10568
10569 the individuals who own intellectual property rights. That somehow,
10570 WIPO's objective should be to stop an individual from <span class="quote">«<span class="quote">waiving</span>»</span> or
10571 <span class="quote">«<span class="quote">disclaiming</span>»</span> an intellectual property right. That the interest of
10572 WIPO is not just that intellectual property rights be maximized, but
10573 that they also should be exercised in the most extreme and restrictive
10574 way possible.
10575 </p><a class="indexterm" name="idxfeudalsystem"></a><a class="indexterm" name="idxpropertyrightsfeudalsystemof"></a><p>
10576 There is a history of just such a property system that is well known
10577 in the Anglo-American tradition. It is called <span class="quote">«<span class="quote">feudalism.</span>»</span> Under
10578 feudalism, not only was property held by a relatively small number of
10579 individuals and entities. And not only were the rights that ran with
10580 that property powerful and extensive. But the feudal system had a
10581 strong interest in assuring that property holders within that system
10582 not weaken feudalism by liberating people or property within their
10583 control to the free market. Feudalism depended upon maximum control
10584 and concentration. It fought any freedom that might interfere with
10585 that control.
10586 </p><a class="indexterm" name="idp10368448"></a><a class="indexterm" name="idp10369264"></a><p>
10587 As Peter Drahos and John Braithwaite relate, this is precisely the
10588 choice we are now making about intellectual property.<a href="#ftn.idp10370480" class="footnote" name="idp10370480"><sup class="footnote">[204]</sup></a>
10589 We will have an information society. That much is certain. Our only
10590 choice now is whether that information society will be
10591 <span class="emphasis"><em>free</em></span> or <span class="emphasis"><em>feudal</em></span>. The trend is
10592 toward the feudal.
10593 </p><a class="indexterm" name="idp10373760"></a><a class="indexterm" name="idp10375072"></a><p>
10594 When this battle broke, I blogged it. A spirited debate within the
10595 comment section ensued. Ms. Boland had a number of supporters who
10596 tried to show why her comments made sense. But there was one comment
10597 that was particularly depressing for me. An anonymous poster wrote,
10598 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idp10377328"></a><a class="indexterm" name="idp10378704"></a><p>
10599 George, you misunderstand Lessig: He's only talking about the world as
10600 it should be (<span class="quote">«<span class="quote">the goal of WIPO, and the goal of any government,
10601 should be to promote the right balance of intellectual property rights,
10602 not simply to promote intellectual property rights</span>»</span>), not as it is. If
10603 we were talking about the world as it is, then of course Boland didn't
10604 say anything wrong. But in the world
10605
10606 as Lessig would have it, then of course she did. Always pay attention
10607 to the distinction between Lessig's world and ours.
10608 </p></blockquote></div><p>
10609 I missed the irony the first time I read it. I read it quickly and
10610 thought the poster was supporting the idea that seeking balance was
10611 what our government should be doing. (Of course, my criticism of Ms.
10612 Boland was not about whether she was seeking balance or not; my
10613 criticism was that her comments betrayed a first-year law student's
10614 mistake. I have no illusion about the extremism of our government,
10615 whether Republican or Democrat. My only illusion apparently is about
10616 whether our government should speak the truth or not.)
10617 </p><a class="indexterm" name="idp10382800"></a><p>
10618 Obviously, however, the poster was not supporting that idea.  Instead,
10619 the poster was ridiculing the very idea that in the real world, the
10620 <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
10621 intellectual property. That was obviously silly to him. And it
10622 obviously betrayed, he believed, my own silly utopianism. <span class="quote">«<span class="quote">Typical for
10623 an academic,</span>»</span> the poster might well have continued.
10624 </p><p>
10625 I understand criticism of academic utopianism. I think utopianism is
10626 silly, too, and I'd be the first to poke fun at the absurdly
10627 unrealistic ideals of academics throughout history (and not just in
10628 our own country's history).
10629 </p><p>
10630 But when it has become silly to suppose that the role of our
10631 government should be to <span class="quote">«<span class="quote">seek balance,</span>»</span> then count me with the silly,
10632 for that means that this has become quite serious indeed. If it should
10633 be obvious to everyone that the government does not seek balance, that
10634 the government is simply the tool of the most powerful lobbyists, that
10635 the idea of holding the government to a different standard is absurd,
10636 that the idea of demanding of the government that it speak truth and
10637 not lies is just naïve, then who have we, the most powerful
10638 democracy in the world, become?
10639 </p><p>
10640 It might be crazy to expect a high government official to speak
10641 the truth. It might be crazy to believe that government policy will be
10642 something more than the handmaiden of the most powerful interests.
10643
10644 It might be crazy to argue that we should preserve a tradition that has
10645 been part of our tradition for most of our history&#8212;free culture.
10646 </p><p>
10647 If this is crazy, then let there be more crazies. Soon.
10648 </p><a class="indexterm" name="idp10389952"></a><a class="indexterm" name="idp10390624"></a><a class="indexterm" name="idp10391328"></a><p>
10649 <span class="strong"><strong>There are moments</strong></span> of hope in this
10650 struggle. And moments that surprise. When the FCC was considering
10651 relaxing ownership rules, which would thereby further increase the
10652 concentration in media ownership, an extraordinary bipartisan
10653 coalition formed to fight this change. For perhaps the first time in
10654 history, interests as diverse as the NRA, the ACLU, Moveon.org,
10655 William Safire, Ted Turner, and CodePink Women for Peace organized to
10656 oppose this change in FCC policy. An astonishing 700,000 letters were
10657 sent to the FCC, demanding more hearings and a different result.
10658 </p><p>
10659 This activism did not stop the FCC, but soon after, a broad coalition
10660 in the Senate voted to reverse the FCC decision. The hostile hearings
10661 leading up to that vote revealed just how powerful this movement had
10662 become. There was no substantial support for the FCC's decision, and
10663 there was broad and sustained support for fighting further
10664 concentration in the media.
10665 </p><p>
10666 But even this movement misses an important piece of the puzzle.
10667 Largeness as such is not bad. Freedom is not threatened just because
10668 some become very rich, or because there are only a handful of big
10669 players.  The poor quality of Big Macs or Quarter Pounders does not
10670 mean that you can't get a good hamburger from somewhere else.
10671 </p><p>
10672 The danger in media concentration comes not from the concentration,
10673 but instead from the feudalism that this concentration, tied to the
10674 change in copyright, produces. It is not just that there are a few
10675 powerful companies that control an ever expanding slice of the
10676 media. It is that this concentration can call upon an equally bloated
10677 range of rights&#8212;property rights of a historically extreme
10678 form&#8212;that makes their bigness bad.
10679 </p><p>
10680 It is therefore significant that so many would rally to demand
10681 competition and increased diversity. Still, if the rally is understood
10682 as being about bigness alone, it is not terribly surprising. We
10683 Americans have a long history of fighting <span class="quote">«<span class="quote">big,</span>»</span> wisely or not. That
10684 we could be motivated to fight <span class="quote">«<span class="quote">big</span>»</span> again is not something new.
10685 </p><p>
10686 It would be something new, and something very important, if an equal
10687 number could be rallied to fight the increasing extremism built within
10688 the idea of <span class="quote">«<span class="quote">intellectual property.</span>»</span> Not because balance is alien to
10689 our tradition; indeed, as I've argued, balance is our tradition. But
10690 because the muscle to think critically about the scope of anything
10691 called <span class="quote">«<span class="quote">property</span>»</span> is not well exercised within this tradition anymore.
10692 </p><p>
10693 If we were Achilles, this would be our heel. This would be the place
10694 of our tragedy.
10695 </p><a class="indexterm" name="idp10400336"></a><p>
10696 <span class="strong"><strong>As I write</strong></span> these final words, the
10697 news is filled with stories about the RIAA lawsuits against almost
10698 three hundred individuals.<a href="#ftn.idp10402240" class="footnote" name="idp10402240"><sup class="footnote">[205]</sup></a>
10699 Eminem has just been sued for <span class="quote">«<span class="quote">sampling</span>»</span> someone else's
10700 music.<a href="#ftn.idp10409504" class="footnote" name="idp10409504"><sup class="footnote">[206]</sup></a>
10701 The story about Bob Dylan <span class="quote">«<span class="quote">stealing</span>»</span> from a Japanese author has just
10702 finished making the rounds.<a href="#ftn.idp10412128" class="footnote" name="idp10412128"><sup class="footnote">[207]</sup></a>
10703 An insider from Hollywood&#8212;who insists he must remain
10704 anonymous&#8212;reports <span class="quote">«<span class="quote">an amazing conversation with these studio
10705 guys. They've got extraordinary [old] content that they'd love to use
10706 but can't because they can't begin to clear the rights. They've got
10707 scores of kids who could do amazing things with the content, but it
10708 would take scores of lawyers to clean it first.</span>»</span> Congressmen are
10709 talking about deputizing computer viruses to bring down computers
10710 thought to violate the law. Universities are threatening expulsion for
10711 kids who use a computer to share content.
10712 </p><a class="indexterm" name="idp10415744"></a><a class="indexterm" name="idp10416528"></a><a class="indexterm" name="idp10417344"></a><a class="indexterm" name="idp10418128"></a><a class="indexterm" name="idp10418944"></a><a class="indexterm" name="idp10419760"></a><a class="indexterm" name="idp10420576"></a><p>
10713 Yet on the other side of the Atlantic, the BBC has just announced
10714 that it will build a <span class="quote">«<span class="quote">Creative Archive,</span>»</span> from which British citizens can
10715 download BBC content, and rip, mix, and burn it.<a href="#ftn.idp10422480" class="footnote" name="idp10422480"><sup class="footnote">[208]</sup></a>
10716 And in Brazil, the culture minister, Gilberto Gil, himself a folk hero
10717 of Brazilian music, has joined with Creative Commons to release
10718 content and free licenses in that Latin American
10719 country.<a href="#ftn.idp10424736" class="footnote" name="idp10424736"><sup class="footnote">[209]</sup></a>
10720
10721 I've told a dark story. The truth is more mixed. A technology has
10722 given us a new freedom. Slowly, some begin to understand that this
10723 freedom need not mean anarchy. We can carry a free culture into the
10724 twenty-first century, without artists losing and without the potential of
10725 digital technology being destroyed. It will take some thought, and
10726 more importantly, it will take some will to transform the RCAs of our
10727 day into the Causbys.
10728 </p><p>
10729 Common sense must revolt. It must act to free culture. Soon, if this
10730 potential is ever to be realized.
10731
10732
10733
10734 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp10198208" class="footnote"><p><a href="#idp10198208" class="para"><sup class="para">[195] </sup></a>
10735  Commission on Intellectual Property Rights, <span class="quote">«<span class="quote">Final Report: Integrating
10736 Intellectual Property Rights and Development Policy</span>»</span> (London, 2002),
10737 available at
10738 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #55</a>. According to a World Health Organization press
10739                 release
10740 issued 9 July 2002, only 230,000 of the 6 million who need drugs in
10741 the developing world receive them&#8212;and half of them are in Brazil.
10742 </p></div><div id="ftn.idp10212768" class="footnote"><p><a href="#idp10212768" class="para"><sup class="para">[196] </sup></a>
10743
10744 See Peter Drahos with John Braithwaite, <em class="citetitle">Information Feudalism: Who
10745 Owns the Knowledge Economy?</em> (New York: The New Press, 2003), 37.
10746 <a class="indexterm" name="idp10214192"></a>
10747 <a class="indexterm" name="idp10214976"></a>
10748 </p></div><div id="ftn.idp9823664" class="footnote"><p><a href="#idp9823664" class="para"><sup class="para">[197] </sup></a>
10749
10750 International Intellectual Property Institute (IIPI), <em class="citetitle">Patent
10751 Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
10752 Africa, a Report Prepared for the World Intellectual Property
10753 Organization</em> (Washington, D.C., 2000), 14, available at
10754 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #56</a>. For a
10755 firsthand account of the struggle over South Africa, see Hearing
10756 Before the Subcommittee on Criminal Justice, Drug Policy, and Human
10757 Resources, House Committee on Government Reform, H. Rep., 1st sess.,
10758 Ser. No. 106-126 (22 July 1999), 150&#8211;57 (statement of James
10759 Love).
10760 </p></div><div id="ftn.idp10219904" class="footnote"><p><a href="#idp10219904" class="para"><sup class="para">[198] </sup></a>
10761
10762 International Intellectual Property Institute (IIPI), <em class="citetitle">Patent
10763 Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
10764 Africa, a Report Prepared for the World Intellectual Property
10765 Organization</em> (Washington, D.C., 2000), 15.  </p></div><div id="ftn.idp10227664" class="footnote"><p><a href="#idp10227664" class="para"><sup class="para">[199] </sup></a>
10766
10767 See Sabin Russell, <span class="quote">«<span class="quote">New Crusade to Lower AIDS Drug Costs: Africa's
10768 Needs at Odds with Firms' Profit Motive,</span>»</span> <em class="citetitle">San Francisco Chronicle</em>, 24
10769 May 1999, A1, available at
10770 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #57</a>
10771 (<span class="quote">«<span class="quote">compulsory licenses and gray markets pose a threat to the entire
10772 system of intellectual property protection</span>»</span>); Robert Weissman, <span class="quote">«<span class="quote">AIDS
10773 and Developing Countries: Democratizing Access to Essential
10774 Medicines,</span>»</span> <em class="citetitle">Foreign Policy in Focus</em> 4:23 (August 1999), available at
10775 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #58</a>
10776 (describing U.S. policy); John A. Harrelson, <span class="quote">«<span class="quote">TRIPS, Pharmaceutical
10777 Patents, and the HIV/AIDS Crisis: Finding the Proper Balance Between
10778 Intellectual Property Rights and Compassion, a Synopsis,</span>»</span> <em class="citetitle">Widener Law
10779 Symposium Journal</em> (Spring 2001): 175.
10780
10781 </p></div><div id="ftn.idp10284128" class="footnote"><p><a href="#idp10284128" class="para"><sup class="para">[200] </sup></a>
10782  Jonathan Krim, <span class="quote">«<span class="quote">The Quiet War over Open-Source,</span>»</span> <em class="citetitle">Washington Post</em>,
10783 August 2003, E1, available at
10784 <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
10785 Shift on `Open Source' Meeting Spurs Stir,</span>»</span> <em class="citetitle">National Journal's Technology
10786 Daily</em>, 19 August 2003, available at
10787 <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
10788 Opposes `Open Source' Talks at WIPO,</span>»</span> <em class="citetitle">National Journal's Technology
10789 Daily</em>, 19 August 2003, available at
10790 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #61</a>.
10791 </p></div><div id="ftn.idp10297712" class="footnote"><p><a href="#idp10297712" class="para"><sup class="para">[201] </sup></a>
10792  I should disclose that I was one of the people who asked WIPO for the
10793 meeting.
