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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 Roy L. Furman Professor of Law and Leadership at Harvard 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="idp36000960"></a><p>
   3      <span class="inlinemediaobject"><img src="images/cc.png" align="middle" height="38" alt="Creative Commons, Some rights reserved"></span>
   4    </p><p>
   5 This book is licensed under a Creative Commons license. This license
   6 permits non-commercial use of this work, so long as attribution is
   7 given.  For more information about the license visit
   8 <a class="ulink" href="http://creativecommons.org/licenses/by-nc/1.0/" target="_top">http://creativecommons.org/licenses/by-nc/1.0/</a>.
   9    </p></div></div><div><p class="pubdate">2015-09-04</p></div><div><div class="abstract"><p class="title"><b>About the author</b></p><p>
  10 Lawrence Lessig
  11 (<a class="ulink" href="http://www.lessig.org" target="_top">http://www.lessig.org</a>),
  12 professor of law and a Roy L. Furman Professor of Law and Leadership
  13 at Harvard Law School, is founder of the Stanford Center for Internet
  14 and Society and is chairman of the Creative Commons
  15 (<a class="ulink" href="http://creativecommons.org" target="_top">http://creativecommons.org</a>).
  16 The author of The Future of Ideas (Random House, 2001) and Code: And
  17 Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of
  18 the boards of the Public Library of Science, the Electronic Frontier
  19 Foundation, and Public Knowledge. He was the winner of the Free
  20 Software Foundation's Award for the Advancement of Free Software,
  21 twice listed in BusinessWeek's <span class="quote">«<span class="quote">e.biz 25,</span>»</span> and named one
  22 of Scientific American's <span class="quote">«<span class="quote">50 visionaries.</span>»</span> A graduate of
  23 the University of Pennsylvania, Cambridge University, and Yale Law
  24 School, Lessig clerked for Judge Richard Posner of the U.S. Seventh
  25 Circuit Court of Appeals.
  26   </p></div></div></div><hr></div><div class="dedication"><p>
  27 To Eric Eldred &#8212; whose work first drew me to this cause, and for whom
  28 it continues still.
  29 </p></div><hr><div class="toc"><dl class="toc"><dt><span class="bibliography"><a href="#alsobylessig">
  30 Also by Lawrence Lessig
  31   </a></span></dt><dt><span class="preface"><a href="#preface">Preface</a></span></dt><dt><span class="chapter"><a href="#c-introduction">Introduction</a></span></dt><dt><span class="part">I. <a href="#c-piracy"><span class="quote">«<span class="quote">Piracy</span>»</span></a></span></dt><dd><dl><dt><span class="chapter">1. <a href="#creators">Chapter One: Creators</a></span></dt><dt><span class="chapter">2. <a href="#mere-copyists">Chapter Two: <span class="quote">«<span class="quote">Mere Copyists</span>»</span></a></span></dt><dt><span class="chapter">3. <a href="#catalogs">Chapter Three: Catalogs</a></span></dt><dt><span class="chapter">4. <a href="#pirates">Chapter Four: <span class="quote">«<span class="quote">Pirates</span>»</span></a></span></dt><dd><dl><dt><span class="section">4.1. <a href="#film">Film</a></span></dt><dt><span class="section">4.2. <a href="#recordedmusic">Recorded Music</a></span></dt><dt><span class="section">4.3. <a href="#radio">Radio</a></span></dt><dt><span class="section">4.4. <a href="#cabletv">Cable TV</a></span></dt></dl></dd><dt><span class="chapter">5. <a href="#piracy">Chapter Five: <span class="quote">«<span class="quote">Piracy</span>»</span></a></span></dt><dd><dl><dt><span class="section">5.1. <a href="#piracy-i">Piracy I</a></span></dt><dt><span class="section">5.2. <a href="#piracy-ii">Piracy II</a></span></dt></dl></dd></dl></dd><dt><span class="part">II. <a href="#c-property"><span class="quote">«<span class="quote">Property</span>»</span></a></span></dt><dd><dl><dt><span class="chapter">6. <a href="#founders">Chapter Six: Founders</a></span></dt><dt><span class="chapter">7. <a href="#recorders">Chapter Seven: Recorders</a></span></dt><dt><span class="chapter">8. <a href="#transformers">Chapter Eight: Transformers</a></span></dt><dt><span class="chapter">9. <a href="#collectors">Chapter Nine: Collectors</a></span></dt><dt><span class="chapter">10. <a href="#property-i">Chapter Ten: <span class="quote">«<span class="quote">Property</span>»</span></a></span></dt><dd><dl><dt><span class="section">10.1. <a href="#hollywood">Why Hollywood Is Right</a></span></dt><dt><span class="section">10.2. <a href="#beginnings">Beginnings</a></span></dt><dt><span class="section">10.3. <a href="#lawduration">Law: Duration</a></span></dt><dt><span class="section">10.4. <a href="#lawscope">Law: Scope</a></span></dt><dt><span class="section">10.5. <a href="#lawreach">Law and Architecture: Reach</a></span></dt><dt><span class="section">10.6. <a href="#lawforce">Architecture and Law: Force</a></span></dt><dt><span class="section">10.7. <a href="#marketconcentration">Market: Concentration</a></span></dt><dt><span class="section">10.8. <a href="#together">Together</a></span></dt></dl></dd></dl></dd><dt><span class="part">III. <a href="#c-puzzles">Puzzles</a></span></dt><dd><dl><dt><span class="chapter">11. <a href="#chimera">Chapter Eleven: Chimera</a></span></dt><dt><span class="chapter">12. <a href="#harms">Chapter Twelve: Harms</a></span></dt><dd><dl><dt><span class="section">12.1. <a href="#constrain">Constraining Creators</a></span></dt><dt><span class="section">12.2. <a href="#innovators">Constraining Innovators</a></span></dt><dt><span class="section">12.3. <a href="#corruptingcitizens">Corrupting Citizens</a></span></dt></dl></dd></dl></dd><dt><span class="part">IV. <a href="#c-balances">Balances</a></span></dt><dd><dl><dt><span class="chapter">13. <a href="#eldred">Chapter Thirteen: Eldred</a></span></dt><dt><span class="chapter">14. <a href="#eldred-ii">Chapter Fourteen: Eldred II</a></span></dt></dl></dd><dt><span class="chapter"><a href="#c-conclusion">Conclusion</a></span></dt><dt><span class="chapter"><a href="#c-afterword">Afterword</a></span></dt><dd><dl><dt><span class="section">1. <a href="#usnow">Us, now</a></span></dt><dd><dl><dt><span class="section">1.1. <a href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></span></dt><dt><span class="section">1.2. <a href="#oneidea">Rebuilding Free Culture: One Idea</a></span></dt></dl></dd><dt><span class="section">2. <a href="#themsoon">Them, soon</a></span></dt><dd><dl><dt><span class="section">2.1. <a href="#formalities">1. More Formalities</a></span></dt><dd><dl><dt><span class="section">2.1.1. <a href="#registration">Registration and renewal</a></span></dt><dt><span class="section">2.1.2. <a href="#marking">Marking</a></span></dt></dl></dd><dt><span class="section">2.2. <a href="#shortterms">2. Shorter Terms</a></span></dt><dt><span class="section">2.3. <a href="#freefairuse">3. Free Use Vs. Fair Use</a></span></dt><dt><span class="section">2.4. <a href="#liberatemusic">4. Liberate the Music&#8212;Again</a></span></dt><dt><span class="section">2.5. <a href="#firelawyers">5. Fire Lots of Lawyers</a></span></dt></dl></dd></dl></dd><dt><span class="chapter"><a href="#c-notes">Notes</a></span></dt><dd><dl><dt><span class="index"><a href="#idp42796480">Index</a></span></dt></dl></dd><dt><span class="chapter"><a href="#c-acknowledgments">Acknowledgments</a></span></dt><dt><span class="chapter"><a href="#c-about-this-edition">About this edition</a></span></dt><dt><span class="index"><a href="#idp42815216">Index</a></span></dt></dl></div><div class="bibliography"><div class="titlepage"><div><div><h1 class="title"><a name="alsobylessig"></a>
  32 Also by Lawrence Lessig
  33   </h1></div></div></div><div class="biblioentry"><a name="idp37875456"></a><p><span class="title"><i>The USA is lesterland: The nature of congressional corruption</i>. </span><span class="pubdate">2014. </span></p></div><div class="biblioentry"><a name="idp37876928"></a><p><span class="title"><i>Republic, lost: How money corrupts Congress - and a plan to stop it</i>. </span><span class="pubdate">2011. </span></p></div><div class="biblioentry"><a name="idp37878384"></a><p><span class="title"><i>Remix: Making art and commerce thrive in the hybrid economy</i>. </span><span class="pubdate">2008. </span></p></div><div class="biblioentry"><a name="idp37879840"></a><p><span class="title"><i>Code: Version 2.0</i>. </span><span class="pubdate">2006. </span></p></div><div class="biblioentry"><a name="idp37881328"></a><p><span class="title"><i>The Future of Ideas: The Fate of the Commons in a Connected World</i>. </span><span class="pubdate">2001. </span></p></div><div class="biblioentry"><a name="idp37882784"></a><p><span class="title"><i>Code: And Other Laws of Cyberspace</i>. </span><span class="pubdate">1999. </span></p></div></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><a class="indexterm" name="idp33193216"></a><p>
  34 <span class="bold"><strong>At the end</strong></span> of his review of my first
  35 book, <em class="citetitle">Code: And Other Laws of Cyberspace</em>, David
  36 Pogue, a brilliant writer and author of countless technical and
  37 computer-related texts, wrote this:
  38 </p><div class="blockquote"><blockquote class="blockquote"><p>
  39 Unlike actual law, Internet software has no capacity to punish. It
  40 doesn't affect people who aren't online (and only a tiny minority
  41 of the world population is). And if you don't like the Internet's
  42 system, you can always flip off the modem.<a href="#ftn.preface01" class="footnote" name="preface01"><sup class="footnote">[1]</sup></a>
  43 </p></blockquote></div><p>
  44 Pogue was skeptical of the core argument of the book&#8212;that
  45 software, or <span class="quote">«<span class="quote">code,</span>»</span> functioned as a kind of law&#8212;and his review
  46 suggested the happy thought that if life in cyberspace got bad, we
  47 could always <span class="quote">«<span class="quote">drizzle, drazzle, druzzle, drome</span>»</span>-like simply flip a
  48 switch and be back home. Turn off the modem, unplug the computer, and
  49 any troubles that exist in <span class="emphasis"><em>that</em></span> space wouldn't
  50 <span class="quote">«<span class="quote">affect</span>»</span> us anymore.
  51 </p><p>
  52 Pogue might have been right in 1999&#8212;I'm skeptical, but maybe.
  53 But even if he was right then, the point is not right now:
  54 <em class="citetitle">Free Culture</em> is about the troubles the Internet
  55 causes even after the modem is turned
  56
  57 off. It is an argument about how the battles that now rage regarding life
  58 on-line have fundamentally affected <span class="quote">«<span class="quote">people who aren't online.</span>»</span> There
  59 is no switch that will insulate us from the Internet's effect.
  60 </p><a class="indexterm" name="idp33202688"></a><p>
  61 But unlike <em class="citetitle">Code</em>, the argument here is not much
  62 about the Internet itself. It is instead about the consequence of the
  63 Internet to a part of our tradition that is much more fundamental,
  64 and, as hard as this is for a geek-wanna-be to admit, much more
  65 important.
  66 </p><p>
  67 That tradition is the way our culture gets made. As I explain in the
  68 pages that follow, we come from a tradition of <span class="quote">«<span class="quote">free culture</span>»</span>&#8212;not
  69 <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
  70 free software movement<a href="#ftn.idp38704880" class="footnote" name="idp38704880"><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>
  71 <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
  72 free culture supports and protects creators and innovators. It does
  73 this directly by granting intellectual property rights. But it does so
  74 indirectly by limiting the reach of those rights, to guarantee that
  75 follow-on creators and innovators remain <span class="emphasis"><em>as free as
  76 possible</em></span> from the control of the past. A free culture is
  77 not a culture without property, just as a free market is not a market
  78 in which everything is free. The opposite of a free culture is a
  79 <span class="quote">«<span class="quote">permission culture</span>»</span>&#8212;a culture in which creators get to create
  80 only with the permission of the powerful, or of creators from the
  81 past.
  82 </p><p>
  83 If we understood this change, I believe we would resist it. Not <span class="quote">«<span class="quote">we</span>»</span>
  84 on the Left or <span class="quote">«<span class="quote">you</span>»</span> on the Right, but we who have no stake in the
  85 particular industries of culture that defined the twentieth century.
  86 Whether you are on the Left or the Right, if you are in this sense
  87 disinterested, then the story I tell here will trouble you. For the
  88 changes I describe affect values that both sides of our political
  89 culture deem fundamental.
  90 </p><a class="indexterm" name="idxpowerconcentrationof"></a><a class="indexterm" name="idp33101056"></a><a class="indexterm" name="idp33101872"></a><a class="indexterm" name="idp33102688"></a><p>
  91 We saw a glimpse of this bipartisan outrage in the early summer of
  92 2003. As the FCC considered changes in media ownership rules that
  93 would relax limits on media concentration, an extraordinary coalition
  94 generated more than 700,000 letters to the FCC opposing the change.
  95 As William Safire described marching <span class="quote">«<span class="quote">uncomfortably alongside CodePink
  96 Women for Peace and the National Rifle Association, between liberal
  97 Olympia Snowe and conservative Ted Stevens,</span>»</span> he formulated perhaps
  98 most simply just what was at stake: the concentration of power. And as
  99 he asked,
 100 </p><div class="blockquote"><blockquote class="blockquote"><p>
 101 Does that sound unconservative? Not to me. The concentration of
 102 power&#8212;political, corporate, media, cultural&#8212;should be anathema to
 103 conservatives. The diffusion of power through local control, thereby
 104 encouraging individual participation, is the essence of federalism and
 105 the greatest expression of democracy.<a href="#ftn.idp33105472" class="footnote" name="idp33105472"><sup class="footnote">[3]</sup></a>
 106 </p></blockquote></div><p>
 107 This idea is an element of the argument of <em class="citetitle">Free Culture</em>, though my
 108 focus is not just on the concentration of power produced by
 109 concentrations in ownership, but more importantly, if because less
 110 visibly, on the concentration of power produced by a radical change in
 111 the effective scope of the law. The law is changing; that change is
 112 altering the way our culture gets made; that change should worry
 113 you&#8212;whether or not you care about the Internet, and whether you're on
 114 Safire's left or on his right.
 115 </p><a class="indexterm" name="idp38729024"></a><p>
 116 <span class="strong"><strong>The inspiration</strong></span> for the title and for
 117 much of the argument of this book comes from the work of Richard
 118 Stallman and the Free Software Foundation. Indeed, as I reread
 119 Stallman's own work, especially the essays in <em class="citetitle">Free Software, Free
 120 Society</em>, I realize that all of the theoretical insights I develop here
 121 are insights Stallman described decades ago. One could thus well argue
 122 that this work is <span class="quote">«<span class="quote">merely</span>»</span> derivative.
 123 </p><p>
 124 I accept that criticism, if indeed it is a criticism. The work of a
 125 lawyer is always derivative, and I mean to do nothing more in this
 126 book than to remind a culture about a tradition that has always been
 127 its own.  Like Stallman, I defend that tradition on the basis of
 128 values. Like Stallman, I believe those are the values of freedom. And
 129 like Stallman, I believe those are values of our past that will need
 130 to be defended in our future. A free culture has been our past, but it
 131 will only be our future if we change the path we are on right now.
 132
 133
 134 Like Stallman's arguments for free software, an argument for free
 135 culture stumbles on a confusion that is hard to avoid, and even harder
 136 to understand. A free culture is not a culture without property; it is not
 137 a culture in which artists don't get paid. A culture without property, or
 138 in which creators can't get paid, is anarchy, not freedom. Anarchy is not
 139 what I advance here.
 140 </p><p>
 141 Instead, the free culture that I defend in this book is a balance
 142 between anarchy and control. A free culture, like a free market, is
 143 filled with property. It is filled with rules of property and contract
 144 that get enforced by the state. But just as a free market is perverted
 145 if its property becomes feudal, so too can a free culture be queered
 146 by extremism in the property rights that define it. That is what I
 147 fear about our culture today. It is against that extremism that this
 148 book is written.
 149 </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>
 150 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.
 151 </p></div><div id="ftn.idp38704880" class="footnote"><p><a href="#idp38704880" class="para"><sup class="para">[2] </sup></a>
 152 Richard M. Stallman, <em class="citetitle">Free Software, Free Societies</em> 57 (Joshua Gay, ed. 2002).
 153 </p></div><div id="ftn.idp33105472" class="footnote"><p><a href="#idp33105472" class="para"><sup class="para">[3] </sup></a> William Safire,
 154 <span class="quote">«<span class="quote">The Great Media Gulp,</span>»</span> <em class="citetitle">New York Times</em>, 22 May 2003.
 155 <a class="indexterm" name="idp33107088"></a>
 156 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-introduction"></a>Chapter . Introduction</h1></div></div></div><a class="indexterm" name="idxwrightbrothers"></a><p>
 157 <span class="strong"><strong>On December 17</strong></span>, 1903, on a windy North Carolina beach for just
 158 shy of one hundred seconds, the Wright brothers demonstrated that a
 159 heavier-than-air, self-propelled vehicle could fly. The moment was electric
 160 and its importance widely understood. Almost immediately, there
 161 was an explosion of interest in this newfound technology of manned
 162 flight, and a gaggle of innovators began to build upon it.
 163 </p><a class="indexterm" name="idxairtrafficlandownershipvs"></a><a class="indexterm" name="idxlandownershipairtrafficand"></a><a class="indexterm" name="idxpropertyrightsairtrafficvs"></a><p>
 164 At the time the Wright brothers invented the airplane, American
 165 law held that a property owner presumptively owned not just the surface
 166 of his land, but all the land below, down to the center of the earth,
 167 and all the space above, to <span class="quote">«<span class="quote">an indefinite extent, upwards.</span>»</span><a href="#ftn.idp38744368" class="footnote" name="idp38744368"><sup class="footnote">[4]</sup></a>
 168 For many
 169 years, scholars had puzzled about how best to interpret the idea that
 170 rights in land ran to the heavens. Did that mean that you owned the
 171 stars? Could you prosecute geese for their willful and regular trespass?
 172 </p><a class="indexterm" name="idp38745632"></a><p>
 173 Then came airplanes, and for the first time, this principle of American
 174 law&#8212;deep within the foundations of our tradition, and acknowledged
 175 by the most important legal thinkers of our past&#8212;mattered. If
 176 my land reaches to the heavens, what happens when United flies over
 177 my field? Do I have the right to banish it from my property? Am I allowed
 178 to enter into an exclusive license with Delta Airlines? Could we
 179 set up an auction to decide how much these rights are worth?
 180 </p><a class="indexterm" name="idp38747584"></a><a class="indexterm" name="idp38748336"></a><p>
 181 In 1945, these questions became a federal case. When North Carolina
 182 farmers Thomas Lee and Tinie Causby started losing chickens
 183 because of low-flying military aircraft (the terrified chickens apparently
 184 flew into the barn walls and died), the Causbys filed a lawsuit saying
 185 that the government was trespassing on their land. The airplanes,
 186 of course, never touched the surface of the Causbys' land. But if, as
 187 Blackstone, Kent, and Coke had said, their land reached to <span class="quote">«<span class="quote">an indefinite
 188 extent, upwards,</span>»</span> then the government was trespassing on their
 189 property, and the Causbys wanted it to stop.
 190 </p><a class="indexterm" name="idp38750448"></a><a class="indexterm" name="idp38751200"></a><a class="indexterm" name="idxdouglaswilliamo"></a><a class="indexterm" name="idxsupremecourtusonairspacevslandrights"></a><p>
 191 The Supreme Court agreed to hear the Causbys' case. Congress had
 192 declared the airways public, but if one's property really extended to the
 193 heavens, then Congress's declaration could well have been an unconstitutional
 194 <span class="quote">«<span class="quote">taking</span>»</span> of property without compensation. The Court acknowledged
 195 that <span class="quote">«<span class="quote">it is ancient doctrine that common law ownership of
 196 the land extended to the periphery of the universe.</span>»</span> But Justice Douglas
 197 had no patience for ancient doctrine. In a single paragraph, hundreds of
 198 years of property law were erased. As he wrote for the Court,
 199 </p><div class="blockquote"><blockquote class="blockquote"><p>
 200 [The] doctrine has no place in the modern world. The air is a
 201 public highway, as Congress has declared. Were that not true,
 202 every transcontinental flight would subject the operator to countless
 203 trespass suits. Common sense revolts at the idea. To recognize
 204 such private claims to the airspace would clog these highways,
 205 seriously interfere with their control and development in the public
 206 interest, and transfer into private ownership that to which only
 207 the public has a just claim.<a href="#ftn.idp38757440" class="footnote" name="idp38757440"><sup class="footnote">[5]</sup></a>
 208 </p></blockquote></div><p>
 209 <span class="quote">«<span class="quote">Common sense revolts at the idea.</span>»</span>
 210 </p><a class="indexterm" name="idp38762800"></a><p>
 211 This is how the law usually works. Not often this abruptly or
 212 impatiently, but eventually, this is how it works. It was Douglas's style not to
 213 dither. Other justices would have blathered on for pages to reach the
 214
 215 conclusion that Douglas holds in a single line: <span class="quote">«<span class="quote">Common sense revolts
 216 at the idea.</span>»</span> But whether it takes pages or a few words, it is the special
 217 genius of a common law system, as ours is, that the law adjusts to the
 218 technologies of the time. And as it adjusts, it changes. Ideas that were
 219 as solid as rock in one age crumble in another.
 220 </p><a class="indexterm" name="idp38765904"></a><a class="indexterm" name="idp38766688"></a><a class="indexterm" name="idp38767504"></a><p>
 221 Or at least, this is how things happen when there's no one powerful
 222 on the other side of the change. The Causbys were just farmers. And
 223 though there were no doubt many like them who were upset by the
 224 growing traffic in the air (though one hopes not many chickens flew
 225 themselves into walls), the Causbys of the world would find it very
 226 hard to unite and stop the idea, and the technology, that the Wright
 227 brothers had birthed. The Wright brothers spat airplanes into the
 228 technological meme pool; the idea then spread like a virus in a chicken
 229 coop; farmers like the Causbys found themselves surrounded by <span class="quote">«<span class="quote">what
 230 seemed reasonable</span>»</span> given the technology that the Wrights had produced.
 231 They could stand on their farms, dead chickens in hand, and
 232 shake their fists at these newfangled technologies all they wanted.
 233 They could call their representatives or even file a lawsuit. But in the
 234 end, the force of what seems <span class="quote">«<span class="quote">obvious</span>»</span> to everyone else&#8212;the power of
 235 <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
 236 allowed to defeat an obvious public gain.
 237 </p><a class="indexterm" name="idp38771392"></a><a class="indexterm" name="idp38772720"></a><a class="indexterm" name="idp38774064"></a><a class="indexterm" name="idp38775040"></a><a class="indexterm" name="idxarmstrongedwinhoward"></a><a class="indexterm" name="idp38777248"></a><a class="indexterm" name="idp38778000"></a><a class="indexterm" name="idp38778752"></a><a class="indexterm" name="idxradiofmspectrumof"></a><p>
 238 <span class="strong"><strong>Edwin Howard Armstrong</strong></span> is one of
 239 America's forgotten inventor geniuses. He came to the great American
 240 inventor scene just after the titans Thomas Edison and Alexander
 241 Graham Bell. But his work in the area of radio technology was perhaps
 242 the most important of any single inventor in the first fifty years of
 243 radio. He was better educated than Michael Faraday, who as a
 244 bookbinder's apprentice had discovered electric induction in 1831. But
 245 he had the same intuition about how the world of radio worked, and on
 246 at least three occasions, Armstrong invented profoundly important
 247 technologies that advanced our understanding of radio.
 248
 249 </p><p>
 250 On the day after Christmas, 1933, four patents were issued to Armstrong
 251 for his most significant invention&#8212;FM radio. Until then, consumer radio
 252 had been amplitude-modulated (AM) radio. The theorists
 253 of the day had said that frequency-modulated (FM) radio could never
 254 work. They were right about FM radio in a narrow band of spectrum.
 255 But Armstrong discovered that frequency-modulated radio in a wide
 256 band of spectrum would deliver an astonishing fidelity of sound, with
 257 much less transmitter power and static.
 258 </p><p>
 259 On November 5, 1935, he demonstrated the technology at a meeting of
 260 the Institute of Radio Engineers at the Empire State Building in New
 261 York City. He tuned his radio dial across a range of AM stations,
 262 until the radio locked on a broadcast that he had arranged from
 263 seventeen miles away. The radio fell totally silent, as if dead, and
 264 then with a clarity no one else in that room had ever heard from an
 265 electrical device, it produced the sound of an announcer's voice:
 266 <span class="quote">«<span class="quote">This is amateur station W2AG at Yonkers, New York, operating on
 267 frequency modulation at two and a half meters.</span>»</span>
 268 </p><p>
 269 The audience was hearing something no one had thought possible:
 270 </p><div class="blockquote"><blockquote class="blockquote"><p>
 271 A glass of water was poured before the microphone in Yonkers; it
 272 sounded like a glass of water being poured. &#8230; A paper was crumpled
 273 and torn; it sounded like paper and not like a crackling forest
 274 fire. &#8230; Sousa marches were played from records and a piano solo
 275 and guitar number were performed. &#8230; The music was projected with a
 276 live-ness rarely if ever heard before from a radio <span class="quote">«<span class="quote">music
 277 box.</span>»</span><a href="#ftn.idp38786592" class="footnote" name="idp38786592"><sup class="footnote">[6]</sup></a>
 278 </p></blockquote></div><a class="indexterm" name="idxrca"></a><a class="indexterm" name="idxmediaownershipconcentrationin"></a><p>
 279 As our own common sense tells us, Armstrong had discovered a vastly
 280 superior radio technology. But at the time of his invention, Armstrong
 281 was working for RCA. RCA was the dominant player in the then dominant
 282 AM radio market. By 1935, there were a thousand radio stations across
 283 the United States, but the stations in large cities were all owned by
 284 a handful of networks.
 285
 286 </p><a class="indexterm" name="idp38792464"></a><p>
 287 RCA's president, David Sarnoff, a friend of Armstrong's, was eager
 288 that Armstrong discover a way to remove static from AM radio. So
 289 Sarnoff was quite excited when Armstrong told him he had a device
 290 that removed static from <span class="quote">«<span class="quote">radio.</span>»</span> But when Armstrong demonstrated
 291 his invention, Sarnoff was not pleased.
 292 </p><div class="blockquote"><blockquote class="blockquote"><p>
 293 I thought Armstrong would invent some kind of a filter to remove
 294 static from our AM radio. I didn't think he'd start a
 295 revolution&#8212; start up a whole damn new industry to compete with
 296 RCA.<a href="#ftn.idp38783264" class="footnote" name="idp38783264"><sup class="footnote">[7]</sup></a>
 297 </p></blockquote></div><a class="indexterm" name="idxfmradio"></a><a class="indexterm" name="idp38798240"></a><p>
 298 Armstrong's invention threatened RCA's AM empire, so the company
 299 launched a campaign to smother FM radio. While FM may have been a
 300 superior technology, Sarnoff was a superior tactician.  As one author
 301 described,
 302 </p><a class="indexterm" name="idxlessinglawrence"></a><div class="blockquote"><blockquote class="blockquote"><p>
 303 The forces for FM, largely engineering, could not overcome the weight
 304 of strategy devised by the sales, patent, and legal offices to subdue
 305 this threat to corporate position. For FM, if allowed to develop
 306 unrestrained, posed &#8230; a complete reordering of radio power
 307 &#8230; and the eventual overthrow of the carefully restricted AM system
 308 on which RCA had grown to power.<a href="#ftn.idp38801808" class="footnote" name="idp38801808"><sup class="footnote">[8]</sup></a>
 309 </p></blockquote></div><a class="indexterm" name="idxfcconfmradio"></a><p>
 310 RCA at first kept the technology in house, insisting that further
 311 tests were needed. When, after two years of testing, Armstrong grew
 312 impatient, RCA began to use its power with the government to stall
 313 FM radio's deployment generally. In 1936, RCA hired the former head
 314 of the FCC and assigned him the task of assuring that the FCC assign
 315 spectrum in a way that would castrate FM&#8212;principally by moving FM
 316 radio to a different band of spectrum. At first, these efforts failed. But
 317 when Armstrong and the nation were distracted by World War II,
 318 RCA's work began to be more successful. Soon after the war ended, the
 319 FCC announced a set of policies that would have one clear effect: FM
 320 radio would be crippled. As Lawrence Lessing described it,
 321 </p><div class="blockquote"><blockquote class="blockquote"><p>
 322 The series of body blows that FM radio received right after the
 323 war, in a series of rulings manipulated through the FCC by the
 324 big radio interests, were almost incredible in their force and
 325 deviousness.<a href="#ftn.idp38806480" class="footnote" name="idp38806480"><sup class="footnote">[9]</sup></a>
 326 </p></blockquote></div><a class="indexterm" name="idp38807248"></a><a class="indexterm" name="idp38808112"></a><p>
 327 To make room in the spectrum for RCA's latest gamble, television,
 328 FM radio users were to be moved to a totally new spectrum band. The
 329 power of FM radio stations was also cut, meaning FM could no longer
 330 be used to beam programs from one part of the country to another.
 331 (This change was strongly supported by AT&amp;T, because the loss of
 332 FM relaying stations would mean radio stations would have to buy
 333 wired links from AT&amp;T.) The spread of FM radio was thus choked, at
 334 least temporarily.
 335 </p><a class="indexterm" name="idp38809888"></a><a class="indexterm" name="idp38810864"></a><p>
 336 Armstrong resisted RCA's efforts. In response, RCA resisted
 337 Armstrong's patents. After incorporating FM technology into the
 338 emerging standard for television, RCA declared the patents
 339 invalid&#8212;baselessly, and almost fifteen years after they were
 340 issued. It thus refused to pay him royalties. For six years, Armstrong
 341 fought an expensive war of litigation to defend the patents. Finally,
 342 just as the patents expired, RCA offered a settlement so low that it
 343 would not even cover Armstrong's lawyers' fees. Defeated, broken, and
 344 now broke, in 1954 Armstrong wrote a short note to his wife and then
 345 stepped out of a thirteenth-story window to his death.
 346 </p><a class="indexterm" name="idp38812096"></a><a class="indexterm" name="idp38813952"></a><a class="indexterm" name="idp38814928"></a><a class="indexterm" name="idp38815680"></a><p>
 347 This is how the law sometimes works. Not often this tragically, and
 348 rarely with heroic drama, but sometimes, this is how it works. From
 349 the beginning, government and government agencies have been subject to
 350 capture. They are more likely captured when a powerful interest is
 351 threatened by either a legal or technical change. That powerful
 352 interest too often exerts its influence within the government to get
 353 the government to protect it. The rhetoric of this protection is of
 354 course always public spirited; the reality is something
 355 different. Ideas that were as solid as rock in one age, but that, left
 356 to themselves, would crumble in
 357
 358 another, are sustained through this subtle corruption of our political
 359 process. RCA had what the Causbys did not: the power to stifle the
 360 effect of technological change.
 361 </p><a class="indexterm" name="idp38817920"></a><a class="indexterm" name="idp38818896"></a><a class="indexterm" name="idxinternetdevelopmentof"></a><p>
 362 <span class="strong"><strong>There's no</strong></span> single inventor of the Internet. Nor is there any good date
 363 upon which to mark its birth. Yet in a very short time, the Internet
 364 has become part of ordinary American life. According to the Pew
 365 Internet and American Life Project, 58 percent of Americans had access
 366 to the Internet in 2002, up from 49 percent two years
 367 before.<a href="#ftn.idp38822576" class="footnote" name="idp38822576"><sup class="footnote">[10]</sup></a>
 368 That number could well exceed two thirds of the nation by the end
 369 of 2004.
 370 </p><p>
 371 As the Internet has been integrated into ordinary life, it has
 372 changed things. Some of these changes are technical&#8212;the Internet has
 373 made communication faster, it has lowered the cost of gathering data,
 374 and so on. These technical changes are not the focus of this book. They
 375 are important. They are not well understood. But they are the sort of
 376 thing that would simply go away if we all just switched the Internet off.
 377 They don't affect people who don't use the Internet, or at least they
 378 don't affect them directly. They are the proper subject of a book about
 379 the Internet. But this is not a book about the Internet.
 380 </p><p>
 381 Instead, this book is about an effect of the Internet beyond the
 382 Internet itself: an effect upon how culture is made. My claim is that
 383 the Internet has induced an important and unrecognized change in that
 384 process. That change will radically transform a tradition that is as
 385 old as the Republic itself. Most, if they recognized this change,
 386 would reject it. Yet most don't even see the change that the Internet
 387 has introduced.
 388 </p><a class="indexterm" name="idp38826384"></a><a class="indexterm" name="idp38827360"></a><a class="indexterm" name="idp38828112"></a><a class="indexterm" name="idxculturecommercialvsnoncommercial"></a><a class="indexterm" name="idp38830608"></a><p>
 389 We can glimpse a sense of this change by distinguishing between
 390 commercial and noncommercial culture, and by mapping the law's
 391 regulation of each. By <span class="quote">«<span class="quote">commercial culture</span>»</span> I mean that part of our
 392 culture that is produced and sold or produced to be sold. By
 393 <span class="quote">«<span class="quote">noncommercial culture</span>»</span> I mean all the rest. When old men sat around
 394 parks or on
 395
 396 street corners telling stories that kids and others consumed, that was
 397 noncommercial culture. When Noah Webster published his <span class="quote">«<span class="quote">Reader,</span>»</span> or
 398 Joel Barlow his poetry, that was commercial culture.
 399 </p><p>
 400 At the beginning of our history, and for just about the whole of our
 401 tradition, noncommercial culture was essentially unregulated. Of
 402 course, if your stories were lewd, or if your song disturbed the
 403 peace, then the law might intervene. But the law was never directly
 404 concerned with the creation or spread of this form of culture, and it
 405 left this culture <span class="quote">«<span class="quote">free.</span>»</span> The ordinary ways in which ordinary
 406 individuals shared and transformed their culture&#8212;telling
 407 stories, reenacting scenes from plays or TV, participating in fan
 408 clubs, sharing music, making tapes&#8212;were left alone by the law.
 409 </p><a class="indexterm" name="idxcopyrightinfringementlawsuitscommercialcreativityasprimarypurposeof"></a><p>
 410 The focus of the law was on commercial creativity. At first slightly,
 411 then quite extensively, the law protected the incentives of creators by
 412 granting them exclusive rights to their creative work, so that they could
 413 sell those exclusive rights in a commercial
 414 marketplace.<a href="#ftn.idp38837504" class="footnote" name="idp38837504"><sup class="footnote">[11]</sup></a>
 415 This is also, of course, an important part of creativity and culture,
 416 and it has become an increasingly important part in America. But in no
 417 sense was it dominant within our tradition. It was instead just one
 418 part, a controlled part, balanced with the free.
 419 </p><a class="indexterm" name="idp38840544"></a><a class="indexterm" name="idp38841552"></a><p>
 420 This rough divide between the free and the controlled has now
 421 been erased.<a href="#ftn.idp38842816" class="footnote" name="idp38842816"><sup class="footnote">[12]</sup></a>
 422 The Internet has set the stage for this erasure and, pushed by big
 423 media, the law has now affected it. For the first time in our
 424 tradition, the ordinary ways in which individuals create and share
 425 culture fall within the reach of the regulation of the law, which has
 426 expanded to draw within its control a vast amount of culture and
 427 creativity that it never reached before. The technology that preserved
 428 the balance of our history&#8212;between uses of our culture that were
 429 free and uses of our culture that were only upon permission&#8212;has
 430 been undone.  The consequence is that we are less and less a free
 431 culture, more and more a permission culture.
 432 </p><a class="indexterm" name="idp38844752"></a><a class="indexterm" name="idp38846320"></a><a class="indexterm" name="idp38847072"></a><p>
 433 This change gets justified as necessary to protect commercial
 434 creativity.  And indeed, protectionism is precisely its
 435 motivation. But the protectionism that justifies the changes that I
 436 will describe below is not the limited and balanced sort that has
 437 defined the law in the past. This is not a protectionism to protect
 438 artists. It is instead a protectionism to protect certain forms of
 439 business. Corporations threatened by the potential of the Internet to
 440 change the way both commercial and noncommercial culture are made and
 441 shared have united to induce lawmakers to use the law to protect
 442 them. It is the story of RCA and Armstrong; it is the dream of the
 443 Causbys.
 444 </p><a class="indexterm" name="idp38848896"></a><p>
 445 For the Internet has unleashed an extraordinary possibility for many
 446 to participate in the process of building and cultivating a culture
 447 that reaches far beyond local boundaries. That power has changed the
 448 marketplace for making and cultivating culture generally, and that
 449 change in turn threatens established content industries. The Internet
 450 is thus to the industries that built and distributed content in the
 451 twentieth century what FM radio was to AM radio, or what the truck was
 452 to the railroad industry of the nineteenth century: the beginning of
 453 the end, or at least a substantial transformation. Digital
 454 technologies, tied to the Internet, could produce a vastly more
 455 competitive and vibrant market for building and cultivating culture;
 456 that market could include a much wider and more diverse range of
 457 creators; those creators could produce and distribute a much more
 458 vibrant range of creativity; and depending upon a few important
 459 factors, those creators could earn more on average from this system
 460 than creators do today&#8212;all so long as the RCAs of our day don't
 461 use the law to protect themselves against this competition.
 462 </p><p>
 463 Yet, as I argue in the pages that follow, that is precisely what is
 464 happening in our culture today. These modern-day equivalents of the
 465 early twentieth-century radio or nineteenth-century railroads are
 466 using their power to get the law to protect them against this new,
 467 more efficient, more vibrant technology for building culture. They are
 468 succeeding in their plan to remake the Internet before the Internet
 469 remakes them.
 470 </p><a class="indexterm" name="idp38851104"></a><a class="indexterm" name="idp38853456"></a><p>
 471 It doesn't seem this way to many. The battles over copyright and the
 472
 473 Internet seem remote to most. To the few who follow them, they seem
 474 mainly about a much simpler brace of questions&#8212;whether <span class="quote">«<span class="quote">piracy</span>»</span> will
 475 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
 476 has been waged against the technologies of the Internet&#8212;what
 477 Motion Picture Association of America (MPAA) president Jack Valenti
 478 calls his <span class="quote">«<span class="quote">own terrorist war</span>»</span><a href="#ftn.idp38856688" class="footnote" name="idp38856688"><sup class="footnote">[13]</sup></a>&#8212;has been framed as a battle about the
 479 rule of law and respect for property. To know which side to take in this
 480 war, most think that we need only decide whether we're for property or
 481 against it.
 482 </p><p>
 483 If those really were the choices, then I would be with Jack Valenti
 484 and the content industry. I, too, am a believer in property, and
 485 especially in the importance of what Mr. Valenti nicely calls
 486 <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
 487 law, properly tuned, should punish <span class="quote">«<span class="quote">piracy,</span>»</span> whether on or off the
 488 Internet.
 489 </p><p>
 490 But those simple beliefs mask a much more fundamental question
 491 and a much more dramatic change. My fear is that unless we come to see
 492 this change, the war to rid the world of Internet <span class="quote">«<span class="quote">pirates</span>»</span> will also rid our
 493 culture of values that have been integral to our tradition from the start.
 494 </p><a class="indexterm" name="idp38861344"></a><a class="indexterm" name="idp38862352"></a><a class="indexterm" name="idp38863360"></a><a class="indexterm" name="idp38864112"></a><p>
 495 These values built a tradition that, for at least the first 180 years of
 496 our Republic, guaranteed creators the right to build freely upon their
 497 past, and protected creators and innovators from either state or private
 498 control. The First Amendment protected creators against state control.
 499 And as Professor Neil Netanel powerfully argues,<a href="#ftn.idp38865472" class="footnote" name="idp38865472"><sup class="footnote">[14]</sup></a>
 500 copyright law, properly balanced, protected creators against private
 501 control. Our tradition was thus neither Soviet nor the tradition of
 502 patrons. It instead carved out a wide berth within which creators
 503 could cultivate and extend our culture.
 504 </p><p>
 505 Yet the law's response to the Internet, when tied to changes in the
 506 technology of the Internet itself, has massively increased the
 507 effective regulation of creativity in America. To build upon or
 508 critique the culture around us one must ask, Oliver Twist&#8211;like,
 509 for permission first.  Permission is, of course, often
 510 granted&#8212;but it is not often granted to the critical or the
 511 independent. We have built a kind of cultural nobility; those within
 512 the noble class live easily; those outside it don't. But it is
 513 nobility of any form that is alien to our tradition.
 514 </p><p>
 515 The story that follows is about this war. It is not about the
 516 <span class="quote">«<span class="quote">centrality of technology</span>»</span> to ordinary life. I don't believe in gods,
 517 digital or otherwise. Nor is it an effort to demonize any individual
 518 or group, for neither do I believe in a devil, corporate or
 519 otherwise. It is not a morality tale. Nor is it a call to jihad
 520 against an industry.
 521 </p><p>
 522 It is instead an effort to understand a hopelessly destructive war
 523 inspired by the technologies of the Internet but reaching far beyond
 524 its code. And by understanding this battle, it is an effort to map
 525 peace.  There is no good reason for the current struggle around
 526 Internet technologies to continue. There will be great harm to our
 527 tradition and culture if it is allowed to continue unchecked. We must
 528 come to understand the source of this war. We must resolve it soon.
 529 </p><a class="indexterm" name="idp38871248"></a><a class="indexterm" name="idp38872000"></a><a class="indexterm" name="idxintellectualpropertyrights"></a><p>
 530 <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
 531 property of this war is not as tangible as the Causbys', and no
 532 innocent chicken has yet to lose its life. Yet the ideas surrounding
 533 this <span class="quote">«<span class="quote">property</span>»</span> are as obvious to most as the Causbys' claim about the
 534 sacredness of their farm was to them. We are the Causbys. Most of us
 535 take for granted the extraordinarily powerful claims that the owners
 536 of <span class="quote">«<span class="quote">intellectual property</span>»</span> now assert. Most of us, like the Causbys,
 537 treat these claims as obvious. And hence we, like the Causbys, object
 538 when a new technology interferes with this property. It is as plain to
 539 us as it was to them that the new technologies of the Internet are
 540 <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
 541 us as it was to them that the law should intervene to stop this
 542 trespass.
 543 </p><a class="indexterm" name="idp38877664"></a><a class="indexterm" name="idp38878416"></a><a class="indexterm" name="idp38879168"></a><p>
 544 And thus, when geeks and technologists defend their Armstrong or
 545 Wright brothers technology, most of us are simply unsympathetic.
 546 Common sense does not revolt. Unlike in the case of the unlucky
 547 Causbys, common sense is on the side of the property owners in this
 548 war. Unlike
 549
 550 the lucky Wright brothers, the Internet has not inspired a revolution
 551 on its side.
 552 </p><a class="indexterm" name="idp38880848"></a><p>
 553 My hope is to push this common sense along. I have become increasingly
 554 amazed by the power of this idea of intellectual property and, more
 555 importantly, its power to disable critical thought by policy makers
 556 and citizens. There has never been a time in our history when more of
 557 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
 558 been a time when the concentration of power to control the
 559 <span class="emphasis"><em>uses</em></span> of culture has been as unquestioningly
 560 accepted as it is now.
 561 </p><p>
 562 The puzzle is, Why?  Is it because we have come to understand a truth
 563 about the value and importance of absolute property over ideas and
 564 culture? Is it because we have discovered that our tradition of
 565 rejecting such an absolute claim was wrong?
 566 </p><p>
 567 Or is it because the idea of absolute property over ideas and culture
 568 benefits the RCAs of our time and fits our own unreflective intuitions?
 569 </p><p>
 570 Is the radical shift away from our tradition of free culture an instance
 571 of America correcting a mistake from its past, as we did after a bloody
 572 war with slavery, and as we are slowly doing with inequality? Or is the
 573 radical shift away from our tradition of free culture yet another example
 574 of a political system captured by a few powerful special interests?
 575 </p><p>
 576 Does common sense lead to the extremes on this question because common
 577 sense actually believes in these extremes? Or does common sense stand
 578 silent in the face of these extremes because, as with Armstrong versus
 579 RCA, the more powerful side has ensured that it has the more powerful
 580 view?
 581 </p><a class="indexterm" name="idp38886272"></a><a class="indexterm" name="idp38887024"></a><p>
 582 I don't mean to be mysterious. My own views are resolved. I believe it
 583 was right for common sense to revolt against the extremism of the
 584 Causbys. I believe it would be right for common sense to revolt
 585 against the extreme claims made today on behalf of <span class="quote">«<span class="quote">intellectual
 586 property.</span>»</span>  What the law demands today is increasingly as silly as a
 587 sheriff arresting an airplane for trespass. But the consequences of
 588 this silliness will be much more profound.
 589
 590 </p><a class="indexterm" name="idp38889264"></a><p>
 591 <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
 592 <span class="quote">«<span class="quote">property.</span>»</span> My aim in this book's next two parts is to explore these two
 593 ideas.
 594 </p><p>
 595 My method is not the usual method of an academic. I don't want to
 596 plunge you into a complex argument, buttressed with references to
 597 obscure French theorists&#8212;however natural that is for the weird
 598 sort we academics have become. Instead I begin in each part with a
 599 collection of stories that set a context within which these apparently
 600 simple ideas can be more fully understood.
 601 </p><p>
 602 The two sections set up the core claim of this book: that while the
 603 Internet has indeed produced something fantastic and new, our
 604 government, pushed by big media to respond to this <span class="quote">«<span class="quote">something new,</span>»</span> is
 605 destroying something very old. Rather than understanding the changes
 606 the Internet might permit, and rather than taking time to let <span class="quote">«<span class="quote">common
 607 sense</span>»</span> resolve how best to respond, we are allowing those most
 608 threatened by the changes to use their power to change the
 609 law&#8212;and more importantly, to use their power to change something
 610 fundamental about who we have always been.
 611 </p><p>
 612 We allow this, I believe, not because it is right, and not because
 613 most of us really believe in these changes. We allow it because the
 614 interests most threatened are among the most powerful players in our
 615 depressingly compromised process of making law. This book is the story
 616 of one more consequence of this form of corruption&#8212;a consequence
 617 to which most of us remain oblivious.
 618 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp38744368" class="footnote"><p><a href="#idp38744368" class="para"><sup class="para">[4] </sup></a>
 619 St. George Tucker, <em class="citetitle">Blackstone's Commentaries</em> 3 (South Hackensack, N.J.:
 620 Rothman Reprints, 1969), 18.
 621 </p></div><div id="ftn.idp38757440" class="footnote"><p><a href="#idp38757440" class="para"><sup class="para">[5] </sup></a>
 622 United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find
 623 that there could be a <span class="quote">«<span class="quote">taking</span>»</span> if the government's use of its land
 624 effectively destroyed the value of the Causbys' land. This example was
 625 suggested to me by Keith Aoki's wonderful piece, <span class="quote">«<span class="quote">(Intellectual)
 626 Property and Sovereignty: Notes Toward a Cultural Geography of
 627 Authorship,</span>»</span> <em class="citetitle">Stanford Law Review</em> 48 (1996): 1293, 1333. See also Paul
 628 Goldstein, <em class="citetitle">Real Property</em> (Mineola, N.Y.: Foundation Press, 1984),
 629 1112&#8211;13.
 630 <a class="indexterm" name="idp38760864"></a>
 631 <a class="indexterm" name="idp38760400"></a>
 632 </p></div><div id="ftn.idp38786592" class="footnote"><p><a href="#idp38786592" class="para"><sup class="para">[6] </sup></a>
 633 Lawrence Lessing, <em class="citetitle">Man of High Fidelity: Edwin Howard Armstrong</em>
 634 (Philadelphia: J. B. Lipincott Company, 1956), 209.
 635 </p></div><div id="ftn.idp38783264" class="footnote"><p><a href="#idp38783264" class="para"><sup class="para">[7] </sup></a> See <span class="quote">«<span class="quote">Saints: The Heroes and Geniuses of the
 636 Electronic Era,</span>»</span> First Electronic Church of America, at
 637 www.webstationone.com/fecha, available at
 638
 639 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #1</a>.
 640 </p></div><div id="ftn.idp38801808" class="footnote"><p><a href="#idp38801808" class="para"><sup class="para">[8] </sup></a>Lessing, 226.
 641 </p></div><div id="ftn.idp38806480" class="footnote"><p><a href="#idp38806480" class="para"><sup class="para">[9] </sup></a>
 642 Lessing, 256.
 643 </p></div><div id="ftn.idp38822576" class="footnote"><p><a href="#idp38822576" class="para"><sup class="para">[10] </sup></a>
 644 Amanda Lenhart, <span class="quote">«<span class="quote">The Ever-Shifting Internet Population: A New Look at
 645 Internet Access and the Digital Divide,</span>»</span> Pew Internet and American
 646 Life Project, 15 April 2003: 6, available at
 647 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #2</a>.
 648 </p></div><div id="ftn.idp38837504" class="footnote"><p><a href="#idp38837504" class="para"><sup class="para">[11] </sup></a>
 649 This is not the only purpose of copyright, though it is the overwhelmingly
 650 primary purpose of the copyright established in the federal constitution.
 651 State copyright law historically protected not just the commercial interest in
 652 publication, but also a privacy interest. By granting authors the exclusive
 653 right to first publication, state copyright law gave authors the power to
 654 control the spread of facts about them. See Samuel D. Warren and Louis
 655 D. Brandeis, <span class="quote">«<span class="quote">The Right to Privacy,</span>»</span> <em class="citetitle">Harvard
 656 Law Review</em> 4 (1890): 193, 198&#8211;200.
 657 <a class="indexterm" name="idp38760736"></a>
 658 </p></div><div id="ftn.idp38842816" class="footnote"><p><a href="#idp38842816" class="para"><sup class="para">[12] </sup></a>
 659 See Jessica Litman, <em class="citetitle">Digital Copyright</em> (New York: Prometheus Books,
 660 2001), ch. 13.
 661 <a class="indexterm" name="idp38843584"></a>
 662 </p></div><div id="ftn.idp38856688" class="footnote"><p><a href="#idp38856688" class="para"><sup class="para">[13] </sup></a>
 663 Amy Harmon, <span class="quote">«<span class="quote">Black Hawk Download: Moving Beyond Music, Pirates
 664 Use New Tools to Turn the Net into an Illicit Video Club,</span>»</span> <em class="citetitle">New York
 665 Times</em>, 17 January 2002.
 666 </p></div><div id="ftn.idp38865472" class="footnote"><p><a href="#idp38865472" class="para"><sup class="para">[14] </sup></a>
 667 Neil W. Netanel, <span class="quote">«<span class="quote">Copyright and a Democratic Civil Society,</span>»</span> <em class="citetitle">Yale Law
 668 Journal</em> 106 (1996): 283.
 669 <a class="indexterm" name="idp38866752"></a>
 670 </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="idp38897424"></a><a class="indexterm" name="idxmansfieldwilliammurraylord"></a><a class="indexterm" name="idp38899664"></a><a class="indexterm" name="idp38900416"></a><p>
 671 <span class="strong"><strong>Since the inception</strong></span> of the law regulating creative property, there has
 672 been a war against <span class="quote">«<span class="quote">piracy.</span>»</span> The precise contours of this concept,
 673 <span class="quote">«<span class="quote">piracy,</span>»</span> are hard to sketch, but the animating injustice is easy to
 674 capture.  As Lord Mansfield wrote in a case that extended the reach of
 675 English copyright law to include sheet music,
 676 </p><div class="blockquote"><blockquote class="blockquote"><p>
 677 A person may use the copy by playing it, but he has no right to
 678 rob the author of the profit, by multiplying copies and disposing
 679 of them for his own use.<a href="#ftn.idp38903904" class="footnote" name="idp38903904"><sup class="footnote">[15]</sup></a>
 680 </p><a class="indexterm" name="idp38905568"></a></blockquote></div><a class="indexterm" name="idp38906672"></a><a class="indexterm" name="idxpeertopeerppfilesharingefficiencyof"></a><p>
 681 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
 682 Internet has provoked this war. The Internet makes possible the
 683 efficient spread of content. Peer-to-peer (p2p) file sharing is among
 684 the most efficient of the efficient technologies the Internet
 685 enables. Using distributed intelligence, p2p systems facilitate the
 686 easy spread of content in a way unimagined a generation ago.
 687
 688 </p><p>
 689 This efficiency does not respect the traditional lines of copyright.
 690 The network doesn't discriminate between the sharing of copyrighted
 691 and uncopyrighted content. Thus has there been a vast amount of
 692 sharing of copyrighted content. That sharing in turn has excited the
 693 war, as copyright owners fear the sharing will <span class="quote">«<span class="quote">rob the author of the
 694 profit.</span>»</span>
 695 </p><a class="indexterm" name="idp38912032"></a><p>
 696 The warriors have turned to the courts, to the legislatures, and
 697 increasingly to technology to defend their <span class="quote">«<span class="quote">property</span>»</span> against this
 698 <span class="quote">«<span class="quote">piracy.</span>»</span>  A generation of Americans, the warriors warn, is being
 699 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,
 700 never mind body piercing&#8212;our kids are becoming
 701 <span class="emphasis"><em>thieves</em></span>!
 702 </p><p>
 703 There's no doubt that <span class="quote">«<span class="quote">piracy</span>»</span> is wrong, and that pirates should be
 704 punished. But before we summon the executioners, we should put this
 705 notion of <span class="quote">«<span class="quote">piracy</span>»</span> in some context. For as the concept is increasingly
 706 used, at its core is an extraordinary idea that is almost certainly wrong.
 707 </p><p>
 708 The idea goes something like this:
 709 </p><div class="blockquote"><blockquote class="blockquote"><p>
 710 Creative work has value; whenever I use, or take, or build upon
 711 the creative work of others, I am taking from them something of
 712 value. Whenever I take something of value from someone else, I
 713 should have their permission. The taking of something of value
 714 from someone else without permission is wrong. It is a form of
 715 piracy.
 716 </p></blockquote></div><a class="indexterm" name="idp38918528"></a><a class="indexterm" name="idp38919280"></a><a class="indexterm" name="idp38920032"></a><a class="indexterm" name="idp38920784"></a><a class="indexterm" name="idxcreativepropertyifvaluethenrighttheoryof"></a><a class="indexterm" name="idxifvaluethenrighttheory"></a><p>
 717 This view runs deep within the current debates. It is what NYU law
 718 professor Rochelle Dreyfuss criticizes as the <span class="quote">«<span class="quote">if value, then right</span>»</span>
 719 theory of creative property<a href="#ftn.idp38925792" class="footnote" name="idp38925792"><sup class="footnote">[16]</sup></a>
 720 &#8212;if there is value, then someone must have a
 721 right to that value. It is the perspective that led a composers' rights
 722 organization, ASCAP, to sue the Girl Scouts for failing to pay for the
 723 songs that girls sang around Girl Scout campfires.<a href="#ftn.idp38915024" class="footnote" name="idp38915024"><sup class="footnote">[17]</sup></a>
 724 There was <span class="quote">«<span class="quote">value</span>»</span> (the songs) so there must have been a
 725 <span class="quote">«<span class="quote">right</span>»</span>&#8212;even against the Girl Scouts.
 726 </p><a class="indexterm" name="idp38932416"></a><p>
 727 This idea is certainly a possible understanding of how creative
 728 property should work. It might well be a possible design for a system
 729
 730 of law protecting creative property. But the <span class="quote">«<span class="quote">if value, then right</span>»</span>
 731 theory of creative property has never been America's theory of
 732 creative property.  It has never taken hold within our law.
 733 </p><a class="indexterm" name="idp38934704"></a><a class="indexterm" name="idxcopyrightlawonrepublishingvstransformationoforiginalwork"></a><a class="indexterm" name="idp38937408"></a><a class="indexterm" name="idxcreativitylegalrestrictionson"></a><p>
 734 Instead, in our tradition, intellectual property is an instrument. It
 735 sets the groundwork for a richly creative society but remains
 736 subservient to the value of creativity. The current debate has this
 737 turned around. We have become so concerned with protecting the
 738 instrument that we are losing sight of the value.
 739 </p><p>
 740 The source of this confusion is a distinction that the law no longer
 741 takes care to draw&#8212;the distinction between republishing someone's
 742 work on the one hand and building upon or transforming that work on
 743 the other. Copyright law at its birth had only publishing as its concern;
 744 copyright law today regulates both.
 745 </p><a class="indexterm" name="idp38941456"></a><p>
 746 Before the technologies of the Internet, this conflation didn't matter
 747 all that much. The technologies of publishing were expensive; that
 748 meant the vast majority of publishing was commercial. Commercial
 749 entities could bear the burden of the law&#8212;even the burden of the
 750 Byzantine complexity that copyright law has become. It was just one
 751 more expense of doing business.
 752 </p><a class="indexterm" name="idp38942736"></a><a class="indexterm" name="idp38944272"></a><a class="indexterm" name="idp38945024"></a><p>
 753 But with the birth of the Internet, this natural limit to the reach of
 754 the law has disappeared. The law controls not just the creativity of
 755 commercial creators but effectively that of anyone. Although that
 756 expansion would not matter much if copyright law regulated only
 757 <span class="quote">«<span class="quote">copying,</span>»</span> when the law regulates as broadly and obscurely as it does,
 758 the extension matters a lot. The burden of this law now vastly
 759 outweighs any original benefit&#8212;certainly as it affects
 760 noncommercial creativity, and increasingly as it affects commercial
 761 creativity as well. Thus, as we'll see more clearly in the chapters
 762 below, the law's role is less and less to support creativity, and more
 763 and more to protect certain industries against competition. Just at
 764 the time digital technology could unleash an extraordinary range of
 765 commercial and noncommercial creativity, the law burdens this
 766 creativity with insanely complex and vague rules and with the threat
 767 of obscenely severe penalties. We may
 768
 769 be seeing, as Richard Florida writes, the <span class="quote">«<span class="quote">Rise of the Creative
 770 Class.</span>»</span><a href="#ftn.idp38947968" class="footnote" name="idp38947968"><sup class="footnote">[18]</sup></a>
 771 Unfortunately, we are also seeing an extraordinary rise of regulation of
 772 this creative class.
 773 </p><a class="indexterm" name="idp38951408"></a><p>
 774 These burdens make no sense in our tradition. We should begin by
 775 understanding that tradition a bit more and by placing in their proper
 776 context the current battles about behavior labeled <span class="quote">«<span class="quote">piracy.</span>»</span>
 777 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp38903904" class="footnote"><p><a href="#idp38903904" class="para"><sup class="para">[15] </sup></a>
 778
 779 <em class="citetitle">Bach</em> v. <em class="citetitle">Longman</em>, 98 Eng. Rep. 1274 (1777) (Mansfield).
 780 </p></div><div id="ftn.idp38925792" class="footnote"><p><a href="#idp38925792" class="para"><sup class="para">[16] </sup></a>
 781
 782 See Rochelle Dreyfuss, <span class="quote">«<span class="quote">Expressive Genericity: Trademarks as Language
 783 in the Pepsi Generation,</span>»</span> <em class="citetitle">Notre Dame Law Review</em> 65 (1990): 397.
 784 </p></div><div id="ftn.idp38915024" class="footnote"><p><a href="#idp38915024" class="para"><sup class="para">[17] </sup></a>
 785
 786 Lisa Bannon, <span class="quote">«<span class="quote">The Birds May Sing, but Campers Can't Unless They Pay
 787 Up,</span>»</span> <em class="citetitle">Wall Street Journal</em>, 21 August 1996, available at
 788 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #3</a>; Jonathan
 789 Zittrain, <span class="quote">«<span class="quote">Calling Off the Copyright War: In Battle of Property vs. Free
 790 Speech, No One Wins,</span>»</span> <em class="citetitle">Boston Globe</em>, 24 November 2002.
 791 <a class="indexterm" name="idp38930640"></a>
 792 </p></div><div id="ftn.idp38947968" class="footnote"><p><a href="#idp38947968" class="para"><sup class="para">[18] </sup></a>
 793
 794 In <em class="citetitle">The Rise of the Creative Class</em> (New York:
 795 Basic Books, 2002), Richard Florida documents a shift in the nature of
 796 labor toward a labor of creativity.  His work, however, doesn't
 797 directly address the legal conditions under which that creativity is
 798 enabled or stifled. I certainly agree with him about the importance
 799 and significance of this change, but I also believe the conditions
 800 under which it will be enabled are much more tenuous.
 801
 802 <a class="indexterm" name="idp38949536"></a>
 803 <a class="indexterm" name="idp38950288"></a>
 804 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="creators"></a>Chapter 1. Chapter One: Creators</h2></div></div></div><a class="indexterm" name="idxanimatedcartoons"></a><a class="indexterm" name="idxcartoonfilms"></a><a class="indexterm" name="idxfilmsanimated"></a><a class="indexterm" name="idxsteamboatwillie"></a><a class="indexterm" name="idxmickeymouse"></a><p>
 805 <span class="strong"><strong>In 1928</strong></span>, a cartoon character was born. An early Mickey Mouse
 806 made his debut in May of that year, in a silent flop called <em class="citetitle">Plane Crazy</em>.
 807 In November, in New York City's Colony Theater, in the first widely
 808 distributed cartoon synchronized with sound, <em class="citetitle">Steamboat Willie</em> brought
 809 to life the character that would become Mickey Mouse.
 810 </p><a class="indexterm" name="idxdisneywalt"></a><p>
 811 Synchronized sound had been introduced to film a year earlier in the
 812 movie <em class="citetitle">The Jazz Singer</em>. That success led Walt Disney to copy the
 813 technique and mix sound with cartoons. No one knew whether it would
 814 work or, if it did work, whether it would win an audience. But when
 815 Disney ran a test in the summer of 1928, the results were unambiguous.
 816 As Disney describes that first experiment,
 817 </p><div class="blockquote"><blockquote class="blockquote"><p>
 818 A couple of my boys could read music, and one of them could play
 819 a mouth organ. We put them in a room where they could not see
 820 the screen and arranged to pipe their sound into the room where
 821 our wives and friends were going to see the picture.
 822
 823 </p><p>
 824 The boys worked from a music and sound-effects score. After several
 825 false starts, sound and action got off with the gun. The mouth
 826 organist played the tune, the rest of us in the sound department
 827 bammed tin pans and blew slide whistles on the beat.  The
 828 synchronization was pretty close.
 829 </p><p>
 830 The effect on our little audience was nothing less than electric.
 831 They responded almost instinctively to this union of sound and
 832 motion. I thought they were kidding me. So they put me in the audience
 833 and ran the action again. It was terrible, but it was wonderful! And
 834 it was something new!<a href="#ftn.idp38968112" class="footnote" name="idp38968112"><sup class="footnote">[19]</sup></a>
 835 </p></blockquote></div><a class="indexterm" name="idp38969600"></a><p>
 836 Disney's then partner, and one of animation's most extraordinary
 837 talents, Ub Iwerks, put it more strongly: <span class="quote">«<span class="quote">I have never been so thrilled
 838 in my life. Nothing since has ever equaled it.</span>»</span>
 839 </p><p>
 840 Disney had created something very new, based upon something relatively
 841 new. Synchronized sound brought life to a form of creativity that had
 842 rarely&#8212;except in Disney's hands&#8212;been anything more than
 843 filler for other films. Throughout animation's early history, it was
 844 Disney's invention that set the standard that others struggled to
 845 match.  And quite often, Disney's great genius, his spark of
 846 creativity, was built upon the work of others.
 847 </p><a class="indexterm" name="idp38971600"></a><a class="indexterm" name="idxkeatonbuster"></a><a class="indexterm" name="idxsteamboatbilljr"></a><p>
 848 This much is familiar. What you might not know is that 1928 also marks
 849 another important transition. In that year, a comic (as opposed to
 850 cartoon) genius created his last independently produced silent film.
 851 That genius was Buster Keaton. The film was <em class="citetitle">Steamboat Bill, Jr</em>.
 852 </p><p>
 853 Keaton was born into a vaudeville family in 1895. In the era of silent
 854 film, he had mastered using broad physical comedy as a way to spark
 855 uncontrollable laughter from his audience. <em class="citetitle">Steamboat Bill,
 856 Jr</em>. was a classic of this form, famous among film buffs for its
 857 incredible stunts.  The film was classic Keaton&#8212;wildly popular
 858 and among the best of its genre.
 859 </p><a class="indexterm" name="idxderivativeworkspiracyvs"></a><a class="indexterm" name="idxpiracyderivativeworkvs"></a><p>
 860 <em class="citetitle">Steamboat Bill, Jr</em>. appeared before Disney's cartoon Steamboat
 861 Willie.
 862
 863 The coincidence of titles is not coincidental. Steamboat Willie is a
 864 direct cartoon parody of Steamboat Bill,<a href="#ftn.idp38981840" class="footnote" name="idp38981840"><sup class="footnote">[20]</sup></a>
 865 and both are built upon a common song as a source. It is not just from
 866 the invention of synchronized sound in <em class="citetitle">The Jazz Singer</em> that we
 867 get <em class="citetitle">Steamboat Willie</em>. It is also from Buster Keaton's invention of
 868 Steamboat Bill, Jr., itself inspired by the song <span class="quote">«<span class="quote">Steamboat Bill,</span>»</span>
 869 that we get Steamboat Willie, and then from Steamboat Willie, Mickey
 870 Mouse.
 871 </p><a class="indexterm" name="idp38987888"></a><a class="indexterm" name="idp38988864"></a><a class="indexterm" name="idp38989840"></a><a class="indexterm" name="idp38990816"></a><a class="indexterm" name="idxcreativitybytransformingpreviousworks"></a><a class="indexterm" name="idxdisneyinc"></a><p>
 872 This <span class="quote">«<span class="quote">borrowing</span>»</span> was nothing unique, either for Disney or for the
 873 industry. Disney was always parroting the feature-length mainstream
 874 films of his day.<a href="#ftn.idp38995296" class="footnote" name="idp38995296"><sup class="footnote">[21]</sup></a>
 875 So did many others. Early cartoons are filled with
 876 knockoffs&#8212;slight variations on winning themes; retellings of
 877 ancient stories. The key to success was the brilliance of the
 878 differences. With Disney, it was sound that gave his animation its
 879 spark. Later, it was the quality of his work relative to the
 880 production-line cartoons with which he competed. Yet these additions
 881 were built upon a base that was borrowed.  Disney added to the work of
 882 others before him, creating something new out of something just barely
 883 old.
 884 </p><a class="indexterm" name="idxgrimmfairytales"></a><p>
 885 Sometimes this borrowing was slight. Sometimes it was significant.
 886 Think about the fairy tales of the Brothers Grimm. If you're as
 887 oblivious as I was, you're likely to think that these tales are happy,
 888 sweet stories, appropriate for any child at bedtime. In fact, the
 889 Grimm fairy tales are, well, for us, grim. It is a rare and perhaps
 890 overly ambitious parent who would dare to read these bloody,
 891 moralistic stories to his or her child, at bedtime or anytime.
 892 </p><p>
 893 Disney took these stories and retold them in a way that carried them
 894 into a new age. He animated the stories, with both characters and
 895 light. Without removing the elements of fear and danger altogether, he
 896 made funny what was dark and injected a genuine emotion of compassion
 897 where before there was fear. And not just with the work of the
 898 Brothers Grimm. Indeed, the catalog of Disney work drawing upon the
 899 work of others is astonishing when set together: <em class="citetitle">Snow White</em>
 900 (1937), <em class="citetitle">Fantasia</em> (1940), <em class="citetitle">Pinocchio</em> (1940), <em class="citetitle">Dumbo</em>
 901 (1941), <em class="citetitle">Bambi</em> (1942), <em class="citetitle">Song of the South</em> (1946),
 902 <em class="citetitle">Cinderella</em> (1950), <em class="citetitle">Alice in Wonderland</em> (1951), <em class="citetitle">Robin
 903 Hood</em> (1952), <em class="citetitle">Peter Pan</em> (1953), <em class="citetitle">Lady and the Tramp</em>
 904
 905 (1955), <em class="citetitle">Mulan</em> (1998), <em class="citetitle">Sleeping Beauty</em> (1959), <em class="citetitle">101
 906 Dalmatians</em> (1961), <em class="citetitle">The Sword in the Stone</em> (1963), and
 907 <em class="citetitle">The Jungle Book</em> (1967)&#8212;not to mention a recent example
 908 that we should perhaps quickly forget, <em class="citetitle">Treasure Planet</em>
 909 (2003). In all of these cases, Disney (or Disney, Inc.) ripped
 910 creativity from the culture around him, mixed that creativity with his
 911 own extraordinary talent, and then burned that mix into the soul of
 912 his culture. Rip, mix, and burn.
 913 </p><a class="indexterm" name="idp39008000"></a><p>
 914 This is a kind of creativity. It is a creativity that we should
 915 remember and celebrate. There are some who would say that there is no
 916 creativity except this kind. We don't need to go that far to recognize
 917 its importance. We could call this <span class="quote">«<span class="quote">Disney creativity,</span>»</span> though that
 918 would be a bit misleading. It is, more precisely, <span class="quote">«<span class="quote">Walt Disney
 919 creativity</span>»</span>&#8212;a form of expression and genius that builds upon the
 920 culture around us and makes it something different.
 921 </p><a class="indexterm" name="idp39010512"></a><a class="indexterm" name="idp39011488"></a><a class="indexterm" name="idp39012464"></a><a class="indexterm" name="idp39013440"></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
 922 relatively fresh. The public domain in 1928 was not very old and was
 923 therefore quite vibrant. The average term of copyright was just around
 924 thirty years&#8212;for that minority of creative work that was in fact
 925 copyrighted.<a href="#ftn.idp39010128" class="footnote" name="idp39010128"><sup class="footnote">[22]</sup></a>
 926 That means that for thirty years, on average, the authors or
 927 copyright holders of a creative work had an <span class="quote">«<span class="quote">exclusive right</span>»</span> to control
 928 certain uses of the work. To use this copyrighted work in limited ways
 929 required the permission of the copyright owner.
 930 </p><p>
 931 At the end of a copyright term, a work passes into the public domain.
 932 No permission is then needed to draw upon or use that work. No
 933 permission and, hence, no lawyers. The public domain is a <span class="quote">«<span class="quote">lawyer-free
 934 zone.</span>»</span> Thus, most of the content from the nineteenth century was free
 935 for Disney to use and build upon in 1928. It was free for
 936 anyone&#8212; whether connected or not, whether rich or not, whether
 937 approved or not&#8212;to use and build upon.
 938 </p><a class="indexterm" name="idp39023488"></a><a class="indexterm" name="idp39024848"></a><p>
 939 This is the ways things always were&#8212;until quite recently. For most
 940 of our history, the public domain was just over the horizon. From
 941 until 1978, the average copyright term was never more than thirty-two
 942 years, meaning that most culture just a generation and a half old was
 943
 944
 945 free for anyone to build upon without the permission of anyone else.
 946 Today's equivalent would be for creative work from the 1960s and 1970s
 947 to now be free for the next Walt Disney to build upon without
 948 permission. Yet today, the public domain is presumptive only for
 949 content from before the Great Depression.
 950 </p><a class="indexterm" name="idp39027072"></a><a class="indexterm" name="idp39028048"></a><a class="indexterm" name="idp39029024"></a><a class="indexterm" name="idp39030000"></a><a class="indexterm" name="idp39030976"></a><a class="indexterm" name="idp39031952"></a><p>
 951 <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>
 952 Nor does America. The norm of free culture has, until recently, and
 953 except within totalitarian nations, been broadly exploited and quite
 954 universal.
 955 </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>
 956 Consider, for example, a form of creativity that seems strange to many
 957 Americans but that is inescapable within Japanese culture: <em class="citetitle">manga</em>, or
 958 comics. The Japanese are fanatics about comics. Some 40 percent of
 959 publications are comics, and 30 percent of publication revenue derives
 960 from comics. They are everywhere in Japanese society, at every
 961 magazine stand, carried by a large proportion of commuters on Japan's
 962 extraordinary system of public transportation.
 963 </p><p>
 964 Americans tend to look down upon this form of culture. That's an
 965 unattractive characteristic of ours. We're likely to misunderstand
 966 much about manga, because few of us have ever read anything close to
 967 the stories that these <span class="quote">«<span class="quote">graphic novels</span>»</span> tell. For the Japanese, manga
 968 cover every aspect of social life. For us, comics are <span class="quote">«<span class="quote">men in tights.</span>»</span>
 969 And anyway, it's not as if the New York subways are filled with
 970 readers of Joyce or even Hemingway. People of different cultures
 971 distract themselves in different ways, the Japanese in this
 972 interestingly different way.
 973 </p><p>
 974 But my purpose here is not to understand manga. It is to describe a
 975 variant on manga that from a lawyer's perspective is quite odd, but
 976 from a Disney perspective is quite familiar.
 977 </p><a class="indexterm" name="idxcreativitybytransformingpreviousworks2"></a><a class="indexterm" name="idxdoujinshicomics"></a><p>
 978 This is the phenomenon of <em class="citetitle">doujinshi</em>. Doujinshi are also comics, but
 979 they are a kind of copycat comic. A rich ethic governs the creation of
 980 doujinshi. It is not doujinshi if it is <span class="emphasis"><em>just</em></span> a
 981 copy; the artist must make a contribution to the art he copies, by
 982 transforming it either subtly or
 983
 984 significantly. A doujinshi comic can thus take a mainstream comic and
 985 develop it differently&#8212;with a different story line. Or the comic can
 986 keep the character in character but change its look slightly. There is no
 987 formula for what makes the doujinshi sufficiently <span class="quote">«<span class="quote">different.</span>»</span> But they
 988 must be different if they are to be considered true doujinshi. Indeed,
 989 there are committees that review doujinshi for inclusion within shows
 990 and reject any copycat comic that is merely a copy.
 991 </p><a class="indexterm" name="idxdisneywalt2"></a><p>
 992 These copycat comics are not a tiny part of the manga market. They are
 993 huge. More than 33,000 <span class="quote">«<span class="quote">circles</span>»</span> of creators from across Japan produce
 994 these bits of Walt Disney creativity. More than 450,000 Japanese come
 995 together twice a year, in the largest public gathering in the country,
 996 to exchange and sell them. This market exists in parallel to the
 997 mainstream commercial manga market. In some ways, it obviously
 998 competes with that market, but there is no sustained effort by those
 999 who control the commercial manga market to shut the doujinshi market
1000 down. It flourishes, despite the competition and despite the law.
1001 </p><a class="indexterm" name="idxcopyrightlawjapanese"></a><a class="indexterm" name="idp39053808"></a><p>
1002 The most puzzling feature of the doujinshi market, for those trained
1003 in the law, at least, is that it is allowed to exist at all. Under
1004 Japanese copyright law, which in this respect (on paper) mirrors
1005 American copyright law, the doujinshi market is an illegal
1006 one. Doujinshi are plainly <span class="quote">«<span class="quote">derivative works.</span>»</span> There is no general
1007 practice by doujinshi artists of securing the permission of the manga
1008 creators. Instead, the practice is simply to take and modify the
1009 creations of others, as Walt Disney did with <em class="citetitle">Steamboat Bill,
1010 Jr</em>. Under both Japanese and American law, that <span class="quote">«<span class="quote">taking</span>»</span> without
1011 the permission of the original copyright owner is illegal. It is an
1012 infringement of the original copyright to make a copy or a derivative
1013 work without the original copyright owner's permission.
1014 </p><a class="indexterm" name="idp39056848"></a><a class="indexterm" name="idxwinickjudd"></a><p>
1015 Yet this illegal market exists and indeed flourishes in Japan, and in
1016 the view of many, it is precisely because it exists that Japanese manga
1017 flourish. As American graphic novelist Judd Winick said to me, <span class="quote">«<span class="quote">The
1018 early days of comics in America are very much like what's going on
1019 in Japan now. &#8230; American  comics were born out of copying each
1020
1021 other. &#8230; That's how [the artists] learn to draw &#8212; by going into comic
1022 books and not tracing them, but looking at them and copying them</span>»</span>
1023 and building from them.<a href="#ftn.idp39060592" class="footnote" name="idp39060592"><sup class="footnote">[23]</sup></a>
1024 </p><a class="indexterm" name="idp39061872"></a><a class="indexterm" name="idp39062848"></a><p>
1025 American comics now are quite different, Winick explains, in part
1026 because of the legal difficulty of adapting comics the way doujinshi are
1027 allowed. Speaking of Superman, Winick told me, <span class="quote">«<span class="quote">there are these rules
1028 and you have to stick to them.</span>»</span> There are things Superman <span class="quote">«<span class="quote">cannot</span>»</span>
1029 do. <span class="quote">«<span class="quote">As a creator, it's frustrating having to stick to some parameters
1030 which are fifty years old.</span>»</span>
1031 </p><a class="indexterm" name="idp39065456"></a><a class="indexterm" name="idxcopyrightlawjapanese2"></a><a class="indexterm" name="idp39067920"></a><a class="indexterm" name="idxmehrasalil"></a><p>
1032 The norm in Japan mitigates this legal difficulty. Some say it is
1033 precisely the benefit accruing to the Japanese manga market that
1034 explains the mitigation. Temple University law professor Salil Mehra,
1035 for example, hypothesizes that the manga market accepts these
1036 technical violations because they spur the manga market to be more
1037 wealthy and productive. Everyone would be worse off if doujinshi were
1038 banned, so the law does not ban doujinshi.<a href="#ftn.idp39070624" class="footnote" name="idp39070624"><sup class="footnote">[24]</sup></a>
1039 </p><a class="indexterm" name="idp39073152"></a><a class="indexterm" name="idp39074128"></a><a class="indexterm" name="idp39075104"></a><p>
1040 The problem with this story, however, as Mehra plainly acknowledges,
1041 is that the mechanism producing this laissez faire response is not
1042 clear. It may well be that the market as a whole is better off if
1043 doujinshi are permitted rather than banned, but that doesn't explain
1044 why individual copyright owners don't sue nonetheless. If the law has
1045 no general exception for doujinshi, and indeed in some cases
1046 individual manga artists have sued doujinshi artists, why is there not
1047 a more general pattern of blocking this <span class="quote">«<span class="quote">free taking</span>»</span> by the doujinshi
1048 culture?
1049 </p><a class="indexterm" name="idp39077888"></a><a class="indexterm" name="idp39078864"></a><p>
1050 I spent four wonderful months in Japan, and I asked this question
1051 as often as I could. Perhaps the best account in the end was offered by
1052 a friend from a major Japanese law firm. <span class="quote">«<span class="quote">We don't have enough
1053 lawyers,</span>»</span> he told me one afternoon. There <span class="quote">«<span class="quote">just aren't enough resources
1054 to prosecute cases like this.</span>»</span>
1055 </p><p>
1056 This is a theme to which we will return: that regulation by law is a
1057 function of both the words on the books and the costs of making those
1058 words have effect. For now, focus on the obvious question that is
1059 begged: Would Japan be better off with more lawyers? Would manga
1060
1061 be richer if doujinshi artists were regularly prosecuted? Would the
1062 Japanese gain something important if they could end this practice of
1063 uncompensated sharing? Does piracy here hurt the victims of the
1064 piracy, or does it help them? Would lawyers fighting this piracy help
1065 their clients or hurt them?
1066 </p><a class="indexterm" name="idp39082512"></a><p>
1067 <span class="strong"><strong>Let's pause</strong></span> for a moment.
1068 </p><p>
1069 If you're like I was a decade ago, or like most people are when they
1070 first start thinking about these issues, then just about now you should
1071 be puzzled about something you hadn't thought through before.
1072 </p><p>
1073 We live in a world that celebrates <span class="quote">«<span class="quote">property.</span>»</span> I am one of those
1074 celebrants.  I believe in the value of property in general, and I also
1075 believe in the value of that weird form of property that lawyers call
1076 <span class="quote">«<span class="quote">intellectual property.</span>»</span><a href="#ftn.idp39086176" class="footnote" name="idp39086176"><sup class="footnote">[25]</sup></a>
1077 A large, diverse society cannot survive without property; a large,
1078 diverse, and modern society cannot flourish without intellectual
1079 property.
1080 </p><a class="indexterm" name="idxdisneywalt3"></a><a class="indexterm" name="idxgrimmfairytales2"></a><a class="indexterm" name="idp39092288"></a><p>
1081 But it takes just a second's reflection to realize that there is
1082 plenty of value out there that <span class="quote">«<span class="quote">property</span>»</span> doesn't capture. I don't
1083 mean <span class="quote">«<span class="quote">money can't buy you love,</span>»</span> but rather, value that is plainly
1084 part of a process of production, including commercial as well as
1085 noncommercial production.  If Disney animators had stolen a set of
1086 pencils to draw Steamboat Willie, we'd have no hesitation in
1087 condemning that taking as wrong&#8212; even though trivial, even if
1088 unnoticed. Yet there was nothing wrong, at least under the law of the
1089 day, with Disney's taking from Buster Keaton or from the Brothers
1090 Grimm. There was nothing wrong with the taking from Keaton because
1091 Disney's use would have been considered <span class="quote">«<span class="quote">fair.</span>»</span> There was nothing
1092 wrong with the taking from the Grimms because the Grimms' work was in
1093 the public domain.
1094 </p><a class="indexterm" name="idxfreeculturederivativeworksbasedon"></a><p>
1095 Thus, even though the things that Disney took&#8212;or more generally,
1096 the things taken by anyone exercising Walt Disney creativity&#8212;are
1097 valuable, our tradition does not treat those takings as wrong. Some
1098
1099
1100 things remain free for the taking within a free culture, and that
1101 freedom is good.
1102 </p><a class="indexterm" name="idp39097824"></a><a class="indexterm" name="idxcopyrightlawjapanese3"></a><a class="indexterm" name="idp39100288"></a><a class="indexterm" name="idxdoujinshicomics2"></a><a class="indexterm" name="idxjapanesecomics2"></a><a class="indexterm" name="idxmanga2"></a><p>
1103 The same with the doujinshi culture. If a doujinshi artist broke into
1104 a publisher's office and ran off with a thousand copies of his latest
1105 work&#8212;or even one copy&#8212;without paying, we'd have no hesitation in
1106 saying the artist was wrong. In addition to having trespassed, he would
1107 have stolen something of value. The law bans that stealing in whatever
1108 form, whether large or small.
1109 </p><a class="indexterm" name="idp39104992"></a><p>
1110 Yet there is an obvious reluctance, even among Japanese lawyers, to
1111 say that the copycat comic artists are <span class="quote">«<span class="quote">stealing.</span>»</span> This form of Walt
1112 Disney creativity is seen as fair and right, even if lawyers in
1113 particular find it hard to say why.
1114 </p><a class="indexterm" name="idp39107552"></a><a class="indexterm" name="idp39108528"></a><a class="indexterm" name="idp39109504"></a><a class="indexterm" name="idp39110480"></a><a class="indexterm" name="idp39111456"></a><a class="indexterm" name="idp39112432"></a><a class="indexterm" name="idp39113408"></a><p>
1115 It's the same with a thousand examples that appear everywhere once you
1116 begin to look. Scientists build upon the work of other scientists
1117 without asking or paying for the privilege. (<span class="quote">«<span class="quote">Excuse me, Professor
1118 Einstein, but may I have permission to use your theory of relativity
1119 to show that you were wrong about quantum physics?</span>»</span>) Acting companies
1120 perform adaptations of the works of Shakespeare without securing
1121 permission from anyone. (Does <span class="emphasis"><em>anyone</em></span> believe
1122 Shakespeare would be better spread within our culture if there were a
1123 central Shakespeare rights clearinghouse that all productions of
1124 Shakespeare must appeal to first?) And Hollywood goes through cycles
1125 with a certain kind of movie: five asteroid films in the late 1990s;
1126 two volcano disaster films in 1997.
1127 </p><p>
1128 Creators here and everywhere are always and at all times building
1129 upon the creativity that went before and that surrounds them now.
1130 That building is always and everywhere at least partially done without
1131 permission and without compensating the original creator. No society,
1132 free or controlled, has ever demanded that every use be paid for or that
1133 permission for Walt Disney creativity must always be sought. Instead,
1134 every society has left a certain bit of its culture free for the taking&#8212;free
1135 societies more fully than unfree, perhaps, but all societies to some degree.
1136
1137 </p><a class="indexterm" name="idp39116640"></a><p>
1138 The hard question is therefore not <span class="emphasis"><em>whether</em></span> a
1139 culture is free. All cultures are free to some degree. The hard
1140 question instead is <span class="quote">«<span class="quote"><span class="emphasis"><em>How</em></span> free is this culture?</span>»</span>
1141 How much, and how broadly, is the culture free for others to take and
1142 build upon? Is that freedom limited to party members?  To members of
1143 the royal family? To the top ten corporations on the New York Stock
1144 Exchange? Or is that freedom spread broadly? To artists generally,
1145 whether affiliated with the Met or not? To musicians generally,
1146 whether white or not? To filmmakers generally, whether affiliated with
1147 a studio or not?
1148 </p><p>
1149 Free cultures are cultures that leave a great deal open for others to
1150 build upon; unfree, or permission, cultures leave much less. Ours was a
1151 free culture. It is becoming much less so.
1152 </p><a class="indexterm" name="idp39120896"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp38968112" class="footnote"><p><a href="#idp38968112" class="para"><sup class="para">[19] </sup></a>
1153
1154 Leonard Maltin, <em class="citetitle">Of Mice and Magic: A History of American Animated
1155 Cartoons</em> (New York: Penguin Books, 1987), 34&#8211;35.
1156 </p></div><div id="ftn.idp38981840" class="footnote"><p><a href="#idp38981840" class="para"><sup class="para">[20] </sup></a>
1157
1158 I am grateful to David Gerstein and his careful history, described at
1159 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #4</a>.
1160 According to Dave Smith of the Disney Archives, Disney paid royalties to
1161 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
1162 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>
1163 (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
1164 Straw,</span>»</span> was already in the public domain. Letter from David Smith to
1165 Harry Surden, 10 July 2003, on file with author.
1166 </p></div><div id="ftn.idp38995296" class="footnote"><p><a href="#idp38995296" class="para"><sup class="para">[21] </sup></a>
1167
1168 He was also a fan of the public domain. See Chris Sprigman, <span class="quote">«<span class="quote">The Mouse
1169 that Ate the Public Domain,</span>»</span> Findlaw, 5 March 2002, at
1170 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #5</a>.
1171 </p></div><div id="ftn.idp39010128" class="footnote"><p><a href="#idp39010128" class="para"><sup class="para">[22] </sup></a>
1172
1173 Until 1976, copyright law granted an author the possibility of two terms: an
1174 initial term and a renewal term. I have calculated the <span class="quote">«<span class="quote">average</span>»</span> term by
1175 determining
1176 the weighted average of total registrations for any particular year,
1177 and the proportion renewing. Thus, if 100 copyrights are registered in year
1178 1, and only 15 are renewed, and the renewal term is 28 years, then the
1179 average
1180 term is 32.2 years. For the renewal data and other relevant data, see the
1181 Web site associated with this book, available at
1182 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #6</a>.
1183 </p></div><div id="ftn.idp39060592" class="footnote"><p><a href="#idp39060592" class="para"><sup class="para">[23] </sup></a>
1184
1185 For an excellent history, see Scott McCloud, <em class="citetitle">Reinventing Comics</em> (New
1186 York: Perennial, 2000).
1187 </p></div><div id="ftn.idp39070624" class="footnote"><p><a href="#idp39070624" class="para"><sup class="para">[24] </sup></a>
1188
1189 See Salil K. Mehra, <span class="quote">«<span class="quote">Copyright and Comics in Japan: Does Law Explain
1190 Why All the Comics My Kid Watches Are Japanese Imports?</span>»</span> <em class="citetitle">Rutgers Law
1191 Review</em> 55 (2002): 155, 182. <span class="quote">«<span class="quote">[T]here might be a collective economic
1192 rationality that would lead manga and anime artists to forgo bringing
1193 legal actions for infringement. One hypothesis is that all manga
1194 artists may be better off collectively if they set aside their
1195 individual self-interest and decide not to press their legal
1196 rights. This is essentially a prisoner's dilemma solved.</span>»</span>
1197 </p></div><div id="ftn.idp39086176" class="footnote"><p><a href="#idp39086176" class="para"><sup class="para">[25] </sup></a>
1198
1199 <a class="indexterm" name="idp39086816"></a>
1200 The term <em class="citetitle">intellectual property</em> is of relatively recent origin. See
1201 Siva Vaidhyanathan, <em class="citetitle">Copyrights and Copywrongs</em>, 11 (New York: New York
1202 University Press, 2001). See also Lawrence Lessig, <em class="citetitle">The Future of Ideas</em>
1203 (New York: Random House, 2001), 293 n. 26. The term accurately
1204 describes a set of <span class="quote">«<span class="quote">property</span>»</span> rights &#8212; copyright, patents,
1205 trademark, and trade-secret &#8212; but the nature of those rights is
1206 very different.
1207 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="mere-copyists"></a>Chapter 2. Chapter Two: <span class="quote">«<span class="quote">Mere Copyists</span>»</span></h2></div></div></div><a class="indexterm" name="idp39123632"></a><a class="indexterm" name="idxcameratechnology"></a><a class="indexterm" name="idxphotography"></a><p>
1208 <span class="strong"><strong>In 1839</strong></span>, Louis Daguerre invented
1209 the first practical technology for producing what we would call
1210 <span class="quote">«<span class="quote">photographs.</span>»</span> Appropriately enough, they were called
1211 <span class="quote">«<span class="quote">daguerreotypes.</span>»</span> The process was complicated and
1212 expensive, and the field was thus limited to professionals and a few
1213 zealous and wealthy amateurs. (There was even an American Daguerre
1214 Association that helped regulate the industry, as do all such
1215 associations, by keeping competition down so as to keep prices up.)
1216 </p><a class="indexterm" name="idp39129056"></a><p>
1217 Yet despite high prices, the demand for daguerreotypes was strong.
1218 This pushed inventors to find simpler and cheaper ways to make
1219 <span class="quote">«<span class="quote">automatic pictures.</span>»</span> William Talbot soon discovered a process for
1220 making <span class="quote">«<span class="quote">negatives.</span>»</span> But because the negatives were glass, and had to
1221 be kept wet, the process still remained expensive and cumbersome. In
1222 the 1870s, dry plates were developed, making it easier to separate the
1223 taking of a picture from its developing. These were still plates of
1224 glass, and thus it was still not a process within reach of most
1225 amateurs.
1226 </p><a class="indexterm" name="idxeastmangeorge"></a><p>
1227 The technological change that made mass photography possible
1228 didn't happen until 1888, and was the creation of a single man. George
1229
1230 Eastman, himself an amateur photographer, was frustrated by the
1231 technology of photographs made with plates. In a flash of insight (so
1232 to speak), Eastman saw that if the film could be made to be flexible,
1233 it could be held on a single spindle. That roll could then be sent to
1234 a developer, driving the costs of photography down substantially. By
1235 lowering the costs, Eastman expected he could dramatically broaden the
1236 population of photographers.
1237 </p><a class="indexterm" name="idxkodakcameras"></a><a class="indexterm" name="idxkodakprimertheeastman"></a><p>
1238 Eastman developed flexible, emulsion-coated paper film and placed
1239 rolls of it in small, simple cameras: the Kodak. The device was
1240 marketed on the basis of its simplicity. <span class="quote">«<span class="quote">You press the button and we
1241 do the rest.</span>»</span><a href="#ftn.idp39137104" class="footnote" name="idp39137104"><sup class="footnote">[26]</sup></a> As he described in <em class="citetitle">The Kodak Primer</em>:
1242 </p><div class="blockquote"><blockquote class="blockquote"><p>
1243 The principle of the Kodak system is the separation of the work that
1244 any person whomsoever can do in making a photograph, from the work
1245 that only an expert can do. &#8230; We furnish anybody, man, woman or
1246 child, who has sufficient intelligence to point a box straight and
1247 press a button, with an instrument which altogether removes from the
1248 practice of photography the necessity for exceptional facilities or,
1249 in fact, any special knowledge of the art. It can be employed without
1250 preliminary study, without a darkroom and without
1251 chemicals.<a href="#ftn.idp39060304" class="footnote" name="idp39060304"><sup class="footnote">[27]</sup></a>
1252 </p></blockquote></div><a class="indexterm" name="idp39142784"></a><p>
1253 For $25, anyone could make pictures. The camera came preloaded
1254 with film, and when it had been used, the camera was returned to an
1255 Eastman factory, where the film was developed. Over time, of course,
1256 the cost of the camera and the ease with which it could be used both
1257 improved. Roll film thus became the basis for the explosive growth of
1258 popular photography. Eastman's camera first went on sale in 1888; one
1259 year later, Kodak was printing more than six thousand negatives a day.
1260 From 1888 through 1909, while industrial production was rising by 4.7
1261 percent, photographic equipment and material sales increased by 11
1262 percent.<a href="#ftn.idp39144656" class="footnote" name="idp39144656"><sup class="footnote">[28]</sup></a> Eastman Kodak's sales during the same period experienced
1263 an average annual increase of over 17 percent.<a href="#ftn.idp39145552" class="footnote" name="idp39145552"><sup class="footnote">[29]</sup></a>
1264 </p><a class="indexterm" name="idp39146448"></a><p>
1265
1266
1267 The real significance of Eastman's invention, however, was not
1268 economic. It was social. Professional photography gave individuals a
1269 glimpse of places they would never otherwise see. Amateur photography
1270 gave them the ability to record their own lives in a way they had
1271 never been able to do before. As author Brian Coe notes, <span class="quote">«<span class="quote">For the
1272 first time the snapshot album provided the man on the street with a
1273 permanent record of his family and its activities. &#8230; For the first
1274 time in history there exists an authentic visual record of the
1275 appearance and activities of the common man made without [literary]
1276 interpretation or bias.</span>»</span><a href="#ftn.idp39139536" class="footnote" name="idp39139536"><sup class="footnote">[30]</sup></a>
1277 </p><a class="indexterm" name="idp39149536"></a><a class="indexterm" name="idp39150544"></a><p>
1278 In this way, the Kodak camera and film were technologies of
1279 expression.  The pencil or paintbrush was also a technology of
1280 expression, of course. But it took years of training before they could
1281 be deployed by amateurs in any useful or effective way. With the
1282 Kodak, expression was possible much sooner and more simply. The
1283 barrier to expression was lowered. Snobs would sneer at its <span class="quote">«<span class="quote">quality</span>»</span>;
1284 professionals would discount it as irrelevant. But watch a child study
1285 how best to frame a picture and you get a sense of the experience of
1286 creativity that the Kodak enabled. Democratic tools gave ordinary
1287 people a way to express themselves more easily than any tools could
1288 have before.
1289 </p><a class="indexterm" name="idp39153024"></a><a class="indexterm" name="idxpermissionsphotographyexemptedfrom"></a><p>
1290 What was required for this technology to flourish? Obviously,
1291 Eastman's genius was an important part. But also important was the
1292 legal environment within which Eastman's invention grew. For early in
1293 the history of photography, there was a series of judicial decisions
1294 that could well have changed the course of photography substantially.
1295 Courts were asked whether the photographer, amateur or professional,
1296 required permission before he could capture and print whatever image
1297 he wanted. Their answer was no.<a href="#ftn.idp39156272" class="footnote" name="idp39156272"><sup class="footnote">[31]</sup></a>
1298 </p><a class="indexterm" name="idp39159472"></a><a class="indexterm" name="idxdisneywalt4"></a><a class="indexterm" name="idximagesownershipof"></a><p>
1299 The arguments in favor of requiring permission will sound surprisingly
1300 familiar. The photographer was <span class="quote">«<span class="quote">taking</span>»</span> something from the person or
1301 building whose photograph he shot&#8212;pirating something of
1302 value. Some even thought he was taking the target's soul. Just as
1303 Disney was not free to take the pencils that his animators used to
1304 draw
1305
1306 Mickey, so, too, should these photographers not be free to take images
1307 that they thought valuable.
1308 </p><a class="indexterm" name="idp39164480"></a><a class="indexterm" name="idp39165232"></a><a class="indexterm" name="idxcameratechnology2"></a><p>
1309 On the other side was an argument that should be familiar, as well.
1310 Sure, there may be something of value being used. But citizens should
1311 have the right to capture at least those images that stand in public view.
1312 (Louis Brandeis, who would become a Supreme Court Justice, thought
1313 the rule should be different for images from private spaces.<a href="#ftn.idp39167824" class="footnote" name="idp39167824"><sup class="footnote">[32]</sup></a>) It may be that this means that the photographer
1314 gets something for nothing. Just as Disney could take inspiration from
1315 <em class="citetitle">Steamboat Bill, Jr</em>. or the Brothers Grimm, the photographer should be
1316 free to capture an image without compensating the source.
1317 </p><a class="indexterm" name="idp39171776"></a><p>
1318 Fortunately for Mr. Eastman, and for photography in general, these
1319 early decisions went in favor of the pirates. In general, no
1320 permission would be required before an image could be captured and
1321 shared with others. Instead, permission was presumed. Freedom was the
1322 default.  (The law would eventually craft an exception for famous
1323 people: commercial photographers who snap pictures of famous people
1324 for commercial purposes have more restrictions than the rest of
1325 us. But in the ordinary case, the image can be captured without
1326 clearing the rights to do the capturing.<a href="#ftn.idp39173600" class="footnote" name="idp39173600"><sup class="footnote">[33]</sup></a>)
1327 </p><a class="indexterm" name="idp39176800"></a><a class="indexterm" name="idp39177552"></a><p>
1328 We can only speculate about how photography would have developed had
1329 the law gone the other way. If the presumption had been against the
1330 photographer, then the photographer would have had to demonstrate
1331 permission. Perhaps Eastman Kodak would have had to demonstrate
1332 permission, too, before it developed the film upon which images were
1333 captured. After all, if permission were not granted, then Eastman
1334 Kodak would be benefiting from the <span class="quote">«<span class="quote">theft</span>»</span> committed by the
1335 photographer. Just as Napster benefited from the copyright
1336 infringements committed by Napster users, Kodak would be benefiting
1337 from the <span class="quote">«<span class="quote">image-right</span>»</span> infringement of its photographers. We could
1338 imagine the law then requiring that some form of permission be
1339 demonstrated before a company developed pictures. We could imagine a
1340 system developing to demonstrate that permission.
1341 </p><a class="indexterm" name="idp39180320"></a><a class="indexterm" name="idxcameratechnology3"></a><a class="indexterm" name="idp39182528"></a><a class="indexterm" name="idp39183536"></a><p>
1342
1343
1344 But though we could imagine this system of permission, it would be
1345 very hard to see how photography could have flourished as it did if
1346 the requirement for permission had been built into the rules that
1347 govern it. Photography would have existed. It would have grown in
1348 importance over time. Professionals would have continued to use the
1349 technology as they did&#8212;since professionals could have more
1350 easily borne the burdens of the permission system. But the spread of
1351 photography to ordinary people would not have occurred. Nothing like
1352 that growth would have been realized. And certainly, nothing like that
1353 growth in a democratic technology of expression would have been
1354 realized.
1355 </p><a class="indexterm" name="idp39185056"></a><a class="indexterm" name="idp39186864"></a><a class="indexterm" name="idp39187840"></a><a class="indexterm" name="idp39188816"></a><a class="indexterm" name="idp39189792"></a><a class="indexterm" name="idxjustthink"></a><p>
1356 <span class="strong"><strong>If you drive</strong></span> through San
1357 Francisco's Presidio, you might see two gaudy yellow school buses
1358 painted over with colorful and striking images, and the logo
1359 <span class="quote">«<span class="quote">Just Think!</span>»</span> in place of the name of a school. But
1360 there's little that's <span class="quote">«<span class="quote">just</span>»</span> cerebral in the projects
1361 that these busses enable.  These buses are filled with technologies
1362 that teach kids to tinker with film. Not the film of Eastman. Not even
1363 the film of your VCR.  Rather the <span class="quote">«<span class="quote">film</span>»</span> of digital
1364 cameras. Just Think!  is a project that enables kids to make films, as
1365 a way to understand and critique the filmed culture that they find all
1366 around them. Each year, these busses travel to more than thirty
1367 schools and enable three hundred to five hundred children to learn
1368 something about media by doing something with media.  By doing, they
1369 think. By tinkering, they learn.
1370 </p><a class="indexterm" name="idxeducationinmedialiteracy"></a><a class="indexterm" name="idxmedialiteracy"></a><a class="indexterm" name="idxexpressiontechnologiesofmedialiteracyand"></a><p>
1371 These buses are not cheap, but the technology they carry is
1372 increasingly so. The cost of a high-quality digital video system has
1373 fallen dramatically.  As one analyst puts it, <span class="quote">«<span class="quote">Five years ago, a good
1374 real-time digital video editing system cost $25,000. Today you can get
1375 professional quality for $595.</span>»</span><a href="#ftn.idp39199840" class="footnote" name="idp39199840"><sup class="footnote">[34]</sup></a>
1376 These buses are filled with technology that would have cost hundreds
1377 of thousands just ten years ago. And it is now feasible to imagine not
1378 just buses like this, but classrooms across the country where kids are
1379 learning more and more of something teachers call <span class="quote">«<span class="quote">media literacy.</span>»</span>
1380 </p><a class="indexterm" name="idp39202528"></a><p>
1381
1382 <span class="quote">«<span class="quote">Media literacy,</span>»</span> as Dave Yanofsky, the executive director of Just
1383 Think!, puts it, <span class="quote">«<span class="quote">is the ability &#8230; to understand, analyze, and
1384 deconstruct media images. Its aim is to make [kids] literate about the
1385 way media works, the way it's constructed, the way it's delivered, and
1386 the way people access it.</span>»</span>
1387 </p><a class="indexterm" name="idp39204992"></a><p>
1388 This may seem like an odd way to think about <span class="quote">«<span class="quote">literacy.</span>»</span> For most
1389 people, literacy is about reading and writing. Faulkner and Hemingway
1390 and noticing split infinitives are the things that <span class="quote">«<span class="quote">literate</span>»</span> people know
1391 about.
1392 </p><a class="indexterm" name="idp39207264"></a><a class="indexterm" name="idp39208016"></a><a class="indexterm" name="idp39208768"></a><p>
1393 Maybe. But in a world where children see on average 390 hours of
1394 television commercials per year, or between 20,000 and 45,000
1395 commercials generally,<a href="#ftn.idp39210192" class="footnote" name="idp39210192"><sup class="footnote">[35]</sup></a>
1396 it is increasingly important to understand the <span class="quote">«<span class="quote">grammar</span>»</span> of media. For
1397 just as there is a grammar for the written word, so, too, is there one
1398 for media. And just as kids learn how to write by writing lots of
1399 terrible prose, kids learn how to write media by constructing lots of
1400 (at least at first) terrible media.
1401 </p><p>
1402 A growing field of academics and activists sees this form of literacy
1403 as crucial to the next generation of culture. For though anyone who
1404 has written understands how difficult writing is&#8212;how difficult
1405 it is to sequence the story, to keep a reader's attention, to craft
1406 language to be understandable&#8212;few of us have any real sense of
1407 how difficult media is. Or more fundamentally, few of us have a sense
1408 of how media works, how it holds an audience or leads it through a
1409 story, how it triggers emotion or builds suspense.
1410 </p><a class="indexterm" name="idp39213152"></a><p>
1411 It took filmmaking a generation before it could do these things well.
1412 But even then, the knowledge was in the filming, not in writing about
1413 the film. The skill came from experiencing the making of a film, not
1414 from reading a book about it. One learns to write by writing and then
1415 reflecting upon what one has written. One learns to write with images
1416 by making them and then reflecting upon what one has created.
1417 </p><a class="indexterm" name="idxdaleyelizabeth"></a><a class="indexterm" name="idp39216928"></a><p>
1418 This grammar has changed as media has changed. When it was just film,
1419 as Elizabeth Daley, executive director of the University of Southern
1420 California's Annenberg Center for Communication and dean of the
1421
1422
1423 USC School of Cinema-Television, explained to me, the grammar was
1424 about <span class="quote">«<span class="quote">the placement of objects, color, &#8230; rhythm, pacing, and
1425 texture.</span>»</span><a href="#ftn.idp39204512" class="footnote" name="idp39204512"><sup class="footnote">[36]</sup></a>
1426 But as computers open up an interactive space where a story is
1427 <span class="quote">«<span class="quote">played</span>»</span> as well as experienced, that grammar changes. The simple
1428 control of narrative is lost, and so other techniques are necessary. Author
1429 Michael Crichton had mastered the narrative of science fiction.
1430 But when he tried to design a computer game based on one of his
1431 works, it was a new craft he had to learn. How to lead people through
1432 a game without their feeling they have been led was not obvious, even
1433 to a wildly successful author.<a href="#ftn.idp39222176" class="footnote" name="idp39222176"><sup class="footnote">[37]</sup></a>
1434 </p><a class="indexterm" name="idp39225088"></a><p>
1435 This skill is precisely the craft a filmmaker learns. As Daley
1436 describes, <span class="quote">«<span class="quote">people are very surprised about how they are led through a
1437 film. [I]t is perfectly constructed to keep you from seeing it, so you
1438 have no idea. If a filmmaker succeeds you do not know how you were
1439 led.</span>»</span> If you know you were led through a film, the film has failed.
1440 </p><p>
1441 Yet the push for an expanded literacy&#8212;one that goes beyond text
1442 to include audio and visual elements&#8212;is not about making better
1443 film directors.  The aim is not to improve the profession of
1444 filmmaking at all.  Instead, as Daley explained,
1445 </p><div class="blockquote"><blockquote class="blockquote"><p>
1446 From my perspective, probably the most important digital divide
1447 is not access to a box. It's the ability to be empowered with the
1448 language that that box works in. Otherwise only a very few people
1449 can write with this language, and all the rest of us are reduced to
1450 being read-only.
1451 </p></blockquote></div><p>
1452 <span class="quote">«<span class="quote">Read-only.</span>»</span> Passive recipients of culture produced elsewhere.
1453 Couch potatoes. Consumers. This is the world of media from the
1454 twentieth century.
