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   1 <html><head><meta http-equiv="Content-Type" content="text/html; charset=ISO-8859-1"><title>Free Culture</title><meta name="generator" content="DocBook XSL Stylesheets V1.78.1"><meta name="description" content="About the author Lawrence Lessig (http://www.lessig.org), professor of law and a Roy L. Furman Professor of Law and Leadership at Harvard Law School, is founder of the Stanford Center for Internet and Society and is chairman of the Creative Commons (http://creativecommons.org). The author of The Future of Ideas (Random House, 2001) and Code: And Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of the boards of the Public Library of Science, the Electronic Frontier Foundation, and Public Knowledge. He was the winner of the Free Software Foundation's Award for the Advancement of Free Software, twice listed in BusinessWeek's e.biz 25, and named one of Scientific American's 50 visionaries. A graduate of the University of Pennsylvania, Cambridge University, and Yale Law School, Lessig clerked for Judge Richard Posner of the U.S. Seventh Circuit Court of Appeals."></head><body bgcolor="white" text="black" link="#0000FF" vlink="#840084" alink="#0000FF"><div lang="en" class="book"><div class="titlepage"><div><div><h1 class="title"><a name="index"></a>Free Culture</h1></div><div><h2 class="subtitle">How big media uses technology and the law to lock down
   2  culture and control creativity</h2></div><div><div class="authorgroup"><div class="author"><h3 class="author"><span class="firstname">Lawrence</span> <span class="surname">Lessig</span></h3></div></div></div><div><p class="releaseinfo">Version 2004-02-10</p></div><div><p class="copyright">Copyright © 2004 Lawrence Lessig</p></div><div><div class="legalnotice"><a name="idp4571200"></a><p>
   3      <span class="inlinemediaobject"><img src="images/cc.png" align="middle" height="38" alt="Creative Commons, Some rights reserved"></span>
   4    </p><p>
   5 This book is licensed under a Creative Commons license. This license
   6 permits non-commercial use of this work, so long as attribution is
   7 given.  For more information about the license visit
   8 <a class="ulink" href="http://creativecommons.org/licenses/by-nc/1.0/" target="_top">http://creativecommons.org/licenses/by-nc/1.0/</a>.
   9    </p></div></div><div><p class="pubdate">2015-09-04</p></div><div><div class="abstract"><p class="title"><b>About the author</b></p><p>
  10 Lawrence Lessig
  11 (<a class="ulink" href="http://www.lessig.org" target="_top">http://www.lessig.org</a>),
  12 professor of law and a Roy L. Furman Professor of Law and Leadership
  13 at Harvard Law School, is founder of the Stanford Center for Internet
  14 and Society and is chairman of the Creative Commons
  15 (<a class="ulink" href="http://creativecommons.org" target="_top">http://creativecommons.org</a>).
  16 The author of The Future of Ideas (Random House, 2001) and Code: And
  17 Other Laws of Cyberspace (Basic Books, 1999), Lessig is a member of
  18 the boards of the Public Library of Science, the Electronic Frontier
  19 Foundation, and Public Knowledge. He was the winner of the Free
  20 Software Foundation's Award for the Advancement of Free Software,
  21 twice listed in BusinessWeek's <span class="quote">«<span class="quote">e.biz 25,</span>»</span> and named one
  22 of Scientific American's <span class="quote">«<span class="quote">50 visionaries.</span>»</span> A graduate of
  23 the University of Pennsylvania, Cambridge University, and Yale Law
  24 School, Lessig clerked for Judge Richard Posner of the U.S. Seventh
  25 Circuit Court of Appeals.
  26   </p></div></div></div><hr></div><div class="dedication"><div class="titlepage"><div><div><h1 class="title"><a name="alsobylessig"></a>
  27 Also by Lawrence Lessig
  28 </h1></div></div></div><div class="itemizedlist"><ul class="itemizedlist" style="list-style-type: disc; "><li class="listitem"><p>
  29 The USA is lesterland: The nature of congressional corruption (2014)
  30 </p></li><li class="listitem"><p>
  31 Republic, lost: How money corrupts Congress - and a plan to stop it  (2011)
  32 </p></li><li class="listitem"><p>
  33 Remix: Making art and commerce thrive in the hybrid economy (2008)
  34 </p></li><li class="listitem"><p>
  35 Code: Version 2.0 (2006)
  36 </p></li><li class="listitem"><p>
  37 The Future of Ideas: The Fate of the Commons in a Connected World (2001)
  38 </p></li><li class="listitem"><p>
  39 Code: And Other Laws of Cyberspace (1999)
  40 </p></li></ul></div></div><div class="dedication"><div class="titlepage"><div><div><h1 class="title"><a name="idp4691840"></a></h1></div></div></div><p>
  41 To Eric Eldred &#8212; whose work first drew me to this cause, and for whom
  42 it continues still.
  43 </p></div><div class="toc"><dl class="toc"><dt><span class="preface"><a href="#preface">Preface</a></span></dt><dt><span class="chapter"><a href="#c-introduction">Introduction</a></span></dt><dt><span class="part">I. <a href="#c-piracy"><span class="quote">«<span class="quote">Piracy</span>»</span></a></span></dt><dd><dl><dt><span class="chapter">1. <a href="#creators">Chapter One: Creators</a></span></dt><dt><span class="chapter">2. <a href="#mere-copyists">Chapter Two: <span class="quote">«<span class="quote">Mere Copyists</span>»</span></a></span></dt><dt><span class="chapter">3. <a href="#catalogs">Chapter Three: Catalogs</a></span></dt><dt><span class="chapter">4. <a href="#pirates">Chapter Four: <span class="quote">«<span class="quote">Pirates</span>»</span></a></span></dt><dd><dl><dt><span class="section">4.1. <a href="#film">Film</a></span></dt><dt><span class="section">4.2. <a href="#recordedmusic">Recorded Music</a></span></dt><dt><span class="section">4.3. <a href="#radio">Radio</a></span></dt><dt><span class="section">4.4. <a href="#cabletv">Cable TV</a></span></dt></dl></dd><dt><span class="chapter">5. <a href="#piracy">Chapter Five: <span class="quote">«<span class="quote">Piracy</span>»</span></a></span></dt><dd><dl><dt><span class="section">5.1. <a href="#piracy-i">Piracy I</a></span></dt><dt><span class="section">5.2. <a href="#piracy-ii">Piracy II</a></span></dt></dl></dd></dl></dd><dt><span class="part">II. <a href="#c-property"><span class="quote">«<span class="quote">Property</span>»</span></a></span></dt><dd><dl><dt><span class="chapter">6. <a href="#founders">Chapter Six: Founders</a></span></dt><dt><span class="chapter">7. <a href="#recorders">Chapter Seven: Recorders</a></span></dt><dt><span class="chapter">8. <a href="#transformers">Chapter Eight: Transformers</a></span></dt><dt><span class="chapter">9. <a href="#collectors">Chapter Nine: Collectors</a></span></dt><dt><span class="chapter">10. <a href="#property-i">Chapter Ten: <span class="quote">«<span class="quote">Property</span>»</span></a></span></dt><dd><dl><dt><span class="section">10.1. <a href="#hollywood">Why Hollywood Is Right</a></span></dt><dt><span class="section">10.2. <a href="#beginnings">Beginnings</a></span></dt><dt><span class="section">10.3. <a href="#lawduration">Law: Duration</a></span></dt><dt><span class="section">10.4. <a href="#lawscope">Law: Scope</a></span></dt><dt><span class="section">10.5. <a href="#lawreach">Law and Architecture: Reach</a></span></dt><dt><span class="section">10.6. <a href="#lawforce">Architecture and Law: Force</a></span></dt><dt><span class="section">10.7. <a href="#marketconcentration">Market: Concentration</a></span></dt><dt><span class="section">10.8. <a href="#together">Together</a></span></dt></dl></dd></dl></dd><dt><span class="part">III. <a href="#c-puzzles">Puzzles</a></span></dt><dd><dl><dt><span class="chapter">11. <a href="#chimera">Chapter Eleven: Chimera</a></span></dt><dt><span class="chapter">12. <a href="#harms">Chapter Twelve: Harms</a></span></dt><dd><dl><dt><span class="section">12.1. <a href="#constrain">Constraining Creators</a></span></dt><dt><span class="section">12.2. <a href="#innovators">Constraining Innovators</a></span></dt><dt><span class="section">12.3. <a href="#corruptingcitizens">Corrupting Citizens</a></span></dt></dl></dd></dl></dd><dt><span class="part">IV. <a href="#c-balances">Balances</a></span></dt><dd><dl><dt><span class="chapter">13. <a href="#eldred">Chapter Thirteen: Eldred</a></span></dt><dt><span class="chapter">14. <a href="#eldred-ii">Chapter Fourteen: Eldred II</a></span></dt></dl></dd><dt><span class="chapter"><a href="#c-conclusion">Conclusion</a></span></dt><dt><span class="chapter"><a href="#c-afterword">Afterword</a></span></dt><dd><dl><dt><span class="section">1. <a href="#usnow">Us, now</a></span></dt><dd><dl><dt><span class="section">1.1. <a href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></span></dt><dt><span class="section">1.2. <a href="#oneidea">Rebuilding Free Culture: One Idea</a></span></dt></dl></dd><dt><span class="section">2. <a href="#themsoon">Them, soon</a></span></dt><dd><dl><dt><span class="section">2.1. <a href="#formalities">1. More Formalities</a></span></dt><dd><dl><dt><span class="section">2.1.1. <a href="#registration">Registration and renewal</a></span></dt><dt><span class="section">2.1.2. <a href="#marking">Marking</a></span></dt></dl></dd><dt><span class="section">2.2. <a href="#shortterms">2. Shorter Terms</a></span></dt><dt><span class="section">2.3. <a href="#freefairuse">3. Free Use Vs. Fair Use</a></span></dt><dt><span class="section">2.4. <a href="#liberatemusic">4. Liberate the Music&#8212;Again</a></span></dt><dt><span class="section">2.5. <a href="#firelawyers">5. Fire Lots of Lawyers</a></span></dt></dl></dd></dl></dd><dt><span class="chapter"><a href="#c-notes">Notes</a></span></dt><dd><dl><dt><span class="index"><a href="#idp10756272">Index</a></span></dt></dl></dd><dt><span class="chapter"><a href="#c-acknowledgments">Acknowledgments</a></span></dt><dt><span class="chapter"><a href="#c-about-this-edition">About this edition</a></span></dt><dt><span class="index"><a href="#idp10775024">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>
  44 <span class="bold"><strong>At the end</strong></span> of his review of my first
  45 book, <em class="citetitle">Code: And Other Laws of Cyberspace</em>, David
  46 Pogue, a brilliant writer and author of countless technical and
  47 computer-related texts, wrote this:
  48 </p><div class="blockquote"><blockquote class="blockquote"><p>
  49 Unlike actual law, Internet software has no capacity to punish. It
  50 doesn't affect people who aren't online (and only a tiny minority
  51 of the world population is). And if you don't like the Internet's
  52 system, you can always flip off the modem.<a href="#ftn.preface01" class="footnote" name="preface01"><sup class="footnote">[1]</sup></a>
  53 </p></blockquote></div><p>
  54 Pogue was skeptical of the core argument of the book&#8212;that
  55 software, or <span class="quote">«<span class="quote">code,</span>»</span> functioned as a kind of law&#8212;and his review
  56 suggested the happy thought that if life in cyberspace got bad, we
  57 could always <span class="quote">«<span class="quote">drizzle, drazzle, druzzle, drome</span>»</span>-like simply flip a
  58 switch and be back home. Turn off the modem, unplug the computer, and
  59 any troubles that exist in <span class="emphasis"><em>that</em></span> space wouldn't
  60 <span class="quote">«<span class="quote">affect</span>»</span> us anymore.
  61 </p><p>
  62 Pogue might have been right in 1999&#8212;I'm skeptical, but maybe.
  63 But even if he was right then, the point is not right now:
  64 <em class="citetitle">Free Culture</em> is about the troubles the Internet
  65 causes even after the modem is turned
  66
  67 off. It is an argument about how the battles that now rage regarding life
  68 on-line have fundamentally affected <span class="quote">«<span class="quote">people who aren't online.</span>»</span> There
  69 is no switch that will insulate us from the Internet's effect.
  70 </p><a class="indexterm" name="idp209632"></a><p>
  71 But unlike <em class="citetitle">Code</em>, the argument here is not much
  72 about the Internet itself. It is instead about the consequence of the
  73 Internet to a part of our tradition that is much more fundamental,
  74 and, as hard as this is for a geek-wanna-be to admit, much more
  75 important.
  76 </p><p>
  77 That tradition is the way our culture gets made. As I explain in the
  78 pages that follow, we come from a tradition of <span class="quote">«<span class="quote">free culture</span>»</span>&#8212;not
  79 <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
  80 free software movement<a href="#ftn.idp318368" class="footnote" name="idp318368"><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>
  81 <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
  82 free culture supports and protects creators and innovators. It does
  83 this directly by granting intellectual property rights. But it does so
  84 indirectly by limiting the reach of those rights, to guarantee that
  85 follow-on creators and innovators remain <span class="emphasis"><em>as free as
  86 possible</em></span> from the control of the past. A free culture is
  87 not a culture without property, just as a free market is not a market
  88 in which everything is free. The opposite of a free culture is a
  89 <span class="quote">«<span class="quote">permission culture</span>»</span>&#8212;a culture in which creators get to create
  90 only with the permission of the powerful, or of creators from the
  91 past.
  92 </p><p>
  93 If we understood this change, I believe we would resist it. Not <span class="quote">«<span class="quote">we</span>»</span>
  94 on the Left or <span class="quote">«<span class="quote">you</span>»</span> on the Right, but we who have no stake in the
  95 particular industries of culture that defined the twentieth century.
  96 Whether you are on the Left or the Right, if you are in this sense
  97 disinterested, then the story I tell here will trouble you. For the
  98 changes I describe affect values that both sides of our political
  99 culture deem fundamental.
 100 </p><a class="indexterm" name="idxpowerconcentrationof"></a><a class="indexterm" name="idp138080"></a><a class="indexterm" name="idp138896"></a><a class="indexterm" name="idp139712"></a><p>
 101 We saw a glimpse of this bipartisan outrage in the early summer of
 102 2003. As the FCC considered changes in media ownership rules that
 103 would relax limits on media concentration, an extraordinary coalition
 104 generated more than 700,000 letters to the FCC opposing the change.
 105 As William Safire described marching <span class="quote">«<span class="quote">uncomfortably alongside CodePink
 106 Women for Peace and the National Rifle Association, between liberal
 107 Olympia Snowe and conservative Ted Stevens,</span>»</span> he formulated perhaps
 108 most simply just what was at stake: the concentration of power. And as
 109 he asked,
 110 </p><div class="blockquote"><blockquote class="blockquote"><p>
 111 Does that sound unconservative? Not to me. The concentration of
 112 power&#8212;political, corporate, media, cultural&#8212;should be anathema to
 113 conservatives. The diffusion of power through local control, thereby
 114 encouraging individual participation, is the essence of federalism and
 115 the greatest expression of democracy.<a href="#ftn.idp142416" class="footnote" name="idp142416"><sup class="footnote">[3]</sup></a>
 116 </p></blockquote></div><p>
 117 This idea is an element of the argument of <em class="citetitle">Free Culture</em>, though my
 118 focus is not just on the concentration of power produced by
 119 concentrations in ownership, but more importantly, if because less
 120 visibly, on the concentration of power produced by a radical change in
 121 the effective scope of the law. The law is changing; that change is
 122 altering the way our culture gets made; that change should worry
 123 you&#8212;whether or not you care about the Internet, and whether you're on
 124 Safire's left or on his right.
 125 </p><a class="indexterm" name="idp145904"></a><p>
 126 <span class="strong"><strong>The inspiration</strong></span> for the title and for
 127 much of the argument of this book comes from the work of Richard
 128 Stallman and the Free Software Foundation. Indeed, as I reread
 129 Stallman's own work, especially the essays in <em class="citetitle">Free Software, Free
 130 Society</em>, I realize that all of the theoretical insights I develop here
 131 are insights Stallman described decades ago. One could thus well argue
 132 that this work is <span class="quote">«<span class="quote">merely</span>»</span> derivative.
 133 </p><p>
 134 I accept that criticism, if indeed it is a criticism. The work of a
 135 lawyer is always derivative, and I mean to do nothing more in this
 136 book than to remind a culture about a tradition that has always been
 137 its own.  Like Stallman, I defend that tradition on the basis of
 138 values. Like Stallman, I believe those are the values of freedom. And
 139 like Stallman, I believe those are values of our past that will need
 140 to be defended in our future. A free culture has been our past, but it
 141 will only be our future if we change the path we are on right now.
 142
 143
 144 Like Stallman's arguments for free software, an argument for free
 145 culture stumbles on a confusion that is hard to avoid, and even harder
 146 to understand. A free culture is not a culture without property; it is not
 147 a culture in which artists don't get paid. A culture without property, or
 148 in which creators can't get paid, is anarchy, not freedom. Anarchy is not
 149 what I advance here.
 150 </p><p>
 151 Instead, the free culture that I defend in this book is a balance
 152 between anarchy and control. A free culture, like a free market, is
 153 filled with property. It is filled with rules of property and contract
 154 that get enforced by the state. But just as a free market is perverted
 155 if its property becomes feudal, so too can a free culture be queered
 156 by extremism in the property rights that define it. That is what I
 157 fear about our culture today. It is against that extremism that this
 158 book is written.
 159 </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>
 160 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.
 161 </p></div><div id="ftn.idp318368" class="footnote"><p><a href="#idp318368" class="para"><sup class="para">[2] </sup></a>
 162 Richard M. Stallman, <em class="citetitle">Free Software, Free Societies</em> 57 (Joshua Gay, ed. 2002).
 163 </p></div><div id="ftn.idp142416" class="footnote"><p><a href="#idp142416" class="para"><sup class="para">[3] </sup></a> William Safire,
 164 <span class="quote">«<span class="quote">The Great Media Gulp,</span>»</span> <em class="citetitle">New York Times</em>, 22 May 2003.
 165 <a class="indexterm" name="idp144032"></a>
 166 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-introduction"></a>Chapter . Introduction</h1></div></div></div><a class="indexterm" name="idxwrightbrothers"></a><p>
 167 <span class="strong"><strong>On December 17</strong></span>, 1903, on a windy North Carolina beach for just
 168 shy of one hundred seconds, the Wright brothers demonstrated that a
 169 heavier-than-air, self-propelled vehicle could fly. The moment was electric
 170 and its importance widely understood. Almost immediately, there
 171 was an explosion of interest in this newfound technology of manned
 172 flight, and a gaggle of innovators began to build upon it.
 173 </p><a class="indexterm" name="idxairtrafficlandownershipvs"></a><a class="indexterm" name="idxlandownershipairtrafficand"></a><a class="indexterm" name="idxpropertyrightsairtrafficvs"></a><p>
 174 At the time the Wright brothers invented the airplane, American
 175 law held that a property owner presumptively owned not just the surface
 176 of his land, but all the land below, down to the center of the earth,
 177 and all the space above, to <span class="quote">«<span class="quote">an indefinite extent, upwards.</span>»</span><a href="#ftn.idp168000" class="footnote" name="idp168000"><sup class="footnote">[4]</sup></a>
 178 For many
 179 years, scholars had puzzled about how best to interpret the idea that
 180 rights in land ran to the heavens. Did that mean that you owned the
 181 stars? Could you prosecute geese for their willful and regular trespass?
 182 </p><a class="indexterm" name="idp169344"></a><p>
 183 Then came airplanes, and for the first time, this principle of American
 184 law&#8212;deep within the foundations of our tradition, and acknowledged
 185 by the most important legal thinkers of our past&#8212;mattered. If
 186 my land reaches to the heavens, what happens when United flies over
 187 my field? Do I have the right to banish it from my property? Am I allowed
 188 to enter into an exclusive license with Delta Airlines? Could we
 189 set up an auction to decide how much these rights are worth?
 190 </p><a class="indexterm" name="idp171600"></a><a class="indexterm" name="idp172384"></a><p>
 191 In 1945, these questions became a federal case. When North Carolina
 192 farmers Thomas Lee and Tinie Causby started losing chickens
 193 because of low-flying military aircraft (the terrified chickens apparently
 194 flew into the barn walls and died), the Causbys filed a lawsuit saying
 195 that the government was trespassing on their land. The airplanes,
 196 of course, never touched the surface of the Causbys' land. But if, as
 197 Blackstone, Kent, and Coke had said, their land reached to <span class="quote">«<span class="quote">an indefinite
 198 extent, upwards,</span>»</span> then the government was trespassing on their
 199 property, and the Causbys wanted it to stop.
 200 </p><a class="indexterm" name="idp174608"></a><a class="indexterm" name="idp175424"></a><a class="indexterm" name="idxdouglaswilliamo"></a><a class="indexterm" name="idxsupremecourtusonairspacevslandrights"></a><p>
 201 The Supreme Court agreed to hear the Causbys' case. Congress had
 202 declared the airways public, but if one's property really extended to the
 203 heavens, then Congress's declaration could well have been an unconstitutional
 204 <span class="quote">«<span class="quote">taking</span>»</span> of property without compensation. The Court acknowledged
 205 that <span class="quote">«<span class="quote">it is ancient doctrine that common law ownership of
 206 the land extended to the periphery of the universe.</span>»</span> But Justice Douglas
 207 had no patience for ancient doctrine. In a single paragraph, hundreds of
 208 years of property law were erased. As he wrote for the Court,
 209 </p><div class="blockquote"><blockquote class="blockquote"><p>
 210 [The] doctrine has no place in the modern world. The air is a
 211 public highway, as Congress has declared. Were that not true,
 212 every transcontinental flight would subject the operator to countless
 213 trespass suits. Common sense revolts at the idea. To recognize
 214 such private claims to the airspace would clog these highways,
 215 seriously interfere with their control and development in the public
 216 interest, and transfer into private ownership that to which only
 217 the public has a just claim.<a href="#ftn.idp6875120" class="footnote" name="idp6875120"><sup class="footnote">[5]</sup></a>
 218 </p></blockquote></div><p>
 219 <span class="quote">«<span class="quote">Common sense revolts at the idea.</span>»</span>
 220 </p><a class="indexterm" name="idp6880400"></a><p>
 221 This is how the law usually works. Not often this abruptly or
 222 impatiently, but eventually, this is how it works. It was Douglas's style not to
 223 dither. Other justices would have blathered on for pages to reach the
 224
 225 conclusion that Douglas holds in a single line: <span class="quote">«<span class="quote">Common sense revolts
 226 at the idea.</span>»</span> But whether it takes pages or a few words, it is the special
 227 genius of a common law system, as ours is, that the law adjusts to the
 228 technologies of the time. And as it adjusts, it changes. Ideas that were
 229 as solid as rock in one age crumble in another.
 230 </p><a class="indexterm" name="idp6883344"></a><a class="indexterm" name="idp6884128"></a><a class="indexterm" name="idp6884944"></a><p>
 231 Or at least, this is how things happen when there's no one powerful
 232 on the other side of the change. The Causbys were just farmers. And
 233 though there were no doubt many like them who were upset by the
 234 growing traffic in the air (though one hopes not many chickens flew
 235 themselves into walls), the Causbys of the world would find it very
 236 hard to unite and stop the idea, and the technology, that the Wright
 237 brothers had birthed. The Wright brothers spat airplanes into the
 238 technological meme pool; the idea then spread like a virus in a chicken
 239 coop; farmers like the Causbys found themselves surrounded by <span class="quote">«<span class="quote">what
 240 seemed reasonable</span>»</span> given the technology that the Wrights had produced.
 241 They could stand on their farms, dead chickens in hand, and
 242 shake their fists at these newfangled technologies all they wanted.
 243 They could call their representatives or even file a lawsuit. But in the
 244 end, the force of what seems <span class="quote">«<span class="quote">obvious</span>»</span> to everyone else&#8212;the power of
 245 <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
 246 allowed to defeat an obvious public gain.
 247 </p><a class="indexterm" name="idp6888832"></a><a class="indexterm" name="idp6890160"></a><a class="indexterm" name="idp6891504"></a><a class="indexterm" name="idp6892480"></a><a class="indexterm" name="idxarmstrongedwinhoward"></a><a class="indexterm" name="idp6894688"></a><a class="indexterm" name="idp6895440"></a><a class="indexterm" name="idp6896192"></a><a class="indexterm" name="idxradiofmspectrumof"></a><p>
 248 <span class="strong"><strong>Edwin Howard Armstrong</strong></span> is one of
 249 America's forgotten inventor geniuses. He came to the great American
 250 inventor scene just after the titans Thomas Edison and Alexander
 251 Graham Bell. But his work in the area of radio technology was perhaps
 252 the most important of any single inventor in the first fifty years of
 253 radio. He was better educated than Michael Faraday, who as a
 254 bookbinder's apprentice had discovered electric induction in 1831. But
 255 he had the same intuition about how the world of radio worked, and on
 256 at least three occasions, Armstrong invented profoundly important
 257 technologies that advanced our understanding of radio.
 258
 259 </p><p>
 260 On the day after Christmas, 1933, four patents were issued to Armstrong
 261 for his most significant invention&#8212;FM radio. Until then, consumer radio
 262 had been amplitude-modulated (AM) radio. The theorists
 263 of the day had said that frequency-modulated (FM) radio could never
 264 work. They were right about FM radio in a narrow band of spectrum.
 265 But Armstrong discovered that frequency-modulated radio in a wide
 266 band of spectrum would deliver an astonishing fidelity of sound, with
 267 much less transmitter power and static.
 268 </p><p>
 269 On November 5, 1935, he demonstrated the technology at a meeting of
 270 the Institute of Radio Engineers at the Empire State Building in New
 271 York City. He tuned his radio dial across a range of AM stations,
 272 until the radio locked on a broadcast that he had arranged from
 273 seventeen miles away. The radio fell totally silent, as if dead, and
 274 then with a clarity no one else in that room had ever heard from an
 275 electrical device, it produced the sound of an announcer's voice:
 276 <span class="quote">«<span class="quote">This is amateur station W2AG at Yonkers, New York, operating on
 277 frequency modulation at two and a half meters.</span>»</span>
 278 </p><p>
 279 The audience was hearing something no one had thought possible:
 280 </p><div class="blockquote"><blockquote class="blockquote"><p>
 281 A glass of water was poured before the microphone in Yonkers; it
 282 sounded like a glass of water being poured. &#8230; A paper was crumpled
 283 and torn; it sounded like paper and not like a crackling forest
 284 fire. &#8230; Sousa marches were played from records and a piano solo
 285 and guitar number were performed. &#8230; The music was projected with a
 286 live-ness rarely if ever heard before from a radio <span class="quote">«<span class="quote">music
 287 box.</span>»</span><a href="#ftn.idp6904640" class="footnote" name="idp6904640"><sup class="footnote">[6]</sup></a>
 288 </p></blockquote></div><a class="indexterm" name="idxrca"></a><a class="indexterm" name="idxmediaownershipconcentrationin"></a><p>
 289 As our own common sense tells us, Armstrong had discovered a vastly
 290 superior radio technology. But at the time of his invention, Armstrong
 291 was working for RCA. RCA was the dominant player in the then dominant
 292 AM radio market. By 1935, there were a thousand radio stations across
 293 the United States, but the stations in large cities were all owned by
 294 a handful of networks.
 295
 296 </p><a class="indexterm" name="idp6910240"></a><p>
 297 RCA's president, David Sarnoff, a friend of Armstrong's, was eager
 298 that Armstrong discover a way to remove static from AM radio. So
 299 Sarnoff was quite excited when Armstrong told him he had a device
 300 that removed static from <span class="quote">«<span class="quote">radio.</span>»</span> But when Armstrong demonstrated
 301 his invention, Sarnoff was not pleased.
 302 </p><div class="blockquote"><blockquote class="blockquote"><p>
 303 I thought Armstrong would invent some kind of a filter to remove
 304 static from our AM radio. I didn't think he'd start a
 305 revolution&#8212; start up a whole damn new industry to compete with
 306 RCA.<a href="#ftn.idp6901312" class="footnote" name="idp6901312"><sup class="footnote">[7]</sup></a>
 307 </p></blockquote></div><a class="indexterm" name="idxfmradio"></a><a class="indexterm" name="idp6916128"></a><p>
 308 Armstrong's invention threatened RCA's AM empire, so the company
 309 launched a campaign to smother FM radio. While FM may have been a
 310 superior technology, Sarnoff was a superior tactician.  As one author
 311 described,
 312 </p><a class="indexterm" name="idxlessinglawrence"></a><div class="blockquote"><blockquote class="blockquote"><p>
 313 The forces for FM, largely engineering, could not overcome the weight
 314 of strategy devised by the sales, patent, and legal offices to subdue
 315 this threat to corporate position. For FM, if allowed to develop
 316 unrestrained, posed &#8230; a complete reordering of radio power
 317 &#8230; and the eventual overthrow of the carefully restricted AM system
 318 on which RCA had grown to power.<a href="#ftn.idp6919696" class="footnote" name="idp6919696"><sup class="footnote">[8]</sup></a>
 319 </p></blockquote></div><a class="indexterm" name="idxfcconfmradio"></a><p>
 320 RCA at first kept the technology in house, insisting that further
 321 tests were needed. When, after two years of testing, Armstrong grew
 322 impatient, RCA began to use its power with the government to stall
 323 FM radio's deployment generally. In 1936, RCA hired the former head
 324 of the FCC and assigned him the task of assuring that the FCC assign
 325 spectrum in a way that would castrate FM&#8212;principally by moving FM
 326 radio to a different band of spectrum. At first, these efforts failed. But
 327 when Armstrong and the nation were distracted by World War II,
 328 RCA's work began to be more successful. Soon after the war ended, the
 329 FCC announced a set of policies that would have one clear effect: FM
 330 radio would be crippled. As Lawrence Lessing described it,
 331 </p><div class="blockquote"><blockquote class="blockquote"><p>
 332 The series of body blows that FM radio received right after the
 333 war, in a series of rulings manipulated through the FCC by the
 334 big radio interests, were almost incredible in their force and
 335 deviousness.<a href="#ftn.idp6924368" class="footnote" name="idp6924368"><sup class="footnote">[9]</sup></a>
 336 </p></blockquote></div><a class="indexterm" name="idp6925136"></a><a class="indexterm" name="idp6926000"></a><p>
 337 To make room in the spectrum for RCA's latest gamble, television,
 338 FM radio users were to be moved to a totally new spectrum band. The
 339 power of FM radio stations was also cut, meaning FM could no longer
 340 be used to beam programs from one part of the country to another.
 341 (This change was strongly supported by AT&amp;T, because the loss of
 342 FM relaying stations would mean radio stations would have to buy
 343 wired links from AT&amp;T.) The spread of FM radio was thus choked, at
 344 least temporarily.
 345 </p><a class="indexterm" name="idp6927776"></a><a class="indexterm" name="idp6928752"></a><p>
 346 Armstrong resisted RCA's efforts. In response, RCA resisted
 347 Armstrong's patents. After incorporating FM technology into the
 348 emerging standard for television, RCA declared the patents
 349 invalid&#8212;baselessly, and almost fifteen years after they were
 350 issued. It thus refused to pay him royalties. For six years, Armstrong
 351 fought an expensive war of litigation to defend the patents. Finally,
 352 just as the patents expired, RCA offered a settlement so low that it
 353 would not even cover Armstrong's lawyers' fees. Defeated, broken, and
 354 now broke, in 1954 Armstrong wrote a short note to his wife and then
 355 stepped out of a thirteenth-story window to his death.
 356 </p><a class="indexterm" name="idp6929984"></a><a class="indexterm" name="idp6931840"></a><a class="indexterm" name="idp6932816"></a><a class="indexterm" name="idp6933568"></a><p>
 357 This is how the law sometimes works. Not often this tragically, and
 358 rarely with heroic drama, but sometimes, this is how it works. From
 359 the beginning, government and government agencies have been subject to
 360 capture. They are more likely captured when a powerful interest is
 361 threatened by either a legal or technical change. That powerful
 362 interest too often exerts its influence within the government to get
 363 the government to protect it. The rhetoric of this protection is of
 364 course always public spirited; the reality is something
 365 different. Ideas that were as solid as rock in one age, but that, left
 366 to themselves, would crumble in
 367
 368 another, are sustained through this subtle corruption of our political
 369 process. RCA had what the Causbys did not: the power to stifle the
 370 effect of technological change.
 371 </p><a class="indexterm" name="idp6936432"></a><a class="indexterm" name="idp6937408"></a><a class="indexterm" name="idxinternetdevelopmentof"></a><p>
 372 <span class="strong"><strong>There's no</strong></span> single inventor of the Internet. Nor is there any good date
 373 upon which to mark its birth. Yet in a very short time, the Internet
 374 has become part of ordinary American life. According to the Pew
 375 Internet and American Life Project, 58 percent of Americans had access
 376 to the Internet in 2002, up from 49 percent two years
 377 before.<a href="#ftn.idp6941088" class="footnote" name="idp6941088"><sup class="footnote">[10]</sup></a>
 378 That number could well exceed two thirds of the nation by the end
 379 of 2004.
 380 </p><p>
 381 As the Internet has been integrated into ordinary life, it has
 382 changed things. Some of these changes are technical&#8212;the Internet has
 383 made communication faster, it has lowered the cost of gathering data,
 384 and so on. These technical changes are not the focus of this book. They
 385 are important. They are not well understood. But they are the sort of
 386 thing that would simply go away if we all just switched the Internet off.
 387 They don't affect people who don't use the Internet, or at least they
 388 don't affect them directly. They are the proper subject of a book about
 389 the Internet. But this is not a book about the Internet.
 390 </p><p>
 391 Instead, this book is about an effect of the Internet beyond the
 392 Internet itself: an effect upon how culture is made. My claim is that
 393 the Internet has induced an important and unrecognized change in that
 394 process. That change will radically transform a tradition that is as
 395 old as the Republic itself. Most, if they recognized this change,
 396 would reject it. Yet most don't even see the change that the Internet
 397 has introduced.
 398 </p><a class="indexterm" name="idp6944896"></a><a class="indexterm" name="idp6945872"></a><a class="indexterm" name="idxculturecommercialvsnoncommercial"></a><a class="indexterm" name="idp6948112"></a><p>
 399 We can glimpse a sense of this change by distinguishing between
 400 commercial and noncommercial culture, and by mapping the law's
 401 regulation of each. By <span class="quote">«<span class="quote">commercial culture</span>»</span> I mean that part of our
 402 culture that is produced and sold or produced to be sold. By
 403 <span class="quote">«<span class="quote">noncommercial culture</span>»</span> I mean all the rest. When old men sat around
 404 parks or on
 405
 406 street corners telling stories that kids and others consumed, that was
 407 noncommercial culture. When Noah Webster published his <span class="quote">«<span class="quote">Reader,</span>»</span> or
 408 Joel Barlow his poetry, that was commercial culture.
 409 </p><p>
 410 At the beginning of our history, and for just about the whole of our
 411 tradition, noncommercial culture was essentially unregulated. Of
 412 course, if your stories were lewd, or if your song disturbed the
 413 peace, then the law might intervene. But the law was never directly
 414 concerned with the creation or spread of this form of culture, and it
 415 left this culture <span class="quote">«<span class="quote">free.</span>»</span> The ordinary ways in which ordinary
 416 individuals shared and transformed their culture&#8212;telling
 417 stories, reenacting scenes from plays or TV, participating in fan
 418 clubs, sharing music, making tapes&#8212;were left alone by the law.
 419 </p><a class="indexterm" name="idxcopyrightinfringementlawsuitscommercialcreativityasprimarypurposeof"></a><p>
 420 The focus of the law was on commercial creativity. At first slightly,
 421 then quite extensively, the law protected the incentives of creators by
 422 granting them exclusive rights to their creative work, so that they could
 423 sell those exclusive rights in a commercial
 424 marketplace.<a href="#ftn.idp6954560" class="footnote" name="idp6954560"><sup class="footnote">[11]</sup></a>
 425 This is also, of course, an important part of creativity and culture,
 426 and it has become an increasingly important part in America. But in no
 427 sense was it dominant within our tradition. It was instead just one
 428 part, a controlled part, balanced with the free.
 429 </p><a class="indexterm" name="idp6957216"></a><a class="indexterm" name="idp6958224"></a><p>
 430 This rough divide between the free and the controlled has now
 431 been erased.<a href="#ftn.idp6959488" class="footnote" name="idp6959488"><sup class="footnote">[12]</sup></a>
 432 The Internet has set the stage for this erasure and, pushed by big
 433 media, the law has now affected it. For the first time in our
 434 tradition, the ordinary ways in which individuals create and share
 435 culture fall within the reach of the regulation of the law, which has
 436 expanded to draw within its control a vast amount of culture and
 437 creativity that it never reached before. The technology that preserved
 438 the balance of our history&#8212;between uses of our culture that were
 439 free and uses of our culture that were only upon permission&#8212;has
 440 been undone.  The consequence is that we are less and less a free
 441 culture, more and more a permission culture.
 442 </p><a class="indexterm" name="idp6961424"></a><a class="indexterm" name="idp6962992"></a><a class="indexterm" name="idp6963744"></a><p>
 443 This change gets justified as necessary to protect commercial
 444 creativity.  And indeed, protectionism is precisely its
 445 motivation. But the protectionism that justifies the changes that I
 446 will describe below is not the limited and balanced sort that has
 447 defined the law in the past. This is not a protectionism to protect
 448 artists. It is instead a protectionism to protect certain forms of
 449 business. Corporations threatened by the potential of the Internet to
 450 change the way both commercial and noncommercial culture are made and
 451 shared have united to induce lawmakers to use the law to protect
 452 them. It is the story of RCA and Armstrong; it is the dream of the
 453 Causbys.
 454 </p><a class="indexterm" name="idp6965568"></a><p>
 455 For the Internet has unleashed an extraordinary possibility for many
 456 to participate in the process of building and cultivating a culture
 457 that reaches far beyond local boundaries. That power has changed the
 458 marketplace for making and cultivating culture generally, and that
 459 change in turn threatens established content industries. The Internet
 460 is thus to the industries that built and distributed content in the
 461 twentieth century what FM radio was to AM radio, or what the truck was
 462 to the railroad industry of the nineteenth century: the beginning of
 463 the end, or at least a substantial transformation. Digital
 464 technologies, tied to the Internet, could produce a vastly more
 465 competitive and vibrant market for building and cultivating culture;
 466 that market could include a much wider and more diverse range of
 467 creators; those creators could produce and distribute a much more
 468 vibrant range of creativity; and depending upon a few important
 469 factors, those creators could earn more on average from this system
 470 than creators do today&#8212;all so long as the RCAs of our day don't
 471 use the law to protect themselves against this competition.
 472 </p><p>
 473 Yet, as I argue in the pages that follow, that is precisely what is
 474 happening in our culture today. These modern-day equivalents of the
 475 early twentieth-century radio or nineteenth-century railroads are
 476 using their power to get the law to protect them against this new,
 477 more efficient, more vibrant technology for building culture. They are
 478 succeeding in their plan to remake the Internet before the Internet
 479 remakes them.
 480 </p><a class="indexterm" name="idp6969008"></a><a class="indexterm" name="idp6969872"></a><p>
 481 It doesn't seem this way to many. The battles over copyright and the
 482
 483 Internet seem remote to most. To the few who follow them, they seem
 484 mainly about a much simpler brace of questions&#8212;whether <span class="quote">«<span class="quote">piracy</span>»</span> will
 485 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
 486 has been waged against the technologies of the Internet&#8212;what
 487 Motion Picture Association of America (MPAA) president Jack Valenti
 488 calls his <span class="quote">«<span class="quote">own terrorist war</span>»</span><a href="#ftn.idp6973104" class="footnote" name="idp6973104"><sup class="footnote">[13]</sup></a>&#8212;has been framed as a battle about the
 489 rule of law and respect for property. To know which side to take in this
 490 war, most think that we need only decide whether we're for property or
 491 against it.
 492 </p><p>
 493 If those really were the choices, then I would be with Jack Valenti
 494 and the content industry. I, too, am a believer in property, and
 495 especially in the importance of what Mr. Valenti nicely calls
 496 <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
 497 law, properly tuned, should punish <span class="quote">«<span class="quote">piracy,</span>»</span> whether on or off the
 498 Internet.
 499 </p><p>
 500 But those simple beliefs mask a much more fundamental question
 501 and a much more dramatic change. My fear is that unless we come to see
 502 this change, the war to rid the world of Internet <span class="quote">«<span class="quote">pirates</span>»</span> will also rid our
 503 culture of values that have been integral to our tradition from the start.
 504 </p><a class="indexterm" name="idp6977680"></a><a class="indexterm" name="idp6978688"></a><a class="indexterm" name="idp6979696"></a><a class="indexterm" name="idp6980448"></a><p>
 505 These values built a tradition that, for at least the first 180 years of
 506 our Republic, guaranteed creators the right to build freely upon their
 507 past, and protected creators and innovators from either state or private
 508 control. The First Amendment protected creators against state control.
 509 And as Professor Neil Netanel powerfully argues,<a href="#ftn.idp6981808" class="footnote" name="idp6981808"><sup class="footnote">[14]</sup></a>
 510 copyright law, properly balanced, protected creators against private
 511 control. Our tradition was thus neither Soviet nor the tradition of
 512 patrons. It instead carved out a wide berth within which creators
 513 could cultivate and extend our culture.
 514 </p><p>
 515 Yet the law's response to the Internet, when tied to changes in the
 516 technology of the Internet itself, has massively increased the
 517 effective regulation of creativity in America. To build upon or
 518 critique the culture around us one must ask, Oliver Twist&#8211;like,
 519 for permission first.  Permission is, of course, often
 520 granted&#8212;but it is not often granted to the critical or the
 521 independent. We have built a kind of cultural nobility; those within
 522 the noble class live easily; those outside it don't. But it is
 523 nobility of any form that is alien to our tradition.
 524 </p><p>
 525 The story that follows is about this war. It is not about the
 526 <span class="quote">«<span class="quote">centrality of technology</span>»</span> to ordinary life. I don't believe in gods,
 527 digital or otherwise. Nor is it an effort to demonize any individual
 528 or group, for neither do I believe in a devil, corporate or
 529 otherwise. It is not a morality tale. Nor is it a call to jihad
 530 against an industry.
 531 </p><p>
 532 It is instead an effort to understand a hopelessly destructive war
 533 inspired by the technologies of the Internet but reaching far beyond
 534 its code. And by understanding this battle, it is an effort to map
 535 peace.  There is no good reason for the current struggle around
 536 Internet technologies to continue. There will be great harm to our
 537 tradition and culture if it is allowed to continue unchecked. We must
 538 come to understand the source of this war. We must resolve it soon.
 539 </p><a class="indexterm" name="idp6987504"></a><a class="indexterm" name="idp6988256"></a><a class="indexterm" name="idxintellectualpropertyrights"></a><p>
 540 <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
 541 property of this war is not as tangible as the Causbys', and no
 542 innocent chicken has yet to lose its life. Yet the ideas surrounding
 543 this <span class="quote">«<span class="quote">property</span>»</span> are as obvious to most as the Causbys' claim about the
 544 sacredness of their farm was to them. We are the Causbys. Most of us
 545 take for granted the extraordinarily powerful claims that the owners
 546 of <span class="quote">«<span class="quote">intellectual property</span>»</span> now assert. Most of us, like the Causbys,
 547 treat these claims as obvious. And hence we, like the Causbys, object
 548 when a new technology interferes with this property. It is as plain to
 549 us as it was to them that the new technologies of the Internet are
 550 <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
 551 us as it was to them that the law should intervene to stop this
 552 trespass.
 553 </p><a class="indexterm" name="idp6993920"></a><a class="indexterm" name="idp6994672"></a><a class="indexterm" name="idp6995424"></a><p>
 554 And thus, when geeks and technologists defend their Armstrong or
 555 Wright brothers technology, most of us are simply unsympathetic.
 556 Common sense does not revolt. Unlike in the case of the unlucky
 557 Causbys, common sense is on the side of the property owners in this
 558 war. Unlike
 559
 560 the lucky Wright brothers, the Internet has not inspired a revolution
 561 on its side.
 562 </p><a class="indexterm" name="idp6997200"></a><p>
 563 My hope is to push this common sense along. I have become increasingly
 564 amazed by the power of this idea of intellectual property and, more
 565 importantly, its power to disable critical thought by policy makers
 566 and citizens. There has never been a time in our history when more of
 567 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
 568 been a time when the concentration of power to control the
 569 <span class="emphasis"><em>uses</em></span> of culture has been as unquestioningly
 570 accepted as it is now.
 571 </p><p>
 572 The puzzle is, Why?  Is it because we have come to understand a truth
 573 about the value and importance of absolute property over ideas and
 574 culture? Is it because we have discovered that our tradition of
 575 rejecting such an absolute claim was wrong?
 576 </p><p>
 577 Or is it because the idea of absolute property over ideas and culture
 578 benefits the RCAs of our time and fits our own unreflective intuitions?
 579 </p><p>
 580 Is the radical shift away from our tradition of free culture an instance
 581 of America correcting a mistake from its past, as we did after a bloody
 582 war with slavery, and as we are slowly doing with inequality? Or is the
 583 radical shift away from our tradition of free culture yet another example
 584 of a political system captured by a few powerful special interests?
 585 </p><p>
 586 Does common sense lead to the extremes on this question because common
 587 sense actually believes in these extremes? Or does common sense stand
 588 silent in the face of these extremes because, as with Armstrong versus
 589 RCA, the more powerful side has ensured that it has the more powerful
 590 view?
 591 </p><a class="indexterm" name="idp7002544"></a><a class="indexterm" name="idp7003296"></a><p>
 592 I don't mean to be mysterious. My own views are resolved. I believe it
 593 was right for common sense to revolt against the extremism of the
 594 Causbys. I believe it would be right for common sense to revolt
 595 against the extreme claims made today on behalf of <span class="quote">«<span class="quote">intellectual
 596 property.</span>»</span>  What the law demands today is increasingly as silly as a
 597 sheriff arresting an airplane for trespass. But the consequences of
 598 this silliness will be much more profound.
 599
 600 </p><a class="indexterm" name="idp7005536"></a><p>
 601 <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
 602 <span class="quote">«<span class="quote">property.</span>»</span> My aim in this book's next two parts is to explore these two
 603 ideas.
 604 </p><p>
 605 My method is not the usual method of an academic. I don't want to
 606 plunge you into a complex argument, buttressed with references to
 607 obscure French theorists&#8212;however natural that is for the weird
 608 sort we academics have become. Instead I begin in each part with a
 609 collection of stories that set a context within which these apparently
 610 simple ideas can be more fully understood.
 611 </p><p>
 612 The two sections set up the core claim of this book: that while the
 613 Internet has indeed produced something fantastic and new, our
 614 government, pushed by big media to respond to this <span class="quote">«<span class="quote">something new,</span>»</span> is
 615 destroying something very old. Rather than understanding the changes
 616 the Internet might permit, and rather than taking time to let <span class="quote">«<span class="quote">common
 617 sense</span>»</span> resolve how best to respond, we are allowing those most
 618 threatened by the changes to use their power to change the
 619 law&#8212;and more importantly, to use their power to change something
 620 fundamental about who we have always been.
 621 </p><p>
 622 We allow this, I believe, not because it is right, and not because
 623 most of us really believe in these changes. We allow it because the
 624 interests most threatened are among the most powerful players in our
 625 depressingly compromised process of making law. This book is the story
 626 of one more consequence of this form of corruption&#8212;a consequence
 627 to which most of us remain oblivious.
 628 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp168000" class="footnote"><p><a href="#idp168000" class="para"><sup class="para">[4] </sup></a>
 629 St. George Tucker, <em class="citetitle">Blackstone's Commentaries</em> 3 (South Hackensack, N.J.:
 630 Rothman Reprints, 1969), 18.
 631 </p></div><div id="ftn.idp6875120" class="footnote"><p><a href="#idp6875120" class="para"><sup class="para">[5] </sup></a>
 632 United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find
 633 that there could be a <span class="quote">«<span class="quote">taking</span>»</span> if the government's use of its land
 634 effectively destroyed the value of the Causbys' land. This example was
 635 suggested to me by Keith Aoki's wonderful piece, <span class="quote">«<span class="quote">(Intellectual)
 636 Property and Sovereignty: Notes Toward a Cultural Geography of
 637 Authorship,</span>»</span> <em class="citetitle">Stanford Law Review</em> 48 (1996): 1293, 1333. See also Paul
 638 Goldstein, <em class="citetitle">Real Property</em> (Mineola, N.Y.: Foundation Press, 1984),
 639 1112&#8211;13.
 640 <a class="indexterm" name="idp6878464"></a>
 641 <a class="indexterm" name="idp6878080"></a>
 642 </p></div><div id="ftn.idp6904640" class="footnote"><p><a href="#idp6904640" class="para"><sup class="para">[6] </sup></a>
 643 Lawrence Lessing, <em class="citetitle">Man of High Fidelity: Edwin Howard Armstrong</em>
 644 (Philadelphia: J. B. Lipincott Company, 1956), 209.
 645 </p></div><div id="ftn.idp6901312" class="footnote"><p><a href="#idp6901312" class="para"><sup class="para">[7] </sup></a> See <span class="quote">«<span class="quote">Saints: The Heroes and Geniuses of the
 646 Electronic Era,</span>»</span> First Electronic Church of America, at
 647 www.webstationone.com/fecha, available at
 648
 649 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #1</a>.
 650 </p></div><div id="ftn.idp6919696" class="footnote"><p><a href="#idp6919696" class="para"><sup class="para">[8] </sup></a>Lessing, 226.
 651 </p></div><div id="ftn.idp6924368" class="footnote"><p><a href="#idp6924368" class="para"><sup class="para">[9] </sup></a>
 652 Lessing, 256.
 653 </p></div><div id="ftn.idp6941088" class="footnote"><p><a href="#idp6941088" class="para"><sup class="para">[10] </sup></a>
 654 Amanda Lenhart, <span class="quote">«<span class="quote">The Ever-Shifting Internet Population: A New Look at
 655 Internet Access and the Digital Divide,</span>»</span> Pew Internet and American
 656 Life Project, 15 April 2003: 6, available at
 657 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #2</a>.
 658 </p></div><div id="ftn.idp6954560" class="footnote"><p><a href="#idp6954560" class="para"><sup class="para">[11] </sup></a>
 659 This is not the only purpose of copyright, though it is the overwhelmingly
 660 primary purpose of the copyright established in the federal constitution.
 661 State copyright law historically protected not just the commercial interest in
 662 publication, but also a privacy interest. By granting authors the exclusive
 663 right to first publication, state copyright law gave authors the power to
 664 control the spread of facts about them. See Samuel D. Warren and Louis
 665 D. Brandeis, <span class="quote">«<span class="quote">The Right to Privacy,</span>»</span> Harvard Law Review 4 (1890): 193,
 666 198&#8211;200.
 667 <a class="indexterm" name="idp6878336"></a>
 668 </p></div><div id="ftn.idp6959488" class="footnote"><p><a href="#idp6959488" class="para"><sup class="para">[12] </sup></a>
 669 See Jessica Litman, <em class="citetitle">Digital Copyright</em> (New York: Prometheus Books,
 670 2001), ch. 13.
 671 <a class="indexterm" name="idp6960256"></a>
 672 </p></div><div id="ftn.idp6973104" class="footnote"><p><a href="#idp6973104" class="para"><sup class="para">[13] </sup></a>
 673 Amy Harmon, <span class="quote">«<span class="quote">Black Hawk Download: Moving Beyond Music, Pirates
 674 Use New Tools to Turn the Net into an Illicit Video Club,</span>»</span> <em class="citetitle">New York
 675 Times</em>, 17 January 2002.
 676 </p></div><div id="ftn.idp6981808" class="footnote"><p><a href="#idp6981808" class="para"><sup class="para">[14] </sup></a>
 677 Neil W. Netanel, <span class="quote">«<span class="quote">Copyright and a Democratic Civil Society,</span>»</span> <em class="citetitle">Yale Law
 678 Journal</em> 106 (1996): 283.
 679 <a class="indexterm" name="idp6983088"></a>
 680 </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="idp7013616"></a><a class="indexterm" name="idxmansfieldwilliammurraylord"></a><a class="indexterm" name="idp7015856"></a><a class="indexterm" name="idp7016608"></a><p>
 681 <span class="strong"><strong>Since the inception</strong></span> of the law regulating creative property, there has
 682 been a war against <span class="quote">«<span class="quote">piracy.</span>»</span> The precise contours of this concept,
 683 <span class="quote">«<span class="quote">piracy,</span>»</span> are hard to sketch, but the animating injustice is easy to
 684 capture.  As Lord Mansfield wrote in a case that extended the reach of
 685 English copyright law to include sheet music,
 686 </p><div class="blockquote"><blockquote class="blockquote"><p>
 687 A person may use the copy by playing it, but he has no right to
 688 rob the author of the profit, by multiplying copies and disposing
 689 of them for his own use.<a href="#ftn.idp7020016" class="footnote" name="idp7020016"><sup class="footnote">[15]</sup></a>
 690 </p><a class="indexterm" name="idp7021680"></a></blockquote></div><a class="indexterm" name="idp7022784"></a><a class="indexterm" name="idxpeertopeerppfilesharingefficiencyof"></a><p>
 691 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
 692 Internet has provoked this war. The Internet makes possible the
 693 efficient spread of content. Peer-to-peer (p2p) file sharing is among
 694 the most efficient of the efficient technologies the Internet
 695 enables. Using distributed intelligence, p2p systems facilitate the
 696 easy spread of content in a way unimagined a generation ago.
 697
 698 </p><p>
 699 This efficiency does not respect the traditional lines of copyright.
 700 The network doesn't discriminate between the sharing of copyrighted
 701 and uncopyrighted content. Thus has there been a vast amount of
 702 sharing of copyrighted content. That sharing in turn has excited the
 703 war, as copyright owners fear the sharing will <span class="quote">«<span class="quote">rob the author of the
 704 profit.</span>»</span>
 705 </p><a class="indexterm" name="idp7028144"></a><p>
 706 The warriors have turned to the courts, to the legislatures, and
 707 increasingly to technology to defend their <span class="quote">«<span class="quote">property</span>»</span> against this
 708 <span class="quote">«<span class="quote">piracy.</span>»</span>  A generation of Americans, the warriors warn, is being
 709 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,
 710 never mind body piercing&#8212;our kids are becoming
 711 <span class="emphasis"><em>thieves</em></span>!
 712 </p><p>
 713 There's no doubt that <span class="quote">«<span class="quote">piracy</span>»</span> is wrong, and that pirates should be
 714 punished. But before we summon the executioners, we should put this
 715 notion of <span class="quote">«<span class="quote">piracy</span>»</span> in some context. For as the concept is increasingly
 716 used, at its core is an extraordinary idea that is almost certainly wrong.
 717 </p><p>
 718 The idea goes something like this:
 719 </p><div class="blockquote"><blockquote class="blockquote"><p>
 720 Creative work has value; whenever I use, or take, or build upon
 721 the creative work of others, I am taking from them something of
 722 value. Whenever I take something of value from someone else, I
 723 should have their permission. The taking of something of value
 724 from someone else without permission is wrong. It is a form of
 725 piracy.
 726 </p></blockquote></div><a class="indexterm" name="idp7034560"></a><a class="indexterm" name="idp7035312"></a><a class="indexterm" name="idp7036064"></a><a class="indexterm" name="idxcreativepropertyifvaluethenrighttheoryof"></a><a class="indexterm" name="idxifvaluethenrighttheory"></a><p>
 727 This view runs deep within the current debates. It is what NYU law
 728 professor Rochelle Dreyfuss criticizes as the <span class="quote">«<span class="quote">if value, then right</span>»</span>
 729 theory of creative property<a href="#ftn.idp7040816" class="footnote" name="idp7040816"><sup class="footnote">[16]</sup></a>
 730 &#8212;if there is value, then someone must have a
 731 right to that value. It is the perspective that led a composers' rights
 732 organization, ASCAP, to sue the Girl Scouts for failing to pay for the
 733 songs that girls sang around Girl Scout campfires.<a href="#ftn.idp7031136" class="footnote" name="idp7031136"><sup class="footnote">[17]</sup></a>
 734 There was <span class="quote">«<span class="quote">value</span>»</span> (the songs) so there must have been a
 735 <span class="quote">«<span class="quote">right</span>»</span>&#8212;even against the Girl Scouts.
 736 </p><a class="indexterm" name="idp7047280"></a><p>
 737 This idea is certainly a possible understanding of how creative
 738 property should work. It might well be a possible design for a system
 739
 740 of law protecting creative property. But the <span class="quote">«<span class="quote">if value, then right</span>»</span>
 741 theory of creative property has never been America's theory of
 742 creative property.  It has never taken hold within our law.
 743 </p><a class="indexterm" name="idp7049568"></a><a class="indexterm" name="idxcopyrightlawonrepublishingvstransformationoforiginalwork"></a><a class="indexterm" name="idxcreativitylegalrestrictionson"></a><p>
 744 Instead, in our tradition, intellectual property is an instrument. It
 745 sets the groundwork for a richly creative society but remains
 746 subservient to the value of creativity. The current debate has this
 747 turned around. We have become so concerned with protecting the
 748 instrument that we are losing sight of the value.
 749 </p><p>
 750 The source of this confusion is a distinction that the law no longer
 751 takes care to draw&#8212;the distinction between republishing someone's
 752 work on the one hand and building upon or transforming that work on
 753 the other. Copyright law at its birth had only publishing as its concern;
 754 copyright law today regulates both.
 755 </p><a class="indexterm" name="idp7055072"></a><p>
 756 Before the technologies of the Internet, this conflation didn't matter
 757 all that much. The technologies of publishing were expensive; that
 758 meant the vast majority of publishing was commercial. Commercial
 759 entities could bear the burden of the law&#8212;even the burden of the
 760 Byzantine complexity that copyright law has become. It was just one
 761 more expense of doing business.
 762 </p><a class="indexterm" name="idp7056192"></a><a class="indexterm" name="idp7057728"></a><a class="indexterm" name="idp7058480"></a><p>
 763 But with the birth of the Internet, this natural limit to the reach of
 764 the law has disappeared. The law controls not just the creativity of
 765 commercial creators but effectively that of anyone. Although that
 766 expansion would not matter much if copyright law regulated only
 767 <span class="quote">«<span class="quote">copying,</span>»</span> when the law regulates as broadly and obscurely as it does,
 768 the extension matters a lot. The burden of this law now vastly
 769 outweighs any original benefit&#8212;certainly as it affects
 770 noncommercial creativity, and increasingly as it affects commercial
 771 creativity as well. Thus, as we'll see more clearly in the chapters
 772 below, the law's role is less and less to support creativity, and more
 773 and more to protect certain industries against competition. Just at
 774 the time digital technology could unleash an extraordinary range of
 775 commercial and noncommercial creativity, the law burdens this
 776 creativity with insanely complex and vague rules and with the threat
 777 of obscenely severe penalties. We may
 778
 779 be seeing, as Richard Florida writes, the <span class="quote">«<span class="quote">Rise of the Creative
 780 Class.</span>»</span><a href="#ftn.idp7062128" class="footnote" name="idp7062128"><sup class="footnote">[18]</sup></a>
 781 Unfortunately, we are also seeing an extraordinary rise of regulation of
 782 this creative class.
 783 </p><a class="indexterm" name="idp7065568"></a><p>
 784 These burdens make no sense in our tradition. We should begin by
 785 understanding that tradition a bit more and by placing in their proper
 786 context the current battles about behavior labeled <span class="quote">«<span class="quote">piracy.</span>»</span>
 787 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7020016" class="footnote"><p><a href="#idp7020016" class="para"><sup class="para">[15] </sup></a>
 788
 789 <em class="citetitle">Bach</em> v. <em class="citetitle">Longman</em>, 98 Eng. Rep. 1274 (1777) (Mansfield).
 790 </p></div><div id="ftn.idp7040816" class="footnote"><p><a href="#idp7040816" class="para"><sup class="para">[16] </sup></a>
 791
 792 See Rochelle Dreyfuss, <span class="quote">«<span class="quote">Expressive Genericity: Trademarks as Language
 793 in the Pepsi Generation,</span>»</span> <em class="citetitle">Notre Dame Law Review</em> 65 (1990): 397.
 794 </p></div><div id="ftn.idp7031136" class="footnote"><p><a href="#idp7031136" class="para"><sup class="para">[17] </sup></a>
 795
 796 Lisa Bannon, <span class="quote">«<span class="quote">The Birds May Sing, but Campers Can't Unless They Pay
 797 Up,</span>»</span> <em class="citetitle">Wall Street Journal</em>, 21 August 1996, available at
 798 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #3</a>; Jonathan
 799 Zittrain, <span class="quote">«<span class="quote">Calling Off the Copyright War: In Battle of Property vs. Free
 800 Speech, No One Wins,</span>»</span> <em class="citetitle">Boston Globe</em>, 24 November 2002.
 801 <a class="indexterm" name="idp7045504"></a>
 802 </p></div><div id="ftn.idp7062128" class="footnote"><p><a href="#idp7062128" class="para"><sup class="para">[18] </sup></a>
 803
 804 In <em class="citetitle">The Rise of the Creative Class</em> (New York:
 805 Basic Books, 2002), Richard Florida documents a shift in the nature of
 806 labor toward a labor of creativity.  His work, however, doesn't
 807 directly address the legal conditions under which that creativity is
 808 enabled or stifled. I certainly agree with him about the importance
 809 and significance of this change, but I also believe the conditions
 810 under which it will be enabled are much more tenuous.
 811
 812 <a class="indexterm" name="idp7063696"></a>
 813 <a class="indexterm" name="idp7064448"></a>
 814 </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>
 815 <span class="strong"><strong>In 1928</strong></span>, a cartoon character was born. An early Mickey Mouse
 816 made his debut in May of that year, in a silent flop called <em class="citetitle">Plane Crazy</em>.
 817 In November, in New York City's Colony Theater, in the first widely
 818 distributed cartoon synchronized with sound, <em class="citetitle">Steamboat Willie</em> brought
 819 to life the character that would become Mickey Mouse.
 820 </p><a class="indexterm" name="idxdisneywalt"></a><p>
 821 Synchronized sound had been introduced to film a year earlier in the
 822 movie <em class="citetitle">The Jazz Singer</em>. That success led Walt Disney to copy the
 823 technique and mix sound with cartoons. No one knew whether it would
 824 work or, if it did work, whether it would win an audience. But when
 825 Disney ran a test in the summer of 1928, the results were unambiguous.
 826 As Disney describes that first experiment,
 827 </p><div class="blockquote"><blockquote class="blockquote"><p>
 828 A couple of my boys could read music, and one of them could play
 829 a mouth organ. We put them in a room where they could not see
 830 the screen and arranged to pipe their sound into the room where
 831 our wives and friends were going to see the picture.
 832
 833 </p><p>
 834 The boys worked from a music and sound-effects score. After several
 835 false starts, sound and action got off with the gun. The mouth
 836 organist played the tune, the rest of us in the sound department
 837 bammed tin pans and blew slide whistles on the beat.  The
 838 synchronization was pretty close.
 839 </p><p>
 840 The effect on our little audience was nothing less than electric.
 841 They responded almost instinctively to this union of sound and
 842 motion. I thought they were kidding me. So they put me in the audience
 843 and ran the action again. It was terrible, but it was wonderful! And
 844 it was something new!<a href="#ftn.idp7082272" class="footnote" name="idp7082272"><sup class="footnote">[19]</sup></a>
 845 </p></blockquote></div><a class="indexterm" name="idp7083680"></a><p>
 846 Disney's then partner, and one of animation's most extraordinary
 847 talents, Ub Iwerks, put it more strongly: <span class="quote">«<span class="quote">I have never been so thrilled
 848 in my life. Nothing since has ever equaled it.</span>»</span>
 849 </p><p>
 850 Disney had created something very new, based upon something relatively
 851 new. Synchronized sound brought life to a form of creativity that had
 852 rarely&#8212;except in Disney's hands&#8212;been anything more than
 853 filler for other films. Throughout animation's early history, it was
 854 Disney's invention that set the standard that others struggled to
 855 match.  And quite often, Disney's great genius, his spark of
 856 creativity, was built upon the work of others.
 857 </p><a class="indexterm" name="idp7085680"></a><a class="indexterm" name="idxkeatonbuster"></a><a class="indexterm" name="idxsteamboatbilljr"></a><p>
 858 This much is familiar. What you might not know is that 1928 also marks
 859 another important transition. In that year, a comic (as opposed to
 860 cartoon) genius created his last independently produced silent film.
 861 That genius was Buster Keaton. The film was <em class="citetitle">Steamboat Bill, Jr</em>.
 862 </p><p>
 863 Keaton was born into a vaudeville family in 1895. In the era of silent
 864 film, he had mastered using broad physical comedy as a way to spark
 865 uncontrollable laughter from his audience. <em class="citetitle">Steamboat Bill,
 866 Jr</em>. was a classic of this form, famous among film buffs for its
 867 incredible stunts.  The film was classic Keaton&#8212;wildly popular
 868 and among the best of its genre.
 869 </p><a class="indexterm" name="idxderivativeworkspiracyvs"></a><a class="indexterm" name="idxpiracyderivativeworkvs"></a><p>
 870 <em class="citetitle">Steamboat Bill, Jr</em>. appeared before Disney's cartoon Steamboat
 871 Willie.
 872
 873 The coincidence of titles is not coincidental. Steamboat Willie is a
 874 direct cartoon parody of Steamboat Bill,<a href="#ftn.idp7095920" class="footnote" name="idp7095920"><sup class="footnote">[20]</sup></a>
 875 and both are built upon a common song as a source. It is not just from
 876 the invention of synchronized sound in <em class="citetitle">The Jazz Singer</em> that we
 877 get <em class="citetitle">Steamboat Willie</em>. It is also from Buster Keaton's invention of
 878 Steamboat Bill, Jr., itself inspired by the song <span class="quote">«<span class="quote">Steamboat Bill,</span>»</span>
 879 that we get Steamboat Willie, and then from Steamboat Willie, Mickey
 880 Mouse.
 881 </p><a class="indexterm" name="idp7101968"></a><a class="indexterm" name="idp7102944"></a><a class="indexterm" name="idp7103920"></a><a class="indexterm" name="idp7104896"></a><a class="indexterm" name="idxcreativitybytransformingpreviousworks"></a><a class="indexterm" name="idxdisneyinc"></a><p>
 882 This <span class="quote">«<span class="quote">borrowing</span>»</span> was nothing unique, either for Disney or for the
 883 industry. Disney was always parroting the feature-length mainstream
 884 films of his day.<a href="#ftn.idp7109376" class="footnote" name="idp7109376"><sup class="footnote">[21]</sup></a>
 885 So did many others. Early cartoons are filled with
 886 knockoffs&#8212;slight variations on winning themes; retellings of
 887 ancient stories. The key to success was the brilliance of the
 888 differences. With Disney, it was sound that gave his animation its
 889 spark. Later, it was the quality of his work relative to the
 890 production-line cartoons with which he competed. Yet these additions
 891 were built upon a base that was borrowed.  Disney added to the work of
 892 others before him, creating something new out of something just barely
 893 old.
 894 </p><a class="indexterm" name="idxgrimmfairytales"></a><p>
 895 Sometimes this borrowing was slight. Sometimes it was significant.
 896 Think about the fairy tales of the Brothers Grimm. If you're as
 897 oblivious as I was, you're likely to think that these tales are happy,
 898 sweet stories, appropriate for any child at bedtime. In fact, the
 899 Grimm fairy tales are, well, for us, grim. It is a rare and perhaps
 900 overly ambitious parent who would dare to read these bloody,
 901 moralistic stories to his or her child, at bedtime or anytime.
 902 </p><p>
 903 Disney took these stories and retold them in a way that carried them
 904 into a new age. He animated the stories, with both characters and
 905 light. Without removing the elements of fear and danger altogether, he
 906 made funny what was dark and injected a genuine emotion of compassion
 907 where before there was fear. And not just with the work of the
 908 Brothers Grimm. Indeed, the catalog of Disney work drawing upon the
 909 work of others is astonishing when set together: <em class="citetitle">Snow White</em>
 910 (1937), <em class="citetitle">Fantasia</em> (1940), <em class="citetitle">Pinocchio</em> (1940), <em class="citetitle">Dumbo</em>
 911 (1941), <em class="citetitle">Bambi</em> (1942), <em class="citetitle">Song of the South</em> (1946),
 912 <em class="citetitle">Cinderella</em> (1950), <em class="citetitle">Alice in Wonderland</em> (1951), <em class="citetitle">Robin
 913 Hood</em> (1952), <em class="citetitle">Peter Pan</em> (1953), <em class="citetitle">Lady and the Tramp</em>
 914
 915 (1955), <em class="citetitle">Mulan</em> (1998), <em class="citetitle">Sleeping Beauty</em> (1959), <em class="citetitle">101
 916 Dalmatians</em> (1961), <em class="citetitle">The Sword in the Stone</em> (1963), and
 917 <em class="citetitle">The Jungle Book</em> (1967)&#8212;not to mention a recent example
 918 that we should perhaps quickly forget, <em class="citetitle">Treasure Planet</em>
 919 (2003). In all of these cases, Disney (or Disney, Inc.) ripped
 920 creativity from the culture around him, mixed that creativity with his
 921 own extraordinary talent, and then burned that mix into the soul of
 922 his culture. Rip, mix, and burn.
 923 </p><a class="indexterm" name="idp7122080"></a><p>
 924 This is a kind of creativity. It is a creativity that we should
 925 remember and celebrate. There are some who would say that there is no
 926 creativity except this kind. We don't need to go that far to recognize
 927 its importance. We could call this <span class="quote">«<span class="quote">Disney creativity,</span>»</span> though that
 928 would be a bit misleading. It is, more precisely, <span class="quote">«<span class="quote">Walt Disney
 929 creativity</span>»</span>&#8212;a form of expression and genius that builds upon the
 930 culture around us and makes it something different.
 931 </p><a class="indexterm" name="idp7124592"></a><a class="indexterm" name="idp7125568"></a><a class="indexterm" name="idp7126544"></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
 932 relatively fresh. The public domain in 1928 was not very old and was
 933 therefore quite vibrant. The average term of copyright was just around
 934 thirty years&#8212;for that minority of creative work that was in fact
 935 copyrighted.<a href="#ftn.idp7124208" class="footnote" name="idp7124208"><sup class="footnote">[22]</sup></a>
 936 That means that for thirty years, on average, the authors or
 937 copyright holders of a creative work had an <span class="quote">«<span class="quote">exclusive right</span>»</span> to control
 938 certain uses of the work. To use this copyrighted work in limited ways
 939 required the permission of the copyright owner.
 940 </p><p>
 941 At the end of a copyright term, a work passes into the public domain.
 942 No permission is then needed to draw upon or use that work. No
 943 permission and, hence, no lawyers. The public domain is a <span class="quote">«<span class="quote">lawyer-free
 944 zone.</span>»</span> Thus, most of the content from the nineteenth century was free
 945 for Disney to use and build upon in 1928. It was free for
 946 anyone&#8212; whether connected or not, whether rich or not, whether
 947 approved or not&#8212;to use and build upon.
 948 </p><a class="indexterm" name="idp7136560"></a><a class="indexterm" name="idp7137920"></a><p>
 949 This is the ways things always were&#8212;until quite recently. For most
 950 of our history, the public domain was just over the horizon. From
 951 until 1978, the average copyright term was never more than thirty-two
 952 years, meaning that most culture just a generation and a half old was
 953
 954
 955 free for anyone to build upon without the permission of anyone else.
 956 Today's equivalent would be for creative work from the 1960s and 1970s
 957 to now be free for the next Walt Disney to build upon without
 958 permission. Yet today, the public domain is presumptive only for
 959 content from before the Great Depression.
 960 </p><a class="indexterm" name="idp7140144"></a><a class="indexterm" name="idp7141120"></a><a class="indexterm" name="idp7142096"></a><a class="indexterm" name="idp7143072"></a><a class="indexterm" name="idp7144048"></a><a class="indexterm" name="idp7145024"></a><p>
 961 <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>
 962 Nor does America. The norm of free culture has, until recently, and
 963 except within totalitarian nations, been broadly exploited and quite
 964 universal.
 965 </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>
 966 Consider, for example, a form of creativity that seems strange to many
 967 Americans but that is inescapable within Japanese culture: <em class="citetitle">manga</em>, or
 968 comics. The Japanese are fanatics about comics. Some 40 percent of
 969 publications are comics, and 30 percent of publication revenue derives
 970 from comics. They are everywhere in Japanese society, at every
 971 magazine stand, carried by a large proportion of commuters on Japan's
 972 extraordinary system of public transportation.
 973 </p><p>
 974 Americans tend to look down upon this form of culture. That's an
 975 unattractive characteristic of ours. We're likely to misunderstand
 976 much about manga, because few of us have ever read anything close to
 977 the stories that these <span class="quote">«<span class="quote">graphic novels</span>»</span> tell. For the Japanese, manga
 978 cover every aspect of social life. For us, comics are <span class="quote">«<span class="quote">men in tights.</span>»</span>
 979 And anyway, it's not as if the New York subways are filled with
 980 readers of Joyce or even Hemingway. People of different cultures
 981 distract themselves in different ways, the Japanese in this
 982 interestingly different way.
 983 </p><p>
 984 But my purpose here is not to understand manga. It is to describe a
 985 variant on manga that from a lawyer's perspective is quite odd, but
 986 from a Disney perspective is quite familiar.
 987 </p><a class="indexterm" name="idxcreativitybytransformingpreviousworks2"></a><a class="indexterm" name="idxdoujinshicomics"></a><p>
 988 This is the phenomenon of <em class="citetitle">doujinshi</em>. Doujinshi are also comics, but
 989 they are a kind of copycat comic. A rich ethic governs the creation of
 990 doujinshi. It is not doujinshi if it is <span class="emphasis"><em>just</em></span> a
 991 copy; the artist must make a contribution to the art he copies, by
 992 transforming it either subtly or
 993
 994 significantly. A doujinshi comic can thus take a mainstream comic and
 995 develop it differently&#8212;with a different story line. Or the comic can
 996 keep the character in character but change its look slightly. There is no
 997 formula for what makes the doujinshi sufficiently <span class="quote">«<span class="quote">different.</span>»</span> But they
 998 must be different if they are to be considered true doujinshi. Indeed,
 999 there are committees that review doujinshi for inclusion within shows
1000 and reject any copycat comic that is merely a copy.
1001 </p><a class="indexterm" name="idxdisneywalt2"></a><p>
1002 These copycat comics are not a tiny part of the manga market. They are
1003 huge. More than 33,000 <span class="quote">«<span class="quote">circles</span>»</span> of creators from across Japan produce
1004 these bits of Walt Disney creativity. More than 450,000 Japanese come
1005 together twice a year, in the largest public gathering in the country,
1006 to exchange and sell them. This market exists in parallel to the
1007 mainstream commercial manga market. In some ways, it obviously
1008 competes with that market, but there is no sustained effort by those
1009 who control the commercial manga market to shut the doujinshi market
1010 down. It flourishes, despite the competition and despite the law.
1011 </p><a class="indexterm" name="idxcopyrightlawjapanese"></a><a class="indexterm" name="idp7166880"></a><p>
1012 The most puzzling feature of the doujinshi market, for those trained
1013 in the law, at least, is that it is allowed to exist at all. Under
1014 Japanese copyright law, which in this respect (on paper) mirrors
1015 American copyright law, the doujinshi market is an illegal
1016 one. Doujinshi are plainly <span class="quote">«<span class="quote">derivative works.</span>»</span> There is no general
1017 practice by doujinshi artists of securing the permission of the manga
1018 creators. Instead, the practice is simply to take and modify the
1019 creations of others, as Walt Disney did with <em class="citetitle">Steamboat Bill,
1020 Jr</em>. Under both Japanese and American law, that <span class="quote">«<span class="quote">taking</span>»</span> without
1021 the permission of the original copyright owner is illegal. It is an
1022 infringement of the original copyright to make a copy or a derivative
1023 work without the original copyright owner's permission.
1024 </p><a class="indexterm" name="idp7169920"></a><a class="indexterm" name="idxwinickjudd"></a><p>
1025 Yet this illegal market exists and indeed flourishes in Japan, and in
1026 the view of many, it is precisely because it exists that Japanese manga
1027 flourish. As American graphic novelist Judd Winick said to me, <span class="quote">«<span class="quote">The
1028 early days of comics in America are very much like what's going on
1029 in Japan now. &#8230; American  comics were born out of copying each
1030
1031 other. &#8230; That's how [the artists] learn to draw &#8212; by going into comic
1032 books and not tracing them, but looking at them and copying them</span>»</span>
1033 and building from them.<a href="#ftn.idp7173664" class="footnote" name="idp7173664"><sup class="footnote">[23]</sup></a>
1034 </p><a class="indexterm" name="idp7174944"></a><a class="indexterm" name="idp7175920"></a><p>
1035 American comics now are quite different, Winick explains, in part
1036 because of the legal difficulty of adapting comics the way doujinshi are
1037 allowed. Speaking of Superman, Winick told me, <span class="quote">«<span class="quote">there are these rules
1038 and you have to stick to them.</span>»</span> There are things Superman <span class="quote">«<span class="quote">cannot</span>»</span>
1039 do. <span class="quote">«<span class="quote">As a creator, it's frustrating having to stick to some parameters
1040 which are fifty years old.</span>»</span>
1041 </p><a class="indexterm" name="idp7178528"></a><a class="indexterm" name="idxcopyrightlawjapanese2"></a><a class="indexterm" name="idp7180992"></a><a class="indexterm" name="idxmehrasalil"></a><p>
1042 The norm in Japan mitigates this legal difficulty. Some say it is
1043 precisely the benefit accruing to the Japanese manga market that
1044 explains the mitigation. Temple University law professor Salil Mehra,
1045 for example, hypothesizes that the manga market accepts these
1046 technical violations because they spur the manga market to be more
1047 wealthy and productive. Everyone would be worse off if doujinshi were
1048 banned, so the law does not ban doujinshi.<a href="#ftn.idp7183696" class="footnote" name="idp7183696"><sup class="footnote">[24]</sup></a>
1049 </p><a class="indexterm" name="idp7186224"></a><a class="indexterm" name="idp7187200"></a><a class="indexterm" name="idp7188176"></a><p>
1050 The problem with this story, however, as Mehra plainly acknowledges,
1051 is that the mechanism producing this laissez faire response is not
1052 clear. It may well be that the market as a whole is better off if
1053 doujinshi are permitted rather than banned, but that doesn't explain
1054 why individual copyright owners don't sue nonetheless. If the law has
1055 no general exception for doujinshi, and indeed in some cases
1056 individual manga artists have sued doujinshi artists, why is there not
1057 a more general pattern of blocking this <span class="quote">«<span class="quote">free taking</span>»</span> by the doujinshi
1058 culture?
1059 </p><a class="indexterm" name="idp7190448"></a><a class="indexterm" name="idp7191424"></a><p>
1060 I spent four wonderful months in Japan, and I asked this question
1061 as often as I could. Perhaps the best account in the end was offered by
1062 a friend from a major Japanese law firm. <span class="quote">«<span class="quote">We don't have enough
1063 lawyers,</span>»</span> he told me one afternoon. There <span class="quote">«<span class="quote">just aren't enough resources
1064 to prosecute cases like this.</span>»</span>
1065 </p><p>
1066 This is a theme to which we will return: that regulation by law is a
1067 function of both the words on the books and the costs of making those
1068 words have effect. For now, focus on the obvious question that is
1069 begged: Would Japan be better off with more lawyers? Would manga
1070
1071 be richer if doujinshi artists were regularly prosecuted? Would the
1072 Japanese gain something important if they could end this practice of
1073 uncompensated sharing? Does piracy here hurt the victims of the
1074 piracy, or does it help them? Would lawyers fighting this piracy help
1075 their clients or hurt them?
1076 </p><a class="indexterm" name="idp7195072"></a><p>
1077 <span class="strong"><strong>Let's pause</strong></span> for a moment.
1078 </p><p>
1079 If you're like I was a decade ago, or like most people are when they
1080 first start thinking about these issues, then just about now you should
1081 be puzzled about something you hadn't thought through before.
1082 </p><p>
1083 We live in a world that celebrates <span class="quote">«<span class="quote">property.</span>»</span> I am one of those
1084 celebrants.  I believe in the value of property in general, and I also
1085 believe in the value of that weird form of property that lawyers call
1086 <span class="quote">«<span class="quote">intellectual property.</span>»</span><a href="#ftn.idp7198736" class="footnote" name="idp7198736"><sup class="footnote">[25]</sup></a>
1087 A large, diverse society cannot survive without property; a large,
1088 diverse, and modern society cannot flourish without intellectual
1089 property.
1090 </p><a class="indexterm" name="idxdisneywalt3"></a><a class="indexterm" name="idxgrimmfairytales2"></a><a class="indexterm" name="idp7204848"></a><p>
1091 But it takes just a second's reflection to realize that there is
1092 plenty of value out there that <span class="quote">«<span class="quote">property</span>»</span> doesn't capture. I don't
1093 mean <span class="quote">«<span class="quote">money can't buy you love,</span>»</span> but rather, value that is plainly
1094 part of a process of production, including commercial as well as
1095 noncommercial production.  If Disney animators had stolen a set of
1096 pencils to draw Steamboat Willie, we'd have no hesitation in
1097 condemning that taking as wrong&#8212; even though trivial, even if
1098 unnoticed. Yet there was nothing wrong, at least under the law of the
1099 day, with Disney's taking from Buster Keaton or from the Brothers
1100 Grimm. There was nothing wrong with the taking from Keaton because
1101 Disney's use would have been considered <span class="quote">«<span class="quote">fair.</span>»</span> There was nothing
1102 wrong with the taking from the Grimms because the Grimms' work was in
1103 the public domain.
1104 </p><a class="indexterm" name="idxfreeculturederivativeworksbasedon"></a><p>
1105 Thus, even though the things that Disney took&#8212;or more generally,
1106 the things taken by anyone exercising Walt Disney creativity&#8212;are
1107 valuable, our tradition does not treat those takings as wrong. Some
1108
1109
1110 things remain free for the taking within a free culture, and that
1111 freedom is good.
1112 </p><a class="indexterm" name="idp7210384"></a><a class="indexterm" name="idxcopyrightlawjapanese3"></a><a class="indexterm" name="idp7212848"></a><a class="indexterm" name="idxdoujinshicomics2"></a><a class="indexterm" name="idxjapanesecomics2"></a><a class="indexterm" name="idxmanga2"></a><p>
1113 The same with the doujinshi culture. If a doujinshi artist broke into
1114 a publisher's office and ran off with a thousand copies of his latest
1115 work&#8212;or even one copy&#8212;without paying, we'd have no hesitation in
1116 saying the artist was wrong. In addition to having trespassed, he would
1117 have stolen something of value. The law bans that stealing in whatever
1118 form, whether large or small.
1119 </p><a class="indexterm" name="idp7217552"></a><p>
1120 Yet there is an obvious reluctance, even among Japanese lawyers, to
1121 say that the copycat comic artists are <span class="quote">«<span class="quote">stealing.</span>»</span> This form of Walt
1122 Disney creativity is seen as fair and right, even if lawyers in
1123 particular find it hard to say why.
1124 </p><a class="indexterm" name="idp7220112"></a><a class="indexterm" name="idp7221088"></a><a class="indexterm" name="idp7222064"></a><a class="indexterm" name="idp7223040"></a><a class="indexterm" name="idp7224016"></a><a class="indexterm" name="idp7224992"></a><a class="indexterm" name="idp7225968"></a><p>
1125 It's the same with a thousand examples that appear everywhere once you
1126 begin to look. Scientists build upon the work of other scientists
1127 without asking or paying for the privilege. (<span class="quote">«<span class="quote">Excuse me, Professor
1128 Einstein, but may I have permission to use your theory of relativity
1129 to show that you were wrong about quantum physics?</span>»</span>) Acting companies
1130 perform adaptations of the works of Shakespeare without securing
1131 permission from anyone. (Does <span class="emphasis"><em>anyone</em></span> believe
1132 Shakespeare would be better spread within our culture if there were a
1133 central Shakespeare rights clearinghouse that all productions of
1134 Shakespeare must appeal to first?) And Hollywood goes through cycles
1135 with a certain kind of movie: five asteroid films in the late 1990s;
1136 two volcano disaster films in 1997.
1137 </p><p>
1138 Creators here and everywhere are always and at all times building
1139 upon the creativity that went before and that surrounds them now.
1140 That building is always and everywhere at least partially done without
1141 permission and without compensating the original creator. No society,
1142 free or controlled, has ever demanded that every use be paid for or that
1143 permission for Walt Disney creativity must always be sought. Instead,
1144 every society has left a certain bit of its culture free for the taking&#8212;free
1145 societies more fully than unfree, perhaps, but all societies to some degree.
1146
1147 </p><a class="indexterm" name="idp7229200"></a><p>
1148 The hard question is therefore not <span class="emphasis"><em>whether</em></span> a
1149 culture is free. All cultures are free to some degree. The hard
1150 question instead is <span class="quote">«<span class="quote"><span class="emphasis"><em>How</em></span> free is this culture?</span>»</span>
1151 How much, and how broadly, is the culture free for others to take and
1152 build upon? Is that freedom limited to party members?  To members of
1153 the royal family? To the top ten corporations on the New York Stock
1154 Exchange? Or is that freedom spread broadly? To artists generally,
1155 whether affiliated with the Met or not? To musicians generally,
1156 whether white or not? To filmmakers generally, whether affiliated with
1157 a studio or not?
1158 </p><p>
1159 Free cultures are cultures that leave a great deal open for others to
1160 build upon; unfree, or permission, cultures leave much less. Ours was a
1161 free culture. It is becoming much less so.
1162 </p><a class="indexterm" name="idp7233456"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7082272" class="footnote"><p><a href="#idp7082272" class="para"><sup class="para">[19] </sup></a>
1163
1164 Leonard Maltin, <em class="citetitle">Of Mice and Magic: A History of American Animated
1165 Cartoons</em> (New York: Penguin Books, 1987), 34&#8211;35.
1166 </p></div><div id="ftn.idp7095920" class="footnote"><p><a href="#idp7095920" class="para"><sup class="para">[20] </sup></a>
1167
1168 I am grateful to David Gerstein and his careful history, described at
1169 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #4</a>.
1170 According to Dave Smith of the Disney Archives, Disney paid royalties to
1171 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
1172 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>
1173 (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
1174 Straw,</span>»</span> was already in the public domain. Letter from David Smith to
1175 Harry Surden, 10 July 2003, on file with author.
1176 </p></div><div id="ftn.idp7109376" class="footnote"><p><a href="#idp7109376" class="para"><sup class="para">[21] </sup></a>
1177
1178 He was also a fan of the public domain. See Chris Sprigman, <span class="quote">«<span class="quote">The Mouse
1179 that Ate the Public Domain,</span>»</span> Findlaw, 5 March 2002, at
1180 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #5</a>.
1181 </p></div><div id="ftn.idp7124208" class="footnote"><p><a href="#idp7124208" class="para"><sup class="para">[22] </sup></a>
1182
1183 Until 1976, copyright law granted an author the possibility of two terms: an
1184 initial term and a renewal term. I have calculated the <span class="quote">«<span class="quote">average</span>»</span> term by
1185 determining
1186 the weighted average of total registrations for any particular year,
1187 and the proportion renewing. Thus, if 100 copyrights are registered in year
1188 1, and only 15 are renewed, and the renewal term is 28 years, then the
1189 average
1190 term is 32.2 years. For the renewal data and other relevant data, see the
1191 Web site associated with this book, available at
1192 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #6</a>.
1193 </p></div><div id="ftn.idp7173664" class="footnote"><p><a href="#idp7173664" class="para"><sup class="para">[23] </sup></a>
1194
1195 For an excellent history, see Scott McCloud, <em class="citetitle">Reinventing Comics</em> (New
1196 York: Perennial, 2000).
1197 </p></div><div id="ftn.idp7183696" class="footnote"><p><a href="#idp7183696" class="para"><sup class="para">[24] </sup></a>
1198
1199 See Salil K. Mehra, <span class="quote">«<span class="quote">Copyright and Comics in Japan: Does Law Explain
1200 Why All the Comics My Kid Watches Are Japanese Imports?</span>»</span> <em class="citetitle">Rutgers Law
1201 Review</em> 55 (2002): 155, 182. <span class="quote">«<span class="quote">[T]here might be a collective economic
1202 rationality that would lead manga and anime artists to forgo bringing
1203 legal actions for infringement. One hypothesis is that all manga
1204 artists may be better off collectively if they set aside their
1205 individual self-interest and decide not to press their legal
1206 rights. This is essentially a prisoner's dilemma solved.</span>»</span>
1207 </p></div><div id="ftn.idp7198736" class="footnote"><p><a href="#idp7198736" class="para"><sup class="para">[25] </sup></a>
1208
1209 <a class="indexterm" name="idp7199376"></a>
1210 The term <em class="citetitle">intellectual property</em> is of relatively recent origin. See
1211 Siva Vaidhyanathan, <em class="citetitle">Copyrights and Copywrongs</em>, 11 (New York: New York
1212 University Press, 2001). See also Lawrence Lessig, <em class="citetitle">The Future of Ideas</em>
1213 (New York: Random House, 2001), 293 n. 26. The term accurately
1214 describes a set of <span class="quote">«<span class="quote">property</span>»</span> rights &#8212; copyright, patents,
1215 trademark, and trade-secret &#8212; but the nature of those rights is
1216 very different.
1217 </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="idp7236192"></a><a class="indexterm" name="idxcameratechnology"></a><a class="indexterm" name="idxphotography"></a><p>
1218 <span class="strong"><strong>In 1839</strong></span>, Louis Daguerre invented
1219 the first practical technology for producing what we would call
1220 <span class="quote">«<span class="quote">photographs.</span>»</span> Appropriately enough, they were called
1221 <span class="quote">«<span class="quote">daguerreotypes.</span>»</span> The process was complicated and
1222 expensive, and the field was thus limited to professionals and a few
1223 zealous and wealthy amateurs. (There was even an American Daguerre
1224 Association that helped regulate the industry, as do all such
1225 associations, by keeping competition down so as to keep prices up.)
1226 </p><a class="indexterm" name="idp7241616"></a><p>
1227 Yet despite high prices, the demand for daguerreotypes was strong.
1228 This pushed inventors to find simpler and cheaper ways to make
1229 <span class="quote">«<span class="quote">automatic pictures.</span>»</span> William Talbot soon discovered a process for
1230 making <span class="quote">«<span class="quote">negatives.</span>»</span> But because the negatives were glass, and had to
1231 be kept wet, the process still remained expensive and cumbersome. In
1232 the 1870s, dry plates were developed, making it easier to separate the
1233 taking of a picture from its developing. These were still plates of
1234 glass, and thus it was still not a process within reach of most
1235 amateurs.
1236 </p><a class="indexterm" name="idxeastmangeorge"></a><p>
1237 The technological change that made mass photography possible
1238 didn't happen until 1888, and was the creation of a single man. George
1239
1240 Eastman, himself an amateur photographer, was frustrated by the
1241 technology of photographs made with plates. In a flash of insight (so
1242 to speak), Eastman saw that if the film could be made to be flexible,
1243 it could be held on a single spindle. That roll could then be sent to
1244 a developer, driving the costs of photography down substantially. By
1245 lowering the costs, Eastman expected he could dramatically broaden the
1246 population of photographers.
1247 </p><a class="indexterm" name="idxkodakcameras"></a><a class="indexterm" name="idxkodakprimertheeastman"></a><p>
1248 Eastman developed flexible, emulsion-coated paper film and placed
1249 rolls of it in small, simple cameras: the Kodak. The device was
1250 marketed on the basis of its simplicity. <span class="quote">«<span class="quote">You press the button and we
1251 do the rest.</span>»</span><a href="#ftn.idp7249664" class="footnote" name="idp7249664"><sup class="footnote">[26]</sup></a> As he described in <em class="citetitle">The Kodak Primer</em>:
1252 </p><div class="blockquote"><blockquote class="blockquote"><p>
1253 The principle of the Kodak system is the separation of the work that
1254 any person whomsoever can do in making a photograph, from the work
1255 that only an expert can do. &#8230; We furnish anybody, man, woman or
1256 child, who has sufficient intelligence to point a box straight and
1257 press a button, with an instrument which altogether removes from the
1258 practice of photography the necessity for exceptional facilities or,
1259 in fact, any special knowledge of the art. It can be employed without
1260 preliminary study, without a darkroom and without
1261 chemicals.<a href="#ftn.idp7173376" class="footnote" name="idp7173376"><sup class="footnote">[27]</sup></a>
1262 </p></blockquote></div><a class="indexterm" name="idp7254816"></a><p>
1263 For $25, anyone could make pictures. The camera came preloaded
1264 with film, and when it had been used, the camera was returned to an
1265 Eastman factory, where the film was developed. Over time, of course,
1266 the cost of the camera and the ease with which it could be used both
1267 improved. Roll film thus became the basis for the explosive growth of
1268 popular photography. Eastman's camera first went on sale in 1888; one
1269 year later, Kodak was printing more than six thousand negatives a day.
1270 From 1888 through 1909, while industrial production was rising by 4.7
1271 percent, photographic equipment and material sales increased by 11
1272 percent.<a href="#ftn.idp7257312" class="footnote" name="idp7257312"><sup class="footnote">[28]</sup></a> Eastman Kodak's sales during the same period experienced
1273 an average annual increase of over 17 percent.<a href="#ftn.idp7258208" class="footnote" name="idp7258208"><sup class="footnote">[29]</sup></a>
1274 </p><a class="indexterm" name="idp7259104"></a><p>
1275
1276
1277 The real significance of Eastman's invention, however, was not
1278 economic. It was social. Professional photography gave individuals a
1279 glimpse of places they would never otherwise see. Amateur photography
1280 gave them the ability to record their own lives in a way they had
1281 never been able to do before. As author Brian Coe notes, <span class="quote">«<span class="quote">For the
1282 first time the snapshot album provided the man on the street with a
1283 permanent record of his family and its activities. &#8230; For the first
1284 time in history there exists an authentic visual record of the
1285 appearance and activities of the common man made without [literary]
1286 interpretation or bias.</span>»</span><a href="#ftn.idp7252096" class="footnote" name="idp7252096"><sup class="footnote">[30]</sup></a>
1287 </p><a class="indexterm" name="idp7262192"></a><a class="indexterm" name="idp7263200"></a><p>
1288 In this way, the Kodak camera and film were technologies of
1289 expression.  The pencil or paintbrush was also a technology of
1290 expression, of course. But it took years of training before they could
1291 be deployed by amateurs in any useful or effective way. With the
1292 Kodak, expression was possible much sooner and more simply. The
1293 barrier to expression was lowered. Snobs would sneer at its <span class="quote">«<span class="quote">quality</span>»</span>;
1294 professionals would discount it as irrelevant. But watch a child study
1295 how best to frame a picture and you get a sense of the experience of
1296 creativity that the Kodak enabled. Democratic tools gave ordinary
1297 people a way to express themselves more easily than any tools could
1298 have before.
1299 </p><a class="indexterm" name="idp7265680"></a><a class="indexterm" name="idxpermissionsphotographyexemptedfrom"></a><p>
1300 What was required for this technology to flourish? Obviously,
1301 Eastman's genius was an important part. But also important was the
1302 legal environment within which Eastman's invention grew. For early in
1303 the history of photography, there was a series of judicial decisions
1304 that could well have changed the course of photography substantially.
1305 Courts were asked whether the photographer, amateur or professional,
1306 required permission before he could capture and print whatever image
1307 he wanted. Their answer was no.<a href="#ftn.idp7268928" class="footnote" name="idp7268928"><sup class="footnote">[31]</sup></a>
1308 </p><a class="indexterm" name="idp7272128"></a><a class="indexterm" name="idxdisneywalt4"></a><a class="indexterm" name="idximagesownershipof"></a><p>
1309 The arguments in favor of requiring permission will sound surprisingly
1310 familiar. The photographer was <span class="quote">«<span class="quote">taking</span>»</span> something from the person or
1311 building whose photograph he shot&#8212;pirating something of
1312 value. Some even thought he was taking the target's soul. Just as
1313 Disney was not free to take the pencils that his animators used to
1314 draw
1315
1316 Mickey, so, too, should these photographers not be free to take images
1317 that they thought valuable.
1318 </p><a class="indexterm" name="idp7277136"></a><a class="indexterm" name="idp7277888"></a><a class="indexterm" name="idxcameratechnology2"></a><p>
1319 On the other side was an argument that should be familiar, as well.
1320 Sure, there may be something of value being used. But citizens should
1321 have the right to capture at least those images that stand in public view.
1322 (Louis Brandeis, who would become a Supreme Court Justice, thought
1323 the rule should be different for images from private spaces.<a href="#ftn.idp7280480" class="footnote" name="idp7280480"><sup class="footnote">[32]</sup></a>) It may be that this means that the photographer
1324 gets something for nothing. Just as Disney could take inspiration from
1325 <em class="citetitle">Steamboat Bill, Jr</em>. or the Brothers Grimm, the photographer should be
1326 free to capture an image without compensating the source.
1327 </p><a class="indexterm" name="idp7284432"></a><p>
1328 Fortunately for Mr. Eastman, and for photography in general, these
1329 early decisions went in favor of the pirates. In general, no
1330 permission would be required before an image could be captured and
1331 shared with others. Instead, permission was presumed. Freedom was the
1332 default.  (The law would eventually craft an exception for famous
1333 people: commercial photographers who snap pictures of famous people
1334 for commercial purposes have more restrictions than the rest of
1335 us. But in the ordinary case, the image can be captured without
1336 clearing the rights to do the capturing.<a href="#ftn.idp7286256" class="footnote" name="idp7286256"><sup class="footnote">[33]</sup></a>)
1337 </p><a class="indexterm" name="idp7289456"></a><a class="indexterm" name="idp7290208"></a><p>
1338 We can only speculate about how photography would have developed had
1339 the law gone the other way. If the presumption had been against the
1340 photographer, then the photographer would have had to demonstrate
1341 permission. Perhaps Eastman Kodak would have had to demonstrate
1342 permission, too, before it developed the film upon which images were
1343 captured. After all, if permission were not granted, then Eastman
1344 Kodak would be benefiting from the <span class="quote">«<span class="quote">theft</span>»</span> committed by the
1345 photographer. Just as Napster benefited from the copyright
1346 infringements committed by Napster users, Kodak would be benefiting
1347 from the <span class="quote">«<span class="quote">image-right</span>»</span> infringement of its photographers. We could
1348 imagine the law then requiring that some form of permission be
1349 demonstrated before a company developed pictures. We could imagine a
1350 system developing to demonstrate that permission.
1351 </p><a class="indexterm" name="idp7292976"></a><a class="indexterm" name="idxcameratechnology3"></a><a class="indexterm" name="idp7295184"></a><a class="indexterm" name="idp7296192"></a><p>
1352
1353
1354 But though we could imagine this system of permission, it would be
1355 very hard to see how photography could have flourished as it did if
1356 the requirement for permission had been built into the rules that
1357 govern it. Photography would have existed. It would have grown in
1358 importance over time. Professionals would have continued to use the
1359 technology as they did&#8212;since professionals could have more
1360 easily borne the burdens of the permission system. But the spread of
1361 photography to ordinary people would not have occurred. Nothing like
1362 that growth would have been realized. And certainly, nothing like that
1363 growth in a democratic technology of expression would have been
1364 realized.