10794 </p></div><div id="ftn.idp10319824" class="footnote"><p><a href="#idp10319824" class="para"><sup class="para">[202] </sup></a>
10795
10796 Microsoft's position about free and open source software is more
10797 sophisticated.  As it has repeatedly asserted, it has no problem with
10798 <span class="quote">«<span class="quote">open source</span>»</span> software or software in the public domain. Microsoft's
10799 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>
10800 license, meaning a license that requires the licensee to adopt the
10801 same terms on any derivative work. See Bradford L. Smith, <span class="quote">«<span class="quote">The Future
10802 of Software: Enabling the Marketplace to Decide,</span>»</span> <em class="citetitle">Government Policy
10803 Toward Open Source Software</em> (Washington, D.C.: AEI-Brookings Joint
10804 Center for Regulatory Studies, American Enterprise Institute for
10805 Public Policy Research, 2002), 69, available at
10806 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #62</a>. See also
10807 Craig Mundie, Microsoft senior vice president, <em class="citetitle">The Commercial Software
10808 Model</em>, discussion at New York University Stern School of Business (3
10809 May 2001), available at
10810 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #63</a>.
10811 </p></div><div id="ftn.idp10338576" class="footnote"><p><a href="#idp10338576" class="para"><sup class="para">[203] </sup></a>
10812
10813 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>.
10814 </p></div><div id="ftn.idp10370480" class="footnote"><p><a href="#idp10370480" class="para"><sup class="para">[204] </sup></a>
10815
10816 See Drahos with Braithwaite, <em class="citetitle">Information Feudalism</em>, 210&#8211;20.
10817 <a class="indexterm" name="idp10220032"></a>
10818 </p></div><div id="ftn.idp10402240" class="footnote"><p><a href="#idp10402240" class="para"><sup class="para">[205] </sup></a>
10819
10820 John Borland, <span class="quote">«<span class="quote">RIAA Sues 261 File Swappers,</span>»</span> CNET News.com, September
10821 2003, available at
10822 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #65</a>; Paul
10823 R. La Monica, <span class="quote">«<span class="quote">Music Industry Sues Swappers,</span>»</span> CNN/Money, 8 September
10824 2003, available at
10825 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #66</a>; Soni
10826 Sangha and Phyllis Furman with Robert Gearty, <span class="quote">«<span class="quote">Sued for a Song,
10827 N.Y.C. 12-Yr-Old Among 261 Cited as Sharers,</span>»</span> <em class="citetitle">New York Daily News</em>, 9
10828 September 2003, 3; Frank Ahrens, <span class="quote">«<span class="quote">RIAA's Lawsuits Meet Surprised
10829 Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among
10830 Defendants,</span>»</span> <em class="citetitle">Washington Post</em>, 10 September 2003, E1; Katie Dean,
10831 <span class="quote">«<span class="quote">Schoolgirl Settles with RIAA,</span>»</span> <em class="citetitle">Wired News</em>, 10 September 2003,
10832 available at
10833 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #67</a>.
10834 </p></div><div id="ftn.idp10409504" class="footnote"><p><a href="#idp10409504" class="para"><sup class="para">[206] </sup></a>
10835
10836 Jon Wiederhorn, <span class="quote">«<span class="quote">Eminem Gets Sued &#8230; by a Little Old Lady,</span>»</span>
10837 mtv.com, 17 September 2003, available at
10838 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #68</a>.
10839 </p></div><div id="ftn.idp10412128" class="footnote"><p><a href="#idp10412128" class="para"><sup class="para">[207] </sup></a>
10840
10841 Kenji Hall, Associated Press, <span class="quote">«<span class="quote">Japanese Book May Be Inspiration for
10842 Dylan Songs,</span>»</span> Kansascity.com, 9 July 2003, available at
10843 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #69</a>.
10844
10845 </p></div><div id="ftn.idp10422480" class="footnote"><p><a href="#idp10422480" class="para"><sup class="para">[208] </sup></a>
10846  <span class="quote">«<span class="quote">BBC Plans to Open Up Its Archive to the Public,</span>»</span> BBC press release,
10847 24 August 2003, available at
10848 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #70</a>.
10849 </p></div><div id="ftn.idp10424736" class="footnote"><p><a href="#idp10424736" class="para"><sup class="para">[209] </sup></a>
10850
10851 <span class="quote">«<span class="quote">Creative Commons and Brazil,</span>»</span> Creative Commons Weblog, 6 August 2003,
10852 available at
10853 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #71</a>.
10854 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-afterword"></a>Chapter 16. AFTERWORD</h1></div></div></div><p>
10855
10856
10857 <span class="strong"><strong>At least some</strong></span> who have read this
10858 far will agree with me that something must be done to change where we
10859 are heading. The balance of this book maps what might be done.
10860 </p><p>
10861 I divide this map into two parts: that which anyone can do now,
10862 and that which requires the help of lawmakers. If there is one lesson
10863 that we can draw from the history of remaking common sense, it is that
10864 it requires remaking how many people think about the very same issue.
10865 </p><p>
10866 That means this movement must begin in the streets. It must recruit a
10867 significant number of parents, teachers, librarians, creators,
10868 authors, musicians, filmmakers, scientists&#8212;all to tell this
10869 story in their own words, and to tell their neighbors why this battle
10870 is so important.
10871 </p><p>
10872 Once this movement has its effect in the streets, it has some hope of
10873 having an effect in Washington. We are still a democracy. What people
10874 think matters. Not as much as it should, at least when an RCA stands
10875 opposed, but still, it matters. And thus, in the second part below, I
10876 sketch changes that Congress could make to better secure a free culture.
10877 </p><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="usnow"></a>16.1. US, NOW</h2></div></div></div><p>
10878 <span class="strong"><strong>Common sense</strong></span> is with the copyright
10879 warriors because the debate so far has been framed at the
10880 extremes&#8212;as a grand either/or: either property or anarchy,
10881 either total control or artists won't be paid. If that really is the
10882 choice, then the warriors should win.
10883 </p><p>
10884 The mistake here is the error of the excluded middle. There are
10885 extremes in this debate, but the extremes are not all that there
10886 is. There are those who believe in maximal copyright&#8212;<span class="quote">«<span class="quote">All Rights
10887 Reserved</span>»</span>&#8212; and those who reject copyright&#8212;<span class="quote">«<span class="quote">No Rights
10888 Reserved.</span>»</span> The <span class="quote">«<span class="quote">All Rights Reserved</span>»</span> sorts believe that you should ask
10889 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
10890 Rights Reserved</span>»</span> sorts believe you should be able to do with content
10891 as you wish, regardless of whether you have permission or not.
10892 </p><a class="indexterm" name="idxinternetdevelopmentof2"></a><a class="indexterm" name="idxinternetinitialfreecharacterof"></a><p>
10893 When the Internet was first born, its initial architecture effectively
10894 tilted in the <span class="quote">«<span class="quote">no rights reserved</span>»</span> direction. Content could be copied
10895 perfectly and cheaply; rights could not easily be controlled. Thus,
10896 regardless of anyone's desire, the effective regime of copyright under
10897 the
10898
10899
10900 original design of the Internet was <span class="quote">«<span class="quote">no rights reserved.</span>»</span> Content was
10901 <span class="quote">«<span class="quote">taken</span>»</span> regardless of the rights. Any rights were effectively
10902 unprotected.
10903 </p><p>
10904 This initial character produced a reaction (opposite, but not quite
10905 equal) by copyright owners. That reaction has been the topic of this
10906 book. Through legislation, litigation, and changes to the network's
10907 design, copyright holders have been able to change the essential
10908 character of the environment of the original Internet. If the original
10909 architecture made the effective default <span class="quote">«<span class="quote">no rights reserved,</span>»</span> the
10910 future architecture will make the effective default <span class="quote">«<span class="quote">all rights
10911 reserved.</span>»</span> The architecture and law that surround the Internet's
10912 design will increasingly produce an environment where all use of
10913 content requires permission.  The <span class="quote">«<span class="quote">cut and paste</span>»</span> world that defines
10914 the Internet today will become a <span class="quote">«<span class="quote">get permission to cut and paste</span>»</span>
10915 world that is a creator's nightmare.
10916 </p><a class="indexterm" name="idp10448400"></a><a class="indexterm" name="idp10449792"></a><p>
10917 What's needed is a way to say something in the middle&#8212;neither
10918 <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
10919 reserved</span>»</span>&#8212; and thus a way to respect copyrights but enable
10920 creators to free content as they see fit. In other words, we need a
10921 way to restore a set of freedoms that we could just take for granted
10922 before.
10923 </p><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="examples"></a>16.1.1. 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>
10924 If you step back from the battle I've been describing here, you will
10925 recognize this problem from other contexts. Think about
10926 privacy. Before the Internet, most of us didn't have to worry much
10927 about data about our lives that we broadcast to the world. If you
10928 walked into a bookstore and browsed through some of the works of Karl
10929 Marx, you didn't need to worry about explaining your browsing habits
10930 to your neighbors or boss. The <span class="quote">«<span class="quote">privacy</span>»</span> of your browsing habits was
10931 assured.
10932 </p><p>
10933 What made it assured?
10934 </p><p>
10935 Well, if we think in terms of the modalities I described in chapter
10936 <a class="xref" href="#property-i" title="Chapter 10. «Property»">10</a>, your
10937 privacy was assured because of an inefficient architecture for
10938 gathering data and hence a market constraint (cost) on anyone who
10939 wanted to gather that data. If you were a suspected spy for North
10940 Korea, working for the CIA, no doubt your privacy would not be
10941 assured.  But that's because the CIA would (we hope) find it valuable
10942 enough to spend the thousands required to track you. But for most of
10943 us (again, we can hope), spying doesn't pay. The highly inefficient
10944 architecture of real space means we all enjoy a fairly robust amount
10945 of privacy. That privacy is guaranteed to us by friction. Not by law
10946 (there is no law protecting <span class="quote">«<span class="quote">privacy</span>»</span> in public places), and in many
10947 places, not by norms (snooping and gossip are just fun), but instead,
10948 by the costs that friction imposes on anyone who would want to spy.
10949 </p><a class="indexterm" name="idxamazon"></a><a class="indexterm" name="idp10465440"></a><a class="indexterm" name="idxinternetprivacyprotectionon"></a><p>
10950 Enter the Internet, where the cost of tracking browsing in particular
10951 has become quite tiny. If you're a customer at Amazon, then as you
10952 browse the pages, Amazon collects the data about what you've looked
10953 at. You know this because at the side of the page, there's a list of
10954 <span class="quote">«<span class="quote">recently viewed</span>»</span> pages. Now, because of the architecture of the Net
10955 and the function of cookies on the Net, it is easier to collect the
10956 data than not. The friction has disappeared, and hence any <span class="quote">«<span class="quote">privacy</span>»</span>
10957 protected by the friction disappears, too.
10958 </p><a class="indexterm" name="idp10469904"></a><p>
10959 Amazon, of course, is not the problem. But we might begin to worry
10960 about libraries. If you're one of those crazy lefties who thinks that
10961 people should have the <span class="quote">«<span class="quote">right</span>»</span> to browse in a library without the
10962 government knowing which books you look at (I'm one of those lefties,
10963 too), then this change in the technology of monitoring might concern
10964 you. If it becomes simple to gather and sort who does what in
10965 electronic spaces, then the friction-induced privacy of yesterday
10966 disappears.
10967 </p><a class="indexterm" name="idp10472288"></a><a class="indexterm" name="idp10473600"></a><p>
10968 It is this reality that explains the push of many to define <span class="quote">«<span class="quote">privacy</span>»</span>
10969 on the Internet. It is the recognition that technology can remove what
10970 friction before gave us that leads many to push for laws to do what
10971 friction did.<a href="#ftn.idp10475776" class="footnote" name="idp10475776"><sup class="footnote">[210]</sup></a>
10972 And whether you're in favor of those laws or not, it is the pattern
10973 that is important here. We must take affirmative steps to secure a
10974
10975
10976 kind of freedom that was passively provided before. A change in
10977 technology now forces those who believe in privacy to affirmatively
10978 act where, before, privacy was given by default.
10979 </p><a class="indexterm" name="idp10479792"></a><a class="indexterm" name="idp10481008"></a><a class="indexterm" name="idp10482336"></a><a class="indexterm" name="idp10483152"></a><a class="indexterm" name="idxfreesoftwareopensourcesoftwarefsoss2"></a><p>
10980 A similar story could be told about the birth of the free software
10981 movement. When computers with software were first made available
10982 commercially, the software&#8212;both the source code and the
10983 binaries&#8212; was free. You couldn't run a program written for a
10984 Data General machine on an IBM machine, so Data General and IBM didn't
10985 care much about controlling their software.
10986 </p><a class="indexterm" name="idxstallmanrichard"></a><p>
10987 That was the world Richard Stallman was born into, and while he was a
10988 researcher at MIT, he grew to love the community that developed when
10989 one was free to explore and tinker with the software that ran on
10990 machines. Being a smart sort himself, and a talented programmer,
10991 Stallman grew to depend upon the freedom to add to or modify other
10992 people's work.
10993 </p><p>
10994 In an academic setting, at least, that's not a terribly radical
10995 idea. In a math department, anyone would be free to tinker with a
10996 proof that someone offered. If you thought you had a better way to
10997 prove a theorem, you could take what someone else did and change
10998 it. In a classics department, if you believed a colleague's
10999 translation of a recently discovered text was flawed, you were free to
11000 improve it. Thus, to Stallman, it seemed obvious that you should be
11001 free to tinker with and improve the code that ran a machine. This,
11002 too, was knowledge. Why shouldn't it be open for criticism like
11003 anything else?
11004 </p><a class="indexterm" name="idxproprietarycode"></a><p>
11005 No one answered that question. Instead, the architecture of revenue
11006 for computing changed. As it became possible to import programs from
11007 one system to another, it became economically attractive (at least in
11008 the view of some) to hide the code of your program. So, too, as
11009 companies started selling peripherals for mainframe systems. If I
11010 could just take your printer driver and copy it, then that would make
11011 it easier for me to sell a printer to the market than it was for you.
11012 </p><p>
11013 Thus, the practice of proprietary code began to spread, and by the
11014 early 1980s, Stallman found himself surrounded by proprietary code.
11015
11016 The world of free software had been erased by a change in the
11017 economics of computing. And as he believed, if he did nothing about
11018 it, then the freedom to change and share software would be
11019 fundamentally weakened.
11020 </p><a class="indexterm" name="idp10493040"></a><a class="indexterm" name="idp10494256"></a><p>
11021 Therefore, in 1984, Stallman began a project to build a free operating
11022 system, so that at least a strain of free software would survive. That
11023 was the birth of the GNU project, into which Linus Torvalds's <span class="quote">«<span class="quote">Linux</span>»</span>
11024 kernel was added to produce the GNU/Linux operating system.
11025 <a class="indexterm" name="idp10496048"></a>
11026 <a class="indexterm" name="idp10496880"></a>
11027 </p><p>
11028 Stallman's technique was to use copyright law to build a world of
11029 software that must be kept free. Software licensed under the Free
11030 Software Foundation's GPL cannot be modified and distributed unless
11031 the source code for that software is made available as well. Thus,
11032 anyone building upon GPL'd software would have to make their buildings
11033 free as well. This would assure, Stallman believed, that an ecology of
11034 code would develop that remained free for others to build upon. His
11035 fundamental goal was freedom; innovative creative code was a
11036 byproduct.
11037 </p><p>
11038 Stallman was thus doing for software what privacy advocates now
11039 do for privacy. He was seeking a way to rebuild a kind of freedom that
11040 was taken for granted before. Through the affirmative use of licenses
11041 that bind copyrighted code, Stallman was affirmatively reclaiming a
11042 space where free software would survive. He was actively protecting
11043 what before had been passively guaranteed.
