# SOME DESCRIPTIVE TITLE # Copyright (C) YEAR Free Software Foundation, Inc. # This file is distributed under the same license as the PACKAGE package. # FIRST AUTHOR , YEAR. # #, fuzzy msgid "" msgstr "" "Project-Id-Version: PACKAGE VERSION\n" "POT-Creation-Date: 2012-07-27 11:04+0300\n" "PO-Revision-Date: YEAR-MO-DA HO:MI+ZONE\n" "Last-Translator: FULL NAME \n" "Language-Team: LANGUAGE \n" "Language: \n" "MIME-Version: 1.0\n" "Content-Type: text/plain; charset=UTF-8\n" "Content-Transfer-Encoding: 8bit\n" #. type: Content of the copy entity #: freeculture.xml:13 msgid "©" msgstr "" #. type: Attribute 'lang' of: #: freeculture.xml:19 msgid "en" msgstr "" #. type: Content of: #: freeculture.xml:21 msgid "Free Culture" msgstr "" #. type: Content of: <book><bookinfo> #: freeculture.xml:23 msgid "<abbrev>\"freeculture\"</abbrev>" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:25 freeculture.xml:113 msgid "" "HOW BIG MEDIA USES TECHNOLOGY AND THE LAW TO LOCK DOWN CULTURE AND CONTROL " "CREATIVITY" msgstr "" #. type: Content of: <book><bookinfo> #: freeculture.xml:28 msgid "<pubdate>2004-03-25</pubdate>" msgstr "" #. type: Content of: <book><bookinfo><releaseinfo> #: freeculture.xml:30 msgid "Version 2004-02-10" msgstr "" #. type: Content of: <book><bookinfo><authorgroup><author><firstname> #: freeculture.xml:34 msgid "Lawrence" msgstr "" #. type: Content of: <book><bookinfo><authorgroup><author><surname> #: freeculture.xml:35 msgid "Lessig" msgstr "" #. type: Content of: <book><bookinfo> #: freeculture.xml:39 msgid "<copyright> <year>2004</year> <holder>Lawrence Lessig</holder> </copyright>" msgstr "" #. type: Content of: <book><bookinfo><legalnotice><para> #: freeculture.xml:46 msgid "" "This version of Free Culture is licensed under a Creative Commons " "license. This license permits non-commercial use of this work, so long as " "attribution is given. For more information about the license, click the " "icon above, or visit <ulink " "url=\"http://creativecommons.org/licenses/by-nc/1.0/\">http://creativecommons.org/licenses/by-nc/1.0/</ulink>" msgstr "" #. type: Content of: <book><bookinfo><abstract><title> #: freeculture.xml:55 msgid "ABOUT THE AUTHOR" msgstr "" #. type: Content of: <book><bookinfo><abstract><para> #: freeculture.xml:57 msgid "" "LAWRENCE LESSIG (<ulink " "url=\"http://www.lessig.org/\">http://www.lessig.org</ulink>), professor of " "law and a John A. Wilson Distinguished Faculty Scholar at Stanford Law " "School, is founder of the Stanford Center for Internet and Society and is " "chairman of the Creative Commons (<ulink " "url=\"http://creativecommons.org/\">http://creativecommons.org</ulink>). " "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." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:81 msgid "You can buy a copy of this book by clicking on one of the links below:" msgstr "" #. type: Content of: <book><colophon><itemizedlist><listitem><para> #: freeculture.xml:84 msgid "<ulink url=\"http://www.amazon.com/\">Amazon</ulink>" msgstr "" #. type: Content of: <book><colophon><itemizedlist><listitem><para> #: freeculture.xml:85 msgid "<ulink url=\"http://www.barnesandnoble.com/\">B&N</ulink>" msgstr "" #. type: Content of: <book><colophon><itemizedlist><listitem><para> #: freeculture.xml:86 msgid "<ulink url=\"http://www.penguin.com/\">Penguin</ulink>" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:93 msgid "ALSO BY LAWRENCE LESSIG" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:96 msgid "The Future of Ideas: The Fate of the Commons in a Connected World" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:99 msgid "Code: And Other Laws of Cyberspace" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:104 msgid "THE PENGUIN PRESS, NEW YORK" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:109 msgid "FREE CULTURE" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:119 msgid "LAWRENCE LESSIG" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:124 msgid "" "THE PENGUIN PRESS, a member of Penguin Group (USA) Inc. 375 Hudson Street " "New York, New York" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:128 msgid "Copyright © Lawrence Lessig. All rights reserved." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:131 msgid "" "Excerpt from an editorial titled \"The Coming of Copyright Perpetuity,\" The " "New York Times, January 16, 2003. Copyright © 2003 by The New York " "Times Co. Reprinted with permission." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:136 msgid "" "Cartoon in <xref linkend=\"fig-1711\"/> by Paul Conrad, copyright Tribune " "Media Services, Inc. All rights reserved. Reprinted with permission." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:140 msgid "" "Diagram in <xref linkend=\"fig-1761\"/> courtesy of the office of FCC " "Commissioner, Michael J. Copps." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:144 msgid "Library of Congress Cataloging-in-Publication Data" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:147 msgid "" "Lessig, Lawrence. Free culture : how big media uses technology and the law " "to lock down culture and control creativity / Lawrence Lessig." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:152 msgid "p. cm." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:155 msgid "Includes index." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:158 msgid "ISBN 1-59420-006-8 (hardcover)" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:161 msgid "" "1. Intellectual property—United States. 2. Mass media—United " "States." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:164 msgid "" "3. Technological innovations—United States. 4. Art—United " "States. I. Title." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:167 msgid "KF2979.L47" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:170 msgid "343.7309'9—dc22" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:173 msgid "This book is printed on acid-free paper." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:176 msgid "Printed in the United States of America" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:179 msgid "1 3 5 7 9 10 8 6 4" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:182 msgid "Designed by Marysarah Quinn" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:186 msgid "&translationblock;" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:190 msgid "" "Without limiting the rights under copyright reserved above, no part of this " "publication may be reproduced, stored in or introduced into a retrieval " "system, or transmitted, in any form or by any means (electronic, mechanical, " "photocopying, recording or otherwise), without the prior written permission " "of both the copyright owner and the above publisher of this book. The " "scanning, uploading, and distribution of this book via the Internet or via " "any other means without the permission of the publisher is illegal and " "punishable by law. Please purchase only authorized electronic editions and " "do not participate in or encourage electronic piracy of copyrighted " "materials. Your support of the author's rights is appreciated." msgstr "" #. type: Content of: <book><dedication><para> #: freeculture.xml:207 msgid "" "To Eric Eldred—whose work first drew me to this cause, and for whom it " "continues still." msgstr "" #. type: Content of: <book><dedication><para><figure><title> #: freeculture.xml:213 msgid "Creative Commons, Some rights reserved" msgstr "" #. type: Content of: <book><dedication><para><figure> #: freeculture.xml:214 msgid "<graphic fileref=\"images/cc.png\"></graphic>" msgstr "" #. type: Content of: <book><dedication><para> #: freeculture.xml:212 msgid "<placeholder type=\"figure\" id=\"0\"/>" msgstr "" #. type: Content of: <book><lot><title> #: freeculture.xml:222 msgid "List of figures" msgstr "" #. type: Content of: <book><preface><title> #: freeculture.xml:284 msgid "PREFACE" msgstr "" #. type: Content of: <book><preface><indexterm><primary> #: freeculture.xml:286 msgid "Pogue, David" msgstr "" #. type: Content of: <book><preface><para> #: freeculture.xml:289 msgid "" "At the end of his review of my first book, Code: And Other Laws of " "Cyberspace, David Pogue, a brilliant writer and author of countless " "technical and computer-related texts, wrote this:" msgstr "" #. type: Content of: <book><preface><blockquote><para><footnote><para> #: freeculture.xml:299 msgid "" "David Pogue, \"Don't Just Chat, Do Something,\" New York Times, 30 January " "2000." msgstr "" #. type: Content of: <book><preface><blockquote><para> #: freeculture.xml:295 msgid "" "Unlike actual law, Internet software has no capacity to punish. It doesn't " "affect people who aren't online (and only a tiny minority of the world " "population is). And if you don't like the Internet's system, you can always " "flip off the modem.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><preface><para> #: freeculture.xml:304 msgid "" "Pogue was skeptical of the core argument of the book—that software, or " "\"code,\" functioned as a kind of law—and his review suggested the " "happy thought that if life in cyberspace got bad, we could always \"drizzle, " "drazzle, druzzle, drome\"-like simply flip a switch and be back home. Turn " "off the modem, unplug the computer, and any troubles that exist in that " "space wouldn't \"affect\" us anymore." msgstr "" #. PAGE BREAK 12 #. type: Content of: <book><preface><para> #: freeculture.xml:312 msgid "" "Pogue might have been right in 1999—I'm skeptical, but maybe. But " "even if he was right then, the point is not right now: Free Culture is about " "the troubles the Internet causes even after the modem is turned off. It is " "an argument about how the battles that now rage regarding life on-line have " "fundamentally affected \"people who aren't online.\" There is no switch that " "will insulate us from the Internet's effect." msgstr "" #. type: Content of: <book><preface><para> #: freeculture.xml:322 msgid "" "But unlike Code, the argument here is not much about the Internet itself. It " "is instead about the consequence of the Internet to a part of our tradition " "that is much more fundamental, and, as hard as this is for a geek-wanna-be " "to admit, much more important." msgstr "" #. type: Content of: <book><preface><para><footnote><para> #: freeculture.xml:333 msgid "" "Richard M. Stallman, Free Software, Free Societies 57 (Joshua Gay, " "ed. 2002)." msgstr "" #. type: Content of: <book><preface><para> #: freeculture.xml:328 msgid "" "That tradition is the way our culture gets made. As I explain in the pages " "that follow, we come from a tradition of \"free culture\"—not \"free\" " "as in \"free beer\" (to borrow a phrase from the founder of the free " "software movement<placeholder type=\"footnote\" id=\"0\"/>), but \"free\" as " "in \"free speech,\" \"free markets,\" \"free trade,\" \"free enterprise,\" " "\"free will,\" and \"free elections.\" A free culture supports and protects " "creators and innovators. It does this directly by granting intellectual " "property rights. But it does so indirectly by limiting the reach of those " "rights, to guarantee that follow-on creators and innovators remain as free " "as possible from the control of the past. A free culture is not a culture " "without property, just as a free market is not a market in which everything " "is free. The opposite of a free culture is a \"permission culture\"—a " "culture in which creators get to create only with the permission of the " "powerful, or of creators from the past." msgstr "" #. type: Content of: <book><preface><para> #: freeculture.xml:347 msgid "" "If we understood this change, I believe we would resist it. Not \"we\" on " "the Left or \"you\" on the Right, but we who have no stake in the particular " "industries of culture that defined the twentieth century. Whether you are " "on the Left or the Right, if you are in this sense disinterested, then the " "story I tell here will trouble you. For the changes I describe affect values " "that both sides of our political culture deem fundamental." msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:355 freeculture.xml:12702 msgid "CodePink Women in Peace" msgstr "" #. type: Content of: <book><chapter><para><indexterm><primary> #: freeculture.xml:366 freeculture.xml:376 freeculture.xml:12715 msgid "Safire, William" msgstr "" #. type: Content of: <book><preface><para> #: freeculture.xml:357 msgid "" "We saw a glimpse of this bipartisan outrage in the early summer of 2003. As " "the FCC considered changes in media ownership rules that would relax limits " "on media concentration, an extraordinary coalition generated more than " "700,000 letters to the FCC opposing the change. As William Safire described " "marching \"uncomfortably alongside CodePink Women for Peace and the National " "Rifle Association, between liberal Olympia Snowe and conservative Ted " "Stevens,\" he formulated perhaps most simply just what was at stake: the " "concentration of power. And as he asked, <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><preface><blockquote><para><footnote><para> #: freeculture.xml:374 msgid "" "William Safire, \"The Great Media Gulp,\" New York Times, 22 May 2003. " "<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><preface><blockquote><para> #: freeculture.xml:370 msgid "" "Does that sound unconservative? Not to me. The concentration of " "power—political, corporate, media, cultural—should be anathema " "to conservatives. The diffusion of power through local control, thereby " "encouraging individual participation, is the essence of federalism and the " "greatest expression of democracy.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><preface><para> #: freeculture.xml:381 msgid "" "This idea is an element of the argument of Free Culture, though my focus is " "not just on the concentration of power produced by concentrations in " "ownership, but more importantly, if because less visibly, on the " "concentration of power produced by a radical change in the effective scope " "of the law. The law is changing; that change is altering the way our culture " "gets made; that change should worry you—whether or not you care about " "the Internet, and whether you're on Safire's left or on his right. The " "inspiration for the title and for much of the argument of this book comes " "from the work of Richard Stallman and the Free Software Foundation. Indeed, " "as I reread Stallman's own work, especially the essays in Free Software, " "Free Society, I realize that all of the theoretical insights I develop here " "are insights Stallman described decades ago. One could thus well argue that " "this work is \"merely\" derivative." msgstr "" #. PAGE BREAK 14 #. type: Content of: <book><preface><para> #: freeculture.xml:397 msgid "" "I accept that criticism, if indeed it is a criticism. The work of a lawyer " "is always derivative, and I mean to do nothing more in this book than to " "remind a culture about a tradition that has always been its own. Like " "Stallman, I defend that tradition on the basis of values. Like Stallman, I " "believe those are the values of freedom. And like Stallman, I believe those " "are values of our past that will need to be defended in our future. A free " "culture has been our past, but it will only be our future if we change the " "path we are on right now. Like Stallman's arguments for free software, an " "argument for free culture stumbles on a confusion that is hard to avoid, and " "even harder to understand. A free culture is not a culture without property; " "it is not a culture in which artists don't get paid. A culture without " "property, or in which creators can't get paid, is anarchy, not " "freedom. Anarchy is not what I advance here." msgstr "" #. type: Content of: <book><preface><para> #: freeculture.xml:415 msgid "" "Instead, the free culture that I defend in this book is a balance between " "anarchy and control. A free culture, like a free market, is filled with " "property. It is filled with rules of property and contract that get enforced " "by the state. But just as a free market is perverted if its property becomes " "feudal, so too can a free culture be queered by extremism in the property " "rights that define it. That is what I fear about our culture today. It is " "against that extremism that this book is written." msgstr "" #. type: Content of: <book><chapter><title> #: freeculture.xml:430 msgid "INTRODUCTION" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:432 msgid "" "On December 17, 1903, on a windy North Carolina beach for just shy of one " "hundred seconds, the Wright brothers demonstrated that a heavier-than-air, " "self-propelled vehicle could fly. The moment was electric and its importance " "widely understood. Almost immediately, there was an explosion of interest in " "this newfound technology of manned flight, and a gaggle of innovators began " "to build upon it." msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:444 msgid "" "St. George Tucker, Blackstone's Commentaries 3 (South Hackensack, N.J.: " "Rothman Reprints, 1969), 18." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:440 msgid "" "At the time the Wright brothers invented the airplane, American law held " "that a property owner presumptively owned not just the surface of his land, " "but all the land below, down to the center of the earth, and all the space " "above, to \"an indefinite extent, upwards.\"<placeholder type=\"footnote\" " "id=\"0\"/> For many years, scholars had puzzled about how best to interpret " "the idea that rights in land ran to the heavens. Did that mean that you " "owned the stars? Could you prosecute geese for their willful and regular " "trespass?" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:453 msgid "" "Then came airplanes, and for the first time, this principle of American " "law—deep within the foundations of our tradition, and acknowledged by " "the most important legal thinkers of our past—mattered. If my land " "reaches to the heavens, what happens when United flies over my field? Do I " "have the right to banish it from my property? Am I allowed to enter into an " "exclusive license with Delta Airlines? Could we set up an auction to decide " "how much these rights are worth?" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:461 freeculture.xml:474 freeculture.xml:505 freeculture.xml:524 freeculture.xml:924 freeculture.xml:941 freeculture.xml:986 freeculture.xml:8741 freeculture.xml:12103 freeculture.xml:12806 msgid "Causby, Thomas Lee" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:462 freeculture.xml:475 freeculture.xml:506 freeculture.xml:525 freeculture.xml:925 freeculture.xml:942 freeculture.xml:987 freeculture.xml:8742 freeculture.xml:12104 freeculture.xml:12807 msgid "Causby, Tinie" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:464 msgid "" "In 1945, these questions became a federal case. When North Carolina farmers " "Thomas Lee and Tinie Causby started losing chickens because of low-flying " "military aircraft (the terrified chickens apparently flew into the barn " "walls and died), the Causbys filed a lawsuit saying that the government was " "trespassing on their land. The airplanes, of course, never touched the " "surface of the Causbys' land. But if, as Blackstone, Kent, and Coke had " "said, their land reached to \"an indefinite extent, upwards,\" then the " "government was trespassing on their property, and the Causbys wanted it to " "stop." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:477 msgid "" "The Supreme Court agreed to hear the Causbys' case. Congress had declared " "the airways public, but if one's property really extended to the heavens, " "then Congress's declaration could well have been an unconstitutional " "\"taking\" of property without compensation. The Court acknowledged that " "\"it is ancient doctrine that common law ownership of the land extended to " "the periphery of the universe.\" But Justice Douglas had no patience for " "ancient doctrine. In a single paragraph, hundreds of years of property law " "were erased. As he wrote for the Court," msgstr "" #. type: Content of: <book><chapter><blockquote><para><footnote><para> #: freeculture.xml:497 msgid "" "United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find that " "there could be a \"taking\" if the government's use of its land effectively " "destroyed the value of the Causbys' land. This example was suggested to me " "by Keith Aoki's wonderful piece, \"(Intellectual) Property and Sovereignty: " "Notes Toward a Cultural Geography of Authorship,\" Stanford Law Review 48 " "(1996): 1293, 1333. See also Paul Goldstein, Real Property (Mineola, N.Y.: " "Foundation Press, 1984), 1112–13. <placeholder type=\"indexterm\" " "id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><blockquote><para> #: freeculture.xml:488 msgid "" "[The] doctrine has no place in the modern world. The air is a public " "highway, as Congress has declared. Were that not true, every " "transcontinental flight would subject the operator to countless trespass " "suits. Common sense revolts at the idea. To recognize such private claims to " "the airspace would clog these highways, seriously interfere with their " "control and development in the public interest, and transfer into private " "ownership that to which only the public has a just claim.<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:511 msgid "\"Common sense revolts at the idea.\"" msgstr "" #. PAGE BREAK 18 #. type: Content of: <book><chapter><para> #: freeculture.xml:514 msgid "" "This is how the law usually works. Not often this abruptly or impatiently, " "but eventually, this is how it works. It was Douglas's style not to " "dither. Other justices would have blathered on for pages to reach the " "conclusion that Douglas holds in a single line: \"Common sense revolts at " "the idea.\" But whether it takes pages or a few words, it is the special " "genius of a common law system, as ours is, that the law adjusts to the " "technologies of the time. And as it adjusts, it changes. Ideas that were as " "solid as rock in one age crumble in another." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:527 msgid "" "Or at least, this is how things happen when there's no one powerful on the " "other side of the change. The Causbys were just farmers. And though there " "were no doubt many like them who were upset by the growing traffic in the " "air (though one hopes not many chickens flew themselves into walls), the " "Causbys of the world would find it very hard to unite and stop the idea, and " "the technology, that the Wright brothers had birthed. The Wright brothers " "spat airplanes into the technological meme pool; the idea then spread like a " "virus in a chicken coop; farmers like the Causbys found themselves " "surrounded by \"what seemed reasonable\" given the technology that the " "Wrights had produced. They could stand on their farms, dead chickens in " "hand, and shake their fists at these newfangled technologies all they " "wanted. They could call their representatives or even file a lawsuit. But " "in the end, the force of what seems \"obvious\" to everyone else—the " "power of \"common sense\"—would prevail. Their \"private interest\" " "would not be allowed to defeat an obvious public gain." msgstr "" #. type: Content of: <book><chapter><para><indexterm><primary> #: freeculture.xml:556 msgid "Bell, Alexander Graham" msgstr "" #. type: Content of: <book><chapter><para><indexterm><primary> #: freeculture.xml:557 msgid "Edison, Thomas" msgstr "" #. type: Content of: <book><chapter><para><indexterm><primary> #: freeculture.xml:558 msgid "Faraday, Michael" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:545 msgid "" "Edwin Howard Armstrong is one of America's forgotten inventor geniuses. He " "came to the great American inventor scene just after the titans Thomas " "Edison and Alexander Graham Bell. But his work in the area of radio " "technology was perhaps the most important of any single inventor in the " "first fifty years of radio. He was better educated than Michael Faraday, who " "as a bookbinder's apprentice had discovered electric induction in 1831. But " "he had the same intuition about how the world of radio worked, and on at " "least three occasions, Armstrong invented profoundly important technologies " "that advanced our understanding of radio. <placeholder type=\"indexterm\" " "id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> <placeholder " "type=\"indexterm\" id=\"2\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:561 msgid "" "On the day after Christmas, 1933, four patents were issued to Armstrong for " "his most significant invention—FM radio. Until then, consumer radio " "had been amplitude-modulated (AM) radio. The theorists of the day had said " "that frequency-modulated (FM) radio could never work. They were right about " "FM radio in a narrow band of spectrum. But Armstrong discovered that " "frequency-modulated radio in a wide band of spectrum would deliver an " "astonishing fidelity of sound, with much less transmitter power and static." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:571 msgid "" "On November 5, 1935, he demonstrated the technology at a meeting of the " "Institute of Radio Engineers at the Empire State Building in New York " "City. He tuned his radio dial across a range of AM stations, until the radio " "locked on a broadcast that he had arranged from seventeen miles away. The " "radio fell totally silent, as if dead, and then with a clarity no one else " "in that room had ever heard from an electrical device, it produced the sound " "of an announcer's voice: \"This is amateur station W2AG at Yonkers, New " "York, operating on frequency modulation at two and a half meters.\"" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:582 msgid "The audience was hearing something no one had thought possible:" msgstr "" #. type: Content of: <book><chapter><blockquote><para><footnote><para> #: freeculture.xml:593 msgid "" "Lawrence Lessing, Man of High Fidelity: Edwin Howard Armstrong " "(Philadelphia: J. B. Lipincott Company, 1956), 209." msgstr "" #. type: Content of: <book><chapter><blockquote><para> #: freeculture.xml:586 msgid "" "A glass of water was poured before the microphone in Yonkers; it sounded " "like a glass of water being poured. . . . A paper was crumpled and torn; it " "sounded like paper and not like a crackling forest fire. . . . Sousa marches " "were played from records and a piano solo and guitar number were " "performed. . . . The music was projected with a live-ness rarely if ever " "heard before from a radio \"music box.\"<placeholder type=\"footnote\" " "id=\"0\"/>" msgstr "" #. PAGE BREAK 20 #. type: Content of: <book><chapter><para> #: freeculture.xml:599 msgid "" "As our own common sense tells us, Armstrong had discovered a vastly superior " "radio technology. But at the time of his invention, Armstrong was working " "for RCA. RCA was the dominant player in the then dominant AM radio " "market. By 1935, there were a thousand radio stations across the United " "States, but the stations in large cities were all owned by a handful of " "networks." msgstr "" #. type: Content of: <book><chapter><para><indexterm><primary> #: freeculture.xml:613 freeculture.xml:633 msgid "Sarnoff, David" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:608 msgid "" "RCA's president, David Sarnoff, a friend of Armstrong's, was eager that " "Armstrong discover a way to remove static from AM radio. So Sarnoff was " "quite excited when Armstrong told him he had a device that removed static " "from \"radio.\" But when Armstrong demonstrated his invention, Sarnoff was " "not pleased. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><blockquote><para><footnote><para> #: freeculture.xml:620 msgid "" "See \"Saints: The Heroes and Geniuses of the Electronic Era,\" First " "Electronic Church of America, at www.webstationone.com/fecha, available at " "<ulink url=\"http://free-culture.cc/notes/\">link #1</ulink>." msgstr "" #. type: Content of: <book><chapter><blockquote><para> #: freeculture.xml:617 msgid "" "I thought Armstrong would invent some kind of a filter to remove static from " "our AM radio. I didn't think he'd start a revolution— start up a whole " "damn new industry to compete with RCA.<placeholder type=\"footnote\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:629 msgid "" "Armstrong's invention threatened RCA's AM empire, so the company launched a " "campaign to smother FM radio. While FM may have been a superior technology, " "Sarnoff was a superior tactician. As one author described, <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><blockquote><para><footnote><para> #: freeculture.xml:642 msgid "Lessing, 226." msgstr "" #. type: Content of: <book><chapter><blockquote><para> #: freeculture.xml:637 msgid "" "The forces for FM, largely engineering, could not overcome the weight of " "strategy devised by the sales, patent, and legal offices to subdue this " "threat to corporate position. For FM, if allowed to develop unrestrained, " "posed . . . a complete reordering of radio power . . . and the eventual " "overthrow of the carefully restricted AM system on which RCA had grown to " "power.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:647 msgid "" "RCA at first kept the technology in house, insisting that further tests were " "needed. When, after two years of testing, Armstrong grew impatient, RCA " "began to use its power with the government to stall FM radio's deployment " "generally. In 1936, RCA hired the former head of the FCC and assigned him " "the task of assuring that the FCC assign spectrum in a way that would " "castrate FM—principally by moving FM radio to a different band of " "spectrum. At first, these efforts failed. But when Armstrong and the nation " "were distracted by World War II, RCA's work began to be more " "successful. Soon after the war ended, the FCC announced a set of policies " "that would have one clear effect: FM radio would be crippled. As Lawrence " "Lessing described it," msgstr "" #. type: Content of: <book><chapter><blockquote><para><footnote><para> #: freeculture.xml:666 msgid "Lessing, 256." msgstr "" #. type: Content of: <book><chapter><blockquote><para> #: freeculture.xml:662 msgid "" "The series of body blows that FM radio received right after the war, in a " "series of rulings manipulated through the FCC by the big radio interests, " "were almost incredible in their force and deviousness.<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:670 msgid "AT&T" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:672 msgid "" "To make room in the spectrum for RCA's latest gamble, television, FM radio " "users were to be moved to a totally new spectrum band. The power of FM radio " "stations was also cut, meaning FM could no longer be used to beam programs " "from one part of the country to another. (This change was strongly " "supported by AT&T, because the loss of FM relaying stations would mean " "radio stations would have to buy wired links from AT&T.) The spread of " "FM radio was thus choked, at least temporarily." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:682 msgid "" "Armstrong resisted RCA's efforts. In response, RCA resisted Armstrong's " "patents. After incorporating FM technology into the emerging standard for " "television, RCA declared the patents invalid—baselessly, and almost " "fifteen years after they were issued. It thus refused to pay him " "royalties. For six years, Armstrong fought an expensive war of litigation to " "defend the patents. Finally, just as the patents expired, RCA offered a " "settlement so low that it would not even cover Armstrong's lawyers' " "fees. Defeated, broken, and now broke, in 1954 Armstrong wrote a short note " "to his wife and then stepped out of a thirteenth-story window to his death." msgstr "" #. PAGE BREAK 22 #. type: Content of: <book><chapter><para> #: freeculture.xml:694 msgid "" "This is how the law sometimes works. Not often this tragically, and rarely " "with heroic drama, but sometimes, this is how it works. From the beginning, " "government and government agencies have been subject to capture. They are " "more likely captured when a powerful interest is threatened by either a " "legal or technical change. That powerful interest too often exerts its " "influence within the government to get the government to protect it. The " "rhetoric of this protection is of course always public spirited; the reality " "is something different. Ideas that were as solid as rock in one age, but " "that, left to themselves, would crumble in another, are sustained through " "this subtle corruption of our political process. RCA had what the Causbys " "did not: the power to stifle the effect of technological change." msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:716 msgid "" "Amanda Lenhart, \"The Ever-Shifting Internet Population: A New Look at " "Internet Access and the Digital Divide,\" Pew Internet and American Life " "Project, 15 April 2003: 6, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #2</ulink>." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:710 msgid "" "There's no single inventor of the Internet. Nor is there any good date upon " "which to mark its birth. Yet in a very short time, the Internet has become " "part of ordinary American life. According to the Pew Internet and American " "Life Project, 58 percent of Americans had access to the Internet in 2002, up " "from 49 percent two years before.<placeholder type=\"footnote\" id=\"0\"/> " "That number could well exceed two thirds of the nation by the end of 2004." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:725 msgid "" "As the Internet has been integrated into ordinary life, it has changed " "things. Some of these changes are technical—the Internet has made " "communication faster, it has lowered the cost of gathering data, and so " "on. These technical changes are not the focus of this book. They are " "important. They are not well understood. But they are the sort of thing that " "would simply go away if we all just switched the Internet off. They don't " "affect people who don't use the Internet, or at least they don't affect them " "directly. They are the proper subject of a book about the Internet. But this " "is not a book about the Internet." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:736 msgid "" "Instead, this book is about an effect of the Internet beyond the Internet " "itself: an effect upon how culture is made. My claim is that the Internet " "has induced an important and unrecognized change in that process. That " "change will radically transform a tradition that is as old as the Republic " "itself. Most, if they recognized this change, would reject it. Yet most " "don't even see the change that the Internet has introduced." msgstr "" #. PAGE BREAK 23 #. type: Content of: <book><chapter><para> #: freeculture.xml:745 msgid "" "We can glimpse a sense of this change by distinguishing between commercial " "and noncommercial culture, and by mapping the law's regulation of each. By " "\"commercial culture\" I mean that part of our culture that is produced and " "sold or produced to be sold. By \"noncommercial culture\" I mean all the " "rest. When old men sat around parks or on street corners telling stories " "that kids and others consumed, that was noncommercial culture. When Noah " "Webster published his \"Reader,\" or Joel Barlow his poetry, that was " "commercial culture." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:757 msgid "" "At the beginning of our history, and for just about the whole of our " "tradition, noncommercial culture was essentially unregulated. Of course, if " "your stories were lewd, or if your song disturbed the peace, then the law " "might intervene. But the law was never directly concerned with the creation " "or spread of this form of culture, and it left this culture \"free.\" The " "ordinary ways in which ordinary individuals shared and transformed their " "culture—telling stories, reenacting scenes from plays or TV, " "participating in fan clubs, sharing music, making tapes—were left " "alone by the law." msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary> #: freeculture.xml:782 freeculture.xml:1784 freeculture.xml:1795 msgid "Brandeis, Louis D." msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:774 msgid "" "This is not the only purpose of copyright, though it is the overwhelmingly " "primary purpose of the copyright established in the federal constitution. " "State copyright law historically protected not just the commercial interest " "in publication, but also a privacy interest. By granting authors the " "exclusive right to first publication, state copyright law gave authors the " "power to control the spread of facts about them. See Samuel D. Warren and " "Louis D. Brandeis, \"The Right to Privacy,\" Harvard Law Review 4 (1890): " "193, 198–200. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:768 msgid "" "The focus of the law was on commercial creativity. At first slightly, then " "quite extensively, the law protected the incentives of creators by granting " "them exclusive rights to their creative work, so that they could sell those " "exclusive rights in a commercial marketplace.<placeholder type=\"footnote\" " "id=\"0\"/> This is also, of course, an important part of creativity and " "culture, and it has become an increasingly important part in America. But in " "no sense was it dominant within our tradition. It was instead just one part, " "a controlled part, balanced with the free." msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:792 msgid "" "See Jessica Litman, Digital Copyright (New York: Prometheus Books, 2001), " "ch. 13." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:790 msgid "" "This rough divide between the free and the controlled has now been " "erased.<placeholder type=\"footnote\" id=\"0\"/> The Internet has set the " "stage for this erasure and, pushed by big media, the law has now affected " "it. For the first time in our tradition, the ordinary ways in which " "individuals create and share culture fall within the reach of the regulation " "of the law, which has expanded to draw within its control a vast amount of " "culture and creativity that it never reached before. The technology that " "preserved the balance of our history—between uses of our culture that " "were free and uses of our culture that were only upon permission—has " "been undone. The consequence is that we are less and less a free culture, " "more and more a permission culture." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:808 msgid "" "This change gets justified as necessary to protect commercial creativity. " "And indeed, protectionism is precisely its motivation. But the protectionism " "that justifies the changes that I will describe below is not the limited and " "balanced sort that has defined the law in the past. This is not a " "protectionism to protect artists. It is instead a protectionism to protect " "certain forms of business. Corporations threatened by the potential of the " "Internet to change the way both commercial and noncommercial culture are " "made and shared have united to induce lawmakers to use the law to protect " "them. It is the story of RCA and Armstrong; it is the dream of the Causbys." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:821 msgid "" "For the Internet has unleashed an extraordinary possibility for many to " "participate in the process of building and cultivating a culture that " "reaches far beyond local boundaries. That power has changed the marketplace " "for making and cultivating culture generally, and that change in turn " "threatens established content industries. The Internet is thus to the " "industries that built and distributed content in the twentieth century what " "FM radio was to AM radio, or what the truck was to the railroad industry of " "the nineteenth century: the beginning of the end, or at least a substantial " "transformation. Digital technologies, tied to the Internet, could produce a " "vastly more competitive and vibrant market for building and cultivating " "culture; that market could include a much wider and more diverse range of " "creators; those creators could produce and distribute a much more vibrant " "range of creativity; and depending upon a few important factors, those " "creators could earn more on average from this system than creators do " "today—all so long as the RCAs of our day don't use the law to protect " "themselves against this competition." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:840 msgid "" "Yet, as I argue in the pages that follow, that is precisely what is " "happening in our culture today. These modern-day equivalents of the early " "twentieth-century radio or nineteenth-century railroads are using their " "power to get the law to protect them against this new, more efficient, more " "vibrant technology for building culture. They are succeeding in their plan " "to remake the Internet before the Internet remakes them." msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:857 msgid "" "Amy Harmon, \"Black Hawk Download: Moving Beyond Music, Pirates Use New " "Tools to Turn the Net into an Illicit Video Club,\" New York Times, 17 " "January 2002." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:849 msgid "" "It doesn't seem this way to many. The battles over copyright and the " "Internet seem remote to most. To the few who follow them, they seem mainly " "about a much simpler brace of questions—whether \"piracy\" will be " "permitted, and whether \"property\" will be protected. The \"war\" that has " "been waged against the technologies of the Internet—what Motion " "Picture Association of America (MPAA) president Jack Valenti calls his \"own " "terrorist war\"<placeholder type=\"footnote\" id=\"0\"/>—has been " "framed as a battle about the rule of law and respect for property. To know " "which side to take in this war, most think that we need only decide whether " "we're for property or against it." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:866 msgid "" "If those really were the choices, then I would be with Jack Valenti and the " "content industry. I, too, am a believer in property, and especially in the " "importance of what Mr. Valenti nicely calls \"creative property.\" I believe " "that \"piracy\" is wrong, and that the law, properly tuned, should punish " "\"piracy,\" whether on or off the Internet." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:874 msgid "" "But those simple beliefs mask a much more fundamental question and a much " "more dramatic change. My fear is that unless we come to see this change, the " "war to rid the world of Internet \"pirates\" will also rid our culture of " "values that have been integral to our tradition from the start." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> #: freeculture.xml:888 freeculture.xml:14046 msgid "Netanel, Neil Weinstock" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:886 msgid "" "Neil W. Netanel, \"Copyright and a Democratic Civil Society,\" Yale Law " "Journal 106 (1996): 283. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:880 msgid "" "These values built a tradition that, for at least the first 180 years of our " "Republic, guaranteed creators the right to build freely upon their past, and " "protected creators and innovators from either state or private control. The " "First Amendment protected creators against state control. And as Professor " "Neil Netanel powerfully argues,<placeholder type=\"footnote\" id=\"0\"/> " "copyright law, properly balanced, protected creators against private " "control. Our tradition was thus neither Soviet nor the tradition of " "patrons. It instead carved out a wide berth within which creators could " "cultivate and extend our culture." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:896 msgid "" "Yet the law's response to the Internet, when tied to changes in the " "technology of the Internet itself, has massively increased the effective " "regulation of creativity in America. To build upon or critique the culture " "around us one must ask, Oliver Twist–like, for permission first. " "Permission is, of course, often granted—but it is not often granted to " "the critical or the independent. We have built a kind of cultural nobility; " "those within the noble class live easily; those outside it don't. But it is " "nobility of any form that is alien to our tradition." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:908 msgid "" "The story that follows is about this war. Is it not about the \"centrality " "of technology\" to ordinary life. I don't believe in gods, digital or " "otherwise. Nor is it an effort to demonize any individual or group, for " "neither do I believe in a devil, corporate or otherwise. It is not a " "morality tale. Nor is it a call to jihad against an industry." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:916 msgid "" "It is instead an effort to understand a hopelessly destructive war inspired " "by the technologies of the Internet but reaching far beyond its code. And by " "understanding this battle, it is an effort to map peace. There is no good " "reason for the current struggle around Internet technologies to " "continue. There will be great harm to our tradition and culture if it is " "allowed to continue unchecked. We must come to understand the source of this " "war. We must resolve it soon." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:927 msgid "" "Like the Causbys' battle, this war is, in part, about \"property.\" The " "property of this war is not as tangible as the Causbys', and no innocent " "chicken has yet to lose its life. Yet the ideas surrounding this " "\"property\" are as obvious to most as the Causbys' claim about the " "sacredness of their farm was to them. We are the Causbys. Most of us take " "for granted the extraordinarily powerful claims that the owners of " "\"intellectual property\" now assert. Most of us, like the Causbys, treat " "these claims as obvious. And hence we, like the Causbys, object when a new " "technology interferes with this property. It is as plain to us as it was to " "them that the new technologies of the Internet are \"trespassing\" upon " "legitimate claims of \"property.\" It is as plain to us as it was to them " "that the law should intervene to stop this trespass." msgstr "" #. PAGE BREAK 27 #. type: Content of: <book><chapter><para> #: freeculture.xml:944 msgid "" "And thus, when geeks and technologists defend their Armstrong or Wright " "brothers technology, most of us are simply unsympathetic. Common sense does " "not revolt. Unlike in the case of the unlucky Causbys, common sense is on " "the side of the property owners in this war. Unlike the lucky Wright " "brothers, the Internet has not inspired a revolution on its side." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:954 msgid "" "My hope is to push this common sense along. I have become increasingly " "amazed by the power of this idea of intellectual property and, more " "importantly, its power to disable critical thought by policy makers and " "citizens. There has never been a time in our history when more of our " "\"culture\" was as \"owned\" as it is now. And yet there has never been a " "time when the concentration of power to control the uses of culture has been " "as unquestioningly accepted as it is now." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:963 msgid "" "The puzzle is, Why? Is it because we have come to understand a truth about " "the value and importance of absolute property over ideas and culture? Is it " "because we have discovered that our tradition of rejecting such an absolute " "claim was wrong?" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:969 msgid "" "Or is it because the idea of absolute property over ideas and culture " "benefits the RCAs of our time and fits our own unreflective intuitions?" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:973 msgid "" "Is the radical shift away from our tradition of free culture an instance of " "America correcting a mistake from its past, as we did after a bloody war " "with slavery, and as we are slowly doing with inequality? Or is the radical " "shift away from our tradition of free culture yet another example of a " "political system captured by a few powerful special interests?" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:980 msgid "" "Does common sense lead to the extremes on this question because common sense " "actually believes in these extremes? Or does common sense stand silent in " "the face of these extremes because, as with Armstrong versus RCA, the more " "powerful side has ensured that it has the more powerful view?" msgstr "" #. PAGE BREAK 28 #. type: Content of: <book><chapter><para> #: freeculture.xml:989 msgid "" "I don't mean to be mysterious. My own views are resolved. I believe it was " "right for common sense to revolt against the extremism of the Causbys. I " "believe it would be right for common sense to revolt against the extreme " "claims made today on behalf of \"intellectual property.\" What the law " "demands today is increasingly as silly as a sheriff arresting an airplane " "for trespass. But the consequences of this silliness will be much more " "profound." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:999 msgid "" "The struggle that rages just now centers on two ideas: \"piracy\" and " "\"property.\" My aim in this book's next two parts is to explore these two " "ideas." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:1004 msgid "" "My method is not the usual method of an academic. I don't want to plunge you " "into a complex argument, buttressed with references to obscure French " "theorists—however natural that is for the weird sort we academics have " "become. Instead I begin in each part with a collection of stories that set a " "context within which these apparently simple ideas can be more fully " "understood." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:1012 msgid "" "The two sections set up the core claim of this book: that while the Internet " "has indeed produced something fantastic and new, our government, pushed by " "big media to respond to this \"something new,\" is destroying something very " "old. Rather than understanding the changes the Internet might permit, and " "rather than taking time to let \"common sense\" resolve how best to respond, " "we are allowing those most threatened by the changes to use their power to " "change the law—and more importantly, to use their power to change " "something fundamental about who we have always been." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:1023 msgid "" "We allow this, I believe, not because it is right, and not because most of " "us really believe in these changes. We allow it because the interests most " "threatened are among the most powerful players in our depressingly " "compromised process of making law. This book is the story of one more " "consequence of this form of corruption—a consequence to which most of " "us remain oblivious." msgstr "" #. type: Content of: <book><chapter><title> #: freeculture.xml:1033 msgid "\"PIRACY\"" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:1037 freeculture.xml:4656 msgid "Mansfield, William Murray, Lord" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:1040 msgid "" "Since the inception of the law regulating creative property, there has been " "a war against \"piracy.\" The precise contours of this concept, \"piracy,\" " "are hard to sketch, but the animating injustice is easy to capture. As Lord " "Mansfield wrote in a case that extended the reach of English copyright law " "to include sheet music," msgstr "" #. f1 #. type: Content of: <book><chapter><blockquote><para><footnote><para> #: freeculture.xml:1052 msgid "Bach v. Longman, 98 Eng. Rep. 1274 (1777) (Mansfield)." msgstr "" #. type: Content of: <book><chapter><blockquote><para> #: freeculture.xml:1048 msgid "" "A person may use the copy by playing it, but he has no right to rob the " "author of the profit, by multiplying copies and disposing of them for his " "own use.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. PAGE BREAK 31 #. type: Content of: <book><chapter><para> #: freeculture.xml:1058 msgid "" "Today we are in the middle of another \"war\" against \"piracy.\" The " "Internet has provoked this war. The Internet makes possible the efficient " "spread of content. Peer-to-peer (p2p) file sharing is among the most " "efficient of the efficient technologies the Internet enables. Using " "distributed intelligence, p2p systems facilitate the easy spread of content " "in a way unimagined a generation ago." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:1067 msgid "" "This efficiency does not respect the traditional lines of copyright. The " "network doesn't discriminate between the sharing of copyrighted and " "uncopyrighted content. Thus has there been a vast amount of sharing of " "copyrighted content. That sharing in turn has excited the war, as copyright " "owners fear the sharing will \"rob the author of the profit.\"" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:1075 msgid "" "The warriors have turned to the courts, to the legislatures, and " "increasingly to technology to defend their \"property\" against this " "\"piracy.\" A generation of Americans, the warriors warn, is being raised to " "believe that \"property\" should be \"free.\" Forget tattoos, never mind " "body piercing—our kids are becoming thieves!" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:1082 msgid "" "There's no doubt that \"piracy\" is wrong, and that pirates should be " "punished. But before we summon the executioners, we should put this notion " "of \"piracy\" in some context. For as the concept is increasingly used, at " "its core is an extraordinary idea that is almost certainly wrong." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:1088 msgid "The idea goes something like this:" msgstr "" #. type: Content of: <book><chapter><blockquote><para> #: freeculture.xml:1092 msgid "" "Creative work has value; whenever I use, or take, or build upon the creative " "work of others, I am taking from them something of value. Whenever I take " "something of value from someone else, I should have their permission. The " "taking of something of value from someone else without permission is " "wrong. It is a form of piracy." msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:1100 msgid "Dreyfuss, Rochelle" msgstr "" #. f2 #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:1106 msgid "" "See Rochelle Dreyfuss, \"Expressive Genericity: Trademarks as Language in " "the Pepsi Generation,\" Notre Dame Law Review 65 (1990): 397." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> #: freeculture.xml:1119 freeculture.xml:6749 msgid "Zittrain, Jonathan" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:1114 msgid "" "Lisa Bannon, \"The Birds May Sing, but Campers Can't Unless They Pay Up,\" " "Wall Street Journal, 21 August 1996, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #3</ulink>; Jonathan Zittrain, " "\"Calling Off the Copyright War: In Battle of Property vs. Free Speech, No " "One Wins,\" Boston Globe, 24 November 2002. <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:1102 msgid "" "This view runs deep within the current debates. It is what NYU law professor " "Rochelle Dreyfuss criticizes as the \"if value, then right\" theory of " "creative property<placeholder type=\"footnote\" id=\"0\"/> —if there " "is value, then someone must have a right to that value. It is the " "perspective that led a composers' rights organization, ASCAP, to sue the " "Girl Scouts for failing to pay for the songs that girls sang around Girl " "Scout campfires.<placeholder type=\"footnote\" id=\"1\"/> There was " "\"value\" (the songs) so there must have been a \"right\"—even against " "the Girl Scouts." msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:1124 msgid "ASCAP" msgstr "" #. PAGE BREAK 32 #. type: Content of: <book><chapter><para> #: freeculture.xml:1126 msgid "" "This idea is certainly a possible understanding of how creative property " "should work. It might well be a possible design for a system of law " "protecting creative property. But the \"if value, then right\" theory of " "creative property has never been America's theory of creative property. It " "has never taken hold within our law." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:1134 msgid "" "Instead, in our tradition, intellectual property is an instrument. It sets " "the groundwork for a richly creative society but remains subservient to the " "value of creativity. The current debate has this turned around. We have " "become so concerned with protecting the instrument that we are losing sight " "of the value." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:1141 msgid "" "The source of this confusion is a distinction that the law no longer takes " "care to draw—the distinction between republishing someone's work on " "the one hand and building upon or transforming that work on the " "other. Copyright law at its birth had only publishing as its concern; " "copyright law today regulates both." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:1148 msgid "" "Before the technologies of the Internet, this conflation didn't matter all " "that much. The technologies of publishing were expensive; that meant the " "vast majority of publishing was commercial. Commercial entities could bear " "the burden of the law—even the burden of the Byzantine complexity that " "copyright law has become. It was just one more expense of doing business." msgstr "" #. type: Content of: <book><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:1155 freeculture.xml:1183 msgid "Florida, Richard" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:1176 msgid "" "In The Rise of the Creative Class (New York: Basic Books, 2002), Richard " "Florida documents a shift in the nature of labor toward a labor of " "creativity. His work, however, doesn't directly address the legal " "conditions under which that creativity is enabled or stifled. I certainly " "agree with him about the importance and significance of this change, but I " "also believe the conditions under which it will be enabled are much more " "tenuous. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:1157 msgid "" "But with the birth of the Internet, this natural limit to the reach of the " "law has disappeared. The law controls not just the creativity of commercial " "creators but effectively that of anyone. Although that expansion would not " "matter much if copyright law regulated only \"copying,\" when the law " "regulates as broadly and obscurely as it does, the extension matters a " "lot. The burden of this law now vastly outweighs any original " "benefit—certainly as it affects noncommercial creativity, and " "increasingly as it affects commercial creativity as well. Thus, as we'll see " "more clearly in the chapters below, the law's role is less and less to " "support creativity, and more and more to protect certain industries against " "competition. Just at the time digital technology could unleash an " "extraordinary range of commercial and noncommercial creativity, the law " "burdens this creativity with insanely complex and vague rules and with the " "threat of obscenely severe penalties. We may be seeing, as Richard Florida " "writes, the \"Rise of the Creative Class.\"<placeholder type=\"footnote\" " "id=\"0\"/> Unfortunately, we are also seeing an extraordinary rise of " "regulation of this creative class." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:1189 msgid "" "These burdens make no sense in our tradition. We should begin by " "understanding that tradition a bit more and by placing in their proper " "context the current battles about behavior labeled \"piracy.\"" msgstr "" #. type: Content of: <book><chapter><sect1><title> #: freeculture.xml:1196 msgid "CHAPTER ONE: Creators" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1198 msgid "" "In 1928, a cartoon character was born. An early Mickey Mouse made his debut " "in May of that year, in a silent flop called Plane Crazy. In November, in " "New York City's Colony Theater, in the first widely distributed cartoon " "synchronized with sound, Steamboat Willie brought to life the character that " "would become Mickey Mouse." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1205 msgid "" "Synchronized sound had been introduced to film a year earlier in the movie " "The Jazz Singer. That success led Walt Disney to copy the technique and mix " "sound with cartoons. No one knew whether it would work or, if it did work, " "whether it would win an audience. But when Disney ran a test in the summer " "of 1928, the results were unambiguous. As Disney describes that first " "experiment," msgstr "" #. PAGE BREAK 35 #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:1214 msgid "" "A couple of my boys could read music, and one of them could play a mouth " "organ. We put them in a room where they could not see the screen and " "arranged to pipe their sound into the room where our wives and friends were " "going to see the picture." msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:1221 msgid "" "The boys worked from a music and sound-effects score. After several false " "starts, sound and action got off with the gun. The mouth organist played the " "tune, the rest of us in the sound department bammed tin pans and blew slide " "whistles on the beat. The synchronization was pretty close." msgstr "" #. f1 #. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para> #: freeculture.xml:1234 msgid "" "Leonard Maltin, Of Mice and Magic: A History of American Animated Cartoons " "(New York: Penguin Books, 1987), 34–35." msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:1228 msgid "" "The effect on our little audience was nothing less than electric. They " "responded almost instinctively to this union of sound and motion. I thought " "they were kidding me. So they put me in the audience and ran the action " "again. It was terrible, but it was wonderful! And it was something " "new!<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:1243 msgid "Iwerks, Ub" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1240 msgid "" "Disney's then partner, and one of animation's most extraordinary talents, Ub " "Iwerks, put it more strongly: \"I have never been so thrilled in my " "life. Nothing since has ever equaled it.\" <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1246 msgid "" "Disney had created something very new, based upon something relatively " "new. Synchronized sound brought life to a form of creativity that had " "rarely—except in Disney's hands—been anything more than filler " "for other films. Throughout animation's early history, it was Disney's " "invention that set the standard that others struggled to match. And quite " "often, Disney's great genius, his spark of creativity, was built upon the " "work of others." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1255 msgid "" "This much is familiar. What you might not know is that 1928 also marks " "another important transition. In that year, a comic (as opposed to cartoon) " "genius created his last independently produced silent film. That genius was " "Buster Keaton. The film was Steamboat Bill, Jr." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1261 msgid "" "Keaton was born into a vaudeville family in 1895. In the era of silent film, " "he had mastered using broad physical comedy as a way to spark uncontrollable " "laughter from his audience. Steamboat Bill, Jr. was a classic of this form, " "famous among film buffs for its incredible stunts. The film was classic " "Keaton—wildly popular and among the best of its genre." msgstr "" #. f2 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:1274 msgid "" "I am grateful to David Gerstein and his careful history, described at <ulink " "url=\"http://free-culture.cc/notes/\">link #4</ulink>. According to Dave " "Smith of the Disney Archives, Disney paid royalties to use the music for " "five songs in Steamboat Willie: \"Steamboat Bill,\" \"The Simpleton\" " "(Delille), \"Mischief Makers\" (Carbonara), \"Joyful Hurry No. 1\" (Baron), " "and \"Gawky Rube\" (Lakay). A sixth song, \"The Turkey in the Straw,\" was " "already in the public domain. Letter from David Smith to Harry Surden, 10 " "July 2003, on file with author." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1269 msgid "" "Steamboat Bill, Jr. appeared before Disney's cartoon Steamboat Willie. The " "coincidence of titles is not coincidental. Steamboat Willie is a direct " "cartoon parody of Steamboat Bill,<placeholder type=\"footnote\" id=\"0\"/> " "and both are built upon a common song as a source. It is not just from the " "invention of synchronized sound in The Jazz Singer that we get Steamboat " "Willie. It is also from Buster Keaton's invention of Steamboat Bill, Jr., " "itself inspired by the song \"Steamboat Bill,\" that we get Steamboat " "Willie, and then from Steamboat Willie, Mickey Mouse." msgstr "" #. f3 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:1295 msgid "" "He was also a fan of the public domain. See Chris Sprigman, \"The Mouse that " "Ate the Public Domain,\" Findlaw, 5 March 2002, at <ulink " "url=\"http://free-culture.cc/notes/\">link #5</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1291 msgid "" "This \"borrowing\" was nothing unique, either for Disney or for the " "industry. Disney was always parroting the feature-length mainstream films of " "his day.<placeholder type=\"footnote\" id=\"0\"/> So did many others. Early " "cartoons are filled with knockoffs—slight variations on winning " "themes; retellings of ancient stories. The key to success was the brilliance " "of the differences. With Disney, it was sound that gave his animation its " "spark. Later, it was the quality of his work relative to the production-line " "cartoons with which he competed. Yet these additions were built upon a base " "that was borrowed. Disney added to the work of others before him, creating " "something new out of something just barely old." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1310 msgid "" "Sometimes this borrowing was slight. Sometimes it was significant. Think " "about the fairy tales of the Brothers Grimm. If you're as oblivious as I " "was, you're likely to think that these tales are happy, sweet stories, " "appropriate for any child at bedtime. In fact, the Grimm fairy tales are, " "well, for us, grim. It is a rare and perhaps overly ambitious parent who " "would dare to read these bloody, moralistic stories to his or her child, at " "bedtime or anytime." msgstr "" #. PAGE BREAK 37 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1319 msgid "" "Disney took these stories and retold them in a way that carried them into a " "new age. He animated the stories, with both characters and light. Without " "removing the elements of fear and danger altogether, he made funny what was " "dark and injected a genuine emotion of compassion where before there was " "fear. And not just with the work of the Brothers Grimm. Indeed, the catalog " "of Disney work drawing upon the work of others is astonishing when set " "together: Snow White (1937), Fantasia (1940), Pinocchio (1940), Dumbo " "(1941), Bambi (1942), Song of the South (1946), Cinderella (1950), Alice in " "Wonderland (1951), Robin Hood (1952), Peter Pan (1953), Lady and the Tramp " "(1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961), The " "Sword in the Stone (1963), and The Jungle Book (1967)—not to mention a " "recent example that we should perhaps quickly forget, Treasure Planet " "(2003). In all of these cases, Disney (or Disney, Inc.) ripped creativity " "from the culture around him, mixed that creativity with his own " "extraordinary talent, and then burned that mix into the soul of his " "culture. Rip, mix, and burn." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1339 msgid "" "This is a kind of creativity. It is a creativity that we should remember and " "celebrate. There are some who would say that there is no creativity except " "this kind. We don't need to go that far to recognize its importance. We " "could call this \"Disney creativity,\" though that would be a bit " "misleading. It is, more precisely, \"Walt Disney creativity\"—a form " "of expression and genius that builds upon the culture around us and makes it " "something different." msgstr "" #. f4 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:1353 msgid "" "Until 1976, copyright law granted an author the possibility of two terms: an " "initial term and a renewal term. I have calculated the \"average\" term by " "determining the weighted average of total registrations for any particular " "year, and the proportion renewing. Thus, if 100 copyrights are registered in " "year 1, and only 15 are renewed, and the renewal term is 28 years, then the " "average term is 32.2 years. For the renewal data and other relevant data, " "see the Web site associated with this book, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #6</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1347 msgid "" "In 1928, the culture that Disney was free to draw upon was relatively " "fresh. The public domain in 1928 was not very old and was therefore quite " "vibrant. The average term of copyright was just around thirty " "years—for that minority of creative work that was in fact " "copyrighted.<placeholder type=\"footnote\" id=\"0\"/> That means that for " "thirty years, on average, the authors or copyright holders of a creative " "work had an \"exclusive right\" to control certain uses of the work. To use " "this copyrighted work in limited ways required the permission of the " "copyright owner." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1370 msgid "" "At the end of a copyright term, a work passes into the public domain. No " "permission is then needed to draw upon or use that work. No permission and, " "hence, no lawyers. The public domain is a \"lawyer-free zone.\" Thus, most " "of the content from the nineteenth century was free for Disney to use and " "build upon in 1928. It was free for anyone— whether connected or not, " "whether rich or not, whether approved or not—to use and build upon." msgstr "" #. PAGE BREAK 38 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1379 msgid "" "This is the ways things always were—until quite recently. For most of " "our history, the public domain was just over the horizon. From until 1978, " "the average copyright term was never more than thirty-two years, meaning " "that most culture just a generation and a half old was free for anyone to " "build upon without the permission of anyone else. Today's equivalent would " "be for creative work from the 1960s and 1970s to now be free for the next " "Walt Disney to build upon without permission. Yet today, the public domain " "is presumptive only for content from before the Great Depression." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1392 msgid "" "Of course, Walt Disney had no monopoly on \"Walt Disney creativity.\" Nor " "does America. The norm of free culture has, until recently, and except " "within totalitarian nations, been broadly exploited and quite universal." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1398 msgid "" "Consider, for example, a form of creativity that seems strange to many " "Americans but that is inescapable within Japanese culture: manga, or " "comics. The Japanese are fanatics about comics. Some 40 percent of " "publications are comics, and 30 percent of publication revenue derives from " "comics. They are everywhere in Japanese society, at every magazine stand, " "carried by a large proportion of commuters on Japan's extraordinary system " "of public transportation." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1407 msgid "" "Americans tend to look down upon this form of culture. That's an " "unattractive characteristic of ours. We're likely to misunderstand much " "about manga, because few of us have ever read anything close to the stories " "that these \"graphic novels\" tell. For the Japanese, manga cover every " "aspect of social life. For us, comics are \"men in tights.\" And anyway, " "it's not as if the New York subways are filled with readers of Joyce or even " "Hemingway. People of different cultures distract themselves in different " "ways, the Japanese in this interestingly different way." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1418 msgid "" "But my purpose here is not to understand manga. It is to describe a variant " "on manga that from a lawyer's perspective is quite odd, but from a Disney " "perspective is quite familiar." msgstr "" #. PAGE BREAK 39 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1423 msgid "" "This is the phenomenon of doujinshi. Doujinshi are also comics, but they are " "a kind of copycat comic. A rich ethic governs the creation of doujinshi. It " "is not doujinshi if it is just a copy; the artist must make a contribution " "to the art he copies, by transforming it either subtly or significantly. A " "doujinshi comic can thus take a mainstream comic and develop it " "differently—with a different story line. Or the comic can keep the " "character in character but change its look slightly. There is no formula for " "what makes the doujinshi sufficiently \"different.\" But they must be " "different if they are to be considered true doujinshi. Indeed, there are " "committees that review doujinshi for inclusion within shows and reject any " "copycat comic that is merely a copy." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1437 msgid "" "These copycat comics are not a tiny part of the manga market. They are " "huge. More than 33,000 \"circles\" of creators from across Japan produce " "these bits of Walt Disney creativity. More than 450,000 Japanese come " "together twice a year, in the largest public gathering in the country, to " "exchange and sell them. This market exists in parallel to the mainstream " "commercial manga market. In some ways, it obviously competes with that " "market, but there is no sustained effort by those who control the commercial " "manga market to shut the doujinshi market down. It flourishes, despite the " "competition and despite the law." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1448 msgid "" "The most puzzling feature of the doujinshi market, for those trained in the " "law, at least, is that it is allowed to exist at all. Under Japanese " "copyright law, which in this respect (on paper) mirrors American copyright " "law, the doujinshi market is an illegal one. Doujinshi are plainly " "\"derivative works.\" There is no general practice by doujinshi artists of " "securing the permission of the manga creators. Instead, the practice is " "simply to take and modify the creations of others, as Walt Disney did with " "Steamboat Bill, Jr. Under both Japanese and American law, that \"taking\" " "without the permission of the original copyright owner is illegal. It is an " "infringement of the original copyright to make a copy or a derivative work " "without the original copyright owner's permission." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:1462 msgid "Winick, Judd" msgstr "" #. f5 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:1475 msgid "" "For an excellent history, see Scott McCloud, Reinventing Comics (New York: " "Perennial, 2000)." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1465 msgid "" "Yet this illegal market exists and indeed flourishes in Japan, and in the " "view of many, it is precisely because it exists that Japanese manga " "flourish. As American graphic novelist Judd Winick said to me, \"The early " "days of comics in America are very much like what's going on in Japan " "now. . . . American comics were born out of copying each other. . . . That's " "how [the artists] learn to draw—by going into comic books and not " "tracing them, but looking at them and copying them\" and building from " "them.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1480 msgid "" "American comics now are quite different, Winick explains, in part because of " "the legal difficulty of adapting comics the way doujinshi are " "allowed. Speaking of Superman, Winick told me, \"there are these rules and " "you have to stick to them.\" There are things Superman \"cannot\" do. \"As a " "creator, it's frustrating having to stick to some parameters which are fifty " "years old.\"" msgstr "" #. f6 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:1497 msgid "" "See Salil K. Mehra, \"Copyright and Comics in Japan: Does Law Explain Why " "All the Comics My Kid Watches Are Japanese Imports?\" Rutgers Law Review 55 " "(2002): 155, 182. \"[T]here might be a collective economic rationality that " "would lead manga and anime artists to forgo bringing legal actions for " "infringement. One hypothesis is that all manga artists may be better off " "collectively if they set aside their individual self-interest and decide not " "to press their legal rights. This is essentially a prisoner's dilemma " "solved.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1489 msgid "" "The norm in Japan mitigates this legal difficulty. Some say it is precisely " "the benefit accruing to the Japanese manga market that explains the " "mitigation. Temple University law professor Salil Mehra, for example, " "hypothesizes that the manga market accepts these technical violations " "because they spur the manga market to be more wealthy and " "productive. Everyone would be worse off if doujinshi were banned, so the law " "does not ban doujinshi.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1508 msgid "" "The problem with this story, however, as Mehra plainly acknowledges, is that " "the mechanism producing this laissez faire response is not clear. It may " "well be that the market as a whole is better off if doujinshi are permitted " "rather than banned, but that doesn't explain why individual copyright owners " "don't sue nonetheless. If the law has no general exception for doujinshi, " "and indeed in some cases individual manga artists have sued doujinshi " "artists, why is there not a more general pattern of blocking this \"free " "taking\" by the doujinshi culture?" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1519 msgid "" "I spent four wonderful months in Japan, and I asked this question as often " "as I could. Perhaps the best account in the end was offered by a friend from " "a major Japanese law firm. \"We don't have enough lawyers,\" he told me one " "afternoon. There \"just aren't enough resources to prosecute cases like " "this.\"" msgstr "" #. PAGE BREAK 41 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1526 msgid "" "This is a theme to which we will return: that regulation by law is a " "function of both the words on the books and the costs of making those words " "have effect. For now, focus on the obvious question that is begged: Would " "Japan be better off with more lawyers? Would manga be richer if doujinshi " "artists were regularly prosecuted? Would the Japanese gain something " "important if they could end this practice of uncompensated sharing? Does " "piracy here hurt the victims of the piracy, or does it help them? Would " "lawyers fighting this piracy help their clients or hurt them? Let's pause " "for a moment." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1539 msgid "" "If you're like I was a decade ago, or like most people are when they first " "start thinking about these issues, then just about now you should be puzzled " "about something you hadn't thought through before." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> #: freeculture.xml:1556 freeculture.xml:2730 freeculture.xml:4355 freeculture.xml:4589 freeculture.xml:7144 freeculture.xml:8201 msgid "Vaidhyanathan, Siva" msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:1549 msgid "" "The term intellectual property is of relatively recent origin. See Siva " "Vaidhyanathan, Copyrights and Copywrongs, 11 (New York: New York University " "Press, 2001). See also Lawrence Lessig, The Future of Ideas (New York: " "Random House, 2001), 293 n. 26. The term accurately describes a set of " "\"property\" rights—copyright, patents, trademark, and " "trade-secret—but the nature of those rights is very different. " "<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1544 msgid "" "We live in a world that celebrates \"property.\" I am one of those " "celebrants. I believe in the value of property in general, and I also " "believe in the value of that weird form of property that lawyers call " "\"intellectual property.\"<placeholder type=\"footnote\" id=\"0\"/> A large, " "diverse society cannot survive without property; a large, diverse, and " "modern society cannot flourish without intellectual property." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1563 msgid "" "But it takes just a second's reflection to realize that there is plenty of " "value out there that \"property\" doesn't capture. I don't mean \"money " "can't buy you love,\" but rather, value that is plainly part of a process of " "production, including commercial as well as noncommercial production. If " "Disney animators had stolen a set of pencils to draw Steamboat Willie, we'd " "have no hesitation in condemning that taking as wrong— even though " "trivial, even if unnoticed. Yet there was nothing wrong, at least under the " "law of the day, with Disney's taking from Buster Keaton or from the Brothers " "Grimm. There was nothing wrong with the taking from Keaton because Disney's " "use would have been considered \"fair.\" There was nothing wrong with the " "taking from the Grimms because the Grimms' work was in the public domain." msgstr "" #. PAGE BREAK 42 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1578 msgid "" "Thus, even though the things that Disney took—or more generally, the " "things taken by anyone exercising Walt Disney creativity—are valuable, " "our tradition does not treat those takings as wrong. Some things remain free " "for the taking within a free culture, and that freedom is good." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1587 msgid "" "The same with the doujinshi culture. If a doujinshi artist broke into a " "publisher's office and ran off with a thousand copies of his latest " "work—or even one copy—without paying, we'd have no hesitation in " "saying the artist was wrong. In addition to having trespassed, he would have " "stolen something of value. The law bans that stealing in whatever form, " "whether large or small." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1595 msgid "" "Yet there is an obvious reluctance, even among Japanese lawyers, to say that " "the copycat comic artists are \"stealing.\" This form of Walt Disney " "creativity is seen as fair and right, even if lawyers in particular find it " "hard to say why." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1601 msgid "" "It's the same with a thousand examples that appear everywhere once you begin " "to look. Scientists build upon the work of other scientists without asking " "or paying for the privilege. (\"Excuse me, Professor Einstein, but may I " "have permission to use your theory of relativity to show that you were wrong " "about quantum physics?\") Acting companies perform adaptations of the works " "of Shakespeare without securing permission from anyone. (Does anyone believe " "Shakespeare would be better spread within our culture if there were a " "central Shakespeare rights clearinghouse that all productions of Shakespeare " "must appeal to first?) And Hollywood goes through cycles with a certain kind " "of movie: five asteroid films in the late 1990s; two volcano disaster films " "in 1997." msgstr "" #. PAGE BREAK 43 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1615 msgid "" "Creators here and everywhere are always and at all times building upon the " "creativity that went before and that surrounds them now. That building is " "always and everywhere at least partially done without permission and without " "compensating the original creator. No society, free or controlled, has ever " "demanded that every use be paid for or that permission for Walt Disney " "creativity must always be sought. Instead, every society has left a certain " "bit of its culture free for the taking—free societies more fully than " "unfree, perhaps, but all societies to some degree." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1626 msgid "" "The hard question is therefore not whether a culture is free. All cultures " "are free to some degree. The hard question instead is \"How free is this " "culture?\" How much, and how broadly, is the culture free for others to take " "and build upon? Is that freedom limited to party members? To members of the " "royal family? To the top ten corporations on the New York Stock Exchange? Or " "is that freedom spread broadly? To artists generally, whether affiliated " "with the Met or not? To musicians generally, whether white or not? To " "filmmakers generally, whether affiliated with a studio or not?" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1637 msgid "" "Free cultures are cultures that leave a great deal open for others to build " "upon; unfree, or permission, cultures leave much less. Ours was a free " "culture. It is becoming much less so." msgstr "" #. type: Content of: <book><chapter><sect1><title> #: freeculture.xml:1645 msgid "CHAPTER TWO: \"Mere Copyists\"" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:1646 msgid "Daguerre, Louis" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1648 msgid "" "In 1839, Louis Daguerre invented the first practical technology for " "producing what we would call \"photographs.\" Appropriately enough, they " "were called \"daguerreotypes.\" The process was complicated and expensive, " "and the field was thus limited to professionals and a few zealous and " "wealthy amateurs. (There was even an American Daguerre Association that " "helped regulate the industry, as do all such associations, by keeping " "competition down so as to keep prices up.)" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1657 msgid "" "Yet despite high prices, the demand for daguerreotypes was strong. This " "pushed inventors to find simpler and cheaper ways to make \"automatic " "pictures.\" William Talbot soon discovered a process for making " "\"negatives.\" But because the negatives were glass, and had to be kept wet, " "the process still remained expensive and cumbersome. In the 1870s, dry " "plates were developed, making it easier to separate the taking of a picture " "from its developing. These were still plates of glass, and thus it was still " "not a process within reach of most amateurs." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:1668 msgid "Eastman, George" msgstr "" #. PAGE BREAK 45 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1671 msgid "" "The technological change that made mass photography possible didn't happen " "until 1888, and was the creation of a single man. George Eastman, himself an " "amateur photographer, was frustrated by the technology of photographs made " "with plates. In a flash of insight (so to speak), Eastman saw that if the " "film could be made to be flexible, it could be held on a single " "spindle. That roll could then be sent to a developer, driving the costs of " "photography down substantially. By lowering the costs, Eastman expected he " "could dramatically broaden the population of photographers." msgstr "" #. f1 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:1688 msgid "" "Reese V. Jenkins, Images and Enterprise (Baltimore: Johns Hopkins University " "Press, 1975), 112." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1683 msgid "" "Eastman developed flexible, emulsion-coated paper film and placed rolls of " "it in small, simple cameras: the Kodak. The device was marketed on the basis " "of its simplicity. \"You press the button and we do the rest.\"<placeholder " "type=\"footnote\" id=\"0\"/> As he described in The Kodak Primer:" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:1706 freeculture.xml:1729 msgid "Coe, Brian" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para> #: freeculture.xml:1704 msgid "" "Brian Coe, The Birth of Photography (New York: Taplinger Publishing, 1977), " "53. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:1693 msgid "" "The principle of the Kodak system is the separation of the work that any " "person whomsoever can do in making a photograph, from the work that only an " "expert can do. . . . We furnish anybody, man, woman or child, who has " "sufficient intelligence to point a box straight and press a button, with an " "instrument which altogether removes from the practice of photography the " "necessity for exceptional facilities or, in fact, any special knowledge of " "the art. It can be employed without preliminary study, without a darkroom " "and without chemicals.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. f3 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:1722 msgid "Jenkins, 177." msgstr "" #. f4 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:1726 msgid "Based on a chart in Jenkins, p. 178." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1711 msgid "" "For $25, anyone could make pictures. The camera came preloaded with film, " "and when it had been used, the camera was returned to an Eastman factory, " "where the film was developed. Over time, of course, the cost of the camera " "and the ease with which it could be used both improved. Roll film thus " "became the basis for the explosive growth of popular photography. Eastman's " "camera first went on sale in 1888; one year later, Kodak was printing more " "than six thousand negatives a day. From 1888 through 1909, while industrial " "production was rising by 4.7 percent, photographic equipment and material " "sales increased by percent.<placeholder type=\"footnote\" id=\"0\"/> Eastman " "Kodak's sales during the same period experienced an average annual increase " "of over 17 percent.<placeholder type=\"footnote\" id=\"1\"/>" msgstr "" #. f5 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:1744 msgid "Coe, 58." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1733 msgid "" "The real significance of Eastman's invention, however, was not economic. It " "was social. Professional photography gave individuals a glimpse of places " "they would never otherwise see. Amateur photography gave them the ability to " "record their own lives in a way they had never been able to do before. As " "author Brian Coe notes, \"For the first time the snapshot album provided the " "man on the street with a permanent record of his family and its " "activities. . . . For the first time in history there exists an authentic " "visual record of the appearance and activities of the common man made " "without [literary] interpretation or bias.\"<placeholder type=\"footnote\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1748 msgid "" "In this way, the Kodak camera and film were technologies of expression. The " "pencil or paintbrush was also a technology of expression, of course. But it " "took years of training before they could be deployed by amateurs in any " "useful or effective way. With the Kodak, expression was possible much sooner " "and more simply. The barrier to expression was lowered. Snobs would sneer at " "its \"quality\"; professionals would discount it as irrelevant. But watch a " "child study how best to frame a picture and you get a sense of the " "experience of creativity that the Kodak enabled. Democratic tools gave " "ordinary people a way to express themselves more easily than any tools could " "have before." msgstr "" #. f6 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:1770 msgid "" "For illustrative cases, see, for example, Pavesich v. N.E. Life Ins. Co., 50 " "S.E." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1761 msgid "" "What was required for this technology to flourish? Obviously, Eastman's " "genius was an important part. But also important was the legal environment " "within which Eastman's invention grew. For early in the history of " "photography, there was a series of judicial decisions that could well have " "changed the course of photography substantially. Courts were asked whether " "the photographer, amateur or professional, required permission before he " "could capture and print whatever image he wanted. Their answer was " "no.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. PAGE BREAK 47 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1774 msgid "" "The arguments in favor of requiring permission will sound surprisingly " "familiar. The photographer was \"taking\" something from the person or " "building whose photograph he shot—pirating something of value. Some " "even thought he was taking the target's soul. Just as Disney was not free to " "take the pencils that his animators used to draw Mickey, so, too, should " "these photographers not be free to take images that they thought valuable." msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary> #: freeculture.xml:1796 msgid "Warren, Samuel D." msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:1793 msgid "" "Samuel D. Warren and Louis D. Brandeis, \"The Right to Privacy,\" Harvard " "Law Review 4 (1890): 193. <placeholder type=\"indexterm\" id=\"0\"/> " "<placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1786 msgid "" "On the other side was an argument that should be familiar, as well. Sure, " "there may be something of value being used. But citizens should have the " "right to capture at least those images that stand in public view. (Louis " "Brandeis, who would become a Supreme Court Justice, thought the rule should " "be different for images from private spaces.<placeholder type=\"footnote\" " "id=\"0\"/>) It may be that this means that the photographer gets something " "for nothing. Just as Disney could take inspiration from Steamboat Bill, " "Jr. or the Brothers Grimm, the photographer should be free to capture an " "image without compensating the source." msgstr "" #. f8 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:1813 msgid "" "See Melville B. Nimmer, \"The Right of Publicity,\" Law and Contemporary " "Problems 19 (1954): 203; William L. Prosser, \"Privacy,\" California Law " "Review 48 (1960) 398–407; White v. Samsung Electronics America, Inc., " "971 F. 2d 1395 (9th Cir. 1992), cert. denied, 508 U.S. 951 (1993)." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1803 msgid "" "Fortunately for Mr. Eastman, and for photography in general, these early " "decisions went in favor of the pirates. In general, no permission would be " "required before an image could be captured and shared with others. Instead, " "permission was presumed. Freedom was the default. (The law would eventually " "craft an exception for famous people: commercial photographers who snap " "pictures of famous people for commercial purposes have more restrictions " "than the rest of us. But in the ordinary case, the image can be captured " "without clearing the rights to do the capturing.<placeholder " "type=\"footnote\" id=\"0\"/>)" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1821 msgid "" "We can only speculate about how photography would have developed had the law " "gone the other way. If the presumption had been against the photographer, " "then the photographer would have had to demonstrate permission. Perhaps " "Eastman Kodak would have had to demonstrate permission, too, before it " "developed the film upon which images were captured. After all, if permission " "were not granted, then Eastman Kodak would be benefiting from the \"theft\" " "committed by the photographer. Just as Napster benefited from the copyright " "infringements committed by Napster users, Kodak would be benefiting from the " "\"image-right\" infringement of its photographers. We could imagine the law " "then requiring that some form of permission be demonstrated before a company " "developed pictures. We could imagine a system developing to demonstrate that " "permission." msgstr "" #. PAGE BREAK 48 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1838 msgid "" "But though we could imagine this system of permission, it would be very hard " "to see how photography could have flourished as it did if the requirement " "for permission had been built into the rules that govern it. Photography " "would have existed. It would have grown in importance over " "time. Professionals would have continued to use the technology as they " "did—since professionals could have more easily borne the burdens of " "the permission system. But the spread of photography to ordinary people " "would not have occurred. Nothing like that growth would have been " "realized. And certainly, nothing like that growth in a democratic technology " "of expression would have been realized. If you drive through San " "Francisco's Presidio, you might see two gaudy yellow school buses painted " "over with colorful and striking images, and the logo \"Just Think!