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   1 <html><head><meta http-equiv="Content-Type" content="text/html; charset=ISO-8859-1"><title>Free Culture</title><meta name="generator" content="DocBook XSL Stylesheets V1.78.1"><meta name="description" content="ABOUT THE AUTHOR LAWRENCE LESSIG (http://www.lessig.org), professor of law and a John A. Wilson Distinguished Faculty Scholar at Stanford Law School, is founder of the Stanford Center for Internet and Society and is chairman of the Creative Commons (http://creativecommons.org). The author of The Future of Ideas (Random House, 2001) and Code: And Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of the boards of the Public Library of Science, the Electronic Frontier Foundation, and Public Knowledge. He was the winner of the Free Software Foundation's Award for the Advancement of Free Software, twice listed in BusinessWeek's e.biz 25, and named one of Scientific American's 50 visionaries. A graduate of the University of Pennsylvania, Cambridge University, and Yale Law School, Lessig clerked for Judge Richard Posner of the U.S. Seventh Circuit Court of Appeals."></head><body bgcolor="white" text="black" link="#0000FF" vlink="#840084" alink="#0000FF"><div lang="en" class="book"><div class="titlepage"><div><div><h1 class="title"><a name="index"></a>Free Culture</h1></div><div><h2 class="subtitle">HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN
   2  CULTURE AND CONTROL CREATIVITY</h2></div><div><div class="authorgroup"><div class="author"><h3 class="author"><span class="firstname">Lawrence</span> <span class="surname">Lessig</span></h3></div></div></div><div><p class="releaseinfo">Version 2004-02-10</p></div><div><p class="copyright">Copyright © 2004 Lawrence Lessig</p></div><div><div class="legalnotice"><a name="idp4002880"></a><p>
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   5 This version of <em class="citetitle">Free Culture</em> is licensed under
   6 a Creative Commons license. This license permits non-commercial use of
   7 this work, so long as attribution is given.  For more information
   8 about the license, click the icon above, or visit
   9 <a class="ulink" href="http://creativecommons.org/licenses/by-nc/1.0/" target="_top">http://creativecommons.org/licenses/by-nc/1.0/</a>
  10    </p></div></div><div><p class="pubdate">2004-03-25</p></div><div><div class="abstract"><p class="title"><b>ABOUT THE AUTHOR</b></p><p>
  11 LAWRENCE LESSIG
  12 (<a class="ulink" href="http://www.lessig.org" target="_top">http://www.lessig.org</a>),
  13 professor of law and a John A. Wilson Distinguished Faculty Scholar
  14 at Stanford Law School, is founder of the Stanford Center for Internet
  15 and Society and is chairman of the Creative Commons
  16 (<a class="ulink" href="http://creativecommons.org" target="_top">http://creativecommons.org</a>).
  17 The author of The Future of Ideas (Random House, 2001) and Code: And
  18 Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of
  19 the boards of the Public Library of Science, the Electronic Frontier
  20 Foundation, and Public Knowledge. He was the winner of the Free
  21 Software Foundation's Award for the Advancement of Free Software,
  22 twice listed in BusinessWeek's <span class="quote">«<span class="quote">e.biz 25,</span>»</span> and named one of Scientific
  23 American's <span class="quote">«<span class="quote">50 visionaries.</span>»</span> A graduate of the University of
  24 Pennsylvania, Cambridge University, and Yale Law School, Lessig
  25 clerked for Judge Richard Posner of the U.S. Seventh Circuit Court of
  26 Appeals.
  27   </p></div></div></div><hr></div><div class="dedication"><div class="titlepage"><div><div><h1 class="title"><a name="alsobylessig"></a></h1></div></div></div><p>
  28 ALSO BY LAWRENCE LESSIG
  29 </p><p>
  30 The Future of Ideas: The Fate of the Commons in a Connected World
  31 </p><p>
  32 Code: And Other Laws of Cyberspace
  33 </p></div><div class="dedication"><div class="titlepage"><div><div><h1 class="title"><a name="idp1098528"></a></h1></div></div></div><p>
  34 To Eric Eldred &#8212; whose work first drew me to this cause, and for whom
  35 it continues still.
  36 </p></div><div class="toc"><dl class="toc"><dt><span class="preface"><a href="#preface">PREFACE</a></span></dt><dt><span class="chapter">0. <a href="#c-introduction">INTRODUCTION</a></span></dt><dt><span class="part">I. <a href="#c-piracy"><span class="quote">«<span class="quote">PIRACY</span>»</span></a></span></dt><dd><dl><dt><span class="chapter">1. <a href="#creators">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">15. <a href="#c-conclusion">CONCLUSION</a></span></dt><dt><span class="chapter">16. <a href="#c-afterword">AFTERWORD</a></span></dt><dd><dl><dt><span class="section">16.1. <a href="#usnow">US, NOW</a></span></dt><dd><dl><dt><span class="section">16.1.1. <a href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></span></dt><dt><span class="section">16.1.2. <a href="#oneidea">Rebuilding Free Culture: One Idea</a></span></dt></dl></dd><dt><span class="section">16.2. <a href="#themsoon">THEM, SOON</a></span></dt><dd><dl><dt><span class="section">16.2.1. <a href="#formalities">1. More Formalities</a></span></dt><dd><dl><dt><span class="section">16.2.1.1. <a href="#registration">REGISTRATION AND RENEWAL</a></span></dt><dt><span class="section">16.2.1.2. <a href="#marking">MARKING</a></span></dt></dl></dd><dt><span class="section">16.2.2. <a href="#shortterms">2. Shorter Terms</a></span></dt><dt><span class="section">16.2.3. <a href="#freefairuse">3. Free Use Vs. Fair Use</a></span></dt><dt><span class="section">16.2.4. <a href="#liberatemusic">4. Liberate the Music&#8212;Again</a></span></dt><dt><span class="section">16.2.5. <a href="#firelawyers">5. Fire Lots of Lawyers</a></span></dt></dl></dd></dl></dd><dt><span class="chapter">17. <a href="#c-notes">NOTES</a></span></dt><dt><span class="chapter">18. <a href="#c-acknowledgments">ACKNOWLEDGMENTS</a></span></dt><dt><span class="index"><a href="#idp10690928">Index</a></span></dt></dl></div><div class="preface"><div class="titlepage"><div><div><h1 class="title"><a name="preface"></a>PREFACE</h1></div></div></div><a class="indexterm" name="idxpoguedavid"></a><p>
  37 <span class="bold"><strong>At the end</strong></span> of his review of my first
  38 book, <em class="citetitle">Code: And Other Laws of Cyberspace</em>, David
  39 Pogue, a brilliant writer and author of countless technical and
  40 computer-related texts, wrote this:
  41 </p><div class="blockquote"><blockquote class="blockquote"><p>
  42 Unlike actual law, Internet software has no capacity to punish. It
  43 doesn't affect people who aren't online (and only a tiny minority
  44 of the world population is). And if you don't like the Internet's
  45 system, you can always flip off the modem.<a href="#ftn.preface01" class="footnote" name="preface01"><sup class="footnote">[1]</sup></a>
  46 </p></blockquote></div><p>
  47 Pogue was skeptical of the core argument of the book&#8212;that
  48 software, or <span class="quote">«<span class="quote">code,</span>»</span> functioned as a kind of law&#8212;and his review
  49 suggested the happy thought that if life in cyberspace got bad, we
  50 could always <span class="quote">«<span class="quote">drizzle, drazzle, druzzle, drome</span>»</span>-like simply flip a
  51 switch and be back home. Turn off the modem, unplug the computer, and
  52 any troubles that exist in <span class="emphasis"><em>that</em></span> space wouldn't
  53 <span class="quote">«<span class="quote">affect</span>»</span> us anymore.
  54 </p><p>
  55 Pogue might have been right in 1999&#8212;I'm skeptical, but maybe.
  56 But even if he was right then, the point is not right now:
  57 <em class="citetitle">Free Culture</em> is about the troubles the Internet
  58 causes even after the modem is turned
  59
  60 off. It is an argument about how the battles that now rage regarding life
  61 on-line have fundamentally affected <span class="quote">«<span class="quote">people who aren't online.</span>»</span> There
  62 is no switch that will insulate us from the Internet's effect.
  63 </p><a class="indexterm" name="idp5154144"></a><p>
  64 But unlike <em class="citetitle">Code</em>, the argument here is not much
  65 about the Internet itself. It is instead about the consequence of the
  66 Internet to a part of our tradition that is much more fundamental,
  67 and, as hard as this is for a geek-wanna-be to admit, much more
  68 important.
  69 </p><p>
  70 That tradition is the way our culture gets made. As I explain in the
  71 pages that follow, we come from a tradition of <span class="quote">«<span class="quote">free culture</span>»</span>&#8212;not
  72 <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
  73 free software movement<a href="#ftn.idp5158016" class="footnote" name="idp5158016"><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>
  74 <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
  75 free culture supports and protects creators and innovators. It does
  76 this directly by granting intellectual property rights. But it does so
  77 indirectly by limiting the reach of those rights, to guarantee that
  78 follow-on creators and innovators remain <span class="emphasis"><em>as free as
  79 possible</em></span> from the control of the past. A free culture is
  80 not a culture without property, just as a free market is not a market
  81 in which everything is free. The opposite of a free culture is a
  82 <span class="quote">«<span class="quote">permission culture</span>»</span>&#8212;a culture in which creators get to create
  83 only with the permission of the powerful, or of creators from the
  84 past.
  85 </p><p>
  86 If we understood this change, I believe we would resist it. Not <span class="quote">«<span class="quote">we</span>»</span>
  87 on the Left or <span class="quote">«<span class="quote">you</span>»</span> on the Right, but we who have no stake in the
  88 particular industries of culture that defined the twentieth century.
  89 Whether you are on the Left or the Right, if you are in this sense
  90 disinterested, then the story I tell here will trouble you. For the
  91 changes I describe affect values that both sides of our political
  92 culture deem fundamental.
  93 </p><a class="indexterm" name="idxpowerconcentrationof"></a><a class="indexterm" name="idp100768"></a><a class="indexterm" name="idp101584"></a><a class="indexterm" name="idp102400"></a><p>
  94 We saw a glimpse of this bipartisan outrage in the early summer of
  95 2003. As the FCC considered changes in media ownership rules that
  96 would relax limits on media concentration, an extraordinary coalition
  97 generated more than 700,000 letters to the FCC opposing the change.
  98 As William Safire described marching <span class="quote">«<span class="quote">uncomfortably alongside CodePink
  99 Women for Peace and the National Rifle Association, between liberal
 100 Olympia Snowe and conservative Ted Stevens,</span>»</span> he formulated perhaps
 101 most simply just what was at stake: the concentration of power. And as
 102 he asked,
 103 </p><div class="blockquote"><blockquote class="blockquote"><p>
 104 Does that sound unconservative? Not to me. The concentration of
 105 power&#8212;political, corporate, media, cultural&#8212;should be anathema to
 106 conservatives. The diffusion of power through local control, thereby
 107 encouraging individual participation, is the essence of federalism and
 108 the greatest expression of democracy.<a href="#ftn.idp97360" class="footnote" name="idp97360"><sup class="footnote">[3]</sup></a>
 109 </p></blockquote></div><p>
 110 This idea is an element of the argument of <em class="citetitle">Free Culture</em>, though my
 111 focus is not just on the concentration of power produced by
 112 concentrations in ownership, but more importantly, if because less
 113 visibly, on the concentration of power produced by a radical change in
 114 the effective scope of the law. The law is changing; that change is
 115 altering the way our culture gets made; that change should worry
 116 you&#8212;whether or not you care about the Internet, and whether you're on
 117 Safire's left or on his right.
 118 </p><a class="indexterm" name="idp6767760"></a><p>
 119 <span class="strong"><strong>The inspiration</strong></span> for the title and for
 120 much of the argument of this book comes from the work of Richard
 121 Stallman and the Free Software Foundation. Indeed, as I reread
 122 Stallman's own work, especially the essays in <em class="citetitle">Free Software, Free
 123 Society</em>, I realize that all of the theoretical insights I develop here
 124 are insights Stallman described decades ago. One could thus well argue
 125 that this work is <span class="quote">«<span class="quote">merely</span>»</span> derivative.
 126 </p><p>
 127 I accept that criticism, if indeed it is a criticism. The work of a
 128 lawyer is always derivative, and I mean to do nothing more in this
 129 book than to remind a culture about a tradition that has always been
 130 its own.  Like Stallman, I defend that tradition on the basis of
 131 values. Like Stallman, I believe those are the values of freedom. And
 132 like Stallman, I believe those are values of our past that will need
 133 to be defended in our future. A free culture has been our past, but it
 134 will only be our future if we change the path we are on right now.
 135
 136
 137 Like Stallman's arguments for free software, an argument for free
 138 culture stumbles on a confusion that is hard to avoid, and even harder
 139 to understand. A free culture is not a culture without property; it is not
 140 a culture in which artists don't get paid. A culture without property, or
 141 in which creators can't get paid, is anarchy, not freedom. Anarchy is not
 142 what I advance here.
 143 </p><p>
 144 Instead, the free culture that I defend in this book is a balance
 145 between anarchy and control. A free culture, like a free market, is
 146 filled with property. It is filled with rules of property and contract
 147 that get enforced by the state. But just as a free market is perverted
 148 if its property becomes feudal, so too can a free culture be queered
 149 by extremism in the property rights that define it. That is what I
 150 fear about our culture today. It is against that extremism that this
 151 book is written.
 152 </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>
 153 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.
 154 </p></div><div id="ftn.idp5158016" class="footnote"><p><a href="#idp5158016" class="para"><sup class="para">[2] </sup></a>
 155 Richard M. Stallman, <em class="citetitle">Free Software, Free Societies</em> 57 (Joshua Gay, ed. 2002).
 156 </p></div><div id="ftn.idp97360" class="footnote"><p><a href="#idp97360" class="para"><sup class="para">[3] </sup></a> William Safire,
 157 <span class="quote">«<span class="quote">The Great Media Gulp,</span>»</span> <em class="citetitle">New York Times</em>, 22 May 2003.
 158 <a class="indexterm" name="idp106720"></a>
 159 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-introduction"></a>Chapter 0. INTRODUCTION</h1></div></div></div><a class="indexterm" name="idxwrightbrothers"></a><p>
 160 <span class="strong"><strong>On December 17</strong></span>, 1903, on a windy North Carolina beach for just
 161 shy of one hundred seconds, the Wright brothers demonstrated that a
 162 heavier-than-air, self-propelled vehicle could fly. The moment was electric
 163 and its importance widely understood. Almost immediately, there
 164 was an explosion of interest in this newfound technology of manned
 165 flight, and a gaggle of innovators began to build upon it.
 166 </p><a class="indexterm" name="idxairtrafficlandownershipvs"></a><a class="indexterm" name="idxlandownershipairtrafficand"></a><a class="indexterm" name="idxpropertyrightsairtrafficvs"></a><p>
 167 At the time the Wright brothers invented the airplane, American
 168 law held that a property owner presumptively owned not just the surface
 169 of his land, but all the land below, down to the center of the earth,
 170 and all the space above, to <span class="quote">«<span class="quote">an indefinite extent, upwards.</span>»</span><a href="#ftn.idp6783104" class="footnote" name="idp6783104"><sup class="footnote">[4]</sup></a>
 171 For many
 172 years, scholars had puzzled about how best to interpret the idea that
 173 rights in land ran to the heavens. Did that mean that you owned the
 174 stars? Could you prosecute geese for their willful and regular trespass?
 175 </p><a class="indexterm" name="idp6784368"></a><p>
 176 Then came airplanes, and for the first time, this principle of American
 177 law&#8212;deep within the foundations of our tradition, and acknowledged
 178 by the most important legal thinkers of our past&#8212;mattered. If
 179 my land reaches to the heavens, what happens when United flies over
 180 my field? Do I have the right to banish it from my property? Am I allowed
 181 to enter into an exclusive license with Delta Airlines? Could we
 182 set up an auction to decide how much these rights are worth?
 183 </p><a class="indexterm" name="idp6786224"></a><a class="indexterm" name="idp6786976"></a><p>
 184 In 1945, these questions became a federal case. When North Carolina
 185 farmers Thomas Lee and Tinie Causby started losing chickens
 186 because of low-flying military aircraft (the terrified chickens apparently
 187 flew into the barn walls and died), the Causbys filed a lawsuit saying
 188 that the government was trespassing on their land. The airplanes,
 189 of course, never touched the surface of the Causbys' land. But if, as
 190 Blackstone, Kent, and Coke had said, their land reached to <span class="quote">«<span class="quote">an indefinite
 191 extent, upwards,</span>»</span> then the government was trespassing on their
 192 property, and the Causbys wanted it to stop.
 193 </p><a class="indexterm" name="idp6789088"></a><a class="indexterm" name="idp6789840"></a><a class="indexterm" name="idxdouglaswilliamo"></a><a class="indexterm" name="idxsupremecourtusonairspacevslandrights"></a><p>
 194 The Supreme Court agreed to hear the Causbys' case. Congress had
 195 declared the airways public, but if one's property really extended to the
 196 heavens, then Congress's declaration could well have been an unconstitutional
 197 <span class="quote">«<span class="quote">taking</span>»</span> of property without compensation. The Court acknowledged
 198 that <span class="quote">«<span class="quote">it is ancient doctrine that common law ownership of
 199 the land extended to the periphery of the universe.</span>»</span> But Justice Douglas
 200 had no patience for ancient doctrine. In a single paragraph, hundreds of
 201 years of property law were erased. As he wrote for the Court,
 202 </p><div class="blockquote"><blockquote class="blockquote"><p>
 203 [The] doctrine has no place in the modern world. The air is a
 204 public highway, as Congress has declared. Were that not true,
 205 every transcontinental flight would subject the operator to countless
 206 trespass suits. Common sense revolts at the idea. To recognize
 207 such private claims to the airspace would clog these highways,
 208 seriously interfere with their control and development in the public
 209 interest, and transfer into private ownership that to which only
 210 the public has a just claim.<a href="#ftn.idp6796000" class="footnote" name="idp6796000"><sup class="footnote">[5]</sup></a>
 211 </p></blockquote></div><p>
 212 <span class="quote">«<span class="quote">Common sense revolts at the idea.</span>»</span>
 213 </p><a class="indexterm" name="idp6801248"></a><p>
 214 This is how the law usually works. Not often this abruptly or
 215 impatiently, but eventually, this is how it works. It was Douglas's style not to
 216 dither. Other justices would have blathered on for pages to reach the
 217
 218 conclusion that Douglas holds in a single line: <span class="quote">«<span class="quote">Common sense revolts
 219 at the idea.</span>»</span> But whether it takes pages or a few words, it is the special
 220 genius of a common law system, as ours is, that the law adjusts to the
 221 technologies of the time. And as it adjusts, it changes. Ideas that were
 222 as solid as rock in one age crumble in another.
 223 </p><a class="indexterm" name="idp6804224"></a><a class="indexterm" name="idp6805008"></a><a class="indexterm" name="idp6805824"></a><p>
 224 Or at least, this is how things happen when there's no one powerful
 225 on the other side of the change. The Causbys were just farmers. And
 226 though there were no doubt many like them who were upset by the
 227 growing traffic in the air (though one hopes not many chickens flew
 228 themselves into walls), the Causbys of the world would find it very
 229 hard to unite and stop the idea, and the technology, that the Wright
 230 brothers had birthed. The Wright brothers spat airplanes into the
 231 technological meme pool; the idea then spread like a virus in a chicken
 232 coop; farmers like the Causbys found themselves surrounded by <span class="quote">«<span class="quote">what
 233 seemed reasonable</span>»</span> given the technology that the Wrights had produced.
 234 They could stand on their farms, dead chickens in hand, and
 235 shake their fists at these newfangled technologies all they wanted.
 236 They could call their representatives or even file a lawsuit. But in the
 237 end, the force of what seems <span class="quote">«<span class="quote">obvious</span>»</span> to everyone else&#8212;the power of
 238 <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
 239 allowed to defeat an obvious public gain.
 240 </p><a class="indexterm" name="idp6809712"></a><a class="indexterm" name="idp6811040"></a><a class="indexterm" name="idp6812384"></a><a class="indexterm" name="idp6813360"></a><a class="indexterm" name="idxarmstrongedwinhoward"></a><a class="indexterm" name="idp6815568"></a><a class="indexterm" name="idp6816320"></a><a class="indexterm" name="idp6817072"></a><a class="indexterm" name="idxradiofmspectrumof"></a><p>
 241 <span class="strong"><strong>Edwin Howard Armstrong</strong></span> is one of
 242 America's forgotten inventor geniuses. He came to the great American
 243 inventor scene just after the titans Thomas Edison and Alexander
 244 Graham Bell. But his work in the area of radio technology was perhaps
 245 the most important of any single inventor in the first fifty years of
 246 radio. He was better educated than Michael Faraday, who as a
 247 bookbinder's apprentice had discovered electric induction in 1831. But
 248 he had the same intuition about how the world of radio worked, and on
 249 at least three occasions, Armstrong invented profoundly important
 250 technologies that advanced our understanding of radio.
 251
 252 </p><p>
 253 On the day after Christmas, 1933, four patents were issued to Armstrong
 254 for his most significant invention&#8212;FM radio. Until then, consumer radio
 255 had been amplitude-modulated (AM) radio. The theorists
 256 of the day had said that frequency-modulated (FM) radio could never
 257 work. They were right about FM radio in a narrow band of spectrum.
 258 But Armstrong discovered that frequency-modulated radio in a wide
 259 band of spectrum would deliver an astonishing fidelity of sound, with
 260 much less transmitter power and static.
 261 </p><p>
 262 On November 5, 1935, he demonstrated the technology at a meeting of
 263 the Institute of Radio Engineers at the Empire State Building in New
 264 York City. He tuned his radio dial across a range of AM stations,
 265 until the radio locked on a broadcast that he had arranged from
 266 seventeen miles away. The radio fell totally silent, as if dead, and
 267 then with a clarity no one else in that room had ever heard from an
 268 electrical device, it produced the sound of an announcer's voice:
 269 <span class="quote">«<span class="quote">This is amateur station W2AG at Yonkers, New York, operating on
 270 frequency modulation at two and a half meters.</span>»</span>
 271 </p><p>
 272 The audience was hearing something no one had thought possible:
 273 </p><div class="blockquote"><blockquote class="blockquote"><p>
 274 A glass of water was poured before the microphone in Yonkers; it
 275 sounded like a glass of water being poured. &#8230; A paper was crumpled
 276 and torn; it sounded like paper and not like a crackling forest
 277 fire. &#8230; Sousa marches were played from records and a piano solo
 278 and guitar number were performed. &#8230; The music was projected with a
 279 live-ness rarely if ever heard before from a radio <span class="quote">«<span class="quote">music
 280 box.</span>»</span><a href="#ftn.idm82656" class="footnote" name="idm82656"><sup class="footnote">[6]</sup></a>
 281 </p></blockquote></div><a class="indexterm" name="idxrca"></a><a class="indexterm" name="idxmediaownershipconcentrationin"></a><p>
 282 As our own common sense tells us, Armstrong had discovered a vastly
 283 superior radio technology. But at the time of his invention, Armstrong
 284 was working for RCA. RCA was the dominant player in the then dominant
 285 AM radio market. By 1935, there were a thousand radio stations across
 286 the United States, but the stations in large cities were all owned by
 287 a handful of networks.
 288
 289 </p><a class="indexterm" name="idp6838896"></a><p>
 290 RCA's president, David Sarnoff, a friend of Armstrong's, was eager
 291 that Armstrong discover a way to remove static from AM radio. So
 292 Sarnoff was quite excited when Armstrong told him he had a device
 293 that removed static from <span class="quote">«<span class="quote">radio.</span>»</span> But when Armstrong demonstrated
 294 his invention, Sarnoff was not pleased.
 295 </p><div class="blockquote"><blockquote class="blockquote"><p>
 296 I thought Armstrong would invent some kind of a filter to remove
 297 static from our AM radio. I didn't think he'd start a
 298 revolution&#8212; start up a whole damn new industry to compete with
 299 RCA.<a href="#ftn.idp6821584" class="footnote" name="idp6821584"><sup class="footnote">[7]</sup></a>
 300 </p></blockquote></div><a class="indexterm" name="idxfmradio"></a><a class="indexterm" name="idp6844400"></a><p>
 301 Armstrong's invention threatened RCA's AM empire, so the company
 302 launched a campaign to smother FM radio. While FM may have been a
 303 superior technology, Sarnoff was a superior tactician.  As one author
 304 described,
 305 </p><a class="indexterm" name="idxlessinglawrence"></a><div class="blockquote"><blockquote class="blockquote"><p>
 306 The forces for FM, largely engineering, could not overcome the weight
 307 of strategy devised by the sales, patent, and legal offices to subdue
 308 this threat to corporate position. For FM, if allowed to develop
 309 unrestrained, posed &#8230; a complete reordering of radio power
 310 &#8230; and the eventual overthrow of the carefully restricted AM system
 311 on which RCA had grown to power.<a href="#ftn.idp6847744" class="footnote" name="idp6847744"><sup class="footnote">[8]</sup></a>
 312 </p></blockquote></div><a class="indexterm" name="idxfcconfmradio"></a><p>
 313 RCA at first kept the technology in house, insisting that further
 314 tests were needed. When, after two years of testing, Armstrong grew
 315 impatient, RCA began to use its power with the government to stall
 316 FM radio's deployment generally. In 1936, RCA hired the former head
 317 of the FCC and assigned him the task of assuring that the FCC assign
 318 spectrum in a way that would castrate FM&#8212;principally by moving FM
 319 radio to a different band of spectrum. At first, these efforts failed. But
 320 when Armstrong and the nation were distracted by World War II,
 321 RCA's work began to be more successful. Soon after the war ended, the
 322 FCC announced a set of policies that would have one clear effect: FM
 323 radio would be crippled. As Lawrence Lessing described it,
 324 </p><div class="blockquote"><blockquote class="blockquote"><p>
 325 The series of body blows that FM radio received right after the
 326 war, in a series of rulings manipulated through the FCC by the
 327 big radio interests, were almost incredible in their force and
 328 deviousness.<a href="#ftn.idp6852416" class="footnote" name="idp6852416"><sup class="footnote">[9]</sup></a>
 329 </p></blockquote></div><a class="indexterm" name="idp6853184"></a><a class="indexterm" name="idp6854048"></a><p>
 330 To make room in the spectrum for RCA's latest gamble, television,
 331 FM radio users were to be moved to a totally new spectrum band. The
 332 power of FM radio stations was also cut, meaning FM could no longer
 333 be used to beam programs from one part of the country to another.
 334 (This change was strongly supported by AT&amp;T, because the loss of
 335 FM relaying stations would mean radio stations would have to buy
 336 wired links from AT&amp;T.) The spread of FM radio was thus choked, at
 337 least temporarily.
 338 </p><a class="indexterm" name="idp6855824"></a><a class="indexterm" name="idp6856800"></a><p>
 339 Armstrong resisted RCA's efforts. In response, RCA resisted
 340 Armstrong's patents. After incorporating FM technology into the
 341 emerging standard for television, RCA declared the patents
 342 invalid&#8212;baselessly, and almost fifteen years after they were
 343 issued. It thus refused to pay him royalties. For six years, Armstrong
 344 fought an expensive war of litigation to defend the patents. Finally,
 345 just as the patents expired, RCA offered a settlement so low that it
 346 would not even cover Armstrong's lawyers' fees. Defeated, broken, and
 347 now broke, in 1954 Armstrong wrote a short note to his wife and then
 348 stepped out of a thirteenth-story window to his death.
 349 </p><a class="indexterm" name="idp6858032"></a><a class="indexterm" name="idp6859888"></a><a class="indexterm" name="idp6860864"></a><a class="indexterm" name="idp6861616"></a><p>
 350 This is how the law sometimes works. Not often this tragically, and
 351 rarely with heroic drama, but sometimes, this is how it works. From
 352 the beginning, government and government agencies have been subject to
 353 capture. They are more likely captured when a powerful interest is
 354 threatened by either a legal or technical change. That powerful
 355 interest too often exerts its influence within the government to get
 356 the government to protect it. The rhetoric of this protection is of
 357 course always public spirited; the reality is something
 358 different. Ideas that were as solid as rock in one age, but that, left
 359 to themselves, would crumble in
 360
 361 another, are sustained through this subtle corruption of our political
 362 process. RCA had what the Causbys did not: the power to stifle the
 363 effect of technological change.
 364 </p><a class="indexterm" name="idp6863856"></a><a class="indexterm" name="idp6864832"></a><a class="indexterm" name="idxinternetdevelopmentof"></a><p>
 365 <span class="strong"><strong>There's no</strong></span> single inventor of the Internet. Nor is there any good date
 366 upon which to mark its birth. Yet in a very short time, the Internet
 367 has become part of ordinary American life. According to the Pew
 368 Internet and American Life Project, 58 percent of Americans had access
 369 to the Internet in 2002, up from 49 percent two years
 370 before.<a href="#ftn.idp6868512" class="footnote" name="idp6868512"><sup class="footnote">[10]</sup></a>
 371 That number could well exceed two thirds of the nation by the end
 372 of 2004.
 373 </p><p>
 374 As the Internet has been integrated into ordinary life, it has
 375 changed things. Some of these changes are technical&#8212;the Internet has
 376 made communication faster, it has lowered the cost of gathering data,
 377 and so on. These technical changes are not the focus of this book. They
 378 are important. They are not well understood. But they are the sort of
 379 thing that would simply go away if we all just switched the Internet off.
 380 They don't affect people who don't use the Internet, or at least they
 381 don't affect them directly. They are the proper subject of a book about
 382 the Internet. But this is not a book about the Internet.
 383 </p><p>
 384 Instead, this book is about an effect of the Internet beyond the
 385 Internet itself: an effect upon how culture is made. My claim is that
 386 the Internet has induced an important and unrecognized change in that
 387 process. That change will radically transform a tradition that is as
 388 old as the Republic itself. Most, if they recognized this change,
 389 would reject it. Yet most don't even see the change that the Internet
 390 has introduced.
 391 </p><a class="indexterm" name="idp6872320"></a><a class="indexterm" name="idp6873296"></a><a class="indexterm" name="idxculturecommercialvsnoncommercial"></a><a class="indexterm" name="idp6875536"></a><p>
 392 We can glimpse a sense of this change by distinguishing between
 393 commercial and noncommercial culture, and by mapping the law's
 394 regulation of each. By <span class="quote">«<span class="quote">commercial culture</span>»</span> I mean that part of our
 395 culture that is produced and sold or produced to be sold. By
 396 <span class="quote">«<span class="quote">noncommercial culture</span>»</span> I mean all the rest. When old men sat around
 397 parks or on
 398
 399 street corners telling stories that kids and others consumed, that was
 400 noncommercial culture. When Noah Webster published his <span class="quote">«<span class="quote">Reader,</span>»</span> or
 401 Joel Barlow his poetry, that was commercial culture.
 402 </p><p>
 403 At the beginning of our history, and for just about the whole of our
 404 tradition, noncommercial culture was essentially unregulated. Of
 405 course, if your stories were lewd, or if your song disturbed the
 406 peace, then the law might intervene. But the law was never directly
 407 concerned with the creation or spread of this form of culture, and it
 408 left this culture <span class="quote">«<span class="quote">free.</span>»</span> The ordinary ways in which ordinary
 409 individuals shared and transformed their culture&#8212;telling
 410 stories, reenacting scenes from plays or TV, participating in fan
 411 clubs, sharing music, making tapes&#8212;were left alone by the law.
 412 </p><a class="indexterm" name="idxcopyrightinfringementlawsuitscommercialcreativityasprimarypurposeof"></a><p>
 413 The focus of the law was on commercial creativity. At first slightly,
 414 then quite extensively, the law protected the incentives of creators by
 415 granting them exclusive rights to their creative work, so that they could
 416 sell those exclusive rights in a commercial
 417 marketplace.<a href="#ftn.idp6882224" class="footnote" name="idp6882224"><sup class="footnote">[11]</sup></a>
 418 This is also, of course, an important part of creativity and culture,
 419 and it has become an increasingly important part in America. But in no
 420 sense was it dominant within our tradition. It was instead just one
 421 part, a controlled part, balanced with the free.
 422 </p><a class="indexterm" name="idp6884880"></a><a class="indexterm" name="idp6885888"></a><p>
 423 This rough divide between the free and the controlled has now
 424 been erased.<a href="#ftn.idp6887152" class="footnote" name="idp6887152"><sup class="footnote">[12]</sup></a>
 425 The Internet has set the stage for this erasure and, pushed by big
 426 media, the law has now affected it. For the first time in our
 427 tradition, the ordinary ways in which individuals create and share
 428 culture fall within the reach of the regulation of the law, which has
 429 expanded to draw within its control a vast amount of culture and
 430 creativity that it never reached before. The technology that preserved
 431 the balance of our history&#8212;between uses of our culture that were
 432 free and uses of our culture that were only upon permission&#8212;has
 433 been undone.  The consequence is that we are less and less a free
 434 culture, more and more a permission culture.
 435 </p><a class="indexterm" name="idp6889088"></a><a class="indexterm" name="idp6890656"></a><a class="indexterm" name="idp6891408"></a><p>
 436 This change gets justified as necessary to protect commercial
 437 creativity.  And indeed, protectionism is precisely its
 438 motivation. But the protectionism that justifies the changes that I
 439 will describe below is not the limited and balanced sort that has
 440 defined the law in the past. This is not a protectionism to protect
 441 artists. It is instead a protectionism to protect certain forms of
 442 business. Corporations threatened by the potential of the Internet to
 443 change the way both commercial and noncommercial culture are made and
 444 shared have united to induce lawmakers to use the law to protect
 445 them. It is the story of RCA and Armstrong; it is the dream of the
 446 Causbys.
 447 </p><a class="indexterm" name="idp6893232"></a><p>
 448 For the Internet has unleashed an extraordinary possibility for many
 449 to participate in the process of building and cultivating a culture
 450 that reaches far beyond local boundaries. That power has changed the
 451 marketplace for making and cultivating culture generally, and that
 452 change in turn threatens established content industries. The Internet
 453 is thus to the industries that built and distributed content in the
 454 twentieth century what FM radio was to AM radio, or what the truck was
 455 to the railroad industry of the nineteenth century: the beginning of
 456 the end, or at least a substantial transformation. Digital
 457 technologies, tied to the Internet, could produce a vastly more
 458 competitive and vibrant market for building and cultivating culture;
 459 that market could include a much wider and more diverse range of
 460 creators; those creators could produce and distribute a much more
 461 vibrant range of creativity; and depending upon a few important
 462 factors, those creators could earn more on average from this system
 463 than creators do today&#8212;all so long as the RCAs of our day don't
 464 use the law to protect themselves against this competition.
 465 </p><p>
 466 Yet, as I argue in the pages that follow, that is precisely what is
 467 happening in our culture today. These modern-day equivalents of the
 468 early twentieth-century radio or nineteenth-century railroads are
 469 using their power to get the law to protect them against this new,
 470 more efficient, more vibrant technology for building culture. They are
 471 succeeding in their plan to remake the Internet before the Internet
 472 remakes them.
 473 </p><a class="indexterm" name="idp6895440"></a><a class="indexterm" name="idp6897792"></a><p>
 474 It doesn't seem this way to many. The battles over copyright and the
 475
 476 Internet seem remote to most. To the few who follow them, they seem
 477 mainly about a much simpler brace of questions&#8212;whether <span class="quote">«<span class="quote">piracy</span>»</span> will
 478 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
 479 has been waged against the technologies of the Internet&#8212;what
 480 Motion Picture Association of America (MPAA) president Jack Valenti
 481 calls his <span class="quote">«<span class="quote">own terrorist war</span>»</span><a href="#ftn.idp6901024" class="footnote" name="idp6901024"><sup class="footnote">[13]</sup></a>&#8212;has been framed as a battle about the
 482 rule of law and respect for property. To know which side to take in this
 483 war, most think that we need only decide whether we're for property or
 484 against it.
 485 </p><p>
 486 If those really were the choices, then I would be with Jack Valenti
 487 and the content industry. I, too, am a believer in property, and
 488 especially in the importance of what Mr. Valenti nicely calls
 489 <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
 490 law, properly tuned, should punish <span class="quote">«<span class="quote">piracy,</span>»</span> whether on or off the
 491 Internet.
 492 </p><p>
 493 But those simple beliefs mask a much more fundamental question
 494 and a much more dramatic change. My fear is that unless we come to see
 495 this change, the war to rid the world of Internet <span class="quote">«<span class="quote">pirates</span>»</span> will also rid our
 496 culture of values that have been integral to our tradition from the start.
 497 </p><a class="indexterm" name="idp6905680"></a><a class="indexterm" name="idp6906688"></a><a class="indexterm" name="idp6907696"></a><a class="indexterm" name="idp6908448"></a><p>
 498 These values built a tradition that, for at least the first 180 years of
 499 our Republic, guaranteed creators the right to build freely upon their
 500 past, and protected creators and innovators from either state or private
 501 control. The First Amendment protected creators against state control.
 502 And as Professor Neil Netanel powerfully argues,<a href="#ftn.idp6909808" class="footnote" name="idp6909808"><sup class="footnote">[14]</sup></a>
 503 copyright law, properly balanced, protected creators against private
 504 control. Our tradition was thus neither Soviet nor the tradition of
 505 patrons. It instead carved out a wide berth within which creators
 506 could cultivate and extend our culture.
 507 </p><p>
 508 Yet the law's response to the Internet, when tied to changes in the
 509 technology of the Internet itself, has massively increased the
 510 effective regulation of creativity in America. To build upon or
 511 critique the culture around us one must ask, Oliver Twist&#8211;like,
 512 for permission first.  Permission is, of course, often
 513 granted&#8212;but it is not often granted to the critical or the
 514 independent. We have built a kind of cultural nobility; those within
 515 the noble class live easily; those outside it don't. But it is
 516 nobility of any form that is alien to our tradition.
 517 </p><p>
 518 The story that follows is about this war. It is not about the
 519 <span class="quote">«<span class="quote">centrality of technology</span>»</span> to ordinary life. I don't believe in gods,
 520 digital or otherwise. Nor is it an effort to demonize any individual
 521 or group, for neither do I believe in a devil, corporate or
 522 otherwise. It is not a morality tale. Nor is it a call to jihad
 523 against an industry.
 524 </p><p>
 525 It is instead an effort to understand a hopelessly destructive war
 526 inspired by the technologies of the Internet but reaching far beyond
 527 its code. And by understanding this battle, it is an effort to map
 528 peace.  There is no good reason for the current struggle around
 529 Internet technologies to continue. There will be great harm to our
 530 tradition and culture if it is allowed to continue unchecked. We must
 531 come to understand the source of this war. We must resolve it soon.
 532 </p><a class="indexterm" name="idp6915712"></a><a class="indexterm" name="idp6916464"></a><a class="indexterm" name="idxintellectualpropertyrights"></a><p>
 533 <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
 534 property of this war is not as tangible as the Causbys', and no
 535 innocent chicken has yet to lose its life. Yet the ideas surrounding
 536 this <span class="quote">«<span class="quote">property</span>»</span> are as obvious to most as the Causbys' claim about the
 537 sacredness of their farm was to them. We are the Causbys. Most of us
 538 take for granted the extraordinarily powerful claims that the owners
 539 of <span class="quote">«<span class="quote">intellectual property</span>»</span> now assert. Most of us, like the Causbys,
 540 treat these claims as obvious. And hence we, like the Causbys, object
 541 when a new technology interferes with this property. It is as plain to
 542 us as it was to them that the new technologies of the Internet are
 543 <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
 544 us as it was to them that the law should intervene to stop this
 545 trespass.
 546 </p><a class="indexterm" name="idp6922128"></a><a class="indexterm" name="idp6922880"></a><a class="indexterm" name="idp6923632"></a><p>
 547 And thus, when geeks and technologists defend their Armstrong or
 548 Wright brothers technology, most of us are simply unsympathetic.
 549 Common sense does not revolt. Unlike in the case of the unlucky
 550 Causbys, common sense is on the side of the property owners in this
 551 war. Unlike
 552
 553 the lucky Wright brothers, the Internet has not inspired a revolution
 554 on its side.
 555 </p><a class="indexterm" name="idp6925312"></a><p>
 556 My hope is to push this common sense along. I have become increasingly
 557 amazed by the power of this idea of intellectual property and, more
 558 importantly, its power to disable critical thought by policy makers
 559 and citizens. There has never been a time in our history when more of
 560 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
 561 been a time when the concentration of power to control the
 562 <span class="emphasis"><em>uses</em></span> of culture has been as unquestioningly
 563 accepted as it is now.
 564 </p><p>
 565 The puzzle is, Why?  Is it because we have come to understand a truth
 566 about the value and importance of absolute property over ideas and
 567 culture? Is it because we have discovered that our tradition of
 568 rejecting such an absolute claim was wrong?
 569 </p><p>
 570 Or is it because the idea of absolute property over ideas and culture
 571 benefits the RCAs of our time and fits our own unreflective intuitions?
 572 </p><p>
 573 Is the radical shift away from our tradition of free culture an instance
 574 of America correcting a mistake from its past, as we did after a bloody
 575 war with slavery, and as we are slowly doing with inequality? Or is the
 576 radical shift away from our tradition of free culture yet another example
 577 of a political system captured by a few powerful special interests?
 578 </p><p>
 579 Does common sense lead to the extremes on this question because common
 580 sense actually believes in these extremes? Or does common sense stand
 581 silent in the face of these extremes because, as with Armstrong versus
 582 RCA, the more powerful side has ensured that it has the more powerful
 583 view?
 584 </p><a class="indexterm" name="idp6930736"></a><a class="indexterm" name="idp6931488"></a><p>
 585 I don't mean to be mysterious. My own views are resolved. I believe it
 586 was right for common sense to revolt against the extremism of the
 587 Causbys. I believe it would be right for common sense to revolt
 588 against the extreme claims made today on behalf of <span class="quote">«<span class="quote">intellectual
 589 property.</span>»</span>  What the law demands today is increasingly as silly as a
 590 sheriff arresting an airplane for trespass. But the consequences of
 591 this silliness will be much more profound.
 592
 593 </p><a class="indexterm" name="idp6933728"></a><p>
 594 <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
 595 <span class="quote">«<span class="quote">property.</span>»</span> My aim in this book's next two parts is to explore these two
 596 ideas.
 597 </p><p>
 598 My method is not the usual method of an academic. I don't want to
 599 plunge you into a complex argument, buttressed with references to
 600 obscure French theorists&#8212;however natural that is for the weird
 601 sort we academics have become. Instead I begin in each part with a
 602 collection of stories that set a context within which these apparently
 603 simple ideas can be more fully understood.
 604 </p><p>
 605 The two sections set up the core claim of this book: that while the
 606 Internet has indeed produced something fantastic and new, our
 607 government, pushed by big media to respond to this <span class="quote">«<span class="quote">something new,</span>»</span> is
 608 destroying something very old. Rather than understanding the changes
 609 the Internet might permit, and rather than taking time to let <span class="quote">«<span class="quote">common
 610 sense</span>»</span> resolve how best to respond, we are allowing those most
 611 threatened by the changes to use their power to change the
 612 law&#8212;and more importantly, to use their power to change something
 613 fundamental about who we have always been.
 614 </p><p>
 615 We allow this, I believe, not because it is right, and not because
 616 most of us really believe in these changes. We allow it because the
 617 interests most threatened are among the most powerful players in our
 618 depressingly compromised process of making law. This book is the story
 619 of one more consequence of this form of corruption&#8212;a consequence
 620 to which most of us remain oblivious.
 621 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp6783104" class="footnote"><p><a href="#idp6783104" class="para"><sup class="para">[4] </sup></a>
 622 St. George Tucker, <em class="citetitle">Blackstone's Commentaries</em> 3 (South Hackensack, N.J.:
 623 Rothman Reprints, 1969), 18.
 624 </p></div><div id="ftn.idp6796000" class="footnote"><p><a href="#idp6796000" class="para"><sup class="para">[5] </sup></a>
 625 United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find
 626 that there could be a <span class="quote">«<span class="quote">taking</span>»</span> if the government's use of its land
 627 effectively destroyed the value of the Causbys' land. This example was
 628 suggested to me by Keith Aoki's wonderful piece, <span class="quote">«<span class="quote">(Intellectual)
 629 Property and Sovereignty: Notes Toward a Cultural Geography of
 630 Authorship,</span>»</span> <em class="citetitle">Stanford Law Review</em> 48 (1996): 1293, 1333. See also Paul
 631 Goldstein, <em class="citetitle">Real Property</em> (Mineola, N.Y.: Foundation Press, 1984),
 632 1112&#8211;13.
 633 <a class="indexterm" name="idp6799344"></a>
 634 <a class="indexterm" name="idp6798960"></a>
 635 </p></div><div id="ftn.idm82656" class="footnote"><p><a href="#idm82656" class="para"><sup class="para">[6] </sup></a>
 636 Lawrence Lessing, <em class="citetitle">Man of High Fidelity: Edwin Howard Armstrong</em>
 637 (Philadelphia: J. B. Lipincott Company, 1956), 209.
 638 </p></div><div id="ftn.idp6821584" class="footnote"><p><a href="#idp6821584" class="para"><sup class="para">[7] </sup></a> See <span class="quote">«<span class="quote">Saints: The Heroes and Geniuses of the
 639 Electronic Era,</span>»</span> First Electronic Church of America, at
 640 www.webstationone.com/fecha, available at
 641
 642 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #1</a>.
 643 </p></div><div id="ftn.idp6847744" class="footnote"><p><a href="#idp6847744" class="para"><sup class="para">[8] </sup></a>Lessing, 226.
 644 </p></div><div id="ftn.idp6852416" class="footnote"><p><a href="#idp6852416" class="para"><sup class="para">[9] </sup></a>
 645 Lessing, 256.
 646 </p></div><div id="ftn.idp6868512" class="footnote"><p><a href="#idp6868512" class="para"><sup class="para">[10] </sup></a>
 647 Amanda Lenhart, <span class="quote">«<span class="quote">The Ever-Shifting Internet Population: A New Look at
 648 Internet Access and the Digital Divide,</span>»</span> Pew Internet and American
 649 Life Project, 15 April 2003: 6, available at
 650 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #2</a>.
 651 </p></div><div id="ftn.idp6882224" class="footnote"><p><a href="#idp6882224" class="para"><sup class="para">[11] </sup></a>
 652 This is not the only purpose of copyright, though it is the overwhelmingly
 653 primary purpose of the copyright established in the federal constitution.
 654 State copyright law historically protected not just the commercial interest in
 655 publication, but also a privacy interest. By granting authors the exclusive
 656 right to first publication, state copyright law gave authors the power to
 657 control the spread of facts about them. See Samuel D. Warren and Louis
 658 D. Brandeis, <span class="quote">«<span class="quote">The Right to Privacy,</span>»</span> Harvard Law Review 4 (1890): 193,
 659 198&#8211;200.
 660 <a class="indexterm" name="idp6799216"></a>
 661 </p></div><div id="ftn.idp6887152" class="footnote"><p><a href="#idp6887152" class="para"><sup class="para">[12] </sup></a>
 662 See Jessica Litman, <em class="citetitle">Digital Copyright</em> (New York: Prometheus Books,
 663 2001), ch. 13.
 664 <a class="indexterm" name="idp6887920"></a>
 665 </p></div><div id="ftn.idp6901024" class="footnote"><p><a href="#idp6901024" class="para"><sup class="para">[13] </sup></a>
 666 Amy Harmon, <span class="quote">«<span class="quote">Black Hawk Download: Moving Beyond Music, Pirates
 667 Use New Tools to Turn the Net into an Illicit Video Club,</span>»</span> <em class="citetitle">New York
 668 Times</em>, 17 January 2002.
 669 </p></div><div id="ftn.idp6909808" class="footnote"><p><a href="#idp6909808" class="para"><sup class="para">[14] </sup></a>
 670 Neil W. Netanel, <span class="quote">«<span class="quote">Copyright and a Democratic Civil Society,</span>»</span> <em class="citetitle">Yale Law
 671 Journal</em> 106 (1996): 283.
 672 <a class="indexterm" name="idp6911088"></a>
 673 </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="idp6941888"></a><a class="indexterm" name="idxmansfieldwilliammurraylord"></a><a class="indexterm" name="idp6944128"></a><a class="indexterm" name="idp6944880"></a><p>
 674 <span class="strong"><strong>Since the inception</strong></span> of the law regulating creative property, there has
 675 been a war against <span class="quote">«<span class="quote">piracy.</span>»</span> The precise contours of this concept,
 676 <span class="quote">«<span class="quote">piracy,</span>»</span> are hard to sketch, but the animating injustice is easy to
 677 capture.  As Lord Mansfield wrote in a case that extended the reach of
 678 English copyright law to include sheet music,
 679 </p><div class="blockquote"><blockquote class="blockquote"><p>
 680 A person may use the copy by playing it, but he has no right to
 681 rob the author of the profit, by multiplying copies and disposing
 682 of them for his own use.<a href="#ftn.idp6948368" class="footnote" name="idp6948368"><sup class="footnote">[15]</sup></a>
 683 </p><a class="indexterm" name="idp6950032"></a></blockquote></div><a class="indexterm" name="idp6951136"></a><a class="indexterm" name="idxpeertopeerppfilesharingefficiencyof"></a><p>
 684 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
 685 Internet has provoked this war. The Internet makes possible the
 686 efficient spread of content. Peer-to-peer (p2p) file sharing is among
 687 the most efficient of the efficient technologies the Internet
 688 enables. Using distributed intelligence, p2p systems facilitate the
 689 easy spread of content in a way unimagined a generation ago.
 690
 691 </p><p>
 692 This efficiency does not respect the traditional lines of copyright.
 693 The network doesn't discriminate between the sharing of copyrighted
 694 and uncopyrighted content. Thus has there been a vast amount of
 695 sharing of copyrighted content. That sharing in turn has excited the
 696 war, as copyright owners fear the sharing will <span class="quote">«<span class="quote">rob the author of the
 697 profit.</span>»</span>
 698 </p><a class="indexterm" name="idp6956496"></a><p>
 699 The warriors have turned to the courts, to the legislatures, and
 700 increasingly to technology to defend their <span class="quote">«<span class="quote">property</span>»</span> against this
 701 <span class="quote">«<span class="quote">piracy.</span>»</span>  A generation of Americans, the warriors warn, is being
 702 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,
 703 never mind body piercing&#8212;our kids are becoming
 704 <span class="emphasis"><em>thieves</em></span>!
 705 </p><p>
 706 There's no doubt that <span class="quote">«<span class="quote">piracy</span>»</span> is wrong, and that pirates should be
 707 punished. But before we summon the executioners, we should put this
 708 notion of <span class="quote">«<span class="quote">piracy</span>»</span> in some context. For as the concept is increasingly
 709 used, at its core is an extraordinary idea that is almost certainly wrong.
 710 </p><p>
 711 The idea goes something like this:
 712 </p><div class="blockquote"><blockquote class="blockquote"><p>
 713 Creative work has value; whenever I use, or take, or build upon
 714 the creative work of others, I am taking from them something of
 715 value. Whenever I take something of value from someone else, I
 716 should have their permission. The taking of something of value
 717 from someone else without permission is wrong. It is a form of
 718 piracy.
 719 </p></blockquote></div><a class="indexterm" name="idp6962992"></a><a class="indexterm" name="idp6963744"></a><a class="indexterm" name="idp6964496"></a><a class="indexterm" name="idxcreativepropertyifvaluethenrighttheoryof"></a><a class="indexterm" name="idxifvaluethenrighttheory"></a><p>
 720 This view runs deep within the current debates. It is what NYU law
 721 professor Rochelle Dreyfuss criticizes as the <span class="quote">«<span class="quote">if value, then right</span>»</span>
 722 theory of creative property<a href="#ftn.idp6969248" class="footnote" name="idp6969248"><sup class="footnote">[16]</sup></a>
 723 &#8212;if there is value, then someone must have a
 724 right to that value. It is the perspective that led a composers' rights
 725 organization, ASCAP, to sue the Girl Scouts for failing to pay for the
 726 songs that girls sang around Girl Scout campfires.<a href="#ftn.idp6959488" class="footnote" name="idp6959488"><sup class="footnote">[17]</sup></a>
 727 There was <span class="quote">«<span class="quote">value</span>»</span> (the songs) so there must have been a
 728 <span class="quote">«<span class="quote">right</span>»</span>&#8212;even against the Girl Scouts.
 729 </p><a class="indexterm" name="idp6975872"></a><p>
 730 This idea is certainly a possible understanding of how creative
 731 property should work. It might well be a possible design for a system
 732
 733 of law protecting creative property. But the <span class="quote">«<span class="quote">if value, then right</span>»</span>
 734 theory of creative property has never been America's theory of
 735 creative property.  It has never taken hold within our law.
 736 </p><a class="indexterm" name="idp6978160"></a><a class="indexterm" name="idxcopyrightlawonrepublishingvstransformationoforiginalwork"></a><a class="indexterm" name="idxcreativitylegalrestrictionson"></a><p>
 737 Instead, in our tradition, intellectual property is an instrument. It
 738 sets the groundwork for a richly creative society but remains
 739 subservient to the value of creativity. The current debate has this
 740 turned around. We have become so concerned with protecting the
 741 instrument that we are losing sight of the value.
 742 </p><p>
 743 The source of this confusion is a distinction that the law no longer
 744 takes care to draw&#8212;the distinction between republishing someone's
 745 work on the one hand and building upon or transforming that work on
 746 the other. Copyright law at its birth had only publishing as its concern;
 747 copyright law today regulates both.
 748 </p><a class="indexterm" name="idp6983904"></a><p>
 749 Before the technologies of the Internet, this conflation didn't matter
 750 all that much. The technologies of publishing were expensive; that
 751 meant the vast majority of publishing was commercial. Commercial
 752 entities could bear the burden of the law&#8212;even the burden of the
 753 Byzantine complexity that copyright law has become. It was just one
 754 more expense of doing business.
 755 </p><a class="indexterm" name="idp6985184"></a><a class="indexterm" name="idp6986720"></a><a class="indexterm" name="idp6987472"></a><p>
 756 But with the birth of the Internet, this natural limit to the reach of
 757 the law has disappeared. The law controls not just the creativity of
 758 commercial creators but effectively that of anyone. Although that
 759 expansion would not matter much if copyright law regulated only
 760 <span class="quote">«<span class="quote">copying,</span>»</span> when the law regulates as broadly and obscurely as it does,
 761 the extension matters a lot. The burden of this law now vastly
 762 outweighs any original benefit&#8212;certainly as it affects
 763 noncommercial creativity, and increasingly as it affects commercial
 764 creativity as well. Thus, as we'll see more clearly in the chapters
 765 below, the law's role is less and less to support creativity, and more
 766 and more to protect certain industries against competition. Just at
 767 the time digital technology could unleash an extraordinary range of
 768 commercial and noncommercial creativity, the law burdens this
 769 creativity with insanely complex and vague rules and with the threat
 770 of obscenely severe penalties. We may
 771
 772 be seeing, as Richard Florida writes, the <span class="quote">«<span class="quote">Rise of the Creative
 773 Class.</span>»</span><a href="#ftn.idp6990416" class="footnote" name="idp6990416"><sup class="footnote">[18]</sup></a>
 774 Unfortunately, we are also seeing an extraordinary rise of regulation of
 775 this creative class.
 776 </p><a class="indexterm" name="idp6993856"></a><p>
 777 These burdens make no sense in our tradition. We should begin by
 778 understanding that tradition a bit more and by placing in their proper
 779 context the current battles about behavior labeled <span class="quote">«<span class="quote">piracy.</span>»</span>
 780 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp6948368" class="footnote"><p><a href="#idp6948368" class="para"><sup class="para">[15] </sup></a>
 781
 782 <em class="citetitle">Bach</em> v. <em class="citetitle">Longman</em>, 98 Eng. Rep. 1274 (1777) (Mansfield).
 783 </p></div><div id="ftn.idp6969248" class="footnote"><p><a href="#idp6969248" class="para"><sup class="para">[16] </sup></a>
 784
 785 See Rochelle Dreyfuss, <span class="quote">«<span class="quote">Expressive Genericity: Trademarks as Language
 786 in the Pepsi Generation,</span>»</span> <em class="citetitle">Notre Dame Law Review</em> 65 (1990): 397.
 787 </p></div><div id="ftn.idp6959488" class="footnote"><p><a href="#idp6959488" class="para"><sup class="para">[17] </sup></a>
 788
 789 Lisa Bannon, <span class="quote">«<span class="quote">The Birds May Sing, but Campers Can't Unless They Pay
 790 Up,</span>»</span> <em class="citetitle">Wall Street Journal</em>, 21 August 1996, available at
 791 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #3</a>; Jonathan
 792 Zittrain, <span class="quote">«<span class="quote">Calling Off the Copyright War: In Battle of Property vs. Free
 793 Speech, No One Wins,</span>»</span> <em class="citetitle">Boston Globe</em>, 24 November 2002.
 794 <a class="indexterm" name="idp6974096"></a>
 795 </p></div><div id="ftn.idp6990416" class="footnote"><p><a href="#idp6990416" class="para"><sup class="para">[18] </sup></a>
 796
 797 In <em class="citetitle">The Rise of the Creative Class</em> (New York:
 798 Basic Books, 2002), Richard Florida documents a shift in the nature of
 799 labor toward a labor of creativity.  His work, however, doesn't
 800 directly address the legal conditions under which that creativity is
 801 enabled or stifled. I certainly agree with him about the importance
 802 and significance of this change, but I also believe the conditions
 803 under which it will be enabled are much more tenuous.
 804
 805 <a class="indexterm" name="idp6991984"></a>
 806 <a class="indexterm" name="idp6992736"></a>
 807 </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>
 808 <span class="strong"><strong>In 1928</strong></span>, a cartoon character was born. An early Mickey Mouse
 809 made his debut in May of that year, in a silent flop called <em class="citetitle">Plane Crazy</em>.
 810 In November, in New York City's Colony Theater, in the first widely
 811 distributed cartoon synchronized with sound, <em class="citetitle">Steamboat Willie</em> brought
 812 to life the character that would become Mickey Mouse.
 813 </p><a class="indexterm" name="idxdisneywalt"></a><p>
 814 Synchronized sound had been introduced to film a year earlier in the
 815 movie <em class="citetitle">The Jazz Singer</em>. That success led Walt Disney to copy the
 816 technique and mix sound with cartoons. No one knew whether it would
 817 work or, if it did work, whether it would win an audience. But when
 818 Disney ran a test in the summer of 1928, the results were unambiguous.
 819 As Disney describes that first experiment,
 820 </p><div class="blockquote"><blockquote class="blockquote"><p>
 821 A couple of my boys could read music, and one of them could play
 822 a mouth organ. We put them in a room where they could not see
 823 the screen and arranged to pipe their sound into the room where
 824 our wives and friends were going to see the picture.
 825
 826 </p><p>
 827 The boys worked from a music and sound-effects score. After several
 828 false starts, sound and action got off with the gun. The mouth
 829 organist played the tune, the rest of us in the sound department
 830 bammed tin pans and blew slide whistles on the beat.  The
 831 synchronization was pretty close.
 832 </p><p>
 833 The effect on our little audience was nothing less than electric.
 834 They responded almost instinctively to this union of sound and
 835 motion. I thought they were kidding me. So they put me in the audience
 836 and ran the action again. It was terrible, but it was wonderful! And
 837 it was something new!<a href="#ftn.idp7010560" class="footnote" name="idp7010560"><sup class="footnote">[19]</sup></a>
 838 </p></blockquote></div><a class="indexterm" name="idp7012048"></a><p>
 839 Disney's then partner, and one of animation's most extraordinary
 840 talents, Ub Iwerks, put it more strongly: <span class="quote">«<span class="quote">I have never been so thrilled
 841 in my life. Nothing since has ever equaled it.</span>»</span>
 842 </p><p>
 843 Disney had created something very new, based upon something relatively
 844 new. Synchronized sound brought life to a form of creativity that had
 845 rarely&#8212;except in Disney's hands&#8212;been anything more than
 846 filler for other films. Throughout animation's early history, it was
 847 Disney's invention that set the standard that others struggled to
 848 match.  And quite often, Disney's great genius, his spark of
 849 creativity, was built upon the work of others.
 850 </p><a class="indexterm" name="idp7014048"></a><a class="indexterm" name="idxkeatonbuster"></a><a class="indexterm" name="idxsteamboatbilljr"></a><p>
 851 This much is familiar. What you might not know is that 1928 also marks
 852 another important transition. In that year, a comic (as opposed to
 853 cartoon) genius created his last independently produced silent film.
 854 That genius was Buster Keaton. The film was <em class="citetitle">Steamboat Bill, Jr</em>.
 855 </p><p>
 856 Keaton was born into a vaudeville family in 1895. In the era of silent
 857 film, he had mastered using broad physical comedy as a way to spark
 858 uncontrollable laughter from his audience. <em class="citetitle">Steamboat Bill,
 859 Jr</em>. was a classic of this form, famous among film buffs for its
 860 incredible stunts.  The film was classic Keaton&#8212;wildly popular
 861 and among the best of its genre.
 862 </p><a class="indexterm" name="idxderivativeworkspiracyvs"></a><a class="indexterm" name="idxpiracyderivativeworkvs"></a><p>
 863 <em class="citetitle">Steamboat Bill, Jr</em>. appeared before Disney's cartoon Steamboat
 864 Willie.
 865
 866 The coincidence of titles is not coincidental. Steamboat Willie is a
 867 direct cartoon parody of Steamboat Bill,<a href="#ftn.idp7024288" class="footnote" name="idp7024288"><sup class="footnote">[20]</sup></a>
 868 and both are built upon a common song as a source. It is not just from
 869 the invention of synchronized sound in <em class="citetitle">The Jazz Singer</em> that we
 870 get <em class="citetitle">Steamboat Willie</em>. It is also from Buster Keaton's invention of
 871 Steamboat Bill, Jr., itself inspired by the song <span class="quote">«<span class="quote">Steamboat Bill,</span>»</span>
 872 that we get Steamboat Willie, and then from Steamboat Willie, Mickey
 873 Mouse.
 874 </p><a class="indexterm" name="idp7030336"></a><a class="indexterm" name="idp7031312"></a><a class="indexterm" name="idp7032288"></a><a class="indexterm" name="idp7033264"></a><a class="indexterm" name="idxcreativitybytransformingpreviousworks"></a><a class="indexterm" name="idxdisneyinc"></a><p>
 875 This <span class="quote">«<span class="quote">borrowing</span>»</span> was nothing unique, either for Disney or for the
 876 industry. Disney was always parroting the feature-length mainstream
 877 films of his day.<a href="#ftn.idp7037744" class="footnote" name="idp7037744"><sup class="footnote">[21]</sup></a>
 878 So did many others. Early cartoons are filled with
 879 knockoffs&#8212;slight variations on winning themes; retellings of
 880 ancient stories. The key to success was the brilliance of the
 881 differences. With Disney, it was sound that gave his animation its
 882 spark. Later, it was the quality of his work relative to the
 883 production-line cartoons with which he competed. Yet these additions
 884 were built upon a base that was borrowed.  Disney added to the work of
 885 others before him, creating something new out of something just barely
 886 old.
 887 </p><a class="indexterm" name="idxgrimmfairytales"></a><p>
 888 Sometimes this borrowing was slight. Sometimes it was significant.
 889 Think about the fairy tales of the Brothers Grimm. If you're as
 890 oblivious as I was, you're likely to think that these tales are happy,
 891 sweet stories, appropriate for any child at bedtime. In fact, the
 892 Grimm fairy tales are, well, for us, grim. It is a rare and perhaps
 893 overly ambitious parent who would dare to read these bloody,
 894 moralistic stories to his or her child, at bedtime or anytime.
 895 </p><p>
 896 Disney took these stories and retold them in a way that carried them
 897 into a new age. He animated the stories, with both characters and
 898 light. Without removing the elements of fear and danger altogether, he
 899 made funny what was dark and injected a genuine emotion of compassion
 900 where before there was fear. And not just with the work of the
 901 Brothers Grimm. Indeed, the catalog of Disney work drawing upon the
 902 work of others is astonishing when set together: <em class="citetitle">Snow White</em>
 903 (1937), <em class="citetitle">Fantasia</em> (1940), <em class="citetitle">Pinocchio</em> (1940), <em class="citetitle">Dumbo</em>
 904 (1941), <em class="citetitle">Bambi</em> (1942), <em class="citetitle">Song of the South</em> (1946),
 905 <em class="citetitle">Cinderella</em> (1950), <em class="citetitle">Alice in Wonderland</em> (1951), <em class="citetitle">Robin
 906 Hood</em> (1952), <em class="citetitle">Peter Pan</em> (1953), <em class="citetitle">Lady and the Tramp</em>
 907
 908 (1955), <em class="citetitle">Mulan</em> (1998), <em class="citetitle">Sleeping Beauty</em> (1959), <em class="citetitle">101
 909 Dalmatians</em> (1961), <em class="citetitle">The Sword in the Stone</em> (1963), and
 910 <em class="citetitle">The Jungle Book</em> (1967)&#8212;not to mention a recent example
 911 that we should perhaps quickly forget, <em class="citetitle">Treasure Planet</em>
 912 (2003). In all of these cases, Disney (or Disney, Inc.) ripped
 913 creativity from the culture around him, mixed that creativity with his
 914 own extraordinary talent, and then burned that mix into the soul of
 915 his culture. Rip, mix, and burn.
 916 </p><a class="indexterm" name="idp7050448"></a><p>
 917 This is a kind of creativity. It is a creativity that we should
 918 remember and celebrate. There are some who would say that there is no
 919 creativity except this kind. We don't need to go that far to recognize
 920 its importance. We could call this <span class="quote">«<span class="quote">Disney creativity,</span>»</span> though that
 921 would be a bit misleading. It is, more precisely, <span class="quote">«<span class="quote">Walt Disney
 922 creativity</span>»</span>&#8212;a form of expression and genius that builds upon the
 923 culture around us and makes it something different.
 924 </p><a class="indexterm" name="idp7052960"></a><a class="indexterm" name="idp7053936"></a><a class="indexterm" name="idp7054912"></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
 925 relatively fresh. The public domain in 1928 was not very old and was
 926 therefore quite vibrant. The average term of copyright was just around
 927 thirty years&#8212;for that minority of creative work that was in fact
 928 copyrighted.<a href="#ftn.idp7052576" class="footnote" name="idp7052576"><sup class="footnote">[22]</sup></a>
 929 That means that for thirty years, on average, the authors or
 930 copyright holders of a creative work had an <span class="quote">«<span class="quote">exclusive right</span>»</span> to control
 931 certain uses of the work. To use this copyrighted work in limited ways
 932 required the permission of the copyright owner.
 933 </p><p>
 934 At the end of a copyright term, a work passes into the public domain.
 935 No permission is then needed to draw upon or use that work. No
 936 permission and, hence, no lawyers. The public domain is a <span class="quote">«<span class="quote">lawyer-free
 937 zone.</span>»</span> Thus, most of the content from the nineteenth century was free
 938 for Disney to use and build upon in 1928. It was free for
 939 anyone&#8212; whether connected or not, whether rich or not, whether
 940 approved or not&#8212;to use and build upon.
 941 </p><a class="indexterm" name="idp7065296"></a><a class="indexterm" name="idp7066656"></a><p>
 942 This is the ways things always were&#8212;until quite recently. For most
 943 of our history, the public domain was just over the horizon. From
 944 until 1978, the average copyright term was never more than thirty-two
 945 years, meaning that most culture just a generation and a half old was
 946
 947
 948 free for anyone to build upon without the permission of anyone else.
 949 Today's equivalent would be for creative work from the 1960s and 1970s
 950 to now be free for the next Walt Disney to build upon without
 951 permission. Yet today, the public domain is presumptive only for
 952 content from before the Great Depression.
 953 </p><a class="indexterm" name="idp7068880"></a><a class="indexterm" name="idp7069856"></a><a class="indexterm" name="idp7070832"></a><a class="indexterm" name="idp7071808"></a><a class="indexterm" name="idp7072784"></a><a class="indexterm" name="idp7073760"></a><p>
 954 <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>
 955 Nor does America. The norm of free culture has, until recently, and
 956 except within totalitarian nations, been broadly exploited and quite
 957 universal.
 958 </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>
 959 Consider, for example, a form of creativity that seems strange to many
 960 Americans but that is inescapable within Japanese culture: <em class="citetitle">manga</em>, or
 961 comics. The Japanese are fanatics about comics. Some 40 percent of
 962 publications are comics, and 30 percent of publication revenue derives
 963 from comics. They are everywhere in Japanese society, at every
 964 magazine stand, carried by a large proportion of commuters on Japan's
 965 extraordinary system of public transportation.
 966 </p><p>
 967 Americans tend to look down upon this form of culture. That's an
 968 unattractive characteristic of ours. We're likely to misunderstand
 969 much about manga, because few of us have ever read anything close to
 970 the stories that these <span class="quote">«<span class="quote">graphic novels</span>»</span> tell. For the Japanese, manga
 971 cover every aspect of social life. For us, comics are <span class="quote">«<span class="quote">men in tights.</span>»</span>
 972 And anyway, it's not as if the New York subways are filled with
 973 readers of Joyce or even Hemingway. People of different cultures
 974 distract themselves in different ways, the Japanese in this
 975 interestingly different way.
 976 </p><p>
 977 But my purpose here is not to understand manga. It is to describe a
 978 variant on manga that from a lawyer's perspective is quite odd, but
 979 from a Disney perspective is quite familiar.
 980 </p><a class="indexterm" name="idxcreativitybytransformingpreviousworks2"></a><a class="indexterm" name="idxdoujinshicomics"></a><p>
 981 This is the phenomenon of <em class="citetitle">doujinshi</em>. Doujinshi are also comics, but
 982 they are a kind of copycat comic. A rich ethic governs the creation of
 983 doujinshi. It is not doujinshi if it is <span class="emphasis"><em>just</em></span> a
 984 copy; the artist must make a contribution to the art he copies, by
 985 transforming it either subtly or
 986
 987 significantly. A doujinshi comic can thus take a mainstream comic and
 988 develop it differently&#8212;with a different story line. Or the comic can
 989 keep the character in character but change its look slightly. There is no
 990 formula for what makes the doujinshi sufficiently <span class="quote">«<span class="quote">different.</span>»</span> But they
 991 must be different if they are to be considered true doujinshi. Indeed,
 992 there are committees that review doujinshi for inclusion within shows
 993 and reject any copycat comic that is merely a copy.
 994 </p><a class="indexterm" name="idxdisneywalt2"></a><p>
 995 These copycat comics are not a tiny part of the manga market. They are
 996 huge. More than 33,000 <span class="quote">«<span class="quote">circles</span>»</span> of creators from across Japan produce
 997 these bits of Walt Disney creativity. More than 450,000 Japanese come
 998 together twice a year, in the largest public gathering in the country,
 999 to exchange and sell them. This market exists in parallel to the
1000 mainstream commercial manga market. In some ways, it obviously
1001 competes with that market, but there is no sustained effort by those
1002 who control the commercial manga market to shut the doujinshi market
1003 down. It flourishes, despite the competition and despite the law.
1004 </p><a class="indexterm" name="idxcopyrightlawjapanese"></a><a class="indexterm" name="idp7095616"></a><p>
1005 The most puzzling feature of the doujinshi market, for those trained
1006 in the law, at least, is that it is allowed to exist at all. Under
1007 Japanese copyright law, which in this respect (on paper) mirrors
1008 American copyright law, the doujinshi market is an illegal
1009 one. Doujinshi are plainly <span class="quote">«<span class="quote">derivative works.</span>»</span> There is no general
1010 practice by doujinshi artists of securing the permission of the manga
1011 creators. Instead, the practice is simply to take and modify the
1012 creations of others, as Walt Disney did with <em class="citetitle">Steamboat Bill,
1013 Jr</em>. Under both Japanese and American law, that <span class="quote">«<span class="quote">taking</span>»</span> without
1014 the permission of the original copyright owner is illegal. It is an
1015 infringement of the original copyright to make a copy or a derivative
1016 work without the original copyright owner's permission.
1017 </p><a class="indexterm" name="idp7098656"></a><a class="indexterm" name="idxwinickjudd"></a><p>
1018 Yet this illegal market exists and indeed flourishes in Japan, and in
1019 the view of many, it is precisely because it exists that Japanese manga
1020 flourish. As American graphic novelist Judd Winick said to me, <span class="quote">«<span class="quote">The
1021 early days of comics in America are very much like what's going on
1022 in Japan now. &#8230; American  comics were born out of copying each
1023
1024 other. &#8230; That's how [the artists] learn to draw &#8212; by going into comic
1025 books and not tracing them, but looking at them and copying them</span>»</span>
1026 and building from them.<a href="#ftn.idp7102400" class="footnote" name="idp7102400"><sup class="footnote">[23]</sup></a>
1027 </p><a class="indexterm" name="idp7103680"></a><a class="indexterm" name="idp7104656"></a><p>
1028 American comics now are quite different, Winick explains, in part
1029 because of the legal difficulty of adapting comics the way doujinshi are
1030 allowed. Speaking of Superman, Winick told me, <span class="quote">«<span class="quote">there are these rules
1031 and you have to stick to them.</span>»</span> There are things Superman <span class="quote">«<span class="quote">cannot</span>»</span>
1032 do. <span class="quote">«<span class="quote">As a creator, it's frustrating having to stick to some parameters
1033 which are fifty years old.</span>»</span>
1034 </p><a class="indexterm" name="idp7107264"></a><a class="indexterm" name="idxcopyrightlawjapanese2"></a><a class="indexterm" name="idp7109728"></a><a class="indexterm" name="idxmehrasalil"></a><p>
1035 The norm in Japan mitigates this legal difficulty. Some say it is
1036 precisely the benefit accruing to the Japanese manga market that
1037 explains the mitigation. Temple University law professor Salil Mehra,
1038 for example, hypothesizes that the manga market accepts these
1039 technical violations because they spur the manga market to be more
1040 wealthy and productive. Everyone would be worse off if doujinshi were
1041 banned, so the law does not ban doujinshi.<a href="#ftn.idp7112432" class="footnote" name="idp7112432"><sup class="footnote">[24]</sup></a>
1042 </p><a class="indexterm" name="idp7114960"></a><a class="indexterm" name="idp7115936"></a><a class="indexterm" name="idp7116912"></a><p>
1043 The problem with this story, however, as Mehra plainly acknowledges,
1044 is that the mechanism producing this laissez faire response is not
1045 clear. It may well be that the market as a whole is better off if
1046 doujinshi are permitted rather than banned, but that doesn't explain
1047 why individual copyright owners don't sue nonetheless. If the law has
1048 no general exception for doujinshi, and indeed in some cases
1049 individual manga artists have sued doujinshi artists, why is there not
1050 a more general pattern of blocking this <span class="quote">«<span class="quote">free taking</span>»</span> by the doujinshi
1051 culture?
1052 </p><a class="indexterm" name="idp7119184"></a><a class="indexterm" name="idp7120160"></a><p>
1053 I spent four wonderful months in Japan, and I asked this question
1054 as often as I could. Perhaps the best account in the end was offered by
1055 a friend from a major Japanese law firm. <span class="quote">«<span class="quote">We don't have enough
1056 lawyers,</span>»</span> he told me one afternoon. There <span class="quote">«<span class="quote">just aren't enough resources
1057 to prosecute cases like this.</span>»</span>
1058 </p><p>
1059 This is a theme to which we will return: that regulation by law is a
1060 function of both the words on the books and the costs of making those
1061 words have effect. For now, focus on the obvious question that is
1062 begged: Would Japan be better off with more lawyers? Would manga
1063
1064 be richer if doujinshi artists were regularly prosecuted? Would the
1065 Japanese gain something important if they could end this practice of
1066 uncompensated sharing? Does piracy here hurt the victims of the
1067 piracy, or does it help them? Would lawyers fighting this piracy help
1068 their clients or hurt them?
1069 </p><a class="indexterm" name="idp7123808"></a><p>
1070 <span class="strong"><strong>Let's pause</strong></span> for a moment.
1071 </p><p>
1072 If you're like I was a decade ago, or like most people are when they
1073 first start thinking about these issues, then just about now you should
1074 be puzzled about something you hadn't thought through before.
1075 </p><p>
1076 We live in a world that celebrates <span class="quote">«<span class="quote">property.</span>»</span> I am one of those
1077 celebrants.  I believe in the value of property in general, and I also
1078 believe in the value of that weird form of property that lawyers call
1079 <span class="quote">«<span class="quote">intellectual property.</span>»</span><a href="#ftn.idp7127472" class="footnote" name="idp7127472"><sup class="footnote">[25]</sup></a>
1080 A large, diverse society cannot survive without property; a large,
1081 diverse, and modern society cannot flourish without intellectual
1082 property.
1083 </p><a class="indexterm" name="idxdisneywalt3"></a><a class="indexterm" name="idxgrimmfairytales2"></a><a class="indexterm" name="idp7133584"></a><p>
1084 But it takes just a second's reflection to realize that there is
1085 plenty of value out there that <span class="quote">«<span class="quote">property</span>»</span> doesn't capture. I don't
1086 mean <span class="quote">«<span class="quote">money can't buy you love,</span>»</span> but rather, value that is plainly
1087 part of a process of production, including commercial as well as
1088 noncommercial production.  If Disney animators had stolen a set of
1089 pencils to draw Steamboat Willie, we'd have no hesitation in
1090 condemning that taking as wrong&#8212; even though trivial, even if
1091 unnoticed. Yet there was nothing wrong, at least under the law of the
1092 day, with Disney's taking from Buster Keaton or from the Brothers
1093 Grimm. There was nothing wrong with the taking from Keaton because
1094 Disney's use would have been considered <span class="quote">«<span class="quote">fair.</span>»</span> There was nothing
1095 wrong with the taking from the Grimms because the Grimms' work was in
1096 the public domain.
1097 </p><a class="indexterm" name="idxfreeculturederivativeworksbasedon"></a><p>
1098 Thus, even though the things that Disney took&#8212;or more generally,
1099 the things taken by anyone exercising Walt Disney creativity&#8212;are
1100 valuable, our tradition does not treat those takings as wrong. Some
1101
1102
1103 things remain free for the taking within a free culture, and that
1104 freedom is good.
1105 </p><a class="indexterm" name="idp7139120"></a><a class="indexterm" name="idxcopyrightlawjapanese3"></a><a class="indexterm" name="idp7141584"></a><a class="indexterm" name="idxdoujinshicomics2"></a><a class="indexterm" name="idxjapanesecomics2"></a><a class="indexterm" name="idxmanga2"></a><p>
1106 The same with the doujinshi culture. If a doujinshi artist broke into
1107 a publisher's office and ran off with a thousand copies of his latest
1108 work&#8212;or even one copy&#8212;without paying, we'd have no hesitation in
1109 saying the artist was wrong. In addition to having trespassed, he would
1110 have stolen something of value. The law bans that stealing in whatever
1111 form, whether large or small.
1112 </p><a class="indexterm" name="idp7146288"></a><p>
1113 Yet there is an obvious reluctance, even among Japanese lawyers, to
1114 say that the copycat comic artists are <span class="quote">«<span class="quote">stealing.</span>»</span> This form of Walt
1115 Disney creativity is seen as fair and right, even if lawyers in
1116 particular find it hard to say why.
1117 </p><a class="indexterm" name="idp7148848"></a><a class="indexterm" name="idp7149824"></a><a class="indexterm" name="idp7150800"></a><a class="indexterm" name="idp7151776"></a><a class="indexterm" name="idp7152752"></a><a class="indexterm" name="idp7153728"></a><a class="indexterm" name="idp7154704"></a><p>
1118 It's the same with a thousand examples that appear everywhere once you
1119 begin to look. Scientists build upon the work of other scientists
1120 without asking or paying for the privilege. (<span class="quote">«<span class="quote">Excuse me, Professor
1121 Einstein, but may I have permission to use your theory of relativity
1122 to show that you were wrong about quantum physics?</span>»</span>) Acting companies
1123 perform adaptations of the works of Shakespeare without securing
1124 permission from anyone. (Does <span class="emphasis"><em>anyone</em></span> believe
1125 Shakespeare would be better spread within our culture if there were a
1126 central Shakespeare rights clearinghouse that all productions of
1127 Shakespeare must appeal to first?) And Hollywood goes through cycles
1128 with a certain kind of movie: five asteroid films in the late 1990s;
1129 two volcano disaster films in 1997.
1130 </p><p>
1131 Creators here and everywhere are always and at all times building
1132 upon the creativity that went before and that surrounds them now.
1133 That building is always and everywhere at least partially done without
1134 permission and without compensating the original creator. No society,
1135 free or controlled, has ever demanded that every use be paid for or that
1136 permission for Walt Disney creativity must always be sought. Instead,
1137 every society has left a certain bit of its culture free for the taking&#8212;free
1138 societies more fully than unfree, perhaps, but all societies to some degree.
1139
1140 </p><a class="indexterm" name="idp7157936"></a><p>
1141 The hard question is therefore not <span class="emphasis"><em>whether</em></span> a
1142 culture is free. All cultures are free to some degree. The hard
1143 question instead is <span class="quote">«<span class="quote"><span class="emphasis"><em>How</em></span> free is this culture?</span>»</span>
1144 How much, and how broadly, is the culture free for others to take and
1145 build upon? Is that freedom limited to party members?  To members of
1146 the royal family? To the top ten corporations on the New York Stock
1147 Exchange? Or is that freedom spread broadly? To artists generally,
1148 whether affiliated with the Met or not? To musicians generally,
1149 whether white or not? To filmmakers generally, whether affiliated with
1150 a studio or not?
1151 </p><p>
1152 Free cultures are cultures that leave a great deal open for others to
1153 build upon; unfree, or permission, cultures leave much less. Ours was a
1154 free culture. It is becoming much less so.
1155 </p><a class="indexterm" name="idp7162192"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7010560" class="footnote"><p><a href="#idp7010560" class="para"><sup class="para">[19] </sup></a>
1156
1157 Leonard Maltin, <em class="citetitle">Of Mice and Magic: A History of American Animated
1158 Cartoons</em> (New York: Penguin Books, 1987), 34&#8211;35.
1159 </p></div><div id="ftn.idp7024288" class="footnote"><p><a href="#idp7024288" class="para"><sup class="para">[20] </sup></a>
1160
1161 I am grateful to David Gerstein and his careful history, described at
1162 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #4</a>.
1163 According to Dave Smith of the Disney Archives, Disney paid royalties to
1164 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
1165 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>
1166 (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
1167 Straw,</span>»</span> was already in the public domain. Letter from David Smith to
1168 Harry Surden, 10 July 2003, on file with author.
1169 </p></div><div id="ftn.idp7037744" class="footnote"><p><a href="#idp7037744" class="para"><sup class="para">[21] </sup></a>
1170
1171 He was also a fan of the public domain. See Chris Sprigman, <span class="quote">«<span class="quote">The Mouse
1172 that Ate the Public Domain,</span>»</span> Findlaw, 5 March 2002, at
1173 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #5</a>.
1174 </p></div><div id="ftn.idp7052576" class="footnote"><p><a href="#idp7052576" class="para"><sup class="para">[22] </sup></a>
1175
1176 Until 1976, copyright law granted an author the possibility of two terms: an
1177 initial term and a renewal term. I have calculated the <span class="quote">«<span class="quote">average</span>»</span> term by
1178 determining
1179 the weighted average of total registrations for any particular year,
1180 and the proportion renewing. Thus, if 100 copyrights are registered in year
1181 1, and only 15 are renewed, and the renewal term is 28 years, then the
1182 average
1183 term is 32.2 years. For the renewal data and other relevant data, see the
1184 Web site associated with this book, available at
1185 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #6</a>.
1186 </p></div><div id="ftn.idp7102400" class="footnote"><p><a href="#idp7102400" class="para"><sup class="para">[23] </sup></a>
1187
1188 For an excellent history, see Scott McCloud, <em class="citetitle">Reinventing Comics</em> (New
1189 York: Perennial, 2000).
1190 </p></div><div id="ftn.idp7112432" class="footnote"><p><a href="#idp7112432" class="para"><sup class="para">[24] </sup></a>
1191
1192 See Salil K. Mehra, <span class="quote">«<span class="quote">Copyright and Comics in Japan: Does Law Explain
1193 Why All the Comics My Kid Watches Are Japanese Imports?</span>»</span> <em class="citetitle">Rutgers Law
1194 Review</em> 55 (2002): 155, 182. <span class="quote">«<span class="quote">[T]here might be a collective economic
1195 rationality that would lead manga and anime artists to forgo bringing
1196 legal actions for infringement. One hypothesis is that all manga
1197 artists may be better off collectively if they set aside their
1198 individual self-interest and decide not to press their legal
1199 rights. This is essentially a prisoner's dilemma solved.</span>»</span>
1200 </p></div><div id="ftn.idp7127472" class="footnote"><p><a href="#idp7127472" class="para"><sup class="para">[25] </sup></a>
1201
1202 <a class="indexterm" name="idp7128112"></a>
1203 The term <em class="citetitle">intellectual property</em> is of relatively recent origin. See
1204 Siva Vaidhyanathan, <em class="citetitle">Copyrights and Copywrongs</em>, 11 (New York: New York
1205 University Press, 2001). See also Lawrence Lessig, <em class="citetitle">The Future of Ideas</em>
1206 (New York: Random House, 2001), 293 n. 26. The term accurately
1207 describes a set of <span class="quote">«<span class="quote">property</span>»</span> rights &#8212; copyright, patents,
1208 trademark, and trade-secret &#8212; but the nature of those rights is
1209 very different.
1210 </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="idp7164928"></a><a class="indexterm" name="idxcameratechnology"></a><a class="indexterm" name="idxphotography"></a><p>
1211 <span class="strong"><strong>In 1839</strong></span>, Louis Daguerre invented
1212 the first practical technology for producing what we would call
1213 <span class="quote">«<span class="quote">photographs.</span>»</span> Appropriately enough, they were called
1214 <span class="quote">«<span class="quote">daguerreotypes.</span>»</span> The process was complicated and
1215 expensive, and the field was thus limited to professionals and a few
1216 zealous and wealthy amateurs. (There was even an American Daguerre
1217 Association that helped regulate the industry, as do all such
1218 associations, by keeping competition down so as to keep prices up.)
1219 </p><a class="indexterm" name="idp7170352"></a><p>
1220 Yet despite high prices, the demand for daguerreotypes was strong.
1221 This pushed inventors to find simpler and cheaper ways to make
1222 <span class="quote">«<span class="quote">automatic pictures.</span>»</span> William Talbot soon discovered a process for
1223 making <span class="quote">«<span class="quote">negatives.</span>»</span> But because the negatives were glass, and had to
1224 be kept wet, the process still remained expensive and cumbersome. In
1225 the 1870s, dry plates were developed, making it easier to separate the
1226 taking of a picture from its developing. These were still plates of
1227 glass, and thus it was still not a process within reach of most
1228 amateurs.
1229 </p><a class="indexterm" name="idxeastmangeorge"></a><p>
1230 The technological change that made mass photography possible
1231 didn't happen until 1888, and was the creation of a single man. George
1232
1233 Eastman, himself an amateur photographer, was frustrated by the
1234 technology of photographs made with plates. In a flash of insight (so
1235 to speak), Eastman saw that if the film could be made to be flexible,
1236 it could be held on a single spindle. That roll could then be sent to
1237 a developer, driving the costs of photography down substantially. By
1238 lowering the costs, Eastman expected he could dramatically broaden the
1239 population of photographers.
1240 </p><a class="indexterm" name="idxkodakcameras"></a><a class="indexterm" name="idxkodakprimertheeastman"></a><p>
1241 Eastman developed flexible, emulsion-coated paper film and placed
1242 rolls of it in small, simple cameras: the Kodak. The device was
1243 marketed on the basis of its simplicity. <span class="quote">«<span class="quote">You press the button and we
1244 do the rest.</span>»</span><a href="#ftn.idp7178400" class="footnote" name="idp7178400"><sup class="footnote">[26]</sup></a> As he described in <em class="citetitle">The Kodak Primer</em>:
1245 </p><div class="blockquote"><blockquote class="blockquote"><p>
1246 The principle of the Kodak system is the separation of the work that
1247 any person whomsoever can do in making a photograph, from the work
1248 that only an expert can do. &#8230; We furnish anybody, man, woman or
1249 child, who has sufficient intelligence to point a box straight and
1250 press a button, with an instrument which altogether removes from the
1251 practice of photography the necessity for exceptional facilities or,
1252 in fact, any special knowledge of the art. It can be employed without
1253 preliminary study, without a darkroom and without
1254 chemicals.<a href="#ftn.idp7102112" class="footnote" name="idp7102112"><sup class="footnote">[27]</sup></a>
1255 </p></blockquote></div><a class="indexterm" name="idp7183552"></a><p>
1256 For $25, anyone could make pictures. The camera came preloaded
1257 with film, and when it had been used, the camera was returned to an
1258 Eastman factory, where the film was developed. Over time, of course,
1259 the cost of the camera and the ease with which it could be used both
1260 improved. Roll film thus became the basis for the explosive growth of
1261 popular photography. Eastman's camera first went on sale in 1888; one
1262 year later, Kodak was printing more than six thousand negatives a day.
1263 From 1888 through 1909, while industrial production was rising by 4.7
1264 percent, photographic equipment and material sales increased by 11
1265 percent.<a href="#ftn.idp7185424" class="footnote" name="idp7185424"><sup class="footnote">[28]</sup></a> Eastman Kodak's sales during the same period experienced
1266 an average annual increase of over 17 percent.<a href="#ftn.idp7186320" class="footnote" name="idp7186320"><sup class="footnote">[29]</sup></a>
1267 </p><a class="indexterm" name="idp7187216"></a><p>
1268
1269
1270 The real significance of Eastman's invention, however, was not
1271 economic. It was social. Professional photography gave individuals a
1272 glimpse of places they would never otherwise see. Amateur photography
1273 gave them the ability to record their own lives in a way they had
1274 never been able to do before. As author Brian Coe notes, <span class="quote">«<span class="quote">For the
1275 first time the snapshot album provided the man on the street with a
1276 permanent record of his family and its activities. &#8230; For the first
1277 time in history there exists an authentic visual record of the
1278 appearance and activities of the common man made without [literary]
1279 interpretation or bias.</span>»</span><a href="#ftn.idp7180832" class="footnote" name="idp7180832"><sup class="footnote">[30]</sup></a>
1280 </p><a class="indexterm" name="idp7190304"></a><a class="indexterm" name="idp7191312"></a><p>
1281 In this way, the Kodak camera and film were technologies of
1282 expression.  The pencil or paintbrush was also a technology of
1283 expression, of course. But it took years of training before they could
1284 be deployed by amateurs in any useful or effective way. With the
1285 Kodak, expression was possible much sooner and more simply. The
1286 barrier to expression was lowered. Snobs would sneer at its <span class="quote">«<span class="quote">quality</span>»</span>;
1287 professionals would discount it as irrelevant. But watch a child study
1288 how best to frame a picture and you get a sense of the experience of
1289 creativity that the Kodak enabled. Democratic tools gave ordinary
1290 people a way to express themselves more easily than any tools could
1291 have before.
1292 </p><a class="indexterm" name="idp7193792"></a><a class="indexterm" name="idxpermissionsphotographyexemptedfrom"></a><p>
1293 What was required for this technology to flourish? Obviously,
1294 Eastman's genius was an important part. But also important was the
1295 legal environment within which Eastman's invention grew. For early in
1296 the history of photography, there was a series of judicial decisions
1297 that could well have changed the course of photography substantially.
1298 Courts were asked whether the photographer, amateur or professional,
1299 required permission before he could capture and print whatever image
1300 he wanted. Their answer was no.<a href="#ftn.idp7197040" class="footnote" name="idp7197040"><sup class="footnote">[31]</sup></a>
1301 </p><a class="indexterm" name="idp7200240"></a><a class="indexterm" name="idxdisneywalt4"></a><a class="indexterm" name="idximagesownershipof"></a><p>
1302 The arguments in favor of requiring permission will sound surprisingly
1303 familiar. The photographer was <span class="quote">«<span class="quote">taking</span>»</span> something from the person or
1304 building whose photograph he shot&#8212;pirating something of
1305 value. Some even thought he was taking the target's soul. Just as
1306 Disney was not free to take the pencils that his animators used to
1307 draw
1308
1309 Mickey, so, too, should these photographers not be free to take images
1310 that they thought valuable.
1311 </p><a class="indexterm" name="idp7205248"></a><a class="indexterm" name="idp7206000"></a><a class="indexterm" name="idxcameratechnology2"></a><p>
1312 On the other side was an argument that should be familiar, as well.
1313 Sure, there may be something of value being used. But citizens should
1314 have the right to capture at least those images that stand in public view.
1315 (Louis Brandeis, who would become a Supreme Court Justice, thought
1316 the rule should be different for images from private spaces.<a href="#ftn.idp7208592" class="footnote" name="idp7208592"><sup class="footnote">[32]</sup></a>) It may be that this means that the photographer
1317 gets something for nothing. Just as Disney could take inspiration from
1318 <em class="citetitle">Steamboat Bill, Jr</em>. or the Brothers Grimm, the photographer should be
1319 free to capture an image without compensating the source.
1320 </p><a class="indexterm" name="idp7212544"></a><p>
1321 Fortunately for Mr. Eastman, and for photography in general, these
1322 early decisions went in favor of the pirates. In general, no
1323 permission would be required before an image could be captured and
1324 shared with others. Instead, permission was presumed. Freedom was the
1325 default.  (The law would eventually craft an exception for famous
1326 people: commercial photographers who snap pictures of famous people
1327 for commercial purposes have more restrictions than the rest of
1328 us. But in the ordinary case, the image can be captured without
1329 clearing the rights to do the capturing.<a href="#ftn.idp7214368" class="footnote" name="idp7214368"><sup class="footnote">[33]</sup></a>)
1330 </p><a class="indexterm" name="idp7217568"></a><a class="indexterm" name="idp7218320"></a><p>
1331 We can only speculate about how photography would have developed had
1332 the law gone the other way. If the presumption had been against the
1333 photographer, then the photographer would have had to demonstrate
1334 permission. Perhaps Eastman Kodak would have had to demonstrate
1335 permission, too, before it developed the film upon which images were
1336 captured. After all, if permission were not granted, then Eastman
1337 Kodak would be benefiting from the <span class="quote">«<span class="quote">theft</span>»</span> committed by the
1338 photographer. Just as Napster benefited from the copyright
1339 infringements committed by Napster users, Kodak would be benefiting
1340 from the <span class="quote">«<span class="quote">image-right</span>»</span> infringement of its photographers. We could
1341 imagine the law then requiring that some form of permission be
1342 demonstrated before a company developed pictures. We could imagine a
1343 system developing to demonstrate that permission.
1344 </p><a class="indexterm" name="idp7221088"></a><a class="indexterm" name="idxcameratechnology3"></a><a class="indexterm" name="idp7223296"></a><a class="indexterm" name="idp7224304"></a><p>
1345
1346
1347 But though we could imagine this system of permission, it would be
1348 very hard to see how photography could have flourished as it did if
1349 the requirement for permission had been built into the rules that
1350 govern it. Photography would have existed. It would have grown in
1351 importance over time. Professionals would have continued to use the
1352 technology as they did&#8212;since professionals could have more
1353 easily borne the burdens of the permission system. But the spread of
1354 photography to ordinary people would not have occurred. Nothing like
1355 that growth would have been realized. And certainly, nothing like that
1356 growth in a democratic technology of expression would have been
1357 realized.
1358 </p><a class="indexterm" name="idp7225824"></a><a class="indexterm" name="idp7227632"></a><a class="indexterm" name="idp7228608"></a><a class="indexterm" name="idp7229584"></a><a class="indexterm" name="idp7230560"></a><a class="indexterm" name="idxjustthink"></a><p>
1359 <span class="strong"><strong>If you drive</strong></span> through San
1360 Francisco's Presidio, you might see two gaudy yellow school buses
1361 painted over with colorful and striking images, and the logo
1362 <span class="quote">«<span class="quote">Just Think!</span>»</span> in place of the name of a school. But
1363 there's little that's <span class="quote">«<span class="quote">just</span>»</span> cerebral in the projects
1364 that these busses enable.  These buses are filled with technologies
1365 that teach kids to tinker with film. Not the film of Eastman. Not even
1366 the film of your VCR.  Rather the <span class="quote">«<span class="quote">film</span>»</span> of digital
1367 cameras. Just Think!  is a project that enables kids to make films, as
1368 a way to understand and critique the filmed culture that they find all
1369 around them. Each year, these busses travel to more than thirty
1370 schools and enable three hundred to five hundred children to learn
1371 something about media by doing something with media.  By doing, they
1372 think. By tinkering, they learn.
1373 </p><a class="indexterm" name="idxeducationinmedialiteracy"></a><a class="indexterm" name="idxmedialiteracy"></a><a class="indexterm" name="idxexpressiontechnologiesofmedialiteracyand"></a><p>
1374 These buses are not cheap, but the technology they carry is
1375 increasingly so. The cost of a high-quality digital video system has
1376 fallen dramatically.  As one analyst puts it, <span class="quote">«<span class="quote">Five years ago, a good
1377 real-time digital video editing system cost $25,000. Today you can get
1378 professional quality for $595.</span>»</span><a href="#ftn.idp7240608" class="footnote" name="idp7240608"><sup class="footnote">[34]</sup></a>
1379 These buses are filled with technology that would have cost hundreds
1380 of thousands just ten years ago. And it is now feasible to imagine not
1381 just buses like this, but classrooms across the country where kids are
1382 learning more and more of something teachers call <span class="quote">«<span class="quote">media literacy.</span>»</span>
1383 </p><a class="indexterm" name="idp7243296"></a><p>
1384
1385 <span class="quote">«<span class="quote">Media literacy,</span>»</span> as Dave Yanofsky, the executive director of Just
1386 Think!, puts it, <span class="quote">«<span class="quote">is the ability &#8230; to understand, analyze, and
1387 deconstruct media images. Its aim is to make [kids] literate about the
1388 way media works, the way it's constructed, the way it's delivered, and
1389 the way people access it.</span>»</span>
1390 </p><a class="indexterm" name="idp7245760"></a><p>
1391 This may seem like an odd way to think about <span class="quote">«<span class="quote">literacy.</span>»</span> For most
1392 people, literacy is about reading and writing. Faulkner and Hemingway
1393 and noticing split infinitives are the things that <span class="quote">«<span class="quote">literate</span>»</span> people know
1394 about.