11044 </p><a class="indexterm" name="idp10499552"></a><a class="indexterm" name="idp10500944"></a><a class="indexterm" name="idxacademicjournals"></a><a class="indexterm" name="idxscientificjournals"></a><p>
11045 Finally, consider a very recent example that more directly resonates
11046 with the story of this book. This is the shift in the way academic and
11047 scientific journals are produced.
11048 </p><a class="indexterm" name="idxlexisandwestlaw"></a><a class="indexterm" name="idxlawdatabasesofcasereportsin"></a><a class="indexterm" name="idp10509264"></a><a class="indexterm" name="idp10510368"></a><p>
11049 As digital technologies develop, it is becoming obvious to many that
11050 printing thousands of copies of journals every month and sending them
11051 to libraries is perhaps not the most efficient way to distribute
11052 knowledge. Instead, journals are increasingly becoming electronic, and
11053 libraries and their users are given access to these electronic
11054 journals through password-protected sites. Something similar to this
11055 has been happening in law for almost thirty years: Lexis and Westlaw
11056 have had electronic versions of case reports available to subscribers
11057 to their service.  Although a Supreme Court opinion is not
11058 copyrighted, and anyone is free to go to a library and read it, Lexis
11059 and Westlaw are also free
11060
11061 to charge users for the privilege of gaining access to that Supreme
11062 Court opinion through their respective services.
11063 </p><a class="indexterm" name="idp10513024"></a><a class="indexterm" name="idxpublicdomainlicensesystemforrebuildingof"></a><p>
11064 There's nothing wrong in general with this, and indeed, the ability to
11065 charge for access to even public domain materials is a good incentive
11066 for people to develop new and innovative ways to spread knowledge.
11067 The law has agreed, which is why Lexis and Westlaw have been allowed
11068 to flourish. And if there's nothing wrong with selling the public
11069 domain, then there could be nothing wrong, in principle, with selling
11070 access to material that is not in the public domain.
11071 </p><a class="indexterm" name="idp10516976"></a><a class="indexterm" name="idp10518224"></a><p>
11072 But what if the only way to get access to social and scientific data
11073 was through proprietary services? What if no one had the ability to
11074 browse this data except by paying for a subscription?
11075 </p><a class="indexterm" name="idxlibrariesjournalsin"></a><p>
11076 As many are beginning to notice, this is increasingly the reality with
11077 scientific journals. When these journals were distributed in paper
11078 form, libraries could make the journals available to anyone who had
11079 access to the library. Thus, patients with cancer could become cancer
11080 experts because the library gave them access. Or patients trying to
11081 understand the risks of a certain treatment could research those risks
11082 by reading all available articles about that treatment. This freedom
11083 was therefore a function of the institution of libraries (norms) and
11084 the technology of paper journals (architecture)&#8212;namely, that it
11085 was very hard to control access to a paper journal.
11086 </p><p>
11087 As journals become electronic, however, the publishers are demanding
11088 that libraries not give the general public access to the
11089 journals. This means that the freedoms provided by print journals in
11090 public libraries begin to disappear. Thus, as with privacy and with
11091 software, a changing technology and market shrink a freedom taken for
11092 granted before.
11093 </p><a class="indexterm" name="idp10523744"></a><a class="indexterm" name="idp10524544"></a><p>
11094 This shrinking freedom has led many to take affirmative steps to
11095 restore the freedom that has been lost. The Public Library of Science
11096 (PLoS), for example, is a nonprofit corporation dedicated to making
11097 scientific research available to anyone with a Web connection. Authors
11098
11099 of scientific work submit that work to the Public Library of Science.
11100 That work is then subject to peer review. If accepted, the work is
11101 then deposited in a public, electronic archive and made permanently
11102 available for free. PLoS also sells a print version of its work, but
11103 the copyright for the print journal does not inhibit the right of
11104 anyone to redistribute the work for free.
11105 </p><a class="indexterm" name="idp10526768"></a><p>
11106 This is one of many such efforts to restore a freedom taken for
11107 granted before, but now threatened by changing technology and markets.
11108 There's no doubt that this alternative competes with the traditional
11109 publishers and their efforts to make money from the exclusive
11110 distribution of content. But competition in our tradition is
11111 presumptively a good&#8212;especially when it helps spread knowledge
11112 and science.
11113 </p><a class="indexterm" name="idp10528240"></a><a class="indexterm" name="idp10530160"></a><a class="indexterm" name="idp10531408"></a></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="oneidea"></a>16.1.2. Rebuilding Free Culture: One Idea</h3></div></div></div><a class="indexterm" name="idxcreativecommons"></a><p>
11114 The same strategy could be applied to culture, as a response to the
11115 increasing control effected through law and technology.
11116 </p><a class="indexterm" name="idp10536064"></a><p>
11117 Enter the Creative Commons. The Creative Commons is a nonprofit
11118 corporation established in Massachusetts, but with its home at
11119 Stanford University. Its aim is to build a layer of
11120 <span class="emphasis"><em>reasonable</em></span> copyright on top of the extremes that
11121 now reign. It does this by making it easy for people to build upon
11122 other people's work, by making it simple for creators to express the
11123 freedom for others to take and build upon their work. Simple tags,
11124 tied to human-readable descriptions, tied to bulletproof licenses,
11125 make this possible.
11126 </p><p>
11127 <span class="emphasis"><em>Simple</em></span>&#8212;which means without a middleman, or
11128 without a lawyer.  By developing a free set of licenses that people
11129 can attach to their content, Creative Commons aims to mark a range of
11130 content that can easily, and reliably, be built upon. These tags are
11131 then linked to machine-readable versions of the license that enable
11132 computers automatically to identify content that can easily be
11133 shared. These three expressions together&#8212;a legal license, a
11134 human-readable description, and
11135
11136 machine-readable tags&#8212;constitute a Creative Commons license. A
11137 Creative Commons license constitutes a grant of freedom to anyone who
11138 accesses the license, and more importantly, an expression of the ideal
11139 that the person associated with the license believes in something
11140 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
11141 CC mark, which does not mean that copyright is waived, but that
11142 certain freedoms are given.
11143 </p><p>
11144 These freedoms are beyond the freedoms promised by fair use. Their
11145 precise contours depend upon the choices the creator makes. The
11146 creator can choose a license that permits any use, so long as
11147 attribution is given. She can choose a license that permits only
11148 noncommercial use.  She can choose a license that permits any use so
11149 long as the same freedoms are given to other uses (<span class="quote">«<span class="quote">share and share
11150 alike</span>»</span>). Or any use so long as no derivative use is made. Or any use
11151 at all within developing nations. Or any sampling use, so long as full
11152 copies are not made. Or lastly, any educational use.
11153 </p><p>
11154 These choices thus establish a range of freedoms beyond the default of
11155 copyright law. They also enable freedoms that go beyond traditional
11156 fair use. And most importantly, they express these freedoms in a way
11157 that subsequent users can use and rely upon without the need to hire a
11158 lawyer. Creative Commons thus aims to build a layer of content,
11159 governed by a layer of reasonable copyright law, that others can build
11160 upon. Voluntary choice of individuals and creators will make this
11161 content available. And that content will in turn enable us to rebuild
11162 a public domain.
11163 </p><a class="indexterm" name="idp10543536"></a><p>
11164 This is just one project among many within the Creative Commons.  And
11165 of course, Creative Commons is not the only organization pursuing such
11166 freedoms. But the point that distinguishes the Creative Commons from
11167 many is that we are not interested only in talking about a public
11168 domain or in getting legislators to help build a public domain. Our
11169 aim is to build a movement of consumers and producers
11170
11171 of content (<span class="quote">«<span class="quote">content conducers,</span>»</span> as attorney Mia Garlick calls them)
11172 who help build the public domain and, by their work, demonstrate the
11173 importance of the public domain to other creativity.
11174 </p><a class="indexterm" name="idp10546064"></a><p>
11175 The aim is not to fight the <span class="quote">«<span class="quote">All Rights Reserved</span>»</span> sorts. The aim is to
11176 complement them. The problems that the law creates for us as a culture
11177 are produced by insane and unintended consequences of laws written
11178 centuries ago, applied to a technology that only Jefferson could have
11179 imagined. The rules may well have made sense against a background of
11180 technologies from centuries ago, but they do not make sense against
11181 the background of digital technologies. New rules&#8212;with different
11182 freedoms, expressed in ways so that humans without lawyers can use
11183 them&#8212;are needed. Creative Commons gives people a way effectively
11184 to begin to build those rules.
11185 </p><a class="indexterm" name="idxbooksfreeonline2"></a><p>
11186 Why would creators participate in giving up total control? Some
11187 participate to better spread their content. Cory Doctorow, for
11188 example, is a science fiction author. His first novel, <em class="citetitle">Down and Out in
11189 the Magic Kingdom</em>, was released on-line and for free, under a Creative
11190 Commons license, on the same day that it went on sale in bookstores.
11191 </p><p>
11192 Why would a publisher ever agree to this? I suspect his publisher
11193 reasoned like this: There are two groups of people out there: (1)
11194 those who will buy Cory's book whether or not it's on the Internet,
11195 and (2) those who may never hear of Cory's book, if it isn't made
11196 available for free on the Internet. Some part of (1) will download
11197 Cory's book instead of buying it. Call them bad-(1)s. Some part of (2)
11198 will download Cory's book, like it, and then decide to buy it. Call
11199 them (2)-goods.  If there are more (2)-goods than bad-(1)s, the
11200 strategy of releasing Cory's book free on-line will probably
11201 <span class="emphasis"><em>increase</em></span> sales of Cory's book.
11202 </p><p>
11203 Indeed, the experience of his publisher clearly supports that
11204 conclusion.  The book's first printing was exhausted months before the
11205 publisher had expected. This first novel of a science fiction author
11206 was a total success.
11207 </p><a class="indexterm" name="idp10553424"></a><a class="indexterm" name="idp10554240"></a><p>
11208 The idea that free content might increase the value of nonfree content
11209 was confirmed by the experience of another author. Peter Wayner,
11210
11211 who wrote a book about the free software movement titled <em class="citetitle">Free for All</em>,
11212 made an electronic version of his book free on-line under a Creative
11213 Commons license after the book went out of print. He then monitored
11214 used book store prices for the book. As predicted, as the number of
11215 downloads increased, the used book price for his book increased, as
11216 well.
11217 </p><a class="indexterm" name="idp10556688"></a><a class="indexterm" name="idp10558000"></a><a class="indexterm" name="idp10558816"></a><a class="indexterm" name="idp10559632"></a><p>
11218 These are examples of using the Commons to better spread proprietary
11219 content. I believe that is a wonderful and common use of the
11220 Commons. There are others who use Creative Commons licenses for other
11221 reasons. Many who use the <span class="quote">«<span class="quote">sampling license</span>»</span> do so because anything
11222 else would be hypocritical. The sampling license says that others are
11223 free, for commercial or noncommercial purposes, to sample content from
11224 the licensed work; they are just not free to make full copies of the
11225 licensed work available to others. This is consistent with their own
11226 art&#8212;they, too, sample from others. Because the
11227 <span class="emphasis"><em>legal</em></span> costs of sampling are so high (Walter
11228 Leaphart, manager of the rap group Public Enemy, which was born
11229 sampling the music of others, has stated that he does not <span class="quote">«<span class="quote">allow</span>»</span>
11230 Public Enemy to sample anymore, because the legal costs are so
11231 high<a href="#ftn.idp10562848" class="footnote" name="idp10562848"><sup class="footnote">[211]</sup></a>),
11232 these artists release into the creative environment content
11233 that others can build upon, so that their form of creativity might grow.
11234 </p><p>
11235 Finally, there are many who mark their content with a Creative Commons
11236 license just because they want to express to others the importance of
11237 balance in this debate. If you just go along with the system as it is,
11238 you are effectively saying you believe in the <span class="quote">«<span class="quote">All Rights Reserved</span>»</span>
11239 model. Good for you, but many do not. Many believe that however
11240 appropriate that rule is for Hollywood and freaks, it is not an
11241 appropriate description of how most creators view the rights
11242 associated with their content. The Creative Commons license expresses
11243 this notion of <span class="quote">«<span class="quote">Some Rights Reserved,</span>»</span> and gives many the chance to
11244 say it to others.
11245 </p><p>
11246 In the first six months of the Creative Commons experiment, over
11247 1 million objects were licensed with these free-culture licenses. The next
11248 step is partnerships with middleware content providers to help them
11249 build into their technologies simple ways for users to mark their content
11250
11251
11252 with Creative Commons freedoms. Then the next step is to watch and
11253 celebrate creators who build content based upon content set free.
11254 </p><p>
11255 These are first steps to rebuilding a public domain. They are not
11256 mere arguments; they are action. Building a public domain is the first
11257 step to showing people how important that domain is to creativity and
11258 innovation. Creative Commons relies upon voluntary steps to achieve
11259 this rebuilding. They will lead to a world in which more than voluntary
11260 steps are possible.
11261 </p><p>
11262 Creative Commons is just one example of voluntary efforts by
11263 individuals and creators to change the mix of rights that now govern
11264 the creative field. The project does not compete with copyright; it
11265 complements it. Its aim is not to defeat the rights of authors, but to
11266 make it easier for authors and creators to exercise their rights more
11267 flexibly and cheaply. That difference, we believe, will enable
11268 creativity to spread more easily.
11269 </p><a class="indexterm" name="idp10569824"></a><a class="indexterm" name="idp10571232"></a></div></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="themsoon"></a>16.2. THEM, SOON</h2></div></div></div><p>
11270 <span class="strong"><strong>We will</strong></span> not reclaim a free culture
11271 by individual action alone. It will also take important reforms of
11272 laws. We have a long way to go before the politicians will listen to
11273 these ideas and implement these reforms.  But that also means that we
11274 have time to build awareness around the changes that we need.
11275 </p><p>
11276 In this chapter, I outline five kinds of changes: four that are general,
11277 and one that's specific to the most heated battle of the day, music. Each
11278 is a step, not an end. But any of these steps would carry us a long way
11279 to our end.
11280 </p><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="formalities"></a>16.2.1. 1. More Formalities</h3></div></div></div><p>
11281 If you buy a house, you have to record the sale in a deed. If you buy land
11282 upon which to build a house, you have to record the purchase in a deed.
11283 If you buy a car, you get a bill of sale and register the car. If you buy an
11284 airplane ticket, it has your name on it.
11285 </p><p>
11286
11287 These are all formalities associated with property. They are
11288 requirements that we all must bear if we want our property to be
11289 protected.
11290 </p><p>
11291 In contrast, under current copyright law, you automatically get a
11292 copyright, regardless of whether you comply with any formality. You
11293 don't have to register. You don't even have to mark your content. The
11294 default is control, and <span class="quote">«<span class="quote">formalities</span>»</span> are banished.
11295 </p><p>
11296 Why?
11297 </p><p>
11298 As I suggested in chapter <a class="xref" href="#property-i" title="Chapter 10. «Property»">10</a>, the motivation to abolish formalities was a
11299 good one. In the world before digital technologies, formalities
11300 imposed a burden on copyright holders without much benefit. Thus, it
11301 was progress when the law relaxed the formal requirements that a
11302 copyright owner must bear to protect and secure his work. Those
11303 formalities were getting in the way.
