#: freeculture.xml:17 cover-text.xml:14 msgid "Free Culture" msgstr "" #. type: Content of: <book><bookinfo> #: freeculture.xml:19 msgid "<abbrev>\"freeculture\"</abbrev>" msgstr "" #. type: Content of: <chapter><para> #: freeculture.xml:21 cover-text.xml:23 msgid "" "How big media uses technology and the law to lock down culture and control " "creativity" msgstr "" #. type: Content of: <book><bookinfo> #: freeculture.xml:24 msgid "<pubdate>2015-10-17</pubdate> <edition>1</edition>" msgstr "" #. type: Content of: <book><bookinfo><releaseinfo> #: freeculture.xml:28 msgid "Version 2004-02-10" msgstr "" #. type: Content of: <book><bookinfo><authorgroup><author><firstname> #: freeculture.xml:32 msgid "Lawrence" msgstr "" #. type: Content of: <book><bookinfo><authorgroup><author><surname> #: freeculture.xml:33 msgid "Lessig" msgstr "" #. type: Content of: <book><bookinfo><subjectset><subject><subjectterm> #: freeculture.xml:56 msgid "Intellectual property—United States." msgstr "" #. type: Content of: <book><bookinfo><subjectset><subject><subjectterm> #: freeculture.xml:59 msgid "Mass media—United States." msgstr "" #. type: Content of: <book><bookinfo><subjectset><subject><subjectterm> #: freeculture.xml:62 msgid "Technological innovations—United States." msgstr "" #. type: Content of: <book><bookinfo><subjectset><subject><subjectterm> #: freeculture.xml:65 msgid "Art—United States." msgstr "" #. type: Content of: <book><bookinfo><publisher><address> #: freeculture.xml:72 #, no-wrap msgid "<city>Oslo</city>" msgstr "" #. type: Content of: <book><bookinfo> #: freeculture.xml:70 msgid "" "<publisher> <publishername>Petter Reinholdtsen</publishername> <placeholder " "type=\"address\" id=\"0\"/> </publisher> <copyright> <year>2004</year> " "<holder>Lawrence Lessig</holder> </copyright>" msgstr "" #. type: Content of: <book><bookinfo><legalnotice><para><inlinemediaobject> #: freeculture.xml:82 msgid "" "<imageobject> <imagedata fileref=\"images/cc.png\" contentdepth=\"3em\" " "width=\"100%\" align=\"center\"/> </imageobject> <imageobject> <imagedata " "fileref=\"images/cc.svg\" contentdepth=\"3em\" width=\"100%\" " "align=\"center\"/> </imageobject>" msgstr "" #. type: Content of: <book><bookinfo><legalnotice><para><inlinemediaobject><textobject><phrase> #: freeculture.xml:89 msgid "Creative Commons, Some rights reserved" msgstr "" #. type: Content of: <book><bookinfo><legalnotice><para> #: freeculture.xml:81 msgid "<placeholder type=\"inlinemediaobject\" id=\"0\"/>" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:95 freeculture.xml:15881 msgid "" "This book 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 visit <ulink " "url=\"http://creativecommons.org/licenses/by-nc/1.0/\"/>." msgstr "" #. type: Content of: <book><bookinfo><abstract><title> #: freeculture.xml:103 msgid "About the author" msgstr "" #. type: Content of: <book><bookinfo><abstract><para> #: freeculture.xml:105 msgid "" "Lawrence Lessig (<ulink " "url=\"http://www.lessig.org\">http://www.lessig.org</ulink>), professor of " "law and a Roy L. Furman Professor of Law and Leadership at Harvard Law " "School, is founder of the Stanford Center for Internet and Society and is " "chairman of the Creative Commons (<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 <quote>e.biz " "25,</quote> and named one of Scientific American's <quote>50 " "visionaries.</quote> 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 "" #. testing different ways to tag the cover page #. type: Content of: <book><bookinfo><mediaobject> #: freeculture.xml:126 msgid "" "<imageobject remap=\"lrg\" role=\"front-large\"> <imagedata " "fileref=\"images/cover-front-72dpi.png\" format=\"PNG\" width=\"444\" /> " "</imageobject> <imageobject remap=\"s\" role=\"front\"> <imagedata " "fileref=\"images/cover-front-10dpi.png\" format=\"PNG\" width=\"444\" /> " "</imageobject> <imageobject remap=\"xs\" role=\"front-small\"> <imagedata " "fileref=\"images/cover-front-10dpi.png\" format=\"PNG\" width=\"444\" /> " "</imageobject> <imageobject remap=\"cs\" role=\"thumbnail\"> <imagedata " "fileref=\"images/cover-front-10dpi.png\" format=\"PNG\" width=\"444\" /> " "</imageobject>" msgstr "" #. LCCN from #. http://catalog.loc.gov/cgi-bin/Pwebrecon.cgi?v3=1&DB=local&CMD=010a+2003063276&CNT=10+records+per+page #. #. type: Content of: <book><bookinfo> #: freeculture.xml:124 msgid "" " <placeholder type=\"mediaobject\" id=\"0\"/> <biblioid " "class=\"isbn\">978-82-690182-0-2</biblioid> <biblioid " "class=\"libraryofcongress\">2003063276</biblioid> <biblioid " "class=\"uri\">http://free-culture.cc/</biblioid>" msgstr "" #. type: Content of: <book><dedication><title> #: freeculture.xml:153 msgid "Also by Lawrence Lessig" msgstr "" #. type: Content of: <book><dedication><itemizedlist><listitem><para> #: freeculture.xml:159 msgid "The USA is lesterland: The nature of congressional corruption (2014)" msgstr "" #. type: Content of: <book><dedication><itemizedlist><listitem><para> #: freeculture.xml:162 msgid "Republic, lost: How money corrupts Congress - and a plan to stop it (2011)" msgstr "" #. type: Content of: <book><dedication><itemizedlist><listitem><para> #: freeculture.xml:165 msgid "Remix: Making art and commerce thrive in the hybrid economy (2008)" msgstr "" #. type: Content of: <book><dedication><itemizedlist><listitem><para> #: freeculture.xml:168 msgid "Code: Version 2.0 (2006)" msgstr "" #. type: Content of: <book><dedication><itemizedlist><listitem><para> #: freeculture.xml:171 msgid "The Future of Ideas: The Fate of the Commons in a Connected World (2001)" msgstr "" #. type: Content of: <book><dedication><itemizedlist><listitem><para> #: freeculture.xml:174 msgid "Code: And Other Laws of Cyberspace (1999)" msgstr "" #. type: Content of: <book><dedication><para> #: freeculture.xml:187 msgid "" "To Eric Eldred — whose work first drew me to this cause, and for whom " "it continues still." msgstr "" #. type: Content of: <book><lot><title> #: freeculture.xml:197 msgid "List of figures" msgstr "" #. type: Content of: <book><preface><title> #: freeculture.xml:259 msgid "Preface" msgstr "" #. type: Content of: <book><preface><indexterm><primary> #: freeculture.xml:260 msgid "Pogue, David" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:261 freeculture.xml:6524 freeculture.xml:6655 freeculture.xml:6719 msgid "Code (Lessig)" msgstr "" #. type: Content of: <book><preface><para> #: freeculture.xml:263 msgid "" "<emphasis role=\"bold\">At the end</emphasis> of his review of my first " "book, <citetitle>Code: And Other Laws of Cyberspace</citetitle>, 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:274 msgid "" "David Pogue, <quote>Don't Just Chat, Do Something,</quote> <citetitle>New " "York Times</citetitle>, 30 January 2000." msgstr "" #. type: Content of: <book><preface><blockquote><para> #: freeculture.xml:270 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:279 msgid "" "Pogue was skeptical of the core argument of the book—that software, or " "<quote>code,</quote> functioned as a kind of law—and his review " "suggested the happy thought that if life in cyberspace got bad, we could " "always <quote>drizzle, drazzle, druzzle, drome</quote>-like simply flip a " "switch and be back home. Turn off the modem, unplug the computer, and any " "troubles that exist in <emphasis>that</emphasis> space wouldn't " "<quote>affect</quote> us anymore." msgstr "" #. PAGE BREAK 12 #. type: Content of: <book><preface><para> #: freeculture.xml:288 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: <citetitle>Free " "Culture</citetitle> 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 <quote>people who aren't " "online.</quote> There is no switch that will insulate us from the Internet's " "effect." msgstr "" #. type: Content of: <book><preface><para> #: freeculture.xml:299 msgid "" "But unlike <citetitle>Code</citetitle>, 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:311 msgid "" "Richard M. Stallman, <citetitle>Free Software, Free Societies</citetitle> 57 " "(Joshua Gay, ed. 2002)." msgstr "" #. type: Content of: <book><preface><para> #: freeculture.xml:306 msgid "" "That tradition is the way our culture gets made. As I explain in the pages " "that follow, we come from a tradition of <quote>free " "culture</quote>—not <quote>free</quote> as in <quote>free beer</quote> " "(to borrow a phrase from the founder of the free software " "movement<placeholder type=\"footnote\" id=\"0\"/>), but <quote>free</quote> " "as in <quote>free speech,</quote> <quote>free markets,</quote> <quote>free " "trade,</quote> <quote>free enterprise,</quote> <quote>free will,</quote> and " "<quote>free elections.</quote> 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 <emphasis>as free as " "possible</emphasis> 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 <quote>permission " "culture</quote>—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:326 msgid "" "If we understood this change, I believe we would resist it. Not " "<quote>we</quote> on the Left or <quote>you</quote> 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:334 freeculture.xml:989 msgid "power, concentration of" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:335 freeculture.xml:13954 msgid "CodePink Women in Peace" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:336 freeculture.xml:357 freeculture.xml:13955 msgid "Safire, William" msgstr "" #. type: Content of: <book><preface><indexterm><primary> #: freeculture.xml:337 msgid "Stevens, Ted" msgstr "" #. type: Content of: <book><preface><para> #: freeculture.xml:339 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 <quote>uncomfortably alongside CodePink Women for Peace and the " "National Rifle Association, between liberal Olympia Snowe and conservative " "Ted Stevens,</quote> he formulated perhaps most simply just what was at " "stake: the concentration of power. And as he asked," msgstr "" #. type: Content of: <book><preface><blockquote><para><footnote><para> #: freeculture.xml:355 msgid "" "William Safire, <quote>The Great Media Gulp,</quote> <citetitle>New York " "Times</citetitle>, 22 May 2003. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><preface><blockquote><para> #: freeculture.xml:351 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:362 msgid "" "This idea is an element of the argument of <citetitle>Free " "Culture</citetitle>, 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." msgstr "" #. type: Content of: <book><preface><para> #: freeculture.xml:373 msgid "" "<emphasis role=\"strong\">The inspiration</emphasis> 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 <citetitle>Free Software, Free Society</citetitle>, " "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 " "<quote>merely</quote> derivative." msgstr "" #. PAGE BREAK 14 #. type: Content of: <book><preface><para> #: freeculture.xml:382 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:400 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:415 msgid "Introduction" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:416 freeculture.xml:519 freeculture.xml:978 msgid "Wright brothers" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:418 msgid "" "<emphasis role=\"strong\">On December 17</emphasis>, 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><indexterm><primary> #: freeculture.xml:425 msgid "air traffic, land ownership vs." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:426 freeculture.xml:14986 msgid "land ownership, air traffic and" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:427 freeculture.xml:4693 freeculture.xml:13856 freeculture.xml:14987 msgid "property rights" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:427 freeculture.xml:14987 msgid "air traffic vs." msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:433 msgid "" "St. George Tucker, <citetitle>Blackstone's Commentaries</citetitle> 3 (South " "Hackensack, N.J.: Rothman Reprints, 1969), 18." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:429 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 <quote>an indefinite extent, upwards.</quote><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:443 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:451 freeculture.xml:464 freeculture.xml:497 freeculture.xml:517 freeculture.xml:703 freeculture.xml:831 freeculture.xml:958 freeculture.xml:976 freeculture.xml:1024 freeculture.xml:9642 freeculture.xml:13271 freeculture.xml:14058 msgid "Causby, Thomas Lee" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:452 freeculture.xml:465 freeculture.xml:498 freeculture.xml:518 freeculture.xml:704 freeculture.xml:832 freeculture.xml:959 freeculture.xml:977 freeculture.xml:1025 freeculture.xml:9643 freeculture.xml:13272 freeculture.xml:14059 msgid "Causby, Tinie" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:454 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 <quote>an indefinite extent, upwards,</quote> " "then the government was trespassing on their property, and the Causbys " "wanted it to stop." msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:466 msgid "Douglas, William O." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:467 freeculture.xml:4581 freeculture.xml:5184 freeculture.xml:8955 freeculture.xml:12299 freeculture.xml:12300 freeculture.xml:14370 msgid "Supreme Court, U.S." msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:467 msgid "on airspace vs. land rights" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:469 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 " "<quote>taking</quote> of property without compensation. The Court " "acknowledged that <quote>it is ancient doctrine that common law ownership of " "the land extended to the periphery of the universe.</quote> 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:489 msgid "" "United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find that " "there could be a <quote>taking</quote> 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, <quote>(Intellectual) " "Property and Sovereignty: Notes Toward a Cultural Geography of " "Authorship,</quote> <citetitle>Stanford Law Review</citetitle> 48 (1996): " "1293, 1333. See also Paul Goldstein, <citetitle>Real Property</citetitle> " "(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:480 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:503 msgid "<quote>Common sense revolts at the idea.</quote>" msgstr "" #. PAGE BREAK 18 #. type: Content of: <book><chapter><para> #: freeculture.xml:507 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: <quote>Common sense revolts " "at the idea.</quote> 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:521 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 <quote>what seemed reasonable</quote> 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 <quote>obvious</quote> to " "everyone else—the power of <quote>common sense</quote>—would " "prevail. Their <quote>private interest</quote> would not be allowed to " "defeat an obvious public gain." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:542 freeculture.xml:9650 freeculture.xml:10357 msgid "Armstrong, Edwin Howard" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:543 msgid "Bell, Alexander Graham" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:544 msgid "Edison, Thomas" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:545 msgid "Faraday, Michael" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:546 freeculture.xml:3373 freeculture.xml:4316 freeculture.xml:6874 freeculture.xml:8667 freeculture.xml:10261 freeculture.xml:10309 msgid "radio" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:546 freeculture.xml:6874 msgid "FM spectrum of" msgstr "" #. PAGE BREAK 19 #. type: Content of: <book><chapter><para> #: freeculture.xml:548 msgid "" "<emphasis role='strong'>Edwin Howard Armstrong</emphasis> 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." 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: <quote>This is amateur station W2AG at Yonkers, New " "York, operating on frequency modulation at two and a half meters.</quote>" 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, <citetitle>Man of High Fidelity: Edwin Howard " "Armstrong</citetitle> (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 <quote>music box.</quote><placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:598 freeculture.xml:6877 freeculture.xml:14122 msgid "RCA" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:599 freeculture.xml:2482 freeculture.xml:2500 freeculture.xml:2534 freeculture.xml:2536 msgid "media" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:599 freeculture.xml:2536 msgid "ownership concentration in" msgstr "" #. PAGE BREAK 20 #. type: Content of: <book><chapter><para> #: freeculture.xml:601 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><indexterm><primary> #: freeculture.xml:609 freeculture.xml:631 msgid "Sarnoff, David" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:611 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 <quote>radio.</quote> But when Armstrong demonstrated his invention, " "Sarnoff was not pleased." msgstr "" #. type: Content of: <book><chapter><blockquote><para><footnote><para> #: freeculture.xml:622 msgid "" "See <quote>Saints: The Heroes and Geniuses of the Electronic Era,</quote> " "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:619 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><part><chapter><section><indexterm><primary> #: freeculture.xml:630 freeculture.xml:6873 msgid "FM radio" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:633 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," msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:638 msgid "Lessing, Lawrence" msgstr "" #. type: Content of: <book><chapter><blockquote><para><footnote><para> #: freeculture.xml:646 msgid "Lessing, 226." msgstr "" #. type: Content of: <book><chapter><blockquote><para> #: freeculture.xml:641 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><indexterm><primary> #: freeculture.xml:650 msgid "FCC" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:650 msgid "on FM radio" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:652 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:671 msgid "Lessing, 256." msgstr "" #. type: Content of: <book><chapter><blockquote><para> #: freeculture.xml:667 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:676 msgid "AT&T" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:678 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:690 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:706 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><section><section><section><indexterm><primary> #: freeculture.xml:723 freeculture.xml:1097 freeculture.xml:2315 freeculture.xml:2352 freeculture.xml:2365 freeculture.xml:2449 freeculture.xml:2483 freeculture.xml:2509 freeculture.xml:2760 freeculture.xml:4186 freeculture.xml:6757 freeculture.xml:7620 freeculture.xml:7688 freeculture.xml:7976 freeculture.xml:10260 freeculture.xml:13587 freeculture.xml:14153 freeculture.xml:14154 freeculture.xml:14228 freeculture.xml:14759 msgid "Internet" msgstr "" #. type: Content of: <book><chapter><section><indexterm><secondary> #: freeculture.xml:723 freeculture.xml:4733 freeculture.xml:13587 freeculture.xml:14153 msgid "development of" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:731 msgid "" "Amanda Lenhart, <quote>The Ever-Shifting Internet Population: A New Look at " "Internet Access and the Digital Divide,</quote> 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:725 msgid "" "<emphasis role=\"strong\">There's no</emphasis> 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:740 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:751 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 "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:760 msgid "Barlow, Joel" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:761 freeculture.xml:762 msgid "culture" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:761 freeculture.xml:810 freeculture.xml:1701 freeculture.xml:5291 freeculture.xml:6526 freeculture.xml:14193 msgid "free culture" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:762 msgid "commercial vs. noncommercial" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:763 msgid "Webster, Noah" msgstr "" #. PAGE BREAK 23 #. type: Content of: <book><chapter><para> #: freeculture.xml:765 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 " "<quote>commercial culture</quote> I mean that part of our culture that is " "produced and sold or produced to be sold. By <quote>noncommercial " "culture</quote> 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 " "<quote>Reader,</quote> or Joel Barlow his poetry, that was commercial " "culture." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:777 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 " "<quote>free.</quote> 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><part><chapter><section><indexterm><primary> #: freeculture.xml:787 freeculture.xml:2856 freeculture.xml:2857 freeculture.xml:2884 freeculture.xml:2885 freeculture.xml:2886 freeculture.xml:4261 freeculture.xml:7851 freeculture.xml:9711 freeculture.xml:9712 freeculture.xml:9989 freeculture.xml:9990 freeculture.xml:9991 freeculture.xml:10034 msgid "copyright infringement lawsuits" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:787 msgid "commercial creativity as primary purpose of" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:803 freeculture.xml:1942 freeculture.xml:1955 msgid "Brandeis, Louis D." msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:795 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, <quote>The Right to Privacy,</quote> <citetitle>Harvard " "Law Review</citetitle> 4 (1890): 193, 198–200. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:789 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><indexterm><secondary> #: freeculture.xml:810 msgid "permission culture vs." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:811 freeculture.xml:10105 msgid "permission culture" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:811 msgid "free culture vs." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:817 freeculture.xml:10244 msgid "Litman, Jessica" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:815 msgid "" "See Jessica Litman, <citetitle>Digital Copyright</citetitle> (New York: " "Prometheus Books, 2001), ch. 13. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:813 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><indexterm><primary> #: freeculture.xml:833 msgid "protection of artists vs. business interests" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:835 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:849 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:868 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><part><chapter><indexterm><primary> #: freeculture.xml:877 freeculture.xml:4400 freeculture.xml:6298 freeculture.xml:7575 freeculture.xml:11227 freeculture.xml:13160 msgid "Valenti, Jack" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:877 freeculture.xml:7575 msgid "on creative property rights" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:887 msgid "" "Amy Harmon, <quote>Black Hawk Download: Moving Beyond Music, Pirates Use New " "Tools to Turn the Net into an Illicit Video Club,</quote> <citetitle>New " "York Times</citetitle>, 17 January 2002." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:879 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 <quote>piracy</quote> " "will be permitted, and whether <quote>property</quote> will be " "protected. The <quote>war</quote> that has been waged against the " "technologies of the Internet—what Motion Picture Association of " "America (MPAA) president Jack Valenti calls his <quote>own terrorist " "war</quote><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:896 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 <quote>creative " "property.</quote> I believe that <quote>piracy</quote> is wrong, and that " "the law, properly tuned, should punish <quote>piracy,</quote> whether on or " "off the Internet." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:904 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 <quote>pirates</quote> will also rid our " "culture of values that have been integral to our tradition from the start." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:909 freeculture.xml:6909 freeculture.xml:7022 freeculture.xml:7023 freeculture.xml:7024 freeculture.xml:7073 freeculture.xml:7663 freeculture.xml:8953 freeculture.xml:11253 freeculture.xml:11555 freeculture.xml:12210 freeculture.xml:12371 msgid "Constitution, U.S." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:909 freeculture.xml:6909 freeculture.xml:7663 freeculture.xml:8953 msgid "First Amendment to" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:910 freeculture.xml:1075 freeculture.xml:1183 freeculture.xml:1209 freeculture.xml:1433 freeculture.xml:1554 freeculture.xml:1598 freeculture.xml:1712 freeculture.xml:3123 freeculture.xml:3218 freeculture.xml:4314 freeculture.xml:4315 freeculture.xml:4344 freeculture.xml:4733 freeculture.xml:4734 freeculture.xml:5335 freeculture.xml:6528 freeculture.xml:6976 freeculture.xml:7060 freeculture.xml:7061 freeculture.xml:7246 freeculture.xml:7346 freeculture.xml:7378 freeculture.xml:7408 freeculture.xml:7443 freeculture.xml:7557 freeculture.xml:7558 freeculture.xml:7619 freeculture.xml:7657 freeculture.xml:7757 freeculture.xml:7771 freeculture.xml:7830 freeculture.xml:7831 freeculture.xml:7929 freeculture.xml:9875 freeculture.xml:10233 freeculture.xml:11192 freeculture.xml:11238 msgid "copyright law" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:910 freeculture.xml:7060 msgid "as protection of creators" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:911 freeculture.xml:6910 freeculture.xml:7664 freeculture.xml:8954 msgid "First Amendment" msgstr "" #. type: Content of: <book><chapter><section><section><para><footnote><para><indexterm><primary> #: freeculture.xml:912 freeculture.xml:922 freeculture.xml:15385 msgid "Netanel, Neil Weinstock" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:920 msgid "" "Neil W. Netanel, <quote>Copyright and a Democratic Civil Society,</quote> " "<citetitle>Yale Law Journal</citetitle> 106 (1996): 283. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:914 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:930 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:942 msgid "" "The story that follows is about this war. It is not about the " "<quote>centrality of technology</quote> 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:950 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><indexterm><primary> #: freeculture.xml:960 freeculture.xml:1147 freeculture.xml:13503 freeculture.xml:13586 freeculture.xml:13756 msgid "intellectual property rights" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:962 msgid "" "<emphasis role=\"strong\">Like the Causbys'</emphasis> battle, this war is, " "in part, about <quote>property.</quote> 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 <quote>property</quote> 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 <quote>intellectual property</quote> 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 <quote>trespassing</quote> upon legitimate " "claims of <quote>property.</quote> 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:980 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:991 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 " "<quote>culture</quote> was as <quote>owned</quote> as it is now. And yet " "there has never been a time when the concentration of power to control the " "<emphasis>uses</emphasis> of culture has been as unquestioningly accepted as " "it is now." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:1001 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:1007 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:1011 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:1018 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:1027 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 <quote>intellectual property.</quote> 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:1038 msgid "" "<emphasis role=\"strong\">The struggle</emphasis> that rages just now " "centers on two ideas: <quote>piracy</quote> and <quote>property.</quote> My " "aim in this book's next two parts is to explore these two ideas." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:1043 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:1051 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 <quote>something new,</quote> is destroying " "something very old. Rather than understanding the changes the Internet might " "permit, and rather than taking time to let <quote>common sense</quote> " "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:1062 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><part><title> #: freeculture.xml:1072 msgid "<quote>Piracy</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1075 freeculture.xml:4734 msgid "English" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1076 freeculture.xml:5144 msgid "Mansfield, William Murray, Lord" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1077 freeculture.xml:3161 msgid "music publishing" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1078 freeculture.xml:3215 msgid "sheet music" msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:1080 msgid "" "<emphasis role=\"strong\">Since the inception</emphasis> of the law " "regulating creative property, there has been a war against " "<quote>piracy.</quote> The precise contours of this concept, " "<quote>piracy,</quote> 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><part><partintro><blockquote><para><footnote><para> #: freeculture.xml:1092 msgid "" "<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 " "Eng. Rep. 1274 (1777) (Mansfield)." msgstr "" #. type: Content of: <book><part><partintro><blockquote><para> #: freeculture.xml:1088 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 "" #. type: Content of: <book><part><partintro><indexterm><secondary> #: freeculture.xml:1097 msgid "efficient content distribution on" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1098 freeculture.xml:3905 freeculture.xml:4263 freeculture.xml:6249 freeculture.xml:6758 freeculture.xml:11241 msgid "peer-to-peer (p2p) file sharing" msgstr "" #. type: Content of: <book><part><partintro><indexterm><secondary> #: freeculture.xml:1098 msgid "efficiency of" msgstr "" #. PAGE BREAK 31 #. type: Content of: <book><part><partintro><para> #: freeculture.xml:1100 msgid "" "Today we are in the middle of another <quote>war</quote> against " "<quote>piracy.</quote> 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><part><partintro><para> #: freeculture.xml:1109 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 <quote>rob the author of the profit.</quote>" msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:1118 msgid "" "The warriors have turned to the courts, to the legislatures, and " "increasingly to technology to defend their <quote>property</quote> against " "this <quote>piracy.</quote> A generation of Americans, the warriors warn, is " "being raised to believe that <quote>property</quote> should be " "<quote>free.</quote> Forget tattoos, never mind body piercing—our kids " "are becoming <emphasis>thieves</emphasis>!" msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:1126 msgid "" "There's no doubt that <quote>piracy</quote> is wrong, and that pirates " "should be punished. But before we summon the executioners, we should put " "this notion of <quote>piracy</quote> 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><part><partintro><para> #: freeculture.xml:1132 msgid "The idea goes something like this:" msgstr "" #. type: Content of: <book><part><partintro><blockquote><para> #: freeculture.xml:1136 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><part><partintro><indexterm><primary> #: freeculture.xml:1144 msgid "ASCAP" msgstr "" #. type: Content of: <book><part><partintro><indexterm><primary> #: freeculture.xml:1145 msgid "Dreyfuss, Rochelle" msgstr "" #. type: Content of: <book><part><partintro><indexterm><primary> #: freeculture.xml:1146 msgid "Girl Scouts" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1147 freeculture.xml:1148 freeculture.xml:7027 freeculture.xml:7131 freeculture.xml:7576 msgid "creative property" msgstr "" #. type: Content of: <book><part><partintro><indexterm><secondary> #: freeculture.xml:1148 msgid "<quote>if value, then right</quote> theory of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1149 freeculture.xml:3013 msgid "<quote>if value, then right</quote> theory" msgstr "" #. f2 #. type: Content of: <book><part><partintro><para><footnote><para> #: freeculture.xml:1155 msgid "" "See Rochelle Dreyfuss, <quote>Expressive Genericity: Trademarks as Language " "in the Pepsi Generation,</quote> <citetitle>Notre Dame Law " "Review</citetitle> 65 (1990): 397." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:1168 freeculture.xml:7512 msgid "Zittrain, Jonathan" msgstr "" #. type: Content of: <book><part><partintro><para><footnote><para> #: freeculture.xml:1163 msgid "" "Lisa Bannon, <quote>The Birds May Sing, but Campers Can't Unless They Pay " "Up,</quote> <citetitle>Wall Street Journal</citetitle>, 21 August 1996, " "available at <ulink url=\"http://free-culture.cc/notes/\">link #3</ulink>; " "Jonathan Zittrain, <quote>Calling Off the Copyright War: In Battle of " "Property vs. Free Speech, No One Wins,</quote> <citetitle>Boston " "Globe</citetitle>, 24 November 2002. <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:1151 msgid "" "This view runs deep within the current debates. It is what NYU law professor " "Rochelle Dreyfuss criticizes as the <quote>if value, then right</quote> " "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 " "<quote>value</quote> (the songs) so there must have been a " "<quote>right</quote>—even against the Girl Scouts." msgstr "" #. PAGE BREAK 32 #. type: Content of: <book><part><partintro><para> #: freeculture.xml:1175 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 <quote>if value, then right</quote> " "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><part><chapter><section><indexterm><secondary> #: freeculture.xml:1183 freeculture.xml:7346 freeculture.xml:7443 freeculture.xml:7757 msgid "on republishing vs. transformation of original work" msgstr "" #. type: Content of: <book><part><chapter><section><para><indexterm><seealso> #: freeculture.xml:1184 freeculture.xml:1185 freeculture.xml:1367 freeculture.xml:1525 freeculture.xml:3825 msgid "creativity" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1184 freeculture.xml:3825 freeculture.xml:3826 freeculture.xml:3833 freeculture.xml:9876 msgid "innovation" msgstr "" #. type: Content of: <book><part><partintro><indexterm><secondary> #: freeculture.xml:1185 msgid "legal restrictions on" msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:1187 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><part><partintro><para> #: freeculture.xml:1194 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><part><partintro><para> #: freeculture.xml:1202 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><part><partintro><indexterm><secondary> #: freeculture.xml:1209 msgid "creativity impeded by" msgstr "" #. type: Content of: <book><part><partintro><para><footnote><para><indexterm><primary> #: freeculture.xml:1210 freeculture.xml:1241 msgid "Florida, Richard" msgstr "" #. type: Content of: <book><part><partintro><para><footnote><para><indexterm><primary> #: freeculture.xml:1211 freeculture.xml:1242 msgid "Rise of the Creative Class, The (Florida)" msgstr "" #. type: Content of: <book><part><partintro><para><footnote><para> #: freeculture.xml:1233 msgid "" "In <citetitle>The Rise of the Creative Class</citetitle> (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\"/> <placeholder " "type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:1213 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 <quote>copying,</quote> 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 <quote>Rise of the Creative Class.</quote><placeholder " "type=\"footnote\" id=\"0\"/> Unfortunately, we are also seeing an " "extraordinary rise of regulation of this creative class." msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:1249 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 <quote>piracy.</quote>" msgstr "" #. type: Content of: <book><part><chapter><title> #: freeculture.xml:1257 msgid "Chapter One: Creators" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1258 msgid "animated cartoons" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1259 msgid "cartoon films" msgstr "" #. type: Content of: <book><part><chapter><blockquote><indexterm><primary> #: freeculture.xml:1260 freeculture.xml:5339 freeculture.xml:5373 freeculture.xml:6086 freeculture.xml:6130 freeculture.xml:6248 msgid "films" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1260 msgid "animated" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1261 msgid "Steamboat Willie" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1262 freeculture.xml:7537 msgid "Mickey Mouse" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1264 msgid "" "<emphasis role=\"strong\">In 1928</emphasis>, a cartoon character was " "born. An early Mickey Mouse made his debut in May of that year, in a silent " "flop called <citetitle>Plane Crazy</citetitle>. In November, in New York " "City's Colony Theater, in the first widely distributed cartoon synchronized " "with sound, <citetitle>Steamboat Willie</citetitle> brought to life the " "character that would become Mickey Mouse." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1270 freeculture.xml:1488 freeculture.xml:1542 freeculture.xml:1683 freeculture.xml:1929 freeculture.xml:4568 freeculture.xml:6266 freeculture.xml:7536 freeculture.xml:11133 freeculture.xml:11558 msgid "Disney, Walt" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1272 msgid "" "Synchronized sound had been introduced to film a year earlier in the movie " "<citetitle>The Jazz Singer</citetitle>. 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><part><chapter><blockquote><para> #: freeculture.xml:1281 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><part><chapter><blockquote><para> #: freeculture.xml:1288 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><part><chapter><blockquote><para><footnote><para> #: freeculture.xml:1301 msgid "" "Leonard Maltin, <citetitle>Of Mice and Magic: A History of American Animated " "Cartoons</citetitle> (New York: Penguin Books, 1987), 34–35." msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:1295 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><part><chapter><indexterm><primary> #: freeculture.xml:1306 msgid "Iwerks, Ub" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1308 msgid "" "Disney's then partner, and one of animation's most extraordinary talents, Ub " "Iwerks, put it more strongly: <quote>I have never been so thrilled in my " "life. Nothing since has ever equaled it.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1313 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><part><chapter><indexterm><primary> #: freeculture.xml:1322 freeculture.xml:1685 msgid "Keaton, Buster" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1323 freeculture.xml:1555 freeculture.xml:1943 msgid "Steamboat Bill, Jr." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1325 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 <citetitle>Steamboat Bill, Jr</citetitle>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1331 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. <citetitle>Steamboat Bill, Jr</citetitle>. 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1338 freeculture.xml:1496 freeculture.xml:7347 freeculture.xml:7444 freeculture.xml:7622 freeculture.xml:7726 freeculture.xml:7772 msgid "derivative works" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:1338 freeculture.xml:1496 freeculture.xml:7444 freeculture.xml:7622 msgid "piracy vs." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:1339 freeculture.xml:1499 freeculture.xml:3012 freeculture.xml:3723 freeculture.xml:7445 freeculture.xml:7623 freeculture.xml:15453 msgid "piracy" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:1339 freeculture.xml:1499 freeculture.xml:7445 freeculture.xml:7623 msgid "derivative work vs." msgstr "" #. f2 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1347 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 <citetitle>Steamboat Willie</citetitle>: <quote>Steamboat " "Bill,</quote> <quote>The Simpleton</quote> (Delille), <quote>Mischief " "Makers</quote> (Carbonara), <quote>Joyful Hurry No. 1</quote> (Baron), and " "<quote>Gawky Rube</quote> (Lakay). A sixth song, <quote>The Turkey in the " "Straw,</quote> 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><part><chapter><para> #: freeculture.xml:1341 msgid "" "<citetitle>Steamboat Bill, Jr</citetitle>. 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 " "<citetitle>The Jazz Singer</citetitle> that we get <citetitle>Steamboat " "Willie</citetitle>. It is also from Buster Keaton's invention of Steamboat " "Bill, Jr., itself inspired by the song <quote>Steamboat Bill,</quote> that " "we get Steamboat Willie, and then from Steamboat Willie, Mickey Mouse." msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1367 freeculture.xml:1525 msgid "by transforming previous works" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1368 freeculture.xml:6309 freeculture.xml:7829 msgid "Disney, Inc." msgstr "" #. f3 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1374 msgid "" "He was also a fan of the public domain. See Chris Sprigman, <quote>The Mouse " "that Ate the Public Domain,</quote> Findlaw, 5 March 2002, at <ulink " "url=\"http://free-culture.cc/notes/\">link #5</ulink>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1370 msgid "" "This <quote>borrowing</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:1388 freeculture.xml:1684 freeculture.xml:11134 msgid "Grimm fairy tales" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1390 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><part><chapter><para> #: freeculture.xml:1399 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: <citetitle>Snow White</citetitle> (1937), " "<citetitle>Fantasia</citetitle> (1940), <citetitle>Pinocchio</citetitle> " "(1940), <citetitle>Dumbo</citetitle> (1941), <citetitle>Bambi</citetitle> " "(1942), <citetitle>Song of the South</citetitle> (1946), " "<citetitle>Cinderella</citetitle> (1950), <citetitle>Alice in " "Wonderland</citetitle> (1951), <citetitle>Robin Hood</citetitle> (1952), " "<citetitle>Peter Pan</citetitle> (1953), <citetitle>Lady and the " "Tramp</citetitle> (1955), <citetitle>Mulan</citetitle> (1998), " "<citetitle>Sleeping Beauty</citetitle> (1959), <citetitle>101 " "Dalmatians</citetitle> (1961), <citetitle>The Sword in the Stone</citetitle> " "(1963), and <citetitle>The Jungle Book</citetitle> (1967)—not to " "mention a recent example that we should perhaps quickly forget, " "<citetitle>Treasure Planet</citetitle> (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><part><chapter><para> #: freeculture.xml:1422 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 <quote>Disney creativity,</quote> though that would be a bit " "misleading. It is, more precisely, <quote>Walt Disney " "creativity</quote>—a form of expression and genius that builds upon " "the culture around us and makes it something different." msgstr "" #. type: Content of: <book><chapter><section><indexterm><primary> #: freeculture.xml:1433 freeculture.xml:1434 freeculture.xml:4786 freeculture.xml:4787 freeculture.xml:4853 freeculture.xml:4891 freeculture.xml:4947 freeculture.xml:4993 freeculture.xml:5128 freeculture.xml:5222 freeculture.xml:6725 freeculture.xml:7025 freeculture.xml:7026 freeculture.xml:7029 freeculture.xml:7102 freeculture.xml:7128 freeculture.xml:7168 freeculture.xml:7292 freeculture.xml:7339 freeculture.xml:7376 freeculture.xml:7679 freeculture.xml:7850 freeculture.xml:11191 freeculture.xml:11215 freeculture.xml:11556 freeculture.xml:11557 freeculture.xml:14101 freeculture.xml:14135 msgid "copyright" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1434 freeculture.xml:4786 freeculture.xml:4947 freeculture.xml:7026 freeculture.xml:7029 freeculture.xml:7128 freeculture.xml:11191 freeculture.xml:11557 msgid "duration of" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:1435 freeculture.xml:1436 freeculture.xml:5223 freeculture.xml:7132 freeculture.xml:7257 freeculture.xml:8144 freeculture.xml:11125 freeculture.xml:13591 freeculture.xml:14387 freeculture.xml:14388 msgid "public domain" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1435 msgid "defined" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1436 msgid "traditional term for conversion to" msgstr "" #. f4 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1443 msgid "" "Until 1976, copyright law granted an author the possibility of two terms: an " "initial term and a renewal term. I have calculated the " "<quote>average</quote> 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><part><chapter><para> #: freeculture.xml:1437 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 <quote>exclusive right</quote> 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><part><chapter><para> #: freeculture.xml:1460 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 <quote>lawyer-free zone.