1455 </p><p>
1456 The twenty-first century could be different. This is the crucial
1457 point: It could be both read and write. Or at least reading and better
1458 understanding the craft of writing. Or best, reading and understanding
1459 the tools that enable the writing to lead or mislead. The aim of any
1460 literacy,
1461
1462 and this literacy in particular, is to <span class="quote">«<span class="quote">empower people to choose the
1463 appropriate language for what they need to create or
1464 express.</span>»</span><a href="#ftn.idp39230816" class="footnote" name="idp39230816"><sup class="footnote">[38]</sup></a> It is to enable students <span class="quote">«<span class="quote">to communicate in the
1465 language of the twenty-first century.</span>»</span><a href="#ftn.idp39232800" class="footnote" name="idp39232800"><sup class="footnote">[39]</sup></a>
1466 </p><a class="indexterm" name="idxbarishstephanie"></a><p>
1467 As with any language, this language comes more easily to some than to
1468 others. It doesn't necessarily come more easily to those who excel in
1469 written language. Daley and Stephanie Barish, director of the
1470 Institute for Multimedia Literacy at the Annenberg Center, describe
1471 one particularly poignant example of a project they ran in a high
1472 school.  The high school was a very poor inner-city Los Angeles
1473 school. In all the traditional measures of success, this school was a
1474 failure. But Daley and Barish ran a program that gave kids an
1475 opportunity to use film to express meaning about something the
1476 students know something about&#8212;gun violence.
1477 </p><a class="indexterm" name="idp39235184"></a><p>
1478 The class was held on Friday afternoons, and it created a relatively
1479 new problem for the school. While the challenge in most classes was
1480 getting the kids to come, the challenge in this class was keeping them
1481 away. The <span class="quote">«<span class="quote">kids were showing up at 6 A.M. and leaving at 5 at night,</span>»</span>
1482 said Barish. They were working harder than in any other class to do
1483 what education should be about&#8212;learning how to express themselves.
1484 </p><p>
1485 Using whatever <span class="quote">«<span class="quote">free web stuff they could find,</span>»</span> and relatively simple
1486 tools to enable the kids to mix <span class="quote">«<span class="quote">image, sound, and text,</span>»</span> Barish said
1487 this class produced a series of projects that showed something about
1488 gun violence that few would otherwise understand. This was an issue
1489 close to the lives of these students. The project <span class="quote">«<span class="quote">gave them a tool
1490 and empowered them to be able to both understand it and talk about
1491 it,</span>»</span> Barish explained. That tool succeeded in creating
1492 expression&#8212;far more successfully and powerfully than could have
1493 been created using only text. <span class="quote">«<span class="quote">If you had said to these students, <span class="quote">&#8216;<span class="quote">you
1494 have to do it in text,</span>&#8217;</span> they would've just thrown their hands up and
1495 gone and done something else,</span>»</span> Barish described, in part, no doubt,
1496 because expressing themselves in text is not something these students
1497 can do well. Yet neither is text a form in which
1498 <span class="emphasis"><em>these</em></span> ideas can be expressed well. The power of
1499 this message depended upon its connection to this form of expression.
1500 </p><a class="indexterm" name="idp39242224"></a><a class="indexterm" name="idxdaleyelizabeth2"></a><p>
1501
1502
1503 <span class="quote">«<span class="quote">But isn't education about teaching kids to write?</span>»</span> I asked. In part,
1504 of course, it is. But why are we teaching kids to write? Education,
1505 Daley explained, is about giving students a way of <span class="quote">«<span class="quote">constructing
1506 meaning.</span>»</span>  To say that that means just writing is like saying teaching
1507 writing is only about teaching kids how to spell. Text is one
1508 part&#8212;and increasingly, not the most powerful part&#8212;of
1509 constructing meaning. As Daley explained in the most moving part of
1510 our interview,
1511 </p><div class="blockquote"><blockquote class="blockquote"><p>
1512 What you want is to give these students ways of constructing
1513 meaning. If all you give them is text, they're not going to do it.
1514 Because they can't. You know, you've got Johnny who can look at a
1515 video, he can play a video game, he can do graffiti all over your
1516 walls, he can take your car apart, and he can do all sorts of other
1517 things. He just can't read your text. So Johnny comes to school and
1518 you say, <span class="quote">«<span class="quote">Johnny, you're illiterate. Nothing you can do matters.</span>»</span>
1519 Well, Johnny then has two choices: He can dismiss you or he [can]
1520 dismiss himself. If his ego is healthy at all, he's going to dismiss
1521 you. [But i]nstead, if you say, <span class="quote">«<span class="quote">Well, with all these things that you
1522 can do, let's talk about this issue. Play for me music that you think
1523 reflects that, or show me images that you think reflect that, or draw
1524 for me something that reflects that.</span>»</span> Not by giving a kid a video
1525 camera and &#8230; saying, <span class="quote">«<span class="quote">Let's go have fun with the video camera and
1526 make a little movie.</span>»</span> But instead, really help you take these elements
1527 that you understand, that are your language, and construct meaning
1528 about the topic.&#8230;
1529 </p><a class="indexterm" name="idp39248688"></a><p>
1530 That empowers enormously. And then what happens, of
1531 course, is eventually, as it has happened in all these classes, they
1532 bump up against the fact, <span class="quote">«<span class="quote">I need to explain this and I really need
1533 to write something.</span>»</span> And as one of the teachers told Stephanie,
1534 they would rewrite a paragraph 5, 6, 7, 8 times, till they got it right.
1535 </p><p>
1536 Because they needed to. There was a reason for doing it. They
1537 needed to say something, as opposed to just jumping through
1538 your hoops. They actually needed to use a language that they
1539
1540 didn't speak very well. But they had come to understand that they
1541 had a lot of power with this language.
1542 </p></blockquote></div><a class="indexterm" name="idp39251984"></a><a class="indexterm" name="idp39252960"></a><a class="indexterm" name="idp39253936"></a><a class="indexterm" name="idp39254912"></a><a class="indexterm" name="idxseptemberterroristattacksof"></a><a class="indexterm" name="idp39257120"></a><a class="indexterm" name="idxnewscoverage"></a><p>
1543 <span class="strong"><strong>When two planes</strong></span> crashed into the
1544 World Trade Center, another into the Pentagon, and a fourth into a
1545 Pennsylvania field, all media around the world shifted to this
1546 news. Every moment of just about every day for that week, and for
1547 weeks after, television in particular, and media generally, retold the
1548 story of the events we had just witnessed. The telling was a
1549 retelling, because we had seen the events that were described. The
1550 genius of this awful act of terrorism was that the delayed second
1551 attack was perfectly timed to assure that the whole world would be
1552 watching.
1553 </p><p>
1554 These retellings had an increasingly familiar feel. There was music
1555 scored for the intermissions, and fancy graphics that flashed across
1556 the screen. There was a formula to interviews. There was <span class="quote">«<span class="quote">balance,</span>»</span>
1557 and seriousness. This was news choreographed in the way we have
1558 increasingly come to expect it, <span class="quote">«<span class="quote">news as entertainment,</span>»</span> even if the
1559 entertainment is tragedy.
1560 </p><a class="indexterm" name="idp39262160"></a><a class="indexterm" name="idp39262912"></a><a class="indexterm" name="idp39263664"></a><a class="indexterm" name="idp39264416"></a><a class="indexterm" name="idxinternetnewseventson"></a><p>
1561 But in addition to this produced news about the <span class="quote">«<span class="quote">tragedy of September
1562 11,</span>»</span> those of us tied to the Internet came to see a very different
1563 production as well. The Internet was filled with accounts of the same
1564 events. Yet these Internet accounts had a very different flavor. Some
1565 people constructed photo pages that captured images from around the
1566 world and presented them as slide shows with text. Some offered open
1567 letters. There were sound recordings. There was anger and frustration.
1568 There were attempts to provide context. There was, in short, an
1569 extraordinary worldwide barn raising, in the sense Mike Godwin uses
1570 the term in his book <em class="citetitle">Cyber Rights</em>, around a news event that had
1571 captured the attention of the world. There was ABC and CBS, but there
1572 was also the Internet.
1573 </p><a class="indexterm" name="idp39268528"></a><p>
1574 I don't mean simply to praise the Internet&#8212;though I do think the
1575 people who supported this form of speech should be praised. I mean
1576 instead to point to a significance in this form of speech. For like a
1577 Kodak, the Internet enables people to capture images. And like in a
1578 movie
1579
1580 by a student on the <span class="quote">«<span class="quote">Just Think!</span>»</span> bus, the visual images could be mixed
1581 with sound or text.
1582 </p><p>
1583 But unlike any technology for simply capturing images, the Internet
1584 allows these creations to be shared with an extraordinary number of
1585 people, practically instantaneously. This is something new in our
1586 tradition&#8212;not just that culture can be captured mechanically,
1587 and obviously not just that events are commented upon critically, but
1588 that this mix of captured images, sound, and commentary can be widely
1589 spread practically instantaneously.
1590 </p><a class="indexterm" name="idp39271152"></a><a class="indexterm" name="idxblogsweblogs"></a><a class="indexterm" name="idxinternetblogson"></a><a class="indexterm" name="idxweblogsblogs"></a><p>
1591 September 11 was not an aberration. It was a beginning. Around the
1592 same time, a form of communication that has grown dramatically was
1593 just beginning to come into public consciousness: the Web-log, or
1594 blog. The blog is a kind of public diary, and within some cultures,
1595 such as in Japan, it functions very much like a diary. In those
1596 cultures, it records private facts in a public way&#8212;it's a kind
1597 of electronic <em class="citetitle">Jerry Springer</em>, available anywhere in the world.
1598 </p><a class="indexterm" name="idp39277888"></a><a class="indexterm" name="idp39278864"></a><a class="indexterm" name="idxinternetpublicdiscourseconductedon"></a><p>
1599 But in the United States, blogs have taken on a very different
1600 character.  There are some who use the space simply to talk about
1601 their private life. But there are many who use the space to engage in
1602 public discourse. Discussing matters of public import, criticizing
1603 others who are mistaken in their views, criticizing politicians about
1604 the decisions they make, offering solutions to problems we all see:
1605 blogs create the sense of a virtual public meeting, but one in which
1606 we don't all hope to be there at the same time and in which
1607 conversations are not necessarily linked. The best of the blog entries
1608 are relatively short; they point directly to words used by others,
1609 criticizing with or adding to them.  They are arguably the most
1610 important form of unchoreographed public discourse that we have.
1611 </p><a class="indexterm" name="idxdemocracyintechnologiesofexpression"></a><a class="indexterm" name="idxelections"></a><a class="indexterm" name="idxexpressiontechnologiesofdemocratic"></a><p>
1612 That's a strong statement. Yet it says as much about our democracy as
1613 it does about blogs. This is the part of America that is most
1614 difficult for those of us who love America to accept: Our democracy
1615 has atrophied.  Of course we have elections, and most of the time the
1616 courts allow those elections to count. A relatively small number of
1617 people vote
1618
1619 in those elections. The cycle of these elections has become totally
1620 professionalized and routinized. Most of us think this is democracy.
1621 </p><a class="indexterm" name="idp39287680"></a><a class="indexterm" name="idp39288656"></a><a class="indexterm" name="idp39289632"></a><a class="indexterm" name="idp39290608"></a><a class="indexterm" name="idxdemocracypublicdiscoursein"></a><a class="indexterm" name="idp39292848"></a><p>
1622 But democracy has never just been about elections. Democracy
1623 means rule by the people, but rule means something more than mere
1624 elections. In our tradition, it also means control through reasoned
1625 discourse.  This was the idea that captured the imagination of Alexis
1626 de Tocqueville, the nineteenth-century French lawyer who wrote the
1627 most important account of early <span class="quote">«<span class="quote">Democracy in America.</span>»</span> It wasn't
1628 popular elections that fascinated him&#8212;it was the jury, an
1629 institution that gave ordinary people the right to choose life or
1630 death for other citizens.  And most fascinating for him was that the
1631 jury didn't just vote about the outcome they would impose. They
1632 deliberated. Members argued about the <span class="quote">«<span class="quote">right</span>»</span> result; they tried to
1633 persuade each other of the <span class="quote">«<span class="quote">right</span>»</span> result, and in criminal cases at
1634 least, they had to agree upon a unanimous result for the process to
1635 come to an end.<a href="#ftn.idp39295840" class="footnote" name="idp39295840"><sup class="footnote">[40]</sup></a>
1636 </p><a class="indexterm" name="idp39297120"></a><p>
1637 Yet even this institution flags in American life today. And in its
1638 place, there is no systematic effort to enable citizen deliberation. Some
1639 are pushing to create just such an institution.<a href="#ftn.idp39298560" class="footnote" name="idp39298560"><sup class="footnote">[41]</sup></a>
1640 And in some towns in New England, something close to deliberation
1641 remains. But for most of us for most of the time, there is no time or
1642 place for <span class="quote">«<span class="quote">democratic deliberation</span>»</span> to occur.
1643 </p><a class="indexterm" name="idxpoliticaldiscourse"></a><p>
1644 More bizarrely, there is generally not even permission for it to
1645 occur.  We, the most powerful democracy in the world, have developed a
1646 strong norm against talking about politics. It's fine to talk about
1647 politics with people you agree with. But it is rude to argue about
1648 politics with people you disagree with. Political discourse becomes
1649 isolated, and isolated discourse becomes more extreme.<a href="#ftn.idp39302672" class="footnote" name="idp39302672"><sup class="footnote">[42]</sup></a> We say what our friends want to hear, and hear very
1650 little beyond what our friends say.
1651 </p><a class="indexterm" name="idxblogsweblogs2"></a><a class="indexterm" name="idp39305296"></a><a class="indexterm" name="idxinternetblogson2"></a><a class="indexterm" name="idxweblogsblogs2"></a><a class="indexterm" name="idp39308768"></a><a class="indexterm" name="idp39309744"></a><a class="indexterm" name="idp39310720"></a><p>
1652 Enter the blog. The blog's very architecture solves one part of this
1653 problem. People post when they want to post, and people read when they
1654 want to read. The most difficult time is synchronous time.
1655 Technologies that enable asynchronous communication, such as e-mail,
1656 increase the opportunity for communication. Blogs allow for public
1657
1658
1659 discourse without the public ever needing to gather in a single public
1660 place.
1661 </p><p>
1662 But beyond architecture, blogs also have solved the problem of
1663 norms. There's no norm (yet) in blog space not to talk about politics.
1664 Indeed, the space is filled with political speech, on both the right and
1665 the left. Some of the most popular sites are conservative or libertarian,
1666 but there are many of all political stripes. And even blogs that are not
1667 political cover political issues when the occasion merits.
1668 </p><a class="indexterm" name="idp39313600"></a><p>
1669 The significance of these blogs is tiny now, though not so tiny. The
1670 name Howard Dean may well have faded from the 2004 presidential race
1671 but for blogs. Yet even if the number of readers is small, the reading
1672 is having an effect.
1673 </p><a class="indexterm" name="idp39314976"></a><a class="indexterm" name="idp39315728"></a><a class="indexterm" name="idxmediablogpressureon"></a><a class="indexterm" name="idxinternetnewseventson2"></a><p>
1674 One direct effect is on stories that had a different life cycle in the
1675 mainstream media. The Trent Lott affair is an example. When Lott
1676 <span class="quote">«<span class="quote">misspoke</span>»</span> at a party for Senator Strom Thurmond, essentially praising
1677 Thurmond's segregationist policies, he calculated correctly that this
1678 story would disappear from the mainstream press within forty-eight
1679 hours. It did. But he didn't calculate its life cycle in blog
1680 space. The bloggers kept researching the story. Over time, more and
1681 more instances of the same <span class="quote">«<span class="quote">misspeaking</span>»</span> emerged. Finally, the story
1682 broke back into the mainstream press. In the end, Lott was forced to
1683 resign as senate majority leader.<a href="#ftn.idp39321152" class="footnote" name="idp39321152"><sup class="footnote">[43]</sup></a>
1684 </p><a class="indexterm" name="idxmediacommercialimperativesof"></a><p>
1685 This different cycle is possible because the same commercial pressures
1686 don't exist with blogs as with other ventures. Television and
1687 newspapers are commercial entities. They must work to keep attention.
1688 If they lose readers, they lose revenue. Like sharks, they must move
1689 on.
1690 </p><a class="indexterm" name="idp39324976"></a><a class="indexterm" name="idp39325952"></a><p>
1691 But bloggers don't have a similar constraint. They can obsess, they
1692 can focus, they can get serious. If a particular blogger writes a
1693 particularly interesting story, more and more people link to that
1694 story. And as the number of links to a particular story increases, it
1695 rises in the ranks of stories. People read what is popular; what is
1696 popular has been selected by a very democratic process of
1697 peer-generated rankings.
1698 </p><a class="indexterm" name="idp39327776"></a><a class="indexterm" name="idxjournalism"></a><a class="indexterm" name="idxwinerdave"></a><p>
1699 There's a second way, as well, in which blogs have a different cycle
1700
1701 from the mainstream press. As Dave Winer, one of the fathers of this
1702 movement and a software author for many decades, told me, another
1703 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
1704 have to take the conflict of interest</span>»</span> out of journalism, Winer told me.
1705 <span class="quote">«<span class="quote">An amateur journalist simply doesn't have a conflict of interest, or the
1706 conflict of interest is so easily disclosed that you know you can sort of
1707 get it out of the way.</span>»</span>
1708 </p><a class="indexterm" name="idp39333472"></a><a class="indexterm" name="idp39334224"></a><a class="indexterm" name="idp39335232"></a><a class="indexterm" name="idp39335984"></a><p>
1709 These conflicts become more important as media becomes more
1710 concentrated (more on this below). A concentrated media can hide more
1711 from the public than an unconcentrated media can&#8212;as CNN admitted
1712 it did after the Iraq war because it was afraid of the consequences to
1713 its own employees.<a href="#ftn.idp39294624" class="footnote" name="idp39294624"><sup class="footnote">[44]</sup></a>
1714 It also needs to sustain a more coherent account. (In the middle of
1715 the Iraq war, I read a post on the Internet from someone who was at
1716 that time listening to a satellite uplink with a reporter in Iraq. The
1717 New York headquarters was telling the reporter over and over that her
1718 account of the war was too bleak: She needed to offer a more
1719 optimistic story. When she told New York that wasn't warranted, they
1720 told her that <span class="emphasis"><em>they</em></span> were writing <span class="quote">«<span class="quote">the story.</span>»</span>)
1721 </p><a class="indexterm" name="idp39339712"></a><p>
1722 Blog space gives amateurs a way to enter the
1723 debate&#8212;<span class="quote">«<span class="quote">amateur</span>»</span> not in the sense of inexperienced,
1724 but in the sense of an Olympic athlete, meaning not paid by anyone to
1725 give their reports. It allows for a much broader range of input into a
1726 story, as reporting on the Columbia disaster revealed, when hundreds
1727 from across the southwest United States turned to the Internet to
1728 retell what they had seen.<a href="#ftn.idp39341680" class="footnote" name="idp39341680"><sup class="footnote">[45]</sup></a>
1729 And it drives readers to read across the range of accounts and
1730 <span class="quote">«<span class="quote">triangulate,</span>»</span> as Winer puts it, the truth. Blogs, Winer says, are
1731 <span class="quote">«<span class="quote">communicating directly with our constituency, and the middle man is
1732 out of it</span>»</span>&#8212;with all the benefits, and costs, that might entail.
1733 </p><p>
1734 Winer is optimistic about the future of journalism infected
1735 with blogs. <span class="quote">«<span class="quote">It's going to become an essential skill,</span>»</span> Winer predicts,
1736 for public figures and increasingly for private figures as well. It's
1737 not clear that <span class="quote">«<span class="quote">journalism</span>»</span> is happy about this&#8212;some journalists
1738 have been told to curtail their blogging.<a href="#ftn.idp39345200" class="footnote" name="idp39345200"><sup class="footnote">[46]</sup></a>
1739 But it is clear that we are still in transition. <span class="quote">«<span class="quote">A
1740
1741
1742 lot of what we are doing now is warm-up exercises,</span>»</span> Winer told me.
1743 There is a lot that must mature before this space has its mature effect.
1744 And as the inclusion of content in this space is the least infringing use
1745 of the Internet (meaning infringing on copyright), Winer said, <span class="quote">«<span class="quote">we will
1746 be the last thing that gets shut down.</span>»</span>
1747 </p><a class="indexterm" name="idp39354128"></a><p>
1748 This speech affects democracy. Winer thinks that happens because <span class="quote">«<span class="quote">you
1749 don't have to work for somebody who controls, [for] a gatekeeper.</span>»</span>
1750 That is true. But it affects democracy in another way as well.  As
1751 more and more citizens express what they think, and defend it in
1752 writing, that will change the way people understand public issues. It
1753 is easy to be wrong and misguided in your head. It is harder when the
1754 product of your mind can be criticized by others. Of course, it is a
1755 rare human who admits that he has been persuaded that he is wrong. But
1756 it is even rarer for a human to ignore when he has been proven wrong.
1757 The writing of ideas, arguments, and criticism improves democracy.
1758 Today there are probably a couple of million blogs where such writing
1759 happens. When there are ten million, there will be something
1760 extraordinary to report.
1761 </p><a class="indexterm" name="idp39356752"></a><a class="indexterm" name="idp39357728"></a><a class="indexterm" name="idp39358704"></a><a class="indexterm" name="idp39359680"></a><a class="indexterm" name="idp39360656"></a><a class="indexterm" name="idp39361632"></a><a class="indexterm" name="idp39362608"></a><a class="indexterm" name="idxbrownjohnseely"></a><a class="indexterm" name="idxadvertising1"></a><p>
1762 <span class="strong"><strong>John Seely Brown</strong></span> is the chief
1763 scientist of the Xerox Corporation.  His work, as his Web site
1764 describes it, is <span class="quote">«<span class="quote">human learning and &#8230; the creation of
1765 knowledge ecologies for creating &#8230; innovation.</span>»</span>
1766 </p><p>
1767 Brown thus looks at these technologies of digital creativity a bit
1768 differently from the perspectives I've sketched so far. I'm sure he
1769 would be excited about any technology that might improve
1770 democracy. But his real excitement comes from how these technologies
1771 affect learning.
1772 </p><p>
1773 As Brown believes, we learn by tinkering. When <span class="quote">«<span class="quote">a lot of us grew up,</span>»</span>
1774 he explains, that tinkering was done <span class="quote">«<span class="quote">on motorcycle engines, lawnmower
1775 engines, automobiles, radios, and so on.</span>»</span> But digital technologies
1776 enable a different kind of tinkering&#8212;with abstract ideas though
1777 in concrete form. The kids at Just Think! not only think about how a
1778 commercial portrays a politician; using digital technology, they can
1779
1780 take the commercial apart and manipulate it, tinker with it to see how
1781 it does what it does. Digital technologies launch a kind of bricolage,
1782 or <span class="quote">«<span class="quote">free collage,</span>»</span> as Brown calls it. Many get to add to or transform
1783 the tinkering of many others.
1784 </p><p>
1785 The best large-scale example of this kind of tinkering so far is free
1786 software or open-source software (FS/OSS). FS/OSS is software whose
1787 source code is shared. Anyone can download the technology that makes a
1788 FS/OSS program run. And anyone eager to learn how a particular bit of
1789 FS/OSS technology works can tinker with the code.
1790 </p><p>
1791 This opportunity creates a <span class="quote">«<span class="quote">completely new kind of learning platform,</span>»</span>
1792 as Brown describes. <span class="quote">«<span class="quote">As soon as you start doing that, you &#8230;
1793 unleash a free collage on the community, so that other people can
1794 start looking at your code, tinkering with it, trying it out, seeing
1795 if they can improve it.</span>»</span> Each effort is a kind of
1796 apprenticeship. <span class="quote">«<span class="quote">Open source becomes a major apprenticeship platform.</span>»</span>
1797 </p><p>
1798 In this process, <span class="quote">«<span class="quote">the concrete things you tinker with are abstract.
1799 They are code.</span>»</span> Kids are <span class="quote">«<span class="quote">shifting to the ability to tinker in the
1800 abstract, and this tinkering is no longer an isolated activity that
1801 you're doing in your garage. You are tinkering with a community
1802 platform. &#8230;  You are tinkering with other people's stuff. The more
1803 you tinker the more you improve.</span>»</span> The more you improve, the more you
1804 learn.
1805 </p><p>
1806 This same thing happens with content, too. And it happens in the same
1807 collaborative way when that content is part of the Web. As Brown puts
1808 it, <span class="quote">«<span class="quote">the Web [is] the first medium that truly honors multiple forms of
1809 intelligence.</span>»</span> Earlier technologies, such as the typewriter or word
1810 processors, helped amplify text. But the Web amplifies much more than
1811 text. <span class="quote">«<span class="quote">The Web &#8230; says if you are musical, if you are artistic, if
1812 you are visual, if you are interested in film &#8230; [then] there is a
1813 lot you can start to do on this medium. [It] can now amplify and honor
1814 these multiple forms of intelligence.</span>»</span>
1815 </p><a class="indexterm" name="idp39376576"></a><a class="indexterm" name="idp39377552"></a><p>
1816 Brown is talking about what Elizabeth Daley, Stephanie Barish, and
1817 Just Think! teach: that this tinkering with culture teaches as well
1818
1819
1820 as creates. It develops talents differently, and it builds a different
1821 kind of recognition.
1822 </p><p>
1823 Yet the freedom to tinker with these objects is not guaranteed.
1824 Indeed, as we'll see through the course of this book, that freedom is
1825 increasingly highly contested. While there's no doubt that your father
1826 had the right to tinker with the car engine, there's great doubt that
1827 your child will have the right to tinker with the images she finds all
1828 around.  The law and, increasingly, technology interfere with a
1829 freedom that technology, and curiosity, would otherwise ensure.
1830 </p><p>
1831 These restrictions have become the focus of researchers and scholars.
1832 Professor Ed Felten of Princeton (whom we'll see more of in chapter
1833 <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>)
1834 has developed a powerful argument in favor of the <span class="quote">«<span class="quote">right to
1835 tinker</span>»</span> as it applies to computer science and to knowledge in
1836 general.<a href="#ftn.idp39381712" class="footnote" name="idp39381712"><sup class="footnote">[47]</sup></a>
1837 But Brown's concern is earlier, or younger, or more fundamental. It is
1838 about the learning that kids can do, or can't do, because of the law.
1839 </p><p>
1840 <span class="quote">«<span class="quote">This is where education in the twenty-first century is going,</span>»</span> Brown
1841 explains. We need to <span class="quote">«<span class="quote">understand how kids who grow up digital think
1842 and want to learn.</span>»</span>
1843 </p><p>
1844 <span class="quote">«<span class="quote">Yet,</span>»</span> as Brown continued, and as the balance of this book will
1845 evince, <span class="quote">«<span class="quote">we are building a legal system that completely suppresses the
1846 natural tendencies of today's digital kids. &#8230; We're building an
1847 architecture that unleashes 60 percent of the brain [and] a legal
1848 system that closes down that part of the brain.</span>»</span>
1849 </p><p>
1850 We're building a technology that takes the magic of Kodak, mixes
1851 moving images and sound, and adds a space for commentary and an
1852 opportunity to spread that creativity everywhere. But we're building
1853 the law to close down that technology.
1854 </p><a class="indexterm" name="idp39387136"></a><a class="indexterm" name="idp39387888"></a><p>
1855 <span class="quote">«<span class="quote">No way to run a culture,</span>»</span> as Brewster Kahle, whom we'll meet in
1856 chapter <a class="xref" href="#collectors" title="Chapter 9. Chapter Nine: Collectors">9</a>,
1857 quipped to me in a rare moment of despondence.
1858 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp39137104" class="footnote"><p><a href="#idp39137104" class="para"><sup class="para">[26] </sup></a>
1859
1860 Reese V. Jenkins, <em class="citetitle">Images and Enterprise</em> (Baltimore: Johns Hopkins University Press, 1975), 112.
1861 </p></div><div id="ftn.idp39060304" class="footnote"><p><a href="#idp39060304" class="para"><sup class="para">[27] </sup></a>
1862
1863 <a class="indexterm" name="idp39141264"></a>
1864 Brian Coe, <em class="citetitle">The Birth of Photography</em> (New York: Taplinger Publishing,
1865 1977), 53.
1866 </p></div><div id="ftn.idp39144656" class="footnote"><p><a href="#idp39144656" class="para"><sup class="para">[28] </sup></a>
1867
1868 Jenkins, 177.
1869 </p></div><div id="ftn.idp39145552" class="footnote"><p><a href="#idp39145552" class="para"><sup class="para">[29] </sup></a>
1870
1871 Based on a chart in Jenkins, p. 178.
1872 </p></div><div id="ftn.idp39139536" class="footnote"><p><a href="#idp39139536" class="para"><sup class="para">[30] </sup></a>
1873
1874 Coe, 58.
1875 </p></div><div id="ftn.idp39156272" class="footnote"><p><a href="#idp39156272" class="para"><sup class="para">[31] </sup></a>
1876
1877 For illustrative cases, see, for example, <em class="citetitle">Pavesich</em>
1878 v. <em class="citetitle">N.E. Life Ins. Co</em>., 50 S.E. 68 (Ga. 1905);
1879 <em class="citetitle">Foster-Milburn Co</em>. v. <em class="citetitle">Chinn</em>, 123090 S.W. 364, 366
1880 (Ky. 1909); <em class="citetitle">Corliss</em> v. <em class="citetitle">Walker</em>, 64 F. 280 (Mass.
1881 Dist. Ct. 1894).
1882 </p></div><div id="ftn.idp39167824" class="footnote"><p><a href="#idp39167824" class="para"><sup class="para">[32] </sup></a>
1883
1884 Samuel D. Warren and Louis D. Brandeis, <span class="quote">«<span class="quote">The Right to Privacy,</span>»</span>
1885 <em class="citetitle">Harvard Law Review</em> 4 (1890): 193.
1886 <a class="indexterm" name="idp39169360"></a>
1887 <a class="indexterm" name="idp39170112"></a>
1888 </p></div><div id="ftn.idp39173600" class="footnote"><p><a href="#idp39173600" class="para"><sup class="para">[33] </sup></a>
1889
1890 See Melville B. Nimmer, <span class="quote">«<span class="quote">The Right of Publicity,</span>»</span> <em class="citetitle">Law and Contemporary
1891 Problems</em> 19 (1954): 203; William L. Prosser, <span class="quote">«<span class="quote">Privacy,</span>»</span> <em class="citetitle">California Law
1892 Review</em> 48 (1960) 398&#8211;407; <em class="citetitle">White</em> v. <em class="citetitle">Samsung Electronics America,
1893 Inc</em>., 971 F.  2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951
1894 (1993).
1895 </p></div><div id="ftn.idp39199840" class="footnote"><p><a href="#idp39199840" class="para"><sup class="para">[34] </sup></a>
1896
1897 H. Edward Goldberg, <span class="quote">«<span class="quote">Essential Presentation Tools: Hardware and
1898 Software You Need to Create Digital Multimedia Presentations,</span>»</span>
1899 cadalyst, February 2002, available at
1900 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #7</a>.
1901 </p></div><div id="ftn.idp39210192" class="footnote"><p><a href="#idp39210192" class="para"><sup class="para">[35] </sup></a>
1902
1903 Judith Van Evra, <em class="citetitle">Television and Child Development</em> (Hillsdale, N.J.:
1904 Lawrence Erlbaum Associates, 1990); <span class="quote">«<span class="quote">Findings on Family and TV
1905 Study,</span>»</span> <em class="citetitle">Denver Post</em>, 25 May 1997, B6.
1906 </p></div><div id="ftn.idp39204512" class="footnote"><p><a href="#idp39204512" class="para"><sup class="para">[36] </sup></a>
1907
1908 Interview with Elizabeth Daley and Stephanie Barish, 13 December
1909 2002.
1910 <a class="indexterm" name="idp39219632"></a>
1911 <a class="indexterm" name="idp39220384"></a>
1912 </p></div><div id="ftn.idp39222176" class="footnote"><p><a href="#idp39222176" class="para"><sup class="para">[37] </sup></a>
1913
1914 See Scott Steinberg, <span class="quote">«<span class="quote">Crichton Gets Medieval on PCs,</span>»</span> E!online, 4
1915 November 2000, available at
1916 <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,
1917 available at
1918 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #9</a>.
1919 </p></div><div id="ftn.idp39230816" class="footnote"><p><a href="#idp39230816" class="para"><sup class="para">[38] </sup></a>
1920
1921 Interview with Daley and Barish.
1922 <a class="indexterm" name="idp39231584"></a>
1923 </p></div><div id="ftn.idp39232800" class="footnote"><p><a href="#idp39232800" class="para"><sup class="para">[39] </sup></a>
1924
1925 Ibid.
1926 </p></div><div id="ftn.idp39295840" class="footnote"><p><a href="#idp39295840" class="para"><sup class="para">[40] </sup></a>
1927
1928 See, for example, Alexis de Tocqueville, <em class="citetitle">Democracy in America</em>,
1929 bk. 1, trans.  Henry Reeve (New York: Bantam Books, 2000), ch. 16.
1930 </p></div><div id="ftn.idp39298560" class="footnote"><p><a href="#idp39298560" class="para"><sup class="para">[41] </sup></a>
1931
1932 Bruce Ackerman and James Fishkin, <span class="quote">«<span class="quote">Deliberation Day,</span>»</span> <em class="citetitle">Journal of
1933 Political Philosophy</em> 10 (2) (2002): 129.
1934 </p></div><div id="ftn.idp39302672" class="footnote"><p><a href="#idp39302672" class="para"><sup class="para">[42] </sup></a>
1935
1936 Cass Sunstein, <em class="citetitle">Republic.com</em> (Princeton: Princeton University Press, 2001),
1937 65&#8211;80, 175, 182, 183, 192.
1938 </p></div><div id="ftn.idp39321152" class="footnote"><p><a href="#idp39321152" class="para"><sup class="para">[43] </sup></a>
1939
1940 Noah Shachtman, <span class="quote">«<span class="quote">With Incessant Postings, a Pundit Stirs the
1941 Pot,</span>»</span> <em class="citetitle">New York Times</em>, 16 January 2003, G5.
1942 </p></div><div id="ftn.idp39294624" class="footnote"><p><a href="#idp39294624" class="para"><sup class="para">[44] </sup></a>
1943
1944 Telephone interview with David Winer, 16 April 2003.
1945 </p></div><div id="ftn.idp39341680" class="footnote"><p><a href="#idp39341680" class="para"><sup class="para">[45] </sup></a>
1946
1947 John Schwartz, <span class="quote">«<span class="quote">Loss of the Shuttle: The Internet; A Wealth of
1948 Information Online,</span>»</span> <em class="citetitle">New York Times</em>, 2 February 2003, A28; Staci
1949 D. Kramer, <span class="quote">«<span class="quote">Shuttle Disaster Coverage Mixed, but Strong Overall,</span>»</span>
1950 Online Journalism Review, 2 February 2003, available at
1951 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #10</a>.
1952 </p></div><div id="ftn.idp39345200" class="footnote"><p><a href="#idp39345200" class="para"><sup class="para">[46] </sup></a>
1953
1954 <a class="indexterm" name="idp39347632"></a>
1955 <a class="indexterm" name="idp39348384"></a>
1956 <a class="indexterm" name="idp39349136"></a>
1957 <a class="indexterm" name="idp39349888"></a>
1958 See Michael Falcone, <span class="quote">«<span class="quote">Does an Editor's Pencil Ruin a Web Log?</span>»</span> <em class="citetitle">New
1959 York Times</em>, 29 September 2003, C4. (<span class="quote">«<span class="quote">Not all news organizations have
1960 been as accepting of employees who blog. Kevin Sites, a CNN
1961 correspondent in Iraq who started a blog about his reporting of the
1962 war on March 9, stopped posting 12 days later at his bosses'
1963 request. Last year Steve Olafson, a <em class="citetitle">Houston Chronicle</em> reporter, was
1964 fired for keeping a personal Web log, published under a pseudonym,
1965 that dealt with some of the issues and people he was covering.</span>»</span>)
1966 </p></div><div id="ftn.idp39381712" class="footnote"><p><a href="#idp39381712" class="para"><sup class="para">[47] </sup></a>
1967
1968 See, for example, Edward Felten and Andrew Appel, <span class="quote">«<span class="quote">Technological Access
1969 Control Interferes with Noninfringing Scholarship,</span>»</span> <em class="citetitle">Communications
1970 of the Association for Computer Machinery</em> 43 (2000): 9.
1971 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="catalogs"></a>Chapter 3. Chapter Three: Catalogs</h2></div></div></div><a class="indexterm" name="idp39391872"></a><a class="indexterm" name="idp39392624"></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>
1972 <span class="strong"><strong>In the fall</strong></span> of 2002, Jesse Jordan
1973 of Oceanside, New York, enrolled as a freshman at Rensselaer
1974 Polytechnic Institute, in Troy, New York.  His major at RPI was
1975 information technology. Though he is not a programmer, in October
1976 Jesse decided to begin to tinker with search engine technology that
1977 was available on the RPI network.
1978 </p><p>
1979 RPI is one of America's foremost technological research institutions.
1980 It offers degrees in fields ranging from architecture and engineering
1981 to information sciences. More than 65 percent of its five thousand
1982 undergraduates finished in the top 10 percent of their high school
1983 class. The school is thus a perfect mix of talent and experience to
1984 imagine and then build, a generation for the network age.
1985 </p><p>
1986 RPI's computer network links students, faculty, and administration to
1987 one another. It also links RPI to the Internet. Not everything
1988 available on the RPI network is available on the Internet. But the
1989 network is designed to enable students to get access to the Internet,
1990 as well as more intimate access to other members of the RPI community.
1991 </p><a class="indexterm" name="idxgoogle"></a><p>
1992 Search engines are a measure of a network's intimacy. Google
1993
1994 brought the Internet much closer to all of us by fantastically
1995 improving the quality of search on the network. Specialty search
1996 engines can do this even better. The idea of <span class="quote">«<span class="quote">intranet</span>»</span> search
1997 engines, search engines that search within the network of a particular
1998 institution, is to provide users of that institution with better
1999 access to material from that institution.  Businesses do this all the
2000 time, enabling employees to have access to material that people
2001 outside the business can't get. Universities do it as well.
2002 </p><a class="indexterm" name="idxjordanjesse"></a><a class="indexterm" name="idxmicrosoftnetworkfilesystemof"></a><p>
2003 These engines are enabled by the network technology itself.
2004 Microsoft, for example, has a network file system that makes it very
2005 easy for search engines tuned to that network to query the system for
2006 information about the publicly (within that network) available
2007 content.  Jesse's search engine was built to take advantage of this
2008 technology. It used Microsoft's network file system to build an index
2009 of all the files available within the RPI network.
2010 </p><a class="indexterm" name="idp39409792"></a><p>
2011 Jesse's wasn't the first search engine built for the RPI network.
2012 Indeed, his engine was a simple modification of engines that others
2013 had built. His single most important improvement over those engines
2014 was to fix a bug within the Microsoft file-sharing system that could
2015 cause a user's computer to crash. With the engines that existed
2016 before, if you tried to access a file through a Windows browser that
2017 was on a computer that was off-line, your computer could crash. Jesse
2018 modified the system a bit to fix that problem, by adding a button that
2019 a user could click to see if the machine holding the file was still
2020 on-line.
2021 </p><a class="indexterm" name="idp39411792"></a><p>
2022 Jesse's engine went on-line in late October. Over the following six
2023 months, he continued to tweak it to improve its functionality. By
2024 March, the system was functioning quite well. Jesse had more than one
2025 million files in his directory, including every type of content that might
2026 be on users' computers.
2027 </p><a class="indexterm" name="idp39413472"></a><p>
2028 Thus the index his search engine produced included pictures, which
2029 students could use to put on their own Web sites; copies of notes or
2030 research; copies of information pamphlets; movie clips that students
2031 might have created; university brochures&#8212;basically anything that
2032
2033 users of the RPI network made available in a public folder of their
2034 computer.
2035 </p><a class="indexterm" name="idp39415504"></a><a class="indexterm" name="idp39416256"></a><p>
2036 But the index also included music files. In fact, one quarter of the
2037 files that Jesse's search engine listed were music files. But that
2038 means, of course, that three quarters were not, and&#8212;so that this
2039 point is absolutely clear&#8212;Jesse did nothing to induce people to
2040 put music files in their public folders. He did nothing to target the
2041 search engine to these files. He was a kid tinkering with a
2042 Google-like technology at a university where he was studying
2043 information science, and hence, tinkering was the aim. Unlike Google,
2044 or Microsoft, for that matter, he made no money from this tinkering;
2045 he was not connected to any business that would make any money from
2046 this experiment. He was a kid tinkering with technology in an
2047 environment where tinkering with technology was precisely what he was
2048 supposed to do.
2049 </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="idp39424960"></a><p>
2050 On April 3, 2003, Jesse was contacted by the dean of students at
2051 RPI. The dean informed Jesse that the Recording Industry Association
2052 of America, the RIAA, would be filing a lawsuit against him and three
2053 other students whom he didn't even know, two of them at other
2054 universities.  A few hours later, Jesse was served with papers from
2055 the suit.  As he read these papers and watched the news reports about
2056 them, he was increasingly astonished.
2057 </p><p>
2058 <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
2059 wrong. &#8230;  I don't think there's anything wrong with the search
2060 engine that I ran or &#8230; what I had done to it. I mean, I hadn't
2061 modified it in any way that promoted or enhanced the work of
2062 pirates. I just modified the search engine in a way that would make it
2063 easier to use</span>»</span>&#8212;again, a <span class="emphasis"><em>search engine</em></span>,
2064 which Jesse had not himself built, using the Windows filesharing
2065 system, which Jesse had not himself built, to enable members of the
2066 RPI community to get access to content, which Jesse had not himself
2067 created or posted, and the vast majority of which had nothing to do
2068 with music.
2069 </p><a class="indexterm" name="idp39429104"></a><a class="indexterm" name="idp39430080"></a><a class="indexterm" name="idp39431088"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitsindividualdefendantsintimidatedby"></a><a class="indexterm" name="idp39433744"></a><a class="indexterm" name="idxrecordingindustryassociationofamericariaaintimidationtacticsof"></a><p>
2070 But the RIAA branded Jesse a pirate. They claimed he operated a
2071 network and had therefore <span class="quote">«<span class="quote">willfully</span>»</span> violated copyright laws. They
2072
2073 demanded that he pay them the damages for his wrong. For cases of
2074 <span class="quote">«<span class="quote">willful infringement,</span>»</span> the Copyright Act specifies something lawyers
2075 call <span class="quote">«<span class="quote">statutory damages.</span>»</span> These damages permit a copyright owner to
2076 claim $150,000 per infringement. As the RIAA alleged more than one
2077 hundred specific copyright infringements, they therefore demanded that
2078 Jesse pay them at least $15,000,000.
2079 </p><a class="indexterm" name="idp39438288"></a><a class="indexterm" name="idp39439040"></a><p>
2080 Similar lawsuits were brought against three other students: one other
2081 student at RPI, one at Michigan Technical University, and one at
2082 Princeton. Their situations were similar to Jesse's. Though each case
2083 was different in detail, the bottom line in each was exactly the same:
2084 huge demands for <span class="quote">«<span class="quote">damages</span>»</span> that the RIAA claimed it was entitled to.
2085 If you added up the claims, these four lawsuits were asking courts in
2086 the United States to award the plaintiffs close to $100
2087 <span class="emphasis"><em>billion</em></span>&#8212;six times the
2088 <span class="emphasis"><em>total</em></span> profit of the film industry in
2089 2001.<a href="#ftn.idp39441696" class="footnote" name="idp39441696"><sup class="footnote">[48]</sup></a>
2090 </p><a class="indexterm" name="idp39443472"></a><p>
2091 Jesse called his parents. They were supportive but a bit frightened.
2092 An uncle was a lawyer. He began negotiations with the RIAA. They
2093 demanded to know how much money Jesse had. Jesse had saved
2094 $12,000 from summer jobs and other employment. They demanded
2095 $12,000 to dismiss the case.
2096 </p><a class="indexterm" name="idp39445136"></a><p>
2097 The RIAA wanted Jesse to admit to doing something wrong. He
2098 refused. They wanted him to agree to an injunction that would
2099 essentially make it impossible for him to work in many fields of
2100 technology for the rest of his life. He refused. They made him
2101 understand that this process of being sued was not going to be
2102 pleasant. (As Jesse's father recounted to me, the chief lawyer on the
2103 case, Matt Oppenheimer, told Jesse, <span class="quote">«<span class="quote">You don't want to pay another
2104 visit to a dentist like me.</span>»</span>) And throughout, the RIAA insisted it
2105 would not settle the case until it took every penny Jesse had saved.
2106 </p><a class="indexterm" name="idp39447296"></a><p>
2107 Jesse's family was outraged at these claims. They wanted to fight.
2108 But Jesse's uncle worked to educate the family about the nature of the
2109 American legal system. Jesse could fight the RIAA. He might even
2110 win. But the cost of fighting a lawsuit like this, Jesse was told, would be
2111 at least $250,000. If he won, he would not recover that money. If he
2112
2113 won, he would have a piece of paper saying he had won, and a piece of
2114 paper saying he and his family were bankrupt.
2115 </p><p>
2116 So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
2117 or $12,000 and a settlement.
2118 </p><a class="indexterm" name="idp39449680"></a><a class="indexterm" name="idp39450688"></a><a class="indexterm" name="idp39451696"></a><p>
2119 The recording industry insists this is a matter of law and morality.
2120 Let's put the law aside for a moment and think about the morality.
2121 Where is the morality in a lawsuit like this? What is the virtue in
2122 scapegoatism? The RIAA is an extraordinarily powerful lobby. The
2123 president of the RIAA is reported to make more than $1 million a year.
2124 Artists, on the other hand, are not well paid. The average recording
2125 artist makes $45,900.<a href="#ftn.idp39453408" class="footnote" name="idp39453408"><sup class="footnote">[49]</sup></a>
2126 There are plenty of ways for the RIAA to affect
2127 and direct policy. So where is the morality in taking money from a
2128 student for running a search engine?<a href="#ftn.idp39454896" class="footnote" name="idp39454896"><sup class="footnote">[50]</sup></a>
2129 </p><a class="indexterm" name="idp39456560"></a><a class="indexterm" name="idp39457776"></a><p>
2130 On June 23, Jesse wired his savings to the lawyer working for the
2131 RIAA. The case against him was then dismissed. And with this, this
2132 kid who had tinkered a computer into a $15 million lawsuit became an
2133 activist:
2134 </p><div class="blockquote"><blockquote class="blockquote"><p>
2135 I was definitely not an activist [before]. I never really meant to be
2136 an activist. &#8230; [But] I've been pushed into this. In no way did I
2137 ever foresee anything like this, but I think it's just completely
2138 absurd what the RIAA has done.
2139 </p></blockquote></div><p>
2140 Jesse's parents betray a certain pride in their reluctant activist. As
2141 his father told me, Jesse <span class="quote">«<span class="quote">considers himself very conservative, and so do
2142 I. &#8230; He's  not a tree hugger. &#8230; I  think it's bizarre that they would
2143 pick on him. But he wants to let people know that they're sending the
2144 wrong message. And he wants to correct the record.</span>»</span>
2145 </p><a class="indexterm" name="idp39461680"></a><a class="indexterm" name="idp39462656"></a><a class="indexterm" name="idp39463632"></a><a class="indexterm" name="idp39464608"></a><a class="indexterm" name="idp39465744"></a><a class="indexterm" name="idp39466720"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp39441696" class="footnote"><p><a href="#idp39441696" class="para"><sup class="para">[48] </sup></a>
2146
2147
2148 Tim Goral, <span class="quote">«<span class="quote">Recording Industry Goes After Campus P-2-P Networks:
2149 Suit Alleges $97.8 Billion in Damages,</span>»</span> <em class="citetitle">Professional Media Group LCC</em> 6
2150 (2003): 5, available at 2003 WL 55179443.
2151 </p></div><div id="ftn.idp39453408" class="footnote"><p><a href="#idp39453408" class="para"><sup class="para">[49] </sup></a>
2152
2153 Occupational Employment Survey, U.S. Dept. of Labor (2001)
2154 (27&#8211;2042&#8212;Musicians and Singers). See also National Endowment for
2155 the Arts, <em class="citetitle">More Than One in a Blue Moon</em> (2000).
2156 </p></div><div id="ftn.idp39454896" class="footnote"><p><a href="#idp39454896" class="para"><sup class="para">[50] </sup></a>
2157
2158 Douglas Lichtman makes a related point in <span class="quote">«<span class="quote">KaZaA and Punishment,</span>»</span>
2159 <em class="citetitle">Wall Street Journal</em>, 10 September 2003, A24.
2160 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="pirates"></a>Chapter 4. Chapter Four: <span class="quote">«<span class="quote">Pirates</span>»</span></h2></div></div></div><a class="indexterm" name="idxpiracyindevelopmentofcontentindustry"></a><a class="indexterm" name="idp39471136"></a><p>
2161 <span class="strong"><strong>If <span class="quote">«<span class="quote">piracy</span>»</span> means</strong></span>
2162 using the creative property of others without their
2163 permission&#8212;if <span class="quote">«<span class="quote">if value, then right</span>»</span> is
2164 true&#8212;then the history of the content industry is a history of
2165 piracy. Every important sector of <span class="quote">«<span class="quote">big media</span>»</span>
2166 today&#8212;film, records, radio, and cable TV&#8212;was born of a
2167 kind of piracy so defined. The consistent story is how last
2168 generation's pirates join this generation's country club&#8212;until
2169 now.
2170 </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><a class="indexterm" name="idp39475504"></a><a class="indexterm" name="idxhollywoodfilmindustry"></a><a class="indexterm" name="idxpatentsonfilmtechnology"></a><p>
2171 The film industry of Hollywood was built by fleeing pirates.<a href="#ftn.idp39479568" class="footnote" name="idp39479568"><sup class="footnote">[51]</sup></a>
2172 Creators and directors migrated from the East Coast to California in
2173 the early twentieth century in part to escape controls that patents
2174 granted the inventor of filmmaking, Thomas Edison. These controls were
2175 exercised through a monopoly <span class="quote">«<span class="quote">trust,</span>»</span> the Motion Pictures Patents
2176 Company, and were based on Thomas Edison's creative
2177 property&#8212;patents.  Edison formed the MPPC to exercise the rights
2178 this creative property
2179
2180 gave him, and the MPPC was serious about the control it demanded.
2181 </p><p>
2182 As one commentator tells one part of the story,
2183 </p><div class="blockquote"><blockquote class="blockquote"><p>
2184 A January 1909 deadline was set for all companies to comply with
2185 the license. By February, unlicensed outlaws, who referred to
2186 themselves as independents protested the trust and carried on
2187 business without submitting to the Edison monopoly. In the
2188 summer of 1909 the independent movement was in full-swing,
2189 with producers and theater owners using illegal equipment and
2190 imported film stock to create their own underground market.
2191 </p><a class="indexterm" name="idp39484864"></a><a class="indexterm" name="idp39485504"></a><a class="indexterm" name="idp39486256"></a><p>
2192 With the country experiencing a tremendous expansion in the number of
2193 nickelodeons, the Patents Company reacted to the independent movement
2194 by forming a strong-arm subsidiary known as the General Film Company
2195 to block the entry of non-licensed independents. With coercive tactics
2196 that have become legendary, General Film confiscated unlicensed
2197 equipment, discontinued product supply to theaters which showed
2198 unlicensed films, and effectively monopolized distribution with the
2199 acquisition of all U.S. film exchanges, except for the one owned by
2200 the independent William Fox who defied the Trust even after his
2201 license was revoked.<a href="#ftn.idp39487904" class="footnote" name="idp39487904"><sup class="footnote">[52]</sup></a>
2202 </p></blockquote></div><p>
2203 The Napsters of those days, the <span class="quote">«<span class="quote">independents,</span>»</span> were
2204 companies like Fox. And no less than today, these independents were
2205 vigorously resisted.  <span class="quote">«<span class="quote">Shooting was disrupted by machinery
2206 stolen, and <span class="quote">&#8216;<span class="quote">accidents</span>&#8217;</span> resulting in loss of negatives,
2207 equipment, buildings and sometimes life and limb frequently
2208 occurred.</span>»</span><a href="#ftn.idp39493680" class="footnote" name="idp39493680"><sup class="footnote">[53]</sup></a>
2209 That led the independents to flee the East
2210 Coast. California was remote enough from Edison's reach that
2211 filmmakers there could pirate his inventions without fear of the
2212 law. And the leaders of Hollywood filmmaking, Fox most prominently,
2213 did just that.
2214 </p><a class="indexterm" name="idp39496240"></a><p>
2215 Of course, California grew quickly, and the effective enforcement
2216 of federal law eventually spread west. But because patents grant the
2217 patent holder a truly <span class="quote">«<span class="quote">limited</span>»</span> monopoly (just seventeen years at that
2218
2219
2220 time), by the time enough federal marshals appeared, the patents had
2221 expired. A new industry had been born, in part from the piracy of
2222 Edison's creative property.
2223 </p><a class="indexterm" name="idp39498592"></a></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>
2224 The record industry was born of another kind of piracy, though to see
2225 how requires a bit of detail about the way the law regulates music.
2226 </p><a class="indexterm" name="idxfourneauxhenri"></a><a class="indexterm" name="idp39503840"></a><p>
2227 At the time that Edison and Henri Fourneaux invented machines
2228 for reproducing music (Edison the phonograph, Fourneaux the player
2229 piano), the law gave composers the exclusive right to control copies of
2230 their music and the exclusive right to control public performances of
2231 their music. In other words, in 1900, if I wanted a copy of Phil Russel's
2232 1899 hit <span class="quote">«<span class="quote">Happy Mose,</span>»</span> the law said I would have to pay for the right
2233 to get a copy of the musical score, and I would also have to pay for the
2234 right to perform it publicly.
2235 </p><a class="indexterm" name="idp39505888"></a><p>
2236 But what if I wanted to record <span class="quote">«<span class="quote">Happy Mose,</span>»</span> using Edison's phonograph
2237 or Fourneaux's player piano?  Here the law stumbled. It was clear
2238 enough that I would have to buy any copy of the musical score that I
2239 performed in making this recording. And it was clear enough that I
2240 would have to pay for any public performance of the work I was
2241 recording.  But it wasn't totally clear that I would have to pay for a
2242 <span class="quote">«<span class="quote">public performance</span>»</span> if I recorded the song in my own house (even
2243 today, you don't owe the Beatles anything if you sing their songs in
2244 the shower), or if I recorded the song from memory (copies in your
2245 brain are not&#8212;yet&#8212; regulated by copyright law). So if I
2246 simply sang the song into a recording device in the privacy of my own
2247 home, it wasn't clear that I owed the composer anything. And more
2248 importantly, it wasn't clear whether I owed the composer anything if I
2249 then made copies of those recordings.  Because of this gap in the law,
2250 then, I could effectively pirate someone else's song without paying
2251 its composer anything.
2252 </p><a class="indexterm" name="idp39508048"></a><a class="indexterm" name="idxkittredgealfred"></a><a class="indexterm" name="idxmusicpublishing"></a><p>
2253 The composers (and publishers) were none too happy about
2254
2255 this capacity to pirate. As South Dakota senator Alfred Kittredge
2256 put it,
2257 <a class="indexterm" name="idp39512928"></a>
2258 </p><div class="blockquote"><blockquote class="blockquote"><p>
2259 Imagine the injustice of the thing. A composer writes a song or an
2260 opera. A publisher buys at great expense the rights to the same and
2261 copyrights it. Along come the phonographic companies and companies who
2262 cut music rolls and deliberately steal the work of the brain of the
2263 composer and publisher without any regard for [their]
2264 rights.<a href="#ftn.idp39514672" class="footnote" name="idp39514672"><sup class="footnote">[54]</sup></a>
2265 </p></blockquote></div><a class="indexterm" name="idp39517216"></a><a class="indexterm" name="idp39518192"></a><p>
2266 The innovators who developed the technology to record other
2267 people's works were <span class="quote">«<span class="quote">sponging upon the toil, the work, the talent, and
2268 genius of American composers,</span>»</span><a href="#ftn.idp39519648" class="footnote" name="idp39519648"><sup class="footnote">[55]</sup></a>
2269 and the <span class="quote">«<span class="quote">music publishing industry</span>»</span>
2270 was thereby <span class="quote">«<span class="quote">at the complete mercy of this one pirate.</span>»</span><a href="#ftn.idp39521216" class="footnote" name="idp39521216"><sup class="footnote">[56]</sup></a>
2271 As John Philip
2272 Sousa put it, in as direct a way as possible, <span class="quote">«<span class="quote">When they make money
2273 out of my pieces, I want a share of it.</span>»</span><a href="#ftn.idp39522560" class="footnote" name="idp39522560"><sup class="footnote">[57]</sup></a>
2274 </p><a class="indexterm" name="idp39523584"></a><a class="indexterm" name="idp39524560"></a><a class="indexterm" name="idp39525312"></a><a class="indexterm" name="idp39526064"></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>
2275 These arguments have familiar echoes in the wars of our day. So, too,
2276 do the arguments on the other side. The innovators who developed the
2277 player piano argued that <span class="quote">«<span class="quote">it is perfectly demonstrable that the
2278 introduction of automatic music players has not deprived any composer
2279 of anything he had before their introduction.</span>»</span> Rather, the machines
2280 increased the sales of sheet music.<a href="#ftn.idp39533840" class="footnote" name="idp39533840"><sup class="footnote">[58]</sup></a> In any case, the innovators argued, the job of
2281 Congress was <span class="quote">«<span class="quote">to consider first the interest of [the public], whom
2282 they represent, and whose servants they are.</span>»</span> <span class="quote">«<span class="quote">All talk about
2283 <span class="quote">&#8216;<span class="quote">theft,</span>&#8217;</span></span>»</span> the general counsel of the American Graphophone Company
2284 wrote, <span class="quote">«<span class="quote">is the merest claptrap, for there exists no property in ideas
2285 musical, literary or artistic, except as defined by
2286 statute.</span>»</span><a href="#ftn.idp39536480" class="footnote" name="idp39536480"><sup class="footnote">[59]</sup></a>
2287 </p><a class="indexterm" name="idp39537568"></a><p>
2288 The law soon resolved this battle in favor of the composer
2289 <span class="emphasis"><em>and</em></span> the recording artist. Congress amended the
2290 law to make sure that composers would be paid for the <span class="quote">«<span class="quote">mechanical
2291 reproductions</span>»</span> of their music. But rather than simply granting the
2292 composer complete control over the right to make mechanical
2293 reproductions, Congress gave recording artists a right to record the
2294 music, at a price set by Congress, once the composer allowed it to be
2295 recorded once. This is the part of
2296
2297
2298 copyright law that makes cover songs possible. Once a composer
2299 authorizes a recording of his song, others are free to record the same
2300 song, so long as they pay the original composer a fee set by the law.
2301 </p><a class="indexterm" name="idxcompulsorylicense"></a><a class="indexterm" name="idxstatutorylicenses"></a><p>
2302 American law ordinarily calls this a <span class="quote">«<span class="quote">compulsory license,</span>»</span> but I will
2303 refer to it as a <span class="quote">«<span class="quote">statutory license.</span>»</span> A statutory license is a license
2304 whose key terms are set by law. After Congress's amendment of the
2305 Copyright Act in 1909, record companies were free to distribute copies
2306 of recordings so long as they paid the composer (or copyright holder)
2307 the fee set by the statute.
2308 </p><a class="indexterm" name="idxgrishamjohn"></a><p>
2309 This is an exception within the law of copyright. When John Grisham
2310 writes a novel, a publisher is free to publish that novel only if
2311 Grisham gives the publisher permission. Grisham, in turn, is free to
2312 charge whatever he wants for that permission. The price to publish
2313 Grisham is thus set by Grisham, and copyright law ordinarily says you
2314 have no permission to use Grisham's work except with permission of
2315 Grisham.
2316 </p><a class="indexterm" name="idp39546400"></a><a class="indexterm" name="idp39547376"></a><p>
2317 But the law governing recordings gives recording artists less. And
2318 thus, in effect, the law <span class="emphasis"><em>subsidizes</em></span> the recording
2319 industry through a kind of piracy&#8212;by giving recording artists a
2320 weaker right than it otherwise gives creative authors. The Beatles
2321 have less control over their creative work than Grisham does. And the
2322 beneficiaries of this less control are the recording industry and the
2323 public. The recording industry gets something of value for less than
2324 it otherwise would pay; the public gets access to a much wider range
2325 of musical creativity. Indeed, Congress was quite explicit about its
2326 reasons for granting this right. Its fear was the monopoly power of
2327 rights holders, and that that power would stifle follow-on
2328 creativity.<a href="#ftn.idp39482736" class="footnote" name="idp39482736"><sup class="footnote">[60]</sup></a>
2329 </p><a class="indexterm" name="idp39551152"></a><a class="indexterm" name="idp39552128"></a><a class="indexterm" name="idp39553104"></a><p>
2330 While the recording industry has been quite coy about this recently,
2331 historically it has been quite a supporter of the statutory license for
2332 records. As a 1967 report from the House Committee on the Judiciary
2333 relates,
2334 </p><div class="blockquote"><blockquote class="blockquote"><p>
2335 the record producers argued vigorously that the compulsory
2336
2337 license system must be retained. They asserted that the record
2338 industry is a half-billion-dollar business of great economic
2339 importance in the United States and throughout the world; records
2340 today are the principal means of disseminating music, and this creates
2341 special problems, since performers need unhampered access to musical
2342 material on nondiscriminatory terms. Historically, the record
2343 producers pointed out, there were no recording rights before 1909 and
2344 the 1909 statute adopted the compulsory license as a deliberate
2345 anti-monopoly condition on the grant of these rights. They argue that
2346 the result has been an outpouring of recorded music, with the public
2347 being given lower prices, improved quality, and a greater
2348 choice.<a href="#ftn.idp39556304" class="footnote" name="idp39556304"><sup class="footnote">[61]</sup></a>
2349 </p></blockquote></div><a class="indexterm" name="idp39557568"></a><a class="indexterm" name="idp39558544"></a><a class="indexterm" name="idp39559520"></a><a class="indexterm" name="idp39560496"></a><p>
2350 By limiting the rights musicians have, by partially pirating their
2351 creative work, the record producers, and the public, benefit.
2352 </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>
2353 Radio was also born of piracy.
2354 </p><p>
2355 When a radio station plays a record on the air, that constitutes a
2356 <span class="quote">«<span class="quote">public performance</span>»</span> of the composer's work.<a href="#ftn.idp39567088" class="footnote" name="idp39567088"><sup class="footnote">[62]</sup></a>
2357 As I described above, the law gives the composer (or copyright holder)
2358 an exclusive right to public performances of his work. The radio
2359 station thus owes the composer money for that performance.
2360 </p><a class="indexterm" name="idxradiomusicrecordingsplayedon"></a><p>
2361 But when the radio station plays a record, it is not only performing a
2362 copy of the <span class="emphasis"><em>composer's</em></span> work. The radio station is
2363 also performing a copy of the <span class="emphasis"><em>recording artist's</em></span>
2364 work. It's one thing to have <span class="quote">«<span class="quote">Happy Birthday</span>»</span> sung on the radio by the
2365 local children's choir; it's quite another to have it sung by the
2366 Rolling Stones or Lyle Lovett. The recording artist is adding to the
2367 value of the composition performed on the radio station.  And if the
2368 law were perfectly consistent, the radio station would have to pay the
2369 recording artist for his work, just as it pays the composer of the
2370 music for his work.
2371 <a class="indexterm" name="idp39576000"></a>
2372
2373
2374 </p><p>
2375 But it doesn't. Under the law governing radio performances, the radio
2376 station does not have to pay the recording artist. The radio station
2377 need only pay the composer. The radio station thus gets a bit of
2378 something for nothing. It gets to perform the recording artist's work
2379 for free, even if it must pay the composer something for the privilege
2380 of playing the song.
2381 </p><a class="indexterm" name="idxmadonna"></a><p>
2382 This difference can be huge. Imagine you compose a piece of music.
2383 Imagine it is your first. You own the exclusive right to authorize
2384 public performances of that music. So if Madonna wants to sing your
2385 song in public, she has to get your permission.
2386 </p><p>
2387 Imagine she does sing your song, and imagine she likes it a lot. She
2388 then decides to make a recording of your song, and it becomes a top
2389 hit. Under our law, every time a radio station plays your song, you
2390 get some money. But Madonna gets nothing, save the indirect effect on
2391 the sale of her CDs. The public performance of her recording is not a
2392 <span class="quote">«<span class="quote">protected</span>»</span> right. The radio station thus gets to
2393 <span class="emphasis"><em>pirate</em></span> the value of Madonna's work without paying
2394 her anything.
2395 </p><a class="indexterm" name="idp39581392"></a><a class="indexterm" name="idp39582368"></a><a class="indexterm" name="idp39583344"></a><p>
2396 No doubt, one might argue that, on balance, the recording artists
2397 benefit. On average, the promotion they get is worth more than the
2398 performance rights they give up. Maybe. But even if so, the law
2399 ordinarily gives the creator the right to make this choice. By making
2400 the choice for him or her, the law gives the radio station the right
2401 to take something for nothing.
2402 </p><a class="indexterm" name="idp39585088"></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>
2403 Cable TV was also born of a kind of piracy.
2404 </p><p>
2405 When cable entrepreneurs first started wiring communities with cable
2406 television in 1948, most refused to pay broadcasters for the content
2407 that they echoed to their customers. Even when the cable companies
2408 started selling access to television broadcasts, they refused to pay
2409
2410 for what they sold. Cable companies were thus Napsterizing
2411 broadcasters' content, but more egregiously than anything Napster ever
2412 did&#8212; Napster never charged for the content it enabled others to
2413 give away.
2414 </p><a class="indexterm" name="idp39589488"></a><a class="indexterm" name="idp39590608"></a><a class="indexterm" name="idp39591360"></a><p>
2415 Broadcasters and copyright owners were quick to attack this theft.
2416 Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
2417 <span class="quote">«<span class="quote">unfair and potentially destructive competition.</span>»</span><a href="#ftn.idp39592768" class="footnote" name="idp39592768"><sup class="footnote">[63]</sup></a>
2418 There may have been a <span class="quote">«<span class="quote">public interest</span>»</span> in spreading the reach of cable
2419 TV, but as Douglas Anello, general counsel to the National Association
2420 of Broadcasters, asked Senator Quentin Burdick during testimony, <span class="quote">«<span class="quote">Does public
2421 interest dictate that you use somebody else's property?</span>»</span><a href="#ftn.idp39595488" class="footnote" name="idp39595488"><sup class="footnote">[64]</sup></a>
2422 As another broadcaster put it,
2423 </p><div class="blockquote"><blockquote class="blockquote"><p>
2424 The extraordinary thing about the CATV business is that it is the
2425 only business I know of where the product that is being sold is not
2426 paid for.<a href="#ftn.idp39597200" class="footnote" name="idp39597200"><sup class="footnote">[65]</sup></a>
2427 </p></blockquote></div><p>
2428 Again, the demand of the copyright holders seemed reasonable enough:
2429 </p><div class="blockquote"><blockquote class="blockquote"><p>
2430 All we are asking for is a very simple thing, that people who now
2431 take our property for nothing pay for it. We are trying to stop
2432 piracy and I don't think there is any lesser word to describe it. I
2433 think there are harsher words which would fit it.<a href="#ftn.idp39599632" class="footnote" name="idp39599632"><sup class="footnote">[66]</sup></a>
2434 </p></blockquote></div><a class="indexterm" name="idp39600848"></a><p>
2435 These were <span class="quote">«<span class="quote">free-ride[rs],</span>»</span> Screen Actor's Guild president Charlton
2436 Heston said, who were <span class="quote">«<span class="quote">depriving actors of
2437 compensation.</span>»</span><a href="#ftn.idp39602576" class="footnote" name="idp39602576"><sup class="footnote">[67]</sup></a>
2438 </p><p>
2439 But again, there was another side to the debate. As Assistant Attorney
2440 General Edwin Zimmerman put it,
2441 </p><div class="blockquote"><blockquote class="blockquote"><p>
2442 Our point here is that unlike the problem of whether you have any
2443 copyright protection at all, the problem here is whether copyright
2444 holders who are already compensated, who already have a monopoly,
2445 should be permitted to extend that monopoly. &#8230; The
2446
2447
2448 question here is how much compensation they should have and
2449 how far back they should carry their right to compensation.<a href="#ftn.idp39605632" class="footnote" name="idp39605632"><sup class="footnote">[68]</sup></a>
2450 <a class="indexterm" name="idp39607824"></a>
2451 </p></blockquote></div><p>
2452 Copyright owners took the cable companies to court. Twice the Supreme
2453 Court held that the cable companies owed the copyright owners nothing.
2454 </p><p>
2455 It took Congress almost thirty years before it resolved the question
2456 of whether cable companies had to pay for the content they <span class="quote">«<span class="quote">pirated.</span>»</span>
2457 In the end, Congress resolved this question in the same way that it
2458 resolved the question about record players and player pianos. Yes,
2459 cable companies would have to pay for the content that they broadcast;
2460 but the price they would have to pay was not set by the copyright
2461 owner.  The price was set by law, so that the broadcasters couldn't
2462 exercise veto power over the emerging technologies of cable. Cable
2463 companies thus built their empire in part upon a <span class="quote">«<span class="quote">piracy</span>»</span> of the value
2464 created by broadcasters' content.
2465 </p><a class="indexterm" name="idp39611152"></a><a class="indexterm" name="idp39612128"></a><p>
2466 <span class="strong"><strong>These separate stories</strong></span> sing a
2467 common theme. If <span class="quote">«<span class="quote">piracy</span>»</span> means using value from someone
2468 else's creative property without permission from that creator&#8212;as
2469 it is increasingly described today<a href="#ftn.idp39606816" class="footnote" name="idp39606816"><sup class="footnote">[69]</sup></a>
2470 &#8212; then <span class="emphasis"><em>every</em></span> industry affected by copyright
2471 today is the product and beneficiary of a certain kind of
2472 piracy. Film, records, radio, cable TV. &#8230; The list is long and
2473 could well be expanded. Every generation welcomes the pirates from the
2474 last. Every generation&#8212;until now.
2475 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp39479568" class="footnote"><p><a href="#idp39479568" class="para"><sup class="para">[51] </sup></a>
2476
2477 <a class="indexterm" name="idp39480208"></a>
2478 I am grateful to Peter DiMauro for pointing me to this extraordinary
2479 history. See also Siva Vaidhyanathan, <em class="citetitle">Copyrights and Copywrongs</em>, 87&#8211;93,
2480 which details Edison's <span class="quote">«<span class="quote">adventures</span>»</span> with copyright and patent.
2481 </p></div><div id="ftn.idp39487904" class="footnote"><p><a href="#idp39487904" class="para"><sup class="para">[52] </sup></a>
2482
2483 J. A. Aberdeen, <em class="citetitle">Hollywood Renegades: The Society of Independent Motion
2484 Picture Producers</em> (Cobblestone Entertainment, 2000) and expanded texts
2485 posted at <span class="quote">«<span class="quote">The Edison Movie Monopoly: The Motion Picture Patents
2486 Company vs. the Independent Outlaws,</span>»</span> available at
2487 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #11</a>. For a
2488 discussion of the economic motive behind both these limits and the
2489 limits imposed by Victor on phonographs, see Randal C. Picker, <span class="quote">«<span class="quote">From
2490 Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and
2491 the Propertization of Copyright</span>»</span> (September 2002), University of
2492 Chicago Law School, James M. Olin Program in Law and Economics,
2493 Working Paper No. 159.
2494 <a class="indexterm" name="idp39490944"></a>
2495 </p></div><div id="ftn.idp39493680" class="footnote"><p><a href="#idp39493680" class="para"><sup class="para">[53] </sup></a>
2496
2497 Marc Wanamaker, <span class="quote">«<span class="quote">The First Studios,</span>»</span> <em class="citetitle">The Silents Majority</em>, archived at
2498 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #12</a>.
2499 </p></div><div id="ftn.idp39514672" class="footnote"><p><a href="#idp39514672" class="para"><sup class="para">[54] </sup></a>
2500
2501 To Amend and Consolidate the Acts Respecting Copyright: Hearings on
2502 S. 6330 and H.R. 19853 Before the (Joint) Committees on Patents, 59th
2503 Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge,
2504 of South Dakota, chairman), reprinted in <em class="citetitle">Legislative History of the
2505 Copyright Act</em>, E. Fulton Brylawski and Abe Goldman, eds. (South
2506 Hackensack, N.J.: Rothman Reprints, 1976).
2507 <a class="indexterm" name="idp39516080"></a>
2508 </p></div><div id="ftn.idp39519648" class="footnote"><p><a href="#idp39519648" class="para"><sup class="para">[55] </sup></a>
2509
2510 To Amend and Consolidate the Acts Respecting Copyright, 223
2511 (statement of Nathan Burkan, attorney for the Music Publishers Association).
2512 </p></div><div id="ftn.idp39521216" class="footnote"><p><a href="#idp39521216" class="para"><sup class="para">[56] </sup></a>
2513
2514 To Amend and Consolidate the Acts Respecting Copyright, 226
2515 (statement of Nathan Burkan, attorney for the Music Publishers Association).
2516 </p></div><div id="ftn.idp39522560" class="footnote"><p><a href="#idp39522560" class="para"><sup class="para">[57] </sup></a>
2517
2518 To Amend and Consolidate the Acts Respecting Copyright, 23
2519 (statement of John Philip Sousa, composer).
2520 </p></div><div id="ftn.idp39533840" class="footnote"><p><a href="#idp39533840" class="para"><sup class="para">[58] </sup></a>
2521
2522
2523 To Amend and Consolidate the Acts Respecting Copyright, 283&#8211;84
2524 (statement of Albert Walker, representative of the Auto-Music
2525 Perforating Company of New York).
2526 </p></div><div id="ftn.idp39536480" class="footnote"><p><a href="#idp39536480" class="para"><sup class="para">[59] </sup></a>
2527
2528 To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared
2529 memorandum of Philip Mauro, general patent counsel of the American
2530 Graphophone Company Association).
2531 </p></div><div id="ftn.idp39482736" class="footnote"><p><a href="#idp39482736" class="para"><sup class="para">[60] </sup></a>
2532
2533
2534 Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and
2535 H.R. 11794 Before the (Joint) Committee on Patents, 60th Cong., 1st
2536 sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted
2537 in <em class="citetitle">Legislative History of the 1909 Copyright Act</em>, E. Fulton Brylawski and
2538 Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976).
2539 </p></div><div id="ftn.idp39556304" class="footnote"><p><a href="#idp39556304" class="para"><sup class="para">[61] </sup></a>
2540
2541 Copyright Law Revision: Report to Accompany H.R. 2512, House Committee
2542 on the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8
2543 March 1967). I am grateful to Glenn Brown for drawing my attention to
2544 this report.</p></div><div id="ftn.idp39567088" class="footnote"><p><a href="#idp39567088" class="para"><sup class="para">[62] </sup></a>
2545
2546 See 17 <em class="citetitle">United States Code</em>, sections 106 and 110. At the beginning,
2547 record companies printed <span class="quote">«<span class="quote">Not Licensed for Radio Broadcast</span>»</span> and other
2548 messages purporting to restrict the ability to play a record on a
2549 radio station.  Judge Learned Hand rejected the argument that a
2550 warning attached to a record might restrict the rights of the radio
2551 station. See <em class="citetitle">RCA Manufacturing Co</em>. v. <em class="citetitle">Whiteman</em>, 114 F. 2d 86 (2nd
2552 Cir. 1940). See also Randal C.  Picker, <span class="quote">«<span class="quote">From Edison to the Broadcast
2553 Flag: Mechanisms of Consent and Refusal and the Propertization of
2554 Copyright,</span>»</span> <em class="citetitle">University of Chicago Law Review</em> 70 (2003): 281.
2555 <a class="indexterm" name="idp39570560"></a>
2556 <a class="indexterm" name="idp39571312"></a>
2557 </p></div><div id="ftn.idp39592768" class="footnote"><p><a href="#idp39592768" class="para"><sup class="para">[63] </sup></a>
2558
2559 Copyright Law Revision&#8212;CATV: Hearing on S. 1006 Before the
2560 Subcommittee on Patents, Trademarks, and Copyrights of the Senate
2561 Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966)
2562 (statement of Rosel H. Hyde, chairman of the Federal Communications
2563 Commission).
2564 <a class="indexterm" name="idp39589632"></a>
2565 </p></div><div id="ftn.idp39595488" class="footnote"><p><a href="#idp39595488" class="para"><sup class="para">[64] </sup></a>
2566
2567 Copyright Law Revision&#8212;CATV, 116 (statement of Douglas A. Anello,
2568 general counsel of the National Association of Broadcasters).
2569 </p></div><div id="ftn.idp39597200" class="footnote"><p><a href="#idp39597200" class="para"><sup class="para">[65] </sup></a>
2570
2571 Copyright Law Revision&#8212;CATV, 126 (statement of Ernest W. Jennes,
2572 general counsel of the Association of Maximum Service Telecasters, Inc.).
2573 </p></div><div id="ftn.idp39599632" class="footnote"><p><a href="#idp39599632" class="para"><sup class="para">[66] </sup></a>
2574
2575 Copyright Law Revision&#8212;CATV, 169 (joint statement of Arthur B.
2576 Krim, president of United Artists Corp., and John Sinn, president of
2577 United Artists Television, Inc.).
2578 </p></div><div id="ftn.idp39602576" class="footnote"><p><a href="#idp39602576" class="para"><sup class="para">[67] </sup></a>
2579
2580 Copyright Law Revision&#8212;CATV, 209 (statement of Charlton Heston,
2581 president of the Screen Actors Guild).
2582 <a class="indexterm" name="idp39603344"></a>
2583 </p></div><div id="ftn.idp39605632" class="footnote"><p><a href="#idp39605632" class="para"><sup class="para">[68] </sup></a>
2584
2585 Copyright Law Revision&#8212;CATV, 216 (statement of Edwin M.
2586 Zimmerman, acting assistant attorney general).
2587 <a class="indexterm" name="idp39606944"></a>
2588 </p></div><div id="ftn.idp39606816" class="footnote"><p><a href="#idp39606816" class="para"><sup class="para">[69] </sup></a>
2589
2590 See, for example, National Music Publisher's Association, <em class="citetitle">The Engine
2591 of Free Expression: Copyright on the Internet&#8212;The Myth of Free
2592 Information</em>, available at
2593 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #13</a>. <span class="quote">«<span class="quote">The
2594 threat of piracy&#8212;the use of someone else's creative work without
2595 permission or compensation&#8212;has grown with the Internet.</span>»</span>
2596 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="piracy"></a>Chapter 5. Chapter Five: <span class="quote">«<span class="quote">Piracy</span>»</span></h2></div></div></div><p>
2597 <span class="strong"><strong>There is piracy</strong></span> of copyrighted
2598 material. Lots of it. This piracy comes in many forms. The most
2599 significant is commercial piracy, the unauthorized taking of other
2600 people's content within a commercial context. Despite the many
2601 justifications that are offered in its defense, this taking is
2602 wrong. No one should condone it, and the law should stop it.
2603 </p><p>
2604 But as well as copy-shop piracy, there is another kind of <span class="quote">«<span class="quote">taking</span>»</span>
2605 that is more directly related to the Internet. That taking, too, seems
2606 wrong to many, and it is wrong much of the time. Before we paint this
2607 taking <span class="quote">«<span class="quote">piracy,</span>»</span> however, we should understand its nature a bit more.
2608 For the harm of this taking is significantly more ambiguous than
2609 outright copying, and the law should account for that ambiguity, as it
2610 has so often done in the past.
2611
2612 </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="idp39623808"></a><a class="indexterm" name="idxcdsforeign"></a><p>
2613 All across the world, but especially in Asia and Eastern Europe, there
2614 are businesses that do nothing but take others people's copyrighted
2615 content, copy it, and sell it&#8212;all without the permission of a copyright
2616 owner. The recording industry estimates that it loses about $4.6 billion
2617 every year to physical piracy<a href="#ftn.idp39605760" class="footnote" name="idp39605760"><sup class="footnote">[70]</sup></a>
2618 (that works out to one in three CDs sold worldwide). The MPAA
2619 estimates that it loses $3 billion annually worldwide to piracy.
2620 </p><p>
2621 This is piracy plain and simple. Nothing in the argument of this
2622 book, nor in the argument that most people make when talking about
2623 the subject of this book, should draw into doubt this simple point:
2624 This piracy is wrong.
2625 </p><p>
2626 Which is not to say that excuses and justifications couldn't be made
2627 for it. We could, for example, remind ourselves that for the first one
2628 hundred years of the American Republic, America did not honor foreign
2629 copyrights. We were born, in this sense, a pirate nation. It might
2630 therefore seem hypocritical for us to insist so strongly that other
2631 developing nations treat as wrong what we, for the first hundred years
2632 of our existence, treated as right.
2633 </p><p>
2634 That excuse isn't terribly strong. Technically, our law did not ban
2635 the taking of foreign works. It explicitly limited itself to American
2636 works. Thus the American publishers who published foreign works
2637 without the permission of foreign authors were not violating any rule.
2638 The copy shops in Asia, by contrast, are violating Asian law. Asian
2639 law does protect foreign copyrights, and the actions of the copy shops
2640 violate that law. So the wrong of piracy that they engage in is not
2641 just a moral wrong, but a legal wrong, and not just an internationally
2642 legal wrong, but a locally legal wrong as well.
2643 </p><p>
2644 True, these local rules have, in effect, been imposed upon these
2645 countries. No country can be part of the world economy and choose
2646
2647 not to protect copyright internationally. We may have been born a
2648 pirate nation, but we will not allow any other nation to have a
2649 similar childhood.
2650 </p><p>
2651 If a country is to be treated as a sovereign, however, then its laws are
2652 its laws regardless of their source. The international law under which
2653 these nations live gives them some opportunities to escape the burden
2654 of intellectual property law.<a href="#ftn.idp39633536" class="footnote" name="idp39633536"><sup class="footnote">[71]</sup></a> In my view, more developing nations should take
2655 advantage of that opportunity, but when they don't, then their laws
2656 should be respected. And under the laws of these nations, this piracy
2657 is wrong.
2658 </p><a class="indexterm" name="idp39637456"></a><p>
2659 Alternatively, we could try to excuse this piracy by noting that in
2660 any case, it does no harm to the industry. The Chinese who get access
2661 to American CDs at 50 cents a copy are not people who would have
2662 bought those American CDs at $15 a copy. So no one really has any
2663 less money than they otherwise would have had.<a href="#ftn.idp39638800" class="footnote" name="idp39638800"><sup class="footnote">[72]</sup></a>
2664 </p><p>
2665 This is often true (though I have friends who have purchased many
2666 thousands of pirated DVDs who certainly have enough money to pay
2667 for the content they have taken), and it does mitigate to some degree
2668 the harm caused by such taking. Extremists in this debate love to say,
2669 <span class="quote">«<span class="quote">You wouldn't go into Barnes &amp; Noble and take a book off of the shelf
2670 without paying; why should it be any different with on-line music?</span>»</span>
2671 The difference is, of course, that when you take a book from Barnes &amp;
2672 Noble, it has one less book to sell. By contrast, when you take an MP3
2673 from a computer network, there is not one less CD that can be sold.
2674 The physics of piracy of the intangible are different from the physics of
2675 piracy of the tangible.
2676 </p><a class="indexterm" name="idp39643792"></a><p>
2677 This argument is still very weak. However, although copyright is a
2678 property right of a very special sort, it <span class="emphasis"><em>is</em></span> a
2679 property right. Like all property rights, the copyright gives the
2680 owner the right to decide the terms under which content is shared. If
2681 the copyright owner doesn't want to sell, she doesn't have to. There
2682 are exceptions: important statutory licenses that apply to copyrighted
2683 content regardless of the wish of the copyright owner. Those licenses
2684 give people the right to <span class="quote">«<span class="quote">take</span>»</span> copyrighted content whether or not the
2685 copyright owner wants to sell. But
2686
2687
2688 where the law does not give people the right to take content, it is
2689 wrong to take that content even if the wrong does no harm. If we have
2690 a property system, and that system is properly balanced to the
2691 technology of a time, then it is wrong to take property without the
2692 permission of a property owner. That is exactly what <span class="quote">«<span class="quote">property</span>»</span> means.
2693 </p><a class="indexterm" name="idp39647504"></a><a class="indexterm" name="idp39648256"></a><a class="indexterm" name="idp39649264"></a><a class="indexterm" name="idp39650272"></a><a class="indexterm" name="idp39651024"></a><a class="indexterm" name="idp39651776"></a><a class="indexterm" name="idp39652528"></a><a class="indexterm" name="idp39653536"></a><a class="indexterm" name="idp39654288"></a><a class="indexterm" name="idp39655296"></a><p>
2694 Finally, we could try to excuse this piracy with the argument that the
2695 piracy actually helps the copyright owner. When the Chinese <span class="quote">«<span class="quote">steal</span>»</span>
2696 Windows, that makes the Chinese dependent on Microsoft.  Microsoft
2697 loses the value of the software that was taken. But it gains users who
2698 are used to life in the Microsoft world. Over time, as the nation
2699 grows more wealthy, more and more people will buy software rather than
2700 steal it. And hence over time, because that buying will benefit
2701 Microsoft, Microsoft benefits from the piracy. If instead of pirating
2702 Microsoft Windows, the Chinese used the free GNU/Linux operating
2703 system, then these Chinese users would not eventually be buying
2704 Microsoft.  Without piracy, then, Microsoft would lose.
2705 </p><a class="indexterm" name="idp39657824"></a><p>
2706 This argument, too, is somewhat true. The addiction strategy is a good
2707 one. Many businesses practice it. Some thrive because of it. Law
2708 students, for example, are given free access to the two largest legal
2709 databases. The companies marketing both hope the students will become
2710 so used to their service that they will want to use it and not the
2711 other when they become lawyers (and must pay high subscription fees).
2712 </p><a class="indexterm" name="idp39660064"></a><a class="indexterm" name="idp39660816"></a><a class="indexterm" name="idp39661568"></a><a class="indexterm" name="idp39662320"></a><p>
2713 Still, the argument is not terribly persuasive. We don't give the
2714 alcoholic a defense when he steals his first beer, merely because that
2715 will make it more likely that he will buy the next three. Instead, we
2716 ordinarily allow businesses to decide for themselves when it is best
2717 to give their product away. If Microsoft fears the competition of
2718 GNU/Linux, then Microsoft can give its product away, as it did, for
2719 example, with Internet Explorer to fight Netscape. A property right
2720 means giving the property owner the right to say who gets access to
2721 what&#8212;at least ordinarily. And if the law properly balances the
2722 rights of the copyright owner with the rights of access, then
2723 violating the law is still wrong.
2724 </p><p>
2725
2726 Thus, while I understand the pull of these justifications for piracy,
2727 and I certainly see the motivation, in my view, in the end, these efforts
2728 at justifying commercial piracy simply don't cut it. This kind of piracy
2729 is rampant and just plain wrong. It doesn't transform the content it
2730 steals; it doesn't transform the market it competes in. It merely gives
2731 someone access to something that the law says he should not have.
2732 Nothing has changed to draw that law into doubt. This form of piracy
2733 is flat out wrong.
2734 </p><p>
2735 But as the examples from the four chapters that introduced this part
2736 suggest, even if some piracy is plainly wrong, not all <span class="quote">«<span class="quote">piracy</span>»</span> is. Or
2737 at least, not all <span class="quote">«<span class="quote">piracy</span>»</span> is wrong if that term is understood in the
2738 way it is increasingly used today. Many kinds of <span class="quote">«<span class="quote">piracy</span>»</span> are useful
2739 and productive, to produce either new content or new ways of doing
2740 business.  Neither our tradition nor any tradition has ever banned all
2741 <span class="quote">«<span class="quote">piracy</span>»</span> in that sense of the term.
2742 </p><p>
2743 This doesn't mean that there are no questions raised by the latest
2744 piracy concern, peer-to-peer file sharing. But it does mean that we
2745 need to understand the harm in peer-to-peer sharing a bit more before
2746 we condemn it to the gallows with the charge of piracy.
2747 </p><p>
2748 For (1) like the original Hollywood, p2p sharing escapes an overly
2749 controlling industry; and (2) like the original recording industry, it
2750 simply exploits a new way to distribute content; but (3) unlike cable
2751 TV, no one is selling the content that is shared on p2p services.
2752 </p><p>
2753 These differences distinguish p2p sharing from true piracy. They
2754 should push us to find a way to protect artists while enabling this
2755 sharing to survive.
2756 </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>
2757 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]
2758 the author of [his] profit.</span>»</span><a href="#ftn.idp39671520" class="footnote" name="idp39671520"><sup class="footnote">[73]</sup></a>
2759 This means we must determine whether
2760 and how much p2p sharing harms before we know how strongly the
2761
2762 law should seek to either prevent it or find an alternative to assure the
2763 author of his profit.
2764 </p><p>
2765 <a class="indexterm" name="idp39673920"></a>
2766 <a class="indexterm" name="idp39674672"></a>
2767 <a class="indexterm" name="idp39675680"></a>
2768 <a class="indexterm" name="idxnapster"></a>
2769 Peer-to-peer sharing was made famous by Napster. But the inventors of
2770 the Napster technology had not made any major technological
2771 innovations.  Like every great advance in innovation on the Internet
2772 (and, arguably, off the Internet as well<a href="#ftn.idp39677920" class="footnote" name="idp39677920"><sup class="footnote">[74]</sup></a>), Shawn Fanning and crew had simply
2773 put together components that had been developed independently.
2774 </p><p>
2775 <a class="indexterm" name="idp39681984"></a>
2776 <a class="indexterm" name="idp39682736"></a>
2777 <a class="indexterm" name="idp39683744"></a>
2778 The result was spontaneous combustion. Launched in July 1999,
2779 Napster amassed over 10 million users within nine months. After
2780 eighteen months, there were close to 80 million registered users of the
2781 system.<a href="#ftn.idp39684976" class="footnote" name="idp39684976"><sup class="footnote">[75]</sup></a>
2782 Courts quickly shut Napster down, but other services emerged
2783 to take its place. (Kazaa is currently the most popular p2p service. It
2784 boasts over 100 million members.) These services' systems are different
2785 architecturally, though not very different in function: Each enables
2786 users to make content available to any number of other users. With a
2787 p2p system, you can share your favorite songs with your best friend&#8212;
2788 or your 20,000 best friends.
2789 </p><a class="indexterm" name="idp39689584"></a><p>
2790 According to a number of estimates, a huge proportion of Americans
2791 have tasted file-sharing technology. A study by Ipsos-Insight in
2792 September 2002 estimated that 60 million Americans had downloaded
2793 music&#8212;28 percent of Americans older than 12.<a href="#ftn.idp39690016" class="footnote" name="idp39690016"><sup class="footnote">[76]</sup></a>
2794 A survey by the NPD group quoted in <em class="citetitle">The New York Times</em>
2795 estimated that 43 million citizens used file-sharing networks to
2796 exchange content in May 2003.<a href="#ftn.idp39693696" class="footnote" name="idp39693696"><sup class="footnote">[77]</sup></a>
2797 The vast majority of these are not kids. Whatever the actual figure, a
2798 massive quantity of content is being <span class="quote">«<span class="quote">taken</span>»</span> on these networks. The
2799 ease and inexpensiveness of file-sharing networks have inspired
2800 millions to enjoy music in a way that they hadn't before.
2801 </p><p>
2802 Some of this enjoying involves copyright infringement. Some of it does
2803 not. And even among the part that is technically copyright
2804 infringement, calculating the actual harm to copyright owners is more
2805 complicated than one might think. So consider&#8212;a bit more
2806 carefully than the polarized voices around this debate usually
2807 do&#8212;the kinds of sharing that file sharing enables, and the kinds
2808 of harm it entails.
2809 </p><a class="indexterm" name="idxpeertopeerppfilesharingfourtypesof"></a><a class="indexterm" name="idp39698352"></a><p>
2810
2811 File sharers share different kinds of content. We can divide these
2812 different kinds into four types.
2813 </p><div class="orderedlist"><ol class="orderedlist" type="A"><li class="listitem"><a class="indexterm" name="idp39701344"></a><p>
2814
2815 There are some who use sharing networks as substitutes for purchasing
2816 content. Thus, when a new Madonna CD is released, rather than buying
2817 the CD, these users simply take it. We might quibble about whether
2818 everyone who takes it would actually have bought it if sharing didn't
2819 make it available for free. Most probably wouldn't have, but clearly
2820 there are some who would.  The latter are the target of category A:
2821 users who download instead of purchasing.
2822 </p></li><li class="listitem"><p>
2823
2824 There are some who use sharing networks to sample music before
2825 purchasing it. Thus, a friend sends another friend an MP3 of an artist
2826 he's not heard of. The other friend then buys CDs by that artist. This
2827 is a kind of targeted advertising, quite likely to succeed.  If the
2828 friend recommending the album gains nothing from a bad recommendation,
2829 then one could expect that the recommendations will actually be quite
2830 good. The net effect of this sharing could increase the quantity of
2831 music purchased.
2832 </p></li><li class="listitem"><p>
2833
2834 There are many who use sharing networks to get access to copyrighted
2835 content that is no longer sold or that they would not have purchased
2836 because the transaction costs off the Net are too high. This use of
2837 sharing networks is among the most rewarding for many. Songs that were
2838 part of your childhood but have long vanished from the marketplace
2839 magically appear again on the network. (One friend told me that when
2840 she discovered Napster, she spent a solid weekend <span class="quote">«<span class="quote">recalling</span>»</span> old
2841 songs. She was astonished at the range and mix of content that was
2842 available.)  For content not sold, this is still technically a
2843 violation of copyright, though because the copyright owner is not
2844 selling the content anymore, the economic harm is zero&#8212;the same
2845 harm that occurs when I sell my collection of 1960s 45-rpm records to
2846 a local collector.
2847 </p></li><li class="listitem"><p>
2848
2849
2850 Finally, there are many who use sharing networks to get access
2851 to content that is not copyrighted or that the copyright owner
2852 wants to give away.
2853 </p></li></ol></div><a class="indexterm" name="idp39707824"></a><p>
2854 How do these different types of sharing balance out?
2855 </p><p>
2856 Let's start with some simple but important points. From the
2857 perspective of the law, only type D sharing is clearly legal. From the
2858 perspective of economics, only type A sharing is clearly
2859 harmful.<a href="#ftn.idp39709648" class="footnote" name="idp39709648"><sup class="footnote">[78]</sup></a>
2860 Type B sharing is illegal but plainly beneficial. Type C sharing is
2861 illegal, yet good for society (since more exposure to music is good)
2862 and harmless to the artist (since the work is not otherwise
2863 available). So how sharing matters on balance is a hard question to
2864 answer&#8212;and certainly much more difficult than the current
2865 rhetoric around the issue suggests.
2866 </p><p>
2867 Whether on balance sharing is harmful depends importantly on how
2868 harmful type A sharing is. Just as Edison complained about Hollywood,
2869 composers complained about piano rolls, recording artists complained
2870 about radio, and broadcasters complained about cable TV, the music
2871 industry complains that type A sharing is a kind of <span class="quote">«<span class="quote">theft</span>»</span> that is
2872 <span class="quote">«<span class="quote">devastating</span>»</span> the industry.
2873 </p><a class="indexterm" name="idxcassette"></a><p>
2874 While the numbers do suggest that sharing is harmful, how
2875 harmful is harder to reckon. It has long been the recording industry's
2876 practice to blame technology for any drop in sales. The history of
2877 cassette recording is a good example. As a study by Cap Gemini Ernst
2878 &amp; Young put it, <span class="quote">«<span class="quote">Rather than exploiting this new, popular
2879 technology, the labels fought it.</span>»</span><a href="#ftn.idp39716128" class="footnote" name="idp39716128"><sup class="footnote">[79]</sup></a>
2880 The labels claimed that every album taped was an album unsold, and
2881 when record sales fell by 11.4 percent in 1981, the industry claimed
2882 that its point was proved. Technology was the problem, and banning or
2883 regulating technology was the answer.
2884 </p><a class="indexterm" name="idp39720800"></a><p>
2885 Yet soon thereafter, and before Congress was given an opportunity to
2886 enact regulation, MTV was launched, and the industry had a record
2887 turnaround. <span class="quote">«<span class="quote">In the end,</span>»</span> Cap Gemini concludes,
2888 <span class="quote">«<span class="quote">the <span class="quote">&#8216;<span class="quote">crisis</span>&#8217;</span> &#8230; was not the fault of the
2889 tapers&#8212;who did not [stop after MTV came into
2890
2891 being]&#8212;but had to a large extent resulted from stagnation in musical
2892 innovation at the major labels.</span>»</span><a href="#ftn.idp39640176" class="footnote" name="idp39640176"><sup class="footnote">[80]</sup></a>
2893 </p><a class="indexterm" name="idp39724640"></a><p>
2894 But just because the industry was wrong before does not mean it is
2895 wrong today. To evaluate the real threat that p2p sharing presents to
2896 the industry in particular, and society in general&#8212;or at least
2897 the society that inherits the tradition that gave us the film
2898 industry, the record industry, the radio industry, cable TV, and the
2899 VCR&#8212;the question is not simply whether type A sharing is
2900 harmful. The question is also <span class="emphasis"><em>how</em></span> harmful type A
2901 sharing is, and how beneficial the other types of sharing are.
2902 </p><p>
2903 We start to answer this question by focusing on the net harm, from the
2904 standpoint of the industry as a whole, that sharing networks cause.
2905 The <span class="quote">«<span class="quote">net harm</span>»</span> to the industry as a whole is the amount by which type
2906 A sharing exceeds type B. If the record companies sold more records
2907 through sampling than they lost through substitution, then sharing
2908 networks would actually benefit music companies on balance. They would
2909 therefore have little <span class="emphasis"><em>static</em></span> reason to resist
2910 them.
2911
2912 </p><a class="indexterm" name="idxcdssales"></a><p>
2913 Could that be true? Could the industry as a whole be gaining because
2914 of file sharing? Odd as that might sound, the data about CD sales
2915 actually suggest it might be close.
2916 </p><p>
2917 In 2002, the RIAA reported that CD sales had fallen by 8.9 percent,
2918 from 882 million to 803 million units; revenues fell 6.7
2919 percent.<a href="#ftn.idp39731072" class="footnote" name="idp39731072"><sup class="footnote">[81]</sup></a>
2920 This confirms a trend over the past few years. The RIAA blames
2921 Internet piracy for the trend, though there are many other causes that
2922 could account for this drop. SoundScan, for example, reports a more
2923 than 20 percent drop in the number of CDs released since 1999. That no
2924 doubt accounts for some of the decrease in sales. Rising prices could
2925 account for at least some of the loss. <span class="quote">«<span class="quote">From 1999 to 2001, the average
2926 price of a CD rose 7.2 percent, from $13.04 to $14.19.</span>»</span><a href="#ftn.idp39735600" class="footnote" name="idp39735600"><sup class="footnote">[82]</sup></a>
2927 Competition from other forms of media could also account for some of
2928 the decline. As Jane Black of <em class="citetitle">BusinessWeek</em> notes, <span class="quote">«<span class="quote">The
2929 soundtrack to the film <em class="citetitle">High Fidelity</em> has a list price of
2930 $18.98. You could get the whole movie [on DVD] for
2931 $19.99.</span>»</span><a href="#ftn.idp39739616" class="footnote" name="idp39739616"><sup class="footnote">[83]</sup></a>
2932 </p><p>
2933
2934
2935 But let's assume the RIAA is right, and all of the decline in CD sales
2936 is because of Internet sharing. Here's the rub: In the same period
2937 that the RIAA estimates that 803 million CDs were sold, the RIAA
2938 estimates that 2.1 billion CDs were downloaded for free. Thus,
2939 although 2.6 times the total number of CDs sold were downloaded for
2940 free, sales revenue fell by just 6.7 percent.
2941 </p><p>
2942 There are too many different things happening at the same time to
2943 explain these numbers definitively, but one conclusion is unavoidable:
2944 The recording industry constantly asks, <span class="quote">«<span class="quote">What's the difference between
2945 downloading a song and stealing a CD?</span>»</span>&#8212;but their own numbers
2946 reveal the difference. If I steal a CD, then there is one less CD to
2947 sell. Every taking is a lost sale. But on the basis of the numbers the
2948 RIAA provides, it is absolutely clear that the same is not true of
2949 downloads. If every download were a lost sale&#8212;if every use of
2950 Kazaa <span class="quote">«<span class="quote">rob[bed] the author of [his] profit</span>»</span>&#8212;then the industry
2951 would have suffered a 100 percent drop in sales last year, not a 7
2952 percent drop. If 2.6 times the number of CDs sold were downloaded for
2953 free, and yet sales revenue dropped by just 6.7 percent, then there is
2954 a huge difference between <span class="quote">«<span class="quote">downloading a song and stealing a CD.</span>»</span>
2955 </p><a class="indexterm" name="idp39744032"></a><p>
2956 These are the harms&#8212;alleged and perhaps exaggerated but, let's
2957 assume, real. What of the benefits? File sharing may impose costs on
2958 the recording industry. What value does it produce in addition to
2959 these costs?
2960 </p><p>
2961 One benefit is type C sharing&#8212;making available content that
2962 is technically still under copyright but is no longer commercially
2963 available.  This is not a small category of content. There are
2964 millions of tracks that are no longer commercially
2965 available.<a href="#ftn.idp39745152" class="footnote" name="idp39745152"><sup class="footnote">[84]</sup></a>
2966 And while it's conceivable that some of this content is not available
2967 because the artist producing the content doesn't want it to be made
2968 available, the vast majority of it is unavailable solely because the
2969 publisher or the distributor has decided it no longer makes economic
2970 sense <span class="emphasis"><em>to the company</em></span> to make it available.
2971 </p><a class="indexterm" name="idp39748640"></a><a class="indexterm" name="idp39749648"></a><p>
2972 In real space&#8212;long before the Internet&#8212;the market had a simple
2973
2974 response to this problem: used book and record stores. There are
2975 thousands of used book and used record stores in America
2976 today.<a href="#ftn.idp39751136" class="footnote" name="idp39751136"><sup class="footnote">[85]</sup></a>
2977 These stores buy content from owners, then sell the content they
2978 buy. And under American copyright law, when they buy and sell this
2979 content, <span class="emphasis"><em>even if the content is still under
2980 copyright</em></span>, the copyright owner doesn't get a dime. Used
2981 book and record stores are commercial entities; their owners make
2982 money from the content they sell; but as with cable companies before
2983 statutory licensing, they don't have to pay the copyright owner for
2984 the content they sell.
2985 </p><a class="indexterm" name="idp39756320"></a><a class="indexterm" name="idp39757328"></a><a class="indexterm" name="idxinternetbookson"></a><p>
2986 Type C sharing, then, is very much like used book stores or used
2987 record stores. It is different, of course, because the person making
2988 the content available isn't making money from making the content
2989 available.  It is also different, of course, because in real space,
2990 when I sell a record, I don't have it anymore, while in cyberspace,
2991 when someone shares my 1949 recording of Bernstein's <span class="quote">«<span class="quote">Two Love Songs,</span>»</span>
2992 I still have it. That difference would matter economically if the
2993 owner of the copyright were selling the record in competition to my
2994 sharing. But we're talking about the class of content that is not
2995 currently commercially available. The Internet is making it available,
2996 through cooperative sharing, without competing with the market.
2997 </p><p>
2998 It may well be, all things considered, that it would be better if the
2999 copyright owner got something from this trade. But just because it may
3000 well be better, it doesn't follow that it would be good to ban used book
3001 stores. Or put differently, if you think that type C sharing should be
3002 stopped, do you think that libraries and used book stores should be
3003 shut as well?
3004 </p><a class="indexterm" name="idxbooksfreeonline1"></a><a class="indexterm" name="idp39763344"></a><a class="indexterm" name="idp39764096"></a><p>
3005 Finally, and perhaps most importantly, file-sharing networks enable
3006 type D sharing to occur&#8212;the sharing of content that copyright owners
3007 want to have shared or for which there is no continuing copyright. This
3008 sharing clearly benefits authors and society. Science fiction author
3009 Cory Doctorow, for example, released his first novel, <em class="citetitle">Down and Out in
3010 the Magic Kingdom</em>, both free on-line and in bookstores on the same
3011
3012
3013 day. His (and his publisher's) thinking was that the on-line distribution
3014 would be a great advertisement for the <span class="quote">«<span class="quote">real</span>»</span> book. People would read
3015 part on-line, and then decide whether they liked the book or not. If
3016 they liked it, they would be more likely to buy it. Doctorow's content is
3017 type D content. If sharing networks enable his work to be spread, then
3018 both he and society are better off. (Actually, much better off: It is a
3019 great book!)
3020 </p><a class="indexterm" name="idp39767184"></a><p>
3021 Likewise for work in the public domain: This sharing benefits society
3022 with no legal harm to authors at all. If efforts to solve the problem
3023 of type A sharing destroy the opportunity for type D sharing, then we
3024 lose something important in order to protect type A content.
3025 </p><p>
3026 The point throughout is this: While the recording industry
3027 understandably says, <span class="quote">«<span class="quote">This is how much we've lost,</span>»</span> we must also ask,
3028 <span class="quote">«<span class="quote">How much has society gained from p2p sharing? What are the
3029 efficiencies?  What is the content that otherwise would be
3030 unavailable?</span>»</span>
3031 </p><a class="indexterm" name="idp39770112"></a><p>
3032 For unlike the piracy I described in the first section of this
3033 chapter, much of the <span class="quote">«<span class="quote">piracy</span>»</span> that file sharing enables is plainly
3034 legal and good.  And like the piracy I described in chapter
3035 <a class="xref" href="#pirates" title="Chapter 4. Chapter Four: «Pirates»">4</a>, much of
3036 this piracy is motivated by a new way of spreading content caused by
3037 changes in the technology of distribution. Thus, consistent with the
3038 tradition that gave us Hollywood, radio, the recording industry, and
3039 cable TV, the question we should be asking about file sharing is how
3040 best to preserve its benefits while minimizing (to the extent
3041 possible) the wrongful harm it causes artists. The question is one of
3042 balance. The law should seek that balance, and that balance will be
3043 found only with time.