11304 </p><p>
11305 But the Internet changes all this. Formalities today need not be a
11306 burden. Rather, the world without formalities is the world that
11307 burdens creativity. Today, there is no simple way to know who owns
11308 what, or with whom one must deal in order to use or build upon the
11309 creative work of others. There are no records, there is no system to
11310 trace&#8212; there is no simple way to know how to get permission. Yet
11311 given the massive increase in the scope of copyright's rule, getting
11312 permission is a necessary step for any work that builds upon our
11313 past. And thus, the <span class="emphasis"><em>lack</em></span> of formalities forces
11314 many into silence where they otherwise could speak.
11315 </p><p>
11316 The law should therefore change this requirement<a href="#ftn.idp10583920" class="footnote" name="idp10583920"><sup class="footnote">[212]</sup></a>&#8212;but it
11317 should not change it by going back to the old, broken system. We
11318 should require formalities, but we should establish a system that will
11319 create the incentives to minimize the burden of these formalities.
11320 </p><p>
11321 The important formalities are three: marking copyrighted work,
11322 registering copyrights, and renewing the claim to
11323 copyright. Traditionally, the first of these three was something the
11324 copyright owner did; the second two were something the government
11325 did. But a revised system of formalities would banish the government
11326 from the process, except for the sole purpose of approving standards
11327 developed by others.
11328 </p><div class="section"><div class="titlepage"><div><div><h4 class="title"><a name="registration"></a>16.2.1.1. REGISTRATION AND RENEWAL</h4></div></div></div><p>
11329 Under the old system, a copyright owner had to file a registration
11330 with the Copyright Office to register or renew a copyright. When
11331 filing that registration, the copyright owner paid a fee. As with most
11332 government agencies, the Copyright Office had little incentive to
11333 minimize the burden of registration; it also had little incentive to
11334 minimize the fee.  And as the Copyright Office is not a main target of
11335 government policymaking, the office has historically been terribly
11336 underfunded. Thus, when people who know something about the process
11337 hear this idea about formalities, their first reaction is
11338 panic&#8212;nothing could be worse than forcing people to deal with
11339 the mess that is the Copyright Office.
11340 </p><p>
11341 Yet it is always astonishing to me that we, who come from a tradition
11342 of extraordinary innovation in governmental design, can no longer
11343 think innovatively about how governmental functions can be designed.
11344 Just because there is a public purpose to a government role, it
11345 doesn't follow that the government must actually administer the
11346 role. Instead, we should be creating incentives for private parties to
11347 serve the public, subject to standards that the government sets.
11348 </p><p>
11349 In the context of registration, one obvious model is the Internet.
11350 There are at least 32 million Web sites registered around the world.
11351 Domain name owners for these Web sites have to pay a fee to keep their
11352 registration alive. In the main top-level domains (.com, .org, .net),
11353 there is a central registry. The actual registrations are, however,
11354 performed by many competing registrars. That competition drives the
11355 cost of registering down, and more importantly, it drives the ease
11356 with which registration occurs up.
11357 </p><p>
11358 We should adopt a similar model for the registration and renewal of
11359 copyrights. The Copyright Office may well serve as the central
11360 registry, but it should not be in the registrar business. Instead, it
11361 should establish a database, and a set of standards for registrars. It
11362 should approve registrars that meet its standards. Those registrars
11363 would then compete with one another to deliver the cheapest and
11364 simplest systems for registering and renewing copyrights. That
11365 competition would substantially lower the burden of this
11366 formality&#8212;while producing a database
11367
11368 of registrations that would facilitate the licensing of content.
11369 </p></div><div class="section"><div class="titlepage"><div><div><h4 class="title"><a name="marking"></a>16.2.1.2. MARKING</h4></div></div></div><p>
11370 It used to be that the failure to include a copyright notice on a
11371 creative work meant that the copyright was forfeited. That was a harsh
11372 punishment for failing to comply with a regulatory rule&#8212;akin to
11373 imposing the death penalty for a parking ticket in the world of
11374 creative rights.  Here again, there is no reason that a marking
11375 requirement needs to be enforced in this way. And more importantly,
11376 there is no reason a marking requirement needs to be enforced
11377 uniformly across all media.
11378 </p><p>
11379 The aim of marking is to signal to the public that this work is
11380 copyrighted and that the author wants to enforce his rights. The mark
11381 also makes it easy to locate a copyright owner to secure permission to
11382 use the work.
11383 </p><p>
11384 One of the problems the copyright system confronted early on was
11385 that different copyrighted works had to be differently marked. It wasn't
11386 clear how or where a statue was to be marked, or a record, or a film. A
11387 new marking requirement could solve these problems by recognizing
11388 the differences in media, and by allowing the system of marking to
11389 evolve as technologies enable it to. The system could enable a special
11390 signal from the failure to mark&#8212;not the loss of the copyright, but the
11391 loss of the right to punish someone for failing to get permission first.
11392 </p><p>
11393 Let's start with the last point. If a copyright owner allows his work
11394 to be published without a copyright notice, the consequence of that
11395 failure need not be that the copyright is lost. The consequence could
11396 instead be that anyone has the right to use this work, until the
11397 copyright owner complains and demonstrates that it is his work and he
11398 doesn't give permission.<a href="#ftn.idp10595168" class="footnote" name="idp10595168"><sup class="footnote">[213]</sup></a>
11399 The meaning of an unmarked work would therefore be <span class="quote">«<span class="quote">use unless someone
11400 complains.</span>»</span> If someone does complain, then the obligation would be to
11401 stop using the work in any new
11402
11403 work from then on though no penalty would attach for existing uses.
11404 This would create a strong incentive for copyright owners to mark
11405 their work.
11406 </p><p>
11407 That in turn raises the question about how work should best be
11408 marked. Here again, the system needs to adjust as the technologies
11409 evolve. The best way to ensure that the system evolves is to limit the
11410 Copyright Office's role to that of approving standards for marking
11411 content that have been crafted elsewhere.
11412 </p><a class="indexterm" name="idp10599152"></a><p>
11413 For example, if a recording industry association devises a method for
11414 marking CDs, it would propose that to the Copyright Office. The
11415 Copyright Office would hold a hearing, at which other proposals could
11416 be made. The Copyright Office would then select the proposal that it
11417 judged preferable, and it would base that choice
11418 <span class="emphasis"><em>solely</em></span> upon the consideration of which method
11419 could best be integrated into the registration and renewal system. We
11420 would not count on the government to innovate; but we would count on
11421 the government to keep the product of innovation in line with its
11422 other important functions.
11423 </p><p>
11424 Finally, marking content clearly would simplify registration
11425 requirements.  If photographs were marked by author and year, there
11426 would be little reason not to allow a photographer to reregister, for
11427 example, all photographs taken in a particular year in one quick
11428 step. The aim of the formality is not to burden the creator; the
11429 system itself should be kept as simple as possible.
11430 </p><p>
11431 The objective of formalities is to make things clear. The existing
11432 system does nothing to make things clear. Indeed, it seems designed to
11433 make things unclear.
11434 </p><p>
11435 If formalities such as registration were reinstated, one of the most
11436 difficult aspects of relying upon the public domain would be removed.
11437 It would be simple to identify what content is presumptively free; it
11438 would be simple to identify who controls the rights for a particular
11439 kind of content; it would be simple to assert those rights, and to renew
11440 that assertion at the appropriate time.
11441 </p></div></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="shortterms"></a>16.2.2. 2. Shorter Terms</h3></div></div></div><p>
11442 The term of copyright has gone from fourteen years to ninety-five
11443 years for corporate authors, and life of the author plus seventy years for
11444 natural authors.
11445 </p><p>
11446 In <em class="citetitle">The Future of Ideas</em>, I proposed a seventy-five-year term,
11447 granted in five-year increments with a requirement of renewal every
11448 five years.  That seemed radical enough at the time. But after we lost
11449 <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, the proposals became even more
11450 radical. <em class="citetitle">The Economist</em> endorsed a proposal for a fourteen-year
11451 copyright term.<a href="#ftn.idp10608368" class="footnote" name="idp10608368"><sup class="footnote">[214]</sup></a>
11452 Others have proposed tying the term to the term for patents.
11453 </p><p>
11454 I agree with those who believe that we need a radical change in
11455 copyright's term. But whether fourteen years or seventy-five, there
11456 are four principles that are important to keep in mind about copyright
11457 terms.
11458 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><p>
11459
11460 <span class="emphasis"><em>Keep it short:</em></span> The term should be as long as
11461 necessary to give incentives to create, but no longer. If it were tied
11462 to very strong protections for authors (so authors were able to
11463 reclaim rights from publishers), rights to the same work (not
11464 derivative works) might be extended further. The key is not to tie the
11465 work up with legal regulations when it no longer benefits an author.
11466 </p></li><li class="listitem"><p>
11467
11468 <span class="emphasis"><em>Keep it simple:</em></span> The line between the public
11469 domain and protected content must be kept clear. Lawyers like the
11470 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
11471 <span class="quote">«<span class="quote">expression.</span>»</span>  That kind of law gives them lots of work. But our
11472 framers had a simpler idea in mind: protected versus unprotected.  The
11473 value of short terms is that there is little need to build exceptions
11474 into copyright when the term itself is kept short. A clear and active
11475 <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
11476 <span class="quote">«<span class="quote">idea/expression</span>»</span> less necessary to navigate.
11477
11478 </p></li><li class="listitem"><a class="indexterm" name="idp10619248"></a><p>
11479
11480 <span class="emphasis"><em>Keep it alive:</em></span> Copyright should have to be
11481 renewed.  Especially if the maximum term is long, the copyright owner
11482 should be required to signal periodically that he wants the protection
11483 continued. This need not be an onerous burden, but there is no reason
11484 this monopoly protection has to be granted for free. On average, it
11485 takes ninety minutes for a veteran to apply for a
11486 pension.<a href="#ftn.idp10621408" class="footnote" name="idp10621408"><sup class="footnote">[215]</sup></a>
11487 If we make veterans suffer that burden, I don't see why we couldn't
11488 require authors to spend ten minutes every fifty years to file a
11489 single form.
11490 </p></li><li class="listitem"><p>
11491
11492 <span class="emphasis"><em>Keep it prospective:</em></span> Whatever the term of
11493 copyright should be, the clearest lesson that economists teach is that
11494 a term once given should not be extended. It might have been a mistake
11495 in 1923 for the law to offer authors only a fifty-six-year term. I
11496 don't think so, but it's possible. If it was a mistake, then the
11497 consequence was that we got fewer authors to create in 1923 than we
11498 otherwise would have. But we can't correct that mistake today by
11499 increasing the term. No matter what we do today, we will not increase
11500 the number of authors who wrote in 1923. Of course, we can increase
11501 the reward that those who write now get (or alternatively, increase
11502 the copyright burden that smothers many works that are today
11503 invisible). But increasing their reward will not increase their
11504 creativity in 1923.  What's not done is not done, and there's nothing
11505 we can do about that now.  </p></li></ol></div><p>
11506 These changes together should produce an <span class="emphasis"><em>average</em></span>
11507 copyright term that is much shorter than the current term. Until 1976,
11508 the average term was just 32.2 years. We should be aiming for the
11509 same.
11510 </p><p>
11511 No doubt the extremists will call these ideas <span class="quote">«<span class="quote">radical.</span>»</span> (After all, I
11512 call them <span class="quote">«<span class="quote">extremists.</span>»</span>) But again, the term I recommended was longer
11513 than the term under Richard Nixon. How <span class="quote">«<span class="quote">radical</span>»</span> can it be to ask for
11514 a more generous copyright law than Richard Nixon presided over?
11515 </p></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="freefairuse"></a>16.2.3. 3. Free Use Vs. Fair Use</h3></div></div></div><a class="indexterm" name="idp10631104"></a><a class="indexterm" name="idp10631904"></a><p>
11516 As I observed at the beginning of this book, property law originally
11517 granted property owners the right to control their property from the
11518 ground to the heavens. The airplane came along. The scope of property
11519 rights quickly changed. There was no fuss, no constitutional
11520 challenge.  It made no sense anymore to grant that much control, given
11521 the emergence of that new technology.
11522 </p><p>
11523 Our Constitution gives Congress the power to give authors <span class="quote">«<span class="quote">exclusive
11524 right</span>»</span> to <span class="quote">«<span class="quote">their writings.</span>»</span> Congress has given authors an exclusive
11525 right to <span class="quote">«<span class="quote">their writings</span>»</span> plus any derivative writings (made by
11526 others) that are sufficiently close to the author's original
11527 work. Thus, if I write a book, and you base a movie on that book, I
11528 have the power to deny you the right to release that movie, even
11529 though that movie is not <span class="quote">«<span class="quote">my writing.</span>»</span>
11530 </p><a class="indexterm" name="idp10636288"></a><p>
11531 Congress granted the beginnings of this right in 1870, when it
11532 expanded the exclusive right of copyright to include a right to
11533 control translations and dramatizations of a work.<a href="#ftn.idp10637552" class="footnote" name="idp10637552"><sup class="footnote">[216]</sup></a>
11534 The courts have expanded it slowly through judicial interpretation
11535 ever since. This expansion has been commented upon by one of the law's
11536 greatest judges, Judge Benjamin Kaplan.
11537 </p><div class="blockquote"><blockquote class="blockquote"><p>
11538 So inured have we become to the extension of the monopoly to a
11539 large range of so-called derivative works, that we no longer sense
11540 the oddity of accepting such an enlargement of copyright while
11541 yet intoning the abracadabra of idea and expression.<a href="#ftn.idp10640000" class="footnote" name="idp10640000"><sup class="footnote">[217]</sup></a>
11542 </p></blockquote></div><p>
11543 I think it's time to recognize that there are airplanes in this field and
11544 the expansiveness of these rights of derivative use no longer make
11545 sense. More precisely, they don't make sense for the period of time that
11546 a copyright runs. And they don't make sense as an amorphous grant.
11547 Consider each limitation in turn.
11548 </p><p>
11549 <span class="emphasis"><em>Term:</em></span> If Congress wants to grant a derivative
11550 right, then that right should be for a much shorter term. It makes
11551 sense to protect John
11552
11553
11554 Grisham's right to sell the movie rights to his latest novel (or at least
11555 I'm willing to assume it does); but it does not make sense for that right
11556 to run for the same term as the underlying copyright. The derivative
11557 right could be important in inducing creativity; it is not important long
11558 after the creative work is done.
11559 <a class="indexterm" name="idp10643312"></a>
11560 </p><p>
11561 <span class="emphasis"><em>Scope:</em></span> Likewise should the scope of derivative
11562 rights be narrowed.  Again, there are some cases in which derivative
11563 rights are important.  Those should be specified. But the law should
11564 draw clear lines around regulated and unregulated uses of copyrighted
11565 material. When all <span class="quote">«<span class="quote">reuse</span>»</span> of creative material was within the control
11566 of businesses, perhaps it made sense to require lawyers to negotiate
11567 the lines. It no longer makes sense for lawyers to negotiate the
11568 lines. Think about all the creative possibilities that digital
11569 technologies enable; now imagine pouring molasses into the
11570 machines. That's what this general requirement of permission does to
11571 the creative process. Smothers it.
11572 </p><a class="indexterm" name="idp10646144"></a><p>
11573 This was the point that Alben made when describing the making of the
11574 Clint Eastwood CD. While it makes sense to require negotiation for
11575 foreseeable derivative rights&#8212;turning a book into a movie, or a
11576 poem into a musical score&#8212;it doesn't make sense to require
11577 negotiation for the unforeseeable. Here, a statutory right would make
11578 much more sense.