</quote> " "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><part><chapter><para> #: freeculture.xml:1471 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><part><chapter><para> #: freeculture.xml:1490 msgid "" "<emphasis role=\"strong\">Of course</emphasis>, Walt Disney had no monopoly " "on <quote>Walt Disney creativity.</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:1495 freeculture.xml:1599 freeculture.xml:1713 msgid "comics, Japanese" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1497 freeculture.xml:1715 msgid "Japanese comics" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1498 freeculture.xml:1716 msgid "manga" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1501 msgid "" "Consider, for example, a form of creativity that seems strange to many " "Americans but that is inescapable within Japanese culture: " "<citetitle>manga</citetitle>, 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><part><chapter><para> #: freeculture.xml:1510 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 <quote>graphic novels</quote> tell. For the Japanese, manga cover " "every aspect of social life. For us, comics are <quote>men in " "tights.</quote> 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><part><chapter><para> #: freeculture.xml:1521 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1526 freeculture.xml:1714 msgid "doujinshi comics" msgstr "" #. PAGE BREAK 39 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1528 msgid "" "This is the phenomenon of <citetitle>doujinshi</citetitle>. 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 " "<emphasis>just</emphasis> 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 <quote>different.</quote> 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><part><chapter><para> #: freeculture.xml:1544 msgid "" "These copycat comics are not a tiny part of the manga market. They are " "huge. More than 33,000 <quote>circles</quote> 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><part><chapter><indexterm><secondary> #: freeculture.xml:1554 freeculture.xml:1598 freeculture.xml:1712 msgid "Japanese" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1557 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 " "<quote>derivative works.</quote> 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 <citetitle>Steamboat Bill, Jr</citetitle>. Under both " "Japanese and American law, that <quote>taking</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:1571 msgid "Winick, Judd" msgstr "" #. f5 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1583 msgid "" "For an excellent history, see Scott McCloud, <citetitle>Reinventing " "Comics</citetitle> (New York: Perennial, 2000)." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1573 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, <quote>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</quote> and building " "from them.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1588 msgid "Superman comics" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1590 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, <quote>there are these rules " "and you have to stick to them.</quote> There are things Superman " "<quote>cannot</quote> do. <quote>As a creator, it's frustrating having to " "stick to some parameters which are fifty years old.</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1600 msgid "Mehra, Salil" msgstr "" #. f6 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1610 msgid "" "See Salil K. Mehra, <quote>Copyright and Comics in Japan: Does Law Explain " "Why All the Comics My Kid Watches Are Japanese Imports?</quote> " "<citetitle>Rutgers Law Review</citetitle> 55 (2002): 155, " "182. <quote>[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.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1602 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><part><chapter><para> #: freeculture.xml:1624 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 " "<quote>free taking</quote> by the doujinshi culture?" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1637 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. <quote>We don't have enough lawyers,</quote> he " "told me one afternoon. There <quote>just aren't enough resources to " "prosecute cases like this.</quote>" msgstr "" #. PAGE BREAK 41 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1644 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?" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1657 msgid "<emphasis role='strong'>Let's pause</emphasis> for a moment." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1660 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><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:1670 freeculture.xml:3033 freeculture.xml:4799 freeculture.xml:5058 freeculture.xml:7960 freeculture.xml:9098 msgid "Vaidhyanathan, Siva" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1670 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> The term <citetitle>intellectual " "property</citetitle> is of relatively recent origin. See Siva Vaidhyanathan, " "<citetitle>Copyrights and Copywrongs</citetitle>, 11 (New York: New York " "University Press, 2001). See also Lawrence Lessig, <citetitle>The Future of " "Ideas</citetitle> (New York: Random House, 2001), 293 n. 26. The term " "accurately describes a set of <quote>property</quote> rights — " "copyright, patents, trademark, and trade-secret — but the nature of " "those rights is very different." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1665 msgid "" "We live in a world that celebrates <quote>property.</quote> 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 " "<quote>intellectual property.</quote><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><part><chapter><para> #: freeculture.xml:1687 msgid "" "But it takes just a second's reflection to realize that there is plenty of " "value out there that <quote>property</quote> doesn't capture. I don't mean " "<quote>money can't buy you love,</quote> 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 " "<quote>fair.</quote> There was nothing wrong with the taking from the Grimms " "because the Grimms' work was in the public domain." msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1701 msgid "derivative works based on" msgstr "" #. PAGE BREAK 42 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1703 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><part><chapter><para> #: freeculture.xml:1718 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><part><chapter><para> #: freeculture.xml:1727 msgid "" "Yet there is an obvious reluctance, even among Japanese lawyers, to say that " "the copycat comic artists are <quote>stealing.</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:1738 freeculture.xml:4739 freeculture.xml:4871 freeculture.xml:4908 freeculture.xml:5238 msgid "Shakespeare, William" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1740 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. (<quote>Excuse me, Professor Einstein, but may " "I have permission to use your theory of relativity to show that you were " "wrong about quantum physics?</quote>) Acting companies perform adaptations " "of the works of Shakespeare without securing permission from anyone. (Does " "<emphasis>anyone</emphasis> 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><part><chapter><para> #: freeculture.xml:1754 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><part><chapter><para> #: freeculture.xml:1766 msgid "" "The hard question is therefore not <emphasis>whether</emphasis> a culture is " "free. All cultures are free to some degree. The hard question instead is " "<quote><emphasis>How</emphasis> free is this culture?</quote> 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><part><chapter><para> #: freeculture.xml:1778 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><part><chapter><title> #: freeculture.xml:1787 msgid "Chapter Two: <quote>Mere Copyists</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1788 msgid "Daguerre, Louis" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1789 freeculture.xml:1944 freeculture.xml:1999 freeculture.xml:6836 msgid "camera technology" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1790 msgid "photography" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1792 msgid "" "<emphasis role='strong'>In 1839</emphasis>, Louis Daguerre invented the " "first practical technology for producing what we would call " "<quote>photographs.</quote> Appropriately enough, they were called " "<quote>daguerreotypes.</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:1801 msgid "Talbot, William" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1803 msgid "" "Yet despite high prices, the demand for daguerreotypes was strong. This " "pushed inventors to find simpler and cheaper ways to make <quote>automatic " "pictures.</quote> William Talbot soon discovered a process for making " "<quote>negatives.</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:1813 msgid "Eastman, George" msgstr "" #. PAGE BREAK 45 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1815 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1826 freeculture.xml:1981 freeculture.xml:6838 freeculture.xml:9677 msgid "Kodak cameras" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1827 msgid "Kodak Primer, The (Eastman)" msgstr "" #. f1 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1834 msgid "" "Reese V. Jenkins, <citetitle>Images and Enterprise</citetitle> (Baltimore: " "Johns Hopkins University Press, 1975), 112." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1829 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. <quote>You press the button and we do the " "rest.</quote><placeholder type=\"footnote\" id=\"0\"/> As he described in " "<citetitle>The Kodak Primer</citetitle>:" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1850 freeculture.xml:1876 msgid "Coe, Brian" msgstr "" #. type: Content of: <book><part><chapter><blockquote><para><footnote><para> #: freeculture.xml:1850 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> Brian Coe, <citetitle>The Birth " "of Photography</citetitle> (New York: Taplinger Publishing, 1977), 53." msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:1839 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><part><chapter><para><footnote><para> #: freeculture.xml:1869 msgid "Jenkins, 177." msgstr "" #. f4 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1873 msgid "Based on a chart in Jenkins, p. 178." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1858 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 11 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><part><chapter><para><footnote><para> #: freeculture.xml:1891 msgid "Coe, 58." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1880 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, <quote>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.</quote><placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:1894 freeculture.xml:2000 freeculture.xml:2380 freeculture.xml:2398 freeculture.xml:8841 freeculture.xml:9676 freeculture.xml:15417 msgid "democracy" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1894 freeculture.xml:2000 freeculture.xml:2380 msgid "in technologies of expression" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1895 freeculture.xml:2001 freeculture.xml:2041 freeculture.xml:2382 msgid "expression, technologies of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1895 freeculture.xml:2001 freeculture.xml:2382 msgid "democratic" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1897 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 <quote>quality</quote>; 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1910 msgid "permissions" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1910 msgid "photography exempted from" msgstr "" #. f6 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1921 msgid "" "For illustrative cases, see, for example, <citetitle>Pavesich</citetitle> " "v. <citetitle>N.E. Life Ins. Co</citetitle>., 50 S.E. 68 (Ga. 1905); " "<citetitle>Foster-Milburn Co</citetitle>. v. <citetitle>Chinn</citetitle>, " "123090 S.W. 364, 366 (Ky. 1909); <citetitle>Corliss</citetitle> " "v. <citetitle>Walker</citetitle>, 64 F. 280 (Mass. Dist. Ct. 1894)." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1912 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1930 freeculture.xml:9801 msgid "images, ownership of" msgstr "" #. PAGE BREAK 47 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1932 msgid "" "The arguments in favor of requiring permission will sound surprisingly " "familiar. The photographer was <quote>taking</quote> 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><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:1956 msgid "Warren, Samuel D." msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1953 msgid "" "Samuel D. Warren and Louis D. Brandeis, <quote>The Right to Privacy,</quote> " "<citetitle>Harvard Law Review</citetitle> 4 (1890): 193. <placeholder " "type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1946 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 <citetitle>Steamboat " "Bill, Jr</citetitle>. or the Brothers Grimm, the photographer should be free " "to capture an image without compensating the source." msgstr "" #. f8 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1974 msgid "" "See Melville B. Nimmer, <quote>The Right of Publicity,</quote> " "<citetitle>Law and Contemporary Problems</citetitle> 19 (1954): 203; William " "L. Prosser, <quote>Privacy,</quote> <citetitle>California Law " "Review</citetitle> 48 (1960) 398–407; <citetitle>White</citetitle> " "v. <citetitle>Samsung Electronics America, Inc</citetitle>., 971 F. 2d 1395 " "(9th Cir. 1992), cert. denied, 508 U.S. 951 (1993)." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1964 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><part><chapter><section><indexterm><primary> #: freeculture.xml:1982 freeculture.xml:3827 freeculture.xml:3849 freeculture.xml:3850 freeculture.xml:3906 freeculture.xml:4262 freeculture.xml:5814 freeculture.xml:10042 freeculture.xml:10956 msgid "Napster" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1984 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 " "<quote>theft</quote> committed by the photographer. Just as Napster " "benefited from the copyright infringements committed by Napster users, Kodak " "would be benefiting from the <quote>image-right</quote> 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><part><chapter><para> #: freeculture.xml:2005 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." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:2021 freeculture.xml:6837 msgid "digital cameras" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2022 msgid "Just Think!" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2024 msgid "" "<emphasis role='strong'>If you drive</emphasis> through San Francisco's " "Presidio, you might see two gaudy yellow school buses painted over with " "colorful and striking images, and the logo <quote>Just Think!</quote> in " "place of the name of a school. But there's little that's <quote>just</quote> " "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 <quote>film</quote> 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2039 freeculture.xml:2840 msgid "education" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2039 msgid "in media literacy" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2040 msgid "media literacy" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2041 msgid "media literacy and" msgstr "" #. f9 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2049 msgid "" "H. Edward Goldberg, <quote>Essential Presentation Tools: Hardware and " "Software You Need to Create Digital Multimedia Presentations,</quote> " "cadalyst, February 2002, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #7</ulink>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2043 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, <quote>Five years ago, a good " "real-time digital video editing system cost $25,000. Today you can get " "professional quality for $595.</quote><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 <quote>media " "literacy.</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2059 msgid "Yanofsky, Dave" msgstr "" #. PAGE BREAK 49 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2062 msgid "" "<quote>Media literacy,</quote> as Dave Yanofsky, the executive director of " "Just Think!, puts it, <quote>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.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2070 msgid "" "This may seem like an odd way to think about <quote>literacy.</quote> For " "most people, literacy is about reading and writing. Faulkner and Hemingway " "and noticing split infinitives are the things that <quote>literate</quote> " "people know about." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:2075 freeculture.xml:2629 freeculture.xml:6833 freeculture.xml:7810 freeculture.xml:8920 freeculture.xml:8974 msgid "advertising" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:2076 freeculture.xml:6835 freeculture.xml:8921 msgid "commercials" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:2077 freeculture.xml:6834 freeculture.xml:8922 freeculture.xml:8956 freeculture.xml:15451 msgid "television" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:2077 freeculture.xml:6834 freeculture.xml:8922 msgid "advertising on" msgstr "" #. f10 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2083 msgid "" "Judith Van Evra, <citetitle>Television and Child Development</citetitle> " "(Hillsdale, N.J.: Lawrence Erlbaum Associates, 1990); <quote>Findings on " "Family and TV Study,</quote> <citetitle>Denver Post</citetitle>, 25 May " "1997, B6." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2079 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 <quote>grammar</quote> 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><part><chapter><para> #: freeculture.xml:2094 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><part><chapter><para> #: freeculture.xml:2105 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><part><chapter><indexterm><primary> #: freeculture.xml:2112 freeculture.xml:2128 freeculture.xml:2234 msgid "Daley, Elizabeth" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2113 msgid "Crichton, Michael" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2127 freeculture.xml:2187 freeculture.xml:2194 freeculture.xml:2267 freeculture.xml:2692 msgid "Barish, Stephanie" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2125 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><part><chapter><para><footnote><para> #: freeculture.xml:2139 msgid "" "See Scott Steinberg, <quote>Crichton Gets Medieval on PCs,</quote> E!online, " "4 November 2000, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #8</ulink>; " "<quote>Timeline,</quote> 22 November 2000, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #9</ulink>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2115 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 <quote>the " "placement of objects, color, … rhythm, pacing, and " "texture.</quote><placeholder type=\"footnote\" id=\"0\"/> But as computers " "open up an interactive space where a story is <quote>played</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:2146 msgid "computer games" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2148 msgid "" "This skill is precisely the craft a filmmaker learns. As Daley describes, " "<quote>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.</quote> If you know " "you were led through a film, the film has failed." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2155 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><part><chapter><blockquote><para> #: freeculture.xml:2162 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><part><chapter><para> #: freeculture.xml:2170 msgid "" "<quote>Read-only.</quote> Passive recipients of culture produced elsewhere. " "Couch potatoes. Consumers. This is the world of media from the twentieth " "century." msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2186 msgid "Interview with Daley and Barish. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. f31 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:2191 freeculture.xml:4099 freeculture.xml:5286 freeculture.xml:8807 msgid "Ibid." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2175 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 <quote>empower people to choose the " "appropriate language for what they need to create or " "express.</quote><placeholder type=\"footnote\" id=\"0\"/> It is to enable " "students <quote>to communicate in the language of the twenty-first " "century.</quote><placeholder type=\"footnote\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2196 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><part><chapter><para> #: freeculture.xml:2209 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 " "<quote>kids were showing up at 6 A.M. and leaving at 5 at night,</quote> " "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><part><chapter><para> #: freeculture.xml:2217 msgid "" "Using whatever <quote>free web stuff they could find,</quote> and relatively " "simple tools to enable the kids to mix <quote>image, sound, and " "text,</quote> 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 <quote>gave them a tool and empowered them to be able to both " "understand it and talk about it,</quote> Barish explained. That tool " "succeeded in creating expression—far more successfully and powerfully " "than could have been created using only text. <quote>If you had said to " "these students, <quote>you have to do it in text,</quote> they would've just " "thrown their hands up and gone and done something else,</quote> 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 " "<emphasis>these</emphasis> 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><part><chapter><para> #: freeculture.xml:2238 msgid "" "<quote>But isn't education about teaching kids to write?</quote> 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 <quote>constructing " "meaning.</quote> 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><part><chapter><blockquote><para> #: freeculture.xml:2249 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, <quote>Johnny, you're illiterate. Nothing you " "can do matters.</quote> 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, <quote>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.</quote> Not by giving a kid a video " "camera and … saying, <quote>Let's go have fun with the video camera " "and make a little movie.</quote> 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><part><chapter><blockquote><para> #: freeculture.xml:2269 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, " "<quote>I need to explain this and I really need to write something.</quote> " "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><part><chapter><blockquote><para> #: freeculture.xml:2276 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><part><chapter><indexterm><primary> #: freeculture.xml:2288 freeculture.xml:2350 freeculture.xml:6115 msgid "September 11, 2001, terrorist attacks of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2289 msgid "World Trade Center" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2290 freeculture.xml:6035 msgid "news coverage" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2292 msgid "" "<emphasis role='strong'>When two planes</emphasis> 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><part><chapter><para> #: freeculture.xml:2304 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 <quote>balance,</quote> " "and seriousness. This was news choreographed in the way we have increasingly " "come to expect it, <quote>news as entertainment,</quote> even if the " "entertainment is tragedy." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:2311 freeculture.xml:8746 freeculture.xml:8968 msgid "ABC" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2312 msgid "CBS" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2313 msgid "Cyber Rights (Godwin)" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2314 msgid "Godwin, Mike" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2315 freeculture.xml:2483 msgid "news events on" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2317 msgid "" "But in addition to this produced news about the <quote>tragedy of September " "11,</quote> 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 <citetitle>Cyber " "Rights</citetitle>, 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><part><chapter><para> #: freeculture.xml:2332 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 <quote>Just Think!</quote> bus, the visual images could be mixed with " "sound or text." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2342 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><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:2351 freeculture.xml:2447 freeculture.xml:2586 msgid "blogs (Web-logs)" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2352 freeculture.xml:2449 msgid "blogs on" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2353 freeculture.xml:2450 msgid "Web-logs (blogs)" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2355 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 <citetitle>Jerry " "Springer</citetitle>, available anywhere in the world." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2364 freeculture.xml:2433 msgid "political discourse" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2365 msgid "public discourse conducted on" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2367 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2381 msgid "elections" msgstr "" #. PAGE BREAK 55 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2384 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2397 msgid "Tocqueville, Alexis de" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2398 msgid "public discourse in" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2399 msgid "jury system" msgstr "" #. f15 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2416 msgid "" "See, for example, Alexis de Tocqueville, <citetitle>Democracy in " "America</citetitle>, bk. 1, trans. Henry Reeve (New York: Bantam Books, " "2000), ch. 16." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2401 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 <quote>Democracy in America.</quote> 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 " "<quote>right</quote> result; they tried to persuade each other of the " "<quote>right</quote> 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><part><chapter><para><footnote><para> #: freeculture.xml:2426 msgid "" "Bruce Ackerman and James Fishkin, <quote>Deliberation Day,</quote> " "<citetitle>Journal of Political Philosophy</citetitle> 10 (2) (2002): 129." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2422 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 <quote>democratic deliberation</quote> to occur." msgstr "" #. f17 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2442 msgid "" "Cass Sunstein, <citetitle>Republic.com</citetitle> (Princeton: Princeton " "University Press, 2001), 65–80, 175, 182, 183, 192." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2435 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2448 msgid "e-mail" msgstr "" #. PAGE BREAK 56 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2455 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><part><chapter><para> #: freeculture.xml:2466 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><part><chapter><indexterm><primary> #: freeculture.xml:2473 msgid "Dean, Howard" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2475 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." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2480 msgid "Lott, Trent" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2481 msgid "Thurmond, Strom" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2482 msgid "blog pressure on" msgstr "" #. f18 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2496 msgid "" "Noah Shachtman, <quote>With Incessant Postings, a Pundit Stirs the " "Pot,</quote> <citetitle>New York Times</citetitle>, 16 January 2003, G5." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2485 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 " "<quote>misspoke</quote> 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 <quote>misspeaking</quote> 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\"/>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2500 freeculture.xml:2534 msgid "commercial imperatives of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2502 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><part><chapter><indexterm><secondary> #: freeculture.xml:2509 msgid "peer-generated rankings on" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2511 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><part><chapter><indexterm><primary> #: freeculture.xml:2520 msgid "journalism" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2521 msgid "Winer, Dave" msgstr "" #. PAGE BREAK 57 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2523 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 <quote>conflict of interest.</quote> <quote>I think " "you have to take the conflict of interest</quote> out of journalism, Winer " "told me. <quote>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.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:2533 freeculture.xml:2583 msgid "CNN" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:2535 freeculture.xml:2584 freeculture.xml:5977 msgid "Iraq war" msgstr "" #. f19 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2544 msgid "Telephone interview with David Winer, 16 April 2003." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2538 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 <emphasis>they</emphasis> were writing " "<quote>the story.</quote>)" msgstr "" #. f20 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2564 msgid "" "John Schwartz, <quote>Loss of the Shuttle: The Internet; A Wealth of " "Information Online,</quote> <citetitle>New York Times</citetitle>, 2 " "February 2003, A28; Staci D. Kramer, <quote>Shuttle Disaster Coverage Mixed, " "but Strong Overall,</quote> Online Journalism Review, 2 February 2003, " "available at <ulink url=\"http://free-culture.cc/notes/\">link #10</ulink>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2556 msgid "" "Blog space gives amateurs a way to enter the " "debate—<quote>amateur</quote> 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 <quote>triangulate,</quote> as Winer puts " "it, the truth. Blogs, Winer says, are <quote>communicating directly with our " "constituency, and the middle man is out of it</quote>—with all the " "benefits, and costs, that might entail." msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:2585 msgid "Olafson, Steve" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2583 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> <placeholder " "type=\"indexterm\" id=\"3\"/> See Michael Falcone, <quote>Does an Editor's " "Pencil Ruin a Web Log?</quote> <citetitle>New York Times</citetitle>, 29 " "September 2003, C4. (<quote>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 " "<citetitle>Houston Chronicle</citetitle> 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.</quote>)" msgstr "" #. PAGE BREAK 58 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2576 msgid "" "Winer is optimistic about the future of journalism infected with " "blogs. <quote>It's going to become an essential skill,</quote> Winer " "predicts, for public figures and increasingly for private figures as " "well. It's not clear that <quote>journalism</quote> 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. <quote>A lot of what we are doing now is warm-up " "exercises,</quote> 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, <quote>we will be the last thing that gets shut " "down.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2607 msgid "" "This speech affects democracy. Winer thinks that happens because <quote>you " "don't have to work for somebody who controls, [for] a gatekeeper.</quote> " "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><part><chapter><section><indexterm><primary> #: freeculture.xml:2628 freeculture.xml:6824 msgid "Brown, John Seely" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2631 msgid "" "<emphasis role='strong'>John Seely Brown</emphasis> is the chief scientist " "of the Xerox Corporation. His work, as his Web site describes it, is " "<quote>human learning and … the creation of knowledge ecologies for " "creating … innovation.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2637 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><part><chapter><para> #: freeculture.xml:2644 msgid "" "As Brown believes, we learn by tinkering. When <quote>a lot of us grew " "up,</quote> he explains, that tinkering was done <quote>on motorcycle " "engines, lawnmower engines, automobiles, radios, and so on.</quote> 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 <quote>free collage,</quote> as Brown calls it. Many get to " "add to or transform the tinkering of many others." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2657 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><part><chapter><para> #: freeculture.xml:2664 msgid "" "This opportunity creates a <quote>completely new kind of learning " "platform,</quote> as Brown describes. <quote>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.</quote> Each effort is a kind of " "apprenticeship. <quote>Open source becomes a major apprenticeship " "platform.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2672 msgid "" "In this process, <quote>the concrete things you tinker with are abstract. " "They are code.</quote> Kids are <quote>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.</quote> The more you improve, the more you " "learn." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2681 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, " "<quote>the Web [is] the first medium that truly honors multiple forms of " "intelligence.</quote> Earlier technologies, such as the typewriter or word " "processors, helped amplify text. But the Web amplifies much more than " "text. <quote>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.</quote>" msgstr "" #. PAGE BREAK 60 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2694 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><part><chapter><para> #: freeculture.xml:2702 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><part><chapter><para><footnote><para> #: freeculture.xml:2718 msgid "" "See, for example, Edward Felten and Andrew Appel, <quote>Technological " "Access Control Interferes with Noninfringing Scholarship,</quote> " "<citetitle>Communications of the Association for Computer " "Machinery</citetitle> 43 (2000): 9." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2711 msgid "" "These restrictions have become the focus of researchers and scholars. " "Professor Ed Felten of Princeton (whom we'll see more of in chapter <xref " "xrefstyle=\"select: labelnumber\" linkend=\"property-i\"/>) has developed a " "powerful argument in favor of the <quote>right to tinker</quote> 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><part><chapter><para> #: freeculture.xml:2726 msgid "" "<quote>This is where education in the twenty-first century is going,</quote> " "Brown explains. We need to <quote>understand how kids who grow up digital " "think and want to learn.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2731 msgid "" "<quote>Yet,</quote> as Brown continued, and as the balance of this book will " "evince, <quote>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.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2738 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><part><chapter><indexterm><primary> #: freeculture.xml:2743 freeculture.xml:5978 freeculture.xml:6019 freeculture.xml:11635 freeculture.xml:11893 msgid "Kahle, Brewster" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2746 msgid "" "<quote>No way to run a culture,</quote> as Brewster Kahle, whom we'll meet " "in chapter <xref xrefstyle=\"select: labelnumber\" linkend=\"collectors\"/>, " "quipped to me in a rare moment of despondence." msgstr "" #. type: Content of: <book><part><chapter><title> #: freeculture.xml:2753 msgid "Chapter Three: Catalogs" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:2754 freeculture.xml:2797 freeculture.xml:9714 msgid "Jordan, Jesse" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2755 msgid "RPI" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2755 freeculture.xml:2756 freeculture.xml:2757 msgid "Rensselaer Polytechnic Institute (RPI)" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2757 msgid "computer network search engine of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2758 msgid "search engines" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2759 msgid "university computer networks, p2p sharing on" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2760 msgid "search engines used on" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2762 msgid "" "<emphasis role='strong'>In the fall</emphasis> 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><part><chapter><para> #: freeculture.xml:2770 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><part><chapter><para> #: freeculture.xml:2778 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2784 freeculture.xml:2839 msgid "Google" msgstr "" #. PAGE BREAK 62 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2786 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 <quote>intranet</quote> 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><indexterm><primary> #: freeculture.xml:2798 freeculture.xml:3728 freeculture.xml:3730 freeculture.xml:3731 freeculture.xml:5566 freeculture.xml:8274 freeculture.xml:13690 freeculture.xml:13759 msgid "Microsoft" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2798 msgid "network file system of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2800 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><part><chapter><para> #: freeculture.xml:2810 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><part><chapter><para> #: freeculture.xml:2823 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><part><chapter><para> #: freeculture.xml:2831 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><part><chapter><indexterm><secondary> #: freeculture.xml:2840 msgid "tinkering as means of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2842 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:2856 freeculture.xml:9712 freeculture.xml:9991 msgid "in recording industry" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2857 msgid "against student file sharing" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:2858 freeculture.xml:2956 freeculture.xml:3219 freeculture.xml:3348 freeculture.xml:4317 freeculture.xml:4318 freeculture.xml:4319 freeculture.xml:6250 freeculture.xml:9992 freeculture.xml:10411 freeculture.xml:10412 freeculture.xml:10413 freeculture.xml:10569 msgid "recording industry" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:2858 freeculture.xml:9992 msgid "copyright infringement lawsuits of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:2859 freeculture.xml:2888 freeculture.xml:2957 freeculture.xml:9993 freeculture.xml:10414 freeculture.xml:10415 freeculture.xml:10567 msgid "Recording Industry Association of America (RIAA)" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:2859 freeculture.xml:9993 msgid "copyright infringement lawsuits filed by" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2862 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><part><chapter><para> #: freeculture.xml:2871 msgid "" "<quote>It was absurd,</quote> he told me. <quote>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</quote>—again, a <emphasis>search engine</emphasis>, 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:2884 freeculture.xml:9711 freeculture.xml:9990 msgid "exaggerated claims of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2885 msgid "statutory damages of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2886 msgid "individual defendants intimidated by" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2887 msgid "statutory damages" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2888 msgid "intimidation tactics of" msgstr "" #. PAGE BREAK 64 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2890 msgid "" "But the RIAA branded Jesse a pirate. They claimed he operated a network and " "had therefore <quote>willfully</quote> violated copyright laws. They " "demanded that he pay them the damages for his wrong. For cases of " "<quote>willful infringement,</quote> the Copyright Act specifies something " "lawyers call <quote>statutory damages.</quote> 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2900 msgid "Michigan Technical University" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2901 msgid "Princeton University" msgstr "" #. f1 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2915 msgid "" "Tim Goral, <quote>Recording Industry Goes After Campus P-2-P Networks: Suit " "Alleges $97.8 Billion in Damages,</quote> <citetitle>Professional Media " "Group LCC</citetitle> 6 (2003): 5, available at 2003 WL 55179443." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2903 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 <quote>damages</quote> 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 " "<emphasis>billion</emphasis>—six times the <emphasis>total</emphasis> " "profit of the film industry in 2001.<placeholder type=\"footnote\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2922 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><part><chapter><indexterm><primary> #: freeculture.xml:2928 msgid "Oppenheimer, Matt" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2930 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, <quote>You don't want to " "pay another visit to a dentist like me.</quote>) And throughout, the RIAA " "insisted it would not settle the case until it took every penny Jesse had " "saved." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2940 msgid "legal system, attorney costs in" msgstr "" #. PAGE BREAK 65 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2942 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><part><chapter><para> #: freeculture.xml:2952 msgid "" "So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or " "$12,000 and a settlement." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:2955 freeculture.xml:3349 freeculture.xml:4310 freeculture.xml:5575 freeculture.xml:5624 freeculture.xml:10306 freeculture.xml:10407 freeculture.xml:10568 freeculture.xml:10591 freeculture.xml:15350 freeculture.xml:15415 msgid "artists" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:2955 freeculture.xml:3349 freeculture.xml:4310 freeculture.xml:10306 freeculture.xml:10407 freeculture.xml:10568 freeculture.xml:10591 freeculture.xml:15350 freeculture.xml:15415 msgid "recording industry payments to" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:2956 freeculture.xml:4317 freeculture.xml:10411 freeculture.xml:10569 msgid "artist remuneration in" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:2957 freeculture.xml:10415 msgid "lobbying power of" msgstr "" #. f2 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2967 msgid "" "Occupational Employment Survey, U.S. Dept. of Labor (2001) " "(27–2042—Musicians and Singers). See also National Endowment for " "the Arts, <citetitle>More Than One in a Blue Moon</citetitle> (2000)." msgstr "" #. f3 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2975 msgid "" "Douglas Lichtman makes a related point in <quote>KaZaA and " "Punishment,</quote> <citetitle>Wall Street Journal</citetitle>, 10 September " "2003, A24." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2959 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><part><chapter><para> #: freeculture.xml:2982 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><part><chapter><blockquote><para> #: freeculture.xml:2989 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><part><chapter><para> #: freeculture.xml:2996 msgid "" "Jesse's parents betray a certain pride in their reluctant activist. As his " "father told me, Jesse <quote>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.