1365 </p><a class="indexterm" name="idp7297712"></a><a class="indexterm" name="idp7299520"></a><a class="indexterm" name="idp7300496"></a><a class="indexterm" name="idp7301472"></a><a class="indexterm" name="idp7302448"></a><a class="indexterm" name="idxjustthink"></a><p>
1366 <span class="strong"><strong>If you drive</strong></span> through San
1367 Francisco's Presidio, you might see two gaudy yellow school buses
1368 painted over with colorful and striking images, and the logo
1369 <span class="quote">«<span class="quote">Just Think!</span>»</span> in place of the name of a school. But
1370 there's little that's <span class="quote">«<span class="quote">just</span>»</span> cerebral in the projects
1371 that these busses enable.  These buses are filled with technologies
1372 that teach kids to tinker with film. Not the film of Eastman. Not even
1373 the film of your VCR.  Rather the <span class="quote">«<span class="quote">film</span>»</span> of digital
1374 cameras. Just Think!  is a project that enables kids to make films, as
1375 a way to understand and critique the filmed culture that they find all
1376 around them. Each year, these busses travel to more than thirty
1377 schools and enable three hundred to five hundred children to learn
1378 something about media by doing something with media.  By doing, they
1379 think. By tinkering, they learn.
1380 </p><a class="indexterm" name="idxeducationinmedialiteracy"></a><a class="indexterm" name="idxmedialiteracy"></a><a class="indexterm" name="idxexpressiontechnologiesofmedialiteracyand"></a><p>
1381 These buses are not cheap, but the technology they carry is
1382 increasingly so. The cost of a high-quality digital video system has
1383 fallen dramatically.  As one analyst puts it, <span class="quote">«<span class="quote">Five years ago, a good
1384 real-time digital video editing system cost $25,000. Today you can get
1385 professional quality for $595.</span>»</span><a href="#ftn.idp7312496" class="footnote" name="idp7312496"><sup class="footnote">[34]</sup></a>
1386 These buses are filled with technology that would have cost hundreds
1387 of thousands just ten years ago. And it is now feasible to imagine not
1388 just buses like this, but classrooms across the country where kids are
1389 learning more and more of something teachers call <span class="quote">«<span class="quote">media literacy.</span>»</span>
1390 </p><a class="indexterm" name="idp7315184"></a><p>
1391
1392 <span class="quote">«<span class="quote">Media literacy,</span>»</span> as Dave Yanofsky, the executive director of Just
1393 Think!, puts it, <span class="quote">«<span class="quote">is the ability &#8230; to understand, analyze, and
1394 deconstruct media images. Its aim is to make [kids] literate about the
1395 way media works, the way it's constructed, the way it's delivered, and
1396 the way people access it.</span>»</span>
1397 </p><a class="indexterm" name="idp7317648"></a><p>
1398 This may seem like an odd way to think about <span class="quote">«<span class="quote">literacy.</span>»</span> For most
1399 people, literacy is about reading and writing. Faulkner and Hemingway
1400 and noticing split infinitives are the things that <span class="quote">«<span class="quote">literate</span>»</span> people know
1401 about.
1402 </p><a class="indexterm" name="idp7319920"></a><a class="indexterm" name="idp7320672"></a><a class="indexterm" name="idp7321424"></a><p>
1403 Maybe. But in a world where children see on average 390 hours of
1404 television commercials per year, or between 20,000 and 45,000
1405 commercials generally,<a href="#ftn.idp7322848" class="footnote" name="idp7322848"><sup class="footnote">[35]</sup></a>
1406 it is increasingly important to understand the <span class="quote">«<span class="quote">grammar</span>»</span> of media. For
1407 just as there is a grammar for the written word, so, too, is there one
1408 for media. And just as kids learn how to write by writing lots of
1409 terrible prose, kids learn how to write media by constructing lots of
1410 (at least at first) terrible media.
1411 </p><p>
1412 A growing field of academics and activists sees this form of literacy
1413 as crucial to the next generation of culture. For though anyone who
1414 has written understands how difficult writing is&#8212;how difficult
1415 it is to sequence the story, to keep a reader's attention, to craft
1416 language to be understandable&#8212;few of us have any real sense of
1417 how difficult media is. Or more fundamentally, few of us have a sense
1418 of how media works, how it holds an audience or leads it through a
1419 story, how it triggers emotion or builds suspense.
1420 </p><a class="indexterm" name="idp7325808"></a><p>
1421 It took filmmaking a generation before it could do these things well.
1422 But even then, the knowledge was in the filming, not in writing about
1423 the film. The skill came from experiencing the making of a film, not
1424 from reading a book about it. One learns to write by writing and then
1425 reflecting upon what one has written. One learns to write with images
1426 by making them and then reflecting upon what one has created.
1427 </p><a class="indexterm" name="idxdaleyelizabeth"></a><a class="indexterm" name="idp7329584"></a><p>
1428 This grammar has changed as media has changed. When it was just film,
1429 as Elizabeth Daley, executive director of the University of Southern
1430 California's Annenberg Center for Communication and dean of the
1431
1432
1433 USC School of Cinema-Television, explained to me, the grammar was
1434 about <span class="quote">«<span class="quote">the placement of objects, color, &#8230; rhythm, pacing, and
1435 texture.</span>»</span><a href="#ftn.idp7317168" class="footnote" name="idp7317168"><sup class="footnote">[36]</sup></a>
1436 But as computers open up an interactive space where a story is
1437 <span class="quote">«<span class="quote">played</span>»</span> as well as experienced, that grammar changes. The simple
1438 control of narrative is lost, and so other techniques are necessary. Author
1439 Michael Crichton had mastered the narrative of science fiction.
1440 But when he tried to design a computer game based on one of his
1441 works, it was a new craft he had to learn. How to lead people through
1442 a game without their feeling they have been led was not obvious, even
1443 to a wildly successful author.<a href="#ftn.idp7334832" class="footnote" name="idp7334832"><sup class="footnote">[37]</sup></a>
1444 </p><a class="indexterm" name="idp7337744"></a><p>
1445 This skill is precisely the craft a filmmaker learns. As Daley
1446 describes, <span class="quote">«<span class="quote">people are very surprised about how they are led through a
1447 film. [I]t is perfectly constructed to keep you from seeing it, so you
1448 have no idea. If a filmmaker succeeds you do not know how you were
1449 led.</span>»</span> If you know you were led through a film, the film has failed.
1450 </p><p>
1451 Yet the push for an expanded literacy&#8212;one that goes beyond text
1452 to include audio and visual elements&#8212;is not about making better
1453 film directors.  The aim is not to improve the profession of
1454 filmmaking at all.  Instead, as Daley explained,
1455 </p><div class="blockquote"><blockquote class="blockquote"><p>
1456 From my perspective, probably the most important digital divide
1457 is not access to a box. It's the ability to be empowered with the
1458 language that that box works in. Otherwise only a very few people
1459 can write with this language, and all the rest of us are reduced to
1460 being read-only.
1461 </p></blockquote></div><p>
1462 <span class="quote">«<span class="quote">Read-only.</span>»</span> Passive recipients of culture produced elsewhere.
1463 Couch potatoes. Consumers. This is the world of media from the
1464 twentieth century.
1465 </p><p>
1466 The twenty-first century could be different. This is the crucial
1467 point: It could be both read and write. Or at least reading and better
1468 understanding the craft of writing. Or best, reading and understanding
1469 the tools that enable the writing to lead or mislead. The aim of any
1470 literacy,
1471
1472 and this literacy in particular, is to <span class="quote">«<span class="quote">empower people to choose the
1473 appropriate language for what they need to create or
1474 express.</span>»</span><a href="#ftn.idp7343472" class="footnote" name="idp7343472"><sup class="footnote">[38]</sup></a> It is to enable students <span class="quote">«<span class="quote">to communicate in the
1475 language of the twenty-first century.</span>»</span><a href="#ftn.idp7345456" class="footnote" name="idp7345456"><sup class="footnote">[39]</sup></a>
1476 </p><a class="indexterm" name="idxbarishstephanie"></a><p>
1477 As with any language, this language comes more easily to some than to
1478 others. It doesn't necessarily come more easily to those who excel in
1479 written language. Daley and Stephanie Barish, director of the
1480 Institute for Multimedia Literacy at the Annenberg Center, describe
1481 one particularly poignant example of a project they ran in a high
1482 school.  The high school was a very poor inner-city Los Angeles
1483 school. In all the traditional measures of success, this school was a
1484 failure. But Daley and Barish ran a program that gave kids an
1485 opportunity to use film to express meaning about something the
1486 students know something about&#8212;gun violence.
1487 </p><a class="indexterm" name="idp7347840"></a><p>
1488 The class was held on Friday afternoons, and it created a relatively
1489 new problem for the school. While the challenge in most classes was
1490 getting the kids to come, the challenge in this class was keeping them
1491 away. The <span class="quote">«<span class="quote">kids were showing up at 6 A.M. and leaving at 5 at night,</span>»</span>
1492 said Barish. They were working harder than in any other class to do
1493 what education should be about&#8212;learning how to express themselves.
1494 </p><p>
1495 Using whatever <span class="quote">«<span class="quote">free web stuff they could find,</span>»</span> and relatively simple
1496 tools to enable the kids to mix <span class="quote">«<span class="quote">image, sound, and text,</span>»</span> Barish said
1497 this class produced a series of projects that showed something about
1498 gun violence that few would otherwise understand. This was an issue
1499 close to the lives of these students. The project <span class="quote">«<span class="quote">gave them a tool
1500 and empowered them to be able to both understand it and talk about
1501 it,</span>»</span> Barish explained. That tool succeeded in creating
1502 expression&#8212;far more successfully and powerfully than could have
1503 been created using only text. <span class="quote">«<span class="quote">If you had said to these students, `you
1504 have to do it in text,' they would've just thrown their hands up and
1505 gone and done something else,</span>»</span> Barish described, in part, no doubt,
1506 because expressing themselves in text is not something these students
1507 can do well. Yet neither is text a form in which
1508 <span class="emphasis"><em>these</em></span> ideas can be expressed well. The power of
1509 this message depended upon its connection to this form of expression.
1510 </p><a class="indexterm" name="idp7354560"></a><a class="indexterm" name="idxdaleyelizabeth2"></a><p>
1511
1512
1513 <span class="quote">«<span class="quote">But isn't education about teaching kids to write?</span>»</span> I asked. In part,
1514 of course, it is. But why are we teaching kids to write? Education,
1515 Daley explained, is about giving students a way of <span class="quote">«<span class="quote">constructing
1516 meaning.</span>»</span>  To say that that means just writing is like saying teaching
1517 writing is only about teaching kids how to spell. Text is one
1518 part&#8212;and increasingly, not the most powerful part&#8212;of
1519 constructing meaning. As Daley explained in the most moving part of
1520 our interview,
1521 </p><div class="blockquote"><blockquote class="blockquote"><p>
1522 What you want is to give these students ways of constructing
1523 meaning. If all you give them is text, they're not going to do it.
1524 Because they can't. You know, you've got Johnny who can look at a
1525 video, he can play a video game, he can do graffiti all over your
1526 walls, he can take your car apart, and he can do all sorts of other
1527 things. He just can't read your text. So Johnny comes to school and
1528 you say, <span class="quote">«<span class="quote">Johnny, you're illiterate. Nothing you can do matters.</span>»</span>
1529 Well, Johnny then has two choices: He can dismiss you or he [can]
1530 dismiss himself. If his ego is healthy at all, he's going to dismiss
1531 you. [But i]nstead, if you say, <span class="quote">«<span class="quote">Well, with all these things that you
1532 can do, let's talk about this issue. Play for me music that you think
1533 reflects that, or show me images that you think reflect that, or draw
1534 for me something that reflects that.</span>»</span> Not by giving a kid a video
1535 camera and &#8230; saying, <span class="quote">«<span class="quote">Let's go have fun with the video camera and
1536 make a little movie.</span>»</span> But instead, really help you take these elements
1537 that you understand, that are your language, and construct meaning
1538 about the topic.&#8230;
1539 </p><a class="indexterm" name="idp7361024"></a><p>
1540 That empowers enormously. And then what happens, of
1541 course, is eventually, as it has happened in all these classes, they
1542 bump up against the fact, <span class="quote">«<span class="quote">I need to explain this and I really need
1543 to write something.</span>»</span> And as one of the teachers told Stephanie,
1544 they would rewrite a paragraph 5, 6, 7, 8 times, till they got it right.
1545 </p><p>
1546 Because they needed to. There was a reason for doing it. They
1547 needed to say something, as opposed to just jumping through
1548 your hoops. They actually needed to use a language that they
1549
1550 didn't speak very well. But they had come to understand that they
1551 had a lot of power with this language.
1552 </p></blockquote></div><a class="indexterm" name="idp7364320"></a><a class="indexterm" name="idp7365296"></a><a class="indexterm" name="idp7366272"></a><a class="indexterm" name="idp7367248"></a><a class="indexterm" name="idxseptemberterroristattacksof"></a><a class="indexterm" name="idp7369456"></a><a class="indexterm" name="idxnewscoverage"></a><p>
1553 <span class="strong"><strong>When two planes</strong></span> crashed into the
1554 World Trade Center, another into the Pentagon, and a fourth into a
1555 Pennsylvania field, all media around the world shifted to this
1556 news. Every moment of just about every day for that week, and for
1557 weeks after, television in particular, and media generally, retold the
1558 story of the events we had just witnessed. The telling was a
1559 retelling, because we had seen the events that were described. The
1560 genius of this awful act of terrorism was that the delayed second
1561 attack was perfectly timed to assure that the whole world would be
1562 watching.
1563 </p><p>
1564 These retellings had an increasingly familiar feel. There was music
1565 scored for the intermissions, and fancy graphics that flashed across
1566 the screen. There was a formula to interviews. There was <span class="quote">«<span class="quote">balance,</span>»</span>
1567 and seriousness. This was news choreographed in the way we have
1568 increasingly come to expect it, <span class="quote">«<span class="quote">news as entertainment,</span>»</span> even if the
1569 entertainment is tragedy.
1570 </p><a class="indexterm" name="idp7374496"></a><a class="indexterm" name="idp7375248"></a><p>
1571 But in addition to this produced news about the <span class="quote">«<span class="quote">tragedy of September
1572 11,</span>»</span> those of us tied to the Internet came to see a very different
1573 production as well. The Internet was filled with accounts of the same
1574 events. Yet these Internet accounts had a very different flavor. Some
1575 people constructed photo pages that captured images from around the
1576 world and presented them as slide shows with text. Some offered open
1577 letters. There were sound recordings. There was anger and frustration.
1578 There were attempts to provide context. There was, in short, an
1579 extraordinary worldwide barn raising, in the sense Mike Godwin uses
1580 the term in his book <em class="citetitle">Cyber Rights</em>, around a news event that had
1581 captured the attention of the world. There was ABC and CBS, but there
1582 was also the Internet.
1583 </p><a class="indexterm" name="idp7377872"></a><p>
1584 I don't mean simply to praise the Internet&#8212;though I do think the
1585 people who supported this form of speech should be praised. I mean
1586 instead to point to a significance in this form of speech. For like a
1587 Kodak, the Internet enables people to capture images. And like in a
1588 movie
1589
1590 by a student on the <span class="quote">«<span class="quote">Just Think!</span>»</span> bus, the visual images could be mixed
1591 with sound or text.
1592 </p><p>
1593 But unlike any technology for simply capturing images, the Internet
1594 allows these creations to be shared with an extraordinary number of
1595 people, practically instantaneously. This is something new in our
1596 tradition&#8212;not just that culture can be captured mechanically,
1597 and obviously not just that events are commented upon critically, but
1598 that this mix of captured images, sound, and commentary can be widely
1599 spread practically instantaneously.
1600 </p><a class="indexterm" name="idp7380496"></a><a class="indexterm" name="idxblogsweblogs"></a><a class="indexterm" name="idxinternetblogson"></a><a class="indexterm" name="idxweblogsblogs"></a><p>
1601 September 11 was not an aberration. It was a beginning. Around the
1602 same time, a form of communication that has grown dramatically was
1603 just beginning to come into public consciousness: the Web-log, or
1604 blog. The blog is a kind of public diary, and within some cultures,
1605 such as in Japan, it functions very much like a diary. In those
1606 cultures, it records private facts in a public way&#8212;it's a kind
1607 of electronic <em class="citetitle">Jerry Springer</em>, available anywhere in the world.
1608 </p><a class="indexterm" name="idp7387232"></a><a class="indexterm" name="idxinternetpublicdiscourseconductedon"></a><p>
1609 But in the United States, blogs have taken on a very different
1610 character.  There are some who use the space simply to talk about
1611 their private life. But there are many who use the space to engage in
1612 public discourse. Discussing matters of public import, criticizing
1613 others who are mistaken in their views, criticizing politicians about
1614 the decisions they make, offering solutions to problems we all see:
1615 blogs create the sense of a virtual public meeting, but one in which
1616 we don't all hope to be there at the same time and in which
1617 conversations are not necessarily linked. The best of the blog entries
1618 are relatively short; they point directly to words used by others,
1619 criticizing with or adding to them.  They are arguably the most
1620 important form of unchoreographed public discourse that we have.
1621 </p><a class="indexterm" name="idxdemocracyintechnologiesofexpression"></a><a class="indexterm" name="idxelections"></a><a class="indexterm" name="idxexpressiontechnologiesofdemocratic"></a><p>
1622 That's a strong statement. Yet it says as much about our democracy as
1623 it does about blogs. This is the part of America that is most
1624 difficult for those of us who love America to accept: Our democracy
1625 has atrophied.  Of course we have elections, and most of the time the
1626 courts allow those elections to count. A relatively small number of
1627 people vote
1628
1629 in those elections. The cycle of these elections has become totally
1630 professionalized and routinized. Most of us think this is democracy.
1631 </p><a class="indexterm" name="idm16656"></a><a class="indexterm" name="idm15440"></a><a class="indexterm" name="idp7407552"></a><a class="indexterm" name="idp7408528"></a><a class="indexterm" name="idxdemocracypublicdiscoursein"></a><a class="indexterm" name="idp7410768"></a><p>
1632 But democracy has never just been about elections. Democracy
1633 means rule by the people, but rule means something more than mere
1634 elections. In our tradition, it also means control through reasoned
1635 discourse.  This was the idea that captured the imagination of Alexis
1636 de Tocqueville, the nineteenth-century French lawyer who wrote the
1637 most important account of early <span class="quote">«<span class="quote">Democracy in America.</span>»</span> It wasn't
1638 popular elections that fascinated him&#8212;it was the jury, an
1639 institution that gave ordinary people the right to choose life or
1640 death for other citizens.  And most fascinating for him was that the
1641 jury didn't just vote about the outcome they would impose. They
1642 deliberated. Members argued about the <span class="quote">«<span class="quote">right</span>»</span> result; they tried to
1643 persuade each other of the <span class="quote">«<span class="quote">right</span>»</span> result, and in criminal cases at
1644 least, they had to agree upon a unanimous result for the process to
1645 come to an end.<a href="#ftn.idp7413760" class="footnote" name="idp7413760"><sup class="footnote">[40]</sup></a>
1646 </p><a class="indexterm" name="idp7415040"></a><p>
1647 Yet even this institution flags in American life today. And in its
1648 place, there is no systematic effort to enable citizen deliberation. Some
1649 are pushing to create just such an institution.<a href="#ftn.idp7416480" class="footnote" name="idp7416480"><sup class="footnote">[41]</sup></a>
1650 And in some towns in New England, something close to deliberation
1651 remains. But for most of us for most of the time, there is no time or
1652 place for <span class="quote">«<span class="quote">democratic deliberation</span>»</span> to occur.
1653 </p><a class="indexterm" name="idxpoliticaldiscourse"></a><p>
1654 More bizarrely, there is generally not even permission for it to
1655 occur.  We, the most powerful democracy in the world, have developed a
1656 strong norm against talking about politics. It's fine to talk about
1657 politics with people you agree with. But it is rude to argue about
1658 politics with people you disagree with. Political discourse becomes
1659 isolated, and isolated discourse becomes more extreme.<a href="#ftn.idp7420592" class="footnote" name="idp7420592"><sup class="footnote">[42]</sup></a> We say what our friends want to hear, and hear very
1660 little beyond what our friends say.
1661 </p><a class="indexterm" name="idxblogsweblogs2"></a><a class="indexterm" name="idp7423216"></a><a class="indexterm" name="idxinternetblogson2"></a><a class="indexterm" name="idxweblogsblogs2"></a><a class="indexterm" name="idp7426688"></a><a class="indexterm" name="idp7427664"></a><a class="indexterm" name="idp7428640"></a><p>
1662 Enter the blog. The blog's very architecture solves one part of this
1663 problem. People post when they want to post, and people read when they
1664 want to read. The most difficult time is synchronous time.
1665 Technologies that enable asynchronous communication, such as e-mail,
1666 increase the opportunity for communication. Blogs allow for public
1667
1668
1669 discourse without the public ever needing to gather in a single public
1670 place.
1671 </p><p>
1672 But beyond architecture, blogs also have solved the problem of
1673 norms. There's no norm (yet) in blog space not to talk about politics.
1674 Indeed, the space is filled with political speech, on both the right and
1675 the left. Some of the most popular sites are conservative or libertarian,
1676 but there are many of all political stripes. And even blogs that are not
1677 political cover political issues when the occasion merits.
1678 </p><a class="indexterm" name="idp7431520"></a><p>
1679 The significance of these blogs is tiny now, though not so tiny. The
1680 name Howard Dean may well have faded from the 2004 presidential race
1681 but for blogs. Yet even if the number of readers is small, the reading
1682 is having an effect.
1683 </p><a class="indexterm" name="idp7432896"></a><a class="indexterm" name="idp7433648"></a><a class="indexterm" name="idxmediablogpressureon"></a><a class="indexterm" name="idxinternetnewseventson2"></a><p>
1684 One direct effect is on stories that had a different life cycle in the
1685 mainstream media. The Trent Lott affair is an example. When Lott
1686 <span class="quote">«<span class="quote">misspoke</span>»</span> at a party for Senator Strom Thurmond, essentially praising
1687 Thurmond's segregationist policies, he calculated correctly that this
1688 story would disappear from the mainstream press within forty-eight
1689 hours. It did. But he didn't calculate its life cycle in blog
1690 space. The bloggers kept researching the story. Over time, more and
1691 more instances of the same <span class="quote">«<span class="quote">misspeaking</span>»</span> emerged. Finally, the story
1692 broke back into the mainstream press. In the end, Lott was forced to
1693 resign as senate majority leader.<a href="#ftn.idp7439072" class="footnote" name="idp7439072"><sup class="footnote">[43]</sup></a>
1694 </p><a class="indexterm" name="idxmediacommercialimperativesof"></a><p>
1695 This different cycle is possible because the same commercial pressures
1696 don't exist with blogs as with other ventures. Television and
1697 newspapers are commercial entities. They must work to keep attention.
1698 If they lose readers, they lose revenue. Like sharks, they must move
1699 on.
1700 </p><a class="indexterm" name="idp7442512"></a><a class="indexterm" name="idp7443488"></a><p>
1701 But bloggers don't have a similar constraint. They can obsess, they
1702 can focus, they can get serious. If a particular blogger writes a
1703 particularly interesting story, more and more people link to that
1704 story. And as the number of links to a particular story increases, it
1705 rises in the ranks of stories. People read what is popular; what is
1706 popular has been selected by a very democratic process of
1707 peer-generated rankings.
1708 </p><a class="indexterm" name="idp7445744"></a><a class="indexterm" name="idxjournalism"></a><a class="indexterm" name="idxwinerdave"></a><p>
1709 There's a second way, as well, in which blogs have a different cycle
1710
1711 from the mainstream press. As Dave Winer, one of the fathers of this
1712 movement and a software author for many decades, told me, another
1713 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
1714 have to take the conflict of interest</span>»</span> out of journalism, Winer told me.
1715 <span class="quote">«<span class="quote">An amateur journalist simply doesn't have a conflict of interest, or the
1716 conflict of interest is so easily disclosed that you know you can sort of
1717 get it out of the way.</span>»</span>
1718 </p><a class="indexterm" name="idp7451440"></a><a class="indexterm" name="idp7452192"></a><a class="indexterm" name="idp7453200"></a><a class="indexterm" name="idp7453952"></a><p>
1719 These conflicts become more important as media becomes more
1720 concentrated (more on this below). A concentrated media can hide more
1721 from the public than an unconcentrated media can&#8212;as CNN admitted
1722 it did after the Iraq war because it was afraid of the consequences to
1723 its own employees.<a href="#ftn.idp7412544" class="footnote" name="idp7412544"><sup class="footnote">[44]</sup></a>
1724 It also needs to sustain a more coherent account. (In the middle of
1725 the Iraq war, I read a post on the Internet from someone who was at
1726 that time listening to a satellite uplink with a reporter in Iraq. The
1727 New York headquarters was telling the reporter over and over that her
1728 account of the war was too bleak: She needed to offer a more
1729 optimistic story. When she told New York that wasn't warranted, they
1730 told her that <span class="emphasis"><em>they</em></span> were writing <span class="quote">«<span class="quote">the story.</span>»</span>)
1731 </p><a class="indexterm" name="idp7457680"></a><p>
1732 Blog space gives amateurs a way to enter the
1733 debate&#8212;<span class="quote">«<span class="quote">amateur</span>»</span> not in the sense of inexperienced,
1734 but in the sense of an Olympic athlete, meaning not paid by anyone to
1735 give their reports. It allows for a much broader range of input into a
1736 story, as reporting on the Columbia disaster revealed, when hundreds
1737 from across the southwest United States turned to the Internet to
1738 retell what they had seen.<a href="#ftn.idp7459648" class="footnote" name="idp7459648"><sup class="footnote">[45]</sup></a>
1739 And it drives readers to read across the range of accounts and
1740 <span class="quote">«<span class="quote">triangulate,</span>»</span> as Winer puts it, the truth. Blogs, Winer says, are
1741 <span class="quote">«<span class="quote">communicating directly with our constituency, and the middle man is
1742 out of it</span>»</span>&#8212;with all the benefits, and costs, that might entail.
1743 </p><p>
1744 Winer is optimistic about the future of journalism infected
1745 with blogs. <span class="quote">«<span class="quote">It's going to become an essential skill,</span>»</span> Winer predicts,
1746 for public figures and increasingly for private figures as well. It's
1747 not clear that <span class="quote">«<span class="quote">journalism</span>»</span> is happy about this&#8212;some journalists
1748 have been told to curtail their blogging.<a href="#ftn.idp7463168" class="footnote" name="idp7463168"><sup class="footnote">[46]</sup></a>
1749 But it is clear that we are still in transition. <span class="quote">«<span class="quote">A
1750
1751
1752 lot of what we are doing now is warm-up exercises,</span>»</span> Winer told me.
1753 There is a lot that must mature before this space has its mature effect.
1754 And as the inclusion of content in this space is the least infringing use
1755 of the Internet (meaning infringing on copyright), Winer said, <span class="quote">«<span class="quote">we will
1756 be the last thing that gets shut down.</span>»</span>
1757 </p><a class="indexterm" name="idp7472096"></a><p>
1758 This speech affects democracy. Winer thinks that happens because <span class="quote">«<span class="quote">you
1759 don't have to work for somebody who controls, [for] a gatekeeper.</span>»</span>
1760 That is true. But it affects democracy in another way as well.  As
1761 more and more citizens express what they think, and defend it in
1762 writing, that will change the way people understand public issues. It
1763 is easy to be wrong and misguided in your head. It is harder when the
1764 product of your mind can be criticized by others. Of course, it is a
1765 rare human who admits that he has been persuaded that he is wrong. But
1766 it is even rarer for a human to ignore when he has been proven wrong.
1767 The writing of ideas, arguments, and criticism improves democracy.
1768 Today there are probably a couple of million blogs where such writing
1769 happens. When there are ten million, there will be something
1770 extraordinary to report.
1771 </p><a class="indexterm" name="idp7474720"></a><a class="indexterm" name="idp7475696"></a><a class="indexterm" name="idp7476672"></a><a class="indexterm" name="idp7477648"></a><a class="indexterm" name="idp7478624"></a><a class="indexterm" name="idp7479600"></a><a class="indexterm" name="idp7480576"></a><a class="indexterm" name="idxbrownjohnseely"></a><a class="indexterm" name="idxadvertising1"></a><p>
1772 <span class="strong"><strong>John Seely Brown</strong></span> is the chief
1773 scientist of the Xerox Corporation.  His work, as his Web site
1774 describes it, is <span class="quote">«<span class="quote">human learning and &#8230; the creation of
1775 knowledge ecologies for creating &#8230; innovation.</span>»</span>
1776 </p><p>
1777 Brown thus looks at these technologies of digital creativity a bit
1778 differently from the perspectives I've sketched so far. I'm sure he
1779 would be excited about any technology that might improve
1780 democracy. But his real excitement comes from how these technologies
1781 affect learning.
1782 </p><p>
1783 As Brown believes, we learn by tinkering. When <span class="quote">«<span class="quote">a lot of us grew up,</span>»</span>
1784 he explains, that tinkering was done <span class="quote">«<span class="quote">on motorcycle engines, lawnmower
1785 engines, automobiles, radios, and so on.</span>»</span> But digital technologies
1786 enable a different kind of tinkering&#8212;with abstract ideas though
1787 in concrete form. The kids at Just Think! not only think about how a
1788 commercial portrays a politician; using digital technology, they can
1789
1790 take the commercial apart and manipulate it, tinker with it to see how
1791 it does what it does. Digital technologies launch a kind of bricolage,
1792 or <span class="quote">«<span class="quote">free collage,</span>»</span> as Brown calls it. Many get to add to or transform
1793 the tinkering of many others.
1794 </p><p>
1795 The best large-scale example of this kind of tinkering so far is free
1796 software or open-source software (FS/OSS). FS/OSS is software whose
1797 source code is shared. Anyone can download the technology that makes a
1798 FS/OSS program run. And anyone eager to learn how a particular bit of
1799 FS/OSS technology works can tinker with the code.
1800 </p><p>
1801 This opportunity creates a <span class="quote">«<span class="quote">completely new kind of learning platform,</span>»</span>
1802 as Brown describes. <span class="quote">«<span class="quote">As soon as you start doing that, you &#8230;
1803 unleash a free collage on the community, so that other people can
1804 start looking at your code, tinkering with it, trying it out, seeing
1805 if they can improve it.</span>»</span> Each effort is a kind of
1806 apprenticeship. <span class="quote">«<span class="quote">Open source becomes a major apprenticeship platform.</span>»</span>
1807 </p><p>
1808 In this process, <span class="quote">«<span class="quote">the concrete things you tinker with are abstract.
1809 They are code.</span>»</span> Kids are <span class="quote">«<span class="quote">shifting to the ability to tinker in the
1810 abstract, and this tinkering is no longer an isolated activity that
1811 you're doing in your garage. You are tinkering with a community
1812 platform. &#8230;  You are tinkering with other people's stuff. The more
1813 you tinker the more you improve.</span>»</span> The more you improve, the more you
1814 learn.
1815 </p><p>
1816 This same thing happens with content, too. And it happens in the same
1817 collaborative way when that content is part of the Web. As Brown puts
1818 it, <span class="quote">«<span class="quote">the Web [is] the first medium that truly honors multiple forms of
1819 intelligence.</span>»</span> Earlier technologies, such as the typewriter or word
1820 processors, helped amplify text. But the Web amplifies much more than
1821 text. <span class="quote">«<span class="quote">The Web &#8230; says if you are musical, if you are artistic, if
1822 you are visual, if you are interested in film &#8230; [then] there is a
1823 lot you can start to do on this medium. [It] can now amplify and honor
1824 these multiple forms of intelligence.</span>»</span>
1825 </p><a class="indexterm" name="idp7494544"></a><a class="indexterm" name="idp7495520"></a><p>
1826 Brown is talking about what Elizabeth Daley, Stephanie Barish, and
1827 Just Think! teach: that this tinkering with culture teaches as well
1828
1829
1830 as creates. It develops talents differently, and it builds a different
1831 kind of recognition.
1832 </p><p>
1833 Yet the freedom to tinker with these objects is not guaranteed.
1834 Indeed, as we'll see through the course of this book, that freedom is
1835 increasingly highly contested. While there's no doubt that your father
1836 had the right to tinker with the car engine, there's great doubt that
1837 your child will have the right to tinker with the images she finds all
1838 around.  The law and, increasingly, technology interfere with a
1839 freedom that technology, and curiosity, would otherwise ensure.
1840 </p><p>
1841 These restrictions have become the focus of researchers and scholars.
1842 Professor Ed Felten of Princeton (whom we'll see more of in chapter
1843 <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>)
1844 has developed a powerful argument in favor of the <span class="quote">«<span class="quote">right to
1845 tinker</span>»</span> as it applies to computer science and to knowledge in
1846 general.<a href="#ftn.idp7499680" class="footnote" name="idp7499680"><sup class="footnote">[47]</sup></a>
1847 But Brown's concern is earlier, or younger, or more fundamental. It is
1848 about the learning that kids can do, or can't do, because of the law.
1849 </p><p>
1850 <span class="quote">«<span class="quote">This is where education in the twenty-first century is going,</span>»</span> Brown
1851 explains. We need to <span class="quote">«<span class="quote">understand how kids who grow up digital think
1852 and want to learn.</span>»</span>
1853 </p><p>
1854 <span class="quote">«<span class="quote">Yet,</span>»</span> as Brown continued, and as the balance of this book will
1855 evince, <span class="quote">«<span class="quote">we are building a legal system that completely suppresses the
1856 natural tendencies of today's digital kids. &#8230; We're building an
1857 architecture that unleashes 60 percent of the brain [and] a legal
1858 system that closes down that part of the brain.</span>»</span>
1859 </p><a class="indexterm" name="idp7504464"></a><p>
1860 We're building a technology that takes the magic of Kodak, mixes
1861 moving images and sound, and adds a space for commentary and an
1862 opportunity to spread that creativity everywhere. But we're building
1863 the law to close down that technology.
1864 </p><p>
1865 <span class="quote">«<span class="quote">No way to run a culture,</span>»</span> as Brewster Kahle, whom we'll meet in
1866 chapter <a class="xref" href="#collectors" title="Chapter 9. Chapter Nine: Collectors">9</a>,
1867 quipped to me in a rare moment of despondence.
1868 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7249664" class="footnote"><p><a href="#idp7249664" class="para"><sup class="para">[26] </sup></a>
1869
1870 Reese V. Jenkins, <em class="citetitle">Images and Enterprise</em> (Baltimore: Johns Hopkins University Press, 1975), 112.
1871 </p></div><div id="ftn.idp7173376" class="footnote"><p><a href="#idp7173376" class="para"><sup class="para">[27] </sup></a>
1872
1873 <a class="indexterm" name="idp7253296"></a>
1874 Brian Coe, <em class="citetitle">The Birth of Photography</em> (New York: Taplinger Publishing,
1875 1977), 53.
1876 </p></div><div id="ftn.idp7257312" class="footnote"><p><a href="#idp7257312" class="para"><sup class="para">[28] </sup></a>
1877
1878 Jenkins, 177.
1879 </p></div><div id="ftn.idp7258208" class="footnote"><p><a href="#idp7258208" class="para"><sup class="para">[29] </sup></a>
1880
1881 Based on a chart in Jenkins, p. 178.
1882 </p></div><div id="ftn.idp7252096" class="footnote"><p><a href="#idp7252096" class="para"><sup class="para">[30] </sup></a>
1883
1884 Coe, 58.
1885 </p></div><div id="ftn.idp7268928" class="footnote"><p><a href="#idp7268928" class="para"><sup class="para">[31] </sup></a>
1886
1887 For illustrative cases, see, for example, <em class="citetitle">Pavesich</em>
1888 v. <em class="citetitle">N.E. Life Ins. Co</em>., 50 S.E. 68 (Ga. 1905);
1889 <em class="citetitle">Foster-Milburn Co</em>. v. <em class="citetitle">Chinn</em>, 123090 S.W. 364, 366
1890 (Ky. 1909); <em class="citetitle">Corliss</em> v. <em class="citetitle">Walker</em>, 64 F. 280 (Mass.
1891 Dist. Ct. 1894).
1892 </p></div><div id="ftn.idp7280480" class="footnote"><p><a href="#idp7280480" class="para"><sup class="para">[32] </sup></a>
1893
1894 Samuel D. Warren and Louis D. Brandeis, <span class="quote">«<span class="quote">The Right to Privacy,</span>»</span>
1895 <em class="citetitle">Harvard Law Review</em> 4 (1890): 193.
1896 <a class="indexterm" name="idp7282016"></a>
1897 <a class="indexterm" name="idp7282768"></a>
1898 </p></div><div id="ftn.idp7286256" class="footnote"><p><a href="#idp7286256" class="para"><sup class="para">[33] </sup></a>
1899
1900 See Melville B. Nimmer, <span class="quote">«<span class="quote">The Right of Publicity,</span>»</span> <em class="citetitle">Law and Contemporary
1901 Problems</em> 19 (1954): 203; William L. Prosser, <span class="quote">«<span class="quote">Privacy,</span>»</span> <em class="citetitle">California Law
1902 Review</em> 48 (1960) 398&#8211;407; <em class="citetitle">White</em> v. <em class="citetitle">Samsung Electronics America,
1903 Inc</em>., 971 F.  2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951
1904 (1993).
1905 </p></div><div id="ftn.idp7312496" class="footnote"><p><a href="#idp7312496" class="para"><sup class="para">[34] </sup></a>
1906
1907 H. Edward Goldberg, <span class="quote">«<span class="quote">Essential Presentation Tools: Hardware and
1908 Software You Need to Create Digital Multimedia Presentations,</span>»</span>
1909 cadalyst, February 2002, available at
1910 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #7</a>.
1911 </p></div><div id="ftn.idp7322848" class="footnote"><p><a href="#idp7322848" class="para"><sup class="para">[35] </sup></a>
1912
1913 Judith Van Evra, <em class="citetitle">Television and Child Development</em> (Hillsdale, N.J.:
1914 Lawrence Erlbaum Associates, 1990); <span class="quote">«<span class="quote">Findings on Family and TV
1915 Study,</span>»</span> <em class="citetitle">Denver Post</em>, 25 May 1997, B6.
1916 </p></div><div id="ftn.idp7317168" class="footnote"><p><a href="#idp7317168" class="para"><sup class="para">[36] </sup></a>
1917
1918 Interview with Elizabeth Daley and Stephanie Barish, 13 December
1919 2002.
1920 <a class="indexterm" name="idp7332288"></a>
1921 <a class="indexterm" name="idp7333040"></a>
1922 </p></div><div id="ftn.idp7334832" class="footnote"><p><a href="#idp7334832" class="para"><sup class="para">[37] </sup></a>
1923
1924 See Scott Steinberg, <span class="quote">«<span class="quote">Crichton Gets Medieval on PCs,</span>»</span> E!online, 4
1925 November 2000, available at
1926 <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,
1927 available at
1928 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #9</a>.
1929 </p></div><div id="ftn.idp7343472" class="footnote"><p><a href="#idp7343472" class="para"><sup class="para">[38] </sup></a>
1930
1931 Interview with Daley and Barish.
1932 <a class="indexterm" name="idp7344240"></a>
1933 </p></div><div id="ftn.idp7345456" class="footnote"><p><a href="#idp7345456" class="para"><sup class="para">[39] </sup></a>
1934
1935 Ibid.
1936 </p></div><div id="ftn.idp7413760" class="footnote"><p><a href="#idp7413760" class="para"><sup class="para">[40] </sup></a>
1937
1938 See, for example, Alexis de Tocqueville, <em class="citetitle">Democracy in America</em>,
1939 bk. 1, trans.  Henry Reeve (New York: Bantam Books, 2000), ch. 16.
1940 </p></div><div id="ftn.idp7416480" class="footnote"><p><a href="#idp7416480" class="para"><sup class="para">[41] </sup></a>
1941
1942 Bruce Ackerman and James Fishkin, <span class="quote">«<span class="quote">Deliberation Day,</span>»</span> <em class="citetitle">Journal of
1943 Political Philosophy</em> 10 (2) (2002): 129.
1944 </p></div><div id="ftn.idp7420592" class="footnote"><p><a href="#idp7420592" class="para"><sup class="para">[42] </sup></a>
1945
1946 Cass Sunstein, <em class="citetitle">Republic.com</em> (Princeton: Princeton University Press, 2001),
1947 65&#8211;80, 175, 182, 183, 192.
1948 </p></div><div id="ftn.idp7439072" class="footnote"><p><a href="#idp7439072" class="para"><sup class="para">[43] </sup></a>
1949
1950 Noah Shachtman, <span class="quote">«<span class="quote">With Incessant Postings, a Pundit Stirs the Pot,</span>»</span> New
1951 York Times, 16 January 2003, G5.
1952 </p></div><div id="ftn.idp7412544" class="footnote"><p><a href="#idp7412544" class="para"><sup class="para">[44] </sup></a>
1953
1954 Telephone interview with David Winer, 16 April 2003.
1955 </p></div><div id="ftn.idp7459648" class="footnote"><p><a href="#idp7459648" class="para"><sup class="para">[45] </sup></a>
1956
1957 John Schwartz, <span class="quote">«<span class="quote">Loss of the Shuttle: The Internet; A Wealth of
1958 Information Online,</span>»</span> <em class="citetitle">New York Times</em>, 2 February 2003, A28; Staci
1959 D. Kramer, <span class="quote">«<span class="quote">Shuttle Disaster Coverage Mixed, but Strong Overall,</span>»</span>
1960 Online Journalism Review, 2 February 2003, available at
1961 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #10</a>.
1962 </p></div><div id="ftn.idp7463168" class="footnote"><p><a href="#idp7463168" class="para"><sup class="para">[46] </sup></a>
1963
1964 <a class="indexterm" name="idp7465600"></a>
1965 <a class="indexterm" name="idp7466352"></a>
1966 <a class="indexterm" name="idp7467104"></a>
1967 <a class="indexterm" name="idp7467856"></a>
1968 See Michael Falcone, <span class="quote">«<span class="quote">Does an Editor's Pencil Ruin a Web Log?</span>»</span> <em class="citetitle">New
1969 York Times</em>, 29 September 2003, C4. (<span class="quote">«<span class="quote">Not all news organizations have
1970 been as accepting of employees who blog. Kevin Sites, a CNN
1971 correspondent in Iraq who started a blog about his reporting of the
1972 war on March 9, stopped posting 12 days later at his bosses'
1973 request. Last year Steve Olafson, a <em class="citetitle">Houston Chronicle</em> reporter, was
1974 fired for keeping a personal Web log, published under a pseudonym,
1975 that dealt with some of the issues and people he was covering.</span>»</span>)
1976 </p></div><div id="ftn.idp7499680" class="footnote"><p><a href="#idp7499680" class="para"><sup class="para">[47] </sup></a>
1977
1978 See, for example, Edward Felten and Andrew Appel, <span class="quote">«<span class="quote">Technological Access
1979 Control Interferes with Noninfringing Scholarship,</span>»</span> <em class="citetitle">Communications
1980 of the Association for Computer Machinery</em> 43 (2000): 9.
1981 </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="idp7509088"></a><a class="indexterm" name="idp7509840"></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>
1982 <span class="strong"><strong>In the fall</strong></span> of 2002, Jesse Jordan
1983 of Oceanside, New York, enrolled as a freshman at Rensselaer
1984 Polytechnic Institute, in Troy, New York.  His major at RPI was
1985 information technology. Though he is not a programmer, in October
1986 Jesse decided to begin to tinker with search engine technology that
1987 was available on the RPI network.
1988 </p><p>
1989 RPI is one of America's foremost technological research institutions.
1990 It offers degrees in fields ranging from architecture and engineering
1991 to information sciences. More than 65 percent of its five thousand
1992 undergraduates finished in the top 10 percent of their high school
1993 class. The school is thus a perfect mix of talent and experience to
1994 imagine and then build, a generation for the network age.
1995 </p><p>
1996 RPI's computer network links students, faculty, and administration to
1997 one another. It also links RPI to the Internet. Not everything
1998 available on the RPI network is available on the Internet. But the
1999 network is designed to enable students to get access to the Internet,
2000 as well as more intimate access to other members of the RPI community.
2001 </p><a class="indexterm" name="idxgoogle"></a><p>
2002 Search engines are a measure of a network's intimacy. Google
2003
2004 brought the Internet much closer to all of us by fantastically
2005 improving the quality of search on the network. Specialty search
2006 engines can do this even better. The idea of <span class="quote">«<span class="quote">intranet</span>»</span> search
2007 engines, search engines that search within the network of a particular
2008 institution, is to provide users of that institution with better
2009 access to material from that institution.  Businesses do this all the
2010 time, enabling employees to have access to material that people
2011 outside the business can't get. Universities do it as well.
2012 </p><a class="indexterm" name="idxjordanjesse"></a><a class="indexterm" name="idxmicrosoftnetworkfilesystemof"></a><p>
2013 These engines are enabled by the network technology itself.
2014 Microsoft, for example, has a network file system that makes it very
2015 easy for search engines tuned to that network to query the system for
2016 information about the publicly (within that network) available
2017 content.  Jesse's search engine was built to take advantage of this
2018 technology. It used Microsoft's network file system to build an index
2019 of all the files available within the RPI network.
2020 </p><a class="indexterm" name="idp7527472"></a><p>
2021 Jesse's wasn't the first search engine built for the RPI network.
2022 Indeed, his engine was a simple modification of engines that others
2023 had built. His single most important improvement over those engines
2024 was to fix a bug within the Microsoft file-sharing system that could
2025 cause a user's computer to crash. With the engines that existed
2026 before, if you tried to access a file through a Windows browser that
2027 was on a computer that was off-line, your computer could crash. Jesse
2028 modified the system a bit to fix that problem, by adding a button that
2029 a user could click to see if the machine holding the file was still
2030 on-line.
2031 </p><a class="indexterm" name="idp7529472"></a><p>
2032 Jesse's engine went on-line in late October. Over the following six
2033 months, he continued to tweak it to improve its functionality. By
2034 March, the system was functioning quite well. Jesse had more than one
2035 million files in his directory, including every type of content that might
2036 be on users' computers.
2037 </p><a class="indexterm" name="idp7531152"></a><p>
2038 Thus the index his search engine produced included pictures, which
2039 students could use to put on their own Web sites; copies of notes or
2040 research; copies of information pamphlets; movie clips that students
2041 might have created; university brochures&#8212;basically anything that
2042
2043 users of the RPI network made available in a public folder of their
2044 computer.
2045 </p><a class="indexterm" name="idp7533184"></a><a class="indexterm" name="idp7533936"></a><p>
2046 But the index also included music files. In fact, one quarter of the
2047 files that Jesse's search engine listed were music files. But that
2048 means, of course, that three quarters were not, and&#8212;so that this
2049 point is absolutely clear&#8212;Jesse did nothing to induce people to
2050 put music files in their public folders. He did nothing to target the
2051 search engine to these files. He was a kid tinkering with a
2052 Google-like technology at a university where he was studying
2053 information science, and hence, tinkering was the aim. Unlike Google,
2054 or Microsoft, for that matter, he made no money from this tinkering;
2055 he was not connected to any business that would make any money from
2056 this experiment. He was a kid tinkering with technology in an
2057 environment where tinkering with technology was precisely what he was
2058 supposed to do.
2059 </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="idp7542640"></a><p>
2060 On April 3, 2003, Jesse was contacted by the dean of students at
2061 RPI. The dean informed Jesse that the Recording Industry Association
2062 of America, the RIAA, would be filing a lawsuit against him and three
2063 other students whom he didn't even know, two of them at other
2064 universities.  A few hours later, Jesse was served with papers from
2065 the suit.  As he read these papers and watched the news reports about
2066 them, he was increasingly astonished.
2067 </p><p>
2068 <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
2069 wrong. &#8230;  I don't think there's anything wrong with the search
2070 engine that I ran or &#8230; what I had done to it. I mean, I hadn't
2071 modified it in any way that promoted or enhanced the work of
2072 pirates. I just modified the search engine in a way that would make it
2073 easier to use</span>»</span>&#8212;again, a <span class="emphasis"><em>search engine</em></span>,
2074 which Jesse had not himself built, using the Windows filesharing
2075 system, which Jesse had not himself built, to enable members of the
2076 RPI community to get access to content, which Jesse had not himself
2077 created or posted, and the vast majority of which had nothing to do
2078 with music.
2079 </p><a class="indexterm" name="idp7546784"></a><a class="indexterm" name="idp7547760"></a><a class="indexterm" name="idp7548768"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitsindividualdefendantsintimidatedby"></a><a class="indexterm" name="idp7551424"></a><a class="indexterm" name="idxrecordingindustryassociationofamericariaaintimidationtacticsof"></a><p>
2080 But the RIAA branded Jesse a pirate. They claimed he operated a
2081 network and had therefore <span class="quote">«<span class="quote">willfully</span>»</span> violated copyright laws. They
2082
2083 demanded that he pay them the damages for his wrong. For cases of
2084 <span class="quote">«<span class="quote">willful infringement,</span>»</span> the Copyright Act specifies something lawyers
2085 call <span class="quote">«<span class="quote">statutory damages.</span>»</span> These damages permit a copyright owner to
2086 claim $150,000 per infringement. As the RIAA alleged more than one
2087 hundred specific copyright infringements, they therefore demanded that
2088 Jesse pay them at least $15,000,000.
2089 </p><a class="indexterm" name="idp7555968"></a><a class="indexterm" name="idp7556720"></a><p>
2090 Similar lawsuits were brought against three other students: one other
2091 student at RPI, one at Michigan Technical University, and one at
2092 Princeton. Their situations were similar to Jesse's. Though each case
2093 was different in detail, the bottom line in each was exactly the same:
2094 huge demands for <span class="quote">«<span class="quote">damages</span>»</span> that the RIAA claimed it was entitled to.
2095 If you added up the claims, these four lawsuits were asking courts in
2096 the United States to award the plaintiffs close to $100
2097 <span class="emphasis"><em>billion</em></span>&#8212;six times the
2098 <span class="emphasis"><em>total</em></span> profit of the film industry in
2099 2001.<a href="#ftn.idp7559376" class="footnote" name="idp7559376"><sup class="footnote">[48]</sup></a>
2100 </p><a class="indexterm" name="idp7561152"></a><p>
2101 Jesse called his parents. They were supportive but a bit frightened.
2102 An uncle was a lawyer. He began negotiations with the RIAA. They
2103 demanded to know how much money Jesse had. Jesse had saved
2104 $12,000 from summer jobs and other employment. They demanded
2105 $12,000 to dismiss the case.
2106 </p><a class="indexterm" name="idp7562816"></a><p>
2107 The RIAA wanted Jesse to admit to doing something wrong. He
2108 refused. They wanted him to agree to an injunction that would
2109 essentially make it impossible for him to work in many fields of
2110 technology for the rest of his life. He refused. They made him
2111 understand that this process of being sued was not going to be
2112 pleasant. (As Jesse's father recounted to me, the chief lawyer on the
2113 case, Matt Oppenheimer, told Jesse, <span class="quote">«<span class="quote">You don't want to pay another
2114 visit to a dentist like me.</span>»</span>) And throughout, the RIAA insisted it
2115 would not settle the case until it took every penny Jesse had saved.
2116 </p><a class="indexterm" name="idp7564976"></a><p>
2117 Jesse's family was outraged at these claims. They wanted to fight.
2118 But Jesse's uncle worked to educate the family about the nature of the
2119 American legal system. Jesse could fight the RIAA. He might even
2120 win. But the cost of fighting a lawsuit like this, Jesse was told, would be
2121 at least $250,000. If he won, he would not recover that money. If he
2122
2123 won, he would have a piece of paper saying he had won, and a piece of
2124 paper saying he and his family were bankrupt.
2125 </p><p>
2126 So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
2127 or $12,000 and a settlement.
2128 </p><a class="indexterm" name="idp7567360"></a><a class="indexterm" name="idp7568368"></a><a class="indexterm" name="idp7569376"></a><p>
2129 The recording industry insists this is a matter of law and morality.
2130 Let's put the law aside for a moment and think about the morality.
2131 Where is the morality in a lawsuit like this? What is the virtue in
2132 scapegoatism? The RIAA is an extraordinarily powerful lobby. The
2133 president of the RIAA is reported to make more than $1 million a year.
2134 Artists, on the other hand, are not well paid. The average recording
2135 artist makes $45,900.<a href="#ftn.idp7571088" class="footnote" name="idp7571088"><sup class="footnote">[49]</sup></a>
2136 There are plenty of ways for the RIAA to affect
2137 and direct policy. So where is the morality in taking money from a
2138 student for running a search engine?<a href="#ftn.idp7572656" class="footnote" name="idp7572656"><sup class="footnote">[50]</sup></a>
2139 </p><a class="indexterm" name="idp7574320"></a><a class="indexterm" name="idp7575456"></a><p>
2140 On June 23, Jesse wired his savings to the lawyer working for the
2141 RIAA. The case against him was then dismissed. And with this, this
2142 kid who had tinkered a computer into a $15 million lawsuit became an
2143 activist:
2144 </p><div class="blockquote"><blockquote class="blockquote"><p>
2145 I was definitely not an activist [before]. I never really meant to be
2146 an activist. &#8230; [But] I've been pushed into this. In no way did I
2147 ever foresee anything like this, but I think it's just completely
2148 absurd what the RIAA has done.
2149 </p></blockquote></div><p>
2150 Jesse's parents betray a certain pride in their reluctant activist. As
2151 his father told me, Jesse <span class="quote">«<span class="quote">considers himself very conservative, and so do
2152 I. &#8230; He's  not a tree hugger. &#8230; I  think it's bizarre that they would
2153 pick on him. But he wants to let people know that they're sending the
2154 wrong message. And he wants to correct the record.</span>»</span>
2155 </p><a class="indexterm" name="idp7579360"></a><a class="indexterm" name="idp7580336"></a><a class="indexterm" name="idp7581312"></a><a class="indexterm" name="idp7582288"></a><a class="indexterm" name="idp7583424"></a><a class="indexterm" name="idp7584400"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7559376" class="footnote"><p><a href="#idp7559376" class="para"><sup class="para">[48] </sup></a>
2156
2157
2158 Tim Goral, <span class="quote">«<span class="quote">Recording Industry Goes After Campus P-2-P Networks:
2159 Suit Alleges $97.8 Billion in Damages,</span>»</span> <em class="citetitle">Professional Media Group LCC</em> 6
2160 (2003): 5, available at 2003 WL 55179443.
2161 </p></div><div id="ftn.idp7571088" class="footnote"><p><a href="#idp7571088" class="para"><sup class="para">[49] </sup></a>
2162
2163 Occupational Employment Survey, U.S. Dept. of Labor (2001)
2164 (27&#8211;2042&#8212;Musicians and Singers). See also National Endowment for
2165 the Arts, <em class="citetitle">More Than One in a Blue Moon</em> (2000).
2166 </p></div><div id="ftn.idp7572656" class="footnote"><p><a href="#idp7572656" class="para"><sup class="para">[50] </sup></a>
2167
2168 Douglas Lichtman makes a related point in <span class="quote">«<span class="quote">KaZaA and Punishment,</span>»</span>
2169 <em class="citetitle">Wall Street Journal</em>, 10 September 2003, A24.
2170 </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="idp7588816"></a><p>
2171 <span class="strong"><strong>If <span class="quote">«<span class="quote">piracy</span>»</span> means</strong></span>
2172 using the creative property of others without their
2173 permission&#8212;if <span class="quote">«<span class="quote">if value, then right</span>»</span> is
2174 true&#8212;then the history of the content industry is a history of
2175 piracy. Every important sector of <span class="quote">«<span class="quote">big media</span>»</span>
2176 today&#8212;film, records, radio, and cable TV&#8212;was born of a
2177 kind of piracy so defined. The consistent story is how last
2178 generation's pirates join this generation's country club&#8212;until
2179 now.
2180 </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>
2181 The film industry of Hollywood was built by fleeing pirates.<a href="#ftn.idp7593520" class="footnote" name="idp7593520"><sup class="footnote">[51]</sup></a>
2182 Creators and directors migrated from the East Coast to California in
2183 the early twentieth century in part to escape controls that patents
2184 granted the inventor of filmmaking, Thomas Edison. These controls were
2185 exercised through a monopoly <span class="quote">«<span class="quote">trust,</span>»</span> the Motion Pictures Patents
2186 Company, and were based on Thomas Edison's creative
2187 property&#8212;patents.  Edison formed the MPPC to exercise the rights
2188 this creative property
2189
2190 gave him, and the MPPC was serious about the control it demanded.
2191 </p><p>
2192 As one commentator tells one part of the story,
2193 </p><div class="blockquote"><blockquote class="blockquote"><p>
2194 A January 1909 deadline was set for all companies to comply with
2195 the license. By February, unlicensed outlaws, who referred to
2196 themselves as independents protested the trust and carried on
2197 business without submitting to the Edison monopoly. In the
2198 summer of 1909 the independent movement was in full-swing,
2199 with producers and theater owners using illegal equipment and
2200 imported film stock to create their own underground market.
2201 </p><a class="indexterm" name="idp7598816"></a><a class="indexterm" name="idp7599456"></a><a class="indexterm" name="idp7600208"></a><p>
2202 With the country experiencing a tremendous expansion in the number of
2203 nickelodeons, the Patents Company reacted to the independent movement
2204 by forming a strong-arm subsidiary known as the General Film Company
2205 to block the entry of non-licensed independents. With coercive tactics
2206 that have become legendary, General Film confiscated unlicensed
2207 equipment, discontinued product supply to theaters which showed
2208 unlicensed films, and effectively monopolized distribution with the
2209 acquisition of all U.S. film exchanges, except for the one owned by
2210 the independent William Fox who defied the Trust even after his
2211 license was revoked.<a href="#ftn.idp7601856" class="footnote" name="idp7601856"><sup class="footnote">[52]</sup></a>
2212 </p></blockquote></div><p>
2213 The Napsters of those days, the <span class="quote">«<span class="quote">independents,</span>»</span> were companies like
2214 Fox. And no less than today, these independents were vigorously
2215 resisted.  <span class="quote">«<span class="quote">Shooting was disrupted by machinery stolen, and
2216 `accidents' resulting in loss of negatives, equipment, buildings and
2217 sometimes life and limb frequently occurred.</span>»</span><a href="#ftn.idp7607312" class="footnote" name="idp7607312"><sup class="footnote">[53]</sup></a>
2218 That led the independents to flee the East
2219 Coast. California was remote enough from Edison's reach that
2220 filmmakers there could pirate his inventions without fear of the
2221 law. And the leaders of Hollywood filmmaking, Fox most prominently,
2222 did just that.
2223 </p><p>
2224 Of course, California grew quickly, and the effective enforcement
2225 of federal law eventually spread west. But because patents grant the
2226 patent holder a truly <span class="quote">«<span class="quote">limited</span>»</span> monopoly (just seventeen years at that
2227
2228
2229 time), by the time enough federal marshals appeared, the patents had
2230 expired. A new industry had been born, in part from the piracy of
2231 Edison's creative property.
2232 </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>
2233 The record industry was born of another kind of piracy, though to see
2234 how requires a bit of detail about the way the law regulates music.
2235 </p><a class="indexterm" name="idxfourneauxhenri"></a><a class="indexterm" name="idp7615520"></a><p>
2236 At the time that Edison and Henri Fourneaux invented machines
2237 for reproducing music (Edison the phonograph, Fourneaux the player
2238 piano), the law gave composers the exclusive right to control copies of
2239 their music and the exclusive right to control public performances of
2240 their music. In other words, in 1900, if I wanted a copy of Phil Russel's
2241 1899 hit <span class="quote">«<span class="quote">Happy Mose,</span>»</span> the law said I would have to pay for the right
2242 to get a copy of the musical score, and I would also have to pay for the
2243 right to perform it publicly.
2244 </p><a class="indexterm" name="idp7617568"></a><p>
2245 But what if I wanted to record <span class="quote">«<span class="quote">Happy Mose,</span>»</span> using Edison's phonograph
2246 or Fourneaux's player piano?  Here the law stumbled. It was clear
2247 enough that I would have to buy any copy of the musical score that I
2248 performed in making this recording. And it was clear enough that I
2249 would have to pay for any public performance of the work I was
2250 recording.  But it wasn't totally clear that I would have to pay for a
2251 <span class="quote">«<span class="quote">public performance</span>»</span> if I recorded the song in my own house (even
2252 today, you don't owe the Beatles anything if you sing their songs in
2253 the shower), or if I recorded the song from memory (copies in your
2254 brain are not&#8212;yet&#8212; regulated by copyright law). So if I
2255 simply sang the song into a recording device in the privacy of my own
2256 home, it wasn't clear that I owed the composer anything. And more
2257 importantly, it wasn't clear whether I owed the composer anything if I
2258 then made copies of those recordings.  Because of this gap in the law,
2259 then, I could effectively pirate someone else's song without paying
2260 its composer anything.
2261 </p><a class="indexterm" name="idp7619728"></a><p>
2262 The composers (and publishers) were none too happy about
2263
2264 this capacity to pirate. As South Dakota senator Alfred Kittredge
2265 put it,
2266 <a class="indexterm" name="idp7622144"></a>
2267 </p><div class="blockquote"><blockquote class="blockquote"><p>
2268 Imagine the injustice of the thing. A composer writes a song or an
2269 opera. A publisher buys at great expense the rights to the same and
2270 copyrights it. Along come the phonographic companies and companies who
2271 cut music rolls and deliberately steal the work of the brain of the
2272 composer and publisher without any regard for [their]
2273 rights.<a href="#ftn.idp7624224" class="footnote" name="idp7624224"><sup class="footnote">[54]</sup></a>
2274 </p></blockquote></div><a class="indexterm" name="idp7626768"></a><p>
2275 The innovators who developed the technology to record other
2276 people's works were <span class="quote">«<span class="quote">sponging upon the toil, the work, the talent, and
2277 genius of American composers,</span>»</span><a href="#ftn.idp7628224" class="footnote" name="idp7628224"><sup class="footnote">[55]</sup></a>
2278 and the <span class="quote">«<span class="quote">music publishing industry</span>»</span>
2279 was thereby <span class="quote">«<span class="quote">at the complete mercy of this one pirate.</span>»</span><a href="#ftn.idp7629792" class="footnote" name="idp7629792"><sup class="footnote">[56]</sup></a>
2280 As John Philip
2281 Sousa put it, in as direct a way as possible, <span class="quote">«<span class="quote">When they make money
2282 out of my pieces, I want a share of it.</span>»</span><a href="#ftn.idp7631136" class="footnote" name="idp7631136"><sup class="footnote">[57]</sup></a>
2283 </p><a class="indexterm" name="idp7632160"></a><a class="indexterm" name="idp7632912"></a><a class="indexterm" name="idp7633664"></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>
2284 These arguments have familiar echoes in the wars of our day. So, too,
2285 do the arguments on the other side. The innovators who developed the
2286 player piano argued that <span class="quote">«<span class="quote">it is perfectly demonstrable that the
2287 introduction of automatic music players has not deprived any composer
2288 of anything he had before their introduction.</span>»</span> Rather, the machines
2289 increased the sales of sheet music.<a href="#ftn.idp7641440" class="footnote" name="idp7641440"><sup class="footnote">[58]</sup></a> In any case, the innovators argued, the job of
2290 Congress was <span class="quote">«<span class="quote">to consider first the interest of [the public], whom
2291 they represent, and whose servants they are.</span>»</span> <span class="quote">«<span class="quote">All talk about
2292 `theft,'</span>»</span> the general counsel of the American Graphophone Company
2293 wrote, <span class="quote">«<span class="quote">is the merest claptrap, for there exists no property in ideas
2294 musical, literary or artistic, except as defined by
2295 statute.</span>»</span><a href="#ftn.idp7643824" class="footnote" name="idp7643824"><sup class="footnote">[59]</sup></a>
2296 </p><a class="indexterm" name="idp7644912"></a><p>
2297 The law soon resolved this battle in favor of the composer
2298 <span class="emphasis"><em>and</em></span> the recording artist. Congress amended the
2299 law to make sure that composers would be paid for the <span class="quote">«<span class="quote">mechanical
2300 reproductions</span>»</span> of their music. But rather than simply granting the
2301 composer complete control over the right to make mechanical
2302 reproductions, Congress gave recording artists a right to record the
2303 music, at a price set by Congress, once the composer allowed it to be
2304 recorded once. This is the part of
2305
2306
2307 copyright law that makes cover songs possible. Once a composer
2308 authorizes a recording of his song, others are free to record the same
2309 song, so long as they pay the original composer a fee set by the law.
2310 </p><a class="indexterm" name="idxcompulsorylicense"></a><a class="indexterm" name="idxstatutorylicenses"></a><p>
2311 American law ordinarily calls this a <span class="quote">«<span class="quote">compulsory license,</span>»</span> but I will
2312 refer to it as a <span class="quote">«<span class="quote">statutory license.</span>»</span> A statutory license is a license
2313 whose key terms are set by law. After Congress's amendment of the
2314 Copyright Act in 1909, record companies were free to distribute copies
2315 of recordings so long as they paid the composer (or copyright holder)
2316 the fee set by the statute.
2317 </p><a class="indexterm" name="idxgrishamjohn"></a><p>
2318 This is an exception within the law of copyright. When John Grisham
2319 writes a novel, a publisher is free to publish that novel only if
2320 Grisham gives the publisher permission. Grisham, in turn, is free to
2321 charge whatever he wants for that permission. The price to publish
2322 Grisham is thus set by Grisham, and copyright law ordinarily says you
2323 have no permission to use Grisham's work except with permission of
2324 Grisham.
2325 </p><a class="indexterm" name="idp7653744"></a><a class="indexterm" name="idp7654720"></a><p>
2326 But the law governing recordings gives recording artists less. And
2327 thus, in effect, the law <span class="emphasis"><em>subsidizes</em></span> the recording
2328 industry through a kind of piracy&#8212;by giving recording artists a
2329 weaker right than it otherwise gives creative authors. The Beatles
2330 have less control over their creative work than Grisham does. And the
2331 beneficiaries of this less control are the recording industry and the
2332 public. The recording industry gets something of value for less than
2333 it otherwise would pay; the public gets access to a much wider range
2334 of musical creativity. Indeed, Congress was quite explicit about its
2335 reasons for granting this right. Its fear was the monopoly power of
2336 rights holders, and that that power would stifle follow-on
2337 creativity.<a href="#ftn.idp7596688" class="footnote" name="idp7596688"><sup class="footnote">[60]</sup></a>
2338 </p><a class="indexterm" name="idp7658496"></a><a class="indexterm" name="idp7659472"></a><a class="indexterm" name="idp7660448"></a><p>
2339 While the recording industry has been quite coy about this recently,
2340 historically it has been quite a supporter of the statutory license for
2341 records. As a 1967 report from the House Committee on the Judiciary
2342 relates,
2343 </p><div class="blockquote"><blockquote class="blockquote"><p>
2344 the record producers argued vigorously that the compulsory
2345
2346 license system must be retained. They asserted that the record
2347 industry is a half-billion-dollar business of great economic
2348 importance in the United States and throughout the world; records
2349 today are the principal means of disseminating music, and this creates
2350 special problems, since performers need unhampered access to musical
2351 material on nondiscriminatory terms. Historically, the record
2352 producers pointed out, there were no recording rights before 1909 and
2353 the 1909 statute adopted the compulsory license as a deliberate
2354 anti-monopoly condition on the grant of these rights. They argue that
2355 the result has been an outpouring of recorded music, with the public
2356 being given lower prices, improved quality, and a greater
2357 choice.<a href="#ftn.idp7664368" class="footnote" name="idp7664368"><sup class="footnote">[61]</sup></a>
2358 </p></blockquote></div><a class="indexterm" name="idp7665632"></a><a class="indexterm" name="idp7666608"></a><a class="indexterm" name="idp7667584"></a><a class="indexterm" name="idp7668560"></a><p>
2359 By limiting the rights musicians have, by partially pirating their
2360 creative work, the record producers, and the public, benefit.
2361 </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>
2362 Radio was also born of piracy.
2363 </p><p>
2364 When a radio station plays a record on the air, that constitutes a
2365 <span class="quote">«<span class="quote">public performance</span>»</span> of the composer's work.<a href="#ftn.idp7675152" class="footnote" name="idp7675152"><sup class="footnote">[62]</sup></a>
2366 As I described above, the law gives the composer (or copyright holder)
2367 an exclusive right to public performances of his work. The radio
2368 station thus owes the composer money for that performance.
2369 </p><p>
2370 But when the radio station plays a record, it is not only performing a
2371 copy of the <span class="emphasis"><em>composer's</em></span> work. The radio station is
2372 also performing a copy of the <span class="emphasis"><em>recording artist's</em></span>
2373 work. It's one thing to have <span class="quote">«<span class="quote">Happy Birthday</span>»</span> sung on the radio by the
2374 local children's choir; it's quite another to have it sung by the
2375 Rolling Stones or Lyle Lovett. The recording artist is adding to the
2376 value of the composition performed on the radio station.  And if the
2377 law were perfectly consistent, the radio station would have to pay the
2378 recording artist for his work, just as it pays the composer of the
2379 music for his work.
2380 <a class="indexterm" name="idp7682576"></a>
2381
2382
2383 </p><p>
2384 But it doesn't. Under the law governing radio performances, the radio
2385 station does not have to pay the recording artist. The radio station
2386 need only pay the composer. The radio station thus gets a bit of
2387 something for nothing. It gets to perform the recording artist's work
2388 for free, even if it must pay the composer something for the privilege
2389 of playing the song.
2390 </p><a class="indexterm" name="idxmadonna"></a><p>
2391 This difference can be huge. Imagine you compose a piece of music.
2392 Imagine it is your first. You own the exclusive right to authorize
2393 public performances of that music. So if Madonna wants to sing your
2394 song in public, she has to get your permission.
2395 </p><p>
2396 Imagine she does sing your song, and imagine she likes it a lot. She
2397 then decides to make a recording of your song, and it becomes a top
2398 hit. Under our law, every time a radio station plays your song, you
2399 get some money. But Madonna gets nothing, save the indirect effect on
2400 the sale of her CDs. The public performance of her recording is not a
2401 <span class="quote">«<span class="quote">protected</span>»</span> right. The radio station thus gets to
2402 <span class="emphasis"><em>pirate</em></span> the value of Madonna's work without paying
2403 her anything.
2404 </p><a class="indexterm" name="idp7687968"></a><a class="indexterm" name="idp7688944"></a><p>
2405 No doubt, one might argue that, on balance, the recording artists
2406 benefit. On average, the promotion they get is worth more than the
2407 performance rights they give up. Maybe. But even if so, the law
2408 ordinarily gives the creator the right to make this choice. By making
2409 the choice for him or her, the law gives the radio station the right
2410 to take something for nothing.
2411 </p><a class="indexterm" name="idp7690688"></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>
2412 Cable TV was also born of a kind of piracy.
2413 </p><p>
2414 When cable entrepreneurs first started wiring communities with cable
2415 television in 1948, most refused to pay broadcasters for the content
2416 that they echoed to their customers. Even when the cable companies
2417 started selling access to television broadcasts, they refused to pay
2418
2419 for what they sold. Cable companies were thus Napsterizing
2420 broadcasters' content, but more egregiously than anything Napster ever
2421 did&#8212; Napster never charged for the content it enabled others to
2422 give away.
2423 </p><a class="indexterm" name="idp7695088"></a><a class="indexterm" name="idp7696208"></a><a class="indexterm" name="idp7696960"></a><p>
2424 Broadcasters and copyright owners were quick to attack this theft.
2425 Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
2426 <span class="quote">«<span class="quote">unfair and potentially destructive competition.</span>»</span><a href="#ftn.idp7698368" class="footnote" name="idp7698368"><sup class="footnote">[63]</sup></a>
2427 There may have been a <span class="quote">«<span class="quote">public interest</span>»</span> in spreading the reach of cable
2428 TV, but as Douglas Anello, general counsel to the National Association
2429 of Broadcasters, asked Senator Quentin Burdick during testimony, <span class="quote">«<span class="quote">Does public
2430 interest dictate that you use somebody else's property?</span>»</span><a href="#ftn.idp7701088" class="footnote" name="idp7701088"><sup class="footnote">[64]</sup></a>
2431 As another broadcaster put it,
2432 </p><div class="blockquote"><blockquote class="blockquote"><p>
2433 The extraordinary thing about the CATV business is that it is the
2434 only business I know of where the product that is being sold is not
2435 paid for.<a href="#ftn.idp7702800" class="footnote" name="idp7702800"><sup class="footnote">[65]</sup></a>
2436 </p></blockquote></div><p>
2437 Again, the demand of the copyright holders seemed reasonable enough:
2438 </p><div class="blockquote"><blockquote class="blockquote"><p>
2439 All we are asking for is a very simple thing, that people who now
2440 take our property for nothing pay for it. We are trying to stop
2441 piracy and I don't think there is any lesser word to describe it. I
2442 think there are harsher words which would fit it.<a href="#ftn.idp7705232" class="footnote" name="idp7705232"><sup class="footnote">[66]</sup></a>
2443 </p></blockquote></div><a class="indexterm" name="idp7706448"></a><p>
2444 These were <span class="quote">«<span class="quote">free-ride[rs],</span>»</span> Screen Actor's Guild president Charlton
2445 Heston said, who were <span class="quote">«<span class="quote">depriving actors of
2446 compensation.</span>»</span><a href="#ftn.idp7708176" class="footnote" name="idp7708176"><sup class="footnote">[67]</sup></a>
2447 </p><p>
2448 But again, there was another side to the debate. As Assistant Attorney
2449 General Edwin Zimmerman put it,
2450 </p><div class="blockquote"><blockquote class="blockquote"><p>
2451 Our point here is that unlike the problem of whether you have any
2452 copyright protection at all, the problem here is whether copyright
2453 holders who are already compensated, who already have a monopoly,
2454 should be permitted to extend that monopoly. &#8230; The
2455
2456
2457 question here is how much compensation they should have and
2458 how far back they should carry their right to compensation.<a href="#ftn.idp7711232" class="footnote" name="idp7711232"><sup class="footnote">[68]</sup></a>
2459 <a class="indexterm" name="idp7713424"></a>
2460 </p></blockquote></div><p>
2461 Copyright owners took the cable companies to court. Twice the Supreme
2462 Court held that the cable companies owed the copyright owners nothing.
2463 </p><p>
2464 It took Congress almost thirty years before it resolved the question
2465 of whether cable companies had to pay for the content they <span class="quote">«<span class="quote">pirated.</span>»</span>
2466 In the end, Congress resolved this question in the same way that it
2467 resolved the question about record players and player pianos. Yes,
2468 cable companies would have to pay for the content that they broadcast;
2469 but the price they would have to pay was not set by the copyright
2470 owner.  The price was set by law, so that the broadcasters couldn't
2471 exercise veto power over the emerging technologies of cable. Cable
2472 companies thus built their empire in part upon a <span class="quote">«<span class="quote">piracy</span>»</span> of the value
2473 created by broadcasters' content.
2474 </p><a class="indexterm" name="idp7716752"></a><a class="indexterm" name="idp7717728"></a><p>
2475 <span class="strong"><strong>These separate stories</strong></span> sing a
2476 common theme. If <span class="quote">«<span class="quote">piracy</span>»</span> means using value from someone
2477 else's creative property without permission from that creator&#8212;as
2478 it is increasingly described today<a href="#ftn.idp7712416" class="footnote" name="idp7712416"><sup class="footnote">[69]</sup></a>
2479 &#8212; then <span class="emphasis"><em>every</em></span> industry affected by copyright
2480 today is the product and beneficiary of a certain kind of
2481 piracy. Film, records, radio, cable TV. &#8230; The list is long and
2482 could well be expanded. Every generation welcomes the pirates from the
2483 last. Every generation&#8212;until now.
2484 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7593520" class="footnote"><p><a href="#idp7593520" class="para"><sup class="para">[51] </sup></a>
2485
2486 <a class="indexterm" name="idp7594160"></a>
2487 I am grateful to Peter DiMauro for pointing me to this extraordinary
2488 history. See also Siva Vaidhyanathan, <em class="citetitle">Copyrights and Copywrongs</em>, 87&#8211;93,
2489 which details Edison's <span class="quote">«<span class="quote">adventures</span>»</span> with copyright and patent.
2490 </p></div><div id="ftn.idp7601856" class="footnote"><p><a href="#idp7601856" class="para"><sup class="para">[52] </sup></a>
2491
2492 J. A. Aberdeen, <em class="citetitle">Hollywood Renegades: The Society of Independent Motion
2493 Picture Producers</em> (Cobblestone Entertainment, 2000) and expanded texts
2494 posted at <span class="quote">«<span class="quote">The Edison Movie Monopoly: The Motion Picture Patents
2495 Company vs. the Independent Outlaws,</span>»</span> available at
2496 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #11</a>. For a
2497 discussion of the economic motive behind both these limits and the
2498 limits imposed by Victor on phonographs, see Randal C. Picker, <span class="quote">«<span class="quote">From
2499 Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and
2500 the Propertization of Copyright</span>»</span> (September 2002), University of
2501 Chicago Law School, James M. Olin Program in Law and Economics,
2502 Working Paper No. 159.
2503 <a class="indexterm" name="idp7604896"></a>
2504 </p></div><div id="ftn.idp7607312" class="footnote"><p><a href="#idp7607312" class="para"><sup class="para">[53] </sup></a>
2505
2506 Marc Wanamaker, <span class="quote">«<span class="quote">The First Studios,</span>»</span> <em class="citetitle">The Silents Majority</em>, archived at
2507 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #12</a>.
2508 </p></div><div id="ftn.idp7624224" class="footnote"><p><a href="#idp7624224" class="para"><sup class="para">[54] </sup></a>
2509
2510 To Amend and Consolidate the Acts Respecting Copyright: Hearings on
2511 S. 6330 and H.R. 19853 Before the (Joint) Committees on Patents, 59th
2512 Cong. 59, 1st sess. (1906) (statement of Senator Alfred B. Kittredge,
2513 of South Dakota, chairman), reprinted in <em class="citetitle">Legislative History of the
2514 Copyright Act</em>, E. Fulton Brylawski and Abe Goldman, eds. (South
2515 Hackensack, N.J.: Rothman Reprints, 1976).
2516 <a class="indexterm" name="idp7625632"></a>
2517 </p></div><div id="ftn.idp7628224" class="footnote"><p><a href="#idp7628224" class="para"><sup class="para">[55] </sup></a>
2518
2519 To Amend and Consolidate the Acts Respecting Copyright, 223
2520 (statement of Nathan Burkan, attorney for the Music Publishers Association).
2521 </p></div><div id="ftn.idp7629792" class="footnote"><p><a href="#idp7629792" class="para"><sup class="para">[56] </sup></a>
2522
2523 To Amend and Consolidate the Acts Respecting Copyright, 226
2524 (statement of Nathan Burkan, attorney for the Music Publishers Association).
2525 </p></div><div id="ftn.idp7631136" class="footnote"><p><a href="#idp7631136" class="para"><sup class="para">[57] </sup></a>
2526
2527 To Amend and Consolidate the Acts Respecting Copyright, 23
2528 (statement of John Philip Sousa, composer).
2529 </p></div><div id="ftn.idp7641440" class="footnote"><p><a href="#idp7641440" class="para"><sup class="para">[58] </sup></a>
2530
2531
2532 To Amend and Consolidate the Acts Respecting Copyright, 283&#8211;84
2533 (statement of Albert Walker, representative of the Auto-Music
2534 Perforating Company of New York).
2535 </p></div><div id="ftn.idp7643824" class="footnote"><p><a href="#idp7643824" class="para"><sup class="para">[59] </sup></a>
2536
2537 To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared
2538 memorandum of Philip Mauro, general patent counsel of the American
2539 Graphophone Company Association).
2540 </p></div><div id="ftn.idp7596688" class="footnote"><p><a href="#idp7596688" class="para"><sup class="para">[60] </sup></a>
2541
2542
2543 Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and
2544 H.R. 11794 Before the (Joint) Committee on Patents, 60th Cong., 1st
2545 sess., 217 (1908) (statement of Senator Reed Smoot, chairman), reprinted
2546 in <em class="citetitle">Legislative History of the 1909 Copyright Act</em>, E. Fulton Brylawski and
2547 Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976).
2548 </p></div><div id="ftn.idp7664368" class="footnote"><p><a href="#idp7664368" class="para"><sup class="para">[61] </sup></a>
2549
2550 Copyright Law Revision: Report to Accompany H.R. 2512, House Committee
2551 on the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8
2552 March 1967). I am grateful to Glenn Brown for drawing my attention to
2553 this report.</p></div><div id="ftn.idp7675152" class="footnote"><p><a href="#idp7675152" class="para"><sup class="para">[62] </sup></a>
2554
2555 See 17 <em class="citetitle">United States Code</em>, sections 106 and 110. At the beginning,
2556 record companies printed <span class="quote">«<span class="quote">Not Licensed for Radio Broadcast</span>»</span> and other
2557 messages purporting to restrict the ability to play a record on a
2558 radio station.  Judge Learned Hand rejected the argument that a
2559 warning attached to a record might restrict the rights of the radio
2560 station. See <em class="citetitle">RCA Manufacturing Co</em>. v. <em class="citetitle">Whiteman</em>, 114 F. 2d 86 (2nd
2561 Cir. 1940). See also Randal C.  Picker, <span class="quote">«<span class="quote">From Edison to the Broadcast
2562 Flag: Mechanisms of Consent and Refusal and the Propertization of
2563 Copyright,</span>»</span> <em class="citetitle">University of Chicago Law Review</em> 70 (2003): 281.
2564 <a class="indexterm" name="idp7678624"></a>
2565 <a class="indexterm" name="idp7679376"></a>
2566 </p></div><div id="ftn.idp7698368" class="footnote"><p><a href="#idp7698368" class="para"><sup class="para">[63] </sup></a>
2567
2568 Copyright Law Revision&#8212;CATV: Hearing on S. 1006 Before the
2569 Subcommittee on Patents, Trademarks, and Copyrights of the Senate
2570 Committee on the Judiciary, 89th Cong., 2nd sess., 78 (1966)
2571 (statement of Rosel H. Hyde, chairman of the Federal Communications
2572 Commission).
2573 <a class="indexterm" name="idp7695232"></a>
2574 </p></div><div id="ftn.idp7701088" class="footnote"><p><a href="#idp7701088" class="para"><sup class="para">[64] </sup></a>
2575
2576 Copyright Law Revision&#8212;CATV, 116 (statement of Douglas A. Anello,
2577 general counsel of the National Association of Broadcasters).
2578 </p></div><div id="ftn.idp7702800" class="footnote"><p><a href="#idp7702800" class="para"><sup class="para">[65] </sup></a>
2579
2580 Copyright Law Revision&#8212;CATV, 126 (statement of Ernest W. Jennes,
2581 general counsel of the Association of Maximum Service Telecasters, Inc.).
2582 </p></div><div id="ftn.idp7705232" class="footnote"><p><a href="#idp7705232" class="para"><sup class="para">[66] </sup></a>
2583
2584 Copyright Law Revision&#8212;CATV, 169 (joint statement of Arthur B.
2585 Krim, president of United Artists Corp., and John Sinn, president of
2586 United Artists Television, Inc.).
2587 </p></div><div id="ftn.idp7708176" class="footnote"><p><a href="#idp7708176" class="para"><sup class="para">[67] </sup></a>
2588
2589 Copyright Law Revision&#8212;CATV, 209 (statement of Charlton Heston,
2590 president of the Screen Actors Guild).
2591 <a class="indexterm" name="idp7708944"></a>
2592 </p></div><div id="ftn.idp7711232" class="footnote"><p><a href="#idp7711232" class="para"><sup class="para">[68] </sup></a>
2593
2594 Copyright Law Revision&#8212;CATV, 216 (statement of Edwin M.
2595 Zimmerman, acting assistant attorney general).
2596 <a class="indexterm" name="idp7712544"></a>
2597 </p></div><div id="ftn.idp7712416" class="footnote"><p><a href="#idp7712416" class="para"><sup class="para">[69] </sup></a>
2598
2599 See, for example, National Music Publisher's Association, <em class="citetitle">The Engine
2600 of Free Expression: Copyright on the Internet&#8212;The Myth of Free
2601 Information</em>, available at
2602 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #13</a>. <span class="quote">«<span class="quote">The
2603 threat of piracy&#8212;the use of someone else's creative work without
2604 permission or compensation&#8212;has grown with the Internet.</span>»</span>
2605 </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>
2606 <span class="strong"><strong>There is piracy</strong></span> of copyrighted
2607 material. Lots of it. This piracy comes in many forms. The most
2608 significant is commercial piracy, the unauthorized taking of other
2609 people's content within a commercial context. Despite the many
2610 justifications that are offered in its defense, this taking is
2611 wrong. No one should condone it, and the law should stop it.
2612 </p><p>
2613 But as well as copy-shop piracy, there is another kind of <span class="quote">«<span class="quote">taking</span>»</span>
2614 that is more directly related to the Internet. That taking, too, seems
2615 wrong to many, and it is wrong much of the time. Before we paint this
2616 taking <span class="quote">«<span class="quote">piracy,</span>»</span> however, we should understand its nature a bit more.
2617 For the harm of this taking is significantly more ambiguous than
2618 outright copying, and the law should account for that ambiguity, as it
2619 has so often done in the past.
2620
2621 </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="idp7729744"></a><a class="indexterm" name="idxcdsforeign"></a><p>
2622 All across the world, but especially in Asia and Eastern Europe, there
2623 are businesses that do nothing but take others people's copyrighted
2624 content, copy it, and sell it&#8212;all without the permission of a copyright
2625 owner. The recording industry estimates that it loses about $4.6 billion
2626 every year to physical piracy<a href="#ftn.idp7711360" class="footnote" name="idp7711360"><sup class="footnote">[70]</sup></a>
2627 (that works out to one in three CDs sold worldwide). The MPAA
2628 estimates that it loses $3 billion annually worldwide to piracy.
2629 </p><p>
2630 This is piracy plain and simple. Nothing in the argument of this
2631 book, nor in the argument that most people make when talking about
2632 the subject of this book, should draw into doubt this simple point:
2633 This piracy is wrong.
2634 </p><p>
2635 Which is not to say that excuses and justifications couldn't be made
2636 for it. We could, for example, remind ourselves that for the first one
2637 hundred years of the American Republic, America did not honor foreign
2638 copyrights. We were born, in this sense, a pirate nation. It might
2639 therefore seem hypocritical for us to insist so strongly that other
2640 developing nations treat as wrong what we, for the first hundred years
2641 of our existence, treated as right.
2642 </p><p>
2643 That excuse isn't terribly strong. Technically, our law did not ban
2644 the taking of foreign works. It explicitly limited itself to American
2645 works. Thus the American publishers who published foreign works
2646 without the permission of foreign authors were not violating any rule.
2647 The copy shops in Asia, by contrast, are violating Asian law. Asian
2648 law does protect foreign copyrights, and the actions of the copy shops
2649 violate that law. So the wrong of piracy that they engage in is not
2650 just a moral wrong, but a legal wrong, and not just an internationally
2651 legal wrong, but a locally legal wrong as well.
2652 </p><p>
2653 True, these local rules have, in effect, been imposed upon these
2654 countries. No country can be part of the world economy and choose
2655
2656 not to protect copyright internationally. We may have been born a
2657 pirate nation, but we will not allow any other nation to have a
2658 similar childhood.
2659 </p><p>
2660 If a country is to be treated as a sovereign, however, then its laws are
2661 its laws regardless of their source. The international law under which
2662 these nations live gives them some opportunities to escape the burden
2663 of intellectual property law.<a href="#ftn.idp7739472" class="footnote" name="idp7739472"><sup class="footnote">[71]</sup></a> In my view, more developing nations should take
2664 advantage of that opportunity, but when they don't, then their laws
2665 should be respected. And under the laws of these nations, this piracy
2666 is wrong.
2667 </p><a class="indexterm" name="idp7744224"></a><p>
2668 Alternatively, we could try to excuse this piracy by noting that in
2669 any case, it does no harm to the industry. The Chinese who get access
2670 to American CDs at 50 cents a copy are not people who would have
2671 bought those American CDs at $15 a copy. So no one really has any
2672 less money than they otherwise would have had.<a href="#ftn.idp7745568" class="footnote" name="idp7745568"><sup class="footnote">[72]</sup></a>
2673 </p><p>
2674 This is often true (though I have friends who have purchased many
2675 thousands of pirated DVDs who certainly have enough money to pay
2676 for the content they have taken), and it does mitigate to some degree
2677 the harm caused by such taking. Extremists in this debate love to say,
2678 <span class="quote">«<span class="quote">You wouldn't go into Barnes &amp; Noble and take a book off of the shelf
2679 without paying; why should it be any different with on-line music?</span>»</span>
2680 The difference is, of course, that when you take a book from Barnes &amp;
2681 Noble, it has one less book to sell. By contrast, when you take an MP3
2682 from a computer network, there is not one less CD that can be sold.
2683 The physics of piracy of the intangible are different from the physics of
2684 piracy of the tangible.
2685 </p><a class="indexterm" name="idp7750560"></a><p>
2686 This argument is still very weak. However, although copyright is a
2687 property right of a very special sort, it <span class="emphasis"><em>is</em></span> a
2688 property right. Like all property rights, the copyright gives the
2689 owner the right to decide the terms under which content is shared. If
2690 the copyright owner doesn't want to sell, she doesn't have to. There
2691 are exceptions: important statutory licenses that apply to copyrighted
2692 content regardless of the wish of the copyright owner. Those licenses
2693 give people the right to <span class="quote">«<span class="quote">take</span>»</span> copyrighted content whether or not the
2694 copyright owner wants to sell. But
2695
2696
2697 where the law does not give people the right to take content, it is
2698 wrong to take that content even if the wrong does no harm. If we have
2699 a property system, and that system is properly balanced to the
2700 technology of a time, then it is wrong to take property without the
2701 permission of a property owner. That is exactly what <span class="quote">«<span class="quote">property</span>»</span> means.
2702 </p><a class="indexterm" name="idp7754272"></a><a class="indexterm" name="idp7755024"></a><a class="indexterm" name="idp7756032"></a><a class="indexterm" name="idp7756784"></a><a class="indexterm" name="idp7757536"></a><a class="indexterm" name="idp7758288"></a><a class="indexterm" name="idp7759296"></a><a class="indexterm" name="idp7760048"></a><a class="indexterm" name="idp7761056"></a><p>
2703 Finally, we could try to excuse this piracy with the argument that the
2704 piracy actually helps the copyright owner. When the Chinese <span class="quote">«<span class="quote">steal</span>»</span>
2705 Windows, that makes the Chinese dependent on Microsoft.  Microsoft
2706 loses the value of the software that was taken. But it gains users who
2707 are used to life in the Microsoft world. Over time, as the nation
2708 grows more wealthy, more and more people will buy software rather than
2709 steal it. And hence over time, because that buying will benefit
2710 Microsoft, Microsoft benefits from the piracy. If instead of pirating
2711 Microsoft Windows, the Chinese used the free GNU/Linux operating
2712 system, then these Chinese users would not eventually be buying
2713 Microsoft.  Without piracy, then, Microsoft would lose.
2714 </p><a class="indexterm" name="idp7763584"></a><p>
2715 This argument, too, is somewhat true. The addiction strategy is a good
2716 one. Many businesses practice it. Some thrive because of it. Law
2717 students, for example, are given free access to the two largest legal
2718 databases. The companies marketing both hope the students will become
2719 so used to their service that they will want to use it and not the
2720 other when they become lawyers (and must pay high subscription fees).
2721 </p><a class="indexterm" name="idp7765408"></a><a class="indexterm" name="idp7766160"></a><a class="indexterm" name="idp7766912"></a><a class="indexterm" name="idp7767664"></a><p>
2722 Still, the argument is not terribly persuasive. We don't give the
2723 alcoholic a defense when he steals his first beer, merely because that
2724 will make it more likely that he will buy the next three. Instead, we
2725 ordinarily allow businesses to decide for themselves when it is best
2726 to give their product away. If Microsoft fears the competition of
2727 GNU/Linux, then Microsoft can give its product away, as it did, for
2728 example, with Internet Explorer to fight Netscape. A property right
2729 means giving the property owner the right to say who gets access to
2730 what&#8212;at least ordinarily. And if the law properly balances the
2731 rights of the copyright owner with the rights of access, then
2732 violating the law is still wrong.
2733 </p><p>
2734
2735 Thus, while I understand the pull of these justifications for piracy,
2736 and I certainly see the motivation, in my view, in the end, these efforts
2737 at justifying commercial piracy simply don't cut it. This kind of piracy
2738 is rampant and just plain wrong. It doesn't transform the content it
2739 steals; it doesn't transform the market it competes in. It merely gives
2740 someone access to something that the law says he should not have.
2741 Nothing has changed to draw that law into doubt. This form of piracy
2742 is flat out wrong.
2743 </p><p>
2744 But as the examples from the four chapters that introduced this part
2745 suggest, even if some piracy is plainly wrong, not all <span class="quote">«<span class="quote">piracy</span>»</span> is. Or
2746 at least, not all <span class="quote">«<span class="quote">piracy</span>»</span> is wrong if that term is understood in the
2747 way it is increasingly used today. Many kinds of <span class="quote">«<span class="quote">piracy</span>»</span> are useful
2748 and productive, to produce either new content or new ways of doing
2749 business.  Neither our tradition nor any tradition has ever banned all
2750 <span class="quote">«<span class="quote">piracy</span>»</span> in that sense of the term.
2751 </p><p>
2752 This doesn't mean that there are no questions raised by the latest
2753 piracy concern, peer-to-peer file sharing. But it does mean that we
2754 need to understand the harm in peer-to-peer sharing a bit more before
2755 we condemn it to the gallows with the charge of piracy.
2756 </p><p>
2757 For (1) like the original Hollywood, p2p sharing escapes an overly
2758 controlling industry; and (2) like the original recording industry, it
2759 simply exploits a new way to distribute content; but (3) unlike cable
2760 TV, no one is selling the content that is shared on p2p services.
2761 </p><p>
2762 These differences distinguish p2p sharing from true piracy. They
2763 should push us to find a way to protect artists while enabling this
2764 sharing to survive.
2765 </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>
2766 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]
2767 the author of [his] profit.</span>»</span><a href="#ftn.idp7777152" class="footnote" name="idp7777152"><sup class="footnote">[73]</sup></a>
2768 This means we must determine whether
2769 and how much p2p sharing harms before we know how strongly the
2770
2771 law should seek to either prevent it or find an alternative to assure the
2772 author of his profit.
2773 </p><p>
2774 <a class="indexterm" name="idp7779552"></a>
2775 <a class="indexterm" name="idp7780304"></a>
2776 <a class="indexterm" name="idxnapster"></a>
2777 Peer-to-peer sharing was made famous by Napster. But the inventors of
2778 the Napster technology had not made any major technological
2779 innovations.  Like every great advance in innovation on the Internet
2780 (and, arguably, off the Internet as well<a href="#ftn.idp7782544" class="footnote" name="idp7782544"><sup class="footnote">[74]</sup></a>), Shawn Fanning and crew had simply
2781 put together components that had been developed independently.
2782 </p><p>
2783 <a class="indexterm" name="idp7786608"></a>
2784 <a class="indexterm" name="idp7787360"></a>
2785 <a class="indexterm" name="idp7788368"></a>
2786 The result was spontaneous combustion. Launched in July 1999,
2787 Napster amassed over 10 million users within nine months. After
2788 eighteen months, there were close to 80 million registered users of the
2789 system.<a href="#ftn.idp7789600" class="footnote" name="idp7789600"><sup class="footnote">[75]</sup></a>
2790 Courts quickly shut Napster down, but other services emerged
2791 to take its place. (Kazaa is currently the most popular p2p service. It
2792 boasts over 100 million members.) These services' systems are different
2793 architecturally, though not very different in function: Each enables
2794 users to make content available to any number of other users. With a
2795 p2p system, you can share your favorite songs with your best friend&#8212;
2796 or your 20,000 best friends.
2797 </p><a class="indexterm" name="idp7794208"></a><p>
2798 According to a number of estimates, a huge proportion of Americans
2799 have tasted file-sharing technology. A study by Ipsos-Insight in
2800 September 2002 estimated that 60 million Americans had downloaded
2801 music&#8212;28 percent of Americans older than 12.<a href="#ftn.idp7794640" class="footnote" name="idp7794640"><sup class="footnote">[76]</sup></a>
2802 A survey by the NPD group quoted in <em class="citetitle">The New York Times</em>
2803 estimated that 43 million citizens used file-sharing networks to
2804 exchange content in May 2003.<a href="#ftn.idp7798320" class="footnote" name="idp7798320"><sup class="footnote">[77]</sup></a>
2805 The vast majority of these are not kids. Whatever the actual figure, a
2806 massive quantity of content is being <span class="quote">«<span class="quote">taken</span>»</span> on these networks. The
2807 ease and inexpensiveness of file-sharing networks have inspired
2808 millions to enjoy music in a way that they hadn't before.
2809 </p><p>
2810 Some of this enjoying involves copyright infringement. Some of it does
2811 not. And even among the part that is technically copyright
2812 infringement, calculating the actual harm to copyright owners is more
2813 complicated than one might think. So consider&#8212;a bit more
2814 carefully than the polarized voices around this debate usually
2815 do&#8212;the kinds of sharing that file sharing enables, and the kinds
2816 of harm it entails.
2817 </p><p>
2818
2819 File sharers share different kinds of content. We can divide these
2820 different kinds into four types.
2821 </p><div class="orderedlist"><ol class="orderedlist" type="A"><li class="listitem"><a class="indexterm" name="idp7803456"></a><p>
2822
2823 There are some who use sharing networks as substitutes for purchasing
2824 content. Thus, when a new Madonna CD is released, rather than buying
2825 the CD, these users simply take it. We might quibble about whether
2826 everyone who takes it would actually have bought it if sharing didn't
2827 make it available for free. Most probably wouldn't have, but clearly
2828 there are some who would.  The latter are the target of category A:
2829 users who download instead of purchasing.
2830 </p></li><li class="listitem"><p>
2831
2832 There are some who use sharing networks to sample music before
2833 purchasing it. Thus, a friend sends another friend an MP3 of an artist
2834 he's not heard of. The other friend then buys CDs by that artist. This
2835 is a kind of targeted advertising, quite likely to succeed.  If the
2836 friend recommending the album gains nothing from a bad recommendation,
2837 then one could expect that the recommendations will actually be quite
2838 good. The net effect of this sharing could increase the quantity of
2839 music purchased.
2840 </p></li><li class="listitem"><p>
2841
2842 There are many who use sharing networks to get access to copyrighted
2843 content that is no longer sold or that they would not have purchased
2844 because the transaction costs off the Net are too high. This use of
2845 sharing networks is among the most rewarding for many. Songs that were
2846 part of your childhood but have long vanished from the marketplace
2847 magically appear again on the network. (One friend told me that when
2848 she discovered Napster, she spent a solid weekend <span class="quote">«<span class="quote">recalling</span>»</span> old
2849 songs. She was astonished at the range and mix of content that was
2850 available.)  For content not sold, this is still technically a
2851 violation of copyright, though because the copyright owner is not
2852 selling the content anymore, the economic harm is zero&#8212;the same
2853 harm that occurs when I sell my collection of 1960s 45-rpm records to
2854 a local collector.