11579 </p><p>
11580 In each of these cases, the law should mark the uses that are
11581 protected, and the presumption should be that other uses are not
11582 protected.  This is the reverse of the recommendation of my colleague
11583 Paul Goldstein.<a href="#ftn.idp10648272" class="footnote" name="idp10648272"><sup class="footnote">[218]</sup></a>
11584 His view is that the law should be written so that
11585 expanded protections follow expanded uses.
11586 </p><p>
11587 Goldstein's analysis would make perfect sense if the cost of the legal
11588 system were small. But as we are currently seeing in the context of
11589 the Internet, the uncertainty about the scope of protection, and the
11590 incentives to protect existing architectures of revenue, combined with
11591 a strong copyright, weaken the process of innovation.
11592 </p><p>
11593 The law could remedy this problem either by removing protection
11594
11595 beyond the part explicitly drawn or by granting reuse rights upon
11596 certain statutory conditions. Either way, the effect would be to free
11597 a great deal of culture to others to cultivate. And under a statutory
11598 rights regime, that reuse would earn artists more income.
11599 </p></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="liberatemusic"></a>16.2.4. 4. Liberate the Music&#8212;Again</h3></div></div></div><p>
11600 The battle that got this whole war going was about music, so it
11601 wouldn't be fair to end this book without addressing the issue that
11602 is, to most people, most pressing&#8212;music. There is no other
11603 policy issue that better teaches the lessons of this book than the
11604 battles around the sharing of music.
11605 </p><p>
11606 The appeal of file-sharing music was the crack cocaine of the
11607 Internet's growth. It drove demand for access to the Internet more
11608 powerfully than any other single application. It was the Internet's
11609 killer app&#8212;possibly in two senses of that word. It no doubt was
11610 the application that drove demand for bandwidth. It may well be the
11611 application that drives demand for regulations that in the end kill
11612 innovation on the network.
11613 </p><p>
11614 The aim of copyright, with respect to content in general and music in
11615 particular, is to create the incentives for music to be composed,
11616 performed, and, most importantly, spread. The law does this by giving
11617 an exclusive right to a composer to control public performances of his
11618 work, and to a performing artist to control copies of her performance.
11619 </p><p>
11620 File-sharing networks complicate this model by enabling the spread of
11621 content for which the performer has not been paid. But of course,
11622 that's not all the file-sharing networks do. As I described in chapter
11623 <a class="xref" href="#piracy" title="Chapter 5. «Piracy»">5</a>, they enable
11624 four different kinds of sharing:
11625 </p><div class="orderedlist"><ol class="orderedlist" type="A"><li class="listitem"><p>
11626
11627 There are some who are using sharing networks as substitutes
11628 for purchasing CDs.
11629 </p></li><li class="listitem"><p>
11630
11631 There are also some who are using sharing networks to sample,
11632 on the way to purchasing CDs.
11633 </p></li><li class="listitem"><p>
11634
11635
11636 There are many who are using file-sharing networks to get access to
11637 content that is no longer sold but is still under copyright or that
11638 would have been too cumbersome to buy off the Net.
11639 </p></li><li class="listitem"><p>
11640
11641 There are many who are using file-sharing networks to get access to
11642 content that is not copyrighted or to get access that the copyright
11643 owner plainly endorses.
11644 </p></li></ol></div><a class="indexterm" name="idp10663280"></a><a class="indexterm" name="idp10664352"></a><p>
11645 Any reform of the law needs to keep these different uses in focus. It
11646 must avoid burdening type D even if it aims to eliminate type A. The
11647 eagerness with which the law aims to eliminate type A, moreover,
11648 should depend upon the magnitude of type B. As with VCRs, if the net
11649 effect of sharing is actually not very harmful, the need for regulation is
11650 significantly weakened.
11651 </p><p>
11652 As I said in chapter <a class="xref" href="#piracy" title="Chapter 5. «Piracy»">5</a>, the actual harm caused by sharing is
11653 controversial.  For the purposes of this chapter, however, I assume
11654 the harm is real. I assume, in other words, that type A sharing is
11655 significantly greater than type B, and is the dominant use of sharing
11656 networks.
11657 </p><p>
11658 Nonetheless, there is a crucial fact about the current technological
11659 context that we must keep in mind if we are to understand how the law
11660 should respond.
11661 </p><p>
11662 Today, file sharing is addictive. In ten years, it won't be. It is
11663 addictive today because it is the easiest way to gain access to a
11664 broad range of content.  It won't be the easiest way to get access to
11665 a broad range of content in ten years. Today, access to the Internet
11666 is cumbersome and slow&#8212;we in the United States are lucky to have
11667 broadband service at 1.5 MBs, and very rarely do we get service at
11668 that speed both up and down. Although wireless access is growing, most
11669 of us still get access across wires. Most only gain access through a
11670 machine with a keyboard. The idea of the always on, always connected
11671 Internet is mainly just an idea.
11672 </p><p>
11673 But it will become a reality, and that means the way we get access to
11674 the Internet today is a technology in transition. Policy makers should
11675 not make policy on the basis of technology in transition. They should
11676
11677 make policy on the basis of where the technology is going. The
11678 question should not be, how should the law regulate sharing in this
11679 world?  The question should be, what law will we require when the
11680 network becomes the network it is clearly becoming? That network is
11681 one in which every machine with electricity is essentially on the Net;
11682 where everywhere you are&#8212;except maybe the desert or the
11683 Rockies&#8212;you can instantaneously be connected to the
11684 Internet. Imagine the Internet as ubiquitous as the best cell-phone
11685 service, where with the flip of a device, you are connected.
11686 </p><a class="indexterm" name="idp10669920"></a><p>
11687 In that world, it will be extremely easy to connect to services that
11688 give you access to content on the fly&#8212;such as Internet radio,
11689 content that is streamed to the user when the user demands. Here,
11690 then, is the critical point: When it is <span class="emphasis"><em>extremely</em></span>
11691 easy to connect to services that give access to content, it will be
11692 <span class="emphasis"><em>easier</em></span> to connect to services that give you
11693 access to content than it will be to download and store content
11694 <span class="emphasis"><em>on the many devices you will have for playing
11695 content</em></span>. It will be easier, in other words, to subscribe
11696 than it will be to be a database manager, as everyone in the
11697 download-sharing world of Napster-like technologies essentially
11698 is. Content services will compete with content sharing, even if the
11699 services charge money for the content they give access to. Already
11700 cell-phone services in Japan offer music (for a fee) streamed over
11701 cell phones (enhanced with plugs for headphones). The Japanese are
11702 paying for this content even though <span class="quote">«<span class="quote">free</span>»</span> content is available in the
11703 form of MP3s across the Web.<a href="#ftn.idp10674432" class="footnote" name="idp10674432"><sup class="footnote">[219]</sup></a>
11704
11705 </p><p>
11706 This point about the future is meant to suggest a perspective on the
11707 present: It is emphatically temporary. The <span class="quote">«<span class="quote">problem</span>»</span> with file
11708 sharing&#8212;to the extent there is a real problem&#8212;is a problem
11709 that will increasingly disappear as it becomes easier to connect to
11710 the Internet.  And thus it is an extraordinary mistake for policy
11711 makers today to be <span class="quote">«<span class="quote">solving</span>»</span> this problem in light of a technology
11712 that will be gone tomorrow.  The question should not be how to
11713 regulate the Internet to eliminate file sharing (the Net will evolve
11714 that problem away). The question instead should be how to assure that
11715 artists get paid, during
11716
11717
11718 this transition between twentieth-century models for doing business
11719 and twenty-first-century technologies.
11720 </p><p>
11721 The answer begins with recognizing that there are different <span class="quote">«<span class="quote">problems</span>»</span>
11722 here to solve. Let's start with type D content&#8212;uncopyrighted
11723 content or copyrighted content that the artist wants shared. The
11724 <span class="quote">«<span class="quote">problem</span>»</span> with this content is to make sure that the technology that
11725 would enable this kind of sharing is not rendered illegal. You can
11726 think of it this way: Pay phones are used to deliver ransom demands,
11727 no doubt.  But there are many who need to use pay phones who have
11728 nothing to do with ransoms. It would be wrong to ban pay phones in
11729 order to eliminate kidnapping.
11730 </p><p>
11731 Type C content raises a different <span class="quote">«<span class="quote">problem.</span>»</span> This is content that was,
11732 at one time, published and is no longer available. It may be
11733 unavailable because the artist is no longer valuable enough for the
11734 record label he signed with to carry his work. Or it may be
11735 unavailable because the work is forgotten. Either way, the aim of the
11736 law should be to facilitate the access to this content, ideally in a
11737 way that returns something to the artist.
11738 </p><a class="indexterm" name="idp10682048"></a><a class="indexterm" name="idp10683152"></a><p>
11739 Again, the model here is the used book store. Once a book goes out of
11740 print, it may still be available in libraries and used book
11741 stores. But libraries and used book stores don't pay the copyright
11742 owner when someone reads or buys an out-of-print book. That makes
11743 total sense, of course, since any other system would be so burdensome
11744 as to eliminate the possibility of used book stores' existing. But
11745 from the author's perspective, this <span class="quote">«<span class="quote">sharing</span>»</span> of his content without
11746 his being compensated is less than ideal.
11747 </p><p>
11748 The model of used book stores suggests that the law could simply deem
11749 out-of-print music fair game. If the publisher does not make copies of
11750 the music available for sale, then commercial and noncommercial
11751 providers would be free, under this rule, to <span class="quote">«<span class="quote">share</span>»</span> that content,
11752 even though the sharing involved making a copy. The copy here would be
11753 incidental to the trade; in a context where commercial publishing has
11754 ended, trading music should be as free as trading books.
11755 </p><p>
11756
11757
11758 Alternatively, the law could create a statutory license that would
11759 ensure that artists get something from the trade of their work. For
11760 example, if the law set a low statutory rate for the commercial
11761 sharing of content that was not offered for sale by a commercial
11762 publisher, and if that rate were automatically transferred to a trust
11763 for the benefit of the artist, then businesses could develop around
11764 the idea of trading this content, and artists would benefit from this
11765 trade.
11766 </p><p>
11767 This system would also create an incentive for publishers to keep
11768 works available commercially. Works that are available commercially
11769 would not be subject to this license. Thus, publishers could protect
11770 the right to charge whatever they want for content if they kept the
11771 work commercially available. But if they don't keep it available, and
11772 instead, the computer hard disks of fans around the world keep it
11773 alive, then any royalty owed for such copying should be much less than
11774 the amount owed a commercial publisher.
11775 </p><p>
11776 The hard case is content of types A and B, and again, this case is
11777 hard only because the extent of the problem will change over time, as
11778 the technologies for gaining access to content change. The law's
11779 solution should be as flexible as the problem is, understanding that
11780 we are in the middle of a radical transformation in the technology for
11781 delivering and accessing content.
11782 </p><p>
11783 So here's a solution that will at first seem very strange to both sides
11784 in this war, but which upon reflection, I suggest, should make some sense.
11785 </p><p>
11786 Stripped of the rhetoric about the sanctity of property, the basic
11787 claim of the content industry is this: A new technology (the Internet)
11788 has harmed a set of rights that secure copyright. If those rights are to
11789 be protected, then the content industry should be compensated for that
11790 harm. Just as the technology of tobacco harmed the health of millions
11791 of Americans, or the technology of asbestos caused grave illness to
11792 thousands of miners, so, too, has the technology of digital networks
11793 harmed the interests of the content industry.
11794 </p><p>
11795
11796 I love the Internet, and so I don't like likening it to tobacco or
11797 asbestos.  But the analogy is a fair one from the perspective of the
11798 law.  And it suggests a fair response: Rather than seeking to destroy
11799 the Internet, or the p2p technologies that are currently harming
11800 content providers on the Internet, we should find a relatively simple
11801 way to compensate those who are harmed.
11802 </p><a class="indexterm" name="idxpromisestokeepfisher"></a><p>
11803 The idea would be a modification of a proposal that has been
11804 floated by Harvard law professor William Fisher.<a href="#ftn.idp10694272" class="footnote" name="idp10694272"><sup class="footnote">[220]</sup></a>
11805 Fisher suggests a very clever way around the current impasse of the
11806 Internet. Under his plan, all content capable of digital transmission
11807 would (1) be marked with a digital watermark (don't worry about how
11808 easy it is to evade these marks; as you'll see, there's no incentive
11809 to evade them). Once the content is marked, then entrepreneurs would
11810 develop (2) systems to monitor how many items of each content were
11811 distributed. On the basis of those numbers, then (3) artists would be
11812 compensated. The compensation would be paid for by (4) an appropriate
11813 tax.
11814 </p><p>
11815 Fisher's proposal is careful and comprehensive. It raises a million
11816 questions, most of which he answers well in his upcoming book,
11817 <em class="citetitle">Promises to Keep</em>. The modification that I would make is relatively
11818 simple: Fisher imagines his proposal replacing the existing copyright
11819 system.  I imagine it complementing the existing system. The aim of
11820 the proposal would be to facilitate compensation to the extent that
11821 harm could be shown. This compensation would be temporary, aimed at
11822 facilitating a transition between regimes. And it would require
11823 renewal after a period of years. If it continues to make sense to
11824 facilitate free exchange of content, supported through a taxation
11825 system, then it can be continued. If this form of protection is no
11826 longer necessary, then the system could lapse into the old system of
11827 controlling access.
11828 </p><a class="indexterm" name="idp10715392"></a><a class="indexterm" name="idp10716704"></a><p>
11829 Fisher would balk at the idea of allowing the system to lapse. His aim
11830 is not just to ensure that artists are paid, but also to ensure that
11831 the system supports the widest range of <span class="quote">«<span class="quote">semiotic democracy</span>»</span>
11832 possible. But the aims of semiotic democracy would be satisfied if the
11833 other changes I described were accomplished&#8212;in particular, the
11834 limits on derivative
11835
11836
11837 uses. A system that simply charges for access would not greatly burden
11838 semiotic democracy if there were few limitations on what one was
11839 allowed to do with the content itself.
11840 </p><a class="indexterm" name="idp10719504"></a><a class="indexterm" name="idp10720288"></a><a class="indexterm" name="idp10721104"></a><a class="indexterm" name="idp10721920"></a><p>
11841 No doubt it would be difficult to calculate the proper measure of
11842 <span class="quote">«<span class="quote">harm</span>»</span> to an industry. But the difficulty of making that calculation
11843 would be outweighed by the benefit of facilitating innovation. This
11844 background system to compensate would also not need to interfere with
11845 innovative proposals such as Apple's MusicStore. As experts predicted
11846 when Apple launched the MusicStore, it could beat <span class="quote">«<span class="quote">free</span>»</span> by being
11847 easier than free is. This has proven correct: Apple has sold millions
11848 of songs at even the very high price of 99 cents a song. (At 99 cents,
11849 the cost is the equivalent of a per-song CD price, though the labels
11850 have none of the costs of a CD to pay.) Apple's move was countered by
11851 Real Networks, offering music at just 79 cents a song. And no doubt
11852 there will be a great deal of competition to offer and sell music
11853 on-line.