</quote>" msgstr "" #. type: Content of: <book><part><chapter><title> #: freeculture.xml:3011 msgid "Chapter Four: <quote>Pirates</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:3012 msgid "in development of content industry" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:3015 msgid "" "<emphasis role='strong'>If <quote>piracy</quote> means</emphasis> using the " "creative property of others without their permission—if <quote>if " "value, then right</quote> is true—then the history of the content " "industry is a history of piracy. Every important sector of <quote>big " "media</quote> 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><part><chapter><section><title> #: freeculture.xml:3026 msgid "Film" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3027 freeculture.xml:3028 msgid "Hollywood film industry" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:3027 freeculture.xml:7811 freeculture.xml:15454 msgid "film industry" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:3029 freeculture.xml:7268 freeculture.xml:11195 freeculture.xml:11196 freeculture.xml:13332 freeculture.xml:13814 msgid "patents" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3029 msgid "on film technology" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3033 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> I am grateful to Peter DiMauro " "for pointing me to this extraordinary history. See also Siva Vaidhyanathan, " "<citetitle>Copyrights and Copywrongs</citetitle>, 87–93, which details " "Edison's <quote>adventures</quote> with copyright and patent." msgstr "" #. PAGE BREAK 67 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3031 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 " "<quote>trust,</quote> 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><part><chapter><section><para> #: freeculture.xml:3049 msgid "As one commentator tells one part of the story," msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:3053 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 "" #. type: Content of: <book><part><chapter><section><blockquote><indexterm><primary> #: freeculture.xml:3061 msgid "Fox, William" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><indexterm><primary> #: freeculture.xml:3062 msgid "General Film Company" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:3063 freeculture.xml:3367 freeculture.xml:4550 freeculture.xml:10457 msgid "Picker, Randal C." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:3087 freeculture.xml:4549 freeculture.xml:10174 freeculture.xml:10287 msgid "broadcast flag" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:3076 msgid "" "J. A. Aberdeen, <citetitle>Hollywood Renegades: The Society of Independent " "Motion Picture Producers</citetitle> (Cobblestone Entertainment, 2000) and " "expanded texts posted at <quote>The Edison Movie Monopoly: The Motion " "Picture Patents Company vs. the Independent Outlaws,</quote> 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, <quote>From Edison " "to the Broadcast Flag: Mechanisms of Consent and Refusal and the " "Propertization of Copyright</quote> (September 2002), University of Chicago " "Law School, James M. Olin Program in Law and Economics, Working Paper " "No. 159. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:3065 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\"/>" msgstr "" #. f3 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3099 msgid "" "Marc Wanamaker, <quote>The First Studios,</quote> <citetitle>The Silents " "Majority</citetitle>, archived at <ulink " "url=\"http://free-culture.cc/notes/\">link #12</ulink>." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3092 msgid "" "The Napsters of those days, the <quote>independents,</quote> were companies " "like Fox. And no less than today, these independents were vigorously " "resisted. <quote>Shooting was disrupted by machinery stolen, and " "<quote>accidents</quote> resulting in loss of negatives, equipment, " "buildings and sometimes life and limb frequently " "occurred.</quote><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><part><chapter><section><para> #: freeculture.xml:3110 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 <quote>limited</quote> 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><part><chapter><section><title> #: freeculture.xml:3122 msgid "Recorded Music" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3123 freeculture.xml:4314 msgid "on music recordings" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3125 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><part><chapter><section><indexterm><primary> #: freeculture.xml:3128 msgid "Fourneaux, Henri" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3129 msgid "Russel, Phil" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3131 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 <quote>Happy " "Mose,</quote> 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><part><chapter><section><indexterm><primary> #: freeculture.xml:3140 freeculture.xml:3282 msgid "Beatles" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3142 msgid "" "But what if I wanted to record <quote>Happy Mose,</quote> 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 <quote>public " "performance</quote> 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 "" #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para><indexterm><primary> #: freeculture.xml:3160 freeculture.xml:3167 freeculture.xml:3184 msgid "Kittredge, Alfred" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3163 msgid "" "The composers (and publishers) were none too happy about this capacity to " "pirate. As South Dakota senator Alfred Kittredge put it, <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:3178 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 <citetitle>Legislative History of the Copyright " "Act</citetitle>, E. Fulton Brylawski and Abe Goldman, eds. (South " "Hackensack, N.J.: Rothman Reprints, 1976). <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:3171 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3189 msgid "Sousa, John Philip" msgstr "" #. f5 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3195 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><part><chapter><section><para><footnote><para> #: freeculture.xml:3201 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><part><chapter><section><para><footnote><para> #: freeculture.xml:3208 msgid "" "To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of " "John Philip Sousa, composer)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3191 msgid "" "The innovators who developed the technology to record other people's works " "were <quote>sponging upon the toil, the work, the talent, and genius of " "American composers,</quote><placeholder type=\"footnote\" id=\"0\"/> and the " "<quote>music publishing industry</quote> was thereby <quote>at the complete " "mercy of this one pirate.</quote><placeholder type=\"footnote\" id=\"1\"/> " "As John Philip Sousa put it, in as direct a way as possible, <quote>When " "they make money out of my pieces, I want a share of it.</quote><placeholder " "type=\"footnote\" id=\"2\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3213 msgid "American Graphophone Company" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3214 msgid "player pianos" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:3216 freeculture.xml:3217 freeculture.xml:4312 freeculture.xml:4313 freeculture.xml:4398 freeculture.xml:4399 freeculture.xml:7036 freeculture.xml:7129 freeculture.xml:7244 freeculture.xml:7245 freeculture.xml:10408 freeculture.xml:10409 freeculture.xml:10410 freeculture.xml:11190 freeculture.xml:11252 freeculture.xml:11464 freeculture.xml:11539 freeculture.xml:12209 freeculture.xml:12298 freeculture.xml:12368 freeculture.xml:12370 msgid "Congress, U.S." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3216 freeculture.xml:4312 freeculture.xml:4398 freeculture.xml:7129 freeculture.xml:7244 freeculture.xml:10408 msgid "on copyright laws" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3217 freeculture.xml:4313 freeculture.xml:10410 msgid "on recording industry" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3218 freeculture.xml:4315 freeculture.xml:10233 msgid "statutory licenses in" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3219 msgid "statutory license system in" msgstr "" #. f8 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3229 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><part><chapter><section><para><footnote><para> #: freeculture.xml:3240 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><part><chapter><section><para> #: freeculture.xml:3221 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 <quote>it is perfectly demonstrable that the introduction of " "automatic music players has not deprived any composer of anything he had " "before their introduction.</quote> 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 <quote>to consider first the " "interest of [the public], whom they represent, and whose servants they " "are.</quote> <quote>All talk about <quote>theft,</quote></quote> the general " "counsel of the American Graphophone Company wrote, <quote>is the merest " "claptrap, for there exists no property in ideas musical, literary or " "artistic, except as defined by statute.</quote><placeholder " "type=\"footnote\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3245 msgid "cover songs" msgstr "" #. PAGE BREAK 70 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3247 msgid "" "The law soon resolved this battle in favor of the composer " "<emphasis>and</emphasis> the recording artist. Congress amended the law to " "make sure that composers would be paid for the <quote>mechanical " "reproductions</quote> 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><part><chapter><section><indexterm><primary> #: freeculture.xml:3261 msgid "compulsory license" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3262 freeculture.xml:4320 freeculture.xml:10232 msgid "statutory licenses" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3264 msgid "" "American law ordinarily calls this a <quote>compulsory license,</quote> but " "I will refer to it as a <quote>statutory license.</quote> 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><section><section><para><indexterm><primary> #: freeculture.xml:3271 freeculture.xml:15046 msgid "Grisham, John" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3273 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." msgstr "" #. f10 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3298 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 " "<citetitle>Legislative History of the 1909 Copyright Act</citetitle>, " "E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman " "Reprints, 1976)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3284 msgid "" "But the law governing recordings gives recording artists less. And thus, in " "effect, the law <emphasis>subsidizes</emphasis> 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\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3309 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><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:3331 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><part><chapter><section><blockquote><para> #: freeculture.xml:3316 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><part><chapter><section><para> #: freeculture.xml:3342 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><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:3347 freeculture.xml:4513 msgid "Radio" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3348 freeculture.xml:4319 freeculture.xml:10412 msgid "radio broadcast and" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3351 msgid "Radio was also born of piracy." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:3366 msgid "Hand, Learned" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3357 msgid "" "See 17 <citetitle>United States Code</citetitle>, sections 106 and 110. At " "the beginning, record companies printed <quote>Not Licensed for Radio " "Broadcast</quote> 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 <citetitle>RCA Manufacturing " "Co</citetitle>. v. <citetitle>Whiteman</citetitle>, 114 F. 2d 86 (2nd " "Cir. 1940). See also Randal C. Picker, <quote>From Edison to the Broadcast " "Flag: Mechanisms of Consent and Refusal and the Propertization of " "Copyright,</quote> <citetitle>University of Chicago Law Review</citetitle> " "70 (2003): 281. <placeholder type=\"indexterm\" id=\"0\"/> <placeholder " "type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3354 msgid "" "When a radio station plays a record on the air, that constitutes a " "<quote>public performance</quote> 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:3373 freeculture.xml:4316 freeculture.xml:10309 msgid "music recordings played on" msgstr "" #. type: Content of: <book><part><chapter><para><indexterm><primary> #: freeculture.xml:3385 freeculture.xml:9466 freeculture.xml:9945 freeculture.xml:13084 msgid "Lovett, Lyle" msgstr "" #. PAGE BREAK 72 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3375 msgid "" "But when the radio station plays a record, it is not only performing a copy " "of the <emphasis>composer's</emphasis> work. The radio station is also " "performing a copy of the <emphasis>recording artist's</emphasis> work. It's " "one thing to have <quote>Happy Birthday</quote> 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><part><chapter><section><para> #: freeculture.xml:3390 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><part><chapter><para><indexterm><primary> #: freeculture.xml:3397 freeculture.xml:3914 freeculture.xml:6545 freeculture.xml:6561 msgid "Madonna" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3399 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><part><chapter><section><para> #: freeculture.xml:3405 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 <quote>protected</quote> " "right. The radio station thus gets to <emphasis>pirate</emphasis> the value " "of Madonna's work without paying her anything." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3418 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><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:3428 freeculture.xml:4519 msgid "Cable TV" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:3429 freeculture.xml:4334 freeculture.xml:8639 freeculture.xml:8679 freeculture.xml:15450 msgid "cable television" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3431 msgid "Cable TV was also born of a kind of piracy." msgstr "" #. PAGE BREAK 73 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3434 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><part><chapter><section><indexterm><primary> #: freeculture.xml:3444 msgid "Anello, Douglas" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3445 msgid "Burdick, Quentin" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:3446 freeculture.xml:3457 msgid "Hyde, Rosel H." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3452 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). <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. f14 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3464 msgid "" "Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello, " "general counsel of the National Association of Broadcasters)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3448 msgid "" "Broadcasters and copyright owners were quick to attack this theft. Rosel " "Hyde, chairman of the FCC, viewed the practice as a kind of <quote>unfair " "and potentially destructive competition.</quote><placeholder " "type=\"footnote\" id=\"0\"/> There may have been a <quote>public " "interest</quote> 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, <quote>Does public interest dictate that " "you use somebody else's property?</quote><placeholder type=\"footnote\" " "id=\"1\"/> As another broadcaster put it," msgstr "" #. f15 #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:3475 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><part><chapter><section><blockquote><para> #: freeculture.xml:3471 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><part><chapter><section><para> #: freeculture.xml:3481 msgid "Again, the demand of the copyright holders seemed reasonable enough:" msgstr "" #. f16 #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:3490 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><part><chapter><section><blockquote><para> #: freeculture.xml:3485 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 "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:3496 freeculture.xml:3504 msgid "Heston, Charlton" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3502 msgid "" "Copyright Law Revision—CATV, 209 (statement of Charlton Heston, " "president of the Screen Actors Guild). <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3498 msgid "" "These were <quote>free-ride[rs],</quote> Screen Actor's Guild president " "Charlton Heston said, who were <quote>depriving actors of " "compensation.</quote><placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3509 msgid "" "But again, there was another side to the debate. As Assistant Attorney " "General Edwin Zimmerman put it," msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para><indexterm><primary> #: freeculture.xml:3525 freeculture.xml:3527 msgid "Zimmerman, Edwin" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:3523 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><part><chapter><section><blockquote><para> #: freeculture.xml:3514 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><part><chapter><section><para> #: freeculture.xml:3531 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><part><chapter><section><para> #: freeculture.xml:3535 msgid "" "It took Congress almost thirty years before it resolved the question of " "whether cable companies had to pay for the content they " "<quote>pirated.</quote> 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 <quote>piracy</quote> of the value created " "by broadcasters' content." msgstr "" #. f19 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3554 msgid "" "See, for example, National Music Publisher's Association, <citetitle>The " "Engine of Free Expression: Copyright on the Internet—The Myth of Free " "Information</citetitle>, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #13</ulink>. <quote>The threat of " "piracy—the use of someone else's creative work without permission or " "compensation—has grown with the Internet.</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3549 msgid "" "<emphasis role='strong'>These separate stories</emphasis> sing a common " "theme. If <quote>piracy</quote> 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 <emphasis>every</emphasis> 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><part><chapter><title> #: freeculture.xml:3571 msgid "Chapter Five: <quote>Piracy</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:3573 msgid "" "<emphasis role='strong'>There is piracy</emphasis> 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><part><chapter><para> #: freeculture.xml:3581 msgid "" "But as well as copy-shop piracy, there is another kind of " "<quote>taking</quote> 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 <quote>piracy,</quote> 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><part><chapter><section><title> #: freeculture.xml:3591 msgid "Piracy I" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:3592 freeculture.xml:3672 freeculture.xml:3722 freeculture.xml:15452 msgid "Asia, commercial piracy in" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:3593 freeculture.xml:4052 freeculture.xml:9946 freeculture.xml:10809 freeculture.xml:14841 freeculture.xml:15434 msgid "CDs" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3593 msgid "foreign piracy of" msgstr "" #. f1 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3601 msgid "" "See IFPI (International Federation of the Phonographic Industry), " "<citetitle>The Recording Industry Commercial Piracy Report 2003</citetitle>, " "July 2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#14</ulink>. See also Ben Hunt, <quote>Companies Warned on Music Piracy " "Risk,</quote> <citetitle>Financial Times</citetitle>, 14 February 2003, 11." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3595 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><part><chapter><section><para> #: freeculture.xml:3611 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><part><chapter><section><para> #: freeculture.xml:3617 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><part><chapter><section><para> #: freeculture.xml:3626 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><part><chapter><section><para> #: freeculture.xml:3637 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><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:3665 msgid "agricultural patents" msgstr "" #. type: Content of: <book><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:3666 freeculture.xml:13377 freeculture.xml:13869 freeculture.xml:13876 msgid "Drahos, Peter" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3650 msgid "" "See Peter Drahos with John Braithwaite, Information Feudalism: " "<citetitle>Who Owns the Knowledge Economy?</citetitle> (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\"/> <placeholder " "type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3645 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><section><section><para><footnote><para><indexterm><primary> #: freeculture.xml:3687 freeculture.xml:3971 freeculture.xml:15600 msgid "Liebowitz, Stan" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3680 msgid "" "For an analysis of the economic impact of copying technology, see Stan " "Liebowitz, <citetitle>Rethinking the Network Economy</citetitle> (New York: " "Amacom, 2002), 144–90. <quote>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.</quote> Ibid., 149. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3674 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><part><chapter><section><para> #: freeculture.xml:3691 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, <quote>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?</quote> 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><part><chapter><section><para> #: freeculture.xml:3705 msgid "" "This argument is still very weak. However, although copyright is a property " "right of a very special sort, it <emphasis>is</emphasis> 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 " "<quote>take</quote> 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 <quote>property</quote> " "means." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:3723 freeculture.xml:15453 msgid "in Asia" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3724 msgid "open-source software" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:3724 freeculture.xml:3725 freeculture.xml:13688 freeculture.xml:14280 msgid "free software/open-source software (FS/OSS)" msgstr "" #. type: Content of: <book><chapter><section><section><para><indexterm><primary> #: freeculture.xml:3726 freeculture.xml:3756 freeculture.xml:12140 freeculture.xml:13703 freeculture.xml:14336 msgid "GNU/Linux operating system" msgstr "" #. type: Content of: <book><chapter><section><section><para><indexterm><primary> #: freeculture.xml:3727 freeculture.xml:3757 freeculture.xml:12142 freeculture.xml:13704 freeculture.xml:14337 msgid "Linux operating system" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3728 msgid "competitive strategies of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3729 msgid "Windows" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3730 msgid "international software piracy of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3731 msgid "Windows operating system of" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3733 msgid "" "Finally, we could try to excuse this piracy with the argument that the " "piracy actually helps the copyright owner. When the Chinese " "<quote>steal</quote> 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." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:3745 freeculture.xml:4808 freeculture.xml:5032 freeculture.xml:6529 freeculture.xml:6605 freeculture.xml:6742 freeculture.xml:7159 freeculture.xml:14368 msgid "law" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:3745 freeculture.xml:14368 msgid "databases of case reports in" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3747 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><part><chapter><section><indexterm><primary> #: freeculture.xml:3754 msgid "Netscape" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3755 msgid "Internet Explorer" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3759 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><part><chapter><section><para> #: freeculture.xml:3773 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><part><chapter><section><para> #: freeculture.xml:3783 msgid "" "But as the examples from the four chapters that introduced this part " "suggest, even if some piracy is plainly wrong, not all <quote>piracy</quote> " "is. Or at least, not all <quote>piracy</quote> is wrong if that term is " "understood in the way it is increasingly used today. Many kinds of " "<quote>piracy</quote> 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 <quote>piracy</quote> in that sense of the " "term." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3792 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><part><chapter><section><para> #: freeculture.xml:3798 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><part><chapter><section><para> #: freeculture.xml:3804 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><part><chapter><section><title> #: freeculture.xml:3810 msgid "Piracy II" msgstr "" #. f4 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3815 msgid "" "<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 " "Eng. Rep. 1274 (1777)." msgstr "" #. PAGE BREAK 80 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3812 msgid "" "The key to the <quote>piracy</quote> that the law aims to quash is a use " "that <quote>rob[s] the author of [his] profit.</quote><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><part><chapter><section><para><indexterm><primary> #: freeculture.xml:3824 msgid "Fanning, Shawn" msgstr "" #. type: Content of: <book><part><chapter><section><para><indexterm><primary> #: freeculture.xml:3843 freeculture.xml:8877 msgid "Christensen, Clayton M." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3833 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> See Clayton M. Christensen, " "<citetitle>The Innovator's Dilemma: The Revolutionary National Bestseller " "That Changed the Way We Do Business</citetitle> (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, " "<citetitle>Future</citetitle>, 89–92, 139. <placeholder " "type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3824 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> <placeholder " "type=\"indexterm\" id=\"3\"/> 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=\"4\"/>), Shawn Fanning and crew had simply put " "together components that had been developed independently." msgstr "" #. type: Content of: <book><part><chapter><section><para><indexterm><primary> #: freeculture.xml:3848 msgid "Kazaa" msgstr "" #. type: Content of: <book><part><chapter><section><para><indexterm><secondary> #: freeculture.xml:3849 msgid "number of registrations on" msgstr "" #. type: Content of: <book><part><chapter><section><para><indexterm><secondary> #: freeculture.xml:3850 msgid "replacement of" msgstr "" #. f6 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3856 msgid "" "See Carolyn Lochhead, <quote>Silicon Valley Dream, Hollywood " "Nightmare,</quote> <citetitle>San Francisco Chronicle</citetitle>, 24 " "September 2002, A1; <quote>Rock 'n' Roll Suicide,</quote> <citetitle>New " "Scientist</citetitle>, 6 July 2002, 42; Benny Evangelista, <quote>Napster " "Names CEO, Secures New Financing,</quote> <citetitle>San Francisco " "Chronicle</citetitle>, 23 May 2003, C1; <quote>Napster's Wake-Up " "Call,</quote> <citetitle>Economist</citetitle>, 24 June 2000, 23; John " "Naughton, <quote>Hollywood at War with the Internet</quote> (London) " "<citetitle>Times</citetitle>, 26 July 2002, 18." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3848 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> 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=\"3\"/> 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><part><chapter><section><para><footnote><para> #: freeculture.xml:3879 msgid "" "See Ipsos-Insight, <citetitle>TEMPO: Keeping Pace with Online Music " "Distribution</citetitle> (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><part><chapter><section><para><footnote><para> #: freeculture.xml:3888 msgid "" "Amy Harmon, <quote>Industry Offers a Carrot in Online Music Fight,</quote> " "<citetitle>New York Times</citetitle>, 6 June 2003, A1." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3873 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 <citetitle>The New York Times</citetitle> " "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 <quote>taken</quote> 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><part><chapter><section><para> #: freeculture.xml:3897 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3905 msgid "four types of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3906 msgid "range of content on" msgstr "" #. PAGE BREAK 81 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3909 msgid "" "File sharers share different kinds of content. We can divide these different " "kinds into four types." msgstr "" #. A. #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:3917 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." msgstr "" #. B. #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:3927 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><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:3938 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 <quote>recalling</quote> 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><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:3955 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><part><chapter><section><para> #: freeculture.xml:3962 msgid "How do these different types of sharing balance out?" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3970 msgid "" "See Liebowitz, <citetitle>Rethinking the Network Economy</citetitle>, " "148–49. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3965 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><part><chapter><section><para> #: freeculture.xml:3981 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 <quote>theft</quote> that is " "<quote>devastating</quote> the industry." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:3988 freeculture.xml:3997 freeculture.xml:4367 freeculture.xml:8434 freeculture.xml:8463 freeculture.xml:10230 freeculture.xml:15158 msgid "cassette recording" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:3988 freeculture.xml:4367 freeculture.xml:8434 freeculture.xml:8463 freeculture.xml:10230 freeculture.xml:10231 freeculture.xml:15158 freeculture.xml:15159 msgid "VCRs" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:3998 freeculture.xml:4537 msgid "DAT (digital audio tape)" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3997 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/> See Cap Gemini Ernst & Young, <citetitle>Technology Evolution " "and the Music Industry's Business Model Crisis</citetitle> (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 <quote>Home taping is " "killing music.</quote> 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, " "<citetitle>Copyright and Home Copying: Technology Challenges the " "Law</citetitle>, OTA-CIT-422 (Washington, D.C.: U.S. Government Printing " "Office, October 1989), 145–56." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3990 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, " "<quote>Rather than exploiting this new, popular technology, the labels " "fought it.</quote><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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:4016 msgid "MTV" msgstr "" #. f11 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4027 msgid "U.S. Congress, <citetitle>Copyright and Home Copying</citetitle>, 4." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4018 msgid "" "Yet soon thereafter, and before Congress was given an opportunity to enact " "regulation, MTV was launched, and the industry had a record " "turnaround. <quote>In the end,</quote> Cap Gemini concludes, <quote>the " "<quote>crisis</quote> … 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.</quote><placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4032 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 " "<emphasis>how</emphasis> harmful type A sharing is, and how beneficial the " "other types of sharing are." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4042 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 " "<quote>net harm</quote> 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 <emphasis>static</emphasis> reason to resist them." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4052 msgid "sales levels of" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4054 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><part><chapter><section><para><footnote><para> #: freeculture.xml:4063 msgid "" "See Recording Industry Association of America, <citetitle>2002 Yearend " "Statistics</citetitle>, 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, <citetitle>Some Facts About Music Piracy</citetitle>, 25 June 2003, " "available at <ulink url=\"http://free-culture.cc/notes/\">link #16</ulink>: " "<quote>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).</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:4090 msgid "Black, Jane" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4087 msgid "" "Jane Black, <quote>Big Music's Broken Record,</quote> 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><part><chapter><section><para> #: freeculture.xml:4059 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. <quote>From 1999 to " "2001, the average price of a CD rose 7.2 percent, from $13.04 to " "$14.19.</quote><placeholder type=\"footnote\" id=\"1\"/> Competition from " "other forms of media could also account for some of the decline. As Jane " "Black of <citetitle>BusinessWeek</citetitle> notes, <quote>The soundtrack to " "the film <citetitle>High Fidelity</citetitle> has a list price of " "$18.98. You could get the whole movie [on DVD] for " "$19.99.</quote><placeholder type=\"footnote\" id=\"2\"/>" msgstr "" #. PAGE BREAK 84 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4105 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><part><chapter><section><para> #: freeculture.xml:4113 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, <quote>What's the difference between downloading a " "song and stealing a CD?</quote>—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 <quote>rob[bed] the author of " "[his] profit</quote>—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 " "<quote>downloading a song and stealing a CD.</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4129 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><part><chapter><section><para><footnote><para> #: freeculture.xml:4141 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><part><chapter><section><para> #: freeculture.xml:4135 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 " "<emphasis>to the company</emphasis> to make it available." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:4154 freeculture.xml:4163 freeculture.xml:4184 freeculture.xml:4208 freeculture.xml:4732 freeculture.xml:6190 freeculture.xml:6195 freeculture.xml:6247 freeculture.xml:7230 freeculture.xml:7231 freeculture.xml:7618 freeculture.xml:7687 freeculture.xml:7975 freeculture.xml:14540 freeculture.xml:15270 freeculture.xml:15271 msgid "books" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:4154 freeculture.xml:4163 freeculture.xml:7230 freeculture.xml:15271 msgid "resales of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:4155 msgid "used record sales" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4163 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> 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, <citetitle>The Quiet Revolution: The " "Expansion of the Used Book Market</citetitle> (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, <quote>2002 Annual Survey Results,</quote> " "available at <ulink url=\"http://free-culture.cc/notes/\">link #20</ulink>." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4157 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, <emphasis>even if the content is still under " "copyright</emphasis>, 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><section><section><indexterm><secondary> #: freeculture.xml:4184 freeculture.xml:6190 freeculture.xml:6195 freeculture.xml:7231 freeculture.xml:15270 msgid "out of print" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:4185 msgid "Bernstein, Leonard" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4186 freeculture.xml:7688 freeculture.xml:7976 msgid "books on" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4188 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 <quote>Two Love Songs,</quote> 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><part><chapter><section><para> #: freeculture.xml:4201 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 "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:4208 freeculture.xml:14540 msgid "free on-line releases of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:4209 msgid "Doctorow, Cory" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:4210 msgid "Down and Out in the Magic Kingdom (Doctorow)" msgstr "" #. PAGE BREAK 86 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4212 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, <citetitle>Down and Out in the Magic " "Kingdom</citetitle>, 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 <quote>real</quote> 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><part><chapter><section><para> #: freeculture.xml:4230 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><part><chapter><section><para> #: freeculture.xml:4236 msgid "" "The point throughout is this: While the recording industry understandably " "says, <quote>This is how much we've lost,</quote> we must also ask, " "<quote>How much has society gained from p2p sharing? What are the " "efficiencies? What is the content that otherwise would be " "unavailable?</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4244 msgid "" "For unlike the piracy I described in the first section of this chapter, much " "of the <quote>piracy</quote> that file sharing enables is plainly legal and " "good. And like the piracy I described in chapter <xref xrefstyle=\"select: " "labelnumber\" linkend=\"pirates\"/>, 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><part><chapter><section><para> #: freeculture.xml:4258 msgid "" "<quote>But isn't the war just a war against illegal sharing? Isn't the " "target just what you call type A sharing?</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4261 msgid "zero tolerance in" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4262 msgid "infringing material blocked by" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4263 msgid "infringement protections in" msgstr "" #. f17 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4277 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, " "<citetitle>All the Rave: The Rise and Fall of Shawn Fanning's " "Napster</citetitle> (New York: Crown Business, 2003), 269–82." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4265 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 <quote>down to " "zero.</quote><placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4290 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><part><chapter><section><para> #: freeculture.xml:4302 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><part><chapter><section><indexterm><primary> #: freeculture.xml:4311 msgid "composers, copyright protections of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4318 msgid "copyright protections in" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:4321 msgid "composer's rights vs. producers' rights in" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4323 msgid "" "So, as we've seen, when <quote>mechanical reproduction</quote> 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 <quote>creative property</quote> 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><part><chapter><section><para> #: freeculture.xml:4336 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4344 msgid "two central goals of" msgstr "" #. PAGE BREAK 88 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4348 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 " "<emphasis>compensation</emphasis> without giving the past (broadcasters) " "control over the future (cable)." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:4366 msgid "Betamax" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:4368 freeculture.xml:8203 freeculture.xml:8347 freeculture.xml:8412 freeculture.xml:8524 msgid "Sony" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4368 msgid "Betamax technology developed by" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4370 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 <quote>record</quote> 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><part><chapter><section><para> #: freeculture.xml:4384 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 <quote>copy me</quote> 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4399 freeculture.xml:4400 msgid "on VCR technology" msgstr "" #. f18 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4409 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><part><chapter><section><para><footnote><para> #: freeculture.xml:4421 msgid "Copyright Infringements (Audio and Video Recorders), 475." msgstr "" #. f20 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4426 msgid "" "<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony " "Corp. of America</citetitle>, 480 F. Supp. 429, (C.D. Cal., 1979)." msgstr "" #. f21 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4437 msgid "" "Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack " "Valenti)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4402 msgid "" "MPAA president Jack Valenti became the studios' most vocal champion. Valenti " "called VCRs <quote>tapeworms.</quote> He warned, <quote>When there are 20, " "30, 40 million of these VCRs in the land, we will be invaded by millions of " "<quote>tapeworms,</quote> eating away at the very heart and essence of the " "most precious asset the copyright owner has, his " "copyright.</quote><placeholder type=\"footnote\" id=\"0\"/> <quote>One does " "not have to be trained in sophisticated marketing and creative " "judgment,</quote> he told Congress, <quote>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.</quote><placeholder type=\"footnote\" id=\"1\"/> Indeed, as surveys " "would later show, 45 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 <quote>fair.</quote> By <quote>allowing VCR owners " "to copy freely by the means of an exemption from copyright infringement " "without creating a mechanism to compensate copyright owners,</quote> Valenti " "testified, Congress would <quote>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.</quote><placeholder type=\"footnote\" id=\"3\"/>" msgstr "" #. f22 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4456 msgid "" "<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony " "Corp. of America</citetitle>, 659 F. 2d 963 (9th Cir. 1981)." msgstr "" #. type: Content of: <book><part><chapter><section><para><indexterm><primary> #: freeculture.xml:4459 msgid "Kozinski, Alex" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4444 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 <quote>Hollywood Circuit</quote>—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 <quote>the Boston Strangler " "of the American film industry</quote> (worse yet, it was a " "<emphasis>Japanese</emphasis> Boston Strangler of the American film " "industry)—was an illegal technology.