2855 </p></li><li class="listitem"><p>
2856
2857
2858 Finally, there are many who use sharing networks to get access
2859 to content that is not copyrighted or that the copyright owner
2860 wants to give away.
2861 </p></li></ol></div><p>
2862 How do these different types of sharing balance out?
2863 </p><p>
2864 Let's start with some simple but important points. From the
2865 perspective of the law, only type D sharing is clearly legal. From the
2866 perspective of economics, only type A sharing is clearly
2867 harmful.<a href="#ftn.idp7810784" class="footnote" name="idp7810784"><sup class="footnote">[78]</sup></a>
2868 Type B sharing is illegal but plainly beneficial. Type C sharing is
2869 illegal, yet good for society (since more exposure to music is good)
2870 and harmless to the artist (since the work is not otherwise
2871 available). So how sharing matters on balance is a hard question to
2872 answer&#8212;and certainly much more difficult than the current
2873 rhetoric around the issue suggests.
2874 </p><p>
2875 Whether on balance sharing is harmful depends importantly on how
2876 harmful type A sharing is. Just as Edison complained about Hollywood,
2877 composers complained about piano rolls, recording artists complained
2878 about radio, and broadcasters complained about cable TV, the music
2879 industry complains that type A sharing is a kind of <span class="quote">«<span class="quote">theft</span>»</span> that is
2880 <span class="quote">«<span class="quote">devastating</span>»</span> the industry.
2881 </p><a class="indexterm" name="idxcassette"></a><p>
2882 While the numbers do suggest that sharing is harmful, how
2883 harmful is harder to reckon. It has long been the recording industry's
2884 practice to blame technology for any drop in sales. The history of
2885 cassette recording is a good example. As a study by Cap Gemini Ernst
2886 &amp; Young put it, <span class="quote">«<span class="quote">Rather than exploiting this new, popular
2887 technology, the labels fought it.</span>»</span><a href="#ftn.idp7817264" class="footnote" name="idp7817264"><sup class="footnote">[79]</sup></a>
2888 The labels claimed that every album taped was an album unsold, and
2889 when record sales fell by 11.4 percent in 1981, the industry claimed
2890 that its point was proved. Technology was the problem, and banning or
2891 regulating technology was the answer.
2892 </p><a class="indexterm" name="idp7821184"></a><p>
2893 Yet soon thereafter, and before Congress was given an opportunity
2894 to enact regulation, MTV was launched, and the industry had a record
2895 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
2896 not the fault of the tapers&#8212;who did not [stop after MTV came into
2897
2898 being]&#8212;but had to a large extent resulted from stagnation in musical
2899 innovation at the major labels.</span>»</span><a href="#ftn.idp7746944" class="footnote" name="idp7746944"><sup class="footnote">[80]</sup></a>
2900 </p><a class="indexterm" name="idp7824752"></a><p>
2901 But just because the industry was wrong before does not mean it is
2902 wrong today. To evaluate the real threat that p2p sharing presents to
2903 the industry in particular, and society in general&#8212;or at least
2904 the society that inherits the tradition that gave us the film
2905 industry, the record industry, the radio industry, cable TV, and the
2906 VCR&#8212;the question is not simply whether type A sharing is
2907 harmful. The question is also <span class="emphasis"><em>how</em></span> harmful type A
2908 sharing is, and how beneficial the other types of sharing are.
2909 </p><p>
2910 We start to answer this question by focusing on the net harm, from the
2911 standpoint of the industry as a whole, that sharing networks cause.
2912 The <span class="quote">«<span class="quote">net harm</span>»</span> to the industry as a whole is the amount by which type
2913 A sharing exceeds type B. If the record companies sold more records
2914 through sampling than they lost through substitution, then sharing
2915 networks would actually benefit music companies on balance. They would
2916 therefore have little <span class="emphasis"><em>static</em></span> reason to resist
2917 them.
2918
2919 </p><a class="indexterm" name="idxcdssales"></a><p>
2920 Could that be true? Could the industry as a whole be gaining because
2921 of file sharing? Odd as that might sound, the data about CD sales
2922 actually suggest it might be close.
2923 </p><p>
2924 In 2002, the RIAA reported that CD sales had fallen by 8.9 percent,
2925 from 882 million to 803 million units; revenues fell 6.7
2926 percent.<a href="#ftn.idp7831088" class="footnote" name="idp7831088"><sup class="footnote">[81]</sup></a>
2927 This confirms a trend over the past few years. The RIAA blames
2928 Internet piracy for the trend, though there are many other causes that
2929 could account for this drop. SoundScan, for example, reports a more
2930 than 20 percent drop in the number of CDs released since 1999. That no
2931 doubt accounts for some of the decrease in sales. Rising prices could
2932 account for at least some of the loss. <span class="quote">«<span class="quote">From 1999 to 2001, the average
2933 price of a CD rose 7.2 percent, from $13.04 to $14.19.</span>»</span><a href="#ftn.idp7835616" class="footnote" name="idp7835616"><sup class="footnote">[82]</sup></a>
2934 Competition from other forms of media could also account for some of
2935 the decline. As Jane Black of <em class="citetitle">BusinessWeek</em> notes, <span class="quote">«<span class="quote">The
2936 soundtrack to the film <em class="citetitle">High Fidelity</em> has a list price of
2937 $18.98. You could get the whole movie [on DVD] for
2938 $19.99.</span>»</span><a href="#ftn.idp7839632" class="footnote" name="idp7839632"><sup class="footnote">[83]</sup></a>
2939 </p><p>
2940
2941
2942 But let's assume the RIAA is right, and all of the decline in CD sales
2943 is because of Internet sharing. Here's the rub: In the same period
2944 that the RIAA estimates that 803 million CDs were sold, the RIAA
2945 estimates that 2.1 billion CDs were downloaded for free. Thus,
2946 although 2.6 times the total number of CDs sold were downloaded for
2947 free, sales revenue fell by just 6.7 percent.
2948 </p><p>
2949 There are too many different things happening at the same time to
2950 explain these numbers definitively, but one conclusion is unavoidable:
2951 The recording industry constantly asks, <span class="quote">«<span class="quote">What's the difference between
2952 downloading a song and stealing a CD?</span>»</span>&#8212;but their own numbers
2953 reveal the difference. If I steal a CD, then there is one less CD to
2954 sell. Every taking is a lost sale. But on the basis of the numbers the
2955 RIAA provides, it is absolutely clear that the same is not true of
2956 downloads. If every download were a lost sale&#8212;if every use of
2957 Kazaa <span class="quote">«<span class="quote">rob[bed] the author of [his] profit</span>»</span>&#8212;then the industry
2958 would have suffered a 100 percent drop in sales last year, not a 7
2959 percent drop. If 2.6 times the number of CDs sold were downloaded for
2960 free, and yet sales revenue dropped by just 6.7 percent, then there is
2961 a huge difference between <span class="quote">«<span class="quote">downloading a song and stealing a CD.</span>»</span>
2962 </p><a class="indexterm" name="idp7844048"></a><p>
2963 These are the harms&#8212;alleged and perhaps exaggerated but, let's
2964 assume, real. What of the benefits? File sharing may impose costs on
2965 the recording industry. What value does it produce in addition to
2966 these costs?
2967 </p><p>
2968 One benefit is type C sharing&#8212;making available content that
2969 is technically still under copyright but is no longer commercially
2970 available.  This is not a small category of content. There are
2971 millions of tracks that are no longer commercially
2972 available.<a href="#ftn.idp7845168" class="footnote" name="idp7845168"><sup class="footnote">[84]</sup></a>
2973 And while it's conceivable that some of this content is not available
2974 because the artist producing the content doesn't want it to be made
2975 available, the vast majority of it is unavailable solely because the
2976 publisher or the distributor has decided it no longer makes economic
2977 sense <span class="emphasis"><em>to the company</em></span> to make it available.
2978 </p><a class="indexterm" name="idp7848656"></a><p>
2979 In real space&#8212;long before the Internet&#8212;the market had a simple
2980
2981 response to this problem: used book and record stores. There are
2982 thousands of used book and used record stores in America
2983 today.<a href="#ftn.idp7850400" class="footnote" name="idp7850400"><sup class="footnote">[85]</sup></a>
2984 These stores buy content from owners, then sell the content they
2985 buy. And under American copyright law, when they buy and sell this
2986 content, <span class="emphasis"><em>even if the content is still under
2987 copyright</em></span>, the copyright owner doesn't get a dime. Used
2988 book and record stores are commercial entities; their owners make
2989 money from the content they sell; but as with cable companies before
2990 statutory licensing, they don't have to pay the copyright owner for
2991 the content they sell.
2992 </p><a class="indexterm" name="idp7855584"></a><a class="indexterm" name="idp7856592"></a><a class="indexterm" name="idxinternetbookson"></a><p>
2993 Type C sharing, then, is very much like used book stores or used
2994 record stores. It is different, of course, because the person making
2995 the content available isn't making money from making the content
2996 available.  It is also different, of course, because in real space,
2997 when I sell a record, I don't have it anymore, while in cyberspace,
2998 when someone shares my 1949 recording of Bernstein's <span class="quote">«<span class="quote">Two Love Songs,</span>»</span>
2999 I still have it. That difference would matter economically if the
3000 owner of the copyright were selling the record in competition to my
3001 sharing. But we're talking about the class of content that is not
3002 currently commercially available. The Internet is making it available,
3003 through cooperative sharing, without competing with the market.
3004 </p><p>
3005 It may well be, all things considered, that it would be better if the
3006 copyright owner got something from this trade. But just because it may
3007 well be better, it doesn't follow that it would be good to ban used book
3008 stores. Or put differently, if you think that type C sharing should be
3009 stopped, do you think that libraries and used book stores should be
3010 shut as well?
3011 </p><a class="indexterm" name="idxbooksfreeonline1"></a><a class="indexterm" name="idp7863008"></a><a class="indexterm" name="idp7863760"></a><p>
3012 Finally, and perhaps most importantly, file-sharing networks enable
3013 type D sharing to occur&#8212;the sharing of content that copyright owners
3014 want to have shared or for which there is no continuing copyright. This
3015 sharing clearly benefits authors and society. Science fiction author
3016 Cory Doctorow, for example, released his first novel, <em class="citetitle">Down and Out in
3017 the Magic Kingdom</em>, both free on-line and in bookstores on the same
3018
3019
3020 day. His (and his publisher's) thinking was that the on-line distribution
3021 would be a great advertisement for the <span class="quote">«<span class="quote">real</span>»</span> book. People would read
3022 part on-line, and then decide whether they liked the book or not. If
3023 they liked it, they would be more likely to buy it. Doctorow's content is
3024 type D content. If sharing networks enable his work to be spread, then
3025 both he and society are better off. (Actually, much better off: It is a
3026 great book!)
3027 </p><a class="indexterm" name="idp7866848"></a><p>
3028 Likewise for work in the public domain: This sharing benefits society
3029 with no legal harm to authors at all. If efforts to solve the problem
3030 of type A sharing destroy the opportunity for type D sharing, then we
3031 lose something important in order to protect type A content.
3032 </p><p>
3033 The point throughout is this: While the recording industry
3034 understandably says, <span class="quote">«<span class="quote">This is how much we've lost,</span>»</span> we must also ask,
3035 <span class="quote">«<span class="quote">How much has society gained from p2p sharing? What are the
3036 efficiencies?  What is the content that otherwise would be
3037 unavailable?</span>»</span>
3038 </p><a class="indexterm" name="idp7869776"></a><p>
3039 For unlike the piracy I described in the first section of this
3040 chapter, much of the <span class="quote">«<span class="quote">piracy</span>»</span> that file sharing enables is plainly
3041 legal and good.  And like the piracy I described in chapter
3042 <a class="xref" href="#pirates" title="Chapter 4. Chapter Four: «Pirates»">4</a>, much of
3043 this piracy is motivated by a new way of spreading content caused by
3044 changes in the technology of distribution. Thus, consistent with the
3045 tradition that gave us Hollywood, radio, the recording industry, and
3046 cable TV, the question we should be asking about file sharing is how
3047 best to preserve its benefits while minimizing (to the extent
3048 possible) the wrongful harm it causes artists. The question is one of
3049 balance. The law should seek that balance, and that balance will be
3050 found only with time.
3051 </p><p>
3052 <span class="quote">«<span class="quote">But isn't the war just a war against illegal sharing? Isn't the target
3053 just what you call type A sharing?</span>»</span>
3054 </p><p>
3055 You would think. And we should hope. But so far, it is not. The effect
3056 of the war purportedly on type A sharing alone has been felt far
3057 beyond that one class of sharing. That much is obvious from the
3058 Napster case itself. When Napster told the district court that it had
3059 developed a technology to block the transfer of 99.4 percent of
3060 identified
3061
3062
3063 infringing material, the district court told counsel for Napster 99.4
3064 percent was not good enough. Napster had to push the infringements
3065 <span class="quote">«<span class="quote">down to zero.</span>»</span><a href="#ftn.idp7875520" class="footnote" name="idp7875520"><sup class="footnote">[86]</sup></a>
3066 </p><p>
3067 If 99.4 percent is not good enough, then this is a war on file-sharing
3068 technologies, not a war on copyright infringement. There is no way to
3069 assure that a p2p system is used 100 percent of the time in compliance
3070 with the law, any more than there is a way to assure that 100 percent of
3071 VCRs or 100 percent of Xerox machines or 100 percent of handguns
3072 are used in compliance with the law. Zero tolerance means zero p2p.
3073 The court's ruling means that we as a society must lose the benefits of
3074 p2p, even for the totally legal and beneficial uses they serve, simply to
3075 assure that there are zero copyright infringements caused by p2p.
3076 </p><p>
3077 Zero tolerance has not been our history. It has not produced the
3078 content industry that we know today. The history of American law has
3079 been a process of balance. As new technologies changed the way content
3080 was distributed, the law adjusted, after some time, to the new
3081 technology.  In this adjustment, the law sought to ensure the
3082 legitimate rights of creators while protecting innovation. Sometimes
3083 this has meant more rights for creators. Sometimes less.
3084 </p><a class="indexterm" name="idp7879664"></a><a class="indexterm" name="idp7880672"></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="idp7887376"></a><a class="indexterm" name="idp7888384"></a><a class="indexterm" name="idp7889392"></a><a class="indexterm" name="idp7890400"></a><a class="indexterm" name="idp7891408"></a><a class="indexterm" name="idp7892160"></a><p>
3085 So, as we've seen, when <span class="quote">«<span class="quote">mechanical reproduction</span>»</span> threatened the
3086 interests of composers, Congress balanced the rights of composers
3087 against the interests of the recording industry. It granted rights to
3088 composers, but also to the recording artists: Composers were to be
3089 paid, but at a price set by Congress. But when radio started
3090 broadcasting the recordings made by these recording artists, and they
3091 complained to Congress that their <span class="quote">«<span class="quote">creative property</span>»</span> was not being
3092 respected (since the radio station did not have to pay them for the
3093 creativity it broadcast), Congress rejected their claim. An indirect
3094 benefit was enough.
3095 </p><a class="indexterm" name="idxcabletv2"></a><p>
3096 Cable TV followed the pattern of record albums. When the courts
3097 rejected the claim that cable broadcasters had to pay for the content
3098 they rebroadcast, Congress responded by giving broadcasters a right to
3099 compensation, but at a level set by the law. It likewise gave cable
3100 companies the right to the content, so long as they paid the statutory
3101 price.
3102 </p><a class="indexterm" name="idp7896640"></a><p>
3103
3104
3105 This compromise, like the compromise affecting records and player
3106 pianos, served two important goals&#8212;indeed, the two central goals
3107 of any copyright legislation. First, the law assured that new
3108 innovators would have the freedom to develop new ways to deliver
3109 content.  Second, the law assured that copyright holders would be paid
3110 for the content that was distributed. One fear was that if Congress
3111 simply required cable TV to pay copyright holders whatever they
3112 demanded for their content, then copyright holders associated with
3113 broadcasters would use their power to stifle this new technology,
3114 cable. But if Congress had permitted cable to use broadcasters'
3115 content for free, then it would have unfairly subsidized cable. Thus
3116 Congress chose a path that would assure
3117 <span class="emphasis"><em>compensation</em></span> without giving the past
3118 (broadcasters) control over the future (cable).
3119 </p><a class="indexterm" name="idp7899632"></a><a class="indexterm" name="idp7900496"></a><a class="indexterm" name="idp7901472"></a><a class="indexterm" name="idxbetamax"></a><a class="indexterm" name="idxcassettevcrs1"></a><p>
3120 In the same year that Congress struck this balance, two major
3121 producers and distributors of film content filed a lawsuit against
3122 another technology, the video tape recorder (VTR, or as we refer to
3123 them today, VCRs) that Sony had produced, the Betamax. Disney's and
3124 Universal's claim against Sony was relatively simple: Sony produced a
3125 device, Disney and Universal claimed, that enabled consumers to engage
3126 in copyright infringement. Because the device that Sony built had a
3127 <span class="quote">«<span class="quote">record</span>»</span> button, the device could be used to record copyrighted movies
3128 and shows. Sony was therefore benefiting from the copyright
3129 infringement of its customers. It should therefore, Disney and
3130 Universal claimed, be partially liable for that infringement.
3131 </p><a class="indexterm" name="idp7906800"></a><p>
3132 There was something to Disney's and Universal's claim. Sony did
3133 decide to design its machine to make it very simple to record television
3134 shows. It could have built the machine to block or inhibit any direct
3135 copying from a television broadcast. Or possibly, it could have built the
3136 machine to copy only if there were a special <span class="quote">«<span class="quote">copy me</span>»</span> signal on the
3137 line. It was clear that there were many television shows that did not
3138 grant anyone permission to copy. Indeed, if anyone had asked, no
3139 doubt the majority of shows would not have authorized copying. And
3140
3141 in the face of this obvious preference, Sony could have designed its
3142 system to minimize the opportunity for copyright infringement. It did
3143 not, and for that, Disney and Universal wanted to hold it responsible
3144 for the architecture it chose.
3145 </p><a class="indexterm" name="idxcongressusoncopyrightlaws3"></a><a class="indexterm" name="idp7911120"></a><p>
3146 MPAA president Jack Valenti became the studios' most vocal
3147 champion. Valenti called VCRs <span class="quote">«<span class="quote">tapeworms.</span>»</span> He warned, <span class="quote">«<span class="quote">When there are
3148 20, 30, 40 million of these VCRs in the land, we will be invaded by
3149 millions of `tapeworms,' eating away at the very heart and essence of
3150 the most precious asset the copyright owner has, his
3151 copyright.</span>»</span><a href="#ftn.idp7913376" class="footnote" name="idp7913376"><sup class="footnote">[87]</sup></a>
3152 <span class="quote">«<span class="quote">One does not have to be trained in sophisticated marketing and
3153 creative judgment,</span>»</span> he told Congress, <span class="quote">«<span class="quote">to understand the devastation
3154 on the after-theater marketplace caused by the hundreds of millions of
3155 tapings that will adversely impact on the future of the creative
3156 community in this country. It is simply a question of basic economics
3157 and plain common sense.</span>»</span><a href="#ftn.idp7915408" class="footnote" name="idp7915408"><sup class="footnote">[88]</sup></a>
3158 Indeed, as surveys would later show, 45
3159 percent of VCR owners had movie libraries of ten videos or more<a href="#ftn.idp7916384" class="footnote" name="idp7916384"><sup class="footnote">[89]</sup></a>
3160 &#8212; a use the Court would later hold was not <span class="quote">«<span class="quote">fair.</span>»</span> By
3161 <span class="quote">«<span class="quote">allowing VCR owners to copy freely by the means of an exemption from
3162 copyright infringement without creating a mechanism to compensate
3163 copyright owners,</span>»</span> Valenti testified, Congress would <span class="quote">«<span class="quote">take from the
3164 owners the very essence of their property: the exclusive right to
3165 control who may use their work, that is, who may copy it and thereby
3166 profit from its reproduction.</span>»</span><a href="#ftn.idp7919312" class="footnote" name="idp7919312"><sup class="footnote">[90]</sup></a>
3167 </p><a class="indexterm" name="idp7920304"></a><p>
3168 It took eight years for this case to be resolved by the Supreme
3169 Court. In the interim, the Ninth Circuit Court of Appeals, which
3170 includes Hollywood in its jurisdiction&#8212;leading Judge Alex
3171 Kozinski, who sits on that court, refers to it as the <span class="quote">«<span class="quote">Hollywood
3172 Circuit</span>»</span>&#8212;held that Sony would be liable for the copyright
3173 infringement made possible by its machines. Under the Ninth Circuit's
3174 rule, this totally familiar technology&#8212;which Jack Valenti had
3175 called <span class="quote">«<span class="quote">the Boston Strangler of the American film industry</span>»</span> (worse
3176 yet, it was a <span class="emphasis"><em>Japanese</em></span> Boston Strangler of the
3177 American film industry)&#8212;was an illegal
3178 technology.<a href="#ftn.idp7922416" class="footnote" name="idp7922416"><sup class="footnote">[91]</sup></a>
3179 <a class="indexterm" name="idp7924896"></a>
3180 </p><p>
3181 But the Supreme Court reversed the decision of the Ninth Circuit.
3182
3183
3184 And in its reversal, the Court clearly articulated its understanding of
3185 when and whether courts should intervene in such disputes. As the
3186 Court wrote,
3187 </p><div class="blockquote"><blockquote class="blockquote"><p>
3188 Sound policy, as well as history, supports our consistent deference
3189 to Congress when major technological innovations alter the
3190                 market
3191 for copyrighted materials. Congress has the constitutional
3192                 authority
3193 and the institutional ability to accommodate fully the
3194 varied permutations of competing interests that are inevitably
3195                 implicated
3196 by such new technology.<a href="#ftn.idp7927568" class="footnote" name="idp7927568"><sup class="footnote">[92]</sup></a>
3197 </p></blockquote></div><a class="indexterm" name="idp7929360"></a><p>
3198 Congress was asked to respond to the Supreme Court's decision.  But as
3199 with the plea of recording artists about radio broadcasts, Congress
3200 ignored the request. Congress was convinced that American film got
3201 enough, this <span class="quote">«<span class="quote">taking</span>»</span> notwithstanding.  If we put these cases
3202 together, a pattern is clear:
3203 </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="idp7943536"></a><p>
3204 In each case throughout our history, a new technology changed the
3205 way content was distributed.<a href="#ftn.idp7944880" class="footnote" name="idp7944880"><sup class="footnote">[93]</sup></a>
3206 In each case, throughout our history,
3207 that change meant that someone got a <span class="quote">«<span class="quote">free ride</span>»</span> on someone else's
3208 work.
3209 </p><p>
3210 In <span class="emphasis"><em>none</em></span> of these cases did either the courts or
3211 Congress eliminate all free riding. In <span class="emphasis"><em>none</em></span> of
3212 these cases did the courts or Congress insist that the law should
3213 assure that the copyright holder get all the value that his copyright
3214 created. In every case, the copyright owners complained of <span class="quote">«<span class="quote">piracy.</span>»</span>
3215 In every case, Congress acted to recognize some of the legitimacy in
3216 the behavior of the <span class="quote">«<span class="quote">pirates.</span>»</span> In each case, Congress allowed some new
3217 technology to benefit from content made before. It balanced the
3218 interests at stake.
3219
3220 </p><a class="indexterm" name="idp7952816"></a><p>
3221 When you think across these examples, and the other examples that
3222 make up the first four chapters of this section, this balance makes
3223 sense. Was Walt Disney a pirate? Would doujinshi be better if creators
3224 had to ask permission? Should tools that enable others to capture and
3225 spread images as a way to cultivate or criticize our culture be better
3226                 regulated?
3227 Is it really right that building a search engine should expose you
3228 to $15 million in damages? Would it have been better if Edison had
3229 controlled film? Should every cover band have to hire a lawyer to get
3230 permission to record a song?
3231 </p><a class="indexterm" name="idp7954560"></a><p>
3232 We could answer yes to each of these questions, but our tradition
3233 has answered no. In our tradition, as the Supreme Court has stated,
3234 copyright <span class="quote">«<span class="quote">has never accorded the copyright owner complete control
3235 over all possible uses of his work.</span>»</span><a href="#ftn.idp7956352" class="footnote" name="idp7956352"><sup class="footnote">[94]</sup></a>
3236 Instead, the particular uses that the law regulates have been defined
3237 by balancing the good that comes from granting an exclusive right
3238 against the burdens such an exclusive right creates. And this
3239 balancing has historically been done <span class="emphasis"><em>after</em></span> a
3240 technology has matured, or settled into the mix of technologies that
3241 facilitate the distribution of content.
3242 </p><p>
3243 We should be doing the same thing today. The technology of the
3244 Internet is changing quickly. The way people connect to the Internet
3245 (wires vs. wireless) is changing very quickly. No doubt the network
3246 should not become a tool for <span class="quote">«<span class="quote">stealing</span>»</span> from artists. But neither
3247 should the law become a tool to entrench one particular way in which
3248 artists (or more accurately, distributors) get paid. As I describe in
3249 some detail in the last chapter of this book, we should be securing
3250 income to artists while we allow the market to secure the most
3251 efficient way to promote and distribute content. This will require
3252 changes in the law, at least in the interim. These changes should be
3253 designed to balance the protection of the law against the strong
3254 public interest that innovation continue.
3255 </p><p>
3256
3257
3258 This is especially true when a new technology enables a vastly
3259 superior mode of distribution. And this p2p has done. P2p technologies
3260 can be ideally efficient in moving content across a widely diverse
3261 network.  Left to develop, they could make the network vastly more
3262 efficient.  Yet these <span class="quote">«<span class="quote">potential public benefits,</span>»</span> as John Schwartz
3263 writes in <em class="citetitle">The New York Times</em>, <span class="quote">«<span class="quote">could be delayed in the P2P
3264 fight.</span>»</span><a href="#ftn.idp7962192" class="footnote" name="idp7962192"><sup class="footnote">[95]</sup></a>
3265 </p><p>
3266 <span class="strong"><strong>Yet when anyone</strong></span> begins to talk
3267 about <span class="quote">«<span class="quote">balance,</span>»</span> the copyright warriors raise a different
3268 argument. <span class="quote">«<span class="quote">All this hand waving about balance and
3269 incentives,</span>»</span> they say, <span class="quote">«<span class="quote">misses a fundamental point. Our
3270 content,</span>»</span> the warriors insist, <span class="quote">«<span class="quote">is our
3271 <span class="emphasis"><em>property</em></span>. Why should we wait for Congress to
3272 `rebalance' our property rights? Do you have to wait before calling
3273 the police when your car has been stolen? And why should Congress
3274 deliberate at all about the merits of this theft? Do we ask whether
3275 the car thief had a good use for the car before we arrest him?</span>»</span>
3276 </p><p>
3277 <span class="quote">«<span class="quote">It is <span class="emphasis"><em>our property</em></span>,</span>»</span> the warriors
3278 insist. <span class="quote">«<span class="quote">And it should be protected just as any other property
3279 is protected.</span>»</span>
3280 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7711360" class="footnote"><p><a href="#idp7711360" class="para"><sup class="para">[70] </sup></a>
3281
3282 See IFPI (International Federation of the Phonographic Industry), <em class="citetitle">The
3283 Recording Industry Commercial Piracy Report 2003</em>, July 2003, available
3284 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #14</a>. See
3285 also Ben Hunt, <span class="quote">«<span class="quote">Companies Warned on Music Piracy Risk,</span>»</span> <em class="citetitle">Financial
3286 Times</em>, 14 February 2003, 11.
3287 </p></div><div id="ftn.idp7739472" class="footnote"><p><a href="#idp7739472" class="para"><sup class="para">[71] </sup></a>
3288
3289 See Peter Drahos with John Braithwaite, Information Feudalism:
3290 <em class="citetitle">Who Owns the Knowledge Economy?</em> (New York: The
3291 New Press, 2003), 10&#8211;13, 209.  The Trade-Related Aspects of
3292 Intellectual Property Rights (TRIPS) agreement obligates member
3293 nations to create administrative and enforcement mechanisms for
3294 intellectual property rights, a costly proposition for developing
3295 countries. Additionally, patent rights may lead to higher prices for
3296 staple industries such as agriculture. Critics of TRIPS question the
3297 disparity between burdens imposed upon developing countries and
3298 benefits conferred to industrialized nations. TRIPS does permit
3299 governments to use patents for public, noncommercial uses without
3300 first obtaining the patent holder's permission. Developing nations may
3301 be able to use this to gain the benefits of foreign patents at lower
3302 prices. This is a promising strategy for developing nations within the
3303 TRIPS framework.
3304 <a class="indexterm" name="idp7642160"></a>
3305 <a class="indexterm" name="idp7743008"></a>
3306 </p></div><div id="ftn.idp7745568" class="footnote"><p><a href="#idp7745568" class="para"><sup class="para">[72] </sup></a>
3307
3308 For an analysis of the economic impact of copying technology, see Stan
3309 Liebowitz, <em class="citetitle">Rethinking the Network Economy</em> (New York: Amacom, 2002),
3310 144&#8211;90. <span class="quote">«<span class="quote">In some instances &#8230; the impact of piracy on the
3311 copyright holder's ability to appropriate the value of the work will
3312 be negligible. One obvious instance is the case where the individual
3313 engaging in pirating would not have purchased an original even if
3314 pirating were not an option.</span>»</span> Ibid., 149.
3315 <a class="indexterm" name="idp7747376"></a>
3316 </p></div><div id="ftn.idp7777152" class="footnote"><p><a href="#idp7777152" class="para"><sup class="para">[73] </sup></a>
3317
3318 <em class="citetitle">Bach</em> v. <em class="citetitle">Longman</em>, 98 Eng. Rep. 1274 (1777).
3319 </p></div><div id="ftn.idp7782544" class="footnote"><p><a href="#idp7782544" class="para"><sup class="para">[74] </sup></a>
3320
3321 <a class="indexterm" name="idp7783184"></a>
3322 See Clayton M. Christensen, <em class="citetitle">The Innovator's Dilemma: The Revolutionary
3323 National Bestseller That Changed the Way We Do Business</em> (New York:
3324 HarperBusiness, 2000). Professor Christensen examines why companies
3325 that give rise to and dominate a product area are frequently unable to
3326 come up with the most creative, paradigm-shifting uses for their own
3327 products.  This job usually falls to outside innovators, who
3328 reassemble existing technology in inventive ways. For a discussion of
3329 Christensen's ideas, see Lawrence Lessig, <em class="citetitle">Future</em>, 89&#8211;92, 139.
3330
3331 <a class="indexterm" name="idp7746688"></a>
3332 </p></div><div id="ftn.idp7789600" class="footnote"><p><a href="#idp7789600" class="para"><sup class="para">[75] </sup></a>
3333
3334 See Carolyn Lochhead, <span class="quote">«<span class="quote">Silicon Valley Dream, Hollywood Nightmare,</span>»</span> <em class="citetitle">San
3335 Francisco Chronicle</em>, 24 September 2002, A1; <span class="quote">«<span class="quote">Rock 'n' Roll Suicide,</span>»</span>
3336 <em class="citetitle">New Scientist</em>, 6 July 2002, 42; Benny Evangelista, <span class="quote">«<span class="quote">Napster Names CEO,
3337 Secures New Financing,</span>»</span> <em class="citetitle">San Francisco Chronicle</em>, 23 May 2003, C1;
3338 <span class="quote">«<span class="quote">Napster's Wake-Up Call,</span>»</span> <em class="citetitle">Economist</em>, 24 June 2000, 23; John Naughton,
3339 <span class="quote">«<span class="quote">Hollywood at War with the Internet</span>»</span> (London) <em class="citetitle">Times</em>, 26 July 2002, 18.
3340 </p></div><div id="ftn.idp7794640" class="footnote"><p><a href="#idp7794640" class="para"><sup class="para">[76] </sup></a>
3341
3342
3343 See Ipsos-Insight, <em class="citetitle">TEMPO: Keeping Pace with Online Music Distribution</em>
3344 (September 2002), reporting that 28 percent of Americans aged twelve
3345 and older have downloaded music off of the Internet and 30 percent have
3346 listened to digital music files stored on their computers.
3347 </p></div><div id="ftn.idp7798320" class="footnote"><p><a href="#idp7798320" class="para"><sup class="para">[77] </sup></a>
3348
3349 Amy Harmon, <span class="quote">«<span class="quote">Industry Offers a Carrot in Online Music Fight,</span>»</span> <em class="citetitle">New
3350 York Times</em>, 6 June 2003, A1.
3351 </p></div><div id="ftn.idp7810784" class="footnote"><p><a href="#idp7810784" class="para"><sup class="para">[78] </sup></a>
3352
3353 See Liebowitz, <em class="citetitle">Rethinking the Network Economy</em>, 148&#8211;49.
3354 <a class="indexterm" name="idp7785232"></a>
3355 </p></div><div id="ftn.idp7817264" class="footnote"><p><a href="#idp7817264" class="para"><sup class="para">[79] </sup></a>
3356
3357 <a class="indexterm" name="idp7817904"></a>
3358 See Cap Gemini Ernst &amp; Young, <em class="citetitle">Technology Evolution and the
3359 Music Industry's Business Model Crisis</em> (2003), 3. This report
3360 describes the music industry's effort to stigmatize the budding
3361 practice of cassette taping in the 1970s, including an advertising
3362 campaign featuring a cassette-shape skull and the caption <span class="quote">«<span class="quote">Home taping
3363 is killing music.</span>»</span>  At the time digital audio tape became a threat,
3364 the Office of Technical Assessment conducted a survey of consumer
3365 behavior. In 1988, 40 percent of consumers older than ten had taped
3366 music to a cassette format. U.S.  Congress, Office of Technology
3367 Assessment, <em class="citetitle">Copyright and Home Copying: Technology Challenges the Law</em>,
3368 OTA-CIT-422 (Washington, D.C.: U.S.  Government Printing Office,
3369 October 1989), 145&#8211;56.  </p></div><div id="ftn.idp7746944" class="footnote"><p><a href="#idp7746944" class="para"><sup class="para">[80] </sup></a>
3370
3371 U.S. Congress, <em class="citetitle">Copyright and Home Copying</em>, 4.
3372 </p></div><div id="ftn.idp7831088" class="footnote"><p><a href="#idp7831088" class="para"><sup class="para">[81] </sup></a>
3373
3374 See Recording Industry Association of America, <em class="citetitle">2002 Yearend Statistics</em>,
3375 available at
3376 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #15</a>. A later
3377 report indicates even greater losses. See Recording Industry
3378 Association of America, <em class="citetitle">Some Facts About Music Piracy</em>, 25 June 2003,
3379 available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
3380 #16</a>: <span class="quote">«<span class="quote">In the past four years, unit shipments of recorded music
3381 have fallen by 26 percent from 1.16 billion units in to 860 million
3382 units in 2002 in the United States (based on units shipped).  In terms
3383 of sales, revenues are down 14 percent, from $14.6 billion in to $12.6
3384 billion last year (based on U.S. dollar value of shipments). The music
3385 industry worldwide has gone from a $39 billion industry in 2000 down
3386 to a $32 billion industry in 2002 (based on U.S. dollar value of
3387 shipments).</span>»</span>
3388 </p></div><div id="ftn.idp7835616" class="footnote"><p><a href="#idp7835616" class="para"><sup class="para">[82] </sup></a>
3389 Jane Black, <span class="quote">«<span class="quote">Big Music's Broken Record,</span>»</span> BusinessWeek online, 13
3390 February 2003, available at
3391 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #17</a>.
3392 <a class="indexterm" name="idp7837392"></a>
3393 </p></div><div id="ftn.idp7839632" class="footnote"><p><a href="#idp7839632" class="para"><sup class="para">[83] </sup></a>
3394
3395 Ibid.
3396 </p></div><div id="ftn.idp7845168" class="footnote"><p><a href="#idp7845168" class="para"><sup class="para">[84] </sup></a>
3397
3398 By one estimate, 75 percent of the music released by the major labels
3399 is no longer in print. See Online Entertainment and Copyright
3400 Law&#8212;Coming Soon to a Digital Device Near You: Hearing Before the
3401 Senate Committee on the Judiciary, 107th Cong., 1st sess. (3 April
3402 2001) (prepared statement of the Future of Music Coalition), available
3403 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #18</a>.
3404 </p></div><div id="ftn.idp7850400" class="footnote"><p><a href="#idp7850400" class="para"><sup class="para">[85] </sup></a>
3405
3406 <a class="indexterm" name="idp7851040"></a>
3407 While there are not good estimates of the number of used record stores
3408 in existence, in 2002, there were 7,198 used book dealers in the
3409 United States, an increase of 20 percent since 1993. See Book Hunter
3410 Press, <em class="citetitle">The Quiet Revolution: The Expansion of the Used Book
3411 Market</em> (2002), available at
3412 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #19</a>. Used
3413 records accounted for $260 million in sales in 2002. See National
3414 Association of Recording Merchandisers, <span class="quote">«<span class="quote">2002 Annual Survey
3415 Results,</span>»</span> available at
3416 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #20</a>.
3417 </p></div><div id="ftn.idp7875520" class="footnote"><p><a href="#idp7875520" class="para"><sup class="para">[86] </sup></a>
3418
3419 See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34-
3420 35 (N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183
3421 MHP, available at
3422
3423 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #21</a>. For an
3424 account of the litigation and its toll on Napster, see Joseph Menn,
3425 <em class="citetitle">All the Rave: The Rise and Fall of Shawn Fanning's Napster</em> (New
3426 York: Crown Business, 2003), 269&#8211;82.
3427 </p></div><div id="ftn.idp7913376" class="footnote"><p><a href="#idp7913376" class="para"><sup class="para">[87] </sup></a>
3428
3429 Copyright Infringements (Audio and Video Recorders): Hearing on
3430 S. 1758 Before the Senate Committee on the Judiciary, 97th Cong., 1st
3431 and 2nd sess., 459 (1982) (testimony of Jack Valenti, president, Motion
3432 Picture Association of America, Inc.).
3433 </p></div><div id="ftn.idp7915408" class="footnote"><p><a href="#idp7915408" class="para"><sup class="para">[88] </sup></a>
3434
3435 Copyright Infringements (Audio and Video Recorders), 475.
3436 </p></div><div id="ftn.idp7916384" class="footnote"><p><a href="#idp7916384" class="para"><sup class="para">[89] </sup></a>
3437
3438 <em class="citetitle">Universal City Studios, Inc</em>. v. <em class="citetitle">Sony Corp. of America</em>, 480 F. Supp. 429,
3439 (C.D. Cal., 1979).
3440 </p></div><div id="ftn.idp7919312" class="footnote"><p><a href="#idp7919312" class="para"><sup class="para">[90] </sup></a>
3441
3442 Copyright Infringements (Audio and Video Recorders), 485 (testimony
3443 of Jack Valenti).
3444 </p></div><div id="ftn.idp7922416" class="footnote"><p><a href="#idp7922416" class="para"><sup class="para">[91] </sup></a>
3445
3446 <em class="citetitle">Universal City Studios, Inc</em>. v. <em class="citetitle">Sony Corp. of America</em>, 659 F. 2d 963 (9th Cir.
3447 1981).
3448 </p></div><div id="ftn.idp7927568" class="footnote"><p><a href="#idp7927568" class="para"><sup class="para">[92] </sup></a>
3449
3450 <em class="citetitle">Sony Corp. of America</em> v. <em class="citetitle">Universal City Studios, Inc</em>., 464 U.S. 417, 431 (1984).
3451 </p></div><div id="ftn.idp7944880" class="footnote"><p><a href="#idp7944880" class="para"><sup class="para">[93] </sup></a>
3452
3453 These are the most important instances in our history, but there are other
3454 cases as well. The technology of digital audio tape (DAT), for example,
3455 was regulated by Congress to minimize the risk of piracy. The remedy
3456 Congress imposed did burden DAT producers, by taxing tape sales and
3457 controlling the technology of DAT. See Audio Home Recording Act of
3458 1992 (Title 17 of the <em class="citetitle">United States Code</em>), Pub. L. No. 102-563, 106 Stat.
3459 4237, codified at 17 U.S.C. §1001. Again, however, this regulation did not
3460 eliminate the opportunity for free riding in the sense I've described. See
3461 Lessig, <em class="citetitle">Future</em>, 71. See also Picker, <span class="quote">«<span class="quote">From Edison to the Broadcast Flag,</span>»</span>
3462 <em class="citetitle">University of Chicago Law Review</em> 70 (2003): 293&#8211;96.
3463 <a class="indexterm" name="idp7877520"></a>
3464 <a class="indexterm" name="idp7948592"></a>
3465 </p></div><div id="ftn.idp7956352" class="footnote"><p><a href="#idp7956352" class="para"><sup class="para">[94] </sup></a>
3466
3467 <em class="citetitle">Sony Corp. of America</em> v. <em class="citetitle">Universal City Studios, Inc</em>., 464 U.S. 417,
3468 (1984).
3469 </p></div><div id="ftn.idp7962192" class="footnote"><p><a href="#idp7962192" class="para"><sup class="para">[95] </sup></a>
3470
3471 John Schwartz, <span class="quote">«<span class="quote">New Economy: The Attack on Peer-to-Peer Software
3472 Echoes Past Efforts,</span>»</span> <em class="citetitle">New York Times</em>, 22 September 2003, C3.
3473 </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>
3474
3475
3476 <span class="strong"><strong>The copyright warriors</strong></span> are right: A
3477 copyright is a kind of property. It can be owned and sold, and the law
3478 protects against its theft. Ordinarily, the copyright owner gets to
3479 hold out for any price he wants. Markets reckon the supply and demand
3480 that partially determine the price she can get.
3481 </p><p>
3482 But in ordinary language, to call a copyright a <span class="quote">«<span class="quote">property</span>»</span> right is a
3483 bit misleading, for the property of copyright is an odd kind of
3484 property.  Indeed, the very idea of property in any idea or any
3485 expression is very odd. I understand what I am taking when I take the
3486 picnic table you put in your backyard. I am taking a thing, the picnic
3487 table, and after I take it, you don't have it. But what am I taking
3488 when I take the good <span class="emphasis"><em>idea</em></span> you had to put a picnic
3489 table in the backyard&#8212;by, for example, going to Sears, buying a
3490 table, and putting it in my backyard? What is the thing I am taking
3491 then?
3492 </p><a class="indexterm" name="idp7973968"></a><p>
3493 The point is not just about the thingness of picnic tables versus
3494 ideas, though that's an important difference. The point instead is that
3495
3496 in the ordinary case&#8212;indeed, in practically every case except for a
3497         narrow
3498 range of exceptions&#8212;ideas released to the world are free. I don't
3499 take anything from you when I copy the way you dress&#8212;though I
3500 might seem weird if I did it every day, and especially weird if you are a
3501 woman. Instead, as Thomas Jefferson said (and as is especially true
3502 when I copy the way someone else dresses), <span class="quote">«<span class="quote">He who receives an idea
3503 from me, receives instruction himself without lessening mine; as he who
3504 lights his taper at mine, receives light without darkening me.</span>»</span><a href="#ftn.idp7976240" class="footnote" name="idp7976240"><sup class="footnote">[96]</sup></a>
3505 </p><a class="indexterm" name="idp7977696"></a><p>
3506 The exceptions to free use are ideas and expressions within the
3507 reach of the law of patent and copyright, and a few other domains that
3508 I won't discuss here. Here the law says you can't take my idea or
3509                 expression
3510 without my permission: The law turns the intangible into
3511 property.
3512 </p><p>
3513 But how, and to what extent, and in what form&#8212;the details,
3514 in other words&#8212;matter. To get a good sense of how this practice
3515 of turning the intangible into property emerged, we need to place this
3516 <span class="quote">«<span class="quote">property</span>»</span> in its proper context.<a href="#ftn.idp7980240" class="footnote" name="idp7980240"><sup class="footnote">[97]</sup></a>
3517 </p><p>
3518 My strategy in doing this will be the same as my strategy in the
3519 preceding part. I offer four stories to help put the idea of
3520 <span class="quote">«<span class="quote">copyright material is property</span>»</span> in context. Where did the idea come
3521 from? What are its limits? How does it function in practice? After
3522 these stories, the significance of this true
3523 statement&#8212;<span class="quote">«<span class="quote">copyright material is property</span>»</span>&#8212; will be a bit
3524 more clear, and its implications will be revealed as quite different
3525 from the implications that the copyright warriors would have us draw.
3526 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp7976240" class="footnote"><p><a href="#idp7976240" class="para"><sup class="para">[96] </sup></a>
3527
3528 Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in
3529 <em class="citetitle">The Writings of Thomas Jefferson</em>, vol. 6 (Andrew A. Lipscomb and Albert
3530 Ellery Bergh, eds., 1903), 330, 333&#8211;34.
3531 </p></div><div id="ftn.idp7980240" class="footnote"><p><a href="#idp7980240" class="para"><sup class="para">[97] </sup></a>
3532
3533 As the legal realists taught American law, all property rights are
3534 intangible.  A property right is simply a right that an individual has
3535 against the world to do or not do certain things that may or may not
3536 attach to a physical object. The right itself is intangible, even if
3537 the object to which it is (metaphorically) attached is tangible. See
3538 Adam Mossoff, <span class="quote">«<span class="quote">What Is Property?  Putting the Pieces Back Together,</span>»</span>
3539 <em class="citetitle">Arizona Law Review</em> 45 (2003): 373, 429 n. 241.
3540 </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="idp7992624"></a><a class="indexterm" name="idp7993376"></a><a class="indexterm" name="idp7994128"></a><a class="indexterm" name="idxromeoandjulietshakespeare"></a><p>
3541 <span class="strong"><strong>William Shakespeare</strong></span> wrote
3542 <em class="citetitle">Romeo and Juliet</em> in 1595. The play was first
3543 published in 1597. It was the eleventh major play that Shakespeare had
3544 written. He would continue to write plays through 1613, and the plays
3545 that he wrote have continued to define Anglo-American culture ever
3546 since. So deeply have the works of a sixteenth-century writer seeped
3547 into our culture that we often don't even recognize their source.  I
3548 once overheard someone commenting on Kenneth Branagh's adaptation of
3549 Henry V: <span class="quote">«<span class="quote">I liked it, but Shakespeare is so full of
3550 clichés.</span>»</span>
3551 </p><a class="indexterm" name="idp7998464"></a><a class="indexterm" name="idxtonsonjacob"></a><p>
3552 In 1774, almost 180 years after <em class="citetitle">Romeo and Juliet</em> was written, the
3553 <span class="quote">«<span class="quote">copy-right</span>»</span> for the work was still thought by many to be the exclusive
3554 right of a single London publisher, Jacob Tonson.<a href="#ftn.idp8001600" class="footnote" name="idp8001600"><sup class="footnote">[98]</sup></a>
3555 Tonson was the most prominent of a small group of publishers called
3556 the Conger<a href="#ftn.idp8005904" class="footnote" name="idp8005904"><sup class="footnote">[99]</sup></a>
3557 who controlled bookselling in England during the eighteenth
3558 century. The Conger claimed a perpetual right to control the <span class="quote">«<span class="quote">copy</span>»</span> of
3559 books that they had acquired from authors. That perpetual right meant
3560 that no
3561
3562 one else could publish copies of a book to which they held the
3563 copyright.  Prices of the classics were thus kept high; competition to
3564 produce better or cheaper editions was eliminated.
3565 </p><a class="indexterm" name="idp8008352"></a><a class="indexterm" name="idxcopyrightdurationof2"></a><a class="indexterm" name="idp8010592"></a><a class="indexterm" name="idp8011600"></a><p>
3566 Now, there's something puzzling about the year 1774 to anyone who
3567 knows a little about copyright law. The better-known year in the
3568 history of copyright is 1710, the year that the British Parliament
3569 adopted the first <span class="quote">«<span class="quote">copyright</span>»</span> act. Known as the Statute of Anne, the
3570 act stated that all published works would get a copyright term of
3571 fourteen years, renewable once if the author was alive, and that all
3572 works already published by 1710 would get a single term of twenty-one
3573 additional years.<a href="#ftn.idp8013504" class="footnote" name="idp8013504"><sup class="footnote">[100]</sup></a> Under this law, <em class="citetitle">Romeo and Juliet</em> should have been
3574 free in 1731. So why was there any issue about it still being under
3575 Tonson's control in 1774?
3576 </p><a class="indexterm" name="idp8016512"></a><a class="indexterm" name="idp8017488"></a><a class="indexterm" name="idxlawcommonvspositive"></a><a class="indexterm" name="idp8019952"></a><a class="indexterm" name="idp8020704"></a><p>
3577 The reason is that the English hadn't yet agreed on what a <span class="quote">«<span class="quote">copyright</span>»</span>
3578 was&#8212;indeed, no one had. At the time the English passed the
3579 Statute of Anne, there was no other legislation governing copyrights.
3580 The last law regulating publishers, the Licensing Act of 1662, had
3581 expired in 1695. That law gave publishers a monopoly over publishing,
3582 as a way to make it easier for the Crown to control what was
3583 published.  But after it expired, there was no positive law that said
3584 that the publishers, or <span class="quote">«<span class="quote">Stationers,</span>»</span> had an exclusive right to print
3585 books.
3586 </p><a class="indexterm" name="idp8023136"></a><a class="indexterm" name="idp8024112"></a><p>
3587 There was no <span class="emphasis"><em>positive</em></span> law, but that didn't mean
3588 that there was no law. The Anglo-American legal tradition looks to
3589 both the words of legislatures and the words of judges to know the
3590 rules that are to govern how people are to behave. We call the words
3591 from legislatures <span class="quote">«<span class="quote">positive law.</span>»</span> We call the words from judges
3592 <span class="quote">«<span class="quote">common law.</span>»</span> The common law sets the background against which
3593 legislatures legislate; the legislature, ordinarily, can trump that
3594 background only if it passes a law to displace it. And so the real
3595 question after the licensing statutes had expired was whether the
3596 common law protected a copyright, independent of any positive law.
3597 </p><a class="indexterm" name="idp8027008"></a><a class="indexterm" name="idp8027984"></a><a class="indexterm" name="idxbritishparliament"></a><a class="indexterm" name="idp8029968"></a><a class="indexterm" name="idxstatuteofanne"></a><p>
3598 This question was important to the publishers, or <span class="quote">«<span class="quote">booksellers,</span>»</span> as
3599 they were called, because there was growing competition from foreign
3600 publishers. The Scottish, in particular, were increasingly publishing
3601 and exporting books to England. That competition reduced the profits
3602
3603
3604 of the Conger, which reacted by demanding that Parliament pass a law
3605 to again give them exclusive control over publishing. That demand
3606                 ultimately
3607 resulted in the Statute of Anne.
3608 </p><a class="indexterm" name="idxcopyrightasnarrowmonopolyright"></a><p>
3609 The Statute of Anne granted the author or <span class="quote">«<span class="quote">proprietor</span>»</span> of a book an
3610 exclusive right to print that book. In an important limitation,
3611 however, and to the horror of the booksellers, the law gave the
3612 bookseller that right for a limited term. At the end of that term, the
3613 copyright <span class="quote">«<span class="quote">expired,</span>»</span> and the work would then be free and could be
3614 published by anyone. Or so the legislature is thought to have
3615 believed.
3616 </p><a class="indexterm" name="idp8036400"></a><p>
3617 Now, the thing to puzzle about for a moment is this: Why would
3618 Parliament limit the exclusive right? Not why would they limit it to
3619 the particular limit they set, but why would they limit the right
3620 <span class="emphasis"><em>at all?</em></span>
3621 </p><a class="indexterm" name="idp8038352"></a><a class="indexterm" name="idp8039328"></a><a class="indexterm" name="idp8040080"></a><p>
3622 For the booksellers, and the authors whom they represented, had a very
3623 strong claim. Take <em class="citetitle">Romeo and Juliet</em> as an example: That play
3624 was written by Shakespeare. It was his genius that brought it into the
3625 world. He didn't take anybody's property when he created this play
3626 (that's a controversial claim, but never mind), and by his creating
3627 this play, he didn't make it any harder for others to craft a play. So
3628 why is it that the law would ever allow someone else to come along and
3629 take Shakespeare's play without his, or his estate's, permission? What
3630 reason is there to allow someone else to <span class="quote">«<span class="quote">steal</span>»</span> Shakespeare's work?
3631 </p><a class="indexterm" name="idp8042592"></a><p>
3632 The answer comes in two parts. We first need to see something special
3633 about the notion of <span class="quote">«<span class="quote">copyright</span>»</span> that existed at the time of the
3634 Statute of Anne. Second, we have to see something important about
3635 <span class="quote">«<span class="quote">booksellers.</span>»</span>
3636 </p><a class="indexterm" name="idp8044720"></a><p>
3637 First, about copyright. In the last three hundred years, we have come
3638 to apply the concept of <span class="quote">«<span class="quote">copyright</span>»</span> ever more broadly. But in 1710, it
3639 wasn't so much a concept as it was a very particular right. The
3640 copyright was born as a very specific set of restrictions: It forbade
3641 others from reprinting a book. In 1710, the <span class="quote">«<span class="quote">copy-right</span>»</span> was a right
3642 to use a particular machine to replicate a particular work. It did not
3643 go beyond that very narrow right. It did not control any more
3644 generally how
3645
3646 a work could be <span class="emphasis"><em>used</em></span>. Today the right includes a
3647 large collection of restrictions on the freedom of others: It grants
3648 the author the exclusive right to copy, the exclusive right to
3649 distribute, the exclusive right to perform, and so on.
3650 </p><a class="indexterm" name="idp8048272"></a><a class="indexterm" name="idp8049024"></a><p>
3651 So, for example, even if the copyright to Shakespeare's works were
3652 perpetual, all that would have meant under the original meaning of the
3653 term was that no one could reprint Shakespeare's work without the
3654 permission of the Shakespeare estate. It would not have controlled
3655 anything, for example, about how the work could be performed, whether
3656 the work could be translated, or whether Kenneth Branagh would be
3657 allowed to make his films. The <span class="quote">«<span class="quote">copy-right</span>»</span> was only an exclusive
3658 right to print&#8212;no less, of course, but also no more.
3659 </p><a class="indexterm" name="idp8051088"></a><a class="indexterm" name="idxmonopolycopyrightas"></a><a class="indexterm" name="idp8053072"></a><p>
3660 Even that limited right was viewed with skepticism by the British.
3661 They had had a long and ugly experience with <span class="quote">«<span class="quote">exclusive rights,</span>»</span>
3662 especially <span class="quote">«<span class="quote">exclusive rights</span>»</span> granted by the Crown. The English had
3663 fought a civil war in part about the Crown's practice of handing out
3664 monopolies&#8212;especially monopolies for works that already
3665 existed. King Henry VIII granted a patent to print the Bible and a
3666 monopoly to Darcy to print playing cards. The English Parliament began
3667 to fight back against this power of the Crown. In 1656, it passed the
3668 Statute of Monopolies, limiting monopolies to patents for new
3669 inventions. And by 1710, Parliament was eager to deal with the growing
3670 monopoly in publishing.
3671 </p><p>
3672 Thus the <span class="quote">«<span class="quote">copy-right,</span>»</span> when viewed as a monopoly right, was naturally
3673 viewed as a right that should be limited. (However convincing the
3674 claim that <span class="quote">«<span class="quote">it's my property, and I should have it forever,</span>»</span> try
3675 sounding convincing when uttering, <span class="quote">«<span class="quote">It's my monopoly, and I should
3676 have it forever.</span>»</span>) The state would protect the exclusive right, but
3677 only so long as it benefited society. The British saw the harms from
3678 specialinterest favors; they passed a law to stop them.
3679 </p><a class="indexterm" name="idp8057520"></a><a class="indexterm" name="idxbooksellersenglish"></a><a class="indexterm" name="idp8059504"></a><a class="indexterm" name="idxcopyrightdurationof3"></a><p>
3680 Second, about booksellers. It wasn't just that the copyright was a
3681 monopoly. It was also that it was a monopoly held by the booksellers.
3682 Booksellers sound quaint and harmless to us. They were not viewed
3683 as harmless in seventeenth-century England. Members of the Conger
3684
3685
3686 were increasingly seen as monopolists of the worst
3687 kind&#8212;tools of the Crown's repression, selling the liberty of
3688 England to guarantee themselves a monopoly profit. The attacks against
3689 these monopolists were harsh: Milton described them as <span class="quote">«<span class="quote">old patentees
3690 and monopolizers in the trade of book-selling</span>»</span>; they were <span class="quote">«<span class="quote">men who do
3691 not therefore labour in an honest profession to which learning is
3692 indetted.</span>»</span><a href="#ftn.idp8063616" class="footnote" name="idp8063616"><sup class="footnote">[101]</sup></a>
3693 </p><a class="indexterm" name="idp8064896"></a><a class="indexterm" name="idp8065648"></a><p>
3694 Many believed the power the booksellers exercised over the spread of
3695 knowledge was harming that spread, just at the time the Enlightenment
3696 was teaching the importance of education and knowledge spread
3697 generally. The idea that knowledge should be free was a hallmark of
3698 the time, and these powerful commercial interests were interfering
3699 with that idea.
3700 </p><a class="indexterm" name="idxbritishparliament2"></a><p>
3701 To balance this power, Parliament decided to increase competition
3702 among booksellers, and the simplest way to do that was to spread the
3703 wealth of valuable books. Parliament therefore limited the term of
3704 copyrights, and thereby guaranteed that valuable books would become
3705 open to any publisher to publish after a limited time. Thus the setting
3706 of the term for existing works to just twenty-one years was a
3707                 compromise
3708 to fight the power of the booksellers. The limitation on terms was
3709 an indirect way to assure competition among publishers, and thus the
3710 construction and spread of culture.
3711 </p><a class="indexterm" name="idxstatuteofanne2"></a><a class="indexterm" name="idxcopyrightinperpetuity"></a><p>
3712 When 1731 (1710 + 21) came along, however, the booksellers were
3713 getting anxious. They saw the consequences of more competition, and
3714 like every competitor, they didn't like them. At first booksellers simply
3715 ignored the Statute of Anne, continuing to insist on the perpetual right
3716 to control publication. But in 1735 and 1737, they tried to persuade
3717 Parliament to extend their terms. Twenty-one years was not enough,
3718 they said; they needed more time.
3719 </p><p>
3720 Parliament rejected their requests. As one pamphleteer put it, in
3721 words that echo today,
3722 </p><div class="blockquote"><blockquote class="blockquote"><p>
3723 I see no Reason for granting a further Term now, which will not
3724 hold as well for granting it again and again, as often as the Old
3725
3726 ones Expire; so that should this Bill pass, it will in Effect be
3727 establishing a perpetual Monopoly, a Thing deservedly odious in the
3728 Eye of the Law; it will be a great Cramp to Trade, a Discouragement to
3729 Learning, no Benefit to the Authors, but a general Tax on the Publick;
3730 and all this only to increase the private Gain of the
3731 Booksellers.<a href="#ftn.idp8074704" class="footnote" name="idp8074704"><sup class="footnote">[102]</sup></a>
3732 </p></blockquote></div><a class="indexterm" name="idp8076928"></a><a class="indexterm" name="idp8077904"></a><a class="indexterm" name="idp8078880"></a><a class="indexterm" name="idp8079632"></a><a class="indexterm" name="idp8080640"></a><p>
3733 Having failed in Parliament, the publishers turned to the courts in a
3734 series of cases. Their argument was simple and direct: The Statute of
3735 Anne gave authors certain protections through positive law, but those
3736 protections were not intended as replacements for the common law.
3737 Instead, they were intended simply to supplement the common law.
3738 Under common law, it was already wrong to take another person's
3739 creative <span class="quote">«<span class="quote">property</span>»</span> and use it without his permission. The Statute of
3740 Anne, the booksellers argued, didn't change that. Therefore, just
3741 because the protections of the Statute of Anne expired, that didn't
3742 mean the protections of the common law expired: Under the common law
3743 they had the right to ban the publication of a book, even if its
3744 Statute of Anne copyright had expired. This, they argued, was the only
3745 way to protect authors.
3746 </p><a class="indexterm" name="idp8083024"></a><p>
3747 This was a clever argument, and one that had the support of some of
3748 the leading jurists of the day. It also displayed extraordinary
3749 chutzpah.  Until then, as law professor Raymond Patterson has put it,
3750 <span class="quote">«<span class="quote">The publishers &#8230; had as much concern for authors as a cattle
3751 rancher has for cattle.</span>»</span><a href="#ftn.idp7822992" class="footnote" name="idp7822992"><sup class="footnote">[103]</sup></a>
3752 The bookseller didn't care squat for the rights of the author.  His
3753 concern was the monopoly profit that the author's work gave.
3754 </p><a class="indexterm" name="idxdonaldsonalexander"></a><a class="indexterm" name="idp8089472"></a><a class="indexterm" name="idxscottishpublishers"></a><p>
3755 The booksellers' argument was not accepted without a fight.
3756 The hero of this fight was a Scottish bookseller named Alexander
3757 Donaldson.<a href="#ftn.idp8091872" class="footnote" name="idp8091872"><sup class="footnote">[104]</sup></a>
3758 </p><a class="indexterm" name="idxstatuteofanne3"></a><a class="indexterm" name="idxconger"></a><a class="indexterm" name="idp8095616"></a><a class="indexterm" name="idp8096368"></a><p>
3759 Donaldson was an outsider to the London Conger. He began his
3760 career in Edinburgh in 1750. The focus of his business was inexpensive
3761 reprints <span class="quote">«<span class="quote">of standard works whose copyright term had expired,</span>»</span> at least
3762 under the Statute of Anne.<a href="#ftn.idp8097920" class="footnote" name="idp8097920"><sup class="footnote">[105]</sup></a>
3763 Donaldson's publishing house prospered
3764
3765 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
3766 them,</span>»</span> Professor Mark Rose writes, was <span class="quote">«<span class="quote">the young James Boswell
3767 who, together with his friend Andrew Erskine, published an anthology
3768 of contemporary Scottish poems with Donaldson.</span>»</span><a href="#ftn.idp8101264" class="footnote" name="idp8101264"><sup class="footnote">[106]</sup></a>
3769 </p><a class="indexterm" name="idxcommonlaw"></a><p>
3770 When the London booksellers tried to shut down Donaldson's shop in
3771 Scotland, he responded by moving his shop to London, where he sold
3772 inexpensive editions <span class="quote">«<span class="quote">of the most popular English books, in defiance
3773 of the supposed common law right of Literary
3774 Property.</span>»</span><a href="#ftn.idp8104192" class="footnote" name="idp8104192"><sup class="footnote">[107]</sup></a>
3775 His books undercut the Conger prices by 30 to 50 percent, and he
3776 rested his right to compete upon the ground that, under the Statute of
3777 Anne, the works he was selling had passed out of protection.
3778 </p><a class="indexterm" name="idp8106432"></a><a class="indexterm" name="idxmillarvtaylor"></a><p>
3779 The London booksellers quickly brought suit to block <span class="quote">«<span class="quote">piracy</span>»</span> like
3780 Donaldson's. A number of actions were successful against the <span class="quote">«<span class="quote">pirates,</span>»</span>
3781 the most important early victory being <em class="citetitle">Millar</em> v. <em class="citetitle">Taylor</em>.
3782 </p><a class="indexterm" name="idp8110640"></a><a class="indexterm" name="idp8111616"></a><a class="indexterm" name="idxthomsonjames"></a><a class="indexterm" name="idxcopyrightinperpetuity2"></a><a class="indexterm" name="idp8115312"></a><a class="indexterm" name="idp8116064"></a><p>
3783 Millar was a bookseller who in 1729 had purchased the rights to James
3784 Thomson's poem <span class="quote">«<span class="quote">The Seasons.</span>»</span> Millar complied with the requirements of
3785 the Statute of Anne, and therefore received the full protection of the
3786 statute. After the term of copyright ended, Robert Taylor began
3787 printing a competing volume. Millar sued, claiming a perpetual common
3788 law right, the Statute of Anne notwithstanding.<a href="#ftn.idp8117856" class="footnote" name="idp8117856"><sup class="footnote">[108]</sup></a>
3789 </p><a class="indexterm" name="idxmansfieldwilliammurraylord2"></a><p>
3790 Astonishingly to modern lawyers, one of the greatest judges in English
3791 history, Lord Mansfield, agreed with the booksellers. Whatever
3792 protection the Statute of Anne gave booksellers, it did not, he held,
3793 extinguish any common law right. The question was whether the common
3794 law would protect the author against subsequent <span class="quote">«<span class="quote">pirates.</span>»</span>
3795 Mansfield's answer was yes: The common law would bar Taylor from
3796 reprinting Thomson's poem without Millar's permission. That common law
3797 rule thus effectively gave the booksellers a perpetual right to
3798 control the publication of any book assigned to them.
3799 </p><a class="indexterm" name="idp8122240"></a><a class="indexterm" name="idp8123216"></a><a class="indexterm" name="idp8124192"></a><a class="indexterm" name="idxbritishparliament3"></a><p>
3800 Considered as a matter of abstract justice&#8212;reasoning as if
3801 justice were just a matter of logical deduction from first
3802 principles&#8212;Mansfield's conclusion might make some sense. But
3803 what it ignored was the larger issue that Parliament had struggled
3804 with in 1710: How best to limit
3805
3806 the monopoly power of publishers? Parliament's strategy was to offer a
3807 term for existing works that was long enough to buy peace in 1710, but
3808 short enough to assure that culture would pass into competition within
3809 a reasonable period of time. Within twenty-one years, Parliament
3810 believed, Britain would mature from the controlled culture that the
3811 Crown coveted to the free culture that we inherited.
3812 </p><a class="indexterm" name="idp8127760"></a><a class="indexterm" name="idxdonaldsonalexander2"></a><a class="indexterm" name="idxscottishpublishers2"></a><p>
3813 The fight to defend the limits of the Statute of Anne was not to end
3814 there, however, and it is here that Donaldson enters the mix.
3815 </p><a class="indexterm" name="idp8131728"></a><a class="indexterm" name="idp8132480"></a><a class="indexterm" name="idxhouseoflords"></a><a class="indexterm" name="idxsupremecourtushouseoflordsvs"></a><p>
3816 Millar died soon after his victory, so his case was not appealed. His
3817 estate sold Thomson's poems to a syndicate of printers that included
3818 Thomas Beckett.<a href="#ftn.idp8136384" class="footnote" name="idp8136384"><sup class="footnote">[109]</sup></a>
3819 Donaldson then released an unauthorized edition
3820 of Thomson's works. Beckett, on the strength of the decision in <em class="citetitle">Millar</em>,
3821 got an injunction against Donaldson. Donaldson appealed the case to
3822 the House of Lords, which functioned much like our own Supreme
3823 Court. In February of 1774, that body had the chance to interpret the
3824 meaning of Parliament's limits from sixty years before.
3825 </p><a class="indexterm" name="idp8138064"></a><a class="indexterm" name="idp8139040"></a><a class="indexterm" name="idxdonaldsonvbeckett"></a><a class="indexterm" name="idxcommonlaw2"></a><p>
3826 As few legal cases ever do, <em class="citetitle">Donaldson</em> v. <em class="citetitle">Beckett</em> drew an
3827 enormous amount of attention throughout Britain. Donaldson's lawyers
3828 argued that whatever rights may have existed under the common law, the
3829 Statute of Anne terminated those rights. After passage of the Statute
3830 of Anne, the only legal protection for an exclusive right to control
3831 publication came from that statute. Thus, they argued, after the term
3832 specified in the Statute of Anne expired, works that had been
3833 protected by the statute were no longer protected.
3834 </p><a class="indexterm" name="idp8144112"></a><p>
3835 The House of Lords was an odd institution. Legal questions were
3836 presented to the House and voted upon first by the <span class="quote">«<span class="quote">law lords,</span>»</span>
3837 members of special legal distinction who functioned much like the
3838 Justices in our Supreme Court. Then, after the law lords voted, the
3839 House of Lords generally voted.
3840 </p><a class="indexterm" name="idp8146160"></a><a class="indexterm" name="idxcopyrightinperpetuity3"></a><a class="indexterm" name="idxpublicdomainenglishlegalestablishmentof"></a><p>
3841 The reports about the law lords' votes are mixed. On some counts,
3842 it looks as if perpetual copyright prevailed. But there is no ambiguity
3843
3844 about how the House of Lords voted as whole. By a two-to-one majority
3845 (22 to 11) they voted to reject the idea of perpetual copyrights.
3846 Whatever one's understanding of the common law, now a copyright was
3847 fixed for a limited time, after which the work protected by copyright
3848 passed into the public domain.
3849 </p><a class="indexterm" name="idp8151232"></a><a class="indexterm" name="idp8151984"></a><a class="indexterm" name="idp8152736"></a><a class="indexterm" name="idp8153488"></a><a class="indexterm" name="idp8154240"></a><p>
3850 <span class="quote">«<span class="quote">The public domain.</span>»</span> Before the case of <em class="citetitle">Donaldson</em>
3851 v. <em class="citetitle">Beckett</em>, there was no clear idea of a public domain in
3852 England. Before 1774, there was a strong argument that common law
3853 copyrights were perpetual.  After 1774, the public domain was
3854 born. For the first time in Anglo-American history, the legal control
3855 over creative works expired, and the greatest works in English
3856 history&#8212;including those of Shakespeare, Bacon, Milton, Johnson,
3857 and Bunyan&#8212;were free of legal restraint.
3858 </p><a class="indexterm" name="idp8156400"></a><a class="indexterm" name="idp8158032"></a><a class="indexterm" name="idp8159008"></a><a class="indexterm" name="idp8159984"></a><a class="indexterm" name="idp8160960"></a><a class="indexterm" name="idp8161936"></a><p>
3859 It is hard for us to imagine, but this decision by the House of Lords
3860 fueled an extraordinarily popular and political reaction. In Scotland,
3861 where most of the <span class="quote">«<span class="quote">pirate publishers</span>»</span> did their work, people
3862 celebrated the decision in the streets. As the <em class="citetitle">Edinburgh Advertiser</em>
3863 reported, <span class="quote">«<span class="quote">No private cause has so much engrossed the attention of the
3864 public, and none has been tried before the House of Lords in the
3865 decision of which so many individuals were interested.</span>»</span> <span class="quote">«<span class="quote">Great
3866 rejoicing in Edinburgh upon victory over literary property: bonfires
3867 and illuminations.</span>»</span><a href="#ftn.idp8164832" class="footnote" name="idp8164832"><sup class="footnote">[110]</sup></a>
3868 </p><a class="indexterm" name="idp8165728"></a><p>
3869 In London, however, at least among publishers, the reaction was
3870 equally strong in the opposite direction. The <em class="citetitle">Morning Chronicle</em>
3871 reported:
3872 </p><div class="blockquote"><blockquote class="blockquote"><p>
3873 By the above decision &#8230; near 200,000 pounds worth of what was
3874 honestly purchased at public sale, and which was yesterday thought
3875 property is now reduced to nothing. The Booksellers of London and
3876 Westminster, many of whom sold estates and houses to purchase
3877 Copy-right, are in a manner ruined, and those who after many years
3878 industry thought they had acquired a competency to provide for their
3879 families now find themselves without a shilling to devise to their
3880 successors.<a href="#ftn.idp8084736" class="footnote" name="idp8084736"><sup class="footnote">[111]</sup></a>
3881 </p></blockquote></div><a class="indexterm" name="idp8169632"></a><a class="indexterm" name="idp8170384"></a><p>
3882
3883 <span class="quote">«<span class="quote">Ruined</span>»</span> is a bit of an exaggeration. But it is not an exaggeration to
3884 say that the change was profound. The decision of the House of Lords
3885 meant that the booksellers could no longer control how culture in
3886 England would grow and develop. Culture in England was thereafter
3887 <span class="emphasis"><em>free</em></span>.  Not in the sense that copyrights would not
3888 be respected, for of course, for a limited time after a work was
3889 published, the bookseller had an exclusive right to control the
3890 publication of that book. And not in the sense that books could be
3891 stolen, for even after a copyright expired, you still had to buy the
3892 book from someone. But <span class="emphasis"><em>free</em></span> in the sense that the
3893 culture and its growth would no longer be controlled by a small group
3894 of publishers. As every free market does, this free market of free
3895 culture would grow as the consumers and producers chose. English
3896 culture would develop as the many English readers chose to let it
3897 develop&#8212; chose in the books they bought and wrote; chose in the
3898 memes they repeated and endorsed. Chose in a <span class="emphasis"><em>competitive
3899 context</em></span>, not a context in which the choices about what
3900 culture is available to people and how they get access to it are made
3901 by the few despite the wishes of the many.
3902 </p><a class="indexterm" name="idp8174864"></a><a class="indexterm" name="idp8175840"></a><p>
3903 At least, this was the rule in a world where the Parliament is
3904 antimonopoly, resistant to the protectionist pleas of publishers. In a
3905 world where the Parliament is more pliant, free culture would be less
3906 protected.
3907 </p><a class="indexterm" name="idp8177216"></a><a class="indexterm" name="idp8178192"></a><a class="indexterm" name="idp8179168"></a><a class="indexterm" name="idp8180144"></a><a class="indexterm" name="idp8181120"></a><a class="indexterm" name="idp8182096"></a><a class="indexterm" name="idp8183072"></a><a class="indexterm" name="idp8184048"></a><a class="indexterm" name="idp8185024"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8001600" class="footnote"><p><a href="#idp8001600" class="para"><sup class="para">[98] </sup></a>
3908
3909 <a class="indexterm" name="idp8002240"></a>
3910 <a class="indexterm" name="idp8002992"></a>
3911 Jacob Tonson is typically remembered for his associations with prominent
3912 eighteenth-century literary figures, especially John Dryden, and for his
3913 handsome <span class="quote">«<span class="quote">definitive editions</span>»</span> of classic works. In addition to <em class="citetitle">Romeo and
3914 Juliet</em>, he published an astonishing array of works that still remain at the
3915 heart of the English canon, including collected works of Shakespeare, Ben
3916 Jonson, John Milton, and John Dryden. See Keith Walker, <span class="quote">«<span class="quote">Jacob Tonson,
3917 Bookseller,</span>»</span> <em class="citetitle">American Scholar</em> 61:3 (1992): 424&#8211;31.
3918 </p></div><div id="ftn.idp8005904" class="footnote"><p><a href="#idp8005904" class="para"><sup class="para">[99] </sup></a>
3919
3920 Lyman Ray Patterson, <em class="citetitle">Copyright in Historical Perspective</em> (Nashville:
3921 Vanderbilt University Press, 1968), 151&#8211;52.
3922 </p></div><div id="ftn.idp8013504" class="footnote"><p><a href="#idp8013504" class="para"><sup class="para">[100] </sup></a>
3923
3924 <a class="indexterm" name="idp8014144"></a>
3925 As Siva Vaidhyanathan nicely argues, it is erroneous to call this a
3926 <span class="quote">«<span class="quote">copyright law.</span>»</span> See Vaidhyanathan, <em class="citetitle">Copyrights and Copywrongs</em>, 40.
3927 </p></div><div id="ftn.idp8063616" class="footnote"><p><a href="#idp8063616" class="para"><sup class="para">[101] </sup></a>
3928
3929
3930 Philip Wittenberg, <em class="citetitle">The Protection and Marketing of Literary
3931 Property</em> (New York: J. Messner, Inc., 1937), 31.
3932 </p></div><div id="ftn.idp8074704" class="footnote"><p><a href="#idp8074704" class="para"><sup class="para">[102] </sup></a>
3933
3934 A Letter to a Member of Parliament concerning the Bill now depending
3935 in the House of Commons, for making more effectual an Act in the
3936 Eighth Year of the Reign of Queen Anne, entitled, An Act for the
3937 Encouragement of Learning, by Vesting the Copies of Printed Books in
3938 the Authors or Purchasers of such Copies, during the Times therein
3939 mentioned (London, 1735), in Brief Amici Curiae of Tyler T. Ochoa et
3940 al., 8, <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 537 U.S. 186 (2003) (No. 01-618).
3941 </p></div><div id="ftn.idp7822992" class="footnote"><p><a href="#idp7822992" class="para"><sup class="para">[103] </sup></a>
3942
3943 <a class="indexterm" name="idp8085472"></a>
3944 <a class="indexterm" name="idp8086224"></a>
3945 Lyman Ray Patterson, <span class="quote">«<span class="quote">Free Speech, Copyright, and Fair Use,</span>»</span> <em class="citetitle">Vanderbilt
3946 Law Review</em> 40 (1987): 28. For a wonderfully compelling account, see
3947 Vaidhyanathan, 37&#8211;48.
3948 </p></div><div id="ftn.idp8091872" class="footnote"><p><a href="#idp8091872" class="para"><sup class="para">[104] </sup></a>
3949
3950 For a compelling account, see David Saunders, <em class="citetitle">Authorship and Copyright</em>
3951 (London: Routledge, 1992), 62&#8211;69.
3952 </p></div><div id="ftn.idp8097920" class="footnote"><p><a href="#idp8097920" class="para"><sup class="para">[105] </sup></a>
3953
3954 Mark Rose, <em class="citetitle">Authors and Owners</em> (Cambridge: Harvard University Press,
3955 1993), 92.
3956 <a class="indexterm" name="idp8098944"></a>
3957 </p></div><div id="ftn.idp8101264" class="footnote"><p><a href="#idp8101264" class="para"><sup class="para">[106] </sup></a>
3958
3959 Ibid., 93.
3960 </p></div><div id="ftn.idp8104192" class="footnote"><p><a href="#idp8104192" class="para"><sup class="para">[107] </sup></a>
3961
3962 <a class="indexterm" name="idp8104832"></a>
3963 Lyman Ray Patterson, <em class="citetitle">Copyright in Historical Perspective</em>, 167 (quoting
3964 Borwell).
3965 </p></div><div id="ftn.idp8117856" class="footnote"><p><a href="#idp8117856" class="para"><sup class="para">[108] </sup></a>
3966
3967 Howard B. Abrams, <span class="quote">«<span class="quote">The Historic Foundation of American Copyright Law:
3968 Exploding the Myth of Common Law Copyright,</span>»</span> <em class="citetitle">Wayne Law Review</em> 29
3969 (1983): 1152.
3970 </p></div><div id="ftn.idp8136384" class="footnote"><p><a href="#idp8136384" class="para"><sup class="para">[109] </sup></a>
3971
3972 Ibid., 1156.
3973 </p></div><div id="ftn.idp8164832" class="footnote"><p><a href="#idp8164832" class="para"><sup class="para">[110] </sup></a>
3974
3975 Rose, 97.
3976 </p></div><div id="ftn.idp8084736" class="footnote"><p><a href="#idp8084736" class="para"><sup class="para">[111] </sup></a>
3977
3978 Ibid.
3979 </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>
3980 <span class="strong"><strong>Jon Else</strong></span> is a filmmaker. He is best
3981 known for his documentaries and has been very successful in spreading
3982 his art. He is also a teacher, and as a teacher myself, I envy the
3983 loyalty and admiration that his students feel for him. (I met, by
3984 accident, two of his students at a dinner party.  He was their god.)
3985 </p><p>
3986 Else worked on a documentary that I was involved in. At a break,
3987 he told me a story about the freedom to create with film in America
3988 today.
3989 </p><a class="indexterm" name="idxwagnerrichard"></a><a class="indexterm" name="idp8197536"></a><p>
3990 In 1990, Else was working on a documentary about Wagner's Ring
3991 Cycle. The focus was stagehands at the San Francisco Opera.
3992 Stagehands are a particularly funny and colorful element of an opera.
3993 During a show, they hang out below the stage in the grips' lounge and
3994 in the lighting loft. They make a perfect contrast to the art on the
3995 stage.
3996 </p><a class="indexterm" name="idxsimpsonsthe"></a><p>
3997 During one of the performances, Else was shooting some stagehands
3998 playing checkers. In one corner of the room was a television set.
3999 Playing on the television set, while the stagehands played checkers
4000 and the opera company played Wagner, was <em class="citetitle">The Simpsons</em>. As Else judged
4001
4002 it, this touch of cartoon helped capture the flavor of what was special
4003 about the scene.
4004 </p><a class="indexterm" name="idp8201648"></a><a class="indexterm" name="idp8202624"></a><p>
4005 Years later, when he finally got funding to complete the film, Else
4006 attempted to clear the rights for those few seconds of <em class="citetitle">The Simpsons</em>.
4007 For of course, those few seconds are copyrighted; and of course, to use
4008 copyrighted material you need the permission of the copyright owner,
4009 unless <span class="quote">«<span class="quote">fair use</span>»</span> or some other privilege applies.
4010 </p><a class="indexterm" name="idxgraciefilms"></a><a class="indexterm" name="idxgroeningmatt"></a><p>
4011 Else called <em class="citetitle">Simpsons</em> creator Matt Groening's office to get permission.
4012 Groening approved the shot. The shot was a four-and-a-halfsecond image
4013 on a tiny television set in the corner of the room. How could it hurt?
4014 Groening was happy to have it in the film, but he told Else to contact
4015 Gracie Films, the company that produces the program.
4016 </p><a class="indexterm" name="idxfoxfilmcompany"></a><p>
4017 Gracie Films was okay with it, too, but they, like Groening, wanted
4018 to be careful. So they told Else to contact Fox, Gracie's parent company.
4019 Else called Fox and told them about the clip in the corner of the one
4020 room shot of the film. Matt Groening had already given permission,
4021 Else said. He was just confirming the permission with Fox.
4022 </p><a class="indexterm" name="idp8210624"></a><p>
4023 Then, as Else told me, <span class="quote">«<span class="quote">two things happened. First we discovered
4024 &#8230; that Matt Groening doesn't own his own creation&#8212;or at
4025 least that someone [at Fox] believes he doesn't own his own creation.</span>»</span>
4026 And second, Fox <span class="quote">«<span class="quote">wanted ten thousand dollars as a licensing fee for us
4027 to use this four-point-five seconds of &#8230; entirely unsolicited
4028 <em class="citetitle">Simpsons</em> which was in the corner of the shot.</span>»</span>
4029 </p><a class="indexterm" name="idp8213568"></a><a class="indexterm" name="idp8214432"></a><a class="indexterm" name="idxherrerarebecca"></a><p>
4030 Else was certain there was a mistake. He worked his way up to someone
4031 he thought was a vice president for licensing, Rebecca Herrera.  He
4032 explained to her, <span class="quote">«<span class="quote">There must be some mistake here. &#8230;  We're
4033 asking for your educational rate on this.</span>»</span> That was the educational
4034 rate, Herrera told Else. A day or so later, Else called again to
4035 confirm what he had been told.
4036 </p><a class="indexterm" name="idp8217824"></a><p>
4037 <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
4038 have your facts straight,</span>»</span> she said. It would cost $10,000 to use the
4039 clip of <em class="citetitle">The Simpsons</em> in the corner of a shot in a documentary film
4040 about
4041
4042
4043 Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, <span class="quote">«<span class="quote">And
4044 if you quote me, I'll turn you over to our attorneys.</span>»</span> As an assistant
4045 to Herrera told Else later on, <span class="quote">«<span class="quote">They don't give a shit. They just want
4046 the money.</span>»</span>
4047 </p><a class="indexterm" name="idp8221296"></a><a class="indexterm" name="idp8222272"></a><a class="indexterm" name="idp8223024"></a><p>
4048 Else didn't have the money to buy the right to replay what was playing
4049 on the television backstage at the San Francisco Opera. To reproduce
4050 this reality was beyond the documentary filmmaker's budget. At the
4051 very last minute before the film was to be released, Else digitally
4052 replaced the shot with a clip from another film that he had worked on,
4053 <em class="citetitle">The Day After Trinity</em>, from ten years before.
4054 </p><a class="indexterm" name="idxfoxfilmcompany2"></a><a class="indexterm" name="idxgroeningmatt2"></a><p>
4055 There's no doubt that someone, whether Matt Groening or Fox, owns the
4056 copyright to <em class="citetitle">The Simpsons</em>. That copyright is their property.  To use
4057 that copyrighted material thus sometimes requires the permission of
4058 the copyright owner. If the use that Else wanted to make of the
4059 <em class="citetitle">Simpsons</em> copyright were one of the uses restricted by the law, then he
4060 would need to get the permission of the copyright owner before he
4061 could use the work in that way. And in a free market, it is the owner
4062 of the copyright who gets to set the price for any use that the law
4063 says the owner gets to control.
4064 </p><p>
4065 For example, <span class="quote">«<span class="quote">public performance</span>»</span> is a use of <em class="citetitle">The Simpsons</em> that the
4066 copyright owner gets to control. If you take a selection of favorite
4067 episodes, rent a movie theater, and charge for tickets to come see <span class="quote">«<span class="quote">My
4068 Favorite <em class="citetitle">Simpsons</em>,</span>»</span> then you need to get permission from the copyright
4069 owner. And the copyright owner (rightly, in my view) can charge
4070 whatever she wants&#8212;$10 or $1,000,000. That's her right, as set
4071 by the law.
4072 </p><p>
4073 But when lawyers hear this story about Jon Else and Fox, their first
4074 thought is <span class="quote">«<span class="quote">fair use.</span>»</span><a href="#ftn.idp8232048" class="footnote" name="idp8232048"><sup class="footnote">[112]</sup></a>
4075 Else's use of just 4.5 seconds of an indirect shot of a <em class="citetitle">Simpsons</em>
4076 episode is clearly a fair use of <em class="citetitle">The Simpsons</em>&#8212;and fair use does
4077 not require the permission of anyone.
4078 </p><a class="indexterm" name="idp8235376"></a><a class="indexterm" name="idp8236352"></a><p>
4079
4080 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:
4081 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idxfairuselegalintimidationtacticsagainst"></a><p>
4082 The <em class="citetitle">Simpsons</em> fiasco was for me a great lesson in the gulf between what
4083 lawyers find irrelevant in some abstract sense, and what is crushingly
4084 relevant in practice to those of us actually trying to make and
4085 broadcast documentaries. I never had any doubt that it was <span class="quote">«<span class="quote">clearly
4086 fair use</span>»</span> in an absolute legal sense. But I couldn't rely on the
4087 concept in any concrete way. Here's why:
4088 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><a class="indexterm" name="idp8242864"></a><p>
4089
4090 Before our films can be broadcast, the network requires that we buy
4091 Errors and Omissions insurance. The carriers require a detailed
4092 <span class="quote">«<span class="quote">visual cue sheet</span>»</span> listing the source and licensing status of each
4093 shot in the film. They take a dim view of <span class="quote">«<span class="quote">fair use,</span>»</span> and a claim of
4094 <span class="quote">«<span class="quote">fair use</span>»</span> can grind the application process to a halt.
4095 </p></li><li class="listitem"><a class="indexterm" name="idxfoxfilmcompany3"></a><a class="indexterm" name="idp8247152"></a><a class="indexterm" name="idp8247904"></a><a class="indexterm" name="idp8248656"></a><p>
4096
4097 I probably never should have asked Matt Groening in the first
4098 place. But I knew (at least from folklore) that Fox had a history of
4099 tracking down and stopping unlicensed <em class="citetitle">Simpsons</em> usage, just as George
4100 Lucas had a very high profile litigating <em class="citetitle">Star Wars</em> usage. So I decided
4101 to play by the book, thinking that we would be granted free or cheap
4102 license to four seconds of <em class="citetitle">Simpsons</em>. As a documentary producer working
4103 to exhaustion on a shoestring, the last thing I wanted was to risk
4104 legal trouble, even nuisance legal trouble, and even to defend a
4105 principle.
4106 </p></li><li class="listitem"><p>
4107
4108 I did, in fact, speak with one of your colleagues at Stanford Law
4109 School &#8230; who confirmed that it was fair use. He also confirmed
4110 that Fox would <span class="quote">«<span class="quote">depose and litigate you to within an inch of your
4111 life,</span>»</span> regardless of the merits of my claim. He made clear that it
4112 would boil down to who had the bigger legal department and the deeper
4113 pockets, me or them.
4114
4115 </p><a class="indexterm" name="idp8253760"></a></li><li class="listitem"><p>
4116
4117 The question of fair use usually comes up at the end of the
4118 project, when we are up against a release deadline and out of
4119 money.
4120 </p></li></ol></div></blockquote></div><a class="indexterm" name="idp8256032"></a><p>
4121 In theory, fair use means you need no permission. The theory therefore
4122 supports free culture and insulates against a permission culture.  But
4123 in practice, fair use functions very differently. The fuzzy lines of
4124 the law, tied to the extraordinary liability if lines are crossed,
4125 means that the effective fair use for many types of creators is
4126 slight. The law has the right aim; practice has defeated the aim.
4127 </p><p>
4128 This practice shows just how far the law has come from its
4129 eighteenth-century roots. The law was born as a shield to protect
4130 publishers' profits against the unfair competition of a pirate. It has
4131 matured into a sword that interferes with any use, transformative or
4132 not.
4133 </p><a class="indexterm" name="idp8258496"></a><a class="indexterm" name="idp8259472"></a><a class="indexterm" name="idp8260448"></a><a class="indexterm" name="idp8261424"></a><a class="indexterm" name="idp8262400"></a><a class="indexterm" name="idp8263376"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8232048" class="footnote"><p><a href="#idp8232048" class="para"><sup class="para">[112] </sup></a>
4134
4135 For an excellent argument that such use is <span class="quote">«<span class="quote">fair use,</span>»</span> but that
4136 lawyers don't permit recognition that it is <span class="quote">«<span class="quote">fair use,</span>»</span> see Richard
4137 A. Posner with William F. Patry, <span class="quote">«<span class="quote">Fair Use and Statutory Reform in the
4138 Wake of <em class="citetitle">Eldred</em></span>»</span> (draft on file with author), University of Chicago
4139 Law School, 5 August 2003.
4140 </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="idp8265856"></a><a class="indexterm" name="idxalbenalex1"></a><a class="indexterm" name="idp8267840"></a><p>
4141 <span class="strong"><strong>In 1993</strong></span>, Alex Alben was a lawyer
4142 working at Starwave, Inc.  Starwave was an innovative company founded
4143 by Microsoft cofounder Paul Allen to develop digital
4144 entertainment. Long before the Internet became popular, Starwave began
4145 investing in new technology for delivering entertainment in
4146 anticipation of the power of networks.
4147 </p><a class="indexterm" name="idxartistsretrospective"></a><a class="indexterm" name="idxcdroms"></a><p>
4148 Alben had a special interest in new technology. He was intrigued by
4149 the emerging market for CD-ROM technology&#8212;not to distribute
4150 film, but to do things with film that otherwise would be very
4151 difficult.  In 1993, he launched an initiative to develop a product to
4152 build retrospectives on the work of particular actors. The first actor
4153 chosen was Clint Eastwood. The idea was to showcase all of the work of
4154 Eastwood, with clips from his films and interviews with figures
4155 important to his career.
4156 </p><p>
4157 At that time, Eastwood had made more than fifty films, as an actor and
4158 as a director. Alben began with a series of interviews with Eastwood,
4159 asking him about his career. Because Starwave produced those
4160 interviews, it was free to include them on the CD.
4161 </p><p>
4162
4163 That alone would not have made a very interesting product, so
4164 Starwave wanted to add content from the movies in Eastwood's career:
4165 posters, scripts, and other material relating to the films Eastwood
4166 made. Most of his career was spent at Warner Brothers, and so it was
4167 relatively easy to get permission for that content.
4168 </p><p>
4169 Then Alben and his team decided to include actual film clips. <span class="quote">«<span class="quote">Our
4170 goal was that we were going to have a clip from every one of
4171 Eastwood's films,</span>»</span> Alben told me. It was here that the problem
4172 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
4173 one had ever tried to do this in the context of an artistic look at an
4174 actor's career.</span>»</span>
4175 </p><p>
4176 Alben brought the idea to Michael Slade, the CEO of Starwave.
4177 Slade asked, <span class="quote">«<span class="quote">Well, what will it take?</span>»</span>
4178 </p><p>
4179 Alben replied, <span class="quote">«<span class="quote">Well, we're going to have to clear rights from
4180 everyone who appears in these films, and the music and everything
4181 else that we want to use in these film clips.</span>»</span> Slade said, <span class="quote">«<span class="quote">Great! Go
4182 for it.</span>»</span><a href="#ftn.idp8279360" class="footnote" name="idp8279360"><sup class="footnote">[113]</sup></a>
4183 </p><p>
4184 The problem was that neither Alben nor Slade had any idea what
4185 clearing those rights would mean. Every actor in each of the films
4186 could have a claim to royalties for the reuse of that film. But CD-
4187 ROMs had not been specified in the contracts for the actors, so there
4188 was no clear way to know just what Starwave was to do.
4189 </p><p>
4190 I asked Alben how he dealt with the problem. With an obvious
4191 pride in his resourcefulness that obscured the obvious bizarreness of his
4192 tale, Alben recounted just what they did:
4193 </p><div class="blockquote"><blockquote class="blockquote"><p>
4194 So we very mechanically went about looking up the film clips.  We made
4195 some artistic decisions about what film clips to include&#8212;of
4196 course we were going to use the <span class="quote">«<span class="quote">Make my day</span>»</span> clip from <em class="citetitle">Dirty
4197 Harry</em>. But you then need to get the guy on the ground who's wiggling
4198 under the gun and you need to get his permission.  And then you have
4199 to decide what you are going to pay him.
4200 </p><p>
4201
4202 We decided that it would be fair if we offered them the dayplayer rate
4203 for the right to reuse that performance. We're talking about a clip of
4204 less than a minute, but to reuse that performance in the CD-ROM the
4205 rate at the time was about $600.  So we had to identify the
4206 people&#8212;some of them were hard to identify because in Eastwood
4207 movies you can't tell who's the guy crashing through the
4208 glass&#8212;is it the actor or is it the stuntman?  And then we just,
4209 we put together a team, my assistant and some others, and we just
4210 started calling people.
4211 </p></blockquote></div><a class="indexterm" name="idp8287072"></a><p>
4212 Some actors were glad to help&#8212;Donald Sutherland, for example,
4213 followed up himself to be sure that the rights had been cleared.
4214 Others were dumbfounded at their good fortune. Alben would ask,
4215 <span class="quote">«<span class="quote">Hey, can I pay you $600 or maybe if you were in two films, you
4216 know, $1,200?</span>»</span> And they would say, <span class="quote">«<span class="quote">Are you for real? Hey, I'd love
4217 to get $1,200.</span>»</span> And some of course were a bit difficult (estranged
4218 ex-wives, in particular). But eventually, Alben and his team had
4219 cleared the rights to this retrospective CD-ROM on Clint Eastwood's
4220 career.
4221 </p><p>
4222 It was one <span class="emphasis"><em>year</em></span> later&#8212;<span class="quote">«<span class="quote">and even then we
4223 weren't sure whether we were totally in the clear.</span>»</span>
4224 </p><p>
4225 Alben is proud of his work. The project was the first of its kind and
4226 the only time he knew of that a team had undertaken such a massive
4227 project for the purpose of releasing a retrospective.
4228 </p><div class="blockquote"><blockquote class="blockquote"><p>
4229 Everyone thought it would be too hard. Everyone just threw up their
4230 hands and said, <span class="quote">«<span class="quote">Oh, my gosh, a film, it's so many copyrights, there's
4231 the music, there's the screenplay, there's the director, there's the
4232 actors.</span>»</span> But we just broke it down. We just put it into its
4233 constituent parts and said, <span class="quote">«<span class="quote">Okay, there's this many actors, this many
4234 directors, &#8230; this many musicians,</span>»</span> and we just went at it very
4235 systematically and cleared the rights.
4236 </p></blockquote></div><p>
4237
4238
4239 And no doubt, the product itself was exceptionally good. Eastwood
4240 loved it, and it sold very well.
4241 </p><a class="indexterm" name="idp8295136"></a><p>
4242 But I pressed Alben about how weird it seems that it would have to
4243 take a year's work simply to clear rights. No doubt Alben had done
4244 this efficiently, but as Peter Drucker has famously quipped, <span class="quote">«<span class="quote">There is
4245 nothing so useless as doing efficiently that which should not be done
4246 at all.</span>»</span><a href="#ftn.idp8296736" class="footnote" name="idp8296736"><sup class="footnote">[114]</sup></a>
4247 Did it make sense, I asked Alben, that this is the way a new work
4248 has to be made?
4249 </p><p>
4250 For, as he acknowledged, <span class="quote">«<span class="quote">very few &#8230; have the time and resources,
4251 and the will to do this,</span>»</span> and thus, very few such works would ever be
4252 made. Does it make sense, I asked him, from the standpoint of what
4253 anybody really thought they were ever giving rights for originally, that
4254 you would have to go clear rights for these kinds of clips?
4255 </p><div class="blockquote"><blockquote class="blockquote"><p>
4256 I don't think so. When an actor renders a performance in a movie,
4257 he or she gets paid very well. &#8230; And then when 30 seconds of
4258 that performance is used in a new product that is a retrospective
4259 of somebody's career, I don't think that that person &#8230; should be
4260 compensated for that.
4261 </p></blockquote></div><p>
4262 Or at least, is this <span class="emphasis"><em>how</em></span> the artist should be
4263 compensated? Would it make sense, I asked, for there to be some kind
4264 of statutory license that someone could pay and be free to make
4265 derivative use of clips like this?  Did it really make sense that a
4266 follow-on creator would have to track down every artist, actor,
4267 director, musician, and get explicit permission from each? Wouldn't a
4268 lot more be created if the legal part of the creative process could be
4269 made to be more clean?
4270 </p><div class="blockquote"><blockquote class="blockquote"><p>
4271 Absolutely. I think that if there were some fair-licensing
4272 mechanism&#8212;where you weren't subject to hold-ups and you weren't
4273 subject to estranged former spouses&#8212;you'd see a lot more of this
4274 work, because it wouldn't be so daunting to try to put together a
4275
4276 retrospective of someone's career and meaningfully illustrate it with
4277 lots of media from that person's career. You'd build in a cost as the
4278 producer of one of these things. You'd build in a cost of paying X
4279 dollars to the talent that performed. But it would be a known
4280 cost. That's the thing that trips everybody up and makes this kind of
4281 product hard to get off the ground. If you knew I have a hundred
4282 minutes of film in this product and it's going to cost me X, then you
4283 build your budget around it, and you can get investments and
4284 everything else that you need to produce it. But if you say, <span class="quote">«<span class="quote">Oh, I
4285 want a hundred minutes of something and I have no idea what it's going
4286 to cost me, and a certain number of people are going to hold me up for
4287 money,</span>»</span> then it becomes difficult to put one of these things together.
4288 </p></blockquote></div><p>
4289 Alben worked for a big company. His company was backed by some of the
4290 richest investors in the world. He therefore had authority and access
4291 that the average Web designer would not have. So if it took him a
4292 year, how long would it take someone else? And how much creativity is
4293 never made just because the costs of clearing the rights are so high?
4294 </p><a class="indexterm" name="idp8305904"></a><a class="indexterm" name="idp8307072"></a><p>
4295 These costs are the burdens of a kind of regulation. Put on a
4296 Republican hat for a moment, and get angry for a bit. The government
4297 defines the scope of these rights, and the scope defined determines
4298 how much it's going to cost to negotiate them. (Remember the idea that
4299 land runs to the heavens, and imagine the pilot purchasing flythrough
4300 rights as he negotiates to fly from Los Angeles to San Francisco.)