\" in " "place of the name of a school. But there's little that's \"just\" cerebral " "in the projects that these busses enable. These buses are filled with " "technologies that teach kids to tinker with film. Not the film of " "Eastman. Not even the film of your VCR. Rather the \"film\" of digital " "cameras. Just Think! is a project that enables kids to make films, as a way " "to understand and critique the filmed culture that they find all around " "them. Each year, these busses travel to more than thirty schools and enable " "three hundred to five hundred children to learn something about media by " "doing something with media. By doing, they think. By tinkering, they learn." msgstr "" #. f9 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:1870 msgid "" "H. Edward Goldberg, \"Essential Presentation Tools: Hardware and Software " "You Need to Create Digital Multimedia Presentations,\" cadalyst, February " "2002, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#7</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1864 msgid "" "These buses are not cheap, but the technology they carry is increasingly " "so. The cost of a high-quality digital video system has fallen " "dramatically. As one analyst puts it, \"Five years ago, a good real-time " "digital video editing system cost $25,000. Today you can get professional " "quality for $595.\"<placeholder type=\"footnote\" id=\"0\"/> These buses are " "filled with technology that would have cost hundreds of thousands just ten " "years ago. And it is now feasible to imagine not just buses like this, but " "classrooms across the country where kids are learning more and more of " "something teachers call \"media literacy.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:1887 msgid "Yanofsky, Dave" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1882 msgid "" "\"Media literacy,\" as Dave Yanofsky, the executive director of Just Think!, " "puts it, \"is the ability . . . to understand, analyze, and deconstruct " "media images. Its aim is to make [kids] literate about the way media works, " "the way it's constructed, the way it's delivered, and the way people access " "it.\" <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1890 msgid "" "This may seem like an odd way to think about \"literacy.\" For most people, " "literacy is about reading and writing. Faulkner and Hemingway and noticing " "split infinitives are the things that \"literate\" people know about." msgstr "" #. f10 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:1900 msgid "" "Judith Van Evra, Television and Child Development (Hillsdale, N.J.: Lawrence " "Erlbaum Associates, 1990); \"Findings on Family and TV Study,\" Denver Post, " "25 May 1997, B6." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1896 msgid "" "Maybe. But in a world where children see on average 390 hours of television " "commercials per year, or between 20,000 and 45,000 commercials " "generally,<placeholder type=\"footnote\" id=\"0\"/> it is increasingly " "important to understand the \"grammar\" of media. For just as there is a " "grammar for the written word, so, too, is there one for media. And just as " "kids learn how to write by writing lots of terrible prose, kids learn how to " "write media by constructing lots of (at least at first) terrible media." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1911 msgid "" "A growing field of academics and activists sees this form of literacy as " "crucial to the next generation of culture. For though anyone who has written " "understands how difficult writing is—how difficult it is to sequence " "the story, to keep a reader's attention, to craft language to be " "understandable—few of us have any real sense of how difficult media " "is. Or more fundamentally, few of us have a sense of how media works, how it " "holds an audience or leads it through a story, how it triggers emotion or " "builds suspense." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1921 msgid "" "It took filmmaking a generation before it could do these things well. But " "even then, the knowledge was in the filming, not in writing about the " "film. The skill came from experiencing the making of a film, not from " "reading a book about it. One learns to write by writing and then reflecting " "upon what one has written. One learns to write with images by making them " "and then reflecting upon what one has created." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:1928 msgid "Crichton, Michael" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:1942 freeculture.xml:2002 freeculture.xml:2009 freeculture.xml:2444 msgid "Barish, Stephanie" msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary> #: freeculture.xml:1943 msgid "Daley, Elizabeth" msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:1940 msgid "" "Interview with Elizabeth Daley and Stephanie Barish, 13 December 2002. " "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/>" msgstr "" #. f12 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:1954 msgid "" "See Scott Steinberg, \"Crichton Gets Medieval on PCs,\" E!online, 4 November " "2000, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#8</ulink>; \"Timeline,\" 22 November 2000, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #9</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1930 msgid "" "This grammar has changed as media has changed. When it was just film, as " "Elizabeth Daley, executive director of the University of Southern " "California's Annenberg Center for Communication and dean of the USC School " "of Cinema-Television, explained to me, the grammar was about \"the placement " "of objects, color, . . . rhythm, pacing, and texture.\"<placeholder " "type=\"footnote\" id=\"0\"/> But as computers open up an interactive space " "where a story is \"played\" as well as experienced, that grammar " "changes. The simple control of narrative is lost, and so other techniques " "are necessary. Author Michael Crichton had mastered the narrative of science " "fiction. But when he tried to design a computer game based on one of his " "works, it was a new craft he had to learn. How to lead people through a game " "without their feeling they have been led was not obvious, even to a wildly " "successful author.<placeholder type=\"footnote\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:1961 msgid "computer games" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1963 msgid "" "This skill is precisely the craft a filmmaker learns. As Daley describes, " "\"people are very surprised about how they are led through a film. [I]t is " "perfectly constructed to keep you from seeing it, so you have no idea. If a " "filmmaker succeeds you do not know how you were led.\" If you know you were " "led through a film, the film has failed." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1970 msgid "" "Yet the push for an expanded literacy—one that goes beyond text to " "include audio and visual elements—is not about making better film " "directors. The aim is not to improve the profession of filmmaking at all. " "Instead, as Daley explained," msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:1977 msgid "" "From my perspective, probably the most important digital divide is not " "access to a box. It's the ability to be empowered with the language that " "that box works in. Otherwise only a very few people can write with this " "language, and all the rest of us are reduced to being read-only." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1985 msgid "" "\"Read-only.\" Passive recipients of culture produced elsewhere. Couch " "potatoes. Consumers. This is the world of media from the twentieth century." msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:2001 msgid "Interview with Daley and Barish. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. f31 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:2006 freeculture.xml:3701 freeculture.xml:4775 freeculture.xml:7929 msgid "Ibid." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:1990 msgid "" "The twenty-first century could be different. This is the crucial point: It " "could be both read and write. Or at least reading and better understanding " "the craft of writing. Or best, reading and understanding the tools that " "enable the writing to lead or mislead. The aim of any literacy, and this " "literacy in particular, is to \"empower people to choose the appropriate " "language for what they need to create or express.\"<placeholder " "type=\"footnote\" id=\"0\"/> It is to enable students \"to communicate in " "the language of the twenty-first century.\"<placeholder type=\"footnote\" " "id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2011 msgid "" "As with any language, this language comes more easily to some than to " "others. It doesn't necessarily come more easily to those who excel in " "written language. Daley and Stephanie Barish, director of the Institute for " "Multimedia Literacy at the Annenberg Center, describe one particularly " "poignant example of a project they ran in a high school. The high school " "was a very poor inner-city Los Angeles school. In all the traditional " "measures of success, this school was a failure. But Daley and Barish ran a " "program that gave kids an opportunity to use film to express meaning about " "something the students know something about—gun violence." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2023 msgid "" "The class was held on Friday afternoons, and it created a relatively new " "problem for the school. While the challenge in most classes was getting the " "kids to come, the challenge in this class was keeping them away. The \"kids " "were showing up at 6 A.M. and leaving at 5 at night,\" said Barish. They " "were working harder than in any other class to do what education should be " "about—learning how to express themselves." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2031 msgid "" "Using whatever \"free web stuff they could find,\" and relatively simple " "tools to enable the kids to mix \"image, sound, and text,\" Barish said this " "class produced a series of projects that showed something about gun violence " "that few would otherwise understand. This was an issue close to the lives of " "these students. The project \"gave them a tool and empowered them to be able " "to both understand it and talk about it,\" Barish explained. That tool " "succeeded in creating expression—far more successfully and powerfully " "than could have been created using only text. \"If you had said to these " "students, `you have to do it in text,' they would've just thrown their hands " "up and gone and done something else,\" Barish described, in part, no doubt, " "because expressing themselves in text is not something these students can do " "well. Yet neither is text a form in which these ideas can be expressed " "well. The power of this message depended upon its connection to this form of " "expression." msgstr "" #. PAGE BREAK 52 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2050 msgid "" "\"But isn't education about teaching kids to write?\" I asked. In part, of " "course, it is. But why are we teaching kids to write? Education, Daley " "explained, is about giving students a way of \"constructing meaning.\" To " "say that that means just writing is like saying teaching writing is only " "about teaching kids how to spell. Text is one part—and increasingly, " "not the most powerful part—of constructing meaning. As Daley explained " "in the most moving part of our interview," msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:2061 msgid "" "What you want is to give these students ways of constructing meaning. If all " "you give them is text, they're not going to do it. Because they can't. You " "know, you've got Johnny who can look at a video, he can play a video game, " "he can do graffiti all over your walls, he can take your car apart, and he " "can do all sorts of other things. He just can't read your text. So Johnny " "comes to school and you say, \"Johnny, you're illiterate. Nothing you can do " "matters.\" Well, Johnny then has two choices: He can dismiss you or he [can] " "dismiss himself. If his ego is healthy at all, he's going to dismiss " "you. [But i]nstead, if you say, \"Well, with all these things that you can " "do, let's talk about this issue. Play for me music that you think reflects " "that, or show me images that you think reflect that, or draw for me " "something that reflects that.\" Not by giving a kid a video camera and " ". . . saying, \"Let's go have fun with the video camera and make a little " "movie.\" But instead, really help you take these elements that you " "understand, that are your language, and construct meaning about the " "topic. . . ." msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:2080 msgid "" "That empowers enormously. And then what happens, of course, is eventually, " "as it has happened in all these classes, they bump up against the fact, \"I " "need to explain this and I really need to write something.\" And as one of " "the teachers told Stephanie, they would rewrite a paragraph 5, 6, 7, 8 " "times, till they got it right." msgstr "" #. PAGE BREAK 53 #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:2087 msgid "" "Because they needed to. There was a reason for doing it. They needed to say " "something, as opposed to just jumping through your hoops. They actually " "needed to use a language that they didn't speak very well. But they had come " "to understand that they had a lot of power with this language.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2096 msgid "" "When two planes crashed into the World Trade Center, another into the " "Pentagon, and a fourth into a Pennsylvania field, all media around the world " "shifted to this news. Every moment of just about every day for that week, " "and for weeks after, television in particular, and media generally, retold " "the story of the events we had just witnessed. The telling was a retelling, " "because we had seen the events that were described. The genius of this awful " "act of terrorism was that the delayed second attack was perfectly timed to " "assure that the whole world would be watching." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2107 msgid "" "These retellings had an increasingly familiar feel. There was music scored " "for the intermissions, and fancy graphics that flashed across the " "screen. There was a formula to interviews. There was \"balance,\" and " "seriousness. This was news choreographed in the way we have increasingly " "come to expect it, \"news as entertainment,\" even if the entertainment is " "tragedy." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:2114 freeculture.xml:7867 msgid "ABC" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:2115 msgid "CBS" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2117 msgid "" "But in addition to this produced news about the \"tragedy of September 11,\" " "those of us tied to the Internet came to see a very different production as " "well. The Internet was filled with accounts of the same events. Yet these " "Internet accounts had a very different flavor. Some people constructed photo " "pages that captured images from around the world and presented them as slide " "shows with text. Some offered open letters. There were sound " "recordings. There was anger and frustration. There were attempts to provide " "context. There was, in short, an extraordinary worldwide barn raising, in " "the sense Mike Godwin uses the term in his book Cyber Rights, around a news " "event that had captured the attention of the world. There was ABC and CBS, " "but there was also the Internet." msgstr "" #. PAGE BREAK 54 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2131 msgid "" "I don't mean simply to praise the Internet—though I do think the " "people who supported this form of speech should be praised. I mean instead " "to point to a significance in this form of speech. For like a Kodak, the " "Internet enables people to capture images. And like in a movie by a student " "on the \"Just Think!\" bus, the visual images could be mixed with sound or " "text." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2141 msgid "" "But unlike any technology for simply capturing images, the Internet allows " "these creations to be shared with an extraordinary number of people, " "practically instantaneously. This is something new in our " "tradition—not just that culture can be captured mechanically, and " "obviously not just that events are commented upon critically, but that this " "mix of captured images, sound, and commentary can be widely spread " "practically instantaneously." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2150 msgid "" "September 11 was not an aberration. It was a beginning. Around the same " "time, a form of communication that has grown dramatically was just beginning " "to come into public consciousness: the Web-log, or blog. The blog is a kind " "of public diary, and within some cultures, such as in Japan, it functions " "very much like a diary. In those cultures, it records private facts in a " "public way—it's a kind of electronic Jerry Springer, available " "anywhere in the world." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2159 msgid "" "But in the United States, blogs have taken on a very different character. " "There are some who use the space simply to talk about their private " "life. But there are many who use the space to engage in public " "discourse. Discussing matters of public import, criticizing others who are " "mistaken in their views, criticizing politicians about the decisions they " "make, offering solutions to problems we all see: blogs create the sense of a " "virtual public meeting, but one in which we don't all hope to be there at " "the same time and in which conversations are not necessarily linked. The " "best of the blog entries are relatively short; they point directly to words " "used by others, criticizing with or adding to them. They are arguably the " "most important form of unchoreographed public discourse that we have." msgstr "" #. PAGE BREAK 55 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2173 msgid "" "That's a strong statement. Yet it says as much about our democracy as it " "does about blogs. This is the part of America that is most difficult for " "those of us who love America to accept: Our democracy has atrophied. Of " "course we have elections, and most of the time the courts allow those " "elections to count. A relatively small number of people vote in those " "elections. The cycle of these elections has become totally professionalized " "and routinized. Most of us think this is democracy." msgstr "" #. f15 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:2199 msgid "" "See, for example, Alexis de Tocqueville, Democracy in America, bk. 1, " "trans. Henry Reeve (New York: Bantam Books, 2000), ch. 16." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2184 msgid "" "But democracy has never just been about elections. Democracy means rule by " "the people, but rule means something more than mere elections. In our " "tradition, it also means control through reasoned discourse. This was the " "idea that captured the imagination of Alexis de Tocqueville, the " "nineteenth-century French lawyer who wrote the most important account of " "early \"Democracy in America.\" It wasn't popular elections that fascinated " "him—it was the jury, an institution that gave ordinary people the " "right to choose life or death for other citizens. And most fascinating for " "him was that the jury didn't just vote about the outcome they would " "impose. They deliberated. Members argued about the \"right\" result; they " "tried to persuade each other of the \"right\" result, and in criminal cases " "at least, they had to agree upon a unanimous result for the process to come " "to an end.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. f16 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:2208 msgid "" "Bruce Ackerman and James Fishkin, \"Deliberation Day,\" Journal of Political " "Philosophy 10 (2) (2002): 129." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2204 msgid "" "Yet even this institution flags in American life today. And in its place, " "there is no systematic effort to enable citizen deliberation. Some are " "pushing to create just such an institution.<placeholder type=\"footnote\" " "id=\"0\"/> And in some towns in New England, something close to deliberation " "remains. But for most of us for most of the time, there is no time or place " "for \"democratic deliberation\" to occur." msgstr "" #. f17 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:2223 msgid "" "Cass Sunstein, Republic.com (Princeton: Princeton University Press, 2001), " "65–80, 175, 182, 183, 192." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2216 msgid "" "More bizarrely, there is generally not even permission for it to occur. We, " "the most powerful democracy in the world, have developed a strong norm " "against talking about politics. It's fine to talk about politics with people " "you agree with. But it is rude to argue about politics with people you " "disagree with. Political discourse becomes isolated, and isolated discourse " "becomes more extreme.<placeholder type=\"footnote\" id=\"0\"/> We say what " "our friends want to hear, and hear very little beyond what our friends say." msgstr "" #. PAGE BREAK 56 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2229 msgid "" "Enter the blog. The blog's very architecture solves one part of this " "problem. People post when they want to post, and people read when they want " "to read. The most difficult time is synchronous time. Technologies that " "enable asynchronous communication, such as e-mail, increase the opportunity " "for communication. Blogs allow for public discourse without the public ever " "needing to gather in a single public place." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2240 msgid "" "But beyond architecture, blogs also have solved the problem of " "norms. There's no norm (yet) in blog space not to talk about politics. " "Indeed, the space is filled with political speech, on both the right and the " "left. Some of the most popular sites are conservative or libertarian, but " "there are many of all political stripes. And even blogs that are not " "political cover political issues when the occasion merits." msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:2252 msgid "Dean, Howard" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2248 msgid "" "The significance of these blogs is tiny now, though not so tiny. The name " "Howard Dean may well have faded from the 2004 presidential race but for " "blogs. Yet even if the number of readers is small, the reading is having an " "effect. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. f18 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:2266 msgid "" "Noah Shachtman, \"With Incessant Postings, a Pundit Stirs the Pot,\" New " "York Times, 16 January 2003, G5." msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:2269 msgid "Lott, Trent" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2255 msgid "" "One direct effect is on stories that had a different life cycle in the " "mainstream media. The Trent Lott affair is an example. When Lott " "\"misspoke\" at a party for Senator Strom Thurmond, essentially praising " "Thurmond's segregationist policies, he calculated correctly that this story " "would disappear from the mainstream press within forty-eight hours. It " "did. But he didn't calculate its life cycle in blog space. The bloggers kept " "researching the story. Over time, more and more instances of the same " "\"misspeaking\" emerged. Finally, the story broke back into the mainstream " "press. In the end, Lott was forced to resign as senate majority " "leader.<placeholder type=\"footnote\" id=\"0\"/> <placeholder " "type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2272 msgid "" "This different cycle is possible because the same commercial pressures don't " "exist with blogs as with other ventures. Television and newspapers are " "commercial entities. They must work to keep attention. If they lose " "readers, they lose revenue. Like sharks, they must move on." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2279 msgid "" "But bloggers don't have a similar constraint. They can obsess, they can " "focus, they can get serious. If a particular blogger writes a particularly " "interesting story, more and more people link to that story. And as the " "number of links to a particular story increases, it rises in the ranks of " "stories. People read what is popular; what is popular has been selected by a " "very democratic process of peer-generated rankings." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:2288 msgid "Winer, Dave" msgstr "" #. PAGE BREAK 57 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2291 msgid "" "There's a second way, as well, in which blogs have a different cycle from " "the mainstream press. As Dave Winer, one of the fathers of this movement and " "a software author for many decades, told me, another difference is the " "absence of a financial \"conflict of interest.\" \"I think you have to take " "the conflict of interest\" out of journalism, Winer told me. \"An amateur " "journalist simply doesn't have a conflict of interest, or the conflict of " "interest is so easily disclosed that you know you can sort of get it out of " "the way.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary> #: freeculture.xml:2301 freeculture.xml:2354 msgid "CNN" msgstr "" #. f19 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:2309 msgid "Telephone interview with David Winer, 16 April 2003." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2303 msgid "" "These conflicts become more important as media becomes more concentrated " "(more on this below). A concentrated media can hide more from the public " "than an unconcentrated media can—as CNN admitted it did after the Iraq " "war because it was afraid of the consequences to its own " "employees.<placeholder type=\"footnote\" id=\"0\"/> It also needs to sustain " "a more coherent account. (In the middle of the Iraq war, I read a post on " "the Internet from someone who was at that time listening to a satellite " "uplink with a reporter in Iraq. The New York headquarters was telling the " "reporter over and over that her account of the war was too bleak: She needed " "to offer a more optimistic story. When she told New York that wasn't " "warranted, they told her that they were writing \"the story.\")" msgstr "" #. f20 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:2327 msgid "" "John Schwartz, \"Loss of the Shuttle: The Internet; A Wealth of Information " "Online,\" New York Times, 2 February 2003, A28; Staci D. Kramer, \"Shuttle " "Disaster Coverage Mixed, but Strong Overall,\" Online Journalism Review, 2 " "February 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #10</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2319 msgid "" "Blog space gives amateurs a way to enter the debate—\"amateur\" not in " "the sense of inexperienced, but in the sense of an Olympic athlete, meaning " "not paid by anyone to give their reports. It allows for a much broader range " "of input into a story, as reporting on the Columbia disaster revealed, when " "hundreds from across the southwest United States turned to the Internet to " "retell what they had seen.<placeholder type=\"footnote\" id=\"0\"/> And it " "drives readers to read across the range of accounts and \"triangulate,\" as " "Winer puts it, the truth. Blogs, Winer says, are \"communicating directly " "with our constituency, and the middle man is out of it\"—with all the " "benefits, and costs, that might entail." msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:2346 msgid "" "See Michael Falcone, \"Does an Editor's Pencil Ruin a Web Log?\" New York " "Times, 29 September 2003, C4. (\"Not all news organizations have been as " "accepting of employees who blog. Kevin Sites, a CNN correspondent in Iraq " "who started a blog about his reporting of the war on March 9, stopped " "posting 12 days later at his bosses' request. Last year Steve Olafson, a " "Houston Chronicle reporter, was fired for keeping a personal Web log, " "published under a pseudonym, that dealt with some of the issues and people " "he was covering.\") <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. PAGE BREAK 58 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2339 msgid "" "Winer is optimistic about the future of journalism infected with " "blogs. \"It's going to become an essential skill,\" Winer predicts, for " "public figures and increasingly for private figures as well. It's not clear " "that \"journalism\" is happy about this—some journalists have been " "told to curtail their blogging.<placeholder type=\"footnote\" id=\"0\"/> But " "it is clear that we are still in transition. \"A lot of what we are doing " "now is warm-up exercises,\" Winer told me. There is a lot that must mature " "before this space has its mature effect. And as the inclusion of content in " "this space is the least infringing use of the Internet (meaning infringing " "on copyright), Winer said, \"we will be the last thing that gets shut " "down.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2366 msgid "" "This speech affects democracy. Winer thinks that happens because \"you don't " "have to work for somebody who controls, [for] a gatekeeper.\" That is " "true. But it affects democracy in another way as well. As more and more " "citizens express what they think, and defend it in writing, that will change " "the way people understand public issues. It is easy to be wrong and " "misguided in your head. It is harder when the product of your mind can be " "criticized by others. Of course, it is a rare human who admits that he has " "been persuaded that he is wrong. But it is even rarer for a human to ignore " "when he has been proven wrong. The writing of ideas, arguments, and " "criticism improves democracy. Today there are probably a couple of million " "blogs where such writing happens. When there are ten million, there will be " "something extraordinary to report." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:2382 msgid "Brown, John Seely" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2385 msgid "" "John Seely Brown is the chief scientist of the Xerox Corporation. His work, " "as his Web site describes it, is \"human learning and . . . the creation of " "knowledge ecologies for creating . . . innovation.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2390 msgid "" "Brown thus looks at these technologies of digital creativity a bit " "differently from the perspectives I've sketched so far. I'm sure he would be " "excited about any technology that might improve democracy. But his real " "excitement comes from how these technologies affect learning." msgstr "" #. PAGE BREAK 59 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2397 msgid "" "As Brown believes, we learn by tinkering. When \"a lot of us grew up,\" he " "explains, that tinkering was done \"on motorcycle engines, lawnmower " "engines, automobiles, radios, and so on.\" But digital technologies enable a " "different kind of tinkering—with abstract ideas though in concrete " "form. The kids at Just Think! not only think about how a commercial portrays " "a politician; using digital technology, they can take the commercial apart " "and manipulate it, tinker with it to see how it does what it does. Digital " "technologies launch a kind of bricolage, or \"free collage,\" as Brown calls " "it. Many get to add to or transform the tinkering of many others." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2410 msgid "" "The best large-scale example of this kind of tinkering so far is free " "software or open-source software (FS/OSS). FS/OSS is software whose source " "code is shared. Anyone can download the technology that makes a FS/OSS " "program run. And anyone eager to learn how a particular bit of FS/OSS " "technology works can tinker with the code." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2417 msgid "" "This opportunity creates a \"completely new kind of learning platform,\" as " "Brown describes. \"As soon as you start doing that, you . . . unleash a " "free collage on the community, so that other people can start looking at " "your code, tinkering with it, trying it out, seeing if they can improve " "it.\" Each effort is a kind of apprenticeship. \"Open source becomes a major " "apprenticeship platform.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2425 msgid "" "In this process, \"the concrete things you tinker with are abstract. They " "are code.\" Kids are \"shifting to the ability to tinker in the abstract, " "and this tinkering is no longer an isolated activity that you're doing in " "your garage. You are tinkering with a community platform. . . . You are " "tinkering with other people's stuff. The more you tinker the more you " "improve.\" The more you improve, the more you learn." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2434 msgid "" "This same thing happens with content, too. And it happens in the same " "collaborative way when that content is part of the Web. As Brown puts it, " "\"the Web [is] the first medium that truly honors multiple forms of " "intelligence.\" Earlier technologies, such as the typewriter or word " "processors, helped amplify text. But the Web amplifies much more than " "text. \"The Web . . . says if you are musical, if you are artistic, if you " "are visual, if you are interested in film . . . [then] there is a lot you " "can start to do on this medium. [It] can now amplify and honor these " "multiple forms of intelligence.\"" msgstr "" #. PAGE BREAK 60 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2446 msgid "" "Brown is talking about what Elizabeth Daley, Stephanie Barish, and Just " "Think! teach: that this tinkering with culture teaches as well as " "creates. It develops talents differently, and it builds a different kind of " "recognition." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2454 msgid "" "Yet the freedom to tinker with these objects is not guaranteed. Indeed, as " "we'll see through the course of this book, that freedom is increasingly " "highly contested. While there's no doubt that your father had the right to " "tinker with the car engine, there's great doubt that your child will have " "the right to tinker with the images she finds all around. The law and, " "increasingly, technology interfere with a freedom that technology, and " "curiosity, would otherwise ensure." msgstr "" #. f22 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:2469 msgid "" "See, for example, Edward Felten and Andrew Appel, \"Technological Access " "Control Interferes with Noninfringing Scholarship,\" Communications of the " "Association for Computer Machinery 43 (2000): 9." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2463 msgid "" "These restrictions have become the focus of researchers and scholars. " "Professor Ed Felten of Princeton (whom we'll see more of in chapter 10) has " "developed a powerful argument in favor of the \"right to tinker\" as it " "applies to computer science and to knowledge in general.<placeholder " "type=\"footnote\" id=\"0\"/> But Brown's concern is earlier, or younger, or " "more fundamental. It is about the learning that kids can do, or can't do, " "because of the law." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2477 msgid "" "\"This is where education in the twenty-first century is going,\" Brown " "explains. We need to \"understand how kids who grow up digital think and " "want to learn.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2482 msgid "" "\"Yet,\" as Brown continued, and as the balance of this book will evince, " "\"we are building a legal system that completely suppresses the natural " "tendencies of today's digital kids. . . . We're building an architecture " "that unleashes 60 percent of the brain [and] a legal system that closes down " "that part of the brain.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2490 msgid "" "We're building a technology that takes the magic of Kodak, mixes moving " "images and sound, and adds a space for commentary and an opportunity to " "spread that creativity everywhere. But we're building the law to close down " "that technology." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2496 msgid "" "\"No way to run a culture,\" as Brewster Kahle, whom we'll meet in chapter " "9, quipped to me in a rare moment of despondence." msgstr "" #. type: Content of: <book><chapter><sect1><title> #: freeculture.xml:2502 msgid "CHAPTER THREE: Catalogs" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2504 msgid "" "In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as a " "freshman at Rensselaer Polytechnic Institute, in Troy, New York. His major " "at RPI was information technology. Though he is not a programmer, in October " "Jesse decided to begin to tinker with search engine technology that was " "available on the RPI network." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2511 msgid "" "RPI is one of America's foremost technological research institutions. It " "offers degrees in fields ranging from architecture and engineering to " "information sciences. More than 65 percent of its five thousand " "undergraduates finished in the top 10 percent of their high school " "class. The school is thus a perfect mix of talent and experience to imagine " "and then build, a generation for the network age." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2519 msgid "" "RPI's computer network links students, faculty, and administration to one " "another. It also links RPI to the Internet. Not everything available on the " "RPI network is available on the Internet. But the network is designed to " "enable students to get access to the Internet, as well as more intimate " "access to other members of the RPI community." msgstr "" #. PAGE BREAK 62 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2526 msgid "" "Search engines are a measure of a network's intimacy. Google brought the " "Internet much closer to all of us by fantastically improving the quality of " "search on the network. Specialty search engines can do this even better. The " "idea of \"intranet\" search engines, search engines that search within the " "network of a particular institution, is to provide users of that institution " "with better access to material from that institution. Businesses do this " "all the time, enabling employees to have access to material that people " "outside the business can't get. Universities do it as well." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2538 msgid "" "These engines are enabled by the network technology itself. Microsoft, for " "example, has a network file system that makes it very easy for search " "engines tuned to that network to query the system for information about the " "publicly (within that network) available content. Jesse's search engine was " "built to take advantage of this technology. It used Microsoft's network file " "system to build an index of all the files available within the RPI network." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2547 msgid "" "Jesse's wasn't the first search engine built for the RPI network. Indeed, " "his engine was a simple modification of engines that others had built. His " "single most important improvement over those engines was to fix a bug within " "the Microsoft file-sharing system that could cause a user's computer to " "crash. With the engines that existed before, if you tried to access a file " "through a Windows browser that was on a computer that was off-line, your " "computer could crash. Jesse modified the system a bit to fix that problem, " "by adding a button that a user could click to see if the machine holding the " "file was still on-line." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2559 msgid "" "Jesse's engine went on-line in late October. Over the following six months, " "he continued to tweak it to improve its functionality. By March, the system " "was functioning quite well. Jesse had more than one million files in his " "directory, including every type of content that might be on users' " "computers." msgstr "" #. PAGE BREAK 63 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2566 msgid "" "Thus the index his search engine produced included pictures, which students " "could use to put on their own Web sites; copies of notes or research; copies " "of information pamphlets; movie clips that students might have created; " "university brochures—basically anything that users of the RPI network " "made available in a public folder of their computer." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2575 msgid "" "But the index also included music files. In fact, one quarter of the files " "that Jesse's search engine listed were music files. But that means, of " "course, that three quarters were not, and—so that this point is " "absolutely clear—Jesse did nothing to induce people to put music files " "in their public folders. He did nothing to target the search engine to these " "files. He was a kid tinkering with a Google-like technology at a university " "where he was studying information science, and hence, tinkering was the " "aim. Unlike Google, or Microsoft, for that matter, he made no money from " "this tinkering; he was not connected to any business that would make any " "money from this experiment. He was a kid tinkering with technology in an " "environment where tinkering with technology was precisely what he was " "supposed to do." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2590 msgid "" "On April 3, 2003, Jesse was contacted by the dean of students at RPI. The " "dean informed Jesse that the Recording Industry Association of America, the " "RIAA, would be filing a lawsuit against him and three other students whom he " "didn't even know, two of them at other universities. A few hours later, " "Jesse was served with papers from the suit. As he read these papers and " "watched the news reports about them, he was increasingly astonished." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2599 msgid "" "\"It was absurd,\" he told me. \"I don't think I did anything wrong. . . . " "I don't think there's anything wrong with the search engine that I ran or " ". . . what I had done to it. I mean, I hadn't modified it in any way that " "promoted or enhanced the work of pirates. I just modified the search engine " "in a way that would make it easier to use\"—again, a search engine, " "which Jesse had not himself built, using the Windows filesharing system, " "which Jesse had not himself built, to enable members of the RPI community to " "get access to content, which Jesse had not himself created or posted, and " "the vast majority of which had nothing to do with music." msgstr "" #. PAGE BREAK 64 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2611 msgid "" "But the RIAA branded Jesse a pirate. They claimed he operated a network and " "had therefore \"willfully\" violated copyright laws. They demanded that he " "pay them the damages for his wrong. For cases of \"willful infringement,\" " "the Copyright Act specifies something lawyers call \"statutory damages.\" " "These damages permit a copyright owner to claim $150,000 per " "infringement. As the RIAA alleged more than one hundred specific copyright " "infringements, they therefore demanded that Jesse pay them at least " "$15,000,000." msgstr "" #. f1 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:2631 msgid "" "Tim Goral, \"Recording Industry Goes After Campus P-2-P Networks: Suit " "Alleges $97.8 Billion in Damages,\" Professional Media Group LCC 6 (2003): " "5, available at 2003 WL 55179443." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2622 msgid "" "Similar lawsuits were brought against three other students: one other " "student at RPI, one at Michigan Technical University, and one at " "Princeton. Their situations were similar to Jesse's. Though each case was " "different in detail, the bottom line in each was exactly the same: huge " "demands for \"damages\" that the RIAA claimed it was entitled to. If you " "added up the claims, these four lawsuits were asking courts in the United " "States to award the plaintiffs close to $100 billion—six times the " "total profit of the film industry in 2001.<placeholder type=\"footnote\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2637 msgid "" "Jesse called his parents. They were supportive but a bit frightened. An " "uncle was a lawyer. He began negotiations with the RIAA. They demanded to " "know how much money Jesse had. Jesse had saved $12,000 from summer jobs and " "other employment. They demanded $12,000 to dismiss the case." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2644 msgid "" "The RIAA wanted Jesse to admit to doing something wrong. He refused. They " "wanted him to agree to an injunction that would essentially make it " "impossible for him to work in many fields of technology for the rest of his " "life. He refused. They made him understand that this process of being sued " "was not going to be pleasant. (As Jesse's father recounted to me, the chief " "lawyer on the case, Matt Oppenheimer, told Jesse, \"You don't want to pay " "another visit to a dentist like me.\") And throughout, the RIAA insisted it " "would not settle the case until it took every penny Jesse had saved." msgstr "" #. PAGE BREAK 65 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2655 msgid "" "Jesse's family was outraged at these claims. They wanted to fight. But " "Jesse's uncle worked to educate the family about the nature of the American " "legal system. Jesse could fight the RIAA. He might even win. But the cost of " "fighting a lawsuit like this, Jesse was told, would be at least $250,000. If " "he won, he would not recover that money. If he won, he would have a piece of " "paper saying he had won, and a piece of paper saying he and his family were " "bankrupt." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2665 msgid "" "So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or " "$12,000 and a settlement." msgstr "" #. f2 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:2677 msgid "" "Occupational Employment Survey, U.S. Dept. of Labor (2001) " "(27–2042—Musicians and Singers). See also National Endowment for " "the Arts, More Than One in a Blue Moon (2000)." msgstr "" #. f3 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:2685 msgid "" "Douglas Lichtman makes a related point in \"KaZaA and Punishment,\" Wall " "Street Journal, 10 September 2003, A24." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2669 msgid "" "The recording industry insists this is a matter of law and morality. Let's " "put the law aside for a moment and think about the morality. Where is the " "morality in a lawsuit like this? What is the virtue in scapegoatism? The " "RIAA is an extraordinarily powerful lobby. The president of the RIAA is " "reported to make more than $1 million a year. Artists, on the other hand, " "are not well paid. The average recording artist makes $45,900.<placeholder " "type=\"footnote\" id=\"0\"/> There are plenty of ways for the RIAA to affect " "and direct policy. So where is the morality in taking money from a student " "for running a search engine?<placeholder type=\"footnote\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2690 msgid "" "On June 23, Jesse wired his savings to the lawyer working for the RIAA. The " "case against him was then dismissed. And with this, this kid who had " "tinkered a computer into a $15 million lawsuit became an activist:" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:2697 msgid "" "I was definitely not an activist [before]. I never really meant to be an " "activist. . . . [But] I've been pushed into this. In no way did I ever " "foresee anything like this, but I think it's just completely absurd what the " "RIAA has done." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2704 msgid "" "Jesse's parents betray a certain pride in their reluctant activist. As his " "father told me, Jesse \"considers himself very conservative, and so do " "I. . . . He's not a tree hugger. . . . I think it's bizarre that they would " "pick on him. But he wants to let people know that they're sending the wrong " "message. And he wants to correct the record.\"" msgstr "" #. type: Content of: <book><chapter><sect1><title> #: freeculture.xml:2713 msgid "CHAPTER FOUR: \"Pirates\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:2715 msgid "" "If \"piracy\" means using the creative property of others without their " "permission—if \"if value, then right\" is true—then the history " "of the content industry is a history of piracy. Every important sector of " "\"big media\" today—film, records, radio, and cable TV—was born " "of a kind of piracy so defined. The consistent story is how last " "generation's pirates join this generation's country club—until now." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:2723 msgid "Film" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:2727 msgid "" "I am grateful to Peter DiMauro for pointing me to this extraordinary " "history. See also Siva Vaidhyanathan, Copyrights and Copywrongs, " "87–93, which details Edison's \"adventures\" with copyright and " "patent. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. PAGE BREAK 67 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:2725 msgid "" "The film industry of Hollywood was built by fleeing pirates.<placeholder " "type=\"footnote\" id=\"0\"/> Creators and directors migrated from the East " "Coast to California in the early twentieth century in part to escape " "controls that patents granted the inventor of filmmaking, Thomas " "Edison. These controls were exercised through a monopoly \"trust,\" the " "Motion Pictures Patents Company, and were based on Thomas Edison's creative " "property—patents. Edison formed the MPPC to exercise the rights this " "creative property gave him, and the MPPC was serious about the control it " "demanded." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:2743 msgid "As one commentator tells one part of the story," msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:2747 msgid "" "A January 1909 deadline was set for all companies to comply with the " "license. By February, unlicensed outlaws, who referred to themselves as " "independents protested the trust and carried on business without submitting " "to the Edison monopoly. In the summer of 1909 the independent movement was " "in full-swing, with producers and theater owners using illegal equipment and " "imported film stock to create their own underground market." msgstr "" #. f2 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> #: freeculture.xml:2767 msgid "" "J. A. Aberdeen, Hollywood Renegades: The Society of Independent Motion " "Picture Producers (Cobblestone Entertainment, 2000) and expanded texts " "posted at \"The Edison Movie Monopoly: The Motion Picture Patents Company " "vs. the Independent Outlaws,\" available at <ulink " "url=\"http://free-culture.cc/notes/\">link #11</ulink>. For a discussion of " "the economic motive behind both these limits and the limits imposed by " "Victor on phonographs, see Randal C. Picker, \"From Edison to the Broadcast " "Flag: Mechanisms of Consent and Refusal and the Propertization of " "Copyright\" (September 2002), University of Chicago Law School, James " "M. Olin Program in Law and Economics, Working Paper No. 159." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><indexterm><primary> #: freeculture.xml:2778 msgid "General Film Company" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> #: freeculture.xml:2779 freeculture.xml:3022 freeculture.xml:4121 freeculture.xml:9469 msgid "Picker, Randal C." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:2756 msgid "" "With the country experiencing a tremendous expansion in the number of " "nickelodeons, the Patents Company reacted to the independent movement by " "forming a strong-arm subsidiary known as the General Film Company to block " "the entry of non-licensed independents. With coercive tactics that have " "become legendary, General Film confiscated unlicensed equipment, " "discontinued product supply to theaters which showed unlicensed films, and " "effectively monopolized distribution with the acquisition of all U.S. film " "exchanges, except for the one owned by the independent William Fox who " "defied the Trust even after his license was revoked.<placeholder " "type=\"footnote\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> " "<placeholder type=\"indexterm\" id=\"2\"/>" msgstr "" #. f3 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:2789 msgid "" "Marc Wanamaker, \"The First Studios,\" The Silents Majority, archived at " "<ulink url=\"http://free-culture.cc/notes/\">link #12</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:2783 msgid "" "The Napsters of those days, the \"independents,\" were companies like " "Fox. And no less than today, these independents were vigorously resisted. " "\"Shooting was disrupted by machinery stolen, and `accidents' resulting in " "loss of negatives, equipment, buildings and sometimes life and limb " "frequently occurred.\"<placeholder type=\"footnote\" id=\"0\"/> That led the " "independents to flee the East Coast. California was remote enough from " "Edison's reach that filmmakers there could pirate his inventions without " "fear of the law. And the leaders of Hollywood filmmaking, Fox most " "prominently, did just that." msgstr "" #. PAGE BREAK 68 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:2799 msgid "" "Of course, California grew quickly, and the effective enforcement of federal " "law eventually spread west. But because patents grant the patent holder a " "truly \"limited\" monopoly (just seventeen years at that time), by the time " "enough federal marshals appeared, the patents had expired. A new industry " "had been born, in part from the piracy of Edison's creative property." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:2810 msgid "Recorded Music" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:2812 msgid "" "The record industry was born of another kind of piracy, though to see how " "requires a bit of detail about the way the law regulates music." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:2816 msgid "" "At the time that Edison and Henri Fourneaux invented machines for " "reproducing music (Edison the phonograph, Fourneaux the player piano), the " "law gave composers the exclusive right to control copies of their music and " "the exclusive right to control public performances of their music. In other " "words, in 1900, if I wanted a copy of Phil Russel's 1899 hit \"Happy Mose,\" " "the law said I would have to pay for the right to get a copy of the musical " "score, and I would also have to pay for the right to perform it publicly." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> #: freeculture.xml:2825 freeculture.xml:2967 msgid "Beatles" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:2827 msgid "" "But what if I wanted to record \"Happy Mose,\" using Edison's phonograph or " "Fourneaux's player piano? Here the law stumbled. It was clear enough that I " "would have to buy any copy of the musical score that I performed in making " "this recording. And it was clear enough that I would have to pay for any " "public performance of the work I was recording. But it wasn't totally clear " "that I would have to pay for a \"public performance\" if I recorded the song " "in my own house (even today, you don't owe the Beatles anything if you sing " "their songs in the shower), or if I recorded the song from memory (copies in " "your brain are not—yet— regulated by copyright law). So if I " "simply sang the song into a recording device in the privacy of my own home, " "it wasn't clear that I owed the composer anything. And more importantly, it " "wasn't clear whether I owed the composer anything if I then made copies of " "those recordings. Because of this gap in the law, then, I could effectively " "pirate someone else's song without paying its composer anything." msgstr "" #. PAGE BREAK 69 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:2845 msgid "" "The composers (and publishers) were none too happy about this capacity to " "pirate. As South Dakota senator Alfred Kittredge put it," msgstr "" #. f4 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> #: freeculture.xml:2859 msgid "" "To Amend and Consolidate the Acts Respecting Copyright: Hearings on S. 6330 " "and H.R. 19853 Before the ( Joint) Committees on Patents, 59th Cong. 59, 1st " "sess. (1906) (statement of Senator Alfred B. Kittredge, of South Dakota, " "chairman), reprinted in Legislative History of the Copyright Act, E. Fulton " "Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, " "1976)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:2852 msgid "" "Imagine the injustice of the thing. A composer writes a song or an opera. A " "publisher buys at great expense the rights to the same and copyrights " "it. Along come the phonographic companies and companies who cut music rolls " "and deliberately steal the work of the brain of the composer and publisher " "without any regard for [their] rights.<placeholder type=\"footnote\" " "id=\"0\"/>" msgstr "" #. f5 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:2873 msgid "" "To Amend and Consolidate the Acts Respecting Copyright, 223 (statement of " "Nathan Burkan, attorney for the Music Publishers Association)." msgstr "" #. f6 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:2879 msgid "" "To Amend and Consolidate the Acts Respecting Copyright, 226 (statement of " "Nathan Burkan, attorney for the Music Publishers Association)." msgstr "" #. f7 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:2886 msgid "" "To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of " "John Philip Sousa, composer)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:2869 msgid "" "The innovators who developed the technology to record other people's works " "were \"sponging upon the toil, the work, the talent, and genius of American " "composers,\"<placeholder type=\"footnote\" id=\"0\"/> and the \"music " "publishing industry\" was thereby \"at the complete mercy of this one " "pirate.\"<placeholder type=\"footnote\" id=\"1\"/> As John Philip Sousa put " "it, in as direct a way as possible, \"When they make money out of my pieces, " "I want a share of it.\"<placeholder type=\"footnote\" id=\"2\"/>" msgstr "" #. f8 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:2899 msgid "" "To Amend and Consolidate the Acts Respecting Copyright, 283–84 " "(statement of Albert Walker, representative of the Auto-Music Perforating " "Company of New York)." msgstr "" #. f9 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:2910 msgid "" "To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared " "memorandum of Philip Mauro, general patent counsel of the American " "Graphophone Company Association)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:2891 msgid "" "These arguments have familiar echoes in the wars of our day. So, too, do the " "arguments on the other side. The innovators who developed the player piano " "argued that \"it is perfectly demonstrable that the introduction of " "automatic music players has not deprived any composer of anything he had " "before their introduction.\" Rather, the machines increased the sales of " "sheet music.<placeholder type=\"footnote\" id=\"0\"/> In any case, the " "innovators argued, the job of Congress was \"to consider first the interest " "of [the public], whom they represent, and whose servants they are.\" \"All " "talk about `theft,'\" the general counsel of the American Graphophone " "Company wrote, \"is the merest claptrap, for there exists no property in " "ideas musical, literary or artistic, except as defined by " "statute.\"<placeholder type=\"footnote\" id=\"1\"/>" msgstr "" #. PAGE BREAK 70 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:2916 msgid "" "The law soon resolved this battle in favor of the composer and the recording " "artist. Congress amended the law to make sure that composers would be paid " "for the \"mechanical reproductions\" of their music. But rather than simply " "granting the composer complete control over the right to make mechanical " "reproductions, Congress gave recording artists a right to record the music, " "at a price set by Congress, once the composer allowed it to be recorded " "once. This is the part of copyright law that makes cover songs " "possible. Once a composer authorizes a recording of his song, others are " "free to record the same song, so long as they pay the original composer a " "fee set by the law." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:2930 msgid "" "American law ordinarily calls this a \"compulsory license,\" but I will " "refer to it as a \"statutory license.\" A statutory license is a license " "whose key terms are set by law. After Congress's amendment of the Copyright " "Act in 1909, record companies were free to distribute copies of recordings " "so long as they paid the composer (or copyright holder) the fee set by the " "statute." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> #: freeculture.xml:2945 freeculture.xml:13722 msgid "Grisham, John" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:2938 msgid "" "This is an exception within the law of copyright. When John Grisham writes a " "novel, a publisher is free to publish that novel only if Grisham gives the " "publisher permission. Grisham, in turn, is free to charge whatever he wants " "for that permission. The price to publish Grisham is thus set by Grisham, " "and copyright law ordinarily says you have no permission to use Grisham's " "work except with permission of Grisham. <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. f10 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:2961 msgid "" "Copyright Law Revision: Hearings on S. 2499, S. 2900, H.R. 243, and " "H.R. 11794 Before the ( Joint) Committee on Patents, 60th Cong., 1st sess., " "217 (1908) (statement of Senator Reed Smoot, chairman), reprinted in " "Legislative History of the 1909 Copyright Act, E. Fulton Brylawski and Abe " "Goldman, eds. (South Hackensack, N.J.: Rothman Reprints, 1976)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:2948 msgid "" "But the law governing recordings gives recording artists less. And thus, in " "effect, the law subsidizes the recording industry through a kind of " "piracy—by giving recording artists a weaker right than it otherwise " "gives creative authors. The Beatles have less control over their creative " "work than Grisham does. And the beneficiaries of this less control are the " "recording industry and the public. The recording industry gets something of " "value for less than it otherwise would pay; the public gets access to a much " "wider range of musical creativity. Indeed, Congress was quite explicit about " "its reasons for granting this right. Its fear was the monopoly power of " "rights holders, and that that power would stifle follow-on " "creativity.<placeholder type=\"footnote\" id=\"0\"/> <placeholder " "type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:2970 msgid "" "While the recording industry has been quite coy about this recently, " "historically it has been quite a supporter of the statutory license for " "records. As a 1967 report from the House Committee on the Judiciary relates," msgstr "" #. f11 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> #: freeculture.xml:2992 msgid "" "Copyright Law Revision: Report to Accompany H.R. 2512, House Committee on " "the Judiciary, 90th Cong., 1st sess., House Document no. 83, (8 March " "1967). I am grateful to Glenn Brown for drawing my attention to this report." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:2977 msgid "" "the record producers argued vigorously that the compulsory license system " "must be retained. They asserted that the record industry is a " "half-billion-dollar business of great economic importance in the United " "States and throughout the world; records today are the principal means of " "disseminating music, and this creates special problems, since performers " "need unhampered access to musical material on nondiscriminatory " "terms. Historically, the record producers pointed out, there were no " "recording rights before 1909 and the 1909 statute adopted the compulsory " "license as a deliberate anti-monopoly condition on the grant of these " "rights. They argue that the result has been an outpouring of recorded music, " "with the public being given lower prices, improved quality, and a greater " "choice.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:2999 msgid "" "By limiting the rights musicians have, by partially pirating their creative " "work, the record producers, and the public, benefit." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> #: freeculture.xml:3004 freeculture.xml:4086 msgid "Radio" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3006 msgid "Radio was also born of piracy." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> #: freeculture.xml:3021 msgid "Hand, Learned" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3012 msgid "" "See 17 United States Code, sections 106 and 110. At the beginning, record " "companies printed \"Not Licensed for Radio Broadcast\" and other messages " "purporting to restrict the ability to play a record on a radio station. " "Judge Learned Hand rejected the argument that a warning attached to a record " "might restrict the rights of the radio station. See RCA Manufacturing " "Co. v. Whiteman, 114 F. 2d 86 (2nd Cir. 1940). See also Randal C. Picker, " "\"From Edison to the Broadcast Flag: Mechanisms of Consent and Refusal and " "the Propertization of Copyright,\" University of Chicago Law Review 70 " "(2003): 281. <placeholder type=\"indexterm\" id=\"0\"/> <placeholder " "type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3009 msgid "" "When a radio station plays a record on the air, that constitutes a \"public " "performance\" of the composer's work.<placeholder type=\"footnote\" " "id=\"0\"/> As I described above, the law gives the composer (or copyright " "holder) an exclusive right to public performances of his work. The radio " "station thus owes the composer money for that performance." msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:3038 freeculture.xml:8564 freeculture.xml:9022 freeculture.xml:11921 msgid "Lovett, Lyle" msgstr "" #. PAGE BREAK 72 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3029 msgid "" "But when the radio station plays a record, it is not only performing a copy " "of the composer's work. The radio station is also performing a copy of the " "recording artist's work. It's one thing to have \"Happy Birthday\" sung on " "the radio by the local children's choir; it's quite another to have it sung " "by the Rolling Stones or Lyle Lovett. The recording artist is adding to the " "value of the composition performed on the radio station. And if the law " "were perfectly consistent, the radio station would have to pay the recording " "artist for his work, just as it pays the composer of the music for his " "work. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3043 msgid "" "But it doesn't. Under the law governing radio performances, the radio " "station does not have to pay the recording artist. The radio station need " "only pay the composer. The radio station thus gets a bit of something for " "nothing. It gets to perform the recording artist's work for free, even if it " "must pay the composer something for the privilege of playing the song." msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:3051 freeculture.xml:3535 freeculture.xml:5939 msgid "Madonna" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3054 msgid "" "This difference can be huge. Imagine you compose a piece of music. Imagine " "it is your first. You own the exclusive right to authorize public " "performances of that music. So if Madonna wants to sing your song in public, " "she has to get your permission." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3060 msgid "" "Imagine she does sing your song, and imagine she likes it a lot. She then " "decides to make a recording of your song, and it becomes a top hit. Under " "our law, every time a radio station plays your song, you get some money. But " "Madonna gets nothing, save the indirect effect on the sale of her CDs. The " "public performance of her recording is not a \"protected\" right. The radio " "station thus gets to pirate the value of Madonna's work without paying her " "anything." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3070 msgid "" "No doubt, one might argue that, on balance, the recording artists " "benefit. On average, the promotion they get is worth more than the " "performance rights they give up. Maybe. But even if so, the law ordinarily " "gives the creator the right to make this choice. By making the choice for " "him or her, the law gives the radio station the right to take something for " "nothing." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> #: freeculture.xml:3079 freeculture.xml:4092 msgid "Cable TV" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3082 msgid "Cable TV was also born of a kind of piracy." msgstr "" #. PAGE BREAK 73 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3085 msgid "" "When cable entrepreneurs first started wiring communities with cable " "television in 1948, most refused to pay broadcasters for the content that " "they echoed to their customers. Even when the cable companies started " "selling access to television broadcasts, they refused to pay for what they " "sold. Cable companies were thus Napsterizing broadcasters' content, but more " "egregiously than anything Napster ever did— Napster never charged for " "the content it enabled others to give away." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:3095 msgid "Anello, Douglas" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:3096 msgid "Burdick, Quentin" msgstr "" #. f13 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3102 msgid "" "Copyright Law Revision—CATV: Hearing on S. 1006 Before the " "Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee " "on the Judiciary, 89th Cong., 2nd sess., 78 (1966) (statement of Rosel " "H. Hyde, chairman of the Federal Communications Commission)." msgstr "" #. f14 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3113 msgid "" "Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello, " "general counsel of the National Association of Broadcasters)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3098 msgid "" "Broadcasters and copyright owners were quick to attack this theft. Rosel " "Hyde, chairman of the FCC, viewed the practice as a kind of \"unfair and " "potentially destructive competition.\"<placeholder type=\"footnote\" " "id=\"0\"/> There may have been a \"public interest\" in spreading the reach " "of cable TV, but as Douglas Anello, general counsel to the National " "Association of Broadcasters, asked Senator Quentin Burdick during testimony, " "\"Does public interest dictate that you use somebody else's " "property?\"<placeholder type=\"footnote\" id=\"1\"/> As another broadcaster " "put it," msgstr "" #. f15 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> #: freeculture.xml:3124 msgid "" "Copyright Law Revision—CATV, 126 (statement of Ernest W. Jennes, " "general counsel of the Association of Maximum Service Telecasters, Inc.)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:3120 msgid "" "The extraordinary thing about the CATV business is that it is the only " "business I know of where the product that is being sold is not paid " "for.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3130 msgid "Again, the demand of the copyright holders seemed reasonable enough:" msgstr "" #. f16 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> #: freeculture.xml:3139 msgid "" "Copyright Law Revision—CATV, 169 (joint statement of Arthur B. Krim, " "president of United Artists Corp., and John Sinn, president of United " "Artists Television, Inc.)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:3134 msgid "" "All we are asking for is a very simple thing, that people who now take our " "property for nothing pay for it. We are trying to stop piracy and I don't " "think there is any lesser word to describe it. I think there are harsher " "words which would fit it.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. f17 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3150 msgid "" "Copyright Law Revision—CATV, 209 (statement of Charlton Heston, " "president of the Screen Actors Guild)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3146 msgid "" "These were \"free-ride[rs],\" Screen Actor's Guild president Charlton Heston " "said, who were \"depriving actors of compensation.\"<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3155 msgid "" "But again, there was another side to the debate. As Assistant Attorney " "General Edwin Zimmerman put it," msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><indexterm><primary> #: freeculture.xml:3171 freeculture.xml:3173 msgid "Zimmerman, Edwin" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> #: freeculture.xml:3169 msgid "" "Copyright Law Revision—CATV, 216 (statement of Edwin M. Zimmerman, " "acting assistant attorney general). <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:3160 msgid "" "Our point here is that unlike the problem of whether you have any copyright " "protection at all, the problem here is whether copyright holders who are " "already compensated, who already have a monopoly, should be permitted to " "extend that monopoly. . . . The question here is how much compensation they " "should have and how far back they should carry their right to " "compensation.<placeholder type=\"footnote\" id=\"0\"/> <placeholder " "type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3177 msgid "" "Copyright owners took the cable companies to court. Twice the Supreme Court " "held that the cable companies owed the copyright owners nothing." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3181 msgid "" "It took Congress almost thirty years before it resolved the question of " "whether cable companies had to pay for the content they \"pirated.\" In the " "end, Congress resolved this question in the same way that it resolved the " "question about record players and player pianos. Yes, cable companies would " "have to pay for the content that they broadcast; but the price they would " "have to pay was not set by the copyright owner. The price was set by law, " "so that the broadcasters couldn't exercise veto power over the emerging " "technologies of cable. Cable companies thus built their empire in part upon " "a \"piracy\" of the value created by broadcasters' content." msgstr "" #. f19 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3198 msgid "" "See, for example, National Music Publisher's Association, The Engine of Free " "Expression: Copyright on the Internet—The Myth of Free Information, " "available at <ulink url=\"http://free-culture.cc/notes/\">link " "#13</ulink>. \"The threat of piracy—the use of someone else's creative " "work without permission or compensation—has grown with the Internet.\"" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3193 msgid "" "These separate stories sing a common theme. If \"piracy\" means using value " "from someone else's creative property without permission from that " "creator—as it is increasingly described today<placeholder " "type=\"footnote\" id=\"0\"/> — then every industry affected by " "copyright today is the product and beneficiary of a certain kind of " "piracy. Film, records, radio, cable TV. . . . The list is long and could " "well be expanded. Every generation welcomes the pirates from the last. Every " "generation—until now." msgstr "" #. type: Content of: <book><chapter><sect1><title> #: freeculture.xml:3215 msgid "CHAPTER FIVE: \"Piracy\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:3217 msgid "" "There is piracy of copyrighted material. Lots of it. This piracy comes in " "many forms. The most significant is commercial piracy, the unauthorized " "taking of other people's content within a commercial context. Despite the " "many justifications that are offered in its defense, this taking is " "wrong. No one should condone it, and the law should stop it." msgstr "" #. PAGE BREAK 76 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:3225 msgid "" "But as well as copy-shop piracy, there is another kind of \"taking\" that is " "more directly related to the Internet. That taking, too, seems wrong to " "many, and it is wrong much of the time. Before we paint this taking " "\"piracy,\" however, we should understand its nature a bit more. For the " "harm of this taking is significantly more ambiguous than outright copying, " "and the law should account for that ambiguity, as it has so often done in " "the past." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:3235 msgid "Piracy I" msgstr "" #. f1 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3243 msgid "" "See IFPI (International Federation of the Phonographic Industry), The " "Recording Industry Commercial Piracy Report 2003, July 2003, available at " "<ulink url=\"http://free-culture.cc/notes/\">link #14</ulink>. See also Ben " "Hunt, \"Companies Warned on Music Piracy Risk,\" Financial Times, 14 " "February 2003, 11." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3237 msgid "" "All across the world, but especially in Asia and Eastern Europe, there are " "businesses that do nothing but take others people's copyrighted content, " "copy it, and sell it—all without the permission of a copyright " "owner. The recording industry estimates that it loses about $4.6 billion " "every year to physical piracy<placeholder type=\"footnote\" id=\"0\"/> (that " "works out to one in three CDs sold worldwide). The MPAA estimates that it " "loses $3 billion annually worldwide to piracy." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3253 msgid "" "This is piracy plain and simple. Nothing in the argument of this book, nor " "in the argument that most people make when talking about the subject of this " "book, should draw into doubt this simple point: This piracy is wrong." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3259 msgid "" "Which is not to say that excuses and justifications couldn't be made for " "it. We could, for example, remind ourselves that for the first one hundred " "years of the American Republic, America did not honor foreign copyrights. We " "were born, in this sense, a pirate nation. It might therefore seem " "hypocritical for us to insist so strongly that other developing nations " "treat as wrong what we, for the first hundred years of our existence, " "treated as right." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3268 msgid "" "That excuse isn't terribly strong. Technically, our law did not ban the " "taking of foreign works. It explicitly limited itself to American " "works. Thus the American publishers who published foreign works without the " "permission of foreign authors were not violating any rule. The copy shops " "in Asia, by contrast, are violating Asian law. Asian law does protect " "foreign copyrights, and the actions of the copy shops violate that law. So " "the wrong of piracy that they engage in is not just a moral wrong, but a " "legal wrong, and not just an internationally legal wrong, but a locally " "legal wrong as well." msgstr "" #. PAGE BREAK 77 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3279 msgid "" "True, these local rules have, in effect, been imposed upon these " "countries. No country can be part of the world economy and choose not to " "protect copyright internationally. We may have been born a pirate nation, " "but we will not allow any other nation to have a similar childhood." msgstr "" #. type: Content of: <book><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:3306 freeculture.xml:12198 freeculture.xml:12627 freeculture.xml:12634 msgid "Drahos, Peter" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3292 msgid "" "See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the " "Knowledge Economy? (New York: The New Press, 2003), 10–13, 209. The " "Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement " "obligates member nations to create administrative and enforcement mechanisms " "for intellectual property rights, a costly proposition for developing " "countries. Additionally, patent rights may lead to higher prices for staple " "industries such as agriculture. Critics of TRIPS question the disparity " "between burdens imposed upon developing countries and benefits conferred to " "industrialized nations. TRIPS does permit governments to use patents for " "public, noncommercial uses without first obtaining the patent holder's " "permission. Developing nations may be able to use this to gain the benefits " "of foreign patents at lower prices. This is a promising strategy for " "developing nations within the TRIPS framework. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3287 msgid "" "If a country is to be treated as a sovereign, however, then its laws are its " "laws regardless of their source. The international law under which these " "nations live gives them some opportunities to escape the burden of " "intellectual property law.<placeholder type=\"footnote\" id=\"0\"/> In my " "view, more developing nations should take advantage of that opportunity, but " "when they don't, then their laws should be respected. And under the laws of " "these nations, this piracy is wrong." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> #: freeculture.xml:3326 freeculture.xml:3582 freeculture.xml:14245 msgid "Liebowitz, Stan" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3319 msgid "" "For an analysis of the economic impact of copying technology, see Stan " "Liebowitz, Rethinking the Network Economy (New York: Amacom, 2002), " "144–90. \"In some instances . . . the impact of piracy on the " "copyright holder's ability to appropriate the value of the work will be " "negligible. One obvious instance is the case where the individual engaging " "in pirating would not have purchased an original even if pirating were not " "an option.\" Ibid., 149. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3313 msgid "" "Alternatively, we could try to excuse this piracy by noting that in any " "case, it does no harm to the industry. The Chinese who get access to " "American CDs at 50 cents a copy are not people who would have bought those " "American CDs at $15 a copy. So no one really has any less money than they " "otherwise would have had.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3330 msgid "" "This is often true (though I have friends who have purchased many thousands " "of pirated DVDs who certainly have enough money to pay for the content they " "have taken), and it does mitigate to some degree the harm caused by such " "taking. Extremists in this debate love to say, \"You wouldn't go into Barnes " "& Noble and take a book off of the shelf without paying; why should it " "be any different with on-line music?\" The difference is, of course, that " "when you take a book from Barnes & Noble, it has one less book to " "sell. By contrast, when you take an MP3 from a computer network, there is " "not one less CD that can be sold. The physics of piracy of the intangible " "are different from the physics of piracy of the tangible." msgstr "" #. PAGE BREAK 78 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3343 msgid "" "This argument is still very weak. However, although copyright is a property " "right of a very special sort, it is a property right. Like all property " "rights, the copyright gives the owner the right to decide the terms under " "which content is shared. If the copyright owner doesn't want to sell, she " "doesn't have to. There are exceptions: important statutory licenses that " "apply to copyrighted content regardless of the wish of the copyright " "owner. Those licenses give people the right to \"take\" copyrighted content " "whether or not the copyright owner wants to sell. But where the law does not " "give people the right to take content, it is wrong to take that content even " "if the wrong does no harm. If we have a property system, and that system is " "properly balanced to the technology of a time, then it is wrong to take " "property without the permission of a property owner. That is exactly what " "\"property\" means." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> #: freeculture.xml:3372 msgid "Windows" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3361 msgid "" "Finally, we could try to excuse this piracy with the argument that the " "piracy actually helps the copyright owner. When the Chinese \"steal\" " "Windows, that makes the Chinese dependent on Microsoft. Microsoft loses the " "value of the software that was taken. But it gains users who are used to " "life in the Microsoft world. Over time, as the nation grows more wealthy, " "more and more people will buy software rather than steal it. And hence over " "time, because that buying will benefit Microsoft, Microsoft benefits from " "the piracy. If instead of pirating Microsoft Windows, the Chinese used the " "free GNU/Linux operating system, then these Chinese users would not " "eventually be buying Microsoft. Without piracy, then, Microsoft would " "lose. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3375 msgid "" "This argument, too, is somewhat true. The addiction strategy is a good " "one. Many businesses practice it. Some thrive because of it. Law students, " "for example, are given free access to the two largest legal databases. The " "companies marketing both hope the students will become so used to their " "service that they will want to use it and not the other when they become " "lawyers (and must pay high subscription fees)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3383 msgid "" "Still, the argument is not terribly persuasive. We don't give the alcoholic " "a defense when he steals his first beer, merely because that will make it " "more likely that he will buy the next three. Instead, we ordinarily allow " "businesses to decide for themselves when it is best to give their product " "away. If Microsoft fears the competition of GNU/Linux, then Microsoft can " "give its product away, as it did, for example, with Internet Explorer to " "fight Netscape. A property right means giving the property owner the right " "to say who gets access to what—at least ordinarily. And if the law " "properly balances the rights of the copyright owner with the rights of " "access, then violating the law is still wrong." msgstr "" #. PAGE BREAK 79 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3397 msgid "" "Thus, while I understand the pull of these justifications for piracy, and I " "certainly see the motivation, in my view, in the end, these efforts at " "justifying commercial piracy simply don't cut it. This kind of piracy is " "rampant and just plain wrong. It doesn't transform the content it steals; it " "doesn't transform the market it competes in. It merely gives someone access " "to something that the law says he should not have. Nothing has changed to " "draw that law into doubt. This form of piracy is flat out wrong." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3407 msgid "" "But as the examples from the four chapters that introduced this part " "suggest, even if some piracy is plainly wrong, not all \"piracy\" is. Or at " "least, not all \"piracy\" is wrong if that term is understood in the way it " "is increasingly used today. Many kinds of \"piracy\" are useful and " "productive, to produce either new content or new ways of doing business. " "Neither our tradition nor any tradition has ever banned all \"piracy\" in " "that sense of the term." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3416 msgid "" "This doesn't mean that there are no questions raised by the latest piracy " "concern, peer-to-peer file sharing. But it does mean that we need to " "understand the harm in peer-to-peer sharing a bit more before we condemn it " "to the gallows with the charge of piracy." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3422 msgid "" "For (1) like the original Hollywood, p2p sharing escapes an overly " "controlling industry; and (2) like the original recording industry, it " "simply exploits a new way to distribute content; but (3) unlike cable TV, no " "one is selling the content that is shared on p2p services." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3428 msgid "" "These differences distinguish p2p sharing from true piracy. They should push " "us to find a way to protect artists while enabling this sharing to survive." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:3434 msgid "Piracy II" msgstr "" #. f4 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3439 msgid "Bach v. Longman, 98 Eng. Rep. 1274 (1777)." msgstr "" #. PAGE BREAK 80 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3436 msgid "" "The key to the \"piracy\" that the law aims to quash is a use that \"rob[s] " "the author of [his] profit.\"<placeholder type=\"footnote\" id=\"0\"/> This " "means we must determine whether and how much p2p sharing harms before we " "know how strongly the law should seek to either prevent it or find an " "alternative to assure the author of his profit." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> #: freeculture.xml:3461 freeculture.xml:7998 msgid "Christensen, Clayton M." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3453 msgid "" "See Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary " "National Bestseller That Changed the Way We Do Business (New York: " "HarperBusiness, 2000). Professor Christensen examines why companies that " "give rise to and dominate a product area are frequently unable to come up " "with the most creative, paradigm-shifting uses for their own products. This " "job usually falls to outside innovators, who reassemble existing technology " "in inventive ways. For a discussion of Christensen's ideas, see Lawrence " "Lessig, Future, 89–92, 139. <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> #: freeculture.xml:3464 msgid "Fanning, Shawn" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3448 msgid "" "Peer-to-peer sharing was made famous by Napster. But the inventors of the " "Napster technology had not made any major technological innovations. Like " "every great advance in innovation on the Internet (and, arguably, off the " "Internet as well<placeholder type=\"footnote\" id=\"0\"/>), Shawn Fanning " "and crew had simply put together components that had been developed " "independently. <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. f6 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3472 msgid "" "See Carolyn Lochhead, \"Silicon Valley Dream, Hollywood Nightmare,\" San " "Francisco Chronicle, 24 September 2002, A1; \"Rock 'n' Roll Suicide,\" New " "Scientist, 6 July 2002, 42; Benny Evangelista, \"Napster Names CEO, Secures " "New Financing,\" San Francisco Chronicle, 23 May 2003, C1; \"Napster's " "Wake-Up Call,\" Economist, 24 June 2000, 23; John Naughton, \"Hollywood at " "War with the Internet\" (London) Times, 26 July 2002, 18." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3467 msgid "" "The result was spontaneous combustion. Launched in July 1999, Napster " "amassed over 10 million users within nine months. After eighteen months, " "there were close to 80 million registered users of the system.<placeholder " "type=\"footnote\" id=\"0\"/> Courts quickly shut Napster down, but other " "services emerged to take its place. (Kazaa is currently the most popular p2p " "service. It boasts over 100 million members.) These services' systems are " "different architecturally, though not very different in function: Each " "enables users to make content available to any number of other users. With a " "p2p system, you can share your favorite songs with your best friend— " "or your 20,000 best friends." msgstr "" #. f7 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3494 msgid "" "See Ipsos-Insight, TEMPO: Keeping Pace with Online Music Distribution " "(September 2002), reporting that 28 percent of Americans aged twelve and " "older have downloaded music off of the Internet and 30 percent have listened " "to digital music files stored on their computers." msgstr "" #. f8 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3503 msgid "" "Amy Harmon, \"Industry Offers a Carrot in Online Music Fight,\" New York " "Times, 6 June 2003, A1." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3488 msgid "" "According to a number of estimates, a huge proportion of Americans have " "tasted file-sharing technology. A study by Ipsos-Insight in September 2002 " "estimated that 60 million Americans had downloaded music—28 percent of " "Americans older than 12.<placeholder type=\"footnote\" id=\"0\"/> A survey " "by the NPD group quoted in The New York Times estimated that 43 million " "citizens used file-sharing networks to exchange content in May " "2003.<placeholder type=\"footnote\" id=\"1\"/> The vast majority of these " "are not kids. Whatever the actual figure, a massive quantity of content is " "being \"taken\" on these networks. The ease and inexpensiveness of " "file-sharing networks have inspired millions to enjoy music in a way that " "they hadn't before." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3512 msgid "" "Some of this enjoying involves copyright infringement. Some of it does " "not. And even among the part that is technically copyright infringement, " "calculating the actual harm to copyright owners is more complicated than one " "might think. So consider—a bit more carefully than the polarized " "voices around this debate usually do—the kinds of sharing that file " "sharing enables, and the kinds of harm it entails." msgstr "" #. PAGE BREAK 81 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3522 msgid "" "File sharers share different kinds of content. We can divide these different " "kinds into four types." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:3528 msgid "" "There are some who use sharing networks as substitutes for purchasing " "content. Thus, when a new Madonna CD is released, rather than buying the CD, " "these users simply take it. We might quibble about whether everyone who " "takes it would actually have bought it if sharing didn't make it available " "for free. Most probably wouldn't have, but clearly there are some who " "would. The latter are the target of category A: users who download instead " "of purchasing. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. B. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:3539 msgid "" "There are some who use sharing networks to sample music before purchasing " "it. Thus, a friend sends another friend an MP3 of an artist he's not heard " "of. The other friend then buys CDs by that artist. This is a kind of " "targeted advertising, quite likely to succeed. If the friend recommending " "the album gains nothing from a bad recommendation, then one could expect " "that the recommendations will actually be quite good. The net effect of this " "sharing could increase the quantity of music purchased." msgstr "" #. C. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:3550 msgid "" "There are many who use sharing networks to get access to copyrighted content " "that is no longer sold or that they would not have purchased because the " "transaction costs off the Net are too high. This use of sharing networks is " "among the most rewarding for many. Songs that were part of your childhood " "but have long vanished from the marketplace magically appear again on the " "network. (One friend told me that when she discovered Napster, she spent a " "solid weekend \"recalling\" old songs. She was astonished at the range and " "mix of content that was available.) For content not sold, this is still " "technically a violation of copyright, though because the copyright owner is " "not selling the content anymore, the economic harm is zero—the same " "harm that occurs when I sell my collection of 1960s 45-rpm records to a " "local collector." msgstr "" #. PAGE BREAK 82 #. D. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:3567 msgid "" "Finally, there are many who use sharing networks to get access to content " "that is not copyrighted or that the copyright owner wants to give away." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3573 msgid "How do these different types of sharing balance out?" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3581 msgid "" "See Liebowitz, Rethinking the Network Economy,148–49. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3576 msgid "" "Let's start with some simple but important points. From the perspective of " "the law, only type D sharing is clearly legal. From the perspective of " "economics, only type A sharing is clearly harmful.<placeholder " "type=\"footnote\" id=\"0\"/> Type B sharing is illegal but plainly " "beneficial. Type C sharing is illegal, yet good for society (since more " "exposure to music is good) and harmless to the artist (since the work is " "not otherwise available). So how sharing matters on balance is a hard " "question to answer—and certainly much more difficult than the current " "rhetoric around the issue suggests." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3592 msgid "" "Whether on balance sharing is harmful depends importantly on how harmful " "type A sharing is. Just as Edison complained about Hollywood, composers " "complained about piano rolls, recording artists complained about radio, and " "broadcasters complained about cable TV, the music industry complains that " "type A sharing is a kind of \"theft\" that is \"devastating\" the industry." msgstr "" #. f10 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3607 msgid "" "See Cap Gemini Ernst & Young, Technology Evolution and the Music " "Industry's Business Model Crisis (2003), 3. This report describes the music " "industry's effort to stigmatize the budding practice of cassette taping in " "the 1970s, including an advertising campaign featuring a cassette-shape " "skull and the caption \"Home taping is killing music.\" At the time digital " "audio tape became a threat, the Office of Technical Assessment conducted a " "survey of consumer behavior. In 1988, 40 percent of consumers older than ten " "had taped music to a cassette format. U.S. Congress, Office of Technology " "Assessment, Copyright and Home Copying: Technology Challenges the Law, " "OTA-CIT-422 (Washington, D.C.: U.S. Government Printing Office, October " "1989), 145–56." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3600 msgid "" "While the numbers do suggest that sharing is harmful, how harmful is harder " "to reckon. It has long been the recording industry's practice to blame " "technology for any drop in sales. The history of cassette recording is a " "good example. As a study by Cap Gemini Ernst & Young put it, \"Rather " "than exploiting this new, popular technology, the labels fought " "it.\"<placeholder type=\"footnote\" id=\"0\"/> The labels claimed that every " "album taped was an album unsold, and when record sales fell by 11.4 percent " "in 1981, the industry claimed that its point was proved. Technology was the " "problem, and banning or regulating technology was the answer." msgstr "" #. f11 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3633 msgid "U.S. Congress, Copyright and Home Copying, 4." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3625 msgid "" "Yet soon thereafter, and before Congress was given an opportunity to enact " "regulation, MTV was launched, and the industry had a record turnaround. \"In " "the end,\" Cap Gemini concludes, \"the `crisis' . . . was not the fault of " "the tapers—who did not [stop after MTV came into being]—but had " "to a large extent resulted from stagnation in musical innovation at the " "major labels.\"<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3637 msgid "" "But just because the industry was wrong before does not mean it is wrong " "today. To evaluate the real threat that p2p sharing presents to the industry " "in particular, and society in general—or at least the society that " "inherits the tradition that gave us the film industry, the record industry, " "the radio industry, cable TV, and the VCR—the question is not simply " "whether type A sharing is harmful. The question is also how harmful type A " "sharing is, and how beneficial the other types of sharing are." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3647 msgid "" "We start to answer this question by focusing on the net harm, from the " "standpoint of the industry as a whole, that sharing networks cause. The " "\"net harm\" to the industry as a whole is the amount by which type A " "sharing exceeds type B. If the record companies sold more records through " "sampling than they lost through substitution, then sharing networks would " "actually benefit music companies on balance. They would therefore have " "little static reason to resist them." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3656 msgid "" "Could that be true? Could the industry as a whole be gaining because of file " "sharing? Odd as that might sound, the data about CD sales actually suggest " "it might be close." msgstr "" #. f12 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3666 msgid "" "See Recording Industry Association of America, 2002 Yearend Statistics, " "available at <ulink url=\"http://free-culture.cc/notes/\">link " "#15</ulink>. A later report indicates even greater losses. See Recording " "Industry Association of America, Some Facts About Music Piracy, 25 June " "2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#16</ulink>: \"In the past four years, unit shipments of recorded music have " "fallen by 26 percent from 1.16 billion units in to 860 million units in 2002 " "in the United States (based on units shipped). In terms of sales, revenues " "are down 14 percent, from $14.6 billion in to $12.6 billion last year (based " "on U.S. dollar value of shipments). The music industry worldwide has gone " "from a $39 billion industry in 2000 down to a $32 billion industry in 2002 " "(based on U.S. dollar value of shipments).\"" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> #: freeculture.xml:3693 msgid "Black, Jane" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3690 msgid "" "Jane Black, \"Big Music's Broken Record,\" BusinessWeek online, 13 February " "2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#17</ulink>. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3662 msgid "" "In 2002, the RIAA reported that CD sales had fallen by 8.9 percent, from 882 " "million to 803 million units; revenues fell 6.7 percent.<placeholder " "type=\"footnote\" id=\"0\"/> This confirms a trend over the past few " "years. The RIAA blames Internet piracy for the trend, though there are many " "other causes that could account for this drop. SoundScan, for example, " "reports a more than 20 percent drop in the number of CDs released since " "1999. That no doubt accounts for some of the decrease in sales. Rising " "prices could account for at least some of the loss. \"From 1999 to 2001, the " "average price of a CD rose 7.2 percent, from $13.04 to $14.19.\"<placeholder " "type=\"footnote\" id=\"1\"/> Competition from other forms of media could " "also account for some of the decline. As Jane Black of BusinessWeek notes, " "\"The soundtrack to the film High Fidelity has a list price of $18.98. You " "could get the whole movie [on DVD] for $19.99.\"<placeholder " "type=\"footnote\" id=\"2\"/>" msgstr "" #. PAGE BREAK 84 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3707 msgid "" "But let's assume the RIAA is right, and all of the decline in CD sales is " "because of Internet sharing. Here's the rub: In the same period that the " "RIAA estimates that 803 million CDs were sold, the RIAA estimates that 2.1 " "billion CDs were downloaded for free. Thus, although 2.6 times the total " "number of CDs sold were downloaded for free, sales revenue fell by just 6.7 " "percent." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3716 msgid "" "There are too many different things happening at the same time to explain " "these numbers definitively, but one conclusion is unavoidable: The recording " "industry constantly asks, \"What's the difference between downloading a song " "and stealing a CD?\"—but their own numbers reveal the difference. If I " "steal a CD, then there is one less CD to sell. Every taking is a lost " "sale. But on the basis of the numbers the RIAA provides, it is absolutely " "clear that the same is not true of downloads. If every download were a lost " "sale—if every use of Kazaa \"rob[bed] the author of [his] " "profit\"—then the industry would have suffered a 100 percent drop in " "sales last year, not a 7 percent drop. If 2.6 times the number of CDs sold " "were downloaded for free, and yet sales revenue dropped by just 6.7 percent, " "then there is a huge difference between \"downloading a song and stealing a " "CD.\"" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3734 msgid "" "These are the harms—alleged and perhaps exaggerated but, let's assume, " "real. What of the benefits? File sharing may impose costs on the recording " "industry. What value does it produce in addition to these costs?" msgstr "" #. f15 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3747 msgid "" "By one estimate, 75 percent of the music released by the major labels is no " "longer in print. See Online Entertainment and Copyright Law—Coming " "Soon to a Digital Device Near You: Hearing Before the Senate Committee on " "the Judiciary, 107th Cong., 1st sess. (3 April 2001) (prepared statement of " "the Future of Music Coalition), available at <ulink " "url=\"http://free-culture.cc/notes/\">link #18</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3741 msgid "" "One benefit is type C sharing—making available content that is " "technically still under copyright but is no longer commercially available. " "This is not a small category of content. There are millions of tracks that " "are no longer commercially available.<placeholder type=\"footnote\" " "id=\"0\"/> And while it's conceivable that some of this content is not " "available because the artist producing the content doesn't want it to be " "made available, the vast majority of it is unavailable solely because the " "publisher or the distributor has decided it no longer makes economic sense " "to the company to make it available." msgstr "" #. f16 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3772 msgid "" "While there are not good estimates of the number of used record stores in " "existence, in 2002, there were 7,198 used book dealers in the United States, " "an increase of 20 percent since 1993. See Book Hunter Press, The Quiet " "Revolution: The Expansion of the Used Book Market (2002), available at " "<ulink url=\"http://free-culture.cc/notes/\">link #19</ulink>. Used records " "accounted for $260 million in sales in 2002. See National Association of " "Recording Merchandisers, \"2002 Annual Survey Results,\" available at <ulink " "url=\"http://free-culture.cc/notes/\">link #20</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3766 msgid "" "In real space—long before the Internet—the market had a simple " "response to this problem: used book and record stores. There are thousands " "of used book and used record stores in America today.<placeholder " "type=\"footnote\" id=\"0\"/> These stores buy content from owners, then sell " "the content they buy. And under American copyright law, when they buy and " "sell this content, even if the content is still under copyright, the " "copyright owner doesn't get a dime. Used book and record stores are " "commercial entities; their owners make money from the content they sell; but " "as with cable companies before statutory licensing, they don't have to pay " "the copyright owner for the content they sell." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:3793 msgid "Bernstein, Leonard" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3795 msgid "" "Type C sharing, then, is very much like used book stores or used record " "stores. It is different, of course, because the person making the content " "available isn't making money from making the content available. It is also " "different, of course, because in real space, when I sell a record, I don't " "have it anymore, while in cyberspace, when someone shares my 1949 recording " "of Bernstein's \"Two Love Songs,\" I still have it. That difference would " "matter economically if the owner of the copyright were selling the record in " "competition to my sharing. But we're talking about the class of content that " "is not currently commercially available. The Internet is making it " "available, through cooperative sharing, without competing with the market." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3808 msgid "" "It may well be, all things considered, that it would be better if the " "copyright owner got something from this trade. But just because it may well " "be better, it doesn't follow that it would be good to ban used book " "stores. Or put differently, if you think that type C sharing should be " "stopped, do you think that libraries and used book stores should be shut as " "well?" msgstr "" #. PAGE BREAK 86 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3816 msgid "" "Finally, and perhaps most importantly, file-sharing networks enable type D " "sharing to occur—the sharing of content that copyright owners want to " "have shared or for which there is no continuing copyright. This sharing " "clearly benefits authors and society. Science fiction author Cory Doctorow, " "for example, released his first novel, Down and Out in the Magic Kingdom, " "both free on-line and in bookstores on the same day. His (and his " "publisher's) thinking was that the on-line distribution would be a great " "advertisement for the \"real\" book. People would read part on-line, and " "then decide whether they liked the book or not. If they liked it, they would " "be more likely to buy it. Doctorow's content is type D content. If sharing " "networks enable his work to be spread, then both he and society are better " "off. (Actually, much better off: It is a great book!)" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3833 msgid "" "Likewise for work in the public domain: This sharing benefits society with " "no legal harm to authors at all. If efforts to solve the problem of type A " "sharing destroy the opportunity for type D sharing, then we lose something " "important in order to protect type A content." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3839 msgid "" "The point throughout is this: While the recording industry understandably " "says, \"This is how much we've lost,\" we must also ask, \"How much has " "society gained from p2p sharing? What are the efficiencies? What is the " "content that otherwise would be unavailable?\"" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3846 msgid "" "For unlike the piracy I described in the first section of this chapter, much " "of the \"piracy\" that file sharing enables is plainly legal and good. And " "like the piracy I described in chapter 4, much of this piracy is motivated " "by a new way of spreading content caused by changes in the technology of " "distribution. Thus, consistent with the tradition that gave us Hollywood, " "radio, the recording industry, and cable TV, the question we should be " "asking about file sharing is how best to preserve its benefits while " "minimizing (to the extent possible) the wrongful harm it causes artists. The " "question is one of balance. The law should seek that balance, and that " "balance will be found only with time." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3859 msgid "" "\"But isn't the war just a war against illegal sharing? Isn't the target " "just what you call type A sharing?\"" msgstr "" #. f17 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3876 msgid "" "See Transcript of Proceedings, In Re: Napster Copyright Litigation at 34- 35 " "(N.D. Cal., 11 July 2001), nos. MDL-00-1369 MHP, C 99-5183 MHP, available at " "<ulink url=\"http://free-culture.cc/notes/\">link #21</ulink>. For an " "account of the litigation and its toll on Napster, see Joseph Menn, All the " "Rave: The Rise and Fall of Shawn Fanning's Napster (New York: Crown " "Business, 2003), 269–82." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3863 msgid "" "You would think. And we should hope. But so far, it is not. The effect of " "the war purportedly on type A sharing alone has been felt far beyond that " "one class of sharing. That much is obvious from the Napster case " "itself. When Napster told the district court that it had developed a " "technology to block the transfer of 99.4 percent of identified infringing " "material, the district court told counsel for Napster 99.4 percent was not " "good enough. Napster had to push the infringements \"down to " "zero.\"<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3886 msgid "" "If 99.4 percent is not good enough, then this is a war on file-sharing " "technologies, not a war on copyright infringement. There is no way to assure " "that a p2p system is used 100 percent of the time in compliance with the " "law, any more than there is a way to assure that 100 percent of VCRs or 100 " "percent of Xerox machines or 100 percent of handguns are used in compliance " "with the law. Zero tolerance means zero p2p. The court's ruling means that " "we as a society must lose the benefits of p2p, even for the totally legal " "and beneficial uses they serve, simply to assure that there are zero " "copyright infringements caused by p2p." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3897 msgid "" "Zero tolerance has not been our history. It has not produced the content " "industry that we know today. The history of American law has been a process " "of balance. As new technologies changed the way content was distributed, the " "law adjusted, after some time, to the new technology. In this adjustment, " "the law sought to ensure the legitimate rights of creators while protecting " "innovation. Sometimes this has meant more rights for creators. Sometimes " "less." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3908 msgid "" "So, as we've seen, when \"mechanical reproduction\" threatened the interests " "of composers, Congress balanced the rights of composers against the " "interests of the recording industry. It granted rights to composers, but " "also to the recording artists: Composers were to be paid, but at a price set " "by Congress. But when radio started broadcasting the recordings made by " "these recording artists, and they complained to Congress that their " "\"creative property\" was not being respected (since the radio station did " "not have to pay them for the creativity it broadcast), Congress rejected " "their claim. An indirect benefit was enough." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3921 msgid "" "Cable TV followed the pattern of record albums. When the courts rejected the " "claim that cable broadcasters had to pay for the content they rebroadcast, " "Congress responded by giving broadcasters a right to compensation, but at a " "level set by the law. It likewise gave cable companies the right to the " "content, so long as they paid the statutory price." msgstr "" #. PAGE BREAK 88 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3931 msgid "" "This compromise, like the compromise affecting records and player pianos, " "served two important goals—indeed, the two central goals of any " "copyright legislation. First, the law assured that new innovators would have " "the freedom to develop new ways to deliver content. Second, the law assured " "that copyright holders would be paid for the content that was " "distributed. One fear was that if Congress simply required cable TV to pay " "copyright holders whatever they demanded for their content, then copyright " "holders associated with broadcasters would use their power to stifle this " "new technology, cable. But if Congress had permitted cable to use " "broadcasters' content for free, then it would have unfairly subsidized " "cable. Thus Congress chose a path that would assure compensation without " "giving the past (broadcasters) control over the future (cable)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:3949 msgid "Betamax" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3951 msgid "" "In the same year that Congress struck this balance, two major producers and " "distributors of film content filed a lawsuit against another technology, the " "video tape recorder (VTR, or as we refer to them today, VCRs) that Sony had " "produced, the Betamax. Disney's and Universal's claim against Sony was " "relatively simple: Sony produced a device, Disney and Universal claimed, " "that enabled consumers to engage in copyright infringement. Because the " "device that Sony built had a \"record\" button, the device could be used to " "record copyrighted movies and shows. Sony was therefore benefiting from the " "copyright infringement of its customers. It should therefore, Disney and " "Universal claimed, be partially liable for that infringement." msgstr "" #. PAGE BREAK 89 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3964 msgid "" "There was something to Disney's and Universal's claim. Sony did decide to " "design its machine to make it very simple to record television shows. It " "could have built the machine to block or inhibit any direct copying from a " "television broadcast. Or possibly, it could have built the machine to copy " "only if there were a special \"copy me\" signal on the line. It was clear " "that there were many television shows that did not grant anyone permission " "to copy. Indeed, if anyone had asked, no doubt the majority of shows would " "not have authorized copying. And in the face of this obvious preference, " "Sony could have designed its system to minimize the opportunity for " "copyright infringement. It did not, and for that, Disney and Universal " "wanted to hold it responsible for the architecture it chose." msgstr "" #. f18 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3986 msgid "" "Copyright Infringements (Audio and Video Recorders): Hearing on S. 1758 " "Before the Senate Committee on the Judiciary, 97th Cong., 1st and 2nd sess., " "459 (1982) (testimony of Jack Valenti, president, Motion Picture Association " "of America, Inc.)." msgstr "" #. f19 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:3998 msgid "Copyright Infringements (Audio and Video Recorders), 475." msgstr "" #. f20 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:4003 msgid "" "Universal City Studios, Inc. v. Sony Corp. of America, 480 F. Supp. 429, " "(C.D. Cal., 1979)." msgstr "" #. f21 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:4014 msgid "" "Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack " "Valenti)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:3979 msgid "" "MPAA president Jack Valenti became the studios' most vocal champion. Valenti " "called VCRs \"tapeworms.\" He warned, \"When there are 20, 30, 40 million of " "these VCRs in the land, we will be invaded by millions of `tapeworms,' " "eating away at the very heart and essence of the most precious asset the " "copyright owner has, his copyright.\"<placeholder type=\"footnote\" " "id=\"0\"/> \"One does not have to be trained in sophisticated marketing and " "creative judgment,\" he told Congress, \"to understand the devastation on " "the after-theater marketplace caused by the hundreds of millions of tapings " "that will adversely impact on the future of the creative community in this " "country. It is simply a question of basic economics and plain common " "sense.\"<placeholder type=\"footnote\" id=\"1\"/> Indeed, as surveys would " "later show, percent of VCR owners had movie libraries of ten videos or " "more<placeholder type=\"footnote\" id=\"2\"/> — a use the Court would " "later hold was not \"fair.\" By \"allowing VCR owners to copy freely by the " "means of an exemption from copyright infringementwithout creating a " "mechanism to compensate copyrightowners,\" Valenti testified, Congress would " "\"take from the owners the very essence of their property: the exclusive " "right to control who may use their work, that is, who may copy it and " "thereby profit from its reproduction.\"<placeholder type=\"footnote\" " "id=\"3\"/>" msgstr "" #. f22 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:4030 msgid "" "Universal City Studios, Inc. v. Sony Corp. of America, 659 F. 2d 963 (9th " "Cir. 1981)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:4019 msgid "" "It took eight years for this case to be resolved by the Supreme Court. In " "the interim, the Ninth Circuit Court of Appeals, which includes Hollywood in " "its jurisdiction—leading Judge Alex Kozinski, who sits on that court, " "refers to it as the \"Hollywood Circuit\"—held that Sony would be " "liable for the copyright infringement made possible by its machines. Under " "the Ninth Circuit's rule, this totally familiar technology—which Jack " "Valenti had called \"the Boston Strangler of the American film industry\" " "(worse yet, it was a Japanese Boston Strangler of the American film " "industry)—was an illegal technology.<placeholder type=\"footnote\" " "id=\"0\"/>" msgstr "" #. PAGE BREAK 90 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:4035 msgid "" "But the Supreme Court reversed the decision of the Ninth Circuit. And in " "its reversal, the Court clearly articulated its understanding of when and " "whether courts should intervene in such disputes. As the Court wrote," msgstr "" #. f23 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> #: freeculture.xml:4054 msgid "" "Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 431 " "(1984)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:4044 msgid "" "Sound policy, as well as history, supports our consistent deference to " "Congress when major technological innovations alter the market for " "copyrighted materials. Congress has the constitutional authority and the " "institutional ability to accommodate fully the varied permutations of " "competing interests that are inevitably implicated by such new " "technology.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:4059 msgid "" "Congress was asked to respond to the Supreme Court's decision. But as with " "the plea of recording artists about radio broadcasts, Congress ignored the " "request. Congress was convinced that American film got enough, this " "\"taking\" notwithstanding. If we put these cases together, a pattern is " "clear:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><title> #: freeculture.xml:4068 msgid "Table" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> #: freeculture.xml:4072 msgid "CASE" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> #: freeculture.xml:4073 msgid "WHOSE VALUE WAS \"PIRATED\"" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> #: freeculture.xml:4074 msgid "RESPONSE OF THE COURTS" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> #: freeculture.xml:4075 msgid "RESPONSE OF CONGRESS" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> #: freeculture.xml:4080 msgid "Recordings" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> #: freeculture.xml:4081 msgid "Composers" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> #: freeculture.xml:4082 freeculture.xml:4094 freeculture.xml:4100 msgid "No protection" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> #: freeculture.xml:4083 freeculture.xml:4095 msgid "Statutory license" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> #: freeculture.xml:4087 msgid "Recording artists" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> #: freeculture.xml:4088 msgid "N/A" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> #: freeculture.xml:4089 freeculture.xml:4101 msgid "Nothing" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> #: freeculture.xml:4093 msgid "Broadcasters" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> #: freeculture.xml:4098 msgid "VCR" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> #: freeculture.xml:4099 msgid "Film creators" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:4111 msgid "" "These are the most important instances in our history, but there are other " "cases as well. The technology of digital audio tape (DAT), for example, was " "regulated by Congress to minimize the risk of piracy. The remedy Congress " "imposed did burden DAT producers, by taxing tape sales and controlling the " "technology of DAT. See Audio Home Recording Act of 1992 (Title 17 of the " "United States Code), Pub. L. No. 102-563, 106 Stat. 4237, codified at 17 " "U.S.C. §1001. Again, however, this regulation did not eliminate the " "opportunity for free riding in the sense I've described. See Lessig, Future, " "71. See also Picker, \"From Edison to the Broadcast Flag,\" University of " "Chicago Law Review 70 (2003): 293–96. <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:4108 msgid "" "In each case throughout our history, a new technology changed the way " "content was distributed.<placeholder type=\"footnote\" id=\"0\"/> In each " "case, throughout our history, that change meant that someone got a \"free " "ride\" on someone else's work." msgstr "" #. PAGE BREAK 91 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:4128 msgid "" "In none of these cases did either the courts or Congress eliminate all free " "riding. In none of these cases did the courts or Congress insist that the " "law should assure that the copyright holder get all the value that his " "copyright created. In every case, the copyright owners complained of " "\"piracy.\" In every case, Congress acted to recognize some of the " "legitimacy in the behavior of the \"pirates.\" In each case, Congress " "allowed some new technology to benefit from content made before. It balanced " "the interests at stake." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:4140 msgid "" "When you think across these examples, and the other examples that make up " "the first four chapters of this section, this balance makes sense. Was Walt " "Disney a pirate? Would doujinshi be better if creators had to ask " "permission? Should tools that enable others to capture and spread images as " "a way to cultivate or criticize our culture be better regulated? Is it " "really right that building a search engine should expose you to $15 million " "in damages? Would it have been better if Edison had controlled film? Should " "every cover band have to hire a lawyer to get permission to record a song?" msgstr "" #. f25 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:4157 msgid "Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, (1984)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:4152 msgid "" "We could answer yes to each of these questions, but our tradition has " "answered no. In our tradition, as the Supreme Court has stated, copyright " "\"has never accorded the copyright owner complete control over all possible " "uses of his work.\"<placeholder type=\"footnote\" id=\"0\"/> Instead, the " "particular uses that the law regulates have been defined by balancing the " "good that comes from granting an exclusive right against the burdens such an " "exclusive right creates. And this balancing has historically been done after " "a technology has matured, or settled into the mix of technologies that " "facilitate the distribution of content." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:4169 msgid "" "We should be doing the same thing today. The technology of the Internet is " "changing quickly. The way people connect to the Internet (wires " "vs. wireless) is changing very quickly. No doubt the network should not " "become a tool for \"stealing\" from artists. But neither should the law " "become a tool to entrench one particular way in which artists (or more " "accurately, distributors) get paid. As I describe in some detail in the last " "chapter of this book, we should be securing income to artists while we allow " "the market to secure the most efficient way to promote and distribute " "content. This will require changes in the law, at least in the " "interim. These changes should be designed to balance the protection of the " "law against the strong public interest that innovation continue." msgstr "" #. f26 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:4196 msgid "" "John Schwartz, \"New Economy: The Attack on Peer-to-Peer Software Echoes " "Past Efforts,\" New York Times, 22 September 2003, C3." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:4186 msgid "" "This is especially true when a new technology enables a vastly superior mode " "of distribution. And this p2p has done. P2p technologies can be ideally " "efficient in moving content across a widely diverse network. Left to " "develop, they could make the network vastly more efficient. Yet these " "\"potential public benefits,\" as John Schwartz writes in The New York " "Times, \"could be delayed in the P2P fight.\"<placeholder type=\"footnote\" " "id=\"0\"/> Yet when anyone begins to talk about \"balance,\" the copyright " "warriors raise a different argument. \"All this hand waving about balance " "and incentives,\" they say, \"misses a fundamental point. Our content,\" the " "warriors insist, \"is our property. Why should we wait for Congress to " "`rebalance' our property rights? Do you have to wait before calling the " "police when your car has been stolen? And why should Congress deliberate at " "all about the merits of this theft? Do we ask whether the car thief had a " "good use for the car before we arrest him?\"" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:4210 msgid "" "\"It is our property,\" the warriors insist. \"And it should be protected " "just as any other property is protected.\"" msgstr "" #. type: Content of: <book><chapter><title> #: freeculture.xml:4218 msgid "\"PROPERTY\"" msgstr "" #. PAGE BREAK 94 #. type: Content of: <book><chapter><para> #: freeculture.xml:4222 msgid "" "The copyright warriors are right: A copyright is a kind of property. It can " "be owned and sold, and the law protects against its theft. Ordinarily, the " "copyright owner gets to hold out for any price he wants. Markets reckon the " "supply and demand that partially determine the price she can get." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:4229 msgid "" "But in ordinary language, to call a copyright a \"property\" right is a bit " "misleading, for the property of copyright is an odd kind of property. " "Indeed, the very idea of property in any idea or any expression is very " "odd. I understand what I am taking when I take the picnic table you put in " "your backyard. I am taking a thing, the picnic table, and after I take it, " "you don't have it. But what am I taking when I take the good idea you had to " "put a picnic table in the backyard—by, for example, going to Sears, " "buying a table, and putting it in my backyard? What is the thing I am taking " "then?" msgstr "" #. f1 #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:4254 msgid "" "Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in The " "Writings of Thomas Jefferson, vol. 6 (Andrew A. Lipscomb and Albert Ellery " "Bergh, eds., 1903), 330, 333–34." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:4241 msgid "" "The point is not just about the thingness of picnic tables versus ideas, " "though that's an important difference. The point instead is that in the " "ordinary case—indeed, in practically every case except for a narrow " "range of exceptions—ideas released to the world are free. I don't take " "anything from you when I copy the way you dress—though I might seem " "weird if I did it every day, and especially weird if you are a " "woman. Instead, as Thomas Jefferson said (and as is especially true when I " "copy the way someone else dresses), \"He who receives an idea from me, " "receives instruction himself without lessening mine; as he who lights his " "taper at mine, receives light without darkening me.\"<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:4260 msgid "" "The exceptions to free use are ideas and expressions within the reach of the " "law of patent and copyright, and a few other domains that I won't discuss " "here. Here the law says you can't take my idea or expression without my " "permission: The law turns the intangible into property." msgstr "" #. f2 #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:4275 msgid "" "As the legal realists taught American law, all property rights are " "intangible. A property right is simply a right that an individual has " "against the world to do or not do certain things that may or may not attach " "to a physical object. The right itself is intangible, even if the object to " "which it is (metaphorically) attached is tangible. See Adam Mossoff, \"What " "Is Property? Putting the Pieces Back Together,\" Arizona Law Review 45 " "(2003): 373, 429 n. 241." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:4268 msgid "" "But how, and to what extent, and in what form—the details, in other " "words—matter. To get a good sense of how this practice of turning the " "intangible into property emerged, we need to place this \"property\" in its " "proper context.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:4288 msgid "" "My strategy in doing this will be the same as my strategy in the preceding " "part. I offer four stories to help put the idea of \"copyright material is " "property\" in context. Where did the idea come from? What are its limits? " "How does it function in practice? After these stories, the significance of " "this true statement—\"copyright material is property\"— will be " "a bit more clear, and its implications will be revealed as quite different " "from the implications that the copyright warriors would have us draw." msgstr "" #. type: Content of: <book><chapter><sect1><title> #: freeculture.xml:4302 msgid "CHAPTER SIX: Founders" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4304 msgid "" "William Shakespeare wrote Romeo and Juliet in 1595. The play was first " "published in 1597. It was the eleventh major play that Shakespeare had " "written. He would continue to write plays through 1613, and the plays that " "he wrote have continued to define Anglo-American culture ever since. So " "deeply have the works of a sixteenth-century writer seeped into our culture " "that we often don't even recognize their source. I once overheard someone " "commenting on Kenneth Branagh's adaptation of Henry V: \"I liked it, but " "Shakespeare is so full of clichés.\"" msgstr "" #. f1 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:4320 msgid "" "Jacob Tonson is typically remembered for his associations with prominent " "eighteenth-century literary figures, especially John Dryden, and for his " "handsome \"definitive editions\" of classic works. In addition to Romeo and " "Juliet, he published an astonishing array of works that still remain at the " "heart of the English canon, including collected works of Shakespeare, Ben " "Jonson, John Milton, and John Dryden. See Keith Walker, \"Jacob Tonson, " "Bookseller,\" American Scholar 61:3 (1992): 424–31." msgstr "" #. f2 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:4331 msgid "" "Lyman Ray Patterson, Copyright in Historical Perspective (Nashville: " "Vanderbilt University Press, 1968), 151–52." msgstr "" #. PAGE BREAK 97 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4316 msgid "" "In 1774, almost 180 years after Romeo and Juliet was written, the " "\"copy-right\" for the work was still thought by many to be the exclusive " "right of a single London publisher, Jacob Tonson.<placeholder " "type=\"footnote\" id=\"0\"/> Tonson was the most prominent of a small group " "of publishers called the Conger<placeholder type=\"footnote\" id=\"1\"/> who " "controlled bookselling in England during the eighteenth century. The Conger " "claimed a perpetual right to control the \"copy\" of books that they had " "acquired from authors. That perpetual right meant that no one else could " "publish copies of a book to which they held the copyright. Prices of the " "classics were thus kept high; competition to produce better or cheaper " "editions was eliminated." msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:4353 msgid "" "As Siva Vaidhyanathan nicely argues, it is erroneous to call this a " "\"copyright law.\" See Vaidhyanathan, Copyrights and Copywrongs, 40. " "<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4344 msgid "" "Now, there's something puzzling about the year 1774 to anyone who knows a " "little about copyright law. The better-known year in the history of " "copyright is 1710, the year that the British Parliament adopted the first " "\"copyright\" act. Known as the Statute of Anne, the act stated that all " "published works would get a copyright term of fourteen years, renewable once " "if the author was alive, and that all works already published by 1710 would " "get a single term of twenty-one additional years.<placeholder " "type=\"footnote\" id=\"0\"/> Under this law, Romeo and Juliet should have " "been free in 1731. So why was there any issue about it still being under " "Tonson's control in 1774?" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4361 msgid "" "The reason is that the English hadn't yet agreed on what a \"copyright\" " "was—indeed, no one had. At the time the English passed the Statute of " "Anne, there was no other legislation governing copyrights. The last law " "regulating publishers, the Licensing Act of 1662, had expired in 1695. That " "law gave publishers a monopoly over publishing, as a way to make it easier " "for the Crown to control what was published. But after it expired, there " "was no positive law that said that the publishers, or \"Stationers,\" had an " "exclusive right to print books." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4372 msgid "" "There was no positive law, but that didn't mean that there was no law. The " "Anglo-American legal tradition looks to both the words of legislatures and " "the words of judges to know the rules that are to govern how people are to " "behave. We call the words from legislatures \"positive law.\" We call the " "words from judges \"common law.\" The common law sets the background against " "which legislatures legislate; the legislature, ordinarily, can trump that " "background only if it passes a law to displace it. And so the real question " "after the licensing statutes had expired was whether the common law " "protected a copyright, independent of any positive law." msgstr "" #. PAGE BREAK 98 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4389 msgid "" "This question was important to the publishers, or \"booksellers,\" as they " "were called, because there was growing competition from foreign " "publishers. The Scottish, in particular, were increasingly publishing and " "exporting books to England. That competition reduced the profits of the " "Conger, which reacted by demanding that Parliament pass a law to again give " "them exclusive control over publishing. That demand ultimately resulted in " "the Statute of Anne." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4401 msgid "" "The Statute of Anne granted the author or \"proprietor\" of a book an " "exclusive right to print that book. In an important limitation, however, and " "to the horror of the booksellers, the law gave the bookseller that right for " "a limited term. At the end of that term, the copyright \"expired,\" and the " "work would then be free and could be published by anyone. Or so the " "legislature is thought to have believed." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4411 msgid "" "Now, the thing to puzzle about for a moment is this: Why would Parliament " "limit the exclusive right? Not why would they limit it to the particular " "limit they set, but why would they limit the right at all?" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4416 msgid "" "For the booksellers, and the authors whom they represented, had a very " "strong claim. Take Romeo and Juliet as an example: That play was written by " "Shakespeare. It was his genius that brought it into the world. He didn't " "take anybody's property when he created this play (that's a controversial " "claim, but never mind), and by his creating this play, he didn't make it any " "harder for others to craft a play. So why is it that the law would ever " "allow someone else to come along and take Shakespeare's play without his, or " "his estate's, permission? What reason is there to allow someone else to " "\"steal\" Shakespeare's work?" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4428 msgid "" "The answer comes in two parts. We first need to see something special about " "the notion of \"copyright\" that existed at the time of the Statute of " "Anne. Second, we have to see something important about \"booksellers.\"" msgstr "" #. PAGE BREAK 99 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4435 msgid "" "First, about copyright. In the last three hundred years, we have come to " "apply the concept of \"copyright\" ever more broadly. But in 1710, it wasn't " "so much a concept as it was a very particular right. The copyright was born " "as a very specific set of restrictions: It forbade others from reprinting a " "book. In 1710, the \"copy-right\" was a right to use a particular machine to " "replicate a particular work. It did not go beyond that very narrow right. It " "did not control any more generally how a work could be used. Today the right " "includes a large collection of restrictions on the freedom of others: It " "grants the author the exclusive right to copy, the exclusive right to " "distribute, the exclusive right to perform, and so on." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4452 msgid "" "So, for example, even if the copyright to Shakespeare's works were " "perpetual, all that would have meant under the original meaning of the term " "was that no one could reprint Shakespeare's work without the permission of " "the Shakespeare estate. It would not have controlled anything, for example, " "about how the work could be performed, whether the work could be translated, " "or whether Kenneth Branagh would be allowed to make his films. The " "\"copy-right\" was only an exclusive right to print—no less, of " "course, but also no more." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4464 msgid "" "Even that limited right was viewed with skepticism by the British. They had " "had a long and ugly experience with \"exclusive rights,\" especially " "\"exclusive rights\" granted by the Crown. The English had fought a civil " "war in part about the Crown's practice of handing out " "monopolies—especially monopolies for works that already existed. King " "Henry VIII granted a patent to print the Bible and a monopoly to Darcy to " "print playing cards. The English Parliament began to fight back against this " "power of the Crown. In 1656, it passed the Statute of Monopolies, limiting " "monopolies to patents for new inventions. And by 1710, Parliament was eager " "to deal with the growing monopoly in publishing." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4480 msgid "" "Thus the \"copy-right,\" when viewed as a monopoly right, was naturally " "viewed as a right that should be limited. (However convincing the claim that " "\"it's my property, and I should have it forever,\" try sounding convincing " "when uttering, \"It's my monopoly, and I should have it forever.\") The " "state would protect the exclusive right, but only so long as it benefited " "society. The British saw the harms from specialinterest favors; they passed " "a law to stop them." msgstr "" #. f4 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:4504 msgid "" "Philip Wittenberg, The Protection and Marketing of Literary Property (New " "York: J. Messner, Inc., 1937), 31." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4491 msgid "" "Second, about booksellers. It wasn't just that the copyright was a " "monopoly. It was also that it was a monopoly held by the booksellers. " "Booksellers sound quaint and harmless to us. They were not viewed as " "harmless in seventeenth-century England. Members of the Conger were " "increasingly seen as monopolists of the worst kind—tools of the " "Crown's repression, selling the liberty of England to guarantee themselves a " "monopoly profit. The attacks against these monopolists were harsh: Milton " "described them as \"old patentees and monopolizers in the trade of " "book-selling\"; they were \"men who do not therefore labour in an honest " "profession to which learning is indetted.\"<placeholder type=\"footnote\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4509 msgid "" "Many believed the power the booksellers exercised over the spread of " "knowledge was harming that spread, just at the time the Enlightenment was " "teaching the importance of education and knowledge spread generally. The " "idea that knowledge should be free was a hallmark of the time, and these " "powerful commercial interests were interfering with that idea." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4518 msgid "" "To balance this power, Parliament decided to increase competition among " "booksellers, and the simplest way to do that was to spread the wealth of " "valuable books. Parliament therefore limited the term of copyrights, and " "thereby guaranteed that valuable books would become open to any publisher to " "publish after a limited time. Thus the setting of the term for existing " "works to just twenty-one years was a compromise to fight the power of the " "booksellers. The limitation on terms was an indirect way to assure " "competition among publishers, and thus the construction and spread of " "culture." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4530 msgid "" "When 1731 (1710 + 21) came along, however, the booksellers were getting " "anxious. They saw the consequences of more competition, and like every " "competitor, they didn't like them. At first booksellers simply ignored the " "Statute of Anne, continuing to insist on the perpetual right to control " "publication. But in 1735 and 1737, they tried to persuade Parliament to " "extend their terms. Twenty-one years was not enough, they said; they needed " "more time." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4539 msgid "" "Parliament rejected their requests. As one pamphleteer put it, in words that " "echo today," msgstr "" #. f5 #. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para> #: freeculture.xml:4554 msgid "" "A Letter to a Member of Parliament concerning the Bill now depending in the " "House of Commons, for making more effectual an Act in the Eighth Year of the " "Reign of Queen Anne, entitled, An Act for the Encouragement of Learning, by " "Vesting the Copies of Printed Books in the Authors or Purchasers of such " "Copies, during the Times therein mentioned (London, 1735), in Brief Amici " "Curiae of Tyler T. Ochoa et al., 8, Eldred v. Ashcroft, 537 U.S. 186 (2003) " "(No. 01-618)." msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:4544 msgid "" "I see no Reason for granting a further Term now, which will not hold as well " "for granting it again and again, as often as the Old ones Expire; so that " "should this Bill pass, it will in Effect be establishing a perpetual " "Monopoly, a Thing deservedly odious in the Eye of the Law; it will be a " "great Cramp to Trade, a Discouragement to Learning, no Benefit to the " "Authors, but a general Tax on the Publick; and all this only to increase the " "private Gain of the Booksellers.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4565 msgid "" "Having failed in Parliament, the publishers turned to the courts in a series " "of cases. Their argument was simple and direct: The Statute of Anne gave " "authors certain protections through positive law, but those protections were " "not intended as replacements for the common law. Instead, they were " "intended simply to supplement the common law. Under common law, it was " "already wrong to take another person's creative \"property\" and use it " "without his permission. The Statute of Anne, the booksellers argued, didn't " "change that. Therefore, just because the protections of the Statute of Anne " "expired, that didn't mean the protections of the common law expired: Under " "the common law they had the right to ban the publication of a book, even if " "its Statute of Anne copyright had expired. This, they argued, was the only " "way to protect authors." msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:4586 msgid "" "Lyman Ray Patterson, \"Free Speech, Copyright, and Fair Use,\" Vanderbilt " "Law Review 40 (1987): 28. For a wonderfully compelling account, see " "Vaidhyanathan, 37–48. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4580 msgid "" "This was a clever argument, and one that had the support of some of the " "leading jurists of the day. It also displayed extraordinary chutzpah. Until " "then, as law professor Raymond Patterson has put it, \"The publishers " ". . . had as much concern for authors as a cattle rancher has for " "cattle.\"<placeholder type=\"footnote\" id=\"0\"/> The bookseller didn't " "care squat for the rights of the author. His concern was the monopoly " "profit that the author's work gave." msgstr "" #. f7 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:4599 msgid "" "For a compelling account, see David Saunders, Authorship and Copyright " "(London: Routledge, 1992), 62–69." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4595 msgid "" "The booksellers' argument was not accepted without a fight. The hero of " "this fight was a Scottish bookseller named Alexander Donaldson.<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. f8 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:4609 msgid "" "Mark Rose, Authors and Owners (Cambridge: Harvard University Press, 1993), " "92." msgstr "" #. f9 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:4619 msgid "Ibid., 93." msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:4621 msgid "Erskine, Andrew" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4604 msgid "" "Donaldson was an outsider to the London Conger. He began his career in " "Edinburgh in 1750. The focus of his business was inexpensive reprints \"of " "standard works whose copyright term had expired,\" at least under the " "Statute of Anne.<placeholder type=\"footnote\" id=\"0\"/> Donaldson's " "publishing house prospered and became \"something of a center for literary " "Scotsmen.\" \"[A]mong them,\" Professor Mark Rose writes, was \"the young " "James Boswell who, together with his friend Andrew Erskine, published an " "anthology of contemporary Scottish poems with Donaldson.\"<placeholder " "type=\"footnote\" id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/>" msgstr "" #. f10 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:4630 msgid "" "Lyman Ray Patterson, Copyright in Historical Perspective, 167 (quoting " "Borwell)." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4624 msgid "" "When the London booksellers tried to shut down Donaldson's shop in Scotland, " "he responded by moving his shop to London, where he sold inexpensive " "editions \"of the most popular English books, in defiance of the supposed " "common law right of Literary Property.\"<placeholder type=\"footnote\" " "id=\"0\"/> His books undercut the Conger prices by 30 to 50 percent, and he " "rested his right to compete upon the ground that, under the Statute of Anne, " "the works he was selling had passed out of protection." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4638 msgid "" "The London booksellers quickly brought suit to block \"piracy\" like " "Donaldson's. A number of actions were successful against the \"pirates,\" " "the most important early victory being Millar v. Taylor." msgstr "" #. f11 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:4650 msgid "" "Howard B. Abrams, \"The Historic Foundation of American Copyright Law: " "Exploding the Myth of Common Law Copyright,\" Wayne Law Review 29 (1983): " "1152." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4643 msgid "" "Millar was a bookseller who in 1729 had purchased the rights to James " "Thomson's poem \"The Seasons.\" Millar complied with the requirements of the " "Statute of Anne, and therefore received the full protection of the " "statute. After the term of copyright ended, Robert Taylor began printing a " "competing volume. Millar sued, claiming a perpetual common law right, the " "Statute of Anne notwithstanding.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4659 msgid "" "Astonishingly to modern lawyers, one of the greatest judges in English " "history, Lord Mansfield, agreed with the booksellers. Whatever protection " "the Statute of Anne gave booksellers, it did not, he held, extinguish any " "common law right. The question was whether the common law would protect the " "author against subsequent \"pirates.\" Mansfield's answer was yes: The " "common law would bar Taylor from reprinting Thomson's poem without Millar's " "permission. That common law rule thus effectively gave the booksellers a " "perpetual right to control the publication of any book assigned to them." msgstr "" #. PAGE BREAK 103 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4670 msgid "" "Considered as a matter of abstract justice—reasoning as if justice " "were just a matter of logical deduction from first " "principles—Mansfield's conclusion might make some sense. But what it " "ignored was the larger issue that Parliament had struggled with in 1710: How " "best to limit the monopoly power of publishers? Parliament's strategy was to " "offer a term for existing works that was long enough to buy peace in 1710, " "but short enough to assure that culture would pass into competition within a " "reasonable period of time. Within twenty-one years, Parliament believed, " "Britain would mature from the controlled culture that the Crown coveted to " "the free culture that we inherited." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4685 msgid "" "The fight to defend the limits of the Statute of Anne was not to end there, " "however, and it is here that Donaldson enters the mix." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:4688 msgid "Beckett, Thomas" msgstr "" #. f12 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:4694 msgid "Ibid., 1156." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4690 msgid "" "Millar died soon after his victory, so his case was not appealed. His estate " "sold Thomson's poems to a syndicate of printers that included Thomas " "Beckett.<placeholder type=\"footnote\" id=\"0\"/> Donaldson then released an " "unauthorized edition of Thomson's works. Beckett, on the strength of the " "decision in Millar, got an injunction against Donaldson. Donaldson appealed " "the case to the House of Lords, which functioned much like our own Supreme " "Court. In February of 1774, that body had the chance to interpret the " "meaning of Parliament's limits from sixty years before." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4704 msgid "" "As few legal cases ever do, Donaldson v. Beckett drew an enormous amount of " "attention throughout Britain. Donaldson's lawyers argued that whatever " "rights may have existed under the common law, the Statute of Anne terminated " "those rights. After passage of the Statute of Anne, the only legal " "protection for an exclusive right to control publication came from that " "statute. Thus, they argued, after the term specified in the Statute of Anne " "expired, works that had been protected by the statute were no longer " "protected." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4714 msgid "" "The House of Lords was an odd institution. Legal questions were presented to " "the House and voted upon first by the \"law lords,\" members of special " "legal distinction who functioned much like the Justices in our Supreme " "Court. Then, after the law lords voted, the House of Lords generally voted." msgstr "" #. PAGE BREAK 104 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4721 msgid "" "The reports about the law lords' votes are mixed. On some counts, it looks " "as if perpetual copyright prevailed. But there is no ambiguity about how the " "House of Lords voted as whole. By a two-to-one majority (22 to 11) they " "voted to reject the idea of perpetual copyrights. Whatever one's " "understanding of the common law, now a copyright was fixed for a limited " "time, after which the work protected by copyright passed into the public " "domain." msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:4739 msgid "Bacon, Francis" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:4740 msgid "Bunyan, John" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:4741 msgid "Johnson, Samuel" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:4742 msgid "Milton, John" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:4743 msgid "Shakespeare, William" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4731 msgid "" "\"The public domain.\" Before the case of Donaldson v. Beckett, there was no " "clear idea of a public domain in England. Before 1774, there was a strong " "argument that common law copyrights were perpetual. After 1774, the public " "domain was born. For the first time in Anglo-American history, the legal " "control over creative works expired, and the greatest works in English " "history—including those of Shakespeare, Bacon, Milton, Johnson, and " "Bunyan—were free of legal restraint. <placeholder type=\"indexterm\" " "id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> <placeholder " "type=\"indexterm\" id=\"2\"/> <placeholder type=\"indexterm\" id=\"3\"/> " "<placeholder type=\"indexterm\" id=\"4\"/>" msgstr "" #. f13 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:4756 msgid "Rose, 97." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4746 msgid "" "It is hard for us to imagine, but this decision by the House of Lords fueled " "an extraordinarily popular and political reaction. In Scotland, where most " "of the \"pirate publishers\" did their work, people celebrated the decision " "in the streets. As the Edinburgh Advertiser reported, \"No private cause has " "so much engrossed the attention of the public, and none has been tried " "before the House of Lords in the decision of which so many individuals were " "interested.\" \"Great rejoicing in Edinburgh upon victory over literary " "property: bonfires and illuminations.\"<placeholder type=\"footnote\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4760 msgid "" "In London, however, at least among publishers, the reaction was equally " "strong in the opposite direction. The Morning Chronicle reported:" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:4766 msgid "" "By the above decision . . . near 200,000 pounds worth of what was honestly " "purchased at public sale, and which was yesterday thought property is now " "reduced to nothing. The Booksellers of London and Westminster, many of whom " "sold estates and houses to purchase Copy-right, are in a manner ruined, and " "those who after many years industry thought they had acquired a competency " "to provide for their families now find themselves without a shilling to " "devise to their successors.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. PAGE BREAK 105 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4781 msgid "" "\"Ruined\" is a bit of an exaggeration. But it is not an exaggeration to say " "that the change was profound. The decision of the House of Lords meant that " "the booksellers could no longer control how culture in England would grow " "and develop. Culture in England was thereafter free. Not in the sense that " "copyrights would not be respected, for of course, for a limited time after a " "work was published, the bookseller had an exclusive right to control the " "publication of that book. And not in the sense that books could be stolen, " "for even after a copyright expired, you still had to buy the book from " "someone. But free in the sense that the culture and its growth would no " "longer be controlled by a small group of publishers. As every free market " "does, this free market of free culture would grow as the consumers and " "producers chose. English culture would develop as the many English readers " "chose to let it develop— chose in the books they bought and wrote; " "chose in the memes they repeated and endorsed. Chose in a competitive " "context, not a context in which the choices about what culture is available " "to people and how they get access to it are made by the few despite the " "wishes of the many." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4801 msgid "" "At least, this was the rule in a world where the Parliament is antimonopoly, " "resistant to the protectionist pleas of publishers. In a world where the " "Parliament is more pliant, free culture would be less protected." msgstr "" #. type: Content of: <book><chapter><sect1><title> #: freeculture.xml:4809 msgid "CHAPTER SEVEN: Recorders" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4811 msgid "" "Jon Else is a filmmaker. He is best known for his documentaries and has been " "very successful in spreading his art. He is also a teacher, and as a teacher " "myself, I envy the loyalty and admiration that his students feel for him. (I " "met, by accident, two of his students at a dinner party. He was their god.)" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4818 msgid "" "Else worked on a documentary that I was involved in. At a break, he told me " "a story about the freedom to create with film in America today." msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:4829 freeculture.xml:4898 msgid "San Francisco Opera" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4823 msgid "" "In 1990, Else was working on a documentary about Wagner's Ring Cycle. The " "focus was stagehands at the San Francisco Opera. Stagehands are a " "particularly funny and colorful element of an opera. During a show, they " "hang out below the stage in the grips' lounge and in the lighting loft. They " "make a perfect contrast to the art on the stage. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. PAGE BREAK 107 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4832 msgid "" "During one of the performances, Else was shooting some stagehands playing " "checkers. In one corner of the room was a television set. Playing on the " "television set, while the stagehands played checkers and the opera company " "played Wagner, was The Simpsons. As Else judged it, this touch of cartoon " "helped capture the flavor of what was special about the scene." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4841 msgid "" "Years later, when he finally got funding to complete the film, Else " "attempted to clear the rights for those few seconds of The Simpsons. For of " "course, those few seconds are copyrighted; and of course, to use copyrighted " "material you need the permission of the copyright owner, unless \"fair use\" " "or some other privilege applies." msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:4853 freeculture.xml:4861 msgid "Gracie Films" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4848 msgid "" "Else called Simpsons creator Matt Groening's office to get permission. " "Groening approved the shot. The shot was a four-and-a-halfsecond image on a " "tiny television set in the corner of the room. How could it hurt? Groening " "was happy to have it in the film, but he told Else to contact Gracie Films, " "the company that produces the program. <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4856 msgid "" "Gracie Films was okay with it, too, but they, like Groening, wanted to be " "careful. So they told Else to contact Fox, Gracie's parent company. Else " "called Fox and told them about the clip in the corner of the one room shot " "of the film. Matt Groening had already given permission, Else said. He was " "just confirming the permission with Fox. <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4864 msgid "" "Then, as Else told me, \"two things happened. First we discovered . . . that " "Matt Groening doesn't own his own creation—or at least that someone " "[at Fox] believes he doesn't own his own creation.\" And second, Fox " "\"wanted ten thousand dollars as a licensing fee for us to use this " "four-point-five seconds of . . . entirely unsolicited Simpsons which was in " "the corner of the shot.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4872 msgid "" "Else was certain there was a mistake. He worked his way up to someone he " "thought was a vice president for licensing, Rebecca Herrera. He explained " "to her, \"There must be some mistake here. . . . We're asking for your " "educational rate on this.\" That was the educational rate, Herrera told " "Else. A day or so later, Else called again to confirm what he had been told." msgstr "" #. PAGE BREAK 108 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4880 msgid "" "\"I wanted to make sure I had my facts straight,\" he told me. \"Yes, you " "have your facts straight,\" she said. It would cost $10,000 to use the clip " "of The Simpsons in the corner of a shot in a documentary film about Wagner's " "Ring Cycle. And then, astonishingly, Herrera told Else, \"And if you quote " "me, I'll turn you over to our attorneys.\" As an assistant to Herrera told " "Else later on, \"They don't give a shit. They just want the money.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:4899 msgid "Day After Trinity, The" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4892 msgid "" "Else didn't have the money to buy the right to replay what was playing on " "the television backstage at the San Francisco Opera. To reproduce this " "reality was beyond the documentary filmmaker's budget. At the very last " "minute before the film was to be released, Else digitally replaced the shot " "with a clip from another film that he had worked on, The Day After Trinity, " "from ten years before. <placeholder type=\"indexterm\" id=\"0\"/> " "<placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4902 msgid "" "There's no doubt that someone, whether Matt Groening or Fox, owns the " "copyright to The Simpsons. That copyright is their property. To use that " "copyrighted material thus sometimes requires the permission of the copyright " "owner. If the use that Else wanted to make of the Simpsons copyright were " "one of the uses restricted by the law, then he would need to get the " "permission of the copyright owner before he could use the work in that " "way. And in a free market, it is the owner of the copyright who gets to set " "the price for any use that the law says the owner gets to control." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4913 msgid "" "For example, \"public performance\" is a use of The Simpsons that the " "copyright owner gets to control. If you take a selection of favorite " "episodes, rent a movie theater, and charge for tickets to come see \"My " "Favorite Simpsons,\" then you need to get permission from the copyright " "owner. And the copyright owner (rightly, in my view) can charge whatever she " "wants—$10 or $1,000,000. That's her right, as set by the law." msgstr "" #. f1 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:4925 msgid "" "For an excellent argument that such use is \"fair use,\" but that lawyers " "don't permit recognition that it is \"fair use,\" see Richard A. Posner with " "William F. Patry, \"Fair Use and Statutory Reform in the Wake of Eldred \" " "(draft on file with author), University of Chicago Law School, 5 August " "2003." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4922 msgid "" "But when lawyers hear this story about Jon Else and Fox, their first thought " "is \"fair use.\"<placeholder type=\"footnote\" id=\"0\"/> Else's use of just " "4.5 seconds of an indirect shot of a Simpsons episode is clearly a fair use " "of The Simpsons—and fair use does not require the permission of " "anyone." msgstr "" #. PAGE BREAK 109 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4937 msgid "So I asked Else why he didn't just rely upon \"fair use.\" Here's his reply:" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:4941 msgid "" "The Simpsons fiasco was for me a great lesson in the gulf between what " "lawyers find irrelevant in some abstract sense, and what is crushingly " "relevant in practice to those of us actually trying to make and broadcast " "documentaries. I never had any doubt that it was \"clearly fair use\" in an " "absolute legal sense. But I couldn't rely on the concept in any concrete " "way. Here's why:" msgstr "" #. 1. #. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para> #: freeculture.xml:4951 msgid "" "Before our films can be broadcast, the network requires that we buy Errors " "and Omissions insurance. The carriers require a detailed \"visual cue " "sheet\" listing the source and licensing status of each shot in the " "film. They take a dim view of \"fair use,\" and a claim of \"fair use\" can " "grind the application process to a halt." msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para><indexterm><primary> #: freeculture.xml:4968 msgid "Lucas, George" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para> #: freeculture.xml:4959 msgid "" "I probably never should have asked Matt Groening in the first place. But I " "knew (at least from folklore) that Fox had a history of tracking down and " "stopping unlicensed Simpsons usage, just as George Lucas had a very high " "profile litigating Star Wars usage. So I decided to play by the book, " "thinking that we would be granted free or cheap license to four seconds of " "Simpsons. As a documentary producer working to exhaustion on a shoestring, " "the last thing I wanted was to risk legal trouble, even nuisance legal " "trouble, and even to defend a principle. <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. 3. #. PAGE BREAK 110 #. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para> #: freeculture.xml:4972 msgid "" "I did, in fact, speak with one of your colleagues at Stanford Law School " ". . . who confirmed that it was fair use. He also confirmed that Fox would " "\"depose and litigate you to within an inch of your life,\" regardless of " "the merits of my claim. He made clear that it would boil down to who had the " "bigger legal department and the deeper pockets, me or them." msgstr "" #. 4. #. type: Content of: <book><chapter><sect1><blockquote><orderedlist><listitem><para> #: freeculture.xml:4982 msgid "" "The question of fair use usually comes up at the end of the project, when we " "are up against a release deadline and out of money." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4989 msgid "" "In theory, fair use means you need no permission. The theory therefore " "supports free culture and insulates against a permission culture. But in " "practice, fair use functions very differently. The fuzzy lines of the law, " "tied to the extraordinary liability if lines are crossed, means that the " "effective fair use for many types of creators is slight. The law has the " "right aim; practice has defeated the aim." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:4997 msgid "" "This practice shows just how far the law has come from its " "eighteenth-century roots. The law was born as a shield to protect " "publishers' profits against the unfair competition of a pirate. It has " "matured into a sword that interferes with any use, transformative or not." msgstr "" #. type: Content of: <book><chapter><sect1><title> #: freeculture.xml:5006 msgid "CHAPTER EIGHT: Transformers" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:5007 msgid "Allen, Paul" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:5008 freeculture.xml:5016 freeculture.xml:5027 freeculture.xml:5042 freeculture.xml:5051 freeculture.xml:5056 freeculture.xml:5108 freeculture.xml:5124 freeculture.xml:5147 freeculture.xml:5209 freeculture.xml:9571 msgid "Alben, Alex" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5010 msgid "" "In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave was an " "innovative company founded by Microsoft cofounder Paul Allen to develop " "digital entertainment. Long before the Internet became popular, Starwave " "began investing in new technology for delivering entertainment in " "anticipation of the power of networks." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5018 msgid "" "Alben had a special interest in new technology. He was intrigued by the " "emerging market for CD-ROM technology—not to distribute film, but to " "do things with film that otherwise would be very difficult. In 1993, he " "launched an initiative to develop a product to build retrospectives on the " "work of particular actors. The first actor chosen was Clint Eastwood. The " "idea was to showcase all of the work of Eastwood, with clips from his films " "and interviews with figures important to his career." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5029 msgid "" "At that time, Eastwood had made more than fifty films, as an actor and as a " "director. Alben began with a series of interviews with Eastwood, asking him " "about his career. Because Starwave produced those interviews, it was free to " "include them on the CD." msgstr "" #. PAGE BREAK 112 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5036 msgid "" "That alone would not have made a very interesting product, so Starwave " "wanted to add content from the movies in Eastwood's career: posters, " "scripts, and other material relating to the films Eastwood made. Most of his " "career was spent at Warner Brothers, and so it was relatively easy to get " "permission for that content." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5044 msgid "" "Then Alben and his team decided to include actual film clips. \"Our goal was " "that we were going to have a clip from every one of Eastwood's films,\" " "Alben told me. It was here that the problem arose. \"No one had ever really " "done this before,\" Alben explained. \"No one had ever tried to do this in " "the context of an artistic look at an actor's career.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5053 msgid "" "Alben brought the idea to Michael Slade, the CEO of Starwave. Slade asked, " "\"Well, what will it take?\"" msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary> #: freeculture.xml:5069 msgid "artists" msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><secondary> #: freeculture.xml:5070 msgid "publicity rights on images of" msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:5064 msgid "" "Technically, the rights that Alben had to clear were mainly those of " "publicity—rights an artist has to control the commercial exploitation " "of his image. But these rights, too, burden \"Rip, Mix, Burn\" creativity, " "as this chapter evinces. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5058 msgid "" "Alben replied, \"Well, we're going to have to clear rights from everyone who " "appears in these films, and the music and everything else that we want to " "use in these film clips.\" Slade said, \"Great! Go for it.\"<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5075 msgid "" "The problem was that neither Alben nor Slade had any idea what clearing " "those rights would mean. Every actor in each of the films could have a claim " "to royalties for the reuse of that film. But CD- ROMs had not been specified " "in the contracts for the actors, so there was no clear way to know just what " "Starwave was to do." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5082 msgid "" "I asked Alben how he dealt with the problem. With an obvious pride in his " "resourcefulness that obscured the obvious bizarreness of his tale, Alben " "recounted just what they did:" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:5088 msgid "" "So we very mechanically went about looking up the film clips. We made some " "artistic decisions about what film clips to include—of course we were " "going to use the \"Make my day\" clip from Dirty Harry. But you then need to " "get the guy on the ground who's wiggling under the gun and you need to get " "his permission. And then you have to decide what you are going to pay him." msgstr "" #. PAGE BREAK 113 #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:5097 msgid "" "We decided that it would be fair if we offered them the dayplayer rate for " "the right to reuse that performance. We're talking about a clip of less than " "a minute, but to reuse that performance in the CD-ROM the rate at the time " "was about $600. So we had to identify the people—some of them were " "hard to identify because in Eastwood movies you can't tell who's the guy " "crashing through the glass—is it the actor or is it the stuntman? And " "then we just, we put together a team, my assistant and some others, and we " "just started calling people." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5110 msgid "" "Some actors were glad to help—Donald Sutherland, for example, followed " "up himself to be sure that the rights had been cleared. Others were " "dumbfounded at their good fortune. Alben would ask, \"Hey, can I pay you " "$600 or maybe if you were in two films, you know, $1,200?\" And they would " "say, \"Are you for real? Hey, I'd love to get $1,200.\" And some of course " "were a bit difficult (estranged ex-wives, in particular). But eventually, " "Alben and his team had cleared the rights to this retrospective CD-ROM on " "Clint Eastwood's career." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5121 msgid "" "It was one year later—\"and even then we weren't sure whether we were " "totally in the clear.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5126 msgid "" "Alben is proud of his work. The project was the first of its kind and the " "only time he knew of that a team had undertaken such a massive project for " "the purpose of releasing a retrospective." msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:5132 msgid "" "Everyone thought it would be too hard. Everyone just threw up their hands " "and said, \"Oh, my gosh, a film, it's so many copyrights, there's the music, " "there's the screenplay, there's the director, there's the actors.\" But we " "just broke it down. We just put it into its constituent parts and said, " "\"Okay, there's this many actors, this many directors, . . . this many " "musicians,\" and we just went at it very systematically and cleared the " "rights." msgstr "" #. PAGE BREAK 114 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5144 msgid "" "And no doubt, the product itself was exceptionally good. Eastwood loved it, " "and it sold very well." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:5148 msgid "Drucker, Peter" msgstr "" #. f2 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:5156 msgid "" "U.S. Department of Commerce Office of Acquisition Management, Seven Steps to " "Performance-Based Services Acquisition, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #22</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5150 msgid "" "But I pressed Alben about how weird it seems that it would have to take a " "year's work simply to clear rights. No doubt Alben had done this " "efficiently, but as Peter Drucker has famously quipped, \"There is nothing " "so useless as doing efficiently that which should not be done at " "all.\"<placeholder type=\"footnote\" id=\"0\"/> Did it make sense, I asked " "Alben, that this is the way a new work has to be made?" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5164 msgid "" "For, as he acknowledged, \"very few . . . have the time and resources, and " "the will to do this,\" and thus, very few such works would ever be " "made. Does it make sense, I asked him, from the standpoint of what anybody " "really thought they were ever giving rights for originally, that you would " "have to go clear rights for these kinds of clips?" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:5172 msgid "" "I don't think so. When an actor renders a performance in a movie, he or she " "gets paid very well. . . . And then when 30 seconds of that performance is " "used in a new product that is a retrospective of somebody's career, I don't " "think that that person . . . should be compensated for that." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5180 msgid "" "Or at least, is this how the artist should be compensated? Would it make " "sense, I asked, for there to be some kind of statutory license that someone " "could pay and be free to make derivative use of clips like this? Did it " "really make sense that a follow-on creator would have to track down every " "artist, actor, director, musician, and get explicit permission from each? " "Wouldn't a lot more be created if the legal part of the creative process " "could be made to be more clean?" msgstr "" #. PAGE BREAK 115 #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:5190 msgid "" "Absolutely. I think that if there were some fair-licensing " "mechanism—where you weren't subject to hold-ups and you weren't " "subject to estranged former spouses—you'd see a lot more of this work, " "because it wouldn't be so daunting to try to put together a retrospective of " "someone's career and meaningfully illustrate it with lots of media from that " "person's career. You'd build in a cost as the producer of one of these " "things. You'd build in a cost of paying X dollars to the talent that " "performed. But it would be a known cost. That's the thing that trips " "everybody up and makes this kind of product hard to get off the ground. If " "you knew I have a hundred minutes of film in this product and it's going to " "cost me X, then you build your budget around it, and you can get investments " "and everything else that you need to produce it. But if you say, \"Oh, I " "want a hundred minutes of something and I have no idea what it's going to " "cost me, and a certain number of people are going to hold me up for money,\" " "then it becomes difficult to put one of these things together." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5211 msgid "" "Alben worked for a big company. His company was backed by some of the " "richest investors in the world. He therefore had authority and access that " "the average Web designer would not have. So if it took him a year, how long " "would it take someone else? And how much creativity is never made just " "because the costs of clearing the rights are so high? These costs are the " "burdens of a kind of regulation. Put on a Republican hat for a moment, and " "get angry for a bit. The government defines the scope of these rights, and " "the scope defined determines how much it's going to cost to negotiate " "them. (Remember the idea that land runs to the heavens, and imagine the " "pilot purchasing flythrough rights as he negotiates to fly from Los Angeles " "to San Francisco.) These rights might well have once made sense; but as " "circumstances change, they make no sense at all. Or at least, a " "well-trained, regulationminimizing Republican should look at the rights and " "ask, \"Does this still make sense?\"" msgstr "" #. PAGE BREAK 116 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5228 msgid "" "I've seen the flash of recognition when people get this point, but only a " "few times. The first was at a conference of federal judges in California. " "The judges were gathered to discuss the emerging topic of cyber-law. I was " "asked to be on the panel. Harvey Saferstein, a well-respected lawyer from an " "L.A. firm, introduced the panel with a video that he and a friend, Robert " "Fairbank, had produced." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5238 msgid "" "The video was a brilliant collage of film from every period in the twentieth " "century, all framed around the idea of a 60 Minutes episode. The execution " "was perfect, down to the sixty-minute stopwatch. The judges loved every " "minute of it." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:5243 msgid "Nimmer, David" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5245 msgid "" "When the lights came up, I looked over to my copanelist, David Nimmer, " "perhaps the leading copyright scholar and practitioner in the nation. He had " "an astonished look on his face, as he peered across the room of over 250 " "well-entertained judges. Taking an ominous tone, he began his talk with a " "question: \"Do you know how many federal laws were just violated in this " "room?\"" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:5252 msgid "Boies, David" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5254 msgid "" "For of course, the two brilliantly talented creators who made this film " "hadn't done what Alben did. They hadn't spent a year clearing the rights to " "these clips; technically, what they had done violated the law. Of course, " "it wasn't as if they or anyone were going to be prosecuted for this " "violation (the presence of 250 judges and a gaggle of federal marshals " "notwithstanding). But Nimmer was making an important point: A year before " "anyone would have heard of the word Napster, and two years before another " "member of our panel, David Boies, would defend Napster before the Ninth " "Circuit Court of Appeals, Nimmer was trying to get the judges to see that " "the law would not be friendly to the capacities that this technology would " "enable. Technology means you can now do amazing things easily; but you " "couldn't easily do them legally." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5269 msgid "" "We live in a \"cut and paste\" culture enabled by technology. Anyone " "building a presentation knows the extraordinary freedom that the cut and " "paste architecture of the Internet created—in a second you can find " "just about any image you want; in another second, you can have it planted in " "your presentation." msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:5285 msgid "Camp Chaos" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5276 msgid "" "But presentations are just a tiny beginning. Using the Internet and its " "archives, musicians are able to string together mixes of sound never before " "imagined; filmmakers are able to build movies out of clips on computers " "around the world. An extraordinary site in Sweden takes images of " "politicians and blends them with music to create biting political " "commentary. A site called Camp Chaos has produced some of the most biting " "criticism of the record industry that there is through the mixing of Flash! " "and music. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5288 msgid "" "All of these creations are technically illegal. Even if the creators wanted " "to be \"legal,\" the cost of complying with the law is impossibly " "high. Therefore, for the law-abiding sorts, a wealth of creativity is never " "made. And for that part that is made, if it doesn't follow the clearance " "rules, it doesn't get released." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5295 msgid "" "To some, these stories suggest a solution: Let's alter the mix of rights so " "that people are free to build upon our culture. Free to add or mix as they " "see fit. We could even make this change without necessarily requiring that " "the \"free\" use be free as in \"free beer.\" Instead, the system could " "simply make it easy for follow-on creators to compensate artists without " "requiring an army of lawyers to come along: a rule, for example, that says " "\"the royalty owed the copyright owner of an unregistered work for the " "derivative reuse of his work will be a flat 1 percent of net revenues, to be " "held in escrow for the copyright owner.\" Under this rule, the copyright " "owner could benefit from some royalty, but he would not have the benefit of " "a full property right (meaning the right to name his own price) unless he " "registers the work." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5310 msgid "" "Who could possibly object to this? And what reason would there be for " "objecting? We're talking about work that is not now being made; which if " "made, under this plan, would produce new income for artists. What reason " "would anyone have to oppose it?" msgstr "" #. PAGE BREAK 118 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5316 msgid "" "In February 2003, DreamWorks studios announced an agreement with Mike Myers, " "the comic genius of Saturday Night Live and Austin Powers. According to the " "announcement, Myers and Dream-Works would work together to form a \"unique " "filmmaking pact.\" Under the agreement, DreamWorks \"will acquire the rights " "to existing motion picture hits and classics, write new storylines " "and—with the use of stateof-the-art digital technology—insert " "Myers and other actors into the film, thereby creating an entirely new piece " "of entertainment.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5328 msgid "" "The announcement called this \"film sampling.\" As Myers explained, \"Film " "Sampling is an exciting way to put an original spin on existing films and " "allow audiences to see old movies in a new light. Rap artists have been " "doing this for years with music and now we are able to take that same " "concept and apply it to film.\" Steven Spielberg is quoted as saying, \"If " "anyone can create a way to bring old films to new audiences, it is Mike.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5337 msgid "" "Spielberg is right. Film sampling by Myers will be brilliant. But if you " "don't think about it, you might miss the truly astonishing point about this " "announcement. As the vast majority of our film heritage remains under " "copyright, the real meaning of the DreamWorks announcement is just this: It " "is Mike Myers and only Mike Myers who is free to sample. Any general freedom " "to build upon the film archive of our culture, a freedom in other contexts " "presumed for us all, is now a privilege reserved for the funny and " "famous—and presumably rich." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5347 msgid "" "This privilege becomes reserved for two sorts of reasons. The first " "continues the story of the last chapter: the vagueness of \"fair use.\" Much " "of \"sampling\" should be considered \"fair use.\" But few would rely upon " "so weak a doctrine to create. That leads to the second reason that the " "privilege is reserved for the few: The costs of negotiating the legal rights " "for the creative reuse of content are astronomically high. These costs " "mirror the costs with fair use: You either pay a lawyer to defend your fair " "use rights or pay a lawyer to track down permissions so you don't have to " "rely upon fair use rights. Either way, the creative process is a process of " "paying lawyers—again a privilege, or perhaps a curse, reserved for the " "few." msgstr "" #. type: Content of: <book><chapter><sect1><title> #: freeculture.xml:5362 msgid "CHAPTER NINE: Collectors" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5364 msgid "" "In April 1996, millions of \"bots\"—computer codes designed to " "\"spider,\" or automatically search the Internet and copy " "content—began running across the Net. Page by page, these bots copied " "Internet-based information onto a small set of computers located in a " "basement in San Francisco's Presidio. Once the bots finished the whole of " "the Internet, they started again. Over and over again, once every two " "months, these bits of code took copies of the Internet and stored them." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5373 msgid "" "By October 2001, the bots had collected more than five years of copies. And " "at a small announcement in Berkeley, California, the archive that these " "copies created, the Internet Archive, was opened to the world. Using a " "technology called \"the Way Back Machine,\" you could enter a Web page, and " "see all of its copies going back to 1996, as well as when those pages " "changed." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5381 msgid "" "This is the thing about the Internet that Orwell would have appreciated. In " "the dystopia described in 1984, old newspapers were constantly updated to " "assure that the current view of the world, approved of by the government, " "was not contradicted by previous news reports." msgstr "" #. PAGE BREAK 120 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5389 msgid "" "Thousands of workers constantly reedited the past, meaning there was no way " "ever to know whether the story you were reading today was the story that was " "printed on the date published on the paper." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5394 msgid "" "It's the same with the Internet. If you go to a Web page today, there's no " "way for you to know whether the content you are reading is the same as the " "content you read before. The page may seem the same, but the content could " "easily be different. The Internet is Orwell's library—constantly " "updated, without any reliable memory." msgstr "" #. f1 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:5407 msgid "" "The temptations remain, however. Brewster Kahle reports that the White House " "changes its own press releases without notice. A May 13, 2003, press release " "stated, \"Combat Operations in Iraq Have Ended.\" That was later changed, " "without notice, to \"Major Combat Operations in Iraq Have Ended.\" E-mail " "from Brewster Kahle, 1 December 2003." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5401 msgid "" "Until the Way Back Machine, at least. With the Way Back Machine, and the " "Internet Archive underlying it, you can see what the Internet was. You have " "the power to see what you remember. More importantly, perhaps, you also have " "the power to find what you don't remember and what others might prefer you " "forget.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5415 msgid "" "We take it for granted that we can go back to see what we remember " "reading. Think about newspapers. If you wanted to study the reaction of your " "hometown newspaper to the race riots in Watts in 1965, or to Bull Connor's " "water cannon in 1963, you could go to your public library and look at the " "newspapers. Those papers probably exist on microfiche. If you're lucky, they " "exist in paper, too. Either way, you are free, using a library, to go back " "and remember—not just what it is convenient to remember, but remember " "something close to the truth." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5426 msgid "" "It is said that those who fail to remember history are doomed to repeat " "it. That's not quite correct. We all forget history. The key is whether we " "have a way to go back to rediscover what we forget. More directly, the key " "is whether an objective past can keep us honest. Libraries help do that, by " "collecting content and keeping it, for schoolchildren, for researchers, for " "grandma. A free society presumes this knowedge." msgstr "" #. PAGE BREAK 121 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5435 msgid "" "The Internet was an exception to this presumption. Until the Internet " "Archive, there was no way to go back. The Internet was the quintessentially " "transitory medium. And yet, as it becomes more important in forming and " "reforming society, it becomes more and more important to maintain in some " "historical form. It's just bizarre to think that we have scads of archives " "of newspapers from tiny towns around the world, yet there is but one copy of " "the Internet—the one kept by the Internet Archive." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5446 msgid "" "Brewster Kahle is the founder of the Internet Archive. He was a very " "successful Internet entrepreneur after he was a successful computer " "researcher. In the 1990s, Kahle decided he had had enough business " "success. It was time to become a different kind of success. So he launched " "a series of projects designed to archive human knowledge. The Internet " "Archive was just the first of the projects of this Andrew Carnegie of the " "Internet. By December of 2002, the archive had over 10 billion pages, and it " "was growing at about a billion pages a month." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5456 msgid "" "The Way Back Machine is the largest archive of human knowledge in human " "history. At the end of 2002, it held \"two hundred and thirty terabytes of " "material\"—and was \"ten times larger than the Library of Congress.\" " "And this was just the first of the archives that Kahle set out to build. In " "addition to the Internet Archive, Kahle has been constructing the Television " "Archive. Television, it turns out, is even more ephemeral than the " "Internet. While much of twentieth-century culture was constructed through " "television, only a tiny proportion of that culture is available for anyone " "to see today. Three hours of news are recorded each evening by Vanderbilt " "University—thanks to a specific exemption in the copyright law. That " "content is indexed, and is available to scholars for a very low fee. \"But " "other than that, [television] is almost unavailable,\" Kahle told me. \"If " "you were Barbara Walters you could get access to [the archives], but if you " "are just a graduate student?\" As Kahle put it," msgstr "" #. PAGE BREAK 122 #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:5474 msgid "" "Do you remember when Dan Quayle was interacting with Murphy Brown? Remember " "that back and forth surreal experience of a politician interacting with a " "fictional television character? If you were a graduate student wanting to " "study that, and you wanted to get those original back and forth exchanges " "between the two, the 60 Minutes episode that came out after it . . . it " "would be almost impossible. . . . Those materials are almost " "unfindable. . . ." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5486 msgid "" "Why is that? Why is it that the part of our culture that is recorded in " "newspapers remains perpetually accessible, while the part that is recorded " "on videotape is not? How is it that we've created a world where researchers " "trying to understand the effect of media on nineteenthcentury America will " "have an easier time than researchers trying to understand the effect of " "media on twentieth-century America?" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5494 msgid "" "In part, this is because of the law. Early in American copyright law, " "copyright owners were required to deposit copies of their work in " "libraries. These copies were intended both to facilitate the spread of " "knowledge and to assure that a copy of the work would be around once the " "copyright expired, so that others might access and copy the work." msgstr "" #. f2 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:5511 msgid "" "Doug Herrick, \"Toward a National Film Collection: Motion Pictures at the " "Library of Congress,\" Film Library Quarterly 13 nos. 2–3 (1980): 5; " "Anthony Slide, Nitrate Won't Wait: A History of Film Preservation in the " "United States ( Jefferson, N.C.: McFarland & Co., 1992), 36." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5502 msgid "" "These rules applied to film as well. But in 1915, the Library of Congress " "made an exception for film. Film could be copyrighted so long as such " "deposits were made. But the filmmaker was then allowed to borrow back the " "deposits—for an unlimited time at no cost. In 1915 alone, there were " "more than 5,475 films deposited and \"borrowed back.\" Thus, when the " "copyrights to films expire, there is no copy held by any library. The copy " "exists—if it exists at all—in the library archive of the film " "company.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5519 msgid "" "The same is generally true about television. Television broadcasts were " "originally not copyrighted—there was no way to capture the broadcasts, " "so there was no fear of \"theft.\" But as technology enabled capturing, " "broadcasters relied increasingly upon the law. The law required they make a " "copy of each broadcast for the work to be \"copyrighted.\" But those copies " "were simply kept by the broadcasters. No library had any right to them; the " "government didn't demand them. The content of this part of American culture " "is practically invisible to anyone who would look." msgstr "" #. PAGE BREAK 123 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5530 msgid "" "Kahle was eager to correct this. Before September 11, 2001, he and his " "allies had started capturing television. They selected twenty stations from " "around the world and hit the Record button. After September 11, Kahle, " "working with dozens of others, selected twenty stations from around the " "world and, beginning October 11, 2001, made their coverage during the week " "of September 11 available free on-line. Anyone could see how news reports " "from around the world covered the events of that day." msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:5557 msgid "Movie Archive" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5541 msgid "" "Kahle had the same idea with film. Working with Rick Prelinger, whose " "archive of film includes close to 45,000 \"ephemeral films\" (meaning films " "other than Hollywood movies, films that were never copyrighted), Kahle " "established the Movie Archive. Prelinger let Kahle digitize 1,300 films in " "this archive and post those films on the Internet to be downloaded for " "free. Prelinger's is a for-profit company. It sells copies of these films as " "stock footage. What he has discovered is that after he made a significant " "chunk available for free, his stock footage sales went up " "dramatically. People could easily find the material they wanted to use. Some " "downloaded that material and made films on their own. Others purchased " "copies to enable other films to be made. Either way, the archive enabled " "access to this important part of our culture. Want to see a copy of the " "\"Duck and Cover\" film that instructed children how to save themselves in " "the middle of nuclear attack? Go to archive.org, and you can download the " "film in a few minutes—for free. <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5560 msgid "" "Here again, Kahle is providing access to a part of our culture that we " "otherwise could not get easily, if at all. It is yet another part of what " "defines the twentieth century that we have lost to history. The law doesn't " "require these copies to be kept by anyone, or to be deposited in an archive " "by anyone. Therefore, there is no simple way to find them." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5568 msgid "" "The key here is access, not price. Kahle wants to enable free access to this " "content, but he also wants to enable others to sell access to it. His aim is " "to ensure competition in access to this important part of our culture. Not " "during the commercial life of a bit of creative property, but during a " "second life that all creative property has—a noncommercial life." msgstr "" #. PAGE BREAK 124 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5576 msgid "" "For here is an idea that we should more clearly recognize. Every bit of " "creative property goes through different \"lives.\" In its first life, if " "the creator is lucky, the content is sold. In such cases the commercial " "market is successful for the creator. The vast majority of creative property " "doesn't enjoy such success, but some clearly does. For that content, " "commercial life is extremely important. Without this commercial market, " "there would be, many argue, much less creativity." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5588 msgid "" "After the commercial life of creative property has ended, our tradition has " "always supported a second life as well. A newspaper delivers the news every " "day to the doorsteps of America. The very next day, it is used to wrap fish " "or to fill boxes with fragile gifts or to build an archive of knowledge " "about our history. In this second life, the content can continue to inform " "even if that information is no longer sold." msgstr "" #. f3 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:5600 msgid "" "Dave Barns, \"Fledgling Career in Antique Books: Woodstock Landlord, Bar " "Owner Starts a New Chapter by Adopting Business,\" Chicago Tribune, 5 " "September 1997, at Metro Lake 1L. Of books published between 1927 and 1946, " "only 2.2 percent were in print in 2002. R. Anthony Reese, \"The First Sale " "Doctrine in the Era of Digital Networks,\" Boston College Law Review 44 " "(2003): 593 n. 51." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5597 msgid "" "The same has always been true about books. A book goes out of print very " "quickly (the average today is after about a year<placeholder " "type=\"footnote\" id=\"0\"/>). After it is out of print, it can be sold in " "used book stores without the copyright owner getting anything and stored in " "libraries, where many get to read the book, also for free. Used book stores " "and libraries are thus the second life of a book. That second life is " "extremely important to the spread and stability of culture." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5614 msgid "" "Yet increasingly, any assumption about a stable second life for creative " "property does not hold true with the most important components of popular " "culture in the twentieth and twenty-first centuries. For " "these—television, movies, music, radio, the Internet—there is no " "guarantee of a second life. For these sorts of culture, it is as if we've " "replaced libraries with Barnes & Noble superstores. With this culture, " "what's accessible is nothing but what a certain limited market demands. " "Beyond that, culture disappears." msgstr "" #. PAGE BREAK 125 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5625 msgid "" "For most of the twentieth century, it was economics that made this so. It " "would have been insanely expensive to collect and make accessible all " "television and film and music: The cost of analog copies is extraordinarily " "high. So even though the law in principle would have restricted the ability " "of a Brewster Kahle to copy culture generally, the real restriction was " "economics. The market made it impossibly difficult to do anything about this " "ephemeral culture; the law had little practical effect." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5637 msgid "" "Perhaps the single most important feature of the digital revolution is that " "for the first time since the Library of Alexandria, it is feasible to " "imagine constructing archives that hold all culture produced or distributed " "publicly. Technology makes it possible to imagine an archive of all books " "published, and increasingly makes it possible to imagine an archive of all " "moving images and sound." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5645 msgid "" "The scale of this potential archive is something we've never imagined " "before. The Brewster Kahles of our history have dreamed about it; but we are " "for the first time at a point where that dream is possible. As Kahle " "describes," msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:5652 msgid "" "It looks like there's about two to three million recordings of music. " "Ever. There are about a hundred thousand theatrical releases of movies, " ". . . and about one to two million movies [distributed] during the twentieth " "century. There are about twenty-six million different titles of books. All " "of these would fit on computers that would fit in this room and be able to " "be afforded by a small company. So we're at a turning point in our " "history. Universal access is the goal. And the opportunity of leading a " "different life, based on this, is . . . thrilling. It could be one of the " "things humankind would be most proud of. Up there with the Library of " "Alexandria, putting a man on the moon, and the invention of the printing " "press." msgstr "" #. PAGE BREAK 126 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5666 msgid "" "Kahle is not the only librarian. The Internet Archive is not the only " "archive. But Kahle and the Internet Archive suggest what the future of " "libraries or archives could be. When the commercial life of creative " "property ends, I don't know. But it does. And whenever it does, Kahle and " "his archive hint at a world where this knowledge, and culture, remains " "perpetually available. Some will draw upon it to understand it; some to " "criticize it. Some will use it, as Walt Disney did, to re-create the past " "for the future. These technologies promise something that had become " "unimaginable for much of our past—a future for our past. The " "technology of digital arts could make the dream of the Library of Alexandria " "real again." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5681 msgid "" "Technologists have thus removed the economic costs of building such an " "archive. But lawyers' costs remain. For as much as we might like to call " "these \"archives,\" as warm as the idea of a \"library\" might seem, the " "\"content\" that is collected in these digital spaces is also someone's " "\"property.\" And the law of property restricts the freedoms that Kahle and " "others would exercise." msgstr "" #. type: Content of: <book><chapter><sect1><title> #: freeculture.xml:5691 msgid "CHAPTER TEN: \"Property\"" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:5700 msgid "Johnson, Lyndon" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5693 msgid "" "Jack Valenti has been the president of the Motion Picture Association of " "America since 1966. He first came to Washington, D.C., with Lyndon Johnson's " "administration—literally. The famous picture of Johnson's swearing-in " "on Air Force One after the assassination of President Kennedy has Valenti in " "the background. In his almost forty years of running the MPAA, Valenti has " "established himself as perhaps the most prominent and effective lobbyist in " "Washington. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:5713 msgid "Disney, Inc." msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:5714 msgid "Sony Pictures Entertainment" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:5715 msgid "MGM" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:5716 msgid "Paramount Pictures" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:5717 msgid "Twentieth Century Fox" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:5718 msgid "Universal Pictures" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:5719 msgid "Warner Brothers" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5703 msgid "" "The MPAA is the American branch of the international Motion Picture " "Association. It was formed in 1922 as a trade association whose goal was to " "defend American movies against increasing domestic criticism. The " "organization now represents not only filmmakers but producers and " "distributors of entertainment for television, video, and cable. Its board is " "made up of the chairmen and presidents of the seven major producers and " "distributors of motion picture and television programs in the United States: " "Walt Disney, Sony Pictures Entertainment, MGM, Paramount Pictures, Twentieth " "Century Fox, Universal Studios, and Warner Brothers. <placeholder " "type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> " "<placeholder type=\"indexterm\" id=\"2\"/> <placeholder type=\"indexterm\" " "id=\"3\"/> <placeholder type=\"indexterm\" id=\"4\"/> <placeholder " "type=\"indexterm\" id=\"5\"/> <placeholder type=\"indexterm\" id=\"6\"/>" msgstr "" #. PAGE BREAK 128 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5723 msgid "" "Valenti is only the third president of the MPAA. No president before him has " "had as much influence over that organization, or over Washington. As a " "Texan, Valenti has mastered the single most important political skill of a " "Southerner—the ability to appear simple and slow while hiding a " "lightning-fast intellect. To this day, Valenti plays the simple, humble " "man. But this Harvard MBA, and author of four books, who finished high " "school at the age of fifteen and flew more than fifty combat missions in " "World War II, is no Mr. Smith. When Valenti went to Washington, he mastered " "the city in a quintessentially Washingtonian way." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5735 msgid "" "In defending artistic liberty and the freedom of speech that our culture " "depends upon, the MPAA has done important good. In crafting the MPAA rating " "system, it has probably avoided a great deal of speech-regulating harm. But " "there is an aspect to the organization's mission that is both the most " "radical and the most important. This is the organization's effort, " "epitomized in Valenti's every act, to redefine the meaning of \"creative " "property.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5744 msgid "In 1982, Valenti's testimony to Congress captured the strategy perfectly:" msgstr "" #. f1 #. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para> #: freeculture.xml:5758 msgid "" "Home Recording of Copyrighted Works: Hearings on H.R. 4783, H.R. 4794, " "H.R. 4808, H.R. 5250, H.R. 5488, and H.R. 5705 Before the Subcommittee on " "Courts, Civil Liberties, and the Administration of Justice of the Committee " "on the Judiciary of the House of Representatives, 97th Cong., 2nd " "sess. (1982): 65 (testimony of Jack Valenti)." msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:5749 msgid "" "No matter the lengthy arguments made, no matter the charges and the " "counter-charges, no matter the tumult and the shouting, reasonable men and " "women will keep returning to the fundamental issue, the central theme which " "animates this entire debate: Creative property owners must be accorded the " "same rights and protection resident in all other property owners in the " "nation. That is the issue. That is the question. And that is the rostrum on " "which this entire hearing and the debates to follow must rest.<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. PAGE BREAK 129 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5768 msgid "" "The strategy of this rhetoric, like the strategy of most of Valenti's " "rhetoric, is brilliant and simple and brilliant because simple. The " "\"central theme\" to which \"reasonable men and women\" will return is this: " "\"Creative property owners must be accorded the same rights and protections " "resident in all other property owners in the nation.\" There are no " "second-class citizens, Valenti might have continued. There should be no " "second-class property owners." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5779 msgid "" "This claim has an obvious and powerful intuitive pull. It is stated with " "such clarity as to make the idea as obvious as the notion that we use " "elections to pick presidents. But in fact, there is no more extreme a claim " "made by anyone who is serious in this debate than this claim of " "Valenti's. Jack Valenti, however sweet and however brilliant, is perhaps the " "nation's foremost extremist when it comes to the nature and scope of " "\"creative property.\" His views have no reasonable connection to our actual " "legal tradition, even if the subtle pull of his Texan charm has slowly " "redefined that tradition, at least in Washington." msgstr "" #. f2 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:5794 msgid "" "Lawyers speak of \"property\" not as an absolute thing, but as a bundle of " "rights that are sometimes associated with a particular object. Thus, my " "\"property right\" to my car gives me the right to exclusive use, but not " "the right to drive at 150 miles an hour. For the best effort to connect the " "ordinary meaning of \"property\" to \"lawyer talk,\" see Bruce Ackerman, " "Private Property and the Constitution (New Haven: Yale University Press, " "1977), 26–27." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5791 msgid "" "While \"creative property\" is certainly \"property\" in a nerdy and precise " "sense that lawyers are trained to understand,<placeholder type=\"footnote\" " "id=\"0\"/> it has never been the case, nor should it be, that \"creative " "property owners\" have been \"accorded the same rights and protection " "resident in all other property owners.\" Indeed, if creative property owners " "were given the same rights as all other property owners, that would effect a " "radical, and radically undesirable, change in our tradition." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5809 msgid "" "Valenti knows this. But he speaks for an industry that cares squat for our " "tradition and the values it represents. He speaks for an industry that is " "instead fighting to restore the tradition that the British overturned in " "1710. In the world that Valenti's changes would create, a powerful few would " "exercise powerful control over how our creative culture would develop." msgstr "" #. PAGE BREAK 130 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5817 msgid "" "I have two purposes in this chapter. The first is to convince you that, " "historically, Valenti's claim is absolutely wrong. The second is to convince " "you that it would be terribly wrong for us to reject our history. We have " "always treated rights in creative property differently from the rights " "resident in all other property owners. They have never been the same. And " "they should never be the same, because, however counterintuitive this may " "seem, to make them the same would be to fundamentally weaken the opportunity " "for new creators to create. Creativity depends upon the owners of " "creativity having less than perfect control." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5832 msgid "" "Organizations such as the MPAA, whose board includes the most powerful of " "the old guard, have little interest, their rhetoric notwithstanding, in " "assuring that the new can displace them. No organization does. No person " "does. (Ask me about tenure, for example.) But what's good for the MPAA is " "not necessarily good for America. A society that defends the ideals of free " "culture must preserve precisely the opportunity for new creativity to " "threaten the old. To get just a hint that there is something fundamentally " "wrong in Valenti's argument, we need look no further than the United States " "Constitution itself." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5844 msgid "" "The framers of our Constitution loved \"property.\" Indeed, so strongly did " "they love property that they built into the Constitution an important " "requirement. If the government takes your property—if it condemns your " "house, or acquires a slice of land from your farm—it is required, " "under the Fifth Amendment's \"Takings Clause,\" to pay you \"just " "compensation\" for that taking. The Constitution thus guarantees that " "property is, in a certain sense, sacred. It cannot ever be taken from the " "property owner unless the government pays for the privilege." msgstr "" #. PAGE BREAK 131 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5855 msgid "" "Yet the very same Constitution speaks very differently about what Valenti " "calls \"creative property.\" In the clause granting Congress the power to " "create \"creative property,\" the Constitution requires that after a " "\"limited time,\" Congress take back the rights that it has granted and set " "the \"creative property\" free to the public domain. Yet when Congress does " "this, when the expiration of a copyright term \"takes\" your copyright and " "turns it over to the public domain, Congress does not have any obligation to " "pay \"just compensation\" for this \"taking.\" Instead, the same " "Constitution that requires compensation for your land requires that you lose " "your \"creative property\" right without any compensation at all." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5870 msgid "" "The Constitution thus on its face states that these two forms of property " "are not to be accorded the same rights. They are plainly to be treated " "differently. Valenti is therefore not just asking for a change in our " "tradition when he argues that creative-property owners should be accorded " "the same rights as every other property-right owner. He is effectively " "arguing for a change in our Constitution itself." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5879 msgid "" "Arguing for a change in our Constitution is not necessarily wrong. There " "was much in our original Constitution that was plainly wrong. The " "Constitution of 1789 entrenched slavery; it left senators to be appointed " "rather than elected; it made it possible for the electoral college to " "produce a tie between the president and his own vice president (as it did in " "1800). The framers were no doubt extraordinary, but I would be the first to " "admit that they made big mistakes. We have since rejected some of those " "mistakes; no doubt there could be others that we should reject as well. So " "my argument is not simply that because Jefferson did it, we should, too." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5891 msgid "" "Instead, my argument is that because Jefferson did it, we should at least " "try to understand why. Why did the framers, fanatical property types that " "they were, reject the claim that creative property be given the same rights " "as all other property? Why did they require that for creative property there " "must be a public domain?" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5898 msgid "" "To answer this question, we need to get some perspective on the history of " "these \"creative property\" rights, and the control that they enabled. Once " "we see clearly how differently these rights have been defined, we will be in " "a better position to ask the question that should be at the core of this " "war: Not whether creative property should be protected, but how. Not whether " "we will enforce the rights the law gives to creative-property owners, but " "what the particular mix of rights ought to be. Not whether artists should be " "paid, but whether institutions designed to assure that artists get paid need " "also control how culture develops." msgstr "" #. PAGE BREAK 132 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5912 msgid "" "To answer these questions, we need a more general way to talk about how " "property is protected. More precisely, we need a more general way than the " "narrow language of the law allows. In Code and Other Laws of Cyberspace, I " "used a simple model to capture this more general perspective. For any " "particular right or regulation, this model asks how four different " "modalities of regulation interact to support or weaken the right or " "regulation. I represented it with this diagram:" msgstr "" #. type: Content of: <book><chapter><sect1><figure><title> #: freeculture.xml:5921 msgid "" "How four different modalities of regulation interact to support or weaken " "the right or regulation." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> #: freeculture.xml:5922 freeculture.xml:6097 freeculture.xml:6398 msgid "<graphic fileref=\"images/1331.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5925 msgid "" "At the center of this picture is a regulated dot: the individual or group " "that is the target of regulation, or the holder of a right. (In each case " "throughout, we can describe this either as regulation or as a right. For " "simplicity's sake, I will speak only of regulations.) The ovals represent " "four ways in which the individual or group might be regulated— either " "constrained or, alternatively, enabled. Law is the most obvious constraint " "(to lawyers, at least). It constrains by threatening punishments after the " "fact if the rules set in advance are violated. So if, for example, you " "willfully infringe Madonna's copyright by copying a song from her latest CD " "and posting it on the Web, you can be punished with a $150,000 fine. The " "fine is an ex post punishment for violating an ex ante rule. It is imposed " "by the state. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5942 msgid "" "Norms are a different kind of constraint. They, too, punish an individual " "for violating a rule. But the punishment of a norm is imposed by a " "community, not (or not only) by the state. There may be no law against " "spitting, but that doesn't mean you won't be punished if you spit on the " "ground while standing in line at a movie. The punishment might not be harsh, " "though depending upon the community, it could easily be more harsh than many " "of the punishments imposed by the state. The mark of the difference is not " "the severity of the rule, but the source of the enforcement." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5953 msgid "" "The market is a third type of constraint. Its constraint is effected through " "conditions: You can do X if you pay Y; you'll be paid M if you do N. These " "constraints are obviously not independent of law or norms—it is " "property law that defines what must be bought if it is to be taken legally; " "it is norms that say what is appropriately sold. But given a set of norms, " "and a background of property and contract law, the market imposes a " "simultaneous constraint upon how an individual or group might behave." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5963 msgid "" "Finally, and for the moment, perhaps, most mysteriously, " "\"architecture\"—the physical world as one finds it—is a " "constraint on behavior. A fallen bridge might constrain your ability to get " "across a river. Railroad tracks might constrain the ability of a community " "to integrate its social life. As with the market, architecture does not " "effect its constraint through ex post punishments. Instead, also as with the " "market, architecture effects its constraint through simultaneous " "conditions. These conditions are imposed not by courts enforcing contracts, " "or by police punishing theft, but by nature, by \"architecture.\" If a " "500-pound boulder blocks your way, it is the law of gravity that enforces " "this constraint. If a $500 airplane ticket stands between you and a flight " "to New York, it is the market that enforces this constraint." msgstr "" #. PAGE BREAK 134 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5980 msgid "" "So the first point about these four modalities of regulation is obvious: " "They interact. Restrictions imposed by one might be reinforced by " "another. Or restrictions imposed by one might be undermined by another." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5986 msgid "" "The second point follows directly: If we want to understand the effective " "freedom that anyone has at a given moment to do any particular thing, we " "have to consider how these four modalities interact. Whether or not there " "are other constraints (there may well be; my claim is not about " "comprehensiveness), these four are among the most significant, and any " "regulator (whether controlling or freeing) must consider how these four in " "particular interact." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:5995 msgid "driving speed, constraints on" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:5998 msgid "" "So, for example, consider the \"freedom\" to drive a car at a high " "speed. That freedom is in part restricted by laws: speed limits that say how " "fast you can drive in particular places at particular times. It is in part " "restricted by architecture: speed bumps, for example, slow most rational " "drivers; governors in buses, as another example, set the maximum rate at " "which the driver can drive. The freedom is in part restricted by the market: " "Fuel efficiency drops as speed increases, thus the price of gasoline " "indirectly constrains speed. And finally, the norms of a community may or " "may not constrain the freedom to speed. Drive at 50 mph by a school in your " "own neighborhood and you're likely to be punished by the neighbors. The same " "norm wouldn't be as effective in a different town, or at night." msgstr "" #. f3 #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:6016 msgid "" "By describing the way law affects the other three modalities, I don't mean " "to suggest that the other three don't affect law. Obviously, they do. Law's " "only distinction is that it alone speaks as if it has a right " "self-consciously to change the other three. The right of the other three is " "more timidly expressed. See Lawrence Lessig, Code: And Other Laws of " "Cyberspace (New York: Basic Books, 1999): 90–95; Lawrence Lessig, " "\"The New Chicago School,\" Journal of Legal Studies, June 1998." msgstr "" #. PAGE BREAK 135 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:6012 msgid "" "The final point about this simple model should also be fairly clear: While " "these four modalities are analytically independent, law has a special role " "in affecting the three.<placeholder type=\"footnote\" id=\"0\"/> The law, in " "other words, sometimes operates to increase or decrease the constraint of a " "particular modality. Thus, the law might be used to increase taxes on " "gasoline, so as to increase the incentives to drive more slowly. The law " "might be used to mandate more speed bumps, so as to increase the difficulty " "of driving rapidly. The law might be used to fund ads that stigmatize " "reckless driving. Or the law might be used to require that other laws be " "more strict—a federal requirement that states decrease the speed " "limit, for example—so as to decrease the attractiveness of fast " "driving." msgstr "" #. type: Content of: <book><chapter><sect1><figure><title> #: freeculture.xml:6040 msgid "Law has a special role in affecting the three." msgstr "" #. type: Content of: <book><chapter><sect1><figure> #: freeculture.xml:6041 msgid "<graphic fileref=\"images/1361.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para><indexterm><primary> #: freeculture.xml:6080 msgid "Commons, John R." msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:6052 msgid "" "Some people object to this way of talking about \"liberty.\" They object " "because their focus when considering the constraints that exist at any " "particular moment are constraints imposed exclusively by the government. For " "instance, if a storm destroys a bridge, these people think it is meaningless " "to say that one's liberty has been restrained. A bridge has washed out, and " "it's harder to get from one place to another. To talk about this as a loss " "of freedom, they say, is to confuse the stuff of politics with the vagaries " "of ordinary life. I don't mean to deny the value in this narrower view, " "which depends upon the context of the inquiry. I do, however, mean to argue " "against any insistence that this narrower view is the only proper view of " "liberty. As I argued in Code, we come from a long tradition of political " "thought with a broader focus than the narrow question of what the government " "did when. John Stuart Mill defended freedom of speech, for example, from " "the tyranny of narrow minds, not from the fear of government prosecution; " "John Stuart Mill, On Liberty (Indiana: Hackett Publishing Co., 1978), 19. " "John R. Commons famously defended the economic freedom of labor from " "constraints imposed by the market; John R. Commons, \"The Right to Work,\" " "in Malcom Rutherford and Warren J. Samuels, eds., John R. Commons: Selected " "Essays (London: Routledge: 1997), 62. The Americans with Disabilities Act " "increases the liberty of people with physical disabilities by changing the " "architecture of certain public places, thereby making access to those places " "easier; 42 United States Code, section 12101 (2000). Each of these " "interventions to change existing conditions changes the liberty of a " "particular group. The effect of those interventions should be accounted for " "in order to understand the effective liberty that each of these groups might " "face. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:6044 msgid "" "These constraints can thus change, and they can be changed. To understand " "the effective protection of liberty or protection of property at any " "particular moment, we must track these changes over time. A restriction " "imposed by one modality might be erased by another. A freedom enabled by one " "modality might be displaced by another.<placeholder type=\"footnote\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:6084 msgid "Why Hollywood Is Right" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6086 msgid "" "The most obvious point that this model reveals is just why, or just how, " "Hollywood is right. The copyright warriors have rallied Congress and the " "courts to defend copyright. This model helps us see why that rallying makes " "sense." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6092 msgid "Let's say this is the picture of copyright's regulation before the Internet:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> #: freeculture.xml:6096 freeculture.xml:6397 msgid "Copyright's regulation before the Internet." msgstr "" #. PAGE BREAK 136 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6101 msgid "" "There is balance between law, norms, market, and architecture. The law " "limits the ability to copy and share content, by imposing penalties on those " "who copy and share content. Those penalties are reinforced by technologies " "that make it hard to copy and share content (architecture) and expensive to " "copy and share content (market). Finally, those penalties are mitigated by " "norms we all recognize—kids, for example, taping other kids' " "records. These uses of copyrighted material may well be infringement, but " "the norms of our society (before the Internet, at least) had no problem with " "this form of infringement." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6113 msgid "" "Enter the Internet, or, more precisely, technologies such as MP3s and p2p " "sharing. Now the constraint of architecture changes dramatically, as does " "the constraint of the market. And as both the market and architecture relax " "the regulation of copyright, norms pile on. The happy balance (for the " "warriors, at least) of life before the Internet becomes an effective state " "of anarchy after the Internet." msgstr "" #. PAGE BREAK 137 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6121 msgid "" "Thus the sense of, and justification for, the warriors' response. " "Technology has changed, the warriors say, and the effect of this change, " "when ramified through the market and norms, is that a balance of protection " "for the copyright owners' rights has been lost. This is Iraq after the fall " "of Saddam, but this time no government is justifying the looting that " "results." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> #: freeculture.xml:6131 msgid "effective state of anarchy after the Internet." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> #: freeculture.xml:6132 msgid "<graphic fileref=\"images/1381.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6135 msgid "" "Neither this analysis nor the conclusions that follow are new to the " "warriors. Indeed, in a \"White Paper\" prepared by the Commerce Department " "(one heavily influenced by the copyright warriors) in 1995, this mix of " "regulatory modalities had already been identified and the strategy to " "respond already mapped. In response to the changes the Internet had " "effected, the White Paper argued (1) Congress should strengthen intellectual " "property law, (2) businesses should adopt innovative marketing techniques, " "(3) technologists should push to develop code to protect copyrighted " "material, and (4) educators should educate kids to better protect copyright." msgstr "" #. PAGE BREAK 138 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6147 msgid "" "This mixed strategy is just what copyright needed—if it was to " "preserve the particular balance that existed before the change induced by " "the Internet. And it's just what we should expect the content industry to " "push for. It is as American as apple pie to consider the happy life you have " "as an entitlement, and to look to the law to protect it if something comes " "along to change that happy life. Homeowners living in a flood plain have no " "hesitation appealing to the government to rebuild (and rebuild again) when a " "flood (architecture) wipes away their property (law). Farmers have no " "hesitation appealing to the government to bail them out when a virus " "(architecture) devastates their crop. Unions have no hesitation appealing to " "the government to bail them out when imports (market) wipe out the " "U.S. steel industry." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6164 msgid "" "Thus, there's nothing wrong or surprising in the content industry's campaign " "to protect itself from the harmful consequences of a technological " "innovation. And I would be the last person to argue that the changing " "technology of the Internet has not had a profound effect on the content " "industry's way of doing business, or as John Seely Brown describes it, its " "\"architecture of revenue.\"" msgstr "" #. f5 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:6180 msgid "" "See Geoffrey Smith, \"Film vs. Digital: Can Kodak Build a Bridge?\" " "BusinessWeek online, 2 August 1999, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #23</ulink>. For a more recent " "analysis of Kodak's place in the market, see Chana R. Schoenberger, \"Can " "Kodak Make Up for Lost Moments?\" Forbes.com, 6 October 2003, available at " "<ulink url=\"http://free-culture.cc/notes/\">link #24</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6172 msgid "" "But just because a particular interest asks for government support, it " "doesn't follow that support should be granted. And just because technology " "has weakened a particular way of doing business, it doesn't follow that the " "government should intervene to support that old way of doing " "business. Kodak, for example, has lost perhaps as much as 20 percent of " "their traditional film market to the emerging technologies of digital " "cameras.<placeholder type=\"footnote\" id=\"0\"/> Does anyone believe the " "government should ban digital cameras just to support Kodak? Highways have " "weakened the freight business for railroads. Does anyone think we should ban " "trucks from roads for the purpose of protecting the railroads? Closer to the " "subject of this book, remote channel changers have weakened the " "\"stickiness\" of television advertising (if a boring commercial comes on " "the TV, the remote makes it easy to surf ), and it may well be that this " "change has weakened the television advertising market. But does anyone " "believe we should regulate remotes to reinforce commercial television? " "(Maybe by limiting them to function only once a second, or to switch to only " "ten channels within an hour?)" msgstr "" #. f6 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:6212 msgid "Fred Warshofsky, The Patent Wars (New York: Wiley, 1994), 170–71." msgstr "" #. type: Content of: <book><chapter><para><indexterm><primary> #: freeculture.xml:6221 freeculture.xml:12601 msgid "Gates, Bill" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6202 msgid "" "The obvious answer to these obviously rhetorical questions is no. In a free " "society, with a free market, supported by free enterprise and free trade, " "the government's role is not to support one way of doing business against " "others. Its role is not to pick winners and protect them against loss. If " "the government did this generally, then we would never have any progress. As " "Microsoft chairman Bill Gates wrote in 1991, in a memo criticizing software " "patents, \"established companies have an interest in excluding future " "competitors.\"<placeholder type=\"footnote\" id=\"0\"/> And relative to a " "startup, established companies also have the means. (Think RCA and FM " "radio.) A world in which competitors with new ideas must fight not only the " "market but also the government is a world in which competitors with new " "ideas will not succeed. It is a world of stasis and increasingly " "concentrated stagnation. It is the Soviet Union under Brezhnev. " "<placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6224 msgid "" "Thus, while it is understandable for industries threatened with new " "technologies that change the way they do business to look to the government " "for protection, it is the special duty of policy makers to guarantee that " "that protection not become a deterrent to progress. It is the duty of policy " "makers, in other words, to assure that the changes they create, in response " "to the request of those hurt by changing technology, are changes that " "preserve the incentives and opportunities for innovation and change." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6234 msgid "" "In the context of laws regulating speech—which include, obviously, " "copyright law—that duty is even stronger. When the industry " "complaining about changing technologies is asking Congress to respond in a " "way that burdens speech and creativity, policy makers should be especially " "wary of the request. It is always a bad deal for the government to get into " "the business of regulating speech markets. The risks and dangers of that " "game are precisely why our framers created the First Amendment to our " "Constitution: \"Congress shall make no law . . . abridging the freedom of " "speech.\" So when Congress is being asked to pass laws that would " "\"abridge\" the freedom of speech, it should ask— " "carefully—whether such regulation is justified." msgstr "" #. PAGE BREAK 140 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6248 msgid "" "My argument just now, however, has nothing to do with whether the changes " "that are being pushed by the copyright warriors are \"justified.\" My " "argument is about their effect. For before we get to the question of " "justification, a hard question that depends a great deal upon your values, " "we should first ask whether we understand the effect of the changes the " "content industry wants." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6257 msgid "Here's the metaphor that will capture the argument to follow." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:6260 msgid "DDT" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> #: freeculture.xml:6268 msgid "Müller, Paul Hermann" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6263 msgid "" "In 1873, the chemical DDT was first synthesized. In 1948, Swiss chemist Paul " "Hermann Müller won the Nobel Prize for his work demonstrating the " "insecticidal properties of DDT. By the 1950s, the insecticide was widely " "used around the world to kill disease-carrying pests. It was also used to " "increase farm production. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6271 msgid "" "No one doubts that killing disease-carrying pests or increasing crop " "production is a good thing. No one doubts that the work of Müller was " "important and valuable and probably saved lives, possibly millions." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> #: freeculture.xml:6275 freeculture.xml:6281 msgid "Carson, Rachel" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> #: freeculture.xml:6282 msgid "Silent Sprint (Carson)" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6277 msgid "" "But in 1962, Rachel Carson published Silent Spring, which argued that DDT, " "whatever its primary benefits, was also having unintended environmental " "consequences. Birds were losing the ability to reproduce. Whole chains of " "the ecology were being destroyed. <placeholder type=\"indexterm\" " "id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6285 msgid "" "No one set out to destroy the environment. Paul Müller certainly did not aim " "to harm any birds. But the effort to solve one set of problems produced " "another set which, in the view of some, was far worse than the problems that " "were originally attacked. Or more accurately, the problems DDT caused were " "worse than the problems it solved, at least when considering the other, more " "environmentally friendly ways to solve the problems that DDT was meant to " "solve." msgstr "" #. f7 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:6298 msgid "" "See, for example, James Boyle, \"A Politics of Intellectual Property: " "Environmentalism for the Net?\" Duke Law Journal 47 (1997): 87." msgstr "" #. PAGE BREAK 141 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6294 msgid "" "It is to this image precisely that Duke University law professor James Boyle " "appeals when he argues that we need an \"environmentalism\" for " "culture.<placeholder type=\"footnote\" id=\"0\"/> His point, and the point I " "want to develop in the balance of this chapter, is not that the aims of " "copyright are flawed. Or that authors should not be paid for their work. Or " "that music should be given away \"for free.\" The point is that some of the " "ways in which we might protect authors will have unintended consequences for " "the cultural environment, much like DDT had for the natural environment. And " "just as criticism of DDT is not an endorsement of malaria or an attack on " "farmers, so, too, is criticism of one particular set of regulations " "protecting copyright not an endorsement of anarchy or an attack on authors. " "It is an environment of creativity that we seek, and we should be aware of " "our actions' effects on the environment." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6315 msgid "" "My argument, in the balance of this chapter, tries to map exactly this " "effect. No doubt the technology of the Internet has had a dramatic effect on " "the ability of copyright owners to protect their content. But there should " "also be little doubt that when you add together the changes in copyright law " "over time, plus the change in technology that the Internet is undergoing " "just now, the net effect of these changes will not be only that copyrighted " "work is effectively protected. Also, and generally missed, the net effect of " "this massive increase in protection will be devastating to the environment " "for creativity." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6326 msgid "" "In a line: To kill a gnat, we are spraying DDT with consequences for free " "culture that will be far more devastating than that this gnat will be lost." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:6333 msgid "Beginnings" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6335 msgid "" "America copied English copyright law. Actually, we copied and improved " "English copyright law. Our Constitution makes the purpose of \"creative " "property\" rights clear; its express limitations reinforce the English aim " "to avoid overly powerful publishers." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6341 msgid "" "The power to establish \"creative property\" rights is granted to Congress " "in a way that, for our Constitution, at least, is very odd. Article I, " "section 8, clause 8 of our Constitution states that:" msgstr "" #. PAGE BREAK 142 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6346 msgid "" "Congress has the power to promote the Progress of Science and useful Arts, " "by securing for limited Times to Authors and Inventors the exclusive Right " "to their respective Writings and Discoveries. We can call this the " "\"Progress Clause,\" for notice what this clause does not say. It does not " "say Congress has the power to grant \"creative property rights.\" It says " "that Congress has the power to promote progress. The grant of power is its " "purpose, and its purpose is a public one, not the purpose of enriching " "publishers, nor even primarily the purpose of rewarding authors." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6359 msgid "" "The Progress Clause expressly limits the term of copyrights. As we saw in " "chapter 6, the English limited the term of copyright so as to assure that a " "few would not exercise disproportionate control over culture by exercising " "disproportionate control over publishing. We can assume the framers followed " "the English for a similar purpose. Indeed, unlike the English, the framers " "reinforced that objective, by requiring that copyrights extend \"to " "Authors\" only." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6368 msgid "" "The design of the Progress Clause reflects something about the " "Constitution's design in general. To avoid a problem, the framers built " "structure. To prevent the concentrated power of publishers, they built a " "structure that kept copyrights away from publishers and kept them short. To " "prevent the concentrated power of a church, they banned the federal " "government from establishing a church. To prevent concentrating power in the " "federal government, they built structures to reinforce the power of the " "states—including the Senate, whose members were at the time selected " "by the states, and an electoral college, also selected by the states, to " "select the president. In each case, a structure built checks and balances " "into the constitutional frame, structured to prevent otherwise inevitable " "concentrations of power." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6383 msgid "" "I doubt the framers would recognize the regulation we call \"copyright\" " "today. The scope of that regulation is far beyond anything they ever " "considered. To begin to understand what they did, we need to put our " "\"copyright\" in context: We need to see how it has changed in the 210 years " "since they first struck its design." msgstr "" #. PAGE BREAK 143 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6390 msgid "" "Some of these changes come from the law: some in light of changes in " "technology, and some in light of changes in technology given a particular " "concentration of market power. In terms of our model, we started here:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6401 msgid "We will end here:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> #: freeculture.xml:6404 msgid ""Copyright" today." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> #: freeculture.xml:6405 msgid "<graphic fileref=\"images/1442.png\"></graphic>" msgstr "" #. PAGE BREAK 144 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6408 msgid "Let me explain how." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:6413 msgid "Law: Duration" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> #: freeculture.xml:6428 msgid "Crosskey, William W." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:6423 msgid "" "William W. Crosskey, Politics and the Constitution in the History of the " "United States (London: Cambridge University Press, 1953), vol. 1, " "485–86: \"extinguish[ing], by plain implication of `the supreme Law of " "the Land,' the perpetual rights which authors had, or were supposed by some " "to have, under the Common Law\" (emphasis added). <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6415 msgid "" "When the first Congress enacted laws to protect creative property, it faced " "the same uncertainty about the status of creative property that the English " "had confronted in 1774. Many states had passed laws protecting creative " "property, and some believed that these laws simply supplemented common law " "rights that already protected creative authorship.<placeholder " "type=\"footnote\" id=\"0\"/> This meant that there was no guaranteed public " "domain in the United States in 1790. If copyrights were protected by the " "common law, then there was no simple way to know whether a work published in " "the United States was controlled or free. Just as in England, this lingering " "uncertainty would make it hard for publishers to rely upon a public domain " "to reprint and distribute works." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6438 msgid "" "That uncertainty ended after Congress passed legislation granting " "copyrights. Because federal law overrides any contrary state law, federal " "protections for copyrighted works displaced any state law protections. Just " "as in England the Statute of Anne eventually meant that the copyrights for " "all English works expired, a federal statute meant that any state copyrights " "expired as well." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6446 msgid "" "In 1790, Congress enacted the first copyright law. It created a federal " "copyright and secured that copyright for fourteen years. If the author was " "alive at the end of that fourteen years, then he could opt to renew the " "copyright for another fourteen years. If he did not renew the copyright, his " "work passed into the public domain." msgstr "" #. f9 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:6461 msgid "" "Although 13,000 titles were published in the United States from 1790 to " "1799, only 556 copyright registrations were filed; John Tebbel, A History of " "Book Publishing in the United States, vol. 1, The Creation of an Industry, " "1630–1865 (New York: Bowker, 1972), 141. Of the 21,000 imprints " "recorded before 1790, only twelve were copyrighted under the 1790 act; " "William J. Maher, Copyright Term, Retrospective Extension and the Copyright " "Law of 1790 in Historical Context, 7–10 (2002), available at <ulink " "url=\"http://free-culture.cc/notes/\">link #25</ulink>. Thus, the " "overwhelming majority of works fell immediately into the public domain. Even " "those works that were copyrighted fell into the public domain quickly, " "because the term of copyright was short. The initial term of copyright was " "fourteen years, with the option of renewal for an additional fourteen " "years. Copyright Act of May 31, 1790, §1, 1 stat. 124." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6453 msgid "" "While there were many works created in the United States in the first ten " "years of the Republic, only 5 percent of the works were actually registered " "under the federal copyright regime. Of all the work created in the United " "States both before 1790 and from 1790 through 1800, 95 percent immediately " "passed into the public domain; the balance would pass into the pubic domain " "within twenty-eight years at most, and more likely within fourteen " "years.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. PAGE BREAK 145 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6477 msgid "" "This system of renewal was a crucial part of the American system of " "copyright. It assured that the maximum terms of copyright would be granted " "only for works where they were wanted. After the initial term of fourteen " "years, if it wasn't worth it to an author to renew his copyright, then it " "wasn't worth it to society to insist on the copyright, either." msgstr "" #. f10 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:6492 msgid "" "Few copyright holders ever chose to renew their copyrights. For instance, of " "the 25,006 copyrights registered in 1883, only 894 were renewed in 1910. For " "a year-by-year analysis of copyright renewal rates, see Barbara A. Ringer, " "\"Study No. 31: Renewal of Copyright,\" Studies on Copyright, vol. 1 (New " "York: Practicing Law Institute, 1963), 618. For a more recent and " "comprehensive analysis, see William M. Landes and Richard A. Posner, " "\"Indefinitely Renewable Copyright,\" University of Chicago Law Review 70 " "(2003): 471, 498–501, and accompanying figures." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6486 msgid "" "Fourteen years may not seem long to us, but for the vast majority of " "copyright owners at that time, it was long enough: Only a small minority of " "them renewed their copyright after fourteen years; the balance allowed their " "work to pass into the public domain.<placeholder type=\"footnote\" " "id=\"0\"/>" msgstr "" #. f11 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:6507 msgid "See Ringer, ch. 9, n. 2." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6503 msgid "" "Even today, this structure would make sense. Most creative work has an " "actual commercial life of just a couple of years. Most books fall out of " "print after one year.<placeholder type=\"footnote\" id=\"0\"/> When that " "happens, the used books are traded free of copyright regulation. Thus the " "books are no longer effectively controlled by copyright. The only practical " "commercial use of the books at that time is to sell the books as used books; " "that use—because it does not involve publication—is effectively " "free." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6515 msgid "" "In the first hundred years of the Republic, the term of copyright was " "changed once. In 1831, the term was increased from a maximum of 28 years to " "a maximum of 42 by increasing the initial term of copyright from 14 years to " "28 years. In the next fifty years of the Republic, the term increased once " "again. In 1909, Congress extended the renewal term of 14 years to 28 years, " "setting a maximum term of 56 years." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6523 msgid "" "Then, beginning in 1962, Congress started a practice that has defined " "copyright law since. Eleven times in the last forty years, Congress has " "extended the terms of existing copyrights; twice in those forty years, " "Congress extended the term of future copyrights. Initially, the extensions " "of existing copyrights were short, a mere one to two years. In 1976, " "Congress extended all existing copyrights by nineteen years. And in 1998, " "in the Sonny Bono Copyright Term Extension Act, Congress extended the term " "of existing and future copyrights by twenty years." msgstr "" #. PAGE BREAK 146 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6533 msgid "" "The effect of these extensions is simply to toll, or delay, the passing of " "works into the public domain. This latest extension means that the public " "domain will have been tolled for thirty-nine out of fifty-five years, or 70 " "percent of the time since 1962. Thus, in the twenty years after the Sonny " "Bono Act, while one million patents will pass into the public domain, zero " "copyrights will pass into the public domain by virtue of the expiration of a " "copyright term." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6544 msgid "" "The effect of these extensions has been exacerbated by another, " "little-noticed change in the copyright law. Remember I said that the framers " "established a two-part copyright regime, requiring a copyright owner to " "renew his copyright after an initial term. The requirement of renewal meant " "that works that no longer needed copyright protection would pass more " "quickly into the public domain. The works remaining under protection would " "be those that had some continuing commercial value." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6554 msgid "" "The United States abandoned this sensible system in 1976. For all works " "created after 1978, there was only one copyright term—the maximum " "term. For \"natural\" authors, that term was life plus fifty years. For " "corporations, the term was seventy-five years. Then, in 1992, Congress " "abandoned the renewal requirement for all works created before 1978. All " "works still under copyright would be accorded the maximum term then " "available. After the Sonny Bono Act, that term was ninety-five years." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6564 msgid "" "This change meant that American law no longer had an automatic way to assure " "that works that were no longer exploited passed into the public domain. And " "indeed, after these changes, it is unclear whether it is even possible to " "put works into the public domain. The public domain is orphaned by these " "changes in copyright law. Despite the requirement that terms be \"limited,\" " "we have no evidence that anything will limit them." msgstr "" #. f12 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:6581 msgid "" "These statistics are understated. Between the years 1910 and 1962 (the first " "year the renewal term was extended), the average term was never more than " "thirty-two years, and averaged thirty years. See Landes and Posner, " "\"Indefinitely Renewable Copyright,\" loc. cit." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6573 msgid "" "The effect of these changes on the average duration of copyright is " "dramatic. In 1973, more than 85 percent of copyright owners failed to renew " "their copyright. That meant that the average term of copyright in 1973 was " "just 32.2 years. Because of the elimination of the renewal requirement, the " "average term of copyright is now the maximum term. In thirty years, then, " "the average term has tripled, from 32.2 years to 95 years.<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:6590 msgid "Law: Scope" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6592 msgid "" "The \"scope\" of a copyright is the range of rights granted by the law. The " "scope of American copyright has changed dramatically. Those changes are not " "necessarily bad. But we should understand the extent of the changes if we're " "to keep this debate in context." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6598 msgid "" "In 1790, that scope was very narrow. Copyright covered only \"maps, charts, " "and books.\" That means it didn't cover, for example, music or " "architecture. More significantly, the right granted by a copyright gave the " "author the exclusive right to \"publish\" copyrighted works. That means " "someone else violated the copyright only if he republished the work without " "the copyright owner's permission. Finally, the right granted by a copyright " "was an exclusive right to that particular book. The right did not extend to " "what lawyers call \"derivative works.\" It would not, therefore, interfere " "with the right of someone other than the author to translate a copyrighted " "book, or to adapt the story to a different form (such as a drama based on a " "published book)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6611 msgid "" "This, too, has changed dramatically. While the contours of copyright today " "are extremely hard to describe simply, in general terms, the right covers " "practically any creative work that is reduced to a tangible form. It covers " "music as well as architecture, drama as well as computer programs. It gives " "the copyright owner of that creative work not only the exclusive right to " "\"publish\" the work, but also the exclusive right of control over any " "\"copies\" of that work. And most significant for our purposes here, the " "right gives the copyright owner control over not only his or her particular " "work, but also any \"derivative work\" that might grow out of the original " "work. In this way, the right covers more creative work, protects the " "creative work more broadly, and protects works that are based in a " "significant way on the initial creative work." msgstr "" #. PAGE BREAK 148 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6626 msgid "" "At the same time that the scope of copyright has expanded, procedural " "limitations on the right have been relaxed. I've already described the " "complete removal of the renewal requirement in 1992. In addition to the " "renewal requirement, for most of the history of American copyright law, " "there was a requirement that a work be registered before it could receive " "the protection of a copyright. There was also a requirement that any " "copyrighted work be marked either with that famous © or the word " "copyright. And for most of the history of American copyright law, there was " "a requirement that works be deposited with the government before a copyright " "could be secured." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6639 msgid "" "The reason for the registration requirement was the sensible understanding " "that for most works, no copyright was required. Again, in the first ten " "years of the Republic, 95 percent of works eligible for copyright were never " "copyrighted. Thus, the rule reflected the norm: Most works apparently didn't " "need copyright, so registration narrowed the regulation of the law to the " "few that did. The same reasoning justified the requirement that a work be " "marked as copyrighted—that way it was easy to know whether a copyright " "was being claimed. The requirement that works be deposited was to assure " "that after the copyright expired, there would be a copy of the work " "somewhere so that it could be copied by others without locating the original " "author." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6653 msgid "" "All of these \"formalities\" were abolished in the American system when we " "decided to follow European copyright law. There is no requirement that you " "register a work to get a copyright; the copyright now is automatic; the " "copyright exists whether or not you mark your work with a ©; and the " "copyright exists whether or not you actually make a copy available for " "others to copy." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6661 msgid "Consider a practical example to understand the scope of these differences." msgstr "" #. f13 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:6672 msgid "" "See Thomas Bender and David Sampliner, \"Poets, Pirates, and the Creation of " "American Literature,\" 29 New York University Journal of International Law " "and Politics 255 (1997), and James Gilraeth, ed., Federal Copyright Records, " "1790–1800 (U.S. G.P.O., 1987)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6665 msgid "" "If, in 1790, you wrote a book and you were one of the 5 percent who actually " "copyrighted that book, then the copyright law protected you against another " "publisher's taking your book and republishing it without your " "permission. The aim of the act was to regulate publishers so as to prevent " "that kind of unfair competition. In 1790, there were 174 publishers in the " "United States.<placeholder type=\"footnote\" id=\"0\"/> The Copyright Act " "was thus a tiny regulation of a tiny proportion of a tiny part of the " "creative market in the United States—publishers." msgstr "" #. PAGE BREAK 149 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6685 msgid "" "The act left other creators totally unregulated. If I copied your poem by " "hand, over and over again, as a way to learn it by heart, my act was totally " "unregulated by the 1790 act. If I took your novel and made a play based upon " "it, or if I translated it or abridged it, none of those activities were " "regulated by the original copyright act. These creative activities remained " "free, while the activities of publishers were restrained." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6695 msgid "" "Today the story is very different: If you write a book, your book is " "automatically protected. Indeed, not just your book. Every e-mail, every " "note to your spouse, every doodle, every creative act that's reduced to a " "tangible form—all of this is automatically copyrighted. There is no " "need to register or mark your work. The protection follows the creation, not " "the steps you take to protect it." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6704 msgid "" "That protection gives you the right (subject to a narrow range of fair use " "exceptions) to control how others copy the work, whether they copy it to " "republish it or to share an excerpt." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6709 msgid "" "That much is the obvious part. Any system of copyright would control " "competing publishing. But there's a second part to the copyright of today " "that is not at all obvious. This is the protection of \"derivative rights.\" " "If you write a book, no one can make a movie out of your book without " "permission. No one can translate it without permission. CliffsNotes can't " "make an abridgment unless permission is granted. All of these derivative " "uses of your original work are controlled by the copyright holder. The " "copyright, in other words, is now not just an exclusive right to your " "writings, but an exclusive right to your writings and a large proportion of " "the writings inspired by them." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6723 msgid "" "It is this derivative right that would seem most bizarre to our framers, " "though it has become second nature to us. Initially, this expansion was " "created to deal with obvious evasions of a narrower copyright. If I write a " "book, can you change one word and then claim a copyright in a new and " "different book? Obviously that would make a joke of the copyright, so the " "law was properly expanded to include those slight modifications as well as " "the verbatim original work." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:6746 msgid "" "Jonathan Zittrain, \"The Copyright Cage,\" Legal Affairs, July/August 2003, " "available at <ulink url=\"http://free-culture.cc/notes/\">link #26</ulink>. " "<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6736 msgid "" "In preventing that joke, the law created an astonishing power within a free " "culture—at least, it's astonishing when you understand that the law " "applies not just to the commercial publisher but to anyone with a " "computer. I understand the wrong in duplicating and selling someone else's " "work. But whatever that wrong is, transforming someone else's work is a " "different wrong. Some view transformation as no wrong at all—they " "believe that our law, as the framers penned it, should not protect " "derivative rights at all.<placeholder type=\"footnote\" id=\"0\"/> Whether " "or not you go that far, it seems plain that whatever wrong is involved is " "fundamentally different from the wrong of direct piracy." msgstr "" #. f15 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:6762 msgid "" "Professor Rubenfeld has presented a powerful constitutional argument about " "the difference that copyright law should draw (from the perspective of the " "First Amendment) between mere \"copies\" and derivative works. See Jed " "Rubenfeld, \"The Freedom of Imagination: Copyright's Constitutionality,\" " "Yale Law Journal 112 (2002): 1–60 (see especially pp. 53–59)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6756 msgid "" "Yet copyright law treats these two different wrongs in the same way. I can " "go to court and get an injunction against your pirating my book. I can go to " "court and get an injunction against your transformative use of my " "book.<placeholder type=\"footnote\" id=\"0\"/> These two different uses of " "my creative work are treated the same." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6773 msgid "" "This again may seem right to you. If I wrote a book, then why should you be " "able to write a movie that takes my story and makes money from it without " "paying me or crediting me? Or if Disney creates a creature called \"Mickey " "Mouse,\" why should you be able to make Mickey Mouse toys and be the one to " "trade on the value that Disney originally created?" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6782 msgid "" "These are good arguments, and, in general, my point is not that the " "derivative right is unjustified. My aim just now is much narrower: simply to " "make clear that this expansion is a significant change from the rights " "originally granted." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:6790 msgid "Law and Architecture: Reach" msgstr "" #. f16 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:6797 msgid "" "This is a simplification of the law, but not much of one. The law certainly " "regulates more than \"copies\"—a public performance of a copyrighted " "song, for example, is regulated even though performance per se doesn't make " "a copy; 17 United States Code, section 106(4). And it certainly sometimes " "doesn't regulate a \"copy\"; 17 United States Code, section 112(a). But the " "presumption under the existing law (which regulates \"copies;\" 17 United " "States Code, section 102) is that if there is a copy, there is a right." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6792 msgid "" "Whereas originally the law regulated only publishers, the change in " "copyright's scope means that the law today regulates publishers, users, and " "authors. It regulates them because all three are capable of making copies, " "and the core of the regulation of copyright law is copies.<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. PAGE BREAK 151 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6809 msgid "" "\"Copies.\" That certainly sounds like the obvious thing for copyright law " "to regulate. But as with Jack Valenti's argument at the start of this " "chapter, that \"creative property\" deserves the \"same rights\" as all " "other property, it is the obvious that we need to be most careful about. For " "while it may be obvious that in the world before the Internet, copies were " "the obvious trigger for copyright law, upon reflection, it should be obvious " "that in the world with the Internet, copies should not be the trigger for " "copyright law. More precisely, they should not always be the trigger for " "copyright law." msgstr "" #. f17 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:6825 msgid "" "Thus, my argument is not that in each place that copyright law extends, we " "should repeal it. It is instead that we should have a good argument for its " "extending where it does, and should not determine its reach on the basis of " "arbitrary and automatic changes caused by technology." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6820 msgid "" "This is perhaps the central claim of this book, so let me take this very " "slowly so that the point is not easily missed. My claim is that the Internet " "should at least force us to rethink the conditions under which the law of " "copyright automatically applies,<placeholder type=\"footnote\" id=\"0\"/> " "because it is clear that the current reach of copyright was never " "contemplated, much less chosen, by the legislators who enacted copyright " "law." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6836 msgid "" "We can see this point abstractly by beginning with this largely empty " "circle." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> #: freeculture.xml:6840 msgid "All potential uses of a book." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> #: freeculture.xml:6841 msgid "<graphic fileref=\"images/1521.png\"></graphic>" msgstr "" #. PAGE BREAK 152 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6845 msgid "" "Think about a book in real space, and imagine this circle to represent all " "its potential uses. Most of these uses are unregulated by copyright law, " "because the uses don't create a copy. If you read a book, that act is not " "regulated by copyright law. If you give someone the book, that act is not " "regulated by copyright law. If you resell a book, that act is not regulated " "(copyright law expressly states that after the first sale of a book, the " "copyright owner can impose no further conditions on the disposition of the " "book). If you sleep on the book or use it to hold up a lamp or let your " "puppy chew it up, those acts are not regulated by copyright law, because " "those acts do not make a copy." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> #: freeculture.xml:6858 msgid "Examples of unregulated uses of a book." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> #: freeculture.xml:6859 msgid "<graphic fileref=\"images/1531.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6862 msgid "" "Obviously, however, some uses of a copyrighted book are regulated by " "copyright law. Republishing the book, for example, makes a copy. It is " "therefore regulated by copyright law. Indeed, this particular use stands at " "the core of this circle of possible uses of a copyrighted work. It is the " "paradigmatic use properly regulated by copyright regulation (see first " "diagram on next page)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6870 msgid "" "Finally, there is a tiny sliver of otherwise regulated copying uses that " "remain unregulated because the law considers these \"fair uses.\"" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> #: freeculture.xml:6875 msgid "" "Republishing stands at the core of this circle of possible uses of a " "copyrighted work." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> #: freeculture.xml:6876 msgid "<graphic fileref=\"images/1541.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6879 msgid "" "These are uses that themselves involve copying, but which the law treats as " "unregulated because public policy demands that they remain unregulated. You " "are free to quote from this book, even in a review that is quite negative, " "without my permission, even though that quoting makes a copy. That copy " "would ordinarily give the copyright owner the exclusive right to say whether " "the copy is allowed or not, but the law denies the owner any exclusive right " "over such \"fair uses\" for public policy (and possibly First Amendment) " "reasons." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> #: freeculture.xml:6890 msgid "Unregulated copying considered "fair uses."" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> #: freeculture.xml:6891 msgid "<graphic fileref=\"images/1542.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> #: freeculture.xml:6895 msgid "" "Uses that before were presumptively unregulated are now presumptively " "regulated." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> #: freeculture.xml:6896 msgid "<graphic fileref=\"images/1551.png\"></graphic>" msgstr "" #. PAGE BREAK 154 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6900 msgid "" "In real space, then, the possible uses of a book are divided into three " "sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that " "are nonetheless deemed \"fair\" regardless of the copyright owner's views." msgstr "" #. f18 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:6908 msgid "" "I don't mean \"nature\" in the sense that it couldn't be different, but " "rather that its present instantiation entails a copy. Optical networks need " "not make copies of content they transmit, and a digital network could be " "designed to delete anything it copies so that the same number of copies " "remain." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6905 msgid "" "Enter the Internet—a distributed, digital network where every use of a " "copyrighted work produces a copy.<placeholder type=\"footnote\" id=\"0\"/> " "And because of this single, arbitrary feature of the design of a digital " "network, the scope of category 1 changes dramatically. Uses that before were " "presumptively unregulated are now presumptively regulated. No longer is " "there a set of presumptively unregulated uses that define a freedom " "associated with a copyrighted work. Instead, each use is now subject to the " "copyright, because each use also makes a copy—category 1 gets sucked " "into category 2. And those who would defend the unregulated uses of " "copyrighted work must look exclusively to category 3, fair uses, to bear the " "burden of this shift." msgstr "" #. PAGE BREAK 155 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6929 msgid "" "So let's be very specific to make this general point clear. Before the " "Internet, if you purchased a book and read it ten times, there would be no " "plausible copyright-related argument that the copyright owner could make to " "control that use of her book. Copyright law would have nothing to say about " "whether you read the book once, ten times, or every night before you went to " "bed. None of those instances of use—reading— could be regulated " "by copyright law because none of those uses produced a copy." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6942 msgid "" "But the same book as an e-book is effectively governed by a different set of " "rules. Now if the copyright owner says you may read the book only once or " "only once a month, then copyright law would aid the copyright owner in " "exercising this degree of control, because of the accidental feature of " "copyright law that triggers its application upon there being a copy. Now if " "you read the book ten times and the license says you may read it only five " "times, then whenever you read the book (or any portion of it) beyond the " "fifth time, you are making a copy of the book contrary to the copyright " "owner's wish." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6956 msgid "" "There are some people who think this makes perfect sense. My aim just now is " "not to argue about whether it makes sense or not. My aim is only to make " "clear the change. Once you see this point, a few other points also become " "clear:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6962 msgid "" "First, making category 1 disappear is not anything any policy maker ever " "intended. Congress did not think through the collapse of the presumptively " "unregulated uses of copyrighted works. There is no evidence at all that " "policy makers had this idea in mind when they allowed our policy here to " "shift. Unregulated uses were an important part of free culture before the " "Internet." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6972 msgid "" "Second, this shift is especially troubling in the context of transformative " "uses of creative content. Again, we can all understand the wrong in " "commercial piracy. But the law now purports to regulate any transformation " "you make of creative work using a machine. \"Copy and paste\" and \"cut and " "paste\" become crimes. Tinkering with a story and releasing it to others " "exposes the tinkerer to at least a requirement of justification. However " "troubling the expansion with respect to copying a particular work, it is " "extraordinarily troubling with respect to transformative uses of creative " "work." msgstr "" #. PAGE BREAK 156 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:6988 msgid "" "Third, this shift from category 1 to category 2 puts an extraordinary burden " "on category 3 (\"fair use\") that fair use never before had to bear. If a " "copyright owner now tried to control how many times I could read a book " "on-line, the natural response would be to argue that this is a violation of " "my fair use rights. But there has never been any litigation about whether I " "have a fair use right to read, because before the Internet, reading did not " "trigger the application of copyright law and hence the need for a fair use " "defense. The right to read was effectively protected before because reading " "was not regulated." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7003 msgid "" "This point about fair use is totally ignored, even by advocates for free " "culture. We have been cornered into arguing that our rights depend upon fair " "use—never even addressing the earlier question about the expansion in " "effective regulation. A thin protection grounded in fair use makes sense " "when the vast majority of uses are unregulated. But when everything becomes " "presumptively regulated, then the protections of fair use are not enough." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7014 msgid "" "The case of Video Pipeline is a good example. Video Pipeline was in the " "business of making \"trailer\" advertisements for movies available to video " "stores. The video stores displayed the trailers as a way to sell " "videos. Video Pipeline got the trailers from the film distributors, put the " "trailers on tape, and sold the tapes to the retail stores." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7021 msgid "" "The company did this for about fifteen years. Then, in 1997, it began to " "think about the Internet as another way to distribute these previews. The " "idea was to expand their \"selling by sampling\" technique by giving on-line " "stores the same ability to enable \"browsing.\" Just as in a bookstore you " "can read a few pages of a book before you buy the book, so, too, you would " "be able to sample a bit from the movie on-line before you bought it." msgstr "" #. PAGE BREAK 157 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7033 msgid "" "In 1998, Video Pipeline informed Disney and other film distributors that it " "intended to distribute the trailers through the Internet (rather than " "sending the tapes) to distributors of their videos. Two years later, Disney " "told Video Pipeline to stop. The owner of Video Pipeline asked Disney to " "talk about the matter—he had built a business on distributing this " "content as a way to help sell Disney films; he had customers who depended " "upon his delivering this content. Disney would agree to talk only if Video " "Pipeline stopped the distribution immediately. Video Pipeline thought it " "was within their \"fair use\" rights to distribute the clips as they had. So " "they filed a lawsuit to ask the court to declare that these rights were in " "fact their rights." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7050 msgid "" "Disney countersued—for $100 million in damages. Those damages were " "predicated upon a claim that Video Pipeline had \"willfully infringed\" on " "Disney's copyright. When a court makes a finding of willful infringement, it " "can award damages not on the basis of the actual harm to the copyright " "owner, but on the basis of an amount set in the statute. Because Video " "Pipeline had distributed seven hundred clips of Disney movies to enable " "video stores to sell copies of those movies, Disney was now suing Video " "Pipeline for $100 million." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7062 msgid "" "Disney has the right to control its property, of course. But the video " "stores that were selling Disney's films also had some sort of right to be " "able to sell the films that they had bought from Disney. Disney's claim in " "court was that the stores were allowed to sell the films and they were " "permitted to list the titles of the films they were selling, but they were " "not allowed to show clips of the films as a way of selling them without " "Disney's permission." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7071 msgid "" "Now, you might think this is a close case, and I think the courts would " "consider it a close case. My point here is to map the change that gives " "Disney this power. Before the Internet, Disney couldn't really control how " "people got access to their content. Once a video was in the marketplace, the " "\"first-sale doctrine\" would free the seller to use the video as he wished, " "including showing portions of it in order to engender sales of the entire " "movie video. But with the Internet, it becomes possible for Disney to " "centralize control over access to this content. Because each use of the " "Internet produces a copy, use on the Internet becomes subject to the " "copyright owner's control. The technology expands the scope of effective " "control, because the technology builds a copy into every transaction." msgstr "" #. PAGE BREAK 158 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7086 msgid "" "No doubt, a potential is not yet an abuse, and so the potential for control " "is not yet the abuse of control. Barnes & Noble has the right to say you " "can't touch a book in their store; property law gives them that right. But " "the market effectively protects against that abuse. If Barnes & Noble " "banned browsing, then consumers would choose other bookstores. Competition " "protects against the extremes. And it may well be (my argument so far does " "not even question this) that competition would prevent any similar danger " "when it comes to copyright. Sure, publishers exercising the rights that " "authors have assigned to them might try to regulate how many times you read " "a book, or try to stop you from sharing the book with anyone. But in a " "competitive market such as the book market, the dangers of this happening " "are quite slight." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7101 msgid "" "Again, my aim so far is simply to map the changes that this changed " "architecture enables. Enabling technology to enforce the control of " "copyright means that the control of copyright is no longer defined by " "balanced policy. The control of copyright is simply what private owners " "choose. In some contexts, at least, that fact is harmless. But in some " "contexts it is a recipe for disaster." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:7110 msgid "Architecture and Law: Force" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7112 msgid "" "The disappearance of unregulated uses would be change enough, but a second " "important change brought about by the Internet magnifies its " "significance. This second change does not affect the reach of copyright " "regulation; it affects how such regulation is enforced." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7118 msgid "" "In the world before digital technology, it was generally the law that " "controlled whether and how someone was regulated by copyright law. The law, " "meaning a court, meaning a judge: In the end, it was a human, trained in the " "tradition of the law and cognizant of the balances that tradition embraced, " "who said whether and how the law would restrict your freedom." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:7125 msgid "Casablanca" msgstr "" #. f19 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:7134 msgid "" "See David Lange, \"Recognizing the Public Domain,\" Law and Contemporary " "Problems 44 (1981): 172–73." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7127 msgid "" "There's a famous story about a battle between the Marx Brothers and Warner " "Brothers. The Marxes intended to make a parody of Casablanca. Warner " "Brothers objected. They wrote a nasty letter to the Marxes, warning them " "that there would be serious legal consequences if they went forward with " "their plan.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:7143 msgid "" "Ibid. See also Vaidhyanathan, Copyrights and Copywrongs, 1–3. " "<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7139 msgid "" "This led the Marx Brothers to respond in kind. They warned Warner Brothers " "that the Marx Brothers \"were brothers long before you were.\"<placeholder " "type=\"footnote\" id=\"0\"/> The Marx Brothers therefore owned the word " "brothers, and if Warner Brothers insisted on trying to control Casablanca, " "then the Marx Brothers would insist on control over brothers." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7151 msgid "" "An absurd and hollow threat, of course, because Warner Brothers, like the " "Marx Brothers, knew that no court would ever enforce such a silly " "claim. This extremism was irrelevant to the real freedoms anyone (including " "Warner Brothers) enjoyed." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7157 msgid "" "On the Internet, however, there is no check on silly rules, because on the " "Internet, increasingly, rules are enforced not by a human but by a machine: " "Increasingly, the rules of copyright law, as interpreted by the copyright " "owner, get built into the technology that delivers copyrighted content. It " "is code, rather than law, that rules. And the problem with code regulations " "is that, unlike law, code has no shame. Code would not get the humor of the " "Marx Brothers. The consequence of that is not at all funny." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7168 msgid "Consider the life of my Adobe eBook Reader." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7171 msgid "" "An e-book is a book delivered in electronic form. An Adobe eBook is not a " "book that Adobe has published; Adobe simply produces the software that " "publishers use to deliver e-books. It provides the technology, and the " "publisher delivers the content by using the technology." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7178 msgid "On the next page is a picture of an old version of my Adobe eBook Reader." msgstr "" #. PAGE BREAK 160 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7182 msgid "" "As you can see, I have a small collection of e-books within this e-book " "library. Some of these books reproduce content that is in the public domain: " "Middlemarch, for example, is in the public domain. Some of them reproduce " "content that is not in the public domain: My own book The Future of Ideas is " "not yet within the public domain. Consider Middlemarch first. If you click " "on my e-book copy of Middlemarch, you'll see a fancy cover, and then a " "button at the bottom called Permissions." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> #: freeculture.xml:7193 msgid "Picture of an old version of Adobe eBook Reader" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> #: freeculture.xml:7194 msgid "<graphic fileref=\"images/1611.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7197 msgid "" "If you click on the Permissions button, you'll see a list of the permissions " "that the publisher purports to grant with this book." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> #: freeculture.xml:7201 msgid "List of the permissions that the publisher purports to grant." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> #: freeculture.xml:7202 msgid "<graphic fileref=\"images/1612.png\"></graphic>" msgstr "" #. PAGE BREAK 161 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7206 msgid "" "According to my eBook Reader, I have the permission to copy to the clipboard " "of the computer ten text selections every ten days. (So far, I've copied no " "text to the clipboard.) I also have the permission to print ten pages from " "the book every ten days. Lastly, I have the permission to use the Read Aloud " "button to hear Middlemarch read aloud through the computer." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7222 msgid "" "Here's the e-book for another work in the public domain (including the " "translation): Aristotle's Politics." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> #: freeculture.xml:7226 msgid "E-book of Aristotle;s "Politics"" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> #: freeculture.xml:7227 msgid "<graphic fileref=\"images/1621.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7230 msgid "" "According to its permissions, no printing or copying is permitted at " "all. But fortunately, you can use the Read Aloud button to hear the book." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> #: freeculture.xml:7235 msgid "List of the permissions for Aristotle;s "Politics"." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> #: freeculture.xml:7236 msgid "<graphic fileref=\"images/1622.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7239 msgid "" "Finally (and most embarrassingly), here are the permissions for the original " "e-book version of my last book, The Future of Ideas:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> #: freeculture.xml:7244 msgid "List of the permissions for "The Future of Ideas"." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> #: freeculture.xml:7245 msgid "<graphic fileref=\"images/1631.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7248 msgid "No copying, no printing, and don't you dare try to listen to this book!" msgstr "" #. f21 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:7258 msgid "" "In principle, a contract might impose a requirement on me. I might, for " "example, buy a book from you that includes a contract that says I will read " "it only three times, or that I promise to read it three times. But that " "obligation (and the limits for creating that obligation) would come from the " "contract, not from copyright law, and the obligations of contract would not " "necessarily pass to anyone who subsequently acquired the book." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7251 msgid "" "Now, the Adobe eBook Reader calls these controls \"permissions\"— as " "if the publisher has the power to control how you use these works. For " "works under copyright, the copyright owner certainly does have the " "power—up to the limits of the copyright law. But for work not under " "copyright, there is no such copyright power.<placeholder type=\"footnote\" " "id=\"0\"/> When my e-book of Middlemarch says I have the permission to copy " "only ten text selections into the memory every ten days, what that really " "means is that the eBook Reader has enabled the publisher to control how I " "use the book on my computer, far beyond the control that the law would " "enable." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7273 msgid "" "The control comes instead from the code—from the technology within " "which the e-book \"lives.\" Though the e-book says that these are " "permissions, they are not the sort of \"permissions\" that most of us deal " "with. When a teenager gets \"permission\" to stay out till midnight, she " "knows (unless she's Cinderella) that she can stay out till 2 A.M., but will " "suffer a punishment if she's caught. But when the Adobe eBook Reader says I " "have the permission to make ten copies of the text into the computer's " "memory, that means that after I've made ten copies, the computer will not " "make any more. The same with the printing restrictions: After ten pages, the " "eBook Reader will not print any more pages. It's the same with the silly " "restriction that says that you can't use the Read Aloud button to read my " "book aloud—it's not that the company will sue you if you do; instead, " "if you push the Read Aloud button with my book, the machine simply won't " "read aloud." msgstr "" #. PAGE BREAK 163 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7291 msgid "" "These are controls, not permissions. Imagine a world where the Marx Brothers " "sold word processing software that, when you tried to type \"Warner " "Brothers,\" erased \"Brothers\" from the sentence." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7296 msgid "" "This is the future of copyright law: not so much copyright law as copyright " "code. The controls over access to content will not be controls that are " "ratified by courts; the controls over access to content will be controls " "that are coded by programmers. And whereas the controls that are built into " "the law are always to be checked by a judge, the controls that are built " "into the technology have no similar built-in check." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7304 msgid "" "How significant is this? Isn't it always possible to get around the controls " "built into the technology? Software used to be sold with technologies that " "limited the ability of users to copy the software, but those were trivial " "protections to defeat. Why won't it be trivial to defeat these protections " "as well?" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7312 msgid "" "We've only scratched the surface of this story. Return to the Adobe eBook " "Reader." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7316 msgid "" "Early in the life of the Adobe eBook Reader, Adobe suffered a public " "relations nightmare. Among the books that you could download for free on the " "Adobe site was a copy of Alice's Adventures in Wonderland. This wonderful " "book is in the public domain. Yet when you clicked on Permissions for that " "book, you got the following report:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> #: freeculture.xml:7324 msgid "List of the permissions for "Alice's Adventures in Wonderland"." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> #: freeculture.xml:7326 msgid "<graphic fileref=\"images/1641.png\"></graphic>" msgstr "" #. PAGE BREAK 164 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7330 msgid "" "Here was a public domain children's book that you were not allowed to copy, " "not allowed to lend, not allowed to give, and, as the \"permissions\" " "indicated, not allowed to \"read aloud\"!" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7337 msgid "" "The public relations nightmare attached to that final permission. For the " "text did not say that you were not permitted to use the Read Aloud button; " "it said you did not have the permission to read the book aloud. That led " "some people to think that Adobe was restricting the right of parents, for " "example, to read the book to their children, which seemed, to say the least, " "absurd." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7345 msgid "" "Adobe responded quickly that it was absurd to think that it was trying to " "restrict the right to read a book aloud. Obviously it was only restricting " "the ability to use the Read Aloud button to have the book read aloud. But " "the question Adobe never did answer is this: Would Adobe thus agree that a " "consumer was free to use software to hack around the restrictions built into " "the eBook Reader? If some company (call it Elcomsoft) developed a program to " "disable the technological protection built into an Adobe eBook so that a " "blind person, say, could use a computer to read the book aloud, would Adobe " "agree that such a use of an eBook Reader was fair? Adobe didn't answer " "because the answer, however absurd it might seem, is no." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7358 msgid "" "The point is not to blame Adobe. Indeed, Adobe is among the most innovative " "companies developing strategies to balance open access to content with " "incentives for companies to innovate. But Adobe's technology enables " "control, and Adobe has an incentive to defend this control. That incentive " "is understandable, yet what it creates is often crazy." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7366 msgid "" "To see the point in a particularly absurd context, consider a favorite story " "of mine that makes the same point." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:7370 msgid "Aibo robotic dog" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7373 msgid "" "Consider the robotic dog made by Sony named \"Aibo.\" The Aibo learns " "tricks, cuddles, and follows you around. It eats only electricity and that " "doesn't leave that much of a mess (at least in your house)." msgstr "" #. PAGE BREAK 165 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7378 msgid "" "The Aibo is expensive and popular. Fans from around the world have set up " "clubs to trade stories. One fan in particular set up a Web site to enable " "information about the Aibo dog to be shared. This fan set up aibopet.com " "(and aibohack.com, but that resolves to the same site), and on that site he " "provided information about how to teach an Aibo to do tricks in addition to " "the ones Sony had taught it." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7387 msgid "" "\"Teach\" here has a special meaning. Aibos are just cute computers. You " "teach a computer how to do something by programming it differently. So to " "say that aibopet.com was giving information about how to teach the dog to do " "new tricks is just to say that aibopet.com was giving information to users " "of the Aibo pet about how to hack their computer \"dog\" to make it do new " "tricks (thus, aibohack.com)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7395 msgid "" "If you're not a programmer or don't know many programmers, the word hack has " "a particularly unfriendly connotation. Nonprogrammers hack bushes or " "weeds. Nonprogrammers in horror movies do even worse. But to programmers, or " "coders, as I call them, hack is a much more positive term. Hack just means " "code that enables the program to do something it wasn't originally intended " "or enabled to do. If you buy a new printer for an old computer, you might " "find the old computer doesn't run, or \"drive,\" the printer. If you " "discovered that, you'd later be happy to discover a hack on the Net by " "someone who has written a driver to enable the computer to drive the printer " "you just bought." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7407 msgid "" "Some hacks are easy. Some are unbelievably hard. Hackers as a community like " "to challenge themselves and others with increasingly difficult " "tasks. There's a certain respect that goes with the talent to hack " "well. There's a well-deserved respect that goes with the talent to hack " "ethically." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7414 msgid "" "The Aibo fan was displaying a bit of both when he hacked the program and " "offered to the world a bit of code that would enable the Aibo to dance " "jazz. The dog wasn't programmed to dance jazz. It was a clever bit of " "tinkering that turned the dog into a more talented creature than Sony had " "built." msgstr "" #. PAGE BREAK 166 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7422 msgid "" "I've told this story in many contexts, both inside and outside the United " "States. Once I was asked by a puzzled member of the audience, is it " "permissible for a dog to dance jazz in the United States? We forget that " "stories about the backcountry still flow across much of the world. So let's " "just be clear before we continue: It's not a crime anywhere (anymore) to " "dance jazz. Nor is it a crime to teach your dog to dance jazz. Nor should it " "be a crime (though we don't have a lot to go on here) to teach your robot " "dog to dance jazz. Dancing jazz is a completely legal activity. One imagines " "that the owner of aibopet.com thought, What possible problem could there be " "with teaching a robot dog to dance?" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7438 msgid "" "Let's put the dog to sleep for a minute, and turn to a pony show— not " "literally a pony show, but rather a paper that a Princeton academic named Ed " "Felten prepared for a conference. This Princeton academic is well known and " "respected. He was hired by the government in the Microsoft case to test " "Microsoft's claims about what could and could not be done with its own " "code. In that trial, he demonstrated both his brilliance and his " "coolness. Under heavy badgering by Microsoft lawyers, Ed Felten stood his " "ground. He was not about to be bullied into being silent about something he " "knew very well." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> #: freeculture.xml:7461 freeculture.xml:9883 msgid "Electronic Frontier Foundation" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:7451 msgid "" "See Pamela Samuelson, \"Anticircumvention Rules: Threat to Science,\" " "Science 293 (2001): 2028; Brendan I. Koerner, \"Play Dead: Sony Muzzles the " "Techies Who Teach a Robot Dog New Tricks,\" American Prospect, January 2002; " "\"Court Dismisses Computer Scientists' Challenge to DMCA,\" Intellectual " "Property Litigation Reporter, 11 December 2001; Bill Holland, \"Copyright " "Act Raising Free-Speech Concerns,\" Billboard, May 2001; Janelle Brown, \"Is " "the RIAA Running Scared?\" Salon.com, April 2001; Electronic Frontier " "Foundation, \"Frequently Asked Questions about Felten and USENIX v. RIAA " "Legal Case,\" available at <ulink url=\"http://free-culture.cc/notes/\">link " "#27</ulink>. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7449 msgid "" "But Felten's bravery was really tested in April 2001.<placeholder " "type=\"footnote\" id=\"0\"/> He and a group of colleagues were working on a " "paper to be submitted at conference. The paper was intended to describe the " "weakness in an encryption system being developed by the Secure Digital Music " "Initiative as a technique to control the distribution of music." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7469 msgid "" "The SDMI coalition had as its goal a technology to enable content owners to " "exercise much better control over their content than the Internet, as it " "originally stood, granted them. Using encryption, SDMI hoped to develop a " "standard that would allow the content owner to say \"this music cannot be " "copied,\" and have a computer respect that command. The technology was to " "be part of a \"trusted system\" of control that would get content owners to " "trust the system of the Internet much more." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7479 msgid "" "When SDMI thought it was close to a standard, it set up a competition. In " "exchange for providing contestants with the code to an SDMI-encrypted bit of " "content, contestants were to try to crack it and, if they did, report the " "problems to the consortium." msgstr "" #. PAGE BREAK 167 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7486 msgid "" "Felten and his team figured out the encryption system quickly. He and the " "team saw the weakness of this system as a type: Many encryption systems " "would suffer the same weakness, and Felten and his team thought it " "worthwhile to point this out to those who study encryption." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7492 msgid "" "Let's review just what Felten was doing. Again, this is the United " "States. We have a principle of free speech. We have this principle not just " "because it is the law, but also because it is a really great idea. A " "strongly protected tradition of free speech is likely to encourage a wide " "range of criticism. That criticism is likely, in turn, to improve the " "systems or people or ideas criticized." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7500 msgid "" "What Felten and his colleagues were doing was publishing a paper describing " "the weakness in a technology. They were not spreading free music, or " "building and deploying this technology. The paper was an academic essay, " "unintelligible to most people. But it clearly showed the weakness in the " "SDMI system, and why SDMI would not, as presently constituted, succeed." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7508 msgid "" "What links these two, aibopet.com and Felten, is the letters they then " "received. Aibopet.com received a letter from Sony about the aibopet.com " "hack. Though a jazz-dancing dog is perfectly legal, Sony wrote:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:7515 msgid "" "Your site contains information providing the means to circumvent AIBO-ware's " "copy protection protocol constituting a violation of the anti-circumvention " "provisions of the Digital Millennium Copyright Act." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7521 msgid "" "And though an academic paper describing the weakness in a system of " "encryption should also be perfectly legal, Felten received a letter from an " "RIAA lawyer that read:" msgstr "" #. PAGE BREAK 168 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:7527 msgid "" "Any disclosure of information gained from participating in the Public " "Challenge would be outside the scope of activities permitted by the " "Agreement and could subject you and your research team to actions under the " "Digital Millennium Copyright Act (\"DMCA\")." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7535 msgid "" "In both cases, this weirdly Orwellian law was invoked to control the spread " "of information. The Digital Millennium Copyright Act made spreading such " "information an offense." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7540 msgid "" "The DMCA was enacted as a response to copyright owners' first fear about " "cyberspace. The fear was that copyright control was effectively dead; the " "response was to find technologies that might compensate. These new " "technologies would be copyright protection technologies— technologies " "to control the replication and distribution of copyrighted material. They " "were designed as code to modify the original code of the Internet, to " "reestablish some protection for copyright owners." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7549 msgid "" "The DMCA was a bit of law intended to back up the protection of this code " "designed to protect copyrighted material. It was, we could say, legal code " "intended to buttress software code which itself was intended to support the " "legal code of copyright." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7555 msgid "" "But the DMCA was not designed merely to protect copyrighted works to the " "extent copyright law protected them. Its protection, that is, did not end at " "the line that copyright law drew. The DMCA regulated devices that were " "designed to circumvent copyright protection measures. It was designed to ban " "those devices, whether or not the use of the copyrighted material made " "possible by that circumvention would have been a copyright violation." msgstr "" #. PAGE BREAK 169 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7564 msgid "" "Aibopet.com and Felten make the point. The Aibo hack circumvented a " "copyright protection system for the purpose of enabling the dog to dance " "jazz. That enablement no doubt involved the use of copyrighted material. But " "as aibopet.com's site was noncommercial, and the use did not enable " "subsequent copyright infringements, there's no doubt that aibopet.com's hack " "was fair use of Sony's copyrighted material. Yet fair use is not a defense " "to the DMCA. The question is not whether the use of the copyrighted material " "was a copyright violation. The question is whether a copyright protection " "system was circumvented." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7576 msgid "" "The threat against Felten was more attenuated, but it followed the same line " "of reasoning. By publishing a paper describing how a copyright protection " "system could be circumvented, the RIAA lawyer suggested, Felten himself was " "distributing a circumvention technology. Thus, even though he was not " "himself infringing anyone's copyright, his academic paper was enabling " "others to infringe others' copyright." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7584 msgid "" "The bizarreness of these arguments is captured in a cartoon drawn in 1981 by " "Paul Conrad. At that time, a court in California had held that the VCR could " "be banned because it was a copyright-infringing technology: It enabled " "consumers to copy films without the permission of the copyright owner. No " "doubt there were uses of the technology that were legal: Fred Rogers, aka " "\"Mr. Rogers,\" for example, had testified in that case that he wanted " "people to feel free to tape Mr. Rogers' Neighborhood." msgstr "" #. f23 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> #: freeculture.xml:7610 msgid "" "Sony Corporation of America v. Universal City Studios, Inc., 464 U.S. 417, " "455 fn. 27 (1984). Rogers never changed his view about the VCR. See James " "Lardner, Fast Forward: Hollywood, the Japanese, and the Onslaught of the VCR " "(New York: W. W. Norton, 1987), 270–71." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:7595 msgid "" "Some public stations, as well as commercial stations, program the " "\"Neighborhood\" at hours when some children cannot use it. I think that " "it's a real service to families to be able to record such programs and show " "them at appropriate times. I have always felt that with the advent of all of " "this new technology that allows people to tape the \"Neighborhood\" " "off-the-air, and I'm speaking for the \"Neighborhood\" because that's what I " "produce, that they then become much more active in the programming of their " "family's television life. Very frankly, I am opposed to people being " "programmed by others. My whole approach in broadcasting has always been " "\"You are an important person just the way you are. You can make healthy " "decisions.\" Maybe I'm going on too long, but I just feel that anything that " "allows a person to be more active in the control of his or her life, in a " "healthy way, is important.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. PAGE BREAK 170 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7619 msgid "" "Even though there were uses that were legal, because there were some uses " "that were illegal, the court held the companies producing the VCR " "responsible." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7624 msgid "This led Conrad to draw the cartoon below, which we can adopt to the DMCA." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7628 msgid "No argument I have can top this picture, but let me try to get close." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7631 msgid "" "The anticircumvention provisions of the DMCA target copyright circumvention " "technologies. Circumvention technologies can be used for different " "ends. They can be used, for example, to enable massive pirating of " "copyrighted material—a bad end. Or they can be used to enable the use " "of particular copyrighted materials in ways that would be considered fair " "use—a good end." msgstr "" #. PAGE BREAK 171 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7639 msgid "" "A handgun can be used to shoot a police officer or a child. Most would agree " "such a use is bad. Or a handgun can be used for target practice or to " "protect against an intruder. At least some would say that such a use would " "be good. It, too, is a technology that has both good and bad uses." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> #: freeculture.xml:7647 msgid "VCR/handgun cartoon." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> #: freeculture.xml:7648 msgid "<graphic fileref=\"images/1711.png\"></graphic>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7651 msgid "" "The obvious point of Conrad's cartoon is the weirdness of a world where guns " "are legal, despite the harm they can do, while VCRs (and circumvention " "technologies) are illegal. Flash: No one ever died from copyright " "circumvention. Yet the law bans circumvention technologies absolutely, " "despite the potential that they might do some good, but permits guns, " "despite the obvious and tragic harm they do." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7659 msgid "" "The Aibo and RIAA examples demonstrate how copyright owners are changing the " "balance that copyright law grants. Using code, copyright owners restrict " "fair use; using the DMCA, they punish those who would attempt to evade the " "restrictions on fair use that they impose through code. Technology becomes a " "means by which fair use can be erased; the law of the DMCA backs up that " "erasing." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7667 msgid "" "This is how code becomes law. The controls built into the technology of copy " "and access protection become rules the violation of which is also a " "violation of the law. In this way, the code extends the law—increasing " "its regulation, even if the subject it regulates (activities that would " "otherwise plainly constitute fair use) is beyond the reach of the law. Code " "becomes law; code extends the law; code thus extends the control that " "copyright owners effect—at least for those copyright holders with the " "lawyers who can write the nasty letters that Felten and aibopet.com " "received." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7677 msgid "" "There is one final aspect of the interaction between architecture and law " "that contributes to the force of copyright's regulation. This is the ease " "with which infringements of the law can be detected. For contrary to the " "rhetoric common at the birth of cyberspace that on the Internet, no one " "knows you're a dog, increasingly, given changing technologies deployed on " "the Internet, it is easy to find the dog who committed a legal wrong. The " "technologies of the Internet are open to snoops as well as sharers, and the " "snoops are increasingly good at tracking down the identity of those who " "violate the rules." msgstr "" #. f24 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:7696 msgid "" "For an early and prescient analysis, see Rebecca Tushnet, \"Legal Fictions, " "Copyright, Fan Fiction, and a New Common Law,\" Loyola of Los Angeles " "Entertainment Law Journal 17 (1997): 651." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7690 msgid "" "For example, imagine you were part of a Star Trek fan club. You gathered " "every month to share trivia, and maybe to enact a kind of fan fiction about " "the show. One person would play Spock, another, Captain Kirk. The characters " "would begin with a plot from a real story, then simply continue " "it.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7702 msgid "" "Before the Internet, this was, in effect, a totally unregulated activity. " "No matter what happened inside your club room, you would never be interfered " "with by the copyright police. You were free in that space to do as you " "wished with this part of our culture. You were allowed to build on it as you " "wished without fear of legal control." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7709 msgid "" "But if you moved your club onto the Internet, and made it generally " "available for others to join, the story would be very different. Bots " "scouring the Net for trademark and copyright infringement would quickly find " "your site. Your posting of fan fiction, depending upon the ownership of the " "series that you're depicting, could well inspire a lawyer's threat. And " "ignoring the lawyer's threat would be extremely costly indeed. The law of " "copyright is extremely efficient. The penalties are severe, and the process " "is quick." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7719 msgid "" "This change in the effective force of the law is caused by a change in the " "ease with which the law can be enforced. That change too shifts the law's " "balance radically. It is as if your car transmitted the speed at which you " "traveled at every moment that you drove; that would be just one step before " "the state started issuing tickets based upon the data you transmitted. That " "is, in effect, what is happening here." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:7728 msgid "Market: Concentration" msgstr "" #. PAGE BREAK 173 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7730 msgid "" "So copyright's duration has increased dramatically—tripled in the past " "thirty years. And copyright's scope has increased as well—from " "regulating only publishers to now regulating just about everyone. And " "copyright's reach has changed, as every action becomes a copy and hence " "presumptively regulated. And as technologists find better ways to control " "the use of content, and as copyright is increasingly enforced through " "technology, copyright's force changes, too. Misuse is easier to find and " "easier to control. This regulation of the creative process, which began as a " "tiny regulation governing a tiny part of the market for creative work, has " "become the single most important regulator of creativity there is. It is a " "massive expansion in the scope of the government's control over innovation " "and creativity; it would be totally unrecognizable to those who gave birth " "to copyright's control." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7748 msgid "" "Still, in my view, all of these changes would not matter much if it weren't " "for one more change that we must also consider. This is a change that is in " "some sense the most familiar, though its significance and scope are not well " "understood. It is the one that creates precisely the reason to be concerned " "about all the other changes I have described." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7755 msgid "" "This is the change in the concentration and integration of the media. In " "the past twenty years, the nature of media ownership has undergone a radical " "alteration, caused by changes in legal rules governing the media. Before " "this change happened, the different forms of media were owned by separate " "media companies. Now, the media is increasingly owned by only a few " "companies. Indeed, after the changes that the FCC announced in June 2003, " "most expect that within a few years, we will live in a world where just " "three companies control more than percent of the media." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7766 msgid "These changes are of two sorts: the scope of concentration, and its nature." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:7769 msgid "BMG" msgstr "" #. f25 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:7775 msgid "" "FCC Oversight: Hearing Before the Senate Commerce, Science and " "Transportation Committee, 108th Cong., 1st sess. (22 May 2003) (statement " "of Senator John McCain)." msgstr "" #. f26 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:7782 msgid "" "Lynette Holloway, \"Despite a Marketing Blitz, CD Sales Continue to Slide,\" " "New York Times, 23 December 2002." msgstr "" #. f27 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:7788 msgid "" "Molly Ivins, \"Media Consolidation Must Be Stopped,\" Charleston Gazette, 31 " "May 2003." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> #: freeculture.xml:7791 msgid "McCain, John" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7771 msgid "" "Changes in scope are the easier ones to describe. As Senator John McCain " "summarized the data produced in the FCC's review of media ownership, \"five " "companies control 85 percent of our media sources.\"<placeholder " "type=\"footnote\" id=\"0\"/> The five recording labels of Universal Music " "Group, BMG, Sony Music Entertainment, Warner Music Group, and EMI control " "84.8 percent of the U.S. music market.<placeholder type=\"footnote\" " "id=\"1\"/> The \"five largest cable companies pipe programming to 74 percent " "of the cable subscribers nationwide.\"<placeholder type=\"footnote\" " "id=\"2\"/> <placeholder type=\"indexterm\" id=\"3\"/>" msgstr "" #. PAGE BREAK 174 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7794 msgid "" "The story with radio is even more dramatic. Before deregulation, the " "nation's largest radio broadcasting conglomerate owned fewer than " "seventy-five stations. Today one company owns more than 1,200 stations. " "During that period of consolidation, the total number of radio owners " "dropped by 34 percent. Today, in most markets, the two largest broadcasters " "control 74 percent of that market's revenues. Overall, just four companies " "control 90 percent of the nation's radio advertising revenues." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7805 msgid "" "Newspaper ownership is becoming more concentrated as well. Today, there are " "six hundred fewer daily newspapers in the United States than there were " "eighty years ago, and ten companies control half of the nation's " "circulation. There are twenty major newspaper publishers in the United " "States. The top ten film studios receive 99 percent of all film revenue. The " "ten largest cable companies account for 85 percent of all cable " "revenue. This is a market far from the free press the framers sought to " "protect. Indeed, it is a market that is quite well protected— by the " "market." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para><indexterm><primary> #: freeculture.xml:7819 freeculture.xml:7836 msgid "Fallows, James" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7816 msgid "" "Concentration in size alone is one thing. The more invidious change is in " "the nature of that concentration. As author James Fallows put it in a recent " "article about Rupert Murdoch, <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> #: freeculture.xml:7834 msgid "" "James Fallows, \"The Age of Murdoch,\" Atlantic Monthly (September 2003): " "89. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:7823 msgid "" "Murdoch's companies now constitute a production system unmatched in its " "integration. They supply content—Fox movies . . . Fox TV shows " ". . . Fox-controlled sports broadcasts, plus newspapers and books. They sell " "the content to the public and to advertisers—in newspapers, on the " "broadcast network, on the cable channels. And they operate the physical " "distribution system through which the content reaches the " "customers. Murdoch's satellite systems now distribute News Corp. content in " "Europe and Asia; if Murdoch becomes DirecTV's largest single owner, that " "system will serve the same function in the United States.<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7841 msgid "" "The pattern with Murdoch is the pattern of modern media. Not just large " "companies owning many radio stations, but a few companies owning as many " "outlets of media as possible. A picture describes this pattern better than a " "thousand words could do:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure><title> #: freeculture.xml:7847 msgid "Pattern of modern media ownership." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><figure> #: freeculture.xml:7848 msgid "<graphic fileref=\"images/1761.png\"></graphic>" msgstr "" #. PAGE BREAK 175 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7852 msgid "" "Does this concentration matter? Will it affect what is made, or what is " "distributed? Or is it merely a more efficient way to produce and distribute " "content?" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7857 msgid "" "My view was that concentration wouldn't matter. I thought it was nothing " "more than a more efficient financial structure. But now, after reading and " "listening to a barrage of creators try to convince me to the contrary, I am " "beginning to change my mind." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7863 msgid "" "Here's a representative story that begins to suggest how this integration " "may matter." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:7866 msgid "Lear, Norman" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:7868 freeculture.xml:7932 msgid "All in the Family" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7870 msgid "" "In 1969, Norman Lear created a pilot for All in the Family. He took the " "pilot to ABC. The network didn't like it. It was too edgy, they told " "Lear. Make it again. Lear made a second pilot, more edgy than the first. ABC " "was exasperated. You're missing the point, they told Lear. We wanted less " "edgy, not more." msgstr "" #. f29 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:7882 msgid "" "Leonard Hill, \"The Axis of Access,\" remarks before Weidenbaum Center " "Forum, \"Entertainment Economics: The Movie Industry,\" St. Louis, Missouri, " "3 April 2003 (transcript of prepared remarks available at <ulink " "url=\"http://free-culture.cc/notes/\">link #28</ulink>; for the Lear story, " "not included in the prepared remarks, see <ulink " "url=\"http://free-culture.cc/notes/\">link #29</ulink>)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7877 msgid "" "Rather than comply, Lear simply took the show elsewhere. CBS was happy to " "have the series; ABC could not stop Lear from walking. The copyrights that " "Lear held assured an independence from network control.<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. PAGE BREAK 176 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7894 msgid "" "The network did not control those copyrights because the law forbade the " "networks from controlling the content they syndicated. The law required a " "separation between the networks and the content producers; that separation " "would guarantee Lear freedom. And as late as 1992, because of these rules, " "the vast majority of prime time television—75 percent of it—was " "\"independent\" of the networks." msgstr "" #. f30 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:7913 msgid "" "NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media " "Ownership Before the Senate Commerce Committee, 108th Cong., 1st " "sess. (2003) (testimony of Gene Kimmelman on behalf of Consumers Union and " "the Consumer Federation of America), available at <ulink " "url=\"http://free-culture.cc/notes/\">link #30</ulink>. Kimmelman quotes " "Victoria Riskin, president of Writers Guild of America, West, in her Remarks " "at FCC En Banc Hearing, Richmond, Virginia, 27 February 2003." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7903 msgid "" "In 1994, the FCC abandoned the rules that required this independence. After " "that change, the networks quickly changed the balance. In 1985, there were " "twenty-five independent television production studios; in 2002, only five " "independent television studios remained. \"In 1992, only 15 percent of new " "series were produced for a network by a company it controlled. Last year, " "the percentage of shows produced by controlled companies more than " "quintupled to 77 percent.\" \"In 1992, 16 new series were produced " "independently of conglomerate control, last year there was " "one.\"<placeholder type=\"footnote\" id=\"0\"/> In 2002, 75 percent of prime " "time television was owned by the networks that ran it. \"In the ten-year " "period between 1992 and 2002, the number of prime time television hours per " "week produced by network studios increased over 200%, whereas the number of " "prime time television hours per week produced by independent studios " "decreased 63%.\"<placeholder type=\"footnote\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7934 msgid "" "Today, another Norman Lear with another All in the Family would find that he " "had the choice either to make the show less edgy or to be fired: The content " "of any show developed for a network is increasingly owned by the network." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> #: freeculture.xml:7943 msgid "Diller, Barry" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> #: freeculture.xml:7944 msgid "Moyers, Bill" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7940 msgid "" "While the number of channels has increased dramatically, the ownership of " "those channels has narrowed to an ever smaller and smaller few. As Barry " "Diller said to Bill Moyers, <placeholder type=\"indexterm\" id=\"0\"/> " "<placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. f32 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> #: freeculture.xml:7957 msgid "" "\"Barry Diller Takes on Media Deregulation,\" Now with Bill Moyers, Bill " "Moyers, 25 April 2003, edited transcript available at <ulink " "url=\"http://free-culture.cc/notes/\">link #31</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:7948 msgid "" "Well, if you have companies that produce, that finance, that air on their " "channel and then distribute worldwide everything that goes through their " "controlled distribution system, then what you get is fewer and fewer actual " "voices participating in the process. [We u]sed to have dozens and dozens of " "thriving independent production companies producing television programs. Now " "you have less than a handful.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7964 msgid "" "This narrowing has an effect on what is produced. The product of such large " "and concentrated networks is increasingly homogenous. Increasingly " "safe. Increasingly sterile. The product of news shows from networks like " "this is increasingly tailored to the message the network wants to " "convey. This is not the communist party, though from the inside, it must " "feel a bit like the communist party. No one can question without risk of " "consequence—not necessarily banishment to Siberia, but punishment " "nonetheless. Independent, critical, different views are quashed. This is not " "the environment for a democracy." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:7975 msgid "Clark, Kim B." msgstr "" #. f33 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:7984 msgid "" "Clayton M. Christensen, The Innovator's Dilemma: The Revolutionary National " "Bestseller that Changed the Way We Do Business (Cambridge: Harvard Business " "School Press, 1997). Christensen acknowledges that the idea was first " "suggested by Dean Kim Clark. See Kim B. Clark, \"The Interaction of Design " "Hierarchies and Market Concepts in Technological Evolution,\" Research " "Policy 14 (1985): 235–51. For a more recent study, see Richard Foster " "and Sarah Kaplan, Creative Destruction: Why Companies That Are Built to Last " "Underperform the Market—and How to Successfully Transform Them (New " "York: Currency/Doubleday, 2001)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:7977 msgid "" "Economics itself offers a parallel that explains why this integration " "affects creativity. Clay Christensen has written about the \"Innovator's " "Dilemma\": the fact that large traditional firms find it rational to ignore " "new, breakthrough technologies that compete with their core business. The " "same analysis could help explain why large, traditional media companies " "would find it rational to ignore new cultural trends.<placeholder " "type=\"footnote\" id=\"0\"/> Lumbering giants not only don't, but should " "not, sprint. Yet if the field is only open to the giants, there will be far " "too little sprinting. <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8001 msgid "" "I don't think we know enough about the economics of the media market to say " "with certainty what concentration and integration will do. The efficiencies " "are important, and the effect on culture is hard to measure." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8007 msgid "" "But there is a quintessentially obvious example that does strongly suggest " "the concern." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8011 msgid "" "In addition to the copyright wars, we're in the middle of the drug " "wars. Government policy is strongly directed against the drug cartels; " "criminal and civil courts are filled with the consequences of this battle." msgstr "" #. PAGE BREAK 178 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8016 msgid "" "Let me hereby disqualify myself from any possible appointment to any " "position in government by saying I believe this war is a profound mistake. I " "am not pro drugs. Indeed, I come from a family once wrecked by " "drugs—though the drugs that wrecked my family were all quite legal. I " "believe this war is a profound mistake because the collateral damage from it " "is so great as to make waging the war insane. When you add together the " "burdens on the criminal justice system, the desperation of generations of " "kids whose only real economic opportunities are as drug warriors, the " "queering of constitutional protections because of the constant surveillance " "this war requires, and, most profoundly, the total destruction of the legal " "systems of many South American nations because of the power of the local " "drug cartels, I find it impossible to believe that the marginal benefit in " "reduced drug consumption by Americans could possibly outweigh these costs." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8035 msgid "" "You may not be convinced. That's fine. We live in a democracy, and it is " "through votes that we are to choose policy. But to do that, we depend " "fundamentally upon the press to help inform Americans about these issues." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8041 msgid "" "Beginning in 1998, the Office of National Drug Control Policy launched a " "media campaign as part of the \"war on drugs.\" The campaign produced scores " "of short film clips about issues related to illegal drugs. In one series " "(the Nick and Norm series) two men are in a bar, discussing the idea of " "legalizing drugs as a way to avoid some of the collateral damage from the " "war. One advances an argument in favor of drug legalization. The other " "responds in a powerful and effective way against the argument of the " "first. In the end, the first guy changes his mind (hey, it's " "television). The plug at the end is a damning attack on the pro-legalization " "campaign." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8053 msgid "" "Fair enough. It's a good ad. Not terribly misleading. It delivers its " "message well. It's a fair and reasonable message." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8057 msgid "" "But let's say you think it is a wrong message, and you'd like to run a " "countercommercial. Say you want to run a series of ads that try to " "demonstrate the extraordinary collateral harm that comes from the drug " "war. Can you do it?" msgstr "" #. PAGE BREAK 179 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8063 msgid "" "Well, obviously, these ads cost lots of money. Assume you raise the " "money. Assume a group of concerned citizens donates all the money in the " "world to help you get your message out. Can you be sure your message will be " "heard then?" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> #: freeculture.xml:8104 msgid "Comcast" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> #: freeculture.xml:8105 msgid "Marijuana Policy Project" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> #: freeculture.xml:8106 msgid "WJOA" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:8080 msgid "" "The Marijuana Policy Project, in February 2003, sought to place ads that " "directly responded to the Nick and Norm series on stations within the " "Washington, D.C., area. Comcast rejected the ads as \"against [their] " "policy.\" The local NBC affiliate, WRC, rejected the ads without reviewing " "them. The local ABC affiliate, WJOA, originally agreed to run the ads and " "accepted payment to do so, but later decided not to run the ads and returned " "the collected fees. Interview with Neal Levine, 15 October 2003. These " "restrictions are, of course, not limited to drug policy. See, for example, " "Nat Ives, \"On the Issue of an Iraq War, Advocacy Ads Meet with Rejection " "from TV Networks,\" New York Times, 13 March 2003, C4. Outside of " "election-related air time there is very little that the FCC or the courts " "are willing to do to even the playing field. For a general overview, see " "Rhonda Brown, \"Ad Hoc Access: The Regulation of Editorial Advertising on " "Television and Radio,\" Yale Law and Policy Review 6 (1988): 449–79, " "and for a more recent summary of the stance of the FCC and the courts, see " "Radio-Television News Directors Association v. FCC, 184 F. 3d 872 " "(D.C. Cir. 1999). Municipal authorities exercise the same authority as the " "networks. In a recent example from San Francisco, the San Francisco transit " "authority rejected an ad that criticized its Muni diesel buses. Phillip " "Matier and Andrew Ross, \"Antidiesel Group Fuming After Muni Rejects Ad,\" " "SFGate.com, 16 June 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #32</ulink>. The ground was that " "the criticism was \"too controversial.\" <placeholder type=\"indexterm\" " "id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/> <placeholder " "type=\"indexterm\" id=\"2\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8070 msgid "" "No. You cannot. Television stations have a general policy of avoiding " "\"controversial\" ads. Ads sponsored by the government are deemed " "uncontroversial; ads disagreeing with the government are controversial. " "This selectivity might be thought inconsistent with the First Amendment, but " "the Supreme Court has held that stations have the right to choose what they " "run. Thus, the major channels of commercial media will refuse one side of a " "crucial debate the opportunity to present its case. And the courts will " "defend the rights of the stations to be this biased.<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8110 msgid "" "I'd be happy to defend the networks' rights, as well—if we lived in a " "media market that was truly diverse. But concentration in the media throws " "that condition into doubt. If a handful of companies control access to the " "media, and that handful of companies gets to decide which political " "positions it will allow to be promoted on its channels, then in an obvious " "and important way, concentration matters. You might like the positions the " "handful of companies selects. But you should not like a world in which a " "mere few get to decide which issues the rest of us get to know about." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:8122 msgid "Together" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8124 msgid "" "There is something innocent and obvious about the claim of the copyright " "warriors that the government should \"protect my property.\" In the " "abstract, it is obviously true and, ordinarily, totally harmless. No sane " "sort who is not an anarchist could disagree." msgstr "" #. PAGE BREAK 180 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8130 msgid "" "But when we see how dramatically this \"property\" has changed— when " "we recognize how it might now interact with both technology and markets to " "mean that the effective constraint on the liberty to cultivate our culture " "is dramatically different—the claim begins to seem less innocent and " "obvious. Given (1) the power of technology to supplement the law's control, " "and (2) the power of concentrated markets to weaken the opportunity for " "dissent, if strictly enforcing the massively expanded \"property\" rights " "granted by copyright fundamentally changes the freedom within this culture " "to cultivate and build upon our past, then we have to ask whether this " "property should be redefined." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8146 msgid "" "Not starkly. Or absolutely. My point is not that we should abolish copyright " "or go back to the eighteenth century. That would be a total mistake, " "disastrous for the most important creative enterprises within our culture " "today." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8152 msgid "" "But there is a space between zero and one, Internet culture " "notwithstanding. And these massive shifts in the effective power of " "copyright regulation, tied to increased concentration of the content " "industry and resting in the hands of technology that will increasingly " "enable control over the use of culture, should drive us to consider whether " "another adjustment is called for. Not an adjustment that increases " "copyright's power. Not an adjustment that increases its term. Rather, an " "adjustment to restore the balance that has traditionally defined copyright's " "regulation—a weakening of that regulation, to strengthen creativity." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8164 msgid "" "Copyright law has not been a rock of Gibraltar. It's not a set of constant " "commitments that, for some mysterious reason, teenagers and geeks now " "flout. Instead, copyright power has grown dramatically in a short period of " "time, as the technologies of distribution and creation have changed and as " "lobbyists have pushed for more control by copyright holders. Changes in the " "past in response to changes in technology suggest that we may well need " "similar changes in the future. And these changes have to be reductions in " "the scope of copyright, in response to the extraordinary increase in control " "that technology and the market enable." msgstr "" #. PAGE BREAK 181 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8176 msgid "" "For the single point that is lost in this war on pirates is a point that we " "see only after surveying the range of these changes. When you add together " "the effect of changing law, concentrated markets, and changing technology, " "together they produce an astonishing conclusion: Never in our history have " "fewer had a legal right to control more of the development of our culture " "than now." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:8199 msgid "" "Siva Vaidhyanathan captures a similar point in his \"four surrenders\" of " "copyright law in the digital age. See Vaidhyanathan, 159–60. " "<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8185 msgid "" "Not when copyrights were perpetual, for when copyrights were perpetual, they " "affected only that precise creative work. Not when only publishers had the " "tools to publish, for the market then was much more diverse. Not when there " "were only three television networks, for even then, newspapers, film " "studios, radio stations, and publishers were independent of the " "networks. Never has copyright protected such a wide range of rights, against " "as broad a range of actors, for a term that was remotely as long. This form " "of regulation—a tiny regulation of a tiny part of the creative energy " "of a nation at the founding—is now a massive regulation of the overall " "creative process. Law plus technology plus the market now interact to turn " "this historically benign regulation into the most significant regulation of " "culture that our free society has known.<placeholder type=\"footnote\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8205 msgid "This has been a long chapter. Its point can now be briefly stated." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8208 msgid "" "At the start of this book, I distinguished between commercial and " "noncommercial culture. In the course of this chapter, I have distinguished " "between copying a work and transforming it. We can now combine these two " "distinctions and draw a clear map of the changes that copyright law has " "undergone. In 1790, the law looked like this:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> #: freeculture.xml:8221 freeculture.xml:8259 msgid "PUBLISH" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> #: freeculture.xml:8222 freeculture.xml:8260 freeculture.xml:8299 freeculture.xml:8332 msgid "TRANSFORM" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> #: freeculture.xml:8227 freeculture.xml:8265 freeculture.xml:8304 freeculture.xml:8337 msgid "Commercial" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> #: freeculture.xml:8228 freeculture.xml:8266 freeculture.xml:8267 freeculture.xml:8305 freeculture.xml:8306 freeculture.xml:8338 freeculture.xml:8339 freeculture.xml:8343 freeculture.xml:8344 msgid "©" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> #: freeculture.xml:8229 freeculture.xml:8233 freeculture.xml:8234 freeculture.xml:8271 freeculture.xml:8272 freeculture.xml:8311 msgid "Free" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> #: freeculture.xml:8232 freeculture.xml:8270 freeculture.xml:8309 freeculture.xml:8342 msgid "Noncommercial" msgstr "" #. PAGE BREAK 182 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8241 msgid "" "The act of publishing a map, chart, and book was regulated by copyright " "law. Nothing else was. Transformations were free. And as copyright attached " "only with registration, and only those who intended to benefit commercially " "would register, copying through publishing of noncommercial work was also " "free." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8250 msgid "By the end of the nineteenth century, the law had changed to this:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8279 msgid "" "Derivative works were now regulated by copyright law—if published, " "which again, given the economics of publishing at the time, means if offered " "commercially. But noncommercial publishing and transformation were still " "essentially free." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8285 msgid "" "In 1909 the law changed to regulate copies, not publishing, and after this " "change, the scope of the law was tied to technology. As the technology of " "copying became more prevalent, the reach of the law expanded. Thus by 1975, " "as photocopying machines became more common, we could say the law began to " "look like this:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><thead><row><entry> #: freeculture.xml:8298 freeculture.xml:8331 msgid "COPY" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><table><tgroup><tbody><row><entry> #: freeculture.xml:8310 msgid "©/Free" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8318 msgid "" "The law was interpreted to reach noncommercial copying through, say, copy " "machines, but still much of copying outside of the commercial market " "remained free. But the consequence of the emergence of digital technologies, " "especially in the context of a digital network, means that the law now looks " "like this:" msgstr "" #. PAGE BREAK 183 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8351 msgid "" "Every realm is governed by copyright law, whereas before most creativity was " "not. The law now regulates the full range of creativity— commercial or " "not, transformative or not—with the same rules designed to regulate " "commercial publishers." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8359 msgid "" "Obviously, copyright law is not the enemy. The enemy is regulation that does " "no good. So the question that we should be asking just now is whether " "extending the regulations of copyright law into each of these domains " "actually does any good." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8365 msgid "" "I have no doubt that it does good in regulating commercial copying. But I " "also have no doubt that it does more harm than good when regulating (as it " "regulates just now) noncommercial copying and, especially, noncommercial " "transformation. And increasingly, for the reasons sketched especially in " "chapters 7 and 8, one might well wonder whether it does more harm than good " "for commercial transformation. More commercial transformative work would be " "created if derivative rights were more sharply restricted." msgstr "" #. f36 #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:8381 msgid "" "It was the single most important contribution of the legal realist movement " "to demonstrate that all property rights are always crafted to balance public " "and private interests. See Thomas C. Grey, \"The Disintegration of " "Property,\" in Nomos XXII: Property, J. Roland Pennock and John W. Chapman, " "eds. (New York: New York University Press, 1980)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8375 msgid "" "The issue is therefore not simply whether copyright is property. Of course " "copyright is a kind of \"property,\" and of course, as with any property, " "the state ought to protect it. But first impressions notwithstanding, " "historically, this property right (as with all property rights<placeholder " "type=\"footnote\" id=\"0\"/>) has been crafted to balance the important " "need to give authors and artists incentives with the equally important need " "to assure access to creative work. This balance has always been struck in " "light of new technologies. And for almost half of our tradition, the " "\"copyright\" did not control at all the freedom of others to build upon or " "transform a creative work. American culture was born free, and for almost " "180 years our country consistently protected a vibrant and rich free " "culture." msgstr "" #. PAGE BREAK 184 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8398 msgid "" "We achieved that free culture because our law respected important limits on " "the scope of the interests protected by \"property.\" The very birth of " "\"copyright\" as a statutory right recognized those limits, by granting " "copyright owners protection for a limited time only (the story of chapter " "6). The tradition of \"fair use\" is animated by a similar concern that is " "increasingly under strain as the costs of exercising any fair use right " "become unavoidably high (the story of chapter 7). Adding statutory rights " "where markets might stifle innovation is another familiar limit on the " "property right that copyright is (chapter 8). And granting archives and " "libraries a broad freedom to collect, claims of property notwithstanding, is " "a crucial part of guaranteeing the soul of a culture (chapter 9). Free " "cultures, like free markets, are built with property. But the nature of the " "property that builds a free culture is very different from the extremist " "vision that dominates the debate today." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8417 msgid "" "Free culture is increasingly the casualty in this war on piracy. In response " "to a real, if not yet quantified, threat that the technologies of the " "Internet present to twentieth-century business models for producing and " "distributing culture, the law and technology are being transformed in a way " "that will undermine our tradition of free culture. The property right that " "is copyright is no longer the balanced right that it was, or was intended to " "be. The property right that is copyright has become unbalanced, tilted " "toward an extreme. The opportunity to create and transform becomes weakened " "in a world in which creation requires permission and creativity must check " "with a lawyer." msgstr "" #. type: Content of: <book><chapter><title> #: freeculture.xml:8434 msgid "PUZZLES" msgstr "" #. type: Content of: <book><chapter><sect1><title> #: freeculture.xml:8438 msgid "CHAPTER ELEVEN: Chimera" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:8440 msgid "chimeras" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:8443 msgid "Wells, H. G." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:8446 msgid ""Country of the Blind, The" (Wells)" msgstr "" #. f1. #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:8454 msgid "" "H. G. Wells, \"The Country of the Blind\" (1904, 1911). See H. G. Wells, The " "Country of the Blind and Other Stories, Michael Sherborne, ed. (New York: " "Oxford University Press, 1996)." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8450 msgid "" "In a well-known short story by H. G. Wells, a mountain climber named Nunez " "trips (literally, down an ice slope) into an unknown and isolated valley in " "the Peruvian Andes.<placeholder type=\"footnote\" id=\"0\"/> The valley is " "extraordinarily beautiful, with \"sweet water, pasture, an even climate, " "slopes of rich brown soil with tangles of a shrub that bore an excellent " "fruit.\" But the villagers are all blind. Nunez takes this as an " "opportunity. \"In the Country of the Blind,\" he tells himself, \"the " "One-Eyed Man is King.\" So he resolves to live with the villagers to explore " "life as a king." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8466 msgid "" "Things don't go quite as he planned. He tries to explain the idea of sight " "to the villagers. They don't understand. He tells them they are \"blind.\" " "They don't have the word blind. They think he's just thick. Indeed, as they " "increasingly notice the things he can't do (hear the sound of grass being " "stepped on, for example), they increasingly try to control him. He, in turn, " "becomes increasingly frustrated. \"`You don't understand,' he cried, in a " "voice that was meant to be great and resolute, and which broke. `You are " "blind and I can see. Leave me alone!'\"" msgstr "" #. PAGE BREAK 187 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8478 msgid "" "The villagers don't leave him alone. Nor do they see (so to speak) the " "virtue of his special power. Not even the ultimate target of his affection, " "a young woman who to him seems \"the most beautiful thing in the whole of " "creation,\" understands the beauty of sight. Nunez's description of what he " "sees \"seemed to her the most poetical of fancies, and she listened to his " "description of the stars and the mountains and her own sweet white-lit " "beauty as though it was a guilty indulgence.\" \"She did not believe,\" " "Wells tells us, and \"she could only half understand, but she was " "mysteriously delighted.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8489 msgid "" "When Nunez announces his desire to marry his \"mysteriously delighted\" " "love, the father and the village object. \"You see, my dear,\" her father " "instructs, \"he's an idiot. He has delusions. He can't do anything right.\" " "They take Nunez to the village doctor." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8495 msgid "" "After a careful examination, the doctor gives his opinion. \"His brain is " "affected,\" he reports." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8499 msgid "" "\"What affects it?\" the father asks. \"Those queer things that are called " "the eyes . . . are diseased . . . in such a way as to affect his brain.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8504 msgid "" "The doctor continues: \"I think I may say with reasonable certainty that in " "order to cure him completely, all that we need to do is a simple and easy " "surgical operation—namely, to remove these irritant bodies [the " "eyes].\"" msgstr "" #. PAGE BREAK 188 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8510 msgid "" "\"Thank Heaven for science!\" says the father to the doctor. They inform " "Nunez of this condition necessary for him to be allowed his bride. (You'll " "have to read the original to learn what happens in the end. I believe in " "free culture, but never in giving away the end of a story.) It sometimes " "happens that the eggs of twins fuse in the mother's womb. That fusion " "produces a \"chimera.\" A chimera is a single creature with two sets of " "DNA. The DNA in the blood, for example, might be different from the DNA of " "the skin. This possibility is an underused plot for murder mysteries. \"But " "the DNA shows with 100 percent certainty that she was not the person whose " "blood was at the scene. . . .\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8527 msgid "" "Before I had read about chimeras, I would have said they were impossible. A " "single person can't have two sets of DNA. The very idea of DNA is that it is " "the code of an individual. Yet in fact, not only can two individuals have " "the same set of DNA (identical twins), but one person can have two different " "sets of DNA (a chimera). Our understanding of a \"person\" should reflect " "this reality." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8535 msgid "" "The more I work to understand the current struggle over copyright and " "culture, which I've sometimes called unfairly, and sometimes not unfairly " "enough, \"the copyright wars,\" the more I think we're dealing with a " "chimera. For example, in the battle over the question \"What is p2p file " "sharing?\" both sides have it right, and both sides have it wrong. One side " "says, \"File sharing is just like two kids taping each others' " "records—the sort of thing we've been doing for the last thirty years " "without any question at all.\" That's true, at least in part. When I tell my " "best friend to try out a new CD that I've bought, but rather than just send " "the CD, I point him to my p2p server, that is, in all relevant respects, " "just like what every executive in every recording company no doubt did as a " "kid: sharing music." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8549 msgid "" "But the description is also false in part. For when my p2p server is on a " "p2p network through which anyone can get access to my music, then sure, my " "friends can get access, but it stretches the meaning of \"friends\" beyond " "recognition to say \"my ten thousand best friends\" can get access. Whether " "or not sharing my music with my best friend is what \"we have always been " "allowed to do,\" we have not always been allowed to share music with \"our " "ten thousand best friends.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8558 msgid "" "Likewise, when the other side says, \"File sharing is just like walking into " "a Tower Records and taking a CD off the shelf and walking out with it,\" " "that's true, at least in part. If, after Lyle Lovett (finally) releases a " "new album, rather than buying it, I go to Kazaa and find a free copy to " "take, that is very much like stealing a copy from Tower. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. PAGE BREAK 189 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8569 msgid "" "But it is not quite stealing from Tower. After all, when I take a CD from " "Tower Records, Tower has one less CD to sell. And when I take a CD from " "Tower Records, I get a bit of plastic and a cover, and something to show on " "my shelves. (And, while we're at it, we could also note that when I take a " "CD from Tower Records, the maximum fine that might be imposed on me, under " "California law, at least, is $1,000. According to the RIAA, by contrast, if " "I download a ten-song CD, I'm liable for $1,500,000 in damages.)" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8579 msgid "" "The point is not that it is as neither side describes. The point is that it " "is both—both as the RIAA describes it and as Kazaa describes it. It is " "a chimera. And rather than simply denying what the other side asserts, we " "need to begin to think about how we should respond to this chimera. What " "rules should govern it?" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> #: freeculture.xml:8625 freeculture.xml:9328 msgid "Berman, Howard L." msgstr "" #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:8595 msgid "" "For an excellent summary, see the report prepared by GartnerG2 and the " "Berkman Center for Internet and Society at Harvard Law School, \"Copyright " "and Digital Media in a Post-Napster World,\" 27 June 2003, available at " "<ulink url=\"http://free-culture.cc/notes/\">link #33</ulink>. Reps. John " "Conyers Jr. (D-Mich.) and Howard L. Berman (D-Calif.) have introduced a bill " "that would treat unauthorized on-line copying as a felony offense with " "punishments ranging as high as five years imprisonment; see Jon Healey, " "\"House Bill Aims to Up Stakes on Piracy,\" Los Angeles Times, 17 July 2003, " "available at <ulink url=\"http://free-culture.cc/notes/\">link " "#34</ulink>. Civil penalties are currently set at $150,000 per copied " "song. For a recent (and unsuccessful) legal challenge to the RIAA's demand " "that an ISP reveal the identity of a user accused of sharing more than 600 " "songs through a family computer, see RIAA v. Verizon Internet Services (In " "re. Verizon Internet Services), 240 F. Supp. 2d 24 (D.D.C. 2003). Such a " "user could face liability ranging as high as $90 million. Such astronomical " "figures furnish the RIAA with a powerful arsenal in its prosecution of file " "sharers. Settlements ranging from $12,000 to $17,500 for four students " "accused of heavy file sharing on university networks must have seemed a mere " "pittance next to the $98 billion the RIAA could seek should the matter " "proceed to court. See Elizabeth Young, \"Downloading Could Lead to Fines,\" " "redandblack.com, August 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #35</ulink>. For an example of " "the RIAA's targeting of student file sharing, and of the subpoenas issued to " "universities to reveal student file-sharer identities, see James Collins, " "\"RIAA Steps Up Bid to Force BC, MIT to Name Students,\" Boston Globe, 8 " "August 2003, D3, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #36</ulink>. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8586 msgid "" "We could respond by simply pretending that it is not a chimera. We could, " "with the RIAA, decide that every act of file sharing should be a felony. We " "could prosecute families for millions of dollars in damages just because " "file sharing occurred on a family computer. And we can get universities to " "monitor all computer traffic to make sure that no computer is used to commit " "this crime. These responses might be extreme, but each of them has either " "been proposed or actually implemented.<placeholder type=\"footnote\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8631 msgid "" "Alternatively, we could respond to file sharing the way many kids act as " "though we've responded. We could totally legalize it. Let there be no " "copyright liability, either civil or criminal, for making copyrighted " "content available on the Net. Make file sharing like gossip: regulated, if " "at all, by social norms but not by law." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8638 msgid "" "Either response is possible. I think either would be a mistake. Rather than " "embrace one of these two extremes, we should embrace something that " "recognizes the truth in both. And while I end this book with a sketch of a " "system that does just that, my aim in the next chapter is to show just how " "awful it would be for us to adopt the zero-tolerance extreme. I believe " "either extreme would be worse than a reasonable alternative. But I believe " "the zero-tolerance solution would be the worse of the two extremes." msgstr "" #. PAGE BREAK 190 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8650 msgid "" "Yet zero tolerance is increasingly our government's policy. In the middle of " "the chaos that the Internet has created, an extraordinary land grab is " "occurring. The law and technology are being shifted to give content holders " "a kind of control over our culture that they have never had before. And in " "this extremism, many an opportunity for new innovation and new creativity " "will be lost." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8658 msgid "" "I'm not talking about the opportunities for kids to \"steal\" music. My " "focus instead is the commercial and cultural innovation that this war will " "also kill. We have never seen the power to innovate spread so broadly among " "our citizens, and we have just begun to see the innovation that this power " "will unleash. Yet the Internet has already seen the passing of one cycle of " "innovation around technologies to distribute content. The law is responsible " "for this passing. As the vice president for global public policy at one of " "these new innovators, eMusic.com, put it when criticizing the DMCA's added " "protection for copyrighted material," msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:8671 msgid "" "eMusic opposes music piracy. We are a distributor of copyrighted material, " "and we want to protect those rights." msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:8675 msgid "" "But building a technology fortress that locks in the clout of the major " "labels is by no means the only way to protect copyright interests, nor is it " "necessarily the best. It is simply too early to answer that question. Market " "forces operating naturally may very well produce a totally different " "industry model." msgstr "" #. f3. #. type: Content of: <book><chapter><sect1><blockquote><para><footnote><para> #: freeculture.xml:8693 msgid "" "WIPO and the DMCA One Year Later: Assessing Consumer Access to Digital " "Entertainment on the Internet and Other Media: Hearing Before the " "Subcommittee on Telecommunications, Trade, and Consumer Protection, House " "Committee on Commerce, 106th Cong. 29 (1999) (statement of Peter Harter, " "vice president, Global Public Policy and Standards, EMusic.com), available " "in LEXIS, Federal Document Clearing House Congressional Testimony File." msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:8683 msgid "" "This is a critical point. The choices that industry sectors make with " "respect to these systems will in many ways directly shape the market for " "digital media and the manner in which digital media are distributed. This in " "turn will directly influence the options that are available to consumers, " "both in terms of the ease with which they will be able to access digital " "media and the equipment that they will require to do so. Poor choices made " "this early in the game will retard the growth of this market, hurting " "everyone's interests.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:8707 freeculture.xml:9058 msgid "Vivendi Universal" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8704 msgid "" "In April 2001, eMusic.com was purchased by Vivendi Universal, one of \"the " "major labels.\" Its position on these matters has now changed. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8710 msgid "" "Reversing our tradition of tolerance now will not merely quash piracy. It " "will sacrifice values that are important to this culture, and will kill " "opportunities that could be extraordinarily valuable." msgstr "" #. type: Content of: <book><chapter><sect1><title> #: freeculture.xml:8718 msgid "CHAPTER TWELVE: Harms" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8721 msgid "" "To fight \"piracy,\" to protect \"property,\" the content industry has " "launched a war. Lobbying and lots of campaign contributions have now brought " "the government into this war. As with any war, this one will have both " "direct and collateral damage. As with any war of prohibition, these damages " "will be suffered most by our own people." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8729 msgid "" "My aim so far has been to describe the consequences of this war, in " "particular, the consequences for \"free culture.\" But my aim now is to " "extend this description of consequences into an argument. Is this war " "justified?" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8736 msgid "" "In my view, it is not. There is no good reason why this time, for the first " "time, the law should defend the old against the new, just when the power of " "the property called \"intellectual property\" is at its greatest in our " "history." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8744 msgid "" "Yet \"common sense\" does not see it this way. Common sense is still on the " "side of the Causbys and the content industry. The extreme claims of control " "in the name of property still resonate; the uncritical rejection of " "\"piracy\" still has play." msgstr "" #. PAGE BREAK 193 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:8751 msgid "" "There will be many consequences of continuing this war. I want to describe " "just three. All three might be said to be unintended. I am quite confident " "the third is unintended. I'm less sure about the first two. The first two " "protect modern RCAs, but there is no Howard Armstrong in the wings to fight " "today's monopolists of culture." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:8758 msgid "Constraining Creators" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8760 msgid "" "In the next ten years we will see an explosion of digital technologies. " "These technologies will enable almost anyone to capture and share " "content. Capturing and sharing content, of course, is what humans have done " "since the dawn of man. It is how we learn and communicate. But capturing and " "sharing through digital technology is different. The fidelity and power are " "different. You could send an e-mail telling someone about a joke you saw on " "Comedy Central, or you could send the clip. You could write an essay about " "the inconsistencies in the arguments of the politician you most love to " "hate, or you could make a short film that puts statement against " "statement. You could write a poem to express your love, or you could weave " "together a string—a mash-up— of songs from your favorite artists " "in a collage and make it available on the Net." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8775 msgid "" "This digital \"capturing and sharing\" is in part an extension of the " "capturing and sharing that has always been integral to our culture, and in " "part it is something new. It is continuous with the Kodak, but it explodes " "the boundaries of Kodak-like technologies. The technology of digital " "\"capturing and sharing\" promises a world of extraordinarily diverse " "creativity that can be easily and broadly shared. And as that creativity is " "applied to democracy, it will enable a broad range of citizens to use " "technology to express and criticize and contribute to the culture all " "around." msgstr "" #. PAGE BREAK 194 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8786 msgid "" "Technology has thus given us an opportunity to do something with culture " "that has only ever been possible for individuals in small groups, isolated " "from others. Think about an old man telling a story to a collection of " "neighbors in a small town. Now imagine that same storytelling extended " "across the globe." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8796 msgid "" "Yet all this is possible only if the activity is presumptively legal. In the " "current regime of legal regulation, it is not. Forget file sharing for a " "moment. Think about your favorite amazing sites on the Net. Web sites that " "offer plot summaries from forgotten television shows; sites that catalog " "cartoons from the 1960s; sites that mix images and sound to criticize " "politicians or businesses; sites that gather newspaper articles on remote " "topics of science or culture. There is a vast amount of creative work spread " "across the Internet. But as the law is currently crafted, this work is " "presumptively illegal." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> #: freeculture.xml:8824 freeculture.xml:8845 msgid "Worldcom" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:8819 msgid "" "See Lynne W. Jeter, Disconnected: Deceit and Betrayal at WorldCom (Hoboken, " "N.J.: John Wiley & Sons, 2003), 176, 204; for details of the settlement, " "see MCI press release, \"MCI Wins U.S. District Court Approval for SEC " "Settlement\" (7 July 2003), available at <ulink " "url=\"http://free-culture.cc/notes/\">link #37</ulink>. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> #: freeculture.xml:8840 msgid "Bush, George W." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:8831 msgid "" "The bill, modeled after California's tort reform model, was passed in the " "House of Representatives but defeated in a Senate vote in July 2003. For an " "overview, see Tanya Albert, \"Measure Stalls in Senate: `We'll Be Back,' Say " "Tort Reformers,\" amednews.com, 28 July 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #38</ulink>, and \"Senate Turns " "Back Malpractice Caps,\" CBSNews.com, 9 July 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #39</ulink>. President Bush has " "continued to urge tort reform in recent months. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8807 msgid "" "That presumption will increasingly chill creativity, as the examples of " "extreme penalties for vague infringements continue to proliferate. It is " "impossible to get a clear sense of what's allowed and what's not, and at the " "same time, the penalties for crossing the line are astonishingly harsh. The " "four students who were threatened by the RIAA ( Jesse Jordan of chapter 3 " "was just one) were threatened with a $98 billion lawsuit for building search " "engines that permitted songs to be copied. Yet World-Com—which " "defrauded investors of $11 billion, resulting in a loss to investors in " "market capitalization of over $200 billion—received a fine of a mere " "$750 million.<placeholder type=\"footnote\" id=\"0\"/> And under legislation " "being pushed in Congress right now, a doctor who negligently removes the " "wrong leg in an operation would be liable for no more than $250,000 in " "damages for pain and suffering.<placeholder type=\"footnote\" id=\"1\"/> Can " "common sense recognize the absurdity in a world where the maximum fine for " "downloading two songs off the Internet is more than the fine for a doctor's " "negligently butchering a patient? <placeholder type=\"indexterm\" id=\"2\"/>" msgstr "" #. f3. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:8868 msgid "" "See Danit Lidor, \"Artists Just Wanna Be Free,\" Wired, 7 July 2003, " "available at <ulink url=\"http://free-culture.cc/notes/\">link " "#40</ulink>. For an overview of the exhibition, see <ulink " "url=\"http://free-culture.cc/notes/\">link #41</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8848 msgid "" "The consequence of this legal uncertainty, tied to these extremely high " "penalties, is that an extraordinary amount of creativity will either never " "be exercised, or never be exercised in the open. We drive this creative " "process underground by branding the modern-day Walt Disneys \"pirates.\" We " "make it impossible for businesses to rely upon a public domain, because the " "boundaries of the public domain are designed to be unclear. It never pays to " "do anything except pay for the right to create, and hence only those who can " "pay are allowed to create. As was the case in the Soviet Union, though for " "very different reasons, we will begin to see a world of underground " "art—not because the message is necessarily political, or because the " "subject is controversial, but because the very act of creating the art is " "legally fraught. Already, exhibits of \"illegal art\" tour the United " "States.<placeholder type=\"footnote\" id=\"0\"/> In what does their " "\"illegality\" consist? In the act of mixing the culture around us with an " "expression that is critical or reflective." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8879 msgid "" "Part of the reason for this fear of illegality has to do with the changing " "law. I described that change in detail in chapter 10. But an even bigger " "part has to do with the increasing ease with which infractions can be " "tracked. As users of file-sharing systems discovered in 2002, it is a " "trivial matter for copyright owners to get courts to order Internet service " "providers to reveal who has what content. It is as if your cassette tape " "player transmitted a list of the songs that you played in the privacy of " "your own home that anyone could tune into for whatever reason they chose." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8890 msgid "" "Never in our history has a painter had to worry about whether his painting " "infringed on someone else's work; but the modern-day painter, using the " "tools of Photoshop, sharing content on the Web, must worry all the " "time. Images are all around, but the only safe images to use in the act of " "creation are those purchased from Corbis or another image farm. And in " "purchasing, censoring happens. There is a free market in pencils; we needn't " "worry about its effect on creativity. But there is a highly regulated, " "monopolized market in cultural icons; the right to cultivate and transform " "them is not similarly free." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8901 msgid "" "Lawyers rarely see this because lawyers are rarely empirical. As I described " "in chapter 7, in response to the story about documentary filmmaker Jon Else, " "I have been lectured again and again by lawyers who insist Else's use was " "fair use, and hence I am wrong to say that the law regulates such a use." msgstr "" #. PAGE BREAK 196 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8910 msgid "" "But fair use in America simply means the right to hire a lawyer to defend " "your right to create. And as lawyers love to forget, our system for " "defending rights such as fair use is astonishingly bad—in practically " "every context, but especially here. It costs too much, it delivers too " "slowly, and what it delivers often has little connection to the justice " "underlying the claim. The legal system may be tolerable for the very rich. " "For everyone else, it is an embarrassment to a tradition that prides itself " "on the rule of law." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8920 msgid "" "Judges and lawyers can tell themselves that fair use provides adequate " "\"breathing room\" between regulation by the law and the access the law " "should allow. But it is a measure of how out of touch our legal system has " "become that anyone actually believes this. The rules that publishers impose " "upon writers, the rules that film distributors impose upon filmmakers, the " "rules that newspapers impose upon journalists— these are the real laws " "governing creativity. And these rules have little relationship to the " "\"law\" with which judges comfort themselves." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8931 msgid "" "For in a world that threatens $150,000 for a single willful infringement of " "a copyright, and which demands tens of thousands of dollars to even defend " "against a copyright infringement claim, and which would never return to the " "wrongfully accused defendant anything of the costs she suffered to defend " "her right to speak—in that world, the astonishingly broad regulations " "that pass under the name \"copyright\" silence speech and creativity. And in " "that world, it takes a studied blindness for people to continue to believe " "they live in a culture that is free." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8942 msgid "As Jed Horovitz, the businessman behind Video Pipeline, said to me," msgstr "" #. PAGE BREAK 197 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:8946 msgid "" "We're losing [creative] opportunities right and left. Creative people are " "being forced not to express themselves. Thoughts are not being " "expressed. And while a lot of stuff may [still] be created, it still won't " "get distributed. Even if the stuff gets made . . . you're not going to get " "it distributed in the mainstream media unless you've got a little note from " "a lawyer saying, \"This has been cleared.\" You're not even going to get it " "on PBS without that kind of permission. That's the point at which they " "control it." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:8959 msgid "Constraining Innovators" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8961 msgid "" "The story of the last section was a crunchy-lefty story—creativity " "quashed, artists who can't speak, yada yada yada. Maybe that doesn't get you " "going. Maybe you think there's enough weird art out there, and enough " "expression that is critical of what seems to be just about everything. And " "if you think that, you might think there's little in this story to worry " "you." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8969 msgid "" "But there's an aspect of this story that is not lefty in any sense. Indeed, " "it is an aspect that could be written by the most extreme promarket " "ideologue. And if you're one of these sorts (and a special one at that, 188 " "pages into a book like this), then you can see this other aspect by " "substituting \"free market\" every place I've spoken of \"free culture.\" " "The point is the same, even if the interests affecting culture are more " "fundamental." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8978 msgid "" "The charge I've been making about the regulation of culture is the same " "charge free marketers make about regulating markets. Everyone, of course, " "concedes that some regulation of markets is necessary—at a minimum, we " "need rules of property and contract, and courts to enforce both. Likewise, " "in this culture debate, everyone concedes that at least some framework of " "copyright is also required. But both perspectives vehemently insist that " "just because some regulation is good, it doesn't follow that more regulation " "is better. And both perspectives are constantly attuned to the ways in which " "regulation simply enables the powerful industries of today to protect " "themselves against the competitors of tomorrow." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:8990 freeculture.xml:9096 msgid "Barry, Hank" msgstr "" #. PAGE BREAK 198 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:8992 msgid "" "This is the single most dramatic effect of the shift in regulatory strategy " "that I described in chapter 10. The consequence of this massive threat of " "liability tied to the murky boundaries of copyright law is that innovators " "who want to innovate in this space can safely innovate only if they have the " "sign-off from last generation's dominant industries. That lesson has been " "taught through a series of cases that were designed and executed to teach " "venture capitalists a lesson. That lesson—what former Napster CEO Hank " "Barry calls a \"nuclear pall\" that has fallen over the Valley—has " "been learned." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9004 msgid "" "Consider one example to make the point, a story whose beginning I told in " "The Future of Ideas and which has progressed in a way that even I (pessimist " "extraordinaire) would never have predicted." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9009 msgid "" "In 1997, Michael Roberts launched a company called MP3.com. MP3.com was " "keen to remake the music business. Their goal was not just to facilitate new " "ways to get access to content. Their goal was also to facilitate new ways to " "create content. Unlike the major labels, MP3.com offered creators a venue to " "distribute their creativity, without demanding an exclusive engagement from " "the creators." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9017 msgid "" "To make this system work, however, MP3.com needed a reliable way to " "recommend music to its users. The idea behind this alternative was to " "leverage the revealed preferences of music listeners to recommend new " "artists. If you like Lyle Lovett, you're likely to enjoy Bonnie Raitt. And " "so on. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9025 msgid "" "This idea required a simple way to gather data about user preferences. " "MP3.com came up with an extraordinarily clever way to gather this preference " "data. In January 2000, the company launched a service called " "my.mp3.com. Using software provided by MP3.com, a user would sign into an " "account and then insert into her computer a CD. The software would identify " "the CD, and then give the user access to that content. So, for example, if " "you inserted a CD by Jill Sobule, then wherever you were—at work or at " "home—you could get access to that music once you signed into your " "account. The system was therefore a kind of music-lockbox." msgstr "" #. PAGE BREAK 199 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9037 msgid "" "No doubt some could use this system to illegally copy content. But that " "opportunity existed with or without MP3.com. The aim of the my.mp3.com " "service was to give users access to their own content, and as a by-product, " "by seeing the content they already owned, to discover the kind of content " "the users liked." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9046 msgid "" "To make this system function, however, MP3.com needed to copy 50,000 CDs to " "a server. (In principle, it could have been the user who uploaded the music, " "but that would have taken a great deal of time, and would have produced a " "product of questionable quality.) It therefore purchased 50,000 CDs from a " "store, and started the process of making copies of those CDs. Again, it " "would not serve the content from those copies to anyone except those who " "authenticated that they had a copy of the CD they wanted to access. So while " "this was 50,000 copies, it was 50,000 copies directed at giving customers " "something they had already bought." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9061 msgid "" "Nine days after MP3.com launched its service, the five major labels, headed " "by the RIAA, brought a lawsuit against MP3.com. MP3.com settled with four of " "the five. Nine months later, a federal judge found MP3.com to have been " "guilty of willful infringement with respect to the fifth. Applying the law " "as it is, the judge imposed a fine against MP3.com of $118 million. MP3.com " "then settled with the remaining plaintiff, Vivendi Universal, paying over " "$54 million. Vivendi purchased MP3.com just about a year later." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9071 msgid "That part of the story I have told before. Now consider its conclusion." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9074 msgid "" "After Vivendi purchased MP3.com, Vivendi turned around and filed a " "malpractice lawsuit against the lawyers who had advised it that they had a " "good faith claim that the service they wanted to offer would be considered " "legal under copyright law. This lawsuit alleged that it should have been " "obvious that the courts would find this behavior illegal; therefore, this " "lawsuit sought to punish any lawyer who had dared to suggest that the law " "was less restrictive than the labels demanded." msgstr "" #. PAGE BREAK 200 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9084 msgid "" "The clear purpose of this lawsuit (which was settled for an unspecified " "amount shortly after the story was no longer covered in the press) was to " "send an unequivocal message to lawyers advising clients in this space: It is " "not just your clients who might suffer if the content industry directs its " "guns against them. It is also you. So those of you who believe the law " "should be less restrictive should realize that such a view of the law will " "cost you and your firm dearly." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:9095 msgid "Hummer, John" msgstr "" #. f4. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:9104 msgid "" "See Joseph Menn, \"Universal, EMI Sue Napster Investor,\" Los Angeles Times, " "23 April 2003. For a parallel argument about the effects on innovation in " "the distribution of music, see Janelle Brown, \"The Music Revolution Will " "Not Be Digitized,\" Salon.com, 1 June 2001, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #42</ulink>. See also Jon " "Healey, \"Online Music Services Besieged,\" Los Angeles Times, 28 May 2001." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9098 msgid "" "This strategy is not just limited to the lawyers. In April 2003, Universal " "and EMI brought a lawsuit against Hummer Winblad, the venture capital firm " "(VC) that had funded Napster at a certain stage of its development, its " "cofounder ( John Hummer), and general partner (Hank Barry).<placeholder " "type=\"footnote\" id=\"0\"/> The claim here, as well, was that the VC should " "have recognized the right of the content industry to control how the " "industry should develop. They should be held personally liable for funding a " "company whose business turned out to be beyond the law. Here again, the aim " "of the lawsuit is transparent: Any VC now recognizes that if you fund a " "company whose business is not approved of by the dinosaurs, you are at risk " "not just in the marketplace, but in the courtroom as well. Your investment " "buys you not only a company, it also buys you a lawsuit. So extreme has the " "environment become that even car manufacturers are afraid of technologies " "that touch content. In an article in Business 2.0, Rafe Needleman describes " "a discussion with BMW:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><indexterm><primary> #: freeculture.xml:9125 msgid "BMW" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para><indexterm><primary> #: freeculture.xml:9140 msgid "Needleman, Rafe" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> #: freeculture.xml:9136 msgid "" "Rafe Needleman, \"Driving in Cars with MP3s,\" Business 2.0, 16 June 2003, " "available at <ulink url=\"http://free-culture.cc/notes/\">link " "#43</ulink>. I am grateful to Dr. Mohammad Al-Ubaydli for this example. " "<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:9127 msgid "" "I asked why, with all the storage capacity and computer power in the car, " "there was no way to play MP3 files. I was told that BMW engineers in Germany " "had rigged a new vehicle to play MP3s via the car's built-in sound system, " "but that the company's marketing and legal departments weren't comfortable " "with pushing this forward for release stateside. Even today, no new cars are " "sold in the United States with bona fide MP3 players. . . . <placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9145 msgid "" "This is the world of the mafia—filled with \"your money or your life\" " "offers, governed in the end not by courts but by the threats that the law " "empowers copyright holders to exercise. It is a system that will obviously " "and necessarily stifle new innovation. It is hard enough to start a " "company. It is impossibly hard if that company is constantly threatened by " "litigation." msgstr "" #. PAGE BREAK 201 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9155 msgid "" "The point is not that businesses should have a right to start illegal " "enterprises. The point is the definition of \"illegal.\" The law is a mess " "of uncertainty. We have no good way to know how it should apply to new " "technologies. Yet by reversing our tradition of judicial deference, and by " "embracing the astonishingly high penalties that copyright law imposes, that " "uncertainty now yields a reality which is far more conservative than is " "right. If the law imposed the death penalty for parking tickets, we'd not " "only have fewer parking tickets, we'd also have much less driving. The same " "principle applies to innovation. If innovation is constantly checked by this " "uncertain and unlimited liability, we will have much less vibrant innovation " "and much less creativity." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9170 msgid "" "The point is directly parallel to the crunchy-lefty point about fair " "use. Whatever the \"real\" law is, realism about the effect of law in both " "contexts is the same. This wildly punitive system of regulation will " "systematically stifle creativity and innovation. It will protect some " "industries and some creators, but it will harm industry and creativity " "generally. Free market and free culture depend upon vibrant competition. " "Yet the effect of the law today is to stifle just this kind of competition. " "The effect is to produce an overregulated culture, just as the effect of too " "much control in the market is to produce an overregulatedregulated market." msgstr "" #. PAGE BREAK 202 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9182 msgid "" "The building of a permission culture, rather than a free culture, is the " "first important way in which the changes I have described will burden " "innovation. A permission culture means a lawyer's culture—a culture in " "which the ability to create requires a call to your lawyer. Again, I am not " "antilawyer, at least when they're kept in their proper place. I am certainly " "not antilaw. But our profession has lost the sense of its limits. And " "leaders in our profession have lost an appreciation of the high costs that " "our profession imposes upon others. The inefficiency of the law is an " "embarrassment to our tradition. And while I believe our profession should " "therefore do everything it can to make the law more efficient, it should at " "least do everything it can to limit the reach of the law where the law is " "not doing any good. The transaction costs buried within a permission culture " "are enough to bury a wide range of creativity. Someone needs to do a lot of " "justifying to justify that result. The uncertainty of the law is one burden " "on innovation. There is a second burden that operates more directly. This is " "the effort by many in the content industry to use the law to directly " "regulate the technology of the Internet so that it better protects their " "content." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9204 msgid "" "The motivation for this response is obvious. The Internet enables the " "efficient spread of content. That efficiency is a feature of the Internet's " "design. But from the perspective of the content industry, this feature is a " "\"bug.\" The efficient spread of content means that content distributors " "have a harder time controlling the distribution of content. One obvious " "response to this efficiency is thus to make the Internet less efficient. If " "the Internet enables \"piracy,\" then, this response says, we should break " "the kneecaps of the Internet." msgstr "" #. f6. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:9218 msgid "" "\"Copyright and Digital Media in a Post-Napster World,\" GartnerG2 and the " "Berkman Center for Internet and Society at Harvard Law School (2003), " "33–35, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#44</ulink>." msgstr "" #. f7. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:9234 msgid "GartnerG2, 26–27." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9214 msgid "" "The examples of this form of legislation are many. At the urging of the " "content industry, some in Congress have threatened legislation that would " "require computers to determine whether the content they access is protected " "or not, and to disable the spread of protected content.<placeholder " "type=\"footnote\" id=\"0\"/> Congress has already launched proceedings to " "explore a mandatory \"broadcast flag\" that would be required on any device " "capable of transmitting digital video (i.e., a computer), and that would " "disable the copying of any content that is marked with a broadcast " "flag. Other members of Congress have proposed immunizing content providers " "from liability for technology they might deploy that would hunt down " "copyright violators and disable their machines.<placeholder " "type=\"footnote\" id=\"1\"/>" msgstr "" #. PAGE BREAK 203 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9239 msgid "" "In one sense, these solutions seem sensible. If the problem is the code, why " "not regulate the code to remove the problem. But any regulation of technical " "infrastructure will always be tuned to the particular technology of the " "day. It will impose significant burdens and costs on the technology, but " "will likely be eclipsed by advances around exactly those requirements." msgstr "" #. f8. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:9253 msgid "" "See David McGuire, \"Tech Execs Square Off Over Piracy,\" Newsbytes, " "February 2002 (Entertainment)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9250 msgid "" "In March 2002, a broad coalition of technology companies, led by Intel, " "tried to get Congress to see the harm that such legislation would " "impose.<placeholder type=\"footnote\" id=\"0\"/> Their argument was " "obviously not that copyright should not be protected. Instead, they argued, " "any protection should not do more harm than good." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9261 msgid "" "There is one more obvious way in which this war has harmed " "innovation—again, a story that will be quite familiar to the free " "market crowd." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9267 msgid "" "Copyright may be property, but like all property, it is also a form of " "regulation. It is a regulation that benefits some and harms others. When " "done right, it benefits creators and harms leeches. When done wrong, it is " "regulation the powerful use to defeat competitors." msgstr "" #. f9. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:9276 msgid "Jessica Litman, Digital Copyright (Amherst, N.Y.: Prometheus Books, 2001)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9273 msgid "" "As I described in chapter 10, despite this feature of copyright as " "regulation, and subject to important qualifications outlined by Jessica " "Litman in her book Digital Copyright,<placeholder type=\"footnote\" " "id=\"0\"/> overall this history of copyright is not bad. As chapter 10 " "details, when new technologies have come along, Congress has struck a " "balance to assure that the new is protected from the old. Compulsory, or " "statutory, licenses have been one part of that strategy. Free use (as in the " "case of the VCR) has been another." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9286 msgid "" "But that pattern of deference to new technologies has now changed with the " "rise of the Internet. Rather than striking a balance between the claims of a " "new technology and the legitimate rights of content creators, both the " "courts and Congress have imposed legal restrictions that will have the " "effect of smothering the new to benefit the old." msgstr "" #. f10. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:9294 msgid "" "The only circuit court exception is found in Recording Industry Association " "of America (RIAA) v. Diamond Multimedia Systems, 180 F. 3d 1072 (9th " "Cir. 1999). There the court of appeals for the Ninth Circuit reasoned that " "makers of a portable MP3 player were not liable for contributory copyright " "infringement for a device that is unable to record or redistribute music (a " "device whose only copying function is to render portable a music file " "already stored on a user's hard drive). At the district court level, the " "only exception is found in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, " "Ltd., 259 F. Supp. 2d 1029 (C.D. Cal., 2003), where the court found the " "link between the distributor and any given user's conduct too attenuated to " "make the distributor liable for contributory or vicarious infringement " "liability." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:9314 msgid "" "For example, in July 2002, Representative Howard Berman introduced the " "Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize " "copyright holders from liability for damage done to computers when the " "copyright holders use technology to stop copyright infringement. In August " "2002, Representative Billy Tauzin introduced a bill to mandate that " "technologies capable of rebroadcasting digital copies of films broadcast on " "TV (i.e., computers) respect a \"broadcast flag\" that would disable copying " "of that content. And in March of the same year, Senator Fritz Hollings " "introduced the Consumer Broadband and Digital Television Promotion Act, " "which mandated copyright protection technology in all digital media " "devices. See GartnerG2, \"Copyright and Digital Media in a Post-Napster " "World,\" 27 June 2003, 33–34, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #44</ulink>. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9293 msgid "" "The response by the courts has been fairly universal.<placeholder " "type=\"footnote\" id=\"0\"/> It has been mirrored in the responses " "threatened and actually implemented by Congress. I won't catalog all of " "those responses here.<placeholder type=\"footnote\" id=\"1\"/> But there is " "one example that captures the flavor of them all. This is the story of the " "demise of Internet radio." msgstr "" #. PAGE BREAK 204 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9336 msgid "" "As I described in chapter 4, when a radio station plays a song, the " "recording artist doesn't get paid for that \"radio performance\" unless he " "or she is also the composer. So, for example if Marilyn Monroe had recorded " "a version of \"Happy Birthday\"—to memorialize her famous performance " "before President Kennedy at Madison Square Garden— then whenever that " "recording was played on the radio, the current copyright owners of \"Happy " "Birthday\" would get some money, whereas Marilyn Monroe would not." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9346 msgid "" "The reasoning behind this balance struck by Congress makes some sense. The " "justification was that radio was a kind of advertising. The recording artist " "thus benefited because by playing her music, the radio station was making it " "more likely that her records would be purchased. Thus, the recording artist " "got something, even if only indirectly. Probably this reasoning had less to " "do with the result than with the power of radio stations: Their lobbyists " "were quite good at stopping any efforts to get Congress to require " "compensation to the recording artists." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9357 msgid "" "Enter Internet radio. Like regular radio, Internet radio is a technology to " "stream content from a broadcaster to a listener. The broadcast travels " "across the Internet, not across the ether of radio spectrum. Thus, I can " "\"tune in\" to an Internet radio station in Berlin while sitting in San " "Francisco, even though there's no way for me to tune in to a regular radio " "station much beyond the San Francisco metropolitan area." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9366 msgid "" "This feature of the architecture of Internet radio means that there are " "potentially an unlimited number of radio stations that a user could tune in " "to using her computer, whereas under the existing architecture for broadcast " "radio, there is an obvious limit to the number of broadcasters and clear " "broadcast frequencies. Internet radio could therefore be more competitive " "than regular radio; it could provide a wider range of selections. And " "because the potential audience for Internet radio is the whole world, niche " "stations could easily develop and market their content to a relatively large " "number of users worldwide. According to some estimates, more than eighty " "million users worldwide have tuned in to this new form of radio." msgstr "" #. PAGE BREAK 205 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9381 msgid "" "Internet radio is thus to radio what FM was to AM. It is an improvement " "potentially vastly more significant than the FM improvement over AM, since " "not only is the technology better, so, too, is the competition. Indeed, " "there is a direct parallel between the fight to establish FM radio and the " "fight to protect Internet radio. As one author describes Howard Armstrong's " "struggle to enable FM radio," msgstr "" #. f12. #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> #: freeculture.xml:9405 msgid "Lessing, 239." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:9391 msgid "" "An almost unlimited number of FM stations was possible in the shortwaves, " "thus ending the unnatural restrictions imposed on radio in the crowded " "longwaves. If FM were freely developed, the number of stations would be " "limited only by economics and competition rather than by technical " "restrictions. . . . Armstrong likened the situation that had grown up in " "radio to that following the invention of the printing press, when " "governments and ruling interests attempted to control this new instrument of " "mass communications by imposing restrictive licenses on it. This tyranny was " "broken only when it became possible for men freely to acquire printing " "presses and freely to run them. FM in this sense was as great an invention " "as the printing presses, for it gave radio the opportunity to strike off its " "shackles.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. f13. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:9415 msgid "Ibid., 229." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9410 msgid "" "This potential for FM radio was never realized—not because Armstrong " "was wrong about the technology, but because he underestimated the power of " "\"vested interests, habits, customs and legislation\"<placeholder " "type=\"footnote\" id=\"0\"/> to retard the growth of this competing " "technology." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9420 msgid "" "Now the very same claim could be made about Internet radio. For again, there " "is no technical limitation that could restrict the number of Internet radio " "stations. The only restrictions on Internet radio are those imposed by the " "law. Copyright law is one such law. So the first question we should ask is, " "what copyright rules would govern Internet radio?" msgstr "" #. PAGE BREAK 206 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9428 msgid "" "But here the power of the lobbyists is reversed. Internet radio is a new " "industry. The recording artists, on the other hand, have a very powerful " "lobby, the RIAA. Thus when Congress considered the phenomenon of Internet " "radio in 1995, the lobbyists had primed Congress to adopt a different rule " "for Internet radio than the rule that applies to terrestrial radio. While " "terrestrial radio does not have to pay our hypothetical Marilyn Monroe when " "it plays her hypothetical recording of \"Happy Birthday\" on the air, " "Internet radio does. Not only is the law not neutral toward Internet " "radio—the law actually burdens Internet radio more than it burdens " "terrestrial radio." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> #: freeculture.xml:9468 msgid "CARP (Copyright Arbitration Royalty Panel)" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:9451 msgid "" "This example was derived from fees set by the original Copyright Arbitration " "Royalty Panel (CARP) proceedings, and is drawn from an example offered by " "Professor William Fisher. Conference Proceedings, iLaw (Stanford), 3 July " "2003, on file with author. Professors Fisher and Zittrain submitted " "testimony in the CARP proceeding that was ultimately rejected. See Jonathan " "Zittrain, Digital Performance Right in Sound Recordings and Ephemeral " "Recordings, Docket No. 2000-9, CARP DTRA 1 and 2, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #45</ulink>. For an excellent " "analysis making a similar point, see Randal C. Picker, \"Copyright as Entry " "Policy: The Case of Digital Distribution,\" Antitrust Bulletin (Summer/Fall " "2002): 461: \"This was not confusion, these are just old-fashioned entry " "barriers. Analog radio stations are protected from digital entrants, " "reducing entry in radio and diversity. Yes, this is done in the name of " "getting royalties to copyright holders, but, absent the play of powerful " "interests, that could have been done in a media-neutral way.\" <placeholder " "type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9444 msgid "" "This financial burden is not slight. As Harvard law professor William Fisher " "estimates, if an Internet radio station distributed adfree popular music to " "(on average) ten thousand listeners, twenty-four hours a day, the total " "artist fees that radio station would owe would be over $1 million a " "year.<placeholder type=\"footnote\" id=\"0\"/> A regular radio station " "broadcasting the same content would pay no equivalent fee." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9475 msgid "" "The burden is not financial only. Under the original rules that were " "proposed, an Internet radio station (but not a terrestrial radio station) " "would have to collect the following data from every listening transaction:" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9482 msgid "name of the service;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9485 msgid "channel of the program (AM/FM stations use station ID);" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9488 msgid "type of program (archived/looped/live);" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9491 msgid "date of transmission;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9494 msgid "time of transmission;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9497 msgid "time zone of origination of transmission;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9500 msgid "numeric designation of the place of the sound recording within the program;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9503 msgid "duration of transmission (to nearest second);" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9506 msgid "sound recording title;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9509 msgid "ISRC code of the recording;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9512 msgid "" "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;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9515 msgid "featured recording artist;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9518 msgid "retail album title;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9521 msgid "recording label;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9524 msgid "UPC code of the retail album;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9527 msgid "catalog number;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9530 msgid "copyright owner information;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9533 msgid "musical genre of the channel or program (station format);" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9536 msgid "name of the service or entity;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9539 msgid "channel or program;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9542 msgid "date and time that the user logged in (in the user's time zone);" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9545 msgid "date and time that the user logged out (in the user's time zone);" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9548 msgid "time zone where the signal was received (user);" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9551 msgid "Unique User identifier;" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:9554 msgid "the country in which the user received the transmissions." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9559 msgid "" "The Librarian of Congress eventually suspended these reporting requirements, " "pending further study. And he also changed the original rates set by the " "arbitration panel charged with setting rates. But the basic difference " "between Internet radio and terrestrial radio remains: Internet radio has to " "pay a type of copyright fee that terrestrial radio does not." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9567 msgid "" "Why? What justifies this difference? Was there any study of the economic " "consequences from Internet radio that would justify these differences? Was " "the motive to protect artists against piracy?" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9573 msgid "" "In a rare bit of candor, one RIAA expert admitted what seemed obvious to " "everyone at the time. As Alex Alben, vice president for Public Policy at " "Real Networks, told me," msgstr "" #. PAGE BREAK 208 #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:9579 msgid "" "The RIAA, which was representing the record labels, presented some testimony " "about what they thought a willing buyer would pay to a willing seller, and " "it was much higher. It was ten times higher than what radio stations pay to " "perform the same songs for the same period of time. And so the attorneys " "representing the webcasters asked the RIAA, . . . \"How do you come up with " "a rate that's so much higher? Why is it worth more than radio? Because here " "we have hundreds of thousands of webcasters who want to pay, and that should " "establish the market rate, and if you set the rate so high, you're going to " "drive the small webcasters out of business. . . .\"" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:9595 msgid "" "And the RIAA experts said, \"Well, we don't really model this as an industry " "with thousands of webcasters, we think it should be an industry with, you " "know, five or seven big players who can pay a high rate and it's a stable, " "predictable market.\" (Emphasis added.)" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9602 msgid "" "Translation: The aim is to use the law to eliminate competition, so that " "this platform of potentially immense competition, which would cause the " "diversity and range of content available to explode, would not cause pain to " "the dinosaurs of old. There is no one, on either the right or the left, who " "should endorse this use of the law. And yet there is practically no one, on " "either the right or the left, who is doing anything effective to prevent it." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:9612 msgid "Corrupting Citizens" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9614 msgid "" "Overregulation stifles creativity. It smothers innovation. It gives " "dinosaurs a veto over the future. It wastes the extraordinary opportunity " "for a democratic creativity that digital technology enables." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9620 msgid "" "In addition to these important harms, there is one more that was important " "to our forebears, but seems forgotten today. Overregulation corrupts " "citizens and weakens the rule of law." msgstr "" #. f15. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:9629 msgid "" "Mike Graziano and Lee Rainie, \"The Music Downloading Deluge,\" Pew Internet " "and American Life Project (24 April 2001), available at <ulink " "url=\"http://free-culture.cc/notes/\">link #46</ulink>. The Pew Internet " "and American Life Project reported that 37 million Americans had downloaded " "music files from the Internet by early 2001." msgstr "" #. PAGE BREAK 209 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9625 msgid "" "The war that is being waged today is a war of prohibition. As with every war " "of prohibition, it is targeted against the behavior of a very large number " "of citizens. According to The New York Times, 43 million Americans " "downloaded music in May 2002.<placeholder type=\"footnote\" id=\"0\"/> " "According to the RIAA, the behavior of those 43 million Americans is a " "felony. We thus have a set of rules that transform 20 percent of America " "into criminals. As the RIAA launches lawsuits against not only the Napsters " "and Kazaas of the world, but against students building search engines, and " "increasingly against ordinary users downloading content, the technologies " "for sharing will advance to further protect and hide illegal use. It is an " "arms race or a civil war, with the extremes of one side inviting a more " "extreme response by the other." msgstr "" #. f16. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:9663 msgid "" "Alex Pham, \"The Labels Strike Back: N.Y. Girl Settles RIAA Case,\" Los " "Angeles Times, 10 September 2003, Business." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9650 msgid "" "The content industry's tactics exploit the failings of the American legal " "system. When the RIAA brought suit against Jesse Jordan, it knew that in " "Jordan it had found a scapegoat, not a defendant. The threat of having to " "pay either all the money in the world in damages ($15,000,000) or almost all " "the money in the world to defend against paying all the money in the world " "in damages ($250,000 in legal fees) led Jordan to choose to pay all the " "money he had in the world ($12,000) to make the suit go away. The same " "strategy animates the RIAA's suits against individual users. In September " "2003, the RIAA sued 261 individuals—including a twelve-year-old girl " "living in public housing and a seventy-year-old man who had no idea what " "file sharing was.<placeholder type=\"footnote\" id=\"0\"/> As these " "scapegoats discovered, it will always cost more to defend against these " "suits than it would cost to simply settle. (The twelve year old, for " "example, like Jesse Jordan, paid her life savings of $2,000 to settle the " "case.) Our law is an awful system for defending rights. It is an " "embarrassment to our tradition. And the consequence of our law as it is, is " "that those with the power can use the law to quash any rights they oppose." msgstr "" #. f17. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:9685 msgid "" "Jeffrey A. Miron and Jeffrey Zwiebel, \"Alcohol Consumption During " "Prohibition,\" American Economic Review 81, no. 2 (1991): 242." msgstr "" #. f18. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:9693 msgid "" "National Drug Control Policy: Hearing Before the House Government Reform " "Committee, 108th Cong., 1st sess. (5 March 2003) (statement of John " "P. Walters, director of National Drug Control Policy)." msgstr "" #. f19. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:9703 msgid "" "See James Andreoni, Brian Erard, and Jonathon Feinstein, \"Tax Compliance,\" " "Journal of Economic Literature 36 (1998): 818 (survey of compliance " "literature)." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9675 msgid "" "Wars of prohibition are nothing new in America. This one is just something " "more extreme than anything we've seen before. We experimented with alcohol " "prohibition, at a time when the per capita consumption of alcohol was 1.5 " "gallons per capita per year. The war against drinking initially reduced that " "consumption to just 30 percent of its preprohibition levels, but by the end " "of prohibition, consumption was up to 70 percent of the preprohibition " "level. Americans were drinking just about as much, but now, a vast number " "were criminals.<placeholder type=\"footnote\" id=\"0\"/> We have launched a " "war on drugs aimed at reducing the consumption of regulated narcotics that 7 " "percent (or 16 million) Americans now use.<placeholder type=\"footnote\" " "id=\"1\"/> That is a drop from the high (so to speak) in 1979 of 14 percent " "of the population. We regulate automobiles to the point where the vast " "majority of Americans violate the law every day. We run such a complex tax " "system that a majority of cash businesses regularly cheat.<placeholder " "type=\"footnote\" id=\"2\"/> We pride ourselves on our \"free society,\" but " "an endless array of ordinary behavior is regulated within our society. And " "as a result, a huge proportion of Americans regularly violate at least some " "law." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9712 msgid "" "This state of affairs is not without consequence. It is a particularly " "salient issue for teachers like me, whose job it is to teach law students " "about the importance of \"ethics.\" As my colleague Charlie Nesson told a " "class at Stanford, each year law schools admit thousands of students who " "have illegally downloaded music, illegally consumed alcohol and sometimes " "drugs, illegally worked without paying taxes, illegally driven cars. These " "are kids for whom behaving illegally is increasingly the norm. And then we, " "as law professors, are supposed to teach them how to behave " "ethically—how to say no to bribes, or keep client funds separate, or " "honor a demand to disclose a document that will mean that your case is " "over. Generations of Americans—more significantly in some parts of " "America than in others, but still, everywhere in America today—can't " "live their lives both normally and legally, since \"normally\" entails a " "certain degree of illegality." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9729 msgid "" "The response to this general illegality is either to enforce the law more " "severely or to change the law. We, as a society, have to learn how to make " "that choice more rationally. Whether a law makes sense depends, in part, at " "least, upon whether the costs of the law, both intended and collateral, " "outweigh the benefits. If the costs, intended and collateral, do outweigh " "the benefits, then the law ought to be changed. Alternatively, if the costs " "of the existing system are much greater than the costs of an alternative, " "then we have a good reason to consider the alternative." msgstr "" #. PAGE BREAK 211 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9742 msgid "" "My point is not the idiotic one: Just because people violate a law, we " "should therefore repeal it. Obviously, we could reduce murder statistics " "dramatically by legalizing murder on Wednesdays and Fridays. But that " "wouldn't make any sense, since murder is wrong every day of the week. A " "society is right to ban murder always and everywhere." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9749 msgid "" "My point is instead one that democracies understood for generations, but " "that we recently have learned to forget. The rule of law depends upon people " "obeying the law. The more often, and more repeatedly, we as citizens " "experience violating the law, the less we respect the law. Obviously, in " "most cases, the important issue is the law, not respect for the law. I don't " "care whether the rapist respects the law or not; I want to catch and " "incarcerate the rapist. But I do care whether my students respect the " "law. And I do care if the rules of law sow increasing disrespect because of " "the extreme of regulation they impose. Twenty million Americans have come " "of age since the Internet introduced this different idea of \"sharing.\" We " "need to be able to call these twenty million Americans \"citizens,\" not " "\"felons.\"" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9763 msgid "" "When at least forty-three million citizens download content from the " "Internet, and when they use tools to combine that content in ways " "unauthorized by copyright holders, the first question we should be asking is " "not how best to involve the FBI. The first question should be whether this " "particular prohibition is really necessary in order to achieve the proper " "ends that copyright law serves. Is there another way to assure that artists " "get paid without transforming forty-three million Americans into felons? " "Does it make sense if there are other ways to assure that artists get paid " "without transforming America into a nation of felons?" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9775 msgid "This abstract point can be made more clear with a particular example." msgstr "" #. PAGE BREAK 212 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9778 msgid "" "We all own CDs. Many of us still own phonograph records. These pieces of " "plastic encode music that in a certain sense we have bought. The law " "protects our right to buy and sell that plastic: It is not a copyright " "infringement for me to sell all my classical records at a used record store " "and buy jazz records to replace them. That \"use\" of the recordings is " "free." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9789 msgid "" "But as the MP3 craze has demonstrated, there is another use of phonograph " "records that is effectively free. Because these recordings were made without " "copy-protection technologies, I am \"free\" to copy, or \"rip,\" music from " "my records onto a computer hard disk. Indeed, Apple Corporation went so far " "as to suggest that \"freedom\" was a right: In a series of commercials, " "Apple endorsed the \"Rip, Mix, Burn\" capacities of digital technologies." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:9797 msgid "Adromeda" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9799 msgid "" "This \"use\" of my records is certainly valuable. I have begun a large " "process at home of ripping all of my and my wife's CDs, and storing them in " "one archive. Then, using Apple's iTunes, or a wonderful program called " "Andromeda, we can build different play lists of our music: Bach, Baroque, " "Love Songs, Love Songs of Significant Others—the potential is " "endless. And by reducing the costs of mixing play lists, these technologies " "help build a creativity with play lists that is itself independently " "valuable. Compilations of songs are creative and meaningful in their own " "right." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9810 msgid "" "This use is enabled by unprotected media—either CDs or records. But " "unprotected media also enable file sharing. File sharing threatens (or so " "the content industry believes) the ability of creators to earn a fair return " "from their creativity. And thus, many are beginning to experiment with " "technologies to eliminate unprotected media. These technologies, for " "example, would enable CDs that could not be ripped. Or they might enable spy " "programs to identify ripped content on people's machines." msgstr "" #. PAGE BREAK 213 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9820 msgid "" "If these technologies took off, then the building of large archives of your " "own music would become quite difficult. You might hang in hacker circles, " "and get technology to disable the technologies that protect the " "content. Trading in those technologies is illegal, but maybe that doesn't " "bother you much. In any case, for the vast majority of people, these " "protection technologies would effectively destroy the archiving use of " "CDs. The technology, in other words, would force us all back to the world " "where we either listened to music by manipulating pieces of plastic or were " "part of a massively complex \"digital rights management\" system." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9834 msgid "" "If the only way to assure that artists get paid were the elimination of the " "ability to freely move content, then these technologies to interfere with " "the freedom to move content would be justifiable. But what if there were " "another way to assure that artists are paid, without locking down any " "content? What if, in other words, a different system could assure " "compensation to artists while also preserving the freedom to move content " "easily?" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9843 msgid "" "My point just now is not to prove that there is such a system. I offer a " "version of such a system in the last chapter of this book. For now, the only " "point is the relatively uncontroversial one: If a different system achieved " "the same legitimate objectives that the existing copyright system achieved, " "but left consumers and creators much more free, then we'd have a very good " "reason to pursue this alternative—namely, freedom. The choice, in " "other words, would not be between property and piracy; the choice would be " "between different property systems and the freedoms each allowed." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9854 msgid "" "I believe there is a way to assure that artists are paid without turning " "forty-three million Americans into felons. But the salient feature of this " "alternative is that it would lead to a very different market for producing " "and distributing creativity. The dominant few, who today control the vast " "majority of the distribution of content in the world, would no longer " "exercise this extreme of control. Rather, they would go the way of the " "horse-drawn buggy." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9863 msgid "" "Except that this generation's buggy manufacturers have already saddled " "Congress, and are riding the law to protect themselves against this new form " "of competition. For them the choice is between fortythree million Americans " "as criminals and their own survival." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9869 msgid "" "It is understandable why they choose as they do. It is not understandable " "why we as a democracy continue to choose as we do. Jack Valenti is charming; " "but not so charming as to justify giving up a tradition as deep and " "important as our tradition of free culture. There's one more aspect to this " "corruption that is particularly important to civil liberties, and follows " "directly from any war of prohibition. As Electronic Frontier Foundation " "attorney Fred von Lohmann describes, this is the \"collateral damage\" that " "\"arises whenever you turn a very large percentage of the population into " "criminals.\" This is the collateral damage to civil liberties generally. " "<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> #: freeculture.xml:9888 freeculture.xml:9997 msgid "von Lohmann, Fred" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9886 msgid "" "\"If you can treat someone as a putative lawbreaker,\" von Lohmann explains, " "<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:9892 msgid "" "then all of a sudden a lot of basic civil liberty protections evaporate to " "one degree or another. . . . If you're a copyright infringer, how can you " "hope to have any privacy rights? If you're a copyright infringer, how can " "you hope to be secure against seizures of your computer? How can you hope to " "continue to receive Internet access? . . . Our sensibilities change as soon " "as we think, \"Oh, well, but that person's a criminal, a lawbreaker.\" Well, " "what this campaign against file sharing has done is turn a remarkable " "percentage of the American Internet-using population into \"lawbreakers.\"" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9904 msgid "" "And the consequence of this transformation of the American public into " "criminals is that it becomes trivial, as a matter of due process, to " "effectively erase much of the privacy most would presume." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9909 msgid "" "Users of the Internet began to see this generally in 2003 as the RIAA " "launched its campaign to force Internet service providers to turn over the " "names of customers who the RIAA believed were violating copyright " "law. Verizon fought that demand and lost. With a simple request to a judge, " "and without any notice to the customer at all, the identity of an Internet " "user is revealed." msgstr "" #. f20. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:9927 msgid "" "See Frank Ahrens, \"RIAA's Lawsuits Meet Surprised Targets; Single Mother in " "Calif., 12-Year-Old Girl in N.Y. Among Defendants,\" Washington Post, 10 " "September 2003, E1; Chris Cobbs, \"Worried Parents Pull Plug on File " "`Stealing'; With the Music Industry Cracking Down on File Swapping, Parents " "are Yanking Software from Home PCs to Avoid Being Sued,\" Orlando Sentinel " "Tribune, 30 August 2003, C1; Jefferson Graham, \"Recording Industry Sues " "Parents,\" USA Today, 15 September 2003, 4D; John Schwartz, \"She Says She's " "No Music Pirate. No Snoop Fan, Either,\" New York Times, 25 September 2003, " "C1; Margo Varadi, \"Is Brianna a Criminal?\" Toronto Star, 18 September " "2003, P7." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9918 msgid "" "The RIAA then expanded this campaign, by announcing a general strategy to " "sue individual users of the Internet who are alleged to have downloaded " "copyrighted music from file-sharing systems. But as we've seen, the " "potential damages from these suits are astronomical: If a family's computer " "is used to download a single CD's worth of music, the family could be liable " "for $2 million in damages. That didn't stop the RIAA from suing a number of " "these families, just as they had sued Jesse Jordan.<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. f21. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:9945 msgid "" "See \"Revealed: How RIAA Tracks Downloaders: Music Industry Discloses Some " "Methods Used,\" CNN.com, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #47</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9941 msgid "" "Even this understates the espionage that is being waged by the RIAA. A " "report from CNN late last summer described a strategy the RIAA had adopted " "to track Napster users.<placeholder type=\"footnote\" id=\"0\"/> Using a " "sophisticated hashing algorithm, the RIAA took what is in effect a " "fingerprint of every song in the Napster catalog. Any copy of one of those " "MP3s will have the same \"fingerprint.\"" msgstr "" #. f22. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:9966 msgid "" "See Jeff Adler, \"Cambridge: On Campus, Pirates Are Not Penitent,\" Boston " "Globe, 18 May 2003, City Weekly, 1; Frank Ahrens, \"Four Students Sued over " "Music Sites; Industry Group Targets File Sharing at Colleges,\" Washington " "Post, 4 April 2003, E1; Elizabeth Armstrong, \"Students `Rip, Mix, Burn' at " "Their Own Risk,\" Christian Science Monitor, 2 September 2003, 20; Robert " "Becker and Angela Rozas, \"Music Pirate Hunt Turns to Loyola; Two Students " "Names Are Handed Over; Lawsuit Possible,\" Chicago Tribune, 16 July 2003, " "1C; Beth Cox, \"RIAA Trains Antipiracy Guns on Universities,\" Internet " "News, 30 January 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #48</ulink>; Benny Evangelista, " "\"Download Warning 101: Freshman Orientation This Fall to Include Record " "Industry Warnings Against File Sharing,\" San Francisco Chronicle, 11 August " "2003, E11; \"Raid, Letters Are Weapons at Universities,\" USA Today, 26 " "September 2000, 3D." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9954 msgid "" "So imagine the following not-implausible scenario: Imagine a friend gives a " "CD to your daughter—a collection of songs just like the cassettes you " "used to make as a kid. You don't know, and neither does your daughter, where " "these songs came from. But she copies these songs onto her computer. She " "then takes her computer to college and connects it to a college network, and " "if the college network is \"cooperating\" with the RIAA's espionage, and she " "hasn't properly protected her content from the network (do you know how to " "do that yourself ?), then the RIAA will be able to identify your daughter as " "a \"criminal.\" And under the rules that universities are beginning to " "deploy,<placeholder type=\"footnote\" id=\"0\"/> your daughter can lose the " "right to use the university's computer network. She can, in some cases, be " "expelled." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:9985 msgid "" "Now, of course, she'll have the right to defend herself. You can hire a " "lawyer for her (at $300 per hour, if you're lucky), and she can plead that " "she didn't know anything about the source of the songs or that they came " "from Napster. And it may well be that the university believes her. But the " "university might not believe her. It might treat this \"contraband\" as " "presumptive of guilt. And as any number of college students have already " "learned, our presumptions about innocence disappear in the middle of wars of " "prohibition. This war is no different. Says von Lohmann, <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:10001 msgid "" "So when we're talking about numbers like forty to sixty million Americans " "that are essentially copyright infringers, you create a situation where the " "civil liberties of those people are very much in peril in a general " "matter. [I don't] think [there is any] analog where you could randomly " "choose any person off the street and be confident that they were committing " "an unlawful act that could put them on the hook for potential felony " "liability or hundreds of millions of dollars of civil liability. Certainly " "we all speed, but speeding isn't the kind of an act for which we routinely " "forfeit civil liberties. Some people use drugs, and I think that's the " "closest analog, [but] many have noted that the war against drugs has eroded " "all of our civil liberties because it's treated so many Americans as " "criminals. Well, I think it's fair to say that file sharing is an order of " "magnitude larger number of Americans than drug use. . . . If forty to sixty " "million Americans have become lawbreakers, then we're really on a slippery " "slope to lose a lot of civil liberties for all forty to sixty million of " "them." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:10021 msgid "" "When forty to sixty million Americans are considered \"criminals\" under the " "law, and when the law could achieve the same objective— securing " "rights to authors—without these millions being considered " "\"criminals,\" who is the villain? Americans or the law? Which is American, " "a constant war on our own people or a concerted effort through our democracy " "to change our law?" msgstr "" #. type: Content of: <book><chapter><title> #: freeculture.xml:10034 msgid "BALANCES" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:10038 msgid "" "So here's the picture: You're standing at the side of the road. Your car is " "on fire. You are angry and upset because in part you helped start the " "fire. Now you don't know how to put it out. Next to you is a bucket, filled " "with gasoline. Obviously, gasoline won't put the fire out." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:10044 msgid "" "As you ponder the mess, someone else comes along. In a panic, she grabs the " "bucket. Before you have a chance to tell her to stop—or before she " "understands just why she should stop—the bucket is in the air. The " "gasoline is about to hit the blazing car. And the fire that gasoline will " "ignite is about to ignite everything around." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:10052 msgid "" "A war about copyright rages all around—and we're all focusing on the " "wrong thing. No doubt, current technologies threaten existing businesses. " "No doubt they may threaten artists. But technologies change. The industry " "and technologists have plenty of ways to use technology to protect " "themselves against the current threats of the Internet. This is a fire that " "if let alone would burn itself out." msgstr "" #. PAGE BREAK 219 #. type: Content of: <book><chapter><para> #: freeculture.xml:10061 msgid "" "Yet policy makers are not willing to leave this fire to itself. Primed with " "plenty of lobbyists' money, they are keen to intervene to eliminate the " "problem they perceive. But the problem they perceive is not the real threat " "this culture faces. For while we watch this small fire in the corner, there " "is a massive change in the way culture is made that is happening all around." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:10069 msgid "" "Somehow we have to find a way to turn attention to this more important and " "fundamental issue. Somehow we have to find a way to avoid pouring gasoline " "onto this fire." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:10074 msgid "" "We have not found that way yet. Instead, we seem trapped in a simpler, " "binary view. However much many people push to frame this debate more " "broadly, it is the simple, binary view that remains. We rubberneck to look " "at the fire when we should be keeping our eyes on the road." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:10080 msgid "" "This challenge has been my life these last few years. It has also been my " "failure. In the two chapters that follow, I describe one small brace of " "efforts, so far failed, to find a way to refocus this debate. We must " "understand these failures if we're to understand what success will require." msgstr "" #. type: Content of: <book><chapter><sect1><title> #: freeculture.xml:10089 msgid "CHAPTER THIRTEEN: Eldred" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10091 msgid "" "In 1995, a father was frustrated that his daughters didn't seem to like " "Hawthorne. No doubt there was more than one such father, but at least one " "did something about it. Eric Eldred, a retired computer programmer living in " "New Hampshire, decided to put Hawthorne on the Web. An electronic version, " "Eldred thought, with links to pictures and explanatory text, would make this " "nineteenth-century author's work come alive." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10100 msgid "" "It didn't work—at least for his daughters. They didn't find Hawthorne " "any more interesting than before. But Eldred's experiment gave birth to a " "hobby, and his hobby begat a cause: Eldred would build a library of public " "domain works by scanning these works and making them available for free." msgstr "" #. PAGE BREAK 221 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10107 msgid "" "Eldred's library was not simply a copy of certain public domain works, " "though even a copy would have been of great value to people across the world " "who can't get access to printed versions of these works. Instead, Eldred was " "producing derivative works from these public domain works. Just as Disney " "turned Grimm into stories more accessible to the twentieth century, Eldred " "transformed Hawthorne, and many others, into a form more " "accessible—technically accessible—today." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10118 msgid "" "Eldred's freedom to do this with Hawthorne's work grew from the same source " "as Disney's. Hawthorne's Scarlet Letter had passed into the public domain in " "1907. It was free for anyone to take without the permission of the Hawthorne " "estate or anyone else. Some, such as Dover Press and Penguin Classics, take " "works from the public domain and produce printed editions, which they sell " "in bookstores across the country. Others, such as Disney, take these stories " "and turn them into animated cartoons, sometimes successfully (Cinderella), " "sometimes not (The Hunchback of Notre Dame, Treasure Planet). These are all " "commercial publications of public domain works." msgstr "" #. f1. #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:10141 msgid "" "There's a parallel here with pornography that is a bit hard to describe, but " "it's a strong one. One phenomenon that the Internet created was a world of " "noncommercial pornographers—people who were distributing porn but were " "not making money directly or indirectly from that distribution. Such a " "class didn't exist before the Internet came into being because the costs of " "distributing porn were so high. Yet this new class of distributors got " "special attention in the Supreme Court, when the Court struck down the " "Communications Decency Act of 1996. It was partly because of the burden on " "noncommercial speakers that the statute was found to exceed Congress's " "power. The same point could have been made about noncommercial publishers " "after the advent of the Internet. The Eric Eldreds of the world before the " "Internet were extremely few. Yet one would think it at least as important to " "protect the Eldreds of the world as to protect noncommercial pornographers." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10130 msgid "" "The Internet created the possibility of noncommercial publications of public " "domain works. Eldred's is just one example. There are literally thousands of " "others. Hundreds of thousands from across the world have discovered this " "platform of expression and now use it to share works that are, by law, free " "for the taking. This has produced what we might call the \"noncommercial " "publishing industry,\" which before the Internet was limited to people with " "large egos or with political or social causes. But with the Internet, it " "includes a wide range of individuals and groups dedicated to spreading " "culture generally.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10158 msgid "" "As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection " "of poems New Hampshire was slated to pass into the public domain. Eldred " "wanted to post that collection in his free public library. But Congress got " "in the way. As I described in chapter 10, in 1998, for the eleventh time in " "forty years, Congress extended the terms of existing copyrights—this " "time by twenty years. Eldred would not be free to add any works more recent " "than 1923 to his collection until 2019. Indeed, no copyrighted work would " "pass into the public domain until that year (and not even then, if Congress " "extends the term again). By contrast, in the same period, more than 1 " "million patents will pass into the public domain." msgstr "" #. f2. #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:10178 msgid "" "The full text is: \"Sonny [Bono] wanted the term of copyright protection to " "last forever. I am informed by staff that such a change would violate the " "Constitution. I invite all of you to work with me to strengthen our " "copyright laws in all of the ways available to us. As you know, there is " "also Jack Valenti's proposal for a term to last forever less one " "day. Perhaps the Committee may look at that next Congress,\" 144 " "Cong. Rec. H9946, 9951-2 (October 7, 1998)." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10173 msgid "" "This was the Sonny Bono Copyright Term Extension Act (CTEA), enacted in " "memory of the congressman and former musician Sonny Bono, who, his widow, " "Mary Bono, says, believed that \"copyrights should be forever.\"<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10189 msgid "" "Eldred decided to fight this law. He first resolved to fight it through " "civil disobedience. In a series of interviews, Eldred announced that he " "would publish as planned, CTEA notwithstanding. But because of a second law " "passed in 1998, the NET (No Electronic Theft) Act, his act of publishing " "would make Eldred a felon—whether or not anyone complained. This was a " "dangerous strategy for a disabled programmer to undertake." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10198 msgid "" "It was here that I became involved in Eldred's battle. I was a " "constitutional scholar whose first passion was constitutional " "interpretation. And though constitutional law courses never focus upon the " "Progress Clause of the Constitution, it had always struck me as importantly " "different. As you know, the Constitution says," msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:10209 msgid "" "Congress has the power to promote the Progress of Science . . . by securing " "for limited Times to Authors . . . exclusive Right to their " ". . . Writings. . . ." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10215 msgid "" "As I've described, this clause is unique within the power-granting clause of " "Article I, section 8 of our Constitution. Every other clause granting power " "to Congress simply says Congress has the power to do something—for " "example, to regulate \"commerce among the several states\" or \"declare " "War.\" But here, the \"something\" is something quite specific—to " "\"promote . . . Progress\"—through means that are also specific— " "by \"securing\" \"exclusive Rights\" (i.e., copyrights) \"for limited " "Times.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:10234 freeculture.xml:11685 msgid "Jaszi, Peter" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10225 msgid "" "In the past forty years, Congress has gotten into the practice of extending " "existing terms of copyright protection. What puzzled me about this was, if " "Congress has the power to extend existing terms, then the Constitution's " "requirement that terms be \"limited\" will have no practical effect. If " "every time a copyright is about to expire, Congress has the power to extend " "its term, then Congress can achieve what the Constitution plainly " "forbids—perpetual terms \"on the installment plan,\" as Professor " "Peter Jaszi so nicely put it. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10237 msgid "" "As an academic, my first response was to hit the books. I remember sitting " "late at the office, scouring on-line databases for any serious consideration " "of the question. No one had ever challenged Congress's practice of extending " "existing terms. That failure may in part be why Congress seemed so " "untroubled in its habit. That, and the fact that the practice had become so " "lucrative for Congress. Congress knows that copyright owners will be willing " "to pay a great deal of money to see their copyright terms extended. And so " "Congress is quite happy to keep this gravy train going." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10248 msgid "" "For this is the core of the corruption in our present system of " "government. \"Corruption\" not in the sense that representatives are " "bribed. Rather, \"corruption\" in the sense that the system induces the " "beneficiaries of Congress's acts to raise and give money to Congress to " "induce it to act. There's only so much time; there's only so much Congress " "can do. Why not limit its actions to those things it must do—and those " "things that pay? Extending copyright terms pays." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10257 msgid "" "If that's not obvious to you, consider the following: Say you're one of the " "very few lucky copyright owners whose copyright continues to make money one " "hundred years after it was created. The Estate of Robert Frost is a good " "example. Frost died in 1963. His poetry continues to be extraordinarily " "valuable. Thus the Robert Frost estate benefits greatly from any extension " "of copyright, since no publisher would pay the estate any money if the poems " "Frost wrote could be published by anyone for free." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10267 msgid "" "So imagine the Robert Frost estate is earning $100,000 a year from three of " "Frost's poems. And imagine the copyright for those poems is about to " "expire. You sit on the board of the Robert Frost estate. Your financial " "adviser comes to your board meeting with a very grim report:" msgstr "" #. PAGE BREAK 224 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10274 msgid "" "\"Next year,\" the adviser announces, \"our copyrights in works A, B, and C " "will expire. That means that after next year, we will no longer be receiving " "the annual royalty check of $100,000 from the publishers of those works." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10282 msgid "" "\"There's a proposal in Congress, however,\" she continues, \"that could " "change this. A few congressmen are floating a bill to extend the terms of " "copyright by twenty years. That bill would be extraordinarily valuable to " "us. So we should hope this bill passes.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10288 msgid "" "\"Hope?\" a fellow board member says. \"Can't we be doing something about " "it?\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10292 msgid "" "\"Well, obviously, yes,\" the adviser responds. \"We could contribute to the " "campaigns of a number of representatives to try to assure that they support " "the bill.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10297 msgid "" "You hate politics. You hate contributing to campaigns. So you want to know " "whether this disgusting practice is worth it. \"How much would we get if " "this extension were passed?\" you ask the adviser. \"How much is it worth?\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10303 msgid "" "\"Well,\" the adviser says, \"if you're confident that you will continue to " "get at least $100,000 a year from these copyrights, and you use the " "`discount rate' that we use to evaluate estate investments (6 percent), then " "this law would be worth $1,146,000 to the estate.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10309 msgid "" "You're a bit shocked by the number, but you quickly come to the correct " "conclusion:" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10313 msgid "" "\"So you're saying it would be worth it for us to pay more than $1,000,000 " "in campaign contributions if we were confident those contributions would " "assure that the bill was passed?\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10319 msgid "" "\"Absolutely,\" the adviser responds. \"It is worth it to you to contribute " "up to the `present value' of the income you expect from these " "copyrights. Which for us means over $1,000,000.\"" msgstr "" #. PAGE BREAK 225 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10325 msgid "" "You quickly get the point—you as the member of the board and, I trust, " "you the reader. Each time copyrights are about to expire, every beneficiary " "in the position of the Robert Frost estate faces the same choice: If they " "can contribute to get a law passed to extend copyrights, they will benefit " "greatly from that extension. And so each time copyrights are about to " "expire, there is a massive amount of lobbying to get the copyright term " "extended." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10336 msgid "" "Thus a congressional perpetual motion machine: So long as legislation can be " "bought (albeit indirectly), there will be all the incentive in the world to " "buy further extensions of copyright." msgstr "" #. f3. #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:10349 msgid "" "Associated Press, \"Disney Lobbying for Copyright Extension No Mickey Mouse " "Effort; Congress OKs Bill Granting Creators 20 More Years,\" Chicago " "Tribune, 17 October 1998, 22." msgstr "" #. f4. #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:10356 msgid "" "See Nick Brown, \"Fair Use No More?: Copyright in the Information Age,\" " "available at <ulink url=\"http://free-culture.cc/notes/\">link #49</ulink>." msgstr "" #. f5. #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:10363 msgid "" "Alan K. Ota, \"Disney in Washington: The Mouse That Roars,\" Congressional " "Quarterly This Week, 8 August 1990, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #50</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10342 msgid "" "In the lobbying that led to the passage of the Sonny Bono Copyright Term " "Extension Act, this \"theory\" about incentives was proved real. Ten of the " "thirteen original sponsors of the act in the House received the maximum " "contribution from Disney's political action committee; in the Senate, eight " "of the twelve sponsors received contributions.<placeholder type=\"footnote\" " "id=\"0\"/> The RIAA and the MPAA are estimated to have spent over $1.5 " "million lobbying in the 1998 election cycle. They paid out more than " "$200,000 in campaign contributions.<placeholder type=\"footnote\" id=\"1\"/> " "Disney is estimated to have contributed more than $800,000 to reelection " "campaigns in the cycle.<placeholder type=\"footnote\" id=\"2\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10371 msgid "" "Constitutional law is not oblivious to the obvious. Or at least, it need not " "be. So when I was considering Eldred's complaint, this reality about the " "never-ending incentives to increase the copyright term was central to my " "thinking. In my view, a pragmatic court committed to interpreting and " "applying the Constitution of our framers would see that if Congress has the " "power to extend existing terms, then there would be no effective " "constitutional requirement that terms be \"limited.\" If they could extend " "it once, they would extend it again and again and again." msgstr "" #. PAGE BREAK 226 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10384 msgid "" "It was also my judgment that this Supreme Court would not allow Congress to " "extend existing terms. As anyone close to the Supreme Court's work knows, " "this Court has increasingly restricted the power of Congress when it has " "viewed Congress's actions as exceeding the power granted to it by the " "Constitution. Among constitutional scholars, the most famous example of this " "trend was the Supreme Court's decision in 1995 to strike down a law that " "banned the possession of guns near schools." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10397 msgid "" "Since 1937, the Supreme Court had interpreted Congress's granted powers very " "broadly; so, while the Constitution grants Congress the power to regulate " "only \"commerce among the several states\" (aka \"interstate commerce\"), " "the Supreme Court had interpreted that power to include the power to " "regulate any activity that merely affected interstate commerce." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10407 msgid "" "As the economy grew, this standard increasingly meant that there was no " "limit to Congress's power to regulate, since just about every activity, when " "considered on a national scale, affects interstate commerce. A Constitution " "designed to limit Congress's power was instead interpreted to impose no " "limit." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10416 msgid "" "The Supreme Court, under Chief Justice Rehnquist's command, changed that in " "United States v. Lopez. The government had argued that possessing guns near " "schools affected interstate commerce. Guns near schools increase crime, " "crime lowers property values, and so on. In the oral argument, the Chief " "Justice asked the government whether there was any activity that would not " "affect interstate commerce under the reasoning the government advanced. The " "government said there was not; if Congress says an activity affects " "interstate commerce, then that activity affects interstate commerce. The " "Supreme Court, the government said, was not in the position to second-guess " "Congress." msgstr "" #. f6. #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:10432 msgid "United States v. Lopez, 514 U.S. 549, 564 (1995)." msgstr "" #. f7. #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:10438 msgid "United States v. Morrison, 529 U.S. 598 (2000)." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10429 msgid "" "\"We pause to consider the implications of the government's arguments,\" the " "Chief Justice wrote.<placeholder type=\"footnote\" id=\"0\"/> If anything " "Congress says is interstate commerce must therefore be considered interstate " "commerce, then there would be no limit to Congress's power. The decision in " "Lopez was reaffirmed five years later in United States " "v. Morrison.<placeholder type=\"footnote\" id=\"1\"/>" msgstr "" #. f8. #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:10445 msgid "" "If it is a principle about enumerated powers, then the principle carries " "from one enumerated power to another. The animating point in the context of " "the Commerce Clause was that the interpretation offered by the government " "would allow the government unending power to regulate commerce—the " "limitation to interstate commerce notwithstanding. The same point is true in " "the context of the Copyright Clause. Here, too, the government's " "interpretation would allow the government unending power to regulate " "copyrights—the limitation to \"limited times\" notwithstanding." msgstr "" #. PAGE BREAK 227 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10443 msgid "" "If a principle were at work here, then it should apply to the Progress " "Clause as much as the Commerce Clause.<placeholder type=\"footnote\" " "id=\"0\"/> And if it is applied to the Progress Clause, the principle should " "yield the conclusion that Congress can't extend an existing term. If " "Congress could extend an existing term, then there would be no \"stopping " "point\" to Congress's power over terms, though the Constitution expressly " "states that there is such a limit. Thus, the same principle applied to the " "power to grant copyrights should entail that Congress is not allowed to " "extend the term of existing copyrights." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10469 msgid "" "If, that is, the principle announced in Lopez stood for a principle. Many " "believed the decision in Lopez stood for politics—a conservative " "Supreme Court, which believed in states' rights, using its power over " "Congress to advance its own personal political preferences. But I rejected " "that view of the Supreme Court's decision. Indeed, shortly after the " "decision, I wrote an article demonstrating the \"fidelity\" in such an " "interpretation of the Constitution. The idea that the Supreme Court decides " "cases based upon its politics struck me as extraordinarily boring. I was " "not going to devote my life to teaching constitutional law if these nine " "Justices were going to be petty politicians." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10483 msgid "" "Now let's pause for a moment to make sure we understand what the argument in " "Eldred was not about. By insisting on the Constitution's limits to " "copyright, obviously Eldred was not endorsing piracy. Indeed, in an obvious " "sense, he was fighting a kind of piracy—piracy of the public " "domain. When Robert Frost wrote his work and when Walt Disney created Mickey " "Mouse, the maximum copyright term was just fifty-six years. Because of " "interim changes, Frost and Disney had already enjoyed a seventy-five-year " "monopoly for their work. They had gotten the benefit of the bargain that the " "Constitution envisions: In exchange for a monopoly protected for fifty-six " "years, they created new work. But now these entities were using their " "power—expressed through the power of lobbyists' money—to get " "another twenty-year dollop of monopoly. That twenty-year dollop would be " "taken from the public domain. Eric Eldred was fighting a piracy that affects " "us all." msgstr "" #. f9. #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:10506 msgid "" "Brief of the Nashville Songwriters Association, Eldred v. Ashcroft, 537 " "U.S. 186 (2003) (No. 01-618), n.10, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #51</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10501 msgid "" "Some people view the public domain with contempt. In their brief before the " "Supreme Court, the Nashville Songwriters Association wrote that the public " "domain is nothing more than \"legal piracy.\"<placeholder type=\"footnote\" " "id=\"0\"/> But it is not piracy when the law allows it; and in our " "constitutional system, our law requires it. Some may not like the " "Constitution's requirements, but that doesn't make the Constitution a " "pirate's charter." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10516 msgid "" "As we've seen, our constitutional system requires limits on copyright as a " "way to assure that copyright holders do not too heavily influence the " "development and distribution of our culture. Yet, as Eric Eldred discovered, " "we have set up a system that assures that copyright terms will be repeatedly " "extended, and extended, and extended. We have created the perfect storm for " "the public domain. Copyrights have not expired, and will not expire, so long " "as Congress is free to be bought to extend them again." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10528 msgid "" "It is valuable copyrights that are responsible for terms being extended. " "Mickey Mouse and \"Rhapsody in Blue.\" These works are too valuable for " "copyright owners to ignore. But the real harm to our society from copyright " "extensions is not that Mickey Mouse remains Disney's. Forget Mickey " "Mouse. Forget Robert Frost. Forget all the works from the 1920s and 1930s " "that have continuing commercial value. The real harm of term extension comes " "not from these famous works. The real harm is to the works that are not " "famous, not commercially exploited, and no longer available as a result." msgstr "" #. f10. #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:10549 msgid "" "The figure of 2 percent is an extrapolation from the study by the " "Congressional Research Service, in light of the estimated renewal " "ranges. See Brief of Petitioners, Eldred v. Ashcroft, 7, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #52</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10543 msgid "" "If you look at the work created in the first twenty years (1923 to 1942) " "affected by the Sonny Bono Copyright Term Extension Act, 2 percent of that " "work has any continuing commercial value. It was the copyright holders for " "that 2 percent who pushed the CTEA through. But the law and its effect were " "not limited to that 2 percent. The law extended the terms of copyright " "generally.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. PAGE BREAK 229 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10558 msgid "" "Think practically about the consequence of this extension—practically, " "as a businessperson, and not as a lawyer eager for more legal work. In 1930, " "10,047 books were published. In 2000, 174 of those books were still in " "print. Let's say you were Brewster Kahle, and you wanted to make available " "to the world in your iArchive project the remaining 9,873. What would you " "have to do?" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10570 msgid "" "Well, first, you'd have to determine which of the 9,873 books were still " "under copyright. That requires going to a library (these data are not " "on-line) and paging through tomes of books, cross-checking the titles and " "authors of the 9,873 books with the copyright registration and renewal " "records for works published in 1930. That will produce a list of books still " "under copyright." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10578 msgid "" "Then for the books still under copyright, you would need to locate the " "current copyright owners. How would you do that?" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10582 msgid "" "Most people think that there must be a list of these copyright owners " "somewhere. Practical people think this way. How could there be thousands and " "thousands of government monopolies without there being at least a list?" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10589 msgid "" "But there is no list. There may be a name from 1930, and then in 1959, of " "the person who registered the copyright. But just think practically about " "how impossibly difficult it would be to track down thousands of such " "records—especially since the person who registered is not necessarily " "the current owner. And we're just talking about 1930!" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10598 msgid "" "\"But there isn't a list of who owns property generally,\" the apologists " "for the system respond. \"Why should there be a list of copyright owners?\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10604 msgid "" "Well, actually, if you think about it, there are plenty of lists of who owns " "what property. Think about deeds on houses, or titles to cars. And where " "there isn't a list, the code of real space is pretty good at suggesting who " "the owner of a bit of property is. (A swing set in your backyard is probably " "yours.) So formally or informally, we have a pretty good way to know who " "owns what tangible property." msgstr "" #. PAGE BREAK 230 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10613 msgid "" "So: You walk down a street and see a house. You can know who owns the house " "by looking it up in the courthouse registry. If you see a car, there is " "ordinarily a license plate that will link the owner to the car. If you see a " "bunch of children's toys sitting on the front lawn of a house, it's fairly " "easy to determine who owns the toys. And if you happen to see a baseball " "lying in a gutter on the side of the road, look around for a second for some " "kids playing ball. If you don't see any kids, then okay: Here's a bit of " "property whose owner we can't easily determine. It is the exception that " "proves the rule: that we ordinarily know quite well who owns what property." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10628 msgid "" "Compare this story to intangible property. You go into a library. The " "library owns the books. But who owns the copyrights? As I've already " "described, there's no list of copyright owners. There are authors' names, of " "course, but their copyrights could have been assigned, or passed down in an " "estate like Grandma's old jewelry. To know who owns what, you would have to " "hire a private detective. The bottom line: The owner cannot easily be " "located. And in a regime like ours, in which it is a felony to use such " "property without the property owner's permission, the property isn't going " "to be used." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10640 msgid "" "The consequence with respect to old books is that they won't be digitized, " "and hence will simply rot away on shelves. But the consequence for other " "creative works is much more dire." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:10645 msgid "Agee, Michael" msgstr "" #. f11. #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:10658 msgid "" "See David G. Savage, \"High Court Scene of Showdown on Copyright Law,\" Los " "Angeles Times, 6 October 2002; David Streitfeld, \"Classic Movies, Songs, " "Books at Stake; Supreme Court Hears Arguments Today on Striking Down " "Copyright Extension,\" Orlando Sentinel Tribune, 9 October 2002." msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:10664 msgid "Lucky Dog, The" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10647 msgid "" "Consider the story of Michael Agee, chairman of Hal Roach Studios, which " "owns the copyrights for the Laurel and Hardy films. Agee is a direct " "beneficiary of the Bono Act. The Laurel and Hardy films were made between " "1921 and 1951. Only one of these films, The Lucky Dog, is currently out of " "copyright. But for the CTEA, films made after 1923 would have begun entering " "the public domain. Because Agee controls the exclusive rights for these " "popular films, he makes a great deal of money. According to one estimate, " "\"Roach has sold about 60,000 videocassettes and 50,000 DVDs of the duo's " "silent films.\"<placeholder type=\"footnote\" id=\"0\"/> <placeholder " "type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10667 msgid "" "Yet Agee opposed the CTEA. His reasons demonstrate a rare virtue in this " "culture: selflessness. He argued in a brief before the Supreme Court that " "the Sonny Bono Copyright Term Extension Act will, if left standing, destroy " "a whole generation of American film." msgstr "" #. PAGE BREAK 231 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10673 msgid "" "His argument is straightforward. A tiny fraction of this work has any " "continuing commercial value. The rest—to the extent it survives at " "all—sits in vaults gathering dust. It may be that some of this work " "not now commercially valuable will be deemed to be valuable by the owners of " "the vaults. For this to occur, however, the commercial benefit from the work " "must exceed the costs of making the work available for distribution." msgstr "" #. f12. #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:10690 msgid "" "Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the " "Petitoners, Eldred v. Ashcroft, 537 U.S. 186 (2003) (No. 01- 618), 12. See " "also Brief of Amicus Curiae filed on behalf of Petitioners by the Internet " "Archive, Eldred v. Ashcroft, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #53</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10684 msgid "" "We can't know the benefits, but we do know a lot about the costs. For most " "of the history of film, the costs of restoring film were very high; digital " "technology has lowered these costs substantially. While it cost more than " "$10,000 to restore a ninety-minute black-and-white film in 1993, it can now " "cost as little as $100 to digitize one hour of mm film.<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10700 msgid "" "Restoration technology is not the only cost, nor the most important. " "Lawyers, too, are a cost, and increasingly, a very important one. In " "addition to preserving the film, a distributor needs to secure the rights. " "And to secure the rights for a film that is under copyright, you need to " "locate the copyright owner." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10708 msgid "" "Or more accurately, owners. As we've seen, there isn't only a single " "copyright associated with a film; there are many. There isn't a single " "person whom you can contact about those copyrights; there are as many as can " "hold the rights, which turns out to be an extremely large number. Thus the " "costs of clearing the rights to these films is exceptionally high." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10717 msgid "" "\"But can't you just restore the film, distribute it, and then pay the " "copyright owner when she shows up?\" Sure, if you want to commit a " "felony. And even if you're not worried about committing a felony, when she " "does show up, she'll have the right to sue you for all the profits you have " "made. So, if you're successful, you can be fairly confident you'll be " "getting a call from someone's lawyer. And if you're not successful, you " "won't make enough to cover the costs of your own lawyer. Either way, you " "have to talk to a lawyer. And as is too often the case, saying you have to " "talk to a lawyer is the same as saying you won't make any money." msgstr "" #. PAGE BREAK 232 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10728 msgid "" "For some films, the benefit of releasing the film may well exceed these " "costs. But for the vast majority of them, there is no way the benefit would " "outweigh the legal costs. Thus, for the vast majority of old films, Agee " "argued, the film will not be restored and distributed until the copyright " "expires." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10738 msgid "" "But by the time the copyright for these films expires, the film will have " "expired. These films were produced on nitrate-based stock, and nitrate stock " "dissolves over time. They will be gone, and the metal canisters in which " "they are now stored will be filled with nothing more than dust." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10746 msgid "" "Of all the creative work produced by humans anywhere, a tiny fraction has " "continuing commercial value. For that tiny fraction, the copyright is a " "crucially important legal device. For that tiny fraction, the copyright " "creates incentives to produce and distribute the creative work. For that " "tiny fraction, the copyright acts as an \"engine of free expression.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10755 msgid "" "But even for that tiny fraction, the actual time during which the creative " "work has a commercial life is extremely short. As I've indicated, most books " "go out of print within one year. The same is true of music and " "film. Commercial culture is sharklike. It must keep moving. And when a " "creative work falls out of favor with the commercial distributors, the " "commercial life ends." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10765 msgid "" "Yet that doesn't mean the life of the creative work ends. We don't keep " "libraries of books in order to compete with Barnes & Noble, and we don't " "have archives of films because we expect people to choose between spending " "Friday night watching new movies and spending Friday night watching a 1930 " "news documentary. The noncommercial life of culture is important and " "valuable—for entertainment but also, and more importantly, for " "knowledge. To understand who we are, and where we came from, and how we have " "made the mistakes that we have, we need to have access to this history." msgstr "" #. PAGE BREAK 233 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10778 msgid "" "Copyrights in this context do not drive an engine of free expression. In " "this context, there is no need for an exclusive right. Copyrights in this " "context do no good." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10785 msgid "" "Yet, for most of our history, they also did little harm. For most of our " "history, when a work ended its commercial life, there was no " "copyright-related use that would be inhibited by an exclusive right. When a " "book went out of print, you could not buy it from a publisher. But you " "could still buy it from a used book store, and when a used book store sells " "it, in America, at least, there is no need to pay the copyright owner " "anything. Thus, the ordinary use of a book after its commercial life ended " "was a use that was independent of copyright law." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10795 msgid "" "The same was effectively true of film. Because the costs of restoring a " "film—the real economic costs, not the lawyer costs—were so high, " "it was never at all feasible to preserve or restore film. Like the remains " "of a great dinner, when it's over, it's over. Once a film passed out of its " "commercial life, it may have been archived for a bit, but that was the end " "of its life so long as the market didn't have more to offer." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10804 msgid "" "In other words, though copyright has been relatively short for most of our " "history, long copyrights wouldn't have mattered for the works that lost " "their commercial value. Long copyrights for these works would not have " "interfered with anything." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10810 msgid "But this situation has now changed." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10813 msgid "" "One crucially important consequence of the emergence of digital technologies " "is to enable the archive that Brewster Kahle dreams of. Digital " "technologies now make it possible to preserve and give access to all sorts " "of knowledge. Once a book goes out of print, we can now imagine digitizing " "it and making it available to everyone, forever. Once a film goes out of " "distribution, we could digitize it and make it available to everyone, " "forever. Digital technologies give new life to copyrighted material after it " "passes out of its commercial life. It is now possible to preserve and assure " "universal access to this knowledge and culture, whereas before it was not." msgstr "" #. PAGE BREAK 234 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10826 msgid "" "And now copyright law does get in the way. Every step of producing this " "digital archive of our culture infringes on the exclusive right of " "copyright. To digitize a book is to copy it. To do that requires permission " "of the copyright owner. The same with music, film, or any other aspect of " "our culture protected by copyright. The effort to make these things " "available to history, or to researchers, or to those who just want to " "explore, is now inhibited by a set of rules that were written for a " "radically different context." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10836 msgid "" "Here is the core of the harm that comes from extending terms: Now that " "technology enables us to rebuild the library of Alexandria, the law gets in " "the way. And it doesn't get in the way for any useful copyright purpose, for " "the purpose of copyright is to enable the commercial market that spreads " "culture. No, we are talking about culture after it has lived its commercial " "life. In this context, copyright is serving no purpose at all related to the " "spread of knowledge. In this context, copyright is not an engine of free " "expression. Copyright is a brake." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10847 msgid "" "You may well ask, \"But if digital technologies lower the costs for Brewster " "Kahle, then they will lower the costs for Random House, too. So won't " "Random House do as well as Brewster Kahle in spreading culture widely?\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10853 msgid "" "Maybe. Someday. But there is absolutely no evidence to suggest that " "publishers would be as complete as libraries. If Barnes & Noble offered " "to lend books from its stores for a low price, would that eliminate the need " "for libraries? Only if you think that the only role of a library is to serve " "what \"the market\" would demand. But if you think the role of a library is " "bigger than this—if you think its role is to archive culture, whether " "there's a demand for any particular bit of that culture or not—then we " "can't count on the commercial market to do our library work for us." msgstr "" #. f13. #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:10876 msgid "" "Jason Schultz, \"The Myth of the 1976 Copyright `Chaos' Theory,\" 20 " "December 2002, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #54</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10864 msgid "" "I would be the first to agree that it should do as much as it can: We should " "rely upon the market as much as possible to spread and enable culture. My " "message is absolutely not antimarket. But where we see the market is not " "doing the job, then we should allow nonmarket forces the freedom to fill the " "gaps. As one researcher calculated for American culture, 94 percent of the " "films, books, and music produced between and 1946 is not commercially " "available. However much you love the commercial market, if access is a " "value, then 6 percent is a failure to provide that value.