<placeholder type=\"footnote\" " "id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. PAGE BREAK 90 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4463 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><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:4482 msgid "" "<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City " "Studios, Inc</citetitle>., 464 U.S. 417, 431 (1984)." msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:4472 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><part><chapter><section><para> #: freeculture.xml:4488 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 " "<quote>taking</quote> notwithstanding. If we put these cases together, a " "pattern is clear:" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry> #: freeculture.xml:4499 msgid "CASE" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry> #: freeculture.xml:4500 msgid "WHOSE VALUE WAS <quote>PIRATED</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry> #: freeculture.xml:4501 msgid "RESPONSE OF THE COURTS" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry> #: freeculture.xml:4502 msgid "RESPONSE OF CONGRESS" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4507 msgid "Recordings" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4508 msgid "Composers" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4509 freeculture.xml:4521 freeculture.xml:4527 msgid "No protection" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4510 freeculture.xml:4522 msgid "Statutory license" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4514 msgid "Recording artists" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4515 msgid "N/A" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4516 freeculture.xml:4528 msgid "Nothing" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4520 msgid "Broadcasters" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4525 msgid "VCR" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4526 msgid "Film creators" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4537 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> 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 <citetitle>United States " "Code</citetitle>), 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, " "<citetitle>Future</citetitle>, 71. See also Picker, <quote>From Edison to " "the Broadcast Flag,</quote> <citetitle>University of Chicago Law " "Review</citetitle> 70 (2003): 293–96. <placeholder type=\"indexterm\" " "id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4535 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 " "<quote>free ride</quote> on someone else's work." msgstr "" #. PAGE BREAK 91 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4557 msgid "" "In <emphasis>none</emphasis> of these cases did either the courts or " "Congress eliminate all free riding. In <emphasis>none</emphasis> 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 <quote>piracy.</quote> In every " "case, Congress acted to recognize some of the legitimacy in the behavior of " "the <quote>pirates.</quote> 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><part><chapter><section><para> #: freeculture.xml:4570 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4581 msgid "on balance of interests in copyright law" msgstr "" #. f25 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4588 msgid "" "<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City " "Studios, Inc</citetitle>., 464 U.S. 417, (1984)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4583 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 " "<quote>has never accorded the copyright owner complete control over all " "possible uses of his work.</quote><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 <emphasis>after</emphasis> a technology has matured, or settled " "into the mix of technologies that facilitate the distribution of content." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4599 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 <quote>stealing</quote> 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><part><chapter><section><para><footnote><para> #: freeculture.xml:4623 msgid "" "John Schwartz, <quote>New Economy: The Attack on Peer-to-Peer Software " "Echoes Past Efforts,</quote> <citetitle>New York Times</citetitle>, 22 " "September 2003, C3." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4615 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 " "<quote>potential public benefits,</quote> as John Schwartz writes in " "<citetitle>The New York Times</citetitle>, <quote>could be delayed in the " "P2P fight.</quote><placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4628 msgid "" "<emphasis role='strong'>Yet when anyone</emphasis> begins to talk about " "<quote>balance,</quote> the copyright warriors raise a different " "argument. <quote>All this hand waving about balance and incentives,</quote> " "they say, <quote>misses a fundamental point. Our content,</quote> the " "warriors insist, <quote>is our <emphasis>property</emphasis>. Why should we " "wait for Congress to <quote>rebalance</quote> 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?</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4641 msgid "" "<quote>It is <emphasis>our property</emphasis>,</quote> the warriors " "insist. <quote>And it should be protected just as any other property is " "protected.</quote>" msgstr "" #. type: Content of: <book><part><title> #: freeculture.xml:4650 msgid "<quote>Property</quote>" msgstr "" #. PAGE BREAK 94 #. type: Content of: <book><part><partintro><para> #: freeculture.xml:4655 msgid "" "<emphasis role='strong'>The copyright warriors</emphasis> 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><part><partintro><para> #: freeculture.xml:4662 msgid "" "But in ordinary language, to call a copyright a <quote>property</quote> " "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 " "<emphasis>idea</emphasis> 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 "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:4673 freeculture.xml:6488 freeculture.xml:14527 msgid "Jefferson, Thomas" msgstr "" #. f1 #. type: Content of: <book><part><partintro><para><footnote><para> #: freeculture.xml:4688 msgid "" "Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in " "<citetitle>The Writings of Thomas Jefferson</citetitle>, vol. 6 (Andrew " "A. Lipscomb and Albert Ellery Bergh, eds., 1903), 330, 333–34." msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:4675 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), <quote>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.</quote><placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><partintro><indexterm><secondary> #: freeculture.xml:4693 msgid "intangibility of" msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:4695 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><part><partintro><para><footnote><para> #: freeculture.xml:4708 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, " "<quote>What Is Property? Putting the Pieces Back Together,</quote> " "<citetitle>Arizona Law Review</citetitle> 45 (2003): 373, 429 n. 241." msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:4703 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 " "<quote>property</quote> in its proper context.<placeholder type=\"footnote\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:4718 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 <quote>copyright material " "is property</quote> 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—<quote>copyright material is " "property</quote>— 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><part><chapter><title> #: freeculture.xml:4731 msgid "Chapter Six: Founders" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:4732 msgid "English copyright law developed for" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4735 msgid "England, copyright laws developed in" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:4736 freeculture.xml:14064 msgid "United Kingdom" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:4736 msgid "history of copyright law in" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4737 freeculture.xml:4907 msgid "Branagh, Kenneth" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4738 msgid "Henry V" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4740 freeculture.xml:4872 msgid "Romeo and Juliet (Shakespeare)" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4742 msgid "" "<emphasis role='strong'>William Shakespeare</emphasis> wrote " "<citetitle>Romeo and Juliet</citetitle> 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: <quote>I liked it, " "but Shakespeare is so full of clichés.</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4753 freeculture.xml:4837 freeculture.xml:4946 freeculture.xml:5079 msgid "Conger" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4754 msgid "Tonson, Jacob" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:4760 msgid "Jonson, Ben" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:4761 msgid "Dryden, John" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:4760 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/> Jacob Tonson is typically remembered for his associations with " "prominent eighteenth-century literary figures, especially John Dryden, and " "for his handsome <quote>definitive editions</quote> of classic works. In " "addition to <citetitle>Romeo and Juliet</citetitle>, 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, <quote>Jacob Tonson, Bookseller,</quote> " "<citetitle>American Scholar</citetitle> 61:3 (1992): 424–31." msgstr "" #. f2 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:4773 msgid "" "Lyman Ray Patterson, <citetitle>Copyright in Historical " "Perspective</citetitle> (Nashville: Vanderbilt University Press, 1968), " "151–52." msgstr "" #. PAGE BREAK 97 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4756 msgid "" "In 1774, almost 180 years after <citetitle>Romeo and Juliet</citetitle> was " "written, the <quote>copy-right</quote> 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 " "<quote>copy</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:4785 freeculture.xml:4838 freeculture.xml:4978 freeculture.xml:5159 freeculture.xml:5315 msgid "British Parliament" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4787 freeculture.xml:7168 msgid "renewability of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:4788 freeculture.xml:4840 freeculture.xml:4884 freeculture.xml:4991 freeculture.xml:5078 freeculture.xml:7158 msgid "Statute of Anne (1710)" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:4799 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> As Siva Vaidhyanathan nicely " "argues, it is erroneous to call this a <quote>copyright law.</quote> See " "Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 40." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4790 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 " "<quote>copyright</quote> 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, <citetitle>Romeo and " "Juliet</citetitle> 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><part><chapter><indexterm><secondary> #: freeculture.xml:4808 freeculture.xml:5032 msgid "common vs. positive" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4809 freeculture.xml:5033 msgid "positive law" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4810 msgid "Licensing Act (1662)" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4812 msgid "" "The reason is that the English hadn't yet agreed on what a " "<quote>copyright</quote> 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 <quote>Stationers,</quote> had an exclusive right to print books." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4823 freeculture.xml:5031 freeculture.xml:5102 freeculture.xml:5202 msgid "common law" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4825 msgid "" "There was no <emphasis>positive</emphasis> 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 " "<quote>positive law.</quote> We call the words from judges <quote>common " "law.</quote> 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4839 freeculture.xml:5068 freeculture.xml:5176 freeculture.xml:5254 msgid "Scottish publishers" msgstr "" #. PAGE BREAK 98 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4842 msgid "" "This question was important to the publishers, or " "<quote>booksellers,</quote> 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><part><chapter><indexterm><secondary> #: freeculture.xml:4853 msgid "as narrow monopoly right" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4855 msgid "" "The Statute of Anne granted the author or <quote>proprietor</quote> 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 " "<quote>expired,</quote> 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><part><chapter><para> #: freeculture.xml:4865 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 <emphasis>at " "all?</emphasis>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4874 msgid "" "For the booksellers, and the authors whom they represented, had a very " "strong claim. Take <citetitle>Romeo and Juliet</citetitle> 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 <quote>steal</quote> Shakespeare's work?" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4886 msgid "" "The answer comes in two parts. We first need to see something special about " "the notion of <quote>copyright</quote> that existed at the time of the " "Statute of Anne. Second, we have to see something important about " "<quote>booksellers.</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4891 freeculture.xml:7679 freeculture.xml:7850 msgid "usage restrictions attached to" msgstr "" #. PAGE BREAK 99 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4893 msgid "" "First, about copyright. In the last three hundred years, we have come to " "apply the concept of <quote>copyright</quote> 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 <quote>copy-right</quote> 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 <emphasis>used</emphasis>. 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><part><chapter><para> #: freeculture.xml:4910 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 " "<quote>copy-right</quote> was only an exclusive right to print—no " "less, of course, but also no more." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4919 msgid "Henry VIII, King of England" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4920 msgid "monopoly, copyright as" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4921 msgid "Statute of Monopolies (1656)" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4923 msgid "" "Even that limited right was viewed with skepticism by the British. They had " "had a long and ugly experience with <quote>exclusive rights,</quote> " "especially <quote>exclusive rights</quote> 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><part><chapter><para> #: freeculture.xml:4936 msgid "" "Thus the <quote>copy-right,</quote> when viewed as a monopoly right, was " "naturally viewed as a right that should be limited. (However convincing the " "claim that <quote>it's my property, and I should have it forever,</quote> " "try sounding convincing when uttering, <quote>It's my monopoly, and I should " "have it forever.</quote>) 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4944 freeculture.xml:5237 msgid "Milton, John" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4945 msgid "booksellers, English" msgstr "" #. f4 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:4964 msgid "" "Philip Wittenberg, <citetitle>The Protection and Marketing of Literary " "Property</citetitle> (New York: J. Messner, Inc., 1937), 31." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4949 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 <quote>old patentees and monopolizers in the trade of " "book-selling</quote>; they were <quote>men who do not therefore labour in an " "honest profession to which learning is indetted.</quote><placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4968 msgid "Enlightenment" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4969 msgid "knowledge, freedom of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4971 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><part><chapter><para> #: freeculture.xml:4980 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><part><chapter><indexterm><secondary> #: freeculture.xml:4993 freeculture.xml:5128 freeculture.xml:5222 freeculture.xml:11215 msgid "in perpetuity" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4995 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><part><chapter><para> #: freeculture.xml:5004 msgid "" "Parliament rejected their requests. As one pamphleteer put it, in words that " "echo today," msgstr "" #. f5 #. type: Content of: <book><part><chapter><blockquote><para><footnote><para> #: freeculture.xml:5019 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, <citetitle>Eldred</citetitle> " "v. <citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01-618)." msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:5009 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><part><chapter><para> #: freeculture.xml:5035 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 <quote>property</quote> 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><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:5057 freeculture.xml:5067 freeculture.xml:5110 msgid "Patterson, Raymond" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5057 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/> Lyman Ray Patterson, <quote>Free Speech, Copyright, and Fair " "Use,</quote> <citetitle>Vanderbilt Law Review</citetitle> 40 (1987): 28. For " "a wonderfully compelling account, see Vaidhyanathan, 37–48." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5051 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, <quote>The publishers " "… had as much concern for authors as a cattle rancher has for " "cattle.</quote><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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5066 freeculture.xml:5175 msgid "Donaldson, Alexander" msgstr "" #. f7 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5074 msgid "" "For a compelling account, see David Saunders, <citetitle>Authorship and " "Copyright</citetitle> (London: Routledge, 1992), 62–69." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5070 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5080 msgid "Boswell, James" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5081 msgid "Erskine, Andrew" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:5090 freeculture.xml:15697 msgid "Rose, Mark" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5088 msgid "" "Mark Rose, <citetitle>Authors and Owners</citetitle> (Cambridge: Harvard " "University Press, 1993), 92. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. f9 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5099 msgid "Ibid., 93." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5083 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 " "<quote>of standard works whose copyright term had expired,</quote> at least " "under the Statute of Anne.<placeholder type=\"footnote\" id=\"0\"/> " "Donaldson's publishing house prospered and became <quote>something of a " "center for literary Scotsmen.</quote> <quote>[A]mong them,</quote> Professor " "Mark Rose writes, was <quote>the young James Boswell who, together with his " "friend Andrew Erskine, published an anthology of contemporary Scottish poems " "with Donaldson.</quote><placeholder type=\"footnote\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5110 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> Lyman Ray Patterson, " "<citetitle>Copyright in Historical Perspective</citetitle>, 167 (quoting " "Borwell)." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5104 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 <quote>of the most popular English books, in defiance of the " "supposed common law right of Literary Property.</quote><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><part><chapter><indexterm><primary> #: freeculture.xml:5119 msgid "Millar v. Taylor" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5121 msgid "" "The London booksellers quickly brought suit to block <quote>piracy</quote> " "like Donaldson's. A number of actions were successful against the " "<quote>pirates,</quote> the most important early victory being " "<citetitle>Millar</citetitle> v. <citetitle>Taylor</citetitle>." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5127 freeculture.xml:5181 msgid "Thomson, James" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5129 msgid "Seasons, The (Thomson)" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5130 msgid "Taylor, Robert" msgstr "" #. f11 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5139 msgid "" "Howard B. Abrams, <quote>The Historic Foundation of American Copyright Law: " "Exploding the Myth of Common Law Copyright,</quote> <citetitle>Wayne Law " "Review</citetitle> 29 (1983): 1152." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5132 msgid "" "Millar was a bookseller who in 1729 had purchased the rights to James " "Thomson's poem <quote>The Seasons.</quote> 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><part><chapter><para> #: freeculture.xml:5146 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 <quote>pirates.</quote> 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><part><chapter><para> #: freeculture.xml:5161 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><part><chapter><para> #: freeculture.xml:5178 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><part><chapter><indexterm><primary> #: freeculture.xml:5182 msgid "Beckett, Thomas" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5183 freeculture.xml:5290 msgid "House of Lords" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:5184 msgid "House of Lords vs." msgstr "" #. f12 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5190 msgid "Ibid., 1156." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5186 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 <citetitle>Millar</citetitle>, 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><part><chapter><indexterm><primary> #: freeculture.xml:5201 msgid "Donaldson v. Beckett" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5204 msgid "" "As few legal cases ever do, <citetitle>Donaldson</citetitle> " "v. <citetitle>Beckett</citetitle> 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><part><chapter><para> #: freeculture.xml:5215 msgid "" "The House of Lords was an odd institution. Legal questions were presented to " "the House and voted upon first by the <quote>law lords,</quote> 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 "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:5223 freeculture.xml:5291 msgid "English legal establishment of" msgstr "" #. PAGE BREAK 104 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5225 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><part><chapter><indexterm><primary> #: freeculture.xml:5234 msgid "Bacon, Francis" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5235 msgid "Bunyan, John" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5236 msgid "Johnson, Samuel" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5240 msgid "" "<quote>The public domain.</quote> Before the case of " "<citetitle>Donaldson</citetitle> v. <citetitle>Beckett</citetitle>, 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." msgstr "" #. f13 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5266 msgid "Rose, 97." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5256 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 <quote>pirate publishers</quote> did their work, people celebrated " "the decision in the streets. As the <citetitle>Edinburgh " "Advertiser</citetitle> reported, <quote>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.</quote> <quote>Great rejoicing in Edinburgh upon victory over " "literary property: bonfires and illuminations.</quote><placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5271 msgid "" "In London, however, at least among publishers, the reaction was equally " "strong in the opposite direction. The <citetitle>Morning " "Chronicle</citetitle> reported:" msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:5277 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><part><chapter><para> #: freeculture.xml:5294 msgid "" "<quote>Ruined</quote> 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 " "<emphasis>free</emphasis>. 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 " "<emphasis>free</emphasis> 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 " "<emphasis>competitive context</emphasis>, 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><part><chapter><para> #: freeculture.xml:5317 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><part><chapter><title> #: freeculture.xml:5334 msgid "Chapter Seven: Recorders" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:5335 freeculture.xml:7657 freeculture.xml:7771 freeculture.xml:7830 msgid "fair use and" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5336 msgid "documentary film" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5337 msgid "Else, Jon" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:5338 freeculture.xml:5481 freeculture.xml:7656 freeculture.xml:7689 freeculture.xml:7770 freeculture.xml:7832 msgid "fair use" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:5338 msgid "in documentary film" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:5339 msgid "fair use of copyrighted material in" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5341 msgid "" "<emphasis role='strong'>Jon Else</emphasis> 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><part><chapter><para> #: freeculture.xml:5348 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><part><chapter><indexterm><primary> #: freeculture.xml:5352 freeculture.xml:5416 msgid "Wagner, Richard" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5353 freeculture.xml:5430 msgid "San Francisco Opera" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5355 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." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5362 msgid "Simpsons, The" msgstr "" #. PAGE BREAK 107 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5364 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 <citetitle>The Simpsons</citetitle>. As Else judged it, " "this touch of cartoon helped capture the flavor of what was special about " "the scene." msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:5373 msgid "multiple copyrights associated with" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5375 msgid "" "Years later, when he finally got funding to complete the film, Else " "attempted to clear the rights for those few seconds of <citetitle>The " "Simpsons</citetitle>. For of course, those few seconds are copyrighted; and " "of course, to use copyrighted material you need the permission of the " "copyright owner, unless <quote>fair use</quote> or some other privilege " "applies." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5381 msgid "Gracie Films" msgstr "" #. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><indexterm><primary> #: freeculture.xml:5382 freeculture.xml:5503 msgid "Groening, Matt" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5384 msgid "" "Else called <citetitle>Simpsons</citetitle> 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." msgstr "" #. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><indexterm><primary> #: freeculture.xml:5390 freeculture.xml:5502 msgid "Fox (film company)" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5392 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." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5400 msgid "" "Then, as Else told me, <quote>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.</quote> And " "second, Fox <quote>wanted ten thousand dollars as a licensing fee for us to " "use this four-point-five seconds of … entirely unsolicited " "<citetitle>Simpsons</citetitle> which was in the corner of the shot.</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5407 msgid "Herrera, Rebecca" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5409 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, <quote>There must be some mistake here. … We're asking for " "your educational rate on this.</quote> 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><part><chapter><para> #: freeculture.xml:5418 msgid "" "<quote>I wanted to make sure I had my facts straight,</quote> he told " "me. <quote>Yes, you have your facts straight,</quote> she said. It would " "cost $10,000 to use the clip of <citetitle>The Simpsons</citetitle> in the " "corner of a shot in a documentary film about Wagner's Ring Cycle. And then, " "astonishingly, Herrera told Else, <quote>And if you quote me, I'll turn you " "over to our attorneys.</quote> As an assistant to Herrera told Else later " "on, <quote>They don't give a shit. They just want the money.</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5431 msgid "Day After Trinity, The" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5433 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, <citetitle>The Day " "After Trinity</citetitle>, from ten years before." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5441 msgid "" "There's no doubt that someone, whether Matt Groening or Fox, owns the " "copyright to <citetitle>The Simpsons</citetitle>. 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 <citetitle>Simpsons</citetitle> 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><part><chapter><para> #: freeculture.xml:5452 msgid "" "For example, <quote>public performance</quote> is a use of <citetitle>The " "Simpsons</citetitle> 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 <quote>My Favorite <citetitle>Simpsons</citetitle>,</quote> 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><part><chapter><para><footnote><para> #: freeculture.xml:5464 msgid "" "For an excellent argument that such use is <quote>fair use,</quote> but that " "lawyers don't permit recognition that it is <quote>fair use,</quote> see " "Richard A. Posner with William F. Patry, <quote>Fair Use and Statutory " "Reform in the Wake of <citetitle>Eldred</citetitle></quote> (draft on file " "with author), University of Chicago Law School, 5 August 2003." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5461 msgid "" "But when lawyers hear this story about Jon Else and Fox, their first thought " "is <quote>fair use.</quote><placeholder type=\"footnote\" id=\"0\"/> Else's " "use of just 4.5 seconds of an indirect shot of a " "<citetitle>Simpsons</citetitle> episode is clearly a fair use of " "<citetitle>The Simpsons</citetitle>—and fair use does not require the " "permission of anyone." msgstr "" #. PAGE BREAK 109 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5478 msgid "" "So I asked Else why he didn't just rely upon <quote>fair use.</quote> Here's " "his reply:" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:5481 freeculture.xml:7832 msgid "legal intimidation tactics against" msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:5483 msgid "" "The <citetitle>Simpsons</citetitle> 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 " "<quote>clearly fair use</quote> in an absolute legal sense. But I couldn't " "rely on the concept in any concrete way. Here's why:" msgstr "" #. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><indexterm><primary> #: freeculture.xml:5492 msgid "Errors and Omissions insurance" msgstr "" #. 1. #. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><para> #: freeculture.xml:5495 msgid "" "Before our films can be broadcast, the network requires that we buy Errors " "and Omissions insurance. The carriers require a detailed <quote>visual cue " "sheet</quote> listing the source and licensing status of each shot in the " "film. They take a dim view of <quote>fair use,</quote> and a claim of " "<quote>fair use</quote> can grind the application process to a halt." msgstr "" #. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><indexterm><primary> #: freeculture.xml:5504 msgid "Lucas, George" msgstr "" #. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><indexterm><primary> #: freeculture.xml:5505 msgid "<citetitle>Star Wars</citetitle>" msgstr "" #. 2. #. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><para> #: freeculture.xml:5508 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 <citetitle>Simpsons</citetitle> usage, just as George " "Lucas had a very high profile litigating <citetitle>Star Wars</citetitle> " "usage. So I decided to play by the book, thinking that we would be granted " "free or cheap license to four seconds of <citetitle>Simpsons</citetitle>. 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." msgstr "" #. 3. #. PAGE BREAK 110 #. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><para> #: freeculture.xml:5520 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 <quote>depose and litigate you to within an inch of your life,</quote> " "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><part><chapter><blockquote><orderedlist><listitem><para> #: freeculture.xml:5532 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><part><chapter><para> #: freeculture.xml:5540 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><part><chapter><para> #: freeculture.xml:5548 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><part><chapter><title> #: freeculture.xml:5563 msgid "Chapter Eight: Transformers" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5564 msgid "Allen, Paul" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:5565 freeculture.xml:5625 freeculture.xml:5810 freeculture.xml:10566 freeculture.xml:15061 msgid "Alben, Alex" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5568 msgid "" "<emphasis role='strong'>In 1993</emphasis>, 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><part><chapter><indexterm><secondary> #: freeculture.xml:5575 msgid "retrospective compilations on" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5576 msgid "CD-ROMs, film clips used in" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5578 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><part><chapter><para> #: freeculture.xml:5588 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><part><chapter><para> #: freeculture.xml:5595 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><part><chapter><para> #: freeculture.xml:5602 msgid "" "Then Alben and his team decided to include actual film clips. <quote>Our " "goal was that we were going to have a clip from every one of Eastwood's " "films,</quote> Alben told me. It was here that the problem arose. <quote>No " "one had ever really done this before,</quote> Alben explained. <quote>No one " "had ever tried to do this in the context of an artistic look at an actor's " "career.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5610 msgid "" "Alben brought the idea to Michael Slade, the CEO of Starwave. Slade asked, " "<quote>Well, what will it take?</quote>" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><secondary> #: freeculture.xml:5624 msgid "publicity rights on images of" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5620 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 <quote>Rip, Mix, Burn</quote> " "creativity, as this chapter evinces. <placeholder type=\"indexterm\" " "id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5614 msgid "" "Alben replied, <quote>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.</quote> Slade said, <quote>Great! Go for " "it.</quote><placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5629 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><part><chapter><para> #: freeculture.xml:5636 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><part><chapter><blockquote><para> #: freeculture.xml:5642 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 <quote>Make my day</quote> clip from <citetitle>Dirty " "Harry</citetitle>. 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><part><chapter><blockquote><para> #: freeculture.xml:5651 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><part><chapter><indexterm><primary> #: freeculture.xml:5662 msgid "Sutherland, Donald" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5664 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, <quote>Hey, can I pay " "you $600 or maybe if you were in two films, you know, $1,200?</quote> And " "they would say, <quote>Are you for real? Hey, I'd love to get " "$1,200.</quote> 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><part><chapter><para> #: freeculture.xml:5675 msgid "" "It was one <emphasis>year</emphasis> later—<quote>and even then we " "weren't sure whether we were totally in the clear.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5679 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><part><chapter><blockquote><para> #: freeculture.xml:5685 msgid "" "Everyone thought it would be too hard. Everyone just threw up their hands " "and said, <quote>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.</quote> But we just broke it down. We just put it into its " "constituent parts and said, <quote>Okay, there's this many actors, this many " "directors, … this many musicians,</quote> and we just went at it very " "systematically and cleared the rights." msgstr "" #. PAGE BREAK 114 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5697 msgid "" "And no doubt, the product itself was exceptionally good. Eastwood loved it, " "and it sold very well." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5700 msgid "Drucker, Peter" msgstr "" #. f2 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5708 msgid "" "U.S. Department of Commerce Office of Acquisition Management, " "<citetitle>Seven Steps to Performance-Based Services " "Acquisition</citetitle>, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #22</ulink>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5702 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, <quote>There is " "nothing so useless as doing efficiently that which should not be done at " "all.</quote><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><part><chapter><para> #: freeculture.xml:5716 msgid "" "For, as he acknowledged, <quote>very few … have the time and " "resources, and the will to do this,</quote> 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><part><chapter><blockquote><para> #: freeculture.xml:5724 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><part><chapter><para> #: freeculture.xml:5732 msgid "" "Or at least, is this <emphasis>how</emphasis> 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><part><chapter><blockquote><para> #: freeculture.xml:5743 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, <quote>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,</quote> then it becomes difficult to put one of these things " "together." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5763 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?" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5772 msgid "" "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, <quote>Does this still make sense?</quote>" msgstr "" #. PAGE BREAK 116 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5785 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><part><chapter><para> #: freeculture.xml:5795 msgid "" "The video was a brilliant collage of film from every period in the twentieth " "century, all framed around the idea of a <citetitle>60 Minutes</citetitle> " "episode. The execution was perfect, down to the sixty-minute stopwatch. The " "judges loved every minute of it." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5800 msgid "Nimmer, David" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5802 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: <quote>Do you know how many federal laws were just violated in " "this room?</quote>" msgstr "" #. type: Content of: <book><part><chapter><para><indexterm><primary> #: freeculture.xml:5811 msgid "Boies, David" msgstr "" #. type: Content of: <book><part><chapter><para><indexterm><primary> #: freeculture.xml:5812 msgid "Court of Appeals" msgstr "" #. type: Content of: <book><part><chapter><para><indexterm><secondary> #: freeculture.xml:5812 msgid "Ninth Circuit" msgstr "" #. type: Content of: <book><part><chapter><para><indexterm><primary> #: freeculture.xml:5813 msgid "Ninth Circuit Court of Appeals" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5810 msgid "" "<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\"/> 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><part><chapter><para> #: freeculture.xml:5830 msgid "" "We live in a <quote>cut and paste</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:5836 msgid "Camp Chaos" msgstr "" #. PAGE BREAK 117 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5838 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." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5849 msgid "" "All of these creations are technically illegal. Even if the creators wanted " "to be <quote>legal,</quote> 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><part><chapter><para> #: freeculture.xml:5856 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 <quote>free</quote> use be free as in <quote>free beer.</quote> 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 <quote>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.</quote> 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><part><chapter><para> #: freeculture.xml:5871 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><part><chapter><para> #: freeculture.xml:5877 msgid "" "<emphasis role='strong'>In February 2003</emphasis>, DreamWorks studios " "announced an agreement with Mike Myers, the comic genius of " "<citetitle>Saturday Night Live</citetitle> and Austin Powers. According to " "the announcement, Myers and Dream-Works would work together to form a " "<quote>unique filmmaking pact.</quote> Under the agreement, DreamWorks " "<quote>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.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5890 msgid "" "The announcement called this <quote>film sampling.</quote> As Myers " "explained, <quote>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.</quote> Steven Spielberg is " "quoted as saying, <quote>If anyone can create a way to bring old films to " "new audiences, it is Mike.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5899 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><part><chapter><para> #: freeculture.xml:5909 msgid "" "This privilege becomes reserved for two sorts of reasons. The first " "continues the story of the last chapter: the vagueness of <quote>fair " "use.</quote> Much of <quote>sampling</quote> should be considered " "<quote>fair use.</quote> 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><part><chapter><title> #: freeculture.xml:5924 msgid "Chapter Nine: Collectors" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5925 freeculture.xml:9296 freeculture.xml:11648 freeculture.xml:11894 msgid "archives, digital" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:5926 freeculture.xml:8577 msgid "bots" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5928 msgid "" "<emphasis role='strong'>In April 1996</emphasis>, millions of " "<quote>bots</quote>—computer codes designed to <quote>spider,</quote> " "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><part><chapter><indexterm><primary> #: freeculture.xml:5938 freeculture.xml:5969 freeculture.xml:6033 msgid "Way Back Machine" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5940 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 <quote>the Way Back Machine,</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:5947 msgid "Orwell, George" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5949 msgid "" "This is the thing about the Internet that Orwell would have appreciated. In " "the dystopia described in <citetitle>1984</citetitle>, 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><part><chapter><para> #: freeculture.xml:5957 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><part><chapter><para> #: freeculture.xml:5962 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 "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:5979 msgid "White House press releases" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5977 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> 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, " "<quote>Combat Operations in Iraq Have Ended.</quote> That was later changed, " "without notice, to <quote>Major Combat Operations in Iraq Have " "Ended.</quote> E-mail from Brewster Kahle, 1 December 2003." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5971 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><part><chapter><indexterm><primary> #: freeculture.xml:5987 msgid "history, records of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5989 msgid "" "<emphasis role='strong'>We take it</emphasis> 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><part><chapter><para> #: freeculture.xml:6000 msgid "" "It is said that those who fail to remember history are doomed to repeat " "it. That's not quite correct. We <emphasis>all</emphasis> 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><part><chapter><para> #: freeculture.xml:6009 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><part><chapter><para> #: freeculture.xml:6021 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><part><chapter><section><indexterm><primary> #: freeculture.xml:6030 freeculture.xml:6085 freeculture.xml:10551 msgid "Library of Congress" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6031 msgid "Television Archive" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6032 msgid "Vanderbilt University" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:6034 freeculture.xml:11124 freeculture.xml:14239 freeculture.xml:14369 freeculture.xml:14405 msgid "libraries" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:6034 msgid "archival function of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6037 msgid "" "The Way Back Machine is the largest archive of human knowledge in human " "history. At the end of 2002, it held <quote>two hundred and thirty terabytes " "of material</quote>—and was <quote>ten times larger than the Library " "of Congress.