4301 These rights might well have once made sense; but as circumstances
4302 change, they make no sense at all. Or at least, a well-trained,
4303 regulationminimizing Republican should look at the rights and ask,
4304 <span class="quote">«<span class="quote">Does this still make sense?</span>»</span>
4305 </p><a class="indexterm" name="idp8310432"></a><p>
4306 I've seen the flash of recognition when people get this point, but only
4307 a few times. The first was at a conference of federal judges in California.
4308 The judges were gathered to discuss the emerging topic of cyber-law. I
4309 was asked to be on the panel. Harvey Saferstein, a well-respected lawyer
4310
4311
4312 from an L.A. firm, introduced the panel with a video that he and a
4313 friend, Robert Fairbank, had produced.
4314 </p><p>
4315 The video was a brilliant collage of film from every period in the
4316 twentieth century, all framed around the idea of a <em class="citetitle">60 Minutes</em> episode.
4317 The execution was perfect, down to the sixty-minute stopwatch. The
4318 judges loved every minute of it.
4319 </p><a class="indexterm" name="idp8313904"></a><p>
4320 When the lights came up, I looked over to my copanelist, David
4321 Nimmer, perhaps the leading copyright scholar and practitioner in the
4322 nation. He had an astonished look on his face, as he peered across the
4323 room of over 250 well-entertained judges. Taking an ominous tone, he
4324 began his talk with a question: <span class="quote">«<span class="quote">Do you know how many federal laws
4325 were just violated in this room?</span>»</span>
4326 </p><p>
4327 <a class="indexterm" name="idp8316144"></a>
4328 <a class="indexterm" name="idp8316960"></a>
4329 <a class="indexterm" name="idp8317776"></a>
4330 <a class="indexterm" name="idp8318880"></a>
4331 <a class="indexterm" name="idp8319712"></a>
4332 For of course, the two brilliantly talented creators who made this
4333 film hadn't done what Alben did. They hadn't spent a year clearing the
4334 rights to these clips; technically, what they had done violated the
4335 law.  Of course, it wasn't as if they or anyone were going to be
4336 prosecuted for this violation (the presence of 250 judges and a gaggle
4337 of federal marshals notwithstanding). But Nimmer was making an
4338 important point: A year before anyone would have heard of the word
4339 Napster, and two years before another member of our panel, David
4340 Boies, would defend Napster before the Ninth Circuit Court of Appeals,
4341 Nimmer was trying to get the judges to see that the law would not be
4342 friendly to the capacities that this technology would
4343 enable. Technology means you can now do amazing things easily; but you
4344 couldn't easily do them legally.
4345 </p><p>
4346 We live in a <span class="quote">«<span class="quote">cut and paste</span>»</span> culture enabled by technology. Anyone
4347 building a presentation knows the extraordinary freedom that the cut
4348 and paste architecture of the Internet created&#8212;in a second you can
4349 find just about any image you want; in another second, you can have it
4350 planted in your presentation.
4351 </p><a class="indexterm" name="idp8322208"></a><p>
4352 But presentations are just a tiny beginning. Using the Internet and
4353
4354 its archives, musicians are able to string together mixes of sound
4355 never before imagined; filmmakers are able to build movies out of
4356 clips on computers around the world. An extraordinary site in Sweden
4357 takes images of politicians and blends them with music to create
4358 biting political commentary. A site called Camp Chaos has produced
4359 some of the most biting criticism of the record industry that there is
4360 through the mixing of Flash! and music.
4361 </p><p>
4362 All of these creations are technically illegal. Even if the creators
4363 wanted to be <span class="quote">«<span class="quote">legal,</span>»</span> the cost of complying with the law is impossibly
4364 high. Therefore, for the law-abiding sorts, a wealth of creativity is
4365 never made. And for that part that is made, if it doesn't follow the
4366 clearance rules, it doesn't get released.
4367 </p><p>
4368 To some, these stories suggest a solution: Let's alter the mix of
4369 rights so that people are free to build upon our culture. Free to add
4370 or mix as they see fit. We could even make this change without
4371 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>
4372 Instead, the system could simply make it easy for follow-on creators
4373 to compensate artists without requiring an army of lawyers to come
4374 along: a rule, for example, that says <span class="quote">«<span class="quote">the royalty owed the copyright
4375 owner of an unregistered work for the derivative reuse of his work
4376 will be a flat 1 percent of net revenues, to be held in escrow for the
4377 copyright owner.</span>»</span> Under this rule, the copyright owner could benefit
4378 from some royalty, but he would not have the benefit of a full
4379 property right (meaning the right to name his own price) unless he
4380 registers the work.
4381 </p><p>
4382 Who could possibly object to this? And what reason would there be
4383 for objecting? We're talking about work that is not now being made;
4384 which if made, under this plan, would produce new income for artists.
4385 What reason would anyone have to oppose it?
4386 </p><p>
4387 <span class="strong"><strong>In February 2003</strong></span>, DreamWorks
4388 studios announced an agreement with Mike Myers, the comic genius of
4389 <em class="citetitle">Saturday Night Live</em> and
4390
4391 Austin Powers. According to the announcement, Myers and Dream-Works
4392 would work together to form a <span class="quote">«<span class="quote">unique filmmaking pact.</span>»</span> Under the
4393 agreement, DreamWorks <span class="quote">«<span class="quote">will acquire the rights to existing motion
4394 picture hits and classics, write new storylines and&#8212;with the use
4395 of stateof-the-art digital technology&#8212;insert Myers and other
4396 actors into the film, thereby creating an entirely new piece of
4397 entertainment.</span>»</span>
4398 </p><p>
4399 The announcement called this <span class="quote">«<span class="quote">film sampling.</span>»</span> As Myers explained,
4400 <span class="quote">«<span class="quote">Film Sampling is an exciting way to put an original spin on existing
4401 films and allow audiences to see old movies in a new light. Rap
4402 artists have been doing this for years with music and now we are able
4403 to take that same concept and apply it to film.</span>»</span> Steven Spielberg is
4404 quoted as saying, <span class="quote">«<span class="quote">If anyone can create a way to bring old films to
4405 new audiences, it is Mike.</span>»</span>
4406 </p><p>
4407 Spielberg is right. Film sampling by Myers will be brilliant. But if
4408 you don't think about it, you might miss the truly astonishing point
4409 about this announcement. As the vast majority of our film heritage
4410 remains under copyright, the real meaning of the DreamWorks
4411 announcement is just this: It is Mike Myers and only Mike Myers who is
4412 free to sample. Any general freedom to build upon the film archive of
4413 our culture, a freedom in other contexts presumed for us all, is now a
4414 privilege reserved for the funny and famous&#8212;and presumably rich.
4415 </p><p>
4416 This privilege becomes reserved for two sorts of reasons. The first
4417 continues the story of the last chapter: the vagueness of <span class="quote">«<span class="quote">fair use.</span>»</span>
4418 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
4419 rely upon so weak a doctrine to create. That leads to the second reason
4420 that the privilege is reserved for the few: The costs of negotiating the
4421 legal rights for the creative reuse of content are astronomically high.
4422 These costs mirror the costs with fair use: You either pay a lawyer to
4423 defend your fair use rights or pay a lawyer to track down permissions
4424 so you don't have to rely upon fair use rights. Either way, the creative
4425 process is a process of paying lawyers&#8212;again a privilege, or perhaps a
4426 curse, reserved for the few.
4427 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8279360" class="footnote"><p><a href="#idp8279360" class="para"><sup class="para">[113] </sup></a>
4428
4429 Technically, the rights that Alben had to clear were mainly those of
4430 publicity&#8212;rights an artist has to control the commercial
4431 exploitation of his image.  But these rights, too, burden <span class="quote">«<span class="quote">Rip, Mix,
4432 Burn</span>»</span> creativity, as this chapter evinces.
4433 <a class="indexterm" name="idp8280960"></a>
4434 <a class="indexterm" name="idp8282080"></a>
4435 </p></div><div id="ftn.idp8296736" class="footnote"><p><a href="#idp8296736" class="para"><sup class="para">[114] </sup></a>
4436
4437 U.S. Department of Commerce Office of Acquisition Management, <em class="citetitle">Seven
4438 Steps to Performance-Based Services Acquisition</em>, available at
4439 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #22</a>.
4440 </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="idp8340768"></a><p>
4441 <span class="strong"><strong>In April 1996</strong></span>, millions of
4442 <span class="quote">«<span class="quote">bots</span>»</span>&#8212;computer codes designed to
4443 <span class="quote">«<span class="quote">spider,</span>»</span> or automatically search the Internet and copy
4444 content&#8212;began running across the Net. Page by page, these bots
4445 copied Internet-based information onto a small set of computers
4446 located in a basement in San Francisco's Presidio. Once the bots
4447 finished the whole of the Internet, they started again. Over and over
4448 again, once every two months, these bits of code took copies of the
4449 Internet and stored them.
4450 </p><a class="indexterm" name="idp8344080"></a><p>
4451 By October 2001, the bots had collected more than five years of
4452 copies. And at a small announcement in Berkeley, California, the
4453 archive that these copies created, the Internet Archive, was opened to
4454 the world. Using a technology called <span class="quote">«<span class="quote">the Way Back Machine,</span>»</span> you could
4455 enter a Web page, and see all of its copies going back to 1996, as
4456 well as when those pages changed.
4457 </p><a class="indexterm" name="idxorwellgeorge"></a><p>
4458 This is the thing about the Internet that Orwell would have
4459 appreciated.  In the dystopia described in <em class="citetitle">1984</em>, old newspapers were
4460 constantly updated to assure that the current view of the world,
4461 approved of by the government, was not contradicted by previous news
4462 reports.
4463 </p><p>
4464
4465 Thousands of workers constantly reedited the past, meaning there was
4466 no way ever to know whether the story you were reading today was the
4467 story that was printed on the date published on the paper.
4468 </p><p>
4469 It's the same with the Internet. If you go to a Web page today,
4470 there's no way for you to know whether the content you are reading is
4471 the same as the content you read before. The page may seem the same,
4472 but the content could easily be different. The Internet is Orwell's
4473 library&#8212;constantly updated, without any reliable memory.
4474 </p><a class="indexterm" name="idp8349856"></a><a class="indexterm" name="idp8351664"></a><p>
4475 Until the Way Back Machine, at least. With the Way Back Machine, and
4476 the Internet Archive underlying it, you can see what the Internet
4477 was. You have the power to see what you remember. More importantly,
4478 perhaps, you also have the power to find what you don't remember and
4479 what others might prefer you forget.<a href="#ftn.idp8353056" class="footnote" name="idp8353056"><sup class="footnote">[115]</sup></a>
4480 </p><a class="indexterm" name="idp8356800"></a><p>
4481 <span class="strong"><strong>We take it</strong></span> for granted that we can
4482 go back to see what we remember reading. Think about newspapers. If
4483 you wanted to study the reaction of your hometown newspaper to the
4484 race riots in Watts in 1965, or to Bull Connor's water cannon in 1963,
4485 you could go to your public library and look at the newspapers. Those
4486 papers probably exist on microfiche. If you're lucky, they exist in
4487 paper, too. Either way, you are free, using a library, to go back and
4488 remember&#8212;not just what it is convenient to remember, but
4489 remember something close to the truth.
4490 </p><p>
4491 It is said that those who fail to remember history are doomed to
4492 repeat it. That's not quite correct. We <span class="emphasis"><em>all</em></span>
4493 forget history. The key is whether we have a way to go back to
4494 rediscover what we forget. More directly, the key is whether an
4495 objective past can keep us honest. Libraries help do that, by
4496 collecting content and keeping it, for schoolchildren, for
4497 researchers, for grandma. A free society presumes this knowedge.
4498 </p><p>
4499 The Internet was an exception to this presumption. Until the Internet
4500 Archive, there was no way to go back. The Internet was the
4501 quintessentially transitory medium. And yet, as it becomes more
4502 important in forming and reforming society, it becomes more and more
4503
4504 important to maintain in some historical form. It's just bizarre to
4505 think that we have scads of archives of newspapers from tiny towns
4506 around the world, yet there is but one copy of the Internet&#8212;the
4507 one kept by the Internet Archive.
4508 </p><p>
4509 Brewster Kahle is the founder of the Internet Archive. He was a very
4510 successful Internet entrepreneur after he was a successful computer
4511 researcher.  In the 1990s, Kahle decided he had had enough business
4512 success.  It was time to become a different kind of success. So he
4513 launched a series of projects designed to archive human knowledge. The
4514 Internet Archive was just the first of the projects of this Andrew
4515 Carnegie of the Internet. By December of 2002, the archive had over 10
4516 billion pages, and it was growing at about a billion pages a month.
4517 </p><a class="indexterm" name="idp8362784"></a><a class="indexterm" name="idp8363536"></a><a class="indexterm" name="idp8364320"></a><a class="indexterm" name="idp8365136"></a><a class="indexterm" name="idp8365952"></a><a class="indexterm" name="idxnewscoverage2"></a><p>
4518 The Way Back Machine is the largest archive of human knowledge in
4519 human history. At the end of 2002, it held <span class="quote">«<span class="quote">two hundred and thirty
4520 terabytes of material</span>»</span>&#8212;and was <span class="quote">«<span class="quote">ten times larger than the
4521 Library of Congress.</span>»</span> And this was just the first of the archives that
4522 Kahle set out to build. In addition to the Internet Archive, Kahle has
4523 been constructing the Television Archive. Television, it turns out, is
4524 even more ephemeral than the Internet. While much of twentieth-century
4525 culture was constructed through television, only a tiny proportion of
4526 that culture is available for anyone to see today. Three hours of news
4527 are recorded each evening by Vanderbilt University&#8212;thanks to a
4528 specific exemption in the copyright law. That content is indexed, and
4529 is available to scholars for a very low fee. <span class="quote">«<span class="quote">But other than that,
4530 [television] is almost unavailable,</span>»</span> Kahle told me. <span class="quote">«<span class="quote">If you were
4531 Barbara Walters you could get access to [the archives], but if you are
4532 just a graduate student?</span>»</span> As Kahle put it,
4533 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idp8371968"></a><a class="indexterm" name="idp8372784"></a><p>
4534 Do you remember when Dan Quayle was interacting with Murphy Brown?
4535 Remember that back and forth surreal experience of a politician
4536 interacting with a fictional television character? If you were a
4537 graduate student wanting to study that, and you wanted to get those
4538 original back and forth exchanges between the two, the
4539
4540
4541 <em class="citetitle">60 Minutes</em> episode that came out after it &#8230; it would be almost
4542 impossible. &#8230; Those materials are almost unfindable. &#8230;
4543 </p></blockquote></div><a class="indexterm" name="idp8375360"></a><p>
4544 Why is that? Why is it that the part of our culture that is recorded
4545 in newspapers remains perpetually accessible, while the part that is
4546 recorded on videotape is not? How is it that we've created a world
4547 where researchers trying to understand the effect of media on
4548 nineteenthcentury America will have an easier time than researchers
4549 trying to understand the effect of media on twentieth-century America?
4550 </p><p>
4551 In part, this is because of the law. Early in American copyright law,
4552 copyright owners were required to deposit copies of their work in
4553 libraries.  These copies were intended both to facilitate the spread
4554 of knowledge and to assure that a copy of the work would be around
4555 once the copyright expired, so that others might access and copy the
4556 work.
4557 </p><a class="indexterm" name="idp8377984"></a><a class="indexterm" name="idp8378800"></a><p>
4558 These rules applied to film as well. But in 1915, the Library
4559 of Congress made an exception for film. Film could be copyrighted so
4560 long as such deposits were made. But the filmmaker was then allowed to
4561 borrow back the deposits&#8212;for an unlimited time at no cost. In
4562 1915 alone, there were more than 5,475 films deposited and <span class="quote">«<span class="quote">borrowed
4563 back.</span>»</span>  Thus, when the copyrights to films expire, there is no copy
4564 held by any library. The copy exists&#8212;if it exists at
4565 all&#8212;in the library archive of the film company.<a href="#ftn.idp8381024" class="footnote" name="idp8381024"><sup class="footnote">[116]</sup></a>
4566 </p><p>
4567 The same is generally true about television. Television broadcasts
4568 were originally not copyrighted&#8212;there was no way to capture the
4569 broadcasts, so there was no fear of <span class="quote">«<span class="quote">theft.</span>»</span> But as technology enabled
4570 capturing, broadcasters relied increasingly upon the law. The law
4571 required they make a copy of each broadcast for the work to be
4572 <span class="quote">«<span class="quote">copyrighted.</span>»</span>  But those copies were simply kept by the
4573 broadcasters. No library had any right to them; the government didn't
4574 demand them.  The content of this part of American culture is
4575 practically invisible to anyone who would look.
4576 </p><a class="indexterm" name="idp8385520"></a><p>
4577 Kahle was eager to correct this. Before September 11, 2001, he and
4578
4579 his allies had started capturing television. They selected twenty
4580 stations from around the world and hit the Record button. After
4581 September 11, Kahle, working with dozens of others, selected twenty
4582 stations from around the world and, beginning October 11, 2001, made
4583 their coverage during the week of September 11 available free on-line.
4584 Anyone could see how news reports from around the world covered the
4585 events of that day.
4586 </p><a class="indexterm" name="idp8387488"></a><a class="indexterm" name="idp8388272"></a><a class="indexterm" name="idp8389376"></a><a class="indexterm" name="idp8390640"></a><a class="indexterm" name="idp8391744"></a><a class="indexterm" name="idp8392560"></a><a class="indexterm" name="idp8393376"></a><a class="indexterm" name="idp8394192"></a><p>
4587 Kahle had the same idea with film. Working with Rick Prelinger, whose
4588 archive of film includes close to 45,000 <span class="quote">«<span class="quote">ephemeral films</span>»</span> (meaning
4589 films other than Hollywood movies, films that were never copyrighted),
4590 Kahle established the Movie Archive. Prelinger let Kahle digitize
4591 1,300 films in this archive and post those films on the Internet to be
4592 downloaded for free. Prelinger's is a for-profit company. It sells
4593 copies of these films as stock footage. What he has discovered is that
4594 after he made a significant chunk available for free, his stock
4595 footage sales went up dramatically. People could easily find the
4596 material they wanted to use. Some downloaded that material and made
4597 films on their own. Others purchased copies to enable other films to
4598 be made.  Either way, the archive enabled access to this important
4599 part of our culture.  Want to see a copy of the <span class="quote">«<span class="quote">Duck and Cover</span>»</span> film
4600 that instructed children how to save themselves in the middle of
4601 nuclear attack? Go to archive.org, and you can download the film in a
4602 few minutes&#8212;for free.
4603 </p><p>
4604 Here again, Kahle is providing access to a part of our culture that we
4605 otherwise could not get easily, if at all. It is yet another part of
4606 what defines the twentieth century that we have lost to history. The
4607 law doesn't require these copies to be kept by anyone, or to be
4608 deposited in an archive by anyone. Therefore, there is no simple way
4609 to find them.
4610 </p><p>
4611 The key here is access, not price. Kahle wants to enable free access
4612 to this content, but he also wants to enable others to sell access to
4613 it. His aim is to ensure competition in access to this important part
4614 of our culture.  Not during the commercial life of a bit of creative
4615 property, but during a second life that all creative property
4616 has&#8212;a noncommercial life.
4617 </p><p>
4618 For here is an idea that we should more clearly recognize. Every bit
4619 of creative property goes through different <span class="quote">«<span class="quote">lives.</span>»</span> In its first
4620 life, if the
4621
4622
4623 creator is lucky, the content is sold. In such cases the commercial
4624 market is successful for the creator. The vast majority of creative
4625 property doesn't enjoy such success, but some clearly does. For that
4626 content, commercial life is extremely important. Without this
4627 commercial market, there would be, many argue, much less creativity.
4628 </p><p>
4629 After the commercial life of creative property has ended, our
4630 tradition has always supported a second life as well. A newspaper
4631 delivers the news every day to the doorsteps of America. The very next
4632 day, it is used to wrap fish or to fill boxes with fragile gifts or to
4633 build an archive of knowledge about our history. In this second life,
4634 the content can continue to inform even if that information is no
4635 longer sold.
4636 </p><a class="indexterm" name="idp8401264"></a><p>
4637 The same has always been true about books. A book goes out of print
4638 very quickly (the average today is after about a year<a href="#ftn.idp8402736" class="footnote" name="idp8402736"><sup class="footnote">[117]</sup></a>). After
4639 it is out of print, it can be sold in used book stores without the
4640 copyright owner getting anything and stored in libraries, where many
4641 get to read the book, also for free. Used book stores and libraries
4642 are thus the second life of a book. That second life is extremely
4643 important to the spread and stability of culture.
4644 </p><p>
4645 Yet increasingly, any assumption about a stable second life for
4646 creative property does not hold true with the most important
4647 components of popular culture in the twentieth and twenty-first
4648 centuries. For these&#8212;television, movies, music, radio, the
4649 Internet&#8212;there is no guarantee of a second life. For these sorts
4650 of culture, it is as if we've replaced libraries with Barnes &amp;
4651 Noble superstores. With this culture, what's accessible is nothing but
4652 what a certain limited market demands.  Beyond that, culture
4653 disappears.
4654 </p><p>
4655 <span class="strong"><strong>For most of</strong></span> the twentieth century,
4656 it was economics that made this so. It would have been insanely
4657 expensive to collect and make accessible all television and film and
4658 music: The cost of analog copies is extraordinarily high. So even
4659 though the law in principle would have restricted the ability of a
4660 Brewster Kahle to copy culture generally, the
4661
4662 real restriction was economics. The market made it impossibly
4663 difficult to do anything about this ephemeral culture; the law had
4664 little practical effect.
4665 </p><p>
4666 Perhaps the single most important feature of the digital revolution is
4667 that for the first time since the Library of Alexandria, it is
4668 feasible to imagine constructing archives that hold all culture
4669 produced or distributed publicly. Technology makes it possible to
4670 imagine an archive of all books published, and increasingly makes it
4671 possible to imagine an archive of all moving images and sound.
4672 </p><p>
4673 The scale of this potential archive is something we've never imagined
4674 before. The Brewster Kahles of our history have dreamed about it; but
4675 we are for the first time at a point where that dream is possible. As
4676 Kahle describes,
4677 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idp8411952"></a><p>
4678 It looks like there's about two to three million recordings of music.
4679 Ever. There are about a hundred thousand theatrical releases of
4680 movies, &#8230; and about one to two million movies [distributed] during
4681 the twentieth century. There are about twenty-six million different
4682 titles of books. All of these would fit on computers that would fit in
4683 this room and be able to be afforded by a small company.  So we're at
4684 a turning point in our history. Universal access is the goal. And the
4685 opportunity of leading a different life, based on this, is
4686 &#8230; thrilling. It could be one of the things humankind would be most
4687 proud of. Up there with the Library of Alexandria, putting a man on
4688 the moon, and the invention of the printing press.
4689 </p></blockquote></div><a class="indexterm" name="idp8414352"></a><p>
4690 Kahle is not the only librarian. The Internet Archive is not the only
4691 archive. But Kahle and the Internet Archive suggest what the future of
4692 libraries or archives could be. <span class="emphasis"><em>When</em></span> the
4693 commercial life of creative property ends, I don't know. But it
4694 does. And whenever it does, Kahle and his archive hint at a world
4695 where this knowledge, and culture, remains perpetually available. Some
4696 will draw upon it to understand it;
4697
4698 some to criticize it. Some will use it, as Walt Disney did, to
4699 re-create the past for the future. These technologies promise
4700 something that had become unimaginable for much of our past&#8212;a
4701 future <span class="emphasis"><em>for</em></span> our past. The technology of digital
4702 arts could make the dream of the Library of Alexandria real again.
4703 </p><p>
4704 Technologists have thus removed the economic costs of building such an
4705 archive. But lawyers' costs remain. For as much as we might like to
4706 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,
4707 the <span class="quote">«<span class="quote">content</span>»</span> that is collected in these digital spaces is also
4708 someone's <span class="quote">«<span class="quote">property.</span>»</span> And the law of property restricts the freedoms
4709 that Kahle and others would exercise.
4710 </p><a class="indexterm" name="idp8419872"></a><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8353056" class="footnote"><p><a href="#idp8353056" class="para"><sup class="para">[115] </sup></a>
4711
4712 <a class="indexterm" name="idp8353792"></a>
4713 <a class="indexterm" name="idp8354576"></a>
4714 The temptations remain, however. Brewster Kahle reports that the White
4715 House changes its own press releases without notice. A May 13, 2003,
4716 press release stated, <span class="quote">«<span class="quote">Combat Operations in Iraq Have Ended.</span>»</span> That was
4717 later changed, without notice, to <span class="quote">«<span class="quote">Major Combat Operations in Iraq
4718 Have Ended.</span>»</span>  E-mail from Brewster Kahle, 1 December 2003.
4719 </p></div><div id="ftn.idp8381024" class="footnote"><p><a href="#idp8381024" class="para"><sup class="para">[116] </sup></a>
4720
4721 Doug Herrick, <span class="quote">«<span class="quote">Toward a National Film Collection: Motion Pictures at
4722 the Library of Congress,</span>»</span> <em class="citetitle">Film Library Quarterly</em> 13 nos. 2&#8211;3
4723 (1980): 5; Anthony Slide, <em class="citetitle">Nitrate Won't Wait: A History of Film
4724 Preservation in the United States</em> (Jefferson, N.C.: McFarland &amp;
4725 Co., 1992), 36.
4726 </p></div><div id="ftn.idp8402736" class="footnote"><p><a href="#idp8402736" class="para"><sup class="para">[117] </sup></a>
4727
4728 <a class="indexterm" name="idp8403472"></a>
4729 Dave Barns, <span class="quote">«<span class="quote">Fledgling Career in Antique Books: Woodstock Landlord,
4730 Bar Owner Starts a New Chapter by Adopting Business,</span>»</span> <em class="citetitle">Chicago Tribune</em>,
4731 5 September 1997, at Metro Lake 1L. Of books published between 1927
4732 and 1946, only 2.2 percent were in print in 2002. R. Anthony Reese,
4733 <span class="quote">«<span class="quote">The First Sale Doctrine in the Era of Digital Networks,</span>»</span> <em class="citetitle">Boston
4734 College Law Review</em> 44 (2003): 593 n. 51.
4735 </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="idp8423248"></a><a class="indexterm" name="idp8424064"></a><p>
4736 <span class="strong"><strong>Jack Valenti</strong></span> has been the president
4737 of the Motion Picture Association of America since 1966. He first came
4738 to Washington, D.C., with Lyndon Johnson's
4739 administration&#8212;literally. The famous picture of Johnson's
4740 swearing-in on Air Force One after the assassination of President
4741 Kennedy has Valenti in the background. In his almost forty years of
4742 running the MPAA, Valenti has established himself as perhaps the most
4743 prominent and effective lobbyist in Washington.
4744 </p><a class="indexterm" name="idp8425824"></a><a class="indexterm" name="idp8427248"></a><a class="indexterm" name="idp8428080"></a><a class="indexterm" name="idp8428864"></a><a class="indexterm" name="idp8429680"></a><a class="indexterm" name="idp8430496"></a><a class="indexterm" name="idp8431312"></a><p>
4745 The MPAA is the American branch of the international Motion Picture
4746 Association. It was formed in 1922 as a trade association whose goal
4747 was to defend American movies against increasing domestic criticism.
4748 The organization now represents not only filmmakers but producers and
4749 distributors of entertainment for television, video, and cable. Its
4750 board is made up of the chairmen and presidents of the seven major
4751 producers and distributors of motion picture and television programs
4752 in the United States: Walt Disney, Sony Pictures Entertainment, MGM,
4753 Paramount Pictures, Twentieth Century Fox, Universal Studios, and
4754 Warner Brothers.
4755 </p><p>
4756
4757 Valenti is only the third president of the MPAA. No president before
4758 him has had as much influence over that organization, or over
4759 Washington. As a Texan, Valenti has mastered the single most important
4760 political skill of a Southerner&#8212;the ability to appear simple and
4761 slow while hiding a lightning-fast intellect. To this day, Valenti
4762 plays the simple, humble man. But this Harvard MBA, and author of four
4763 books, who finished high school at the age of fifteen and flew more
4764 than fifty combat missions in World War II, is no Mr. Smith. When
4765 Valenti went to Washington, he mastered the city in a quintessentially
4766 Washingtonian way.
4767 </p><p>
4768 In defending artistic liberty and the freedom of speech that our
4769 culture depends upon, the MPAA has done important good. In crafting
4770 the MPAA rating system, it has probably avoided a great deal of
4771 speech-regulating harm. But there is an aspect to the organization's
4772 mission that is both the most radical and the most important. This is
4773 the organization's effort, epitomized in Valenti's every act, to
4774 redefine the meaning of <span class="quote">«<span class="quote">creative property.</span>»</span>
4775 </p><p>
4776 In 1982, Valenti's testimony to Congress captured the strategy
4777 perfectly:
4778 </p><div class="blockquote"><blockquote class="blockquote"><p>
4779 No matter the lengthy arguments made, no matter the charges and the
4780 counter-charges, no matter the tumult and the shouting, reasonable men
4781 and women will keep returning to the fundamental issue, the central
4782 theme which animates this entire debate: <span class="emphasis"><em>Creative property
4783 owners must be accorded the same rights and protection resident in all
4784 other property owners in the nation</em></span>. That is the issue.
4785 That is the question. And that is the rostrum on which this entire
4786 hearing and the debates to follow must rest.<a href="#ftn.idp8437712" class="footnote" name="idp8437712"><sup class="footnote">[118]</sup></a>
4787 </p></blockquote></div><p>
4788 The strategy of this rhetoric, like the strategy of most of Valenti's
4789 rhetoric, is brilliant and simple and brilliant because simple. The
4790 <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
4791 this:
4792
4793 <span class="quote">«<span class="quote">Creative property owners must be accorded the same rights and
4794 protections resident in all other property owners in the nation.</span>»</span>
4795 There are no second-class citizens, Valenti might have
4796 continued. There should be no second-class property owners.
4797 </p><p>
4798 This claim has an obvious and powerful intuitive pull. It is stated
4799 with such clarity as to make the idea as obvious as the notion that we
4800 use elections to pick presidents. But in fact, there is no more
4801 extreme a claim made by <span class="emphasis"><em>anyone</em></span> who is serious in
4802 this debate than this claim of Valenti's. Jack Valenti, however sweet
4803 and however brilliant, is perhaps the nation's foremost extremist when
4804 it comes to the nature and scope of <span class="quote">«<span class="quote">creative property.</span>»</span> His views
4805 have <span class="emphasis"><em>no</em></span> reasonable connection to our actual legal
4806 tradition, even if the subtle pull of his Texan charm has slowly
4807 redefined that tradition, at least in Washington.
4808 </p><p>
4809 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
4810 precise sense that lawyers are trained to understand,<a href="#ftn.idp8445088" class="footnote" name="idp8445088"><sup class="footnote">[119]</sup></a> it has never been the case, nor should it be, that
4811 <span class="quote">«<span class="quote">creative property owners</span>»</span> have been <span class="quote">«<span class="quote">accorded the same rights and
4812 protection resident in all other property owners.</span>»</span> Indeed, if creative
4813 property owners were given the same rights as all other property
4814 owners, that would effect a radical, and radically undesirable, change
4815 in our tradition.
4816 </p><p>
4817 Valenti knows this. But he speaks for an industry that cares squat for
4818 our tradition and the values it represents. He speaks for an industry
4819 that is instead fighting to restore the tradition that the British
4820 overturned in 1710. In the world that Valenti's changes would create,
4821 a powerful few would exercise powerful control over how our creative
4822 culture would develop.
4823 </p><p>
4824 I have two purposes in this chapter. The first is to convince you
4825 that, historically, Valenti's claim is absolutely wrong. The second is
4826 to convince you that it would be terribly wrong for us to reject our
4827 history.  We have always treated rights in creative property
4828 differently from the rights resident in all other property
4829 owners. They have never been the same. And they should never be the
4830 same, because, however counterintuitive this may seem, to make them
4831 the same would be to
4832
4833
4834 fundamentally weaken the opportunity for new creators to create.
4835 Creativity depends upon the owners of creativity having less than
4836 perfect control.
4837 </p><p>
4838 Organizations such as the MPAA, whose board includes the most powerful
4839 of the old guard, have little interest, their rhetoric
4840 notwithstanding, in assuring that the new can displace them. No
4841 organization does. No person does. (Ask me about tenure, for example.)
4842 But what's good for the MPAA is not necessarily good for America. A
4843 society that defends the ideals of free culture must preserve
4844 precisely the opportunity for new creativity to threaten the old.
4845 </p><p>
4846 <span class="strong"><strong>To get</strong></span> just a hint that there is
4847 something fundamentally wrong in Valenti's argument, we need look no
4848 further than the United States Constitution itself.
4849 </p><p>
4850 The framers of our Constitution loved <span class="quote">«<span class="quote">property.</span>»</span> Indeed, so strongly
4851 did they love property that they built into the Constitution an
4852 important requirement. If the government takes your property&#8212;if
4853 it condemns your house, or acquires a slice of land from your
4854 farm&#8212;it is required, under the Fifth Amendment's <span class="quote">«<span class="quote">Takings
4855 Clause,</span>»</span> to pay you <span class="quote">«<span class="quote">just compensation</span>»</span> for that taking. The
4856 Constitution thus guarantees that property is, in a certain sense,
4857 sacred. It cannot <span class="emphasis"><em>ever</em></span> be taken from the property
4858 owner unless the government pays for the privilege.
4859 </p><p>
4860 Yet the very same Constitution speaks very differently about what
4861 Valenti calls <span class="quote">«<span class="quote">creative property.</span>»</span> In the clause granting Congress the
4862 power to create <span class="quote">«<span class="quote">creative property,</span>»</span> the Constitution
4863 <span class="emphasis"><em>requires</em></span> that after a <span class="quote">«<span class="quote">limited time,</span>»</span> Congress
4864 take back the rights that it has granted and set the <span class="quote">«<span class="quote">creative
4865 property</span>»</span> free to the public domain. Yet when Congress does this, when
4866 the expiration of a copyright term <span class="quote">«<span class="quote">takes</span>»</span> your copyright and turns it
4867 over to the public domain, Congress does not have any obligation to
4868 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
4869 Constitution that requires compensation for your land
4870
4871 requires that you lose your <span class="quote">«<span class="quote">creative property</span>»</span> right without any
4872 compensation at all.
4873 </p><p>
4874 The Constitution thus on its face states that these two forms of
4875 property are not to be accorded the same rights. They are plainly to
4876 be treated differently. Valenti is therefore not just asking for a
4877 change in our tradition when he argues that creative-property owners
4878 should be accorded the same rights as every other property-right
4879 owner. He is effectively arguing for a change in our Constitution
4880 itself.
4881 </p><a class="indexterm" name="idxjeffersonthomas"></a><p>
4882 Arguing for a change in our Constitution is not necessarily wrong.
4883 There was much in our original Constitution that was plainly wrong.
4884 The Constitution of 1789 entrenched slavery; it left senators to be
4885 appointed rather than elected; it made it possible for the electoral
4886 college to produce a tie between the president and his own vice
4887 president (as it did in 1800). The framers were no doubt
4888 extraordinary, but I would be the first to admit that they made big
4889 mistakes. We have since rejected some of those mistakes; no doubt
4890 there could be others that we should reject as well. So my argument is
4891 not simply that because Jefferson did it, we should, too.
4892 </p><p>
4893 Instead, my argument is that because Jefferson did it, we should at
4894 least try to understand <span class="emphasis"><em>why</em></span>. Why did the framers,
4895 fanatical property types that they were, reject the claim that
4896 creative property be given the same rights as all other property? Why
4897 did they require that for creative property there must be a public
4898 domain?
4899 </p><a class="indexterm" name="idp8466384"></a><p>
4900 To answer this question, we need to get some perspective on the
4901 history of these <span class="quote">«<span class="quote">creative property</span>»</span> rights, and the control that they
4902 enabled.  Once we see clearly how differently these rights have been
4903 defined, we will be in a better position to ask the question that
4904 should be at the core of this war: Not <span class="emphasis"><em>whether</em></span>
4905 creative property should be protected, but how. Not
4906 <span class="emphasis"><em>whether</em></span> we will enforce the rights the law gives
4907 to creative-property owners, but what the particular mix of rights
4908 ought to be. Not <span class="emphasis"><em>whether</em></span> artists should be paid,
4909 but whether institutions designed to assure that artists get paid need
4910 also control how culture develops.
4911 </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>
4912
4913
4914 To answer these questions, we need a more general way to talk about
4915 how property is protected. More precisely, we need a more general way
4916 than the narrow language of the law allows. In <em class="citetitle">Code and Other Laws of
4917 Cyberspace</em>, I used a simple model to capture this more general
4918 perspective. For any particular right or regulation, this model asks
4919 how four different modalities of regulation interact to support or
4920 weaken the right or regulation. I represented it with this diagram:
4921 </p><div class="figure"><a name="fig-1331"></a><p class="title"><b>Figure 10.1. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1331.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8481840"></a><p>
4922 At the center of this picture is a regulated dot: the individual or
4923 group that is the target of regulation, or the holder of a right. (In
4924 each case throughout, we can describe this either as regulation or as
4925 a right.  For simplicity's sake, I will speak only of regulations.)
4926 The ovals represent four ways in which the individual or group might
4927 be regulated&#8212; either constrained or, alternatively, enabled. Law
4928 is the most obvious constraint (to lawyers, at least). It constrains
4929 by threatening punishments after the fact if the rules set in advance
4930 are violated. So if, for example, you willfully infringe Madonna's
4931 copyright by copying a song from her latest CD and posting it on the
4932 Web, you can be punished
4933
4934 with a $150,000 fine. The fine is an ex post punishment for violating
4935 an ex ante rule. It is imposed by the state.
4936 <a class="indexterm" name="idp8484176"></a>
4937 </p><a class="indexterm" name="idp8485056"></a><p>
4938 Norms are a different kind of constraint. They, too, punish an
4939 individual for violating a rule. But the punishment of a norm is
4940 imposed by a community, not (or not only) by the state. There may be
4941 no law against spitting, but that doesn't mean you won't be punished
4942 if you spit on the ground while standing in line at a movie. The
4943 punishment might not be harsh, though depending upon the community, it
4944 could easily be more harsh than many of the punishments imposed by the
4945 state. The mark of the difference is not the severity of the rule, but
4946 the source of the enforcement.
4947 </p><a class="indexterm" name="idxmarketconstraints"></a><p>
4948 The market is a third type of constraint. Its constraint is effected
4949 through conditions: You can do X if you pay Y; you'll be paid M if you
4950 do N. These constraints are obviously not independent of law or
4951 norms&#8212;it is property law that defines what must be bought if it
4952 is to be taken legally; it is norms that say what is appropriately
4953 sold. But given a set of norms, and a background of property and
4954 contract law, the market imposes a simultaneous constraint upon how an
4955 individual or group might behave.
4956 </p><a class="indexterm" name="idp8488608"></a><p>
4957 Finally, and for the moment, perhaps, most mysteriously,
4958 <span class="quote">«<span class="quote">architecture</span>»</span>&#8212;the physical world as one finds it&#8212;is a
4959 constraint on behavior.  A fallen bridge might constrain your ability
4960 to get across a river. Railroad tracks might constrain the ability of
4961 a community to integrate its social life. As with the market,
4962 architecture does not effect its constraint through ex post
4963 punishments. Instead, also as with the market, architecture effects
4964 its constraint through simultaneous conditions. These conditions are
4965 imposed not by courts enforcing contracts, or by police punishing
4966 theft, but by nature, by <span class="quote">«<span class="quote">architecture.</span>»</span>  If a 500-pound boulder
4967 blocks your way, it is the law of gravity that enforces this
4968 constraint. If a $500 airplane ticket stands between you and a flight
4969 to New York, it is the market that enforces this constraint.
4970 </p><a class="indexterm" name="idp8492240"></a><a class="indexterm" name="idp8493632"></a><a class="indexterm" name="idp8494960"></a><a class="indexterm" name="idxlawasconstraintmodality2"></a><p>
4971
4972
4973 So the first point about these four modalities of regulation is
4974 obvious: They interact. Restrictions imposed by one might be
4975 reinforced by another. Or restrictions imposed by one might be
4976 undermined by another.
4977 </p><p>
4978 The second point follows directly: If we want to understand the
4979 effective freedom that anyone has at a given moment to do any
4980 particular thing, we have to consider how these four modalities
4981 interact.  Whether or not there are other constraints (there may well
4982 be; my claim is not about comprehensiveness), these four are among the
4983 most significant, and any regulator (whether controlling or freeing)
4984 must consider how these four in particular interact.
4985 </p><a class="indexterm" name="idp8499936"></a><a class="indexterm" name="idp8500752"></a><a class="indexterm" name="idp8501568"></a><a class="indexterm" name="idxdrivingspeedconstraintson"></a><a class="indexterm" name="idxspeedingconstraintson"></a><p>
4986 So, for example, consider the <span class="quote">«<span class="quote">freedom</span>»</span> to drive a car at a high
4987 speed. That freedom is in part restricted by laws: speed limits that
4988 say how fast you can drive in particular places at particular
4989 times. It is in part restricted by architecture: speed bumps, for
4990 example, slow most rational drivers; governors in buses, as another
4991 example, set the maximum rate at which the driver can drive. The
4992 freedom is in part restricted by the market: Fuel efficiency drops as
4993 speed increases, thus the price of gasoline indirectly constrains
4994 speed. And finally, the norms of a community may or may not constrain
4995 the freedom to speed. Drive at 50 mph by a school in your own
4996 neighborhood and you're likely to be punished by the neighbors. The
4997 same norm wouldn't be as effective in a different town, or at night.
4998 </p><p>
4999 The final point about this simple model should also be fairly clear:
5000 While these four modalities are analytically independent, law has a
5001 special role in affecting the three.<a href="#ftn.idp8507600" class="footnote" name="idp8507600"><sup class="footnote">[120]</sup></a>
5002 The law, in other words, sometimes operates to increase or decrease
5003 the constraint of a particular modality.  Thus, the law might be used
5004 to increase taxes on gasoline, so as to increase the incentives to
5005 drive more slowly. The law might be used to mandate more speed bumps,
5006 so as to increase the difficulty of driving rapidly. The law might be
5007 used to fund ads that stigmatize reckless driving. Or the law might be
5008 used to require that other laws be more
5009
5010 strict&#8212;a federal requirement that states decrease the speed
5011 limit, for example&#8212;so as to decrease the attractiveness of fast
5012 driving.
5013 </p><a class="indexterm" name="idp8511296"></a><a class="indexterm" name="idp8512624"></a><div class="figure"><a name="fig-1361"></a><p class="title"><b>Figure 10.2. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1361.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8516288"></a><p>
5014 These constraints can thus change, and they can be changed. To
5015 understand the effective protection of liberty or protection of
5016 property at any particular moment, we must track these changes over
5017 time. A restriction imposed by one modality might be erased by
5018 another. A freedom enabled by one modality might be displaced by
5019 another.<a href="#ftn.idp8517744" class="footnote" name="idp8517744"><sup class="footnote">[121]</sup></a>
5020 </p><a class="indexterm" name="idp8526496"></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>
5021 The most obvious point that this model reveals is just why, or just
5022 how, Hollywood is right. The copyright warriors have rallied Congress
5023 and the courts to defend copyright. This model helps us see why that
5024 rallying makes sense.
5025 </p><p>
5026 Let's say this is the picture of copyright's regulation before the
5027 Internet:
5028 </p><div class="figure"><a name="fig-1371"></a><p class="title"><b>Figure 10.3. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1331.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idxarchitectureconstrainteffectedthrough"></a><a class="indexterm" name="idp8535872"></a><a class="indexterm" name="idxnormsregulatoryinfluenceof2"></a><p>
5029
5030 There is balance between law, norms, market, and architecture. The law
5031 limits the ability to copy and share content, by imposing penalties on
5032 those who copy and share content. Those penalties are reinforced by
5033 technologies that make it hard to copy and share content
5034 (architecture) and expensive to copy and share content
5035 (market). Finally, those penalties are mitigated by norms we all
5036 recognize&#8212;kids, for example, taping other kids' records. These
5037 uses of copyrighted material may well be infringement, but the norms
5038 of our society (before the Internet, at least) had no problem with
5039 this form of infringement.
5040 </p><a class="indexterm" name="idxinternetcopyrightregulatorybalancelostwith"></a><a class="indexterm" name="idp8541792"></a><a class="indexterm" name="idp8542928"></a><a class="indexterm" name="idp8543744"></a><p>
5041 Enter the Internet, or, more precisely, technologies such as MP3s and
5042 p2p sharing. Now the constraint of architecture changes dramatically,
5043 as does the constraint of the market. And as both the market and
5044 architecture relax the regulation of copyright, norms pile on. The
5045 happy balance (for the warriors, at least) of life before the Internet
5046 becomes an effective state of anarchy after the Internet.
5047 </p><a class="indexterm" name="idp8545360"></a><a class="indexterm" name="idp8546736"></a><a class="indexterm" name="idp8548064"></a><p>
5048 Thus the sense of, and justification for, the warriors' response.
5049 Technology has changed, the warriors say, and the effect of this
5050 change, when ramified through the market and norms, is that a balance
5051 of protection for the copyright owners' rights has been lost. This is
5052 Iraq
5053
5054 after the fall of Saddam, but this time no government is justifying the
5055 looting that results.
5056 </p><div class="figure"><a name="fig-1381"></a><p class="title"><b>Figure 10.4. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1381.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp8552592"></a><a class="indexterm" name="idxregulationasestablishmentprotectionism"></a><p>
5057 Neither this analysis nor the conclusions that follow are new to the
5058 warriors. Indeed, in a <span class="quote">«<span class="quote">White Paper</span>»</span> prepared by the Commerce
5059 Department (one heavily influenced by the copyright warriors) in 1995,
5060 this mix of regulatory modalities had already been identified and the
5061 strategy to respond already mapped. In response to the changes the
5062 Internet had effected, the White Paper argued (1) Congress should
5063 strengthen intellectual property law, (2) businesses should adopt
5064 innovative marketing techniques, (3) technologists should push to
5065 develop code to protect copyrighted material, and (4) educators should
5066 educate kids to better protect copyright.
5067 </p><a class="indexterm" name="idp8556896"></a><a class="indexterm" name="idp8558208"></a><a class="indexterm" name="idp8559536"></a><a class="indexterm" name="idp8560352"></a><p>
5068 This mixed strategy is just what copyright needed&#8212;if it was to
5069 preserve the particular balance that existed before the change induced
5070 by the Internet. And it's just what we should expect the content
5071 industry to push for. It is as American as apple pie to consider the
5072 happy life you have as an entitlement, and to look to the law to
5073 protect it if something comes along to change that happy
5074 life. Homeowners living in a
5075
5076
5077 flood plain have no hesitation appealing to the government to rebuild
5078 (and rebuild again) when a flood (architecture) wipes away their
5079 property (law). Farmers have no hesitation appealing to the government
5080 to bail them out when a virus (architecture) devastates their
5081 crop. Unions have no hesitation appealing to the government to bail
5082 them out when imports (market) wipe out the U.S. steel industry.
5083 </p><a class="indexterm" name="idp8562784"></a><a class="indexterm" name="idp8564032"></a><a class="indexterm" name="idp8565360"></a><p>
5084 Thus, there's nothing wrong or surprising in the content industry's
5085 campaign to protect itself from the harmful consequences of a
5086 technological innovation. And I would be the last person to argue that
5087 the changing technology of the Internet has not had a profound effect
5088 on the content industry's way of doing business, or as John Seely
5089 Brown describes it, its <span class="quote">«<span class="quote">architecture of revenue.</span>»</span>
5090 </p><a class="indexterm" name="idp8567376"></a><a class="indexterm" name="idp8568192"></a><a class="indexterm" name="idp8569296"></a><a class="indexterm" name="idp8570112"></a><a class="indexterm" name="idp8570928"></a><a class="indexterm" name="idp8571744"></a><a class="indexterm" name="idp8572560"></a><a class="indexterm" name="idp8573376"></a><p>
5091 But just because a particular interest asks for government support, it
5092 doesn't follow that support should be granted. And just because
5093 technology has weakened a particular way of doing business, it doesn't
5094 follow that the government should intervene to support that old way of
5095 doing business. Kodak, for example, has lost perhaps as much as 20
5096 percent of their traditional film market to the emerging technologies
5097 of digital cameras.<a href="#ftn.idp8574896" class="footnote" name="idp8574896"><sup class="footnote">[122]</sup></a>
5098
5099 Does anyone believe the government should ban digital cameras just to
5100 support Kodak? Highways have weakened the freight business for
5101 railroads. Does anyone think we should ban trucks from roads
5102 <span class="emphasis"><em>for the purpose of</em></span> protecting the railroads?
5103 Closer to the subject of this book, remote channel changers have
5104 weakened the <span class="quote">«<span class="quote">stickiness</span>»</span> of television advertising (if a boring
5105 commercial comes on the TV, the remote makes it easy to surf), and it
5106 may well be that this change has weakened the television advertising
5107 market. But does anyone believe we should regulate remotes to
5108 reinforce commercial television?  (Maybe by limiting them to function
5109 only once a second, or to switch to only ten channels within an hour?)
5110 </p><a class="indexterm" name="idxfreemarkettechnologicalchangesin"></a><a class="indexterm" name="idp8581536"></a><a class="indexterm" name="idp8582352"></a><a class="indexterm" name="idp8583168"></a><a class="indexterm" name="idp8584272"></a><a class="indexterm" name="idp8585088"></a><a class="indexterm" name="idp8585904"></a><p>
5111 The obvious answer to these obviously rhetorical questions is no.
5112 In a free society, with a free market, supported by free enterprise and
5113 free trade, the government's role is not to support one way of doing
5114
5115 business against others. Its role is not to pick winners and protect
5116 them against loss. If the government did this generally, then we would
5117 never have any progress. As Microsoft chairman Bill Gates wrote in
5118 1991, in a memo criticizing software patents, <span class="quote">«<span class="quote">established companies
5119 have an interest in excluding future competitors.</span>»</span><a href="#ftn.idp8588096" class="footnote" name="idp8588096"><sup class="footnote">[123]</sup></a>
5120 And relative to a
5121 startup, established companies also have the means. (Think RCA and
5122 FM radio.) A world in which competitors with new ideas must fight
5123 not only the market but also the government is a world in which
5124 competitors with new ideas will not succeed. It is a world of stasis and
5125 increasingly concentrated stagnation. It is the Soviet Union under
5126 Brezhnev.
5127 </p><p>
5128 Thus, while it is understandable for industries threatened with new
5129 technologies that change the way they do business to look to the
5130 government for protection, it is the special duty of policy makers to
5131 guarantee that that protection not become a deterrent to progress. It
5132 is the duty of policy makers, in other words, to assure that the
5133 changes they create, in response to the request of those hurt by
5134 changing technology, are changes that preserve the incentives and
5135 opportunities for innovation and change.
5136 </p><a class="indexterm" name="idp8590848"></a><a class="indexterm" name="idp8591920"></a><a class="indexterm" name="idp8592736"></a><p>
5137 In the context of laws regulating speech&#8212;which include,
5138 obviously, copyright law&#8212;that duty is even stronger. When the
5139 industry complaining about changing technologies is asking Congress to
5140 respond in a way that burdens speech and creativity, policy makers
5141 should be especially wary of the request. It is always a bad deal for
5142 the government to get into the business of regulating speech
5143 markets. The risks and dangers of that game are precisely why our
5144 framers created the First Amendment to our Constitution: <span class="quote">«<span class="quote">Congress
5145 shall make no law &#8230;  abridging the freedom of speech.</span>»</span> So when
5146 Congress is being asked to pass laws that would <span class="quote">«<span class="quote">abridge</span>»</span> the freedom
5147 of speech, it should ask&#8212; carefully&#8212;whether such
5148 regulation is justified.
5149 </p><a class="indexterm" name="idp8595984"></a><a class="indexterm" name="idp8597280"></a><p>
5150 My argument just now, however, has nothing to do with whether
5151
5152 the changes that are being pushed by the copyright warriors are
5153 <span class="quote">«<span class="quote">justified.</span>»</span>  My argument is about their effect. For before we get to
5154 the question of justification, a hard question that depends a great
5155 deal upon your values, we should first ask whether we understand the
5156 effect of the changes the content industry wants.
5157 </p><p>
5158 Here's the metaphor that will capture the argument to follow.
5159 </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>
5160 In 1873, the chemical DDT was first synthesized. In 1948, Swiss
5161 chemist Paul Hermann Müller won the Nobel Prize for his work
5162 demonstrating the insecticidal properties of DDT. By the 1950s, the
5163 insecticide was widely used around the world to kill disease-carrying
5164 pests. It was also used to increase farm production.
5165 </p><p>
5166 No one doubts that killing disease-carrying pests or increasing crop
5167 production is a good thing. No one doubts that the work of Müller was
5168 important and valuable and probably saved lives, possibly millions.
5169 </p><a class="indexterm" name="idp8608560"></a><a class="indexterm" name="idp8609376"></a><a class="indexterm" name="idxenvironmentalism"></a><p>
5170 But in 1962, Rachel Carson published <em class="citetitle">Silent Spring</em>, which argued that
5171 DDT, whatever its primary benefits, was also having unintended
5172 environmental consequences. Birds were losing the ability to
5173 reproduce.  Whole chains of the ecology were being destroyed.
5174 </p><p>
5175 No one set out to destroy the environment. Paul Müller certainly did
5176 not aim to harm any birds. But the effort to solve one set of problems
5177 produced another set which, in the view of some, was far worse than
5178 the problems that were originally attacked. Or more accurately, the
5179 problems DDT caused were worse than the problems it solved, at least
5180 when considering the other, more environmentally friendly ways to
5181 solve the problems that DDT was meant to solve.
5182 </p><a class="indexterm" name="idp8613872"></a><a class="indexterm" name="idp8615120"></a><a class="indexterm" name="idxcopyrightlawinnovativefreedombalancedwithfaircompensationin2"></a><p>
5183 It is to this image precisely that Duke University law professor James
5184 Boyle appeals when he argues that we need an <span class="quote">«<span class="quote">environmentalism</span>»</span> for
5185 culture.<a href="#ftn.idp8618768" class="footnote" name="idp8618768"><sup class="footnote">[124]</sup></a>
5186 His point, and the point I want to develop in the balance of this
5187 chapter, is not that the aims of copyright are flawed. Or that authors
5188 should not be paid for their work. Or that music should be given away
5189 <span class="quote">«<span class="quote">for free.</span>»</span> The point is that some of the ways in which we might
5190 protect authors will have unintended consequences for the cultural
5191 environment, much like DDT had for the natural environment. And just
5192
5193 as criticism of DDT is not an endorsement of malaria or an attack on
5194 farmers, so, too, is criticism of one particular set of regulations
5195 protecting copyright not an endorsement of anarchy or an attack on
5196 authors.  It is an environment of creativity that we seek, and we
5197 should be aware of our actions' effects on the environment.
5198 </p><a class="indexterm" name="idp8622128"></a><p>
5199 My argument, in the balance of this chapter, tries to map exactly
5200 this effect. No doubt the technology of the Internet has had a dramatic
5201 effect on the ability of copyright owners to protect their content. But
5202 there should also be little doubt that when you add together the
5203 changes in copyright law over time, plus the change in technology that
5204 the Internet is undergoing just now, the net effect of these changes will
5205 not be only that copyrighted work is effectively protected. Also, and
5206 generally missed, the net effect of this massive increase in protection
5207 will be devastating to the environment for creativity.
5208 </p><a class="indexterm" name="idp8624432"></a><p>
5209 In a line: To kill a gnat, we are spraying DDT with consequences
5210 for free culture that will be far more devastating than that this gnat will
5211 be lost.
5212 </p><a class="indexterm" name="idp8626464"></a><a class="indexterm" name="idp8627776"></a><a class="indexterm" name="idp8629216"></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="idp8631616"></a><a class="indexterm" name="idxconstitutionuscopyrightpurposeestablishedin"></a><a class="indexterm" name="idxconstitutionusprogressclauseof"></a><a class="indexterm" name="idp8636416"></a><a class="indexterm" name="idp8637488"></a><a class="indexterm" name="idxcreativepropertyconstitutionaltraditionon2"></a><a class="indexterm" name="idxprogressclause"></a><a class="indexterm" name="idp8642096"></a><p>
5213 America copied English copyright law. Actually, we copied and improved
5214 English copyright law. Our Constitution makes the purpose of <span class="quote">«<span class="quote">creative
5215 property</span>»</span> rights clear; its express limitations reinforce the English
5216 aim to avoid overly powerful publishers.
5217 </p><a class="indexterm" name="idxcongressusinconstitutionalprogressclause"></a><p>
5218 The power to establish <span class="quote">«<span class="quote">creative property</span>»</span> rights is granted to
5219 Congress in a way that, for our Constitution, at least, is very
5220 odd. Article I, section 8, clause 8 of our Constitution states that:
5221 </p><p>
5222 Congress has the power to promote the Progress of Science and
5223 useful Arts, by securing for limited Times to Authors and Inventors
5224 the exclusive Right to their respective Writings and Discoveries.
5225
5226
5227 We can call this the <span class="quote">«<span class="quote">Progress Clause,</span>»</span> for notice what this clause
5228 does not say. It does not say Congress has the power to grant
5229 <span class="quote">«<span class="quote">creative property rights.</span>»</span> It says that Congress has the power
5230 <span class="emphasis"><em>to promote progress</em></span>. The grant of power is its
5231 purpose, and its purpose is a public one, not the purpose of enriching
5232 publishers, nor even primarily the purpose of rewarding authors.
5233 </p><a class="indexterm" name="idp8649792"></a><a class="indexterm" name="idxcopyrightlawasprotectionofcreators"></a><a class="indexterm" name="idxcopyrightlawhistoryofamerican"></a><p>
5234 The Progress Clause expressly limits the term of copyrights. As we saw
5235 in chapter <a class="xref" href="#founders" title="Chapter 6. Chapter Six: Founders">6</a>,
5236 the English limited the term of copyright so as to assure that a few
5237 would not exercise disproportionate control over culture by exercising
5238 disproportionate control over publishing. We can assume the framers
5239 followed the English for a similar purpose. Indeed, unlike the
5240 English, the framers reinforced that objective, by requiring that
5241 copyrights extend <span class="quote">«<span class="quote">to Authors</span>»</span> only.
5242 </p><a class="indexterm" name="idp8657104"></a><a class="indexterm" name="idp8657920"></a><a class="indexterm" name="idp8659040"></a><p>
5243 The design of the Progress Clause reflects something about the
5244 Constitution's design in general. To avoid a problem, the framers
5245 built structure. To prevent the concentrated power of publishers, they
5246 built a structure that kept copyrights away from publishers and kept
5247 them short. To prevent the concentrated power of a church, they banned
5248 the federal government from establishing a church. To prevent
5249 concentrating power in the federal government, they built structures
5250 to reinforce the power of the states&#8212;including the Senate, whose
5251 members were at the time selected by the states, and an electoral
5252 college, also selected by the states, to select the president. In each
5253 case, a <span class="emphasis"><em>structure</em></span> built checks and balances into
5254 the constitutional frame, structured to prevent otherwise inevitable
5255 concentrations of power.
5256 </p><a class="indexterm" name="idp8661504"></a><a class="indexterm" name="idp8662896"></a><p>
5257 I doubt the framers would recognize the regulation we call <span class="quote">«<span class="quote">copyright</span>»</span>
5258 today. The scope of that regulation is far beyond anything they ever
5259 considered. To begin to understand what they did, we need to put our
5260 <span class="quote">«<span class="quote">copyright</span>»</span> in context: We need to see how it has changed in the 210
5261 years since they first struck its design.
5262 </p><a class="indexterm" name="idp8665584"></a><a class="indexterm" name="idp8667024"></a><a class="indexterm" name="idp8668400"></a><a class="indexterm" name="idp8669728"></a><p>
5263 Some of these changes come from the law: some in light of changes
5264 in technology, and some in light of changes in technology given a
5265
5266 particular concentration of market power. In terms of our model, we
5267 started here:
5268 </p><div class="figure"><a name="fig-1441"></a><p class="title"><b>Figure 10.5. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1331.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5269 We will end here:
5270 </p><div class="figure"><a name="fig-1442"></a><p class="title"><b>Figure 10.6. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1442.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5271 Let me explain how.
5272
5273 </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="idp8683888"></a><a class="indexterm" name="idxpublicdomainbalanceofuscontentin"></a><p>
5274 When the first Congress enacted laws to protect creative property, it
5275 faced the same uncertainty about the status of creative property that
5276 the English had confronted in 1774. Many states had passed laws
5277 protecting creative property, and some believed that these laws simply
5278 supplemented common law rights that already protected creative
5279 authorship.<a href="#ftn.idp8687472" class="footnote" name="idp8687472"><sup class="footnote">[125]</sup></a>
5280 This meant that there was no guaranteed public domain in the United
5281 States in 1790. If copyrights were protected by the common law, then
5282 there was no simple way to know whether a work published in the United
5283 States was controlled or free. Just as in England, this lingering
5284 uncertainty would make it hard for publishers to rely upon a public
5285 domain to reprint and distribute works.
5286 </p><a class="indexterm" name="idp8691232"></a><a class="indexterm" name="idxlawfederalvsstate"></a><p>
5287 That uncertainty ended after Congress passed legislation granting
5288 copyrights. Because federal law overrides any contrary state law,
5289 federal protections for copyrighted works displaced any state law
5290 protections.  Just as in England the Statute of Anne eventually meant
5291 that the copyrights for all English works expired, a federal statute
5292 meant that any state copyrights expired as well.
5293 </p><a class="indexterm" name="idxcopyrightrenewabilityof"></a><p>
5294 In 1790, Congress enacted the first copyright law. It created a
5295 federal copyright and secured that copyright for fourteen years. If
5296 the author was alive at the end of that fourteen years, then he could
5297 opt to renew the copyright for another fourteen years. If he did not
5298 renew the copyright, his work passed into the public domain.
5299 </p><a class="indexterm" name="idp8697216"></a><p>
5300 While there were many works created in the United States in the first
5301 ten years of the Republic, only 5 percent of the works were actually
5302 registered under the federal copyright regime. Of all the work created
5303 in the United States both before 1790 and from 1790 through 1800, 95
5304 percent immediately passed into the public domain; the balance would
5305 pass into the pubic domain within twenty-eight years at most, and more
5306 likely within fourteen years.<a href="#ftn.idp8699280" class="footnote" name="idp8699280"><sup class="footnote">[126]</sup></a>
5307 </p><a class="indexterm" name="idp8703456"></a><a class="indexterm" name="idp8704672"></a><p>
5308 This system of renewal was a crucial part of the American system
5309 of copyright. It assured that the maximum terms of copyright would be
5310
5311 granted only for works where they were wanted. After the initial term
5312 of fourteen years, if it wasn't worth it to an author to renew his
5313 copyright, then it wasn't worth it to society to insist on the
5314 copyright, either.
5315 </p><p>
5316 Fourteen years may not seem long to us, but for the vast majority of
5317 copyright owners at that time, it was long enough: Only a small
5318 minority of them renewed their copyright after fourteen years; the
5319 balance allowed their work to pass into the public
5320 domain.<a href="#ftn.idp8707552" class="footnote" name="idp8707552"><sup class="footnote">[127]</sup></a>
5321 </p><a class="indexterm" name="idp8710720"></a><a class="indexterm" name="idp8711984"></a><a class="indexterm" name="idp8713088"></a><p>
5322 Even today, this structure would make sense. Most creative work
5323 has an actual commercial life of just a couple of years. Most books fall
5324 out of print after one year.<a href="#ftn.idp8714624" class="footnote" name="idp8714624"><sup class="footnote">[128]</sup></a> When that happens, the
5325 used books are traded free of copyright regulation. Thus the books are
5326 no longer <span class="emphasis"><em>effectively</em></span> controlled by
5327 copyright. The only practical commercial use of the books at that time
5328 is to sell the books as used books; that use&#8212;because it does not
5329 involve publication&#8212;is effectively free.
5330 </p><a class="indexterm" name="idxcongressusoncopyrightlaws6"></a><a class="indexterm" name="idxcongressuscopyrighttermsextendedby"></a><a class="indexterm" name="idxcopyrightlawtermextensionsin"></a><p>
5331 In the first hundred years of the Republic, the term of copyright was
5332 changed once. In 1831, the term was increased from a maximum of 28
5333 years to a maximum of 42 by increasing the initial term of copyright
5334 from 14 years to 28 years. In the next fifty years of the Republic,
5335 the term increased once again. In 1909, Congress extended the renewal
5336 term of 14 years to 28 years, setting a maximum term of 56 years.
5337 </p><a class="indexterm" name="idxsonnybonocopyrighttermextensionactctea"></a><a class="indexterm" name="idxpublicdomainfuturepatentsvsfuturecopyrightsin"></a><p>
5338 Then, beginning in 1962, Congress started a practice that has defined
5339 copyright law since. Eleven times in the last forty years, Congress
5340 has extended the terms of existing copyrights; twice in those forty
5341 years, Congress extended the term of future copyrights. Initially, the
5342 extensions of existing copyrights were short, a mere one to two years.
5343 In 1976, Congress extended all existing copyrights by nineteen years.
5344 And in 1998, in the Sonny Bono Copyright Term Extension Act, Congress
5345 extended the term of existing and future copyrights by twenty years.
5346 </p><a class="indexterm" name="idp8727280"></a><p>
5347 The effect of these extensions is simply to toll, or delay, the passing
5348 of works into the public domain. This latest extension means that the
5349 public domain will have been tolled for thirty-nine out of fifty-five
5350 years, or 70 percent of the time since 1962. Thus, in the twenty years
5351
5352
5353 after the Sonny Bono Act, while one million patents will pass into the
5354 public domain, zero copyrights will pass into the public domain by virtue
5355 of the expiration of a copyright term.
5356 </p><a class="indexterm" name="idp8729600"></a><p>
5357 The effect of these extensions has been exacerbated by another,
5358 little-noticed change in the copyright law. Remember I said that the
5359 framers established a two-part copyright regime, requiring a copyright
5360 owner to renew his copyright after an initial term. The requirement of
5361 renewal meant that works that no longer needed copyright protection
5362 would pass more quickly into the public domain. The works remaining
5363 under protection would be those that had some continuing commercial
5364 value.
5365 </p><a class="indexterm" name="idp8731824"></a><a class="indexterm" name="idp8732608"></a><a class="indexterm" name="idp8733728"></a><p>
5366 The United States abandoned this sensible system in 1976. For
5367 all works created after 1978, there was only one copyright term&#8212;the
5368 maximum term. For <span class="quote">«<span class="quote">natural</span>»</span> authors, that term was life plus fifty
5369 years. For corporations, the term was seventy-five years. Then, in 1992,
5370 Congress abandoned the renewal requirement for all works created
5371 before 1978. All works still under copyright would be accorded the
5372 maximum term then available. After the Sonny Bono Act, that term
5373 was ninety-five years.
5374 </p><p>
5375 This change meant that American law no longer had an automatic way to
5376 assure that works that were no longer exploited passed into the public
5377 domain. And indeed, after these changes, it is unclear whether it is
5378 even possible to put works into the public domain. The public domain
5379 is orphaned by these changes in copyright law. Despite the requirement
5380 that terms be <span class="quote">«<span class="quote">limited,</span>»</span> we have no evidence that anything will limit
5381 them.
5382 </p><a class="indexterm" name="idp8737408"></a><a class="indexterm" name="idp8738736"></a><p>
5383 The effect of these changes on the average duration of copyright is
5384 dramatic. In 1973, more than 85 percent of copyright owners failed to
5385 renew their copyright. That meant that the average term of copyright
5386 in 1973 was just 32.2 years. Because of the elimination of the renewal
5387 requirement, the average term of copyright is now the maximum term.
5388 In thirty years, then, the average term has tripled, from 32.2 years to 95
5389 years.<a href="#ftn.idp8740832" class="footnote" name="idp8740832"><sup class="footnote">[129]</sup></a>
5390 </p><a class="indexterm" name="idp8742496"></a><a class="indexterm" name="idp8743744"></a><a class="indexterm" name="idp8745072"></a><a class="indexterm" name="idp8746352"></a><a class="indexterm" name="idp8747632"></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>
5391 The <span class="quote">«<span class="quote">scope</span>»</span> of a copyright is the range of rights granted by the law.
5392 The scope of American copyright has changed dramatically. Those
5393 changes are not necessarily bad. But we should understand the extent
5394 of the changes if we're to keep this debate in context.
5395 </p><a class="indexterm" name="idp8753312"></a><a class="indexterm" name="idxderivativeworkshistoricalshiftincopyrightcoverageof"></a><p>
5396 In 1790, that scope was very narrow. Copyright covered only <span class="quote">«<span class="quote">maps,
5397 charts, and books.</span>»</span> That means it didn't cover, for example, music or
5398 architecture. More significantly, the right granted by a copyright gave
5399 the author the exclusive right to <span class="quote">«<span class="quote">publish</span>»</span> copyrighted works. That
5400 means someone else violated the copyright only if he republished the
5401 work without the copyright owner's permission. Finally, the right granted
5402 by a copyright was an exclusive right to that particular book. The right
5403 did not extend to what lawyers call <span class="quote">«<span class="quote">derivative works.</span>»</span> It would not,
5404 therefore, interfere with the right of someone other than the author to
5405 translate a copyrighted book, or to adapt the story to a different form
5406 (such as a drama based on a published book).
5407 </p><p>
5408 This, too, has changed dramatically. While the contours of copyright
5409 today are extremely hard to describe simply, in general terms, the
5410 right covers practically any creative work that is reduced to a
5411 tangible form. It covers music as well as architecture, drama as well
5412 as computer programs. It gives the copyright owner of that creative
5413 work not only the exclusive right to <span class="quote">«<span class="quote">publish</span>»</span> the work, but also the
5414 exclusive right of control over any <span class="quote">«<span class="quote">copies</span>»</span> of that work. And most
5415 significant for our purposes here, the right gives the copyright owner
5416 control over not only his or her particular work, but also any
5417 <span class="quote">«<span class="quote">derivative work</span>»</span> that might grow out of the original work. In this
5418 way, the right covers more creative work, protects the creative work
5419 more broadly, and protects works that are based in a significant way
5420 on the initial creative work.
5421 </p><a class="indexterm" name="idxcopyrightmarkingof"></a><a class="indexterm" name="idxformalities"></a><a class="indexterm" name="idxcopyrightlawregistrationrequirementof"></a><p>
5422 At the same time that the scope of copyright has expanded, procedural
5423 limitations on the right have been relaxed. I've already described the
5424 complete removal of the renewal requirement in 1992. In addition
5425
5426 to the renewal requirement, for most of the history of American
5427 copyright law, there was a requirement that a work be registered
5428 before it could receive the protection of a copyright. There was also
5429 a requirement that any copyrighted work be marked either with that
5430 famous © or the word <span class="emphasis"><em>copyright</em></span>. And for most
5431 of the history of American copyright law, there was a requirement that
5432 works be deposited with the government before a copyright could be
5433 secured.
5434 </p><a class="indexterm" name="idp8768352"></a><p>
5435 The reason for the registration requirement was the sensible
5436 understanding that for most works, no copyright was required. Again,
5437 in the first ten years of the Republic, 95 percent of works eligible
5438 for copyright were never copyrighted. Thus, the rule reflected the
5439 norm: Most works apparently didn't need copyright, so registration
5440 narrowed the regulation of the law to the few that did. The same
5441 reasoning justified the requirement that a work be marked as
5442 copyrighted&#8212;that way it was easy to know whether a copyright was
5443 being claimed. The requirement that works be deposited was to assure
5444 that after the copyright expired, there would be a copy of the work
5445 somewhere so that it could be copied by others without locating the
5446 original author.
5447 </p><a class="indexterm" name="idp8769984"></a><p>
5448 All of these <span class="quote">«<span class="quote">formalities</span>»</span> were abolished in the American system when
5449 we decided to follow European copyright law. There is no requirement
5450 that you register a work to get a copyright; the copyright now is
5451 automatic; the copyright exists whether or not you mark your work with
5452 a ©; and the copyright exists whether or not you actually make a
5453 copy available for others to copy.
5454 </p><a class="indexterm" name="idp8773280"></a><a class="indexterm" name="idp8774816"></a><a class="indexterm" name="idp8776080"></a><p>
5455 Consider a practical example to understand the scope of these
5456 differences.
5457 </p><a class="indexterm" name="idxcopyrightact2"></a><p>
5458 If, in 1790, you wrote a book and you were one of the 5 percent who
5459 actually copyrighted that book, then the copyright law protected you
5460 against another publisher's taking your book and republishing it
5461 without your permission. The aim of the act was to regulate publishers
5462 so as to prevent that kind of unfair competition. In 1790, there were
5463 174 publishers in the United States.<a href="#ftn.idp8779888" class="footnote" name="idp8779888"><sup class="footnote">[130]</sup></a>
5464 The Copyright Act was thus a tiny
5465 regulation of a tiny proportion of a tiny part of the creative market in
5466 the United States&#8212;publishers.
5467 </p><a class="indexterm" name="idxcopyrightlawonrepublishingvstransformationoforiginalwork2"></a><a class="indexterm" name="idxderivativeworkspiracyvs3"></a><a class="indexterm" name="idxpiracyderivativeworkvs3"></a><p>
5468
5469 The act left other creators totally unregulated. If I copied your poem
5470 by hand, over and over again, as a way to learn it by heart, my act
5471 was totally unregulated by the 1790 act. If I took your novel and made
5472 a play based upon it, or if I translated it or abridged it, none of
5473 those activities were regulated by the original copyright act. These
5474 creative activities remained free, while the activities of publishers
5475 were restrained.
5476 </p><a class="indexterm" name="idp8789104"></a><p>
5477 Today the story is very different: If you write a book, your book is
5478 automatically protected. Indeed, not just your book. Every e-mail,
5479 every note to your spouse, every doodle, <span class="emphasis"><em>every</em></span>
5480 creative act that's reduced to a tangible form&#8212;all of this is
5481 automatically copyrighted.  There is no need to register or mark your
5482 work. The protection follows the creation, not the steps you take to
5483 protect it.
5484 </p><p>
5485 That protection gives you the right (subject to a narrow range of
5486 fair use exceptions) to control how others copy the work, whether they
5487 copy it to republish it or to share an excerpt.
5488 </p><p>
5489 That much is the obvious part. Any system of copyright would
5490                 control
5491 competing publishing. But there's a second part to the copyright of
5492 today that is not at all obvious. This is the protection of <span class="quote">«<span class="quote">derivative
5493 rights.</span>»</span> If you write a book, no one can make a movie out of your
5494 book without permission. No one can translate it without permission.
5495 CliffsNotes can't make an abridgment unless permission is granted. All
5496 of these derivative uses of your original work are controlled by the
5497 copyright holder. The copyright, in other words, is now not just an
5498                 exclusive
5499 right to your writings, but an exclusive right to your writings
5500 and a large proportion of the writings inspired by them.
5501 </p><a class="indexterm" name="idp8793728"></a><p>
5502 It is this derivative right that would seem most bizarre to our
5503 framers, though it has become second nature to us. Initially, this
5504                 expansion
5505 was created to deal with obvious evasions of a narrower
5506                 copyright.
5507 If I write a book, can you change one word and then claim a
5508 copyright in a new and different book? Obviously that would make a
5509 joke of the copyright, so the law was properly expanded to include
5510 those slight modifications as well as the verbatim original work.
5511 </p><p>
5512
5513 In preventing that joke, the law created an astonishing power
5514 within a free culture&#8212;at least, it's astonishing when you
5515 understand that the law applies not just to the commercial publisher
5516 but to anyone with a computer. I understand the wrong in duplicating
5517 and selling someone else's work. But whatever
5518 <span class="emphasis"><em>that</em></span> wrong is, transforming someone else's work
5519 is a different wrong. Some view transformation as no wrong at
5520 all&#8212;they believe that our law, as the framers penned it, should
5521 not protect derivative rights at all.<a href="#ftn.idp8797248" class="footnote" name="idp8797248"><sup class="footnote">[131]</sup></a>
5522 Whether or not you go that far, it seems
5523 plain that whatever wrong is involved is fundamentally different from
5524 the wrong of direct piracy.
5525 </p><p>
5526 Yet copyright law treats these two different wrongs in the same way. I
5527 can go to court and get an injunction against your pirating my book. I
5528 can go to court and get an injunction against your transformative use
5529 of my book.<a href="#ftn.idp8801472" class="footnote" name="idp8801472"><sup class="footnote">[132]</sup></a>
5530 These two different uses of my creative work are treated the same.
5531 </p><a class="indexterm" name="idp8804864"></a><a class="indexterm" name="idp8806256"></a><a class="indexterm" name="idp8807072"></a><p>
5532 This again may seem right to you. If I wrote a book, then why should
5533 you be able to write a movie that takes my story and makes money from
5534 it without paying me or crediting me? Or if Disney creates a creature
5535 called <span class="quote">«<span class="quote">Mickey Mouse,</span>»</span> why should you be able to make Mickey Mouse
5536 toys and be the one to trade on the value that Disney originally
5537 created?
5538 </p><p>
5539 These are good arguments, and, in general, my point is not that the
5540 derivative right is unjustified. My aim just now is much narrower:
5541 simply to make clear that this expansion is a significant change from
5542 the rights originally granted.
5543 </p><a class="indexterm" name="idp8809696"></a><a class="indexterm" name="idp8810960"></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>
5544 Whereas originally the law regulated only publishers, the change in
5545 copyright's scope means that the law today regulates publishers, users,
5546 and authors. It regulates them because all three are capable of making
5547 copies, and the core of the regulation of copyright law is copies.<a href="#ftn.idp8817904" class="footnote" name="idp8817904"><sup class="footnote">[133]</sup></a>
5548 </p><a class="indexterm" name="idp8821760"></a><a class="indexterm" name="idxcreativepropertyotherpropertyrightsvs2"></a><p>
5549
5550 <span class="quote">«<span class="quote">Copies.</span>»</span> That certainly sounds like the obvious thing for
5551 <span class="emphasis"><em>copy</em></span>right law to regulate. But as with Jack
5552 Valenti's argument at the start of this chapter, that <span class="quote">«<span class="quote">creative
5553 property</span>»</span> deserves the <span class="quote">«<span class="quote">same rights</span>»</span> as all other property, it is the
5554 <span class="emphasis"><em>obvious</em></span> that we need to be most careful
5555 about. For while it may be obvious that in the world before the
5556 Internet, copies were the obvious trigger for copyright law, upon
5557 reflection, it should be obvious that in the world with the Internet,
5558 copies should <span class="emphasis"><em>not</em></span> be the trigger for copyright
5559 law. More precisely, they should not <span class="emphasis"><em>always</em></span> be
5560 the trigger for copyright law.
5561 </p><a class="indexterm" name="idp8828992"></a><p>
5562 This is perhaps the central claim of this book, so let me take this
5563 very slowly so that the point is not easily missed. My claim is that the
5564 Internet should at least force us to rethink the conditions under which
5565 the law of copyright automatically applies,<a href="#ftn.idp8830912" class="footnote" name="idp8830912"><sup class="footnote">[134]</sup></a>
5566 because it is clear that the
5567 current reach of copyright was never contemplated, much less chosen,
5568 by the legislators who enacted copyright law.
5569 </p><a class="indexterm" name="idp8832368"></a><a class="indexterm" name="idp8833600"></a><p>
5570 We can see this point abstractly by beginning with this largely
5571 empty circle.
5572 </p><div class="figure"><a name="fig-1521"></a><p class="title"><b>Figure 10.7. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="40%"><tr><td align="center"><img src="images/1521.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idxbooksthreetypesofusesof"></a><a class="indexterm" name="idxcopyrightlawcopiesascoreissueof2"></a><a class="indexterm" name="idxinternetcopyrightapplicabilityalteredbytechnologyof"></a><a class="indexterm" name="idxtechnologycopyrightintentalteredby"></a><a class="indexterm" name="idxderivativeworkspiracyvs4"></a><a class="indexterm" name="idxpiracyderivativeworkvs4"></a><p>
5573
5574 Think about a book in real space, and imagine this circle to represent
5575 all its potential <span class="emphasis"><em>uses</em></span>. Most of these uses are
5576 unregulated by copyright law, because the uses don't create a copy. If
5577 you read a book, that act is not regulated by copyright law. If you
5578 give someone the book, that act is not regulated by copyright law. If
5579 you resell a book, that act is not regulated (copyright law expressly
5580 states that after the first sale of a book, the copyright owner can
5581 impose no further conditions on the disposition of the book). If you
5582 sleep on the book or use it to hold up a lamp or let your puppy chew
5583 it up, those acts are not regulated by copyright law, because those
5584 acts do not make a copy.
5585 </p><div class="figure"><a name="fig-1531"></a><p class="title"><b>Figure 10.8. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="40%"><tr><td align="center"><img src="images/1531.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5586 Obviously, however, some uses of a copyrighted book are regulated
5587 by copyright law. Republishing the book, for example, makes a copy. It
5588 is therefore regulated by copyright law. Indeed, this particular use stands
5589 at the core of this circle of possible uses of a copyrighted work. It is the
5590 paradigmatic use properly regulated by copyright regulation (see
5591 diagram in figure <a class="xref" href="#fig-1541" title="Figure 10.9. ">10.9</a>).
5592 </p><a class="indexterm" name="idp8855344"></a><a class="indexterm" name="idp8856704"></a><div class="figure"><a name="fig-1541"></a><p class="title"><b>Figure 10.9. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="40%"><tr><td align="center"><img src="images/1541.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idxfairuse"></a><a class="indexterm" name="idxcopyrightlawfairuseand2"></a><p>
5593 Finally, there is a tiny sliver of otherwise regulated copying uses
5594 that remain unregulated because the law considers these <span class="quote">«<span class="quote">fair uses.</span>»</span>
5595 </p><a class="indexterm" name="idp8865184"></a><a class="indexterm" name="idp8866256"></a><p>
5596 These are uses that themselves involve copying, but which the law
5597 treats as unregulated because public policy demands that they remain
5598 unregulated.  You are free to quote from this book, even in a review
5599 that is quite negative, without my permission, even though that
5600 quoting makes a copy. That copy would ordinarily give the copyright
5601 owner the exclusive right to say whether the copy is allowed or not,
5602 but the law denies the owner any exclusive right over such <span class="quote">«<span class="quote">fair uses</span>»</span>
5603 for public policy (and possibly First Amendment) reasons.
5604 </p><div class="figure"><a name="fig-1542"></a><p class="title"><b>Figure 10.10. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="40%"><tr><td align="center"><img src="images/1542.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idxcopyrightusagerestrictionsattachedto"></a><p>
5605
5606 In real space, then, the possible uses of a book are divided into three
5607 sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that
5608 are nonetheless deemed <span class="quote">«<span class="quote">fair</span>»</span> regardless of the copyright owner's views.
5609 </p><a class="indexterm" name="idp8874032"></a><a class="indexterm" name="idxbooksoninternet"></a><a class="indexterm" name="idxinternetbookson2"></a><a class="indexterm" name="idp8878912"></a><p>
5610 Enter the Internet&#8212;a distributed, digital network where every use
5611 of a copyrighted work produces a copy.<a href="#ftn.idp8880464" class="footnote" name="idp8880464"><sup class="footnote">[135]</sup></a>
5612 And because of this single, arbitrary feature of the design of a
5613 digital network, the scope of category 1 changes dramatically. Uses
5614 that before were presumptively unregulated are now presumptively
5615 regulated. No longer is there a set of presumptively unregulated uses
5616 that define a freedom associated with a copyrighted work. Instead,
5617 each use is now subject to the copyright, because each use also makes
5618 a copy&#8212;category 1 gets sucked into category 2. And those who
5619 would defend the unregulated uses of copyrighted work must look
5620 exclusively to category 3, fair uses, to bear the burden of this
5621 shift.
5622 </p><a class="indexterm" name="idp8881968"></a><a class="indexterm" name="idp8883920"></a><p>
5623 So let's be very specific to make this general point clear. Before the
5624 Internet, if you purchased a book and read it ten times, there would
5625 be no plausible <span class="emphasis"><em>copyright</em></span>-related argument that
5626 the copyright owner could make to control that use of her
5627 book. Copyright law would have nothing to say about whether you read
5628 the book once, ten times, or every
5629
5630 night before you went to bed. None of those instances of
5631 use&#8212;reading&#8212; could be regulated by copyright law because
5632 none of those uses produced a copy.
5633 </p><a class="indexterm" name="idxebooks"></a><a class="indexterm" name="idxderivativeworkstechnologicaldevelopmentsand"></a><p>
5634 But the same book as an e-book is effectively governed by a different
5635 set of rules. Now if the copyright owner says you may read the book
5636 only once or only once a month, then <span class="emphasis"><em>copyright
5637 law</em></span> would aid the copyright owner in exercising this degree
5638 of control, because of the accidental feature of copyright law that
5639 triggers its application upon there being a copy. Now if you read the
5640 book ten times and the license says you may read it only five times,
5641 then whenever you read the book (or any portion of it) beyond the
5642 fifth time, you are making a copy of the book contrary to the
5643 copyright owner's wish.
5644 </p><div class="figure"><a name="fig-1551"></a><p class="title"><b>Figure 10.11. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="40%"><tr><td align="center"><img src="images/1551.svg" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5645 There are some people who think this makes perfect sense. My aim
5646 just now is not to argue about whether it makes sense or not. My aim
5647 is only to make clear the change. Once you see this point, a few other
5648 points also become clear:
5649 </p><p>
5650 First, making category 1 disappear is not anything any policy maker
5651 ever intended. Congress did not think through the collapse of the
5652 presumptively unregulated uses of copyrighted works. There is no
5653 evidence at all that policy makers had this idea in mind when they
5654 allowed our policy here to shift. Unregulated uses were an important
5655 part of free culture before the Internet.
5656 </p><a class="indexterm" name="idxcopyrightlawonrepublishingvstransformationoforiginalwork3"></a><p>
5657 Second, this shift is especially troubling in the context of
5658 transformative uses of creative content. Again, we can all understand
5659 the wrong in commercial piracy. But the law now purports to regulate
5660 <span class="emphasis"><em>any</em></span> transformation you make of creative work
5661 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
5662 crimes. Tinkering with a story and releasing it to others exposes the
5663 tinkerer to at least a requirement of justification.  However
5664 troubling the expansion with respect to copying a particular work, it
5665 is extraordinarily troubling with respect to transformative uses of
5666 creative work.
5667 </p><a class="indexterm" name="idxfairuseinternetburdenson"></a><a class="indexterm" name="idxcopyrightlawfairuseand3"></a><a class="indexterm" name="idxderivativeworksfairusevs"></a><p>
5668 Third, this shift from category 1 to category 2 puts an extraordinary
5669
5670
5671 burden on category 3 (<span class="quote">«<span class="quote">fair use</span>»</span>) that fair use never before had to
5672 bear.  If a copyright owner now tried to control how many times I
5673 could read a book on-line, the natural response would be to argue that
5674 this is a violation of my fair use rights. But there has never been
5675 any litigation about whether I have a fair use right to read, because
5676 before the Internet, reading did not trigger the application of
5677 copyright law and hence the need for a fair use defense. The right to
5678 read was effectively protected before because reading was not
5679 regulated.
5680 </p><a class="indexterm" name="idp8907264"></a><a class="indexterm" name="idp8908608"></a><a class="indexterm" name="idp8909936"></a><a class="indexterm" name="idp8911264"></a><a class="indexterm" name="idp8912528"></a><p>
5681 This point about fair use is totally ignored, even by advocates for
5682 free culture. We have been cornered into arguing that our rights
5683 depend upon fair use&#8212;never even addressing the earlier question
5684 about the expansion in effective regulation. A thin protection
5685 grounded in fair use makes sense when the vast majority of uses are
5686 <span class="emphasis"><em>unregulated</em></span>. But when everything becomes
5687 presumptively regulated, then the protections of fair use are not
5688 enough.
5689 </p><a class="indexterm" name="idp8915280"></a><a class="indexterm" name="idp8916624"></a><a class="indexterm" name="idp8917824"></a><a class="indexterm" name="idp8919136"></a><a class="indexterm" name="idp8920448"></a><a class="indexterm" name="idp8921840"></a><a class="indexterm" name="idp8923184"></a><a class="indexterm" name="idxvideopipeline"></a><a class="indexterm" name="idxadvertising"></a><a class="indexterm" name="idxfilmindustrytraileradvertisementsof"></a><p>
5690 The case of Video Pipeline is a good example. Video Pipeline was
5691 in the business of making <span class="quote">«<span class="quote">trailer</span>»</span> advertisements for movies available
5692 to video stores. The video stores displayed the trailers as a way to sell
5693 videos. Video Pipeline got the trailers from the film distributors, put
5694 the trailers on tape, and sold the tapes to the retail stores.
5695 </p><a class="indexterm" name="idp8930576"></a><p>
5696 The company did this for about fifteen years. Then, in 1997, it began
5697 to think about the Internet as another way to distribute these
5698 previews.  The idea was to expand their <span class="quote">«<span class="quote">selling by sampling</span>»</span>
5699 technique by giving on-line stores the same ability to enable
5700 <span class="quote">«<span class="quote">browsing.</span>»</span> Just as in a bookstore you can read a few pages of a book
5701 before you buy the book, so, too, you would be able to sample a bit
5702 from the movie on-line before you bought it.
5703 </p><a class="indexterm" name="idxdisneyinc2"></a><a class="indexterm" name="idp8934496"></a><a class="indexterm" name="idxcopyrightlawcopiesascoreissueof3"></a><a class="indexterm" name="idxfairuselegalintimidationtacticsagainst2"></a><p>
5704 In 1998, Video Pipeline informed Disney and other film distributors
5705 that it intended to distribute the trailers through the Internet
5706 (rather than sending the tapes) to distributors of their videos. Two
5707 years later, Disney told Video Pipeline to stop. The owner of Video
5708
5709 Pipeline asked Disney to talk about the matter&#8212;he had built a
5710 business on distributing this content as a way to help sell Disney
5711 films; he had customers who depended upon his delivering this
5712 content. Disney would agree to talk only if Video Pipeline stopped the
5713 distribution immediately.  Video Pipeline thought it was within their
5714 <span class="quote">«<span class="quote">fair use</span>»</span> rights to distribute the clips as they had. So they filed a
5715 lawsuit to ask the court to declare that these rights were in fact
5716 their rights.
5717 </p><a class="indexterm" name="idp8941264"></a><a class="indexterm" name="idp8942512"></a><a class="indexterm" name="idxcopyrightusagerestrictionsattachedto2"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitswillfulinfringementfindingsin"></a><a class="indexterm" name="idp8947792"></a><p>
5718 Disney countersued&#8212;for $100 million in damages. Those damages
5719 were predicated upon a claim that Video Pipeline had <span class="quote">«<span class="quote">willfully
5720 infringed</span>»</span> on Disney's copyright. When a court makes a finding of
5721 willful infringement, it can award damages not on the basis of the
5722 actual harm to the copyright owner, but on the basis of an amount set
5723 in the statute. Because Video Pipeline had distributed seven hundred
5724 clips of Disney movies to enable video stores to sell copies of those
5725 movies, Disney was now suing Video Pipeline for $100 million.
5726 </p><p>
5727 Disney has the right to control its property, of course. But the video
5728 stores that were selling Disney's films also had some sort of right to be
5729 able to sell the films that they had bought from Disney. Disney's claim
5730 in court was that the stores were allowed to sell the films and they were
5731 permitted to list the titles of the films they were selling, but they were
5732 not allowed to show clips of the films as a way of selling them without
5733 Disney's permission.
5734 </p><a class="indexterm" name="idp8950848"></a><p>
5735 Now, you might think this is a close case, and I think the courts
5736 would consider it a close case. My point here is to map the change
5737 that gives Disney this power. Before the Internet, Disney couldn't
5738 really control how people got access to their content. Once a video
5739 was in the marketplace, the <span class="quote">«<span class="quote">first-sale doctrine</span>»</span> would free the
5740 seller to use the video as he wished, including showing portions of it
5741 in order to engender sales of the entire movie video. But with the
5742 Internet, it becomes possible for Disney to centralize control over
5743 access to this content. Because each use of the Internet produces a
5744 copy, use on the Internet becomes subject to the copyright owner's
5745 control. The technology expands the scope of effective control,
5746 because the technology builds a copy into every transaction.
5747 </p><a class="indexterm" name="idp8952752"></a><a class="indexterm" name="idp8954464"></a><a class="indexterm" name="idp8955776"></a><a class="indexterm" name="idp8957168"></a><a class="indexterm" name="idp8958496"></a><a class="indexterm" name="idp8959872"></a><a class="indexterm" name="idp8961296"></a><a class="indexterm" name="idp8962112"></a><a class="indexterm" name="idp8962928"></a><p>
5748
5749 No doubt, a potential is not yet an abuse, and so the potential for
5750 control is not yet the abuse of control. Barnes &amp; Noble has the
5751 right to say you can't touch a book in their store; property law gives
5752 them that right.  But the market effectively protects against that
5753 abuse. If Barnes &amp; Noble banned browsing, then consumers would
5754 choose other bookstores.  Competition protects against the
5755 extremes. And it may well be (my argument so far does not even
5756 question this) that competition would prevent any similar danger when
5757 it comes to copyright. Sure, publishers exercising the rights that
5758 authors have assigned to them might try to regulate how many times you
5759 read a book, or try to stop you from sharing the book with anyone. But
5760 in a competitive market such as the book market, the dangers of this
5761 happening are quite slight.
5762 </p><p>
5763 Again, my aim so far is simply to map the changes that this changed
5764 architecture enables. Enabling technology to enforce the control of
5765 copyright means that the control of copyright is no longer defined by
5766 balanced policy. The control of copyright is simply what private
5767 owners choose. In some contexts, at least, that fact is harmless. But
5768 in some contexts it is a recipe for disaster.
5769 </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>
5770 The disappearance of unregulated uses would be change enough, but a
5771 second important change brought about by the Internet magnifies its
5772 significance. This second change does not affect the reach of copyright
5773 regulation; it affects how such regulation is enforced.
5774 </p><a class="indexterm" name="idp8969856"></a><a class="indexterm" name="idp8970944"></a><p>
5775 In the world before digital technology, it was generally the law that
5776 controlled whether and how someone was regulated by copyright law.
5777 The law, meaning a court, meaning a judge: In the end, it was a human,
5778 trained in the tradition of the law and cognizant of the balances that
5779 tradition embraced, who said whether and how the law would restrict
5780 your freedom.
5781 </p><a class="indexterm" name="idp8972832"></a><a class="indexterm" name="idxmarxbrothers"></a><a class="indexterm" name="idxwarnerbrothers"></a><p>
5782 There's a famous story about a battle between the Marx Brothers
5783 and Warner Brothers. The Marxes intended to make a parody of
5784
5785 <em class="citetitle">Casablanca</em>. Warner Brothers objected. They
5786 wrote a nasty letter to the Marxes, warning them that there would be
5787 serious legal consequences if they went forward with their
5788 plan.<a href="#ftn.idp8978016" class="footnote" name="idp8978016"><sup class="footnote">[136]</sup></a>
5789 </p><p>
5790 This led the Marx Brothers to respond in kind. They warned
5791 Warner Brothers that the Marx Brothers <span class="quote">«<span class="quote">were brothers long before
5792 you were.</span>»</span><a href="#ftn.idp8980608" class="footnote" name="idp8980608"><sup class="footnote">[137]</sup></a>
5793 The Marx Brothers therefore owned the word
5794 <em class="citetitle">brothers</em>, and if Warner Brothers insisted on
5795 trying to control <em class="citetitle">Casablanca</em>, then the Marx
5796 Brothers would insist on control over <em class="citetitle">brothers</em>.
5797 </p><p>
5798 An absurd and hollow threat, of course, because Warner Brothers,
5799 like the Marx Brothers, knew that no court would ever enforce such a
5800 silly claim. This extremism was irrelevant to the real freedoms anyone
5801 (including Warner Brothers) enjoyed.
5802 </p><a class="indexterm" name="idxbooksoninternet2"></a><p>
5803 On the Internet, however, there is no check on silly rules, because on
5804 the Internet, increasingly, rules are enforced not by a human but by a
5805 machine: Increasingly, the rules of copyright law, as interpreted by
5806 the copyright owner, get built into the technology that delivers
5807 copyrighted content. It is code, rather than law, that rules. And the
5808 problem with code regulations is that, unlike law, code has no
5809 shame. Code would not get the humor of the Marx Brothers. The
5810 consequence of that is not at all funny.
5811 </p><a class="indexterm" name="idp8987712"></a><a class="indexterm" name="idp8989024"></a><a class="indexterm" name="idxadobeebookreader"></a><p>
5812 Consider the life of my Adobe eBook Reader.
5813 </p><p>
5814 An e-book is a book delivered in electronic form. An Adobe eBook is
5815 not a book that Adobe has published; Adobe simply produces the
5816 software that publishers use to deliver e-books. It provides the
5817 technology, and the publisher delivers the content by using the
5818 technology.
5819 </p><div class="figure-float" style="float: left;"><div class="figure"><a name="fig-example-adobe-ebook-reader"></a><p class="title"><b>Figure 10.12. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/example-adobe-ebook-reader.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"></div><p>
5820 In figure
5821 <a class="xref" href="#fig-example-adobe-ebook-reader" title="Figure 10.12. ">10.12</a>
5822 is a picture of an old version of my Adobe eBook Reader.
5823 </p><p>
5824 As you can see, I have a small collection of e-books within this
5825 e-book library. Some of these books reproduce content that is in the
5826 public domain: <em class="citetitle">Middlemarch</em>, for example, is in
5827 the public domain.  Some of them reproduce content that is not in the
5828 public domain: My own book <em class="citetitle">The Future of Ideas</em>
5829 is not yet within the public domain.  Consider
5830 <em class="citetitle">Middlemarch</em> first. If you click on my e-book
5831 copy of
5832
5833 <em class="citetitle">Middlemarch</em>, you'll see a fancy cover, and then
5834 a button at the bottom called Permissions.
5835 </p><p>
5836 If you click on the Permissions button, you'll see a list of the
5837 permissions that the publisher purports to grant with this book.
5838 </p><div class="figure"><a name="fig-1612"></a><p class="title"><b>Figure 10.13. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1612.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5839
5840 According to my eBook Reader, I have the permission to copy to the
5841 clipboard of the computer ten text selections every ten days. (So far,
5842 I've copied no text to the clipboard.)  I also have the permission to
5843 print ten pages from the book every ten days. Lastly, I have the
5844 permission to use the Read Aloud button to hear <em class="citetitle">Middlemarch</em>
5845 read aloud through the computer.
5846 </p><a class="indexterm" name="idp9004048"></a><a class="indexterm" name="idp9004864"></a><p>
5847 Here's the e-book for another work in the public domain (including the
5848 translation): Aristotle's <em class="citetitle">Politics</em>.
5849 </p><div class="figure"><a name="fig-1621"></a><p class="title"><b>Figure 10.14. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/aristotele-ebook.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5850 According to its permissions, no printing or copying is permitted
5851 at all. But fortunately, you can use the Read Aloud button to hear
5852 the book.
5853 </p><div class="figure"><a name="fig-1622"></a><p class="title"><b>Figure 10.15. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1622.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><a class="indexterm" name="idp9012256"></a><a class="indexterm" name="idp9013088"></a><p>
5854 Finally (and most embarrassingly), here are the permissions for the
5855 original e-book version of my last book, <em class="citetitle">The Future of
5856 Ideas</em>:
5857 </p><div class="figure"><a name="fig-1631"></a><p class="title"><b>Figure 10.16. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1631.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5858 No copying, no printing, and don't you dare try to listen to this book!