1395 </p><a class="indexterm" name="idp7248032"></a><a class="indexterm" name="idp7248784"></a><a class="indexterm" name="idp7249536"></a><p>
1396 Maybe. But in a world where children see on average 390 hours of
1397 television commercials per year, or between 20,000 and 45,000
1398 commercials generally,<a href="#ftn.idp7250960" class="footnote" name="idp7250960"><sup class="footnote">[35]</sup></a>
1399 it is increasingly important to understand the <span class="quote">«<span class="quote">grammar</span>»</span> of media. For
1400 just as there is a grammar for the written word, so, too, is there one
1401 for media. And just as kids learn how to write by writing lots of
1402 terrible prose, kids learn how to write media by constructing lots of
1403 (at least at first) terrible media.
1404 </p><p>
1405 A growing field of academics and activists sees this form of literacy
1406 as crucial to the next generation of culture. For though anyone who
1407 has written understands how difficult writing is&#8212;how difficult
1408 it is to sequence the story, to keep a reader's attention, to craft
1409 language to be understandable&#8212;few of us have any real sense of
1410 how difficult media is. Or more fundamentally, few of us have a sense
1411 of how media works, how it holds an audience or leads it through a
1412 story, how it triggers emotion or builds suspense.
1413 </p><a class="indexterm" name="idp7253920"></a><p>
1414 It took filmmaking a generation before it could do these things well.
1415 But even then, the knowledge was in the filming, not in writing about
1416 the film. The skill came from experiencing the making of a film, not
1417 from reading a book about it. One learns to write by writing and then
1418 reflecting upon what one has written. One learns to write with images
1419 by making them and then reflecting upon what one has created.
1420 </p><a class="indexterm" name="idxdaleyelizabeth"></a><a class="indexterm" name="idp7257696"></a><p>
1421 This grammar has changed as media has changed. When it was just film,
1422 as Elizabeth Daley, executive director of the University of Southern
1423 California's Annenberg Center for Communication and dean of the
1424
1425
1426 USC School of Cinema-Television, explained to me, the grammar was
1427 about <span class="quote">«<span class="quote">the placement of objects, color, &#8230; rhythm, pacing, and
1428 texture.</span>»</span><a href="#ftn.idp7245280" class="footnote" name="idp7245280"><sup class="footnote">[36]</sup></a>
1429 But as computers open up an interactive space where a story is
1430 <span class="quote">«<span class="quote">played</span>»</span> as well as experienced, that grammar changes. The simple
1431 control of narrative is lost, and so other techniques are necessary. Author
1432 Michael Crichton had mastered the narrative of science fiction.
1433 But when he tried to design a computer game based on one of his
1434 works, it was a new craft he had to learn. How to lead people through
1435 a game without their feeling they have been led was not obvious, even
1436 to a wildly successful author.<a href="#ftn.idp7262944" class="footnote" name="idp7262944"><sup class="footnote">[37]</sup></a>
1437 </p><a class="indexterm" name="idp7265856"></a><p>
1438 This skill is precisely the craft a filmmaker learns. As Daley
1439 describes, <span class="quote">«<span class="quote">people are very surprised about how they are led through a
1440 film. [I]t is perfectly constructed to keep you from seeing it, so you
1441 have no idea. If a filmmaker succeeds you do not know how you were
1442 led.</span>»</span> If you know you were led through a film, the film has failed.
1443 </p><p>
1444 Yet the push for an expanded literacy&#8212;one that goes beyond text
1445 to include audio and visual elements&#8212;is not about making better
1446 film directors.  The aim is not to improve the profession of
1447 filmmaking at all.  Instead, as Daley explained,
1448 </p><div class="blockquote"><blockquote class="blockquote"><p>
1449 From my perspective, probably the most important digital divide
1450 is not access to a box. It's the ability to be empowered with the
1451 language that that box works in. Otherwise only a very few people
1452 can write with this language, and all the rest of us are reduced to
1453 being read-only.
1454 </p></blockquote></div><p>
1455 <span class="quote">«<span class="quote">Read-only.</span>»</span> Passive recipients of culture produced elsewhere.
1456 Couch potatoes. Consumers. This is the world of media from the
1457 twentieth century.
1458 </p><p>
1459 The twenty-first century could be different. This is the crucial
1460 point: It could be both read and write. Or at least reading and better
1461 understanding the craft of writing. Or best, reading and understanding
1462 the tools that enable the writing to lead or mislead. The aim of any
1463 literacy,
1464
1465 and this literacy in particular, is to <span class="quote">«<span class="quote">empower people to choose the
1466 appropriate language for what they need to create or
1467 express.</span>»</span><a href="#ftn.idp7271584" class="footnote" name="idp7271584"><sup class="footnote">[38]</sup></a> It is to enable students <span class="quote">«<span class="quote">to communicate in the
1468 language of the twenty-first century.</span>»</span><a href="#ftn.idp7273568" class="footnote" name="idp7273568"><sup class="footnote">[39]</sup></a>
1469 </p><a class="indexterm" name="idxbarishstephanie"></a><p>
1470 As with any language, this language comes more easily to some than to
1471 others. It doesn't necessarily come more easily to those who excel in
1472 written language. Daley and Stephanie Barish, director of the
1473 Institute for Multimedia Literacy at the Annenberg Center, describe
1474 one particularly poignant example of a project they ran in a high
1475 school.  The high school was a very poor inner-city Los Angeles
1476 school. In all the traditional measures of success, this school was a
1477 failure. But Daley and Barish ran a program that gave kids an
1478 opportunity to use film to express meaning about something the
1479 students know something about&#8212;gun violence.
1480 </p><a class="indexterm" name="idp7275952"></a><p>
1481 The class was held on Friday afternoons, and it created a relatively
1482 new problem for the school. While the challenge in most classes was
1483 getting the kids to come, the challenge in this class was keeping them
1484 away. The <span class="quote">«<span class="quote">kids were showing up at 6 A.M. and leaving at 5 at night,</span>»</span>
1485 said Barish. They were working harder than in any other class to do
1486 what education should be about&#8212;learning how to express themselves.
1487 </p><p>
1488 Using whatever <span class="quote">«<span class="quote">free web stuff they could find,</span>»</span> and relatively simple
1489 tools to enable the kids to mix <span class="quote">«<span class="quote">image, sound, and text,</span>»</span> Barish said
1490 this class produced a series of projects that showed something about
1491 gun violence that few would otherwise understand. This was an issue
1492 close to the lives of these students. The project <span class="quote">«<span class="quote">gave them a tool
1493 and empowered them to be able to both understand it and talk about
1494 it,</span>»</span> Barish explained. That tool succeeded in creating
1495 expression&#8212;far more successfully and powerfully than could have
1496 been created using only text. <span class="quote">«<span class="quote">If you had said to these students, `you
1497 have to do it in text,' they would've just thrown their hands up and
1498 gone and done something else,</span>»</span> Barish described, in part, no doubt,
1499 because expressing themselves in text is not something these students
1500 can do well. Yet neither is text a form in which
1501 <span class="emphasis"><em>these</em></span> ideas can be expressed well. The power of
1502 this message depended upon its connection to this form of expression.
1503 </p><a class="indexterm" name="idp7282672"></a><a class="indexterm" name="idxdaleyelizabeth2"></a><p>
1504
1505
1506 <span class="quote">«<span class="quote">But isn't education about teaching kids to write?</span>»</span> I asked. In part,
1507 of course, it is. But why are we teaching kids to write? Education,
1508 Daley explained, is about giving students a way of <span class="quote">«<span class="quote">constructing
1509 meaning.</span>»</span>  To say that that means just writing is like saying teaching
1510 writing is only about teaching kids how to spell. Text is one
1511 part&#8212;and increasingly, not the most powerful part&#8212;of
1512 constructing meaning. As Daley explained in the most moving part of
1513 our interview,
1514 </p><div class="blockquote"><blockquote class="blockquote"><p>
1515 What you want is to give these students ways of constructing
1516 meaning. If all you give them is text, they're not going to do it.
1517 Because they can't. You know, you've got Johnny who can look at a
1518 video, he can play a video game, he can do graffiti all over your
1519 walls, he can take your car apart, and he can do all sorts of other
1520 things. He just can't read your text. So Johnny comes to school and
1521 you say, <span class="quote">«<span class="quote">Johnny, you're illiterate. Nothing you can do matters.</span>»</span>
1522 Well, Johnny then has two choices: He can dismiss you or he [can]
1523 dismiss himself. If his ego is healthy at all, he's going to dismiss
1524 you. [But i]nstead, if you say, <span class="quote">«<span class="quote">Well, with all these things that you
1525 can do, let's talk about this issue. Play for me music that you think
1526 reflects that, or show me images that you think reflect that, or draw
1527 for me something that reflects that.</span>»</span> Not by giving a kid a video
1528 camera and &#8230; saying, <span class="quote">«<span class="quote">Let's go have fun with the video camera and
1529 make a little movie.</span>»</span> But instead, really help you take these elements
1530 that you understand, that are your language, and construct meaning
1531 about the topic.&#8230;
1532 </p><a class="indexterm" name="idp7289552"></a><p>
1533 That empowers enormously. And then what happens, of
1534 course, is eventually, as it has happened in all these classes, they
1535 bump up against the fact, <span class="quote">«<span class="quote">I need to explain this and I really need
1536 to write something.</span>»</span> And as one of the teachers told Stephanie,
1537 they would rewrite a paragraph 5, 6, 7, 8 times, till they got it right.
1538 </p><p>
1539 Because they needed to. There was a reason for doing it. They
1540 needed to say something, as opposed to just jumping through
1541 your hoops. They actually needed to use a language that they
1542
1543 didn't speak very well. But they had come to understand that they
1544 had a lot of power with this language.
1545 </p></blockquote></div><a class="indexterm" name="idp7293296"></a><a class="indexterm" name="idp7294272"></a><a class="indexterm" name="idp7295248"></a><a class="indexterm" name="idp7296224"></a><a class="indexterm" name="idxseptemberterroristattacksof"></a><a class="indexterm" name="idp7298432"></a><a class="indexterm" name="idxnewscoverage"></a><p>
1546 <span class="strong"><strong>When two planes</strong></span> crashed into the
1547 World Trade Center, another into the Pentagon, and a fourth into a
1548 Pennsylvania field, all media around the world shifted to this
1549 news. Every moment of just about every day for that week, and for
1550 weeks after, television in particular, and media generally, retold the
1551 story of the events we had just witnessed. The telling was a
1552 retelling, because we had seen the events that were described. The
1553 genius of this awful act of terrorism was that the delayed second
1554 attack was perfectly timed to assure that the whole world would be
1555 watching.
1556 </p><p>
1557 These retellings had an increasingly familiar feel. There was music
1558 scored for the intermissions, and fancy graphics that flashed across
1559 the screen. There was a formula to interviews. There was <span class="quote">«<span class="quote">balance,</span>»</span>
1560 and seriousness. This was news choreographed in the way we have
1561 increasingly come to expect it, <span class="quote">«<span class="quote">news as entertainment,</span>»</span> even if the
1562 entertainment is tragedy.
1563 </p><a class="indexterm" name="idp7303472"></a><a class="indexterm" name="idp7304224"></a><p>
1564 But in addition to this produced news about the <span class="quote">«<span class="quote">tragedy of September
1565 11,</span>»</span> those of us tied to the Internet came to see a very different
1566 production as well. The Internet was filled with accounts of the same
1567 events. Yet these Internet accounts had a very different flavor. Some
1568 people constructed photo pages that captured images from around the
1569 world and presented them as slide shows with text. Some offered open
1570 letters. There were sound recordings. There was anger and frustration.
1571 There were attempts to provide context. There was, in short, an
1572 extraordinary worldwide barn raising, in the sense Mike Godwin uses
1573 the term in his book <em class="citetitle">Cyber Rights</em>, around a news event that had
1574 captured the attention of the world. There was ABC and CBS, but there
1575 was also the Internet.
1576 </p><a class="indexterm" name="idp7307424"></a><p>
1577 I don't mean simply to praise the Internet&#8212;though I do think the
1578 people who supported this form of speech should be praised. I mean
1579 instead to point to a significance in this form of speech. For like a
1580 Kodak, the Internet enables people to capture images. And like in a
1581 movie
1582
1583 by a student on the <span class="quote">«<span class="quote">Just Think!</span>»</span> bus, the visual images could be mixed
1584 with sound or text.
1585 </p><p>
1586 But unlike any technology for simply capturing images, the Internet
1587 allows these creations to be shared with an extraordinary number of
1588 people, practically instantaneously. This is something new in our
1589 tradition&#8212;not just that culture can be captured mechanically,
1590 and obviously not just that events are commented upon critically, but
1591 that this mix of captured images, sound, and commentary can be widely
1592 spread practically instantaneously.
1593 </p><a class="indexterm" name="idp7310048"></a><a class="indexterm" name="idxblogsweblogs"></a><a class="indexterm" name="idxinternetblogson"></a><a class="indexterm" name="idxweblogsblogs"></a><p>
1594 September 11 was not an aberration. It was a beginning. Around the
1595 same time, a form of communication that has grown dramatically was
1596 just beginning to come into public consciousness: the Web-log, or
1597 blog. The blog is a kind of public diary, and within some cultures,
1598 such as in Japan, it functions very much like a diary. In those
1599 cultures, it records private facts in a public way&#8212;it's a kind
1600 of electronic <em class="citetitle">Jerry Springer</em>, available anywhere in the world.
1601 </p><a class="indexterm" name="idp7316784"></a><a class="indexterm" name="idxinternetpublicdiscourseconductedon"></a><p>
1602 But in the United States, blogs have taken on a very different
1603 character.  There are some who use the space simply to talk about
1604 their private life. But there are many who use the space to engage in
1605 public discourse. Discussing matters of public import, criticizing
1606 others who are mistaken in their views, criticizing politicians about
1607 the decisions they make, offering solutions to problems we all see:
1608 blogs create the sense of a virtual public meeting, but one in which
1609 we don't all hope to be there at the same time and in which
1610 conversations are not necessarily linked. The best of the blog entries
1611 are relatively short; they point directly to words used by others,
1612 criticizing with or adding to them.  They are arguably the most
1613 important form of unchoreographed public discourse that we have.
1614 </p><a class="indexterm" name="idxdemocracyintechnologiesofexpression"></a><a class="indexterm" name="idxelections"></a><a class="indexterm" name="idxexpressiontechnologiesofdemocratic"></a><p>
1615 That's a strong statement. Yet it says as much about our democracy as
1616 it does about blogs. This is the part of America that is most
1617 difficult for those of us who love America to accept: Our democracy
1618 has atrophied.  Of course we have elections, and most of the time the
1619 courts allow those elections to count. A relatively small number of
1620 people vote
1621
1622 in those elections. The cycle of these elections has become totally
1623 professionalized and routinized. Most of us think this is democracy.
1624 </p><a class="indexterm" name="idp7325600"></a><a class="indexterm" name="idp7326576"></a><a class="indexterm" name="idp7327552"></a><a class="indexterm" name="idp7328528"></a><a class="indexterm" name="idxdemocracypublicdiscoursein"></a><a class="indexterm" name="idp7330768"></a><p>
1625 But democracy has never just been about elections. Democracy
1626 means rule by the people, but rule means something more than mere
1627 elections. In our tradition, it also means control through reasoned
1628 discourse.  This was the idea that captured the imagination of Alexis
1629 de Tocqueville, the nineteenth-century French lawyer who wrote the
1630 most important account of early <span class="quote">«<span class="quote">Democracy in America.</span>»</span> It wasn't
1631 popular elections that fascinated him&#8212;it was the jury, an
1632 institution that gave ordinary people the right to choose life or
1633 death for other citizens.  And most fascinating for him was that the
1634 jury didn't just vote about the outcome they would impose. They
1635 deliberated. Members argued about the <span class="quote">«<span class="quote">right</span>»</span> result; they tried to
1636 persuade each other of the <span class="quote">«<span class="quote">right</span>»</span> result, and in criminal cases at
1637 least, they had to agree upon a unanimous result for the process to
1638 come to an end.<a href="#ftn.idp7333760" class="footnote" name="idp7333760"><sup class="footnote">[40]</sup></a>
1639 </p><a class="indexterm" name="idp7335040"></a><p>
1640 Yet even this institution flags in American life today. And in its
1641 place, there is no systematic effort to enable citizen deliberation. Some
1642 are pushing to create just such an institution.<a href="#ftn.idp7336480" class="footnote" name="idp7336480"><sup class="footnote">[41]</sup></a>
1643 And in some towns in New England, something close to deliberation
1644 remains. But for most of us for most of the time, there is no time or
1645 place for <span class="quote">«<span class="quote">democratic deliberation</span>»</span> to occur.
1646 </p><a class="indexterm" name="idxpoliticaldiscourse"></a><p>
1647 More bizarrely, there is generally not even permission for it to
1648 occur.  We, the most powerful democracy in the world, have developed a
1649 strong norm against talking about politics. It's fine to talk about
1650 politics with people you agree with. But it is rude to argue about
1651 politics with people you disagree with. Political discourse becomes
1652 isolated, and isolated discourse becomes more extreme.<a href="#ftn.idp7340592" class="footnote" name="idp7340592"><sup class="footnote">[42]</sup></a> We say what our friends want to hear, and hear very
1653 little beyond what our friends say.
1654 </p><a class="indexterm" name="idxblogsweblogs2"></a><a class="indexterm" name="idp7343216"></a><a class="indexterm" name="idxinternetblogson2"></a><a class="indexterm" name="idxweblogsblogs2"></a><a class="indexterm" name="idp7346688"></a><a class="indexterm" name="idp7347664"></a><a class="indexterm" name="idp7348640"></a><p>
1655 Enter the blog. The blog's very architecture solves one part of this
1656 problem. People post when they want to post, and people read when they
1657 want to read. The most difficult time is synchronous time.
1658 Technologies that enable asynchronous communication, such as e-mail,
1659 increase the opportunity for communication. Blogs allow for public
1660
1661
1662 discourse without the public ever needing to gather in a single public
1663 place.
1664 </p><p>
1665 But beyond architecture, blogs also have solved the problem of
1666 norms. There's no norm (yet) in blog space not to talk about politics.
1667 Indeed, the space is filled with political speech, on both the right and
1668 the left. Some of the most popular sites are conservative or libertarian,
1669 but there are many of all political stripes. And even blogs that are not
1670 political cover political issues when the occasion merits.
1671 </p><a class="indexterm" name="idp7351520"></a><p>
1672 The significance of these blogs is tiny now, though not so tiny. The
1673 name Howard Dean may well have faded from the 2004 presidential race
1674 but for blogs. Yet even if the number of readers is small, the reading
1675 is having an effect.
1676 </p><a class="indexterm" name="idp7352896"></a><a class="indexterm" name="idp7353648"></a><a class="indexterm" name="idxmediablogpressureon"></a><a class="indexterm" name="idxinternetnewseventson2"></a><p>
1677 One direct effect is on stories that had a different life cycle in the
1678 mainstream media. The Trent Lott affair is an example. When Lott
1679 <span class="quote">«<span class="quote">misspoke</span>»</span> at a party for Senator Strom Thurmond, essentially praising
1680 Thurmond's segregationist policies, he calculated correctly that this
1681 story would disappear from the mainstream press within forty-eight
1682 hours. It did. But he didn't calculate its life cycle in blog
1683 space. The bloggers kept researching the story. Over time, more and
1684 more instances of the same <span class="quote">«<span class="quote">misspeaking</span>»</span> emerged. Finally, the story
1685 broke back into the mainstream press. In the end, Lott was forced to
1686 resign as senate majority leader.<a href="#ftn.idp7359072" class="footnote" name="idp7359072"><sup class="footnote">[43]</sup></a>
1687 </p><a class="indexterm" name="idxmediacommercialimperativesof"></a><p>
1688 This different cycle is possible because the same commercial pressures
1689 don't exist with blogs as with other ventures. Television and
1690 newspapers are commercial entities. They must work to keep attention.
1691 If they lose readers, they lose revenue. Like sharks, they must move
1692 on.
1693 </p><a class="indexterm" name="idp7362512"></a><a class="indexterm" name="idp7363488"></a><p>
1694 But bloggers don't have a similar constraint. They can obsess, they
1695 can focus, they can get serious. If a particular blogger writes a
1696 particularly interesting story, more and more people link to that
1697 story. And as the number of links to a particular story increases, it
1698 rises in the ranks of stories. People read what is popular; what is
1699 popular has been selected by a very democratic process of
1700 peer-generated rankings.
1701 </p><a class="indexterm" name="idp7365312"></a><a class="indexterm" name="idxjournalism"></a><a class="indexterm" name="idxwinerdave"></a><p>
1702 There's a second way, as well, in which blogs have a different cycle
1703
1704 from the mainstream press. As Dave Winer, one of the fathers of this
1705 movement and a software author for many decades, told me, another
1706 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
1707 have to take the conflict of interest</span>»</span> out of journalism, Winer told me.
1708 <span class="quote">«<span class="quote">An amateur journalist simply doesn't have a conflict of interest, or the
1709 conflict of interest is so easily disclosed that you know you can sort of
1710 get it out of the way.</span>»</span>
1711 </p><a class="indexterm" name="idp7371008"></a><a class="indexterm" name="idp7371760"></a><a class="indexterm" name="idp7372768"></a><a class="indexterm" name="idp7373520"></a><p>
1712 These conflicts become more important as media becomes more
1713 concentrated (more on this below). A concentrated media can hide more
1714 from the public than an unconcentrated media can&#8212;as CNN admitted
1715 it did after the Iraq war because it was afraid of the consequences to
1716 its own employees.<a href="#ftn.idp7332544" class="footnote" name="idp7332544"><sup class="footnote">[44]</sup></a>
1717 It also needs to sustain a more coherent account. (In the middle of
1718 the Iraq war, I read a post on the Internet from someone who was at
1719 that time listening to a satellite uplink with a reporter in Iraq. The
1720 New York headquarters was telling the reporter over and over that her
1721 account of the war was too bleak: She needed to offer a more
1722 optimistic story. When she told New York that wasn't warranted, they
1723 told her that <span class="emphasis"><em>they</em></span> were writing <span class="quote">«<span class="quote">the story.</span>»</span>)
1724 </p><a class="indexterm" name="idp7377248"></a><p>
1725 Blog space gives amateurs a way to enter the
1726 debate&#8212;<span class="quote">«<span class="quote">amateur</span>»</span> not in the sense of inexperienced,
1727 but in the sense of an Olympic athlete, meaning not paid by anyone to
1728 give their reports. It allows for a much broader range of input into a
1729 story, as reporting on the Columbia disaster revealed, when hundreds
1730 from across the southwest United States turned to the Internet to
1731 retell what they had seen.<a href="#ftn.idp7379216" class="footnote" name="idp7379216"><sup class="footnote">[45]</sup></a>
1732 And it drives readers to read across the range of accounts and
1733 <span class="quote">«<span class="quote">triangulate,</span>»</span> as Winer puts it, the truth. Blogs, Winer says, are
1734 <span class="quote">«<span class="quote">communicating directly with our constituency, and the middle man is
1735 out of it</span>»</span>&#8212;with all the benefits, and costs, that might entail.
1736 </p><p>
1737 Winer is optimistic about the future of journalism infected
1738 with blogs. <span class="quote">«<span class="quote">It's going to become an essential skill,</span>»</span> Winer predicts,
1739 for public figures and increasingly for private figures as well. It's
1740 not clear that <span class="quote">«<span class="quote">journalism</span>»</span> is happy about this&#8212;some journalists
1741 have been told to curtail their blogging.<a href="#ftn.idp7382736" class="footnote" name="idp7382736"><sup class="footnote">[46]</sup></a>
1742 But it is clear that we are still in transition. <span class="quote">«<span class="quote">A
1743
1744
1745 lot of what we are doing now is warm-up exercises,</span>»</span> Winer told me.
1746 There is a lot that must mature before this space has its mature effect.
1747 And as the inclusion of content in this space is the least infringing use
1748 of the Internet (meaning infringing on copyright), Winer said, <span class="quote">«<span class="quote">we will
1749 be the last thing that gets shut down.</span>»</span>
1750 </p><a class="indexterm" name="idp7391664"></a><p>
1751 This speech affects democracy. Winer thinks that happens because <span class="quote">«<span class="quote">you
1752 don't have to work for somebody who controls, [for] a gatekeeper.</span>»</span>
1753 That is true. But it affects democracy in another way as well.  As
1754 more and more citizens express what they think, and defend it in
1755 writing, that will change the way people understand public issues. It
1756 is easy to be wrong and misguided in your head. It is harder when the
1757 product of your mind can be criticized by others. Of course, it is a
1758 rare human who admits that he has been persuaded that he is wrong. But
1759 it is even rarer for a human to ignore when he has been proven wrong.
1760 The writing of ideas, arguments, and criticism improves democracy.
1761 Today there are probably a couple of million blogs where such writing
1762 happens. When there are ten million, there will be something
1763 extraordinary to report.
1764 </p><a class="indexterm" name="idp7394288"></a><a class="indexterm" name="idp7395264"></a><a class="indexterm" name="idp7396240"></a><a class="indexterm" name="idp7397216"></a><a class="indexterm" name="idp7398192"></a><a class="indexterm" name="idp7399168"></a><a class="indexterm" name="idp7400144"></a><a class="indexterm" name="idxbrownjohnseely"></a><a class="indexterm" name="idxadvertising1"></a><p>
1765 <span class="strong"><strong>John Seely Brown</strong></span> is the chief
1766 scientist of the Xerox Corporation.  His work, as his Web site
1767 describes it, is <span class="quote">«<span class="quote">human learning and &#8230; the creation of
1768 knowledge ecologies for creating &#8230; innovation.</span>»</span>
1769 </p><p>
1770 Brown thus looks at these technologies of digital creativity a bit
1771 differently from the perspectives I've sketched so far. I'm sure he
1772 would be excited about any technology that might improve
1773 democracy. But his real excitement comes from how these technologies
1774 affect learning.
1775 </p><p>
1776 As Brown believes, we learn by tinkering. When <span class="quote">«<span class="quote">a lot of us grew up,</span>»</span>
1777 he explains, that tinkering was done <span class="quote">«<span class="quote">on motorcycle engines, lawnmower
1778 engines, automobiles, radios, and so on.</span>»</span> But digital technologies
1779 enable a different kind of tinkering&#8212;with abstract ideas though
1780 in concrete form. The kids at Just Think! not only think about how a
1781 commercial portrays a politician; using digital technology, they can
1782
1783 take the commercial apart and manipulate it, tinker with it to see how
1784 it does what it does. Digital technologies launch a kind of bricolage,
1785 or <span class="quote">«<span class="quote">free collage,</span>»</span> as Brown calls it. Many get to add to or transform
1786 the tinkering of many others.
1787 </p><p>
1788 The best large-scale example of this kind of tinkering so far is free
1789 software or open-source software (FS/OSS). FS/OSS is software whose
1790 source code is shared. Anyone can download the technology that makes a
1791 FS/OSS program run. And anyone eager to learn how a particular bit of
1792 FS/OSS technology works can tinker with the code.
1793 </p><p>
1794 This opportunity creates a <span class="quote">«<span class="quote">completely new kind of learning platform,</span>»</span>
1795 as Brown describes. <span class="quote">«<span class="quote">As soon as you start doing that, you &#8230;
1796 unleash a free collage on the community, so that other people can
1797 start looking at your code, tinkering with it, trying it out, seeing
1798 if they can improve it.</span>»</span> Each effort is a kind of
1799 apprenticeship. <span class="quote">«<span class="quote">Open source becomes a major apprenticeship platform.</span>»</span>
1800 </p><p>
1801 In this process, <span class="quote">«<span class="quote">the concrete things you tinker with are abstract.
1802 They are code.</span>»</span> Kids are <span class="quote">«<span class="quote">shifting to the ability to tinker in the
1803 abstract, and this tinkering is no longer an isolated activity that
1804 you're doing in your garage. You are tinkering with a community
1805 platform. &#8230;  You are tinkering with other people's stuff. The more
1806 you tinker the more you improve.</span>»</span> The more you improve, the more you
1807 learn.
1808 </p><p>
1809 This same thing happens with content, too. And it happens in the same
1810 collaborative way when that content is part of the Web. As Brown puts
1811 it, <span class="quote">«<span class="quote">the Web [is] the first medium that truly honors multiple forms of
1812 intelligence.</span>»</span> Earlier technologies, such as the typewriter or word
1813 processors, helped amplify text. But the Web amplifies much more than
1814 text. <span class="quote">«<span class="quote">The Web &#8230; says if you are musical, if you are artistic, if
1815 you are visual, if you are interested in film &#8230; [then] there is a
1816 lot you can start to do on this medium. [It] can now amplify and honor
1817 these multiple forms of intelligence.</span>»</span>
1818 </p><a class="indexterm" name="idp7414112"></a><a class="indexterm" name="idp7415088"></a><p>
1819 Brown is talking about what Elizabeth Daley, Stephanie Barish, and
1820 Just Think! teach: that this tinkering with culture teaches as well
1821
1822
1823 as creates. It develops talents differently, and it builds a different
1824 kind of recognition.
1825 </p><p>
1826 Yet the freedom to tinker with these objects is not guaranteed.
1827 Indeed, as we'll see through the course of this book, that freedom is
1828 increasingly highly contested. While there's no doubt that your father
1829 had the right to tinker with the car engine, there's great doubt that
1830 your child will have the right to tinker with the images she finds all
1831 around.  The law and, increasingly, technology interfere with a
1832 freedom that technology, and curiosity, would otherwise ensure.
1833 </p><p>
1834 These restrictions have become the focus of researchers and scholars.
1835 Professor Ed Felten of Princeton (whom we'll see more of in chapter
1836 <a class="xref" href="#property-i" title="Chapter 10. CHAPTER TEN: «Property»">10</a>)
1837 has developed a powerful argument in favor of the <span class="quote">«<span class="quote">right to
1838 tinker</span>»</span> as it applies to computer science and to knowledge in
1839 general.<a href="#ftn.idp7419248" class="footnote" name="idp7419248"><sup class="footnote">[47]</sup></a>
1840 But Brown's concern is earlier, or younger, or more fundamental. It is
1841 about the learning that kids can do, or can't do, because of the law.
1842 </p><p>
1843 <span class="quote">«<span class="quote">This is where education in the twenty-first century is going,</span>»</span> Brown
1844 explains. We need to <span class="quote">«<span class="quote">understand how kids who grow up digital think
1845 and want to learn.</span>»</span>
1846 </p><p>
1847 <span class="quote">«<span class="quote">Yet,</span>»</span> as Brown continued, and as the balance of this book will
1848 evince, <span class="quote">«<span class="quote">we are building a legal system that completely suppresses the
1849 natural tendencies of today's digital kids. &#8230; We're building an
1850 architecture that unleashes 60 percent of the brain [and] a legal
1851 system that closes down that part of the brain.</span>»</span>
1852 </p><a class="indexterm" name="idp7424032"></a><p>
1853 We're building a technology that takes the magic of Kodak, mixes
1854 moving images and sound, and adds a space for commentary and an
1855 opportunity to spread that creativity everywhere. But we're building
1856 the law to close down that technology.
1857 </p><p>
1858 <span class="quote">«<span class="quote">No way to run a culture,</span>»</span> as Brewster Kahle, whom we'll meet in
1859 chapter <a class="xref" href="#collectors" title="Chapter 9. CHAPTER NINE: Collectors">9</a>,
1860 quipped to me in a rare moment of despondence.
1861 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7178400" class="footnote"><p><a href="#idp7178400" class="para"><sup class="para">[26] </sup></a>
1862
1863 Reese V. Jenkins, <em class="citetitle">Images and Enterprise</em> (Baltimore: Johns Hopkins University Press, 1975), 112.
1864 </p></div><div id="ftn.idp7102112" class="footnote"><p><a href="#idp7102112" class="para"><sup class="para">[27] </sup></a>
1865
1866 <a class="indexterm" name="idp7182032"></a>
1867 Brian Coe, <em class="citetitle">The Birth of Photography</em> (New York: Taplinger Publishing,
1868 1977), 53.
1869 </p></div><div id="ftn.idp7185424" class="footnote"><p><a href="#idp7185424" class="para"><sup class="para">[28] </sup></a>
1870
1871 Jenkins, 177.
1872 </p></div><div id="ftn.idp7186320" class="footnote"><p><a href="#idp7186320" class="para"><sup class="para">[29] </sup></a>
1873
1874 Based on a chart in Jenkins, p. 178.
1875 </p></div><div id="ftn.idp7180832" class="footnote"><p><a href="#idp7180832" class="para"><sup class="para">[30] </sup></a>
1876
1877 Coe, 58.
1878 </p></div><div id="ftn.idp7197040" class="footnote"><p><a href="#idp7197040" class="para"><sup class="para">[31] </sup></a>
1879
1880 For illustrative cases, see, for example, <em class="citetitle">Pavesich</em>
1881 v. <em class="citetitle">N.E. Life Ins. Co</em>., 50 S.E. 68 (Ga. 1905);
1882 <em class="citetitle">Foster-Milburn Co</em>. v. <em class="citetitle">Chinn</em>, 123090 S.W. 364, 366
1883 (Ky. 1909); <em class="citetitle">Corliss</em> v. <em class="citetitle">Walker</em>, 64 F. 280 (Mass.
1884 Dist. Ct. 1894).
1885 </p></div><div id="ftn.idp7208592" class="footnote"><p><a href="#idp7208592" class="para"><sup class="para">[32] </sup></a>
1886
1887 Samuel D. Warren and Louis D. Brandeis, <span class="quote">«<span class="quote">The Right to Privacy,</span>»</span>
1888 <em class="citetitle">Harvard Law Review</em> 4 (1890): 193.
1889 <a class="indexterm" name="idp7210128"></a>
1890 <a class="indexterm" name="idp7210880"></a>
1891 </p></div><div id="ftn.idp7214368" class="footnote"><p><a href="#idp7214368" class="para"><sup class="para">[33] </sup></a>
1892
1893 See Melville B. Nimmer, <span class="quote">«<span class="quote">The Right of Publicity,</span>»</span> <em class="citetitle">Law and Contemporary
1894 Problems</em> 19 (1954): 203; William L. Prosser, <span class="quote">«<span class="quote">Privacy,</span>»</span> <em class="citetitle">California Law
1895 Review</em> 48 (1960) 398&#8211;407; <em class="citetitle">White</em> v. <em class="citetitle">Samsung Electronics America,
1896 Inc</em>., 971 F.  2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951
1897 (1993).
1898 </p></div><div id="ftn.idp7240608" class="footnote"><p><a href="#idp7240608" class="para"><sup class="para">[34] </sup></a>
1899
1900 H. Edward Goldberg, <span class="quote">«<span class="quote">Essential Presentation Tools: Hardware and
1901 Software You Need to Create Digital Multimedia Presentations,</span>»</span>
1902 cadalyst, February 2002, available at
1903 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #7</a>.
1904 </p></div><div id="ftn.idp7250960" class="footnote"><p><a href="#idp7250960" class="para"><sup class="para">[35] </sup></a>
1905
1906 Judith Van Evra, <em class="citetitle">Television and Child Development</em> (Hillsdale, N.J.:
1907 Lawrence Erlbaum Associates, 1990); <span class="quote">«<span class="quote">Findings on Family and TV
1908 Study,</span>»</span> <em class="citetitle">Denver Post</em>, 25 May 1997, B6.
1909 </p></div><div id="ftn.idp7245280" class="footnote"><p><a href="#idp7245280" class="para"><sup class="para">[36] </sup></a>
1910
1911 Interview with Elizabeth Daley and Stephanie Barish, 13 December
1912 2002.
1913 <a class="indexterm" name="idp7260400"></a>
1914 <a class="indexterm" name="idp7261152"></a>
1915 </p></div><div id="ftn.idp7262944" class="footnote"><p><a href="#idp7262944" class="para"><sup class="para">[37] </sup></a>
1916
1917 See Scott Steinberg, <span class="quote">«<span class="quote">Crichton Gets Medieval on PCs,</span>»</span> E!online, 4
1918 November 2000, available at
1919 <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,
1920 available at
1921 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #9</a>.
1922 </p></div><div id="ftn.idp7271584" class="footnote"><p><a href="#idp7271584" class="para"><sup class="para">[38] </sup></a>
1923
1924 Interview with Daley and Barish.
1925 <a class="indexterm" name="idp7272352"></a>
1926 </p></div><div id="ftn.idp7273568" class="footnote"><p><a href="#idp7273568" class="para"><sup class="para">[39] </sup></a>
1927
1928 Ibid.
1929 </p></div><div id="ftn.idp7333760" class="footnote"><p><a href="#idp7333760" class="para"><sup class="para">[40] </sup></a>
1930
1931 See, for example, Alexis de Tocqueville, <em class="citetitle">Democracy in America</em>,
1932 bk. 1, trans.  Henry Reeve (New York: Bantam Books, 2000), ch. 16.
1933 </p></div><div id="ftn.idp7336480" class="footnote"><p><a href="#idp7336480" class="para"><sup class="para">[41] </sup></a>
1934
1935 Bruce Ackerman and James Fishkin, <span class="quote">«<span class="quote">Deliberation Day,</span>»</span> <em class="citetitle">Journal of
1936 Political Philosophy</em> 10 (2) (2002): 129.
1937 </p></div><div id="ftn.idp7340592" class="footnote"><p><a href="#idp7340592" class="para"><sup class="para">[42] </sup></a>
1938
1939 Cass Sunstein, <em class="citetitle">Republic.com</em> (Princeton: Princeton University Press, 2001),
1940 65&#8211;80, 175, 182, 183, 192.
1941 </p></div><div id="ftn.idp7359072" class="footnote"><p><a href="#idp7359072" class="para"><sup class="para">[43] </sup></a>
1942
1943 Noah Shachtman, <span class="quote">«<span class="quote">With Incessant Postings, a Pundit Stirs the Pot,</span>»</span> New
1944 York Times, 16 January 2003, G5.
1945 </p></div><div id="ftn.idp7332544" class="footnote"><p><a href="#idp7332544" class="para"><sup class="para">[44] </sup></a>
1946
1947 Telephone interview with David Winer, 16 April 2003.
1948 </p></div><div id="ftn.idp7379216" class="footnote"><p><a href="#idp7379216" class="para"><sup class="para">[45] </sup></a>
1949
1950 John Schwartz, <span class="quote">«<span class="quote">Loss of the Shuttle: The Internet; A Wealth of
1951 Information Online,</span>»</span> <em class="citetitle">New York Times</em>, 2 February 2003, A28; Staci
1952 D. Kramer, <span class="quote">«<span class="quote">Shuttle Disaster Coverage Mixed, but Strong Overall,</span>»</span>
1953 Online Journalism Review, 2 February 2003, available at
1954 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #10</a>.
1955 </p></div><div id="ftn.idp7382736" class="footnote"><p><a href="#idp7382736" class="para"><sup class="para">[46] </sup></a>
1956
1957 <a class="indexterm" name="idp7385168"></a>
1958 <a class="indexterm" name="idp7385920"></a>
1959 <a class="indexterm" name="idp7386672"></a>
1960 <a class="indexterm" name="idp7387424"></a>
1961 See Michael Falcone, <span class="quote">«<span class="quote">Does an Editor's Pencil Ruin a Web Log?</span>»</span> <em class="citetitle">New
1962 York Times</em>, 29 September 2003, C4. (<span class="quote">«<span class="quote">Not all news organizations have
1963 been as accepting of employees who blog. Kevin Sites, a CNN
1964 correspondent in Iraq who started a blog about his reporting of the
1965 war on March 9, stopped posting 12 days later at his bosses'
1966 request. Last year Steve Olafson, a <em class="citetitle">Houston Chronicle</em> reporter, was
1967 fired for keeping a personal Web log, published under a pseudonym,
1968 that dealt with some of the issues and people he was covering.</span>»</span>)
1969 </p></div><div id="ftn.idp7419248" class="footnote"><p><a href="#idp7419248" class="para"><sup class="para">[47] </sup></a>
1970
1971 See, for example, Edward Felten and Andrew Appel, <span class="quote">«<span class="quote">Technological Access
1972 Control Interferes with Noninfringing Scholarship,</span>»</span> <em class="citetitle">Communications
1973 of the Association for Computer Machinery</em> 43 (2000): 9.
1974 </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="idp7428656"></a><a class="indexterm" name="idp7429408"></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>
1975 <span class="strong"><strong>In the fall</strong></span> of 2002, Jesse Jordan
1976 of Oceanside, New York, enrolled as a freshman at Rensselaer
1977 Polytechnic Institute, in Troy, New York.  His major at RPI was
1978 information technology. Though he is not a programmer, in October
1979 Jesse decided to begin to tinker with search engine technology that
1980 was available on the RPI network.
1981 </p><p>
1982 RPI is one of America's foremost technological research institutions.
1983 It offers degrees in fields ranging from architecture and engineering
1984 to information sciences. More than 65 percent of its five thousand
1985 undergraduates finished in the top 10 percent of their high school
1986 class. The school is thus a perfect mix of talent and experience to
1987 imagine and then build, a generation for the network age.
1988 </p><p>
1989 RPI's computer network links students, faculty, and administration to
1990 one another. It also links RPI to the Internet. Not everything
1991 available on the RPI network is available on the Internet. But the
1992 network is designed to enable students to get access to the Internet,
1993 as well as more intimate access to other members of the RPI community.
1994 </p><a class="indexterm" name="idxgoogle"></a><p>
1995 Search engines are a measure of a network's intimacy. Google
1996
1997 brought the Internet much closer to all of us by fantastically
1998 improving the quality of search on the network. Specialty search
1999 engines can do this even better. The idea of <span class="quote">«<span class="quote">intranet</span>»</span> search
2000 engines, search engines that search within the network of a particular
2001 institution, is to provide users of that institution with better
2002 access to material from that institution.  Businesses do this all the
2003 time, enabling employees to have access to material that people
2004 outside the business can't get. Universities do it as well.
2005 </p><a class="indexterm" name="idxjordanjesse"></a><a class="indexterm" name="idxmicrosoftnetworkfilesystemof"></a><p>
2006 These engines are enabled by the network technology itself.
2007 Microsoft, for example, has a network file system that makes it very
2008 easy for search engines tuned to that network to query the system for
2009 information about the publicly (within that network) available
2010 content.  Jesse's search engine was built to take advantage of this
2011 technology. It used Microsoft's network file system to build an index
2012 of all the files available within the RPI network.
2013 </p><a class="indexterm" name="idp7446576"></a><p>
2014 Jesse's wasn't the first search engine built for the RPI network.
2015 Indeed, his engine was a simple modification of engines that others
2016 had built. His single most important improvement over those engines
2017 was to fix a bug within the Microsoft file-sharing system that could
2018 cause a user's computer to crash. With the engines that existed
2019 before, if you tried to access a file through a Windows browser that
2020 was on a computer that was off-line, your computer could crash. Jesse
2021 modified the system a bit to fix that problem, by adding a button that
2022 a user could click to see if the machine holding the file was still
2023 on-line.
2024 </p><a class="indexterm" name="idp7448576"></a><p>
2025 Jesse's engine went on-line in late October. Over the following six
2026 months, he continued to tweak it to improve its functionality. By
2027 March, the system was functioning quite well. Jesse had more than one
2028 million files in his directory, including every type of content that might
2029 be on users' computers.
2030 </p><a class="indexterm" name="idp7450256"></a><p>
2031 Thus the index his search engine produced included pictures, which
2032 students could use to put on their own Web sites; copies of notes or
2033 research; copies of information pamphlets; movie clips that students
2034 might have created; university brochures&#8212;basically anything that
2035
2036 users of the RPI network made available in a public folder of their
2037 computer.
2038 </p><a class="indexterm" name="idp7452288"></a><a class="indexterm" name="idp7453040"></a><p>
2039 But the index also included music files. In fact, one quarter of the
2040 files that Jesse's search engine listed were music files. But that
2041 means, of course, that three quarters were not, and&#8212;so that this
2042 point is absolutely clear&#8212;Jesse did nothing to induce people to
2043 put music files in their public folders. He did nothing to target the
2044 search engine to these files. He was a kid tinkering with a
2045 Google-like technology at a university where he was studying
2046 information science, and hence, tinkering was the aim. Unlike Google,
2047 or Microsoft, for that matter, he made no money from this tinkering;
2048 he was not connected to any business that would make any money from
2049 this experiment. He was a kid tinkering with technology in an
2050 environment where tinkering with technology was precisely what he was
2051 supposed to do.
2052 </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="idp7461744"></a><p>
2053 On April 3, 2003, Jesse was contacted by the dean of students at
2054 RPI. The dean informed Jesse that the Recording Industry Association
2055 of America, the RIAA, would be filing a lawsuit against him and three
2056 other students whom he didn't even know, two of them at other
2057 universities.  A few hours later, Jesse was served with papers from
2058 the suit.  As he read these papers and watched the news reports about
2059 them, he was increasingly astonished.
2060 </p><p>
2061 <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
2062 wrong. &#8230;  I don't think there's anything wrong with the search
2063 engine that I ran or &#8230; what I had done to it. I mean, I hadn't
2064 modified it in any way that promoted or enhanced the work of
2065 pirates. I just modified the search engine in a way that would make it
2066 easier to use</span>»</span>&#8212;again, a <span class="emphasis"><em>search engine</em></span>,
2067 which Jesse had not himself built, using the Windows filesharing
2068 system, which Jesse had not himself built, to enable members of the
2069 RPI community to get access to content, which Jesse had not himself
2070 created or posted, and the vast majority of which had nothing to do
2071 with music.
2072 </p><a class="indexterm" name="idp7465888"></a><a class="indexterm" name="idp7466864"></a><a class="indexterm" name="idp7467872"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitsindividualdefendantsintimidatedby"></a><a class="indexterm" name="idp7470528"></a><a class="indexterm" name="idxrecordingindustryassociationofamericariaaintimidationtacticsof"></a><p>
2073 But the RIAA branded Jesse a pirate. They claimed he operated a
2074 network and had therefore <span class="quote">«<span class="quote">willfully</span>»</span> violated copyright laws. They
2075
2076 demanded that he pay them the damages for his wrong. For cases of
2077 <span class="quote">«<span class="quote">willful infringement,</span>»</span> the Copyright Act specifies something lawyers
2078 call <span class="quote">«<span class="quote">statutory damages.</span>»</span> These damages permit a copyright owner to
2079 claim $150,000 per infringement. As the RIAA alleged more than one
2080 hundred specific copyright infringements, they therefore demanded that
2081 Jesse pay them at least $15,000,000.
2082 </p><a class="indexterm" name="idp7475072"></a><a class="indexterm" name="idp7475824"></a><p>
2083 Similar lawsuits were brought against three other students: one other
2084 student at RPI, one at Michigan Technical University, and one at
2085 Princeton. Their situations were similar to Jesse's. Though each case
2086 was different in detail, the bottom line in each was exactly the same:
2087 huge demands for <span class="quote">«<span class="quote">damages</span>»</span> that the RIAA claimed it was entitled to.
2088 If you added up the claims, these four lawsuits were asking courts in
2089 the United States to award the plaintiffs close to $100
2090 <span class="emphasis"><em>billion</em></span>&#8212;six times the
2091 <span class="emphasis"><em>total</em></span> profit of the film industry in
2092 2001.<a href="#ftn.idp7478480" class="footnote" name="idp7478480"><sup class="footnote">[48]</sup></a>
2093 </p><a class="indexterm" name="idp7480256"></a><p>
2094 Jesse called his parents. They were supportive but a bit frightened.
2095 An uncle was a lawyer. He began negotiations with the RIAA. They
2096 demanded to know how much money Jesse had. Jesse had saved
2097 $12,000 from summer jobs and other employment. They demanded
2098 $12,000 to dismiss the case.
2099 </p><a class="indexterm" name="idp7481920"></a><p>
2100 The RIAA wanted Jesse to admit to doing something wrong. He
2101 refused. They wanted him to agree to an injunction that would
2102 essentially make it impossible for him to work in many fields of
2103 technology for the rest of his life. He refused. They made him
2104 understand that this process of being sued was not going to be
2105 pleasant. (As Jesse's father recounted to me, the chief lawyer on the
2106 case, Matt Oppenheimer, told Jesse, <span class="quote">«<span class="quote">You don't want to pay another
2107 visit to a dentist like me.</span>»</span>) And throughout, the RIAA insisted it
2108 would not settle the case until it took every penny Jesse had saved.
2109 </p><a class="indexterm" name="idp7484080"></a><p>
2110 Jesse's family was outraged at these claims. They wanted to fight.
2111 But Jesse's uncle worked to educate the family about the nature of the
2112 American legal system. Jesse could fight the RIAA. He might even
2113 win. But the cost of fighting a lawsuit like this, Jesse was told, would be
2114 at least $250,000. If he won, he would not recover that money. If he
2115
2116 won, he would have a piece of paper saying he had won, and a piece of
2117 paper saying he and his family were bankrupt.
2118 </p><p>
2119 So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
2120 or $12,000 and a settlement.
2121 </p><a class="indexterm" name="idp7486464"></a><a class="indexterm" name="idp7487472"></a><a class="indexterm" name="idp7488480"></a><p>
2122 The recording industry insists this is a matter of law and morality.
2123 Let's put the law aside for a moment and think about the morality.
2124 Where is the morality in a lawsuit like this? What is the virtue in
2125 scapegoatism? The RIAA is an extraordinarily powerful lobby. The
2126 president of the RIAA is reported to make more than $1 million a year.
2127 Artists, on the other hand, are not well paid. The average recording
2128 artist makes $45,900.<a href="#ftn.idp7490192" class="footnote" name="idp7490192"><sup class="footnote">[49]</sup></a>
2129 There are plenty of ways for the RIAA to affect
2130 and direct policy. So where is the morality in taking money from a
2131 student for running a search engine?<a href="#ftn.idp7491760" class="footnote" name="idp7491760"><sup class="footnote">[50]</sup></a>
2132 </p><a class="indexterm" name="idp7493424"></a><a class="indexterm" name="idp7494560"></a><p>
2133 On June 23, Jesse wired his savings to the lawyer working for the
2134 RIAA. The case against him was then dismissed. And with this, this
2135 kid who had tinkered a computer into a $15 million lawsuit became an
2136 activist:
2137 </p><div class="blockquote"><blockquote class="blockquote"><p>
2138 I was definitely not an activist [before]. I never really meant to be
2139 an activist. &#8230; [But] I've been pushed into this. In no way did I
2140 ever foresee anything like this, but I think it's just completely
2141 absurd what the RIAA has done.
2142 </p></blockquote></div><p>
2143 Jesse's parents betray a certain pride in their reluctant activist. As
2144 his father told me, Jesse <span class="quote">«<span class="quote">considers himself very conservative, and so do
2145 I. &#8230; He's  not a tree hugger. &#8230; I  think it's bizarre that they would
2146 pick on him. But he wants to let people know that they're sending the
2147 wrong message. And he wants to correct the record.</span>»</span>
2148 </p><a class="indexterm" name="idp7498464"></a><a class="indexterm" name="idp7499440"></a><a class="indexterm" name="idp7500416"></a><a class="indexterm" name="idp7501392"></a><a class="indexterm" name="idp7502528"></a><a class="indexterm" name="idp7503504"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7478480" class="footnote"><p><a href="#idp7478480" class="para"><sup class="para">[48] </sup></a>
2149
2150
2151 Tim Goral, <span class="quote">«<span class="quote">Recording Industry Goes After Campus P-2-P Networks:
2152 Suit Alleges $97.8 Billion in Damages,</span>»</span> <em class="citetitle">Professional Media Group LCC</em> 6
2153 (2003): 5, available at 2003 WL 55179443.
2154 </p></div><div id="ftn.idp7490192" class="footnote"><p><a href="#idp7490192" class="para"><sup class="para">[49] </sup></a>
2155
2156 Occupational Employment Survey, U.S. Dept. of Labor (2001)
2157 (27&#8211;2042&#8212;Musicians and Singers). See also National Endowment for
2158 the Arts, <em class="citetitle">More Than One in a Blue Moon</em> (2000).
2159 </p></div><div id="ftn.idp7491760" class="footnote"><p><a href="#idp7491760" class="para"><sup class="para">[50] </sup></a>
2160
2161 Douglas Lichtman makes a related point in <span class="quote">«<span class="quote">KaZaA and Punishment,</span>»</span>
2162 <em class="citetitle">Wall Street Journal</em>, 10 September 2003, A24.
2163 </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="idp7507920"></a><p>
2164 <span class="strong"><strong>If <span class="quote">«<span class="quote">piracy</span>»</span> means</strong></span>
2165 using the creative property of others without their
2166 permission&#8212;if <span class="quote">«<span class="quote">if value, then right</span>»</span> is
2167 true&#8212;then the history of the content industry is a history of
2168 piracy. Every important sector of <span class="quote">«<span class="quote">big media</span>»</span>
2169 today&#8212;film, records, radio, and cable TV&#8212;was born of a
2170 kind of piracy so defined. The consistent story is how last
2171 generation's pirates join this generation's country club&#8212;until
2172 now.
2173 </p><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="film"></a>4.1. Film</h2></div></div></div><p>
2174 The film industry of Hollywood was built by fleeing pirates.<a href="#ftn.idp7512624" class="footnote" name="idp7512624"><sup class="footnote">[51]</sup></a>
2175 Creators and directors migrated from the East Coast to California in
2176 the early twentieth century in part to escape controls that patents
2177 granted the inventor of filmmaking, Thomas Edison. These controls were
2178 exercised through a monopoly <span class="quote">«<span class="quote">trust,</span>»</span> the Motion Pictures Patents
2179 Company, and were based on Thomas Edison's creative
2180 property&#8212;patents.  Edison formed the MPPC to exercise the rights
2181 this creative property
2182
2183 gave him, and the MPPC was serious about the control it demanded.
2184 </p><p>
2185 As one commentator tells one part of the story,
2186 </p><div class="blockquote"><blockquote class="blockquote"><p>
2187 A January 1909 deadline was set for all companies to comply with
2188 the license. By February, unlicensed outlaws, who referred to
2189 themselves as independents protested the trust and carried on
2190 business without submitting to the Edison monopoly. In the
2191 summer of 1909 the independent movement was in full-swing,
2192 with producers and theater owners using illegal equipment and
2193 imported film stock to create their own underground market.
2194 </p><a class="indexterm" name="idp7517920"></a><a class="indexterm" name="idp7518560"></a><a class="indexterm" name="idp7519312"></a><p>
2195 With the country experiencing a tremendous expansion in the number of
2196 nickelodeons, the Patents Company reacted to the independent movement
2197 by forming a strong-arm subsidiary known as the General Film Company
2198 to block the entry of non-licensed independents. With coercive tactics
2199 that have become legendary, General Film confiscated unlicensed
2200 equipment, discontinued product supply to theaters which showed
2201 unlicensed films, and effectively monopolized distribution with the
2202 acquisition of all U.S. film exchanges, except for the one owned by
2203 the independent William Fox who defied the Trust even after his
2204 license was revoked.<a href="#ftn.idp7520960" class="footnote" name="idp7520960"><sup class="footnote">[52]</sup></a>
2205 </p></blockquote></div><p>
2206 The Napsters of those days, the <span class="quote">«<span class="quote">independents,</span>»</span> were companies like
2207 Fox. And no less than today, these independents were vigorously
2208 resisted.  <span class="quote">«<span class="quote">Shooting was disrupted by machinery stolen, and
2209 `accidents' resulting in loss of negatives, equipment, buildings and
2210 sometimes life and limb frequently occurred.</span>»</span><a href="#ftn.idp7526416" class="footnote" name="idp7526416"><sup class="footnote">[53]</sup></a>
2211 That led the independents to flee the East
2212 Coast. California was remote enough from Edison's reach that
2213 filmmakers there could pirate his inventions without fear of the
2214 law. And the leaders of Hollywood filmmaking, Fox most prominently,
2215 did just that.
2216 </p><p>
2217 Of course, California grew quickly, and the effective enforcement
2218 of federal law eventually spread west. But because patents grant the
2219 patent holder a truly <span class="quote">«<span class="quote">limited</span>»</span> monopoly (just seventeen years at that
2220
2221
2222 time), by the time enough federal marshals appeared, the patents had
2223 expired. A new industry had been born, in part from the piracy of
2224 Edison's creative property.
2225 </p></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="recordedmusic"></a>4.2. Recorded Music</h2></div></div></div><a class="indexterm" name="idxcopyrightlawonmusicrecordings"></a><p>
2226 The record industry was born of another kind of piracy, though to see
2227 how requires a bit of detail about the way the law regulates music.
2228 </p><a class="indexterm" name="idxfourneauxhenri"></a><a class="indexterm" name="idp7534624"></a><p>
2229 At the time that Edison and Henri Fourneaux invented machines
2230 for reproducing music (Edison the phonograph, Fourneaux the player
2231 piano), the law gave composers the exclusive right to control copies of
2232 their music and the exclusive right to control public performances of
2233 their music. In other words, in 1900, if I wanted a copy of Phil Russel's
2234 1899 hit <span class="quote">«<span class="quote">Happy Mose,</span>»</span> the law said I would have to pay for the right
2235 to get a copy of the musical score, and I would also have to pay for the
2236 right to perform it publicly.
2237 </p><a class="indexterm" name="idp7536672"></a><p>
2238 But what if I wanted to record <span class="quote">«<span class="quote">Happy Mose,</span>»</span> using Edison's phonograph
2239 or Fourneaux's player piano?  Here the law stumbled. It was clear
2240 enough that I would have to buy any copy of the musical score that I
2241 performed in making this recording. And it was clear enough that I
2242 would have to pay for any public performance of the work I was
2243 recording.  But it wasn't totally clear that I would have to pay for a
2244 <span class="quote">«<span class="quote">public performance</span>»</span> if I recorded the song in my own house (even
2245 today, you don't owe the Beatles anything if you sing their songs in
2246 the shower), or if I recorded the song from memory (copies in your
2247 brain are not&#8212;yet&#8212; regulated by copyright law). So if I
2248 simply sang the song into a recording device in the privacy of my own
2249 home, it wasn't clear that I owed the composer anything. And more
2250 importantly, it wasn't clear whether I owed the composer anything if I
2251 then made copies of those recordings.  Because of this gap in the law,
2252 then, I could effectively pirate someone else's song without paying
2253 its composer anything.
2254 </p><a class="indexterm" name="idp7538832"></a><p>
2255 The composers (and publishers) were none too happy about
2256
2257 this capacity to pirate. As South Dakota senator Alfred Kittredge
2258 put it,
2259 <a class="indexterm" name="idp7541248"></a>
2260 </p><div class="blockquote"><blockquote class="blockquote"><p>
2261 Imagine the injustice of the thing. A composer writes a song or an
2262 opera. A publisher buys at great expense the rights to the same and
2263 copyrights it. Along come the phonographic companies and companies who
2264 cut music rolls and deliberately steal the work of the brain of the
2265 composer and publisher without any regard for [their]
2266 rights.<a href="#ftn.idp7542992" class="footnote" name="idp7542992"><sup class="footnote">[54]</sup></a>
2267 </p></blockquote></div><a class="indexterm" name="idp7545536"></a><p>
2268 The innovators who developed the technology to record other
2269 people's works were <span class="quote">«<span class="quote">sponging upon the toil, the work, the talent, and
2270 genius of American composers,</span>»</span><a href="#ftn.idp7546992" class="footnote" name="idp7546992"><sup class="footnote">[55]</sup></a>
2271 and the <span class="quote">«<span class="quote">music publishing industry</span>»</span>
2272 was thereby <span class="quote">«<span class="quote">at the complete mercy of this one pirate.</span>»</span><a href="#ftn.idp7548560" class="footnote" name="idp7548560"><sup class="footnote">[56]</sup></a>
2273 As John Philip
2274 Sousa put it, in as direct a way as possible, <span class="quote">«<span class="quote">When they make money
2275 out of my pieces, I want a share of it.</span>»</span><a href="#ftn.idp7549904" class="footnote" name="idp7549904"><sup class="footnote">[57]</sup></a>
2276 </p><a class="indexterm" name="idp7550928"></a><a class="indexterm" name="idp7551680"></a><a class="indexterm" name="idp7552432"></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>
2277 These arguments have familiar echoes in the wars of our day. So, too,
2278 do the arguments on the other side. The innovators who developed the
2279 player piano argued that <span class="quote">«<span class="quote">it is perfectly demonstrable that the
2280 introduction of automatic music players has not deprived any composer
2281 of anything he had before their introduction.</span>»</span> Rather, the machines
2282 increased the sales of sheet music.<a href="#ftn.idp7560208" class="footnote" name="idp7560208"><sup class="footnote">[58]</sup></a> In any case, the innovators argued, the job of
2283 Congress was <span class="quote">«<span class="quote">to consider first the interest of [the public], whom
2284 they represent, and whose servants they are.</span>»</span> <span class="quote">«<span class="quote">All talk about
2285 `theft,'</span>»</span> the general counsel of the American Graphophone Company
2286 wrote, <span class="quote">«<span class="quote">is the merest claptrap, for there exists no property in ideas
2287 musical, literary or artistic, except as defined by
2288 statute.</span>»</span><a href="#ftn.idp7562592" class="footnote" name="idp7562592"><sup class="footnote">[59]</sup></a>
2289 </p><a class="indexterm" name="idp7563680"></a><p>
2290 The law soon resolved this battle in favor of the composer
2291 <span class="emphasis"><em>and</em></span> the recording artist. Congress amended the
2292 law to make sure that composers would be paid for the <span class="quote">«<span class="quote">mechanical
2293 reproductions</span>»</span> of their music. But rather than simply granting the
2294 composer complete control over the right to make mechanical
2295 reproductions, Congress gave recording artists a right to record the
2296 music, at a price set by Congress, once the composer allowed it to be
2297 recorded once. This is the part of
2298
2299
2300 copyright law that makes cover songs possible. Once a composer
2301 authorizes a recording of his song, others are free to record the same
2302 song, so long as they pay the original composer a fee set by the law.
2303 </p><a class="indexterm" name="idxcompulsorylicense"></a><a class="indexterm" name="idxstatutorylicenses"></a><p>
2304 American law ordinarily calls this a <span class="quote">«<span class="quote">compulsory license,</span>»</span> but I will
2305 refer to it as a <span class="quote">«<span class="quote">statutory license.</span>»</span> A statutory license is a license
2306 whose key terms are set by law. After Congress's amendment of the
2307 Copyright Act in 1909, record companies were free to distribute copies
2308 of recordings so long as they paid the composer (or copyright holder)
2309 the fee set by the statute.
2310 </p><a class="indexterm" name="idxgrishamjohn"></a><p>
2311 This is an exception within the law of copyright. When John Grisham
2312 writes a novel, a publisher is free to publish that novel only if
2313 Grisham gives the publisher permission. Grisham, in turn, is free to
2314 charge whatever he wants for that permission. The price to publish
2315 Grisham is thus set by Grisham, and copyright law ordinarily says you
2316 have no permission to use Grisham's work except with permission of
2317 Grisham.
2318 </p><a class="indexterm" name="idp7572512"></a><a class="indexterm" name="idp7573488"></a><p>
2319 But the law governing recordings gives recording artists less. And
2320 thus, in effect, the law <span class="emphasis"><em>subsidizes</em></span> the recording
2321 industry through a kind of piracy&#8212;by giving recording artists a
2322 weaker right than it otherwise gives creative authors. The Beatles
2323 have less control over their creative work than Grisham does. And the
2324 beneficiaries of this less control are the recording industry and the
2325 public. The recording industry gets something of value for less than
2326 it otherwise would pay; the public gets access to a much wider range
2327 of musical creativity. Indeed, Congress was quite explicit about its
2328 reasons for granting this right. Its fear was the monopoly power of
2329 rights holders, and that that power would stifle follow-on
2330 creativity.<a href="#ftn.idp7515792" class="footnote" name="idp7515792"><sup class="footnote">[60]</sup></a>
2331 </p><a class="indexterm" name="idp7577264"></a><a class="indexterm" name="idp7578240"></a><a class="indexterm" name="idp7579216"></a><p>
2332 While the recording industry has been quite coy about this recently,
2333 historically it has been quite a supporter of the statutory license for
2334 records. As a 1967 report from the House Committee on the Judiciary
2335 relates,
2336 </p><div class="blockquote"><blockquote class="blockquote"><p>
2337 the record producers argued vigorously that the compulsory
2338
2339 license system must be retained. They asserted that the record
2340 industry is a half-billion-dollar business of great economic
2341 importance in the United States and throughout the world; records
2342 today are the principal means of disseminating music, and this creates
2343 special problems, since performers need unhampered access to musical
2344 material on nondiscriminatory terms. Historically, the record
2345 producers pointed out, there were no recording rights before 1909 and
2346 the 1909 statute adopted the compulsory license as a deliberate
2347 anti-monopoly condition on the grant of these rights. They argue that
2348 the result has been an outpouring of recorded music, with the public
2349 being given lower prices, improved quality, and a greater
2350 choice.<a href="#ftn.idp7582416" class="footnote" name="idp7582416"><sup class="footnote">[61]</sup></a>
2351 </p></blockquote></div><a class="indexterm" name="idp7583680"></a><a class="indexterm" name="idp7584656"></a><a class="indexterm" name="idp7585632"></a><a class="indexterm" name="idp7586608"></a><p>
2352 By limiting the rights musicians have, by partially pirating their
2353 creative work, the record producers, and the public, benefit.
2354 </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>
2355 Radio was also born of piracy.
2356 </p><p>
2357 When a radio station plays a record on the air, that constitutes a
2358 <span class="quote">«<span class="quote">public performance</span>»</span> of the composer's work.<a href="#ftn.idp7593200" class="footnote" name="idp7593200"><sup class="footnote">[62]</sup></a>
2359 As I described above, the law gives the composer (or copyright holder)
2360 an exclusive right to public performances of his work. The radio
2361 station thus owes the composer money for that performance.
2362 </p><p>
2363 But when the radio station plays a record, it is not only performing a
2364 copy of the <span class="emphasis"><em>composer's</em></span> work. The radio station is
2365 also performing a copy of the <span class="emphasis"><em>recording artist's</em></span>
2366 work. It's one thing to have <span class="quote">«<span class="quote">Happy Birthday</span>»</span> sung on the radio by the
2367 local children's choir; it's quite another to have it sung by the
2368 Rolling Stones or Lyle Lovett. The recording artist is adding to the
2369 value of the composition performed on the radio station.  And if the
2370 law were perfectly consistent, the radio station would have to pay the
2371 recording artist for his work, just as it pays the composer of the
2372 music for his work.
2373 <a class="indexterm" name="idp7600624"></a>
2374
2375
2376 </p><p>
2377 But it doesn't. Under the law governing radio performances, the radio
2378 station does not have to pay the recording artist. The radio station
2379 need only pay the composer. The radio station thus gets a bit of
2380 something for nothing. It gets to perform the recording artist's work
2381 for free, even if it must pay the composer something for the privilege
2382 of playing the song.
2383 </p><a class="indexterm" name="idxmadonna"></a><p>
2384 This difference can be huge. Imagine you compose a piece of music.
2385 Imagine it is your first. You own the exclusive right to authorize
2386 public performances of that music. So if Madonna wants to sing your
2387 song in public, she has to get your permission.
2388 </p><p>
2389 Imagine she does sing your song, and imagine she likes it a lot. She
2390 then decides to make a recording of your song, and it becomes a top
2391 hit. Under our law, every time a radio station plays your song, you
2392 get some money. But Madonna gets nothing, save the indirect effect on
2393 the sale of her CDs. The public performance of her recording is not a
2394 <span class="quote">«<span class="quote">protected</span>»</span> right. The radio station thus gets to
2395 <span class="emphasis"><em>pirate</em></span> the value of Madonna's work without paying
2396 her anything.
2397 </p><a class="indexterm" name="idp7606016"></a><a class="indexterm" name="idp7606992"></a><p>
2398 No doubt, one might argue that, on balance, the recording artists
2399 benefit. On average, the promotion they get is worth more than the
2400 performance rights they give up. Maybe. But even if so, the law
2401 ordinarily gives the creator the right to make this choice. By making
2402 the choice for him or her, the law gives the radio station the right
2403 to take something for nothing.
2404 </p><a class="indexterm" name="idp7608736"></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>
2405 Cable TV was also born of a kind of piracy.
2406 </p><p>
2407 When cable entrepreneurs first started wiring communities with cable
2408 television in 1948, most refused to pay broadcasters for the content
2409 that they echoed to their customers. Even when the cable companies
2410 started selling access to television broadcasts, they refused to pay
2411
2412 for what they sold. Cable companies were thus Napsterizing
2413 broadcasters' content, but more egregiously than anything Napster ever
2414 did&#8212; Napster never charged for the content it enabled others to
2415 give away.
2416 </p><a class="indexterm" name="idp7613136"></a><a class="indexterm" name="idp7614256"></a><a class="indexterm" name="idp7615008"></a><p>
2417 Broadcasters and copyright owners were quick to attack this theft.
2418 Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
2419 <span class="quote">«<span class="quote">unfair and potentially destructive competition.</span>»</span><a href="#ftn.idp7616416" class="footnote" name="idp7616416"><sup class="footnote">[63]</sup></a>
2420 There may have been a <span class="quote">«<span class="quote">public interest</span>»</span> in spreading the reach of cable
2421 TV, but as Douglas Anello, general counsel to the National Association
2422 of Broadcasters, asked Senator Quentin Burdick during testimony, <span class="quote">«<span class="quote">Does public
2423 interest dictate that you use somebody else's property?</span>»</span><a href="#ftn.idp7619136" class="footnote" name="idp7619136"><sup class="footnote">[64]</sup></a>
2424 As another broadcaster put it,
2425 </p><div class="blockquote"><blockquote class="blockquote"><p>
2426 The extraordinary thing about the CATV business is that it is the
2427 only business I know of where the product that is being sold is not
2428 paid for.<a href="#ftn.idp7620848" class="footnote" name="idp7620848"><sup class="footnote">[65]</sup></a>
2429 </p></blockquote></div><p>
2430 Again, the demand of the copyright holders seemed reasonable enough:
2431 </p><div class="blockquote"><blockquote class="blockquote"><p>
2432 All we are asking for is a very simple thing, that people who now
2433 take our property for nothing pay for it. We are trying to stop
2434 piracy and I don't think there is any lesser word to describe it. I
2435 think there are harsher words which would fit it.<a href="#ftn.idp7623280" class="footnote" name="idp7623280"><sup class="footnote">[66]</sup></a>
2436 </p></blockquote></div><a class="indexterm" name="idp7624496"></a><p>
2437 These were <span class="quote">«<span class="quote">free-ride[rs],</span>»</span> Screen Actor's Guild president Charlton
2438 Heston said, who were <span class="quote">«<span class="quote">depriving actors of
2439 compensation.</span>»</span><a href="#ftn.idp7626224" class="footnote" name="idp7626224"><sup class="footnote">[67]</sup></a>
2440 </p><p>
2441 But again, there was another side to the debate. As Assistant Attorney
2442 General Edwin Zimmerman put it,
2443 </p><div class="blockquote"><blockquote class="blockquote"><p>
2444 Our point here is that unlike the problem of whether you have any
2445 copyright protection at all, the problem here is whether copyright
2446 holders who are already compensated, who already have a monopoly,
2447 should be permitted to extend that monopoly. &#8230; The
2448
2449
2450 question here is how much compensation they should have and
2451 how far back they should carry their right to compensation.<a href="#ftn.idp7629280" class="footnote" name="idp7629280"><sup class="footnote">[68]</sup></a>
2452 <a class="indexterm" name="idp7631472"></a>
2453 </p></blockquote></div><p>
2454 Copyright owners took the cable companies to court. Twice the Supreme
2455 Court held that the cable companies owed the copyright owners nothing.
2456 </p><p>
2457 It took Congress almost thirty years before it resolved the question
2458 of whether cable companies had to pay for the content they <span class="quote">«<span class="quote">pirated.</span>»</span>
2459 In the end, Congress resolved this question in the same way that it
2460 resolved the question about record players and player pianos. Yes,
2461 cable companies would have to pay for the content that they broadcast;
2462 but the price they would have to pay was not set by the copyright
2463 owner.  The price was set by law, so that the broadcasters couldn't
2464 exercise veto power over the emerging technologies of cable. Cable
2465 companies thus built their empire in part upon a <span class="quote">«<span class="quote">piracy</span>»</span> of the value
2466 created by broadcasters' content.
2467 </p><a class="indexterm" name="idp7634800"></a><a class="indexterm" name="idp7635776"></a><p>
2468 <span class="strong"><strong>These separate stories</strong></span> sing a
2469 common theme. If <span class="quote">«<span class="quote">piracy</span>»</span> means using value from someone
2470 else's creative property without permission from that creator&#8212;as
2471 it is increasingly described today<a href="#ftn.idp7630464" class="footnote" name="idp7630464"><sup class="footnote">[69]</sup></a>
2472 &#8212; then <span class="emphasis"><em>every</em></span> industry affected by copyright
2473 today is the product and beneficiary of a certain kind of
2474 piracy. Film, records, radio, cable TV. &#8230; The list is long and
2475 could well be expanded. Every generation welcomes the pirates from the
2476 last. Every generation&#8212;until now.
2477 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7512624" class="footnote"><p><a href="#idp7512624" class="para"><sup class="para">[51] </sup></a>
2478
2479 <a class="indexterm" name="idp7513264"></a>
2480 I am grateful to Peter DiMauro for pointing me to this extraordinary
2481 history. See also Siva Vaidhyanathan, <em class="citetitle">Copyrights and Copywrongs</em>, 87&#8211;93,
2482 which details Edison's <span class="quote">«<span class="quote">adventures</span>»</span> with copyright and patent.
2483 </p></div><div id="ftn.idp7520960" class="footnote"><p><a href="#idp7520960" class="para"><sup class="para">[52] </sup></a>
2484
2485 J. A. Aberdeen, <em class="citetitle">Hollywood Renegades: The Society of Independent Motion
2486 Picture Producers</em> (Cobblestone Entertainment, 2000) and expanded texts
2487 posted at <span class="quote">«<span class="quote">The Edison Movie Monopoly: The Motion Picture Patents
2488 Company vs. the Independent Outlaws,</span>»</span> available at
2489 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #11</a>. For a
2490 discussion of the economic motive behind both these limits and the
2491 limits imposed by Victor on phonographs, see Randal C. Picker, <span class="quote">«<span class="quote">From
2492 Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and
2493 the Propertization of Copyright</span>»</span> (September 2002), University of
2494 Chicago Law School, James M. Olin Program in Law and Economics,
2495 Working Paper No. 159.
2496 <a class="indexterm" name="idp7524000"></a>
2497 </p></div><div id="ftn.idp7526416" class="footnote"><p><a href="#idp7526416" class="para"><sup class="para">[53] </sup></a>
2498
2499 Marc Wanamaker, <span class="quote">«<span class="quote">The First Studios,</span>»</span> <em class="citetitle">The Silents Majority</em>, archived at
2500 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #12</a>.
2501 </p></div><div id="ftn.idp7542992" class="footnote"><p><a href="#idp7542992" class="para"><sup class="para">[54] </sup></a>
2502
2503 To Amend and Consolidate the Acts Respecting Copyright: Hearings on
2504 S. 6330 and H.R. 19853 Before the (Joint) Committees on Patents, 59th
2505 Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge,
2506 of South Dakota, chairman), reprinted in <em class="citetitle">Legislative History of the
2507 Copyright Act</em>, E. Fulton Brylawski and Abe Goldman, eds. (South
2508 Hackensack, N.J.: Rothman Reprints, 1976).
2509 <a class="indexterm" name="idp7544400"></a>
2510 </p></div><div id="ftn.idp7546992" class="footnote"><p><a href="#idp7546992" class="para"><sup class="para">[55] </sup></a>
2511
2512 To Amend and Consolidate the Acts Respecting Copyright, 223
2513 (statement of Nathan Burkan, attorney for the Music Publishers Association).
2514 </p></div><div id="ftn.idp7548560" class="footnote"><p><a href="#idp7548560" class="para"><sup class="para">[56] </sup></a>
2515
2516 To Amend and Consolidate the Acts Respecting Copyright, 226
2517 (statement of Nathan Burkan, attorney for the Music Publishers Association).
2518 </p></div><div id="ftn.idp7549904" class="footnote"><p><a href="#idp7549904" class="para"><sup class="para">[57] </sup></a>
2519
2520 To Amend and Consolidate the Acts Respecting Copyright, 23
2521 (statement of John Philip Sousa, composer).
2522 </p></div><div id="ftn.idp7560208" class="footnote"><p><a href="#idp7560208" class="para"><sup class="para">[58] </sup></a>
2523
2524
2525 To Amend and Consolidate the Acts Respecting Copyright, 283&#8211;84
2526 (statement of Albert Walker, representative of the Auto-Music
2527 Perforating Company of New York).
2528 </p></div><div id="ftn.idp7562592" class="footnote"><p><a href="#idp7562592" class="para"><sup class="para">[59] </sup></a>
2529
2530 To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared
2531 memorandum of Philip Mauro, general patent counsel of the American
2532 Graphophone Company Association).
2533 </p></div><div id="ftn.idp7515792" class="footnote"><p><a href="#idp7515792" class="para"><sup class="para">[60] </sup></a>
2534
2535
2536 Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and
2537 H.R. 11794 Before the (Joint) Committee on Patents, 60th Cong., 1st
2538 sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted
2539 in <em class="citetitle">Legislative History of the 1909 Copyright Act</em>, E. Fulton Brylawski and
2540 Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976).
2541 </p></div><div id="ftn.idp7582416" class="footnote"><p><a href="#idp7582416" class="para"><sup class="para">[61] </sup></a>
2542
2543 Copyright Law Revision: Report to Accompany H.R. 2512, House Committee
2544 on the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8
2545 March 1967). I am grateful to Glenn Brown for drawing my attention to
2546 this report.</p></div><div id="ftn.idp7593200" class="footnote"><p><a href="#idp7593200" class="para"><sup class="para">[62] </sup></a>
2547
2548 See 17 <em class="citetitle">United States Code</em>, sections 106 and 110. At the beginning,
2549 record companies printed <span class="quote">«<span class="quote">Not Licensed for Radio Broadcast</span>»</span> and other
2550 messages purporting to restrict the ability to play a record on a
2551 radio station.  Judge Learned Hand rejected the argument that a
2552 warning attached to a record might restrict the rights of the radio
2553 station. See <em class="citetitle">RCA Manufacturing Co</em>. v. <em class="citetitle">Whiteman</em>, 114 F. 2d 86 (2nd
2554 Cir. 1940). See also Randal C.  Picker, <span class="quote">«<span class="quote">From Edison to the Broadcast
2555 Flag: Mechanisms of Consent and Refusal and the Propertization of
2556 Copyright,</span>»</span> <em class="citetitle">University of Chicago Law Review</em> 70 (2003): 281.
2557 <a class="indexterm" name="idp7596672"></a>
2558 <a class="indexterm" name="idp7597424"></a>
2559 </p></div><div id="ftn.idp7616416" class="footnote"><p><a href="#idp7616416" class="para"><sup class="para">[63] </sup></a>
2560
2561 Copyright Law Revision&#8212;CATV: Hearing on S. 1006 Before the
2562 Subcommittee on Patents, Trademarks, and Copyrights of the Senate
2563 Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966)
2564 (statement of Rosel H. Hyde, chairman of the Federal Communications
2565 Commission).
2566 <a class="indexterm" name="idp7613280"></a>
2567 </p></div><div id="ftn.idp7619136" class="footnote"><p><a href="#idp7619136" class="para"><sup class="para">[64] </sup></a>
2568
2569 Copyright Law Revision&#8212;CATV, 116 (statement of Douglas A. Anello,
2570 general counsel of the National Association of Broadcasters).
2571 </p></div><div id="ftn.idp7620848" class="footnote"><p><a href="#idp7620848" class="para"><sup class="para">[65] </sup></a>
2572
2573 Copyright Law Revision&#8212;CATV, 126 (statement of Ernest W. Jennes,
2574 general counsel of the Association of Maximum Service Telecasters, Inc.).
2575 </p></div><div id="ftn.idp7623280" class="footnote"><p><a href="#idp7623280" class="para"><sup class="para">[66] </sup></a>
2576
2577 Copyright Law Revision&#8212;CATV, 169 (joint statement of Arthur B.
2578 Krim, president of United Artists Corp., and John Sinn, president of
2579 United Artists Television, Inc.).
2580 </p></div><div id="ftn.idp7626224" class="footnote"><p><a href="#idp7626224" class="para"><sup class="para">[67] </sup></a>
2581
2582 Copyright Law Revision&#8212;CATV, 209 (statement of Charlton Heston,
2583 president of the Screen Actors Guild).
2584 <a class="indexterm" name="idp7626992"></a>
2585 </p></div><div id="ftn.idp7629280" class="footnote"><p><a href="#idp7629280" class="para"><sup class="para">[68] </sup></a>
2586
2587 Copyright Law Revision&#8212;CATV, 216 (statement of Edwin M.
2588 Zimmerman, acting assistant attorney general).
2589 <a class="indexterm" name="idp7630592"></a>
2590 </p></div><div id="ftn.idp7630464" class="footnote"><p><a href="#idp7630464" class="para"><sup class="para">[69] </sup></a>
2591
2592 See, for example, National Music Publisher's Association, <em class="citetitle">The Engine
2593 of Free Expression: Copyright on the Internet&#8212;The Myth of Free
2594 Information</em>, available at
2595 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #13</a>. <span class="quote">«<span class="quote">The
2596 threat of piracy&#8212;the use of someone else's creative work without
2597 permission or compensation&#8212;has grown with the Internet.</span>»</span>
2598 </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>
2599 <span class="strong"><strong>There is piracy</strong></span> of copyrighted
2600 material. Lots of it. This piracy comes in many forms. The most
2601 significant is commercial piracy, the unauthorized taking of other
2602 people's content within a commercial context. Despite the many
2603 justifications that are offered in its defense, this taking is
2604 wrong. No one should condone it, and the law should stop it.
2605 </p><p>
2606 But as well as copy-shop piracy, there is another kind of <span class="quote">«<span class="quote">taking</span>»</span>
2607 that is more directly related to the Internet. That taking, too, seems
2608 wrong to many, and it is wrong much of the time. Before we paint this
2609 taking <span class="quote">«<span class="quote">piracy,</span>»</span> however, we should understand its nature a bit more.
2610 For the harm of this taking is significantly more ambiguous than
2611 outright copying, and the law should account for that ambiguity, as it
2612 has so often done in the past.
2613
2614 </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="idp7647456"></a><a class="indexterm" name="idxcdsforeign"></a><p>
2615 All across the world, but especially in Asia and Eastern Europe, there
2616 are businesses that do nothing but take others people's copyrighted
2617 content, copy it, and sell it&#8212;all without the permission of a copyright
2618 owner. The recording industry estimates that it loses about $4.6 billion
2619 every year to physical piracy<a href="#ftn.idp7629408" class="footnote" name="idp7629408"><sup class="footnote">[70]</sup></a>
2620 (that works out to one in three CDs sold worldwide). The MPAA
2621 estimates that it loses $3 billion annually worldwide to piracy.
2622 </p><p>
2623 This is piracy plain and simple. Nothing in the argument of this
2624 book, nor in the argument that most people make when talking about
2625 the subject of this book, should draw into doubt this simple point:
2626 This piracy is wrong.
2627 </p><p>
2628 Which is not to say that excuses and justifications couldn't be made
2629 for it. We could, for example, remind ourselves that for the first one
2630 hundred years of the American Republic, America did not honor foreign
2631 copyrights. We were born, in this sense, a pirate nation. It might
2632 therefore seem hypocritical for us to insist so strongly that other
2633 developing nations treat as wrong what we, for the first hundred years
2634 of our existence, treated as right.
2635 </p><p>
2636 That excuse isn't terribly strong. Technically, our law did not ban
2637 the taking of foreign works. It explicitly limited itself to American
2638 works. Thus the American publishers who published foreign works
2639 without the permission of foreign authors were not violating any rule.
2640 The copy shops in Asia, by contrast, are violating Asian law. Asian
2641 law does protect foreign copyrights, and the actions of the copy shops
2642 violate that law. So the wrong of piracy that they engage in is not
2643 just a moral wrong, but a legal wrong, and not just an internationally
2644 legal wrong, but a locally legal wrong as well.
2645 </p><p>
2646 True, these local rules have, in effect, been imposed upon these
2647 countries. No country can be part of the world economy and choose
2648
2649 not to protect copyright internationally. We may have been born a
2650 pirate nation, but we will not allow any other nation to have a
2651 similar childhood.
2652 </p><p>
2653 If a country is to be treated as a sovereign, however, then its laws are
2654 its laws regardless of their source. The international law under which
2655 these nations live gives them some opportunities to escape the burden
2656 of intellectual property law.<a href="#ftn.idp7657184" class="footnote" name="idp7657184"><sup class="footnote">[71]</sup></a> In my view, more developing nations should take
2657 advantage of that opportunity, but when they don't, then their laws
2658 should be respected. And under the laws of these nations, this piracy
2659 is wrong.
2660 </p><a class="indexterm" name="idp7661104"></a><p>
2661 Alternatively, we could try to excuse this piracy by noting that in
2662 any case, it does no harm to the industry. The Chinese who get access
2663 to American CDs at 50 cents a copy are not people who would have
2664 bought those American CDs at $15 a copy. So no one really has any
2665 less money than they otherwise would have had.<a href="#ftn.idp7662448" class="footnote" name="idp7662448"><sup class="footnote">[72]</sup></a>
2666 </p><p>
2667 This is often true (though I have friends who have purchased many
2668 thousands of pirated DVDs who certainly have enough money to pay
2669 for the content they have taken), and it does mitigate to some degree
2670 the harm caused by such taking. Extremists in this debate love to say,
2671 <span class="quote">«<span class="quote">You wouldn't go into Barnes &amp; Noble and take a book off of the shelf
2672 without paying; why should it be any different with on-line music?</span>»</span>
2673 The difference is, of course, that when you take a book from Barnes &amp;
2674 Noble, it has one less book to sell. By contrast, when you take an MP3
2675 from a computer network, there is not one less CD that can be sold.
2676 The physics of piracy of the intangible are different from the physics of
2677 piracy of the tangible.
2678 </p><a class="indexterm" name="idp7667440"></a><p>
2679 This argument is still very weak. However, although copyright is a
2680 property right of a very special sort, it <span class="emphasis"><em>is</em></span> a
2681 property right. Like all property rights, the copyright gives the
2682 owner the right to decide the terms under which content is shared. If
2683 the copyright owner doesn't want to sell, she doesn't have to. There
2684 are exceptions: important statutory licenses that apply to copyrighted
2685 content regardless of the wish of the copyright owner. Those licenses
2686 give people the right to <span class="quote">«<span class="quote">take</span>»</span> copyrighted content whether or not the
2687 copyright owner wants to sell. But
2688
2689
2690 where the law does not give people the right to take content, it is
2691 wrong to take that content even if the wrong does no harm. If we have
2692 a property system, and that system is properly balanced to the
2693 technology of a time, then it is wrong to take property without the
2694 permission of a property owner. That is exactly what <span class="quote">«<span class="quote">property</span>»</span> means.
2695 </p><a class="indexterm" name="idp7671152"></a><a class="indexterm" name="idp7671904"></a><a class="indexterm" name="idp7672912"></a><a class="indexterm" name="idp7673664"></a><a class="indexterm" name="idp7674416"></a><a class="indexterm" name="idp7675168"></a><a class="indexterm" name="idp7676176"></a><a class="indexterm" name="idp7676928"></a><a class="indexterm" name="idp7677936"></a><p>
2696 Finally, we could try to excuse this piracy with the argument that the
2697 piracy actually helps the copyright owner. When the Chinese <span class="quote">«<span class="quote">steal</span>»</span>
2698 Windows, that makes the Chinese dependent on Microsoft.  Microsoft
2699 loses the value of the software that was taken. But it gains users who
2700 are used to life in the Microsoft world. Over time, as the nation
2701 grows more wealthy, more and more people will buy software rather than
2702 steal it. And hence over time, because that buying will benefit
2703 Microsoft, Microsoft benefits from the piracy. If instead of pirating
2704 Microsoft Windows, the Chinese used the free GNU/Linux operating
2705 system, then these Chinese users would not eventually be buying
2706 Microsoft.  Without piracy, then, Microsoft would lose.
2707 </p><a class="indexterm" name="idp7680464"></a><p>
2708 This argument, too, is somewhat true. The addiction strategy is a good
2709 one. Many businesses practice it. Some thrive because of it. Law
2710 students, for example, are given free access to the two largest legal
2711 databases. The companies marketing both hope the students will become
2712 so used to their service that they will want to use it and not the
2713 other when they become lawyers (and must pay high subscription fees).
2714 </p><a class="indexterm" name="idp7682288"></a><a class="indexterm" name="idp7683040"></a><a class="indexterm" name="idp7683792"></a><a class="indexterm" name="idp7684544"></a><p>
2715 Still, the argument is not terribly persuasive. We don't give the
2716 alcoholic a defense when he steals his first beer, merely because that
2717 will make it more likely that he will buy the next three. Instead, we
2718 ordinarily allow businesses to decide for themselves when it is best
2719 to give their product away. If Microsoft fears the competition of
2720 GNU/Linux, then Microsoft can give its product away, as it did, for
2721 example, with Internet Explorer to fight Netscape. A property right
2722 means giving the property owner the right to say who gets access to
2723 what&#8212;at least ordinarily. And if the law properly balances the
2724 rights of the copyright owner with the rights of access, then
2725 violating the law is still wrong.
2726 </p><p>
2727
2728 Thus, while I understand the pull of these justifications for piracy,
2729 and I certainly see the motivation, in my view, in the end, these efforts
2730 at justifying commercial piracy simply don't cut it. This kind of piracy
2731 is rampant and just plain wrong. It doesn't transform the content it
2732 steals; it doesn't transform the market it competes in. It merely gives
2733 someone access to something that the law says he should not have.
2734 Nothing has changed to draw that law into doubt. This form of piracy
2735 is flat out wrong.
2736 </p><p>
2737 But as the examples from the four chapters that introduced this part
2738 suggest, even if some piracy is plainly wrong, not all <span class="quote">«<span class="quote">piracy</span>»</span> is. Or
2739 at least, not all <span class="quote">«<span class="quote">piracy</span>»</span> is wrong if that term is understood in the
2740 way it is increasingly used today. Many kinds of <span class="quote">«<span class="quote">piracy</span>»</span> are useful
2741 and productive, to produce either new content or new ways of doing
2742 business.  Neither our tradition nor any tradition has ever banned all
2743 <span class="quote">«<span class="quote">piracy</span>»</span> in that sense of the term.
2744 </p><p>
2745 This doesn't mean that there are no questions raised by the latest
2746 piracy concern, peer-to-peer file sharing. But it does mean that we
2747 need to understand the harm in peer-to-peer sharing a bit more before
2748 we condemn it to the gallows with the charge of piracy.
2749 </p><p>
2750 For (1) like the original Hollywood, p2p sharing escapes an overly
2751 controlling industry; and (2) like the original recording industry, it
2752 simply exploits a new way to distribute content; but (3) unlike cable
2753 TV, no one is selling the content that is shared on p2p services.
2754 </p><p>
2755 These differences distinguish p2p sharing from true piracy. They
2756 should push us to find a way to protect artists while enabling this
2757 sharing to survive.
2758 </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>
2759 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]
2760 the author of [his] profit.</span>»</span><a href="#ftn.idp7693760" class="footnote" name="idp7693760"><sup class="footnote">[73]</sup></a>
2761 This means we must determine whether
2762 and how much p2p sharing harms before we know how strongly the
2763
2764 law should seek to either prevent it or find an alternative to assure the
2765 author of his profit.
2766 </p><p>
2767 <a class="indexterm" name="idp7696160"></a>
2768 <a class="indexterm" name="idp7696912"></a>
2769 <a class="indexterm" name="idxnapster"></a>
2770 Peer-to-peer sharing was made famous by Napster. But the inventors of
2771 the Napster technology had not made any major technological
2772 innovations.  Like every great advance in innovation on the Internet
2773 (and, arguably, off the Internet as well<a href="#ftn.idp7699152" class="footnote" name="idp7699152"><sup class="footnote">[74]</sup></a>), Shawn Fanning and crew had simply
2774 put together components that had been developed independently.
2775 </p><p>
2776 <a class="indexterm" name="idp7703216"></a>
2777 <a class="indexterm" name="idp7703968"></a>
2778 <a class="indexterm" name="idp7704976"></a>
2779 The result was spontaneous combustion. Launched in July 1999,
2780 Napster amassed over 10 million users within nine months. After
2781 eighteen months, there were close to 80 million registered users of the
2782 system.<a href="#ftn.idp7706208" class="footnote" name="idp7706208"><sup class="footnote">[75]</sup></a>
2783 Courts quickly shut Napster down, but other services emerged
2784 to take its place. (Kazaa is currently the most popular p2p service. It
2785 boasts over 100 million members.) These services' systems are different
2786 architecturally, though not very different in function: Each enables
2787 users to make content available to any number of other users. With a
2788 p2p system, you can share your favorite songs with your best friend&#8212;
2789 or your 20,000 best friends.
2790 </p><a class="indexterm" name="idp7710816"></a><p>
2791 According to a number of estimates, a huge proportion of Americans
2792 have tasted file-sharing technology. A study by Ipsos-Insight in
2793 September 2002 estimated that 60 million Americans had downloaded
2794 music&#8212;28 percent of Americans older than 12.<a href="#ftn.idp7711248" class="footnote" name="idp7711248"><sup class="footnote">[76]</sup></a>
2795 A survey by the NPD group quoted in <em class="citetitle">The New York Times</em>
2796 estimated that 43 million citizens used file-sharing networks to
2797 exchange content in May 2003.<a href="#ftn.idp7714928" class="footnote" name="idp7714928"><sup class="footnote">[77]</sup></a>
2798 The vast majority of these are not kids. Whatever the actual figure, a
2799 massive quantity of content is being <span class="quote">«<span class="quote">taken</span>»</span> on these networks. The
2800 ease and inexpensiveness of file-sharing networks have inspired
2801 millions to enjoy music in a way that they hadn't before.
2802 </p><p>
2803 Some of this enjoying involves copyright infringement. Some of it does
2804 not. And even among the part that is technically copyright
2805 infringement, calculating the actual harm to copyright owners is more
2806 complicated than one might think. So consider&#8212;a bit more
2807 carefully than the polarized voices around this debate usually
2808 do&#8212;the kinds of sharing that file sharing enables, and the kinds
2809 of harm it entails.
2810 </p><p>
2811
2812 File sharers share different kinds of content. We can divide these
2813 different kinds into four types.
2814 </p><div class="orderedlist"><ol class="orderedlist" type="A"><li class="listitem"><a class="indexterm" name="idp7720064"></a><p>
2815
2816 There are some who use sharing networks as substitutes for purchasing
2817 content. Thus, when a new Madonna CD is released, rather than buying
2818 the CD, these users simply take it. We might quibble about whether
2819 everyone who takes it would actually have bought it if sharing didn't
2820 make it available for free. Most probably wouldn't have, but clearly
2821 there are some who would.  The latter are the target of category A:
2822 users who download instead of purchasing.
2823 </p></li><li class="listitem"><p>
2824
2825 There are some who use sharing networks to sample music before
2826 purchasing it. Thus, a friend sends another friend an MP3 of an artist
2827 he's not heard of. The other friend then buys CDs by that artist. This
2828 is a kind of targeted advertising, quite likely to succeed.  If the
2829 friend recommending the album gains nothing from a bad recommendation,
2830 then one could expect that the recommendations will actually be quite
2831 good. The net effect of this sharing could increase the quantity of
2832 music purchased.
2833 </p></li><li class="listitem"><p>
2834
2835 There are many who use sharing networks to get access to copyrighted
2836 content that is no longer sold or that they would not have purchased
2837 because the transaction costs off the Net are too high. This use of
2838 sharing networks is among the most rewarding for many. Songs that were
2839 part of your childhood but have long vanished from the marketplace
2840 magically appear again on the network. (One friend told me that when
2841 she discovered Napster, she spent a solid weekend <span class="quote">«<span class="quote">recalling</span>»</span> old
2842 songs. She was astonished at the range and mix of content that was
2843 available.)  For content not sold, this is still technically a
2844 violation of copyright, though because the copyright owner is not
2845 selling the content anymore, the economic harm is zero&#8212;the same
2846 harm that occurs when I sell my collection of 1960s 45-rpm records to
2847 a local collector.
2848 </p></li><li class="listitem"><p>
2849
2850
2851 Finally, there are many who use sharing networks to get access
2852 to content that is not copyrighted or that the copyright owner
2853 wants to give away.
2854 </p></li></ol></div><p>
2855 How do these different types of sharing balance out?
2856 </p><p>
2857 Let's start with some simple but important points. From the
2858 perspective of the law, only type D sharing is clearly legal. From the
2859 perspective of economics, only type A sharing is clearly
2860 harmful.<a href="#ftn.idp7727392" class="footnote" name="idp7727392"><sup class="footnote">[78]</sup></a>
2861 Type B sharing is illegal but plainly beneficial. Type C sharing is
2862 illegal, yet good for society (since more exposure to music is good)
2863 and harmless to the artist (since the work is not otherwise
2864 available). So how sharing matters on balance is a hard question to
2865 answer&#8212;and certainly much more difficult than the current
2866 rhetoric around the issue suggests.
2867 </p><p>
2868 Whether on balance sharing is harmful depends importantly on how
2869 harmful type A sharing is. Just as Edison complained about Hollywood,
2870 composers complained about piano rolls, recording artists complained
2871 about radio, and broadcasters complained about cable TV, the music
2872 industry complains that type A sharing is a kind of <span class="quote">«<span class="quote">theft</span>»</span> that is
2873 <span class="quote">«<span class="quote">devastating</span>»</span> the industry.