3044 </p><p>
3045 <span class="quote">«<span class="quote">But isn't the war just a war against illegal sharing? Isn't the target
3046 just what you call type A sharing?</span>»</span>
3047 </p><a class="indexterm" name="idxcopyrightinfringementlawsuitszerotolerancein"></a><a class="indexterm" name="idxnapsterinfringingmaterialblockedby"></a><a class="indexterm" name="idxpeertopeerppfilesharinginfringementprotectionsin"></a><p>
3048 You would think. And we should hope. But so far, it is not. The effect
3049 of the war purportedly on type A sharing alone has been felt far
3050 beyond that one class of sharing. That much is obvious from the
3051 Napster case itself. When Napster told the district court that it had
3052 developed a technology to block the transfer of 99.4 percent of
3053 identified
3054
3055
3056 infringing material, the district court told counsel for Napster 99.4
3057 percent was not good enough. Napster had to push the infringements
3058 <span class="quote">«<span class="quote">down to zero.</span>»</span><a href="#ftn.idp39779984" class="footnote" name="idp39779984"><sup class="footnote">[86]</sup></a>
3059 </p><a class="indexterm" name="idp39782240"></a><a class="indexterm" name="idp39783216"></a><p>
3060 If 99.4 percent is not good enough, then this is a war on file-sharing
3061 technologies, not a war on copyright infringement. There is no way to
3062 assure that a p2p system is used 100 percent of the time in compliance
3063 with the law, any more than there is a way to assure that 100 percent of
3064 VCRs or 100 percent of Xerox machines or 100 percent of handguns
3065 are used in compliance with the law. Zero tolerance means zero p2p.
3066 The court's ruling means that we as a society must lose the benefits of
3067 p2p, even for the totally legal and beneficial uses they serve, simply to
3068 assure that there are zero copyright infringements caused by p2p.
3069 </p><a class="indexterm" name="idp39785216"></a><p>
3070 Zero tolerance has not been our history. It has not produced the
3071 content industry that we know today. The history of American law has
3072 been a process of balance. As new technologies changed the way content
3073 was distributed, the law adjusted, after some time, to the new
3074 technology.  In this adjustment, the law sought to ensure the
3075 legitimate rights of creators while protecting innovation. Sometimes
3076 this has meant more rights for creators. Sometimes less.
3077 </p><a class="indexterm" name="idp39787056"></a><a class="indexterm" name="idp39788064"></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="idp39794768"></a><a class="indexterm" name="idp39795776"></a><a class="indexterm" name="idp39796784"></a><a class="indexterm" name="idp39797792"></a><a class="indexterm" name="idp39798800"></a><a class="indexterm" name="idp39799552"></a><p>
3078 So, as we've seen, when <span class="quote">«<span class="quote">mechanical reproduction</span>»</span> threatened the
3079 interests of composers, Congress balanced the rights of composers
3080 against the interests of the recording industry. It granted rights to
3081 composers, but also to the recording artists: Composers were to be
3082 paid, but at a price set by Congress. But when radio started
3083 broadcasting the recordings made by these recording artists, and they
3084 complained to Congress that their <span class="quote">«<span class="quote">creative property</span>»</span> was not being
3085 respected (since the radio station did not have to pay them for the
3086 creativity it broadcast), Congress rejected their claim. An indirect
3087 benefit was enough.
3088 </p><a class="indexterm" name="idxcabletv2"></a><p>
3089 Cable TV followed the pattern of record albums. When the courts
3090 rejected the claim that cable broadcasters had to pay for the content
3091 they rebroadcast, Congress responded by giving broadcasters a right to
3092 compensation, but at a level set by the law. It likewise gave cable
3093 companies the right to the content, so long as they paid the statutory
3094 price.
3095 </p><a class="indexterm" name="idp39804384"></a><a class="indexterm" name="idp39805360"></a><p>
3096
3097
3098 This compromise, like the compromise affecting records and player
3099 pianos, served two important goals&#8212;indeed, the two central goals
3100 of any copyright legislation. First, the law assured that new
3101 innovators would have the freedom to develop new ways to deliver
3102 content.  Second, the law assured that copyright holders would be paid
3103 for the content that was distributed. One fear was that if Congress
3104 simply required cable TV to pay copyright holders whatever they
3105 demanded for their content, then copyright holders associated with
3106 broadcasters would use their power to stifle this new technology,
3107 cable. But if Congress had permitted cable to use broadcasters'
3108 content for free, then it would have unfairly subsidized cable. Thus
3109 Congress chose a path that would assure
3110 <span class="emphasis"><em>compensation</em></span> without giving the past
3111 (broadcasters) control over the future (cable).
3112 </p><a class="indexterm" name="idp39808384"></a><a class="indexterm" name="idp39809248"></a><a class="indexterm" name="idp39810224"></a><a class="indexterm" name="idxbetamax"></a><a class="indexterm" name="idxcassettevcrs1"></a><a class="indexterm" name="idxsonybetamaxtechnologydevelopedby"></a><p>
3113 In the same year that Congress struck this balance, two major
3114 producers and distributors of film content filed a lawsuit against
3115 another technology, the video tape recorder (VTR, or as we refer to
3116 them today, VCRs) that Sony had produced, the Betamax. Disney's and
3117 Universal's claim against Sony was relatively simple: Sony produced a
3118 device, Disney and Universal claimed, that enabled consumers to engage
3119 in copyright infringement. Because the device that Sony built had a
3120 <span class="quote">«<span class="quote">record</span>»</span> button, the device could be used to record copyrighted movies
3121 and shows. Sony was therefore benefiting from the copyright
3122 infringement of its customers. It should therefore, Disney and
3123 Universal claimed, be partially liable for that infringement.
3124 </p><a class="indexterm" name="idp39816944"></a><p>
3125 There was something to Disney's and Universal's claim. Sony did
3126 decide to design its machine to make it very simple to record television
3127 shows. It could have built the machine to block or inhibit any direct
3128 copying from a television broadcast. Or possibly, it could have built the
3129 machine to copy only if there were a special <span class="quote">«<span class="quote">copy me</span>»</span> signal on the
3130 line. It was clear that there were many television shows that did not
3131 grant anyone permission to copy. Indeed, if anyone had asked, no
3132 doubt the majority of shows would not have authorized copying. And
3133
3134 in the face of this obvious preference, Sony could have designed its
3135 system to minimize the opportunity for copyright infringement. It did
3136 not, and for that, Disney and Universal wanted to hold it responsible
3137 for the architecture it chose.
3138 </p><a class="indexterm" name="idxcongressusoncopyrightlaws3"></a><a class="indexterm" name="idp39821264"></a><a class="indexterm" name="idxvalentijackonvcrtechnology"></a><p>
3139 MPAA president Jack Valenti became the studios' most vocal
3140 champion. Valenti called VCRs <span class="quote">«<span class="quote">tapeworms.</span>»</span> He warned,
3141 <span class="quote">«<span class="quote">When there are 20, 30, 40 million of these VCRs in the land, we
3142 will be invaded by millions of <span class="quote">&#8216;<span class="quote">tapeworms,</span>&#8217;</span> eating away
3143 at the very heart and essence of the most precious asset the copyright
3144 owner has, his copyright.</span>»</span><a href="#ftn.idp39825392" class="footnote" name="idp39825392"><sup class="footnote">[87]</sup></a>
3145 <span class="quote">«<span class="quote">One does not have to be trained in sophisticated marketing and
3146 creative judgment,</span>»</span> he told Congress, <span class="quote">«<span class="quote">to understand the devastation
3147 on the after-theater marketplace caused by the hundreds of millions of
3148 tapings that will adversely impact on the future of the creative
3149 community in this country. It is simply a question of basic economics
3150 and plain common sense.</span>»</span><a href="#ftn.idp39827424" class="footnote" name="idp39827424"><sup class="footnote">[88]</sup></a>
3151 Indeed, as surveys would later show, 45
3152 percent of VCR owners had movie libraries of ten videos or more<a href="#ftn.idp39828400" class="footnote" name="idp39828400"><sup class="footnote">[89]</sup></a>
3153 &#8212; a use the Court would later hold was not <span class="quote">«<span class="quote">fair.</span>»</span> By
3154 <span class="quote">«<span class="quote">allowing VCR owners to copy freely by the means of an exemption from
3155 copyright infringement without creating a mechanism to compensate
3156 copyright owners,</span>»</span> Valenti testified, Congress would <span class="quote">«<span class="quote">take from the
3157 owners the very essence of their property: the exclusive right to
3158 control who may use their work, that is, who may copy it and thereby
3159 profit from its reproduction.</span>»</span><a href="#ftn.idp39831328" class="footnote" name="idp39831328"><sup class="footnote">[90]</sup></a>
3160 </p><a class="indexterm" name="idp39832320"></a><a class="indexterm" name="idp39833296"></a><p>
3161 It took eight years for this case to be resolved by the Supreme
3162 Court. In the interim, the Ninth Circuit Court of Appeals, which
3163 includes Hollywood in its jurisdiction&#8212;leading Judge Alex
3164 Kozinski, who sits on that court, refers to it as the <span class="quote">«<span class="quote">Hollywood
3165 Circuit</span>»</span>&#8212;held that Sony would be liable for the copyright
3166 infringement made possible by its machines. Under the Ninth Circuit's
3167 rule, this totally familiar technology&#8212;which Jack Valenti had
3168 called <span class="quote">«<span class="quote">the Boston Strangler of the American film industry</span>»</span> (worse
3169 yet, it was a <span class="emphasis"><em>Japanese</em></span> Boston Strangler of the
3170 American film industry)&#8212;was an illegal
3171 technology.<a href="#ftn.idp39835408" class="footnote" name="idp39835408"><sup class="footnote">[91]</sup></a>
3172 <a class="indexterm" name="idp39837888"></a>
3173 </p><a class="indexterm" name="idp39838768"></a><p>
3174 But the Supreme Court reversed the decision of the Ninth Circuit.
3175
3176
3177 And in its reversal, the Court clearly articulated its understanding of
3178 when and whether courts should intervene in such disputes. As the
3179 Court wrote,
3180 </p><div class="blockquote"><blockquote class="blockquote"><p>
3181 Sound policy, as well as history, supports our consistent deference
3182 to Congress when major technological innovations alter the
3183                 market
3184 for copyrighted materials. Congress has the constitutional
3185                 authority
3186 and the institutional ability to accommodate fully the
3187 varied permutations of competing interests that are inevitably
3188                 implicated
3189 by such new technology.<a href="#ftn.idp39841536" class="footnote" name="idp39841536"><sup class="footnote">[92]</sup></a>
3190 </p></blockquote></div><a class="indexterm" name="idp39843328"></a><p>
3191 Congress was asked to respond to the Supreme Court's decision.  But as
3192 with the plea of recording artists about radio broadcasts, Congress
3193 ignored the request. Congress was convinced that American film got
3194 enough, this <span class="quote">«<span class="quote">taking</span>»</span> notwithstanding.  If we put these cases
3195 together, a pattern is clear:
3196 </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="idp39857504"></a><p>
3197 In each case throughout our history, a new technology changed the
3198 way content was distributed.<a href="#ftn.idp39858848" class="footnote" name="idp39858848"><sup class="footnote">[93]</sup></a>
3199 In each case, throughout our history,
3200 that change meant that someone got a <span class="quote">«<span class="quote">free ride</span>»</span> on someone else's
3201 work.
3202 </p><p>
3203 In <span class="emphasis"><em>none</em></span> of these cases did either the courts or
3204 Congress eliminate all free riding. In <span class="emphasis"><em>none</em></span> of
3205 these cases did the courts or Congress insist that the law should
3206 assure that the copyright holder get all the value that his copyright
3207 created. In every case, the copyright owners complained of <span class="quote">«<span class="quote">piracy.</span>»</span>
3208 In every case, Congress acted to recognize some of the legitimacy in
3209 the behavior of the <span class="quote">«<span class="quote">pirates.</span>»</span> In each case, Congress allowed some new
3210 technology to benefit from content made before. It balanced the
3211 interests at stake.
3212
3213 </p><a class="indexterm" name="idp39867536"></a><p>
3214 When you think across these examples, and the other examples that
3215 make up the first four chapters of this section, this balance makes
3216 sense. Was Walt Disney a pirate? Would doujinshi be better if creators
3217 had to ask permission? Should tools that enable others to capture and
3218 spread images as a way to cultivate or criticize our culture be better
3219                 regulated?
3220 Is it really right that building a search engine should expose you
3221 to $15 million in damages? Would it have been better if Edison had
3222 controlled film? Should every cover band have to hire a lawyer to get
3223 permission to record a song?
3224 </p><a class="indexterm" name="idp39869280"></a><p>
3225 We could answer yes to each of these questions, but our tradition
3226 has answered no. In our tradition, as the Supreme Court has stated,
3227 copyright <span class="quote">«<span class="quote">has never accorded the copyright owner complete control
3228 over all possible uses of his work.</span>»</span><a href="#ftn.idp39871072" class="footnote" name="idp39871072"><sup class="footnote">[94]</sup></a>
3229 Instead, the particular uses that the law regulates have been defined
3230 by balancing the good that comes from granting an exclusive right
3231 against the burdens such an exclusive right creates. And this
3232 balancing has historically been done <span class="emphasis"><em>after</em></span> a
3233 technology has matured, or settled into the mix of technologies that
3234 facilitate the distribution of content.
3235 </p><p>
3236 We should be doing the same thing today. The technology of the
3237 Internet is changing quickly. The way people connect to the Internet
3238 (wires vs. wireless) is changing very quickly. No doubt the network
3239 should not become a tool for <span class="quote">«<span class="quote">stealing</span>»</span> from artists. But neither
3240 should the law become a tool to entrench one particular way in which
3241 artists (or more accurately, distributors) get paid. As I describe in
3242 some detail in the last chapter of this book, we should be securing
3243 income to artists while we allow the market to secure the most
3244 efficient way to promote and distribute content. This will require
3245 changes in the law, at least in the interim. These changes should be
3246 designed to balance the protection of the law against the strong
3247 public interest that innovation continue.
3248 </p><p>
3249
3250
3251 This is especially true when a new technology enables a vastly
3252 superior mode of distribution. And this p2p has done. P2p technologies
3253 can be ideally efficient in moving content across a widely diverse
3254 network.  Left to develop, they could make the network vastly more
3255 efficient.  Yet these <span class="quote">«<span class="quote">potential public benefits,</span>»</span> as John Schwartz
3256 writes in <em class="citetitle">The New York Times</em>, <span class="quote">«<span class="quote">could be delayed in the P2P
3257 fight.</span>»</span><a href="#ftn.idp39876912" class="footnote" name="idp39876912"><sup class="footnote">[95]</sup></a>
3258 </p><p>
3259 <span class="strong"><strong>Yet when anyone</strong></span> begins to talk
3260 about <span class="quote">«<span class="quote">balance,</span>»</span> the copyright warriors raise a different
3261 argument. <span class="quote">«<span class="quote">All this hand waving about balance and
3262 incentives,</span>»</span> they say, <span class="quote">«<span class="quote">misses a fundamental point. Our
3263 content,</span>»</span> the warriors insist, <span class="quote">«<span class="quote">is our
3264 <span class="emphasis"><em>property</em></span>. Why should we wait for Congress to
3265 <span class="quote">&#8216;<span class="quote">rebalance</span>&#8217;</span> our property rights? Do you have to wait
3266 before calling the police when your car has been stolen? And why
3267 should Congress deliberate at all about the merits of this theft? Do
3268 we ask whether the car thief had a good use for the car before we
3269 arrest him?</span>»</span>
3270 </p><p>
3271 <span class="quote">«<span class="quote">It is <span class="emphasis"><em>our property</em></span>,</span>»</span> the warriors
3272 insist. <span class="quote">«<span class="quote">And it should be protected just as any other property
3273 is protected.</span>»</span>
3274 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp39605760" class="footnote"><p><a href="#idp39605760" class="para"><sup class="para">[70] </sup></a>
3275
3276 See IFPI (International Federation of the Phonographic Industry), <em class="citetitle">The
3277 Recording Industry Commercial Piracy Report 2003</em>, July 2003, available
3278 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #14</a>. See
3279 also Ben Hunt, <span class="quote">«<span class="quote">Companies Warned on Music Piracy Risk,</span>»</span> <em class="citetitle">Financial
3280 Times</em>, 14 February 2003, 11.
3281 </p></div><div id="ftn.idp39633536" class="footnote"><p><a href="#idp39633536" class="para"><sup class="para">[71] </sup></a>
3282
3283 See Peter Drahos with John Braithwaite, Information Feudalism:
3284 <em class="citetitle">Who Owns the Knowledge Economy?</em> (New York: The
3285 New Press, 2003), 10&#8211;13, 209.  The Trade-Related Aspects of
3286 Intellectual Property Rights (TRIPS) agreement obligates member
3287 nations to create administrative and enforcement mechanisms for
3288 intellectual property rights, a costly proposition for developing
3289 countries. Additionally, patent rights may lead to higher prices for
3290 staple industries such as agriculture. Critics of TRIPS question the
3291 disparity between burdens imposed upon developing countries and
3292 benefits conferred to industrialized nations. TRIPS does permit
3293 governments to use patents for public, noncommercial uses without
3294 first obtaining the patent holder's permission. Developing nations may
3295 be able to use this to gain the benefits of foreign patents at lower
3296 prices. This is a promising strategy for developing nations within the
3297 TRIPS framework.
3298 <a class="indexterm" name="idp39534560"></a>
3299 <a class="indexterm" name="idp39636240"></a>
3300 </p></div><div id="ftn.idp39638800" class="footnote"><p><a href="#idp39638800" class="para"><sup class="para">[72] </sup></a>
3301
3302 For an analysis of the economic impact of copying technology, see Stan
3303 Liebowitz, <em class="citetitle">Rethinking the Network Economy</em> (New York: Amacom, 2002),
3304 144&#8211;90. <span class="quote">«<span class="quote">In some instances &#8230; the impact of piracy on the
3305 copyright holder's ability to appropriate the value of the work will
3306 be negligible. One obvious instance is the case where the individual
3307 engaging in pirating would not have purchased an original even if
3308 pirating were not an option.</span>»</span> Ibid., 149.
3309 <a class="indexterm" name="idp39640608"></a>
3310 </p></div><div id="ftn.idp39671520" class="footnote"><p><a href="#idp39671520" class="para"><sup class="para">[73] </sup></a>
3311
3312 <em class="citetitle">Bach</em> v. <em class="citetitle">Longman</em>, 98 Eng. Rep. 1274 (1777).
3313 </p></div><div id="ftn.idp39677920" class="footnote"><p><a href="#idp39677920" class="para"><sup class="para">[74] </sup></a>
3314
3315 <a class="indexterm" name="idp39678560"></a>
3316 See Clayton M. Christensen, <em class="citetitle">The Innovator's Dilemma: The Revolutionary
3317 National Bestseller That Changed the Way We Do Business</em> (New York:
3318 HarperBusiness, 2000). Professor Christensen examines why companies
3319 that give rise to and dominate a product area are frequently unable to
3320 come up with the most creative, paradigm-shifting uses for their own
3321 products.  This job usually falls to outside innovators, who
3322 reassemble existing technology in inventive ways. For a discussion of
3323 Christensen's ideas, see Lawrence Lessig, <em class="citetitle">Future</em>, 89&#8211;92, 139.
3324
3325 <a class="indexterm" name="idp39639920"></a>
3326 </p></div><div id="ftn.idp39684976" class="footnote"><p><a href="#idp39684976" class="para"><sup class="para">[75] </sup></a>
3327
3328 See Carolyn Lochhead, <span class="quote">«<span class="quote">Silicon Valley Dream, Hollywood Nightmare,</span>»</span> <em class="citetitle">San
3329 Francisco Chronicle</em>, 24 September 2002, A1; <span class="quote">«<span class="quote">Rock 'n' Roll Suicide,</span>»</span>
3330 <em class="citetitle">New Scientist</em>, 6 July 2002, 42; Benny Evangelista, <span class="quote">«<span class="quote">Napster Names CEO,
3331 Secures New Financing,</span>»</span> <em class="citetitle">San Francisco Chronicle</em>, 23 May 2003, C1;
3332 <span class="quote">«<span class="quote">Napster's Wake-Up Call,</span>»</span> <em class="citetitle">Economist</em>, 24 June 2000, 23; John Naughton,
3333 <span class="quote">«<span class="quote">Hollywood at War with the Internet</span>»</span> (London) <em class="citetitle">Times</em>, 26 July 2002, 18.
3334 </p></div><div id="ftn.idp39690016" class="footnote"><p><a href="#idp39690016" class="para"><sup class="para">[76] </sup></a>
3335
3336
3337 See Ipsos-Insight, <em class="citetitle">TEMPO: Keeping Pace with Online Music Distribution</em>
3338 (September 2002), reporting that 28 percent of Americans aged twelve
3339 and older have downloaded music off of the Internet and 30 percent have
3340 listened to digital music files stored on their computers.
3341 </p></div><div id="ftn.idp39693696" class="footnote"><p><a href="#idp39693696" class="para"><sup class="para">[77] </sup></a>
3342
3343 Amy Harmon, <span class="quote">«<span class="quote">Industry Offers a Carrot in Online Music Fight,</span>»</span> <em class="citetitle">New
3344 York Times</em>, 6 June 2003, A1.
3345 </p></div><div id="ftn.idp39709648" class="footnote"><p><a href="#idp39709648" class="para"><sup class="para">[78] </sup></a>
3346
3347 See Liebowitz, <em class="citetitle">Rethinking the Network Economy</em>, 148&#8211;49.
3348 <a class="indexterm" name="idp39680608"></a>
3349 </p></div><div id="ftn.idp39716128" class="footnote"><p><a href="#idp39716128" class="para"><sup class="para">[79] </sup></a>
3350
3351 <a class="indexterm" name="idp39716768"></a>
3352 <a class="indexterm" name="idp39717520"></a>
3353 See Cap Gemini Ernst &amp; Young, <em class="citetitle">Technology Evolution and the
3354 Music Industry's Business Model Crisis</em> (2003), 3. This report
3355 describes the music industry's effort to stigmatize the budding
3356 practice of cassette taping in the 1970s, including an advertising
3357 campaign featuring a cassette-shape skull and the caption <span class="quote">«<span class="quote">Home taping
3358 is killing music.</span>»</span>  At the time digital audio tape became a threat,
3359 the Office of Technical Assessment conducted a survey of consumer
3360 behavior. In 1988, 40 percent of consumers older than ten had taped
3361 music to a cassette format. U.S.  Congress, Office of Technology
3362 Assessment, <em class="citetitle">Copyright and Home Copying: Technology Challenges the Law</em>,
3363 OTA-CIT-422 (Washington, D.C.: U.S.  Government Printing Office,
3364 October 1989), 145&#8211;56.  </p></div><div id="ftn.idp39640176" class="footnote"><p><a href="#idp39640176" class="para"><sup class="para">[80] </sup></a>
3365
3366 U.S. Congress, <em class="citetitle">Copyright and Home Copying</em>, 4.
3367 </p></div><div id="ftn.idp39731072" class="footnote"><p><a href="#idp39731072" class="para"><sup class="para">[81] </sup></a>
3368
3369 See Recording Industry Association of America, <em class="citetitle">2002 Yearend Statistics</em>,
3370 available at
3371 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #15</a>. A later
3372 report indicates even greater losses. See Recording Industry
3373 Association of America, <em class="citetitle">Some Facts About Music Piracy</em>, 25 June 2003,
3374 available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
3375 #16</a>: <span class="quote">«<span class="quote">In the past four years, unit shipments of recorded music
3376 have fallen by 26 percent from 1.16 billion units in to 860 million
3377 units in 2002 in the United States (based on units shipped).  In terms
3378 of sales, revenues are down 14 percent, from $14.6 billion in to $12.6
3379 billion last year (based on U.S. dollar value of shipments). The music
3380 industry worldwide has gone from a $39 billion industry in 2000 down
3381 to a $32 billion industry in 2002 (based on U.S. dollar value of
3382 shipments).</span>»</span>
3383 </p></div><div id="ftn.idp39735600" class="footnote"><p><a href="#idp39735600" class="para"><sup class="para">[82] </sup></a>
3384 Jane Black, <span class="quote">«<span class="quote">Big Music's Broken Record,</span>»</span> BusinessWeek online, 13
3385 February 2003, available at
3386 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #17</a>.
3387 <a class="indexterm" name="idp39737376"></a>
3388 </p></div><div id="ftn.idp39739616" class="footnote"><p><a href="#idp39739616" class="para"><sup class="para">[83] </sup></a>
3389
3390 Ibid.
3391 </p></div><div id="ftn.idp39745152" class="footnote"><p><a href="#idp39745152" class="para"><sup class="para">[84] </sup></a>
3392
3393 By one estimate, 75 percent of the music released by the major labels
3394 is no longer in print. See Online Entertainment and Copyright
3395 Law&#8212;Coming Soon to a Digital Device Near You: Hearing Before the
3396 Senate Committee on the Judiciary, 107th Cong., 1st sess. (3 April
3397 2001) (prepared statement of the Future of Music Coalition), available
3398 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #18</a>.
3399 </p></div><div id="ftn.idp39751136" class="footnote"><p><a href="#idp39751136" class="para"><sup class="para">[85] </sup></a>
3400
3401 <a class="indexterm" name="idp39751776"></a>
3402 While there are not good estimates of the number of used record stores
3403 in existence, in 2002, there were 7,198 used book dealers in the
3404 United States, an increase of 20 percent since 1993. See Book Hunter
3405 Press, <em class="citetitle">The Quiet Revolution: The Expansion of the Used Book
3406 Market</em> (2002), available at
3407 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #19</a>. Used
3408 records accounted for $260 million in sales in 2002. See National
3409 Association of Recording Merchandisers, <span class="quote">«<span class="quote">2002 Annual Survey
3410 Results,</span>»</span> available at
3411 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #20</a>.
3412 </p></div><div id="ftn.idp39779984" class="footnote"><p><a href="#idp39779984" class="para"><sup class="para">[86] </sup></a>
3413
3414 See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34-
3415 35 (N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183
3416 MHP, available at
3417
3418 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #21</a>. For an
3419 account of the litigation and its toll on Napster, see Joseph Menn,
3420 <em class="citetitle">All the Rave: The Rise and Fall of Shawn Fanning's Napster</em> (New
3421 York: Crown Business, 2003), 269&#8211;82.
3422 </p></div><div id="ftn.idp39825392" class="footnote"><p><a href="#idp39825392" class="para"><sup class="para">[87] </sup></a>
3423
3424 Copyright Infringements (Audio and Video Recorders): Hearing on
3425 S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st
3426 and 2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion
3427 Picture Association of America, Inc.).
3428 </p></div><div id="ftn.idp39827424" class="footnote"><p><a href="#idp39827424" class="para"><sup class="para">[88] </sup></a>
3429
3430 Copyright Infringements (Audio and Video Recorders), 475.
3431 </p></div><div id="ftn.idp39828400" class="footnote"><p><a href="#idp39828400" class="para"><sup class="para">[89] </sup></a>
3432
3433 <em class="citetitle">Universal City Studios, Inc</em>. v. <em class="citetitle">Sony Corp. of America</em>, 480 F. Supp. 429,
3434 (C.D. Cal., 1979).
3435 </p></div><div id="ftn.idp39831328" class="footnote"><p><a href="#idp39831328" class="para"><sup class="para">[90] </sup></a>
3436
3437 Copyright Infringements (Audio and Video Recorders), 485 (testimony
3438 of Jack Valenti).
3439 </p></div><div id="ftn.idp39835408" class="footnote"><p><a href="#idp39835408" class="para"><sup class="para">[91] </sup></a>
3440
3441 <em class="citetitle">Universal City Studios, Inc</em>. v. <em class="citetitle">Sony Corp. of America</em>, 659 F. 2d 963 (9th Cir.
3442 1981).
3443 </p></div><div id="ftn.idp39841536" class="footnote"><p><a href="#idp39841536" class="para"><sup class="para">[92] </sup></a>
3444
3445 <em class="citetitle">Sony Corp. of America</em> v. <em class="citetitle">Universal City Studios, Inc</em>., 464 U.S. 417, 431 (1984).
3446 </p></div><div id="ftn.idp39858848" class="footnote"><p><a href="#idp39858848" class="para"><sup class="para">[93] </sup></a>
3447 <a class="indexterm" name="idp39859232"></a>
3448
3449 These are the most important instances in our history, but there are other
3450 cases as well. The technology of digital audio tape (DAT), for example,
3451 was regulated by Congress to minimize the risk of piracy. The remedy
3452 Congress imposed did burden DAT producers, by taxing tape sales and
3453 controlling the technology of DAT. See Audio Home Recording Act of
3454 1992 (Title 17 of the <em class="citetitle">United States Code</em>), Pub. L. No. 102-563, 106 Stat.
3455 4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not
3456 eliminate the opportunity for free riding in the sense I've described. See
3457 Lessig, <em class="citetitle">Future</em>, 71. See also Picker, <span class="quote">«<span class="quote">From Edison to the Broadcast Flag,</span>»</span>
3458 <em class="citetitle">University of Chicago Law Review</em> 70 (2003): 293&#8211;96.
3459 <a class="indexterm" name="idp39781984"></a>
3460 <a class="indexterm" name="idp39863312"></a>
3461 </p></div><div id="ftn.idp39871072" class="footnote"><p><a href="#idp39871072" class="para"><sup class="para">[94] </sup></a>
3462
3463 <em class="citetitle">Sony Corp. of America</em> v. <em class="citetitle">Universal City Studios, Inc</em>., 464 U.S. 417,
3464 (1984).
3465 </p></div><div id="ftn.idp39876912" class="footnote"><p><a href="#idp39876912" class="para"><sup class="para">[95] </sup></a>
3466
3467 John Schwartz, <span class="quote">«<span class="quote">New Economy: The Attack on Peer-to-Peer Software
3468 Echoes Past Efforts,</span>»</span> <em class="citetitle">New York Times</em>, 22 September 2003, C3.
3469 </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>
3470
3471
3472 <span class="strong"><strong>The copyright warriors</strong></span> are right: A
3473 copyright is a kind of property. It can be owned and sold, and the law
3474 protects against its theft. Ordinarily, the copyright owner gets to
3475 hold out for any price he wants. Markets reckon the supply and demand
3476 that partially determine the price she can get.
3477 </p><p>
3478 But in ordinary language, to call a copyright a <span class="quote">«<span class="quote">property</span>»</span> right is a
3479 bit misleading, for the property of copyright is an odd kind of
3480 property.  Indeed, the very idea of property in any idea or any
3481 expression is very odd. I understand what I am taking when I take the
3482 picnic table you put in your backyard. I am taking a thing, the picnic
3483 table, and after I take it, you don't have it. But what am I taking
3484 when I take the good <span class="emphasis"><em>idea</em></span> you had to put a picnic
3485 table in the backyard&#8212;by, for example, going to Sears, buying a
3486 table, and putting it in my backyard? What is the thing I am taking
3487 then?
3488 </p><a class="indexterm" name="idp39889024"></a><p>
3489 The point is not just about the thingness of picnic tables versus
3490 ideas, though that's an important difference. The point instead is that
3491
3492 in the ordinary case&#8212;indeed, in practically every case except for a
3493         narrow
3494 range of exceptions&#8212;ideas released to the world are free. I don't
3495 take anything from you when I copy the way you dress&#8212;though I
3496 might seem weird if I did it every day, and especially weird if you are a
3497 woman. Instead, as Thomas Jefferson said (and as is especially true
3498 when I copy the way someone else dresses), <span class="quote">«<span class="quote">He who receives an idea
3499 from me, receives instruction himself without lessening mine; as he who
3500 lights his taper at mine, receives light without darkening me.</span>»</span><a href="#ftn.idp39891296" class="footnote" name="idp39891296"><sup class="footnote">[96]</sup></a>
3501 </p><a class="indexterm" name="idp39892752"></a><p>
3502 The exceptions to free use are ideas and expressions within the
3503 reach of the law of patent and copyright, and a few other domains that
3504 I won't discuss here. Here the law says you can't take my idea or
3505                 expression
3506 without my permission: The law turns the intangible into
3507 property.
3508 </p><p>
3509 But how, and to what extent, and in what form&#8212;the details,
3510 in other words&#8212;matter. To get a good sense of how this practice
3511 of turning the intangible into property emerged, we need to place this
3512 <span class="quote">«<span class="quote">property</span>»</span> in its proper context.<a href="#ftn.idp39895296" class="footnote" name="idp39895296"><sup class="footnote">[97]</sup></a>
3513 </p><p>
3514 My strategy in doing this will be the same as my strategy in the
3515 preceding part. I offer four stories to help put the idea of
3516 <span class="quote">«<span class="quote">copyright material is property</span>»</span> in context. Where did the idea come
3517 from? What are its limits? How does it function in practice? After
3518 these stories, the significance of this true
3519 statement&#8212;<span class="quote">«<span class="quote">copyright material is property</span>»</span>&#8212; will be a bit
3520 more clear, and its implications will be revealed as quite different
3521 from the implications that the copyright warriors would have us draw.
3522 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp39891296" class="footnote"><p><a href="#idp39891296" class="para"><sup class="para">[96] </sup></a>
3523
3524 Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in
3525 <em class="citetitle">The Writings of Thomas Jefferson</em>, vol. 6 (Andrew A. Lipscomb and Albert
3526 Ellery Bergh, eds., 1903), 330, 333&#8211;34.
3527 </p></div><div id="ftn.idp39895296" class="footnote"><p><a href="#idp39895296" class="para"><sup class="para">[97] </sup></a>
3528
3529 As the legal realists taught American law, all property rights are
3530 intangible.  A property right is simply a right that an individual has
3531 against the world to do or not do certain things that may or may not
3532 attach to a physical object. The right itself is intangible, even if
3533 the object to which it is (metaphorically) attached is tangible. See
3534 Adam Mossoff, <span class="quote">«<span class="quote">What Is Property?  Putting the Pieces Back Together,</span>»</span>
3535 <em class="citetitle">Arizona Law Review</em> 45 (2003): 373, 429 n. 241.
3536 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="founders"></a>Chapter 6. Chapter Six: Founders</h2></div></div></div><a class="indexterm" name="idxbooksenglishcopyrightlawdevelopedfor"></a><a class="indexterm" name="idxcopyrightlawdevelopmentof"></a><a class="indexterm" name="idxcopyrightlawenglish"></a><a class="indexterm" name="idxenglandcopyrightlawsdevelopedin"></a><a class="indexterm" name="idxunitedkingdomhistoryofcopyrightlawin"></a><a class="indexterm" name="idp39907680"></a><a class="indexterm" name="idp39908432"></a><a class="indexterm" name="idp39909184"></a><a class="indexterm" name="idxromeoandjulietshakespeare"></a><p>
3537 <span class="strong"><strong>William Shakespeare</strong></span> wrote
3538 <em class="citetitle">Romeo and Juliet</em> in 1595. The play was first
3539 published in 1597. It was the eleventh major play that Shakespeare had
3540 written. He would continue to write plays through 1613, and the plays
3541 that he wrote have continued to define Anglo-American culture ever
3542 since. So deeply have the works of a sixteenth-century writer seeped
3543 into our culture that we often don't even recognize their source.  I
3544 once overheard someone commenting on Kenneth Branagh's adaptation of
3545 Henry V: <span class="quote">«<span class="quote">I liked it, but Shakespeare is so full of
3546 clichés.</span>»</span>
3547 </p><a class="indexterm" name="idp39913520"></a><a class="indexterm" name="idxtonsonjacob"></a><p>
3548 In 1774, almost 180 years after <em class="citetitle">Romeo and Juliet</em> was written, the
3549 <span class="quote">«<span class="quote">copy-right</span>»</span> for the work was still thought by many to be the exclusive
3550 right of a single London publisher, Jacob Tonson.<a href="#ftn.idp39916656" class="footnote" name="idp39916656"><sup class="footnote">[98]</sup></a>
3551 Tonson was the most prominent of a small group of publishers called
3552 the Conger<a href="#ftn.idp39920960" class="footnote" name="idp39920960"><sup class="footnote">[99]</sup></a>
3553 who controlled bookselling in England during the eighteenth
3554 century. The Conger claimed a perpetual right to control the <span class="quote">«<span class="quote">copy</span>»</span> of
3555 books that they had acquired from authors. That perpetual right meant
3556 that no
3557
3558 one else could publish copies of a book to which they held the
3559 copyright.  Prices of the classics were thus kept high; competition to
3560 produce better or cheaper editions was eliminated.
3561 </p><a class="indexterm" name="idp39923408"></a><a class="indexterm" name="idxcopyrightdurationof2"></a><a class="indexterm" name="idp39925648"></a><a class="indexterm" name="idp39926656"></a><p>
3562 Now, there's something puzzling about the year 1774 to anyone who
3563 knows a little about copyright law. The better-known year in the
3564 history of copyright is 1710, the year that the British Parliament
3565 adopted the first <span class="quote">«<span class="quote">copyright</span>»</span> act. Known as the Statute of Anne, the
3566 act stated that all published works would get a copyright term of
3567 fourteen years, renewable once if the author was alive, and that all
3568 works already published by 1710 would get a single term of twenty-one
3569 additional years.<a href="#ftn.idp39928560" class="footnote" name="idp39928560"><sup class="footnote">[100]</sup></a> Under this law, <em class="citetitle">Romeo and Juliet</em> should have been
3570 free in 1731. So why was there any issue about it still being under
3571 Tonson's control in 1774?
3572 </p><a class="indexterm" name="idp39931568"></a><a class="indexterm" name="idp39932544"></a><a class="indexterm" name="idxlawcommonvspositive"></a><a class="indexterm" name="idp39935008"></a><a class="indexterm" name="idp39935760"></a><p>
3573 The reason is that the English hadn't yet agreed on what a <span class="quote">«<span class="quote">copyright</span>»</span>
3574 was&#8212;indeed, no one had. At the time the English passed the
3575 Statute of Anne, there was no other legislation governing copyrights.
3576 The last law regulating publishers, the Licensing Act of 1662, had
3577 expired in 1695. That law gave publishers a monopoly over publishing,
3578 as a way to make it easier for the Crown to control what was
3579 published.  But after it expired, there was no positive law that said
3580 that the publishers, or <span class="quote">«<span class="quote">Stationers,</span>»</span> had an exclusive right to print
3581 books.
3582 </p><a class="indexterm" name="idp39938192"></a><a class="indexterm" name="idp39939168"></a><p>
3583 There was no <span class="emphasis"><em>positive</em></span> law, but that didn't mean
3584 that there was no law. The Anglo-American legal tradition looks to
3585 both the words of legislatures and the words of judges to know the
3586 rules that are to govern how people are to behave. We call the words
3587 from legislatures <span class="quote">«<span class="quote">positive law.</span>»</span> We call the words from judges
3588 <span class="quote">«<span class="quote">common law.</span>»</span> The common law sets the background against which
3589 legislatures legislate; the legislature, ordinarily, can trump that
3590 background only if it passes a law to displace it. And so the real
3591 question after the licensing statutes had expired was whether the
3592 common law protected a copyright, independent of any positive law.
3593 </p><a class="indexterm" name="idp39942064"></a><a class="indexterm" name="idp39943040"></a><a class="indexterm" name="idxbritishparliament"></a><a class="indexterm" name="idp39945024"></a><a class="indexterm" name="idxstatuteofanne"></a><p>
3594 This question was important to the publishers, or <span class="quote">«<span class="quote">booksellers,</span>»</span> as
3595 they were called, because there was growing competition from foreign
3596 publishers. The Scottish, in particular, were increasingly publishing
3597 and exporting books to England. That competition reduced the profits
3598
3599
3600 of the Conger, which reacted by demanding that Parliament pass a law
3601 to again give them exclusive control over publishing. That demand
3602                 ultimately
3603 resulted in the Statute of Anne.
3604 </p><a class="indexterm" name="idxcopyrightasnarrowmonopolyright"></a><p>
3605 The Statute of Anne granted the author or <span class="quote">«<span class="quote">proprietor</span>»</span> of a book an
3606 exclusive right to print that book. In an important limitation,
3607 however, and to the horror of the booksellers, the law gave the
3608 bookseller that right for a limited term. At the end of that term, the
3609 copyright <span class="quote">«<span class="quote">expired,</span>»</span> and the work would then be free and could be
3610 published by anyone. Or so the legislature is thought to have
3611 believed.
3612 </p><a class="indexterm" name="idp39951456"></a><p>
3613 Now, the thing to puzzle about for a moment is this: Why would
3614 Parliament limit the exclusive right? Not why would they limit it to
3615 the particular limit they set, but why would they limit the right
3616 <span class="emphasis"><em>at all?</em></span>
3617 </p><a class="indexterm" name="idp39953408"></a><a class="indexterm" name="idp39954384"></a><a class="indexterm" name="idp39955136"></a><p>
3618 For the booksellers, and the authors whom they represented, had a very
3619 strong claim. Take <em class="citetitle">Romeo and Juliet</em> as an example: That play
3620 was written by Shakespeare. It was his genius that brought it into the
3621 world. He didn't take anybody's property when he created this play
3622 (that's a controversial claim, but never mind), and by his creating
3623 this play, he didn't make it any harder for others to craft a play. So
3624 why is it that the law would ever allow someone else to come along and
3625 take Shakespeare's play without his, or his estate's, permission? What
3626 reason is there to allow someone else to <span class="quote">«<span class="quote">steal</span>»</span> Shakespeare's work?
3627 </p><a class="indexterm" name="idp39957648"></a><p>
3628 The answer comes in two parts. We first need to see something special
3629 about the notion of <span class="quote">«<span class="quote">copyright</span>»</span> that existed at the time of the
3630 Statute of Anne. Second, we have to see something important about
3631 <span class="quote">«<span class="quote">booksellers.</span>»</span>
3632 </p><a class="indexterm" name="idp39959776"></a><p>
3633 First, about copyright. In the last three hundred years, we have come
3634 to apply the concept of <span class="quote">«<span class="quote">copyright</span>»</span> ever more broadly. But in 1710, it
3635 wasn't so much a concept as it was a very particular right. The
3636 copyright was born as a very specific set of restrictions: It forbade
3637 others from reprinting a book. In 1710, the <span class="quote">«<span class="quote">copy-right</span>»</span> was a right
3638 to use a particular machine to replicate a particular work. It did not
3639 go beyond that very narrow right. It did not control any more
3640 generally how
3641
3642 a work could be <span class="emphasis"><em>used</em></span>. Today the right includes a
3643 large collection of restrictions on the freedom of others: It grants
3644 the author the exclusive right to copy, the exclusive right to
3645 distribute, the exclusive right to perform, and so on.
3646 </p><a class="indexterm" name="idp39963328"></a><a class="indexterm" name="idp39964080"></a><p>
3647 So, for example, even if the copyright to Shakespeare's works were
3648 perpetual, all that would have meant under the original meaning of the
3649 term was that no one could reprint Shakespeare's work without the
3650 permission of the Shakespeare estate. It would not have controlled
3651 anything, for example, about how the work could be performed, whether
3652 the work could be translated, or whether Kenneth Branagh would be
3653 allowed to make his films. The <span class="quote">«<span class="quote">copy-right</span>»</span> was only an exclusive
3654 right to print&#8212;no less, of course, but also no more.
3655 </p><a class="indexterm" name="idp39966144"></a><a class="indexterm" name="idxmonopolycopyrightas"></a><a class="indexterm" name="idp39968128"></a><p>
3656 Even that limited right was viewed with skepticism by the British.
3657 They had had a long and ugly experience with <span class="quote">«<span class="quote">exclusive rights,</span>»</span>
3658 especially <span class="quote">«<span class="quote">exclusive rights</span>»</span> granted by the Crown. The English had
3659 fought a civil war in part about the Crown's practice of handing out
3660 monopolies&#8212;especially monopolies for works that already
3661 existed. King Henry VIII granted a patent to print the Bible and a
3662 monopoly to Darcy to print playing cards. The English Parliament began
3663 to fight back against this power of the Crown. In 1656, it passed the
3664 Statute of Monopolies, limiting monopolies to patents for new
3665 inventions. And by 1710, Parliament was eager to deal with the growing
3666 monopoly in publishing.
3667 </p><p>
3668 Thus the <span class="quote">«<span class="quote">copy-right,</span>»</span> when viewed as a monopoly right, was naturally
3669 viewed as a right that should be limited. (However convincing the
3670 claim that <span class="quote">«<span class="quote">it's my property, and I should have it forever,</span>»</span> try
3671 sounding convincing when uttering, <span class="quote">«<span class="quote">It's my monopoly, and I should
3672 have it forever.</span>»</span>) The state would protect the exclusive right, but
3673 only so long as it benefited society. The British saw the harms from
3674 specialinterest favors; they passed a law to stop them.
3675 </p><a class="indexterm" name="idp39972576"></a><a class="indexterm" name="idxbooksellersenglish"></a><a class="indexterm" name="idp39974560"></a><a class="indexterm" name="idxcopyrightdurationof3"></a><p>
3676 Second, about booksellers. It wasn't just that the copyright was a
3677 monopoly. It was also that it was a monopoly held by the booksellers.
3678 Booksellers sound quaint and harmless to us. They were not viewed
3679 as harmless in seventeenth-century England. Members of the Conger
3680
3681
3682 were increasingly seen as monopolists of the worst
3683 kind&#8212;tools of the Crown's repression, selling the liberty of
3684 England to guarantee themselves a monopoly profit. The attacks against
3685 these monopolists were harsh: Milton described them as <span class="quote">«<span class="quote">old patentees
3686 and monopolizers in the trade of book-selling</span>»</span>; they were <span class="quote">«<span class="quote">men who do
3687 not therefore labour in an honest profession to which learning is
3688 indetted.</span>»</span><a href="#ftn.idp39978672" class="footnote" name="idp39978672"><sup class="footnote">[101]</sup></a>
3689 </p><a class="indexterm" name="idp39979952"></a><a class="indexterm" name="idp39980704"></a><p>
3690 Many believed the power the booksellers exercised over the spread of
3691 knowledge was harming that spread, just at the time the Enlightenment
3692 was teaching the importance of education and knowledge spread
3693 generally. The idea that knowledge should be free was a hallmark of
3694 the time, and these powerful commercial interests were interfering
3695 with that idea.
3696 </p><a class="indexterm" name="idxbritishparliament2"></a><p>
3697 To balance this power, Parliament decided to increase competition
3698 among booksellers, and the simplest way to do that was to spread the
3699 wealth of valuable books. Parliament therefore limited the term of
3700 copyrights, and thereby guaranteed that valuable books would become
3701 open to any publisher to publish after a limited time. Thus the setting
3702 of the term for existing works to just twenty-one years was a
3703                 compromise
3704 to fight the power of the booksellers. The limitation on terms was
3705 an indirect way to assure competition among publishers, and thus the
3706 construction and spread of culture.
3707 </p><a class="indexterm" name="idxstatuteofanne2"></a><a class="indexterm" name="idxcopyrightinperpetuity"></a><p>
3708 When 1731 (1710 + 21) came along, however, the booksellers were
3709 getting anxious. They saw the consequences of more competition, and
3710 like every competitor, they didn't like them. At first booksellers simply
3711 ignored the Statute of Anne, continuing to insist on the perpetual right
3712 to control publication. But in 1735 and 1737, they tried to persuade
3713 Parliament to extend their terms. Twenty-one years was not enough,
3714 they said; they needed more time.
3715 </p><p>
3716 Parliament rejected their requests. As one pamphleteer put it, in
3717 words that echo today,
3718 </p><div class="blockquote"><blockquote class="blockquote"><p>
3719 I see no Reason for granting a further Term now, which will not
3720 hold as well for granting it again and again, as often as the Old
3721
3722 ones Expire; so that should this Bill pass, it will in Effect be
3723 establishing a perpetual Monopoly, a Thing deservedly odious in the
3724 Eye of the Law; it will be a great Cramp to Trade, a Discouragement to
3725 Learning, no Benefit to the Authors, but a general Tax on the Publick;
3726 and all this only to increase the private Gain of the
3727 Booksellers.<a href="#ftn.idp39989760" class="footnote" name="idp39989760"><sup class="footnote">[102]</sup></a>
3728 </p></blockquote></div><a class="indexterm" name="idp39992400"></a><a class="indexterm" name="idp39993376"></a><a class="indexterm" name="idp39994352"></a><a class="indexterm" name="idp39995104"></a><a class="indexterm" name="idp39996112"></a><p>
3729 Having failed in Parliament, the publishers turned to the courts in a
3730 series of cases. Their argument was simple and direct: The Statute of
3731 Anne gave authors certain protections through positive law, but those
3732 protections were not intended as replacements for the common law.
3733 Instead, they were intended simply to supplement the common law.
3734 Under common law, it was already wrong to take another person's
3735 creative <span class="quote">«<span class="quote">property</span>»</span> and use it without his permission. The Statute of
3736 Anne, the booksellers argued, didn't change that. Therefore, just
3737 because the protections of the Statute of Anne expired, that didn't
3738 mean the protections of the common law expired: Under the common law
3739 they had the right to ban the publication of a book, even if its
3740 Statute of Anne copyright had expired. This, they argued, was the only
3741 way to protect authors.
3742 </p><a class="indexterm" name="idp39998496"></a><p>
3743 This was a clever argument, and one that had the support of some of
3744 the leading jurists of the day. It also displayed extraordinary
3745 chutzpah.  Until then, as law professor Raymond Patterson has put it,
3746 <span class="quote">«<span class="quote">The publishers &#8230; had as much concern for authors as a cattle
3747 rancher has for cattle.</span>»</span><a href="#ftn.idp39722992" class="footnote" name="idp39722992"><sup class="footnote">[103]</sup></a>
3748 The bookseller didn't care squat for the rights of the author.  His
3749 concern was the monopoly profit that the author's work gave.
3750 </p><a class="indexterm" name="idxdonaldsonalexander"></a><a class="indexterm" name="idp40004944"></a><a class="indexterm" name="idxscottishpublishers"></a><p>
3751 The booksellers' argument was not accepted without a fight.
3752 The hero of this fight was a Scottish bookseller named Alexander
3753 Donaldson.<a href="#ftn.idp40007344" class="footnote" name="idp40007344"><sup class="footnote">[104]</sup></a>
3754 </p><a class="indexterm" name="idxstatuteofanne3"></a><a class="indexterm" name="idxconger"></a><a class="indexterm" name="idp40011088"></a><a class="indexterm" name="idp40011840"></a><p>
3755 Donaldson was an outsider to the London Conger. He began his
3756 career in Edinburgh in 1750. The focus of his business was inexpensive
3757 reprints <span class="quote">«<span class="quote">of standard works whose copyright term had expired,</span>»</span> at least
3758 under the Statute of Anne.<a href="#ftn.idp40013392" class="footnote" name="idp40013392"><sup class="footnote">[105]</sup></a>
3759 Donaldson's publishing house prospered
3760
3761 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
3762 them,</span>»</span> Professor Mark Rose writes, was <span class="quote">«<span class="quote">the young James Boswell
3763 who, together with his friend Andrew Erskine, published an anthology
3764 of contemporary Scottish poems with Donaldson.</span>»</span><a href="#ftn.idp40016736" class="footnote" name="idp40016736"><sup class="footnote">[106]</sup></a>
3765 </p><a class="indexterm" name="idxcommonlaw"></a><p>
3766 When the London booksellers tried to shut down Donaldson's shop in
3767 Scotland, he responded by moving his shop to London, where he sold
3768 inexpensive editions <span class="quote">«<span class="quote">of the most popular English books, in defiance
3769 of the supposed common law right of Literary
3770 Property.</span>»</span><a href="#ftn.idp40019664" class="footnote" name="idp40019664"><sup class="footnote">[107]</sup></a>
3771 His books undercut the Conger prices by 30 to 50 percent, and he
3772 rested his right to compete upon the ground that, under the Statute of
3773 Anne, the works he was selling had passed out of protection.
3774 </p><a class="indexterm" name="idp40021904"></a><a class="indexterm" name="idxmillarvtaylor"></a><p>
3775 The London booksellers quickly brought suit to block <span class="quote">«<span class="quote">piracy</span>»</span> like
3776 Donaldson's. A number of actions were successful against the <span class="quote">«<span class="quote">pirates,</span>»</span>
3777 the most important early victory being <em class="citetitle">Millar</em> v. <em class="citetitle">Taylor</em>.
3778 </p><a class="indexterm" name="idp40026112"></a><a class="indexterm" name="idp40027088"></a><a class="indexterm" name="idxthomsonjames"></a><a class="indexterm" name="idxcopyrightinperpetuity2"></a><a class="indexterm" name="idp40030784"></a><a class="indexterm" name="idp40031536"></a><p>
3779 Millar was a bookseller who in 1729 had purchased the rights to James
3780 Thomson's poem <span class="quote">«<span class="quote">The Seasons.</span>»</span> Millar complied with the requirements of
3781 the Statute of Anne, and therefore received the full protection of the
3782 statute. After the term of copyright ended, Robert Taylor began
3783 printing a competing volume. Millar sued, claiming a perpetual common
3784 law right, the Statute of Anne notwithstanding.<a href="#ftn.idp40033328" class="footnote" name="idp40033328"><sup class="footnote">[108]</sup></a>
3785 </p><a class="indexterm" name="idxmansfieldwilliammurraylord2"></a><p>
3786 Astonishingly to modern lawyers, one of the greatest judges in English
3787 history, Lord Mansfield, agreed with the booksellers. Whatever
3788 protection the Statute of Anne gave booksellers, it did not, he held,
3789 extinguish any common law right. The question was whether the common
3790 law would protect the author against subsequent <span class="quote">«<span class="quote">pirates.</span>»</span>
3791 Mansfield's answer was yes: The common law would bar Taylor from
3792 reprinting Thomson's poem without Millar's permission. That common law
3793 rule thus effectively gave the booksellers a perpetual right to
3794 control the publication of any book assigned to them.
3795 </p><a class="indexterm" name="idp40037712"></a><a class="indexterm" name="idp40038688"></a><a class="indexterm" name="idp40039664"></a><a class="indexterm" name="idxbritishparliament3"></a><p>
3796 Considered as a matter of abstract justice&#8212;reasoning as if
3797 justice were just a matter of logical deduction from first
3798 principles&#8212;Mansfield's conclusion might make some sense. But
3799 what it ignored was the larger issue that Parliament had struggled
3800 with in 1710: How best to limit
3801
3802 the monopoly power of publishers? Parliament's strategy was to offer a
3803 term for existing works that was long enough to buy peace in 1710, but
3804 short enough to assure that culture would pass into competition within
3805 a reasonable period of time. Within twenty-one years, Parliament
3806 believed, Britain would mature from the controlled culture that the
3807 Crown coveted to the free culture that we inherited.
3808 </p><a class="indexterm" name="idp40043232"></a><a class="indexterm" name="idxdonaldsonalexander2"></a><a class="indexterm" name="idxscottishpublishers2"></a><p>
3809 The fight to defend the limits of the Statute of Anne was not to end
3810 there, however, and it is here that Donaldson enters the mix.
3811 </p><a class="indexterm" name="idp40047200"></a><a class="indexterm" name="idp40047952"></a><a class="indexterm" name="idxhouseoflords"></a><a class="indexterm" name="idxsupremecourtushouseoflordsvs"></a><p>
3812 Millar died soon after his victory, so his case was not appealed. His
3813 estate sold Thomson's poems to a syndicate of printers that included
3814 Thomas Beckett.<a href="#ftn.idp40051856" class="footnote" name="idp40051856"><sup class="footnote">[109]</sup></a>
3815 Donaldson then released an unauthorized edition
3816 of Thomson's works. Beckett, on the strength of the decision in <em class="citetitle">Millar</em>,
3817 got an injunction against Donaldson. Donaldson appealed the case to
3818 the House of Lords, which functioned much like our own Supreme
3819 Court. In February of 1774, that body had the chance to interpret the
3820 meaning of Parliament's limits from sixty years before.
3821 </p><a class="indexterm" name="idp40053536"></a><a class="indexterm" name="idp40054512"></a><a class="indexterm" name="idxdonaldsonvbeckett"></a><a class="indexterm" name="idxcommonlaw2"></a><p>
3822 As few legal cases ever do, <em class="citetitle">Donaldson</em> v. <em class="citetitle">Beckett</em> drew an
3823 enormous amount of attention throughout Britain. Donaldson's lawyers
3824 argued that whatever rights may have existed under the common law, the
3825 Statute of Anne terminated those rights. After passage of the Statute
3826 of Anne, the only legal protection for an exclusive right to control
3827 publication came from that statute. Thus, they argued, after the term
3828 specified in the Statute of Anne expired, works that had been
3829 protected by the statute were no longer protected.
3830 </p><a class="indexterm" name="idp40059584"></a><p>
3831 The House of Lords was an odd institution. Legal questions were
3832 presented to the House and voted upon first by the <span class="quote">«<span class="quote">law lords,</span>»</span>
3833 members of special legal distinction who functioned much like the
3834 Justices in our Supreme Court. Then, after the law lords voted, the
3835 House of Lords generally voted.
3836 </p><a class="indexterm" name="idp40061632"></a><a class="indexterm" name="idxcopyrightinperpetuity3"></a><a class="indexterm" name="idxpublicdomainenglishlegalestablishmentof"></a><p>
3837 The reports about the law lords' votes are mixed. On some counts,
3838 it looks as if perpetual copyright prevailed. But there is no ambiguity
3839
3840 about how the House of Lords voted as whole. By a two-to-one majority
3841 (22 to 11) they voted to reject the idea of perpetual copyrights.
3842 Whatever one's understanding of the common law, now a copyright was
3843 fixed for a limited time, after which the work protected by copyright
3844 passed into the public domain.
3845 </p><a class="indexterm" name="idp40066704"></a><a class="indexterm" name="idp40067456"></a><a class="indexterm" name="idp40068208"></a><a class="indexterm" name="idp40068960"></a><a class="indexterm" name="idp40069712"></a><p>
3846 <span class="quote">«<span class="quote">The public domain.</span>»</span> Before the case of <em class="citetitle">Donaldson</em>
3847 v. <em class="citetitle">Beckett</em>, there was no clear idea of a public domain in
3848 England. Before 1774, there was a strong argument that common law
3849 copyrights were perpetual.  After 1774, the public domain was
3850 born. For the first time in Anglo-American history, the legal control
3851 over creative works expired, and the greatest works in English
3852 history&#8212;including those of Shakespeare, Bacon, Milton, Johnson,
3853 and Bunyan&#8212;were free of legal restraint.
3854 </p><a class="indexterm" name="idp40071872"></a><a class="indexterm" name="idp40073504"></a><a class="indexterm" name="idp40074480"></a><a class="indexterm" name="idp40075456"></a><a class="indexterm" name="idp40076432"></a><a class="indexterm" name="idp40077408"></a><p>
3855 It is hard for us to imagine, but this decision by the House of Lords
3856 fueled an extraordinarily popular and political reaction. In Scotland,
3857 where most of the <span class="quote">«<span class="quote">pirate publishers</span>»</span> did their work, people
3858 celebrated the decision in the streets. As the <em class="citetitle">Edinburgh Advertiser</em>
3859 reported, <span class="quote">«<span class="quote">No private cause has so much engrossed the attention of the
3860 public, and none has been tried before the House of Lords in the
3861 decision of which so many individuals were interested.</span>»</span> <span class="quote">«<span class="quote">Great
3862 rejoicing in Edinburgh upon victory over literary property: bonfires
3863 and illuminations.</span>»</span><a href="#ftn.idp40080304" class="footnote" name="idp40080304"><sup class="footnote">[110]</sup></a>
3864 </p><a class="indexterm" name="idp40081200"></a><p>
3865 In London, however, at least among publishers, the reaction was
3866 equally strong in the opposite direction. The <em class="citetitle">Morning Chronicle</em>
3867 reported:
3868 </p><div class="blockquote"><blockquote class="blockquote"><p>
3869 By the above decision &#8230; near 200,000 pounds worth of what was
3870 honestly purchased at public sale, and which was yesterday thought
3871 property is now reduced to nothing. The Booksellers of London and
3872 Westminster, many of whom sold estates and houses to purchase
3873 Copy-right, are in a manner ruined, and those who after many years
3874 industry thought they had acquired a competency to provide for their
3875 families now find themselves without a shilling to devise to their
3876 successors.<a href="#ftn.idp40000208" class="footnote" name="idp40000208"><sup class="footnote">[111]</sup></a>
3877 </p></blockquote></div><a class="indexterm" name="idp40085104"></a><a class="indexterm" name="idp40085856"></a><p>
3878
3879 <span class="quote">«<span class="quote">Ruined</span>»</span> is a bit of an exaggeration. But it is not an exaggeration to
3880 say that the change was profound. The decision of the House of Lords
3881 meant that the booksellers could no longer control how culture in
3882 England would grow and develop. Culture in England was thereafter
3883 <span class="emphasis"><em>free</em></span>.  Not in the sense that copyrights would not
3884 be respected, for of course, for a limited time after a work was
3885 published, the bookseller had an exclusive right to control the
3886 publication of that book. And not in the sense that books could be
3887 stolen, for even after a copyright expired, you still had to buy the
3888 book from someone. But <span class="emphasis"><em>free</em></span> in the sense that the
3889 culture and its growth would no longer be controlled by a small group
3890 of publishers. As every free market does, this free market of free
3891 culture would grow as the consumers and producers chose. English
3892 culture would develop as the many English readers chose to let it
3893 develop&#8212; chose in the books they bought and wrote; chose in the
3894 memes they repeated and endorsed. Chose in a <span class="emphasis"><em>competitive
3895 context</em></span>, not a context in which the choices about what
3896 culture is available to people and how they get access to it are made
3897 by the few despite the wishes of the many.
3898 </p><a class="indexterm" name="idp40090336"></a><a class="indexterm" name="idp40091312"></a><p>
3899 At least, this was the rule in a world where the Parliament is
3900 antimonopoly, resistant to the protectionist pleas of publishers. In a
3901 world where the Parliament is more pliant, free culture would be less
3902 protected.
3903 </p><a class="indexterm" name="idp40092688"></a><a class="indexterm" name="idp40093664"></a><a class="indexterm" name="idp40094640"></a><a class="indexterm" name="idp40095616"></a><a class="indexterm" name="idp40096592"></a><a class="indexterm" name="idp40097568"></a><a class="indexterm" name="idp40098544"></a><a class="indexterm" name="idp40099520"></a><a class="indexterm" name="idp40100496"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp39916656" class="footnote"><p><a href="#idp39916656" class="para"><sup class="para">[98] </sup></a>
3904
3905 <a class="indexterm" name="idp39917296"></a>
3906 <a class="indexterm" name="idp39918048"></a>
3907 Jacob Tonson is typically remembered for his associations with prominent
3908 eighteenth-century literary figures, especially John Dryden, and for his
3909 handsome <span class="quote">«<span class="quote">definitive editions</span>»</span> of classic works. In addition to <em class="citetitle">Romeo and
3910 Juliet</em>, he published an astonishing array of works that still remain at the
3911 heart of the English canon, including collected works of Shakespeare, Ben
3912 Jonson, John Milton, and John Dryden. See Keith Walker, <span class="quote">«<span class="quote">Jacob Tonson,
3913 Bookseller,</span>»</span> <em class="citetitle">American Scholar</em> 61:3 (1992): 424&#8211;31.
3914 </p></div><div id="ftn.idp39920960" class="footnote"><p><a href="#idp39920960" class="para"><sup class="para">[99] </sup></a>
3915
3916 Lyman Ray Patterson, <em class="citetitle">Copyright in Historical Perspective</em> (Nashville:
3917 Vanderbilt University Press, 1968), 151&#8211;52.
3918 </p></div><div id="ftn.idp39928560" class="footnote"><p><a href="#idp39928560" class="para"><sup class="para">[100] </sup></a>
3919
3920 <a class="indexterm" name="idp39929200"></a>
3921 As Siva Vaidhyanathan nicely argues, it is erroneous to call this a
3922 <span class="quote">«<span class="quote">copyright law.</span>»</span> See Vaidhyanathan, <em class="citetitle">Copyrights and Copywrongs</em>, 40.
3923 </p></div><div id="ftn.idp39978672" class="footnote"><p><a href="#idp39978672" class="para"><sup class="para">[101] </sup></a>
3924
3925
3926 Philip Wittenberg, <em class="citetitle">The Protection and Marketing of Literary
3927 Property</em> (New York: J. Messner, Inc., 1937), 31.
3928 </p></div><div id="ftn.idp39989760" class="footnote"><p><a href="#idp39989760" class="para"><sup class="para">[102] </sup></a>
3929
3930 A Letter to a Member of Parliament concerning the Bill now depending
3931 in the House of Commons, for making more effectual an Act in the
3932 Eighth Year of the Reign of Queen Anne, entitled, An Act for the
3933 Encouragement of Learning, by Vesting the Copies of Printed Books in
3934 the Authors or Purchasers of such Copies, during the Times therein
3935 mentioned (London, 1735), in Brief Amici Curiae of Tyler T. Ochoa et
3936 al., 8, <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 537 U.S. 186 (2003) (No. 01-618).
3937 </p></div><div id="ftn.idp39722992" class="footnote"><p><a href="#idp39722992" class="para"><sup class="para">[103] </sup></a>
3938
3939 <a class="indexterm" name="idp40000944"></a>
3940 <a class="indexterm" name="idp40001696"></a>
3941 Lyman Ray Patterson, <span class="quote">«<span class="quote">Free Speech, Copyright, and Fair Use,</span>»</span> <em class="citetitle">Vanderbilt
3942 Law Review</em> 40 (1987): 28. For a wonderfully compelling account, see
3943 Vaidhyanathan, 37&#8211;48.
3944 </p></div><div id="ftn.idp40007344" class="footnote"><p><a href="#idp40007344" class="para"><sup class="para">[104] </sup></a>
3945
3946 For a compelling account, see David Saunders, <em class="citetitle">Authorship and Copyright</em>
3947 (London: Routledge, 1992), 62&#8211;69.
3948 </p></div><div id="ftn.idp40013392" class="footnote"><p><a href="#idp40013392" class="para"><sup class="para">[105] </sup></a>
3949
3950 Mark Rose, <em class="citetitle">Authors and Owners</em> (Cambridge: Harvard University Press,
3951 1993), 92.
3952 <a class="indexterm" name="idp40014416"></a>
3953 </p></div><div id="ftn.idp40016736" class="footnote"><p><a href="#idp40016736" class="para"><sup class="para">[106] </sup></a>
3954
3955 Ibid., 93.
3956 </p></div><div id="ftn.idp40019664" class="footnote"><p><a href="#idp40019664" class="para"><sup class="para">[107] </sup></a>
3957
3958 <a class="indexterm" name="idp40020304"></a>
3959 Lyman Ray Patterson, <em class="citetitle">Copyright in Historical Perspective</em>, 167 (quoting
3960 Borwell).
3961 </p></div><div id="ftn.idp40033328" class="footnote"><p><a href="#idp40033328" class="para"><sup class="para">[108] </sup></a>
3962
3963 Howard B. Abrams, <span class="quote">«<span class="quote">The Historic Foundation of American Copyright Law:
3964 Exploding the Myth of Common Law Copyright,</span>»</span> <em class="citetitle">Wayne Law Review</em> 29
3965 (1983): 1152.
3966 </p></div><div id="ftn.idp40051856" class="footnote"><p><a href="#idp40051856" class="para"><sup class="para">[109] </sup></a>
3967
3968 Ibid., 1156.
3969 </p></div><div id="ftn.idp40080304" class="footnote"><p><a href="#idp40080304" class="para"><sup class="para">[110] </sup></a>
3970
3971 Rose, 97.
3972 </p></div><div id="ftn.idp40000208" class="footnote"><p><a href="#idp40000208" class="para"><sup class="para">[111] </sup></a>
3973
3974 Ibid.
3975 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="recorders"></a>Chapter 7. Chapter Seven: Recorders</h2></div></div></div><a class="indexterm" name="idxcopyrightlawfairuseand"></a><a class="indexterm" name="idxdocumentaryfilm"></a><a class="indexterm" name="idxelsejon"></a><a class="indexterm" name="idxfairuseindocumentaryfilm"></a><a class="indexterm" name="idxfilmsfairuseofcopyrightedmaterialin"></a><p>
3976 <span class="strong"><strong>Jon Else</strong></span> is a filmmaker. He is best
3977 known for his documentaries and has been very successful in spreading
3978 his art. He is also a teacher, and as a teacher myself, I envy the
3979 loyalty and admiration that his students feel for him. (I met, by
3980 accident, two of his students at a dinner party.  He was their god.)
3981 </p><p>
3982 Else worked on a documentary that I was involved in. At a break,
3983 he told me a story about the freedom to create with film in America
3984 today.
3985 </p><a class="indexterm" name="idxwagnerrichard"></a><a class="indexterm" name="idp40113008"></a><p>
3986 In 1990, Else was working on a documentary about Wagner's Ring
3987 Cycle. The focus was stagehands at the San Francisco Opera.
3988 Stagehands are a particularly funny and colorful element of an opera.
3989 During a show, they hang out below the stage in the grips' lounge and
3990 in the lighting loft. They make a perfect contrast to the art on the
3991 stage.
3992 </p><a class="indexterm" name="idxsimpsonsthe"></a><p>
3993 During one of the performances, Else was shooting some stagehands
3994 playing checkers. In one corner of the room was a television set.
3995 Playing on the television set, while the stagehands played checkers
3996 and the opera company played Wagner, was <em class="citetitle">The Simpsons</em>. As Else judged
3997
3998 it, this touch of cartoon helped capture the flavor of what was special
3999 about the scene.
4000 </p><a class="indexterm" name="idp40117120"></a><a class="indexterm" name="idp40118368"></a><p>
4001 Years later, when he finally got funding to complete the film, Else
4002 attempted to clear the rights for those few seconds of <em class="citetitle">The Simpsons</em>.
4003 For of course, those few seconds are copyrighted; and of course, to use
4004 copyrighted material you need the permission of the copyright owner,
4005 unless <span class="quote">«<span class="quote">fair use</span>»</span> or some other privilege applies.
4006 </p><a class="indexterm" name="idxgraciefilms"></a><a class="indexterm" name="idxgroeningmatt"></a><p>
4007 Else called <em class="citetitle">Simpsons</em> creator Matt Groening's office to get permission.
4008 Groening approved the shot. The shot was a four-and-a-halfsecond image
4009 on a tiny television set in the corner of the room. How could it hurt?
4010 Groening was happy to have it in the film, but he told Else to contact
4011 Gracie Films, the company that produces the program.
4012 </p><a class="indexterm" name="idxfoxfilmcompany"></a><p>
4013 Gracie Films was okay with it, too, but they, like Groening, wanted
4014 to be careful. So they told Else to contact Fox, Gracie's parent company.
4015 Else called Fox and told them about the clip in the corner of the one
4016 room shot of the film. Matt Groening had already given permission,
4017 Else said. He was just confirming the permission with Fox.
4018 </p><a class="indexterm" name="idp40127488"></a><p>
4019 Then, as Else told me, <span class="quote">«<span class="quote">two things happened. First we discovered
4020 &#8230; that Matt Groening doesn't own his own creation&#8212;or at
4021 least that someone [at Fox] believes he doesn't own his own creation.</span>»</span>
4022 And second, Fox <span class="quote">«<span class="quote">wanted ten thousand dollars as a licensing fee for us
4023 to use this four-point-five seconds of &#8230; entirely unsolicited
4024 <em class="citetitle">Simpsons</em> which was in the corner of the shot.</span>»</span>
4025 </p><a class="indexterm" name="idxherrerarebecca"></a><p>
4026 Else was certain there was a mistake. He worked his way up to someone
4027 he thought was a vice president for licensing, Rebecca Herrera.  He
4028 explained to her, <span class="quote">«<span class="quote">There must be some mistake here. &#8230;  We're
4029 asking for your educational rate on this.</span>»</span> That was the educational
4030 rate, Herrera told Else. A day or so later, Else called again to
4031 confirm what he had been told.
4032 </p><a class="indexterm" name="idp40133584"></a><p>
4033 <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
4034 have your facts straight,</span>»</span> she said. It would cost $10,000 to use the
4035 clip of <em class="citetitle">The Simpsons</em> in the corner of a shot in a documentary film
4036 about
4037
4038
4039 Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, <span class="quote">«<span class="quote">And
4040 if you quote me, I'll turn you over to our attorneys.</span>»</span> As an assistant
4041 to Herrera told Else later on, <span class="quote">«<span class="quote">They don't give a shit. They just want
4042 the money.</span>»</span>
4043 </p><a class="indexterm" name="idp40137536"></a><a class="indexterm" name="idp40138816"></a><a class="indexterm" name="idp40139632"></a><p>
4044 Else didn't have the money to buy the right to replay what was playing
4045 on the television backstage at the San Francisco Opera. To reproduce
4046 this reality was beyond the documentary filmmaker's budget. At the
4047 very last minute before the film was to be released, Else digitally
4048 replaced the shot with a clip from another film that he had worked on,
4049 <em class="citetitle">The Day After Trinity</em>, from ten years before.
4050 </p><p>
4051 There's no doubt that someone, whether Matt Groening or Fox, owns the
4052 copyright to <em class="citetitle">The Simpsons</em>. That copyright is their property.  To use
4053 that copyrighted material thus sometimes requires the permission of
4054 the copyright owner. If the use that Else wanted to make of the
4055 <em class="citetitle">Simpsons</em> copyright were one of the uses restricted by the law, then he
4056 would need to get the permission of the copyright owner before he
4057 could use the work in that way. And in a free market, it is the owner
4058 of the copyright who gets to set the price for any use that the law
4059 says the owner gets to control.
4060 </p><p>
4061 For example, <span class="quote">«<span class="quote">public performance</span>»</span> is a use of <em class="citetitle">The Simpsons</em> that the
4062 copyright owner gets to control. If you take a selection of favorite
4063 episodes, rent a movie theater, and charge for tickets to come see <span class="quote">«<span class="quote">My
4064 Favorite <em class="citetitle">Simpsons</em>,</span>»</span> then you need to get permission from the copyright
4065 owner. And the copyright owner (rightly, in my view) can charge
4066 whatever she wants&#8212;$10 or $1,000,000. That's her right, as set
4067 by the law.
4068 </p><p>
4069 But when lawyers hear this story about Jon Else and Fox, their first
4070 thought is <span class="quote">«<span class="quote">fair use.</span>»</span><a href="#ftn.idp40146624" class="footnote" name="idp40146624"><sup class="footnote">[112]</sup></a>
4071 Else's use of just 4.5 seconds of an indirect shot of a <em class="citetitle">Simpsons</em>
4072 episode is clearly a fair use of <em class="citetitle">The Simpsons</em>&#8212;and fair use does
4073 not require the permission of anyone.
4074 </p><a class="indexterm" name="idp40150512"></a><a class="indexterm" name="idp40151792"></a><p>
4075
4076 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:
4077 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idxfairuselegalintimidationtacticsagainst"></a><p>
4078 The <em class="citetitle">Simpsons</em> fiasco was for me a great lesson in the gulf between what
4079 lawyers find irrelevant in some abstract sense, and what is crushingly
4080 relevant in practice to those of us actually trying to make and
4081 broadcast documentaries. I never had any doubt that it was <span class="quote">«<span class="quote">clearly
4082 fair use</span>»</span> in an absolute legal sense. But I couldn't rely on the
4083 concept in any concrete way. Here's why:
4084 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><a class="indexterm" name="idp40159424"></a><p>
4085
4086 Before our films can be broadcast, the network requires that we buy
4087 Errors and Omissions insurance. The carriers require a detailed
4088 <span class="quote">«<span class="quote">visual cue sheet</span>»</span> listing the source and licensing status of each
4089 shot in the film. They take a dim view of <span class="quote">«<span class="quote">fair use,</span>»</span> and a claim of
4090 <span class="quote">«<span class="quote">fair use</span>»</span> can grind the application process to a halt.
4091 </p></li><li class="listitem"><a class="indexterm" name="idxfoxfilmcompany3"></a><a class="indexterm" name="idp40164208"></a><a class="indexterm" name="idp40165024"></a><a class="indexterm" name="idp40165840"></a><p>
4092
4093 I probably never should have asked Matt Groening in the first
4094 place. But I knew (at least from folklore) that Fox had a history of
4095 tracking down and stopping unlicensed <em class="citetitle">Simpsons</em> usage, just as George
4096 Lucas had a very high profile litigating <em class="citetitle">Star Wars</em> usage. So I decided
4097 to play by the book, thinking that we would be granted free or cheap
4098 license to four seconds of <em class="citetitle">Simpsons</em>. As a documentary producer working
4099 to exhaustion on a shoestring, the last thing I wanted was to risk
4100 legal trouble, even nuisance legal trouble, and even to defend a
4101 principle.
4102 </p></li><li class="listitem"><p>
4103
4104 I did, in fact, speak with one of your colleagues at Stanford Law
4105 School &#8230; who confirmed that it was fair use. He also confirmed
4106 that Fox would <span class="quote">«<span class="quote">depose and litigate you to within an inch of your
4107 life,</span>»</span> regardless of the merits of my claim. He made clear that it
4108 would boil down to who had the bigger legal department and the deeper
4109 pockets, me or them.
4110
4111 </p><a class="indexterm" name="idp40171360"></a></li><li class="listitem"><p>
4112
4113 The question of fair use usually comes up at the end of the
4114 project, when we are up against a release deadline and out of
4115 money.
4116 </p></li></ol></div></blockquote></div><a class="indexterm" name="idp40174032"></a><p>
4117 In theory, fair use means you need no permission. The theory therefore
4118 supports free culture and insulates against a permission culture.  But
4119 in practice, fair use functions very differently. The fuzzy lines of
4120 the law, tied to the extraordinary liability if lines are crossed,
4121 means that the effective fair use for many types of creators is
4122 slight. The law has the right aim; practice has defeated the aim.
4123 </p><p>
4124 This practice shows just how far the law has come from its
4125 eighteenth-century roots. The law was born as a shield to protect
4126 publishers' profits against the unfair competition of a pirate. It has
4127 matured into a sword that interferes with any use, transformative or
4128 not.
4129 </p><a class="indexterm" name="idp40176736"></a><a class="indexterm" name="idp40178064"></a><a class="indexterm" name="idp40179264"></a><a class="indexterm" name="idp40180512"></a><a class="indexterm" name="idp40181840"></a><a class="indexterm" name="idp40183184"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp40146624" class="footnote"><p><a href="#idp40146624" class="para"><sup class="para">[112] </sup></a>
4130
4131 For an excellent argument that such use is <span class="quote">«<span class="quote">fair use,</span>»</span> but that
4132 lawyers don't permit recognition that it is <span class="quote">«<span class="quote">fair use,</span>»</span> see Richard
4133 A. Posner with William F. Patry, <span class="quote">«<span class="quote">Fair Use and Statutory Reform in the
4134 Wake of <em class="citetitle">Eldred</em></span>»</span> (draft on file with author), University of Chicago
4135 Law School, 5 August 2003.
4136 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="transformers"></a>Chapter 8. Chapter Eight: Transformers</h2></div></div></div><a class="indexterm" name="idp40186272"></a><a class="indexterm" name="idxalbenalex1"></a><a class="indexterm" name="idp40188560"></a><p>
4137 <span class="strong"><strong>In 1993</strong></span>, Alex Alben was a lawyer
4138 working at Starwave, Inc.  Starwave was an innovative company founded
4139 by Microsoft cofounder Paul Allen to develop digital
4140 entertainment. Long before the Internet became popular, Starwave began
4141 investing in new technology for delivering entertainment in
4142 anticipation of the power of networks.
4143 </p><a class="indexterm" name="idxartistsretrospective"></a><a class="indexterm" name="idxcdroms"></a><p>
4144 Alben had a special interest in new technology. He was intrigued by
4145 the emerging market for CD-ROM technology&#8212;not to distribute
4146 film, but to do things with film that otherwise would be very
4147 difficult.  In 1993, he launched an initiative to develop a product to
4148 build retrospectives on the work of particular actors. The first actor
4149 chosen was Clint Eastwood. The idea was to showcase all of the work of
4150 Eastwood, with clips from his films and interviews with figures
4151 important to his career.
4152 </p><p>
4153 At that time, Eastwood had made more than fifty films, as an actor and
4154 as a director. Alben began with a series of interviews with Eastwood,
4155 asking him about his career. Because Starwave produced those
4156 interviews, it was free to include them on the CD.
4157 </p><p>
4158
4159 That alone would not have made a very interesting product, so
4160 Starwave wanted to add content from the movies in Eastwood's career:
4161 posters, scripts, and other material relating to the films Eastwood
4162 made. Most of his career was spent at Warner Brothers, and so it was
4163 relatively easy to get permission for that content.
4164 </p><p>
4165 Then Alben and his team decided to include actual film clips. <span class="quote">«<span class="quote">Our
4166 goal was that we were going to have a clip from every one of
4167 Eastwood's films,</span>»</span> Alben told me. It was here that the problem
4168 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
4169 one had ever tried to do this in the context of an artistic look at an
4170 actor's career.</span>»</span>
4171 </p><p>
4172 Alben brought the idea to Michael Slade, the CEO of Starwave.
4173 Slade asked, <span class="quote">«<span class="quote">Well, what will it take?</span>»</span>
4174 </p><p>
4175 Alben replied, <span class="quote">«<span class="quote">Well, we're going to have to clear rights from
4176 everyone who appears in these films, and the music and everything
4177 else that we want to use in these film clips.</span>»</span> Slade said, <span class="quote">«<span class="quote">Great! Go
4178 for it.</span>»</span><a href="#ftn.idp40200752" class="footnote" name="idp40200752"><sup class="footnote">[113]</sup></a>
4179 </p><p>
4180 The problem was that neither Alben nor Slade had any idea what
4181 clearing those rights would mean. Every actor in each of the films
4182 could have a claim to royalties for the reuse of that film. But CD-
4183 ROMs had not been specified in the contracts for the actors, so there
4184 was no clear way to know just what Starwave was to do.
4185 </p><p>
4186 I asked Alben how he dealt with the problem. With an obvious
4187 pride in his resourcefulness that obscured the obvious bizarreness of his
4188 tale, Alben recounted just what they did:
4189 </p><div class="blockquote"><blockquote class="blockquote"><p>
4190 So we very mechanically went about looking up the film clips.  We made
4191 some artistic decisions about what film clips to include&#8212;of
4192 course we were going to use the <span class="quote">«<span class="quote">Make my day</span>»</span> clip from <em class="citetitle">Dirty
4193 Harry</em>. But you then need to get the guy on the ground who's wiggling
4194 under the gun and you need to get his permission.  And then you have
4195 to decide what you are going to pay him.
4196 </p><p>
4197
4198 We decided that it would be fair if we offered them the dayplayer rate
4199 for the right to reuse that performance. We're talking about a clip of
4200 less than a minute, but to reuse that performance in the CD-ROM the
4201 rate at the time was about $600.  So we had to identify the
4202 people&#8212;some of them were hard to identify because in Eastwood
4203 movies you can't tell who's the guy crashing through the
4204 glass&#8212;is it the actor or is it the stuntman?  And then we just,
4205 we put together a team, my assistant and some others, and we just
4206 started calling people.
4207 </p></blockquote></div><a class="indexterm" name="idp40208464"></a><p>
4208 Some actors were glad to help&#8212;Donald Sutherland, for example,
4209 followed up himself to be sure that the rights had been cleared.
4210 Others were dumbfounded at their good fortune. Alben would ask,
4211 <span class="quote">«<span class="quote">Hey, can I pay you $600 or maybe if you were in two films, you
4212 know, $1,200?</span>»</span> And they would say, <span class="quote">«<span class="quote">Are you for real? Hey, I'd love
4213 to get $1,200.</span>»</span> And some of course were a bit difficult (estranged
4214 ex-wives, in particular). But eventually, Alben and his team had
4215 cleared the rights to this retrospective CD-ROM on Clint Eastwood's
4216 career.
4217 </p><p>
4218 It was one <span class="emphasis"><em>year</em></span> later&#8212;<span class="quote">«<span class="quote">and even then we
4219 weren't sure whether we were totally in the clear.</span>»</span>
4220 </p><p>
4221 Alben is proud of his work. The project was the first of its kind and
4222 the only time he knew of that a team had undertaken such a massive
4223 project for the purpose of releasing a retrospective.
4224 </p><div class="blockquote"><blockquote class="blockquote"><p>
4225 Everyone thought it would be too hard. Everyone just threw up their
4226 hands and said, <span class="quote">«<span class="quote">Oh, my gosh, a film, it's so many copyrights, there's
4227 the music, there's the screenplay, there's the director, there's the
4228 actors.</span>»</span> But we just broke it down. We just put it into its
4229 constituent parts and said, <span class="quote">«<span class="quote">Okay, there's this many actors, this many
4230 directors, &#8230; this many musicians,</span>»</span> and we just went at it very
4231 systematically and cleared the rights.
4232 </p></blockquote></div><p>
4233
4234
4235 And no doubt, the product itself was exceptionally good. Eastwood
4236 loved it, and it sold very well.
4237 </p><a class="indexterm" name="idp40216528"></a><p>
4238 But I pressed Alben about how weird it seems that it would have to
4239 take a year's work simply to clear rights. No doubt Alben had done
4240 this efficiently, but as Peter Drucker has famously quipped, <span class="quote">«<span class="quote">There is
4241 nothing so useless as doing efficiently that which should not be done
4242 at all.</span>»</span><a href="#ftn.idp40218128" class="footnote" name="idp40218128"><sup class="footnote">[114]</sup></a>
4243 Did it make sense, I asked Alben, that this is the way a new work
4244 has to be made?
4245 </p><p>
4246 For, as he acknowledged, <span class="quote">«<span class="quote">very few &#8230; have the time and resources,
4247 and the will to do this,</span>»</span> and thus, very few such works would ever be
4248 made. Does it make sense, I asked him, from the standpoint of what
4249 anybody really thought they were ever giving rights for originally, that
4250 you would have to go clear rights for these kinds of clips?
4251 </p><div class="blockquote"><blockquote class="blockquote"><p>
4252 I don't think so. When an actor renders a performance in a movie,
4253 he or she gets paid very well. &#8230; And then when 30 seconds of
4254 that performance is used in a new product that is a retrospective
4255 of somebody's career, I don't think that that person &#8230; should be
4256 compensated for that.
4257 </p></blockquote></div><p>
4258 Or at least, is this <span class="emphasis"><em>how</em></span> the artist should be
4259 compensated? Would it make sense, I asked, for there to be some kind
4260 of statutory license that someone could pay and be free to make
4261 derivative use of clips like this?  Did it really make sense that a
4262 follow-on creator would have to track down every artist, actor,
4263 director, musician, and get explicit permission from each? Wouldn't a
4264 lot more be created if the legal part of the creative process could be
4265 made to be more clean?
4266 </p><div class="blockquote"><blockquote class="blockquote"><p>
4267 Absolutely. I think that if there were some fair-licensing
4268 mechanism&#8212;where you weren't subject to hold-ups and you weren't
4269 subject to estranged former spouses&#8212;you'd see a lot more of this
4270 work, because it wouldn't be so daunting to try to put together a
4271
4272 retrospective of someone's career and meaningfully illustrate it with
4273 lots of media from that person's career. You'd build in a cost as the
4274 producer of one of these things. You'd build in a cost of paying X
4275 dollars to the talent that performed. But it would be a known
4276 cost. That's the thing that trips everybody up and makes this kind of
4277 product hard to get off the ground. If you knew I have a hundred
4278 minutes of film in this product and it's going to cost me X, then you
4279 build your budget around it, and you can get investments and
4280 everything else that you need to produce it. But if you say, <span class="quote">«<span class="quote">Oh, I
4281 want a hundred minutes of something and I have no idea what it's going
4282 to cost me, and a certain number of people are going to hold me up for
4283 money,</span>»</span> then it becomes difficult to put one of these things together.
4284 </p></blockquote></div><p>
4285 Alben worked for a big company. His company was backed by some of the
4286 richest investors in the world. He therefore had authority and access
4287 that the average Web designer would not have. So if it took him a
4288 year, how long would it take someone else? And how much creativity is
4289 never made just because the costs of clearing the rights are so high?
4290 </p><a class="indexterm" name="idp40227296"></a><a class="indexterm" name="idp40228464"></a><p>
4291 These costs are the burdens of a kind of regulation. Put on a
4292 Republican hat for a moment, and get angry for a bit. The government
4293 defines the scope of these rights, and the scope defined determines
4294 how much it's going to cost to negotiate them. (Remember the idea that
4295 land runs to the heavens, and imagine the pilot purchasing flythrough
4296 rights as he negotiates to fly from Los Angeles to San Francisco.)
4297 These rights might well have once made sense; but as circumstances
4298 change, they make no sense at all. Or at least, a well-trained,
4299 regulationminimizing Republican should look at the rights and ask,
4300 <span class="quote">«<span class="quote">Does this still make sense?</span>»</span>
4301 </p><a class="indexterm" name="idp40231824"></a><p>
4302 I've seen the flash of recognition when people get this point, but only
4303 a few times. The first was at a conference of federal judges in California.
4304 The judges were gathered to discuss the emerging topic of cyber-law. I
4305 was asked to be on the panel. Harvey Saferstein, a well-respected lawyer
4306
4307
4308 from an L.A. firm, introduced the panel with a video that he and a
4309 friend, Robert Fairbank, had produced.
4310 </p><p>
4311 The video was a brilliant collage of film from every period in the
4312 twentieth century, all framed around the idea of a <em class="citetitle">60 Minutes</em> episode.
4313 The execution was perfect, down to the sixty-minute stopwatch. The
4314 judges loved every minute of it.
4315 </p><a class="indexterm" name="idp40235296"></a><p>
4316 When the lights came up, I looked over to my copanelist, David
4317 Nimmer, perhaps the leading copyright scholar and practitioner in the
4318 nation. He had an astonished look on his face, as he peered across the
4319 room of over 250 well-entertained judges. Taking an ominous tone, he
4320 began his talk with a question: <span class="quote">«<span class="quote">Do you know how many federal laws
4321 were just violated in this room?</span>»</span>
4322 </p><p>
4323 <a class="indexterm" name="idp40237536"></a>
4324 <a class="indexterm" name="idp40238352"></a>
4325 <a class="indexterm" name="idp40239168"></a>
4326 <a class="indexterm" name="idp40240272"></a>
4327 <a class="indexterm" name="idp40241104"></a>
4328 For of course, the two brilliantly talented creators who made this
4329 film hadn't done what Alben did. They hadn't spent a year clearing the
4330 rights to these clips; technically, what they had done violated the
4331 law.  Of course, it wasn't as if they or anyone were going to be
4332 prosecuted for this violation (the presence of 250 judges and a gaggle
4333 of federal marshals notwithstanding). But Nimmer was making an
4334 important point: A year before anyone would have heard of the word
4335 Napster, and two years before another member of our panel, David
4336 Boies, would defend Napster before the Ninth Circuit Court of Appeals,
4337 Nimmer was trying to get the judges to see that the law would not be
4338 friendly to the capacities that this technology would
4339 enable. Technology means you can now do amazing things easily; but you
4340 couldn't easily do them legally.
4341 </p><p>
4342 We live in a <span class="quote">«<span class="quote">cut and paste</span>»</span> culture enabled by technology. Anyone
4343 building a presentation knows the extraordinary freedom that the cut
4344 and paste architecture of the Internet created&#8212;in a second you can
4345 find just about any image you want; in another second, you can have it
4346 planted in your presentation.
4347 </p><a class="indexterm" name="idp40243600"></a><p>
4348 But presentations are just a tiny beginning. Using the Internet and
4349
4350 its archives, musicians are able to string together mixes of sound
4351 never before imagined; filmmakers are able to build movies out of
4352 clips on computers around the world. An extraordinary site in Sweden
4353 takes images of politicians and blends them with music to create
4354 biting political commentary. A site called Camp Chaos has produced
4355 some of the most biting criticism of the record industry that there is
4356 through the mixing of Flash! and music.
4357 </p><p>
4358 All of these creations are technically illegal. Even if the creators
4359 wanted to be <span class="quote">«<span class="quote">legal,</span>»</span> the cost of complying with the law is impossibly
4360 high. Therefore, for the law-abiding sorts, a wealth of creativity is
4361 never made. And for that part that is made, if it doesn't follow the
4362 clearance rules, it doesn't get released.
4363 </p><p>
4364 To some, these stories suggest a solution: Let's alter the mix of
4365 rights so that people are free to build upon our culture. Free to add
4366 or mix as they see fit. We could even make this change without
4367 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>
4368 Instead, the system could simply make it easy for follow-on creators
4369 to compensate artists without requiring an army of lawyers to come
4370 along: a rule, for example, that says <span class="quote">«<span class="quote">the royalty owed the copyright
4371 owner of an unregistered work for the derivative reuse of his work
4372 will be a flat 1 percent of net revenues, to be held in escrow for the
4373 copyright owner.</span>»</span> Under this rule, the copyright owner could benefit
4374 from some royalty, but he would not have the benefit of a full
4375 property right (meaning the right to name his own price) unless he
4376 registers the work.
4377 </p><p>
4378 Who could possibly object to this? And what reason would there be
4379 for objecting? We're talking about work that is not now being made;
4380 which if made, under this plan, would produce new income for artists.
4381 What reason would anyone have to oppose it?
4382 </p><p>
4383 <span class="strong"><strong>In February 2003</strong></span>, DreamWorks
4384 studios announced an agreement with Mike Myers, the comic genius of
4385 <em class="citetitle">Saturday Night Live</em> and
4386
4387 Austin Powers. According to the announcement, Myers and Dream-Works
4388 would work together to form a <span class="quote">«<span class="quote">unique filmmaking pact.</span>»</span> Under the
4389 agreement, DreamWorks <span class="quote">«<span class="quote">will acquire the rights to existing motion
4390 picture hits and classics, write new storylines and&#8212;with the use
4391 of stateof-the-art digital technology&#8212;insert Myers and other
4392 actors into the film, thereby creating an entirely new piece of
4393 entertainment.</span>»</span>
4394 </p><p>
4395 The announcement called this <span class="quote">«<span class="quote">film sampling.</span>»</span> As Myers explained,
4396 <span class="quote">«<span class="quote">Film Sampling is an exciting way to put an original spin on existing
4397 films and allow audiences to see old movies in a new light. Rap
4398 artists have been doing this for years with music and now we are able
4399 to take that same concept and apply it to film.</span>»</span> Steven Spielberg is
4400 quoted as saying, <span class="quote">«<span class="quote">If anyone can create a way to bring old films to
4401 new audiences, it is Mike.</span>»</span>
4402 </p><p>
4403 Spielberg is right. Film sampling by Myers will be brilliant. But if
4404 you don't think about it, you might miss the truly astonishing point
4405 about this announcement. As the vast majority of our film heritage
4406 remains under copyright, the real meaning of the DreamWorks
4407 announcement is just this: It is Mike Myers and only Mike Myers who is
4408 free to sample. Any general freedom to build upon the film archive of
4409 our culture, a freedom in other contexts presumed for us all, is now a
4410 privilege reserved for the funny and famous&#8212;and presumably rich.
4411 </p><p>
4412 This privilege becomes reserved for two sorts of reasons. The first
4413 continues the story of the last chapter: the vagueness of <span class="quote">«<span class="quote">fair use.</span>»</span>
4414 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
4415 rely upon so weak a doctrine to create. That leads to the second reason
4416 that the privilege is reserved for the few: The costs of negotiating the
4417 legal rights for the creative reuse of content are astronomically high.
4418 These costs mirror the costs with fair use: You either pay a lawyer to
4419 defend your fair use rights or pay a lawyer to track down permissions
4420 so you don't have to rely upon fair use rights. Either way, the creative
4421 process is a process of paying lawyers&#8212;again a privilege, or perhaps a
4422 curse, reserved for the few.
4423 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp40200752" class="footnote"><p><a href="#idp40200752" class="para"><sup class="para">[113] </sup></a>
4424
4425 Technically, the rights that Alben had to clear were mainly those of
4426 publicity&#8212;rights an artist has to control the commercial
4427 exploitation of his image.  But these rights, too, burden <span class="quote">«<span class="quote">Rip, Mix,
4428 Burn</span>»</span> creativity, as this chapter evinces.
4429 <a class="indexterm" name="idp40202352"></a>
4430 <a class="indexterm" name="idp40203472"></a>
4431 </p></div><div id="ftn.idp40218128" class="footnote"><p><a href="#idp40218128" class="para"><sup class="para">[114] </sup></a>
4432
4433 U.S. Department of Commerce Office of Acquisition Management, <em class="citetitle">Seven
4434 Steps to Performance-Based Services Acquisition</em>, available at
4435 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #22</a>.
4436 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="collectors"></a>Chapter 9. Chapter Nine: Collectors</h2></div></div></div><a class="indexterm" name="idxarchivesdigital1"></a><a class="indexterm" name="idp40262208"></a><p>
4437 <span class="strong"><strong>In April 1996</strong></span>, millions of
4438 <span class="quote">«<span class="quote">bots</span>»</span>&#8212;computer codes designed to
4439 <span class="quote">«<span class="quote">spider,</span>»</span> or automatically search the Internet and copy
4440 content&#8212;began running across the Net. Page by page, these bots
4441 copied Internet-based information onto a small set of computers
4442 located in a basement in San Francisco's Presidio. Once the bots
4443 finished the whole of the Internet, they started again. Over and over
4444 again, once every two months, these bits of code took copies of the
4445 Internet and stored them.
4446 </p><a class="indexterm" name="idp40265520"></a><p>
4447 By October 2001, the bots had collected more than five years of
4448 copies. And at a small announcement in Berkeley, California, the
4449 archive that these copies created, the Internet Archive, was opened to
4450 the world. Using a technology called <span class="quote">«<span class="quote">the Way Back Machine,</span>»</span> you could
4451 enter a Web page, and see all of its copies going back to 1996, as
4452 well as when those pages changed.
4453 </p><a class="indexterm" name="idxorwellgeorge"></a><p>
4454 This is the thing about the Internet that Orwell would have
4455 appreciated.  In the dystopia described in <em class="citetitle">1984</em>, old newspapers were
4456 constantly updated to assure that the current view of the world,
4457 approved of by the government, was not contradicted by previous news
4458 reports.
4459 </p><p>
4460
4461 Thousands of workers constantly reedited the past, meaning there was
4462 no way ever to know whether the story you were reading today was the
4463 story that was printed on the date published on the paper.
4464 </p><p>
4465 It's the same with the Internet. If you go to a Web page today,
4466 there's no way for you to know whether the content you are reading is
4467 the same as the content you read before. The page may seem the same,
4468 but the content could easily be different. The Internet is Orwell's
4469 library&#8212;constantly updated, without any reliable memory.
4470 </p><a class="indexterm" name="idp40271232"></a><a class="indexterm" name="idp40273040"></a><p>
4471 Until the Way Back Machine, at least. With the Way Back Machine, and
4472 the Internet Archive underlying it, you can see what the Internet
4473 was. You have the power to see what you remember. More importantly,
4474 perhaps, you also have the power to find what you don't remember and
4475 what others might prefer you forget.<a href="#ftn.idp40274432" class="footnote" name="idp40274432"><sup class="footnote">[115]</sup></a>
4476 </p><a class="indexterm" name="idp40278992"></a><p>
4477 <span class="strong"><strong>We take it</strong></span> for granted that we can
4478 go back to see what we remember reading. Think about newspapers. If
4479 you wanted to study the reaction of your hometown newspaper to the
4480 race riots in Watts in 1965, or to Bull Connor's water cannon in 1963,
4481 you could go to your public library and look at the newspapers. Those
4482 papers probably exist on microfiche. If you're lucky, they exist in
4483 paper, too. Either way, you are free, using a library, to go back and
4484 remember&#8212;not just what it is convenient to remember, but
4485 remember something close to the truth.
4486 </p><p>
4487 It is said that those who fail to remember history are doomed to
4488 repeat it. That's not quite correct. We <span class="emphasis"><em>all</em></span>
4489 forget history. The key is whether we have a way to go back to
4490 rediscover what we forget. More directly, the key is whether an
4491 objective past can keep us honest. Libraries help do that, by
4492 collecting content and keeping it, for schoolchildren, for
4493 researchers, for grandma. A free society presumes this knowedge.
4494 </p><p>
4495 The Internet was an exception to this presumption. Until the Internet
4496 Archive, there was no way to go back. The Internet was the
4497 quintessentially transitory medium. And yet, as it becomes more
4498 important in forming and reforming society, it becomes more and more
4499
4500 important to maintain in some historical form. It's just bizarre to
4501 think that we have scads of archives of newspapers from tiny towns
4502 around the world, yet there is but one copy of the Internet&#8212;the
4503 one kept by the Internet Archive.
4504 </p><a class="indexterm" name="idxkahlebrewster"></a><p>
4505 Brewster Kahle is the founder of the Internet Archive. He was a very
4506 successful Internet entrepreneur after he was a successful computer
4507 researcher.  In the 1990s, Kahle decided he had had enough business
4508 success.  It was time to become a different kind of success. So he
4509 launched a series of projects designed to archive human knowledge. The
4510 Internet Archive was just the first of the projects of this Andrew
4511 Carnegie of the Internet. By December of 2002, the archive had over 10
4512 billion pages, and it was growing at about a billion pages a month.
4513 </p><a class="indexterm" name="idp40286384"></a><a class="indexterm" name="idp40287200"></a><a class="indexterm" name="idp40288016"></a><a class="indexterm" name="idp40288832"></a><a class="indexterm" name="idp40289648"></a><a class="indexterm" name="idxnewscoverage2"></a><p>
4514 The Way Back Machine is the largest archive of human knowledge in
4515 human history. At the end of 2002, it held <span class="quote">«<span class="quote">two hundred and thirty
4516 terabytes of material</span>»</span>&#8212;and was <span class="quote">«<span class="quote">ten times larger than the
4517 Library of Congress.</span>»</span> And this was just the first of the archives that
4518 Kahle set out to build. In addition to the Internet Archive, Kahle has
4519 been constructing the Television Archive. Television, it turns out, is
4520 even more ephemeral than the Internet. While much of twentieth-century
4521 culture was constructed through television, only a tiny proportion of
4522 that culture is available for anyone to see today. Three hours of news
4523 are recorded each evening by Vanderbilt University&#8212;thanks to a
4524 specific exemption in the copyright law. That content is indexed, and
4525 is available to scholars for a very low fee. <span class="quote">«<span class="quote">But other than that,
4526 [television] is almost unavailable,</span>»</span> Kahle told me. <span class="quote">«<span class="quote">If you were
4527 Barbara Walters you could get access to [the archives], but if you are
4528 just a graduate student?</span>»</span> As Kahle put it,
4529 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idp40295600"></a><a class="indexterm" name="idp40296416"></a><p>
4530 Do you remember when Dan Quayle was interacting with Murphy Brown?
4531 Remember that back and forth surreal experience of a politician
4532 interacting with a fictional television character? If you were a
4533 graduate student wanting to study that, and you wanted to get those
4534 original back and forth exchanges between the two, the
4535
4536
4537 <em class="citetitle">60 Minutes</em> episode that came out after it &#8230; it would be almost
4538 impossible. &#8230; Those materials are almost unfindable. &#8230;
4539 </p></blockquote></div><a class="indexterm" name="idp40298992"></a><p>
4540 Why is that? Why is it that the part of our culture that is recorded
4541 in newspapers remains perpetually accessible, while the part that is
4542 recorded on videotape is not? How is it that we've created a world
4543 where researchers trying to understand the effect of media on
4544 nineteenthcentury America will have an easier time than researchers
4545 trying to understand the effect of media on twentieth-century America?
4546 </p><p>
4547 In part, this is because of the law. Early in American copyright law,
4548 copyright owners were required to deposit copies of their work in
4549 libraries.  These copies were intended both to facilitate the spread
4550 of knowledge and to assure that a copy of the work would be around
4551 once the copyright expired, so that others might access and copy the
4552 work.
4553 </p><a class="indexterm" name="idp40301616"></a><a class="indexterm" name="idp40302432"></a><p>
4554 These rules applied to film as well. But in 1915, the Library
4555 of Congress made an exception for film. Film could be copyrighted so
4556 long as such deposits were made. But the filmmaker was then allowed to
4557 borrow back the deposits&#8212;for an unlimited time at no cost. In
4558 1915 alone, there were more than 5,475 films deposited and <span class="quote">«<span class="quote">borrowed
4559 back.</span>»</span>  Thus, when the copyrights to films expire, there is no copy
4560 held by any library. The copy exists&#8212;if it exists at
4561 all&#8212;in the library archive of the film company.<a href="#ftn.idp40304656" class="footnote" name="idp40304656"><sup class="footnote">[116]</sup></a>
4562 </p><p>
4563 The same is generally true about television. Television broadcasts
4564 were originally not copyrighted&#8212;there was no way to capture the
4565 broadcasts, so there was no fear of <span class="quote">«<span class="quote">theft.</span>»</span> But as technology enabled
4566 capturing, broadcasters relied increasingly upon the law. The law
4567 required they make a copy of each broadcast for the work to be
4568 <span class="quote">«<span class="quote">copyrighted.</span>»</span>  But those copies were simply kept by the
4569 broadcasters. No library had any right to them; the government didn't
4570 demand them.  The content of this part of American culture is
4571 practically invisible to anyone who would look.
4572 </p><a class="indexterm" name="idp40309152"></a><p>
4573 Kahle was eager to correct this. Before September 11, 2001, he and
4574
4575 his allies had started capturing television. They selected twenty
4576 stations from around the world and hit the Record button. After
4577 September 11, Kahle, working with dozens of others, selected twenty
4578 stations from around the world and, beginning October 11, 2001, made
4579 their coverage during the week of September 11 available free on-line.
4580 Anyone could see how news reports from around the world covered the
4581 events of that day.
4582 </p><a class="indexterm" name="idp40311120"></a><a class="indexterm" name="idp40311904"></a><a class="indexterm" name="idp40313008"></a><a class="indexterm" name="idp40314208"></a><a class="indexterm" name="idp40315312"></a><a class="indexterm" name="idp40316128"></a><a class="indexterm" name="idp40316944"></a><a class="indexterm" name="idp40317760"></a><p>
4583 Kahle had the same idea with film. Working with Rick Prelinger, whose
4584 archive of film includes close to 45,000 <span class="quote">«<span class="quote">ephemeral films</span>»</span> (meaning
4585 films other than Hollywood movies, films that were never copyrighted),
4586 Kahle established the Movie Archive. Prelinger let Kahle digitize
4587 1,300 films in this archive and post those films on the Internet to be
4588 downloaded for free. Prelinger's is a for-profit company. It sells
4589 copies of these films as stock footage. What he has discovered is that
4590 after he made a significant chunk available for free, his stock
4591 footage sales went up dramatically. People could easily find the
4592 material they wanted to use. Some downloaded that material and made
4593 films on their own. Others purchased copies to enable other films to
4594 be made.  Either way, the archive enabled access to this important
4595 part of our culture.  Want to see a copy of the <span class="quote">«<span class="quote">Duck and Cover</span>»</span> film
4596 that instructed children how to save themselves in the middle of
4597 nuclear attack? Go to archive.org, and you can download the film in a
4598 few minutes&#8212;for free.