5859 </p><p>
5860 Now, the Adobe eBook Reader calls these controls
5861 <span class="quote">«<span class="quote">permissions</span>»</span>&#8212; as if the publisher has the power to control how
5862 you use these works.  For works under copyright, the copyright owner
5863 certainly does have the power&#8212;up to the limits of the copyright
5864 law. But for work not under copyright, there is no such copyright
5865 power.<a href="#ftn.idp9018672" class="footnote" name="idp9018672"><sup class="footnote">[138]</sup></a>
5866 When my e-book of <em class="citetitle">Middlemarch</em> says I have the
5867 permission to copy only ten text selections into the memory every ten
5868 days, what that really means is that the eBook Reader has enabled the
5869 publisher to control how I use the book on my computer, far beyond the
5870 control that the law would enable.
5871 </p><p>
5872 The control comes instead from the code&#8212;from the technology
5873 within which the e-book <span class="quote">«<span class="quote">lives.</span>»</span> Though the e-book says that these are
5874 permissions, they are not the sort of <span class="quote">«<span class="quote">permissions</span>»</span> that most of us
5875 deal with. When a teenager gets <span class="quote">«<span class="quote">permission</span>»</span> to stay out till
5876 midnight, she knows (unless she's Cinderella) that she can stay out
5877 till 2 A.M., but will suffer a punishment if she's caught. But when
5878 the Adobe eBook Reader says I have the permission to make ten copies
5879 of the text into the computer's memory, that means that after I've
5880 made ten copies, the computer will not make any more. The same with
5881 the printing restrictions: After ten pages, the eBook Reader will not
5882 print any more pages.  It's the same with the silly restriction that
5883 says that you can't use the Read Aloud button to read my book
5884 aloud&#8212;it's not that the company will sue you if you do; instead,
5885 if you push the Read Aloud button with my book, the machine simply
5886 won't read aloud.
5887 </p><a class="indexterm" name="idp9022960"></a><a class="indexterm" name="idp9024672"></a><p>
5888
5889 These are <span class="emphasis"><em>controls</em></span>, not permissions. Imagine a
5890 world where the Marx Brothers sold word processing software that, when
5891 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
5892 sentence.
5893 </p><p>
5894 This is the future of copyright law: not so much copyright
5895 <span class="emphasis"><em>law</em></span> as copyright <span class="emphasis"><em>code</em></span>. The
5896 controls over access to content will not be controls that are ratified
5897 by courts; the controls over access to content will be controls that
5898 are coded by programmers. And whereas the controls that are built into
5899 the law are always to be checked by a judge, the controls that are
5900 built into the technology have no similar built-in check.
5901 </p><p>
5902 How significant is this? Isn't it always possible to get around the
5903 controls built into the technology? Software used to be sold with
5904 technologies that limited the ability of users to copy the software,
5905 but those were trivial protections to defeat. Why won't it be trivial
5906 to defeat these protections as well?
5907 </p><p>
5908 We've only scratched the surface of this story. Return to the Adobe
5909 eBook Reader.
5910 </p><a class="indexterm" name="idxalicesadventuresinwonderlandcarroll"></a><a class="indexterm" name="idxpublicdomainebookrestrictionson2"></a><p>
5911 Early in the life of the Adobe eBook Reader, Adobe suffered a public
5912 relations nightmare. Among the books that you could download for free
5913 on the Adobe site was a copy of <em class="citetitle">Alice's Adventures in
5914 Wonderland</em>.  This wonderful book is in the public
5915 domain. Yet when you clicked on Permissions for that book, you got the
5916 following report:
5917 </p><div class="figure"><a name="fig-1641"></a><p class="title"><b>Figure 10.17. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="50%"><tr><td align="center"><img src="images/1641.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
5918 Here was a public domain children's book that you were not allowed to
5919 copy, not allowed to lend, not allowed to give, and, as the
5920 <span class="quote">«<span class="quote">permissions</span>»</span> indicated, not allowed to <span class="quote">«<span class="quote">read aloud</span>»</span>!
5921 </p><p>
5922 The public relations nightmare attached to that final permission.
5923 For the text did not say that you were not permitted to use the Read
5924 Aloud button; it said you did not have the permission to read the book
5925 aloud. That led some people to think that Adobe was restricting the
5926 right of parents, for example, to read the book to their children, which
5927 seemed, to say the least, absurd.
5928 </p><p>
5929 Adobe responded quickly that it was absurd to think that it was trying
5930 to restrict the right to read a book aloud. Obviously it was only
5931 restricting the ability to use the Read Aloud button to have the book
5932 read aloud. But the question Adobe never did answer is this: Would
5933 Adobe thus agree that a consumer was free to use software to hack
5934 around the restrictions built into the eBook Reader? If some company
5935 (call it Elcomsoft) developed a program to disable the technological
5936 protection built into an Adobe eBook so that a blind person, say,
5937 could use a computer to read the book aloud, would Adobe agree that
5938 such a use of an eBook Reader was fair? Adobe didn't answer because
5939 the answer, however absurd it might seem, is no.
5940 </p><a class="indexterm" name="idp9041824"></a><a class="indexterm" name="idp9043216"></a><p>
5941 The point is not to blame Adobe. Indeed, Adobe is among the most
5942 innovative companies developing strategies to balance open access to
5943 content with incentives for companies to innovate. But Adobe's
5944 technology enables control, and Adobe has an incentive to defend this
5945 control.  That incentive is understandable, yet what it creates is
5946 often crazy.
5947 </p><a class="indexterm" name="idp9045248"></a><a class="indexterm" name="idp9046512"></a><p>
5948 To see the point in a particularly absurd context, consider a favorite
5949 story of mine that makes the same point.
5950 </p><a class="indexterm" name="idxaibo1"></a><a class="indexterm" name="idxroboticdog1"></a><a class="indexterm" name="idxsonyaibo1"></a><p>
5951 Consider the robotic dog made by Sony named <span class="quote">«<span class="quote">Aibo.</span>»</span> The Aibo
5952 learns tricks, cuddles, and follows you around. It eats only electricity
5953 and that doesn't leave that much of a mess (at least in your house).
5954 </p><p>
5955 The Aibo is expensive and popular. Fans from around the world
5956 have set up clubs to trade stories. One fan in particular set up a Web
5957 site to enable information about the Aibo dog to be shared. This fan set
5958
5959 up aibopet.com (and aibohack.com, but that resolves to the same site),
5960 and on that site he provided information about how to teach an Aibo
5961 to do tricks in addition to the ones Sony had taught it.
5962 </p><p>
5963 <span class="quote">«<span class="quote">Teach</span>»</span> here has a special meaning. Aibos are just cute computers.
5964 You teach a computer how to do something by programming it
5965 differently.  So to say that aibopet.com was giving information about
5966 how to teach the dog to do new tricks is just to say that aibopet.com
5967 was giving information to users of the Aibo pet about how to hack
5968 their computer <span class="quote">«<span class="quote">dog</span>»</span> to make it do new tricks (thus, aibohack.com).
5969 </p><a class="indexterm" name="idp9056912"></a><p>
5970 If you're not a programmer or don't know many programmers, the word
5971 <em class="citetitle">hack</em> has a particularly unfriendly
5972 connotation. Nonprogrammers hack bushes or weeds. Nonprogrammers in
5973 horror movies do even worse. But to programmers, or coders, as I call
5974 them, <em class="citetitle">hack</em> is a much more positive
5975 term. <em class="citetitle">Hack</em> just means code that enables the
5976 program to do something it wasn't originally intended or enabled to
5977 do. If you buy a new printer for an old computer, you might find the
5978 old computer doesn't run, or <span class="quote">«<span class="quote">drive,</span>»</span> the printer. If you discovered
5979 that, you'd later be happy to discover a hack on the Net by someone
5980 who has written a driver to enable the computer to drive the printer
5981 you just bought.
5982 </p><p>
5983 Some hacks are easy. Some are unbelievably hard. Hackers as a
5984 community like to challenge themselves and others with increasingly
5985 difficult tasks. There's a certain respect that goes with the talent to hack
5986 well. There's a well-deserved respect that goes with the talent to hack
5987 ethically.
5988 </p><p>
5989 The Aibo fan was displaying a bit of both when he hacked the program
5990 and offered to the world a bit of code that would enable the Aibo to
5991 dance jazz. The dog wasn't programmed to dance jazz. It was a clever
5992 bit of tinkering that turned the dog into a more talented creature
5993 than Sony had built.
5994 </p><a class="indexterm" name="idp9061920"></a><a class="indexterm" name="idp9063168"></a><a class="indexterm" name="idp9064480"></a><p>
5995 I've told this story in many contexts, both inside and outside the
5996 United States. Once I was asked by a puzzled member of the audience,
5997 is it permissible for a dog to dance jazz in the United States? We
5998 forget that stories about the backcountry still flow across much of
5999 the
6000
6001
6002 world. So let's just be clear before we continue: It's not a crime
6003 anywhere (anymore) to dance jazz. Nor is it a crime to teach your dog
6004 to dance jazz. Nor should it be a crime (though we don't have a lot to
6005 go on here) to teach your robot dog to dance jazz. Dancing jazz is a
6006 completely legal activity. One imagines that the owner of aibopet.com
6007 thought, <span class="emphasis"><em>What possible problem could there be with teaching
6008 a robot dog to dance?</em></span>
6009 </p><a class="indexterm" name="idp9067568"></a><p>
6010 Let's put the dog to sleep for a minute, and turn to a pony show&#8212;
6011 not literally a pony show, but rather a paper that a Princeton academic
6012 named Ed Felten prepared for a conference. This Princeton academic
6013 is well known and respected. He was hired by the government in the
6014 Microsoft case to test Microsoft's claims about what could and could
6015 not be done with its own code. In that trial, he demonstrated both his
6016 brilliance and his coolness. Under heavy badgering by Microsoft
6017 lawyers, Ed Felten stood his ground. He was not about to be bullied
6018 into being silent about something he knew very well.
6019 </p><p>
6020 But Felten's bravery was really tested in April 2001.<a href="#ftn.idp9070080" class="footnote" name="idp9070080"><sup class="footnote">[139]</sup></a>
6021 He and a group of colleagues were working on a paper to be submitted
6022 at conference.  The paper was intended to describe the weakness in an
6023 encryption system being developed by the Secure Digital Music
6024 Initiative as a technique to control the distribution of music.
6025 </p><p>
6026 The SDMI coalition had as its goal a technology to enable content
6027 owners to exercise much better control over their content than the
6028 Internet, as it originally stood, granted them. Using encryption, SDMI
6029 hoped to develop a standard that would allow the content owner to say
6030 <span class="quote">«<span class="quote">this music cannot be copied,</span>»</span> and have a computer respect that
6031 command.  The technology was to be part of a <span class="quote">«<span class="quote">trusted system</span>»</span> of
6032 control that would get content owners to trust the system of the
6033 Internet much more.
6034 </p><p>
6035 When SDMI thought it was close to a standard, it set up a competition.
6036 In exchange for providing contestants with the code to an
6037 SDMI-encrypted bit of content, contestants were to try to crack it
6038 and, if they did, report the problems to the consortium.
6039 </p><p>
6040
6041 Felten and his team figured out the encryption system quickly. He and
6042 the team saw the weakness of this system as a type: Many encryption
6043 systems would suffer the same weakness, and Felten and his team
6044 thought it worthwhile to point this out to those who study encryption.
6045 </p><p>
6046 Let's review just what Felten was doing. Again, this is the United
6047 States. We have a principle of free speech. We have this principle not
6048 just because it is the law, but also because it is a really great
6049 idea. A strongly protected tradition of free speech is likely to
6050 encourage a wide range of criticism. That criticism is likely, in
6051 turn, to improve the systems or people or ideas criticized.
6052 </p><p>
6053 What Felten and his colleagues were doing was publishing a paper
6054 describing the weakness in a technology. They were not spreading free
6055 music, or building and deploying this technology. The paper was an
6056 academic essay, unintelligible to most people. But it clearly showed the
6057 weakness in the SDMI system, and why SDMI would not, as presently
6058 constituted, succeed.
6059 </p><a class="indexterm" name="idxaibo2"></a><a class="indexterm" name="idxroboticdog2"></a><a class="indexterm" name="idxsonyaibo2"></a><p>
6060 What links these two, aibopet.com and Felten, is the letters they
6061 then received. Aibopet.com received a letter from Sony about the
6062 aibopet.com hack. Though a jazz-dancing dog is perfectly legal, Sony
6063 wrote:
6064 </p><div class="blockquote"><blockquote class="blockquote"><p>
6065 Your site contains information providing the means to circumvent
6066 AIBO-ware's copy protection protocol constituting a violation of the
6067 anti-circumvention provisions of the Digital Millennium Copyright Act.
6068 </p></blockquote></div><a class="indexterm" name="idp9089840"></a><a class="indexterm" name="idp9091152"></a><a class="indexterm" name="idp9092464"></a><p>
6069 And though an academic paper describing the weakness in a system
6070 of encryption should also be perfectly legal, Felten received a letter
6071 from an RIAA lawyer that read:
6072 </p><div class="blockquote"><blockquote class="blockquote"><p>
6073 Any  disclosure of information gained from participating in the
6074
6075 Public Challenge would be outside the scope of activities permitted by
6076 the Agreement and could subject you and your research team to actions
6077 under the Digital Millennium Copyright Act (<span class="quote">«<span class="quote">DMCA</span>»</span>).
6078 </p></blockquote></div><p>
6079 In both cases, this weirdly Orwellian law was invoked to control the
6080 spread of information. The Digital Millennium Copyright Act made
6081 spreading such information an offense.
6082 </p><p>
6083 The DMCA was enacted as a response to copyright owners' first fear
6084 about cyberspace. The fear was that copyright control was effectively
6085 dead; the response was to find technologies that might compensate.
6086 These new technologies would be copyright protection
6087 technologies&#8212; technologies to control the replication and
6088 distribution of copyrighted material. They were designed as
6089 <span class="emphasis"><em>code</em></span> to modify the original
6090 <span class="emphasis"><em>code</em></span> of the Internet, to reestablish some
6091 protection for copyright owners.
6092 </p><p>
6093 The DMCA was a bit of law intended to back up the protection of this
6094 code designed to protect copyrighted material. It was, we could say,
6095 <span class="emphasis"><em>legal code</em></span> intended to buttress
6096 <span class="emphasis"><em>software code</em></span> which itself was intended to
6097 support the <span class="emphasis"><em>legal code of copyright</em></span>.
6098 </p><p>
6099 But the DMCA was not designed merely to protect copyrighted works to
6100 the extent copyright law protected them. Its protection, that is, did
6101 not end at the line that copyright law drew. The DMCA regulated
6102 devices that were designed to circumvent copyright protection
6103 measures. It was designed to ban those devices, whether or not the use
6104 of the copyrighted material made possible by that circumvention would
6105 have been a copyright violation.
6106 </p><a class="indexterm" name="idp9101104"></a><a class="indexterm" name="idp9101920"></a><a class="indexterm" name="idp9102736"></a><p>
6107 Aibopet.com and Felten make the point. The Aibo hack circumvented a
6108 copyright protection system for the purpose of enabling the dog to
6109 dance jazz. That enablement no doubt involved the use of copyrighted
6110 material. But as aibopet.com's site was noncommercial, and the use did
6111 not enable subsequent copyright infringements, there's no doubt that
6112 aibopet.com's hack was fair use of Sony's copyrighted material. Yet
6113 fair use is not a defense to the DMCA. The question is not whether the
6114
6115 use of the copyrighted material was a copyright violation. The question
6116 is whether a copyright protection system was circumvented.
6117 </p><p>
6118 The threat against Felten was more attenuated, but it followed the
6119 same line of reasoning. By publishing a paper describing how a
6120 copyright protection system could be circumvented, the RIAA lawyer
6121 suggested, Felten himself was distributing a circumvention technology.
6122 Thus, even though he was not himself infringing anyone's copyright,
6123 his academic paper was enabling others to infringe others' copyright.
6124 </p><a class="indexterm" name="idp9106000"></a><a class="indexterm" name="idxcassettevcrs2"></a><p>
6125 The bizarreness of these arguments is captured in a cartoon drawn in
6126 1981 by Paul Conrad. At that time, a court in California had held that
6127 the VCR could be banned because it was a copyright-infringing
6128 technology: It enabled consumers to copy films without the permission
6129 of the copyright owner. No doubt there were uses of the technology
6130 that were legal: Fred Rogers, aka <span class="quote">«<span class="quote"><em class="citetitle">Mr. Rogers</em>,</span>»</span>
6131 for example, had testified in that case that he wanted people to feel
6132 free to tape Mr. Rogers' Neighborhood.
6133 <a class="indexterm" name="idp9110080"></a>
6134 </p><div class="blockquote"><blockquote class="blockquote"><p>
6135 Some public stations, as well as commercial stations, program the
6136 <span class="quote">«<span class="quote">Neighborhood</span>»</span> at hours when some children cannot use it. I think that
6137 it's a real service to families to be able to record such programs and
6138 show them at appropriate times. I have always felt that with the
6139 advent of all of this new technology that allows people to tape the
6140 <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>
6141 because that's what I produce, that they then become much more active
6142 in the programming of their family's television life. Very frankly, I
6143 am opposed to people being programmed by others. My whole approach in
6144 broadcasting has always been <span class="quote">«<span class="quote">You are an important person just the way
6145 you are. You can make healthy decisions.</span>»</span> Maybe I'm going on too long,
6146 but I just feel that anything that allows a person to be more active
6147 in the control of his or her life, in a healthy way, is
6148 important.<a href="#ftn.idp9114096" class="footnote" name="idp9114096"><sup class="footnote">[140]</sup></a>
6149 </p></blockquote></div><p>
6150
6151 Even though there were uses that were legal, because there were
6152 some uses that were illegal, the court held the companies producing
6153 the VCR responsible.
6154 </p><p>
6155 This led Conrad to draw the cartoon in figure
6156 <a class="xref" href="#fig-1711-vcr-handgun-cartoonfig" title="Figure 10.18. &#8212; On which item have the courts ruled that manufacturers and retailers be held responsible for having supplied the equipment?">10.18</a>, which we can adopt to the
6157 DMCA.
6158 <a class="indexterm" name="idp9121008"></a>
6159 </p><p>
6160 No argument I have can top this picture, but let me try to get close.
6161 </p><div class="figure-float" style="float: left;"><div class="figure"><a name="fig-1711-vcr-handgun-cartoonfig"></a><p class="title"><b>Figure 10.18. &#8212; On which item have the courts ruled that manufacturers and
6162 retailers be held responsible for having supplied the
6163 equipment?</b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="65%"><tr><td align="center"><img src="images/vcr-comic.png" align="middle" width="100%" alt="&#8212; On which item have the courts ruled that manufacturers and retailers be held responsible for having supplied the equipment?"></td></tr></table></div></div></div><br class="figure-break"></div><p>
6164 The anticircumvention provisions of the DMCA target copyright
6165 circumvention technologies. Circumvention technologies can be used for
6166 different ends. They can be used, for example, to enable massive
6167 pirating of copyrighted material&#8212;a bad end. Or they can be used
6168 to enable the use of particular copyrighted materials in ways that
6169 would be considered fair use&#8212;a good end.
6170 </p><a class="indexterm" name="idxhandguns"></a><p>
6171 A handgun can be used to shoot a police officer or a child. Most
6172
6173 would agree such a use is bad. Or a handgun can be used for target
6174 practice or to protect against an intruder. At least some would say that
6175 such a use would be good. It, too, is a technology that has both good
6176 and bad uses.
6177 </p><a class="indexterm" name="idp9128432"></a><p>
6178 The obvious point of Conrad's cartoon is the weirdness of a world
6179 where guns are legal, despite the harm they can do, while VCRs (and
6180 circumvention technologies) are illegal. Flash: <span class="emphasis"><em>No one ever
6181 died from copyright circumvention</em></span>. Yet the law bans circumvention
6182 technologies absolutely, despite the potential that they might do some
6183 good, but permits guns, despite the obvious and tragic harm they do.
6184 </p><a class="indexterm" name="idp9130432"></a><a class="indexterm" name="idp9131696"></a><a class="indexterm" name="idp9133008"></a><a class="indexterm" name="idp9133824"></a><a class="indexterm" name="idp9134640"></a><p>
6185 The Aibo and RIAA examples demonstrate how copyright owners are
6186 changing the balance that copyright law grants. Using code, copyright
6187 owners restrict fair use; using the DMCA, they punish those who would
6188 attempt to evade the restrictions on fair use that they impose through
6189 code. Technology becomes a means by which fair use can be erased; the
6190 law of the DMCA backs up that erasing.
6191 </p><p>
6192 This is how <span class="emphasis"><em>code</em></span> becomes
6193 <span class="emphasis"><em>law</em></span>. The controls built into the technology of
6194 copy and access protection become rules the violation of which is also
6195 a violation of the law. In this way, the code extends the
6196 law&#8212;increasing its regulation, even if the subject it regulates
6197 (activities that would otherwise plainly constitute fair use) is
6198 beyond the reach of the law. Code becomes law; code extends the law;
6199 code thus extends the control that copyright owners effect&#8212;at
6200 least for those copyright holders with the lawyers who can write the
6201 nasty letters that Felten and aibopet.com received.
6202 </p><p>
6203 There is one final aspect of the interaction between architecture and
6204 law that contributes to the force of copyright's regulation. This is
6205 the ease with which infringements of the law can be detected. For
6206 contrary to the rhetoric common at the birth of cyberspace that on the
6207 Internet, no one knows you're a dog, increasingly, given changing
6208 technologies deployed on the Internet, it is easy to find the dog who
6209 committed a legal wrong. The technologies of the Internet are open to
6210 snoops as well as sharers, and the snoops are increasingly good at
6211 tracking down the identity of those who violate the rules.
6212 </p><p>
6213
6214
6215 For example, imagine you were part of a <em class="citetitle">Star Trek</em> fan club. You
6216 gathered every month to share trivia, and maybe to enact a kind of fan
6217 fiction about the show. One person would play Spock, another, Captain
6218 Kirk. The characters would begin with a plot from a real story, then
6219 simply continue it.<a href="#ftn.idp9140688" class="footnote" name="idp9140688"><sup class="footnote">[141]</sup></a>
6220 </p><p>
6221 Before the Internet, this was, in effect, a totally unregulated
6222 activity.  No matter what happened inside your club room, you would
6223 never be interfered with by the copyright police. You were free in
6224 that space to do as you wished with this part of our culture. You were
6225 allowed to build on it as you wished without fear of legal control.
6226 </p><a class="indexterm" name="idp9143408"></a><p>
6227 But if you moved your club onto the Internet, and made it generally
6228 available for others to join, the story would be very different. Bots
6229 scouring the Net for trademark and copyright infringement would
6230 quickly find your site. Your posting of fan fiction, depending upon
6231 the ownership of the series that you're depicting, could well inspire
6232 a lawyer's threat. And ignoring the lawyer's threat would be extremely
6233 costly indeed.  The law of copyright is extremely efficient. The
6234 penalties are severe, and the process is quick.
6235 </p><p>
6236 This change in the effective force of the law is caused by a change
6237 in the ease with which the law can be enforced. That change too shifts
6238 the law's balance radically. It is as if your car transmitted the speed at
6239 which you traveled at every moment that you drove; that would be just
6240 one step before the state started issuing tickets based upon the data you
6241 transmitted. That is, in effect, what is happening here.
6242 </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>
6243 So copyright's duration has increased dramatically&#8212;tripled in
6244 the past thirty years. And copyright's scope has increased as
6245 well&#8212;from regulating only publishers to now regulating just
6246 about everyone. And copyright's reach has changed, as every action
6247 becomes a copy and hence presumptively regulated. And as technologists
6248 find better ways
6249
6250 to control the use of content, and as copyright is increasingly
6251 enforced through technology, copyright's force changes, too. Misuse is
6252 easier to find and easier to control. This regulation of the creative
6253 process, which began as a tiny regulation governing a tiny part of the
6254 market for creative work, has become the single most important
6255 regulator of creativity there is. It is a massive expansion in the
6256 scope of the government's control over innovation and creativity; it
6257 would be totally unrecognizable to those who gave birth to copyright's
6258 control.
6259 </p><p>
6260 Still, in my view, all of these changes would not matter much if it
6261 weren't for one more change that we must also consider. This is a
6262 change that is in some sense the most familiar, though its significance
6263 and scope are not well understood. It is the one that creates precisely the
6264 reason to be concerned about all the other changes I have described.
6265 </p><p>
6266 This is the change in the concentration and integration of the media.
6267 In the past twenty years, the nature of media ownership has undergone
6268 a radical alteration, caused by changes in legal rules governing the
6269 media.  Before this change happened, the different forms of media were
6270 owned by separate media companies. Now, the media is increasingly
6271 owned by only a few companies. Indeed, after the changes that the FCC
6272 announced in June 2003, most expect that within a few years, we will
6273 live in a world where just three companies control more than 85 percent
6274 of the media.
6275 </p><p>
6276 These changes are of two sorts: the scope of concentration, and its
6277 nature.
6278 </p><a class="indexterm" name="idp9151168"></a><a class="indexterm" name="idp9151952"></a><a class="indexterm" name="idp9152784"></a><a class="indexterm" name="idp9153568"></a><a class="indexterm" name="idp9154384"></a><a class="indexterm" name="idp9155200"></a><p>
6279 Changes in scope are the easier ones to describe. As Senator John
6280 McCain summarized the data produced in the FCC's review of media
6281 ownership, <span class="quote">«<span class="quote">five companies control 85 percent of our media sources.</span>»</span><a href="#ftn.idp9156688" class="footnote" name="idp9156688"><sup class="footnote">[142]</sup></a>
6282 The five recording labels of Universal Music Group, BMG, Sony Music
6283 Entertainment, Warner Music Group, and EMI control 84.8 percent of the
6284 U.S. music market.<a href="#ftn.idp9157904" class="footnote" name="idp9157904"><sup class="footnote">[143]</sup></a>
6285 The <span class="quote">«<span class="quote">five largest cable companies pipe
6286 programming to 74 percent of the cable subscribers nationwide.</span>»</span><a href="#ftn.idp9160032" class="footnote" name="idp9160032"><sup class="footnote">[144]</sup></a>
6287 </p><p>
6288 The story with radio is even more dramatic. Before deregulation,
6289 the nation's largest radio broadcasting conglomerate owned fewer than
6290
6291 seventy-five stations. Today <span class="emphasis"><em>one</em></span> company owns
6292 more than 1,200 stations.  During that period of consolidation, the
6293 total number of radio owners dropped by 34 percent. Today, in most
6294 markets, the two largest broadcasters control 74 percent of that
6295 market's revenues. Overall, just four companies control 90 percent of
6296 the nation's radio advertising revenues.
6297 </p><a class="indexterm" name="idp9163584"></a><p>
6298 Newspaper ownership is becoming more concentrated as well.  Today,
6299 there are six hundred fewer daily newspapers in the United States than
6300 there were eighty years ago, and ten companies control half of the
6301 nation's circulation. There are twenty major newspaper publishers in
6302 the United States. The top ten film studios receive 99 percent of all
6303 film revenue. The ten largest cable companies account for 85 percent
6304 of all cable revenue. This is a market far from the free press the
6305 framers sought to protect. Indeed, it is a market that is quite well
6306 protected&#8212; by the market.
6307 </p><a class="indexterm" name="idp9164624"></a><p>
6308 Concentration in size alone is one thing. The more invidious
6309 change is in the nature of that concentration. As author James Fallows
6310 put it in a recent article about Rupert Murdoch,
6311 </p><div class="blockquote"><blockquote class="blockquote"><p>
6312 Murdoch's companies now constitute a production system
6313 unmatched in its integration. They supply content&#8212;Fox movies
6314 &#8230;  Fox TV shows &#8230; Fox-controlled sports broadcasts, plus
6315 newspapers and books. They sell the content to the public and to
6316 advertisers&#8212;in newspapers, on the broadcast network, on the
6317 cable channels. And they operate the physical distribution system
6318 through which the content reaches the customers. Murdoch's satellite
6319 systems now distribute News Corp. content in Europe and Asia; if
6320 Murdoch becomes DirecTV's largest single owner, that system will serve
6321 the same function in the United States.<a href="#ftn.idp9167424" class="footnote" name="idp9167424"><sup class="footnote">[145]</sup></a>
6322 </p></blockquote></div><p>
6323 The pattern with Murdoch is the pattern of modern media. Not
6324 just large companies owning many radio stations, but a few companies
6325 owning as many outlets of media as possible. A picture describes this
6326 pattern better than a thousand words could do:
6327 </p><div class="figure"><a name="fig-1761-pattern-modern-media-ownership"></a><p class="title"><b>Figure 10.19. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="100%"><tr><td align="center"><img src="images/pattern-modern-media-ownership.png" align="middle" width="100%"></td></tr></table></div></div></div><br class="figure-break"><p>
6328
6329 Does this concentration matter? Will it affect what is made, or
6330 what is distributed? Or is it merely a more efficient way to produce and
6331 distribute content?
6332 </p><p>
6333 My view was that concentration wouldn't matter. I thought it was
6334 nothing more than a more efficient financial structure. But now, after
6335 reading and listening to a barrage of creators try to convince me to the
6336 contrary, I am beginning to change my mind.
6337 </p><p>
6338 Here's a representative story that begins to suggest how this
6339 integration may matter.
6340 </p><a class="indexterm" name="idp9175920"></a><a class="indexterm" name="idp9176704"></a><a class="indexterm" name="idp9177488"></a><p>
6341 In 1969, Norman Lear created a pilot for <em class="citetitle">All in the Family</em>. He took
6342 the pilot to ABC. The network didn't like it. It was too edgy, they told
6343 Lear. Make it again. Lear made a second pilot, more edgy than the
6344 first. ABC was exasperated. You're missing the point, they told Lear.
6345 We wanted less edgy, not more.
6346 </p><p>
6347 Rather than comply, Lear simply took the show elsewhere. CBS
6348 was happy to have the series; ABC could not stop Lear from walking.
6349 The copyrights that Lear held assured an independence from network
6350 control.<a href="#ftn.idp9179920" class="footnote" name="idp9179920"><sup class="footnote">[146]</sup></a>
6351 </p><p>
6352
6353
6354 The network did not control those copyrights because the law forbade
6355 the networks from controlling the content they syndicated. The law
6356 required a separation between the networks and the content producers;
6357 that separation would guarantee Lear freedom. And as late as 1992,
6358 because of these rules, the vast majority of prime time
6359 television&#8212;75 percent of it&#8212;was <span class="quote">«<span class="quote">independent</span>»</span> of the
6360 networks.
6361 </p><p>
6362 In 1994, the FCC abandoned the rules that required this independence.
6363 After that change, the networks quickly changed the balance.  In 1985,
6364 there were twenty-five independent television production studios; in
6365 2002, only five independent television studios remained. <span class="quote">«<span class="quote">In 1992,
6366 only 15 percent of new series were produced for a network by a company
6367 it controlled. Last year, the percentage of shows produced by
6368 controlled companies more than quintupled to 77 percent.</span>»</span> <span class="quote">«<span class="quote">In 1992, 16
6369 new series were produced independently of conglomerate control, last
6370 year there was one.</span>»</span><a href="#ftn.idp9186480" class="footnote" name="idp9186480"><sup class="footnote">[147]</sup></a>
6371 In 2002, 75 percent of prime time television was owned by the networks
6372 that ran it. <span class="quote">«<span class="quote">In the ten-year period between 1992 and 2002, the number
6373 of prime time television hours per week produced by network studios
6374 increased over 200%, whereas the number of prime time television hours
6375 per week produced by independent studios decreased
6376 63%.</span>»</span><a href="#ftn.idp9189024" class="footnote" name="idp9189024"><sup class="footnote">[148]</sup></a>
6377 </p><a class="indexterm" name="idp9190016"></a><p>
6378 Today, another Norman Lear with another <em class="citetitle">All in the Family</em> would
6379 find that he had the choice either to make the show less edgy or to be
6380 fired: The content of any show developed for a network is increasingly
6381 owned by the network.
6382 </p><a class="indexterm" name="idp9191888"></a><a class="indexterm" name="idp9192704"></a><p>
6383 While the number of channels has increased dramatically, the ownership
6384 of those channels has narrowed to an ever smaller and smaller few. As
6385 Barry Diller said to Bill Moyers,
6386 </p><div class="blockquote"><blockquote class="blockquote"><p>
6387 Well, if you have companies that produce, that finance, that air on
6388 their channel and then distribute worldwide everything that goes
6389 through their controlled distribution system, then what you get is
6390 fewer and fewer actual voices participating in the process. [We
6391
6392 u]sed to have dozens and dozens of thriving independent production
6393 companies producing television programs. Now you have less than a
6394 handful.<a href="#ftn.idp9195376" class="footnote" name="idp9195376"><sup class="footnote">[149]</sup></a>
6395 </p></blockquote></div><p>
6396 This narrowing has an effect on what is produced. The product of such
6397 large and concentrated networks is increasingly homogenous.
6398 Increasingly safe. Increasingly sterile. The product of news shows
6399 from networks like this is increasingly tailored to the message the
6400 network wants to convey. This is not the communist party, though from
6401 the inside, it must feel a bit like the communist party. No one can
6402 question without risk of consequence&#8212;not necessarily banishment
6403 to Siberia, but punishment nonetheless. Independent, critical,
6404 different views are quashed. This is not the environment for a
6405 democracy.
6406 </p><a class="indexterm" name="idp9198336"></a><p>
6407 Economics itself offers a parallel that explains why this integration
6408 affects creativity. Clay Christensen has written about the <span class="quote">«<span class="quote">Innovator's
6409 Dilemma</span>»</span>: the fact that large traditional firms find it rational to ignore
6410 new, breakthrough technologies that compete with their core business.
6411 The same analysis could help explain why large, traditional media
6412 companies would find it rational to ignore new cultural trends.<a href="#ftn.idp9201040" class="footnote" name="idp9201040"><sup class="footnote">[150]</sup></a>
6413
6414 Lumbering giants not only don't, but should not, sprint. Yet if the
6415 field is only open to the giants, there will be far too little
6416 sprinting.
6417 <a class="indexterm" name="idp9204448"></a>
6418 </p><p>
6419 I don't think we know enough about the economics of the media
6420 market to say with certainty what concentration and integration will
6421 do. The efficiencies are important, and the effect on culture is hard to
6422 measure.
6423 </p><p>
6424 But there is a quintessentially obvious example that does strongly
6425 suggest the concern.
6426 </p><p>
6427 In addition to the copyright wars, we're in the middle of the drug
6428 wars. Government policy is strongly directed against the drug cartels;
6429 criminal and civil courts are filled with the consequences of this battle.
6430 </p><p>
6431 Let me hereby disqualify myself from any possible appointment to
6432 any position in government by saying I believe this war is a profound
6433 mistake. I am not pro drugs. Indeed, I come from a family once
6434
6435
6436 wrecked by drugs&#8212;though the drugs that wrecked my family were
6437 all quite legal. I believe this war is a profound mistake because the
6438 collateral damage from it is so great as to make waging the war
6439 insane.  When you add together the burdens on the criminal justice
6440 system, the desperation of generations of kids whose only real
6441 economic opportunities are as drug warriors, the queering of
6442 constitutional protections because of the constant surveillance this
6443 war requires, and, most profoundly, the total destruction of the legal
6444 systems of many South American nations because of the power of the
6445 local drug cartels, I find it impossible to believe that the marginal
6446 benefit in reduced drug consumption by Americans could possibly
6447 outweigh these costs.
6448 </p><p>
6449 You may not be convinced. That's fine. We live in a democracy, and it
6450 is through votes that we are to choose policy. But to do that, we
6451 depend fundamentally upon the press to help inform Americans about
6452 these issues.
6453 </p><a class="indexterm" name="idxadvertising3"></a><a class="indexterm" name="idxcommercials"></a><a class="indexterm" name="idxtelevisionadvertisingon"></a><a class="indexterm" name="idp9215152"></a><p>
6454 Beginning in 1998, the Office of National Drug Control Policy launched
6455 a media campaign as part of the <span class="quote">«<span class="quote">war on drugs.</span>»</span> The campaign produced
6456 scores of short film clips about issues related to illegal drugs. In
6457 one series (the Nick and Norm series) two men are in a bar, discussing
6458 the idea of legalizing drugs as a way to avoid some of the collateral
6459 damage from the war. One advances an argument in favor of drug
6460 legalization. The other responds in a powerful and effective way
6461 against the argument of the first. In the end, the first guy changes
6462 his mind (hey, it's television). The plug at the end is a damning
6463 attack on the pro-legalization campaign.
6464 </p><p>
6465 Fair enough. It's a good ad. Not terribly misleading. It delivers its
6466 message well. It's a fair and reasonable message.
6467 </p><p>
6468 But let's say you think it is a wrong message, and you'd like to run a
6469 countercommercial. Say you want to run a series of ads that try to
6470 demonstrate the extraordinary collateral harm that comes from the drug
6471 war. Can you do it?
6472 </p><p>
6473 Well, obviously, these ads cost lots of money. Assume you raise the
6474
6475 money. Assume a group of concerned citizens donates all the money in
6476 the world to help you get your message out. Can you be sure your
6477 message will be heard then?
6478 </p><a class="indexterm" name="idp9219536"></a><a class="indexterm" name="idp9220608"></a><a class="indexterm" name="idp9221424"></a><a class="indexterm" name="idp9222544"></a><p>
6479 No. You cannot. Television stations have a general policy of avoiding
6480 <span class="quote">«<span class="quote">controversial</span>»</span> ads. Ads sponsored by the government are deemed
6481 uncontroversial; ads disagreeing with the government are
6482 controversial.  This selectivity might be thought inconsistent with
6483 the First Amendment, but the Supreme Court has held that stations have
6484 the right to choose what they run. Thus, the major channels of
6485 commercial media will refuse one side of a crucial debate the
6486 opportunity to present its case.  And the courts will defend the
6487 rights of the stations to be this biased.<a href="#ftn.idp9224896" class="footnote" name="idp9224896"><sup class="footnote">[151]</sup></a>
6488 </p><a class="indexterm" name="idp9237456"></a><a class="indexterm" name="idp9238768"></a><p>
6489 I'd be happy to defend the networks' rights, as well&#8212;if we lived
6490 in a media market that was truly diverse. But concentration in the
6491 media throws that condition into doubt. If a handful of companies
6492 control access to the media, and that handful of companies gets to
6493 decide which political positions it will allow to be promoted on its
6494 channels, then in an obvious and important way, concentration
6495 matters. You might like the positions the handful of companies
6496 selects. But you should not like a world in which a mere few get to
6497 decide which issues the rest of us get to know about.
6498 </p><a class="indexterm" name="idp9241248"></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>
6499 There is something innocent and obvious about the claim of the
6500 copyright warriors that the government should <span class="quote">«<span class="quote">protect my property.</span>»</span>
6501 In the abstract, it is obviously true and, ordinarily, totally
6502 harmless. No sane sort who is not an anarchist could disagree.
6503 </p><p>
6504 But when we see how dramatically this <span class="quote">«<span class="quote">property</span>»</span> has changed&#8212;
6505 when we recognize how it might now interact with both technology and
6506 markets to mean that the effective constraint on the liberty to
6507 cultivate our culture is dramatically different&#8212;the claim begins
6508 to seem
6509
6510
6511 less innocent and obvious. Given (1) the power of technology to
6512 supplement the law's control, and (2) the power of concentrated
6513 markets to weaken the opportunity for dissent, if strictly enforcing
6514 the massively expanded <span class="quote">«<span class="quote">property</span>»</span> rights granted by copyright
6515 fundamentally changes the freedom within this culture to cultivate and
6516 build upon our past, then we have to ask whether this property should
6517 be redefined.
6518 </p><p>
6519 Not starkly. Or absolutely. My point is not that we should abolish
6520 copyright or go back to the eighteenth century. That would be a total
6521 mistake, disastrous for the most important creative enterprises within
6522 our culture today.
6523 </p><p>
6524 But there is a space between zero and one, Internet culture
6525 notwithstanding.  And these massive shifts in the effective power of
6526 copyright regulation, tied to increased concentration of the content
6527 industry and resting in the hands of technology that will increasingly
6528 enable control over the use of culture, should drive us to consider
6529 whether another adjustment is called for. Not an adjustment that
6530 increases copyright's power. Not an adjustment that increases its
6531 term. Rather, an adjustment to restore the balance that has
6532 traditionally defined copyright's regulation&#8212;a weakening of that
6533 regulation, to strengthen creativity.
6534 </p><p>
6535 Copyright law has not been a rock of Gibraltar. It's not a set of
6536 constant commitments that, for some mysterious reason, teenagers and
6537 geeks now flout. Instead, copyright power has grown dramatically in a
6538 short period of time, as the technologies of distribution and creation
6539 have changed and as lobbyists have pushed for more control by
6540 copyright holders. Changes in the past in response to changes in
6541 technology suggest that we may well need similar changes in the
6542 future. And these changes have to be <span class="emphasis"><em>reductions</em></span>
6543 in the scope of copyright, in response to the extraordinary increase
6544 in control that technology and the market enable.
6545 </p><p>
6546 For the single point that is lost in this war on pirates is a point that
6547 we see only after surveying the range of these changes. When you add
6548
6549 together the effect of changing law, concentrated markets, and
6550 changing technology, together they produce an astonishing conclusion:
6551 <span class="emphasis"><em>Never in our history have fewer had a legal right to control
6552 more of the development of our culture than now</em></span>.
6553 </p><p>
6554 Not when copyrights were perpetual, for when copyrights were
6555 perpetual, they affected only that precise creative work. Not when
6556 only publishers had the tools to publish, for the market then was much
6557 more diverse. Not when there were only three television networks, for
6558 even then, newspapers, film studios, radio stations, and publishers
6559 were independent of the networks. <span class="emphasis"><em>Never</em></span> has
6560 copyright protected such a wide range of rights, against as broad a
6561 range of actors, for a term that was remotely as long. This form of
6562 regulation&#8212;a tiny regulation of a tiny part of the creative
6563 energy of a nation at the founding&#8212;is now a massive regulation
6564 of the overall creative process. Law plus technology plus the market
6565 now interact to turn this historically benign regulation into the most
6566 significant regulation of culture that our free society has
6567 known.<a href="#ftn.idp9252784" class="footnote" name="idp9252784"><sup class="footnote">[152]</sup></a>
6568 </p><p>
6569 <span class="strong"><strong>This has been</strong></span> a long chapter. Its
6570 point can now be briefly stated.
6571 </p><p>
6572 At the start of this book, I distinguished between commercial and
6573 noncommercial culture. In the course of this chapter, I have
6574 distinguished between copying a work and transforming it. We can now
6575 combine these two distinctions and draw a clear map of the changes
6576 that copyright law has undergone.  In 1790, the law looked like this:
6577 </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>
6578 The act of publishing a map, chart, and book was regulated by
6579 copyright law. Nothing else was. Transformations were free. And as
6580 copyright attached only with registration, and only those who intended
6581
6582
6583 to benefit commercially would register, copying through publishing of
6584 noncommercial work was also free.
6585 </p><p>
6586 By the end of the nineteenth century, the law had changed to this:
6587 </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>
6588 Derivative works were now regulated by copyright law&#8212;if
6589 published, which again, given the economics of publishing at the time,
6590 means if offered commercially. But noncommercial publishing and
6591 transformation were still essentially free.
6592 </p><p>
6593 In 1909 the law changed to regulate copies, not publishing, and after
6594 this change, the scope of the law was tied to technology. As the
6595 technology of copying became more prevalent, the reach of the law
6596 expanded.  Thus by 1975, as photocopying machines became more common,
6597 we could say the law began to look like this:
6598 </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>
6599 The law was interpreted to reach noncommercial copying through, say,
6600 copy machines, but still much of copying outside of the commercial
6601 market remained free. But the consequence of the emergence of digital
6602 technologies, especially in the context of a digital network, means
6603 that the law now looks like this:
6604 </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>
6605 Every realm is governed by copyright law, whereas before most
6606 creativity was not. The law now regulates the full range of
6607 creativity&#8212;
6608
6609 commercial or not, transformative or not&#8212;with the same rules
6610 designed to regulate commercial publishers.
6611 </p><p>
6612 Obviously, copyright law is not the enemy. The enemy is regulation
6613 that does no good. So the question that we should be asking just now
6614 is whether extending the regulations of copyright law into each of
6615 these domains actually does any good.
6616 </p><p>
6617 I have no doubt that it does good in regulating commercial copying.
6618 But I also have no doubt that it does more harm than good when
6619 regulating (as it regulates just now) noncommercial copying and,
6620 especially, noncommercial transformation. And increasingly, for the
6621 reasons sketched especially in chapters
6622 <a class="xref" href="#recorders" title="Chapter 7. Chapter Seven: Recorders">7</a> and
6623 <a class="xref" href="#transformers" title="Chapter 8. Chapter Eight: Transformers">8</a>, one
6624 might well wonder whether it does more harm than good for commercial
6625 transformation.  More commercial transformative work would be created
6626 if derivative rights were more sharply restricted.
6627 </p><p>
6628 The issue is therefore not simply whether copyright is property. Of
6629 course copyright is a kind of <span class="quote">«<span class="quote">property,</span>»</span> and of course, as with any
6630 property, the state ought to protect it. But first impressions
6631 notwithstanding, historically, this property right (as with all
6632 property rights<a href="#ftn.idp9295184" class="footnote" name="idp9295184"><sup class="footnote">[153]</sup></a>)
6633 has been crafted to balance the important need to give authors and
6634 artists incentives with the equally important need to assure access to
6635 creative work. This balance has always been struck in light of new
6636 technologies.  And for almost half of our tradition, the <span class="quote">«<span class="quote">copyright</span>»</span>
6637 did not control <span class="emphasis"><em>at all</em></span> the freedom of others to
6638 build upon or transform a creative work. American culture was born
6639 free, and for almost 180 years our country consistently protected a
6640 vibrant and rich free culture.
6641 </p><a class="indexterm" name="idp9299520"></a><p>
6642 We achieved that free culture because our law respected important
6643 limits on the scope of the interests protected by <span class="quote">«<span class="quote">property.</span>»</span> The very
6644 birth of <span class="quote">«<span class="quote">copyright</span>»</span> as a statutory right recognized those limits, by
6645 granting copyright owners protection for a limited time only (the
6646 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
6647 animated by a similar concern that is increasingly under strain as the
6648 costs of exercising any fair use right become unavoidably high (the
6649 story of chapter <a class="xref" href="#recorders" title="Chapter 7. Chapter Seven: Recorders">7</a>). Adding
6650
6651 statutory rights where markets might stifle innovation is another
6652 familiar limit on the property right that copyright is (chapter <a class="xref" href="#transformers" title="Chapter 8. Chapter Eight: Transformers">8</a>). And
6653 granting archives and libraries a broad freedom to collect, claims of
6654 property notwithstanding, is a crucial part of guaranteeing the soul
6655 of a culture (chapter <a class="xref" href="#collectors" title="Chapter 9. Chapter Nine: Collectors">9</a>). Free cultures, like free markets, are built
6656 with property. But the nature of the property that builds a free
6657 culture is very different from the extremist vision that dominates the
6658 debate today.
6659 </p><p>
6660 Free culture is increasingly the casualty in this war on piracy. In
6661 response to a real, if not yet quantified, threat that the
6662 technologies of the Internet present to twentieth-century business
6663 models for producing and distributing culture, the law and technology
6664 are being transformed in a way that will undermine our tradition of
6665 free culture. The property right that is copyright is no longer the
6666 balanced right that it was, or was intended to be. The property right
6667 that is copyright has become unbalanced, tilted toward an extreme. The
6668 opportunity to create and transform becomes weakened in a world in
6669 which creation requires permission and creativity must check with a
6670 lawyer.
6671 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp8437712" class="footnote"><p><a href="#idp8437712" class="para"><sup class="para">[118] </sup></a>
6672
6673 Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R.
6674 4794, H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the
6675 Subcommittee on Courts, Civil Liberties, and the Administration of
6676 Justice of the Committee on the Judiciary of the House of
6677 Representatives, 97th Cong., 2nd sess. (1982): 65 (testimony of Jack
6678 Valenti).
6679 </p></div><div id="ftn.idp8445088" class="footnote"><p><a href="#idp8445088" class="para"><sup class="para">[119] </sup></a>
6680
6681 Lawyers speak of <span class="quote">«<span class="quote">property</span>»</span> not as an absolute thing, but as a bundle
6682 of rights that are sometimes associated with a particular
6683 object. Thus, my <span class="quote">«<span class="quote">property right</span>»</span> to my car gives me the right to
6684 exclusive use, but not the right to drive at 150 miles an hour. For
6685 the best effort to connect the ordinary meaning of <span class="quote">«<span class="quote">property</span>»</span> to
6686 <span class="quote">«<span class="quote">lawyer talk,</span>»</span> see Bruce Ackerman, <em class="citetitle">Private Property and the
6687 Constitution</em> (New Haven: Yale University Press, 1977), 26&#8211;27.
6688 </p></div><div id="ftn.idp8507600" class="footnote"><p><a href="#idp8507600" class="para"><sup class="para">[120] </sup></a>
6689
6690 By describing the way law affects the other three modalities, I don't
6691 mean to suggest that the other three don't affect law. Obviously, they
6692 do. Law's only distinction is that it alone speaks as if it has a
6693 right self-consciously to change the other three. The right of the
6694 other three is more timidly expressed.  See Lawrence Lessig, <em class="citetitle">Code: And
6695 Other Laws of Cyberspace</em> (New York: Basic Books, 1999): 90&#8211;95;
6696 Lawrence Lessig, <span class="quote">«<span class="quote">The New Chicago School,</span>»</span> <em class="citetitle">Journal of Legal Studies</em>,
6697 June 1998.
6698 </p></div><div id="ftn.idp8517744" class="footnote"><p><a href="#idp8517744" class="para"><sup class="para">[121] </sup></a>
6699
6700 Some people object to this way of talking about <span class="quote">«<span class="quote">liberty.</span>»</span> They object
6701 because their focus when considering the constraints that exist at any
6702 particular moment are constraints imposed exclusively by the
6703 government. For instance, if a storm destroys a bridge, these people
6704 think it is meaningless to say that one's liberty has been
6705 restrained. A bridge has washed out, and it's harder to get from one
6706 place to another. To talk about this as a loss of freedom, they say,
6707 is to confuse the stuff of politics with the vagaries of ordinary
6708 life.  I don't mean to deny the value in this narrower view, which
6709 depends upon the context of the inquiry. I do, however, mean to argue
6710 against any insistence that this narrower view is the only proper view
6711 of liberty. As I argued in <em class="citetitle">Code</em>, we come from a
6712 long tradition of political thought with a broader focus than the
6713 narrow question of what the government did when.  John Stuart Mill
6714 defended freedom of speech, for example, from the tyranny of narrow
6715 minds, not from the fear of government prosecution; John Stuart Mill,
6716 <em class="citetitle">On Liberty</em> (Indiana: Hackett Publishing Co.,
6717 1978), 19.  John R. Commons famously defended the economic freedom of
6718 labor from constraints imposed by the market; John R. Commons, <span class="quote">«<span class="quote">The
6719 Right to Work,</span>»</span> in Malcom Rutherford and Warren J. Samuels, eds.,
6720 <em class="citetitle">John R. Commons: Selected Essays</em> (London:
6721 Routledge: 1997), 62. The Americans with Disabilities Act increases
6722 the liberty of people with physical disabilities by changing the
6723 architecture of certain public places, thereby making access to those
6724 places easier; 42 <em class="citetitle">United States Code</em>, section
6725 12101 (2000).  Each of these interventions to change existing
6726 conditions changes the liberty of a particular group. The effect of
6727 those interventions should be accounted for in order to understand the
6728 effective liberty that each of these groups might face.
6729 <a class="indexterm" name="idp8522928"></a>
6730 <a class="indexterm" name="idp8523760"></a>
6731 <a class="indexterm" name="idp8524576"></a>
6732 <a class="indexterm" name="idp8525424"></a>
6733 </p></div><div id="ftn.idp8574896" class="footnote"><p><a href="#idp8574896" class="para"><sup class="para">[122] </sup></a>
6734
6735 See Geoffrey Smith, <span class="quote">«<span class="quote">Film vs. Digital: Can Kodak Build a Bridge?</span>»</span>
6736 BusinessWeek online, 2 August 1999, available at
6737 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #23</a>. For a more
6738 recent analysis of Kodak's place in the market, see Chana
6739 R. Schoenberger, <span class="quote">«<span class="quote">Can Kodak Make Up for Lost Moments?</span>»</span> Forbes.com, 6
6740 October 2003, available at
6741 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #24</a>.
6742 </p></div><div id="ftn.idp8588096" class="footnote"><p><a href="#idp8588096" class="para"><sup class="para">[123] </sup></a>
6743
6744 Fred Warshofsky, <em class="citetitle">The Patent Wars</em> (New York: Wiley, 1994), 170&#8211;71.
6745 </p></div><div id="ftn.idp8618768" class="footnote"><p><a href="#idp8618768" class="para"><sup class="para">[124] </sup></a>
6746
6747 See, for example, James Boyle, <span class="quote">«<span class="quote">A Politics of Intellectual Property:
6748 Environmentalism for the Net?</span>»</span> <em class="citetitle">Duke Law Journal</em> 47 (1997): 87.
6749 </p></div><div id="ftn.idp8687472" class="footnote"><p><a href="#idp8687472" class="para"><sup class="para">[125] </sup></a>
6750
6751 William W. Crosskey, <em class="citetitle">Politics and the Constitution in the History of
6752 the United States</em> (London: Cambridge University Press, 1953), vol. 1,
6753 485&#8211;86: <span class="quote">«<span class="quote">extinguish[ing], by plain implication of `the supreme
6754 Law of the Land,' <span class="emphasis"><em>the perpetual rights which authors had, or
6755 were supposed by some to have, under the Common Law</em></span></span>»</span>
6756 (emphasis added).
6757 <a class="indexterm" name="idp8689760"></a>
6758 </p></div><div id="ftn.idp8699280" class="footnote"><p><a href="#idp8699280" class="para"><sup class="para">[126] </sup></a>
6759
6760 Although 13,000 titles were published in the United States from 1790
6761 to 1799, only 556 copyright registrations were filed; John Tebbel, <em class="citetitle">A
6762 History of Book Publishing in the United States</em>, vol. 1, <em class="citetitle">The Creation
6763 of an Industry, 1630&#8211;1865</em> (New York: Bowker, 1972), 141. Of the 21,000
6764 imprints recorded before 1790, only twelve were copyrighted under the
6765 1790 act; William J. Maher, <em class="citetitle">Copyright Term, Retrospective Extension
6766 and the Copyright Law of 1790 in Historical Context</em>, 7&#8211;10 (2002),
6767 available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
6768 #25</a>.  Thus, the overwhelming majority of works fell
6769 immediately into the public domain. Even those works that were
6770 copyrighted fell into the public domain quickly, because the term of
6771 copyright was short. The initial term of copyright was fourteen years,
6772 with the option of renewal for an additional fourteen years. Copyright
6773 Act of May 31, 1790, §1, 1 stat. 124.  </p></div><div id="ftn.idp8707552" class="footnote"><p><a href="#idp8707552" class="para"><sup class="para">[127] </sup></a>
6774
6775 Few copyright holders ever chose to renew their copyrights. For
6776 instance, of the 25,006 copyrights registered in 1883, only 894 were
6777 renewed in 1910. For a year-by-year analysis of copyright renewal
6778 rates, see Barbara A. Ringer, <span class="quote">«<span class="quote">Study No. 31: Renewal of Copyright,</span>»</span>
6779 <em class="citetitle">Studies on Copyright</em>, vol. 1 (New York: Practicing Law Institute,
6780 1963), 618. For a more recent and comprehensive analysis, see William
6781 M. Landes and Richard A.  Posner, <span class="quote">«<span class="quote">Indefinitely Renewable Copyright,</span>»</span>
6782 <em class="citetitle">University of Chicago Law Review</em> 70 (2003): 471, 498&#8211;501, and
6783 accompanying figures.  </p></div><div id="ftn.idp8714624" class="footnote"><p><a href="#idp8714624" class="para"><sup class="para">[128] </sup></a>
6784
6785 See Ringer, ch. 9, n. 2.  </p></div><div id="ftn.idp8740832" class="footnote"><p><a href="#idp8740832" class="para"><sup class="para">[129] </sup></a>
6786
6787 These statistics are understated. Between the years 1910 and 1962 (the
6788 first year the renewal term was extended), the average term was never
6789 more than thirty-two years, and averaged thirty years. See Landes and
6790 Posner, <span class="quote">«<span class="quote">Indefinitely Renewable Copyright,</span>»</span> loc. cit.
6791 </p></div><div id="ftn.idp8779888" class="footnote"><p><a href="#idp8779888" class="para"><sup class="para">[130] </sup></a>
6792
6793 See Thomas Bender and David Sampliner, <span class="quote">«<span class="quote">Poets, Pirates, and the
6794 Creation of American Literature,</span>»</span> 29 <em class="citetitle">New York University Journal of
6795 International Law and Politics</em> 255 (1997), and James Gilraeth, ed.,
6796 Federal Copyright Records, 1790&#8211;1800 (U.S. G.P.O., 1987).
6797
6798 </p></div><div id="ftn.idp8797248" class="footnote"><p><a href="#idp8797248" class="para"><sup class="para">[131] </sup></a>
6799
6800 Jonathan Zittrain, <span class="quote">«<span class="quote">The Copyright Cage,</span>»</span> <em class="citetitle">Legal
6801 Affairs</em>, July/August 2003, available at
6802 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #26</a>.
6803 <a class="indexterm" name="idp8799744"></a>
6804 </p></div><div id="ftn.idp8801472" class="footnote"><p><a href="#idp8801472" class="para"><sup class="para">[132] </sup></a>
6805
6806 Professor Rubenfeld has presented a powerful constitutional argument
6807 about the difference that copyright law should draw (from the
6808 perspective of the First Amendment) between mere <span class="quote">«<span class="quote">copies</span>»</span> and
6809 derivative works. See Jed Rubenfeld, <span class="quote">«<span class="quote">The Freedom of Imagination:
6810 Copyright's Constitutionality,</span>»</span> <em class="citetitle">Yale Law
6811 Journal</em> 112 (2002): 1&#8211;60 (see especially
6812 pp. 53&#8211;59).
6813 <a class="indexterm" name="idp8803680"></a>
6814 </p></div><div id="ftn.idp8817904" class="footnote"><p><a href="#idp8817904" class="para"><sup class="para">[133] </sup></a>
6815
6816 This is a simplification of the law, but not much of one. The law
6817 certainly regulates more than <span class="quote">«<span class="quote">copies</span>»</span>&#8212;a public performance of a
6818 copyrighted song, for example, is regulated even though performance
6819 per se doesn't make a copy; 17 <em class="citetitle">United States Code</em>, section
6820 106(4). And it certainly sometimes doesn't regulate a <span class="quote">«<span class="quote">copy</span>»</span>; 17
6821 <em class="citetitle">United States Code</em>, section 112(a). But the presumption under the
6822 existing law (which regulates <span class="quote">«<span class="quote">copies;</span>»</span> 17 <em class="citetitle">United States Code</em>, section
6823 102) is that if there is a copy, there is a right.
6824 </p></div><div id="ftn.idp8830912" class="footnote"><p><a href="#idp8830912" class="para"><sup class="para">[134] </sup></a>
6825
6826 Thus, my argument is not that in each place that copyright law
6827 extends, we should repeal it. It is instead that we should have a good
6828 argument for its extending where it does, and should not determine its
6829 reach on the basis of arbitrary and automatic changes caused by
6830 technology.
6831 </p></div><div id="ftn.idp8880464" class="footnote"><p><a href="#idp8880464" class="para"><sup class="para">[135] </sup></a>
6832
6833 I don't mean <span class="quote">«<span class="quote">nature</span>»</span> in the sense that it couldn't be different, but
6834 rather that its present instantiation entails a copy. Optical networks
6835 need not make copies of content they transmit, and a digital network
6836 could be designed to delete anything it copies so that the same number
6837 of copies remain.
6838 </p></div><div id="ftn.idp8978016" class="footnote"><p><a href="#idp8978016" class="para"><sup class="para">[136] </sup></a>
6839
6840 See David Lange, <span class="quote">«<span class="quote">Recognizing the Public Domain,</span>»</span> <em class="citetitle">Law and
6841 Contemporary Problems</em> 44 (1981): 172&#8211;73.
6842 </p></div><div id="ftn.idp8980608" class="footnote"><p><a href="#idp8980608" class="para"><sup class="para">[137] </sup></a>
6843
6844 <a class="indexterm" name="idp8981312"></a>
6845 Ibid. See also Vaidhyanathan, <em class="citetitle">Copyrights and
6846 Copywrongs</em>, 1&#8211;3.
6847 </p></div><div id="ftn.idp9018672" class="footnote"><p><a href="#idp9018672" class="para"><sup class="para">[138] </sup></a>
6848
6849 In principle, a contract might impose a requirement on me. I might,
6850 for example, buy a book from you that includes a contract that says I
6851 will read it only three times, or that I promise to read it three
6852 times. But that obligation (and the limits for creating that
6853 obligation) would come from the contract, not from copyright law, and
6854 the obligations of contract would not necessarily pass to anyone who
6855 subsequently acquired the book.
6856 </p></div><div id="ftn.idp9070080" class="footnote"><p><a href="#idp9070080" class="para"><sup class="para">[139] </sup></a>
6857
6858 See Pamela Samuelson, <span class="quote">«<span class="quote">Anticircumvention Rules: Threat to Science,</span>»</span>
6859 <em class="citetitle">Science</em> 293 (2001): 2028; Brendan I. Koerner, <span class="quote">«<span class="quote">Play Dead: Sony Muzzles
6860 the Techies Who Teach a Robot Dog New Tricks,</span>»</span> <em class="citetitle">American Prospect</em>,
6861 January 2002; <span class="quote">«<span class="quote">Court Dismisses Computer Scientists' Challenge to
6862 DMCA,</span>»</span> <em class="citetitle">Intellectual Property Litigation Reporter</em>, 11 December 2001; Bill
6863 Holland, <span class="quote">«<span class="quote">Copyright Act Raising Free-Speech Concerns,</span>»</span> <em class="citetitle">Billboard</em>,
6864 May 2001; Janelle Brown, <span class="quote">«<span class="quote">Is the RIAA Running Scared?</span>»</span> Salon.com,
6865 April  2001; Electronic Frontier Foundation, <span class="quote">«<span class="quote">Frequently Asked
6866 Questions about <em class="citetitle">Felten and USENIX</em> v. <em class="citetitle">RIAA</em> Legal Case,</span>»</span> available at
6867 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #27</a>.
6868 <a class="indexterm" name="idp9076960"></a>
6869 </p></div><div id="ftn.idp9114096" class="footnote"><p><a href="#idp9114096" class="para"><sup class="para">[140] </sup></a>
6870
6871 <a class="indexterm" name="idp9114832"></a>
6872 <em class="citetitle">Sony Corporation of America</em> v. <em class="citetitle">Universal City Studios, Inc</em>., 464 U.S. 417,
6873 455 fn. 27 (1984). Rogers never changed his view about the VCR. See
6874 James Lardner, <em class="citetitle">Fast Forward: Hollywood, the Japanese, and the Onslaught of
6875 the VCR</em> (New York: W. W. Norton, 1987), 270&#8211;71.
6876 <a class="indexterm" name="idp8982608"></a>
6877 </p></div><div id="ftn.idp9140688" class="footnote"><p><a href="#idp9140688" class="para"><sup class="para">[141] </sup></a>
6878
6879 For an early and prescient analysis, see Rebecca Tushnet, <span class="quote">«<span class="quote">Legal Fictions,
6880 Copyright, Fan Fiction, and a New Common Law,</span>»</span> <em class="citetitle">Loyola of Los Angeles
6881 Entertainment Law Journal</em> 17 (1997): 651.
6882 </p></div><div id="ftn.idp9156688" class="footnote"><p><a href="#idp9156688" class="para"><sup class="para">[142] </sup></a>
6883
6884 FCC Oversight: Hearing Before the Senate Commerce, Science and
6885 Transportation Committee, 108th Cong., 1st sess. (22 May 2003)
6886 (statement of Senator John McCain).  </p></div><div id="ftn.idp9157904" class="footnote"><p><a href="#idp9157904" class="para"><sup class="para">[143] </sup></a>
6887
6888 Lynette Holloway, <span class="quote">«<span class="quote">Despite a Marketing Blitz, CD Sales Continue to
6889 Slide,</span>»</span> <em class="citetitle">New York Times</em>, 23 December 2002.
6890 </p></div><div id="ftn.idp9160032" class="footnote"><p><a href="#idp9160032" class="para"><sup class="para">[144] </sup></a>
6891
6892 Molly Ivins, <span class="quote">«<span class="quote">Media Consolidation Must Be Stopped,</span>»</span> <em class="citetitle">Charleston Gazette</em>,
6893 31 May 2003.
6894 </p></div><div id="ftn.idp9167424" class="footnote"><p><a href="#idp9167424" class="para"><sup class="para">[145] </sup></a>
6895
6896 James Fallows, <span class="quote">«<span class="quote">The Age of Murdoch,</span>»</span> <em class="citetitle">Atlantic Monthly</em> (September
6897 2003): 89.
6898 <a class="indexterm" name="idp9169536"></a>
6899 </p></div><div id="ftn.idp9179920" class="footnote"><p><a href="#idp9179920" class="para"><sup class="para">[146] </sup></a>
6900
6901 Leonard Hill, <span class="quote">«<span class="quote">The Axis of Access,</span>»</span> remarks before Weidenbaum Center
6902 Forum, <span class="quote">«<span class="quote">Entertainment Economics: The Movie Industry,</span>»</span> St. Louis,
6903 Missouri, 3 April 2003 (transcript of prepared remarks available at
6904 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #28</a>;
6905 for the Lear story, not included in the prepared remarks, see
6906 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #29</a>).
6907 </p></div><div id="ftn.idp9186480" class="footnote"><p><a href="#idp9186480" class="para"><sup class="para">[147] </sup></a>
6908
6909 NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media
6910 Ownership Before the Senate Commerce Committee, 108th Cong., 1st
6911 sess. (2003) (testimony of Gene Kimmelman on behalf of Consumers Union
6912 and the Consumer Federation of America), available at
6913 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #30</a>. Kimmelman
6914 quotes Victoria Riskin, president of Writers Guild of America, West,
6915 in her Remarks at FCC En Banc Hearing, Richmond, Virginia, 27 February
6916 2003.
6917 </p></div><div id="ftn.idp9189024" class="footnote"><p><a href="#idp9189024" class="para"><sup class="para">[148] </sup></a>
6918
6919 Ibid.
6920 </p></div><div id="ftn.idp9195376" class="footnote"><p><a href="#idp9195376" class="para"><sup class="para">[149] </sup></a>
6921
6922 <span class="quote">«<span class="quote">Barry Diller Takes on Media Deregulation,</span>»</span> <em class="citetitle">Now with Bill Moyers</em>, Bill
6923 Moyers, 25 April 2003, edited transcript available at
6924 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #31</a>.
6925 </p></div><div id="ftn.idp9201040" class="footnote"><p><a href="#idp9201040" class="para"><sup class="para">[150] </sup></a>
6926
6927 Clayton M. Christensen, <em class="citetitle">The Innovator's Dilemma: The
6928 Revolutionary National Bestseller that Changed the Way We Do Business</em>
6929 (Cambridge: Harvard Business School Press, 1997). Christensen
6930 acknowledges that the idea was first suggested by Dean Kim Clark. See
6931 Kim B. Clark, <span class="quote">«<span class="quote">The Interaction of Design Hierarchies and Market
6932 Concepts in Technological Evolution,</span>»</span> <em class="citetitle">Research Policy</em> 14 (1985):
6933 235&#8211;51. For a more recent study, see Richard Foster and Sarah
6934 Kaplan, <em class="citetitle">Creative Destruction: Why Companies That Are Built to Last
6935 Underperform the Market&#8212;and How to Successfully Transform Them</em>
6936 (New York: Currency/Doubleday, 2001).  </p></div><div id="ftn.idp9224896" class="footnote"><p><a href="#idp9224896" class="para"><sup class="para">[151] </sup></a>
6937
6938 <a class="indexterm" name="idp9225632"></a>
6939 <a class="indexterm" name="idp9226384"></a>
6940 <a class="indexterm" name="idp9227200"></a>
6941 <a class="indexterm" name="idp9228032"></a>
6942 <a class="indexterm" name="idp9228864"></a>
6943 <a class="indexterm" name="idp9229680"></a>
6944 <a class="indexterm" name="idp9230512"></a>
6945 The Marijuana Policy Project, in February 2003, sought to place ads
6946 that directly responded to the Nick and Norm series on stations within
6947 the Washington, D.C., area. Comcast rejected the ads as <span class="quote">«<span class="quote">against
6948 [their] policy.</span>»</span>  The local NBC affiliate, WRC, rejected the ads
6949 without reviewing them. The local ABC affiliate, WJOA, originally
6950 agreed to run the ads and accepted payment to do so, but later decided
6951 not to run the ads and returned the collected fees. Interview with
6952 Neal Levine, 15 October 2003.  These restrictions are, of course, not
6953 limited to drug policy. See, for example, Nat Ives, <span class="quote">«<span class="quote">On the
6954 Issue of an Iraq War, Advocacy Ads Meet with Rejection from TV
6955 Networks,</span>»</span> <em class="citetitle">New York Times</em>, 13 March
6956 2003, C4.  Outside of election-related air time there is very little
6957 that the FCC or the courts are willing to do to even the playing
6958 field. For a general overview, see Rhonda Brown, <span class="quote">«<span class="quote">Ad Hoc Access:
6959 The Regulation of Editorial Advertising on Television and
6960 Radio,</span>»</span> <em class="citetitle">Yale Law and Policy Review</em> 6
6961 (1988): 449&#8211;79, and for a more recent summary of the stance of
6962 the FCC and the courts, see <em class="citetitle">Radio-Television News Directors
6963 Association</em> v. <em class="citetitle">FCC</em>, 184 F. 3d 872
6964 (D.C. Cir. 1999). Municipal authorities exercise the same authority as
6965 the networks. In a recent example from San Francisco, the San
6966 Francisco transit authority rejected an ad that criticized its Muni
6967 diesel buses. Phillip Matier and Andrew Ross, <span class="quote">«<span class="quote">Antidiesel Group
6968 Fuming After Muni Rejects Ad,</span>»</span> SFGate.com, 16 June 2003,
6969 available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
6970 #32</a>. The ground was that the criticism was <span class="quote">«<span class="quote">too
6971 controversial.</span>»</span>
6972 </p></div><div id="ftn.idp9252784" class="footnote"><p><a href="#idp9252784" class="para"><sup class="para">[152] </sup></a>
6973
6974 <a class="indexterm" name="idp9253856"></a>
6975 Siva Vaidhyanathan captures a similar point in his <span class="quote">«<span class="quote">four surrenders</span>»</span> of
6976 copyright law in the digital age. See Vaidhyanathan, 159&#8211;60.
6977 </p></div><div id="ftn.idp9295184" class="footnote"><p><a href="#idp9295184" class="para"><sup class="para">[153] </sup></a>
6978
6979 <a class="indexterm" name="idp9295920"></a>
6980 It was the single most important contribution of the legal realist
6981 movement to demonstrate that all property rights are always crafted to
6982 balance public and private interests. See Thomas C. Grey, <span class="quote">«<span class="quote">The
6983 Disintegration of Property,</span>»</span> in <em class="citetitle">Nomos XXII: Property</em>, J. Roland
6984 Pennock and John W.  Chapman, eds. (New York: New York University
6985 Press, 1980).
6986 </p></div></div></div></div><div class="part"><div class="titlepage"><div><div><h1 class="title"><a name="c-puzzles"></a>Part III. Puzzles</h1></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="chimera"></a>Chapter 11. Chapter Eleven: Chimera</h2></div></div></div><a class="indexterm" name="idxchimera"></a><a class="indexterm" name="idxwells"></a><a class="indexterm" name="idxtcotb"></a><p>
6987 <span class="strong"><strong>In a well-known</strong></span> short story by
6988 H. G. Wells, a mountain climber named Nunez trips (literally, down an
6989 ice slope) into an unknown and isolated valley in the Peruvian
6990 Andes.<a href="#ftn.idp9317712" class="footnote" name="idp9317712"><sup class="footnote">[154]</sup></a>
6991 The valley is extraordinarily beautiful, with <span class="quote">«<span class="quote">sweet water, pasture,
6992 an even climate, slopes of rich brown soil with tangles of a shrub
6993 that bore an excellent fruit.</span>»</span> But the villagers are all blind. Nunez
6994 takes this as an opportunity. <span class="quote">«<span class="quote">In the Country of the Blind,</span>»</span> he tells
6995 himself, <span class="quote">«<span class="quote">the One-Eyed Man is King.</span>»</span>  So he resolves to live with the
6996 villagers to explore life as a king.
6997 </p><p>
6998 Things don't go quite as he planned. He tries to explain the idea of
6999 sight to the villagers. They don't understand. He tells them they are
7000 <span class="quote">«<span class="quote">blind.</span>»</span> They don't have the word <em class="citetitle">blind</em>. They think he's just thick.
7001 Indeed, as they increasingly notice the things he can't do (hear the
7002 sound of grass being stepped on, for example), they increasingly try
7003 to control him. He, in turn, becomes increasingly frustrated. <span class="quote">«<span class="quote">`You
7004 don't understand,' he cried, in a voice that was meant to be great and
7005 resolute, and which broke. `You are blind and I can see. Leave me
7006 alone!'</span>»</span>
7007 </p><p>
7008
7009 The villagers don't leave him alone. Nor do they see (so to speak) the
7010 virtue of his special power. Not even the ultimate target of his
7011 affection, a young woman who to him seems <span class="quote">«<span class="quote">the most beautiful thing in
7012 the whole of creation,</span>»</span> understands the beauty of sight. Nunez's
7013 description of what he sees <span class="quote">«<span class="quote">seemed to her the most poetical of
7014 fancies, and she listened to his description of the stars and the
7015 mountains and her own sweet white-lit beauty as though it was a guilty
7016 indulgence.</span>»</span>  <span class="quote">«<span class="quote">She did not believe,</span>»</span> Wells tells us, and <span class="quote">«<span class="quote">she could
7017 only half understand, but she was mysteriously delighted.</span>»</span>
7018 </p><p>
7019 When Nunez announces his desire to marry his <span class="quote">«<span class="quote">mysteriously delighted</span>»</span>
7020 love, the father and the village object. <span class="quote">«<span class="quote">You see, my dear,</span>»</span> her
7021 father instructs, <span class="quote">«<span class="quote">he's an idiot. He has delusions. He can't do
7022 anything right.</span>»</span> They take Nunez to the village doctor.
7023 </p><p>
7024 After a careful examination, the doctor gives his opinion. <span class="quote">«<span class="quote">His brain
7025 is affected,</span>»</span> he reports.
7026 </p><p>
7027 <span class="quote">«<span class="quote">What affects it?</span>»</span> the father asks.  <span class="quote">«<span class="quote">Those queer things that are
7028 called the eyes &#8230; are diseased &#8230; in such a way as to affect
7029 his brain.</span>»</span>
7030 </p><p>
7031 The doctor continues: <span class="quote">«<span class="quote">I think I may say with reasonable certainty
7032 that in order to cure him completely, all that we need to do is a
7033 simple and easy surgical operation&#8212;namely, to remove these
7034 irritant bodies [the eyes].</span>»</span>
7035 </p><p>
7036 <span class="quote">«<span class="quote">Thank Heaven for science!</span>»</span> says the father to the doctor. They inform
7037 Nunez of this condition necessary for him to be allowed his bride.
7038 (You'll have to read the original to learn what happens in the end. I
7039 believe in free culture, but never in giving away the end of a story.)
7040 </p><p>
7041 <span class="strong"><strong>It sometimes</strong></span> happens that the eggs
7042 of twins fuse in the mother's womb. That fusion produces a
7043 <span class="quote">«<span class="quote">chimera.</span>»</span> A chimera is a single creature with two sets
7044 of DNA. The DNA in the blood, for example, might be different from the
7045 DNA of the skin. This possibility is an underused
7046
7047
7048 plot for murder mysteries. <span class="quote">«<span class="quote">But the DNA shows with 100 percent
7049 certainty that she was not the person whose blood was at the
7050 scene. &#8230;</span>»</span>
7051 </p><a class="indexterm" name="idp9335584"></a><a class="indexterm" name="idp9336688"></a><p>
7052 Before I had read about chimeras, I would have said they were
7053 impossible.  A single person can't have two sets of DNA. The very idea
7054 of DNA is that it is the code of an individual. Yet in fact, not only
7055 can two individuals have the same set of DNA (identical twins), but
7056 one person can have two different sets of DNA (a chimera). Our
7057 understanding of a <span class="quote">«<span class="quote">person</span>»</span> should reflect this reality.
7058 </p><p>
7059 The more I work to understand the current struggle over copyright and
7060 culture, which I've sometimes called unfairly, and sometimes not
7061 unfairly enough, <span class="quote">«<span class="quote">the copyright wars,</span>»</span> the more I think we're dealing
7062 with a chimera. For example, in the battle over the question <span class="quote">«<span class="quote">What is
7063 p2p file sharing?</span>»</span> both sides have it right, and both sides have it
7064 wrong.  One side says, <span class="quote">«<span class="quote">File sharing is just like two kids taping each
7065 others' records&#8212;the sort of thing we've been doing for the last
7066 thirty years without any question at all.</span>»</span> That's true, at least in
7067 part. When I tell my best friend to try out a new CD that I've bought,
7068 but rather than just send the CD, I point him to my p2p server, that
7069 is, in all relevant respects, just like what every executive in every
7070 recording company no doubt did as a kid: sharing music.
7071 </p><p>
7072 But the description is also false in part. For when my p2p server is
7073 on a p2p network through which anyone can get access to my music, then
7074 sure, my friends can get access, but it stretches the meaning of
7075 <span class="quote">«<span class="quote">friends</span>»</span> beyond recognition to say <span class="quote">«<span class="quote">my ten thousand best friends</span>»</span> can
7076 get access. Whether or not sharing my music with my best friend is
7077 what <span class="quote">«<span class="quote">we have always been allowed to do,</span>»</span> we have not always been
7078 allowed to share music with <span class="quote">«<span class="quote">our ten thousand best friends.</span>»</span>
7079 </p><p>
7080 Likewise, when the other side says, <span class="quote">«<span class="quote">File sharing is just like walking
7081 into a Tower Records and taking a CD off the shelf and walking out
7082 with it,</span>»</span> that's true, at least in part. If, after Lyle Lovett
7083 (finally) releases a new album, rather than buying it, I go to Kazaa
7084 and find a free copy to take, that is very much like stealing a copy
7085 from Tower.
7086 <a class="indexterm" name="idp9345280"></a>
7087 </p><p>
7088
7089
7090 But it is not quite stealing from Tower. After all, when I take a CD
7091 from Tower Records, Tower has one less CD to sell. And when I take a
7092 CD from Tower Records, I get a bit of plastic and a cover, and
7093 something to show on my shelves. (And, while we're at it, we could
7094 also note that when I take a CD from Tower Records, the maximum fine
7095 that might be imposed on me, under California law, at least, is
7096 $1,000.  According to the RIAA, by contrast, if I download a ten-song
7097 CD, I'm liable for $1,500,000 in damages.)
7098 </p><p>
7099 The point is not that it is as neither side describes. The point is
7100 that it is both&#8212;both as the RIAA describes it and as Kazaa
7101 describes it. It is a chimera. And rather than simply denying what the
7102 other side asserts, we need to begin to think about how we should
7103 respond to this chimera. What rules should govern it?
7104 </p><p>
7105 We could respond by simply pretending that it is not a chimera. We
7106 could, with the RIAA, decide that every act of file sharing should be
7107 a felony. We could prosecute families for millions of dollars in
7108 damages just because file sharing occurred on a family computer. And
7109 we can get universities to monitor all computer traffic to make sure
7110 that no computer is used to commit this crime. These responses might
7111 be extreme, but each of them has either been proposed or actually
7112 implemented.<a href="#ftn.idp9349072" class="footnote" name="idp9349072"><sup class="footnote">[155]</sup></a>
7113
7114 </p><a class="indexterm" name="idp9360720"></a><p>
7115 Alternatively, we could respond to file sharing the way many kids act
7116 as though we've responded. We could totally legalize it. Let there be
7117 no copyright liability, either civil or criminal, for making
7118 copyrighted content available on the Net. Make file sharing like
7119 gossip: regulated, if at all, by social norms but not by law.
7120 </p><p>
7121 Either response is possible. I think either would be a mistake.
7122 Rather than embrace one of these two extremes, we should embrace
7123 something that recognizes the truth in both. And while I end this book
7124 with a sketch of a system that does just that, my aim in the next
7125 chapter is to show just how awful it would be for us to adopt the
7126 zero-tolerance extreme. I believe <span class="emphasis"><em>either</em></span> extreme
7127 would be worse than a reasonable alternative.  But I believe the
7128 zero-tolerance solution would be the worse of the two extremes.
7129 </p><p>
7130
7131
7132 Yet zero tolerance is increasingly our government's policy. In the
7133 middle of the chaos that the Internet has created, an extraordinary
7134 land grab is occurring. The law and technology are being shifted to
7135 give content holders a kind of control over our culture that they have
7136 never had before. And in this extremism, many an opportunity for new
7137 innovation and new creativity will be lost.
7138 </p><p>
7139 I'm not talking about the opportunities for kids to <span class="quote">«<span class="quote">steal</span>»</span> music. My
7140 focus instead is the commercial and cultural innovation that this war
7141 will also kill. We have never seen the power to innovate spread so
7142 broadly among our citizens, and we have just begun to see the
7143 innovation that this power will unleash. Yet the Internet has already
7144 seen the passing of one cycle of innovation around technologies to
7145 distribute content. The law is responsible for this passing. As the
7146 vice president for global public policy at one of these new
7147 innovators, eMusic.com, put it when criticizing the DMCA's added
7148 protection for copyrighted material,
7149 </p><div class="blockquote"><blockquote class="blockquote"><p>
7150 eMusic opposes music piracy. We are a distributor of copyrighted
7151 material, and we want to protect those rights.
7152 </p><p>
7153 But building a technology fortress that locks in the clout of the
7154 major labels is by no means the only way to protect copyright
7155 interests, nor is it necessarily the best. It is simply too early to
7156 answer that question. Market forces operating naturally may very well
7157 produce a totally different industry model.
7158 </p><p>
7159 This is a critical point. The choices that industry sectors make
7160 with respect to these systems will in many ways directly shape the
7161 market for digital media and the manner in which digital media
7162 are distributed. This in turn will directly influence the options
7163 that are available to consumers, both in terms of the ease with
7164 which they will be able to access digital media and the equipment
7165 that they will require to do so. Poor choices made this early in the
7166 game will retard the growth of this market, hurting everyone's
7167 interests.<a href="#ftn.idp9368896" class="footnote" name="idp9368896"><sup class="footnote">[156]</sup></a>
7168 </p></blockquote></div><p>
7169 In April 2001, eMusic.com was purchased by Vivendi Universal,
7170 one of <span class="quote">«<span class="quote">the major labels.</span>»</span> Its position on these matters has now
7171 changed.
7172 <a class="indexterm" name="idp9371568"></a>
7173 </p><p>
7174 Reversing our tradition of tolerance now will not merely quash
7175 piracy. It will sacrifice values that are important to this culture,
7176 and will kill opportunities that could be extraordinarily valuable.
7177 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp9317712" class="footnote"><p><a href="#idp9317712" class="para"><sup class="para">[154] </sup></a>
7178
7179 H. G. Wells, <span class="quote">«<span class="quote">The Country of the Blind</span>»</span> (1904, 1911). See H. G. Wells,
7180 <em class="citetitle">The Country of the Blind and Other Stories</em>, Michael Sherborne, ed. (New
7181 York: Oxford University Press, 1996).
7182 </p></div><div id="ftn.idp9349072" class="footnote"><p><a href="#idp9349072" class="para"><sup class="para">[155] </sup></a>
7183
7184 <a class="indexterm" name="idp9349776"></a>
7185 For an excellent summary, see the report prepared by GartnerG2 and the
7186 Berkman Center for Internet and Society at Harvard Law School,
7187 <span class="quote">«<span class="quote">Copyright and Digital Media in a Post-Napster World,</span>»</span> 27 June 2003,
7188 available at
7189 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
7190 #33</a>. Reps. John Conyers Jr. (D-Mich.) and Howard L. Berman
7191 (D-Calif.) have introduced a bill that would treat unauthorized
7192 on-line copying as a felony offense with punishments ranging as high
7193 as five years imprisonment; see Jon Healey, <span class="quote">«<span class="quote">House Bill Aims to Up
7194 Stakes on Piracy,</span>»</span> <em class="citetitle">Los Angeles Times</em>, 17 July 2003, available at
7195 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #34</a>. Civil
7196 penalties are currently set at $150,000 per copied song. For a recent
7197 (and unsuccessful) legal challenge to the RIAA's demand that an ISP
7198 reveal the identity of a user accused of sharing more than 600 songs
7199 through a family computer, see <em class="citetitle">RIAA</em> v. <em class="citetitle">Verizon Internet Services (In
7200 re. Verizon Internet Services)</em>, 240 F.  Supp. 2d 24
7201 (D.D.C. 2003). Such a user could face liability ranging as high as $90
7202 million. Such astronomical figures furnish the RIAA with a powerful
7203 arsenal in its prosecution of file sharers. Settlements ranging from
7204 $12,000 to $17,500 for four students accused of heavy file sharing on
7205 university networks must have seemed a mere pittance next to the $98
7206 billion the RIAA could seek should the matter proceed to court. See
7207 Elizabeth Young, <span class="quote">«<span class="quote">Downloading Could Lead to Fines,</span>»</span> redandblack.com,
7208 August 2003, available at
7209 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #35</a>. For an
7210 example of the RIAA's targeting of student file sharing, and of the
7211 subpoenas issued to universities to reveal student file-sharer
7212 identities, see James Collins, <span class="quote">«<span class="quote">RIAA Steps Up Bid to Force BC, MIT to
7213 Name Students,</span>»</span> <em class="citetitle">Boston Globe</em>, 8 August 2003, D3, available at
7214 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #36</a>.
7215 <a class="indexterm" name="idp9358832"></a>
7216 <a class="indexterm" name="idp9359648"></a>
7217 </p></div><div id="ftn.idp9368896" class="footnote"><p><a href="#idp9368896" class="para"><sup class="para">[156] </sup></a>
7218
7219 WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital
7220 Entertainment on the Internet and Other Media: Hearing Before the
7221 Subcommittee on Telecommunications, Trade, and Consumer Protection,
7222 House Committee on Commerce, 106th Cong. 29 (1999) (statement of Peter
7223 Harter, vice president, Global Public Policy and Standards,
7224 EMusic.com), available in LEXIS, Federal Document Clearing House
7225 Congressional Testimony File.  </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h2 class="title"><a name="harms"></a>Chapter 12. Chapter Twelve: Harms</h2></div></div></div><p>
7226 <span class="strong"><strong>To fight</strong></span> <span class="quote">«<span class="quote">piracy,</span>»</span> to
7227 protect <span class="quote">«<span class="quote">property,</span>»</span> the content industry has launched a
7228 war. Lobbying and lots of campaign contributions have now brought the
7229 government into this war. As with any war, this one will have both
7230 direct and collateral damage. As with any war of prohibition, these
7231 damages will be suffered most by our own people.
7232 </p><p>
7233 My aim so far has been to describe the consequences of this war, in
7234 particular, the consequences for <span class="quote">«<span class="quote">free culture.</span>»</span> But my aim now is to
7235 extend this description of consequences into an argument. Is this war
7236 justified?
7237 </p><p>
7238 In my view, it is not. There is no good reason why this time, for the
7239 first time, the law should defend the old against the new, just when the
7240 power of the property called <span class="quote">«<span class="quote">intellectual property</span>»</span> is at its greatest in
7241 our history.
7242 </p><a class="indexterm" name="idp9379264"></a><a class="indexterm" name="idp9380080"></a><p>
7243 Yet <span class="quote">«<span class="quote">common sense</span>»</span> does not see it this way. Common sense is still on
7244 the side of the Causbys and the content industry. The extreme claims
7245 of control in the name of property still resonate; the uncritical
7246 rejection of <span class="quote">«<span class="quote">piracy</span>»</span> still has play.
7247 </p><a class="indexterm" name="idp9382400"></a><p>
7248
7249 There will be many consequences of continuing this war. I want to
7250 describe just three. All three might be said to be unintended. I am quite
7251 confident the third is unintended. I'm less sure about the first two. The
7252 first two protect modern RCAs, but there is no Howard Armstrong in
7253 the wings to fight today's monopolists of culture.
7254 </p><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="constrain"></a>12.1. Constraining Creators</h2></div></div></div><p>
7255 In the next ten years we will see an explosion of digital
7256 technologies.  These technologies will enable almost anyone to capture
7257 and share content. Capturing and sharing content, of course, is what
7258 humans have done since the dawn of man. It is how we learn and
7259 communicate. But capturing and sharing through digital technology is
7260 different. The fidelity and power are different. You could send an
7261 e-mail telling someone about a joke you saw on Comedy Central, or you
7262 could send the clip. You could write an essay about the
7263 inconsistencies in the arguments of the politician you most love to
7264 hate, or you could make a short film that puts statement against
7265 statement. You could write a poem to express your love, or you could
7266 weave together a string&#8212;a mash-up&#8212; of songs from your
7267 favorite artists in a collage and make it available on the Net.
7268 </p><p>
7269 This digital <span class="quote">«<span class="quote">capturing and sharing</span>»</span> is in part an extension of the
7270 capturing and sharing that has always been integral to our culture,
7271 and in part it is something new. It is continuous with the Kodak, but
7272 it explodes the boundaries of Kodak-like technologies. The technology
7273 of digital <span class="quote">«<span class="quote">capturing and sharing</span>»</span> promises a world of extraordinarily
7274 diverse creativity that can be easily and broadly shared. And as that
7275 creativity is applied to democracy, it will enable a broad range of
7276 citizens to use technology to express and criticize and contribute to
7277 the culture all around.
7278 </p><p>
7279 Technology has thus given us an opportunity to do something with
7280 culture that has only ever been possible for individuals in small groups,
7281
7282
7283
7284 isolated from others. Think about an old man telling a story to a
7285 collection of neighbors in a small town. Now imagine that same
7286 storytelling extended across the globe.
7287 </p><p>
7288 Yet all this is possible only if the activity is presumptively legal. In
7289 the current regime of legal regulation, it is not. Forget file sharing for
7290 a moment. Think about your favorite amazing sites on the Net. Web
7291 sites that offer plot summaries from forgotten television shows; sites
7292 that catalog cartoons from the 1960s; sites that mix images and sound
7293 to criticize politicians or businesses; sites that gather newspaper articles
7294 on remote topics of science or culture. There is a vast amount of creative
7295 work spread across the Internet. But as the law is currently crafted, this
7296 work is presumptively illegal.
7297 </p><a class="indexterm" name="idp9390544"></a><a class="indexterm" name="idp9391328"></a><a class="indexterm" name="idp9392448"></a><a class="indexterm" name="idp9393568"></a><a class="indexterm" name="idp9394400"></a><p>
7298 That presumption will increasingly chill creativity, as the
7299 examples of extreme penalties for vague infringements continue to
7300 proliferate. It is impossible to get a clear sense of what's allowed
7301 and what's not, and at the same time, the penalties for crossing the
7302 line are astonishingly harsh.  The four students who were threatened
7303 by the RIAA (Jesse Jordan of chapter <a class="xref" href="#catalogs" title="Chapter 3. Chapter Three: Catalogs">3</a> was just one) were threatened with a
7304 $98 billion lawsuit for building search engines that permitted songs
7305 to be copied. Yet World-Com&#8212;which defrauded investors of $11
7306 billion, resulting in a loss to investors in market capitalization of
7307 over $200 billion&#8212;received a fine of a mere $750
7308 million.<a href="#ftn.idp9397120" class="footnote" name="idp9397120"><sup class="footnote">[157]</sup></a>
7309 And under legislation being pushed in Congress right now, a doctor who
7310 negligently removes the wrong leg in an operation would be liable for
7311 no more than $250,000 in damages for pain and
7312 suffering.<a href="#ftn.idp9401008" class="footnote" name="idp9401008"><sup class="footnote">[158]</sup></a>
7313 Can common sense recognize the absurdity in a world where
7314 the maximum fine for downloading two songs off the Internet is more
7315 than the fine for a doctor's negligently butchering a patient?
7316 </p><a class="indexterm" name="idp9405856"></a><p>
7317 The consequence of this legal uncertainty, tied to these extremely
7318 high penalties, is that an extraordinary amount of creativity will
7319 either never be exercised, or never be exercised in the open. We drive
7320 this creative process underground by branding the modern-day Walt
7321 Disneys <span class="quote">«<span class="quote">pirates.</span>»</span> We make it impossible for businesses to rely upon a
7322 public domain, because the boundaries of the public domain are
7323 designed to
7324
7325
7326 be unclear. It never pays to do anything except pay for the right
7327 to create, and hence only those who can pay are allowed to create. As
7328 was the case in the Soviet Union, though for very different reasons,
7329 we will begin to see a world of underground art&#8212;not because the
7330 message is necessarily political, or because the subject is
7331 controversial, but because the very act of creating the art is legally
7332 fraught. Already, exhibits of <span class="quote">«<span class="quote">illegal art</span>»</span> tour the United
7333 States.<a href="#ftn.idp9409008" class="footnote" name="idp9409008"><sup class="footnote">[159]</sup></a>
7334  In what does their <span class="quote">«<span class="quote">illegality</span>»</span> consist?
7335 In the act of mixing the culture around us with an expression that is
7336 critical or reflective.
7337 </p><a class="indexterm" name="idp9412944"></a><p>
7338 Part of the reason for this fear of illegality has to do with the
7339 changing law. I described that change in detail in chapter
7340 <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>. But an
7341 even bigger part has to do with the increasing ease with which
7342 infractions can be tracked. As users of file-sharing systems
7343 discovered in 2002, it is a trivial matter for copyright owners to get
7344 courts to order Internet service providers to reveal who has what
7345 content. It is as if your cassette tape player transmitted a list of
7346 the songs that you played in the privacy of your own home that anyone
7347 could tune into for whatever reason they chose.
7348 </p><a class="indexterm" name="idp9415760"></a><p>
7349 Never in our history has a painter had to worry about whether
7350 his painting infringed on someone else's work; but the modern-day
7351 painter, using the tools of Photoshop, sharing content on the Web,
7352 must worry all the time. Images are all around, but the only safe images
7353 to use in the act of creation are those purchased from Corbis or another
7354 image farm. And in purchasing, censoring happens. There is a free
7355 market in pencils; we needn't worry about its effect on creativity. But
7356 there is a highly regulated, monopolized market in cultural icons; the
7357 right to cultivate and transform them is not similarly free.
7358 </p><p>
7359 Lawyers rarely see this because lawyers are rarely empirical. As I
7360 described in chapter
7361 <a class="xref" href="#recorders" title="Chapter 7. Chapter Seven: Recorders">7</a>, in
7362 response to the story about documentary filmmaker Jon Else, I have
7363 been lectured again and again by lawyers who insist Else's use was
7364 fair use, and hence I am wrong to say that the law regulates such a
7365 use.
7366 </p><p>
7367
7368
7369 But fair use in America simply means the right to hire a lawyer to
7370 defend your right to create. And as lawyers love to forget, our system
7371 for defending rights such as fair use is astonishingly bad&#8212;in
7372 practically every context, but especially here. It costs too much, it
7373 delivers too slowly, and what it delivers often has little connection
7374 to the justice underlying the claim. The legal system may be tolerable
7375 for the very rich.  For everyone else, it is an embarrassment to a
7376 tradition that prides itself on the rule of law.
7377 </p><p>
7378 Judges and lawyers can tell themselves that fair use provides adequate
7379 <span class="quote">«<span class="quote">breathing room</span>»</span> between regulation by the law and the access the law
7380 should allow. But it is a measure of how out of touch our legal system
7381 has become that anyone actually believes this. The rules that
7382 publishers impose upon writers, the rules that film distributors
7383 impose upon filmmakers, the rules that newspapers impose upon
7384 journalists&#8212; these are the real laws governing creativity. And
7385 these rules have little relationship to the <span class="quote">«<span class="quote">law</span>»</span> with which judges
7386 comfort themselves.
7387 </p><p>
7388 For in a world that threatens $150,000 for a single willful
7389 infringement of a copyright, and which demands tens of thousands of
7390 dollars to even defend against a copyright infringement claim, and
7391 which would never return to the wrongfully accused defendant anything
7392 of the costs she suffered to defend her right to speak&#8212;in that
7393 world, the astonishingly broad regulations that pass under the name
7394 <span class="quote">«<span class="quote">copyright</span>»</span> silence speech and creativity. And in that world, it takes
7395 a studied blindness for people to continue to believe they live in a
7396 culture that is free.
7397 </p><p>
7398 As Jed Horovitz, the businessman behind Video Pipeline, said to me,
7399 </p><div class="blockquote"><blockquote class="blockquote"><p>
7400 We're losing [creative] opportunities right and left. Creative people
7401 are being forced not to express themselves. Thoughts are not being
7402 expressed. And while a lot of stuff may [still] be created, it still
7403 won't get distributed. Even if the stuff gets made &#8230; you're not
7404 going to get it distributed in the mainstream media unless
7405
7406 you've got a little note from a lawyer saying, <span class="quote">«<span class="quote">This has been
7407 cleared.</span>»</span> You're not even going to get it on PBS without that kind of
7408 permission. That's the point at which they control it.
7409 </p></blockquote></div></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="innovators"></a>12.2. Constraining Innovators</h2></div></div></div><a class="indexterm" name="idxcopyrightlawinnovationhamperedby"></a><a class="indexterm" name="idxinnovationindustryestablishmentopposedto2"></a><a class="indexterm" name="idxregulationasestablishmentprotectionism2"></a><p>
7410 The story of the last section was a crunchy-lefty
7411 story&#8212;creativity quashed, artists who can't speak, yada yada
7412 yada. Maybe that doesn't get you going. Maybe you think there's enough
7413 weird art out there, and enough expression that is critical of what
7414 seems to be just about everything.  And if you think that, you might
7415 think there's little in this story to worry you.
7416 </p><a class="indexterm" name="idxmarketconstraints2"></a><p>
7417 But there's an aspect of this story that is not lefty in any sense.
7418 Indeed, it is an aspect that could be written by the most extreme
7419 promarket ideologue. And if you're one of these sorts (and a special
7420 one at that, <a class="xref" href="#innovators" title="12.2. Constraining Innovators"></a> pages into a book like this), then you
7421 can see this other aspect by substituting <span class="quote">«<span class="quote">free market</span>»</span>
7422 every place I've spoken of <span class="quote">«<span class="quote">free culture.</span>»</span> The point is
7423 the same, even if the interests affecting culture are more
7424 fundamental.