2874 </p><a class="indexterm" name="idxcassette"></a><p>
2875 While the numbers do suggest that sharing is harmful, how
2876 harmful is harder to reckon. It has long been the recording industry's
2877 practice to blame technology for any drop in sales. The history of
2878 cassette recording is a good example. As a study by Cap Gemini Ernst
2879 &amp; Young put it, <span class="quote">«<span class="quote">Rather than exploiting this new, popular
2880 technology, the labels fought it.</span>»</span><a href="#ftn.idp7733872" class="footnote" name="idp7733872"><sup class="footnote">[79]</sup></a>
2881 The labels claimed that every album taped was an album unsold, and
2882 when record sales fell by 11.4 percent in 1981, the industry claimed
2883 that its point was proved. Technology was the problem, and banning or
2884 regulating technology was the answer.
2885 </p><a class="indexterm" name="idp7737792"></a><p>
2886 Yet soon thereafter, and before Congress was given an opportunity
2887 to enact regulation, MTV was launched, and the industry had a record
2888 turnaround. <span class="quote">«<span class="quote">In the end,</span>»</span> Cap Gemini concludes, <span class="quote">«<span class="quote">the `crisis' &#8230; was
2889 not the fault of the 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.idp7663824" class="footnote" name="idp7663824"><sup class="footnote">[80]</sup></a>
2893 </p><a class="indexterm" name="idp7741360"></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.idp7747696" class="footnote" name="idp7747696"><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.idp7752224" class="footnote" name="idp7752224"><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.idp7756240" class="footnote" name="idp7756240"><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="idp7760656"></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.idp7761776" class="footnote" name="idp7761776"><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="idp7765264"></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.idp7767008" class="footnote" name="idp7767008"><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="idp7772192"></a><a class="indexterm" name="idp7773200"></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="idp7779584"></a><a class="indexterm" name="idp7780336"></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="idp7783424"></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="idp7786352"></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><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.idp7791760" class="footnote" name="idp7791760"><sup class="footnote">[86]</sup></a>
3059 </p><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><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="idp7795904"></a><a class="indexterm" name="idp7796912"></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="idp7803616"></a><a class="indexterm" name="idp7804624"></a><a class="indexterm" name="idp7805632"></a><a class="indexterm" name="idp7806640"></a><a class="indexterm" name="idp7807648"></a><a class="indexterm" name="idp7808400"></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="idp7812880"></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="idp7815872"></a><a class="indexterm" name="idp7816736"></a><a class="indexterm" name="idp7817712"></a><a class="indexterm" name="idxbetamax"></a><a class="indexterm" name="idxcassettevcrs1"></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="idp7822944"></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="idp7827264"></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, <span class="quote">«<span class="quote">When there are
3141 20, 30, 40 million of these VCRs in the land, we will be invaded by
3142 millions of `tapeworms,' eating away at the very heart and essence of
3143 the most precious asset the copyright owner has, his
3144 copyright.</span>»</span><a href="#ftn.idp7829520" class="footnote" name="idp7829520"><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.idp7831552" class="footnote" name="idp7831552"><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.idp7832528" class="footnote" name="idp7832528"><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.idp7835456" class="footnote" name="idp7835456"><sup class="footnote">[90]</sup></a>
3160 </p><a class="indexterm" name="idp7836448"></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.idp7838560" class="footnote" name="idp7838560"><sup class="footnote">[91]</sup></a>
3172 <a class="indexterm" name="idp7841040"></a>
3173 </p><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.idp7843712" class="footnote" name="idp7843712"><sup class="footnote">[92]</sup></a>
3190 </p></blockquote></div><a class="indexterm" name="idp7845504"></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="idp7859680"></a><p>
3197 In each case throughout our history, a new technology changed the
3198 way content was distributed.<a href="#ftn.idp7861024" class="footnote" name="idp7861024"><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="idp7868960"></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="idp7870704"></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.idp7872496" class="footnote" name="idp7872496"><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.idp7878880" class="footnote" name="idp7878880"><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 `rebalance' our property rights? Do you have to wait before calling
3266 the police when your car has been stolen? And why should Congress
3267 deliberate at all about the merits of this theft? Do we ask whether
3268 the car thief had a good use for the car before we arrest him?</span>»</span>
3269 </p><p>
3270 <span class="quote">«<span class="quote">It is <span class="emphasis"><em>our property</em></span>,</span>»</span> the warriors
3271 insist. <span class="quote">«<span class="quote">And it should be protected just as any other property
3272 is protected.</span>»</span>
3273 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7629408" class="footnote"><p><a href="#idp7629408" class="para"><sup class="para">[70] </sup></a>
3274
3275 See IFPI (International Federation of the Phonographic Industry), <em class="citetitle">The
3276 Recording Industry Commercial Piracy Report 2003</em>, July 2003, available
3277 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #14</a>. See
3278 also Ben Hunt, <span class="quote">«<span class="quote">Companies Warned on Music Piracy Risk,</span>»</span> <em class="citetitle">Financial
3279 Times</em>, 14 February 2003, 11.
3280 </p></div><div id="ftn.idp7657184" class="footnote"><p><a href="#idp7657184" class="para"><sup class="para">[71] </sup></a>
3281
3282 See Peter Drahos with John Braithwaite, Information Feudalism:
3283 <em class="citetitle">Who Owns the Knowledge Economy?</em> (New York: The
3284 New Press, 2003), 10&#8211;13, 209.  The Trade-Related Aspects of
3285 Intellectual Property Rights (TRIPS) agreement obligates member
3286 nations to create administrative and enforcement mechanisms for
3287 intellectual property rights, a costly proposition for developing
3288 countries. Additionally, patent rights may lead to higher prices for
3289 staple industries such as agriculture. Critics of TRIPS question the
3290 disparity between burdens imposed upon developing countries and
3291 benefits conferred to industrialized nations. TRIPS does permit
3292 governments to use patents for public, noncommercial uses without
3293 first obtaining the patent holder's permission. Developing nations may
3294 be able to use this to gain the benefits of foreign patents at lower
3295 prices. This is a promising strategy for developing nations within the
3296 TRIPS framework.
3297 <a class="indexterm" name="idp7560928"></a>
3298 <a class="indexterm" name="idp7659888"></a>
3299 </p></div><div id="ftn.idp7662448" class="footnote"><p><a href="#idp7662448" class="para"><sup class="para">[72] </sup></a>
3300
3301 For an analysis of the economic impact of copying technology, see Stan
3302 Liebowitz, <em class="citetitle">Rethinking the Network Economy</em> (New York: Amacom, 2002),
3303 144&#8211;90. <span class="quote">«<span class="quote">In some instances &#8230; the impact of piracy on the
3304 copyright holder's ability to appropriate the value of the work will
3305 be negligible. One obvious instance is the case where the individual
3306 engaging in pirating would not have purchased an original even if
3307 pirating were not an option.</span>»</span> Ibid., 149.
3308 <a class="indexterm" name="idp7664256"></a>
3309 </p></div><div id="ftn.idp7693760" class="footnote"><p><a href="#idp7693760" class="para"><sup class="para">[73] </sup></a>
3310
3311 <em class="citetitle">Bach</em> v. <em class="citetitle">Longman</em>, 98 Eng. Rep. 1274 (1777).
3312 </p></div><div id="ftn.idp7699152" class="footnote"><p><a href="#idp7699152" class="para"><sup class="para">[74] </sup></a>
3313
3314 <a class="indexterm" name="idp7699792"></a>
3315 See Clayton M. Christensen, <em class="citetitle">The Innovator's Dilemma: The Revolutionary
3316 National Bestseller That Changed the Way We Do Business</em> (New York:
3317 HarperBusiness, 2000). Professor Christensen examines why companies
3318 that give rise to and dominate a product area are frequently unable to
3319 come up with the most creative, paradigm-shifting uses for their own
3320 products.  This job usually falls to outside innovators, who
3321 reassemble existing technology in inventive ways. For a discussion of
3322 Christensen's ideas, see Lawrence Lessig, <em class="citetitle">Future</em>, 89&#8211;92, 139.
3323
3324 <a class="indexterm" name="idp7663568"></a>
3325 </p></div><div id="ftn.idp7706208" class="footnote"><p><a href="#idp7706208" class="para"><sup class="para">[75] </sup></a>
3326
3327 See Carolyn Lochhead, <span class="quote">«<span class="quote">Silicon Valley Dream, Hollywood Nightmare,</span>»</span> <em class="citetitle">San
3328 Francisco Chronicle</em>, 24 September 2002, A1; <span class="quote">«<span class="quote">Rock 'n' Roll Suicide,</span>»</span>
3329 <em class="citetitle">New Scientist</em>, 6 July 2002, 42; Benny Evangelista, <span class="quote">«<span class="quote">Napster Names CEO,
3330 Secures New Financing,</span>»</span> <em class="citetitle">San Francisco Chronicle</em>, 23 May 2003, C1;
3331 <span class="quote">«<span class="quote">Napster's Wake-Up Call,</span>»</span> <em class="citetitle">Economist</em>, 24 June 2000, 23; John Naughton,
3332 <span class="quote">«<span class="quote">Hollywood at War with the Internet</span>»</span> (London) <em class="citetitle">Times</em>, 26 July 2002, 18.
3333 </p></div><div id="ftn.idp7711248" class="footnote"><p><a href="#idp7711248" class="para"><sup class="para">[76] </sup></a>
3334
3335
3336 See Ipsos-Insight, <em class="citetitle">TEMPO: Keeping Pace with Online Music Distribution</em>
3337 (September 2002), reporting that 28 percent of Americans aged twelve
3338 and older have downloaded music off of the Internet and 30 percent have
3339 listened to digital music files stored on their computers.
3340 </p></div><div id="ftn.idp7714928" class="footnote"><p><a href="#idp7714928" class="para"><sup class="para">[77] </sup></a>
3341
3342 Amy Harmon, <span class="quote">«<span class="quote">Industry Offers a Carrot in Online Music Fight,</span>»</span> <em class="citetitle">New
3343 York Times</em>, 6 June 2003, A1.
3344 </p></div><div id="ftn.idp7727392" class="footnote"><p><a href="#idp7727392" class="para"><sup class="para">[78] </sup></a>
3345
3346 See Liebowitz, <em class="citetitle">Rethinking the Network Economy</em>, 148&#8211;49.
3347 <a class="indexterm" name="idp7701840"></a>
3348 </p></div><div id="ftn.idp7733872" class="footnote"><p><a href="#idp7733872" class="para"><sup class="para">[79] </sup></a>
3349
3350 <a class="indexterm" name="idp7734512"></a>
3351 See Cap Gemini Ernst &amp; Young, <em class="citetitle">Technology Evolution and the
3352 Music Industry's Business Model Crisis</em> (2003), 3. This report
3353 describes the music industry's effort to stigmatize the budding
3354 practice of cassette taping in the 1970s, including an advertising
3355 campaign featuring a cassette-shape skull and the caption <span class="quote">«<span class="quote">Home taping
3356 is killing music.</span>»</span>  At the time digital audio tape became a threat,
3357 the Office of Technical Assessment conducted a survey of consumer
3358 behavior. In 1988, 40 percent of consumers older than ten had taped
3359 music to a cassette format. U.S.  Congress, Office of Technology
3360 Assessment, <em class="citetitle">Copyright and Home Copying: Technology Challenges the Law</em>,
3361 OTA-CIT-422 (Washington, D.C.: U.S.  Government Printing Office,
3362 October 1989), 145&#8211;56.  </p></div><div id="ftn.idp7663824" class="footnote"><p><a href="#idp7663824" class="para"><sup class="para">[80] </sup></a>
3363
3364 U.S. Congress, <em class="citetitle">Copyright and Home Copying</em>, 4.
3365 </p></div><div id="ftn.idp7747696" class="footnote"><p><a href="#idp7747696" class="para"><sup class="para">[81] </sup></a>
3366
3367 See Recording Industry Association of America, <em class="citetitle">2002 Yearend Statistics</em>,
3368 available at
3369 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #15</a>. A later
3370 report indicates even greater losses. See Recording Industry
3371 Association of America, <em class="citetitle">Some Facts About Music Piracy</em>, 25 June 2003,
3372 available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
3373 #16</a>: <span class="quote">«<span class="quote">In the past four years, unit shipments of recorded music
3374 have fallen by 26 percent from 1.16 billion units in to 860 million
3375 units in 2002 in the United States (based on units shipped).  In terms
3376 of sales, revenues are down 14 percent, from $14.6 billion in to $12.6
3377 billion last year (based on U.S. dollar value of shipments). The music
3378 industry worldwide has gone from a $39 billion industry in 2000 down
3379 to a $32 billion industry in 2002 (based on U.S. dollar value of
3380 shipments).</span>»</span>
3381 </p></div><div id="ftn.idp7752224" class="footnote"><p><a href="#idp7752224" class="para"><sup class="para">[82] </sup></a>
3382 Jane Black, <span class="quote">«<span class="quote">Big Music's Broken Record,</span>»</span> BusinessWeek online, 13
3383 February 2003, available at
3384 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #17</a>.
3385 <a class="indexterm" name="idp7754000"></a>
3386 </p></div><div id="ftn.idp7756240" class="footnote"><p><a href="#idp7756240" class="para"><sup class="para">[83] </sup></a>
3387
3388 Ibid.
3389 </p></div><div id="ftn.idp7761776" class="footnote"><p><a href="#idp7761776" class="para"><sup class="para">[84] </sup></a>
3390
3391 By one estimate, 75 percent of the music released by the major labels
3392 is no longer in print. See Online Entertainment and Copyright
3393 Law&#8212;Coming Soon to a Digital Device Near You: Hearing Before the
3394 Senate Committee on the Judiciary, 107th Cong., 1st sess. (3 April
3395 2001) (prepared statement of the Future of Music Coalition), available
3396 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #18</a>.
3397 </p></div><div id="ftn.idp7767008" class="footnote"><p><a href="#idp7767008" class="para"><sup class="para">[85] </sup></a>
3398
3399 <a class="indexterm" name="idp7767648"></a>
3400 While there are not good estimates of the number of used record stores
3401 in existence, in 2002, there were 7,198 used book dealers in the
3402 United States, an increase of 20 percent since 1993. See Book Hunter
3403 Press, <em class="citetitle">The Quiet Revolution: The Expansion of the Used Book
3404 Market</em> (2002), available at
3405 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #19</a>. Used
3406 records accounted for $260 million in sales in 2002. See National
3407 Association of Recording Merchandisers, <span class="quote">«<span class="quote">2002 Annual Survey
3408 Results,</span>»</span> available at
3409 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #20</a>.
3410 </p></div><div id="ftn.idp7791760" class="footnote"><p><a href="#idp7791760" class="para"><sup class="para">[86] </sup></a>
3411
3412 See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34-
3413 35 (N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183
3414 MHP, available at
3415
3416 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #21</a>. For an
3417 account of the litigation and its toll on Napster, see Joseph Menn,
3418 <em class="citetitle">All the Rave: The Rise and Fall of Shawn Fanning's Napster</em> (New
3419 York: Crown Business, 2003), 269&#8211;82.
3420 </p></div><div id="ftn.idp7829520" class="footnote"><p><a href="#idp7829520" class="para"><sup class="para">[87] </sup></a>
3421
3422 Copyright Infringements (Audio and Video Recorders): Hearing on
3423 S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st
3424 and 2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion
3425 Picture Association of America, Inc.).
3426 </p></div><div id="ftn.idp7831552" class="footnote"><p><a href="#idp7831552" class="para"><sup class="para">[88] </sup></a>
3427
3428 Copyright Infringements (Audio and Video Recorders), 475.
3429 </p></div><div id="ftn.idp7832528" class="footnote"><p><a href="#idp7832528" class="para"><sup class="para">[89] </sup></a>
3430
3431 <em class="citetitle">Universal City Studios, Inc</em>. v. <em class="citetitle">Sony Corp. of America</em>, 480 F. Supp. 429,
3432 (C.D. Cal., 1979).
3433 </p></div><div id="ftn.idp7835456" class="footnote"><p><a href="#idp7835456" class="para"><sup class="para">[90] </sup></a>
3434
3435 Copyright Infringements (Audio and Video Recorders), 485 (testimony
3436 of Jack Valenti).
3437 </p></div><div id="ftn.idp7838560" class="footnote"><p><a href="#idp7838560" class="para"><sup class="para">[91] </sup></a>
3438
3439 <em class="citetitle">Universal City Studios, Inc</em>. v. <em class="citetitle">Sony Corp. of America</em>, 659 F. 2d 963 (9th Cir.
3440 1981).
3441 </p></div><div id="ftn.idp7843712" class="footnote"><p><a href="#idp7843712" class="para"><sup class="para">[92] </sup></a>
3442
3443 <em class="citetitle">Sony Corp. of America</em> v. <em class="citetitle">Universal City Studios, Inc</em>., 464 U.S. 417, 431 (1984).
3444 </p></div><div id="ftn.idp7861024" class="footnote"><p><a href="#idp7861024" class="para"><sup class="para">[93] </sup></a>
3445
3446 These are the most important instances in our history, but there are other
3447 cases as well. The technology of digital audio tape (DAT), for example,
3448 was regulated by Congress to minimize the risk of piracy. The remedy
3449 Congress imposed did burden DAT producers, by taxing tape sales and
3450 controlling the technology of DAT. See Audio Home Recording Act of
3451 1992 (Title 17 of the <em class="citetitle">United States Code</em>), Pub. L. No. 102-563, 106 Stat.
3452 4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not
3453 eliminate the opportunity for free riding in the sense I've described. See
3454 Lessig, <em class="citetitle">Future</em>, 71. See also Picker, <span class="quote">«<span class="quote">From Edison to the Broadcast Flag,</span>»</span>
3455 <em class="citetitle">University of Chicago Law Review</em> 70 (2003): 293&#8211;96.
3456 <a class="indexterm" name="idp7793760"></a>
3457 <a class="indexterm" name="idp7864736"></a>
3458 </p></div><div id="ftn.idp7872496" class="footnote"><p><a href="#idp7872496" class="para"><sup class="para">[94] </sup></a>
3459
3460 <em class="citetitle">Sony Corp. of America</em> v. <em class="citetitle">Universal City Studios, Inc</em>., 464 U.S. 417,
3461 (1984).
3462 </p></div><div id="ftn.idp7878880" class="footnote"><p><a href="#idp7878880" class="para"><sup class="para">[95] </sup></a>
3463
3464 John Schwartz, <span class="quote">«<span class="quote">New Economy: The Attack on Peer-to-Peer Software
3465 Echoes Past Efforts,</span>»</span> <em class="citetitle">New York Times</em>, 22 September 2003, C3.
3466 </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>
3467
3468
3469 <span class="strong"><strong>The copyright warriors</strong></span> are right: A
3470 copyright is a kind of property. It can be owned and sold, and the law
3471 protects against its theft. Ordinarily, the copyright owner gets to
3472 hold out for any price he wants. Markets reckon the supply and demand
3473 that partially determine the price she can get.
3474 </p><p>
3475 But in ordinary language, to call a copyright a <span class="quote">«<span class="quote">property</span>»</span> right is a
3476 bit misleading, for the property of copyright is an odd kind of
3477 property.  Indeed, the very idea of property in any idea or any
3478 expression is very odd. I understand what I am taking when I take the
3479 picnic table you put in your backyard. I am taking a thing, the picnic
3480 table, and after I take it, you don't have it. But what am I taking
3481 when I take the good <span class="emphasis"><em>idea</em></span> you had to put a picnic
3482 table in the backyard&#8212;by, for example, going to Sears, buying a
3483 table, and putting it in my backyard? What is the thing I am taking
3484 then?
3485 </p><a class="indexterm" name="idp7890656"></a><p>
3486 The point is not just about the thingness of picnic tables versus
3487 ideas, though that's an important difference. The point instead is that
3488
3489 in the ordinary case&#8212;indeed, in practically every case except for a
3490         narrow
3491 range of exceptions&#8212;ideas released to the world are free. I don't
3492 take anything from you when I copy the way you dress&#8212;though I
3493 might seem weird if I did it every day, and especially weird if you are a
3494 woman. Instead, as Thomas Jefferson said (and as is especially true
3495 when I copy the way someone else dresses), <span class="quote">«<span class="quote">He who receives an idea
3496 from me, receives instruction himself without lessening mine; as he who
3497 lights his taper at mine, receives light without darkening me.</span>»</span><a href="#ftn.idp7892928" class="footnote" name="idp7892928"><sup class="footnote">[96]</sup></a>
3498 </p><a class="indexterm" name="idp7894384"></a><p>
3499 The exceptions to free use are ideas and expressions within the
3500 reach of the law of patent and copyright, and a few other domains that
3501 I won't discuss here. Here the law says you can't take my idea or
3502                 expression
3503 without my permission: The law turns the intangible into
3504 property.
3505 </p><p>
3506 But how, and to what extent, and in what form&#8212;the details,
3507 in other words&#8212;matter. To get a good sense of how this practice
3508 of turning the intangible into property emerged, we need to place this
3509 <span class="quote">«<span class="quote">property</span>»</span> in its proper context.<a href="#ftn.idp7896928" class="footnote" name="idp7896928"><sup class="footnote">[97]</sup></a>
3510 </p><p>
3511 My strategy in doing this will be the same as my strategy in the
3512 preceding part. I offer four stories to help put the idea of
3513 <span class="quote">«<span class="quote">copyright material is property</span>»</span> in context. Where did the idea come
3514 from? What are its limits? How does it function in practice? After
3515 these stories, the significance of this true
3516 statement&#8212;<span class="quote">«<span class="quote">copyright material is property</span>»</span>&#8212; will be a bit
3517 more clear, and its implications will be revealed as quite different
3518 from the implications that the copyright warriors would have us draw.
3519 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7892928" class="footnote"><p><a href="#idp7892928" class="para"><sup class="para">[96] </sup></a>
3520
3521 Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in
3522 <em class="citetitle">The Writings of Thomas Jefferson</em>, vol. 6 (Andrew A. Lipscomb and Albert
3523 Ellery Bergh, eds., 1903), 330, 333&#8211;34.
3524 </p></div><div id="ftn.idp7896928" class="footnote"><p><a href="#idp7896928" class="para"><sup class="para">[97] </sup></a>
3525
3526 As the legal realists taught American law, all property rights are
3527 intangible.  A property right is simply a right that an individual has
3528 against the world to do or not do certain things that may or may not
3529 attach to a physical object. The right itself is intangible, even if
3530 the object to which it is (metaphorically) attached is tangible. See
3531 Adam Mossoff, <span class="quote">«<span class="quote">What Is Property?  Putting the Pieces Back Together,</span>»</span>
3532 <em class="citetitle">Arizona Law Review</em> 45 (2003): 373, 429 n. 241.
3533 </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="idp7909312"></a><a class="indexterm" name="idp7910064"></a><a class="indexterm" name="idp7910816"></a><a class="indexterm" name="idxromeoandjulietshakespeare"></a><p>
3534 <span class="strong"><strong>William Shakespeare</strong></span> wrote
3535 <em class="citetitle">Romeo and Juliet</em> in 1595. The play was first
3536 published in 1597. It was the eleventh major play that Shakespeare had
3537 written. He would continue to write plays through 1613, and the plays
3538 that he wrote have continued to define Anglo-American culture ever
3539 since. So deeply have the works of a sixteenth-century writer seeped
3540 into our culture that we often don't even recognize their source.  I
3541 once overheard someone commenting on Kenneth Branagh's adaptation of
3542 Henry V: <span class="quote">«<span class="quote">I liked it, but Shakespeare is so full of
3543 clichés.</span>»</span>
3544 </p><a class="indexterm" name="idp7915152"></a><a class="indexterm" name="idxtonsonjacob"></a><p>
3545 In 1774, almost 180 years after <em class="citetitle">Romeo and Juliet</em> was written, the
3546 <span class="quote">«<span class="quote">copy-right</span>»</span> for the work was still thought by many to be the exclusive
3547 right of a single London publisher, Jacob Tonson.<a href="#ftn.idp7918288" class="footnote" name="idp7918288"><sup class="footnote">[98]</sup></a>
3548 Tonson was the most prominent of a small group of publishers called
3549 the Conger<a href="#ftn.idp7922592" class="footnote" name="idp7922592"><sup class="footnote">[99]</sup></a>
3550 who controlled bookselling in England during the eighteenth
3551 century. The Conger claimed a perpetual right to control the <span class="quote">«<span class="quote">copy</span>»</span> of
3552 books that they had acquired from authors. That perpetual right meant
3553 that no
3554
3555 one else could publish copies of a book to which they held the
3556 copyright.  Prices of the classics were thus kept high; competition to
3557 produce better or cheaper editions was eliminated.
3558 </p><a class="indexterm" name="idp7925040"></a><a class="indexterm" name="idxcopyrightdurationof2"></a><a class="indexterm" name="idp7927280"></a><a class="indexterm" name="idp7928288"></a><p>
3559 Now, there's something puzzling about the year 1774 to anyone who
3560 knows a little about copyright law. The better-known year in the
3561 history of copyright is 1710, the year that the British Parliament
3562 adopted the first <span class="quote">«<span class="quote">copyright</span>»</span> act. Known as the Statute of Anne, the
3563 act stated that all published works would get a copyright term of
3564 fourteen years, renewable once if the author was alive, and that all
3565 works already published by 1710 would get a single term of twenty-one
3566 additional years.<a href="#ftn.idp7930192" class="footnote" name="idp7930192"><sup class="footnote">[100]</sup></a> Under this law, <em class="citetitle">Romeo and Juliet</em> should have been
3567 free in 1731. So why was there any issue about it still being under
3568 Tonson's control in 1774?
3569 </p><a class="indexterm" name="idp7933200"></a><a class="indexterm" name="idp7934176"></a><a class="indexterm" name="idxlawcommonvspositive"></a><a class="indexterm" name="idp7936640"></a><a class="indexterm" name="idp7937392"></a><p>
3570 The reason is that the English hadn't yet agreed on what a <span class="quote">«<span class="quote">copyright</span>»</span>
3571 was&#8212;indeed, no one had. At the time the English passed the
3572 Statute of Anne, there was no other legislation governing copyrights.
3573 The last law regulating publishers, the Licensing Act of 1662, had
3574 expired in 1695. That law gave publishers a monopoly over publishing,
3575 as a way to make it easier for the Crown to control what was
3576 published.  But after it expired, there was no positive law that said
3577 that the publishers, or <span class="quote">«<span class="quote">Stationers,</span>»</span> had an exclusive right to print
3578 books.
3579 </p><a class="indexterm" name="idp7939824"></a><a class="indexterm" name="idp7940800"></a><p>
3580 There was no <span class="emphasis"><em>positive</em></span> law, but that didn't mean
3581 that there was no law. The Anglo-American legal tradition looks to
3582 both the words of legislatures and the words of judges to know the
3583 rules that are to govern how people are to behave. We call the words
3584 from legislatures <span class="quote">«<span class="quote">positive law.</span>»</span> We call the words from judges
3585 <span class="quote">«<span class="quote">common law.</span>»</span> The common law sets the background against which
3586 legislatures legislate; the legislature, ordinarily, can trump that
3587 background only if it passes a law to displace it. And so the real
3588 question after the licensing statutes had expired was whether the
3589 common law protected a copyright, independent of any positive law.
3590 </p><a class="indexterm" name="idp7943696"></a><a class="indexterm" name="idp7944672"></a><a class="indexterm" name="idxbritishparliament"></a><a class="indexterm" name="idp7946656"></a><a class="indexterm" name="idxstatuteofanne"></a><p>
3591 This question was important to the publishers, or <span class="quote">«<span class="quote">booksellers,</span>»</span> as
3592 they were called, because there was growing competition from foreign
3593 publishers. The Scottish, in particular, were increasingly publishing
3594 and exporting books to England. That competition reduced the profits
3595
3596
3597 of the Conger, which reacted by demanding that Parliament pass a law
3598 to again give them exclusive control over publishing. That demand
3599                 ultimately
3600 resulted in the Statute of Anne.
3601 </p><a class="indexterm" name="idxcopyrightasnarrowmonopolyright"></a><p>
3602 The Statute of Anne granted the author or <span class="quote">«<span class="quote">proprietor</span>»</span> of a book an
3603 exclusive right to print that book. In an important limitation,
3604 however, and to the horror of the booksellers, the law gave the
3605 bookseller that right for a limited term. At the end of that term, the
3606 copyright <span class="quote">«<span class="quote">expired,</span>»</span> and the work would then be free and could be
3607 published by anyone. Or so the legislature is thought to have
3608 believed.
3609 </p><a class="indexterm" name="idp7953088"></a><p>
3610 Now, the thing to puzzle about for a moment is this: Why would
3611 Parliament limit the exclusive right? Not why would they limit it to
3612 the particular limit they set, but why would they limit the right
3613 <span class="emphasis"><em>at all?</em></span>
3614 </p><a class="indexterm" name="idp7955040"></a><a class="indexterm" name="idp7956016"></a><a class="indexterm" name="idp7956768"></a><p>
3615 For the booksellers, and the authors whom they represented, had a very
3616 strong claim. Take <em class="citetitle">Romeo and Juliet</em> as an example: That play
3617 was written by Shakespeare. It was his genius that brought it into the
3618 world. He didn't take anybody's property when he created this play
3619 (that's a controversial claim, but never mind), and by his creating
3620 this play, he didn't make it any harder for others to craft a play. So
3621 why is it that the law would ever allow someone else to come along and
3622 take Shakespeare's play without his, or his estate's, permission? What
3623 reason is there to allow someone else to <span class="quote">«<span class="quote">steal</span>»</span> Shakespeare's work?
3624 </p><a class="indexterm" name="idp7959280"></a><p>
3625 The answer comes in two parts. We first need to see something special
3626 about the notion of <span class="quote">«<span class="quote">copyright</span>»</span> that existed at the time of the
3627 Statute of Anne. Second, we have to see something important about
3628 <span class="quote">«<span class="quote">booksellers.</span>»</span>
3629 </p><a class="indexterm" name="idp7961408"></a><p>
3630 First, about copyright. In the last three hundred years, we have come
3631 to apply the concept of <span class="quote">«<span class="quote">copyright</span>»</span> ever more broadly. But in 1710, it
3632 wasn't so much a concept as it was a very particular right. The
3633 copyright was born as a very specific set of restrictions: It forbade
3634 others from reprinting a book. In 1710, the <span class="quote">«<span class="quote">copy-right</span>»</span> was a right
3635 to use a particular machine to replicate a particular work. It did not
3636 go beyond that very narrow right. It did not control any more
3637 generally how
3638
3639 a work could be <span class="emphasis"><em>used</em></span>. Today the right includes a
3640 large collection of restrictions on the freedom of others: It grants
3641 the author the exclusive right to copy, the exclusive right to
3642 distribute, the exclusive right to perform, and so on.
3643 </p><a class="indexterm" name="idp7964960"></a><a class="indexterm" name="idp7965712"></a><p>
3644 So, for example, even if the copyright to Shakespeare's works were
3645 perpetual, all that would have meant under the original meaning of the
3646 term was that no one could reprint Shakespeare's work without the
3647 permission of the Shakespeare estate. It would not have controlled
3648 anything, for example, about how the work could be performed, whether
3649 the work could be translated, or whether Kenneth Branagh would be
3650 allowed to make his films. The <span class="quote">«<span class="quote">copy-right</span>»</span> was only an exclusive
3651 right to print&#8212;no less, of course, but also no more.
3652 </p><a class="indexterm" name="idp7967776"></a><a class="indexterm" name="idxmonopolycopyrightas"></a><a class="indexterm" name="idp7969760"></a><p>
3653 Even that limited right was viewed with skepticism by the British.
3654 They had had a long and ugly experience with <span class="quote">«<span class="quote">exclusive rights,</span>»</span>
3655 especially <span class="quote">«<span class="quote">exclusive rights</span>»</span> granted by the Crown. The English had
3656 fought a civil war in part about the Crown's practice of handing out
3657 monopolies&#8212;especially monopolies for works that already
3658 existed. King Henry VIII granted a patent to print the Bible and a
3659 monopoly to Darcy to print playing cards. The English Parliament began
3660 to fight back against this power of the Crown. In 1656, it passed the
3661 Statute of Monopolies, limiting monopolies to patents for new
3662 inventions. And by 1710, Parliament was eager to deal with the growing
3663 monopoly in publishing.
3664 </p><p>
3665 Thus the <span class="quote">«<span class="quote">copy-right,</span>»</span> when viewed as a monopoly right, was naturally
3666 viewed as a right that should be limited. (However convincing the
3667 claim that <span class="quote">«<span class="quote">it's my property, and I should have it forever,</span>»</span> try
3668 sounding convincing when uttering, <span class="quote">«<span class="quote">It's my monopoly, and I should
3669 have it forever.</span>»</span>) The state would protect the exclusive right, but
3670 only so long as it benefited society. The British saw the harms from
3671 specialinterest favors; they passed a law to stop them.
3672 </p><a class="indexterm" name="idp7974208"></a><a class="indexterm" name="idxbooksellersenglish"></a><a class="indexterm" name="idp7976192"></a><a class="indexterm" name="idxcopyrightdurationof3"></a><p>
3673 Second, about booksellers. It wasn't just that the copyright was a
3674 monopoly. It was also that it was a monopoly held by the booksellers.
3675 Booksellers sound quaint and harmless to us. They were not viewed
3676 as harmless in seventeenth-century England. Members of the Conger
3677
3678
3679 were increasingly seen as monopolists of the worst
3680 kind&#8212;tools of the Crown's repression, selling the liberty of
3681 England to guarantee themselves a monopoly profit. The attacks against
3682 these monopolists were harsh: Milton described them as <span class="quote">«<span class="quote">old patentees
3683 and monopolizers in the trade of book-selling</span>»</span>; they were <span class="quote">«<span class="quote">men who do
3684 not therefore labour in an honest profession to which learning is
3685 indetted.</span>»</span><a href="#ftn.idp7980304" class="footnote" name="idp7980304"><sup class="footnote">[101]</sup></a>
3686 </p><a class="indexterm" name="idp7981584"></a><a class="indexterm" name="idp7982336"></a><p>
3687 Many believed the power the booksellers exercised over the spread of
3688 knowledge was harming that spread, just at the time the Enlightenment
3689 was teaching the importance of education and knowledge spread
3690 generally. The idea that knowledge should be free was a hallmark of
3691 the time, and these powerful commercial interests were interfering
3692 with that idea.
3693 </p><a class="indexterm" name="idxbritishparliament2"></a><p>
3694 To balance this power, Parliament decided to increase competition
3695 among booksellers, and the simplest way to do that was to spread the
3696 wealth of valuable books. Parliament therefore limited the term of
3697 copyrights, and thereby guaranteed that valuable books would become
3698 open to any publisher to publish after a limited time. Thus the setting
3699 of the term for existing works to just twenty-one years was a
3700                 compromise
3701 to fight the power of the booksellers. The limitation on terms was
3702 an indirect way to assure competition among publishers, and thus the
3703 construction and spread of culture.
3704 </p><a class="indexterm" name="idxstatuteofanne2"></a><a class="indexterm" name="idxcopyrightinperpetuity"></a><p>
3705 When 1731 (1710 + 21) came along, however, the booksellers were
3706 getting anxious. They saw the consequences of more competition, and
3707 like every competitor, they didn't like them. At first booksellers simply
3708 ignored the Statute of Anne, continuing to insist on the perpetual right
3709 to control publication. But in 1735 and 1737, they tried to persuade
3710 Parliament to extend their terms. Twenty-one years was not enough,
3711 they said; they needed more time.
3712 </p><p>
3713 Parliament rejected their requests. As one pamphleteer put it, in
3714 words that echo today,
3715 </p><div class="blockquote"><blockquote class="blockquote"><p>
3716 I see no Reason for granting a further Term now, which will not
3717 hold as well for granting it again and again, as often as the Old
3718
3719 ones Expire; so that should this Bill pass, it will in Effect be
3720 establishing a perpetual Monopoly, a Thing deservedly odious in the
3721 Eye of the Law; it will be a great Cramp to Trade, a Discouragement to
3722 Learning, no Benefit to the Authors, but a general Tax on the Publick;
3723 and all this only to increase the private Gain of the
3724 Booksellers.<a href="#ftn.idp7991392" class="footnote" name="idp7991392"><sup class="footnote">[102]</sup></a>
3725 </p></blockquote></div><a class="indexterm" name="idp7993616"></a><a class="indexterm" name="idp7994592"></a><a class="indexterm" name="idp7995568"></a><a class="indexterm" name="idp7996320"></a><a class="indexterm" name="idp7997328"></a><p>
3726 Having failed in Parliament, the publishers turned to the courts in a
3727 series of cases. Their argument was simple and direct: The Statute of
3728 Anne gave authors certain protections through positive law, but those
3729 protections were not intended as replacements for the common law.
3730 Instead, they were intended simply to supplement the common law.
3731 Under common law, it was already wrong to take another person's
3732 creative <span class="quote">«<span class="quote">property</span>»</span> and use it without his permission. The Statute of
3733 Anne, the booksellers argued, didn't change that. Therefore, just
3734 because the protections of the Statute of Anne expired, that didn't
3735 mean the protections of the common law expired: Under the common law
3736 they had the right to ban the publication of a book, even if its
3737 Statute of Anne copyright had expired. This, they argued, was the only
3738 way to protect authors.
3739 </p><a class="indexterm" name="idp7999712"></a><p>
3740 This was a clever argument, and one that had the support of some of
3741 the leading jurists of the day. It also displayed extraordinary
3742 chutzpah.  Until then, as law professor Raymond Patterson has put it,
3743 <span class="quote">«<span class="quote">The publishers &#8230; had as much concern for authors as a cattle
3744 rancher has for cattle.</span>»</span><a href="#ftn.idp7739600" class="footnote" name="idp7739600"><sup class="footnote">[103]</sup></a>
3745 The bookseller didn't care squat for the rights of the author.  His
3746 concern was the monopoly profit that the author's work gave.
3747 </p><a class="indexterm" name="idxdonaldsonalexander"></a><a class="indexterm" name="idp8006160"></a><a class="indexterm" name="idxscottishpublishers"></a><p>
3748 The booksellers' argument was not accepted without a fight.
3749 The hero of this fight was a Scottish bookseller named Alexander
3750 Donaldson.<a href="#ftn.idp8008560" class="footnote" name="idp8008560"><sup class="footnote">[104]</sup></a>
3751 </p><a class="indexterm" name="idxstatuteofanne3"></a><a class="indexterm" name="idxconger"></a><a class="indexterm" name="idp8012304"></a><a class="indexterm" name="idp8013056"></a><p>
3752 Donaldson was an outsider to the London Conger. He began his
3753 career in Edinburgh in 1750. The focus of his business was inexpensive
3754 reprints <span class="quote">«<span class="quote">of standard works whose copyright term had expired,</span>»</span> at least
3755 under the Statute of Anne.<a href="#ftn.idp8014608" class="footnote" name="idp8014608"><sup class="footnote">[105]</sup></a>
3756 Donaldson's publishing house prospered
3757
3758 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
3759 them,</span>»</span> Professor Mark Rose writes, was <span class="quote">«<span class="quote">the young James Boswell
3760 who, together with his friend Andrew Erskine, published an anthology
3761 of contemporary Scottish poems with Donaldson.</span>»</span><a href="#ftn.idp8017952" class="footnote" name="idp8017952"><sup class="footnote">[106]</sup></a>
3762 </p><a class="indexterm" name="idxcommonlaw"></a><p>
3763 When the London booksellers tried to shut down Donaldson's shop in
3764 Scotland, he responded by moving his shop to London, where he sold
3765 inexpensive editions <span class="quote">«<span class="quote">of the most popular English books, in defiance
3766 of the supposed common law right of Literary
3767 Property.</span>»</span><a href="#ftn.idp8020880" class="footnote" name="idp8020880"><sup class="footnote">[107]</sup></a>
3768 His books undercut the Conger prices by 30 to 50 percent, and he
3769 rested his right to compete upon the ground that, under the Statute of
3770 Anne, the works he was selling had passed out of protection.
3771 </p><a class="indexterm" name="idp8023120"></a><a class="indexterm" name="idxmillarvtaylor"></a><p>
3772 The London booksellers quickly brought suit to block <span class="quote">«<span class="quote">piracy</span>»</span> like
3773 Donaldson's. A number of actions were successful against the <span class="quote">«<span class="quote">pirates,</span>»</span>
3774 the most important early victory being <em class="citetitle">Millar</em> v. <em class="citetitle">Taylor</em>.
3775 </p><a class="indexterm" name="idp8027328"></a><a class="indexterm" name="idp8028304"></a><a class="indexterm" name="idxthomsonjames"></a><a class="indexterm" name="idxcopyrightinperpetuity2"></a><a class="indexterm" name="idp8032000"></a><a class="indexterm" name="idp8032752"></a><p>
3776 Millar was a bookseller who in 1729 had purchased the rights to James
3777 Thomson's poem <span class="quote">«<span class="quote">The Seasons.</span>»</span> Millar complied with the requirements of
3778 the Statute of Anne, and therefore received the full protection of the
3779 statute. After the term of copyright ended, Robert Taylor began
3780 printing a competing volume. Millar sued, claiming a perpetual common
3781 law right, the Statute of Anne notwithstanding.<a href="#ftn.idp8034544" class="footnote" name="idp8034544"><sup class="footnote">[108]</sup></a>
3782 </p><a class="indexterm" name="idxmansfieldwilliammurraylord2"></a><p>
3783 Astonishingly to modern lawyers, one of the greatest judges in English
3784 history, Lord Mansfield, agreed with the booksellers. Whatever
3785 protection the Statute of Anne gave booksellers, it did not, he held,
3786 extinguish any common law right. The question was whether the common
3787 law would protect the author against subsequent <span class="quote">«<span class="quote">pirates.</span>»</span>
3788 Mansfield's answer was yes: The common law would bar Taylor from
3789 reprinting Thomson's poem without Millar's permission. That common law
3790 rule thus effectively gave the booksellers a perpetual right to
3791 control the publication of any book assigned to them.
3792 </p><a class="indexterm" name="idp8038928"></a><a class="indexterm" name="idp8039904"></a><a class="indexterm" name="idp8040880"></a><a class="indexterm" name="idxbritishparliament3"></a><p>
3793 Considered as a matter of abstract justice&#8212;reasoning as if
3794 justice were just a matter of logical deduction from first
3795 principles&#8212;Mansfield's conclusion might make some sense. But
3796 what it ignored was the larger issue that Parliament had struggled
3797 with in 1710: How best to limit
3798
3799 the monopoly power of publishers? Parliament's strategy was to offer a
3800 term for existing works that was long enough to buy peace in 1710, but
3801 short enough to assure that culture would pass into competition within
3802 a reasonable period of time. Within twenty-one years, Parliament
3803 believed, Britain would mature from the controlled culture that the
3804 Crown coveted to the free culture that we inherited.
3805 </p><a class="indexterm" name="idp8044448"></a><a class="indexterm" name="idxdonaldsonalexander2"></a><a class="indexterm" name="idxscottishpublishers2"></a><p>
3806 The fight to defend the limits of the Statute of Anne was not to end
3807 there, however, and it is here that Donaldson enters the mix.
3808 </p><a class="indexterm" name="idp8048416"></a><a class="indexterm" name="idp8049168"></a><a class="indexterm" name="idxhouseoflords"></a><a class="indexterm" name="idxsupremecourtushouseoflordsvs"></a><p>
3809 Millar died soon after his victory, so his case was not appealed. His
3810 estate sold Thomson's poems to a syndicate of printers that included
3811 Thomas Beckett.<a href="#ftn.idp8053072" class="footnote" name="idp8053072"><sup class="footnote">[109]</sup></a>
3812 Donaldson then released an unauthorized edition
3813 of Thomson's works. Beckett, on the strength of the decision in <em class="citetitle">Millar</em>,
3814 got an injunction against Donaldson. Donaldson appealed the case to
3815 the House of Lords, which functioned much like our own Supreme
3816 Court. In February of 1774, that body had the chance to interpret the
3817 meaning of Parliament's limits from sixty years before.
3818 </p><a class="indexterm" name="idp8054752"></a><a class="indexterm" name="idp8055728"></a><a class="indexterm" name="idxdonaldsonvbeckett"></a><a class="indexterm" name="idxcommonlaw2"></a><p>
3819 As few legal cases ever do, <em class="citetitle">Donaldson</em> v. <em class="citetitle">Beckett</em> drew an
3820 enormous amount of attention throughout Britain. Donaldson's lawyers
3821 argued that whatever rights may have existed under the common law, the
3822 Statute of Anne terminated those rights. After passage of the Statute
3823 of Anne, the only legal protection for an exclusive right to control
3824 publication came from that statute. Thus, they argued, after the term
3825 specified in the Statute of Anne expired, works that had been
3826 protected by the statute were no longer protected.
3827 </p><a class="indexterm" name="idp8060800"></a><p>
3828 The House of Lords was an odd institution. Legal questions were
3829 presented to the House and voted upon first by the <span class="quote">«<span class="quote">law lords,</span>»</span>
3830 members of special legal distinction who functioned much like the
3831 Justices in our Supreme Court. Then, after the law lords voted, the
3832 House of Lords generally voted.
3833 </p><a class="indexterm" name="idp8062848"></a><a class="indexterm" name="idxcopyrightinperpetuity3"></a><a class="indexterm" name="idxpublicdomainenglishlegalestablishmentof"></a><p>
3834 The reports about the law lords' votes are mixed. On some counts,
3835 it looks as if perpetual copyright prevailed. But there is no ambiguity
3836
3837 about how the House of Lords voted as whole. By a two-to-one majority
3838 (22 to 11) they voted to reject the idea of perpetual copyrights.
3839 Whatever one's understanding of the common law, now a copyright was
3840 fixed for a limited time, after which the work protected by copyright
3841 passed into the public domain.
3842 </p><a class="indexterm" name="idp8067920"></a><a class="indexterm" name="idp8068672"></a><a class="indexterm" name="idp8069424"></a><a class="indexterm" name="idp8070176"></a><a class="indexterm" name="idp8070928"></a><p>
3843 <span class="quote">«<span class="quote">The public domain.</span>»</span> Before the case of <em class="citetitle">Donaldson</em>
3844 v. <em class="citetitle">Beckett</em>, there was no clear idea of a public domain in
3845 England. Before 1774, there was a strong argument that common law
3846 copyrights were perpetual.  After 1774, the public domain was
3847 born. For the first time in Anglo-American history, the legal control
3848 over creative works expired, and the greatest works in English
3849 history&#8212;including those of Shakespeare, Bacon, Milton, Johnson,
3850 and Bunyan&#8212;were free of legal restraint.
3851 </p><a class="indexterm" name="idp8073088"></a><a class="indexterm" name="idp8074720"></a><a class="indexterm" name="idp8075696"></a><a class="indexterm" name="idp8076672"></a><a class="indexterm" name="idp8077648"></a><a class="indexterm" name="idp8078624"></a><p>
3852 It is hard for us to imagine, but this decision by the House of Lords
3853 fueled an extraordinarily popular and political reaction. In Scotland,
3854 where most of the <span class="quote">«<span class="quote">pirate publishers</span>»</span> did their work, people
3855 celebrated the decision in the streets. As the <em class="citetitle">Edinburgh Advertiser</em>
3856 reported, <span class="quote">«<span class="quote">No private cause has so much engrossed the attention of the
3857 public, and none has been tried before the House of Lords in the
3858 decision of which so many individuals were interested.</span>»</span> <span class="quote">«<span class="quote">Great
3859 rejoicing in Edinburgh upon victory over literary property: bonfires
3860 and illuminations.</span>»</span><a href="#ftn.idp8081520" class="footnote" name="idp8081520"><sup class="footnote">[110]</sup></a>
3861 </p><a class="indexterm" name="idp8082416"></a><p>
3862 In London, however, at least among publishers, the reaction was
3863 equally strong in the opposite direction. The <em class="citetitle">Morning Chronicle</em>
3864 reported:
3865 </p><div class="blockquote"><blockquote class="blockquote"><p>
3866 By the above decision &#8230; near 200,000 pounds worth of what was
3867 honestly purchased at public sale, and which was yesterday thought
3868 property is now reduced to nothing. The Booksellers of London and
3869 Westminster, many of whom sold estates and houses to purchase
3870 Copy-right, are in a manner ruined, and those who after many years
3871 industry thought they had acquired a competency to provide for their
3872 families now find themselves without a shilling to devise to their
3873 successors.<a href="#ftn.idp8001424" class="footnote" name="idp8001424"><sup class="footnote">[111]</sup></a>
3874 </p></blockquote></div><a class="indexterm" name="idp8086320"></a><a class="indexterm" name="idp8087072"></a><p>
3875
3876 <span class="quote">«<span class="quote">Ruined</span>»</span> is a bit of an exaggeration. But it is not an exaggeration to
3877 say that the change was profound. The decision of the House of Lords
3878 meant that the booksellers could no longer control how culture in
3879 England would grow and develop. Culture in England was thereafter
3880 <span class="emphasis"><em>free</em></span>.  Not in the sense that copyrights would not
3881 be respected, for of course, for a limited time after a work was
3882 published, the bookseller had an exclusive right to control the
3883 publication of that book. And not in the sense that books could be
3884 stolen, for even after a copyright expired, you still had to buy the
3885 book from someone. But <span class="emphasis"><em>free</em></span> in the sense that the
3886 culture and its growth would no longer be controlled by a small group
3887 of publishers. As every free market does, this free market of free
3888 culture would grow as the consumers and producers chose. English
3889 culture would develop as the many English readers chose to let it
3890 develop&#8212; chose in the books they bought and wrote; chose in the
3891 memes they repeated and endorsed. Chose in a <span class="emphasis"><em>competitive
3892 context</em></span>, not a context in which the choices about what
3893 culture is available to people and how they get access to it are made
3894 by the few despite the wishes of the many.
3895 </p><a class="indexterm" name="idp8091552"></a><a class="indexterm" name="idp8092528"></a><p>
3896 At least, this was the rule in a world where the Parliament is
3897 antimonopoly, resistant to the protectionist pleas of publishers. In a
3898 world where the Parliament is more pliant, free culture would be less
3899 protected.
3900 </p><a class="indexterm" name="idp8093904"></a><a class="indexterm" name="idp8094880"></a><a class="indexterm" name="idp8095856"></a><a class="indexterm" name="idp8096832"></a><a class="indexterm" name="idp8097808"></a><a class="indexterm" name="idp8098784"></a><a class="indexterm" name="idp8099760"></a><a class="indexterm" name="idp8100736"></a><a class="indexterm" name="idp8101712"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7918288" class="footnote"><p><a href="#idp7918288" class="para"><sup class="para">[98] </sup></a>
3901
3902 <a class="indexterm" name="idp7918928"></a>
3903 <a class="indexterm" name="idp7919680"></a>
3904 Jacob Tonson is typically remembered for his associations with prominent
3905 eighteenth-century literary figures, especially John Dryden, and for his
3906 handsome <span class="quote">«<span class="quote">definitive editions</span>»</span> of classic works. In addition to <em class="citetitle">Romeo and
3907 Juliet</em>, he published an astonishing array of works that still remain at the
3908 heart of the English canon, including collected works of Shakespeare, Ben
3909 Jonson, John Milton, and John Dryden. See Keith Walker, <span class="quote">«<span class="quote">Jacob Tonson,
3910 Bookseller,</span>»</span> <em class="citetitle">American Scholar</em> 61:3 (1992): 424&#8211;31.
3911 </p></div><div id="ftn.idp7922592" class="footnote"><p><a href="#idp7922592" class="para"><sup class="para">[99] </sup></a>
3912
3913 Lyman Ray Patterson, <em class="citetitle">Copyright in Historical Perspective</em> (Nashville:
3914 Vanderbilt University Press, 1968), 151&#8211;52.
3915 </p></div><div id="ftn.idp7930192" class="footnote"><p><a href="#idp7930192" class="para"><sup class="para">[100] </sup></a>
3916
3917 <a class="indexterm" name="idp7930832"></a>
3918 As Siva Vaidhyanathan nicely argues, it is erroneous to call this a
3919 <span class="quote">«<span class="quote">copyright law.</span>»</span> See Vaidhyanathan, <em class="citetitle">Copyrights and Copywrongs</em>, 40.
3920 </p></div><div id="ftn.idp7980304" class="footnote"><p><a href="#idp7980304" class="para"><sup class="para">[101] </sup></a>
3921
3922
3923 Philip Wittenberg, <em class="citetitle">The Protection and Marketing of Literary
3924 Property</em> (New York: J. Messner, Inc., 1937), 31.
3925 </p></div><div id="ftn.idp7991392" class="footnote"><p><a href="#idp7991392" class="para"><sup class="para">[102] </sup></a>
3926
3927 A Letter to a Member of Parliament concerning the Bill now depending
3928 in the House of Commons, for making more effectual an Act in the
3929 Eighth Year of the Reign of Queen Anne, entitled, An Act for the
3930 Encouragement of Learning, by Vesting the Copies of Printed Books in
3931 the Authors or Purchasers of such Copies, during the Times therein
3932 mentioned (London, 1735), in Brief Amici Curiae of Tyler T. Ochoa et
3933 al., 8, <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 537 U.S. 186 (2003) (No. 01-618).
3934 </p></div><div id="ftn.idp7739600" class="footnote"><p><a href="#idp7739600" class="para"><sup class="para">[103] </sup></a>
3935
3936 <a class="indexterm" name="idp8002160"></a>
3937 <a class="indexterm" name="idp8002912"></a>
3938 Lyman Ray Patterson, <span class="quote">«<span class="quote">Free Speech, Copyright, and Fair Use,</span>»</span> <em class="citetitle">Vanderbilt
3939 Law Review</em> 40 (1987): 28. For a wonderfully compelling account, see
3940 Vaidhyanathan, 37&#8211;48.
3941 </p></div><div id="ftn.idp8008560" class="footnote"><p><a href="#idp8008560" class="para"><sup class="para">[104] </sup></a>
3942
3943 For a compelling account, see David Saunders, <em class="citetitle">Authorship and Copyright</em>
3944 (London: Routledge, 1992), 62&#8211;69.
3945 </p></div><div id="ftn.idp8014608" class="footnote"><p><a href="#idp8014608" class="para"><sup class="para">[105] </sup></a>
3946
3947 Mark Rose, <em class="citetitle">Authors and Owners</em> (Cambridge: Harvard University Press,
3948 1993), 92.
3949 <a class="indexterm" name="idp8015632"></a>
3950 </p></div><div id="ftn.idp8017952" class="footnote"><p><a href="#idp8017952" class="para"><sup class="para">[106] </sup></a>
3951
3952 Ibid., 93.
3953 </p></div><div id="ftn.idp8020880" class="footnote"><p><a href="#idp8020880" class="para"><sup class="para">[107] </sup></a>
3954
3955 <a class="indexterm" name="idp8021520"></a>
3956 Lyman Ray Patterson, <em class="citetitle">Copyright in Historical Perspective</em>, 167 (quoting
3957 Borwell).
3958 </p></div><div id="ftn.idp8034544" class="footnote"><p><a href="#idp8034544" class="para"><sup class="para">[108] </sup></a>
3959
3960 Howard B. Abrams, <span class="quote">«<span class="quote">The Historic Foundation of American Copyright Law:
3961 Exploding the Myth of Common Law Copyright,</span>»</span> <em class="citetitle">Wayne Law Review</em> 29
3962 (1983): 1152.
3963 </p></div><div id="ftn.idp8053072" class="footnote"><p><a href="#idp8053072" class="para"><sup class="para">[109] </sup></a>
3964
3965 Ibid., 1156.
3966 </p></div><div id="ftn.idp8081520" class="footnote"><p><a href="#idp8081520" class="para"><sup class="para">[110] </sup></a>
3967
3968 Rose, 97.
3969 </p></div><div id="ftn.idp8001424" class="footnote"><p><a href="#idp8001424" class="para"><sup class="para">[111] </sup></a>
3970
3971 Ibid.
3972 </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>
3973 <span class="strong"><strong>Jon Else</strong></span> is a filmmaker. He is best
3974 known for his documentaries and has been very successful in spreading
3975 his art. He is also a teacher, and as a teacher myself, I envy the
3976 loyalty and admiration that his students feel for him. (I met, by
3977 accident, two of his students at a dinner party.  He was their god.)
3978 </p><p>
3979 Else worked on a documentary that I was involved in. At a break,
3980 he told me a story about the freedom to create with film in America
3981 today.
3982 </p><a class="indexterm" name="idxwagnerrichard"></a><a class="indexterm" name="idp8114224"></a><p>
3983 In 1990, Else was working on a documentary about Wagner's Ring
3984 Cycle. The focus was stagehands at the San Francisco Opera.
3985 Stagehands are a particularly funny and colorful element of an opera.
3986 During a show, they hang out below the stage in the grips' lounge and
3987 in the lighting loft. They make a perfect contrast to the art on the
3988 stage.
3989 </p><a class="indexterm" name="idxsimpsonsthe"></a><p>
3990 During one of the performances, Else was shooting some stagehands
3991 playing checkers. In one corner of the room was a television set.
3992 Playing on the television set, while the stagehands played checkers
3993 and the opera company played Wagner, was <em class="citetitle">The Simpsons</em>. As Else judged
3994
3995 it, this touch of cartoon helped capture the flavor of what was special
3996 about the scene.
3997 </p><a class="indexterm" name="idp8118336"></a><a class="indexterm" name="idp8119312"></a><p>
3998 Years later, when he finally got funding to complete the film, Else
3999 attempted to clear the rights for those few seconds of <em class="citetitle">The Simpsons</em>.
4000 For of course, those few seconds are copyrighted; and of course, to use
4001 copyrighted material you need the permission of the copyright owner,
4002 unless <span class="quote">«<span class="quote">fair use</span>»</span> or some other privilege applies.
4003 </p><a class="indexterm" name="idxgraciefilms"></a><a class="indexterm" name="idxgroeningmatt"></a><p>
4004 Else called <em class="citetitle">Simpsons</em> creator Matt Groening's office to get permission.
4005 Groening approved the shot. The shot was a four-and-a-halfsecond image
4006 on a tiny television set in the corner of the room. How could it hurt?
4007 Groening was happy to have it in the film, but he told Else to contact
4008 Gracie Films, the company that produces the program.
4009 </p><a class="indexterm" name="idxfoxfilmcompany"></a><p>
4010 Gracie Films was okay with it, too, but they, like Groening, wanted
4011 to be careful. So they told Else to contact Fox, Gracie's parent company.
4012 Else called Fox and told them about the clip in the corner of the one
4013 room shot of the film. Matt Groening had already given permission,
4014 Else said. He was just confirming the permission with Fox.
4015 </p><a class="indexterm" name="idp8127312"></a><p>
4016 Then, as Else told me, <span class="quote">«<span class="quote">two things happened. First we discovered
4017 &#8230; that Matt Groening doesn't own his own creation&#8212;or at
4018 least that someone [at Fox] believes he doesn't own his own creation.</span>»</span>
4019 And second, Fox <span class="quote">«<span class="quote">wanted ten thousand dollars as a licensing fee for us
4020 to use this four-point-five seconds of &#8230; entirely unsolicited
4021 <em class="citetitle">Simpsons</em> which was in the corner of the shot.</span>»</span>
4022 </p><a class="indexterm" name="idp8130256"></a><a class="indexterm" name="idp8131120"></a><a class="indexterm" name="idxherrerarebecca"></a><p>
4023 Else was certain there was a mistake. He worked his way up to someone
4024 he thought was a vice president for licensing, Rebecca Herrera.  He
4025 explained to her, <span class="quote">«<span class="quote">There must be some mistake here. &#8230;  We're
4026 asking for your educational rate on this.</span>»</span> That was the educational
4027 rate, Herrera told Else. A day or so later, Else called again to
4028 confirm what he had been told.
4029 </p><a class="indexterm" name="idp8134512"></a><p>
4030 <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
4031 have your facts straight,</span>»</span> she said. It would cost $10,000 to use the
4032 clip of <em class="citetitle">The Simpsons</em> in the corner of a shot in a documentary film
4033 about
4034
4035
4036 Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, <span class="quote">«<span class="quote">And
4037 if you quote me, I'll turn you over to our attorneys.</span>»</span> As an assistant
4038 to Herrera told Else later on, <span class="quote">«<span class="quote">They don't give a shit. They just want
4039 the money.</span>»</span>
4040 </p><a class="indexterm" name="idp8137984"></a><a class="indexterm" name="idp8138960"></a><a class="indexterm" name="idp8139712"></a><p>
4041 Else didn't have the money to buy the right to replay what was playing
4042 on the television backstage at the San Francisco Opera. To reproduce
4043 this reality was beyond the documentary filmmaker's budget. At the
4044 very last minute before the film was to be released, Else digitally
4045 replaced the shot with a clip from another film that he had worked on,
4046 <em class="citetitle">The Day After Trinity</em>, from ten years before.
4047 </p><a class="indexterm" name="idxfoxfilmcompany2"></a><a class="indexterm" name="idxgroeningmatt2"></a><p>
4048 There's no doubt that someone, whether Matt Groening or Fox, owns the
4049 copyright to <em class="citetitle">The Simpsons</em>. That copyright is their property.  To use
4050 that copyrighted material thus sometimes requires the permission of
4051 the copyright owner. If the use that Else wanted to make of the
4052 <em class="citetitle">Simpsons</em> copyright were one of the uses restricted by the law, then he
4053 would need to get the permission of the copyright owner before he
4054 could use the work in that way. And in a free market, it is the owner
4055 of the copyright who gets to set the price for any use that the law
4056 says the owner gets to control.
4057 </p><p>
4058 For example, <span class="quote">«<span class="quote">public performance</span>»</span> is a use of <em class="citetitle">The Simpsons</em> that the
4059 copyright owner gets to control. If you take a selection of favorite
4060 episodes, rent a movie theater, and charge for tickets to come see <span class="quote">«<span class="quote">My
4061 Favorite <em class="citetitle">Simpsons</em>,</span>»</span> then you need to get permission from the copyright
4062 owner. And the copyright owner (rightly, in my view) can charge
4063 whatever she wants&#8212;$10 or $1,000,000. That's her right, as set
4064 by the law.
4065 </p><p>
4066 But when lawyers hear this story about Jon Else and Fox, their first
4067 thought is <span class="quote">«<span class="quote">fair use.</span>»</span><a href="#ftn.idp8148736" class="footnote" name="idp8148736"><sup class="footnote">[112]</sup></a>
4068 Else's use of just 4.5 seconds of an indirect shot of a <em class="citetitle">Simpsons</em>
4069 episode is clearly a fair use of <em class="citetitle">The Simpsons</em>&#8212;and fair use does
4070 not require the permission of anyone.
4071 </p><a class="indexterm" name="idp8152064"></a><a class="indexterm" name="idp8153040"></a><p>
4072
4073 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:
4074 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idxfairuselegalintimidationtacticsagainst"></a><p>
4075 The <em class="citetitle">Simpsons</em> fiasco was for me a great lesson in the gulf between what
4076 lawyers find irrelevant in some abstract sense, and what is crushingly
4077 relevant in practice to those of us actually trying to make and
4078 broadcast documentaries. I never had any doubt that it was <span class="quote">«<span class="quote">clearly
4079 fair use</span>»</span> in an absolute legal sense. But I couldn't rely on the
4080 concept in any concrete way. Here's why:
4081 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><a class="indexterm" name="idp8159552"></a><p>
4082
4083 Before our films can be broadcast, the network requires that we buy
4084 Errors and Omissions insurance. The carriers require a detailed
4085 <span class="quote">«<span class="quote">visual cue sheet</span>»</span> listing the source and licensing status of each
4086 shot in the film. They take a dim view of <span class="quote">«<span class="quote">fair use,</span>»</span> and a claim of
4087 <span class="quote">«<span class="quote">fair use</span>»</span> can grind the application process to a halt.
4088 </p></li><li class="listitem"><a class="indexterm" name="idxfoxfilmcompany3"></a><a class="indexterm" name="idp8163840"></a><a class="indexterm" name="idp8164592"></a><a class="indexterm" name="idp8165344"></a><p>
4089
4090 I probably never should have asked Matt Groening in the first
4091 place. But I knew (at least from folklore) that Fox had a history of
4092 tracking down and stopping unlicensed <em class="citetitle">Simpsons</em> usage, just as George
4093 Lucas had a very high profile litigating <em class="citetitle">Star Wars</em> usage. So I decided
4094 to play by the book, thinking that we would be granted free or cheap
4095 license to four seconds of <em class="citetitle">Simpsons</em>. As a documentary producer working
4096 to exhaustion on a shoestring, the last thing I wanted was to risk
4097 legal trouble, even nuisance legal trouble, and even to defend a
4098 principle.
4099 </p></li><li class="listitem"><p>
4100
4101 I did, in fact, speak with one of your colleagues at Stanford Law
4102 School &#8230; who confirmed that it was fair use. He also confirmed
4103 that Fox would <span class="quote">«<span class="quote">depose and litigate you to within an inch of your
4104 life,</span>»</span> regardless of the merits of my claim. He made clear that it
4105 would boil down to who had the bigger legal department and the deeper
4106 pockets, me or them.
4107
4108 </p><a class="indexterm" name="idp8170448"></a></li><li class="listitem"><p>
4109
4110 The question of fair use usually comes up at the end of the
4111 project, when we are up against a release deadline and out of
4112 money.
4113 </p></li></ol></div></blockquote></div><a class="indexterm" name="idp8172720"></a><p>
4114 In theory, fair use means you need no permission. The theory therefore
4115 supports free culture and insulates against a permission culture.  But
4116 in practice, fair use functions very differently. The fuzzy lines of
4117 the law, tied to the extraordinary liability if lines are crossed,
4118 means that the effective fair use for many types of creators is
4119 slight. The law has the right aim; practice has defeated the aim.
4120 </p><p>
4121 This practice shows just how far the law has come from its
4122 eighteenth-century roots. The law was born as a shield to protect
4123 publishers' profits against the unfair competition of a pirate. It has
4124 matured into a sword that interferes with any use, transformative or
4125 not.
4126 </p><a class="indexterm" name="idp8175184"></a><a class="indexterm" name="idp8176160"></a><a class="indexterm" name="idp8177136"></a><a class="indexterm" name="idp8178112"></a><a class="indexterm" name="idp8179440"></a><a class="indexterm" name="idp8180784"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8148736" class="footnote"><p><a href="#idp8148736" class="para"><sup class="para">[112] </sup></a>
4127
4128 For an excellent argument that such use is <span class="quote">«<span class="quote">fair use,</span>»</span> but that
4129 lawyers don't permit recognition that it is <span class="quote">«<span class="quote">fair use,</span>»</span> see Richard
4130 A. Posner with William F. Patry, <span class="quote">«<span class="quote">Fair Use and Statutory Reform in the
4131 Wake of <em class="citetitle">Eldred</em></span>»</span> (draft on file with author), University of Chicago
4132 Law School, 5 August 2003.
4133 </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="idp8184048"></a><a class="indexterm" name="idxalbenalex1"></a><a class="indexterm" name="idp8186288"></a><p>
4134 <span class="strong"><strong>In 1993</strong></span>, Alex Alben was a lawyer
4135 working at Starwave, Inc.  Starwave was an innovative company founded
4136 by Microsoft cofounder Paul Allen to develop digital
4137 entertainment. Long before the Internet became popular, Starwave began
4138 investing in new technology for delivering entertainment in
4139 anticipation of the power of networks.
4140 </p><a class="indexterm" name="idxartistsretrospective"></a><a class="indexterm" name="idxcdroms"></a><p>
4141 Alben had a special interest in new technology. He was intrigued by
4142 the emerging market for CD-ROM technology&#8212;not to distribute
4143 film, but to do things with film that otherwise would be very
4144 difficult.  In 1993, he launched an initiative to develop a product to
4145 build retrospectives on the work of particular actors. The first actor
4146 chosen was Clint Eastwood. The idea was to showcase all of the work of
4147 Eastwood, with clips from his films and interviews with figures
4148 important to his career.
4149 </p><p>
4150 At that time, Eastwood had made more than fifty films, as an actor and
4151 as a director. Alben began with a series of interviews with Eastwood,
4152 asking him about his career. Because Starwave produced those
4153 interviews, it was free to include them on the CD.
4154 </p><p>
4155
4156 That alone would not have made a very interesting product, so
4157 Starwave wanted to add content from the movies in Eastwood's career:
4158 posters, scripts, and other material relating to the films Eastwood
4159 made. Most of his career was spent at Warner Brothers, and so it was
4160 relatively easy to get permission for that content.
4161 </p><p>
4162 Then Alben and his team decided to include actual film clips. <span class="quote">«<span class="quote">Our
4163 goal was that we were going to have a clip from every one of
4164 Eastwood's films,</span>»</span> Alben told me. It was here that the problem
4165 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
4166 one had ever tried to do this in the context of an artistic look at an
4167 actor's career.</span>»</span>
4168 </p><p>
4169 Alben brought the idea to Michael Slade, the CEO of Starwave.
4170 Slade asked, <span class="quote">«<span class="quote">Well, what will it take?</span>»</span>
4171 </p><p>
4172 Alben replied, <span class="quote">«<span class="quote">Well, we're going to have to clear rights from
4173 everyone who appears in these films, and the music and everything
4174 else that we want to use in these film clips.</span>»</span> Slade said, <span class="quote">«<span class="quote">Great! Go
4175 for it.</span>»</span><a href="#ftn.idp8198416" class="footnote" name="idp8198416"><sup class="footnote">[113]</sup></a>
4176 </p><p>
4177 The problem was that neither Alben nor Slade had any idea what
4178 clearing those rights would mean. Every actor in each of the films
4179 could have a claim to royalties for the reuse of that film. But CD-
4180 ROMs had not been specified in the contracts for the actors, so there
4181 was no clear way to know just what Starwave was to do.
4182 </p><p>
4183 I asked Alben how he dealt with the problem. With an obvious
4184 pride in his resourcefulness that obscured the obvious bizarreness of his
4185 tale, Alben recounted just what they did:
4186 </p><div class="blockquote"><blockquote class="blockquote"><p>
4187 So we very mechanically went about looking up the film clips.  We made
4188 some artistic decisions about what film clips to include&#8212;of
4189 course we were going to use the <span class="quote">«<span class="quote">Make my day</span>»</span> clip from <em class="citetitle">Dirty
4190 Harry</em>. But you then need to get the guy on the ground who's wiggling
4191 under the gun and you need to get his permission.  And then you have
4192 to decide what you are going to pay him.
4193 </p><p>
4194
4195 We decided that it would be fair if we offered them the dayplayer rate
4196 for the right to reuse that performance. We're talking about a clip of
4197 less than a minute, but to reuse that performance in the CD-ROM the
4198 rate at the time was about $600.  So we had to identify the
4199 people&#8212;some of them were hard to identify because in Eastwood
4200 movies you can't tell who's the guy crashing through the
4201 glass&#8212;is it the actor or is it the stuntman?  And then we just,
4202 we put together a team, my assistant and some others, and we just
4203 started calling people.
4204 </p></blockquote></div><a class="indexterm" name="idp8206128"></a><p>
4205 Some actors were glad to help&#8212;Donald Sutherland, for example,
4206 followed up himself to be sure that the rights had been cleared.
4207 Others were dumbfounded at their good fortune. Alben would ask,
4208 <span class="quote">«<span class="quote">Hey, can I pay you $600 or maybe if you were in two films, you
4209 know, $1,200?</span>»</span> And they would say, <span class="quote">«<span class="quote">Are you for real? Hey, I'd love
4210 to get $1,200.</span>»</span> And some of course were a bit difficult (estranged
4211 ex-wives, in particular). But eventually, Alben and his team had
4212 cleared the rights to this retrospective CD-ROM on Clint Eastwood's
4213 career.
4214 </p><p>
4215 It was one <span class="emphasis"><em>year</em></span> later&#8212;<span class="quote">«<span class="quote">and even then we
4216 weren't sure whether we were totally in the clear.</span>»</span>
4217 </p><p>
4218 Alben is proud of his work. The project was the first of its kind and
4219 the only time he knew of that a team had undertaken such a massive
4220 project for the purpose of releasing a retrospective.
4221 </p><div class="blockquote"><blockquote class="blockquote"><p>
4222 Everyone thought it would be too hard. Everyone just threw up their
4223 hands and said, <span class="quote">«<span class="quote">Oh, my gosh, a film, it's so many copyrights, there's
4224 the music, there's the screenplay, there's the director, there's the
4225 actors.</span>»</span> But we just broke it down. We just put it into its
4226 constituent parts and said, <span class="quote">«<span class="quote">Okay, there's this many actors, this many
4227 directors, &#8230; this many musicians,</span>»</span> and we just went at it very
4228 systematically and cleared the rights.
4229 </p></blockquote></div><p>
4230
4231
4232 And no doubt, the product itself was exceptionally good. Eastwood
4233 loved it, and it sold very well.
4234 </p><a class="indexterm" name="idp8214192"></a><p>
4235 But I pressed Alben about how weird it seems that it would have to
4236 take a year's work simply to clear rights. No doubt Alben had done
4237 this efficiently, but as Peter Drucker has famously quipped, <span class="quote">«<span class="quote">There is
4238 nothing so useless as doing efficiently that which should not be done
4239 at all.</span>»</span><a href="#ftn.idp8215792" class="footnote" name="idp8215792"><sup class="footnote">[114]</sup></a>
4240 Did it make sense, I asked Alben, that this is the way a new work
4241 has to be made?
4242 </p><p>
4243 For, as he acknowledged, <span class="quote">«<span class="quote">very few &#8230; have the time and resources,
4244 and the will to do this,</span>»</span> and thus, very few such works would ever be
4245 made. Does it make sense, I asked him, from the standpoint of what
4246 anybody really thought they were ever giving rights for originally, that
4247 you would have to go clear rights for these kinds of clips?
4248 </p><div class="blockquote"><blockquote class="blockquote"><p>
4249 I don't think so. When an actor renders a performance in a movie,
4250 he or she gets paid very well. &#8230; And then when 30 seconds of
4251 that performance is used in a new product that is a retrospective
4252 of somebody's career, I don't think that that person &#8230; should be
4253 compensated for that.
4254 </p></blockquote></div><p>
4255 Or at least, is this <span class="emphasis"><em>how</em></span> the artist should be
4256 compensated? Would it make sense, I asked, for there to be some kind
4257 of statutory license that someone could pay and be free to make
4258 derivative use of clips like this?  Did it really make sense that a
4259 follow-on creator would have to track down every artist, actor,
4260 director, musician, and get explicit permission from each? Wouldn't a
4261 lot more be created if the legal part of the creative process could be
4262 made to be more clean?
4263 </p><div class="blockquote"><blockquote class="blockquote"><p>
4264 Absolutely. I think that if there were some fair-licensing
4265 mechanism&#8212;where you weren't subject to hold-ups and you weren't
4266 subject to estranged former spouses&#8212;you'd see a lot more of this
4267 work, because it wouldn't be so daunting to try to put together a
4268
4269 retrospective of someone's career and meaningfully illustrate it with
4270 lots of media from that person's career. You'd build in a cost as the
4271 producer of one of these things. You'd build in a cost of paying X
4272 dollars to the talent that performed. But it would be a known
4273 cost. That's the thing that trips everybody up and makes this kind of
4274 product hard to get off the ground. If you knew I have a hundred
4275 minutes of film in this product and it's going to cost me X, then you
4276 build your budget around it, and you can get investments and
4277 everything else that you need to produce it. But if you say, <span class="quote">«<span class="quote">Oh, I
4278 want a hundred minutes of something and I have no idea what it's going
4279 to cost me, and a certain number of people are going to hold me up for
4280 money,</span>»</span> then it becomes difficult to put one of these things together.
4281 </p></blockquote></div><p>
4282 Alben worked for a big company. His company was backed by some of the
4283 richest investors in the world. He therefore had authority and access
4284 that the average Web designer would not have. So if it took him a
4285 year, how long would it take someone else? And how much creativity is
4286 never made just because the costs of clearing the rights are so high?
4287 </p><a class="indexterm" name="idp8224960"></a><a class="indexterm" name="idp8226128"></a><p>
4288 These costs are the burdens of a kind of regulation. Put on a
4289 Republican hat for a moment, and get angry for a bit. The government
4290 defines the scope of these rights, and the scope defined determines
4291 how much it's going to cost to negotiate them. (Remember the idea that
4292 land runs to the heavens, and imagine the pilot purchasing flythrough
4293 rights as he negotiates to fly from Los Angeles to San Francisco.)
4294 These rights might well have once made sense; but as circumstances
4295 change, they make no sense at all. Or at least, a well-trained,
4296 regulationminimizing Republican should look at the rights and ask,
4297 <span class="quote">«<span class="quote">Does this still make sense?</span>»</span>
4298 </p><a class="indexterm" name="idp8228880"></a><p>
4299 I've seen the flash of recognition when people get this point, but only
4300 a few times. The first was at a conference of federal judges in California.
4301 The judges were gathered to discuss the emerging topic of cyber-law. I
4302 was asked to be on the panel. Harvey Saferstein, a well-respected lawyer
4303
4304
4305 from an L.A. firm, introduced the panel with a video that he and a
4306 friend, Robert Fairbank, had produced.
4307 </p><p>
4308 The video was a brilliant collage of film from every period in the
4309 twentieth century, all framed around the idea of a <em class="citetitle">60 Minutes</em> episode.
4310 The execution was perfect, down to the sixty-minute stopwatch. The
4311 judges loved every minute of it.
4312 </p><a class="indexterm" name="idp8232288"></a><p>
4313 When the lights came up, I looked over to my copanelist, David
4314 Nimmer, perhaps the leading copyright scholar and practitioner in the
4315 nation. He had an astonished look on his face, as he peered across the
4316 room of over 250 well-entertained judges. Taking an ominous tone, he
4317 began his talk with a question: <span class="quote">«<span class="quote">Do you know how many federal laws
4318 were just violated in this room?</span>»</span>
4319 </p><p>
4320 <a class="indexterm" name="idp8234528"></a>
4321 <a class="indexterm" name="idp8235344"></a>
4322 <a class="indexterm" name="idp8236160"></a>
4323 <a class="indexterm" name="idp8237264"></a>
4324 <a class="indexterm" name="idp8238096"></a>
4325 For of course, the two brilliantly talented creators who made this
4326 film hadn't done what Alben did. They hadn't spent a year clearing the
4327 rights to these clips; technically, what they had done violated the
4328 law.  Of course, it wasn't as if they or anyone were going to be
4329 prosecuted for this violation (the presence of 250 judges and a gaggle
4330 of federal marshals notwithstanding). But Nimmer was making an
4331 important point: A year before anyone would have heard of the word
4332 Napster, and two years before another member of our panel, David
4333 Boies, would defend Napster before the Ninth Circuit Court of Appeals,
4334 Nimmer was trying to get the judges to see that the law would not be
4335 friendly to the capacities that this technology would
4336 enable. Technology means you can now do amazing things easily; but you
4337 couldn't easily do them legally.
4338 </p><p>
4339 We live in a <span class="quote">«<span class="quote">cut and paste</span>»</span> culture enabled by technology. Anyone
4340 building a presentation knows the extraordinary freedom that the cut
4341 and paste architecture of the Internet created&#8212;in a second you can
4342 find just about any image you want; in another second, you can have it
4343 planted in your presentation.
4344 </p><a class="indexterm" name="idp8240592"></a><p>
4345 But presentations are just a tiny beginning. Using the Internet and
4346
4347 its archives, musicians are able to string together mixes of sound
4348 never before imagined; filmmakers are able to build movies out of
4349 clips on computers around the world. An extraordinary site in Sweden
4350 takes images of politicians and blends them with music to create
4351 biting political commentary. A site called Camp Chaos has produced
4352 some of the most biting criticism of the record industry that there is
4353 through the mixing of Flash! and music.
4354 </p><p>
4355 All of these creations are technically illegal. Even if the creators
4356 wanted to be <span class="quote">«<span class="quote">legal,</span>»</span> the cost of complying with the law is impossibly
4357 high. Therefore, for the law-abiding sorts, a wealth of creativity is
4358 never made. And for that part that is made, if it doesn't follow the
4359 clearance rules, it doesn't get released.
4360 </p><p>
4361 To some, these stories suggest a solution: Let's alter the mix of
4362 rights so that people are free to build upon our culture. Free to add
4363 or mix as they see fit. We could even make this change without
4364 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>
4365 Instead, the system could simply make it easy for follow-on creators
4366 to compensate artists without requiring an army of lawyers to come
4367 along: a rule, for example, that says <span class="quote">«<span class="quote">the royalty owed the copyright
4368 owner of an unregistered work for the derivative reuse of his work
4369 will be a flat 1 percent of net revenues, to be held in escrow for the
4370 copyright owner.</span>»</span> Under this rule, the copyright owner could benefit
4371 from some royalty, but he would not have the benefit of a full
4372 property right (meaning the right to name his own price) unless he
4373 registers the work.
4374 </p><p>
4375 Who could possibly object to this? And what reason would there be
4376 for objecting? We're talking about work that is not now being made;
4377 which if made, under this plan, would produce new income for artists.
4378 What reason would anyone have to oppose it?
4379 </p><p>
4380 <span class="strong"><strong>In February 2003</strong></span>, DreamWorks
4381 studios announced an agreement with Mike Myers, the comic genius of
4382 <em class="citetitle">Saturday Night Live</em> and
4383
4384 Austin Powers. According to the announcement, Myers and Dream-Works
4385 would work together to form a <span class="quote">«<span class="quote">unique filmmaking pact.</span>»</span> Under the
4386 agreement, DreamWorks <span class="quote">«<span class="quote">will acquire the rights to existing motion
4387 picture hits and classics, write new storylines and&#8212;with the use
4388 of stateof-the-art digital technology&#8212;insert Myers and other
4389 actors into the film, thereby creating an entirely new piece of
4390 entertainment.</span>»</span>
4391 </p><p>
4392 The announcement called this <span class="quote">«<span class="quote">film sampling.</span>»</span> As Myers explained,
4393 <span class="quote">«<span class="quote">Film Sampling is an exciting way to put an original spin on existing
4394 films and allow audiences to see old movies in a new light. Rap
4395 artists have been doing this for years with music and now we are able
4396 to take that same concept and apply it to film.</span>»</span> Steven Spielberg is
4397 quoted as saying, <span class="quote">«<span class="quote">If anyone can create a way to bring old films to
4398 new audiences, it is Mike.</span>»</span>
4399 </p><p>
4400 Spielberg is right. Film sampling by Myers will be brilliant. But if
4401 you don't think about it, you might miss the truly astonishing point
4402 about this announcement. As the vast majority of our film heritage
4403 remains under copyright, the real meaning of the DreamWorks
4404 announcement is just this: It is Mike Myers and only Mike Myers who is
4405 free to sample. Any general freedom to build upon the film archive of
4406 our culture, a freedom in other contexts presumed for us all, is now a
4407 privilege reserved for the funny and famous&#8212;and presumably rich.
4408 </p><p>
4409 This privilege becomes reserved for two sorts of reasons. The first
4410 continues the story of the last chapter: the vagueness of <span class="quote">«<span class="quote">fair use.</span>»</span>
4411 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
4412 rely upon so weak a doctrine to create. That leads to the second reason
4413 that the privilege is reserved for the few: The costs of negotiating the
4414 legal rights for the creative reuse of content are astronomically high.
4415 These costs mirror the costs with fair use: You either pay a lawyer to
4416 defend your fair use rights or pay a lawyer to track down permissions
4417 so you don't have to rely upon fair use rights. Either way, the creative
4418 process is a process of paying lawyers&#8212;again a privilege, or perhaps a
4419 curse, reserved for the few.
4420 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8198416" class="footnote"><p><a href="#idp8198416" class="para"><sup class="para">[113] </sup></a>
4421
4422 Technically, the rights that Alben had to clear were mainly those of
4423 publicity&#8212;rights an artist has to control the commercial
4424 exploitation of his image.  But these rights, too, burden <span class="quote">«<span class="quote">Rip, Mix,
4425 Burn</span>»</span> creativity, as this chapter evinces.
4426 <a class="indexterm" name="idp8200016"></a>
4427 <a class="indexterm" name="idp8201136"></a>
4428 </p></div><div id="ftn.idp8215792" class="footnote"><p><a href="#idp8215792" class="para"><sup class="para">[114] </sup></a>
4429
4430 U.S. Department of Commerce Office of Acquisition Management, <em class="citetitle">Seven
4431 Steps to Performance-Based Services Acquisition</em>, available at
4432 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #22</a>.
4433 </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="idp8259232"></a><p>
4434 <span class="strong"><strong>In April 1996</strong></span>, millions of
4435 <span class="quote">«<span class="quote">bots</span>»</span>&#8212;computer codes designed to
4436 <span class="quote">«<span class="quote">spider,</span>»</span> or automatically search the Internet and copy
4437 content&#8212;began running across the Net. Page by page, these bots
4438 copied Internet-based information onto a small set of computers
4439 located in a basement in San Francisco's Presidio. Once the bots
4440 finished the whole of the Internet, they started again. Over and over
4441 again, once every two months, these bits of code took copies of the
4442 Internet and stored them.
4443 </p><a class="indexterm" name="idp8262544"></a><p>
4444 By October 2001, the bots had collected more than five years of
4445 copies. And at a small announcement in Berkeley, California, the
4446 archive that these copies created, the Internet Archive, was opened to
4447 the world. Using a technology called <span class="quote">«<span class="quote">the Way Back Machine,</span>»</span> you could
4448 enter a Web page, and see all of its copies going back to 1996, as
4449 well as when those pages changed.
4450 </p><a class="indexterm" name="idxorwellgeorge"></a><p>
4451 This is the thing about the Internet that Orwell would have
4452 appreciated.  In the dystopia described in <em class="citetitle">1984</em>, old newspapers were
4453 constantly updated to assure that the current view of the world,
4454 approved of by the government, was not contradicted by previous news
4455 reports.
4456 </p><p>
4457
4458 Thousands of workers constantly reedited the past, meaning there was
4459 no way ever to know whether the story you were reading today was the
4460 story that was printed on the date published on the paper.
4461 </p><p>
4462 It's the same with the Internet. If you go to a Web page today,
4463 there's no way for you to know whether the content you are reading is
4464 the same as the content you read before. The page may seem the same,
4465 but the content could easily be different. The Internet is Orwell's
4466 library&#8212;constantly updated, without any reliable memory.
4467 </p><a class="indexterm" name="idp8268256"></a><a class="indexterm" name="idp8270064"></a><p>
4468 Until the Way Back Machine, at least. With the Way Back Machine, and
4469 the Internet Archive underlying it, you can see what the Internet
4470 was. You have the power to see what you remember. More importantly,
4471 perhaps, you also have the power to find what you don't remember and
4472 what others might prefer you forget.<a href="#ftn.idp8271456" class="footnote" name="idp8271456"><sup class="footnote">[115]</sup></a>
4473 </p><a class="indexterm" name="idp8275200"></a><p>
4474 <span class="strong"><strong>We take it</strong></span> for granted that we can
4475 go back to see what we remember reading. Think about newspapers. If
4476 you wanted to study the reaction of your hometown newspaper to the
4477 race riots in Watts in 1965, or to Bull Connor's water cannon in 1963,
4478 you could go to your public library and look at the newspapers. Those
4479 papers probably exist on microfiche. If you're lucky, they exist in
4480 paper, too. Either way, you are free, using a library, to go back and
4481 remember&#8212;not just what it is convenient to remember, but
4482 remember something close to the truth.
4483 </p><p>
4484 It is said that those who fail to remember history are doomed to
4485 repeat it. That's not quite correct. We <span class="emphasis"><em>all</em></span>
4486 forget history. The key is whether we have a way to go back to
4487 rediscover what we forget. More directly, the key is whether an
4488 objective past can keep us honest. Libraries help do that, by
4489 collecting content and keeping it, for schoolchildren, for
4490 researchers, for grandma. A free society presumes this knowedge.
4491 </p><p>
4492 The Internet was an exception to this presumption. Until the Internet
4493 Archive, there was no way to go back. The Internet was the
4494 quintessentially transitory medium. And yet, as it becomes more
4495 important in forming and reforming society, it becomes more and more
4496
4497 important to maintain in some historical form. It's just bizarre to
4498 think that we have scads of archives of newspapers from tiny towns
4499 around the world, yet there is but one copy of the Internet&#8212;the
4500 one kept by the Internet Archive.
4501 </p><p>
4502 Brewster Kahle is the founder of the Internet Archive. He was a very
4503 successful Internet entrepreneur after he was a successful computer
4504 researcher.  In the 1990s, Kahle decided he had had enough business
4505 success.  It was time to become a different kind of success. So he
4506 launched a series of projects designed to archive human knowledge. The
4507 Internet Archive was just the first of the projects of this Andrew
4508 Carnegie of the Internet. By December of 2002, the archive had over 10
4509 billion pages, and it was growing at about a billion pages a month.
4510 </p><a class="indexterm" name="idp8281744"></a><a class="indexterm" name="idp8282496"></a><a class="indexterm" name="idp8283248"></a><a class="indexterm" name="idp8284064"></a><a class="indexterm" name="idp8284880"></a><a class="indexterm" name="idxnewscoverage2"></a><p>
4511 The Way Back Machine is the largest archive of human knowledge in
4512 human history. At the end of 2002, it held <span class="quote">«<span class="quote">two hundred and thirty
4513 terabytes of material</span>»</span>&#8212;and was <span class="quote">«<span class="quote">ten times larger than the
4514 Library of Congress.</span>»</span> And this was just the first of the archives that
4515 Kahle set out to build. In addition to the Internet Archive, Kahle has
4516 been constructing the Television Archive. Television, it turns out, is
4517 even more ephemeral than the Internet. While much of twentieth-century
4518 culture was constructed through television, only a tiny proportion of
4519 that culture is available for anyone to see today. Three hours of news
4520 are recorded each evening by Vanderbilt University&#8212;thanks to a
4521 specific exemption in the copyright law. That content is indexed, and
4522 is available to scholars for a very low fee. <span class="quote">«<span class="quote">But other than that,
4523 [television] is almost unavailable,</span>»</span> Kahle told me. <span class="quote">«<span class="quote">If you were
4524 Barbara Walters you could get access to [the archives], but if you are
4525 just a graduate student?</span>»</span> As Kahle put it,
4526 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idp8290896"></a><a class="indexterm" name="idp8291712"></a><p>
4527 Do you remember when Dan Quayle was interacting with Murphy Brown?
4528 Remember that back and forth surreal experience of a politician
4529 interacting with a fictional television character? If you were a
4530 graduate student wanting to study that, and you wanted to get those
4531 original back and forth exchanges between the two, the
4532
4533
4534 <em class="citetitle">60 Minutes</em> episode that came out after it &#8230; it would be almost
4535 impossible. &#8230; Those materials are almost unfindable. &#8230;
4536 </p></blockquote></div><a class="indexterm" name="idp8294288"></a><p>
4537 Why is that? Why is it that the part of our culture that is recorded
4538 in newspapers remains perpetually accessible, while the part that is
4539 recorded on videotape is not? How is it that we've created a world
4540 where researchers trying to understand the effect of media on
4541 nineteenthcentury America will have an easier time than researchers
4542 trying to understand the effect of media on twentieth-century America?
4543 </p><p>
4544 In part, this is because of the law. Early in American copyright law,
4545 copyright owners were required to deposit copies of their work in
4546 libraries.  These copies were intended both to facilitate the spread
4547 of knowledge and to assure that a copy of the work would be around
4548 once the copyright expired, so that others might access and copy the
4549 work.
4550 </p><a class="indexterm" name="idp8296912"></a><a class="indexterm" name="idp8297728"></a><p>
4551 These rules applied to film as well. But in 1915, the Library
4552 of Congress made an exception for film. Film could be copyrighted so
4553 long as such deposits were made. But the filmmaker was then allowed to
4554 borrow back the deposits&#8212;for an unlimited time at no cost. In
4555 1915 alone, there were more than 5,475 films deposited and <span class="quote">«<span class="quote">borrowed
4556 back.</span>»</span>  Thus, when the copyrights to films expire, there is no copy
4557 held by any library. The copy exists&#8212;if it exists at
4558 all&#8212;in the library archive of the film company.<a href="#ftn.idp8299952" class="footnote" name="idp8299952"><sup class="footnote">[116]</sup></a>
4559 </p><p>
4560 The same is generally true about television. Television broadcasts
4561 were originally not copyrighted&#8212;there was no way to capture the
4562 broadcasts, so there was no fear of <span class="quote">«<span class="quote">theft.</span>»</span> But as technology enabled
4563 capturing, broadcasters relied increasingly upon the law. The law
4564 required they make a copy of each broadcast for the work to be
4565 <span class="quote">«<span class="quote">copyrighted.</span>»</span>  But those copies were simply kept by the
4566 broadcasters. No library had any right to them; the government didn't
4567 demand them.  The content of this part of American culture is
4568 practically invisible to anyone who would look.
4569 </p><a class="indexterm" name="idp8304448"></a><p>
4570 Kahle was eager to correct this. Before September 11, 2001, he and
4571
4572 his allies had started capturing television. They selected twenty
4573 stations from around the world and hit the Record button. After
4574 September 11, Kahle, working with dozens of others, selected twenty
4575 stations from around the world and, beginning October 11, 2001, made
4576 their coverage during the week of September 11 available free on-line.
4577 Anyone could see how news reports from around the world covered the
4578 events of that day.
4579 </p><a class="indexterm" name="idp8306416"></a><a class="indexterm" name="idp8307200"></a><a class="indexterm" name="idp8308304"></a><a class="indexterm" name="idp8309504"></a><a class="indexterm" name="idp8310608"></a><a class="indexterm" name="idp8311424"></a><a class="indexterm" name="idp8312240"></a><a class="indexterm" name="idp8313056"></a><p>
4580 Kahle had the same idea with film. Working with Rick Prelinger, whose
4581 archive of film includes close to 45,000 <span class="quote">«<span class="quote">ephemeral films</span>»</span> (meaning
4582 films other than Hollywood movies, films that were never copyrighted),
4583 Kahle established the Movie Archive. Prelinger let Kahle digitize
4584 1,300 films in this archive and post those films on the Internet to be
4585 downloaded for free. Prelinger's is a for-profit company. It sells
4586 copies of these films as stock footage. What he has discovered is that
4587 after he made a significant chunk available for free, his stock
4588 footage sales went up dramatically. People could easily find the
4589 material they wanted to use. Some downloaded that material and made
4590 films on their own. Others purchased copies to enable other films to
4591 be made.  Either way, the archive enabled access to this important
4592 part of our culture.  Want to see a copy of the <span class="quote">«<span class="quote">Duck and Cover</span>»</span> film
4593 that instructed children how to save themselves in the middle of
4594 nuclear attack? Go to archive.org, and you can download the film in a
4595 few minutes&#8212;for free.
4596 </p><p>
4597 Here again, Kahle is providing access to a part of our culture that we
4598 otherwise could not get easily, if at all. It is yet another part of
4599 what defines the twentieth century that we have lost to history. The
4600 law doesn't require these copies to be kept by anyone, or to be
4601 deposited in an archive by anyone. Therefore, there is no simple way
4602 to find them.
4603 </p><p>
4604 The key here is access, not price. Kahle wants to enable free access
4605 to this content, but he also wants to enable others to sell access to
4606 it. His aim is to ensure competition in access to this important part
4607 of our culture.  Not during the commercial life of a bit of creative
4608 property, but during a second life that all creative property
4609 has&#8212;a noncommercial life.
4610 </p><p>
4611 For here is an idea that we should more clearly recognize. Every bit
4612 of creative property goes through different <span class="quote">«<span class="quote">lives.</span>»</span> In its first
4613 life, if the
4614
4615
4616 creator is lucky, the content is sold. In such cases the commercial
4617 market is successful for the creator. The vast majority of creative
4618 property doesn't enjoy such success, but some clearly does. For that
4619 content, commercial life is extremely important. Without this
4620 commercial market, there would be, many argue, much less creativity.
4621 </p><p>
4622 After the commercial life of creative property has ended, our
4623 tradition has always supported a second life as well. A newspaper
4624 delivers the news every day to the doorsteps of America. The very next
4625 day, it is used to wrap fish or to fill boxes with fragile gifts or to
4626 build an archive of knowledge about our history. In this second life,
4627 the content can continue to inform even if that information is no
4628 longer sold.
4629 </p><a class="indexterm" name="idp8320128"></a><p>
4630 The same has always been true about books. A book goes out of print
4631 very quickly (the average today is after about a year<a href="#ftn.idp8321600" class="footnote" name="idp8321600"><sup class="footnote">[117]</sup></a>). After
4632 it is out of print, it can be sold in used book stores without the
4633 copyright owner getting anything and stored in libraries, where many
4634 get to read the book, also for free. Used book stores and libraries
4635 are thus the second life of a book. That second life is extremely
4636 important to the spread and stability of culture.
4637 </p><p>
4638 Yet increasingly, any assumption about a stable second life for
4639 creative property does not hold true with the most important
4640 components of popular culture in the twentieth and twenty-first
4641 centuries. For these&#8212;television, movies, music, radio, the
4642 Internet&#8212;there is no guarantee of a second life. For these sorts
4643 of culture, it is as if we've replaced libraries with Barnes &amp;
4644 Noble superstores. With this culture, what's accessible is nothing but
4645 what a certain limited market demands.  Beyond that, culture
4646 disappears.
4647 </p><p>
4648 <span class="strong"><strong>For most of</strong></span> the twentieth century,
4649 it was economics that made this so. It would have been insanely
4650 expensive to collect and make accessible all television and film and
4651 music: The cost of analog copies is extraordinarily high. So even
4652 though the law in principle would have restricted the ability of a
4653 Brewster Kahle to copy culture generally, the
4654
4655 real restriction was economics. The market made it impossibly
4656 difficult to do anything about this ephemeral culture; the law had
4657 little practical effect.
4658 </p><p>
4659 Perhaps the single most important feature of the digital revolution is
4660 that for the first time since the Library of Alexandria, it is
4661 feasible to imagine constructing archives that hold all culture
4662 produced or distributed publicly. Technology makes it possible to
4663 imagine an archive of all books published, and increasingly makes it
4664 possible to imagine an archive of all moving images and sound.
4665 </p><p>
4666 The scale of this potential archive is something we've never imagined
4667 before. The Brewster Kahles of our history have dreamed about it; but
4668 we are for the first time at a point where that dream is possible. As
4669 Kahle describes,
4670 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idp8330816"></a><p>
4671 It looks like there's about two to three million recordings of music.
4672 Ever. There are about a hundred thousand theatrical releases of
4673 movies, &#8230; and about one to two million movies [distributed] during
4674 the twentieth century. There are about twenty-six million different
4675 titles of books. All of these would fit on computers that would fit in
4676 this room and be able to be afforded by a small company.  So we're at
4677 a turning point in our history. Universal access is the goal. And the
4678 opportunity of leading a different life, based on this, is
4679 &#8230; thrilling. It could be one of the things humankind would be most
4680 proud of. Up there with the Library of Alexandria, putting a man on
4681 the moon, and the invention of the printing press.