</quote> 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. <quote>But other than that, [television] is almost " "unavailable,</quote> Kahle told me. <quote>If you were Barbara Walters you " "could get access to [the archives], but if you are just a graduate " "student?</quote> As Kahle put it," msgstr "" #. type: Content of: <book><part><chapter><blockquote><indexterm><primary> #: freeculture.xml:6054 msgid "Quayle, Dan" msgstr "" #. type: Content of: <book><part><chapter><blockquote><indexterm><primary> #: freeculture.xml:6055 msgid "60 Minutes" msgstr "" #. PAGE BREAK 122 #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:6057 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 <citetitle>60 Minutes</citetitle> episode that came out " "after it … it would be almost impossible. … Those materials " "are almost unfindable. …" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6068 freeculture.xml:8680 msgid "newspapers" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:6068 msgid "archives of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6070 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><part><chapter><para> #: freeculture.xml:6078 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 "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:6086 freeculture.xml:6130 msgid "archive of" msgstr "" #. f2 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:6097 msgid "" "Doug Herrick, <quote>Toward a National Film Collection: Motion Pictures at " "the Library of Congress,</quote> <citetitle>Film Library " "Quarterly</citetitle> 13 nos. 2–3 (1980): 5; Anthony Slide, " "<citetitle>Nitrate Won't Wait: A History of Film Preservation in the United " "States</citetitle> (Jefferson, N.C.: McFarland & Co., 1992), 36." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6088 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 <quote>borrowed back.</quote> 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><part><chapter><para> #: freeculture.xml:6105 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 <quote>theft.</quote> 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 " "<quote>copyrighted.</quote> 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><part><chapter><para> #: freeculture.xml:6117 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><part><chapter><indexterm><primary> #: freeculture.xml:6127 msgid "Movie Archive" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6128 msgid "archive.org" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6128 freeculture.xml:6131 msgid "Internet Archive" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6132 msgid "Duck and Cover film" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6133 msgid "ephemeral films" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6134 msgid "Prelinger, Rick" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6136 msgid "" "Kahle had the same idea with film. Working with Rick Prelinger, whose " "archive of film includes close to 45,000 <quote>ephemeral films</quote> " "(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 " "<quote>Duck and Cover</quote> 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." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6154 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><part><chapter><para> #: freeculture.xml:6162 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><part><chapter><para> #: freeculture.xml:6170 msgid "" "For here is an idea that we should more clearly recognize. Every bit of " "creative property goes through different <quote>lives.</quote> 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><part><chapter><para> #: freeculture.xml:6182 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 "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:6195 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> Dave Barns, <quote>Fledgling " "Career in Antique Books: Woodstock Landlord, Bar Owner Starts a New Chapter " "by Adopting Business,</quote> <citetitle>Chicago Tribune</citetitle>, 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, <quote>The First " "Sale Doctrine in the Era of Digital Networks,</quote> <citetitle>Boston " "College Law Review</citetitle> 44 (2003): 593 n. 51." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6192 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><part><chapter><para> #: freeculture.xml:6210 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><part><chapter><para> #: freeculture.xml:6221 msgid "" "<emphasis role='strong'>For most of</emphasis> 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><part><chapter><para> #: freeculture.xml:6233 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><part><chapter><para> #: freeculture.xml:6241 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><part><chapter><blockquote><indexterm><secondary> #: freeculture.xml:6247 freeculture.xml:6248 freeculture.xml:6251 msgid "total number of" msgstr "" #. type: Content of: <book><part><chapter><blockquote><indexterm><primary> #: freeculture.xml:6249 freeculture.xml:6250 freeculture.xml:6251 msgid "music recordings" msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:6253 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><part><chapter><para> #: freeculture.xml:6268 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. <emphasis>When</emphasis> 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 " "<emphasis>for</emphasis> our past. The technology of digital arts could make " "the dream of the Library of Alexandria real again." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6283 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 <quote>archives,</quote> as warm as the idea of a " "<quote>library</quote> might seem, the <quote>content</quote> that is " "collected in these digital spaces is also someone's <quote>property.</quote> " "And the law of property restricts the freedoms that Kahle and others would " "exercise." msgstr "" #. type: Content of: <book><part><chapter><title> #: freeculture.xml:6295 msgid "Chapter Ten: <quote>Property</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6296 msgid "Johnson, Lyndon" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6297 freeculture.xml:10307 msgid "Kennedy, John F." msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:6298 msgid "background of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6300 msgid "" "<emphasis role='strong'>Jack Valenti</emphasis> 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." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6310 msgid "MGM" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6311 msgid "Paramount Pictures" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6312 msgid "Twentieth Century Fox" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6313 msgid "Sony Pictures Entertainment" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6314 msgid "Universal Pictures" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6315 freeculture.xml:7941 freeculture.xml:8115 msgid "Warner Brothers" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6317 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." msgstr "" #. PAGE BREAK 128 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6330 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><part><chapter><para> #: freeculture.xml:6342 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 " "<quote>creative property.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6351 msgid "In 1982, Valenti's testimony to Congress captured the strategy perfectly:" msgstr "" #. f1 #. type: Content of: <book><part><chapter><blockquote><para><footnote><para> #: freeculture.xml:6365 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><part><chapter><blockquote><para> #: freeculture.xml:6356 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: <emphasis>Creative property owners must be " "accorded the same rights and protection resident in all other property " "owners in the nation</emphasis>. 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><part><chapter><para> #: freeculture.xml:6375 msgid "" "The strategy of this rhetoric, like the strategy of most of Valenti's " "rhetoric, is brilliant and simple and brilliant because simple. The " "<quote>central theme</quote> to which <quote>reasonable men and " "women</quote> will return is this: <quote>Creative property owners must be " "accorded the same rights and protections resident in all other property " "owners in the nation.</quote> There are no second-class citizens, Valenti " "might have continued. There should be no second-class property owners." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6386 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 <emphasis>anyone</emphasis> 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 <quote>creative property.</quote> His views have " "<emphasis>no</emphasis> 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><part><chapter><para><footnote><para> #: freeculture.xml:6402 msgid "" "Lawyers speak of <quote>property</quote> not as an absolute thing, but as a " "bundle of rights that are sometimes associated with a particular " "object. Thus, my <quote>property right</quote> 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 <quote>property</quote> to " "<quote>lawyer talk,</quote> see Bruce Ackerman, <citetitle>Private Property " "and the Constitution</citetitle> (New Haven: Yale University Press, 1977), " "26–27." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6399 msgid "" "While <quote>creative property</quote> is certainly <quote>property</quote> " "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 <quote>creative property owners</quote> have " "been <quote>accorded the same rights and protection resident in all other " "property owners.</quote> 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><part><chapter><para> #: freeculture.xml:6417 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><part><chapter><para> #: freeculture.xml:6425 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><part><chapter><para> #: freeculture.xml:6440 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." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6449 msgid "" "<emphasis role='strong'>To get</emphasis> 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><part><chapter><para> #: freeculture.xml:6454 msgid "" "The framers of our Constitution loved <quote>property.</quote> 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 <quote>Takings Clause,</quote> to pay " "you <quote>just compensation</quote> for that taking. The Constitution thus " "guarantees that property is, in a certain sense, sacred. It cannot " "<emphasis>ever</emphasis> be taken from the property owner unless the " "government pays for the privilege." msgstr "" #. PAGE BREAK 131 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6465 msgid "" "Yet the very same Constitution speaks very differently about what Valenti " "calls <quote>creative property.</quote> In the clause granting Congress the " "power to create <quote>creative property,</quote> the Constitution " "<emphasis>requires</emphasis> that after a <quote>limited time,</quote> " "Congress take back the rights that it has granted and set the " "<quote>creative property</quote> free to the public domain. Yet when " "Congress does this, when the expiration of a copyright term " "<quote>takes</quote> your copyright and turns it over to the public domain, " "Congress does not have any obligation to pay <quote>just " "compensation</quote> for this <quote>taking.</quote> Instead, the same " "Constitution that requires compensation for your land requires that you lose " "your <quote>creative property</quote> right without any compensation at all." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6480 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><part><chapter><para> #: freeculture.xml:6490 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><part><chapter><para> #: freeculture.xml:6502 msgid "" "Instead, my argument is that because Jefferson did it, we should at least " "try to understand <emphasis>why</emphasis>. 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><part><chapter><para> #: freeculture.xml:6512 msgid "" "To answer this question, we need to get some perspective on the history of " "these <quote>creative property</quote> 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 <emphasis>whether</emphasis> creative property " "should be protected, but how. Not <emphasis>whether</emphasis> we will " "enforce the rights the law gives to creative-property owners, but what the " "particular mix of rights ought to be. Not <emphasis>whether</emphasis> " "artists should be paid, but whether institutions designed to assure that " "artists get paid need also control how culture develops." msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:6525 freeculture.xml:8060 freeculture.xml:9928 freeculture.xml:11255 freeculture.xml:11301 freeculture.xml:13642 msgid "Lessig, Lawrence" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:6526 msgid "four modalities of constraint on" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6527 freeculture.xml:6788 freeculture.xml:9877 freeculture.xml:9994 freeculture.xml:10106 msgid "regulation" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:6527 msgid "four modalities of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:6528 msgid "as ex post regulation modality" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:6529 freeculture.xml:6605 freeculture.xml:6742 msgid "as constraint modality" msgstr "" #. PAGE BREAK 132 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6533 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 <citetitle>Code and Other Laws of " "Cyberspace</citetitle>, 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><part><chapter><section><figure> #: freeculture.xml:6543 freeculture.xml:6738 freeculture.xml:7112 msgid "" "<graphic fileref=\"images/1331.svg\" align=\"center\" " "width=\"10em\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6547 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><part><chapter><section><indexterm><primary> #: freeculture.xml:6563 freeculture.xml:6625 freeculture.xml:6743 msgid "norms, regulatory influence of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6565 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><part><chapter><section><indexterm><primary> #: freeculture.xml:6575 freeculture.xml:6624 freeculture.xml:6718 freeculture.xml:6759 freeculture.xml:9886 freeculture.xml:10104 msgid "market constraints" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6577 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><part><chapter><section><indexterm><primary> #: freeculture.xml:6586 freeculture.xml:6623 freeculture.xml:6676 freeculture.xml:6717 freeculture.xml:6741 msgid "architecture, constraint effected through" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6588 msgid "" "Finally, and for the moment, perhaps, most mysteriously, " "<quote>architecture</quote>—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 <quote>architecture.</quote> 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><part><chapter><para> #: freeculture.xml:6609 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><part><chapter><para> #: freeculture.xml:6615 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><part><chapter><indexterm><primary> #: freeculture.xml:6626 msgid "driving speed, constraints on" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6627 msgid "speeding, constraints on" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6629 msgid "" "So, for example, consider the <quote>freedom</quote> 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 "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:6647 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, <citetitle>Code: And Other " "Laws of Cyberspace</citetitle> (New York: Basic Books, 1999): 90–95; " "Lawrence Lessig, <quote>The New Chicago School,</quote> <citetitle>Journal " "of Legal Studies</citetitle>, June 1998. <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. PAGE BREAK 135 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6643 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><part><chapter><figure> #: freeculture.xml:6673 msgid "" "<graphic fileref=\"images/1361.svg\" align=\"center\" " "width=\"12em\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:6715 msgid "Americans with Disabilities Act (1990)" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:6716 msgid "Commons, John R." msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:6686 msgid "" "Some people object to this way of talking about <quote>liberty.</quote> 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 <citetitle>Code</citetitle>, 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, <citetitle>On " "Liberty</citetitle> (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, <quote>The Right to Work,</quote> in " "Malcom Rutherford and Warren J. Samuels, eds., <citetitle>John R. Commons: " "Selected Essays</citetitle> (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 <citetitle>United States " "Code</citetitle>, 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\"/> <placeholder type=\"indexterm\" id=\"1\"/> " "<placeholder type=\"indexterm\" id=\"2\"/> <placeholder type=\"indexterm\" " "id=\"3\"/> <placeholder type=\"indexterm\" id=\"4\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6678 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><part><chapter><section><title> #: freeculture.xml:6724 msgid "Why Hollywood Is Right" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:6725 freeculture.xml:7102 msgid "four regulatory modalities on" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6727 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><part><chapter><section><para> #: freeculture.xml:6733 msgid "Let's say this is the picture of copyright's regulation before the Internet:" msgstr "" #. PAGE BREAK 136 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6746 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:6757 msgid "copyright regulatory balance lost with" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:6758 msgid "regulatory balance lost in" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6760 msgid "MP3s" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6762 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6771 freeculture.xml:7621 freeculture.xml:7930 freeculture.xml:10107 msgid "technology" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:6771 msgid "established industries threatened by changes in" msgstr "" #. PAGE BREAK 137 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6773 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><part><chapter><section><figure> #: freeculture.xml:6784 msgid "" "<graphic fileref=\"images/1381.svg\" align=\"center\" " "width=\"10em\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6787 msgid "Commerce, U.S. Department of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:6788 freeculture.xml:9877 msgid "as establishment protectionism" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6790 msgid "" "Neither this analysis nor the conclusions that follow are new to the " "warriors. Indeed, in a <quote>White Paper</quote> 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6803 freeculture.xml:6943 msgid "farming" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6804 msgid "steel industry" msgstr "" #. PAGE BREAK 138 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6806 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><part><chapter><section><para> #: freeculture.xml:6826 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 " "<quote>architecture of revenue.</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6839 msgid "railroad industry" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6840 msgid "remote channel changers" msgstr "" #. f5 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:6850 msgid "" "See Geoffrey Smith, <quote>Film vs. Digital: Can Kodak Build a " "Bridge?</quote> 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, " "<quote>Can Kodak Make Up for Lost Moments?</quote> Forbes.com, 6 October " "2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#24</ulink>." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6842 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 <emphasis>for the purpose of</emphasis> protecting the " "railroads? Closer to the subject of this book, remote channel changers have " "weakened the <quote>stickiness</quote> 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6871 msgid "free market, technological changes in" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:6872 freeculture.xml:15639 msgid "Brezhnev, Leonid" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:6875 freeculture.xml:13828 msgid "Gates, Bill" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6876 freeculture.xml:7895 msgid "market competition" msgstr "" #. f6 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:6889 msgid "" "Fred Warshofsky, <citetitle>The Patent Wars</citetitle> (New York: Wiley, " "1994), 170–71." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6879 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, <quote>established companies have an interest in excluding future " "competitors.</quote><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." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6900 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><part><chapter><section><indexterm><primary> #: freeculture.xml:6911 msgid "speech, freedom of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:6911 msgid "constitutional guarantee of" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6913 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: <quote>Congress shall make no law … abridging the " "freedom of speech.</quote> So when Congress is being asked to pass laws that " "would <quote>abridge</quote> the freedom of speech, it should ask— " "carefully—whether such regulation is justified." msgstr "" #. PAGE BREAK 140 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6929 msgid "" "My argument just now, however, has nothing to do with whether the changes " "that are being pushed by the copyright warriors are " "<quote>justified.</quote> 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><part><chapter><section><para> #: freeculture.xml:6938 msgid "Here's the metaphor that will capture the argument to follow." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6940 msgid "Müller, Paul Hermann" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6941 msgid "DDT" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6942 msgid "insecticide, environmental consequences of" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6945 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." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6952 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><part><chapter><section><indexterm><primary> #: freeculture.xml:6956 msgid "Carson, Rachel" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6957 msgid "Silent Spring (Carson)" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6958 msgid "environmentalism" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6960 msgid "" "But in 1962, Rachel Carson published <citetitle>Silent Spring</citetitle>, " "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." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6966 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6975 msgid "Boyle, James" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:6976 msgid "innovative freedom balanced with fair compensation in" msgstr "" #. f7 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:6982 msgid "" "See, for example, James Boyle, <quote>A Politics of Intellectual Property: " "Environmentalism for the Net?</quote> <citetitle>Duke Law " "Journal</citetitle> 47 (1997): 87." msgstr "" #. PAGE BREAK 141 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6978 msgid "" "It is to this image precisely that Duke University law professor James Boyle " "appeals when he argues that we need an <quote>environmentalism</quote> 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 <quote>for free.</quote> 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><part><chapter><section><para> #: freeculture.xml:7000 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><part><chapter><section><para> #: freeculture.xml:7012 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><part><chapter><section><title> #: freeculture.xml:7021 msgid "Beginnings" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7022 msgid "on creative property" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:7023 freeculture.xml:11555 msgid "copyright purpose established in" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:7024 freeculture.xml:11253 freeculture.xml:12371 msgid "Progress Clause of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:7025 freeculture.xml:11556 msgid "constitutional purpose of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7027 msgid "constitutional tradition on" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:7028 freeculture.xml:11254 freeculture.xml:12369 msgid "Progress Clause" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7031 msgid "" "America copied English copyright law. Actually, we copied and improved " "English copyright law. Our Constitution makes the purpose of <quote>creative " "property</quote> rights clear; its express limitations reinforce the English " "aim to avoid overly powerful publishers." msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:7036 freeculture.xml:12368 msgid "in constitutional Progress Clause" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7038 msgid "" "The power to establish <quote>creative property</quote> 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 "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:7044 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." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7052 msgid "" "We can call this the <quote>Progress Clause,</quote> for notice what this " "clause does not say. It does not say Congress has the power to grant " "<quote>creative property rights.</quote> It says that Congress has the power " "<emphasis>to promote progress</emphasis>. 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:7061 msgid "history of American" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7063 msgid "" "The Progress Clause expressly limits the term of copyrights. As we saw in " "chapter <xref xrefstyle=\"select: labelnumber\" linkend=\"founders\"/>, 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 <quote>to " "Authors</quote> only." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:7072 msgid "Senate, U.S." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7073 msgid "structural checks and balances of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:7074 msgid "electoral college" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7076 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 <emphasis>structure</emphasis> built " "checks and balances into the constitutional frame, structured to prevent " "otherwise inevitable concentrations of power." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7093 msgid "" "I doubt the framers would recognize the regulation we call " "<quote>copyright</quote> 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 <quote>copyright</quote> 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><part><chapter><section><para> #: freeculture.xml:7104 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><part><chapter><section><para> #: freeculture.xml:7115 msgid "We will end here:" msgstr "" #. type: Content of: <book><part><chapter><section><figure> #: freeculture.xml:7119 msgid "" "<graphic fileref=\"images/1442.svg\" align=\"center\" " "width=\"10em\"></graphic>" msgstr "" #. PAGE BREAK 144 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7122 msgid "Let me explain how." msgstr "" #. type: Content of: <book><part><chapter><section><title> #: freeculture.xml:7127 msgid "Law: Duration" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:7130 freeculture.xml:7424 msgid "Copyright Act (1790)" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7131 msgid "common law protections of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7132 msgid "balance of U.S. content in" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:7149 msgid "Crosskey, William W." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:7142 msgid "" "William W. Crosskey, <citetitle>Politics and the Constitution in the History " "of the United States</citetitle> (London: Cambridge University Press, 1953), " "vol. 1, 485–86: <quote>extinguish[ing], by plain implication of " "<quote>the supreme Law of the Land,</quote> <emphasis>the perpetual rights " "which authors had, or were supposed by some to have, under the Common " "Law</emphasis></quote> (emphasis added). <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7134 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:7159 msgid "federal vs. state" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7161 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><part><chapter><section><para> #: freeculture.xml:7170 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><part><chapter><section><para><footnote><para> #: freeculture.xml:7186 msgid "" "Although 13,000 titles were published in the United States from 1790 to " "1799, only 556 copyright registrations were filed; John Tebbel, <citetitle>A " "History of Book Publishing in the United States</citetitle>, vol. 1, " "<citetitle>The Creation of an Industry, 1630–1865</citetitle> (New " "York: Bowker, 1972), 141. Of the 21,000 imprints recorded before 1790, only " "twelve were copyrighted under the 1790 act; William J. Maher, " "<citetitle>Copyright Term, Retrospective Extension and the Copyright Law of " "1790 in Historical Context</citetitle>, 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><part><chapter><section><para> #: freeculture.xml:7178 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><part><chapter><section><para> #: freeculture.xml:7204 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><part><chapter><section><para><footnote><para> #: freeculture.xml:7219 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, " "<quote>Study No. 31: Renewal of Copyright,</quote> <citetitle>Studies on " "Copyright</citetitle>, vol. 1 (New York: Practicing Law Institute, 1963), " "618. For a more recent and comprehensive analysis, see William M. Landes and " "Richard A. Posner, <quote>Indefinitely Renewable Copyright,</quote> " "<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 471, " "498–501, and accompanying figures." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7213 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><part><chapter><section><para><footnote><para> #: freeculture.xml:7237 msgid "See Ringer, ch. 9, n. 2." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7233 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 <emphasis>effectively</emphasis> 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><part><chapter><indexterm><secondary> #: freeculture.xml:7245 freeculture.xml:11190 freeculture.xml:12370 msgid "copyright terms extended by" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:7246 freeculture.xml:11192 msgid "term extensions in" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7248 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><part><chapter><section><indexterm><primary> #: freeculture.xml:7255 msgid "CTEA" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:7255 freeculture.xml:7256 freeculture.xml:7291 freeculture.xml:11216 freeculture.xml:15557 msgid "Sonny Bono Copyright Term Extension Act (CTEA) (1998)" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:7257 freeculture.xml:11196 msgid "future patents vs. future copyrights in" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7259 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 "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:7268 freeculture.xml:11195 msgid "in public domain" msgstr "" #. PAGE BREAK 146 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7270 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><part><chapter><section><para> #: freeculture.xml:7282 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:7292 msgid "of natural authors vs. corporations" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:7293 freeculture.xml:13486 msgid "corporations" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7293 msgid "copyright terms for" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7295 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 <quote>natural</quote> 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><part><chapter><section><para> #: freeculture.xml:7305 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 " "<quote>limited,</quote> we have no evidence that anything will limit them." msgstr "" #. f12 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:7324 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, " "<quote>Indefinitely Renewable Copyright,</quote> loc. cit." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7316 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><part><chapter><section><title> #: freeculture.xml:7338 msgid "Law: Scope" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7339 freeculture.xml:7558 msgid "scope of" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7341 msgid "" "The <quote>scope</quote> 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:7347 msgid "historical shift in copyright coverage of" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7349 msgid "" "In 1790, that scope was very narrow. Copyright covered only <quote>maps, " "charts, and books.</quote> 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 <quote>publish</quote> 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 <quote>derivative works.</quote> 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><part><chapter><section><para> #: freeculture.xml:7362 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 " "<quote>publish</quote> the work, but also the exclusive right of control " "over any <quote>copies</quote> 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 <quote>derivative work</quote> 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7376 msgid "marking of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:7377 msgid "formalities" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7378 msgid "registration requirement of" msgstr "" #. PAGE BREAK 148 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7380 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 " "<emphasis>copyright</emphasis>. 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><part><chapter><section><para> #: freeculture.xml:7395 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:7408 msgid "European" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7410 msgid "" "All of these <quote>formalities</quote> 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><part><chapter><section><para> #: freeculture.xml:7421 msgid "Consider a practical example to understand the scope of these differences." msgstr "" #. f13 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:7433 msgid "" "See Thomas Bender and David Sampliner, <quote>Poets, Pirates, and the " "Creation of American Literature,</quote> 29 <citetitle>New York University " "Journal of International Law and Politics</citetitle> 255 (1997), and James " "Gilraeth, ed., Federal Copyright Records, 1790–1800 (U.S. G.P.O., " "1987)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7426 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><part><chapter><section><para> #: freeculture.xml:7448 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><part><chapter><section><para> #: freeculture.xml:7458 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, <emphasis>every</emphasis> 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><part><chapter><section><para> #: freeculture.xml:7467 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><part><chapter><section><para> #: freeculture.xml:7472 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 <quote>derivative " "rights.</quote> 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><part><chapter><section><para> #: freeculture.xml:7487 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><part><chapter><section><para><footnote><para> #: freeculture.xml:7509 msgid "" "Jonathan Zittrain, <quote>The Copyright Cage,</quote> <citetitle>Legal " "Affairs</citetitle>, 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><part><chapter><section><para> #: freeculture.xml:7499 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 <emphasis>that</emphasis> 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 "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:7531 msgid "Rubenfeld, Jeb" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:7524 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 <quote>copies</quote> and derivative " "works. See Jed Rubenfeld, <quote>The Freedom of Imagination: Copyright's " "Constitutionality,</quote> <citetitle>Yale Law Journal</citetitle> 112 " "(2002): 1–60 (see especially pp. 53–59). <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7519 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><part><chapter><section><para> #: freeculture.xml:7539 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 " "<quote>Mickey Mouse,</quote> 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><part><chapter><section><para> #: freeculture.xml:7547 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><part><chapter><section><title> #: freeculture.xml:7556 msgid "Law and Architecture: Reach" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7557 freeculture.xml:7619 freeculture.xml:7831 msgid "copies as core issue of" msgstr "" #. f16 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:7565 msgid "" "This is a simplification of the law, but not much of one. The law certainly " "regulates more than <quote>copies</quote>—a public performance of a " "copyrighted song, for example, is regulated even though performance per se " "doesn't make a copy; 17 <citetitle>United States Code</citetitle>, section " "106(4). And it certainly sometimes doesn't regulate a <quote>copy</quote>; " "17 <citetitle>United States Code</citetitle>, section 112(a). But the " "presumption under the existing law (which regulates <quote>copies;</quote> " "17 <citetitle>United States Code</citetitle>, section 102) is that if there " "is a copy, there is a right." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7560 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7576 msgid "other property rights vs." msgstr "" #. PAGE BREAK 151 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7579 msgid "" "<quote>Copies.</quote> That certainly sounds like the obvious thing for " "<emphasis>copy</emphasis>right law to regulate. But as with Jack Valenti's " "argument at the start of this chapter, that <quote>creative property</quote> " "deserves the <quote>same rights</quote> as all other property, it is the " "<emphasis>obvious</emphasis> 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 <emphasis>not</emphasis> " "be the trigger for copyright law. More precisely, they should not " "<emphasis>always</emphasis> be the trigger for copyright law." msgstr "" #. f17 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:7598 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><part><chapter><section><para> #: freeculture.xml:7593 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><part><chapter><section><para> #: freeculture.xml:7611 msgid "" "We can see this point abstractly by beginning with this largely empty " "circle." msgstr "" #. type: Content of: <book><part><chapter><section><figure> #: freeculture.xml:7616 msgid "" "<graphic fileref=\"images/1521.svg\" align=\"center\" " "width=\"10em\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7618 msgid "three types of uses of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7620 msgid "copyright applicability altered by technology of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7621 msgid "copyright intent altered by" msgstr "" #. PAGE BREAK 152 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7626 msgid "" "Think about a book in real space, and imagine this circle to represent all " "its potential <emphasis>uses</emphasis>. 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><part><chapter><section><figure> #: freeculture.xml:7640 msgid "" "<graphic fileref=\"images/1531.png\" align=\"center\" " "width=\"10em\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7643 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 diagram in " "figure <xref xrefstyle=\"template:%n\" linkend=\"fig-1541\"/>)." msgstr "" #. type: Content of: <book><part><chapter><section><figure> #: freeculture.xml:7654 msgid "" "<graphic fileref=\"images/1541.svg\" align=\"center\" " "width=\"10em\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7659 msgid "" "Finally, there is a tiny sliver of otherwise regulated copying uses that " "remain unregulated because the law considers these <quote>fair uses.</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7666 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 <quote>fair uses</quote> for public policy (and possibly First " "Amendment) reasons." msgstr "" #. type: Content of: <book><part><chapter><section><figure> #: freeculture.xml:7677 msgid "" "<graphic fileref=\"images/1542.svg\" align=\"center\" " "width=\"10em\"></graphic>" msgstr "" #. PAGE BREAK 154 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7682 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 <quote>fair</quote> regardless of the copyright " "owner's views." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7687 freeculture.xml:7975 freeculture.xml:10261 msgid "on Internet" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7689 freeculture.xml:7770 msgid "Internet burdens on" msgstr "" #. f18 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:7694 msgid "" "I don't mean <quote>nature</quote> 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><part><chapter><section><para> #: freeculture.xml:7691 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><part><chapter><section><para> #: freeculture.xml:7714 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 <emphasis>copyright</emphasis>-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><part><chapter><section><indexterm><primary> #: freeculture.xml:7725 msgid "e-books" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7726 msgid "technological developments and" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7728 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 <emphasis>copyright law</emphasis> 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><part><chapter><section><figure> #: freeculture.xml:7741 msgid "" "<graphic fileref=\"images/1551.svg\" align=\"center\" " "width=\"10em\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7744 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><part><chapter><section><para> #: freeculture.xml:7750 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><part><chapter><section><para> #: freeculture.xml:7759 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 " "<emphasis>any</emphasis> transformation you make of creative work using a " "machine. <quote>Copy and paste</quote> and <quote>cut and paste</quote> " "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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7772 msgid "fair use vs." msgstr "" #. PAGE BREAK 156 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7774 msgid "" "Third, this shift from category 1 to category 2 puts an extraordinary burden " "on category 3 (<quote>fair use</quote>) 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><part><chapter><section><para> #: freeculture.xml:7793 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 <emphasis>unregulated</emphasis>. But " "when everything becomes presumptively regulated, then the protections of " "fair use are not enough." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:7809 msgid "Video Pipeline" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7811 msgid "trailer advertisements of" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7813 msgid "" "The case of Video Pipeline is a good example. Video Pipeline was in the " "business of making <quote>trailer</quote> 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><section><section><indexterm><primary> #: freeculture.xml:7819 freeculture.xml:7894 freeculture.xml:14194 msgid "browsing" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7821 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 <quote>selling by sampling</quote> technique by " "giving on-line stores the same ability to enable <quote>browsing.