11854 </p><a class="indexterm" name="idp10725072"></a><a class="indexterm" name="idp10725888"></a><a class="indexterm" name="idp10726992"></a><a class="indexterm" name="idp10727824"></a><a class="indexterm" name="idp10728928"></a><p>
11855 This competition has already occurred against the background of <span class="quote">«<span class="quote">free</span>»</span>
11856 music from p2p systems. As the sellers of cable television have known
11857 for thirty years, and the sellers of bottled water for much more than
11858 that, there is nothing impossible at all about <span class="quote">«<span class="quote">competing with free.</span>»</span>
11859 Indeed, if anything, the competition spurs the competitors to offer
11860 new and better products. This is precisely what the competitive market
11861 was to be about. Thus in Singapore, though piracy is rampant, movie
11862 theaters are often luxurious&#8212;with <span class="quote">«<span class="quote">first class</span>»</span> seats, and meals
11863 served while you watch a movie&#8212;as they struggle and succeed in
11864 finding ways to compete with <span class="quote">«<span class="quote">free.</span>»</span>
11865 </p><p>
11866 This regime of competition, with a backstop to assure that artists
11867 don't lose, would facilitate a great deal of innovation in the
11868 delivery of content. That competition would continue to shrink type A
11869 sharing. It would inspire an extraordinary range of new
11870 innovators&#8212;ones who would have a right to the content, and would
11871 no longer fear the uncertain and barbarically severe punishments of
11872 the law.
11873 </p><p>
11874 In summary, then, my proposal is this:
11875 </p><p>
11876
11877
11878 The Internet is in transition. We should not be regulating a
11879 technology in transition. We should instead be regulating to minimize
11880 the harm to interests affected by this technological change, while
11881 enabling, and encouraging, the most efficient technology we can
11882 create.
11883 </p><p>
11884 We can minimize that harm while maximizing the benefit to innovation
11885 by
11886 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><p>
11887
11888 guaranteeing the right to engage in type D sharing;
11889 </p></li><li class="listitem"><p>
11890
11891 permitting noncommercial type C sharing without liability,
11892 and commercial type C sharing at a low and fixed rate set by
11893 statute;
11894 </p></li><li class="listitem"><p>
11895
11896 while in this transition, taxing and compensating for type A
11897 sharing, to the extent actual harm is demonstrated.
11898 </p></li></ol></div><p>
11899 But what if <span class="quote">«<span class="quote">piracy</span>»</span> doesn't disappear? What if there is a competitive
11900 market providing content at a low cost, but a significant number of
11901 consumers continue to <span class="quote">«<span class="quote">take</span>»</span> content for nothing? Should the law do
11902 something then?
11903 </p><p>
11904 Yes, it should. But, again, what it should do depends upon how the
11905 facts develop. These changes may not eliminate type A sharing. But the
11906 real issue is not whether it eliminates sharing in the abstract.  The
11907 real issue is its effect on the market. Is it better (a) to have a
11908 technology that is 95 percent secure and produces a market of size <em class="citetitle">x</em>,
11909 or (b) to have a technology that is 50 percent secure but produces a
11910 market of five times <em class="citetitle">x</em>? Less secure might produce more unauthorized
11911 sharing, but it is likely to also produce a much bigger market in
11912 authorized sharing. The most important thing is to assure artists'
11913 compensation without breaking the Internet. Once that's assured, then
11914 it may well be appropriate to find ways to track down the petty
11915 pirates.
11916 </p><p>
11917 But we're a long way away from whittling the problem down to this
11918 subset of type A sharers. And our focus until we're there should not
11919 be on finding ways to break the Internet. Our focus until we're there
11920
11921
11922 should be on how to make sure the artists are paid, while protecting
11923 the space for innovation and creativity that the Internet is.
11924 </p></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="firelawyers"></a>16.2.5. 5. Fire Lots of Lawyers</h3></div></div></div><p>
11925 I'm a lawyer. I make lawyers for a living. I believe in the law. I believe
11926 in the law of copyright. Indeed, I have devoted my life to working in
11927 law, not because there are big bucks at the end but because there are
11928 ideals at the end that I would love to live.
11929 </p><p>
11930 Yet much of this book has been a criticism of lawyers, or the role
11931 lawyers have played in this debate. The law speaks to ideals, but it
11932 is my view that our profession has become too attuned to the
11933 client. And in a world where the rich clients have one strong view,
11934 the unwillingness of the profession to question or counter that one
11935 strong view queers the law.
11936 </p><a class="indexterm" name="idp10746704"></a><a class="indexterm" name="idp10747520"></a><p>
11937 The evidence of this bending is compelling. I'm attacked as a
11938 <span class="quote">«<span class="quote">radical</span>»</span> by many within the profession, yet the positions that I am
11939 advocating are precisely the positions of some of the most moderate
11940 and significant figures in the history of this branch of the
11941 law. Many, for example, thought crazy the challenge that we brought to
11942 the Copyright Term Extension Act. Yet just thirty years ago, the
11943 dominant scholar and practitioner in the field of copyright, Melville
11944 Nimmer, thought it obvious.<a href="#ftn.idp10749856" class="footnote" name="idp10749856"><sup class="footnote">[221]</sup></a>
11945
11946 </p><p>
11947 However, my criticism of the role that lawyers have played in this
11948 debate is not just about a professional bias. It is more importantly
11949 about our failure to actually reckon the costs of the law.
11950 </p><p>
11951 Economists are supposed to be good at reckoning costs and benefits.
11952 But more often than not, economists, with no clue about how the legal
11953 system actually functions, simply assume that the transaction costs of
11954 the legal system are slight.<a href="#ftn.idp10752976" class="footnote" name="idp10752976"><sup class="footnote">[222]</sup></a>
11955 They see a system that has been around for hundreds of years, and they
11956 assume it works the way their elementary school civics class taught
11957 them it works.
11958 </p><p>
11959
11960 But the legal system doesn't work. Or more accurately, it doesn't work
11961 for anyone except those with the most resources. Not because the
11962 system is corrupt. I don't think our legal system (at the federal
11963 level, at least) is at all corrupt. I mean simply because the costs of
11964 our legal system are so astonishingly high that justice can
11965 practically never be done.
11966 </p><p>
11967 These costs distort free culture in many ways. A lawyer's time is
11968 billed at the largest firms at more than $400 per hour. How much time
11969 should such a lawyer spend reading cases carefully, or researching
11970 obscure strands of authority? The answer is the increasing reality:
11971 very little.  The law depended upon the careful articulation and
11972 development of doctrine, but the careful articulation and development
11973 of legal doctrine depends upon careful work. Yet that careful work
11974 costs too much, except in the most high-profile and costly cases.
11975 </p><p>
11976 The costliness and clumsiness and randomness of this system mock
11977 our tradition. And lawyers, as well as academics, should consider it
11978 their duty to change the way the law works&#8212;or better, to change the
11979 law so that it works. It is wrong that the system works well only for the
11980 top 1 percent of the clients. It could be made radically more efficient,
11981 and inexpensive, and hence radically more just.
11982 </p><p>
11983 But until that reform is complete, we as a society should keep the law
11984 away from areas that we know it will only harm. And that is precisely
11985 what the law will too often do if too much of our culture is left to
11986 its review.
11987 </p><a class="indexterm" name="idp10761328"></a><p>
11988 Think about the amazing things your kid could do or make with digital
11989 technology&#8212;the film, the music, the Web page, the blog. Or think
11990 about the amazing things your community could facilitate with digital
11991 technology&#8212;a wiki, a barn raising, activism to change something.
11992 Think about all those creative things, and then imagine cold molasses
11993 poured onto the machines. This is what any regime that requires
11994 permission produces. Again, this is the reality of Brezhnev's Russia.
11995 </p><p>
11996 The law should regulate in certain areas of culture&#8212;but it should
11997 regulate culture only where that regulation does good. Yet lawyers
11998
11999
12000 rarely test their power, or the power they promote, against this
12001 simple pragmatic question: <span class="quote">«<span class="quote">Will it do good?</span>»</span> When challenged about
12002 the expanding reach of the law, the lawyer answers, <span class="quote">«<span class="quote">Why not?</span>»</span>
12003 </p><p>
12004 We should ask, <span class="quote">«<span class="quote">Why?</span>»</span> Show me why your regulation of culture is
12005 needed. Show me how it does good. And until you can show me both,
12006 keep your lawyers away.
12007 </p></div></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp10475776" class="footnote"><p><a href="#idp10475776" class="para"><sup class="para">[210] </sup></a>
12008
12009
12010 See, for example, Marc Rotenberg, <span class="quote">«<span class="quote">Fair Information Practices and the
12011 Architecture of Privacy (What Larry Doesn't Get),</span>»</span> <em class="citetitle">Stanford Technology
12012 Law Review</em> 1 (2001): par. 6&#8211;18, available at
12013
12014 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #72</a>
12015 (describing examples in which technology defines privacy policy). See
12016 also Jeffrey Rosen, <em class="citetitle">The Naked Crowd: Reclaiming Security and Freedom
12017 in an Anxious Age</em> (New York: Random House, 2004) (mapping tradeoffs
12018 between technology and privacy).</p></div><div id="ftn.idp10562848" class="footnote"><p><a href="#idp10562848" class="para"><sup class="para">[211] </sup></a>
12019
12020 <em class="citetitle">Willful Infringement: A Report from the Front Lines of the Real
12021 Culture Wars</em> (2003), produced by Jed Horovitz, directed by Greg
12022 Hittelman, a Fiat Lucre production, available at
12023 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #72</a>.
12024 </p></div><div id="ftn.idp10583920" class="footnote"><p><a href="#idp10583920" class="para"><sup class="para">[212] </sup></a>
12025
12026 The proposal I am advancing here would apply to American works only.
12027 Obviously, I believe it would be beneficial for the same idea to be
12028 adopted by other countries as well.</p></div><div id="ftn.idp10595168" class="footnote"><p><a href="#idp10595168" class="para"><sup class="para">[213] </sup></a>
12029
12030 There would be a complication with derivative works that I have not
12031 solved here. In my view, the law of derivatives creates a more complicated
12032 system than is justified by the marginal incentive it creates.
12033 </p></div><div id="ftn.idp10608368" class="footnote"><p><a href="#idp10608368" class="para"><sup class="para">[214] </sup></a>
12034
12035
12036 <span class="quote">«<span class="quote">A Radical Rethink,</span>»</span> <em class="citetitle">Economist</em>, 366:8308 (25 January 2003): 15,
12037 available at
12038 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #74</a>.
12039 </p></div><div id="ftn.idp10621408" class="footnote"><p><a href="#idp10621408" class="para"><sup class="para">[215] </sup></a>
12040
12041 Department of Veterans Affairs, Veteran's Application for Compensation
12042 and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001),
12043 available at
12044 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #75</a>.
12045 </p></div><div id="ftn.idp10637552" class="footnote"><p><a href="#idp10637552" class="para"><sup class="para">[216] </sup></a>
12046
12047 Benjamin Kaplan, <em class="citetitle">An Unhurried View of Copyright</em> (New York: Columbia
12048 University Press, 1967), 32.
12049 </p></div><div id="ftn.idp10640000" class="footnote"><p><a href="#idp10640000" class="para"><sup class="para">[217] </sup></a>
12050  Ibid., 56.
12051 </p></div><div id="ftn.idp10648272" class="footnote"><p><a href="#idp10648272" class="para"><sup class="para">[218] </sup></a>
12052
12053 Paul Goldstein, <em class="citetitle">Copyright's Highway: From Gutenberg to the Celestial
12054 Jukebox</em> (Stanford: Stanford University Press, 2003), 187&#8211;216.
12055 <a class="indexterm" name="idp10477472"></a>
12056 </p></div><div id="ftn.idp10674432" class="footnote"><p><a href="#idp10674432" class="para"><sup class="para">[219] </sup></a>
12057
12058 See, for example, <span class="quote">«<span class="quote">Music Media Watch,</span>»</span> The J@pan Inc. Newsletter, 3
12059 April 2002, available at
12060 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #76</a>.
12061 </p></div><div id="ftn.idp10694272" class="footnote"><p><a href="#idp10694272" class="para"><sup class="para">[220] </sup></a>
12062
12063 <a class="indexterm" name="idxartistspayments3"></a>
12064 William Fisher, <em class="citetitle">Digital Music: Problems and Possibilities</em> (last
12065 revised: 10 October 2000), available at
12066 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #77</a>; William
12067 Fisher, <em class="citetitle">Promises to Keep: Technology, Law, and the Future of
12068 Entertainment</em> (forthcoming) (Stanford: Stanford University Press,
12069 2004), ch. 6, available at
12070 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #78</a>. Professor
12071 Netanel has proposed a related idea that would exempt noncommercial
12072 sharing from the reach of copyright and would establish compensation
12073 to artists to balance any loss. See Neil Weinstock Netanel, <span class="quote">«<span class="quote">Impose a
12074 Noncommercial Use Levy to Allow Free P2P File Sharing,</span>»</span> available at
12075 <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
12076 Broadband?</span>»</span> <em class="citetitle">Washington Post</em>, 8 January 2002, A17; Philip S. Corwin on
12077 behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr.,
12078 Chairman of the Senate Foreign Relations Committee, 26 February 2002,
12079 available at
12080 <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
12081 Use Fee (IPUF)</em>, 3 March 2002, available at
12082 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #81</a>; Jefferson Graham,
12083 <span class="quote">«<span class="quote">Kazaa, Verizon Propose to Pay Artists Directly,</span>»</span> <em class="citetitle">USA Today</em>, 13 May
12084 2002, available at
12085 <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>
12086 IEEE Spectrum Online, 1 July 2002, available at
12087 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #83</a>; Declan
12088 McCullagh, <span class="quote">«<span class="quote">Verizon's Copyright Campaign,</span>»</span> CNET News.com, 27 August
12089 2002, available at
12090 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #84</a>.
12091 Fisher's proposal is very similar to Richard Stallman's proposal for
12092 DAT. Unlike Fisher's, Stallman's proposal would not pay artists directly
12093 proportionally, though more popular artists would get more than the less
12094 popular. As is typical with Stallman, his proposal predates the current
12095 debate by about a decade. See
12096 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #85</a>.
12097 <a class="indexterm" name="idp10709152"></a>
12098 <a class="indexterm" name="idp10709968"></a>
12099 <a class="indexterm" name="idp10710784"></a>
12100 <a class="indexterm" name="idp10711616"></a>
12101 </p></div><div id="ftn.idp10749856" class="footnote"><p><a href="#idp10749856" class="para"><sup class="para">[221] </sup></a>
12102
12103 Lawrence Lessig, <span class="quote">«<span class="quote">Copyright's First Amendment</span>»</span> (Melville B. Nimmer
12104 Memorial Lecture), <em class="citetitle">UCLA Law Review</em> 48 (2001): 1057, 1069&#8211;70.
12105 </p></div><div id="ftn.idp10752976" class="footnote"><p><a href="#idp10752976" class="para"><sup class="para">[222] </sup></a>
12106
12107 A good example is the work of Professor Stan Liebowitz. Liebowitz is
12108 to be commended for his careful review of data about infringement,
12109 leading him to question his own publicly stated
12110 position&#8212;twice. He initially predicted that downloading would
12111 substantially harm the industry. He then revised his view in light of
12112 the data, and he has since revised his view again.  Compare Stan
12113 J. Liebowitz, <em class="citetitle">Rethinking the Network Economy: The True Forces That
12114 Drive the Digital Marketplace</em> (New York: Amacom, 2002), (reviewing his
12115 original view but expressing skepticism) with Stan J.  Liebowitz,
12116 <span class="quote">«<span class="quote">Will MP3s Annihilate the Record Industry?</span>»</span> working paper, June 2003,
12117 available at
12118 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #86</a>.