4682 </p></blockquote></div><a class="indexterm" name="idp8333216"></a><p>
4683 Kahle is not the only librarian. The Internet Archive is not the only
4684 archive. But Kahle and the Internet Archive suggest what the future of
4685 libraries or archives could be. <span class="emphasis"><em>When</em></span> the
4686 commercial life of creative property ends, I don't know. But it
4687 does. And whenever it does, Kahle and his archive hint at a world
4688 where this knowledge, and culture, remains perpetually available. Some
4689 will draw upon it to understand it;
4690
4691 some to criticize it. Some will use it, as Walt Disney did, to
4692 re-create the past for the future. These technologies promise
4693 something that had become unimaginable for much of our past&#8212;a
4694 future <span class="emphasis"><em>for</em></span> our past. The technology of digital
4695 arts could make the dream of the Library of Alexandria real again.
4696 </p><p>
4697 Technologists have thus removed the economic costs of building such an
4698 archive. But lawyers' costs remain. For as much as we might like to
4699 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,
4700 the <span class="quote">«<span class="quote">content</span>»</span> that is collected in these digital spaces is also
4701 someone's <span class="quote">«<span class="quote">property.</span>»</span> And the law of property restricts the freedoms
4702 that Kahle and others would exercise.
4703 </p><a class="indexterm" name="idp8338736"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8271456" class="footnote"><p><a href="#idp8271456" class="para"><sup class="para">[115] </sup></a>
4704
4705 <a class="indexterm" name="idp8272192"></a>
4706 <a class="indexterm" name="idp8272976"></a>
4707 The temptations remain, however. Brewster Kahle reports that the White
4708 House changes its own press releases without notice. A May 13, 2003,
4709 press release stated, <span class="quote">«<span class="quote">Combat Operations in Iraq Have Ended.</span>»</span> That was
4710 later changed, without notice, to <span class="quote">«<span class="quote">Major Combat Operations in Iraq
4711 Have Ended.</span>»</span>  E-mail from Brewster Kahle, 1 December 2003.
4712 </p></div><div id="ftn.idp8299952" class="footnote"><p><a href="#idp8299952" class="para"><sup class="para">[116] </sup></a>
4713
4714 Doug Herrick, <span class="quote">«<span class="quote">Toward a National Film Collection: Motion Pictures at
4715 the Library of Congress,</span>»</span> <em class="citetitle">Film Library Quarterly</em> 13 nos. 2&#8211;3
4716 (1980): 5; Anthony Slide, <em class="citetitle">Nitrate Won't Wait: A History of Film
4717 Preservation in the United States</em> (Jefferson, N.C.: McFarland &amp;
4718 Co., 1992), 36.
4719 </p></div><div id="ftn.idp8321600" class="footnote"><p><a href="#idp8321600" class="para"><sup class="para">[117] </sup></a>
4720
4721 <a class="indexterm" name="idp8322336"></a>
4722 Dave Barns, <span class="quote">«<span class="quote">Fledgling Career in Antique Books: Woodstock Landlord,
4723 Bar Owner Starts a New Chapter by Adopting Business,</span>»</span> <em class="citetitle">Chicago Tribune</em>,
4724 5 September 1997, at Metro Lake 1L. Of books published between 1927
4725 and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese,
4726 <span class="quote">«<span class="quote">The First Sale Doctrine in the Era of Digital Networks,</span>»</span> <em class="citetitle">Boston
4727 College Law Review</em> 44 (2003): 593 n. 51.
4728 </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="idp8342096"></a><a class="indexterm" name="idp8342912"></a><p>
4729 <span class="strong"><strong>Jack Valenti</strong></span> has been the president
4730 of the Motion Picture Association of America since 1966. He first came
4731 to Washington, D.C., with Lyndon Johnson's
4732 administration&#8212;literally. The famous picture of Johnson's
4733 swearing-in on Air Force One after the assassination of President
4734 Kennedy has Valenti in the background. In his almost forty years of
4735 running the MPAA, Valenti has established himself as perhaps the most
4736 prominent and effective lobbyist in Washington.
4737 </p><a class="indexterm" name="idp8344672"></a><a class="indexterm" name="idp8346096"></a><a class="indexterm" name="idp8346928"></a><a class="indexterm" name="idp8347760"></a><a class="indexterm" name="idp8348576"></a><a class="indexterm" name="idp8349392"></a><a class="indexterm" name="idp8350208"></a><p>
4738 The MPAA is the American branch of the international Motion Picture
4739 Association. It was formed in 1922 as a trade association whose goal
4740 was to defend American movies against increasing domestic criticism.
4741 The organization now represents not only filmmakers but producers and
4742 distributors of entertainment for television, video, and cable. Its
4743 board is made up of the chairmen and presidents of the seven major
4744 producers and distributors of motion picture and television programs
4745 in the United States: Walt Disney, Sony Pictures Entertainment, MGM,
4746 Paramount Pictures, Twentieth Century Fox, Universal Studios, and
4747 Warner Brothers.
4748 </p><p>
4749
4750 Valenti is only the third president of the MPAA. No president before
4751 him has had as much influence over that organization, or over
4752 Washington. As a Texan, Valenti has mastered the single most important
4753 political skill of a Southerner&#8212;the ability to appear simple and
4754 slow while hiding a lightning-fast intellect. To this day, Valenti
4755 plays the simple, humble man. But this Harvard MBA, and author of four
4756 books, who finished high school at the age of fifteen and flew more
4757 than fifty combat missions in World War II, is no Mr. Smith. When
4758 Valenti went to Washington, he mastered the city in a quintessentially
4759 Washingtonian way.
4760 </p><p>
4761 In defending artistic liberty and the freedom of speech that our
4762 culture depends upon, the MPAA has done important good. In crafting
4763 the MPAA rating system, it has probably avoided a great deal of
4764 speech-regulating harm. But there is an aspect to the organization's
4765 mission that is both the most radical and the most important. This is
4766 the organization's effort, epitomized in Valenti's every act, to
4767 redefine the meaning of <span class="quote">«<span class="quote">creative property.</span>»</span>
4768 </p><p>
4769 In 1982, Valenti's testimony to Congress captured the strategy
4770 perfectly:
4771 </p><div class="blockquote"><blockquote class="blockquote"><p>
4772 No matter the lengthy arguments made, no matter the charges and the
4773 counter-charges, no matter the tumult and the shouting, reasonable men
4774 and women will keep returning to the fundamental issue, the central
4775 theme which animates this entire debate: <span class="emphasis"><em>Creative property
4776 owners must be accorded the same rights and protection resident in all
4777 other property owners in the nation</em></span>. That is the issue.
4778 That is the question. And that is the rostrum on which this entire
4779 hearing and the debates to follow must rest.<a href="#ftn.idp8356608" class="footnote" name="idp8356608"><sup class="footnote">[118]</sup></a>
4780 </p></blockquote></div><p>
4781 The strategy of this rhetoric, like the strategy of most of Valenti's
4782 rhetoric, is brilliant and simple and brilliant because simple. The
4783 <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
4784 this:
4785
4786 <span class="quote">«<span class="quote">Creative property owners must be accorded the same rights and
4787 protections resident in all other property owners in the nation.</span>»</span>
4788 There are no second-class citizens, Valenti might have
4789 continued. There should be no second-class property owners.
4790 </p><p>
4791 This claim has an obvious and powerful intuitive pull. It is stated
4792 with such clarity as to make the idea as obvious as the notion that we
4793 use elections to pick presidents. But in fact, there is no more
4794 extreme a claim made by <span class="emphasis"><em>anyone</em></span> who is serious in
4795 this debate than this claim of Valenti's. Jack Valenti, however sweet
4796 and however brilliant, is perhaps the nation's foremost extremist when
4797 it comes to the nature and scope of <span class="quote">«<span class="quote">creative property.</span>»</span> His views
4798 have <span class="emphasis"><em>no</em></span> reasonable connection to our actual legal
4799 tradition, even if the subtle pull of his Texan charm has slowly
4800 redefined that tradition, at least in Washington.
4801 </p><p>
4802 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
4803 precise sense that lawyers are trained to understand,<a href="#ftn.idp8363936" class="footnote" name="idp8363936"><sup class="footnote">[119]</sup></a> it has never been the case, nor should it be, that
4804 <span class="quote">«<span class="quote">creative property owners</span>»</span> have been <span class="quote">«<span class="quote">accorded the same rights and
4805 protection resident in all other property owners.</span>»</span> Indeed, if creative
4806 property owners were given the same rights as all other property
4807 owners, that would effect a radical, and radically undesirable, change
4808 in our tradition.
4809 </p><p>
4810 Valenti knows this. But he speaks for an industry that cares squat for
4811 our tradition and the values it represents. He speaks for an industry
4812 that is instead fighting to restore the tradition that the British
4813 overturned in 1710. In the world that Valenti's changes would create,
4814 a powerful few would exercise powerful control over how our creative
4815 culture would develop.
4816 </p><p>
4817 I have two purposes in this chapter. The first is to convince you
4818 that, historically, Valenti's claim is absolutely wrong. The second is
4819 to convince you that it would be terribly wrong for us to reject our
4820 history.  We have always treated rights in creative property
4821 differently from the rights resident in all other property
4822 owners. They have never been the same. And they should never be the
4823 same, because, however counterintuitive this may seem, to make them
4824 the same would be to
4825
4826
4827 fundamentally weaken the opportunity for new creators to create.
4828 Creativity depends upon the owners of creativity having less than
4829 perfect control.
4830 </p><p>
4831 Organizations such as the MPAA, whose board includes the most powerful
4832 of the old guard, have little interest, their rhetoric
4833 notwithstanding, in assuring that the new can displace them. No
4834 organization does. No person does. (Ask me about tenure, for example.)
4835 But what's good for the MPAA is not necessarily good for America. A
4836 society that defends the ideals of free culture must preserve
4837 precisely the opportunity for new creativity to threaten the old.
4838 </p><p>
4839 <span class="strong"><strong>To get</strong></span> just a hint that there is
4840 something fundamentally wrong in Valenti's argument, we need look no
4841 further than the United States Constitution itself.
4842 </p><p>
4843 The framers of our Constitution loved <span class="quote">«<span class="quote">property.</span>»</span> Indeed, so strongly
4844 did they love property that they built into the Constitution an
4845 important requirement. If the government takes your property&#8212;if
4846 it condemns your house, or acquires a slice of land from your
4847 farm&#8212;it is required, under the Fifth Amendment's <span class="quote">«<span class="quote">Takings
4848 Clause,</span>»</span> to pay you <span class="quote">«<span class="quote">just compensation</span>»</span> for that taking. The
4849 Constitution thus guarantees that property is, in a certain sense,
4850 sacred. It cannot <span class="emphasis"><em>ever</em></span> be taken from the property
4851 owner unless the government pays for the privilege.
4852 </p><p>
4853 Yet the very same Constitution speaks very differently about what
4854 Valenti calls <span class="quote">«<span class="quote">creative property.</span>»</span> In the clause granting Congress the
4855 power to create <span class="quote">«<span class="quote">creative property,</span>»</span> the Constitution
4856 <span class="emphasis"><em>requires</em></span> that after a <span class="quote">«<span class="quote">limited time,</span>»</span> Congress
4857 take back the rights that it has granted and set the <span class="quote">«<span class="quote">creative
4858 property</span>»</span> free to the public domain. Yet when Congress does this, when
4859 the expiration of a copyright term <span class="quote">«<span class="quote">takes</span>»</span> your copyright and turns it
4860 over to the public domain, Congress does not have any obligation to
4861 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
4862 Constitution that requires compensation for your land
4863
4864 requires that you lose your <span class="quote">«<span class="quote">creative property</span>»</span> right without any
4865 compensation at all.
4866 </p><p>
4867 The Constitution thus on its face states that these two forms of
4868 property are not to be accorded the same rights. They are plainly to
4869 be treated differently. Valenti is therefore not just asking for a
4870 change in our tradition when he argues that creative-property owners
4871 should be accorded the same rights as every other property-right
4872 owner. He is effectively arguing for a change in our Constitution
4873 itself.
4874 </p><a class="indexterm" name="idxjeffersonthomas"></a><p>
4875 Arguing for a change in our Constitution is not necessarily wrong.
4876 There was much in our original Constitution that was plainly wrong.
4877 The Constitution of 1789 entrenched slavery; it left senators to be
4878 appointed rather than elected; it made it possible for the electoral
4879 college to produce a tie between the president and his own vice
4880 president (as it did in 1800). The framers were no doubt
4881 extraordinary, but I would be the first to admit that they made big
4882 mistakes. We have since rejected some of those mistakes; no doubt
4883 there could be others that we should reject as well. So my argument is
4884 not simply that because Jefferson did it, we should, too.
4885 </p><p>
4886 Instead, my argument is that because Jefferson did it, we should at
4887 least try to understand <span class="emphasis"><em>why</em></span>. Why did the framers,
4888 fanatical property types that they were, reject the claim that
4889 creative property be given the same rights as all other property? Why
4890 did they require that for creative property there must be a public
4891 domain?
4892 </p><a class="indexterm" name="idp8385168"></a><p>
4893 To answer this question, we need to get some perspective on the
4894 history of these <span class="quote">«<span class="quote">creative property</span>»</span> rights, and the control that they
4895 enabled.  Once we see clearly how differently these rights have been
4896 defined, we will be in a better position to ask the question that
4897 should be at the core of this war: Not <span class="emphasis"><em>whether</em></span>
4898 creative property should be protected, but how. Not
4899 <span class="emphasis"><em>whether</em></span> we will enforce the rights the law gives
4900 to creative-property owners, but what the particular mix of rights
4901 ought to be. Not <span class="emphasis"><em>whether</em></span> artists should be paid,
4902 but whether institutions designed to assure that artists get paid need
4903 also control how culture develops.
4904 </p><a class="indexterm" name="idxfreeculturefourmodalitiesofconstrainton"></a><a class="indexterm" name="idxregulationfourmodalitiesof"></a><a class="indexterm" name="idxcopyrightlawasexpostregulationmodality"></a><a class="indexterm" name="idxlawasconstraintmodality"></a><p>
4905
4906
4907 To answer these questions, we need a more general way to talk about
4908 how property is protected. More precisely, we need a more general way
4909 than the narrow language of the law allows. In <em class="citetitle">Code and Other Laws of
4910 Cyberspace</em>, I used a simple model to capture this more general
4911 perspective. For any particular right or regulation, this model asks
4912 how four different modalities of regulation interact to support or
4913 weaken the right or regulation. I represented it with this diagram:
4914 </p><div class="figure"><a name="fig-1331"></a><p class="title"><b>Figure 10.1. How four different modalities of regulation interact to support or weaken the right or regulation.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1331.svg" align="middle" width="100%" alt="How four different modalities of regulation interact to support or weaken the right or regulation."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8400976"></a><p>
4915 At the center of this picture is a regulated dot: the individual or
4916 group that is the target of regulation, or the holder of a right. (In
4917 each case throughout, we can describe this either as regulation or as
4918 a right.  For simplicity's sake, I will speak only of regulations.)
4919 The ovals represent four ways in which the individual or group might
4920 be regulated&#8212; either constrained or, alternatively, enabled. Law
4921 is the most obvious constraint (to lawyers, at least). It constrains
4922 by threatening punishments after the fact if the rules set in advance
4923 are violated. So if, for example, you willfully infringe Madonna's
4924 copyright by copying a song from her latest CD and posting it on the
4925 Web, you can be punished
4926
4927 with a $150,000 fine. The fine is an ex post punishment for violating
4928 an ex ante rule. It is imposed by the state.
4929 <a class="indexterm" name="idp8403312"></a>
4930 </p><a class="indexterm" name="idp8404192"></a><p>
4931 Norms are a different kind of constraint. They, too, punish an
4932 individual for violating a rule. But the punishment of a norm is
4933 imposed by a community, not (or not only) by the state. There may be
4934 no law against spitting, but that doesn't mean you won't be punished
4935 if you spit on the ground while standing in line at a movie. The
4936 punishment might not be harsh, though depending upon the community, it
4937 could easily be more harsh than many of the punishments imposed by the
4938 state. The mark of the difference is not the severity of the rule, but
4939 the source of the enforcement.
4940 </p><a class="indexterm" name="idxmarketconstraints"></a><p>
4941 The market is a third type of constraint. Its constraint is effected
4942 through conditions: You can do X if you pay Y; you'll be paid M if you
4943 do N. These constraints are obviously not independent of law or
4944 norms&#8212;it is property law that defines what must be bought if it
4945 is to be taken legally; it is norms that say what is appropriately
4946 sold. But given a set of norms, and a background of property and
4947 contract law, the market imposes a simultaneous constraint upon how an
4948 individual or group might behave.
4949 </p><a class="indexterm" name="idp8407680"></a><p>
4950 Finally, and for the moment, perhaps, most mysteriously,
4951 <span class="quote">«<span class="quote">architecture</span>»</span>&#8212;the physical world as one finds it&#8212;is a
4952 constraint on behavior.  A fallen bridge might constrain your ability
4953 to get across a river. Railroad tracks might constrain the ability of
4954 a community to integrate its social life. As with the market,
4955 architecture does not effect its constraint through ex post
4956 punishments. Instead, also as with the market, architecture effects
4957 its constraint through simultaneous conditions. These conditions are
4958 imposed not by courts enforcing contracts, or by police punishing
4959 theft, but by nature, by <span class="quote">«<span class="quote">architecture.</span>»</span>  If a 500-pound boulder
4960 blocks your way, it is the law of gravity that enforces this
4961 constraint. If a $500 airplane ticket stands between you and a flight
4962 to New York, it is the market that enforces this constraint.
4963 </p><a class="indexterm" name="idp8411312"></a><a class="indexterm" name="idp8412640"></a><a class="indexterm" name="idp8413968"></a><a class="indexterm" name="idxlawasconstraintmodality2"></a><p>
4964
4965
4966 So the first point about these four modalities of regulation is
4967 obvious: They interact. Restrictions imposed by one might be
4968 reinforced by another. Or restrictions imposed by one might be
4969 undermined by another.
4970 </p><p>
4971 The second point follows directly: If we want to understand the
4972 effective freedom that anyone has at a given moment to do any
4973 particular thing, we have to consider how these four modalities
4974 interact.  Whether or not there are other constraints (there may well
4975 be; my claim is not about comprehensiveness), these four are among the
4976 most significant, and any regulator (whether controlling or freeing)
4977 must consider how these four in particular interact.
4978 </p><a class="indexterm" name="idp8418880"></a><a class="indexterm" name="idp8419696"></a><a class="indexterm" name="idp8420512"></a><a class="indexterm" name="idxdrivingspeedconstraintson"></a><a class="indexterm" name="idxspeedingconstraintson"></a><p>
4979 So, for example, consider the <span class="quote">«<span class="quote">freedom</span>»</span> to drive a car at a high
4980 speed. That freedom is in part restricted by laws: speed limits that
4981 say how fast you can drive in particular places at particular
4982 times. It is in part restricted by architecture: speed bumps, for
4983 example, slow most rational drivers; governors in buses, as another
4984 example, set the maximum rate at which the driver can drive. The
4985 freedom is in part restricted by the market: Fuel efficiency drops as
4986 speed increases, thus the price of gasoline indirectly constrains
4987 speed. And finally, the norms of a community may or may not constrain
4988 the freedom to speed. Drive at 50 mph by a school in your own
4989 neighborhood and you're likely to be punished by the neighbors. The
4990 same norm wouldn't be as effective in a different town, or at night.
4991 </p><p>
4992 The final point about this simple model should also be fairly clear:
4993 While these four modalities are analytically independent, law has a
4994 special role in affecting the three.<a href="#ftn.idp8426496" class="footnote" name="idp8426496"><sup class="footnote">[120]</sup></a>
4995 The law, in other words, sometimes operates to increase or decrease
4996 the constraint of a particular modality.  Thus, the law might be used
4997 to increase taxes on gasoline, so as to increase the incentives to
4998 drive more slowly. The law might be used to mandate more speed bumps,
4999 so as to increase the difficulty of driving rapidly. The law might be
5000 used to fund ads that stigmatize reckless driving. Or the law might be
5001 used to require that other laws be more
5002
5003 strict&#8212;a federal requirement that states decrease the speed
5004 limit, for example&#8212;so as to decrease the attractiveness of fast
5005 driving.
5006 </p><a class="indexterm" name="idp8430192"></a><a class="indexterm" name="idp8431456"></a><div class="figure"><a name="fig-1361"></a><p class="title"><b>Figure 10.2. Law has a special role in affecting the three.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1361.svg" align="middle" width="100%" alt="Law has a special role in affecting the three."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8435312"></a><p>
5007 These constraints can thus change, and they can be changed. To
5008 understand the effective protection of liberty or protection of
5009 property at any particular moment, we must track these changes over
5010 time. A restriction imposed by one modality might be erased by
5011 another. A freedom enabled by one modality might be displaced by
5012 another.<a href="#ftn.idp8436768" class="footnote" name="idp8436768"><sup class="footnote">[121]</sup></a>
5013 </p><a class="indexterm" name="idp8445568"></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>
5014 The most obvious point that this model reveals is just why, or just
5015 how, Hollywood is right. The copyright warriors have rallied Congress
5016 and the courts to defend copyright. This model helps us see why that
5017 rallying makes sense.
5018 </p><p>
5019 Let's say this is the picture of copyright's regulation before the
5020 Internet:
5021 </p><div class="figure"><a name="fig-1371"></a><p class="title"><b>Figure 10.3. Copyright's regulation before the Internet.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1331.svg" align="middle" width="100%" alt="Copyright's regulation before the Internet."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idxarchitectureconstrainteffectedthrough"></a><a class="indexterm" name="idp8455136"></a><a class="indexterm" name="idxnormsregulatoryinfluenceof2"></a><p>
5022
5023 There is balance between law, norms, market, and architecture. The law
5024 limits the ability to copy and share content, by imposing penalties on
5025 those who copy and share content. Those penalties are reinforced by
5026 technologies that make it hard to copy and share content
5027 (architecture) and expensive to copy and share content
5028 (market). Finally, those penalties are mitigated by norms we all
5029 recognize&#8212;kids, for example, taping other kids' records. These
5030 uses of copyrighted material may well be infringement, but the norms
5031 of our society (before the Internet, at least) had no problem with
5032 this form of infringement.
5033 </p><a class="indexterm" name="idxinternetcopyrightregulatorybalancelostwith"></a><a class="indexterm" name="idp8461072"></a><a class="indexterm" name="idp8462208"></a><a class="indexterm" name="idp8463024"></a><p>
5034 Enter the Internet, or, more precisely, technologies such as MP3s and
5035 p2p sharing. Now the constraint of architecture changes dramatically,
5036 as does the constraint of the market. And as both the market and
5037 architecture relax the regulation of copyright, norms pile on. The
5038 happy balance (for the warriors, at least) of life before the Internet
5039 becomes an effective state of anarchy after the Internet.
5040 </p><a class="indexterm" name="idp8465040"></a><a class="indexterm" name="idp8466416"></a><a class="indexterm" name="idp8467744"></a><p>
5041 Thus the sense of, and justification for, the warriors' response.
5042 Technology has changed, the warriors say, and the effect of this
5043 change, when ramified through the market and norms, is that a balance
5044 of protection for the copyright owners' rights has been lost. This is
5045 Iraq
5046
5047 after the fall of Saddam, but this time no government is justifying the
5048 looting that results.
5049 </p><div class="figure"><a name="fig-1381"></a><p class="title"><b>Figure 10.4. effective state of anarchy after the Internet.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1381.svg" align="middle" width="100%" alt="effective state of anarchy after the Internet."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8472528"></a><a class="indexterm" name="idxregulationasestablishmentprotectionism"></a><p>
5050 Neither this analysis nor the conclusions that follow are new to the
5051 warriors. Indeed, in a <span class="quote">«<span class="quote">White Paper</span>»</span> prepared by the Commerce
5052 Department (one heavily influenced by the copyright warriors) in 1995,
5053 this mix of regulatory modalities had already been identified and the
5054 strategy to respond already mapped. In response to the changes the
5055 Internet had effected, the White Paper argued (1) Congress should
5056 strengthen intellectual property law, (2) businesses should adopt
5057 innovative marketing techniques, (3) technologists should push to
5058 develop code to protect copyrighted material, and (4) educators should
5059 educate kids to better protect copyright.
5060 </p><a class="indexterm" name="idp8476720"></a><a class="indexterm" name="idp8478096"></a><a class="indexterm" name="idp8479424"></a><a class="indexterm" name="idp8480240"></a><p>
5061 This mixed strategy is just what copyright needed&#8212;if it was to
5062 preserve the particular balance that existed before the change induced
5063 by the Internet. And it's just what we should expect the content
5064 industry to push for. It is as American as apple pie to consider the
5065 happy life you have as an entitlement, and to look to the law to
5066 protect it if something comes along to change that happy
5067 life. Homeowners living in a
5068
5069
5070 flood plain have no hesitation appealing to the government to rebuild
5071 (and rebuild again) when a flood (architecture) wipes away their
5072 property (law). Farmers have no hesitation appealing to the government
5073 to bail them out when a virus (architecture) devastates their
5074 crop. Unions have no hesitation appealing to the government to bail
5075 them out when imports (market) wipe out the U.S. steel industry.
5076 </p><a class="indexterm" name="idp8482608"></a><a class="indexterm" name="idp8483856"></a><a class="indexterm" name="idp8485184"></a><p>
5077 Thus, there's nothing wrong or surprising in the content industry's
5078 campaign to protect itself from the harmful consequences of a
5079 technological innovation. And I would be the last person to argue that
5080 the changing technology of the Internet has not had a profound effect
5081 on the content industry's way of doing business, or as John Seely
5082 Brown describes it, its <span class="quote">«<span class="quote">architecture of revenue.</span>»</span>
5083 </p><a class="indexterm" name="idp8487200"></a><a class="indexterm" name="idp8488016"></a><a class="indexterm" name="idp8489120"></a><a class="indexterm" name="idp8489936"></a><a class="indexterm" name="idp8490752"></a><a class="indexterm" name="idp8491568"></a><a class="indexterm" name="idp8492384"></a><a class="indexterm" name="idp8493200"></a><p>
5084 But just because a particular interest asks for government support, it
5085 doesn't follow that support should be granted. And just because
5086 technology has weakened a particular way of doing business, it doesn't
5087 follow that the government should intervene to support that old way of
5088 doing business. Kodak, for example, has lost perhaps as much as 20
5089 percent of their traditional film market to the emerging technologies
5090 of digital cameras.<a href="#ftn.idp8494720" class="footnote" name="idp8494720"><sup class="footnote">[122]</sup></a>
5091
5092 Does anyone believe the government should ban digital cameras just to
5093 support Kodak? Highways have weakened the freight business for
5094 railroads. Does anyone think we should ban trucks from roads
5095 <span class="emphasis"><em>for the purpose of</em></span> protecting the railroads?
5096 Closer to the subject of this book, remote channel changers have
5097 weakened the <span class="quote">«<span class="quote">stickiness</span>»</span> of television advertising (if a boring
5098 commercial comes on the TV, the remote makes it easy to surf), and it
5099 may well be that this change has weakened the television advertising
5100 market. But does anyone believe we should regulate remotes to
5101 reinforce commercial television?  (Maybe by limiting them to function
5102 only once a second, or to switch to only ten channels within an hour?)
5103 </p><a class="indexterm" name="idxfreemarkettechnologicalchangesin"></a><a class="indexterm" name="idp8501296"></a><a class="indexterm" name="idp8502112"></a><a class="indexterm" name="idp8502928"></a><a class="indexterm" name="idp8504032"></a><a class="indexterm" name="idp8504848"></a><a class="indexterm" name="idp8505664"></a><p>
5104 The obvious answer to these obviously rhetorical questions is no.
5105 In a free society, with a free market, supported by free enterprise and
5106 free trade, the government's role is not to support one way of doing
5107
5108 business against others. Its role is not to pick winners and protect
5109 them against loss. If the government did this generally, then we would
5110 never have any progress. As Microsoft chairman Bill Gates wrote in
5111 1991, in a memo criticizing software patents, <span class="quote">«<span class="quote">established companies
5112 have an interest in excluding future competitors.</span>»</span><a href="#ftn.idp8507856" class="footnote" name="idp8507856"><sup class="footnote">[123]</sup></a>
5113 And relative to a
5114 startup, established companies also have the means. (Think RCA and
5115 FM radio.) A world in which competitors with new ideas must fight
5116 not only the market but also the government is a world in which
5117 competitors with new ideas will not succeed. It is a world of stasis and
5118 increasingly concentrated stagnation. It is the Soviet Union under
5119 Brezhnev.
5120 </p><p>
5121 Thus, while it is understandable for industries threatened with new
5122 technologies that change the way they do business to look to the
5123 government for protection, it is the special duty of policy makers to
5124 guarantee that that protection not become a deterrent to progress. It
5125 is the duty of policy makers, in other words, to assure that the
5126 changes they create, in response to the request of those hurt by
5127 changing technology, are changes that preserve the incentives and
5128 opportunities for innovation and change.
5129 </p><a class="indexterm" name="idp8510608"></a><a class="indexterm" name="idp8511680"></a><a class="indexterm" name="idp8512496"></a><p>
5130 In the context of laws regulating speech&#8212;which include,
5131 obviously, copyright law&#8212;that duty is even stronger. When the
5132 industry complaining about changing technologies is asking Congress to
5133 respond in a way that burdens speech and creativity, policy makers
5134 should be especially wary of the request. It is always a bad deal for
5135 the government to get into the business of regulating speech
5136 markets. The risks and dangers of that game are precisely why our
5137 framers created the First Amendment to our Constitution: <span class="quote">«<span class="quote">Congress
5138 shall make no law &#8230;  abridging the freedom of speech.</span>»</span> So when
5139 Congress is being asked to pass laws that would <span class="quote">«<span class="quote">abridge</span>»</span> the freedom
5140 of speech, it should ask&#8212; carefully&#8212;whether such
5141 regulation is justified.
5142 </p><a class="indexterm" name="idp8515744"></a><a class="indexterm" name="idp8516976"></a><p>
5143 My argument just now, however, has nothing to do with whether
5144
5145 the changes that are being pushed by the copyright warriors are
5146 <span class="quote">«<span class="quote">justified.</span>»</span>  My argument is about their effect. For before we get to
5147 the question of justification, a hard question that depends a great
5148 deal upon your values, we should first ask whether we understand the
5149 effect of the changes the content industry wants.
5150 </p><p>
5151 Here's the metaphor that will capture the argument to follow.
5152 </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>
5153 In 1873, the chemical DDT was first synthesized. In 1948, Swiss
5154 chemist Paul Hermann Müller won the Nobel Prize for his work
5155 demonstrating the insecticidal properties of DDT. By the 1950s, the
5156 insecticide was widely used around the world to kill disease-carrying
5157 pests. It was also used to increase farm production.
5158 </p><p>
5159 No one doubts that killing disease-carrying pests or increasing crop
5160 production is a good thing. No one doubts that the work of Müller was
5161 important and valuable and probably saved lives, possibly millions.
5162 </p><a class="indexterm" name="idp8528272"></a><a class="indexterm" name="idp8529088"></a><a class="indexterm" name="idxenvironmentalism"></a><p>
5163 But in 1962, Rachel Carson published <em class="citetitle">Silent Spring</em>, which argued that
5164 DDT, whatever its primary benefits, was also having unintended
5165 environmental consequences. Birds were losing the ability to
5166 reproduce.  Whole chains of the ecology were being destroyed.
5167 </p><p>
5168 No one set out to destroy the environment. Paul Müller certainly did
5169 not aim to harm any birds. But the effort to solve one set of problems
5170 produced another set which, in the view of some, was far worse than
5171 the problems that were originally attacked. Or more accurately, the
5172 problems DDT caused were worse than the problems it solved, at least
5173 when considering the other, more environmentally friendly ways to
5174 solve the problems that DDT was meant to solve.
5175 </p><a class="indexterm" name="idp8533648"></a><a class="indexterm" name="idp8534960"></a><a class="indexterm" name="idxcopyrightlawinnovativefreedombalancedwithfaircompensationin2"></a><p>
5176 It is to this image precisely that Duke University law professor James
5177 Boyle appeals when he argues that we need an <span class="quote">«<span class="quote">environmentalism</span>»</span> for
5178 culture.<a href="#ftn.idp8538672" class="footnote" name="idp8538672"><sup class="footnote">[124]</sup></a>
5179 His point, and the point I want to develop in the balance of this
5180 chapter, is not that the aims of copyright are flawed. Or that authors
5181 should not be paid for their work. Or that music should be given away
5182 <span class="quote">«<span class="quote">for free.</span>»</span> The point is that some of the ways in which we might
5183 protect authors will have unintended consequences for the cultural
5184 environment, much like DDT had for the natural environment. And just
5185
5186 as criticism of DDT is not an endorsement of malaria or an attack on
5187 farmers, so, too, is criticism of one particular set of regulations
5188 protecting copyright not an endorsement of anarchy or an attack on
5189 authors.  It is an environment of creativity that we seek, and we
5190 should be aware of our actions' effects on the environment.
5191 </p><a class="indexterm" name="idp8542032"></a><p>
5192 My argument, in the balance of this chapter, tries to map exactly
5193 this effect. No doubt the technology of the Internet has had a dramatic
5194 effect on the ability of copyright owners to protect their content. But
5195 there should also be little doubt that when you add together the
5196 changes in copyright law over time, plus the change in technology that
5197 the Internet is undergoing just now, the net effect of these changes will
5198 not be only that copyrighted work is effectively protected. Also, and
5199 generally missed, the net effect of this massive increase in protection
5200 will be devastating to the environment for creativity.
5201 </p><a class="indexterm" name="idp8544336"></a><p>
5202 In a line: To kill a gnat, we are spraying DDT with consequences
5203 for free culture that will be far more devastating than that this gnat will
5204 be lost.
5205 </p><a class="indexterm" name="idp8546368"></a><a class="indexterm" name="idp8547616"></a><a class="indexterm" name="idp8549056"></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="idp8551584"></a><a class="indexterm" name="idxconstitutionuscopyrightpurposeestablishedin"></a><a class="indexterm" name="idxconstitutionusprogressclauseof"></a><a class="indexterm" name="idp8556512"></a><a class="indexterm" name="idp8557584"></a><a class="indexterm" name="idxcreativepropertyconstitutionaltraditionon2"></a><a class="indexterm" name="idxprogressclause"></a><a class="indexterm" name="idp8562128"></a><p>
5206 America copied English copyright law. Actually, we copied and improved
5207 English copyright law. Our Constitution makes the purpose of <span class="quote">«<span class="quote">creative
5208 property</span>»</span> rights clear; its express limitations reinforce the English
5209 aim to avoid overly powerful publishers.
5210 </p><a class="indexterm" name="idxcongressusinconstitutionalprogressclause"></a><p>
5211 The power to establish <span class="quote">«<span class="quote">creative property</span>»</span> rights is granted to
5212 Congress in a way that, for our Constitution, at least, is very
5213 odd. Article I, section 8, clause 8 of our Constitution states that:
5214 </p><p>
5215 Congress has the power to promote the Progress of Science and
5216 useful Arts, by securing for limited Times to Authors and Inventors
5217 the exclusive Right to their respective Writings and Discoveries.
5218
5219
5220 We can call this the <span class="quote">«<span class="quote">Progress Clause,</span>»</span> for notice what this clause
5221 does not say. It does not say Congress has the power to grant
5222 <span class="quote">«<span class="quote">creative property rights.</span>»</span> It says that Congress has the power
5223 <span class="emphasis"><em>to promote progress</em></span>. The grant of power is its
5224 purpose, and its purpose is a public one, not the purpose of enriching
5225 publishers, nor even primarily the purpose of rewarding authors.
5226 </p><a class="indexterm" name="idp8569776"></a><a class="indexterm" name="idxcopyrightlawasprotectionofcreators"></a><a class="indexterm" name="idxcopyrightlawhistoryofamerican"></a><p>
5227 The Progress Clause expressly limits the term of copyrights. As we saw
5228 in chapter <a class="xref" href="#founders" title="Chapter 6. CHAPTER SIX: Founders">6</a>,
5229 the English limited the term of copyright so as to assure that a few
5230 would not exercise disproportionate control over culture by exercising
5231 disproportionate control over publishing. We can assume the framers
5232 followed the English for a similar purpose. Indeed, unlike the
5233 English, the framers reinforced that objective, by requiring that
5234 copyrights extend <span class="quote">«<span class="quote">to Authors</span>»</span> only.
5235 </p><a class="indexterm" name="idp8577056"></a><a class="indexterm" name="idp8577872"></a><a class="indexterm" name="idp8578992"></a><p>
5236 The design of the Progress Clause reflects something about the
5237 Constitution's design in general. To avoid a problem, the framers
5238 built structure. To prevent the concentrated power of publishers, they
5239 built a structure that kept copyrights away from publishers and kept
5240 them short. To prevent the concentrated power of a church, they banned
5241 the federal government from establishing a church. To prevent
5242 concentrating power in the federal government, they built structures
5243 to reinforce the power of the states&#8212;including the Senate, whose
5244 members were at the time selected by the states, and an electoral
5245 college, also selected by the states, to select the president. In each
5246 case, a <span class="emphasis"><em>structure</em></span> built checks and balances into
5247 the constitutional frame, structured to prevent otherwise inevitable
5248 concentrations of power.
5249 </p><a class="indexterm" name="idp8581456"></a><a class="indexterm" name="idp8582784"></a><p>
5250 I doubt the framers would recognize the regulation we call <span class="quote">«<span class="quote">copyright</span>»</span>
5251 today. The scope of that regulation is far beyond anything they ever
5252 considered. To begin to understand what they did, we need to put our
5253 <span class="quote">«<span class="quote">copyright</span>»</span> in context: We need to see how it has changed in the 210
5254 years since they first struck its design.
5255 </p><a class="indexterm" name="idp8585472"></a><a class="indexterm" name="idp8586912"></a><a class="indexterm" name="idp8588224"></a><a class="indexterm" name="idp8589552"></a><p>
5256 Some of these changes come from the law: some in light of changes
5257 in technology, and some in light of changes in technology given a
5258
5259 particular concentration of market power. In terms of our model, we
5260 started here:
5261 </p><div class="figure"><a name="fig-1441"></a><p class="title"><b>Figure 10.5. Copyright's regulation before the Internet.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1331.svg" align="middle" width="100%" alt="Copyright's regulation before the Internet."></td></tr></table></div></div></div><br class="figure-break"><p>
5262 We will end here:
5263 </p><div class="figure"><a name="fig-1442"></a><p class="title"><b>Figure 10.6. <span class="quote">«<span class="quote">Copyright</span>»</span> today.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1442.svg" align="middle" width="100%" alt="«Copyright» today."></td></tr></table></div></div></div><br class="figure-break"><p>
5264 Let me explain how.
5265
5266 </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="idp8604528"></a><a class="indexterm" name="idxpublicdomainbalanceofuscontentin"></a><p>
5267 When the first Congress enacted laws to protect creative property, it
5268 faced the same uncertainty about the status of creative property that
5269 the English had confronted in 1774. Many states had passed laws
5270 protecting creative property, and some believed that these laws simply
5271 supplemented common law rights that already protected creative
5272 authorship.<a href="#ftn.idp8608112" class="footnote" name="idp8608112"><sup class="footnote">[125]</sup></a>
5273 This meant that there was no guaranteed public domain in the United
5274 States in 1790. If copyrights were protected by the common law, then
5275 there was no simple way to know whether a work published in the United
5276 States was controlled or free. Just as in England, this lingering
5277 uncertainty would make it hard for publishers to rely upon a public
5278 domain to reprint and distribute works.
5279 </p><a class="indexterm" name="idp8611872"></a><a class="indexterm" name="idxlawfederalvsstate"></a><p>
5280 That uncertainty ended after Congress passed legislation granting
5281 copyrights. Because federal law overrides any contrary state law,
5282 federal protections for copyrighted works displaced any state law
5283 protections.  Just as in England the Statute of Anne eventually meant
5284 that the copyrights for all English works expired, a federal statute
5285 meant that any state copyrights expired as well.
5286 </p><a class="indexterm" name="idxcopyrightrenewabilityof"></a><p>
5287 In 1790, Congress enacted the first copyright law. It created a
5288 federal copyright and secured that copyright for fourteen years. If
5289 the author was alive at the end of that fourteen years, then he could
5290 opt to renew the copyright for another fourteen years. If he did not
5291 renew the copyright, his work passed into the public domain.
5292 </p><a class="indexterm" name="idp8617904"></a><p>
5293 While there were many works created in the United States in the first
5294 ten years of the Republic, only 5 percent of the works were actually
5295 registered under the federal copyright regime. Of all the work created
5296 in the United States both before 1790 and from 1790 through 1800, 95
5297 percent immediately passed into the public domain; the balance would
5298 pass into the pubic domain within twenty-eight years at most, and more
5299 likely within fourteen years.<a href="#ftn.idp8619968" class="footnote" name="idp8619968"><sup class="footnote">[126]</sup></a>
5300 </p><a class="indexterm" name="idp8624144"></a><a class="indexterm" name="idp8625360"></a><p>
5301 This system of renewal was a crucial part of the American system
5302 of copyright. It assured that the maximum terms of copyright would be
5303
5304 granted only for works where they were wanted. After the initial term
5305 of fourteen years, if it wasn't worth it to an author to renew his
5306 copyright, then it wasn't worth it to society to insist on the
5307 copyright, either.
5308 </p><p>
5309 Fourteen years may not seem long to us, but for the vast majority of
5310 copyright owners at that time, it was long enough: Only a small
5311 minority of them renewed their copyright after fourteen years; the
5312 balance allowed their work to pass into the public
5313 domain.<a href="#ftn.idp8628240" class="footnote" name="idp8628240"><sup class="footnote">[127]</sup></a>
5314 </p><a class="indexterm" name="idp8631408"></a><a class="indexterm" name="idp8632736"></a><a class="indexterm" name="idp8633840"></a><p>
5315 Even today, this structure would make sense. Most creative work
5316 has an actual commercial life of just a couple of years. Most books fall
5317 out of print after one year.<a href="#ftn.idp8635376" class="footnote" name="idp8635376"><sup class="footnote">[128]</sup></a> When that happens, the
5318 used books are traded free of copyright regulation. Thus the books are
5319 no longer <span class="emphasis"><em>effectively</em></span> controlled by
5320 copyright. The only practical commercial use of the books at that time
5321 is to sell the books as used books; that use&#8212;because it does not
5322 involve publication&#8212;is effectively free.
5323 </p><a class="indexterm" name="idxcongressusoncopyrightlaws6"></a><a class="indexterm" name="idxcongressuscopyrighttermsextendedby"></a><a class="indexterm" name="idxcopyrightlawtermextensionsin"></a><p>
5324 In the first hundred years of the Republic, the term of copyright was
5325 changed once. In 1831, the term was increased from a maximum of 28
5326 years to a maximum of 42 by increasing the initial term of copyright
5327 from 14 years to 28 years. In the next fifty years of the Republic,
5328 the term increased once again. In 1909, Congress extended the renewal
5329 term of 14 years to 28 years, setting a maximum term of 56 years.
5330 </p><a class="indexterm" name="idxsonnybonocopyrighttermextensionactctea"></a><a class="indexterm" name="idxpublicdomainfuturepatentsvsfuturecopyrightsin"></a><p>
5331 Then, beginning in 1962, Congress started a practice that has defined
5332 copyright law since. Eleven times in the last forty years, Congress
5333 has extended the terms of existing copyrights; twice in those forty
5334 years, Congress extended the term of future copyrights. Initially, the
5335 extensions of existing copyrights were short, a mere one to two years.
5336 In 1976, Congress extended all existing copyrights by nineteen years.
5337 And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress
5338 extended the term of existing and future copyrights by twenty years.
5339 </p><a class="indexterm" name="idp8648032"></a><p>
5340 The effect of these extensions is simply to toll, or delay, the passing
5341 of works into the public domain. This latest extension means that the
5342 public domain will have been tolled for thirty-nine out of fifty-five
5343 years, or 70 percent of the time since 1962. Thus, in the twenty years
5344
5345
5346 after the Sonny Bono Act, while one million patents will pass into the
5347 public domain, zero copyrights will pass into the public domain by virtue
5348 of the expiration of a copyright term.
5349 </p><a class="indexterm" name="idp8650352"></a><p>
5350 The effect of these extensions has been exacerbated by another,
5351 little-noticed change in the copyright law. Remember I said that the
5352 framers established a two-part copyright regime, requiring a copyright
5353 owner to renew his copyright after an initial term. The requirement of
5354 renewal meant that works that no longer needed copyright protection
5355 would pass more quickly into the public domain. The works remaining
5356 under protection would be those that had some continuing commercial
5357 value.
5358 </p><a class="indexterm" name="idp8652512"></a><a class="indexterm" name="idp8653296"></a><a class="indexterm" name="idp8654416"></a><p>
5359 The United States abandoned this sensible system in 1976. For
5360 all works created after 1978, there was only one copyright term&#8212;the
5361 maximum term. For <span class="quote">«<span class="quote">natural</span>»</span> authors, that term was life plus fifty
5362 years. For corporations, the term was seventy-five years. Then, in 1992,
5363 Congress abandoned the renewal requirement for all works created
5364 before 1978. All works still under copyright would be accorded the
5365 maximum term then available. After the Sonny Bono Act, that term
5366 was ninety-five years.
5367 </p><p>
5368 This change meant that American law no longer had an automatic way to
5369 assure that works that were no longer exploited passed into the public
5370 domain. And indeed, after these changes, it is unclear whether it is
5371 even possible to put works into the public domain. The public domain
5372 is orphaned by these changes in copyright law. Despite the requirement
5373 that terms be <span class="quote">«<span class="quote">limited,</span>»</span> we have no evidence that anything will limit
5374 them.
5375 </p><a class="indexterm" name="idp8658096"></a><a class="indexterm" name="idp8659488"></a><p>
5376 The effect of these changes on the average duration of copyright is
5377 dramatic. In 1973, more than 85 percent of copyright owners failed to
5378 renew their copyright. That meant that the average term of copyright
5379 in 1973 was just 32.2 years. Because of the elimination of the renewal
5380 requirement, the average term of copyright is now the maximum term.
5381 In thirty years, then, the average term has tripled, from 32.2 years to 95
5382 years.<a href="#ftn.idp8661584" class="footnote" name="idp8661584"><sup class="footnote">[129]</sup></a>
5383 </p><a class="indexterm" name="idp8663248"></a><a class="indexterm" name="idp8664496"></a><a class="indexterm" name="idp8665888"></a><a class="indexterm" name="idp8667232"></a><a class="indexterm" name="idp8668576"></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>
5384 The <span class="quote">«<span class="quote">scope</span>»</span> of a copyright is the range of rights granted by the law.
5385 The scope of American copyright has changed dramatically. Those
5386 changes are not necessarily bad. But we should understand the extent
5387 of the changes if we're to keep this debate in context.
5388 </p><a class="indexterm" name="idp8674384"></a><a class="indexterm" name="idxderivativeworkshistoricalshiftincopyrightcoverageof"></a><p>
5389 In 1790, that scope was very narrow. Copyright covered only <span class="quote">«<span class="quote">maps,
5390 charts, and books.</span>»</span> That means it didn't cover, for example, music or
5391 architecture. More significantly, the right granted by a copyright gave
5392 the author the exclusive right to <span class="quote">«<span class="quote">publish</span>»</span> copyrighted works. That
5393 means someone else violated the copyright only if he republished the
5394 work without the copyright owner's permission. Finally, the right granted
5395 by a copyright was an exclusive right to that particular book. The right
5396 did not extend to what lawyers call <span class="quote">«<span class="quote">derivative works.</span>»</span> It would not,
5397 therefore, interfere with the right of someone other than the author to
5398 translate a copyrighted book, or to adapt the story to a different form
5399 (such as a drama based on a published book).
5400 </p><p>
5401 This, too, has changed dramatically. While the contours of copyright
5402 today are extremely hard to describe simply, in general terms, the
5403 right covers practically any creative work that is reduced to a
5404 tangible form. It covers music as well as architecture, drama as well
5405 as computer programs. It gives the copyright owner of that creative
5406 work not only the exclusive right to <span class="quote">«<span class="quote">publish</span>»</span> the work, but also the
5407 exclusive right of control over any <span class="quote">«<span class="quote">copies</span>»</span> of that work. And most
5408 significant for our purposes here, the right gives the copyright owner
5409 control over not only his or her particular work, but also any
5410 <span class="quote">«<span class="quote">derivative work</span>»</span> that might grow out of the original work. In this
5411 way, the right covers more creative work, protects the creative work
5412 more broadly, and protects works that are based in a significant way
5413 on the initial creative work.
5414 </p><a class="indexterm" name="idxcopyrightmarkingof"></a><a class="indexterm" name="idxformalities"></a><a class="indexterm" name="idxcopyrightlawregistrationrequirementof"></a><p>
5415 At the same time that the scope of copyright has expanded, procedural
5416 limitations on the right have been relaxed. I've already described the
5417 complete removal of the renewal requirement in 1992. In addition
5418
5419 to the renewal requirement, for most of the history of American
5420 copyright law, there was a requirement that a work be registered
5421 before it could receive the protection of a copyright. There was also
5422 a requirement that any copyrighted work be marked either with that
5423 famous © or the word <span class="emphasis"><em>copyright</em></span>. And for most
5424 of the history of American copyright law, there was a requirement that
5425 works be deposited with the government before a copyright could be
5426 secured.
5427 </p><a class="indexterm" name="idp8689440"></a><p>
5428 The reason for the registration requirement was the sensible
5429 understanding that for most works, no copyright was required. Again,
5430 in the first ten years of the Republic, 95 percent of works eligible
5431 for copyright were never copyrighted. Thus, the rule reflected the
5432 norm: Most works apparently didn't need copyright, so registration
5433 narrowed the regulation of the law to the few that did. The same
5434 reasoning justified the requirement that a work be marked as
5435 copyrighted&#8212;that way it was easy to know whether a copyright was
5436 being claimed. The requirement that works be deposited was to assure
5437 that after the copyright expired, there would be a copy of the work
5438 somewhere so that it could be copied by others without locating the
5439 original author.
5440 </p><a class="indexterm" name="idp8691136"></a><p>
5441 All of these <span class="quote">«<span class="quote">formalities</span>»</span> were abolished in the American system when
5442 we decided to follow European copyright law. There is no requirement
5443 that you register a work to get a copyright; the copyright now is
5444 automatic; the copyright exists whether or not you mark your work with
5445 a ©; and the copyright exists whether or not you actually make a
5446 copy available for others to copy.
5447 </p><a class="indexterm" name="idp8694368"></a><a class="indexterm" name="idp8695968"></a><a class="indexterm" name="idp8697232"></a><p>
5448 Consider a practical example to understand the scope of these
5449 differences.
5450 </p><a class="indexterm" name="idxcopyrightact2"></a><p>
5451 If, in 1790, you wrote a book and you were one of the 5 percent who
5452 actually copyrighted that book, then the copyright law protected you
5453 against another publisher's taking your book and republishing it
5454 without your permission. The aim of the act was to regulate publishers
5455 so as to prevent that kind of unfair competition. In 1790, there were
5456 174 publishers in the United States.<a href="#ftn.idp8701152" class="footnote" name="idp8701152"><sup class="footnote">[130]</sup></a>
5457 The Copyright Act was thus a tiny
5458 regulation of a tiny proportion of a tiny part of the creative market in
5459 the United States&#8212;publishers.
5460 </p><a class="indexterm" name="idxcopyrightlawonrepublishingvstransformationoforiginalwork2"></a><a class="indexterm" name="idxderivativeworkspiracyvs3"></a><a class="indexterm" name="idxpiracyderivativeworkvs3"></a><p>
5461
5462 The act left other creators totally unregulated. If I copied your poem
5463 by hand, over and over again, as a way to learn it by heart, my act
5464 was totally unregulated by the 1790 act. If I took your novel and made
5465 a play based upon it, or if I translated it or abridged it, none of
5466 those activities were regulated by the original copyright act. These
5467 creative activities remained free, while the activities of publishers
5468 were restrained.
5469 </p><a class="indexterm" name="idp8710368"></a><p>
5470 Today the story is very different: If you write a book, your book is
5471 automatically protected. Indeed, not just your book. Every e-mail,
5472 every note to your spouse, every doodle, <span class="emphasis"><em>every</em></span>
5473 creative act that's reduced to a tangible form&#8212;all of this is
5474 automatically copyrighted.  There is no need to register or mark your
5475 work. The protection follows the creation, not the steps you take to
5476 protect it.
5477 </p><p>
5478 That protection gives you the right (subject to a narrow range of
5479 fair use exceptions) to control how others copy the work, whether they
5480 copy it to republish it or to share an excerpt.
5481 </p><p>
5482 That much is the obvious part. Any system of copyright would
5483                 control
5484 competing publishing. But there's a second part to the copyright of
5485 today that is not at all obvious. This is the protection of <span class="quote">«<span class="quote">derivative
5486 rights.</span>»</span> If you write a book, no one can make a movie out of your
5487 book without permission. No one can translate it without permission.
5488 CliffsNotes can't make an abridgment unless permission is granted. All
5489 of these derivative uses of your original work are controlled by the
5490 copyright holder. The copyright, in other words, is now not just an
5491                 exclusive
5492 right to your writings, but an exclusive right to your writings
5493 and a large proportion of the writings inspired by them.
5494 </p><a class="indexterm" name="idp8714928"></a><p>
5495 It is this derivative right that would seem most bizarre to our
5496 framers, though it has become second nature to us. Initially, this
5497                 expansion
5498 was created to deal with obvious evasions of a narrower
5499                 copyright.
5500 If I write a book, can you change one word and then claim a
5501 copyright in a new and different book? Obviously that would make a
5502 joke of the copyright, so the law was properly expanded to include
5503 those slight modifications as well as the verbatim original work.
5504 </p><p>
5505
5506 In preventing that joke, the law created an astonishing power
5507 within a free culture&#8212;at least, it's astonishing when you
5508 understand that the law applies not just to the commercial publisher
5509 but to anyone with a computer. I understand the wrong in duplicating
5510 and selling someone else's work. But whatever
5511 <span class="emphasis"><em>that</em></span> wrong is, transforming someone else's work
5512 is a different wrong. Some view transformation as no wrong at
5513 all&#8212;they believe that our law, as the framers penned it, should
5514 not protect derivative rights at all.<a href="#ftn.idp8718448" class="footnote" name="idp8718448"><sup class="footnote">[131]</sup></a>
5515 Whether or not you go that far, it seems
5516 plain that whatever wrong is involved is fundamentally different from
5517 the wrong of direct piracy.
5518 </p><p>
5519 Yet copyright law treats these two different wrongs in the same way. I
5520 can go to court and get an injunction against your pirating my book. I
5521 can go to court and get an injunction against your transformative use
5522 of my book.<a href="#ftn.idp8722672" class="footnote" name="idp8722672"><sup class="footnote">[132]</sup></a>
5523 These two different uses of my creative work are treated the same.
5524 </p><a class="indexterm" name="idp8726000"></a><a class="indexterm" name="idp8727392"></a><a class="indexterm" name="idp8728208"></a><p>
5525 This again may seem right to you. If I wrote a book, then why should
5526 you be able to write a movie that takes my story and makes money from
5527 it without paying me or crediting me? Or if Disney creates a creature
5528 called <span class="quote">«<span class="quote">Mickey Mouse,</span>»</span> why should you be able to make Mickey Mouse
5529 toys and be the one to trade on the value that Disney originally
5530 created?
5531 </p><p>
5532 These are good arguments, and, in general, my point is not that the
5533 derivative right is unjustified. My aim just now is much narrower:
5534 simply to make clear that this expansion is a significant change from
5535 the rights originally granted.
5536 </p><a class="indexterm" name="idp8730832"></a><a class="indexterm" name="idp8732096"></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>
5537 Whereas originally the law regulated only publishers, the change in
5538 copyright's scope means that the law today regulates publishers, users,
5539 and authors. It regulates them because all three are capable of making
5540 copies, and the core of the regulation of copyright law is copies.<a href="#ftn.idp8739056" class="footnote" name="idp8739056"><sup class="footnote">[133]</sup></a>
5541 </p><a class="indexterm" name="idp8742912"></a><a class="indexterm" name="idxcreativepropertyotherpropertyrightsvs2"></a><p>
5542
5543 <span class="quote">«<span class="quote">Copies.</span>»</span> That certainly sounds like the obvious thing for
5544 <span class="emphasis"><em>copy</em></span>right law to regulate. But as with Jack
5545 Valenti's argument at the start of this chapter, that <span class="quote">«<span class="quote">creative
5546 property</span>»</span> deserves the <span class="quote">«<span class="quote">same rights</span>»</span> as all other property, it is the
5547 <span class="emphasis"><em>obvious</em></span> that we need to be most careful
5548 about. For while it may be obvious that in the world before the
5549 Internet, copies were the obvious trigger for copyright law, upon
5550 reflection, it should be obvious that in the world with the Internet,
5551 copies should <span class="emphasis"><em>not</em></span> be the trigger for copyright
5552 law. More precisely, they should not <span class="emphasis"><em>always</em></span> be
5553 the trigger for copyright law.
5554 </p><a class="indexterm" name="idp8750192"></a><p>
5555 This is perhaps the central claim of this book, so let me take this
5556 very slowly so that the point is not easily missed. My claim is that the
5557 Internet should at least force us to rethink the conditions under which
5558 the law of copyright automatically applies,<a href="#ftn.idp8752112" class="footnote" name="idp8752112"><sup class="footnote">[134]</sup></a>
5559 because it is clear that the
5560 current reach of copyright was never contemplated, much less chosen,
5561 by the legislators who enacted copyright law.
5562 </p><a class="indexterm" name="idp8753840"></a><a class="indexterm" name="idp8755008"></a><p>
5563 We can see this point abstractly by beginning with this largely
5564 empty circle.
5565 </p><div class="figure"><a name="fig-1521"></a><p class="title"><b>Figure 10.7. All potential uses of a book.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1521.svg" align="middle" width="100%" alt="All potential uses of a book."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idxbooksthreetypesofusesof"></a><a class="indexterm" name="idxcopyrightlawcopiesascoreissueof2"></a><a class="indexterm" name="idxinternetcopyrightapplicabilityalteredbytechnologyof"></a><a class="indexterm" name="idxtechnologycopyrightintentalteredby"></a><a class="indexterm" name="idxderivativeworkspiracyvs4"></a><a class="indexterm" name="idxpiracyderivativeworkvs4"></a><p>
5566
5567 Think about a book in real space, and imagine this circle to represent
5568 all its potential <span class="emphasis"><em>uses</em></span>. Most of these uses are
5569 unregulated by copyright law, because the uses don't create a copy. If
5570 you read a book, that act is not regulated by copyright law. If you
5571 give someone the book, that act is not regulated by copyright law. If
5572 you resell a book, that act is not regulated (copyright law expressly
5573 states that after the first sale of a book, the copyright owner can
5574 impose no further conditions on the disposition of the book). If you
5575 sleep on the book or use it to hold up a lamp or let your puppy chew
5576 it up, those acts are not regulated by copyright law, because those
5577 acts do not make a copy.
5578 </p><div class="figure"><a name="fig-1531"></a><p class="title"><b>Figure 10.8. Examples of unregulated uses of a book.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1531.png" align="middle" width="100%" alt="Examples of unregulated uses of a book."></td></tr></table></div></div></div><br class="figure-break"><p>
5579 Obviously, however, some uses of a copyrighted book are regulated
5580 by copyright law. Republishing the book, for example, makes a copy. It
5581 is therefore regulated by copyright law. Indeed, this particular use stands
5582 at the core of this circle of possible uses of a copyrighted work. It is the
5583 paradigmatic use properly regulated by copyright regulation (see
5584 diagram in <a class="xref" href="#fig-1541" title="Figure 10.9. Republishing stands at the core of this circle of possible uses of a copyrighted work.">Figure 10.9, &#8220;Republishing stands at the core of this circle of possible uses of a copyrighted work.&#8221;</a>).
5585 </p><a class="indexterm" name="idp8776560"></a><a class="indexterm" name="idp8777920"></a><a class="indexterm" name="idxfairuse"></a><a class="indexterm" name="idxcopyrightlawfairuseand2"></a><p>
5586 Finally, there is a tiny sliver of otherwise regulated copying uses
5587 that remain unregulated because the law considers these <span class="quote">«<span class="quote">fair uses.</span>»</span>
5588 </p><div class="figure"><a name="fig-1541"></a><p class="title"><b>Figure 10.9. Republishing stands at the core of this circle of possible uses of a copyrighted work.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1541.svg" align="middle" width="100%" alt="Republishing stands at the core of this circle of possible uses of a copyrighted work."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8786544"></a><a class="indexterm" name="idp8787648"></a><p>
5589 These are uses that themselves involve copying, but which the law
5590 treats as unregulated because public policy demands that they remain
5591 unregulated.  You are free to quote from this book, even in a review
5592 that is quite negative, without my permission, even though that
5593 quoting makes a copy. That copy would ordinarily give the copyright
5594 owner the exclusive right to say whether the copy is allowed or not,
5595 but the law denies the owner any exclusive right over such <span class="quote">«<span class="quote">fair uses</span>»</span>
5596 for public policy (and possibly First Amendment) reasons.
5597 </p><div class="figure"><a name="fig-1542"></a><p class="title"><b>Figure 10.10. Unregulated copying considered <span class="quote">«<span class="quote">fair uses.</span>»</span></b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1542.png" align="middle" width="100%" alt="Unregulated copying considered «fair uses.»"></td></tr></table></div></div></div><br class="figure-break"><p> </p><div class="figure"><a name="fig-1551"></a><p class="title"><b>Figure 10.11. Uses that before were presumptively unregulated are now presumptively regulated.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1551.png" align="middle" width="100%" alt="Uses that before were presumptively unregulated are now presumptively regulated."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idxcopyrightusagerestrictionsattachedto"></a><p>
5598
5599 In real space, then, the possible uses of a book are divided into three
5600 sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that
5601 are nonetheless deemed <span class="quote">«<span class="quote">fair</span>»</span> regardless of the copyright owner's views.
5602 </p><a class="indexterm" name="idp8798752"></a><a class="indexterm" name="idxbooksoninternet"></a><a class="indexterm" name="idxinternetbookson2"></a><a class="indexterm" name="idp8803744"></a><p>
5603 Enter the Internet&#8212;a distributed, digital network where every use
5604 of a copyrighted work produces a copy.<a href="#ftn.idp8805296" class="footnote" name="idp8805296"><sup class="footnote">[135]</sup></a>
5605 And because of this single, arbitrary feature of the design of a
5606 digital network, the scope of category 1 changes dramatically. Uses
5607 that before were presumptively unregulated are now presumptively
5608 regulated. No longer is there a set of presumptively unregulated uses
5609 that define a freedom associated with a copyrighted work. Instead,
5610 each use is now subject to the copyright, because each use also makes
5611 a copy&#8212;category 1 gets sucked into category 2. And those who
5612 would defend the unregulated uses of copyrighted work must look
5613 exclusively to category 3, fair uses, to bear the burden of this
5614 shift.
5615 </p><a class="indexterm" name="idp8806800"></a><a class="indexterm" name="idp8808864"></a><p>
5616 So let's be very specific to make this general point clear. Before the
5617 Internet, if you purchased a book and read it ten times, there would
5618 be no plausible <span class="emphasis"><em>copyright</em></span>-related argument that
5619 the copyright owner could make to control that use of her
5620 book. Copyright law would have nothing to say about whether you read
5621 the book once, ten times, or every
5622
5623 night before you went to bed. None of those instances of
5624 use&#8212;reading&#8212; could be regulated by copyright law because
5625 none of those uses produced a copy.
5626 </p><a class="indexterm" name="idxebooks"></a><a class="indexterm" name="idxderivativeworkstechnologicaldevelopmentsand"></a><p>
5627 But the same book as an e-book is effectively governed by a different
5628 set of rules. Now if the copyright owner says you may read the book
5629 only once or only once a month, then <span class="emphasis"><em>copyright
5630 law</em></span> would aid the copyright owner in exercising this degree
5631 of control, because of the accidental feature of copyright law that
5632 triggers its application upon there being a copy. Now if you read the
5633 book ten times and the license says you may read it only five times,
5634 then whenever you read the book (or any portion of it) beyond the
5635 fifth time, you are making a copy of the book contrary to the
5636 copyright owner's wish.
5637 </p><p>
5638 There are some people who think this makes perfect sense. My aim
5639 just now is not to argue about whether it makes sense or not. My aim
5640 is only to make clear the change. Once you see this point, a few other
5641 points also become clear:
5642 </p><p>
5643 First, making category 1 disappear is not anything any policy maker
5644 ever intended. Congress did not think through the collapse of the
5645 presumptively unregulated uses of copyrighted works. There is no
5646 evidence at all that policy makers had this idea in mind when they
5647 allowed our policy here to shift. Unregulated uses were an important
5648 part of free culture before the Internet.
5649 </p><a class="indexterm" name="idxcopyrightlawonrepublishingvstransformationoforiginalwork3"></a><p>
5650 Second, this shift is especially troubling in the context of
5651 transformative uses of creative content. Again, we can all understand
5652 the wrong in commercial piracy. But the law now purports to regulate
5653 <span class="emphasis"><em>any</em></span> transformation you make of creative work
5654 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
5655 crimes. Tinkering with a story and releasing it to others exposes the
5656 tinkerer to at least a requirement of justification.  However
5657 troubling the expansion with respect to copying a particular work, it
5658 is extraordinarily troubling with respect to transformative uses of
5659 creative work.
5660 </p><a class="indexterm" name="idxfairuseinternetburdenson"></a><a class="indexterm" name="idxcopyrightlawfairuseand3"></a><a class="indexterm" name="idxderivativeworksfairusevs"></a><p>
5661 Third, this shift from category 1 to category 2 puts an extraordinary
5662
5663
5664 burden on category 3 (<span class="quote">«<span class="quote">fair use</span>»</span>) that fair use never before had to
5665 bear.  If a copyright owner now tried to control how many times I
5666 could read a book on-line, the natural response would be to argue that
5667 this is a violation of my fair use rights. But there has never been
5668 any litigation about whether I have a fair use right to read, because
5669 before the Internet, reading did not trigger the application of
5670 copyright law and hence the need for a fair use defense. The right to
5671 read was effectively protected before because reading was not
5672 regulated.
5673 </p><a class="indexterm" name="idp8829664"></a><a class="indexterm" name="idp8831008"></a><a class="indexterm" name="idp8832400"></a><a class="indexterm" name="idp8833728"></a><a class="indexterm" name="idp8835120"></a><p>
5674 This point about fair use is totally ignored, even by advocates for
5675 free culture. We have been cornered into arguing that our rights
5676 depend upon fair use&#8212;never even addressing the earlier question
5677 about the expansion in effective regulation. A thin protection
5678 grounded in fair use makes sense when the vast majority of uses are
5679 <span class="emphasis"><em>unregulated</em></span>. But when everything becomes
5680 presumptively regulated, then the protections of fair use are not
5681 enough.
5682 </p><a class="indexterm" name="idp8837872"></a><a class="indexterm" name="idp8839216"></a><a class="indexterm" name="idp8840480"></a><a class="indexterm" name="idp8841728"></a><a class="indexterm" name="idp8843040"></a><a class="indexterm" name="idp8844368"></a><a class="indexterm" name="idp8845648"></a><a class="indexterm" name="idxvideopipeline"></a><a class="indexterm" name="idxadvertising"></a><a class="indexterm" name="idxfilmindustrytraileradvertisementsof"></a><p>
5683 The case of Video Pipeline is a good example. Video Pipeline was
5684 in the business of making <span class="quote">«<span class="quote">trailer</span>»</span> advertisements for movies available
5685 to video stores. The video stores displayed the trailers as a way to sell
5686 videos. Video Pipeline got the trailers from the film distributors, put
5687 the trailers on tape, and sold the tapes to the retail stores.
5688 </p><a class="indexterm" name="idp8853040"></a><p>
5689 The company did this for about fifteen years. Then, in 1997, it began
5690 to think about the Internet as another way to distribute these
5691 previews.  The idea was to expand their <span class="quote">«<span class="quote">selling by sampling</span>»</span>
5692 technique by giving on-line stores the same ability to enable
5693 <span class="quote">«<span class="quote">browsing.</span>»</span> Just as in a bookstore you can read a few pages of a book
5694 before you buy the book, so, too, you would be able to sample a bit
5695 from the movie on-line before you bought it.
5696 </p><a class="indexterm" name="idxdisneyinc2"></a><a class="indexterm" name="idp8857024"></a><a class="indexterm" name="idxcopyrightlawcopiesascoreissueof3"></a><a class="indexterm" name="idxfairuselegalintimidationtacticsagainst2"></a><p>
5697 In 1998, Video Pipeline informed Disney and other film distributors
5698 that it intended to distribute the trailers through the Internet
5699 (rather than sending the tapes) to distributors of their videos. Two
5700 years later, Disney told Video Pipeline to stop. The owner of Video
5701
5702 Pipeline asked Disney to talk about the matter&#8212;he had built a
5703 business on distributing this content as a way to help sell Disney
5704 films; he had customers who depended upon his delivering this
5705 content. Disney would agree to talk only if Video Pipeline stopped the
5706 distribution immediately.  Video Pipeline thought it was within their
5707 <span class="quote">«<span class="quote">fair use</span>»</span> rights to distribute the clips as they had. So they filed a
5708 lawsuit to ask the court to declare that these rights were in fact
5709 their rights.
5710 </p><a class="indexterm" name="idp8863792"></a><a class="indexterm" name="idp8865040"></a><a class="indexterm" name="idxcopyrightusagerestrictionsattachedto2"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitswillfulinfringementfindingsin"></a><a class="indexterm" name="idp8870272"></a><p>
5711 Disney countersued&#8212;for $100 million in damages. Those damages
5712 were predicated upon a claim that Video Pipeline had <span class="quote">«<span class="quote">willfully
5713 infringed</span>»</span> on Disney's copyright. When a court makes a finding of
5714 willful infringement, it can award damages not on the basis of the
5715 actual harm to the copyright owner, but on the basis of an amount set
5716 in the statute. Because Video Pipeline had distributed seven hundred
5717 clips of Disney movies to enable video stores to sell copies of those
5718 movies, Disney was now suing Video Pipeline for $100 million.
5719 </p><p>
5720 Disney has the right to control its property, of course. But the video
5721 stores that were selling Disney's films also had some sort of right to be
5722 able to sell the films that they had bought from Disney. Disney's claim
5723 in court was that the stores were allowed to sell the films and they were
5724 permitted to list the titles of the films they were selling, but they were
5725 not allowed to show clips of the films as a way of selling them without
5726 Disney's permission.
5727 </p><a class="indexterm" name="idp8873712"></a><p>
5728 Now, you might think this is a close case, and I think the courts
5729 would consider it a close case. My point here is to map the change
5730 that gives Disney this power. Before the Internet, Disney couldn't
5731 really control how people got access to their content. Once a video
5732 was in the marketplace, the <span class="quote">«<span class="quote">first-sale doctrine</span>»</span> would free the
5733 seller to use the video as he wished, including showing portions of it
5734 in order to engender sales of the entire movie video. But with the
5735 Internet, it becomes possible for Disney to centralize control over
5736 access to this content. Because each use of the Internet produces a
5737 copy, use on the Internet becomes subject to the copyright owner's
5738 control. The technology expands the scope of effective control,
5739 because the technology builds a copy into every transaction.
5740 </p><a class="indexterm" name="idp8876112"></a><a class="indexterm" name="idp8877360"></a><a class="indexterm" name="idp8878608"></a><a class="indexterm" name="idp8880000"></a><a class="indexterm" name="idp8881328"></a><a class="indexterm" name="idp8882640"></a><a class="indexterm" name="idp8883984"></a><a class="indexterm" name="idp8884800"></a><a class="indexterm" name="idp8885616"></a><p>
5741
5742 No doubt, a potential is not yet an abuse, and so the potential for
5743 control is not yet the abuse of control. Barnes &amp; Noble has the
5744 right to say you can't touch a book in their store; property law gives
5745 them that right.  But the market effectively protects against that
5746 abuse. If Barnes &amp; Noble banned browsing, then consumers would
5747 choose other bookstores.  Competition protects against the
5748 extremes. And it may well be (my argument so far does not even
5749 question this) that competition would prevent any similar danger when
5750 it comes to copyright. Sure, publishers exercising the rights that
5751 authors have assigned to them might try to regulate how many times you
5752 read a book, or try to stop you from sharing the book with anyone. But
5753 in a competitive market such as the book market, the dangers of this
5754 happening are quite slight.
5755 </p><p>
5756 Again, my aim so far is simply to map the changes that this changed
5757 architecture enables. Enabling technology to enforce the control of
5758 copyright means that the control of copyright is no longer defined by
5759 balanced policy. The control of copyright is simply what private
5760 owners choose. In some contexts, at least, that fact is harmless. But
5761 in some contexts it is a recipe for disaster.
5762 </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>
5763 The disappearance of unregulated uses would be change enough, but a
5764 second important change brought about by the Internet magnifies its
5765 significance. This second change does not affect the reach of copyright
5766 regulation; it affects how such regulation is enforced.
5767 </p><a class="indexterm" name="idp8892544"></a><a class="indexterm" name="idp8893632"></a><p>
5768 In the world before digital technology, it was generally the law that
5769 controlled whether and how someone was regulated by copyright law.
5770 The law, meaning a court, meaning a judge: In the end, it was a human,
5771 trained in the tradition of the law and cognizant of the balances that
5772 tradition embraced, who said whether and how the law would restrict
5773 your freedom.
5774 </p><a class="indexterm" name="idp8895520"></a><a class="indexterm" name="idxmarxbrothers"></a><a class="indexterm" name="idxwarnerbrothers"></a><p>
5775 There's a famous story about a battle between the Marx Brothers
5776 and Warner Brothers. The Marxes intended to make a parody of
5777
5778 <em class="citetitle">Casablanca</em>. Warner Brothers objected. They
5779 wrote a nasty letter to the Marxes, warning them that there would be
5780 serious legal consequences if they went forward with their
5781 plan.<a href="#ftn.idp8900704" class="footnote" name="idp8900704"><sup class="footnote">[136]</sup></a>
5782 </p><p>
5783 This led the Marx Brothers to respond in kind. They warned
5784 Warner Brothers that the Marx Brothers <span class="quote">«<span class="quote">were brothers long before
5785 you were.</span>»</span><a href="#ftn.idp8903296" class="footnote" name="idp8903296"><sup class="footnote">[137]</sup></a>
5786 The Marx Brothers therefore owned the word
5787 <em class="citetitle">brothers</em>, and if Warner Brothers insisted on
5788 trying to control <em class="citetitle">Casablanca</em>, then the Marx
5789 Brothers would insist on control over <em class="citetitle">brothers</em>.
5790 </p><p>
5791 An absurd and hollow threat, of course, because Warner Brothers,
5792 like the Marx Brothers, knew that no court would ever enforce such a
5793 silly claim. This extremism was irrelevant to the real freedoms anyone
5794 (including Warner Brothers) enjoyed.
5795 </p><a class="indexterm" name="idxbooksoninternet2"></a><p>
5796 On the Internet, however, there is no check on silly rules, because on
5797 the Internet, increasingly, rules are enforced not by a human but by a
5798 machine: Increasingly, the rules of copyright law, as interpreted by
5799 the copyright owner, get built into the technology that delivers
5800 copyrighted content. It is code, rather than law, that rules. And the
5801 problem with code regulations is that, unlike law, code has no
5802 shame. Code would not get the humor of the Marx Brothers. The
5803 consequence of that is not at all funny.
5804 </p><a class="indexterm" name="idp8910336"></a><a class="indexterm" name="idp8911648"></a><a class="indexterm" name="idxadobeebookreader"></a><p>
5805 Consider the life of my Adobe eBook Reader.
5806 </p><p>
5807 An e-book is a book delivered in electronic form. An Adobe eBook is
5808 not a book that Adobe has published; Adobe simply produces the
5809 software that publishers use to deliver e-books. It provides the
5810 technology, and the publisher delivers the content by using the
5811 technology.
5812 </p><p>
5813 In <a class="xref" href="#fig-1611" title="Figure 10.12. Picture of an old version of Adobe eBook Reader">Figure 10.12, &#8220;Picture of an old version of Adobe eBook Reader&#8221;</a> is a picture of an old version of my
5814 Adobe eBook Reader.
5815 </p><p>
5816 As you can see, I have a small collection of e-books within this
5817 e-book library. Some of these books reproduce content that is in the
5818 public domain: <em class="citetitle">Middlemarch</em>, for example, is in
5819 the public domain.  Some of them reproduce content that is not in the
5820 public domain: My own book <em class="citetitle">The Future of Ideas</em>
5821 is not yet within the public domain.  Consider
5822 <em class="citetitle">Middlemarch</em> first. If you click on my e-book
5823 copy of
5824
5825 <em class="citetitle">Middlemarch</em>, you'll see a fancy cover, and then
5826 a button at the bottom called Permissions.
5827 </p><div class="figure"><a name="fig-1611"></a><p class="title"><b>Figure 10.12. Picture of an old version of Adobe eBook Reader</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1611.png" align="middle" width="100%" alt="Picture of an old version of Adobe eBook Reader"></td></tr></table></div></div></div><br class="figure-break"><p>
5828 If you click on the Permissions button, you'll see a list of the
5829 permissions that the publisher purports to grant with this book.
5830 </p><div class="figure"><a name="fig-1612"></a><p class="title"><b>Figure 10.13. List of the permissions that the publisher purports to grant.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1612.png" align="middle" width="100%" alt="List of the permissions that the publisher purports to grant."></td></tr></table></div></div></div><br class="figure-break"><p>
5831
5832 According to my eBook Reader, I have the permission to copy to the
5833 clipboard of the computer ten text selections every ten days. (So far,
5834 I've copied no text to the clipboard.)  I also have the permission to
5835 print ten pages from the book every ten days. Lastly, I have the
5836 permission to use the Read Aloud button to hear <em class="citetitle">Middlemarch</em>
5837 read aloud through the computer.
5838 </p><a class="indexterm" name="idp8926912"></a><a class="indexterm" name="idp8927728"></a><p>
5839 Here's the e-book for another work in the public domain (including the
5840 translation): Aristotle's <em class="citetitle">Politics</em>.
5841 </p><div class="figure"><a name="fig-1621"></a><p class="title"><b>Figure 10.14. E-book of Aristotle;s <span class="quote">«<span class="quote">Politics</span>»</span></b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1621.png" align="middle" width="100%" alt="E-book of Aristotle;s «Politics»"></td></tr></table></div></div></div><br class="figure-break"><p>
5842 According to its permissions, no printing or copying is permitted
5843 at all. But fortunately, you can use the Read Aloud button to hear
5844 the book.
5845 </p><div class="figure"><a name="fig-1622"></a><p class="title"><b>Figure 10.15. List of the permissions for Aristotle;s <span class="quote">«<span class="quote">Politics</span>»</span>.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1622.png" align="middle" width="100%" alt="List of the permissions for Aristotle;s «Politics»."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8936144"></a><a class="indexterm" name="idp8936976"></a><p>
5846 Finally (and most embarrassingly), here are the permissions for the
5847 original e-book version of my last book, <em class="citetitle">The Future of
5848 Ideas</em>:
5849 </p><div class="figure"><a name="fig-1631"></a><p class="title"><b>Figure 10.16. List of the permissions for <span class="quote">«<span class="quote">The Future of Ideas</span>»</span>.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1631.png" align="middle" width="100%" alt="List of the permissions for «The Future of Ideas»."></td></tr></table></div></div></div><br class="figure-break"><p>
5850 No copying, no printing, and don't you dare try to listen to this book!
5851 </p><p>
5852 Now, the Adobe eBook Reader calls these controls
5853 <span class="quote">«<span class="quote">permissions</span>»</span>&#8212; as if the publisher has the power to control how
5854 you use these works.  For works under copyright, the copyright owner
5855 certainly does have the power&#8212;up to the limits of the copyright
5856 law. But for work not under copyright, there is no such copyright
5857 power.<a href="#ftn.idp8943152" class="footnote" name="idp8943152"><sup class="footnote">[138]</sup></a>
5858 When my e-book of <em class="citetitle">Middlemarch</em> says I have the
5859 permission to copy only ten text selections into the memory every ten
5860 days, what that really means is that the eBook Reader has enabled the
5861 publisher to control how I use the book on my computer, far beyond the
5862 control that the law would enable.
5863 </p><p>
5864 The control comes instead from the code&#8212;from the technology
5865 within which the e-book <span class="quote">«<span class="quote">lives.</span>»</span> Though the e-book says that these are
5866 permissions, they are not the sort of <span class="quote">«<span class="quote">permissions</span>»</span> that most of us
5867 deal with. When a teenager gets <span class="quote">«<span class="quote">permission</span>»</span> to stay out till
5868 midnight, she knows (unless she's Cinderella) that she can stay out
5869 till 2 A.M., but will suffer a punishment if she's caught. But when
5870 the Adobe eBook Reader says I have the permission to make ten copies
5871 of the text into the computer's memory, that means that after I've
5872 made ten copies, the computer will not make any more. The same with
5873 the printing restrictions: After ten pages, the eBook Reader will not
5874 print any more pages.  It's the same with the silly restriction that
5875 says that you can't use the Read Aloud button to read my book
5876 aloud&#8212;it's not that the company will sue you if you do; instead,
5877 if you push the Read Aloud button with my book, the machine simply
5878 won't read aloud.
5879 </p><a class="indexterm" name="idp8947440"></a><a class="indexterm" name="idp8949152"></a><p>
5880
5881 These are <span class="emphasis"><em>controls</em></span>, not permissions. Imagine a
5882 world where the Marx Brothers sold word processing software that, when
5883 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
5884 sentence.
5885 </p><p>
5886 This is the future of copyright law: not so much copyright
5887 <span class="emphasis"><em>law</em></span> as copyright <span class="emphasis"><em>code</em></span>. The
5888 controls over access to content will not be controls that are ratified
5889 by courts; the controls over access to content will be controls that
5890 are coded by programmers. And whereas the controls that are built into
5891 the law are always to be checked by a judge, the controls that are
5892 built into the technology have no similar built-in check.
5893 </p><p>
5894 How significant is this? Isn't it always possible to get around the
5895 controls built into the technology? Software used to be sold with
5896 technologies that limited the ability of users to copy the software,
5897 but those were trivial protections to defeat. Why won't it be trivial
5898 to defeat these protections as well?
5899 </p><p>
5900 We've only scratched the surface of this story. Return to the Adobe
5901 eBook Reader.
5902 </p><a class="indexterm" name="idxalicesadventuresinwonderlandcarroll"></a><a class="indexterm" name="idxpublicdomainebookrestrictionson2"></a><p>
5903 Early in the life of the Adobe eBook Reader, Adobe suffered a public
5904 relations nightmare. Among the books that you could download for free
5905 on the Adobe site was a copy of <em class="citetitle">Alice's Adventures in
5906 Wonderland</em>.  This wonderful book is in the public
5907 domain. Yet when you clicked on Permissions for that book, you got the
5908 following report:
5909 </p><div class="figure"><a name="fig-1641"></a><p class="title"><b>Figure 10.17. List of the permissions for <span class="quote">«<span class="quote">Alice's Adventures in
5910 Wonderland</span>»</span>.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1641.png" align="middle" width="100%" alt="List of the permissions for «Alice's Adventures in Wonderland»."></td></tr></table></div></div></div><br class="figure-break"><p>
5911 Here was a public domain children's book that you were not allowed to
5912 copy, not allowed to lend, not allowed to give, and, as the
5913 <span class="quote">«<span class="quote">permissions</span>»</span> indicated, not allowed to <span class="quote">«<span class="quote">read aloud</span>»</span>!
5914 </p><p>
5915 The public relations nightmare attached to that final permission.
5916 For the text did not say that you were not permitted to use the Read
5917 Aloud button; it said you did not have the permission to read the book
5918 aloud. That led some people to think that Adobe was restricting the
5919 right of parents, for example, to read the book to their children, which
5920 seemed, to say the least, absurd.
5921 </p><p>
5922 Adobe responded quickly that it was absurd to think that it was trying
5923 to restrict the right to read a book aloud. Obviously it was only
5924 restricting the ability to use the Read Aloud button to have the book
5925 read aloud. But the question Adobe never did answer is this: Would
5926 Adobe thus agree that a consumer was free to use software to hack
5927 around the restrictions built into the eBook Reader? If some company
5928 (call it Elcomsoft) developed a program to disable the technological
5929 protection built into an Adobe eBook so that a blind person, say,
5930 could use a computer to read the book aloud, would Adobe agree that
5931 such a use of an eBook Reader was fair? Adobe didn't answer because
5932 the answer, however absurd it might seem, is no.
5933 </p><a class="indexterm" name="idp8966960"></a><a class="indexterm" name="idp8968288"></a><p>
5934 The point is not to blame Adobe. Indeed, Adobe is among the most
5935 innovative companies developing strategies to balance open access to
5936 content with incentives for companies to innovate. But Adobe's
5937 technology enables control, and Adobe has an incentive to defend this
5938 control.  That incentive is understandable, yet what it creates is
5939 often crazy.
5940 </p><a class="indexterm" name="idp8970384"></a><a class="indexterm" name="idp8971648"></a><p>
5941 To see the point in a particularly absurd context, consider a favorite
5942 story of mine that makes the same point.
5943 </p><a class="indexterm" name="idxaibo1"></a><a class="indexterm" name="idxroboticdog1"></a><a class="indexterm" name="idxsonyaibo1"></a><p>
5944 Consider the robotic dog made by Sony named <span class="quote">«<span class="quote">Aibo.</span>»</span> The Aibo
5945 learns tricks, cuddles, and follows you around. It eats only electricity
5946 and that doesn't leave that much of a mess (at least in your house).
5947 </p><p>
5948 The Aibo is expensive and popular. Fans from around the world
5949 have set up clubs to trade stories. One fan in particular set up a Web
5950 site to enable information about the Aibo dog to be shared. This fan set
5951
5952 up aibopet.com (and aibohack.com, but that resolves to the same site),
5953 and on that site he provided information about how to teach an Aibo
5954 to do tricks in addition to the ones Sony had taught it.
5955 </p><p>
5956 <span class="quote">«<span class="quote">Teach</span>»</span> here has a special meaning. Aibos are just cute computers.
5957 You teach a computer how to do something by programming it
5958 differently.  So to say that aibopet.com was giving information about
5959 how to teach the dog to do new tricks is just to say that aibopet.com
5960 was giving information to users of the Aibo pet about how to hack
5961 their computer <span class="quote">«<span class="quote">dog</span>»</span> to make it do new tricks (thus, aibohack.com).
5962 </p><a class="indexterm" name="idp8982272"></a><p>
5963 If you're not a programmer or don't know many programmers, the word
5964 <em class="citetitle">hack</em> has a particularly unfriendly
5965 connotation. Nonprogrammers hack bushes or weeds. Nonprogrammers in
5966 horror movies do even worse. But to programmers, or coders, as I call
5967 them, <em class="citetitle">hack</em> is a much more positive
5968 term. <em class="citetitle">Hack</em> just means code that enables the
5969 program to do something it wasn't originally intended or enabled to
5970 do. If you buy a new printer for an old computer, you might find the
5971 old computer doesn't run, or <span class="quote">«<span class="quote">drive,</span>»</span> the printer. If you discovered
5972 that, you'd later be happy to discover a hack on the Net by someone
5973 who has written a driver to enable the computer to drive the printer
5974 you just bought.
5975 </p><p>
5976 Some hacks are easy. Some are unbelievably hard. Hackers as a
5977 community like to challenge themselves and others with increasingly
5978 difficult tasks. There's a certain respect that goes with the talent to hack
5979 well. There's a well-deserved respect that goes with the talent to hack
5980 ethically.
5981 </p><p>
5982 The Aibo fan was displaying a bit of both when he hacked the program
5983 and offered to the world a bit of code that would enable the Aibo to
5984 dance jazz. The dog wasn't programmed to dance jazz. It was a clever
5985 bit of tinkering that turned the dog into a more talented creature
5986 than Sony had built.
5987 </p><a class="indexterm" name="idp8987280"></a><a class="indexterm" name="idp8988592"></a><a class="indexterm" name="idp8989904"></a><p>
5988 I've told this story in many contexts, both inside and outside the
5989 United States. Once I was asked by a puzzled member of the audience,
5990 is it permissible for a dog to dance jazz in the United States? We
5991 forget that stories about the backcountry still flow across much of
5992 the
5993
5994
5995 world. So let's just be clear before we continue: It's not a crime
5996 anywhere (anymore) to dance jazz. Nor is it a crime to teach your dog
5997 to dance jazz. Nor should it be a crime (though we don't have a lot to
5998 go on here) to teach your robot dog to dance jazz. Dancing jazz is a
5999 completely legal activity. One imagines that the owner of aibopet.com
6000 thought, <span class="emphasis"><em>What possible problem could there be with teaching
6001 a robot dog to dance?</em></span>
6002 </p><a class="indexterm" name="idp8993056"></a><p>
6003 Let's put the dog to sleep for a minute, and turn to a pony show&#8212;
6004 not literally a pony show, but rather a paper that a Princeton academic
6005 named Ed Felten prepared for a conference. This Princeton academic
6006 is well known and respected. He was hired by the government in the
6007 Microsoft case to test Microsoft's claims about what could and could
6008 not be done with its own code. In that trial, he demonstrated both his
6009 brilliance and his coolness. Under heavy badgering by Microsoft
6010 lawyers, Ed Felten stood his ground. He was not about to be bullied
6011 into being silent about something he knew very well.
6012 </p><p>
6013 But Felten's bravery was really tested in April 2001.<a href="#ftn.idp8995568" class="footnote" name="idp8995568"><sup class="footnote">[139]</sup></a>
6014 He and a group of colleagues were working on a paper to be submitted
6015 at conference.  The paper was intended to describe the weakness in an
6016 encryption system being developed by the Secure Digital Music
6017 Initiative as a technique to control the distribution of music.
6018 </p><p>
6019 The SDMI coalition had as its goal a technology to enable content
6020 owners to exercise much better control over their content than the
6021 Internet, as it originally stood, granted them. Using encryption, SDMI
6022 hoped to develop a standard that would allow the content owner to say
6023 <span class="quote">«<span class="quote">this music cannot be copied,</span>»</span> and have a computer respect that
6024 command.  The technology was to be part of a <span class="quote">«<span class="quote">trusted system</span>»</span> of
6025 control that would get content owners to trust the system of the
6026 Internet much more.
6027 </p><p>
6028 When SDMI thought it was close to a standard, it set up a competition.
6029 In exchange for providing contestants with the code to an
6030 SDMI-encrypted bit of content, contestants were to try to crack it
6031 and, if they did, report the problems to the consortium.
6032 </p><p>
6033
6034 Felten and his team figured out the encryption system quickly. He and
6035 the team saw the weakness of this system as a type: Many encryption
6036 systems would suffer the same weakness, and Felten and his team
6037 thought it worthwhile to point this out to those who study encryption.
6038 </p><p>
6039 Let's review just what Felten was doing. Again, this is the United
6040 States. We have a principle of free speech. We have this principle not
6041 just because it is the law, but also because it is a really great
6042 idea. A strongly protected tradition of free speech is likely to
6043 encourage a wide range of criticism. That criticism is likely, in
6044 turn, to improve the systems or people or ideas criticized.
6045 </p><p>
6046 What Felten and his colleagues were doing was publishing a paper
6047 describing the weakness in a technology. They were not spreading free
6048 music, or building and deploying this technology. The paper was an
6049 academic essay, unintelligible to most people. But it clearly showed the
6050 weakness in the SDMI system, and why SDMI would not, as presently
6051 constituted, succeed.
6052 </p><a class="indexterm" name="idxaibo2"></a><a class="indexterm" name="idxroboticdog2"></a><a class="indexterm" name="idxsonyaibo2"></a><p>
6053 What links these two, aibopet.com and Felten, is the letters they
6054 then received. Aibopet.com received a letter from Sony about the
6055 aibopet.com hack. Though a jazz-dancing dog is perfectly legal, Sony
6056 wrote:
6057 </p><div class="blockquote"><blockquote class="blockquote"><p>
6058 Your site contains information providing the means to circumvent
6059 AIBO-ware's copy protection protocol constituting a violation of the
6060 anti-circumvention provisions of the Digital Millennium Copyright Act.
6061 </p></blockquote></div><a class="indexterm" name="idp9015264"></a><a class="indexterm" name="idp9016576"></a><a class="indexterm" name="idp9017888"></a><p>
6062 And though an academic paper describing the weakness in a system
6063 of encryption should also be perfectly legal, Felten received a letter
6064 from an RIAA lawyer that read:
6065 </p><div class="blockquote"><blockquote class="blockquote"><p>
6066 Any  disclosure of information gained from participating in the
6067
6068 Public Challenge would be outside the scope of activities permitted by
6069 the Agreement and could subject you and your research team to actions
6070 under the Digital Millennium Copyright Act (<span class="quote">«<span class="quote">DMCA</span>»</span>).
6071 </p></blockquote></div><p>
6072 In both cases, this weirdly Orwellian law was invoked to control the
6073 spread of information. The Digital Millennium Copyright Act made
6074 spreading such information an offense.
6075 </p><p>
6076 The DMCA was enacted as a response to copyright owners' first fear
6077 about cyberspace. The fear was that copyright control was effectively
6078 dead; the response was to find technologies that might compensate.
6079 These new technologies would be copyright protection
6080 technologies&#8212; technologies to control the replication and
6081 distribution of copyrighted material. They were designed as
6082 <span class="emphasis"><em>code</em></span> to modify the original
6083 <span class="emphasis"><em>code</em></span> of the Internet, to reestablish some
6084 protection for copyright owners.
6085 </p><p>
6086 The DMCA was a bit of law intended to back up the protection of this
6087 code designed to protect copyrighted material. It was, we could say,
6088 <span class="emphasis"><em>legal code</em></span> intended to buttress
6089 <span class="emphasis"><em>software code</em></span> which itself was intended to
6090 support the <span class="emphasis"><em>legal code of copyright</em></span>.
6091 </p><p>
6092 But the DMCA was not designed merely to protect copyrighted works to
6093 the extent copyright law protected them. Its protection, that is, did
6094 not end at the line that copyright law drew. The DMCA regulated
6095 devices that were designed to circumvent copyright protection
6096 measures. It was designed to ban those devices, whether or not the use
6097 of the copyrighted material made possible by that circumvention would
6098 have been a copyright violation.
6099 </p><a class="indexterm" name="idp9026592"></a><a class="indexterm" name="idp9027408"></a><a class="indexterm" name="idp9028224"></a><p>
6100 Aibopet.com and Felten make the point. The Aibo hack circumvented a
6101 copyright protection system for the purpose of enabling the dog to
6102 dance jazz. That enablement no doubt involved the use of copyrighted
6103 material. But as aibopet.com's site was noncommercial, and the use did
6104 not enable subsequent copyright infringements, there's no doubt that
6105 aibopet.com's hack was fair use of Sony's copyrighted material. Yet
6106 fair use is not a defense to the DMCA. The question is not whether the
6107
6108 use of the copyrighted material was a copyright violation. The question
6109 is whether a copyright protection system was circumvented.
6110 </p><p>
6111 The threat against Felten was more attenuated, but it followed the
6112 same line of reasoning. By publishing a paper describing how a
6113 copyright protection system could be circumvented, the RIAA lawyer
6114 suggested, Felten himself was distributing a circumvention technology.
6115 Thus, even though he was not himself infringing anyone's copyright,
6116 his academic paper was enabling others to infringe others' copyright.
6117 </p><a class="indexterm" name="idp9031488"></a><a class="indexterm" name="idxcassettevcrs2"></a><p>
6118 The bizarreness of these arguments is captured in a cartoon drawn in
6119 1981 by Paul Conrad. At that time, a court in California had held that
6120 the VCR could be banned because it was a copyright-infringing
6121 technology: It enabled consumers to copy films without the permission
6122 of the copyright owner. No doubt there were uses of the technology
6123 that were legal: Fred Rogers, aka <span class="quote">«<span class="quote"><em class="citetitle">Mr. Rogers</em>,</span>»</span>
6124 for example, had testified in that case that he wanted people to feel
6125 free to tape Mr. Rogers' Neighborhood.
6126 <a class="indexterm" name="idp9035504"></a>
6127 </p><div class="blockquote"><blockquote class="blockquote"><p>
6128 Some public stations, as well as commercial stations, program the
6129 <span class="quote">«<span class="quote">Neighborhood</span>»</span> at hours when some children cannot use it. I think that
6130 it's a real service to families to be able to record such programs and
6131 show them at appropriate times. I have always felt that with the
6132 advent of all of this new technology that allows people to tape the
6133 <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>
6134 because that's what I produce, that they then become much more active
6135 in the programming of their family's television life. Very frankly, I
6136 am opposed to people being programmed by others. My whole approach in
6137 broadcasting has always been <span class="quote">«<span class="quote">You are an important person just the way
6138 you are. You can make healthy decisions.</span>»</span> Maybe I'm going on too long,
6139 but I just feel that anything that allows a person to be more active
6140 in the control of his or her life, in a healthy way, is
6141 important.<a href="#ftn.idp9039520" class="footnote" name="idp9039520"><sup class="footnote">[140]</sup></a>
6142 </p></blockquote></div><p>
6143
6144 Even though there were uses that were legal, because there were
6145 some uses that were illegal, the court held the companies producing
6146 the VCR responsible.
6147 </p><p>
6148 This led Conrad to draw the cartoon below, which we can adopt to
6149 the DMCA.