4599 </p><p>
4600 Here again, Kahle is providing access to a part of our culture that we
4601 otherwise could not get easily, if at all. It is yet another part of
4602 what defines the twentieth century that we have lost to history. The
4603 law doesn't require these copies to be kept by anyone, or to be
4604 deposited in an archive by anyone. Therefore, there is no simple way
4605 to find them.
4606 </p><p>
4607 The key here is access, not price. Kahle wants to enable free access
4608 to this content, but he also wants to enable others to sell access to
4609 it. His aim is to ensure competition in access to this important part
4610 of our culture.  Not during the commercial life of a bit of creative
4611 property, but during a second life that all creative property
4612 has&#8212;a noncommercial life.
4613 </p><p>
4614 For here is an idea that we should more clearly recognize. Every bit
4615 of creative property goes through different <span class="quote">«<span class="quote">lives.</span>»</span> In its first
4616 life, if the
4617
4618
4619 creator is lucky, the content is sold. In such cases the commercial
4620 market is successful for the creator. The vast majority of creative
4621 property doesn't enjoy such success, but some clearly does. For that
4622 content, commercial life is extremely important. Without this
4623 commercial market, there would be, many argue, much less creativity.
4624 </p><p>
4625 After the commercial life of creative property has ended, our
4626 tradition has always supported a second life as well. A newspaper
4627 delivers the news every day to the doorsteps of America. The very next
4628 day, it is used to wrap fish or to fill boxes with fragile gifts or to
4629 build an archive of knowledge about our history. In this second life,
4630 the content can continue to inform even if that information is no
4631 longer sold.
4632 </p><a class="indexterm" name="idp40324832"></a><p>
4633 The same has always been true about books. A book goes out of print
4634 very quickly (the average today is after about a year<a href="#ftn.idp40326304" class="footnote" name="idp40326304"><sup class="footnote">[117]</sup></a>). After
4635 it is out of print, it can be sold in used book stores without the
4636 copyright owner getting anything and stored in libraries, where many
4637 get to read the book, also for free. Used book stores and libraries
4638 are thus the second life of a book. That second life is extremely
4639 important to the spread and stability of culture.
4640 </p><p>
4641 Yet increasingly, any assumption about a stable second life for
4642 creative property does not hold true with the most important
4643 components of popular culture in the twentieth and twenty-first
4644 centuries. For these&#8212;television, movies, music, radio, the
4645 Internet&#8212;there is no guarantee of a second life. For these sorts
4646 of culture, it is as if we've replaced libraries with Barnes &amp;
4647 Noble superstores. With this culture, what's accessible is nothing but
4648 what a certain limited market demands.  Beyond that, culture
4649 disappears.
4650 </p><p>
4651 <span class="strong"><strong>For most of</strong></span> the twentieth century,
4652 it was economics that made this so. It would have been insanely
4653 expensive to collect and make accessible all television and film and
4654 music: The cost of analog copies is extraordinarily high. So even
4655 though the law in principle would have restricted the ability of a
4656 Brewster Kahle to copy culture generally, the
4657
4658 real restriction was economics. The market made it impossibly
4659 difficult to do anything about this ephemeral culture; the law had
4660 little practical effect.
4661 </p><p>
4662 Perhaps the single most important feature of the digital revolution is
4663 that for the first time since the Library of Alexandria, it is
4664 feasible to imagine constructing archives that hold all culture
4665 produced or distributed publicly. Technology makes it possible to
4666 imagine an archive of all books published, and increasingly makes it
4667 possible to imagine an archive of all moving images and sound.
4668 </p><p>
4669 The scale of this potential archive is something we've never imagined
4670 before. The Brewster Kahles of our history have dreamed about it; but
4671 we are for the first time at a point where that dream is possible. As
4672 Kahle describes,
4673 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idp40335520"></a><a class="indexterm" name="idp40336592"></a><a class="indexterm" name="idp40337696"></a><a class="indexterm" name="idp40338816"></a><a class="indexterm" name="idp40339920"></a><p>
4674 It looks like there's about two to three million recordings of music.
4675 Ever. There are about a hundred thousand theatrical releases of
4676 movies, &#8230; and about one to two million movies [distributed] during
4677 the twentieth century. There are about twenty-six million different
4678 titles of books. All of these would fit on computers that would fit in
4679 this room and be able to be afforded by a small company.  So we're at
4680 a turning point in our history. Universal access is the goal. And the
4681 opportunity of leading a different life, based on this, is
4682 &#8230; thrilling. It could be one of the things humankind would be most
4683 proud of. Up there with the Library of Alexandria, putting a man on
4684 the moon, and the invention of the printing press.
4685 </p></blockquote></div><a class="indexterm" name="idp40342352"></a><p>
4686 Kahle is not the only librarian. The Internet Archive is not the only
4687 archive. But Kahle and the Internet Archive suggest what the future of
4688 libraries or archives could be. <span class="emphasis"><em>When</em></span> the
4689 commercial life of creative property ends, I don't know. But it
4690 does. And whenever it does, Kahle and his archive hint at a world
4691 where this knowledge, and culture, remains perpetually available. Some
4692 will draw upon it to understand it;
4693
4694 some to criticize it. Some will use it, as Walt Disney did, to
4695 re-create the past for the future. These technologies promise
4696 something that had become unimaginable for much of our past&#8212;a
4697 future <span class="emphasis"><em>for</em></span> our past. The technology of digital
4698 arts could make the dream of the Library of Alexandria real again.
4699 </p><p>
4700 Technologists have thus removed the economic costs of building such an
4701 archive. But lawyers' costs remain. For as much as we might like to
4702 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,
4703 the <span class="quote">«<span class="quote">content</span>»</span> that is collected in these digital spaces is also
4704 someone's <span class="quote">«<span class="quote">property.</span>»</span> And the law of property restricts the freedoms
4705 that Kahle and others would exercise.
4706 </p><a class="indexterm" name="idp40347872"></a><a class="indexterm" name="idp40349184"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp40274432" class="footnote"><p><a href="#idp40274432" class="para"><sup class="para">[115] </sup></a>
4707
4708 <a class="indexterm" name="idp40275168"></a>
4709 <a class="indexterm" name="idp40275952"></a>
4710 <a class="indexterm" name="idp40276768"></a>
4711 The temptations remain, however. Brewster Kahle reports that the White
4712 House changes its own press releases without notice. A May 13, 2003,
4713 press release stated, <span class="quote">«<span class="quote">Combat Operations in Iraq Have Ended.</span>»</span> That was
4714 later changed, without notice, to <span class="quote">«<span class="quote">Major Combat Operations in Iraq
4715 Have Ended.</span>»</span>  E-mail from Brewster Kahle, 1 December 2003.
4716 </p></div><div id="ftn.idp40304656" class="footnote"><p><a href="#idp40304656" class="para"><sup class="para">[116] </sup></a>
4717
4718 Doug Herrick, <span class="quote">«<span class="quote">Toward a National Film Collection: Motion Pictures at
4719 the Library of Congress,</span>»</span> <em class="citetitle">Film Library Quarterly</em> 13 nos. 2&#8211;3
4720 (1980): 5; Anthony Slide, <em class="citetitle">Nitrate Won't Wait: A History of Film
4721 Preservation in the United States</em> (Jefferson, N.C.: McFarland &amp;
4722 Co., 1992), 36.
4723 </p></div><div id="ftn.idp40326304" class="footnote"><p><a href="#idp40326304" class="para"><sup class="para">[117] </sup></a>
4724
4725 <a class="indexterm" name="idp40327040"></a>
4726 Dave Barns, <span class="quote">«<span class="quote">Fledgling Career in Antique Books: Woodstock Landlord,
4727 Bar Owner Starts a New Chapter by Adopting Business,</span>»</span> <em class="citetitle">Chicago Tribune</em>,
4728 5 September 1997, at Metro Lake 1L. Of books published between 1927
4729 and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese,
4730 <span class="quote">«<span class="quote">The First Sale Doctrine in the Era of Digital Networks,</span>»</span> <em class="citetitle">Boston
4731 College Law Review</em> 44 (2003): 593 n. 51.
4732 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="property-i"></a>Chapter 10. Chapter Ten: <span class="quote">«<span class="quote">Property</span>»</span></h2></div></div></div><a class="indexterm" name="idp40352624"></a><a class="indexterm" name="idp40353440"></a><a class="indexterm" name="idxvalentijackbackgroundof"></a><p>
4733 <span class="strong"><strong>Jack Valenti</strong></span> has been the president
4734 of the Motion Picture Association of America since 1966. He first came
4735 to Washington, D.C., with Lyndon Johnson's
4736 administration&#8212;literally. The famous picture of Johnson's
4737 swearing-in on Air Force One after the assassination of President
4738 Kennedy has Valenti in the background. In his almost forty years of
4739 running the MPAA, Valenti has established himself as perhaps the most
4740 prominent and effective lobbyist in Washington.
4741 </p><a class="indexterm" name="idp40357136"></a><a class="indexterm" name="idp40358560"></a><a class="indexterm" name="idp40359344"></a><a class="indexterm" name="idp40360160"></a><a class="indexterm" name="idp40360976"></a><a class="indexterm" name="idp40361808"></a><a class="indexterm" name="idp40362624"></a><p>
4742 The MPAA is the American branch of the international Motion Picture
4743 Association. It was formed in 1922 as a trade association whose goal
4744 was to defend American movies against increasing domestic criticism.
4745 The organization now represents not only filmmakers but producers and
4746 distributors of entertainment for television, video, and cable. Its
4747 board is made up of the chairmen and presidents of the seven major
4748 producers and distributors of motion picture and television programs
4749 in the United States: Walt Disney, Sony Pictures Entertainment, MGM,
4750 Paramount Pictures, Twentieth Century Fox, Universal Studios, and
4751 Warner Brothers.
4752 </p><p>
4753
4754 Valenti is only the third president of the MPAA. No president before
4755 him has had as much influence over that organization, or over
4756 Washington. As a Texan, Valenti has mastered the single most important
4757 political skill of a Southerner&#8212;the ability to appear simple and
4758 slow while hiding a lightning-fast intellect. To this day, Valenti
4759 plays the simple, humble man. But this Harvard MBA, and author of four
4760 books, who finished high school at the age of fifteen and flew more
4761 than fifty combat missions in World War II, is no Mr. Smith. When
4762 Valenti went to Washington, he mastered the city in a quintessentially
4763 Washingtonian way.
4764 </p><p>
4765 In defending artistic liberty and the freedom of speech that our
4766 culture depends upon, the MPAA has done important good. In crafting
4767 the MPAA rating system, it has probably avoided a great deal of
4768 speech-regulating harm. But there is an aspect to the organization's
4769 mission that is both the most radical and the most important. This is
4770 the organization's effort, epitomized in Valenti's every act, to
4771 redefine the meaning of <span class="quote">«<span class="quote">creative property.</span>»</span>
4772 </p><p>
4773 In 1982, Valenti's testimony to Congress captured the strategy
4774 perfectly:
4775 </p><div class="blockquote"><blockquote class="blockquote"><p>
4776 No matter the lengthy arguments made, no matter the charges and the
4777 counter-charges, no matter the tumult and the shouting, reasonable men
4778 and women will keep returning to the fundamental issue, the central
4779 theme which animates this entire debate: <span class="emphasis"><em>Creative property
4780 owners must be accorded the same rights and protection resident in all
4781 other property owners in the nation</em></span>. That is the issue.
4782 That is the question. And that is the rostrum on which this entire
4783 hearing and the debates to follow must rest.<a href="#ftn.idp40369024" class="footnote" name="idp40369024"><sup class="footnote">[118]</sup></a>
4784 </p></blockquote></div><p>
4785 The strategy of this rhetoric, like the strategy of most of Valenti's
4786 rhetoric, is brilliant and simple and brilliant because simple. The
4787 <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
4788 this:
4789
4790 <span class="quote">«<span class="quote">Creative property owners must be accorded the same rights and
4791 protections resident in all other property owners in the nation.</span>»</span>
4792 There are no second-class citizens, Valenti might have
4793 continued. There should be no second-class property owners.
4794 </p><p>
4795 This claim has an obvious and powerful intuitive pull. It is stated
4796 with such clarity as to make the idea as obvious as the notion that we
4797 use elections to pick presidents. But in fact, there is no more
4798 extreme a claim made by <span class="emphasis"><em>anyone</em></span> who is serious in
4799 this debate than this claim of Valenti's. Jack Valenti, however sweet
4800 and however brilliant, is perhaps the nation's foremost extremist when
4801 it comes to the nature and scope of <span class="quote">«<span class="quote">creative property.</span>»</span> His views
4802 have <span class="emphasis"><em>no</em></span> reasonable connection to our actual legal
4803 tradition, even if the subtle pull of his Texan charm has slowly
4804 redefined that tradition, at least in Washington.
4805 </p><a class="indexterm" name="idp40375168"></a><p>
4806 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
4807 precise sense that lawyers are trained to understand,<a href="#ftn.idp40377728" class="footnote" name="idp40377728"><sup class="footnote">[119]</sup></a> it has never been the case, nor should it be, that
4808 <span class="quote">«<span class="quote">creative property owners</span>»</span> have been <span class="quote">«<span class="quote">accorded the same rights and
4809 protection resident in all other property owners.</span>»</span> Indeed, if creative
4810 property owners were given the same rights as all other property
4811 owners, that would effect a radical, and radically undesirable, change
4812 in our tradition.
4813 </p><p>
4814 Valenti knows this. But he speaks for an industry that cares squat for
4815 our tradition and the values it represents. He speaks for an industry
4816 that is instead fighting to restore the tradition that the British
4817 overturned in 1710. In the world that Valenti's changes would create,
4818 a powerful few would exercise powerful control over how our creative
4819 culture would develop.
4820 </p><p>
4821 I have two purposes in this chapter. The first is to convince you
4822 that, historically, Valenti's claim is absolutely wrong. The second is
4823 to convince you that it would be terribly wrong for us to reject our
4824 history.  We have always treated rights in creative property
4825 differently from the rights resident in all other property
4826 owners. They have never been the same. And they should never be the
4827 same, because, however counterintuitive this may seem, to make them
4828 the same would be to
4829
4830
4831 fundamentally weaken the opportunity for new creators to create.
4832 Creativity depends upon the owners of creativity having less than
4833 perfect control.
4834 </p><p>
4835 Organizations such as the MPAA, whose board includes the most powerful
4836 of the old guard, have little interest, their rhetoric
4837 notwithstanding, in assuring that the new can displace them. No
4838 organization does. No person does. (Ask me about tenure, for example.)
4839 But what's good for the MPAA is not necessarily good for America. A
4840 society that defends the ideals of free culture must preserve
4841 precisely the opportunity for new creativity to threaten the old.
4842 </p><p>
4843 <span class="strong"><strong>To get</strong></span> just a hint that there is
4844 something fundamentally wrong in Valenti's argument, we need look no
4845 further than the United States Constitution itself.
4846 </p><p>
4847 The framers of our Constitution loved <span class="quote">«<span class="quote">property.</span>»</span> Indeed, so strongly
4848 did they love property that they built into the Constitution an
4849 important requirement. If the government takes your property&#8212;if
4850 it condemns your house, or acquires a slice of land from your
4851 farm&#8212;it is required, under the Fifth Amendment's <span class="quote">«<span class="quote">Takings
4852 Clause,</span>»</span> to pay you <span class="quote">«<span class="quote">just compensation</span>»</span> for that taking. The
4853 Constitution thus guarantees that property is, in a certain sense,
4854 sacred. It cannot <span class="emphasis"><em>ever</em></span> be taken from the property
4855 owner unless the government pays for the privilege.
4856 </p><p>
4857 Yet the very same Constitution speaks very differently about what
4858 Valenti calls <span class="quote">«<span class="quote">creative property.</span>»</span> In the clause granting Congress the
4859 power to create <span class="quote">«<span class="quote">creative property,</span>»</span> the Constitution
4860 <span class="emphasis"><em>requires</em></span> that after a <span class="quote">«<span class="quote">limited time,</span>»</span> Congress
4861 take back the rights that it has granted and set the <span class="quote">«<span class="quote">creative
4862 property</span>»</span> free to the public domain. Yet when Congress does this, when
4863 the expiration of a copyright term <span class="quote">«<span class="quote">takes</span>»</span> your copyright and turns it
4864 over to the public domain, Congress does not have any obligation to
4865 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
4866 Constitution that requires compensation for your land
4867
4868 requires that you lose your <span class="quote">«<span class="quote">creative property</span>»</span> right without any
4869 compensation at all.
4870 </p><p>
4871 The Constitution thus on its face states that these two forms of
4872 property are not to be accorded the same rights. They are plainly to
4873 be treated differently. Valenti is therefore not just asking for a
4874 change in our tradition when he argues that creative-property owners
4875 should be accorded the same rights as every other property-right
4876 owner. He is effectively arguing for a change in our Constitution
4877 itself.
4878 </p><a class="indexterm" name="idxjeffersonthomas"></a><p>
4879 Arguing for a change in our Constitution is not necessarily wrong.
4880 There was much in our original Constitution that was plainly wrong.
4881 The Constitution of 1789 entrenched slavery; it left senators to be
4882 appointed rather than elected; it made it possible for the electoral
4883 college to produce a tie between the president and his own vice
4884 president (as it did in 1800). The framers were no doubt
4885 extraordinary, but I would be the first to admit that they made big
4886 mistakes. We have since rejected some of those mistakes; no doubt
4887 there could be others that we should reject as well. So my argument is
4888 not simply that because Jefferson did it, we should, too.
4889 </p><p>
4890 Instead, my argument is that because Jefferson did it, we should at
4891 least try to understand <span class="emphasis"><em>why</em></span>. Why did the framers,
4892 fanatical property types that they were, reject the claim that
4893 creative property be given the same rights as all other property? Why
4894 did they require that for creative property there must be a public
4895 domain?
4896 </p><a class="indexterm" name="idp40398912"></a><p>
4897 To answer this question, we need to get some perspective on the
4898 history of these <span class="quote">«<span class="quote">creative property</span>»</span> rights, and the control that they
4899 enabled.  Once we see clearly how differently these rights have been
4900 defined, we will be in a better position to ask the question that
4901 should be at the core of this war: Not <span class="emphasis"><em>whether</em></span>
4902 creative property should be protected, but how. Not
4903 <span class="emphasis"><em>whether</em></span> we will enforce the rights the law gives
4904 to creative-property owners, but what the particular mix of rights
4905 ought to be. Not <span class="emphasis"><em>whether</em></span> artists should be paid,
4906 but whether institutions designed to assure that artists get paid need
4907 also control how culture develops.
4908 </p><a class="indexterm" name="idp40402944"></a><a class="indexterm" name="idp40403760"></a><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>
4909
4910
4911 To answer these questions, we need a more general way to talk about
4912 how property is protected. More precisely, we need a more general way
4913 than the narrow language of the law allows. In <em class="citetitle">Code and Other Laws of
4914 Cyberspace</em>, I used a simple model to capture this more general
4915 perspective. For any particular right or regulation, this model asks
4916 how four different modalities of regulation interact to support or
4917 weaken the right or regulation. I represented it with this diagram:
4918 </p><div class="figure"><a name="fig-1331"></a><p class="title"><b>Figure 10.1. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="45%"><tr><td align="center"><img src="images/1331.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp40415952"></a><p>
4919 At the center of this picture is a regulated dot: the individual or
4920 group that is the target of regulation, or the holder of a right. (In
4921 each case throughout, we can describe this either as regulation or as
4922 a right.  For simplicity's sake, I will speak only of regulations.)
4923 The ovals represent four ways in which the individual or group might
4924 be regulated&#8212; either constrained or, alternatively, enabled. Law
4925 is the most obvious constraint (to lawyers, at least). It constrains
4926 by threatening punishments after the fact if the rules set in advance
4927 are violated. So if, for example, you willfully infringe Madonna's
4928 copyright by copying a song from her latest CD and posting it on the
4929 Web, you can be punished
4930
4931 with a $150,000 fine. The fine is an ex post punishment for violating
4932 an ex ante rule. It is imposed by the state.
4933 <a class="indexterm" name="idp40418288"></a>
4934 </p><a class="indexterm" name="idp40419168"></a><p>
4935 Norms are a different kind of constraint. They, too, punish an
4936 individual for violating a rule. But the punishment of a norm is
4937 imposed by a community, not (or not only) by the state. There may be
4938 no law against spitting, but that doesn't mean you won't be punished
4939 if you spit on the ground while standing in line at a movie. The
4940 punishment might not be harsh, though depending upon the community, it
4941 could easily be more harsh than many of the punishments imposed by the
4942 state. The mark of the difference is not the severity of the rule, but
4943 the source of the enforcement.
4944 </p><a class="indexterm" name="idxmarketconstraints"></a><p>
4945 The market is a third type of constraint. Its constraint is effected
4946 through conditions: You can do X if you pay Y; you'll be paid M if you
4947 do N. These constraints are obviously not independent of law or
4948 norms&#8212;it is property law that defines what must be bought if it
4949 is to be taken legally; it is norms that say what is appropriately
4950 sold. But given a set of norms, and a background of property and
4951 contract law, the market imposes a simultaneous constraint upon how an
4952 individual or group might behave.
4953 </p><a class="indexterm" name="idp40422768"></a><p>
4954 Finally, and for the moment, perhaps, most mysteriously,
4955 <span class="quote">«<span class="quote">architecture</span>»</span>&#8212;the physical world as one finds it&#8212;is a
4956 constraint on behavior.  A fallen bridge might constrain your ability
4957 to get across a river. Railroad tracks might constrain the ability of
4958 a community to integrate its social life. As with the market,
4959 architecture does not effect its constraint through ex post
4960 punishments. Instead, also as with the market, architecture effects
4961 its constraint through simultaneous conditions. These conditions are
4962 imposed not by courts enforcing contracts, or by police punishing
4963 theft, but by nature, by <span class="quote">«<span class="quote">architecture.</span>»</span>  If a 500-pound boulder
4964 blocks your way, it is the law of gravity that enforces this
4965 constraint. If a $500 airplane ticket stands between you and a flight
4966 to New York, it is the market that enforces this constraint.
4967 </p><a class="indexterm" name="idp40426400"></a><a class="indexterm" name="idp40427728"></a><a class="indexterm" name="idp40429056"></a><a class="indexterm" name="idxlawasconstraintmodality2"></a><p>
4968
4969
4970 So the first point about these four modalities of regulation is
4971 obvious: They interact. Restrictions imposed by one might be
4972 reinforced by another. Or restrictions imposed by one might be
4973 undermined by another.
4974 </p><p>
4975 The second point follows directly: If we want to understand the
4976 effective freedom that anyone has at a given moment to do any
4977 particular thing, we have to consider how these four modalities
4978 interact.  Whether or not there are other constraints (there may well
4979 be; my claim is not about comprehensiveness), these four are among the
4980 most significant, and any regulator (whether controlling or freeing)
4981 must consider how these four in particular interact.
4982 </p><a class="indexterm" name="idp40433840"></a><a class="indexterm" name="idp40434656"></a><a class="indexterm" name="idp40435472"></a><a class="indexterm" name="idxdrivingspeedconstraintson"></a><a class="indexterm" name="idxspeedingconstraintson"></a><p>
4983 So, for example, consider the <span class="quote">«<span class="quote">freedom</span>»</span> to drive a car at a high
4984 speed. That freedom is in part restricted by laws: speed limits that
4985 say how fast you can drive in particular places at particular
4986 times. It is in part restricted by architecture: speed bumps, for
4987 example, slow most rational drivers; governors in buses, as another
4988 example, set the maximum rate at which the driver can drive. The
4989 freedom is in part restricted by the market: Fuel efficiency drops as
4990 speed increases, thus the price of gasoline indirectly constrains
4991 speed. And finally, the norms of a community may or may not constrain
4992 the freedom to speed. Drive at 50 mph by a school in your own
4993 neighborhood and you're likely to be punished by the neighbors. The
4994 same norm wouldn't be as effective in a different town, or at night.
4995 </p><p>
4996 The final point about this simple model should also be fairly clear:
4997 While these four modalities are analytically independent, law has a
4998 special role in affecting the three.<a href="#ftn.idp40441408" class="footnote" name="idp40441408"><sup class="footnote">[120]</sup></a>
4999 The law, in other words, sometimes operates to increase or decrease
5000 the constraint of a particular modality.  Thus, the law might be used
5001 to increase taxes on gasoline, so as to increase the incentives to
5002 drive more slowly. The law might be used to mandate more speed bumps,
5003 so as to increase the difficulty of driving rapidly. The law might be
5004 used to fund ads that stigmatize reckless driving. Or the law might be
5005 used to require that other laws be more
5006
5007 strict&#8212;a federal requirement that states decrease the speed
5008 limit, for example&#8212;so as to decrease the attractiveness of fast
5009 driving.
5010 </p><a class="indexterm" name="idp40445920"></a><a class="indexterm" name="idp40447184"></a><div class="figure"><a name="fig-1361"></a><p class="title"><b>Figure 10.2. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="45%"><tr><td align="center"><img src="images/1361.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp40450912"></a><p>
5011 These constraints can thus change, and they can be changed. To
5012 understand the effective protection of liberty or protection of
5013 property at any particular moment, we must track these changes over
5014 time. A restriction imposed by one modality might be erased by
5015 another. A freedom enabled by one modality might be displaced by
5016 another.<a href="#ftn.idp40452368" class="footnote" name="idp40452368"><sup class="footnote">[121]</sup></a>
5017 </p><a class="indexterm" name="idp40461936"></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>
5018 The most obvious point that this model reveals is just why, or just
5019 how, Hollywood is right. The copyright warriors have rallied Congress
5020 and the courts to defend copyright. This model helps us see why that
5021 rallying makes sense.
5022 </p><p>
5023 Let's say this is the picture of copyright's regulation before the
5024 Internet:
5025 </p><div class="figure"><a name="fig-1371"></a><p class="title"><b>Figure 10.3. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="45%"><tr><td align="center"><img src="images/1331.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idxarchitectureconstrainteffectedthrough"></a><a class="indexterm" name="idp40471296"></a><a class="indexterm" name="idxnormsregulatoryinfluenceof2"></a><p>
5026
5027 There is balance between law, norms, market, and architecture. The law
5028 limits the ability to copy and share content, by imposing penalties on
5029 those who copy and share content. Those penalties are reinforced by
5030 technologies that make it hard to copy and share content
5031 (architecture) and expensive to copy and share content
5032 (market). Finally, those penalties are mitigated by norms we all
5033 recognize&#8212;kids, for example, taping other kids' records. These
5034 uses of copyrighted material may well be infringement, but the norms
5035 of our society (before the Internet, at least) had no problem with
5036 this form of infringement.
5037 </p><a class="indexterm" name="idxinternetcopyrightregulatorybalancelostwith"></a><a class="indexterm" name="idp40477264"></a><a class="indexterm" name="idp40478400"></a><a class="indexterm" name="idp40479216"></a><p>
5038 Enter the Internet, or, more precisely, technologies such as MP3s and
5039 p2p sharing. Now the constraint of architecture changes dramatically,
5040 as does the constraint of the market. And as both the market and
5041 architecture relax the regulation of copyright, norms pile on. The
5042 happy balance (for the warriors, at least) of life before the Internet
5043 becomes an effective state of anarchy after the Internet.
5044 </p><a class="indexterm" name="idp40480832"></a><a class="indexterm" name="idp40482144"></a><a class="indexterm" name="idp40483472"></a><p>
5045 Thus the sense of, and justification for, the warriors' response.
5046 Technology has changed, the warriors say, and the effect of this
5047 change, when ramified through the market and norms, is that a balance
5048 of protection for the copyright owners' rights has been lost. This is
5049 Iraq
5050
5051 after the fall of Saddam, but this time no government is justifying the
5052 looting that results.
5053 </p><div class="figure"><a name="fig-1381"></a><p class="title"><b>Figure 10.4. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="45%"><tr><td align="center"><img src="images/1381.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp40487936"></a><a class="indexterm" name="idxregulationasestablishmentprotectionism"></a><p>
5054 Neither this analysis nor the conclusions that follow are new to the
5055 warriors. Indeed, in a <span class="quote">«<span class="quote">White Paper</span>»</span> prepared by the Commerce
5056 Department (one heavily influenced by the copyright warriors) in 1995,
5057 this mix of regulatory modalities had already been identified and the
5058 strategy to respond already mapped. In response to the changes the
5059 Internet had effected, the White Paper argued (1) Congress should
5060 strengthen intellectual property law, (2) businesses should adopt
5061 innovative marketing techniques, (3) technologists should push to
5062 develop code to protect copyrighted material, and (4) educators should
5063 educate kids to better protect copyright.
5064 </p><a class="indexterm" name="idp40492240"></a><a class="indexterm" name="idp40493616"></a><a class="indexterm" name="idp40494944"></a><a class="indexterm" name="idp40495760"></a><p>
5065 This mixed strategy is just what copyright needed&#8212;if it was to
5066 preserve the particular balance that existed before the change induced
5067 by the Internet. And it's just what we should expect the content
5068 industry to push for. It is as American as apple pie to consider the
5069 happy life you have as an entitlement, and to look to the law to
5070 protect it if something comes along to change that happy
5071 life. Homeowners living in a
5072
5073
5074 flood plain have no hesitation appealing to the government to rebuild
5075 (and rebuild again) when a flood (architecture) wipes away their
5076 property (law). Farmers have no hesitation appealing to the government
5077 to bail them out when a virus (architecture) devastates their
5078 crop. Unions have no hesitation appealing to the government to bail
5079 them out when imports (market) wipe out the U.S. steel industry.
5080 </p><a class="indexterm" name="idp40498128"></a><a class="indexterm" name="idp40499376"></a><a class="indexterm" name="idp40500768"></a><p>
5081 Thus, there's nothing wrong or surprising in the content industry's
5082 campaign to protect itself from the harmful consequences of a
5083 technological innovation. And I would be the last person to argue that
5084 the changing technology of the Internet has not had a profound effect
5085 on the content industry's way of doing business, or as John Seely
5086 Brown describes it, its <span class="quote">«<span class="quote">architecture of revenue.</span>»</span>
5087 </p><a class="indexterm" name="idp40502784"></a><a class="indexterm" name="idp40503600"></a><a class="indexterm" name="idp40504704"></a><a class="indexterm" name="idp40505520"></a><a class="indexterm" name="idp40506336"></a><a class="indexterm" name="idp40507152"></a><a class="indexterm" name="idp40507968"></a><a class="indexterm" name="idp40508784"></a><p>
5088 But just because a particular interest asks for government support, it
5089 doesn't follow that support should be granted. And just because
5090 technology has weakened a particular way of doing business, it doesn't
5091 follow that the government should intervene to support that old way of
5092 doing business. Kodak, for example, has lost perhaps as much as 20
5093 percent of their traditional film market to the emerging technologies
5094 of digital cameras.<a href="#ftn.idp40510304" class="footnote" name="idp40510304"><sup class="footnote">[122]</sup></a>
5095
5096 Does anyone believe the government should ban digital cameras just to
5097 support Kodak? Highways have weakened the freight business for
5098 railroads. Does anyone think we should ban trucks from roads
5099 <span class="emphasis"><em>for the purpose of</em></span> protecting the railroads?
5100 Closer to the subject of this book, remote channel changers have
5101 weakened the <span class="quote">«<span class="quote">stickiness</span>»</span> of television advertising (if a boring
5102 commercial comes on the TV, the remote makes it easy to surf), and it
5103 may well be that this change has weakened the television advertising
5104 market. But does anyone believe we should regulate remotes to
5105 reinforce commercial television?  (Maybe by limiting them to function
5106 only once a second, or to switch to only ten channels within an hour?)
5107 </p><a class="indexterm" name="idxfreemarkettechnologicalchangesin"></a><a class="indexterm" name="idp40516880"></a><a class="indexterm" name="idp40517696"></a><a class="indexterm" name="idp40518512"></a><a class="indexterm" name="idp40519616"></a><a class="indexterm" name="idp40520432"></a><a class="indexterm" name="idp40521248"></a><p>
5108 The obvious answer to these obviously rhetorical questions is no.
5109 In a free society, with a free market, supported by free enterprise and
5110 free trade, the government's role is not to support one way of doing
5111
5112 business against others. Its role is not to pick winners and protect
5113 them against loss. If the government did this generally, then we would
5114 never have any progress. As Microsoft chairman Bill Gates wrote in
5115 1991, in a memo criticizing software patents, <span class="quote">«<span class="quote">established companies
5116 have an interest in excluding future competitors.</span>»</span><a href="#ftn.idp40523440" class="footnote" name="idp40523440"><sup class="footnote">[123]</sup></a>
5117 And relative to a
5118 startup, established companies also have the means. (Think RCA and
5119 FM radio.) A world in which competitors with new ideas must fight
5120 not only the market but also the government is a world in which
5121 competitors with new ideas will not succeed. It is a world of stasis and
5122 increasingly concentrated stagnation. It is the Soviet Union under
5123 Brezhnev.
5124 </p><p>
5125 Thus, while it is understandable for industries threatened with new
5126 technologies that change the way they do business to look to the
5127 government for protection, it is the special duty of policy makers to
5128 guarantee that that protection not become a deterrent to progress. It
5129 is the duty of policy makers, in other words, to assure that the
5130 changes they create, in response to the request of those hurt by
5131 changing technology, are changes that preserve the incentives and
5132 opportunities for innovation and change.
5133 </p><a class="indexterm" name="idp40526192"></a><a class="indexterm" name="idp40527264"></a><a class="indexterm" name="idp40528080"></a><p>
5134 In the context of laws regulating speech&#8212;which include,
5135 obviously, copyright law&#8212;that duty is even stronger. When the
5136 industry complaining about changing technologies is asking Congress to
5137 respond in a way that burdens speech and creativity, policy makers
5138 should be especially wary of the request. It is always a bad deal for
5139 the government to get into the business of regulating speech
5140 markets. The risks and dangers of that game are precisely why our
5141 framers created the First Amendment to our Constitution: <span class="quote">«<span class="quote">Congress
5142 shall make no law &#8230;  abridging the freedom of speech.</span>»</span> So when
5143 Congress is being asked to pass laws that would <span class="quote">«<span class="quote">abridge</span>»</span> the freedom
5144 of speech, it should ask&#8212; carefully&#8212;whether such
5145 regulation is justified.
5146 </p><a class="indexterm" name="idp40531328"></a><a class="indexterm" name="idp40532560"></a><p>
5147 My argument just now, however, has nothing to do with whether
5148
5149 the changes that are being pushed by the copyright warriors are
5150 <span class="quote">«<span class="quote">justified.</span>»</span>  My argument is about their effect. For before we get to
5151 the question of justification, a hard question that depends a great
5152 deal upon your values, we should first ask whether we understand the
5153 effect of the changes the content industry wants.
5154 </p><p>
5155 Here's the metaphor that will capture the argument to follow.
5156 </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>
5157 In 1873, the chemical DDT was first synthesized. In 1948, Swiss
5158 chemist Paul Hermann Müller won the Nobel Prize for his work
5159 demonstrating the insecticidal properties of DDT. By the 1950s, the
5160 insecticide was widely used around the world to kill disease-carrying
5161 pests. It was also used to increase farm production.
5162 </p><p>
5163 No one doubts that killing disease-carrying pests or increasing crop
5164 production is a good thing. No one doubts that the work of Müller was
5165 important and valuable and probably saved lives, possibly millions.
5166 </p><a class="indexterm" name="idp40543872"></a><a class="indexterm" name="idp40544688"></a><a class="indexterm" name="idxenvironmentalism"></a><p>
5167 But in 1962, Rachel Carson published <em class="citetitle">Silent Spring</em>, which argued that
5168 DDT, whatever its primary benefits, was also having unintended
5169 environmental consequences. Birds were losing the ability to
5170 reproduce.  Whole chains of the ecology were being destroyed.
5171 </p><p>
5172 No one set out to destroy the environment. Paul Müller certainly did
5173 not aim to harm any birds. But the effort to solve one set of problems
5174 produced another set which, in the view of some, was far worse than
5175 the problems that were originally attacked. Or more accurately, the
5176 problems DDT caused were worse than the problems it solved, at least
5177 when considering the other, more environmentally friendly ways to
5178 solve the problems that DDT was meant to solve.
5179 </p><a class="indexterm" name="idp40549248"></a><a class="indexterm" name="idp40550496"></a><a class="indexterm" name="idxcopyrightlawinnovativefreedombalancedwithfaircompensationin2"></a><p>
5180 It is to this image precisely that Duke University law professor James
5181 Boyle appeals when he argues that we need an <span class="quote">«<span class="quote">environmentalism</span>»</span> for
5182 culture.<a href="#ftn.idp40554144" class="footnote" name="idp40554144"><sup class="footnote">[124]</sup></a>
5183 His point, and the point I want to develop in the balance of this
5184 chapter, is not that the aims of copyright are flawed. Or that authors
5185 should not be paid for their work. Or that music should be given away
5186 <span class="quote">«<span class="quote">for free.</span>»</span> The point is that some of the ways in which we might
5187 protect authors will have unintended consequences for the cultural
5188 environment, much like DDT had for the natural environment. And just
5189
5190 as criticism of DDT is not an endorsement of malaria or an attack on
5191 farmers, so, too, is criticism of one particular set of regulations
5192 protecting copyright not an endorsement of anarchy or an attack on
5193 authors.  It is an environment of creativity that we seek, and we
5194 should be aware of our actions' effects on the environment.
5195 </p><a class="indexterm" name="idp40557504"></a><p>
5196 My argument, in the balance of this chapter, tries to map exactly
5197 this effect. No doubt the technology of the Internet has had a dramatic
5198 effect on the ability of copyright owners to protect their content. But
5199 there should also be little doubt that when you add together the
5200 changes in copyright law over time, plus the change in technology that
5201 the Internet is undergoing just now, the net effect of these changes will
5202 not be only that copyrighted work is effectively protected. Also, and
5203 generally missed, the net effect of this massive increase in protection
5204 will be devastating to the environment for creativity.
5205 </p><a class="indexterm" name="idp40559808"></a><p>
5206 In a line: To kill a gnat, we are spraying DDT with consequences
5207 for free culture that will be far more devastating than that this gnat will
5208 be lost.
5209 </p><a class="indexterm" name="idp40561776"></a><a class="indexterm" name="idp40563088"></a><a class="indexterm" name="idp40564528"></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="idp40566928"></a><a class="indexterm" name="idxconstitutionuscopyrightpurposeestablishedin"></a><a class="indexterm" name="idxconstitutionusprogressclauseof"></a><a class="indexterm" name="idp40571904"></a><a class="indexterm" name="idp40572976"></a><a class="indexterm" name="idxcreativepropertyconstitutionaltraditionon2"></a><a class="indexterm" name="idxprogressclause"></a><a class="indexterm" name="idp40577584"></a><p>
5210 America copied English copyright law. Actually, we copied and improved
5211 English copyright law. Our Constitution makes the purpose of <span class="quote">«<span class="quote">creative
5212 property</span>»</span> rights clear; its express limitations reinforce the English
5213 aim to avoid overly powerful publishers.
5214 </p><a class="indexterm" name="idxcongressusinconstitutionalprogressclause"></a><p>
5215 The power to establish <span class="quote">«<span class="quote">creative property</span>»</span> rights is granted to
5216 Congress in a way that, for our Constitution, at least, is very
5217 odd. Article I, section 8, clause 8 of our Constitution states that:
5218 </p><div class="blockquote"><blockquote class="blockquote"><p>
5219 Congress has the power to promote the Progress of Science and
5220 useful Arts, by securing for limited Times to Authors and Inventors
5221 the exclusive Right to their respective Writings and Discoveries.
5222 </p></blockquote></div><p>
5223 We can call this the <span class="quote">«<span class="quote">Progress Clause,</span>»</span> for notice what this clause
5224 does not say. It does not say Congress has the power to grant
5225 <span class="quote">«<span class="quote">creative property rights.</span>»</span> It says that Congress has the power
5226 <span class="emphasis"><em>to promote progress</em></span>. The grant of power is its
5227 purpose, and its purpose is a public one, not the purpose of enriching
5228 publishers, nor even primarily the purpose of rewarding authors.
5229 </p><a class="indexterm" name="idp40586016"></a><a class="indexterm" name="idxcopyrightlawasprotectionofcreators"></a><a class="indexterm" name="idxcopyrightlawhistoryofamerican"></a><p>
5230 The Progress Clause expressly limits the term of copyrights. As we saw
5231 in chapter <a class="xref" href="#founders" title="Chapter 6. Chapter Six: Founders">6</a>,
5232 the English limited the term of copyright so as to assure that a few
5233 would not exercise disproportionate control over culture by exercising
5234 disproportionate control over publishing. We can assume the framers
5235 followed the English for a similar purpose. Indeed, unlike the
5236 English, the framers reinforced that objective, by requiring that
5237 copyrights extend <span class="quote">«<span class="quote">to Authors</span>»</span> only.
5238 </p><a class="indexterm" name="idp40593216"></a><a class="indexterm" name="idp40594032"></a><a class="indexterm" name="idp40595152"></a><p>
5239 The design of the Progress Clause reflects something about the
5240 Constitution's design in general. To avoid a problem, the framers
5241 built structure. To prevent the concentrated power of publishers, they
5242 built a structure that kept copyrights away from publishers and kept
5243 them short. To prevent the concentrated power of a church, they banned
5244 the federal government from establishing a church. To prevent
5245 concentrating power in the federal government, they built structures
5246 to reinforce the power of the states&#8212;including the Senate, whose
5247 members were at the time selected by the states, and an electoral
5248 college, also selected by the states, to select the president. In each
5249 case, a <span class="emphasis"><em>structure</em></span> built checks and balances into
5250 the constitutional frame, structured to prevent otherwise inevitable
5251 concentrations of power.
5252 </p><a class="indexterm" name="idp40597696"></a><a class="indexterm" name="idp40598944"></a><p>
5253 I doubt the framers would recognize the regulation we call <span class="quote">«<span class="quote">copyright</span>»</span>
5254 today. The scope of that regulation is far beyond anything they ever
5255 considered. To begin to understand what they did, we need to put our
5256 <span class="quote">«<span class="quote">copyright</span>»</span> in context: We need to see how it has changed in the 210
5257 years since they first struck its design.
5258 </p><a class="indexterm" name="idp40601696"></a><a class="indexterm" name="idp40603136"></a><a class="indexterm" name="idp40604512"></a><a class="indexterm" name="idp40605840"></a><p>
5259 Some of these changes come from the law: some in light of changes
5260 in technology, and some in light of changes in technology given a
5261
5262 particular concentration of market power. In terms of our model, we
5263 started here:
5264 </p><div class="figure"><a name="fig-1441"></a><p class="title"><b>Figure 10.5. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="45%"><tr><td align="center"><img src="images/1331.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5265 We will end here:
5266 </p><div class="figure"><a name="fig-1442"></a><p class="title"><b>Figure 10.6. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="45%"><tr><td align="center"><img src="images/1442.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5267 Let me explain how.
5268
5269 </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="idp40620336"></a><a class="indexterm" name="idxpublicdomainbalanceofuscontentin"></a><p>
5270 When the first Congress enacted laws to protect creative property, it
5271 faced the same uncertainty about the status of creative property that
5272 the English had confronted in 1774. Many states had passed laws
5273 protecting creative property, and some believed that these laws simply
5274 supplemented common law rights that already protected creative
5275 authorship.<a href="#ftn.idp40623936" class="footnote" name="idp40623936"><sup class="footnote">[125]</sup></a>
5276 This meant that there was no guaranteed public domain in the United
5277 States in 1790. If copyrights were protected by the common law, then
5278 there was no simple way to know whether a work published in the United
5279 States was controlled or free. Just as in England, this lingering
5280 uncertainty would make it hard for publishers to rely upon a public
5281 domain to reprint and distribute works.
5282 </p><a class="indexterm" name="idp40628096"></a><a class="indexterm" name="idxlawfederalvsstate"></a><p>
5283 That uncertainty ended after Congress passed legislation granting
5284 copyrights. Because federal law overrides any contrary state law,
5285 federal protections for copyrighted works displaced any state law
5286 protections.  Just as in England the Statute of Anne eventually meant
5287 that the copyrights for all English works expired, a federal statute
5288 meant that any state copyrights expired as well.
5289 </p><a class="indexterm" name="idxcopyrightrenewabilityof"></a><p>
5290 In 1790, Congress enacted the first copyright law. It created a
5291 federal copyright and secured that copyright for fourteen years. If
5292 the author was alive at the end of that fourteen years, then he could
5293 opt to renew the copyright for another fourteen years. If he did not
5294 renew the copyright, his work passed into the public domain.
5295 </p><a class="indexterm" name="idp40634192"></a><p>
5296 While there were many works created in the United States in the first
5297 ten years of the Republic, only 5 percent of the works were actually
5298 registered under the federal copyright regime. Of all the work created
5299 in the United States both before 1790 and from 1790 through 1800, 95
5300 percent immediately passed into the public domain; the balance would
5301 pass into the pubic domain within twenty-eight years at most, and more
5302 likely within fourteen years.<a href="#ftn.idp40636192" class="footnote" name="idp40636192"><sup class="footnote">[126]</sup></a>
5303 </p><a class="indexterm" name="idp40640368"></a><a class="indexterm" name="idp40641648"></a><p>
5304 This system of renewal was a crucial part of the American system
5305 of copyright. It assured that the maximum terms of copyright would be
5306
5307 granted only for works where they were wanted. After the initial term
5308 of fourteen years, if it wasn't worth it to an author to renew his
5309 copyright, then it wasn't worth it to society to insist on the
5310 copyright, either.
5311 </p><p>
5312 Fourteen years may not seem long to us, but for the vast majority of
5313 copyright owners at that time, it was long enough: Only a small
5314 minority of them renewed their copyright after fourteen years; the
5315 balance allowed their work to pass into the public
5316 domain.<a href="#ftn.idp40644592" class="footnote" name="idp40644592"><sup class="footnote">[127]</sup></a>
5317 </p><a class="indexterm" name="idp40647760"></a><a class="indexterm" name="idp40649024"></a><a class="indexterm" name="idp40650128"></a><p>
5318 Even today, this structure would make sense. Most creative work
5319 has an actual commercial life of just a couple of years. Most books fall
5320 out of print after one year.<a href="#ftn.idp40651664" class="footnote" name="idp40651664"><sup class="footnote">[128]</sup></a> When that happens, the
5321 used books are traded free of copyright regulation. Thus the books are
5322 no longer <span class="emphasis"><em>effectively</em></span> controlled by
5323 copyright. The only practical commercial use of the books at that time
5324 is to sell the books as used books; that use&#8212;because it does not
5325 involve publication&#8212;is effectively free.
5326 </p><a class="indexterm" name="idxcongressusoncopyrightlaws6"></a><a class="indexterm" name="idxcongressuscopyrighttermsextendedby"></a><a class="indexterm" name="idxcopyrightlawtermextensionsin"></a><p>
5327 In the first hundred years of the Republic, the term of copyright was
5328 changed once. In 1831, the term was increased from a maximum of 28
5329 years to a maximum of 42 by increasing the initial term of copyright
5330 from 14 years to 28 years. In the next fifty years of the Republic,
5331 the term increased once again. In 1909, Congress extended the renewal
5332 term of 14 years to 28 years, setting a maximum term of 56 years.
5333 </p><a class="indexterm" name="idp40659936"></a><a class="indexterm" name="idxsonnybonocopyrighttermextensionactctea"></a><a class="indexterm" name="idxpublicdomainfuturepatentsvsfuturecopyrightsin"></a><p>
5334 Then, beginning in 1962, Congress started a practice that has defined
5335 copyright law since. Eleven times in the last forty years, Congress
5336 has extended the terms of existing copyrights; twice in those forty
5337 years, Congress extended the term of future copyrights. Initially, the
5338 extensions of existing copyrights were short, a mere one to two years.
5339 In 1976, Congress extended all existing copyrights by nineteen years.
5340 And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress
5341 extended the term of existing and future copyrights by twenty years.
5342 </p><a class="indexterm" name="idp40665520"></a><p>
5343 The effect of these extensions is simply to toll, or delay, the passing
5344 of works into the public domain. This latest extension means that the
5345 public domain will have been tolled for thirty-nine out of fifty-five
5346 years, or 70 percent of the time since 1962. Thus, in the twenty years
5347
5348
5349 after the Sonny Bono Act, while one million patents will pass into the
5350 public domain, zero copyrights will pass into the public domain by virtue
5351 of the expiration of a copyright term.
5352 </p><a class="indexterm" name="idp40667840"></a><p>
5353 The effect of these extensions has been exacerbated by another,
5354 little-noticed change in the copyright law. Remember I said that the
5355 framers established a two-part copyright regime, requiring a copyright
5356 owner to renew his copyright after an initial term. The requirement of
5357 renewal meant that works that no longer needed copyright protection
5358 would pass more quickly into the public domain. The works remaining
5359 under protection would be those that had some continuing commercial
5360 value.
5361 </p><a class="indexterm" name="idp40670624"></a><a class="indexterm" name="idp40671408"></a><a class="indexterm" name="idp40672528"></a><p>
5362 The United States abandoned this sensible system in 1976. For
5363 all works created after 1978, there was only one copyright term&#8212;the
5364 maximum term. For <span class="quote">«<span class="quote">natural</span>»</span> authors, that term was life plus fifty
5365 years. For corporations, the term was seventy-five years. Then, in 1992,
5366 Congress abandoned the renewal requirement for all works created
5367 before 1978. All works still under copyright would be accorded the
5368 maximum term then available. After the Sonny Bono Act, that term
5369 was ninety-five years.
5370 </p><p>
5371 This change meant that American law no longer had an automatic way to
5372 assure that works that were no longer exploited passed into the public
5373 domain. And indeed, after these changes, it is unclear whether it is
5374 even possible to put works into the public domain. The public domain
5375 is orphaned by these changes in copyright law. Despite the requirement
5376 that terms be <span class="quote">«<span class="quote">limited,</span>»</span> we have no evidence that anything will limit
5377 them.
5378 </p><a class="indexterm" name="idp40676208"></a><a class="indexterm" name="idp40677600"></a><p>
5379 The effect of these changes on the average duration of copyright is
5380 dramatic. In 1973, more than 85 percent of copyright owners failed to
5381 renew their copyright. That meant that the average term of copyright
5382 in 1973 was just 32.2 years. Because of the elimination of the renewal
5383 requirement, the average term of copyright is now the maximum term.
5384 In thirty years, then, the average term has tripled, from 32.2 years to 95
5385 years.<a href="#ftn.idp40679696" class="footnote" name="idp40679696"><sup class="footnote">[129]</sup></a>
5386 </p><a class="indexterm" name="idp40681360"></a><a class="indexterm" name="idp40682608"></a><a class="indexterm" name="idp40684000"></a><a class="indexterm" name="idp40685344"></a><a class="indexterm" name="idp40686624"></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>
5387 The <span class="quote">«<span class="quote">scope</span>»</span> of a copyright is the range of rights granted by the law.
5388 The scope of American copyright has changed dramatically. Those
5389 changes are not necessarily bad. But we should understand the extent
5390 of the changes if we're to keep this debate in context.
5391 </p><a class="indexterm" name="idp40692304"></a><a class="indexterm" name="idxderivativeworkshistoricalshiftincopyrightcoverageof"></a><p>
5392 In 1790, that scope was very narrow. Copyright covered only <span class="quote">«<span class="quote">maps,
5393 charts, and books.</span>»</span> That means it didn't cover, for example, music or
5394 architecture. More significantly, the right granted by a copyright gave
5395 the author the exclusive right to <span class="quote">«<span class="quote">publish</span>»</span> copyrighted works. That
5396 means someone else violated the copyright only if he republished the
5397 work without the copyright owner's permission. Finally, the right granted
5398 by a copyright was an exclusive right to that particular book. The right
5399 did not extend to what lawyers call <span class="quote">«<span class="quote">derivative works.</span>»</span> It would not,
5400 therefore, interfere with the right of someone other than the author to
5401 translate a copyrighted book, or to adapt the story to a different form
5402 (such as a drama based on a published book).
5403 </p><p>
5404 This, too, has changed dramatically. While the contours of copyright
5405 today are extremely hard to describe simply, in general terms, the
5406 right covers practically any creative work that is reduced to a
5407 tangible form. It covers music as well as architecture, drama as well
5408 as computer programs. It gives the copyright owner of that creative
5409 work not only the exclusive right to <span class="quote">«<span class="quote">publish</span>»</span> the work, but also the
5410 exclusive right of control over any <span class="quote">«<span class="quote">copies</span>»</span> of that work. And most
5411 significant for our purposes here, the right gives the copyright owner
5412 control over not only his or her particular work, but also any
5413 <span class="quote">«<span class="quote">derivative work</span>»</span> that might grow out of the original work. In this
5414 way, the right covers more creative work, protects the creative work
5415 more broadly, and protects works that are based in a significant way
5416 on the initial creative work.
5417 </p><a class="indexterm" name="idxcopyrightmarkingof"></a><a class="indexterm" name="idxformalities"></a><a class="indexterm" name="idxcopyrightlawregistrationrequirementof"></a><p>
5418 At the same time that the scope of copyright has expanded, procedural
5419 limitations on the right have been relaxed. I've already described the
5420 complete removal of the renewal requirement in 1992. In addition
5421
5422 to the renewal requirement, for most of the history of American
5423 copyright law, there was a requirement that a work be registered
5424 before it could receive the protection of a copyright. There was also
5425 a requirement that any copyrighted work be marked either with that
5426 famous © or the word <span class="emphasis"><em>copyright</em></span>. And for most
5427 of the history of American copyright law, there was a requirement that
5428 works be deposited with the government before a copyright could be
5429 secured.
5430 </p><a class="indexterm" name="idp40707600"></a><p>
5431 The reason for the registration requirement was the sensible
5432 understanding that for most works, no copyright was required. Again,
5433 in the first ten years of the Republic, 95 percent of works eligible
5434 for copyright were never copyrighted. Thus, the rule reflected the
5435 norm: Most works apparently didn't need copyright, so registration
5436 narrowed the regulation of the law to the few that did. The same
5437 reasoning justified the requirement that a work be marked as
5438 copyrighted&#8212;that way it was easy to know whether a copyright was
5439 being claimed. The requirement that works be deposited was to assure
5440 that after the copyright expired, there would be a copy of the work
5441 somewhere so that it could be copied by others without locating the
5442 original author.
5443 </p><a class="indexterm" name="idp40709376"></a><p>
5444 All of these <span class="quote">«<span class="quote">formalities</span>»</span> were abolished in the American system when
5445 we decided to follow European copyright law. There is no requirement
5446 that you register a work to get a copyright; the copyright now is
5447 automatic; the copyright exists whether or not you mark your work with
5448 a ©; and the copyright exists whether or not you actually make a
5449 copy available for others to copy.
5450 </p><a class="indexterm" name="idp40712592"></a><a class="indexterm" name="idp40714240"></a><a class="indexterm" name="idp40715488"></a><p>
5451 Consider a practical example to understand the scope of these
5452 differences.
5453 </p><a class="indexterm" name="idxcopyrightact2"></a><p>
5454 If, in 1790, you wrote a book and you were one of the 5 percent who
5455 actually copyrighted that book, then the copyright law protected you
5456 against another publisher's taking your book and republishing it
5457 without your permission. The aim of the act was to regulate publishers
5458 so as to prevent that kind of unfair competition. In 1790, there were
5459 174 publishers in the United States.<a href="#ftn.idp40719408" class="footnote" name="idp40719408"><sup class="footnote">[130]</sup></a>
5460 The Copyright Act was thus a tiny
5461 regulation of a tiny proportion of a tiny part of the creative market in
5462 the United States&#8212;publishers.
5463 </p><a class="indexterm" name="idxcopyrightlawonrepublishingvstransformationoforiginalwork2"></a><a class="indexterm" name="idxderivativeworkspiracyvs3"></a><a class="indexterm" name="idxpiracyderivativeworkvs3"></a><p>
5464
5465 The act left other creators totally unregulated. If I copied your poem
5466 by hand, over and over again, as a way to learn it by heart, my act
5467 was totally unregulated by the 1790 act. If I took your novel and made
5468 a play based upon it, or if I translated it or abridged it, none of
5469 those activities were regulated by the original copyright act. These
5470 creative activities remained free, while the activities of publishers
5471 were restrained.
5472 </p><a class="indexterm" name="idp40728448"></a><p>
5473 Today the story is very different: If you write a book, your book is
5474 automatically protected. Indeed, not just your book. Every e-mail,
5475 every note to your spouse, every doodle, <span class="emphasis"><em>every</em></span>
5476 creative act that's reduced to a tangible form&#8212;all of this is
5477 automatically copyrighted.  There is no need to register or mark your
5478 work. The protection follows the creation, not the steps you take to
5479 protect it.
5480 </p><p>
5481 That protection gives you the right (subject to a narrow range of
5482 fair use exceptions) to control how others copy the work, whether they
5483 copy it to republish it or to share an excerpt.
5484 </p><p>
5485 That much is the obvious part. Any system of copyright would
5486                 control
5487 competing publishing. But there's a second part to the copyright of
5488 today that is not at all obvious. This is the protection of <span class="quote">«<span class="quote">derivative
5489 rights.</span>»</span> If you write a book, no one can make a movie out of your
5490 book without permission. No one can translate it without permission.
5491 CliffsNotes can't make an abridgment unless permission is granted. All
5492 of these derivative uses of your original work are controlled by the
5493 copyright holder. The copyright, in other words, is now not just an
5494                 exclusive
5495 right to your writings, but an exclusive right to your writings
5496 and a large proportion of the writings inspired by them.
5497 </p><a class="indexterm" name="idp40733008"></a><p>
5498 It is this derivative right that would seem most bizarre to our
5499 framers, though it has become second nature to us. Initially, this
5500                 expansion
5501 was created to deal with obvious evasions of a narrower
5502                 copyright.
5503 If I write a book, can you change one word and then claim a
5504 copyright in a new and different book? Obviously that would make a
5505 joke of the copyright, so the law was properly expanded to include
5506 those slight modifications as well as the verbatim original work.
5507 </p><p>
5508
5509 In preventing that joke, the law created an astonishing power
5510 within a free culture&#8212;at least, it's astonishing when you
5511 understand that the law applies not just to the commercial publisher
5512 but to anyone with a computer. I understand the wrong in duplicating
5513 and selling someone else's work. But whatever
5514 <span class="emphasis"><em>that</em></span> wrong is, transforming someone else's work
5515 is a different wrong. Some view transformation as no wrong at
5516 all&#8212;they believe that our law, as the framers penned it, should
5517 not protect derivative rights at all.<a href="#ftn.idp40736528" class="footnote" name="idp40736528"><sup class="footnote">[131]</sup></a>
5518 Whether or not you go that far, it seems
5519 plain that whatever wrong is involved is fundamentally different from
5520 the wrong of direct piracy.
5521 </p><p>
5522 Yet copyright law treats these two different wrongs in the same way. I
5523 can go to court and get an injunction against your pirating my book. I
5524 can go to court and get an injunction against your transformative use
5525 of my book.<a href="#ftn.idp40740752" class="footnote" name="idp40740752"><sup class="footnote">[132]</sup></a>
5526 These two different uses of my creative work are treated the same.
5527 </p><a class="indexterm" name="idp40744080"></a><a class="indexterm" name="idp40745408"></a><a class="indexterm" name="idp40746224"></a><p>
5528 This again may seem right to you. If I wrote a book, then why should
5529 you be able to write a movie that takes my story and makes money from
5530 it without paying me or crediting me? Or if Disney creates a creature
5531 called <span class="quote">«<span class="quote">Mickey Mouse,</span>»</span> why should you be able to make Mickey Mouse
5532 toys and be the one to trade on the value that Disney originally
5533 created?
5534 </p><p>
5535 These are good arguments, and, in general, my point is not that the
5536 derivative right is unjustified. My aim just now is much narrower:
5537 simply to make clear that this expansion is a significant change from
5538 the rights originally granted.
5539 </p><a class="indexterm" name="idp40748848"></a><a class="indexterm" name="idp40750048"></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>
5540 Whereas originally the law regulated only publishers, the change in
5541 copyright's scope means that the law today regulates publishers, users,
5542 and authors. It regulates them because all three are capable of making
5543 copies, and the core of the regulation of copyright law is copies.<a href="#ftn.idp40756928" class="footnote" name="idp40756928"><sup class="footnote">[133]</sup></a>
5544 </p><a class="indexterm" name="idp40760784"></a><a class="indexterm" name="idxcreativepropertyotherpropertyrightsvs2"></a><p>
5545
5546 <span class="quote">«<span class="quote">Copies.</span>»</span> That certainly sounds like the obvious thing for
5547 <span class="emphasis"><em>copy</em></span>right law to regulate. But as with Jack
5548 Valenti's argument at the start of this chapter, that <span class="quote">«<span class="quote">creative
5549 property</span>»</span> deserves the <span class="quote">«<span class="quote">same rights</span>»</span> as all other property, it is the
5550 <span class="emphasis"><em>obvious</em></span> that we need to be most careful
5551 about. For while it may be obvious that in the world before the
5552 Internet, copies were the obvious trigger for copyright law, upon
5553 reflection, it should be obvious that in the world with the Internet,
5554 copies should <span class="emphasis"><em>not</em></span> be the trigger for copyright
5555 law. More precisely, they should not <span class="emphasis"><em>always</em></span> be
5556 the trigger for copyright law.
5557 </p><a class="indexterm" name="idp40768016"></a><p>
5558 This is perhaps the central claim of this book, so let me take this
5559 very slowly so that the point is not easily missed. My claim is that the
5560 Internet should at least force us to rethink the conditions under which
5561 the law of copyright automatically applies,<a href="#ftn.idp40769936" class="footnote" name="idp40769936"><sup class="footnote">[134]</sup></a>
5562 because it is clear that the
5563 current reach of copyright was never contemplated, much less chosen,
5564 by the legislators who enacted copyright law.
5565 </p><a class="indexterm" name="idp40771392"></a><a class="indexterm" name="idp40772624"></a><p>
5566 We can see this point abstractly by beginning with this largely
5567 empty circle.
5568 </p><div class="figure"><a name="fig-1521"></a><p class="title"><b>Figure 10.7. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="40%"><tr><td align="center"><img src="images/1521.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idxbooksthreetypesofusesof"></a><a class="indexterm" name="idxcopyrightlawcopiesascoreissueof2"></a><a class="indexterm" name="idxinternetcopyrightapplicabilityalteredbytechnologyof"></a><a class="indexterm" name="idxtechnologycopyrightintentalteredby"></a><a class="indexterm" name="idxderivativeworkspiracyvs4"></a><a class="indexterm" name="idxpiracyderivativeworkvs4"></a><p>
5569
5570 Think about a book in real space, and imagine this circle to represent
5571 all its potential <span class="emphasis"><em>uses</em></span>. Most of these uses are
5572 unregulated by copyright law, because the uses don't create a copy. If
5573 you read a book, that act is not regulated by copyright law. If you
5574 give someone the book, that act is not regulated by copyright law. If
5575 you resell a book, that act is not regulated (copyright law expressly
5576 states that after the first sale of a book, the copyright owner can
5577 impose no further conditions on the disposition of the book). If you
5578 sleep on the book or use it to hold up a lamp or let your puppy chew
5579 it up, those acts are not regulated by copyright law, because those
5580 acts do not make a copy.
5581 </p><div class="figure"><a name="fig-1531"></a><p class="title"><b>Figure 10.8. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="40%"><tr><td align="center"><img src="images/1531.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5582 Obviously, however, some uses of a copyrighted book are regulated
5583 by copyright law. Republishing the book, for example, makes a copy. It
5584 is therefore regulated by copyright law. Indeed, this particular use stands
5585 at the core of this circle of possible uses of a copyrighted work. It is the
5586 paradigmatic use properly regulated by copyright regulation (see
5587 diagram in figure <a class="xref" href="#fig-1541" title="Figure 10.9. ">10.9</a>).
5588 </p><a class="indexterm" name="idp40794816"></a><a class="indexterm" name="idp40796112"></a><div class="figure"><a name="fig-1541"></a><p class="title"><b>Figure 10.9. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="40%"><tr><td align="center"><img src="images/1541.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idxfairuse"></a><a class="indexterm" name="idxcopyrightlawfairuseand2"></a><p>
5589 Finally, there is a tiny sliver of otherwise regulated copying uses
5590 that remain unregulated because the law considers these <span class="quote">«<span class="quote">fair uses.</span>»</span>
5591 </p><a class="indexterm" name="idp40804608"></a><a class="indexterm" name="idp40805680"></a><p>
5592 These are uses that themselves involve copying, but which the law
5593 treats as unregulated because public policy demands that they remain
5594 unregulated.  You are free to quote from this book, even in a review
5595 that is quite negative, without my permission, even though that
5596 quoting makes a copy. That copy would ordinarily give the copyright
5597 owner the exclusive right to say whether the copy is allowed or not,
5598 but the law denies the owner any exclusive right over such <span class="quote">«<span class="quote">fair uses</span>»</span>
5599 for public policy (and possibly First Amendment) reasons.
5600 </p><div class="figure"><a name="fig-1542"></a><p class="title"><b>Figure 10.10. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="40%"><tr><td align="center"><img src="images/1542.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idxcopyrightusagerestrictionsattachedto"></a><p>
5601
5602 In real space, then, the possible uses of a book are divided into three
5603 sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that
5604 are nonetheless deemed <span class="quote">«<span class="quote">fair</span>»</span> regardless of the copyright owner's views.
5605 </p><a class="indexterm" name="idp40813408"></a><a class="indexterm" name="idxbooksoninternet"></a><a class="indexterm" name="idxinternetbookson2"></a><a class="indexterm" name="idp40818464"></a><p>
5606 Enter the Internet&#8212;a distributed, digital network where every use
5607 of a copyrighted work produces a copy.<a href="#ftn.idp40820016" class="footnote" name="idp40820016"><sup class="footnote">[135]</sup></a>
5608 And because of this single, arbitrary feature of the design of a
5609 digital network, the scope of category 1 changes dramatically. Uses
5610 that before were presumptively unregulated are now presumptively
5611 regulated. No longer is there a set of presumptively unregulated uses
5612 that define a freedom associated with a copyrighted work. Instead,
5613 each use is now subject to the copyright, because each use also makes
5614 a copy&#8212;category 1 gets sucked into category 2. And those who
5615 would defend the unregulated uses of copyrighted work must look
5616 exclusively to category 3, fair uses, to bear the burden of this
5617 shift.
5618 </p><a class="indexterm" name="idp40821520"></a><a class="indexterm" name="idp40823584"></a><p>
5619 So let's be very specific to make this general point clear. Before the
5620 Internet, if you purchased a book and read it ten times, there would
5621 be no plausible <span class="emphasis"><em>copyright</em></span>-related argument that
5622 the copyright owner could make to control that use of her
5623 book. Copyright law would have nothing to say about whether you read
5624 the book once, ten times, or every
5625
5626 night before you went to bed. None of those instances of
5627 use&#8212;reading&#8212; could be regulated by copyright law because
5628 none of those uses produced a copy.
5629 </p><a class="indexterm" name="idxebooks"></a><a class="indexterm" name="idxderivativeworkstechnologicaldevelopmentsand"></a><p>
5630 But the same book as an e-book is effectively governed by a different
5631 set of rules. Now if the copyright owner says you may read the book
5632 only once or only once a month, then <span class="emphasis"><em>copyright
5633 law</em></span> would aid the copyright owner in exercising this degree
5634 of control, because of the accidental feature of copyright law that
5635 triggers its application upon there being a copy. Now if you read the
5636 book ten times and the license says you may read it only five times,
5637 then whenever you read the book (or any portion of it) beyond the
5638 fifth time, you are making a copy of the book contrary to the
5639 copyright owner's wish.
5640 </p><div class="figure"><a name="fig-1551"></a><p class="title"><b>Figure 10.11. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="40%"><tr><td align="center"><img src="images/1551.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5641 There are some people who think this makes perfect sense. My aim
5642 just now is not to argue about whether it makes sense or not. My aim
5643 is only to make clear the change. Once you see this point, a few other
5644 points also become clear:
5645 </p><p>
5646 First, making category 1 disappear is not anything any policy maker
5647 ever intended. Congress did not think through the collapse of the
5648 presumptively unregulated uses of copyrighted works. There is no
5649 evidence at all that policy makers had this idea in mind when they
5650 allowed our policy here to shift. Unregulated uses were an important
5651 part of free culture before the Internet.
5652 </p><a class="indexterm" name="idxcopyrightlawonrepublishingvstransformationoforiginalwork3"></a><p>
5653 Second, this shift is especially troubling in the context of
5654 transformative uses of creative content. Again, we can all understand
5655 the wrong in commercial piracy. But the law now purports to regulate
5656 <span class="emphasis"><em>any</em></span> transformation you make of creative work
5657 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
5658 crimes. Tinkering with a story and releasing it to others exposes the
5659 tinkerer to at least a requirement of justification.  However
5660 troubling the expansion with respect to copying a particular work, it
5661 is extraordinarily troubling with respect to transformative uses of
5662 creative work.
5663 </p><a class="indexterm" name="idxfairuseinternetburdenson"></a><a class="indexterm" name="idxcopyrightlawfairuseand3"></a><a class="indexterm" name="idxderivativeworksfairusevs"></a><p>
5664 Third, this shift from category 1 to category 2 puts an extraordinary
5665
5666
5667 burden on category 3 (<span class="quote">«<span class="quote">fair use</span>»</span>) that fair use never before had to
5668 bear.  If a copyright owner now tried to control how many times I
5669 could read a book on-line, the natural response would be to argue that
5670 this is a violation of my fair use rights. But there has never been
5671 any litigation about whether I have a fair use right to read, because
5672 before the Internet, reading did not trigger the application of
5673 copyright law and hence the need for a fair use defense. The right to
5674 read was effectively protected before because reading was not
5675 regulated.
5676 </p><a class="indexterm" name="idp40846992"></a><a class="indexterm" name="idp40848336"></a><a class="indexterm" name="idp40849728"></a><a class="indexterm" name="idp40851056"></a><a class="indexterm" name="idp40852448"></a><p>
5677 This point about fair use is totally ignored, even by advocates for
5678 free culture. We have been cornered into arguing that our rights
5679 depend upon fair use&#8212;never even addressing the earlier question
5680 about the expansion in effective regulation. A thin protection
5681 grounded in fair use makes sense when the vast majority of uses are
5682 <span class="emphasis"><em>unregulated</em></span>. But when everything becomes
5683 presumptively regulated, then the protections of fair use are not
5684 enough.
5685 </p><a class="indexterm" name="idp40855200"></a><a class="indexterm" name="idp40856480"></a><a class="indexterm" name="idp40857680"></a><a class="indexterm" name="idp40858928"></a><a class="indexterm" name="idp40860176"></a><a class="indexterm" name="idp40861568"></a><a class="indexterm" name="idp40862912"></a><a class="indexterm" name="idxvideopipeline"></a><a class="indexterm" name="idxadvertising"></a><a class="indexterm" name="idxfilmindustrytraileradvertisementsof"></a><p>
5686 The case of Video Pipeline is a good example. Video Pipeline was
5687 in the business of making <span class="quote">«<span class="quote">trailer</span>»</span> advertisements for movies available
5688 to video stores. The video stores displayed the trailers as a way to sell
5689 videos. Video Pipeline got the trailers from the film distributors, put
5690 the trailers on tape, and sold the tapes to the retail stores.
5691 </p><a class="indexterm" name="idp40870304"></a><p>
5692 The company did this for about fifteen years. Then, in 1997, it began
5693 to think about the Internet as another way to distribute these
5694 previews.  The idea was to expand their <span class="quote">«<span class="quote">selling by sampling</span>»</span>
5695 technique by giving on-line stores the same ability to enable
5696 <span class="quote">«<span class="quote">browsing.</span>»</span> Just as in a bookstore you can read a few pages of a book
5697 before you buy the book, so, too, you would be able to sample a bit
5698 from the movie on-line before you bought it.
5699 </p><a class="indexterm" name="idxdisneyinc2"></a><a class="indexterm" name="idp40874288"></a><a class="indexterm" name="idxcopyrightlawcopiesascoreissueof3"></a><a class="indexterm" name="idxfairuselegalintimidationtacticsagainst2"></a><p>
5700 In 1998, Video Pipeline informed Disney and other film distributors
5701 that it intended to distribute the trailers through the Internet
5702 (rather than sending the tapes) to distributors of their videos. Two
5703 years later, Disney told Video Pipeline to stop. The owner of Video
5704
5705 Pipeline asked Disney to talk about the matter&#8212;he had built a
5706 business on distributing this content as a way to help sell Disney
5707 films; he had customers who depended upon his delivering this
5708 content. Disney would agree to talk only if Video Pipeline stopped the
5709 distribution immediately.  Video Pipeline thought it was within their
5710 <span class="quote">«<span class="quote">fair use</span>»</span> rights to distribute the clips as they had. So they filed a
5711 lawsuit to ask the court to declare that these rights were in fact
5712 their rights.
5713 </p><a class="indexterm" name="idp40881168"></a><a class="indexterm" name="idp40882416"></a><a class="indexterm" name="idxcopyrightusagerestrictionsattachedto2"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitswillfulinfringementfindingsin"></a><a class="indexterm" name="idp40887696"></a><p>
5714 Disney countersued&#8212;for $100 million in damages. Those damages
5715 were predicated upon a claim that Video Pipeline had <span class="quote">«<span class="quote">willfully
5716 infringed</span>»</span> on Disney's copyright. When a court makes a finding of
5717 willful infringement, it can award damages not on the basis of the
5718 actual harm to the copyright owner, but on the basis of an amount set
5719 in the statute. Because Video Pipeline had distributed seven hundred
5720 clips of Disney movies to enable video stores to sell copies of those
5721 movies, Disney was now suing Video Pipeline for $100 million.
5722 </p><p>
5723 Disney has the right to control its property, of course. But the video
5724 stores that were selling Disney's films also had some sort of right to be
5725 able to sell the films that they had bought from Disney. Disney's claim
5726 in court was that the stores were allowed to sell the films and they were
5727 permitted to list the titles of the films they were selling, but they were
5728 not allowed to show clips of the films as a way of selling them without
5729 Disney's permission.
5730 </p><a class="indexterm" name="idp40890752"></a><p>
5731 Now, you might think this is a close case, and I think the courts
5732 would consider it a close case. My point here is to map the change
5733 that gives Disney this power. Before the Internet, Disney couldn't
5734 really control how people got access to their content. Once a video
5735 was in the marketplace, the <span class="quote">«<span class="quote">first-sale doctrine</span>»</span> would free the
5736 seller to use the video as he wished, including showing portions of it
5737 in order to engender sales of the entire movie video. But with the
5738 Internet, it becomes possible for Disney to centralize control over
5739 access to this content. Because each use of the Internet produces a
5740 copy, use on the Internet becomes subject to the copyright owner's
5741 control. The technology expands the scope of effective control,
5742 because the technology builds a copy into every transaction.
5743 </p><a class="indexterm" name="idp40893152"></a><a class="indexterm" name="idp40894400"></a><a class="indexterm" name="idp40895712"></a><a class="indexterm" name="idp40897104"></a><a class="indexterm" name="idp40898496"></a><a class="indexterm" name="idp40899872"></a><a class="indexterm" name="idp40901216"></a><a class="indexterm" name="idp40902032"></a><a class="indexterm" name="idp40902848"></a><p>
5744
5745 No doubt, a potential is not yet an abuse, and so the potential for
5746 control is not yet the abuse of control. Barnes &amp; Noble has the
5747 right to say you can't touch a book in their store; property law gives
5748 them that right.  But the market effectively protects against that
5749 abuse. If Barnes &amp; Noble banned browsing, then consumers would
5750 choose other bookstores.  Competition protects against the
5751 extremes. And it may well be (my argument so far does not even
5752 question this) that competition would prevent any similar danger when
5753 it comes to copyright. Sure, publishers exercising the rights that
5754 authors have assigned to them might try to regulate how many times you
5755 read a book, or try to stop you from sharing the book with anyone. But
5756 in a competitive market such as the book market, the dangers of this
5757 happening are quite slight.
5758 </p><p>
5759 Again, my aim so far is simply to map the changes that this changed
5760 architecture enables. Enabling technology to enforce the control of
5761 copyright means that the control of copyright is no longer defined by
5762 balanced policy. The control of copyright is simply what private
5763 owners choose. In some contexts, at least, that fact is harmless. But
5764 in some contexts it is a recipe for disaster.
5765 </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>
5766 The disappearance of unregulated uses would be change enough, but a
5767 second important change brought about by the Internet magnifies its
5768 significance. This second change does not affect the reach of copyright
5769 regulation; it affects how such regulation is enforced.
5770 </p><a class="indexterm" name="idp40909776"></a><a class="indexterm" name="idp40910864"></a><p>
5771 In the world before digital technology, it was generally the law that
5772 controlled whether and how someone was regulated by copyright law.
5773 The law, meaning a court, meaning a judge: In the end, it was a human,
5774 trained in the tradition of the law and cognizant of the balances that
5775 tradition embraced, who said whether and how the law would restrict
5776 your freedom.
5777 </p><a class="indexterm" name="idp40912752"></a><a class="indexterm" name="idxmarxbrothers"></a><a class="indexterm" name="idxwarnerbrothers"></a><p>
5778 There's a famous story about a battle between the Marx Brothers
5779 and Warner Brothers. The Marxes intended to make a parody of
5780
5781 <em class="citetitle">Casablanca</em>. Warner Brothers objected. They
5782 wrote a nasty letter to the Marxes, warning them that there would be
5783 serious legal consequences if they went forward with their
5784 plan.<a href="#ftn.idp40917920" class="footnote" name="idp40917920"><sup class="footnote">[136]</sup></a>
5785 </p><p>
5786 This led the Marx Brothers to respond in kind. They warned
5787 Warner Brothers that the Marx Brothers <span class="quote">«<span class="quote">were brothers long before
5788 you were.</span>»</span><a href="#ftn.idp40920512" class="footnote" name="idp40920512"><sup class="footnote">[137]</sup></a>
5789 The Marx Brothers therefore owned the word
5790 <em class="citetitle">brothers</em>, and if Warner Brothers insisted on
5791 trying to control <em class="citetitle">Casablanca</em>, then the Marx
5792 Brothers would insist on control over <em class="citetitle">brothers</em>.
5793 </p><p>
5794 An absurd and hollow threat, of course, because Warner Brothers,
5795 like the Marx Brothers, knew that no court would ever enforce such a
5796 silly claim. This extremism was irrelevant to the real freedoms anyone
5797 (including Warner Brothers) enjoyed.
5798 </p><a class="indexterm" name="idxbooksoninternet2"></a><a class="indexterm" name="idxinternetbookson3"></a><p>
5799 On the Internet, however, there is no check on silly rules, because on
5800 the Internet, increasingly, rules are enforced not by a human but by a
5801 machine: Increasingly, the rules of copyright law, as interpreted by
5802 the copyright owner, get built into the technology that delivers
5803 copyrighted content. It is code, rather than law, that rules. And the
5804 problem with code regulations is that, unlike law, code has no
5805 shame. Code would not get the humor of the Marx Brothers. The
5806 consequence of that is not at all funny.
5807 </p><a class="indexterm" name="idp40929360"></a><a class="indexterm" name="idp40930672"></a><a class="indexterm" name="idxadobeebookreader"></a><p>
5808 Consider the life of my Adobe eBook Reader.
5809 </p><p>
5810 An e-book is a book delivered in electronic form. An Adobe eBook is
5811 not a book that Adobe has published; Adobe simply produces the
5812 software that publishers use to deliver e-books. It provides the
5813 technology, and the publisher delivers the content by using the
5814 technology.
5815 </p><div class="figure-float" style="float: left;"><div class="figure"><a name="fig-example-adobe-ebook-reader"></a><p class="title"><b>Figure 10.12. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/example-adobe-ebook-reader.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"></div><p>
5816 In figure
5817 <a class="xref" href="#fig-example-adobe-ebook-reader" title="Figure 10.12. ">10.12</a>
5818 is a picture of an old version of my Adobe eBook Reader.
5819 </p><p>
5820 As you can see, I have a small collection of e-books within this
5821 e-book library. Some of these books reproduce content that is in the
5822 public domain: <em class="citetitle">Middlemarch</em>, for example, is in
5823 the public domain.  Some of them reproduce content that is not in the
5824 public domain: My own book <em class="citetitle">The Future of Ideas</em>
5825 is not yet within the public domain.  Consider
5826 <em class="citetitle">Middlemarch</em> first. If you click on my e-book
5827 copy of
5828
5829 <em class="citetitle">Middlemarch</em>, you'll see a fancy cover, and then
5830 a button at the bottom called Permissions.
5831 </p><p>
5832 If you click on the Permissions button, you'll see a list of the
5833 permissions that the publisher purports to grant with this book.
5834 </p><div class="figure"><a name="fig-1612"></a><p class="title"><b>Figure 10.13. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1612.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5835
5836 According to my eBook Reader, I have the permission to copy to the
5837 clipboard of the computer ten text selections every ten days. (So far,
5838 I've copied no text to the clipboard.)  I also have the permission to
5839 print ten pages from the book every ten days. Lastly, I have the
5840 permission to use the Read Aloud button to hear <em class="citetitle">Middlemarch</em>
5841 read aloud through the computer.
5842 </p><a class="indexterm" name="idp40945744"></a><a class="indexterm" name="idp40946560"></a><p>
5843 Here's the e-book for another work in the public domain (including the
5844 translation): Aristotle's <em class="citetitle">Politics</em>.
5845 </p><div class="figure"><a name="fig-1621"></a><p class="title"><b>Figure 10.14. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/aristotele-ebook.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5846 According to its permissions, no printing or copying is permitted
5847 at all. But fortunately, you can use the Read Aloud button to hear
5848 the book.
5849 </p><div class="figure"><a name="fig-1622"></a><p class="title"><b>Figure 10.15. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1622.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp40953952"></a><a class="indexterm" name="idp40954784"></a><p>
5850 Finally (and most embarrassingly), here are the permissions for the
5851 original e-book version of my last book, <em class="citetitle">The Future of
5852 Ideas</em>:
5853 </p><div class="figure"><a name="fig-1631"></a><p class="title"><b>Figure 10.16. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1631.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5854 No copying, no printing, and don't you dare try to listen to this book!
5855 </p><p>
5856 Now, the Adobe eBook Reader calls these controls
5857 <span class="quote">«<span class="quote">permissions</span>»</span>&#8212; as if the publisher has the power to control how
5858 you use these works.  For works under copyright, the copyright owner
5859 certainly does have the power&#8212;up to the limits of the copyright
5860 law. But for work not under copyright, there is no such copyright
5861 power.<a href="#ftn.idp40960368" class="footnote" name="idp40960368"><sup class="footnote">[138]</sup></a>
5862 When my e-book of <em class="citetitle">Middlemarch</em> says I have the
5863 permission to copy only ten text selections into the memory every ten
5864 days, what that really means is that the eBook Reader has enabled the
5865 publisher to control how I use the book on my computer, far beyond the
5866 control that the law would enable.
5867 </p><p>
5868 The control comes instead from the code&#8212;from the technology
5869 within which the e-book <span class="quote">«<span class="quote">lives.</span>»</span> Though the e-book says that these are
5870 permissions, they are not the sort of <span class="quote">«<span class="quote">permissions</span>»</span> that most of us
5871 deal with. When a teenager gets <span class="quote">«<span class="quote">permission</span>»</span> to stay out till
5872 midnight, she knows (unless she's Cinderella) that she can stay out
5873 till 2 A.M., but will suffer a punishment if she's caught. But when
5874 the Adobe eBook Reader says I have the permission to make ten copies
5875 of the text into the computer's memory, that means that after I've
5876 made ten copies, the computer will not make any more. The same with
5877 the printing restrictions: After ten pages, the eBook Reader will not
5878 print any more pages.  It's the same with the silly restriction that
5879 says that you can't use the Read Aloud button to read my book
5880 aloud&#8212;it's not that the company will sue you if you do; instead,
5881 if you push the Read Aloud button with my book, the machine simply
5882 won't read aloud.
5883 </p><a class="indexterm" name="idp40965472"></a><a class="indexterm" name="idp40967184"></a><p>
5884
5885 These are <span class="emphasis"><em>controls</em></span>, not permissions. Imagine a
5886 world where the Marx Brothers sold word processing software that, when
5887 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
5888 sentence.
5889 </p><p>
5890 This is the future of copyright law: not so much copyright
5891 <span class="emphasis"><em>law</em></span> as copyright <span class="emphasis"><em>code</em></span>. The
5892 controls over access to content will not be controls that are ratified
5893 by courts; the controls over access to content will be controls that
5894 are coded by programmers. And whereas the controls that are built into
5895 the law are always to be checked by a judge, the controls that are
5896 built into the technology have no similar built-in check.
5897 </p><p>
5898 How significant is this? Isn't it always possible to get around the
5899 controls built into the technology? Software used to be sold with
5900 technologies that limited the ability of users to copy the software,
5901 but those were trivial protections to defeat. Why won't it be trivial
5902 to defeat these protections as well?
5903 </p><p>
5904 We've only scratched the surface of this story. Return to the Adobe
5905 eBook Reader.
5906 </p><a class="indexterm" name="idxalicesadventuresinwonderlandcarroll"></a><a class="indexterm" name="idxpublicdomainebookrestrictionson2"></a><p>
5907 Early in the life of the Adobe eBook Reader, Adobe suffered a public
5908 relations nightmare. Among the books that you could download for free
5909 on the Adobe site was a copy of <em class="citetitle">Alice's Adventures in
5910 Wonderland</em>.  This wonderful book is in the public
5911 domain. Yet when you clicked on Permissions for that book, you got the
5912 following report:
5913 </p><div class="figure"><a name="fig-1641"></a><p class="title"><b>Figure 10.17. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1641.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5914 Here was a public domain children's book that you were not allowed to
5915 copy, not allowed to lend, not allowed to give, and, as the
5916 <span class="quote">«<span class="quote">permissions</span>»</span> indicated, not allowed to <span class="quote">«<span class="quote">read aloud</span>»</span>!
5917 </p><p>
5918 The public relations nightmare attached to that final permission.
5919 For the text did not say that you were not permitted to use the Read
5920 Aloud button; it said you did not have the permission to read the book
5921 aloud. That led some people to think that Adobe was restricting the
5922 right of parents, for example, to read the book to their children, which
5923 seemed, to say the least, absurd.
5924 </p><p>
5925 Adobe responded quickly that it was absurd to think that it was trying
5926 to restrict the right to read a book aloud. Obviously it was only
5927 restricting the ability to use the Read Aloud button to have the book
5928 read aloud. But the question Adobe never did answer is this: Would
5929 Adobe thus agree that a consumer was free to use software to hack
5930 around the restrictions built into the eBook Reader? If some company
5931 (call it Elcomsoft) developed a program to disable the technological
5932 protection built into an Adobe eBook so that a blind person, say,
5933 could use a computer to read the book aloud, would Adobe agree that
5934 such a use of an eBook Reader was fair? Adobe didn't answer because
5935 the answer, however absurd it might seem, is no.
5936 </p><a class="indexterm" name="idp40983552"></a><a class="indexterm" name="idp40984880"></a><p>
5937 The point is not to blame Adobe. Indeed, Adobe is among the most
5938 innovative companies developing strategies to balance open access to
5939 content with incentives for companies to innovate. But Adobe's
5940 technology enables control, and Adobe has an incentive to defend this
5941 control.  That incentive is understandable, yet what it creates is
5942 often crazy.
5943 </p><a class="indexterm" name="idp40986976"></a><a class="indexterm" name="idp40988176"></a><a class="indexterm" name="idp40989488"></a><p>
5944 To see the point in a particularly absurd context, consider a favorite
5945 story of mine that makes the same point.
5946 </p><a class="indexterm" name="idxaibo1"></a><a class="indexterm" name="idxroboticdog1"></a><a class="indexterm" name="idxsonyaibo1"></a><p>
5947 Consider the robotic dog made by Sony named <span class="quote">«<span class="quote">Aibo.</span>»</span> The Aibo
5948 learns tricks, cuddles, and follows you around. It eats only electricity
5949 and that doesn't leave that much of a mess (at least in your house).
5950 </p><p>
5951 The Aibo is expensive and popular. Fans from around the world
5952 have set up clubs to trade stories. One fan in particular set up a Web
5953 site to enable information about the Aibo dog to be shared. This fan set
5954
5955 up aibopet.com (and aibohack.com, but that resolves to the same site),
5956 and on that site he provided information about how to teach an Aibo
5957 to do tricks in addition to the ones Sony had taught it.
5958 </p><p>
5959 <span class="quote">«<span class="quote">Teach</span>»</span> here has a special meaning. Aibos are just cute computers.
5960 You teach a computer how to do something by programming it
5961 differently.  So to say that aibopet.com was giving information about
5962 how to teach the dog to do new tricks is just to say that aibopet.com
5963 was giving information to users of the Aibo pet about how to hack
5964 their computer <span class="quote">«<span class="quote">dog</span>»</span> to make it do new tricks (thus, aibohack.com).
5965 </p><a class="indexterm" name="idp41000048"></a><p>
5966 If you're not a programmer or don't know many programmers, the word
5967 <em class="citetitle">hack</em> has a particularly unfriendly
5968 connotation. Nonprogrammers hack bushes or weeds. Nonprogrammers in
5969 horror movies do even worse. But to programmers, or coders, as I call
5970 them, <em class="citetitle">hack</em> is a much more positive
5971 term. <em class="citetitle">Hack</em> just means code that enables the
5972 program to do something it wasn't originally intended or enabled to
5973 do. If you buy a new printer for an old computer, you might find the
5974 old computer doesn't run, or <span class="quote">«<span class="quote">drive,</span>»</span> the printer. If you discovered
5975 that, you'd later be happy to discover a hack on the Net by someone
5976 who has written a driver to enable the computer to drive the printer
5977 you just bought.
5978 </p><p>
5979 Some hacks are easy. Some are unbelievably hard. Hackers as a
5980 community like to challenge themselves and others with increasingly
5981 difficult tasks. There's a certain respect that goes with the talent to hack
5982 well. There's a well-deserved respect that goes with the talent to hack
5983 ethically.
5984 </p><p>
5985 The Aibo fan was displaying a bit of both when he hacked the program
5986 and offered to the world a bit of code that would enable the Aibo to
5987 dance jazz. The dog wasn't programmed to dance jazz. It was a clever
5988 bit of tinkering that turned the dog into a more talented creature
5989 than Sony had built.
5990 </p><a class="indexterm" name="idp41005056"></a><a class="indexterm" name="idp41006368"></a><a class="indexterm" name="idp41007680"></a><p>
5991 I've told this story in many contexts, both inside and outside the
5992 United States. Once I was asked by a puzzled member of the audience,
5993 is it permissible for a dog to dance jazz in the United States? We
5994 forget that stories about the backcountry still flow across much of
5995 the
5996
5997
5998 world. So let's just be clear before we continue: It's not a crime
5999 anywhere (anymore) to dance jazz. Nor is it a crime to teach your dog
6000 to dance jazz. Nor should it be a crime (though we don't have a lot to
6001 go on here) to teach your robot dog to dance jazz. Dancing jazz is a
6002 completely legal activity. One imagines that the owner of aibopet.com
6003 thought, <span class="emphasis"><em>What possible problem could there be with teaching
6004 a robot dog to dance?</em></span>
6005 </p><a class="indexterm" name="idp41010832"></a><p>
6006 Let's put the dog to sleep for a minute, and turn to a pony show&#8212;
6007 not literally a pony show, but rather a paper that a Princeton academic
6008 named Ed Felten prepared for a conference. This Princeton academic
6009 is well known and respected. He was hired by the government in the
6010 Microsoft case to test Microsoft's claims about what could and could
6011 not be done with its own code. In that trial, he demonstrated both his
6012 brilliance and his coolness. Under heavy badgering by Microsoft
6013 lawyers, Ed Felten stood his ground. He was not about to be bullied
6014 into being silent about something he knew very well.
6015 </p><p>
6016 But Felten's bravery was really tested in April 2001.<a href="#ftn.idp41013344" class="footnote" name="idp41013344"><sup class="footnote">[139]</sup></a>
6017 He and a group of colleagues were working on a paper to be submitted
6018 at conference.  The paper was intended to describe the weakness in an
6019 encryption system being developed by the Secure Digital Music
6020 Initiative as a technique to control the distribution of music.
6021 </p><p>
6022 The SDMI coalition had as its goal a technology to enable content
6023 owners to exercise much better control over their content than the
6024 Internet, as it originally stood, granted them. Using encryption, SDMI
6025 hoped to develop a standard that would allow the content owner to say
6026 <span class="quote">«<span class="quote">this music cannot be copied,</span>»</span> and have a computer respect that
6027 command.  The technology was to be part of a <span class="quote">«<span class="quote">trusted system</span>»</span> of
6028 control that would get content owners to trust the system of the
6029 Internet much more.
6030 </p><p>
6031 When SDMI thought it was close to a standard, it set up a competition.
6032 In exchange for providing contestants with the code to an
6033 SDMI-encrypted bit of content, contestants were to try to crack it
6034 and, if they did, report the problems to the consortium.
6035 </p><p>
6036
6037 Felten and his team figured out the encryption system quickly. He and
6038 the team saw the weakness of this system as a type: Many encryption
6039 systems would suffer the same weakness, and Felten and his team
6040 thought it worthwhile to point this out to those who study encryption.
6041 </p><p>
6042 Let's review just what Felten was doing. Again, this is the United
6043 States. We have a principle of free speech. We have this principle not
6044 just because it is the law, but also because it is a really great
6045 idea. A strongly protected tradition of free speech is likely to
6046 encourage a wide range of criticism. That criticism is likely, in
6047 turn, to improve the systems or people or ideas criticized.
6048 </p><p>
6049 What Felten and his colleagues were doing was publishing a paper
6050 describing the weakness in a technology. They were not spreading free
6051 music, or building and deploying this technology. The paper was an
6052 academic essay, unintelligible to most people. But it clearly showed the
6053 weakness in the SDMI system, and why SDMI would not, as presently
6054 constituted, succeed.
6055 </p><a class="indexterm" name="idxaibo2"></a><a class="indexterm" name="idxroboticdog2"></a><a class="indexterm" name="idxsonyaibo2"></a><p>
6056 What links these two, aibopet.com and Felten, is the letters they
6057 then received. Aibopet.com received a letter from Sony about the
6058 aibopet.com hack. Though a jazz-dancing dog is perfectly legal, Sony
6059 wrote:
6060 </p><div class="blockquote"><blockquote class="blockquote"><p>
6061 Your site contains information providing the means to circumvent
6062 AIBO-ware's copy protection protocol constituting a violation of the
6063 anti-circumvention provisions of the Digital Millennium Copyright Act.
6064 </p></blockquote></div><a class="indexterm" name="idp41032992"></a><a class="indexterm" name="idp41034304"></a><a class="indexterm" name="idp41035552"></a><p>
6065 And though an academic paper describing the weakness in a system
6066 of encryption should also be perfectly legal, Felten received a letter
6067 from an RIAA lawyer that read:
6068 </p><div class="blockquote"><blockquote class="blockquote"><p>
6069 Any  disclosure of information gained from participating in the
6070
6071 Public Challenge would be outside the scope of activities permitted by
6072 the Agreement and could subject you and your research team to actions
6073 under the Digital Millennium Copyright Act (<span class="quote">«<span class="quote">DMCA</span>»</span>).
6074 </p></blockquote></div><p>
6075 In both cases, this weirdly Orwellian law was invoked to control the
6076 spread of information. The Digital Millennium Copyright Act made
6077 spreading such information an offense.
6078 </p><p>
6079 The DMCA was enacted as a response to copyright owners' first fear
6080 about cyberspace. The fear was that copyright control was effectively
6081 dead; the response was to find technologies that might compensate.
6082 These new technologies would be copyright protection
6083 technologies&#8212; technologies to control the replication and
6084 distribution of copyrighted material. They were designed as
6085 <span class="emphasis"><em>code</em></span> to modify the original
6086 <span class="emphasis"><em>code</em></span> of the Internet, to reestablish some
6087 protection for copyright owners.
6088 </p><p>
6089 The DMCA was a bit of law intended to back up the protection of this
6090 code designed to protect copyrighted material. It was, we could say,
6091 <span class="emphasis"><em>legal code</em></span> intended to buttress
6092 <span class="emphasis"><em>software code</em></span> which itself was intended to
6093 support the <span class="emphasis"><em>legal code of copyright</em></span>.
6094 </p><p>
6095 But the DMCA was not designed merely to protect copyrighted works to
6096 the extent copyright law protected them. Its protection, that is, did
6097 not end at the line that copyright law drew. The DMCA regulated
6098 devices that were designed to circumvent copyright protection
6099 measures. It was designed to ban those devices, whether or not the use
6100 of the copyrighted material made possible by that circumvention would
6101 have been a copyright violation.
6102 </p><a class="indexterm" name="idp41044256"></a><a class="indexterm" name="idp41045072"></a><a class="indexterm" name="idp41045888"></a><p>
6103 Aibopet.com and Felten make the point. The Aibo hack circumvented a
6104 copyright protection system for the purpose of enabling the dog to
6105 dance jazz. That enablement no doubt involved the use of copyrighted
6106 material. But as aibopet.com's site was noncommercial, and the use did
6107 not enable subsequent copyright infringements, there's no doubt that
6108 aibopet.com's hack was fair use of Sony's copyrighted material. Yet
6109 fair use is not a defense to the DMCA. The question is not whether the
6110
6111 use of the copyrighted material was a copyright violation. The question
6112 is whether a copyright protection system was circumvented.
6113 </p><p>
6114 The threat against Felten was more attenuated, but it followed the
6115 same line of reasoning. By publishing a paper describing how a
6116 copyright protection system could be circumvented, the RIAA lawyer
6117 suggested, Felten himself was distributing a circumvention technology.
6118 Thus, even though he was not himself infringing anyone's copyright,
6119 his academic paper was enabling others to infringe others' copyright.
6120 </p><a class="indexterm" name="idp41049152"></a><a class="indexterm" name="idxcassettevcrs2"></a><p>
6121 The bizarreness of these arguments is captured in a cartoon drawn in
6122 1981 by Paul Conrad. At that time, a court in California had held that
6123 the VCR could be banned because it was a copyright-infringing
6124 technology: It enabled consumers to copy films without the permission
6125 of the copyright owner. No doubt there were uses of the technology
6126 that were legal: Fred Rogers, aka <span class="quote">«<span class="quote"><em class="citetitle">Mr. Rogers</em>,</span>»</span>
6127 for example, had testified in that case that he wanted people to feel
6128 free to tape Mr. Rogers' Neighborhood.
6129 <a class="indexterm" name="idp41053184"></a>
6130 </p><div class="blockquote"><blockquote class="blockquote"><p>
6131 Some public stations, as well as commercial stations, program the
6132 <span class="quote">«<span class="quote">Neighborhood</span>»</span> at hours when some children cannot use it. I think that
6133 it's a real service to families to be able to record such programs and
6134 show them at appropriate times. I have always felt that with the
6135 advent of all of this new technology that allows people to tape the
6136 <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>
6137 because that's what I produce, that they then become much more active
6138 in the programming of their family's television life. Very frankly, I
6139 am opposed to people being programmed by others. My whole approach in
6140 broadcasting has always been <span class="quote">«<span class="quote">You are an important person just the way
6141 you are. You can make healthy decisions.</span>»</span> Maybe I'm going on too long,
6142 but I just feel that anything that allows a person to be more active
6143 in the control of his or her life, in a healthy way, is
6144 important.<a href="#ftn.idp41057200" class="footnote" name="idp41057200"><sup class="footnote">[140]</sup></a>
6145 </p></blockquote></div><p>
6146
6147 Even though there were uses that were legal, because there were
6148 some uses that were illegal, the court held the companies producing
6149 the VCR responsible.
6150 </p><p>
6151 This led Conrad to draw the cartoon in figure
6152 <a class="xref" href="#fig-1711-vcr-handgun-cartoonfig" title="Figure 10.18. &#8212; On which item have the courts ruled that manufacturers and retailers be held responsible for having supplied the equipment?">10.18</a>, which we can adopt to the
6153 DMCA.
6154 <a class="indexterm" name="idp41064112"></a>
6155 </p><p>
6156 No argument I have can top this picture, but let me try to get close.
6157 </p><div class="figure-float" style="float: left;"><div class="figure"><a name="fig-1711-vcr-handgun-cartoonfig"></a><p class="title"><b>Figure 10.18. &#8212; On which item have the courts ruled that manufacturers and
6158 retailers be held responsible for having supplied the
6159 equipment?</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="55%"><tr><td align="center"><img src="images/vcr-comic.png" align="middle" width="100%" alt="&#8212; On which item have the courts ruled that manufacturers and retailers be held responsible for having supplied the equipment?"></td></tr></table></div></div></div><br class="figure-break"></div><p>
6160 The anticircumvention provisions of the DMCA target copyright
6161 circumvention technologies. Circumvention technologies can be used for
6162 different ends. They can be used, for example, to enable massive
6163 pirating of copyrighted material&#8212;a bad end. Or they can be used
6164 to enable the use of particular copyrighted materials in ways that
6165 would be considered fair use&#8212;a good end.
6166 </p><a class="indexterm" name="idxhandguns"></a><p>
6167 A handgun can be used to shoot a police officer or a child. Most
6168
6169 would agree such a use is bad. Or a handgun can be used for target
6170 practice or to protect against an intruder. At least some would say that
6171 such a use would be good. It, too, is a technology that has both good
6172 and bad uses.
6173 </p><a class="indexterm" name="idp41071584"></a><p>
6174 The obvious point of Conrad's cartoon is the weirdness of a world
6175 where guns are legal, despite the harm they can do, while VCRs (and
6176 circumvention technologies) are illegal. Flash: <span class="emphasis"><em>No one ever
6177 died from copyright circumvention</em></span>. Yet the law bans circumvention
6178 technologies absolutely, despite the potential that they might do some
6179 good, but permits guns, despite the obvious and tragic harm they do.
6180 </p><a class="indexterm" name="idp41073584"></a><a class="indexterm" name="idp41074896"></a><a class="indexterm" name="idp41076208"></a><a class="indexterm" name="idp41077024"></a><a class="indexterm" name="idp41077840"></a><p>
6181 The Aibo and RIAA examples demonstrate how copyright owners are
6182 changing the balance that copyright law grants. Using code, copyright
6183 owners restrict fair use; using the DMCA, they punish those who would
6184 attempt to evade the restrictions on fair use that they impose through
6185 code. Technology becomes a means by which fair use can be erased; the
6186 law of the DMCA backs up that erasing.
6187 </p><p>
6188 This is how <span class="emphasis"><em>code</em></span> becomes
6189 <span class="emphasis"><em>law</em></span>. The controls built into the technology of
6190 copy and access protection become rules the violation of which is also
6191 a violation of the law. In this way, the code extends the
6192 law&#8212;increasing its regulation, even if the subject it regulates
6193 (activities that would otherwise plainly constitute fair use) is
6194 beyond the reach of the law. Code becomes law; code extends the law;
6195 code thus extends the control that copyright owners effect&#8212;at
6196 least for those copyright holders with the lawyers who can write the
6197 nasty letters that Felten and aibopet.com received.
6198 </p><p>
6199 There is one final aspect of the interaction between architecture and
6200 law that contributes to the force of copyright's regulation. This is
6201 the ease with which infringements of the law can be detected. For
6202 contrary to the rhetoric common at the birth of cyberspace that on the
6203 Internet, no one knows you're a dog, increasingly, given changing
6204 technologies deployed on the Internet, it is easy to find the dog who
6205 committed a legal wrong. The technologies of the Internet are open to
6206 snoops as well as sharers, and the snoops are increasingly good at
6207 tracking down the identity of those who violate the rules.
6208 </p><p>
6209
6210
6211 For example, imagine you were part of a <em class="citetitle">Star Trek</em> fan club. You
6212 gathered every month to share trivia, and maybe to enact a kind of fan
6213 fiction about the show. One person would play Spock, another, Captain
6214 Kirk. The characters would begin with a plot from a real story, then
6215 simply continue it.<a href="#ftn.idp41083888" class="footnote" name="idp41083888"><sup class="footnote">[141]</sup></a>
6216 </p><p>
6217 Before the Internet, this was, in effect, a totally unregulated
6218 activity.  No matter what happened inside your club room, you would
6219 never be interfered with by the copyright police. You were free in
6220 that space to do as you wished with this part of our culture. You were
6221 allowed to build on it as you wished without fear of legal control.
6222 </p><a class="indexterm" name="idp41086608"></a><p>
6223 But if you moved your club onto the Internet, and made it generally
6224 available for others to join, the story would be very different. Bots
6225 scouring the Net for trademark and copyright infringement would
6226 quickly find your site. Your posting of fan fiction, depending upon
6227 the ownership of the series that you're depicting, could well inspire
6228 a lawyer's threat. And ignoring the lawyer's threat would be extremely
6229 costly indeed.  The law of copyright is extremely efficient. The
6230 penalties are severe, and the process is quick.
6231 </p><p>
6232 This change in the effective force of the law is caused by a change
6233 in the ease with which the law can be enforced. That change too shifts
6234 the law's balance radically. It is as if your car transmitted the speed at
6235 which you traveled at every moment that you drove; that would be just
6236 one step before the state started issuing tickets based upon the data you
6237 transmitted. That is, in effect, what is happening here.