</quote> " "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><part><chapter><section><para> #: freeculture.xml:7834 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 <quote>fair use</quote> 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:7851 msgid "willful infringement findings in" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:7852 msgid "willful infringement" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7854 msgid "" "Disney countersued—for $100 million in damages. Those damages were " "predicated upon a claim that Video Pipeline had <quote>willfully " "infringed</quote> 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><part><chapter><section><para> #: freeculture.xml:7864 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><part><chapter><section><indexterm><primary> #: freeculture.xml:7872 msgid "first-sale doctrine" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7874 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 " "<quote>first-sale doctrine</quote> 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:7893 msgid "Barnes & Noble" msgstr "" #. PAGE BREAK 158 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7898 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><part><chapter><section><para> #: freeculture.xml:7913 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><part><chapter><section><title> #: freeculture.xml:7922 msgid "Architecture and Law: Force" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7924 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:7929 msgid "technology as automatic enforcer of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7930 msgid "copyright enforcement controlled by" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7932 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><part><chapter><section><indexterm><primary> #: freeculture.xml:7939 msgid "Casablanca" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:7940 freeculture.xml:8114 msgid "Marx Brothers" msgstr "" #. f19 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:7951 msgid "" "See David Lange, <quote>Recognizing the Public Domain,</quote> " "<citetitle>Law and Contemporary Problems</citetitle> 44 (1981): " "172–73." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7943 msgid "" "There's a famous story about a battle between the Marx Brothers and Warner " "Brothers. The Marxes intended to make a parody of " "<citetitle>Casablanca</citetitle>. 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><part><chapter><section><para><footnote><para> #: freeculture.xml:7960 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> Ibid. See also Vaidhyanathan, " "<citetitle>Copyrights and Copywrongs</citetitle>, 1–3." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7956 msgid "" "This led the Marx Brothers to respond in kind. They warned Warner Brothers " "that the Marx Brothers <quote>were brothers long before you " "were.</quote><placeholder type=\"footnote\" id=\"0\"/> The Marx Brothers " "therefore owned the word <citetitle>brothers</citetitle>, and if Warner " "Brothers insisted on trying to control <citetitle>Casablanca</citetitle>, " "then the Marx Brothers would insist on control over " "<citetitle>brothers</citetitle>." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7970 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><part><chapter><section><para> #: freeculture.xml:7978 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><part><chapter><section><indexterm><primary> #: freeculture.xml:7990 msgid "Adobe eBook Reader" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7992 msgid "Consider the life of my Adobe eBook Reader." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7995 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><part><chapter><section><figure> #: freeculture.xml:8003 msgid "" "<graphic fileref=\"images/example-adobe-ebook-reader.png\" align=\"center\" " "width=\"50%\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8006 msgid "" "In figure <xref xrefstyle=\"template:%n\" " "linkend=\"fig-example-adobe-ebook-reader\"/> is a picture of an old version " "of my Adobe eBook Reader." msgstr "" #. PAGE BREAK 160 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8011 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: " "<citetitle>Middlemarch</citetitle>, for example, is in the public domain. " "Some of them reproduce content that is not in the public domain: My own book " "<citetitle>The Future of Ideas</citetitle> is not yet within the public " "domain. Consider <citetitle>Middlemarch</citetitle> first. If you click on " "my e-book copy of <citetitle>Middlemarch</citetitle>, you'll see a fancy " "cover, and then a button at the bottom called Permissions." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8024 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><part><chapter><section><figure> #: freeculture.xml:8029 msgid "" "<graphic fileref=\"images/1612.png\" align=\"center\" " "width=\"50%\"></graphic>" msgstr "" #. PAGE BREAK 161 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8033 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 <citetitle>Middlemarch</citetitle> read aloud through the " "computer." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8040 msgid "Aristotle" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8041 msgid "<citetitle>Politics</citetitle>, (Aristotle)" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8043 msgid "" "Here's the e-book for another work in the public domain (including the " "translation): Aristotle's <citetitle>Politics</citetitle>." msgstr "" #. type: Content of: <book><part><chapter><section><figure> #: freeculture.xml:8048 msgid "" "<graphic fileref=\"images/aristotele-ebook.png\" align=\"center\" " "width=\"50%\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8051 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><part><chapter><section><figure> #: freeculture.xml:8057 msgid "" "<graphic fileref=\"images/1622.png\" align=\"center\" " "width=\"50%\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8059 freeculture.xml:9927 msgid "Future of Ideas, The (Lessig)" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8062 msgid "" "Finally (and most embarrassingly), here are the permissions for the original " "e-book version of my last book, <citetitle>The Future of Ideas</citetitle>:" msgstr "" #. type: Content of: <book><part><chapter><section><figure> #: freeculture.xml:8069 msgid "" "<graphic fileref=\"images/1631.png\" align=\"center\" " "width=\"50%\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8072 msgid "No copying, no printing, and don't you dare try to listen to this book!" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:8089 msgid "contracts" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:8082 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. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8075 msgid "" "Now, the Adobe eBook Reader calls these controls " "<quote>permissions</quote>— 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 " "<citetitle>Middlemarch</citetitle> 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><part><chapter><section><para> #: freeculture.xml:8098 msgid "" "The control comes instead from the code—from the technology within " "which the e-book <quote>lives.</quote> Though the e-book says that these are " "permissions, they are not the sort of <quote>permissions</quote> that most " "of us deal with. When a teenager gets <quote>permission</quote> 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><part><chapter><section><para> #: freeculture.xml:8118 msgid "" "These are <emphasis>controls</emphasis>, not permissions. Imagine a world " "where the Marx Brothers sold word processing software that, when you tried " "to type <quote>Warner Brothers,</quote> erased <quote>Brothers</quote> from " "the sentence." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8124 msgid "" "This is the future of copyright law: not so much copyright " "<emphasis>law</emphasis> as copyright <emphasis>code</emphasis>. 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><part><chapter><section><para> #: freeculture.xml:8133 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><part><chapter><section><para> #: freeculture.xml:8140 msgid "" "We've only scratched the surface of this story. Return to the Adobe eBook " "Reader." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8143 msgid "Alice's Adventures in Wonderland (Carroll)" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:8144 msgid "e-book restrictions on" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8146 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 <citetitle>Alice's Adventures in " "Wonderland</citetitle>. 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><part><chapter><section><figure> #: freeculture.xml:8155 msgid "" "<graphic fileref=\"images/1641.png\" align=\"center\" " "width=\"50%\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8159 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 " "<quote>permissions</quote> indicated, not allowed to <quote>read " "aloud</quote>!" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8164 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><part><chapter><section><para> #: freeculture.xml:8172 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><part><chapter><section><para> #: freeculture.xml:8187 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><part><chapter><section><para> #: freeculture.xml:8198 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><part><chapter><section><indexterm><primary> #: freeculture.xml:8201 freeculture.xml:8345 freeculture.xml:8410 freeculture.xml:8522 msgid "Aibo robotic dog" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8202 freeculture.xml:8346 freeculture.xml:8411 freeculture.xml:8523 msgid "robotic dog" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:8203 freeculture.xml:8347 freeculture.xml:8412 freeculture.xml:8524 msgid "Aibo robotic dog produced by" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8205 msgid "" "Consider the robotic dog made by Sony named <quote>Aibo.</quote> 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><part><chapter><section><para> #: freeculture.xml:8210 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><part><chapter><section><para> #: freeculture.xml:8219 msgid "" "<quote>Teach</quote> 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 " "<quote>dog</quote> to make it do new tricks (thus, aibohack.com)." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8226 msgid "hacks" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8228 msgid "" "If you're not a programmer or don't know many programmers, the word " "<citetitle>hack</citetitle> 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, " "<citetitle>hack</citetitle> is a much more positive " "term. <citetitle>Hack</citetitle> 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 <quote>drive,</quote> 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><part><chapter><section><para> #: freeculture.xml:8242 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><part><chapter><section><para> #: freeculture.xml:8249 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><part><chapter><section><para> #: freeculture.xml:8259 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, <emphasis>What possible problem could " "there be with teaching a robot dog to dance?</emphasis>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:8274 msgid "government case against" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8276 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><part><chapter><section><indexterm><primary> #: freeculture.xml:8299 freeculture.xml:10890 msgid "Electronic Frontier Foundation" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:8289 msgid "" "See Pamela Samuelson, <quote>Anticircumvention Rules: Threat to " "Science,</quote> <citetitle>Science</citetitle> 293 (2001): 2028; Brendan " "I. Koerner, <quote>Play Dead: Sony Muzzles the Techies Who Teach a Robot Dog " "New Tricks,</quote> <citetitle>American Prospect</citetitle>, January 2002; " "<quote>Court Dismisses Computer Scientists' Challenge to DMCA,</quote> " "<citetitle>Intellectual Property Litigation Reporter</citetitle>, 11 " "December 2001; Bill Holland, <quote>Copyright Act Raising Free-Speech " "Concerns,</quote> <citetitle>Billboard</citetitle>, May 2001; Janelle Brown, " "<quote>Is the RIAA Running Scared?</quote> Salon.com, April 2001; Electronic " "Frontier Foundation, <quote>Frequently Asked Questions about " "<citetitle>Felten and USENIX</citetitle> v. <citetitle>RIAA</citetitle> " "Legal Case,</quote> available at <ulink " "url=\"http://free-culture.cc/notes/\">link #27</ulink>. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8287 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><part><chapter><section><para> #: freeculture.xml:8307 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 <quote>this music cannot " "be copied,</quote> and have a computer respect that command. The technology " "was to be part of a <quote>trusted system</quote> of control that would get " "content owners to trust the system of the Internet much more." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8317 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><part><chapter><section><para> #: freeculture.xml:8324 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><part><chapter><section><para> #: freeculture.xml:8330 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><part><chapter><section><para> #: freeculture.xml:8338 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><part><chapter><section><para> #: freeculture.xml:8349 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><part><chapter><section><blockquote><para> #: freeculture.xml:8356 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><part><chapter><section><para> #: freeculture.xml:8365 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><part><chapter><section><blockquote><para> #: freeculture.xml:8371 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 (<quote>DMCA</quote>)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8379 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><part><chapter><section><para> #: freeculture.xml:8384 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 <emphasis>code</emphasis> to modify the original " "<emphasis>code</emphasis> of the Internet, to reestablish some protection " "for copyright owners." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8395 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, " "<emphasis>legal code</emphasis> intended to buttress <emphasis>software " "code</emphasis> which itself was intended to support the <emphasis>legal " "code of copyright</emphasis>." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8402 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><part><chapter><section><para> #: freeculture.xml:8414 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><part><chapter><section><para> #: freeculture.xml:8426 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><part><chapter><section><blockquote><para><footnote><para><indexterm><primary> #: freeculture.xml:8433 freeculture.xml:8468 msgid "Rogers, Fred" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8444 freeculture.xml:8483 freeculture.xml:8511 msgid "Conrad, Paul" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8436 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 " "<quote><citetitle>Mr. Rogers</citetitle>,</quote> for example, had testified " "in that case that he wanted people to feel free to tape Mr. Rogers' " "Neighborhood. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:8463 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <citetitle>Sony Corporation of " "America</citetitle> v. <citetitle>Universal City Studios, Inc</citetitle>., " "464 U.S. 417, 455 fn. 27 (1984). Rogers never changed his view about the " "VCR. See James Lardner, <citetitle>Fast Forward: Hollywood, the Japanese, " "and the Onslaught of the VCR</citetitle> (New York: W. W. Norton, 1987), " "270–71. <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:8448 msgid "" "Some public stations, as well as commercial stations, program the " "<quote>Neighborhood</quote> 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 " "<quote>Neighborhood</quote> off-the-air, and I'm speaking for the " "<quote>Neighborhood</quote> 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 <quote>You are an important " "person just the way you are. You can make healthy decisions.</quote> 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><part><chapter><section><para> #: freeculture.xml:8474 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><part><chapter><section><para> #: freeculture.xml:8479 msgid "" "This led Conrad to draw the cartoon in figure <xref " "xrefstyle=\"template:%n\" linkend=\"fig-1711-vcr-handgun-cartoonfig\"/>, " "which we can adopt to the DMCA. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8486 msgid "No argument I have can top this picture, but let me try to get close." msgstr "" #. type: Content of: <book><part><chapter><section><figure><title> #: freeculture.xml:8489 msgid "" "— On which item have the courts ruled that manufacturers and retailers " "be held responsible for having supplied the equipment?" msgstr "" #. type: Content of: <book><part><chapter><section><figure> #: freeculture.xml:8492 msgid "" "<graphic fileref=\"images/vcr-comic.png\" align=\"center\" " "width=\"55%\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8495 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8502 msgid "handguns" msgstr "" #. PAGE BREAK 171 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8504 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><part><chapter><section><para> #: freeculture.xml:8513 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: <emphasis>No one ever died from copyright " "circumvention</emphasis>. 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><part><chapter><section><para> #: freeculture.xml:8526 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><part><chapter><section><para> #: freeculture.xml:8534 msgid "" "This is how <emphasis>code</emphasis> becomes <emphasis>law</emphasis>. 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><part><chapter><section><para> #: freeculture.xml:8546 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><part><chapter><section><para><footnote><para> #: freeculture.xml:8565 msgid "" "For an early and prescient analysis, see Rebecca Tushnet, <quote>Legal " "Fictions, Copyright, Fan Fiction, and a New Common Law,</quote> " "<citetitle>Loyola of Los Angeles Entertainment Law Journal</citetitle> 17 " "(1997): 651." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8559 msgid "" "For example, imagine you were part of a <citetitle>Star Trek</citetitle> 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><part><chapter><section><para> #: freeculture.xml:8571 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><part><chapter><section><para> #: freeculture.xml:8579 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><part><chapter><section><para> #: freeculture.xml:8589 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><part><chapter><section><title> #: freeculture.xml:8598 msgid "Market: Concentration" msgstr "" #. PAGE BREAK 173 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8600 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><part><chapter><section><para> #: freeculture.xml:8618 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><part><chapter><section><para> #: freeculture.xml:8625 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 85 percent of the media." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8636 msgid "These changes are of two sorts: the scope of concentration, and its nature." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8640 msgid "BMG" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8641 freeculture.xml:10037 msgid "EMI" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8642 msgid "McCain, John" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8643 freeculture.xml:10044 msgid "Universal Music Group" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8644 msgid "Warner Music Group" msgstr "" #. f25 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:8650 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><part><chapter><section><para><footnote><para> #: freeculture.xml:8657 msgid "" "Lynette Holloway, <quote>Despite a Marketing Blitz, CD Sales Continue to " "Slide,</quote> <citetitle>New York Times</citetitle>, 23 December 2002." msgstr "" #. f27 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:8663 msgid "" "Molly Ivins, <quote>Media Consolidation Must Be Stopped,</quote> " "<citetitle>Charleston Gazette</citetitle>, 31 May 2003." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8646 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, " "<quote>five companies control 85 percent of our media " "sources.</quote><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 <quote>five largest cable companies pipe " "programming to 74 percent of the cable subscribers " "nationwide.</quote><placeholder type=\"footnote\" id=\"2\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:8667 msgid "ownership consolidation in" msgstr "" #. PAGE BREAK 174 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8669 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 <emphasis>one</emphasis> 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:8680 msgid "ownership consolidation of" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8682 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><part><chapter><section><blockquote><para><footnote><para><indexterm><primary> #: freeculture.xml:8692 freeculture.xml:8713 msgid "Fallows, James" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8694 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," msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:8711 msgid "" "James Fallows, <quote>The Age of Murdoch,</quote> <citetitle>Atlantic " "Monthly</citetitle> (September 2003): 89. <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:8700 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><part><chapter><section><para> #: freeculture.xml:8720 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><part><chapter><section><figure> #: freeculture.xml:8727 msgid "" "<graphic fileref=\"images/pattern-modern-media-ownership.png\" " "align=\"center\" width=\"100%\"></graphic>" msgstr "" #. PAGE BREAK 175 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8731 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><part><chapter><section><para> #: freeculture.xml:8736 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><part><chapter><section><para> #: freeculture.xml:8742 msgid "" "Here's a representative story that begins to suggest how this integration " "may matter." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8745 msgid "Lear, Norman" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8747 freeculture.xml:8810 msgid "All in the Family" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8749 msgid "" "In 1969, Norman Lear created a pilot for <citetitle>All in the " "Family</citetitle>. 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><part><chapter><section><para><footnote><para> #: freeculture.xml:8761 msgid "" "Leonard Hill, <quote>The Axis of Access,</quote> remarks before Weidenbaum " "Center Forum, <quote>Entertainment Economics: The Movie Industry,</quote> " "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><part><chapter><section><para> #: freeculture.xml:8756 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><part><chapter><section><para> #: freeculture.xml:8772 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 " "<quote>independent</quote> of the networks." msgstr "" #. f30 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:8791 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><part><chapter><section><para> #: freeculture.xml:8781 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. <quote>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.</quote> <quote>In 1992, 16 new series were " "produced independently of conglomerate control, last year there was " "one.</quote><placeholder type=\"footnote\" id=\"0\"/> In 2002, 75 percent of " "prime time television was owned by the networks that ran it. <quote>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%.</quote><placeholder type=\"footnote\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8812 msgid "" "Today, another Norman Lear with another <citetitle>All in the " "Family</citetitle> 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><part><chapter><section><indexterm><primary> #: freeculture.xml:8817 msgid "Diller, Barry" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8818 msgid "Moyers, Bill" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8820 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," msgstr "" #. f32 #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:8835 msgid "" "<quote>Barry Diller Takes on Media Deregulation,</quote> <citetitle>Now with " "Bill Moyers</citetitle>, Bill Moyers, 25 April 2003, edited transcript " "available at <ulink url=\"http://free-culture.cc/notes/\">link #31</ulink>." msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:8826 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:8841 msgid "media concentration and" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8843 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><part><chapter><section><indexterm><primary> #: freeculture.xml:8854 msgid "Clark, Kim B." msgstr "" #. f33 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:8863 msgid "" "Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The " "Revolutionary National Bestseller that Changed the Way We Do " "Business</citetitle> (Cambridge: Harvard Business School Press, " "1997). Christensen acknowledges that the idea was first suggested by Dean " "Kim Clark. See Kim B. Clark, <quote>The Interaction of Design Hierarchies " "and Market Concepts in Technological Evolution,</quote> <citetitle>Research " "Policy</citetitle> 14 (1985): 235–51. For a more recent study, see " "Richard Foster and Sarah Kaplan, <citetitle>Creative Destruction: Why " "Companies That Are Built to Last Underperform the Market—and How to " "Successfully Transform Them</citetitle> (New York: Currency/Doubleday, " "2001)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8856 msgid "" "Economics itself offers a parallel that explains why this integration " "affects creativity. Clay Christensen has written about the " "<quote>Innovator's Dilemma</quote>: 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><part><chapter><section><para> #: freeculture.xml:8880 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><part><chapter><section><para> #: freeculture.xml:8886 msgid "" "But there is a quintessentially obvious example that does strongly suggest " "the concern." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8890 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8894 msgid "criminal justice system" msgstr "" #. PAGE BREAK 178 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8896 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><part><chapter><section><para> #: freeculture.xml:8915 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><part><chapter><section><indexterm><primary> #: freeculture.xml:8923 msgid "Nick and Norm anti-drug campaign" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8925 msgid "" "Beginning in 1998, the Office of National Drug Control Policy launched a " "media campaign as part of the <quote>war on drugs.</quote> 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><part><chapter><section><para> #: freeculture.xml:8937 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><part><chapter><section><para> #: freeculture.xml:8941 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><part><chapter><section><para> #: freeculture.xml:8947 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:8955 msgid "on television advertising bans" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:8956 msgid "controversy avoided by" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:8969 msgid "Comcast" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:8970 msgid "Marijuana Policy Project" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:8971 msgid "NBC" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:8972 msgid "WJOA" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:8973 msgid "WRC" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:8968 msgid "" "<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\"/> 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 <quote>against " "[their] policy.</quote> 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, <quote>On the Issue of an Iraq War, Advocacy Ads Meet " "with Rejection from TV Networks,</quote> <citetitle>New York " "Times</citetitle>, 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, <quote>Ad Hoc " "Access: The Regulation of Editorial Advertising on Television and " "Radio,</quote> <citetitle>Yale Law and Policy Review</citetitle> 6 (1988): " "449–79, and for a more recent summary of the stance of the FCC and the " "courts, see <citetitle>Radio-Television News Directors " "Association</citetitle> v. <citetitle>FCC</citetitle>, 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, <quote>Antidiesel Group Fuming After Muni Rejects " "Ad,</quote> SFGate.com, 16 June 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #32</ulink>. The ground was that " "the criticism was <quote>too controversial.</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8958 msgid "" "No. You cannot. Television stations have a general policy of avoiding " "<quote>controversial</quote> 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><part><chapter><section><para> #: freeculture.xml:9007 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><part><chapter><section><title> #: freeculture.xml:9020 msgid "Together" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9022 msgid "" "There is something innocent and obvious about the claim of the copyright " "warriors that the government should <quote>protect my property.</quote> 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><part><chapter><section><para> #: freeculture.xml:9028 msgid "" "But when we see how dramatically this <quote>property</quote> 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 <quote>property</quote> 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><part><chapter><section><para> #: freeculture.xml:9044 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><part><chapter><section><para> #: freeculture.xml:9050 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><part><chapter><section><para> #: freeculture.xml:9062 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 " "<emphasis>reductions</emphasis> 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><part><chapter><section><para> #: freeculture.xml:9074 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: <emphasis>Never in our " "history have fewer had a legal right to control more of the development of " "our culture than now</emphasis>." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:9098 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> Siva Vaidhyanathan captures a " "similar point in his <quote>four surrenders</quote> of copyright law in the " "digital age. See Vaidhyanathan, 159–60." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9083 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. <emphasis>Never</emphasis> 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><part><chapter><section><para> #: freeculture.xml:9104 msgid "" "<emphasis role='strong'>This has been</emphasis> a long chapter. Its point " "can now be briefly stated." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9108 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><part><chapter><section><informaltable><tgroup><thead><row><entry> #: freeculture.xml:9120 freeculture.xml:9157 msgid "PUBLISH" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry> #: freeculture.xml:9121 freeculture.xml:9158 freeculture.xml:9196 freeculture.xml:9228 msgid "TRANSFORM" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:9126 freeculture.xml:9163 freeculture.xml:9201 freeculture.xml:9233 msgid "Commercial" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:9127 freeculture.xml:9164 freeculture.xml:9165 freeculture.xml:9202 freeculture.xml:9203 freeculture.xml:9234 freeculture.xml:9235 freeculture.xml:9239 freeculture.xml:9240 msgid "©" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:9128 freeculture.xml:9132 freeculture.xml:9133 freeculture.xml:9169 freeculture.xml:9170 freeculture.xml:9208 msgid "Free" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:9131 freeculture.xml:9168 freeculture.xml:9206 freeculture.xml:9238 msgid "Noncommercial" msgstr "" #. PAGE BREAK 182 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9140 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><part><chapter><section><para> #: freeculture.xml:9149 msgid "By the end of the nineteenth century, the law had changed to this:" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9177 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><part><chapter><section><para> #: freeculture.xml:9183 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><part><chapter><section><informaltable><tgroup><thead><row><entry> #: freeculture.xml:9195 freeculture.xml:9227 msgid "COPY" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:9207 msgid "© / Free" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9215 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><part><chapter><section><para> #: freeculture.xml:9247 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><part><chapter><section><para> #: freeculture.xml:9255 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><part><chapter><section><para> #: freeculture.xml:9261 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 <xref xrefstyle=\"select: labelnumber\" linkend=\"recorders\"/> and " "<xref xrefstyle=\"select: labelnumber\" linkend=\"transformers\"/>, 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 "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:9279 msgid "legal realist movement" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:9279 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> 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, <quote>The Disintegration of Property,</quote> in " "<citetitle>Nomos XXII: Property</citetitle>, J. Roland Pennock and John W. " "Chapman, eds. (New York: New York University Press, 1980)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9273 msgid "" "The issue is therefore not simply whether copyright is property. Of course " "copyright is a kind of <quote>property,</quote> 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 <quote>copyright</quote> did not control <emphasis>at " "all</emphasis> 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><part><chapter><section><para> #: freeculture.xml:9298 msgid "" "We achieved that free culture because our law respected important limits on " "the scope of the interests protected by <quote>property.</quote> The very " "birth of <quote>copyright</quote> as a statutory right recognized those " "limits, by granting copyright owners protection for a limited time only (the " "story of chapter <xref xrefstyle=\"select: labelnumber\" " "linkend=\"founders\"/>). The tradition of <quote>fair use</quote> 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 <xref xrefstyle=\"select: labelnumber\" " "linkend=\"recorders\"/>). Adding statutory rights where markets might stifle " "innovation is another familiar limit on the property right that copyright is " "(chapter <xref xrefstyle=\"select: labelnumber\" " "linkend=\"transformers\"/>). 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 <xref xrefstyle=\"select: " "labelnumber\" linkend=\"collectors\"/>). 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><part><chapter><section><para> #: freeculture.xml:9321 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><part><title> #: freeculture.xml:9338 msgid "Puzzles" msgstr "" #. type: Content of: <book><part><chapter><title> #: freeculture.xml:9342 msgid "Chapter Eleven: Chimera" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:9343 msgid "chimeras" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:9344 msgid "Wells, H. G." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:9345 msgid "<quote>Country of the Blind, The</quote> (Wells)" msgstr "" #. f1. #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:9353 msgid "" "H. G. Wells, <quote>The Country of the Blind</quote> (1904, 1911). See " "H. G. Wells, <citetitle>The Country of the Blind and Other " "Stories</citetitle>, Michael Sherborne, ed. (New York: Oxford University " "Press, 1996)." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9348 msgid "" "<emphasis role='strong'>In a well-known</emphasis> 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 <quote>sweet water, pasture, an even " "climate, slopes of rich brown soil with tangles of a shrub that bore an " "excellent fruit.</quote> But the villagers are all blind. Nunez takes this " "as an opportunity. <quote>In the Country of the Blind,</quote> he tells " "himself, <quote>the One-Eyed Man is King.</quote> So he resolves to live " "with the villagers to explore life as a king." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9365 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 " "<quote>blind.</quote> They don't have the word " "<citetitle>blind</citetitle>. 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. <quote><quote>You don't understand,</quote> " "he cried, in a voice that was meant to be great and resolute, and which " "broke. <quote>You are blind and I can see. Leave me alone!</quote></quote>" msgstr "" #. PAGE BREAK 187 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9377 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 <quote>the most beautiful thing in the whole " "of creation,</quote> understands the beauty of sight. Nunez's description of " "what he sees <quote>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.</quote> <quote>She " "did not believe,</quote> Wells tells us, and <quote>she could only half " "understand, but she was mysteriously delighted.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9388 msgid "" "When Nunez announces his desire to marry his <quote>mysteriously " "delighted</quote> love, the father and the village object. <quote>You see, " "my dear,</quote> her father instructs, <quote>he's an idiot. He has " "delusions. He can't do anything right.</quote> They take Nunez to the " "village doctor." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9394 msgid "" "After a careful examination, the doctor gives his opinion. <quote>His brain " "is affected,</quote> he reports." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9398 msgid "" "<quote>What affects it?</quote> the father asks. <quote>Those queer things " "that are called the eyes … are diseased … in such a way as to " "affect his brain.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9403 msgid "" "The doctor continues: <quote>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].</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9409 msgid "" "<quote>Thank Heaven for science!</quote> 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.)" msgstr "" #. PAGE BREAK 188 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9415 msgid "" "<emphasis role='strong'>It sometimes</emphasis> happens that the eggs of " "twins fuse in the mother's womb. That fusion produces a " "<quote>chimera.</quote> 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. <quote>But the DNA shows with 100 percent certainty that she was " "not the person whose blood was at the scene. …</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9429 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 <quote>person</quote> should " "reflect this reality." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9437 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, <quote>the copyright wars,</quote> the more I think we're dealing " "with a chimera. For example, in the battle over the question <quote>What is " "p2p file sharing?</quote> both sides have it right, and both sides have it " "wrong. One side says, <quote>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.</quote> 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><part><chapter><para> #: freeculture.xml:9451 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 " "<quote>friends</quote> beyond recognition to say <quote>my ten thousand best " "friends</quote> can get access. Whether or not sharing my music with my best " "friend is what <quote>we have always been allowed to do,</quote> we have not " "always been allowed to share music with <quote>our ten thousand best " "friends.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9460 msgid "" "Likewise, when the other side says, <quote>File sharing is just like walking " "into a Tower Records and taking a CD off the shelf and walking out with " "it,</quote> 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><part><chapter><para> #: freeculture.xml:9471 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><part><chapter><para> #: freeculture.xml:9481 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><part><chapter><section><indexterm><primary> #: freeculture.xml:9497 freeculture.xml:9788 freeculture.xml:10891 msgid "ISPs (Internet service providers), user identities revealed by" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:9528 msgid "Conyers, John, Jr." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:9529 freeculture.xml:10285 msgid "Berman, Howard L." msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:9497 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> For an excellent summary, see the " "report prepared by GartnerG2 and the Berkman Center for Internet and Society " "at Harvard Law School, <quote>Copyright and Digital Media in a Post-Napster " "World,</quote> 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, " "<quote>House Bill Aims to Up Stakes on Piracy,</quote> <citetitle>Los " "Angeles Times</citetitle>, 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 " "<citetitle>RIAA</citetitle> v. <citetitle>Verizon Internet Services (In " "re. Verizon Internet Services)</citetitle>, 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, " "<quote>Downloading Could Lead to Fines,</quote> 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, <quote>RIAA Steps Up Bid to Force BC, MIT to " "Name Students,</quote> <citetitle>Boston Globe</citetitle>, 8 August 2003, " "D3, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#36</ulink>. <placeholder type=\"indexterm\" id=\"1\"/> <placeholder " "type=\"indexterm\" id=\"2\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9488 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><part><chapter><para> #: freeculture.xml:9535 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><part><chapter><para> #: freeculture.xml:9542 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 " "<emphasis>either</emphasis> 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><part><chapter><para> #: freeculture.xml:9554 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><part><chapter><para> #: freeculture.xml:9562 msgid "" "I'm not talking about the opportunities for kids to <quote>steal</quote> " "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><part><chapter><blockquote><para> #: freeculture.xml:9575 msgid "" "eMusic opposes music piracy. We are a distributor of copyrighted material, " "and we want to protect those rights." msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:9579 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><part><chapter><blockquote><para><footnote><para> #: freeculture.xml:9596 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><part><chapter><blockquote><para> #: freeculture.xml:9586 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><part><chapter><section><indexterm><primary> #: freeculture.xml:9610 freeculture.xml:9988 msgid "Vivendi Universal" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9607 msgid "" "In April 2001, eMusic.com was purchased by Vivendi Universal, one of " "<quote>the major labels.</quote> Its position on these matters has now " "changed. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9613 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><part><chapter><title> #: freeculture.xml:9621 msgid "Chapter Twelve: Harms" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9623 msgid "" "<emphasis role='strong'>To fight</emphasis> <quote>piracy,</quote> to " "protect <quote>property,</quote> 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><part><chapter><para> #: freeculture.xml:9631 msgid "" "My aim so far has been to describe the consequences of this war, in " "particular, the consequences for <quote>free culture.