6150 <a class="indexterm" name="idp9045376"></a>
6151 </p><p>
6152 No argument I have can top this picture, but let me try to get close.
6153 </p><p>
6154 The anticircumvention provisions of the DMCA target copyright
6155 circumvention technologies. Circumvention technologies can be used for
6156 different ends. They can be used, for example, to enable massive
6157 pirating of copyrighted material&#8212;a bad end. Or they can be used
6158 to enable the use of particular copyrighted materials in ways that
6159 would be considered fair use&#8212;a good end.
6160 </p><a class="indexterm" name="idxhandguns"></a><p>
6161 A handgun can be used to shoot a police officer or a child. Most
6162
6163 would agree such a use is bad. Or a handgun can be used for target
6164 practice or to protect against an intruder. At least some would say that
6165 such a use would be good. It, too, is a technology that has both good
6166 and bad uses.
6167 </p><div class="figure"><a name="fig-1711-vcr-handgun-cartoonfig"></a><p class="title"><b>Figure 10.18. VCR/handgun cartoon.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="70%"><tr><td align="center"><img src="images/1711.png" align="middle" width="100%" alt="VCR/handgun cartoon."></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp9052576"></a><p>
6168 The obvious point of Conrad's cartoon is the weirdness of a world
6169 where guns are legal, despite the harm they can do, while VCRs (and
6170 circumvention technologies) are illegal. Flash: <span class="emphasis"><em>No one ever
6171 died from copyright circumvention</em></span>. Yet the law bans circumvention
6172 technologies absolutely, despite the potential that they might do some
6173 good, but permits guns, despite the obvious and tragic harm they do.
6174 </p><a class="indexterm" name="idp9054608"></a><a class="indexterm" name="idp9055856"></a><a class="indexterm" name="idp9057168"></a><a class="indexterm" name="idp9057984"></a><a class="indexterm" name="idp9058800"></a><p>
6175 The Aibo and RIAA examples demonstrate how copyright owners are
6176 changing the balance that copyright law grants. Using code, copyright
6177 owners restrict fair use; using the DMCA, they punish those who would
6178 attempt to evade the restrictions on fair use that they impose through
6179 code. Technology becomes a means by which fair use can be erased; the
6180 law of the DMCA backs up that erasing.
6181 </p><p>
6182 This is how <span class="emphasis"><em>code</em></span> becomes
6183 <span class="emphasis"><em>law</em></span>. The controls built into the technology of
6184 copy and access protection become rules the violation of which is also
6185 a violation of the law. In this way, the code extends the
6186 law&#8212;increasing its regulation, even if the subject it regulates
6187 (activities that would otherwise plainly constitute fair use) is
6188 beyond the reach of the law. Code becomes law; code extends the law;
6189 code thus extends the control that copyright owners effect&#8212;at
6190 least for those copyright holders with the lawyers who can write the
6191 nasty letters that Felten and aibopet.com received.
6192 </p><p>
6193 There is one final aspect of the interaction between architecture and
6194 law that contributes to the force of copyright's regulation. This is
6195 the ease with which infringements of the law can be detected. For
6196 contrary to the rhetoric common at the birth of cyberspace that on the
6197 Internet, no one knows you're a dog, increasingly, given changing
6198 technologies deployed on the Internet, it is easy to find the dog who
6199 committed a legal wrong. The technologies of the Internet are open to
6200 snoops as well as sharers, and the snoops are increasingly good at
6201 tracking down the identity of those who violate the rules.
6202 </p><p>
6203
6204
6205 For example, imagine you were part of a <em class="citetitle">Star Trek</em> fan club. You
6206 gathered every month to share trivia, and maybe to enact a kind of fan
6207 fiction about the show. One person would play Spock, another, Captain
6208 Kirk. The characters would begin with a plot from a real story, then
6209 simply continue it.<a href="#ftn.idp9064848" class="footnote" name="idp9064848"><sup class="footnote">[141]</sup></a>
6210 </p><p>
6211 Before the Internet, this was, in effect, a totally unregulated
6212 activity.  No matter what happened inside your club room, you would
6213 never be interfered with by the copyright police. You were free in
6214 that space to do as you wished with this part of our culture. You were
6215 allowed to build on it as you wished without fear of legal control.
6216 </p><a class="indexterm" name="idp9067904"></a><p>
6217 But if you moved your club onto the Internet, and made it generally
6218 available for others to join, the story would be very different. Bots
6219 scouring the Net for trademark and copyright infringement would
6220 quickly find your site. Your posting of fan fiction, depending upon
6221 the ownership of the series that you're depicting, could well inspire
6222 a lawyer's threat. And ignoring the lawyer's threat would be extremely
6223 costly indeed.  The law of copyright is extremely efficient. The
6224 penalties are severe, and the process is quick.
6225 </p><p>
6226 This change in the effective force of the law is caused by a change
6227 in the ease with which the law can be enforced. That change too shifts
6228 the law's balance radically. It is as if your car transmitted the speed at
6229 which you traveled at every moment that you drove; that would be just
6230 one step before the state started issuing tickets based upon the data you
6231 transmitted. That is, in effect, what is happening here.
6232 </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>
6233 So copyright's duration has increased dramatically&#8212;tripled in
6234 the past thirty years. And copyright's scope has increased as
6235 well&#8212;from regulating only publishers to now regulating just
6236 about everyone. And copyright's reach has changed, as every action
6237 becomes a copy and hence presumptively regulated. And as technologists
6238 find better ways
6239
6240 to control the use of content, and as copyright is increasingly
6241 enforced through technology, copyright's force changes, too. Misuse is
6242 easier to find and easier to control. This regulation of the creative
6243 process, which began as a tiny regulation governing a tiny part of the
6244 market for creative work, has become the single most important
6245 regulator of creativity there is. It is a massive expansion in the
6246 scope of the government's control over innovation and creativity; it
6247 would be totally unrecognizable to those who gave birth to copyright's
6248 control.
6249 </p><p>
6250 Still, in my view, all of these changes would not matter much if it
6251 weren't for one more change that we must also consider. This is a
6252 change that is in some sense the most familiar, though its significance
6253 and scope are not well understood. It is the one that creates precisely the
6254 reason to be concerned about all the other changes I have described.
6255 </p><p>
6256 This is the change in the concentration and integration of the media.
6257 In the past twenty years, the nature of media ownership has undergone
6258 a radical alteration, caused by changes in legal rules governing the
6259 media.  Before this change happened, the different forms of media were
6260 owned by separate media companies. Now, the media is increasingly
6261 owned by only a few companies. Indeed, after the changes that the FCC
6262 announced in June 2003, most expect that within a few years, we will
6263 live in a world where just three companies control more than 85 percent
6264 of the media.
6265 </p><p>
6266 These changes are of two sorts: the scope of concentration, and its
6267 nature.
6268 </p><a class="indexterm" name="idp9075664"></a><a class="indexterm" name="idp9076448"></a><a class="indexterm" name="idp9077232"></a><a class="indexterm" name="idp9078064"></a><a class="indexterm" name="idp9078880"></a><a class="indexterm" name="idp9079696"></a><p>
6269 Changes in scope are the easier ones to describe. As Senator John
6270 McCain summarized the data produced in the FCC's review of media
6271 ownership, <span class="quote">«<span class="quote">five companies control 85 percent of our media sources.</span>»</span><a href="#ftn.idp9081184" class="footnote" name="idp9081184"><sup class="footnote">[142]</sup></a>
6272 The five recording labels of Universal Music Group, BMG, Sony Music
6273 Entertainment, Warner Music Group, and EMI control 84.8 percent of the
6274 U.S. music market.<a href="#ftn.idp9082400" class="footnote" name="idp9082400"><sup class="footnote">[143]</sup></a>
6275 The <span class="quote">«<span class="quote">five largest cable companies pipe
6276 programming to 74 percent of the cable subscribers nationwide.</span>»</span><a href="#ftn.idp9084528" class="footnote" name="idp9084528"><sup class="footnote">[144]</sup></a>
6277 </p><p>
6278 The story with radio is even more dramatic. Before deregulation,
6279 the nation's largest radio broadcasting conglomerate owned fewer than
6280
6281 seventy-five stations. Today <span class="emphasis"><em>one</em></span> company owns
6282 more than 1,200 stations.  During that period of consolidation, the
6283 total number of radio owners dropped by 34 percent. Today, in most
6284 markets, the two largest broadcasters control 74 percent of that
6285 market's revenues. Overall, just four companies control 90 percent of
6286 the nation's radio advertising revenues.
6287 </p><a class="indexterm" name="idp9088080"></a><p>
6288 Newspaper ownership is becoming more concentrated as well.  Today,
6289 there are six hundred fewer daily newspapers in the United States than
6290 there were eighty years ago, and ten companies control half of the
6291 nation's circulation. There are twenty major newspaper publishers in
6292 the United States. The top ten film studios receive 99 percent of all
6293 film revenue. The ten largest cable companies account for 85 percent
6294 of all cable revenue. This is a market far from the free press the
6295 framers sought to protect. Indeed, it is a market that is quite well
6296 protected&#8212; by the market.
6297 </p><a class="indexterm" name="idp9089120"></a><p>
6298 Concentration in size alone is one thing. The more invidious
6299 change is in the nature of that concentration. As author James Fallows
6300 put it in a recent article about Rupert Murdoch,
6301 </p><div class="blockquote"><blockquote class="blockquote"><p>
6302 Murdoch's companies now constitute a production system
6303 unmatched in its integration. They supply content&#8212;Fox movies
6304 &#8230;  Fox TV shows &#8230; Fox-controlled sports broadcasts, plus
6305 newspapers and books. They sell the content to the public and to
6306 advertisers&#8212;in newspapers, on the broadcast network, on the
6307 cable channels. And they operate the physical distribution system
6308 through which the content reaches the customers. Murdoch's satellite
6309 systems now distribute News Corp. content in Europe and Asia; if
6310 Murdoch becomes DirecTV's largest single owner, that system will serve
6311 the same function in the United States.<a href="#ftn.idp9091920" class="footnote" name="idp9091920"><sup class="footnote">[145]</sup></a>
6312 </p></blockquote></div><p>
6313 The pattern with Murdoch is the pattern of modern media. Not
6314 just large companies owning many radio stations, but a few companies
6315 owning as many outlets of media as possible. A picture describes this
6316 pattern better than a thousand words could do:
6317 </p><div class="figure"><a name="fig-1761-pattern-modern-media-ownership"></a><p class="title"><b>Figure 10.19. Pattern of modern media ownership.</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="90%"><tr><td align="center"><img src="images/1761.png" align="middle" width="100%" alt="Pattern of modern media ownership."></td></tr></table></div></div></div><br class="figure-break"><p>
6318
6319 Does this concentration matter? Will it affect what is made, or
6320 what is distributed? Or is it merely a more efficient way to produce and
6321 distribute content?
6322 </p><p>
6323 My view was that concentration wouldn't matter. I thought it was
6324 nothing more than a more efficient financial structure. But now, after
6325 reading and listening to a barrage of creators try to convince me to the
6326 contrary, I am beginning to change my mind.
6327 </p><p>
6328 Here's a representative story that begins to suggest how this
6329 integration may matter.
6330 </p><a class="indexterm" name="idp9100528"></a><a class="indexterm" name="idp9101312"></a><a class="indexterm" name="idp9102096"></a><p>
6331 In 1969, Norman Lear created a pilot for <em class="citetitle">All in the Family</em>. He took
6332 the pilot to ABC. The network didn't like it. It was too edgy, they told
6333 Lear. Make it again. Lear made a second pilot, more edgy than the
6334 first. ABC was exasperated. You're missing the point, they told Lear.
6335 We wanted less edgy, not more.
6336 </p><p>
6337 Rather than comply, Lear simply took the show elsewhere. CBS
6338 was happy to have the series; ABC could not stop Lear from walking.
6339 The copyrights that Lear held assured an independence from network
6340 control.<a href="#ftn.idp9104528" class="footnote" name="idp9104528"><sup class="footnote">[146]</sup></a>
6341 </p><p>
6342
6343
6344 The network did not control those copyrights because the law forbade
6345 the networks from controlling the content they syndicated. The law
6346 required a separation between the networks and the content producers;
6347 that separation would guarantee Lear freedom. And as late as 1992,
6348 because of these rules, the vast majority of prime time
6349 television&#8212;75 percent of it&#8212;was <span class="quote">«<span class="quote">independent</span>»</span> of the
6350 networks.
6351 </p><p>
6352 In 1994, the FCC abandoned the rules that required this independence.
6353 After that change, the networks quickly changed the balance.  In 1985,
6354 there were twenty-five independent television production studios; in
6355 2002, only five independent television studios remained. <span class="quote">«<span class="quote">In 1992,
6356 only 15 percent of new series were produced for a network by a company
6357 it controlled. Last year, the percentage of shows produced by
6358 controlled companies more than quintupled to 77 percent.</span>»</span> <span class="quote">«<span class="quote">In 1992, 16
6359 new series were produced independently of conglomerate control, last
6360 year there was one.</span>»</span><a href="#ftn.idp9111136" class="footnote" name="idp9111136"><sup class="footnote">[147]</sup></a>
6361 In 2002, 75 percent of prime time television was owned by the networks
6362 that ran it. <span class="quote">«<span class="quote">In the ten-year period between 1992 and 2002, the number
6363 of prime time television hours per week produced by network studios
6364 increased over 200%, whereas the number of prime time television hours
6365 per week produced by independent studios decreased
6366 63%.</span>»</span><a href="#ftn.idp9113680" class="footnote" name="idp9113680"><sup class="footnote">[148]</sup></a>
6367 </p><a class="indexterm" name="idp9114672"></a><p>
6368 Today, another Norman Lear with another <em class="citetitle">All in the Family</em> would
6369 find that he had the choice either to make the show less edgy or to be
6370 fired: The content of any show developed for a network is increasingly
6371 owned by the network.
6372 </p><a class="indexterm" name="idp9116544"></a><a class="indexterm" name="idp9117360"></a><p>
6373 While the number of channels has increased dramatically, the ownership
6374 of those channels has narrowed to an ever smaller and smaller few. As
6375 Barry Diller said to Bill Moyers,
6376 </p><div class="blockquote"><blockquote class="blockquote"><p>
6377 Well, if you have companies that produce, that finance, that air on
6378 their channel and then distribute worldwide everything that goes
6379 through their controlled distribution system, then what you get is
6380 fewer and fewer actual voices participating in the process. [We
6381
6382 u]sed to have dozens and dozens of thriving independent production
6383 companies producing television programs. Now you have less than a
6384 handful.<a href="#ftn.idp9120032" class="footnote" name="idp9120032"><sup class="footnote">[149]</sup></a>
6385 </p></blockquote></div><p>
6386 This narrowing has an effect on what is produced. The product of such
6387 large and concentrated networks is increasingly homogenous.
6388 Increasingly safe. Increasingly sterile. The product of news shows
6389 from networks like this is increasingly tailored to the message the
6390 network wants to convey. This is not the communist party, though from
6391 the inside, it must feel a bit like the communist party. No one can
6392 question without risk of consequence&#8212;not necessarily banishment
6393 to Siberia, but punishment nonetheless. Independent, critical,
6394 different views are quashed. This is not the environment for a
6395 democracy.
6396 </p><a class="indexterm" name="idp9122992"></a><p>
6397 Economics itself offers a parallel that explains why this integration
6398 affects creativity. Clay Christensen has written about the <span class="quote">«<span class="quote">Innovator's
6399 Dilemma</span>»</span>: the fact that large traditional firms find it rational to ignore
6400 new, breakthrough technologies that compete with their core business.
6401 The same analysis could help explain why large, traditional media
6402 companies would find it rational to ignore new cultural trends.<a href="#ftn.idp9125696" class="footnote" name="idp9125696"><sup class="footnote">[150]</sup></a>
6403
6404 Lumbering giants not only don't, but should not, sprint. Yet if the
6405 field is only open to the giants, there will be far too little
6406 sprinting.
6407 <a class="indexterm" name="idp9129104"></a>
6408 </p><p>
6409 I don't think we know enough about the economics of the media
6410 market to say with certainty what concentration and integration will
6411 do. The efficiencies are important, and the effect on culture is hard to
6412 measure.
6413 </p><p>
6414 But there is a quintessentially obvious example that does strongly
6415 suggest the concern.
6416 </p><p>
6417 In addition to the copyright wars, we're in the middle of the drug
6418 wars. Government policy is strongly directed against the drug cartels;
6419 criminal and civil courts are filled with the consequences of this battle.
6420 </p><p>
6421 Let me hereby disqualify myself from any possible appointment to
6422 any position in government by saying I believe this war is a profound
6423 mistake. I am not pro drugs. Indeed, I come from a family once
6424
6425
6426 wrecked by drugs&#8212;though the drugs that wrecked my family were
6427 all quite legal. I believe this war is a profound mistake because the
6428 collateral damage from it is so great as to make waging the war
6429 insane.  When you add together the burdens on the criminal justice
6430 system, the desperation of generations of kids whose only real
6431 economic opportunities are as drug warriors, the queering of
6432 constitutional protections because of the constant surveillance this
6433 war requires, and, most profoundly, the total destruction of the legal
6434 systems of many South American nations because of the power of the
6435 local drug cartels, I find it impossible to believe that the marginal
6436 benefit in reduced drug consumption by Americans could possibly
6437 outweigh these costs.
6438 </p><p>
6439 You may not be convinced. That's fine. We live in a democracy, and it
6440 is through votes that we are to choose policy. But to do that, we
6441 depend fundamentally upon the press to help inform Americans about
6442 these issues.
6443 </p><a class="indexterm" name="idxadvertising3"></a><a class="indexterm" name="idxcommercials"></a><a class="indexterm" name="idxtelevisionadvertisingon"></a><a class="indexterm" name="idp9139808"></a><p>
6444 Beginning in 1998, the Office of National Drug Control Policy launched
6445 a media campaign as part of the <span class="quote">«<span class="quote">war on drugs.</span>»</span> The campaign produced
6446 scores of short film clips about issues related to illegal drugs. In
6447 one series (the Nick and Norm series) two men are in a bar, discussing
6448 the idea of legalizing drugs as a way to avoid some of the collateral
6449 damage from the war. One advances an argument in favor of drug
6450 legalization. The other responds in a powerful and effective way
6451 against the argument of the first. In the end, the first guy changes
6452 his mind (hey, it's television). The plug at the end is a damning
6453 attack on the pro-legalization campaign.
6454 </p><p>
6455 Fair enough. It's a good ad. Not terribly misleading. It delivers its
6456 message well. It's a fair and reasonable message.
6457 </p><p>
6458 But let's say you think it is a wrong message, and you'd like to run a
6459 countercommercial. Say you want to run a series of ads that try to
6460 demonstrate the extraordinary collateral harm that comes from the drug
6461 war. Can you do it?
6462 </p><p>
6463 Well, obviously, these ads cost lots of money. Assume you raise the
6464
6465 money. Assume a group of concerned citizens donates all the money in
6466 the world to help you get your message out. Can you be sure your
6467 message will be heard then?
6468 </p><a class="indexterm" name="idp9144192"></a><a class="indexterm" name="idp9145264"></a><a class="indexterm" name="idp9146080"></a><a class="indexterm" name="idp9147200"></a><p>
6469 No. You cannot. Television stations have a general policy of avoiding
6470 <span class="quote">«<span class="quote">controversial</span>»</span> ads. Ads sponsored by the government are deemed
6471 uncontroversial; ads disagreeing with the government are
6472 controversial.  This selectivity might be thought inconsistent with
6473 the First Amendment, but the Supreme Court has held that stations have
6474 the right to choose what they run. Thus, the major channels of
6475 commercial media will refuse one side of a crucial debate the
6476 opportunity to present its case.  And the courts will defend the
6477 rights of the stations to be this biased.<a href="#ftn.idp9149552" class="footnote" name="idp9149552"><sup class="footnote">[151]</sup></a>
6478 </p><a class="indexterm" name="idp9162400"></a><a class="indexterm" name="idp9163712"></a><p>
6479 I'd be happy to defend the networks' rights, as well&#8212;if we lived
6480 in a media market that was truly diverse. But concentration in the
6481 media throws that condition into doubt. If a handful of companies
6482 control access to the media, and that handful of companies gets to
6483 decide which political positions it will allow to be promoted on its
6484 channels, then in an obvious and important way, concentration
6485 matters. You might like the positions the handful of companies
6486 selects. But you should not like a world in which a mere few get to
6487 decide which issues the rest of us get to know about.
6488 </p><a class="indexterm" name="idp9166128"></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>
6489 There is something innocent and obvious about the claim of the
6490 copyright warriors that the government should <span class="quote">«<span class="quote">protect my property.</span>»</span>
6491 In the abstract, it is obviously true and, ordinarily, totally
6492 harmless. No sane sort who is not an anarchist could disagree.
6493 </p><p>
6494 But when we see how dramatically this <span class="quote">«<span class="quote">property</span>»</span> has changed&#8212;
6495 when we recognize how it might now interact with both technology and
6496 markets to mean that the effective constraint on the liberty to
6497 cultivate our culture is dramatically different&#8212;the claim begins
6498 to seem
6499
6500
6501 less innocent and obvious. Given (1) the power of technology to
6502 supplement the law's control, and (2) the power of concentrated
6503 markets to weaken the opportunity for dissent, if strictly enforcing
6504 the massively expanded <span class="quote">«<span class="quote">property</span>»</span> rights granted by copyright
6505 fundamentally changes the freedom within this culture to cultivate and
6506 build upon our past, then we have to ask whether this property should
6507 be redefined.
6508 </p><p>
6509 Not starkly. Or absolutely. My point is not that we should abolish
6510 copyright or go back to the eighteenth century. That would be a total
6511 mistake, disastrous for the most important creative enterprises within
6512 our culture today.
6513 </p><p>
6514 But there is a space between zero and one, Internet culture
6515 notwithstanding.  And these massive shifts in the effective power of
6516 copyright regulation, tied to increased concentration of the content
6517 industry and resting in the hands of technology that will increasingly
6518 enable control over the use of culture, should drive us to consider
6519 whether another adjustment is called for. Not an adjustment that
6520 increases copyright's power. Not an adjustment that increases its
6521 term. Rather, an adjustment to restore the balance that has
6522 traditionally defined copyright's regulation&#8212;a weakening of that
6523 regulation, to strengthen creativity.
6524 </p><p>
6525 Copyright law has not been a rock of Gibraltar. It's not a set of
6526 constant commitments that, for some mysterious reason, teenagers and
6527 geeks now flout. Instead, copyright power has grown dramatically in a
6528 short period of time, as the technologies of distribution and creation
6529 have changed and as lobbyists have pushed for more control by
6530 copyright holders. Changes in the past in response to changes in
6531 technology suggest that we may well need similar changes in the
6532 future. And these changes have to be <span class="emphasis"><em>reductions</em></span>
6533 in the scope of copyright, in response to the extraordinary increase
6534 in control that technology and the market enable.
6535 </p><p>
6536 For the single point that is lost in this war on pirates is a point that
6537 we see only after surveying the range of these changes. When you add
6538
6539 together the effect of changing law, concentrated markets, and
6540 changing technology, together they produce an astonishing conclusion:
6541 <span class="emphasis"><em>Never in our history have fewer had a legal right to control
6542 more of the development of our culture than now</em></span>.
6543 </p><p>
6544 Not when copyrights were perpetual, for when copyrights were
6545 perpetual, they affected only that precise creative work. Not when
6546 only publishers had the tools to publish, for the market then was much
6547 more diverse. Not when there were only three television networks, for
6548 even then, newspapers, film studios, radio stations, and publishers
6549 were independent of the networks. <span class="emphasis"><em>Never</em></span> has
6550 copyright protected such a wide range of rights, against as broad a
6551 range of actors, for a term that was remotely as long. This form of
6552 regulation&#8212;a tiny regulation of a tiny part of the creative
6553 energy of a nation at the founding&#8212;is now a massive regulation
6554 of the overall creative process. Law plus technology plus the market
6555 now interact to turn this historically benign regulation into the most
6556 significant regulation of culture that our free society has
6557 known.<a href="#ftn.idp9177680" class="footnote" name="idp9177680"><sup class="footnote">[152]</sup></a>
6558 </p><p>
6559 <span class="strong"><strong>This has been</strong></span> a long chapter. Its
6560 point can now be briefly stated.
6561 </p><p>
6562 At the start of this book, I distinguished between commercial and
6563 noncommercial culture. In the course of this chapter, I have
6564 distinguished between copying a work and transforming it. We can now
6565 combine these two distinctions and draw a clear map of the changes
6566 that copyright law has undergone.  In 1790, the law looked like this:
6567 </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>
6568 The act of publishing a map, chart, and book was regulated by
6569 copyright law. Nothing else was. Transformations were free. And as
6570 copyright attached only with registration, and only those who intended
6571
6572
6573 to benefit commercially would register, copying through publishing of
6574 noncommercial work was also free.
6575 </p><p>
6576 By the end of the nineteenth century, the law had changed to this:
6577 </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>
6578 Derivative works were now regulated by copyright law&#8212;if
6579 published, which again, given the economics of publishing at the time,
6580 means if offered commercially. But noncommercial publishing and
6581 transformation were still essentially free.
6582 </p><p>
6583 In 1909 the law changed to regulate copies, not publishing, and after
6584 this change, the scope of the law was tied to technology. As the
6585 technology of copying became more prevalent, the reach of the law
6586 expanded.  Thus by 1975, as photocopying machines became more common,
6587 we could say the law began to look like this:
6588 </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>
6589 The law was interpreted to reach noncommercial copying through, say,
6590 copy machines, but still much of copying outside of the commercial
6591 market remained free. But the consequence of the emergence of digital
6592 technologies, especially in the context of a digital network, means
6593 that the law now looks like this:
6594 </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>
6595 Every realm is governed by copyright law, whereas before most
6596 creativity was not. The law now regulates the full range of
6597 creativity&#8212;
6598
6599 commercial or not, transformative or not&#8212;with the same rules
6600 designed to regulate commercial publishers.
6601 </p><p>
6602 Obviously, copyright law is not the enemy. The enemy is regulation
6603 that does no good. So the question that we should be asking just now
6604 is whether extending the regulations of copyright law into each of
6605 these domains actually does any good.
6606 </p><p>
6607 I have no doubt that it does good in regulating commercial copying.
6608 But I also have no doubt that it does more harm than good when
6609 regulating (as it regulates just now) noncommercial copying and,
6610 especially, noncommercial transformation. And increasingly, for the
6611 reasons sketched especially in chapters
6612 <a class="xref" href="#recorders" title="Chapter 7. CHAPTER SEVEN: Recorders">7</a> and
6613 <a class="xref" href="#transformers" title="Chapter 8. CHAPTER EIGHT: Transformers">8</a>, one
6614 might well wonder whether it does more harm than good for commercial
6615 transformation.  More commercial transformative work would be created
6616 if derivative rights were more sharply restricted.
6617 </p><p>
6618 The issue is therefore not simply whether copyright is property. Of
6619 course copyright is a kind of <span class="quote">«<span class="quote">property,</span>»</span> and of course, as with any
6620 property, the state ought to protect it. But first impressions
6621 notwithstanding, historically, this property right (as with all
6622 property rights<a href="#ftn.idp9220096" class="footnote" name="idp9220096"><sup class="footnote">[153]</sup></a>)
6623 has been crafted to balance the important need to give authors and
6624 artists incentives with the equally important need to assure access to
6625 creative work. This balance has always been struck in light of new
6626 technologies.  And for almost half of our tradition, the <span class="quote">«<span class="quote">copyright</span>»</span>
6627 did not control <span class="emphasis"><em>at all</em></span> the freedom of others to
6628 build upon or transform a creative work. American culture was born
6629 free, and for almost 180 years our country consistently protected a
6630 vibrant and rich free culture.
6631 </p><a class="indexterm" name="idp9224432"></a><p>
6632 We achieved that free culture because our law respected important
6633 limits on the scope of the interests protected by <span class="quote">«<span class="quote">property.</span>»</span> The very
6634 birth of <span class="quote">«<span class="quote">copyright</span>»</span> as a statutory right recognized those limits, by
6635 granting copyright owners protection for a limited time only (the
6636 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
6637 animated by a similar concern that is increasingly under strain as the
6638 costs of exercising any fair use right become unavoidably high (the
6639 story of chapter <a class="xref" href="#recorders" title="Chapter 7. CHAPTER SEVEN: Recorders">7</a>). Adding
6640
6641 statutory rights where markets might stifle innovation is another
6642 familiar limit on the property right that copyright is (chapter <a class="xref" href="#transformers" title="Chapter 8. CHAPTER EIGHT: Transformers">8</a>). And
6643 granting archives and libraries a broad freedom to collect, claims of
6644 property notwithstanding, is a crucial part of guaranteeing the soul
6645 of a culture (chapter <a class="xref" href="#collectors" title="Chapter 9. CHAPTER NINE: Collectors">9</a>). Free cultures, like free markets, are built
6646 with property. But the nature of the property that builds a free
6647 culture is very different from the extremist vision that dominates the
6648 debate today.
6649 </p><p>
6650 Free culture is increasingly the casualty in this war on piracy. In
6651 response to a real, if not yet quantified, threat that the
6652 technologies of the Internet present to twentieth-century business
6653 models for producing and distributing culture, the law and technology
6654 are being transformed in a way that will undermine our tradition of
6655 free culture. The property right that is copyright is no longer the
6656 balanced right that it was, or was intended to be. The property right
6657 that is copyright has become unbalanced, tilted toward an extreme. The
6658 opportunity to create and transform becomes weakened in a world in
6659 which creation requires permission and creativity must check with a
6660 lawyer.
6661 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8356608" class="footnote"><p><a href="#idp8356608" class="para"><sup class="para">[118] </sup></a>
6662
6663 Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R.
6664 4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the
6665 Subcommittee on Courts, Civil Liberties, and the Administration of
6666 Justice of the Committee on the Judiciary of the House of
6667 Representatives, 97th Cong., 2nd sess. (1982): 65 (testimony of Jack
6668 Valenti).
6669 </p></div><div id="ftn.idp8363936" class="footnote"><p><a href="#idp8363936" class="para"><sup class="para">[119] </sup></a>
6670
6671 Lawyers speak of <span class="quote">«<span class="quote">property</span>»</span> not as an absolute thing, but as a bundle
6672 of rights that are sometimes associated with a particular
6673 object. Thus, my <span class="quote">«<span class="quote">property right</span>»</span> to my car gives me the right to
6674 exclusive use, but not the right to drive at 150 miles an hour. For
6675 the best effort to connect the ordinary meaning of <span class="quote">«<span class="quote">property</span>»</span> to
6676 <span class="quote">«<span class="quote">lawyer talk,</span>»</span> see Bruce Ackerman, <em class="citetitle">Private Property and the
6677 Constitution</em> (New Haven: Yale University Press, 1977), 26&#8211;27.
6678 </p></div><div id="ftn.idp8426496" class="footnote"><p><a href="#idp8426496" class="para"><sup class="para">[120] </sup></a>
6679
6680 By describing the way law affects the other three modalities, I don't
6681 mean to suggest that the other three don't affect law. Obviously, they
6682 do. Law's only distinction is that it alone speaks as if it has a
6683 right self-consciously to change the other three. The right of the
6684 other three is more timidly expressed.  See Lawrence Lessig, <em class="citetitle">Code: And
6685 Other Laws of Cyberspace</em> (New York: Basic Books, 1999): 90&#8211;95;
6686 Lawrence Lessig, <span class="quote">«<span class="quote">The New Chicago School,</span>»</span> <em class="citetitle">Journal of Legal Studies</em>,
6687 June 1998.
6688 </p></div><div id="ftn.idp8436768" class="footnote"><p><a href="#idp8436768" class="para"><sup class="para">[121] </sup></a>
6689
6690 Some people object to this way of talking about <span class="quote">«<span class="quote">liberty.</span>»</span> They object
6691 because their focus when considering the constraints that exist at any
6692 particular moment are constraints imposed exclusively by the
6693 government. For instance, if a storm destroys a bridge, these people
6694 think it is meaningless to say that one's liberty has been
6695 restrained. A bridge has washed out, and it's harder to get from one
6696 place to another. To talk about this as a loss of freedom, they say,
6697 is to confuse the stuff of politics with the vagaries of ordinary
6698 life.  I don't mean to deny the value in this narrower view, which
6699 depends upon the context of the inquiry. I do, however, mean to argue
6700 against any insistence that this narrower view is the only proper view
6701 of liberty. As I argued in <em class="citetitle">Code</em>, we come from a
6702 long tradition of political thought with a broader focus than the
6703 narrow question of what the government did when.  John Stuart Mill
6704 defended freedom of speech, for example, from the tyranny of narrow
6705 minds, not from the fear of government prosecution; John Stuart Mill,
6706 <em class="citetitle">On Liberty</em> (Indiana: Hackett Publishing Co.,
6707 1978), 19.  John R. Commons famously defended the economic freedom of
6708 labor from constraints imposed by the market; John R. Commons, <span class="quote">«<span class="quote">The
6709 Right to Work,</span>»</span> in Malcom Rutherford and Warren J. Samuels, eds.,
6710 <em class="citetitle">John R. Commons: Selected Essays</em> (London:
6711 Routledge: 1997), 62. The Americans with Disabilities Act increases
6712 the liberty of people with physical disabilities by changing the
6713 architecture of certain public places, thereby making access to those
6714 places easier; 42 <em class="citetitle">United States Code</em>, section
6715 12101 (2000).  Each of these interventions to change existing
6716 conditions changes the liberty of a particular group. The effect of
6717 those interventions should be accounted for in order to understand the
6718 effective liberty that each of these groups might face.
6719 <a class="indexterm" name="idp8442000"></a>
6720 <a class="indexterm" name="idp8442832"></a>
6721 <a class="indexterm" name="idp8443648"></a>
6722 <a class="indexterm" name="idp8444496"></a>
6723 </p></div><div id="ftn.idp8494720" class="footnote"><p><a href="#idp8494720" class="para"><sup class="para">[122] </sup></a>
6724
6725 See Geoffrey Smith, <span class="quote">«<span class="quote">Film vs. Digital: Can Kodak Build a Bridge?</span>»</span>
6726 BusinessWeek online, 2 August 1999, available at
6727 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #23</a>. For a more
6728 recent analysis of Kodak's place in the market, see Chana
6729 R. Schoenberger, <span class="quote">«<span class="quote">Can Kodak Make Up for Lost Moments?</span>»</span> Forbes.com, 6
6730 October 2003, available at
6731 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #24</a>.
6732 </p></div><div id="ftn.idp8507856" class="footnote"><p><a href="#idp8507856" class="para"><sup class="para">[123] </sup></a>
6733
6734 Fred Warshofsky, <em class="citetitle">The Patent Wars</em> (New York: Wiley, 1994), 170&#8211;71.
6735 </p></div><div id="ftn.idp8538672" class="footnote"><p><a href="#idp8538672" class="para"><sup class="para">[124] </sup></a>
6736
6737 See, for example, James Boyle, <span class="quote">«<span class="quote">A Politics of Intellectual Property:
6738 Environmentalism for the Net?</span>»</span> <em class="citetitle">Duke Law Journal</em> 47 (1997): 87.
6739 </p></div><div id="ftn.idp8608112" class="footnote"><p><a href="#idp8608112" class="para"><sup class="para">[125] </sup></a>
6740
6741 William W. Crosskey, <em class="citetitle">Politics and the Constitution in the History of
6742 the United States</em> (London: Cambridge University Press, 1953), vol. 1,
6743 485&#8211;86: <span class="quote">«<span class="quote">extinguish[ing], by plain implication of `the supreme
6744 Law of the Land,' <span class="emphasis"><em>the perpetual rights which authors had, or
6745 were supposed by some to have, under the Common Law</em></span></span>»</span>
6746 (emphasis added).
6747 <a class="indexterm" name="idp8610400"></a>
6748 </p></div><div id="ftn.idp8619968" class="footnote"><p><a href="#idp8619968" class="para"><sup class="para">[126] </sup></a>
6749
6750 Although 13,000 titles were published in the United States from 1790
6751 to 1799, only 556 copyright registrations were filed; John Tebbel, <em class="citetitle">A
6752 History of Book Publishing in the United States</em>, vol. 1, <em class="citetitle">The Creation
6753 of an Industry, 1630&#8211;1865</em> (New York: Bowker, 1972), 141. Of the 21,000
6754 imprints recorded before 1790, only twelve were copyrighted under the
6755 1790 act; William J. Maher, <em class="citetitle">Copyright Term, Retrospective Extension
6756 and the Copyright Law of 1790 in Historical Context</em>, 7&#8211;10 (2002),
6757 available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
6758 #25</a>.  Thus, the overwhelming majority of works fell
6759 immediately into the public domain. Even those works that were
6760 copyrighted fell into the public domain quickly, because the term of
6761 copyright was short. The initial term of copyright was fourteen years,
6762 with the option of renewal for an additional fourteen years. Copyright
6763 Act of May 31, 1790, §1, 1 stat. 124.  </p></div><div id="ftn.idp8628240" class="footnote"><p><a href="#idp8628240" class="para"><sup class="para">[127] </sup></a>
6764
6765 Few copyright holders ever chose to renew their copyrights. For
6766 instance, of the 25,006 copyrights registered in 1883, only 894 were
6767 renewed in 1910. For a year-by-year analysis of copyright renewal
6768 rates, see Barbara A. Ringer, <span class="quote">«<span class="quote">Study No. 31: Renewal of Copyright,</span>»</span>
6769 <em class="citetitle">Studies on Copyright</em>, vol. 1 (New York: Practicing Law Institute,
6770 1963), 618. For a more recent and comprehensive analysis, see William
6771 M. Landes and Richard A.  Posner, <span class="quote">«<span class="quote">Indefinitely Renewable Copyright,</span>»</span>
6772 <em class="citetitle">University of Chicago Law Review</em> 70 (2003): 471, 498&#8211;501, and
6773 accompanying figures.  </p></div><div id="ftn.idp8635376" class="footnote"><p><a href="#idp8635376" class="para"><sup class="para">[128] </sup></a>
6774
6775 See Ringer, ch. 9, n. 2.  </p></div><div id="ftn.idp8661584" class="footnote"><p><a href="#idp8661584" class="para"><sup class="para">[129] </sup></a>
6776
6777 These statistics are understated. Between the years 1910 and 1962 (the
6778 first year the renewal term was extended), the average term was never
6779 more than thirty-two years, and averaged thirty years. See Landes and
6780 Posner, <span class="quote">«<span class="quote">Indefinitely Renewable Copyright,</span>»</span> loc. cit.
6781 </p></div><div id="ftn.idp8701152" class="footnote"><p><a href="#idp8701152" class="para"><sup class="para">[130] </sup></a>
6782
6783 See Thomas Bender and David Sampliner, <span class="quote">«<span class="quote">Poets, Pirates, and the
6784 Creation of American Literature,</span>»</span> 29 <em class="citetitle">New York University Journal of
6785 International Law and Politics</em> 255 (1997), and James Gilraeth, ed.,
6786 Federal Copyright Records, 1790&#8211;1800 (U.S. G.P.O., 1987).
6787
6788 </p></div><div id="ftn.idp8718448" class="footnote"><p><a href="#idp8718448" class="para"><sup class="para">[131] </sup></a>
6789
6790 Jonathan Zittrain, <span class="quote">«<span class="quote">The Copyright Cage,</span>»</span> <em class="citetitle">Legal
6791 Affairs</em>, July/August 2003, available at
6792 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #26</a>.
6793 <a class="indexterm" name="idp8720944"></a>
6794 </p></div><div id="ftn.idp8722672" class="footnote"><p><a href="#idp8722672" class="para"><sup class="para">[132] </sup></a>
6795
6796 Professor Rubenfeld has presented a powerful constitutional argument
6797 about the difference that copyright law should draw (from the
6798 perspective of the First Amendment) between mere <span class="quote">«<span class="quote">copies</span>»</span> and
6799 derivative works. See Jed Rubenfeld, <span class="quote">«<span class="quote">The Freedom of Imagination:
6800 Copyright's Constitutionality,</span>»</span> <em class="citetitle">Yale Law
6801 Journal</em> 112 (2002): 1&#8211;60 (see especially
6802 pp. 53&#8211;59).
6803 <a class="indexterm" name="idp8724816"></a>
6804 </p></div><div id="ftn.idp8739056" class="footnote"><p><a href="#idp8739056" class="para"><sup class="para">[133] </sup></a>
6805
6806 This is a simplification of the law, but not much of one. The law
6807 certainly regulates more than <span class="quote">«<span class="quote">copies</span>»</span>&#8212;a public performance of a
6808 copyrighted song, for example, is regulated even though performance
6809 per se doesn't make a copy; 17 <em class="citetitle">United States Code</em>, section
6810 106(4). And it certainly sometimes doesn't regulate a <span class="quote">«<span class="quote">copy</span>»</span>; 17
6811 <em class="citetitle">United States Code</em>, section 112(a). But the presumption under the
6812 existing law (which regulates <span class="quote">«<span class="quote">copies;</span>»</span> 17 <em class="citetitle">United States Code</em>, section
6813 102) is that if there is a copy, there is a right.
6814 </p></div><div id="ftn.idp8752112" class="footnote"><p><a href="#idp8752112" class="para"><sup class="para">[134] </sup></a>
6815
6816 Thus, my argument is not that in each place that copyright law
6817 extends, we should repeal it. It is instead that we should have a good
6818 argument for its extending where it does, and should not determine its
6819 reach on the basis of arbitrary and automatic changes caused by
6820 technology.
6821 </p></div><div id="ftn.idp8805296" class="footnote"><p><a href="#idp8805296" class="para"><sup class="para">[135] </sup></a>
6822
6823 I don't mean <span class="quote">«<span class="quote">nature</span>»</span> in the sense that it couldn't be different, but
6824 rather that its present instantiation entails a copy. Optical networks
6825 need not make copies of content they transmit, and a digital network
6826 could be designed to delete anything it copies so that the same number
6827 of copies remain.
6828 </p></div><div id="ftn.idp8900704" class="footnote"><p><a href="#idp8900704" class="para"><sup class="para">[136] </sup></a>
6829
6830 See David Lange, <span class="quote">«<span class="quote">Recognizing the Public Domain,</span>»</span> <em class="citetitle">Law and
6831 Contemporary Problems</em> 44 (1981): 172&#8211;73.
6832 </p></div><div id="ftn.idp8903296" class="footnote"><p><a href="#idp8903296" class="para"><sup class="para">[137] </sup></a>
6833
6834 <a class="indexterm" name="idp8904000"></a>
6835 Ibid. See also Vaidhyanathan, <em class="citetitle">Copyrights and
6836 Copywrongs</em>, 1&#8211;3.
6837 </p></div><div id="ftn.idp8943152" class="footnote"><p><a href="#idp8943152" class="para"><sup class="para">[138] </sup></a>
6838
6839 In principle, a contract might impose a requirement on me. I might,
6840 for example, buy a book from you that includes a contract that says I
6841 will read it only three times, or that I promise to read it three
6842 times. But that obligation (and the limits for creating that
6843 obligation) would come from the contract, not from copyright law, and
6844 the obligations of contract would not necessarily pass to anyone who
6845 subsequently acquired the book.
6846 </p></div><div id="ftn.idp8995568" class="footnote"><p><a href="#idp8995568" class="para"><sup class="para">[139] </sup></a>
6847
6848 See Pamela Samuelson, <span class="quote">«<span class="quote">Anticircumvention Rules: Threat to Science,</span>»</span>
6849 <em class="citetitle">Science</em> 293 (2001): 2028; Brendan I. Koerner, <span class="quote">«<span class="quote">Play Dead: Sony Muzzles
6850 the Techies Who Teach a Robot Dog New Tricks,</span>»</span> <em class="citetitle">American Prospect</em>,
6851 January 2002; <span class="quote">«<span class="quote">Court Dismisses Computer Scientists' Challenge to
6852 DMCA,</span>»</span> <em class="citetitle">Intellectual Property Litigation Reporter</em>, 11 December 2001; Bill
6853 Holland, <span class="quote">«<span class="quote">Copyright Act Raising Free-Speech Concerns,</span>»</span> <em class="citetitle">Billboard</em>,
6854 May 2001; Janelle Brown, <span class="quote">«<span class="quote">Is the RIAA Running Scared?</span>»</span> Salon.com,
6855 April  2001; Electronic Frontier Foundation, <span class="quote">«<span class="quote">Frequently Asked
6856 Questions about <em class="citetitle">Felten and USENIX</em> v. <em class="citetitle">RIAA</em> Legal Case,</span>»</span> available at
6857 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #27</a>.
6858 <a class="indexterm" name="idp9002448"></a>
6859 </p></div><div id="ftn.idp9039520" class="footnote"><p><a href="#idp9039520" class="para"><sup class="para">[140] </sup></a>
6860
6861 <a class="indexterm" name="idp9040256"></a>
6862 <em class="citetitle">Sony Corporation of America</em> v. <em class="citetitle">Universal City Studios, Inc</em>., 464 U.S. 417,
6863 455 fn. 27 (1984). Rogers never changed his view about the VCR. See
6864 James Lardner, <em class="citetitle">Fast Forward: Hollywood, the Japanese, and the Onslaught of
6865 the VCR</em> (New York: W. W. Norton, 1987), 270&#8211;71.
6866 <a class="indexterm" name="idp8905296"></a>
6867 </p></div><div id="ftn.idp9064848" class="footnote"><p><a href="#idp9064848" class="para"><sup class="para">[141] </sup></a>
6868
6869 For an early and prescient analysis, see Rebecca Tushnet, <span class="quote">«<span class="quote">Legal Fictions,
6870 Copyright, Fan Fiction, and a New Common Law,</span>»</span> <em class="citetitle">Loyola of Los Angeles
6871 Entertainment Law Journal</em> 17 (1997): 651.
6872 </p></div><div id="ftn.idp9081184" class="footnote"><p><a href="#idp9081184" class="para"><sup class="para">[142] </sup></a>
6873
6874 FCC Oversight: Hearing Before the Senate Commerce, Science and
6875 Transportation Committee, 108th Cong., 1st sess. (22 May 2003)
6876 (statement of Senator John McCain).  </p></div><div id="ftn.idp9082400" class="footnote"><p><a href="#idp9082400" class="para"><sup class="para">[143] </sup></a>
6877
6878 Lynette Holloway, <span class="quote">«<span class="quote">Despite a Marketing Blitz, CD Sales Continue to
6879 Slide,</span>»</span> <em class="citetitle">New York Times</em>, 23 December 2002.
6880 </p></div><div id="ftn.idp9084528" class="footnote"><p><a href="#idp9084528" class="para"><sup class="para">[144] </sup></a>
6881
6882 Molly Ivins, <span class="quote">«<span class="quote">Media Consolidation Must Be Stopped,</span>»</span> <em class="citetitle">Charleston Gazette</em>,
6883 31 May 2003.
6884 </p></div><div id="ftn.idp9091920" class="footnote"><p><a href="#idp9091920" class="para"><sup class="para">[145] </sup></a>
6885
6886 James Fallows, <span class="quote">«<span class="quote">The Age of Murdoch,</span>»</span> <em class="citetitle">Atlantic Monthly</em> (September
6887 2003): 89.
6888 <a class="indexterm" name="idp9094032"></a>
6889 </p></div><div id="ftn.idp9104528" class="footnote"><p><a href="#idp9104528" class="para"><sup class="para">[146] </sup></a>
6890
6891 Leonard Hill, <span class="quote">«<span class="quote">The Axis of Access,</span>»</span> remarks before Weidenbaum Center
6892 Forum, <span class="quote">«<span class="quote">Entertainment Economics: The Movie Industry,</span>»</span> St. Louis,
6893 Missouri, 3 April 2003 (transcript of prepared remarks available at
6894 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #28</a>;
6895 for the Lear story, not included in the prepared remarks, see
6896 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #29</a>).
6897 </p></div><div id="ftn.idp9111136" class="footnote"><p><a href="#idp9111136" class="para"><sup class="para">[147] </sup></a>
6898
6899 NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media
6900 Ownership Before the Senate Commerce Committee, 108th Cong., 1st
6901 sess. (2003) (testimony of Gene Kimmelman on behalf of Consumers Union
6902 and the Consumer Federation of America), available at
6903 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #30</a>. Kimmelman
6904 quotes Victoria Riskin, president of Writers Guild of America, West,
6905 in her Remarks at FCC En Banc Hearing, Richmond, Virginia, 27 February
6906 2003.
6907 </p></div><div id="ftn.idp9113680" class="footnote"><p><a href="#idp9113680" class="para"><sup class="para">[148] </sup></a>
6908
6909 Ibid.
6910 </p></div><div id="ftn.idp9120032" class="footnote"><p><a href="#idp9120032" class="para"><sup class="para">[149] </sup></a>
6911
6912 <span class="quote">«<span class="quote">Barry Diller Takes on Media Deregulation,</span>»</span> <em class="citetitle">Now with Bill Moyers</em>, Bill
6913 Moyers, 25 April 2003, edited transcript available at
6914 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #31</a>.
6915 </p></div><div id="ftn.idp9125696" class="footnote"><p><a href="#idp9125696" class="para"><sup class="para">[150] </sup></a>
6916
6917 Clayton M. Christensen, <em class="citetitle">The Innovator's Dilemma: The
6918 Revolutionary National Bestseller that Changed the Way We Do Business</em>
6919 (Cambridge: Harvard Business School Press, 1997). Christensen
6920 acknowledges that the idea was first suggested by Dean Kim Clark. See
6921 Kim B. Clark, <span class="quote">«<span class="quote">The Interaction of Design Hierarchies and Market
6922 Concepts in Technological Evolution,</span>»</span> <em class="citetitle">Research Policy</em> 14 (1985):
6923 235&#8211;51. For a more recent study, see Richard Foster and Sarah
6924 Kaplan, <em class="citetitle">Creative Destruction: Why Companies That Are Built to Last
6925 Underperform the Market&#8212;and How to Successfully Transform Them</em>
6926 (New York: Currency/Doubleday, 2001).  </p></div><div id="ftn.idp9149552" class="footnote"><p><a href="#idp9149552" class="para"><sup class="para">[151] </sup></a>
6927
6928 <a class="indexterm" name="idp9150288"></a>
6929 <a class="indexterm" name="idp9151040"></a>
6930 <a class="indexterm" name="idp9151856"></a>
6931 <a class="indexterm" name="idp9152688"></a>
6932 <a class="indexterm" name="idp9153472"></a>
6933 <a class="indexterm" name="idp9154288"></a>
6934 <a class="indexterm" name="idp9155072"></a>
6935 The Marijuana Policy Project, in February 2003, sought to place ads
6936 that directly responded to the Nick and Norm series on stations within
6937 the Washington, D.C., area. Comcast rejected the ads as <span class="quote">«<span class="quote">against
6938 [their] policy.</span>»</span>  The local NBC affiliate, WRC, rejected the ads
6939 without reviewing them. The local ABC affiliate, WJOA, originally
6940 agreed to run the ads and accepted payment to do so, but later decided
6941 not to run the ads and returned the collected fees. Interview with
6942 Neal Levine, 15 October 2003.  These restrictions are, of course, not
6943 limited to drug policy. See, for example, Nat Ives, <span class="quote">«<span class="quote">On the
6944 Issue of an Iraq War, Advocacy Ads Meet with Rejection from TV
6945 Networks,</span>»</span> <em class="citetitle">New York Times</em>, 13 March
6946 2003, C4.  Outside of election-related air time there is very little
6947 that the FCC or the courts are willing to do to even the playing
6948 field. For a general overview, see Rhonda Brown, <span class="quote">«<span class="quote">Ad Hoc Access:
6949 The Regulation of Editorial Advertising on Television and
6950 Radio,</span>»</span> <em class="citetitle">Yale Law and Policy Review</em> 6
6951 (1988): 449&#8211;79, and for a more recent summary of the stance of
6952 the FCC and the courts, see <em class="citetitle">Radio-Television News Directors
6953 Association</em> v. <em class="citetitle">FCC</em>, 184 F. 3d 872
6954 (D.C. Cir. 1999). Municipal authorities exercise the same authority as
6955 the networks. In a recent example from San Francisco, the San
6956 Francisco transit authority rejected an ad that criticized its Muni
6957 diesel buses. Phillip Matier and Andrew Ross, <span class="quote">«<span class="quote">Antidiesel Group
6958 Fuming After Muni Rejects Ad,</span>»</span> SFGate.com, 16 June 2003,
6959 available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
6960 #32</a>. The ground was that the criticism was <span class="quote">«<span class="quote">too
6961 controversial.</span>»</span>
6962 </p></div><div id="ftn.idp9177680" class="footnote"><p><a href="#idp9177680" class="para"><sup class="para">[152] </sup></a>
6963
6964 <a class="indexterm" name="idp9178752"></a>
6965 Siva Vaidhyanathan captures a similar point in his <span class="quote">«<span class="quote">four surrenders</span>»</span> of
6966 copyright law in the digital age. See Vaidhyanathan, 159&#8211;60.
6967 </p></div><div id="ftn.idp9220096" class="footnote"><p><a href="#idp9220096" class="para"><sup class="para">[153] </sup></a>
6968
6969 <a class="indexterm" name="idp9220832"></a>
6970 It was the single most important contribution of the legal realist
6971 movement to demonstrate that all property rights are always crafted to
6972 balance public and private interests. See Thomas C. Grey, <span class="quote">«<span class="quote">The
6973 Disintegration of Property,</span>»</span> in <em class="citetitle">Nomos XXII: Property</em>, J. Roland
6974 Pennock and John W.  Chapman, eds. (New York: New York University
6975 Press, 1980).
6976 </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>
6977 <span class="strong"><strong>In a well-known</strong></span> short story by
6978 H. G. Wells, a mountain climber named Nunez trips (literally, down an
6979 ice slope) into an unknown and isolated valley in the Peruvian
6980 Andes.<a href="#ftn.idp9242592" class="footnote" name="idp9242592"><sup class="footnote">[154]</sup></a>
6981 The valley is extraordinarily beautiful, with <span class="quote">«<span class="quote">sweet water, pasture,
6982 an even climate, slopes of rich brown soil with tangles of a shrub
6983 that bore an excellent fruit.</span>»</span> But the villagers are all blind. Nunez
6984 takes this as an opportunity. <span class="quote">«<span class="quote">In the Country of the Blind,</span>»</span> he tells
6985 himself, <span class="quote">«<span class="quote">the One-Eyed Man is King.</span>»</span>  So he resolves to live with the
6986 villagers to explore life as a king.
6987 </p><p>
6988 Things don't go quite as he planned. He tries to explain the idea of
6989 sight to the villagers. They don't understand. He tells them they are
6990 <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.
6991 Indeed, as they increasingly notice the things he can't do (hear the
6992 sound of grass being stepped on, for example), they increasingly try
6993 to control him. He, in turn, becomes increasingly frustrated. <span class="quote">«<span class="quote">`You
6994 don't understand,' he cried, in a voice that was meant to be great and
6995 resolute, and which broke. `You are blind and I can see. Leave me
6996 alone!'</span>»</span>
6997 </p><p>
6998
6999 The villagers don't leave him alone. Nor do they see (so to speak) the
7000 virtue of his special power. Not even the ultimate target of his
7001 affection, a young woman who to him seems <span class="quote">«<span class="quote">the most beautiful thing in
7002 the whole of creation,</span>»</span> understands the beauty of sight. Nunez's
7003 description of what he sees <span class="quote">«<span class="quote">seemed to her the most poetical of
7004 fancies, and she listened to his description of the stars and the
7005 mountains and her own sweet white-lit beauty as though it was a guilty
7006 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
7007 only half understand, but she was mysteriously delighted.</span>»</span>
7008 </p><p>
7009 When Nunez announces his desire to marry his <span class="quote">«<span class="quote">mysteriously delighted</span>»</span>
7010 love, the father and the village object. <span class="quote">«<span class="quote">You see, my dear,</span>»</span> her
7011 father instructs, <span class="quote">«<span class="quote">he's an idiot. He has delusions. He can't do
7012 anything right.</span>»</span> They take Nunez to the village doctor.
7013 </p><p>
7014 After a careful examination, the doctor gives his opinion. <span class="quote">«<span class="quote">His brain
7015 is affected,</span>»</span> he reports.
7016 </p><p>
7017 <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
7018 called the eyes &#8230; are diseased &#8230; in such a way as to affect
7019 his brain.</span>»</span>
7020 </p><p>
7021 The doctor continues: <span class="quote">«<span class="quote">I think I may say with reasonable certainty
7022 that in order to cure him completely, all that we need to do is a
7023 simple and easy surgical operation&#8212;namely, to remove these
7024 irritant bodies [the eyes].</span>»</span>
7025 </p><p>
7026 <span class="quote">«<span class="quote">Thank Heaven for science!</span>»</span> says the father to the doctor. They inform
7027 Nunez of this condition necessary for him to be allowed his bride.
7028 (You'll have to read the original to learn what happens in the end. I
7029 believe in free culture, but never in giving away the end of a story.)
7030 </p><p>
7031 <span class="strong"><strong>It sometimes</strong></span> happens that the eggs
7032 of twins fuse in the mother's womb. That fusion produces a
7033 <span class="quote">«<span class="quote">chimera.</span>»</span> A chimera is a single creature with two sets
7034 of DNA. The DNA in the blood, for example, might be different from the
7035 DNA of the skin. This possibility is an underused
7036
7037
7038 plot for murder mysteries. <span class="quote">«<span class="quote">But the DNA shows with 100 percent
7039 certainty that she was not the person whose blood was at the
7040 scene. &#8230;</span>»</span>
7041 </p><a class="indexterm" name="idp9260464"></a><a class="indexterm" name="idp9261568"></a><p>
7042 Before I had read about chimeras, I would have said they were
7043 impossible.  A single person can't have two sets of DNA. The very idea
7044 of DNA is that it is the code of an individual. Yet in fact, not only
7045 can two individuals have the same set of DNA (identical twins), but
7046 one person can have two different sets of DNA (a chimera). Our
7047 understanding of a <span class="quote">«<span class="quote">person</span>»</span> should reflect this reality.
7048 </p><p>
7049 The more I work to understand the current struggle over copyright and
7050 culture, which I've sometimes called unfairly, and sometimes not
7051 unfairly enough, <span class="quote">«<span class="quote">the copyright wars,</span>»</span> the more I think we're dealing
7052 with a chimera. For example, in the battle over the question <span class="quote">«<span class="quote">What is
7053 p2p file sharing?</span>»</span> both sides have it right, and both sides have it
7054 wrong.  One side says, <span class="quote">«<span class="quote">File sharing is just like two kids taping each
7055 others' records&#8212;the sort of thing we've been doing for the last
7056 thirty years without any question at all.</span>»</span> That's true, at least in
7057 part. When I tell my best friend to try out a new CD that I've bought,
7058 but rather than just send the CD, I point him to my p2p server, that
7059 is, in all relevant respects, just like what every executive in every
7060 recording company no doubt did as a kid: sharing music.
7061 </p><p>
7062 But the description is also false in part. For when my p2p server is
7063 on a p2p network through which anyone can get access to my music, then
7064 sure, my friends can get access, but it stretches the meaning of
7065 <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
7066 get access. Whether or not sharing my music with my best friend is
7067 what <span class="quote">«<span class="quote">we have always been allowed to do,</span>»</span> we have not always been
7068 allowed to share music with <span class="quote">«<span class="quote">our ten thousand best friends.</span>»</span>
7069 </p><p>
7070 Likewise, when the other side says, <span class="quote">«<span class="quote">File sharing is just like walking
7071 into a Tower Records and taking a CD off the shelf and walking out
7072 with it,</span>»</span> that's true, at least in part. If, after Lyle Lovett
7073 (finally) releases a new album, rather than buying it, I go to Kazaa
7074 and find a free copy to take, that is very much like stealing a copy
7075 from Tower.
7076 <a class="indexterm" name="idp9270224"></a>
7077 </p><p>
7078
7079
7080 But it is not quite stealing from Tower. After all, when I take a CD
7081 from Tower Records, Tower has one less CD to sell. And when I take a
7082 CD from Tower Records, I get a bit of plastic and a cover, and
7083 something to show on my shelves. (And, while we're at it, we could
7084 also note that when I take a CD from Tower Records, the maximum fine
7085 that might be imposed on me, under California law, at least, is
7086 $1,000.  According to the RIAA, by contrast, if I download a ten-song
7087 CD, I'm liable for $1,500,000 in damages.)
7088 </p><p>
7089 The point is not that it is as neither side describes. The point is
7090 that it is both&#8212;both as the RIAA describes it and as Kazaa
7091 describes it. It is a chimera. And rather than simply denying what the
7092 other side asserts, we need to begin to think about how we should
7093 respond to this chimera. What rules should govern it?
7094 </p><p>
7095 We could respond by simply pretending that it is not a chimera. We
7096 could, with the RIAA, decide that every act of file sharing should be
7097 a felony. We could prosecute families for millions of dollars in
7098 damages just because file sharing occurred on a family computer. And
7099 we can get universities to monitor all computer traffic to make sure
7100 that no computer is used to commit this crime. These responses might
7101 be extreme, but each of them has either been proposed or actually
7102 implemented.<a href="#ftn.idp9274016" class="footnote" name="idp9274016"><sup class="footnote">[155]</sup></a>
7103
7104 </p><a class="indexterm" name="idp9285664"></a><p>
7105 Alternatively, we could respond to file sharing the way many kids act
7106 as though we've responded. We could totally legalize it. Let there be
7107 no copyright liability, either civil or criminal, for making
7108 copyrighted content available on the Net. Make file sharing like
7109 gossip: regulated, if at all, by social norms but not by law.
7110 </p><p>
7111 Either response is possible. I think either would be a mistake.
7112 Rather than embrace one of these two extremes, we should embrace
7113 something that recognizes the truth in both. And while I end this book
7114 with a sketch of a system that does just that, my aim in the next
7115 chapter is to show just how awful it would be for us to adopt the
7116 zero-tolerance extreme. I believe <span class="emphasis"><em>either</em></span> extreme
7117 would be worse than a reasonable alternative.  But I believe the
7118 zero-tolerance solution would be the worse of the two extremes.
7119 </p><p>
7120
7121
7122 Yet zero tolerance is increasingly our government's policy. In the
7123 middle of the chaos that the Internet has created, an extraordinary
7124 land grab is occurring. The law and technology are being shifted to
7125 give content holders a kind of control over our culture that they have
7126 never had before. And in this extremism, many an opportunity for new
7127 innovation and new creativity will be lost.
7128 </p><p>
7129 I'm not talking about the opportunities for kids to <span class="quote">«<span class="quote">steal</span>»</span> music. My
7130 focus instead is the commercial and cultural innovation that this war
7131 will also kill. We have never seen the power to innovate spread so
7132 broadly among our citizens, and we have just begun to see the
7133 innovation that this power will unleash. Yet the Internet has already
7134 seen the passing of one cycle of innovation around technologies to
7135 distribute content. The law is responsible for this passing. As the
7136 vice president for global public policy at one of these new
7137 innovators, eMusic.com, put it when criticizing the DMCA's added
7138 protection for copyrighted material,
7139 </p><div class="blockquote"><blockquote class="blockquote"><p>
7140 eMusic opposes music piracy. We are a distributor of copyrighted
7141 material, and we want to protect those rights.
7142 </p><p>
7143 But building a technology fortress that locks in the clout of the
7144 major labels is by no means the only way to protect copyright
7145 interests, nor is it necessarily the best. It is simply too early to
7146 answer that question. Market forces operating naturally may very well
7147 produce a totally different industry model.
7148 </p><p>
7149 This is a critical point. The choices that industry sectors make
7150 with respect to these systems will in many ways directly shape the
7151 market for digital media and the manner in which digital media
7152 are distributed. This in turn will directly influence the options
7153 that are available to consumers, both in terms of the ease with
7154 which they will be able to access digital media and the equipment
7155 that they will require to do so. Poor choices made this early in the
7156 game will retard the growth of this market, hurting everyone's
7157 interests.<a href="#ftn.idp9293840" class="footnote" name="idp9293840"><sup class="footnote">[156]</sup></a>
7158 </p></blockquote></div><p>
7159 In April 2001, eMusic.com was purchased by Vivendi Universal,
7160 one of <span class="quote">«<span class="quote">the major labels.</span>»</span> Its position on these matters has now
7161 changed.
7162 <a class="indexterm" name="idp9296944"></a>
7163 </p><p>
7164 Reversing our tradition of tolerance now will not merely quash
7165 piracy. It will sacrifice values that are important to this culture,
7166 and will kill opportunities that could be extraordinarily valuable.
7167 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp9242592" class="footnote"><p><a href="#idp9242592" class="para"><sup class="para">[154] </sup></a>
7168
7169 H. G. Wells, <span class="quote">«<span class="quote">The Country of the Blind</span>»</span> (1904, 1911). See H. G. Wells,
7170 <em class="citetitle">The Country of the Blind and Other Stories</em>, Michael Sherborne, ed. (New
7171 York: Oxford University Press, 1996).
7172 </p></div><div id="ftn.idp9274016" class="footnote"><p><a href="#idp9274016" class="para"><sup class="para">[155] </sup></a>
7173
7174 <a class="indexterm" name="idp9274720"></a>
7175 For an excellent summary, see the report prepared by GartnerG2 and the
7176 Berkman Center for Internet and Society at Harvard Law School,
7177 <span class="quote">«<span class="quote">Copyright and Digital Media in a Post-Napster World,</span>»</span> 27 June 2003,
7178 available at
7179 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
7180 #33</a>. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
7181 (D-Calif.) have introduced a bill that would treat unauthorized
7182 on-line copying as a felony offense with punishments ranging as high
7183 as five years imprisonment; see Jon Healey, <span class="quote">«<span class="quote">House Bill Aims to Up
7184 Stakes on Piracy,</span>»</span> <em class="citetitle">Los Angeles Times</em>, 17 July 2003, available at
7185 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #34</a>. Civil
7186 penalties are currently set at $150,000 per copied song. For a recent
7187 (and unsuccessful) legal challenge to the RIAA's demand that an ISP
7188 reveal the identity of a user accused of sharing more than 600 songs
7189 through a family computer, see <em class="citetitle">RIAA</em> v. <em class="citetitle">Verizon Internet Services (In
7190 re. Verizon Internet Services)</em>, 240 F.  Supp. 2d 24
7191 (D.D.C. 2003). Such a user could face liability ranging as high as $90
7192 million. Such astronomical figures furnish the RIAA with a powerful
7193 arsenal in its prosecution of file sharers. Settlements ranging from
7194 $12,000 to $17,500 for four students accused of heavy file sharing on
7195 university networks must have seemed a mere pittance next to the $98
7196 billion the RIAA could seek should the matter proceed to court. See
7197 Elizabeth Young, <span class="quote">«<span class="quote">Downloading Could Lead to Fines,</span>»</span> redandblack.com,
7198 August 2003, available at
7199 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #35</a>. For an
7200 example of the RIAA's targeting of student file sharing, and of the
7201 subpoenas issued to universities to reveal student file-sharer
7202 identities, see James Collins, <span class="quote">«<span class="quote">RIAA Steps Up Bid to Force BC, MIT to
7203 Name Students,</span>»</span> <em class="citetitle">Boston Globe</em>, 8 August 2003, D3, available at
7204 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #36</a>.
7205 <a class="indexterm" name="idp9283776"></a>
7206 <a class="indexterm" name="idp9284592"></a>
7207 </p></div><div id="ftn.idp9293840" class="footnote"><p><a href="#idp9293840" class="para"><sup class="para">[156] </sup></a>
7208
7209 WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital
7210 Entertainment on the Internet and Other Media: Hearing Before the
7211 Subcommittee on Telecommunications, Trade, and Consumer Protection,
7212 House Committee on Commerce, 106th Cong. 29 (1999) (statement of Peter
7213 Harter, vice president, Global Public Policy and Standards,
7214 EMusic.com), available in LEXIS, Federal Document Clearing House
7215 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>
7216 <span class="strong"><strong>To fight</strong></span> <span class="quote">«<span class="quote">piracy,</span>»</span> to
7217 protect <span class="quote">«<span class="quote">property,</span>»</span> the content industry has launched a
7218 war. Lobbying and lots of campaign contributions have now brought the
7219 government into this war. As with any war, this one will have both
7220 direct and collateral damage. As with any war of prohibition, these
7221 damages will be suffered most by our own people.
7222 </p><p>
7223 My aim so far has been to describe the consequences of this war, in
7224 particular, the consequences for <span class="quote">«<span class="quote">free culture.</span>»</span> But my aim now is to
7225 extend this description of consequences into an argument. Is this war
7226 justified?
7227 </p><p>
7228 In my view, it is not. There is no good reason why this time, for the
7229 first time, the law should defend the old against the new, just when the
7230 power of the property called <span class="quote">«<span class="quote">intellectual property</span>»</span> is at its greatest in
7231 our history.
7232 </p><a class="indexterm" name="idp9304592"></a><a class="indexterm" name="idp9305408"></a><p>
7233 Yet <span class="quote">«<span class="quote">common sense</span>»</span> does not see it this way. Common sense is still on
7234 the side of the Causbys and the content industry. The extreme claims
7235 of control in the name of property still resonate; the uncritical
7236 rejection of <span class="quote">«<span class="quote">piracy</span>»</span> still has play.
7237 </p><a class="indexterm" name="idp9307728"></a><p>
7238
7239 There will be many consequences of continuing this war. I want to
7240 describe just three. All three might be said to be unintended. I am quite
7241 confident the third is unintended. I'm less sure about the first two. The
7242 first two protect modern RCAs, but there is no Howard Armstrong in
7243 the wings to fight today's monopolists of culture.
7244 </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>
7245 In the next ten years we will see an explosion of digital
7246 technologies.  These technologies will enable almost anyone to capture
7247 and share content. Capturing and sharing content, of course, is what
7248 humans have done since the dawn of man. It is how we learn and
7249 communicate. But capturing and sharing through digital technology is
7250 different. The fidelity and power are different. You could send an
7251 e-mail telling someone about a joke you saw on Comedy Central, or you
7252 could send the clip. You could write an essay about the
7253 inconsistencies in the arguments of the politician you most love to
7254 hate, or you could make a short film that puts statement against
7255 statement. You could write a poem to express your love, or you could
7256 weave together a string&#8212;a mash-up&#8212; of songs from your
7257 favorite artists in a collage and make it available on the Net.
7258 </p><p>
7259 This digital <span class="quote">«<span class="quote">capturing and sharing</span>»</span> is in part an extension of the
7260 capturing and sharing that has always been integral to our culture,
7261 and in part it is something new. It is continuous with the Kodak, but
7262 it explodes the boundaries of Kodak-like technologies. The technology
7263 of digital <span class="quote">«<span class="quote">capturing and sharing</span>»</span> promises a world of extraordinarily
7264 diverse creativity that can be easily and broadly shared. And as that
7265 creativity is applied to democracy, it will enable a broad range of
7266 citizens to use technology to express and criticize and contribute to
7267 the culture all around.
7268 </p><p>
7269 Technology has thus given us an opportunity to do something with
7270 culture that has only ever been possible for individuals in small groups,
7271
7272
7273
7274 isolated from others. Think about an old man telling a story to a
7275 collection of neighbors in a small town. Now imagine that same
7276 storytelling extended across the globe.
7277 </p><p>
7278 Yet all this is possible only if the activity is presumptively legal. In
7279 the current regime of legal regulation, it is not. Forget file sharing for
7280 a moment. Think about your favorite amazing sites on the Net. Web
7281 sites that offer plot summaries from forgotten television shows; sites
7282 that catalog cartoons from the 1960s; sites that mix images and sound
7283 to criticize politicians or businesses; sites that gather newspaper articles
7284 on remote topics of science or culture. There is a vast amount of creative
7285 work spread across the Internet. But as the law is currently crafted, this
7286 work is presumptively illegal.
7287 </p><a class="indexterm" name="idp9315824"></a><a class="indexterm" name="idp9316608"></a><a class="indexterm" name="idp9317728"></a><a class="indexterm" name="idp9318848"></a><a class="indexterm" name="idp9319680"></a><p>
7288 That presumption will increasingly chill creativity, as the
7289 examples of extreme penalties for vague infringements continue to
7290 proliferate. It is impossible to get a clear sense of what's allowed
7291 and what's not, and at the same time, the penalties for crossing the
7292 line are astonishingly harsh.  The four students who were threatened
7293 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
7294 $98 billion lawsuit for building search engines that permitted songs
7295 to be copied. Yet World-Com&#8212;which defrauded investors of $11
7296 billion, resulting in a loss to investors in market capitalization of
7297 over $200 billion&#8212;received a fine of a mere $750
7298 million.<a href="#ftn.idp9322464" class="footnote" name="idp9322464"><sup class="footnote">[157]</sup></a>
7299 And under legislation being pushed in Congress right now, a doctor who
7300 negligently removes the wrong leg in an operation would be liable for
7301 no more than $250,000 in damages for pain and
7302 suffering.<a href="#ftn.idp9326352" class="footnote" name="idp9326352"><sup class="footnote">[158]</sup></a>
7303 Can common sense recognize the absurdity in a world where
7304 the maximum fine for downloading two songs off the Internet is more
7305 than the fine for a doctor's negligently butchering a patient?
7306 </p><a class="indexterm" name="idp9331200"></a><p>
7307 The consequence of this legal uncertainty, tied to these extremely
7308 high penalties, is that an extraordinary amount of creativity will
7309 either never be exercised, or never be exercised in the open. We drive
7310 this creative process underground by branding the modern-day Walt
7311 Disneys <span class="quote">«<span class="quote">pirates.</span>»</span> We make it impossible for businesses to rely upon a
7312 public domain, because the boundaries of the public domain are
7313 designed to
7314
7315
7316 be unclear. It never pays to do anything except pay for the right
7317 to create, and hence only those who can pay are allowed to create. As
7318 was the case in the Soviet Union, though for very different reasons,
7319 we will begin to see a world of underground art&#8212;not because the
7320 message is necessarily political, or because the subject is
7321 controversial, but because the very act of creating the art is legally
7322 fraught. Already, exhibits of <span class="quote">«<span class="quote">illegal art</span>»</span> tour the United
7323 States.<a href="#ftn.idp9334352" class="footnote" name="idp9334352"><sup class="footnote">[159]</sup></a>
7324  In what does their <span class="quote">«<span class="quote">illegality</span>»</span> consist?
7325 In the act of mixing the culture around us with an expression that is
7326 critical or reflective.
7327 </p><a class="indexterm" name="idp9338288"></a><p>
7328 Part of the reason for this fear of illegality has to do with the
7329 changing law. I described that change in detail in chapter
7330 <a class="xref" href="#property-i" title="Chapter 10. CHAPTER TEN: «Property»">10</a>. But an
7331 even bigger part has to do with the increasing ease with which
7332 infractions can be tracked. As users of file-sharing systems
7333 discovered in 2002, it is a trivial matter for copyright owners to get
7334 courts to order Internet service providers to reveal who has what
7335 content. It is as if your cassette tape player transmitted a list of
7336 the songs that you played in the privacy of your own home that anyone
7337 could tune into for whatever reason they chose.
7338 </p><a class="indexterm" name="idp9341104"></a><p>
7339 Never in our history has a painter had to worry about whether
7340 his painting infringed on someone else's work; but the modern-day
7341 painter, using the tools of Photoshop, sharing content on the Web,
7342 must worry all the time. Images are all around, but the only safe images
7343 to use in the act of creation are those purchased from Corbis or another
7344 image farm. And in purchasing, censoring happens. There is a free
7345 market in pencils; we needn't worry about its effect on creativity. But
7346 there is a highly regulated, monopolized market in cultural icons; the
7347 right to cultivate and transform them is not similarly free.
7348 </p><p>
7349 Lawyers rarely see this because lawyers are rarely empirical. As I
7350 described in chapter
7351 <a class="xref" href="#recorders" title="Chapter 7. CHAPTER SEVEN: Recorders">7</a>, in
7352 response to the story about documentary filmmaker Jon Else, I have
7353 been lectured again and again by lawyers who insist Else's use was
7354 fair use, and hence I am wrong to say that the law regulates such a
7355 use.
7356 </p><p>
7357
7358
7359 But fair use in America simply means the right to hire a lawyer to
7360 defend your right to create. And as lawyers love to forget, our system
7361 for defending rights such as fair use is astonishingly bad&#8212;in
7362 practically every context, but especially here. It costs too much, it
7363 delivers too slowly, and what it delivers often has little connection
7364 to the justice underlying the claim. The legal system may be tolerable
7365 for the very rich.  For everyone else, it is an embarrassment to a
7366 tradition that prides itself on the rule of law.
7367 </p><p>
7368 Judges and lawyers can tell themselves that fair use provides adequate
7369 <span class="quote">«<span class="quote">breathing room</span>»</span> between regulation by the law and the access the law
7370 should allow. But it is a measure of how out of touch our legal system
7371 has become that anyone actually believes this. The rules that
7372 publishers impose upon writers, the rules that film distributors
7373 impose upon filmmakers, the rules that newspapers impose upon
7374 journalists&#8212; these are the real laws governing creativity. And
7375 these rules have little relationship to the <span class="quote">«<span class="quote">law</span>»</span> with which judges
7376 comfort themselves.
7377 </p><p>
7378 For in a world that threatens $150,000 for a single willful
7379 infringement of a copyright, and which demands tens of thousands of
7380 dollars to even defend against a copyright infringement claim, and
7381 which would never return to the wrongfully accused defendant anything
7382 of the costs she suffered to defend her right to speak&#8212;in that
7383 world, the astonishingly broad regulations that pass under the name
7384 <span class="quote">«<span class="quote">copyright</span>»</span> silence speech and creativity. And in that world, it takes
7385 a studied blindness for people to continue to believe they live in a
7386 culture that is free.
7387 </p><p>
7388 As Jed Horovitz, the businessman behind Video Pipeline, said to me,
7389 </p><div class="blockquote"><blockquote class="blockquote"><p>
7390 We're losing [creative] opportunities right and left. Creative people
7391 are being forced not to express themselves. Thoughts are not being
7392 expressed. And while a lot of stuff may [still] be created, it still
7393 won't get distributed. Even if the stuff gets made &#8230; you're not
7394 going to get it distributed in the mainstream media unless
7395
7396 you've got a little note from a lawyer saying, <span class="quote">«<span class="quote">This has been
7397 cleared.</span>»</span> You're not even going to get it on PBS without that kind of
7398 permission. That's the point at which they control it.
7399 </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>
7400 The story of the last section was a crunchy-lefty
7401 story&#8212;creativity quashed, artists who can't speak, yada yada
7402 yada. Maybe that doesn't get you going. Maybe you think there's enough
7403 weird art out there, and enough expression that is critical of what
7404 seems to be just about everything.  And if you think that, you might
7405 think there's little in this story to worry you.
7406 </p><a class="indexterm" name="idxmarketconstraints2"></a><p>
7407 But there's an aspect of this story that is not lefty in any sense.
7408 Indeed, it is an aspect that could be written by the most extreme
7409 promarket ideologue. And if you're one of these sorts (and a special
7410 one at that, <a class="xref" href="#innovators" title="12.2. Constraining Innovators"></a> pages into a book like this), then you
7411 can see this other aspect by substituting <span class="quote">«<span class="quote">free market</span>»</span>
7412 every place I've spoken of <span class="quote">«<span class="quote">free culture.</span>»</span> The point is
7413 the same, even if the interests affecting culture are more
7414 fundamental.
7415 </p><p>
7416 The charge I've been making about the regulation of culture is the
7417 same charge free marketers make about regulating markets. Everyone, of
7418 course, concedes that some regulation of markets is necessary&#8212;at
7419 a minimum, we need rules of property and contract, and courts to
7420 enforce both. Likewise, in this culture debate, everyone concedes that
7421 at least some framework of copyright is also required. But both
7422 perspectives vehemently insist that just because some regulation is
7423 good, it doesn't follow that more regulation is better. And both
7424 perspectives are constantly attuned to the ways in which regulation
7425 simply enables the powerful industries of today to protect themselves
7426 against the competitors of tomorrow.
7427 </p><a class="indexterm" name="idp9363760"></a><a class="indexterm" name="idp9365952"></a><a class="indexterm" name="idp9366768"></a><p>
7428 This is the single most dramatic effect of the shift in regulatory
7429
7430 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
7431 threat of liability tied to the murky boundaries of copyright law is
7432 that innovators who want to innovate in this space can safely innovate
7433 only if they have the sign-off from last generation's dominant
7434 industries.  That lesson has been taught through a series of cases
7435 that were designed and executed to teach venture capitalists a
7436 lesson. That lesson&#8212;what former Napster CEO Hank Barry calls a
7437 <span class="quote">«<span class="quote">nuclear pall</span>»</span> that has fallen over the Valley&#8212;has been learned.
7438 </p><a class="indexterm" name="idp9370336"></a><a class="indexterm" name="idp9370976"></a><p>
7439 Consider one example to make the point, a story whose beginning
7440 I told in <em class="citetitle">The Future of Ideas</em> and which has progressed in a way that
7441 even I (pessimist extraordinaire) would never have predicted.
7442 </p><a class="indexterm" name="idxmpcom"></a><a class="indexterm" name="idxmympcom"></a><a class="indexterm" name="idp9375888"></a><p>
7443 In 1997, Michael Roberts launched a company called MP3.com.  MP3.com
7444 was keen to remake the music business. Their goal was not just to
7445 facilitate new ways to get access to content. Their goal was also to
7446 facilitate new ways to create content. Unlike the major labels,
7447 MP3.com offered creators a venue to distribute their creativity,
7448 without demanding an exclusive engagement from the creators.
7449 </p><a class="indexterm" name="idp9377504"></a><a class="indexterm" name="idxcdsprefdata"></a><p>
7450 To make this system work, however, MP3.com needed a reliable way to
7451 recommend music to its users. The idea behind this alternative was to
7452 leverage the revealed preferences of music listeners to recommend new
7453 artists. If you like Lyle Lovett, you're likely to enjoy Bonnie
7454 Raitt. And so on.
7455 </p><p>
7456 This idea required a simple way to gather data about user preferences.
7457 MP3.com came up with an extraordinarily clever way to gather this
7458 preference data. In January 2000, the company launched a service
7459 called my.mp3.com. Using software provided by MP3.com, a user would
7460 sign into an account and then insert into her computer a CD. The
7461 software would identify the CD, and then give the user access to that
7462 content.  So, for example, if you inserted a CD by Jill Sobule, then
7463 wherever you were&#8212;at work or at home&#8212;you could get access
7464 to that music once you signed into your account. The system was
7465 therefore a kind of music-lockbox.
7466 </p><p>
7467 No doubt some could use this system to illegally copy content. But
7468 that opportunity existed with or without MP3.com. The aim of the
7469
7470
7471 my.mp3.com service was to give users access to their own content, and
7472 as a by-product, by seeing the content they already owned, to discover
7473 the kind of content the users liked.
7474 </p><a class="indexterm" name="idp9382992"></a><p>
7475 To make this system function, however, MP3.com needed to copy 50,000
7476 CDs to a server. (In principle, it could have been the user who
7477 uploaded the music, but that would have taken a great deal of time,
7478 and would have produced a product of questionable quality.) It
7479 therefore purchased 50,000 CDs from a store, and started the process
7480 of making copies of those CDs. Again, it would not serve the content
7481 from those copies to anyone except those who authenticated that they
7482 had a copy of the CD they wanted to access. So while this was 50,000
7483 copies, it was 50,000 copies directed at giving customers something
7484 they had already bought.
7485 </p><a class="indexterm" name="idxvivendiuniversal"></a><a class="indexterm" name="idp9387376"></a><a class="indexterm" name="idp9388512"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitsinrecordingindustry3"></a><a class="indexterm" name="idp9391664"></a><a class="indexterm" name="idp9392784"></a><a class="indexterm" name="idp9393888"></a><p>
7486 Nine days after MP3.com launched its service, the five major labels,
7487 headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled
7488 with four of the five. Nine months later, a federal judge found
7489 MP3.com to have been guilty of willful infringement with respect to
7490 the fifth. Applying the law as it is, the judge imposed a fine against
7491 MP3.com of $118 million. MP3.com then settled with the remaining
7492 plaintiff, Vivendi Universal, paying over $54 million. Vivendi
7493 purchased MP3.com just about a year later.
7494 </p><p>
7495 That part of the story I have told before. Now consider its conclusion.
7496 </p><p>
7497 After Vivendi purchased MP3.com, Vivendi turned around and filed a
7498 malpractice lawsuit against the lawyers who had advised it that they
7499 had a good faith claim that the service they wanted to offer would be
7500 considered legal under copyright law. This lawsuit alleged that it
7501 should have been obvious that the courts would find this behavior
7502 illegal; therefore, this lawsuit sought to punish any lawyer who had
7503 dared to suggest that the law was less restrictive than the labels
7504 demanded.
7505 </p><a class="indexterm" name="idp9397264"></a><p>
7506 The clear purpose of this lawsuit (which was settled for an
7507 unspecified amount shortly after the story was no longer covered in
7508 the press) was to send an unequivocal message to lawyers advising
7509 clients in this
7510
7511 space: It is not just your clients who might suffer if the content
7512 industry directs its guns against them. It is also you. So those of
7513 you who believe the law should be less restrictive should realize that
7514 such a view of the law will cost you and your firm dearly.
7515 </p><a class="indexterm" name="idp9399792"></a><a class="indexterm" name="idp9401008"></a><a class="indexterm" name="idp9402256"></a><a class="indexterm" name="idp9403696"></a><a class="indexterm" name="idp9404512"></a><a class="indexterm" name="idxbmw"></a><a class="indexterm" name="idxcarsmpsoundsystemsin"></a><a class="indexterm" name="idp9408592"></a><a class="indexterm" name="idp9409376"></a><a class="indexterm" name="idp9410192"></a><a class="indexterm" name="idp9411008"></a><a class="indexterm" name="idp9411824"></a><a class="indexterm" name="idp9412640"></a><a class="indexterm" name="idxneedlemanrafe"></a><a class="indexterm" name="idp9415312"></a><a class="indexterm" name="idp9416128"></a><p>
7516 This strategy is not just limited to the lawyers. In April 2003,
7517 Universal and EMI brought a lawsuit against Hummer Winblad, the
7518 venture capital firm (VC) that had funded Napster at a certain stage of
7519 its development, its cofounder (John Hummer), and general partner
7520 (Hank Barry).<a href="#ftn.idp9417504" class="footnote" name="idp9417504"><sup class="footnote">[160]</sup></a>
7521 The claim here, as well, was that the VC should have recognized the
7522 right of the content industry to control how the industry should
7523 develop. They should be held personally liable for funding a company
7524 whose business turned out to be beyond the law. Here again, the aim of
7525 the lawsuit is transparent: Any VC now recognizes that if you fund a
7526 company whose business is not approved of by the dinosaurs, you are at
7527 risk not just in the marketplace, but in the courtroom as well.  Your
7528 investment buys you not only a company, it also buys you a lawsuit.
7529 So extreme has the environment become that even car manufacturers are
7530 afraid of technologies that touch content. In an article in
7531 <em class="citetitle">Business 2.0</em>, Rafe Needleman describes a
7532 discussion with BMW:
7533 </p><div class="blockquote"><blockquote class="blockquote"><p>
7534 I asked why, with all the storage capacity and computer power in
7535 the car, there was no way to play MP3 files. I was told that BMW
7536 engineers in Germany had rigged a new vehicle to play MP3s via
7537 the car's built-in sound system, but that the company's marketing
7538 and legal departments weren't comfortable with pushing this
7539 forward for release stateside. Even today, no new cars are sold in the
7540 United States with bona fide MP3 players. &#8230; <a href="#ftn.idp9350144" class="footnote" name="idp9350144"><sup class="footnote">[161]</sup></a>
7541 </p></blockquote></div><a class="indexterm" name="idp9427488"></a><a class="indexterm" name="idp9428736"></a><a class="indexterm" name="idp9429984"></a><p>
7542 This is the world of the mafia&#8212;filled with <span class="quote">«<span class="quote">your money or your
7543 life</span>»</span> offers, governed in the end not by courts but by the threats
7544 that the law empowers copyright holders to exercise. It is a system
7545 that will obviously and necessarily stifle new innovation. It is hard
7546 enough to start a company. It is impossibly hard if that company is
7547 constantly threatened by litigation.
7548 </p><p>
7549
7550
7551 The point is not that businesses should have a right to start illegal
7552 enterprises. The point is the definition of <span class="quote">«<span class="quote">illegal.</span>»</span> The law is a
7553 mess of uncertainty. We have no good way to know how it should apply
7554 to new technologies. Yet by reversing our tradition of judicial
7555 deference, and by embracing the astonishingly high penalties that
7556 copyright law imposes, that uncertainty now yields a reality which is
7557 far more conservative than is right. If the law imposed the death
7558 penalty for parking tickets, we'd not only have fewer parking tickets,
7559 we'd also have much less driving. The same principle applies to
7560 innovation. If innovation is constantly checked by this uncertain and
7561 unlimited liability, we will have much less vibrant innovation and
7562 much less creativity.
7563 </p><a class="indexterm" name="idp9434368"></a><p>
7564 The point is directly parallel to the crunchy-lefty point about fair
7565 use. Whatever the <span class="quote">«<span class="quote">real</span>»</span> law is, realism about the effect of law in
7566 both contexts is the same. This wildly punitive system of regulation
7567 will systematically stifle creativity and innovation. It will protect
7568 some industries and some creators, but it will harm industry and
7569 creativity generally. Free market and free culture depend upon vibrant
7570 competition.  Yet the effect of the law today is to stifle just this
7571 kind of competition.  The effect is to produce an overregulated
7572 culture, just as the effect of too much control in the market is to
7573 produce an overregulated-regulated market.
7574 </p><p>
7575 The building of a permission culture, rather than a free culture, is
7576 the first important way in which the changes I have described will
7577 burden innovation. A permission culture means a lawyer's
7578 culture&#8212;a culture in which the ability to create requires a call
7579 to your lawyer. Again, I am not antilawyer, at least when they're kept
7580 in their proper place. I am certainly not antilaw. But our profession
7581 has lost the sense of its limits. And leaders in our profession have
7582 lost an appreciation of the high costs that our profession imposes
7583 upon others. The inefficiency of the law is an embarrassment to our
7584 tradition. And while I believe our profession should therefore do
7585 everything it can to make the law more efficient, it should at least
7586 do everything it can to limit the reach of the
7587
7588 law where the law is not doing any good. The transaction costs buried
7589 within a permission culture are enough to bury a wide range of
7590 creativity.  Someone needs to do a lot of justifying to justify that
7591 result.
7592 </p><p>
7593 <span class="strong"><strong>The uncertainty</strong></span> of the law is one
7594 burden on innovation. There is a second burden that operates more
7595 directly. This is the effort by many in the content industry to use
7596 the law to directly regulate the technology of the Internet so that it
7597 better protects their content.
7598 </p><p>
7599 The motivation for this response is obvious. The Internet enables the
7600 efficient spread of content. That efficiency is a feature of the
7601 Internet's design. But from the perspective of the content industry,
7602 this feature is a <span class="quote">«<span class="quote">bug.</span>»</span> The efficient spread of content means that
7603 content distributors have a harder time controlling the distribution
7604 of content.  One obvious response to this efficiency is thus to make
7605 the Internet less efficient. If the Internet enables <span class="quote">«<span class="quote">piracy,</span>»</span> then,
7606 this response says, we should break the kneecaps of the Internet.
7607 </p><a class="indexterm" name="idp9441520"></a><p>
7608 The examples of this form of legislation are many. At the urging of
7609 the content industry, some in Congress have threatened legislation that
7610 would require computers to determine whether the content they access
7611 is protected or not, and to disable the spread of protected content.<a href="#ftn.idp9442880" class="footnote" name="idp9442880"><sup class="footnote">[162]</sup></a>
7612 Congress has already launched proceedings to explore a mandatory
7613 <span class="quote">«<span class="quote">broadcast flag</span>»</span> that would be required on any device capable of
7614 transmitting digital video (i.e., a computer), and that would disable
7615 the copying of any content that is marked with a broadcast flag. Other
7616 members of Congress have proposed immunizing content providers from
7617 liability for technology they might deploy that would hunt down
7618 copyright violators and disable their machines.<a href="#ftn.idp9445824" class="footnote" name="idp9445824"><sup class="footnote">[163]</sup></a>
7619 </p><p>
7620 In one sense, these solutions seem sensible. If the problem is the
7621 code, why not regulate the code to remove the problem. But any
7622 regulation of technical infrastructure will always be tuned to the
7623 particular technology of the day. It will impose significant burdens
7624 and costs on
7625
7626 the technology, but will likely be eclipsed by advances around exactly
7627 those requirements.
7628 </p><a class="indexterm" name="idp9447936"></a><p>
7629 In March 2002, a broad coalition of technology companies, led by
7630 Intel, tried to get Congress to see the harm that such legislation
7631 would impose.<a href="#ftn.idp9449136" class="footnote" name="idp9449136"><sup class="footnote">[164]</sup></a>
7632 Their argument was obviously not that copyright should not be
7633 protected. Instead, they argued, any protection should not do more
7634 harm than good.
7635 </p><p>
7636 <span class="strong"><strong>There is one</strong></span> more obvious way in
7637 which this war has harmed innovation&#8212;again, a story that will be
7638 quite familiar to the free market crowd.
7639 </p><p>
7640 Copyright may be property, but like all property, it is also a form
7641 of regulation. It is a regulation that benefits some and harms others.
7642 When done right, it benefits creators and harms leeches. When done
7643 wrong, it is regulation the powerful use to defeat competitors.
7644 </p><a class="indexterm" name="idp9452784"></a><a class="indexterm" name="idp9453856"></a><a class="indexterm" name="idp9454672"></a><a class="indexterm" name="idp9455488"></a><p>
7645 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
7646 regulation, and subject to important qualifications outlined by
7647 Jessica Litman in her book <em class="citetitle">Digital
7648 Copyright</em>,<a href="#ftn.idp9458368" class="footnote" name="idp9458368"><sup class="footnote">[165]</sup></a>
7649 overall this history of copyright is not bad. As chapter
7650 <a class="xref" href="#property-i" title="Chapter 10. CHAPTER TEN: «Property»">10</a> details,
7651 when new technologies have come along, Congress has struck a balance
7652 to assure that the new is protected from the old. Compulsory, or
7653 statutory, licenses have been one part of that strategy. Free use (as
7654 in the case of the VCR) has been another.
7655 </p><p>
7656 But that pattern of deference to new technologies has now changed
7657 with the rise of the Internet. Rather than striking a balance between
7658 the claims of a new technology and the legitimate rights of content
7659 creators, both the courts and Congress have imposed legal restrictions
7660 that will have the effect of smothering the new to benefit the old.
7661 </p><a class="indexterm" name="idxinternetradioon"></a><a class="indexterm" name="idxradiooninternet"></a><p>
7662 The response by the courts has been fairly universal.<a href="#ftn.idp9467408" class="footnote" name="idp9467408"><sup class="footnote">[166]</sup></a>
7663 It has been mirrored in the responses threatened and actually
7664 implemented by Congress. I won't catalog all of those responses
7665 here.<a href="#ftn.idp9471728" class="footnote" name="idp9471728"><sup class="footnote">[167]</sup></a>
7666 But there is one example that captures the flavor of them all. This is
7667 the story of the demise of Internet radio.
7668 </p><a class="indexterm" name="idp9478480"></a><a class="indexterm" name="idp9479568"></a><p>
7669
7670
7671 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
7672 artist doesn't get paid for that <span class="quote">«<span class="quote">radio performance</span>»</span> unless he or she
7673 is also the composer. So, for example if Marilyn Monroe had recorded a
7674 version of <span class="quote">«<span class="quote">Happy Birthday</span>»</span>&#8212;to memorialize her famous
7675 performance before President Kennedy at Madison Square Garden&#8212;
7676 then whenever that recording was played on the radio, the current
7677 copyright owners of <span class="quote">«<span class="quote">Happy Birthday</span>»</span> would get some money, whereas
7678 Marilyn Monroe would not.
7679 </p><p>
7680 The reasoning behind this balance struck by Congress makes some
7681 sense. The justification was that radio was a kind of advertising. The
7682 recording artist thus benefited because by playing her music, the
7683 radio station was making it more likely that her records would be
7684 purchased.  Thus, the recording artist got something, even if only
7685 indirectly.  Probably this reasoning had less to do with the result
7686 than with the power of radio stations: Their lobbyists were quite good
7687 at stopping any efforts to get Congress to require compensation to the
7688 recording artists.
7689 </p><p>
7690 Enter Internet radio. Like regular radio, Internet radio is a
7691 technology to stream content from a broadcaster to a listener. The
7692 broadcast travels across the Internet, not across the ether of radio
7693 spectrum.  Thus, I can <span class="quote">«<span class="quote">tune in</span>»</span> to an Internet radio station in
7694 Berlin while sitting in San Francisco, even though there's no way for
7695 me to tune in to a regular radio station much beyond the San Francisco
7696 metropolitan area.
7697 </p><p>
7698 This feature of the architecture of Internet radio means that there
7699 are potentially an unlimited number of radio stations that a user
7700 could tune in to using her computer, whereas under the existing
7701 architecture for broadcast radio, there is an obvious limit to the
7702 number of broadcasters and clear broadcast frequencies. Internet radio
7703 could therefore be more competitive than regular radio; it could
7704 provide a wider range of selections. And because the potential
7705 audience for Internet radio is the whole world, niche stations could
7706 easily develop and market their content to a relatively large number
7707 of users worldwide. According to some estimates, more than eighty
7708 million users worldwide have tuned in to this new form of radio.
7709 </p><a class="indexterm" name="idp9487232"></a><p>
7710
7711
7712 Internet radio is thus to radio what FM was to AM. It is an
7713 improvement potentially vastly more significant than the FM
7714 improvement over AM, since not only is the technology better, so, too,
7715 is the competition. Indeed, there is a direct parallel between the
7716 fight to establish FM radio and the fight to protect Internet
7717 radio. As one author describes Howard Armstrong's struggle to enable
7718 FM radio,
7719 </p><div class="blockquote"><blockquote class="blockquote"><p>
7720 An almost unlimited number of FM stations was possible in the
7721 shortwaves, thus ending the unnatural restrictions imposed on radio in
7722 the crowded longwaves. If FM were freely developed, the number of
7723 stations would be limited only by economics and competition rather
7724 than by technical restrictions. &#8230; Armstrong likened the situation
7725 that had grown up in radio to that following the invention of the
7726 printing press, when governments and ruling interests attempted to
7727 control this new instrument of mass communications by imposing
7728 restrictive licenses on it. This tyranny was broken only when it
7729 became possible for men freely to acquire printing presses and freely
7730 to run them. FM in this sense was as great an invention as the
7731 printing presses, for it gave radio the opportunity to strike off its
7732 shackles.<a href="#ftn.idp9423744" class="footnote" name="idp9423744"><sup class="footnote">[168]</sup></a>
7733 </p></blockquote></div><p>
7734 This potential for FM radio was never realized&#8212;not
7735 because Armstrong was wrong about the technology, but because he
7736 underestimated the power of <span class="quote">«<span class="quote">vested interests, habits, customs and
7737 legislation</span>»</span><a href="#ftn.idp9492288" class="footnote" name="idp9492288"><sup class="footnote">[169]</sup></a>
7738 to retard the growth of this competing technology.