6238 </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>
6239 So copyright's duration has increased dramatically&#8212;tripled in
6240 the past thirty years. And copyright's scope has increased as
6241 well&#8212;from regulating only publishers to now regulating just
6242 about everyone. And copyright's reach has changed, as every action
6243 becomes a copy and hence presumptively regulated. And as technologists
6244 find better ways
6245
6246 to control the use of content, and as copyright is increasingly
6247 enforced through technology, copyright's force changes, too. Misuse is
6248 easier to find and easier to control. This regulation of the creative
6249 process, which began as a tiny regulation governing a tiny part of the
6250 market for creative work, has become the single most important
6251 regulator of creativity there is. It is a massive expansion in the
6252 scope of the government's control over innovation and creativity; it
6253 would be totally unrecognizable to those who gave birth to copyright's
6254 control.
6255 </p><p>
6256 Still, in my view, all of these changes would not matter much if it
6257 weren't for one more change that we must also consider. This is a
6258 change that is in some sense the most familiar, though its significance
6259 and scope are not well understood. It is the one that creates precisely the
6260 reason to be concerned about all the other changes I have described.
6261 </p><p>
6262 This is the change in the concentration and integration of the media.
6263 In the past twenty years, the nature of media ownership has undergone
6264 a radical alteration, caused by changes in legal rules governing the
6265 media.  Before this change happened, the different forms of media were
6266 owned by separate media companies. Now, the media is increasingly
6267 owned by only a few companies. Indeed, after the changes that the FCC
6268 announced in June 2003, most expect that within a few years, we will
6269 live in a world where just three companies control more than 85 percent
6270 of the media.
6271 </p><p>
6272 These changes are of two sorts: the scope of concentration, and its
6273 nature.
6274 </p><a class="indexterm" name="idp41094304"></a><a class="indexterm" name="idp41095088"></a><a class="indexterm" name="idp41095920"></a><a class="indexterm" name="idp41096704"></a><a class="indexterm" name="idp41097520"></a><a class="indexterm" name="idp41098336"></a><p>
6275 Changes in scope are the easier ones to describe. As Senator John
6276 McCain summarized the data produced in the FCC's review of media
6277 ownership, <span class="quote">«<span class="quote">five companies control 85 percent of our media sources.</span>»</span><a href="#ftn.idp41099824" class="footnote" name="idp41099824"><sup class="footnote">[142]</sup></a>
6278 The five recording labels of Universal Music Group, BMG, Sony Music
6279 Entertainment, Warner Music Group, and EMI control 84.8 percent of the
6280 U.S. music market.<a href="#ftn.idp41101040" class="footnote" name="idp41101040"><sup class="footnote">[143]</sup></a>
6281 The <span class="quote">«<span class="quote">five largest cable companies pipe
6282 programming to 74 percent of the cable subscribers nationwide.</span>»</span><a href="#ftn.idp41103168" class="footnote" name="idp41103168"><sup class="footnote">[144]</sup></a>
6283 </p><a class="indexterm" name="idxradioownershipconsolidationin"></a><p>
6284 The story with radio is even more dramatic. Before deregulation,
6285 the nation's largest radio broadcasting conglomerate owned fewer than
6286
6287 seventy-five stations. Today <span class="emphasis"><em>one</em></span> company owns
6288 more than 1,200 stations.  During that period of consolidation, the
6289 total number of radio owners dropped by 34 percent. Today, in most
6290 markets, the two largest broadcasters control 74 percent of that
6291 market's revenues. Overall, just four companies control 90 percent of
6292 the nation's radio advertising revenues.
6293 </p><a class="indexterm" name="idp41108576"></a><a class="indexterm" name="idxnewspapersownershipconsolidationof"></a><p>
6294 Newspaper ownership is becoming more concentrated as well.  Today,
6295 there are six hundred fewer daily newspapers in the United States than
6296 there were eighty years ago, and ten companies control half of the
6297 nation's circulation. There are twenty major newspaper publishers in
6298 the United States. The top ten film studios receive 99 percent of all
6299 film revenue. The ten largest cable companies account for 85 percent
6300 of all cable revenue. This is a market far from the free press the
6301 framers sought to protect. Indeed, it is a market that is quite well
6302 protected&#8212; by the market.
6303 </p><a class="indexterm" name="idp41111520"></a><p>
6304 Concentration in size alone is one thing. The more invidious
6305 change is in the nature of that concentration. As author James Fallows
6306 put it in a recent article about Rupert Murdoch,
6307 </p><div class="blockquote"><blockquote class="blockquote"><p>
6308 Murdoch's companies now constitute a production system
6309 unmatched in its integration. They supply content&#8212;Fox movies
6310 &#8230;  Fox TV shows &#8230; Fox-controlled sports broadcasts, plus
6311 newspapers and books. They sell the content to the public and to
6312 advertisers&#8212;in newspapers, on the broadcast network, on the
6313 cable channels. And they operate the physical distribution system
6314 through which the content reaches the customers. Murdoch's satellite
6315 systems now distribute News Corp. content in Europe and Asia; if
6316 Murdoch becomes DirecTV's largest single owner, that system will serve
6317 the same function in the United States.<a href="#ftn.idp41114320" class="footnote" name="idp41114320"><sup class="footnote">[145]</sup></a>
6318 </p></blockquote></div><a class="indexterm" name="idp41117632"></a><a class="indexterm" name="idp41118976"></a><p>
6319 The pattern with Murdoch is the pattern of modern media. Not
6320 just large companies owning many radio stations, but a few companies
6321 owning as many outlets of media as possible. A picture describes this
6322 pattern better than a thousand words could do:
6323 </p><div class="figure"><a name="fig-1761-pattern-modern-media-ownership"></a><p class="title"><b>Figure 10.19. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="100%"><tr><td align="center"><img src="images/pattern-modern-media-ownership.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
6324
6325 Does this concentration matter? Will it affect what is made, or
6326 what is distributed? Or is it merely a more efficient way to produce and
6327 distribute content?
6328 </p><p>
6329 My view was that concentration wouldn't matter. I thought it was
6330 nothing more than a more efficient financial structure. But now, after
6331 reading and listening to a barrage of creators try to convince me to the
6332 contrary, I am beginning to change my mind.
6333 </p><p>
6334 Here's a representative story that begins to suggest how this
6335 integration may matter.
6336 </p><a class="indexterm" name="idp41125552"></a><a class="indexterm" name="idp41126336"></a><a class="indexterm" name="idp41127120"></a><p>
6337 In 1969, Norman Lear created a pilot for <em class="citetitle">All in the Family</em>. He took
6338 the pilot to ABC. The network didn't like it. It was too edgy, they told
6339 Lear. Make it again. Lear made a second pilot, more edgy than the
6340 first. ABC was exasperated. You're missing the point, they told Lear.
6341 We wanted less edgy, not more.
6342 </p><p>
6343 Rather than comply, Lear simply took the show elsewhere. CBS
6344 was happy to have the series; ABC could not stop Lear from walking.
6345 The copyrights that Lear held assured an independence from network
6346 control.<a href="#ftn.idp41129552" class="footnote" name="idp41129552"><sup class="footnote">[146]</sup></a>
6347 </p><p>
6348
6349
6350 The network did not control those copyrights because the law forbade
6351 the networks from controlling the content they syndicated. The law
6352 required a separation between the networks and the content producers;
6353 that separation would guarantee Lear freedom. And as late as 1992,
6354 because of these rules, the vast majority of prime time
6355 television&#8212;75 percent of it&#8212;was <span class="quote">«<span class="quote">independent</span>»</span> of the
6356 networks.
6357 </p><p>
6358 In 1994, the FCC abandoned the rules that required this independence.
6359 After that change, the networks quickly changed the balance.  In 1985,
6360 there were twenty-five independent television production studios; in
6361 2002, only five independent television studios remained. <span class="quote">«<span class="quote">In 1992,
6362 only 15 percent of new series were produced for a network by a company
6363 it controlled. Last year, the percentage of shows produced by
6364 controlled companies more than quintupled to 77 percent.</span>»</span> <span class="quote">«<span class="quote">In 1992, 16
6365 new series were produced independently of conglomerate control, last
6366 year there was one.</span>»</span><a href="#ftn.idp41136112" class="footnote" name="idp41136112"><sup class="footnote">[147]</sup></a>
6367 In 2002, 75 percent of prime time television was owned by the networks
6368 that ran it. <span class="quote">«<span class="quote">In the ten-year period between 1992 and 2002, the number
6369 of prime time television hours per week produced by network studios
6370 increased over 200%, whereas the number of prime time television hours
6371 per week produced by independent studios decreased
6372 63%.</span>»</span><a href="#ftn.idp41138656" class="footnote" name="idp41138656"><sup class="footnote">[148]</sup></a>
6373 </p><a class="indexterm" name="idp41139648"></a><p>
6374 Today, another Norman Lear with another <em class="citetitle">All in the Family</em> would
6375 find that he had the choice either to make the show less edgy or to be
6376 fired: The content of any show developed for a network is increasingly
6377 owned by the network.
6378 </p><a class="indexterm" name="idp41141520"></a><a class="indexterm" name="idp41142336"></a><p>
6379 While the number of channels has increased dramatically, the ownership
6380 of those channels has narrowed to an ever smaller and smaller few. As
6381 Barry Diller said to Bill Moyers,
6382 </p><div class="blockquote"><blockquote class="blockquote"><p>
6383 Well, if you have companies that produce, that finance, that air on
6384 their channel and then distribute worldwide everything that goes
6385 through their controlled distribution system, then what you get is
6386 fewer and fewer actual voices participating in the process. [We
6387
6388 u]sed to have dozens and dozens of thriving independent production
6389 companies producing television programs. Now you have less than a
6390 handful.<a href="#ftn.idp41145008" class="footnote" name="idp41145008"><sup class="footnote">[149]</sup></a>
6391 </p></blockquote></div><a class="indexterm" name="idp41147712"></a><p>
6392 This narrowing has an effect on what is produced. The product of such
6393 large and concentrated networks is increasingly homogenous.
6394 Increasingly safe. Increasingly sterile. The product of news shows
6395 from networks like this is increasingly tailored to the message the
6396 network wants to convey. This is not the communist party, though from
6397 the inside, it must feel a bit like the communist party. No one can
6398 question without risk of consequence&#8212;not necessarily banishment
6399 to Siberia, but punishment nonetheless. Independent, critical,
6400 different views are quashed. This is not the environment for a
6401 democracy.
6402 </p><a class="indexterm" name="idp41149072"></a><p>
6403 Economics itself offers a parallel that explains why this integration
6404 affects creativity. Clay Christensen has written about the <span class="quote">«<span class="quote">Innovator's
6405 Dilemma</span>»</span>: the fact that large traditional firms find it rational to ignore
6406 new, breakthrough technologies that compete with their core business.
6407 The same analysis could help explain why large, traditional media
6408 companies would find it rational to ignore new cultural trends.<a href="#ftn.idp41151776" class="footnote" name="idp41151776"><sup class="footnote">[150]</sup></a>
6409
6410 Lumbering giants not only don't, but should not, sprint. Yet if the
6411 field is only open to the giants, there will be far too little
6412 sprinting.
6413 <a class="indexterm" name="idp41155184"></a>
6414 </p><p>
6415 I don't think we know enough about the economics of the media
6416 market to say with certainty what concentration and integration will
6417 do. The efficiencies are important, and the effect on culture is hard to
6418 measure.
6419 </p><p>
6420 But there is a quintessentially obvious example that does strongly
6421 suggest the concern.
6422 </p><p>
6423 In addition to the copyright wars, we're in the middle of the drug
6424 wars. Government policy is strongly directed against the drug cartels;
6425 criminal and civil courts are filled with the consequences of this battle.
6426 </p><a class="indexterm" name="idp41157776"></a><p>
6427 Let me hereby disqualify myself from any possible appointment to
6428 any position in government by saying I believe this war is a profound
6429 mistake. I am not pro drugs. Indeed, I come from a family once
6430
6431
6432 wrecked by drugs&#8212;though the drugs that wrecked my family were
6433 all quite legal. I believe this war is a profound mistake because the
6434 collateral damage from it is so great as to make waging the war
6435 insane.  When you add together the burdens on the criminal justice
6436 system, the desperation of generations of kids whose only real
6437 economic opportunities are as drug warriors, the queering of
6438 constitutional protections because of the constant surveillance this
6439 war requires, and, most profoundly, the total destruction of the legal
6440 systems of many South American nations because of the power of the
6441 local drug cartels, I find it impossible to believe that the marginal
6442 benefit in reduced drug consumption by Americans could possibly
6443 outweigh these costs.
6444 </p><p>
6445 You may not be convinced. That's fine. We live in a democracy, and it
6446 is through votes that we are to choose policy. But to do that, we
6447 depend fundamentally upon the press to help inform Americans about
6448 these issues.
6449 </p><a class="indexterm" name="idxadvertising3"></a><a class="indexterm" name="idxcommercials"></a><a class="indexterm" name="idxtelevisionadvertisingon"></a><a class="indexterm" name="idp41165904"></a><p>
6450 Beginning in 1998, the Office of National Drug Control Policy launched
6451 a media campaign as part of the <span class="quote">«<span class="quote">war on drugs.</span>»</span> The campaign produced
6452 scores of short film clips about issues related to illegal drugs. In
6453 one series (the Nick and Norm series) two men are in a bar, discussing
6454 the idea of legalizing drugs as a way to avoid some of the collateral
6455 damage from the war. One advances an argument in favor of drug
6456 legalization. The other responds in a powerful and effective way
6457 against the argument of the first. In the end, the first guy changes
6458 his mind (hey, it's television). The plug at the end is a damning
6459 attack on the pro-legalization campaign.
6460 </p><p>
6461 Fair enough. It's a good ad. Not terribly misleading. It delivers its
6462 message well. It's a fair and reasonable message.
6463 </p><p>
6464 But let's say you think it is a wrong message, and you'd like to run a
6465 countercommercial. Say you want to run a series of ads that try to
6466 demonstrate the extraordinary collateral harm that comes from the drug
6467 war. Can you do it?
6468 </p><p>
6469 Well, obviously, these ads cost lots of money. Assume you raise the
6470
6471 money. Assume a group of concerned citizens donates all the money in
6472 the world to help you get your message out. Can you be sure your
6473 message will be heard then?
6474 </p><a class="indexterm" name="idp41170288"></a><a class="indexterm" name="idp41171360"></a><a class="indexterm" name="idp41172176"></a><a class="indexterm" name="idp41173296"></a><p>
6475 No. You cannot. Television stations have a general policy of avoiding
6476 <span class="quote">«<span class="quote">controversial</span>»</span> ads. Ads sponsored by the government are deemed
6477 uncontroversial; ads disagreeing with the government are
6478 controversial.  This selectivity might be thought inconsistent with
6479 the First Amendment, but the Supreme Court has held that stations have
6480 the right to choose what they run. Thus, the major channels of
6481 commercial media will refuse one side of a crucial debate the
6482 opportunity to present its case.  And the courts will defend the
6483 rights of the stations to be this biased.<a href="#ftn.idp41175648" class="footnote" name="idp41175648"><sup class="footnote">[151]</sup></a>
6484 </p><a class="indexterm" name="idp41188160"></a><a class="indexterm" name="idp41189408"></a><p>
6485 I'd be happy to defend the networks' rights, as well&#8212;if we lived
6486 in a media market that was truly diverse. But concentration in the
6487 media throws that condition into doubt. If a handful of companies
6488 control access to the media, and that handful of companies gets to
6489 decide which political positions it will allow to be promoted on its
6490 channels, then in an obvious and important way, concentration
6491 matters. You might like the positions the handful of companies
6492 selects. But you should not like a world in which a mere few get to
6493 decide which issues the rest of us get to know about.
6494 </p><a class="indexterm" name="idp41192464"></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>
6495 There is something innocent and obvious about the claim of the
6496 copyright warriors that the government should <span class="quote">«<span class="quote">protect my property.</span>»</span>
6497 In the abstract, it is obviously true and, ordinarily, totally
6498 harmless. No sane sort who is not an anarchist could disagree.
6499 </p><p>
6500 But when we see how dramatically this <span class="quote">«<span class="quote">property</span>»</span> has changed&#8212;
6501 when we recognize how it might now interact with both technology and
6502 markets to mean that the effective constraint on the liberty to
6503 cultivate our culture is dramatically different&#8212;the claim begins
6504 to seem
6505
6506
6507 less innocent and obvious. Given (1) the power of technology to
6508 supplement the law's control, and (2) the power of concentrated
6509 markets to weaken the opportunity for dissent, if strictly enforcing
6510 the massively expanded <span class="quote">«<span class="quote">property</span>»</span> rights granted by copyright
6511 fundamentally changes the freedom within this culture to cultivate and
6512 build upon our past, then we have to ask whether this property should
6513 be redefined.
6514 </p><p>
6515 Not starkly. Or absolutely. My point is not that we should abolish
6516 copyright or go back to the eighteenth century. That would be a total
6517 mistake, disastrous for the most important creative enterprises within
6518 our culture today.
6519 </p><p>
6520 But there is a space between zero and one, Internet culture
6521 notwithstanding.  And these massive shifts in the effective power of
6522 copyright regulation, tied to increased concentration of the content
6523 industry and resting in the hands of technology that will increasingly
6524 enable control over the use of culture, should drive us to consider
6525 whether another adjustment is called for. Not an adjustment that
6526 increases copyright's power. Not an adjustment that increases its
6527 term. Rather, an adjustment to restore the balance that has
6528 traditionally defined copyright's regulation&#8212;a weakening of that
6529 regulation, to strengthen creativity.
6530 </p><p>
6531 Copyright law has not been a rock of Gibraltar. It's not a set of
6532 constant commitments that, for some mysterious reason, teenagers and
6533 geeks now flout. Instead, copyright power has grown dramatically in a
6534 short period of time, as the technologies of distribution and creation
6535 have changed and as lobbyists have pushed for more control by
6536 copyright holders. Changes in the past in response to changes in
6537 technology suggest that we may well need similar changes in the
6538 future. And these changes have to be <span class="emphasis"><em>reductions</em></span>
6539 in the scope of copyright, in response to the extraordinary increase
6540 in control that technology and the market enable.
6541 </p><p>
6542 For the single point that is lost in this war on pirates is a point that
6543 we see only after surveying the range of these changes. When you add
6544
6545 together the effect of changing law, concentrated markets, and
6546 changing technology, together they produce an astonishing conclusion:
6547 <span class="emphasis"><em>Never in our history have fewer had a legal right to control
6548 more of the development of our culture than now</em></span>.
6549 </p><p>
6550 Not when copyrights were perpetual, for when copyrights were
6551 perpetual, they affected only that precise creative work. Not when
6552 only publishers had the tools to publish, for the market then was much
6553 more diverse. Not when there were only three television networks, for
6554 even then, newspapers, film studios, radio stations, and publishers
6555 were independent of the networks. <span class="emphasis"><em>Never</em></span> has
6556 copyright protected such a wide range of rights, against as broad a
6557 range of actors, for a term that was remotely as long. This form of
6558 regulation&#8212;a tiny regulation of a tiny part of the creative
6559 energy of a nation at the founding&#8212;is now a massive regulation
6560 of the overall creative process. Law plus technology plus the market
6561 now interact to turn this historically benign regulation into the most
6562 significant regulation of culture that our free society has
6563 known.<a href="#ftn.idp41204032" class="footnote" name="idp41204032"><sup class="footnote">[152]</sup></a>
6564 </p><p>
6565 <span class="strong"><strong>This has been</strong></span> a long chapter. Its
6566 point can now be briefly stated.
6567 </p><p>
6568 At the start of this book, I distinguished between commercial and
6569 noncommercial culture. In the course of this chapter, I have
6570 distinguished between copying a work and transforming it. We can now
6571 combine these two distinctions and draw a clear map of the changes
6572 that copyright law has undergone.  In 1790, the law looked like this:
6573 </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>
6574 The act of publishing a map, chart, and book was regulated by
6575 copyright law. Nothing else was. Transformations were free. And as
6576 copyright attached only with registration, and only those who intended
6577
6578
6579 to benefit commercially would register, copying through publishing of
6580 noncommercial work was also free.
6581 </p><p>
6582 By the end of the nineteenth century, the law had changed to this:
6583 </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>
6584 Derivative works were now regulated by copyright law&#8212;if
6585 published, which again, given the economics of publishing at the time,
6586 means if offered commercially. But noncommercial publishing and
6587 transformation were still essentially free.
6588 </p><p>
6589 In 1909 the law changed to regulate copies, not publishing, and after
6590 this change, the scope of the law was tied to technology. As the
6591 technology of copying became more prevalent, the reach of the law
6592 expanded.  Thus by 1975, as photocopying machines became more common,
6593 we could say the law began to look like this:
6594 </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>
6595 The law was interpreted to reach noncommercial copying through, say,
6596 copy machines, but still much of copying outside of the commercial
6597 market remained free. But the consequence of the emergence of digital
6598 technologies, especially in the context of a digital network, means
6599 that the law now looks like this:
6600 </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>
6601 Every realm is governed by copyright law, whereas before most
6602 creativity was not. The law now regulates the full range of
6603 creativity&#8212;
6604
6605 commercial or not, transformative or not&#8212;with the same rules
6606 designed to regulate commercial publishers.
6607 </p><p>
6608 Obviously, copyright law is not the enemy. The enemy is regulation
6609 that does no good. So the question that we should be asking just now
6610 is whether extending the regulations of copyright law into each of
6611 these domains actually does any good.
6612 </p><p>
6613 I have no doubt that it does good in regulating commercial copying.
6614 But I also have no doubt that it does more harm than good when
6615 regulating (as it regulates just now) noncommercial copying and,
6616 especially, noncommercial transformation. And increasingly, for the
6617 reasons sketched especially in chapters
6618 <a class="xref" href="#recorders" title="Chapter 7. Chapter Seven: Recorders">7</a> and
6619 <a class="xref" href="#transformers" title="Chapter 8. Chapter Eight: Transformers">8</a>, one
6620 might well wonder whether it does more harm than good for commercial
6621 transformation.  More commercial transformative work would be created
6622 if derivative rights were more sharply restricted.
6623 </p><p>
6624 The issue is therefore not simply whether copyright is property. Of
6625 course copyright is a kind of <span class="quote">«<span class="quote">property,</span>»</span> and of course, as with any
6626 property, the state ought to protect it. But first impressions
6627 notwithstanding, historically, this property right (as with all
6628 property rights<a href="#ftn.idp41246544" class="footnote" name="idp41246544"><sup class="footnote">[153]</sup></a>)
6629 has been crafted to balance the important need to give authors and
6630 artists incentives with the equally important need to assure access to
6631 creative work. This balance has always been struck in light of new
6632 technologies.  And for almost half of our tradition, the <span class="quote">«<span class="quote">copyright</span>»</span>
6633 did not control <span class="emphasis"><em>at all</em></span> the freedom of others to
6634 build upon or transform a creative work. American culture was born
6635 free, and for almost 180 years our country consistently protected a
6636 vibrant and rich free culture.
6637 </p><a class="indexterm" name="idp41250880"></a><p>
6638 We achieved that free culture because our law respected important
6639 limits on the scope of the interests protected by <span class="quote">«<span class="quote">property.</span>»</span> The very
6640 birth of <span class="quote">«<span class="quote">copyright</span>»</span> as a statutory right recognized those limits, by
6641 granting copyright owners protection for a limited time only (the
6642 story of chapter <a class="xref" href="#founders" title="Chapter 6. Chapter Six: Founders">6</a>). The tradition of <span class="quote">«<span class="quote">fair use</span>»</span> is
6643 animated by a similar concern that is increasingly under strain as the
6644 costs of exercising any fair use right become unavoidably high (the
6645 story of chapter <a class="xref" href="#recorders" title="Chapter 7. Chapter Seven: Recorders">7</a>). Adding
6646
6647 statutory rights where markets might stifle innovation is another
6648 familiar limit on the property right that copyright is (chapter <a class="xref" href="#transformers" title="Chapter 8. Chapter Eight: Transformers">8</a>). And
6649 granting archives and libraries a broad freedom to collect, claims of
6650 property notwithstanding, is a crucial part of guaranteeing the soul
6651 of a culture (chapter <a class="xref" href="#collectors" title="Chapter 9. Chapter Nine: Collectors">9</a>). Free cultures, like free markets, are built
6652 with property. But the nature of the property that builds a free
6653 culture is very different from the extremist vision that dominates the
6654 debate today.
6655 </p><p>
6656 Free culture is increasingly the casualty in this war on piracy. In
6657 response to a real, if not yet quantified, threat that the
6658 technologies of the Internet present to twentieth-century business
6659 models for producing and distributing culture, the law and technology
6660 are being transformed in a way that will undermine our tradition of
6661 free culture. The property right that is copyright is no longer the
6662 balanced right that it was, or was intended to be. The property right
6663 that is copyright has become unbalanced, tilted toward an extreme. The
6664 opportunity to create and transform becomes weakened in a world in
6665 which creation requires permission and creativity must check with a
6666 lawyer.
6667 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp40369024" class="footnote"><p><a href="#idp40369024" class="para"><sup class="para">[118] </sup></a>
6668
6669 Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R.
6670 4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the
6671 Subcommittee on Courts, Civil Liberties, and the Administration of
6672 Justice of the Committee on the Judiciary of the House of
6673 Representatives, 97th Cong., 2nd sess. (1982): 65 (testimony of Jack
6674 Valenti).
6675 </p></div><div id="ftn.idp40377728" class="footnote"><p><a href="#idp40377728" class="para"><sup class="para">[119] </sup></a>
6676
6677 Lawyers speak of <span class="quote">«<span class="quote">property</span>»</span> not as an absolute thing, but as a bundle
6678 of rights that are sometimes associated with a particular
6679 object. Thus, my <span class="quote">«<span class="quote">property right</span>»</span> to my car gives me the right to
6680 exclusive use, but not the right to drive at 150 miles an hour. For
6681 the best effort to connect the ordinary meaning of <span class="quote">«<span class="quote">property</span>»</span> to
6682 <span class="quote">«<span class="quote">lawyer talk,</span>»</span> see Bruce Ackerman, <em class="citetitle">Private Property and the
6683 Constitution</em> (New Haven: Yale University Press, 1977), 26&#8211;27.
6684 </p></div><div id="ftn.idp40441408" class="footnote"><p><a href="#idp40441408" class="para"><sup class="para">[120] </sup></a>
6685
6686 By describing the way law affects the other three modalities, I don't
6687 mean to suggest that the other three don't affect law. Obviously, they
6688 do. Law's only distinction is that it alone speaks as if it has a
6689 right self-consciously to change the other three. The right of the
6690 other three is more timidly expressed.  See Lawrence Lessig, <em class="citetitle">Code: And
6691 Other Laws of Cyberspace</em> (New York: Basic Books, 1999): 90&#8211;95;
6692 Lawrence Lessig, <span class="quote">«<span class="quote">The New Chicago School,</span>»</span> <em class="citetitle">Journal of Legal Studies</em>,
6693 June 1998.
6694 <a class="indexterm" name="idp40443856"></a>
6695 </p></div><div id="ftn.idp40452368" class="footnote"><p><a href="#idp40452368" class="para"><sup class="para">[121] </sup></a>
6696
6697 Some people object to this way of talking about <span class="quote">«<span class="quote">liberty.</span>»</span> They object
6698 because their focus when considering the constraints that exist at any
6699 particular moment are constraints imposed exclusively by the
6700 government. For instance, if a storm destroys a bridge, these people
6701 think it is meaningless to say that one's liberty has been
6702 restrained. A bridge has washed out, and it's harder to get from one
6703 place to another. To talk about this as a loss of freedom, they say,
6704 is to confuse the stuff of politics with the vagaries of ordinary
6705 life.  I don't mean to deny the value in this narrower view, which
6706 depends upon the context of the inquiry. I do, however, mean to argue
6707 against any insistence that this narrower view is the only proper view
6708 of liberty. As I argued in <em class="citetitle">Code</em>, we come from a
6709 long tradition of political thought with a broader focus than the
6710 narrow question of what the government did when.  John Stuart Mill
6711 defended freedom of speech, for example, from the tyranny of narrow
6712 minds, not from the fear of government prosecution; John Stuart Mill,
6713 <em class="citetitle">On Liberty</em> (Indiana: Hackett Publishing Co.,
6714 1978), 19.  John R. Commons famously defended the economic freedom of
6715 labor from constraints imposed by the market; John R. Commons, <span class="quote">«<span class="quote">The
6716 Right to Work,</span>»</span> in Malcom Rutherford and Warren J. Samuels, eds.,
6717 <em class="citetitle">John R. Commons: Selected Essays</em> (London:
6718 Routledge: 1997), 62. The Americans with Disabilities Act increases
6719 the liberty of people with physical disabilities by changing the
6720 architecture of certain public places, thereby making access to those
6721 places easier; 42 <em class="citetitle">United States Code</em>, section
6722 12101 (2000).  Each of these interventions to change existing
6723 conditions changes the liberty of a particular group. The effect of
6724 those interventions should be accounted for in order to understand the
6725 effective liberty that each of these groups might face.
6726 <a class="indexterm" name="idp40457552"></a>
6727 <a class="indexterm" name="idp40458384"></a>
6728 <a class="indexterm" name="idp40459200"></a>
6729 <a class="indexterm" name="idp40460048"></a>
6730 <a class="indexterm" name="idp40460864"></a>
6731 </p></div><div id="ftn.idp40510304" class="footnote"><p><a href="#idp40510304" class="para"><sup class="para">[122] </sup></a>
6732
6733 See Geoffrey Smith, <span class="quote">«<span class="quote">Film vs. Digital: Can Kodak Build a Bridge?</span>»</span>
6734 BusinessWeek online, 2 August 1999, available at
6735 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #23</a>. For a more
6736 recent analysis of Kodak's place in the market, see Chana
6737 R. Schoenberger, <span class="quote">«<span class="quote">Can Kodak Make Up for Lost Moments?</span>»</span> Forbes.com, 6
6738 October 2003, available at
6739 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #24</a>.
6740 </p></div><div id="ftn.idp40523440" class="footnote"><p><a href="#idp40523440" class="para"><sup class="para">[123] </sup></a>
6741
6742 Fred Warshofsky, <em class="citetitle">The Patent Wars</em> (New York: Wiley, 1994), 170&#8211;71.
6743 </p></div><div id="ftn.idp40554144" class="footnote"><p><a href="#idp40554144" class="para"><sup class="para">[124] </sup></a>
6744
6745 See, for example, James Boyle, <span class="quote">«<span class="quote">A Politics of Intellectual Property:
6746 Environmentalism for the Net?</span>»</span> <em class="citetitle">Duke Law Journal</em> 47 (1997): 87.
6747 </p></div><div id="ftn.idp40623936" class="footnote"><p><a href="#idp40623936" class="para"><sup class="para">[125] </sup></a>
6748
6749 William W. Crosskey, <em class="citetitle">Politics and the Constitution in the
6750 History of the United States</em> (London: Cambridge University
6751 Press, 1953), vol. 1, 485&#8211;86: <span class="quote">«<span class="quote">extinguish[ing], by plain
6752 implication of <span class="quote">&#8216;<span class="quote">the supreme Law of the Land,</span>&#8217;</span>
6753 <span class="emphasis"><em>the perpetual rights which authors had, or were supposed by
6754 some to have, under the Common Law</em></span></span>»</span> (emphasis
6755 added).
6756 <a class="indexterm" name="idp40626624"></a>
6757 </p></div><div id="ftn.idp40636192" class="footnote"><p><a href="#idp40636192" class="para"><sup class="para">[126] </sup></a>
6758
6759 Although 13,000 titles were published in the United States from 1790
6760 to 1799, only 556 copyright registrations were filed; John Tebbel, <em class="citetitle">A
6761 History of Book Publishing in the United States</em>, vol. 1, <em class="citetitle">The Creation
6762 of an Industry, 1630&#8211;1865</em> (New York: Bowker, 1972), 141. Of the 21,000
6763 imprints recorded before 1790, only twelve were copyrighted under the
6764 1790 act; William J. Maher, <em class="citetitle">Copyright Term, Retrospective Extension
6765 and the Copyright Law of 1790 in Historical Context</em>, 7&#8211;10 (2002),
6766 available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
6767 #25</a>.  Thus, the overwhelming majority of works fell
6768 immediately into the public domain. Even those works that were
6769 copyrighted fell into the public domain quickly, because the term of
6770 copyright was short. The initial term of copyright was fourteen years,
6771 with the option of renewal for an additional fourteen years. Copyright
6772 Act of May 31, 1790, §1, 1 stat. 124.  </p></div><div id="ftn.idp40644592" class="footnote"><p><a href="#idp40644592" class="para"><sup class="para">[127] </sup></a>
6773
6774 Few copyright holders ever chose to renew their copyrights. For
6775 instance, of the 25,006 copyrights registered in 1883, only 894 were
6776 renewed in 1910. For a year-by-year analysis of copyright renewal
6777 rates, see Barbara A. Ringer, <span class="quote">«<span class="quote">Study No. 31: Renewal of Copyright,</span>»</span>
6778 <em class="citetitle">Studies on Copyright</em>, vol. 1 (New York: Practicing Law Institute,
6779 1963), 618. For a more recent and comprehensive analysis, see William
6780 M. Landes and Richard A.  Posner, <span class="quote">«<span class="quote">Indefinitely Renewable Copyright,</span>»</span>
6781 <em class="citetitle">University of Chicago Law Review</em> 70 (2003): 471, 498&#8211;501, and
6782 accompanying figures.  </p></div><div id="ftn.idp40651664" class="footnote"><p><a href="#idp40651664" class="para"><sup class="para">[128] </sup></a>
6783
6784 See Ringer, ch. 9, n. 2.  </p></div><div id="ftn.idp40679696" class="footnote"><p><a href="#idp40679696" class="para"><sup class="para">[129] </sup></a>
6785
6786 These statistics are understated. Between the years 1910 and 1962 (the
6787 first year the renewal term was extended), the average term was never
6788 more than thirty-two years, and averaged thirty years. See Landes and
6789 Posner, <span class="quote">«<span class="quote">Indefinitely Renewable Copyright,</span>»</span> loc. cit.
6790 </p></div><div id="ftn.idp40719408" class="footnote"><p><a href="#idp40719408" class="para"><sup class="para">[130] </sup></a>
6791
6792 See Thomas Bender and David Sampliner, <span class="quote">«<span class="quote">Poets, Pirates, and the
6793 Creation of American Literature,</span>»</span> 29 <em class="citetitle">New York University Journal of
6794 International Law and Politics</em> 255 (1997), and James Gilraeth, ed.,
6795 Federal Copyright Records, 1790&#8211;1800 (U.S. G.P.O., 1987).
6796
6797 </p></div><div id="ftn.idp40736528" class="footnote"><p><a href="#idp40736528" class="para"><sup class="para">[131] </sup></a>
6798
6799 Jonathan Zittrain, <span class="quote">«<span class="quote">The Copyright Cage,</span>»</span> <em class="citetitle">Legal
6800 Affairs</em>, July/August 2003, available at
6801 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #26</a>.
6802 <a class="indexterm" name="idp40739024"></a>
6803 </p></div><div id="ftn.idp40740752" class="footnote"><p><a href="#idp40740752" class="para"><sup class="para">[132] </sup></a>
6804
6805 Professor Rubenfeld has presented a powerful constitutional argument
6806 about the difference that copyright law should draw (from the
6807 perspective of the First Amendment) between mere <span class="quote">«<span class="quote">copies</span>»</span> and
6808 derivative works. See Jed Rubenfeld, <span class="quote">«<span class="quote">The Freedom of Imagination:
6809 Copyright's Constitutionality,</span>»</span> <em class="citetitle">Yale Law
6810 Journal</em> 112 (2002): 1&#8211;60 (see especially
6811 pp. 53&#8211;59).
6812 <a class="indexterm" name="idp40742896"></a>
6813 </p></div><div id="ftn.idp40756928" class="footnote"><p><a href="#idp40756928" class="para"><sup class="para">[133] </sup></a>
6814
6815 This is a simplification of the law, but not much of one. The law
6816 certainly regulates more than <span class="quote">«<span class="quote">copies</span>»</span>&#8212;a public performance of a
6817 copyrighted song, for example, is regulated even though performance
6818 per se doesn't make a copy; 17 <em class="citetitle">United States Code</em>, section
6819 106(4). And it certainly sometimes doesn't regulate a <span class="quote">«<span class="quote">copy</span>»</span>; 17
6820 <em class="citetitle">United States Code</em>, section 112(a). But the presumption under the
6821 existing law (which regulates <span class="quote">«<span class="quote">copies;</span>»</span> 17 <em class="citetitle">United States Code</em>, section
6822 102) is that if there is a copy, there is a right.
6823 </p></div><div id="ftn.idp40769936" class="footnote"><p><a href="#idp40769936" class="para"><sup class="para">[134] </sup></a>
6824
6825 Thus, my argument is not that in each place that copyright law
6826 extends, we should repeal it. It is instead that we should have a good
6827 argument for its extending where it does, and should not determine its
6828 reach on the basis of arbitrary and automatic changes caused by
6829 technology.
6830 </p></div><div id="ftn.idp40820016" class="footnote"><p><a href="#idp40820016" class="para"><sup class="para">[135] </sup></a>
6831
6832 I don't mean <span class="quote">«<span class="quote">nature</span>»</span> in the sense that it couldn't be different, but
6833 rather that its present instantiation entails a copy. Optical networks
6834 need not make copies of content they transmit, and a digital network
6835 could be designed to delete anything it copies so that the same number
6836 of copies remain.
6837 </p></div><div id="ftn.idp40917920" class="footnote"><p><a href="#idp40917920" class="para"><sup class="para">[136] </sup></a>
6838
6839 See David Lange, <span class="quote">«<span class="quote">Recognizing the Public Domain,</span>»</span> <em class="citetitle">Law and
6840 Contemporary Problems</em> 44 (1981): 172&#8211;73.
6841 </p></div><div id="ftn.idp40920512" class="footnote"><p><a href="#idp40920512" class="para"><sup class="para">[137] </sup></a>
6842
6843 <a class="indexterm" name="idp40921216"></a>
6844 Ibid. See also Vaidhyanathan, <em class="citetitle">Copyrights and
6845 Copywrongs</em>, 1&#8211;3.
6846 </p></div><div id="ftn.idp40960368" class="footnote"><p><a href="#idp40960368" class="para"><sup class="para">[138] </sup></a>
6847
6848 In principle, a contract might impose a requirement on me. I might,
6849 for example, buy a book from you that includes a contract that says I
6850 will read it only three times, or that I promise to read it three
6851 times. But that obligation (and the limits for creating that
6852 obligation) would come from the contract, not from copyright law, and
6853 the obligations of contract would not necessarily pass to anyone who
6854 subsequently acquired the book.
6855 <a class="indexterm" name="idp40961952"></a>
6856 </p></div><div id="ftn.idp41013344" class="footnote"><p><a href="#idp41013344" class="para"><sup class="para">[139] </sup></a>
6857
6858 See Pamela Samuelson, <span class="quote">«<span class="quote">Anticircumvention Rules: Threat to Science,</span>»</span>
6859 <em class="citetitle">Science</em> 293 (2001): 2028; Brendan I. Koerner, <span class="quote">«<span class="quote">Play Dead: Sony Muzzles
6860 the Techies Who Teach a Robot Dog New Tricks,</span>»</span> <em class="citetitle">American Prospect</em>,
6861 January 2002; <span class="quote">«<span class="quote">Court Dismisses Computer Scientists' Challenge to
6862 DMCA,</span>»</span> <em class="citetitle">Intellectual Property Litigation Reporter</em>, 11 December 2001; Bill
6863 Holland, <span class="quote">«<span class="quote">Copyright Act Raising Free-Speech Concerns,</span>»</span> <em class="citetitle">Billboard</em>,
6864 May 2001; Janelle Brown, <span class="quote">«<span class="quote">Is the RIAA Running Scared?</span>»</span> Salon.com,
6865 April  2001; Electronic Frontier Foundation, <span class="quote">«<span class="quote">Frequently Asked
6866 Questions about <em class="citetitle">Felten and USENIX</em> v. <em class="citetitle">RIAA</em> Legal Case,</span>»</span> available at
6867 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #27</a>.
6868 <a class="indexterm" name="idp41020224"></a>
6869 </p></div><div id="ftn.idp41057200" class="footnote"><p><a href="#idp41057200" class="para"><sup class="para">[140] </sup></a>
6870
6871 <a class="indexterm" name="idp41057936"></a>
6872 <em class="citetitle">Sony Corporation of America</em> v. <em class="citetitle">Universal City Studios, Inc</em>., 464 U.S. 417,
6873 455 fn. 27 (1984). Rogers never changed his view about the VCR. See
6874 James Lardner, <em class="citetitle">Fast Forward: Hollywood, the Japanese, and the Onslaught of
6875 the VCR</em> (New York: W. W. Norton, 1987), 270&#8211;71.
6876 <a class="indexterm" name="idp40922512"></a>
6877 </p></div><div id="ftn.idp41083888" class="footnote"><p><a href="#idp41083888" class="para"><sup class="para">[141] </sup></a>
6878
6879 For an early and prescient analysis, see Rebecca Tushnet, <span class="quote">«<span class="quote">Legal Fictions,
6880 Copyright, Fan Fiction, and a New Common Law,</span>»</span> <em class="citetitle">Loyola of Los Angeles
6881 Entertainment Law Journal</em> 17 (1997): 651.
6882 </p></div><div id="ftn.idp41099824" class="footnote"><p><a href="#idp41099824" class="para"><sup class="para">[142] </sup></a>
6883
6884 FCC Oversight: Hearing Before the Senate Commerce, Science and
6885 Transportation Committee, 108th Cong., 1st sess. (22 May 2003)
6886 (statement of Senator John McCain).  </p></div><div id="ftn.idp41101040" class="footnote"><p><a href="#idp41101040" class="para"><sup class="para">[143] </sup></a>
6887
6888 Lynette Holloway, <span class="quote">«<span class="quote">Despite a Marketing Blitz, CD Sales Continue to
6889 Slide,</span>»</span> <em class="citetitle">New York Times</em>, 23 December 2002.
6890 </p></div><div id="ftn.idp41103168" class="footnote"><p><a href="#idp41103168" class="para"><sup class="para">[144] </sup></a>
6891
6892 Molly Ivins, <span class="quote">«<span class="quote">Media Consolidation Must Be Stopped,</span>»</span> <em class="citetitle">Charleston Gazette</em>,
6893 31 May 2003.
6894 </p></div><div id="ftn.idp41114320" class="footnote"><p><a href="#idp41114320" class="para"><sup class="para">[145] </sup></a>
6895
6896 James Fallows, <span class="quote">«<span class="quote">The Age of Murdoch,</span>»</span> <em class="citetitle">Atlantic Monthly</em> (September
6897 2003): 89.
6898 <a class="indexterm" name="idp41116432"></a>
6899 </p></div><div id="ftn.idp41129552" class="footnote"><p><a href="#idp41129552" class="para"><sup class="para">[146] </sup></a>
6900
6901 Leonard Hill, <span class="quote">«<span class="quote">The Axis of Access,</span>»</span> remarks before Weidenbaum Center
6902 Forum, <span class="quote">«<span class="quote">Entertainment Economics: The Movie Industry,</span>»</span> St. Louis,
6903 Missouri, 3 April 2003 (transcript of prepared remarks available at
6904 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #28</a>;
6905 for the Lear story, not included in the prepared remarks, see
6906 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #29</a>).
6907 </p></div><div id="ftn.idp41136112" class="footnote"><p><a href="#idp41136112" class="para"><sup class="para">[147] </sup></a>
6908
6909 NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media
6910 Ownership Before the Senate Commerce Committee, 108th Cong., 1st
6911 sess. (2003) (testimony of Gene Kimmelman on behalf of Consumers Union
6912 and the Consumer Federation of America), available at
6913 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #30</a>. Kimmelman
6914 quotes Victoria Riskin, president of Writers Guild of America, West,
6915 in her Remarks at FCC En Banc Hearing, Richmond, Virginia, 27 February
6916 2003.
6917 </p></div><div id="ftn.idp41138656" class="footnote"><p><a href="#idp41138656" class="para"><sup class="para">[148] </sup></a>
6918
6919 Ibid.
6920 </p></div><div id="ftn.idp41145008" class="footnote"><p><a href="#idp41145008" class="para"><sup class="para">[149] </sup></a>
6921
6922 <span class="quote">«<span class="quote">Barry Diller Takes on Media Deregulation,</span>»</span> <em class="citetitle">Now with Bill Moyers</em>, Bill
6923 Moyers, 25 April 2003, edited transcript available at
6924 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #31</a>.
6925 </p></div><div id="ftn.idp41151776" class="footnote"><p><a href="#idp41151776" class="para"><sup class="para">[150] </sup></a>
6926
6927 Clayton M. Christensen, <em class="citetitle">The Innovator's Dilemma: The
6928 Revolutionary National Bestseller that Changed the Way We Do Business</em>
6929 (Cambridge: Harvard Business School Press, 1997). Christensen
6930 acknowledges that the idea was first suggested by Dean Kim Clark. See
6931 Kim B. Clark, <span class="quote">«<span class="quote">The Interaction of Design Hierarchies and Market
6932 Concepts in Technological Evolution,</span>»</span> <em class="citetitle">Research Policy</em> 14 (1985):
6933 235&#8211;51. For a more recent study, see Richard Foster and Sarah
6934 Kaplan, <em class="citetitle">Creative Destruction: Why Companies That Are Built to Last
6935 Underperform the Market&#8212;and How to Successfully Transform Them</em>
6936 (New York: Currency/Doubleday, 2001).  </p></div><div id="ftn.idp41175648" class="footnote"><p><a href="#idp41175648" class="para"><sup class="para">[151] </sup></a>
6937
6938 <a class="indexterm" name="idp41176384"></a>
6939 <a class="indexterm" name="idp41177136"></a>
6940 <a class="indexterm" name="idp41177952"></a>
6941 <a class="indexterm" name="idp41178784"></a>
6942 <a class="indexterm" name="idp41179568"></a>
6943 <a class="indexterm" name="idp41180384"></a>
6944 <a class="indexterm" name="idp41181216"></a>
6945 The Marijuana Policy Project, in February 2003, sought to place ads
6946 that directly responded to the Nick and Norm series on stations within
6947 the Washington, D.C., area. Comcast rejected the ads as <span class="quote">«<span class="quote">against
6948 [their] policy.</span>»</span>  The local NBC affiliate, WRC, rejected the ads
6949 without reviewing them. The local ABC affiliate, WJOA, originally
6950 agreed to run the ads and accepted payment to do so, but later decided
6951 not to run the ads and returned the collected fees. Interview with
6952 Neal Levine, 15 October 2003.  These restrictions are, of course, not
6953 limited to drug policy. See, for example, Nat Ives, <span class="quote">«<span class="quote">On the
6954 Issue of an Iraq War, Advocacy Ads Meet with Rejection from TV
6955 Networks,</span>»</span> <em class="citetitle">New York Times</em>, 13 March
6956 2003, C4.  Outside of election-related air time there is very little
6957 that the FCC or the courts are willing to do to even the playing
6958 field. For a general overview, see Rhonda Brown, <span class="quote">«<span class="quote">Ad Hoc Access:
6959 The Regulation of Editorial Advertising on Television and
6960 Radio,</span>»</span> <em class="citetitle">Yale Law and Policy Review</em> 6
6961 (1988): 449&#8211;79, and for a more recent summary of the stance of
6962 the FCC and the courts, see <em class="citetitle">Radio-Television News Directors
6963 Association</em> v. <em class="citetitle">FCC</em>, 184 F. 3d 872
6964 (D.C. Cir. 1999). Municipal authorities exercise the same authority as
6965 the networks. In a recent example from San Francisco, the San
6966 Francisco transit authority rejected an ad that criticized its Muni
6967 diesel buses. Phillip Matier and Andrew Ross, <span class="quote">«<span class="quote">Antidiesel Group
6968 Fuming After Muni Rejects Ad,</span>»</span> SFGate.com, 16 June 2003,
6969 available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
6970 #32</a>. The ground was that the criticism was <span class="quote">«<span class="quote">too
6971 controversial.</span>»</span>
6972 </p></div><div id="ftn.idp41204032" class="footnote"><p><a href="#idp41204032" class="para"><sup class="para">[152] </sup></a>
6973
6974 <a class="indexterm" name="idp41205104"></a>
6975 Siva Vaidhyanathan captures a similar point in his <span class="quote">«<span class="quote">four surrenders</span>»</span> of
6976 copyright law in the digital age. See Vaidhyanathan, 159&#8211;60.
6977 </p></div><div id="ftn.idp41246544" class="footnote"><p><a href="#idp41246544" class="para"><sup class="para">[153] </sup></a>
6978
6979 <a class="indexterm" name="idp41247280"></a>
6980 It was the single most important contribution of the legal realist
6981 movement to demonstrate that all property rights are always crafted to
6982 balance public and private interests. See Thomas C. Grey, <span class="quote">«<span class="quote">The
6983 Disintegration of Property,</span>»</span> in <em class="citetitle">Nomos XXII: Property</em>, J. Roland
6984 Pennock and John W.  Chapman, eds. (New York: New York University
6985 Press, 1980).
6986 </p></div></div></div></div><div class="part"><div class="titlepage"><div><div><h1 class="title"><a name="c-puzzles"></a>Part III. Puzzles</h1></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="chimera"></a>Chapter 11. Chapter Eleven: Chimera</h2></div></div></div><a class="indexterm" name="idxchimera"></a><a class="indexterm" name="idxwells"></a><a class="indexterm" name="idxtcotb"></a><p>
6987 <span class="strong"><strong>In a well-known</strong></span> short story by
6988 H. G. Wells, a mountain climber named Nunez trips (literally, down an
6989 ice slope) into an unknown and isolated valley in the Peruvian
6990 Andes.<a href="#ftn.idp41268976" class="footnote" name="idp41268976"><sup class="footnote">[154]</sup></a>
6991 The valley is extraordinarily beautiful, with <span class="quote">«<span class="quote">sweet water, pasture,
6992 an even climate, slopes of rich brown soil with tangles of a shrub
6993 that bore an excellent fruit.</span>»</span> But the villagers are all blind. Nunez
6994 takes this as an opportunity. <span class="quote">«<span class="quote">In the Country of the Blind,</span>»</span> he tells
6995 himself, <span class="quote">«<span class="quote">the One-Eyed Man is King.</span>»</span>  So he resolves to live with the
6996 villagers to explore life as a king.
6997 </p><p>
6998 Things don't go quite as he planned. He tries to explain the idea of
6999 sight to the villagers. They don't understand. He tells them they are
7000 <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.
7001 Indeed, as they increasingly notice the things he can't do (hear the
7002 sound of grass being stepped on, for example), they increasingly try
7003 to control him. He, in turn, becomes increasingly frustrated. <span class="quote">«<span class="quote"><span class="quote">&#8216;<span class="quote">You
7004 don't understand,</span>&#8217;</span> he cried, in a voice that was meant to be great and
7005 resolute, and which broke. <span class="quote">&#8216;<span class="quote">You are blind and I can see. Leave me
7006 alone!</span>&#8217;</span></span>»</span>
7007 </p><p>
7008
7009 The villagers don't leave him alone. Nor do they see (so to speak) the
7010 virtue of his special power. Not even the ultimate target of his
7011 affection, a young woman who to him seems <span class="quote">«<span class="quote">the most beautiful thing in
7012 the whole of creation,</span>»</span> understands the beauty of sight. Nunez's
7013 description of what he sees <span class="quote">«<span class="quote">seemed to her the most poetical of
7014 fancies, and she listened to his description of the stars and the
7015 mountains and her own sweet white-lit beauty as though it was a guilty
7016 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
7017 only half understand, but she was mysteriously delighted.</span>»</span>
7018 </p><p>
7019 When Nunez announces his desire to marry his <span class="quote">«<span class="quote">mysteriously delighted</span>»</span>
7020 love, the father and the village object. <span class="quote">«<span class="quote">You see, my dear,</span>»</span> her
7021 father instructs, <span class="quote">«<span class="quote">he's an idiot. He has delusions. He can't do
7022 anything right.</span>»</span> They take Nunez to the village doctor.
7023 </p><p>
7024 After a careful examination, the doctor gives his opinion. <span class="quote">«<span class="quote">His brain
7025 is affected,</span>»</span> he reports.
7026 </p><p>
7027 <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
7028 called the eyes &#8230; are diseased &#8230; in such a way as to affect
7029 his brain.</span>»</span>
7030 </p><p>
7031 The doctor continues: <span class="quote">«<span class="quote">I think I may say with reasonable certainty
7032 that in order to cure him completely, all that we need to do is a
7033 simple and easy surgical operation&#8212;namely, to remove these
7034 irritant bodies [the eyes].</span>»</span>
7035 </p><p>
7036 <span class="quote">«<span class="quote">Thank Heaven for science!</span>»</span> says the father to the doctor. They inform
7037 Nunez of this condition necessary for him to be allowed his bride.
7038 (You'll have to read the original to learn what happens in the end. I
7039 believe in free culture, but never in giving away the end of a story.)
7040 </p><p>
7041 <span class="strong"><strong>It sometimes</strong></span> happens that the eggs
7042 of twins fuse in the mother's womb. That fusion produces a
7043 <span class="quote">«<span class="quote">chimera.</span>»</span> A chimera is a single creature with two sets
7044 of DNA. The DNA in the blood, for example, might be different from the
7045 DNA of the skin. This possibility is an underused
7046
7047
7048 plot for murder mysteries. <span class="quote">«<span class="quote">But the DNA shows with 100 percent
7049 certainty that she was not the person whose blood was at the
7050 scene. &#8230;</span>»</span>
7051 </p><a class="indexterm" name="idp41287344"></a><a class="indexterm" name="idp41288448"></a><p>
7052 Before I had read about chimeras, I would have said they were
7053 impossible.  A single person can't have two sets of DNA. The very idea
7054 of DNA is that it is the code of an individual. Yet in fact, not only
7055 can two individuals have the same set of DNA (identical twins), but
7056 one person can have two different sets of DNA (a chimera). Our
7057 understanding of a <span class="quote">«<span class="quote">person</span>»</span> should reflect this reality.
7058 </p><p>
7059 The more I work to understand the current struggle over copyright and
7060 culture, which I've sometimes called unfairly, and sometimes not
7061 unfairly enough, <span class="quote">«<span class="quote">the copyright wars,</span>»</span> the more I think we're dealing
7062 with a chimera. For example, in the battle over the question <span class="quote">«<span class="quote">What is
7063 p2p file sharing?</span>»</span> both sides have it right, and both sides have it
7064 wrong.  One side says, <span class="quote">«<span class="quote">File sharing is just like two kids taping each
7065 others' records&#8212;the sort of thing we've been doing for the last
7066 thirty years without any question at all.</span>»</span> That's true, at least in
7067 part. When I tell my best friend to try out a new CD that I've bought,
7068 but rather than just send the CD, I point him to my p2p server, that
7069 is, in all relevant respects, just like what every executive in every
7070 recording company no doubt did as a kid: sharing music.
7071 </p><p>
7072 But the description is also false in part. For when my p2p server is
7073 on a p2p network through which anyone can get access to my music, then
7074 sure, my friends can get access, but it stretches the meaning of
7075 <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
7076 get access. Whether or not sharing my music with my best friend is
7077 what <span class="quote">«<span class="quote">we have always been allowed to do,</span>»</span> we have not always been
7078 allowed to share music with <span class="quote">«<span class="quote">our ten thousand best friends.</span>»</span>
7079 </p><p>
7080 Likewise, when the other side says, <span class="quote">«<span class="quote">File sharing is just like walking
7081 into a Tower Records and taking a CD off the shelf and walking out
7082 with it,</span>»</span> that's true, at least in part. If, after Lyle Lovett
7083 (finally) releases a new album, rather than buying it, I go to Kazaa
7084 and find a free copy to take, that is very much like stealing a copy
7085 from Tower.
7086 <a class="indexterm" name="idp41297040"></a>
7087 </p><p>
7088
7089
7090 But it is not quite stealing from Tower. After all, when I take a CD
7091 from Tower Records, Tower has one less CD to sell. And when I take a
7092 CD from Tower Records, I get a bit of plastic and a cover, and
7093 something to show on my shelves. (And, while we're at it, we could
7094 also note that when I take a CD from Tower Records, the maximum fine
7095 that might be imposed on me, under California law, at least, is
7096 $1,000.  According to the RIAA, by contrast, if I download a ten-song
7097 CD, I'm liable for $1,500,000 in damages.)
7098 </p><p>
7099 The point is not that it is as neither side describes. The point is
7100 that it is both&#8212;both as the RIAA describes it and as Kazaa
7101 describes it. It is a chimera. And rather than simply denying what the
7102 other side asserts, we need to begin to think about how we should
7103 respond to this chimera. What rules should govern it?
7104 </p><p>
7105 We could respond by simply pretending that it is not a chimera. We
7106 could, with the RIAA, decide that every act of file sharing should be
7107 a felony. We could prosecute families for millions of dollars in
7108 damages just because file sharing occurred on a family computer. And
7109 we can get universities to monitor all computer traffic to make sure
7110 that no computer is used to commit this crime. These responses might
7111 be extreme, but each of them has either been proposed or actually
7112 implemented.<a href="#ftn.idp41300832" class="footnote" name="idp41300832"><sup class="footnote">[155]</sup></a>
7113
7114 </p><a class="indexterm" name="idp41312016"></a><p>
7115 Alternatively, we could respond to file sharing the way many kids act
7116 as though we've responded. We could totally legalize it. Let there be
7117 no copyright liability, either civil or criminal, for making
7118 copyrighted content available on the Net. Make file sharing like
7119 gossip: regulated, if at all, by social norms but not by law.
7120 </p><p>
7121 Either response is possible. I think either would be a mistake.
7122 Rather than embrace one of these two extremes, we should embrace
7123 something that recognizes the truth in both. And while I end this book
7124 with a sketch of a system that does just that, my aim in the next
7125 chapter is to show just how awful it would be for us to adopt the
7126 zero-tolerance extreme. I believe <span class="emphasis"><em>either</em></span> extreme
7127 would be worse than a reasonable alternative.  But I believe the
7128 zero-tolerance solution would be the worse of the two extremes.
7129 </p><p>
7130
7131
7132 Yet zero tolerance is increasingly our government's policy. In the
7133 middle of the chaos that the Internet has created, an extraordinary
7134 land grab is occurring. The law and technology are being shifted to
7135 give content holders a kind of control over our culture that they have
7136 never had before. And in this extremism, many an opportunity for new
7137 innovation and new creativity will be lost.
7138 </p><p>
7139 I'm not talking about the opportunities for kids to <span class="quote">«<span class="quote">steal</span>»</span> music. My
7140 focus instead is the commercial and cultural innovation that this war
7141 will also kill. We have never seen the power to innovate spread so
7142 broadly among our citizens, and we have just begun to see the
7143 innovation that this power will unleash. Yet the Internet has already
7144 seen the passing of one cycle of innovation around technologies to
7145 distribute content. The law is responsible for this passing. As the
7146 vice president for global public policy at one of these new
7147 innovators, eMusic.com, put it when criticizing the DMCA's added
7148 protection for copyrighted material,
7149 </p><div class="blockquote"><blockquote class="blockquote"><p>
7150 eMusic opposes music piracy. We are a distributor of copyrighted
7151 material, and we want to protect those rights.
7152 </p><p>
7153 But building a technology fortress that locks in the clout of the
7154 major labels is by no means the only way to protect copyright
7155 interests, nor is it necessarily the best. It is simply too early to
7156 answer that question. Market forces operating naturally may very well
7157 produce a totally different industry model.
7158 </p><p>
7159 This is a critical point. The choices that industry sectors make
7160 with respect to these systems will in many ways directly shape the
7161 market for digital media and the manner in which digital media
7162 are distributed. This in turn will directly influence the options
7163 that are available to consumers, both in terms of the ease with
7164 which they will be able to access digital media and the equipment
7165 that they will require to do so. Poor choices made this early in the
7166 game will retard the growth of this market, hurting everyone's
7167 interests.<a href="#ftn.idp41320192" class="footnote" name="idp41320192"><sup class="footnote">[156]</sup></a>
7168 </p></blockquote></div><p>
7169 In April 2001, eMusic.com was purchased by Vivendi Universal,
7170 one of <span class="quote">«<span class="quote">the major labels.</span>»</span> Its position on these matters has now
7171 changed.
7172 <a class="indexterm" name="idp41322864"></a>
7173 </p><p>
7174 Reversing our tradition of tolerance now will not merely quash
7175 piracy. It will sacrifice values that are important to this culture,
7176 and will kill opportunities that could be extraordinarily valuable.
7177 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp41268976" class="footnote"><p><a href="#idp41268976" class="para"><sup class="para">[154] </sup></a>
7178
7179 H. G. Wells, <span class="quote">«<span class="quote">The Country of the Blind</span>»</span> (1904, 1911). See H. G. Wells,
7180 <em class="citetitle">The Country of the Blind and Other Stories</em>, Michael Sherborne, ed. (New
7181 York: Oxford University Press, 1996).
7182 </p></div><div id="ftn.idp41300832" class="footnote"><p><a href="#idp41300832" class="para"><sup class="para">[155] </sup></a>
7183
7184 <a class="indexterm" name="idp41301536"></a>
7185 For an excellent summary, see the report prepared by GartnerG2 and the
7186 Berkman Center for Internet and Society at Harvard Law School,
7187 <span class="quote">«<span class="quote">Copyright and Digital Media in a Post-Napster World,</span>»</span> 27 June 2003,
7188 available at
7189 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
7190 #33</a>. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
7191 (D-Calif.) have introduced a bill that would treat unauthorized
7192 on-line copying as a felony offense with punishments ranging as high
7193 as five years imprisonment; see Jon Healey, <span class="quote">«<span class="quote">House Bill Aims to Up
7194 Stakes on Piracy,</span>»</span> <em class="citetitle">Los Angeles Times</em>, 17 July 2003, available at
7195 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #34</a>. Civil
7196 penalties are currently set at $150,000 per copied song. For a recent
7197 (and unsuccessful) legal challenge to the RIAA's demand that an ISP
7198 reveal the identity of a user accused of sharing more than 600 songs
7199 through a family computer, see <em class="citetitle">RIAA</em> v. <em class="citetitle">Verizon Internet Services (In
7200 re. Verizon Internet Services)</em>, 240 F.  Supp. 2d 24
7201 (D.D.C. 2003). Such a user could face liability ranging as high as $90
7202 million. Such astronomical figures furnish the RIAA with a powerful
7203 arsenal in its prosecution of file sharers. Settlements ranging from
7204 $12,000 to $17,500 for four students accused of heavy file sharing on
7205 university networks must have seemed a mere pittance next to the $98
7206 billion the RIAA could seek should the matter proceed to court. See
7207 Elizabeth Young, <span class="quote">«<span class="quote">Downloading Could Lead to Fines,</span>»</span> redandblack.com,
7208 August 2003, available at
7209 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #35</a>. For an
7210 example of the RIAA's targeting of student file sharing, and of the
7211 subpoenas issued to universities to reveal student file-sharer
7212 identities, see James Collins, <span class="quote">«<span class="quote">RIAA Steps Up Bid to Force BC, MIT to
7213 Name Students,</span>»</span> <em class="citetitle">Boston Globe</em>, 8 August 2003, D3, available at
7214 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #36</a>.
7215 <a class="indexterm" name="idp41310128"></a>
7216 <a class="indexterm" name="idp41310944"></a>
7217 </p></div><div id="ftn.idp41320192" class="footnote"><p><a href="#idp41320192" class="para"><sup class="para">[156] </sup></a>
7218
7219 WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital
7220 Entertainment on the Internet and Other Media: Hearing Before the
7221 Subcommittee on Telecommunications, Trade, and Consumer Protection,
7222 House Committee on Commerce, 106th Cong. 29 (1999) (statement of Peter
7223 Harter, vice president, Global Public Policy and Standards,
7224 EMusic.com), available in LEXIS, Federal Document Clearing House
7225 Congressional Testimony File.  </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="harms"></a>Chapter 12. Chapter Twelve: Harms</h2></div></div></div><p>
7226 <span class="strong"><strong>To fight</strong></span> <span class="quote">«<span class="quote">piracy,</span>»</span> to
7227 protect <span class="quote">«<span class="quote">property,</span>»</span> the content industry has launched a
7228 war. Lobbying and lots of campaign contributions have now brought the
7229 government into this war. As with any war, this one will have both
7230 direct and collateral damage. As with any war of prohibition, these
7231 damages will be suffered most by our own people.
7232 </p><p>
7233 My aim so far has been to describe the consequences of this war, in
7234 particular, the consequences for <span class="quote">«<span class="quote">free culture.</span>»</span> But my aim now is to
7235 extend this description of consequences into an argument. Is this war
7236 justified?
7237 </p><p>
7238 In my view, it is not. There is no good reason why this time, for the
7239 first time, the law should defend the old against the new, just when the
7240 power of the property called <span class="quote">«<span class="quote">intellectual property</span>»</span> is at its greatest in
7241 our history.
7242 </p><a class="indexterm" name="idp41330512"></a><a class="indexterm" name="idp41331328"></a><p>
7243 Yet <span class="quote">«<span class="quote">common sense</span>»</span> does not see it this way. Common sense is still on
7244 the side of the Causbys and the content industry. The extreme claims
7245 of control in the name of property still resonate; the uncritical
7246 rejection of <span class="quote">«<span class="quote">piracy</span>»</span> still has play.
7247 </p><a class="indexterm" name="idp41333648"></a><p>
7248
7249 There will be many consequences of continuing this war. I want to
7250 describe just three. All three might be said to be unintended. I am quite
7251 confident the third is unintended. I'm less sure about the first two. The
7252 first two protect modern RCAs, but there is no Howard Armstrong in
7253 the wings to fight today's monopolists of culture.
7254 </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>
7255 In the next ten years we will see an explosion of digital
7256 technologies.  These technologies will enable almost anyone to capture
7257 and share content. Capturing and sharing content, of course, is what
7258 humans have done since the dawn of man. It is how we learn and
7259 communicate. But capturing and sharing through digital technology is
7260 different. The fidelity and power are different. You could send an
7261 e-mail telling someone about a joke you saw on Comedy Central, or you
7262 could send the clip. You could write an essay about the
7263 inconsistencies in the arguments of the politician you most love to
7264 hate, or you could make a short film that puts statement against
7265 statement. You could write a poem to express your love, or you could
7266 weave together a string&#8212;a mash-up&#8212; of songs from your
7267 favorite artists in a collage and make it available on the Net.
7268 </p><a class="indexterm" name="idp41336880"></a><a class="indexterm" name="idp41339056"></a><p>
7269 This digital <span class="quote">«<span class="quote">capturing and sharing</span>»</span> is in part an extension of the
7270 capturing and sharing that has always been integral to our culture,
7271 and in part it is something new. It is continuous with the Kodak, but
7272 it explodes the boundaries of Kodak-like technologies. The technology
7273 of digital <span class="quote">«<span class="quote">capturing and sharing</span>»</span> promises a world of extraordinarily
7274 diverse creativity that can be easily and broadly shared. And as that
7275 creativity is applied to democracy, it will enable a broad range of
7276 citizens to use technology to express and criticize and contribute to
7277 the culture all around.
7278 </p><p>
7279 Technology has thus given us an opportunity to do something with
7280 culture that has only ever been possible for individuals in small groups,
7281
7282
7283
7284 isolated from others. Think about an old man telling a story to a
7285 collection of neighbors in a small town. Now imagine that same
7286 storytelling extended across the globe.
7287 </p><p>
7288 Yet all this is possible only if the activity is presumptively legal. In
7289 the current regime of legal regulation, it is not. Forget file sharing for
7290 a moment. Think about your favorite amazing sites on the Net. Web
7291 sites that offer plot summaries from forgotten television shows; sites
7292 that catalog cartoons from the 1960s; sites that mix images and sound
7293 to criticize politicians or businesses; sites that gather newspaper articles
7294 on remote topics of science or culture. There is a vast amount of creative
7295 work spread across the Internet. But as the law is currently crafted, this
7296 work is presumptively illegal.
7297 </p><a class="indexterm" name="idp41343584"></a><a class="indexterm" name="idp41344368"></a><a class="indexterm" name="idp41345488"></a><a class="indexterm" name="idp41346608"></a><a class="indexterm" name="idp41347440"></a><p>
7298 That presumption will increasingly chill creativity, as the
7299 examples of extreme penalties for vague infringements continue to
7300 proliferate. It is impossible to get a clear sense of what's allowed
7301 and what's not, and at the same time, the penalties for crossing the
7302 line are astonishingly harsh.  The four students who were threatened
7303 by the RIAA (Jesse Jordan of chapter <a class="xref" href="#catalogs" title="Chapter 3. Chapter Three: Catalogs">3</a> was just one) were threatened with a
7304 $98 billion lawsuit for building search engines that permitted songs
7305 to be copied. Yet World-Com&#8212;which defrauded investors of $11
7306 billion, resulting in a loss to investors in market capitalization of
7307 over $200 billion&#8212;received a fine of a mere $750
7308 million.<a href="#ftn.idp41350224" class="footnote" name="idp41350224"><sup class="footnote">[157]</sup></a>
7309 And under legislation being pushed in Congress right now, a doctor who
7310 negligently removes the wrong leg in an operation would be liable for
7311 no more than $250,000 in damages for pain and
7312 suffering.<a href="#ftn.idp41354112" class="footnote" name="idp41354112"><sup class="footnote">[158]</sup></a>
7313 Can common sense recognize the absurdity in a world where
7314 the maximum fine for downloading two songs off the Internet is more
7315 than the fine for a doctor's negligently butchering a patient?
7316 </p><a class="indexterm" name="idp41360192"></a><p>
7317 The consequence of this legal uncertainty, tied to these extremely
7318 high penalties, is that an extraordinary amount of creativity will
7319 either never be exercised, or never be exercised in the open. We drive
7320 this creative process underground by branding the modern-day Walt
7321 Disneys <span class="quote">«<span class="quote">pirates.</span>»</span> We make it impossible for businesses to rely upon a
7322 public domain, because the boundaries of the public domain are
7323 designed to
7324
7325
7326 be unclear. It never pays to do anything except pay for the right
7327 to create, and hence only those who can pay are allowed to create. As
7328 was the case in the Soviet Union, though for very different reasons,
7329 we will begin to see a world of underground art&#8212;not because the
7330 message is necessarily political, or because the subject is
7331 controversial, but because the very act of creating the art is legally
7332 fraught. Already, exhibits of <span class="quote">«<span class="quote">illegal art</span>»</span> tour the United
7333 States.<a href="#ftn.idp41363344" class="footnote" name="idp41363344"><sup class="footnote">[159]</sup></a>
7334  In what does their <span class="quote">«<span class="quote">illegality</span>»</span> consist?
7335 In the act of mixing the culture around us with an expression that is
7336 critical or reflective.
7337 </p><a class="indexterm" name="idp41367280"></a><p>
7338 Part of the reason for this fear of illegality has to do with the
7339 changing law. I described that change in detail in chapter
7340 <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>. But an
7341 even bigger part has to do with the increasing ease with which
7342 infractions can be tracked. As users of file-sharing systems
7343 discovered in 2002, it is a trivial matter for copyright owners to get
7344 courts to order Internet service providers to reveal who has what
7345 content. It is as if your cassette tape player transmitted a list of
7346 the songs that you played in the privacy of your own home that anyone
7347 could tune into for whatever reason they chose.
7348 </p><a class="indexterm" name="idp41370096"></a><p>
7349 Never in our history has a painter had to worry about whether
7350 his painting infringed on someone else's work; but the modern-day
7351 painter, using the tools of Photoshop, sharing content on the Web,
7352 must worry all the time. Images are all around, but the only safe images
7353 to use in the act of creation are those purchased from Corbis or another
7354 image farm. And in purchasing, censoring happens. There is a free
7355 market in pencils; we needn't worry about its effect on creativity. But
7356 there is a highly regulated, monopolized market in cultural icons; the
7357 right to cultivate and transform them is not similarly free.
7358 </p><p>
7359 Lawyers rarely see this because lawyers are rarely empirical. As I
7360 described in chapter
7361 <a class="xref" href="#recorders" title="Chapter 7. Chapter Seven: Recorders">7</a>, in
7362 response to the story about documentary filmmaker Jon Else, I have
7363 been lectured again and again by lawyers who insist Else's use was
7364 fair use, and hence I am wrong to say that the law regulates such a
7365 use.
7366 </p><p>
7367
7368
7369 But fair use in America simply means the right to hire a lawyer to
7370 defend your right to create. And as lawyers love to forget, our system
7371 for defending rights such as fair use is astonishingly bad&#8212;in
7372 practically every context, but especially here. It costs too much, it
7373 delivers too slowly, and what it delivers often has little connection
7374 to the justice underlying the claim. The legal system may be tolerable
7375 for the very rich.  For everyone else, it is an embarrassment to a
7376 tradition that prides itself on the rule of law.
7377 </p><p>
7378 Judges and lawyers can tell themselves that fair use provides adequate
7379 <span class="quote">«<span class="quote">breathing room</span>»</span> between regulation by the law and the access the law
7380 should allow. But it is a measure of how out of touch our legal system
7381 has become that anyone actually believes this. The rules that
7382 publishers impose upon writers, the rules that film distributors
7383 impose upon filmmakers, the rules that newspapers impose upon
7384 journalists&#8212; these are the real laws governing creativity. And
7385 these rules have little relationship to the <span class="quote">«<span class="quote">law</span>»</span> with which judges
7386 comfort themselves.
7387 </p><p>
7388 For in a world that threatens $150,000 for a single willful
7389 infringement of a copyright, and which demands tens of thousands of
7390 dollars to even defend against a copyright infringement claim, and
7391 which would never return to the wrongfully accused defendant anything
7392 of the costs she suffered to defend her right to speak&#8212;in that
7393 world, the astonishingly broad regulations that pass under the name
7394 <span class="quote">«<span class="quote">copyright</span>»</span> silence speech and creativity. And in that world, it takes
7395 a studied blindness for people to continue to believe they live in a
7396 culture that is free.
7397 </p><p>
7398 As Jed Horovitz, the businessman behind Video Pipeline, said to me,
7399 </p><div class="blockquote"><blockquote class="blockquote"><p>
7400 We're losing [creative] opportunities right and left. Creative people
7401 are being forced not to express themselves. Thoughts are not being
7402 expressed. And while a lot of stuff may [still] be created, it still
7403 won't get distributed. Even if the stuff gets made &#8230; you're not
7404 going to get it distributed in the mainstream media unless
7405
7406 you've got a little note from a lawyer saying, <span class="quote">«<span class="quote">This has been
7407 cleared.</span>»</span> You're not even going to get it on PBS without that kind of
7408 permission. That's the point at which they control it.
7409 </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>
7410 The story of the last section was a crunchy-lefty
7411 story&#8212;creativity quashed, artists who can't speak, yada yada
7412 yada. Maybe that doesn't get you going. Maybe you think there's enough
7413 weird art out there, and enough expression that is critical of what
7414 seems to be just about everything.  And if you think that, you might
7415 think there's little in this story to worry you.
7416 </p><a class="indexterm" name="idxmarketconstraints2"></a><p>
7417 But there's an aspect of this story that is not lefty in any sense.
7418 Indeed, it is an aspect that could be written by the most extreme
7419 promarket ideologue. And if you're one of these sorts (and a special
7420 one at that, <a class="xref" href="#innovators" title="12.2. Constraining Innovators"></a> pages into a book like this), then you
7421 can see this other aspect by substituting <span class="quote">«<span class="quote">free market</span>»</span>
7422 every place I've spoken of <span class="quote">«<span class="quote">free culture.</span>»</span> The point is
7423 the same, even if the interests affecting culture are more
7424 fundamental.
7425 </p><p>
7426 The charge I've been making about the regulation of culture is the
7427 same charge free marketers make about regulating markets. Everyone, of
7428 course, concedes that some regulation of markets is necessary&#8212;at
7429 a minimum, we need rules of property and contract, and courts to
7430 enforce both. Likewise, in this culture debate, everyone concedes that
7431 at least some framework of copyright is also required. But both
7432 perspectives vehemently insist that just because some regulation is
7433 good, it doesn't follow that more regulation is better. And both
7434 perspectives are constantly attuned to the ways in which regulation
7435 simply enables the powerful industries of today to protect themselves
7436 against the competitors of tomorrow.
7437 </p><a class="indexterm" name="idp41392512"></a><a class="indexterm" name="idp41394640"></a><a class="indexterm" name="idp41395456"></a><p>
7438 This is the single most dramatic effect of the shift in regulatory
7439
7440 strategy that I described in chapter <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>. The consequence of this massive
7441 threat of liability tied to the murky boundaries of copyright law is
7442 that innovators who want to innovate in this space can safely innovate
7443 only if they have the sign-off from last generation's dominant
7444 industries.  That lesson has been taught through a series of cases
7445 that were designed and executed to teach venture capitalists a
7446 lesson. That lesson&#8212;what former Napster CEO Hank Barry calls a
7447 <span class="quote">«<span class="quote">nuclear pall</span>»</span> that has fallen over the Valley&#8212;has been learned.
7448 </p><a class="indexterm" name="idp41399024"></a><a class="indexterm" name="idp41399664"></a><p>
7449 Consider one example to make the point, a story whose beginning
7450 I told in <em class="citetitle">The Future of Ideas</em> and which has progressed in a way that
7451 even I (pessimist extraordinaire) would never have predicted.
7452 </p><a class="indexterm" name="idxmpcom"></a><a class="indexterm" name="idxmympcom"></a><a class="indexterm" name="idp41404560"></a><p>
7453 In 1997, Michael Roberts launched a company called MP3.com.  MP3.com
7454 was keen to remake the music business. Their goal was not just to
7455 facilitate new ways to get access to content. Their goal was also to
7456 facilitate new ways to create content. Unlike the major labels,
7457 MP3.com offered creators a venue to distribute their creativity,
7458 without demanding an exclusive engagement from the creators.
7459 </p><a class="indexterm" name="idp41406176"></a><a class="indexterm" name="idxcdsprefdata"></a><p>
7460 To make this system work, however, MP3.com needed a reliable way to
7461 recommend music to its users. The idea behind this alternative was to
7462 leverage the revealed preferences of music listeners to recommend new
7463 artists. If you like Lyle Lovett, you're likely to enjoy Bonnie
7464 Raitt. And so on.
7465 </p><p>
7466 This idea required a simple way to gather data about user preferences.
7467 MP3.com came up with an extraordinarily clever way to gather this
7468 preference data. In January 2000, the company launched a service
7469 called my.mp3.com. Using software provided by MP3.com, a user would
7470 sign into an account and then insert into her computer a CD. The
7471 software would identify the CD, and then give the user access to that
7472 content.  So, for example, if you inserted a CD by Jill Sobule, then
7473 wherever you were&#8212;at work or at home&#8212;you could get access
7474 to that music once you signed into your account. The system was
7475 therefore a kind of music-lockbox.
7476 </p><p>
7477 No doubt some could use this system to illegally copy content. But
7478 that opportunity existed with or without MP3.com. The aim of the
7479
7480
7481 my.mp3.com service was to give users access to their own content, and
7482 as a by-product, by seeing the content they already owned, to discover
7483 the kind of content the users liked.
7484 </p><a class="indexterm" name="idp41411664"></a><p>
7485 To make this system function, however, MP3.com needed to copy 50,000
7486 CDs to a server. (In principle, it could have been the user who
7487 uploaded the music, but that would have taken a great deal of time,
7488 and would have produced a product of questionable quality.) It
7489 therefore purchased 50,000 CDs from a store, and started the process
7490 of making copies of those CDs. Again, it would not serve the content
7491 from those copies to anyone except those who authenticated that they
7492 had a copy of the CD they wanted to access. So while this was 50,000
7493 copies, it was 50,000 copies directed at giving customers something
7494 they had already bought.
7495 </p><a class="indexterm" name="idxvivendiuniversal"></a><a class="indexterm" name="idp41415360"></a><a class="indexterm" name="idp41416496"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitsinrecordingindustry3"></a><a class="indexterm" name="idp41419616"></a><a class="indexterm" name="idp41420736"></a><a class="indexterm" name="idp41421840"></a><p>
7496 Nine days after MP3.com launched its service, the five major labels,
7497 headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled
7498 with four of the five. Nine months later, a federal judge found
7499 MP3.com to have been guilty of willful infringement with respect to
7500 the fifth. Applying the law as it is, the judge imposed a fine against
7501 MP3.com of $118 million. MP3.com then settled with the remaining
7502 plaintiff, Vivendi Universal, paying over $54 million. Vivendi
7503 purchased MP3.com just about a year later.
7504 </p><p>
7505 That part of the story I have told before. Now consider its conclusion.
7506 </p><p>
7507 After Vivendi purchased MP3.com, Vivendi turned around and filed a
7508 malpractice lawsuit against the lawyers who had advised it that they
7509 had a good faith claim that the service they wanted to offer would be
7510 considered legal under copyright law. This lawsuit alleged that it
7511 should have been obvious that the courts would find this behavior
7512 illegal; therefore, this lawsuit sought to punish any lawyer who had
7513 dared to suggest that the law was less restrictive than the labels
7514 demanded.
7515 </p><a class="indexterm" name="idp41425728"></a><p>
7516 The clear purpose of this lawsuit (which was settled for an
7517 unspecified amount shortly after the story was no longer covered in
7518 the press) was to send an unequivocal message to lawyers advising
7519 clients in this
7520
7521 space: It is not just your clients who might suffer if the content
7522 industry directs its guns against them. It is also you. So those of
7523 you who believe the law should be less restrictive should realize that
7524 such a view of the law will cost you and your firm dearly.
7525 </p><a class="indexterm" name="idp41428192"></a><a class="indexterm" name="idp41429472"></a><a class="indexterm" name="idp41430784"></a><a class="indexterm" name="idp41432224"></a><a class="indexterm" name="idp41433040"></a><a class="indexterm" name="idxbmw"></a><a class="indexterm" name="idxcarsmpsoundsystemsin"></a><a class="indexterm" name="idp41437120"></a><a class="indexterm" name="idp41437904"></a><a class="indexterm" name="idp41438720"></a><a class="indexterm" name="idp41439536"></a><a class="indexterm" name="idp41440352"></a><a class="indexterm" name="idp41441168"></a><a class="indexterm" name="idxneedlemanrafe"></a><a class="indexterm" name="idp41443840"></a><a class="indexterm" name="idp41444656"></a><p>
7526 This strategy is not just limited to the lawyers. In April 2003,
7527 Universal and EMI brought a lawsuit against Hummer Winblad, the
7528 venture capital firm (VC) that had funded Napster at a certain stage of
7529 its development, its cofounder (John Hummer), and general partner
7530 (Hank Barry).<a href="#ftn.idp41446032" class="footnote" name="idp41446032"><sup class="footnote">[160]</sup></a>
7531 The claim here, as well, was that the VC should have recognized the
7532 right of the content industry to control how the industry should
7533 develop. They should be held personally liable for funding a company
7534 whose business turned out to be beyond the law. Here again, the aim of
7535 the lawsuit is transparent: Any VC now recognizes that if you fund a
7536 company whose business is not approved of by the dinosaurs, you are at
7537 risk not just in the marketplace, but in the courtroom as well.  Your
7538 investment buys you not only a company, it also buys you a lawsuit.
7539 So extreme has the environment become that even car manufacturers are
7540 afraid of technologies that touch content. In an article in
7541 <em class="citetitle">Business 2.0</em>, Rafe Needleman describes a
7542 discussion with BMW:
7543 </p><div class="blockquote"><blockquote class="blockquote"><p>
7544 I asked why, with all the storage capacity and computer power in
7545 the car, there was no way to play MP3 files. I was told that BMW
7546 engineers in Germany had rigged a new vehicle to play MP3s via
7547 the car's built-in sound system, but that the company's marketing
7548 and legal departments weren't comfortable with pushing this
7549 forward for release stateside. Even today, no new cars are sold in the
7550 United States with bona fide MP3 players. &#8230; <a href="#ftn.idp41379232" class="footnote" name="idp41379232"><sup class="footnote">[161]</sup></a>
7551 </p></blockquote></div><a class="indexterm" name="idp41456016"></a><a class="indexterm" name="idp41457328"></a><a class="indexterm" name="idp41458640"></a><p>
7552 This is the world of the mafia&#8212;filled with <span class="quote">«<span class="quote">your money or your
7553 life</span>»</span> offers, governed in the end not by courts but by the threats
7554 that the law empowers copyright holders to exercise. It is a system
7555 that will obviously and necessarily stifle new innovation. It is hard
7556 enough to start a company. It is impossibly hard if that company is
7557 constantly threatened by litigation.
7558 </p><a class="indexterm" name="idxmarketconstraints3"></a><a class="indexterm" name="idxpermissionculturetransactioncostof"></a><a class="indexterm" name="idp41464640"></a><a class="indexterm" name="idp41465744"></a><p>
7559
7560
7561 The point is not that businesses should have a right to start illegal
7562 enterprises. The point is the definition of <span class="quote">«<span class="quote">illegal.</span>»</span> The law is a
7563 mess of uncertainty. We have no good way to know how it should apply
7564 to new technologies. Yet by reversing our tradition of judicial
7565 deference, and by embracing the astonishingly high penalties that
7566 copyright law imposes, that uncertainty now yields a reality which is
7567 far more conservative than is right. If the law imposed the death
7568 penalty for parking tickets, we'd not only have fewer parking tickets,
7569 we'd also have much less driving. The same principle applies to
7570 innovation. If innovation is constantly checked by this uncertain and
7571 unlimited liability, we will have much less vibrant innovation and
7572 much less creativity.
7573 </p><p>
7574 The point is directly parallel to the crunchy-lefty point about fair
7575 use. Whatever the <span class="quote">«<span class="quote">real</span>»</span> law is, realism about the effect of law in
7576 both contexts is the same. This wildly punitive system of regulation
7577 will systematically stifle creativity and innovation. It will protect
7578 some industries and some creators, but it will harm industry and
7579 creativity generally. Free market and free culture depend upon vibrant
7580 competition.  Yet the effect of the law today is to stifle just this
7581 kind of competition.  The effect is to produce an overregulated
7582 culture, just as the effect of too much control in the market is to
7583 produce an overregulated-regulated market.
7584 </p><p>
7585 The building of a permission culture, rather than a free culture, is
7586 the first important way in which the changes I have described will
7587 burden innovation. A permission culture means a lawyer's
7588 culture&#8212;a culture in which the ability to create requires a call
7589 to your lawyer. Again, I am not antilawyer, at least when they're kept
7590 in their proper place. I am certainly not antilaw. But our profession
7591 has lost the sense of its limits. And leaders in our profession have
7592 lost an appreciation of the high costs that our profession imposes
7593 upon others. The inefficiency of the law is an embarrassment to our
7594 tradition. And while I believe our profession should therefore do
7595 everything it can to make the law more efficient, it should at least
7596 do everything it can to limit the reach of the
7597
7598 law where the law is not doing any good. The transaction costs buried
7599 within a permission culture are enough to bury a wide range of
7600 creativity.  Someone needs to do a lot of justifying to justify that
7601 result.
7602 </p><a class="indexterm" name="idp41472832"></a><a class="indexterm" name="idp41474000"></a><p>
7603 <span class="strong"><strong>The uncertainty</strong></span> of the law is one
7604 burden on innovation. There is a second burden that operates more
7605 directly. This is the effort by many in the content industry to use
7606 the law to directly regulate the technology of the Internet so that it
7607 better protects their content.
7608 </p><p>
7609 The motivation for this response is obvious. The Internet enables the
7610 efficient spread of content. That efficiency is a feature of the
7611 Internet's design. But from the perspective of the content industry,
7612 this feature is a <span class="quote">«<span class="quote">bug.</span>»</span> The efficient spread of content means that
7613 content distributors have a harder time controlling the distribution
7614 of content.  One obvious response to this efficiency is thus to make
7615 the Internet less efficient. If the Internet enables <span class="quote">«<span class="quote">piracy,</span>»</span> then,
7616 this response says, we should break the kneecaps of the Internet.
7617 </p><a class="indexterm" name="idp41478544"></a><p>
7618 The examples of this form of legislation are many. At the urging of
7619 the content industry, some in Congress have threatened legislation that
7620 would require computers to determine whether the content they access
7621 is protected or not, and to disable the spread of protected content.<a href="#ftn.idp41479904" class="footnote" name="idp41479904"><sup class="footnote">[162]</sup></a>
7622 Congress has already launched proceedings to explore a mandatory
7623 <span class="quote">«<span class="quote">broadcast flag</span>»</span> that would be required on any device capable of
7624 transmitting digital video (i.e., a computer), and that would disable
7625 the copying of any content that is marked with a broadcast flag. Other
7626 members of Congress have proposed immunizing content providers from
7627 liability for technology they might deploy that would hunt down
7628 copyright violators and disable their machines.<a href="#ftn.idp41482848" class="footnote" name="idp41482848"><sup class="footnote">[163]</sup></a>
7629 </p><p>
7630 In one sense, these solutions seem sensible. If the problem is the
7631 code, why not regulate the code to remove the problem. But any
7632 regulation of technical infrastructure will always be tuned to the
7633 particular technology of the day. It will impose significant burdens
7634 and costs on
7635
7636 the technology, but will likely be eclipsed by advances around exactly
7637 those requirements.
7638 </p><a class="indexterm" name="idp41484960"></a><p>
7639 In March 2002, a broad coalition of technology companies, led by
7640 Intel, tried to get Congress to see the harm that such legislation
7641 would impose.<a href="#ftn.idp41486160" class="footnote" name="idp41486160"><sup class="footnote">[164]</sup></a>
7642 Their argument was obviously not that copyright should not be
7643 protected. Instead, they argued, any protection should not do more
7644 harm than good.
7645 </p><p>
7646 <span class="strong"><strong>There is one</strong></span> more obvious way in
7647 which this war has harmed innovation&#8212;again, a story that will be
7648 quite familiar to the free market crowd.
7649 </p><p>
7650 Copyright may be property, but like all property, it is also a form
7651 of regulation. It is a regulation that benefits some and harms others.
7652 When done right, it benefits creators and harms leeches. When done
7653 wrong, it is regulation the powerful use to defeat competitors.
7654 </p><a class="indexterm" name="idp41489808"></a><a class="indexterm" name="idp41490880"></a><a class="indexterm" name="idp41491696"></a><a class="indexterm" name="idp41492512"></a><p>
7655 As I described in chapter <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>, despite this feature of copyright as
7656 regulation, and subject to important qualifications outlined by
7657 Jessica Litman in her book <em class="citetitle">Digital
7658 Copyright</em>,<a href="#ftn.idp41495392" class="footnote" name="idp41495392"><sup class="footnote">[165]</sup></a>
7659 overall this history of copyright is not bad. As chapter
7660 <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a> details,
7661 when new technologies have come along, Congress has struck a balance
7662 to assure that the new is protected from the old. Compulsory, or
7663 statutory, licenses have been one part of that strategy. Free use (as
7664 in the case of the VCR) has been another.
7665 </p><p>
7666 But that pattern of deference to new technologies has now changed
7667 with the rise of the Internet. Rather than striking a balance between
7668 the claims of a new technology and the legitimate rights of content
7669 creators, both the courts and Congress have imposed legal restrictions
7670 that will have the effect of smothering the new to benefit the old.
7671 </p><a class="indexterm" name="idxinternetradioon"></a><a class="indexterm" name="idxradiooninternet"></a><p>
7672 The response by the courts has been fairly universal.<a href="#ftn.idp41504384" class="footnote" name="idp41504384"><sup class="footnote">[166]</sup></a>
7673 It has been mirrored in the responses threatened and actually
7674 implemented by Congress. I won't catalog all of those responses
7675 here.<a href="#ftn.idp41508704" class="footnote" name="idp41508704"><sup class="footnote">[167]</sup></a>
7676 But there is one example that captures the flavor of them all. This is
7677 the story of the demise of Internet radio.
7678 </p><a class="indexterm" name="idp41515456"></a><a class="indexterm" name="idp41516544"></a><a class="indexterm" name="idp41517360"></a><a class="indexterm" name="idxradiomusicrecordingsplayedon2"></a><p>
7679
7680
7681 As I described in chapter <a class="xref" href="#pirates" title="Chapter 4. Chapter Four: «Pirates»">4</a>, when a radio station plays a song, the recording
7682 artist doesn't get paid for that <span class="quote">«<span class="quote">radio performance</span>»</span> unless he or she
7683 is also the composer. So, for example if Marilyn Monroe had recorded a
7684 version of <span class="quote">«<span class="quote">Happy Birthday</span>»</span>&#8212;to memorialize her famous
7685 performance before President Kennedy at Madison Square Garden&#8212;
7686 then whenever that recording was played on the radio, the current
7687 copyright owners of <span class="quote">«<span class="quote">Happy Birthday</span>»</span> would get some money, whereas
7688 Marilyn Monroe would not.
7689 </p><p>
7690 The reasoning behind this balance struck by Congress makes some
7691 sense. The justification was that radio was a kind of advertising. The
7692 recording artist thus benefited because by playing her music, the
7693 radio station was making it more likely that her records would be
7694 purchased.  Thus, the recording artist got something, even if only
7695 indirectly.  Probably this reasoning had less to do with the result
7696 than with the power of radio stations: Their lobbyists were quite good
7697 at stopping any efforts to get Congress to require compensation to the
7698 recording artists.
7699 </p><a class="indexterm" name="idp41524544"></a><p>
7700 Enter Internet radio. Like regular radio, Internet radio is a
7701 technology to stream content from a broadcaster to a listener. The
7702 broadcast travels across the Internet, not across the ether of radio
7703 spectrum.  Thus, I can <span class="quote">«<span class="quote">tune in</span>»</span> to an Internet radio station in
7704 Berlin while sitting in San Francisco, even though there's no way for
7705 me to tune in to a regular radio station much beyond the San Francisco
7706 metropolitan area.
7707 </p><p>
7708 This feature of the architecture of Internet radio means that there
7709 are potentially an unlimited number of radio stations that a user
7710 could tune in to using her computer, whereas under the existing
7711 architecture for broadcast radio, there is an obvious limit to the
7712 number of broadcasters and clear broadcast frequencies. Internet radio
7713 could therefore be more competitive than regular radio; it could
7714 provide a wider range of selections. And because the potential
7715 audience for Internet radio is the whole world, niche stations could
7716 easily develop and market their content to a relatively large number
7717 of users worldwide. According to some estimates, more than eighty
7718 million users worldwide have tuned in to this new form of radio.
7719 </p><a class="indexterm" name="idp41528208"></a><p>
7720
7721
7722 Internet radio is thus to radio what FM was to AM. It is an
7723 improvement potentially vastly more significant than the FM
7724 improvement over AM, since not only is the technology better, so, too,
7725 is the competition. Indeed, there is a direct parallel between the
7726 fight to establish FM radio and the fight to protect Internet
7727 radio. As one author describes Howard Armstrong's struggle to enable
7728 FM radio,
7729 </p><div class="blockquote"><blockquote class="blockquote"><p>
7730 An almost unlimited number of FM stations was possible in the
7731 shortwaves, thus ending the unnatural restrictions imposed on radio in
7732 the crowded longwaves. If FM were freely developed, the number of
7733 stations would be limited only by economics and competition rather
7734 than by technical restrictions. &#8230; Armstrong likened the situation
7735 that had grown up in radio to that following the invention of the
7736 printing press, when governments and ruling interests attempted to
7737 control this new instrument of mass communications by imposing
7738 restrictive licenses on it. This tyranny was broken only when it
7739 became possible for men freely to acquire printing presses and freely
7740 to run them. FM in this sense was as great an invention as the
7741 printing presses, for it gave radio the opportunity to strike off its
7742 shackles.<a href="#ftn.idp41452272" class="footnote" name="idp41452272"><sup class="footnote">[168]</sup></a>
7743 </p></blockquote></div><p>
7744 This potential for FM radio was never realized&#8212;not
7745 because Armstrong was wrong about the technology, but because he
7746 underestimated the power of <span class="quote">«<span class="quote">vested interests, habits, customs and
7747 legislation</span>»</span><a href="#ftn.idp41533376" class="footnote" name="idp41533376"><sup class="footnote">[169]</sup></a>
7748 to retard the growth of this competing technology.
7749 </p><p>
7750 Now the very same claim could be made about Internet radio. For
7751 again, there is no technical limitation that could restrict the number of
7752 Internet radio stations. The only restrictions on Internet radio are
7753 those imposed by the law. Copyright law is one such law. So the first
7754 question we should ask is, what copyright rules would govern Internet
7755 radio?
7756 </p><a class="indexterm" name="idxartistsrecordingindustrypaymentsto3"></a><a class="indexterm" name="idp41537008"></a><a class="indexterm" name="idp41538112"></a><a class="indexterm" name="idp41539216"></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>
7757 But here the power of the lobbyists is reversed. Internet radio is a
7758 new industry. The recording artists, on the other hand, have a very
7759
7760
7761 powerful lobby, the RIAA. Thus when Congress considered the phenomenon
7762 of Internet radio in 1995, the lobbyists had primed Congress to adopt
7763 a different rule for Internet radio than the rule that applies to
7764 terrestrial radio. While terrestrial radio does not have to pay our
7765 hypothetical Marilyn Monroe when it plays her hypothetical recording
7766 of <span class="quote">«<span class="quote">Happy Birthday</span>»</span> on the air, <span class="emphasis"><em>Internet radio
7767 does</em></span>. Not only is the law not neutral toward Internet
7768 radio&#8212;the law actually burdens Internet radio more than it
7769 burdens terrestrial radio.
7770 </p><p>
7771 This financial burden is not slight. As Harvard law professor
7772 William Fisher estimates, if an Internet radio station distributed adfree
7773 popular music to (on average) ten thousand listeners, twenty-four
7774 hours a day, the total artist fees that radio station would owe would be
7775 over $1 million a year.<a href="#ftn.idp41552848" class="footnote" name="idp41552848"><sup class="footnote">[170]</sup></a>
7776 A regular radio station broadcasting the same content would pay no
7777 equivalent fee.
7778 </p><a class="indexterm" name="idp41558512"></a><a class="indexterm" name="idp41559904"></a><a class="indexterm" name="idp41561296"></a><a class="indexterm" name="idp41562624"></a><a class="indexterm" name="idp41564000"></a><p>
7779 The burden is not financial only. Under the original rules that were
7780 proposed, an Internet radio station (but not a terrestrial radio
7781 station) would have to collect the following data from <span class="emphasis"><em>every
7782 listening transaction</em></span>:
7783 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><p>
7784 name of the service;
7785 </p></li><li class="listitem"><p>
7786 channel of the program (AM/FM stations use station ID);
7787 </p></li><li class="listitem"><p>
7788 type of program (archived/looped/live);
7789 </p></li><li class="listitem"><p>
7790 date of transmission;
7791 </p></li><li class="listitem"><p>
7792 time of transmission;
7793 </p></li><li class="listitem"><p>
7794 time zone of origination of transmission;
7795 </p></li><li class="listitem"><p>
7796 numeric designation of the place of the sound recording within the program;
7797 </p></li><li class="listitem"><p>
7798 duration of transmission (to nearest second);
7799 </p></li><li class="listitem"><p>
7800 sound recording title;
7801 </p></li><li class="listitem"><p>
7802 ISRC code of the recording;
7803 </p></li><li class="listitem"><p>
7804 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;
7805 </p></li><li class="listitem"><p>
7806 featured recording artist;
7807 </p></li><li class="listitem"><p>
7808 retail album title;
7809 </p></li><li class="listitem"><p>
7810 recording label;
7811 </p></li><li class="listitem"><p>
7812 UPC code of the retail album;
7813 </p></li><li class="listitem"><p>
7814 catalog number;
7815 </p></li><li class="listitem"><p>
7816 copyright owner information;
7817 </p></li><li class="listitem"><p>
7818 musical genre of the channel or program (station format);
7819 </p></li><li class="listitem"><p>
7820 name of the service or entity;
7821 </p></li><li class="listitem"><p>
7822 channel or program;
7823 </p></li><li class="listitem"><p>
7824 date and time that the user logged in (in the user's time zone);
7825 </p></li><li class="listitem"><p>
7826 date and time that the user logged out (in the user's time zone);
7827 </p></li><li class="listitem"><p>
7828 time zone where the signal was received (user);
7829 </p></li><li class="listitem"><p>
7830 unique user identifier;
7831 </p></li><li class="listitem"><p>
7832 the country in which the user received the transmissions.
7833 </p></li></ol></div><a class="indexterm" name="idp41582160"></a><p>
7834 The Librarian of Congress eventually suspended these reporting
7835 requirements, pending further study. And he also changed the original
7836 rates set by the arbitration panel charged with setting rates. But the
7837 basic difference between Internet radio and terrestrial radio remains:
7838 Internet radio has to pay a <span class="emphasis"><em>type of copyright fee</em></span>
7839 that terrestrial radio does not.
7840 </p><p>
7841 Why? What justifies this difference? Was there any study of the
7842 economic consequences from Internet radio that would justify these
7843 differences? Was the motive to protect artists against piracy?
7844 </p><a class="indexterm" name="idp41584736"></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>
7845 In a rare bit of candor, one RIAA expert admitted what seemed obvious
7846 to everyone at the time. As Alex Alben, vice president for Public
7847 Policy at Real Networks, told me,
7848 </p><div class="blockquote"><blockquote class="blockquote"><p>
7849 The RIAA, which was representing the record labels, presented
7850 some testimony about what they thought a willing buyer would
7851 pay to a willing seller, and it was much higher. It was ten times
7852 higher than what radio stations pay to perform the same songs for
7853 the same period of time. And so the attorneys representing the
7854 webcasters asked the RIAA, &#8230; <span class="quote">«<span class="quote">How  do  you  come  up  with a
7855
7856
7857 rate that's so much higher? Why is it worth more than radio?  Because
7858 here we have hundreds of thousands of webcasters who want to pay, and
7859 that should establish the market rate, and if you set the rate so
7860 high, you're going to drive the small webcasters out of
7861 business. &#8230;</span>»</span>
7862 </p><a class="indexterm" name="idp41595600"></a><p>
7863 And the RIAA experts said, <span class="quote">«<span class="quote">Well, we don't really model this as an
7864 industry with thousands of webcasters, <span class="emphasis"><em>we think it should be
7865 an industry with, you know, five or seven big players who can pay a
7866 high rate and it's a stable, predictable market</em></span>.</span>»</span> (Emphasis
7867 added.)
7868 </p></blockquote></div><a class="indexterm" name="idp41598304"></a><a class="indexterm" name="idp41599552"></a><a class="indexterm" name="idp41600896"></a><a class="indexterm" name="idp41602288"></a><p>
7869 Translation: The aim is to use the law to eliminate competition, so
7870 that this platform of potentially immense competition, which would
7871 cause the diversity and range of content available to explode, would not
7872 cause pain to the dinosaurs of old. There is no one, on either the right
7873 or the left, who should endorse this use of the law. And yet there is
7874 practically no one, on either the right or the left, who is doing anything
7875 effective to prevent it.
7876 </p><a class="indexterm" name="idp41604528"></a><a class="indexterm" name="idp41605856"></a><a class="indexterm" name="idp41607248"></a><a class="indexterm" name="idp41608560"></a><a class="indexterm" name="idp41609808"></a><a class="indexterm" name="idp41611088"></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>
7877 Overregulation stifles creativity. It smothers innovation. It gives
7878                 dinosaurs
7879 a veto over the future. It wastes the extraordinary opportunity
7880 for a democratic creativity that digital technology enables.
7881 </p><p>
7882 In addition to these important harms, there is one more that was
7883 important to our forebears, but seems forgotten today. Overregulation
7884 corrupts citizens and weakens the rule of law.
7885 </p><p>
7886 The war that is being waged today is a war of prohibition. As with
7887 every war of prohibition, it is targeted against the behavior of a very
7888 large number of citizens. According to <em class="citetitle">The New York Times</em>, 43 million
7889 Americans downloaded music in May 2002.<a href="#ftn.idp41615696" class="footnote" name="idp41615696"><sup class="footnote">[171]</sup></a>
7890  According to the RIAA,
7891 the behavior of those 43 million Americans is a felony. We thus have a
7892 set of rules that transform 20 percent of America into criminals. As the
7893
7894
7895 RIAA launches lawsuits against not only the Napsters and Kazaas of
7896 the world, but against students building search engines, and
7897                 increasingly
7898 against ordinary users downloading content, the technologies for
7899 sharing will advance to further protect and hide illegal use. It is an arms
7900 race or a civil war, with the extremes of one side inviting a more
7901                 extreme
7902 response by the other.
7903 </p><p>
7904 The content industry's tactics exploit the failings of the American
7905 legal system. When the RIAA brought suit against Jesse Jordan, it
7906 knew that in Jordan it had found a scapegoat, not a defendant. The
7907 threat of having to pay either all the money in the world in damages
7908 ($15,000,000) or almost all the money in the world to defend against
7909 paying all the money in the world in damages ($250,000 in legal fees)
7910 led Jordan to choose to pay all the money he had in the world
7911 ($12,000) to make the suit go away. The same strategy animates the
7912 RIAA's suits against individual users. In September 2003, the RIAA
7913 sued 261 individuals&#8212;including a twelve-year-old girl living in public
7914 housing and a seventy-year-old man who had no idea what file sharing
7915 was.<a href="#ftn.idp41551952" class="footnote" name="idp41551952"><sup class="footnote">[172]</sup></a>
7916 As these scapegoats discovered, it will always cost more to defend
7917 against these suits than it would cost to simply settle. (The twelve
7918 year old, for example, like Jesse Jordan, paid her life savings of $2,000
7919 to settle the case.) Our law is an awful system for defending rights. It
7920 is an embarrassment to our tradition. And the consequence of our law
7921 as it is, is that those with the power can use the law to quash any rights
7922 they oppose.