</quote> But my aim now " "is to extend this description of consequences into an argument. Is this war " "justified?" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9637 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 <quote>intellectual property</quote> is at its greatest " "in our history." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9645 msgid "" "Yet <quote>common sense</quote> 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 <quote>piracy</quote> still has play." msgstr "" #. PAGE BREAK 193 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9653 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><part><chapter><section><title> #: freeculture.xml:9660 msgid "Constraining Creators" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9662 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:9676 msgid "digital sharing within" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9679 msgid "" "This digital <quote>capturing and sharing</quote> 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 <quote>capturing and sharing</quote> 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><part><chapter><section><para> #: freeculture.xml:9690 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><part><chapter><section><para> #: freeculture.xml:9700 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><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:9710 freeculture.xml:9734 msgid "WorldCom" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:9713 msgid "doctors malpractice claims against" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:9729 msgid "" "See Lynne W. Jeter, <citetitle>Disconnected: Deceit and Betrayal at " "WorldCom</citetitle> (Hoboken, N.J.: John Wiley & Sons, 2003), 176, 204; " "for details of the settlement, see MCI press release, <quote>MCI Wins " "U.S. District Court Approval for SEC Settlement</quote> (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><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:9751 msgid "tort reform" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:9752 msgid "Bush, George W." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:9742 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, <quote>Measure Stalls in Senate: <quote>We'll Be " "Back,</quote> Say Tort Reformers,</quote> amednews.com, 28 July 2003, " "available at <ulink url=\"http://free-culture.cc/notes/\">link #38</ulink>, " "and <quote>Senate Turns Back Malpractice Caps,</quote> 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\"/> <placeholder " "type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9716 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 <xref " "xrefstyle=\"select: labelnumber\" linkend=\"catalogs\"/> 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?" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:9758 msgid "art, underground" msgstr "" #. f3. #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:9779 msgid "" "See Danit Lidor, <quote>Artists Just Wanna Be Free,</quote> " "<citetitle>Wired</citetitle>, 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><part><chapter><section><para> #: freeculture.xml:9760 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 " "<quote>pirates.</quote> 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 <quote>illegal " "art</quote> tour the United States.<placeholder type=\"footnote\" id=\"0\"/> " "In what does their <quote>illegality</quote> consist? In the act of mixing " "the culture around us with an expression that is critical or reflective." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9790 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 <xref xrefstyle=\"select: " "labelnumber\" linkend=\"property-i\"/>. 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><part><chapter><section><para> #: freeculture.xml:9803 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><part><chapter><section><para> #: freeculture.xml:9814 msgid "" "Lawyers rarely see this because lawyers are rarely empirical. As I described " "in chapter <xref xrefstyle=\"select: labelnumber\" linkend=\"recorders\"/>, " "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><part><chapter><section><para> #: freeculture.xml:9825 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><part><chapter><section><para> #: freeculture.xml:9835 msgid "" "Judges and lawyers can tell themselves that fair use provides adequate " "<quote>breathing room</quote> 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 <quote>law</quote> with which judges comfort themselves." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9846 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 <quote>copyright</quote> 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><part><chapter><section><para> #: freeculture.xml:9857 msgid "As Jed Horovitz, the businessman behind Video Pipeline, said to me," msgstr "" #. PAGE BREAK 197 #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:9861 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, <quote>This has been cleared.</quote> 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><part><chapter><section><title> #: freeculture.xml:9874 msgid "Constraining Innovators" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:9875 msgid "innovation hampered by" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:9876 msgid "industry establishment opposed to" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9879 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><part><chapter><section><para> #: freeculture.xml:9888 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, " "<xref xrefstyle=\"select: pagenumber\" linkend=\"innovators\"/> pages into a " "book like this), then you can see this other aspect by substituting " "<quote>free market</quote> every place I've spoken of <quote>free " "culture.</quote> The point is the same, even if the interests affecting " "culture are more fundamental." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9899 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><part><chapter><section><indexterm><primary> #: freeculture.xml:9912 freeculture.xml:10033 freeculture.xml:10039 msgid "Barry, Hank" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:9913 freeculture.xml:10045 msgid "venture capitalists" msgstr "" #. PAGE BREAK 198 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9915 msgid "" "This is the single most dramatic effect of the shift in regulatory strategy " "that I described in chapter <xref xrefstyle=\"select: labelnumber\" " "linkend=\"property-i\"/>. 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 <quote>nuclear pall</quote> that has fallen over the " "Valley—has been learned." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9930 msgid "" "Consider one example to make the point, a story whose beginning I told in " "<citetitle>The Future of Ideas</citetitle> and which has progressed in a way " "that even I (pessimist extraordinaire) would never have predicted." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:9934 msgid "MP3.com" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:9935 msgid "my.mp3.com" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:9936 msgid "Roberts, Michael" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9938 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:9946 msgid "preference data on" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9948 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." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9955 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><part><chapter><section><para> #: freeculture.xml:9967 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><part><chapter><section><para> #: freeculture.xml:9977 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:9989 freeculture.xml:10034 msgid "distribution technology targeted in" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:9994 freeculture.xml:10106 msgid "outsize penalties of" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9996 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><part><chapter><section><para> #: freeculture.xml:10006 msgid "That part of the story I have told before. Now consider its conclusion." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10009 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><part><chapter><section><para> #: freeculture.xml:10020 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><part><chapter><section><indexterm><primary> #: freeculture.xml:10035 msgid "BMW" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:10036 msgid "cars, MP3 sound systems in" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:10038 msgid "Hummer, John" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:10040 msgid "Hummer Winblad" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:10041 msgid "MP3 players" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:10042 msgid "venture capital for" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para><indexterm><primary> #: freeculture.xml:10043 freeculture.xml:10089 msgid "Needleman, Rafe" msgstr "" #. f4. #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10053 msgid "" "See Joseph Menn, <quote>Universal, EMI Sue Napster Investor,</quote> " "<citetitle>Los Angeles Times</citetitle>, 23 April 2003. For a parallel " "argument about the effects on innovation in the distribution of music, see " "Janelle Brown, <quote>The Music Revolution Will Not Be Digitized,</quote> " "Salon.com, 1 June 2001, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #42</ulink>. See also Jon " "Healey, <quote>Online Music Services Besieged,</quote> <citetitle>Los " "Angeles Times</citetitle>, 28 May 2001." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10047 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 <citetitle>Business 2.0</citetitle>, " "Rafe Needleman describes a discussion with BMW:" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:10085 msgid "" "Rafe Needleman, <quote>Driving in Cars with MP3s,</quote> " "<citetitle>Business 2.0</citetitle>, 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><part><chapter><section><blockquote><para> #: freeculture.xml:10076 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><part><chapter><section><para> #: freeculture.xml:10097 msgid "" "This is the world of the mafia—filled with <quote>your money or your " "life</quote> 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:10105 msgid "transaction cost of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:10107 msgid "legal murkiness on" msgstr "" #. PAGE BREAK 201 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10111 msgid "" "The point is not that businesses should have a right to start illegal " "enterprises. The point is the definition of <quote>illegal.</quote> 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><part><chapter><section><para> #: freeculture.xml:10125 msgid "" "The point is directly parallel to the crunchy-lefty point about fair " "use. Whatever the <quote>real</quote> 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 overregulated-regulated market." msgstr "" #. PAGE BREAK 202 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10137 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." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10158 msgid "" "<emphasis role='strong'>The uncertainty</emphasis> 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><part><chapter><section><para> #: freeculture.xml:10165 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 " "<quote>bug.</quote> 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 <quote>piracy,</quote> then, this " "response says, we should break the kneecaps of the Internet." msgstr "" #. f6. #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10180 msgid "" "<quote>Copyright and Digital Media in a Post-Napster World,</quote> " "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><part><chapter><section><para><footnote><para> #: freeculture.xml:10193 msgid "GartnerG2, 26–27." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10176 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 <quote>broadcast flag</quote> 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><part><chapter><section><para> #: freeculture.xml:10197 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:10206 freeculture.xml:12141 msgid "Intel" msgstr "" #. f8. #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10212 msgid "" "See David McGuire, <quote>Tech Execs Square Off Over Piracy,</quote> " "Newsbytes, February 2002 (Entertainment)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10208 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><part><chapter><section><para> #: freeculture.xml:10220 msgid "" "<emphasis role='strong'>There is one</emphasis> 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><part><chapter><section><para> #: freeculture.xml:10225 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 "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:10243 msgid "Digital Copyright (Litman)" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10241 msgid "" "Jessica Litman, <citetitle>Digital Copyright</citetitle> (Amherst, N.Y.: " "Prometheus Books, 2001). <placeholder type=\"indexterm\" id=\"0\"/> " "<placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10235 msgid "" "As I described in chapter <xref xrefstyle=\"select: labelnumber\" " "linkend=\"property-i\"/>, despite this feature of copyright as regulation, " "and subject to important qualifications outlined by Jessica Litman in her " "book <citetitle>Digital Copyright</citetitle>,<placeholder type=\"footnote\" " "id=\"0\"/> overall this history of copyright is not bad. As chapter <xref " "xrefstyle=\"select: labelnumber\" linkend=\"property-i\"/> 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><part><chapter><section><para> #: freeculture.xml:10254 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:10260 msgid "radio on" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:10265 msgid "Grokster, Ltd." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10265 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> The only circuit court exception " "is found in <citetitle>Recording Industry Association of America " "(RIAA)</citetitle> v. <citetitle>Diamond Multimedia Systems</citetitle>, 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 " "<citetitle>Metro-Goldwyn-Mayer Studios, " "Inc</citetitle>. v. <citetitle>Grokster, Ltd</citetitle>., 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><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:10284 msgid "Tauzin, Billy" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:10286 msgid "Hollings, Fritz" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10284 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> <placeholder " "type=\"indexterm\" id=\"3\"/> 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 <quote>broadcast " "flag</quote> 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, <quote>Copyright and " "Digital Media in a Post-Napster World,</quote> 27 June 2003, 33–34, " "available at <ulink url=\"http://free-culture.cc/notes/\">link #44</ulink>." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10263 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:10308 msgid "Monroe, Marilyn" msgstr "" #. PAGE BREAK 204 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10313 msgid "" "As I described in chapter <xref xrefstyle=\"select: labelnumber\" " "linkend=\"pirates\"/>, when a radio station plays a song, the recording " "artist doesn't get paid for that <quote>radio performance</quote> unless he " "or she is also the composer. So, for example if Marilyn Monroe had recorded " "a version of <quote>Happy Birthday</quote>—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 <quote>Happy Birthday</quote> would get some money, whereas " "Marilyn Monroe would not." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10324 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><part><chapter><section><para> #: freeculture.xml:10336 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 " "<quote>tune in</quote> 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><part><chapter><section><para> #: freeculture.xml:10345 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><part><chapter><section><para> #: freeculture.xml:10361 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><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:10385 msgid "Lessing, 239." msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:10371 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><part><chapter><section><para><footnote><para> #: freeculture.xml:10395 msgid "Ibid., 229." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10390 msgid "" "This potential for FM radio was never realized—not because Armstrong " "was wrong about the technology, but because he underestimated the power of " "<quote>vested interests, habits, customs and legislation</quote><placeholder " "type=\"footnote\" id=\"0\"/> to retard the growth of this competing " "technology." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10400 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:10409 msgid "on radio" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:10413 msgid "Internet radio hampered by" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:10414 freeculture.xml:10567 msgid "on Internet radio fees" msgstr "" #. PAGE BREAK 206 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10417 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 <quote>Happy Birthday</quote> on the " "air, <emphasis>Internet radio does</emphasis>. 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><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:10456 msgid "CARP (Copyright Arbitration Royalty Panel)" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10439 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, <quote>Copyright as " "Entry Policy: The Case of Digital Distribution,</quote> <citetitle>Antitrust " "Bulletin</citetitle> (Summer/Fall 2002): 461: <quote>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.</quote> <placeholder type=\"indexterm\" id=\"0\"/> " "<placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10432 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><part><chapter><section><para> #: freeculture.xml:10468 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 <emphasis>every listening " "transaction</emphasis>:" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10476 msgid "name of the service;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10479 msgid "channel of the program (AM/FM stations use station ID);" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10482 msgid "type of program (archived/looped/live);" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10485 msgid "date of transmission;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10488 msgid "time of transmission;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10491 msgid "time zone of origination of transmission;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10494 msgid "numeric designation of the place of the sound recording within the program;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10497 msgid "duration of transmission (to nearest second);" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10500 msgid "sound recording title;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10503 msgid "ISRC code of the recording;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10506 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><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10509 msgid "featured recording artist;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10512 msgid "retail album title;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10515 msgid "recording label;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10518 msgid "UPC code of the retail album;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10521 msgid "catalog number;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10524 msgid "copyright owner information;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10527 msgid "musical genre of the channel or program (station format);" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10530 msgid "name of the service or entity;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10533 msgid "channel or program;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10536 msgid "date and time that the user logged in (in the user's time zone);" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10539 msgid "date and time that the user logged out (in the user's time zone);" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10542 msgid "time zone where the signal was received (user);" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10545 msgid "unique user identifier;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10548 msgid "the country in which the user received the transmissions." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10553 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 <emphasis>type of copyright fee</emphasis> that terrestrial radio does " "not." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10561 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><section><section><indexterm><primary> #: freeculture.xml:10565 freeculture.xml:15433 msgid "Real Networks" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10571 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><part><chapter><section><blockquote><para> #: freeculture.xml:10577 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, … <quote>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. …</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:10593 msgid "" "And the RIAA experts said, <quote>Well, we don't really model this as an " "industry with thousands of webcasters, <emphasis>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>.</quote> (Emphasis added.)" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10605 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><part><chapter><section><title> #: freeculture.xml:10621 msgid "Corrupting Citizens" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10623 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><part><chapter><section><para> #: freeculture.xml:10629 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><part><chapter><section><para><footnote><para> #: freeculture.xml:10638 msgid "" "Mike Graziano and Lee Rainie, <quote>The Music Downloading Deluge,</quote> " "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><part><chapter><section><para> #: freeculture.xml:10634 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 <citetitle>The New York Times</citetitle>, 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><part><chapter><section><para><footnote><para> #: freeculture.xml:10672 msgid "" "Alex Pham, <quote>The Labels Strike Back: N.Y. Girl Settles RIAA " "Case,</quote> <citetitle>Los Angeles Times</citetitle>, 10 September 2003, " "Business." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10659 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:10683 msgid "alcohol prohibition" msgstr "" #. f17. #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10695 msgid "" "Jeffrey A. Miron and Jeffrey Zwiebel, <quote>Alcohol Consumption During " "Prohibition,</quote> <citetitle>American Economic Review</citetitle> 81, " "no. 2 (1991): 242." msgstr "" #. f18. #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10703 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><part><chapter><section><para><footnote><para> #: freeculture.xml:10713 msgid "" "See James Andreoni, Brian Erard, and Jonathon Feinstein, <quote>Tax " "Compliance,</quote> <citetitle>Journal of Economic Literature</citetitle> 36 " "(1998): 818 (survey of compliance literature)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10685 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 <quote>free " "society,</quote> 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><part><chapter><section><indexterm><primary> #: freeculture.xml:10721 msgid "law schools" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10723 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 <quote>ethics.</quote> 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 " "<quote>normally</quote> entails a certain degree of illegality." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10740 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><part><chapter><section><para> #: freeculture.xml:10753 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><part><chapter><section><para> #: freeculture.xml:10760 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 " "<quote>sharing.</quote> We need to be able to call these twenty million " "Americans <quote>citizens,</quote> not <quote>felons.</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10774 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><part><chapter><section><para> #: freeculture.xml:10786 msgid "This abstract point can be made more clear with a particular example." msgstr "" #. PAGE BREAK 212 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10789 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 <quote>use</quote> of the " "recordings is free." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10800 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 <quote>free</quote> to copy, or " "<quote>rip,</quote> music from my records onto a computer hard disk. Indeed, " "Apple Corporation went so far as to suggest that <quote>freedom</quote> was " "a right: In a series of commercials, Apple endorsed the <quote>Rip, Mix, " "Burn</quote> capacities of digital technologies." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:10808 msgid "Andromeda" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:10809 msgid "mix technology and" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10811 msgid "" "This <quote>use</quote> 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><part><chapter><section><para> #: freeculture.xml:10822 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><part><chapter><section><para> #: freeculture.xml:10832 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 <quote>digital rights management</quote> system." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10847 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><part><chapter><section><para> #: freeculture.xml:10856 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><part><chapter><section><para> #: freeculture.xml:10867 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><part><chapter><section><para> #: freeculture.xml:10876 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 "" #. PAGE BREAK 214 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10882 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." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10893 msgid "" "<emphasis role='strong'>There's one more</emphasis> 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 <quote>collateral " "damage</quote> that <quote>arises whenever you turn a very large percentage " "of the population into criminals.</quote> This is the collateral damage to " "civil liberties generally." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:10901 freeculture.xml:11002 msgid "von Lohmann, Fred" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10903 msgid "" "<quote>If you can treat someone as a putative lawbreaker,</quote> von " "Lohmann explains," msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:10908 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, <quote>Oh, well, but that person's a criminal, a " "lawbreaker.</quote> Well, what this campaign against file sharing has done " "is turn a remarkable percentage of the American Internet-using population " "into <quote>lawbreakers.</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10920 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><part><chapter><section><para> #: freeculture.xml:10925 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><part><chapter><section><para><footnote><para> #: freeculture.xml:10943 msgid "" "See Frank Ahrens, <quote>RIAA's Lawsuits Meet Surprised Targets; Single " "Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,</quote> " "<citetitle>Washington Post</citetitle>, 10 September 2003, E1; Chris Cobbs, " "<quote>Worried Parents Pull Plug on File <quote>Stealing</quote>; With the " "Music Industry Cracking Down on File Swapping, Parents are Yanking Software " "from Home PCs to Avoid Being Sued,</quote> <citetitle>Orlando Sentinel " "Tribune</citetitle>, 30 August 2003, C1; Jefferson Graham, <quote>Recording " "Industry Sues Parents,</quote> <citetitle>USA Today</citetitle>, 15 " "September 2003, 4D; John Schwartz, <quote>She Says She's No Music Pirate. No " "Snoop Fan, Either,</quote> <citetitle>New York Times</citetitle>, 25 " "September 2003, C1; Margo Varadi, <quote>Is Brianna a Criminal?</quote> " "<citetitle>Toronto Star</citetitle>, 18 September 2003, P7." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10934 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:10956 msgid "recording industry tracking users of" msgstr "" #. f21. #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10962 msgid "" "See <quote>Revealed: How RIAA Tracks Downloaders: Music Industry Discloses " "Some Methods Used,</quote> CNN.com, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #47</ulink>." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10958 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 <quote>fingerprint.</quote>" msgstr "" #. f22. #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10983 msgid "" "See Jeff Adler, <quote>Cambridge: On Campus, Pirates Are Not " "Penitent,</quote> <citetitle>Boston Globe</citetitle>, 18 May 2003, City " "Weekly, 1; Frank Ahrens, <quote>Four Students Sued over Music Sites; " "Industry Group Targets File Sharing at Colleges,</quote> " "<citetitle>Washington Post</citetitle>, 4 April 2003, E1; Elizabeth " "Armstrong, <quote>Students <quote>Rip, Mix, Burn</quote> at Their Own " "Risk,</quote> <citetitle>Christian Science Monitor</citetitle>, 2 September " "2003, 20; Robert Becker and Angela Rozas, <quote>Music Pirate Hunt Turns to " "Loyola; Two Students Names Are Handed Over; Lawsuit Possible,</quote> " "<citetitle>Chicago Tribune</citetitle>, 16 July 2003, 1C; Beth Cox, " "<quote>RIAA Trains Antipiracy Guns on Universities,</quote> " "<citetitle>Internet News</citetitle>, 30 January 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #48</ulink>; Benny Evangelista, " "<quote>Download Warning 101: Freshman Orientation This Fall to Include " "Record Industry Warnings Against File Sharing,</quote> <citetitle>San " "Francisco Chronicle</citetitle>, 11 August 2003, E11; <quote>Raid, Letters " "Are Weapons at Universities,</quote> <citetitle>USA Today</citetitle>, 26 " "September 2000, 3D." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10971 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 <quote>cooperating</quote> 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 <quote>criminal.</quote> 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 "" #. PAGE BREAK 216 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:11004 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 " "<quote>contraband</quote> 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," msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:11020 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><part><chapter><section><para> #: freeculture.xml:11040 msgid "" "When forty to sixty million Americans are considered " "<quote>criminals</quote> under the law, and when the law could achieve the " "same objective— securing rights to authors—without these " "millions being considered <quote>criminals,</quote> 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><part><title> #: freeculture.xml:11053 msgid "Balances" msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:11058 msgid "" "<emphasis role='strong'>So here's</emphasis> 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><part><partintro><para> #: freeculture.xml:11065 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><part><partintro><para> #: freeculture.xml:11073 msgid "" "<emphasis role='strong'>A war</emphasis> 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><part><partintro><para> #: freeculture.xml:11083 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><part><partintro><para> #: freeculture.xml:11091 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><part><partintro><para> #: freeculture.xml:11096 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><part><partintro><para> #: freeculture.xml:11102 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><part><chapter><title> #: freeculture.xml:11112 msgid "Chapter Thirteen: Eldred" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11113 msgid "Eldred, Eric" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11114 msgid "Hawthorne, Nathaniel" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11116 msgid "" "<emphasis role='strong'>In 1995</emphasis>, 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><part><chapter><indexterm><secondary> #: freeculture.xml:11124 msgid "of public-domain literature" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:11125 msgid "library of works derived from" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11127 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><part><chapter><para> #: freeculture.xml:11136 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><part><chapter><indexterm><primary> #: freeculture.xml:11146 msgid "Scarlet Letter, The (Hawthorne)" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11148 msgid "" "Eldred's freedom to do this with Hawthorne's work grew from the same source " "as Disney's. Hawthorne's <citetitle>Scarlet Letter</citetitle> 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 (<citetitle>Cinderella</citetitle>), sometimes not " "(<citetitle>The Hunchback of Notre Dame</citetitle>, <citetitle>Treasure " "Planet</citetitle>). These are all commercial publications of public domain " "works." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11173 freeculture.xml:12241 msgid "pornography" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:11173 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> 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><part><chapter><para> #: freeculture.xml:11162 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 " "<quote>noncommercial publishing industry,</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:11193 msgid "Frost, Robert" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11194 msgid "New Hampshire (Frost)" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11198 msgid "" "As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection " "of poems <citetitle>New Hampshire</citetitle> 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 <xref " "xrefstyle=\"select: labelnumber\" linkend=\"property-i\"/>, 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 "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:11213 freeculture.xml:11225 msgid "Bono, Mary" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:11214 freeculture.xml:11226 msgid "Bono, Sonny" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><secondary> #: freeculture.xml:11227 msgid "perpetual copyright term proposed by" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:11225 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> The full text is: " "<quote>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,</quote> 144 " "Cong. Rec. H9946, 9951-2 (October 7, 1998)." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11220 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 <quote>copyrights should be " "forever.</quote><placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:11238 msgid "felony punishment for infringement of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11239 msgid "NET (No Electronic Theft) Act (1998)" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11240 msgid "No Electronic Theft (NET) Act (1998)" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:11241 msgid "felony punishments for" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11243 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><part><chapter><indexterm><secondary> #: freeculture.xml:11252 freeculture.xml:11464 freeculture.xml:12209 msgid "constitutional powers of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:11255 freeculture.xml:11301 msgid "Eldred case involvement of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11257 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><part><chapter><blockquote><para> #: freeculture.xml:11268 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><part><chapter><para> #: freeculture.xml:11275 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 <quote>commerce among the several states</quote> or " "<quote>declare War.</quote> But here, the <quote>something</quote> is " "something quite specific—to <quote>promote … " "Progress</quote>—through means that are also specific— by " "<quote>securing</quote> <quote>exclusive Rights</quote> (i.e., copyrights) " "<quote>for limited Times.</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11287 freeculture.xml:12827 msgid "Jaszi, Peter" msgstr "" #. PAGE BREAK 223 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11289 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 <quote>limited</quote> 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 <quote>on the installment plan,</quote> as " "Professor Peter Jaszi so nicely put it." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11303 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><part><chapter><para> #: freeculture.xml:11314 msgid "" "For this is the core of the corruption in our present system of " "government. <quote>Corruption</quote> not in the sense that representatives " "are bribed. Rather, <quote>corruption</quote> 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><part><chapter><para> #: freeculture.xml:11323 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><part><chapter><para> #: freeculture.xml:11333 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><part><chapter><para> #: freeculture.xml:11340 msgid "" "<quote>Next year,</quote> the adviser announces, <quote>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.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11348 msgid "" "<quote>There's a proposal in Congress, however,</quote> she continues, " "<quote>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.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11354 msgid "" "<quote>Hope?</quote> a fellow board member says. <quote>Can't we be doing " "something about it?</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11358 msgid "" "<quote>Well, obviously, yes,</quote> the adviser responds. <quote>We could " "contribute to the campaigns of a number of representatives to try to assure " "that they support the bill.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11363 msgid "" "You hate politics. You hate contributing to campaigns. So you want to know " "whether this disgusting practice is worth it. <quote>How much would we get " "if this extension were passed?</quote> you ask the adviser. <quote>How much " "is it worth?</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11369 msgid "" "<quote>Well,</quote> the adviser says, <quote>if you're confident that you " "will continue to get at least $100,000 a year from these copyrights, and you " "use the <quote>discount rate</quote> that we use to evaluate estate " "investments (6 percent), then this law would be worth $1,146,000 to the " "estate.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11375 msgid "" "You're a bit shocked by the number, but you quickly come to the correct " "conclusion:" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11379 msgid "" "<quote>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?</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11385 msgid "" "<quote>Absolutely,</quote> the adviser responds. <quote>It is worth it to " "you to contribute up to the <quote>present value</quote> of the income you " "expect from these copyrights. Which for us means over $1,000,000.</quote>" msgstr "" #. PAGE BREAK 225 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11391 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><part><chapter><para> #: freeculture.xml:11402 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><part><chapter><para><footnote><para> #: freeculture.xml:11414 msgid "" "Associated Press, <quote>Disney Lobbying for Copyright Extension No Mickey " "Mouse Effort; Congress OKs Bill Granting Creators 20 More Years,</quote> " "<citetitle>Chicago Tribune</citetitle>, 17 October 1998, 22." msgstr "" #. f4. #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:11421 msgid "" "See Nick Brown, <quote>Fair Use No More?: Copyright in the Information " "Age,</quote> available at <ulink url=\"http://free-culture.cc/notes/\">link " "#49</ulink>." msgstr "" #. f5. #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:11429 msgid "" "Alan K. Ota, <quote>Disney in Washington: The Mouse That Roars,</quote> " "<citetitle>Congressional Quarterly This Week</citetitle>, 8 August 1990, " "available at <ulink url=\"http://free-culture.cc/notes/\">link #50</ulink>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11407 msgid "" "In the lobbying that led to the passage of the Sonny Bono Copyright Term " "Extension Act, this <quote>theory</quote> 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><part><chapter><para> #: freeculture.xml:11436 msgid "" "<emphasis role='strong'>Constitutional law</emphasis> 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 " "<quote>limited.</quote> If they could extend it once, they would extend it " "again and again and again." msgstr "" #. PAGE BREAK 226 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11451 msgid "" "It was also my judgment that <emphasis>this</emphasis> 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><part><chapter><indexterm><primary> #: freeculture.xml:11463 freeculture.xml:12366 msgid "commerce, interstate" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11465 freeculture.xml:12367 msgid "interstate commerce" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11467 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 <quote>commerce among the several states</quote> (aka <quote>interstate " "commerce</quote>), 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><part><chapter><para> #: freeculture.xml:11477 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><part><chapter><indexterm><primary> #: freeculture.xml:11483 freeculture.xml:12292 msgid "Rehnquist, William H." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11484 freeculture.xml:11540 freeculture.xml:12295 freeculture.xml:12365 freeculture.xml:12559 freeculture.xml:12656 freeculture.xml:12726 msgid "United States v. Lopez" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11486 msgid "" "The Supreme Court, under Chief Justice Rehnquist's command, changed that in " "<citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>. 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><part><chapter><para><footnote><para> #: freeculture.xml:11501 msgid "" "<citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>, 514 " "U.S. 549, 564 (1995)." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11509 freeculture.xml:12296 msgid "United States v. Morrison" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:11508 msgid "" "<citetitle>United States</citetitle> v. <citetitle>Morrison</citetitle>, 529 " "U.S. 598 (2000). <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11499 msgid "" "<quote>We pause to consider the implications of the government's " "arguments,</quote> 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 <citetitle>Lopez</citetitle> was " "reaffirmed five years later in <citetitle>United States</citetitle> " "v. <citetitle>Morrison</citetitle>.<placeholder type=\"footnote\" id=\"1\"/>" msgstr "" #. f8. #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:11518 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 <quote>limited times</quote> " "notwithstanding." msgstr "" #. PAGE BREAK 227 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11515 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 " "<quote>stopping point</quote> 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><part><chapter><indexterm><secondary> #: freeculture.xml:11539 freeculture.xml:12298 msgid "Supreme Court restraint on" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11542 msgid "" "<emphasis>If</emphasis>, that is, the principle announced in " "<citetitle>Lopez</citetitle> stood for a principle. Many believed the " "decision in <citetitle>Lopez</citetitle> 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 <quote>fidelity</quote> " "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><part><chapter><para> #: freeculture.xml:11560 msgid "" "<emphasis role='strong'>Now let's pause</emphasis> for a moment to make sure " "we understand what the argument in <citetitle>Eldred</citetitle> 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11577 msgid "Nashville Songwriters Association" msgstr "" #. f9. #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:11585 msgid "" "Brief of the Nashville Songwriters Association, " "<citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 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><part><chapter><para> #: freeculture.xml:11579 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 <quote>legal piracy.