7425 </p><p>
7426 The charge I've been making about the regulation of culture is the
7427 same charge free marketers make about regulating markets. Everyone, of
7428 course, concedes that some regulation of markets is necessary&#8212;at
7429 a minimum, we need rules of property and contract, and courts to
7430 enforce both. Likewise, in this culture debate, everyone concedes that
7431 at least some framework of copyright is also required. But both
7432 perspectives vehemently insist that just because some regulation is
7433 good, it doesn't follow that more regulation is better. And both
7434 perspectives are constantly attuned to the ways in which regulation
7435 simply enables the powerful industries of today to protect themselves
7436 against the competitors of tomorrow.
7437 </p><a class="indexterm" name="idp9438176"></a><a class="indexterm" name="idp9441072"></a><a class="indexterm" name="idp9441888"></a><p>
7438 This is the single most dramatic effect of the shift in regulatory
7439
7440 strategy that I described in chapter <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>. The consequence of this massive
7441 threat of liability tied to the murky boundaries of copyright law is
7442 that innovators who want to innovate in this space can safely innovate
7443 only if they have the sign-off from last generation's dominant
7444 industries.  That lesson has been taught through a series of cases
7445 that were designed and executed to teach venture capitalists a
7446 lesson. That lesson&#8212;what former Napster CEO Hank Barry calls a
7447 <span class="quote">«<span class="quote">nuclear pall</span>»</span> that has fallen over the Valley&#8212;has been learned.
7448 </p><a class="indexterm" name="idp9445456"></a><a class="indexterm" name="idp9446096"></a><p>
7449 Consider one example to make the point, a story whose beginning
7450 I told in <em class="citetitle">The Future of Ideas</em> and which has progressed in a way that
7451 even I (pessimist extraordinaire) would never have predicted.
7452 </p><a class="indexterm" name="idxmpcom"></a><a class="indexterm" name="idxmympcom"></a><a class="indexterm" name="idp9450992"></a><p>
7453 In 1997, Michael Roberts launched a company called MP3.com.  MP3.com
7454 was keen to remake the music business. Their goal was not just to
7455 facilitate new ways to get access to content. Their goal was also to
7456 facilitate new ways to create content. Unlike the major labels,
7457 MP3.com offered creators a venue to distribute their creativity,
7458 without demanding an exclusive engagement from the creators.
7459 </p><a class="indexterm" name="idp9452608"></a><a class="indexterm" name="idxcdsprefdata"></a><p>
7460 To make this system work, however, MP3.com needed a reliable way to
7461 recommend music to its users. The idea behind this alternative was to
7462 leverage the revealed preferences of music listeners to recommend new
7463 artists. If you like Lyle Lovett, you're likely to enjoy Bonnie
7464 Raitt. And so on.
7465 </p><p>
7466 This idea required a simple way to gather data about user preferences.
7467 MP3.com came up with an extraordinarily clever way to gather this
7468 preference data. In January 2000, the company launched a service
7469 called my.mp3.com. Using software provided by MP3.com, a user would
7470 sign into an account and then insert into her computer a CD. The
7471 software would identify the CD, and then give the user access to that
7472 content.  So, for example, if you inserted a CD by Jill Sobule, then
7473 wherever you were&#8212;at work or at home&#8212;you could get access
7474 to that music once you signed into your account. The system was
7475 therefore a kind of music-lockbox.
7476 </p><p>
7477 No doubt some could use this system to illegally copy content. But
7478 that opportunity existed with or without MP3.com. The aim of the
7479
7480
7481 my.mp3.com service was to give users access to their own content, and
7482 as a by-product, by seeing the content they already owned, to discover
7483 the kind of content the users liked.
7484 </p><a class="indexterm" name="idp9458096"></a><p>
7485 To make this system function, however, MP3.com needed to copy 50,000
7486 CDs to a server. (In principle, it could have been the user who
7487 uploaded the music, but that would have taken a great deal of time,
7488 and would have produced a product of questionable quality.) It
7489 therefore purchased 50,000 CDs from a store, and started the process
7490 of making copies of those CDs. Again, it would not serve the content
7491 from those copies to anyone except those who authenticated that they
7492 had a copy of the CD they wanted to access. So while this was 50,000
7493 copies, it was 50,000 copies directed at giving customers something
7494 they had already bought.
7495 </p><a class="indexterm" name="idxvivendiuniversal"></a><a class="indexterm" name="idp9462464"></a><a class="indexterm" name="idp9463600"></a><a class="indexterm" name="idxcopyrightinfringementlawsuitsinrecordingindustry3"></a><a class="indexterm" name="idp9466656"></a><a class="indexterm" name="idp9467776"></a><a class="indexterm" name="idp9468880"></a><p>
7496 Nine days after MP3.com launched its service, the five major labels,
7497 headed by the RIAA, brought a lawsuit against MP3.com. MP3.com settled
7498 with four of the five. Nine months later, a federal judge found
7499 MP3.com to have been guilty of willful infringement with respect to
7500 the fifth. Applying the law as it is, the judge imposed a fine against
7501 MP3.com of $118 million. MP3.com then settled with the remaining
7502 plaintiff, Vivendi Universal, paying over $54 million. Vivendi
7503 purchased MP3.com just about a year later.
7504 </p><p>
7505 That part of the story I have told before. Now consider its conclusion.
7506 </p><p>
7507 After Vivendi purchased MP3.com, Vivendi turned around and filed a
7508 malpractice lawsuit against the lawyers who had advised it that they
7509 had a good faith claim that the service they wanted to offer would be
7510 considered legal under copyright law. This lawsuit alleged that it
7511 should have been obvious that the courts would find this behavior
7512 illegal; therefore, this lawsuit sought to punish any lawyer who had
7513 dared to suggest that the law was less restrictive than the labels
7514 demanded.
7515 </p><a class="indexterm" name="idp9472256"></a><p>
7516 The clear purpose of this lawsuit (which was settled for an
7517 unspecified amount shortly after the story was no longer covered in
7518 the press) was to send an unequivocal message to lawyers advising
7519 clients in this
7520
7521 space: It is not just your clients who might suffer if the content
7522 industry directs its guns against them. It is also you. So those of
7523 you who believe the law should be less restrictive should realize that
7524 such a view of the law will cost you and your firm dearly.
7525 </p><a class="indexterm" name="idp9474720"></a><a class="indexterm" name="idp9475936"></a><a class="indexterm" name="idp9477248"></a><a class="indexterm" name="idp9478688"></a><a class="indexterm" name="idp9479504"></a><a class="indexterm" name="idxbmw"></a><a class="indexterm" name="idxcarsmpsoundsystemsin"></a><a class="indexterm" name="idp9483696"></a><a class="indexterm" name="idp9484480"></a><a class="indexterm" name="idp9485296"></a><a class="indexterm" name="idp9486112"></a><a class="indexterm" name="idp9486928"></a><a class="indexterm" name="idp9487744"></a><a class="indexterm" name="idxneedlemanrafe"></a><a class="indexterm" name="idp9490368"></a><a class="indexterm" name="idp9491184"></a><p>
7526 This strategy is not just limited to the lawyers. In April 2003,
7527 Universal and EMI brought a lawsuit against Hummer Winblad, the
7528 venture capital firm (VC) that had funded Napster at a certain stage of
7529 its development, its cofounder (John Hummer), and general partner
7530 (Hank Barry).<a href="#ftn.idp9492560" class="footnote" name="idp9492560"><sup class="footnote">[160]</sup></a>
7531 The claim here, as well, was that the VC should have recognized the
7532 right of the content industry to control how the industry should
7533 develop. They should be held personally liable for funding a company
7534 whose business turned out to be beyond the law. Here again, the aim of
7535 the lawsuit is transparent: Any VC now recognizes that if you fund a
7536 company whose business is not approved of by the dinosaurs, you are at
7537 risk not just in the marketplace, but in the courtroom as well.  Your
7538 investment buys you not only a company, it also buys you a lawsuit.
7539 So extreme has the environment become that even car manufacturers are
7540 afraid of technologies that touch content. In an article in
7541 <em class="citetitle">Business 2.0</em>, Rafe Needleman describes a
7542 discussion with BMW:
7543 </p><div class="blockquote"><blockquote class="blockquote"><p>
7544 I asked why, with all the storage capacity and computer power in
7545 the car, there was no way to play MP3 files. I was told that BMW
7546 engineers in Germany had rigged a new vehicle to play MP3s via
7547 the car's built-in sound system, but that the company's marketing
7548 and legal departments weren't comfortable with pushing this
7549 forward for release stateside. Even today, no new cars are sold in the
7550 United States with bona fide MP3 players. &#8230; <a href="#ftn.idp9424800" class="footnote" name="idp9424800"><sup class="footnote">[161]</sup></a>
7551 </p></blockquote></div><a class="indexterm" name="idp9502544"></a><a class="indexterm" name="idp9503856"></a><a class="indexterm" name="idp9505168"></a><p>
7552 This is the world of the mafia&#8212;filled with <span class="quote">«<span class="quote">your money or your
7553 life</span>»</span> offers, governed in the end not by courts but by the threats
7554 that the law empowers copyright holders to exercise. It is a system
7555 that will obviously and necessarily stifle new innovation. It is hard
7556 enough to start a company. It is impossibly hard if that company is
7557 constantly threatened by litigation.
7558 </p><p>
7559
7560
7561 The point is not that businesses should have a right to start illegal
7562 enterprises. The point is the definition of <span class="quote">«<span class="quote">illegal.</span>»</span> The law is a
7563 mess of uncertainty. We have no good way to know how it should apply
7564 to new technologies. Yet by reversing our tradition of judicial
7565 deference, and by embracing the astonishingly high penalties that
7566 copyright law imposes, that uncertainty now yields a reality which is
7567 far more conservative than is right. If the law imposed the death
7568 penalty for parking tickets, we'd not only have fewer parking tickets,
7569 we'd also have much less driving. The same principle applies to
7570 innovation. If innovation is constantly checked by this uncertain and
7571 unlimited liability, we will have much less vibrant innovation and
7572 much less creativity.
7573 </p><a class="indexterm" name="idp9509616"></a><p>
7574 The point is directly parallel to the crunchy-lefty point about fair
7575 use. Whatever the <span class="quote">«<span class="quote">real</span>»</span> law is, realism about the effect of law in
7576 both contexts is the same. This wildly punitive system of regulation
7577 will systematically stifle creativity and innovation. It will protect
7578 some industries and some creators, but it will harm industry and
7579 creativity generally. Free market and free culture depend upon vibrant
7580 competition.  Yet the effect of the law today is to stifle just this
7581 kind of competition.  The effect is to produce an overregulated
7582 culture, just as the effect of too much control in the market is to
7583 produce an overregulated-regulated market.
7584 </p><p>
7585 The building of a permission culture, rather than a free culture, is
7586 the first important way in which the changes I have described will
7587 burden innovation. A permission culture means a lawyer's
7588 culture&#8212;a culture in which the ability to create requires a call
7589 to your lawyer. Again, I am not antilawyer, at least when they're kept
7590 in their proper place. I am certainly not antilaw. But our profession
7591 has lost the sense of its limits. And leaders in our profession have
7592 lost an appreciation of the high costs that our profession imposes
7593 upon others. The inefficiency of the law is an embarrassment to our
7594 tradition. And while I believe our profession should therefore do
7595 everything it can to make the law more efficient, it should at least
7596 do everything it can to limit the reach of the
7597
7598 law where the law is not doing any good. The transaction costs buried
7599 within a permission culture are enough to bury a wide range of
7600 creativity.  Someone needs to do a lot of justifying to justify that
7601 result.
7602 </p><p>
7603 <span class="strong"><strong>The uncertainty</strong></span> of the law is one
7604 burden on innovation. There is a second burden that operates more
7605 directly. This is the effort by many in the content industry to use
7606 the law to directly regulate the technology of the Internet so that it
7607 better protects their content.
7608 </p><p>
7609 The motivation for this response is obvious. The Internet enables the
7610 efficient spread of content. That efficiency is a feature of the
7611 Internet's design. But from the perspective of the content industry,
7612 this feature is a <span class="quote">«<span class="quote">bug.</span>»</span> The efficient spread of content means that
7613 content distributors have a harder time controlling the distribution
7614 of content.  One obvious response to this efficiency is thus to make
7615 the Internet less efficient. If the Internet enables <span class="quote">«<span class="quote">piracy,</span>»</span> then,
7616 this response says, we should break the kneecaps of the Internet.
7617 </p><a class="indexterm" name="idp9516768"></a><p>
7618 The examples of this form of legislation are many. At the urging of
7619 the content industry, some in Congress have threatened legislation that
7620 would require computers to determine whether the content they access
7621 is protected or not, and to disable the spread of protected content.<a href="#ftn.idp9518128" class="footnote" name="idp9518128"><sup class="footnote">[162]</sup></a>
7622 Congress has already launched proceedings to explore a mandatory
7623 <span class="quote">«<span class="quote">broadcast flag</span>»</span> that would be required on any device capable of
7624 transmitting digital video (i.e., a computer), and that would disable
7625 the copying of any content that is marked with a broadcast flag. Other
7626 members of Congress have proposed immunizing content providers from
7627 liability for technology they might deploy that would hunt down
7628 copyright violators and disable their machines.<a href="#ftn.idp9521072" class="footnote" name="idp9521072"><sup class="footnote">[163]</sup></a>
7629 </p><p>
7630 In one sense, these solutions seem sensible. If the problem is the
7631 code, why not regulate the code to remove the problem. But any
7632 regulation of technical infrastructure will always be tuned to the
7633 particular technology of the day. It will impose significant burdens
7634 and costs on
7635
7636 the technology, but will likely be eclipsed by advances around exactly
7637 those requirements.
7638 </p><a class="indexterm" name="idp9523184"></a><p>
7639 In March 2002, a broad coalition of technology companies, led by
7640 Intel, tried to get Congress to see the harm that such legislation
7641 would impose.<a href="#ftn.idp9524384" class="footnote" name="idp9524384"><sup class="footnote">[164]</sup></a>
7642 Their argument was obviously not that copyright should not be
7643 protected. Instead, they argued, any protection should not do more
7644 harm than good.
7645 </p><p>
7646 <span class="strong"><strong>There is one</strong></span> more obvious way in
7647 which this war has harmed innovation&#8212;again, a story that will be
7648 quite familiar to the free market crowd.
7649 </p><p>
7650 Copyright may be property, but like all property, it is also a form
7651 of regulation. It is a regulation that benefits some and harms others.
7652 When done right, it benefits creators and harms leeches. When done
7653 wrong, it is regulation the powerful use to defeat competitors.
7654 </p><a class="indexterm" name="idp9528032"></a><a class="indexterm" name="idp9529104"></a><a class="indexterm" name="idp9529920"></a><a class="indexterm" name="idp9530736"></a><p>
7655 As I described in chapter <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>, despite this feature of copyright as
7656 regulation, and subject to important qualifications outlined by
7657 Jessica Litman in her book <em class="citetitle">Digital
7658 Copyright</em>,<a href="#ftn.idp9533616" class="footnote" name="idp9533616"><sup class="footnote">[165]</sup></a>
7659 overall this history of copyright is not bad. As chapter
7660 <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a> details,
7661 when new technologies have come along, Congress has struck a balance
7662 to assure that the new is protected from the old. Compulsory, or
7663 statutory, licenses have been one part of that strategy. Free use (as
7664 in the case of the VCR) has been another.
7665 </p><p>
7666 But that pattern of deference to new technologies has now changed
7667 with the rise of the Internet. Rather than striking a balance between
7668 the claims of a new technology and the legitimate rights of content
7669 creators, both the courts and Congress have imposed legal restrictions
7670 that will have the effect of smothering the new to benefit the old.
7671 </p><a class="indexterm" name="idxinternetradioon"></a><a class="indexterm" name="idxradiooninternet"></a><p>
7672 The response by the courts has been fairly universal.<a href="#ftn.idp9542528" class="footnote" name="idp9542528"><sup class="footnote">[166]</sup></a>
7673 It has been mirrored in the responses threatened and actually
7674 implemented by Congress. I won't catalog all of those responses
7675 here.<a href="#ftn.idp9546848" class="footnote" name="idp9546848"><sup class="footnote">[167]</sup></a>
7676 But there is one example that captures the flavor of them all. This is
7677 the story of the demise of Internet radio.
7678 </p><a class="indexterm" name="idp9553600"></a><a class="indexterm" name="idp9554688"></a><p>
7679
7680
7681 As I described in chapter <a class="xref" href="#pirates" title="Chapter 4. Chapter Four: «Pirates»">4</a>, when a radio station plays a song, the recording
7682 artist doesn't get paid for that <span class="quote">«<span class="quote">radio performance</span>»</span> unless he or she
7683 is also the composer. So, for example if Marilyn Monroe had recorded a
7684 version of <span class="quote">«<span class="quote">Happy Birthday</span>»</span>&#8212;to memorialize her famous
7685 performance before President Kennedy at Madison Square Garden&#8212;
7686 then whenever that recording was played on the radio, the current
7687 copyright owners of <span class="quote">«<span class="quote">Happy Birthday</span>»</span> would get some money, whereas
7688 Marilyn Monroe would not.
7689 </p><p>
7690 The reasoning behind this balance struck by Congress makes some
7691 sense. The justification was that radio was a kind of advertising. The
7692 recording artist thus benefited because by playing her music, the
7693 radio station was making it more likely that her records would be
7694 purchased.  Thus, the recording artist got something, even if only
7695 indirectly.  Probably this reasoning had less to do with the result
7696 than with the power of radio stations: Their lobbyists were quite good
7697 at stopping any efforts to get Congress to require compensation to the
7698 recording artists.
7699 </p><p>
7700 Enter Internet radio. Like regular radio, Internet radio is a
7701 technology to stream content from a broadcaster to a listener. The
7702 broadcast travels across the Internet, not across the ether of radio
7703 spectrum.  Thus, I can <span class="quote">«<span class="quote">tune in</span>»</span> to an Internet radio station in
7704 Berlin while sitting in San Francisco, even though there's no way for
7705 me to tune in to a regular radio station much beyond the San Francisco
7706 metropolitan area.
7707 </p><p>
7708 This feature of the architecture of Internet radio means that there
7709 are potentially an unlimited number of radio stations that a user
7710 could tune in to using her computer, whereas under the existing
7711 architecture for broadcast radio, there is an obvious limit to the
7712 number of broadcasters and clear broadcast frequencies. Internet radio
7713 could therefore be more competitive than regular radio; it could
7714 provide a wider range of selections. And because the potential
7715 audience for Internet radio is the whole world, niche stations could
7716 easily develop and market their content to a relatively large number
7717 of users worldwide. According to some estimates, more than eighty
7718 million users worldwide have tuned in to this new form of radio.
7719 </p><a class="indexterm" name="idp9563088"></a><p>
7720
7721
7722 Internet radio is thus to radio what FM was to AM. It is an
7723 improvement potentially vastly more significant than the FM
7724 improvement over AM, since not only is the technology better, so, too,
7725 is the competition. Indeed, there is a direct parallel between the
7726 fight to establish FM radio and the fight to protect Internet
7727 radio. As one author describes Howard Armstrong's struggle to enable
7728 FM radio,
7729 </p><div class="blockquote"><blockquote class="blockquote"><p>
7730 An almost unlimited number of FM stations was possible in the
7731 shortwaves, thus ending the unnatural restrictions imposed on radio in
7732 the crowded longwaves. If FM were freely developed, the number of
7733 stations would be limited only by economics and competition rather
7734 than by technical restrictions. &#8230; Armstrong likened the situation
7735 that had grown up in radio to that following the invention of the
7736 printing press, when governments and ruling interests attempted to
7737 control this new instrument of mass communications by imposing
7738 restrictive licenses on it. This tyranny was broken only when it
7739 became possible for men freely to acquire printing presses and freely
7740 to run them. FM in this sense was as great an invention as the
7741 printing presses, for it gave radio the opportunity to strike off its
7742 shackles.<a href="#ftn.idp9498800" class="footnote" name="idp9498800"><sup class="footnote">[168]</sup></a>
7743 </p></blockquote></div><p>
7744 This potential for FM radio was never realized&#8212;not
7745 because Armstrong was wrong about the technology, but because he
7746 underestimated the power of <span class="quote">«<span class="quote">vested interests, habits, customs and
7747 legislation</span>»</span><a href="#ftn.idp9568144" class="footnote" name="idp9568144"><sup class="footnote">[169]</sup></a>
7748 to retard the growth of this competing technology.
7749 </p><p>
7750 Now the very same claim could be made about Internet radio. For
7751 again, there is no technical limitation that could restrict the number of
7752 Internet radio stations. The only restrictions on Internet radio are
7753 those imposed by the law. Copyright law is one such law. So the first
7754 question we should ask is, what copyright rules would govern Internet
7755 radio?
7756 </p><a class="indexterm" name="idxartistsrecordingindustrypaymentsto3"></a><a class="indexterm" name="idp9571824"></a><a class="indexterm" name="idp9572928"></a><a class="indexterm" name="idp9574032"></a><a class="indexterm" name="idxrecordingindustryartistremunerationin3"></a><a class="indexterm" name="idxrecordingindustryradiobroadcastand2"></a><a class="indexterm" name="idxrecordingindustryinternetradiohamperedby"></a><a class="indexterm" name="idxrecordingindustryassociationofamericariaaoninternetradiofees"></a><a class="indexterm" name="idxrecordingindustryassociationofamericariaalobbyingpowerof"></a><p>
7757 But here the power of the lobbyists is reversed. Internet radio is a
7758 new industry. The recording artists, on the other hand, have a very
7759
7760
7761 powerful lobby, the RIAA. Thus when Congress considered the phenomenon
7762 of Internet radio in 1995, the lobbyists had primed Congress to adopt
7763 a different rule for Internet radio than the rule that applies to
7764 terrestrial radio. While terrestrial radio does not have to pay our
7765 hypothetical Marilyn Monroe when it plays her hypothetical recording
7766 of <span class="quote">«<span class="quote">Happy Birthday</span>»</span> on the air, <span class="emphasis"><em>Internet radio
7767 does</em></span>. Not only is the law not neutral toward Internet
7768 radio&#8212;the law actually burdens Internet radio more than it
7769 burdens terrestrial radio.
7770 </p><p>
7771 This financial burden is not slight. As Harvard law professor
7772 William Fisher estimates, if an Internet radio station distributed adfree
7773 popular music to (on average) ten thousand listeners, twenty-four
7774 hours a day, the total artist fees that radio station would owe would be
7775 over $1 million a year.<a href="#ftn.idp9588000" class="footnote" name="idp9588000"><sup class="footnote">[170]</sup></a>
7776 A regular radio station broadcasting the same content would pay no
7777 equivalent fee.
7778 </p><a class="indexterm" name="idp9593664"></a><a class="indexterm" name="idp9595056"></a><a class="indexterm" name="idp9596448"></a><a class="indexterm" name="idp9597776"></a><a class="indexterm" name="idp9599152"></a><p>
7779 The burden is not financial only. Under the original rules that were
7780 proposed, an Internet radio station (but not a terrestrial radio
7781 station) would have to collect the following data from <span class="emphasis"><em>every
7782 listening transaction</em></span>:
7783 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><p>
7784 name of the service;
7785 </p></li><li class="listitem"><p>
7786 channel of the program (AM/FM stations use station ID);
7787 </p></li><li class="listitem"><p>
7788 type of program (archived/looped/live);
7789 </p></li><li class="listitem"><p>
7790 date of transmission;
7791 </p></li><li class="listitem"><p>
7792 time of transmission;
7793 </p></li><li class="listitem"><p>
7794 time zone of origination of transmission;
7795 </p></li><li class="listitem"><p>
7796 numeric designation of the place of the sound recording within the program;
7797 </p></li><li class="listitem"><p>
7798 duration of transmission (to nearest second);
7799 </p></li><li class="listitem"><p>
7800 sound recording title;
7801 </p></li><li class="listitem"><p>
7802 ISRC code of the recording;
7803 </p></li><li class="listitem"><p>
7804 release year of the album per copyright notice and in the case of compilation albums, the release year of the album and copy- right date of the track;
7805 </p></li><li class="listitem"><p>
7806 featured recording artist;
7807 </p></li><li class="listitem"><p>
7808 retail album title;
7809 </p></li><li class="listitem"><p>
7810 recording label;
7811 </p></li><li class="listitem"><p>
7812 UPC code of the retail album;
7813 </p></li><li class="listitem"><p>
7814 catalog number;
7815 </p></li><li class="listitem"><p>
7816 copyright owner information;
7817 </p></li><li class="listitem"><p>
7818 musical genre of the channel or program (station format);
7819 </p></li><li class="listitem"><p>
7820 name of the service or entity;
7821 </p></li><li class="listitem"><p>
7822 channel or program;
7823 </p></li><li class="listitem"><p>
7824 date and time that the user logged in (in the user's time zone);
7825 </p></li><li class="listitem"><p>
7826 date and time that the user logged out (in the user's time zone);
7827 </p></li><li class="listitem"><p>
7828 time zone where the signal was received (user);
7829 </p></li><li class="listitem"><p>
7830 unique user identifier;
7831 </p></li><li class="listitem"><p>
7832 the country in which the user received the transmissions.
7833 </p></li></ol></div><a class="indexterm" name="idp9617312"></a><p>
7834 The Librarian of Congress eventually suspended these reporting
7835 requirements, pending further study. And he also changed the original
7836 rates set by the arbitration panel charged with setting rates. But the
7837 basic difference between Internet radio and terrestrial radio remains:
7838 Internet radio has to pay a <span class="emphasis"><em>type of copyright fee</em></span>
7839 that terrestrial radio does not.
7840 </p><p>
7841 Why? What justifies this difference? Was there any study of the
7842 economic consequences from Internet radio that would justify these
7843 differences? Was the motive to protect artists against piracy?
7844 </p><a class="indexterm" name="idp9619888"></a><a class="indexterm" name="idxalbenalex2"></a><a class="indexterm" name="idxrecordingindustryassociationofamericariaaoninternetradiofees2"></a><a class="indexterm" name="idxartistsrecordingindustrypaymentsto4"></a><a class="indexterm" name="idxrecordingindustryartistremunerationin4"></a><p>
7845 In a rare bit of candor, one RIAA expert admitted what seemed obvious
7846 to everyone at the time. As Alex Alben, vice president for Public
7847 Policy at Real Networks, told me,
7848 </p><div class="blockquote"><blockquote class="blockquote"><p>
7849 The RIAA, which was representing the record labels, presented
7850 some testimony about what they thought a willing buyer would
7851 pay to a willing seller, and it was much higher. It was ten times
7852 higher than what radio stations pay to perform the same songs for
7853 the same period of time. And so the attorneys representing the
7854 webcasters asked the RIAA, &#8230; <span class="quote">«<span class="quote">How  do  you  come  up  with a
7855
7856
7857 rate that's so much higher? Why is it worth more than radio?  Because
7858 here we have hundreds of thousands of webcasters who want to pay, and
7859 that should establish the market rate, and if you set the rate so
7860 high, you're going to drive the small webcasters out of
7861 business. &#8230;</span>»</span>
7862 </p><a class="indexterm" name="idp9630720"></a><p>
7863 And the RIAA experts said, <span class="quote">«<span class="quote">Well, we don't really model this as an
7864 industry with thousands of webcasters, <span class="emphasis"><em>we think it should be
7865 an industry with, you know, five or seven big players who can pay a
7866 high rate and it's a stable, predictable market</em></span>.</span>»</span> (Emphasis
7867 added.)
7868 </p></blockquote></div><a class="indexterm" name="idp9633424"></a><a class="indexterm" name="idp9634672"></a><a class="indexterm" name="idp9636016"></a><a class="indexterm" name="idp9637344"></a><p>
7869 Translation: The aim is to use the law to eliminate competition, so
7870 that this platform of potentially immense competition, which would
7871 cause the diversity and range of content available to explode, would not
7872 cause pain to the dinosaurs of old. There is no one, on either the right
7873 or the left, who should endorse this use of the law. And yet there is
7874 practically no one, on either the right or the left, who is doing anything
7875 effective to prevent it.
7876 </p><a class="indexterm" name="idp9639584"></a><a class="indexterm" name="idp9640912"></a><a class="indexterm" name="idp9642304"></a><a class="indexterm" name="idp9643680"></a><a class="indexterm" name="idp9644928"></a><a class="indexterm" name="idp9646176"></a></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="corruptingcitizens"></a>12.3. Corrupting Citizens</h2></div></div></div><p>
7877 Overregulation stifles creativity. It smothers innovation. It gives
7878                 dinosaurs
7879 a veto over the future. It wastes the extraordinary opportunity
7880 for a democratic creativity that digital technology enables.
7881 </p><p>
7882 In addition to these important harms, there is one more that was
7883 important to our forebears, but seems forgotten today. Overregulation
7884 corrupts citizens and weakens the rule of law.
7885 </p><p>
7886 The war that is being waged today is a war of prohibition. As with
7887 every war of prohibition, it is targeted against the behavior of a very
7888 large number of citizens. According to <em class="citetitle">The New York Times</em>, 43 million
7889 Americans downloaded music in May 2002.<a href="#ftn.idp9650944" class="footnote" name="idp9650944"><sup class="footnote">[171]</sup></a>
7890  According to the RIAA,
7891 the behavior of those 43 million Americans is a felony. We thus have a
7892 set of rules that transform 20 percent of America into criminals. As the
7893
7894
7895 RIAA launches lawsuits against not only the Napsters and Kazaas of
7896 the world, but against students building search engines, and
7897                 increasingly
7898 against ordinary users downloading content, the technologies for
7899 sharing will advance to further protect and hide illegal use. It is an arms
7900 race or a civil war, with the extremes of one side inviting a more
7901                 extreme
7902 response by the other.
7903 </p><p>
7904 The content industry's tactics exploit the failings of the American
7905 legal system. When the RIAA brought suit against Jesse Jordan, it
7906 knew that in Jordan it had found a scapegoat, not a defendant. The
7907 threat of having to pay either all the money in the world in damages
7908 ($15,000,000) or almost all the money in the world to defend against
7909 paying all the money in the world in damages ($250,000 in legal fees)
7910 led Jordan to choose to pay all the money he had in the world
7911 ($12,000) to make the suit go away. The same strategy animates the
7912 RIAA's suits against individual users. In September 2003, the RIAA
7913 sued 261 individuals&#8212;including a twelve-year-old girl living in public
7914 housing and a seventy-year-old man who had no idea what file sharing
7915 was.<a href="#ftn.idp9587104" class="footnote" name="idp9587104"><sup class="footnote">[172]</sup></a>
7916 As these scapegoats discovered, it will always cost more to defend
7917 against these suits than it would cost to simply settle. (The twelve
7918 year old, for example, like Jesse Jordan, paid her life savings of $2,000
7919 to settle the case.) Our law is an awful system for defending rights. It
7920 is an embarrassment to our tradition. And the consequence of our law
7921 as it is, is that those with the power can use the law to quash any rights
7922 they oppose.
7923 </p><a class="indexterm" name="idp9657520"></a><p>
7924 Wars of prohibition are nothing new in America. This one is just
7925 something more extreme than anything we've seen before. We
7926 experimented with alcohol prohibition, at a time when the per capita
7927 consumption of alcohol was 1.5 gallons per capita per year. The war
7928 against drinking initially reduced that consumption to just 30 percent
7929 of its preprohibition levels, but by the end of prohibition,
7930 consumption was up to 70 percent of the preprohibition
7931 level. Americans were drinking just about as much, but now, a vast
7932 number were criminals.<a href="#ftn.idp9659152" class="footnote" name="idp9659152"><sup class="footnote">[173]</sup></a>
7933 We have
7934
7935 launched a war on drugs aimed at reducing the consumption of regulated
7936 narcotics that 7 percent (or 16 million) Americans now use.<a href="#ftn.idp9661440" class="footnote" name="idp9661440"><sup class="footnote">[174]</sup></a>
7937 That is a drop from the high (so to speak) in 1979 of 14 percent of
7938 the population. We regulate automobiles to the point where the vast
7939 majority of Americans violate the law every day. We run such a complex
7940 tax system that a majority of cash businesses regularly
7941 cheat.<a href="#ftn.idp9662768" class="footnote" name="idp9662768"><sup class="footnote">[175]</sup></a>
7942 We pride ourselves on our <span class="quote">«<span class="quote">free society,</span>»</span> but an endless array of
7943 ordinary behavior is regulated within our society. And as a result, a
7944 huge proportion of Americans regularly violate at least some law.
7945 </p><a class="indexterm" name="idp9665328"></a><p>
7946 This state of affairs is not without consequence. It is a particularly
7947 salient issue for teachers like me, whose job it is to teach law
7948 students about the importance of <span class="quote">«<span class="quote">ethics.</span>»</span> As my colleague Charlie
7949 Nesson told a class at Stanford, each year law schools admit thousands
7950 of students who have illegally downloaded music, illegally consumed
7951 alcohol and sometimes drugs, illegally worked without paying taxes,
7952 illegally driven cars. These are kids for whom behaving illegally is
7953 increasingly the norm. And then we, as law professors, are supposed to
7954 teach them how to behave ethically&#8212;how to say no to bribes, or
7955 keep client funds separate, or honor a demand to disclose a document
7956 that will mean that your case is over. Generations of
7957 Americans&#8212;more significantly in some parts of America than in
7958 others, but still, everywhere in America today&#8212;can't live their
7959 lives both normally and legally, since <span class="quote">«<span class="quote">normally</span>»</span> entails a certain
7960 degree of illegality.
7961 </p><p>
7962 The response to this general illegality is either to enforce the law
7963 more severely or to change the law. We, as a society, have to learn
7964 how to make that choice more rationally. Whether a law makes sense
7965 depends, in part, at least, upon whether the costs of the law, both
7966 intended and collateral, outweigh the benefits. If the costs, intended
7967 and collateral, do outweigh the benefits, then the law ought to be
7968 changed.  Alternatively, if the costs of the existing system are much
7969 greater than the costs of an alternative, then we have a good reason
7970 to consider the alternative.
7971 </p><p>
7972
7973
7974 My point is not the idiotic one: Just because people violate a law, we
7975 should therefore repeal it. Obviously, we could reduce murder statistics
7976 dramatically by legalizing murder on Wednesdays and Fridays. But
7977 that wouldn't make any sense, since murder is wrong every day of the
7978 week. A society is right to ban murder always and everywhere.
7979 </p><p>
7980 My point is instead one that democracies understood for generations,
7981 but that we recently have learned to forget. The rule of law depends
7982 upon people obeying the law. The more often, and more repeatedly, we
7983 as citizens experience violating the law, the less we respect the
7984 law. Obviously, in most cases, the important issue is the law, not
7985 respect for the law. I don't care whether the rapist respects the law
7986 or not; I want to catch and incarcerate the rapist. But I do care
7987 whether my students respect the law. And I do care if the rules of law
7988 sow increasing disrespect because of the extreme of regulation they
7989 impose.  Twenty million Americans have come of age since the Internet
7990 introduced this different idea of <span class="quote">«<span class="quote">sharing.</span>»</span> We need to be able to
7991 call these twenty million Americans <span class="quote">«<span class="quote">citizens,</span>»</span> not <span class="quote">«<span class="quote">felons.</span>»</span>
7992 </p><p>
7993 When at least forty-three million citizens download content from the
7994 Internet, and when they use tools to combine that content in ways
7995 unauthorized by copyright holders, the first question we should be
7996 asking is not how best to involve the FBI. The first question should
7997 be whether this particular prohibition is really necessary in order to
7998 achieve the proper ends that copyright law serves. Is there another
7999 way to assure that artists get paid without transforming forty-three
8000 million Americans into felons? Does it make sense if there are other
8001 ways to assure that artists get paid without transforming America into
8002 a nation of felons?
8003 </p><p>
8004 This abstract point can be made more clear with a particular example.
8005 </p><p>
8006 We all own CDs. Many of us still own phonograph records. These pieces
8007 of plastic encode music that in a certain sense we have bought.  The
8008 law protects our right to buy and sell that plastic: It is not a
8009 copyright infringement for me to sell all my classical records at a
8010 used
8011
8012
8013 record store and buy jazz records to replace them. That <span class="quote">«<span class="quote">use</span>»</span> of the
8014 recordings is free.
8015 </p><p>
8016 But as the MP3 craze has demonstrated, there is another use of
8017 phonograph records that is effectively free. Because these recordings
8018 were made without copy-protection technologies, I am <span class="quote">«<span class="quote">free</span>»</span> to copy,
8019 or <span class="quote">«<span class="quote">rip,</span>»</span> music from my records onto a computer hard disk. Indeed,
8020 Apple Corporation went so far as to suggest that <span class="quote">«<span class="quote">freedom</span>»</span> was a
8021 right: In a series of commercials, Apple endorsed the <span class="quote">«<span class="quote">Rip, Mix, Burn</span>»</span>
8022 capacities of digital technologies.
8023 </p><a class="indexterm" name="idp9678448"></a><a class="indexterm" name="idxcdsmix"></a><p>
8024 This <span class="quote">«<span class="quote">use</span>»</span> of my records is certainly valuable. I have begun a large
8025 process at home of ripping all of my and my wife's CDs, and storing
8026 them in one archive. Then, using Apple's iTunes, or a wonderful
8027 program called Andromeda, we can build different play lists of our
8028 music: Bach, Baroque, Love Songs, Love Songs of Significant
8029 Others&#8212;the potential is endless. And by reducing the costs of
8030 mixing play lists, these technologies help build a creativity with
8031 play lists that is itself independently valuable. Compilations of
8032 songs are creative and meaningful in their own right.
8033 </p><p>
8034 This use is enabled by unprotected media&#8212;either CDs or records.
8035 But unprotected media also enable file sharing. File sharing threatens
8036 (or so the content industry believes) the ability of creators to earn
8037 a fair return from their creativity. And thus, many are beginning to
8038 experiment with technologies to eliminate unprotected media. These
8039 technologies, for example, would enable CDs that could not be
8040 ripped. Or they might enable spy programs to identify ripped content
8041 on people's machines.
8042 </p><p>
8043 If these technologies took off, then the building of large archives of
8044 your own music would become quite difficult. You might hang in hacker
8045 circles, and get technology to disable the technologies that protect
8046 the content. Trading in those technologies is illegal, but maybe that
8047 doesn't bother you much. In any case, for the vast majority of people,
8048 these protection technologies would effectively destroy the archiving
8049
8050
8051 use of CDs. The technology, in other words, would force us all back to
8052 the world where we either listened to music by manipulating pieces of
8053 plastic or were part of a massively complex <span class="quote">«<span class="quote">digital rights
8054 management</span>»</span> system.
8055 </p><a class="indexterm" name="idp9685232"></a><p>
8056 If the only way to assure that artists get paid were the elimination
8057 of the ability to freely move content, then these technologies to
8058 interfere with the freedom to move content would be justifiable. But
8059 what if there were another way to assure that artists are paid,
8060 without locking down any content? What if, in other words, a different
8061 system could assure compensation to artists while also preserving the
8062 freedom to move content easily?
8063 </p><p>
8064 My point just now is not to prove that there is such a system. I offer
8065 a version of such a system in the last chapter of this book. For now,
8066 the only point is the relatively uncontroversial one: If a different
8067 system achieved the same legitimate objectives that the existing
8068 copyright system achieved, but left consumers and creators much more
8069 free, then we'd have a very good reason to pursue this
8070 alternative&#8212;namely, freedom.  The choice, in other words, would
8071 not be between property and piracy; the choice would be between
8072 different property systems and the freedoms each allowed.
8073 </p><p>
8074 I believe there is a way to assure that artists are paid without
8075 turning forty-three million Americans into felons. But the salient
8076 feature of this alternative is that it would lead to a very different
8077 market for producing and distributing creativity. The dominant few,
8078 who today control the vast majority of the distribution of content in
8079 the world, would no longer exercise this extreme of control. Rather,
8080 they would go the way of the horse-drawn buggy.
8081 </p><p>
8082 Except that this generation's buggy manufacturers have already saddled
8083 Congress, and are riding the law to protect themselves against this
8084 new form of competition. For them the choice is between fortythree
8085 million Americans as criminals and their own survival.
8086 </p><p>
8087 It is understandable why they choose as they do. It is not
8088 understandable why we as a democracy continue to choose as we do. Jack
8089
8090
8091
8092 Valenti is charming; but not so charming as to justify giving up a
8093 tradition as deep and important as our tradition of free culture.
8094 </p><a class="indexterm" name="idp9690912"></a><a class="indexterm" name="idxisps"></a><p>
8095 <span class="strong"><strong>There's one more</strong></span> aspect to this
8096 corruption that is particularly important to civil liberties, and
8097 follows directly from any war of prohibition.  As Electronic Frontier
8098 Foundation attorney Fred von Lohmann describes, this is the
8099 <span class="quote">«<span class="quote">collateral damage</span>»</span> that <span class="quote">«<span class="quote">arises whenever you turn
8100 a very large percentage of the population into criminals.</span>»</span> This
8101 is the collateral damage to civil liberties generally.
8102 </p><a class="indexterm" name="idp9695552"></a><p>
8103 <span class="quote">«<span class="quote">If you can treat someone as a putative lawbreaker,</span>»</span> von Lohmann
8104 explains,
8105 </p><div class="blockquote"><blockquote class="blockquote"><p>
8106 then all of a sudden a lot of basic civil liberty protections
8107 evaporate to one degree or another. &#8230; If you're a copyright
8108 infringer, how can you hope to have any privacy rights? If you're a
8109 copyright infringer, how can you hope to be secure against seizures of
8110 your computer? How can you hope to continue to receive Internet
8111 access? &#8230; Our sensibilities change as soon as we think, <span class="quote">«<span class="quote">Oh, well,
8112 but that person's a criminal, a lawbreaker.</span>»</span> Well, what this campaign
8113 against file sharing has done is turn a remarkable percentage of the
8114 American Internet-using population into <span class="quote">«<span class="quote">lawbreakers.</span>»</span>
8115 </p></blockquote></div><p>
8116 And the consequence of this transformation of the American public
8117 into criminals is that it becomes trivial, as a matter of due process, to
8118 effectively erase much of the privacy most would presume.
8119 </p><p>
8120 Users of the Internet began to see this generally in 2003 as the RIAA
8121 launched its campaign to force Internet service providers to turn over
8122 the names of customers who the RIAA believed were violating copyright
8123 law. Verizon fought that demand and lost. With a simple request to a
8124 judge, and without any notice to the customer at all, the identity of
8125 an Internet user is revealed.
8126 </p><p>
8127
8128 The RIAA then expanded this campaign, by announcing a general strategy
8129 to sue individual users of the Internet who are alleged to have
8130 downloaded copyrighted music from file-sharing systems. But as we've
8131 seen, the potential damages from these suits are astronomical: If a
8132 family's computer is used to download a single CD's worth of music,
8133 the family could be liable for $2 million in damages. That didn't stop
8134 the RIAA from suing a number of these families, just as they had sued
8135 Jesse Jordan.<a href="#ftn.idp9702016" class="footnote" name="idp9702016"><sup class="footnote">[176]</sup></a>
8136
8137 </p><p>
8138 Even this understates the espionage that is being waged by the
8139 RIAA. A report from CNN late last summer described a strategy the
8140 RIAA had adopted to track Napster users.<a href="#ftn.idp9708160" class="footnote" name="idp9708160"><sup class="footnote">[177]</sup></a>
8141 Using a sophisticated hashing algorithm, the RIAA took what is in
8142 effect a fingerprint of every song in the Napster catalog. Any copy of
8143 one of those MP3s will have the same <span class="quote">«<span class="quote">fingerprint.</span>»</span>
8144 </p><p>
8145 So imagine the following not-implausible scenario: Imagine a
8146 friend gives a CD to your daughter&#8212;a collection of songs just
8147 like the cassettes you used to make as a kid. You don't know, and
8148 neither does your daughter, where these songs came from. But she
8149 copies these songs onto her computer. She then takes her computer to
8150 college and connects it to a college network, and if the college
8151 network is <span class="quote">«<span class="quote">cooperating</span>»</span> with the RIAA's espionage, and she hasn't
8152 properly protected her content from the network (do you know how to do
8153 that yourself ?), then the RIAA will be able to identify your daughter
8154 as a <span class="quote">«<span class="quote">criminal.</span>»</span>  And under the rules that universities are beginning
8155 to deploy,<a href="#ftn.idp9712768" class="footnote" name="idp9712768"><sup class="footnote">[178]</sup></a>
8156 your daughter can lose the right to use the university's computer
8157 network.  She can, in some cases, be expelled.
8158 </p><a class="indexterm" name="idp9721104"></a><a class="indexterm" name="idp9722416"></a><p>
8159 Now, of course, she'll have the right to defend herself. You can hire
8160 a lawyer for her (at $300 per hour, if you're lucky), and she can
8161 plead that she didn't know anything about the source of the songs or
8162 that they came from Napster. And it may well be that the university
8163 believes her. But the university might not believe her. It might treat
8164 this <span class="quote">«<span class="quote">contraband</span>»</span> as presumptive of guilt. And as any number of
8165 college students
8166
8167
8168 have already learned, our presumptions about innocence disappear in
8169 the middle of wars of prohibition. This war is no different.
8170 Says von Lohmann,
8171 </p><div class="blockquote"><blockquote class="blockquote"><p>
8172 So when we're talking about numbers like forty to sixty million
8173 Americans that are essentially copyright infringers, you create a
8174 situation where the civil liberties of those people are very much in
8175 peril in a general matter. [I don't] think [there is any] analog where
8176 you could randomly choose any person off the street and be confident
8177 that they were committing an unlawful act that could put them on the
8178 hook for potential felony liability or hundreds of millions of dollars
8179 of civil liability. Certainly we all speed, but speeding isn't the
8180 kind of an act for which we routinely forfeit civil liberties. Some
8181 people use drugs, and I think that's the closest analog, [but] many
8182 have noted that the war against drugs has eroded all of our civil
8183 liberties because it's treated so many Americans as criminals. Well, I
8184 think it's fair to say that file sharing is an order of magnitude
8185 larger number of Americans than drug use. &#8230; If forty to sixty
8186 million Americans have become lawbreakers, then we're really on a
8187 slippery slope to lose a lot of civil liberties for all forty to sixty
8188 million of them.
8189 </p></blockquote></div><p>
8190 When forty to sixty million Americans are considered <span class="quote">«<span class="quote">criminals</span>»</span> under
8191 the law, and when the law could achieve the same objective&#8212;
8192 securing rights to authors&#8212;without these millions being
8193 considered <span class="quote">«<span class="quote">criminals,</span>»</span> who is the villain? Americans or the law?
8194 Which is American, a constant war on our own people or a concerted
8195 effort through our democracy to change our law?
8196 </p></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp9397120" class="footnote"><p><a href="#idp9397120" class="para"><sup class="para">[157] </sup></a>
8197
8198 See Lynne W. Jeter, <em class="citetitle">Disconnected: Deceit and Betrayal at WorldCom</em>
8199 (Hoboken, N.J.: John Wiley &amp; Sons, 2003), 176, 204; for details of
8200 the settlement, see MCI press release, <span class="quote">«<span class="quote">MCI Wins U.S. District Court
8201 Approval for SEC Settlement</span>»</span> (7 July 2003), available at
8202 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #37</a>.
8203 <a class="indexterm" name="idp9399856"></a>
8204 </p></div><div id="ftn.idp9401008" class="footnote"><p><a href="#idp9401008" class="para"><sup class="para">[158] </sup></a>
8205  The bill, modeled after California's tort reform model, was passed in the
8206 House of Representatives but defeated in a Senate vote in July 2003. For
8207 an overview, see Tanya Albert, <span class="quote">«<span class="quote">Measure Stalls in Senate: `We'll Be Back,'
8208 Say Tort Reformers,</span>»</span> amednews.com, 28 July 2003, available at
8209 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #38</a>,
8210 and <span class="quote">«<span class="quote">Senate Turns Back Malpractice Caps,</span>»</span> CBSNews.com, 9 July 2003,
8211 available at
8212 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #39</a>. President Bush has continued to urge tort reform in
8213 recent months.
8214 <a class="indexterm" name="idp9404576"></a>
8215 </p></div><div id="ftn.idp9409008" class="footnote"><p><a href="#idp9409008" class="para"><sup class="para">[159] </sup></a>
8216
8217
8218 See Danit Lidor, <span class="quote">«<span class="quote">Artists Just Wanna Be Free,</span>»</span> <em class="citetitle">Wired</em>, 7 July
8219 2003, available at
8220 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #40</a>. For an overview of the exhibition, see
8221 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #41</a>.
8222 </p></div><div id="ftn.idp9492560" class="footnote"><p><a href="#idp9492560" class="para"><sup class="para">[160] </sup></a>
8223
8224 See Joseph Menn, <span class="quote">«<span class="quote">Universal, EMI Sue Napster Investor,</span>»</span> <em class="citetitle">Los Angeles
8225 Times</em>, 23 April 2003. For a parallel argument about the effects on
8226 innovation in the distribution of music, see Janelle Brown, <span class="quote">«<span class="quote">The Music
8227 Revolution Will Not Be Digitized,</span>»</span> Salon.com, 1 June 2001, available
8228 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #42</a>.
8229 See also Jon Healey, <span class="quote">«<span class="quote">Online Music Services Besieged,</span>»</span> <em class="citetitle">Los Angeles
8230 Times</em>, 28 May 2001.
8231 </p></div><div id="ftn.idp9424800" class="footnote"><p><a href="#idp9424800" class="para"><sup class="para">[161] </sup></a>
8232
8233 Rafe Needleman, <span class="quote">«<span class="quote">Driving in Cars with MP3s,</span>»</span> <em class="citetitle">Business 2.0</em>, 16 June
8234 2003, available at
8235 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #43</a>. I am grateful
8236 to Dr. Mohammad Al-Ubaydli for this example.
8237 <a class="indexterm" name="idp9501344"></a>
8238 </p></div><div id="ftn.idp9518128" class="footnote"><p><a href="#idp9518128" class="para"><sup class="para">[162] </sup></a>
8239  <span class="quote">«<span class="quote">Copyright and Digital Media in a Post-Napster World,</span>»</span> GartnerG2 and
8240 the Berkman Center for Internet and Society at Harvard Law School
8241 (2003), 33&#8211;35, available at
8242 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #44</a>.
8243 </p></div><div id="ftn.idp9521072" class="footnote"><p><a href="#idp9521072" class="para"><sup class="para">[163] </sup></a>
8244
8245 GartnerG2, 26&#8211;27.
8246 </p></div><div id="ftn.idp9524384" class="footnote"><p><a href="#idp9524384" class="para"><sup class="para">[164] </sup></a>
8247
8248 See David McGuire, <span class="quote">«<span class="quote">Tech Execs Square Off Over Piracy,</span>»</span> Newsbytes,
8249 February 2002 (Entertainment).
8250 </p></div><div id="ftn.idp9533616" class="footnote"><p><a href="#idp9533616" class="para"><sup class="para">[165] </sup></a>
8251
8252 Jessica Litman, <em class="citetitle">Digital Copyright</em> (Amherst,
8253 N.Y.: Prometheus Books, 2001).
8254 <a class="indexterm" name="idp9534832"></a>
8255 <a class="indexterm" name="idp9535664"></a>
8256 </p></div><div id="ftn.idp9542528" class="footnote"><p><a href="#idp9542528" class="para"><sup class="para">[166] </sup></a>
8257
8258 <a class="indexterm" name="idp9543264"></a>
8259 The only circuit court exception is found in <em class="citetitle">Recording Industry
8260 Association of America (RIAA)</em> v. <em class="citetitle">Diamond Multimedia Systems</em>, 180 F. 3d
8261 1072 (9th Cir. 1999). There the court of appeals for the Ninth Circuit
8262 reasoned that makers of a portable MP3 player were not liable for
8263 contributory copyright infringement for a device that is unable to
8264 record or redistribute music (a device whose only copying function is
8265 to render portable a music file already stored on a user's hard
8266 drive).  At the district court level, the only exception is found in
8267 <em class="citetitle">Metro-Goldwyn-Mayer Studios, Inc</em>. v. <em class="citetitle">Grokster, Ltd</em>., 259 F. Supp. 2d
8268 1029 (C.D.  Cal., 2003), where the court found the link between the
8269 distributor and any given user's conduct too attenuated to make the
8270 distributor liable for contributory or vicarious infringement
8271 liability.
8272 </p></div><div id="ftn.idp9546848" class="footnote"><p><a href="#idp9546848" class="para"><sup class="para">[167] </sup></a>
8273
8274 <a class="indexterm" name="idp9547584"></a>
8275 <a class="indexterm" name="idp9548368"></a>
8276 <a class="indexterm" name="idp9549184"></a>
8277 <a class="indexterm" name="idp9550000"></a>
8278 For example, in July 2002, Representative Howard Berman introduced the
8279 Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize
8280 copyright holders from liability for damage done to computers when the
8281 copyright holders use technology to stop copyright infringement. In
8282 August 2002, Representative Billy Tauzin introduced a bill to mandate
8283 that technologies capable of rebroadcasting digital copies of films
8284 broadcast on TV (i.e., computers) respect a <span class="quote">«<span class="quote">broadcast flag</span>»</span> that
8285 would disable copying of that content. And in March of the same year,
8286 Senator Fritz Hollings introduced the Consumer Broadband and Digital
8287 Television Promotion Act, which mandated copyright protection
8288 technology in all digital media devices. See GartnerG2, <span class="quote">«<span class="quote">Copyright and
8289 Digital Media in a Post-Napster World,</span>»</span> 27 June 2003, 33&#8211;34,
8290 available at
8291 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #44</a>.
8292 </p></div><div id="ftn.idp9498800" class="footnote"><p><a href="#idp9498800" class="para"><sup class="para">[168] </sup></a>
8293
8294 Lessing, 239.
8295 </p></div><div id="ftn.idp9568144" class="footnote"><p><a href="#idp9568144" class="para"><sup class="para">[169] </sup></a>
8296
8297 Ibid., 229.
8298 </p></div><div id="ftn.idp9588000" class="footnote"><p><a href="#idp9588000" class="para"><sup class="para">[170] </sup></a>
8299
8300 This example was derived from fees set by the original Copyright
8301 Arbitration Royalty Panel (CARP) proceedings, and is drawn from an
8302 example offered by Professor William Fisher. Conference Proceedings,
8303 iLaw (Stanford), 3 July 2003, on file with author. Professors Fisher
8304 and Zittrain submitted testimony in the CARP proceeding that was
8305 ultimately rejected.  See Jonathan Zittrain, Digital Performance Right
8306 in Sound Recordings and Ephemeral Recordings, Docket No. 2000-9, CARP
8307 DTRA 1 and 2, available at
8308 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #45</a>.
8309 For an excellent analysis making a similar point, see Randal
8310 C. Picker, <span class="quote">«<span class="quote">Copyright as Entry Policy: The Case of Digital
8311 Distribution,</span>»</span> <em class="citetitle">Antitrust Bulletin</em> (Summer/Fall 2002): 461: <span class="quote">«<span class="quote">This was
8312 not confusion, these are just old-fashioned entry barriers. Analog
8313 radio stations are protected from digital entrants, reducing entry in
8314 radio and diversity. Yes, this is done in the name of getting
8315 royalties to copyright holders, but, absent the play of powerful
8316 interests, that could have been done in a media-neutral way.</span>»</span>
8317 <a class="indexterm" name="idp9591712"></a>
8318 <a class="indexterm" name="idp9592496"></a>
8319 </p></div><div id="ftn.idp9650944" class="footnote"><p><a href="#idp9650944" class="para"><sup class="para">[171] </sup></a>
8320  Mike Graziano and Lee Rainie, <span class="quote">«<span class="quote">The Music Downloading Deluge,</span>»</span> Pew
8321 Internet and American Life Project (24 April 2001), available at
8322 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #46</a>.
8323 The Pew Internet and American Life Project reported that 37 million
8324 Americans had downloaded music files from the Internet by early 2001.
8325 </p></div><div id="ftn.idp9587104" class="footnote"><p><a href="#idp9587104" class="para"><sup class="para">[172] </sup></a>
8326
8327 Alex Pham, <span class="quote">«<span class="quote">The Labels Strike Back: N.Y. Girl Settles RIAA Case,</span>»</span> <em class="citetitle">Los
8328 Angeles Times</em>, 10 September 2003, Business.
8329 </p></div><div id="ftn.idp9659152" class="footnote"><p><a href="#idp9659152" class="para"><sup class="para">[173] </sup></a>
8330
8331 Jeffrey A. Miron and Jeffrey Zwiebel, <span class="quote">«<span class="quote">Alcohol Consumption During
8332 Prohibition,</span>»</span> <em class="citetitle">American Economic Review</em> 81, no. 2 (1991): 242.
8333 </p></div><div id="ftn.idp9661440" class="footnote"><p><a href="#idp9661440" class="para"><sup class="para">[174] </sup></a>
8334
8335 National Drug Control Policy: Hearing Before the House Government
8336 Reform Committee, 108th Cong., 1st sess. (5 March 2003) (statement of
8337 John P. Walters, director of National Drug Control Policy).
8338 </p></div><div id="ftn.idp9662768" class="footnote"><p><a href="#idp9662768" class="para"><sup class="para">[175] </sup></a>
8339
8340 See James Andreoni, Brian Erard, and Jonathon Feinstein, <span class="quote">«<span class="quote">Tax
8341 Compliance,</span>»</span> <em class="citetitle">Journal of Economic Literature</em> 36 (1998): 818 (survey of
8342 compliance literature).
8343 </p></div><div id="ftn.idp9702016" class="footnote"><p><a href="#idp9702016" class="para"><sup class="para">[176] </sup></a>
8344
8345 See Frank Ahrens, <span class="quote">«<span class="quote">RIAA's Lawsuits Meet Surprised Targets; Single
8346 Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,</span>»</span>
8347 <em class="citetitle">Washington Post</em>, 10 September 2003, E1; Chris Cobbs, <span class="quote">«<span class="quote">Worried Parents
8348 Pull Plug on File `Stealing'; With the Music Industry Cracking Down on
8349 File Swapping, Parents are Yanking Software from Home PCs to Avoid
8350 Being Sued,</span>»</span> <em class="citetitle">Orlando Sentinel Tribune</em>, 30 August 2003, C1; Jefferson
8351 Graham, <span class="quote">«<span class="quote">Recording Industry Sues Parents,</span>»</span> <em class="citetitle">USA Today</em>, 15 September
8352 2003, 4D; John Schwartz, <span class="quote">«<span class="quote">She Says She's No Music Pirate. No Snoop
8353 Fan, Either,</span>»</span> <em class="citetitle">New York Times</em>, 25 September 2003, C1; Margo Varadi, <span class="quote">«<span class="quote">Is
8354 Brianna a Criminal?</span>»</span> <em class="citetitle">Toronto Star</em>, 18 September 2003, P7.
8355 </p></div><div id="ftn.idp9708160" class="footnote"><p><a href="#idp9708160" class="para"><sup class="para">[177] </sup></a>
8356
8357 See <span class="quote">«<span class="quote">Revealed: How RIAA Tracks Downloaders: Music Industry Discloses
8358 Some Methods Used,</span>»</span> CNN.com, available at
8359 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #47</a>.
8360 </p></div><div id="ftn.idp9712768" class="footnote"><p><a href="#idp9712768" class="para"><sup class="para">[178] </sup></a>
8361
8362 See Jeff Adler, <span class="quote">«<span class="quote">Cambridge: On Campus, Pirates Are Not Penitent,</span>»</span>
8363 <em class="citetitle">Boston Globe</em>, 18 May 2003, City Weekly, 1; Frank Ahrens, <span class="quote">«<span class="quote">Four
8364 Students Sued over Music Sites; Industry Group Targets File Sharing at
8365 Colleges,</span>»</span> <em class="citetitle">Washington Post</em>, 4 April 2003, E1; Elizabeth Armstrong,
8366 <span class="quote">«<span class="quote">Students `Rip, Mix, Burn' at Their Own Risk,</span>»</span> <em class="citetitle">Christian Science
8367 Monitor</em>, 2 September 2003, 20; Robert Becker and Angela Rozas, <span class="quote">«<span class="quote">Music
8368 Pirate Hunt Turns to Loyola; Two Students Names Are Handed Over;
8369 Lawsuit Possible,</span>»</span> <em class="citetitle">Chicago Tribune</em>, 16 July 2003, 1C; Beth Cox, <span class="quote">«<span class="quote">RIAA
8370 Trains Antipiracy Guns on Universities,</span>»</span> <em class="citetitle">Internet News</em>, 30 January
8371 2003, available at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link
8372 #48</a>; Benny Evangelista, <span class="quote">«<span class="quote">Download Warning 101: Freshman
8373 Orientation This Fall to Include Record Industry Warnings Against File
8374 Sharing,</span>»</span> <em class="citetitle">San Francisco Chronicle</em>, 11 August 2003, E11; <span class="quote">«<span class="quote">Raid, Letters
8375 Are Weapons at Universities,</span>»</span> <em class="citetitle">USA Today</em>, 26 September 2000, 3D.
8376 </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>
8377 <span class="strong"><strong>So here's</strong></span> the picture: You're
8378 standing at the side of the road. Your car is on fire. You are angry
8379 and upset because in part you helped start the fire. Now you don't
8380 know how to put it out. Next to you is a bucket, filled with
8381 gasoline. Obviously, gasoline won't put the fire out.
8382 </p><p>
8383 As you ponder the mess, someone else comes along. In a panic, she
8384 grabs the bucket. Before you have a chance to tell her to
8385 stop&#8212;or before she understands just why she should
8386 stop&#8212;the bucket is in the air.  The gasoline is about to hit the
8387 blazing car. And the fire that gasoline will ignite is about to ignite
8388 everything around.
8389 </p><p>
8390 <span class="strong"><strong>A war</strong></span> about copyright rages all
8391 around&#8212;and we're all focusing on the wrong thing. No doubt,
8392 current technologies threaten existing businesses.  No doubt they may
8393 threaten artists. But technologies change.  The industry and
8394 technologists have plenty of ways to use technology to protect
8395 themselves against the current threats of the Internet. This is a fire
8396 that if let alone would burn itself out.
8397 </p><p>
8398
8399 Yet policy makers are not willing to leave this fire to itself. Primed
8400 with plenty of lobbyists' money, they are keen to intervene to
8401 eliminate the problem they perceive. But the problem they perceive is
8402 not the real threat this culture faces. For while we watch this small
8403 fire in the corner, there is a massive change in the way culture is
8404 made that is happening all around.
8405 </p><p>
8406 Somehow we have to find a way to turn attention to this more important
8407 and fundamental issue. Somehow we have to find a way to avoid pouring
8408 gasoline onto this fire.
8409 </p><p>
8410 We have not found that way yet. Instead, we seem trapped in a simpler,
8411 binary view. However much many people push to frame this debate more
8412 broadly, it is the simple, binary view that remains. We rubberneck to
8413 look at the fire when we should be keeping our eyes on the road.
8414 </p><p>
8415 This challenge has been my life these last few years. It has also been
8416 my failure. In the two chapters that follow, I describe one small
8417 brace of efforts, so far failed, to find a way to refocus this
8418 debate. We must understand these failures if we're to understand what
8419 success will require.
8420 </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>
8421 <span class="strong"><strong>In 1995</strong></span>, a father was frustrated
8422 that his daughters didn't seem to like Hawthorne. No doubt there was
8423 more than one such father, but at least one did something about
8424 it. Eric Eldred, a retired computer programmer living in New
8425 Hampshire, decided to put Hawthorne on the Web. An electronic version,
8426 Eldred thought, with links to pictures and explanatory text, would
8427 make this nineteenth-century author's work come alive.
8428 </p><a class="indexterm" name="idxlibrariesofpublicdomainliterature"></a><a class="indexterm" name="idxpublicdomainlibraryofworksderivedfrom"></a><p>
8429 It didn't work&#8212;at least for his daughters. They didn't find
8430 Hawthorne any more interesting than before. But Eldred's experiment
8431 gave birth to a hobby, and his hobby begat a cause: Eldred would build
8432 a library of public domain works by scanning these works and making
8433 them available for free.
8434 </p><a class="indexterm" name="idxdisneywalt5"></a><a class="indexterm" name="idp9749984"></a><p>
8435 Eldred's library was not simply a copy of certain public domain
8436 works, though even a copy would have been of great value to people
8437 across the world who can't get access to printed versions of these
8438 works. Instead, Eldred was producing derivative works from these
8439 public domain works. Just as Disney turned Grimm into stories more
8440
8441 accessible to the twentieth century, Eldred transformed Hawthorne, and
8442 many others, into a form more accessible&#8212;technically
8443 accessible&#8212;today.
8444 </p><a class="indexterm" name="idp9748080"></a><p>
8445 Eldred's freedom to do this with Hawthorne's work grew from the same
8446 source as Disney's. Hawthorne's <em class="citetitle">Scarlet Letter</em> had passed into the
8447 public domain in 1907. It was free for anyone to take without the
8448 permission of the Hawthorne estate or anyone else. Some, such as Dover
8449 Press and Penguin Classics, take works from the public domain and
8450 produce printed editions, which they sell in bookstores across the
8451 country. Others, such as Disney, take these stories and turn them into
8452 animated cartoons, sometimes successfully (<em class="citetitle">Cinderella</em>), sometimes not
8453 (<em class="citetitle">The Hunchback of Notre Dame</em>, <em class="citetitle">Treasure Planet</em>). These are all
8454 commercial publications of public domain works.
8455 </p><a class="indexterm" name="idp9755440"></a><a class="indexterm" name="idp9756752"></a><p>
8456 The Internet created the possibility of noncommercial publications of
8457 public domain works. Eldred's is just one example. There are literally
8458 thousands of others. Hundreds of thousands from across the world have
8459 discovered this platform of expression and now use it to share works
8460 that are, by law, free for the taking. This has produced what we might
8461 call the <span class="quote">«<span class="quote">noncommercial publishing industry,</span>»</span> which before the
8462 Internet was limited to people with large egos or with political or
8463 social causes. But with the Internet, it includes a wide range of
8464 individuals and groups dedicated to spreading culture
8465 generally.<a href="#ftn.idp9759312" class="footnote" name="idp9759312"><sup class="footnote">[179]</sup></a>
8466 </p><a class="indexterm" name="idxcongressuscopyrighttermsextendedby2"></a><a class="indexterm" name="idxcopyrightdurationof6"></a><a class="indexterm" name="idxcopyrightlawtermextensionsin2"></a><a class="indexterm" name="idp9767664"></a><a class="indexterm" name="idp9768480"></a><a class="indexterm" name="idp9769296"></a><a class="indexterm" name="idxpatentsfuturepatentsvsfuturecopyrightsin"></a><p>
8467 As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's
8468 collection of poems <em class="citetitle">New Hampshire</em> was slated to
8469 pass into the public domain. Eldred wanted to post that collection in
8470 his free public library.  But Congress got in the way. As I described
8471 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,
8472 Congress extended the terms of existing copyrights&#8212;this time by
8473 twenty years. Eldred would not be free to add any works more recent
8474 than 1923 to his collection until 2019.  Indeed, no copyrighted work
8475 would pass into the public domain until that year (and not even then,
8476 if Congress extends the term again). By contrast, in the same period,
8477 more than 1 million patents will pass into the public domain.
8478 </p><a class="indexterm" name="idp9774880"></a><a class="indexterm" name="idp9776064"></a><a class="indexterm" name="idp9777456"></a><a class="indexterm" name="idp9778272"></a><a class="indexterm" name="idxcopyrightinperpetuity4"></a><a class="indexterm" name="idxsonnybonocopyrighttermextensionactctea2"></a><p>
8479
8480
8481 This was the Sonny Bono Copyright Term Extension Act
8482 (CTEA), enacted in memory of the congressman and former musician
8483 Sonny Bono, who, his widow, Mary Bono, says, believed that
8484 <span class="quote">«<span class="quote">copyrights should be forever.</span>»</span><a href="#ftn.idp9783520" class="footnote" name="idp9783520"><sup class="footnote">[180]</sup></a>
8485 </p><a class="indexterm" name="idp9786976"></a><a class="indexterm" name="idp9788416"></a><a class="indexterm" name="idp9789536"></a><a class="indexterm" name="idp9790368"></a><a class="indexterm" name="idp9791200"></a><p>
8486 Eldred decided to fight this law. He first resolved to fight it through
8487 civil disobedience. In a series of interviews, Eldred announced that he
8488 would publish as planned, CTEA notwithstanding. But because of a
8489 second law passed in 1998, the NET (No Electronic Theft) Act, his act
8490 of publishing would make Eldred a felon&#8212;whether or not anyone
8491 complained. This was a dangerous strategy for a disabled programmer
8492 to undertake.
8493 </p><a class="indexterm" name="idp9792576"></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>
8494 It was here that I became involved in Eldred's battle. I was a
8495                 constitutional
8496 scholar whose first passion was constitutional
8497                 interpretation.
8498 And though constitutional law courses never focus upon the
8499 Progress Clause of the Constitution, it had always struck me as
8500                 importantly
8501 different. As you know, the Constitution says,
8502 </p><div class="blockquote"><blockquote class="blockquote"><p>
8503 Congress has the power to promote the Progress of Science &#8230;
8504 by securing for limited Times to Authors &#8230; exclusive Right to
8505 their &#8230; Writings. &#8230;
8506 </p></blockquote></div><a class="indexterm" name="idp9803424"></a><p>
8507 As I've described, this clause is unique within the power-granting
8508 clause of Article I, section 8 of our Constitution. Every other clause
8509 granting power to Congress simply says Congress has the power to do
8510 something&#8212;for example, to regulate <span class="quote">«<span class="quote">commerce among the several
8511 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
8512 specific&#8212;to <span class="quote">«<span class="quote">promote &#8230; Progress</span>»</span>&#8212;through means that
8513 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.,
8514 copyrights) <span class="quote">«<span class="quote">for limited Times.</span>»</span>
8515 </p><a class="indexterm" name="idp9808464"></a><a class="indexterm" name="idp9809744"></a><a class="indexterm" name="idp9811008"></a><a class="indexterm" name="idp9812448"></a><p>
8516 In the past forty years, Congress has gotten into the practice of
8517 extending existing terms of copyright protection. What puzzled me
8518 about this was, if Congress has the power to extend existing terms,
8519 then the Constitution's requirement that terms be <span class="quote">«<span class="quote">limited</span>»</span> will have
8520
8521 no practical effect. If every time a copyright is about to expire,
8522 Congress has the power to extend its term, then Congress can achieve
8523 what the Constitution plainly forbids&#8212;perpetual terms <span class="quote">«<span class="quote">on the
8524 installment plan,</span>»</span> as Professor Peter Jaszi so nicely put it.
8525 </p><a class="indexterm" name="idp9815344"></a><a class="indexterm" name="idp9816704"></a><a class="indexterm" name="idp9818048"></a><p>
8526 As an academic, my first response was to hit the books. I remember
8527 sitting late at the office, scouring on-line databases for any serious
8528 consideration of the question. No one had ever challenged Congress's
8529 practice of extending existing terms. That failure may in part be why
8530 Congress seemed so untroubled in its habit. That, and the fact that
8531 the practice had become so lucrative for Congress. Congress knows that
8532 copyright owners will be willing to pay a great deal of money to see
8533 their copyright terms extended. And so Congress is quite happy to keep
8534 this gravy train going.
8535 </p><p>
8536 For this is the core of the corruption in our present system of
8537 government. <span class="quote">«<span class="quote">Corruption</span>»</span> not in the sense that representatives are
8538 bribed.  Rather, <span class="quote">«<span class="quote">corruption</span>»</span> in the sense that the system induces the
8539 beneficiaries of Congress's acts to raise and give money to Congress
8540 to induce it to act. There's only so much time; there's only so much
8541 Congress can do. Why not limit its actions to those things it must
8542 do&#8212;and those things that pay? Extending copyright terms pays.
8543 </p><p>
8544 If that's not obvious to you, consider the following: Say you're one
8545 of the very few lucky copyright owners whose copyright continues to
8546 make money one hundred years after it was created. The Estate of
8547 Robert Frost is a good example. Frost died in 1963. His poetry
8548 continues to be extraordinarily valuable. Thus the Robert Frost estate
8549 benefits greatly from any extension of copyright, since no publisher
8550 would pay the estate any money if the poems Frost wrote could be
8551 published by anyone for free.
8552 </p><p>
8553 So imagine the Robert Frost estate is earning $100,000 a year from
8554 three of Frost's poems. And imagine the copyright for those poems
8555 is about to expire. You sit on the board of the Robert Frost estate.
8556 Your financial adviser comes to your board meeting with a very grim
8557 report:
8558 </p><p>
8559 <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,
8560
8561
8562 and C will expire. That means that after next year, we will no longer be
8563 receiving the annual royalty check of $100,000 from the publishers of
8564 those works.</span>»</span>
8565 </p><p>
8566 <span class="quote">«<span class="quote">There's a proposal in Congress, however,</span>»</span> she continues, <span class="quote">«<span class="quote">that
8567 could change this. A few congressmen are floating a bill to extend the
8568 terms of copyright by twenty years. That bill would be extraordinarily
8569 valuable to us. So we should hope this bill passes.</span>»</span>
8570 </p><p>
8571 <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
8572 about it?</span>»</span>
8573 </p><p>
8574 <span class="quote">«<span class="quote">Well, obviously, yes,</span>»</span> the adviser responds. <span class="quote">«<span class="quote">We could contribute
8575 to the campaigns of a number of representatives to try to assure that
8576 they support the bill.</span>»</span>
8577 </p><p>
8578 You hate politics. You hate contributing to campaigns. So you want
8579 to know whether this disgusting practice is worth it. <span class="quote">«<span class="quote">How much
8580 would we get if this extension were passed?</span>»</span> you ask the adviser. <span class="quote">«<span class="quote">How
8581 much is it worth?</span>»</span>
8582 </p><p>
8583 <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
8584 to get at least $100,000 a year from these copyrights, and you use the
8585 `discount rate' that we use to evaluate estate investments (6 percent),
8586 then this law would be worth $1,146,000 to the estate.</span>»</span>
8587 </p><p>
8588 You're a bit shocked by the number, but you quickly come to the
8589 correct conclusion:
8590 </p><p>
8591 <span class="quote">«<span class="quote">So you're saying it would be worth it for us to pay more than
8592 $1,000,000 in campaign contributions if we were confident those
8593                 contributions
8594 would assure that the bill was passed?</span>»</span>
8595 </p><p>
8596 <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
8597                 contribute
8598 up to the `present value' of the income you expect from these
8599 copyrights. Which for us means over $1,000,000.</span>»</span>
8600 </p><p>
8601 You quickly get the point&#8212;you as the member of the board and, I
8602 trust, you the reader. Each time copyrights are about to expire, every
8603 beneficiary in the position of the Robert Frost estate faces the same
8604 choice: If they can contribute to get a law passed to extend copyrights,
8605
8606 they will benefit greatly from that extension. And so each time
8607         copyrights
8608 are about to expire, there is a massive amount of lobbying to get
8609 the copyright term extended.
8610 </p><p>
8611 Thus a congressional perpetual motion machine: So long as legislation
8612 can be bought (albeit indirectly), there will be all the incentive in
8613 the world to buy further extensions of copyright.
8614 </p><p>
8615 In the lobbying that led to the passage of the Sonny Bono
8616                 Copyright
8617 Term Extension Act, this <span class="quote">«<span class="quote">theory</span>»</span> about incentives was proved
8618 real. Ten of the thirteen original sponsors of the act in the House
8619 received the maximum contribution from Disney's political action
8620 committee; in the Senate, eight of the twelve sponsors received
8621                 contributions.<a href="#ftn.idp9837696" class="footnote" name="idp9837696"><sup class="footnote">[181]</sup></a>
8622  The RIAA and the MPAA are estimated to have spent over
8623 $1.5 million lobbying in the 1998 election cycle. They paid out more
8624 than $200,000 in campaign contributions.<a href="#ftn.idp9839696" class="footnote" name="idp9839696"><sup class="footnote">[182]</sup></a>
8625  Disney is estimated to have
8626 contributed more than $800,000 to reelection campaigns in the
8627 cycle.<a href="#ftn.idp9841808" class="footnote" name="idp9841808"><sup class="footnote">[183]</sup></a>
8628
8629 </p><p>
8630 <span class="strong"><strong>Constitutional law</strong></span> is not oblivious
8631 to the obvious. Or at least, it need not be. So when I was considering
8632 Eldred's complaint, this reality about the never-ending incentives to
8633 increase the copyright term was central to my thinking. In my view, a
8634 pragmatic court committed to interpreting and applying the
8635 Constitution of our framers would see that if Congress has the power
8636 to extend existing terms, then there would be no effective
8637 constitutional requirement that terms be <span class="quote">«<span class="quote">limited.</span>»</span> If
8638 they could extend it once, they would extend it again and again and
8639 again.
8640 </p><a class="indexterm" name="idp9846944"></a><a class="indexterm" name="idp9848336"></a><a class="indexterm" name="idp9849536"></a><p>
8641 It was also my judgment that <span class="emphasis"><em>this</em></span> Supreme Court
8642 would not allow Congress to extend existing terms. As anyone close to
8643 the Supreme Court's work knows, this Court has increasingly restricted
8644 the power of Congress when it has viewed Congress's actions as
8645 exceeding the power granted to it by the Constitution. Among
8646 constitutional scholars, the most famous example of this trend was the
8647 Supreme Court's
8648
8649
8650 decision in 1995 to strike down a law that banned the possession of
8651 guns near schools.
8652 </p><p>
8653 Since 1937, the Supreme Court had interpreted Congress's granted
8654 powers very broadly; so, while the Constitution grants Congress the
8655 power to regulate only <span class="quote">«<span class="quote">commerce among the several states</span>»</span> (aka
8656                 <span class="quote">«<span class="quote">interstate
8657 commerce</span>»</span>), the Supreme Court had interpreted that power to
8658 include the power to regulate any activity that merely affected
8659                 interstate
8660 commerce.
8661 </p><p>
8662 As the economy grew, this standard increasingly meant that there was
8663 no limit to Congress's power to regulate, since just about every
8664 activity, when considered on a national scale, affects interstate
8665 commerce.  A Constitution designed to limit Congress's power was
8666 instead interpreted to impose no limit.
8667 </p><a class="indexterm" name="idp9854752"></a><p>
8668 The Supreme Court, under Chief Justice Rehnquist's command, changed
8669 that in <em class="citetitle">United States</em> v. <em class="citetitle">Lopez</em>. The government had
8670 argued that possessing guns near schools affected interstate
8671 commerce. Guns near schools increase crime, crime lowers property
8672 values, and so on. In the oral argument, the Chief Justice asked the
8673 government whether there was any activity that would not affect
8674 interstate commerce under the reasoning the government advanced. The
8675 government said there was not; if Congress says an activity affects
8676 interstate commerce, then that activity affects interstate
8677 commerce. The Supreme Court, the government said, was not in the
8678 position to second-guess Congress.
8679 </p><p>
8680 <span class="quote">«<span class="quote">We pause to consider the implications of the government's arguments,</span>»</span>
8681 the Chief Justice wrote.<a href="#ftn.idp9858272" class="footnote" name="idp9858272"><sup class="footnote">[184]</sup></a>
8682 If anything Congress says is interstate commerce must therefore be
8683 considered interstate commerce, then there would be no limit to
8684 Congress's power. The decision in <em class="citetitle">Lopez</em> was reaffirmed five years
8685 later in <em class="citetitle">United States</em> v. <em class="citetitle">Morrison</em>.<a href="#ftn.idp9861520" class="footnote" name="idp9861520"><sup class="footnote">[185]</sup></a>
8686 </p><p>
8687 If a principle were at work here, then it should apply to the Progress
8688 Clause as much as the Commerce Clause.<a href="#ftn.idp9863760" class="footnote" name="idp9863760"><sup class="footnote">[186]</sup></a>
8689 And if it is applied to the Progress Clause, the principle should
8690 yield the conclusion that Congress
8691
8692 can't extend an existing term. If Congress could extend an existing
8693 term, then there would be no <span class="quote">«<span class="quote">stopping point</span>»</span> to Congress's power over
8694 terms, though the Constitution expressly states that there is such a
8695 limit. Thus, the same principle applied to the power to grant
8696 copyrights should entail that Congress is not allowed to extend the
8697 term of existing copyrights.
8698 </p><p>
8699 <span class="emphasis"><em>If</em></span>, that is, the principle announced in <em class="citetitle">Lopez</em>
8700 stood for a principle.  Many believed the decision in <em class="citetitle">Lopez</em> stood for
8701 politics&#8212;a conservative Supreme Court, which believed in states'
8702 rights, using its power over Congress to advance its own personal
8703 political preferences. But I rejected that view of the Supreme Court's
8704 decision. Indeed, shortly after the decision, I wrote an article
8705 demonstrating the <span class="quote">«<span class="quote">fidelity</span>»</span> in such an interpretation of the
8706 Constitution. The idea that the Supreme Court decides cases based upon
8707 its politics struck me as extraordinarily boring.  I was not going to
8708 devote my life to teaching constitutional law if these nine Justices
8709 were going to be petty politicians.
8710 </p><a class="indexterm" name="idp9869712"></a><a class="indexterm" name="idp9870800"></a><a class="indexterm" name="idp9871920"></a><a class="indexterm" name="idp9873024"></a><p>
8711 <span class="strong"><strong>Now let's pause</strong></span> for a moment to
8712 make sure we understand what the argument in
8713 <em class="citetitle">Eldred</em> was not about. By insisting on the
8714 Constitution's limits to copyright, obviously Eldred was not endorsing
8715 piracy.  Indeed, in an obvious sense, he was fighting a kind of
8716 piracy&#8212;piracy of the public domain. When Robert Frost wrote his
8717 work and when Walt Disney created Mickey Mouse, the maximum copyright
8718 term was just fifty-six years. Because of interim changes, Frost and
8719 Disney had already enjoyed a seventy-five-year monopoly for their
8720 work. They had gotten the benefit of the bargain that the Constitution
8721 envisions: In exchange for a monopoly protected for fifty-six years,
8722 they created new work. But now these entities were using their
8723 power&#8212;expressed through the power of lobbyists' money&#8212;to
8724 get another twenty-year dollop of monopoly. That twenty-year dollop
8725 would be taken from the public domain. Eric Eldred was fighting a
8726 piracy that affects us all.
8727 </p><a class="indexterm" name="idp9875280"></a><p>
8728 Some people view the public domain with contempt. In their brief
8729
8730
8731 before the Supreme Court, the Nashville Songwriters Association
8732 wrote that the public domain is nothing more than <span class="quote">«<span class="quote">legal piracy.</span>»</span><a href="#ftn.idp9878176" class="footnote" name="idp9878176"><sup class="footnote">[187]</sup></a>
8733 But it is not piracy when the law allows it; and in our constitutional
8734 system, our law requires it. Some may not like the Constitution's
8735 requirements, but that doesn't make the Constitution a pirate's
8736 charter.
8737 </p><p>
8738 As we've seen, our constitutional system requires limits on
8739                 copyright
8740 as a way to assure that copyright holders do not too heavily
8741                 influence
8742 the development and distribution of our culture. Yet, as Eric
8743 Eldred discovered, we have set up a system that assures that copyright
8744 terms will be repeatedly extended, and extended, and extended. We
8745 have created the perfect storm for the public domain. Copyrights have
8746 not expired, and will not expire, so long as Congress is free to be
8747 bought to extend them again.
8748 </p><p>
8749 <span class="strong"><strong>It is valuable</strong></span> copyrights that are
8750 responsible for terms being extended.  Mickey Mouse and
8751 <span class="quote">«<span class="quote">Rhapsody in Blue.</span>»</span> These works are too valuable for
8752 copyright owners to ignore. But the real harm to our society from
8753 copyright extensions is not that Mickey Mouse remains Disney's.
8754 Forget Mickey Mouse. Forget Robert Frost. Forget all the works from
8755 the 1920s and 1930s that have continuing commercial value. The real
8756 harm of term extension comes not from these famous works. The real
8757 harm is to the works that are not famous, not commercially exploited,
8758 and no longer available as a result.
8759 </p><p>
8760 If you look at the work created in the first twenty years (1923 to
8761 1942) affected by the Sonny Bono Copyright Term Extension Act,
8762 2 percent of that work has any continuing commercial value. It was the
8763 copyright holders for that 2 percent who pushed the CTEA through.
8764 But the law and its effect were not limited to that 2 percent. The law
8765 extended the terms of copyright generally.<a href="#ftn.idp9885232" class="footnote" name="idp9885232"><sup class="footnote">[188]</sup></a>
8766
8767 </p><p>
8768 Think practically about the consequence of this
8769                 extension&#8212;practically,
8770 as a businessperson, and not as a lawyer eager for more legal
8771
8772
8773 work. In 1930, 10,047 books were published. In 2000, 174 of those
8774 books were still in print. Let's say you were Brewster Kahle, and you
8775 wanted to make available to the world in your iArchive project the
8776                 remaining
8777 9,873. What would you have to do?
8778 </p><a class="indexterm" name="idp9889200"></a><p>
8779 Well, first, you'd have to determine which of the 9,873 books were
8780 still under copyright. That requires going to a library (these data are
8781 not on-line) and paging through tomes of books, cross-checking the
8782 titles and authors of the 9,873 books with the copyright registration
8783 and renewal records for works published in 1930. That will produce a
8784 list of books still under copyright.
8785 </p><p>
8786 Then for the books still under copyright, you would need to locate
8787 the current copyright owners. How would you do that?
8788 </p><p>
8789 Most people think that there must be a list of these copyright
8790                 owners
8791 somewhere. Practical people think this way. How could there be
8792 thousands and thousands of government monopolies without there
8793 being at least a list?
8794 </p><p>
8795 But there is no list. There may be a name from 1930, and then in
8796 1959, of the person who registered the copyright. But just think
8797                 practically
8798 about how impossibly difficult it would be to track down
8799                 thousands
8800 of such records&#8212;especially since the person who registered is
8801 not necessarily the current owner. And we're just talking about 1930!
8802 </p><p>
8803 <span class="quote">«<span class="quote">But there isn't a list of who owns property generally,</span>»</span> the
8804 apologists for the system respond. <span class="quote">«<span class="quote">Why should there be a list of
8805 copyright owners?</span>»</span>
8806 </p><p>
8807 Well, actually, if you think about it, there <span class="emphasis"><em>are</em></span>
8808 plenty of lists of who owns what property. Think about deeds on
8809 houses, or titles to cars.  And where there isn't a list, the code of
8810 real space is pretty good at suggesting who the owner of a bit of
8811 property is. (A swing set in your backyard is probably yours.) So
8812 formally or informally, we have a pretty good way to know who owns
8813 what tangible property.
8814 </p><p>
8815 So: You walk down a street and see a house. You can know who
8816 owns the house by looking it up in the courthouse registry. If you see
8817 a car, there is ordinarily a license plate that will link the owner to the
8818
8819
8820 car. If you see a bunch of children's toys sitting on the front lawn of a
8821 house, it's fairly easy to determine who owns the toys. And if you
8822                 happen
8823 to see a baseball lying in a gutter on the side of the road, look
8824 around for a second for some kids playing ball. If you don't see any
8825 kids, then okay: Here's a bit of property whose owner we can't easily
8826 determine. It is the exception that proves the rule: that we ordinarily
8827 know quite well who owns what property.
8828 </p><p>
8829 Compare this story to intangible property. You go into a library.
8830 The library owns the books. But who owns the copyrights? As I've
8831                 already
8832 described, there's no list of copyright owners. There are authors'
8833 names, of course, but their copyrights could have been assigned, or
8834 passed down in an estate like Grandma's old jewelry. To know who
8835 owns what, you would have to hire a private detective. The bottom
8836 line: The owner cannot easily be located. And in a regime like ours, in
8837 which it is a felony to use such property without the property owner's
8838 permission, the property isn't going to be used.
8839 </p><p>
8840 The consequence with respect to old books is that they won't be
8841 digitized, and hence will simply rot away on shelves. But the
8842                 consequence
8843 for other creative works is much more dire.
8844 </p><a class="indexterm" name="idxageemichael"></a><a class="indexterm" name="idp9899760"></a><a class="indexterm" name="idp9900576"></a><a class="indexterm" name="idp9901392"></a><p>
8845 Consider the story of Michael Agee, chairman of Hal Roach Studios,
8846 which owns the copyrights for the Laurel and Hardy films. Agee is a
8847 direct beneficiary of the Bono Act. The Laurel and Hardy films were
8848 made between 1921 and 1951. Only one of these films, <em class="citetitle">The Lucky Dog</em>, is
8849 currently out of copyright. But for the CTEA, films made after 1923
8850 would have begun entering the public domain. Because Agee controls the
8851 exclusive rights for these popular films, he makes a great deal of
8852 money. According to one estimate, <span class="quote">«<span class="quote">Roach has sold about 60,000
8853 videocassettes and 50,000 DVDs of the duo's silent
8854 films.</span>»</span><a href="#ftn.idp9903760" class="footnote" name="idp9903760"><sup class="footnote">[189]</sup></a>
8855 </p><p>
8856 Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in
8857 this culture: selflessness. He argued in a brief before the Supreme
8858 Court that the Sonny Bono Copyright Term Extension Act will, if left
8859 standing, destroy a whole generation of American film.
8860 </p><p>
8861 His argument is straightforward. A tiny fraction of this work has
8862
8863
8864 any continuing commercial value. The rest&#8212;to the extent it
8865 survives at all&#8212;sits in vaults gathering dust. It may be that
8866 some of this work not now commercially valuable will be deemed to be
8867 valuable by the owners of the vaults. For this to occur, however, the
8868 commercial benefit from the work must exceed the costs of making the
8869 work available for distribution.
8870 </p><p>
8871 We can't know the benefits, but we do know a lot about the costs.
8872 For most of the history of film, the costs of restoring film were very
8873 high; digital technology has lowered these costs substantially. While
8874 it cost more than $10,000 to restore a ninety-minute black-and-white
8875 film in 1993, it can now cost as little as $100 to digitize one hour of
8876 8 mm film.<a href="#ftn.idp9909072" class="footnote" name="idp9909072"><sup class="footnote">[190]</sup></a>
8877
8878 </p><p>
8879 Restoration technology is not the only cost, nor the most
8880                 important.
8881 Lawyers, too, are a cost, and increasingly, a very important one. In
8882 addition to preserving the film, a distributor needs to secure the rights.
8883 And to secure the rights for a film that is under copyright, you need to
8884 locate the copyright owner.
8885 </p><p>
8886 Or more accurately, <span class="emphasis"><em>owners</em></span>. As we've seen, there
8887 isn't only a single copyright associated with a film; there are
8888 many. There isn't a single person whom you can contact about those
8889 copyrights; there are as many as can hold the rights, which turns out
8890 to be an extremely large number. Thus the costs of clearing the rights
8891 to these films is exceptionally high.
8892 </p><p>
8893 <span class="quote">«<span class="quote">But can't you just restore the film, distribute it, and then pay the
8894 copyright owner when she shows up?</span>»</span> Sure, if you want to commit a
8895 felony. And even if you're not worried about committing a felony, when
8896 she does show up, she'll have the right to sue you for all the profits you
8897 have made. So, if you're successful, you can be fairly confident you'll be
8898 getting a call from someone's lawyer. And if you're not successful, you
8899 won't make enough to cover the costs of your own lawyer. Either way,
8900 you have to talk to a lawyer. And as is too often the case, saying you have
8901 to talk to a lawyer is the same as saying you won't make any money.
8902 </p><p>
8903 For some films, the benefit of releasing the film may well exceed
8904
8905
8906 these costs. But for the vast majority of them, there is no way the
8907                 benefit
8908 would outweigh the legal costs. Thus, for the vast majority of old
8909 films, Agee argued, the film will not be restored and distributed until
8910 the copyright expires.
8911 </p><a class="indexterm" name="idp9917104"></a><p>
8912 But by the time the copyright for these films expires, the film will
8913 have expired. These films were produced on nitrate-based stock, and
8914 nitrate stock dissolves over time. They will be gone, and the metal
8915                 canisters
8916 in which they are now stored will be filled with nothing more
8917 than dust.
8918 </p><p>
8919 <span class="strong"><strong>Of all the</strong></span> creative work produced
8920 by humans anywhere, a tiny fraction has continuing commercial
8921 value. For that tiny fraction, the copyright is a crucially important
8922 legal device. For that tiny fraction, the copyright creates incentives
8923 to produce and distribute the creative work. For that tiny fraction,
8924 the copyright acts as an <span class="quote">«<span class="quote">engine of free expression.</span>»</span>
8925 </p><p>
8926 But even for that tiny fraction, the actual time during which the
8927 creative work has a commercial life is extremely short. As I've
8928                 indicated,
8929 most books go out of print within one year. The same is true of
8930 music and film. Commercial culture is sharklike. It must keep moving.
8931 And when a creative work falls out of favor with the commercial
8932                 distributors,
8933 the commercial life ends.
8934 </p><p>
8935 Yet that doesn't mean the life of the creative work ends. We don't
8936 keep libraries of books in order to compete with Barnes &amp; Noble, and
8937 we don't have archives of films because we expect people to choose
8938                 between
8939 spending Friday night watching new movies and spending
8940                 Friday
8941 night watching a 1930 news documentary. The noncommercial life
8942 of culture is important and valuable&#8212;for entertainment but also, and
8943 more importantly, for knowledge. To understand who we are, and
8944 where we came from, and how we have made the mistakes that we
8945 have, we need to have access to this history.
8946 </p><p>
8947 Copyrights in this context do not drive an engine of free expression.
8948
8949
8950 In this context, there is no need for an exclusive right. Copyrights in
8951 this context do no good.
8952 </p><p>
8953 Yet, for most of our history, they also did little harm. For most of
8954 our history, when a work ended its commercial life, there was no
8955 <span class="emphasis"><em>copyright-related use</em></span> that would be inhibited by
8956 an exclusive right.  When a book went out of print, you could not buy
8957 it from a publisher.  But you could still buy it from a used book
8958 store, and when a used book store sells it, in America, at least,
8959 there is no need to pay the copyright owner anything. Thus, the
8960 ordinary use of a book after its commercial life ended was a use that
8961 was independent of copyright law.
8962 </p><p>
8963 The same was effectively true of film. Because the costs of restoring
8964 a film&#8212;the real economic costs, not the lawyer costs&#8212;were
8965 so high, it was never at all feasible to preserve or restore
8966 film. Like the remains of a great dinner, when it's over, it's
8967 over. Once a film passed out of its commercial life, it may have been
8968 archived for a bit, but that was the end of its life so long as the
8969 market didn't have more to offer.
8970 </p><p>
8971 In other words, though copyright has been relatively short for most
8972 of our history, long copyrights wouldn't have mattered for the works
8973 that lost their commercial value. Long copyrights for these works
8974 would not have interfered with anything.
8975 </p><p>
8976 But this situation has now changed.
8977 </p><a class="indexterm" name="idxarchivesdigital2"></a><p>
8978 One crucially important consequence of the emergence of digital
8979 technologies is to enable the archive that Brewster Kahle dreams of.
8980 Digital technologies now make it possible to preserve and give access
8981 to all sorts of knowledge. Once a book goes out of print, we can now
8982 imagine digitizing it and making it available to everyone,
8983 forever. Once a film goes out of distribution, we could digitize it
8984 and make it available to everyone, forever. Digital technologies give
8985 new life to copyrighted material after it passes out of its commercial
8986 life. It is now possible to preserve and assure universal access to
8987 this knowledge and culture, whereas before it was not.
8988 </p><p>
8989
8990 And now copyright law does get in the way. Every step of producing
8991 this digital archive of our culture infringes on the exclusive right
8992 of copyright. To digitize a book is to copy it. To do that requires
8993 permission of the copyright owner. The same with music, film, or any
8994 other aspect of our culture protected by copyright. The effort to make
8995 these things available to history, or to researchers, or to those who
8996 just want to explore, is now inhibited by a set of rules that were
8997 written for a radically different context.
8998 </p><p>
8999 Here is the core of the harm that comes from extending terms: Now that
9000 technology enables us to rebuild the library of Alexandria, the law
9001 gets in the way. And it doesn't get in the way for any useful
9002 <span class="emphasis"><em>copyright</em></span> purpose, for the purpose of copyright
9003 is to enable the commercial market that spreads culture. No, we are
9004 talking about culture after it has lived its commercial life. In this
9005 context, copyright is serving no purpose <span class="emphasis"><em>at all</em></span>
9006 related to the spread of knowledge. In this context, copyright is not
9007 an engine of free expression. Copyright is a brake.
9008 </p><p>
9009 You may well ask, <span class="quote">«<span class="quote">But if digital technologies lower the costs for
9010 Brewster Kahle, then they will lower the costs for Random House, too.
9011 So won't Random House do as well as Brewster Kahle in spreading
9012 culture widely?</span>»</span>
9013 </p><p>
9014 Maybe. Someday. But there is absolutely no evidence to suggest that
9015 publishers would be as complete as libraries. If Barnes &amp; Noble
9016 offered to lend books from its stores for a low price, would that
9017 eliminate the need for libraries? Only if you think that the only role
9018 of a library is to serve what <span class="quote">«<span class="quote">the market</span>»</span> would demand. But if you
9019 think the role of a library is bigger than this&#8212;if you think its
9020 role is to archive culture, whether there's a demand for any
9021 particular bit of that culture or not&#8212;then we can't count on the
9022 commercial market to do our library work for us.
9023 </p><a class="indexterm" name="idp9935568"></a><p>
9024 I would be the first to agree that it should do as much as it can: We
9025 should rely upon the market as much as possible to spread and enable
9026 culture. My message is absolutely not antimarket. But where we see the
9027 market is not doing the job, then we should allow nonmarket forces the
9028
9029
9030 freedom to fill the gaps. As one researcher calculated for American
9031 culture, 94 percent of the films, books, and music produced between
9032 1923 and 1946 is not commercially available. However much you love the
9033 commercial market, if access is a value, then 6 percent is a failure
9034 to provide that value.<a href="#ftn.idp9937984" class="footnote" name="idp9937984"><sup class="footnote">[191]</sup></a>
9035
9036 </p><p>
9037 <span class="strong"><strong>In January 1999</strong></span>, we filed a lawsuit
9038 on Eric Eldred's behalf in federal district court in Washington, D.C.,
9039 asking the court to declare the Sonny Bono Copyright Term Extension
9040 Act unconstitutional. The two central claims that we made were (1)
9041 that extending existing terms violated the Constitution's
9042 <span class="quote">«<span class="quote">limited Times</span>»</span> requirement, and (2) that extending terms
9043 by another twenty years violated the First Amendment.
9044 </p><p>
9045 The district court dismissed our claims without even hearing an
9046 argument.  A panel of the Court of Appeals for the D.C. Circuit also
9047 dismissed our claims, though after hearing an extensive argument. But
9048 that decision at least had a dissent, by one of the most conservative
9049 judges on that court. That dissent gave our claims life.
9050 </p><p>
9051 Judge David Sentelle said the CTEA violated the requirement that
9052 copyrights be for <span class="quote">«<span class="quote">limited Times</span>»</span> only. His argument was as elegant as
9053 it was simple: If Congress can extend existing terms, then there is no
9054 <span class="quote">«<span class="quote">stopping point</span>»</span> to Congress's power under the Copyright Clause. The
9055 power to extend existing terms means Congress is not required to grant
9056 terms that are <span class="quote">«<span class="quote">limited.</span>»</span> Thus, Judge Sentelle argued, the court had
9057 to interpret the term <span class="quote">«<span class="quote">limited Times</span>»</span> to give it meaning. And the best
9058 interpretation, Judge Sentelle argued, would be to deny Congress the
9059 power to extend existing terms.