7923 </p><a class="indexterm" name="idp41622352"></a><p>
7924 Wars of prohibition are nothing new in America. This one is just
7925 something more extreme than anything we've seen before. We
7926 experimented with alcohol prohibition, at a time when the per capita
7927 consumption of alcohol was 1.5 gallons per capita per year. The war
7928 against drinking initially reduced that consumption to just 30 percent
7929 of its preprohibition levels, but by the end of prohibition,
7930 consumption was up to 70 percent of the preprohibition
7931 level. Americans were drinking just about as much, but now, a vast
7932 number were criminals.<a href="#ftn.idp41623984" class="footnote" name="idp41623984"><sup class="footnote">[173]</sup></a>
7933 We have
7934
7935 launched a war on drugs aimed at reducing the consumption of regulated
7936 narcotics that 7 percent (or 16 million) Americans now use.<a href="#ftn.idp41626272" class="footnote" name="idp41626272"><sup class="footnote">[174]</sup></a>
7937 That is a drop from the high (so to speak) in 1979 of 14 percent of
7938 the population. We regulate automobiles to the point where the vast
7939 majority of Americans violate the law every day. We run such a complex
7940 tax system that a majority of cash businesses regularly
7941 cheat.<a href="#ftn.idp41627600" class="footnote" name="idp41627600"><sup class="footnote">[175]</sup></a>
7942 We pride ourselves on our <span class="quote">«<span class="quote">free society,</span>»</span> but an endless array of
7943 ordinary behavior is regulated within our society. And as a result, a
7944 huge proportion of Americans regularly violate at least some law.
7945 </p><a class="indexterm" name="idp41630160"></a><p>
7946 This state of affairs is not without consequence. It is a particularly
7947 salient issue for teachers like me, whose job it is to teach law
7948 students about the importance of <span class="quote">«<span class="quote">ethics.</span>»</span> As my colleague Charlie
7949 Nesson told a class at Stanford, each year law schools admit thousands
7950 of students who have illegally downloaded music, illegally consumed
7951 alcohol and sometimes drugs, illegally worked without paying taxes,
7952 illegally driven cars. These are kids for whom behaving illegally is
7953 increasingly the norm. And then we, as law professors, are supposed to
7954 teach them how to behave ethically&#8212;how to say no to bribes, or
7955 keep client funds separate, or honor a demand to disclose a document
7956 that will mean that your case is over. Generations of
7957 Americans&#8212;more significantly in some parts of America than in
7958 others, but still, everywhere in America today&#8212;can't live their
7959 lives both normally and legally, since <span class="quote">«<span class="quote">normally</span>»</span> entails a certain
7960 degree of illegality.
7961 </p><p>
7962 The response to this general illegality is either to enforce the law
7963 more severely or to change the law. We, as a society, have to learn
7964 how to make that choice more rationally. Whether a law makes sense
7965 depends, in part, at least, upon whether the costs of the law, both
7966 intended and collateral, outweigh the benefits. If the costs, intended
7967 and collateral, do outweigh the benefits, then the law ought to be
7968 changed.  Alternatively, if the costs of the existing system are much
7969 greater than the costs of an alternative, then we have a good reason
7970 to consider the alternative.
7971 </p><p>
7972
7973
7974 My point is not the idiotic one: Just because people violate a law, we
7975 should therefore repeal it. Obviously, we could reduce murder statistics
7976 dramatically by legalizing murder on Wednesdays and Fridays. But
7977 that wouldn't make any sense, since murder is wrong every day of the
7978 week. A society is right to ban murder always and everywhere.
7979 </p><p>
7980 My point is instead one that democracies understood for generations,
7981 but that we recently have learned to forget. The rule of law depends
7982 upon people obeying the law. The more often, and more repeatedly, we
7983 as citizens experience violating the law, the less we respect the
7984 law. Obviously, in most cases, the important issue is the law, not
7985 respect for the law. I don't care whether the rapist respects the law
7986 or not; I want to catch and incarcerate the rapist. But I do care
7987 whether my students respect the law. And I do care if the rules of law
7988 sow increasing disrespect because of the extreme of regulation they
7989 impose.  Twenty million Americans have come of age since the Internet
7990 introduced this different idea of <span class="quote">«<span class="quote">sharing.</span>»</span> We need to be able to
7991 call these twenty million Americans <span class="quote">«<span class="quote">citizens,</span>»</span> not <span class="quote">«<span class="quote">felons.</span>»</span>
7992 </p><p>
7993 When at least forty-three million citizens download content from the
7994 Internet, and when they use tools to combine that content in ways
7995 unauthorized by copyright holders, the first question we should be
7996 asking is not how best to involve the FBI. The first question should
7997 be whether this particular prohibition is really necessary in order to
7998 achieve the proper ends that copyright law serves. Is there another
7999 way to assure that artists get paid without transforming forty-three
8000 million Americans into felons? Does it make sense if there are other
8001 ways to assure that artists get paid without transforming America into
8002 a nation of felons?
8003 </p><p>
8004 This abstract point can be made more clear with a particular example.
8005 </p><p>
8006 We all own CDs. Many of us still own phonograph records. These pieces
8007 of plastic encode music that in a certain sense we have bought.  The
8008 law protects our right to buy and sell that plastic: It is not a
8009 copyright infringement for me to sell all my classical records at a
8010 used
8011
8012
8013 record store and buy jazz records to replace them. That <span class="quote">«<span class="quote">use</span>»</span> of the
8014 recordings is free.
8015 </p><p>
8016 But as the MP3 craze has demonstrated, there is another use of
8017 phonograph records that is effectively free. Because these recordings
8018 were made without copy-protection technologies, I am <span class="quote">«<span class="quote">free</span>»</span> to copy,
8019 or <span class="quote">«<span class="quote">rip,</span>»</span> music from my records onto a computer hard disk. Indeed,
8020 Apple Corporation went so far as to suggest that <span class="quote">«<span class="quote">freedom</span>»</span> was a
8021 right: In a series of commercials, Apple endorsed the <span class="quote">«<span class="quote">Rip, Mix, Burn</span>»</span>
8022 capacities of digital technologies.
8023 </p><a class="indexterm" name="idp41643280"></a><a class="indexterm" name="idxcdsmix"></a><p>
8024 This <span class="quote">«<span class="quote">use</span>»</span> of my records is certainly valuable. I have begun a large
8025 process at home of ripping all of my and my wife's CDs, and storing
8026 them in one archive. Then, using Apple's iTunes, or a wonderful
8027 program called Andromeda, we can build different play lists of our
8028 music: Bach, Baroque, Love Songs, Love Songs of Significant
8029 Others&#8212;the potential is endless. And by reducing the costs of
8030 mixing play lists, these technologies help build a creativity with
8031 play lists that is itself independently valuable. Compilations of
8032 songs are creative and meaningful in their own right.
8033 </p><p>
8034 This use is enabled by unprotected media&#8212;either CDs or records.
8035 But unprotected media also enable file sharing. File sharing threatens
8036 (or so the content industry believes) the ability of creators to earn
8037 a fair return from their creativity. And thus, many are beginning to
8038 experiment with technologies to eliminate unprotected media. These
8039 technologies, for example, would enable CDs that could not be
8040 ripped. Or they might enable spy programs to identify ripped content
8041 on people's machines.
8042 </p><p>
8043 If these technologies took off, then the building of large archives of
8044 your own music would become quite difficult. You might hang in hacker
8045 circles, and get technology to disable the technologies that protect
8046 the content. Trading in those technologies is illegal, but maybe that
8047 doesn't bother you much. In any case, for the vast majority of people,
8048 these protection technologies would effectively destroy the archiving
8049
8050
8051 use of CDs. The technology, in other words, would force us all back to
8052 the world where we either listened to music by manipulating pieces of
8053 plastic or were part of a massively complex <span class="quote">«<span class="quote">digital rights
8054 management</span>»</span> system.
8055 </p><a class="indexterm" name="idp41649952"></a><p>
8056 If the only way to assure that artists get paid were the elimination
8057 of the ability to freely move content, then these technologies to
8058 interfere with the freedom to move content would be justifiable. But
8059 what if there were another way to assure that artists are paid,
8060 without locking down any content? What if, in other words, a different
8061 system could assure compensation to artists while also preserving the
8062 freedom to move content easily?
8063 </p><p>
8064 My point just now is not to prove that there is such a system. I offer
8065 a version of such a system in the last chapter of this book. For now,
8066 the only point is the relatively uncontroversial one: If a different
8067 system achieved the same legitimate objectives that the existing
8068 copyright system achieved, but left consumers and creators much more
8069 free, then we'd have a very good reason to pursue this
8070 alternative&#8212;namely, freedom.  The choice, in other words, would
8071 not be between property and piracy; the choice would be between
8072 different property systems and the freedoms each allowed.
8073 </p><p>
8074 I believe there is a way to assure that artists are paid without
8075 turning forty-three million Americans into felons. But the salient
8076 feature of this alternative is that it would lead to a very different
8077 market for producing and distributing creativity. The dominant few,
8078 who today control the vast majority of the distribution of content in
8079 the world, would no longer exercise this extreme of control. Rather,
8080 they would go the way of the horse-drawn buggy.
8081 </p><p>
8082 Except that this generation's buggy manufacturers have already saddled
8083 Congress, and are riding the law to protect themselves against this
8084 new form of competition. For them the choice is between fortythree
8085 million Americans as criminals and their own survival.
8086 </p><p>
8087 It is understandable why they choose as they do. It is not
8088 understandable why we as a democracy continue to choose as we do. Jack
8089
8090
8091
8092 Valenti is charming; but not so charming as to justify giving up a
8093 tradition as deep and important as our tradition of free culture.
8094 </p><a class="indexterm" name="idp41655632"></a><a class="indexterm" name="idxisps"></a><p>
8095 <span class="strong"><strong>There's one more</strong></span> aspect to this
8096 corruption that is particularly important to civil liberties, and
8097 follows directly from any war of prohibition.  As Electronic Frontier
8098 Foundation attorney Fred von Lohmann describes, this is the
8099 <span class="quote">«<span class="quote">collateral damage</span>»</span> that <span class="quote">«<span class="quote">arises whenever you turn
8100 a very large percentage of the population into criminals.</span>»</span> This
8101 is the collateral damage to civil liberties generally.
8102 </p><a class="indexterm" name="idp41660272"></a><p>
8103 <span class="quote">«<span class="quote">If you can treat someone as a putative lawbreaker,</span>»</span> von Lohmann
8104 explains,
8105 </p><div class="blockquote"><blockquote class="blockquote"><p>
8106 then all of a sudden a lot of basic civil liberty protections
8107 evaporate to one degree or another. &#8230; If you're a copyright
8108 infringer, how can you hope to have any privacy rights? If you're a
8109 copyright infringer, how can you hope to be secure against seizures of
8110 your computer? How can you hope to continue to receive Internet
8111 access? &#8230; Our sensibilities change as soon as we think, <span class="quote">«<span class="quote">Oh, well,
8112 but that person's a criminal, a lawbreaker.</span>»</span> Well, what this campaign
8113 against file sharing has done is turn a remarkable percentage of the
8114 American Internet-using population into <span class="quote">«<span class="quote">lawbreakers.</span>»</span>
8115 </p></blockquote></div><p>
8116 And the consequence of this transformation of the American public
8117 into criminals is that it becomes trivial, as a matter of due process, to
8118 effectively erase much of the privacy most would presume.
8119 </p><p>
8120 Users of the Internet began to see this generally in 2003 as the RIAA
8121 launched its campaign to force Internet service providers to turn over
8122 the names of customers who the RIAA believed were violating copyright
8123 law. Verizon fought that demand and lost. With a simple request to a
8124 judge, and without any notice to the customer at all, the identity of
8125 an Internet user is revealed.
8126 </p><p>
8127
8128 The RIAA then expanded this campaign, by announcing a general strategy
8129 to sue individual users of the Internet who are alleged to have
8130 downloaded copyrighted music from file-sharing systems. But as we've
8131 seen, the potential damages from these suits are astronomical: If a
8132 family's computer is used to download a single CD's worth of music,
8133 the family could be liable for $2 million in damages. That didn't stop
8134 the RIAA from suing a number of these families, just as they had sued
8135 Jesse Jordan.<a href="#ftn.idp41666736" class="footnote" name="idp41666736"><sup class="footnote">[176]</sup></a>
8136
8137 </p><a class="indexterm" name="idxnapsterrecordingindustrytrackingusersof"></a><p>
8138 Even this understates the espionage that is being waged by the
8139 RIAA. A report from CNN late last summer described a strategy the
8140 RIAA had adopted to track Napster users.<a href="#ftn.idp41675088" class="footnote" name="idp41675088"><sup class="footnote">[177]</sup></a>
8141 Using a sophisticated hashing algorithm, the RIAA took what is in
8142 effect a fingerprint of every song in the Napster catalog. Any copy of
8143 one of those MP3s will have the same <span class="quote">«<span class="quote">fingerprint.</span>»</span>
8144 </p><p>
8145 So imagine the following not-implausible scenario: Imagine a
8146 friend gives a CD to your daughter&#8212;a collection of songs just
8147 like the cassettes you used to make as a kid. You don't know, and
8148 neither does your daughter, where these songs came from. But she
8149 copies these songs onto her computer. She then takes her computer to
8150 college and connects it to a college network, and if the college
8151 network is <span class="quote">«<span class="quote">cooperating</span>»</span> with the RIAA's espionage, and she hasn't
8152 properly protected her content from the network (do you know how to do
8153 that yourself ?), then the RIAA will be able to identify your daughter
8154 as a <span class="quote">«<span class="quote">criminal.</span>»</span>  And under the rules that universities are beginning
8155 to deploy,<a href="#ftn.idp41679808" class="footnote" name="idp41679808"><sup class="footnote">[178]</sup></a>
8156 your daughter can lose the right to use the university's computer
8157 network.  She can, in some cases, be expelled.
8158 </p><a class="indexterm" name="idp41688496"></a><a class="indexterm" name="idp41689808"></a><p>
8159 Now, of course, she'll have the right to defend herself. You can hire
8160 a lawyer for her (at $300 per hour, if you're lucky), and she can
8161 plead that she didn't know anything about the source of the songs or
8162 that they came from Napster. And it may well be that the university
8163 believes her. But the university might not believe her. It might treat
8164 this <span class="quote">«<span class="quote">contraband</span>»</span> as presumptive of guilt. And as any number of
8165 college students
8166
8167
8168 have already learned, our presumptions about innocence disappear in
8169 the middle of wars of prohibition. This war is no different.
8170 Says von Lohmann,
8171 </p><a class="indexterm" name="idp41692352"></a><div class="blockquote"><blockquote class="blockquote"><p>
8172 So when we're talking about numbers like forty to sixty million
8173 Americans that are essentially copyright infringers, you create a
8174 situation where the civil liberties of those people are very much in
8175 peril in a general matter. [I don't] think [there is any] analog where
8176 you could randomly choose any person off the street and be confident
8177 that they were committing an unlawful act that could put them on the
8178 hook for potential felony liability or hundreds of millions of dollars
8179 of civil liability. Certainly we all speed, but speeding isn't the
8180 kind of an act for which we routinely forfeit civil liberties. Some
8181 people use drugs, and I think that's the closest analog, [but] many
8182 have noted that the war against drugs has eroded all of our civil
8183 liberties because it's treated so many Americans as criminals. Well, I
8184 think it's fair to say that file sharing is an order of magnitude
8185 larger number of Americans than drug use. &#8230; If forty to sixty
8186 million Americans have become lawbreakers, then we're really on a
8187 slippery slope to lose a lot of civil liberties for all forty to sixty
8188 million of them.
8189 </p></blockquote></div><p>
8190 When forty to sixty million Americans are considered <span class="quote">«<span class="quote">criminals</span>»</span> under
8191 the law, and when the law could achieve the same objective&#8212;
8192 securing rights to authors&#8212;without these millions being
8193 considered <span class="quote">«<span class="quote">criminals,</span>»</span> who is the villain? Americans or the law?
8194 Which is American, a constant war on our own people or a concerted
8195 effort through our democracy to change our law?
8196 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp41350224" class="footnote"><p><a href="#idp41350224" class="para"><sup class="para">[157] </sup></a>
8197
8198 See Lynne W. Jeter, <em class="citetitle">Disconnected: Deceit and Betrayal at WorldCom</em>
8199 (Hoboken, N.J.: John Wiley &amp; Sons, 2003), 176, 204; for details of
8200 the settlement, see MCI press release, <span class="quote">«<span class="quote">MCI Wins U.S. District Court
8201 Approval for SEC Settlement</span>»</span> (7 July 2003), available at
8202 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #37</a>.
8203 <a class="indexterm" name="idp41352960"></a>
8204 </p></div><div id="ftn.idp41354112" class="footnote"><p><a href="#idp41354112" class="para"><sup class="para">[158] </sup></a>
8205
8206 The bill, modeled after California's tort reform model, was passed in the
8207 House of Representatives but defeated in a Senate vote in July 2003. For
8208 an overview, see Tanya Albert, <span class="quote">«<span class="quote">Measure Stalls in Senate: <span class="quote">&#8216;<span class="quote">We'll Be Back,</span>&#8217;</span>
8209 Say Tort Reformers,</span>»</span> amednews.com, 28 July 2003, available at
8210 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #38</a>,
8211 and <span class="quote">«<span class="quote">Senate Turns Back Malpractice Caps,</span>»</span> CBSNews.com, 9 July 2003,
8212 available at
8213 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #39</a>. President Bush has continued to urge tort reform in
8214 recent months.
8215 <a class="indexterm" name="idp41358096"></a>
8216 <a class="indexterm" name="idp41358912"></a>
8217 </p></div><div id="ftn.idp41363344" class="footnote"><p><a href="#idp41363344" class="para"><sup class="para">[159] </sup></a>
8218
8219
8220 See Danit Lidor, <span class="quote">«<span class="quote">Artists Just Wanna Be Free,</span>»</span> <em class="citetitle">Wired</em>, 7 July
8221 2003, available at
8222 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #40</a>. For an overview of the exhibition, see
8223 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #41</a>.
8224 </p></div><div id="ftn.idp41446032" class="footnote"><p><a href="#idp41446032" class="para"><sup class="para">[160] </sup></a>
8225
8226 See Joseph Menn, <span class="quote">«<span class="quote">Universal, EMI Sue Napster Investor,</span>»</span> <em class="citetitle">Los Angeles
8227 Times</em>, 23 April 2003. For a parallel argument about the effects on
8228 innovation in the distribution of music, see Janelle Brown, <span class="quote">«<span class="quote">The Music
8229 Revolution Will Not Be Digitized,</span>»</span> Salon.com, 1 June 2001, available
8230 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #42</a>.
8231 See also Jon Healey, <span class="quote">«<span class="quote">Online Music Services Besieged,</span>»</span> <em class="citetitle">Los Angeles
8232 Times</em>, 28 May 2001.
8233 </p></div><div id="ftn.idp41379232" class="footnote"><p><a href="#idp41379232" class="para"><sup class="para">[161] </sup></a>
8234
8235 Rafe Needleman, <span class="quote">«<span class="quote">Driving in Cars with MP3s,</span>»</span> <em class="citetitle">Business 2.0</em>, 16 June
8236 2003, available at
8237 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #43</a>. I am grateful
8238 to Dr. Mohammad Al-Ubaydli for this example.
8239 <a class="indexterm" name="idp41454816"></a>
8240 </p></div><div id="ftn.idp41479904" class="footnote"><p><a href="#idp41479904" class="para"><sup class="para">[162] </sup></a>
8241  <span class="quote">«<span class="quote">Copyright and Digital Media in a Post-Napster World,</span>»</span> GartnerG2 and
8242 the Berkman Center for Internet and Society at Harvard Law School
8243 (2003), 33&#8211;35, available at
8244 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #44</a>.
8245 </p></div><div id="ftn.idp41482848" class="footnote"><p><a href="#idp41482848" class="para"><sup class="para">[163] </sup></a>
8246
8247 GartnerG2, 26&#8211;27.
8248 </p></div><div id="ftn.idp41486160" class="footnote"><p><a href="#idp41486160" class="para"><sup class="para">[164] </sup></a>
8249
8250 See David McGuire, <span class="quote">«<span class="quote">Tech Execs Square Off Over Piracy,</span>»</span> Newsbytes,
8251 February 2002 (Entertainment).
8252 </p></div><div id="ftn.idp41495392" class="footnote"><p><a href="#idp41495392" class="para"><sup class="para">[165] </sup></a>
8253
8254 Jessica Litman, <em class="citetitle">Digital Copyright</em> (Amherst,
8255 N.Y.: Prometheus Books, 2001).
8256 <a class="indexterm" name="idp41496608"></a>
8257 <a class="indexterm" name="idp41497440"></a>
8258 </p></div><div id="ftn.idp41504384" class="footnote"><p><a href="#idp41504384" class="para"><sup class="para">[166] </sup></a>
8259
8260 <a class="indexterm" name="idp41505120"></a>
8261 The only circuit court exception is found in <em class="citetitle">Recording Industry
8262 Association of America (RIAA)</em> v. <em class="citetitle">Diamond Multimedia Systems</em>, 180 F. 3d
8263 1072 (9th Cir. 1999). There the court of appeals for the Ninth Circuit
8264 reasoned that makers of a portable MP3 player were not liable for
8265 contributory copyright infringement for a device that is unable to
8266 record or redistribute music (a device whose only copying function is
8267 to render portable a music file already stored on a user's hard
8268 drive).  At the district court level, the only exception is found in
8269 <em class="citetitle">Metro-Goldwyn-Mayer Studios, Inc</em>. v. <em class="citetitle">Grokster, Ltd</em>., 259 F. Supp. 2d
8270 1029 (C.D.  Cal., 2003), where the court found the link between the
8271 distributor and any given user's conduct too attenuated to make the
8272 distributor liable for contributory or vicarious infringement
8273 liability.
8274 </p></div><div id="ftn.idp41508704" class="footnote"><p><a href="#idp41508704" class="para"><sup class="para">[167] </sup></a>
8275
8276 <a class="indexterm" name="idp41509440"></a>
8277 <a class="indexterm" name="idp41510224"></a>
8278 <a class="indexterm" name="idp41511040"></a>
8279 <a class="indexterm" name="idp41511856"></a>
8280 For example, in July 2002, Representative Howard Berman introduced the
8281 Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize
8282 copyright holders from liability for damage done to computers when the
8283 copyright holders use technology to stop copyright infringement. In
8284 August 2002, Representative Billy Tauzin introduced a bill to mandate
8285 that technologies capable of rebroadcasting digital copies of films
8286 broadcast on TV (i.e., computers) respect a <span class="quote">«<span class="quote">broadcast flag</span>»</span> that
8287 would disable copying of that content. And in March of the same year,
8288 Senator Fritz Hollings introduced the Consumer Broadband and Digital
8289 Television Promotion Act, which mandated copyright protection
8290 technology in all digital media devices. See GartnerG2, <span class="quote">«<span class="quote">Copyright and
8291 Digital Media in a Post-Napster World,</span>»</span> 27 June 2003, 33&#8211;34,
8292 available at
8293 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #44</a>.
8294 </p></div><div id="ftn.idp41452272" class="footnote"><p><a href="#idp41452272" class="para"><sup class="para">[168] </sup></a>
8295
8296 Lessing, 239.
8297 </p></div><div id="ftn.idp41533376" class="footnote"><p><a href="#idp41533376" class="para"><sup class="para">[169] </sup></a>
8298
8299 Ibid., 229.
8300 </p></div><div id="ftn.idp41552848" class="footnote"><p><a href="#idp41552848" class="para"><sup class="para">[170] </sup></a>
8301
8302 This example was derived from fees set by the original Copyright
8303 Arbitration Royalty Panel (CARP) proceedings, and is drawn from an
8304 example offered by Professor William Fisher. Conference Proceedings,
8305 iLaw (Stanford), 3 July 2003, on file with author. Professors Fisher
8306 and Zittrain submitted testimony in the CARP proceeding that was
8307 ultimately rejected.  See Jonathan Zittrain, Digital Performance Right
8308 in Sound Recordings and Ephemeral Recordings, Docket No. 2000-9, CARP
8309 DTRA 1 and 2, available at
8310 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #45</a>.
8311 For an excellent analysis making a similar point, see Randal
8312 C. Picker, <span class="quote">«<span class="quote">Copyright as Entry Policy: The Case of Digital
8313 Distribution,</span>»</span> <em class="citetitle">Antitrust Bulletin</em> (Summer/Fall 2002): 461: <span class="quote">«<span class="quote">This was
8314 not confusion, these are just old-fashioned entry barriers. Analog
8315 radio stations are protected from digital entrants, reducing entry in
8316 radio and diversity. Yes, this is done in the name of getting
8317 royalties to copyright holders, but, absent the play of powerful
8318 interests, that could have been done in a media-neutral way.</span>»</span>
8319 <a class="indexterm" name="idp41556560"></a>
8320 <a class="indexterm" name="idp41557344"></a>
8321 </p></div><div id="ftn.idp41615696" class="footnote"><p><a href="#idp41615696" class="para"><sup class="para">[171] </sup></a>
8322  Mike Graziano and Lee Rainie, <span class="quote">«<span class="quote">The Music Downloading Deluge,</span>»</span> Pew
8323 Internet and American Life Project (24 April 2001), available at
8324 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #46</a>.
8325 The Pew Internet and American Life Project reported that 37 million
8326 Americans had downloaded music files from the Internet by early 2001.
8327 </p></div><div id="ftn.idp41551952" class="footnote"><p><a href="#idp41551952" class="para"><sup class="para">[172] </sup></a>
8328
8329 Alex Pham, <span class="quote">«<span class="quote">The Labels Strike Back: N.Y. Girl Settles RIAA Case,</span>»</span> <em class="citetitle">Los
8330 Angeles Times</em>, 10 September 2003, Business.
8331 </p></div><div id="ftn.idp41623984" class="footnote"><p><a href="#idp41623984" class="para"><sup class="para">[173] </sup></a>
8332
8333 Jeffrey A. Miron and Jeffrey Zwiebel, <span class="quote">«<span class="quote">Alcohol Consumption During
8334 Prohibition,</span>»</span> <em class="citetitle">American Economic Review</em> 81, no. 2 (1991): 242.
8335 </p></div><div id="ftn.idp41626272" class="footnote"><p><a href="#idp41626272" class="para"><sup class="para">[174] </sup></a>
8336
8337 National Drug Control Policy: Hearing Before the House Government
8338 Reform Committee, 108th Cong., 1st sess. (5 March 2003) (statement of
8339 John P. Walters, director of National Drug Control Policy).
8340 </p></div><div id="ftn.idp41627600" class="footnote"><p><a href="#idp41627600" class="para"><sup class="para">[175] </sup></a>
8341
8342 See James Andreoni, Brian Erard, and Jonathon Feinstein, <span class="quote">«<span class="quote">Tax
8343 Compliance,</span>»</span> <em class="citetitle">Journal of Economic Literature</em> 36 (1998): 818 (survey of
8344 compliance literature).
8345 </p></div><div id="ftn.idp41666736" class="footnote"><p><a href="#idp41666736" class="para"><sup class="para">[176] </sup></a>
8346
8347 See Frank Ahrens, <span class="quote">«<span class="quote">RIAA's Lawsuits Meet Surprised Targets; Single
8348 Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,</span>»</span>
8349 <em class="citetitle">Washington Post</em>, 10 September 2003, E1; Chris Cobbs, <span class="quote">«<span class="quote">Worried Parents
8350 Pull Plug on File <span class="quote">&#8216;<span class="quote">Stealing</span>&#8217;</span>; With the Music Industry Cracking Down on
8351 File Swapping, Parents are Yanking Software from Home PCs to Avoid
8352 Being Sued,</span>»</span> <em class="citetitle">Orlando Sentinel Tribune</em>, 30 August 2003, C1; Jefferson
8353 Graham, <span class="quote">«<span class="quote">Recording Industry Sues Parents,</span>»</span> <em class="citetitle">USA Today</em>, 15 September
8354 2003, 4D; John Schwartz, <span class="quote">«<span class="quote">She Says She's No Music Pirate. No Snoop
8355 Fan, Either,</span>»</span> <em class="citetitle">New York Times</em>, 25 September 2003, C1; Margo Varadi, <span class="quote">«<span class="quote">Is
8356 Brianna a Criminal?</span>»</span> <em class="citetitle">Toronto Star</em>, 18 September 2003, P7.
8357 </p></div><div id="ftn.idp41675088" class="footnote"><p><a href="#idp41675088" class="para"><sup class="para">[177] </sup></a>
8358
8359 See <span class="quote">«<span class="quote">Revealed: How RIAA Tracks Downloaders: Music Industry Discloses
8360 Some Methods Used,</span>»</span> CNN.com, available at
8361 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #47</a>.
8362 </p></div><div id="ftn.idp41679808" class="footnote"><p><a href="#idp41679808" class="para"><sup class="para">[178] </sup></a>
8363
8364 See Jeff Adler, <span class="quote">«<span class="quote">Cambridge: On Campus, Pirates Are Not Penitent,</span>»</span>
8365 <em class="citetitle">Boston Globe</em>, 18 May 2003, City Weekly, 1; Frank Ahrens, <span class="quote">«<span class="quote">Four
8366 Students Sued over Music Sites; Industry Group Targets File Sharing at
8367 Colleges,</span>»</span> <em class="citetitle">Washington Post</em>, 4 April 2003, E1; Elizabeth Armstrong,
8368 <span class="quote">«<span class="quote">Students <span class="quote">&#8216;<span class="quote">Rip, Mix, Burn</span>&#8217;</span> at Their Own Risk,</span>»</span> <em class="citetitle">Christian Science
8369 Monitor</em>, 2 September 2003, 20; Robert Becker and Angela Rozas, <span class="quote">«<span class="quote">Music
8370 Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over;
8371 Lawsuit Possible,</span>»</span> <em class="citetitle">Chicago Tribune</em>, 16 July 2003, 1C; Beth Cox, <span class="quote">«<span class="quote">RIAA
8372 Trains Antipiracy Guns on Universities,</span>»</span> <em class="citetitle">Internet News</em>, 30 January
8373 2003, available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
8374 #48</a>; Benny Evangelista, <span class="quote">«<span class="quote">Download Warning 101: Freshman
8375 Orientation This Fall to Include Record Industry Warnings Against File
8376 Sharing,</span>»</span> <em class="citetitle">San Francisco Chronicle</em>, 11 August 2003, E11; <span class="quote">«<span class="quote">Raid, Letters
8377 Are Weapons at Universities,</span>»</span> <em class="citetitle">USA Today</em>, 26 September 2000, 3D.
8378 </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>
8379 <span class="strong"><strong>So here's</strong></span> the picture: You're
8380 standing at the side of the road. Your car is on fire. You are angry
8381 and upset because in part you helped start the fire. Now you don't
8382 know how to put it out. Next to you is a bucket, filled with
8383 gasoline. Obviously, gasoline won't put the fire out.
8384 </p><p>
8385 As you ponder the mess, someone else comes along. In a panic, she
8386 grabs the bucket. Before you have a chance to tell her to
8387 stop&#8212;or before she understands just why she should
8388 stop&#8212;the bucket is in the air.  The gasoline is about to hit the
8389 blazing car. And the fire that gasoline will ignite is about to ignite
8390 everything around.
8391 </p><p>
8392 <span class="strong"><strong>A war</strong></span> about copyright rages all
8393 around&#8212;and we're all focusing on the wrong thing. No doubt,
8394 current technologies threaten existing businesses.  No doubt they may
8395 threaten artists. But technologies change.  The industry and
8396 technologists have plenty of ways to use technology to protect
8397 themselves against the current threats of the Internet. This is a fire
8398 that if let alone would burn itself out.
8399 </p><p>
8400
8401 Yet policy makers are not willing to leave this fire to itself. Primed
8402 with plenty of lobbyists' money, they are keen to intervene to
8403 eliminate the problem they perceive. But the problem they perceive is
8404 not the real threat this culture faces. For while we watch this small
8405 fire in the corner, there is a massive change in the way culture is
8406 made that is happening all around.
8407 </p><p>
8408 Somehow we have to find a way to turn attention to this more important
8409 and fundamental issue. Somehow we have to find a way to avoid pouring
8410 gasoline onto this fire.
8411 </p><p>
8412 We have not found that way yet. Instead, we seem trapped in a simpler,
8413 binary view. However much many people push to frame this debate more
8414 broadly, it is the simple, binary view that remains. We rubberneck to
8415 look at the fire when we should be keeping our eyes on the road.
8416 </p><p>
8417 This challenge has been my life these last few years. It has also been
8418 my failure. In the two chapters that follow, I describe one small
8419 brace of efforts, so far failed, to find a way to refocus this
8420 debate. We must understand these failures if we're to understand what
8421 success will require.
8422 </p></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="eldred"></a>Chapter 13. Chapter Thirteen: Eldred</h2></div></div></div><a class="indexterm" name="idxeldrederic"></a><a class="indexterm" name="idxhawthornenathaniel"></a><p>
8423 <span class="strong"><strong>In 1995</strong></span>, a father was frustrated
8424 that his daughters didn't seem to like Hawthorne. No doubt there was
8425 more than one such father, but at least one did something about
8426 it. Eric Eldred, a retired computer programmer living in New
8427 Hampshire, decided to put Hawthorne on the Web. An electronic version,
8428 Eldred thought, with links to pictures and explanatory text, would
8429 make this nineteenth-century author's work come alive.
8430 </p><a class="indexterm" name="idxlibrariesofpublicdomainliterature"></a><a class="indexterm" name="idxpublicdomainlibraryofworksderivedfrom"></a><p>
8431 It didn't work&#8212;at least for his daughters. They didn't find
8432 Hawthorne any more interesting than before. But Eldred's experiment
8433 gave birth to a hobby, and his hobby begat a cause: Eldred would build
8434 a library of public domain works by scanning these works and making
8435 them available for free.
8436 </p><a class="indexterm" name="idxdisneywalt5"></a><a class="indexterm" name="idp41718592"></a><p>
8437 Eldred's library was not simply a copy of certain public domain
8438 works, though even a copy would have been of great value to people
8439 across the world who can't get access to printed versions of these
8440 works. Instead, Eldred was producing derivative works from these
8441 public domain works. Just as Disney turned Grimm into stories more
8442
8443 accessible to the twentieth century, Eldred transformed Hawthorne, and
8444 many others, into a form more accessible&#8212;technically
8445 accessible&#8212;today.
8446 </p><a class="indexterm" name="idp41716688"></a><p>
8447 Eldred's freedom to do this with Hawthorne's work grew from the same
8448 source as Disney's. Hawthorne's <em class="citetitle">Scarlet Letter</em> had passed into the
8449 public domain in 1907. It was free for anyone to take without the
8450 permission of the Hawthorne estate or anyone else. Some, such as Dover
8451 Press and Penguin Classics, take works from the public domain and
8452 produce printed editions, which they sell in bookstores across the
8453 country. Others, such as Disney, take these stories and turn them into
8454 animated cartoons, sometimes successfully (<em class="citetitle">Cinderella</em>), sometimes not
8455 (<em class="citetitle">The Hunchback of Notre Dame</em>, <em class="citetitle">Treasure Planet</em>). These are all
8456 commercial publications of public domain works.
8457 </p><a class="indexterm" name="idp41724048"></a><a class="indexterm" name="idp41725360"></a><p>
8458 The Internet created the possibility of noncommercial publications of
8459 public domain works. Eldred's is just one example. There are literally
8460 thousands of others. Hundreds of thousands from across the world have
8461 discovered this platform of expression and now use it to share works
8462 that are, by law, free for the taking. This has produced what we might
8463 call the <span class="quote">«<span class="quote">noncommercial publishing industry,</span>»</span> which before the
8464 Internet was limited to people with large egos or with political or
8465 social causes. But with the Internet, it includes a wide range of
8466 individuals and groups dedicated to spreading culture
8467 generally.<a href="#ftn.idp41727984" class="footnote" name="idp41727984"><sup class="footnote">[179]</sup></a>
8468 </p><a class="indexterm" name="idxcongressuscopyrighttermsextendedby2"></a><a class="indexterm" name="idxcopyrightdurationof6"></a><a class="indexterm" name="idxcopyrightlawtermextensionsin2"></a><a class="indexterm" name="idp41736384"></a><a class="indexterm" name="idp41737200"></a><a class="indexterm" name="idp41738016"></a><a class="indexterm" name="idxpatentsfuturepatentsvsfuturecopyrightsin"></a><p>
8469 As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's
8470 collection of poems <em class="citetitle">New Hampshire</em> was slated to
8471 pass into the public domain. Eldred wanted to post that collection in
8472 his free public library.  But Congress got in the way. As I described
8473 in chapter <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>, in 1998, for the eleventh time in forty years,
8474 Congress extended the terms of existing copyrights&#8212;this time by
8475 twenty years. Eldred would not be free to add any works more recent
8476 than 1923 to his collection until 2019.  Indeed, no copyrighted work
8477 would pass into the public domain until that year (and not even then,
8478 if Congress extends the term again). By contrast, in the same period,
8479 more than 1 million patents will pass into the public domain.
8480 </p><a class="indexterm" name="idp41743552"></a><a class="indexterm" name="idp41744736"></a><a class="indexterm" name="idp41746128"></a><a class="indexterm" name="idp41746944"></a><a class="indexterm" name="idxcopyrightinperpetuity4"></a><a class="indexterm" name="idxsonnybonocopyrighttermextensionactctea2"></a><p>
8481
8482
8483 This was the Sonny Bono Copyright Term Extension Act
8484 (CTEA), enacted in memory of the congressman and former musician
8485 Sonny Bono, who, his widow, Mary Bono, says, believed that
8486 <span class="quote">«<span class="quote">copyrights should be forever.</span>»</span><a href="#ftn.idp41752352" class="footnote" name="idp41752352"><sup class="footnote">[180]</sup></a>
8487 </p><a class="indexterm" name="idp41756928"></a><a class="indexterm" name="idp41758304"></a><a class="indexterm" name="idp41759424"></a><a class="indexterm" name="idp41760256"></a><a class="indexterm" name="idp41761088"></a><p>
8488 Eldred decided to fight this law. He first resolved to fight it through
8489 civil disobedience. In a series of interviews, Eldred announced that he
8490 would publish as planned, CTEA notwithstanding. But because of a
8491 second law passed in 1998, the NET (No Electronic Theft) Act, his act
8492 of publishing would make Eldred a felon&#8212;whether or not anyone
8493 complained. This was a dangerous strategy for a disabled programmer
8494 to undertake.
8495 </p><a class="indexterm" name="idp41762464"></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>
8496 It was here that I became involved in Eldred's battle. I was a
8497                 constitutional
8498 scholar whose first passion was constitutional
8499                 interpretation.
8500 And though constitutional law courses never focus upon the
8501 Progress Clause of the Constitution, it had always struck me as
8502                 importantly
8503 different. As you know, the Constitution says,
8504 </p><div class="blockquote"><blockquote class="blockquote"><p>
8505 Congress has the power to promote the Progress of Science &#8230;
8506 by securing for limited Times to Authors &#8230; exclusive Right to
8507 their &#8230; Writings. &#8230;
8508 </p></blockquote></div><a class="indexterm" name="idp41773488"></a><p>
8509 As I've described, this clause is unique within the power-granting
8510 clause of Article I, section 8 of our Constitution. Every other clause
8511 granting power to Congress simply says Congress has the power to do
8512 something&#8212;for example, to regulate <span class="quote">«<span class="quote">commerce among the several
8513 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
8514 specific&#8212;to <span class="quote">«<span class="quote">promote &#8230; Progress</span>»</span>&#8212;through means that
8515 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.,
8516 copyrights) <span class="quote">«<span class="quote">for limited Times.</span>»</span>
8517 </p><a class="indexterm" name="idp41778528"></a><a class="indexterm" name="idp41779872"></a><a class="indexterm" name="idp41781136"></a><a class="indexterm" name="idp41782512"></a><p>
8518 In the past forty years, Congress has gotten into the practice of
8519 extending existing terms of copyright protection. What puzzled me
8520 about this was, if Congress has the power to extend existing terms,
8521 then the Constitution's requirement that terms be <span class="quote">«<span class="quote">limited</span>»</span> will have
8522
8523 no practical effect. If every time a copyright is about to expire,
8524 Congress has the power to extend its term, then Congress can achieve
8525 what the Constitution plainly forbids&#8212;perpetual terms <span class="quote">«<span class="quote">on the
8526 installment plan,</span>»</span> as Professor Peter Jaszi so nicely put it.
8527 </p><a class="indexterm" name="idp41785408"></a><a class="indexterm" name="idp41786704"></a><a class="indexterm" name="idp41788048"></a><p>
8528 As an academic, my first response was to hit the books. I remember
8529 sitting late at the office, scouring on-line databases for any serious
8530 consideration of the question. No one had ever challenged Congress's
8531 practice of extending existing terms. That failure may in part be why
8532 Congress seemed so untroubled in its habit. That, and the fact that
8533 the practice had become so lucrative for Congress. Congress knows that
8534 copyright owners will be willing to pay a great deal of money to see
8535 their copyright terms extended. And so Congress is quite happy to keep
8536 this gravy train going.
8537 </p><p>
8538 For this is the core of the corruption in our present system of
8539 government. <span class="quote">«<span class="quote">Corruption</span>»</span> not in the sense that representatives are
8540 bribed.  Rather, <span class="quote">«<span class="quote">corruption</span>»</span> in the sense that the system induces the
8541 beneficiaries of Congress's acts to raise and give money to Congress
8542 to induce it to act. There's only so much time; there's only so much
8543 Congress can do. Why not limit its actions to those things it must
8544 do&#8212;and those things that pay? Extending copyright terms pays.
8545 </p><p>
8546 If that's not obvious to you, consider the following: Say you're one
8547 of the very few lucky copyright owners whose copyright continues to
8548 make money one hundred years after it was created. The Estate of
8549 Robert Frost is a good example. Frost died in 1963. His poetry
8550 continues to be extraordinarily valuable. Thus the Robert Frost estate
8551 benefits greatly from any extension of copyright, since no publisher
8552 would pay the estate any money if the poems Frost wrote could be
8553 published by anyone for free.
8554 </p><p>
8555 So imagine the Robert Frost estate is earning $100,000 a year from
8556 three of Frost's poems. And imagine the copyright for those poems
8557 is about to expire. You sit on the board of the Robert Frost estate.
8558 Your financial adviser comes to your board meeting with a very grim
8559 report:
8560 </p><p>
8561 <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,
8562
8563
8564 and C will expire. That means that after next year, we will no longer be
8565 receiving the annual royalty check of $100,000 from the publishers of
8566 those works.</span>»</span>
8567 </p><p>
8568 <span class="quote">«<span class="quote">There's a proposal in Congress, however,</span>»</span> she continues, <span class="quote">«<span class="quote">that
8569 could change this. A few congressmen are floating a bill to extend the
8570 terms of copyright by twenty years. That bill would be extraordinarily
8571 valuable to us. So we should hope this bill passes.</span>»</span>
8572 </p><p>
8573 <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
8574 about it?</span>»</span>
8575 </p><p>
8576 <span class="quote">«<span class="quote">Well, obviously, yes,</span>»</span> the adviser responds. <span class="quote">«<span class="quote">We could contribute
8577 to the campaigns of a number of representatives to try to assure that
8578 they support the bill.</span>»</span>
8579 </p><p>
8580 You hate politics. You hate contributing to campaigns. So you want
8581 to know whether this disgusting practice is worth it. <span class="quote">«<span class="quote">How much
8582 would we get if this extension were passed?</span>»</span> you ask the adviser. <span class="quote">«<span class="quote">How
8583 much is it worth?</span>»</span>
8584 </p><p>
8585 <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
8586 to get at least $100,000 a year from these copyrights, and you use the
8587 <span class="quote">&#8216;<span class="quote">discount rate</span>&#8217;</span> that we use to evaluate estate investments (6 percent),
8588 then this law would be worth $1,146,000 to the estate.</span>»</span>
8589 </p><p>
8590 You're a bit shocked by the number, but you quickly come to the
8591 correct conclusion:
8592 </p><p>
8593 <span class="quote">«<span class="quote">So you're saying it would be worth it for us to pay more than
8594 $1,000,000 in campaign contributions if we were confident those
8595                 contributions
8596 would assure that the bill was passed?</span>»</span>
8597 </p><p>
8598 <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
8599                 contribute
8600 up to the <span class="quote">&#8216;<span class="quote">present value</span>&#8217;</span> of the income you expect from these
8601 copyrights. Which for us means over $1,000,000.</span>»</span>
8602 </p><p>
8603 You quickly get the point&#8212;you as the member of the board and, I
8604 trust, you the reader. Each time copyrights are about to expire, every
8605 beneficiary in the position of the Robert Frost estate faces the same
8606 choice: If they can contribute to get a law passed to extend copyrights,
8607
8608 they will benefit greatly from that extension. And so each time
8609         copyrights
8610 are about to expire, there is a massive amount of lobbying to get
8611 the copyright term extended.
8612 </p><p>
8613 Thus a congressional perpetual motion machine: So long as legislation
8614 can be bought (albeit indirectly), there will be all the incentive in
8615 the world to buy further extensions of copyright.
8616 </p><p>
8617 In the lobbying that led to the passage of the Sonny Bono
8618                 Copyright
8619 Term Extension Act, this <span class="quote">«<span class="quote">theory</span>»</span> about incentives was proved
8620 real. Ten of the thirteen original sponsors of the act in the House
8621 received the maximum contribution from Disney's political action
8622 committee; in the Senate, eight of the twelve sponsors received
8623                 contributions.<a href="#ftn.idp41808528" class="footnote" name="idp41808528"><sup class="footnote">[181]</sup></a>
8624  The RIAA and the MPAA are estimated to have spent over
8625 $1.5 million lobbying in the 1998 election cycle. They paid out more
8626 than $200,000 in campaign contributions.<a href="#ftn.idp41810528" class="footnote" name="idp41810528"><sup class="footnote">[182]</sup></a>
8627  Disney is estimated to have
8628 contributed more than $800,000 to reelection campaigns in the
8629 cycle.<a href="#ftn.idp41812640" class="footnote" name="idp41812640"><sup class="footnote">[183]</sup></a>
8630
8631 </p><p>
8632 <span class="strong"><strong>Constitutional law</strong></span> is not oblivious
8633 to the obvious. Or at least, it need not be. So when I was considering
8634 Eldred's complaint, this reality about the never-ending incentives to
8635 increase the copyright term was central to my thinking. In my view, a
8636 pragmatic court committed to interpreting and applying the
8637 Constitution of our framers would see that if Congress has the power
8638 to extend existing terms, then there would be no effective
8639 constitutional requirement that terms be <span class="quote">«<span class="quote">limited.</span>»</span> If
8640 they could extend it once, they would extend it again and again and
8641 again.
8642 </p><a class="indexterm" name="idp41817328"></a><a class="indexterm" name="idp41818720"></a><a class="indexterm" name="idp41819984"></a><p>
8643 It was also my judgment that <span class="emphasis"><em>this</em></span> Supreme Court
8644 would not allow Congress to extend existing terms. As anyone close to
8645 the Supreme Court's work knows, this Court has increasingly restricted
8646 the power of Congress when it has viewed Congress's actions as
8647 exceeding the power granted to it by the Constitution. Among
8648 constitutional scholars, the most famous example of this trend was the
8649 Supreme Court's
8650
8651
8652 decision in 1995 to strike down a law that banned the possession of
8653 guns near schools.
8654 </p><a class="indexterm" name="idxcommerceinterstate"></a><a class="indexterm" name="idxcongressusconstitutionalpowersof2"></a><a class="indexterm" name="idxinterstatecommerce"></a><p>
8655 Since 1937, the Supreme Court had interpreted Congress's granted
8656 powers very broadly; so, while the Constitution grants Congress the
8657 power to regulate only <span class="quote">«<span class="quote">commerce among the several states</span>»</span> (aka
8658                 <span class="quote">«<span class="quote">interstate
8659 commerce</span>»</span>), the Supreme Court had interpreted that power to
8660 include the power to regulate any activity that merely affected
8661                 interstate
8662 commerce.
8663 </p><p>
8664 As the economy grew, this standard increasingly meant that there was
8665 no limit to Congress's power to regulate, since just about every
8666 activity, when considered on a national scale, affects interstate
8667 commerce.  A Constitution designed to limit Congress's power was
8668 instead interpreted to impose no limit.
8669 </p><a class="indexterm" name="idp41830192"></a><a class="indexterm" name="idxunitedstatesvlopez"></a><p>
8670 The Supreme Court, under Chief Justice Rehnquist's command, changed
8671 that in <em class="citetitle">United States</em> v. <em class="citetitle">Lopez</em>. The government had
8672 argued that possessing guns near schools affected interstate
8673 commerce. Guns near schools increase crime, crime lowers property
8674 values, and so on. In the oral argument, the Chief Justice asked the
8675 government whether there was any activity that would not affect
8676 interstate commerce under the reasoning the government advanced. The
8677 government said there was not; if Congress says an activity affects
8678 interstate commerce, then that activity affects interstate
8679 commerce. The Supreme Court, the government said, was not in the
8680 position to second-guess Congress.
8681 </p><p>
8682 <span class="quote">«<span class="quote">We pause to consider the implications of the government's arguments,</span>»</span>
8683 the Chief Justice wrote.<a href="#ftn.idp41835216" class="footnote" name="idp41835216"><sup class="footnote">[184]</sup></a>
8684 If anything Congress says is interstate commerce must therefore be
8685 considered interstate commerce, then there would be no limit to
8686 Congress's power. The decision in <em class="citetitle">Lopez</em> was reaffirmed five years
8687 later in <em class="citetitle">United States</em> v. <em class="citetitle">Morrison</em>.<a href="#ftn.idp41838464" class="footnote" name="idp41838464"><sup class="footnote">[185]</sup></a>
8688 </p><a class="indexterm" name="idp41841152"></a><a class="indexterm" name="idp41842400"></a><p>
8689 If a principle were at work here, then it should apply to the Progress
8690 Clause as much as the Commerce Clause.<a href="#ftn.idp41844096" class="footnote" name="idp41844096"><sup class="footnote">[186]</sup></a>
8691 And if it is applied to the Progress Clause, the principle should
8692 yield the conclusion that Congress
8693
8694 can't extend an existing term. If Congress could extend an existing
8695 term, then there would be no <span class="quote">«<span class="quote">stopping point</span>»</span> to Congress's power over
8696 terms, though the Constitution expressly states that there is such a
8697 limit. Thus, the same principle applied to the power to grant
8698 copyrights should entail that Congress is not allowed to extend the
8699 term of existing copyrights.
8700 </p><a class="indexterm" name="idp41847264"></a><a class="indexterm" name="idxcongressussupremecourtrestrainton2"></a><a class="indexterm" name="idp41850480"></a><p>
8701 <span class="emphasis"><em>If</em></span>, that is, the principle announced in <em class="citetitle">Lopez</em>
8702 stood for a principle.  Many believed the decision in <em class="citetitle">Lopez</em> stood for
8703 politics&#8212;a conservative Supreme Court, which believed in states'
8704 rights, using its power over Congress to advance its own personal
8705 political preferences. But I rejected that view of the Supreme Court's
8706 decision. Indeed, shortly after the decision, I wrote an article
8707 demonstrating the <span class="quote">«<span class="quote">fidelity</span>»</span> in such an interpretation of the
8708 Constitution. The idea that the Supreme Court decides cases based upon
8709 its politics struck me as extraordinarily boring.  I was not going to
8710 devote my life to teaching constitutional law if these nine Justices
8711 were going to be petty politicians.
8712 </p><a class="indexterm" name="idp41854128"></a><a class="indexterm" name="idp41855424"></a><a class="indexterm" name="idp41856496"></a><a class="indexterm" name="idp41857616"></a><a class="indexterm" name="idp41858720"></a><p>
8713 <span class="strong"><strong>Now let's pause</strong></span> for a moment to
8714 make sure we understand what the argument in
8715 <em class="citetitle">Eldred</em> was not about. By insisting on the
8716 Constitution's limits to copyright, obviously Eldred was not endorsing
8717 piracy.  Indeed, in an obvious sense, he was fighting a kind of
8718 piracy&#8212;piracy of the public domain. When Robert Frost wrote his
8719 work and when Walt Disney created Mickey Mouse, the maximum copyright
8720 term was just fifty-six years. Because of interim changes, Frost and
8721 Disney had already enjoyed a seventy-five-year monopoly for their
8722 work. They had gotten the benefit of the bargain that the Constitution
8723 envisions: In exchange for a monopoly protected for fifty-six years,
8724 they created new work. But now these entities were using their
8725 power&#8212;expressed through the power of lobbyists' money&#8212;to
8726 get another twenty-year dollop of monopoly. That twenty-year dollop
8727 would be taken from the public domain. Eric Eldred was fighting a
8728 piracy that affects us all.
8729 </p><a class="indexterm" name="idp41860976"></a><p>
8730 Some people view the public domain with contempt. In their brief
8731
8732
8733 before the Supreme Court, the Nashville Songwriters Association
8734 wrote that the public domain is nothing more than <span class="quote">«<span class="quote">legal piracy.</span>»</span><a href="#ftn.idp41863872" class="footnote" name="idp41863872"><sup class="footnote">[187]</sup></a>
8735 But it is not piracy when the law allows it; and in our constitutional
8736 system, our law requires it. Some may not like the Constitution's
8737 requirements, but that doesn't make the Constitution a pirate's
8738 charter.
8739 </p><p>
8740 As we've seen, our constitutional system requires limits on
8741                 copyright
8742 as a way to assure that copyright holders do not too heavily
8743                 influence
8744 the development and distribution of our culture. Yet, as Eric
8745 Eldred discovered, we have set up a system that assures that copyright
8746 terms will be repeatedly extended, and extended, and extended. We
8747 have created the perfect storm for the public domain. Copyrights have
8748 not expired, and will not expire, so long as Congress is free to be
8749 bought to extend them again.
8750 </p><a class="indexterm" name="idp41867680"></a><p>
8751 <span class="strong"><strong>It is valuable</strong></span> copyrights that are
8752 responsible for terms being extended.  Mickey Mouse and
8753 <span class="quote">«<span class="quote">Rhapsody in Blue.</span>»</span> These works are too valuable for
8754 copyright owners to ignore. But the real harm to our society from
8755 copyright extensions is not that Mickey Mouse remains Disney's.
8756 Forget Mickey Mouse. Forget Robert Frost. Forget all the works from
8757 the 1920s and 1930s that have continuing commercial value. The real
8758 harm of term extension comes not from these famous works. The real
8759 harm is to the works that are not famous, not commercially exploited,
8760 and no longer available as a result.
8761 </p><p>
8762 If you look at the work created in the first twenty years (1923 to
8763 1942) affected by the Sonny Bono Copyright Term Extension Act,
8764 2 percent of that work has any continuing commercial value. It was the
8765 copyright holders for that 2 percent who pushed the CTEA through.
8766 But the law and its effect were not limited to that 2 percent. The law
8767 extended the terms of copyright generally.<a href="#ftn.idp41871808" class="footnote" name="idp41871808"><sup class="footnote">[188]</sup></a>
8768
8769 </p><a class="indexterm" name="idp41874512"></a><p>
8770 Think practically about the consequence of this
8771                 extension&#8212;practically,
8772 as a businessperson, and not as a lawyer eager for more legal
8773
8774
8775 work. In 1930, 10,047 books were published. In 2000, 174 of those
8776 books were still in print. Let's say you were Brewster Kahle, and you
8777 wanted to make available to the world in your iArchive project the
8778                 remaining
8779 9,873. What would you have to do?
8780 </p><a class="indexterm" name="idp41876544"></a><p>
8781 Well, first, you'd have to determine which of the 9,873 books were
8782 still under copyright. That requires going to a library (these data are
8783 not on-line) and paging through tomes of books, cross-checking the
8784 titles and authors of the 9,873 books with the copyright registration
8785 and renewal records for works published in 1930. That will produce a
8786 list of books still under copyright.
8787 </p><p>
8788 Then for the books still under copyright, you would need to locate
8789 the current copyright owners. How would you do that?
8790 </p><p>
8791 Most people think that there must be a list of these copyright
8792                 owners
8793 somewhere. Practical people think this way. How could there be
8794 thousands and thousands of government monopolies without there
8795 being at least a list?
8796 </p><p>
8797 But there is no list. There may be a name from 1930, and then in
8798 1959, of the person who registered the copyright. But just think
8799                 practically
8800 about how impossibly difficult it would be to track down
8801                 thousands
8802 of such records&#8212;especially since the person who registered is
8803 not necessarily the current owner. And we're just talking about 1930!
8804 </p><p>
8805 <span class="quote">«<span class="quote">But there isn't a list of who owns property generally,</span>»</span> the
8806 apologists for the system respond. <span class="quote">«<span class="quote">Why should there be a list of
8807 copyright owners?</span>»</span>
8808 </p><p>
8809 Well, actually, if you think about it, there <span class="emphasis"><em>are</em></span>
8810 plenty of lists of who owns what property. Think about deeds on
8811 houses, or titles to cars.  And where there isn't a list, the code of
8812 real space is pretty good at suggesting who the owner of a bit of
8813 property is. (A swing set in your backyard is probably yours.) So
8814 formally or informally, we have a pretty good way to know who owns
8815 what tangible property.
8816 </p><p>
8817 So: You walk down a street and see a house. You can know who
8818 owns the house by looking it up in the courthouse registry. If you see
8819 a car, there is ordinarily a license plate that will link the owner to the
8820
8821
8822 car. If you see a bunch of children's toys sitting on the front lawn of a
8823 house, it's fairly easy to determine who owns the toys. And if you
8824                 happen
8825 to see a baseball lying in a gutter on the side of the road, look
8826 around for a second for some kids playing ball. If you don't see any
8827 kids, then okay: Here's a bit of property whose owner we can't easily
8828 determine. It is the exception that proves the rule: that we ordinarily
8829 know quite well who owns what property.
8830 </p><p>
8831 Compare this story to intangible property. You go into a library.
8832 The library owns the books. But who owns the copyrights? As I've
8833                 already
8834 described, there's no list of copyright owners. There are authors'
8835 names, of course, but their copyrights could have been assigned, or
8836 passed down in an estate like Grandma's old jewelry. To know who
8837 owns what, you would have to hire a private detective. The bottom
8838 line: The owner cannot easily be located. And in a regime like ours, in
8839 which it is a felony to use such property without the property owner's
8840 permission, the property isn't going to be used.
8841 </p><p>
8842 The consequence with respect to old books is that they won't be
8843 digitized, and hence will simply rot away on shelves. But the
8844                 consequence
8845 for other creative works is much more dire.
8846 </p><a class="indexterm" name="idxageemichael"></a><a class="indexterm" name="idp41887040"></a><a class="indexterm" name="idp41887856"></a><a class="indexterm" name="idp41888672"></a><p>
8847 Consider the story of Michael Agee, chairman of Hal Roach Studios,
8848 which owns the copyrights for the Laurel and Hardy films. Agee is a
8849 direct beneficiary of the Bono Act. The Laurel and Hardy films were
8850 made between 1921 and 1951. Only one of these films, <em class="citetitle">The Lucky Dog</em>, is
8851 currently out of copyright. But for the CTEA, films made after 1923
8852 would have begun entering the public domain. Because Agee controls the
8853 exclusive rights for these popular films, he makes a great deal of
8854 money. According to one estimate, <span class="quote">«<span class="quote">Roach has sold about 60,000
8855 videocassettes and 50,000 DVDs of the duo's silent
8856 films.</span>»</span><a href="#ftn.idp41891040" class="footnote" name="idp41891040"><sup class="footnote">[189]</sup></a>
8857 </p><p>
8858 Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in
8859 this culture: selflessness. He argued in a brief before the Supreme
8860 Court that the Sonny Bono Copyright Term Extension Act will, if left
8861 standing, destroy a whole generation of American film.
8862 </p><p>
8863 His argument is straightforward. A tiny fraction of this work has
8864
8865
8866 any continuing commercial value. The rest&#8212;to the extent it
8867 survives at all&#8212;sits in vaults gathering dust. It may be that
8868 some of this work not now commercially valuable will be deemed to be
8869 valuable by the owners of the vaults. For this to occur, however, the
8870 commercial benefit from the work must exceed the costs of making the
8871 work available for distribution.
8872 </p><p>
8873 We can't know the benefits, but we do know a lot about the costs.
8874 For most of the history of film, the costs of restoring film were very
8875 high; digital technology has lowered these costs substantially. While
8876 it cost more than $10,000 to restore a ninety-minute black-and-white
8877 film in 1993, it can now cost as little as $100 to digitize one hour of
8878 8 mm film.<a href="#ftn.idp41896432" class="footnote" name="idp41896432"><sup class="footnote">[190]</sup></a>
8879
8880 </p><p>
8881 Restoration technology is not the only cost, nor the most
8882                 important.
8883 Lawyers, too, are a cost, and increasingly, a very important one. In
8884 addition to preserving the film, a distributor needs to secure the rights.
8885 And to secure the rights for a film that is under copyright, you need to
8886 locate the copyright owner.
8887 </p><p>
8888 Or more accurately, <span class="emphasis"><em>owners</em></span>. As we've seen, there
8889 isn't only a single copyright associated with a film; there are
8890 many. There isn't a single person whom you can contact about those
8891 copyrights; there are as many as can hold the rights, which turns out
8892 to be an extremely large number. Thus the costs of clearing the rights
8893 to these films is exceptionally high.
8894 </p><p>
8895 <span class="quote">«<span class="quote">But can't you just restore the film, distribute it, and then pay the
8896 copyright owner when she shows up?</span>»</span> Sure, if you want to commit a
8897 felony. And even if you're not worried about committing a felony, when
8898 she does show up, she'll have the right to sue you for all the profits you
8899 have made. So, if you're successful, you can be fairly confident you'll be
8900 getting a call from someone's lawyer. And if you're not successful, you
8901 won't make enough to cover the costs of your own lawyer. Either way,
8902 you have to talk to a lawyer. And as is too often the case, saying you have
8903 to talk to a lawyer is the same as saying you won't make any money.
8904 </p><p>
8905 For some films, the benefit of releasing the film may well exceed
8906
8907
8908 these costs. But for the vast majority of them, there is no way the
8909                 benefit
8910 would outweigh the legal costs. Thus, for the vast majority of old
8911 films, Agee argued, the film will not be restored and distributed until
8912 the copyright expires.
8913 </p><a class="indexterm" name="idp41904464"></a><p>
8914 But by the time the copyright for these films expires, the film will
8915 have expired. These films were produced on nitrate-based stock, and
8916 nitrate stock dissolves over time. They will be gone, and the metal
8917                 canisters
8918 in which they are now stored will be filled with nothing more
8919 than dust.
8920 </p><p>
8921 <span class="strong"><strong>Of all the</strong></span> creative work produced
8922 by humans anywhere, a tiny fraction has continuing commercial
8923 value. For that tiny fraction, the copyright is a crucially important
8924 legal device. For that tiny fraction, the copyright creates incentives
8925 to produce and distribute the creative work. For that tiny fraction,
8926 the copyright acts as an <span class="quote">«<span class="quote">engine of free expression.</span>»</span>
8927 </p><p>
8928 But even for that tiny fraction, the actual time during which the
8929 creative work has a commercial life is extremely short. As I've
8930                 indicated,
8931 most books go out of print within one year. The same is true of
8932 music and film. Commercial culture is sharklike. It must keep moving.
8933 And when a creative work falls out of favor with the commercial
8934                 distributors,
8935 the commercial life ends.
8936 </p><p>
8937 Yet that doesn't mean the life of the creative work ends. We don't
8938 keep libraries of books in order to compete with Barnes &amp; Noble, and
8939 we don't have archives of films because we expect people to choose
8940                 between
8941 spending Friday night watching new movies and spending
8942                 Friday
8943 night watching a 1930 news documentary. The noncommercial life
8944 of culture is important and valuable&#8212;for entertainment but also, and
8945 more importantly, for knowledge. To understand who we are, and
8946 where we came from, and how we have made the mistakes that we
8947 have, we need to have access to this history.
8948 </p><p>
8949 Copyrights in this context do not drive an engine of free expression.
8950
8951
8952 In this context, there is no need for an exclusive right. Copyrights in
8953 this context do no good.
8954 </p><p>
8955 Yet, for most of our history, they also did little harm. For most of
8956 our history, when a work ended its commercial life, there was no
8957 <span class="emphasis"><em>copyright-related use</em></span> that would be inhibited by
8958 an exclusive right.  When a book went out of print, you could not buy
8959 it from a publisher.  But you could still buy it from a used book
8960 store, and when a used book store sells it, in America, at least,
8961 there is no need to pay the copyright owner anything. Thus, the
8962 ordinary use of a book after its commercial life ended was a use that
8963 was independent of copyright law.
8964 </p><p>
8965 The same was effectively true of film. Because the costs of restoring
8966 a film&#8212;the real economic costs, not the lawyer costs&#8212;were
8967 so high, it was never at all feasible to preserve or restore
8968 film. Like the remains of a great dinner, when it's over, it's
8969 over. Once a film passed out of its commercial life, it may have been
8970 archived for a bit, but that was the end of its life so long as the
8971 market didn't have more to offer.
8972 </p><p>
8973 In other words, though copyright has been relatively short for most
8974 of our history, long copyrights wouldn't have mattered for the works
8975 that lost their commercial value. Long copyrights for these works
8976 would not have interfered with anything.
8977 </p><p>
8978 But this situation has now changed.
8979 </p><a class="indexterm" name="idxkahlebrewster2"></a><a class="indexterm" name="idxarchivesdigital2"></a><p>
8980 One crucially important consequence of the emergence of digital
8981 technologies is to enable the archive that Brewster Kahle dreams of.
8982 Digital technologies now make it possible to preserve and give access
8983 to all sorts of knowledge. Once a book goes out of print, we can now
8984 imagine digitizing it and making it available to everyone,
8985 forever. Once a film goes out of distribution, we could digitize it
8986 and make it available to everyone, forever. Digital technologies give
8987 new life to copyrighted material after it passes out of its commercial
8988 life. It is now possible to preserve and assure universal access to
8989 this knowledge and culture, whereas before it was not.
8990 </p><p>
8991
8992 And now copyright law does get in the way. Every step of producing
8993 this digital archive of our culture infringes on the exclusive right
8994 of copyright. To digitize a book is to copy it. To do that requires
8995 permission of the copyright owner. The same with music, film, or any
8996 other aspect of our culture protected by copyright. The effort to make
8997 these things available to history, or to researchers, or to those who
8998 just want to explore, is now inhibited by a set of rules that were
8999 written for a radically different context.
9000 </p><p>
9001 Here is the core of the harm that comes from extending terms: Now that
9002 technology enables us to rebuild the library of Alexandria, the law
9003 gets in the way. And it doesn't get in the way for any useful
9004 <span class="emphasis"><em>copyright</em></span> purpose, for the purpose of copyright
9005 is to enable the commercial market that spreads culture. No, we are
9006 talking about culture after it has lived its commercial life. In this
9007 context, copyright is serving no purpose <span class="emphasis"><em>at all</em></span>
9008 related to the spread of knowledge. In this context, copyright is not
9009 an engine of free expression. Copyright is a brake.
9010 </p><p>
9011 You may well ask, <span class="quote">«<span class="quote">But if digital technologies lower the costs for
9012 Brewster Kahle, then they will lower the costs for Random House, too.
9013 So won't Random House do as well as Brewster Kahle in spreading
9014 culture widely?</span>»</span>
9015 </p><a class="indexterm" name="idp41922464"></a><p>
9016 Maybe. Someday. But there is absolutely no evidence to suggest that
9017 publishers would be as complete as libraries. If Barnes &amp; Noble
9018 offered to lend books from its stores for a low price, would that
9019 eliminate the need for libraries? Only if you think that the only role
9020 of a library is to serve what <span class="quote">«<span class="quote">the market</span>»</span> would demand. But if you
9021 think the role of a library is bigger than this&#8212;if you think its
9022 role is to archive culture, whether there's a demand for any
9023 particular bit of that culture or not&#8212;then we can't count on the
9024 commercial market to do our library work for us.
9025 </p><a class="indexterm" name="idp41925760"></a><p>
9026 I would be the first to agree that it should do as much as it can: We
9027 should rely upon the market as much as possible to spread and enable
9028 culture. My message is absolutely not antimarket. But where we see the
9029 market is not doing the job, then we should allow nonmarket forces the
9030
9031
9032 freedom to fill the gaps. As one researcher calculated for American
9033 culture, 94 percent of the films, books, and music produced between
9034 1923 and 1946 is not commercially available. However much you love the
9035 commercial market, if access is a value, then 6 percent is a failure
9036 to provide that value.<a href="#ftn.idp41928176" class="footnote" name="idp41928176"><sup class="footnote">[191]</sup></a>
9037
9038 </p><p>
9039 <span class="strong"><strong>In January 1999</strong></span>, we filed a lawsuit
9040 on Eric Eldred's behalf in federal district court in Washington, D.C.,
9041 asking the court to declare the Sonny Bono Copyright Term Extension
9042 Act unconstitutional. The two central claims that we made were (1)
9043 that extending existing terms violated the Constitution's
9044 <span class="quote">«<span class="quote">limited Times</span>»</span> requirement, and (2) that extending terms
9045 by another twenty years violated the First Amendment.
9046 </p><p>
9047 The district court dismissed our claims without even hearing an
9048 argument.  A panel of the Court of Appeals for the D.C. Circuit also
9049 dismissed our claims, though after hearing an extensive argument. But
9050 that decision at least had a dissent, by one of the most conservative
9051 judges on that court. That dissent gave our claims life.
9052 </p><p>
9053 Judge David Sentelle said the CTEA violated the requirement that
9054 copyrights be for <span class="quote">«<span class="quote">limited Times</span>»</span> only. His argument was as elegant as
9055 it was simple: If Congress can extend existing terms, then there is no
9056 <span class="quote">«<span class="quote">stopping point</span>»</span> to Congress's power under the Copyright Clause. The
9057 power to extend existing terms means Congress is not required to grant
9058 terms that are <span class="quote">«<span class="quote">limited.</span>»</span> Thus, Judge Sentelle argued, the court had
9059 to interpret the term <span class="quote">«<span class="quote">limited Times</span>»</span> to give it meaning. And the best
9060 interpretation, Judge Sentelle argued, would be to deny Congress the
9061 power to extend existing terms.
9062 </p><p>
9063 We asked the Court of Appeals for the D.C. Circuit as a whole to
9064 hear the case. Cases are ordinarily heard in panels of three, except for
9065 important cases or cases that raise issues specific to the circuit as a
9066 whole, where the court will sit <span class="quote">«<span class="quote">en banc</span>»</span> to hear the case.
9067 </p><a class="indexterm" name="idp41937056"></a><p>
9068 The Court of Appeals rejected our request to hear the case en banc.
9069 This time, Judge Sentelle was joined by the most liberal member of the
9070
9071
9072 D.C. Circuit, Judge David Tatel. Both the most conservative and the
9073 most liberal judges in the D.C. Circuit believed Congress had
9074 overstepped its bounds.
9075 </p><p>
9076 It was here that most expected <em class="citetitle">Eldred</em>
9077 v. <em class="citetitle">Ashcroft</em> would die, for the Supreme Court
9078 rarely reviews any decision by a court of appeals. (It hears about one
9079 hundred cases a year, out of more than five thousand appeals.) And it
9080 practically never reviews a decision that upholds a statute when no
9081 other court has yet reviewed the statute.
9082 </p><p>
9083 But in February 2002, the Supreme Court surprised the world by
9084 granting our petition to review the D.C. Circuit opinion. Argument
9085 was set for October of 2002. The summer would be spent writing
9086 briefs and preparing for argument.
9087 </p><p>
9088 <span class="strong"><strong>It is over</strong></span> a year later as I write
9089 these words. It is still astonishingly hard. If you know anything at
9090 all about this story, you know that we lost the appeal. And if you
9091 know something more than just the minimum, you probably think there
9092 was no way this case could have been won. After our defeat, I received
9093 literally thousands of missives by well-wishers and supporters,
9094 thanking me for my work on behalf of this noble but doomed cause. And
9095 none from this pile was more significant to me than the e-mail from my
9096 client, Eric Eldred.
9097 </p><p>
9098 But my client and these friends were wrong. This case could have
9099 been won. It should have been won. And no matter how hard I try to
9100 retell this story to myself, I can never escape believing that my own
9101 mistake lost it.
9102 </p><a class="indexterm" name="idp41943344"></a><a class="indexterm" name="idxjonesdayreavisandpoguejonesday"></a><p>
9103 <span class="strong"><strong>The mistake</strong></span> was made early, though
9104 it became obvious only at the very end. Our case had been supported
9105 from the very beginning by an extraordinary lawyer, Geoffrey Stewart,
9106 and by the law firm he had moved to, Jones, Day, Reavis and
9107 Pogue. Jones Day took a great deal of heat
9108
9109 from its copyright-protectionist clients for supporting us. They
9110 ignored this pressure (something that few law firms today would ever
9111 do), and throughout the case, they gave it everything they could.
9112 </p><a class="indexterm" name="idp41947744"></a><a class="indexterm" name="idp41948528"></a><a class="indexterm" name="idp41949344"></a><p>
9113 There were three key lawyers on the case from Jones Day. Geoff
9114 Stewart was the first, but then Dan Bromberg and Don Ayer became
9115 quite involved. Bromberg and Ayer in particular had a common view
9116 about how this case would be won: We would only win, they repeatedly
9117 told me, if we could make the issue seem <span class="quote">«<span class="quote">important</span>»</span> to the Supreme
9118 Court. It had to seem as if dramatic harm were being done to free
9119 speech and free culture; otherwise, they would never vote against <span class="quote">«<span class="quote">the
9120 most powerful media companies in the world.</span>»</span>
9121 </p><a class="indexterm" name="idp41951888"></a><p>
9122 I hate this view of the law. Of course I thought the Sonny Bono Act
9123 was a dramatic harm to free speech and free culture. Of course I still
9124 think it is. But the idea that the Supreme Court decides the law based
9125 on how important they believe the issues are is just wrong. It might be
9126 <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
9127 that way.</span>»</span> As I believed that any faithful interpretation of what the
9128 framers of our Constitution did would yield the conclusion that the
9129 CTEA was unconstitutional, and as I believed that any faithful
9130                 interpretation
9131 of what the First Amendment means would yield the
9132 conclusion that the power to extend existing copyright terms is
9133                 unconstitutional,
9134 I was not persuaded that we had to sell our case like soap.
9135 Just as a law that bans the swastika is unconstitutional not because the
9136 Court likes Nazis but because such a law would violate the
9137                 Constitution,
9138 so too, in my view, would the Court decide whether Congress's
9139 law was constitutional based on the Constitution, not based on whether
9140 they liked the values that the framers put in the Constitution.
9141 </p><p>
9142 In any case, I thought, the Court must already see the danger and
9143 the harm caused by this sort of law. Why else would they grant review?
9144 There was no reason to hear the case in the Supreme Court if they
9145 weren't convinced that this regulation was harmful. So in my view, we
9146 didn't need to persuade them that this law was bad, we needed to show
9147 why it was unconstitutional.
9148 </p><p>
9149 There was one way, however, in which I felt politics would matter
9150
9151
9152 and in which I thought a response was appropriate. I was convinced
9153 that the Court would not hear our arguments if it thought these were
9154 just the arguments of a group of lefty loons. This Supreme Court was
9155 not about to launch into a new field of judicial review if it seemed
9156 that this field of review was simply the preference of a small
9157 political minority.  Although my focus in the case was not to
9158 demonstrate how bad the Sonny Bono Act was but to demonstrate that it
9159 was unconstitutional, my hope was to make this argument against a
9160 background of briefs that covered the full range of political
9161 views. To show that this claim against the CTEA was grounded in
9162 <span class="emphasis"><em>law</em></span> and not politics, then, we tried to gather
9163 the widest range of credible critics&#8212;credible not because they
9164 were rich and famous, but because they, in the aggregate, demonstrated
9165 that this law was unconstitutional regardless of one's politics.
9166 </p><a class="indexterm" name="idp41960128"></a><a class="indexterm" name="idp41960912"></a><p>
9167 The first step happened all by itself. Phyllis Schlafly's
9168 organization, Eagle Forum, had been an opponent of the CTEA from the
9169 very beginning.  Mrs. Schlafly viewed the CTEA as a sellout by
9170 Congress. In November 1998, she wrote a stinging editorial attacking
9171 the Republican Congress for allowing the law to pass. As she wrote,
9172 <span class="quote">«<span class="quote">Do you sometimes wonder why bills that create a financial windfall to
9173 narrow special interests slide easily through the intricate
9174 legislative process, while bills that benefit the general public seem
9175 to get bogged down?</span>»</span>  The answer, as the editorial documented, was the
9176 power of money.  Schlafly enumerated Disney's contributions to the key
9177 players on the committees. It was money, not justice, that gave Mickey
9178 Mouse twenty more years in Disney's control, Schlafly argued.
9179 </p><p>
9180 In the Court of Appeals, Eagle Forum was eager to file a brief
9181 supporting our position. Their brief made the argument that became the
9182 core claim in the Supreme Court: If Congress can extend the term of
9183 existing copyrights, there is no limit to Congress's power to set
9184 terms.  That strong conservative argument persuaded a strong
9185 conservative judge, Judge Sentelle.
9186 </p><a class="indexterm" name="idp41964128"></a><a class="indexterm" name="idp41964960"></a><a class="indexterm" name="idp41965776"></a><a class="indexterm" name="idp41966592"></a><p>
9187 In the Supreme Court, the briefs on our side were about as diverse as
9188 it gets. They included an extraordinary historical brief by the Free
9189
9190
9191 Software Foundation (home of the GNU project that made GNU/Linux
9192 possible). They included a powerful brief about the costs of
9193 uncertainty by Intel. There were two law professors' briefs, one by
9194 copyright scholars and one by First Amendment scholars. There was an
9195 exhaustive and uncontroverted brief by the world's experts in the
9196 history of the Progress Clause. And of course, there was a new brief
9197 by Eagle Forum, repeating and strengthening its arguments.
9198 </p><a class="indexterm" name="idp41969200"></a><a class="indexterm" name="idp41970000"></a><p>
9199 Those briefs framed a legal argument. Then to support the legal
9200 argument, there were a number of powerful briefs by libraries and
9201 archives, including the Internet Archive, the American Association of
9202 Law Libraries, and the National Writers Union.
9203 </p><a class="indexterm" name="idp41971472"></a><p>
9204 But two briefs captured the policy argument best. One made the
9205 argument I've already described: A brief by Hal Roach Studios argued
9206 that unless the law was struck, a whole generation of American film
9207 would disappear. The other made the economic argument absolutely
9208 clear.
9209 </p><a class="indexterm" name="idp41972960"></a><a class="indexterm" name="idp41973776"></a><a class="indexterm" name="idp41974592"></a><a class="indexterm" name="idp41975408"></a><a class="indexterm" name="idp41976224"></a><p>
9210 This economists' brief was signed by seventeen economists, including
9211 five Nobel Prize winners, including Ronald Coase, James Buchanan,
9212 Milton Friedman, Kenneth Arrow, and George Akerlof. The economists, as
9213 the list of Nobel winners demonstrates, spanned the political
9214 spectrum. Their conclusions were powerful: There was no plausible
9215 claim that extending the terms of existing copyrights would do
9216 anything to increase incentives to create. Such extensions were
9217 nothing more than <span class="quote">«<span class="quote">rent-seeking</span>»</span>&#8212;the fancy term economists use
9218 to describe special-interest legislation gone wild.
9219 </p><a class="indexterm" name="idp41978368"></a><a class="indexterm" name="idp41979152"></a><a class="indexterm" name="idp41979968"></a><a class="indexterm" name="idp41980784"></a><a class="indexterm" name="idp41981600"></a><p>
9220 The same effort at balance was reflected in the legal team we gathered
9221 to write our briefs in the case. The Jones Day lawyers had been with
9222 us from the start. But when the case got to the Supreme Court, we
9223 added three lawyers to help us frame this argument to this Court: Alan
9224 Morrison, a lawyer from Public Citizen, a Washington group that had
9225 made constitutional history with a series of seminal victories in the
9226 Supreme Court defending individual rights; my colleague and dean,
9227 Kathleen Sullivan, who had argued many cases in the Court, and
9228
9229
9230 who had advised us early on about a First Amendment strategy; and
9231 finally, former solicitor general Charles Fried.
9232 </p><a class="indexterm" name="idp41983840"></a><a class="indexterm" name="idp41984624"></a><a class="indexterm" name="idp41985744"></a><p>
9233 Fried was a special victory for our side. Every other former solicitor
9234 general was hired by the other side to defend Congress's power to give
9235 media companies the special favor of extended copyright terms. Fried
9236 was the only one who turned down that lucrative assignment to stand up
9237 for something he believed in. He had been Ronald Reagan's chief lawyer
9238 in the Supreme Court. He had helped craft the line of cases that
9239 limited Congress's power in the context of the Commerce Clause. And
9240 while he had argued many positions in the Supreme Court that I
9241 personally disagreed with, his joining the cause was a vote of
9242 confidence in our argument.
9243 </p><p>
9244 The government, in defending the statute, had its collection of
9245 friends, as well. Significantly, however, none of these <span class="quote">«<span class="quote">friends</span>»</span> included
9246 historians or economists. The briefs on the other side of the case were
9247 written exclusively by major media companies, congressmen, and
9248 copyright holders.
9249 </p><p>
9250 The media companies were not surprising. They had the most to gain
9251 from the law. The congressmen were not surprising either&#8212;they
9252 were defending their power and, indirectly, the gravy train of
9253 contributions such power induced. And of course it was not surprising
9254 that the copyright holders would defend the idea that they should
9255 continue to have the right to control who did what with content they
9256 wanted to control.
9257 </p><a class="indexterm" name="idp41989264"></a><a class="indexterm" name="idp41990656"></a><a class="indexterm" name="idp41991472"></a><p>
9258 Dr. Seuss's representatives, for example, argued that it was
9259 better for the Dr. Seuss estate to control what happened to
9260 Dr. Seuss's work&#8212; better than allowing it to fall into the
9261 public domain&#8212;because if this creativity were in the public
9262 domain, then people could use it to <span class="quote">«<span class="quote">glorify drugs or to create
9263 pornography.</span>»</span><a href="#ftn.idp41993216" class="footnote" name="idp41993216"><sup class="footnote">[192]</sup></a>
9264 That was also the motive of the Gershwin estate, which defended its
9265 <span class="quote">«<span class="quote">protection</span>»</span> of the work of George Gershwin. They refuse, for example,
9266 to license <em class="citetitle">Porgy and Bess</em> to anyone who refuses to use African
9267 Americans in the cast.<a href="#ftn.idp41996032" class="footnote" name="idp41996032"><sup class="footnote">[193]</sup></a>
9268 That's
9269
9270 their view of how this part of American culture should be controlled,
9271 and they wanted this law to help them effect that control.
9272 </p><p>
9273 This argument made clear a theme that is rarely noticed in this
9274 debate.  When Congress decides to extend the term of existing
9275 copyrights, Congress is making a choice about which speakers it will
9276 favor.  Famous and beloved copyright owners, such as the Gershwin
9277 estate and Dr. Seuss, come to Congress and say, <span class="quote">«<span class="quote">Give us twenty years
9278 to control the speech about these icons of American culture. We'll do
9279 better with them than anyone else.</span>»</span> Congress of course likes to reward
9280 the popular and famous by giving them what they want. But when
9281 Congress gives people an exclusive right to speak in a certain way,
9282 that's just what the First Amendment is traditionally meant to block.
9283 </p><p>
9284 We argued as much in a final brief. Not only would upholding the CTEA
9285 mean that there was no limit to the power of Congress to extend
9286 copyrights&#8212;extensions that would further concentrate the market;
9287 it would also mean that there was no limit to Congress's power to play
9288 favorites, through copyright, with who has the right to speak.
9289 </p><p>
9290 <span class="strong"><strong>Between February</strong></span> and October, there
9291 was little I did beyond preparing for this case. Early on, as I said,
9292 I set the strategy.
9293 </p><a class="indexterm" name="idp42001824"></a><a class="indexterm" name="idp42002640"></a><a class="indexterm" name="idp42003456"></a><a class="indexterm" name="idp42004272"></a><a class="indexterm" name="idp42005088"></a><a class="indexterm" name="idp42005904"></a><a class="indexterm" name="idp42006720"></a><a class="indexterm" name="idp42007552"></a><a class="indexterm" name="idp42008368"></a><a class="indexterm" name="idp42009488"></a><a class="indexterm" name="idxsupremecourtusfactionsof"></a><p>
9294 The Supreme Court was divided into two important camps. One camp we
9295 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
9296 Conservatives included Chief Justice Rehnquist, Justice O'Connor,
9297 Justice Scalia, Justice Kennedy, and Justice Thomas. These five had
9298 been the most consistent in limiting Congress's power. They were the
9299 five who had supported the <em class="citetitle">Lopez/Morrison</em> line
9300 of cases that said that an enumerated power had to be interpreted to
9301 assure that Congress's powers had limits.
9302 </p><a class="indexterm" name="idp42014640"></a><a class="indexterm" name="idxginsburg"></a><p>
9303 The Rest were the four Justices who had strongly opposed limits on
9304 Congress's power. These four&#8212;Justice Stevens, Justice Souter,
9305 Justice Ginsburg, and Justice Breyer&#8212;had repeatedly argued that
9306 the Constitution
9307
9308 gives Congress broad discretion to decide how best to implement its
9309 powers. In case after case, these justices had argued that the Court's
9310 role should be one of deference. Though the votes of these four
9311 justices were the votes that I personally had most consistently agreed
9312 with, they were also the votes that we were least likely to get.
9313 </p><p>
9314 In particular, the least likely was Justice Ginsburg's. In addition to
9315 her general view about deference to Congress (except where issues of
9316 gender are involved), she had been particularly deferential in the
9317 context of intellectual property protections. She and her daughter (an
9318 excellent and well-known intellectual property scholar) were cut from
9319 the same intellectual property cloth. We expected she would agree with
9320 the writings of her daughter: that Congress had the power in this
9321 context to do as it wished, even if what Congress wished made little
9322 sense.
9323 </p><a class="indexterm" name="idp42019296"></a><p>
9324 Close behind Justice Ginsburg were two justices whom we also viewed as
9325 unlikely allies, though possible surprises. Justice Souter strongly
9326 favored deference to Congress, as did Justice Breyer. But both were
9327 also very sensitive to free speech concerns. And as we strongly
9328 believed, there was a very important free speech argument against
9329 these retrospective extensions.
9330 </p><a class="indexterm" name="idp42020736"></a><a class="indexterm" name="idp42022128"></a><p>
9331 The only vote we could be confident about was that of Justice
9332 Stevens. History will record Justice Stevens as one of the greatest
9333 judges on this Court. His votes are consistently eclectic, which just
9334 means that no simple ideology explains where he will stand. But he
9335 had consistently argued for limits in the context of intellectual property
9336 generally. We were fairly confident he would recognize limits here.
9337 </p><p>
9338 This analysis of <span class="quote">«<span class="quote">the Rest</span>»</span> showed most clearly where our focus had to
9339 be: on the Conservatives. To win this case, we had to crack open these
9340 five and get at least a majority to go our way. Thus, the single
9341 overriding argument that animated our claim rested on the
9342 Conservatives' most important jurisprudential innovation&#8212;the
9343 argument that Judge Sentelle had relied upon in the Court of Appeals,
9344 that Congress's power must be interpreted so that its enumerated
9345 powers have limits.
9346 </p><a class="indexterm" name="idp42024912"></a><a class="indexterm" name="idp42026368"></a><a class="indexterm" name="idp42027152"></a><a class="indexterm" name="idp42027968"></a><a class="indexterm" name="idp42029088"></a><a class="indexterm" name="idxcongressuscopyrighttermsextendedby5"></a><a class="indexterm" name="idp42031760"></a><p>
9347 This then was the core of our strategy&#8212;a strategy for which I am
9348 responsible. We would get the Court to see that just as with the
9349 <em class="citetitle">Lopez</em>
9350
9351 case, under the government's argument here, Congress would always have
9352 unlimited power to extend existing terms. If anything was plain about
9353 Congress's power under the Progress Clause, it was that this power was
9354 supposed to be <span class="quote">«<span class="quote">limited.</span>»</span> Our aim would be to get the Court to
9355 reconcile <em class="citetitle">Eldred</em> with
9356 <em class="citetitle">Lopez</em>: If Congress's power to regulate commerce
9357 was limited, then so, too, must Congress's power to regulate copyright
9358 be limited.
9359 </p><p>
9360 <span class="strong"><strong>The argument</strong></span> on the government's
9361 side came down to this: Congress has done it before. It should be
9362 allowed to do it again. The government claimed that from the very
9363 beginning, Congress has been extending the term of existing
9364 copyrights. So, the government argued, the Court should not now say
9365 that practice is unconstitutional.
9366 </p><a class="indexterm" name="idp42037312"></a><p>
9367 There was some truth to the government's claim, but not much. We
9368 certainly agreed that Congress had extended existing terms in 1831
9369 and in 1909. And of course, in 1962, Congress began extending
9370                 existing
9371 terms regularly&#8212;eleven times in forty years.
9372 </p><p>
9373 But this <span class="quote">«<span class="quote">consistency</span>»</span> should be kept in perspective. Congress
9374                 extended
9375 existing terms once in the first hundred years of the Republic.
9376 It then extended existing terms once again in the next fifty. Those rare
9377 extensions are in contrast to the now regular practice of extending
9378                 existing
9379 terms. Whatever restraint Congress had had in the past, that
9380                 restraint
9381 was now gone. Congress was now in a cycle of extensions; there
9382 was no reason to expect that cycle would end. This Court had not
9383                 hesitated
9384 to intervene where Congress was in a similar cycle of extension.
9385 There was no reason it couldn't intervene here.
9386 </p><p>
9387 <span class="strong"><strong>Oral argument</strong></span> was scheduled for the
9388 first week in October. I arrived in D.C. two weeks before the
9389 argument. During those two weeks, I was repeatedly
9390 <span class="quote">«<span class="quote">mooted</span>»</span> by lawyers who had volunteered to
9391
9392
9393 help in the case. Such <span class="quote">«<span class="quote">moots</span>»</span> are basically practice rounds, where
9394 wannabe justices fire questions at wannabe winners.
9395 </p><p>
9396 I was convinced that to win, I had to keep the Court focused on a
9397 single point: that if this extension is permitted, then there is no limit to
9398 the power to set terms. Going with the government would mean that
9399 terms would be effectively unlimited; going with us would give
9400                 Congress
9401 a clear line to follow: Don't extend existing terms. The moots
9402 were an effective practice; I found ways to take every question back to
9403 this central idea.
9404 </p><a class="indexterm" name="idp42044112"></a><a class="indexterm" name="idp42044928"></a><a class="indexterm" name="idp42045744"></a><a class="indexterm" name="idp42046560"></a><p>
9405 One moot was before the lawyers at Jones Day. Don Ayer was the
9406 skeptic. He had served in the Reagan Justice Department with Solicitor
9407 General Charles Fried. He had argued many cases before the Supreme
9408 Court. And in his review of the moot, he let his concern speak:
9409 </p><p>
9410 <span class="quote">«<span class="quote">I'm just afraid that unless they really see the harm, they won't be
9411 willing to upset this practice that the government says has been a
9412 consistent practice for two hundred years. You have to make them see
9413 the harm&#8212;passionately get them to see the harm. For if they
9414 don't see that, then we haven't any chance of winning.</span>»</span>
9415 </p><a class="indexterm" name="idp42049312"></a><p>
9416 He may have argued many cases before this Court, I thought, but
9417 he didn't understand its soul. As a clerk, I had seen the Justices do the
9418 right thing&#8212;not because of politics but because it was right. As a law
9419 professor, I had spent my life teaching my students that this Court
9420 does the right thing&#8212;not because of politics but because it is right. As
9421 I listened to Ayer's plea for passion in pressing politics, I understood
9422 his point, and I rejected it. Our argument was right. That was enough.
9423 Let the politicians learn to see that it was also good.
9424 </p><p>
9425 <span class="strong"><strong>The night before</strong></span> the argument, a
9426 line of people began to form in front of the Supreme Court. The case
9427 had become a focus of the press and of the movement to free
9428 culture. Hundreds stood in line
9429
9430
9431 for the chance to see the proceedings. Scores spent the night on the
9432 Supreme Court steps so that they would be assured a seat.
9433 </p><p>
9434 Not everyone has to wait in line. People who know the Justices can
9435 ask for seats they control. (I asked Justice Scalia's chambers for seats for
9436 my parents, for example.) Members of the Supreme Court bar can get
9437 a seat in a special section reserved for them. And senators and
9438                 congressmen
9439 have a special place where they get to sit, too. And finally, of
9440 course, the press has a gallery, as do clerks working for the Justices on
9441 the Court. As we entered that morning, there was no place that was
9442 not taken. This was an argument about intellectual property law, yet
9443 the halls were filled. As I walked in to take my seat at the front of the
9444 Court, I saw my parents sitting on the left. As I sat down at the table,
9445 I saw Jack Valenti sitting in the special section ordinarily reserved for
9446 family of the Justices.
9447 </p><p>
9448 When the Chief Justice called me to begin my argument, I began
9449 where I intended to stay: on the question of the limits on Congress's
9450 power. This was a case about enumerated powers, I said, and whether
9451 those enumerated powers had any limit.
9452 </p><a class="indexterm" name="idp42054544"></a><p>
9453 Justice O'Connor stopped me within one minute of my opening.
9454 The history was bothering her.
9455 </p><div class="blockquote"><blockquote class="blockquote"><p>
9456 justice o'connor: Congress has extended the term so often
9457 through the years, and if you are right, don't we run the risk of
9458 upsetting previous extensions of time? I mean, this seems to be a
9459 practice that began with the very first act.
9460 </p></blockquote></div><p>
9461 She was quite willing to concede <span class="quote">«<span class="quote">that this flies directly in the face
9462 of what the framers had in mind.</span>»</span> But my response again and again
9463 was to emphasize limits on Congress's power.
9464 </p><div class="blockquote"><blockquote class="blockquote"><p>
9465 mr. lessig: Well, if it flies in the face of what the framers had in
9466 mind, then the question is, is there a way of interpreting their
9467
9468 words that gives effect to what they had in mind, and the answer
9469 is yes.
9470 </p></blockquote></div><p>
9471 There were two points in this argument when I should have seen
9472 where the Court was going. The first was a question by Justice
9473 Kennedy, who observed,
9474 </p><div class="blockquote"><blockquote class="blockquote"><p>
9475 justice kennedy: Well, I suppose implicit in the argument that
9476 the '76 act, too, should have been declared void, and that we
9477 might leave it alone because of the disruption, is that for all these
9478 years the act has impeded progress in science and the useful arts.
9479 I just don't see any empirical evidence for that.
9480 </p></blockquote></div><p>
9481 Here follows my clear mistake. Like a professor correcting a
9482                 student,
9483 I answered,
9484 </p><div class="blockquote"><blockquote class="blockquote"><p>
9485 mr. lessig: Justice, we are not making an empirical claim at all.
9486 Nothing in our Copyright Clause claim hangs upon the empirical
9487 assertion about impeding progress. Our only argument is this is a
9488 structural limit necessary to assure that what would be an effectively
9489 perpetual term not be permitted under the copyright laws.
9490 </p></blockquote></div><a class="indexterm" name="idp42062400"></a><p>
9491 That was a correct answer, but it wasn't the right answer. The right
9492 answer was instead that there was an obvious and profound harm. Any
9493 number of briefs had been written about it. He wanted to hear it. And
9494 here was the place Don Ayer's advice should have mattered. This was a
9495 softball; my answer was a swing and a miss.
9496 </p><a class="indexterm" name="idp42063904"></a><p>
9497 The second came from the Chief, for whom the whole case had been
9498 crafted. For the Chief Justice had crafted the <em class="citetitle">Lopez</em> ruling,
9499 and we hoped that he would see this case as its second cousin.
9500 </p><p>
9501 It was clear a second into his question that he wasn't at all
9502 sympathetic.  To him, we were a bunch of anarchists. As he asked:
9503
9504
9505 </p><div class="blockquote"><blockquote class="blockquote"><p>
9506 chief justice: Well, but you want more than that. You want the
9507 right to copy verbatim other people's books, don't you?
9508 </p><p>
9509 mr. lessig: We want the right to copy verbatim works that
9510 should be in the public domain and would be in the public
9511                 domain
9512 but for a statute that cannot be justified under ordinary First
9513 Amendment analysis or under a proper reading of the limits built
9514 into the Copyright Clause.
9515 </p></blockquote></div><a class="indexterm" name="idp42068192"></a><p>
9516 Things went better for us when the government gave its argument;
9517 for now the Court picked up on the core of our claim. As Justice Scalia
9518 asked Solicitor General Olson,
9519 </p><div class="blockquote"><blockquote class="blockquote"><p>
9520 justice scalia: You say that the functional equivalent of an unlimited
9521 time would be a violation [of the Constitution], but that's precisely
9522 the argument that's being made by petitioners here, that a limited
9523 time which is extendable is the functional equivalent of an unlimited
9524 time.
9525 </p></blockquote></div><p>
9526 When Olson was finished, it was my turn to give a closing rebuttal.
9527 Olson's flailing had revived my anger. But my anger still was directed
9528 to the academic, not the practical. The government was arguing as if
9529 this were the first case ever to consider limits on Congress's
9530 Copyright and Patent Clause power. Ever the professor and not the
9531 advocate, I closed by pointing out the long history of the Court
9532 imposing limits on Congress's power in the name of the Copyright and
9533 Patent Clause&#8212; indeed, the very first case striking a law of
9534 Congress as exceeding a specific enumerated power was based upon the
9535 Copyright and Patent Clause. All true. But it wasn't going to move the
9536 Court to my side.
9537 </p><p>
9538 <span class="strong"><strong>As I left</strong></span> the court that day, I
9539 knew there were a hundred points I wished I could remake. There were a
9540 hundred questions I wished I had
9541
9542
9543 answered differently. But one way of thinking about this case left me
9544 optimistic.
9545 </p><p>
9546 The government had been asked over and over again, what is the limit?
9547 Over and over again, it had answered there is no limit. This was
9548 precisely the answer I wanted the Court to hear. For I could not
9549 imagine how the Court could understand that the government believed
9550 Congress's power was unlimited under the terms of the Copyright
9551 Clause, and sustain the government's argument. The solicitor general
9552 had made my argument for me. No matter how often I tried, I could not
9553 understand how the Court could find that Congress's power under the
9554 Commerce Clause was limited, but under the Copyright Clause,
9555 unlimited. In those rare moments when I let myself believe that we may
9556 have prevailed, it was because I felt this Court&#8212;in particular,
9557 the Conservatives&#8212;would feel itself constrained by the rule of
9558 law that it had established elsewhere.
9559 </p><p>
9560 <span class="strong"><strong>The morning</strong></span> of January 15, 2003, I
9561 was five minutes late to the office and missed the 7:00 A.M. call from
9562 the Supreme Court clerk. Listening to the message, I could tell in an
9563 instant that she had bad news to report.The Supreme Court had affirmed
9564 the decision of the Court of Appeals. Seven justices had voted in the
9565 majority. There were two dissents.
9566 </p><p>
9567 A few seconds later, the opinions arrived by e-mail. I took the
9568 phone off the hook, posted an announcement to our blog, and sat
9569 down to see where I had been wrong in my reasoning.
9570 </p><p>
9571 My <span class="emphasis"><em>reasoning</em></span>. Here was a case that pitted all the
9572 money in the world against <span class="emphasis"><em>reasoning</em></span>. And here
9573 was the last naïve law professor, scouring the pages, looking for
9574 reasoning.
9575 </p><a class="indexterm" name="idxunitedstatesvlopez2"></a><p>
9576 I first scoured the opinion, looking for how the Court would
9577 distinguish the principle in this case from the principle in
9578 <em class="citetitle">Lopez</em>. The argument was nowhere to be found. The case was not even
9579 cited. The argument that was the core argument of our case did not
9580 even appear in the Court's opinion.
9581 </p><a class="indexterm" name="idp42080736"></a><p>
9582
9583
9584 Justice Ginsburg simply ignored the enumerated powers argument.
9585 Consistent with her view that Congress's power was not limited
9586 generally, she had found Congress's power not limited here.
9587 </p><p>
9588 Her opinion was perfectly reasonable&#8212;for her, and for Justice
9589 Souter. Neither believes in <em class="citetitle">Lopez</em>. It would be too much to expect them
9590 to write an opinion that recognized, much less explained, the doctrine
9591 they had worked so hard to defeat.
9592 </p><p>
9593 But as I realized what had happened, I couldn't quite believe what I
9594 was reading. I had said there was no way this Court could reconcile
9595 limited powers with the Commerce Clause and unlimited powers with the
9596 Progress Clause. It had never even occurred to me that they could
9597 reconcile the two simply <span class="emphasis"><em>by not addressing the
9598 argument</em></span>. There was no inconsistency because they would not
9599 talk about the two together.  There was therefore no principle that
9600 followed from the <em class="citetitle">Lopez</em> case: In that context, Congress's power would
9601 be limited, but in this context it would not.
9602 </p><a class="indexterm" name="idp42085360"></a><p>
9603 Yet by what right did they get to choose which of the framers' values
9604 they would respect? By what right did they&#8212;the silent
9605 five&#8212;get to select the part of the Constitution they would
9606 enforce based on the values they thought important? We were right back
9607 to the argument that I said I hated at the start: I had failed to
9608 convince them that the issue here was important, and I had failed to
9609 recognize that however much I might hate a system in which the Court
9610 gets to pick the constitutional values that it will respect, that is
9611 the system we have.
9612 </p><a class="indexterm" name="idp42082800"></a><p>
9613 Justices Breyer and Stevens wrote very strong dissents. Stevens's
9614 opinion was crafted internal to the law: He argued that the tradition
9615 of intellectual property law should not support this unjustified
9616 extension of terms. He based his argument on a parallel analysis that
9617 had governed in the context of patents (so had we). But the rest of
9618 the Court discounted the parallel&#8212;without explaining how the
9619 very same words in the Progress Clause could come to mean totally
9620 different things depending upon whether the words were about patents
9621 or copyrights.  The Court let Justice Stevens's charge go unanswered.
9622 </p><a class="indexterm" name="idp42088704"></a><p>
9623
9624 Justice Breyer's opinion, perhaps the best opinion he has ever
9625 written, was external to the Constitution. He argued that the term of
9626 copyrights has become so long as to be effectively unlimited. We had
9627 said that under the current term, a copyright gave an author 99.8
9628 percent of the value of a perpetual term. Breyer said we were wrong,
9629 that the actual number was 99.9997 percent of a perpetual term. Either
9630 way, the point was clear: If the Constitution said a term had to be
9631 <span class="quote">«<span class="quote">limited,</span>»</span> and the existing term was so long as to be effectively
9632 unlimited, then it was unconstitutional.
9633 </p><a class="indexterm" name="idxunitedstatesvlopez3"></a><p>
9634 These two justices understood all the arguments we had made. But
9635 because neither believed in the <em class="citetitle">Lopez</em> case, neither was willing to push
9636 it as a reason to reject this extension. The case was decided without
9637 anyone having addressed the argument that we had carried from Judge
9638 Sentelle. It was <em class="citetitle">Hamlet</em> without the Prince.
9639 </p><p>
9640 <span class="strong"><strong>Defeat brings depression</strong></span>. They say
9641 it is a sign of health when depression gives way to anger. My anger
9642 came quickly, but it didn't cure the depression. This anger was of two
9643 sorts.
9644 </p><a class="indexterm" name="idp42096416"></a><p>
9645 It was first anger with the five <span class="quote">«<span class="quote">Conservatives.</span>»</span> It would have been
9646 one thing for them to have explained why the principle of <em class="citetitle">Lopez</em> didn't
9647 apply in this case. That wouldn't have been a very convincing
9648 argument, I don't believe, having read it made by others, and having
9649 tried to make it myself. But it at least would have been an act of
9650 integrity.  These justices in particular have repeatedly said that the
9651 proper mode of interpreting the Constitution is <span class="quote">«<span class="quote">originalism</span>»</span>&#8212;to
9652 first understand the framers' text, interpreted in their context, in
9653 light of the structure of the Constitution. That method had produced
9654 <em class="citetitle">Lopez</em> and many other <span class="quote">«<span class="quote">originalist</span>»</span> rulings. Where was their
9655 <span class="quote">«<span class="quote">originalism</span>»</span> now?
9656 </p><a class="indexterm" name="idp42100864"></a><p>
9657 Here, they had joined an opinion that never once tried to explain
9658 what the framers had meant by crafting the Progress Clause as they
9659 did; they joined an opinion that never once tried to explain how the
9660 structure of that clause would affect the interpretation of Congress's
9661
9662
9663 power. And they joined an opinion that didn't even try to explain why
9664 this grant of power could be unlimited, whereas the Commerce Clause
9665 would be limited. In short, they had joined an opinion that did not
9666 apply to, and was inconsistent with, their own method for interpreting
9667 the Constitution. This opinion may well have yielded a result that
9668 they liked. It did not produce a reason that was consistent with their
9669 own principles.
9670 </p><p>
9671 My anger with the Conservatives quickly yielded to anger with
9672                 myself.
9673 For I had let a view of the law that I liked interfere with a view of
9674 the law as it is.
9675 </p><a class="indexterm" name="idp42104176"></a><p>
9676 Most lawyers, and most law professors, have little patience for
9677 idealism about courts in general and this Supreme Court in particular.
9678 Most have a much more pragmatic view. When Don Ayer said that this
9679 case would be won based on whether I could convince the Justices that
9680 the framers' values were important, I fought the idea, because I
9681 didn't want to believe that that is how this Court decides. I insisted
9682 on arguing this case as if it were a simple application of a set of
9683 principles.  I had an argument that followed in logic. I didn't need
9684 to waste my time showing it should also follow in popularity.
9685 </p><p>
9686 As I read back over the transcript from that argument in October, I
9687 can see a hundred places where the answers could have taken the
9688 conversation in different directions, where the truth about the harm
9689 that this unchecked power will cause could have been made clear to
9690 this Court. Justice Kennedy in good faith wanted to be shown. I,
9691 idiotically, corrected his question. Justice Souter in good faith
9692 wanted to be shown the First Amendment harms. I, like a math teacher,
9693 reframed the question to make the logical point. I had shown them how
9694 they could strike this law of Congress if they wanted to. There were a
9695 hundred places where I could have helped them want to, yet my
9696 stubbornness, my refusal to give in, stopped me. I have stood before
9697 hundreds of audiences trying to persuade; I have used passion in that
9698 effort to persuade; but I
9699
9700 refused to stand before this audience and try to persuade with the
9701 passion I had used elsewhere. It was not the basis on which a court
9702 should decide the issue.