<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10883 msgid "" "In January 1999, we filed a lawsuit on Eric Eldred's behalf in federal " "district court in Washington, D.C., asking the court to declare the Sonny " "Bono Copyright Term Extension Act unconstitutional. The two central claims " "that we made were (1) that extending existing terms violated the " "Constitution's \"limited Times\" requirement, and (2) that extending terms " "by another twenty years violated the First Amendment." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10891 msgid "" "The district court dismissed our claims without even hearing an argument. A " "panel of the Court of Appeals for the D.C. Circuit also dismissed our " "claims, though after hearing an extensive argument. But that decision at " "least had a dissent, by one of the most conservative judges on that " "court. That dissent gave our claims life." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10898 msgid "" "Judge David Sentelle said the CTEA violated the requirement that copyrights " "be for \"limited Times\" only. His argument was as elegant as it was simple: " "If Congress can extend existing terms, then there is no \"stopping point\" " "to Congress's power under the Copyright Clause. The power to extend existing " "terms means Congress is not required to grant terms that are \"limited.\" " "Thus, Judge Sentelle argued, the court had to interpret the term \"limited " "Times\" to give it meaning. And the best interpretation, Judge Sentelle " "argued, would be to deny Congress the power to extend existing terms." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10909 msgid "" "We asked the Court of Appeals for the D.C. Circuit as a whole to hear the " "case. Cases are ordinarily heard in panels of three, except for important " "cases or cases that raise issues specific to the circuit as a whole, where " "the court will sit \"en banc\" to hear the case." msgstr "" #. PAGE BREAK 236 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10915 msgid "" "The Court of Appeals rejected our request to hear the case en banc. This " "time, Judge Sentelle was joined by the most liberal member of the " "D.C. Circuit, Judge David Tatel. Both the most conservative and the most " "liberal judges in the D.C. Circuit believed Congress had overstepped its " "bounds." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10924 msgid "" "It was here that most expected Eldred v. Ashcroft would die, for the Supreme " "Court rarely reviews any decision by a court of appeals. (It hears about one " "hundred cases a year, out of more than five thousand appeals.) And it " "practically never reviews a decision that upholds a statute when no other " "court has yet reviewed the statute." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10931 msgid "" "But in February 2002, the Supreme Court surprised the world by granting our " "petition to review the D.C. Circuit opinion. Argument was set for October of " "2002. The summer would be spent writing briefs and preparing for argument." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10937 msgid "" "It is over a year later as I write these words. It is still astonishingly " "hard. If you know anything at all about this story, you know that we lost " "the appeal. And if you know something more than just the minimum, you " "probably think there was no way this case could have been won. After our " "defeat, I received literally thousands of missives by well-wishers and " "supporters, thanking me for my work on behalf of this noble but doomed " "cause. And none from this pile was more significant to me than the e-mail " "from my client, Eric Eldred." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10947 msgid "" "But my client and these friends were wrong. This case could have been " "won. It should have been won. And no matter how hard I try to retell this " "story to myself, I can never escape believing that my own mistake lost it." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:10952 freeculture.xml:10966 msgid "Steward, Geoffrey" msgstr "" #. PAGE BREAK 237 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10954 msgid "" "The mistake was made early, though it became obvious only at the very " "end. Our case had been supported from the very beginning by an extraordinary " "lawyer, Geoffrey Stewart, and by the law firm he had moved to, Jones, Day, " "Reavis and Pogue. Jones Day took a great deal of heat from its " "copyright-protectionist clients for supporting us. They ignored this " "pressure (something that few law firms today would ever do), and throughout " "the case, they gave it everything they could." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:10964 freeculture.xml:11305 freeculture.xml:11320 freeculture.xml:11414 freeculture.xml:11628 freeculture.xml:11659 freeculture.xml:11747 msgid "Ayer, Don" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:10965 msgid "Bromberg, Dan" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10968 msgid "" "There were three key lawyers on the case from Jones Day. Geoff Stewart was " "the first, but then Dan Bromberg and Don Ayer became quite " "involved. Bromberg and Ayer in particular had a common view about how this " "case would be won: We would only win, they repeatedly told me, if we could " "make the issue seem \"important\" to the Supreme Court. It had to seem as if " "dramatic harm were being done to free speech and free culture; otherwise, " "they would never vote against \"the most powerful media companies in the " "world.\"" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10978 msgid "" "I hate this view of the law. Of course I thought the Sonny Bono Act was a " "dramatic harm to free speech and free culture. Of course I still think it " "is. But the idea that the Supreme Court decides the law based on how " "important they believe the issues are is just wrong. It might be \"right\" " "as in \"true,\" I thought, but it is \"wrong\" as in \"it just shouldn't be " "that way.\" As I believed that any faithful interpretation of what the " "framers of our Constitution did would yield the conclusion that the CTEA was " "unconstitutional, and as I believed that any faithful interpretation of what " "the First Amendment means would yield the conclusion that the power to " "extend existing copyright terms is unconstitutional, I was not persuaded " "that we had to sell our case like soap. Just as a law that bans the " "swastika is unconstitutional not because the Court likes Nazis but because " "such a law would violate the Constitution, so too, in my view, would the " "Court decide whether Congress's law was constitutional based on the " "Constitution, not based on whether they liked the values that the framers " "put in the Constitution." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:10999 msgid "" "In any case, I thought, the Court must already see the danger and the harm " "caused by this sort of law. Why else would they grant review? There was no " "reason to hear the case in the Supreme Court if they weren't convinced that " "this regulation was harmful. So in my view, we didn't need to persuade them " "that this law was bad, we needed to show why it was unconstitutional." msgstr "" #. PAGE BREAK 238 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11007 msgid "" "There was one way, however, in which I felt politics would matter and in " "which I thought a response was appropriate. I was convinced that the Court " "would not hear our arguments if it thought these were just the arguments of " "a group of lefty loons. This Supreme Court was not about to launch into a " "new field of judicial review if it seemed that this field of review was " "simply the preference of a small political minority. Although my focus in " "the case was not to demonstrate how bad the Sonny Bono Act was but to " "demonstrate that it was unconstitutional, my hope was to make this argument " "against a background of briefs that covered the full range of political " "views. To show that this claim against the CTEA was grounded in law and not " "politics, then, we tried to gather the widest range of credible " "critics—credible not because they were rich and famous, but because " "they, in the aggregate, demonstrated that this law was unconstitutional " "regardless of one's politics." msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:11038 freeculture.xml:11061 msgid "Eagle Forum" msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:11039 msgid "Schlafly, Phyllis" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11026 msgid "" "The first step happened all by itself. Phyllis Schlafly's organization, " "Eagle Forum, had been an opponent of the CTEA from the very beginning. " "Mrs. Schlafly viewed the CTEA as a sellout by Congress. In November 1998, " "she wrote a stinging editorial attacking the Republican Congress for " "allowing the law to pass. As she wrote, \"Do you sometimes wonder why bills " "that create a financial windfall to narrow special interests slide easily " "through the intricate legislative process, while bills that benefit the " "general public seem to get bogged down?\" The answer, as the editorial " "documented, was the power of money. Schlafly enumerated Disney's " "contributions to the key players on the committees. It was money, not " "justice, that gave Mickey Mouse twenty more years in Disney's control, " "Schlafly argued. <placeholder type=\"indexterm\" id=\"0\"/> <placeholder " "type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11042 msgid "" "In the Court of Appeals, Eagle Forum was eager to file a brief supporting " "our position. Their brief made the argument that became the core claim in " "the Supreme Court: If Congress can extend the term of existing copyrights, " "there is no limit to Congress's power to set terms. That strong " "conservative argument persuaded a strong conservative judge, Judge Sentelle." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11050 msgid "" "In the Supreme Court, the briefs on our side were about as diverse as it " "gets. They included an extraordinary historical brief by the Free Software " "Foundation (home of the GNU project that made GNU/ Linux possible). They " "included a powerful brief about the costs of uncertainty by Intel. There " "were two law professors' briefs, one by copyright scholars and one by First " "Amendment scholars. There was an exhaustive and uncontroverted brief by the " "world's experts in the history of the Progress Clause. And of course, there " "was a new brief by Eagle Forum, repeating and strengthening its arguments. " "<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11064 msgid "" "Those briefs framed a legal argument. Then to support the legal argument, " "there were a number of powerful briefs by libraries and archives, including " "the Internet Archive, the American Association of Law Libraries, and the " "National Writers Union." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11070 msgid "" "But two briefs captured the policy argument best. One made the argument I've " "already described: A brief by Hal Roach Studios argued that unless the law " "was struck, a whole generation of American film would disappear. The other " "made the economic argument absolutely clear." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:11076 msgid "Akerlof, George" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:11077 msgid "Arrow, Kenneth" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:11078 msgid "Buchanan, James" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:11079 msgid "Coase, Ronald" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:11080 msgid "Friedman, Milton" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11082 msgid "" "This economists' brief was signed by seventeen economists, including five " "Nobel Prize winners, including Ronald Coase, James Buchanan, Milton " "Friedman, Kenneth Arrow, and George Akerlof. The economists, as the list of " "Nobel winners demonstrates, spanned the political spectrum. Their " "conclusions were powerful: There was no plausible claim that extending the " "terms of existing copyrights would do anything to increase incentives to " "create. Such extensions were nothing more than \"rent-seeking\"—the " "fancy term economists use to describe special-interest legislation gone " "wild." msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:11105 freeculture.xml:11118 freeculture.xml:11311 freeculture.xml:11664 msgid "Fried, Charles" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11093 msgid "" "The same effort at balance was reflected in the legal team we gathered to " "write our briefs in the case. The Jones Day lawyers had been with us from " "the start. But when the case got to the Supreme Court, we added three " "lawyers to help us frame this argument to this Court: Alan Morrison, a " "lawyer from Public Citizen, a Washington group that had made constitutional " "history with a series of seminal victories in the Supreme Court defending " "individual rights; my colleague and dean, Kathleen Sullivan, who had argued " "many cases in the Court, and who had advised us early on about a First " "Amendment strategy; and finally, former solicitor general Charles Fried. " "<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11108 msgid "" "Fried was a special victory for our side. Every other former solicitor " "general was hired by the other side to defend Congress's power to give media " "companies the special favor of extended copyright terms. Fried was the only " "one who turned down that lucrative assignment to stand up for something he " "believed in. He had been Ronald Reagan's chief lawyer in the Supreme " "Court. He had helped craft the line of cases that limited Congress's power " "in the context of the Commerce Clause. And while he had argued many " "positions in the Supreme Court that I personally disagreed with, his joining " "the cause was a vote of confidence in our argument. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11121 msgid "" "The government, in defending the statute, had its collection of friends, as " "well. Significantly, however, none of these \"friends\" included historians " "or economists. The briefs on the other side of the case were written " "exclusively by major media companies, congressmen, and copyright holders." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11128 msgid "" "The media companies were not surprising. They had the most to gain from the " "law. The congressmen were not surprising either—they were defending " "their power and, indirectly, the gravy train of contributions such power " "induced. And of course it was not surprising that the copyright holders " "would defend the idea that they should continue to have the right to control " "who did what with content they wanted to control." msgstr "" #. f14. #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:11144 msgid "" "Brief of Amici Dr. Seuss Enterprise et al., Eldred v. Ashcroft, 537 U.S. " "(2003) (No. 01-618), 19." msgstr "" #. f15. #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:11152 msgid "" "Dinitia Smith, \"Immortal Words, Immortal Royalties? Even Mickey Mouse Joins " "the Fray,\" New York Times, 28 March 1998, B7." msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:11159 msgid "Gershwin, George" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11137 msgid "" "Dr. Seuss's representatives, for example, argued that it was better for the " "Dr. Seuss estate to control what happened to Dr. Seuss's work— better " "than allowing it to fall into the public domain—because if this " "creativity were in the public domain, then people could use it to \"glorify " "drugs or to create pornography.\"<placeholder type=\"footnote\" id=\"0\"/> " "That was also the motive of the Gershwin estate, which defended its " "\"protection\" of the work of George Gershwin. They refuse, for example, to " "license Porgy and Bess to anyone who refuses to use African Americans in the " "cast.<placeholder type=\"footnote\" id=\"1\"/> That's their view of how this " "part of American culture should be controlled, and they wanted this law to " "help them effect that control. <placeholder type=\"indexterm\" id=\"2\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11162 msgid "" "This argument made clear a theme that is rarely noticed in this debate. " "When Congress decides to extend the term of existing copyrights, Congress is " "making a choice about which speakers it will favor. Famous and beloved " "copyright owners, such as the Gershwin estate and Dr. Seuss, come to " "Congress and say, \"Give us twenty years to control the speech about these " "icons of American culture. We'll do better with them than anyone else.\" " "Congress of course likes to reward the popular and famous by giving them " "what they want. But when Congress gives people an exclusive right to speak " "in a certain way, that's just what the First Amendment is traditionally " "meant to block." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11174 msgid "" "We argued as much in a final brief. Not only would upholding the CTEA mean " "that there was no limit to the power of Congress to extend " "copyrights—extensions that would further concentrate the market; it " "would also mean that there was no limit to Congress's power to play " "favorites, through copyright, with who has the right to speak. Between " "February and October, there was little I did beyond preparing for this " "case. Early on, as I said, I set the strategy." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11183 msgid "" "The Supreme Court was divided into two important camps. One camp we called " "\"the Conservatives.\" The other we called \"the Rest.\" The Conservatives " "included Chief Justice Rehnquist, Justice O'Connor, Justice Scalia, Justice " "Kennedy, and Justice Thomas. These five had been the most consistent in " "limiting Congress's power. They were the five who had supported the " "Lopez/Morrison line of cases that said that an enumerated power had to be " "interpreted to assure that Congress's powers had limits." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:11192 freeculture.xml:11216 freeculture.xml:11557 freeculture.xml:11569 msgid "Breyer, Stephen" msgstr "" #. PAGE BREAK 242 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11194 msgid "" "The Rest were the four Justices who had strongly opposed limits on " "Congress's power. These four—Justice Stevens, Justice Souter, Justice " "Ginsburg, and Justice Breyer—had repeatedly argued that the " "Constitution gives Congress broad discretion to decide how best to implement " "its powers. In case after case, these justices had argued that the Court's " "role should be one of deference. Though the votes of these four justices " "were the votes that I personally had most consistently agreed with, they " "were also the votes that we were least likely to get." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11206 msgid "" "In particular, the least likely was Justice Ginsburg's. In addition to her " "general view about deference to Congress (except where issues of gender are " "involved), she had been particularly deferential in the context of " "intellectual property protections. She and her daughter (an excellent and " "well-known intellectual property scholar) were cut from the same " "intellectual property cloth. We expected she would agree with the writings " "of her daughter: that Congress had the power in this context to do as it " "wished, even if what Congress wished made little sense." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11218 msgid "" "Close behind Justice Ginsburg were two justices whom we also viewed as " "unlikely allies, though possible surprises. Justice Souter strongly favored " "deference to Congress, as did Justice Breyer. But both were also very " "sensitive to free speech concerns. And as we strongly believed, there was a " "very important free speech argument against these retrospective extensions." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11226 msgid "" "The only vote we could be confident about was that of Justice " "Stevens. History will record Justice Stevens as one of the greatest judges " "on this Court. His votes are consistently eclectic, which just means that no " "simple ideology explains where he will stand. But he had consistently argued " "for limits in the context of intellectual property generally. We were fairly " "confident he would recognize limits here." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11234 msgid "" "This analysis of \"the Rest\" showed most clearly where our focus had to be: " "on the Conservatives. To win this case, we had to crack open these five and " "get at least a majority to go our way. Thus, the single overriding argument " "that animated our claim rested on the Conservatives' most important " "jurisprudential innovation—the argument that Judge Sentelle had relied " "upon in the Court of Appeals, that Congress's power must be interpreted so " "that its enumerated powers have limits." msgstr "" #. PAGE BREAK 243 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11244 msgid "" "This then was the core of our strategy—a strategy for which I am " "responsible. We would get the Court to see that just as with the Lopez case, " "under the government's argument here, Congress would always have unlimited " "power to extend existing terms. If anything was plain about Congress's power " "under the Progress Clause, it was that this power was supposed to be " "\"limited.\" Our aim would be to get the Court to reconcile Eldred with " "Lopez: If Congress's power to regulate commerce was limited, then so, too, " "must Congress's power to regulate copyright be limited." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11257 msgid "" "The argument on the government's side came down to this: Congress has done " "it before. It should be allowed to do it again. The government claimed that " "from the very beginning, Congress has been extending the term of existing " "copyrights. So, the government argued, the Court should not now say that " "practice is unconstitutional." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11266 msgid "" "There was some truth to the government's claim, but not much. We certainly " "agreed that Congress had extended existing terms in and in 1909. And of " "course, in 1962, Congress began extending existing terms " "regularly—eleven times in forty years." msgstr "" #. PAGE BREAK 244 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11273 msgid "" "But this \"consistency\" should be kept in perspective. Congress extended " "existing terms once in the first hundred years of the Republic. It then " "extended existing terms once again in the next fifty. Those rare extensions " "are in contrast to the now regular practice of extending existing " "terms. Whatever restraint Congress had had in the past, that restraint was " "now gone. Congress was now in a cycle of extensions; there was no reason to " "expect that cycle would end. This Court had not hesitated to intervene where " "Congress was in a similar cycle of extension. There was no reason it " "couldn't intervene here. Oral argument was scheduled for the first week in " "October. I arrived in D.C. two weeks before the argument. During those two " "weeks, I was repeatedly \"mooted\" by lawyers who had volunteered to help in " "the case. Such \"moots\" are basically practice rounds, where wannabe " "justices fire questions at wannabe winners." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11296 msgid "" "I was convinced that to win, I had to keep the Court focused on a single " "point: that if this extension is permitted, then there is no limit to the " "power to set terms. Going with the government would mean that terms would be " "effectively unlimited; going with us would give Congress a clear line to " "follow: Don't extend existing terms. The moots were an effective practice; I " "found ways to take every question back to this central idea." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11307 msgid "" "One moot was before the lawyers at Jones Day. Don Ayer was the skeptic. He " "had served in the Reagan Justice Department with Solicitor General Charles " "Fried. He had argued many cases before the Supreme Court. And in his review " "of the moot, he let his concern speak: <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11314 msgid "" "\"I'm just afraid that unless they really see the harm, they won't be " "willing to upset this practice that the government says has been a " "consistent practice for two hundred years. You have to make them see the " "harm—passionately get them to see the harm. For if they don't see " "that, then we haven't any chance of winning.\"" msgstr "" #. PAGE BREAK 245 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11322 msgid "" "He may have argued many cases before this Court, I thought, but he didn't " "understand its soul. As a clerk, I had seen the Justices do the right " "thing—not because of politics but because it was right. As a law " "professor, I had spent my life teaching my students that this Court does the " "right thing—not because of politics but because it is right. As I " "listened to Ayer's plea for passion in pressing politics, I understood his " "point, and I rejected it. Our argument was right. That was enough. Let the " "politicians learn to see that it was also good. The night before the " "argument, a line of people began to form in front of the Supreme Court. The " "case had become a focus of the press and of the movement to free " "culture. Hundreds stood in line for the chance to see the " "proceedings. Scores spent the night on the Supreme Court steps so that they " "would be assured a seat." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11339 msgid "" "Not everyone has to wait in line. People who know the Justices can ask for " "seats they control. (I asked Justice Scalia's chambers for seats for my " "parents, for example.) Members of the Supreme Court bar can get a seat in a " "special section reserved for them. And senators and congressmen have a " "special place where they get to sit, too. And finally, of course, the press " "has a gallery, as do clerks working for the Justices on the Court. As we " "entered that morning, there was no place that was not taken. This was an " "argument about intellectual property law, yet the halls were filled. As I " "walked in to take my seat at the front of the Court, I saw my parents " "sitting on the left. As I sat down at the table, I saw Jack Valenti sitting " "in the special section ordinarily reserved for family of the Justices." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11354 msgid "" "When the Chief Justice called me to begin my argument, I began where I " "intended to stay: on the question of the limits on Congress's power. This " "was a case about enumerated powers, I said, and whether those enumerated " "powers had any limit." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11360 msgid "" "Justice O'Connor stopped me within one minute of my opening. The history " "was bothering her." msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:11365 msgid "" "justice o'connor: Congress has extended the term so often through the years, " "and if you are right, don't we run the risk of upsetting previous extensions " "of time? I mean, this seems to be a practice that began with the very first " "act." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11372 msgid "" "She was quite willing to concede \"that this flies directly in the face of " "what the framers had in mind.\" But my response again and again was to " "emphasize limits on Congress's power." msgstr "" #. PAGE BREAK 246 #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:11378 msgid "" "mr. lessig: Well, if it flies in the face of what the framers had in mind, " "then the question is, is there a way of interpreting their words that gives " "effect to what they had in mind, and the answer is yes." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11386 msgid "" "There were two points in this argument when I should have seen where the " "Court was going. The first was a question by Justice Kennedy, who observed," msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:11392 msgid "" "justice kennedy: Well, I suppose implicit in the argument that the '76 act, " "too, should have been declared void, and that we might leave it alone " "because of the disruption, is that for all these years the act has impeded " "progress in science and the useful arts. I just don't see any empirical " "evidence for that." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11400 msgid "" "Here follows my clear mistake. Like a professor correcting a student, I " "answered," msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:11406 msgid "" "mr. lessig: Justice, we are not making an empirical claim at all. Nothing " "in our Copyright Clause claim hangs upon the empirical assertion about " "impeding progress. Our only argument is this is a structural limit necessary " "to assure that what would be an effectively perpetual term not be permitted " "under the copyright laws." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11416 msgid "" "That was a correct answer, but it wasn't the right answer. The right answer " "was instead that there was an obvious and profound harm. Any number of " "briefs had been written about it. He wanted to hear it. And here was the " "place Don Ayer's advice should have mattered. This was a softball; my answer " "was a swing and a miss." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11423 msgid "" "The second came from the Chief, for whom the whole case had been " "crafted. For the Chief Justice had crafted the Lopez ruling, and we hoped " "that he would see this case as its second cousin." msgstr "" #. PAGE BREAK 247 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11428 msgid "" "It was clear a second into his question that he wasn't at all sympathetic. " "To him, we were a bunch of anarchists. As he asked:" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:11436 msgid "" "chief justice: Well, but you want more than that. You want the right to copy " "verbatim other people's books, don't you?" msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:11440 msgid "" "mr. lessig: We want the right to copy verbatim works that should be in the " "public domain and would be in the public domain but for a statute that " "cannot be justified under ordinary First Amendment analysis or under a " "proper reading of the limits built into the Copyright Clause." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11449 msgid "" "Things went better for us when the government gave its argument; for now the " "Court picked up on the core of our claim. As Justice Scalia asked Solicitor " "General Olson," msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:11455 msgid "" "justice scalia: You say that the functional equivalent of an unlimited time " "would be a violation [of the Constitution], but that's precisely the " "argument that's being made by petitioners here, that a limited time which is " "extendable is the functional equivalent of an unlimited time." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11463 msgid "" "When Olson was finished, it was my turn to give a closing rebuttal. Olson's " "flailing had revived my anger. But my anger still was directed to the " "academic, not the practical. The government was arguing as if this were the " "first case ever to consider limits on Congress's Copyright and Patent Clause " "power. Ever the professor and not the advocate, I closed by pointing out the " "long history of the Court imposing limits on Congress's power in the name of " "the Copyright and Patent Clause— indeed, the very first case striking " "a law of Congress as exceeding a specific enumerated power was based upon " "the Copyright and Patent Clause. All true. But it wasn't going to move the " "Court to my side." msgstr "" #. PAGE BREAK 248 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11476 msgid "" "As I left the court that day, I knew there were a hundred points I wished I " "could remake. There were a hundred questions I wished I had answered " "differently. But one way of thinking about this case left me optimistic." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11484 msgid "" "The government had been asked over and over again, what is the limit? Over " "and over again, it had answered there is no limit. This was precisely the " "answer I wanted the Court to hear. For I could not imagine how the Court " "could understand that the government believed Congress's power was unlimited " "under the terms of the Copyright Clause, and sustain the government's " "argument. The solicitor general had made my argument for me. No matter how " "often I tried, I could not understand how the Court could find that " "Congress's power under the Commerce Clause was limited, but under the " "Copyright Clause, unlimited. In those rare moments when I let myself believe " "that we may have prevailed, it was because I felt this Court—in " "particular, the Conservatives—would feel itself constrained by the " "rule of law that it had established elsewhere." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11499 msgid "" "The morning of January 15, 2003, I was five minutes late to the office and " "missed the 7:00 A.M. call from the Supreme Court clerk. Listening to the " "message, I could tell in an instant that she had bad news to report.The " "Supreme Court had affirmed the decision of the Court of Appeals. Seven " "justices had voted in the majority. There were two dissents." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11506 msgid "" "A few seconds later, the opinions arrived by e-mail. I took the phone off " "the hook, posted an announcement to our blog, and sat down to see where I " "had been wrong in my reasoning." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11511 msgid "" "My reasoning. Here was a case that pitted all the money in the world against " "reasoning. And here was the last naïve law professor, scouring the pages, " "looking for reasoning." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11516 msgid "" "I first scoured the opinion, looking for how the Court would distinguish the " "principle in this case from the principle in Lopez. The argument was nowhere " "to be found. The case was not even cited. The argument that was the core " "argument of our case did not even appear in the Court's opinion." msgstr "" #. PAGE BREAK 249 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11525 msgid "" "Justice Ginsburg simply ignored the enumerated powers argument. Consistent " "with her view that Congress's power was not limited generally, she had found " "Congress's power not limited here." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11530 msgid "" "Her opinion was perfectly reasonable—for her, and for Justice " "Souter. Neither believes in Lopez. It would be too much to expect them to " "write an opinion that recognized, much less explained, the doctrine they had " "worked so hard to defeat." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11536 msgid "" "But as I realized what had happened, I couldn't quite believe what I was " "reading. I had said there was no way this Court could reconcile limited " "powers with the Commerce Clause and unlimited powers with the Progress " "Clause. It had never even occurred to me that they could reconcile the two " "simply by not addressing the argument. There was no inconsistency because " "they would not talk about the two together. There was therefore no " "principle that followed from the Lopez case: In that context, Congress's " "power would be limited, but in this context it would not." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11547 msgid "" "Yet by what right did they get to choose which of the framers' values they " "would respect? By what right did they—the silent five—get to " "select the part of the Constitution they would enforce based on the values " "they thought important? We were right back to the argument that I said I " "hated at the start: I had failed to convince them that the issue here was " "important, and I had failed to recognize that however much I might hate a " "system in which the Court gets to pick the constitutional values that it " "will respect, that is the system we have." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11559 msgid "" "Justices Breyer and Stevens wrote very strong dissents. Stevens's opinion " "was crafted internal to the law: He argued that the tradition of " "intellectual property law should not support this unjustified extension of " "terms. He based his argument on a parallel analysis that had governed in the " "context of patents (so had we). But the rest of the Court discounted the " "parallel—without explaining how the very same words in the Progress " "Clause could come to mean totally different things depending upon whether " "the words were about patents or copyrights. The Court let Justice Stevens's " "charge go unanswered." msgstr "" #. PAGE BREAK 250 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11572 msgid "" "Justice Breyer's opinion, perhaps the best opinion he has ever written, was " "external to the Constitution. He argued that the term of copyrights has " "become so long as to be effectively unlimited. We had said that under the " "current term, a copyright gave an author 99.8 percent of the value of a " "perpetual term. Breyer said we were wrong, that the actual number was " "99.9997 percent of a perpetual term. Either way, the point was clear: If the " "Constitution said a term had to be \"limited,\" and the existing term was so " "long as to be effectively unlimited, then it was unconstitutional." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11583 msgid "" "These two justices understood all the arguments we had made. But because " "neither believed in the Lopez case, neither was willing to push it as a " "reason to reject this extension. The case was decided without anyone having " "addressed the argument that we had carried from Judge Sentelle. It was " "Hamlet without the Prince." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11590 msgid "" "Defeat brings depression. They say it is a sign of health when depression " "gives way to anger. My anger came quickly, but it didn't cure the " "depression. This anger was of two sorts." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11595 msgid "" "It was first anger with the five \"Conservatives.\" It would have been one " "thing for them to have explained why the principle of Lopez didn't apply in " "this case. That wouldn't have been a very convincing argument, I don't " "believe, having read it made by others, and having tried to make it " "myself. But it at least would have been an act of integrity. These justices " "in particular have repeatedly said that the proper mode of interpreting the " "Constitution is \"originalism\"—to first understand the framers' text, " "interpreted in their context, in light of the structure of the " "Constitution. That method had produced Lopez and many other \"originalist\" " "rulings. Where was their \"originalism\" now?" msgstr "" #. PAGE BREAK 251 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11608 msgid "" "Here, they had joined an opinion that never once tried to explain what the " "framers had meant by crafting the Progress Clause as they did; they joined " "an opinion that never once tried to explain how the structure of that clause " "would affect the interpretation of Congress's power. And they joined an " "opinion that didn't even try to explain why this grant of power could be " "unlimited, whereas the Commerce Clause would be limited. In short, they had " "joined an opinion that did not apply to, and was inconsistent with, their " "own method for interpreting the Constitution. This opinion may well have " "yielded a result that they liked. It did not produce a reason that was " "consistent with their own principles." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11623 msgid "" "My anger with the Conservatives quickly yielded to anger with myself. For I " "had let a view of the law that I liked interfere with a view of the law as " "it is." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11630 msgid "" "Most lawyers, and most law professors, have little patience for idealism " "about courts in general and this Supreme Court in particular. Most have a " "much more pragmatic view. When Don Ayer said that this case would be won " "based on whether I could convince the Justices that the framers' values were " "important, I fought the idea, because I didn't want to believe that that is " "how this Court decides. I insisted on arguing this case as if it were a " "simple application of a set of principles. I had an argument that followed " "in logic. I didn't need to waste my time showing it should also follow in " "popularity." msgstr "" #. PAGE BREAK 252 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11641 msgid "" "As I read back over the transcript from that argument in October, I can see " "a hundred places where the answers could have taken the conversation in " "different directions, where the truth about the harm that this unchecked " "power will cause could have been made clear to this Court. Justice Kennedy " "in good faith wanted to be shown. I, idiotically, corrected his " "question. Justice Souter in good faith wanted to be shown the First " "Amendment harms. I, like a math teacher, reframed the question to make the " "logical point. I had shown them how they could strike this law of Congress " "if they wanted to. There were a hundred places where I could have helped " "them want to, yet my stubbornness, my refusal to give in, stopped me. I have " "stood before hundreds of audiences trying to persuade; I have used passion " "in that effort to persuade; but I refused to stand before this audience and " "try to persuade with the passion I had used elsewhere. It was not the basis " "on which a court should decide the issue." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11661 msgid "" "Would it have been different if I had argued it differently? Would it have " "been different if Don Ayer had argued it? Or Charles Fried? Or Kathleen " "Sullivan? <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11667 msgid "" "My friends huddled around me to insist it would not. The Court was not " "ready, my friends insisted. This was a loss that was destined. It would take " "a great deal more to show our society why our framers were right. And when " "we do that, we will be able to show that Court." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11673 msgid "" "Maybe, but I doubt it. These Justices have no financial interest in doing " "anything except the right thing. They are not lobbied. They have little " "reason to resist doing right. I can't help but think that if I had stepped " "down from this pretty picture of dispassionate justice, I could have " "persuaded." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11680 msgid "" "And even if I couldn't, then that doesn't excuse what happened in " "January. For at the start of this case, one of America's leading " "intellectual property professors stated publicly that my bringing this case " "was a mistake. \"The Court is not ready,\" Peter Jaszi said; this issue " "should not be raised until it is. <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. PAGE BREAK 253 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11688 msgid "" "After the argument and after the decision, Peter said to me, and publicly, " "that he was wrong. But if indeed that Court could not have been persuaded, " "then that is all the evidence that's needed to know that here again Peter " "was right. Either I was not ready to argue this case in a way that would do " "some good or they were not ready to hear this case in a way that would do " "some good. Either way, the decision to bring this case—a decision I " "had made four years before—was wrong. While the reaction to the Sonny " "Bono Act itself was almost unanimously negative, the reaction to the Court's " "decision was mixed. No one, at least in the press, tried to say that " "extending the term of copyright was a good idea. We had won that battle over " "ideas. Where the decision was praised, it was praised by papers that had " "been skeptical of the Court's activism in other cases. Deference was a good " "thing, even if it left standing a silly law. But where the decision was " "attacked, it was attacked because it left standing a silly and harmful " "law. The New York Times wrote in its editorial," msgstr "" #. type: Content of: <book><chapter><sect1><blockquote><para> #: freeculture.xml:11709 msgid "" "In effect, the Supreme Court's decision makes it likely that we are seeing " "the beginning of the end of public domain and the birth of copyright " "perpetuity. The public domain has been a grand experiment, one that should " "not be allowed to die. The ability to draw freely on the entire creative " "output of humanity is one of the reasons we live in a time of such fruitful " "creative ferment." msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:11723 msgid "Bolling, Ruben" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11718 msgid "" "The best responses were in the cartoons. There was a gaggle of hilarious " "images—of Mickey in jail and the like. The best, from my view of the " "case, was Ruben Bolling's, reproduced on the next page. The \"powerful and " "wealthy\" line is a bit unfair. But the punch in the face felt exactly like " "that. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11726 msgid "" "The image that will always stick in my head is that evoked by the quote from " "The New York Times. That \"grand experiment\" we call the \"public domain\" " "is over? When I can make light of it, I think, \"Honey, I shrunk the " "Constitution.\" But I can rarely make light of it. We had in our " "Constitution a commitment to free culture. In the case that I fathered, the " "Supreme Court effectively renounced that commitment. A better lawyer would " "have made them see differently." msgstr "" #. type: Content of: <book><chapter><sect1><title> #: freeculture.xml:11737 msgid "CHAPTER FOURTEEN: Eldred II" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11739 msgid "" "The day Eldred was decided, fate would have it that I was to travel to " "Washington, D.C. (The day the rehearing petition in Eldred was " "denied—meaning the case was really finally over—fate would have " "it that I was giving a speech to technologists at Disney World.) This was a " "particularly long flight to my least favorite city. The drive into the city " "from Dulles was delayed because of traffic, so I opened up my computer and " "wrote an op-ed piece." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11749 msgid "" "It was an act of contrition. During the whole of the flight from San " "Francisco to Washington, I had heard over and over again in my head the same " "advice from Don Ayer: You need to make them see why it is important. And " "alternating with that command was the question of Justice Kennedy: \"For all " "these years the act has impeded progress in science and the useful arts. I " "just don't see any empirical evidence for that.\" And so, having failed in " "the argument of constitutional principle, finally, I turned to an argument " "of politics." msgstr "" #. PAGE BREAK 256 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11759 msgid "" "The New York Times published the piece. In it, I proposed a simple fix: " "Fifty years after a work has been published, the copyright owner would be " "required to register the work and pay a small fee. If he paid the fee, he " "got the benefit of the full term of copyright. If he did not, the work " "passed into the public domain." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11767 msgid "" "We called this the Eldred Act, but that was just to give it a name. Eric " "Eldred was kind enough to let his name be used once again, but as he said " "early on, it won't get passed unless it has another name." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11772 msgid "" "Or another two names. For depending upon your perspective, this is either " "the \"Public Domain Enhancement Act\" or the \"Copyright Term Deregulation " "Act.\" Either way, the essence of the idea is clear and obvious: Remove " "copyright where it is doing nothing except blocking access and the spread of " "knowledge. Leave it for as long as Congress allows for those works where its " "worth is at least $1. But for everything else, let the content go." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:11780 freeculture.xml:11979 msgid "Forbes, Steve" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11782 msgid "" "The reaction to this idea was amazingly strong. Steve Forbes endorsed it in " "an editorial. I received an avalanche of e-mail and letters expressing " "support. When you focus the issue on lost creativity, people can see the " "copyright system makes no sense. As a good Republican might say, here " "government regulation is simply getting in the way of innovation and " "creativity. And as a good Democrat might say, here the government is " "blocking access and the spread of knowledge for no good reason. Indeed, " "there is no real difference between Democrats and Republicans on this " "issue. Anyone can recognize the stupid harm of the present system." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11794 msgid "" "Indeed, many recognized the obvious benefit of the registration " "requirement. For one of the hardest things about the current system for " "people who want to license content is that there is no obvious place to look " "for the current copyright owners. Since registration is not required, since " "marking content is not required, since no formality at all is required, it " "is often impossibly hard to locate copyright owners to ask permission to use " "or license their work. This system would lower these costs, by establishing " "at least one registry where copyright owners could be identified." msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:11804 msgid "Berlin Act (1908)" msgstr "" #. type: Content of: <book><chapter><sect1><indexterm><primary> #: freeculture.xml:11805 freeculture.xml:11844 msgid "Berne Convention (1908)" msgstr "" #. f1. #. type: Content of: <book><chapter><sect1><para><footnote><para> #: freeculture.xml:11812 msgid "" "Until the 1908 Berlin Act of the Berne Convention, national copyright " "legislation sometimes made protection depend upon compliance with " "formalities such as registration, deposit, and affixation of notice of the " "author's claim of copyright. However, starting with the 1908 act, every text " "of the Convention has provided that \"the enjoyment and the exercise\" of " "rights guaranteed by the Convention \"shall not be subject to any " "formality.\" The prohibition against formalities is presently embodied in " "Article 5(2) of the Paris Text of the Berne Convention. Many countries " "continue to impose some form of deposit or registration requirement, albeit " "not as a condition of copyright. French law, for example, requires the " "deposit of copies of works in national repositories, principally the " "National Museum. Copies of books published in the United Kingdom must be " "deposited in the British Library. The German Copyright Act provides for a " "Registrar of Authors where the author's true name can be filed in the case " "of anonymous or pseudonymous works. Paul Goldstein, International " "Intellectual Property Law, Cases and Materials (New York: Foundation Press, " "2001), 153–54." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11808 msgid "" "As I described in chapter 10, formalities in copyright law were removed in " "1976, when Congress followed the Europeans by abandoning any formal " "requirement before a copyright is granted.<placeholder type=\"footnote\" " "id=\"0\"/> The Europeans are said to view copyright as a \"natural right.\" " "Natural rights don't need forms to exist. Traditions, like the " "Anglo-American tradition that required copyright owners to follow form if " "their rights were to be protected, did not, the Europeans thought, properly " "respect the dignity of the author. My right as a creator turns on my " "creativity, not upon the special favor of the government." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11838 msgid "" "That's great rhetoric. It sounds wonderfully romantic. But it is absurd " "copyright policy. It is absurd especially for authors, because a world " "without formalities harms the creator. The ability to spread \"Walt Disney " "creativity\" is destroyed when there is no simple way to know what's " "protected and what's not." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11846 msgid "" "The fight against formalities achieved its first real victory in Berlin in " "1908. International copyright lawyers amended the Berne Convention in 1908, " "to require copyright terms of life plus fifty years, as well as the " "abolition of copyright formalities. The formalities were hated because the " "stories of inadvertent loss were increasingly common. It was as if a Charles " "Dickens character ran all copyright offices, and the failure to dot an i or " "cross a t resulted in the loss of widows' only income." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11856 msgid "" "These complaints were real and sensible. And the strictness of the " "formalities, especially in the United States, was absurd. The law should " "always have ways of forgiving innocent mistakes. There is no reason " "copyright law couldn't, as well. Rather than abandoning formalities totally, " "the response in Berlin should have been to embrace a more equitable system " "of registration." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11864 msgid "" "Even that would have been resisted, however, because registration in the " "nineteenth and twentieth centuries was still expensive. It was also a " "hassle. The abolishment of formalities promised not only to save the " "starving widows, but also to lighten an unnecessary regulatory burden " "imposed upon creators." msgstr "" #. PAGE BREAK 258 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11872 msgid "" "In addition to the practical complaint of authors in 1908, there was a moral " "claim as well. There was no reason that creative property should be a " "second-class form of property. If a carpenter builds a table, his rights " "over the table don't depend upon filing a form with the government. He has " "a property right over the table \"naturally,\" and he can assert that right " "against anyone who would steal the table, whether or not he has informed the " "government of his ownership of the table." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11884 msgid "" "This argument is correct, but its implications are misleading. For the " "argument in favor of formalities does not depend upon creative property " "being second-class property. The argument in favor of formalities turns upon " "the special problems that creative property presents. The law of " "formalities responds to the special physics of creative property, to assure " "that it can be efficiently and fairly spread." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11893 msgid "" "No one thinks, for example, that land is second-class property just because " "you have to register a deed with a court if your sale of land is to be " "effective. And few would think a car is second-class property just because " "you must register the car with the state and tag it with a license. In both " "of those cases, everyone sees that there is an important reason to secure " "registration—both because it makes the markets more efficient and " "because it better secures the rights of the owner. Without a registration " "system for land, landowners would perpetually have to guard their " "property. With registration, they can simply point the police to a " "deed. Without a registration system for cars, auto theft would be much " "easier. With a registration system, the thief has a high burden to sell a " "stolen car. A slight burden is placed on the property owner, but those " "burdens produce a much better system of protection for property generally." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11909 msgid "" "It is similarly special physics that makes formalities important in " "copyright law. Unlike a carpenter's table, there's nothing in nature that " "makes it relatively obvious who might own a particular bit of creative " "property. A recording of Lyle Lovett's latest album can exist in a billion " "places without anything necessarily linking it back to a particular " "owner. And like a car, there's no way to buy and sell creative property with " "confidence unless there is some simple way to authenticate who is the author " "and what rights he has. Simple transactions are destroyed in a world without " "formalities. Complex, expensive, lawyer transactions take their place. " "<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11924 msgid "" "This was the understanding of the problem with the Sonny Bono Act that we " "tried to demonstrate to the Court. This was the part it didn't \"get.\" " "Because we live in a system without formalities, there is no way easily to " "build upon or use culture from our past. If copyright terms were, as Justice " "Story said they would be, \"short,\" then this wouldn't matter much. For " "fourteen years, under the framers' system, a work would be presumptively " "controlled. After fourteen years, it would be presumptively uncontrolled." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11934 msgid "" "But now that copyrights can be just about a century long, the inability to " "know what is protected and what is not protected becomes a huge and obvious " "burden on the creative process. If the only way a library can offer an " "Internet exhibit about the New Deal is to hire a lawyer to clear the rights " "to every image and sound, then the copyright system is burdening creativity " "in a way that has never been seen before because there are no formalities." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11943 msgid "" "The Eldred Act was designed to respond to exactly this problem. If it is " "worth $1 to you, then register your work and you can get the longer " "term. Others will know how to contact you and, therefore, how to get your " "permission if they want to use your work. And you will get the benefit of an " "extended copyright term." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11950 msgid "" "If it isn't worth it to you to register to get the benefit of an extended " "term, then it shouldn't be worth it for the government to defend your " "monopoly over that work either. The work should pass into the public domain " "where anyone can copy it, or build archives with it, or create a movie based " "on it. It should become free if it is not worth $1 to you." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11957 msgid "" "Some worry about the burden on authors. Won't the burden of registering the " "work mean that the $1 is really misleading? Isn't the hassle worth more than " "$1? Isn't that the real problem with registration?" msgstr "" #. PAGE BREAK 260 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11963 msgid "" "It is. The hassle is terrible. The system that exists now is awful. I " "completely agree that the Copyright Office has done a terrible job (no doubt " "because they are terribly funded) in enabling simple and cheap " "registrations. Any real solution to the problem of formalities must address " "the real problem of governments standing at the core of any system of " "formalities. In this book, I offer such a solution. That solution " "essentially remakes the Copyright Office. For now, assume it was Amazon that " "ran the registration system. Assume it was one-click registration. The " "Eldred Act would propose a simple, one-click registration fifty years after " "a work was published. Based upon historical data, that system would move up " "to 98 percent of commercial work, commercial work that no longer had a " "commercial life, into the public domain within fifty years. What do you " "think?" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11981 msgid "" "When Steve Forbes endorsed the idea, some in Washington began to pay " "attention. Many people contacted me pointing to representatives who might be " "willing to introduce the Eldred Act. And I had a few who directly suggested " "that they might be willing to take the first step." msgstr "" #. type: Content of: <book><chapter><sect1><para><indexterm><primary> #: freeculture.xml:11994 msgid "Lofgren, Zoe" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11987 msgid "" "One representative, Zoe Lofgren of California, went so far as to get the " "bill drafted. The draft solved any problem with international law. It " "imposed the simplest requirement upon copyright owners possible. In May " "2003, it looked as if the bill would be introduced. On May 16, I posted on " "the Eldred Act blog, \"we are close.\" There was a general reaction in the " "blog community that something good might happen here. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:11997 msgid "" "But at this stage, the lobbyists began to intervene. Jack Valenti and the " "MPAA general counsel came to the congresswoman's office to give the view of " "the MPAA. Aided by his lawyer, as Valenti told me, Valenti informed the " "congresswoman that the MPAA would oppose the Eldred Act. The reasons are " "embarrassingly thin. More importantly, their thinness shows something clear " "about what this debate is really about." msgstr "" #. PAGE BREAK 261 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:12005 msgid "" "The MPAA argued first that Congress had \"firmly rejected the central " "concept in the proposed bill\"—that copyrights be renewed. That was " "true, but irrelevant, as Congress's \"firm rejection\" had occurred long " "before the Internet made subsequent uses much more likely. Second, they " "argued that the proposal would harm poor copyright owners—apparently " "those who could not afford the $1 fee. Third, they argued that Congress had " "determined that extending a copyright term would encourage restoration " "work. Maybe in the case of the small percentage of work covered by copyright " "law that is still commercially valuable, but again this was irrelevant, as " "the proposal would not cut off the extended term unless the $1 fee was not " "paid. Fourth, the MPAA argued that the bill would impose \"enormous\" costs, " "since a registration system is not free. True enough, but those costs are " "certainly less than the costs of clearing the rights for a copyright whose " "owner is not known. Fifth, they worried about the risks if the copyright to " "a story underlying a film were to pass into the public domain. But what risk " "is that? If it is in the public domain, then the film is a valid derivative " "use." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:12026 msgid "" "Finally, the MPAA argued that existing law enabled copyright owners to do " "this if they wanted. But the whole point is that there are thousands of " "copyright owners who don't even know they have a copyright to give. Whether " "they are free to give away their copyright or not—a controversial " "claim in any case—unless they know about a copyright, they're not " "likely to." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:12034 msgid "" "At the beginning of this book, I told two stories about the law reacting to " "changes in technology. In the one, common sense prevailed. In the other, " "common sense was delayed. The difference between the two stories was the " "power of the opposition—the power of the side that fought to defend " "the status quo. In both cases, a new technology threatened old " "interests. But in only one case did those interest's have the power to " "protect themselves against this new competitive threat." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:12044 msgid "" "I used these two cases as a way to frame the war that this book has been " "about. For here, too, a new technology is forcing the law to react. And " "here, too, we should ask, is the law following or resisting common sense? If " "common sense supports the law, what explains this common sense?" msgstr "" #. PAGE BREAK 262 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:12053 msgid "" "When the issue is piracy, it is right for the law to back the copyright " "owners. The commercial piracy that I described is wrong and harmful, and the " "law should work to eliminate it. When the issue is p2p sharing, it is easy " "to understand why the law backs the owners still: Much of this sharing is " "wrong, even if much is harmless. When the issue is copyright terms for the " "Mickey Mouses of the world, it is possible still to understand why the law " "favors Hollywood: Most people don't recognize the reasons for limiting " "copyright terms; it is thus still possible to see good faith within the " "resistance." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:12064 msgid "" "But when the copyright owners oppose a proposal such as the Eldred Act, " "then, finally, there is an example that lays bare the naked selfinterest " "driving this war. This act would free an extraordinary range of content that " "is otherwise unused. It wouldn't interfere with any copyright owner's desire " "to exercise continued control over his content. It would simply liberate " "what Kevin Kelly calls the \"Dark Content\" that fills archives around the " "world. So when the warriors oppose a change like this, we should ask one " "simple question:" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:12074 msgid "What does this industry really want?" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:12077 msgid "" "With very little effort, the warriors could protect their content. So the " "effort to block something like the Eldred Act is not really about protecting " "their content. The effort to block the Eldred Act is an effort to assure " "that nothing more passes into the public domain. It is another step to " "assure that the public domain will never compete, that there will be no use " "of content that is not commercially controlled, and that there will be no " "commercial use of content that doesn't require their permission first." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:12087 msgid "" "The opposition to the Eldred Act reveals how extreme the other side is. The " "most powerful and sexy and well loved of lobbies really has as its aim not " "the protection of \"property\" but the rejection of a tradition. Their aim " "is not simply to protect what is theirs. Their aim is to assure that all " "there is is what is theirs." msgstr "" #. PAGE BREAK 263 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:12094 msgid "" "It is not hard to understand why the warriors take this view. It is not hard " "to see why it would benefit them if the competition of the public domain " "tied to the Internet could somehow be quashed. Just as RCA feared the " "competition of FM, they fear the competition of a public domain connected to " "a public that now has the means to create with it and to share its own " "creation." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:12106 msgid "" "What is hard to understand is why the public takes this view. It is as if " "the law made airplanes trespassers. The MPAA stands with the Causbys and " "demands that their remote and useless property rights be respected, so that " "these remote and forgotten copyright holders might block the progress of " "others." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:12113 msgid "" "All this seems to follow easily from this untroubled acceptance of the " "\"property\" in intellectual property. Common sense supports it, and so long " "as it does, the assaults will rain down upon the technologies of the " "Internet. The consequence will be an increasing \"permission society.\" The " "past can be cultivated only if you can identify the owner and gain " "permission to build upon his work. The future will be controlled by this " "dead (and often unfindable) hand of the past." msgstr "" #. type: Content of: <book><chapter><title> #: freeculture.xml:12125 msgid "CONCLUSION" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12127 msgid "" "There are more than 35 million people with the AIDS virus " "worldwide. Twenty-five million of them live in sub-Saharan Africa. " "Seventeen million have already died. Seventeen million Africans is " "proportional percentage-wise to seven million Americans. More importantly, " "it is seventeen million Africans." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12134 msgid "" "There is no cure for AIDS, but there are drugs to slow its progression. " "These antiretroviral therapies are still experimental, but they have already " "had a dramatic effect. In the United States, AIDS patients who regularly " "take a cocktail of these drugs increase their life expectancy by ten to " "twenty years. For some, the drugs make the disease almost invisible." msgstr "" #. f1. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:12149 msgid "" "Commission on Intellectual Property Rights, \"Final Report: Integrating " "Intellectual Property Rights and Development Policy\" (London, 2002), " "available at <ulink url=\"http://free-culture.cc/notes/\">link " "#55</ulink>. According to a World Health Organization press release issued 9 " "July 2002, only 230,000 of the 6 million who need drugs in the developing " "world receive them—and half of them are in Brazil." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12142 msgid "" "These drugs are expensive. When they were first introduced in the United " "States, they cost between $10,000 and $15,000 per person per year. Today, " "some cost $25,000 per year. At these prices, of course, no African nation " "can afford the drugs for the vast majority of its population: $15,000 is " "thirty times the per capita gross national product of Zimbabwe. At these " "prices, the drugs are totally unavailable.<placeholder type=\"footnote\" " "id=\"0\"/>" msgstr "" #. PAGE BREAK 265 #. type: Content of: <book><chapter><para> #: freeculture.xml:12160 msgid "" "These prices are not high because the ingredients of the drugs are " "expensive. These prices are high because the drugs are protected by " "patents. The drug companies that produced these life-saving mixes enjoy at " "least a twenty-year monopoly for their inventions. They use that monopoly " "power to extract the most they can from the market. That power is in turn " "used to keep the prices high." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12168 msgid "" "There are many who are skeptical of patents, especially drug patents. I am " "not. Indeed, of all the areas of research that might be supported by " "patents, drug research is, in my view, the clearest case where patents are " "needed. The patent gives the drug company some assurance that if it is " "successful in inventing a new drug to treat a disease, it will be able to " "earn back its investment and more. This is socially an extremely valuable " "incentive. I am the last person who would argue that the law should abolish " "it, at least without other changes." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12179 msgid "" "But it is one thing to support patents, even drug patents. It is another " "thing to determine how best to deal with a crisis. And as African leaders " "began to recognize the devastation that AIDS was bringing, they started " "looking for ways to import HIV treatments at costs significantly below the " "market price." msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:12197 freeculture.xml:12628 msgid "Braithwaite, John" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:12195 msgid "" "See Peter Drahos with John Braithwaite, Information Feudalism: Who Owns the " "Knowledge Economy? (New York: The New Press, 2003), 37. <placeholder " "type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12186 msgid "" "In 1997, South Africa tried one tack. It passed a law to allow the " "importation of patented medicines that had been produced or sold in another " "nation's market with the consent of the patent owner. For example, if the " "drug was sold in India, it could be imported into Africa from India. This is " "called \"parallel importation,\" and it is generally permitted under " "international trade law and is specifically permitted within the European " "Union.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. f3. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:12207 msgid "" "International Intellectual Property Institute (IIPI), Patent Protection and " "Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report Prepared " "for the World Intellectual Property Organization (Washington, D.C., 2000), " "14, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#56</ulink>. For a firsthand account of the struggle over South Africa, see " "Hearing Before the Subcommittee on Criminal Justice, Drug Policy, and Human " "Resources, House Committee on Government Reform, H. Rep., 1st sess., " "Ser. No. 106-126 (22 July 1999), 150–57 (statement of James Love)." msgstr "" #. f4. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:12239 msgid "" "International Intellectual Property Institute (IIPI), Patent Protection and " "Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a Report Prepared " "for the World Intellectual Property Organization (Washington, D.C., 2000), " "15." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12202 msgid "" "However, the United States government opposed the bill. Indeed, more than " "opposed. As the International Intellectual Property Association " "characterized it, \"The U.S. government pressured South Africa . . . not to " "permit compulsory licensing or parallel imports.\"<placeholder " "type=\"footnote\" id=\"0\"/> Through the Office of the United States Trade " "Representative, the government asked South Africa to change the " "law—and to add pressure to that request, in 1998, the USTR listed " "South Africa for possible trade sanctions. That same year, more than forty " "pharmaceutical companies began proceedings in the South African courts to " "challenge the government's actions. The United States was then joined by " "other governments from the EU. Their claim, and the claim of the " "pharmaceutical companies, was that South Africa was violating its " "obligations under international law by discriminating against a particular " "kind of patent— pharmaceutical patents. The demand of these " "governments, with the United States in the lead, was that South Africa " "respect these patents as it respects any other patent, regardless of any " "effect on the treatment of AIDS within South Africa.<placeholder " "type=\"footnote\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12245 msgid "" "We should place the intervention by the United States in context. No doubt " "patents are not the most important reason that Africans don't have access to " "drugs. Poverty and the total absence of an effective health care " "infrastructure matter more. But whether patents are the most important " "reason or not, the price of drugs has an effect on their demand, and patents " "affect price. And so, whether massive or marginal, there was an effect from " "our government's intervention to stop the flow of medications into Africa." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12255 msgid "" "By stopping the flow of HIV treatment into Africa, the United States " "government was not saving drugs for United States citizens. This is not " "like wheat (if they eat it, we can't); instead, the flow that the United " "States intervened to stop was, in effect, a flow of knowledge: information " "about how to take chemicals that exist within Africa, and turn those " "chemicals into drugs that would save 15 to 30 million lives." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12263 msgid "" "Nor was the intervention by the United States going to protect the profits " "of United States drug companies—at least, not substantially. It was " "not as if these countries were in the position to buy the drugs for the " "prices the drug companies were charging. Again, the Africans are wildly too " "poor to afford these drugs at the offered prices. Stopping the parallel " "import of these drugs would not substantially increase the sales by " "U.S. companies." msgstr "" #. f5. #. PAGE BREAK 333 #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:12278 msgid "" "See Sabin Russell, \"New Crusade to Lower AIDS Drug Costs: Africa's Needs at " "Odds with Firms' Profit Motive,\" San Francisco Chronicle, 24 May 1999, A1, " "available at <ulink url=\"http://free-culture.cc/notes/\">link #57</ulink> " "(\"compulsory licenses and gray markets pose a threat to the entire system " "of intellectual property protection\"); Robert Weissman, \"AIDS and " "Developing Countries: Democratizing Access to Essential Medicines,\" Foreign " "Policy in Focus 4:23 (August 1999), available at <ulink " "url=\"http://free-culture.cc/notes/\">link #58</ulink> (describing " "U.S. policy); John A. Harrelson, \"TRIPS, Pharmaceutical Patents, and the " "HIV/AIDS Crisis: Finding the Proper Balance Between Intellectual Property " "Rights and Compassion, a Synopsis,\" Widener Law Symposium Journal (Spring " "2001): 175." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12272 msgid "" "Instead, the argument in favor of restricting this flow of information, " "which was needed to save the lives of millions, was an argument about the " "sanctity of property.<placeholder type=\"footnote\" id=\"0\"/> It was " "because \"intellectual property\" would be violated that these drugs should " "not flow into Africa. It was a principle about the importance of " "\"intellectual property\" that led these government actors to intervene " "against the South African response to AIDS." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12299 msgid "" "Now just step back for a moment. There will be a time thirty years from now " "when our children look back at us and ask, how could we have let this " "happen? How could we allow a policy to be pursued whose direct cost would be " "to speed the death of 15 to 30 million Africans, and whose only real benefit " "would be to uphold the \"sanctity\" of an idea? What possible justification " "could there ever be for a policy that results in so many deaths? What " "exactly is the insanity that would allow so many to die for such an " "abstraction?" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12309 msgid "" "Some blame the drug companies. I don't. They are corporations. Their " "managers are ordered by law to make money for the corporation. They push a " "certain patent policy not because of ideals, but because it is the policy " "that makes them the most money. And it only makes them the most money " "because of a certain corruption within our political system— a " "corruption the drug companies are certainly not responsible for." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12317 msgid "" "The corruption is our own politicians' failure of integrity. For the drug " "companies would love—they say, and I believe them—to sell their " "drugs as cheaply as they can to countries in Africa and elsewhere. There " "are issues they'd have to resolve to make sure the drugs didn't get back " "into the United States, but those are mere problems of technology. They " "could be overcome." msgstr "" #. PAGE BREAK 268 #. type: Content of: <book><chapter><para> #: freeculture.xml:12325 msgid "" "A different problem, however, could not be overcome. This is the fear of the " "grandstanding politician who would call the presidents of the drug companies " "before a Senate or House hearing, and ask, \"How is it you can sell this HIV " "drug in Africa for only $1 a pill, but the same drug would cost an American " "$1,500?\" Because there is no \"sound bite\" answer to that question, its " "effect would be to induce regulation of prices in America. The drug " "companies thus avoid this spiral by avoiding the first step. They reinforce " "the idea that property should be sacred. They adopt a rational strategy in " "an irrational context, with the unintended consequence that perhaps millions " "die. And that rational strategy thus becomes framed in terms of this " "ideal—the sanctity of an idea called \"intellectual property.\"" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12340 msgid "" "So when the common sense of your child confronts you, what will you say? " "When the common sense of a generation finally revolts against what we have " "done, how will we justify what we have done? What is the argument?" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12346 msgid "" "A sensible patent policy could endorse and strongly support the patent " "system without having to reach everyone everywhere in exactly the same " "way. Just as a sensible copyright policy could endorse and strongly support " "a copyright system without having to regulate the spread of culture " "perfectly and forever, a sensible patent policy could endorse and strongly " "support a patent system without having to block the spread of drugs to a " "country not rich enough to afford market prices in any case. A sensible " "policy, in other words, could be a balanced policy. For most of our history, " "both copyright and patent policies were balanced in just this sense." msgstr "" #. PAGE BREAK 269 #. type: Content of: <book><chapter><para> #: freeculture.xml:12358 msgid "" "But we as a culture have lost this sense of balance. We have lost the " "critical eye that helps us see the difference between truth and extremism. " "A certain property fundamentalism, having no connection to our tradition, " "now reigns in this culture—bizarrely, and with consequences more grave " "to the spread of ideas and culture than almost any other single policy " "decision that we as a democracy will make. A simple idea blinds us, and " "under the cover of darkness, much happens that most of us would reject if " "any of us looked. So uncritically do we accept the idea of property in ideas " "that we don't even notice how monstrous it is to deny ideas to a people who " "are dying without them. So uncritically do we accept the idea of property in " "culture that we don't even question when the control of that property " "removes our ability, as a people, to develop our culture " "democratically. Blindness becomes our common sense. And the challenge for " "anyone who would reclaim the right to cultivate our culture is to find a way " "to make this common sense open its eyes." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12378 msgid "" "So far, common sense sleeps. There is no revolt. Common sense does not yet " "see what there could be to revolt about. The extremism that now dominates " "this debate fits with ideas that seem natural, and that fit is reinforced by " "the RCAs of our day. They wage a frantic war to fight \"piracy,\" and " "devastate a culture for creativity. They defend the idea of \"creative " "property,\" while transforming real creators into modern-day " "sharecroppers. They are insulted by the idea that rights should be balanced, " "even though each of the major players in this content war was itself a " "beneficiary of a more balanced ideal. The hypocrisy reeks. Yet in a city " "like Washington, hypocrisy is not even noticed. Powerful lobbies, complex " "issues, and MTV attention spans produce the \"perfect storm\" for free " "culture." msgstr "" #. f6. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:12395 msgid "" "Jonathan Krim, \"The Quiet War over Open-Source,\" Washington Post, August " "2003, E1, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#59</ulink>; William New, \"Global Group's Shift on `Open Source' Meeting " "Spurs Stir,\" National Journal's Technology Daily, 19 August 2003, available " "at <ulink url=\"http://free-culture.cc/notes/\">link #60</ulink>; William " "New, \"U.S. Official Opposes `Open Source' Talks at WIPO,\" National " "Journal's Technology Daily, 19 August 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #61</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> #: freeculture.xml:12423 freeculture.xml:13143 msgid "PLoS (Public Library of Science)" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12392 msgid "" "In August 2003, a fight broke out in the United States about a decision by " "the World Intellectual Property Organization to cancel a " "meeting.<placeholder type=\"footnote\" id=\"0\"/> At the request of a wide " "range of interests, WIPO had decided to hold a meeting to discuss \"open and " "collaborative projects to create public goods.\" These are projects that " "have been successful in producing public goods without relying exclusively " "upon a proprietary use of intellectual property. Examples include the " "Internet and the World Wide Web, both of which were developed on the basis " "of protocols in the public domain. It included an emerging trend to support " "open academic journals, including the Public Library of Science project that " "I describe in the Afterword. It included a project to develop single " "nucleotide polymorphisms (SNPs), which are thought to have great " "significance in biomedical research. (That nonprofit project comprised a " "consortium of the Wellcome Trust and pharmaceutical and technological " "companies, including Amersham Biosciences, AstraZeneca, Aventis, Bayer, " "Bristol-Myers Squibb, Hoffmann-La Roche, Glaxo-SmithKline, IBM, Motorola, " "Novartis, Pfizer, and Searle.) It included the Global Positioning System, " "which Ronald Reagan set free in the early 1980s. And it included \"open " "source and free software.\" <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12426 msgid "" "The aim of the meeting was to consider this wide range of projects from one " "common perspective: that none of these projects relied upon intellectual " "property extremism. Instead, in all of them, intellectual property was " "balanced by agreements to keep access open or to impose limitations on the " "way in which proprietary claims might be used." msgstr "" #. f7. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:12434 msgid "" "I should disclose that I was one of the people who asked WIPO for the " "meeting." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12433 msgid "" "From the perspective of this book, then, the conference was " "ideal.<placeholder type=\"footnote\" id=\"0\"/> The projects within its " "scope included both commercial and noncommercial work. They primarily " "involved science, but from many perspectives. And WIPO was an ideal venue " "for this discussion, since WIPO is the preeminent international body dealing " "with intellectual property issues." msgstr "" #. PAGE BREAK 271 #. type: Content of: <book><chapter><para> #: freeculture.xml:12444 msgid "" "Indeed, I was once publicly scolded for not recognizing this fact about " "WIPO. In February 2003, I delivered a keynote address to a preparatory " "conference for the World Summit on the Information Society (WSIS). At a " "press conference before the address, I was asked what I would say. I " "responded that I would be talking a little about the importance of balance " "in intellectual property for the development of an information society. The " "moderator for the event then promptly interrupted to inform me and the " "assembled reporters that no question about intellectual property would be " "discussed by WSIS, since those questions were the exclusive domain of " "WIPO. In the talk that I had prepared, I had actually made the issue of " "intellectual property relatively minor. But after this astonishing " "statement, I made intellectual property the sole focus of my talk. There was " "no way to talk about an \"Information Society\" unless one also talked about " "the range of information and culture that would be free. My talk did not " "make my immoderate moderator very happy. And she was no doubt correct that " "the scope of intellectual property protections was ordinarily the stuff of " "WIPO. But in my view, there couldn't be too much of a conversation about how " "much intellectual property is needed, since in my view, the very idea of " "balance in intellectual property had been lost." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12468 msgid "" "So whether or not WSIS can discuss balance in intellectual property, I had " "thought it was taken for granted that WIPO could and should. And thus the " "meeting about \"open and collaborative projects to create public goods\" " "seemed perfectly appropriate within the WIPO agenda." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12474 msgid "" "But there is one project within that list that is highly controversial, at " "least among lobbyists. That project is \"open source and free software.\" " "Microsoft in particular is wary of discussion of the subject. From its " "perspective, a conference to discuss open source and free software would be " "like a conference to discuss Apple's operating system. Both open source and " "free software compete with Microsoft's software. And internationally, many " "governments have begun to explore requirements that they use open source or " "free software, rather than \"proprietary software,\" for their own internal " "uses." msgstr "" #. f8. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:12496 msgid "" "Microsoft's position about free and open source software is more " "sophisticated. As it has repeatedly asserted, it has no problem with \"open " "source\" software or software in the public domain. Microsoft's principal " "opposition is to \"free software\" licensed under a \"copyleft\" license, " "meaning a license that requires the licensee to adopt the same terms on any " "derivative work. See Bradford L. Smith, \"The Future of Software: Enabling " "the Marketplace to Decide,\" Government Policy Toward Open Source Software " "(Washington, D.C.: AEI-Brookings Joint Center for Regulatory Studies, " "American Enterprise Institute for Public Policy Research, 2002), 69, " "available at <ulink url=\"http://free-culture.cc/notes/\">link " "#62</ulink>. See also Craig Mundie, Microsoft senior vice president, The " "Commercial Software Model, discussion at New York University Stern School of " "Business (3 May 2001), available at <ulink " "url=\"http://free-culture.cc/notes/\">link #63</ulink>." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12485 msgid "" "I don't mean to enter that debate here. It is important only to make clear " "that the distinction is not between commercial and noncommercial " "software. There are many important companies that depend fundamentally upon " "open source and free software, IBM being the most prominent. IBM is " "increasingly shifting its focus to the GNU/Linux operating system, the most " "famous bit of \"free software\"—and IBM is emphatically a commercial " "entity. Thus, to support \"open source and free software\" is not to oppose " "commercial entities. It is, instead, to support a mode of software " "development that is different from Microsoft's.<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. PAGE BREAK 272 #. type: Content of: <book><chapter><para> #: freeculture.xml:12514 msgid "" "More important for our purposes, to support \"open source and free " "software\" is not to oppose copyright. \"Open source and free software\" is " "not software in the public domain. Instead, like Microsoft's software, the " "copyright owners of free and open source software insist quite strongly that " "the terms of their software license be respected by adopters of free and " "open source software. The terms of that license are no doubt different from " "the terms of a proprietary software license. Free software licensed under " "the General Public License (GPL), for example, requires that the source code " "for the software be made available by anyone who modifies and redistributes " "the software. But that requirement is effective only if copyright governs " "software. If copyright did not govern software, then free software could not " "impose the same kind of requirements on its adopters. It thus depends upon " "copyright law just as Microsoft does." msgstr "" #. f9. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:12540 msgid "" "Krim, \"The Quiet War over Open-Source,\" available at <ulink " "url=\"http://free-culture.cc/notes/\">link #64</ulink>." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12532 msgid "" "It is therefore understandable that as a proprietary software developer, " "Microsoft would oppose this WIPO meeting, and understandable that it would " "use its lobbyists to get the United States government to oppose it, as " "well. And indeed, that is just what was reported to have happened. According " "to Jonathan Krim of the Washington Post, Microsoft's lobbyists succeeded in " "getting the United States government to veto the meeting.<placeholder " "type=\"footnote\" id=\"0\"/> And without U.S. backing, the meeting was " "canceled." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12546 msgid "" "I don't blame Microsoft for doing what it can to advance its own interests, " "consistent with the law. And lobbying governments is plainly consistent with " "the law. There was nothing surprising about its lobbying here, and nothing " "terribly surprising about the most powerful software producer in the United " "States having succeeded in its lobbying efforts." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12554 msgid "" "What was surprising was the United States government's reason for opposing " "the meeting. Again, as reported by Krim, Lois Boland, acting director of " "international relations for the U.S. Patent and Trademark Office, explained " "that \"open-source software runs counter to the mission of WIPO, which is to " "promote intellectual-property rights.\" She is quoted as saying, \"To hold a " "meeting which has as its purpose to disclaim or waive such rights seems to " "us to be contrary to the goals of WIPO.\"" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12564 msgid "These statements are astonishing on a number of levels." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12568 msgid "" "First, they are just flat wrong. As I described, most open source and free " "software relies fundamentally upon the intellectual property right called " "\"copyright\". Without it, restrictions imposed by those licenses wouldn't " "work. Thus, to say it \"runs counter\" to the mission of promoting " "intellectual property rights reveals an extraordinary gap in " "understanding—the sort of mistake that is excusable in a first-year " "law student, but an embarrassment from a high government official dealing " "with intellectual property issues." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12578 msgid "" "Second, who ever said that WIPO's exclusive aim was to \"promote\" " "intellectual property maximally? As I had been scolded at the preparatory " "conference of WSIS, WIPO is to consider not only how best to protect " "intellectual property, but also what the best balance of intellectual " "property is. As every economist and lawyer knows, the hard question in " "intellectual property law is to find that balance. But that there should be " "limits is, I had thought, uncontested. One wants to ask Ms. Boland, are " "generic drugs (drugs based on drugs whose patent has expired) contrary to " "the WIPO mission? Does the public domain weaken intellectual property? Would " "it have been better if the protocols of the Internet had been patented?" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12591 msgid "" "Third, even if one believed that the purpose of WIPO was to maximize " "intellectual property rights, in our tradition, intellectual property rights " "are held by individuals and corporations. They get to decide what to do with " "those rights because, again, they are their rights. If they want to " "\"waive\" or \"disclaim\" their rights, that is, within our tradition, " "totally appropriate. When Bill Gates gives away more than $20 billion to do " "good in the world, that is not inconsistent with the objectives of the " "property system. That is, on the contrary, just what a property system is " "supposed to be about: giving individuals the right to decide what to do with " "their property. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. PAGE BREAK 274 #. type: Content of: <book><chapter><para> #: freeculture.xml:12604 msgid "" "When Ms. Boland says that there is something wrong with a meeting \"which " "has as its purpose to disclaim or waive such rights,\" she's saying that " "WIPO has an interest in interfering with the choices of the individuals who " "own intellectual property rights. That somehow, WIPO's objective should be " "to stop an individual from \"waiving\" or \"disclaiming\" an intellectual " "property right. That the interest of WIPO is not just that intellectual " "property rights be maximized, but that they also should be exercised in the " "most extreme and restrictive way possible." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12616 msgid "" "There is a history of just such a property system that is well known in the " "Anglo-American tradition. It is called \"feudalism.\" Under feudalism, not " "only was property held by a relatively small number of individuals and " "entities. And not only were the rights that ran with that property powerful " "and extensive. But the feudal system had a strong interest in assuring that " "property holders within that system not weaken feudalism by liberating " "people or property within their control to the free market. Feudalism " "depended upon maximum control and concentration. It fought any freedom that " "might interfere with that control." msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:12633 msgid "" "See Drahos with Braithwaite, Information Feudalism, 210–20. " "<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12630 msgid "" "As Peter Drahos and John Braithwaite relate, this is precisely the choice we " "are now making about intellectual property.<placeholder type=\"footnote\" " "id=\"0\"/> We will have an information society. That much is certain. Our " "only choice now is whether that information society will be free or " "feudal. The trend is toward the feudal." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12641 msgid "" "When this battle broke, I blogged it. A spirited debate within the comment " "section ensued. Ms. Boland had a number of supporters who tried to show why " "her comments made sense. But there was one comment that was particularly " "depressing for me. An anonymous poster wrote," msgstr "" #. PAGE BREAK 275 #. type: Content of: <book><chapter><blockquote><para> #: freeculture.xml:12648 msgid "" "George, you misunderstand Lessig: He's only talking about the world as it " "should be (\"the goal of WIPO, and the goal of any government, should be to " "promote the right balance of intellectual property rights, not simply to " "promote intellectual property rights\"), not as it is. If we were talking " "about the world as it is, then of course Boland didn't say anything " "wrong. But in the world as Lessig would have it, then of course she " "did. Always pay attention to the distinction between Lessig's world and " "ours." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12660 msgid "" "I missed the irony the first time I read it. I read it quickly and thought " "the poster was supporting the idea that seeking balance was what our " "government should be doing. (Of course, my criticism of Ms. Boland was not " "about whether she was seeking balance or not; my criticism was that her " "comments betrayed a first-year law student's mistake. I have no illusion " "about the extremism of our government, whether Republican or Democrat. My " "only illusion apparently is about whether our government should speak the " "truth or not.)" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12670 msgid "" "Obviously, however, the poster was not supporting that idea. Instead, the " "poster was ridiculing the very idea that in the real world, the \"goal\" of " "a government should be \"to promote the right balance\" of intellectual " "property. That was obviously silly to him. And it obviously betrayed, he " "believed, my own silly utopianism. \"Typical for an academic,\" the poster " "might well have continued." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12678 msgid "" "I understand criticism of academic utopianism. I think utopianism is silly, " "too, and I'd be the first to poke fun at the absurdly unrealistic ideals of " "academics throughout history (and not just in our own country's history)." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12684 msgid "" "But when it has become silly to suppose that the role of our government " "should be to \"seek balance,\" then count me with the silly, for that means " "that this has become quite serious indeed. If it should be obvious to " "everyone that the government does not seek balance, that the government is " "simply the tool of the most powerful lobbyists, that the idea of holding the " "government to a different standard is absurd, that the idea of demanding of " "the government that it speak truth and not lies is just naïve, then who " "have we, the most powerful democracy in the world, become?" msgstr "" #. PAGE BREAK 276 #. type: Content of: <book><chapter><para> #: freeculture.xml:12695 msgid "" "It might be crazy to expect a high government official to speak the " "truth. It might be crazy to believe that government policy will be something " "more than the handmaiden of the most powerful interests. It might be crazy " "to argue that we should preserve a tradition that has been part of our " "tradition for most of our history—free culture." msgstr "" #. type: Content of: <book><chapter><para><indexterm><primary> #: freeculture.xml:12714 msgid "Turner, Ted" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12704 msgid "" "If this is crazy, then let there be more crazies. Soon. There are moments " "of hope in this struggle. And moments that surprise. When the FCC was " "considering relaxing ownership rules, which would thereby further increase " "the concentration in media ownership, an extraordinary bipartisan coalition " "formed to fight this change. For perhaps the first time in history, " "interests as diverse as the NRA, the ACLU, Moveon.org, William Safire, Ted " "Turner, and CodePink Women for Peace organized to oppose this change in FCC " "policy. An astonishing 700,000 letters were sent to the FCC, demanding more " "hearings and a different result. <placeholder type=\"indexterm\" id=\"0\"/> " "<placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12718 msgid "" "This activism did not stop the FCC, but soon after, a broad coalition in the " "Senate voted to reverse the FCC decision. The hostile hearings leading up to " "that vote revealed just how powerful this movement had become. There was no " "substantial support for the FCC's decision, and there was broad and " "sustained support for fighting further concentration in the media." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12726 msgid "" "But even this movement misses an important piece of the puzzle. Largeness " "as such is not bad. Freedom is not threatened just because some become very " "rich, or because there are only a handful of big players. The poor quality " "of Big Macs or Quarter Pounders does not mean that you can't get a good " "hamburger from somewhere else." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12733 msgid "" "The danger in media concentration comes not from the concentration, but " "instead from the feudalism that this concentration, tied to the change in " "copyright, produces. It is not just that there are a few powerful companies " "that control an ever expanding slice of the media. It is that this " "concentration can call upon an equally bloated range of " "rights—property rights of a historically extreme form—that makes " "their bigness bad." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12743 msgid "" "It is therefore significant that so many would rally to demand competition " "and increased diversity. Still, if the rally is understood as being about " "bigness alone, it is not terribly surprising. We Americans have a long " "history of fighting \"big,\" wisely or not. That we could be motivated to " "fight \"big\" again is not something new." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12750 msgid "" "It would be something new, and something very important, if an equal number " "could be rallied to fight the increasing extremism built within the idea of " "\"intellectual property.\" Not because balance is alien to our tradition; " "indeed, as I've argued, balance is our tradition. But because the muscle to " "think critically about the scope of anything called \"property\" is not well " "exercised within this tradition anymore." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12758 msgid "" "If we were Achilles, this would be our heel. This would be the place of our " "tragedy." msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:12761 msgid "Dylan, Bob" msgstr "" #. f11. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:12766 msgid "" "John Borland, \"RIAA Sues 261 File Swappers,\" CNET News.com, September " "2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#65</ulink>; Paul R. La Monica, \"Music Industry Sues Swappers,\" CNN/Money, " "8 September 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #66</ulink>; Soni Sangha and " "Phyllis Furman with Robert Gearty, \"Sued for a Song, N.Y.C. 12-Yr-Old Among " "261 Cited as Sharers,\" New York Daily News, 9 September 2003, 3; Frank " "Ahrens, \"RIAA's Lawsuits Meet Surprised Targets; Single Mother in Calif., " "12-Year-Old Girl in N.Y. Among Defendants,\" Washington Post, 10 September " "2003, E1; Katie Dean, \"Schoolgirl Settles with RIAA,\" Wired News, 10 " "September 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #67</ulink>." msgstr "" #. f12. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:12784 msgid "" "Jon Wiederhorn, \"Eminem Gets Sued . . . by a Little Old Lady,\" mtv.com, 17 " "September 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #68</ulink>." msgstr "" #. f13. #. PAGE BREAK 334 #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:12791 msgid "" "Kenji Hall, Associated Press, \"Japanese Book May Be Inspiration for Dylan " "Songs,\" Kansascity.com, 9 July 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #69</ulink>." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12763 msgid "" "As I write these final words, the news is filled with stories about the RIAA " "lawsuits against almost three hundred individuals.<placeholder " "type=\"footnote\" id=\"0\"/> Eminem has just been sued for \"sampling\" " "someone else's music.<placeholder type=\"footnote\" id=\"1\"/> The story " "about Bob Dylan \"stealing\" from a Japanese author has just finished making " "the rounds.<placeholder type=\"footnote\" id=\"2\"/> An insider from " "Hollywood—who insists he must remain anonymous—reports \"an " "amazing conversation with these studio guys. They've got extraordinary [old] " "content that they'd love to use but can't because they can't begin to clear " "the rights. They've got scores of kids who could do amazing things with the " "content, but it would take scores of lawyers to clean it first.\" " "Congressmen are talking about deputizing computer viruses to bring down " "computers thought to violate the law. Universities are threatening expulsion " "for kids who use a computer to share content." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:12808 freeculture.xml:13159 msgid "Creative Commons" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:12809 msgid "Gil, Gilberto" msgstr "" #. f14. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:12814 msgid "" "\"BBC Plans to Open Up Its Archive to the Public,\" BBC press release, 24 " "August 2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#70</ulink>." msgstr "" #. f15. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:12823 msgid "" "\"Creative Commons and Brazil,\" Creative Commons Weblog, 6 August 2003, " "available at <ulink url=\"http://free-culture.cc/notes/\">link #71</ulink>." msgstr "" #. PAGE BREAK 278 #. type: Content of: <book><chapter><para> #: freeculture.xml:12811 msgid "" "Yet on the other side of the Atlantic, the BBC has just announced that it " "will build a \"Creative Archive,\" from which British citizens can download " "BBC content, and rip, mix, and burn it.<placeholder type=\"footnote\" " "id=\"0\"/> And in Brazil, the culture minister, Gilberto Gil, himself a folk " "hero of Brazilian music, has joined with Creative Commons to release content " "and free licenses in that Latin American country.<placeholder " "type=\"footnote\" id=\"1\"/> I've told a dark story. The truth is more " "mixed. A technology has given us a new freedom. Slowly, some begin to " "understand that this freedom need not mean anarchy. We can carry a free " "culture into the twenty-first century, without artists losing and without " "the potential of digital technology being destroyed. It will take some " "thought, and more importantly, it will take some will to transform the RCAs " "of our day into the Causbys." msgstr "" #. PAGE BREAK 279 #. type: Content of: <book><chapter><para> #: freeculture.xml:12837 msgid "" "Common sense must revolt. It must act to free culture. Soon, if this " "potential is ever to be realized." msgstr "" #. type: Content of: <book><chapter><title> #: freeculture.xml:12845 msgid "AFTERWORD" msgstr "" #. PAGE BREAK 280 #. type: Content of: <book><chapter><para> #: freeculture.xml:12849 msgid "" "At least some who have read this far will agree with me that something must " "be done to change where we are heading. The balance of this book maps what " "might be done." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12854 msgid "" "I divide this map into two parts: that which anyone can do now, and that " "which requires the help of lawmakers. If there is one lesson that we can " "draw from the history of remaking common sense, it is that it requires " "remaking how many people think about the very same issue." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12860 msgid "" "That means this movement must begin in the streets. It must recruit a " "significant number of parents, teachers, librarians, creators, authors, " "musicians, filmmakers, scientists—all to tell this story in their own " "words, and to tell their neighbors why this battle is so important." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:12867 msgid "" "Once this movement has its effect in the streets, it has some hope of having " "an effect in Washington. We are still a democracy. What people think " "matters. Not as much as it should, at least when an RCA stands opposed, but " "still, it matters. And thus, in the second part below, I sketch changes that " "Congress could make to better secure a free culture." msgstr "" #. type: Content of: <book><chapter><sect1><title> #: freeculture.xml:12876 msgid "US, NOW" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:12878 msgid "" "Common sense is with the copyright warriors because the debate so far has " "been framed at the extremes—as a grand either/or: either property or " "anarchy, either total control or artists won't be paid. If that really is " "the choice, then the warriors should win." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:12884 msgid "" "The mistake here is the error of the excluded middle. There are extremes in " "this debate, but the extremes are not all that there is. There are those who " "believe in maximal copyright—\"All Rights Reserved\"— and those " "who reject copyright—\"No Rights Reserved.\" The \"All Rights " "Reserved\" sorts believe that you should ask permission before you \"use\" a " "copyrighted work in any way. The \"No Rights Reserved\" sorts believe you " "should be able to do with content as you wish, regardless of whether you " "have permission or not." msgstr "" #. PAGE BREAK 282 #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:12894 msgid "" "When the Internet was first born, its initial architecture effectively " "tilted in the \"no rights reserved\" direction. Content could be copied " "perfectly and cheaply; rights could not easily be controlled. Thus, " "regardless of anyone's desire, the effective regime of copyright under the " "original design of the Internet was \"no rights reserved.\" Content was " "\"taken\" regardless of the rights. Any rights were effectively unprotected." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:12906 msgid "" "This initial character produced a reaction (opposite, but not quite equal) " "by copyright owners. That reaction has been the topic of this book. Through " "legislation, litigation, and changes to the network's design, copyright " "holders have been able to change the essential character of the environment " "of the original Internet. If the original architecture made the effective " "default \"no rights reserved,\" the future architecture will make the " "effective default \"all rights reserved.\" The architecture and law that " "surround the Internet's design will increasingly produce an environment " "where all use of content requires permission. The \"cut and paste\" world " "that defines the Internet today will become a \"get permission to cut and " "paste\" world that is a creator's nightmare." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:12920 msgid "" "What's needed is a way to say something in the middle—neither \"all " "rights reserved\" nor \"no rights reserved\" but \"some rights " "reserved\"— and thus a way to respect copyrights but enable creators " "to free content as they see fit. In other words, we need a way to restore a " "set of freedoms that we could just take for granted before." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:12929 msgid "Rebuilding Freedoms Previously Presumed: Examples" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:12931 msgid "" "If you step back from the battle I've been describing here, you will " "recognize this problem from other contexts. Think about privacy. Before the " "Internet, most of us didn't have to worry much about data about our lives " "that we broadcast to the world. If you walked into a bookstore and browsed " "through some of the works of Karl Marx, you didn't need to worry about " "explaining your browsing habits to your neighbors or boss. The \"privacy\" " "of your browsing habits was assured." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:12941 msgid "What made it assured?" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:12945 msgid "" "Well, if we think in terms of the modalities I described in chapter 10, your " "privacy was assured because of an inefficient architecture for gathering " "data and hence a market constraint (cost) on anyone who wanted to gather " "that data. If you were a suspected spy for North Korea, working for the CIA, " "no doubt your privacy would not be assured. But that's because the CIA " "would (we hope) find it valuable enough to spend the thousands required to " "track you. But for most of us (again, we can hope), spying doesn't pay. The " "highly inefficient architecture of real space means we all enjoy a fairly " "robust amount of privacy. That privacy is guaranteed to us by friction. Not " "by law (there is no law protecting \"privacy\" in public places), and in " "many places, not by norms (snooping and gossip are just fun), but instead, " "by the costs that friction imposes on anyone who would want to spy." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:12959 msgid "Amazon" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:12961 msgid "" "Enter the Internet, where the cost of tracking browsing in particular has " "become quite tiny. If you're a customer at Amazon, then as you browse the " "pages, Amazon collects the data about what you've looked at. You know this " "because at the side of the page, there's a list of \"recently viewed\" " "pages. Now, because of the architecture of the Net and the function of " "cookies on the Net, it is easier to collect the data than not. The friction " "has disappeared, and hence any \"privacy\" protected by the friction " "disappears, too." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:12971 msgid "" "Amazon, of course, is not the problem. But we might begin to worry about " "libraries. If you're one of those crazy lefties who thinks that people " "should have the \"right\" to browse in a library without the government " "knowing which books you look at (I'm one of those lefties, too), then this " "change in the technology of monitoring might concern you. If it becomes " "simple to gather and sort who does what in electronic spaces, then the " "friction-induced privacy of yesterday disappears." msgstr "" #. f1. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:12987 msgid "" "See, for example, Marc Rotenberg, \"Fair Information Practices and the " "Architecture of Privacy (What Larry Doesn't Get),\" Stanford Technology Law " "Review 1 (2001): par. 6–18, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #72</ulink> (describing examples " "in which technology defines privacy policy). See also Jeffrey Rosen, The " "Naked Crowd: Reclaiming Security and Freedom in an Anxious Age (New York: " "Random House, 2004) (mapping tradeoffs between technology and privacy)." msgstr "" #. PAGE BREAK 284 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:12981 msgid "" "It is this reality that explains the push of many to define \"privacy\" on " "the Internet. It is the recognition that technology can remove what friction " "before gave us that leads many to push for laws to do what friction " "did.<placeholder type=\"footnote\" id=\"0\"/> And whether you're in favor of " "those laws or not, it is the pattern that is important here. We must take " "affirmative steps to secure a kind of freedom that was passively provided " "before. A change in technology now forces those who believe in privacy to " "affirmatively act where, before, privacy was given by default." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13005 msgid "" "A similar story could be told about the birth of the free software " "movement. When computers with software were first made available " "commercially, the software—both the source code and the " "binaries— was free. You couldn't run a program written for a Data " "General machine on an IBM machine, so Data General and IBM didn't care much " "about controlling their software." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><indexterm><primary> #: freeculture.xml:13012 msgid "Stallman, Richard" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13014 msgid "" "That was the world Richard Stallman was born into, and while he was a " "researcher at MIT, he grew to love the community that developed when one was " "free to explore and tinker with the software that ran on machines. Being a " "smart sort himself, and a talented programmer, Stallman grew to depend upon " "the freedom to add to or modify other people's work." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13022 msgid "" "In an academic setting, at least, that's not a terribly radical idea. In a " "math department, anyone would be free to tinker with a proof that someone " "offered. If you thought you had a better way to prove a theorem, you could " "take what someone else did and change it. In a classics department, if you " "believed a colleague's translation of a recently discovered text was flawed, " "you were free to improve it. Thus, to Stallman, it seemed obvious that you " "should be free to tinker with and improve the code that ran a machine. This, " "too, was knowledge. Why shouldn't it be open for criticism like anything " "else?" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13034 msgid "" "No one answered that question. Instead, the architecture of revenue for " "computing changed. As it became possible to import programs from one system " "to another, it became economically attractive (at least in the view of some) " "to hide the code of your program. So, too, as companies started selling " "peripherals for mainframe systems. If I could just take your printer driver " "and copy it, then that would make it easier for me to sell a printer to the " "market than it was for you." msgstr "" #. PAGE BREAK 285 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13043 msgid "" "Thus, the practice of proprietary code began to spread, and by the early " "1980s, Stallman found himself surrounded by proprietary code. The world of " "free software had been erased by a change in the economics of computing. And " "as he believed, if he did nothing about it, then the freedom to change and " "share software would be fundamentally weakened." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13052 msgid "" "Therefore, in 1984, Stallman began a project to build a free operating " "system, so that at least a strain of free software would survive. That was " "the birth of the GNU project, into which Linus Torvalds's \"Linux\" kernel " "was added to produce the GNU/Linux operating system." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13058 msgid "" "Stallman's technique was to use copyright law to build a world of software " "that must be kept free. Software licensed under the Free Software " "Foundation's GPL cannot be modified and distributed unless the source code " "for that software is made available as well. Thus, anyone building upon " "GPL'd software would have to make their buildings free as well. This would " "assure, Stallman believed, that an ecology of code would develop that " "remained free for others to build upon. His fundamental goal was freedom; " "innovative creative code was a byproduct." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13069 msgid "" "Stallman was thus doing for software what privacy advocates now do for " "privacy. He was seeking a way to rebuild a kind of freedom that was taken " "for granted before. Through the affirmative use of licenses that bind " "copyrighted code, Stallman was affirmatively reclaiming a space where free " "software would survive. He was actively protecting what before had been " "passively guaranteed." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13077 msgid "" "Finally, consider a very recent example that more directly resonates with " "the story of this book. This is the shift in the way academic and scientific " "journals are produced." msgstr "" #. PAGE BREAK 286 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13082 msgid "" "As digital technologies develop, it is becoming obvious to many that " "printing thousands of copies of journals every month and sending them to " "libraries is perhaps not the most efficient way to distribute " "knowledge. Instead, journals are increasingly becoming electronic, and " "libraries and their users are given access to these electronic journals " "through password-protected sites. Something similar to this has been " "happening in law for almost thirty years: Lexis and Westlaw have had " "electronic versions of case reports available to subscribers to their " "service. Although a Supreme Court opinion is not copyrighted, and anyone is " "free to go to a library and read it, Lexis and Westlaw are also free to " "charge users for the privilege of gaining access to that Supreme Court " "opinion through their respective services." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13098 msgid "" "There's nothing wrong in general with this, and indeed, the ability to " "charge for access to even public domain materials is a good incentive for " "people to develop new and innovative ways to spread knowledge. The law has " "agreed, which is why Lexis and Westlaw have been allowed to flourish. And if " "there's nothing wrong with selling the public domain, then there could be " "nothing wrong, in principle, with selling access to material that is not in " "the public domain." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13107 msgid "" "But what if the only way to get access to social and scientific data was " "through proprietary services? What if no one had the ability to browse this " "data except by paying for a subscription?" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13112 msgid "" "As many are beginning to notice, this is increasingly the reality with " "scientific journals. When these journals were distributed in paper form, " "libraries could make the journals available to anyone who had access to the " "library. Thus, patients with cancer could become cancer experts because the " "library gave them access. Or patients trying to understand the risks of a " "certain treatment could research those risks by reading all available " "articles about that treatment. This freedom was therefore a function of the " "institution of libraries (norms) and the technology of paper journals " "(architecture)—namely, that it was very hard to control access to a " "paper journal." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13124 msgid "" "As journals become electronic, however, the publishers are demanding that " "libraries not give the general public access to the journals. This means " "that the freedoms provided by print journals in public libraries begin to " "disappear. Thus, as with privacy and with software, a changing technology " "and market shrink a freedom taken for granted before." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13132 msgid "" "This shrinking freedom has led many to take affirmative steps to restore the " "freedom that has been lost. The Public Library of Science (PLoS), for " "example, is a nonprofit corporation dedicated to making scientific research " "available to anyone with a Web connection. Authors of scientific work submit " "that work to the Public Library of Science. That work is then subject to " "peer review. If accepted, the work is then deposited in a public, electronic " "archive and made permanently available for free. PLoS also sells a print " "version of its work, but the copyright for the print journal does not " "inhibit the right of anyone to redistribute the work for free. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13146 msgid "" "This is one of many such efforts to restore a freedom taken for granted " "before, but now threatened by changing technology and markets. There's no " "doubt that this alternative competes with the traditional publishers and " "their efforts to make money from the exclusive distribution of content. But " "competition in our tradition is presumptively a good—especially when " "it helps spread knowledge and science." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:13157 msgid "Rebuilding Free Culture: One Idea" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13162 msgid "" "The same strategy could be applied to culture, as a response to the " "increasing control effected through law and technology." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13166 msgid "" "Enter the Creative Commons. The Creative Commons is a nonprofit corporation " "established in Massachusetts, but with its home at Stanford University. Its " "aim is to build a layer of reasonable copyright on top of the extremes that " "now reign. It does this by making it easy for people to build upon other " "people's work, by making it simple for creators to express the freedom for " "others to take and build upon their work. Simple tags, tied to " "human-readable descriptions, tied to bulletproof licenses, make this " "possible." msgstr "" #. PAGE BREAK 288 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13176 msgid "" "Simple—which means without a middleman, or without a lawyer. By " "developing a free set of licenses that people can attach to their content, " "Creative Commons aims to mark a range of content that can easily, and " "reliably, be built upon. These tags are then linked to machine-readable " "versions of the license that enable computers automatically to identify " "content that can easily be shared. These three expressions together—a " "legal license, a human-readable description, and machine-readable " "tags—constitute a Creative Commons license. A Creative Commons license " "constitutes a grant of freedom to anyone who accesses the license, and more " "importantly, an expression of the ideal that the person associated with the " "license believes in something different than the \"All\" or \"No\" " "extremes. Content is marked with the CC mark, which does not mean that " "copyright is waived, but that certain freedoms are given." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13194 msgid "" "These freedoms are beyond the freedoms promised by fair use. Their precise " "contours depend upon the choices the creator makes. The creator can choose a " "license that permits any use, so long as attribution is given. She can " "choose a license that permits only noncommercial use. She can choose a " "license that permits any use so long as the same freedoms are given to other " "uses (\"share and share alike\"). Or any use so long as no derivative use is " "made. Or any use at all within developing nations. Or any sampling use, so " "long as full copies are not made. Or lastly, any educational use." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13205 msgid "" "These choices thus establish a range of freedoms beyond the default of " "copyright law. They also enable freedoms that go beyond traditional fair " "use. And most importantly, they express these freedoms in a way that " "subsequent users can use and rely upon without the need to hire a " "lawyer. Creative Commons thus aims to build a layer of content, governed by " "a layer of reasonable copyright law, that others can build upon. Voluntary " "choice of individuals and creators will make this content available. And " "that content will in turn enable us to rebuild a public domain." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><indexterm><primary> #: freeculture.xml:13226 msgid "Garlick, Mia" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13216 msgid "" "This is just one project among many within the Creative Commons. And of " "course, Creative Commons is not the only organization pursuing such " "freedoms. But the point that distinguishes the Creative Commons from many is " "that we are not interested only in talking about a public domain or in " "getting legislators to help build a public domain. Our aim is to build a " "movement of consumers and producers of content (\"content conducers,\" as " "attorney Mia Garlick calls them) who help build the public domain and, by " "their work, demonstrate the importance of the public domain to other " "creativity. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13229 msgid "" "The aim is not to fight the \"All Rights Reserved\" sorts. The aim is to " "complement them. The problems that the law creates for us as a culture are " "produced by insane and unintended consequences of laws written centuries " "ago, applied to a technology that only Jefferson could have imagined. The " "rules may well have made sense against a background of technologies from " "centuries ago, but they do not make sense against the background of digital " "technologies. New rules—with different freedoms, expressed in ways so " "that humans without lawyers can use them—are needed. Creative Commons " "gives people a way effectively to begin to build those rules." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13241 msgid "" "Why would creators participate in giving up total control? Some participate " "to better spread their content. Cory Doctorow, for example, is a science " "fiction author. His first novel, Down and Out in the Magic Kingdom, was " "released on-line and for free, under a Creative Commons license, on the same " "day that it went on sale in bookstores." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13248 msgid "" "Why would a publisher ever agree to this? I suspect his publisher reasoned " "like this: There are two groups of people out there: (1) those who will buy " "Cory's book whether or not it's on the Internet, and (2) those who may never " "hear of Cory's book, if it isn't made available for free on the " "Internet. Some part of (1) will download Cory's book instead of buying " "it. Call them bad-(1)s. Some part of (2) will download Cory's book, like " "it, and then decide to buy it. Call them (2)-goods. If there are more " "(2)-goods than bad-(1)s, the strategy of releasing Cory's book free on-line " "will probably increase sales of Cory's book." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13260 msgid "" "Indeed, the experience of his publisher clearly supports that conclusion. " "The book's first printing was exhausted months before the publisher had " "expected. This first novel of a science fiction author was a total success." msgstr "" #. PAGE BREAK 290 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13266 msgid "" "The idea that free content might increase the value of nonfree content was " "confirmed by the experience of another author. Peter Wayner, who wrote a " "book about the free software movement titled Free for All, made an " "electronic version of his book free on-line under a Creative Commons license " "after the book went out of print. He then monitored used book store prices " "for the book. As predicted, as the number of downloads increased, the used " "book price for his book increased, as well." msgstr "" #. f2. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:13292 msgid "" "Willful Infringement: A Report from the Front Lines of the Real Culture Wars " "(2003), produced by Jed Horovitz, directed by Greg Hittelman, a Fiat Lucre " "production, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#72</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13277 msgid "" "These are examples of using the Commons to better spread proprietary " "content. I believe that is a wonderful and common use of the Commons. There " "are others who use Creative Commons licenses for other reasons. Many who use " "the \"sampling license\" do so because anything else would be " "hypocritical. The sampling license says that others are free, for commercial " "or noncommercial purposes, to sample content from the licensed work; they " "are just not free to make full copies of the licensed work available to " "others. This is consistent with their own art—they, too, sample from " "others. Because the legal costs of sampling are so high (Walter Leaphart, " "manager of the rap group Public Enemy, which was born sampling the music of " "others, has stated that he does not \"allow\" Public Enemy to sample " "anymore, because the legal costs are so high<placeholder type=\"footnote\" " "id=\"0\"/>), these artists release into the creative environment content " "that others can build upon, so that their form of creativity might grow." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13301 msgid "" "Finally, there are many who mark their content with a Creative Commons " "license just because they want to express to others the importance of " "balance in this debate. If you just go along with the system as it is, you " "are effectively saying you believe in the \"All Rights Reserved\" " "model. Good for you, but many do not. Many believe that however appropriate " "that rule is for Hollywood and freaks, it is not an appropriate description " "of how most creators view the rights associated with their content. The " "Creative Commons license expresses this notion of \"Some Rights Reserved,\" " "and gives many the chance to say it to others." msgstr "" #. PAGE BREAK 291 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13313 msgid "" "In the first six months of the Creative Commons experiment, over 1 million " "objects were licensed with these free-culture licenses. The next step is " "partnerships with middleware content providers to help them build into their " "technologies simple ways for users to mark their content with Creative " "Commons freedoms. Then the next step is to watch and celebrate creators who " "build content based upon content set free." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13323 msgid "" "These are first steps to rebuilding a public domain. They are not mere " "arguments; they are action. Building a public domain is the first step to " "showing people how important that domain is to creativity and " "innovation. Creative Commons relies upon voluntary steps to achieve this " "rebuilding. They will lead to a world in which more than voluntary steps are " "possible." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13331 msgid "" "Creative Commons is just one example of voluntary efforts by individuals and " "creators to change the mix of rights that now govern the creative field. The " "project does not compete with copyright; it complements it. Its aim is not " "to defeat the rights of authors, but to make it easier for authors and " "creators to exercise their rights more flexibly and cheaply. That " "difference, we believe, will enable creativity to spread more easily." msgstr "" #. type: Content of: <book><chapter><sect1><title> #: freeculture.xml:13345 msgid "THEM, SOON" msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:13347 msgid "" "We will not reclaim a free culture by individual action alone. It will also " "take important reforms of laws. We have a long way to go before the " "politicians will listen to these ideas and implement these reforms. But " "that also means that we have time to build awareness around the changes that " "we need." msgstr "" #. type: Content of: <book><chapter><sect1><para> #: freeculture.xml:13354 msgid "" "In this chapter, I outline five kinds of changes: four that are general, and " "one that's specific to the most heated battle of the day, music. Each is a " "step, not an end. But any of these steps would carry us a long way to our " "end." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:13361 msgid "1. More Formalities" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13363 msgid "" "If you buy a house, you have to record the sale in a deed. If you buy land " "upon which to build a house, you have to record the purchase in a deed. If " "you buy a car, you get a bill of sale and register the car. If you buy an " "airplane ticket, it has your name on it." msgstr "" #. PAGE BREAK 293 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13370 msgid "" "These are all formalities associated with property. They are requirements " "that we all must bear if we want our property to be protected." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13375 msgid "" "In contrast, under current copyright law, you automatically get a copyright, " "regardless of whether you comply with any formality. You don't have to " "register. You don't even have to mark your content. The default is control, " "and \"formalities\" are banished." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13381 msgid "Why?" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13384 msgid "" "As I suggested in chapter 10, the motivation to abolish formalities was a " "good one. In the world before digital technologies, formalities imposed a " "burden on copyright holders without much benefit. Thus, it was progress when " "the law relaxed the formal requirements that a copyright owner must bear to " "protect and secure his work. Those formalities were getting in the way." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13392 msgid "" "But the Internet changes all this. Formalities today need not be a " "burden. Rather, the world without formalities is the world that burdens " "creativity. Today, there is no simple way to know who owns what, or with " "whom one must deal in order to use or build upon the creative work of " "others. There are no records, there is no system to trace— there is no " "simple way to know how to get permission. Yet given the massive increase in " "the scope of copyright's rule, getting permission is a necessary step for " "any work that builds upon our past. And thus, the lack of formalities forces " "many into silence where they otherwise could speak." msgstr "" #. f1. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:13406 msgid "" "The proposal I am advancing here would apply to American works only. " "Obviously, I believe it would be beneficial for the same idea to be adopted " "by other countries as well." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13404 msgid "" "The law should therefore change this requirement<placeholder " "type=\"footnote\" id=\"0\"/>—but it should not change it by going back " "to the old, broken system. We should require formalities, but we should " "establish a system that will create the incentives to minimize the burden of " "these formalities." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13414 msgid "" "The important formalities are three: marking copyrighted work, registering " "copyrights, and renewing the claim to copyright. Traditionally, the first of " "these three was something the copyright owner did; the second two were " "something the government did. But a revised system of formalities would " "banish the government from the process, except for the sole purpose of " "approving standards developed by others." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><title> #: freeculture.xml:13426 msgid "REGISTRATION AND RENEWAL" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> #: freeculture.xml:13428 msgid "" "Under the old system, a copyright owner had to file a registration with the " "Copyright Office to register or renew a copyright. When filing that " "registration, the copyright owner paid a fee. As with most government " "agencies, the Copyright Office had little incentive to minimize the burden " "of registration; it also had little incentive to minimize the fee. And as " "the Copyright Office is not a main target of government policymaking, the " "office has historically been terribly underfunded. Thus, when people who " "know something about the process hear this idea about formalities, their " "first reaction is panic—nothing could be worse than forcing people to " "deal with the mess that is the Copyright Office." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> #: freeculture.xml:13441 msgid "" "Yet it is always astonishing to me that we, who come from a tradition of " "extraordinary innovation in governmental design, can no longer think " "innovatively about how governmental functions can be designed. Just because " "there is a public purpose to a government role, it doesn't follow that the " "government must actually administer the role. Instead, we should be creating " "incentives for private parties to serve the public, subject to standards " "that the government sets." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> #: freeculture.xml:13450 msgid "" "In the context of registration, one obvious model is the Internet. There " "are at least 32 million Web sites registered around the world. Domain name " "owners for these Web sites have to pay a fee to keep their registration " "alive. In the main top-level domains (.com, .org, .net), there is a central " "registry. The actual registrations are, however, performed by many competing " "registrars. That competition drives the cost of registering down, and more " "importantly, it drives the ease with which registration occurs up." msgstr "" #. PAGE BREAK 295 #. type: Content of: <book><chapter><sect1><sect2><sect3><para> #: freeculture.xml:13460 msgid "" "We should adopt a similar model for the registration and renewal of " "copyrights. The Copyright Office may well serve as the central registry, but " "it should not be in the registrar business. Instead, it should establish a " "database, and a set of standards for registrars. It should approve " "registrars that meet its standards. Those registrars would then compete with " "one another to deliver the cheapest and simplest systems for registering and " "renewing copyrights. That competition would substantially lower the burden " "of this formality—while producing a database of registrations that " "would facilitate the licensing of content." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><title> #: freeculture.xml:13475 msgid "MARKING" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> #: freeculture.xml:13477 msgid "" "It used to be that the failure to include a copyright notice on a creative " "work meant that the copyright was forfeited. That was a harsh punishment for " "failing to comply with a regulatory rule—akin to imposing the death " "penalty for a parking ticket in the world of creative rights. Here again, " "there is no reason that a marking requirement needs to be enforced in this " "way. And more importantly, there is no reason a marking requirement needs to " "be enforced uniformly across all media." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> #: freeculture.xml:13487 msgid "" "The aim of marking is to signal to the public that this work is copyrighted " "and that the author wants to enforce his rights. The mark also makes it easy " "to locate a copyright owner to secure permission to use the work." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> #: freeculture.xml:13493 msgid "" "One of the problems the copyright system confronted early on was that " "different copyrighted works had to be differently marked. It wasn't clear " "how or where a statue was to be marked, or a record, or a film. A new " "marking requirement could solve these problems by recognizing the " "differences in media, and by allowing the system of marking to evolve as " "technologies enable it to. The system could enable a special signal from the " "failure to mark—not the loss of the copyright, but the loss of the " "right to punish someone for failing to get permission first." msgstr "" #. f2. #. type: Content of: <book><chapter><sect1><sect2><sect3><para><footnote><para> #: freeculture.xml:13510 msgid "" "There would be a complication with derivative works that I have not solved " "here. In my view, the law of derivatives creates a more complicated system " "than is justified by the marginal incentive it creates." msgstr "" #. PAGE BREAK 296 #. type: Content of: <book><chapter><sect1><sect2><sect3><para> #: freeculture.xml:13503 msgid "" "Let's start with the last point. If a copyright owner allows his work to be " "published without a copyright notice, the consequence of that failure need " "not be that the copyright is lost. The consequence could instead be that " "anyone has the right to use this work, until the copyright owner complains " "and demonstrates that it is his work and he doesn't give " "permission.<placeholder type=\"footnote\" id=\"0\"/> The meaning of an " "unmarked work would therefore be \"use unless someone complains.\" If " "someone does complain, then the obligation would be to stop using the work " "in any new work from then on though no penalty would attach for existing " "uses. This would create a strong incentive for copyright owners to mark " "their work." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> #: freeculture.xml:13523 msgid "" "That in turn raises the question about how work should best be marked. Here " "again, the system needs to adjust as the technologies evolve. The best way " "to ensure that the system evolves is to limit the Copyright Office's role to " "that of approving standards for marking content that have been crafted " "elsewhere." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> #: freeculture.xml:13530 msgid "" "For example, if a recording industry association devises a method for " "marking CDs, it would propose that to the Copyright Office. The Copyright " "Office would hold a hearing, at which other proposals could be made. The " "Copyright Office would then select the proposal that it judged preferable, " "and it would base that choice solely upon the consideration of which method " "could best be integrated into the registration and renewal system. We would " "not count on the government to innovate; but we would count on the " "government to keep the product of innovation in line with its other " "important functions." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> #: freeculture.xml:13541 msgid "" "Finally, marking content clearly would simplify registration requirements. " "If photographs were marked by author and year, there would be little reason " "not to allow a photographer to reregister, for example, all photographs " "taken in a particular year in one quick step. The aim of the formality is " "not to burden the creator; the system itself should be kept as simple as " "possible." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> #: freeculture.xml:13549 msgid "" "The objective of formalities is to make things clear. The existing system " "does nothing to make things clear. Indeed, it seems designed to make things " "unclear." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><sect3><para> #: freeculture.xml:13554 msgid "" "If formalities such as registration were reinstated, one of the most " "difficult aspects of relying upon the public domain would be removed. It " "would be simple to identify what content is presumptively free; it would be " "simple to identify who controls the rights for a particular kind of content; " "it would be simple to assert those rights, and to renew that assertion at " "the appropriate time." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:13566 msgid "2. Shorter Terms" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13568 msgid "" "The term of copyright has gone from fourteen years to ninety-five years for " "corporate authors, and life of the author plus seventy years for natural " "authors." msgstr "" #. f3. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:13580 msgid "" "\"A Radical Rethink,\" Economist, 366:8308 (25 January 2003): 15, available " "at <ulink url=\"http://free-culture.cc/notes/\">link #74</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13573 msgid "" "In The Future of Ideas, I proposed a seventy-five-year term, granted in " "five-year increments with a requirement of renewal every five years. That " "seemed radical enough at the time. But after we lost Eldred v. Ashcroft, " "the proposals became even more radical. The Economist endorsed a proposal " "for a fourteen-year copyright term.<placeholder type=\"footnote\" id=\"0\"/> " "Others have proposed tying the term to the term for patents." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13587 msgid "" "I agree with those who believe that we need a radical change in copyright's " "term. But whether fourteen years or seventy-five, there are four principles " "that are important to keep in mind about copyright terms." msgstr "" #. (1) #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:13595 msgid "" "Keep it short: The term should be as long as necessary to give incentives to " "create, but no longer. If it were tied to very strong protections for " "authors (so authors were able to reclaim rights from publishers), rights to " "the same work (not derivative works) might be extended further. The key is " "not to tie the work up with legal regulations when it no longer benefits an " "author." msgstr "" #. (2) #. PAGE BREAK 298 #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:13603 msgid "" "Keep it simple: The line between the public domain and protected content " "must be kept clear. Lawyers like the fuzziness of \"fair use,\" and the " "distinction between \"ideas\" and \"expression.\" That kind of law gives " "them lots of work. But our framers had a simpler idea in mind: protected " "versus unprotected. The value of short terms is that there is little need " "to build exceptions into copyright when the term itself is kept short. A " "clear and active \"lawyer-free zone\" makes the complexities of \"fair use\" " "and \"idea/expression\" less necessary to navigate." msgstr "" #. f4. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para><footnote><para> #: freeculture.xml:13623 msgid "" "Department of Veterans Affairs, Veteran's Application for Compensation " "and/or Pension, VA Form 21-526 (OMB Approved No. 2900-0001), available at " "<ulink url=\"http://free-culture.cc/notes/\">link #75</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para><indexterm><primary> #: freeculture.xml:13631 msgid "veterans' pensions" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:13616 msgid "" "Keep it alive: Copyright should have to be renewed. Especially if the " "maximum term is long, the copyright owner should be required to signal " "periodically that he wants the protection continued. This need not be an " "onerous burden, but there is no reason this monopoly protection has to be " "granted for free. On average, it takes ninety minutes for a veteran to apply " "for a pension.<placeholder type=\"footnote\" id=\"0\"/> If we make veterans " "suffer that burden, I don't see why we couldn't require authors to spend ten " "minutes every fifty years to file a single form. <placeholder " "type=\"indexterm\" id=\"1\"/>" msgstr "" #. (4) #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:13635 msgid "" "Keep it prospective: Whatever the term of copyright should be, the clearest " "lesson that economists teach is that a term once given should not be " "extended. It might have been a mistake in 1923 for the law to offer authors " "only a fifty-six-year term. I don't think so, but it's possible. If it was a " "mistake, then the consequence was that we got fewer authors to create in " "1923 than we otherwise would have. But we can't correct that mistake today " "by increasing the term. No matter what we do today, we will not increase the " "number of authors who wrote in 1923. Of course, we can increase the reward " "that those who write now get (or alternatively, increase the copyright " "burden that smothers many works that are today invisible). But increasing " "their reward will not increase their creativity in 1923. What's not done is " "not done, and there's nothing we can do about that now." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13650 msgid "" "These changes together should produce an average copyright term that is much " "shorter than the current term. Until 1976, the average term was just 32.2 " "years. We should be aiming for the same." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13655 msgid "" "No doubt the extremists will call these ideas \"radical.\" (After all, I " "call them \"extremists.\") But again, the term I recommended was longer than " "the term under Richard Nixon. How \"radical\" can it be to ask for a more " "generous copyright law than Richard Nixon presided over?" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:13665 msgid "3. Free Use Vs. Fair Use" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13667 msgid "" "As I observed at the beginning of this book, property law originally granted " "property owners the right to control their property from the ground to the " "heavens. The airplane came along. The scope of property rights quickly " "changed. There was no fuss, no constitutional challenge. It made no sense " "anymore to grant that much control, given the emergence of that new " "technology." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13675 msgid "" "Our Constitution gives Congress the power to give authors \"exclusive " "right\" to \"their writings.\" Congress has given authors an exclusive right " "to \"their writings\" plus any derivative writings (made by others) that are " "sufficiently close to the author's original work. Thus, if I write a book, " "and you base a movie on that book, I have the power to deny you the right to " "release that movie, even though that movie is not \"my writing.\"" msgstr "" #. f5. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:13688 msgid "" "Benjamin Kaplan, An Unhurried View of Copyright (New York: Columbia " "University Press, 1967), 32." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13684 msgid "" "Congress granted the beginnings of this right in 1870, when it expanded the " "exclusive right of copyright to include a right to control translations and " "dramatizations of a work.<placeholder type=\"footnote\" id=\"0\"/> The " "courts have expanded it slowly through judicial interpretation ever " "since. This expansion has been commented upon by one of the law's greatest " "judges, Judge Benjamin Kaplan." msgstr "" #. f6. #. type: Content of: <book><chapter><sect1><sect2><blockquote><para><footnote><para> #: freeculture.xml:13701 msgid "Ibid., 56." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><blockquote><para> #: freeculture.xml:13697 msgid "" "So inured have we become to the extension of the monopoly to a large range " "of so-called derivative works, that we no longer sense the oddity of " "accepting such an enlargement of copyright while yet intoning the " "abracadabra of idea and expression.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13706 msgid "" "I think it's time to recognize that there are airplanes in this field and " "the expansiveness of these rights of derivative use no longer make " "sense. More precisely, they don't make sense for the period of time that a " "copyright runs. And they don't make sense as an amorphous grant. Consider " "each limitation in turn." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13713 msgid "" "Term: If Congress wants to grant a derivative right, then that right should " "be for a much shorter term. It makes sense to protect John Grisham's right " "to sell the movie rights to his latest novel (or at least I'm willing to " "assume it does); but it does not make sense for that right to run for the " "same term as the underlying copyright. The derivative right could be " "important in inducing creativity; it is not important long after the " "creative work is done. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13725 msgid "" "Scope: Likewise should the scope of derivative rights be narrowed. Again, " "there are some cases in which derivative rights are important. Those should " "be specified. But the law should draw clear lines around regulated and " "unregulated uses of copyrighted material. When all \"reuse\" of creative " "material was within the control of businesses, perhaps it made sense to " "require lawyers to negotiate the lines. It no longer makes sense for lawyers " "to negotiate the lines. Think about all the creative possibilities that " "digital technologies enable; now imagine pouring molasses into the " "machines. That's what this general requirement of permission does to the " "creative process. Smothers it." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13737 msgid "" "This was the point that Alben made when describing the making of the Clint " "Eastwood CD. While it makes sense to require negotiation for foreseeable " "derivative rights—turning a book into a movie, or a poem into a " "musical score—it doesn't make sense to require negotiation for the " "unforeseeable. Here, a statutory right would make much more sense." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> #: freeculture.xml:13753 msgid "Goldstein, Paul" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:13751 msgid "" "Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox " "(Stanford: Stanford University Press, 2003), 187–216. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13745 msgid "" "In each of these cases, the law should mark the uses that are protected, and " "the presumption should be that other uses are not protected. This is the " "reverse of the recommendation of my colleague Paul Goldstein.<placeholder " "type=\"footnote\" id=\"0\"/> His view is that the law should be written so " "that expanded protections follow expanded uses." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13759 msgid "" "Goldstein's analysis would make perfect sense if the cost of the legal " "system were small. But as we are currently seeing in the context of the " "Internet, the uncertainty about the scope of protection, and the incentives " "to protect existing architectures of revenue, combined with a strong " "copyright, weaken the process of innovation." msgstr "" #. PAGE BREAK 301 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13766 msgid "" "The law could remedy this problem either by removing protection beyond the " "part explicitly drawn or by granting reuse rights upon certain statutory " "conditions. Either way, the effect would be to free a great deal of culture " "to others to cultivate. And under a statutory rights regime, that reuse " "would earn artists more income." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:13776 msgid "4. Liberate the Music—Again" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13778 msgid "" "The battle that got this whole war going was about music, so it wouldn't be " "fair to end this book without addressing the issue that is, to most people, " "most pressing—music. There is no other policy issue that better " "teaches the lessons of this book than the battles around the sharing of " "music." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13785 msgid "" "The appeal of file-sharing music was the crack cocaine of the Internet's " "growth. It drove demand for access to the Internet more powerfully than any " "other single application. It was the Internet's killer app—possibly in " "two senses of that word. It no doubt was the application that drove demand " "for bandwidth. It may well be the application that drives demand for " "regulations that in the end kill innovation on the network." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13794 msgid "" "The aim of copyright, with respect to content in general and music in " "particular, is to create the incentives for music to be composed, performed, " "and, most importantly, spread. The law does this by giving an exclusive " "right to a composer to control public performances of his work, and to a " "performing artist to control copies of her performance." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13801 msgid "" "File-sharing networks complicate this model by enabling the spread of " "content for which the performer has not been paid. But of course, that's not " "all the file-sharing networks do. As I described in chapter 5, they enable " "four different kinds of sharing:" msgstr "" #. A. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:13809 msgid "" "There are some who are using sharing networks as substitutes for purchasing " "CDs." msgstr "" #. B. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:13814 msgid "" "There are also some who are using sharing networks to sample, on the way to " "purchasing CDs." msgstr "" #. PAGE BREAK 302 #. C. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:13820 msgid "" "There are many who are using file-sharing networks to get access to content " "that is no longer sold but is still under copyright or that would have been " "too cumbersome to buy off the Net." msgstr "" #. D. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:13826 msgid "" "There are many who are using file-sharing networks to get access to content " "that is not copyrighted or to get access that the copyright owner plainly " "endorses." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13832 msgid "" "Any reform of the law needs to keep these different uses in focus. It must " "avoid burdening type D even if it aims to eliminate type A. The eagerness " "with which the law aims to eliminate type A, moreover, should depend upon " "the magnitude of type B. As with VCRs, if the net effect of sharing is " "actually not very harmful, the need for regulation is significantly " "weakened." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13840 msgid "" "As I said in chapter 5, the actual harm caused by sharing is controversial. " "For the purposes of this chapter, however, I assume the harm is real. I " "assume, in other words, that type A sharing is significantly greater than " "type B, and is the dominant use of sharing networks." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13847 msgid "" "Nonetheless, there is a crucial fact about the current technological context " "that we must keep in mind if we are to understand how the law should " "respond." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13852 msgid "" "Today, file sharing is addictive. In ten years, it won't be. It is addictive " "today because it is the easiest way to gain access to a broad range of " "content. It won't be the easiest way to get access to a broad range of " "content in ten years. Today, access to the Internet is cumbersome and " "slow—we in the United States are lucky to have broadband service at " "1.5 MBs, and very rarely do we get service at that speed both up and " "down. Although wireless access is growing, most of us still get access " "across wires. Most only gain access through a machine with a keyboard. The " "idea of the always on, always connected Internet is mainly just an idea." msgstr "" #. PAGE BREAK 303 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13864 msgid "" "But it will become a reality, and that means the way we get access to the " "Internet today is a technology in transition. Policy makers should not make " "policy on the basis of technology in transition. They should make policy on " "the basis of where the technology is going. The question should not be, how " "should the law regulate sharing in this world? The question should be, what " "law will we require when the network becomes the network it is clearly " "becoming? That network is one in which every machine with electricity is " "essentially on the Net; where everywhere you are—except maybe the " "desert or the Rockies—you can instantaneously be connected to the " "Internet. Imagine the Internet as ubiquitous as the best cell-phone service, " "where with the flip of a device, you are connected." msgstr "" #. f8. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:13896 msgid "" "See, for example, \"Music Media Watch,\" The J@pan Inc. Newsletter, 3 April " "2002, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#76</ulink>." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13879 msgid "" "In that world, it will be extremely easy to connect to services that give " "you access to content on the fly—such as Internet radio, content that " "is streamed to the user when the user demands. Here, then, is the critical " "point: When it is extremely easy to connect to services that give access to " "content, it will be easier to connect to services that give you access to " "content than it will be to download and store content on the many devices " "you will have for playing content. It will be easier, in other words, to " "subscribe than it will be to be a database manager, as everyone in the " "download-sharing world of Napster-like technologies essentially is. Content " "services will compete with content sharing, even if the services charge " "money for the content they give access to. Already cell-phone services in " "Japan offer music (for a fee) streamed over cell phones (enhanced with plugs " "for headphones). The Japanese are paying for this content even though " "\"free\" content is available in the form of MP3s across the " "Web.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. PAGE BREAK 304 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13903 msgid "" "This point about the future is meant to suggest a perspective on the " "present: It is emphatically temporary. The \"problem\" with file " "sharing—to the extent there is a real problem—is a problem that " "will increasingly disappear as it becomes easier to connect to the " "Internet. And thus it is an extraordinary mistake for policy makers today " "to be \"solving\" this problem in light of a technology that will be gone " "tomorrow. The question should not be how to regulate the Internet to " "eliminate file sharing (the Net will evolve that problem away). The question " "instead should be how to assure that artists get paid, during this " "transition between twentieth-century models for doing business and " "twenty-first-century technologies." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13919 msgid "" "The answer begins with recognizing that there are different \"problems\" " "here to solve. Let's start with type D content—uncopyrighted content " "or copyrighted content that the artist wants shared. The \"problem\" with " "this content is to make sure that the technology that would enable this kind " "of sharing is not rendered illegal. You can think of it this way: Pay phones " "are used to deliver ransom demands, no doubt. But there are many who need " "to use pay phones who have nothing to do with ransoms. It would be wrong to " "ban pay phones in order to eliminate kidnapping." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13930 msgid "" "Type C content raises a different \"problem.\" This is content that was, at " "one time, published and is no longer available. It may be unavailable " "because the artist is no longer valuable enough for the record label he " "signed with to carry his work. Or it may be unavailable because the work is " "forgotten. Either way, the aim of the law should be to facilitate the access " "to this content, ideally in a way that returns something to the artist." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13939 msgid "" "Again, the model here is the used book store. Once a book goes out of print, " "it may still be available in libraries and used book stores. But libraries " "and used book stores don't pay the copyright owner when someone reads or " "buys an out-of-print book. That makes total sense, of course, since any " "other system would be so burdensome as to eliminate the possibility of used " "book stores' existing. But from the author's perspective, this \"sharing\" " "of his content without his being compensated is less than ideal." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13949 msgid "" "The model of used book stores suggests that the law could simply deem " "out-of-print music fair game. If the publisher does not make copies of the " "music available for sale, then commercial and noncommercial providers would " "be free, under this rule, to \"share\" that content, even though the sharing " "involved making a copy. The copy here would be incidental to the trade; in a " "context where commercial publishing has ended, trading music should be as " "free as trading books." msgstr "" #. PAGE BREAK 305 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13960 msgid "" "Alternatively, the law could create a statutory license that would ensure " "that artists get something from the trade of their work. For example, if the " "law set a low statutory rate for the commercial sharing of content that was " "not offered for sale by a commercial publisher, and if that rate were " "automatically transferred to a trust for the benefit of the artist, then " "businesses could develop around the idea of trading this content, and " "artists would benefit from this trade." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13970 msgid "" "This system would also create an incentive for publishers to keep works " "available commercially. Works that are available commercially would not be " "subject to this license. Thus, publishers could protect the right to charge " "whatever they want for content if they kept the work commercially " "available. But if they don't keep it available, and instead, the computer " "hard disks of fans around the world keep it alive, then any royalty owed for " "such copying should be much less than the amount owed a commercial " "publisher." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13980 msgid "" "The hard case is content of types A and B, and again, this case is hard only " "because the extent of the problem will change over time, as the technologies " "for gaining access to content change. The law's solution should be as " "flexible as the problem is, understanding that we are in the middle of a " "radical transformation in the technology for delivering and accessing " "content." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13988 msgid "" "So here's a solution that will at first seem very strange to both sides in " "this war, but which upon reflection, I suggest, should make some sense." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:13992 msgid "" "Stripped of the rhetoric about the sanctity of property, the basic claim of " "the content industry is this: A new technology (the Internet) has harmed a " "set of rights that secure copyright. If those rights are to be protected, " "then the content industry should be compensated for that harm. Just as the " "technology of tobacco harmed the health of millions of Americans, or the " "technology of asbestos caused grave illness to thousands of miners, so, too, " "has the technology of digital networks harmed the interests of the content " "industry." msgstr "" #. PAGE BREAK 306 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14003 msgid "" "I love the Internet, and so I don't like likening it to tobacco or " "asbestos. But the analogy is a fair one from the perspective of the law. " "And it suggests a fair response: Rather than seeking to destroy the " "Internet, or the p2p technologies that are currently harming content " "providers on the Internet, we should find a relatively simple way to " "compensate those who are harmed." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para><indexterm><primary> #: freeculture.xml:14047 msgid "Fisher, William" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:14014 msgid "" "William Fisher, Digital Music: Problems and Possibilities (last revised: 10 " "October 2000), available at <ulink " "url=\"http://free-culture.cc/notes/\">link #77</ulink>; William Fisher, " "Promises to Keep: Technology, Law, and the Future of Entertainment " "(forthcoming) (Stanford: Stanford University Press, 2004), ch. 6, available " "at <ulink url=\"http://free-culture.cc/notes/\">link #78</ulink>. Professor " "Netanel has proposed a related idea that would exempt noncommercial sharing " "from the reach of copyright and would establish compensation to artists to " "balance any loss. See Neil Weinstock Netanel, \"Impose a Noncommercial Use " "Levy to Allow Free P2P File Sharing,\" available at <ulink " "url=\"http://free-culture.cc/notes/\">link #79</ulink>. For other proposals, " "see Lawrence Lessig, \"Who's Holding Back Broadband?\" Washington Post, 8 " "January 2002, A17; Philip S. Corwin on behalf of Sharman Networks, A Letter " "to Senator Joseph R. Biden, Jr., Chairman of the Senate Foreign Relations " "Committee, 26 February 2002, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #80</ulink>; Serguei Osokine, A " "Quick Case for Intellectual Property Use Fee (IPUF), 3 March 2002, available " "at <ulink url=\"http://free-culture.cc/notes/\">link #81</ulink>; Jefferson " "Graham, \"Kazaa, Verizon Propose to Pay Artists Directly,\" USA Today, 13 " "May 2002, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#82</ulink>; Steven M. Cherry, \"Getting Copyright Right,\" IEEE Spectrum " "Online, 1 July 2002, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #83</ulink>; Declan McCullagh, " "\"Verizon's Copyright Campaign,\" CNET News.com, 27 August 2002, available " "at <ulink url=\"http://free-culture.cc/notes/\">link #84</ulink>. Fisher's " "proposal is very similar to Richard Stallman's proposal for DAT. Unlike " "Fisher's, Stallman's proposal would not pay artists directly proportionally, " "though more popular artists would get more than the less popular. As is " "typical with Stallman, his proposal predates the current debate by about a " "decade. See <ulink url=\"http://free-culture.cc/notes/\">link #85</ulink>. " "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14011 msgid "" "The idea would be a modification of a proposal that has been floated by " "Harvard law professor William Fisher.<placeholder type=\"footnote\" " "id=\"0\"/> Fisher suggests a very clever way around the current impasse of " "the Internet. Under his plan, all content capable of digital transmission " "would (1) be marked with a digital watermark (don't worry about how easy it " "is to evade these marks; as you'll see, there's no incentive to evade " "them). Once the content is marked, then entrepreneurs would develop (2) " "systems to monitor how many items of each content were distributed. On the " "basis of those numbers, then (3) artists would be compensated. The " "compensation would be paid for by (4) an appropriate tax." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14060 msgid "" "Fisher's proposal is careful and comprehensive. It raises a million " "questions, most of which he answers well in his upcoming book, Promises to " "Keep. The modification that I would make is relatively simple: Fisher " "imagines his proposal replacing the existing copyright system. I imagine it " "complementing the existing system. The aim of the proposal would be to " "facilitate compensation to the extent that harm could be shown. This " "compensation would be temporary, aimed at facilitating a transition between " "regimes. And it would require renewal after a period of years. If it " "continues to make sense to facilitate free exchange of content, supported " "through a taxation system, then it can be continued. If this form of " "protection is no longer necessary, then the system could lapse into the old " "system of controlling access." msgstr "" #. PAGE BREAK 307 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14075 msgid "" "Fisher would balk at the idea of allowing the system to lapse. His aim is " "not just to ensure that artists are paid, but also to ensure that the system " "supports the widest range of \"semiotic democracy\" possible. But the aims " "of semiotic democracy would be satisfied if the other changes I described " "were accomplished—in particular, the limits on derivative uses. A " "system that simply charges for access would not greatly burden semiotic " "democracy if there were few limitations on what one was allowed to do with " "the content itself." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14088 msgid "" "No doubt it would be difficult to calculate the proper measure of \"harm\" " "to an industry. But the difficulty of making that calculation would be " "outweighed by the benefit of facilitating innovation. This background system " "to compensate would also not need to interfere with innovative proposals " "such as Apple's MusicStore. As experts predicted when Apple launched the " "MusicStore, it could beat \"free\" by being easier than free is. This has " "proven correct: Apple has sold millions of songs at even the very high price " "of 99 cents a song. (At 99 cents, the cost is the equivalent of a per-song " "CD price, though the labels have none of the costs of a CD to pay.) Apple's " "move was countered by Real Networks, offering music at just 79 cents a " "song. And no doubt there will be a great deal of competition to offer and " "sell music on-line." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14103 msgid "" "This competition has already occurred against the background of \"free\" " "music from p2p systems. As the sellers of cable television have known for " "thirty years, and the sellers of bottled water for much more than that, " "there is nothing impossible at all about \"competing with free.\" Indeed, if " "anything, the competition spurs the competitors to offer new and better " "products. This is precisely what the competitive market was to be " "about. Thus in Singapore, though piracy is rampant, movie theaters are often " "luxurious—with \"first class\" seats, and meals served while you watch " "a movie—as they struggle and succeed in finding ways to compete with " "\"free.\"" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14115 msgid "" "This regime of competition, with a backstop to assure that artists don't " "lose, would facilitate a great deal of innovation in the delivery of " "content. That competition would continue to shrink type A sharing. It would " "inspire an extraordinary range of new innovators—ones who would have a " "right to the content, and would no longer fear the uncertain and " "barbarically severe punishments of the law." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14124 msgid "In summary, then, my proposal is this:" msgstr "" #. PAGE BREAK 308 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14129 msgid "" "The Internet is in transition. We should not be regulating a technology in " "transition. We should instead be regulating to minimize the harm to " "interests affected by this technological change, while enabling, and " "encouraging, the most efficient technology we can create." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14136 msgid "We can minimize that harm while maximizing the benefit to innovation by" msgstr "" #. 1. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:14142 msgid "guaranteeing the right to engage in type D sharing;" msgstr "" #. 2. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:14146 msgid "" "permitting noncommercial type C sharing without liability, and commercial " "type C sharing at a low and fixed rate set by statute;" msgstr "" #. 3. #. type: Content of: <book><chapter><sect1><sect2><orderedlist><listitem><para> #: freeculture.xml:14152 msgid "" "while in this transition, taxing and compensating for type A sharing, to the " "extent actual harm is demonstrated." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14157 msgid "" "But what if \"piracy\" doesn't disappear? What if there is a competitive " "market providing content at a low cost, but a significant number of " "consumers continue to \"take\" content for nothing? Should the law do " "something then?" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14163 msgid "" "Yes, it should. But, again, what it should do depends upon how the facts " "develop. These changes may not eliminate type A sharing. But the real issue " "is not whether it eliminates sharing in the abstract. The real issue is its " "effect on the market. Is it better (a) to have a technology that is 95 " "percent secure and produces a market of size x, or (b) to have a technology " "that is 50 percent secure but produces a market of five times x? Less secure " "might produce more unauthorized sharing, but it is likely to also produce a " "much bigger market in authorized sharing. The most important thing is to " "assure artists' compensation without breaking the Internet. Once that's " "assured, then it may well be appropriate to find ways to track down the " "petty pirates." msgstr "" #. PAGE BREAK 309 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14177 msgid "" "But we're a long way away from whittling the problem down to this subset of " "type A sharers. And our focus until we're there should not be on finding " "ways to break the Internet. Our focus until we're there should be on how to " "make sure the artists are paid, while protecting the space for innovation " "and creativity that the Internet is." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><title> #: freeculture.xml:14188 msgid "5. Fire Lots of Lawyers" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14190 msgid "" "I'm a lawyer. I make lawyers for a living. I believe in the law. I believe " "in the law of copyright. Indeed, I have devoted my life to working in law, " "not because there are big bucks at the end but because there are ideals at " "the end that I would love to live." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14196 msgid "" "Yet much of this book has been a criticism of lawyers, or the role lawyers " "have played in this debate. The law speaks to ideals, but it is my view that " "our profession has become too attuned to the client. And in a world where " "the rich clients have one strong view, the unwillingness of the profession " "to question or counter that one strong view queers the law." msgstr "" #. f10. #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:14213 msgid "" "Lawrence Lessig, \"Copyright's First Amendment\" (Melville B. Nimmer " "Memorial Lecture), UCLA Law Review 48 (2001): 1057, 1069–70." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14204 msgid "" "The evidence of this bending is compelling. I'm attacked as a \"radical\" by " "many within the profession, yet the positions that I am advocating are " "precisely the positions of some of the most moderate and significant figures " "in the history of this branch of the law. Many, for example, thought crazy " "the challenge that we brought to the Copyright Term Extension Act. Yet just " "thirty years ago, the dominant scholar and practitioner in the field of " "copyright, Melville Nimmer, thought it obvious.<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14219 msgid "" "However, my criticism of the role that lawyers have played in this debate is " "not just about a professional bias. It is more importantly about our failure " "to actually reckon the costs of the law." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para><footnote><para> #: freeculture.xml:14229 msgid "" "A good example is the work of Professor Stan Liebowitz. Liebowitz is to be " "commended for his careful review of data about infringement, leading him to " "question his own publicly stated position—twice. He initially " "predicted that downloading would substantially harm the industry. He then " "revised his view in light of the data, and he has since revised his view " "again. Compare Stan J. Liebowitz, Rethinking the Network Economy: The True " "Forces That Drive the Digital Marketplace (New York: Amacom, 2002), " "(reviewing his original view but expressing skepticism) with Stan J. " "Liebowitz, \"Will MP3s Annihilate the Record Industry?\" working paper, June " "2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#86</ulink>. Liebowitz's careful analysis is extremely valuable in " "estimating the effect of file-sharing technology. In my view, however, he " "underestimates the costs of the legal system. See, for example, Rethinking, " "174–76. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14224 msgid "" "Economists are supposed to be good at reckoning costs and benefits. But " "more often than not, economists, with no clue about how the legal system " "actually functions, simply assume that the transaction costs of the legal " "system are slight.<placeholder type=\"footnote\" id=\"0\"/> They see a " "system that has been around for hundreds of years, and they assume it works " "the way their elementary school civics class taught them it works." msgstr "" #. PAGE BREAK 310 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14253 msgid "" "But the legal system doesn't work. Or more accurately, it doesn't work for " "anyone except those with the most resources. Not because the system is " "corrupt. I don't think our legal system (at the federal level, at least) is " "at all corrupt. I mean simply because the costs of our legal system are so " "astonishingly high that justice can practically never be done." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14261 msgid "" "These costs distort free culture in many ways. A lawyer's time is billed at " "the largest firms at more than $400 per hour. How much time should such a " "lawyer spend reading cases carefully, or researching obscure strands of " "authority? The answer is the increasing reality: very little. The law " "depended upon the careful articulation and development of doctrine, but the " "careful articulation and development of legal doctrine depends upon careful " "work. Yet that careful work costs too much, except in the most high-profile " "and costly cases." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14271 msgid "" "The costliness and clumsiness and randomness of this system mock our " "tradition. And lawyers, as well as academics, should consider it their duty " "to change the way the law works—or better, to change the law so that " "it works. It is wrong that the system works well only for the top 1 percent " "of the clients. It could be made radically more efficient, and inexpensive, " "and hence radically more just." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14279 msgid "" "But until that reform is complete, we as a society should keep the law away " "from areas that we know it will only harm. And that is precisely what the " "law will too often do if too much of our culture is left to its review." msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14285 msgid "" "Think about the amazing things your kid could do or make with digital " "technology—the film, the music, the Web page, the blog. Or think about " "the amazing things your community could facilitate with digital " "technology—a wiki, a barn raising, activism to change something. " "Think about all those creative things, and then imagine cold molasses poured " "onto the machines. This is what any regime that requires permission " "produces. Again, this is the reality of Brezhnev's Russia." msgstr "" #. PAGE BREAK 311 #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14294 msgid "" "The law should regulate in certain areas of culture—but it should " "regulate culture only where that regulation does good. Yet lawyers rarely " "test their power, or the power they promote, against this simple pragmatic " "question: \"Will it do good?\" When challenged about the expanding reach of " "the law, the lawyer answers, \"Why not?\"" msgstr "" #. type: Content of: <book><chapter><sect1><sect2><para> #: freeculture.xml:14303 msgid "" "We should ask, \"Why?\" Show me why your regulation of culture is " "needed. Show me how it does good. And until you can show me both, keep your " "lawyers away." msgstr "" #. type: Content of: <book><chapter><title> #: freeculture.xml:14312 msgid "NOTES" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:14314 msgid "" "Throughout this text, there are references to links on the World Wide " "Web. As anyone who has tried to use the Web knows, these links can be highly " "unstable. I have tried to remedy the instability by redirecting readers to " "the original source through the Web site associated with this book. For each " "link below, you can go to http://free-culture.cc/notes and locate the " "original source by clicking on the number after the # sign. If the original " "link remains alive, you will be redirected to that link. If the original " "link has disappeared, you will be redirected to an appropriate reference for " "the material." msgstr "" #. type: Content of: <book><chapter><title> #: freeculture.xml:14329 msgid "ACKNOWLEDGMENTS" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:14331 msgid "" "This book is the product of a long and as yet unsuccessful struggle that " "began when I read of Eric Eldred's war to keep books free. Eldred's work " "helped launch a movement, the free culture movement, and it is to him that " "this book is dedicated." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:14337 msgid "" "I received guidance in various places from friends and academics, including " "Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner, Mark Rose, and " "Kathleen Sullivan. And I received correction and guidance from many amazing " "students at Stanford Law School and Stanford University. They included " "Andrew B. Coan, John Eden, James P. Fellers, Christopher Guzelian, Erica " "Goldberg, Robert Hallman, Andrew Harris, Matthew Kahn, Brian Link, Ohad " "Mayblum, Alina Ng, and Erica Platt. I am particularly grateful to Catherine " "Crump and Harry Surden, who helped direct their research, and to Laura " "Lynch, who brilliantly managed the army that they assembled, and provided " "her own critical eye on much of this." msgstr "" #. PAGE BREAK 337 #. type: Content of: <book><chapter><para> #: freeculture.xml:14350 msgid "" "Yuko Noguchi helped me to understand the laws of Japan as well as its " "culture. I am thankful to her, and to the many in Japan who helped me " "prepare this book: Joi Ito, Takayuki Matsutani, Naoto Misaki, Michihiro " "Sasaki, Hiromichi Tanaka, Hiroo Yamagata, and Yoshihiro Yonezawa. I am " "thankful as well as to Professor Nobuhiro Nakayama, and the Tokyo University " "Business Law Center, for giving me the chance to spend time in Japan, and to " "Tadashi Shiraishi and Kiyokazu Yamagami for their generous help while I was " "there." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:14361 msgid "" "These are the traditional sorts of help that academics regularly draw " "upon. But in addition to them, the Internet has made it possible to receive " "advice and correction from many whom I have never even met. Among those who " "have responded with extremely helpful advice to requests on my blog about " "the book are Dr. Mohammad Al-Ubaydli, David Gerstein, and Peter DiMauro, as " "well as a long list of those who had specific ideas about ways to develop my " "argument. They included Richard Bondi, Steven Cherry, David Coe, Nik " "Cubrilovic, Bob Devine, Charles Eicher, Thomas Guida, Elihu M. Gerson, " "Jeremy Hunsinger, Vaughn Iverson, John Karabaic, Jeff Keltner, James " "Lindenschmidt, K. L. Mann, Mark Manning, Nora McCauley, Jeffrey McHugh, Evan " "McMullen, Fred Norton, John Pormann, Pedro A. D. Rezende, Shabbir Safdar, " "Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker, Chris Smith, " "Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt Wasserman, Miljenko " "Williams, \"Wink,\" Roger Wood, \"Ximmbo da Jazz,\" and Richard Yanco. (I " "apologize if I have missed anyone; with computers come glitches, and a crash " "of my e-mail system meant I lost a bunch of great replies.)" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:14381 msgid "" "Richard Stallman and Michael Carroll each read the whole book in draft, and " "each provided extremely helpful correction and advice. Michael helped me to " "see more clearly the significance of the regulation of derivitive works. And " "Richard corrected an embarrassingly large number of errors. While my work is " "in part inspired by Stallman's, he does not agree with me in important " "places throughout this book." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:14390 msgid "" "Finally, and forever, I am thankful to Bettina, who has always insisted that " "there would be unending happiness away from these battles, and who has " "always been right. This slow learner is, as ever, grateful for her perpetual " "patience and love." msgstr ""