9060 </p><p>
9061 We asked the Court of Appeals for the D.C. Circuit as a whole to
9062 hear the case. Cases are ordinarily heard in panels of three, except for
9063 important cases or cases that raise issues specific to the circuit as a
9064 whole, where the court will sit <span class="quote">«<span class="quote">en banc</span>»</span> to hear the case.
9065 </p><a class="indexterm" name="idp9946432"></a><p>
9066 The Court of Appeals rejected our request to hear the case en banc.
9067 This time, Judge Sentelle was joined by the most liberal member of the
9068
9069
9070 D.C. Circuit, Judge David Tatel. Both the most conservative and the
9071 most liberal judges in the D.C. Circuit believed Congress had
9072 overstepped its bounds.
9073 </p><p>
9074 It was here that most expected Eldred v. Ashcroft would die, for the
9075 Supreme Court rarely reviews any decision by a court of appeals. (It
9076 hears about one hundred cases a year, out of more than five thousand
9077 appeals.) And it practically never reviews a decision that upholds a
9078 statute when no other court has yet reviewed the statute.
9079 </p><p>
9080 But in February 2002, the Supreme Court surprised the world by
9081 granting our petition to review the D.C. Circuit opinion. Argument
9082 was set for October of 2002. The summer would be spent writing
9083 briefs and preparing for argument.
9084 </p><p>
9085 <span class="strong"><strong>It is over</strong></span> a year later as I write
9086 these words. It is still astonishingly hard. If you know anything at
9087 all about this story, you know that we lost the appeal. And if you
9088 know something more than just the minimum, you probably think there
9089 was no way this case could have been won. After our defeat, I received
9090 literally thousands of missives by well-wishers and supporters,
9091 thanking me for my work on behalf of this noble but doomed cause. And
9092 none from this pile was more significant to me than the e-mail from my
9093 client, Eric Eldred.
9094 </p><p>
9095 But my client and these friends were wrong. This case could have
9096 been won. It should have been won. And no matter how hard I try to
9097 retell this story to myself, I can never escape believing that my own
9098 mistake lost it.
9099 </p><a class="indexterm" name="idp9951856"></a><p>
9100 <span class="strong"><strong>The mistake</strong></span> was made early, though
9101 it became obvious only at the very end. Our case had been supported
9102 from the very beginning by an extraordinary lawyer, Geoffrey Stewart,
9103 and by the law firm he had moved to, Jones, Day, Reavis and
9104 Pogue. Jones Day took a great deal of heat
9105
9106 from its copyright-protectionist clients for supporting us. They
9107 ignored this pressure (something that few law firms today would ever
9108 do), and throughout the case, they gave it everything they could.
9109 </p><a class="indexterm" name="idp9954576"></a><a class="indexterm" name="idp9955360"></a><a class="indexterm" name="idp9956176"></a><p>
9110 There were three key lawyers on the case from Jones Day. Geoff
9111 Stewart was the first, but then Dan Bromberg and Don Ayer became
9112 quite involved. Bromberg and Ayer in particular had a common view
9113 about how this case would be won: We would only win, they repeatedly
9114 told me, if we could make the issue seem <span class="quote">«<span class="quote">important</span>»</span> to the Supreme
9115 Court. It had to seem as if dramatic harm were being done to free
9116 speech and free culture; otherwise, they would never vote against <span class="quote">«<span class="quote">the
9117 most powerful media companies in the world.</span>»</span>
9118 </p><p>
9119 I hate this view of the law. Of course I thought the Sonny Bono Act
9120 was a dramatic harm to free speech and free culture. Of course I still
9121 think it is. But the idea that the Supreme Court decides the law based
9122 on how important they believe the issues are is just wrong. It might be
9123 <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
9124 that way.</span>»</span> As I believed that any faithful interpretation of what the
9125 framers of our Constitution did would yield the conclusion that the
9126 CTEA was unconstitutional, and as I believed that any faithful
9127                 interpretation
9128 of what the First Amendment means would yield the
9129 conclusion that the power to extend existing copyright terms is
9130                 unconstitutional,
9131 I was not persuaded that we had to sell our case like soap.
9132 Just as a law that bans the swastika is unconstitutional not because the
9133 Court likes Nazis but because such a law would violate the
9134                 Constitution,
9135 so too, in my view, would the Court decide whether Congress's
9136 law was constitutional based on the Constitution, not based on whether
9137 they liked the values that the framers put in the Constitution.
9138 </p><p>
9139 In any case, I thought, the Court must already see the danger and
9140 the harm caused by this sort of law. Why else would they grant review?
9141 There was no reason to hear the case in the Supreme Court if they
9142 weren't convinced that this regulation was harmful. So in my view, we
9143 didn't need to persuade them that this law was bad, we needed to show
9144 why it was unconstitutional.
9145 </p><p>
9146 There was one way, however, in which I felt politics would matter
9147
9148
9149 and in which I thought a response was appropriate. I was convinced
9150 that the Court would not hear our arguments if it thought these were
9151 just the arguments of a group of lefty loons. This Supreme Court was
9152 not about to launch into a new field of judicial review if it seemed
9153 that this field of review was simply the preference of a small
9154 political minority.  Although my focus in the case was not to
9155 demonstrate how bad the Sonny Bono Act was but to demonstrate that it
9156 was unconstitutional, my hope was to make this argument against a
9157 background of briefs that covered the full range of political
9158 views. To show that this claim against the CTEA was grounded in
9159 <span class="emphasis"><em>law</em></span> and not politics, then, we tried to gather
9160 the widest range of credible critics&#8212;credible not because they
9161 were rich and famous, but because they, in the aggregate, demonstrated
9162 that this law was unconstitutional regardless of one's politics.
9163 </p><a class="indexterm" name="idp9965584"></a><a class="indexterm" name="idp9966368"></a><p>
9164 The first step happened all by itself. Phyllis Schlafly's
9165 organization, Eagle Forum, had been an opponent of the CTEA from the
9166 very beginning.  Mrs. Schlafly viewed the CTEA as a sellout by
9167 Congress. In November 1998, she wrote a stinging editorial attacking
9168 the Republican Congress for allowing the law to pass. As she wrote,
9169 <span class="quote">«<span class="quote">Do you sometimes wonder why bills that create a financial windfall to
9170 narrow special interests slide easily through the intricate
9171 legislative process, while bills that benefit the general public seem
9172 to get bogged down?</span>»</span>  The answer, as the editorial documented, was the
9173 power of money.  Schlafly enumerated Disney's contributions to the key
9174 players on the committees. It was money, not justice, that gave Mickey
9175 Mouse twenty more years in Disney's control, Schlafly argued.
9176 </p><p>
9177 In the Court of Appeals, Eagle Forum was eager to file a brief
9178 supporting our position. Their brief made the argument that became the
9179 core claim in the Supreme Court: If Congress can extend the term of
9180 existing copyrights, there is no limit to Congress's power to set
9181 terms.  That strong conservative argument persuaded a strong
9182 conservative judge, Judge Sentelle.
9183 </p><a class="indexterm" name="idp9969584"></a><a class="indexterm" name="idp9970416"></a><a class="indexterm" name="idp9971232"></a><a class="indexterm" name="idp9972048"></a><p>
9184 In the Supreme Court, the briefs on our side were about as diverse as
9185 it gets. They included an extraordinary historical brief by the Free
9186
9187
9188 Software Foundation (home of the GNU project that made GNU/Linux
9189 possible). They included a powerful brief about the costs of
9190 uncertainty by Intel. There were two law professors' briefs, one by
9191 copyright scholars and one by First Amendment scholars. There was an
9192 exhaustive and uncontroverted brief by the world's experts in the
9193 history of the Progress Clause. And of course, there was a new brief
9194 by Eagle Forum, repeating and strengthening its arguments.
9195 </p><a class="indexterm" name="idp9974208"></a><a class="indexterm" name="idp9975008"></a><p>
9196 Those briefs framed a legal argument. Then to support the legal
9197 argument, there were a number of powerful briefs by libraries and
9198 archives, including the Internet Archive, the American Association of
9199 Law Libraries, and the National Writers Union.
9200 </p><a class="indexterm" name="idp9976480"></a><p>
9201 But two briefs captured the policy argument best. One made the
9202 argument I've already described: A brief by Hal Roach Studios argued
9203 that unless the law was struck, a whole generation of American film
9204 would disappear. The other made the economic argument absolutely
9205 clear.
9206 </p><a class="indexterm" name="idp9977968"></a><a class="indexterm" name="idp9978784"></a><a class="indexterm" name="idp9979600"></a><a class="indexterm" name="idp9980416"></a><a class="indexterm" name="idp9981232"></a><p>
9207 This economists' brief was signed by seventeen economists, including
9208 five Nobel Prize winners, including Ronald Coase, James Buchanan,
9209 Milton Friedman, Kenneth Arrow, and George Akerlof. The economists, as
9210 the list of Nobel winners demonstrates, spanned the political
9211 spectrum. Their conclusions were powerful: There was no plausible
9212 claim that extending the terms of existing copyrights would do
9213 anything to increase incentives to create. Such extensions were
9214 nothing more than <span class="quote">«<span class="quote">rent-seeking</span>»</span>&#8212;the fancy term economists use
9215 to describe special-interest legislation gone wild.
9216 </p><a class="indexterm" name="idp9983856"></a><a class="indexterm" name="idp9984640"></a><a class="indexterm" name="idp9985456"></a><a class="indexterm" name="idp9986272"></a><p>
9217 The same effort at balance was reflected in the legal team we gathered
9218 to write our briefs in the case. The Jones Day lawyers had been with
9219 us from the start. But when the case got to the Supreme Court, we
9220 added three lawyers to help us frame this argument to this Court: Alan
9221 Morrison, a lawyer from Public Citizen, a Washington group that had
9222 made constitutional history with a series of seminal victories in the
9223 Supreme Court defending individual rights; my colleague and dean,
9224 Kathleen Sullivan, who had argued many cases in the Court, and
9225
9226
9227 who had advised us early on about a First Amendment strategy; and
9228 finally, former solicitor general Charles Fried.
9229 </p><a class="indexterm" name="idp9988480"></a><a class="indexterm" name="idp9989264"></a><a class="indexterm" name="idp9990384"></a><p>
9230 Fried was a special victory for our side. Every other former solicitor
9231 general was hired by the other side to defend Congress's power to give
9232 media companies the special favor of extended copyright terms. Fried
9233 was the only one who turned down that lucrative assignment to stand up
9234 for something he believed in. He had been Ronald Reagan's chief lawyer
9235 in the Supreme Court. He had helped craft the line of cases that
9236 limited Congress's power in the context of the Commerce Clause. And
9237 while he had argued many positions in the Supreme Court that I
9238 personally disagreed with, his joining the cause was a vote of
9239 confidence in our argument.
9240 </p><p>
9241 The government, in defending the statute, had its collection of
9242 friends, as well. Significantly, however, none of these <span class="quote">«<span class="quote">friends</span>»</span> included
9243 historians or economists. The briefs on the other side of the case were
9244 written exclusively by major media companies, congressmen, and
9245 copyright holders.
9246 </p><p>
9247 The media companies were not surprising. They had the most to gain
9248 from the law. The congressmen were not surprising either&#8212;they
9249 were defending their power and, indirectly, the gravy train of
9250 contributions such power induced. And of course it was not surprising
9251 that the copyright holders would defend the idea that they should
9252 continue to have the right to control who did what with content they
9253 wanted to control.
9254 </p><a class="indexterm" name="idp9993904"></a><a class="indexterm" name="idp9995296"></a><a class="indexterm" name="idp9996112"></a><p>
9255 Dr. Seuss's representatives, for example, argued that it was
9256 better for the Dr. Seuss estate to control what happened to
9257 Dr. Seuss's work&#8212; better than allowing it to fall into the
9258 public domain&#8212;because if this creativity were in the public
9259 domain, then people could use it to <span class="quote">«<span class="quote">glorify drugs or to create
9260 pornography.</span>»</span><a href="#ftn.idp9997856" class="footnote" name="idp9997856"><sup class="footnote">[192]</sup></a>
9261 That was also the motive of the Gershwin estate, which defended its
9262 <span class="quote">«<span class="quote">protection</span>»</span> of the work of George Gershwin. They refuse, for example,
9263 to license <em class="citetitle">Porgy and Bess</em> to anyone who refuses to use African
9264 Americans in the cast.<a href="#ftn.idp10000672" class="footnote" name="idp10000672"><sup class="footnote">[193]</sup></a>
9265 That's
9266
9267 their view of how this part of American culture should be controlled,
9268 and they wanted this law to help them effect that control.
9269 </p><p>
9270 This argument made clear a theme that is rarely noticed in this
9271 debate.  When Congress decides to extend the term of existing
9272 copyrights, Congress is making a choice about which speakers it will
9273 favor.  Famous and beloved copyright owners, such as the Gershwin
9274 estate and Dr. Seuss, come to Congress and say, <span class="quote">«<span class="quote">Give us twenty years
9275 to control the speech about these icons of American culture. We'll do
9276 better with them than anyone else.</span>»</span> Congress of course likes to reward
9277 the popular and famous by giving them what they want. But when
9278 Congress gives people an exclusive right to speak in a certain way,
9279 that's just what the First Amendment is traditionally meant to block.
9280 </p><p>
9281 We argued as much in a final brief. Not only would upholding the CTEA
9282 mean that there was no limit to the power of Congress to extend
9283 copyrights&#8212;extensions that would further concentrate the market;
9284 it would also mean that there was no limit to Congress's power to play
9285 favorites, through copyright, with who has the right to speak.
9286 </p><p>
9287 <span class="strong"><strong>Between February</strong></span> and October, there
9288 was little I did beyond preparing for this case. Early on, as I said,
9289 I set the strategy.
9290 </p><a class="indexterm" name="idp10006496"></a><a class="indexterm" name="idp10007312"></a><p>
9291 The Supreme Court was divided into two important camps. One camp we
9292 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
9293 Conservatives included Chief Justice Rehnquist, Justice O'Connor,
9294 Justice Scalia, Justice Kennedy, and Justice Thomas. These five had
9295 been the most consistent in limiting Congress's power. They were the
9296 five who had supported the <em class="citetitle">Lopez/Morrison</em> line
9297 of cases that said that an enumerated power had to be interpreted to
9298 assure that Congress's powers had limits.
9299 </p><a class="indexterm" name="idp10010272"></a><a class="indexterm" name="idxginsburg"></a><p>
9300 The Rest were the four Justices who had strongly opposed limits on
9301 Congress's power. These four&#8212;Justice Stevens, Justice Souter,
9302 Justice Ginsburg, and Justice Breyer&#8212;had repeatedly argued that
9303 the Constitution
9304
9305 gives Congress broad discretion to decide how best to implement its
9306 powers. In case after case, these justices had argued that the Court's
9307 role should be one of deference. Though the votes of these four
9308 justices were the votes that I personally had most consistently agreed
9309 with, they were also the votes that we were least likely to get.
9310 </p><p>
9311 In particular, the least likely was Justice Ginsburg's. In addition to
9312 her general view about deference to Congress (except where issues of
9313 gender are involved), she had been particularly deferential in the
9314 context of intellectual property protections. She and her daughter (an
9315 excellent and well-known intellectual property scholar) were cut from
9316 the same intellectual property cloth. We expected she would agree with
9317 the writings of her daughter: that Congress had the power in this
9318 context to do as it wished, even if what Congress wished made little
9319 sense.
9320 </p><a class="indexterm" name="idp10015008"></a><p>
9321 Close behind Justice Ginsburg were two justices whom we also viewed as
9322 unlikely allies, though possible surprises. Justice Souter strongly
9323 favored deference to Congress, as did Justice Breyer. But both were
9324 also very sensitive to free speech concerns. And as we strongly
9325 believed, there was a very important free speech argument against
9326 these retrospective extensions.
9327 </p><a class="indexterm" name="idp10016448"></a><p>
9328 The only vote we could be confident about was that of Justice
9329 Stevens. History will record Justice Stevens as one of the greatest
9330 judges on this Court. His votes are consistently eclectic, which just
9331 means that no simple ideology explains where he will stand. But he
9332 had consistently argued for limits in the context of intellectual property
9333 generally. We were fairly confident he would recognize limits here.
9334 </p><p>
9335 This analysis of <span class="quote">«<span class="quote">the Rest</span>»</span> showed most clearly where our focus had to
9336 be: on the Conservatives. To win this case, we had to crack open these
9337 five and get at least a majority to go our way. Thus, the single
9338 overriding argument that animated our claim rested on the
9339 Conservatives' most important jurisprudential innovation&#8212;the
9340 argument that Judge Sentelle had relied upon in the Court of Appeals,
9341 that Congress's power must be interpreted so that its enumerated
9342 powers have limits.
9343 </p><p>
9344 This then was the core of our strategy&#8212;a strategy for which I am
9345 responsible. We would get the Court to see that just as with the
9346 <em class="citetitle">Lopez</em>
9347
9348 case, under the government's argument here, Congress would always have
9349 unlimited power to extend existing terms. If anything was plain about
9350 Congress's power under the Progress Clause, it was that this power was
9351 supposed to be <span class="quote">«<span class="quote">limited.</span>»</span> Our aim would be to get the Court to
9352 reconcile <em class="citetitle">Eldred</em> with
9353 <em class="citetitle">Lopez</em>: If Congress's power to regulate commerce
9354 was limited, then so, too, must Congress's power to regulate copyright
9355 be limited.
9356 </p><p>
9357 <span class="strong"><strong>The argument</strong></span> on the government's
9358 side came down to this: Congress has done it before. It should be
9359 allowed to do it again. The government claimed that from the very
9360 beginning, Congress has been extending the term of existing
9361 copyrights. So, the government argued, the Court should not now say
9362 that practice is unconstitutional.
9363 </p><p>
9364 There was some truth to the government's claim, but not much. We
9365 certainly agreed that Congress had extended existing terms in 1831
9366 and in 1909. And of course, in 1962, Congress began extending
9367                 existing
9368 terms regularly&#8212;eleven times in forty years.
9369 </p><p>
9370 But this <span class="quote">«<span class="quote">consistency</span>»</span> should be kept in perspective. Congress
9371                 extended
9372 existing terms once in the first hundred years of the Republic.
9373 It then extended existing terms once again in the next fifty. Those rare
9374 extensions are in contrast to the now regular practice of extending
9375                 existing
9376 terms. Whatever restraint Congress had had in the past, that
9377                 restraint
9378 was now gone. Congress was now in a cycle of extensions; there
9379 was no reason to expect that cycle would end. This Court had not
9380                 hesitated
9381 to intervene where Congress was in a similar cycle of extension.
9382 There was no reason it couldn't intervene here.
9383 </p><p>
9384 <span class="strong"><strong>Oral argument</strong></span> was scheduled for the
9385 first week in October. I arrived in D.C. two weeks before the
9386 argument. During those two weeks, I was repeatedly
9387 <span class="quote">«<span class="quote">mooted</span>»</span> by lawyers who had volunteered to
9388
9389
9390 help in the case. Such <span class="quote">«<span class="quote">moots</span>»</span> are basically practice rounds, where
9391 wannabe justices fire questions at wannabe winners.
9392 </p><p>
9393 I was convinced that to win, I had to keep the Court focused on a
9394 single point: that if this extension is permitted, then there is no limit to
9395 the power to set terms. Going with the government would mean that
9396 terms would be effectively unlimited; going with us would give
9397                 Congress
9398 a clear line to follow: Don't extend existing terms. The moots
9399 were an effective practice; I found ways to take every question back to
9400 this central idea.
9401 </p><a class="indexterm" name="idp10029792"></a><a class="indexterm" name="idp10030608"></a><a class="indexterm" name="idp10031424"></a><p>
9402 One moot was before the lawyers at Jones Day. Don Ayer was the
9403 skeptic. He had served in the Reagan Justice Department with Solicitor
9404 General Charles Fried. He had argued many cases before the Supreme
9405 Court. And in his review of the moot, he let his concern speak:
9406 </p><p>
9407 <span class="quote">«<span class="quote">I'm just afraid that unless they really see the harm, they won't be
9408 willing to upset this practice that the government says has been a
9409 consistent practice for two hundred years. You have to make them see
9410 the harm&#8212;passionately get them to see the harm. For if they
9411 don't see that, then we haven't any chance of winning.</span>»</span>
9412 </p><a class="indexterm" name="idp10034144"></a><p>
9413 He may have argued many cases before this Court, I thought, but
9414 he didn't understand its soul. As a clerk, I had seen the Justices do the
9415 right thing&#8212;not because of politics but because it was right. As a law
9416 professor, I had spent my life teaching my students that this Court
9417 does the right thing&#8212;not because of politics but because it is right. As
9418 I listened to Ayer's plea for passion in pressing politics, I understood
9419 his point, and I rejected it. Our argument was right. That was enough.
9420 Let the politicians learn to see that it was also good.
9421 </p><p>
9422 <span class="strong"><strong>The night before</strong></span> the argument, a
9423 line of people began to form in front of the Supreme Court. The case
9424 had become a focus of the press and of the movement to free
9425 culture. Hundreds stood in line
9426
9427
9428 for the chance to see the proceedings. Scores spent the night on the
9429 Supreme Court steps so that they would be assured a seat.
9430 </p><p>
9431 Not everyone has to wait in line. People who know the Justices can
9432 ask for seats they control. (I asked Justice Scalia's chambers for seats for
9433 my parents, for example.) Members of the Supreme Court bar can get
9434 a seat in a special section reserved for them. And senators and
9435                 congressmen
9436 have a special place where they get to sit, too. And finally, of
9437 course, the press has a gallery, as do clerks working for the Justices on
9438 the Court. As we entered that morning, there was no place that was
9439 not taken. This was an argument about intellectual property law, yet
9440 the halls were filled. As I walked in to take my seat at the front of the
9441 Court, I saw my parents sitting on the left. As I sat down at the table,
9442 I saw Jack Valenti sitting in the special section ordinarily reserved for
9443 family of the Justices.
9444 </p><p>
9445 When the Chief Justice called me to begin my argument, I began
9446 where I intended to stay: on the question of the limits on Congress's
9447 power. This was a case about enumerated powers, I said, and whether
9448 those enumerated powers had any limit.
9449 </p><a class="indexterm" name="idp10039376"></a><p>
9450 Justice O'Connor stopped me within one minute of my opening.
9451 The history was bothering her.
9452 </p><div class="blockquote"><blockquote class="blockquote"><p>
9453 justice o'connor: Congress has extended the term so often
9454 through the years, and if you are right, don't we run the risk of
9455 upsetting previous extensions of time? I mean, this seems to be a
9456 practice that began with the very first act.
9457 </p></blockquote></div><p>
9458 She was quite willing to concede <span class="quote">«<span class="quote">that this flies directly in the face
9459 of what the framers had in mind.</span>»</span> But my response again and again
9460 was to emphasize limits on Congress's power.
9461 </p><div class="blockquote"><blockquote class="blockquote"><p>
9462 mr. lessig: Well, if it flies in the face of what the framers had in
9463 mind, then the question is, is there a way of interpreting their
9464
9465 words that gives effect to what they had in mind, and the answer
9466 is yes.
9467 </p></blockquote></div><p>
9468 There were two points in this argument when I should have seen
9469 where the Court was going. The first was a question by Justice
9470 Kennedy, who observed,
9471 </p><div class="blockquote"><blockquote class="blockquote"><p>
9472 justice kennedy: Well, I suppose implicit in the argument that
9473 the '76 act, too, should have been declared void, and that we
9474 might leave it alone because of the disruption, is that for all these
9475 years the act has impeded progress in science and the useful arts.
9476 I just don't see any empirical evidence for that.
9477 </p></blockquote></div><p>
9478 Here follows my clear mistake. Like a professor correcting a
9479                 student,
9480 I answered,
9481 </p><div class="blockquote"><blockquote class="blockquote"><p>
9482 mr. lessig: Justice, we are not making an empirical claim at all.
9483 Nothing in our Copyright Clause claim hangs upon the empirical
9484 assertion about impeding progress. Our only argument is this is a
9485 structural limit necessary to assure that what would be an effectively
9486 perpetual term not be permitted under the copyright laws.
9487 </p></blockquote></div><a class="indexterm" name="idp10047232"></a><p>
9488 That was a correct answer, but it wasn't the right answer. The right
9489 answer was instead that there was an obvious and profound harm. Any
9490 number of briefs had been written about it. He wanted to hear it. And
9491 here was the place Don Ayer's advice should have mattered. This was a
9492 softball; my answer was a swing and a miss.
9493 </p><p>
9494 The second came from the Chief, for whom the whole case had been
9495 crafted. For the Chief Justice had crafted the <em class="citetitle">Lopez</em> ruling,
9496 and we hoped that he would see this case as its second cousin.
9497 </p><p>
9498 It was clear a second into his question that he wasn't at all
9499 sympathetic.  To him, we were a bunch of anarchists. As he asked:
9500
9501
9502 </p><div class="blockquote"><blockquote class="blockquote"><p>
9503 chief justice: Well, but you want more than that. You want the
9504 right to copy verbatim other people's books, don't you?
9505 </p><p>
9506 mr. lessig: We want the right to copy verbatim works that
9507 should be in the public domain and would be in the public
9508                 domain
9509 but for a statute that cannot be justified under ordinary First
9510 Amendment analysis or under a proper reading of the limits built
9511 into the Copyright Clause.
9512 </p></blockquote></div><a class="indexterm" name="idp10052208"></a><p>
9513 Things went better for us when the government gave its argument;
9514 for now the Court picked up on the core of our claim. As Justice Scalia
9515 asked Solicitor General Olson,
9516 </p><div class="blockquote"><blockquote class="blockquote"><p>
9517 justice scalia: You say that the functional equivalent of an unlimited
9518 time would be a violation [of the Constitution], but that's precisely
9519 the argument that's being made by petitioners here, that a limited
9520 time which is extendable is the functional equivalent of an unlimited
9521 time.
9522 </p></blockquote></div><p>
9523 When Olson was finished, it was my turn to give a closing rebuttal.
9524 Olson's flailing had revived my anger. But my anger still was directed
9525 to the academic, not the practical. The government was arguing as if
9526 this were the first case ever to consider limits on Congress's
9527 Copyright and Patent Clause power. Ever the professor and not the
9528 advocate, I closed by pointing out the long history of the Court
9529 imposing limits on Congress's power in the name of the Copyright and
9530 Patent Clause&#8212; indeed, the very first case striking a law of
9531 Congress as exceeding a specific enumerated power was based upon the
9532 Copyright and Patent Clause. All true. But it wasn't going to move the
9533 Court to my side.
9534 </p><p>
9535 <span class="strong"><strong>As I left</strong></span> the court that day, I
9536 knew there were a hundred points I wished I could remake. There were a
9537 hundred questions I wished I had
9538
9539
9540 answered differently. But one way of thinking about this case left me
9541 optimistic.
9542 </p><p>
9543 The government had been asked over and over again, what is the limit?
9544 Over and over again, it had answered there is no limit. This was
9545 precisely the answer I wanted the Court to hear. For I could not
9546 imagine how the Court could understand that the government believed
9547 Congress's power was unlimited under the terms of the Copyright
9548 Clause, and sustain the government's argument. The solicitor general
9549 had made my argument for me. No matter how often I tried, I could not
9550 understand how the Court could find that Congress's power under the
9551 Commerce Clause was limited, but under the Copyright Clause,
9552 unlimited. In those rare moments when I let myself believe that we may
9553 have prevailed, it was because I felt this Court&#8212;in particular,
9554 the Conservatives&#8212;would feel itself constrained by the rule of
9555 law that it had established elsewhere.
9556 </p><p>
9557 <span class="strong"><strong>The morning</strong></span> of January 15, 2003, I
9558 was five minutes late to the office and missed the 7:00 A.M. call from
9559 the Supreme Court clerk. Listening to the message, I could tell in an
9560 instant that she had bad news to report.The Supreme Court had affirmed
9561 the decision of the Court of Appeals. Seven justices had voted in the
9562 majority. There were two dissents.
9563 </p><p>
9564 A few seconds later, the opinions arrived by e-mail. I took the
9565 phone off the hook, posted an announcement to our blog, and sat
9566 down to see where I had been wrong in my reasoning.
9567 </p><p>
9568 My <span class="emphasis"><em>reasoning</em></span>. Here was a case that pitted all the
9569 money in the world against <span class="emphasis"><em>reasoning</em></span>. And here
9570 was the last naïve law professor, scouring the pages, looking for
9571 reasoning.
9572 </p><p>
9573 I first scoured the opinion, looking for how the Court would
9574 distinguish the principle in this case from the principle in
9575 <em class="citetitle">Lopez</em>. The argument was nowhere to be found. The case was not even
9576 cited. The argument that was the core argument of our case did not
9577 even appear in the Court's opinion.
9578 </p><a class="indexterm" name="idp10063216"></a><p>
9579
9580
9581 Justice Ginsburg simply ignored the enumerated powers argument.
9582 Consistent with her view that Congress's power was not limited
9583 generally, she had found Congress's power not limited here.
9584 </p><p>
9585 Her opinion was perfectly reasonable&#8212;for her, and for Justice
9586 Souter. Neither believes in <em class="citetitle">Lopez</em>. It would be too much to expect them
9587 to write an opinion that recognized, much less explained, the doctrine
9588 they had worked so hard to defeat.
9589 </p><p>
9590 But as I realized what had happened, I couldn't quite believe what I
9591 was reading. I had said there was no way this Court could reconcile
9592 limited powers with the Commerce Clause and unlimited powers with the
9593 Progress Clause. It had never even occurred to me that they could
9594 reconcile the two simply <span class="emphasis"><em>by not addressing the
9595 argument</em></span>. There was no inconsistency because they would not
9596 talk about the two together.  There was therefore no principle that
9597 followed from the <em class="citetitle">Lopez</em> case: In that context, Congress's power would
9598 be limited, but in this context it would not.
9599 </p><p>
9600 Yet by what right did they get to choose which of the framers' values
9601 they would respect? By what right did they&#8212;the silent
9602 five&#8212;get to select the part of the Constitution they would
9603 enforce based on the values they thought important? We were right back
9604 to the argument that I said I hated at the start: I had failed to
9605 convince them that the issue here was important, and I had failed to
9606 recognize that however much I might hate a system in which the Court
9607 gets to pick the constitutional values that it will respect, that is
9608 the system we have.
9609 </p><a class="indexterm" name="idp10065280"></a><p>
9610 Justices Breyer and Stevens wrote very strong dissents. Stevens's
9611 opinion was crafted internal to the law: He argued that the tradition
9612 of intellectual property law should not support this unjustified
9613 extension of terms. He based his argument on a parallel analysis that
9614 had governed in the context of patents (so had we). But the rest of
9615 the Court discounted the parallel&#8212;without explaining how the
9616 very same words in the Progress Clause could come to mean totally
9617 different things depending upon whether the words were about patents
9618 or copyrights.  The Court let Justice Stevens's charge go unanswered.
9619 </p><a class="indexterm" name="idp10069872"></a><p>
9620
9621 Justice Breyer's opinion, perhaps the best opinion he has ever
9622 written, was external to the Constitution. He argued that the term of
9623 copyrights has become so long as to be effectively unlimited. We had
9624 said that under the current term, a copyright gave an author 99.8
9625 percent of the value of a perpetual term. Breyer said we were wrong,
9626 that the actual number was 99.9997 percent of a perpetual term. Either
9627 way, the point was clear: If the Constitution said a term had to be
9628 <span class="quote">«<span class="quote">limited,</span>»</span> and the existing term was so long as to be effectively
9629 unlimited, then it was unconstitutional.
9630 </p><p>
9631 These two justices understood all the arguments we had made. But
9632 because neither believed in the <em class="citetitle">Lopez</em> case, neither was willing to push
9633 it as a reason to reject this extension. The case was decided without
9634 anyone having addressed the argument that we had carried from Judge
9635 Sentelle. It was <em class="citetitle">Hamlet</em> without the Prince.
9636 </p><p>
9637 <span class="strong"><strong>Defeat brings depression</strong></span>. They say
9638 it is a sign of health when depression gives way to anger. My anger
9639 came quickly, but it didn't cure the depression. This anger was of two
9640 sorts.
9641 </p><a class="indexterm" name="idp10076016"></a><p>
9642 It was first anger with the five <span class="quote">«<span class="quote">Conservatives.</span>»</span> It would have been
9643 one thing for them to have explained why the principle of <em class="citetitle">Lopez</em> didn't
9644 apply in this case. That wouldn't have been a very convincing
9645 argument, I don't believe, having read it made by others, and having
9646 tried to make it myself. But it at least would have been an act of
9647 integrity.  These justices in particular have repeatedly said that the
9648 proper mode of interpreting the Constitution is <span class="quote">«<span class="quote">originalism</span>»</span>&#8212;to
9649 first understand the framers' text, interpreted in their context, in
9650 light of the structure of the Constitution. That method had produced
9651 <em class="citetitle">Lopez</em> and many other <span class="quote">«<span class="quote">originalist</span>»</span> rulings. Where was their
9652 <span class="quote">«<span class="quote">originalism</span>»</span> now?
9653 </p><p>
9654 Here, they had joined an opinion that never once tried to explain
9655 what the framers had meant by crafting the Progress Clause as they
9656 did; they joined an opinion that never once tried to explain how the
9657 structure of that clause would affect the interpretation of Congress's
9658
9659
9660 power. And they joined an opinion that didn't even try to explain why
9661 this grant of power could be unlimited, whereas the Commerce Clause
9662 would be limited. In short, they had joined an opinion that did not
9663 apply to, and was inconsistent with, their own method for interpreting
9664 the Constitution. This opinion may well have yielded a result that
9665 they liked. It did not produce a reason that was consistent with their
9666 own principles.
9667 </p><p>
9668 My anger with the Conservatives quickly yielded to anger with
9669                 myself.
9670 For I had let a view of the law that I liked interfere with a view of
9671 the law as it is.
9672 </p><a class="indexterm" name="idp10082464"></a><p>
9673 Most lawyers, and most law professors, have little patience for
9674 idealism about courts in general and this Supreme Court in particular.
9675 Most have a much more pragmatic view. When Don Ayer said that this
9676 case would be won based on whether I could convince the Justices that
9677 the framers' values were important, I fought the idea, because I
9678 didn't want to believe that that is how this Court decides. I insisted
9679 on arguing this case as if it were a simple application of a set of
9680 principles.  I had an argument that followed in logic. I didn't need
9681 to waste my time showing it should also follow in popularity.
9682 </p><p>
9683 As I read back over the transcript from that argument in October, I
9684 can see a hundred places where the answers could have taken the
9685 conversation in different directions, where the truth about the harm
9686 that this unchecked power will cause could have been made clear to
9687 this Court. Justice Kennedy in good faith wanted to be shown. I,
9688 idiotically, corrected his question. Justice Souter in good faith
9689 wanted to be shown the First Amendment harms. I, like a math teacher,
9690 reframed the question to make the logical point. I had shown them how
9691 they could strike this law of Congress if they wanted to. There were a
9692 hundred places where I could have helped them want to, yet my
9693 stubbornness, my refusal to give in, stopped me. I have stood before
9694 hundreds of audiences trying to persuade; I have used passion in that
9695 effort to persuade; but I
9696
9697 refused to stand before this audience and try to persuade with the
9698 passion I had used elsewhere. It was not the basis on which a court
9699 should decide the issue.
9700 </p><a class="indexterm" name="idp10086832"></a><a class="indexterm" name="idp10087616"></a><p>
9701 Would it have been different if I had argued it differently? Would it
9702 have been different if Don Ayer had argued it? Or Charles Fried? Or
9703 Kathleen Sullivan?
9704 </p><p>
9705 My friends huddled around me to insist it would not. The Court
9706 was not ready, my friends insisted. This was a loss that was destined. It
9707 would take a great deal more to show our society why our framers were
9708 right. And when we do that, we will be able to show that Court.
9709 </p><p>
9710 Maybe, but I doubt it. These Justices have no financial interest in
9711 doing anything except the right thing. They are not lobbied. They have
9712 little reason to resist doing right. I can't help but think that if I had
9713 stepped down from this pretty picture of dispassionate justice, I could
9714 have persuaded.
9715 </p><a class="indexterm" name="idp10090368"></a><p>
9716 And even if I couldn't, then that doesn't excuse what happened in
9717 January. For at the start of this case, one of America's leading
9718 intellectual property professors stated publicly that my bringing this
9719 case was a mistake. <span class="quote">«<span class="quote">The Court is not ready,</span>»</span> Peter Jaszi said; this
9720 issue should not be raised until it is.
9721 </p><p>
9722 After the argument and after the decision, Peter said to me, and
9723 publicly, that he was wrong. But if indeed that Court could not have
9724 been persuaded, then that is all the evidence that's needed to know that
9725 here again Peter was right. Either I was not ready to argue this case in
9726 a way that would do some good or they were not ready to hear this case
9727 in a way that would do some good. Either way, the decision to bring
9728 this case&#8212;a decision I had made four years before&#8212;was wrong.
9729 </p><p>
9730 <span class="strong"><strong>While the reaction</strong></span> to the Sonny
9731 Bono Act itself was almost unanimously negative, the reaction to the
9732 Court's decision was mixed.  No one, at least in the press, tried to
9733 say that extending the term of copyright was a good idea. We had won
9734 that battle over ideas. Where
9735
9736
9737 the decision was praised, it was praised by papers that had been
9738 skeptical of the Court's activism in other cases. Deference was a good
9739 thing, even if it left standing a silly law. But where the decision
9740 was attacked, it was attacked because it left standing a silly and
9741 harmful law. <em class="citetitle">The New York Times</em> wrote in its editorial,
9742 </p><div class="blockquote"><blockquote class="blockquote"><p>
9743 In effect, the Supreme Court's decision makes it likely that we are
9744 seeing the beginning of the end of public domain and the birth of
9745 copyright perpetuity. The public domain has been a grand experiment,
9746 one that should not be allowed to die. The ability to draw freely on
9747 the entire creative output of humanity is one of the reasons we live
9748 in a time of such fruitful creative ferment.
9749 </p></blockquote></div><p>
9750 The best responses were in the cartoons. There was a gaggle of
9751 hilarious images&#8212;of Mickey in jail and the like. The best, from
9752 my view of the case, was Ruben Bolling's, reproduced in figure
9753 <a class="xref" href="#fig-18" title="Figure 13.1. ">13.1</a>. The <span class="quote">«<span class="quote">powerful
9754 and wealthy</span>»</span> line is a bit unfair. But the punch in the face
9755 felt exactly like that.
9756 <a class="indexterm" name="idp10098784"></a>
9757 </p><div class="figure-float" style="float: left;"><div class="figure"><a name="fig-18"></a><p class="title"><b>Figure 13.1. </b></p><div class="figure-contents"><div align="center"><table border="0" summary="manufactured viewport for HTML img" style="cellpadding: 0; cellspacing: 0;" width="100%"><tr><td align="center"><img src="images/tom-the-dancing-bug.png" align="middle" width="100%"></td></tr></table></div><a class="indexterm" name="idp10102000"></a></div></div><br class="figure-break"></div><p>
9758 The image that will always stick in my head is that evoked by the
9759 quote from <em class="citetitle">The New York Times</em>. That <span class="quote">«<span class="quote">grand experiment</span>»</span> we call the
9760 <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,
9761 I shrunk the Constitution.</span>»</span> But I can rarely make light of it. We had
9762 in our Constitution a commitment to free culture. In the case that I
9763 fathered, the Supreme Court effectively renounced that commitment. A
9764 better lawyer would have made them see differently.
9765 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp9759312" class="footnote"><p><a href="#idp9759312" class="para"><sup class="para">[179] </sup></a>
9766
9767 <a class="indexterm" name="idp9760048"></a>
9768 There's a parallel here with pornography that is a bit hard to
9769 describe, but it's a strong one. One phenomenon that the Internet
9770 created was a world of noncommercial pornographers&#8212;people who
9771 were distributing porn but were not making money directly or
9772 indirectly from that distribution.  Such a class didn't exist before
9773 the Internet came into being because the costs of distributing porn
9774 were so high. Yet this new class of distributors got special attention
9775 in the Supreme Court, when the Court struck down the Communications
9776 Decency Act of 1996. It was partly because of the burden on
9777 noncommercial speakers that the statute was found to exceed Congress's
9778 power. The same point could have been made about noncommercial
9779 publishers after the advent of the Internet. The Eric Eldreds of the
9780 world before the Internet were extremely few. Yet one would think it
9781 at least as important to protect the Eldreds of the world as to
9782 protect noncommercial pornographers.</p></div><div id="ftn.idp9783520" class="footnote"><p><a href="#idp9783520" class="para"><sup class="para">[180] </sup></a>
9783
9784 <a class="indexterm" name="idp9784224"></a>
9785 <a class="indexterm" name="idp9785008"></a>
9786 The full text is: <span class="quote">«<span class="quote">Sonny [Bono] wanted the term of copyright
9787 protection to last forever. I am informed by staff that such a change
9788 would violate the Constitution. I invite all of you to work with me to
9789 strengthen our copyright laws in all of the ways available to us. As
9790 you know, there is also Jack Valenti's proposal for a term to last
9791 forever less one day. Perhaps the Committee may look at that next
9792 Congress,</span>»</span> 144 Cong. Rec. H9946, 9951-2 (October 7, 1998).
9793 </p></div><div id="ftn.idp9837696" class="footnote"><p><a href="#idp9837696" class="para"><sup class="para">[181] </sup></a>
9794  Associated Press, <span class="quote">«<span class="quote">Disney Lobbying for Copyright Extension No Mickey
9795 Mouse Effort; Congress OKs Bill Granting Creators 20 More Years,</span>»</span>
9796 <em class="citetitle">Chicago Tribune</em>, 17 October 1998, 22.
9797 </p></div><div id="ftn.idp9839696" class="footnote"><p><a href="#idp9839696" class="para"><sup class="para">[182] </sup></a>
9798  See Nick Brown, <span class="quote">«<span class="quote">Fair Use No More?: Copyright in the Information
9799 Age,</span>»</span> available at
9800 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #49</a>.
9801 </p></div><div id="ftn.idp9841808" class="footnote"><p><a href="#idp9841808" class="para"><sup class="para">[183] </sup></a>
9802
9803 Alan K. Ota, <span class="quote">«<span class="quote">Disney in Washington: The Mouse That Roars,</span>»</span>
9804 <em class="citetitle">Congressional Quarterly This Week</em>, 8 August 1990, available at
9805 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #50</a>.
9806 </p></div><div id="ftn.idp9858272" class="footnote"><p><a href="#idp9858272" class="para"><sup class="para">[184] </sup></a>
9807  <em class="citetitle">United States</em> v. <em class="citetitle">Lopez</em>, 514 U.S. 549, 564 (1995).
9808 </p></div><div id="ftn.idp9861520" class="footnote"><p><a href="#idp9861520" class="para"><sup class="para">[185] </sup></a>
9809
9810 <em class="citetitle">United States</em> v. <em class="citetitle">Morrison</em>, 529 U.S. 598 (2000).
9811 </p></div><div id="ftn.idp9863760" class="footnote"><p><a href="#idp9863760" class="para"><sup class="para">[186] </sup></a>
9812
9813 If it is a principle about enumerated powers, then the principle
9814 carries from one enumerated power to another. The animating point in
9815 the context of the Commerce Clause was that the interpretation offered
9816 by the government would allow the government unending power to
9817 regulate commerce&#8212;the limitation to interstate commerce
9818 notwithstanding. The same point is true in the context of the
9819 Copyright Clause. Here, too, the government's interpretation would
9820 allow the government unending power to regulate copyrights&#8212;the
9821 limitation to <span class="quote">«<span class="quote">limited times</span>»</span> notwithstanding.
9822 </p></div><div id="ftn.idp9878176" class="footnote"><p><a href="#idp9878176" class="para"><sup class="para">[187] </sup></a>
9823
9824 Brief of the Nashville Songwriters Association, <em class="citetitle">Eldred</em>
9825 v. <em class="citetitle">Ashcroft</em>, 537 U.S.  186 (2003) (No. 01-618), n.10, available
9826 at <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #51</a>.
9827 </p></div><div id="ftn.idp9885232" class="footnote"><p><a href="#idp9885232" class="para"><sup class="para">[188] </sup></a>
9828  The figure of 2 percent is an extrapolation from the study by the
9829                 Congressional
9830 Research Service, in light of the estimated renewal ranges. See Brief
9831 of Petitioners, <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 7, available at
9832 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #52</a>.
9833 </p></div><div id="ftn.idp9903760" class="footnote"><p><a href="#idp9903760" class="para"><sup class="para">[189] </sup></a>
9834
9835 See David G. Savage, <span class="quote">«<span class="quote">High Court Scene of Showdown on Copyright Law,</span>»</span>
9836 <em class="citetitle">Los Angeles Times</em>, 6 October 2002; David Streitfeld, <span class="quote">«<span class="quote">Classic Movies,
9837 Songs, Books at Stake; Supreme Court Hears Arguments Today on Striking
9838 Down Copyright Extension,</span>»</span> <em class="citetitle">Orlando Sentinel Tribune</em>, 9 October 2002.
9839 </p></div><div id="ftn.idp9909072" class="footnote"><p><a href="#idp9909072" class="para"><sup class="para">[190] </sup></a>
9840
9841 Brief of Hal Roach Studios and Michael Agee as Amicus Curiae
9842 Supporting the Petitoners, <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 537
9843 U.S. 186 (2003) (No. 01- 618), 12. See also Brief of Amicus Curiae
9844 filed on behalf of Petitioners by the Internet Archive, <em class="citetitle">Eldred</em>
9845 v. <em class="citetitle">Ashcroft</em>, available at
9846 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #53</a>.
9847 </p></div><div id="ftn.idp9937984" class="footnote"><p><a href="#idp9937984" class="para"><sup class="para">[191] </sup></a>
9848
9849 Jason Schultz, <span class="quote">«<span class="quote">The Myth of the 1976 Copyright `Chaos' Theory,</span>»</span> 20
9850 December 2002, available at
9851 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #54</a>.
9852 </p></div><div id="ftn.idp9997856" class="footnote"><p><a href="#idp9997856" class="para"><sup class="para">[192] </sup></a>
9853
9854 Brief of Amici Dr. Seuss Enterprise et al., <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, 537
9855 U.S.  (2003) (No. 01-618), 19.
9856 </p></div><div id="ftn.idp10000672" class="footnote"><p><a href="#idp10000672" class="para"><sup class="para">[193] </sup></a>
9857
9858 Dinitia Smith, <span class="quote">«<span class="quote">Immortal Words, Immortal Royalties? Even Mickey
9859 Mouse Joins the Fray,</span>»</span> <em class="citetitle">New York Times</em>, 28 March 1998, B7.
9860 </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>
9861 <span class="strong"><strong>The day</strong></span>
9862 <em class="citetitle">Eldred</em> was decided, fate would have it that I
9863 was to travel to Washington, D.C. (The day the rehearing petition in
9864 <em class="citetitle">Eldred</em> was denied&#8212;meaning the case was
9865 really finally over&#8212;fate would have it that I was giving a
9866 speech to technologists at Disney World.)  This was a particularly
9867 long flight to my least favorite city. The drive into the city from
9868 Dulles was delayed because of traffic, so I opened up my computer and
9869 wrote an op-ed piece.
9870 </p><a class="indexterm" name="idp10109712"></a><p>
9871 It was an act of contrition. During the whole of the flight from San
9872 Francisco to Washington, I had heard over and over again in my head
9873 the same advice from Don Ayer: You need to make them see why it is
9874 important. And alternating with that command was the question of
9875 Justice Kennedy: <span class="quote">«<span class="quote">For all these years the act has impeded progress in
9876 science and the useful arts. I just don't see any empirical evidence for
9877 that.</span>»</span> And so, having failed in the argument of constitutional principle,
9878 finally, I turned to an argument of politics.
9879 </p><p>
9880 <em class="citetitle">The New York Times</em> published the piece. In it, I proposed a simple
9881 fix: Fifty years after a work has been published, the copyright owner
9882
9883 would be required to register the work and pay a small fee. If he paid
9884 the fee, he got the benefit of the full term of copyright. If he did not,
9885 the work passed into the public domain.
9886 </p><p>
9887 We called this the Eldred Act, but that was just to give it a name.
9888 Eric Eldred was kind enough to let his name be used once again, but as
9889 he said early on, it won't get passed unless it has another name.
9890 </p><p>
9891 Or another two names. For depending upon your perspective, this
9892 is either the <span class="quote">«<span class="quote">Public Domain Enhancement Act</span>»</span> or the <span class="quote">«<span class="quote">Copyright
9893 Term Deregulation Act.</span>»</span> Either way, the essence of the idea is clear
9894 and obvious: Remove copyright where it is doing nothing except
9895 blocking access and the spread of knowledge. Leave it for as long as
9896 Congress allows for those works where its worth is at least $1. But for
9897 everything else, let the content go.
9898 </p><a class="indexterm" name="idp10115520"></a><p>
9899 The reaction to this idea was amazingly strong. Steve Forbes endorsed
9900 it in an editorial. I received an avalanche of e-mail and letters
9901 expressing support. When you focus the issue on lost creativity,
9902 people can see the copyright system makes no sense. As a good
9903 Republican might say, here government regulation is simply getting in
9904 the way of innovation and creativity. And as a good Democrat might
9905 say, here the government is blocking access and the spread of
9906 knowledge for no good reason. Indeed, there is no real difference
9907 between Democrats and Republicans on this issue. Anyone can recognize
9908 the stupid harm of the present system.
9909 </p><p>
9910 Indeed, many recognized the obvious benefit of the registration
9911 requirement.  For one of the hardest things about the current system
9912 for people who want to license content is that there is no obvious
9913 place to look for the current copyright owners. Since registration is
9914 not required, since marking content is not required, since no
9915 formality at all is required, it is often impossibly hard to locate
9916 copyright owners to ask permission to use or license their work. This
9917 system would lower these costs, by establishing at least one registry
9918 where copyright owners could be identified.
9919 </p><a class="indexterm" name="idp10118368"></a><a class="indexterm" name="idp10119184"></a><p>
9920
9921 As I described in chapter <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>, formalities in copyright law were
9922 removed in 1976, when Congress followed the Europeans by abandoning
9923 any formal requirement before a copyright is granted.<a href="#ftn.idp10121744" class="footnote" name="idp10121744"><sup class="footnote">[194]</sup></a>
9924 The Europeans are said to view copyright as a <span class="quote">«<span class="quote">natural right.</span>»</span> Natural
9925 rights don't need forms to exist. Traditions, like the Anglo-American
9926 tradition that required copyright owners to follow form if their
9927 rights were to be protected, did not, the Europeans thought, properly
9928 respect the dignity of the author. My right as a creator turns on my
9929 creativity, not upon the special favor of the government.
9930 </p><p>
9931 That's great rhetoric. It sounds wonderfully romantic. But it is
9932 absurd copyright policy. It is absurd especially for authors, because
9933 a world without formalities harms the creator. The ability to spread
9934 <span class="quote">«<span class="quote">Walt Disney creativity</span>»</span> is destroyed when there is no simple way to
9935 know what's protected and what's not.
9936 </p><a class="indexterm" name="idp10127872"></a><p>
9937 The fight against formalities achieved its first real victory in
9938 Berlin in 1908. International copyright lawyers amended the Berne
9939 Convention in 1908, to require copyright terms of life plus fifty
9940 years, as well as the abolition of copyright formalities. The
9941 formalities were hated because the stories of inadvertent loss were
9942 increasingly common. It was as if a Charles Dickens character ran all
9943 copyright offices, and the failure to dot an <em class="citetitle">i</em> or cross a
9944 <em class="citetitle">t</em> resulted in the loss of widows' only income.
9945 </p><p>
9946 These complaints were real and sensible. And the strictness of the
9947 formalities, especially in the United States, was absurd. The law
9948 should always have ways of forgiving innocent mistakes. There is no
9949 reason copyright law couldn't, as well. Rather than abandoning
9950 formalities totally, the response in Berlin should have been to
9951 embrace a more equitable system of registration.
9952 </p><p>
9953 Even that would have been resisted, however, because registration
9954 in the nineteenth and twentieth centuries was still expensive. It was
9955 also a hassle. The abolishment of formalities promised not only to save
9956 the starving widows, but also to lighten an unnecessary regulatory
9957                 burden
9958 imposed upon creators.
9959 </p><p>
9960 In addition to the practical complaint of authors in 1908, there was
9961 a moral claim as well. There was no reason that creative property
9962
9963
9964 should be a second-class form of property. If a carpenter builds a
9965 table, his rights over the table don't depend upon filing a form with
9966 the government.  He has a property right over the table <span class="quote">«<span class="quote">naturally,</span>»</span>
9967 and he can assert that right against anyone who would steal the table,
9968 whether or not he has informed the government of his ownership of the
9969 table.
9970 </p><p>
9971 This argument is correct, but its implications are misleading. For the
9972 argument in favor of formalities does not depend upon creative
9973 property being second-class property. The argument in favor of
9974 formalities turns upon the special problems that creative property
9975 presents.  The law of formalities responds to the special physics of
9976 creative property, to assure that it can be efficiently and fairly
9977 spread.
9978 </p><p>
9979 No one thinks, for example, that land is second-class property just
9980 because you have to register a deed with a court if your sale of land
9981 is to be effective. And few would think a car is second-class property
9982 just because you must register the car with the state and tag it with
9983 a license.  In both of those cases, everyone sees that there is an
9984 important reason to secure registration&#8212;both because it makes
9985 the markets more efficient and because it better secures the rights of
9986 the owner. Without a registration system for land, landowners would
9987 perpetually have to guard their property. With registration, they can
9988 simply point the police to a deed. Without a registration system for
9989 cars, auto theft would be much easier. With a registration system, the
9990 thief has a high burden to sell a stolen car. A slight burden is
9991 placed on the property owner, but those burdens produce a much better
9992 system of protection for property generally.
9993 </p><p>
9994 It is similarly special physics that makes formalities important in
9995 copyright law. Unlike a carpenter's table, there's nothing in nature that
9996 makes it relatively obvious who might own a particular bit of creative
9997 property. A recording of Lyle Lovett's latest album can exist in a billion
9998 places without anything necessarily linking it back to a particular
9999 owner. And like a car, there's no way to buy and sell creative property
10000 with confidence unless there is some simple way to authenticate who is
10001 the author and what rights he has. Simple transactions are destroyed in
10002
10003
10004 a world without formalities. Complex, expensive,
10005 <span class="emphasis"><em>lawyer</em></span> transactions take their place.
10006 <a class="indexterm" name="idp10137808"></a>
10007 </p><p>
10008 This was the understanding of the problem with the Sonny Bono
10009 Act that we tried to demonstrate to the Court. This was the part it
10010 didn't <span class="quote">«<span class="quote">get.</span>»</span> Because we live in a system without formalities, there is no
10011 way easily to build upon or use culture from our past. If copyright
10012 terms were, as Justice Story said they would be, <span class="quote">«<span class="quote">short,</span>»</span> then this
10013 wouldn't matter much. For fourteen years, under the framers' system, a
10014 work would be presumptively controlled. After fourteen years, it would
10015 be presumptively uncontrolled.
10016 </p><p>
10017 But now that copyrights can be just about a century long, the
10018 inability to know what is protected and what is not protected becomes
10019 a huge and obvious burden on the creative process. If the only way a
10020 library can offer an Internet exhibit about the New Deal is to hire a
10021 lawyer to clear the rights to every image and sound, then the
10022 copyright system is burdening creativity in a way that has never been
10023 seen before <span class="emphasis"><em>because there are no formalities</em></span>.
10024 </p><p>
10025 The Eldred Act was designed to respond to exactly this problem. If
10026 it is worth $1 to you, then register your work and you can get the
10027 longer term. Others will know how to contact you and, therefore, how
10028 to get your permission if they want to use your work. And you will get
10029 the benefit of an extended copyright term.
10030 </p><p>
10031 If it isn't worth it to you to register to get the benefit of an extended
10032 term, then it shouldn't be worth it for the government to defend your
10033 monopoly over that work either. The work should pass into the public
10034 domain where anyone can copy it, or build archives with it, or create a
10035 movie based on it. It should become free if it is not worth $1 to you.
10036 </p><p>
10037 Some worry about the burden on authors. Won't the burden of
10038 registering the work mean that the $1 is really misleading? Isn't the
10039 hassle worth more than $1? Isn't that the real problem with
10040 registration?
10041 </p><p>
10042 It is. The hassle is terrible. The system that exists now is awful. I
10043 completely agree that the Copyright Office has done a terrible job (no
10044 doubt because they are terribly funded) in enabling simple and cheap
10045
10046
10047 registrations. Any real solution to the problem of formalities must
10048 address the real problem of <span class="emphasis"><em>governments</em></span> standing
10049 at the core of any system of formalities. In this book, I offer such a
10050 solution. That solution essentially remakes the Copyright Office. For
10051 now, assume it was Amazon that ran the registration system. Assume it
10052 was one-click registration.  The Eldred Act would propose a simple,
10053 one-click registration fifty years after a work was published. Based
10054 upon historical data, that system would move up to 98 percent of
10055 commercial work, commercial work that no longer had a commercial life,
10056 into the public domain within fifty years. What do you think?
10057 </p><a class="indexterm" name="idp10146272"></a><p>
10058 <span class="strong"><strong>When Steve Forbes</strong></span> endorsed the
10059 idea, some in Washington began to pay attention. Many people contacted
10060 me pointing to representatives who might be willing to introduce the
10061 Eldred Act. And I had a few who directly suggested that they might be
10062 willing to take the first step.
10063 </p><a class="indexterm" name="idp10148432"></a><p>
10064 One representative, Zoe Lofgren of California, went so far as to get
10065 the bill drafted. The draft solved any problem with international
10066 law. It imposed the simplest requirement upon copyright owners
10067 possible. In May 2003, it looked as if the bill would be
10068 introduced. On May 16, I posted on the Eldred Act blog, <span class="quote">«<span class="quote">we are
10069 close.</span>»</span> There was a general reaction in the blog community that
10070 something good might happen here.
10071 </p><p>
10072 But at this stage, the lobbyists began to intervene. Jack Valenti and
10073 the MPAA general counsel came to the congresswoman's office to give
10074 the view of the MPAA. Aided by his lawyer, as Valenti told me, Valenti
10075 informed the congresswoman that the MPAA would oppose the Eldred
10076 Act. The reasons are embarrassingly thin. More importantly, their
10077 thinness shows something clear about what this debate is really about.
10078 </p><p>
10079 The MPAA argued first that Congress had <span class="quote">«<span class="quote">firmly rejected the central
10080 concept in the proposed bill</span>»</span>&#8212;that copyrights be renewed. That
10081 was true, but irrelevant, as Congress's <span class="quote">«<span class="quote">firm rejection</span>»</span> had occurred
10082
10083 long before the Internet made subsequent uses much more likely.
10084 Second, they argued that the proposal would harm poor copyright
10085 owners&#8212;apparently those who could not afford the $1 fee. Third,
10086 they argued that Congress had determined that extending a copyright
10087 term would encourage restoration work. Maybe in the case of the small
10088 percentage of work covered by copyright law that is still commercially
10089 valuable, but again this was irrelevant, as the proposal would not cut
10090 off the extended term unless the $1 fee was not paid. Fourth, the MPAA
10091 argued that the bill would impose <span class="quote">«<span class="quote">enormous</span>»</span> costs, since a
10092 registration system is not free. True enough, but those costs are
10093 certainly less than the costs of clearing the rights for a copyright
10094 whose owner is not known. Fifth, they worried about the risks if the
10095 copyright to a story underlying a film were to pass into the public
10096 domain. But what risk is that? If it is in the public domain, then the
10097 film is a valid derivative use.
10098 </p><p>
10099 Finally, the MPAA argued that existing law enabled copyright owners to
10100 do this if they wanted. But the whole point is that there are
10101 thousands of copyright owners who don't even know they have a
10102 copyright to give. Whether they are free to give away their copyright
10103 or not&#8212;a controversial claim in any case&#8212;unless they know
10104 about a copyright, they're not likely to.
10105 </p><p>
10106 <span class="strong"><strong>At the beginning</strong></span> of this book, I
10107 told two stories about the law reacting to changes in technology. In
10108 the one, common sense prevailed.  In the other, common sense was
10109 delayed. The difference between the two stories was the power of the
10110 opposition&#8212;the power of the side that fought to defend the
10111 status quo. In both cases, a new technology threatened old
10112 interests. But in only one case did those interest's have the power to
10113 protect themselves against this new competitive threat.
10114 </p><p>
10115 I used these two cases as a way to frame the war that this book has
10116 been about. For here, too, a new technology is forcing the law to react.
10117 And here, too, we should ask, is the law following or resisting common
10118 sense? If common sense supports the law, what explains this common
10119 sense?
10120 </p><p>
10121
10122
10123 When the issue is piracy, it is right for the law to back the
10124 copyright owners. The commercial piracy that I described is wrong and
10125 harmful, and the law should work to eliminate it. When the issue is
10126 p2p sharing, it is easy to understand why the law backs the owners
10127 still: Much of this sharing is wrong, even if much is harmless. When
10128 the issue is copyright terms for the Mickey Mouses of the world, it is
10129 possible still to understand why the law favors Hollywood: Most people
10130 don't recognize the reasons for limiting copyright terms; it is thus
10131 still possible to see good faith within the resistance.
10132 </p><a class="indexterm" name="idp10159488"></a><p>
10133 But when the copyright owners oppose a proposal such as the Eldred
10134 Act, then, finally, there is an example that lays bare the naked
10135 selfinterest driving this war. This act would free an extraordinary
10136 range of content that is otherwise unused. It wouldn't interfere with
10137 any copyright owner's desire to exercise continued control over his
10138 content. It would simply liberate what Kevin Kelly calls the <span class="quote">«<span class="quote">Dark
10139 Content</span>»</span> that fills archives around the world. So when the warriors
10140 oppose a change like this, we should ask one simple question:
10141 </p><p>
10142 What does this industry really want?
10143 </p><p>
10144 With very little effort, the warriors could protect their content. So
10145 the effort to block something like the Eldred Act is not really about
10146 protecting <span class="emphasis"><em>their</em></span> content. The effort to block the
10147 Eldred Act is an effort to assure that nothing more passes into the
10148 public domain. It is another step to assure that the public domain
10149 will never compete, that there will be no use of content that is not
10150 commercially controlled, and that there will be no commercial use of
10151 content that doesn't require <span class="emphasis"><em>their</em></span> permission
10152 first.
10153 </p><p>
10154 The opposition to the Eldred Act reveals how extreme the other side
10155 is. The most powerful and sexy and well loved of lobbies really has as
10156 its aim not the protection of <span class="quote">«<span class="quote">property</span>»</span> but the rejection of a
10157 tradition.  Their aim is not simply to protect what is
10158 theirs. <span class="emphasis"><em>Their aim is to assure that all there is is what is
10159 theirs</em></span>.
10160 </p><p>
10161 It is not hard to understand why the warriors take this view. It is not
10162 hard to see why it would benefit them if the competition of the public
10163
10164
10165 domain tied to the Internet could somehow be quashed. Just as RCA
10166 feared the competition of FM, they fear the competition of a public
10167 domain connected to a public that now has the means to create with it
10168 and to share its own creation.
10169 </p><a class="indexterm" name="idp10166480"></a><a class="indexterm" name="idp10167264"></a><p>
10170 What is hard to understand is why the public takes this view. It is
10171 as if the law made airplanes trespassers. The MPAA stands with the
10172 Causbys and demands that their remote and useless property rights be
10173 respected, so that these remote and forgotten copyright holders might
10174 block the progress of others.
10175 </p><p>
10176 All this seems to follow easily from this untroubled acceptance of the
10177 <span class="quote">«<span class="quote">property</span>»</span> in intellectual property. Common sense supports it, and so
10178 long as it does, the assaults will rain down upon the technologies of
10179 the Internet. The consequence will be an increasing <span class="quote">«<span class="quote">permission
10180 society.</span>»</span>  The past can be cultivated only if you can identify the
10181 owner and gain permission to build upon his work. The future will be
10182 controlled by this dead (and often unfindable) hand of the past.
10183 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp10121744" class="footnote"><p><a href="#idp10121744" class="para"><sup class="para">[194] </sup></a>
10184
10185 <a class="indexterm" name="idp10122448"></a>
10186 Until the 1908 Berlin Act of the Berne Convention, national copyright
10187 legislation sometimes made protection depend upon compliance with
10188 formalities such as registration, deposit, and affixation of notice of
10189 the author's claim of copyright. However, starting with the 1908 act,
10190 every text of the Convention has provided that <span class="quote">«<span class="quote">the enjoyment and the
10191 exercise</span>»</span> of rights guaranteed by the Convention <span class="quote">«<span class="quote">shall not be subject
10192 to any formality.</span>»</span>  The prohibition against formalities is presently
10193 embodied in Article 5(2) of the Paris Text of the Berne
10194 Convention. Many countries continue to impose some form of deposit or
10195 registration requirement, albeit not as a condition of
10196 copyright. French law, for example, requires the deposit of copies of
10197 works in national repositories, principally the National Museum.
10198 Copies of books published in the United Kingdom must be deposited in
10199 the British Library. The German Copyright Act provides for a Registrar
10200 of Authors where the author's true name can be filed in the case of
10201 anonymous or pseudonymous works. Paul Goldstein, <em class="citetitle">International
10202 Intellectual Property Law, Cases and Materials</em> (New York: Foundation
10203 Press, 2001), 153&#8211;54.  </p></div></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-conclusion"></a>Chapter . Conclusion</h1></div></div></div><a class="indexterm" name="idxafricamedicationsforhivpatientsin"></a><a class="indexterm" name="idxaidsmedications"></a><a class="indexterm" name="idxantiretroviraldrugs"></a><a class="indexterm" name="idxdevelopingcountriesforeignpatentcostsin2"></a><a class="indexterm" name="idxdrugspharmaceutical"></a><a class="indexterm" name="idxhivaidstherapies"></a><p>
10204 <span class="strong"><strong>There are more</strong></span> than 35 million
10205 people with the AIDS virus worldwide. Twenty-five million of them live
10206 in sub-Saharan Africa.  Seventeen million have already died. Seventeen
10207 million Africans is proportional percentage-wise to seven million
10208 Americans. More importantly, it is seventeen million Africans.
10209 </p><p>
10210 There is no cure for AIDS, but there are drugs to slow its
10211 progression.  These antiretroviral therapies are still experimental,
10212 but they have already had a dramatic effect. In the United States,
10213 AIDS patients who regularly take a cocktail of these drugs increase
10214 their life expectancy by ten to twenty years. For some, the drugs make
10215 the disease almost invisible.
10216 </p><p>
10217 These drugs are expensive. When they were first introduced in the
10218 United States, they cost between $10,000 and $15,000 per person per
10219 year. Today, some cost $25,000 per year. At these prices, of course, no
10220 African nation can afford the drugs for the vast majority of its
10221                 population:
10222 $15,000 is thirty times the per capita gross national product of
10223 Zimbabwe. At these prices, the drugs are totally unavailable.<a href="#ftn.idp10184992" class="footnote" name="idp10184992"><sup class="footnote">[195]</sup></a>
10224 </p><a class="indexterm" name="idxpatentsonpharmaceuticals"></a><a class="indexterm" name="idxpharmaceuticalpatents"></a><p>
10225
10226 These prices are not high because the ingredients of the drugs are
10227 expensive. These prices are high because the drugs are protected by
10228 patents. The drug companies that produced these life-saving mixes
10229 enjoy at least a twenty-year monopoly for their inventions. They use
10230 that monopoly power to extract the most they can from the market. That
10231 power is in turn used to keep the prices high.
10232 </p><p>
10233 There are many who are skeptical of patents, especially drug
10234 patents. I am not. Indeed, of all the areas of research that might be
10235 supported by patents, drug research is, in my view, the clearest case
10236 where patents are needed. The patent gives the drug company some
10237 assurance that if it is successful in inventing a new drug to treat a
10238 disease, it will be able to earn back its investment and more. This is
10239 socially an extremely valuable incentive. I am the last person who
10240 would argue that the law should abolish it, at least without other
10241 changes.
10242 </p><p>
10243 But it is one thing to support patents, even drug patents. It is
10244 another thing to determine how best to deal with a crisis. And as
10245 African leaders began to recognize the devastation that AIDS was
10246 bringing, they started looking for ways to import HIV treatments at
10247 costs significantly below the market price.
10248 </p><a class="indexterm" name="idxinternationallaw2"></a><a class="indexterm" name="idxparallelimportation"></a><a class="indexterm" name="idxsouthafricarepublicofpharmaceuticalimportsby"></a><p>
10249 In 1997, South Africa tried one tack. It passed a law to allow the
10250 importation of patented medicines that had been produced or sold in
10251 another nation's market with the consent of the patent owner. For
10252 example, if the drug was sold in India, it could be imported into
10253 Africa from India. This is called <span class="quote">«<span class="quote">parallel importation,</span>»</span> and it is
10254 generally permitted under international trade law and is specifically
10255 permitted within the European Union.<a href="#ftn.idp10199568" class="footnote" name="idp10199568"><sup class="footnote">[196]</sup></a>
10256 </p><a class="indexterm" name="idp10202848"></a><p>
10257 However, the United States government opposed the bill. Indeed, more
10258 than opposed. As the International Intellectual Property Association
10259 characterized it, <span class="quote">«<span class="quote">The U.S. government pressured South Africa &#8230;
10260 not to permit compulsory licensing or parallel
10261 imports.</span>»</span><a href="#ftn.idp9806816" class="footnote" name="idp9806816"><sup class="footnote">[197]</sup></a>
10262 Through the Office of the United States Trade Representative, the
10263 government asked South Africa to change the law&#8212;and to add
10264 pressure to that request, in 1998, the USTR listed South Africa for
10265 possible trade sanctions.
10266
10267 That same year, more than forty pharmaceutical companies began
10268 proceedings in the South African courts to challenge the government's
10269 actions. The United States was then joined by other governments from
10270 the EU. Their claim, and the claim of the pharmaceutical companies,
10271 was that South Africa was violating its obligations under
10272 international law by discriminating against a particular kind of
10273 patent&#8212; pharmaceutical patents. The demand of these governments,
10274 with the United States in the lead, was that South Africa respect
10275 these patents as it respects any other patent, regardless of any
10276 effect on the treatment of AIDS within South Africa.<a href="#ftn.idp10206704" class="footnote" name="idp10206704"><sup class="footnote">[198]</sup></a>
10277 </p><a class="indexterm" name="idp10209824"></a><p>
10278 We should place the intervention by the United States in context.  No
10279 doubt patents are not the most important reason that Africans don't
10280 have access to drugs. Poverty and the total absence of an effective
10281 health care infrastructure matter more. But whether patents are the
10282 most important reason or not, the price of drugs has an effect on
10283 their demand, and patents affect price. And so, whether massive or
10284 marginal, there was an effect from our government's intervention to
10285 stop the flow of medications into Africa.
10286 </p><p>
10287 By stopping the flow of HIV treatment into Africa, the United
10288 States government was not saving drugs for United States citizens.
10289 This is not like wheat (if they eat it, we can't); instead, the flow that the
10290 United States intervened to stop was, in effect, a flow of knowledge:
10291 information about how to take chemicals that exist within Africa, and
10292 turn those chemicals into drugs that would save 15 to 30 million lives.
10293 </p><p>
10294 Nor was the intervention by the United States going to protect the
10295 profits of United States drug companies&#8212;at least, not substantially. It
10296 was not as if these countries were in the position to buy the drugs for
10297 the prices the drug companies were charging. Again, the Africans are
10298 wildly too poor to afford these drugs at the offered prices. Stopping the
10299 parallel import of these drugs would not substantially increase the sales
10300 by U.S. companies.
10301 </p><p>
10302 Instead, the argument in favor of restricting this flow of
10303 information, which was needed to save the lives of millions, was an
10304 argument
10305
10306 about the sanctity of property.<a href="#ftn.idp10214400" class="footnote" name="idp10214400"><sup class="footnote">[199]</sup></a>
10307 It was because <span class="quote">«<span class="quote">intellectual property</span>»</span> would be violated that these
10308 drugs should not flow into Africa. It was a principle about the
10309 importance of <span class="quote">«<span class="quote">intellectual property</span>»</span> that led these government actors
10310 to intervene against the South African response to AIDS.
10311 </p><a class="indexterm" name="idp10221664"></a><p>
10312 Now just step back for a moment. There will be a time thirty years
10313 from now when our children look back at us and ask, how could we have
10314 let this happen? How could we allow a policy to be pursued whose
10315 direct cost would be to speed the death of 15 to 30 million Africans,
10316 and whose only real benefit would be to uphold the <span class="quote">«<span class="quote">sanctity</span>»</span> of an
10317 idea?  What possible justification could there ever be for a policy
10318 that results in so many deaths? What exactly is the insanity that
10319 would allow so many to die for such an abstraction?
10320 </p><a class="indexterm" name="idxcorporationsinpharmaceuticalindustry"></a><p>
10321 Some blame the drug companies. I don't. They are corporations.
10322 Their managers are ordered by law to make money for the corporation.
10323 They push a certain patent policy not because of ideals, but because it is
10324 the policy that makes them the most money. And it only makes them the
10325 most money because of a certain corruption within our political system&#8212;
10326 a corruption the drug companies are certainly not responsible for.
10327 </p><p>
10328 The corruption is our own politicians' failure of integrity. For the
10329 drug companies would love&#8212;they say, and I believe them&#8212;to
10330 sell their drugs as cheaply as they can to countries in Africa and
10331 elsewhere.  There are issues they'd have to resolve to make sure the
10332 drugs didn't get back into the United States, but those are mere
10333 problems of technology.  They could be overcome.
10334 </p><a class="indexterm" name="idxintellectualpropertyrightsofdrugpatents"></a><p>
10335 A different problem, however, could not be overcome. This is the
10336 fear of the grandstanding politician who would call the presidents of
10337 the drug companies before a Senate or House hearing, and ask, <span class="quote">«<span class="quote">How
10338 is it you can sell this HIV drug in Africa for only $1 a pill, but the same
10339 drug would cost an American $1,500?</span>»</span> Because there is no <span class="quote">«<span class="quote">sound
10340 bite</span>»</span> answer to that question, its effect would be to induce regulation
10341 of prices in America. The drug companies thus avoid this spiral by
10342 avoiding the first step. They reinforce the idea that property should be
10343
10344 sacred. They adopt a rational strategy in an irrational context, with the
10345 unintended consequence that perhaps millions die. And that rational
10346 strategy thus becomes framed in terms of this ideal&#8212;the sanctity of an
10347 idea called <span class="quote">«<span class="quote">intellectual property.</span>»</span>
10348 </p><a class="indexterm" name="idp10232640"></a><a class="indexterm" name="idp10233888"></a><a class="indexterm" name="idp10235152"></a><a class="indexterm" name="idp10236464"></a><a class="indexterm" name="idp10237904"></a><a class="indexterm" name="idp10239152"></a><a class="indexterm" name="idp10240400"></a><p>
10349 So when the common sense of your child confronts you, what will
10350 you say? When the common sense of a generation finally revolts
10351 against what we have done, how will we justify what we have done?
10352 What is the argument?
10353 </p><p>
10354 A sensible patent policy could endorse and strongly support the patent
10355 system without having to reach everyone everywhere in exactly the same
10356 way. Just as a sensible copyright policy could endorse and strongly
10357 support a copyright system without having to regulate the spread of
10358 culture perfectly and forever, a sensible patent policy could endorse
10359 and strongly support a patent system without having to block the
10360 spread of drugs to a country not rich enough to afford market prices
10361 in any case. A sensible policy, in other words, could be a balanced
10362 policy. For most of our history, both copyright and patent policies
10363 were balanced in just this sense.
10364 </p><a class="indexterm" name="idp10243408"></a><a class="indexterm" name="idp10244688"></a><a class="indexterm" name="idp10246032"></a><p>
10365 But we as a culture have lost this sense of balance. We have lost the
10366 critical eye that helps us see the difference between truth and
10367 extremism.  A certain property fundamentalism, having no connection to
10368 our tradition, now reigns in this culture&#8212;bizarrely, and with
10369 consequences more grave to the spread of ideas and culture than almost
10370 any other single policy decision that we as a democracy will make.
10371 </p><a class="indexterm" name="idp10247552"></a><p>
10372 <span class="strong"><strong>A simple idea</strong></span> blinds us, and under
10373 the cover of darkness, much happens that most of us would reject if
10374 any of us looked. So uncritically do we accept the idea of property in
10375 ideas that we don't even notice how monstrous it is to deny ideas to a
10376 people who are dying without them. So uncritically do we accept the
10377 idea of property in culture that we don't even question when the
10378 control of that property removes our
10379
10380 ability, as a people, to develop our culture democratically. Blindness
10381 becomes our common sense. And the challenge for anyone who would
10382 reclaim the right to cultivate our culture is to find a way to make
10383 this common sense open its eyes.
10384 </p><p>
10385 So  far, common sense sleeps. There is no revolt. Common sense
10386 does not yet see what there could be to revolt about. The extremism
10387 that now dominates this debate fits with ideas that seem natural, and
10388 that fit is reinforced by the RCAs of our day. They wage a frantic war
10389 to fight <span class="quote">«<span class="quote">piracy,</span>»</span> and devastate a culture for creativity. They defend
10390 the idea of <span class="quote">«<span class="quote">creative property,</span>»</span> while transforming real creators into
10391 modern-day sharecroppers. They are insulted by the idea that rights
10392 should be balanced, even though each of the major players in this
10393 content war was itself a beneficiary of a more balanced ideal. The
10394 hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even
10395 noticed. Powerful lobbies, complex issues, and MTV attention spans
10396 produce the <span class="quote">«<span class="quote">perfect storm</span>»</span> for free culture.
10397 </p><a class="indexterm" name="idp10253984"></a><a class="indexterm" name="idp10254800"></a><a class="indexterm" name="idxintellectualpropertyrightsinternationalorganizationonissuesof"></a><a class="indexterm" name="idp10257616"></a><a class="indexterm" name="idp10258720"></a><a class="indexterm" name="idp10259552"></a><a class="indexterm" name="idp10260384"></a><a class="indexterm" name="idp10261216"></a><a class="indexterm" name="idp10262320"></a><a class="indexterm" name="idp10263152"></a><a class="indexterm" name="idxworldintellectualpropertyorganizationwipo"></a><a class="indexterm" name="idp10265632"></a><a class="indexterm" name="idp10266448"></a><a class="indexterm" name="idp10267280"></a><a class="indexterm" name="idxbiomedicalresearch"></a><p>
10398 <span class="strong"><strong>In August 2003</strong></span>, a fight broke out
10399 in the United States about a decision by the World Intellectual
10400 Property Organization to cancel a meeting.<a href="#ftn.idp10270704" class="footnote" name="idp10270704"><sup class="footnote">[200]</sup></a>
10401 At the request of a wide range of interests, WIPO had decided to hold
10402 a meeting to discuss <span class="quote">«<span class="quote">open and collaborative projects to create public
10403 goods.</span>»</span> These are projects that have been successful in producing
10404 public goods without relying exclusively upon a proprietary use of
10405 intellectual property. Examples include the Internet and the World
10406 Wide Web, both of which were developed on the basis of protocols in
10407 the public domain. It included an emerging trend to support open
10408 academic journals, including the Public Library of Science project
10409 that I describe in chapter
10410 <a class="xref" href="#c-afterword" title="Chapter . Afterword"></a>.  It
10411 included a project to develop single nucleotide polymorphisms (SNPs),
10412 which are thought to have great significance in biomedical
10413 research. (That nonprofit project comprised a consortium of the
10414 Wellcome Trust and pharmaceutical and technological companies,
10415 including Amersham Biosciences, AstraZeneca,
10416
10417 Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche,
10418 Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It
10419 included the Global Positioning System, which Ronald Reagan set free
10420 in the early 1980s. And it included <span class="quote">«<span class="quote">open source and free software.</span>»</span>
10421 </p><a class="indexterm" name="idp10279952"></a><p>
10422 The aim of the meeting was to consider this wide range of projects
10423 from one common perspective: that none of these projects relied upon
10424 intellectual property extremism. Instead, in all of them, intellectual
10425 property was balanced by agreements to keep access open or to impose
10426 limitations on the way in which proprietary claims might be used.
10427 </p><a class="indexterm" name="idxlessiglawrenceininternationaldebateonintellectualproperty"></a><p>
10428 From the perspective of this book, then, the conference was ideal.<a href="#ftn.idp10284240" class="footnote" name="idp10284240"><sup class="footnote">[201]</sup></a>
10429 The projects within its scope included both commercial and
10430 noncommercial work. They primarily involved science, but from many
10431 perspectives.  And WIPO was an ideal venue for this discussion, since
10432 WIPO is the preeminent international body dealing with intellectual
10433 property issues.
10434 </p><a class="indexterm" name="idxworldsummitontheinformationsocietywsis"></a><p>
10435 Indeed, I was once publicly scolded for not recognizing this fact
10436 about WIPO. In February 2003, I delivered a keynote address to a
10437 preparatory conference for the World Summit on the Information Society
10438 (WSIS). At a press conference before the address, I was asked what I
10439 would say. I responded that I would be talking a little about the
10440 importance of balance in intellectual property for the development of
10441 an information society. The moderator for the event then promptly
10442 interrupted to inform me and the assembled reporters that no question
10443 about intellectual property would be discussed by WSIS, since those
10444 questions were the exclusive domain of WIPO. In the talk that I had
10445 prepared, I had actually made the issue of intellectual property
10446 relatively minor. But after this astonishing statement, I made
10447 intellectual property the sole focus of my talk. There was no way to
10448 talk about an <span class="quote">«<span class="quote">Information Society</span>»</span> unless one also talked about the
10449 range of information and culture that would be free. My talk did not
10450 make my immoderate moderator very happy. And she was no doubt correct
10451 that the scope of intellectual property protections was ordinarily the
10452 stuff of
10453
10454 WIPO. But in my view, there couldn't be too much of a conversation
10455 about how much intellectual property is needed, since in my view, the
10456 very idea of balance in intellectual property had been lost.
10457 </p><p>
10458 So whether or not WSIS can discuss balance in intellectual property, I
10459 had thought it was taken for granted that WIPO could and should. And
10460 thus the meeting about <span class="quote">«<span class="quote">open and collaborative projects to create
10461 public goods</span>»</span> seemed perfectly appropriate within the WIPO agenda.
10462 </p><a class="indexterm" name="idp10290800"></a><a class="indexterm" name="idp10292192"></a><a class="indexterm" name="idp10293632"></a><a class="indexterm" name="idxfreesoftwareopensourcesoftwarefsoss"></a><a class="indexterm" name="idp10296512"></a><a class="indexterm" name="idxmicrosoftonfreesoftware"></a><p>
10463 But there is one project within that list that is highly
10464 controversial, at least among lobbyists. That project is <span class="quote">«<span class="quote">open source
10465 and free software.</span>»</span>  Microsoft in particular is wary of discussion of
10466 the subject. From its perspective, a conference to discuss open source
10467 and free software would be like a conference to discuss Apple's
10468 operating system. Both open source and free software compete with
10469 Microsoft's software. And internationally, many governments have begun
10470 to explore requirements that they use open source or free software,
10471 rather than <span class="quote">«<span class="quote">proprietary software,</span>»</span> for their own internal uses.
10472 </p><a class="indexterm" name="idp10300944"></a><a class="indexterm" name="idp10302048"></a><a class="indexterm" name="idp10302880"></a><a class="indexterm" name="idp10303696"></a><p>
10473 I don't mean to enter that debate here. It is important only to
10474 make clear that the distinction is not between commercial and
10475 noncommercial software. There are many important companies that depend
10476 fundamentally upon open source and free software, IBM being the most
10477 prominent. IBM is increasingly shifting its focus to the GNU/Linux
10478 operating system, the most famous bit of <span class="quote">«<span class="quote">free software</span>»</span>&#8212;and IBM
10479 is emphatically a commercial entity. Thus, to support <span class="quote">«<span class="quote">open source and
10480 free software</span>»</span> is not to oppose commercial entities. It is, instead,
10481 to support a mode of software development that is different from
10482 Microsoft's.<a href="#ftn.idp10306144" class="footnote" name="idp10306144"><sup class="footnote">[202]</sup></a>
10483 </p><a class="indexterm" name="idp10311872"></a><a class="indexterm" name="idp10313360"></a><a class="indexterm" name="idp10314192"></a><p>
10484 More important for our purposes, to support <span class="quote">«<span class="quote">open source and free
10485 software</span>»</span> is not to oppose copyright. <span class="quote">«<span class="quote">Open source and free software</span>»</span>
10486 is not software in the public domain. Instead, like Microsoft's
10487 software, the copyright owners of free and open source software insist
10488 quite strongly that the terms of their software license be respected
10489 by
10490
10491 adopters of free and open source software. The terms of that license
10492 are no doubt different from the terms of a proprietary software
10493 license.  Free software licensed under the General Public License
10494 (GPL), for example, requires that the source code for the software be
10495 made available by anyone who modifies and redistributes the
10496 software. But that requirement is effective only if copyright governs
10497 software. If copyright did not govern software, then free software
10498 could not impose the same kind of requirements on its adopters. It
10499 thus depends upon copyright law just as Microsoft does.
10500 </p><a class="indexterm" name="idxintellectualpropertyrightsinternationalorganizationonissuesof2"></a><a class="indexterm" name="idxworldintellectualpropertyorganizationwipo2"></a><a class="indexterm" name="idxkrimjonathan"></a><a class="indexterm" name="idp10322672"></a><p>
10501 It is therefore understandable that as a proprietary software
10502 developer, Microsoft would oppose this WIPO meeting, and
10503 understandable that it would use its lobbyists to get the United
10504 States government to oppose it, as well. And indeed, that is just what
10505 was reported to have happened. According to Jonathan Krim of the
10506 <em class="citetitle">Washington Post</em>, Microsoft's lobbyists succeeded in getting the United
10507 States government to veto the meeting.<a href="#ftn.idp10324896" class="footnote" name="idp10324896"><sup class="footnote">[203]</sup></a>
10508 And without U.S. backing, the meeting was canceled.
10509 </p><p>
10510 I don't blame Microsoft for doing what it can to advance its own
10511 interests, consistent with the law. And lobbying governments is
10512 plainly consistent with the law. There was nothing surprising about
10513 its lobbying here, and nothing terribly surprising about the most
10514 powerful software producer in the United States having succeeded in
10515 its lobbying efforts.
10516 </p><a class="indexterm" name="idp10327872"></a><a class="indexterm" name="idp10329264"></a><p>
10517 What was surprising was the United States government's reason for
10518 opposing the meeting. Again, as reported by Krim, Lois Boland, acting
10519 director of international relations for the U.S. Patent and Trademark
10520 Office, explained that <span class="quote">«<span class="quote">open-source software runs counter to the
10521 mission of WIPO, which is to promote intellectual-property rights.</span>»</span>
10522 She is quoted as saying, <span class="quote">«<span class="quote">To hold a meeting which has as its purpose
10523 to disclaim or waive such rights seems to us to be contrary to the
10524 goals of WIPO.</span>»</span>
10525 </p><a class="indexterm" name="idp10331744"></a><p>
10526 These statements are astonishing on a number of levels.
10527 </p><a class="indexterm" name="idp10333376"></a><p>
10528 First, they are just flat wrong. As I described, most open source and
10529 free software relies fundamentally upon the intellectual property
10530 right called <span class="quote">«<span class="quote">copyright</span>»</span>.  Without it, restrictions imposed by those
10531 licenses wouldn't work. Thus, to say it <span class="quote">«<span class="quote">runs counter</span>»</span> to the mission
10532 of promoting intellectual property rights reveals an extraordinary gap
10533 in understanding&#8212;the sort of mistake that is excusable in a
10534 first-year law student, but an embarrassment from a high government
10535 official dealing with intellectual property issues.
10536 </p><a class="indexterm" name="idp10336992"></a><a class="indexterm" name="idp10337696"></a><a class="indexterm" name="idp10338800"></a><a class="indexterm" name="idp10339616"></a><p>
10537 Second, who ever said that WIPO's exclusive aim was to <span class="quote">«<span class="quote">promote</span>»</span>
10538 intellectual property maximally? As I had been scolded at the
10539 preparatory conference of WSIS, WIPO is to consider not only how best
10540 to protect intellectual property, but also what the best balance of
10541 intellectual property is. As every economist and lawyer knows, the
10542 hard question in intellectual property law is to find that
10543 balance. But that there should be limits is, I had thought,
10544 uncontested. One wants to ask Ms. Boland, are generic drugs (drugs
10545 based on drugs whose patent has expired) contrary to the WIPO mission?
10546 Does the public domain weaken intellectual property? Would it have
10547 been better if the protocols of the Internet had been patented?
10548 </p><a class="indexterm" name="idp10342272"></a><p>
10549 Third, even if one believed that the purpose of WIPO was to maximize
10550 intellectual property rights, in our tradition, intellectual property
10551 rights are held by individuals and corporations. They get to decide
10552 what to do with those rights because, again, they are
10553 <span class="emphasis"><em>their</em></span> rights. If they want to <span class="quote">«<span class="quote">waive</span>»</span> or
10554 <span class="quote">«<span class="quote">disclaim</span>»</span> their rights, that is, within our tradition, totally
10555 appropriate. When Bill Gates gives away more than $20 billion to do
10556 good in the world, that is not inconsistent with the objectives of the
10557 property system. That is, on the contrary, just what a property system
10558 is supposed to be about: giving individuals the right to decide what
10559 to do with <span class="emphasis"><em>their</em></span> property.
10560 </p><a class="indexterm" name="idxboland"></a><p>
10561 When Ms. Boland says that there is something wrong with a meeting
10562 <span class="quote">«<span class="quote">which has as its purpose to disclaim or waive such rights,</span>»</span> she's
10563 saying that WIPO has an interest in interfering with the choices of
10564
10565 the individuals who own intellectual property rights. That somehow,
10566 WIPO's objective should be to stop an individual from <span class="quote">«<span class="quote">waiving</span>»</span> or
10567 <span class="quote">«<span class="quote">disclaiming</span>»</span> an intellectual property right. That the interest of
10568 WIPO is not just that intellectual property rights be maximized, but
10569 that they also should be exercised in the most extreme and restrictive
10570 way possible.
10571 </p><a class="indexterm" name="idxfeudalsystem"></a><a class="indexterm" name="idxpropertyrightsfeudalsystemof"></a><p>
10572 There is a history of just such a property system that is well known
10573 in the Anglo-American tradition. It is called <span class="quote">«<span class="quote">feudalism.</span>»</span> Under
10574 feudalism, not only was property held by a relatively small number of
10575 individuals and entities. And not only were the rights that ran with
10576 that property powerful and extensive. But the feudal system had a
10577 strong interest in assuring that property holders within that system
10578 not weaken feudalism by liberating people or property within their
10579 control to the free market. Feudalism depended upon maximum control
10580 and concentration. It fought any freedom that might interfere with
10581 that control.
10582 </p><a class="indexterm" name="idp10354752"></a><a class="indexterm" name="idp10355568"></a><p>
10583 As Peter Drahos and John Braithwaite relate, this is precisely the
10584 choice we are now making about intellectual property.<a href="#ftn.idp10356784" class="footnote" name="idp10356784"><sup class="footnote">[204]</sup></a>
10585 We will have an information society. That much is certain. Our only
10586 choice now is whether that information society will be
10587 <span class="emphasis"><em>free</em></span> or <span class="emphasis"><em>feudal</em></span>. The trend is
10588 toward the feudal.
10589 </p><a class="indexterm" name="idp10360064"></a><a class="indexterm" name="idp10361312"></a><p>
10590 When this battle broke, I blogged it. A spirited debate within the
10591 comment section ensued. Ms. Boland had a number of supporters who
10592 tried to show why her comments made sense. But there was one comment
10593 that was particularly depressing for me. An anonymous poster wrote,
10594 </p><div class="blockquote"><blockquote class="blockquote"><a class="indexterm" name="idp10363632"></a><a class="indexterm" name="idp10365072"></a><p>
10595 George, you misunderstand Lessig: He's only talking about the world as
10596 it should be (<span class="quote">«<span class="quote">the goal of WIPO, and the goal of any government,
10597 should be to promote the right balance of intellectual property rights,
10598 not simply to promote intellectual property rights</span>»</span>), not as it is. If
10599 we were talking about the world as it is, then of course Boland didn't
10600 say anything wrong. But in the world
10601
10602 as Lessig would have it, then of course she did. Always pay attention
10603 to the distinction between Lessig's world and ours.
10604 </p></blockquote></div><p>
10605 I missed the irony the first time I read it. I read it quickly and
10606 thought the poster was supporting the idea that seeking balance was
10607 what our government should be doing. (Of course, my criticism of Ms.
10608 Boland was not about whether she was seeking balance or not; my
10609 criticism was that her comments betrayed a first-year law student's
10610 mistake. I have no illusion about the extremism of our government,
10611 whether Republican or Democrat. My only illusion apparently is about
10612 whether our government should speak the truth or not.)
10613 </p><a class="indexterm" name="idp10369232"></a><p>
10614 Obviously, however, the poster was not supporting that idea.  Instead,
10615 the poster was ridiculing the very idea that in the real world, the
10616 <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
10617 intellectual property. That was obviously silly to him. And it
10618 obviously betrayed, he believed, my own silly utopianism. <span class="quote">«<span class="quote">Typical for
10619 an academic,</span>»</span> the poster might well have continued.
10620 </p><p>
10621 I understand criticism of academic utopianism. I think utopianism is
10622 silly, too, and I'd be the first to poke fun at the absurdly
10623 unrealistic ideals of academics throughout history (and not just in
10624 our own country's history).
10625 </p><p>
10626 But when it has become silly to suppose that the role of our
10627 government should be to <span class="quote">«<span class="quote">seek balance,</span>»</span> then count me with the silly,
10628 for that means that this has become quite serious indeed. If it should
10629 be obvious to everyone that the government does not seek balance, that
10630 the government is simply the tool of the most powerful lobbyists, that
10631 the idea of holding the government to a different standard is absurd,
10632 that the idea of demanding of the government that it speak truth and
10633 not lies is just naïve, then who have we, the most powerful
10634 democracy in the world, become?
10635 </p><p>
10636 It might be crazy to expect a high government official to speak
10637 the truth. It might be crazy to believe that government policy will be
10638 something more than the handmaiden of the most powerful interests.
10639
10640 It might be crazy to argue that we should preserve a tradition that has
10641 been part of our tradition for most of our history&#8212;free culture.
10642 </p><p>
10643 If this is crazy, then let there be more crazies. Soon.
10644 </p><a class="indexterm" name="idp10376384"></a><a class="indexterm" name="idp10377056"></a><a class="indexterm" name="idp10377760"></a><p>
10645 <span class="strong"><strong>There are moments</strong></span> of hope in this
10646 struggle. And moments that surprise. When the FCC was considering
10647 relaxing ownership rules, which would thereby further increase the
10648 concentration in media ownership, an extraordinary bipartisan
10649 coalition formed to fight this change. For perhaps the first time in
10650 history, interests as diverse as the NRA, the ACLU, Moveon.org,
10651 William Safire, Ted Turner, and CodePink Women for Peace organized to
10652 oppose this change in FCC policy. An astonishing 700,000 letters were
10653 sent to the FCC, demanding more hearings and a different result.
10654 </p><p>
10655 This activism did not stop the FCC, but soon after, a broad coalition
10656 in the Senate voted to reverse the FCC decision. The hostile hearings
10657 leading up to that vote revealed just how powerful this movement had
10658 become. There was no substantial support for the FCC's decision, and
10659 there was broad and sustained support for fighting further
10660 concentration in the media.
10661 </p><p>
10662 But even this movement misses an important piece of the puzzle.
10663 Largeness as such is not bad. Freedom is not threatened just because
10664 some become very rich, or because there are only a handful of big
10665 players.  The poor quality of Big Macs or Quarter Pounders does not
10666 mean that you can't get a good hamburger from somewhere else.
10667 </p><p>
10668 The danger in media concentration comes not from the concentration,
10669 but instead from the feudalism that this concentration, tied to the
10670 change in copyright, produces. It is not just that there are a few
10671 powerful companies that control an ever expanding slice of the
10672 media. It is that this concentration can call upon an equally bloated
10673 range of rights&#8212;property rights of a historically extreme
10674 form&#8212;that makes their bigness bad.
10675 </p><p>
10676 It is therefore significant that so many would rally to demand
10677 competition and increased diversity. Still, if the rally is understood
10678 as being about bigness alone, it is not terribly surprising. We
10679 Americans have a long history of fighting <span class="quote">«<span class="quote">big,</span>»</span> wisely or not. That
10680 we could be motivated to fight <span class="quote">«<span class="quote">big</span>»</span> again is not something new.
10681 </p><p>
10682 It would be something new, and something very important, if an equal
10683 number could be rallied to fight the increasing extremism built within
10684 the idea of <span class="quote">«<span class="quote">intellectual property.</span>»</span> Not because balance is alien to
10685 our tradition; indeed, as I've argued, balance is our tradition. But
10686 because the muscle to think critically about the scope of anything
10687 called <span class="quote">«<span class="quote">property</span>»</span> is not well exercised within this tradition anymore.
10688 </p><p>
10689 If we were Achilles, this would be our heel. This would be the place
10690 of our tragedy.
10691 </p><a class="indexterm" name="idp10386768"></a><p>
10692 <span class="strong"><strong>As I write</strong></span> these final words, the
10693 news is filled with stories about the RIAA lawsuits against almost
10694 three hundred individuals.<a href="#ftn.idp10388672" class="footnote" name="idp10388672"><sup class="footnote">[205]</sup></a>
10695 Eminem has just been sued for <span class="quote">«<span class="quote">sampling</span>»</span> someone else's
10696 music.<a href="#ftn.idp10395984" class="footnote" name="idp10395984"><sup class="footnote">[206]</sup></a>
10697 The story about Bob Dylan <span class="quote">«<span class="quote">stealing</span>»</span> from a Japanese author has just
10698 finished making the rounds.<a href="#ftn.idp10398608" class="footnote" name="idp10398608"><sup class="footnote">[207]</sup></a>
10699 An insider from Hollywood&#8212;who insists he must remain
10700 anonymous&#8212;reports <span class="quote">«<span class="quote">an amazing conversation with these studio
10701 guys. They've got extraordinary [old] content that they'd love to use
10702 but can't because they can't begin to clear the rights. They've got
10703 scores of kids who could do amazing things with the content, but it
10704 would take scores of lawyers to clean it first.</span>»</span> Congressmen are
10705 talking about deputizing computer viruses to bring down computers
10706 thought to violate the law. Universities are threatening expulsion for
10707 kids who use a computer to share content.