9703 </p><a class="indexterm" name="idp42108544"></a><a class="indexterm" name="idp42109328"></a><p>
9704 Would it have been different if I had argued it differently? Would it
9705 have been different if Don Ayer had argued it? Or Charles Fried? Or
9706 Kathleen Sullivan?
9707 </p><p>
9708 My friends huddled around me to insist it would not. The Court
9709 was not ready, my friends insisted. This was a loss that was destined. It
9710 would take a great deal more to show our society why our framers were
9711 right. And when we do that, we will be able to show that Court.
9712 </p><p>
9713 Maybe, but I doubt it. These Justices have no financial interest in
9714 doing anything except the right thing. They are not lobbied. They have
9715 little reason to resist doing right. I can't help but think that if I had
9716 stepped down from this pretty picture of dispassionate justice, I could
9717 have persuaded.
9718 </p><a class="indexterm" name="idp42112080"></a><p>
9719 And even if I couldn't, then that doesn't excuse what happened in
9720 January. For at the start of this case, one of America's leading
9721 intellectual property professors stated publicly that my bringing this
9722 case was a mistake. <span class="quote">«<span class="quote">The Court is not ready,</span>»</span> Peter Jaszi said; this
9723 issue should not be raised until it is.
9724 </p><p>
9725 After the argument and after the decision, Peter said to me, and
9726 publicly, that he was wrong. But if indeed that Court could not have
9727 been persuaded, then that is all the evidence that's needed to know that
9728 here again Peter was right. Either I was not ready to argue this case in
9729 a way that would do some good or they were not ready to hear this case
9730 in a way that would do some good. Either way, the decision to bring
9731 this case&#8212;a decision I had made four years before&#8212;was wrong.
9732 </p><p>
9733 <span class="strong"><strong>While the reaction</strong></span> to the Sonny
9734 Bono Act itself was almost unanimously negative, the reaction to the
9735 Court's decision was mixed.  No one, at least in the press, tried to
9736 say that extending the term of copyright was a good idea. We had won
9737 that battle over ideas. Where
9738
9739
9740 the decision was praised, it was praised by papers that had been
9741 skeptical of the Court's activism in other cases. Deference was a good
9742 thing, even if it left standing a silly law. But where the decision
9743 was attacked, it was attacked because it left standing a silly and
9744 harmful law. <em class="citetitle">The New York Times</em> wrote in its editorial,
9745 </p><div class="blockquote"><blockquote class="blockquote"><p>
9746 In effect, the Supreme Court's decision makes it likely that we are
9747 seeing the beginning of the end of public domain and the birth of
9748 copyright perpetuity. The public domain has been a grand experiment,
9749 one that should not be allowed to die. The ability to draw freely on
9750 the entire creative output of humanity is one of the reasons we live
9751 in a time of such fruitful creative ferment.
9752 </p></blockquote></div><p>
9753 The best responses were in the cartoons. There was a gaggle of
9754 hilarious images&#8212;of Mickey in jail and the like. The best, from
9755 my view of the case, was Ruben Bolling's, reproduced in figure
9756 <a class="xref" href="#fig-18" title="Figure 13.1. ">13.1</a>. The <span class="quote">«<span class="quote">powerful
9757 and wealthy</span>»</span> line is a bit unfair. But the punch in the face
9758 felt exactly like that.
9759 <a class="indexterm" name="idp42120560"></a>
9760 </p><div class="figure-float" style="float: left;"><div class="figure"><a name="fig-18"></a><p class="title"><b>Figure 13.1. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="100%"><tr><td align="center"><img src="images/tom-the-dancing-bug.png" align="middle" width="100%"></td></tr></table></div><a class="indexterm" name="idp42123776"></a></div></div><br class="figure-break"></div><p>
9761 The image that will always stick in my head is that evoked by the
9762 quote from <em class="citetitle">The New York Times</em>. That <span class="quote">«<span class="quote">grand experiment</span>»</span> we call the
9763 <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,
9764 I shrunk the Constitution.</span>»</span> But I can rarely make light of it. We had
9765 in our Constitution a commitment to free culture. In the case that I
9766 fathered, the Supreme Court effectively renounced that commitment. A
9767 better lawyer would have made them see differently.
9768 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp41727984" class="footnote"><p><a href="#idp41727984" class="para"><sup class="para">[179] </sup></a>
9769
9770 <a class="indexterm" name="idp41728720"></a>
9771 There's a parallel here with pornography that is a bit hard to
9772 describe, but it's a strong one. One phenomenon that the Internet
9773 created was a world of noncommercial pornographers&#8212;people who
9774 were distributing porn but were not making money directly or
9775 indirectly from that distribution.  Such a class didn't exist before
9776 the Internet came into being because the costs of distributing porn
9777 were so high. Yet this new class of distributors got special attention
9778 in the Supreme Court, when the Court struck down the Communications
9779 Decency Act of 1996. It was partly because of the burden on
9780 noncommercial speakers that the statute was found to exceed Congress's
9781 power. The same point could have been made about noncommercial
9782 publishers after the advent of the Internet. The Eric Eldreds of the
9783 world before the Internet were extremely few. Yet one would think it
9784 at least as important to protect the Eldreds of the world as to
9785 protect noncommercial pornographers.</p></div><div id="ftn.idp41752352" class="footnote"><p><a href="#idp41752352" class="para"><sup class="para">[180] </sup></a>
9786
9787 <a class="indexterm" name="idp41753056"></a>
9788 <a class="indexterm" name="idp41753840"></a>
9789 <a class="indexterm" name="idp41754656"></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.idp41808528" class="footnote"><p><a href="#idp41808528" 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.idp41810528" class="footnote"><p><a href="#idp41810528" 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.idp41812640" class="footnote"><p><a href="#idp41812640" 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.idp41835216" class="footnote"><p><a href="#idp41835216" 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.idp41838464" class="footnote"><p><a href="#idp41838464" 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 <a class="indexterm" name="idp41840064"></a>
9816 </p></div><div id="ftn.idp41844096" class="footnote"><p><a href="#idp41844096" class="para"><sup class="para">[186] </sup></a>
9817
9818 If it is a principle about enumerated powers, then the principle
9819 carries from one enumerated power to another. The animating point in
9820 the context of the Commerce Clause was that the interpretation offered
9821 by the government would allow the government unending power to
9822 regulate commerce&#8212;the limitation to interstate commerce
9823 notwithstanding. The same point is true in the context of the
9824 Copyright Clause. Here, too, the government's interpretation would
9825 allow the government unending power to regulate copyrights&#8212;the
9826 limitation to <span class="quote">«<span class="quote">limited times</span>»</span> notwithstanding.
9827 </p></div><div id="ftn.idp41863872" class="footnote"><p><a href="#idp41863872" class="para"><sup class="para">[187] </sup></a>
9828
9829 Brief of the Nashville Songwriters Association, <em class="citetitle">Eldred</em>
9830 v. <em class="citetitle">Ashcroft</em>, 537 U.S.  186 (2003) (No. 01-618), n.10, available
9831 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #51</a>.
9832 </p></div><div id="ftn.idp41871808" class="footnote"><p><a href="#idp41871808" class="para"><sup class="para">[188] </sup></a>
9833  The figure of 2 percent is an extrapolation from the study by the
9834                 Congressional
9835 Research Service, in light of the estimated renewal ranges. See Brief
9836 of Petitioners, <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 7, available at
9837 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #52</a>.
9838 </p></div><div id="ftn.idp41891040" class="footnote"><p><a href="#idp41891040" class="para"><sup class="para">[189] </sup></a>
9839
9840 See David G. Savage, <span class="quote">«<span class="quote">High Court Scene of Showdown on Copyright Law,</span>»</span>
9841 <em class="citetitle">Los Angeles Times</em>, 6 October 2002; David Streitfeld, <span class="quote">«<span class="quote">Classic Movies,
9842 Songs, Books at Stake; Supreme Court Hears Arguments Today on Striking
9843 Down Copyright Extension,</span>»</span> <em class="citetitle">Orlando Sentinel Tribune</em>, 9 October 2002.
9844 </p></div><div id="ftn.idp41896432" class="footnote"><p><a href="#idp41896432" class="para"><sup class="para">[190] </sup></a>
9845
9846 Brief of Hal Roach Studios and Michael Agee as Amicus Curiae
9847 Supporting the Petitoners, <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 537
9848 U.S. 186 (2003) (No. 01- 618), 12. See also Brief of Amicus Curiae
9849 filed on behalf of Petitioners by the Internet Archive, <em class="citetitle">Eldred</em>
9850 v. <em class="citetitle">Ashcroft</em>, available at
9851 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #53</a>.
9852 </p></div><div id="ftn.idp41928176" class="footnote"><p><a href="#idp41928176" class="para"><sup class="para">[191] </sup></a>
9853
9854 Jason Schultz, <span class="quote">«<span class="quote">The Myth of the 1976 Copyright
9855 <span class="quote">&#8216;<span class="quote">Chaos</span>&#8217;</span> Theory,</span>»</span> 20 December 2002, available at
9856 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #54</a>.
9857 </p></div><div id="ftn.idp41993216" class="footnote"><p><a href="#idp41993216" class="para"><sup class="para">[192] </sup></a>
9858
9859 Brief of Amici Dr. Seuss Enterprise et al., <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 537
9860 U.S.  (2003) (No. 01-618), 19.
9861 </p></div><div id="ftn.idp41996032" class="footnote"><p><a href="#idp41996032" class="para"><sup class="para">[193] </sup></a>
9862
9863 Dinitia Smith, <span class="quote">«<span class="quote">Immortal Words, Immortal Royalties? Even Mickey
9864 Mouse Joins the Fray,</span>»</span> <em class="citetitle">New York Times</em>, 28 March 1998, B7.
9865 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="eldred-ii"></a>Chapter 14. Chapter Fourteen: Eldred II</h2></div></div></div><p>
9866 <span class="strong"><strong>The day</strong></span>
9867 <em class="citetitle">Eldred</em> was decided, fate would have it that I
9868 was to travel to Washington, D.C. (The day the rehearing petition in
9869 <em class="citetitle">Eldred</em> was denied&#8212;meaning the case was
9870 really finally over&#8212;fate would have it that I was giving a
9871 speech to technologists at Disney World.)  This was a particularly
9872 long flight to my least favorite city. The drive into the city from
9873 Dulles was delayed because of traffic, so I opened up my computer and
9874 wrote an op-ed piece.
9875 </p><a class="indexterm" name="idp42131600"></a><p>
9876 It was an act of contrition. During the whole of the flight from San
9877 Francisco to Washington, I had heard over and over again in my head
9878 the same advice from Don Ayer: You need to make them see why it is
9879 important. And alternating with that command was the question of
9880 Justice Kennedy: <span class="quote">«<span class="quote">For all these years the act has impeded progress in
9881 science and the useful arts. I just don't see any empirical evidence for
9882 that.</span>»</span> And so, having failed in the argument of constitutional principle,
9883 finally, I turned to an argument of politics.
9884 </p><p>
9885 <em class="citetitle">The New York Times</em> published the piece. In it, I proposed a simple
9886 fix: Fifty years after a work has been published, the copyright owner
9887
9888 would be required to register the work and pay a small fee. If he paid
9889 the fee, he got the benefit of the full term of copyright. If he did not,
9890 the work passed into the public domain.
9891 </p><p>
9892 We called this the Eldred Act, but that was just to give it a name.
9893 Eric Eldred was kind enough to let his name be used once again, but as
9894 he said early on, it won't get passed unless it has another name.
9895 </p><p>
9896 Or another two names. For depending upon your perspective, this
9897 is either the <span class="quote">«<span class="quote">Public Domain Enhancement Act</span>»</span> or the <span class="quote">«<span class="quote">Copyright
9898 Term Deregulation Act.</span>»</span> Either way, the essence of the idea is clear
9899 and obvious: Remove copyright where it is doing nothing except
9900 blocking access and the spread of knowledge. Leave it for as long as
9901 Congress allows for those works where its worth is at least $1. But for
9902 everything else, let the content go.
9903 </p><a class="indexterm" name="idp42137408"></a><a class="indexterm" name="idp42138224"></a><a class="indexterm" name="idp42139040"></a><p>
9904 The reaction to this idea was amazingly strong. Steve Forbes endorsed
9905 it in an editorial. I received an avalanche of e-mail and letters
9906 expressing support. When you focus the issue on lost creativity,
9907 people can see the copyright system makes no sense. As a good
9908 Republican might say, here government regulation is simply getting in
9909 the way of innovation and creativity. And as a good Democrat might
9910 say, here the government is blocking access and the spread of
9911 knowledge for no good reason. Indeed, there is no real difference
9912 between Democrats and Republicans on this issue. Anyone can recognize
9913 the stupid harm of the present system.
9914 </p><p>
9915 Indeed, many recognized the obvious benefit of the registration
9916 requirement.  For one of the hardest things about the current system
9917 for people who want to license content is that there is no obvious
9918 place to look for the current copyright owners. Since registration is
9919 not required, since marking content is not required, since no
9920 formality at all is required, it is often impossibly hard to locate
9921 copyright owners to ask permission to use or license their work. This
9922 system would lower these costs, by establishing at least one registry
9923 where copyright owners could be identified.
9924 </p><a class="indexterm" name="idp42142464"></a><a class="indexterm" name="idp42143280"></a><p>
9925
9926 As I described in chapter <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>, formalities in copyright law were
9927 removed in 1976, when Congress followed the Europeans by abandoning
9928 any formal requirement before a copyright is granted.<a href="#ftn.idp42145840" class="footnote" name="idp42145840"><sup class="footnote">[194]</sup></a>
9929 The Europeans are said to view copyright as a <span class="quote">«<span class="quote">natural right.</span>»</span> Natural
9930 rights don't need forms to exist. Traditions, like the Anglo-American
9931 tradition that required copyright owners to follow form if their
9932 rights were to be protected, did not, the Europeans thought, properly
9933 respect the dignity of the author. My right as a creator turns on my
9934 creativity, not upon the special favor of the government.
9935 </p><p>
9936 That's great rhetoric. It sounds wonderfully romantic. But it is
9937 absurd copyright policy. It is absurd especially for authors, because
9938 a world without formalities harms the creator. The ability to spread
9939 <span class="quote">«<span class="quote">Walt Disney creativity</span>»</span> is destroyed when there is no simple way to
9940 know what's protected and what's not.
9941 </p><a class="indexterm" name="idp42151968"></a><p>
9942 The fight against formalities achieved its first real victory in
9943 Berlin in 1908. International copyright lawyers amended the Berne
9944 Convention in 1908, to require copyright terms of life plus fifty
9945 years, as well as the abolition of copyright formalities. The
9946 formalities were hated because the stories of inadvertent loss were
9947 increasingly common. It was as if a Charles Dickens character ran all
9948 copyright offices, and the failure to dot an <em class="citetitle">i</em> or cross a
9949 <em class="citetitle">t</em> resulted in the loss of widows' only income.
9950 </p><p>
9951 These complaints were real and sensible. And the strictness of the
9952 formalities, especially in the United States, was absurd. The law
9953 should always have ways of forgiving innocent mistakes. There is no
9954 reason copyright law couldn't, as well. Rather than abandoning
9955 formalities totally, the response in Berlin should have been to
9956 embrace a more equitable system of registration.
9957 </p><p>
9958 Even that would have been resisted, however, because registration
9959 in the nineteenth and twentieth centuries was still expensive. It was
9960 also a hassle. The abolishment of formalities promised not only to save
9961 the starving widows, but also to lighten an unnecessary regulatory
9962                 burden
9963 imposed upon creators.
9964 </p><p>
9965 In addition to the practical complaint of authors in 1908, there was
9966 a moral claim as well. There was no reason that creative property
9967
9968
9969 should be a second-class form of property. If a carpenter builds a
9970 table, his rights over the table don't depend upon filing a form with
9971 the government.  He has a property right over the table <span class="quote">«<span class="quote">naturally,</span>»</span>
9972 and he can assert that right against anyone who would steal the table,
9973 whether or not he has informed the government of his ownership of the
9974 table.
9975 </p><p>
9976 This argument is correct, but its implications are misleading. For the
9977 argument in favor of formalities does not depend upon creative
9978 property being second-class property. The argument in favor of
9979 formalities turns upon the special problems that creative property
9980 presents.  The law of formalities responds to the special physics of
9981 creative property, to assure that it can be efficiently and fairly
9982 spread.
9983 </p><p>
9984 No one thinks, for example, that land is second-class property just
9985 because you have to register a deed with a court if your sale of land
9986 is to be effective. And few would think a car is second-class property
9987 just because you must register the car with the state and tag it with
9988 a license.  In both of those cases, everyone sees that there is an
9989 important reason to secure registration&#8212;both because it makes
9990 the markets more efficient and because it better secures the rights of
9991 the owner. Without a registration system for land, landowners would
9992 perpetually have to guard their property. With registration, they can
9993 simply point the police to a deed. Without a registration system for
9994 cars, auto theft would be much easier. With a registration system, the
9995 thief has a high burden to sell a stolen car. A slight burden is
9996 placed on the property owner, but those burdens produce a much better
9997 system of protection for property generally.
9998 </p><p>
9999 It is similarly special physics that makes formalities important in
10000 copyright law. Unlike a carpenter's table, there's nothing in nature that
10001 makes it relatively obvious who might own a particular bit of creative
10002 property. A recording of Lyle Lovett's latest album can exist in a billion
10003 places without anything necessarily linking it back to a particular
10004 owner. And like a car, there's no way to buy and sell creative property
10005 with confidence unless there is some simple way to authenticate who is
10006 the author and what rights he has. Simple transactions are destroyed in
10007
10008
10009 a world without formalities. Complex, expensive,
10010 <span class="emphasis"><em>lawyer</em></span> transactions take their place.
10011 <a class="indexterm" name="idp42161536"></a>
10012 </p><p>
10013 This was the understanding of the problem with the Sonny Bono
10014 Act that we tried to demonstrate to the Court. This was the part it
10015 didn't <span class="quote">«<span class="quote">get.</span>»</span> Because we live in a system without formalities, there is no
10016 way easily to build upon or use culture from our past. If copyright
10017 terms were, as Justice Story said they would be, <span class="quote">«<span class="quote">short,</span>»</span> then this
10018 wouldn't matter much. For fourteen years, under the framers' system, a
10019 work would be presumptively controlled. After fourteen years, it would
10020 be presumptively uncontrolled.
10021 </p><p>
10022 But now that copyrights can be just about a century long, the
10023 inability to know what is protected and what is not protected becomes
10024 a huge and obvious burden on the creative process. If the only way a
10025 library can offer an Internet exhibit about the New Deal is to hire a
10026 lawyer to clear the rights to every image and sound, then the
10027 copyright system is burdening creativity in a way that has never been
10028 seen before <span class="emphasis"><em>because there are no formalities</em></span>.
10029 </p><p>
10030 The Eldred Act was designed to respond to exactly this problem. If
10031 it is worth $1 to you, then register your work and you can get the
10032 longer term. Others will know how to contact you and, therefore, how
10033 to get your permission if they want to use your work. And you will get
10034 the benefit of an extended copyright term.
10035 </p><p>
10036 If it isn't worth it to you to register to get the benefit of an extended
10037 term, then it shouldn't be worth it for the government to defend your
10038 monopoly over that work either. The work should pass into the public
10039 domain where anyone can copy it, or build archives with it, or create a
10040 movie based on it. It should become free if it is not worth $1 to you.
10041 </p><p>
10042 Some worry about the burden on authors. Won't the burden of
10043 registering the work mean that the $1 is really misleading? Isn't the
10044 hassle worth more than $1? Isn't that the real problem with
10045 registration?
10046 </p><p>
10047 It is. The hassle is terrible. The system that exists now is awful. I
10048 completely agree that the Copyright Office has done a terrible job (no
10049 doubt because they are terribly funded) in enabling simple and cheap
10050
10051
10052 registrations. Any real solution to the problem of formalities must
10053 address the real problem of <span class="emphasis"><em>governments</em></span> standing
10054 at the core of any system of formalities. In this book, I offer such a
10055 solution. That solution essentially remakes the Copyright Office. For
10056 now, assume it was Amazon that ran the registration system. Assume it
10057 was one-click registration.  The Eldred Act would propose a simple,
10058 one-click registration fifty years after a work was published. Based
10059 upon historical data, that system would move up to 98 percent of
10060 commercial work, commercial work that no longer had a commercial life,
10061 into the public domain within fifty years. What do you think?
10062 </p><a class="indexterm" name="idp42169584"></a><p>
10063 <span class="strong"><strong>When Steve Forbes</strong></span> endorsed the
10064 idea, some in Washington began to pay attention. Many people contacted
10065 me pointing to representatives who might be willing to introduce the
10066 Eldred Act. And I had a few who directly suggested that they might be
10067 willing to take the first step.
10068 </p><a class="indexterm" name="idp42171744"></a><p>
10069 One representative, Zoe Lofgren of California, went so far as to get
10070 the bill drafted. The draft solved any problem with international
10071 law. It imposed the simplest requirement upon copyright owners
10072 possible. In May 2003, it looked as if the bill would be
10073 introduced. On May 16, I posted on the Eldred Act blog, <span class="quote">«<span class="quote">we are
10074 close.</span>»</span> There was a general reaction in the blog community that
10075 something good might happen here.
10076 </p><a class="indexterm" name="idp42173808"></a><p>
10077 But at this stage, the lobbyists began to intervene. Jack Valenti and
10078 the MPAA general counsel came to the congresswoman's office to give
10079 the view of the MPAA. Aided by his lawyer, as Valenti told me, Valenti
10080 informed the congresswoman that the MPAA would oppose the Eldred
10081 Act. The reasons are embarrassingly thin. More importantly, their
10082 thinness shows something clear about what this debate is really about.
10083 </p><p>
10084 The MPAA argued first that Congress had <span class="quote">«<span class="quote">firmly rejected the central
10085 concept in the proposed bill</span>»</span>&#8212;that copyrights be renewed. That
10086 was true, but irrelevant, as Congress's <span class="quote">«<span class="quote">firm rejection</span>»</span> had occurred
10087
10088 long before the Internet made subsequent uses much more likely.
10089 Second, they argued that the proposal would harm poor copyright
10090 owners&#8212;apparently those who could not afford the $1 fee. Third,
10091 they argued that Congress had determined that extending a copyright
10092 term would encourage restoration work. Maybe in the case of the small
10093 percentage of work covered by copyright law that is still commercially
10094 valuable, but again this was irrelevant, as the proposal would not cut
10095 off the extended term unless the $1 fee was not paid. Fourth, the MPAA
10096 argued that the bill would impose <span class="quote">«<span class="quote">enormous</span>»</span> costs, since a
10097 registration system is not free. True enough, but those costs are
10098 certainly less than the costs of clearing the rights for a copyright
10099 whose owner is not known. Fifth, they worried about the risks if the
10100 copyright to a story underlying a film were to pass into the public
10101 domain. But what risk is that? If it is in the public domain, then the
10102 film is a valid derivative use.
10103 </p><p>
10104 Finally, the MPAA argued that existing law enabled copyright owners to
10105 do this if they wanted. But the whole point is that there are
10106 thousands of copyright owners who don't even know they have a
10107 copyright to give. Whether they are free to give away their copyright
10108 or not&#8212;a controversial claim in any case&#8212;unless they know
10109 about a copyright, they're not likely to.
10110 </p><p>
10111 <span class="strong"><strong>At the beginning</strong></span> of this book, I
10112 told two stories about the law reacting to changes in technology. In
10113 the one, common sense prevailed.  In the other, common sense was
10114 delayed. The difference between the two stories was the power of the
10115 opposition&#8212;the power of the side that fought to defend the
10116 status quo. In both cases, a new technology threatened old
10117 interests. But in only one case did those interest's have the power to
10118 protect themselves against this new competitive threat.
10119 </p><p>
10120 I used these two cases as a way to frame the war that this book has
10121 been about. For here, too, a new technology is forcing the law to react.
10122 And here, too, we should ask, is the law following or resisting common
10123 sense? If common sense supports the law, what explains this common
10124 sense?
10125 </p><p>
10126
10127
10128 When the issue is piracy, it is right for the law to back the
10129 copyright owners. The commercial piracy that I described is wrong and
10130 harmful, and the law should work to eliminate it. When the issue is
10131 p2p sharing, it is easy to understand why the law backs the owners
10132 still: Much of this sharing is wrong, even if much is harmless. When
10133 the issue is copyright terms for the Mickey Mouses of the world, it is
10134 possible still to understand why the law favors Hollywood: Most people
10135 don't recognize the reasons for limiting copyright terms; it is thus
10136 still possible to see good faith within the resistance.
10137 </p><a class="indexterm" name="idp42183312"></a><p>
10138 But when the copyright owners oppose a proposal such as the Eldred
10139 Act, then, finally, there is an example that lays bare the naked
10140 selfinterest driving this war. This act would free an extraordinary
10141 range of content that is otherwise unused. It wouldn't interfere with
10142 any copyright owner's desire to exercise continued control over his
10143 content. It would simply liberate what Kevin Kelly calls the <span class="quote">«<span class="quote">Dark
10144 Content</span>»</span> that fills archives around the world. So when the warriors
10145 oppose a change like this, we should ask one simple question:
10146 </p><p>
10147 What does this industry really want?
10148 </p><p>
10149 With very little effort, the warriors could protect their content. So
10150 the effort to block something like the Eldred Act is not really about
10151 protecting <span class="emphasis"><em>their</em></span> content. The effort to block the
10152 Eldred Act is an effort to assure that nothing more passes into the
10153 public domain. It is another step to assure that the public domain
10154 will never compete, that there will be no use of content that is not
10155 commercially controlled, and that there will be no commercial use of
10156 content that doesn't require <span class="emphasis"><em>their</em></span> permission
10157 first.
10158 </p><p>
10159 The opposition to the Eldred Act reveals how extreme the other side
10160 is. The most powerful and sexy and well loved of lobbies really has as
10161 its aim not the protection of <span class="quote">«<span class="quote">property</span>»</span> but the rejection of a
10162 tradition.  Their aim is not simply to protect what is
10163 theirs. <span class="emphasis"><em>Their aim is to assure that all there is is what is
10164 theirs</em></span>.
10165 </p><p>
10166 It is not hard to understand why the warriors take this view. It is not
10167 hard to see why it would benefit them if the competition of the public
10168
10169
10170 domain tied to the Internet could somehow be quashed. Just as RCA
10171 feared the competition of FM, they fear the competition of a public
10172 domain connected to a public that now has the means to create with it
10173 and to share its own creation.
10174 </p><a class="indexterm" name="idp42190304"></a><a class="indexterm" name="idp42191088"></a><p>
10175 What is hard to understand is why the public takes this view. It is
10176 as if the law made airplanes trespassers. The MPAA stands with the
10177 Causbys and demands that their remote and useless property rights be
10178 respected, so that these remote and forgotten copyright holders might
10179 block the progress of others.
10180 </p><p>
10181 All this seems to follow easily from this untroubled acceptance of the
10182 <span class="quote">«<span class="quote">property</span>»</span> in intellectual property. Common sense supports it, and so
10183 long as it does, the assaults will rain down upon the technologies of
10184 the Internet. The consequence will be an increasing <span class="quote">«<span class="quote">permission
10185 society.</span>»</span>  The past can be cultivated only if you can identify the
10186 owner and gain permission to build upon his work. The future will be
10187 controlled by this dead (and often unfindable) hand of the past.
10188 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp42145840" class="footnote"><p><a href="#idp42145840" class="para"><sup class="para">[194] </sup></a>
10189
10190 <a class="indexterm" name="idp42146544"></a>
10191 Until the 1908 Berlin Act of the Berne Convention, national copyright
10192 legislation sometimes made protection depend upon compliance with
10193 formalities such as registration, deposit, and affixation of notice of
10194 the author's claim of copyright. However, starting with the 1908 act,
10195 every text of the Convention has provided that <span class="quote">«<span class="quote">the enjoyment and the
10196 exercise</span>»</span> of rights guaranteed by the Convention <span class="quote">«<span class="quote">shall not be subject
10197 to any formality.</span>»</span>  The prohibition against formalities is presently
10198 embodied in Article 5(2) of the Paris Text of the Berne
10199 Convention. Many countries continue to impose some form of deposit or
10200 registration requirement, albeit not as a condition of
10201 copyright. French law, for example, requires the deposit of copies of
10202 works in national repositories, principally the National Museum.
10203 Copies of books published in the United Kingdom must be deposited in
10204 the British Library. The German Copyright Act provides for a Registrar
10205 of Authors where the author's true name can be filed in the case of
10206 anonymous or pseudonymous works. Paul Goldstein, <em class="citetitle">International
10207 Intellectual Property Law, Cases and Materials</em> (New York: Foundation
10208 Press, 2001), 153&#8211;54.  </p></div></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-conclusion"></a>Chapter . Conclusion</h1></div></div></div><a class="indexterm" name="idxafricamedicationsforhivpatientsin"></a><a class="indexterm" name="idxaidsmedications"></a><a class="indexterm" name="idxantiretroviraldrugs"></a><a class="indexterm" name="idxdevelopingcountriesforeignpatentcostsin2"></a><a class="indexterm" name="idxdrugspharmaceutical"></a><a class="indexterm" name="idxhivaidstherapies"></a><p>
10209 <span class="strong"><strong>There are more</strong></span> than 35 million
10210 people with the AIDS virus worldwide. Twenty-five million of them live
10211 in sub-Saharan Africa.  Seventeen million have already died. Seventeen
10212 million Africans is proportional percentage-wise to seven million
10213 Americans. More importantly, it is seventeen million Africans.
10214 </p><p>
10215 There is no cure for AIDS, but there are drugs to slow its
10216 progression.  These antiretroviral therapies are still experimental,
10217 but they have already had a dramatic effect. In the United States,
10218 AIDS patients who regularly take a cocktail of these drugs increase
10219 their life expectancy by ten to twenty years. For some, the drugs make
10220 the disease almost invisible.
10221 </p><p>
10222 These drugs are expensive. When they were first introduced in the
10223 United States, they cost between $10,000 and $15,000 per person per
10224 year. Today, some cost $25,000 per year. At these prices, of course, no
10225 African nation can afford the drugs for the vast majority of its
10226                 population:
10227 $15,000 is thirty times the per capita gross national product of
10228 Zimbabwe. At these prices, the drugs are totally unavailable.<a href="#ftn.idp42208704" class="footnote" name="idp42208704"><sup class="footnote">[195]</sup></a>
10229 </p><a class="indexterm" name="idxpatentsonpharmaceuticals"></a><a class="indexterm" name="idxpharmaceuticalpatents"></a><p>
10230
10231 These prices are not high because the ingredients of the drugs are
10232 expensive. These prices are high because the drugs are protected by
10233 patents. The drug companies that produced these life-saving mixes
10234 enjoy at least a twenty-year monopoly for their inventions. They use
10235 that monopoly power to extract the most they can from the market. That
10236 power is in turn used to keep the prices high.
10237 </p><p>
10238 There are many who are skeptical of patents, especially drug
10239 patents. I am not. Indeed, of all the areas of research that might be
10240 supported by patents, drug research is, in my view, the clearest case
10241 where patents are needed. The patent gives the drug company some
10242 assurance that if it is successful in inventing a new drug to treat a
10243 disease, it will be able to earn back its investment and more. This is
10244 socially an extremely valuable incentive. I am the last person who
10245 would argue that the law should abolish it, at least without other
10246 changes.
10247 </p><p>
10248 But it is one thing to support patents, even drug patents. It is
10249 another thing to determine how best to deal with a crisis. And as
10250 African leaders began to recognize the devastation that AIDS was
10251 bringing, they started looking for ways to import HIV treatments at
10252 costs significantly below the market price.
10253 </p><a class="indexterm" name="idxinternationallaw2"></a><a class="indexterm" name="idxparallelimportation"></a><a class="indexterm" name="idxsouthafricarepublicofpharmaceuticalimportsby"></a><p>
10254 In 1997, South Africa tried one tack. It passed a law to allow the
10255 importation of patented medicines that had been produced or sold in
10256 another nation's market with the consent of the patent owner. For
10257 example, if the drug was sold in India, it could be imported into
10258 Africa from India. This is called <span class="quote">«<span class="quote">parallel importation,</span>»</span> and it is
10259 generally permitted under international trade law and is specifically
10260 permitted within the European Union.<a href="#ftn.idp42223104" class="footnote" name="idp42223104"><sup class="footnote">[196]</sup></a>
10261 </p><a class="indexterm" name="idp42226384"></a><p>
10262 However, the United States government opposed the bill. Indeed, more
10263 than opposed. As the International Intellectual Property Association
10264 characterized it, <span class="quote">«<span class="quote">The U.S. government pressured South Africa &#8230;
10265 not to permit compulsory licensing or parallel
10266 imports.</span>»</span><a href="#ftn.idp41776880" class="footnote" name="idp41776880"><sup class="footnote">[197]</sup></a>
10267 Through the Office of the United States Trade Representative, the
10268 government asked South Africa to change the law&#8212;and to add
10269 pressure to that request, in 1998, the USTR listed South Africa for
10270 possible trade sanctions.
10271
10272 That same year, more than forty pharmaceutical companies began
10273 proceedings in the South African courts to challenge the government's
10274 actions. The United States was then joined by other governments from
10275 the EU. Their claim, and the claim of the pharmaceutical companies,
10276 was that South Africa was violating its obligations under
10277 international law by discriminating against a particular kind of
10278 patent&#8212; pharmaceutical patents. The demand of these governments,
10279 with the United States in the lead, was that South Africa respect
10280 these patents as it respects any other patent, regardless of any
10281 effect on the treatment of AIDS within South Africa.<a href="#ftn.idp42230240" class="footnote" name="idp42230240"><sup class="footnote">[198]</sup></a>
10282 </p><a class="indexterm" name="idp42233360"></a><p>
10283 We should place the intervention by the United States in context.  No
10284 doubt patents are not the most important reason that Africans don't
10285 have access to drugs. Poverty and the total absence of an effective
10286 health care infrastructure matter more. But whether patents are the
10287 most important reason or not, the price of drugs has an effect on
10288 their demand, and patents affect price. And so, whether massive or
10289 marginal, there was an effect from our government's intervention to
10290 stop the flow of medications into Africa.
10291 </p><p>
10292 By stopping the flow of HIV treatment into Africa, the United
10293 States government was not saving drugs for United States citizens.
10294 This is not like wheat (if they eat it, we can't); instead, the flow that the
10295 United States intervened to stop was, in effect, a flow of knowledge:
10296 information about how to take chemicals that exist within Africa, and
10297 turn those chemicals into drugs that would save 15 to 30 million lives.
10298 </p><p>
10299 Nor was the intervention by the United States going to protect the
10300 profits of United States drug companies&#8212;at least, not substantially. It
10301 was not as if these countries were in the position to buy the drugs for
10302 the prices the drug companies were charging. Again, the Africans are
10303 wildly too poor to afford these drugs at the offered prices. Stopping the
10304 parallel import of these drugs would not substantially increase the sales
10305 by U.S. companies.
10306 </p><p>
10307 Instead, the argument in favor of restricting this flow of
10308 information, which was needed to save the lives of millions, was an
10309 argument
10310
10311 about the sanctity of property.<a href="#ftn.idp42238000" class="footnote" name="idp42238000"><sup class="footnote">[199]</sup></a>
10312 It was because <span class="quote">«<span class="quote">intellectual property</span>»</span> would be violated that these
10313 drugs should not flow into Africa. It was a principle about the
10314 importance of <span class="quote">«<span class="quote">intellectual property</span>»</span> that led these government actors
10315 to intervene against the South African response to AIDS.
10316 </p><a class="indexterm" name="idp42245312"></a><p>
10317 Now just step back for a moment. There will be a time thirty years
10318 from now when our children look back at us and ask, how could we have
10319 let this happen? How could we allow a policy to be pursued whose
10320 direct cost would be to speed the death of 15 to 30 million Africans,
10321 and whose only real benefit would be to uphold the <span class="quote">«<span class="quote">sanctity</span>»</span> of an
10322 idea?  What possible justification could there ever be for a policy
10323 that results in so many deaths? What exactly is the insanity that
10324 would allow so many to die for such an abstraction?
10325 </p><a class="indexterm" name="idxcorporationsinpharmaceuticalindustry"></a><p>
10326 Some blame the drug companies. I don't. They are corporations.
10327 Their managers are ordered by law to make money for the corporation.
10328 They push a certain patent policy not because of ideals, but because it is
10329 the policy that makes them the most money. And it only makes them the
10330 most money because of a certain corruption within our political system&#8212;
10331 a corruption the drug companies are certainly not responsible for.
10332 </p><p>
10333 The corruption is our own politicians' failure of integrity. For the
10334 drug companies would love&#8212;they say, and I believe them&#8212;to
10335 sell their drugs as cheaply as they can to countries in Africa and
10336 elsewhere.  There are issues they'd have to resolve to make sure the
10337 drugs didn't get back into the United States, but those are mere
10338 problems of technology.  They could be overcome.
10339 </p><a class="indexterm" name="idxintellectualpropertyrightsofdrugpatents"></a><p>
10340 A different problem, however, could not be overcome. This is the
10341 fear of the grandstanding politician who would call the presidents of
10342 the drug companies before a Senate or House hearing, and ask, <span class="quote">«<span class="quote">How
10343 is it you can sell this HIV drug in Africa for only $1 a pill, but the same
10344 drug would cost an American $1,500?</span>»</span> Because there is no <span class="quote">«<span class="quote">sound
10345 bite</span>»</span> answer to that question, its effect would be to induce regulation
10346 of prices in America. The drug companies thus avoid this spiral by
10347 avoiding the first step. They reinforce the idea that property should be
10348
10349 sacred. They adopt a rational strategy in an irrational context, with the
10350 unintended consequence that perhaps millions die. And that rational
10351 strategy thus becomes framed in terms of this ideal&#8212;the sanctity of an
10352 idea called <span class="quote">«<span class="quote">intellectual property.</span>»</span>
10353 </p><a class="indexterm" name="idp42256176"></a><a class="indexterm" name="idp42257424"></a><a class="indexterm" name="idp42258624"></a><a class="indexterm" name="idp42259936"></a><a class="indexterm" name="idp42261376"></a><a class="indexterm" name="idp42262624"></a><a class="indexterm" name="idp42263936"></a><p>
10354 So when the common sense of your child confronts you, what will
10355 you say? When the common sense of a generation finally revolts
10356 against what we have done, how will we justify what we have done?
10357 What is the argument?
10358 </p><p>
10359 A sensible patent policy could endorse and strongly support the patent
10360 system without having to reach everyone everywhere in exactly the same
10361 way. Just as a sensible copyright policy could endorse and strongly
10362 support a copyright system without having to regulate the spread of
10363 culture perfectly and forever, a sensible patent policy could endorse
10364 and strongly support a patent system without having to block the
10365 spread of drugs to a country not rich enough to afford market prices
10366 in any case. A sensible policy, in other words, could be a balanced
10367 policy. For most of our history, both copyright and patent policies
10368 were balanced in just this sense.
10369 </p><a class="indexterm" name="idp42267008"></a><a class="indexterm" name="idp42268352"></a><a class="indexterm" name="idp42269696"></a><p>
10370 But we as a culture have lost this sense of balance. We have lost the
10371 critical eye that helps us see the difference between truth and
10372 extremism.  A certain property fundamentalism, having no connection to
10373 our tradition, now reigns in this culture&#8212;bizarrely, and with
10374 consequences more grave to the spread of ideas and culture than almost
10375 any other single policy decision that we as a democracy will make.
10376 </p><a class="indexterm" name="idp42271216"></a><p>
10377 <span class="strong"><strong>A simple idea</strong></span> blinds us, and under
10378 the cover of darkness, much happens that most of us would reject if
10379 any of us looked. So uncritically do we accept the idea of property in
10380 ideas that we don't even notice how monstrous it is to deny ideas to a
10381 people who are dying without them. So uncritically do we accept the
10382 idea of property in culture that we don't even question when the
10383 control of that property removes our
10384
10385 ability, as a people, to develop our culture democratically. Blindness
10386 becomes our common sense. And the challenge for anyone who would
10387 reclaim the right to cultivate our culture is to find a way to make
10388 this common sense open its eyes.
10389 </p><p>
10390 So  far, common sense sleeps. There is no revolt. Common sense
10391 does not yet see what there could be to revolt about. The extremism
10392 that now dominates this debate fits with ideas that seem natural, and
10393 that fit is reinforced by the RCAs of our day. They wage a frantic war
10394 to fight <span class="quote">«<span class="quote">piracy,</span>»</span> and devastate a culture for creativity. They defend
10395 the idea of <span class="quote">«<span class="quote">creative property,</span>»</span> while transforming real creators into
10396 modern-day sharecroppers. They are insulted by the idea that rights
10397 should be balanced, even though each of the major players in this
10398 content war was itself a beneficiary of a more balanced ideal. The
10399 hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even
10400 noticed. Powerful lobbies, complex issues, and MTV attention spans
10401 produce the <span class="quote">«<span class="quote">perfect storm</span>»</span> for free culture.
10402 </p><a class="indexterm" name="idp42277712"></a><a class="indexterm" name="idp42278528"></a><a class="indexterm" name="idxintellectualpropertyrightsinternationalorganizationonissuesof"></a><a class="indexterm" name="idp42281232"></a><a class="indexterm" name="idp42282336"></a><a class="indexterm" name="idp42283168"></a><a class="indexterm" name="idp42284000"></a><a class="indexterm" name="idp42284832"></a><a class="indexterm" name="idp42285904"></a><a class="indexterm" name="idp42286704"></a><a class="indexterm" name="idxworldintellectualpropertyorganizationwipo"></a><a class="indexterm" name="idp42289184"></a><a class="indexterm" name="idp42290000"></a><a class="indexterm" name="idp42290832"></a><a class="indexterm" name="idxbiomedicalresearch"></a><p>
10403 <span class="strong"><strong>In August 2003</strong></span>, a fight broke out
10404 in the United States about a decision by the World Intellectual
10405 Property Organization to cancel a meeting.<a href="#ftn.idp42294304" class="footnote" name="idp42294304"><sup class="footnote">[200]</sup></a>
10406 At the request of a wide range of interests, WIPO had decided to hold
10407 a meeting to discuss <span class="quote">«<span class="quote">open and collaborative projects to create public
10408 goods.</span>»</span> These are projects that have been successful in producing
10409 public goods without relying exclusively upon a proprietary use of
10410 intellectual property. Examples include the Internet and the World
10411 Wide Web, both of which were developed on the basis of protocols in
10412 the public domain. It included an emerging trend to support open
10413 academic journals, including the Public Library of Science project
10414 that I describe in chapter
10415 <a class="xref" href="#c-afterword" title="Chapter . Afterword"></a>.  It
10416 included a project to develop single nucleotide polymorphisms (SNPs),
10417 which are thought to have great significance in biomedical
10418 research. (That nonprofit project comprised a consortium of the
10419 Wellcome Trust and pharmaceutical and technological companies,
10420 including Amersham Biosciences, AstraZeneca,
10421
10422 Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche,
10423 Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It
10424 included the Global Positioning System, which Ronald Reagan set free
10425 in the early 1980s. And it included <span class="quote">«<span class="quote">open source and free software.</span>»</span>
10426 </p><a class="indexterm" name="idp42304464"></a><p>
10427 The aim of the meeting was to consider this wide range of projects
10428 from one common perspective: that none of these projects relied upon
10429 intellectual property extremism. Instead, in all of them, intellectual
10430 property was balanced by agreements to keep access open or to impose
10431 limitations on the way in which proprietary claims might be used.
10432 </p><a class="indexterm" name="idxlessiglawrenceininternationaldebateonintellectualproperty"></a><p>
10433 From the perspective of this book, then, the conference was ideal.<a href="#ftn.idp42308688" class="footnote" name="idp42308688"><sup class="footnote">[201]</sup></a>
10434 The projects within its scope included both commercial and
10435 noncommercial work. They primarily involved science, but from many
10436 perspectives.  And WIPO was an ideal venue for this discussion, since
10437 WIPO is the preeminent international body dealing with intellectual
10438 property issues.
10439 </p><a class="indexterm" name="idxworldsummitontheinformationsocietywsis"></a><p>
10440 Indeed, I was once publicly scolded for not recognizing this fact
10441 about WIPO. In February 2003, I delivered a keynote address to a
10442 preparatory conference for the World Summit on the Information Society
10443 (WSIS). At a press conference before the address, I was asked what I
10444 would say. I responded that I would be talking a little about the
10445 importance of balance in intellectual property for the development of
10446 an information society. The moderator for the event then promptly
10447 interrupted to inform me and the assembled reporters that no question
10448 about intellectual property would be discussed by WSIS, since those
10449 questions were the exclusive domain of WIPO. In the talk that I had
10450 prepared, I had actually made the issue of intellectual property
10451 relatively minor. But after this astonishing statement, I made
10452 intellectual property the sole focus of my talk. There was no way to
10453 talk about an <span class="quote">«<span class="quote">Information Society</span>»</span> unless one also talked about the
10454 range of information and culture that would be free. My talk did not
10455 make my immoderate moderator very happy. And she was no doubt correct
10456 that the scope of intellectual property protections was ordinarily the
10457 stuff of
10458
10459 WIPO. But in my view, there couldn't be too much of a conversation
10460 about how much intellectual property is needed, since in my view, the
10461 very idea of balance in intellectual property had been lost.
10462 </p><p>
10463 So whether or not WSIS can discuss balance in intellectual property, I
10464 had thought it was taken for granted that WIPO could and should. And
10465 thus the meeting about <span class="quote">«<span class="quote">open and collaborative projects to create
10466 public goods</span>»</span> seemed perfectly appropriate within the WIPO agenda.
10467 </p><a class="indexterm" name="idp42315232"></a><a class="indexterm" name="idp42316624"></a><a class="indexterm" name="idp42318064"></a><a class="indexterm" name="idxfreesoftwareopensourcesoftwarefsoss"></a><a class="indexterm" name="idp42320944"></a><a class="indexterm" name="idxmicrosoftonfreesoftware"></a><p>
10468 But there is one project within that list that is highly
10469 controversial, at least among lobbyists. That project is <span class="quote">«<span class="quote">open source
10470 and free software.</span>»</span>  Microsoft in particular is wary of discussion of
10471 the subject. From its perspective, a conference to discuss open source
10472 and free software would be like a conference to discuss Apple's
10473 operating system. Both open source and free software compete with
10474 Microsoft's software. And internationally, many governments have begun
10475 to explore requirements that they use open source or free software,
10476 rather than <span class="quote">«<span class="quote">proprietary software,</span>»</span> for their own internal uses.
10477 </p><a class="indexterm" name="idp42325424"></a><a class="indexterm" name="idp42326528"></a><a class="indexterm" name="idp42327360"></a><a class="indexterm" name="idp42328176"></a><p>
10478 I don't mean to enter that debate here. It is important only to
10479 make clear that the distinction is not between commercial and
10480 noncommercial software. There are many important companies that depend
10481 fundamentally upon open source and free software, IBM being the most
10482 prominent. IBM is increasingly shifting its focus to the GNU/Linux
10483 operating system, the most famous bit of <span class="quote">«<span class="quote">free software</span>»</span>&#8212;and IBM
10484 is emphatically a commercial entity. Thus, to support <span class="quote">«<span class="quote">open source and
10485 free software</span>»</span> is not to oppose commercial entities. It is, instead,
10486 to support a mode of software development that is different from
10487 Microsoft's.<a href="#ftn.idp42330624" class="footnote" name="idp42330624"><sup class="footnote">[202]</sup></a>
10488 </p><a class="indexterm" name="idp42336352"></a><a class="indexterm" name="idp42337840"></a><a class="indexterm" name="idp42338672"></a><p>
10489 More important for our purposes, to support <span class="quote">«<span class="quote">open source and free
10490 software</span>»</span> is not to oppose copyright. <span class="quote">«<span class="quote">Open source and free software</span>»</span>
10491 is not software in the public domain. Instead, like Microsoft's
10492 software, the copyright owners of free and open source software insist
10493 quite strongly that the terms of their software license be respected
10494 by
10495
10496 adopters of free and open source software. The terms of that license
10497 are no doubt different from the terms of a proprietary software
10498 license.  Free software licensed under the General Public License
10499 (GPL), for example, requires that the source code for the software be
10500 made available by anyone who modifies and redistributes the
10501 software. But that requirement is effective only if copyright governs
10502 software. If copyright did not govern software, then free software
10503 could not impose the same kind of requirements on its adopters. It
10504 thus depends upon copyright law just as Microsoft does.
10505 </p><a class="indexterm" name="idxintellectualpropertyrightsinternationalorganizationonissuesof2"></a><a class="indexterm" name="idxworldintellectualpropertyorganizationwipo2"></a><a class="indexterm" name="idxkrimjonathan"></a><a class="indexterm" name="idp42347072"></a><p>
10506 It is therefore understandable that as a proprietary software
10507 developer, Microsoft would oppose this WIPO meeting, and
10508 understandable that it would use its lobbyists to get the United
10509 States government to oppose it, as well. And indeed, that is just what
10510 was reported to have happened. According to Jonathan Krim of the
10511 <em class="citetitle">Washington Post</em>, Microsoft's lobbyists succeeded in getting the United
10512 States government to veto the meeting.<a href="#ftn.idp42349296" class="footnote" name="idp42349296"><sup class="footnote">[203]</sup></a>
10513 And without U.S. backing, the meeting was canceled.
10514 </p><p>
10515 I don't blame Microsoft for doing what it can to advance its own
10516 interests, consistent with the law. And lobbying governments is
10517 plainly consistent with the law. There was nothing surprising about
10518 its lobbying here, and nothing terribly surprising about the most
10519 powerful software producer in the United States having succeeded in
10520 its lobbying efforts.
10521 </p><a class="indexterm" name="idp42352272"></a><a class="indexterm" name="idp42353664"></a><a class="indexterm" name="idxpatentandtrademarkofficeus"></a><p>
10522 What was surprising was the United States government's reason for
10523 opposing the meeting. Again, as reported by Krim, Lois Boland, acting
10524 director of international relations for the U.S. Patent and Trademark
10525 Office, explained that <span class="quote">«<span class="quote">open-source software runs counter to the
10526 mission of WIPO, which is to promote intellectual-property rights.</span>»</span>
10527 She is quoted as saying, <span class="quote">«<span class="quote">To hold a meeting which has as its purpose
10528 to disclaim or waive such rights seems to us to be contrary to the
10529 goals of WIPO.</span>»</span>
10530 </p><a class="indexterm" name="idp42357760"></a><p>
10531 These statements are astonishing on a number of levels.
10532 </p><a class="indexterm" name="idp42359456"></a><p>
10533 First, they are just flat wrong. As I described, most open source and
10534 free software relies fundamentally upon the intellectual property
10535 right called <span class="quote">«<span class="quote">copyright</span>»</span>.  Without it, restrictions imposed by those
10536 licenses wouldn't work. Thus, to say it <span class="quote">«<span class="quote">runs counter</span>»</span> to the mission
10537 of promoting intellectual property rights reveals an extraordinary gap
10538 in understanding&#8212;the sort of mistake that is excusable in a
10539 first-year law student, but an embarrassment from a high government
10540 official dealing with intellectual property issues.
10541 </p><a class="indexterm" name="idp42363072"></a><a class="indexterm" name="idp42363776"></a><a class="indexterm" name="idp42364880"></a><a class="indexterm" name="idp42365696"></a><p>
10542 Second, who ever said that WIPO's exclusive aim was to <span class="quote">«<span class="quote">promote</span>»</span>
10543 intellectual property maximally? As I had been scolded at the
10544 preparatory conference of WSIS, WIPO is to consider not only how best
10545 to protect intellectual property, but also what the best balance of
10546 intellectual property is. As every economist and lawyer knows, the
10547 hard question in intellectual property law is to find that
10548 balance. But that there should be limits is, I had thought,
10549 uncontested. One wants to ask Ms. Boland, are generic drugs (drugs
10550 based on drugs whose patent has expired) contrary to the WIPO mission?
10551 Does the public domain weaken intellectual property? Would it have
10552 been better if the protocols of the Internet had been patented?
10553 </p><a class="indexterm" name="idp42368352"></a><p>
10554 Third, even if one believed that the purpose of WIPO was to maximize
10555 intellectual property rights, in our tradition, intellectual property
10556 rights are held by individuals and corporations. They get to decide
10557 what to do with those rights because, again, they are
10558 <span class="emphasis"><em>their</em></span> rights. If they want to <span class="quote">«<span class="quote">waive</span>»</span> or
10559 <span class="quote">«<span class="quote">disclaim</span>»</span> their rights, that is, within our tradition, totally
10560 appropriate. When Bill Gates gives away more than $20 billion to do
10561 good in the world, that is not inconsistent with the objectives of the
10562 property system. That is, on the contrary, just what a property system
10563 is supposed to be about: giving individuals the right to decide what
10564 to do with <span class="emphasis"><em>their</em></span> property.
10565 </p><a class="indexterm" name="idxbolandlois"></a><p>
10566 When Ms. Boland says that there is something wrong with a meeting
10567 <span class="quote">«<span class="quote">which has as its purpose to disclaim or waive such rights,</span>»</span> she's
10568 saying that WIPO has an interest in interfering with the choices of
10569
10570 the individuals who own intellectual property rights. That somehow,
10571 WIPO's objective should be to stop an individual from <span class="quote">«<span class="quote">waiving</span>»</span> or
10572 <span class="quote">«<span class="quote">disclaiming</span>»</span> an intellectual property right. That the interest of
10573 WIPO is not just that intellectual property rights be maximized, but
10574 that they also should be exercised in the most extreme and restrictive
10575 way possible.
10576 </p><a class="indexterm" name="idxfeudalsystem"></a><a class="indexterm" name="idxpropertyrightsfeudalsystemof"></a><p>
10577 There is a history of just such a property system that is well known
10578 in the Anglo-American tradition. It is called <span class="quote">«<span class="quote">feudalism.</span>»</span> Under
10579 feudalism, not only was property held by a relatively small number of
10580 individuals and entities. And not only were the rights that ran with
10581 that property powerful and extensive. But the feudal system had a
10582 strong interest in assuring that property holders within that system
10583 not weaken feudalism by liberating people or property within their
10584 control to the free market. Feudalism depended upon maximum control
10585 and concentration. It fought any freedom that might interfere with
10586 that control.
10587 </p><a class="indexterm" name="idp42380928"></a><a class="indexterm" name="idp42381744"></a><p>
10588 As Peter Drahos and John Braithwaite relate, this is precisely the
10589 choice we are now making about intellectual property.<a href="#ftn.idp42382960" class="footnote" name="idp42382960"><sup class="footnote">[204]</sup></a>
10590 We will have an information society. That much is certain. Our only
10591 choice now is whether that information society will be
10592 <span class="emphasis"><em>free</em></span> or <span class="emphasis"><em>feudal</em></span>. The trend is
10593 toward the feudal.
10594 </p><a class="indexterm" name="idp42386240"></a><a class="indexterm" name="idp42387488"></a><p>
10595 When this battle broke, I blogged it. A spirited debate within the
10596 comment section ensued. Ms. Boland had a number of supporters who
10597 tried to show why her comments made sense. But there was one comment
10598 that was particularly depressing for me. An anonymous poster wrote,
10599 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idp42389744"></a><a class="indexterm" name="idp42391184"></a><p>
10600 George, you misunderstand Lessig: He's only talking about the world as
10601 it should be (<span class="quote">«<span class="quote">the goal of WIPO, and the goal of any government,
10602 should be to promote the right balance of intellectual property rights,
10603 not simply to promote intellectual property rights</span>»</span>), not as it is. If
10604 we were talking about the world as it is, then of course Boland didn't
10605 say anything wrong. But in the world
10606
10607 as Lessig would have it, then of course she did. Always pay attention
10608 to the distinction between Lessig's world and ours.
10609 </p></blockquote></div><p>
10610 I missed the irony the first time I read it. I read it quickly and
10611 thought the poster was supporting the idea that seeking balance was
10612 what our government should be doing. (Of course, my criticism of Ms.
10613 Boland was not about whether she was seeking balance or not; my
10614 criticism was that her comments betrayed a first-year law student's
10615 mistake. I have no illusion about the extremism of our government,
10616 whether Republican or Democrat. My only illusion apparently is about
10617 whether our government should speak the truth or not.)
10618 </p><a class="indexterm" name="idp42395344"></a><p>
10619 Obviously, however, the poster was not supporting that idea.  Instead,
10620 the poster was ridiculing the very idea that in the real world, the
10621 <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
10622 intellectual property. That was obviously silly to him. And it
10623 obviously betrayed, he believed, my own silly utopianism. <span class="quote">«<span class="quote">Typical for
10624 an academic,</span>»</span> the poster might well have continued.
10625 </p><p>
10626 I understand criticism of academic utopianism. I think utopianism is
10627 silly, too, and I'd be the first to poke fun at the absurdly
10628 unrealistic ideals of academics throughout history (and not just in
10629 our own country's history).
10630 </p><p>
10631 But when it has become silly to suppose that the role of our
10632 government should be to <span class="quote">«<span class="quote">seek balance,</span>»</span> then count me with the silly,
10633 for that means that this has become quite serious indeed. If it should
10634 be obvious to everyone that the government does not seek balance, that
10635 the government is simply the tool of the most powerful lobbyists, that
10636 the idea of holding the government to a different standard is absurd,
10637 that the idea of demanding of the government that it speak truth and
10638 not lies is just naïve, then who have we, the most powerful
10639 democracy in the world, become?
10640 </p><p>
10641 It might be crazy to expect a high government official to speak
10642 the truth. It might be crazy to believe that government policy will be
10643 something more than the handmaiden of the most powerful interests.
10644
10645 It might be crazy to argue that we should preserve a tradition that has
10646 been part of our tradition for most of our history&#8212;free culture.
10647 </p><a class="indexterm" name="idp42401776"></a><p>
10648 If this is crazy, then let there be more crazies. Soon.
10649 </p><a class="indexterm" name="idp42403440"></a><a class="indexterm" name="idp42404256"></a><a class="indexterm" name="idp42405072"></a><p>
10650 <span class="strong"><strong>There are moments</strong></span> of hope in this
10651 struggle. And moments that surprise. When the FCC was considering
10652 relaxing ownership rules, which would thereby further increase the
10653 concentration in media ownership, an extraordinary bipartisan
10654 coalition formed to fight this change. For perhaps the first time in
10655 history, interests as diverse as the NRA, the ACLU, Moveon.org,
10656 William Safire, Ted Turner, and CodePink Women for Peace organized to
10657 oppose this change in FCC policy. An astonishing 700,000 letters were
10658 sent to the FCC, demanding more hearings and a different result.
10659 </p><p>
10660 This activism did not stop the FCC, but soon after, a broad coalition
10661 in the Senate voted to reverse the FCC decision. The hostile hearings
10662 leading up to that vote revealed just how powerful this movement had
10663 become. There was no substantial support for the FCC's decision, and
10664 there was broad and sustained support for fighting further
10665 concentration in the media.
10666 </p><p>
10667 But even this movement misses an important piece of the puzzle.
10668 Largeness as such is not bad. Freedom is not threatened just because
10669 some become very rich, or because there are only a handful of big
10670 players.  The poor quality of Big Macs or Quarter Pounders does not
10671 mean that you can't get a good hamburger from somewhere else.
10672 </p><p>
10673 The danger in media concentration comes not from the concentration,
10674 but instead from the feudalism that this concentration, tied to the
10675 change in copyright, produces. It is not just that there are a few
10676 powerful companies that control an ever expanding slice of the
10677 media. It is that this concentration can call upon an equally bloated
10678 range of rights&#8212;property rights of a historically extreme
10679 form&#8212;that makes their bigness bad.
10680 </p><p>
10681 It is therefore significant that so many would rally to demand
10682 competition and increased diversity. Still, if the rally is understood
10683 as being about bigness alone, it is not terribly surprising. We
10684 Americans have a long history of fighting <span class="quote">«<span class="quote">big,</span>»</span> wisely or not. That
10685 we could be motivated to fight <span class="quote">«<span class="quote">big</span>»</span> again is not something new.
10686 </p><p>
10687 It would be something new, and something very important, if an equal
10688 number could be rallied to fight the increasing extremism built within
10689 the idea of <span class="quote">«<span class="quote">intellectual property.</span>»</span> Not because balance is alien to
10690 our tradition; indeed, as I've argued, balance is our tradition. But
10691 because the muscle to think critically about the scope of anything
10692 called <span class="quote">«<span class="quote">property</span>»</span> is not well exercised within this tradition anymore.
10693 </p><p>
10694 If we were Achilles, this would be our heel. This would be the place
10695 of our tragedy.
10696 </p><a class="indexterm" name="idp42414352"></a><p>
10697 <span class="strong"><strong>As I write</strong></span> these final words, the
10698 news is filled with stories about the RIAA lawsuits against almost
10699 three hundred individuals.<a href="#ftn.idp42416208" class="footnote" name="idp42416208"><sup class="footnote">[205]</sup></a>
10700 Eminem has just been sued for <span class="quote">«<span class="quote">sampling</span>»</span> someone else's
10701 music.<a href="#ftn.idp42423328" class="footnote" name="idp42423328"><sup class="footnote">[206]</sup></a>
10702 The story about Bob Dylan <span class="quote">«<span class="quote">stealing</span>»</span> from a Japanese author has just
10703 finished making the rounds.<a href="#ftn.idp42425952" class="footnote" name="idp42425952"><sup class="footnote">[207]</sup></a>
10704 An insider from Hollywood&#8212;who insists he must remain
10705 anonymous&#8212;reports <span class="quote">«<span class="quote">an amazing conversation with these studio
10706 guys. They've got extraordinary [old] content that they'd love to use
10707 but can't because they can't begin to clear the rights. They've got
10708 scores of kids who could do amazing things with the content, but it
10709 would take scores of lawyers to clean it first.</span>»</span> Congressmen are
10710 talking about deputizing computer viruses to bring down computers
10711 thought to violate the law. Universities are threatening expulsion for
10712 kids who use a computer to share content.
10713 </p><a class="indexterm" name="idp42429568"></a><a class="indexterm" name="idp42430352"></a><a class="indexterm" name="idp42431168"></a><a class="indexterm" name="idp42431952"></a><a class="indexterm" name="idp42432768"></a><a class="indexterm" name="idp42433584"></a><a class="indexterm" name="idp42434400"></a><p>
10714 Yet on the other side of the Atlantic, the BBC has just announced
10715 that it will build a <span class="quote">«<span class="quote">Creative Archive,</span>»</span> from which British citizens can
10716 download BBC content, and rip, mix, and burn it.<a href="#ftn.idp42436352" class="footnote" name="idp42436352"><sup class="footnote">[208]</sup></a>
10717 And in Brazil, the culture minister, Gilberto Gil, himself a folk hero
10718 of Brazilian music, has joined with Creative Commons to release
10719 content and free licenses in that Latin American
10720 country.<a href="#ftn.idp42438608" class="footnote" name="idp42438608"><sup class="footnote">[209]</sup></a>
10721
10722 I've told a dark story. The truth is more mixed. A technology has
10723 given us a new freedom. Slowly, some begin to understand that this
10724 freedom need not mean anarchy. We can carry a free culture into the
10725 twenty-first century, without artists losing and without the potential of
10726 digital technology being destroyed. It will take some thought, and
10727 more importantly, it will take some will to transform the RCAs of our
10728 day into the Causbys.
10729 </p><p>
10730 Common sense must revolt. It must act to free culture. Soon, if this
10731 potential is ever to be realized.
10732
10733
10734
10735 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp42208704" class="footnote"><p><a href="#idp42208704" class="para"><sup class="para">[195] </sup></a>
10736  Commission on Intellectual Property Rights, <span class="quote">«<span class="quote">Final Report: Integrating
10737 Intellectual Property Rights and Development Policy</span>»</span> (London, 2002),
10738 available at
10739 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #55</a>. According to a World Health Organization press
10740                 release
10741 issued 9 July 2002, only 230,000 of the 6 million who need drugs in
10742 the developing world receive them&#8212;and half of them are in Brazil.
10743 </p></div><div id="ftn.idp42223104" class="footnote"><p><a href="#idp42223104" class="para"><sup class="para">[196] </sup></a>
10744
10745 See Peter Drahos with John Braithwaite, <em class="citetitle">Information Feudalism: Who
10746 Owns the Knowledge Economy?</em> (New York: The New Press, 2003), 37.
10747 <a class="indexterm" name="idp42224528"></a>
10748 <a class="indexterm" name="idp42225312"></a>
10749 </p></div><div id="ftn.idp41776880" class="footnote"><p><a href="#idp41776880" class="para"><sup class="para">[197] </sup></a>
10750
10751 International Intellectual Property Institute (IIPI), <em class="citetitle">Patent
10752 Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
10753 Africa, a Report Prepared for the World Intellectual Property
10754 Organization</em> (Washington, D.C., 2000), 14, available at
10755 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #56</a>. For a
10756 firsthand account of the struggle over South Africa, see Hearing
10757 Before the Subcommittee on Criminal Justice, Drug Policy, and Human
10758 Resources, House Committee on Government Reform, H. Rep., 1st sess.,
10759 Ser. No. 106-126 (22 July 1999), 150&#8211;57 (statement of James
10760 Love).
10761 </p></div><div id="ftn.idp42230240" class="footnote"><p><a href="#idp42230240" class="para"><sup class="para">[198] </sup></a>
10762
10763 International Intellectual Property Institute (IIPI), <em class="citetitle">Patent
10764 Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
10765 Africa, a Report Prepared for the World Intellectual Property
10766 Organization</em> (Washington, D.C., 2000), 15.  </p></div><div id="ftn.idp42238000" class="footnote"><p><a href="#idp42238000" class="para"><sup class="para">[199] </sup></a>
10767
10768 See Sabin Russell, <span class="quote">«<span class="quote">New Crusade to Lower AIDS Drug Costs: Africa's
10769 Needs at Odds with Firms' Profit Motive,</span>»</span> <em class="citetitle">San Francisco Chronicle</em>, 24
10770 May 1999, A1, available at
10771 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #57</a>
10772 (<span class="quote">«<span class="quote">compulsory licenses and gray markets pose a threat to the entire
10773 system of intellectual property protection</span>»</span>); Robert Weissman, <span class="quote">«<span class="quote">AIDS
10774 and Developing Countries: Democratizing Access to Essential
10775 Medicines,</span>»</span> <em class="citetitle">Foreign Policy in Focus</em> 4:23 (August 1999), available at
10776 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #58</a>
10777 (describing U.S. policy); John A. Harrelson, <span class="quote">«<span class="quote">TRIPS, Pharmaceutical
10778 Patents, and the HIV/AIDS Crisis: Finding the Proper Balance Between
10779 Intellectual Property Rights and Compassion, a Synopsis,</span>»</span> <em class="citetitle">Widener Law
10780 Symposium Journal</em> (Spring 2001): 175.
10781
10782 </p></div><div id="ftn.idp42294304" class="footnote"><p><a href="#idp42294304" class="para"><sup class="para">[200] </sup></a>
10783  Jonathan Krim, <span class="quote">«<span class="quote">The Quiet War over Open-Source,</span>»</span> <em class="citetitle">Washington Post</em>,
10784 August 2003, E1, available at
10785 <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
10786 Shift on <span class="quote">&#8216;<span class="quote">Open Source</span>&#8217;</span> Meeting Spurs Stir,</span>»</span> <em class="citetitle">National Journal's Technology
10787 Daily</em>, 19 August 2003, available at
10788 <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
10789 Opposes <span class="quote">&#8216;<span class="quote">Open Source</span>&#8217;</span> Talks at WIPO,</span>»</span> <em class="citetitle">National Journal's Technology
10790 Daily</em>, 19 August 2003, available at
10791 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #61</a>.
10792 </p></div><div id="ftn.idp42308688" class="footnote"><p><a href="#idp42308688" class="para"><sup class="para">[201] </sup></a>
10793  I should disclose that I was one of the people who asked WIPO for the
10794 meeting.
10795 </p></div><div id="ftn.idp42330624" class="footnote"><p><a href="#idp42330624" class="para"><sup class="para">[202] </sup></a>
10796
10797 Microsoft's position about free and open source software is more
10798 sophisticated.  As it has repeatedly asserted, it has no problem with
10799 <span class="quote">«<span class="quote">open source</span>»</span> software or software in the public domain. Microsoft's
10800 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>
10801 license, meaning a license that requires the licensee to adopt the
10802 same terms on any derivative work. See Bradford L. Smith, <span class="quote">«<span class="quote">The Future
10803 of Software: Enabling the Marketplace to Decide,</span>»</span> <em class="citetitle">Government Policy
10804 Toward Open Source Software</em> (Washington, D.C.: AEI-Brookings Joint
10805 Center for Regulatory Studies, American Enterprise Institute for
10806 Public Policy Research, 2002), 69, available at
10807 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #62</a>. See also
10808 Craig Mundie, Microsoft senior vice president, <em class="citetitle">The Commercial Software
10809 Model</em>, discussion at New York University Stern School of Business (3
10810 May 2001), available at
10811 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #63</a>.
10812 </p></div><div id="ftn.idp42349296" class="footnote"><p><a href="#idp42349296" class="para"><sup class="para">[203] </sup></a>
10813
10814 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>.
10815 </p></div><div id="ftn.idp42382960" class="footnote"><p><a href="#idp42382960" class="para"><sup class="para">[204] </sup></a>
10816
10817 See Drahos with Braithwaite, <em class="citetitle">Information Feudalism</em>, 210&#8211;20.
10818 <a class="indexterm" name="idp42230368"></a>
10819 </p></div><div id="ftn.idp42416208" class="footnote"><p><a href="#idp42416208" class="para"><sup class="para">[205] </sup></a>
10820
10821 John Borland, <span class="quote">«<span class="quote">RIAA Sues 261 File Swappers,</span>»</span> CNET News.com, September
10822 2003, available at
10823 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #65</a>; Paul
10824 R. La Monica, <span class="quote">«<span class="quote">Music Industry Sues Swappers,</span>»</span> CNN/Money, 8 September
10825 2003, available at
10826 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #66</a>; Soni
10827 Sangha and Phyllis Furman with Robert Gearty, <span class="quote">«<span class="quote">Sued for a Song,
10828 N.Y.C. 12-Yr-Old Among 261 Cited as Sharers,</span>»</span> <em class="citetitle">New York Daily News</em>, 9
10829 September 2003, 3; Frank Ahrens, <span class="quote">«<span class="quote">RIAA's Lawsuits Meet Surprised
10830 Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among
10831 Defendants,</span>»</span> <em class="citetitle">Washington Post</em>, 10 September 2003, E1; Katie Dean,
10832 <span class="quote">«<span class="quote">Schoolgirl Settles with RIAA,</span>»</span> <em class="citetitle">Wired News</em>, 10 September 2003,
10833 available at
10834 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #67</a>.
10835 </p></div><div id="ftn.idp42423328" class="footnote"><p><a href="#idp42423328" class="para"><sup class="para">[206] </sup></a>
10836
10837 Jon Wiederhorn, <span class="quote">«<span class="quote">Eminem Gets Sued &#8230; by a Little Old Lady,</span>»</span>
10838 mtv.com, 17 September 2003, available at
10839 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #68</a>.
10840 </p></div><div id="ftn.idp42425952" class="footnote"><p><a href="#idp42425952" class="para"><sup class="para">[207] </sup></a>
10841
10842 Kenji Hall, Associated Press, <span class="quote">«<span class="quote">Japanese Book May Be Inspiration for
10843 Dylan Songs,</span>»</span> Kansascity.com, 9 July 2003, available at
10844 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #69</a>.
10845
10846 </p></div><div id="ftn.idp42436352" class="footnote"><p><a href="#idp42436352" class="para"><sup class="para">[208] </sup></a>
10847  <span class="quote">«<span class="quote">BBC Plans to Open Up Its Archive to the Public,</span>»</span> BBC press release,
10848 24 August 2003, available at
10849 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #70</a>.
10850 </p></div><div id="ftn.idp42438608" class="footnote"><p><a href="#idp42438608" class="para"><sup class="para">[209] </sup></a>
10851
10852 <span class="quote">«<span class="quote">Creative Commons and Brazil,</span>»</span> Creative Commons Weblog, 6 August 2003,
10853 available at
10854 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #71</a>.
10855 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-afterword"></a>Chapter . Afterword</h1></div></div></div><a class="indexterm" name="idxcopyrightvoluntaryreformeffortson"></a><p>
10856
10857
10858 <span class="strong"><strong>At least some</strong></span> who have read this
10859 far will agree with me that something must be done to change where we
10860 are heading. The balance of this book maps what might be done.
10861 </p><p>
10862 I divide this map into two parts: that which anyone can do now,
10863 and that which requires the help of lawmakers. If there is one lesson
10864 that we can draw from the history of remaking common sense, it is that
10865 it requires remaking how many people think about the very same issue.
10866 </p><p>
10867 That means this movement must begin in the streets. It must recruit a
10868 significant number of parents, teachers, librarians, creators,
10869 authors, musicians, filmmakers, scientists&#8212;all to tell this
10870 story in their own words, and to tell their neighbors why this battle
10871 is so important.
10872 </p><a class="indexterm" name="idp42448144"></a><a class="indexterm" name="idp42449424"></a><p>
10873 Once this movement has its effect in the streets, it has some hope of
10874 having an effect in Washington. We are still a democracy. What people
10875 think matters. Not as much as it should, at least when an RCA stands
10876 opposed, but still, it matters. And thus, in the second part below, I
10877 sketch changes that Congress could make to better secure a free culture.
10878 </p><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="usnow"></a>1. Us, now</h2></div></div></div><a class="indexterm" name="idxcopyrightvoluntaryreformeffortson2"></a><p>
10879 <span class="strong"><strong>Common sense</strong></span> is with the copyright
10880 warriors because the debate so far has been framed at the
10881 extremes&#8212;as a grand either/or: either property or anarchy,
10882 either total control or artists won't be paid. If that really is the
10883 choice, then the warriors should win.
10884 </p><p>
10885 The mistake here is the error of the excluded middle. There are
10886 extremes in this debate, but the extremes are not all that there
10887 is. There are those who believe in maximal copyright&#8212;<span class="quote">«<span class="quote">All Rights
10888 Reserved</span>»</span>&#8212; and those who reject copyright&#8212;<span class="quote">«<span class="quote">No Rights
10889 Reserved.</span>»</span> The <span class="quote">«<span class="quote">All Rights Reserved</span>»</span> sorts believe that you should ask
10890 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
10891 Rights Reserved</span>»</span> sorts believe you should be able to do with content
10892 as you wish, regardless of whether you have permission or not.
10893 </p><a class="indexterm" name="idxinternetdevelopmentof2"></a><a class="indexterm" name="idxinternetinitialfreecharacterof"></a><p>
10894 When the Internet was first born, its initial architecture effectively
10895 tilted in the <span class="quote">«<span class="quote">no rights reserved</span>»</span> direction. Content could be copied
10896 perfectly and cheaply; rights could not easily be controlled. Thus,
10897 regardless of anyone's desire, the effective regime of copyright under
10898 the
10899
10900
10901 original design of the Internet was <span class="quote">«<span class="quote">no rights reserved.</span>»</span> Content was
10902 <span class="quote">«<span class="quote">taken</span>»</span> regardless of the rights. Any rights were effectively
10903 unprotected.
10904 </p><p>
10905 This initial character produced a reaction (opposite, but not quite
10906 equal) by copyright owners. That reaction has been the topic of this
10907 book. Through legislation, litigation, and changes to the network's
10908 design, copyright holders have been able to change the essential
10909 character of the environment of the original Internet. If the original
10910 architecture made the effective default <span class="quote">«<span class="quote">no rights reserved,</span>»</span> the
10911 future architecture will make the effective default <span class="quote">«<span class="quote">all rights
10912 reserved.</span>»</span> The architecture and law that surround the Internet's
10913 design will increasingly produce an environment where all use of
10914 content requires permission.  The <span class="quote">«<span class="quote">cut and paste</span>»</span> world that defines
10915 the Internet today will become a <span class="quote">«<span class="quote">get permission to cut and paste</span>»</span>
10916 world that is a creator's nightmare.
10917 </p><a class="indexterm" name="idp42468064"></a><a class="indexterm" name="idp42469456"></a><p>
10918 What's needed is a way to say something in the middle&#8212;neither
10919 <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
10920 reserved</span>»</span>&#8212; and thus a way to respect copyrights but enable
10921 creators to free content as they see fit. In other words, we need a
10922 way to restore a set of freedoms that we could just take for granted
10923 before.
10924 </p><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="examples"></a>1.1. Rebuilding Freedoms Previously Presumed: Examples</h3></div></div></div><a class="indexterm" name="idxfreeculturerestorationeffortsonpreviousaspectsof"></a><a class="indexterm" name="idxbrowsing"></a><a class="indexterm" name="idxprivacyrights2"></a><p>
10925 If you step back from the battle I've been describing here, you will
10926 recognize this problem from other contexts. Think about
10927 privacy. Before the Internet, most of us didn't have to worry much
10928 about data about our lives that we broadcast to the world. If you
10929 walked into a bookstore and browsed through some of the works of Karl
10930 Marx, you didn't need to worry about explaining your browsing habits
10931 to your neighbors or boss. The <span class="quote">«<span class="quote">privacy</span>»</span> of your browsing habits was
10932 assured.
10933 </p><p>
10934 What made it assured?
10935 </p><p>
10936 Well, if we think in terms of the modalities I described in chapter
10937 <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>, your
10938 privacy was assured because of an inefficient architecture for
10939 gathering data and hence a market constraint (cost) on anyone who
10940 wanted to gather that data. If you were a suspected spy for North
10941 Korea, working for the CIA, no doubt your privacy would not be
10942 assured.  But that's because the CIA would (we hope) find it valuable
10943 enough to spend the thousands required to track you. But for most of
10944 us (again, we can hope), spying doesn't pay. The highly inefficient
10945 architecture of real space means we all enjoy a fairly robust amount
10946 of privacy. That privacy is guaranteed to us by friction. Not by law
10947 (there is no law protecting <span class="quote">«<span class="quote">privacy</span>»</span> in public places), and in many
10948 places, not by norms (snooping and gossip are just fun), but instead,
10949 by the costs that friction imposes on anyone who would want to spy.
10950 </p><a class="indexterm" name="idxamazon"></a><a class="indexterm" name="idp42485024"></a><a class="indexterm" name="idxinternetprivacyprotectionon"></a><p>
10951 Enter the Internet, where the cost of tracking browsing in particular
10952 has become quite tiny. If you're a customer at Amazon, then as you
10953 browse the pages, Amazon collects the data about what you've looked
10954 at. You know this because at the side of the page, there's a list of
10955 <span class="quote">«<span class="quote">recently viewed</span>»</span> pages. Now, because of the architecture of the Net
10956 and the function of cookies on the Net, it is easier to collect the
10957 data than not. The friction has disappeared, and hence any <span class="quote">«<span class="quote">privacy</span>»</span>
10958 protected by the friction disappears, too.
10959 </p><a class="indexterm" name="idp42489536"></a><p>
10960 Amazon, of course, is not the problem. But we might begin to worry
10961 about libraries. If you're one of those crazy lefties who thinks that
10962 people should have the <span class="quote">«<span class="quote">right</span>»</span> to browse in a library without the
10963 government knowing which books you look at (I'm one of those lefties,
10964 too), then this change in the technology of monitoring might concern
10965 you. If it becomes simple to gather and sort who does what in
10966 electronic spaces, then the friction-induced privacy of yesterday
10967 disappears.
10968 </p><a class="indexterm" name="idp42491920"></a><a class="indexterm" name="idp42493168"></a><p>
10969 It is this reality that explains the push of many to define <span class="quote">«<span class="quote">privacy</span>»</span>
10970 on the Internet. It is the recognition that technology can remove what
10971 friction before gave us that leads many to push for laws to do what
10972 friction did.<a href="#ftn.idp42495408" class="footnote" name="idp42495408"><sup class="footnote">[210]</sup></a>
10973 And whether you're in favor of those laws or not, it is the pattern
10974 that is important here. We must take affirmative steps to secure a
10975
10976
10977 kind of freedom that was passively provided before. A change in
10978 technology now forces those who believe in privacy to affirmatively
10979 act where, before, privacy was given by default.
10980 </p><a class="indexterm" name="idp42499424"></a><a class="indexterm" name="idp42500704"></a><a class="indexterm" name="idp42502096"></a><a class="indexterm" name="idp42502912"></a><a class="indexterm" name="idxfreesoftwareopensourcesoftwarefsoss2"></a><p>
10981 A similar story could be told about the birth of the free software
10982 movement. When computers with software were first made available
10983 commercially, the software&#8212;both the source code and the
10984 binaries&#8212; was free. You couldn't run a program written for a
10985 Data General machine on an IBM machine, so Data General and IBM didn't
10986 care much about controlling their software.
10987 </p><a class="indexterm" name="idxstallmanrichard"></a><p>
10988 That was the world Richard Stallman was born into, and while he was a
10989 researcher at MIT, he grew to love the community that developed when
10990 one was free to explore and tinker with the software that ran on
10991 machines. Being a smart sort himself, and a talented programmer,
10992 Stallman grew to depend upon the freedom to add to or modify other
10993 people's work.
10994 </p><p>
10995 In an academic setting, at least, that's not a terribly radical
10996 idea. In a math department, anyone would be free to tinker with a
10997 proof that someone offered. If you thought you had a better way to
10998 prove a theorem, you could take what someone else did and change
10999 it. In a classics department, if you believed a colleague's
11000 translation of a recently discovered text was flawed, you were free to
11001 improve it. Thus, to Stallman, it seemed obvious that you should be
11002 free to tinker with and improve the code that ran a machine. This,
11003 too, was knowledge. Why shouldn't it be open for criticism like
11004 anything else?
11005 </p><a class="indexterm" name="idxproprietarycode"></a><p>
11006 No one answered that question. Instead, the architecture of revenue
11007 for computing changed. As it became possible to import programs from
11008 one system to another, it became economically attractive (at least in
11009 the view of some) to hide the code of your program. So, too, as
11010 companies started selling peripherals for mainframe systems. If I
11011 could just take your printer driver and copy it, then that would make
11012 it easier for me to sell a printer to the market than it was for you.
11013 </p><p>
11014 Thus, the practice of proprietary code began to spread, and by the
11015 early 1980s, Stallman found himself surrounded by proprietary code.
11016
11017 The world of free software had been erased by a change in the
11018 economics of computing. And as he believed, if he did nothing about
11019 it, then the freedom to change and share software would be
11020 fundamentally weakened.
11021 </p><a class="indexterm" name="idp42512848"></a><a class="indexterm" name="idp42514080"></a><p>
11022 Therefore, in 1984, Stallman began a project to build a free operating
11023 system, so that at least a strain of free software would survive. That
11024 was the birth of the GNU project, into which Linus Torvalds's <span class="quote">«<span class="quote">Linux</span>»</span>
11025 kernel was added to produce the GNU/Linux operating system.
11026 <a class="indexterm" name="idp42515872"></a>
11027 <a class="indexterm" name="idp42516704"></a>
11028 </p><p>
11029 Stallman's technique was to use copyright law to build a world of
11030 software that must be kept free. Software licensed under the Free
11031 Software Foundation's GPL cannot be modified and distributed unless
11032 the source code for that software is made available as well. Thus,
11033 anyone building upon GPL'd software would have to make their buildings
11034 free as well. This would assure, Stallman believed, that an ecology of
11035 code would develop that remained free for others to build upon. His
11036 fundamental goal was freedom; innovative creative code was a
11037 byproduct.
11038 </p><p>
11039 Stallman was thus doing for software what privacy advocates now
11040 do for privacy. He was seeking a way to rebuild a kind of freedom that
11041 was taken for granted before. Through the affirmative use of licenses
11042 that bind copyrighted code, Stallman was affirmatively reclaiming a
11043 space where free software would survive. He was actively protecting
11044 what before had been passively guaranteed.
11045 </p><a class="indexterm" name="idp42519376"></a><a class="indexterm" name="idp42520768"></a><a class="indexterm" name="idxacademicjournals"></a><a class="indexterm" name="idxscientificjournals"></a><p>
11046 Finally, consider a very recent example that more directly resonates
11047 with the story of this book. This is the shift in the way academic and
11048 scientific journals are produced.
11049 </p><a class="indexterm" name="idxlexisandwestlaw"></a><a class="indexterm" name="idxlawdatabasesofcasereportsin"></a><a class="indexterm" name="idp42529088"></a><a class="indexterm" name="idp42530192"></a><p>
11050 As digital technologies develop, it is becoming obvious to many that
11051 printing thousands of copies of journals every month and sending them
11052 to libraries is perhaps not the most efficient way to distribute
11053 knowledge. Instead, journals are increasingly becoming electronic, and
11054 libraries and their users are given access to these electronic
11055 journals through password-protected sites. Something similar to this
11056 has been happening in law for almost thirty years: Lexis and Westlaw
11057 have had electronic versions of case reports available to subscribers
11058 to their service.  Although a Supreme Court opinion is not
11059 copyrighted, and anyone is free to go to a library and read it, Lexis
11060 and Westlaw are also free
11061
11062 to charge users for the privilege of gaining access to that Supreme
11063 Court opinion through their respective services.
11064 </p><a class="indexterm" name="idp42532848"></a><a class="indexterm" name="idxpublicdomainlicensesystemforrebuildingof"></a><p>
11065 There's nothing wrong in general with this, and indeed, the ability to
11066 charge for access to even public domain materials is a good incentive
11067 for people to develop new and innovative ways to spread knowledge.
11068 The law has agreed, which is why Lexis and Westlaw have been allowed
11069 to flourish. And if there's nothing wrong with selling the public
11070 domain, then there could be nothing wrong, in principle, with selling
11071 access to material that is not in the public domain.
11072 </p><a class="indexterm" name="idp42536800"></a><a class="indexterm" name="idp42538048"></a><p>
11073 But what if the only way to get access to social and scientific data
11074 was through proprietary services? What if no one had the ability to
11075 browse this data except by paying for a subscription?
11076 </p><a class="indexterm" name="idxlibrariesjournalsin"></a><p>
11077 As many are beginning to notice, this is increasingly the reality with
11078 scientific journals. When these journals were distributed in paper
11079 form, libraries could make the journals available to anyone who had
11080 access to the library. Thus, patients with cancer could become cancer
11081 experts because the library gave them access. Or patients trying to
11082 understand the risks of a certain treatment could research those risks
11083 by reading all available articles about that treatment. This freedom
11084 was therefore a function of the institution of libraries (norms) and
11085 the technology of paper journals (architecture)&#8212;namely, that it
11086 was very hard to control access to a paper journal.
11087 </p><p>
11088 As journals become electronic, however, the publishers are demanding
11089 that libraries not give the general public access to the
11090 journals. This means that the freedoms provided by print journals in
11091 public libraries begin to disappear. Thus, as with privacy and with
11092 software, a changing technology and market shrink a freedom taken for
11093 granted before.
11094 </p><a class="indexterm" name="idp42543696"></a><a class="indexterm" name="idp42544448"></a><p>
11095 This shrinking freedom has led many to take affirmative steps to
11096 restore the freedom that has been lost. The Public Library of Science
11097 (PLoS), for example, is a nonprofit corporation dedicated to making
11098 scientific research available to anyone with a Web connection. Authors
11099
11100 of scientific work submit that work to the Public Library of Science.
11101 That work is then subject to peer review. If accepted, the work is
11102 then deposited in a public, electronic archive and made permanently
11103 available for free. PLoS also sells a print version of its work, but
11104 the copyright for the print journal does not inhibit the right of
11105 anyone to redistribute the work for free.
11106 </p><a class="indexterm" name="idp42546672"></a><p>
11107 This is one of many such efforts to restore a freedom taken for
11108 granted before, but now threatened by changing technology and markets.
11109 There's no doubt that this alternative competes with the traditional
11110 publishers and their efforts to make money from the exclusive
11111 distribution of content. But competition in our tradition is
11112 presumptively a good&#8212;especially when it helps spread knowledge
11113 and science.
11114 </p><a class="indexterm" name="idp42548208"></a><a class="indexterm" name="idp42550192"></a><a class="indexterm" name="idp42551440"></a></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="oneidea"></a>1.2. Rebuilding Free Culture: One Idea</h3></div></div></div><a class="indexterm" name="idxcreativecommons"></a><p>
11115 The same strategy could be applied to culture, as a response to the
11116 increasing control effected through law and technology.
11117 </p><a class="indexterm" name="idp42556032"></a><p>
11118 Enter the Creative Commons. The Creative Commons is a nonprofit
11119 corporation established in Massachusetts, but with its home at
11120 Stanford University. Its aim is to build a layer of
11121 <span class="emphasis"><em>reasonable</em></span> copyright on top of the extremes that
11122 now reign. It does this by making it easy for people to build upon
11123 other people's work, by making it simple for creators to express the
11124 freedom for others to take and build upon their work. Simple tags,
11125 tied to human-readable descriptions, tied to bulletproof licenses,
11126 make this possible.
11127 </p><p>
11128 <span class="emphasis"><em>Simple</em></span>&#8212;which means without a middleman, or
11129 without a lawyer.  By developing a free set of licenses that people
11130 can attach to their content, Creative Commons aims to mark a range of
11131 content that can easily, and reliably, be built upon. These tags are
11132 then linked to machine-readable versions of the license that enable
11133 computers automatically to identify content that can easily be
11134 shared. These three expressions together&#8212;a legal license, a
11135 human-readable description, and
11136
11137 machine-readable tags&#8212;constitute a Creative Commons license. A
11138 Creative Commons license constitutes a grant of freedom to anyone who
11139 accesses the license, and more importantly, an expression of the ideal
11140 that the person associated with the license believes in something
11141 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
11142 CC mark, which does not mean that copyright is waived, but that
11143 certain freedoms are given.
11144 </p><p>
11145 These freedoms are beyond the freedoms promised by fair use. Their
11146 precise contours depend upon the choices the creator makes. The
11147 creator can choose a license that permits any use, so long as
11148 attribution is given. She can choose a license that permits only
11149 noncommercial use.  She can choose a license that permits any use so
11150 long as the same freedoms are given to other uses (<span class="quote">«<span class="quote">share and share
11151 alike</span>»</span>). Or any use so long as no derivative use is made. Or any use
11152 at all within developing nations. Or any sampling use, so long as full
11153 copies are not made. Or lastly, any educational use.
11154 </p><p>
11155 These choices thus establish a range of freedoms beyond the default of
11156 copyright law. They also enable freedoms that go beyond traditional
11157 fair use. And most importantly, they express these freedoms in a way
11158 that subsequent users can use and rely upon without the need to hire a
11159 lawyer. Creative Commons thus aims to build a layer of content,
11160 governed by a layer of reasonable copyright law, that others can build
11161 upon. Voluntary choice of individuals and creators will make this
11162 content available. And that content will in turn enable us to rebuild
11163 a public domain.
11164 </p><a class="indexterm" name="idp42563824"></a><p>
11165 This is just one project among many within the Creative Commons.  And
11166 of course, Creative Commons is not the only organization pursuing such
11167 freedoms. But the point that distinguishes the Creative Commons from
11168 many is that we are not interested only in talking about a public
11169 domain or in getting legislators to help build a public domain. Our
11170 aim is to build a movement of consumers and producers
11171
11172 of content (<span class="quote">«<span class="quote">content conducers,</span>»</span> as attorney Mia Garlick calls them)
11173 who help build the public domain and, by their work, demonstrate the
11174 importance of the public domain to other creativity.
11175 </p><a class="indexterm" name="idp42566288"></a><p>
11176 The aim is not to fight the <span class="quote">«<span class="quote">All Rights Reserved</span>»</span> sorts. The aim is to
11177 complement them. The problems that the law creates for us as a culture
11178 are produced by insane and unintended consequences of laws written
11179 centuries ago, applied to a technology that only Jefferson could have
11180 imagined. The rules may well have made sense against a background of
11181 technologies from centuries ago, but they do not make sense against
11182 the background of digital technologies. New rules&#8212;with different
11183 freedoms, expressed in ways so that humans without lawyers can use
11184 them&#8212;are needed. Creative Commons gives people a way effectively
11185 to begin to build those rules.
11186 </p><a class="indexterm" name="idxbooksfreeonline2"></a><p>
11187 Why would creators participate in giving up total control? Some
11188 participate to better spread their content. Cory Doctorow, for
11189 example, is a science fiction author. His first novel, <em class="citetitle">Down and Out in
11190 the Magic Kingdom</em>, was released on-line and for free, under a Creative
11191 Commons license, on the same day that it went on sale in bookstores.
11192 </p><p>
11193 Why would a publisher ever agree to this? I suspect his publisher
11194 reasoned like this: There are two groups of people out there: (1)
11195 those who will buy Cory's book whether or not it's on the Internet,
11196 and (2) those who may never hear of Cory's book, if it isn't made
11197 available for free on the Internet. Some part of (1) will download
11198 Cory's book instead of buying it. Call them bad-(1)s. Some part of (2)
11199 will download Cory's book, like it, and then decide to buy it. Call
11200 them (2)-goods.  If there are more (2)-goods than bad-(1)s, the
11201 strategy of releasing Cory's book free on-line will probably
11202 <span class="emphasis"><em>increase</em></span> sales of Cory's book.
11203 </p><p>
11204 Indeed, the experience of his publisher clearly supports that
11205 conclusion.  The book's first printing was exhausted months before the
11206 publisher had expected. This first novel of a science fiction author
11207 was a total success.
11208 </p><a class="indexterm" name="idp42573600"></a><a class="indexterm" name="idp42574416"></a><p>
11209 The idea that free content might increase the value of nonfree content
11210 was confirmed by the experience of another author. Peter Wayner,
11211
11212 who wrote a book about the free software movement titled <em class="citetitle">Free for All</em>,
11213 made an electronic version of his book free on-line under a Creative
11214 Commons license after the book went out of print. He then monitored
11215 used book store prices for the book. As predicted, as the number of
11216 downloads increased, the used book price for his book increased, as
11217 well.
11218 </p><a class="indexterm" name="idp42576864"></a><a class="indexterm" name="idp42578176"></a><a class="indexterm" name="idp42578992"></a><a class="indexterm" name="idp42579808"></a><a class="indexterm" name="idp42581136"></a><p>
11219 These are examples of using the Commons to better spread proprietary
11220 content. I believe that is a wonderful and common use of the
11221 Commons. There are others who use Creative Commons licenses for other
11222 reasons. Many who use the <span class="quote">«<span class="quote">sampling license</span>»</span> do so because anything
11223 else would be hypocritical. The sampling license says that others are
11224 free, for commercial or noncommercial purposes, to sample content from
11225 the licensed work; they are just not free to make full copies of the
11226 licensed work available to others. This is consistent with their own
11227 art&#8212;they, too, sample from others. Because the
11228 <span class="emphasis"><em>legal</em></span> costs of sampling are so high (Walter
11229 Leaphart, manager of the rap group Public Enemy, which was born
11230 sampling the music of others, has stated that he does not <span class="quote">«<span class="quote">allow</span>»</span>
11231 Public Enemy to sample anymore, because the legal costs are so
11232 high<a href="#ftn.idp42584352" class="footnote" name="idp42584352"><sup class="footnote">[211]</sup></a>),
11233 these artists release into the creative environment content
11234 that others can build upon, so that their form of creativity might grow.
11235 </p><p>
11236 Finally, there are many who mark their content with a Creative Commons
11237 license just because they want to express to others the importance of
11238 balance in this debate. If you just go along with the system as it is,
11239 you are effectively saying you believe in the <span class="quote">«<span class="quote">All Rights Reserved</span>»</span>
11240 model. Good for you, but many do not. Many believe that however
11241 appropriate that rule is for Hollywood and freaks, it is not an
11242 appropriate description of how most creators view the rights
11243 associated with their content. The Creative Commons license expresses
11244 this notion of <span class="quote">«<span class="quote">Some Rights Reserved,</span>»</span> and gives many the chance to
11245 say it to others.
11246 </p><p>
11247 In the first six months of the Creative Commons experiment, over
11248 1 million objects were licensed with these free-culture licenses. The next
11249 step is partnerships with middleware content providers to help them
11250 build into their technologies simple ways for users to mark their content
11251
11252
11253 with Creative Commons freedoms. Then the next step is to watch and
11254 celebrate creators who build content based upon content set free.
11255 </p><p>
11256 These are first steps to rebuilding a public domain. They are not
11257 mere arguments; they are action. Building a public domain is the first
11258 step to showing people how important that domain is to creativity and
11259 innovation. Creative Commons relies upon voluntary steps to achieve
11260 this rebuilding. They will lead to a world in which more than voluntary
11261 steps are possible.
11262 </p><p>
11263 Creative Commons is just one example of voluntary efforts by
11264 individuals and creators to change the mix of rights that now govern
11265 the creative field. The project does not compete with copyright; it
11266 complements it. Its aim is not to defeat the rights of authors, but to
11267 make it easier for authors and creators to exercise their rights more
11268 flexibly and cheaply. That difference, we believe, will enable
11269 creativity to spread more easily.
11270 </p><a class="indexterm" name="idp42591280"></a><a class="indexterm" name="idp42592688"></a></div></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="themsoon"></a>2. Them, soon</h2></div></div></div><p>
11271 <span class="strong"><strong>We will</strong></span> not reclaim a free culture
11272 by individual action alone. It will also take important reforms of
11273 laws. We have a long way to go before the politicians will listen to
11274 these ideas and implement these reforms.  But that also means that we
11275 have time to build awareness around the changes that we need.
11276 </p><p>
11277 In this chapter, I outline five kinds of changes: four that are general,
11278 and one that's specific to the most heated battle of the day, music. Each
11279 is a step, not an end. But any of these steps would carry us a long way
11280 to our end.
11281 </p><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="formalities"></a>2.1. 1. More Formalities</h3></div></div></div><p>
11282 If you buy a house, you have to record the sale in a deed. If you buy land
11283 upon which to build a house, you have to record the purchase in a deed.
11284 If you buy a car, you get a bill of sale and register the car. If you buy an
11285 airplane ticket, it has your name on it.
11286 </p><p>
11287
11288 These are all formalities associated with property. They are
11289 requirements that we all must bear if we want our property to be
11290 protected.
11291 </p><p>
11292 In contrast, under current copyright law, you automatically get a
11293 copyright, regardless of whether you comply with any formality. You
11294 don't have to register. You don't even have to mark your content. The
11295 default is control, and <span class="quote">«<span class="quote">formalities</span>»</span> are banished.
11296 </p><p>
11297 Why?
11298 </p><p>
11299 As I suggested in chapter <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>, the motivation to abolish formalities was a
11300 good one. In the world before digital technologies, formalities
11301 imposed a burden on copyright holders without much benefit. Thus, it
11302 was progress when the law relaxed the formal requirements that a
11303 copyright owner must bear to protect and secure his work. Those
11304 formalities were getting in the way.
11305 </p><p>
11306 But the Internet changes all this. Formalities today need not be a
11307 burden. Rather, the world without formalities is the world that
11308 burdens creativity. Today, there is no simple way to know who owns
11309 what, or with whom one must deal in order to use or build upon the
11310 creative work of others. There are no records, there is no system to
11311 trace&#8212; there is no simple way to know how to get permission. Yet
11312 given the massive increase in the scope of copyright's rule, getting
11313 permission is a necessary step for any work that builds upon our
11314 past. And thus, the <span class="emphasis"><em>lack</em></span> of formalities forces
11315 many into silence where they otherwise could speak.
11316 </p><p>
11317 The law should therefore change this requirement<a href="#ftn.idp42605328" class="footnote" name="idp42605328"><sup class="footnote">[212]</sup></a>&#8212;but it
11318 should not change it by going back to the old, broken system. We
11319 should require formalities, but we should establish a system that will
11320 create the incentives to minimize the burden of these formalities.
11321 </p><p>
11322 The important formalities are three: marking copyrighted work,
11323 registering copyrights, and renewing the claim to
11324 copyright. Traditionally, the first of these three was something the
11325 copyright owner did; the second two were something the government
11326 did. But a revised system of formalities would banish the government
11327 from the process, except for the sole purpose of approving standards
11328 developed by others.
11329 </p><div class="section"><div class="titlepage"><div><div><h4 class="title"><a name="registration"></a>2.1.1. Registration and renewal</h4></div></div></div><p>
11330 Under the old system, a copyright owner had to file a registration
11331 with the Copyright Office to register or renew a copyright. When
11332 filing that registration, the copyright owner paid a fee. As with most
11333 government agencies, the Copyright Office had little incentive to
11334 minimize the burden of registration; it also had little incentive to
11335 minimize the fee.  And as the Copyright Office is not a main target of
11336 government policymaking, the office has historically been terribly
11337 underfunded. Thus, when people who know something about the process
11338 hear this idea about formalities, their first reaction is
11339 panic&#8212;nothing could be worse than forcing people to deal with
11340 the mess that is the Copyright Office.
11341 </p><p>
11342 Yet it is always astonishing to me that we, who come from a tradition
11343 of extraordinary innovation in governmental design, can no longer
11344 think innovatively about how governmental functions can be designed.
11345 Just because there is a public purpose to a government role, it
11346 doesn't follow that the government must actually administer the
11347 role. Instead, we should be creating incentives for private parties to
11348 serve the public, subject to standards that the government sets.
11349 </p><a class="indexterm" name="idp42609680"></a><a class="indexterm" name="idp42611792"></a><a class="indexterm" name="idp42612912"></a><p>
11350 In the context of registration, one obvious model is the Internet.
11351 There are at least 32 million Web sites registered around the world.
11352 Domain name owners for these Web sites have to pay a fee to keep their
11353 registration alive. In the main top-level domains (.com, .org, .net),
11354 there is a central registry. The actual registrations are, however,
11355 performed by many competing registrars. That competition drives the
11356 cost of registering down, and more importantly, it drives the ease
11357 with which registration occurs up.
11358 </p><p>
11359 We should adopt a similar model for the registration and renewal of
11360 copyrights. The Copyright Office may well serve as the central
11361 registry, but it should not be in the registrar business. Instead, it
11362 should establish a database, and a set of standards for registrars. It
11363 should approve registrars that meet its standards. Those registrars
11364 would then compete with one another to deliver the cheapest and
11365 simplest systems for registering and renewing copyrights. That
11366 competition would substantially lower the burden of this
11367 formality&#8212;while producing a database
11368
11369 of registrations that would facilitate the licensing of content.
11370 </p></div><div class="section"><div class="titlepage"><div><div><h4 class="title"><a name="marking"></a>2.1.2. Marking</h4></div></div></div><p>
11371 It used to be that the failure to include a copyright notice on a
11372 creative work meant that the copyright was forfeited. That was a harsh
11373 punishment for failing to comply with a regulatory rule&#8212;akin to
11374 imposing the death penalty for a parking ticket in the world of
11375 creative rights.  Here again, there is no reason that a marking
11376 requirement needs to be enforced in this way. And more importantly,
11377 there is no reason a marking requirement needs to be enforced
11378 uniformly across all media.
11379 </p><p>
11380 The aim of marking is to signal to the public that this work is
11381 copyrighted and that the author wants to enforce his rights. The mark
11382 also makes it easy to locate a copyright owner to secure permission to
11383 use the work.
11384 </p><p>
11385 One of the problems the copyright system confronted early on was
11386 that different copyrighted works had to be differently marked. It wasn't
11387 clear how or where a statue was to be marked, or a record, or a film. A
11388 new marking requirement could solve these problems by recognizing
11389 the differences in media, and by allowing the system of marking to
11390 evolve as technologies enable it to. The system could enable a special
11391 signal from the failure to mark&#8212;not the loss of the copyright, but the
11392 loss of the right to punish someone for failing to get permission first.
11393 </p><p>
11394 Let's start with the last point. If a copyright owner allows his work
11395 to be published without a copyright notice, the consequence of that
11396 failure need not be that the copyright is lost. The consequence could
11397 instead be that anyone has the right to use this work, until the
11398 copyright owner complains and demonstrates that it is his work and he
11399 doesn't give permission.<a href="#ftn.idp42619456" class="footnote" name="idp42619456"><sup class="footnote">[213]</sup></a>
11400 The meaning of an unmarked work would therefore be <span class="quote">«<span class="quote">use unless someone
11401 complains.</span>»</span> If someone does complain, then the obligation would be to
11402 stop using the work in any new
11403
11404 work from then on though no penalty would attach for existing uses.
11405 This would create a strong incentive for copyright owners to mark
11406 their work.
11407 </p><p>
11408 That in turn raises the question about how work should best be
11409 marked. Here again, the system needs to adjust as the technologies
11410 evolve. The best way to ensure that the system evolves is to limit the
11411 Copyright Office's role to that of approving standards for marking
11412 content that have been crafted elsewhere.
11413 </p><a class="indexterm" name="idp42623392"></a><p>
11414 For example, if a recording industry association devises a method for
11415 marking CDs, it would propose that to the Copyright Office. The
11416 Copyright Office would hold a hearing, at which other proposals could
11417 be made. The Copyright Office would then select the proposal that it
11418 judged preferable, and it would base that choice
11419 <span class="emphasis"><em>solely</em></span> upon the consideration of which method
11420 could best be integrated into the registration and renewal system. We
11421 would not count on the government to innovate; but we would count on
11422 the government to keep the product of innovation in line with its
11423 other important functions.
11424 </p><p>
11425 Finally, marking content clearly would simplify registration
11426 requirements.  If photographs were marked by author and year, there
11427 would be little reason not to allow a photographer to reregister, for
11428 example, all photographs taken in a particular year in one quick
11429 step. The aim of the formality is not to burden the creator; the
11430 system itself should be kept as simple as possible.
11431 </p><p>
11432 The objective of formalities is to make things clear. The existing
11433 system does nothing to make things clear. Indeed, it seems designed to
11434 make things unclear.
11435 </p><p>
11436 If formalities such as registration were reinstated, one of the most
11437 difficult aspects of relying upon the public domain would be removed.
11438 It would be simple to identify what content is presumptively free; it
11439 would be simple to identify who controls the rights for a particular
11440 kind of content; it would be simple to assert those rights, and to renew
11441 that assertion at the appropriate time.
11442 </p></div></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="shortterms"></a>2.2. 2. Shorter Terms</h3></div></div></div><p>
11443 The term of copyright has gone from fourteen years to ninety-five
11444 years for corporate authors, and life of the author plus seventy years for
11445 natural authors.