12119 Liebowitz's careful analysis is extremely valuable in estimating the
12120 effect of file-sharing technology. In my view, however, he
12121 underestimates the costs of the legal system. See, for example,
12122 <em class="citetitle">Rethinking</em>, 174&#8211;76.
12123 <a class="indexterm" name="idp10751536"></a>
12124 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-notes"></a>Chapter 17. NOTES</h1></div></div></div><p>
12125 Throughout this text, there are references to links on the World Wide
12126 Web. As anyone who has tried to use the Web knows, these links can be
12127 highly unstable. I have tried to remedy the instability by redirecting
12128 readers to the original source through the Web site associated with
12129 this book. For each link below, you can go to
12130 http://free-culture.cc/notes and locate the original source by
12131 clicking on the number after the # sign. If the original link remains
12132 alive, you will be redirected to that link. If the original link has
12133 disappeared, you will be redirected to an appropriate reference for
12134 the material.
12135 </p></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-acknowledgments"></a>Chapter 18. ACKNOWLEDGMENTS</h1></div></div></div><p>
12136 This book is the product of a long and as yet unsuccessful struggle that
12137 began when I read of Eric Eldred's war to keep books free. Eldred's
12138 work helped launch a movement, the free culture movement, and it is
12139 to him that this book is dedicated.
12140 </p><a class="indexterm" name="idp10771968"></a><p>
12141 I received guidance in various places from friends and academics,
12142 including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner,
12143 Mark Rose, and Kathleen Sullivan. And I received correction and
12144 guidance from many amazing students at Stanford Law School and
12145 Stanford University. They included Andrew B. Coan, John Eden, James
12146 P. Fellers, Christopher Guzelian, Erica Goldberg, Robert Hallman,
12147 Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, Alina Ng, and
12148 Erica Platt. I am particularly grateful to Catherine Crump and Harry
12149 Surden, who helped direct their research, and to Laura Lynch, who
12150 brilliantly managed the army that they assembled, and provided her own
12151 critical eye on much of this.
12152 </p><p>
12153 Yuko Noguchi helped me to understand the laws of Japan as well as
12154 its culture. I am thankful to her, and to the many in Japan who helped
12155 me prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki,
12156 Michihiro Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro
12157
12158 Yonezawa. I am thankful as well as to Professor Nobuhiro Nakayama,
12159 and the Tokyo University Business Law Center, for giving me the
12160 chance to spend time in Japan, and to Tadashi Shiraishi and Kiyokazu
12161 Yamagami for their generous help while I was there.
12162 </p><p>
12163 These are the traditional sorts of help that academics regularly draw
12164 upon. But in addition to them, the Internet has made it possible to
12165 receive advice and correction from many whom I have never even
12166 met. Among those who have responded with extremely helpful advice to
12167 requests on my blog about the book are Dr. Mohammad Al-Ubaydli, David
12168 Gerstein, and Peter DiMauro, as well as a long list of those who had
12169 specific ideas about ways to develop my argument. They included
12170 Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob Devine,
12171 Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy Hunsinger,
12172 Vaughn Iverson, John Karabaic, Jeff Keltner, James Lindenschmidt,
12173 K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan
12174 McMullen, Fred Norton, John Pormann, Pedro A. D.  Rezende, Shabbir
12175 Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker,
12176 Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt
12177 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>
12178 and Richard Yanco. (I apologize if I have missed anyone; with
12179 computers come glitches, and a crash of my e-mail system meant I lost
12180 a bunch of great replies.)
12181 </p><p>
12182 Richard Stallman and Michael Carroll each read the whole book in
12183 draft, and each provided extremely helpful correction and advice.
12184 Michael helped me to see more clearly the significance of the
12185 regulation of derivitive works. And Richard corrected an
12186 embarrassingly large number of errors. While my work is in part
12187 inspired by Stallman's, he does not agree with me in important places
12188 throughout this book.
12189 </p><p>
12190 Finally, and forever, I am thankful to Bettina, who has always
12191 insisted that there would be unending happiness away from these
12192 battles, and who has always been right. This slow learner is, as ever,
12193 grateful for her perpetual patience and love.
12194 </p></div><div class="index"><div class="titlepage"><div><div><h1 class="title"><a name="idp10779456"></a>Index</h1></div></div></div><div class="index"><div class="indexdiv"><h3>Symbols</h3><dl><dt>60 Minutes, <a class="indexterm" href="#collectors">Collectors</a></dt></dl></div><div class="indexdiv"><h3>A</h3><dl><dt>ABC, <a class="indexterm" href="#mere-copyists">«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">«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">Eldred</a>-<a class="indexterm" href="#eldred">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">Eldred</a></dt><dt>Alben, Alex, <a class="indexterm" href="#transformers">Transformers</a>-<a class="indexterm" href="#transformers">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">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">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">«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">Creators</a>-<a class="indexterm" href="#creators">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">«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">Collectors</a></dt><dd><dl><dt>(see also Internet Archive)</dt></dl></dd><dt>archives, digital, <a class="indexterm" href="#collectors">Collectors</a>-<a class="indexterm" href="#collectors">Collectors</a>, <a class="indexterm" href="#together">Together</a>, <a class="indexterm" href="#eldred">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">Harms</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Arrow, Kenneth, <a class="indexterm" href="#eldred">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">Transformers</a></dt><dt>recording industry payments to, <a class="indexterm" href="#catalogs">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">Transformers</a>-<a class="indexterm" href="#transformers">Transformers</a></dt></dl></dd><dt>ASCAP, <a class="indexterm" href="#idp7026672">«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">Eldred</a>, <a class="indexterm" href="#eldred-ii">Eldred II</a></dt></dl></div><div class="indexdiv"><h3>B</h3><dl><dt>Bacon, Francis, <a class="indexterm" href="#founders">Founders</a></dt><dt>Barish, Stephanie, <a class="indexterm" href="#mere-copyists">«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">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">Eldred II</a></dt><dt>Berman, Howard L., <a class="indexterm" href="#chimera">Chimera</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Berne Convention (1908), <a class="indexterm" href="#eldred-ii">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">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«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">Transformers</a></dt><dt>Boland, Lois, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Bolling, Ruben, <a class="indexterm" href="#eldred">Eldred</a></dt><dt>Bono, Mary, <a class="indexterm" href="#eldred">Eldred</a></dt><dt>Bono, Sonny, <a class="indexterm" href="#eldred">Eldred</a></dt><dt>books</dt><dd><dl><dt>English copyright law developed for, <a class="indexterm" href="#founders">Founders</a>-<a class="indexterm" href="#founders">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">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">Collectors</a></dt></dl></dd><dt>booksellers, English, <a class="indexterm" href="#founders">Founders</a>-<a class="indexterm" href="#founders">Founders</a></dt><dt>Boswell, James, <a class="indexterm" href="#founders">Founders</a></dt><dt>bots, <a class="indexterm" href="#collectors">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">Founders</a></dt><dt>Brandeis, Louis D., <a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#mere-copyists">«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">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">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">Eldred</a></dt><dt>Brown, John Seely, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«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">Eldred</a></dt><dt>Bunyan, John, <a class="indexterm" href="#founders">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">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Camp Chaos, <a class="indexterm" href="#transformers">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">Creators</a>-<a class="indexterm" href="#creators">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">Harms</a>, <a class="indexterm" href="#eldred-ii">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">Harms</a>, <a class="indexterm" href="#eldred-ii">Eldred II</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>CBS, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a></dt><dt>CD-ROMs, film clips used in, <a class="indexterm" href="#transformers">Transformers</a>-<a class="indexterm" href="#transformers">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">Chimera</a>-<a class="indexterm" href="#chimera">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">«Mere Copyists»</a></dt><dt>Coase, Ronald, <a class="indexterm" href="#eldred">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">«Mere Copyists»</a></dt><dt>Comcast, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>comics, Japanese, <a class="indexterm" href="#creators">Creators</a>-<a class="indexterm" href="#creators">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">«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">Founders</a></dt><dt>Commons, John R., <a class="indexterm" href="#property-i">«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">«Mere Copyists»</a></dt><dt>Conger, <a class="indexterm" href="#founders">Founders</a></dt><dt>Congress, U.S.</dt><dd><dl><dt>constitutional powers of, <a class="indexterm" href="#eldred">Eldred</a>-<a class="indexterm" href="#eldred">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">Eldred</a>-<a class="indexterm" href="#eldred">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">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">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">Eldred</a>-<a class="indexterm" href="#eldred">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">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">Founders</a>-<a class="indexterm" href="#founders">Founders</a></dt><dt>constitutional purpose of, <a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">Eldred</a></dt><dt>duration of, <a class="indexterm" href="#creators">Creators</a>-<a class="indexterm" href="#creators">Creators</a>, <a class="indexterm" href="#founders">Founders</a>-<a class="indexterm" href="#founders">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">Eldred</a>-<a class="indexterm" href="#eldred">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">Founders</a>-<a class="indexterm" href="#founders">Founders</a>, <a class="indexterm" href="#eldred">Eldred</a>-<a class="indexterm" href="#eldred">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">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">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">Catalogs</a>-<a class="indexterm" href="#catalogs">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">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">Catalogs</a>-<a class="indexterm" href="#catalogs">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">Catalogs</a>-<a class="indexterm" href="#catalogs">Catalogs</a></dt><dt>statutory damages of, <a class="indexterm" href="#catalogs">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">«Property»</a>-<a class="indexterm" href="#property-i">«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="#idp7026672">«PIRACY»</a></dt><dt>development of, <a class="indexterm" href="#founders">Founders</a>-<a class="indexterm" href="#founders">Founders</a></dt><dt>English, <a class="indexterm" href="#idp7026672">«PIRACY»</a>, <a class="indexterm" href="#founders">Founders</a>-<a class="indexterm" href="#founders">Founders</a></dt><dt>European, <a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>fair use and, <a class="indexterm" href="#recorders">Recorders</a>-<a class="indexterm" href="#recorders">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">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">Creators</a>-<a class="indexterm" href="#creators">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="#idp7026672">«PIRACY»</a>-<a class="indexterm" href="#idp7026672">«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">Eldred</a>-<a class="indexterm" href="#eldred">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">Chimera</a>-<a class="indexterm" href="#chimera">Chimera</a></dt><dt>Court of Appeals</dt><dd><dl><dt>Ninth Circuit, <a class="indexterm" href="#transformers">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="#idp7026672">«PIRACY»</a>-<a class="indexterm" href="#idp7026672">«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">Creators</a>-<a class="indexterm" href="#creators">Creators</a></dt><dt>legal restrictions on, <a class="indexterm" href="#idp7026672">«PIRACY»</a>-<a class="indexterm" href="#idp7026672">«PIRACY»</a></dt></dl></dd><dt>Crichton, Michael, <a class="indexterm" href="#mere-copyists">«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">«Mere Copyists»</a></dt><dt>Daley, Elizabeth, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«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">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">«Mere Copyists»</a></dt><dt>democracy</dt><dd><dl><dt>in technologies of expression, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a></dt><dt>public discourse in, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«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">Creators</a>-<a class="indexterm" href="#creators">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">«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">Creators</a>-<a class="indexterm" href="#creators">Creators</a>, <a class="indexterm" href="#property-i">«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">Creators</a>-<a class="indexterm" href="#creators">Creators</a>, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«Mere Copyists»</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#collectors">Collectors</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#eldred">Eldred</a>-<a class="indexterm" href="#eldred">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">Recorders</a>-<a class="indexterm" href="#recorders">Recorders</a></dt><dt>Donaldson v. Beckett, <a class="indexterm" href="#founders">Founders</a>-<a class="indexterm" href="#founders">Founders</a></dt><dt>Donaldson, Alexander, <a class="indexterm" href="#founders">Founders</a>-<a class="indexterm" href="#founders">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">Creators</a>-<a class="indexterm" href="#creators">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="#idp7026672">«PIRACY»</a></dt><dt>driving speed, constraints on, <a class="indexterm" href="#property-i">«Property»</a>-<a class="indexterm" href="#property-i">«Property»</a></dt><dt>Drucker, Peter, <a class="indexterm" href="#transformers">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">Founders</a></dt><dt>Duck and Cover film, <a class="indexterm" href="#collectors">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">«Mere Copyists»</a></dt><dt>Eagle Forum, <a class="indexterm" href="#eldred">Eldred</a></dt><dt>Eastman, George, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«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">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«Mere Copyists»</a></dt><dt>tinkering as means of, <a class="indexterm" href="#catalogs">Catalogs</a></dt></dl></dd><dt>Eldred, Eric, <a class="indexterm" href="#eldred">Eldred</a>-<a class="indexterm" href="#eldred">Eldred</a></dt><dt>elections, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«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">Recorders</a>-<a class="indexterm" href="#recorders">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">Founders</a>-<a class="indexterm" href="#founders">Founders</a></dt><dt>Enlightenment, <a class="indexterm" href="#founders">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">Collectors</a></dt><dt>Errors and Omissions insurance, <a class="indexterm" href="#recorders">Recorders</a></dt><dt>Erskine, Andrew, <a class="indexterm" href="#founders">Founders</a></dt><dt>expression, technologies of</dt><dd><dl><dt>democratic, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a></dt><dt>media literacy and, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«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">Recorders</a>-<a class="indexterm" href="#recorders">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">Recorders</a>-<a class="indexterm" href="#recorders">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">Creators</a>-<a class="indexterm" href="#creators">Creators</a></dt><dt>archive of, <a class="indexterm" href="#collectors">Collectors</a></dt><dt>fair use of copyrighted material in, <a class="indexterm" href="#recorders">Recorders</a>-<a class="indexterm" href="#recorders">Recorders</a></dt><dt>multiple copyrights associated with, <a class="indexterm" href="#recorders">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="#idp7026672">«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">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">Recorders</a>-<a class="indexterm" href="#recorders">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">Creators</a>-<a class="indexterm" href="#creators">Creators</a></dt><dt>English legal establishment of, <a class="indexterm" href="#founders">Founders</a></dt><dt>four modalities of constraint on, <a class="indexterm" href="#property-i">«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">Eldred</a></dt><dt>Friedman, Milton, <a class="indexterm" href="#eldred">Eldred</a></dt><dt>Frost, Robert, <a class="indexterm" href="#eldred">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">Eldred II</a></dt><dt>Gershwin, George, <a class="indexterm" href="#eldred">Eldred</a></dt><dt>Gil, Gilberto, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Ginsburg, Ruth Bader, <a class="indexterm" href="#eldred">Eldred</a>-<a class="indexterm" href="#eldred">Eldred</a></dt><dt>Girl Scouts, <a class="indexterm" href="#idp7026672">«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">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">Catalogs</a>-<a class="indexterm" href="#catalogs">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">Recorders</a>-<a class="indexterm" href="#recorders">Recorders</a></dt><dt>Grimm fairy tales, <a class="indexterm" href="#creators">Creators</a>-<a class="indexterm" href="#creators">Creators</a>, <a class="indexterm" href="#eldred">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">Recorders</a>-<a