7739 </p><p>
7740 Now the very same claim could be made about Internet radio. For
7741 again, there is no technical limitation that could restrict the number of
7742 Internet radio stations. The only restrictions on Internet radio are
7743 those imposed by the law. Copyright law is one such law. So the first
7744 question we should ask is, what copyright rules would govern Internet
7745 radio?
7746 </p><a class="indexterm" name="idxartistsrecordingindustrypaymentsto3"></a><a class="indexterm" name="idp9495904"></a><a class="indexterm" name="idp9497008"></a><a class="indexterm" name="idp9498112"></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>
7747 But here the power of the lobbyists is reversed. Internet radio is a
7748 new industry. The recording artists, on the other hand, have a very
7749
7750
7751 powerful lobby, the RIAA. Thus when Congress considered the phenomenon
7752 of Internet radio in 1995, the lobbyists had primed Congress to adopt
7753 a different rule for Internet radio than the rule that applies to
7754 terrestrial radio. While terrestrial radio does not have to pay our
7755 hypothetical Marilyn Monroe when it plays her hypothetical recording
7756 of <span class="quote">«<span class="quote">Happy Birthday</span>»</span> on the air, <span class="emphasis"><em>Internet radio
7757 does</em></span>. Not only is the law not neutral toward Internet
7758 radio&#8212;the law actually burdens Internet radio more than it
7759 burdens terrestrial radio.
7760 </p><p>
7761 This financial burden is not slight. As Harvard law professor
7762 William Fisher estimates, if an Internet radio station distributed adfree
7763 popular music to (on average) ten thousand listeners, twenty-four
7764 hours a day, the total artist fees that radio station would owe would be
7765 over $1 million a year.<a href="#ftn.idp9511808" class="footnote" name="idp9511808"><sup class="footnote">[170]</sup></a>
7766 A regular radio station broadcasting the same content would pay no
7767 equivalent fee.
7768 </p><a class="indexterm" name="idp9517472"></a><a class="indexterm" name="idp9518864"></a><a class="indexterm" name="idp9520256"></a><a class="indexterm" name="idp9521584"></a><a class="indexterm" name="idp9522960"></a><p>
7769 The burden is not financial only. Under the original rules that were
7770 proposed, an Internet radio station (but not a terrestrial radio
7771 station) would have to collect the following data from <span class="emphasis"><em>every
7772 listening transaction</em></span>:
7773 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><p>
7774 name of the service;
7775 </p></li><li class="listitem"><p>
7776 channel of the program (AM/FM stations use station ID);
7777 </p></li><li class="listitem"><p>
7778 type of program (archived/looped/live);
7779 </p></li><li class="listitem"><p>
7780 date of transmission;
7781 </p></li><li class="listitem"><p>
7782 time of transmission;
7783 </p></li><li class="listitem"><p>
7784 time zone of origination of transmission;
7785 </p></li><li class="listitem"><p>
7786 numeric designation of the place of the sound recording within the program;
7787 </p></li><li class="listitem"><p>
7788 duration of transmission (to nearest second);
7789 </p></li><li class="listitem"><p>
7790 sound recording title;
7791 </p></li><li class="listitem"><p>
7792 ISRC code of the recording;
7793 </p></li><li class="listitem"><p>
7794 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;
7795 </p></li><li class="listitem"><p>
7796 featured recording artist;
7797 </p></li><li class="listitem"><p>
7798 retail album title;
7799 </p></li><li class="listitem"><p>
7800 recording label;
7801 </p></li><li class="listitem"><p>
7802 UPC code of the retail album;
7803 </p></li><li class="listitem"><p>
7804 catalog number;
7805 </p></li><li class="listitem"><p>
7806 copyright owner information;
7807 </p></li><li class="listitem"><p>
7808 musical genre of the channel or program (station format);
7809 </p></li><li class="listitem"><p>
7810 name of the service or entity;
7811 </p></li><li class="listitem"><p>
7812 channel or program;
7813 </p></li><li class="listitem"><p>
7814 date and time that the user logged in (in the user's time zone);
7815 </p></li><li class="listitem"><p>
7816 date and time that the user logged out (in the user's time zone);
7817 </p></li><li class="listitem"><p>
7818 time zone where the signal was received (user);
7819 </p></li><li class="listitem"><p>
7820 unique user identifier;
7821 </p></li><li class="listitem"><p>
7822 the country in which the user received the transmissions.
7823 </p></li></ol></div><a class="indexterm" name="idp9540992"></a><p>
7824 The Librarian of Congress eventually suspended these reporting
7825 requirements, pending further study. And he also changed the original
7826 rates set by the arbitration panel charged with setting rates. But the
7827 basic difference between Internet radio and terrestrial radio remains:
7828 Internet radio has to pay a <span class="emphasis"><em>type of copyright fee</em></span>
7829 that terrestrial radio does not.
7830 </p><p>
7831 Why? What justifies this difference? Was there any study of the
7832 economic consequences from Internet radio that would justify these
7833 differences? Was the motive to protect artists against piracy?
7834 </p><a class="indexterm" name="idp9543568"></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>
7835 In a rare bit of candor, one RIAA expert admitted what seemed obvious
7836 to everyone at the time. As Alex Alben, vice president for Public
7837 Policy at Real Networks, told me,
7838 </p><div class="blockquote"><blockquote class="blockquote"><p>
7839 The RIAA, which was representing the record labels, presented
7840 some testimony about what they thought a willing buyer would
7841 pay to a willing seller, and it was much higher. It was ten times
7842 higher than what radio stations pay to perform the same songs for
7843 the same period of time. And so the attorneys representing the
7844 webcasters asked the RIAA, &#8230; <span class="quote">«<span class="quote">How  do  you  come  up  with a
7845
7846
7847 rate that's so much higher? Why is it worth more than radio?  Because
7848 here we have hundreds of thousands of webcasters who want to pay, and
7849 that should establish the market rate, and if you set the rate so
7850 high, you're going to drive the small webcasters out of
7851 business. &#8230;</span>»</span>
7852 </p><a class="indexterm" name="idp9554224"></a><p>
7853 And the RIAA experts said, <span class="quote">«<span class="quote">Well, we don't really model this as an
7854 industry with thousands of webcasters, <span class="emphasis"><em>we think it should be
7855 an industry with, you know, five or seven big players who can pay a
7856 high rate and it's a stable, predictable market</em></span>.</span>»</span> (Emphasis
7857 added.)
7858 </p></blockquote></div><a class="indexterm" name="idp9556928"></a><a class="indexterm" name="idp9558176"></a><a class="indexterm" name="idp9559520"></a><a class="indexterm" name="idp9560912"></a><p>
7859 Translation: The aim is to use the law to eliminate competition, so
7860 that this platform of potentially immense competition, which would
7861 cause the diversity and range of content available to explode, would not
7862 cause pain to the dinosaurs of old. There is no one, on either the right
7863 or the left, who should endorse this use of the law. And yet there is
7864 practically no one, on either the right or the left, who is doing anything
7865 effective to prevent it.
7866 </p><a class="indexterm" name="idp9563616"></a><a class="indexterm" name="idp9564944"></a><a class="indexterm" name="idp9566336"></a><a class="indexterm" name="idp9567712"></a><a class="indexterm" name="idp9568960"></a><a class="indexterm" name="idp9570272"></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>
7867 Overregulation stifles creativity. It smothers innovation. It gives
7868                 dinosaurs
7869 a veto over the future. It wastes the extraordinary opportunity
7870 for a democratic creativity that digital technology enables.
7871 </p><p>
7872 In addition to these important harms, there is one more that was
7873 important to our forebears, but seems forgotten today. Overregulation
7874 corrupts citizens and weakens the rule of law.
7875 </p><p>
7876 The war that is being waged today is a war of prohibition. As with
7877 every war of prohibition, it is targeted against the behavior of a very
7878 large number of citizens. According to <em class="citetitle">The New York Times</em>, 43 million
7879 Americans downloaded music in May 2002.<a href="#ftn.idp9574992" class="footnote" name="idp9574992"><sup class="footnote">[171]</sup></a>
7880  According to the RIAA,
7881 the behavior of those 43 million Americans is a felony. We thus have a
7882 set of rules that transform 20 percent of America into criminals. As the
7883
7884
7885 RIAA launches lawsuits against not only the Napsters and Kazaas of
7886 the world, but against students building search engines, and
7887                 increasingly
7888 against ordinary users downloading content, the technologies for
7889 sharing will advance to further protect and hide illegal use. It is an arms
7890 race or a civil war, with the extremes of one side inviting a more
7891                 extreme
7892 response by the other.
7893 </p><p>
7894 The content industry's tactics exploit the failings of the American
7895 legal system. When the RIAA brought suit against Jesse Jordan, it
7896 knew that in Jordan it had found a scapegoat, not a defendant. The
7897 threat of having to pay either all the money in the world in damages
7898 ($15,000,000) or almost all the money in the world to defend against
7899 paying all the money in the world in damages ($250,000 in legal fees)
7900 led Jordan to choose to pay all the money he had in the world
7901 ($12,000) to make the suit go away. The same strategy animates the
7902 RIAA's suits against individual users. In September 2003, the RIAA
7903 sued 261 individuals&#8212;including a twelve-year-old girl living in public
7904 housing and a seventy-year-old man who had no idea what file sharing
7905 was.<a href="#ftn.idp9510912" class="footnote" name="idp9510912"><sup class="footnote">[172]</sup></a>
7906 As these scapegoats discovered, it will always cost more to defend
7907 against these suits than it would cost to simply settle. (The twelve
7908 year old, for example, like Jesse Jordan, paid her life savings of $2,000
7909 to settle the case.) Our law is an awful system for defending rights. It
7910 is an embarrassment to our tradition. And the consequence of our law
7911 as it is, is that those with the power can use the law to quash any rights
7912 they oppose.
7913 </p><a class="indexterm" name="idp9581568"></a><p>
7914 Wars of prohibition are nothing new in America. This one is just
7915 something more extreme than anything we've seen before. We
7916 experimented with alcohol prohibition, at a time when the per capita
7917 consumption of alcohol was 1.5 gallons per capita per year. The war
7918 against drinking initially reduced that consumption to just 30 percent
7919 of its preprohibition levels, but by the end of prohibition,
7920 consumption was up to 70 percent of the preprohibition
7921 level. Americans were drinking just about as much, but now, a vast
7922 number were criminals.<a href="#ftn.idp9583200" class="footnote" name="idp9583200"><sup class="footnote">[173]</sup></a>
7923 We have
7924
7925 launched a war on drugs aimed at reducing the consumption of regulated
7926 narcotics that 7 percent (or 16 million) Americans now use.<a href="#ftn.idp9585488" class="footnote" name="idp9585488"><sup class="footnote">[174]</sup></a>
7927 That is a drop from the high (so to speak) in 1979 of 14 percent of
7928 the population. We regulate automobiles to the point where the vast
7929 majority of Americans violate the law every day. We run such a complex
7930 tax system that a majority of cash businesses regularly
7931 cheat.<a href="#ftn.idp9586816" class="footnote" name="idp9586816"><sup class="footnote">[175]</sup></a>
7932 We pride ourselves on our <span class="quote">«<span class="quote">free society,</span>»</span> but an endless array of
7933 ordinary behavior is regulated within our society. And as a result, a
7934 huge proportion of Americans regularly violate at least some law.
7935 </p><a class="indexterm" name="idp9589376"></a><p>
7936 This state of affairs is not without consequence. It is a particularly
7937 salient issue for teachers like me, whose job it is to teach law
7938 students about the importance of <span class="quote">«<span class="quote">ethics.</span>»</span> As my colleague Charlie
7939 Nesson told a class at Stanford, each year law schools admit thousands
7940 of students who have illegally downloaded music, illegally consumed
7941 alcohol and sometimes drugs, illegally worked without paying taxes,
7942 illegally driven cars. These are kids for whom behaving illegally is
7943 increasingly the norm. And then we, as law professors, are supposed to
7944 teach them how to behave ethically&#8212;how to say no to bribes, or
7945 keep client funds separate, or honor a demand to disclose a document
7946 that will mean that your case is over. Generations of
7947 Americans&#8212;more significantly in some parts of America than in
7948 others, but still, everywhere in America today&#8212;can't live their
7949 lives both normally and legally, since <span class="quote">«<span class="quote">normally</span>»</span> entails a certain
7950 degree of illegality.
7951 </p><p>
7952 The response to this general illegality is either to enforce the law
7953 more severely or to change the law. We, as a society, have to learn
7954 how to make that choice more rationally. Whether a law makes sense
7955 depends, in part, at least, upon whether the costs of the law, both
7956 intended and collateral, outweigh the benefits. If the costs, intended
7957 and collateral, do outweigh the benefits, then the law ought to be
7958 changed.  Alternatively, if the costs of the existing system are much
7959 greater than the costs of an alternative, then we have a good reason
7960 to consider the alternative.
7961 </p><p>
7962
7963
7964 My point is not the idiotic one: Just because people violate a law, we
7965 should therefore repeal it. Obviously, we could reduce murder statistics
7966 dramatically by legalizing murder on Wednesdays and Fridays. But
7967 that wouldn't make any sense, since murder is wrong every day of the
7968 week. A society is right to ban murder always and everywhere.
7969 </p><p>
7970 My point is instead one that democracies understood for generations,
7971 but that we recently have learned to forget. The rule of law depends
7972 upon people obeying the law. The more often, and more repeatedly, we
7973 as citizens experience violating the law, the less we respect the
7974 law. Obviously, in most cases, the important issue is the law, not
7975 respect for the law. I don't care whether the rapist respects the law
7976 or not; I want to catch and incarcerate the rapist. But I do care
7977 whether my students respect the law. And I do care if the rules of law
7978 sow increasing disrespect because of the extreme of regulation they
7979 impose.  Twenty million Americans have come of age since the Internet
7980 introduced this different idea of <span class="quote">«<span class="quote">sharing.</span>»</span> We need to be able to
7981 call these twenty million Americans <span class="quote">«<span class="quote">citizens,</span>»</span> not <span class="quote">«<span class="quote">felons.</span>»</span>
7982 </p><p>
7983 When at least forty-three million citizens download content from the
7984 Internet, and when they use tools to combine that content in ways
7985 unauthorized by copyright holders, the first question we should be
7986 asking is not how best to involve the FBI. The first question should
7987 be whether this particular prohibition is really necessary in order to
7988 achieve the proper ends that copyright law serves. Is there another
7989 way to assure that artists get paid without transforming forty-three
7990 million Americans into felons? Does it make sense if there are other
7991 ways to assure that artists get paid without transforming America into
7992 a nation of felons?
7993 </p><p>
7994 This abstract point can be made more clear with a particular example.
7995 </p><p>
7996 We all own CDs. Many of us still own phonograph records. These pieces
7997 of plastic encode music that in a certain sense we have bought.  The
7998 law protects our right to buy and sell that plastic: It is not a
7999 copyright infringement for me to sell all my classical records at a
8000 used
8001
8002
8003 record store and buy jazz records to replace them. That <span class="quote">«<span class="quote">use</span>»</span> of the
8004 recordings is free.
8005 </p><p>
8006 But as the MP3 craze has demonstrated, there is another use of
8007 phonograph records that is effectively free. Because these recordings
8008 were made without copy-protection technologies, I am <span class="quote">«<span class="quote">free</span>»</span> to copy,
8009 or <span class="quote">«<span class="quote">rip,</span>»</span> music from my records onto a computer hard disk. Indeed,
8010 Apple Corporation went so far as to suggest that <span class="quote">«<span class="quote">freedom</span>»</span> was a
8011 right: In a series of commercials, Apple endorsed the <span class="quote">«<span class="quote">Rip, Mix, Burn</span>»</span>
8012 capacities of digital technologies.
8013 </p><a class="indexterm" name="idp9602496"></a><a class="indexterm" name="idxcdsmix"></a><p>
8014 This <span class="quote">«<span class="quote">use</span>»</span> of my records is certainly valuable. I have begun a large
8015 process at home of ripping all of my and my wife's CDs, and storing
8016 them in one archive. Then, using Apple's iTunes, or a wonderful
8017 program called Andromeda, we can build different play lists of our
8018 music: Bach, Baroque, Love Songs, Love Songs of Significant
8019 Others&#8212;the potential is endless. And by reducing the costs of
8020 mixing play lists, these technologies help build a creativity with
8021 play lists that is itself independently valuable. Compilations of
8022 songs are creative and meaningful in their own right.
8023 </p><p>
8024 This use is enabled by unprotected media&#8212;either CDs or records.
8025 But unprotected media also enable file sharing. File sharing threatens
8026 (or so the content industry believes) the ability of creators to earn
8027 a fair return from their creativity. And thus, many are beginning to
8028 experiment with technologies to eliminate unprotected media. These
8029 technologies, for example, would enable CDs that could not be
8030 ripped. Or they might enable spy programs to identify ripped content
8031 on people's machines.
8032 </p><p>
8033 If these technologies took off, then the building of large archives of
8034 your own music would become quite difficult. You might hang in hacker
8035 circles, and get technology to disable the technologies that protect
8036 the content. Trading in those technologies is illegal, but maybe that
8037 doesn't bother you much. In any case, for the vast majority of people,
8038 these protection technologies would effectively destroy the archiving
8039
8040
8041 use of CDs. The technology, in other words, would force us all back to
8042 the world where we either listened to music by manipulating pieces of
8043 plastic or were part of a massively complex <span class="quote">«<span class="quote">digital rights
8044 management</span>»</span> system.
8045 </p><a class="indexterm" name="idp9609664"></a><p>
8046 If the only way to assure that artists get paid were the elimination
8047 of the ability to freely move content, then these technologies to
8048 interfere with the freedom to move content would be justifiable. But
8049 what if there were another way to assure that artists are paid,
8050 without locking down any content? What if, in other words, a different
8051 system could assure compensation to artists while also preserving the
8052 freedom to move content easily?
8053 </p><p>
8054 My point just now is not to prove that there is such a system. I offer
8055 a version of such a system in the last chapter of this book. For now,
8056 the only point is the relatively uncontroversial one: If a different
8057 system achieved the same legitimate objectives that the existing
8058 copyright system achieved, but left consumers and creators much more
8059 free, then we'd have a very good reason to pursue this
8060 alternative&#8212;namely, freedom.  The choice, in other words, would
8061 not be between property and piracy; the choice would be between
8062 different property systems and the freedoms each allowed.
8063 </p><p>
8064 I believe there is a way to assure that artists are paid without
8065 turning forty-three million Americans into felons. But the salient
8066 feature of this alternative is that it would lead to a very different
8067 market for producing and distributing creativity. The dominant few,
8068 who today control the vast majority of the distribution of content in
8069 the world, would no longer exercise this extreme of control. Rather,
8070 they would go the way of the horse-drawn buggy.
8071 </p><p>
8072 Except that this generation's buggy manufacturers have already saddled
8073 Congress, and are riding the law to protect themselves against this
8074 new form of competition. For them the choice is between fortythree
8075 million Americans as criminals and their own survival.
8076 </p><p>
8077 It is understandable why they choose as they do. It is not
8078 understandable why we as a democracy continue to choose as we do. Jack
8079
8080
8081
8082 Valenti is charming; but not so charming as to justify giving up a
8083 tradition as deep and important as our tradition of free culture.
8084 </p><a class="indexterm" name="idp9615280"></a><a class="indexterm" name="idxisps"></a><p>
8085 <span class="strong"><strong>There's one more</strong></span> aspect to this
8086 corruption that is particularly important to civil liberties, and
8087 follows directly from any war of prohibition.  As Electronic Frontier
8088 Foundation attorney Fred von Lohmann describes, this is the
8089 <span class="quote">«<span class="quote">collateral damage</span>»</span> that <span class="quote">«<span class="quote">arises whenever you turn
8090 a very large percentage of the population into criminals.</span>»</span> This
8091 is the collateral damage to civil liberties generally.
8092 </p><a class="indexterm" name="idp9619856"></a><p>
8093 <span class="quote">«<span class="quote">If you can treat someone as a putative lawbreaker,</span>»</span> von Lohmann
8094 explains,
8095 </p><div class="blockquote"><blockquote class="blockquote"><p>
8096 then all of a sudden a lot of basic civil liberty protections
8097 evaporate to one degree or another. &#8230; If you're a copyright
8098 infringer, how can you hope to have any privacy rights? If you're a
8099 copyright infringer, how can you hope to be secure against seizures of
8100 your computer? How can you hope to continue to receive Internet
8101 access? &#8230; Our sensibilities change as soon as we think, <span class="quote">«<span class="quote">Oh, well,
8102 but that person's a criminal, a lawbreaker.</span>»</span> Well, what this campaign
8103 against file sharing has done is turn a remarkable percentage of the
8104 American Internet-using population into <span class="quote">«<span class="quote">lawbreakers.</span>»</span>
8105 </p></blockquote></div><p>
8106 And the consequence of this transformation of the American public
8107 into criminals is that it becomes trivial, as a matter of due process, to
8108 effectively erase much of the privacy most would presume.
8109 </p><p>
8110 Users of the Internet began to see this generally in 2003 as the RIAA
8111 launched its campaign to force Internet service providers to turn over
8112 the names of customers who the RIAA believed were violating copyright
8113 law. Verizon fought that demand and lost. With a simple request to a
8114 judge, and without any notice to the customer at all, the identity of
8115 an Internet user is revealed.
8116 </p><p>
8117
8118 The RIAA then expanded this campaign, by announcing a general strategy
8119 to sue individual users of the Internet who are alleged to have
8120 downloaded copyrighted music from file-sharing systems. But as we've
8121 seen, the potential damages from these suits are astronomical: If a
8122 family's computer is used to download a single CD's worth of music,
8123 the family could be liable for $2 million in damages. That didn't stop
8124 the RIAA from suing a number of these families, just as they had sued
8125 Jesse Jordan.<a href="#ftn.idp9626320" class="footnote" name="idp9626320"><sup class="footnote">[176]</sup></a>
8126
8127 </p><p>
8128 Even this understates the espionage that is being waged by the
8129 RIAA. A report from CNN late last summer described a strategy the
8130 RIAA had adopted to track Napster users.<a href="#ftn.idp9632464" class="footnote" name="idp9632464"><sup class="footnote">[177]</sup></a>
8131 Using a sophisticated hashing algorithm, the RIAA took what is in
8132 effect a fingerprint of every song in the Napster catalog. Any copy of
8133 one of those MP3s will have the same <span class="quote">«<span class="quote">fingerprint.</span>»</span>
8134 </p><p>
8135 So imagine the following not-implausible scenario: Imagine a
8136 friend gives a CD to your daughter&#8212;a collection of songs just
8137 like the cassettes you used to make as a kid. You don't know, and
8138 neither does your daughter, where these songs came from. But she
8139 copies these songs onto her computer. She then takes her computer to
8140 college and connects it to a college network, and if the college
8141 network is <span class="quote">«<span class="quote">cooperating</span>»</span> with the RIAA's espionage, and she hasn't
8142 properly protected her content from the network (do you know how to do
8143 that yourself ?), then the RIAA will be able to identify your daughter
8144 as a <span class="quote">«<span class="quote">criminal.</span>»</span>  And under the rules that universities are beginning
8145 to deploy,<a href="#ftn.idp9637072" class="footnote" name="idp9637072"><sup class="footnote">[178]</sup></a>
8146 your daughter can lose the right to use the university's computer
8147 network.  She can, in some cases, be expelled.
8148 </p><a class="indexterm" name="idp9645408"></a><a class="indexterm" name="idp9646720"></a><p>
8149 Now, of course, she'll have the right to defend herself. You can hire
8150 a lawyer for her (at $300 per hour, if you're lucky), and she can
8151 plead that she didn't know anything about the source of the songs or
8152 that they came from Napster. And it may well be that the university
8153 believes her. But the university might not believe her. It might treat
8154 this <span class="quote">«<span class="quote">contraband</span>»</span> as presumptive of guilt. And as any number of
8155 college students
8156
8157
8158 have already learned, our presumptions about innocence disappear in
8159 the middle of wars of prohibition. This war is no different.
8160 Says von Lohmann,
8161 </p><div class="blockquote"><blockquote class="blockquote"><p>
8162 So when we're talking about numbers like forty to sixty million
8163 Americans that are essentially copyright infringers, you create a
8164 situation where the civil liberties of those people are very much in
8165 peril in a general matter. [I don't] think [there is any] analog where
8166 you could randomly choose any person off the street and be confident
8167 that they were committing an unlawful act that could put them on the
8168 hook for potential felony liability or hundreds of millions of dollars
8169 of civil liability. Certainly we all speed, but speeding isn't the
8170 kind of an act for which we routinely forfeit civil liberties. Some
8171 people use drugs, and I think that's the closest analog, [but] many
8172 have noted that the war against drugs has eroded all of our civil
8173 liberties because it's treated so many Americans as criminals. Well, I
8174 think it's fair to say that file sharing is an order of magnitude
8175 larger number of Americans than drug use. &#8230; If forty to sixty
8176 million Americans have become lawbreakers, then we're really on a
8177 slippery slope to lose a lot of civil liberties for all forty to sixty
8178 million of them.
8179 </p></blockquote></div><p>
8180 When forty to sixty million Americans are considered <span class="quote">«<span class="quote">criminals</span>»</span> under
8181 the law, and when the law could achieve the same objective&#8212;
8182 securing rights to authors&#8212;without these millions being
8183 considered <span class="quote">«<span class="quote">criminals,</span>»</span> who is the villain? Americans or the law?
8184 Which is American, a constant war on our own people or a concerted
8185 effort through our democracy to change our law?
8186 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp9322464" class="footnote"><p><a href="#idp9322464" class="para"><sup class="para">[157] </sup></a>
8187
8188 See Lynne W. Jeter, <em class="citetitle">Disconnected: Deceit and Betrayal at WorldCom</em>
8189 (Hoboken, N.J.: John Wiley &amp; Sons, 2003), 176, 204; for details of
8190 the settlement, see MCI press release, <span class="quote">«<span class="quote">MCI Wins U.S. District Court
8191 Approval for SEC Settlement</span>»</span> (7 July 2003), available at
8192 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #37</a>.
8193 <a class="indexterm" name="idp9325200"></a>
8194 </p></div><div id="ftn.idp9326352" class="footnote"><p><a href="#idp9326352" class="para"><sup class="para">[158] </sup></a>
8195  The bill, modeled after California's tort reform model, was passed in the
8196 House of Representatives but defeated in a Senate vote in July 2003. For
8197 an overview, see Tanya Albert, <span class="quote">«<span class="quote">Measure Stalls in Senate: `We'll Be Back,'
8198 Say Tort Reformers,</span>»</span> amednews.com, 28 July 2003, available at
8199 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #38</a>,
8200 and <span class="quote">«<span class="quote">Senate Turns Back Malpractice Caps,</span>»</span> CBSNews.com, 9 July 2003,
8201 available at
8202 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #39</a>. President Bush has continued to urge tort reform in
8203 recent months.
8204 <a class="indexterm" name="idp9329920"></a>
8205 </p></div><div id="ftn.idp9334352" class="footnote"><p><a href="#idp9334352" class="para"><sup class="para">[159] </sup></a>
8206
8207
8208 See Danit Lidor, <span class="quote">«<span class="quote">Artists Just Wanna Be Free,</span>»</span> <em class="citetitle">Wired</em>, 7 July
8209 2003, available at
8210 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #40</a>. For an overview of the exhibition, see
8211 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #41</a>.
8212 </p></div><div id="ftn.idp9417504" class="footnote"><p><a href="#idp9417504" class="para"><sup class="para">[160] </sup></a>
8213
8214 See Joseph Menn, <span class="quote">«<span class="quote">Universal, EMI Sue Napster Investor,</span>»</span> <em class="citetitle">Los Angeles
8215 Times</em>, 23 April 2003. For a parallel argument about the effects on
8216 innovation in the distribution of music, see Janelle Brown, <span class="quote">«<span class="quote">The Music
8217 Revolution Will Not Be Digitized,</span>»</span> Salon.com, 1 June 2001, available
8218 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #42</a>.
8219 See also Jon Healey, <span class="quote">«<span class="quote">Online Music Services Besieged,</span>»</span> <em class="citetitle">Los Angeles
8220 Times</em>, 28 May 2001.
8221 </p></div><div id="ftn.idp9350144" class="footnote"><p><a href="#idp9350144" class="para"><sup class="para">[161] </sup></a>
8222
8223 Rafe Needleman, <span class="quote">«<span class="quote">Driving in Cars with MP3s,</span>»</span> <em class="citetitle">Business 2.0</em>, 16 June
8224 2003, available at
8225 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #43</a>. I am grateful
8226 to Dr. Mohammad Al-Ubaydli for this example.
8227 <a class="indexterm" name="idp9426288"></a>
8228 </p></div><div id="ftn.idp9442880" class="footnote"><p><a href="#idp9442880" class="para"><sup class="para">[162] </sup></a>
8229  <span class="quote">«<span class="quote">Copyright and Digital Media in a Post-Napster World,</span>»</span> GartnerG2 and
8230 the Berkman Center for Internet and Society at Harvard Law School
8231 (2003), 33&#8211;35, available at
8232 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #44</a>.
8233 </p></div><div id="ftn.idp9445824" class="footnote"><p><a href="#idp9445824" class="para"><sup class="para">[163] </sup></a>
8234
8235 GartnerG2, 26&#8211;27.
8236 </p></div><div id="ftn.idp9449136" class="footnote"><p><a href="#idp9449136" class="para"><sup class="para">[164] </sup></a>
8237
8238 See David McGuire, <span class="quote">«<span class="quote">Tech Execs Square Off Over Piracy,</span>»</span> Newsbytes,
8239 February 2002 (Entertainment).
8240 </p></div><div id="ftn.idp9458368" class="footnote"><p><a href="#idp9458368" class="para"><sup class="para">[165] </sup></a>
8241
8242 Jessica Litman, <em class="citetitle">Digital Copyright</em> (Amherst,
8243 N.Y.: Prometheus Books, 2001).
8244 <a class="indexterm" name="idp9459584"></a>
8245 <a class="indexterm" name="idp9460416"></a>
8246 </p></div><div id="ftn.idp9467408" class="footnote"><p><a href="#idp9467408" class="para"><sup class="para">[166] </sup></a>
8247
8248 <a class="indexterm" name="idp9468144"></a>
8249 The only circuit court exception is found in <em class="citetitle">Recording Industry
8250 Association of America (RIAA)</em> v. <em class="citetitle">Diamond Multimedia Systems</em>, 180 F. 3d
8251 1072 (9th Cir. 1999). There the court of appeals for the Ninth Circuit
8252 reasoned that makers of a portable MP3 player were not liable for
8253 contributory copyright infringement for a device that is unable to
8254 record or redistribute music (a device whose only copying function is
8255 to render portable a music file already stored on a user's hard
8256 drive).  At the district court level, the only exception is found in
8257 <em class="citetitle">Metro-Goldwyn-Mayer Studios, Inc</em>. v. <em class="citetitle">Grokster, Ltd</em>., 259 F. Supp. 2d
8258 1029 (C.D.  Cal., 2003), where the court found the link between the
8259 distributor and any given user's conduct too attenuated to make the
8260 distributor liable for contributory or vicarious infringement
8261 liability.
8262 </p></div><div id="ftn.idp9471728" class="footnote"><p><a href="#idp9471728" class="para"><sup class="para">[167] </sup></a>
8263
8264 <a class="indexterm" name="idp9472464"></a>
8265 <a class="indexterm" name="idp9473248"></a>
8266 <a class="indexterm" name="idp9474064"></a>
8267 <a class="indexterm" name="idp9474880"></a>
8268 For example, in July 2002, Representative Howard Berman introduced the
8269 Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize
8270 copyright holders from liability for damage done to computers when the
8271 copyright holders use technology to stop copyright infringement. In
8272 August 2002, Representative Billy Tauzin introduced a bill to mandate
8273 that technologies capable of rebroadcasting digital copies of films
8274 broadcast on TV (i.e., computers) respect a <span class="quote">«<span class="quote">broadcast flag</span>»</span> that
8275 would disable copying of that content. And in March of the same year,
8276 Senator Fritz Hollings introduced the Consumer Broadband and Digital
8277 Television Promotion Act, which mandated copyright protection
8278 technology in all digital media devices. See GartnerG2, <span class="quote">«<span class="quote">Copyright and
8279 Digital Media in a Post-Napster World,</span>»</span> 27 June 2003, 33&#8211;34,
8280 available at
8281 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #44</a>.
8282 </p></div><div id="ftn.idp9423744" class="footnote"><p><a href="#idp9423744" class="para"><sup class="para">[168] </sup></a>
8283
8284 Lessing, 239.
8285 </p></div><div id="ftn.idp9492288" class="footnote"><p><a href="#idp9492288" class="para"><sup class="para">[169] </sup></a>
8286
8287 Ibid., 229.
8288 </p></div><div id="ftn.idp9511808" class="footnote"><p><a href="#idp9511808" class="para"><sup class="para">[170] </sup></a>
8289
8290 This example was derived from fees set by the original Copyright
8291 Arbitration Royalty Panel (CARP) proceedings, and is drawn from an
8292 example offered by Professor William Fisher. Conference Proceedings,
8293 iLaw (Stanford), 3 July 2003, on file with author. Professors Fisher
8294 and Zittrain submitted testimony in the CARP proceeding that was
8295 ultimately rejected.  See Jonathan Zittrain, Digital Performance Right
8296 in Sound Recordings and Ephemeral Recordings, Docket No. 2000-9, CARP
8297 DTRA 1 and 2, available at
8298 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #45</a>.
8299 For an excellent analysis making a similar point, see Randal
8300 C. Picker, <span class="quote">«<span class="quote">Copyright as Entry Policy: The Case of Digital
8301 Distribution,</span>»</span> <em class="citetitle">Antitrust Bulletin</em> (Summer/Fall 2002): 461: <span class="quote">«<span class="quote">This was
8302 not confusion, these are just old-fashioned entry barriers. Analog
8303 radio stations are protected from digital entrants, reducing entry in
8304 radio and diversity. Yes, this is done in the name of getting
8305 royalties to copyright holders, but, absent the play of powerful
8306 interests, that could have been done in a media-neutral way.</span>»</span>
8307 <a class="indexterm" name="idp9515520"></a>
8308 <a class="indexterm" name="idp9516304"></a>
8309 </p></div><div id="ftn.idp9574992" class="footnote"><p><a href="#idp9574992" class="para"><sup class="para">[171] </sup></a>
8310  Mike Graziano and Lee Rainie, <span class="quote">«<span class="quote">The Music Downloading Deluge,</span>»</span> Pew
8311 Internet and American Life Project (24 April 2001), available at
8312 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #46</a>.
8313 The Pew Internet and American Life Project reported that 37 million
8314 Americans had downloaded music files from the Internet by early 2001.
8315 </p></div><div id="ftn.idp9510912" class="footnote"><p><a href="#idp9510912" class="para"><sup class="para">[172] </sup></a>
8316
8317 Alex Pham, <span class="quote">«<span class="quote">The Labels Strike Back: N.Y. Girl Settles RIAA Case,</span>»</span> <em class="citetitle">Los
8318 Angeles Times</em>, 10 September 2003, Business.
8319 </p></div><div id="ftn.idp9583200" class="footnote"><p><a href="#idp9583200" class="para"><sup class="para">[173] </sup></a>
8320
8321 Jeffrey A. Miron and Jeffrey Zwiebel, <span class="quote">«<span class="quote">Alcohol Consumption During
8322 Prohibition,</span>»</span> <em class="citetitle">American Economic Review</em> 81, no. 2 (1991): 242.
8323 </p></div><div id="ftn.idp9585488" class="footnote"><p><a href="#idp9585488" class="para"><sup class="para">[174] </sup></a>
8324
8325 National Drug Control Policy: Hearing Before the House Government
8326 Reform Committee, 108th Cong., 1st sess. (5 March 2003) (statement of
8327 John P. Walters, director of National Drug Control Policy).
8328 </p></div><div id="ftn.idp9586816" class="footnote"><p><a href="#idp9586816" class="para"><sup class="para">[175] </sup></a>
8329
8330 See James Andreoni, Brian Erard, and Jonathon Feinstein, <span class="quote">«<span class="quote">Tax
8331 Compliance,</span>»</span> <em class="citetitle">Journal of Economic Literature</em> 36 (1998): 818 (survey of
8332 compliance literature).
8333 </p></div><div id="ftn.idp9626320" class="footnote"><p><a href="#idp9626320" class="para"><sup class="para">[176] </sup></a>
8334
8335 See Frank Ahrens, <span class="quote">«<span class="quote">RIAA's Lawsuits Meet Surprised Targets; Single
8336 Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,</span>»</span>
8337 <em class="citetitle">Washington Post</em>, 10 September 2003, E1; Chris Cobbs, <span class="quote">«<span class="quote">Worried Parents
8338 Pull Plug on File `Stealing'; With the Music Industry Cracking Down on
8339 File Swapping, Parents are Yanking Software from Home PCs to Avoid
8340 Being Sued,</span>»</span> <em class="citetitle">Orlando Sentinel Tribune</em>, 30 August 2003, C1; Jefferson
8341 Graham, <span class="quote">«<span class="quote">Recording Industry Sues Parents,</span>»</span> <em class="citetitle">USA Today</em>, 15 September
8342 2003, 4D; John Schwartz, <span class="quote">«<span class="quote">She Says She's No Music Pirate. No Snoop
8343 Fan, Either,</span>»</span> <em class="citetitle">New York Times</em>, 25 September 2003, C1; Margo Varadi, <span class="quote">«<span class="quote">Is
8344 Brianna a Criminal?</span>»</span> <em class="citetitle">Toronto Star</em>, 18 September 2003, P7.
8345 </p></div><div id="ftn.idp9632464" class="footnote"><p><a href="#idp9632464" class="para"><sup class="para">[177] </sup></a>
8346
8347 See <span class="quote">«<span class="quote">Revealed: How RIAA Tracks Downloaders: Music Industry Discloses
8348 Some Methods Used,</span>»</span> CNN.com, available at
8349 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #47</a>.
8350 </p></div><div id="ftn.idp9637072" class="footnote"><p><a href="#idp9637072" class="para"><sup class="para">[178] </sup></a>
8351
8352 See Jeff Adler, <span class="quote">«<span class="quote">Cambridge: On Campus, Pirates Are Not Penitent,</span>»</span>
8353 <em class="citetitle">Boston Globe</em>, 18 May 2003, City Weekly, 1; Frank Ahrens, <span class="quote">«<span class="quote">Four
8354 Students Sued over Music Sites; Industry Group Targets File Sharing at
8355 Colleges,</span>»</span> <em class="citetitle">Washington Post</em>, 4 April 2003, E1; Elizabeth Armstrong,
8356 <span class="quote">«<span class="quote">Students `Rip, Mix, Burn' at Their Own Risk,</span>»</span> <em class="citetitle">Christian Science
8357 Monitor</em>, 2 September 2003, 20; Robert Becker and Angela Rozas, <span class="quote">«<span class="quote">Music
8358 Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over;
8359 Lawsuit Possible,</span>»</span> <em class="citetitle">Chicago Tribune</em>, 16 July 2003, 1C; Beth Cox, <span class="quote">«<span class="quote">RIAA
8360 Trains Antipiracy Guns on Universities,</span>»</span> <em class="citetitle">Internet News</em>, 30 January
8361 2003, available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
8362 #48</a>; Benny Evangelista, <span class="quote">«<span class="quote">Download Warning 101: Freshman
8363 Orientation This Fall to Include Record Industry Warnings Against File
8364 Sharing,</span>»</span> <em class="citetitle">San Francisco Chronicle</em>, 11 August 2003, E11; <span class="quote">«<span class="quote">Raid, Letters
8365 Are Weapons at Universities,</span>»</span> <em class="citetitle">USA Today</em>, 26 September 2000, 3D.
8366 </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>
8367 <span class="strong"><strong>So here's</strong></span> the picture: You're
8368 standing at the side of the road. Your car is on fire. You are angry
8369 and upset because in part you helped start the fire. Now you don't
8370 know how to put it out. Next to you is a bucket, filled with
8371 gasoline. Obviously, gasoline won't put the fire out.
8372 </p><p>
8373 As you ponder the mess, someone else comes along. In a panic, she
8374 grabs the bucket. Before you have a chance to tell her to
8375 stop&#8212;or before she understands just why she should
8376 stop&#8212;the bucket is in the air.  The gasoline is about to hit the
8377 blazing car. And the fire that gasoline will ignite is about to ignite
8378 everything around.
8379 </p><p>
8380 <span class="strong"><strong>A war</strong></span> about copyright rages all
8381 around&#8212;and we're all focusing on the wrong thing. No doubt,
8382 current technologies threaten existing businesses.  No doubt they may
8383 threaten artists. But technologies change.  The industry and
8384 technologists have plenty of ways to use technology to protect
8385 themselves against the current threats of the Internet. This is a fire
8386 that if let alone would burn itself out.
8387 </p><p>
8388
8389 Yet policy makers are not willing to leave this fire to itself. Primed
8390 with plenty of lobbyists' money, they are keen to intervene to
8391 eliminate the problem they perceive. But the problem they perceive is
8392 not the real threat this culture faces. For while we watch this small
8393 fire in the corner, there is a massive change in the way culture is
8394 made that is happening all around.
8395 </p><p>
8396 Somehow we have to find a way to turn attention to this more important
8397 and fundamental issue. Somehow we have to find a way to avoid pouring
8398 gasoline onto this fire.
8399 </p><p>
8400 We have not found that way yet. Instead, we seem trapped in a simpler,
8401 binary view. However much many people push to frame this debate more
8402 broadly, it is the simple, binary view that remains. We rubberneck to
8403 look at the fire when we should be keeping our eyes on the road.
8404 </p><p>
8405 This challenge has been my life these last few years. It has also been
8406 my failure. In the two chapters that follow, I describe one small
8407 brace of efforts, so far failed, to find a way to refocus this
8408 debate. We must understand these failures if we're to understand what
8409 success will require.
8410 </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>
8411 <span class="strong"><strong>In 1995</strong></span>, a father was frustrated
8412 that his daughters didn't seem to like Hawthorne. No doubt there was
8413 more than one such father, but at least one did something about
8414 it. Eric Eldred, a retired computer programmer living in New
8415 Hampshire, decided to put Hawthorne on the Web. An electronic version,
8416 Eldred thought, with links to pictures and explanatory text, would
8417 make this nineteenth-century author's work come alive.
8418 </p><a class="indexterm" name="idxlibrariesofpublicdomainliterature"></a><a class="indexterm" name="idxpublicdomainlibraryofworksderivedfrom"></a><p>
8419 It didn't work&#8212;at least for his daughters. They didn't find
8420 Hawthorne any more interesting than before. But Eldred's experiment
8421 gave birth to a hobby, and his hobby begat a cause: Eldred would build
8422 a library of public domain works by scanning these works and making
8423 them available for free.
8424 </p><a class="indexterm" name="idxdisneywalt5"></a><a class="indexterm" name="idp9674336"></a><p>
8425 Eldred's library was not simply a copy of certain public domain
8426 works, though even a copy would have been of great value to people
8427 across the world who can't get access to printed versions of these
8428 works. Instead, Eldred was producing derivative works from these
8429 public domain works. Just as Disney turned Grimm into stories more
8430
8431 accessible to the twentieth century, Eldred transformed Hawthorne, and
8432 many others, into a form more accessible&#8212;technically
8433 accessible&#8212;today.
8434 </p><a class="indexterm" name="idp9672496"></a><p>
8435 Eldred's freedom to do this with Hawthorne's work grew from the same
8436 source as Disney's. Hawthorne's <em class="citetitle">Scarlet Letter</em> had passed into the
8437 public domain in 1907. It was free for anyone to take without the
8438 permission of the Hawthorne estate or anyone else. Some, such as Dover
8439 Press and Penguin Classics, take works from the public domain and
8440 produce printed editions, which they sell in bookstores across the
8441 country. Others, such as Disney, take these stories and turn them into
8442 animated cartoons, sometimes successfully (<em class="citetitle">Cinderella</em>), sometimes not
8443 (<em class="citetitle">The Hunchback of Notre Dame</em>, <em class="citetitle">Treasure Planet</em>). These are all
8444 commercial publications of public domain works.
8445 </p><a class="indexterm" name="idp9679792"></a><a class="indexterm" name="idp9681040"></a><p>
8446 The Internet created the possibility of noncommercial publications of
8447 public domain works. Eldred's is just one example. There are literally
8448 thousands of others. Hundreds of thousands from across the world have
8449 discovered this platform of expression and now use it to share works
8450 that are, by law, free for the taking. This has produced what we might
8451 call the <span class="quote">«<span class="quote">noncommercial publishing industry,</span>»</span> which before the
8452 Internet was limited to people with large egos or with political or
8453 social causes. But with the Internet, it includes a wide range of
8454 individuals and groups dedicated to spreading culture
8455 generally.<a href="#ftn.idp9683664" class="footnote" name="idp9683664"><sup class="footnote">[179]</sup></a>
8456 </p><a class="indexterm" name="idxcongressuscopyrighttermsextendedby2"></a><a class="indexterm" name="idxcopyrightdurationof6"></a><a class="indexterm" name="idxcopyrightlawtermextensionsin2"></a><a class="indexterm" name="idp9692064"></a><a class="indexterm" name="idp9692880"></a><a class="indexterm" name="idp9693696"></a><a class="indexterm" name="idxpatentsfuturepatentsvsfuturecopyrightsin"></a><p>
8457 As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's
8458 collection of poems <em class="citetitle">New Hampshire</em> was slated to
8459 pass into the public domain. Eldred wanted to post that collection in
8460 his free public library.  But Congress got in the way. As I described
8461 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,
8462 Congress extended the terms of existing copyrights&#8212;this time by
8463 twenty years. Eldred would not be free to add any works more recent
8464 than 1923 to his collection until 2019.  Indeed, no copyrighted work
8465 would pass into the public domain until that year (and not even then,
8466 if Congress extends the term again). By contrast, in the same period,
8467 more than 1 million patents will pass into the public domain.
8468 </p><a class="indexterm" name="idp9699280"></a><a class="indexterm" name="idp9700464"></a><a class="indexterm" name="idp9701856"></a><a class="indexterm" name="idp9702672"></a><a class="indexterm" name="idxcopyrightinperpetuity4"></a><a class="indexterm" name="idxsonnybonocopyrighttermextensionactctea2"></a><p>
8469
8470
8471 This was the Sonny Bono Copyright Term Extension Act
8472 (CTEA), enacted in memory of the congressman and former musician
8473 Sonny Bono, who, his widow, Mary Bono, says, believed that
8474 <span class="quote">«<span class="quote">copyrights should be forever.</span>»</span><a href="#ftn.idp9708080" class="footnote" name="idp9708080"><sup class="footnote">[180]</sup></a>
8475 </p><a class="indexterm" name="idp9711536"></a><a class="indexterm" name="idp9712912"></a><a class="indexterm" name="idp9714032"></a><a class="indexterm" name="idp9714864"></a><a class="indexterm" name="idp9715696"></a><p>
8476 Eldred decided to fight this law. He first resolved to fight it through
8477 civil disobedience. In a series of interviews, Eldred announced that he
8478 would publish as planned, CTEA notwithstanding. But because of a
8479 second law passed in 1998, the NET (No Electronic Theft) Act, his act
8480 of publishing would make Eldred a felon&#8212;whether or not anyone
8481 complained. This was a dangerous strategy for a disabled programmer
8482 to undertake.
8483 </p><a class="indexterm" name="idp9717072"></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>
8484 It was here that I became involved in Eldred's battle. I was a
8485                 constitutional
8486 scholar whose first passion was constitutional
8487                 interpretation.
8488 And though constitutional law courses never focus upon the
8489 Progress Clause of the Constitution, it had always struck me as
8490                 importantly
8491 different. As you know, the Constitution says,
8492 </p><div class="blockquote"><blockquote class="blockquote"><p>
8493 Congress has the power to promote the Progress of Science &#8230;
8494 by securing for limited Times to Authors &#8230; exclusive Right to
8495 their &#8230; Writings. &#8230;
8496 </p></blockquote></div><a class="indexterm" name="idp9728048"></a><p>
8497 As I've described, this clause is unique within the power-granting
8498 clause of Article I, section 8 of our Constitution. Every other clause
8499 granting power to Congress simply says Congress has the power to do
8500 something&#8212;for example, to regulate <span class="quote">«<span class="quote">commerce among the several
8501 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
8502 specific&#8212;to <span class="quote">«<span class="quote">promote &#8230; Progress</span>»</span>&#8212;through means that
8503 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.,
8504 copyrights) <span class="quote">«<span class="quote">for limited Times.</span>»</span>
8505 </p><a class="indexterm" name="idp9733024"></a><a class="indexterm" name="idp9734368"></a><a class="indexterm" name="idp9735632"></a><a class="indexterm" name="idp9737072"></a><p>
8506 In the past forty years, Congress has gotten into the practice of
8507 extending existing terms of copyright protection. What puzzled me
8508 about this was, if Congress has the power to extend existing terms,
8509 then the Constitution's requirement that terms be <span class="quote">«<span class="quote">limited</span>»</span> will have
8510
8511 no practical effect. If every time a copyright is about to expire,
8512 Congress has the power to extend its term, then Congress can achieve
8513 what the Constitution plainly forbids&#8212;perpetual terms <span class="quote">«<span class="quote">on the
8514 installment plan,</span>»</span> as Professor Peter Jaszi so nicely put it.
8515 </p><a class="indexterm" name="idp9739968"></a><a class="indexterm" name="idp9741328"></a><a class="indexterm" name="idp9742608"></a><p>
8516 As an academic, my first response was to hit the books. I remember
8517 sitting late at the office, scouring on-line databases for any serious
8518 consideration of the question. No one had ever challenged Congress's
8519 practice of extending existing terms. That failure may in part be why
8520 Congress seemed so untroubled in its habit. That, and the fact that
8521 the practice had become so lucrative for Congress. Congress knows that
8522 copyright owners will be willing to pay a great deal of money to see
8523 their copyright terms extended. And so Congress is quite happy to keep
8524 this gravy train going.
8525 </p><p>
8526 For this is the core of the corruption in our present system of
8527 government. <span class="quote">«<span class="quote">Corruption</span>»</span> not in the sense that representatives are
8528 bribed.  Rather, <span class="quote">«<span class="quote">corruption</span>»</span> in the sense that the system induces the
8529 beneficiaries of Congress's acts to raise and give money to Congress
8530 to induce it to act. There's only so much time; there's only so much
8531 Congress can do. Why not limit its actions to those things it must
8532 do&#8212;and those things that pay? Extending copyright terms pays.
8533 </p><p>
8534 If that's not obvious to you, consider the following: Say you're one
8535 of the very few lucky copyright owners whose copyright continues to
8536 make money one hundred years after it was created. The Estate of
8537 Robert Frost is a good example. Frost died in 1963. His poetry
8538 continues to be extraordinarily valuable. Thus the Robert Frost estate
8539 benefits greatly from any extension of copyright, since no publisher
8540 would pay the estate any money if the poems Frost wrote could be
8541 published by anyone for free.
8542 </p><p>
8543 So imagine the Robert Frost estate is earning $100,000 a year from
8544 three of Frost's poems. And imagine the copyright for those poems
8545 is about to expire. You sit on the board of the Robert Frost estate.
8546 Your financial adviser comes to your board meeting with a very grim
8547 report:
8548 </p><p>
8549 <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,
8550
8551
8552 and C will expire. That means that after next year, we will no longer be
8553 receiving the annual royalty check of $100,000 from the publishers of
8554 those works.</span>»</span>
8555 </p><p>
8556 <span class="quote">«<span class="quote">There's a proposal in Congress, however,</span>»</span> she continues, <span class="quote">«<span class="quote">that
8557 could change this. A few congressmen are floating a bill to extend the
8558 terms of copyright by twenty years. That bill would be extraordinarily
8559 valuable to us. So we should hope this bill passes.</span>»</span>
8560 </p><p>
8561 <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
8562 about it?</span>»</span>
8563 </p><p>
8564 <span class="quote">«<span class="quote">Well, obviously, yes,</span>»</span> the adviser responds. <span class="quote">«<span class="quote">We could contribute
8565 to the campaigns of a number of representatives to try to assure that
8566 they support the bill.</span>»</span>
8567 </p><p>
8568 You hate politics. You hate contributing to campaigns. So you want
8569 to know whether this disgusting practice is worth it. <span class="quote">«<span class="quote">How much
8570 would we get if this extension were passed?</span>»</span> you ask the adviser. <span class="quote">«<span class="quote">How
8571 much is it worth?</span>»</span>
8572 </p><p>
8573 <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
8574 to get at least $100,000 a year from these copyrights, and you use the
8575 `discount rate' that we use to evaluate estate investments (6 percent),
8576 then this law would be worth $1,146,000 to the estate.</span>»</span>
8577 </p><p>
8578 You're a bit shocked by the number, but you quickly come to the
8579 correct conclusion:
8580 </p><p>
8581 <span class="quote">«<span class="quote">So you're saying it would be worth it for us to pay more than
8582 $1,000,000 in campaign contributions if we were confident those
8583                 contributions
8584 would assure that the bill was passed?</span>»</span>
8585 </p><p>
8586 <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
8587                 contribute
8588 up to the `present value' of the income you expect from these
8589 copyrights. Which for us means over $1,000,000.</span>»</span>
8590 </p><p>
8591 You quickly get the point&#8212;you as the member of the board and, I
8592 trust, you the reader. Each time copyrights are about to expire, every
8593 beneficiary in the position of the Robert Frost estate faces the same
8594 choice: If they can contribute to get a law passed to extend copyrights,
8595
8596 they will benefit greatly from that extension. And so each time
8597         copyrights
8598 are about to expire, there is a massive amount of lobbying to get
8599 the copyright term extended.
8600 </p><p>
8601 Thus a congressional perpetual motion machine: So long as legislation
8602 can be bought (albeit indirectly), there will be all the incentive in
8603 the world to buy further extensions of copyright.
8604 </p><p>
8605 In the lobbying that led to the passage of the Sonny Bono
8606                 Copyright
8607 Term Extension Act, this <span class="quote">«<span class="quote">theory</span>»</span> about incentives was proved
8608 real. Ten of the thirteen original sponsors of the act in the House
8609 received the maximum contribution from Disney's political action
8610 committee; in the Senate, eight of the twelve sponsors received
8611                 contributions.<a href="#ftn.idp9762256" class="footnote" name="idp9762256"><sup class="footnote">[181]</sup></a>
8612  The RIAA and the MPAA are estimated to have spent over
8613 $1.5 million lobbying in the 1998 election cycle. They paid out more
8614 than $200,000 in campaign contributions.<a href="#ftn.idp9764256" class="footnote" name="idp9764256"><sup class="footnote">[182]</sup></a>
8615  Disney is estimated to have
8616 contributed more than $800,000 to reelection campaigns in the
8617 cycle.<a href="#ftn.idp9766368" class="footnote" name="idp9766368"><sup class="footnote">[183]</sup></a>
8618
8619 </p><p>
8620 <span class="strong"><strong>Constitutional law</strong></span> is not oblivious
8621 to the obvious. Or at least, it need not be. So when I was considering
8622 Eldred's complaint, this reality about the never-ending incentives to
8623 increase the copyright term was central to my thinking. In my view, a
8624 pragmatic court committed to interpreting and applying the
8625 Constitution of our framers would see that if Congress has the power
8626 to extend existing terms, then there would be no effective
8627 constitutional requirement that terms be <span class="quote">«<span class="quote">limited.</span>»</span> If
8628 they could extend it once, they would extend it again and again and
8629 again.
8630 </p><a class="indexterm" name="idp9771056"></a><a class="indexterm" name="idp9772448"></a><a class="indexterm" name="idp9773712"></a><p>
8631 It was also my judgment that <span class="emphasis"><em>this</em></span> Supreme Court
8632 would not allow Congress to extend existing terms. As anyone close to
8633 the Supreme Court's work knows, this Court has increasingly restricted
8634 the power of Congress when it has viewed Congress's actions as
8635 exceeding the power granted to it by the Constitution. Among
8636 constitutional scholars, the most famous example of this trend was the
8637 Supreme Court's
8638
8639
8640 decision in 1995 to strike down a law that banned the possession of
8641 guns near schools.
8642 </p><p>
8643 Since 1937, the Supreme Court had interpreted Congress's granted
8644 powers very broadly; so, while the Constitution grants Congress the
8645 power to regulate only <span class="quote">«<span class="quote">commerce among the several states</span>»</span> (aka
8646                 <span class="quote">«<span class="quote">interstate
8647 commerce</span>»</span>), the Supreme Court had interpreted that power to
8648 include the power to regulate any activity that merely affected
8649                 interstate
8650 commerce.
8651 </p><p>
8652 As the economy grew, this standard increasingly meant that there was
8653 no limit to Congress's power to regulate, since just about every
8654 activity, when considered on a national scale, affects interstate
8655 commerce.  A Constitution designed to limit Congress's power was
8656 instead interpreted to impose no limit.
8657 </p><a class="indexterm" name="idp9778928"></a><p>
8658 The Supreme Court, under Chief Justice Rehnquist's command, changed
8659 that in <em class="citetitle">United States</em> v. <em class="citetitle">Lopez</em>. The government had
8660 argued that possessing guns near schools affected interstate
8661 commerce. Guns near schools increase crime, crime lowers property
8662 values, and so on. In the oral argument, the Chief Justice asked the
8663 government whether there was any activity that would not affect
8664 interstate commerce under the reasoning the government advanced. The
8665 government said there was not; if Congress says an activity affects
8666 interstate commerce, then that activity affects interstate
8667 commerce. The Supreme Court, the government said, was not in the
8668 position to second-guess Congress.
8669 </p><p>
8670 <span class="quote">«<span class="quote">We pause to consider the implications of the government's arguments,</span>»</span>
8671 the Chief Justice wrote.<a href="#ftn.idp9782448" class="footnote" name="idp9782448"><sup class="footnote">[184]</sup></a>
8672 If anything Congress says is interstate commerce must therefore be
8673 considered interstate commerce, then there would be no limit to
8674 Congress's power. The decision in <em class="citetitle">Lopez</em> was reaffirmed five years
8675 later in <em class="citetitle">United States</em> v. <em class="citetitle">Morrison</em>.<a href="#ftn.idp9785696" class="footnote" name="idp9785696"><sup class="footnote">[185]</sup></a>
8676 </p><p>
8677 If a principle were at work here, then it should apply to the Progress
8678 Clause as much as the Commerce Clause.<a href="#ftn.idp9787936" class="footnote" name="idp9787936"><sup class="footnote">[186]</sup></a>
8679 And if it is applied to the Progress Clause, the principle should
8680 yield the conclusion that Congress
8681
8682 can't extend an existing term. If Congress could extend an existing
8683 term, then there would be no <span class="quote">«<span class="quote">stopping point</span>»</span> to Congress's power over
8684 terms, though the Constitution expressly states that there is such a
8685 limit. Thus, the same principle applied to the power to grant
8686 copyrights should entail that Congress is not allowed to extend the
8687 term of existing copyrights.
8688 </p><p>
8689 <span class="emphasis"><em>If</em></span>, that is, the principle announced in <em class="citetitle">Lopez</em>
8690 stood for a principle.  Many believed the decision in <em class="citetitle">Lopez</em> stood for
8691 politics&#8212;a conservative Supreme Court, which believed in states'
8692 rights, using its power over Congress to advance its own personal
8693 political preferences. But I rejected that view of the Supreme Court's
8694 decision. Indeed, shortly after the decision, I wrote an article
8695 demonstrating the <span class="quote">«<span class="quote">fidelity</span>»</span> in such an interpretation of the
8696 Constitution. The idea that the Supreme Court decides cases based upon
8697 its politics struck me as extraordinarily boring.  I was not going to
8698 devote my life to teaching constitutional law if these nine Justices
8699 were going to be petty politicians.
8700 </p><a class="indexterm" name="idp9793888"></a><a class="indexterm" name="idp9794976"></a><a class="indexterm" name="idp9796096"></a><a class="indexterm" name="idp9797200"></a><p>
8701 <span class="strong"><strong>Now let's pause</strong></span> for a moment to
8702 make sure we understand what the argument in
8703 <em class="citetitle">Eldred</em> was not about. By insisting on the
8704 Constitution's limits to copyright, obviously Eldred was not endorsing
8705 piracy.  Indeed, in an obvious sense, he was fighting a kind of
8706 piracy&#8212;piracy of the public domain. When Robert Frost wrote his
8707 work and when Walt Disney created Mickey Mouse, the maximum copyright
8708 term was just fifty-six years. Because of interim changes, Frost and
8709 Disney had already enjoyed a seventy-five-year monopoly for their
8710 work. They had gotten the benefit of the bargain that the Constitution
8711 envisions: In exchange for a monopoly protected for fifty-six years,
8712 they created new work. But now these entities were using their
8713 power&#8212;expressed through the power of lobbyists' money&#8212;to
8714 get another twenty-year dollop of monopoly. That twenty-year dollop
8715 would be taken from the public domain. Eric Eldred was fighting a
8716 piracy that affects us all.
8717 </p><a class="indexterm" name="idp9799456"></a><p>
8718 Some people view the public domain with contempt. In their brief
8719
8720
8721 before the Supreme Court, the Nashville Songwriters Association
8722 wrote that the public domain is nothing more than <span class="quote">«<span class="quote">legal piracy.</span>»</span><a href="#ftn.idp9802352" class="footnote" name="idp9802352"><sup class="footnote">[187]</sup></a>
8723 But it is not piracy when the law allows it; and in our constitutional
8724 system, our law requires it. Some may not like the Constitution's
8725 requirements, but that doesn't make the Constitution a pirate's
8726 charter.
8727 </p><p>
8728 As we've seen, our constitutional system requires limits on
8729                 copyright
8730 as a way to assure that copyright holders do not too heavily
8731                 influence
8732 the development and distribution of our culture. Yet, as Eric
8733 Eldred discovered, we have set up a system that assures that copyright
8734 terms will be repeatedly extended, and extended, and extended. We
8735 have created the perfect storm for the public domain. Copyrights have
8736 not expired, and will not expire, so long as Congress is free to be
8737 bought to extend them again.
8738 </p><p>
8739 <span class="strong"><strong>It is valuable</strong></span> copyrights that are
8740 responsible for terms being extended.  Mickey Mouse and
8741 <span class="quote">«<span class="quote">Rhapsody in Blue.</span>»</span> These works are too valuable for
8742 copyright owners to ignore. But the real harm to our society from
8743 copyright extensions is not that Mickey Mouse remains Disney's.
8744 Forget Mickey Mouse. Forget Robert Frost. Forget all the works from
8745 the 1920s and 1930s that have continuing commercial value. The real
8746 harm of term extension comes not from these famous works. The real
8747 harm is to the works that are not famous, not commercially exploited,
8748 and no longer available as a result.
8749 </p><p>
8750 If you look at the work created in the first twenty years (1923 to
8751 1942) affected by the Sonny Bono Copyright Term Extension Act,
8752 2 percent of that work has any continuing commercial value. It was the
8753 copyright holders for that 2 percent who pushed the CTEA through.
8754 But the law and its effect were not limited to that 2 percent. The law
8755 extended the terms of copyright generally.<a href="#ftn.idp9808896" class="footnote" name="idp9808896"><sup class="footnote">[188]</sup></a>
8756
8757 </p><p>
8758 Think practically about the consequence of this
8759                 extension&#8212;practically,
8760 as a businessperson, and not as a lawyer eager for more legal
8761
8762
8763 work. In 1930, 10,047 books were published. In 2000, 174 of those
8764 books were still in print. Let's say you were Brewster Kahle, and you
8765 wanted to make available to the world in your iArchive project the
8766                 remaining
8767 9,873. What would you have to do?
8768 </p><a class="indexterm" name="idp9812864"></a><p>
8769 Well, first, you'd have to determine which of the 9,873 books were
8770 still under copyright. That requires going to a library (these data are
8771 not on-line) and paging through tomes of books, cross-checking the
8772 titles and authors of the 9,873 books with the copyright registration
8773 and renewal records for works published in 1930. That will produce a
8774 list of books still under copyright.
8775 </p><p>
8776 Then for the books still under copyright, you would need to locate
8777 the current copyright owners. How would you do that?
8778 </p><p>
8779 Most people think that there must be a list of these copyright
8780                 owners
8781 somewhere. Practical people think this way. How could there be
8782 thousands and thousands of government monopolies without there
8783 being at least a list?
8784 </p><p>
8785 But there is no list. There may be a name from 1930, and then in
8786 1959, of the person who registered the copyright. But just think
8787                 practically
8788 about how impossibly difficult it would be to track down
8789                 thousands
8790 of such records&#8212;especially since the person who registered is
8791 not necessarily the current owner. And we're just talking about 1930!
8792 </p><p>
8793 <span class="quote">«<span class="quote">But there isn't a list of who owns property generally,</span>»</span> the
8794 apologists for the system respond. <span class="quote">«<span class="quote">Why should there be a list of
8795 copyright owners?</span>»</span>
8796 </p><p>
8797 Well, actually, if you think about it, there <span class="emphasis"><em>are</em></span>
8798 plenty of lists of who owns what property. Think about deeds on
8799 houses, or titles to cars.  And where there isn't a list, the code of
8800 real space is pretty good at suggesting who the owner of a bit of
8801 property is. (A swing set in your backyard is probably yours.) So
8802 formally or informally, we have a pretty good way to know who owns
8803 what tangible property.
8804 </p><p>
8805 So: You walk down a street and see a house. You can know who
8806 owns the house by looking it up in the courthouse registry. If you see
8807 a car, there is ordinarily a license plate that will link the owner to the
8808
8809
8810 car. If you see a bunch of children's toys sitting on the front lawn of a
8811 house, it's fairly easy to determine who owns the toys. And if you
8812                 happen
8813 to see a baseball lying in a gutter on the side of the road, look
8814 around for a second for some kids playing ball. If you don't see any
8815 kids, then okay: Here's a bit of property whose owner we can't easily
8816 determine. It is the exception that proves the rule: that we ordinarily
8817 know quite well who owns what property.
8818 </p><p>
8819 Compare this story to intangible property. You go into a library.
8820 The library owns the books. But who owns the copyrights? As I've
8821                 already
8822 described, there's no list of copyright owners. There are authors'
8823 names, of course, but their copyrights could have been assigned, or
8824 passed down in an estate like Grandma's old jewelry. To know who
8825 owns what, you would have to hire a private detective. The bottom
8826 line: The owner cannot easily be located. And in a regime like ours, in
8827 which it is a felony to use such property without the property owner's
8828 permission, the property isn't going to be used.
8829 </p><p>
8830 The consequence with respect to old books is that they won't be
8831 digitized, and hence will simply rot away on shelves. But the
8832                 consequence
8833 for other creative works is much more dire.
8834 </p><a class="indexterm" name="idxageemichael"></a><a class="indexterm" name="idp9823472"></a><a class="indexterm" name="idp9824288"></a><a class="indexterm" name="idp9825104"></a><p>
8835 Consider the story of Michael Agee, chairman of Hal Roach Studios,
8836 which owns the copyrights for the Laurel and Hardy films. Agee is a
8837 direct beneficiary of the Bono Act. The Laurel and Hardy films were
8838 made between 1921 and 1951. Only one of these films, <em class="citetitle">The Lucky Dog</em>, is
8839 currently out of copyright. But for the CTEA, films made after 1923
8840 would have begun entering the public domain. Because Agee controls the
8841 exclusive rights for these popular films, he makes a great deal of
8842 money. According to one estimate, <span class="quote">«<span class="quote">Roach has sold about 60,000
8843 videocassettes and 50,000 DVDs of the duo's silent
8844 films.</span>»</span><a href="#ftn.idp9827472" class="footnote" name="idp9827472"><sup class="footnote">[189]</sup></a>
8845 </p><p>
8846 Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in
8847 this culture: selflessness. He argued in a brief before the Supreme
8848 Court that the Sonny Bono Copyright Term Extension Act will, if left
8849 standing, destroy a whole generation of American film.
8850 </p><p>
8851 His argument is straightforward. A tiny fraction of this work has
8852
8853
8854 any continuing commercial value. The rest&#8212;to the extent it
8855 survives at all&#8212;sits in vaults gathering dust. It may be that
8856 some of this work not now commercially valuable will be deemed to be
8857 valuable by the owners of the vaults. For this to occur, however, the
8858 commercial benefit from the work must exceed the costs of making the
8859 work available for distribution.
8860 </p><p>
8861 We can't know the benefits, but we do know a lot about the costs.
8862 For most of the history of film, the costs of restoring film were very
8863 high; digital technology has lowered these costs substantially. While
8864 it cost more than $10,000 to restore a ninety-minute black-and-white
8865 film in 1993, it can now cost as little as $100 to digitize one hour of
8866 8 mm film.<a href="#ftn.idp9832784" class="footnote" name="idp9832784"><sup class="footnote">[190]</sup></a>
8867
8868 </p><p>
8869 Restoration technology is not the only cost, nor the most
8870                 important.
8871 Lawyers, too, are a cost, and increasingly, a very important one. In
8872 addition to preserving the film, a distributor needs to secure the rights.
8873 And to secure the rights for a film that is under copyright, you need to
8874 locate the copyright owner.
8875 </p><p>
8876 Or more accurately, <span class="emphasis"><em>owners</em></span>. As we've seen, there
8877 isn't only a single copyright associated with a film; there are
8878 many. There isn't a single person whom you can contact about those
8879 copyrights; there are as many as can hold the rights, which turns out
8880 to be an extremely large number. Thus the costs of clearing the rights
8881 to these films is exceptionally high.
8882 </p><p>
8883 <span class="quote">«<span class="quote">But can't you just restore the film, distribute it, and then pay the
8884 copyright owner when she shows up?</span>»</span> Sure, if you want to commit a
8885 felony. And even if you're not worried about committing a felony, when
8886 she does show up, she'll have the right to sue you for all the profits you
8887 have made. So, if you're successful, you can be fairly confident you'll be
8888 getting a call from someone's lawyer. And if you're not successful, you
8889 won't make enough to cover the costs of your own lawyer. Either way,
8890 you have to talk to a lawyer. And as is too often the case, saying you have
8891 to talk to a lawyer is the same as saying you won't make any money.
8892 </p><p>
8893 For some films, the benefit of releasing the film may well exceed
8894
8895
8896 these costs. But for the vast majority of them, there is no way the
8897                 benefit
8898 would outweigh the legal costs. Thus, for the vast majority of old
8899 films, Agee argued, the film will not be restored and distributed until
8900 the copyright expires.
8901 </p><a class="indexterm" name="idp9840816"></a><p>
8902 But by the time the copyright for these films expires, the film will
8903 have expired. These films were produced on nitrate-based stock, and
8904 nitrate stock dissolves over time. They will be gone, and the metal
8905                 canisters
8906 in which they are now stored will be filled with nothing more
8907 than dust.
8908 </p><p>
8909 <span class="strong"><strong>Of all the</strong></span> creative work produced
8910 by humans anywhere, a tiny fraction has continuing commercial
8911 value. For that tiny fraction, the copyright is a crucially important
8912 legal device. For that tiny fraction, the copyright creates incentives
8913 to produce and distribute the creative work. For that tiny fraction,
8914 the copyright acts as an <span class="quote">«<span class="quote">engine of free expression.</span>»</span>
8915 </p><p>
8916 But even for that tiny fraction, the actual time during which the
8917 creative work has a commercial life is extremely short. As I've
8918                 indicated,
8919 most books go out of print within one year. The same is true of
8920 music and film. Commercial culture is sharklike. It must keep moving.
8921 And when a creative work falls out of favor with the commercial
8922                 distributors,
8923 the commercial life ends.
8924 </p><p>
8925 Yet that doesn't mean the life of the creative work ends. We don't
8926 keep libraries of books in order to compete with Barnes &amp; Noble, and
8927 we don't have archives of films because we expect people to choose
8928                 between
8929 spending Friday night watching new movies and spending
8930                 Friday
8931 night watching a 1930 news documentary. The noncommercial life
8932 of culture is important and valuable&#8212;for entertainment but also, and
8933 more importantly, for knowledge. To understand who we are, and
8934 where we came from, and how we have made the mistakes that we
8935 have, we need to have access to this history.
8936 </p><p>
8937 Copyrights in this context do not drive an engine of free expression.
8938
8939
8940 In this context, there is no need for an exclusive right. Copyrights in
8941 this context do no good.
8942 </p><p>
8943 Yet, for most of our history, they also did little harm. For most of
8944 our history, when a work ended its commercial life, there was no
8945 <span class="emphasis"><em>copyright-related use</em></span> that would be inhibited by
8946 an exclusive right.  When a book went out of print, you could not buy
8947 it from a publisher.  But you could still buy it from a used book
8948 store, and when a used book store sells it, in America, at least,
8949 there is no need to pay the copyright owner anything. Thus, the
8950 ordinary use of a book after its commercial life ended was a use that
8951 was independent of copyright law.
8952 </p><p>
8953 The same was effectively true of film. Because the costs of restoring
8954 a film&#8212;the real economic costs, not the lawyer costs&#8212;were
8955 so high, it was never at all feasible to preserve or restore
8956 film. Like the remains of a great dinner, when it's over, it's
8957 over. Once a film passed out of its commercial life, it may have been
8958 archived for a bit, but that was the end of its life so long as the
8959 market didn't have more to offer.
8960 </p><p>
8961 In other words, though copyright has been relatively short for most
8962 of our history, long copyrights wouldn't have mattered for the works
8963 that lost their commercial value. Long copyrights for these works
8964 would not have interfered with anything.
8965 </p><p>
8966 But this situation has now changed.
8967 </p><a class="indexterm" name="idxarchivesdigital2"></a><p>
8968 One crucially important consequence of the emergence of digital
8969 technologies is to enable the archive that Brewster Kahle dreams of.
8970 Digital technologies now make it possible to preserve and give access
8971 to all sorts of knowledge. Once a book goes out of print, we can now
8972 imagine digitizing it and making it available to everyone,
8973 forever. Once a film goes out of distribution, we could digitize it
8974 and make it available to everyone, forever. Digital technologies give
8975 new life to copyrighted material after it passes out of its commercial
8976 life. It is now possible to preserve and assure universal access to
8977 this knowledge and culture, whereas before it was not.
8978 </p><p>
8979
8980 And now copyright law does get in the way. Every step of producing
8981 this digital archive of our culture infringes on the exclusive right
8982 of copyright. To digitize a book is to copy it. To do that requires
8983 permission of the copyright owner. The same with music, film, or any
8984 other aspect of our culture protected by copyright. The effort to make
8985 these things available to history, or to researchers, or to those who
8986 just want to explore, is now inhibited by a set of rules that were
8987 written for a radically different context.
8988 </p><p>
8989 Here is the core of the harm that comes from extending terms: Now that
8990 technology enables us to rebuild the library of Alexandria, the law
8991 gets in the way. And it doesn't get in the way for any useful
8992 <span class="emphasis"><em>copyright</em></span> purpose, for the purpose of copyright
8993 is to enable the commercial market that spreads culture. No, we are
8994 talking about culture after it has lived its commercial life. In this
8995 context, copyright is serving no purpose <span class="emphasis"><em>at all</em></span>
8996 related to the spread of knowledge. In this context, copyright is not
8997 an engine of free expression. Copyright is a brake.
8998 </p><p>
8999 You may well ask, <span class="quote">«<span class="quote">But if digital technologies lower the costs for
9000 Brewster Kahle, then they will lower the costs for Random House, too.
9001 So won't Random House do as well as Brewster Kahle in spreading
9002 culture widely?</span>»</span>
9003 </p><p>
9004 Maybe. Someday. But there is absolutely no evidence to suggest that
9005 publishers would be as complete as libraries. If Barnes &amp; Noble
9006 offered to lend books from its stores for a low price, would that
9007 eliminate the need for libraries? Only if you think that the only role
9008 of a library is to serve what <span class="quote">«<span class="quote">the market</span>»</span> would demand. But if you
9009 think the role of a library is bigger than this&#8212;if you think its
9010 role is to archive culture, whether there's a demand for any
9011 particular bit of that culture or not&#8212;then we can't count on the
9012 commercial market to do our library work for us.
9013 </p><a class="indexterm" name="idp9859232"></a><p>
9014 I would be the first to agree that it should do as much as it can: We
9015 should rely upon the market as much as possible to spread and enable
9016 culture. My message is absolutely not antimarket. But where we see the
9017 market is not doing the job, then we should allow nonmarket forces the
9018
9019
9020 freedom to fill the gaps. As one researcher calculated for American
9021 culture, 94 percent of the films, books, and music produced between
9022 1923 and 1946 is not commercially available. However much you love the
9023 commercial market, if access is a value, then 6 percent is a failure
9024 to provide that value.<a href="#ftn.idp9861712" class="footnote" name="idp9861712"><sup class="footnote">[191]</sup></a>
9025
9026 </p><p>
9027 <span class="strong"><strong>In January 1999</strong></span>, we filed a lawsuit
9028 on Eric Eldred's behalf in federal district court in Washington, D.C.,
9029 asking the court to declare the Sonny Bono Copyright Term Extension
9030 Act unconstitutional. The two central claims that we made were (1)
9031 that extending existing terms violated the Constitution's
9032 <span class="quote">«<span class="quote">limited Times</span>»</span> requirement, and (2) that extending terms
9033 by another twenty years violated the First Amendment.
9034 </p><p>
9035 The district court dismissed our claims without even hearing an
9036 argument.  A panel of the Court of Appeals for the D.C. Circuit also
9037 dismissed our claims, though after hearing an extensive argument. But
9038 that decision at least had a dissent, by one of the most conservative
9039 judges on that court. That dissent gave our claims life.
9040 </p><p>
9041 Judge David Sentelle said the CTEA violated the requirement that
9042 copyrights be for <span class="quote">«<span class="quote">limited Times</span>»</span> only. His argument was as elegant as
9043 it was simple: If Congress can extend existing terms, then there is no
9044 <span class="quote">«<span class="quote">stopping point</span>»</span> to Congress's power under the Copyright Clause. The
9045 power to extend existing terms means Congress is not required to grant
9046 terms that are <span class="quote">«<span class="quote">limited.</span>»</span> Thus, Judge Sentelle argued, the court had
9047 to interpret the term <span class="quote">«<span class="quote">limited Times</span>»</span> to give it meaning. And the best
9048 interpretation, Judge Sentelle argued, would be to deny Congress the
9049 power to extend existing terms.
9050 </p><p>
9051 We asked the Court of Appeals for the D.C. Circuit as a whole to
9052 hear the case. Cases are ordinarily heard in panels of three, except for
9053 important cases or cases that raise issues specific to the circuit as a
9054 whole, where the court will sit <span class="quote">«<span class="quote">en banc</span>»</span> to hear the case.
9055 </p><a class="indexterm" name="idp9870160"></a><p>
9056 The Court of Appeals rejected our request to hear the case en banc.
9057 This time, Judge Sentelle was joined by the most liberal member of the
9058
9059
9060 D.C. Circuit, Judge David Tatel. Both the most conservative and the
9061 most liberal judges in the D.C. Circuit believed Congress had
9062 overstepped its bounds.
9063 </p><p>
9064 It was here that most expected Eldred v. Ashcroft would die, for the
9065 Supreme Court rarely reviews any decision by a court of appeals. (It
9066 hears about one hundred cases a year, out of more than five thousand
9067 appeals.) And it practically never reviews a decision that upholds a
9068 statute when no other court has yet reviewed the statute.
9069 </p><p>
9070 But in February 2002, the Supreme Court surprised the world by
9071 granting our petition to review the D.C. Circuit opinion. Argument
9072 was set for October of 2002. The summer would be spent writing
9073 briefs and preparing for argument.
9074 </p><p>
9075 <span class="strong"><strong>It is over</strong></span> a year later as I write
9076 these words. It is still astonishingly hard. If you know anything at
9077 all about this story, you know that we lost the appeal. And if you
9078 know something more than just the minimum, you probably think there
9079 was no way this case could have been won. After our defeat, I received
9080 literally thousands of missives by well-wishers and supporters,
9081 thanking me for my work on behalf of this noble but doomed cause. And
9082 none from this pile was more significant to me than the e-mail from my
9083 client, Eric Eldred.
9084 </p><p>
9085 But my client and these friends were wrong. This case could have
9086 been won. It should have been won. And no matter how hard I try to
9087 retell this story to myself, I can never escape believing that my own
9088 mistake lost it.
9089 </p><a class="indexterm" name="idp9876112"></a><p>
9090 <span class="strong"><strong>The mistake</strong></span> was made early, though
9091 it became obvious only at the very end. Our case had been supported
9092 from the very beginning by an extraordinary lawyer, Geoffrey Stewart,
9093 and by the law firm he had moved to, Jones, Day, Reavis and
9094 Pogue. Jones Day took a great deal of heat
9095
9096 from its copyright-protectionist clients for supporting us. They
9097 ignored this pressure (something that few law firms today would ever
9098 do), and throughout the case, they gave it everything they could.
9099 </p><a class="indexterm" name="idp9878832"></a><a class="indexterm" name="idp9879616"></a><a class="indexterm" name="idp9880432"></a><p>
9100 There were three key lawyers on the case from Jones Day. Geoff
9101 Stewart was the first, but then Dan Bromberg and Don Ayer became
9102 quite involved. Bromberg and Ayer in particular had a common view
9103 about how this case would be won: We would only win, they repeatedly
9104 told me, if we could make the issue seem <span class="quote">«<span class="quote">important</span>»</span> to the Supreme
9105 Court. It had to seem as if dramatic harm were being done to free
9106 speech and free culture; otherwise, they would never vote against <span class="quote">«<span class="quote">the
9107 most powerful media companies in the world.</span>»</span>
9108 </p><p>
9109 I hate this view of the law. Of course I thought the Sonny Bono Act
9110 was a dramatic harm to free speech and free culture. Of course I still
9111 think it is. But the idea that the Supreme Court decides the law based
9112 on how important they believe the issues are is just wrong. It might be
9113 <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
9114 that way.</span>»</span> As I believed that any faithful interpretation of what the
9115 framers of our Constitution did would yield the conclusion that the
9116 CTEA was unconstitutional, and as I believed that any faithful
9117                 interpretation
9118 of what the First Amendment means would yield the
9119 conclusion that the power to extend existing copyright terms is
9120                 unconstitutional,
9121 I was not persuaded that we had to sell our case like soap.
9122 Just as a law that bans the swastika is unconstitutional not because the
9123 Court likes Nazis but because such a law would violate the
9124                 Constitution,
9125 so too, in my view, would the Court decide whether Congress's
9126 law was constitutional based on the Constitution, not based on whether
9127 they liked the values that the framers put in the Constitution.
9128 </p><p>
9129 In any case, I thought, the Court must already see the danger and
9130 the harm caused by this sort of law. Why else would they grant review?
9131 There was no reason to hear the case in the Supreme Court if they
9132 weren't convinced that this regulation was harmful. So in my view, we
9133 didn't need to persuade them that this law was bad, we needed to show
9134 why it was unconstitutional.
9135 </p><p>
9136 There was one way, however, in which I felt politics would matter
9137
9138
9139 and in which I thought a response was appropriate. I was convinced
9140 that the Court would not hear our arguments if it thought these were
9141 just the arguments of a group of lefty loons. This Supreme Court was
9142 not about to launch into a new field of judicial review if it seemed
9143 that this field of review was simply the preference of a small
9144 political minority.  Although my focus in the case was not to
9145 demonstrate how bad the Sonny Bono Act was but to demonstrate that it
9146 was unconstitutional, my hope was to make this argument against a
9147 background of briefs that covered the full range of political
9148 views. To show that this claim against the CTEA was grounded in
9149 <span class="emphasis"><em>law</em></span> and not politics, then, we tried to gather
9150 the widest range of credible critics&#8212;credible not because they
9151 were rich and famous, but because they, in the aggregate, demonstrated
9152 that this law was unconstitutional regardless of one's politics.
9153 </p><a class="indexterm" name="idp9889840"></a><a class="indexterm" name="idp9890624"></a><p>
9154 The first step happened all by itself. Phyllis Schlafly's
9155 organization, Eagle Forum, had been an opponent of the CTEA from the
9156 very beginning.  Mrs. Schlafly viewed the CTEA as a sellout by
9157 Congress. In November 1998, she wrote a stinging editorial attacking
9158 the Republican Congress for allowing the law to pass. As she wrote,
9159 <span class="quote">«<span class="quote">Do you sometimes wonder why bills that create a financial windfall to
9160 narrow special interests slide easily through the intricate
9161 legislative process, while bills that benefit the general public seem
9162 to get bogged down?</span>»</span>  The answer, as the editorial documented, was the
9163 power of money.  Schlafly enumerated Disney's contributions to the key
9164 players on the committees. It was money, not justice, that gave Mickey
9165 Mouse twenty more years in Disney's control, Schlafly argued.
9166 </p><p>
9167 In the Court of Appeals, Eagle Forum was eager to file a brief
9168 supporting our position. Their brief made the argument that became the
9169 core claim in the Supreme Court: If Congress can extend the term of
9170 existing copyrights, there is no limit to Congress's power to set
9171 terms.  That strong conservative argument persuaded a strong
9172 conservative judge, Judge Sentelle.
9173 </p><a class="indexterm" name="idp9893840"></a><a class="indexterm" name="idp9894672"></a><a class="indexterm" name="idp9895488"></a><a class="indexterm" name="idp9896304"></a><p>
9174 In the Supreme Court, the briefs on our side were about as diverse as
9175 it gets. They included an extraordinary historical brief by the Free
9176
9177
9178 Software Foundation (home of the GNU project that made GNU/Linux
9179 possible). They included a powerful brief about the costs of
9180 uncertainty by Intel. There were two law professors' briefs, one by
9181 copyright scholars and one by First Amendment scholars. There was an
9182 exhaustive and uncontroverted brief by the world's experts in the
9183 history of the Progress Clause. And of course, there was a new brief
9184 by Eagle Forum, repeating and strengthening its arguments.
9185 </p><a class="indexterm" name="idp9898464"></a><a class="indexterm" name="idp9899264"></a><p>
9186 Those briefs framed a legal argument. Then to support the legal
9187 argument, there were a number of powerful briefs by libraries and
9188 archives, including the Internet Archive, the American Association of
9189 Law Libraries, and the National Writers Union.
9190 </p><a class="indexterm" name="idp9900736"></a><p>
9191 But two briefs captured the policy argument best. One made the
9192 argument I've already described: A brief by Hal Roach Studios argued
9193 that unless the law was struck, a whole generation of American film
9194 would disappear. The other made the economic argument absolutely
9195 clear.
9196 </p><a class="indexterm" name="idp9902224"></a><a class="indexterm" name="idp9903040"></a><a class="indexterm" name="idp9903856"></a><a class="indexterm" name="idp9904672"></a><a class="indexterm" name="idp9905488"></a><p>
9197 This economists' brief was signed by seventeen economists, including
9198 five Nobel Prize winners, including Ronald Coase, James Buchanan,
9199 Milton Friedman, Kenneth Arrow, and George Akerlof. The economists, as
9200 the list of Nobel winners demonstrates, spanned the political
9201 spectrum. Their conclusions were powerful: There was no plausible
9202 claim that extending the terms of existing copyrights would do
9203 anything to increase incentives to create. Such extensions were
9204 nothing more than <span class="quote">«<span class="quote">rent-seeking</span>»</span>&#8212;the fancy term economists use
9205 to describe special-interest legislation gone wild.
9206 </p><a class="indexterm" name="idp9908112"></a><a class="indexterm" name="idp9908896"></a><a class="indexterm" name="idp9909712"></a><a class="indexterm" name="idp9910528"></a><p>
9207 The same effort at balance was reflected in the legal team we gathered
9208 to write our briefs in the case. The Jones Day lawyers had been with
9209 us from the start. But when the case got to the Supreme Court, we
9210 added three lawyers to help us frame this argument to this Court: Alan
9211 Morrison, a lawyer from Public Citizen, a Washington group that had
9212 made constitutional history with a series of seminal victories in the
9213 Supreme Court defending individual rights; my colleague and dean,
9214 Kathleen Sullivan, who had argued many cases in the Court, and
9215
9216
9217 who had advised us early on about a First Amendment strategy; and
9218 finally, former solicitor general Charles Fried.
9219 </p><a class="indexterm" name="idp9912736"></a><a class="indexterm" name="idp9913520"></a><a class="indexterm" name="idp9914640"></a><p>
9220 Fried was a special victory for our side. Every other former solicitor
9221 general was hired by the other side to defend Congress's power to give
9222 media companies the special favor of extended copyright terms. Fried
9223 was the only one who turned down that lucrative assignment to stand up
9224 for something he believed in. He had been Ronald Reagan's chief lawyer
9225 in the Supreme Court. He had helped craft the line of cases that
9226 limited Congress's power in the context of the Commerce Clause. And
9227 while he had argued many positions in the Supreme Court that I
9228 personally disagreed with, his joining the cause was a vote of
9229 confidence in our argument.
9230 </p><p>
9231 The government, in defending the statute, had its collection of
9232 friends, as well. Significantly, however, none of these <span class="quote">«<span class="quote">friends</span>»</span> included
9233 historians or economists. The briefs on the other side of the case were
9234 written exclusively by major media companies, congressmen, and
9235 copyright holders.
9236 </p><p>
9237 The media companies were not surprising. They had the most to gain
9238 from the law. The congressmen were not surprising either&#8212;they
9239 were defending their power and, indirectly, the gravy train of
9240 contributions such power induced. And of course it was not surprising
9241 that the copyright holders would defend the idea that they should
9242 continue to have the right to control who did what with content they
9243 wanted to control.
9244 </p><a class="indexterm" name="idp9918160"></a><a class="indexterm" name="idp9919552"></a><a class="indexterm" name="idp9920368"></a><p>
9245 Dr. Seuss's representatives, for example, argued that it was
9246 better for the Dr. Seuss estate to control what happened to
9247 Dr. Seuss's work&#8212; better than allowing it to fall into the
9248 public domain&#8212;because if this creativity were in the public
9249 domain, then people could use it to <span class="quote">«<span class="quote">glorify drugs or to create
9250 pornography.</span>»</span><a href="#ftn.idp9922112" class="footnote" name="idp9922112"><sup class="footnote">[192]</sup></a>
9251 That was also the motive of the Gershwin estate, which defended its
9252 <span class="quote">«<span class="quote">protection</span>»</span> of the work of George Gershwin. They refuse, for example,
9253 to license <em class="citetitle">Porgy and Bess</em> to anyone who refuses to use African
9254 Americans in the cast.<a href="#ftn.idp9924928" class="footnote" name="idp9924928"><sup class="footnote">[193]</sup></a>
9255 That's
9256
9257 their view of how this part of American culture should be controlled,
9258 and they wanted this law to help them effect that control.
9259 </p><p>
9260 This argument made clear a theme that is rarely noticed in this
9261 debate.  When Congress decides to extend the term of existing
9262 copyrights, Congress is making a choice about which speakers it will
9263 favor.  Famous and beloved copyright owners, such as the Gershwin
9264 estate and Dr. Seuss, come to Congress and say, <span class="quote">«<span class="quote">Give us twenty years
9265 to control the speech about these icons of American culture. We'll do
9266 better with them than anyone else.</span>»</span> Congress of course likes to reward
9267 the popular and famous by giving them what they want. But when
9268 Congress gives people an exclusive right to speak in a certain way,
9269 that's just what the First Amendment is traditionally meant to block.
9270 </p><p>
9271 We argued as much in a final brief. Not only would upholding the CTEA
9272 mean that there was no limit to the power of Congress to extend
9273 copyrights&#8212;extensions that would further concentrate the market;
9274 it would also mean that there was no limit to Congress's power to play
9275 favorites, through copyright, with who has the right to speak.
9276 </p><p>
9277 <span class="strong"><strong>Between February</strong></span> and October, there
9278 was little I did beyond preparing for this case. Early on, as I said,
9279 I set the strategy.
9280 </p><a class="indexterm" name="idp9930720"></a><a class="indexterm" name="idp9931536"></a><p>
9281 The Supreme Court was divided into two important camps. One camp we
9282 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
9283 Conservatives included Chief Justice Rehnquist, Justice O'Connor,
9284 Justice Scalia, Justice Kennedy, and Justice Thomas. These five had
9285 been the most consistent in limiting Congress's power. They were the
9286 five who had supported the <em class="citetitle">Lopez/Morrison</em> line
9287 of cases that said that an enumerated power had to be interpreted to
9288 assure that Congress's powers had limits.
9289 </p><a class="indexterm" name="idp9934496"></a><a class="indexterm" name="idxginsburg"></a><p>
9290 The Rest were the four Justices who had strongly opposed limits on
9291 Congress's power. These four&#8212;Justice Stevens, Justice Souter,
9292 Justice Ginsburg, and Justice Breyer&#8212;had repeatedly argued that
9293 the Constitution
9294
9295 gives Congress broad discretion to decide how best to implement its
9296 powers. In case after case, these justices had argued that the Court's
9297 role should be one of deference. Though the votes of these four
9298 justices were the votes that I personally had most consistently agreed
9299 with, they were also the votes that we were least likely to get.
9300 </p><p>
9301 In particular, the least likely was Justice Ginsburg's. In addition to
9302 her general view about deference to Congress (except where issues of
9303 gender are involved), she had been particularly deferential in the
9304 context of intellectual property protections. She and her daughter (an
9305 excellent and well-known intellectual property scholar) were cut from
9306 the same intellectual property cloth. We expected she would agree with
9307 the writings of her daughter: that Congress had the power in this
9308 context to do as it wished, even if what Congress wished made little
9309 sense.
9310 </p><a class="indexterm" name="idp9939232"></a><p>
9311 Close behind Justice Ginsburg were two justices whom we also viewed as
9312 unlikely allies, though possible surprises. Justice Souter strongly
9313 favored deference to Congress, as did Justice Breyer. But both were
9314 also very sensitive to free speech concerns. And as we strongly
9315 believed, there was a very important free speech argument against
9316 these retrospective extensions.
9317 </p><a class="indexterm" name="idp9940672"></a><p>
9318 The only vote we could be confident about was that of Justice
9319 Stevens. History will record Justice Stevens as one of the greatest
9320 judges on this Court. His votes are consistently eclectic, which just
9321 means that no simple ideology explains where he will stand. But he
9322 had consistently argued for limits in the context of intellectual property
9323 generally. We were fairly confident he would recognize limits here.
9324 </p><p>
9325 This analysis of <span class="quote">«<span class="quote">the Rest</span>»</span> showed most clearly where our focus had to
9326 be: on the Conservatives. To win this case, we had to crack open these
9327 five and get at least a majority to go our way. Thus, the single
9328 overriding argument that animated our claim rested on the
9329 Conservatives' most important jurisprudential innovation&#8212;the
9330 argument that Judge Sentelle had relied upon in the Court of Appeals,
9331 that Congress's power must be interpreted so that its enumerated
9332 powers have limits.
9333 </p><p>
9334 This then was the core of our strategy&#8212;a strategy for which I am
9335 responsible. We would get the Court to see that just as with the
9336 <em class="citetitle">Lopez</em>
9337
9338 case, under the government's argument here, Congress would always have
9339 unlimited power to extend existing terms. If anything was plain about
9340 Congress's power under the Progress Clause, it was that this power was
9341 supposed to be <span class="quote">«<span class="quote">limited.</span>»</span> Our aim would be to get the Court to
9342 reconcile <em class="citetitle">Eldred</em> with
9343 <em class="citetitle">Lopez</em>: If Congress's power to regulate commerce
9344 was limited, then so, too, must Congress's power to regulate copyright
9345 be limited.
9346 </p><p>
9347 <span class="strong"><strong>The argument</strong></span> on the government's
9348 side came down to this: Congress has done it before. It should be
9349 allowed to do it again. The government claimed that from the very
9350 beginning, Congress has been extending the term of existing
9351 copyrights. So, the government argued, the Court should not now say
9352 that practice is unconstitutional.
9353 </p><p>
9354 There was some truth to the government's claim, but not much. We
9355 certainly agreed that Congress had extended existing terms in 1831
9356 and in 1909. And of course, in 1962, Congress began extending
9357                 existing
9358 terms regularly&#8212;eleven times in forty years.
9359 </p><p>
9360 But this <span class="quote">«<span class="quote">consistency</span>»</span> should be kept in perspective. Congress
9361                 extended
9362 existing terms once in the first hundred years of the Republic.
9363 It then extended existing terms once again in the next fifty. Those rare
9364 extensions are in contrast to the now regular practice of extending
9365                 existing
9366 terms. Whatever restraint Congress had had in the past, that
9367                 restraint
9368 was now gone. Congress was now in a cycle of extensions; there
9369 was no reason to expect that cycle would end. This Court had not
9370                 hesitated
9371 to intervene where Congress was in a similar cycle of extension.
9372 There was no reason it couldn't intervene here.
9373 </p><p>
9374 <span class="strong"><strong>Oral argument</strong></span> was scheduled for the
9375 first week in October. I arrived in D.C. two weeks before the
9376 argument. During those two weeks, I was repeatedly
9377 <span class="quote">«<span class="quote">mooted</span>»</span> by lawyers who had volunteered to
9378
9379
9380 help in the case. Such <span class="quote">«<span class="quote">moots</span>»</span> are basically practice rounds, where
9381 wannabe justices fire questions at wannabe winners.
9382 </p><p>
9383 I was convinced that to win, I had to keep the Court focused on a
9384 single point: that if this extension is permitted, then there is no limit to
9385 the power to set terms. Going with the government would mean that
9386 terms would be effectively unlimited; going with us would give
9387                 Congress
9388 a clear line to follow: Don't extend existing terms. The moots
9389 were an effective practice; I found ways to take every question back to
9390 this central idea.