11446 </p><p>
11447 In <em class="citetitle">The Future of Ideas</em>, I proposed a seventy-five-year term,
11448 granted in five-year increments with a requirement of renewal every
11449 five years.  That seemed radical enough at the time. But after we lost
11450 <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, the proposals became even more
11451 radical. <em class="citetitle">The Economist</em> endorsed a proposal for a fourteen-year
11452 copyright term.<a href="#ftn.idp42632608" class="footnote" name="idp42632608"><sup class="footnote">[214]</sup></a>
11453 Others have proposed tying the term to the term for patents.
11454 </p><p>
11455 I agree with those who believe that we need a radical change in
11456 copyright's term. But whether fourteen years or seventy-five, there
11457 are four principles that are important to keep in mind about copyright
11458 terms.
11459 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><p>
11460
11461 <span class="emphasis"><em>Keep it short:</em></span> The term should be as long as
11462 necessary to give incentives to create, but no longer. If it were tied
11463 to very strong protections for authors (so authors were able to
11464 reclaim rights from publishers), rights to the same work (not
11465 derivative works) might be extended further. The key is not to tie the
11466 work up with legal regulations when it no longer benefits an author.
11467 </p></li><li class="listitem"><p>
11468
11469 <span class="emphasis"><em>Keep it simple:</em></span> The line between the public
11470 domain and protected content must be kept clear. Lawyers like the
11471 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
11472 <span class="quote">«<span class="quote">expression.</span>»</span>  That kind of law gives them lots of work. But our
11473 framers had a simpler idea in mind: protected versus unprotected.  The
11474 value of short terms is that there is little need to build exceptions
11475 into copyright when the term itself is kept short. A clear and active
11476 <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
11477 <span class="quote">«<span class="quote">idea/expression</span>»</span> less necessary to navigate.
11478
11479 </p></li><li class="listitem"><a class="indexterm" name="idp42643488"></a><p>
11480
11481 <span class="emphasis"><em>Keep it alive:</em></span> Copyright should have to be
11482 renewed.  Especially if the maximum term is long, the copyright owner
11483 should be required to signal periodically that he wants the protection
11484 continued. This need not be an onerous burden, but there is no reason
11485 this monopoly protection has to be granted for free. On average, it
11486 takes ninety minutes for a veteran to apply for a
11487 pension.<a href="#ftn.idp42645648" class="footnote" name="idp42645648"><sup class="footnote">[215]</sup></a>
11488 If we make veterans suffer that burden, I don't see why we couldn't
11489 require authors to spend ten minutes every fifty years to file a
11490 single form.
11491 </p></li><li class="listitem"><p>
11492
11493 <span class="emphasis"><em>Keep it prospective:</em></span> Whatever the term of
11494 copyright should be, the clearest lesson that economists teach is that
11495 a term once given should not be extended. It might have been a mistake
11496 in 1923 for the law to offer authors only a fifty-six-year term. I
11497 don't think so, but it's possible. If it was a mistake, then the
11498 consequence was that we got fewer authors to create in 1923 than we
11499 otherwise would have. But we can't correct that mistake today by
11500 increasing the term. No matter what we do today, we will not increase
11501 the number of authors who wrote in 1923. Of course, we can increase
11502 the reward that those who write now get (or alternatively, increase
11503 the copyright burden that smothers many works that are today
11504 invisible). But increasing their reward will not increase their
11505 creativity in 1923.  What's not done is not done, and there's nothing
11506 we can do about that now.  </p></li></ol></div><p>
11507 These changes together should produce an <span class="emphasis"><em>average</em></span>
11508 copyright term that is much shorter than the current term. Until 1976,
11509 the average term was just 32.2 years. We should be aiming for the
11510 same.
11511 </p><p>
11512 No doubt the extremists will call these ideas <span class="quote">«<span class="quote">radical.</span>»</span> (After all, I
11513 call them <span class="quote">«<span class="quote">extremists.</span>»</span>) But again, the term I recommended was longer
11514 than the term under Richard Nixon. How <span class="quote">«<span class="quote">radical</span>»</span> can it be to ask for
11515 a more generous copyright law than Richard Nixon presided over?
11516 </p></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="freefairuse"></a>2.3. 3. Free Use Vs. Fair Use</h3></div></div></div><a class="indexterm" name="idp42655344"></a><a class="indexterm" name="idp42656144"></a><p>
11517 As I observed at the beginning of this book, property law originally
11518 granted property owners the right to control their property from the
11519 ground to the heavens. The airplane came along. The scope of property
11520 rights quickly changed. There was no fuss, no constitutional
11521 challenge.  It made no sense anymore to grant that much control, given
11522 the emergence of that new technology.
11523 </p><p>
11524 Our Constitution gives Congress the power to give authors <span class="quote">«<span class="quote">exclusive
11525 right</span>»</span> to <span class="quote">«<span class="quote">their writings.</span>»</span> Congress has given authors an exclusive
11526 right to <span class="quote">«<span class="quote">their writings</span>»</span> plus any derivative writings (made by
11527 others) that are sufficiently close to the author's original
11528 work. Thus, if I write a book, and you base a movie on that book, I
11529 have the power to deny you the right to release that movie, even
11530 though that movie is not <span class="quote">«<span class="quote">my writing.</span>»</span>
11531 </p><a class="indexterm" name="idp42660528"></a><p>
11532 Congress granted the beginnings of this right in 1870, when it
11533 expanded the exclusive right of copyright to include a right to
11534 control translations and dramatizations of a work.<a href="#ftn.idp42661792" class="footnote" name="idp42661792"><sup class="footnote">[216]</sup></a>
11535 The courts have expanded it slowly through judicial interpretation
11536 ever since. This expansion has been commented upon by one of the law's
11537 greatest judges, Judge Benjamin Kaplan.
11538 </p><div class="blockquote"><blockquote class="blockquote"><p>
11539 So inured have we become to the extension of the monopoly to a
11540 large range of so-called derivative works, that we no longer sense
11541 the oddity of accepting such an enlargement of copyright while
11542 yet intoning the abracadabra of idea and expression.<a href="#ftn.idp42664240" class="footnote" name="idp42664240"><sup class="footnote">[217]</sup></a>
11543 </p></blockquote></div><p>
11544 I think it's time to recognize that there are airplanes in this field and
11545 the expansiveness of these rights of derivative use no longer make
11546 sense. More precisely, they don't make sense for the period of time that
11547 a copyright runs. And they don't make sense as an amorphous grant.
11548 Consider each limitation in turn.
11549 </p><p>
11550 <span class="emphasis"><em>Term:</em></span> If Congress wants to grant a derivative
11551 right, then that right should be for a much shorter term. It makes
11552 sense to protect John
11553
11554
11555 Grisham's right to sell the movie rights to his latest novel (or at least
11556 I'm willing to assume it does); but it does not make sense for that right
11557 to run for the same term as the underlying copyright. The derivative
11558 right could be important in inducing creativity; it is not important long
11559 after the creative work is done.
11560 <a class="indexterm" name="idp42667888"></a>
11561 </p><p>
11562 <span class="emphasis"><em>Scope:</em></span> Likewise should the scope of derivative
11563 rights be narrowed.  Again, there are some cases in which derivative
11564 rights are important.  Those should be specified. But the law should
11565 draw clear lines around regulated and unregulated uses of copyrighted
11566 material. When all <span class="quote">«<span class="quote">reuse</span>»</span> of creative material was within the control
11567 of businesses, perhaps it made sense to require lawyers to negotiate
11568 the lines. It no longer makes sense for lawyers to negotiate the
11569 lines. Think about all the creative possibilities that digital
11570 technologies enable; now imagine pouring molasses into the
11571 machines. That's what this general requirement of permission does to
11572 the creative process. Smothers it.
11573 </p><a class="indexterm" name="idp42670720"></a><p>
11574 This was the point that Alben made when describing the making of the
11575 Clint Eastwood CD. While it makes sense to require negotiation for
11576 foreseeable derivative rights&#8212;turning a book into a movie, or a
11577 poem into a musical score&#8212;it doesn't make sense to require
11578 negotiation for the unforeseeable. Here, a statutory right would make
11579 much more sense.
11580 </p><p>
11581 In each of these cases, the law should mark the uses that are
11582 protected, and the presumption should be that other uses are not
11583 protected.  This is the reverse of the recommendation of my colleague
11584 Paul Goldstein.<a href="#ftn.idp42672848" class="footnote" name="idp42672848"><sup class="footnote">[218]</sup></a>
11585 His view is that the law should be written so that
11586 expanded protections follow expanded uses.
11587 </p><p>
11588 Goldstein's analysis would make perfect sense if the cost of the legal
11589 system were small. But as we are currently seeing in the context of
11590 the Internet, the uncertainty about the scope of protection, and the
11591 incentives to protect existing architectures of revenue, combined with
11592 a strong copyright, weaken the process of innovation.
11593 </p><p>
11594 The law could remedy this problem either by removing protection
11595
11596 beyond the part explicitly drawn or by granting reuse rights upon
11597 certain statutory conditions. Either way, the effect would be to free
11598 a great deal of culture to others to cultivate. And under a statutory
11599 rights regime, that reuse would earn artists more income.
11600 </p></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="liberatemusic"></a>2.4. 4. Liberate the Music&#8212;Again</h3></div></div></div><p>
11601 The battle that got this whole war going was about music, so it
11602 wouldn't be fair to end this book without addressing the issue that
11603 is, to most people, most pressing&#8212;music. There is no other
11604 policy issue that better teaches the lessons of this book than the
11605 battles around the sharing of music.
11606 </p><p>
11607 The appeal of file-sharing music was the crack cocaine of the
11608 Internet's growth. It drove demand for access to the Internet more
11609 powerfully than any other single application. It was the Internet's
11610 killer app&#8212;possibly in two senses of that word. It no doubt was
11611 the application that drove demand for bandwidth. It may well be the
11612 application that drives demand for regulations that in the end kill
11613 innovation on the network.
11614 </p><p>
11615 The aim of copyright, with respect to content in general and music in
11616 particular, is to create the incentives for music to be composed,
11617 performed, and, most importantly, spread. The law does this by giving
11618 an exclusive right to a composer to control public performances of his
11619 work, and to a performing artist to control copies of her performance.
11620 </p><p>
11621 File-sharing networks complicate this model by enabling the spread of
11622 content for which the performer has not been paid. But of course,
11623 that's not all the file-sharing networks do. As I described in chapter
11624 <a class="xref" href="#piracy" title="Chapter 5. Chapter Five: «Piracy»">5</a>, they enable
11625 four different kinds of sharing:
11626 </p><div class="orderedlist"><ol class="orderedlist" type="A"><li class="listitem"><p>
11627
11628 There are some who are using sharing networks as substitutes
11629 for purchasing CDs.
11630 </p></li><li class="listitem"><p>
11631
11632 There are also some who are using sharing networks to sample,
11633 on the way to purchasing CDs.
11634 </p></li><li class="listitem"><p>
11635
11636
11637 There are many who are using file-sharing networks to get access to
11638 content that is no longer sold but is still under copyright or that
11639 would have been too cumbersome to buy off the Net.
11640 </p></li><li class="listitem"><p>
11641
11642 There are many who are using file-sharing networks to get access to
11643 content that is not copyrighted or to get access that the copyright
11644 owner plainly endorses.
11645 </p></li></ol></div><a class="indexterm" name="idp42687920"></a><a class="indexterm" name="idp42688992"></a><p>
11646 Any reform of the law needs to keep these different uses in focus. It
11647 must avoid burdening type D even if it aims to eliminate type A. The
11648 eagerness with which the law aims to eliminate type A, moreover,
11649 should depend upon the magnitude of type B. As with VCRs, if the net
11650 effect of sharing is actually not very harmful, the need for regulation is
11651 significantly weakened.
11652 </p><p>
11653 As I said in chapter <a class="xref" href="#piracy" title="Chapter 5. Chapter Five: «Piracy»">5</a>, the actual harm caused by sharing is
11654 controversial.  For the purposes of this chapter, however, I assume
11655 the harm is real. I assume, in other words, that type A sharing is
11656 significantly greater than type B, and is the dominant use of sharing
11657 networks.
11658 </p><p>
11659 Nonetheless, there is a crucial fact about the current technological
11660 context that we must keep in mind if we are to understand how the law
11661 should respond.
11662 </p><p>
11663 Today, file sharing is addictive. In ten years, it won't be. It is
11664 addictive today because it is the easiest way to gain access to a
11665 broad range of content.  It won't be the easiest way to get access to
11666 a broad range of content in ten years. Today, access to the Internet
11667 is cumbersome and slow&#8212;we in the United States are lucky to have
11668 broadband service at 1.5 MBs, and very rarely do we get service at
11669 that speed both up and down. Although wireless access is growing, most
11670 of us still get access across wires. Most only gain access through a
11671 machine with a keyboard. The idea of the always on, always connected
11672 Internet is mainly just an idea.
11673 </p><p>
11674 But it will become a reality, and that means the way we get access to
11675 the Internet today is a technology in transition. Policy makers should
11676 not make policy on the basis of technology in transition. They should
11677
11678 make policy on the basis of where the technology is going. The
11679 question should not be, how should the law regulate sharing in this
11680 world?  The question should be, what law will we require when the
11681 network becomes the network it is clearly becoming? That network is
11682 one in which every machine with electricity is essentially on the Net;
11683 where everywhere you are&#8212;except maybe the desert or the
11684 Rockies&#8212;you can instantaneously be connected to the
11685 Internet. Imagine the Internet as ubiquitous as the best cell-phone
11686 service, where with the flip of a device, you are connected.
11687 </p><a class="indexterm" name="idp42694576"></a><p>
11688 In that world, it will be extremely easy to connect to services that
11689 give you access to content on the fly&#8212;such as Internet radio,
11690 content that is streamed to the user when the user demands. Here,
11691 then, is the critical point: When it is <span class="emphasis"><em>extremely</em></span>
11692 easy to connect to services that give access to content, it will be
11693 <span class="emphasis"><em>easier</em></span> to connect to services that give you
11694 access to content than it will be to download and store content
11695 <span class="emphasis"><em>on the many devices you will have for playing
11696 content</em></span>. It will be easier, in other words, to subscribe
11697 than it will be to be a database manager, as everyone in the
11698 download-sharing world of Napster-like technologies essentially
11699 is. Content services will compete with content sharing, even if the
11700 services charge money for the content they give access to. Already
11701 cell-phone services in Japan offer music (for a fee) streamed over
11702 cell phones (enhanced with plugs for headphones). The Japanese are
11703 paying for this content even though <span class="quote">«<span class="quote">free</span>»</span> content is available in the
11704 form of MP3s across the Web.<a href="#ftn.idp42699088" class="footnote" name="idp42699088"><sup class="footnote">[219]</sup></a>
11705
11706 </p><p>
11707 This point about the future is meant to suggest a perspective on the
11708 present: It is emphatically temporary. The <span class="quote">«<span class="quote">problem</span>»</span> with file
11709 sharing&#8212;to the extent there is a real problem&#8212;is a problem
11710 that will increasingly disappear as it becomes easier to connect to
11711 the Internet.  And thus it is an extraordinary mistake for policy
11712 makers today to be <span class="quote">«<span class="quote">solving</span>»</span> this problem in light of a technology
11713 that will be gone tomorrow.  The question should not be how to
11714 regulate the Internet to eliminate file sharing (the Net will evolve
11715 that problem away). The question instead should be how to assure that
11716 artists get paid, during
11717
11718
11719 this transition between twentieth-century models for doing business
11720 and twenty-first-century technologies.
11721 </p><p>
11722 The answer begins with recognizing that there are different <span class="quote">«<span class="quote">problems</span>»</span>
11723 here to solve. Let's start with type D content&#8212;uncopyrighted
11724 content or copyrighted content that the artist wants shared. The
11725 <span class="quote">«<span class="quote">problem</span>»</span> with this content is to make sure that the technology that
11726 would enable this kind of sharing is not rendered illegal. You can
11727 think of it this way: Pay phones are used to deliver ransom demands,
11728 no doubt.  But there are many who need to use pay phones who have
11729 nothing to do with ransoms. It would be wrong to ban pay phones in
11730 order to eliminate kidnapping.
11731 </p><p>
11732 Type C content raises a different <span class="quote">«<span class="quote">problem.</span>»</span> This is content that was,
11733 at one time, published and is no longer available. It may be
11734 unavailable because the artist is no longer valuable enough for the
11735 record label he signed with to carry his work. Or it may be
11736 unavailable because the work is forgotten. Either way, the aim of the
11737 law should be to facilitate the access to this content, ideally in a
11738 way that returns something to the artist.
11739 </p><a class="indexterm" name="idp42706704"></a><a class="indexterm" name="idp42707808"></a><p>
11740 Again, the model here is the used book store. Once a book goes out of
11741 print, it may still be available in libraries and used book
11742 stores. But libraries and used book stores don't pay the copyright
11743 owner when someone reads or buys an out-of-print book. That makes
11744 total sense, of course, since any other system would be so burdensome
11745 as to eliminate the possibility of used book stores' existing. But
11746 from the author's perspective, this <span class="quote">«<span class="quote">sharing</span>»</span> of his content without
11747 his being compensated is less than ideal.
11748 </p><p>
11749 The model of used book stores suggests that the law could simply deem
11750 out-of-print music fair game. If the publisher does not make copies of
11751 the music available for sale, then commercial and noncommercial
11752 providers would be free, under this rule, to <span class="quote">«<span class="quote">share</span>»</span> that content,
11753 even though the sharing involved making a copy. The copy here would be
11754 incidental to the trade; in a context where commercial publishing has
11755 ended, trading music should be as free as trading books.
11756 </p><p>
11757
11758
11759 Alternatively, the law could create a statutory license that would
11760 ensure that artists get something from the trade of their work. For
11761 example, if the law set a low statutory rate for the commercial
11762 sharing of content that was not offered for sale by a commercial
11763 publisher, and if that rate were automatically transferred to a trust
11764 for the benefit of the artist, then businesses could develop around
11765 the idea of trading this content, and artists would benefit from this
11766 trade.
11767 </p><p>
11768 This system would also create an incentive for publishers to keep
11769 works available commercially. Works that are available commercially
11770 would not be subject to this license. Thus, publishers could protect
11771 the right to charge whatever they want for content if they kept the
11772 work commercially available. But if they don't keep it available, and
11773 instead, the computer hard disks of fans around the world keep it
11774 alive, then any royalty owed for such copying should be much less than
11775 the amount owed a commercial publisher.
11776 </p><p>
11777 The hard case is content of types A and B, and again, this case is
11778 hard only because the extent of the problem will change over time, as
11779 the technologies for gaining access to content change. The law's
11780 solution should be as flexible as the problem is, understanding that
11781 we are in the middle of a radical transformation in the technology for
11782 delivering and accessing content.
11783 </p><p>
11784 So here's a solution that will at first seem very strange to both sides
11785 in this war, but which upon reflection, I suggest, should make some sense.
11786 </p><p>
11787 Stripped of the rhetoric about the sanctity of property, the basic
11788 claim of the content industry is this: A new technology (the Internet)
11789 has harmed a set of rights that secure copyright. If those rights are to
11790 be protected, then the content industry should be compensated for that
11791 harm. Just as the technology of tobacco harmed the health of millions
11792 of Americans, or the technology of asbestos caused grave illness to
11793 thousands of miners, so, too, has the technology of digital networks
11794 harmed the interests of the content industry.
11795 </p><p>
11796
11797 I love the Internet, and so I don't like likening it to tobacco or
11798 asbestos.  But the analogy is a fair one from the perspective of the
11799 law.  And it suggests a fair response: Rather than seeking to destroy
11800 the Internet, or the p2p technologies that are currently harming
11801 content providers on the Internet, we should find a relatively simple
11802 way to compensate those who are harmed.
11803 </p><a class="indexterm" name="idxpromisestokeepfisher"></a><p>
11804 The idea would be a modification of a proposal that has been
11805 floated by Harvard law professor William Fisher.<a href="#ftn.idp42718880" class="footnote" name="idp42718880"><sup class="footnote">[220]</sup></a>
11806 Fisher suggests a very clever way around the current impasse of the
11807 Internet. Under his plan, all content capable of digital transmission
11808 would (1) be marked with a digital watermark (don't worry about how
11809 easy it is to evade these marks; as you'll see, there's no incentive
11810 to evade them). Once the content is marked, then entrepreneurs would
11811 develop (2) systems to monitor how many items of each content were
11812 distributed. On the basis of those numbers, then (3) artists would be
11813 compensated. The compensation would be paid for by (4) an appropriate
11814 tax.
11815 </p><p>
11816 Fisher's proposal is careful and comprehensive. It raises a million
11817 questions, most of which he answers well in his upcoming book,
11818 <em class="citetitle">Promises to Keep</em>. The modification that I would make is relatively
11819 simple: Fisher imagines his proposal replacing the existing copyright
11820 system.  I imagine it complementing the existing system. The aim of
11821 the proposal would be to facilitate compensation to the extent that
11822 harm could be shown. This compensation would be temporary, aimed at
11823 facilitating a transition between regimes. And it would require
11824 renewal after a period of years. If it continues to make sense to
11825 facilitate free exchange of content, supported through a taxation
11826 system, then it can be continued. If this form of protection is no
11827 longer necessary, then the system could lapse into the old system of
11828 controlling access.
11829 </p><a class="indexterm" name="idp42739888"></a><a class="indexterm" name="idp42741200"></a><a class="indexterm" name="idp42742320"></a><a class="indexterm" name="idp42743136"></a><p>
11830 Fisher would balk at the idea of allowing the system to lapse. His aim
11831 is not just to ensure that artists are paid, but also to ensure that
11832 the system supports the widest range of <span class="quote">«<span class="quote">semiotic democracy</span>»</span>
11833 possible. But the aims of semiotic democracy would be satisfied if the
11834 other changes I described were accomplished&#8212;in particular, the
11835 limits on derivative
11836
11837
11838 uses. A system that simply charges for access would not greatly burden
11839 semiotic democracy if there were few limitations on what one was
11840 allowed to do with the content itself.
11841 </p><a class="indexterm" name="idp42745920"></a><a class="indexterm" name="idp42746704"></a><a class="indexterm" name="idp42747520"></a><a class="indexterm" name="idp42748336"></a><p>
11842 No doubt it would be difficult to calculate the proper measure of
11843 <span class="quote">«<span class="quote">harm</span>»</span> to an industry. But the difficulty of making that calculation
11844 would be outweighed by the benefit of facilitating innovation. This
11845 background system to compensate would also not need to interfere with
11846 innovative proposals such as Apple's MusicStore. As experts predicted
11847 when Apple launched the MusicStore, it could beat <span class="quote">«<span class="quote">free</span>»</span> by being
11848 easier than free is. This has proven correct: Apple has sold millions
11849 of songs at even the very high price of 99 cents a song. (At 99 cents,
11850 the cost is the equivalent of a per-song CD price, though the labels
11851 have none of the costs of a CD to pay.) Apple's move was countered by
11852 Real Networks, offering music at just 79 cents a song. And no doubt
11853 there will be a great deal of competition to offer and sell music
11854 on-line.
11855 </p><a class="indexterm" name="idp42751488"></a><a class="indexterm" name="idp42752304"></a><a class="indexterm" name="idp42753408"></a><a class="indexterm" name="idp42754240"></a><a class="indexterm" name="idp42755344"></a><p>
11856 This competition has already occurred against the background of <span class="quote">«<span class="quote">free</span>»</span>
11857 music from p2p systems. As the sellers of cable television have known
11858 for thirty years, and the sellers of bottled water for much more than
11859 that, there is nothing impossible at all about <span class="quote">«<span class="quote">competing with free.</span>»</span>
11860 Indeed, if anything, the competition spurs the competitors to offer
11861 new and better products. This is precisely what the competitive market
11862 was to be about. Thus in Singapore, though piracy is rampant, movie
11863 theaters are often luxurious&#8212;with <span class="quote">«<span class="quote">first class</span>»</span> seats, and meals
11864 served while you watch a movie&#8212;as they struggle and succeed in
11865 finding ways to compete with <span class="quote">«<span class="quote">free.</span>»</span>
11866 </p><p>
11867 This regime of competition, with a backstop to assure that artists
11868 don't lose, would facilitate a great deal of innovation in the
11869 delivery of content. That competition would continue to shrink type A
11870 sharing. It would inspire an extraordinary range of new
11871 innovators&#8212;ones who would have a right to the content, and would
11872 no longer fear the uncertain and barbarically severe punishments of
11873 the law.
11874 </p><p>
11875 In summary, then, my proposal is this:
11876 </p><p>
11877
11878
11879 The Internet is in transition. We should not be regulating a
11880 technology in transition. We should instead be regulating to minimize
11881 the harm to interests affected by this technological change, while
11882 enabling, and encouraging, the most efficient technology we can
11883 create.
11884 </p><p>
11885 We can minimize that harm while maximizing the benefit to innovation
11886 by
11887 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><p>
11888
11889 guaranteeing the right to engage in type D sharing;
11890 </p></li><li class="listitem"><p>
11891
11892 permitting noncommercial type C sharing without liability,
11893 and commercial type C sharing at a low and fixed rate set by
11894 statute;
11895 </p></li><li class="listitem"><p>
11896
11897 while in this transition, taxing and compensating for type A
11898 sharing, to the extent actual harm is demonstrated.
11899 </p></li></ol></div><p>
11900 But what if <span class="quote">«<span class="quote">piracy</span>»</span> doesn't disappear? What if there is a competitive
11901 market providing content at a low cost, but a significant number of
11902 consumers continue to <span class="quote">«<span class="quote">take</span>»</span> content for nothing? Should the law do
11903 something then?
11904 </p><p>
11905 Yes, it should. But, again, what it should do depends upon how the
11906 facts develop. These changes may not eliminate type A sharing. But the
11907 real issue is not whether it eliminates sharing in the abstract.  The
11908 real issue is its effect on the market. Is it better (a) to have a
11909 technology that is 95 percent secure and produces a market of size <em class="citetitle">x</em>,
11910 or (b) to have a technology that is 50 percent secure but produces a
11911 market of five times <em class="citetitle">x</em>? Less secure might produce more unauthorized
11912 sharing, but it is likely to also produce a much bigger market in
11913 authorized sharing. The most important thing is to assure artists'
11914 compensation without breaking the Internet. Once that's assured, then
11915 it may well be appropriate to find ways to track down the petty
11916 pirates.
11917 </p><p>
11918 But we're a long way away from whittling the problem down to this
11919 subset of type A sharers. And our focus until we're there should not
11920 be on finding ways to break the Internet. Our focus until we're there
11921
11922
11923 should be on how to make sure the artists are paid, while protecting
11924 the space for innovation and creativity that the Internet is.
11925 </p></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="firelawyers"></a>2.5. 5. Fire Lots of Lawyers</h3></div></div></div><p>
11926 I'm a lawyer. I make lawyers for a living. I believe in the law. I believe
11927 in the law of copyright. Indeed, I have devoted my life to working in
11928 law, not because there are big bucks at the end but because there are
11929 ideals at the end that I would love to live.
11930 </p><p>
11931 Yet much of this book has been a criticism of lawyers, or the role
11932 lawyers have played in this debate. The law speaks to ideals, but it
11933 is my view that our profession has become too attuned to the
11934 client. And in a world where the rich clients have one strong view,
11935 the unwillingness of the profession to question or counter that one
11936 strong view queers the law.
11937 </p><a class="indexterm" name="idp42773472"></a><a class="indexterm" name="idp42774288"></a><p>
11938 The evidence of this bending is compelling. I'm attacked as a
11939 <span class="quote">«<span class="quote">radical</span>»</span> by many within the profession, yet the positions that I am
11940 advocating are precisely the positions of some of the most moderate
11941 and significant figures in the history of this branch of the
11942 law. Many, for example, thought crazy the challenge that we brought to
11943 the Copyright Term Extension Act. Yet just thirty years ago, the
11944 dominant scholar and practitioner in the field of copyright, Melville
11945 Nimmer, thought it obvious.<a href="#ftn.idp42776624" class="footnote" name="idp42776624"><sup class="footnote">[221]</sup></a>
11946
11947 </p><p>
11948 However, my criticism of the role that lawyers have played in this
11949 debate is not just about a professional bias. It is more importantly
11950 about our failure to actually reckon the costs of the law.
11951 </p><p>
11952 Economists are supposed to be good at reckoning costs and benefits.
11953 But more often than not, economists, with no clue about how the legal
11954 system actually functions, simply assume that the transaction costs of
11955 the legal system are slight.<a href="#ftn.idp42779744" class="footnote" name="idp42779744"><sup class="footnote">[222]</sup></a>
11956 They see a system that has been around for hundreds of years, and they
11957 assume it works the way their elementary school civics class taught
11958 them it works.
11959 </p><p>
11960
11961 But the legal system doesn't work. Or more accurately, it doesn't work
11962 for anyone except those with the most resources. Not because the
11963 system is corrupt. I don't think our legal system (at the federal
11964 level, at least) is at all corrupt. I mean simply because the costs of
11965 our legal system are so astonishingly high that justice can
11966 practically never be done.
11967 </p><p>
11968 These costs distort free culture in many ways. A lawyer's time is
11969 billed at the largest firms at more than $400 per hour. How much time
11970 should such a lawyer spend reading cases carefully, or researching
11971 obscure strands of authority? The answer is the increasing reality:
11972 very little.  The law depended upon the careful articulation and
11973 development of doctrine, but the careful articulation and development
11974 of legal doctrine depends upon careful work. Yet that careful work
11975 costs too much, except in the most high-profile and costly cases.
11976 </p><p>
11977 The costliness and clumsiness and randomness of this system mock
11978 our tradition. And lawyers, as well as academics, should consider it
11979 their duty to change the way the law works&#8212;or better, to change the
11980 law so that it works. It is wrong that the system works well only for the
11981 top 1 percent of the clients. It could be made radically more efficient,
11982 and inexpensive, and hence radically more just.
11983 </p><p>
11984 But until that reform is complete, we as a society should keep the law
11985 away from areas that we know it will only harm. And that is precisely
11986 what the law will too often do if too much of our culture is left to
11987 its review.
11988 </p><a class="indexterm" name="idp42788096"></a><p>
11989 Think about the amazing things your kid could do or make with digital
11990 technology&#8212;the film, the music, the Web page, the blog. Or think
11991 about the amazing things your community could facilitate with digital
11992 technology&#8212;a wiki, a barn raising, activism to change something.
11993 Think about all those creative things, and then imagine cold molasses
11994 poured onto the machines. This is what any regime that requires
11995 permission produces. Again, this is the reality of Brezhnev's Russia.
11996 </p><p>
11997 The law should regulate in certain areas of culture&#8212;but it should
11998 regulate culture only where that regulation does good. Yet lawyers
11999
12000
12001 rarely test their power, or the power they promote, against this
12002 simple pragmatic question: <span class="quote">«<span class="quote">Will it do good?</span>»</span> When challenged about
12003 the expanding reach of the law, the lawyer answers, <span class="quote">«<span class="quote">Why not?</span>»</span>
12004 </p><p>
12005 We should ask, <span class="quote">«<span class="quote">Why?</span>»</span> Show me why your regulation of culture is
12006 needed. Show me how it does good. And until you can show me both,
12007 keep your lawyers away.
12008 </p></div></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp42495408" class="footnote"><p><a href="#idp42495408" class="para"><sup class="para">[210] </sup></a>
12009
12010
12011 See, for example, Marc Rotenberg, <span class="quote">«<span class="quote">Fair Information Practices and the
12012 Architecture of Privacy (What Larry Doesn't Get),</span>»</span> <em class="citetitle">Stanford Technology
12013 Law Review</em> 1 (2001): par. 6&#8211;18, available at
12014
12015 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #72</a>
12016 (describing examples in which technology defines privacy policy). See
12017 also Jeffrey Rosen, <em class="citetitle">The Naked Crowd: Reclaiming Security and Freedom
12018 in an Anxious Age</em> (New York: Random House, 2004) (mapping tradeoffs
12019 between technology and privacy).</p></div><div id="ftn.idp42584352" class="footnote"><p><a href="#idp42584352" class="para"><sup class="para">[211] </sup></a>
12020
12021 <em class="citetitle">Willful Infringement: A Report from the Front Lines of the Real
12022 Culture Wars</em> (2003), produced by Jed Horovitz, directed by Greg
12023 Hittelman, a Fiat Lucre production, available at
12024 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #72</a>.
12025 </p></div><div id="ftn.idp42605328" class="footnote"><p><a href="#idp42605328" class="para"><sup class="para">[212] </sup></a>
12026
12027 The proposal I am advancing here would apply to American works only.
12028 Obviously, I believe it would be beneficial for the same idea to be
12029 adopted by other countries as well.</p></div><div id="ftn.idp42619456" class="footnote"><p><a href="#idp42619456" class="para"><sup class="para">[213] </sup></a>
12030
12031 There would be a complication with derivative works that I have not
12032 solved here. In my view, the law of derivatives creates a more complicated
12033 system than is justified by the marginal incentive it creates.
12034 </p></div><div id="ftn.idp42632608" class="footnote"><p><a href="#idp42632608" class="para"><sup class="para">[214] </sup></a>
12035
12036
12037 <span class="quote">«<span class="quote">A Radical Rethink,</span>»</span> <em class="citetitle">Economist</em>, 366:8308 (25 January 2003): 15,
12038 available at
12039 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #74</a>.
12040 </p></div><div id="ftn.idp42645648" class="footnote"><p><a href="#idp42645648" class="para"><sup class="para">[215] </sup></a>
12041
12042 Department of Veterans Affairs, Veteran's Application for Compensation
12043 and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001),
12044 available at
12045 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #75</a>.
12046 </p></div><div id="ftn.idp42661792" class="footnote"><p><a href="#idp42661792" class="para"><sup class="para">[216] </sup></a>
12047
12048 Benjamin Kaplan, <em class="citetitle">An Unhurried View of Copyright</em> (New York: Columbia
12049 University Press, 1967), 32.
12050 </p></div><div id="ftn.idp42664240" class="footnote"><p><a href="#idp42664240" class="para"><sup class="para">[217] </sup></a>
12051  Ibid., 56.
12052 </p></div><div id="ftn.idp42672848" class="footnote"><p><a href="#idp42672848" class="para"><sup class="para">[218] </sup></a>
12053
12054 Paul Goldstein, <em class="citetitle">Copyright's Highway: From Gutenberg to the Celestial
12055 Jukebox</em> (Stanford: Stanford University Press, 2003), 187&#8211;216.
12056 <a class="indexterm" name="idp42497104"></a>
12057 </p></div><div id="ftn.idp42699088" class="footnote"><p><a href="#idp42699088" class="para"><sup class="para">[219] </sup></a>
12058
12059 See, for example, <span class="quote">«<span class="quote">Music Media Watch,</span>»</span> The J@pan Inc. Newsletter, 3
12060 April 2002, available at
12061 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #76</a>.
12062 </p></div><div id="ftn.idp42718880" class="footnote"><p><a href="#idp42718880" class="para"><sup class="para">[220] </sup></a>
12063
12064 <a class="indexterm" name="idxartistspayments3"></a>
12065 William Fisher, <em class="citetitle">Digital Music: Problems and Possibilities</em> (last
12066 revised: 10 October 2000), available at
12067 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #77</a>; William
12068 Fisher, <em class="citetitle">Promises to Keep: Technology, Law, and the Future of
12069 Entertainment</em> (forthcoming) (Stanford: Stanford University Press,
12070 2004), ch. 6, available at
12071 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #78</a>. Professor
12072 Netanel has proposed a related idea that would exempt noncommercial
12073 sharing from the reach of copyright and would establish compensation
12074 to artists to balance any loss. See Neil Weinstock Netanel, <span class="quote">«<span class="quote">Impose a
12075 Noncommercial Use Levy to Allow Free P2P File Sharing,</span>»</span> available at
12076 <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
12077 Broadband?</span>»</span> <em class="citetitle">Washington Post</em>, 8 January 2002, A17; Philip S. Corwin on
12078 behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr.,
12079 Chairman of the Senate Foreign Relations Committee, 26 February 2002,
12080 available at
12081 <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
12082 Use Fee (IPUF)</em>, 3 March 2002, available at
12083 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #81</a>; Jefferson Graham,
12084 <span class="quote">«<span class="quote">Kazaa, Verizon Propose to Pay Artists Directly,</span>»</span> <em class="citetitle">USA Today</em>, 13 May
12085 2002, available at
12086 <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>
12087 IEEE Spectrum Online, 1 July 2002, available at
12088 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #83</a>; Declan
12089 McCullagh, <span class="quote">«<span class="quote">Verizon's Copyright Campaign,</span>»</span> CNET News.com, 27 August
12090 2002, available at
12091 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #84</a>.
12092 Fisher's proposal is very similar to Richard Stallman's proposal for
12093 DAT. Unlike Fisher's, Stallman's proposal would not pay artists directly
12094 proportionally, though more popular artists would get more than the less
12095 popular. As is typical with Stallman, his proposal predates the current
12096 debate by about a decade. See
12097 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #85</a>.
12098 <a class="indexterm" name="idp42733712"></a>
12099 <a class="indexterm" name="idp42734528"></a>
12100 <a class="indexterm" name="idp42735344"></a>
12101 <a class="indexterm" name="idp42736176"></a>
12102 </p></div><div id="ftn.idp42776624" class="footnote"><p><a href="#idp42776624" class="para"><sup class="para">[221] </sup></a>
12103
12104 Lawrence Lessig, <span class="quote">«<span class="quote">Copyright's First Amendment</span>»</span> (Melville B. Nimmer
12105 Memorial Lecture), <em class="citetitle">UCLA Law Review</em> 48 (2001): 1057, 1069&#8211;70.
12106 </p></div><div id="ftn.idp42779744" class="footnote"><p><a href="#idp42779744" class="para"><sup class="para">[222] </sup></a>
12107
12108 A good example is the work of Professor Stan Liebowitz. Liebowitz is
12109 to be commended for his careful review of data about infringement,
12110 leading him to question his own publicly stated
12111 position&#8212;twice. He initially predicted that downloading would
12112 substantially harm the industry. He then revised his view in light of
12113 the data, and he has since revised his view again.  Compare Stan
12114 J. Liebowitz, <em class="citetitle">Rethinking the Network Economy: The True Forces That
12115 Drive the Digital Marketplace</em> (New York: Amacom, 2002), (reviewing his
12116 original view but expressing skepticism) with Stan J.  Liebowitz,
12117 <span class="quote">«<span class="quote">Will MP3s Annihilate the Record Industry?</span>»</span> working paper, June 2003,
12118 available at
12119 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #86</a>.
12120 Liebowitz's careful analysis is extremely valuable in estimating the
12121 effect of file-sharing technology. In my view, however, he
12122 underestimates the costs of the legal system. See, for example,
12123 <em class="citetitle">Rethinking</em>, 174&#8211;76.
12124 <a class="indexterm" name="idp42778304"></a>
12125 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-notes"></a>Chapter . Notes</h1></div></div></div><p>
12126 Throughout this text, there are references to links on the World Wide
12127 Web. As anyone who has tried to use the Web knows, these links can be
12128 highly unstable. I have tried to remedy the instability by redirecting
12129 readers to the original source through the Web site associated with
12130 this book. For each link below, you can go to
12131 <a class="ulink" href="http://free-culture.cc/notes" target="_top">http://free-culture.cc/notes</a>
12132 and locate the original source by clicking on the number after the #
12133 sign. If the original link remains alive, you will be redirected to
12134 that link. If the original link has disappeared, you will be
12135 redirected to an appropriate reference for the material.
12136 </p><div class="index"><div class="titlepage"><div><div><h2 class="title"><a name="idp42796480"></a>Index</h2></div></div></div><div class="index"><div class="indexdiv"><h3>Symbols</h3><dl><dt>60 Minutes, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt></dl></div><div class="indexdiv"><h3>A</h3><dl><dt>ABC, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>academic journals, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Adobe eBook Reader, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>advertising, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>-<a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Africa, medications for HIV patients in, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Agee, Michael, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>agricultural patents, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>Aibo robotic dog, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>AIDS medications, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>air traffic, land ownership vs., <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Akerlof, George, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Alben, Alex, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a>-<a class="indexterm" href="#transformers">Chapter Eight: Transformers</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>alcohol prohibition, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Alice's Adventures in Wonderland (Carroll), <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>All in the Family, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Allen, Paul, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>Amazon, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>American Association of Law Libraries, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>American Graphophone Company, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Americans with Disabilities Act (1990), <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Andromeda, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Anello, Douglas, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>animated cartoons, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>antiretroviral drugs, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Apple Corporation, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>architecture, constraint effected through, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>archive.org, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dd><dl><dt>(see also Internet Archive)</dt></dl></dd><dt>archives, digital, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>-<a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>, <a class="indexterm" href="#together">Together</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Aristotle, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Armstrong, Edwin Howard, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#harms">Chapter Twelve: Harms</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Arrow, Kenneth, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>art, underground, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>artists</dt><dd><dl><dt>publicity rights on images of, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>recording industry payments to, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#radio">Radio</a>-<a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a>-<a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>retrospective compilations on, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a>-<a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt></dl></dd><dt>ASCAP, <a class="indexterm" href="#idp38896912">«Piracy»</a></dt><dt>Asia, commercial piracy in, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>AT&amp;T, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Ayer, Don, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt></dl></div><div class="indexdiv"><h3>B</h3><dl><dt>Bacon, Francis, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Barish, Stephanie, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Barlow, Joel, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Barnes &amp; Noble, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Barry, Hank, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>BBC, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Beatles, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Beckett, Thomas, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Bell, Alexander Graham, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Berlin Act (1908), <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Berman, Howard L., <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Berne Convention (1908), <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Bernstein, Leonard, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Betamax, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>biomedical research, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Black, Jane, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>blogs (Web-logs), <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>BMG, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>BMW, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Boies, David, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>Boland, Lois, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Bolling, Ruben, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Bono, Mary, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Bono, Sonny, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>books</dt><dd><dl><dt>English copyright law developed for, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>free on-line releases of, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a>-<a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>on Internet, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>out of print, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>resales of, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>three types of uses of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>total number of, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt></dl></dd><dt>booksellers, English, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Boswell, James, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>bots, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Boyle, James, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Braithwaite, John, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Branagh, Kenneth, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Brandeis, Louis D., <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Brazil, free culture in, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Breyer, Stephen, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Brezhnev, Leonid, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt><dt>British Parliament, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>broadcast flag, <a class="indexterm" href="#film">Film</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Bromberg, Dan, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Brown, John Seely, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>browsing, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Buchanan, James, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Bunyan, John, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Burdick, Quentin, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>Bush, George W., <a class="indexterm" href="#constrain">Constraining Creators</a></dt></dl></div><div class="indexdiv"><h3>C</h3><dl><dt>cable television, <a class="indexterm" href="#cabletv">Cable TV</a>-<a class="indexterm" href="#cabletv">Cable TV</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>camera technology, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Camp Chaos, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>CARP (Copyright Arbitration Royalty Panel), <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>cars, MP3 sound systems in, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Carson, Rachel, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>cartoon films, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>Casablanca, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>cassette recording, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dd><dl><dt>VCRs, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt></dl></dd><dt>Causby, Thomas Lee, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#harms">Chapter Twelve: Harms</a>, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Causby, Tinie, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#harms">Chapter Twelve: Harms</a>, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>CBS, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>CD-ROMs, film clips used in, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a>-<a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>CDs</dt><dd><dl><dt>copyright marking of, <a class="indexterm" href="#marking">Marking</a></dt><dt>foreign piracy of, <a class="indexterm" href="#piracy-i">Piracy I</a>-<a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>mix technology and, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a>-<a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>preference data on, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>prices of, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>sales levels of, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt></dl></dd><dt>cell phones, music streamed over, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>chimeras, <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>-<a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a></dt><dt>Christensen, Clayton M., <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Clark, Kim B., <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>CNN, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Coase, Ronald, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Code (Lessig), <a class="indexterm" href="#preface">Preface</a>, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>CodePink Women in Peace, <a class="indexterm" href="#preface">Preface</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Coe, Brian, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Comcast, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>comics, Japanese, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>commerce, interstate, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Commerce, U.S. Department of, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>commercials, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>-<a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>common law, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Commons, John R., <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>composer's rights vs. producers' rights in, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>composers, copyright protections of, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>compulsory license, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>computer games, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Conger, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Congress, U.S.</dt><dd><dl><dt>constitutional powers of, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>copyright terms extended by, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>in constitutional Progress Clause, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</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><dt>Supreme Court restraint on, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt></dl></dd><dt>Conrad, Paul, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Constitution, U.S.</dt><dd><dl><dt>Commerce Clause of, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>copyright purpose established in, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>First Amendment to, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>on creative property, <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>Progress Clause of, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>structural checks and balances of, <a class="indexterm" href="#beginnings">Beginnings</a></dt></dl></dd><dt>contracts, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Conyers, John, Jr., <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a></dt><dt>cookies, Internet, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>copyleft licenses, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>copyright, <a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dd><dl><dt>(see also copyright law)</dt><dt>as narrow monopoly right, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>constitutional purpose of, <a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>duration of, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>four regulatory modalities on, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>in perpetuity, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>marking of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>of natural authors vs. corporations, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>renewability of, <a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>scope of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>usage restrictions attached to, <a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>voluntary reform efforts on, <a class="indexterm" href="#c-afterword">Afterword</a>-<a class="indexterm" href="#c-afterword">Afterword</a>, <a class="indexterm" href="#usnow">Us, now</a>-<a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt></dl></dd><dt>Copyright Act (1790), <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>copyright infringement lawsuits</dt><dd><dl><dt>against student file sharing, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>commercial creativity as primary purpose of, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>distribution technology targeted in, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>exaggerated claims of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#constrain">Constraining Creators</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>in recording industry, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#constrain">Constraining Creators</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>individual defendants intimidated by, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>statutory damages of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>willful infringement findings in, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>zero tolerance in, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt></dl></dd><dt>copyright law</dt><dd><dl><dt>as ex post regulation modality, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>as protection of creators, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>copies as core issue of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>creativity impeded by, <a class="indexterm" href="#idp38896912">«Piracy»</a></dt><dt>development of, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>English, <a class="indexterm" href="#idp38896912">«Piracy»</a>, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>European, <a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>fair use and, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>felony punishment for infringement of, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>history of American, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>innovation hampered by, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>innovative freedom balanced with fair compensation in, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Japanese, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>on music recordings, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>on republishing vs. transformation of original work, <a class="indexterm" href="#idp38896912">«Piracy»</a>-<a class="indexterm" href="#idp38896912">«Piracy»</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>registration requirement of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>scope of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>statutory licenses in, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>technology as automatic enforcer of, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>term extensions in, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>two central goals of, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt></dl></dd><dt>corporations</dt><dd><dl><dt>copyright terms for, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>in pharmaceutical industry, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>Country of the Blind, The (Wells), <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>-<a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a></dt><dt>Court of Appeals</dt><dd><dl><dt>Ninth Circuit, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt></dl></dd><dt>cover songs, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Creative Commons, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a>-<a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>creative property, <a class="indexterm" href="#idp38896912">«Piracy»</a></dt><dd><dl><dt>(see also intellectual property rights)</dt><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="#idp38896912">«Piracy»</a>-<a class="indexterm" href="#idp38896912">«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, <a class="indexterm" href="#idp38896912">«Piracy»</a></dt><dd><dl><dt>(see also innovation)</dt><dt>by transforming previous works, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>legal restrictions on, <a class="indexterm" href="#idp38896912">«Piracy»</a>-<a class="indexterm" href="#idp38896912">«Piracy»</a></dt></dl></dd><dt>Crichton, Michael, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>criminal justice system, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Crosskey, William W., <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>CTEA, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dd><dl><dt>(see also Sonny Bono Copyright Term Extension Act (CTEA) (1998))</dt></dl></dd><dt>culture, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dd><dl><dt>(see also free culture)</dt><dt>commercial vs. noncommercial, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt></dl></dd><dt>Cyber Rights (Godwin), <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt></dl></div><div class="indexdiv"><h3>D</h3><dl><dt>Daguerre, Louis, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Daley, Elizabeth, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>DAT (digital audio tape), <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Data General, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Day After Trinity, The, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>DDT, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Dean, Howard, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>democracy</dt><dd><dl><dt>digital sharing within, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>in technologies of expression, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>media concentration and, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>public discourse in, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>semiotic, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt></dl></dd><dt>Democratic Party, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>derivative works</dt><dd><dl><dt>fair use vs., <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>historical shift in copyright coverage of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>piracy vs., <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>technological developments and, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>developing countries, foreign patent costs in, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>digital cameras, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Digital Copyright (Litman), <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Diller, Barry, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Disney, Inc., <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Disney, Walt, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Doctorow, Cory, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>doctors malpractice claims against, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>documentary film, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>domain names, <a class="indexterm" href="#registration">Registration and renewal</a></dt><dt>Donaldson v. Beckett, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Donaldson, Alexander, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Douglas, William O., <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>doujinshi comics, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>Down and Out in the Magic Kingdom (Doctorow), <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Drahos, Peter, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Dreyfuss, Rochelle, <a class="indexterm" href="#idp38896912">«Piracy»</a></dt><dt>driving speed, constraints on, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Drucker, Peter, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>drugs</dt><dd><dl><dt>pharmaceutical, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>Dryden, John, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Duck and Cover film, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Dylan, Bob, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></div><div class="indexdiv"><h3>E</h3><dl><dt>e-books, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>e-mail, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Eagle Forum, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Eastman, George, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Edison, Thomas, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>education</dt><dd><dl><dt>in media literacy, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>tinkering as means of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt></dl></dd><dt>Eldred, Eric, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>elections, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>electoral college, <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>Electronic Frontier Foundation, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Else, Jon, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>EMI, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>England, copyright laws developed in, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Enlightenment, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>environmentalism, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>ephemeral films, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Errors and Omissions insurance, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Erskine, Andrew, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>expression, technologies of</dt><dd><dl><dt>democratic, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>media literacy and, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt></dl></dd></dl></div><div class="indexdiv"><h3>F</h3><dl><dt>fair use, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dd><dl><dt>in documentary film, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Internet burdens on, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>legal intimidation tactics against, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>Fallows, James, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Fanning, Shawn, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Faraday, Michael, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>farming, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>FCC</dt><dd><dl><dt>on FM radio, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt></dl></dd><dt>feudal system, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>film industry</dt><dd><dl><dt>luxury theatres vs. video piracy in, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>trailer advertisements of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>films</dt><dd><dl><dt>animated, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>archive of, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>fair use of copyrighted material in, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>multiple copyrights associated with, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>total number of, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</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="#idp38896912">«Piracy»</a></dt><dt>FM radio, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Forbes, Steve, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>formalities, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>Fourneaux, Henri, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Fox (film company), <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Fox, William, <a class="indexterm" href="#film">Film</a></dt><dt>free culture</dt><dd><dl><dt>derivative works based on, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>English legal establishment of, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>four modalities of constraint on, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt> permission culture vs., <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>restoration efforts on previous aspects of, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt></dl></dd><dt>Free for All (Wayner), <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>free market, technological changes in, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>free software/open-source software (FS/OSS), <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Fried, Charles, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Friedman, Milton, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Frost, Robert, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Future of Ideas, The (Lessig), <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></div><div class="indexdiv"><h3>G</h3><dl><dt>Garlick, Mia, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Gates, Bill, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>General Film Company, <a class="indexterm" href="#film">Film</a></dt><dt>General Public License (GPL), <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>generic drugs, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>German copyright law, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Gershwin, George, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Gil, Gilberto, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Ginsburg, Ruth Bader, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Girl Scouts, <a class="indexterm" href="#idp38896912">«Piracy»</a></dt><dt>Global Positioning System, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>GNU/Linux operating system, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Godwin, Mike, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Goldstein, Paul, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Google, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>GPL (General Public License), <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Gracie Films, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Grimm fairy tales, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Grisham, John, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Groening, Matt, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Grokster, Ltd., <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></div><div class="indexdiv"><h3>H</h3><dl><dt>hacks, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Hal Roach Studios, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Hand, Learned, <a class="indexterm" href="#radio">Radio</a></dt><dt>handguns, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Hawthorne, Nathaniel, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Henry V, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Henry VIII, King of England, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Herrera, Rebecca, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Heston, Charlton, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>history, records of, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>HIV/AIDS therapies, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Hollings, Fritz, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Hollywood film industry, <a class="indexterm" href="#film">Film</a></dt><dd><dl><dt>(see also film industry)</dt></dl></dd><dt>House of Lords, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Hummer Winblad, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Hummer, John, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Hyde, Rosel H., <a class="indexterm" href="#cabletv">Cable TV</a></dt></dl></div><div class="indexdiv"><h3>I</h3><dl><dt>IBM, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>if value, then right theory, <a class="indexterm" href="#idp38896912">«Piracy»</a>-<a class="indexterm" href="#idp38896912">«Piracy»</a>, <a class="indexterm" href="#pirates">Chapter Four: «Pirates»</a></dt><dt>images, ownership of, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>innovation, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dd><dl><dt>(see also creativity)</dt><dt>industry establishment opposed to, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>insecticide, environmental consequences of, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Intel, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>intellectual property rights, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt><dd><dl><dt>international organization on issues of, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>of drug patents, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>international law, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Internet</dt><dd><dl><dt>blogs on, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>books on, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</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>domain name registration on, <a class="indexterm" href="#registration">Registration and renewal</a></dt><dt> efficient content distribution on, <a class="indexterm" href="#idp38896912">«Piracy»</a></dt><dt>initial free character of, <a class="indexterm" href="#usnow">Us, now</a>-<a class="indexterm" href="#usnow">Us, now</a></dt><dt>news events on, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>peer-generated rankings on, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>privacy protection on, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>public discourse conducted on, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>radio on, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>search engines used on, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt></dl></dd><dt>Internet Archive, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Internet Explorer, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>interstate commerce, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Iraq war, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>ISPs (Internet service providers), user identities revealed by, <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>, <a class="indexterm" href="#constrain">Constraining Creators</a>, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a>-<a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Iwerks, Ub, <a class="indexterm" href="#creators">Chapter One: Creators</a></dt></dl></div><div class="indexdiv"><h3>J</h3><dl><dt>Japanese comics, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>Jaszi, Peter, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Jefferson, Thomas, <a class="indexterm" href="#idp39885504">«Property»</a>, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Johnson, Lyndon, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Johnson, Samuel, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Jones, Day, Reavis and Pogue (Jones Day), <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Jonson, Ben, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Jordan, Jesse, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>journalism, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>jury system, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Just Think!, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt></dl></div><div class="indexdiv"><h3>K</h3><dl><dt>Kahle, Brewster, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Kaplan, Benjamin, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Kazaa, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Keaton, Buster, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>Kelly, Kevin, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Kennedy, Anthony, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Kennedy, John F., <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Kittredge, Alfred, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>knowledge, freedom of, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Kodak cameras, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>Kodak Primer, The (Eastman), <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Kozinski, Alex, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Krim, Jonathan, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></div><div class="indexdiv"><h3>L</h3><dl><dt>land ownership, air traffic and, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Laurel and Hardy Films, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>law</dt><dd><dl><dt>as constraint modality, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>common vs. positive, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>databases of case reports in, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>federal vs. state, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt></dl></dd><dt>law schools, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Leaphart, Walter, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Lear, Norman, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>legal realist movement, <a class="indexterm" href="#together">Together</a></dt><dt>legal system, attorney costs in, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>Lessig, Lawrence, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dd><dl><dt>Eldred case involvement of, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>in international debate on intellectual property, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>Lessing, Lawrence, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Lexis and Westlaw, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>libraries</dt><dd><dl><dt>archival function of, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>journals in, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>of public-domain literature, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>privacy rights in use of, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt></dl></dd><dt>Library of Congress, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Licensing Act (1662), <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Liebowitz, Stan, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt><dt>Linux operating system, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Litman, Jessica, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Lofgren, Zoe, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Lott, Trent, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Lovett, Lyle, <a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Lucas, George, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Lucky Dog, The, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt></dl></div><div class="indexdiv"><h3>M</h3><dl><dt>Madonna, <a class="indexterm" href="#radio">Radio</a>-<a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>manga, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>Mansfield, William Murray, Lord, <a class="indexterm" href="#idp38896912">«Piracy»</a>-<a class="indexterm" href="#idp38896912">«Piracy»</a>, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Marijuana Policy Project, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>market competition, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>market constraints, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Marx Brothers, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>McCain, John, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>media</dt><dd><dl><dt>blog pressure on, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>commercial imperatives of, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>ownership concentration in, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt></dl></dd><dt>media literacy, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Mehra, Salil, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>MGM, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Michigan Technical University, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>Mickey Mouse, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>Microsoft, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dd><dl><dt>competitive strategies of, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>government case against, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>international software piracy of, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>network file system of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>on free software, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Windows operating system of, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>WIPO meeting opposed by, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>Millar v. Taylor, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Milton, John, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>monopoly, copyright as, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Monroe, Marilyn, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Morrison, Alan, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Movie Archive, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Moyers, Bill, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>MP3 players, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>MP3.com, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>MP3s, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>MTV, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Müller, Paul Hermann, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>music publishing, <a class="indexterm" href="#idp38896912">«Piracy»</a>, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>music recordings (see peer-to-peer (p2p) file sharing) (see recording industry)</dt><dd><dl><dt>total number of, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt></dl></dd><dt>MusicStore, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>my.mp3.com, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></div><div class="indexdiv"><h3>N</h3><dl><dt>Napster, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dd><dl><dt>infringing material blocked by, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>number of registrations on, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>range of content on, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>recording industry tracking users of, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a>-<a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>replacement of, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>venture capital for, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>Nashville Songwriters Association, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>National Writers Union, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>NBC, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Needleman, Rafe, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>NET (No Electronic Theft) Act (1998), <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Netanel, Neil Weinstock, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>Netscape, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>New Hampshire (Frost), <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>news coverage, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>-<a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>newspapers</dt><dd><dl><dt>archives of, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>ownership consolidation of, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>-<a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt></dl></dd><dt>Nick and Norm anti-drug campaign, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Nimmer, David, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>Nimmer, Melville, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt><dt>Ninth Circuit Court of Appeals, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>No Electronic Theft (NET) Act (1998), <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>norms, regulatory influence of, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt></dl></div><div class="indexdiv"><h3>O</h3><dl><dt>O'Connor, Sandra Day, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Olafson, Steve, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Olson, Theodore B., <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>open-source software (see free software/open-source software (FS/OSS))</dt><dt>Oppenheimer, Matt, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>originalism, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Orwell, George, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>-<a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt></dl></div><div class="indexdiv"><h3>P</h3><dl><dt>parallel importation, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Paramount Pictures, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Patent and Trademark Office, U.S., <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>patents</dt><dd><dl><dt>future patents vs. future copyrights in, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>in public domain, <a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>on film technology, <a class="indexterm" href="#film">Film</a>-<a class="indexterm" href="#film">Film</a></dt><dt>on pharmaceuticals, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>Patterson, Raymond, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>peer-to-peer (p2p) file sharing</dt><dd><dl><dt>efficiency of, <a class="indexterm" href="#idp38896912">«Piracy»</a>-<a class="indexterm" href="#idp38896912">«Piracy»</a></dt><dt>felony punishments for, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>four types of, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>infringement protections in, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</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><dt>transaction cost of, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>permissions</dt><dd><dl><dt>photography exempted from, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt></dl></dd><dt>pharmaceutical patents, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>photography, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Picker, Randal C., <a class="indexterm" href="#film">Film</a>, <a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>piracy</dt><dd><dl><dt>derivative work vs., <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>in Asia, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>in development of content industry, <a class="indexterm" href="#pirates">Chapter Four: «Pirates»</a>-<a class="indexterm" href="#cabletv">Cable TV</a></dt></dl></dd><dt>player pianos, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>PLoS (Public Library of Science), <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Pogue, David, <a class="indexterm" href="#preface">Preface</a>-<a class="indexterm" href="#preface">Preface</a></dt><dt>political discourse, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Politics, (Aristotle), <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Porgy and Bess, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>pornography, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>positive law, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>power, concentration of, <a class="indexterm" href="#preface">Preface</a>-<a class="indexterm" href="#preface">Preface</a>, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Prelinger, Rick, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Princeton University, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>privacy rights, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Progress Clause, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Promises to Keep (Fisher), <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a>-<a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>property rights</dt><dd><dl><dt>air traffic vs., <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>feudal system of, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>intangibility of, <a class="indexterm" href="#idp39885504">«Property»</a></dt></dl></dd><dt>proprietary code, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>protection of artists vs. business interests, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Public Citizen, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>public domain</dt><dd><dl><dt>access fees for material in, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>balance of U.S. content in, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>defined, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>e-book restrictions on, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>English legal establishment of, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>future patents vs. future copyrights in, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>library of works derived from, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>license system for rebuilding of, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>public projects in, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>traditional term for conversion to, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt></dl></dd><dt>Public Enemy, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Public Library of Science (PLoS), <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt></dl></div><div class="indexdiv"><h3>Q</h3><dl><dt>Quayle, Dan, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt></dl></div><div class="indexdiv"><h3>R</h3><dl><dt>radio</dt><dd><dl><dt>FM spectrum of, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>music recordings played on, <a class="indexterm" href="#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>on Internet, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>ownership consolidation in, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>-<a class="indexterm" href="#marketconcentration">Market: Concentration</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>, <a class="indexterm" href="#c-afterword">Afterword</a></dt><dt>Reagan, Ronald, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Real Networks, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>recording industry</dt><dd><dl><dt>artist remuneration in, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>copyright infringement lawsuits of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>copyright protections in, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Internet radio hampered by, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>radio broadcast and, <a class="indexterm" href="#radio">Radio</a>-<a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>statutory license system in, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a></dt></dl></dd><dt>Recording Industry Association of America (RIAA)</dt><dd><dl><dt>copyright infringement lawsuits filed by, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>intimidation tactics of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>lobbying power of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>on Internet radio fees, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>regulation</dt><dd><dl><dt>as establishment protectionism, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>four modalities of, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>outsize penalties of, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>Rehnquist, William H., <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>remote channel changers, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Rensselaer Polytechnic Institute (RPI), <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dd><dl><dt>computer network search engine of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt></dl></dd><dt>Republican Party, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Rise of the Creative Class, The (Florida), <a class="indexterm" href="#idp38896912">«Piracy»</a></dt><dt>Roberts, Michael, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>robotic dog, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Rogers, Fred, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Romeo and Juliet (Shakespeare), <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Rose, Mark, <a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#c-acknowledgments">Acknowledgments</a></dt><dt>RPI (see Rensselaer Polytechnic Institute (RPI))</dt><dt>Rubenfeld, Jeb, <a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>Russel, Phil, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt></dl></div><div class="indexdiv"><h3>S</h3><dl><dt>Safire, William, <a class="indexterm" href="#preface">Preface</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>San Francisco Opera, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Sarnoff, David, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Scalia, Antonin, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Scarlet Letter, The (Hawthorne), <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Schlafly, Phyllis, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>scientific journals, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Scottish publishers, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>search engines, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>Seasons, The (Thomson), <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>semiotic democracy, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>Senate, U.S., <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>September 11, 2001, terrorist attacks of, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Shakespeare, William, <a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>sheet music, <a class="indexterm" href="#idp38896912">«Piracy»</a>, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Silent Spring (Carson), <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Simpsons, The, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>single nucleotied polymorphisms (SNPs), <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Sonny Bono Copyright Term Extension Act (CTEA) (1998), <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dd><dl><dt>Supreme Court challenge of, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt></dl></dd><dt>Sony</dt><dd><dl><dt>Aibo robotic dog produced by, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Betamax technology developed by, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt></dl></dd><dt>Sony Pictures Entertainment, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Sousa, John Philip, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>South Africa, Republic of, pharmaceutical imports by, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>speech, freedom of</dt><dd><dl><dt>constitutional guarantee of, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt></dl></dd><dt>speeding, constraints on, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Stallman, Richard, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Stanford University, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Star Wars, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Statute of Anne (1710), <a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>Statute of Monopolies (1656), <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>statutory damages, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>statutory licenses, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Steamboat Bill, Jr., <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Steamboat Willie, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>steel industry, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Stevens, Ted, <a class="indexterm" href="#preface">Preface</a></dt><dt>Steward, Geoffrey, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Superman comics, <a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>Supreme Court, U.S.</dt><dd><dl><dt>access to opinions of, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>congressional actions restrained by, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>factions of, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>House of Lords vs., <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>on airspace vs. land rights, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>on balance of interests in copyright law, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>on television advertising bans, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt></dl></dd><dt>Sutherland, Donald, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt></dl></div><div class="indexdiv"><h3>T</h3><dl><dt>Talbot, William, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Tatel, David, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Tauzin, Billy, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Taylor, Robert, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>technology</dt><dd><dl><dt>copyright enforcement controlled by, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>copyright intent altered by, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>established industries threatened by changes in, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>legal murkiness on, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>television</dt><dd><dl><dt>advertising on, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>-<a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>cable vs. broadcast, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>controversy avoided by, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt></dl></dd><dt>Television Archive, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Thomas, Clarence, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Thomson, James, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Thurmond, Strom, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Tocqueville, Alexis de, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Tonson, Jacob, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>tort reform, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>Torvalds, Linus, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Turner, Ted, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Twentieth Century Fox, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt></dl></div><div class="indexdiv"><h3>U</h3><dl><dt>United Kingdom</dt><dd><dl><dt>history of copyright law in, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>public creative archive in, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>United States Trade Representative (USTR), <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>United States v. Lopez, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>United States v. Morrison, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Universal Music Group, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Universal Pictures, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>university computer networks, p2p sharing on, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>used record sales, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt></dl></div><div class="indexdiv"><h3>V</h3><dl><dt>Vaidhyanathan, Siva, <a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#film">Film</a>, <a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#together">Together</a></dt><dt>Valenti, Jack</dt><dd><dl><dt>background of, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Eldred Act opposed by, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt> on creative property rights, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>on VCR technology, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>perpetual copyright term proposed by, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt></dl></dd><dt>Vanderbilt University, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>VCRs, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>venture capitalists, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>veterans' pensions, <a class="indexterm" href="#shortterms">2. Shorter Terms</a></dt><dt>Video Pipeline, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Vivendi Universal, <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>von Lohmann, Fred, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt></dl></div><div class="indexdiv"><h3>W</h3><dl><dt>Wagner, Richard, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Warner Brothers, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Warner Music Group, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Warren, Samuel D., <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Way Back Machine, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Wayner, Peter, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Web sites, domain name registration of, <a class="indexterm" href="#registration">Registration and renewal</a></dt><dt>Web-logs (blogs), <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Webster, Noah, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Wellcome Trust, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Wells, H. G., <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>-<a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a></dt><dt>White House press releases, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>willful infringement, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Windows, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>Winer, Dave, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Winick, Judd, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>WJOA, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>World Intellectual Property Organization (WIPO), <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>World Summit on the Information Society (WSIS), <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>World Trade Center, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>World Wide Web, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>WorldCom, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>WRC, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Wright brothers, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt></dl></div><div class="indexdiv"><h3>Y</h3><dl><dt>Yanofsky, Dave, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt></dl></div><div class="indexdiv"><h3>Z</h3><dl><dt>Zimmerman, Edwin, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>Zittrain, Jonathan, <a class="indexterm" href="#idp38896912">«Piracy»</a>, <a class="indexterm" href="#lawscope">Law: Scope</a></dt></dl></div></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-acknowledgments"></a>Chapter . Acknowledgments</h1></div></div></div><p>
12137 This book is the product of a long and as yet unsuccessful struggle that
12138 began when I read of Eric Eldred's war to keep books free. Eldred's
12139 work helped launch a movement, the free culture movement, and it is
12140 to him that this book is dedicated.
12141 </p><a class="indexterm" name="idp42799408"></a><p>
12142 I received guidance in various places from friends and academics,
12143 including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner,
12144 Mark Rose, and Kathleen Sullivan. And I received correction and
12145 guidance from many amazing students at Stanford Law School and
12146 Stanford University. They included Andrew B. Coan, John Eden, James
12147 P. Fellers, Christopher Guzelian, Erica Goldberg, Robert Hallman,
12148 Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, Alina Ng, and
12149 Erica Platt. I am particularly grateful to Catherine Crump and Harry
12150 Surden, who helped direct their research, and to Laura Lynch, who
12151 brilliantly managed the army that they assembled, and provided her own
12152 critical eye on much of this.
12153 </p><p>
12154 Yuko Noguchi helped me to understand the laws of Japan as well as
12155 its culture. I am thankful to her, and to the many in Japan who helped
12156 me prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki,
12157 Michihiro Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro
12158
12159 Yonezawa. I am thankful as well as to Professor Nobuhiro Nakayama,
12160 and the Tokyo University Business Law Center, for giving me the
12161 chance to spend time in Japan, and to Tadashi Shiraishi and Kiyokazu
12162 Yamagami for their generous help while I was there.
12163 </p><p>
12164 These are the traditional sorts of help that academics regularly draw
12165 upon. But in addition to them, the Internet has made it possible to
12166 receive advice and correction from many whom I have never even
12167 met. Among those who have responded with extremely helpful advice to
12168 requests on my blog about the book are Dr. Mohammad Al-Ubaydli, David
12169 Gerstein, and Peter DiMauro, as well as a long list of those who had
12170 specific ideas about ways to develop my argument. They included
12171 Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob Devine,
12172 Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy Hunsinger,
12173 Vaughn Iverson, John Karabaic, Jeff Keltner, James Lindenschmidt,
12174 K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan
12175 McMullen, Fred Norton, John Pormann, Pedro A. D.  Rezende, Shabbir
12176 Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker,
12177 Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt
12178 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>
12179 and Richard Yanco. (I apologize if I have missed anyone; with
12180 computers come glitches, and a crash of my e-mail system meant I lost
12181 a bunch of great replies.)
12182 </p><p>
12183 Richard Stallman and Michael Carroll each read the whole book in
12184 draft, and each provided extremely helpful correction and advice.
12185 Michael helped me to see more clearly the significance of the
12186 regulation of derivitive works. And Richard corrected an
12187 embarrassingly large number of errors. While my work is in part
12188 inspired by Stallman's, he does not agree with me in important places
12189 throughout this book.
12190 </p><p>
12191 Finally, and forever, I am thankful to Bettina, who has always
12192 insisted that there would be unending happiness away from these
12193 battles, and who has always been right. This slow learner is, as ever,
12194 grateful for her perpetual patience and love.
12195 </p></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-about-this-edition"></a>Chapter . About this edition</h1></div></div></div><p>
12196 This edition of <em class="citetitle">Free Culture</em> is the result of
12197 three years of volunteer work.  The idea came from a discussion I had
12198 around ten years ago with a friend about the copyright debate in
12199 Norway, and how rarely the difficulties of long copyright made it into
12200 the public debate.  A bit more than three years ago I finally had a
12201 look again at the idea and decided to publish a printed Norwegian
12202 Bokmål version of <em class="citetitle">Free Culture</em>, translated and
12203 formatted by volunteers.  The new English edition is a by-product of
12204 the translation process.
12205   </p><p>
12206 Thanks to the Debian Edu / Skolelinux project, I already had
12207 experience translating Docbook documents, and it seemed like a good
12208 format for this book too.  I found a Docbook formatted version of the
12209 book created by Hans Schou.  Initial testing showed lots of Docbook
12210 validation errors in this version, but after some work I was able to
12211 transform it to PDF and EPUB.  This was the start of the translation
12212 project.  The Docbook file improved over time, and build rules were
12213 added to create both English and Bokmål versions.  Finally, a call for
12214 volunteers went out to help me with the translation.
12215   </p><p>
12216 Several people joined, and Anders Hagen Jarmund, Kirill Miazine, Odd
12217 Kleiva, Kjetil Kilhavn og Kjetil T. Homme assisted with the initial
12218 translation.  Ralph Amissah and his SiSu version provided index
12219 entries.  Morten Sickel and Alexander Alemayhu helped with the
12220 figures, redrawing some of the bitmaps as vector images.  Wivi
12221 Reinholdtsen, Ingrid Yrvin, Johannes Larsen and Gisle Hannemyr did
12222 very valuable proofreading.  Håkon Wium Lie helped me track down a
12223 good replacement font without usage restrictions instead of the one in
12224 the original PDF.  The PDF typesetting is done using dblatex, which we
12225 selected over the alternatives thanks to the invaluable and quick help
12226 from Benoît Guillon and Andreas Hoenen.  Thomas Gramstad donated ISBN
12227 numbers needed for distribution to book stores.  Marc Jeanmougin from
12228 the inkscape community helped me replicate the original front cover.
12229 The support of Lawrence Lessig helped me to complete the
12230 project&#8212;I am very thankful he had the original screen shots
12231 still available after 11 years.
12232   </p><p>
12233 At the end of the project, when the translation was done and it was
12234 time to publish, NUUG Foundation was asked and was willing to sponsor
12235 books to members of the Norwegian parliament and other decision
12236 makers.
12237   </p><p>
12238 In addition to these great contributors, I am very grateful to Mari
12239 and my family for their patience with me in this project.
12240   </p><p>
12241 &#8212; Petter Reinholdtsen, Oslo 2015-09-07
12242   </p></div><div class="index"><div class="titlepage"><div><div><h1 class="title"><a name="idp42815216"></a>Index</h1></div></div></div><div class="index"><div class="indexdiv"><h3>Symbols</h3><dl><dt>60 Minutes, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt></dl></div><div class="indexdiv"><h3>A</h3><dl><dt>ABC, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>academic journals, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Adobe eBook Reader, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>advertising, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>-<a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Africa, medications for HIV patients in, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Agee, Michael, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>agricultural patents, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>Aibo robotic dog, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>AIDS medications, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>air traffic, land ownership vs., <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Akerlof, George, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Alben, Alex, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a>-<a class="indexterm" href="#transformers">Chapter Eight: Transformers</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>alcohol prohibition, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Alice's Adventures in Wonderland (Carroll), <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>All in the Family, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Allen, Paul, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>Amazon, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>American Association of Law Libraries, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>American Graphophone Company, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Americans with Disabilities Act (1990), <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Andromeda, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Anello, Douglas, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>animated cartoons, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>antiretroviral drugs, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Apple Corporation, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>architecture, constraint effected through, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>archive.org, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dd><dl><dt>(see also Internet Archive)</dt></dl></dd><dt>archives, digital, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>-<a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>, <a class="indexterm" href="#together">Together</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Aristotle, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Armstrong, Edwin Howard, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#harms">Chapter Twelve: Harms</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Arrow, Kenneth, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>art, underground, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>artists</dt><dd><dl><dt>publicity rights on images of, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>recording industry payments to, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#radio">Radio</a>-<a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a>-<a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>retrospective compilations on, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a>-<a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt></dl></dd><dt>ASCAP, <a class="indexterm" href="#idp38896912">«Piracy»</a></dt><dt>Asia, commercial piracy in, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>AT&amp;T, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Ayer, Don, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt></dl></div><div class="indexdiv"><h3>B</h3><dl><dt>Bacon, Francis, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Barish, Stephanie, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Barlow, Joel, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Barnes &amp; Noble, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Barry, Hank, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>BBC, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Beatles, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Beckett, Thomas, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Bell, Alexander Graham, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Berlin Act (1908), <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Berman, Howard L., <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Berne Convention (1908), <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Bernstein, Leonard, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Betamax, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>biomedical research, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Black, Jane, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>blogs (Web-logs), <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>BMG, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>BMW, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Boies, David, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>Boland, Lois, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Bolling, Ruben, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Bono, Mary, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Bono, Sonny, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>books</dt><dd><dl><dt>English copyright law developed for, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>free on-line releases of, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a>-<a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>on Internet, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>out of print, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>resales of, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>three types of uses of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>total number of, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt></dl></dd><dt>booksellers, English, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Boswell, James, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>bots, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Boyle, James, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Braithwaite, John, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Branagh, Kenneth, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Brandeis, Louis D., <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Brazil, free culture in, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Breyer, Stephen, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Brezhnev, Leonid, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt><dt>British Parliament, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>broadcast flag, <a class="indexterm" href="#film">Film</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Bromberg, Dan, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Brown, John Seely, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>browsing, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Buchanan, James, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Bunyan, John, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Burdick, Quentin, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>Bush, George W., <a class="indexterm" href="#constrain">Constraining Creators</a></dt></dl></div><div class="indexdiv"><h3>C</h3><dl><dt>cable television, <a class="indexterm" href="#cabletv">Cable TV</a>-<a class="indexterm" href="#cabletv">Cable TV</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>camera technology, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Camp Chaos, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>CARP (Copyright Arbitration Royalty Panel), <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>cars, MP3 sound systems in, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Carson, Rachel, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>cartoon films, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>Casablanca, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>cassette recording, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dd><dl><dt>VCRs, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt></dl></dd><dt>Causby, Thomas Lee, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#harms">Chapter Twelve: Harms</a>, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Causby, Tinie, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#harms">Chapter Twelve: Harms</a>, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>CBS, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>CD-ROMs, film clips used in, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a>-<a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>CDs</dt><dd><dl><dt>copyright marking of, <a class="indexterm" href="#marking">Marking</a></dt><dt>foreign piracy of, <a class="indexterm" href="#piracy-i">Piracy I</a>-<a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>mix technology and, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a>-<a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>preference data on, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>prices of, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>sales levels of, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt></dl></dd><dt>cell phones, music streamed over, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>chimeras, <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>-<a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a></dt><dt>Christensen, Clayton M., <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Clark, Kim B., <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>CNN, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Coase, Ronald, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Code (Lessig), <a class="indexterm" href="#preface">Preface</a>, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>CodePink Women in Peace, <a class="indexterm" href="#preface">Preface</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Coe, Brian, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Comcast, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>comics, Japanese, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>commerce, interstate, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Commerce, U.S. Department of, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>commercials, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>-<a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>common law, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Commons, John R., <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>composer's rights vs. producers' rights in, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>composers, copyright protections of, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>compulsory license, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>computer games, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Conger, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Congress, U.S.</dt><dd><dl><dt>constitutional powers of, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>copyright terms extended by, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>in constitutional Progress Clause, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</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><dt>Supreme Court restraint on, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt></dl></dd><dt>Conrad, Paul, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Constitution, U.S.</dt><dd><dl><dt>Commerce Clause of, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>copyright purpose established in, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>First Amendment to, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>on creative property, <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>Progress Clause of, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>structural checks and balances of, <a class="indexterm" href="#beginnings">Beginnings</a></dt></dl></dd><dt>contracts, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Conyers, John, Jr., <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a></dt><dt>cookies, Internet, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>copyleft licenses, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>copyright, <a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dd><dl><dt>(see also copyright law)</dt><dt>as narrow monopoly right, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>constitutional purpose of, <a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>duration of, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>four regulatory modalities on, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>in perpetuity, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>marking of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>of natural authors vs. corporations, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>renewability of, <a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>scope of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>usage restrictions attached to, <a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>voluntary reform efforts on, <a class="indexterm" href="#c-afterword">Afterword</a>-<a class="indexterm" href="#c-afterword">Afterword</a>, <a class="indexterm" href="#usnow">Us, now</a>-<a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt></dl></dd><dt>Copyright Act (1790), <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>copyright infringement lawsuits</dt><dd><dl><dt>against student file sharing, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>commercial creativity as primary purpose of, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>distribution technology targeted in, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>exaggerated claims of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#constrain">Constraining Creators</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>in recording industry, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#constrain">Constraining Creators</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>individual defendants intimidated by, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>statutory damages of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>willful infringement findings in, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>zero tolerance in, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt></dl></dd><dt>copyright law</dt><dd><dl><dt>as ex post regulation modality, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>as protection of creators, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>copies as core issue of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>creativity impeded by, <a class="indexterm" href="#idp38896912">«Piracy»</a></dt><dt>development of, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>English, <a class="indexterm" href="#idp38896912">«Piracy»</a>, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>European, <a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>fair use and, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>felony punishment for infringement of, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>history of American, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>innovation hampered by, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>innovative freedom balanced with fair compensation in, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Japanese, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>on music recordings, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>on republishing vs. transformation of original work, <a class="indexterm" href="#idp38896912">«Piracy»</a>-<a class="indexterm" href="#idp38896912">«Piracy»</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>registration requirement of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>scope of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>statutory licenses in, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>technology as automatic enforcer of, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>term extensions in, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>two central goals of, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt></dl></dd><dt>corporations</dt><dd><dl><dt>copyright terms for, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>in pharmaceutical industry, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>Country of the Blind, The (Wells), <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>-<a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a></dt><dt>Court of Appeals</dt><dd><dl><dt>Ninth Circuit, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt></dl></dd><dt>cover songs, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Creative Commons, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a>-<a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>creative property, <a class="indexterm" href="#idp38896912">«Piracy»</a></dt><dd><dl><dt>(see also intellectual property rights)</dt><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="#idp38896912">«Piracy»</a>-<a class="indexterm" href="#idp38896912">«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, <a class="indexterm" href="#idp38896912">«Piracy»</a></dt><dd><dl><dt>(see also innovation)</dt><dt>by transforming previous works, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>legal restrictions on, <a class="indexterm" href="#idp38896912">«Piracy»</a>-<a class="indexterm" href="#idp38896912">«Piracy»</a></dt></dl></dd><dt>Crichton, Michael, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>criminal justice system, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Crosskey, William W., <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>CTEA, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dd><dl><dt>(see also Sonny Bono Copyright Term Extension Act (CTEA) (1998))</dt></dl></dd><dt>culture, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dd><dl><dt>(see also free culture)</dt><dt>commercial vs. noncommercial, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt></dl></dd><dt>Cyber Rights (Godwin), <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt></dl></div><div class="indexdiv"><h3>D</h3><dl><dt>Daguerre, Louis, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Daley, Elizabeth, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>DAT (digital audio tape), <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Data General, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Day After Trinity, The, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>DDT, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Dean, Howard, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>democracy</dt><dd><dl><dt>digital sharing within, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>in technologies of expression, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>media concentration and, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>public discourse in, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>semiotic, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt></dl></dd><dt>Democratic Party, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>derivative works</dt><dd><dl><dt>fair use vs., <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>historical shift in copyright coverage of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>piracy vs., <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>technological developments and, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>developing countries, foreign patent costs in, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>digital cameras, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Digital Copyright (Litman), <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Diller, Barry, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Disney, Inc., <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Disney, Walt, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Doctorow, Cory, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>doctors malpractice claims against, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>documentary film, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>domain names, <a class="indexterm" href="#registration">Registration and renewal</a></dt><dt>Donaldson v. Beckett, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Donaldson, Alexander, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Douglas, William O., <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>doujinshi comics, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>Down and Out in the Magic Kingdom (Doctorow), <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Drahos, Peter, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Dreyfuss, Rochelle, <a class="indexterm" href="#idp38896912">«Piracy»</a></dt><dt>driving speed, constraints on, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Drucker, Peter, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>drugs</dt><dd><dl><dt>pharmaceutical, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>Dryden, John, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Duck and Cover film, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Dylan, Bob, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></div><div class="indexdiv"><h3>E</h3><dl><dt>e-books, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>e-mail, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Eagle Forum, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Eastman, George, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Edison, Thomas, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>education</dt><dd><dl><dt>in media literacy, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>tinkering as means of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt></dl></dd><dt>Eldred, Eric, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>elections, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>electoral college, <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>Electronic Frontier Foundation, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Else, Jon, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>EMI, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>England, copyright laws developed in, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Enlightenment, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>environmentalism, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>ephemeral films, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Errors and Omissions insurance, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Erskine, Andrew, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>expression, technologies of</dt><dd><dl><dt>democratic, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>media literacy and, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt></dl></dd></dl></div><div class="indexdiv"><h3>F</h3><dl><dt>fair use, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dd><dl><dt>in documentary film, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Internet burdens on, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>legal intimidation tactics against, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>Fallows, James, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Fanning, Shawn, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Faraday, Michael, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>farming, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>FCC</dt><dd><dl><dt>on FM radio, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt></dl></dd><dt>feudal system, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>film industry</dt><dd><dl><dt>luxury theatres vs. video piracy in, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>trailer advertisements of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>films</dt><dd><dl><dt>animated, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>archive of, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>fair use of copyrighted material in, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>multiple copyrights associated with, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>total number of, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</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="#idp38896912">«Piracy»</a></dt><dt>FM radio, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Forbes, Steve, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>formalities, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>Fourneaux, Henri, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Fox (film company), <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Fox, William, <a class="indexterm" href="#film">Film</a></dt><dt>free culture</dt><dd><dl><dt>derivative works based on, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>English legal establishment of, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>four modalities of constraint on, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt> permission culture vs., <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>restoration efforts on previous aspects of, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt></dl></dd><dt>Free for All (Wayner), <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>free market, technological changes in, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>free software/open-source software (FS/OSS), <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Fried, Charles, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Friedman, Milton, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Frost, Robert, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Future of Ideas, The (Lessig), <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></div><div class="indexdiv"><h3>G</h3><dl><dt>Garlick, Mia, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Gates, Bill, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>General Film Company, <a class="indexterm" href="#film">Film</a></dt><dt>General Public License (GPL), <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>generic drugs, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>German copyright law, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Gershwin, George, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Gil, Gilberto, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Ginsburg, Ruth Bader, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Girl Scouts, <a class="indexterm" href="#idp38896912">«Piracy»</a></dt><dt>Global Positioning System, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>GNU/Linux operating system, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Godwin, Mike, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Goldstein, Paul, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Google, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>GPL (General Public License), <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Gracie Films, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Grimm fairy tales, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Grisham, John, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Groening, Matt, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Grokster, Ltd., <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></div><div class="indexdiv"><h3>H</h3><dl><dt>hacks, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Hal Roach Studios, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Hand, Learned, <a class="indexterm" href="#radio">Radio</a></dt><dt>handguns, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Hawthorne, Nathaniel, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Henry V, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Henry VIII, King of England, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Herrera, Rebecca, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Heston, Charlton, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>history, records of, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>HIV/AIDS therapies, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Hollings, Fritz, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Hollywood film industry, <a class="indexterm" href="#film">Film</a></dt><dd><dl><dt>(see also film industry)</dt></dl></dd><dt>House of Lords, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Hummer Winblad, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Hummer, John, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Hyde, Rosel H., <a class="indexterm" href="#cabletv">Cable TV</a></dt></dl></div><div class="indexdiv"><h3>I</h3><dl><dt>IBM, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>if value, then right theory, <a class="indexterm" href="#idp38896912">«Piracy»</a>-<a class="indexterm" href="#idp38896912">«Piracy»</a>, <a class="indexterm" href="#pirates">Chapter Four: «Pirates»</a></dt><dt>images, ownership of, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>innovation, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dd><dl><dt>(see also creativity)</dt><dt>industry establishment opposed to, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>insecticide, environmental consequences of, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Intel, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>intellectual property rights, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt><dd><dl><dt>international organization on issues of, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>of drug patents, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>international law, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Internet</dt><dd><dl><dt>blogs on, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>books on, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</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>domain name registration on, <a class="indexterm" href="#registration">Registration and renewal</a></dt><dt> efficient content distribution on, <a class="indexterm" href="#idp38896912">«Piracy»</a></dt><dt>initial free character of, <a class="indexterm" href="#usnow">Us, now</a>-<a class="indexterm" href="#usnow">Us, now</a></dt><dt>news events on, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>peer-generated rankings on, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>privacy protection on, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>public discourse conducted on, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>radio on, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>search engines used on, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt></dl></dd><dt>Internet Archive, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Internet Explorer, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>interstate commerce, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Iraq war, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>ISPs (Internet service providers), user identities revealed by, <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>, <a class="indexterm" href="#constrain">Constraining Creators</a>, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a>-<a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Iwerks, Ub, <a class="indexterm" href="#creators">Chapter One: Creators</a></dt></dl></div><div class="indexdiv"><h3>J</h3><dl><dt>Japanese comics, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>Jaszi, Peter, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Jefferson, Thomas, <a class="indexterm" href="#idp39885504">«Property»</a>, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Johnson, Lyndon, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Johnson, Samuel, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Jones, Day, Reavis and Pogue (Jones Day), <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Jonson, Ben, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Jordan, Jesse, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>journalism, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>jury system, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Just Think!, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt></dl></div><div class="indexdiv"><h3>K</h3><dl><dt>Kahle, Brewster, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Kaplan, Benjamin, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Kazaa, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Keaton, Buster, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>Kelly, Kevin, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Kennedy, Anthony, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Kennedy, John F., <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Kittredge, Alfred, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>knowledge, freedom of, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Kodak cameras, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>Kodak Primer, The (Eastman), <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Kozinski, Alex, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Krim, Jonathan, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></div><div class="indexdiv"><h3>L</h3><dl><dt>land ownership, air traffic and, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Laurel and Hardy Films, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>law</dt><dd><dl><dt>as constraint modality, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>common vs. positive, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>databases of case reports in, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>federal vs. state, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt></dl></dd><dt>law schools, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Leaphart, Walter, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Lear, Norman, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>legal realist movement, <a class="indexterm" href="#together">Together</a></dt><dt>legal system, attorney costs in, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>Lessig, Lawrence, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dd><dl><dt>Eldred case involvement of, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>in international debate on intellectual property, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>Lessing, Lawrence, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Lexis and Westlaw, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>libraries</dt><dd><dl><dt>archival function of, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>journals in, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>of public-domain literature, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>privacy rights in use of, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt></dl></dd><dt>Library of Congress, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Licensing Act (1662), <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Liebowitz, Stan, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt><dt>Linux operating system, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Litman, Jessica, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Lofgren, Zoe, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Lott, Trent, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Lovett, Lyle, <a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Lucas, George, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Lucky Dog, The, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt></dl></div><div class="indexdiv"><h3>M</h3><dl><dt>Madonna, <a class="indexterm" href="#radio">Radio</a>-<a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>manga, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>Mansfield, William Murray, Lord, <a class="indexterm" href="#idp38896912">«Piracy»</a>-<a class="indexterm" href="#idp38896912">«Piracy»</a>, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Marijuana Policy Project, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>market competition, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>market constraints, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Marx Brothers, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>McCain, John, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>media</dt><dd><dl><dt>blog pressure on, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>commercial imperatives of, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>ownership concentration in, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt></dl></dd><dt>media literacy, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Mehra, Salil, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>MGM, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Michigan Technical University, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>Mickey Mouse, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>Microsoft, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dd><dl><dt>competitive strategies of, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>government case against, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>international software piracy of, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>network file system of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>on free software, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Windows operating system of, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>WIPO meeting opposed by, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>Millar v. Taylor, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Milton, John, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>monopoly, copyright as, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Monroe, Marilyn, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Morrison, Alan, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Movie Archive, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Moyers, Bill, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>MP3 players, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>MP3.com, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>MP3s, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>MTV, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Müller, Paul Hermann, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>music publishing, <a class="indexterm" href="#idp38896912">«Piracy»</a>, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>music recordings (see peer-to-peer (p2p) file sharing) (see recording industry)</dt><dd><dl><dt>total number of, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt></dl></dd><dt>MusicStore, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>my.mp3.com, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></div><div class="indexdiv"><h3>N</h3><dl><dt>Napster, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dd><dl><dt>infringing material blocked by, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>number of registrations on, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>range of content on, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>recording industry tracking users of, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a>-<a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>replacement of, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>venture capital for, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>Nashville Songwriters Association, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>National Writers Union, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>NBC, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Needleman, Rafe, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>NET (No Electronic Theft) Act (1998), <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Netanel, Neil Weinstock, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>Netscape, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>New Hampshire (Frost), <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>news coverage, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>-<a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>newspapers</dt><dd><dl><dt>archives of, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>ownership consolidation of, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>-<a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt></dl></dd><dt>Nick and Norm anti-drug campaign, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Nimmer, David, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>Nimmer, Melville, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt><dt>Ninth Circuit Court of Appeals, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>No Electronic Theft (NET) Act (1998), <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>norms, regulatory influence of, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt></dl></div><div class="indexdiv"><h3>O</h3><dl><dt>O'Connor, Sandra Day, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Olafson, Steve, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Olson, Theodore B., <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>open-source software (see free software/open-source software (FS/OSS))</dt><dt>Oppenheimer, Matt, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>originalism, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Orwell, George, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>-<a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt></dl></div><div class="indexdiv"><h3>P</h3><dl><dt>parallel importation, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Paramount Pictures, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Patent and Trademark Office, U.S., <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>patents</dt><dd><dl><dt>future patents vs. future copyrights in, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>in public domain, <a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>on film technology, <a class="indexterm" href="#film">Film</a>-<a class="indexterm" href="#film">Film</a></dt><dt>on pharmaceuticals, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>Patterson, Raymond, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>peer-to-peer (p2p) file sharing</dt><dd><dl><dt>efficiency of, <a class="indexterm" href="#idp38896912">«Piracy»</a>-<a class="indexterm" href="#idp38896912">«Piracy»</a></dt><dt>felony punishments for, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>four types of, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>infringement protections in, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</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><dt>transaction cost of, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>permissions</dt><dd><dl><dt>photography exempted from, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt></dl></dd><dt>pharmaceutical patents, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>photography, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Picker, Randal C., <a class="indexterm" href="#film">Film</a>, <a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>piracy</dt><dd><dl><dt>derivative work vs., <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>in Asia, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>in development of content industry, <a class="indexterm" href="#pirates">Chapter Four: «Pirates»</a>-<a class="indexterm" href="#cabletv">Cable TV</a></dt></dl></dd><dt>player pianos, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>PLoS (Public Library of Science), <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Pogue, David, <a class="indexterm" href="#preface">Preface</a>-<a class="indexterm" href="#preface">Preface</a></dt><dt>political discourse, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Politics, (Aristotle), <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Porgy and Bess, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>pornography, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>positive law, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>power, concentration of, <a class="indexterm" href="#preface">Preface</a>-<a class="indexterm" href="#preface">Preface</a>, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Prelinger, Rick, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Princeton University, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>privacy rights, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Progress Clause, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Promises to Keep (Fisher), <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a>-<a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>property rights</dt><dd><dl><dt>air traffic vs., <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>feudal system of, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>intangibility of, <a class="indexterm" href="#idp39885504">«Property»</a></dt></dl></dd><dt>proprietary code, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>protection of artists vs. business interests, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Public Citizen, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>public domain</dt><dd><dl><dt>access fees for material in, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>balance of U.S. content in, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>defined, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>e-book restrictions on, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>English legal establishment of, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>future patents vs. future copyrights in, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>library of works derived from, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>license system for rebuilding of, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>public projects in, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>traditional term for conversion to, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt></dl></dd><dt>Public Enemy, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Public Library of Science (PLoS), <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt></dl></div><div class="indexdiv"><h3>Q</h3><dl><dt>Quayle, Dan, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt></dl></div><div class="indexdiv"><h3>R</h3><dl><dt>radio</dt><dd><dl><dt>FM spectrum of, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>music recordings played on, <a class="indexterm" href="#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>on Internet, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>ownership consolidation in, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>-<a class="indexterm" href="#marketconcentration">Market: Concentration</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>, <a class="indexterm" href="#c-afterword">Afterword</a></dt><dt>Reagan, Ronald, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Real Networks, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>recording industry</dt><dd><dl><dt>artist remuneration in, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>copyright infringement lawsuits of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>copyright protections in, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Internet radio hampered by, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>radio broadcast and, <a class="indexterm" href="#radio">Radio</a>-<a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>statutory license system in, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a></dt></dl></dd><dt>Recording Industry Association of America (RIAA)</dt><dd><dl><dt>copyright infringement lawsuits filed by, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>intimidation tactics of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>lobbying power of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>on Internet radio fees, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>regulation</dt><dd><dl><dt>as establishment protectionism, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>four modalities of, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>outsize penalties of, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>Rehnquist, William H., <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>remote channel changers, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Rensselaer Polytechnic Institute (RPI), <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dd><dl><dt>computer network search engine of, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt></dl></dd><dt>Republican Party, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt>Rise of the Creative Class, The (Florida), <a class="indexterm" href="#idp38896912">«Piracy»</a></dt><dt>Roberts, Michael, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>robotic dog, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Rogers, Fred, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Romeo and Juliet (Shakespeare), <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Rose, Mark, <a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#c-acknowledgments">Acknowledgments</a></dt><dt>RPI (see Rensselaer Polytechnic Institute (RPI))</dt><dt>Rubenfeld, Jeb, <a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>Russel, Phil, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt></dl></div><div class="indexdiv"><h3>S</h3><dl><dt>Safire, William, <a class="indexterm" href="#preface">Preface</a>, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>San Francisco Opera, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Sarnoff, David, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Scalia, Antonin, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Scarlet Letter, The (Hawthorne), <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Schlafly, Phyllis, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>scientific journals, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Scottish publishers, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>search engines, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>Seasons, The (Thomson), <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>semiotic democracy, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>Senate, U.S., <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>September 11, 2001, terrorist attacks of, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Shakespeare, William, <a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>sheet music, <a class="indexterm" href="#idp38896912">«Piracy»</a>, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Silent Spring (Carson), <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Simpsons, The, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>single nucleotied polymorphisms (SNPs), <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Sonny Bono Copyright Term Extension Act (CTEA) (1998), <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dd><dl><dt>Supreme Court challenge of, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt></dl></dd><dt>Sony</dt><dd><dl><dt>Aibo robotic dog produced by, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Betamax technology developed by, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt></dl></dd><dt>Sony Pictures Entertainment, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Sousa, John Philip, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>South Africa, Republic of, pharmaceutical imports by, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>speech, freedom of</dt><dd><dl><dt>constitutional guarantee of, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt></dl></dd><dt>speeding, constraints on, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Stallman, Richard, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Stanford University, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Star Wars, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Statute of Anne (1710), <a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>Statute of Monopolies (1656), <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>statutory damages, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>statutory licenses, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Steamboat Bill, Jr., <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Steamboat Willie, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>steel industry, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Stevens, Ted, <a class="indexterm" href="#preface">Preface</a></dt><dt>Steward, Geoffrey, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Superman comics, <a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>Supreme Court, U.S.</dt><dd><dl><dt>access to opinions of, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>congressional actions restrained by, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>factions of, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>House of Lords vs., <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>on airspace vs. land rights, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>on balance of interests in copyright law, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>on television advertising bans, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt></dl></dd><dt>Sutherland, Donald, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt></dl></div><div class="indexdiv"><h3>T</h3><dl><dt>Talbot, William, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Tatel, David, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Tauzin, Billy, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Taylor, Robert, <a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>technology</dt><dd><dl><dt>copyright enforcement controlled by, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>copyright intent altered by, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>established industries threatened by changes in, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>legal murkiness on, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>television</dt><dd><dl><dt>advertising on, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>-<a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>cable vs. broadcast, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>controversy avoided by, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt></dl></dd><dt>Television Archive, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Thomas, Clarence, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Thomson, James, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>Thurmond, Strom, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Tocqueville, Alexis de, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Tonson, Jacob, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>tort reform, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>Torvalds, Linus, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Turner, Ted, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Twentieth Century Fox, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt></dl></div><div class="indexdiv"><h3>U</h3><dl><dt>United Kingdom</dt><dd><dl><dt>history of copyright law in, <a class="indexterm" href="#founders">Chapter Six: Founders</a>-<a class="indexterm" href="#founders">Chapter Six: Founders</a></dt><dt>public creative archive in, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt></dl></dd><dt>United States Trade Representative (USTR), <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>United States v. Lopez, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>United States v. Morrison, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Universal Music Group, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Universal Pictures, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>university computer networks, p2p sharing on, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>-<a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a></dt><dt>used record sales, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt></dl></div><div class="indexdiv"><h3>V</h3><dl><dt>Vaidhyanathan, Siva, <a class="indexterm" href="#creators">Chapter One: Creators</a>, <a class="indexterm" href="#film">Film</a>, <a class="indexterm" href="#founders">Chapter Six: Founders</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#together">Together</a></dt><dt>Valenti, Jack</dt><dd><dl><dt>background of, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>-<a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Eldred Act opposed by, <a class="indexterm" href="#eldred-ii">Chapter Fourteen: Eldred II</a></dt><dt> on creative property rights, <a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>on VCR technology, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>perpetual copyright term proposed by, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt></dl></dd><dt>Vanderbilt University, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>VCRs, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>venture capitalists, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>veterans' pensions, <a class="indexterm" href="#shortterms">2. Shorter Terms</a></dt><dt>Video Pipeline, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Vivendi Universal, <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>von Lohmann, Fred, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt></dl></div><div class="indexdiv"><h3>W</h3><dl><dt>Wagner, Richard, <a class="indexterm" href="#recorders">Chapter Seven: Recorders</a>-<a class="indexterm" href="#recorders">Chapter Seven: Recorders</a></dt><dt>Warner Brothers, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Warner Music Group, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Warren, Samuel D., <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Way Back Machine, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>Wayner, Peter, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Web sites, domain name registration of, <a class="indexterm" href="#registration">Registration and renewal</a></dt><dt>Web-logs (blogs), <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Webster, Noah, <a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Wellcome Trust, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Wells, H. G., <a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a>-<a class="indexterm" href="#chimera">Chapter Eleven: Chimera</a></dt><dt>White House press releases, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dt>willful infringement, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Windows, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>Winer, Dave, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>Winick, Judd, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>WJOA, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>World Intellectual Property Organization (WIPO), <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>World Summit on the Information Society (WSIS), <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>World Trade Center, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt><dt>World Wide Web, <a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>WorldCom, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>WRC, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Wright brothers, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt></dl></div><div class="indexdiv"><h3>Y</h3><dl><dt>Yanofsky, Dave, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a></dt></dl></div><div class="indexdiv"><h3>Z</h3><dl><dt>Zimmerman, Edwin, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>Zittrain, Jonathan, <a class="indexterm" href="#idp38896912">«Piracy»</a>, <a class="indexterm" href="#lawscope">Law: Scope</a></dt></dl></div></div></div><div class="colophon"><h1 class="title"><a name="idp42815472"></a></h1><p>
12243 Free culture: How big media uses technology and the law to lock down
12244 culture and control creativity / Lawrence Lessig.
12245 </p><p>
12246 Copyright © 2004 Lawrence Lessig.  Some rights reserved.
12247 </p><p>
12248 <a class="ulink" href="http://free-culture.cc/" target="_top">http://free-culture.cc/</a>
12249 </p><p>
12250 Published in English and Norwegian Bokmål 2015 by Petter Reinholdtsen
12251 with help from many volunteers.  Typeset with dblatex using the font
12252 Crimson Text.
12253 </p><p>
12254 First published 2004 by The Penguin Press.
12255 </p><p>
12256 Excerpt from an editorial titled <span class="quote">«<span class="quote">The Coming of Copyright
12257 Perpetuity,</span>»</span> <em class="citetitle">The New York Times</em>, January
12258 16, 2003. Copyright © 2003 by The New York Times Co.  Reprinted
12259 with permission.
12260 </p><p>
12261 Cartoon in figure
12262 <a class="xref" href="#fig-1711-vcr-handgun-cartoonfig" title="Figure 10.18. &#8212; On which item have the courts ruled that manufacturers and retailers be held responsible for having supplied the equipment?">10.18</a> by
12263 Paul Conrad, copyright Tribune Media Services, Inc.  All rights
12264 reserved. Reprinted with permission.
12265 </p><p>
12266 Diagram in figure
12267 <a class="xref" href="#fig-1761-pattern-modern-media-ownership" title="Figure 10.19. ">10.19</a>
12268 courtesy of the office of FCC Commissioner, Michael J. Copps.
12269 </p><p>
12270 Cover created by Petter Reinholdtsen using inkscape.
12271 </p><p>
12272 The quotes on the cover came from
12273 <a class="ulink" href="http://free-culture.cc/jacket/" target="_top">http://free-culture.cc/jacket/</a>.
12274 </p><p>
12275 Portrait on the cover was created 2013 by ActuaLitté and licensed
12276 under a Creative Commons Attribution-ShareAlike 2.0 license.  It was
12277 downloaded from
12278 <a class="ulink" href="https://commons.wikimedia.org/wiki/File%3ALawrence_Lessig_(11014343366)_(cropped).jpg" target="_top">https://commons.wikimedia.org/wiki/File%3ALawrence_Lessig_(11014343366)_(cropped).jpg</a>.
12279 </p><p>
12280 Classifications:
12281 </p><p>
12282 (Dewey)
12283 306.4,
12284 306.40973,
12285 306.46,
12286 341.7582,
12287 343.7309/9
12288 </p><p>
12289 (UDK) 347.78
12290 </p><p>
12291 (US Library of Congress) KF2979.L47 2004
12292 </p><p>
12293 (ACM CRCS) K.4.1
12294 </p><p>
12295 Thomas Gramstad Forlag donated the ISBN numbers.
12296 </p><p>
12297 Printing was sponsed by NUUG Foundation,
12298 <a class="ulink" href="http://www.nuugfoundation.no/" target="_top">http://www.nuugfoundation.no/</a>.
12299 </p><p>
12300 Includes index.
12301 </p><p>
12302 The Docbook source is available from
12303 <a class="ulink" href="https://github.com/petterreinholdtsen/free-culture-lessig" target="_top">https://github.com/petterreinholdtsen/free-culture-lessig</a>.
12304 Please report any issues with the book there.
12305 </p><p>
12306   </p><div class="informalfigure"><a name="cc-logo"></a><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="11%"><tr><td align="center"><img src="images/cc.svg" align="middle" width="100%"></td></tr></table></div></div><p>
12307 </p><p>
12308 This book is licensed under a Creative Commons license. This license
12309 permits non-commercial use of this work, so long as attribution is
12310 given.  For more information about the license visit
12311 <a class="ulink" href="http://creativecommons.org/licenses/by-nc/1.0/" target="_top">http://creativecommons.org/licenses/by-nc/1.0/</a>.
12312 </p><p>
12313 This book is a proof reading draft.  Please visit the github URL above
12314 to get the latest version.
12315 </p><p>
12316 </p><div class="informaltable"><a name="isbn"></a><table border="1"><colgroup><col><col></colgroup><thead><tr><th align="left">Format / MIME-type</th><th align="left">ISBN</th></tr></thead><tbody><tr><td align="left">US Trade edition from lulu.com</td><td align="left">978-82-8067-010-6</td></tr><tr><td align="left">application/pdf</td><td align="left">978-82-8067-011-3</td></tr><tr><td align="left">application/epub+zip</td><td align="left">978-82-8067-012-0</td></tr><tr><td align="left">application/x-mobipocket-ebook</td><td align="left">978-82-8067-013-7</td></tr></tbody></table></div><p>
12317 </p></div></div></body></html>