class="indexterm" href="#recorders">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">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">Eldred</a>-<a class="indexterm" href="#eldred">Eldred</a></dt><dt>Henry V, <a class="indexterm" href="#founders">Founders</a></dt><dt>Henry VIII, King of England, <a class="indexterm" href="#founders">Founders</a></dt><dt>Herrera, Rebecca, <a class="indexterm" href="#recorders">Recorders</a>-<a class="indexterm" href="#recorders">Recorders</a></dt><dt>Heston, Charlton, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>history, records of, <a class="indexterm" href="#collectors">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">Founders</a>-<a class="indexterm" href="#founders">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="#idp7026672">«PIRACY»</a>-<a class="indexterm" href="#idp7026672">«PIRACY»</a>, <a class="indexterm" href="#pirates">«Pirates»</a></dt><dt>images, ownership of, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«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">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">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«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="#idp7026672">«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">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«Mere Copyists»</a></dt><dt>peer-generated rankings on, <a class="indexterm" href="#mere-copyists">«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">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«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">Catalogs</a>-<a class="indexterm" href="#catalogs">Catalogs</a></dt></dl></dd><dt>Internet Archive, <a class="indexterm" href="#collectors">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">«Mere Copyists»</a>, <a class="indexterm" href="#collectors">Collectors</a></dt><dt>ISPs (Internet service providers), user identities revealed by, <a class="indexterm" href="#chimera">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">Creators</a></dt></dl></div><div class="indexdiv"><h3>J</h3><dl><dt>Japanese comics, <a class="indexterm" href="#creators">Creators</a>-<a class="indexterm" href="#creators">Creators</a></dt><dt>Jaszi, Peter, <a class="indexterm" href="#eldred">Eldred</a></dt><dt>Jefferson, Thomas, <a class="indexterm" href="#idp7982304">«PROPERTY»</a>, <a class="indexterm" href="#property-i">«Property»</a>-<a class="indexterm" href="#property-i">«Property»</a>, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Johnson, Lyndon, <a class="indexterm" href="#property-i">«Property»</a></dt><dt>Johnson, Samuel, <a class="indexterm" href="#founders">Founders</a></dt><dt>Jonson, Ben, <a class="indexterm" href="#founders">Founders</a></dt><dt>Jordan, Jesse, <a class="indexterm" href="#catalogs">Catalogs</a>, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>journalism, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«Mere Copyists»</a></dt><dt>jury system, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a></dt><dt>Just Think!, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«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">Creators</a>-<a class="indexterm" href="#creators">Creators</a></dt><dt>Kelly, Kevin, <a class="indexterm" href="#eldred-ii">Eldred II</a></dt><dt>Kennedy, John F., <a class="indexterm" href="#property-i">«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">Founders</a></dt><dt>Kodak cameras, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«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">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«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">Eldred</a></dt><dt>law</dt><dd><dl><dt>as constraint modality, <a class="indexterm" href="#property-i">«Property»</a>-<a class="indexterm" href="#property-i">«Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>common vs. positive, <a class="indexterm" href="#founders">Founders</a>-<a class="indexterm" href="#founders">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">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">Eldred</a>-<a class="indexterm" href="#eldred">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">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">Eldred</a>-<a class="indexterm" href="#eldred">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">Collectors</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Licensing Act (1662), <a class="indexterm" href="#founders">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">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">Eldred II</a></dt><dt>Lott, Trent, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a></dt><dt>Lovett, Lyle, <a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#chimera">Chimera</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#eldred-ii">Eldred II</a></dt><dt>Lucas, George, <a class="indexterm" href="#recorders">Recorders</a></dt><dt>Lucky Dog, The, <a class="indexterm" href="#eldred">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">«Property»</a></dt><dt>manga, <a class="indexterm" href="#creators">Creators</a>-<a class="indexterm" href="#creators">Creators</a></dt><dt>Mansfield, William Murray, Lord, <a class="indexterm" href="#idp7026672">«PIRACY»</a>-<a class="indexterm" href="#idp7026672">«PIRACY»</a>, <a class="indexterm" href="#founders">Founders</a>-<a class="indexterm" href="#founders">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">«Property»</a>-<a class="indexterm" href="#property-i">«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">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«Mere Copyists»</a></dt><dt>commercial imperatives of, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«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">«Mere Copyists»</a></dt></dl></dd><dt>media literacy, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«Mere Copyists»</a></dt><dt>Mehra, Salil, <a class="indexterm" href="#creators">Creators</a>-<a class="indexterm" href="#creators">Creators</a></dt><dt>MGM, <a class="indexterm" href="#property-i">«Property»</a></dt><dt>Michigan Technical University, <a class="indexterm" href="#catalogs">Catalogs</a></dt><dt>Mickey Mouse, <a class="indexterm" href="#creators">Creators</a>-<a class="indexterm" href="#creators">Creators</a>, <a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>Microsoft, <a class="indexterm" href="#transformers">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">Catalogs</a>-<a class="indexterm" href="#catalogs">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">Founders</a>-<a class="indexterm" href="#founders">Founders</a></dt><dt>Milton, John, <a class="indexterm" href="#founders">Founders</a></dt><dt>monopoly, copyright as, <a class="indexterm" href="#founders">Founders</a>-<a class="indexterm" href="#founders">Founders</a></dt><dt>Morrison, Alan, <a class="indexterm" href="#eldred">Eldred</a></dt><dt>Movie Archive, <a class="indexterm" href="#collectors">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="#idp7026672">«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">«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">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">Eldred</a></dt><dt>National Writers Union, <a class="indexterm" href="#eldred">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">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">Eldred</a></dt><dt>news coverage, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«Mere Copyists»</a>, <a class="indexterm" href="#collectors">Collectors</a>-<a class="indexterm" href="#collectors">Collectors</a></dt><dt>newspapers</dt><dd><dl><dt>archives of, <a class="indexterm" href="#collectors">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">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">Transformers</a></dt><dt>No Electronic Theft (NET) Act (1998), <a class="indexterm" href="#eldred">Eldred</a></dt><dt>norms, regulatory influence of, <a class="indexterm" href="#property-i">«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">Eldred</a></dt><dt>Olafson, Steve, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a></dt><dt>Olson, Theodore B., <a class="indexterm" href="#eldred">Eldred</a></dt><dt>Oppenheimer, Matt, <a class="indexterm" href="#catalogs">Catalogs</a></dt><dt>originalism, <a class="indexterm" href="#eldred">Eldred</a></dt><dt>Orwell, George, <a class="indexterm" href="#collectors">Collectors</a>-<a class="indexterm" href="#collectors">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">«Property»</a></dt><dt>patents</dt><dd><dl><dt>future patents vs. future copyrights in, <a class="indexterm" href="#eldred">Eldred</a>-<a class="indexterm" href="#eldred">Eldred</a></dt><dt>in public domain, <a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">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">Founders</a></dt><dt>peer-to-peer (p2p) file sharing</dt><dd><dl><dt>efficiency of, <a class="indexterm" href="#idp7026672">«PIRACY»</a>-<a class="indexterm" href="#idp7026672">«PIRACY»</a></dt><dt>felony punishments for, <a class="indexterm" href="#eldred">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">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«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">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«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">Creators</a>-<a class="indexterm" href="#creators">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">«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">«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">Eldred</a></dt><dt>pornography, <a class="indexterm" href="#eldred">Eldred</a></dt><dt>positive law, <a class="indexterm" href="#founders">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">Collectors</a></dt><dt>Princeton University, <a class="indexterm" href="#catalogs">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">Eldred</a>-<a class="indexterm" href="#eldred">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="#idp7982304">«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">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">Creators</a>-<a class="indexterm" href="#creators">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">Founders</a>-<a class="indexterm" href="#founders">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">Eldred</a>-<a class="indexterm" href="#eldred">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">Creators</a>-<a class="indexterm" href="#creators">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">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">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">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">Catalogs</a>-<a class="indexterm" href="#catalogs">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">Catalogs</a>-<a class="indexterm" href="#catalogs">Catalogs</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>intimidation tactics of, <a class="indexterm" href="#catalogs">Catalogs</a>-<a class="indexterm" href="#catalogs">Catalogs</a></dt><dt>lobbying power of, <a class="indexterm" href="#catalogs">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">«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">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">Catalogs</a>-<a class="indexterm" href="#catalogs">Catalogs</a></dt><dd><dl><dt>computer network search engine of, <a class="indexterm" href="#catalogs">Catalogs</a>-<a class="indexterm" href="#catalogs">Catalogs</a></dt></dl></dd><dt>Rise of the Creative Class, The (Florida), <a class="indexterm" href="#idp7026672">«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">Founders</a>-<a class="indexterm" href="#founders">Founders</a></dt><dt>Rose, Mark, <a class="indexterm" href="#founders">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">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">Eldred</a></dt><dt>Schlafly, Phyllis, <a class="indexterm" href="#eldred">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">Founders</a></dt><dt>search engines, <a class="indexterm" href="#catalogs">Catalogs</a>-<a class="indexterm" href="#catalogs">Catalogs</a></dt><dt>Seasons, The (Thomson), <a class="indexterm" href="#founders">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">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«Mere Copyists»</a>, <a class="indexterm" href="#collectors">Collectors</a></dt><dt>Shakespeare, William, <a class="indexterm" href="#creators">Creators</a>, <a class="indexterm" href="#founders">Founders</a></dt><dt>sheet music, <a class="indexterm" href="#idp7026672">«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">Recorders</a>-<a class="indexterm" href="#recorders">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">Eldred</a>-<a class="indexterm" href="#eldred">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">«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">«Property»</a>-<a class="indexterm" href="#property-i">«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">Recorders</a></dt><dt>Statute of Anne (1710), <a class="indexterm" href="#founders">Founders</a>, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>Statute of Monopolies (1656), <a class="indexterm" href="#founders">Founders</a></dt><dt>statutory damages, <a class="indexterm" href="#catalogs">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">Creators</a>-<a class="indexterm" href="#creators">Creators</a>, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a></dt><dt>Steamboat Willie, <a class="indexterm" href="#creators">Creators</a>-<a class="indexterm" href="#creators">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">Eldred</a></dt><dt>Superman comics, <a class="indexterm" href="#creators">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">Founders</a>-<a class="indexterm" href="#founders">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">Transformers</a></dt></dl></div><div class="indexdiv"><h3>T</h3><dl><dt>Talbot, William, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a></dt><dt>Tatel, David, <a class="indexterm" href="#eldred">Eldred</a></dt><dt>Tauzin, Billy, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Taylor, Robert, <a class="indexterm" href="#founders">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">«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">Collectors</a></dt><dt>Thomson, James, <a class="indexterm" href="#founders">Founders</a>-<a class="indexterm" href="#founders">Founders</a></dt><dt>Thurmond, Strom, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a></dt><dt>Tocqueville, Alexis de, <a class="indexterm" href="#mere-copyists">«Mere Copyists»</a></dt><dt>Tonson, Jacob, <a class="indexterm" href="#founders">Founders</a>-<a class="indexterm" href="#founders">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">«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">Founders</a>-<a class="indexterm" href="#founders">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">«Property»</a></dt><dt>university computer networks, p2p sharing on, <a class="indexterm" href="#catalogs">Catalogs</a>-<a class="indexterm" href="#catalogs">Catalogs</a></dt></dl></div><div class="indexdiv"><h3>V</h3><dl><dt>Vaidhyanathan, Siva, <a class="indexterm" href="#creators">Creators</a>, <a class="indexterm" href="#film">Film</a>, <a class="indexterm" href="#founders">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">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">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">Recorders</a>-<a class="indexterm" href="#recorders">Recorders</a></dt><dt>Warner Brothers, <a class="indexterm" href="#property-i">«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">«Mere Copyists»</a></dt><dt>Way Back Machine, <a class="indexterm" href="#collectors">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">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«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">Chimera</a>-<a class="indexterm" href="#chimera">Chimera</a></dt><dt>White House press releases, <a class="indexterm" href="#collectors">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">«Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">«Mere Copyists»</a></dt><dt>Winick, Judd, <a class="indexterm" href="#creators">Creators</a>-<a class="indexterm" href="#creators">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">«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">«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="#idp7026672">«PIRACY»</a>, <a class="indexterm" href="#lawscope">Law: Scope</a></dt></dl></div></div></div><div class="colophon"><h1 class="title"><a name="idp10779712"></a>Colophon</h1><p>
12195 Free culture: How big media uses technology and the law to lock down
12196 culture and control creativity / Lawrence Lessig.
12197 </p><p>
12198 Copyright © Lawrence Lessig.  Some rights reserved.
12199 </p><p>
12200 This version of <em class="citetitle">Free Culture</em> is licensed under
12201 a Creative Commons license. This license permits non-commercial use of
12202 this work, so long as attribution is given.  For more information
12203 about the license visit
12204 <a class="ulink" href="http://creativecommons.org/licenses/by-nc/1.0/" target="_top">http://creativecommons.org/licenses/by-nc/1.0/</a>
12205 </p><p>
12206 This digital book was published by Petter Reinholdtsen in 2015.  The
12207 original hardcover paper book was published in 2004 by The Penguin
12208 Press.
12209 </p><p>
12210 Excerpt from an editorial titled <span class="quote">«<span class="quote">The Coming of Copyright
12211 Perpetuity,</span>»</span> <em class="citetitle">The New York Times</em>, January
12212 16, 2003. Copyright © 2003 by The New York Times Co.  Reprinted
12213 with permission.
12214 </p><p>
12215 Cartoon in <a class="xref" href="#fig-1711-vcr-handgun-cartoonfig" title="Figure 10.18. VCR/handgun cartoon.">Figure 10.18, &#8220;VCR/handgun cartoon.&#8221;</a> by Paul
12216 Conrad, copyright Tribune Media Services, Inc.  All rights
12217 reserved. Reprinted with permission.
12218 </p><p>
12219 Diagram in <a class="xref" href="#fig-1761-pattern-modern-media-ownership" title="Figure 10.19. Pattern of modern media ownership.">Figure 10.19, &#8220;Pattern of modern media ownership.&#8221;</a>
12220 courtesy of the office of FCC Commissioner, Michael J. Copps.
12221 </p><p>
12222 The source of this version of the book is written using DocBook
12223 notation and the other formats are derived from the DocBook source.
12224 The DocBook source is based on a DocBook XML version created by Hans
12225 Schou, and extended by Petter Reinholdtsen with formatting and index
12226 references.  The source files for this book are available from
12227 <a class="ulink" href="https://github.com/petterreinholdtsen/free-culture-lessig" target="_top">https://github.com/petterreinholdtsen/free-culture-lessig</a>.
12228 </p><p>
12229
12230 </p><p>
12231 Includes index.
12232 </p><p>
12233 Classifications: (Dewey)
12234 306.4
12235 306.40973
12236 306.46
12237 341.7582
12238 343.7309/9,
12239 (UDK) 347.78
12240 (US Lib. of Congress) KF2979.L47 2004
12241 (ACM CRCS) K.4.1
12242 </p><p>
12243 </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">978-82-92812-XX-Y</td><td align="left">text/plain</td></tr><tr><td align="left">978-82-92812-XX-Y</td><td align="left">application/pdf</td></tr><tr><td align="left">978-82-92812-XX-Y</td><td align="left">text/html</td></tr><tr><td align="left">978-82-92812-XX-Y</td><td align="left">application/epub+zip</td></tr><tr><td align="left">978-82-92812-XX-Y</td><td align="left">application/docbook+xml</td></tr><tr><td align="left">978-82-92812-XX-Y</td><td align="left">application/x-mobipocket-ebook</td></tr></tbody></table></div><p>
12244 </p></div></div></body></html>