9391 </p><a class="indexterm" name="idp9954016"></a><a class="indexterm" name="idp9954832"></a><a class="indexterm" name="idp9955648"></a><p>
9392 One moot was before the lawyers at Jones Day. Don Ayer was the
9393 skeptic. He had served in the Reagan Justice Department with Solicitor
9394 General Charles Fried. He had argued many cases before the Supreme
9395 Court. And in his review of the moot, he let his concern speak:
9396 </p><p>
9397 <span class="quote">«<span class="quote">I'm just afraid that unless they really see the harm, they won't be
9398 willing to upset this practice that the government says has been a
9399 consistent practice for two hundred years. You have to make them see
9400 the harm&#8212;passionately get them to see the harm. For if they
9401 don't see that, then we haven't any chance of winning.</span>»</span>
9402 </p><a class="indexterm" name="idp9958368"></a><p>
9403 He may have argued many cases before this Court, I thought, but
9404 he didn't understand its soul. As a clerk, I had seen the Justices do the
9405 right thing&#8212;not because of politics but because it was right. As a law
9406 professor, I had spent my life teaching my students that this Court
9407 does the right thing&#8212;not because of politics but because it is right. As
9408 I listened to Ayer's plea for passion in pressing politics, I understood
9409 his point, and I rejected it. Our argument was right. That was enough.
9410 Let the politicians learn to see that it was also good.
9411 </p><p>
9412 <span class="strong"><strong>The night before</strong></span> the argument, a
9413 line of people began to form in front of the Supreme Court. The case
9414 had become a focus of the press and of the movement to free
9415 culture. Hundreds stood in line
9416
9417
9418 for the chance to see the proceedings. Scores spent the night on the
9419 Supreme Court steps so that they would be assured a seat.
9420 </p><p>
9421 Not everyone has to wait in line. People who know the Justices can
9422 ask for seats they control. (I asked Justice Scalia's chambers for seats for
9423 my parents, for example.) Members of the Supreme Court bar can get
9424 a seat in a special section reserved for them. And senators and
9425                 congressmen
9426 have a special place where they get to sit, too. And finally, of
9427 course, the press has a gallery, as do clerks working for the Justices on
9428 the Court. As we entered that morning, there was no place that was
9429 not taken. This was an argument about intellectual property law, yet
9430 the halls were filled. As I walked in to take my seat at the front of the
9431 Court, I saw my parents sitting on the left. As I sat down at the table,
9432 I saw Jack Valenti sitting in the special section ordinarily reserved for
9433 family of the Justices.
9434 </p><p>
9435 When the Chief Justice called me to begin my argument, I began
9436 where I intended to stay: on the question of the limits on Congress's
9437 power. This was a case about enumerated powers, I said, and whether
9438 those enumerated powers had any limit.
9439 </p><a class="indexterm" name="idp9963600"></a><p>
9440 Justice O'Connor stopped me within one minute of my opening.
9441 The history was bothering her.
9442 </p><div class="blockquote"><blockquote class="blockquote"><p>
9443 justice o'connor: Congress has extended the term so often
9444 through the years, and if you are right, don't we run the risk of
9445 upsetting previous extensions of time? I mean, this seems to be a
9446 practice that began with the very first act.
9447 </p></blockquote></div><p>
9448 She was quite willing to concede <span class="quote">«<span class="quote">that this flies directly in the face
9449 of what the framers had in mind.</span>»</span> But my response again and again
9450 was to emphasize limits on Congress's power.
9451 </p><div class="blockquote"><blockquote class="blockquote"><p>
9452 mr. lessig: Well, if it flies in the face of what the framers had in
9453 mind, then the question is, is there a way of interpreting their
9454
9455 words that gives effect to what they had in mind, and the answer
9456 is yes.
9457 </p></blockquote></div><p>
9458 There were two points in this argument when I should have seen
9459 where the Court was going. The first was a question by Justice
9460 Kennedy, who observed,
9461 </p><div class="blockquote"><blockquote class="blockquote"><p>
9462 justice kennedy: Well, I suppose implicit in the argument that
9463 the '76 act, too, should have been declared void, and that we
9464 might leave it alone because of the disruption, is that for all these
9465 years the act has impeded progress in science and the useful arts.
9466 I just don't see any empirical evidence for that.
9467 </p></blockquote></div><p>
9468 Here follows my clear mistake. Like a professor correcting a
9469                 student,
9470 I answered,
9471 </p><div class="blockquote"><blockquote class="blockquote"><p>
9472 mr. lessig: Justice, we are not making an empirical claim at all.
9473 Nothing in our Copyright Clause claim hangs upon the empirical
9474 assertion about impeding progress. Our only argument is this is a
9475 structural limit necessary to assure that what would be an effectively
9476 perpetual term not be permitted under the copyright laws.
9477 </p></blockquote></div><a class="indexterm" name="idp9971760"></a><p>
9478 That was a correct answer, but it wasn't the right answer. The right
9479 answer was instead that there was an obvious and profound harm. Any
9480 number of briefs had been written about it. He wanted to hear it. And
9481 here was the place Don Ayer's advice should have mattered. This was a
9482 softball; my answer was a swing and a miss.
9483 </p><p>
9484 The second came from the Chief, for whom the whole case had been
9485 crafted. For the Chief Justice had crafted the <em class="citetitle">Lopez</em> ruling,
9486 and we hoped that he would see this case as its second cousin.
9487 </p><p>
9488 It was clear a second into his question that he wasn't at all
9489 sympathetic.  To him, we were a bunch of anarchists. As he asked:
9490
9491
9492 </p><div class="blockquote"><blockquote class="blockquote"><p>
9493 chief justice: Well, but you want more than that. You want the
9494 right to copy verbatim other people's books, don't you?
9495 </p><p>
9496 mr. lessig: We want the right to copy verbatim works that
9497 should be in the public domain and would be in the public
9498                 domain
9499 but for a statute that cannot be justified under ordinary First
9500 Amendment analysis or under a proper reading of the limits built
9501 into the Copyright Clause.
9502 </p></blockquote></div><a class="indexterm" name="idp9976736"></a><p>
9503 Things went better for us when the government gave its argument;
9504 for now the Court picked up on the core of our claim. As Justice Scalia
9505 asked Solicitor General Olson,
9506 </p><div class="blockquote"><blockquote class="blockquote"><p>
9507 justice scalia: You say that the functional equivalent of an unlimited
9508 time would be a violation [of the Constitution], but that's precisely
9509 the argument that's being made by petitioners here, that a limited
9510 time which is extendable is the functional equivalent of an unlimited
9511 time.
9512 </p></blockquote></div><p>
9513 When Olson was finished, it was my turn to give a closing rebuttal.
9514 Olson's flailing had revived my anger. But my anger still was directed
9515 to the academic, not the practical. The government was arguing as if
9516 this were the first case ever to consider limits on Congress's
9517 Copyright and Patent Clause power. Ever the professor and not the
9518 advocate, I closed by pointing out the long history of the Court
9519 imposing limits on Congress's power in the name of the Copyright and
9520 Patent Clause&#8212; indeed, the very first case striking a law of
9521 Congress as exceeding a specific enumerated power was based upon the
9522 Copyright and Patent Clause. All true. But it wasn't going to move the
9523 Court to my side.
9524 </p><p>
9525 <span class="strong"><strong>As I left</strong></span> the court that day, I
9526 knew there were a hundred points I wished I could remake. There were a
9527 hundred questions I wished I had
9528
9529
9530 answered differently. But one way of thinking about this case left me
9531 optimistic.
9532 </p><p>
9533 The government had been asked over and over again, what is the limit?
9534 Over and over again, it had answered there is no limit. This was
9535 precisely the answer I wanted the Court to hear. For I could not
9536 imagine how the Court could understand that the government believed
9537 Congress's power was unlimited under the terms of the Copyright
9538 Clause, and sustain the government's argument. The solicitor general
9539 had made my argument for me. No matter how often I tried, I could not
9540 understand how the Court could find that Congress's power under the
9541 Commerce Clause was limited, but under the Copyright Clause,
9542 unlimited. In those rare moments when I let myself believe that we may
9543 have prevailed, it was because I felt this Court&#8212;in particular,
9544 the Conservatives&#8212;would feel itself constrained by the rule of
9545 law that it had established elsewhere.
9546 </p><p>
9547 <span class="strong"><strong>The morning</strong></span> of January 15, 2003, I
9548 was five minutes late to the office and missed the 7:00 A.M. call from
9549 the Supreme Court clerk. Listening to the message, I could tell in an
9550 instant that she had bad news to report.The Supreme Court had affirmed
9551 the decision of the Court of Appeals. Seven justices had voted in the
9552 majority. There were two dissents.
9553 </p><p>
9554 A few seconds later, the opinions arrived by e-mail. I took the
9555 phone off the hook, posted an announcement to our blog, and sat
9556 down to see where I had been wrong in my reasoning.
9557 </p><p>
9558 My <span class="emphasis"><em>reasoning</em></span>. Here was a case that pitted all the
9559 money in the world against <span class="emphasis"><em>reasoning</em></span>. And here
9560 was the last naïve law professor, scouring the pages, looking for
9561 reasoning.
9562 </p><p>
9563 I first scoured the opinion, looking for how the Court would
9564 distinguish the principle in this case from the principle in
9565 <em class="citetitle">Lopez</em>. The argument was nowhere to be found. The case was not even
9566 cited. The argument that was the core argument of our case did not
9567 even appear in the Court's opinion.
9568 </p><a class="indexterm" name="idp9987744"></a><p>
9569
9570
9571 Justice Ginsburg simply ignored the enumerated powers argument.
9572 Consistent with her view that Congress's power was not limited
9573 generally, she had found Congress's power not limited here.
9574 </p><p>
9575 Her opinion was perfectly reasonable&#8212;for her, and for Justice
9576 Souter. Neither believes in <em class="citetitle">Lopez</em>. It would be too much to expect them
9577 to write an opinion that recognized, much less explained, the doctrine
9578 they had worked so hard to defeat.
9579 </p><p>
9580 But as I realized what had happened, I couldn't quite believe what I
9581 was reading. I had said there was no way this Court could reconcile
9582 limited powers with the Commerce Clause and unlimited powers with the
9583 Progress Clause. It had never even occurred to me that they could
9584 reconcile the two simply <span class="emphasis"><em>by not addressing the
9585 argument</em></span>. There was no inconsistency because they would not
9586 talk about the two together.  There was therefore no principle that
9587 followed from the <em class="citetitle">Lopez</em> case: In that context, Congress's power would
9588 be limited, but in this context it would not.
9589 </p><p>
9590 Yet by what right did they get to choose which of the framers' values
9591 they would respect? By what right did they&#8212;the silent
9592 five&#8212;get to select the part of the Constitution they would
9593 enforce based on the values they thought important? We were right back
9594 to the argument that I said I hated at the start: I had failed to
9595 convince them that the issue here was important, and I had failed to
9596 recognize that however much I might hate a system in which the Court
9597 gets to pick the constitutional values that it will respect, that is
9598 the system we have.
9599 </p><a class="indexterm" name="idp9989808"></a><p>
9600 Justices Breyer and Stevens wrote very strong dissents. Stevens's
9601 opinion was crafted internal to the law: He argued that the tradition
9602 of intellectual property law should not support this unjustified
9603 extension of terms. He based his argument on a parallel analysis that
9604 had governed in the context of patents (so had we). But the rest of
9605 the Court discounted the parallel&#8212;without explaining how the
9606 very same words in the Progress Clause could come to mean totally
9607 different things depending upon whether the words were about patents
9608 or copyrights.  The Court let Justice Stevens's charge go unanswered.
9609 </p><a class="indexterm" name="idp9994400"></a><p>
9610
9611 Justice Breyer's opinion, perhaps the best opinion he has ever
9612 written, was external to the Constitution. He argued that the term of
9613 copyrights has become so long as to be effectively unlimited. We had
9614 said that under the current term, a copyright gave an author 99.8
9615 percent of the value of a perpetual term. Breyer said we were wrong,
9616 that the actual number was 99.9997 percent of a perpetual term. Either
9617 way, the point was clear: If the Constitution said a term had to be
9618 <span class="quote">«<span class="quote">limited,</span>»</span> and the existing term was so long as to be effectively
9619 unlimited, then it was unconstitutional.
9620 </p><p>
9621 These two justices understood all the arguments we had made. But
9622 because neither believed in the <em class="citetitle">Lopez</em> case, neither was willing to push
9623 it as a reason to reject this extension. The case was decided without
9624 anyone having addressed the argument that we had carried from Judge
9625 Sentelle. It was <em class="citetitle">Hamlet</em> without the Prince.
9626 </p><p>
9627 <span class="strong"><strong>Defeat brings depression</strong></span>. They say
9628 it is a sign of health when depression gives way to anger. My anger
9629 came quickly, but it didn't cure the depression. This anger was of two
9630 sorts.
9631 </p><a class="indexterm" name="idp10000544"></a><p>
9632 It was first anger with the five <span class="quote">«<span class="quote">Conservatives.</span>»</span> It would have been
9633 one thing for them to have explained why the principle of <em class="citetitle">Lopez</em> didn't
9634 apply in this case. That wouldn't have been a very convincing
9635 argument, I don't believe, having read it made by others, and having
9636 tried to make it myself. But it at least would have been an act of
9637 integrity.  These justices in particular have repeatedly said that the
9638 proper mode of interpreting the Constitution is <span class="quote">«<span class="quote">originalism</span>»</span>&#8212;to
9639 first understand the framers' text, interpreted in their context, in
9640 light of the structure of the Constitution. That method had produced
9641 <em class="citetitle">Lopez</em> and many other <span class="quote">«<span class="quote">originalist</span>»</span> rulings. Where was their
9642 <span class="quote">«<span class="quote">originalism</span>»</span> now?
9643 </p><p>
9644 Here, they had joined an opinion that never once tried to explain
9645 what the framers had meant by crafting the Progress Clause as they
9646 did; they joined an opinion that never once tried to explain how the
9647 structure of that clause would affect the interpretation of Congress's
9648
9649
9650 power. And they joined an opinion that didn't even try to explain why
9651 this grant of power could be unlimited, whereas the Commerce Clause
9652 would be limited. In short, they had joined an opinion that did not
9653 apply to, and was inconsistent with, their own method for interpreting
9654 the Constitution. This opinion may well have yielded a result that
9655 they liked. It did not produce a reason that was consistent with their
9656 own principles.
9657 </p><p>
9658 My anger with the Conservatives quickly yielded to anger with
9659                 myself.
9660 For I had let a view of the law that I liked interfere with a view of
9661 the law as it is.
9662 </p><a class="indexterm" name="idp10006992"></a><p>
9663 Most lawyers, and most law professors, have little patience for
9664 idealism about courts in general and this Supreme Court in particular.
9665 Most have a much more pragmatic view. When Don Ayer said that this
9666 case would be won based on whether I could convince the Justices that
9667 the framers' values were important, I fought the idea, because I
9668 didn't want to believe that that is how this Court decides. I insisted
9669 on arguing this case as if it were a simple application of a set of
9670 principles.  I had an argument that followed in logic. I didn't need
9671 to waste my time showing it should also follow in popularity.
9672 </p><p>
9673 As I read back over the transcript from that argument in October, I
9674 can see a hundred places where the answers could have taken the
9675 conversation in different directions, where the truth about the harm
9676 that this unchecked power will cause could have been made clear to
9677 this Court. Justice Kennedy in good faith wanted to be shown. I,
9678 idiotically, corrected his question. Justice Souter in good faith
9679 wanted to be shown the First Amendment harms. I, like a math teacher,
9680 reframed the question to make the logical point. I had shown them how
9681 they could strike this law of Congress if they wanted to. There were a
9682 hundred places where I could have helped them want to, yet my
9683 stubbornness, my refusal to give in, stopped me. I have stood before
9684 hundreds of audiences trying to persuade; I have used passion in that
9685 effort to persuade; but I
9686
9687 refused to stand before this audience and try to persuade with the
9688 passion I had used elsewhere. It was not the basis on which a court
9689 should decide the issue.
9690 </p><a class="indexterm" name="idp10011360"></a><a class="indexterm" name="idp10012144"></a><p>
9691 Would it have been different if I had argued it differently? Would it
9692 have been different if Don Ayer had argued it? Or Charles Fried? Or
9693 Kathleen Sullivan?
9694 </p><p>
9695 My friends huddled around me to insist it would not. The Court
9696 was not ready, my friends insisted. This was a loss that was destined. It
9697 would take a great deal more to show our society why our framers were
9698 right. And when we do that, we will be able to show that Court.
9699 </p><p>
9700 Maybe, but I doubt it. These Justices have no financial interest in
9701 doing anything except the right thing. They are not lobbied. They have
9702 little reason to resist doing right. I can't help but think that if I had
9703 stepped down from this pretty picture of dispassionate justice, I could
9704 have persuaded.
9705 </p><a class="indexterm" name="idp10014896"></a><p>
9706 And even if I couldn't, then that doesn't excuse what happened in
9707 January. For at the start of this case, one of America's leading
9708 intellectual property professors stated publicly that my bringing this
9709 case was a mistake. <span class="quote">«<span class="quote">The Court is not ready,</span>»</span> Peter Jaszi said; this
9710 issue should not be raised until it is.
9711 </p><p>
9712 After the argument and after the decision, Peter said to me, and
9713 publicly, that he was wrong. But if indeed that Court could not have
9714 been persuaded, then that is all the evidence that's needed to know that
9715 here again Peter was right. Either I was not ready to argue this case in
9716 a way that would do some good or they were not ready to hear this case
9717 in a way that would do some good. Either way, the decision to bring
9718 this case&#8212;a decision I had made four years before&#8212;was wrong.
9719 </p><p>
9720 <span class="strong"><strong>While the reaction</strong></span> to the Sonny
9721 Bono Act itself was almost unanimously negative, the reaction to the
9722 Court's decision was mixed.  No one, at least in the press, tried to
9723 say that extending the term of copyright was a good idea. We had won
9724 that battle over ideas. Where
9725
9726
9727 the decision was praised, it was praised by papers that had been
9728 skeptical of the Court's activism in other cases. Deference was a good
9729 thing, even if it left standing a silly law. But where the decision
9730 was attacked, it was attacked because it left standing a silly and
9731 harmful law. <em class="citetitle">The New York Times</em> wrote in its editorial,
9732 </p><div class="blockquote"><blockquote class="blockquote"><p>
9733 In effect, the Supreme Court's decision makes it likely that we are
9734 seeing the beginning of the end of public domain and the birth of
9735 copyright perpetuity. The public domain has been a grand experiment,
9736 one that should not be allowed to die. The ability to draw freely on
9737 the entire creative output of humanity is one of the reasons we live
9738 in a time of such fruitful creative ferment.
9739 </p></blockquote></div><p>
9740 The best responses were in the cartoons. There was a gaggle of
9741 hilarious images&#8212;of Mickey in jail and the like. The best, from
9742 my view of the case, was Ruben Bolling's, reproduced in
9743 <a class="xref" href="#fig-18" title="Figure 13.1. Tom the Dancing Bug cartoon">Figure 13.1, &#8220;Tom the Dancing Bug cartoon&#8221;</a>. The <span class="quote">«<span class="quote">powerful and wealthy</span>»</span> line is a bit
9744 unfair. But the punch in the face felt exactly like that.
9745 <a class="indexterm" name="idp10023104"></a>
9746 </p><div class="figure"><a name="fig-18"></a><p class="title"><b>Figure 13.1. Tom the Dancing Bug cartoon</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="95%"><tr><td align="center"><img src="images/18.png" align="middle" width="100%" alt="Tom the Dancing Bug cartoon"></td></tr></table></div><a class="indexterm" name="idp10026416"></a></div></div><br class="figure-break"><p>
9747 The image that will always stick in my head is that evoked by the
9748 quote from <em class="citetitle">The New York Times</em>. That <span class="quote">«<span class="quote">grand experiment</span>»</span> we call the
9749 <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,
9750 I shrunk the Constitution.</span>»</span> But I can rarely make light of it. We had
9751 in our Constitution a commitment to free culture. In the case that I
9752 fathered, the Supreme Court effectively renounced that commitment. A
9753 better lawyer would have made them see differently.
9754 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp9683664" class="footnote"><p><a href="#idp9683664" class="para"><sup class="para">[179] </sup></a>
9755
9756 <a class="indexterm" name="idp9684400"></a>
9757 There's a parallel here with pornography that is a bit hard to
9758 describe, but it's a strong one. One phenomenon that the Internet
9759 created was a world of noncommercial pornographers&#8212;people who
9760 were distributing porn but were not making money directly or
9761 indirectly from that distribution.  Such a class didn't exist before
9762 the Internet came into being because the costs of distributing porn
9763 were so high. Yet this new class of distributors got special attention
9764 in the Supreme Court, when the Court struck down the Communications
9765 Decency Act of 1996. It was partly because of the burden on
9766 noncommercial speakers that the statute was found to exceed Congress's
9767 power. The same point could have been made about noncommercial
9768 publishers after the advent of the Internet. The Eric Eldreds of the
9769 world before the Internet were extremely few. Yet one would think it
9770 at least as important to protect the Eldreds of the world as to
9771 protect noncommercial pornographers.</p></div><div id="ftn.idp9708080" class="footnote"><p><a href="#idp9708080" class="para"><sup class="para">[180] </sup></a>
9772
9773 <a class="indexterm" name="idp9708784"></a>
9774 <a class="indexterm" name="idp9709568"></a>
9775 The full text is: <span class="quote">«<span class="quote">Sonny [Bono] wanted the term of copyright
9776 protection to last forever. I am informed by staff that such a change
9777 would violate the Constitution. I invite all of you to work with me to
9778 strengthen our copyright laws in all of the ways available to us. As
9779 you know, there is also Jack Valenti's proposal for a term to last
9780 forever less one day. Perhaps the Committee may look at that next
9781 Congress,</span>»</span> 144 Cong. Rec. H9946, 9951-2 (October 7, 1998).
9782 </p></div><div id="ftn.idp9762256" class="footnote"><p><a href="#idp9762256" class="para"><sup class="para">[181] </sup></a>
9783  Associated Press, <span class="quote">«<span class="quote">Disney Lobbying for Copyright Extension No Mickey
9784 Mouse Effort; Congress OKs Bill Granting Creators 20 More Years,</span>»</span>
9785 <em class="citetitle">Chicago Tribune</em>, 17 October 1998, 22.
9786 </p></div><div id="ftn.idp9764256" class="footnote"><p><a href="#idp9764256" class="para"><sup class="para">[182] </sup></a>
9787  See Nick Brown, <span class="quote">«<span class="quote">Fair Use No More?: Copyright in the Information
9788 Age,</span>»</span> available at
9789 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #49</a>.
9790 </p></div><div id="ftn.idp9766368" class="footnote"><p><a href="#idp9766368" class="para"><sup class="para">[183] </sup></a>
9791
9792 Alan K. Ota, <span class="quote">«<span class="quote">Disney in Washington: The Mouse That Roars,</span>»</span>
9793 <em class="citetitle">Congressional Quarterly This Week</em>, 8 August 1990, available at
9794 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #50</a>.
9795 </p></div><div id="ftn.idp9782448" class="footnote"><p><a href="#idp9782448" class="para"><sup class="para">[184] </sup></a>
9796  <em class="citetitle">United States</em> v. <em class="citetitle">Lopez</em>, 514 U.S. 549, 564 (1995).
9797 </p></div><div id="ftn.idp9785696" class="footnote"><p><a href="#idp9785696" class="para"><sup class="para">[185] </sup></a>
9798
9799 <em class="citetitle">United States</em> v. <em class="citetitle">Morrison</em>, 529 U.S. 598 (2000).
9800 </p></div><div id="ftn.idp9787936" class="footnote"><p><a href="#idp9787936" class="para"><sup class="para">[186] </sup></a>
9801
9802 If it is a principle about enumerated powers, then the principle
9803 carries from one enumerated power to another. The animating point in
9804 the context of the Commerce Clause was that the interpretation offered
9805 by the government would allow the government unending power to
9806 regulate commerce&#8212;the limitation to interstate commerce
9807 notwithstanding. The same point is true in the context of the
9808 Copyright Clause. Here, too, the government's interpretation would
9809 allow the government unending power to regulate copyrights&#8212;the
9810 limitation to <span class="quote">«<span class="quote">limited times</span>»</span> notwithstanding.
9811 </p></div><div id="ftn.idp9802352" class="footnote"><p><a href="#idp9802352" class="para"><sup class="para">[187] </sup></a>
9812
9813 Brief of the Nashville Songwriters Association, <em class="citetitle">Eldred</em>
9814 v. <em class="citetitle">Ashcroft</em>, 537 U.S.  186 (2003) (No. 01-618), n.10, available
9815 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #51</a>.
9816 </p></div><div id="ftn.idp9808896" class="footnote"><p><a href="#idp9808896" class="para"><sup class="para">[188] </sup></a>
9817  The figure of 2 percent is an extrapolation from the study by the
9818                 Congressional
9819 Research Service, in light of the estimated renewal ranges. See Brief
9820 of Petitioners, <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 7, available at
9821 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #52</a>.
9822 </p></div><div id="ftn.idp9827472" class="footnote"><p><a href="#idp9827472" class="para"><sup class="para">[189] </sup></a>
9823
9824 See David G. Savage, <span class="quote">«<span class="quote">High Court Scene of Showdown on Copyright Law,</span>»</span>
9825 <em class="citetitle">Los Angeles Times</em>, 6 October 2002; David Streitfeld, <span class="quote">«<span class="quote">Classic Movies,
9826 Songs, Books at Stake; Supreme Court Hears Arguments Today on Striking
9827 Down Copyright Extension,</span>»</span> <em class="citetitle">Orlando Sentinel Tribune</em>, 9 October 2002.
9828 </p></div><div id="ftn.idp9832784" class="footnote"><p><a href="#idp9832784" class="para"><sup class="para">[190] </sup></a>
9829
9830 Brief of Hal Roach Studios and Michael Agee as Amicus Curiae
9831 Supporting the Petitoners, <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 537
9832 U.S. 186 (2003) (No. 01- 618), 12. See also Brief of Amicus Curiae
9833 filed on behalf of Petitioners by the Internet Archive, <em class="citetitle">Eldred</em>
9834 v. <em class="citetitle">Ashcroft</em>, available at
9835 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #53</a>.
9836 </p></div><div id="ftn.idp9861712" class="footnote"><p><a href="#idp9861712" class="para"><sup class="para">[191] </sup></a>
9837
9838 Jason Schultz, <span class="quote">«<span class="quote">The Myth of the 1976 Copyright `Chaos' Theory,</span>»</span> 20
9839 December 2002, available at
9840 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #54</a>.
9841 </p></div><div id="ftn.idp9922112" class="footnote"><p><a href="#idp9922112" class="para"><sup class="para">[192] </sup></a>
9842
9843 Brief of Amici Dr. Seuss Enterprise et al., <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 537
9844 U.S.  (2003) (No. 01-618), 19.
9845 </p></div><div id="ftn.idp9924928" class="footnote"><p><a href="#idp9924928" class="para"><sup class="para">[193] </sup></a>
9846
9847 Dinitia Smith, <span class="quote">«<span class="quote">Immortal Words, Immortal Royalties? Even Mickey
9848 Mouse Joins the Fray,</span>»</span> <em class="citetitle">New York Times</em>, 28 March 1998, B7.
9849 </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>
9850 <span class="strong"><strong>The day</strong></span>
9851 <em class="citetitle">Eldred</em> was decided, fate would have it that I
9852 was to travel to Washington, D.C. (The day the rehearing petition in
9853 <em class="citetitle">Eldred</em> was denied&#8212;meaning the case was
9854 really finally over&#8212;fate would have it that I was giving a
9855 speech to technologists at Disney World.)  This was a particularly
9856 long flight to my least favorite city. The drive into the city from
9857 Dulles was delayed because of traffic, so I opened up my computer and
9858 wrote an op-ed piece.
9859 </p><a class="indexterm" name="idp10034192"></a><p>
9860 It was an act of contrition. During the whole of the flight from San
9861 Francisco to Washington, I had heard over and over again in my head
9862 the same advice from Don Ayer: You need to make them see why it is
9863 important. And alternating with that command was the question of
9864 Justice Kennedy: <span class="quote">«<span class="quote">For all these years the act has impeded progress in
9865 science and the useful arts. I just don't see any empirical evidence for
9866 that.</span>»</span> And so, having failed in the argument of constitutional principle,
9867 finally, I turned to an argument of politics.
9868 </p><p>
9869 <em class="citetitle">The New York Times</em> published the piece. In it, I proposed a simple
9870 fix: Fifty years after a work has been published, the copyright owner
9871
9872 would be required to register the work and pay a small fee. If he paid
9873 the fee, he got the benefit of the full term of copyright. If he did not,
9874 the work passed into the public domain.
9875 </p><p>
9876 We called this the Eldred Act, but that was just to give it a name.
9877 Eric Eldred was kind enough to let his name be used once again, but as
9878 he said early on, it won't get passed unless it has another name.
9879 </p><p>
9880 Or another two names. For depending upon your perspective, this
9881 is either the <span class="quote">«<span class="quote">Public Domain Enhancement Act</span>»</span> or the <span class="quote">«<span class="quote">Copyright
9882 Term Deregulation Act.</span>»</span> Either way, the essence of the idea is clear
9883 and obvious: Remove copyright where it is doing nothing except
9884 blocking access and the spread of knowledge. Leave it for as long as
9885 Congress allows for those works where its worth is at least $1. But for
9886 everything else, let the content go.
9887 </p><a class="indexterm" name="idp10040000"></a><p>
9888 The reaction to this idea was amazingly strong. Steve Forbes endorsed
9889 it in an editorial. I received an avalanche of e-mail and letters
9890 expressing support. When you focus the issue on lost creativity,
9891 people can see the copyright system makes no sense. As a good
9892 Republican might say, here government regulation is simply getting in
9893 the way of innovation and creativity. And as a good Democrat might
9894 say, here the government is blocking access and the spread of
9895 knowledge for no good reason. Indeed, there is no real difference
9896 between Democrats and Republicans on this issue. Anyone can recognize
9897 the stupid harm of the present system.
9898 </p><p>
9899 Indeed, many recognized the obvious benefit of the registration
9900 requirement.  For one of the hardest things about the current system
9901 for people who want to license content is that there is no obvious
9902 place to look for the current copyright owners. Since registration is
9903 not required, since marking content is not required, since no
9904 formality at all is required, it is often impossibly hard to locate
9905 copyright owners to ask permission to use or license their work. This
9906 system would lower these costs, by establishing at least one registry
9907 where copyright owners could be identified.
9908 </p><a class="indexterm" name="idp10043392"></a><a class="indexterm" name="idp10044208"></a><p>
9909
9910 As I described in chapter <a class="xref" href="#property-i" title="Chapter 10. CHAPTER TEN: «Property»">10</a>, formalities in copyright law were
9911 removed in 1976, when Congress followed the Europeans by abandoning
9912 any formal requirement before a copyright is granted.<a href="#ftn.idp10046768" class="footnote" name="idp10046768"><sup class="footnote">[194]</sup></a>
9913 The Europeans are said to view copyright as a <span class="quote">«<span class="quote">natural right.</span>»</span> Natural
9914 rights don't need forms to exist. Traditions, like the Anglo-American
9915 tradition that required copyright owners to follow form if their
9916 rights were to be protected, did not, the Europeans thought, properly
9917 respect the dignity of the author. My right as a creator turns on my
9918 creativity, not upon the special favor of the government.
9919 </p><p>
9920 That's great rhetoric. It sounds wonderfully romantic. But it is
9921 absurd copyright policy. It is absurd especially for authors, because
9922 a world without formalities harms the creator. The ability to spread
9923 <span class="quote">«<span class="quote">Walt Disney creativity</span>»</span> is destroyed when there is no simple way to
9924 know what's protected and what's not.
9925 </p><a class="indexterm" name="idp10052896"></a><p>
9926 The fight against formalities achieved its first real victory in
9927 Berlin in 1908. International copyright lawyers amended the Berne
9928 Convention in 1908, to require copyright terms of life plus fifty
9929 years, as well as the abolition of copyright formalities. The
9930 formalities were hated because the stories of inadvertent loss were
9931 increasingly common. It was as if a Charles Dickens character ran all
9932 copyright offices, and the failure to dot an <em class="citetitle">i</em> or cross a
9933 <em class="citetitle">t</em> resulted in the loss of widows' only income.
9934 </p><p>
9935 These complaints were real and sensible. And the strictness of the
9936 formalities, especially in the United States, was absurd. The law
9937 should always have ways of forgiving innocent mistakes. There is no
9938 reason copyright law couldn't, as well. Rather than abandoning
9939 formalities totally, the response in Berlin should have been to
9940 embrace a more equitable system of registration.
9941 </p><p>
9942 Even that would have been resisted, however, because registration
9943 in the nineteenth and twentieth centuries was still expensive. It was
9944 also a hassle. The abolishment of formalities promised not only to save
9945 the starving widows, but also to lighten an unnecessary regulatory
9946                 burden
9947 imposed upon creators.
9948 </p><p>
9949 In addition to the practical complaint of authors in 1908, there was
9950 a moral claim as well. There was no reason that creative property
9951
9952
9953 should be a second-class form of property. If a carpenter builds a
9954 table, his rights over the table don't depend upon filing a form with
9955 the government.  He has a property right over the table <span class="quote">«<span class="quote">naturally,</span>»</span>
9956 and he can assert that right against anyone who would steal the table,
9957 whether or not he has informed the government of his ownership of the
9958 table.
9959 </p><p>
9960 This argument is correct, but its implications are misleading. For the
9961 argument in favor of formalities does not depend upon creative
9962 property being second-class property. The argument in favor of
9963 formalities turns upon the special problems that creative property
9964 presents.  The law of formalities responds to the special physics of
9965 creative property, to assure that it can be efficiently and fairly
9966 spread.
9967 </p><p>
9968 No one thinks, for example, that land is second-class property just
9969 because you have to register a deed with a court if your sale of land
9970 is to be effective. And few would think a car is second-class property
9971 just because you must register the car with the state and tag it with
9972 a license.  In both of those cases, everyone sees that there is an
9973 important reason to secure registration&#8212;both because it makes
9974 the markets more efficient and because it better secures the rights of
9975 the owner. Without a registration system for land, landowners would
9976 perpetually have to guard their property. With registration, they can
9977 simply point the police to a deed. Without a registration system for
9978 cars, auto theft would be much easier. With a registration system, the
9979 thief has a high burden to sell a stolen car. A slight burden is
9980 placed on the property owner, but those burdens produce a much better
9981 system of protection for property generally.
9982 </p><p>
9983 It is similarly special physics that makes formalities important in
9984 copyright law. Unlike a carpenter's table, there's nothing in nature that
9985 makes it relatively obvious who might own a particular bit of creative
9986 property. A recording of Lyle Lovett's latest album can exist in a billion
9987 places without anything necessarily linking it back to a particular
9988 owner. And like a car, there's no way to buy and sell creative property
9989 with confidence unless there is some simple way to authenticate who is
9990 the author and what rights he has. Simple transactions are destroyed in
9991
9992
9993 a world without formalities. Complex, expensive,
9994 <span class="emphasis"><em>lawyer</em></span> transactions take their place.
9995 <a class="indexterm" name="idp10062416"></a>
9996 </p><p>
9997 This was the understanding of the problem with the Sonny Bono
9998 Act that we tried to demonstrate to the Court. This was the part it
9999 didn't <span class="quote">«<span class="quote">get.</span>»</span> Because we live in a system without formalities, there is no
10000 way easily to build upon or use culture from our past. If copyright
10001 terms were, as Justice Story said they would be, <span class="quote">«<span class="quote">short,</span>»</span> then this
10002 wouldn't matter much. For fourteen years, under the framers' system, a
10003 work would be presumptively controlled. After fourteen years, it would
10004 be presumptively uncontrolled.
10005 </p><p>
10006 But now that copyrights can be just about a century long, the
10007 inability to know what is protected and what is not protected becomes
10008 a huge and obvious burden on the creative process. If the only way a
10009 library can offer an Internet exhibit about the New Deal is to hire a
10010 lawyer to clear the rights to every image and sound, then the
10011 copyright system is burdening creativity in a way that has never been
10012 seen before <span class="emphasis"><em>because there are no formalities</em></span>.
10013 </p><p>
10014 The Eldred Act was designed to respond to exactly this problem. If
10015 it is worth $1 to you, then register your work and you can get the
10016 longer term. Others will know how to contact you and, therefore, how
10017 to get your permission if they want to use your work. And you will get
10018 the benefit of an extended copyright term.
10019 </p><p>
10020 If it isn't worth it to you to register to get the benefit of an extended
10021 term, then it shouldn't be worth it for the government to defend your
10022 monopoly over that work either. The work should pass into the public
10023 domain where anyone can copy it, or build archives with it, or create a
10024 movie based on it. It should become free if it is not worth $1 to you.
10025 </p><p>
10026 Some worry about the burden on authors. Won't the burden of
10027 registering the work mean that the $1 is really misleading? Isn't the
10028 hassle worth more than $1? Isn't that the real problem with
10029 registration?
10030 </p><p>
10031 It is. The hassle is terrible. The system that exists now is awful. I
10032 completely agree that the Copyright Office has done a terrible job (no
10033 doubt because they are terribly funded) in enabling simple and cheap
10034
10035
10036 registrations. Any real solution to the problem of formalities must
10037 address the real problem of <span class="emphasis"><em>governments</em></span> standing
10038 at the core of any system of formalities. In this book, I offer such a
10039 solution. That solution essentially remakes the Copyright Office. For
10040 now, assume it was Amazon that ran the registration system. Assume it
10041 was one-click registration.  The Eldred Act would propose a simple,
10042 one-click registration fifty years after a work was published. Based
10043 upon historical data, that system would move up to 98 percent of
10044 commercial work, commercial work that no longer had a commercial life,
10045 into the public domain within fifty years. What do you think?
10046 </p><a class="indexterm" name="idp10070464"></a><p>
10047 <span class="strong"><strong>When Steve Forbes</strong></span> endorsed the
10048 idea, some in Washington began to pay attention. Many people contacted
10049 me pointing to representatives who might be willing to introduce the
10050 Eldred Act. And I had a few who directly suggested that they might be
10051 willing to take the first step.
10052 </p><a class="indexterm" name="idp10072624"></a><p>
10053 One representative, Zoe Lofgren of California, went so far as to get
10054 the bill drafted. The draft solved any problem with international
10055 law. It imposed the simplest requirement upon copyright owners
10056 possible. In May 2003, it looked as if the bill would be
10057 introduced. On May 16, I posted on the Eldred Act blog, <span class="quote">«<span class="quote">we are
10058 close.</span>»</span> There was a general reaction in the blog community that
10059 something good might happen here.
10060 </p><p>
10061 But at this stage, the lobbyists began to intervene. Jack Valenti and
10062 the MPAA general counsel came to the congresswoman's office to give
10063 the view of the MPAA. Aided by his lawyer, as Valenti told me, Valenti
10064 informed the congresswoman that the MPAA would oppose the Eldred
10065 Act. The reasons are embarrassingly thin. More importantly, their
10066 thinness shows something clear about what this debate is really about.
10067 </p><p>
10068 The MPAA argued first that Congress had <span class="quote">«<span class="quote">firmly rejected the central
10069 concept in the proposed bill</span>»</span>&#8212;that copyrights be renewed. That
10070 was true, but irrelevant, as Congress's <span class="quote">«<span class="quote">firm rejection</span>»</span> had occurred
10071
10072 long before the Internet made subsequent uses much more likely.
10073 Second, they argued that the proposal would harm poor copyright
10074 owners&#8212;apparently those who could not afford the $1 fee. Third,
10075 they argued that Congress had determined that extending a copyright
10076 term would encourage restoration work. Maybe in the case of the small
10077 percentage of work covered by copyright law that is still commercially
10078 valuable, but again this was irrelevant, as the proposal would not cut
10079 off the extended term unless the $1 fee was not paid. Fourth, the MPAA
10080 argued that the bill would impose <span class="quote">«<span class="quote">enormous</span>»</span> costs, since a
10081 registration system is not free. True enough, but those costs are
10082 certainly less than the costs of clearing the rights for a copyright
10083 whose owner is not known. Fifth, they worried about the risks if the
10084 copyright to a story underlying a film were to pass into the public
10085 domain. But what risk is that? If it is in the public domain, then the
10086 film is a valid derivative use.
10087 </p><p>
10088 Finally, the MPAA argued that existing law enabled copyright owners to
10089 do this if they wanted. But the whole point is that there are
10090 thousands of copyright owners who don't even know they have a
10091 copyright to give. Whether they are free to give away their copyright
10092 or not&#8212;a controversial claim in any case&#8212;unless they know
10093 about a copyright, they're not likely to.
10094 </p><p>
10095 <span class="strong"><strong>At the beginning</strong></span> of this book, I
10096 told two stories about the law reacting to changes in technology. In
10097 the one, common sense prevailed.  In the other, common sense was
10098 delayed. The difference between the two stories was the power of the
10099 opposition&#8212;the power of the side that fought to defend the
10100 status quo. In both cases, a new technology threatened old
10101 interests. But in only one case did those interest's have the power to
10102 protect themselves against this new competitive threat.
10103 </p><p>
10104 I used these two cases as a way to frame the war that this book has
10105 been about. For here, too, a new technology is forcing the law to react.
10106 And here, too, we should ask, is the law following or resisting common
10107 sense? If common sense supports the law, what explains this common
10108 sense?
10109 </p><p>
10110
10111
10112 When the issue is piracy, it is right for the law to back the
10113 copyright owners. The commercial piracy that I described is wrong and
10114 harmful, and the law should work to eliminate it. When the issue is
10115 p2p sharing, it is easy to understand why the law backs the owners
10116 still: Much of this sharing is wrong, even if much is harmless. When
10117 the issue is copyright terms for the Mickey Mouses of the world, it is
10118 possible still to understand why the law favors Hollywood: Most people
10119 don't recognize the reasons for limiting copyright terms; it is thus
10120 still possible to see good faith within the resistance.
10121 </p><a class="indexterm" name="idp10083088"></a><p>
10122 But when the copyright owners oppose a proposal such as the Eldred
10123 Act, then, finally, there is an example that lays bare the naked
10124 selfinterest driving this war. This act would free an extraordinary
10125 range of content that is otherwise unused. It wouldn't interfere with
10126 any copyright owner's desire to exercise continued control over his
10127 content. It would simply liberate what Kevin Kelly calls the <span class="quote">«<span class="quote">Dark
10128 Content</span>»</span> that fills archives around the world. So when the warriors
10129 oppose a change like this, we should ask one simple question:
10130 </p><p>
10131 What does this industry really want?
10132 </p><p>
10133 With very little effort, the warriors could protect their content. So
10134 the effort to block something like the Eldred Act is not really about
10135 protecting <span class="emphasis"><em>their</em></span> content. The effort to block the
10136 Eldred Act is an effort to assure that nothing more passes into the
10137 public domain. It is another step to assure that the public domain
10138 will never compete, that there will be no use of content that is not
10139 commercially controlled, and that there will be no commercial use of
10140 content that doesn't require <span class="emphasis"><em>their</em></span> permission
10141 first.
10142 </p><p>
10143 The opposition to the Eldred Act reveals how extreme the other side
10144 is. The most powerful and sexy and well loved of lobbies really has as
10145 its aim not the protection of <span class="quote">«<span class="quote">property</span>»</span> but the rejection of a
10146 tradition.  Their aim is not simply to protect what is
10147 theirs. <span class="emphasis"><em>Their aim is to assure that all there is is what is
10148 theirs</em></span>.
10149 </p><p>
10150 It is not hard to understand why the warriors take this view. It is not
10151 hard to see why it would benefit them if the competition of the public
10152
10153
10154 domain tied to the Internet could somehow be quashed. Just as RCA
10155 feared the competition of FM, they fear the competition of a public
10156 domain connected to a public that now has the means to create with it
10157 and to share its own creation.
10158 </p><a class="indexterm" name="idp10090080"></a><a class="indexterm" name="idp10090864"></a><p>
10159 What is hard to understand is why the public takes this view. It is
10160 as if the law made airplanes trespassers. The MPAA stands with the
10161 Causbys and demands that their remote and useless property rights be
10162 respected, so that these remote and forgotten copyright holders might
10163 block the progress of others.
10164 </p><p>
10165 All this seems to follow easily from this untroubled acceptance of the
10166 <span class="quote">«<span class="quote">property</span>»</span> in intellectual property. Common sense supports it, and so
10167 long as it does, the assaults will rain down upon the technologies of
10168 the Internet. The consequence will be an increasing <span class="quote">«<span class="quote">permission
10169 society.</span>»</span>  The past can be cultivated only if you can identify the
10170 owner and gain permission to build upon his work. The future will be
10171 controlled by this dead (and often unfindable) hand of the past.
10172 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp10046768" class="footnote"><p><a href="#idp10046768" class="para"><sup class="para">[194] </sup></a>
10173
10174 <a class="indexterm" name="idp10047472"></a>
10175 Until the 1908 Berlin Act of the Berne Convention, national copyright
10176 legislation sometimes made protection depend upon compliance with
10177 formalities such as registration, deposit, and affixation of notice of
10178 the author's claim of copyright. However, starting with the 1908 act,
10179 every text of the Convention has provided that <span class="quote">«<span class="quote">the enjoyment and the
10180 exercise</span>»</span> of rights guaranteed by the Convention <span class="quote">«<span class="quote">shall not be subject
10181 to any formality.</span>»</span>  The prohibition against formalities is presently
10182 embodied in Article 5(2) of the Paris Text of the Berne
10183 Convention. Many countries continue to impose some form of deposit or
10184 registration requirement, albeit not as a condition of
10185 copyright. French law, for example, requires the deposit of copies of
10186 works in national repositories, principally the National Museum.
10187 Copies of books published in the United Kingdom must be deposited in
10188 the British Library. The German Copyright Act provides for a Registrar
10189 of Authors where the author's true name can be filed in the case of
10190 anonymous or pseudonymous works. Paul Goldstein, <em class="citetitle">International
10191 Intellectual Property Law, Cases and Materials</em> (New York: Foundation
10192 Press, 2001), 153&#8211;54.  </p></div></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-conclusion"></a>Chapter 15. CONCLUSION</h1></div></div></div><a class="indexterm" name="idxafricamedicationsforhivpatientsin"></a><a class="indexterm" name="idxaidsmedications"></a><a class="indexterm" name="idxantiretroviraldrugs"></a><a class="indexterm" name="idxdevelopingcountriesforeignpatentcostsin2"></a><a class="indexterm" name="idxdrugspharmaceutical"></a><a class="indexterm" name="idxhivaidstherapies"></a><p>
10193 <span class="strong"><strong>There are more</strong></span> than 35 million
10194 people with the AIDS virus worldwide. Twenty-five million of them live
10195 in sub-Saharan Africa.  Seventeen million have already died. Seventeen
10196 million Africans is proportional percentage-wise to seven million
10197 Americans. More importantly, it is seventeen million Africans.
10198 </p><p>
10199 There is no cure for AIDS, but there are drugs to slow its
10200 progression.  These antiretroviral therapies are still experimental,
10201 but they have already had a dramatic effect. In the United States,
10202 AIDS patients who regularly take a cocktail of these drugs increase
10203 their life expectancy by ten to twenty years. For some, the drugs make
10204 the disease almost invisible.
10205 </p><p>
10206 These drugs are expensive. When they were first introduced in the
10207 United States, they cost between $10,000 and $15,000 per person per
10208 year. Today, some cost $25,000 per year. At these prices, of course, no
10209 African nation can afford the drugs for the vast majority of its
10210                 population:
10211 $15,000 is thirty times the per capita gross national product of
10212 Zimbabwe. At these prices, the drugs are totally unavailable.<a href="#ftn.idp10108464" class="footnote" name="idp10108464"><sup class="footnote">[195]</sup></a>
10213 </p><a class="indexterm" name="idxpatentsonpharmaceuticals"></a><a class="indexterm" name="idxpharmaceuticalpatents"></a><p>
10214
10215 These prices are not high because the ingredients of the drugs are
10216 expensive. These prices are high because the drugs are protected by
10217 patents. The drug companies that produced these life-saving mixes
10218 enjoy at least a twenty-year monopoly for their inventions. They use
10219 that monopoly power to extract the most they can from the market. That
10220 power is in turn used to keep the prices high.
10221 </p><p>
10222 There are many who are skeptical of patents, especially drug
10223 patents. I am not. Indeed, of all the areas of research that might be
10224 supported by patents, drug research is, in my view, the clearest case
10225 where patents are needed. The patent gives the drug company some
10226 assurance that if it is successful in inventing a new drug to treat a
10227 disease, it will be able to earn back its investment and more. This is
10228 socially an extremely valuable incentive. I am the last person who
10229 would argue that the law should abolish it, at least without other
10230 changes.
10231 </p><p>
10232 But it is one thing to support patents, even drug patents. It is
10233 another thing to determine how best to deal with a crisis. And as
10234 African leaders began to recognize the devastation that AIDS was
10235 bringing, they started looking for ways to import HIV treatments at
10236 costs significantly below the market price.
10237 </p><a class="indexterm" name="idxinternationallaw2"></a><a class="indexterm" name="idxparallelimportation"></a><a class="indexterm" name="idxsouthafricarepublicofpharmaceuticalimportsby"></a><p>
10238 In 1997, South Africa tried one tack. It passed a law to allow the
10239 importation of patented medicines that had been produced or sold in
10240 another nation's market with the consent of the patent owner. For
10241 example, if the drug was sold in India, it could be imported into
10242 Africa from India. This is called <span class="quote">«<span class="quote">parallel importation,</span>»</span> and it is
10243 generally permitted under international trade law and is specifically
10244 permitted within the European Union.<a href="#ftn.idp10122976" class="footnote" name="idp10122976"><sup class="footnote">[196]</sup></a>
10245 </p><a class="indexterm" name="idp10126256"></a><p>
10246 However, the United States government opposed the bill. Indeed, more
10247 than opposed. As the International Intellectual Property Association
10248 characterized it, <span class="quote">«<span class="quote">The U.S. government pressured South Africa &#8230;
10249 not to permit compulsory licensing or parallel
10250 imports.</span>»</span><a href="#ftn.idp9731440" class="footnote" name="idp9731440"><sup class="footnote">[197]</sup></a>
10251 Through the Office of the United States Trade Representative, the
10252 government asked South Africa to change the law&#8212;and to add
10253 pressure to that request, in 1998, the USTR listed South Africa for
10254 possible trade sanctions.
10255
10256 That same year, more than forty pharmaceutical companies began
10257 proceedings in the South African courts to challenge the government's
10258 actions. The United States was then joined by other governments from
10259 the EU. Their claim, and the claim of the pharmaceutical companies,
10260 was that South Africa was violating its obligations under
10261 international law by discriminating against a particular kind of
10262 patent&#8212; pharmaceutical patents. The demand of these governments,
10263 with the United States in the lead, was that South Africa respect
10264 these patents as it respects any other patent, regardless of any
10265 effect on the treatment of AIDS within South Africa.<a href="#ftn.idp10130112" class="footnote" name="idp10130112"><sup class="footnote">[198]</sup></a>
10266 </p><a class="indexterm" name="idp10133232"></a><p>
10267 We should place the intervention by the United States in context.  No
10268 doubt patents are not the most important reason that Africans don't
10269 have access to drugs. Poverty and the total absence of an effective
10270 health care infrastructure matter more. But whether patents are the
10271 most important reason or not, the price of drugs has an effect on
10272 their demand, and patents affect price. And so, whether massive or
10273 marginal, there was an effect from our government's intervention to
10274 stop the flow of medications into Africa.
10275 </p><p>
10276 By stopping the flow of HIV treatment into Africa, the United
10277 States government was not saving drugs for United States citizens.
10278 This is not like wheat (if they eat it, we can't); instead, the flow that the
10279 United States intervened to stop was, in effect, a flow of knowledge:
10280 information about how to take chemicals that exist within Africa, and
10281 turn those chemicals into drugs that would save 15 to 30 million lives.
10282 </p><p>
10283 Nor was the intervention by the United States going to protect the
10284 profits of United States drug companies&#8212;at least, not substantially. It
10285 was not as if these countries were in the position to buy the drugs for
10286 the prices the drug companies were charging. Again, the Africans are
10287 wildly too poor to afford these drugs at the offered prices. Stopping the
10288 parallel import of these drugs would not substantially increase the sales
10289 by U.S. companies.
10290 </p><p>
10291 Instead, the argument in favor of restricting this flow of
10292 information, which was needed to save the lives of millions, was an
10293 argument
10294
10295 about the sanctity of property.<a href="#ftn.idp10137872" class="footnote" name="idp10137872"><sup class="footnote">[199]</sup></a>
10296 It was because <span class="quote">«<span class="quote">intellectual property</span>»</span> would be violated that these
10297 drugs should not flow into Africa. It was a principle about the
10298 importance of <span class="quote">«<span class="quote">intellectual property</span>»</span> that led these government actors
10299 to intervene against the South African response to AIDS.
10300 </p><a class="indexterm" name="idp10145184"></a><p>
10301 Now just step back for a moment. There will be a time thirty years
10302 from now when our children look back at us and ask, how could we have
10303 let this happen? How could we allow a policy to be pursued whose
10304 direct cost would be to speed the death of 15 to 30 million Africans,
10305 and whose only real benefit would be to uphold the <span class="quote">«<span class="quote">sanctity</span>»</span> of an
10306 idea?  What possible justification could there ever be for a policy
10307 that results in so many deaths? What exactly is the insanity that
10308 would allow so many to die for such an abstraction?
10309 </p><a class="indexterm" name="idxcorporationsinpharmaceuticalindustry"></a><p>
10310 Some blame the drug companies. I don't. They are corporations.
10311 Their managers are ordered by law to make money for the corporation.
10312 They push a certain patent policy not because of ideals, but because it is
10313 the policy that makes them the most money. And it only makes them the
10314 most money because of a certain corruption within our political system&#8212;
10315 a corruption the drug companies are certainly not responsible for.
10316 </p><p>
10317 The corruption is our own politicians' failure of integrity. For the
10318 drug companies would love&#8212;they say, and I believe them&#8212;to
10319 sell their drugs as cheaply as they can to countries in Africa and
10320 elsewhere.  There are issues they'd have to resolve to make sure the
10321 drugs didn't get back into the United States, but those are mere
10322 problems of technology.  They could be overcome.
10323 </p><a class="indexterm" name="idxintellectualpropertyrightsofdrugpatents"></a><p>
10324 A different problem, however, could not be overcome. This is the
10325 fear of the grandstanding politician who would call the presidents of
10326 the drug companies before a Senate or House hearing, and ask, <span class="quote">«<span class="quote">How
10327 is it you can sell this HIV drug in Africa for only $1 a pill, but the same
10328 drug would cost an American $1,500?</span>»</span> Because there is no <span class="quote">«<span class="quote">sound
10329 bite</span>»</span> answer to that question, its effect would be to induce regulation
10330 of prices in America. The drug companies thus avoid this spiral by
10331 avoiding the first step. They reinforce the idea that property should be
10332
10333 sacred. They adopt a rational strategy in an irrational context, with the
10334 unintended consequence that perhaps millions die. And that rational
10335 strategy thus becomes framed in terms of this ideal&#8212;the sanctity of an
10336 idea called <span class="quote">«<span class="quote">intellectual property.</span>»</span>
10337 </p><a class="indexterm" name="idp10156208"></a><a class="indexterm" name="idp10157456"></a><a class="indexterm" name="idp10158720"></a><a class="indexterm" name="idp10159968"></a><a class="indexterm" name="idp10161408"></a><a class="indexterm" name="idp10162656"></a><a class="indexterm" name="idp10163968"></a><p>
10338 So when the common sense of your child confronts you, what will
10339 you say? When the common sense of a generation finally revolts
10340 against what we have done, how will we justify what we have done?
10341 What is the argument?
10342 </p><p>
10343 A sensible patent policy could endorse and strongly support the patent
10344 system without having to reach everyone everywhere in exactly the same
10345 way. Just as a sensible copyright policy could endorse and strongly
10346 support a copyright system without having to regulate the spread of
10347 culture perfectly and forever, a sensible patent policy could endorse
10348 and strongly support a patent system without having to block the
10349 spread of drugs to a country not rich enough to afford market prices
10350 in any case. A sensible policy, in other words, could be a balanced
10351 policy. For most of our history, both copyright and patent policies
10352 were balanced in just this sense.
10353 </p><a class="indexterm" name="idp10167040"></a><a class="indexterm" name="idp10168320"></a><a class="indexterm" name="idp10169664"></a><p>
10354 But we as a culture have lost this sense of balance. We have lost the
10355 critical eye that helps us see the difference between truth and
10356 extremism.  A certain property fundamentalism, having no connection to
10357 our tradition, now reigns in this culture&#8212;bizarrely, and with
10358 consequences more grave to the spread of ideas and culture than almost
10359 any other single policy decision that we as a democracy will make.
10360 </p><a class="indexterm" name="idp10171184"></a><p>
10361 <span class="strong"><strong>A simple idea</strong></span> blinds us, and under
10362 the cover of darkness, much happens that most of us would reject if
10363 any of us looked. So uncritically do we accept the idea of property in
10364 ideas that we don't even notice how monstrous it is to deny ideas to a
10365 people who are dying without them. So uncritically do we accept the
10366 idea of property in culture that we don't even question when the
10367 control of that property removes our
10368
10369 ability, as a people, to develop our culture democratically. Blindness
10370 becomes our common sense. And the challenge for anyone who would
10371 reclaim the right to cultivate our culture is to find a way to make
10372 this common sense open its eyes.
10373 </p><p>
10374 So  far, common sense sleeps. There is no revolt. Common sense
10375 does not yet see what there could be to revolt about. The extremism
10376 that now dominates this debate fits with ideas that seem natural, and
10377 that fit is reinforced by the RCAs of our day. They wage a frantic war
10378 to fight <span class="quote">«<span class="quote">piracy,</span>»</span> and devastate a culture for creativity. They defend
10379 the idea of <span class="quote">«<span class="quote">creative property,</span>»</span> while transforming real creators into
10380 modern-day sharecroppers. They are insulted by the idea that rights
10381 should be balanced, even though each of the major players in this
10382 content war was itself a beneficiary of a more balanced ideal. The
10383 hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even
10384 noticed. Powerful lobbies, complex issues, and MTV attention spans
10385 produce the <span class="quote">«<span class="quote">perfect storm</span>»</span> for free culture.
10386 </p><a class="indexterm" name="idp10177680"></a><a class="indexterm" name="idp10178496"></a><a class="indexterm" name="idxintellectualpropertyrightsinternationalorganizationonissuesof"></a><a class="indexterm" name="idp10181264"></a><a class="indexterm" name="idp10182368"></a><a class="indexterm" name="idp10183200"></a><a class="indexterm" name="idp10184032"></a><a class="indexterm" name="idp10184864"></a><a class="indexterm" name="idp10185968"></a><a class="indexterm" name="idp10186800"></a><a class="indexterm" name="idxworldintellectualpropertyorganizationwipo"></a><a class="indexterm" name="idp10189280"></a><a class="indexterm" name="idp10190096"></a><a class="indexterm" name="idp10190928"></a><a class="indexterm" name="idxbiomedicalresearch"></a><p>
10387 <span class="strong"><strong>In August 2003</strong></span>, a fight broke out
10388 in the United States about a decision by the World Intellectual
10389 Property Organization to cancel a meeting.<a href="#ftn.idp10194400" class="footnote" name="idp10194400"><sup class="footnote">[200]</sup></a>
10390 At the request of a wide range of interests, WIPO had decided to hold
10391 a meeting to discuss <span class="quote">«<span class="quote">open and collaborative projects to create public
10392 goods.</span>»</span> These are projects that have been successful in producing
10393 public goods without relying exclusively upon a proprietary use of
10394 intellectual property. Examples include the Internet and the World
10395 Wide Web, both of which were developed on the basis of protocols in
10396 the public domain. It included an emerging trend to support open
10397 academic journals, including the Public Library of Science project
10398 that I describe in chapter
10399 <a class="xref" href="#c-afterword" title="Chapter 16. AFTERWORD">16</a>.  It
10400 included a project to develop single nucleotide polymorphisms (SNPs),
10401 which are thought to have great significance in biomedical
10402 research. (That nonprofit project comprised a consortium of the
10403 Wellcome Trust and pharmaceutical and technological companies,
10404 including Amersham Biosciences, AstraZeneca,
10405
10406 Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche,
10407 Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It
10408 included the Global Positioning System, which Ronald Reagan set free
10409 in the early 1980s. And it included <span class="quote">«<span class="quote">open source and free software.</span>»</span>
10410 </p><a class="indexterm" name="idp10203648"></a><p>
10411 The aim of the meeting was to consider this wide range of projects
10412 from one common perspective: that none of these projects relied upon
10413 intellectual property extremism. Instead, in all of them, intellectual
10414 property was balanced by agreements to keep access open or to impose
10415 limitations on the way in which proprietary claims might be used.
10416 </p><a class="indexterm" name="idxlessiglawrenceininternationaldebateonintellectualproperty"></a><p>
10417 From the perspective of this book, then, the conference was ideal.<a href="#ftn.idp10207984" class="footnote" name="idp10207984"><sup class="footnote">[201]</sup></a>
10418 The projects within its scope included both commercial and
10419 noncommercial work. They primarily involved science, but from many
10420 perspectives.  And WIPO was an ideal venue for this discussion, since
10421 WIPO is the preeminent international body dealing with intellectual
10422 property issues.
10423 </p><a class="indexterm" name="idxworldsummitontheinformationsocietywsis"></a><p>
10424 Indeed, I was once publicly scolded for not recognizing this fact
10425 about WIPO. In February 2003, I delivered a keynote address to a
10426 preparatory conference for the World Summit on the Information Society
10427 (WSIS). At a press conference before the address, I was asked what I
10428 would say. I responded that I would be talking a little about the
10429 importance of balance in intellectual property for the development of
10430 an information society. The moderator for the event then promptly
10431 interrupted to inform me and the assembled reporters that no question
10432 about intellectual property would be discussed by WSIS, since those
10433 questions were the exclusive domain of WIPO. In the talk that I had
10434 prepared, I had actually made the issue of intellectual property
10435 relatively minor. But after this astonishing statement, I made
10436 intellectual property the sole focus of my talk. There was no way to
10437 talk about an <span class="quote">«<span class="quote">Information Society</span>»</span> unless one also talked about the
10438 range of information and culture that would be free. My talk did not
10439 make my immoderate moderator very happy. And she was no doubt correct
10440 that the scope of intellectual property protections was ordinarily the
10441 stuff of
10442
10443 WIPO. But in my view, there couldn't be too much of a conversation
10444 about how much intellectual property is needed, since in my view, the
10445 very idea of balance in intellectual property had been lost.
10446 </p><p>
10447 So whether or not WSIS can discuss balance in intellectual property, I
10448 had thought it was taken for granted that WIPO could and should. And
10449 thus the meeting about <span class="quote">«<span class="quote">open and collaborative projects to create
10450 public goods</span>»</span> seemed perfectly appropriate within the WIPO agenda.
10451 </p><a class="indexterm" name="idp10214528"></a><a class="indexterm" name="idp10215984"></a><a class="indexterm" name="idp10217360"></a><a class="indexterm" name="idxfreesoftwareopensourcesoftwarefsoss"></a><a class="indexterm" name="idp10220240"></a><a class="indexterm" name="idxmicrosoftonfreesoftware"></a><p>
10452 But there is one project within that list that is highly
10453 controversial, at least among lobbyists. That project is <span class="quote">«<span class="quote">open source
10454 and free software.</span>»</span>  Microsoft in particular is wary of discussion of
10455 the subject. From its perspective, a conference to discuss open source
10456 and free software would be like a conference to discuss Apple's
10457 operating system. Both open source and free software compete with
10458 Microsoft's software. And internationally, many governments have begun
10459 to explore requirements that they use open source or free software,
10460 rather than <span class="quote">«<span class="quote">proprietary software,</span>»</span> for their own internal uses.
10461 </p><a class="indexterm" name="idp10224720"></a><a class="indexterm" name="idp10225824"></a><a class="indexterm" name="idp10226656"></a><a class="indexterm" name="idp10227472"></a><p>
10462 I don't mean to enter that debate here. It is important only to
10463 make clear that the distinction is not between commercial and
10464 noncommercial software. There are many important companies that depend
10465 fundamentally upon open source and free software, IBM being the most
10466 prominent. IBM is increasingly shifting its focus to the GNU/Linux
10467 operating system, the most famous bit of <span class="quote">«<span class="quote">free software</span>»</span>&#8212;and IBM
10468 is emphatically a commercial entity. Thus, to support <span class="quote">«<span class="quote">open source and
10469 free software</span>»</span> is not to oppose commercial entities. It is, instead,
10470 to support a mode of software development that is different from
10471 Microsoft's.<a href="#ftn.idp10229920" class="footnote" name="idp10229920"><sup class="footnote">[202]</sup></a>
10472 </p><a class="indexterm" name="idp10235648"></a><a class="indexterm" name="idp10237136"></a><a class="indexterm" name="idp10237968"></a><p>
10473 More important for our purposes, to support <span class="quote">«<span class="quote">open source and free
10474 software</span>»</span> is not to oppose copyright. <span class="quote">«<span class="quote">Open source and free software</span>»</span>
10475 is not software in the public domain. Instead, like Microsoft's
10476 software, the copyright owners of free and open source software insist
10477 quite strongly that the terms of their software license be respected
10478 by
10479
10480 adopters of free and open source software. The terms of that license
10481 are no doubt different from the terms of a proprietary software
10482 license.  Free software licensed under the General Public License
10483 (GPL), for example, requires that the source code for the software be
10484 made available by anyone who modifies and redistributes the
10485 software. But that requirement is effective only if copyright governs
10486 software. If copyright did not govern software, then free software
10487 could not impose the same kind of requirements on its adopters. It
10488 thus depends upon copyright law just as Microsoft does.
10489 </p><a class="indexterm" name="idxintellectualpropertyrightsinternationalorganizationonissuesof2"></a><a class="indexterm" name="idxworldintellectualpropertyorganizationwipo2"></a><a class="indexterm" name="idxkrimjonathan"></a><a class="indexterm" name="idp10246432"></a><p>
10490 It is therefore understandable that as a proprietary software
10491 developer, Microsoft would oppose this WIPO meeting, and
10492 understandable that it would use its lobbyists to get the United
10493 States government to oppose it, as well. And indeed, that is just what
10494 was reported to have happened. According to Jonathan Krim of the
10495 <em class="citetitle">Washington Post</em>, Microsoft's lobbyists succeeded in getting the United
10496 States government to veto the meeting.<a href="#ftn.idp10248656" class="footnote" name="idp10248656"><sup class="footnote">[203]</sup></a>
10497 And without U.S. backing, the meeting was canceled.
10498 </p><p>
10499 I don't blame Microsoft for doing what it can to advance its own
10500 interests, consistent with the law. And lobbying governments is
10501 plainly consistent with the law. There was nothing surprising about
10502 its lobbying here, and nothing terribly surprising about the most
10503 powerful software producer in the United States having succeeded in
10504 its lobbying efforts.
10505 </p><a class="indexterm" name="idp10251632"></a><a class="indexterm" name="idp10253024"></a><p>
10506 What was surprising was the United States government's reason for
10507 opposing the meeting. Again, as reported by Krim, Lois Boland, acting
10508 director of international relations for the U.S. Patent and Trademark
10509 Office, explained that <span class="quote">«<span class="quote">open-source software runs counter to the
10510 mission of WIPO, which is to promote intellectual-property rights.</span>»</span>
10511 She is quoted as saying, <span class="quote">«<span class="quote">To hold a meeting which has as its purpose
10512 to disclaim or waive such rights seems to us to be contrary to the
10513 goals of WIPO.</span>»</span>
10514 </p><a class="indexterm" name="idp10255504"></a><p>
10515 These statements are astonishing on a number of levels.
10516 </p><a class="indexterm" name="idp10257200"></a><p>
10517 First, they are just flat wrong. As I described, most open source and
10518 free software relies fundamentally upon the intellectual property
10519 right called <span class="quote">«<span class="quote">copyright</span>»</span>.  Without it, restrictions imposed by those
10520 licenses wouldn't work. Thus, to say it <span class="quote">«<span class="quote">runs counter</span>»</span> to the mission
10521 of promoting intellectual property rights reveals an extraordinary gap
10522 in understanding&#8212;the sort of mistake that is excusable in a
10523 first-year law student, but an embarrassment from a high government
10524 official dealing with intellectual property issues.
10525 </p><a class="indexterm" name="idp10260816"></a><a class="indexterm" name="idp10261520"></a><a class="indexterm" name="idp10262624"></a><a class="indexterm" name="idp10263440"></a><p>
10526 Second, who ever said that WIPO's exclusive aim was to <span class="quote">«<span class="quote">promote</span>»</span>
10527 intellectual property maximally? As I had been scolded at the
10528 preparatory conference of WSIS, WIPO is to consider not only how best
10529 to protect intellectual property, but also what the best balance of
10530 intellectual property is. As every economist and lawyer knows, the
10531 hard question in intellectual property law is to find that
10532 balance. But that there should be limits is, I had thought,
10533 uncontested. One wants to ask Ms. Boland, are generic drugs (drugs
10534 based on drugs whose patent has expired) contrary to the WIPO mission?
10535 Does the public domain weaken intellectual property? Would it have
10536 been better if the protocols of the Internet had been patented?
10537 </p><a class="indexterm" name="idp10266096"></a><p>
10538 Third, even if one believed that the purpose of WIPO was to maximize
10539 intellectual property rights, in our tradition, intellectual property
10540 rights are held by individuals and corporations. They get to decide
10541 what to do with those rights because, again, they are
10542 <span class="emphasis"><em>their</em></span> rights. If they want to <span class="quote">«<span class="quote">waive</span>»</span> or
10543 <span class="quote">«<span class="quote">disclaim</span>»</span> their rights, that is, within our tradition, totally
10544 appropriate. When Bill Gates gives away more than $20 billion to do
10545 good in the world, that is not inconsistent with the objectives of the
10546 property system. That is, on the contrary, just what a property system
10547 is supposed to be about: giving individuals the right to decide what
10548 to do with <span class="emphasis"><em>their</em></span> property.
10549 </p><a class="indexterm" name="idxboland"></a><p>
10550 When Ms. Boland says that there is something wrong with a meeting
10551 <span class="quote">«<span class="quote">which has as its purpose to disclaim or waive such rights,</span>»</span> she's
10552 saying that WIPO has an interest in interfering with the choices of
10553
10554 the individuals who own intellectual property rights. That somehow,
10555 WIPO's objective should be to stop an individual from <span class="quote">«<span class="quote">waiving</span>»</span> or
10556 <span class="quote">«<span class="quote">disclaiming</span>»</span> an intellectual property right. That the interest of
10557 WIPO is not just that intellectual property rights be maximized, but
10558 that they also should be exercised in the most extreme and restrictive
10559 way possible.
10560 </p><a class="indexterm" name="idxfeudalsystem"></a><a class="indexterm" name="idxpropertyrightsfeudalsystemof"></a><p>
10561 There is a history of just such a property system that is well known
10562 in the Anglo-American tradition. It is called <span class="quote">«<span class="quote">feudalism.</span>»</span> Under
10563 feudalism, not only was property held by a relatively small number of
10564 individuals and entities. And not only were the rights that ran with
10565 that property powerful and extensive. But the feudal system had a
10566 strong interest in assuring that property holders within that system
10567 not weaken feudalism by liberating people or property within their
10568 control to the free market. Feudalism depended upon maximum control
10569 and concentration. It fought any freedom that might interfere with
10570 that control.
10571 </p><a class="indexterm" name="idp10278560"></a><a class="indexterm" name="idp10279376"></a><p>
10572 As Peter Drahos and John Braithwaite relate, this is precisely the
10573 choice we are now making about intellectual property.<a href="#ftn.idp10280592" class="footnote" name="idp10280592"><sup class="footnote">[204]</sup></a>
10574 We will have an information society. That much is certain. Our only
10575 choice now is whether that information society will be
10576 <span class="emphasis"><em>free</em></span> or <span class="emphasis"><em>feudal</em></span>. The trend is
10577 toward the feudal.
10578 </p><a class="indexterm" name="idp10283872"></a><a class="indexterm" name="idp10285120"></a><p>
10579 When this battle broke, I blogged it. A spirited debate within the
10580 comment section ensued. Ms. Boland had a number of supporters who
10581 tried to show why her comments made sense. But there was one comment
10582 that was particularly depressing for me. An anonymous poster wrote,
10583 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idp10287376"></a><a class="indexterm" name="idp10288816"></a><p>
10584 George, you misunderstand Lessig: He's only talking about the world as
10585 it should be (<span class="quote">«<span class="quote">the goal of WIPO, and the goal of any government,
10586 should be to promote the right balance of intellectual property rights,
10587 not simply to promote intellectual property rights</span>»</span>), not as it is. If
10588 we were talking about the world as it is, then of course Boland didn't
10589 say anything wrong. But in the world
10590
10591 as Lessig would have it, then of course she did. Always pay attention
10592 to the distinction between Lessig's world and ours.
10593 </p></blockquote></div><p>
10594 I missed the irony the first time I read it. I read it quickly and
10595 thought the poster was supporting the idea that seeking balance was
10596 what our government should be doing. (Of course, my criticism of Ms.
10597 Boland was not about whether she was seeking balance or not; my
10598 criticism was that her comments betrayed a first-year law student's
10599 mistake. I have no illusion about the extremism of our government,
10600 whether Republican or Democrat. My only illusion apparently is about
10601 whether our government should speak the truth or not.)
10602 </p><a class="indexterm" name="idp10292976"></a><p>
10603 Obviously, however, the poster was not supporting that idea.  Instead,
10604 the poster was ridiculing the very idea that in the real world, the
10605 <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
10606 intellectual property. That was obviously silly to him. And it
10607 obviously betrayed, he believed, my own silly utopianism. <span class="quote">«<span class="quote">Typical for
10608 an academic,</span>»</span> the poster might well have continued.
10609 </p><p>
10610 I understand criticism of academic utopianism. I think utopianism is
10611 silly, too, and I'd be the first to poke fun at the absurdly
10612 unrealistic ideals of academics throughout history (and not just in
10613 our own country's history).
10614 </p><p>
10615 But when it has become silly to suppose that the role of our
10616 government should be to <span class="quote">«<span class="quote">seek balance,</span>»</span> then count me with the silly,
10617 for that means that this has become quite serious indeed. If it should
10618 be obvious to everyone that the government does not seek balance, that
10619 the government is simply the tool of the most powerful lobbyists, that
10620 the idea of holding the government to a different standard is absurd,
10621 that the idea of demanding of the government that it speak truth and
10622 not lies is just naïve, then who have we, the most powerful
10623 democracy in the world, become?
10624 </p><p>
10625 It might be crazy to expect a high government official to speak
10626 the truth. It might be crazy to believe that government policy will be
10627 something more than the handmaiden of the most powerful interests.
10628
10629 It might be crazy to argue that we should preserve a tradition that has
10630 been part of our tradition for most of our history&#8212;free culture.
10631 </p><p>
10632 If this is crazy, then let there be more crazies. Soon.
10633 </p><a class="indexterm" name="idp10300128"></a><a class="indexterm" name="idp10300800"></a><a class="indexterm" name="idp10301504"></a><p>
10634 <span class="strong"><strong>There are moments</strong></span> of hope in this
10635 struggle. And moments that surprise. When the FCC was considering
10636 relaxing ownership rules, which would thereby further increase the
10637 concentration in media ownership, an extraordinary bipartisan
10638 coalition formed to fight this change. For perhaps the first time in
10639 history, interests as diverse as the NRA, the ACLU, Moveon.org,
10640 William Safire, Ted Turner, and CodePink Women for Peace organized to
10641 oppose this change in FCC policy. An astonishing 700,000 letters were
10642 sent to the FCC, demanding more hearings and a different result.
10643 </p><p>
10644 This activism did not stop the FCC, but soon after, a broad coalition
10645 in the Senate voted to reverse the FCC decision. The hostile hearings
10646 leading up to that vote revealed just how powerful this movement had
10647 become. There was no substantial support for the FCC's decision, and
10648 there was broad and sustained support for fighting further
10649 concentration in the media.
10650 </p><p>
10651 But even this movement misses an important piece of the puzzle.
10652 Largeness as such is not bad. Freedom is not threatened just because
10653 some become very rich, or because there are only a handful of big
10654 players.  The poor quality of Big Macs or Quarter Pounders does not
10655 mean that you can't get a good hamburger from somewhere else.
10656 </p><p>
10657 The danger in media concentration comes not from the concentration,
10658 but instead from the feudalism that this concentration, tied to the
10659 change in copyright, produces. It is not just that there are a few
10660 powerful companies that control an ever expanding slice of the
10661 media. It is that this concentration can call upon an equally bloated
10662 range of rights&#8212;property rights of a historically extreme
10663 form&#8212;that makes their bigness bad.
10664 </p><p>
10665 It is therefore significant that so many would rally to demand
10666 competition and increased diversity. Still, if the rally is understood
10667 as being about bigness alone, it is not terribly surprising. We
10668 Americans have a long history of fighting <span class="quote">«<span class="quote">big,</span>»</span> wisely or not. That
10669 we could be motivated to fight <span class="quote">«<span class="quote">big</span>»</span> again is not something new.
10670 </p><p>
10671 It would be something new, and something very important, if an equal
10672 number could be rallied to fight the increasing extremism built within
10673 the idea of <span class="quote">«<span class="quote">intellectual property.</span>»</span> Not because balance is alien to
10674 our tradition; indeed, as I've argued, balance is our tradition. But
10675 because the muscle to think critically about the scope of anything
10676 called <span class="quote">«<span class="quote">property</span>»</span> is not well exercised within this tradition anymore.
10677 </p><p>
10678 If we were Achilles, this would be our heel. This would be the place
10679 of our tragedy.
10680 </p><a class="indexterm" name="idp10310512"></a><p>
10681 <span class="strong"><strong>As I write</strong></span> these final words, the
10682 news is filled with stories about the RIAA lawsuits against almost
10683 three hundred individuals.<a href="#ftn.idp10312416" class="footnote" name="idp10312416"><sup class="footnote">[205]</sup></a>
10684 Eminem has just been sued for <span class="quote">«<span class="quote">sampling</span>»</span> someone else's
10685 music.<a href="#ftn.idp10319680" class="footnote" name="idp10319680"><sup class="footnote">[206]</sup></a>
10686 The story about Bob Dylan <span class="quote">«<span class="quote">stealing</span>»</span> from a Japanese author has just
10687 finished making the rounds.<a href="#ftn.idp10322304" class="footnote" name="idp10322304"><sup class="footnote">[207]</sup></a>
10688 An insider from Hollywood&#8212;who insists he must remain
10689 anonymous&#8212;reports <span class="quote">«<span class="quote">an amazing conversation with these studio
10690 guys. They've got extraordinary [old] content that they'd love to use
10691 but can't because they can't begin to clear the rights. They've got
10692 scores of kids who could do amazing things with the content, but it
10693 would take scores of lawyers to clean it first.</span>»</span> Congressmen are
10694 talking about deputizing computer viruses to bring down computers
10695 thought to violate the law. Universities are threatening expulsion for
10696 kids who use a computer to share content.
10697 </p><a class="indexterm" name="idp10325920"></a><a class="indexterm" name="idp10326704"></a><a class="indexterm" name="idp10327520"></a><a class="indexterm" name="idp10328304"></a><a class="indexterm" name="idp10329120"></a><a class="indexterm" name="idp10329936"></a><a class="indexterm" name="idp10330752"></a><p>
10698 Yet on the other side of the Atlantic, the BBC has just announced
10699 that it will build a <span class="quote">«<span class="quote">Creative Archive,</span>»</span> from which British citizens can
10700 download BBC content, and rip, mix, and burn it.<a href="#ftn.idp10332656" class="footnote" name="idp10332656"><sup class="footnote">[208]</sup></a>
10701 And in Brazil, the culture minister, Gilberto Gil, himself a folk hero
10702 of Brazilian music, has joined with Creative Commons to release
10703 content and free licenses in that Latin American
10704 country.<a href="#ftn.idp10334912" class="footnote" name="idp10334912"><sup class="footnote">[209]</sup></a>
10705
10706 I've told a dark story. The truth is more mixed. A technology has
10707 given us a new freedom. Slowly, some begin to understand that this
10708 freedom need not mean anarchy. We can carry a free culture into the
10709 twenty-first century, without artists losing and without the potential of
10710 digital technology being destroyed. It will take some thought, and
10711 more importantly, it will take some will to transform the RCAs of our
10712 day into the Causbys.
10713 </p><p>
10714 Common sense must revolt. It must act to free culture. Soon, if this
10715 potential is ever to be realized.
10716
10717
10718
10719 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp10108464" class="footnote"><p><a href="#idp10108464" class="para"><sup class="para">[195] </sup></a>
10720  Commission on Intellectual Property Rights, <span class="quote">«<span class="quote">Final Report: Integrating
10721 Intellectual Property Rights and Development Policy</span>»</span> (London, 2002),
10722 available at
10723 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #55</a>. According to a World Health Organization press
10724                 release
10725 issued 9 July 2002, only 230,000 of the 6 million who need drugs in
10726 the developing world receive them&#8212;and half of them are in Brazil.
10727 </p></div><div id="ftn.idp10122976" class="footnote"><p><a href="#idp10122976" class="para"><sup class="para">[196] </sup></a>
10728
10729 See Peter Drahos with John Braithwaite, <em class="citetitle">Information Feudalism: Who
10730 Owns the Knowledge Economy?</em> (New York: The New Press, 2003), 37.
10731 <a class="indexterm" name="idp10124400"></a>
10732 <a class="indexterm" name="idp10125184"></a>
10733 </p></div><div id="ftn.idp9731440" class="footnote"><p><a href="#idp9731440" class="para"><sup class="para">[197] </sup></a>
10734
10735 International Intellectual Property Institute (IIPI), <em class="citetitle">Patent
10736 Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
10737 Africa, a Report Prepared for the World Intellectual Property
10738 Organization</em> (Washington, D.C., 2000), 14, available at
10739 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #56</a>. For a
10740 firsthand account of the struggle over South Africa, see Hearing
10741 Before the Subcommittee on Criminal Justice, Drug Policy, and Human
10742 Resources, House Committee on Government Reform, H. Rep., 1st sess.,
10743 Ser. No. 106-126 (22 July 1999), 150&#8211;57 (statement of James
10744 Love).
10745 </p></div><div id="ftn.idp10130112" class="footnote"><p><a href="#idp10130112" class="para"><sup class="para">[198] </sup></a>
10746
10747 International Intellectual Property Institute (IIPI), <em class="citetitle">Patent
10748 Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
10749 Africa, a Report Prepared for the World Intellectual Property
10750 Organization</em> (Washington, D.C., 2000), 15.  </p></div><div id="ftn.idp10137872" class="footnote"><p><a href="#idp10137872" class="para"><sup class="para">[199] </sup></a>
10751
10752 See Sabin Russell, <span class="quote">«<span class="quote">New Crusade to Lower AIDS Drug Costs: Africa's
10753 Needs at Odds with Firms' Profit Motive,</span>»</span> <em class="citetitle">San Francisco Chronicle</em>, 24
10754 May 1999, A1, available at
10755 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #57</a>
10756 (<span class="quote">«<span class="quote">compulsory licenses and gray markets pose a threat to the entire
10757 system of intellectual property protection</span>»</span>); Robert Weissman, <span class="quote">«<span class="quote">AIDS
10758 and Developing Countries: Democratizing Access to Essential
10759 Medicines,</span>»</span> <em class="citetitle">Foreign Policy in Focus</em> 4:23 (August 1999), available at
10760 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #58</a>
10761 (describing U.S. policy); John A. Harrelson, <span class="quote">«<span class="quote">TRIPS, Pharmaceutical
10762 Patents, and the HIV/AIDS Crisis: Finding the Proper Balance Between
10763 Intellectual Property Rights and Compassion, a Synopsis,</span>»</span> <em class="citetitle">Widener Law
10764 Symposium Journal</em> (Spring 2001): 175.
10765
10766 </p></div><div id="ftn.idp10194400" class="footnote"><p><a href="#idp10194400" class="para"><sup class="para">[200] </sup></a>
10767  Jonathan Krim, <span class="quote">«<span class="quote">The Quiet War over Open-Source,</span>»</span> <em class="citetitle">Washington Post</em>,
10768 August 2003, E1, available at
10769 <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
10770 Shift on `Open Source' Meeting Spurs Stir,</span>»</span> <em class="citetitle">National Journal's Technology
10771 Daily</em>, 19 August 2003, available at
10772 <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
10773 Opposes `Open Source' Talks at WIPO,</span>»</span> <em class="citetitle">National Journal's Technology
10774 Daily</em>, 19 August 2003, available at
10775 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #61</a>.
10776 </p></div><div id="ftn.idp10207984" class="footnote"><p><a href="#idp10207984" class="para"><sup class="para">[201] </sup></a>
10777  I should disclose that I was one of the people who asked WIPO for the
10778 meeting.
10779 </p></div><div id="ftn.idp10229920" class="footnote"><p><a href="#idp10229920" class="para"><sup class="para">[202] </sup></a>
10780
10781 Microsoft's position about free and open source software is more
10782 sophisticated.  As it has repeatedly asserted, it has no problem with
10783 <span class="quote">«<span class="quote">open source</span>»</span> software or software in the public domain. Microsoft's
10784 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>
10785 license, meaning a license that requires the licensee to adopt the
10786 same terms on any derivative work. See Bradford L. Smith, <span class="quote">«<span class="quote">The Future
10787 of Software: Enabling the Marketplace to Decide,</span>»</span> <em class="citetitle">Government Policy
10788 Toward Open Source Software</em> (Washington, D.C.: AEI-Brookings Joint
10789 Center for Regulatory Studies, American Enterprise Institute for
10790 Public Policy Research, 2002), 69, available at
10791 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #62</a>. See also
10792 Craig Mundie, Microsoft senior vice president, <em class="citetitle">The Commercial Software
10793 Model</em>, discussion at New York University Stern School of Business (3
10794 May 2001), available at
10795 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #63</a>.
10796 </p></div><div id="ftn.idp10248656" class="footnote"><p><a href="#idp10248656" class="para"><sup class="para">[203] </sup></a>
10797
10798 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>.
10799 </p></div><div id="ftn.idp10280592" class="footnote"><p><a href="#idp10280592" class="para"><sup class="para">[204] </sup></a>
10800
10801 See Drahos with Braithwaite, <em class="citetitle">Information Feudalism</em>, 210&#8211;20.
10802 <a class="indexterm" name="idp10130240"></a>
10803 </p></div><div id="ftn.idp10312416" class="footnote"><p><a href="#idp10312416" class="para"><sup class="para">[205] </sup></a>
10804
10805 John Borland, <span class="quote">«<span class="quote">RIAA Sues 261 File Swappers,</span>»</span> CNET News.com, September
10806 2003, available at
10807 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #65</a>; Paul
10808 R. La Monica, <span class="quote">«<span class="quote">Music Industry Sues Swappers,</span>»</span> CNN/Money, 8 September
10809 2003, available at
10810 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #66</a>; Soni
10811 Sangha and Phyllis Furman with Robert Gearty, <span class="quote">«<span class="quote">Sued for a Song,
10812 N.Y.C. 12-Yr-Old Among 261 Cited as Sharers,</span>»</span> <em class="citetitle">New York Daily News</em>, 9
10813 September 2003, 3; Frank Ahrens, <span class="quote">«<span class="quote">RIAA's Lawsuits Meet Surprised
10814 Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among
10815 Defendants,</span>»</span> <em class="citetitle">Washington Post</em>, 10 September 2003, E1; Katie Dean,
10816 <span class="quote">«<span class="quote">Schoolgirl Settles with RIAA,</span>»</span> <em class="citetitle">Wired News</em>, 10 September 2003,
10817 available at
10818 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #67</a>.
10819 </p></div><div id="ftn.idp10319680" class="footnote"><p><a href="#idp10319680" class="para"><sup class="para">[206] </sup></a>
10820
10821 Jon Wiederhorn, <span class="quote">«<span class="quote">Eminem Gets Sued &#8230; by a Little Old Lady,</span>»</span>
10822 mtv.com, 17 September 2003, available at
10823 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #68</a>.
10824 </p></div><div id="ftn.idp10322304" class="footnote"><p><a href="#idp10322304" class="para"><sup class="para">[207] </sup></a>
10825
10826 Kenji Hall, Associated Press, <span class="quote">«<span class="quote">Japanese Book May Be Inspiration for
10827 Dylan Songs,</span>»</span> Kansascity.com, 9 July 2003, available at
10828 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #69</a>.
10829
10830 </p></div><div id="ftn.idp10332656" class="footnote"><p><a href="#idp10332656" class="para"><sup class="para">[208] </sup></a>
10831  <span class="quote">«<span class="quote">BBC Plans to Open Up Its Archive to the Public,</span>»</span> BBC press release,
10832 24 August 2003, available at
10833 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #70</a>.
10834 </p></div><div id="ftn.idp10334912" class="footnote"><p><a href="#idp10334912" class="para"><sup class="para">[209] </sup></a>
10835
10836 <span class="quote">«<span class="quote">Creative Commons and Brazil,</span>»</span> Creative Commons Weblog, 6 August 2003,
10837 available at
10838 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #71</a>.
10839 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-afterword"></a>Chapter 16. AFTERWORD</h1></div></div></div><p>
10840
10841
10842 <span class="strong"><strong>At least some</strong></span> who have read this
10843 far will agree with me that something must be done to change where we
10844 are heading. The balance of this book maps what might be done.
10845 </p><p>
10846 I divide this map into two parts: that which anyone can do now,
10847 and that which requires the help of lawmakers. If there is one lesson
10848 that we can draw from the history of remaking common sense, it is that
10849 it requires remaking how many people think about the very same issue.
10850 </p><p>
10851 That means this movement must begin in the streets. It must recruit a
10852 significant number of parents, teachers, librarians, creators,
10853 authors, musicians, filmmakers, scientists&#8212;all to tell this
10854 story in their own words, and to tell their neighbors why this battle
10855 is so important.
10856 </p><p>
10857 Once this movement has its effect in the streets, it has some hope of
10858 having an effect in Washington. We are still a democracy. What people
10859 think matters. Not as much as it should, at least when an RCA stands
10860 opposed, but still, it matters. And thus, in the second part below, I
10861 sketch changes that Congress could make to better secure a free culture.
10862 </p><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="usnow"></a>16.1. US, NOW</h2></div></div></div><p>
10863 <span class="strong"><strong>Common sense</strong></span> is with the copyright
10864 warriors because the debate so far has been framed at the
10865 extremes&#8212;as a grand either/or: either property or anarchy,
10866 either total control or artists won't be paid. If that really is the
10867 choice, then the warriors should win.
10868 </p><p>
10869 The mistake here is the error of the excluded middle. There are
10870 extremes in this debate, but the extremes are not all that there
10871 is. There are those who believe in maximal copyright&#8212;<span class="quote">«<span class="quote">All Rights
10872 Reserved</span>»</span>&#8212; and those who reject copyright&#8212;<span class="quote">«<span class="quote">No Rights
10873 Reserved.</span>»</span> The <span class="quote">«<span class="quote">All Rights Reserved</span>»</span> sorts believe that you should ask
10874 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
10875 Rights Reserved</span>»</span> sorts believe you should be able to do with content
10876 as you wish, regardless of whether you have permission or not.
10877 </p><a class="indexterm" name="idxinternetdevelopmentof2"></a><a class="indexterm" name="idxinternetinitialfreecharacterof"></a><p>
10878 When the Internet was first born, its initial architecture effectively
10879 tilted in the <span class="quote">«<span class="quote">no rights reserved</span>»</span> direction. Content could be copied
10880 perfectly and cheaply; rights could not easily be controlled. Thus,
10881 regardless of anyone's desire, the effective regime of copyright under
10882 the
10883
10884
10885 original design of the Internet was <span class="quote">«<span class="quote">no rights reserved.</span>»</span> Content was
10886 <span class="quote">«<span class="quote">taken</span>»</span> regardless of the rights. Any rights were effectively
10887 unprotected.
10888 </p><p>
10889 This initial character produced a reaction (opposite, but not quite
10890 equal) by copyright owners. That reaction has been the topic of this
10891 book. Through legislation, litigation, and changes to the network's
10892 design, copyright holders have been able to change the essential
10893 character of the environment of the original Internet. If the original
10894 architecture made the effective default <span class="quote">«<span class="quote">no rights reserved,</span>»</span> the
10895 future architecture will make the effective default <span class="quote">«<span class="quote">all rights
10896 reserved.</span>»</span> The architecture and law that surround the Internet's
10897 design will increasingly produce an environment where all use of
10898 content requires permission.  The <span class="quote">«<span class="quote">cut and paste</span>»</span> world that defines
10899 the Internet today will become a <span class="quote">«<span class="quote">get permission to cut and paste</span>»</span>
10900 world that is a creator's nightmare.
10901 </p><a class="indexterm" name="idp10358432"></a><a class="indexterm" name="idp10359824"></a><p>
10902 What's needed is a way to say something in the middle&#8212;neither
10903 <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
10904 reserved</span>»</span>&#8212; and thus a way to respect copyrights but enable
10905 creators to free content as they see fit. In other words, we need a
10906 way to restore a set of freedoms that we could just take for granted
10907 before.
10908 </p><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="examples"></a>16.1.1. Rebuilding Freedoms Previously Presumed: Examples</h3></div></div></div><a class="indexterm" name="idxfreeculturerestorationeffortsonpreviousaspectsof"></a><a class="indexterm" name="idxbrowsing"></a><a class="indexterm" name="idxprivacyrights2"></a><p>
10909 If you step back from the battle I've been describing here, you will
10910 recognize this problem from other contexts. Think about
10911 privacy. Before the Internet, most of us didn't have to worry much
10912 about data about our lives that we broadcast to the world. If you
10913 walked into a bookstore and browsed through some of the works of Karl
10914 Marx, you didn't need to worry about explaining your browsing habits
10915 to your neighbors or boss. The <span class="quote">«<span class="quote">privacy</span>»</span> of your browsing habits was
10916 assured.
10917 </p><p>
10918 What made it assured?
10919 </p><p>
10920 Well, if we think in terms of the modalities I described in chapter
10921 <a class="xref" href="#property-i" title="Chapter 10. CHAPTER TEN: «Property»">10</a>, your
10922 privacy was assured because of an inefficient architecture for
10923 gathering data and hence a market constraint (cost) on anyone who
10924 wanted to gather that data. If you were a suspected spy for North
10925 Korea, working for the CIA, no doubt your privacy would not be
10926 assured.  But that's because the CIA would (we hope) find it valuable
10927 enough to spend the thousands required to track you. But for most of
10928 us (again, we can hope), spying doesn't pay. The highly inefficient
10929 architecture of real space means we all enjoy a fairly robust amount
10930 of privacy. That privacy is guaranteed to us by friction. Not by law
10931 (there is no law protecting <span class="quote">«<span class="quote">privacy</span>»</span> in public places), and in many
10932 places, not by norms (snooping and gossip are just fun), but instead,
10933 by the costs that friction imposes on anyone who would want to spy.
10934 </p><a class="indexterm" name="idxamazon"></a><a class="indexterm" name="idp10375504"></a><a class="indexterm" name="idxinternetprivacyprotectionon"></a><p>
10935 Enter the Internet, where the cost of tracking browsing in particular
10936 has become quite tiny. If you're a customer at Amazon, then as you
10937 browse the pages, Amazon collects the data about what you've looked
10938 at. You know this because at the side of the page, there's a list of
10939 <span class="quote">«<span class="quote">recently viewed</span>»</span> pages. Now, because of the architecture of the Net
10940 and the function of cookies on the Net, it is easier to collect the
10941 data than not. The friction has disappeared, and hence any <span class="quote">«<span class="quote">privacy</span>»</span>
10942 protected by the friction disappears, too.
10943 </p><a class="indexterm" name="idp10380016"></a><p>
10944 Amazon, of course, is not the problem. But we might begin to worry
10945 about libraries. If you're one of those crazy lefties who thinks that
10946 people should have the <span class="quote">«<span class="quote">right</span>»</span> to browse in a library without the
10947 government knowing which books you look at (I'm one of those lefties,
10948 too), then this change in the technology of monitoring might concern
10949 you. If it becomes simple to gather and sort who does what in
10950 electronic spaces, then the friction-induced privacy of yesterday
10951 disappears.
10952 </p><a class="indexterm" name="idp10382400"></a><a class="indexterm" name="idp10383712"></a><p>
10953 It is this reality that explains the push of many to define <span class="quote">«<span class="quote">privacy</span>»</span>
10954 on the Internet. It is the recognition that technology can remove what
10955 friction before gave us that leads many to push for laws to do what
10956 friction did.<a href="#ftn.idp10385952" class="footnote" name="idp10385952"><sup class="footnote">[210]</sup></a>
10957 And whether you're in favor of those laws or not, it is the pattern
10958 that is important here. We must take affirmative steps to secure a
10959
10960
10961 kind of freedom that was passively provided before. A change in
10962 technology now forces those who believe in privacy to affirmatively
10963 act where, before, privacy was given by default.
10964 </p><a class="indexterm" name="idp10389968"></a><a class="indexterm" name="idp10391248"></a><a class="indexterm" name="idp10392640"></a><a class="indexterm" name="idp10393456"></a><a class="indexterm" name="idxfreesoftwareopensourcesoftwarefsoss2"></a><p>
10965 A similar story could be told about the birth of the free software
10966 movement. When computers with software were first made available
10967 commercially, the software&#8212;both the source code and the
10968 binaries&#8212; was free. You couldn't run a program written for a
10969 Data General machine on an IBM machine, so Data General and IBM didn't
10970 care much about controlling their software.
10971 </p><a class="indexterm" name="idxstallmanrichard"></a><p>
10972 That was the world Richard Stallman was born into, and while he was a
10973 researcher at MIT, he grew to love the community that developed when
10974 one was free to explore and tinker with the software that ran on
10975 machines. Being a smart sort himself, and a talented programmer,
10976 Stallman grew to depend upon the freedom to add to or modify other
10977 people's work.