10708 </p><a class="indexterm" name="idp10402224"></a><a class="indexterm" name="idp10403008"></a><a class="indexterm" name="idp10403824"></a><a class="indexterm" name="idp10404608"></a><a class="indexterm" name="idp10405424"></a><a class="indexterm" name="idp10406240"></a><a class="indexterm" name="idp10407056"></a><p>
10709 Yet on the other side of the Atlantic, the BBC has just announced
10710 that it will build a <span class="quote">«<span class="quote">Creative Archive,</span>»</span> from which British citizens can
10711 download BBC content, and rip, mix, and burn it.<a href="#ftn.idp10408960" class="footnote" name="idp10408960"><sup class="footnote">[208]</sup></a>
10712 And in Brazil, the culture minister, Gilberto Gil, himself a folk hero
10713 of Brazilian music, has joined with Creative Commons to release
10714 content and free licenses in that Latin American
10715 country.<a href="#ftn.idp10411216" class="footnote" name="idp10411216"><sup class="footnote">[209]</sup></a>
10716
10717 I've told a dark story. The truth is more mixed. A technology has
10718 given us a new freedom. Slowly, some begin to understand that this
10719 freedom need not mean anarchy. We can carry a free culture into the
10720 twenty-first century, without artists losing and without the potential of
10721 digital technology being destroyed. It will take some thought, and
10722 more importantly, it will take some will to transform the RCAs of our
10723 day into the Causbys.
10724 </p><p>
10725 Common sense must revolt. It must act to free culture. Soon, if this
10726 potential is ever to be realized.
10727
10728
10729
10730 </p><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp10184992" class="footnote"><p><a href="#idp10184992" class="para"><sup class="para">[195] </sup></a>
10731  Commission on Intellectual Property Rights, <span class="quote">«<span class="quote">Final Report: Integrating
10732 Intellectual Property Rights and Development Policy</span>»</span> (London, 2002),
10733 available at
10734 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #55</a>. According to a World Health Organization press
10735                 release
10736 issued 9 July 2002, only 230,000 of the 6 million who need drugs in
10737 the developing world receive them&#8212;and half of them are in Brazil.
10738 </p></div><div id="ftn.idp10199568" class="footnote"><p><a href="#idp10199568" class="para"><sup class="para">[196] </sup></a>
10739
10740 See Peter Drahos with John Braithwaite, <em class="citetitle">Information Feudalism: Who
10741 Owns the Knowledge Economy?</em> (New York: The New Press, 2003), 37.
10742 <a class="indexterm" name="idp10200992"></a>
10743 <a class="indexterm" name="idp10201776"></a>
10744 </p></div><div id="ftn.idp9806816" class="footnote"><p><a href="#idp9806816" class="para"><sup class="para">[197] </sup></a>
10745
10746 International Intellectual Property Institute (IIPI), <em class="citetitle">Patent
10747 Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
10748 Africa, a Report Prepared for the World Intellectual Property
10749 Organization</em> (Washington, D.C., 2000), 14, available at
10750 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #56</a>. For a
10751 firsthand account of the struggle over South Africa, see Hearing
10752 Before the Subcommittee on Criminal Justice, Drug Policy, and Human
10753 Resources, House Committee on Government Reform, H. Rep., 1st sess.,
10754 Ser. No. 106-126 (22 July 1999), 150&#8211;57 (statement of James
10755 Love).
10756 </p></div><div id="ftn.idp10206704" class="footnote"><p><a href="#idp10206704" class="para"><sup class="para">[198] </sup></a>
10757
10758 International Intellectual Property Institute (IIPI), <em class="citetitle">Patent
10759 Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
10760 Africa, a Report Prepared for the World Intellectual Property
10761 Organization</em> (Washington, D.C., 2000), 15.  </p></div><div id="ftn.idp10214400" class="footnote"><p><a href="#idp10214400" class="para"><sup class="para">[199] </sup></a>
10762
10763 See Sabin Russell, <span class="quote">«<span class="quote">New Crusade to Lower AIDS Drug Costs: Africa's
10764 Needs at Odds with Firms' Profit Motive,</span>»</span> <em class="citetitle">San Francisco Chronicle</em>, 24
10765 May 1999, A1, available at
10766 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #57</a>
10767 (<span class="quote">«<span class="quote">compulsory licenses and gray markets pose a threat to the entire
10768 system of intellectual property protection</span>»</span>); Robert Weissman, <span class="quote">«<span class="quote">AIDS
10769 and Developing Countries: Democratizing Access to Essential
10770 Medicines,</span>»</span> <em class="citetitle">Foreign Policy in Focus</em> 4:23 (August 1999), available at
10771 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #58</a>
10772 (describing U.S. policy); John A. Harrelson, <span class="quote">«<span class="quote">TRIPS, Pharmaceutical
10773 Patents, and the HIV/AIDS Crisis: Finding the Proper Balance Between
10774 Intellectual Property Rights and Compassion, a Synopsis,</span>»</span> <em class="citetitle">Widener Law
10775 Symposium Journal</em> (Spring 2001): 175.
10776
10777 </p></div><div id="ftn.idp10270704" class="footnote"><p><a href="#idp10270704" class="para"><sup class="para">[200] </sup></a>
10778  Jonathan Krim, <span class="quote">«<span class="quote">The Quiet War over Open-Source,</span>»</span> <em class="citetitle">Washington Post</em>,
10779 August 2003, E1, available at
10780 <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
10781 Shift on `Open Source' Meeting Spurs Stir,</span>»</span> <em class="citetitle">National Journal's Technology
10782 Daily</em>, 19 August 2003, available at
10783 <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
10784 Opposes `Open Source' Talks at WIPO,</span>»</span> <em class="citetitle">National Journal's Technology
10785 Daily</em>, 19 August 2003, available at
10786 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #61</a>.
10787 </p></div><div id="ftn.idp10284240" class="footnote"><p><a href="#idp10284240" class="para"><sup class="para">[201] </sup></a>
10788  I should disclose that I was one of the people who asked WIPO for the
10789 meeting.
10790 </p></div><div id="ftn.idp10306144" class="footnote"><p><a href="#idp10306144" class="para"><sup class="para">[202] </sup></a>
10791
10792 Microsoft's position about free and open source software is more
10793 sophisticated.  As it has repeatedly asserted, it has no problem with
10794 <span class="quote">«<span class="quote">open source</span>»</span> software or software in the public domain. Microsoft's
10795 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>
10796 license, meaning a license that requires the licensee to adopt the
10797 same terms on any derivative work. See Bradford L. Smith, <span class="quote">«<span class="quote">The Future
10798 of Software: Enabling the Marketplace to Decide,</span>»</span> <em class="citetitle">Government Policy
10799 Toward Open Source Software</em> (Washington, D.C.: AEI-Brookings Joint
10800 Center for Regulatory Studies, American Enterprise Institute for
10801 Public Policy Research, 2002), 69, available at
10802 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #62</a>. See also
10803 Craig Mundie, Microsoft senior vice president, <em class="citetitle">The Commercial Software
10804 Model</em>, discussion at New York University Stern School of Business (3
10805 May 2001), available at
10806 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #63</a>.
10807 </p></div><div id="ftn.idp10324896" class="footnote"><p><a href="#idp10324896" class="para"><sup class="para">[203] </sup></a>
10808
10809 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>.
10810 </p></div><div id="ftn.idp10356784" class="footnote"><p><a href="#idp10356784" class="para"><sup class="para">[204] </sup></a>
10811
10812 See Drahos with Braithwaite, <em class="citetitle">Information Feudalism</em>, 210&#8211;20.
10813 <a class="indexterm" name="idp10206832"></a>
10814 </p></div><div id="ftn.idp10388672" class="footnote"><p><a href="#idp10388672" class="para"><sup class="para">[205] </sup></a>
10815
10816 John Borland, <span class="quote">«<span class="quote">RIAA Sues 261 File Swappers,</span>»</span> CNET News.com, September
10817 2003, available at
10818 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #65</a>; Paul
10819 R. La Monica, <span class="quote">«<span class="quote">Music Industry Sues Swappers,</span>»</span> CNN/Money, 8 September
10820 2003, available at
10821 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #66</a>; Soni
10822 Sangha and Phyllis Furman with Robert Gearty, <span class="quote">«<span class="quote">Sued for a Song,
10823 N.Y.C. 12-Yr-Old Among 261 Cited as Sharers,</span>»</span> <em class="citetitle">New York Daily News</em>, 9
10824 September 2003, 3; Frank Ahrens, <span class="quote">«<span class="quote">RIAA's Lawsuits Meet Surprised
10825 Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among
10826 Defendants,</span>»</span> <em class="citetitle">Washington Post</em>, 10 September 2003, E1; Katie Dean,
10827 <span class="quote">«<span class="quote">Schoolgirl Settles with RIAA,</span>»</span> <em class="citetitle">Wired News</em>, 10 September 2003,
10828 available at
10829 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #67</a>.
10830 </p></div><div id="ftn.idp10395984" class="footnote"><p><a href="#idp10395984" class="para"><sup class="para">[206] </sup></a>
10831
10832 Jon Wiederhorn, <span class="quote">«<span class="quote">Eminem Gets Sued &#8230; by a Little Old Lady,</span>»</span>
10833 mtv.com, 17 September 2003, available at
10834 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #68</a>.
10835 </p></div><div id="ftn.idp10398608" class="footnote"><p><a href="#idp10398608" class="para"><sup class="para">[207] </sup></a>
10836
10837 Kenji Hall, Associated Press, <span class="quote">«<span class="quote">Japanese Book May Be Inspiration for
10838 Dylan Songs,</span>»</span> Kansascity.com, 9 July 2003, available at
10839 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #69</a>.
10840
10841 </p></div><div id="ftn.idp10408960" class="footnote"><p><a href="#idp10408960" class="para"><sup class="para">[208] </sup></a>
10842  <span class="quote">«<span class="quote">BBC Plans to Open Up Its Archive to the Public,</span>»</span> BBC press release,
10843 24 August 2003, available at
10844 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #70</a>.
10845 </p></div><div id="ftn.idp10411216" class="footnote"><p><a href="#idp10411216" class="para"><sup class="para">[209] </sup></a>
10846
10847 <span class="quote">«<span class="quote">Creative Commons and Brazil,</span>»</span> Creative Commons Weblog, 6 August 2003,
10848 available at
10849 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #71</a>.
10850 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-afterword"></a>Chapter . Afterword</h1></div></div></div><p>
10851
10852
10853 <span class="strong"><strong>At least some</strong></span> who have read this
10854 far will agree with me that something must be done to change where we
10855 are heading. The balance of this book maps what might be done.
10856 </p><p>
10857 I divide this map into two parts: that which anyone can do now,
10858 and that which requires the help of lawmakers. If there is one lesson
10859 that we can draw from the history of remaking common sense, it is that
10860 it requires remaking how many people think about the very same issue.
10861 </p><p>
10862 That means this movement must begin in the streets. It must recruit a
10863 significant number of parents, teachers, librarians, creators,
10864 authors, musicians, filmmakers, scientists&#8212;all to tell this
10865 story in their own words, and to tell their neighbors why this battle
10866 is so important.
10867 </p><p>
10868 Once this movement has its effect in the streets, it has some hope of
10869 having an effect in Washington. We are still a democracy. What people
10870 think matters. Not as much as it should, at least when an RCA stands
10871 opposed, but still, it matters. And thus, in the second part below, I
10872 sketch changes that Congress could make to better secure a free culture.
10873 </p><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="usnow"></a>1. Us, now</h2></div></div></div><p>
10874 <span class="strong"><strong>Common sense</strong></span> is with the copyright
10875 warriors because the debate so far has been framed at the
10876 extremes&#8212;as a grand either/or: either property or anarchy,
10877 either total control or artists won't be paid. If that really is the
10878 choice, then the warriors should win.
10879 </p><p>
10880 The mistake here is the error of the excluded middle. There are
10881 extremes in this debate, but the extremes are not all that there
10882 is. There are those who believe in maximal copyright&#8212;<span class="quote">«<span class="quote">All Rights
10883 Reserved</span>»</span>&#8212; and those who reject copyright&#8212;<span class="quote">«<span class="quote">No Rights
10884 Reserved.</span>»</span> The <span class="quote">«<span class="quote">All Rights Reserved</span>»</span> sorts believe that you should ask
10885 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
10886 Rights Reserved</span>»</span> sorts believe you should be able to do with content
10887 as you wish, regardless of whether you have permission or not.
10888 </p><a class="indexterm" name="idxinternetdevelopmentof2"></a><a class="indexterm" name="idxinternetinitialfreecharacterof"></a><p>
10889 When the Internet was first born, its initial architecture effectively
10890 tilted in the <span class="quote">«<span class="quote">no rights reserved</span>»</span> direction. Content could be copied
10891 perfectly and cheaply; rights could not easily be controlled. Thus,
10892 regardless of anyone's desire, the effective regime of copyright under
10893 the
10894
10895
10896 original design of the Internet was <span class="quote">«<span class="quote">no rights reserved.</span>»</span> Content was
10897 <span class="quote">«<span class="quote">taken</span>»</span> regardless of the rights. Any rights were effectively
10898 unprotected.
10899 </p><p>
10900 This initial character produced a reaction (opposite, but not quite
10901 equal) by copyright owners. That reaction has been the topic of this
10902 book. Through legislation, litigation, and changes to the network's
10903 design, copyright holders have been able to change the essential
10904 character of the environment of the original Internet. If the original
10905 architecture made the effective default <span class="quote">«<span class="quote">no rights reserved,</span>»</span> the
10906 future architecture will make the effective default <span class="quote">«<span class="quote">all rights
10907 reserved.</span>»</span> The architecture and law that surround the Internet's
10908 design will increasingly produce an environment where all use of
10909 content requires permission.  The <span class="quote">«<span class="quote">cut and paste</span>»</span> world that defines
10910 the Internet today will become a <span class="quote">«<span class="quote">get permission to cut and paste</span>»</span>
10911 world that is a creator's nightmare.
10912 </p><a class="indexterm" name="idp10434768"></a><a class="indexterm" name="idp10436160"></a><p>
10913 What's needed is a way to say something in the middle&#8212;neither
10914 <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
10915 reserved</span>»</span>&#8212; and thus a way to respect copyrights but enable
10916 creators to free content as they see fit. In other words, we need a
10917 way to restore a set of freedoms that we could just take for granted
10918 before.
10919 </p><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="examples"></a>1.1. Rebuilding Freedoms Previously Presumed: Examples</h3></div></div></div><a class="indexterm" name="idxfreeculturerestorationeffortsonpreviousaspectsof"></a><a class="indexterm" name="idxbrowsing"></a><a class="indexterm" name="idxprivacyrights2"></a><p>
10920 If you step back from the battle I've been describing here, you will
10921 recognize this problem from other contexts. Think about
10922 privacy. Before the Internet, most of us didn't have to worry much
10923 about data about our lives that we broadcast to the world. If you
10924 walked into a bookstore and browsed through some of the works of Karl
10925 Marx, you didn't need to worry about explaining your browsing habits
10926 to your neighbors or boss. The <span class="quote">«<span class="quote">privacy</span>»</span> of your browsing habits was
10927 assured.
10928 </p><p>
10929 What made it assured?
10930 </p><p>
10931 Well, if we think in terms of the modalities I described in chapter
10932 <a class="xref" href="#property-i" title="Chapter 10. Chapter Ten: «Property»">10</a>, your
10933 privacy was assured because of an inefficient architecture for
10934 gathering data and hence a market constraint (cost) on anyone who
10935 wanted to gather that data. If you were a suspected spy for North
10936 Korea, working for the CIA, no doubt your privacy would not be
10937 assured.  But that's because the CIA would (we hope) find it valuable
10938 enough to spend the thousands required to track you. But for most of
10939 us (again, we can hope), spying doesn't pay. The highly inefficient
10940 architecture of real space means we all enjoy a fairly robust amount
10941 of privacy. That privacy is guaranteed to us by friction. Not by law
10942 (there is no law protecting <span class="quote">«<span class="quote">privacy</span>»</span> in public places), and in many
10943 places, not by norms (snooping and gossip are just fun), but instead,
10944 by the costs that friction imposes on anyone who would want to spy.
10945 </p><a class="indexterm" name="idxamazon"></a><a class="indexterm" name="idp10451888"></a><a class="indexterm" name="idxinternetprivacyprotectionon"></a><p>
10946 Enter the Internet, where the cost of tracking browsing in particular
10947 has become quite tiny. If you're a customer at Amazon, then as you
10948 browse the pages, Amazon collects the data about what you've looked
10949 at. You know this because at the side of the page, there's a list of
10950 <span class="quote">«<span class="quote">recently viewed</span>»</span> pages. Now, because of the architecture of the Net
10951 and the function of cookies on the Net, it is easier to collect the
10952 data than not. The friction has disappeared, and hence any <span class="quote">«<span class="quote">privacy</span>»</span>
10953 protected by the friction disappears, too.
10954 </p><a class="indexterm" name="idp10456288"></a><p>
10955 Amazon, of course, is not the problem. But we might begin to worry
10956 about libraries. If you're one of those crazy lefties who thinks that
10957 people should have the <span class="quote">«<span class="quote">right</span>»</span> to browse in a library without the
10958 government knowing which books you look at (I'm one of those lefties,
10959 too), then this change in the technology of monitoring might concern
10960 you. If it becomes simple to gather and sort who does what in
10961 electronic spaces, then the friction-induced privacy of yesterday
10962 disappears.
10963 </p><a class="indexterm" name="idp10458672"></a><a class="indexterm" name="idp10459984"></a><p>
10964 It is this reality that explains the push of many to define <span class="quote">«<span class="quote">privacy</span>»</span>
10965 on the Internet. It is the recognition that technology can remove what
10966 friction before gave us that leads many to push for laws to do what
10967 friction did.<a href="#ftn.idp10462224" class="footnote" name="idp10462224"><sup class="footnote">[210]</sup></a>
10968 And whether you're in favor of those laws or not, it is the pattern
10969 that is important here. We must take affirmative steps to secure a
10970
10971
10972 kind of freedom that was passively provided before. A change in
10973 technology now forces those who believe in privacy to affirmatively
10974 act where, before, privacy was given by default.
10975 </p><a class="indexterm" name="idp10466240"></a><a class="indexterm" name="idp10467456"></a><a class="indexterm" name="idp10468848"></a><a class="indexterm" name="idp10469664"></a><a class="indexterm" name="idxfreesoftwareopensourcesoftwarefsoss2"></a><p>
10976 A similar story could be told about the birth of the free software
10977 movement. When computers with software were first made available
10978 commercially, the software&#8212;both the source code and the
10979 binaries&#8212; was free. You couldn't run a program written for a
10980 Data General machine on an IBM machine, so Data General and IBM didn't
10981 care much about controlling their software.
10982 </p><a class="indexterm" name="idxstallmanrichard"></a><p>
10983 That was the world Richard Stallman was born into, and while he was a
10984 researcher at MIT, he grew to love the community that developed when
10985 one was free to explore and tinker with the software that ran on
10986 machines. Being a smart sort himself, and a talented programmer,
10987 Stallman grew to depend upon the freedom to add to or modify other
10988 people's work.
10989 </p><p>
10990 In an academic setting, at least, that's not a terribly radical
10991 idea. In a math department, anyone would be free to tinker with a
10992 proof that someone offered. If you thought you had a better way to
10993 prove a theorem, you could take what someone else did and change
10994 it. In a classics department, if you believed a colleague's
10995 translation of a recently discovered text was flawed, you were free to
10996 improve it. Thus, to Stallman, it seemed obvious that you should be
10997 free to tinker with and improve the code that ran a machine. This,
10998 too, was knowledge. Why shouldn't it be open for criticism like
10999 anything else?
11000 </p><a class="indexterm" name="idxproprietarycode"></a><p>
11001 No one answered that question. Instead, the architecture of revenue
11002 for computing changed. As it became possible to import programs from
11003 one system to another, it became economically attractive (at least in
11004 the view of some) to hide the code of your program. So, too, as
11005 companies started selling peripherals for mainframe systems. If I
11006 could just take your printer driver and copy it, then that would make
11007 it easier for me to sell a printer to the market than it was for you.
11008 </p><p>
11009 Thus, the practice of proprietary code began to spread, and by the
11010 early 1980s, Stallman found himself surrounded by proprietary code.
11011
11012 The world of free software had been erased by a change in the
11013 economics of computing. And as he believed, if he did nothing about
11014 it, then the freedom to change and share software would be
11015 fundamentally weakened.
11016 </p><a class="indexterm" name="idp10479664"></a><a class="indexterm" name="idp10480896"></a><p>
11017 Therefore, in 1984, Stallman began a project to build a free operating
11018 system, so that at least a strain of free software would survive. That
11019 was the birth of the GNU project, into which Linus Torvalds's <span class="quote">«<span class="quote">Linux</span>»</span>
11020 kernel was added to produce the GNU/Linux operating system.
11021 <a class="indexterm" name="idp10482688"></a>
11022 <a class="indexterm" name="idp10483520"></a>
11023 </p><p>
11024 Stallman's technique was to use copyright law to build a world of
11025 software that must be kept free. Software licensed under the Free
11026 Software Foundation's GPL cannot be modified and distributed unless
11027 the source code for that software is made available as well. Thus,
11028 anyone building upon GPL'd software would have to make their buildings
11029 free as well. This would assure, Stallman believed, that an ecology of
11030 code would develop that remained free for others to build upon. His
11031 fundamental goal was freedom; innovative creative code was a
11032 byproduct.
11033 </p><p>
11034 Stallman was thus doing for software what privacy advocates now
11035 do for privacy. He was seeking a way to rebuild a kind of freedom that
11036 was taken for granted before. Through the affirmative use of licenses
11037 that bind copyrighted code, Stallman was affirmatively reclaiming a
11038 space where free software would survive. He was actively protecting
11039 what before had been passively guaranteed.
11040 </p><a class="indexterm" name="idp10486192"></a><a class="indexterm" name="idp10487584"></a><a class="indexterm" name="idxacademicjournals"></a><a class="indexterm" name="idxscientificjournals"></a><p>
11041 Finally, consider a very recent example that more directly resonates
11042 with the story of this book. This is the shift in the way academic and
11043 scientific journals are produced.
11044 </p><a class="indexterm" name="idxlexisandwestlaw"></a><a class="indexterm" name="idxlawdatabasesofcasereportsin"></a><a class="indexterm" name="idp10495936"></a><a class="indexterm" name="idp10497040"></a><p>
11045 As digital technologies develop, it is becoming obvious to many that
11046 printing thousands of copies of journals every month and sending them
11047 to libraries is perhaps not the most efficient way to distribute
11048 knowledge. Instead, journals are increasingly becoming electronic, and
11049 libraries and their users are given access to these electronic
11050 journals through password-protected sites. Something similar to this
11051 has been happening in law for almost thirty years: Lexis and Westlaw
11052 have had electronic versions of case reports available to subscribers
11053 to their service.  Although a Supreme Court opinion is not
11054 copyrighted, and anyone is free to go to a library and read it, Lexis
11055 and Westlaw are also free
11056
11057 to charge users for the privilege of gaining access to that Supreme
11058 Court opinion through their respective services.
11059 </p><a class="indexterm" name="idp10499696"></a><a class="indexterm" name="idxpublicdomainlicensesystemforrebuildingof"></a><p>
11060 There's nothing wrong in general with this, and indeed, the ability to
11061 charge for access to even public domain materials is a good incentive
11062 for people to develop new and innovative ways to spread knowledge.
11063 The law has agreed, which is why Lexis and Westlaw have been allowed
11064 to flourish. And if there's nothing wrong with selling the public
11065 domain, then there could be nothing wrong, in principle, with selling
11066 access to material that is not in the public domain.
11067 </p><a class="indexterm" name="idp10503648"></a><a class="indexterm" name="idp10504896"></a><p>
11068 But what if the only way to get access to social and scientific data
11069 was through proprietary services? What if no one had the ability to
11070 browse this data except by paying for a subscription?
11071 </p><a class="indexterm" name="idxlibrariesjournalsin"></a><p>
11072 As many are beginning to notice, this is increasingly the reality with
11073 scientific journals. When these journals were distributed in paper
11074 form, libraries could make the journals available to anyone who had
11075 access to the library. Thus, patients with cancer could become cancer
11076 experts because the library gave them access. Or patients trying to
11077 understand the risks of a certain treatment could research those risks
11078 by reading all available articles about that treatment. This freedom
11079 was therefore a function of the institution of libraries (norms) and
11080 the technology of paper journals (architecture)&#8212;namely, that it
11081 was very hard to control access to a paper journal.
11082 </p><p>
11083 As journals become electronic, however, the publishers are demanding
11084 that libraries not give the general public access to the
11085 journals. This means that the freedoms provided by print journals in
11086 public libraries begin to disappear. Thus, as with privacy and with
11087 software, a changing technology and market shrink a freedom taken for
11088 granted before.
11089 </p><a class="indexterm" name="idp10510480"></a><a class="indexterm" name="idp10511280"></a><p>
11090 This shrinking freedom has led many to take affirmative steps to
11091 restore the freedom that has been lost. The Public Library of Science
11092 (PLoS), for example, is a nonprofit corporation dedicated to making
11093 scientific research available to anyone with a Web connection. Authors
11094
11095 of scientific work submit that work to the Public Library of Science.
11096 That work is then subject to peer review. If accepted, the work is
11097 then deposited in a public, electronic archive and made permanently
11098 available for free. PLoS also sells a print version of its work, but
11099 the copyright for the print journal does not inhibit the right of
11100 anyone to redistribute the work for free.
11101 </p><a class="indexterm" name="idp10513504"></a><p>
11102 This is one of many such efforts to restore a freedom taken for
11103 granted before, but now threatened by changing technology and markets.
11104 There's no doubt that this alternative competes with the traditional
11105 publishers and their efforts to make money from the exclusive
11106 distribution of content. But competition in our tradition is
11107 presumptively a good&#8212;especially when it helps spread knowledge
11108 and science.
11109 </p><a class="indexterm" name="idp10515040"></a><a class="indexterm" name="idp10516960"></a><a class="indexterm" name="idp10518208"></a></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="oneidea"></a>1.2. Rebuilding Free Culture: One Idea</h3></div></div></div><a class="indexterm" name="idxcreativecommons"></a><p>
11110 The same strategy could be applied to culture, as a response to the
11111 increasing control effected through law and technology.
11112 </p><a class="indexterm" name="idp10522912"></a><p>
11113 Enter the Creative Commons. The Creative Commons is a nonprofit
11114 corporation established in Massachusetts, but with its home at
11115 Stanford University. Its aim is to build a layer of
11116 <span class="emphasis"><em>reasonable</em></span> copyright on top of the extremes that
11117 now reign. It does this by making it easy for people to build upon
11118 other people's work, by making it simple for creators to express the
11119 freedom for others to take and build upon their work. Simple tags,
11120 tied to human-readable descriptions, tied to bulletproof licenses,
11121 make this possible.
11122 </p><p>
11123 <span class="emphasis"><em>Simple</em></span>&#8212;which means without a middleman, or
11124 without a lawyer.  By developing a free set of licenses that people
11125 can attach to their content, Creative Commons aims to mark a range of
11126 content that can easily, and reliably, be built upon. These tags are
11127 then linked to machine-readable versions of the license that enable
11128 computers automatically to identify content that can easily be
11129 shared. These three expressions together&#8212;a legal license, a
11130 human-readable description, and
11131
11132 machine-readable tags&#8212;constitute a Creative Commons license. A
11133 Creative Commons license constitutes a grant of freedom to anyone who
11134 accesses the license, and more importantly, an expression of the ideal
11135 that the person associated with the license believes in something
11136 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
11137 CC mark, which does not mean that copyright is waived, but that
11138 certain freedoms are given.
11139 </p><p>
11140 These freedoms are beyond the freedoms promised by fair use. Their
11141 precise contours depend upon the choices the creator makes. The
11142 creator can choose a license that permits any use, so long as
11143 attribution is given. She can choose a license that permits only
11144 noncommercial use.  She can choose a license that permits any use so
11145 long as the same freedoms are given to other uses (<span class="quote">«<span class="quote">share and share
11146 alike</span>»</span>). Or any use so long as no derivative use is made. Or any use
11147 at all within developing nations. Or any sampling use, so long as full
11148 copies are not made. Or lastly, any educational use.
11149 </p><p>
11150 These choices thus establish a range of freedoms beyond the default of
11151 copyright law. They also enable freedoms that go beyond traditional
11152 fair use. And most importantly, they express these freedoms in a way
11153 that subsequent users can use and rely upon without the need to hire a
11154 lawyer. Creative Commons thus aims to build a layer of content,
11155 governed by a layer of reasonable copyright law, that others can build
11156 upon. Voluntary choice of individuals and creators will make this
11157 content available. And that content will in turn enable us to rebuild
11158 a public domain.
11159 </p><a class="indexterm" name="idp10530368"></a><p>
11160 This is just one project among many within the Creative Commons.  And
11161 of course, Creative Commons is not the only organization pursuing such
11162 freedoms. But the point that distinguishes the Creative Commons from
11163 many is that we are not interested only in talking about a public
11164 domain or in getting legislators to help build a public domain. Our
11165 aim is to build a movement of consumers and producers
11166
11167 of content (<span class="quote">«<span class="quote">content conducers,</span>»</span> as attorney Mia Garlick calls them)
11168 who help build the public domain and, by their work, demonstrate the
11169 importance of the public domain to other creativity.
11170 </p><a class="indexterm" name="idp10532896"></a><p>
11171 The aim is not to fight the <span class="quote">«<span class="quote">All Rights Reserved</span>»</span> sorts. The aim is to
11172 complement them. The problems that the law creates for us as a culture
11173 are produced by insane and unintended consequences of laws written
11174 centuries ago, applied to a technology that only Jefferson could have
11175 imagined. The rules may well have made sense against a background of
11176 technologies from centuries ago, but they do not make sense against
11177 the background of digital technologies. New rules&#8212;with different
11178 freedoms, expressed in ways so that humans without lawyers can use
11179 them&#8212;are needed. Creative Commons gives people a way effectively
11180 to begin to build those rules.
11181 </p><a class="indexterm" name="idxbooksfreeonline2"></a><p>
11182 Why would creators participate in giving up total control? Some
11183 participate to better spread their content. Cory Doctorow, for
11184 example, is a science fiction author. His first novel, <em class="citetitle">Down and Out in
11185 the Magic Kingdom</em>, was released on-line and for free, under a Creative
11186 Commons license, on the same day that it went on sale in bookstores.
11187 </p><p>
11188 Why would a publisher ever agree to this? I suspect his publisher
11189 reasoned like this: There are two groups of people out there: (1)
11190 those who will buy Cory's book whether or not it's on the Internet,
11191 and (2) those who may never hear of Cory's book, if it isn't made
11192 available for free on the Internet. Some part of (1) will download
11193 Cory's book instead of buying it. Call them bad-(1)s. Some part of (2)
11194 will download Cory's book, like it, and then decide to buy it. Call
11195 them (2)-goods.  If there are more (2)-goods than bad-(1)s, the
11196 strategy of releasing Cory's book free on-line will probably
11197 <span class="emphasis"><em>increase</em></span> sales of Cory's book.
11198 </p><p>
11199 Indeed, the experience of his publisher clearly supports that
11200 conclusion.  The book's first printing was exhausted months before the
11201 publisher had expected. This first novel of a science fiction author
11202 was a total success.
11203 </p><a class="indexterm" name="idp10540208"></a><a class="indexterm" name="idp10541024"></a><p>
11204 The idea that free content might increase the value of nonfree content
11205 was confirmed by the experience of another author. Peter Wayner,
11206
11207 who wrote a book about the free software movement titled <em class="citetitle">Free for All</em>,
11208 made an electronic version of his book free on-line under a Creative
11209 Commons license after the book went out of print. He then monitored
11210 used book store prices for the book. As predicted, as the number of
11211 downloads increased, the used book price for his book increased, as
11212 well.
11213 </p><a class="indexterm" name="idp10543472"></a><a class="indexterm" name="idp10544784"></a><a class="indexterm" name="idp10545600"></a><a class="indexterm" name="idp10546416"></a><p>
11214 These are examples of using the Commons to better spread proprietary
11215 content. I believe that is a wonderful and common use of the
11216 Commons. There are others who use Creative Commons licenses for other
11217 reasons. Many who use the <span class="quote">«<span class="quote">sampling license</span>»</span> do so because anything
11218 else would be hypocritical. The sampling license says that others are
11219 free, for commercial or noncommercial purposes, to sample content from
11220 the licensed work; they are just not free to make full copies of the
11221 licensed work available to others. This is consistent with their own
11222 art&#8212;they, too, sample from others. Because the
11223 <span class="emphasis"><em>legal</em></span> costs of sampling are so high (Walter
11224 Leaphart, manager of the rap group Public Enemy, which was born
11225 sampling the music of others, has stated that he does not <span class="quote">«<span class="quote">allow</span>»</span>
11226 Public Enemy to sample anymore, because the legal costs are so
11227 high<a href="#ftn.idp10549632" class="footnote" name="idp10549632"><sup class="footnote">[211]</sup></a>),
11228 these artists release into the creative environment content
11229 that others can build upon, so that their form of creativity might grow.
11230 </p><p>
11231 Finally, there are many who mark their content with a Creative Commons
11232 license just because they want to express to others the importance of
11233 balance in this debate. If you just go along with the system as it is,
11234 you are effectively saying you believe in the <span class="quote">«<span class="quote">All Rights Reserved</span>»</span>
11235 model. Good for you, but many do not. Many believe that however
11236 appropriate that rule is for Hollywood and freaks, it is not an
11237 appropriate description of how most creators view the rights
11238 associated with their content. The Creative Commons license expresses
11239 this notion of <span class="quote">«<span class="quote">Some Rights Reserved,</span>»</span> and gives many the chance to
11240 say it to others.
11241 </p><p>
11242 In the first six months of the Creative Commons experiment, over
11243 1 million objects were licensed with these free-culture licenses. The next
11244 step is partnerships with middleware content providers to help them
11245 build into their technologies simple ways for users to mark their content
11246
11247
11248 with Creative Commons freedoms. Then the next step is to watch and
11249 celebrate creators who build content based upon content set free.
11250 </p><p>
11251 These are first steps to rebuilding a public domain. They are not
11252 mere arguments; they are action. Building a public domain is the first
11253 step to showing people how important that domain is to creativity and
11254 innovation. Creative Commons relies upon voluntary steps to achieve
11255 this rebuilding. They will lead to a world in which more than voluntary
11256 steps are possible.
11257 </p><p>
11258 Creative Commons is just one example of voluntary efforts by
11259 individuals and creators to change the mix of rights that now govern
11260 the creative field. The project does not compete with copyright; it
11261 complements it. Its aim is not to defeat the rights of authors, but to
11262 make it easier for authors and creators to exercise their rights more
11263 flexibly and cheaply. That difference, we believe, will enable
11264 creativity to spread more easily.
11265 </p><a class="indexterm" name="idp10556608"></a><a class="indexterm" name="idp10558016"></a></div></div><div class="section"><div class="titlepage"><div><div><h2 class="title" style="clear: both"><a name="themsoon"></a>2. Them, soon</h2></div></div></div><p>
11266 <span class="strong"><strong>We will</strong></span> not reclaim a free culture
11267 by individual action alone. It will also take important reforms of
11268 laws. We have a long way to go before the politicians will listen to
11269 these ideas and implement these reforms.  But that also means that we
11270 have time to build awareness around the changes that we need.
11271 </p><p>
11272 In this chapter, I outline five kinds of changes: four that are general,
11273 and one that's specific to the most heated battle of the day, music. Each
11274 is a step, not an end. But any of these steps would carry us a long way
11275 to our end.
11276 </p><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="formalities"></a>2.1. 1. More Formalities</h3></div></div></div><p>
11277 If you buy a house, you have to record the sale in a deed. If you buy land
11278 upon which to build a house, you have to record the purchase in a deed.
11279 If you buy a car, you get a bill of sale and register the car. If you buy an
11280 airplane ticket, it has your name on it.
11281 </p><p>
11282
11283 These are all formalities associated with property. They are
11284 requirements that we all must bear if we want our property to be
11285 protected.
11286 </p><p>
11287 In contrast, under current copyright law, you automatically get a
11288 copyright, regardless of whether you comply with any formality. You
11289 don't have to register. You don't even have to mark your content. The
11290 default is control, and <span class="quote">«<span class="quote">formalities</span>»</span> are banished.
11291 </p><p>
11292 Why?
11293 </p><p>
11294 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
11295 good one. In the world before digital technologies, formalities
11296 imposed a burden on copyright holders without much benefit. Thus, it
11297 was progress when the law relaxed the formal requirements that a
11298 copyright owner must bear to protect and secure his work. Those
11299 formalities were getting in the way.
11300 </p><p>
11301 But the Internet changes all this. Formalities today need not be a
11302 burden. Rather, the world without formalities is the world that
11303 burdens creativity. Today, there is no simple way to know who owns
11304 what, or with whom one must deal in order to use or build upon the
11305 creative work of others. There are no records, there is no system to
11306 trace&#8212; there is no simple way to know how to get permission. Yet
11307 given the massive increase in the scope of copyright's rule, getting
11308 permission is a necessary step for any work that builds upon our
11309 past. And thus, the <span class="emphasis"><em>lack</em></span> of formalities forces
11310 many into silence where they otherwise could speak.
11311 </p><p>
11312 The law should therefore change this requirement<a href="#ftn.idp10570592" class="footnote" name="idp10570592"><sup class="footnote">[212]</sup></a>&#8212;but it
11313 should not change it by going back to the old, broken system. We
11314 should require formalities, but we should establish a system that will
11315 create the incentives to minimize the burden of these formalities.
11316 </p><p>
11317 The important formalities are three: marking copyrighted work,
11318 registering copyrights, and renewing the claim to
11319 copyright. Traditionally, the first of these three was something the
11320 copyright owner did; the second two were something the government
11321 did. But a revised system of formalities would banish the government
11322 from the process, except for the sole purpose of approving standards
11323 developed by others.
11324 </p><div class="section"><div class="titlepage"><div><div><h4 class="title"><a name="registration"></a>2.1.1. Registration and renewal</h4></div></div></div><p>
11325 Under the old system, a copyright owner had to file a registration
11326 with the Copyright Office to register or renew a copyright. When
11327 filing that registration, the copyright owner paid a fee. As with most
11328 government agencies, the Copyright Office had little incentive to
11329 minimize the burden of registration; it also had little incentive to
11330 minimize the fee.  And as the Copyright Office is not a main target of
11331 government policymaking, the office has historically been terribly
11332 underfunded. Thus, when people who know something about the process
11333 hear this idea about formalities, their first reaction is
11334 panic&#8212;nothing could be worse than forcing people to deal with
11335 the mess that is the Copyright Office.
11336 </p><p>
11337 Yet it is always astonishing to me that we, who come from a tradition
11338 of extraordinary innovation in governmental design, can no longer
11339 think innovatively about how governmental functions can be designed.
11340 Just because there is a public purpose to a government role, it
11341 doesn't follow that the government must actually administer the
11342 role. Instead, we should be creating incentives for private parties to
11343 serve the public, subject to standards that the government sets.
11344 </p><p>
11345 In the context of registration, one obvious model is the Internet.
11346 There are at least 32 million Web sites registered around the world.
11347 Domain name owners for these Web sites have to pay a fee to keep their
11348 registration alive. In the main top-level domains (.com, .org, .net),
11349 there is a central registry. The actual registrations are, however,
11350 performed by many competing registrars. That competition drives the
11351 cost of registering down, and more importantly, it drives the ease
11352 with which registration occurs up.
11353 </p><p>
11354 We should adopt a similar model for the registration and renewal of
11355 copyrights. The Copyright Office may well serve as the central
11356 registry, but it should not be in the registrar business. Instead, it
11357 should establish a database, and a set of standards for registrars. It
11358 should approve registrars that meet its standards. Those registrars
11359 would then compete with one another to deliver the cheapest and
11360 simplest systems for registering and renewing copyrights. That
11361 competition would substantially lower the burden of this
11362 formality&#8212;while producing a database
11363
11364 of registrations that would facilitate the licensing of content.
11365 </p></div><div class="section"><div class="titlepage"><div><div><h4 class="title"><a name="marking"></a>2.1.2. Marking</h4></div></div></div><p>
11366 It used to be that the failure to include a copyright notice on a
11367 creative work meant that the copyright was forfeited. That was a harsh
11368 punishment for failing to comply with a regulatory rule&#8212;akin to
11369 imposing the death penalty for a parking ticket in the world of
11370 creative rights.  Here again, there is no reason that a marking
11371 requirement needs to be enforced in this way. And more importantly,
11372 there is no reason a marking requirement needs to be enforced
11373 uniformly across all media.
11374 </p><p>
11375 The aim of marking is to signal to the public that this work is
11376 copyrighted and that the author wants to enforce his rights. The mark
11377 also makes it easy to locate a copyright owner to secure permission to
11378 use the work.
11379 </p><p>
11380 One of the problems the copyright system confronted early on was
11381 that different copyrighted works had to be differently marked. It wasn't
11382 clear how or where a statue was to be marked, or a record, or a film. A
11383 new marking requirement could solve these problems by recognizing
11384 the differences in media, and by allowing the system of marking to
11385 evolve as technologies enable it to. The system could enable a special
11386 signal from the failure to mark&#8212;not the loss of the copyright, but the
11387 loss of the right to punish someone for failing to get permission first.
11388 </p><p>
11389 Let's start with the last point. If a copyright owner allows his work
11390 to be published without a copyright notice, the consequence of that
11391 failure need not be that the copyright is lost. The consequence could
11392 instead be that anyone has the right to use this work, until the
11393 copyright owner complains and demonstrates that it is his work and he
11394 doesn't give permission.<a href="#ftn.idp10581856" class="footnote" name="idp10581856"><sup class="footnote">[213]</sup></a>
11395 The meaning of an unmarked work would therefore be <span class="quote">«<span class="quote">use unless someone
11396 complains.</span>»</span> If someone does complain, then the obligation would be to
11397 stop using the work in any new
11398
11399 work from then on though no penalty would attach for existing uses.
11400 This would create a strong incentive for copyright owners to mark
11401 their work.
11402 </p><p>
11403 That in turn raises the question about how work should best be
11404 marked. Here again, the system needs to adjust as the technologies
11405 evolve. The best way to ensure that the system evolves is to limit the
11406 Copyright Office's role to that of approving standards for marking
11407 content that have been crafted elsewhere.
11408 </p><a class="indexterm" name="idp10585840"></a><p>
11409 For example, if a recording industry association devises a method for
11410 marking CDs, it would propose that to the Copyright Office. The
11411 Copyright Office would hold a hearing, at which other proposals could
11412 be made. The Copyright Office would then select the proposal that it
11413 judged preferable, and it would base that choice
11414 <span class="emphasis"><em>solely</em></span> upon the consideration of which method
11415 could best be integrated into the registration and renewal system. We
11416 would not count on the government to innovate; but we would count on
11417 the government to keep the product of innovation in line with its
11418 other important functions.
11419 </p><p>
11420 Finally, marking content clearly would simplify registration
11421 requirements.  If photographs were marked by author and year, there
11422 would be little reason not to allow a photographer to reregister, for
11423 example, all photographs taken in a particular year in one quick
11424 step. The aim of the formality is not to burden the creator; the
11425 system itself should be kept as simple as possible.
11426 </p><p>
11427 The objective of formalities is to make things clear. The existing
11428 system does nothing to make things clear. Indeed, it seems designed to
11429 make things unclear.
11430 </p><p>
11431 If formalities such as registration were reinstated, one of the most
11432 difficult aspects of relying upon the public domain would be removed.
11433 It would be simple to identify what content is presumptively free; it
11434 would be simple to identify who controls the rights for a particular
11435 kind of content; it would be simple to assert those rights, and to renew
11436 that assertion at the appropriate time.
11437 </p></div></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="shortterms"></a>2.2. 2. Shorter Terms</h3></div></div></div><p>
11438 The term of copyright has gone from fourteen years to ninety-five
11439 years for corporate authors, and life of the author plus seventy years for
11440 natural authors.
11441 </p><p>
11442 In <em class="citetitle">The Future of Ideas</em>, I proposed a seventy-five-year term,
11443 granted in five-year increments with a requirement of renewal every
11444 five years.  That seemed radical enough at the time. But after we lost
11445 <em class="citetitle">Eldred</em> v. <em class="citetitle">Ashcroft</em>, the proposals became even more
11446 radical. <em class="citetitle">The Economist</em> endorsed a proposal for a fourteen-year
11447 copyright term.<a href="#ftn.idp10595008" class="footnote" name="idp10595008"><sup class="footnote">[214]</sup></a>
11448 Others have proposed tying the term to the term for patents.
11449 </p><p>
11450 I agree with those who believe that we need a radical change in
11451 copyright's term. But whether fourteen years or seventy-five, there
11452 are four principles that are important to keep in mind about copyright
11453 terms.
11454 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><p>
11455
11456 <span class="emphasis"><em>Keep it short:</em></span> The term should be as long as
11457 necessary to give incentives to create, but no longer. If it were tied
11458 to very strong protections for authors (so authors were able to
11459 reclaim rights from publishers), rights to the same work (not
11460 derivative works) might be extended further. The key is not to tie the
11461 work up with legal regulations when it no longer benefits an author.
11462 </p></li><li class="listitem"><p>
11463
11464 <span class="emphasis"><em>Keep it simple:</em></span> The line between the public
11465 domain and protected content must be kept clear. Lawyers like the
11466 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
11467 <span class="quote">«<span class="quote">expression.</span>»</span>  That kind of law gives them lots of work. But our
11468 framers had a simpler idea in mind: protected versus unprotected.  The
11469 value of short terms is that there is little need to build exceptions
11470 into copyright when the term itself is kept short. A clear and active
11471 <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
11472 <span class="quote">«<span class="quote">idea/expression</span>»</span> less necessary to navigate.
11473
11474 </p></li><li class="listitem"><a class="indexterm" name="idp10605888"></a><p>
11475
11476 <span class="emphasis"><em>Keep it alive:</em></span> Copyright should have to be
11477 renewed.  Especially if the maximum term is long, the copyright owner
11478 should be required to signal periodically that he wants the protection
11479 continued. This need not be an onerous burden, but there is no reason
11480 this monopoly protection has to be granted for free. On average, it
11481 takes ninety minutes for a veteran to apply for a
11482 pension.<a href="#ftn.idp10608048" class="footnote" name="idp10608048"><sup class="footnote">[215]</sup></a>
11483 If we make veterans suffer that burden, I don't see why we couldn't
11484 require authors to spend ten minutes every fifty years to file a
11485 single form.
11486 </p></li><li class="listitem"><p>
11487
11488 <span class="emphasis"><em>Keep it prospective:</em></span> Whatever the term of
11489 copyright should be, the clearest lesson that economists teach is that
11490 a term once given should not be extended. It might have been a mistake
11491 in 1923 for the law to offer authors only a fifty-six-year term. I
11492 don't think so, but it's possible. If it was a mistake, then the
11493 consequence was that we got fewer authors to create in 1923 than we
11494 otherwise would have. But we can't correct that mistake today by
11495 increasing the term. No matter what we do today, we will not increase
11496 the number of authors who wrote in 1923. Of course, we can increase
11497 the reward that those who write now get (or alternatively, increase
11498 the copyright burden that smothers many works that are today
11499 invisible). But increasing their reward will not increase their
11500 creativity in 1923.  What's not done is not done, and there's nothing
11501 we can do about that now.  </p></li></ol></div><p>
11502 These changes together should produce an <span class="emphasis"><em>average</em></span>
11503 copyright term that is much shorter than the current term. Until 1976,
11504 the average term was just 32.2 years. We should be aiming for the
11505 same.
11506 </p><p>
11507 No doubt the extremists will call these ideas <span class="quote">«<span class="quote">radical.</span>»</span> (After all, I
11508 call them <span class="quote">«<span class="quote">extremists.</span>»</span>) But again, the term I recommended was longer
11509 than the term under Richard Nixon. How <span class="quote">«<span class="quote">radical</span>»</span> can it be to ask for
11510 a more generous copyright law than Richard Nixon presided over?
11511 </p></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="freefairuse"></a>2.3. 3. Free Use Vs. Fair Use</h3></div></div></div><a class="indexterm" name="idp10616896"></a><a class="indexterm" name="idp10617696"></a><p>
11512 As I observed at the beginning of this book, property law originally
11513 granted property owners the right to control their property from the
11514 ground to the heavens. The airplane came along. The scope of property
11515 rights quickly changed. There was no fuss, no constitutional
11516 challenge.  It made no sense anymore to grant that much control, given
11517 the emergence of that new technology.
11518 </p><p>
11519 Our Constitution gives Congress the power to give authors <span class="quote">«<span class="quote">exclusive
11520 right</span>»</span> to <span class="quote">«<span class="quote">their writings.</span>»</span> Congress has given authors an exclusive
11521 right to <span class="quote">«<span class="quote">their writings</span>»</span> plus any derivative writings (made by
11522 others) that are sufficiently close to the author's original
11523 work. Thus, if I write a book, and you base a movie on that book, I
11524 have the power to deny you the right to release that movie, even
11525 though that movie is not <span class="quote">«<span class="quote">my writing.</span>»</span>
11526 </p><a class="indexterm" name="idp10622080"></a><p>
11527 Congress granted the beginnings of this right in 1870, when it
11528 expanded the exclusive right of copyright to include a right to
11529 control translations and dramatizations of a work.<a href="#ftn.idp10623344" class="footnote" name="idp10623344"><sup class="footnote">[216]</sup></a>
11530 The courts have expanded it slowly through judicial interpretation
11531 ever since. This expansion has been commented upon by one of the law's
11532 greatest judges, Judge Benjamin Kaplan.
11533 </p><div class="blockquote"><blockquote class="blockquote"><p>
11534 So inured have we become to the extension of the monopoly to a
11535 large range of so-called derivative works, that we no longer sense
11536 the oddity of accepting such an enlargement of copyright while
11537 yet intoning the abracadabra of idea and expression.<a href="#ftn.idp10625792" class="footnote" name="idp10625792"><sup class="footnote">[217]</sup></a>
11538 </p></blockquote></div><p>
11539 I think it's time to recognize that there are airplanes in this field and
11540 the expansiveness of these rights of derivative use no longer make
11541 sense. More precisely, they don't make sense for the period of time that
11542 a copyright runs. And they don't make sense as an amorphous grant.
11543 Consider each limitation in turn.
11544 </p><p>
11545 <span class="emphasis"><em>Term:</em></span> If Congress wants to grant a derivative
11546 right, then that right should be for a much shorter term. It makes
11547 sense to protect John
11548
11549
11550 Grisham's right to sell the movie rights to his latest novel (or at least
11551 I'm willing to assume it does); but it does not make sense for that right
11552 to run for the same term as the underlying copyright. The derivative
11553 right could be important in inducing creativity; it is not important long
11554 after the creative work is done.
11555 <a class="indexterm" name="idp10629104"></a>
11556 </p><p>
11557 <span class="emphasis"><em>Scope:</em></span> Likewise should the scope of derivative
11558 rights be narrowed.  Again, there are some cases in which derivative
11559 rights are important.  Those should be specified. But the law should
11560 draw clear lines around regulated and unregulated uses of copyrighted
11561 material. When all <span class="quote">«<span class="quote">reuse</span>»</span> of creative material was within the control
11562 of businesses, perhaps it made sense to require lawyers to negotiate
11563 the lines. It no longer makes sense for lawyers to negotiate the
11564 lines. Think about all the creative possibilities that digital
11565 technologies enable; now imagine pouring molasses into the
11566 machines. That's what this general requirement of permission does to
11567 the creative process. Smothers it.
11568 </p><a class="indexterm" name="idp10632352"></a><p>
11569 This was the point that Alben made when describing the making of the
11570 Clint Eastwood CD. While it makes sense to require negotiation for
11571 foreseeable derivative rights&#8212;turning a book into a movie, or a
11572 poem into a musical score&#8212;it doesn't make sense to require
11573 negotiation for the unforeseeable. Here, a statutory right would make
11574 much more sense.
11575 </p><p>
11576 In each of these cases, the law should mark the uses that are
11577 protected, and the presumption should be that other uses are not
11578 protected.  This is the reverse of the recommendation of my colleague
11579 Paul Goldstein.<a href="#ftn.idp10634480" class="footnote" name="idp10634480"><sup class="footnote">[218]</sup></a>
11580 His view is that the law should be written so that
11581 expanded protections follow expanded uses.
11582 </p><p>
11583 Goldstein's analysis would make perfect sense if the cost of the legal
11584 system were small. But as we are currently seeing in the context of
11585 the Internet, the uncertainty about the scope of protection, and the
11586 incentives to protect existing architectures of revenue, combined with
11587 a strong copyright, weaken the process of innovation.
11588 </p><p>
11589 The law could remedy this problem either by removing protection
11590
11591 beyond the part explicitly drawn or by granting reuse rights upon
11592 certain statutory conditions. Either way, the effect would be to free
11593 a great deal of culture to others to cultivate. And under a statutory
11594 rights regime, that reuse would earn artists more income.
11595 </p></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="liberatemusic"></a>2.4. 4. Liberate the Music&#8212;Again</h3></div></div></div><p>
11596 The battle that got this whole war going was about music, so it
11597 wouldn't be fair to end this book without addressing the issue that
11598 is, to most people, most pressing&#8212;music. There is no other
11599 policy issue that better teaches the lessons of this book than the
11600 battles around the sharing of music.
11601 </p><p>
11602 The appeal of file-sharing music was the crack cocaine of the
11603 Internet's growth. It drove demand for access to the Internet more
11604 powerfully than any other single application. It was the Internet's
11605 killer app&#8212;possibly in two senses of that word. It no doubt was
11606 the application that drove demand for bandwidth. It may well be the
11607 application that drives demand for regulations that in the end kill
11608 innovation on the network.
11609 </p><p>
11610 The aim of copyright, with respect to content in general and music in
11611 particular, is to create the incentives for music to be composed,
11612 performed, and, most importantly, spread. The law does this by giving
11613 an exclusive right to a composer to control public performances of his
11614 work, and to a performing artist to control copies of her performance.
11615 </p><p>
11616 File-sharing networks complicate this model by enabling the spread of
11617 content for which the performer has not been paid. But of course,
11618 that's not all the file-sharing networks do. As I described in chapter
11619 <a class="xref" href="#piracy" title="Chapter 5. Chapter Five: «Piracy»">5</a>, they enable
11620 four different kinds of sharing:
11621 </p><div class="orderedlist"><ol class="orderedlist" type="A"><li class="listitem"><p>
11622
11623 There are some who are using sharing networks as substitutes
11624 for purchasing CDs.
11625 </p></li><li class="listitem"><p>
11626
11627 There are also some who are using sharing networks to sample,
11628 on the way to purchasing CDs.
11629 </p></li><li class="listitem"><p>
11630
11631
11632 There are many who are using file-sharing networks to get access to
11633 content that is no longer sold but is still under copyright or that
11634 would have been too cumbersome to buy off the Net.
11635 </p></li><li class="listitem"><p>
11636
11637 There are many who are using file-sharing networks to get access to
11638 content that is not copyrighted or to get access that the copyright
11639 owner plainly endorses.
11640 </p></li></ol></div><a class="indexterm" name="idp10649536"></a><a class="indexterm" name="idp10650608"></a><p>
11641 Any reform of the law needs to keep these different uses in focus. It
11642 must avoid burdening type D even if it aims to eliminate type A. The
11643 eagerness with which the law aims to eliminate type A, moreover,
11644 should depend upon the magnitude of type B. As with VCRs, if the net
11645 effect of sharing is actually not very harmful, the need for regulation is
11646 significantly weakened.
11647 </p><p>
11648 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
11649 controversial.  For the purposes of this chapter, however, I assume
11650 the harm is real. I assume, in other words, that type A sharing is
11651 significantly greater than type B, and is the dominant use of sharing
11652 networks.
11653 </p><p>
11654 Nonetheless, there is a crucial fact about the current technological
11655 context that we must keep in mind if we are to understand how the law
11656 should respond.
11657 </p><p>
11658 Today, file sharing is addictive. In ten years, it won't be. It is
11659 addictive today because it is the easiest way to gain access to a
11660 broad range of content.  It won't be the easiest way to get access to
11661 a broad range of content in ten years. Today, access to the Internet
11662 is cumbersome and slow&#8212;we in the United States are lucky to have
11663 broadband service at 1.5 MBs, and very rarely do we get service at
11664 that speed both up and down. Although wireless access is growing, most
11665 of us still get access across wires. Most only gain access through a
11666 machine with a keyboard. The idea of the always on, always connected
11667 Internet is mainly just an idea.
11668 </p><p>
11669 But it will become a reality, and that means the way we get access to
11670 the Internet today is a technology in transition. Policy makers should
11671 not make policy on the basis of technology in transition. They should
11672
11673 make policy on the basis of where the technology is going. The
11674 question should not be, how should the law regulate sharing in this
11675 world?  The question should be, what law will we require when the
11676 network becomes the network it is clearly becoming? That network is
11677 one in which every machine with electricity is essentially on the Net;
11678 where everywhere you are&#8212;except maybe the desert or the
11679 Rockies&#8212;you can instantaneously be connected to the
11680 Internet. Imagine the Internet as ubiquitous as the best cell-phone
11681 service, where with the flip of a device, you are connected.
11682 </p><a class="indexterm" name="idp10656176"></a><p>
11683 In that world, it will be extremely easy to connect to services that
11684 give you access to content on the fly&#8212;such as Internet radio,
11685 content that is streamed to the user when the user demands. Here,
11686 then, is the critical point: When it is <span class="emphasis"><em>extremely</em></span>
11687 easy to connect to services that give access to content, it will be
11688 <span class="emphasis"><em>easier</em></span> to connect to services that give you
11689 access to content than it will be to download and store content
11690 <span class="emphasis"><em>on the many devices you will have for playing
11691 content</em></span>. It will be easier, in other words, to subscribe
11692 than it will be to be a database manager, as everyone in the
11693 download-sharing world of Napster-like technologies essentially
11694 is. Content services will compete with content sharing, even if the
11695 services charge money for the content they give access to. Already
11696 cell-phone services in Japan offer music (for a fee) streamed over
11697 cell phones (enhanced with plugs for headphones). The Japanese are
11698 paying for this content even though <span class="quote">«<span class="quote">free</span>»</span> content is available in the
11699 form of MP3s across the Web.<a href="#ftn.idp10660688" class="footnote" name="idp10660688"><sup class="footnote">[219]</sup></a>
11700
11701 </p><p>
11702 This point about the future is meant to suggest a perspective on the
11703 present: It is emphatically temporary. The <span class="quote">«<span class="quote">problem</span>»</span> with file
11704 sharing&#8212;to the extent there is a real problem&#8212;is a problem
11705 that will increasingly disappear as it becomes easier to connect to
11706 the Internet.  And thus it is an extraordinary mistake for policy
11707 makers today to be <span class="quote">«<span class="quote">solving</span>»</span> this problem in light of a technology
11708 that will be gone tomorrow.  The question should not be how to
11709 regulate the Internet to eliminate file sharing (the Net will evolve
11710 that problem away). The question instead should be how to assure that
11711 artists get paid, during
11712
11713
11714 this transition between twentieth-century models for doing business
11715 and twenty-first-century technologies.
11716 </p><p>
11717 The answer begins with recognizing that there are different <span class="quote">«<span class="quote">problems</span>»</span>
11718 here to solve. Let's start with type D content&#8212;uncopyrighted
11719 content or copyrighted content that the artist wants shared. The
11720 <span class="quote">«<span class="quote">problem</span>»</span> with this content is to make sure that the technology that
11721 would enable this kind of sharing is not rendered illegal. You can
11722 think of it this way: Pay phones are used to deliver ransom demands,
11723 no doubt.  But there are many who need to use pay phones who have
11724 nothing to do with ransoms. It would be wrong to ban pay phones in
11725 order to eliminate kidnapping.
11726 </p><p>
11727 Type C content raises a different <span class="quote">«<span class="quote">problem.</span>»</span> This is content that was,
11728 at one time, published and is no longer available. It may be
11729 unavailable because the artist is no longer valuable enough for the
11730 record label he signed with to carry his work. Or it may be
11731 unavailable because the work is forgotten. Either way, the aim of the
11732 law should be to facilitate the access to this content, ideally in a
11733 way that returns something to the artist.
11734 </p><a class="indexterm" name="idp10668304"></a><a class="indexterm" name="idp10669408"></a><p>
11735 Again, the model here is the used book store. Once a book goes out of
11736 print, it may still be available in libraries and used book
11737 stores. But libraries and used book stores don't pay the copyright
11738 owner when someone reads or buys an out-of-print book. That makes
11739 total sense, of course, since any other system would be so burdensome
11740 as to eliminate the possibility of used book stores' existing. But
11741 from the author's perspective, this <span class="quote">«<span class="quote">sharing</span>»</span> of his content without
11742 his being compensated is less than ideal.
11743 </p><p>
11744 The model of used book stores suggests that the law could simply deem
11745 out-of-print music fair game. If the publisher does not make copies of
11746 the music available for sale, then commercial and noncommercial
11747 providers would be free, under this rule, to <span class="quote">«<span class="quote">share</span>»</span> that content,
11748 even though the sharing involved making a copy. The copy here would be
11749 incidental to the trade; in a context where commercial publishing has
11750 ended, trading music should be as free as trading books.
11751 </p><p>
11752
11753
11754 Alternatively, the law could create a statutory license that would
11755 ensure that artists get something from the trade of their work. For
11756 example, if the law set a low statutory rate for the commercial
11757 sharing of content that was not offered for sale by a commercial
11758 publisher, and if that rate were automatically transferred to a trust
11759 for the benefit of the artist, then businesses could develop around
11760 the idea of trading this content, and artists would benefit from this
11761 trade.
11762 </p><p>
11763 This system would also create an incentive for publishers to keep
11764 works available commercially. Works that are available commercially
11765 would not be subject to this license. Thus, publishers could protect
11766 the right to charge whatever they want for content if they kept the
11767 work commercially available. But if they don't keep it available, and
11768 instead, the computer hard disks of fans around the world keep it
11769 alive, then any royalty owed for such copying should be much less than
11770 the amount owed a commercial publisher.
11771 </p><p>
11772 The hard case is content of types A and B, and again, this case is
11773 hard only because the extent of the problem will change over time, as
11774 the technologies for gaining access to content change. The law's
11775 solution should be as flexible as the problem is, understanding that
11776 we are in the middle of a radical transformation in the technology for
11777 delivering and accessing content.
11778 </p><p>
11779 So here's a solution that will at first seem very strange to both sides
11780 in this war, but which upon reflection, I suggest, should make some sense.
11781 </p><p>
11782 Stripped of the rhetoric about the sanctity of property, the basic
11783 claim of the content industry is this: A new technology (the Internet)
11784 has harmed a set of rights that secure copyright. If those rights are to
11785 be protected, then the content industry should be compensated for that
11786 harm. Just as the technology of tobacco harmed the health of millions
11787 of Americans, or the technology of asbestos caused grave illness to
11788 thousands of miners, so, too, has the technology of digital networks
11789 harmed the interests of the content industry.
11790 </p><p>
11791
11792 I love the Internet, and so I don't like likening it to tobacco or
11793 asbestos.  But the analogy is a fair one from the perspective of the
11794 law.  And it suggests a fair response: Rather than seeking to destroy
11795 the Internet, or the p2p technologies that are currently harming
11796 content providers on the Internet, we should find a relatively simple
11797 way to compensate those who are harmed.
11798 </p><a class="indexterm" name="idxpromisestokeepfisher"></a><p>
11799 The idea would be a modification of a proposal that has been
11800 floated by Harvard law professor William Fisher.<a href="#ftn.idp10680416" class="footnote" name="idp10680416"><sup class="footnote">[220]</sup></a>
11801 Fisher suggests a very clever way around the current impasse of the
11802 Internet. Under his plan, all content capable of digital transmission
11803 would (1) be marked with a digital watermark (don't worry about how
11804 easy it is to evade these marks; as you'll see, there's no incentive
11805 to evade them). Once the content is marked, then entrepreneurs would
11806 develop (2) systems to monitor how many items of each content were
11807 distributed. On the basis of those numbers, then (3) artists would be
11808 compensated. The compensation would be paid for by (4) an appropriate
11809 tax.
11810 </p><p>
11811 Fisher's proposal is careful and comprehensive. It raises a million
11812 questions, most of which he answers well in his upcoming book,
11813 <em class="citetitle">Promises to Keep</em>. The modification that I would make is relatively
11814 simple: Fisher imagines his proposal replacing the existing copyright
11815 system.  I imagine it complementing the existing system. The aim of
11816 the proposal would be to facilitate compensation to the extent that
11817 harm could be shown. This compensation would be temporary, aimed at
11818 facilitating a transition between regimes. And it would require
11819 renewal after a period of years. If it continues to make sense to
11820 facilitate free exchange of content, supported through a taxation
11821 system, then it can be continued. If this form of protection is no
11822 longer necessary, then the system could lapse into the old system of
11823 controlling access.
11824 </p><a class="indexterm" name="idp10701424"></a><a class="indexterm" name="idp10702736"></a><p>
11825 Fisher would balk at the idea of allowing the system to lapse. His aim
11826 is not just to ensure that artists are paid, but also to ensure that
11827 the system supports the widest range of <span class="quote">«<span class="quote">semiotic democracy</span>»</span>
11828 possible. But the aims of semiotic democracy would be satisfied if the
11829 other changes I described were accomplished&#8212;in particular, the
11830 limits on derivative
11831
11832
11833 uses. A system that simply charges for access would not greatly burden
11834 semiotic democracy if there were few limitations on what one was
11835 allowed to do with the content itself.
11836 </p><a class="indexterm" name="idp10705536"></a><a class="indexterm" name="idp10706320"></a><a class="indexterm" name="idp10707136"></a><a class="indexterm" name="idp10707952"></a><p>
11837 No doubt it would be difficult to calculate the proper measure of
11838 <span class="quote">«<span class="quote">harm</span>»</span> to an industry. But the difficulty of making that calculation
11839 would be outweighed by the benefit of facilitating innovation. This
11840 background system to compensate would also not need to interfere with
11841 innovative proposals such as Apple's MusicStore. As experts predicted
11842 when Apple launched the MusicStore, it could beat <span class="quote">«<span class="quote">free</span>»</span> by being
11843 easier than free is. This has proven correct: Apple has sold millions
11844 of songs at even the very high price of 99 cents a song. (At 99 cents,
11845 the cost is the equivalent of a per-song CD price, though the labels
11846 have none of the costs of a CD to pay.) Apple's move was countered by
11847 Real Networks, offering music at just 79 cents a song. And no doubt
11848 there will be a great deal of competition to offer and sell music
11849 on-line.
11850 </p><a class="indexterm" name="idp10711536"></a><a class="indexterm" name="idp10712352"></a><a class="indexterm" name="idp10713456"></a><a class="indexterm" name="idp10714288"></a><a class="indexterm" name="idp10715392"></a><p>
11851 This competition has already occurred against the background of <span class="quote">«<span class="quote">free</span>»</span>
11852 music from p2p systems. As the sellers of cable television have known
11853 for thirty years, and the sellers of bottled water for much more than
11854 that, there is nothing impossible at all about <span class="quote">«<span class="quote">competing with free.</span>»</span>
11855 Indeed, if anything, the competition spurs the competitors to offer
11856 new and better products. This is precisely what the competitive market
11857 was to be about. Thus in Singapore, though piracy is rampant, movie
11858 theaters are often luxurious&#8212;with <span class="quote">«<span class="quote">first class</span>»</span> seats, and meals
11859 served while you watch a movie&#8212;as they struggle and succeed in
11860 finding ways to compete with <span class="quote">«<span class="quote">free.</span>»</span>
11861 </p><p>
11862 This regime of competition, with a backstop to assure that artists
11863 don't lose, would facilitate a great deal of innovation in the
11864 delivery of content. That competition would continue to shrink type A
11865 sharing. It would inspire an extraordinary range of new
11866 innovators&#8212;ones who would have a right to the content, and would
11867 no longer fear the uncertain and barbarically severe punishments of
11868 the law.
11869 </p><p>
11870 In summary, then, my proposal is this:
11871 </p><p>
11872
11873
11874 The Internet is in transition. We should not be regulating a
11875 technology in transition. We should instead be regulating to minimize
11876 the harm to interests affected by this technological change, while
11877 enabling, and encouraging, the most efficient technology we can
11878 create.
11879 </p><p>
11880 We can minimize that harm while maximizing the benefit to innovation
11881 by
11882 </p><div class="orderedlist"><ol class="orderedlist" type="1"><li class="listitem"><p>
11883
11884 guaranteeing the right to engage in type D sharing;
11885 </p></li><li class="listitem"><p>
11886
11887 permitting noncommercial type C sharing without liability,
11888 and commercial type C sharing at a low and fixed rate set by
11889 statute;
11890 </p></li><li class="listitem"><p>
11891
11892 while in this transition, taxing and compensating for type A
11893 sharing, to the extent actual harm is demonstrated.
11894 </p></li></ol></div><p>
11895 But what if <span class="quote">«<span class="quote">piracy</span>»</span> doesn't disappear? What if there is a competitive
11896 market providing content at a low cost, but a significant number of
11897 consumers continue to <span class="quote">«<span class="quote">take</span>»</span> content for nothing? Should the law do
11898 something then?
11899 </p><p>
11900 Yes, it should. But, again, what it should do depends upon how the
11901 facts develop. These changes may not eliminate type A sharing. But the
11902 real issue is not whether it eliminates sharing in the abstract.  The
11903 real issue is its effect on the market. Is it better (a) to have a
11904 technology that is 95 percent secure and produces a market of size <em class="citetitle">x</em>,
11905 or (b) to have a technology that is 50 percent secure but produces a
11906 market of five times <em class="citetitle">x</em>? Less secure might produce more unauthorized
11907 sharing, but it is likely to also produce a much bigger market in
11908 authorized sharing. The most important thing is to assure artists'
11909 compensation without breaking the Internet. Once that's assured, then
11910 it may well be appropriate to find ways to track down the petty
11911 pirates.
11912 </p><p>
11913 But we're a long way away from whittling the problem down to this
11914 subset of type A sharers. And our focus until we're there should not
11915 be on finding ways to break the Internet. Our focus until we're there
11916
11917
11918 should be on how to make sure the artists are paid, while protecting
11919 the space for innovation and creativity that the Internet is.
11920 </p></div><div class="section"><div class="titlepage"><div><div><h3 class="title"><a name="firelawyers"></a>2.5. 5. Fire Lots of Lawyers</h3></div></div></div><p>
11921 I'm a lawyer. I make lawyers for a living. I believe in the law. I believe
11922 in the law of copyright. Indeed, I have devoted my life to working in
11923 law, not because there are big bucks at the end but because there are
11924 ideals at the end that I would love to live.
11925 </p><p>
11926 Yet much of this book has been a criticism of lawyers, or the role
11927 lawyers have played in this debate. The law speaks to ideals, but it
11928 is my view that our profession has become too attuned to the
11929 client. And in a world where the rich clients have one strong view,
11930 the unwillingness of the profession to question or counter that one
11931 strong view queers the law.
11932 </p><a class="indexterm" name="idp10733216"></a><a class="indexterm" name="idp10734032"></a><p>
11933 The evidence of this bending is compelling. I'm attacked as a
11934 <span class="quote">«<span class="quote">radical</span>»</span> by many within the profession, yet the positions that I am
11935 advocating are precisely the positions of some of the most moderate
11936 and significant figures in the history of this branch of the
11937 law. Many, for example, thought crazy the challenge that we brought to
11938 the Copyright Term Extension Act. Yet just thirty years ago, the
11939 dominant scholar and practitioner in the field of copyright, Melville
11940 Nimmer, thought it obvious.<a href="#ftn.idp10736368" class="footnote" name="idp10736368"><sup class="footnote">[221]</sup></a>
11941
11942 </p><p>
11943 However, my criticism of the role that lawyers have played in this
11944 debate is not just about a professional bias. It is more importantly
11945 about our failure to actually reckon the costs of the law.
11946 </p><p>
11947 Economists are supposed to be good at reckoning costs and benefits.
11948 But more often than not, economists, with no clue about how the legal
11949 system actually functions, simply assume that the transaction costs of
11950 the legal system are slight.<a href="#ftn.idp10739488" class="footnote" name="idp10739488"><sup class="footnote">[222]</sup></a>
11951 They see a system that has been around for hundreds of years, and they
11952 assume it works the way their elementary school civics class taught
11953 them it works.
11954 </p><p>
11955
11956 But the legal system doesn't work. Or more accurately, it doesn't work
11957 for anyone except those with the most resources. Not because the
11958 system is corrupt. I don't think our legal system (at the federal
11959 level, at least) is at all corrupt. I mean simply because the costs of
11960 our legal system are so astonishingly high that justice can
11961 practically never be done.
11962 </p><p>
11963 These costs distort free culture in many ways. A lawyer's time is
11964 billed at the largest firms at more than $400 per hour. How much time
11965 should such a lawyer spend reading cases carefully, or researching
11966 obscure strands of authority? The answer is the increasing reality:
11967 very little.  The law depended upon the careful articulation and
11968 development of doctrine, but the careful articulation and development
11969 of legal doctrine depends upon careful work. Yet that careful work
11970 costs too much, except in the most high-profile and costly cases.
11971 </p><p>
11972 The costliness and clumsiness and randomness of this system mock
11973 our tradition. And lawyers, as well as academics, should consider it
11974 their duty to change the way the law works&#8212;or better, to change the
11975 law so that it works. It is wrong that the system works well only for the
11976 top 1 percent of the clients. It could be made radically more efficient,
11977 and inexpensive, and hence radically more just.
11978 </p><p>
11979 But until that reform is complete, we as a society should keep the law
11980 away from areas that we know it will only harm. And that is precisely
11981 what the law will too often do if too much of our culture is left to
11982 its review.
11983 </p><a class="indexterm" name="idp10747840"></a><p>
11984 Think about the amazing things your kid could do or make with digital
11985 technology&#8212;the film, the music, the Web page, the blog. Or think
11986 about the amazing things your community could facilitate with digital
11987 technology&#8212;a wiki, a barn raising, activism to change something.
11988 Think about all those creative things, and then imagine cold molasses
11989 poured onto the machines. This is what any regime that requires
11990 permission produces. Again, this is the reality of Brezhnev's Russia.
11991 </p><p>
11992 The law should regulate in certain areas of culture&#8212;but it should
11993 regulate culture only where that regulation does good. Yet lawyers
11994
11995
11996 rarely test their power, or the power they promote, against this
11997 simple pragmatic question: <span class="quote">«<span class="quote">Will it do good?</span>»</span> When challenged about
11998 the expanding reach of the law, the lawyer answers, <span class="quote">«<span class="quote">Why not?</span>»</span>
11999 </p><p>
12000 We should ask, <span class="quote">«<span class="quote">Why?</span>»</span> Show me why your regulation of culture is
12001 needed. Show me how it does good. And until you can show me both,
12002 keep your lawyers away.
12003 </p></div></div><div class="footnotes"><br><hr style="width:100; text-align:left;margin-left: 0"><div id="ftn.idp10462224" class="footnote"><p><a href="#idp10462224" class="para"><sup class="para">[210] </sup></a>
12004
12005
12006 See, for example, Marc Rotenberg, <span class="quote">«<span class="quote">Fair Information Practices and the
12007 Architecture of Privacy (What Larry Doesn't Get),</span>»</span> <em class="citetitle">Stanford Technology
12008 Law Review</em> 1 (2001): par. 6&#8211;18, available at
12009
12010 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #72</a>
12011 (describing examples in which technology defines privacy policy). See
12012 also Jeffrey Rosen, <em class="citetitle">The Naked Crowd: Reclaiming Security and Freedom
12013 in an Anxious Age</em> (New York: Random House, 2004) (mapping tradeoffs
12014 between technology and privacy).</p></div><div id="ftn.idp10549632" class="footnote"><p><a href="#idp10549632" class="para"><sup class="para">[211] </sup></a>
12015
12016 <em class="citetitle">Willful Infringement: A Report from the Front Lines of the Real
12017 Culture Wars</em> (2003), produced by Jed Horovitz, directed by Greg
12018 Hittelman, a Fiat Lucre production, available at
12019 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #72</a>.
12020 </p></div><div id="ftn.idp10570592" class="footnote"><p><a href="#idp10570592" class="para"><sup class="para">[212] </sup></a>
12021
12022 The proposal I am advancing here would apply to American works only.
12023 Obviously, I believe it would be beneficial for the same idea to be
12024 adopted by other countries as well.</p></div><div id="ftn.idp10581856" class="footnote"><p><a href="#idp10581856" class="para"><sup class="para">[213] </sup></a>
12025
12026 There would be a complication with derivative works that I have not
12027 solved here. In my view, the law of derivatives creates a more complicated
12028 system than is justified by the marginal incentive it creates.
12029 </p></div><div id="ftn.idp10595008" class="footnote"><p><a href="#idp10595008" class="para"><sup class="para">[214] </sup></a>
12030
12031
12032 <span class="quote">«<span class="quote">A Radical Rethink,</span>»</span> <em class="citetitle">Economist</em>, 366:8308 (25 January 2003): 15,
12033 available at
12034 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #74</a>.
12035 </p></div><div id="ftn.idp10608048" class="footnote"><p><a href="#idp10608048" class="para"><sup class="para">[215] </sup></a>
12036
12037 Department of Veterans Affairs, Veteran's Application for Compensation
12038 and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001),
12039 available at
12040 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #75</a>.
12041 </p></div><div id="ftn.idp10623344" class="footnote"><p><a href="#idp10623344" class="para"><sup class="para">[216] </sup></a>
12042
12043 Benjamin Kaplan, <em class="citetitle">An Unhurried View of Copyright</em> (New York: Columbia
12044 University Press, 1967), 32.
12045 </p></div><div id="ftn.idp10625792" class="footnote"><p><a href="#idp10625792" class="para"><sup class="para">[217] </sup></a>
12046  Ibid., 56.
12047 </p></div><div id="ftn.idp10634480" class="footnote"><p><a href="#idp10634480" class="para"><sup class="para">[218] </sup></a>
12048
12049 Paul Goldstein, <em class="citetitle">Copyright's Highway: From Gutenberg to the Celestial
12050 Jukebox</em> (Stanford: Stanford University Press, 2003), 187&#8211;216.
12051 <a class="indexterm" name="idp10463920"></a>
12052 </p></div><div id="ftn.idp10660688" class="footnote"><p><a href="#idp10660688" class="para"><sup class="para">[219] </sup></a>
12053
12054 See, for example, <span class="quote">«<span class="quote">Music Media Watch,</span>»</span> The J@pan Inc. Newsletter, 3
12055 April 2002, available at
12056 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #76</a>.
12057 </p></div><div id="ftn.idp10680416" class="footnote"><p><a href="#idp10680416" class="para"><sup class="para">[220] </sup></a>
12058
12059 <a class="indexterm" name="idxartistspayments3"></a>
12060 William Fisher, <em class="citetitle">Digital Music: Problems and Possibilities</em> (last
12061 revised: 10 October 2000), available at
12062 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #77</a>; William
12063 Fisher, <em class="citetitle">Promises to Keep: Technology, Law, and the Future of
12064 Entertainment</em> (forthcoming) (Stanford: Stanford University Press,
12065 2004), ch. 6, available at
12066 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #78</a>. Professor
12067 Netanel has proposed a related idea that would exempt noncommercial
12068 sharing from the reach of copyright and would establish compensation
12069 to artists to balance any loss. See Neil Weinstock Netanel, <span class="quote">«<span class="quote">Impose a
12070 Noncommercial Use Levy to Allow Free P2P File Sharing,</span>»</span> available at
12071 <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
12072 Broadband?</span>»</span> <em class="citetitle">Washington Post</em>, 8 January 2002, A17; Philip S. Corwin on
12073 behalf of Sharman Networks, A Letter to Senator Joseph R. Biden, Jr.,
12074 Chairman of the Senate Foreign Relations Committee, 26 February 2002,
12075 available at
12076 <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
12077 Use Fee (IPUF)</em>, 3 March 2002, available at
12078 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #81</a>; Jefferson Graham,
12079 <span class="quote">«<span class="quote">Kazaa, Verizon Propose to Pay Artists Directly,</span>»</span> <em class="citetitle">USA Today</em>, 13 May
12080 2002, available at
12081 <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>
12082 IEEE Spectrum Online, 1 July 2002, available at
12083 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #83</a>; Declan
12084 McCullagh, <span class="quote">«<span class="quote">Verizon's Copyright Campaign,</span>»</span> CNET News.com, 27 August
12085 2002, available at
12086 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #84</a>.
12087 Fisher's proposal is very similar to Richard Stallman's proposal for
12088 DAT. Unlike Fisher's, Stallman's proposal would not pay artists directly
12089 proportionally, though more popular artists would get more than the less
12090 popular. As is typical with Stallman, his proposal predates the current
12091 debate by about a decade. See
12092 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #85</a>.
12093 <a class="indexterm" name="idp10695248"></a>
12094 <a class="indexterm" name="idp10696064"></a>
12095 <a class="indexterm" name="idp10696880"></a>
12096 <a class="indexterm" name="idp10697712"></a>
12097 </p></div><div id="ftn.idp10736368" class="footnote"><p><a href="#idp10736368" class="para"><sup class="para">[221] </sup></a>
12098
12099 Lawrence Lessig, <span class="quote">«<span class="quote">Copyright's First Amendment</span>»</span> (Melville B. Nimmer
12100 Memorial Lecture), <em class="citetitle">UCLA Law Review</em> 48 (2001): 1057, 1069&#8211;70.
12101 </p></div><div id="ftn.idp10739488" class="footnote"><p><a href="#idp10739488" class="para"><sup class="para">[222] </sup></a>
12102
12103 A good example is the work of Professor Stan Liebowitz. Liebowitz is
12104 to be commended for his careful review of data about infringement,
12105 leading him to question his own publicly stated
12106 position&#8212;twice. He initially predicted that downloading would
12107 substantially harm the industry. He then revised his view in light of
12108 the data, and he has since revised his view again.  Compare Stan
12109 J. Liebowitz, <em class="citetitle">Rethinking the Network Economy: The True Forces That
12110 Drive the Digital Marketplace</em> (New York: Amacom, 2002), (reviewing his
12111 original view but expressing skepticism) with Stan J.  Liebowitz,
12112 <span class="quote">«<span class="quote">Will MP3s Annihilate the Record Industry?</span>»</span> working paper, June 2003,
12113 available at
12114 <a class="ulink" href="http://free-culture.cc/notes/" target="_top">link #86</a>.
12115 Liebowitz's careful analysis is extremely valuable in estimating the
12116 effect of file-sharing technology. In my view, however, he
12117 underestimates the costs of the legal system. See, for example,
12118 <em class="citetitle">Rethinking</em>, 174&#8211;76.
12119 <a class="indexterm" name="idp10738048"></a>
12120 </p></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-notes"></a>Chapter . Notes</h1></div></div></div><p>
12121 Throughout this text, there are references to links on the World Wide
12122 Web. As anyone who has tried to use the Web knows, these links can be
12123 highly unstable. I have tried to remedy the instability by redirecting
12124 readers to the original source through the Web site associated with
12125 this book. For each link below, you can go to
12126 <a class="ulink" href="http://free-culture.cc/notes" target="_top">http://free-culture.cc/notes</a>
12127 and locate the original source by clicking on the number after the #
12128 sign. If the original link remains alive, you will be redirected to
12129 that link. If the original link has disappeared, you will be
12130 redirected to an appropriate reference for the material.
12131 </p><div class="index"><div class="titlepage"><div><div><h2 class="title"><a name="idp10756272"></a>Index</h2></div></div></div><div class="index"><div class="indexdiv"><h3>Symbols</h3><dl><dt>60 Minutes, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt></dl></div><div class="indexdiv"><h3>A</h3><dl><dt>ABC, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>academic journals, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>Adobe eBook Reader, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>advertising, <a class="indexterm" href="#mere-copyists">Chapter Two: «Mere Copyists»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>, <a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>-<a class="indexterm" href="#lawreach">Law and Architecture: Reach</a>, <a class="indexterm" href="#marketconcentration">Market: Concentration</a>-<a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Africa, medications for HIV patients in, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Agee, Michael, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a>-<a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>agricultural patents, <a class="indexterm" href="#piracy-i">Piracy I</a></dt><dt>Aibo robotic dog, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>AIDS medications, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>air traffic, land ownership vs., <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a></dt><dt>Akerlof, George, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Alben, Alex, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a>-<a class="indexterm" href="#transformers">Chapter Eight: Transformers</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>-<a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#freefairuse">3. Free Use Vs. Fair Use</a></dt><dt>alcohol prohibition, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Alice's Adventures in Wonderland (Carroll), <a class="indexterm" href="#lawforce">Architecture and Law: Force</a>-<a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>All in the Family, <a class="indexterm" href="#marketconcentration">Market: Concentration</a></dt><dt>Allen, Paul, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>Amazon, <a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a>-<a class="indexterm" href="#examples">Rebuilding Freedoms Previously Presumed: Examples</a></dt><dt>American Association of Law Libraries, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>American Graphophone Company, <a class="indexterm" href="#recordedmusic">Recorded Music</a></dt><dt>Americans with Disabilities Act (1990), <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a></dt><dt>Andromeda, <a class="indexterm" href="#corruptingcitizens">Corrupting Citizens</a></dt><dt>Anello, Douglas, <a class="indexterm" href="#cabletv">Cable TV</a></dt><dt>animated cartoons, <a class="indexterm" href="#creators">Chapter One: Creators</a>-<a class="indexterm" href="#creators">Chapter One: Creators</a></dt><dt>antiretroviral drugs, <a class="indexterm" href="#c-conclusion">Conclusion</a>-<a class="indexterm" href="#c-conclusion">Conclusion</a></dt><dt>Apple Corporation, <a class="indexterm" href="#c-conclusion">Conclusion</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>architecture, constraint effected through, <a class="indexterm" href="#property-i">Chapter Ten: «Property»</a>, <a class="indexterm" href="#hollywood">Why Hollywood Is Right</a>-<a class="indexterm" href="#hollywood">Why Hollywood Is Right</a></dt><dt>archive.org, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a></dt><dd><dl><dt>(see also Internet Archive)</dt></dl></dd><dt>archives, digital, <a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>-<a class="indexterm" href="#collectors">Chapter Nine: Collectors</a>, <a class="indexterm" href="#together">Together</a>, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>Aristotle, <a class="indexterm" href="#lawforce">Architecture and Law: Force</a></dt><dt>Armstrong, Edwin Howard, <a class="indexterm" href="#c-introduction">Introduction</a>-<a class="indexterm" href="#c-introduction">Introduction</a>, <a class="indexterm" href="#harms">Chapter Twelve: Harms</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a></dt><dt>Arrow, Kenneth, <a class="indexterm" href="#eldred">Chapter Thirteen: Eldred</a></dt><dt>art, underground, <a class="indexterm" href="#constrain">Constraining Creators</a></dt><dt>artists</dt><dd><dl><dt>publicity rights on images of, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt><dt>recording industry payments to, <a class="indexterm" href="#catalogs">Chapter Three: Catalogs</a>, <a class="indexterm" href="#radio">Radio</a>-<a class="indexterm" href="#radio">Radio</a>, <a class="indexterm" href="#piracy-ii">Piracy II</a>, <a class="indexterm" href="#innovators">Constraining Innovators</a>, <a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a>-<a class="indexterm" href="#liberatemusic">4. Liberate the Music&#8212;Again</a></dt><dt>retrospective compilations on, <a class="indexterm" href="#transformers">Chapter Eight: Transformers</a>-<a class="indexterm" href="#transformers">Chapter Eight: Transformers</a></dt></dl></dd><dt>ASCAP, <a class="indexterm" href="#idp7013104">«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="#idp7013104">«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="#idp7013104">«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="#idp7013104">«Piracy»</a>-<a class="indexterm" href="#idp7013104">«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="#idp7013104">«Piracy»</a>-<a class="indexterm" href="#idp7013104">«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="#idp7013104">«Piracy»</a>-<a class="indexterm" href="#idp7013104">«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="#idp7013104">«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="#idp7013104">«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="#idp7013104">«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="#idp7013104">«Piracy»</a>-<a class="indexterm" href="#idp7013104">«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="#idp7013104">«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="#idp7970448">«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="#idp7013104">«Piracy»</a>-<a class="indexterm" href="#idp7013104">«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="#idp7013104">«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="#idp7013104">«Piracy»</a>-<a class="indexterm" href="#idp7013104">«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="#idp7970448">«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="#idp7013104">«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="#idp7013104">«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="#idp7013104">«Piracy»</a>, <a class="indexterm" href="#lawscope">Law: Scope</a></dt></dl></div></div></div></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-acknowledgments"></a>Chapter . Acknowledgments</h1></div></div></div><p>
12132 This book is the product of a long and as yet unsuccessful struggle that
12133 began when I read of Eric Eldred's war to keep books free. Eldred's
12134 work helped launch a movement, the free culture movement, and it is
12135 to him that this book is dedicated.
12136 </p><a class="indexterm" name="idp10759248"></a><p>
12137 I received guidance in various places from friends and academics,
12138 including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner,
12139 Mark Rose, and Kathleen Sullivan. And I received correction and
12140 guidance from many amazing students at Stanford Law School and
12141 Stanford University. They included Andrew B. Coan, John Eden, James
12142 P. Fellers, Christopher Guzelian, Erica Goldberg, Robert Hallman,
12143 Andrew Harris, Matthew Kahn, Brian Link, Ohad Mayblum, Alina Ng, and
12144 Erica Platt. I am particularly grateful to Catherine Crump and Harry
12145 Surden, who helped direct their research, and to Laura Lynch, who
12146 brilliantly managed the army that they assembled, and provided her own
12147 critical eye on much of this.
12148 </p><p>
12149 Yuko Noguchi helped me to understand the laws of Japan as well as
12150 its culture. I am thankful to her, and to the many in Japan who helped
12151 me prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki,
12152 Michihiro Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro
12153
12154 Yonezawa. I am thankful as well as to Professor Nobuhiro Nakayama,
12155 and the Tokyo University Business Law Center, for giving me the
12156 chance to spend time in Japan, and to Tadashi Shiraishi and Kiyokazu
12157 Yamagami for their generous help while I was there.
12158 </p><p>
12159 These are the traditional sorts of help that academics regularly draw
12160 upon. But in addition to them, the Internet has made it possible to
12161 receive advice and correction from many whom I have never even
12162 met. Among those who have responded with extremely helpful advice to
12163 requests on my blog about the book are Dr. Mohammad Al-Ubaydli, David
12164 Gerstein, and Peter DiMauro, as well as a long list of those who had
12165 specific ideas about ways to develop my argument. They included
12166 Richard Bondi, Steven Cherry, David Coe, Nik Cubrilovic, Bob Devine,
12167 Charles Eicher, Thomas Guida, Elihu M. Gerson, Jeremy Hunsinger,
12168 Vaughn Iverson, John Karabaic, Jeff Keltner, James Lindenschmidt,
12169 K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan
12170 McMullen, Fred Norton, John Pormann, Pedro A. D.  Rezende, Shabbir
12171 Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker,
12172 Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt
12173 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>
12174 and Richard Yanco. (I apologize if I have missed anyone; with
12175 computers come glitches, and a crash of my e-mail system meant I lost
12176 a bunch of great replies.)
12177 </p><p>
12178 Richard Stallman and Michael Carroll each read the whole book in
12179 draft, and each provided extremely helpful correction and advice.
12180 Michael helped me to see more clearly the significance of the
12181 regulation of derivitive works. And Richard corrected an
12182 embarrassingly large number of errors. While my work is in part
12183 inspired by Stallman's, he does not agree with me in important places
12184 throughout this book.
12185 </p><p>
12186 Finally, and forever, I am thankful to Bettina, who has always
12187 insisted that there would be unending happiness away from these
12188 battles, and who has always been right. This slow learner is, as ever,
12189 grateful for her perpetual patience and love.
12190 </p></div><div class="chapter"><div class="titlepage"><div><div><h1 class="title"><a name="c-about-this-edition"></a>Chapter . About this edition</h1></div></div></div><p>
12191 This edition of <em class="citetitle">Free Culture</em> is the result of
12192 three years of volunteer work.  The idea came from a discussion I had
12193 around ten years ago with a friend about the copyright debate in
12194 Norway, and how rarely the difficulties of long copyright made it into
12195 the public debate.  A bit more than three years ago I finally had a
12196 look again at the idea and decided to publish a printed Norwegian
12197 Bokmål version of <em class="citetitle">Free Culture</em>, translated and
12198 formatted by volunteers.  The new English edition is a by-product of
12199 the translation process.
12200   </p><p>
12201 Thanks to the Debian Edu / Skolelinux project, I already had
12202 experience translating Docbook documents, and it seemed like a good
12203 format for this book too.  I found a Docbook formatted version of the
12204 book created by Hans Schou.  Initial testing showed lots of Docbook
12205 validation errors in this version, but after some work I was able to
12206 transform it to PDF and EPUB.  This was the start of the translation
12207 project.  The Docbook file improved over time, and build rules were
12208 added to create both English and Bokmål versions.  Finally, a call for
12209 volunteers went out to help me with the translation.
12210   </p><p>
12211 Several people joined, and Anders Hagen Jarmund, Kirill Miazine, Odd
12212 Kleiva, Kjetil Kilhavn og Kjetil T. Homme assisted with the initial
12213 translation.  Ralph Amissah and his SiSu version provided index
12214 entries.  Morten Sickel and Alexander Alemayhu helped with the
12215 figures, redrawing some of the bitmaps as vector images.  Wivi
12216 Reinholdtsen, Ingrid Yrvin and Johannes Larsen did very valuable
12217 proofreading.  Håkon Wium Lie helped me track down a good replacement
12218 font without usage restrictions instead of the one in the original
12219 PDF.  The PDF typesetting is done using dblatex, which we selected
12220 over the alternatives thanks to the invaluable and quick help from
12221 Benoît Guillon and Andreas Hoenen.  Thomas Gramstad donated ISBN
12222 numbers needed for distribution to book stores.  Marc Jeanmougin from
12223 the inkscape community helped me replicate the original front cover.
12224 The support of Lawrence Lessig helped me to complete the
12225 project&#8212;I am very thankful he had the original screen shots
12226 still available after 11 years.
12227   </p><p>
12228 In addition to these great contributors, I am very grateful to Mari
12229 and my family for their patience with me in this project.
12230   </p><p>
12231 &#8212; Petter Reinholdtsen, Oslo 2015-09-07
12232   </p></div><div class="index"><div class="titlepage"><div><div><h1 class="title"><a name="idp10775024"></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="#idp7013104">«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="#idp7013104">«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="#idp7013104">«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="#idp7013104">«Piracy»</a>-<a class="indexterm" href="#idp7013104">«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="#idp7013104">«Piracy»</a>-<a class="indexterm" href="#idp7013104">«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="#idp7013104">«Piracy»</a>-<a class="indexterm" href="#idp7013104">«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="#idp7013104">«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="#idp7013104">«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="#idp7013104">«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="#idp7013104">«Piracy»</a>-<a class="indexterm" href="#idp7013104">«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="#idp7013104">«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="#idp7970448">«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="#idp7013104">«Piracy»</a>-<a class="indexterm" href="#idp7013104">«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="#idp7013104">«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="#idp7013104">«Piracy»</a>-<a class="indexterm" href="#idp7013104">«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="#idp7970448">«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="#idp7013104">«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="#idp7013104">«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="#idp7013104">«Piracy»</a>, <a class="indexterm" href="#lawscope">Law: Scope</a></dt></dl></div></div></div><div class="colophon"><h1 class="title"><a name="idp10775280"></a></h1><p>
12233 Free culture: How big media uses technology and the law to lock down
12234 culture and control creativity / Lawrence Lessig.
12235 </p><p>
12236 Copyright © 2004 Lawrence Lessig.  Some rights reserved.
12237 </p><p>
12238 <a class="ulink" href="http://free-culture.cc/" target="_top">http://free-culture.cc/</a>
12239 </p><p>
12240 Published in English and Norwegian Bokmål 2015 by Petter Reinholdtsen
12241 with help from many volunteers.  Typeset with dblatex using the font
12242 Crimson Text.
12243 </p><p>
12244 First published 2004 by The Penguin Press.
12245 </p><p>
12246 Excerpt from an editorial titled <span class="quote">«<span class="quote">The Coming of Copyright
12247 Perpetuity,</span>»</span> <em class="citetitle">The New York Times</em>, January
12248 16, 2003. Copyright © 2003 by The New York Times Co.  Reprinted
12249 with permission.
12250 </p><p>
12251 Cartoon in figure
12252 <a class="xref" href="#fig-1711-vcr-handgun-cartoonfig" title="Figure 10.18. &#8212; On which item have the courts ruled that manufacturers and retailers be held responsible for having supplied the equipment?">10.18</a> by
12253 Paul Conrad, copyright Tribune Media Services, Inc.  All rights
12254 reserved. Reprinted with permission.
12255 </p><p>
12256 Diagram in figure
12257 <a class="xref" href="#fig-1761-pattern-modern-media-ownership" title="Figure 10.19. ">10.19</a>
12258 courtesy of the office of FCC Commissioner, Michael J. Copps.
12259 </p><p>
12260 Cover created by Petter Reinholdtsen using inkscape.
12261 </p><p>
12262 The quotes on the cover came from
12263 <a class="ulink" href="http://free-culture.cc/jacket/" target="_top">http://free-culture.cc/jacket/</a>.
12264 </p><p>
12265 Portrait on the cover was created 2013 by ActuaLitté and licensed
12266 under a Creative Commons Attribution-ShareAlike 2.0 license.  It was
12267 downloaded from
12268 <a class="ulink" href="https://commons.wikimedia.org/wiki/File%3ALawrence_Lessig_(11014343366)_(cropped).jpg" target="_top">https://commons.wikimedia.org/wiki/File%3ALawrence_Lessig_(11014343366)_(cropped).jpg</a>.
12269 </p><p>
12270 Includes index.
12271 </p><p>
12272 Classifications:
12273 </p><p>
12274 (Dewey)
12275 306.4,
12276 306.40973,
12277 306.46,
12278 341.7582,
12279 343.7309/9
12280 </p><p>
12281 (UDK) 347.78
12282 </p><p>
12283 (US Library of Congress) KF2979.L47 2004
12284 </p><p>
12285 (ACM CRCS) K.4.1
12286 </p><p>
12287 Thomas Gramstad Forlag donated the ISBN numbers.
12288 </p><p>
12289 The Docbook source is available from
12290 <a class="ulink" href="https://github.com/petterreinholdtsen/free-culture-lessig" target="_top">https://github.com/petterreinholdtsen/free-culture-lessig</a>.
12291 Please report any issues with the book there.
12292 </p><p>
12293 This book is licensed under a Creative Commons license. This license
12294 permits non-commercial use of this work, so long as attribution is
12295 given.  For more information about the license visit
12296 <a class="ulink" href="http://creativecommons.org/licenses/by-nc/1.0/" target="_top">http://creativecommons.org/licenses/by-nc/1.0/</a>.
12297 </p><p>
12298 This book is a proof reading draft.  Please visit the github URL above
12299 to get the latest version.
12300 </p><p>
12301 </p><div class="informaltable"><a name="isbn"></a><table border="1"><colgroup><col><col></colgroup><thead><tr><th align="left">ISBN</th><th align="left">Format / MIME-type</th></tr></thead><tbody><tr><td align="left">978-82-8067-010-6</td><td align="left">US Trade edition from lulu.com</td></tr><tr><td align="left">978-82-8067-011-3</td><td align="left">application/pdf</td></tr><tr><td align="left">978-82-8067-012-0</td><td align="left">application/epub+zip</td></tr><tr><td align="left">978-82-8067-013-7</td><td align="left">application/x-mobipocket-ebook</td></tr></tbody></table></div><p>
12302 </p></div></div></body></html>