10978 </p><p>
10979 In an academic setting, at least, that's not a terribly radical
10980 idea. In a math department, anyone would be free to tinker with a
10981 proof that someone offered. If you thought you had a better way to
10982 prove a theorem, you could take what someone else did and change
10983 it. In a classics department, if you believed a colleague's
10984 translation of a recently discovered text was flawed, you were free to
10985 improve it. Thus, to Stallman, it seemed obvious that you should be
10986 free to tinker with and improve the code that ran a machine. This,
10987 too, was knowledge. Why shouldn't it be open for criticism like
10988 anything else?
10989 </p><a class="indexterm" name="idxproprietarycode"></a><p>
10990 No one answered that question. Instead, the architecture of revenue
10991 for computing changed. As it became possible to import programs from
10992 one system to another, it became economically attractive (at least in
10993 the view of some) to hide the code of your program. So, too, as
10994 companies started selling peripherals for mainframe systems. If I
10995 could just take your printer driver and copy it, then that would make
10996 it easier for me to sell a printer to the market than it was for you.
10997 </p><p>
10998 Thus, the practice of proprietary code began to spread, and by the
10999 early 1980s, Stallman found himself surrounded by proprietary code.
11000
11001 The world of free software had been erased by a change in the
11002 economics of computing. And as he believed, if he did nothing about
11003 it, then the freedom to change and share software would be
11004 fundamentally weakened.
11005 </p><a class="indexterm" name="idp10403456"></a><a class="indexterm" name="idp10404736"></a><p>
11006 Therefore, in 1984, Stallman began a project to build a free operating
11007 system, so that at least a strain of free software would survive. That
11008 was the birth of the GNU project, into which Linus Torvalds's <span class="quote">«<span class="quote">Linux</span>»</span>
11009 kernel was added to produce the GNU/Linux operating system.
11010 <a class="indexterm" name="idp10406528"></a>
11011 <a class="indexterm" name="idp10407360"></a>
11012 </p><p>
11013 Stallman's technique was to use copyright law to build a world of
11014 software that must be kept free. Software licensed under the Free
11015 Software Foundation's GPL cannot be modified and distributed unless
11016 the source code for that software is made available as well. Thus,
11017 anyone building upon GPL'd software would have to make their buildings
11018 free as well. This would assure, Stallman believed, that an ecology of
11019 code would develop that remained free for others to build upon. His
11020 fundamental goal was freedom; innovative creative code was a
11021 byproduct.
11022 </p><p>
11023 Stallman was thus doing for software what privacy advocates now
11024 do for privacy. He was seeking a way to rebuild a kind of freedom that
11025 was taken for granted before. Through the affirmative use of licenses
11026 that bind copyrighted code, Stallman was affirmatively reclaiming a
11027 space where free software would survive. He was actively protecting
11028 what before had been passively guaranteed.
11029 </p><a class="indexterm" name="idp10410032"></a><a class="indexterm" name="idp10411360"></a><a class="indexterm" name="idxacademicjournals"></a><a class="indexterm" name="idxscientificjournals"></a><p>
11030 Finally, consider a very recent example that more directly resonates
11031 with the story of this book. This is the shift in the way academic and
11032 scientific journals are produced.
11033 </p><a class="indexterm" name="idxlexisandwestlaw"></a><a class="indexterm" name="idxlawdatabasesofcasereportsin"></a><a class="indexterm" name="idp10419728"></a><a class="indexterm" name="idp10420832"></a><p>
11034 As digital technologies develop, it is becoming obvious to many that
11035 printing thousands of copies of journals every month and sending them
11036 to libraries is perhaps not the most efficient way to distribute
11037 knowledge. Instead, journals are increasingly becoming electronic, and
11038 libraries and their users are given access to these electronic
11039 journals through password-protected sites. Something similar to this
11040 has been happening in law for almost thirty years: Lexis and Westlaw
11041 have had electronic versions of case reports available to subscribers
11042 to their service.  Although a Supreme Court opinion is not
11043 copyrighted, and anyone is free to go to a library and read it, Lexis
11044 and Westlaw are also free
11045
11046 to charge users for the privilege of gaining access to that Supreme
11047 Court opinion through their respective services.
11048 </p><a class="indexterm" name="idp10423488"></a><a class="indexterm" name="idxpublicdomainlicensesystemforrebuildingof"></a><p>
11049 There's nothing wrong in general with this, and indeed, the ability to
11050 charge for access to even public domain materials is a good incentive
11051 for people to develop new and innovative ways to spread knowledge.
11052 The law has agreed, which is why Lexis and Westlaw have been allowed
11053 to flourish. And if there's nothing wrong with selling the public
11054 domain, then there could be nothing wrong, in principle, with selling
11055 access to material that is not in the public domain.
11056 </p><a class="indexterm" name="idp10427440"></a><a class="indexterm" name="idp10428688"></a><p>
11057 But what if the only way to get access to social and scientific data
11058 was through proprietary services? What if no one had the ability to
11059 browse this data except by paying for a subscription?
11060 </p><a class="indexterm" name="idxlibrariesjournalsin"></a><p>
11061 As many are beginning to notice, this is increasingly the reality with
11062 scientific journals. When these journals were distributed in paper
11063 form, libraries could make the journals available to anyone who had
11064 access to the library. Thus, patients with cancer could become cancer
11065 experts because the library gave them access. Or patients trying to
11066 understand the risks of a certain treatment could research those risks
11067 by reading all available articles about that treatment. This freedom
11068 was therefore a function of the institution of libraries (norms) and
11069 the technology of paper journals (architecture)&#8212;namely, that it
11070 was very hard to control access to a paper journal.
11071 </p><p>
11072 As journals become electronic, however, the publishers are demanding
11073 that libraries not give the general public access to the
11074 journals. This means that the freedoms provided by print journals in
11075 public libraries begin to disappear. Thus, as with privacy and with
11076 software, a changing technology and market shrink a freedom taken for
11077 granted before.
11078 </p><a class="indexterm" name="idp10434272"></a><a class="indexterm" name="idp10435072"></a><p>
11079 This shrinking freedom has led many to take affirmative steps to
11080 restore the freedom that has been lost. The Public Library of Science
11081 (PLoS), for example, is a nonprofit corporation dedicated to making
11082 scientific research available to anyone with a Web connection. Authors
11083
11084 of scientific work submit that work to the Public Library of Science.
11085 That work is then subject to peer review. If accepted, the work is
11086 then deposited in a public, electronic archive and made permanently
11087 available for free. PLoS also sells a print version of its work, but
11088 the copyright for the print journal does not inhibit the right of
11089 anyone to redistribute the work for free.
11090 </p><a class="indexterm" name="idp10437408"></a><p>
11091 This is one of many such efforts to restore a freedom taken for
11092 granted before, but now threatened by changing technology and markets.
11093 There's no doubt that this alternative competes with the traditional
11094 publishers and their efforts to make money from the exclusive
11095 distribution of content. But competition in our tradition is
11096 presumptively a good&#8212;especially when it helps spread knowledge
11097 and science.
11098 </p><a class="indexterm" name="idp10438880"></a><a class="indexterm" name="idp10440864"></a><a class="indexterm" name="idp10442112"></a></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="oneidea"></a>16.1.2. Rebuilding Free Culture: One Idea</h3></div></div></div><a class="indexterm" name="idxcreativecommons"></a><p>
11099 The same strategy could be applied to culture, as a response to the
11100 increasing control effected through law and technology.
11101 </p><a class="indexterm" name="idp10446704"></a><p>
11102 Enter the Creative Commons. The Creative Commons is a nonprofit
11103 corporation established in Massachusetts, but with its home at
11104 Stanford University. Its aim is to build a layer of
11105 <span class="emphasis"><em>reasonable</em></span> copyright on top of the extremes that
11106 now reign. It does this by making it easy for people to build upon
11107 other people's work, by making it simple for creators to express the
11108 freedom for others to take and build upon their work. Simple tags,
11109 tied to human-readable descriptions, tied to bulletproof licenses,
11110 make this possible.
11111 </p><p>
11112 <span class="emphasis"><em>Simple</em></span>&#8212;which means without a middleman, or
11113 without a lawyer.  By developing a free set of licenses that people
11114 can attach to their content, Creative Commons aims to mark a range of
11115 content that can easily, and reliably, be built upon. These tags are
11116 then linked to machine-readable versions of the license that enable
11117 computers automatically to identify content that can easily be
11118 shared. These three expressions together&#8212;a legal license, a
11119 human-readable description, and
11120
11121 machine-readable tags&#8212;constitute a Creative Commons license. A
11122 Creative Commons license constitutes a grant of freedom to anyone who
11123 accesses the license, and more importantly, an expression of the ideal
11124 that the person associated with the license believes in something
11125 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
11126 CC mark, which does not mean that copyright is waived, but that
11127 certain freedoms are given.
11128 </p><p>
11129 These freedoms are beyond the freedoms promised by fair use. Their
11130 precise contours depend upon the choices the creator makes. The
11131 creator can choose a license that permits any use, so long as
11132 attribution is given. She can choose a license that permits only
11133 noncommercial use.  She can choose a license that permits any use so
11134 long as the same freedoms are given to other uses (<span class="quote">«<span class="quote">share and share
11135 alike</span>»</span>). Or any use so long as no derivative use is made. Or any use
11136 at all within developing nations. Or any sampling use, so long as full
11137 copies are not made. Or lastly, any educational use.
11138 </p><p>
11139 These choices thus establish a range of freedoms beyond the default of
11140 copyright law. They also enable freedoms that go beyond traditional
11141 fair use. And most importantly, they express these freedoms in a way
11142 that subsequent users can use and rely upon without the need to hire a
11143 lawyer. Creative Commons thus aims to build a layer of content,
11144 governed by a layer of reasonable copyright law, that others can build
11145 upon. Voluntary choice of individuals and creators will make this
11146 content available. And that content will in turn enable us to rebuild
11147 a public domain.
11148 </p><a class="indexterm" name="idp10454176"></a><p>
11149 This is just one project among many within the Creative Commons.  And
11150 of course, Creative Commons is not the only organization pursuing such
11151 freedoms. But the point that distinguishes the Creative Commons from
11152 many is that we are not interested only in talking about a public
11153 domain or in getting legislators to help build a public domain. Our
11154 aim is to build a movement of consumers and producers
11155
11156 of content (<span class="quote">«<span class="quote">content conducers,</span>»</span> as attorney Mia Garlick calls them)
11157 who help build the public domain and, by their work, demonstrate the
11158 importance of the public domain to other creativity.
11159 </p><a class="indexterm" name="idp10456704"></a><p>
11160 The aim is not to fight the <span class="quote">«<span class="quote">All Rights Reserved</span>»</span> sorts. The aim is to
11161 complement them. The problems that the law creates for us as a culture
11162 are produced by insane and unintended consequences of laws written
11163 centuries ago, applied to a technology that only Jefferson could have
11164 imagined. The rules may well have made sense against a background of
11165 technologies from centuries ago, but they do not make sense against
11166 the background of digital technologies. New rules&#8212;with different
11167 freedoms, expressed in ways so that humans without lawyers can use
11168 them&#8212;are needed. Creative Commons gives people a way effectively
11169 to begin to build those rules.
11170 </p><a class="indexterm" name="idxbooksfreeonline2"></a><p>
11171 Why would creators participate in giving up total control? Some
11172 participate to better spread their content. Cory Doctorow, for
11173 example, is a science fiction author. His first novel, <em class="citetitle">Down and Out in
11174 the Magic Kingdom</em>, was released on-line and for free, under a Creative
11175 Commons license, on the same day that it went on sale in bookstores.
11176 </p><p>
11177 Why would a publisher ever agree to this? I suspect his publisher
11178 reasoned like this: There are two groups of people out there: (1)
11179 those who will buy Cory's book whether or not it's on the Internet,
11180 and (2) those who may never hear of Cory's book, if it isn't made
11181 available for free on the Internet. Some part of (1) will download
11182 Cory's book instead of buying it. Call them bad-(1)s. Some part of (2)
11183 will download Cory's book, like it, and then decide to buy it. Call
11184 them (2)-goods.  If there are more (2)-goods than bad-(1)s, the
11185 strategy of releasing Cory's book free on-line will probably
11186 <span class="emphasis"><em>increase</em></span> sales of Cory's book.
11187 </p><p>
11188 Indeed, the experience of his publisher clearly supports that
11189 conclusion.  The book's first printing was exhausted months before the
11190 publisher had expected. This first novel of a science fiction author
11191 was a total success.
11192 </p><a class="indexterm" name="idp10464672"></a><a class="indexterm" name="idp10465488"></a><p>
11193 The idea that free content might increase the value of nonfree content
11194 was confirmed by the experience of another author. Peter Wayner,
11195
11196 who wrote a book about the free software movement titled <em class="citetitle">Free for All</em>,
11197 made an electronic version of his book free on-line under a Creative
11198 Commons license after the book went out of print. He then monitored
11199 used book store prices for the book. As predicted, as the number of
11200 downloads increased, the used book price for his book increased, as
11201 well.
11202 </p><a class="indexterm" name="idp10467856"></a><a class="indexterm" name="idp10469104"></a><a class="indexterm" name="idp10469920"></a><a class="indexterm" name="idp10470736"></a><p>
11203 These are examples of using the Commons to better spread proprietary
11204 content. I believe that is a wonderful and common use of the
11205 Commons. There are others who use Creative Commons licenses for other
11206 reasons. Many who use the <span class="quote">«<span class="quote">sampling license</span>»</span> do so because anything
11207 else would be hypocritical. The sampling license says that others are
11208 free, for commercial or noncommercial purposes, to sample content from
11209 the licensed work; they are just not free to make full copies of the
11210 licensed work available to others. This is consistent with their own
11211 art&#8212;they, too, sample from others. Because the
11212 <span class="emphasis"><em>legal</em></span> costs of sampling are so high (Walter
11213 Leaphart, manager of the rap group Public Enemy, which was born
11214 sampling the music of others, has stated that he does not <span class="quote">«<span class="quote">allow</span>»</span>
11215 Public Enemy to sample anymore, because the legal costs are so
11216 high<a href="#ftn.idp10473952" class="footnote" name="idp10473952"><sup class="footnote">[211]</sup></a>),
11217 these artists release into the creative environment content
11218 that others can build upon, so that their form of creativity might grow.
11219 </p><p>
11220 Finally, there are many who mark their content with a Creative Commons
11221 license just because they want to express to others the importance of
11222 balance in this debate. If you just go along with the system as it is,
11223 you are effectively saying you believe in the <span class="quote">«<span class="quote">All Rights Reserved</span>»</span>
11224 model. Good for you, but many do not. Many believe that however
11225 appropriate that rule is for Hollywood and freaks, it is not an
11226 appropriate description of how most creators view the rights
11227 associated with their content. The Creative Commons license expresses
11228 this notion of <span class="quote">«<span class="quote">Some Rights Reserved,</span>»</span> and gives many the chance to
11229 say it to others.
11230 </p><p>
11231 In the first six months of the Creative Commons experiment, over
11232 1 million objects were licensed with these free-culture licenses. The next
11233 step is partnerships with middleware content providers to help them
11234 build into their technologies simple ways for users to mark their content
11235
11236
11237 with Creative Commons freedoms. Then the next step is to watch and
11238 celebrate creators who build content based upon content set free.
11239 </p><p>
11240 These are first steps to rebuilding a public domain. They are not
11241 mere arguments; they are action. Building a public domain is the first
11242 step to showing people how important that domain is to creativity and
11243 innovation. Creative Commons relies upon voluntary steps to achieve
11244 this rebuilding. They will lead to a world in which more than voluntary
11245 steps are possible.
11246 </p><p>
11247 Creative Commons is just one example of voluntary efforts by
11248 individuals and creators to change the mix of rights that now govern
11249 the creative field. The project does not compete with copyright; it
11250 complements it. Its aim is not to defeat the rights of authors, but to
11251 make it easier for authors and creators to exercise their rights more
11252 flexibly and cheaply. That difference, we believe, will enable
11253 creativity to spread more easily.
11254 </p><a class="indexterm" name="idp10480928"></a><a class="indexterm" name="idp10482336"></a></div></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="themsoon"></a>16.2. THEM, SOON</h2></div></div></div><p>
11255 <span class="strong"><strong>We will</strong></span> not reclaim a free culture
11256 by individual action alone. It will also take important reforms of
11257 laws. We have a long way to go before the politicians will listen to
11258 these ideas and implement these reforms.  But that also means that we
11259 have time to build awareness around the changes that we need.
11260 </p><p>
11261 In this chapter, I outline five kinds of changes: four that are general,
11262 and one that's specific to the most heated battle of the day, music. Each
11263 is a step, not an end. But any of these steps would carry us a long way
11264 to our end.
11265 </p><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="formalities"></a>16.2.1. 1. More Formalities</h3></div></div></div><p>
11266 If you buy a house, you have to record the sale in a deed. If you buy land
11267 upon which to build a house, you have to record the purchase in a deed.
11268 If you buy a car, you get a bill of sale and register the car. If you buy an
11269 airplane ticket, it has your name on it.
11270 </p><p>
11271
11272 These are all formalities associated with property. They are
11273 requirements that we all must bear if we want our property to be
11274 protected.
11275 </p><p>
11276 In contrast, under current copyright law, you automatically get a
11277 copyright, regardless of whether you comply with any formality. You
11278 don't have to register. You don't even have to mark your content. The
11279 default is control, and <span class="quote">«<span class="quote">formalities</span>»</span> are banished.
11280 </p><p>
11281 Why?
11282 </p><p>
11283 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
11284 good one. In the world before digital technologies, formalities
11285 imposed a burden on copyright holders without much benefit. Thus, it
11286 was progress when the law relaxed the formal requirements that a
11287 copyright owner must bear to protect and secure his work. Those
11288 formalities were getting in the way.
11289 </p><p>
11290 But the Internet changes all this. Formalities today need not be a
11291 burden. Rather, the world without formalities is the world that
11292 burdens creativity. Today, there is no simple way to know who owns
11293 what, or with whom one must deal in order to use or build upon the
11294 creative work of others. There are no records, there is no system to
11295 trace&#8212; there is no simple way to know how to get permission. Yet
11296 given the massive increase in the scope of copyright's rule, getting
11297 permission is a necessary step for any work that builds upon our
11298 past. And thus, the <span class="emphasis"><em>lack</em></span> of formalities forces
11299 many into silence where they otherwise could speak.
11300 </p><p>
11301 The law should therefore change this requirement<a href="#ftn.idp10495024" class="footnote" name="idp10495024"><sup class="footnote">[212]</sup></a>&#8212;but it
11302 should not change it by going back to the old, broken system. We
11303 should require formalities, but we should establish a system that will
11304 create the incentives to minimize the burden of these formalities.
11305 </p><p>
11306 The important formalities are three: marking copyrighted work,
11307 registering copyrights, and renewing the claim to
11308 copyright. Traditionally, the first of these three was something the
11309 copyright owner did; the second two were something the government
11310 did. But a revised system of formalities would banish the government
11311 from the process, except for the sole purpose of approving standards
11312 developed by others.
11313 </p><div class="section"><div class="titlepage"><div><div><h4 class="title"><a name="registration"></a>16.2.1.1. REGISTRATION AND RENEWAL</h4></div></div></div><p>
11314 Under the old system, a copyright owner had to file a registration
11315 with the Copyright Office to register or renew a copyright. When
11316 filing that registration, the copyright owner paid a fee. As with most
11317 government agencies, the Copyright Office had little incentive to
11318 minimize the burden of registration; it also had little incentive to
11319 minimize the fee.  And as the Copyright Office is not a main target of
11320 government policymaking, the office has historically been terribly
11321 underfunded. Thus, when people who know something about the process
11322 hear this idea about formalities, their first reaction is
11323 panic&#8212;nothing could be worse than forcing people to deal with
11324 the mess that is the Copyright Office.
11325 </p><p>
11326 Yet it is always astonishing to me that we, who come from a tradition
11327 of extraordinary innovation in governmental design, can no longer
11328 think innovatively about how governmental functions can be designed.
11329 Just because there is a public purpose to a government role, it
11330 doesn't follow that the government must actually administer the
11331 role. Instead, we should be creating incentives for private parties to
11332 serve the public, subject to standards that the government sets.
11333 </p><p>
11334 In the context of registration, one obvious model is the Internet.
11335 There are at least 32 million Web sites registered around the world.
11336 Domain name owners for these Web sites have to pay a fee to keep their
11337 registration alive. In the main top-level domains (.com, .org, .net),
11338 there is a central registry. The actual registrations are, however,
11339 performed by many competing registrars. That competition drives the
11340 cost of registering down, and more importantly, it drives the ease
11341 with which registration occurs up.
11342 </p><p>
11343 We should adopt a similar model for the registration and renewal of
11344 copyrights. The Copyright Office may well serve as the central
11345 registry, but it should not be in the registrar business. Instead, it
11346 should establish a database, and a set of standards for registrars. It
11347 should approve registrars that meet its standards. Those registrars
11348 would then compete with one another to deliver the cheapest and
11349 simplest systems for registering and renewing copyrights. That
11350 competition would substantially lower the burden of this
11351 formality&#8212;while producing a database
11352
11353 of registrations that would facilitate the licensing of content.
11354 </p></div><div class="section"><div class="titlepage"><div><div><h4 class="title"><a name="marking"></a>16.2.1.2. MARKING</h4></div></div></div><p>
11355 It used to be that the failure to include a copyright notice on a
11356 creative work meant that the copyright was forfeited. That was a harsh
11357 punishment for failing to comply with a regulatory rule&#8212;akin to
11358 imposing the death penalty for a parking ticket in the world of
11359 creative rights.  Here again, there is no reason that a marking
11360 requirement needs to be enforced in this way. And more importantly,
11361 there is no reason a marking requirement needs to be enforced
11362 uniformly across all media.
11363 </p><p>
11364 The aim of marking is to signal to the public that this work is
11365 copyrighted and that the author wants to enforce his rights. The mark
11366 also makes it easy to locate a copyright owner to secure permission to
11367 use the work.
11368 </p><p>
11369 One of the problems the copyright system confronted early on was
11370 that different copyrighted works had to be differently marked. It wasn't
11371 clear how or where a statue was to be marked, or a record, or a film. A
11372 new marking requirement could solve these problems by recognizing
11373 the differences in media, and by allowing the system of marking to
11374 evolve as technologies enable it to. The system could enable a special
11375 signal from the failure to mark&#8212;not the loss of the copyright, but the
11376 loss of the right to punish someone for failing to get permission first.
11377 </p><p>
11378 Let's start with the last point. If a copyright owner allows his work
11379 to be published without a copyright notice, the consequence of that
11380 failure need not be that the copyright is lost. The consequence could
11381 instead be that anyone has the right to use this work, until the
11382 copyright owner complains and demonstrates that it is his work and he
11383 doesn't give permission.<a href="#ftn.idp10506288" class="footnote" name="idp10506288"><sup class="footnote">[213]</sup></a>
11384 The meaning of an unmarked work would therefore be <span class="quote">«<span class="quote">use unless someone
11385 complains.</span>»</span> If someone does complain, then the obligation would be to
11386 stop using the work in any new
11387
11388 work from then on though no penalty would attach for existing uses.
11389 This would create a strong incentive for copyright owners to mark
11390 their work.
11391 </p><p>
11392 That in turn raises the question about how work should best be
11393 marked. Here again, the system needs to adjust as the technologies
11394 evolve. The best way to ensure that the system evolves is to limit the
11395 Copyright Office's role to that of approving standards for marking
11396 content that have been crafted elsewhere.
11397 </p><a class="indexterm" name="idp10510272"></a><p>
11398 For example, if a recording industry association devises a method for
11399 marking CDs, it would propose that to the Copyright Office. The
11400 Copyright Office would hold a hearing, at which other proposals could
11401 be made. The Copyright Office would then select the proposal that it
11402 judged preferable, and it would base that choice
11403 <span class="emphasis"><em>solely</em></span> upon the consideration of which method
11404 could best be integrated into the registration and renewal system. We
11405 would not count on the government to innovate; but we would count on
11406 the government to keep the product of innovation in line with its
11407 other important functions.
11408 </p><p>
11409 Finally, marking content clearly would simplify registration
11410 requirements.  If photographs were marked by author and year, there
11411 would be little reason not to allow a photographer to reregister, for
11412 example, all photographs taken in a particular year in one quick
11413 step. The aim of the formality is not to burden the creator; the
11414 system itself should be kept as simple as possible.
11415 </p><p>
11416 The objective of formalities is to make things clear. The existing
11417 system does nothing to make things clear. Indeed, it seems designed to
11418 make things unclear.
11419 </p><p>
11420 If formalities such as registration were reinstated, one of the most
11421 difficult aspects of relying upon the public domain would be removed.
11422 It would be simple to identify what content is presumptively free; it
11423 would be simple to identify who controls the rights for a particular
11424 kind of content; it would be simple to assert those rights, and to renew
11425 that assertion at the appropriate time.
11426 </p></div></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="shortterms"></a>16.2.2. 2. Shorter Terms</h3></div></div></div><p>
11427 The term of copyright has gone from fourteen years to ninety-five
11428 years for corporate authors, and life of the author plus seventy years for
11429 natural authors.
11430 </p><p>
11431 In <em class="citetitle">The Future of Ideas</em>, I proposed a seventy-five-year term,
11432 granted in five-year increments with a requirement of renewal every
11433 five years.  That seemed radical enough at the time. But after we lost
11434 <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, the proposals became even more
11435 radical. <em class="citetitle">The Economist</em> endorsed a proposal for a fourteen-year
11436 copyright term.<a href="#ftn.idp10519488" class="footnote" name="idp10519488"><sup class="footnote">[214]</sup></a>
11437 Others have proposed tying the term to the term for patents.
11438 </p><p>
11439 I agree with those who believe that we need a radical change in
11440 copyright's term. But whether fourteen years or seventy-five, there
11441 are four principles that are important to keep in mind about copyright
11442 terms.
11443 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><p>
11444
11445 <span class="emphasis"><em>Keep it short:</em></span> The term should be as long as
11446 necessary to give incentives to create, but no longer. If it were tied
11447 to very strong protections for authors (so authors were able to
11448 reclaim rights from publishers), rights to the same work (not
11449 derivative works) might be extended further. The key is not to tie the
11450 work up with legal regulations when it no longer benefits an author.
11451 </p></li><li class="listitem"><p>
11452
11453 <span class="emphasis"><em>Keep it simple:</em></span> The line between the public
11454 domain and protected content must be kept clear. Lawyers like the
11455 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
11456 <span class="quote">«<span class="quote">expression.</span>»</span>  That kind of law gives them lots of work. But our
11457 framers had a simpler idea in mind: protected versus unprotected.  The
11458 value of short terms is that there is little need to build exceptions
11459 into copyright when the term itself is kept short. A clear and active
11460 <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
11461 <span class="quote">«<span class="quote">idea/expression</span>»</span> less necessary to navigate.
11462
11463 </p></li><li class="listitem"><a class="indexterm" name="idp10530368"></a><p>
11464
11465 <span class="emphasis"><em>Keep it alive:</em></span> Copyright should have to be
11466 renewed.  Especially if the maximum term is long, the copyright owner
11467 should be required to signal periodically that he wants the protection
11468 continued. This need not be an onerous burden, but there is no reason
11469 this monopoly protection has to be granted for free. On average, it
11470 takes ninety minutes for a veteran to apply for a
11471 pension.<a href="#ftn.idp10532528" class="footnote" name="idp10532528"><sup class="footnote">[215]</sup></a>
11472 If we make veterans suffer that burden, I don't see why we couldn't
11473 require authors to spend ten minutes every fifty years to file a
11474 single form.
11475 </p></li><li class="listitem"><p>
11476
11477 <span class="emphasis"><em>Keep it prospective:</em></span> Whatever the term of
11478 copyright should be, the clearest lesson that economists teach is that
11479 a term once given should not be extended. It might have been a mistake
11480 in 1923 for the law to offer authors only a fifty-six-year term. I
11481 don't think so, but it's possible. If it was a mistake, then the
11482 consequence was that we got fewer authors to create in 1923 than we
11483 otherwise would have. But we can't correct that mistake today by
11484 increasing the term. No matter what we do today, we will not increase
11485 the number of authors who wrote in 1923. Of course, we can increase
11486 the reward that those who write now get (or alternatively, increase
11487 the copyright burden that smothers many works that are today
11488 invisible). But increasing their reward will not increase their
11489 creativity in 1923.  What's not done is not done, and there's nothing
11490 we can do about that now.  </p></li></ol></div><p>
11491 These changes together should produce an <span class="emphasis"><em>average</em></span>
11492 copyright term that is much shorter than the current term. Until 1976,
11493 the average term was just 32.2 years. We should be aiming for the
11494 same.
11495 </p><p>
11496 No doubt the extremists will call these ideas <span class="quote">«<span class="quote">radical.</span>»</span> (After all, I
11497 call them <span class="quote">«<span class="quote">extremists.</span>»</span>) But again, the term I recommended was longer
11498 than the term under Richard Nixon. How <span class="quote">«<span class="quote">radical</span>»</span> can it be to ask for
11499 a more generous copyright law than Richard Nixon presided over?
11500 </p></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="freefairuse"></a>16.2.3. 3. Free Use Vs. Fair Use</h3></div></div></div><a class="indexterm" name="idp10541376"></a><a class="indexterm" name="idp10542176"></a><p>
11501 As I observed at the beginning of this book, property law originally
11502 granted property owners the right to control their property from the
11503 ground to the heavens. The airplane came along. The scope of property
11504 rights quickly changed. There was no fuss, no constitutional
11505 challenge.  It made no sense anymore to grant that much control, given
11506 the emergence of that new technology.
11507 </p><p>
11508 Our Constitution gives Congress the power to give authors <span class="quote">«<span class="quote">exclusive
11509 right</span>»</span> to <span class="quote">«<span class="quote">their writings.</span>»</span> Congress has given authors an exclusive
11510 right to <span class="quote">«<span class="quote">their writings</span>»</span> plus any derivative writings (made by
11511 others) that are sufficiently close to the author's original
11512 work. Thus, if I write a book, and you base a movie on that book, I
11513 have the power to deny you the right to release that movie, even
11514 though that movie is not <span class="quote">«<span class="quote">my writing.</span>»</span>
11515 </p><a class="indexterm" name="idp10546560"></a><p>
11516 Congress granted the beginnings of this right in 1870, when it
11517 expanded the exclusive right of copyright to include a right to
11518 control translations and dramatizations of a work.<a href="#ftn.idp10547824" class="footnote" name="idp10547824"><sup class="footnote">[216]</sup></a>
11519 The courts have expanded it slowly through judicial interpretation
11520 ever since. This expansion has been commented upon by one of the law's
11521 greatest judges, Judge Benjamin Kaplan.
11522 </p><div class="blockquote"><blockquote class="blockquote"><p>
11523 So inured have we become to the extension of the monopoly to a
11524 large range of so-called derivative works, that we no longer sense
11525 the oddity of accepting such an enlargement of copyright while
11526 yet intoning the abracadabra of idea and expression.<a href="#ftn.idp10550272" class="footnote" name="idp10550272"><sup class="footnote">[217]</sup></a>
11527 </p></blockquote></div><p>
11528 I think it's time to recognize that there are airplanes in this field and
11529 the expansiveness of these rights of derivative use no longer make
11530 sense. More precisely, they don't make sense for the period of time that
11531 a copyright runs. And they don't make sense as an amorphous grant.
11532 Consider each limitation in turn.
11533 </p><p>
11534 <span class="emphasis"><em>Term:</em></span> If Congress wants to grant a derivative
11535 right, then that right should be for a much shorter term. It makes
11536 sense to protect John
11537
11538
11539 Grisham's right to sell the movie rights to his latest novel (or at least
11540 I'm willing to assume it does); but it does not make sense for that right
11541 to run for the same term as the underlying copyright. The derivative
11542 right could be important in inducing creativity; it is not important long
11543 after the creative work is done.
11544 <a class="indexterm" name="idp10553584"></a>
11545 </p><p>
11546 <span class="emphasis"><em>Scope:</em></span> Likewise should the scope of derivative
11547 rights be narrowed.  Again, there are some cases in which derivative
11548 rights are important.  Those should be specified. But the law should
11549 draw clear lines around regulated and unregulated uses of copyrighted
11550 material. When all <span class="quote">«<span class="quote">reuse</span>»</span> of creative material was within the control
11551 of businesses, perhaps it made sense to require lawyers to negotiate
11552 the lines. It no longer makes sense for lawyers to negotiate the
11553 lines. Think about all the creative possibilities that digital
11554 technologies enable; now imagine pouring molasses into the
11555 machines. That's what this general requirement of permission does to
11556 the creative process. Smothers it.
11557 </p><a class="indexterm" name="idp10556416"></a><p>
11558 This was the point that Alben made when describing the making of the
11559 Clint Eastwood CD. While it makes sense to require negotiation for
11560 foreseeable derivative rights&#8212;turning a book into a movie, or a
11561 poem into a musical score&#8212;it doesn't make sense to require
11562 negotiation for the unforeseeable. Here, a statutory right would make
11563 much more sense.
11564 </p><p>
11565 In each of these cases, the law should mark the uses that are
11566 protected, and the presumption should be that other uses are not
11567 protected.  This is the reverse of the recommendation of my colleague
11568 Paul Goldstein.<a href="#ftn.idp10558544" class="footnote" name="idp10558544"><sup class="footnote">[218]</sup></a>
11569 His view is that the law should be written so that
11570 expanded protections follow expanded uses.
11571 </p><p>
11572 Goldstein's analysis would make perfect sense if the cost of the legal
11573 system were small. But as we are currently seeing in the context of
11574 the Internet, the uncertainty about the scope of protection, and the
11575 incentives to protect existing architectures of revenue, combined with
11576 a strong copyright, weaken the process of innovation.
11577 </p><p>
11578 The law could remedy this problem either by removing protection
11579
11580 beyond the part explicitly drawn or by granting reuse rights upon
11581 certain statutory conditions. Either way, the effect would be to free
11582 a great deal of culture to others to cultivate. And under a statutory
11583 rights regime, that reuse would earn artists more income.
11584 </p></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="liberatemusic"></a>16.2.4. 4. Liberate the Music&#8212;Again</h3></div></div></div><p>
11585 The battle that got this whole war going was about music, so it
11586 wouldn't be fair to end this book without addressing the issue that
11587 is, to most people, most pressing&#8212;music. There is no other
11588 policy issue that better teaches the lessons of this book than the
11589 battles around the sharing of music.
11590 </p><p>
11591 The appeal of file-sharing music was the crack cocaine of the
11592 Internet's growth. It drove demand for access to the Internet more
11593 powerfully than any other single application. It was the Internet's
11594 killer app&#8212;possibly in two senses of that word. It no doubt was
11595 the application that drove demand for bandwidth. It may well be the
11596 application that drives demand for regulations that in the end kill
11597 innovation on the network.
11598 </p><p>
11599 The aim of copyright, with respect to content in general and music in
11600 particular, is to create the incentives for music to be composed,
11601 performed, and, most importantly, spread. The law does this by giving
11602 an exclusive right to a composer to control public performances of his
11603 work, and to a performing artist to control copies of her performance.
11604 </p><p>
11605 File-sharing networks complicate this model by enabling the spread of
11606 content for which the performer has not been paid. But of course,
11607 that's not all the file-sharing networks do. As I described in chapter
11608 <a class="xref" href="#piracy" title="Chapter 5. CHAPTER FIVE: «Piracy»">5</a>, they enable
11609 four different kinds of sharing:
11610 </p><div class="orderedlist"><ol class="orderedlist" type="A"><li class="listitem"><p>
11611
11612 There are some who are using sharing networks as substitutes
11613 for purchasing CDs.
11614 </p></li><li class="listitem"><p>
11615
11616 There are also some who are using sharing networks to sample,
11617 on the way to purchasing CDs.
11618 </p></li><li class="listitem"><p>
11619
11620
11621 There are many who are using file-sharing networks to get access to
11622 content that is no longer sold but is still under copyright or that
11623 would have been too cumbersome to buy off the Net.
11624 </p></li><li class="listitem"><p>
11625
11626 There are many who are using file-sharing networks to get access to
11627 content that is not copyrighted or to get access that the copyright
11628 owner plainly endorses.
11629 </p></li></ol></div><a class="indexterm" name="idp10573600"></a><a class="indexterm" name="idp10574672"></a><p>
11630 Any reform of the law needs to keep these different uses in focus. It
11631 must avoid burdening type D even if it aims to eliminate type A. The
11632 eagerness with which the law aims to eliminate type A, moreover,
11633 should depend upon the magnitude of type B. As with VCRs, if the net
11634 effect of sharing is actually not very harmful, the need for regulation is
11635 significantly weakened.
11636 </p><p>
11637 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
11638 controversial.  For the purposes of this chapter, however, I assume
11639 the harm is real. I assume, in other words, that type A sharing is
11640 significantly greater than type B, and is the dominant use of sharing
11641 networks.
11642 </p><p>
11643 Nonetheless, there is a crucial fact about the current technological
11644 context that we must keep in mind if we are to understand how the law
11645 should respond.
11646 </p><p>
11647 Today, file sharing is addictive. In ten years, it won't be. It is
11648 addictive today because it is the easiest way to gain access to a
11649 broad range of content.  It won't be the easiest way to get access to
11650 a broad range of content in ten years. Today, access to the Internet
11651 is cumbersome and slow&#8212;we in the United States are lucky to have
11652 broadband service at 1.5 MBs, and very rarely do we get service at
11653 that speed both up and down. Although wireless access is growing, most
11654 of us still get access across wires. Most only gain access through a
11655 machine with a keyboard. The idea of the always on, always connected
11656 Internet is mainly just an idea.
11657 </p><p>
11658 But it will become a reality, and that means the way we get access to
11659 the Internet today is a technology in transition. Policy makers should
11660 not make policy on the basis of technology in transition. They should
11661
11662 make policy on the basis of where the technology is going. The
11663 question should not be, how should the law regulate sharing in this
11664 world?  The question should be, what law will we require when the
11665 network becomes the network it is clearly becoming? That network is
11666 one in which every machine with electricity is essentially on the Net;
11667 where everywhere you are&#8212;except maybe the desert or the
11668 Rockies&#8212;you can instantaneously be connected to the
11669 Internet. Imagine the Internet as ubiquitous as the best cell-phone
11670 service, where with the flip of a device, you are connected.
11671 </p><a class="indexterm" name="idp10580240"></a><p>
11672 In that world, it will be extremely easy to connect to services that
11673 give you access to content on the fly&#8212;such as Internet radio,
11674 content that is streamed to the user when the user demands. Here,
11675 then, is the critical point: When it is <span class="emphasis"><em>extremely</em></span>
11676 easy to connect to services that give access to content, it will be
11677 <span class="emphasis"><em>easier</em></span> to connect to services that give you
11678 access to content than it will be to download and store content
11679 <span class="emphasis"><em>on the many devices you will have for playing
11680 content</em></span>. It will be easier, in other words, to subscribe
11681 than it will be to be a database manager, as everyone in the
11682 download-sharing world of Napster-like technologies essentially
11683 is. Content services will compete with content sharing, even if the
11684 services charge money for the content they give access to. Already
11685 cell-phone services in Japan offer music (for a fee) streamed over
11686 cell phones (enhanced with plugs for headphones). The Japanese are
11687 paying for this content even though <span class="quote">«<span class="quote">free</span>»</span> content is available in the
11688 form of MP3s across the Web.<a href="#ftn.idp10584752" class="footnote" name="idp10584752"><sup class="footnote">[219]</sup></a>
11689
11690 </p><p>
11691 This point about the future is meant to suggest a perspective on the
11692 present: It is emphatically temporary. The <span class="quote">«<span class="quote">problem</span>»</span> with file
11693 sharing&#8212;to the extent there is a real problem&#8212;is a problem
11694 that will increasingly disappear as it becomes easier to connect to
11695 the Internet.  And thus it is an extraordinary mistake for policy
11696 makers today to be <span class="quote">«<span class="quote">solving</span>»</span> this problem in light of a technology
11697 that will be gone tomorrow.  The question should not be how to
11698 regulate the Internet to eliminate file sharing (the Net will evolve
11699 that problem away). The question instead should be how to assure that
11700 artists get paid, during
11701
11702
11703 this transition between twentieth-century models for doing business
11704 and twenty-first-century technologies.
11705 </p><p>
11706 The answer begins with recognizing that there are different <span class="quote">«<span class="quote">problems</span>»</span>
11707 here to solve. Let's start with type D content&#8212;uncopyrighted
11708 content or copyrighted content that the artist wants shared. The
11709 <span class="quote">«<span class="quote">problem</span>»</span> with this content is to make sure that the technology that
11710 would enable this kind of sharing is not rendered illegal. You can
11711 think of it this way: Pay phones are used to deliver ransom demands,
11712 no doubt.  But there are many who need to use pay phones who have
11713 nothing to do with ransoms. It would be wrong to ban pay phones in
11714 order to eliminate kidnapping.
11715 </p><p>
11716 Type C content raises a different <span class="quote">«<span class="quote">problem.</span>»</span> This is content that was,
11717 at one time, published and is no longer available. It may be
11718 unavailable because the artist is no longer valuable enough for the
11719 record label he signed with to carry his work. Or it may be
11720 unavailable because the work is forgotten. Either way, the aim of the
11721 law should be to facilitate the access to this content, ideally in a
11722 way that returns something to the artist.
11723 </p><a class="indexterm" name="idp10592368"></a><a class="indexterm" name="idp10593472"></a><p>
11724 Again, the model here is the used book store. Once a book goes out of
11725 print, it may still be available in libraries and used book
11726 stores. But libraries and used book stores don't pay the copyright
11727 owner when someone reads or buys an out-of-print book. That makes
11728 total sense, of course, since any other system would be so burdensome
11729 as to eliminate the possibility of used book stores' existing. But
11730 from the author's perspective, this <span class="quote">«<span class="quote">sharing</span>»</span> of his content without
11731 his being compensated is less than ideal.
11732 </p><p>
11733 The model of used book stores suggests that the law could simply deem
11734 out-of-print music fair game. If the publisher does not make copies of
11735 the music available for sale, then commercial and noncommercial
11736 providers would be free, under this rule, to <span class="quote">«<span class="quote">share</span>»</span> that content,
11737 even though the sharing involved making a copy. The copy here would be
11738 incidental to the trade; in a context where commercial publishing has
11739 ended, trading music should be as free as trading books.
11740 </p><p>
11741
11742
11743 Alternatively, the law could create a statutory license that would
11744 ensure that artists get something from the trade of their work. For
11745 example, if the law set a low statutory rate for the commercial
11746 sharing of content that was not offered for sale by a commercial
11747 publisher, and if that rate were automatically transferred to a trust
11748 for the benefit of the artist, then businesses could develop around
11749 the idea of trading this content, and artists would benefit from this
11750 trade.
11751 </p><p>
11752 This system would also create an incentive for publishers to keep
11753 works available commercially. Works that are available commercially
11754 would not be subject to this license. Thus, publishers could protect
11755 the right to charge whatever they want for content if they kept the
11756 work commercially available. But if they don't keep it available, and
11757 instead, the computer hard disks of fans around the world keep it
11758 alive, then any royalty owed for such copying should be much less than
11759 the amount owed a commercial publisher.
11760 </p><p>
11761 The hard case is content of types A and B, and again, this case is
11762 hard only because the extent of the problem will change over time, as
11763 the technologies for gaining access to content change. The law's
11764 solution should be as flexible as the problem is, understanding that
11765 we are in the middle of a radical transformation in the technology for
11766 delivering and accessing content.
11767 </p><p>
11768 So here's a solution that will at first seem very strange to both sides
11769 in this war, but which upon reflection, I suggest, should make some sense.
11770 </p><p>
11771 Stripped of the rhetoric about the sanctity of property, the basic
11772 claim of the content industry is this: A new technology (the Internet)
11773 has harmed a set of rights that secure copyright. If those rights are to
11774 be protected, then the content industry should be compensated for that
11775 harm. Just as the technology of tobacco harmed the health of millions
11776 of Americans, or the technology of asbestos caused grave illness to
11777 thousands of miners, so, too, has the technology of digital networks
11778 harmed the interests of the content industry.
11779 </p><p>
11780
11781 I love the Internet, and so I don't like likening it to tobacco or
11782 asbestos.  But the analogy is a fair one from the perspective of the
11783 law.  And it suggests a fair response: Rather than seeking to destroy
11784 the Internet, or the p2p technologies that are currently harming
11785 content providers on the Internet, we should find a relatively simple
11786 way to compensate those who are harmed.
11787 </p><a class="indexterm" name="idxpromisestokeepfisher"></a><p>
11788 The idea would be a modification of a proposal that has been
11789 floated by Harvard law professor William Fisher.<a href="#ftn.idp10605120" class="footnote" name="idp10605120"><sup class="footnote">[220]</sup></a>
11790 Fisher suggests a very clever way around the current impasse of the
11791 Internet. Under his plan, all content capable of digital transmission
11792 would (1) be marked with a digital watermark (don't worry about how
11793 easy it is to evade these marks; as you'll see, there's no incentive
11794 to evade them). Once the content is marked, then entrepreneurs would
11795 develop (2) systems to monitor how many items of each content were
11796 distributed. On the basis of those numbers, then (3) artists would be
11797 compensated. The compensation would be paid for by (4) an appropriate
11798 tax.
11799 </p><p>
11800 Fisher's proposal is careful and comprehensive. It raises a million
11801 questions, most of which he answers well in his upcoming book,
11802 <em class="citetitle">Promises to Keep</em>. The modification that I would make is relatively
11803 simple: Fisher imagines his proposal replacing the existing copyright
11804 system.  I imagine it complementing the existing system. The aim of
11805 the proposal would be to facilitate compensation to the extent that
11806 harm could be shown. This compensation would be temporary, aimed at
11807 facilitating a transition between regimes. And it would require
11808 renewal after a period of years. If it continues to make sense to
11809 facilitate free exchange of content, supported through a taxation
11810 system, then it can be continued. If this form of protection is no
11811 longer necessary, then the system could lapse into the old system of
11812 controlling access.
11813 </p><a class="indexterm" name="idp10626240"></a><a class="indexterm" name="idp10627488"></a><p>
11814 Fisher would balk at the idea of allowing the system to lapse. His aim
11815 is not just to ensure that artists are paid, but also to ensure that
11816 the system supports the widest range of <span class="quote">«<span class="quote">semiotic democracy</span>»</span>
11817 possible. But the aims of semiotic democracy would be satisfied if the
11818 other changes I described were accomplished&#8212;in particular, the
11819 limits on derivative
11820
11821
11822 uses. A system that simply charges for access would not greatly burden
11823 semiotic democracy if there were few limitations on what one was
11824 allowed to do with the content itself.
11825 </p><a class="indexterm" name="idp10630288"></a><a class="indexterm" name="idp10631072"></a><a class="indexterm" name="idp10631888"></a><a class="indexterm" name="idp10632704"></a><p>
11826 No doubt it would be difficult to calculate the proper measure of
11827 <span class="quote">«<span class="quote">harm</span>»</span> to an industry. But the difficulty of making that calculation
11828 would be outweighed by the benefit of facilitating innovation. This
11829 background system to compensate would also not need to interfere with
11830 innovative proposals such as Apple's MusicStore. As experts predicted
11831 when Apple launched the MusicStore, it could beat <span class="quote">«<span class="quote">free</span>»</span> by being
11832 easier than free is. This has proven correct: Apple has sold millions
11833 of songs at even the very high price of 99 cents a song. (At 99 cents,
11834 the cost is the equivalent of a per-song CD price, though the labels
11835 have none of the costs of a CD to pay.) Apple's move was countered by
11836 Real Networks, offering music at just 79 cents a song. And no doubt
11837 there will be a great deal of competition to offer and sell music
11838 on-line.
11839 </p><a class="indexterm" name="idp10635856"></a><a class="indexterm" name="idp10636672"></a><a class="indexterm" name="idp10637776"></a><a class="indexterm" name="idp10638608"></a><a class="indexterm" name="idp10639712"></a><p>
11840 This competition has already occurred against the background of <span class="quote">«<span class="quote">free</span>»</span>
11841 music from p2p systems. As the sellers of cable television have known
11842 for thirty years, and the sellers of bottled water for much more than
11843 that, there is nothing impossible at all about <span class="quote">«<span class="quote">competing with free.</span>»</span>
11844 Indeed, if anything, the competition spurs the competitors to offer
11845 new and better products. This is precisely what the competitive market
11846 was to be about. Thus in Singapore, though piracy is rampant, movie
11847 theaters are often luxurious&#8212;with <span class="quote">«<span class="quote">first class</span>»</span> seats, and meals
11848 served while you watch a movie&#8212;as they struggle and succeed in
11849 finding ways to compete with <span class="quote">«<span class="quote">free.</span>»</span>
11850 </p><p>
11851 This regime of competition, with a backstop to assure that artists
11852 don't lose, would facilitate a great deal of innovation in the
11853 delivery of content. That competition would continue to shrink type A
11854 sharing. It would inspire an extraordinary range of new
11855 innovators&#8212;ones who would have a right to the content, and would
11856 no longer fear the uncertain and barbarically severe punishments of
11857 the law.
11858 </p><p>
11859 In summary, then, my proposal is this:
11860 </p><p>
11861
11862
11863 The Internet is in transition. We should not be regulating a
11864 technology in transition. We should instead be regulating to minimize
11865 the harm to interests affected by this technological change, while
11866 enabling, and encouraging, the most efficient technology we can
11867 create.
11868 </p><p>
11869 We can minimize that harm while maximizing the benefit to innovation
11870 by
11871 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><p>
11872
11873 guaranteeing the right to engage in type D sharing;
11874 </p></li><li class="listitem"><p>
11875
11876 permitting noncommercial type C sharing without liability,
11877 and commercial type C sharing at a low and fixed rate set by
11878 statute;
11879 </p></li><li class="listitem"><p>
11880
11881 while in this transition, taxing and compensating for type A
11882 sharing, to the extent actual harm is demonstrated.
11883 </p></li></ol></div><p>
11884 But what if <span class="quote">«<span class="quote">piracy</span>»</span> doesn't disappear? What if there is a competitive
11885 market providing content at a low cost, but a significant number of
11886 consumers continue to <span class="quote">«<span class="quote">take</span>»</span> content for nothing? Should the law do
11887 something then?
11888 </p><p>
11889 Yes, it should. But, again, what it should do depends upon how the
11890 facts develop. These changes may not eliminate type A sharing. But the
11891 real issue is not whether it eliminates sharing in the abstract.  The
11892 real issue is its effect on the market. Is it better (a) to have a
11893 technology that is 95 percent secure and produces a market of size <em class="citetitle">x</em>,
11894 or (b) to have a technology that is 50 percent secure but produces a
11895 market of five times <em class="citetitle">x</em>? Less secure might produce more unauthorized
11896 sharing, but it is likely to also produce a much bigger market in
11897 authorized sharing. The most important thing is to assure artists'
11898 compensation without breaking the Internet. Once that's assured, then
11899 it may well be appropriate to find ways to track down the petty
11900 pirates.
11901 </p><p>
11902 But we're a long way away from whittling the problem down to this
11903 subset of type A sharers. And our focus until we're there should not
11904 be on finding ways to break the Internet. Our focus until we're there
11905
11906
11907 should be on how to make sure the artists are paid, while protecting
11908 the space for innovation and creativity that the Internet is.
11909 </p></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="firelawyers"></a>16.2.5. 5. Fire Lots of Lawyers</h3></div></div></div><p>
11910 I'm a lawyer. I make lawyers for a living. I believe in the law. I believe
11911 in the law of copyright. Indeed, I have devoted my life to working in
11912 law, not because there are big bucks at the end but because there are
11913 ideals at the end that I would love to live.
11914 </p><p>
11915 Yet much of this book has been a criticism of lawyers, or the role
11916 lawyers have played in this debate. The law speaks to ideals, but it
11917 is my view that our profession has become too attuned to the
11918 client. And in a world where the rich clients have one strong view,
11919 the unwillingness of the profession to question or counter that one
11920 strong view queers the law.
11921 </p><a class="indexterm" name="idp10657536"></a><a class="indexterm" name="idp10658352"></a><p>
11922 The evidence of this bending is compelling. I'm attacked as a
11923 <span class="quote">«<span class="quote">radical</span>»</span> by many within the profession, yet the positions that I am
11924 advocating are precisely the positions of some of the most moderate
11925 and significant figures in the history of this branch of the
11926 law. Many, for example, thought crazy the challenge that we brought to
11927 the Copyright Term Extension Act. Yet just thirty years ago, the
11928 dominant scholar and practitioner in the field of copyright, Melville
11929 Nimmer, thought it obvious.<a href="#ftn.idp10660688" class="footnote" name="idp10660688"><sup class="footnote">[221]</sup></a>
11930
11931 </p><p>
11932 However, my criticism of the role that lawyers have played in this
11933 debate is not just about a professional bias. It is more importantly
11934 about our failure to actually reckon the costs of the law.
11935 </p><p>
11936 Economists are supposed to be good at reckoning costs and benefits.
11937 But more often than not, economists, with no clue about how the legal
11938 system actually functions, simply assume that the transaction costs of
11939 the legal system are slight.<a href="#ftn.idp10663808" class="footnote" name="idp10663808"><sup class="footnote">[222]</sup></a>
11940 They see a system that has been around for hundreds of years, and they
11941 assume it works the way their elementary school civics class taught
11942 them it works.
11943 </p><p>
11944
11945 But the legal system doesn't work. Or more accurately, it doesn't work
11946 for anyone except those with the most resources. Not because the
11947 system is corrupt. I don't think our legal system (at the federal
11948 level, at least) is at all corrupt. I mean simply because the costs of
11949 our legal system are so astonishingly high that justice can
11950 practically never be done.
11951 </p><p>
11952 These costs distort free culture in many ways. A lawyer's time is
11953 billed at the largest firms at more than $400 per hour. How much time
11954 should such a lawyer spend reading cases carefully, or researching
11955 obscure strands of authority? The answer is the increasing reality:
11956 very little.  The law depended upon the careful articulation and
11957 development of doctrine, but the careful articulation and development
11958 of legal doctrine depends upon careful work. Yet that careful work
11959 costs too much, except in the most high-profile and costly cases.
11960 </p><p>
11961 The costliness and clumsiness and randomness of this system mock
11962 our tradition. And lawyers, as well as academics, should consider it
11963 their duty to change the way the law works&#8212;or better, to change the
11964 law so that it works. It is wrong that the system works well only for the
11965 top 1 percent of the clients. It could be made radically more efficient,
11966 and inexpensive, and hence radically more just.
11967 </p><p>
11968 But until that reform is complete, we as a society should keep the law
11969 away from areas that we know it will only harm. And that is precisely
11970 what the law will too often do if too much of our culture is left to
11971 its review.
11972 </p><a class="indexterm" name="idp10672704"></a><p>
11973 Think about the amazing things your kid could do or make with digital
11974 technology&#8212;the film, the music, the Web page, the blog. Or think
11975 about the amazing things your community could facilitate with digital
11976 technology&#8212;a wiki, a barn raising, activism to change something.
11977 Think about all those creative things, and then imagine cold molasses
11978 poured onto the machines. This is what any regime that requires
11979 permission produces. Again, this is the reality of Brezhnev's Russia.
11980 </p><p>
11981 The law should regulate in certain areas of culture&#8212;but it should
11982 regulate culture only where that regulation does good. Yet lawyers
11983
11984
11985 rarely test their power, or the power they promote, against this
11986 simple pragmatic question: <span class="quote">«<span class="quote">Will it do good?</span>»</span> When challenged about
11987 the expanding reach of the law, the lawyer answers, <span class="quote">«<span class="quote">Why not?</span>»</span>
11988 </p><p>
11989 We should ask, <span class="quote">«<span class="quote">Why?</span>»</span> Show me why your regulation of culture is
11990 needed. Show me how it does good. And until you can show me both,
11991 keep your lawyers away.
11992 </p></div></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp10385952" class="footnote"><p><a href="#idp10385952" class="para"><sup class="para">[210] </sup></a>
11993
11994
11995 See, for example, Marc Rotenberg, <span class="quote">«<span class="quote">Fair Information Practices and the
11996 Architecture of Privacy (What Larry Doesn't Get),</span>»</span> <em class="citetitle">Stanford Technology
11997 Law Review</em> 1 (2001): par. 6&#8211;18, available at
11998
11999 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #72</a>
12000 (describing examples in which technology defines privacy policy). See
12001 also Jeffrey Rosen, <em class="citetitle">The Naked Crowd: Reclaiming Security and Freedom
12002 in an Anxious Age</em> (New York: Random House, 2004) (mapping tradeoffs
12003 between technology and privacy).</p></div><div id="ftn.idp10473952" class="footnote"><p><a href="#idp10473952" class="para"><sup class="para">[211] </sup></a>
12004
12005 <em class="citetitle">Willful Infringement: A Report from the Front Lines of the Real
12006 Culture Wars</em> (2003), produced by Jed Horovitz, directed by Greg
12007 Hittelman, a Fiat Lucre production, available at
12008 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #72</a>.
12009 </p></div><div id="ftn.idp10495024" class="footnote"><p><a href="#idp10495024" class="para"><sup class="para">[212] </sup></a>
12010
12011 The proposal I am advancing here would apply to American works only.
12012 Obviously, I believe it would be beneficial for the same idea to be
12013 adopted by other countries as well.</p></div><div id="ftn.idp10506288" class="footnote"><p><a href="#idp10506288" class="para"><sup class="para">[213] </sup></a>
12014
12015 There would be a complication with derivative works that I have not
12016 solved here. In my view, the law of derivatives creates a more complicated
12017 system than is justified by the marginal incentive it creates.
12018 </p></div><div id="ftn.idp10519488" class="footnote"><p><a href="#idp10519488" class="para"><sup class="para">[214] </sup></a>
12019
12020
12021 <span class="quote">«<span class="quote">A Radical Rethink,</span>»</span> <em class="citetitle">Economist</em>, 366:8308 (25 January 2003): 15,
12022 available at
12023 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #74</a>.
12024 </p></div><div id="ftn.idp10532528" class="footnote"><p><a href="#idp10532528" class="para"><sup class="para">[215] </sup></a>
12025
12026 Department of Veterans Affairs, Veteran's Application for Compensation
12027 and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001),
12028 available at
12029 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #75</a>.
12030 </p></div><div id="ftn.idp10547824" class="footnote"><p><a href="#idp10547824" class="para"><sup class="para">[216] </sup></a>
12031
12032 Benjamin Kaplan, <em class="citetitle">An Unhurried View of Copyright</em> (New York: Columbia
12033 University Press, 1967), 32.
12034 </p></div><div id="ftn.idp10550272" class="footnote"><p><a href="#idp10550272" class="para"><sup class="para">[217] </sup></a>
12035  Ibid., 56.
12036 </p></div><div id="ftn.idp10558544" class="footnote"><p><a href="#idp10558544" class="para"><sup class="para">[218] </sup></a>
12037
12038 Paul Goldstein, <em class="citetitle">Copyright's Highway: From Gutenberg to the Celestial
12039 Jukebox</em> (Stanford: Stanford University Press, 2003), 187&#8211;216.
12040 <a class="indexterm" name="idp10387648"></a>
12041 </p></div><div id="ftn.idp10584752" class="footnote"><p><a href="#idp10584752" class="para"><sup class="para">[219] </sup></a>
12042
12043 See, for example, <span class="quote">«<span class="quote">Music Media Watch,</span>»</span> The J@pan Inc. Newsletter, 3
12044 April 2002, available at
12045 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #76</a>.
12046 </p></div><div id="ftn.idp10605120" class="footnote"><p><a href="#idp10605120" class="para"><sup class="para">[220] </sup></a>
12047
12048 <a class="indexterm" name="idxartistspayments3"></a>
12049 William Fisher, <em class="citetitle">Digital Music: Problems and Possibilities</em> (last
12050 revised: 10 October 2000), available at
12051 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #77</a>; William
12052 Fisher, <em class="citetitle">Promises to Keep: Technology, Law, and the Future of
12053 Entertainment</em> (forthcoming) (Stanford: Stanford University Press,
12054 2004), ch. 6, available at
12055 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #78</a>. Professor
12056 Netanel has proposed a related idea that would exempt noncommercial
12057 sharing from the reach of copyright and would establish compensation
12058 to artists to balance any loss. See Neil Weinstock Netanel, <span class="quote">«<span class="quote">Impose a
12059 Noncommercial Use Levy to Allow Free P2P File Sharing,</span>»</span> available at
12060 <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
12061 Broadband?</span>»</span> <em class="citetitle">Washington Post</em>, 8 January 2002, A17; Philip S. Corwin on
12062 behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr.,
12063 Chairman of the Senate Foreign Relations Committee, 26 February 2002,
12064 available at
12065 <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
12066 Use Fee (IPUF)</em>, 3 March 2002, available at
12067 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #81</a>; Jefferson Graham,
12068 <span class="quote">«<span class="quote">Kazaa, Verizon Propose to Pay Artists Directly,</span>»</span> <em class="citetitle">USA Today</em>, 13 May
12069 2002, available at
12070 <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>
12071 IEEE Spectrum Online, 1 July 2002, available at
12072 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #83</a>; Declan
12073 McCullagh, <span class="quote">«<span class="quote">Verizon's Copyright Campaign,</span>»</span> CNET News.com, 27 August
12074 2002, available at
12075 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #84</a>.
12076 Fisher's proposal is very similar to Richard Stallman's proposal for
12077 DAT. Unlike Fisher's, Stallman's proposal would not pay artists directly
12078 proportionally, though more popular artists would get more than the less
12079 popular. As is typical with Stallman, his proposal predates the current
12080 debate by about a decade. See
12081 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #85</a>.
12082 <a class="indexterm" name="idp10620000"></a>
12083 <a class="indexterm" name="idp10620816"></a>
12084 <a class="indexterm" name="idp10621632"></a>
12085 <a class="indexterm" name="idp10622464"></a>
12086 </p></div><div id="ftn.idp10660688" class="footnote"><p><a href="#idp10660688" class="para"><sup class="para">[221] </sup></a>
12087
12088 Lawrence Lessig, <span class="quote">«<span class="quote">Copyright's First Amendment</span>»</span> (Melville B. Nimmer
12089 Memorial Lecture), <em class="citetitle">UCLA Law Review</em> 48 (2001): 1057, 1069&#8211;70.
12090 </p></div><div id="ftn.idp10663808" class="footnote"><p><a href="#idp10663808" class="para"><sup class="para">[222] </sup></a>
12091
12092 A good example is the work of Professor Stan Liebowitz. Liebowitz is
12093 to be commended for his careful review of data about infringement,
12094 leading him to question his own publicly stated
12095 position&#8212;twice. He initially predicted that downloading would
12096 substantially harm the industry. He then revised his view in light of
12097 the data, and he has since revised his view again.  Compare Stan
12098 J. Liebowitz, <em class="citetitle">Rethinking the Network Economy: The True Forces That
12099 Drive the Digital Marketplace</em> (New York: Amacom, 2002), (reviewing his
12100 original view but expressing skepticism) with Stan J.  Liebowitz,
12101 <span class="quote">«<span class="quote">Will MP3s Annihilate the Record Industry?</span>»</span> working paper, June 2003,
12102 available at
12103 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #86</a>.
12104 Liebowitz's careful analysis is extremely valuable in estimating the
12105 effect of file-sharing technology. In my view, however, he
12106 underestimates the costs of the legal system. See, for example,
12107 <em class="citetitle">Rethinking</em>, 174&#8211;76.
12108 <a class="indexterm" name="idp10662368"></a>
12109 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-notes"></a>Chapter 17. NOTES</h1></div></div></div><p>
12110 Throughout this text, there are references to links on the World Wide
12111 Web. As anyone who has tried to use the Web knows, these links can be
12112 highly unstable. I have tried to remedy the instability by redirecting
12113 readers to the original source through the Web site associated with
12114 this book. For each link below, you can go to
12115 http://free-culture.cc/notes and locate the original source by
12116 clicking on the number after the # sign. If the original link remains
12117 alive, you will be redirected to that link. If the original link has
12118 disappeared, you will be redirected to an appropriate reference for
12119 the material.
12120 </p></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-acknowledgments"></a>Chapter 18. ACKNOWLEDGMENTS</h1></div></div></div><p>
12121 This book is the product of a long and as yet unsuccessful struggle that
12122 began when I read of Eric Eldred's war to keep books free. Eldred's
12123 work helped launch a movement, the free culture movement, and it is
12124 to him that this book is dedicated.
12125 </p><a class="indexterm" name="idp10683440"></a><p>
12126 I received guidance in various places from friends and academics,
12127 including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner,
12128 Mark Rose, and Kathleen Sullivan. And I received correction and
12129 guidance from many amazing students at Stanford Law School and
12130 Stanford University. They included Andrew B. Coan, John Eden, James
12131 P. Fellers, Christopher Guzelian, Erica Goldberg, Robert Hallman,
12132 Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, Alina Ng, and
12133 Erica Platt. I am particularly grateful to Catherine Crump and Harry
12134 Surden, who helped direct their research, and to Laura Lynch, who
12135 brilliantly managed the army that they assembled, and provided her own
12136 critical eye on much of this.
12137 </p><p>
12138 Yuko Noguchi helped me to understand the laws of Japan as well as
12139 its culture. I am thankful to her, and to the many in Japan who helped
12140 me prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki,
12141 Michihiro Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro
12142
12143 Yonezawa. I am thankful as well as to Professor Nobuhiro Nakayama,
12144 and the Tokyo University Business Law Center, for giving me the
12145 chance to spend time in Japan, and to Tadashi Shiraishi and Kiyokazu
12146 Yamagami for their generous help while I was there.
12147 </p><p>
12148 These are the traditional sorts of help that academics regularly draw
12149 upon. But in addition to them, the Internet has made it possible to
12150 receive advice and correction from many whom I have never even
12151 met. Among those who have responded with extremely helpful advice to
12152 requests on my blog about the book are Dr. Mohammad Al-Ubaydli, David
12153 Gerstein, and Peter DiMauro, as well as a long list of those who had
12154 specific ideas about ways to develop my argument. They included
12155 Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob Devine,
12156 Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy Hunsinger,
12157 Vaughn Iverson, John Karabaic, Jeff Keltner, James Lindenschmidt,
12158 K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan
12159 McMullen, Fred Norton, John Pormann, Pedro A. D.  Rezende, Shabbir
12160 Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker,
12161 Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt
12162 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>
12163 and Richard Yanco. (I apologize if I have missed anyone; with
12164 computers come glitches, and a crash of my e-mail system meant I lost
12165 a bunch of great replies.)
12166 </p><p>
12167 Richard Stallman and Michael Carroll each read the whole book in
12168 draft, and each provided extremely helpful correction and advice.
12169 Michael helped me to see more clearly the significance of the
12170 regulation of derivitive works. And Richard corrected an
12171 embarrassingly large number of errors. While my work is in part
12172 inspired by Stallman's, he does not agree with me in important places
12173 throughout this book.
12174 </p><p>
12175 Finally, and forever, I am thankful to Bettina, who has always
12176 insisted that there would be unending happiness away from these
12177 battles, and who has always been right. This slow learner is, as ever,
12178 grateful for her perpetual patience and love.
12179 </p></div><div class="index"><div class="titlepage"><div><div><h1 class="title"><a name="idp10690928"></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="#idp6941376">«PIRACY»</a></dt><dt>Asia, commercial piracy in, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>AT&amp;T, <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>Ayer, Don, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>, <a class="indexterm" href="#eldred-ii">CHAPTER FOURTEEN: Eldred II</a></dt></dl></div><div class="indexdiv"><h3>B</h3><dl><dt>Bacon, Francis, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Barish, Stephanie, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Barlow, Joel, <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>Barnes &amp; Noble, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Barry, Hank, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>BBC, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Beatles, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Beckett, Thomas, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Bell, Alexander Graham, <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>Berlin Act (1908), <a class="indexterm" href="#eldred-ii">CHAPTER FOURTEEN: Eldred II</a></dt><dt>Berman, Howard L., <a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Berne Convention (1908), <a class="indexterm" href="#eldred-ii">CHAPTER FOURTEEN: Eldred II</a></dt><dt>Bernstein, Leonard, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Betamax, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>biomedical research, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Black, Jane, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>blogs (Web-logs), <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>BMG, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>BMW, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Boies, David, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt><dt>Boland, Lois, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Bolling, Ruben, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Bono, Mary, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Bono, Sonny, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>books</dt><dd><dl><dt>English copyright law developed for, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>free on-line releases of, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a>-<a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>on Internet, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>out of print, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>resales of, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>three types of uses of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>total number of, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt></dl></dd><dt>booksellers, English, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Boswell, James, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>bots, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Boyle, James, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Braithwaite, John, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Branagh, Kenneth, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Brandeis, Louis D., <a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Brazil, free culture in, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Breyer, Stephen, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Brezhnev, Leonid, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt><dt>British Parliament, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>broadcast flag, <a class="indexterm" href="#film">Film</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Bromberg, Dan, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Brown, John Seely, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>browsing, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Buchanan, James, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Bunyan, John, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Burdick, Quentin, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>Bush, George W., <a class="indexterm" href="#constrain">Constraining Creators</a></dt></dl></div><div class="indexdiv"><h3>C</h3><dl><dt>cable television, <a class="indexterm" href="#cabletv">Cable TV</a>-<a class="indexterm" href="#cabletv">Cable TV</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>camera technology, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Camp Chaos, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt><dt>CARP (Copyright Arbitration Royalty Panel), <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>cars, MP3 sound systems in, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Carson, Rachel, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>cartoon films, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>Casablanca, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>cassette recording, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dd><dl><dt>VCRs, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt></dl></dd><dt>Causby, Thomas Lee, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#harms">CHAPTER TWELVE: Harms</a>, <a class="indexterm" href="#eldred-ii">CHAPTER FOURTEEN: Eldred II</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Causby, Tinie, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#harms">CHAPTER TWELVE: Harms</a>, <a class="indexterm" href="#eldred-ii">CHAPTER FOURTEEN: Eldred II</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>CBS, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>CD-ROMs, film clips used in, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a>-<a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt><dt>CDs</dt><dd><dl><dt>copyright marking of, <a class="indexterm" href="#marking">MARKING</a></dt><dt>foreign piracy of, <a class="indexterm" href="#piracy-i">Piracy I</a>-<a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>mix technology and, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a>-<a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>preference data on, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>prices of, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>sales levels of, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a></dt></dl></dd><dt>cell phones, music streamed over, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>chimeras, <a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a>-<a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a></dt><dt>Christensen, Clayton M., <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Clark, Kim B., <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>CNN, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Coase, Ronald, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>CodePink Women in Peace, <a class="indexterm" href="#preface">PREFACE</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Coe, Brian, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Comcast, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>comics, Japanese, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>Commerce, U.S. Department of, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>commercials, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>-<a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>common law, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Commons, John R., <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>composer's rights vs. producers' rights in, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>composers, copyright protections of, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>compulsory license, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>computer games, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Conger, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Congress, U.S.</dt><dd><dl><dt>constitutional powers of, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>copyright terms extended by, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>in constitutional Progress Clause, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>on copyright laws, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>on radio, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>on recording industry, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>on VCR technology, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt></dl></dd><dt>Conrad, Paul, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Constitution, U.S.</dt><dd><dl><dt>Commerce Clause of, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>copyright purpose established in, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>First Amendment to, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>on creative property, <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>Progress Clause of, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>structural checks and balances of, <a class="indexterm" href="#beginnings">Beginnings</a></dt></dl></dd><dt>Conyers, John, Jr., <a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a></dt><dt>cookies, Internet, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>copyleft licenses, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>copyright</dt><dd><dl><dt>as narrow monopoly right, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>constitutional purpose of, <a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>duration of, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>, <a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>four regulatory modalities on, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>in perpetuity, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>marking of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>of natural authors vs. corporations, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>renewability of, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>scope of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>usage restrictions attached to, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>Copyright Act (1790), <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>copyright infringement lawsuits</dt><dd><dl><dt>against student file sharing, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>commercial creativity as primary purpose of, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>distribution technology targeted in, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>exaggerated claims of, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>, <a class="indexterm" href="#constrain">Constraining Creators</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>in recording industry, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>, <a class="indexterm" href="#constrain">Constraining Creators</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>individual defendants intimidated by, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>statutory damages of, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>willful infringement findings in, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>copyright law</dt><dd><dl><dt>as ex post regulation modality, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>-<a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>as protection of creators, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>copies as core issue of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>creativity impeded by, <a class="indexterm" href="#idp6941376">«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="#idp6941376">«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="#idp6941376">«PIRACY»</a>-<a class="indexterm" href="#idp6941376">«PIRACY»</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>registration requirement of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>scope of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>statutory licenses in, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>technology as automatic enforcer of, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>term extensions in, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt></dl></dd><dt>corporations</dt><dd><dl><dt>copyright terms for, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>in pharmaceutical industry, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt></dl></dd><dt>Country of the Blind, The (Wells), <a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a>-<a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a></dt><dt>Court of Appeals</dt><dd><dl><dt>Ninth Circuit, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt></dl></dd><dt>cover songs, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Creative Commons, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a>-<a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>creative property</dt><dd><dl><dt>common law protections of, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>constitutional tradition on, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>if value, then right theory of, <a class="indexterm" href="#idp6941376">«PIRACY»</a>-<a class="indexterm" href="#idp6941376">«PIRACY»</a></dt><dt>other property rights vs., <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>creativity</dt><dd><dl><dt>by transforming previous works, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>legal restrictions on, <a class="indexterm" href="#idp6941376">«PIRACY»</a>-<a class="indexterm" href="#idp6941376">«PIRACY»</a></dt></dl></dd><dt>Crichton, Michael, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Crosskey, William W., <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>culture</dt><dd><dl><dt>commercial vs. noncommercial, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt></dl></dd></dl></div><div class="indexdiv"><h3>D</h3><dl><dt>Daguerre, Louis, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Daley, Elizabeth, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Data General, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Day After Trinity, The, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>DDT, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Dean, Howard, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>democracy</dt><dd><dl><dt>in technologies of expression, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>public discourse in, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt></dl></dd><dt>derivative works</dt><dd><dl><dt>fair use vs., <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>historical shift in copyright coverage of, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>piracy vs., <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>technological developments and, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>developing countries, foreign patent costs in, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>digital cameras, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Digital Copyright (Litman), <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Diller, Barry, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Disney, Inc., <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Disney, Walt, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Doctorow, Cory, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>doctors malpractice claims against, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>documentary film, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Donaldson v. Beckett, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Donaldson, Alexander, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Douglas, William O., <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>doujinshi comics, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>Down and Out in the Magic Kingdom (Doctorow), <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Drahos, Peter, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Dreyfuss, Rochelle, <a class="indexterm" href="#idp6941376">«PIRACY»</a></dt><dt>driving speed, constraints on, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>-<a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>Drucker, Peter, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt><dt>drugs</dt><dd><dl><dt>pharmaceutical, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt></dl></dd><dt>Dryden, John, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Duck and Cover film, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>Dylan, Bob, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt></dl></div><div class="indexdiv"><h3>E</h3><dl><dt>e-books, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>e-mail, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Eagle Forum, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Eastman, George, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Edison, Thomas, <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>education</dt><dd><dl><dt>in media literacy, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>tinkering as means of, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt></dl></dd><dt>Eldred, Eric, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>elections, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>electoral college, <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>Electronic Frontier Foundation, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Else, Jon, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>EMI, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>England, copyright laws developed in, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Enlightenment, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>environmentalism, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>ephemeral films, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>Errors and Omissions insurance, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Erskine, Andrew, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>expression, technologies of</dt><dd><dl><dt>democratic, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>media literacy and, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt></dl></dd></dl></div><div class="indexdiv"><h3>F</h3><dl><dt>fair use, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dd><dl><dt>in documentary film, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Internet burdens on, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>legal intimidation tactics against, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>Fallows, James, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Fanning, Shawn, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Faraday, Michael, <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>farming, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>FCC</dt><dd><dl><dt>on FM radio, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt></dl></dd><dt>feudal system, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>film industry</dt><dd><dl><dt>luxury theatres vs. video piracy in, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>trailer advertisements of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>films</dt><dd><dl><dt>animated, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>archive of, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>fair use of copyrighted material in, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>multiple copyrights associated with, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt></dl></dd><dt>First Amendment, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>first-sale doctrine, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Fisher, William, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>Florida, Richard, <a class="indexterm" href="#idp6941376">«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="#idp6941376">«PIRACY»</a></dt><dt>Global Positioning System, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>GNU/Linux operating system, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Goldstein, Paul, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Google, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>GPL (General Public License), <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Gracie Films, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Grimm fairy tales, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Grisham, John, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Groening, Matt, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Grokster, Ltd., <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></div><div class="indexdiv"><h3>H</h3><dl><dt>hacks, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Hal Roach Studios, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Hand, Learned, <a class="indexterm" href="#radio">Radio</a></dt><dt>handguns, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Hawthorne, Nathaniel, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Henry V, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Henry VIII, King of England, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Herrera, Rebecca, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Heston, Charlton, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>history, records of, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>HIV/AIDS therapies, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Hollings, Fritz, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>House of Lords, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Hummer Winblad, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Hummer, John, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Hyde, Rosel H., <a class="indexterm" href="#cabletv">Cable TV</a></dt></dl></div><div class="indexdiv"><h3>I</h3><dl><dt>IBM, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>if value, then right theory, <a class="indexterm" href="#idp6941376">«PIRACY»</a>-<a class="indexterm" href="#idp6941376">«PIRACY»</a>, <a class="indexterm" href="#pirates">CHAPTER FOUR: «Pirates»</a></dt><dt>images, ownership of, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>innovation, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dd><dl><dt>industry establishment opposed to, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>insecticide, environmental consequences of, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Intel, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>intellectual property rights, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dd><dl><dt>international organization on issues of, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>of drug patents, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt></dl></dd><dt>international law, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Internet</dt><dd><dl><dt>blogs on, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>books on, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>copyright applicability altered by technology of, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>copyright regulatory balance lost with, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>development of, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>, <a class="indexterm" href="#usnow">US, NOW</a>-<a class="indexterm" href="#usnow">US, NOW</a></dt><dt> efficient content distribution on, <a class="indexterm" href="#idp6941376">«PIRACY»</a></dt><dt>initial free character of, <a class="indexterm" href="#usnow">US, NOW</a>-<a class="indexterm" href="#usnow">US, NOW</a></dt><dt>news events on, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>peer-generated rankings on, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>privacy protection on, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>public discourse conducted on, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>radio on, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>search engines used on, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt></dl></dd><dt>Internet Archive, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>Internet Explorer, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>Iraq war, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>ISPs (Internet service providers), user identities revealed by, <a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a>, <a class="indexterm" href="#constrain">Constraining Creators</a>, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a>-<a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Iwerks, Ub, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt></dl></div><div class="indexdiv"><h3>J</h3><dl><dt>Japanese comics, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>Jaszi, Peter, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Jefferson, Thomas, <a class="indexterm" href="#idp7887136">«PROPERTY»</a>, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>-<a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Johnson, Lyndon, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>Johnson, Samuel, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Jonson, Ben, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Jordan, Jesse, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>journalism, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>jury system, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Just Think!, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt></dl></div><div class="indexdiv"><h3>K</h3><dl><dt>Kaplan, Benjamin, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Kazaa, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Keaton, Buster, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>Kelly, Kevin, <a class="indexterm" href="#eldred-ii">CHAPTER FOURTEEN: Eldred II</a></dt><dt>Kennedy, John F., <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Kittredge, Alfred, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>knowledge, freedom of, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Kodak cameras, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Kodak Primer, The (Eastman), <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Kozinski, Alex, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Krim, Jonathan, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt></dl></div><div class="indexdiv"><h3>L</h3><dl><dt>land ownership, air traffic and, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>Laurel and Hardy Films, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>law</dt><dd><dl><dt>as constraint modality, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>-<a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>common vs. positive, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>databases of case reports in, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>federal vs. state, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt></dl></dd><dt>law schools, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Leaphart, Walter, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Lear, Norman, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>legal realist movement, <a class="indexterm" href="#together">Together</a></dt><dt>legal system, attorney costs in, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>Lessig, Lawrence, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dd><dl><dt>Eldred case involvement of, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>in international debate on intellectual property, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt></dl></dd><dt>Lessing, Lawrence, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>Lexis and Westlaw, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>libraries</dt><dd><dl><dt>archival function of, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>journals in, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>of public-domain literature, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>privacy rights in use of, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt></dl></dd><dt>Library of Congress, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Licensing Act (1662), <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Liebowitz, Stan, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt><dt>Linux operating system, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Litman, Jessica, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Lofgren, Zoe, <a class="indexterm" href="#eldred-ii">CHAPTER FOURTEEN: Eldred II</a></dt><dt>Lott, Trent, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Lovett, Lyle, <a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#eldred-ii">CHAPTER FOURTEEN: Eldred II</a></dt><dt>Lucas, George, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Lucky Dog, The, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt></dl></div><div class="indexdiv"><h3>M</h3><dl><dt>Madonna, <a class="indexterm" href="#radio">Radio</a>-<a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>manga, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>Mansfield, William Murray, Lord, <a class="indexterm" href="#idp6941376">«PIRACY»</a>-<a class="indexterm" href="#idp6941376">«PIRACY»</a>, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Marijuana Policy Project, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>market competition, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>market constraints, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>-<a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Marx Brothers, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>McCain, John, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>media</dt><dd><dl><dt>blog pressure on, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>commercial imperatives of, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>ownership concentration in, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt></dl></dd><dt>media literacy, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Mehra, Salil, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>MGM, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>Michigan Technical University, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>Mickey Mouse, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>Microsoft, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt><dd><dl><dt>competitive strategies of, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>government case against, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>international software piracy of, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>network file system of, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>on free software, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Windows operating system of, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>WIPO meeting opposed by, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt></dl></dd><dt>Millar v. Taylor, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Milton, John, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>monopoly, copyright as, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Morrison, Alan, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Movie Archive, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>Moyers, Bill, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>MP3 players, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>MP3.com, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>MP3s, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>MTV, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Müller, Paul Hermann, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>music publishing, <a class="indexterm" href="#idp6941376">«PIRACY»</a></dt><dt>MusicStore, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>my.mp3.com, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></div><div class="indexdiv"><h3>N</h3><dl><dt>Napster, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>-<a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt><dd><dl><dt>number of registrations on, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>replacement of, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>venture capital for, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>Nashville Songwriters Association, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>National Writers Union, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>NBC, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Needleman, Rafe, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>NET (No Electronic Theft) Act (1998), <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Netanel, Neil Weinstock, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>Netscape, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>New Hampshire (Frost), <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>news coverage, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a>-<a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>newspapers</dt><dd><dl><dt>archives of, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt></dl></dd><dt>Nick and Norm anti-drug campaign, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Nimmer, David, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt><dt>Nimmer, Melville, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt><dt>Ninth Circuit Court of Appeals, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt><dt>No Electronic Theft (NET) Act (1998), <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>norms, regulatory influence of, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt></dl></div><div class="indexdiv"><h3>O</h3><dl><dt>O'Connor, Sandra Day, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Olafson, Steve, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Olson, Theodore B., <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Oppenheimer, Matt, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>originalism, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Orwell, George, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a>-<a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt></dl></div><div class="indexdiv"><h3>P</h3><dl><dt>parallel importation, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Paramount Pictures, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>patents</dt><dd><dl><dt>future patents vs. future copyrights in, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>in public domain, <a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>on pharmaceuticals, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt></dl></dd><dt>Patterson, Raymond, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>peer-to-peer (p2p) file sharing</dt><dd><dl><dt>efficiency of, <a class="indexterm" href="#idp6941376">«PIRACY»</a>-<a class="indexterm" href="#idp6941376">«PIRACY»</a></dt><dt>felony punishments for, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>regulatory balance lost in, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt></dl></dd><dt>permission culture</dt><dd><dl><dt> free culture vs., <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt></dl></dd><dt>permissions</dt><dd><dl><dt>photography exempted from, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt></dl></dd><dt>pharmaceutical patents, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>photography, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Picker, Randal C., <a class="indexterm" href="#film">Film</a>, <a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>piracy</dt><dd><dl><dt>derivative work vs., <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#lawscope">Law: Scope</a>-<a class="indexterm" href="#lawscope">Law: Scope</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>in Asia, <a class="indexterm" href="#piracy-i">Piracy I</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>in development of content industry, <a class="indexterm" href="#pirates">CHAPTER FOUR: «Pirates»</a>-<a class="indexterm" href="#cabletv">Cable TV</a></dt></dl></dd><dt>player pianos, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>PLoS (Public Library of Science), <a class="indexterm" href="#c-conclusion">CONCLUSION</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Pogue, David, <a class="indexterm" href="#preface">PREFACE</a>-<a class="indexterm" href="#preface">PREFACE</a></dt><dt>political discourse, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Politics, (Aristotle), <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Porgy and Bess, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>pornography, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>positive law, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>power, concentration of, <a class="indexterm" href="#preface">PREFACE</a>-<a class="indexterm" href="#preface">PREFACE</a>, <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>Prelinger, Rick, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>Princeton University, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>privacy rights, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Progress Clause, <a class="indexterm" href="#beginnings">Beginnings</a>-<a class="indexterm" href="#beginnings">Beginnings</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Promises to Keep (Fisher), <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a>-<a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>property rights</dt><dd><dl><dt>air traffic vs., <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>feudal system of, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>intangibility of, <a class="indexterm" href="#idp7887136">«PROPERTY»</a></dt></dl></dd><dt>proprietary code, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>protection of artists vs. business interests, <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>Public Citizen, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>public domain</dt><dd><dl><dt>access fees for material in, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>balance of U.S. content in, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>defined, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>e-book restrictions on, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>English legal establishment of, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>future patents vs. future copyrights in, <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>library of works derived from, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>license system for rebuilding of, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>public projects in, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>traditional term for conversion to, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt></dl></dd><dt>Public Enemy, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Public Library of Science (PLoS), <a class="indexterm" href="#c-conclusion">CONCLUSION</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt></dl></div><div class="indexdiv"><h3>Q</h3><dl><dt>Quayle, Dan, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt></dl></div><div class="indexdiv"><h3>R</h3><dl><dt>radio</dt><dd><dl><dt>FM spectrum of, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>music recordings played on, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>on Internet, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>railroad industry, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>rap music, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>RCA, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Reagan, Ronald, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Real Networks, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>recording industry</dt><dd><dl><dt>artist remuneration in, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>copyright infringement lawsuits of, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>copyright protections in, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>Internet radio hampered by, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>radio broadcast and, <a class="indexterm" href="#radio">Radio</a>-<a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>statutory license system in, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a></dt></dl></dd><dt>Recording Industry Association of America (RIAA)</dt><dd><dl><dt>copyright infringement lawsuits filed by, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>intimidation tactics of, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>lobbying power of, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>on Internet radio fees, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>regulation</dt><dd><dl><dt>as establishment protectionism, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>four modalities of, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>outsize penalties of, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt></dl></dd><dt>Rehnquist, William H., <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>remote channel changers, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Rensselaer Polytechnic Institute (RPI), <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dd><dl><dt>computer network search engine of, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt></dl></dd><dt>Rise of the Creative Class, The (Florida), <a class="indexterm" href="#idp6941376">«PIRACY»</a></dt><dt>Roberts, Michael, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>robotic dog, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Rogers, Fred, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Romeo and Juliet (Shakespeare), <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Rose, Mark, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>, <a class="indexterm" href="#c-acknowledgments">ACKNOWLEDGMENTS</a></dt><dt>RPI (see Rensselaer Polytechnic Institute (RPI))</dt><dt>Rubenfeld, Jeb, <a class="indexterm" href="#lawscope">Law: Scope</a></dt><dt>Russel, Phil, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt></dl></div><div class="indexdiv"><h3>S</h3><dl><dt>Safire, William, <a class="indexterm" href="#preface">PREFACE</a>, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>San Francisco Opera, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Sarnoff, David, <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>Scarlet Letter, The (Hawthorne), <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Schlafly, Phyllis, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>scientific journals, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Scottish publishers, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>search engines, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>Seasons, The (Thomson), <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Senate, U.S., <a class="indexterm" href="#beginnings">Beginnings</a></dt><dt>September 11, 2001, terrorist attacks of, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>Shakespeare, William, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>sheet music, <a class="indexterm" href="#idp6941376">«PIRACY»</a>, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Silent Spring (Carson), <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Simpsons, The, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>single nucleotied polymorphisms (SNPs), <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Sonny Bono Copyright Term Extension Act (CTEA) (1998), <a class="indexterm" href="#lawduration">Law: Duration</a>-<a class="indexterm" href="#lawduration">Law: Duration</a>, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a>-<a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dd><dl><dt>Supreme Court challenge of, <a class="indexterm" href="#firelawyers">5. Fire Lots of Lawyers</a></dt></dl></dd><dt>Sony</dt><dd><dl><dt>Aibo robotic dog produced by, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt></dl></dd><dt>Sony Pictures Entertainment, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>Sousa, John Philip, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>South Africa, Republic of, pharmaceutical imports by, <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>speech, freedom of</dt><dd><dl><dt>constitutional guarantee of, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt></dl></dd><dt>speeding, constraints on, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>-<a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>Stallman, Richard, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Stanford University, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Star Wars, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Statute of Anne (1710), <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>, <a class="indexterm" href="#lawduration">Law: Duration</a></dt><dt>Statute of Monopolies (1656), <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>statutory damages, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt><dt>statutory licenses, <a class="indexterm" href="#recordedmusic">Recorded Music</a>-<a class="indexterm" href="#recordedmusic">Recorded Music</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Steamboat Bill, Jr., <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Steamboat Willie, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>steel industry, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>Stevens, Ted, <a class="indexterm" href="#preface">PREFACE</a></dt><dt>Steward, Geoffrey, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Superman comics, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>Supreme Court, U.S.</dt><dd><dl><dt>access to opinions of, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>House of Lords vs., <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>on airspace vs. land rights, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>on balance of interests in copyright law, <a class="indexterm" href="#piracy-ii">Piracy II</a></dt><dt>on television advertising bans, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt></dl></dd><dt>Sutherland, Donald, <a class="indexterm" href="#transformers">CHAPTER EIGHT: Transformers</a></dt></dl></div><div class="indexdiv"><h3>T</h3><dl><dt>Talbot, William, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Tatel, David, <a class="indexterm" href="#eldred">CHAPTER THIRTEEN: Eldred</a></dt><dt>Tauzin, Billy, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Taylor, Robert, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>technology</dt><dd><dl><dt>copyright enforcement controlled by, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>copyright intent altered by, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>established industries threatened by changes in, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt></dl></dd><dt>television</dt><dd><dl><dt>advertising on, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>-<a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>cable vs. broadcast, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>controversy avoided by, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt></dl></dd><dt>Television Archive, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>Thomson, James, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Thurmond, Strom, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Tocqueville, Alexis de, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Tonson, Jacob, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>Torvalds, Linus, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Turner, Ted, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Twentieth Century Fox, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt></dl></div><div class="indexdiv"><h3>U</h3><dl><dt>United Kingdom</dt><dd><dl><dt>history of copyright law in, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>-<a class="indexterm" href="#founders">CHAPTER SIX: Founders</a></dt><dt>public creative archive in, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt></dl></dd><dt>United States Trade Representative (USTR), <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Universal Music Group, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Universal Pictures, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a></dt><dt>university computer networks, p2p sharing on, <a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a>-<a class="indexterm" href="#catalogs">CHAPTER THREE: Catalogs</a></dt></dl></div><div class="indexdiv"><h3>V</h3><dl><dt>Vaidhyanathan, Siva, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>, <a class="indexterm" href="#film">Film</a>, <a class="indexterm" href="#founders">CHAPTER SIX: Founders</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>, <a class="indexterm" href="#together">Together</a></dt><dt>Valenti, Jack</dt><dd><dl><dt> on creative property rights, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt></dl></dd><dt>Vanderbilt University, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>VCRs, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>venture capitalists, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>veterans' pensions, <a class="indexterm" href="#shortterms">2. Shorter Terms</a></dt><dt>Video Pipeline, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Vivendi Universal, <a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>von Lohmann, Fred, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt></dl></div><div class="indexdiv"><h3>W</h3><dl><dt>Wagner, Richard, <a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a>-<a class="indexterm" href="#recorders">CHAPTER SEVEN: Recorders</a></dt><dt>Warner Brothers, <a class="indexterm" href="#property-i">CHAPTER TEN: «Property»</a>, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Warner Music Group, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Warren, Samuel D., <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Way Back Machine, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>Wayner, Peter, <a class="indexterm" href="#oneidea">Rebuilding Free Culture: One Idea</a></dt><dt>Web-logs (blogs), <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Webster, Noah, <a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt><dt>Wellcome Trust, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>Wells, H. G., <a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a>-<a class="indexterm" href="#chimera">CHAPTER ELEVEN: Chimera</a></dt><dt>White House press releases, <a class="indexterm" href="#collectors">CHAPTER NINE: Collectors</a></dt><dt>willful infringement, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a></dt><dt>Windows, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>Winer, Dave, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a>-<a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>Winick, Judd, <a class="indexterm" href="#creators">CHAPTER ONE: Creators</a>-<a class="indexterm" href="#creators">CHAPTER ONE: Creators</a></dt><dt>WJOA, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>World Intellectual Property Organization (WIPO), <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>World Summit on the Information Society (WSIS), <a class="indexterm" href="#c-conclusion">CONCLUSION</a>-<a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>World Trade Center, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt><dt>World Wide Web, <a class="indexterm" href="#c-conclusion">CONCLUSION</a></dt><dt>WorldCom, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>WRC, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Wright brothers, <a class="indexterm" href="#c-introduction">INTRODUCTION</a>-<a class="indexterm" href="#c-introduction">INTRODUCTION</a></dt></dl></div><div class="indexdiv"><h3>Y</h3><dl><dt>Yanofsky, Dave, <a class="indexterm" href="#mere-copyists">CHAPTER TWO: «Mere Copyists»</a></dt></dl></div><div class="indexdiv"><h3>Z</h3><dl><dt>Zimmerman, Edwin, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>Zittrain, Jonathan, <a class="indexterm" href="#idp6941376">«PIRACY»</a>, <a class="indexterm" href="#lawscope">Law: Scope</a></dt></dl></div></div></div><div class="colophon"><h1 class="title"><a name="idp10691184"></a>Colophon</h1><p>
12180 This digital book was published by Petter Reinholdtsen in 2014.
12181 </p><p>
12182 The original hardcover paper book was published in 2004 by The Penguin
12183 Press, a member of Penguin Group (USA) Inc. 375 Hudson Street New
12184 York, New York.
12185 </p><p>
12186 Copyright © Lawrence Lessig.  Some rights reserved.
12187 </p><p>
12188 This version of <em class="citetitle">Free Culture</em> is licensed under
12189 a Creative Commons license. This license permits non-commercial use of
12190 this work, so long as attribution is given.  For more information
12191 about the license, click the icon above, or visit
12192 <a class="ulink" href="http://creativecommons.org/licenses/by-nc/1.0/" target="_top">http://creativecommons.org/licenses/by-nc/1.0/</a>
12193 </p><p>
12194 Excerpt from an editorial titled <span class="quote">«<span class="quote">The Coming of Copyright
12195 Perpetuity,</span>»</span> <em class="citetitle">The New York Times</em>, January
12196 16, 2003. Copyright © 2003 by The New York Times Co.  Reprinted
12197 with permission.
12198 </p><p>
12199 Cartoon in <a class="xref" href="#fig-1711-vcr-handgun-cartoonfig" title="Figure 10.18. VCR/handgun cartoon.">Figure 10.18, &#8220;VCR/handgun cartoon.&#8221;</a> by Paul
12200 Conrad, copyright Tribune Media Services, Inc.  All rights
12201 reserved. Reprinted with permission.
12202 </p><p>
12203 Diagram in <a class="xref" href="#fig-1761-pattern-modern-media-ownership" title="Figure 10.19. Pattern of modern media ownership.">Figure 10.19, &#8220;Pattern of modern media ownership.&#8221;</a>
12204 courtesy of the office of FCC Commissioner, Michael J. Copps.
12205 </p><p>
12206 Library of Congress Cataloging-in-Publication Data
12207 </p><p>
12208 Lessig, Lawrence.
12209 Free culture : how big media uses technology and the law to lock down
12210 culture and control creativity / Lawrence Lessig.
12211 </p><p>
12212 p. cm.
12213 </p><p>
12214 Includes index.
12215 </p><p>
12216 </p><div class="informaltable"><a name="isbn"></a><table border="1"><colgroup><col><col></colgroup><thead><tr><th align="left">ISBN</th><th align="left">Format / MIME-type</th></tr></thead><tbody><tr><td align="left">978-82-92812-XX-Y</td><td align="left">text/plain</td></tr><tr><td align="left">978-82-92812-XX-Y</td><td align="left">application/pdf</td></tr><tr><td align="left">978-82-92812-XX-Y</td><td align="left">text/html</td></tr><tr><td align="left">978-82-92812-XX-Y</td><td align="left">application/epub+zip</td></tr><tr><td align="left">978-82-92812-XX-Y</td><td align="left">application/docbook+xml</td></tr><tr><td align="left">978-82-92812-XX-Y</td><td align="left">application/x-mobipocket-ebook</td></tr></tbody></table></div><p>
12217 </p><p>
12218 1. Intellectual property&#8212;United States.
12219 </p><p>
12220 2. Mass media&#8212;United States.
12221 </p><p>
12222 3. Technological innovations&#8212;United States.
12223 </p><p>
12224 4. Art&#8212;United States. I. Title.
12225 </p><p>
12226 KF2979.L47 2004
12227 </p><p>
12228 343.7309'9&#8212;dc22 2003063276
12229 </p><p>
12230 The source of this version of the text is written using DocBook
12231 notation and the other formats are derived from the DocBook source.
12232 The DocBook source is based on a DocBook XML version created by Hans
12233 Schou, and extended with formatting and index references by Petter
12234 Reinholdtsen.  The source files of this book is available as
12235 <a class="ulink" href="https://github.com/petterreinholdtsen/free-culture-lessig" target="_top">a
12236 github project</a>.
12237 </p><p>
12238
12239 </p></div></div></body></html>