</quote><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><part><chapter><para> #: freeculture.xml:11595 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><part><chapter><para> #: freeculture.xml:11609 msgid "" "<emphasis role='strong'>It is valuable</emphasis> copyrights that are " "responsible for terms being extended. Mickey Mouse and <quote>Rhapsody in " "Blue.</quote> 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><part><chapter><para><footnote><para> #: freeculture.xml:11627 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, <citetitle>Eldred</citetitle> " "v. <citetitle>Ashcroft</citetitle>, 7, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #52</ulink>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11621 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><part><chapter><para> #: freeculture.xml:11637 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><part><chapter><para> #: freeculture.xml:11650 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><part><chapter><para> #: freeculture.xml:11658 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><part><chapter><para> #: freeculture.xml:11662 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><part><chapter><para> #: freeculture.xml:11669 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><part><chapter><para> #: freeculture.xml:11678 msgid "" "<quote>But there isn't a list of who owns property generally,</quote> the " "apologists for the system respond. <quote>Why should there be a list of " "copyright owners?</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11683 msgid "" "Well, actually, if you think about it, there <emphasis>are</emphasis> 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><part><chapter><para> #: freeculture.xml:11692 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><part><chapter><para> #: freeculture.xml:11707 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><part><chapter><para> #: freeculture.xml:11719 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><part><chapter><indexterm><primary> #: freeculture.xml:11724 msgid "Agee, Michael" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11725 freeculture.xml:12165 msgid "Hal Roach Studios" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11726 msgid "Laurel and Hardy Films" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11727 msgid "Lucky Dog, The" msgstr "" #. f11. #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:11740 msgid "" "See David G. Savage, <quote>High Court Scene of Showdown on Copyright " "Law,</quote> <citetitle>Los Angeles Times</citetitle>, 6 October 2002; David " "Streitfeld, <quote>Classic Movies, Songs, Books at Stake; Supreme Court " "Hears Arguments Today on Striking Down Copyright Extension,</quote> " "<citetitle>Orlando Sentinel Tribune</citetitle>, 9 October 2002." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11729 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, <citetitle>The Lucky " "Dog</citetitle>, 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, <quote>Roach has sold about 60,000 " "videocassettes and 50,000 DVDs of the duo's silent " "films.</quote><placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11747 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><part><chapter><para> #: freeculture.xml:11753 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><part><chapter><para><footnote><para> #: freeculture.xml:11771 msgid "" "Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the " "Petitoners, <citetitle>Eldred</citetitle> " "v. <citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01- 618), " "12. See also Brief of Amicus Curiae filed on behalf of Petitioners by the " "Internet Archive, <citetitle>Eldred</citetitle> " "v. <citetitle>Ashcroft</citetitle>, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #53</ulink>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11764 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 8 mm film.<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11781 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><part><chapter><para> #: freeculture.xml:11789 msgid "" "Or more accurately, <emphasis>owners</emphasis>. 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><part><chapter><para> #: freeculture.xml:11797 msgid "" "<quote>But can't you just restore the film, distribute it, and then pay the " "copyright owner when she shows up?</quote> 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><part><chapter><para> #: freeculture.xml:11808 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><part><chapter><para> #: freeculture.xml:11819 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><part><chapter><para> #: freeculture.xml:11827 msgid "" "<emphasis role='strong'>Of all the</emphasis> 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 " "<quote>engine of free expression.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11835 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><part><chapter><para> #: freeculture.xml:11845 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><part><chapter><para> #: freeculture.xml:11858 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><part><chapter><para> #: freeculture.xml:11865 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 " "<emphasis>copyright-related use</emphasis> 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><part><chapter><para> #: freeculture.xml:11876 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><part><chapter><para> #: freeculture.xml:11885 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><part><chapter><para> #: freeculture.xml:11891 msgid "But this situation has now changed." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11896 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><part><chapter><para> #: freeculture.xml:11909 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><part><chapter><para> #: freeculture.xml:11919 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 " "<emphasis>copyright</emphasis> 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 <emphasis>at all</emphasis> 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><part><chapter><para> #: freeculture.xml:11930 msgid "" "You may well ask, <quote>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?</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11937 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 <quote>the market</quote> 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><part><chapter><para><footnote><para> #: freeculture.xml:11961 msgid "" "Jason Schultz, <quote>The Myth of the 1976 Copyright <quote>Chaos</quote> " "Theory,</quote> 20 December 2002, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #54</ulink>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11949 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 1923 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><part><chapter><para> #: freeculture.xml:11968 msgid "" "<emphasis role='strong'>In January 1999</emphasis>, 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 <quote>limited " "Times</quote> requirement, and (2) that extending terms by another twenty " "years violated the First Amendment." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11977 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><part><chapter><para> #: freeculture.xml:11984 msgid "" "Judge David Sentelle said the CTEA violated the requirement that copyrights " "be for <quote>limited Times</quote> only. His argument was as elegant as it " "was simple: If Congress can extend existing terms, then there is no " "<quote>stopping point</quote> to Congress's power under the Copyright " "Clause. The power to extend existing terms means Congress is not required to " "grant terms that are <quote>limited.</quote> Thus, Judge Sentelle argued, " "the court had to interpret the term <quote>limited Times</quote> 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><part><chapter><para> #: freeculture.xml:11995 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 <quote>en banc</quote> to hear the case." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12000 msgid "Tatel, David" msgstr "" #. PAGE BREAK 236 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12002 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><part><chapter><para> #: freeculture.xml:12011 msgid "" "It was here that most expected <citetitle>Eldred</citetitle> " "v. <citetitle>Ashcroft</citetitle> 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><part><chapter><para> #: freeculture.xml:12019 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><part><chapter><para> #: freeculture.xml:12025 msgid "" "<emphasis role='strong'>It is over</emphasis> 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><part><chapter><para> #: freeculture.xml:12036 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><part><chapter><indexterm><primary> #: freeculture.xml:12041 freeculture.xml:12056 msgid "Steward, Geoffrey" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12042 freeculture.xml:12193 freeculture.xml:12440 msgid "Jones, Day, Reavis and Pogue (Jones Day)" msgstr "" #. PAGE BREAK 237 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12044 msgid "" "<emphasis role='strong'>The mistake</emphasis> 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><part><chapter><indexterm><primary> #: freeculture.xml:12054 freeculture.xml:12437 freeculture.xml:12454 freeculture.xml:12551 freeculture.xml:12776 freeculture.xml:12807 freeculture.xml:12906 msgid "Ayer, Don" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12055 msgid "Bromberg, Dan" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12058 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 <quote>important</quote> 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 <quote>the most powerful media " "companies in the world.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12069 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 " "<quote>right</quote> as in <quote>true,</quote> I thought, but it is " "<quote>wrong</quote> as in <quote>it just shouldn't be that way.</quote> 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><part><chapter><para> #: freeculture.xml:12090 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><part><chapter><para> #: freeculture.xml:12098 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 " "<emphasis>law</emphasis> 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><part><chapter><indexterm><primary> #: freeculture.xml:12116 freeculture.xml:12143 msgid "Eagle Forum" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12117 msgid "Schlafly, Phyllis" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12119 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, <quote>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?</quote> 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." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12133 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 "" #. PAGE BREAK 239 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12145 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." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12157 msgid "American Association of Law Libraries" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12158 msgid "National Writers Union" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12160 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><part><chapter><para> #: freeculture.xml:12167 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><part><chapter><indexterm><primary> #: freeculture.xml:12173 msgid "Akerlof, George" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12174 msgid "Arrow, Kenneth" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12175 msgid "Buchanan, James" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12176 msgid "Coase, Ronald" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12177 msgid "Friedman, Milton" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12179 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 " "<quote>rent-seeking</quote>—the fancy term economists use to describe " "special-interest legislation gone wild." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12189 freeculture.xml:12208 freeculture.xml:12439 freeculture.xml:12808 msgid "Fried, Charles" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12190 msgid "Morrison, Alan" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12191 msgid "Public Citizen" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:12192 freeculture.xml:12438 freeculture.xml:13597 msgid "Reagan, Ronald" msgstr "" #. PAGE BREAK 240 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12195 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." msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:12210 msgid "Commerce Clause of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12212 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." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12224 msgid "" "The government, in defending the statute, had its collection of friends, as " "well. Significantly, however, none of these <quote>friends</quote> 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><part><chapter><para> #: freeculture.xml:12231 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12239 msgid "Gershwin, George" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12240 msgid "Porgy and Bess" msgstr "" #. f14. #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:12250 msgid "" "Brief of Amici Dr. Seuss Enterprise et al., <citetitle>Eldred</citetitle> " "v. <citetitle>Ashcroft</citetitle>, 537 U.S. (2003) (No. 01-618), 19." msgstr "" #. f15. #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:12258 msgid "" "Dinitia Smith, <quote>Immortal Words, Immortal Royalties? Even Mickey Mouse " "Joins the Fray,</quote> <citetitle>New York Times</citetitle>, 28 March " "1998, B7." msgstr "" #. PAGE BREAK 241 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12243 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 " "<quote>glorify drugs or to create pornography.</quote><placeholder " "type=\"footnote\" id=\"0\"/> That was also the motive of the Gershwin " "estate, which defended its <quote>protection</quote> of the work of George " "Gershwin. They refuse, for example, to license <citetitle>Porgy and " "Bess</citetitle> 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." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12267 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, <quote>Give us twenty years to control the speech about " "these icons of American culture. We'll do better with them than anyone " "else.</quote> 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><part><chapter><para> #: freeculture.xml:12279 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." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12286 msgid "" "<emphasis role='strong'>Between February</emphasis> 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><part><chapter><indexterm><primary> #: freeculture.xml:12290 msgid "Kennedy, Anthony" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12291 freeculture.xml:12293 freeculture.xml:12496 msgid "O'Connor, Sandra Day" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12294 msgid "Thomas, Clarence" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12297 msgid "Scalia, Antonin" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:12299 msgid "congressional actions restrained by" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:12300 msgid "factions of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12302 msgid "" "The Supreme Court was divided into two important camps. One camp we called " "<quote>the Conservatives.</quote> The other we called <quote>the " "Rest.</quote> 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 <citetitle>Lopez/Morrison</citetitle> 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><part><chapter><indexterm><primary> #: freeculture.xml:12311 freeculture.xml:12336 freeculture.xml:12701 freeculture.xml:12713 msgid "Breyer, Stephen" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12312 freeculture.xml:12664 msgid "Ginsburg, Ruth Bader" msgstr "" #. PAGE BREAK 242 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12314 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><part><chapter><para> #: freeculture.xml:12326 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><part><chapter><para> #: freeculture.xml:12338 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><part><chapter><para> #: freeculture.xml:12348 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><part><chapter><para> #: freeculture.xml:12356 msgid "" "This analysis of <quote>the Rest</quote> 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><part><chapter><para> #: freeculture.xml:12373 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 " "<citetitle>Lopez</citetitle> 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 <quote>limited.</quote> Our aim would be " "to get the Court to reconcile <citetitle>Eldred</citetitle> with " "<citetitle>Lopez</citetitle>: 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><part><chapter><para> #: freeculture.xml:12387 msgid "" "<emphasis role='strong'>The argument</emphasis> 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><part><chapter><para> #: freeculture.xml:12396 msgid "" "There was some truth to the government's claim, but not much. We certainly " "agreed that Congress had extended existing terms in 1831 and in 1909. And of " "course, in 1962, Congress began extending existing terms " "regularly—eleven times in forty years." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12403 msgid "" "But this <quote>consistency</quote> 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." msgstr "" #. PAGE BREAK 244 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12418 msgid "" "<emphasis role='strong'>Oral argument</emphasis> 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 <quote>mooted</quote> by lawyers who had " "volunteered to help in the case. Such <quote>moots</quote> are basically " "practice rounds, where wannabe justices fire questions at wannabe winners." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12428 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><part><chapter><para> #: freeculture.xml:12442 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:" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12448 msgid "" "<quote>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.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12456 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." msgstr "" #. PAGE BREAK 245 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12466 msgid "" "<emphasis role='strong'>The night before</emphasis> 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><part><chapter><para> #: freeculture.xml:12476 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><part><chapter><para> #: freeculture.xml:12491 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><part><chapter><para> #: freeculture.xml:12498 msgid "" "Justice O'Connor stopped me within one minute of my opening. The history " "was bothering her." msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:12503 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><part><chapter><para> #: freeculture.xml:12510 msgid "" "She was quite willing to concede <quote>that this flies directly in the face " "of what the framers had in mind.</quote> But my response again and again was " "to emphasize limits on Congress's power." msgstr "" #. PAGE BREAK 246 #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:12516 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><part><chapter><para> #: freeculture.xml:12524 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><part><chapter><blockquote><para> #: freeculture.xml:12530 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><part><chapter><para> #: freeculture.xml:12538 msgid "" "Here follows my clear mistake. Like a professor correcting a student, I " "answered," msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:12544 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><part><chapter><para> #: freeculture.xml:12553 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><part><chapter><para> #: freeculture.xml:12561 msgid "" "The second came from the Chief, for whom the whole case had been " "crafted. For the Chief Justice had crafted the <citetitle>Lopez</citetitle> " "ruling, and we hoped that he would see this case as its second cousin." msgstr "" #. PAGE BREAK 247 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12566 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><part><chapter><blockquote><para> #: freeculture.xml:12573 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><part><chapter><blockquote><para> #: freeculture.xml:12577 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><part><chapter><indexterm><primary> #: freeculture.xml:12585 msgid "Olson, Theodore B." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12587 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><part><chapter><blockquote><para> #: freeculture.xml:12593 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><part><chapter><para> #: freeculture.xml:12601 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><part><chapter><para> #: freeculture.xml:12614 msgid "" "<emphasis role='strong'>As I left</emphasis> 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><part><chapter><para> #: freeculture.xml:12623 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><part><chapter><para> #: freeculture.xml:12638 msgid "" "<emphasis role='strong'>The morning</emphasis> 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><part><chapter><para> #: freeculture.xml:12646 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><part><chapter><para> #: freeculture.xml:12651 msgid "" "My <emphasis>reasoning</emphasis>. Here was a case that pitted all the money " "in the world against <emphasis>reasoning</emphasis>. And here was the last " "naïve law professor, scouring the pages, looking for reasoning." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12658 msgid "" "I first scoured the opinion, looking for how the Court would distinguish the " "principle in this case from the principle in " "<citetitle>Lopez</citetitle>. 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><part><chapter><para> #: freeculture.xml:12668 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><part><chapter><para> #: freeculture.xml:12673 msgid "" "Her opinion was perfectly reasonable—for her, and for Justice " "Souter. Neither believes in <citetitle>Lopez</citetitle>. 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><part><chapter><para> #: freeculture.xml:12679 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 <emphasis>by not addressing the argument</emphasis>. There was no " "inconsistency because they would not talk about the two together. There was " "therefore no principle that followed from the <citetitle>Lopez</citetitle> " "case: In that context, Congress's power would be limited, but in this " "context it would not." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12691 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><part><chapter><para> #: freeculture.xml:12703 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><part><chapter><para> #: freeculture.xml:12716 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 <quote>limited,</quote> and the existing " "term was so long as to be effectively unlimited, then it was " "unconstitutional." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12728 msgid "" "These two justices understood all the arguments we had made. But because " "neither believed in the <citetitle>Lopez</citetitle> 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 <citetitle>Hamlet</citetitle> without the " "Prince." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12735 msgid "" "<emphasis role='strong'>Defeat brings depression</emphasis>. 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><part><chapter><indexterm><primary> #: freeculture.xml:12740 msgid "originalism" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12742 msgid "" "It was first anger with the five <quote>Conservatives.</quote> It would have " "been one thing for them to have explained why the principle of " "<citetitle>Lopez</citetitle> 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 " "<quote>originalism</quote>—to first understand the framers' text, " "interpreted in their context, in light of the structure of the " "Constitution. That method had produced <citetitle>Lopez</citetitle> and many " "other <quote>originalist</quote> rulings. Where was their " "<quote>originalism</quote> now?" msgstr "" #. PAGE BREAK 251 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12756 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><part><chapter><para> #: freeculture.xml:12771 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><part><chapter><para> #: freeculture.xml:12778 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><part><chapter><para> #: freeculture.xml:12789 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><part><chapter><para> #: freeculture.xml:12810 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?" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12815 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><part><chapter><para> #: freeculture.xml:12821 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><part><chapter><para> #: freeculture.xml:12829 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. <quote>The Court is not ready,</quote> Peter Jaszi said; this " "issue should not be raised until it is." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12836 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." msgstr "" #. PAGE BREAK 253 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12845 msgid "" "<emphasis role='strong'>While the reaction</emphasis> 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. <citetitle>The " "New York Times</citetitle> wrote in its editorial," msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:12860 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><part><chapter><figure><indexterm><primary> #: freeculture.xml:12875 freeculture.xml:12880 msgid "Bolling, Ruben" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12869 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 in figure <xref " "xrefstyle=\"template:%n\" linkend=\"fig-18\"/>. The <quote>powerful and " "wealthy</quote> 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><part><chapter><figure> #: freeculture.xml:12879 msgid "" "<graphic fileref=\"images/tom-the-dancing-bug.png\" align=\"center\" " "width=\"100%\"></graphic> <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12883 msgid "" "The image that will always stick in my head is that evoked by the quote from " "<citetitle>The New York Times</citetitle>. That <quote>grand " "experiment</quote> we call the <quote>public domain</quote> is over? When I " "can make light of it, I think, <quote>Honey, I shrunk the " "Constitution.</quote> 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><part><chapter><title> #: freeculture.xml:12894 msgid "Chapter Fourteen: Eldred II" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12896 msgid "" "<emphasis role='strong'>The day</emphasis> <citetitle>Eldred</citetitle> was " "decided, fate would have it that I was to travel to Washington, D.C. (The " "day the rehearing petition in <citetitle>Eldred</citetitle> 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><part><chapter><para> #: freeculture.xml:12908 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: " "<quote>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.</quote> 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><part><chapter><para> #: freeculture.xml:12918 msgid "" "<citetitle>The New York Times</citetitle> 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><part><chapter><para> #: freeculture.xml:12926 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><part><chapter><para> #: freeculture.xml:12931 msgid "" "Or another two names. For depending upon your perspective, this is either " "the <quote>Public Domain Enhancement Act</quote> or the <quote>Copyright " "Term Deregulation Act.</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:12939 freeculture.xml:13142 msgid "Forbes, Steve" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12940 msgid "Democratic Party" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12941 msgid "Republican Party" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12943 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><part><chapter><para> #: freeculture.xml:12955 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><part><chapter><indexterm><primary> #: freeculture.xml:12965 msgid "Berlin Act (1908)" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12966 freeculture.xml:13007 msgid "Berne Convention (1908)" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:12974 msgid "German copyright law" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:12974 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> 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 <quote>the " "enjoyment and the exercise</quote> of rights guaranteed by the Convention " "<quote>shall not be subject to any formality.</quote> 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, <citetitle>International Intellectual Property Law, " "Cases and Materials</citetitle> (New York: Foundation Press, 2001), " "153–54." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12969 msgid "" "As I described in chapter <xref xrefstyle=\"select: labelnumber\" " "linkend=\"property-i\"/>, 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 <quote>natural right.</quote> " "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><part><chapter><para> #: freeculture.xml:13001 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 <quote>Walt " "Disney creativity</quote> is destroyed when there is no simple way to know " "what's protected and what's not." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13009 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 " "<citetitle>i</citetitle> or cross a <citetitle>t</citetitle> resulted in the " "loss of widows' only income." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13019 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><part><chapter><para> #: freeculture.xml:13027 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><part><chapter><para> #: freeculture.xml:13035 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 <quote>naturally,</quote> 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><part><chapter><para> #: freeculture.xml:13047 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><part><chapter><para> #: freeculture.xml:13056 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><part><chapter><para> #: freeculture.xml:13072 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, <emphasis>lawyer</emphasis> transactions " "take their place. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13087 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 " "<quote>get.</quote> 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, <quote>short,</quote> 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><part><chapter><para> #: freeculture.xml:13097 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 <emphasis>because there are no " "formalities</emphasis>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13106 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><part><chapter><para> #: freeculture.xml:13113 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><part><chapter><para> #: freeculture.xml:13120 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><part><chapter><para> #: freeculture.xml:13126 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 <emphasis>governments</emphasis> 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><part><chapter><para> #: freeculture.xml:13144 msgid "" "<emphasis role='strong'>When Steve Forbes</emphasis> 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><part><chapter><indexterm><primary> #: freeculture.xml:13150 msgid "Lofgren, Zoe" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13152 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, <quote>we are close.</quote> There was a general " "reaction in the blog community that something good might happen here." msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:13160 msgid "Eldred Act opposed by" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13162 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><part><chapter><para> #: freeculture.xml:13170 msgid "" "The MPAA argued first that Congress had <quote>firmly rejected the central " "concept in the proposed bill</quote>—that copyrights be renewed. That " "was true, but irrelevant, as Congress's <quote>firm rejection</quote> 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 <quote>enormous</quote> 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><part><chapter><para> #: freeculture.xml:13191 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><part><chapter><para> #: freeculture.xml:13199 msgid "" "<emphasis role='strong'>At the beginning</emphasis> 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><part><chapter><para> #: freeculture.xml:13209 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><part><chapter><para> #: freeculture.xml:13218 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><part><chapter><indexterm><primary> #: freeculture.xml:13228 msgid "Kelly, Kevin" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13230 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 <quote>Dark Content</quote> 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><part><chapter><para> #: freeculture.xml:13240 msgid "What does this industry really want?" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13243 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 " "<emphasis>their</emphasis> 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 " "<emphasis>their</emphasis> permission first." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13254 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 <quote>property</quote> but the rejection of a tradition. " "Their aim is not simply to protect what is theirs. <emphasis>Their aim is to " "assure that all there is is what is theirs</emphasis>." msgstr "" #. PAGE BREAK 263 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13262 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><part><chapter><para> #: freeculture.xml:13274 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><part><chapter><para> #: freeculture.xml:13281 msgid "" "All this seems to follow easily from this untroubled acceptance of the " "<quote>property</quote> 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 <quote>permission " "society.</quote> 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:13293 msgid "Conclusion" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13294 msgid "Africa, medications for HIV patients in" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13295 msgid "AIDS medications" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13296 msgid "antiretroviral drugs" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13297 msgid "developing countries, foreign patent costs in" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13298 freeculture.xml:13812 msgid "drugs" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:13298 freeculture.xml:13812 msgid "pharmaceutical" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13299 msgid "HIV/AIDS therapies" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13301 msgid "" "<emphasis role='strong'>There are more</emphasis> 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:13308 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:13323 msgid "" "Commission on Intellectual Property Rights, <quote>Final Report: Integrating " "Intellectual Property Rights and Development Policy</quote> (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:13316 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 "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:13332 freeculture.xml:13814 msgid "on pharmaceuticals" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13333 msgid "pharmaceutical patents" msgstr "" #. PAGE BREAK 265 #. type: Content of: <book><chapter><para> #: freeculture.xml:13336 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:13344 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:13355 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:13361 msgid "international law" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13362 msgid "parallel importation" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13363 msgid "South Africa, Republic of, pharmaceutical imports by" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13376 freeculture.xml:13870 msgid "Braithwaite, John" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:13374 msgid "" "See Peter Drahos with John Braithwaite, <citetitle>Information Feudalism: " "Who Owns the Knowledge Economy?</citetitle> (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:13365 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 <quote>parallel importation,</quote> and it is generally permitted " "under international trade law and is specifically permitted within the " "European Union.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13380 msgid "United States Trade Representative (USTR)" msgstr "" #. f3. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:13388 msgid "" "International Intellectual Property Institute (IIPI), <citetitle>Patent " "Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a " "Report Prepared for the World Intellectual Property Organization</citetitle> " "(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:13415 msgid "" "International Intellectual Property Institute (IIPI), <citetitle>Patent " "Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a " "Report Prepared for the World Intellectual Property Organization</citetitle> " "(Washington, D.C., 2000), 15." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13382 msgid "" "However, the United States government opposed the bill. Indeed, more than " "opposed. As the International Intellectual Property Association " "characterized it, <quote>The U.S. government pressured South Africa … " "not to permit compulsory licensing or parallel imports.</quote><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:13422 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:13432 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:13440 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:13455 msgid "" "See Sabin Russell, <quote>New Crusade to Lower AIDS Drug Costs: Africa's " "Needs at Odds with Firms' Profit Motive,</quote> <citetitle>San Francisco " "Chronicle</citetitle>, 24 May 1999, A1, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #57</ulink> (<quote>compulsory " "licenses and gray markets pose a threat to the entire system of intellectual " "property protection</quote>); Robert Weissman, <quote>AIDS and Developing " "Countries: Democratizing Access to Essential Medicines,</quote> " "<citetitle>Foreign Policy in Focus</citetitle> 4:23 (August 1999), available " "at <ulink url=\"http://free-culture.cc/notes/\">link #58</ulink> (describing " "U.S. policy); John A. Harrelson, <quote>TRIPS, Pharmaceutical Patents, and " "the HIV/AIDS Crisis: Finding the Proper Balance Between Intellectual " "Property Rights and Compassion, a Synopsis,</quote> <citetitle>Widener Law " "Symposium Journal</citetitle> (Spring 2001): 175." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13449 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 <quote>intellectual property</quote> would be violated that these " "drugs should not flow into Africa. It was a principle about the importance " "of <quote>intellectual property</quote> that led these government actors to " "intervene against the South African response to AIDS." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13477 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 <quote>sanctity</quote> 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><indexterm><secondary> #: freeculture.xml:13486 msgid "in pharmaceutical industry" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13488 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:13496 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 "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:13503 msgid "of drug patents" msgstr "" #. PAGE BREAK 268 #. type: Content of: <book><chapter><para> #: freeculture.xml:13505 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, <quote>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?</quote> Because there is no <quote>sound bite</quote> " "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 <quote>intellectual " "property.</quote>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13527 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:13533 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 "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13548 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." msgstr "" #. PAGE BREAK 269 #. type: Content of: <book><chapter><para> #: freeculture.xml:13557 msgid "" "<emphasis role='strong'>A simple idea</emphasis> 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:13571 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 <quote>piracy,</quote> " "and devastate a culture for creativity. They defend the idea of " "<quote>creative property,</quote> 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 <quote>perfect " "storm</quote> for free culture." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:13584 freeculture.xml:14360 msgid "academic journals" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13585 freeculture.xml:13598 msgid "biomedical research" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:13586 freeculture.xml:13756 msgid "international organization on issues of" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:13588 freeculture.xml:13705 freeculture.xml:14279 msgid "IBM" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:13589 freeculture.xml:14426 msgid "PLoS (Public Library of Science)" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:13590 freeculture.xml:14427 msgid "Public Library of Science (PLoS)" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:13591 msgid "public projects in" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13592 msgid "single nucleotied polymorphisms (SNPs)" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13593 msgid "Wellcome Trust" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13594 freeculture.xml:13757 msgid "World Intellectual Property Organization (WIPO)" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13595 msgid "World Wide Web" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13596 msgid "Global Positioning System" msgstr "" #. f6. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:13603 msgid "" "Jonathan Krim, <quote>The Quiet War over Open-Source,</quote> " "<citetitle>Washington Post</citetitle>, August 2003, E1, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #59</ulink>; William New, " "<quote>Global Group's Shift on <quote>Open Source</quote> Meeting Spurs " "Stir,</quote> <citetitle>National Journal's Technology Daily</citetitle>, 19 " "August 2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#60</ulink>; William New, <quote>U.S. Official Opposes <quote>Open " "Source</quote> Talks at WIPO,</quote> <citetitle>National Journal's " "Technology Daily</citetitle>, 19 August 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #61</ulink>." msgstr "" #. PAGE BREAK 270 #. type: Content of: <book><chapter><para> #: freeculture.xml:13600 msgid "" "<emphasis role='strong'>In August 2003</emphasis>, 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 <quote>open and collaborative projects to create public " "goods.</quote> 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 chapter " "<xref xrefstyle=\"select: labelnumber\" linkend=\"c-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 <quote>open source and free software.</quote>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13636 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 "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:13642 msgid "in international debate on intellectual property" msgstr "" #. f7. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:13645 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:13644 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 "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13654 freeculture.xml:13811 msgid "World Summit on the Information Society (WSIS)" msgstr "" #. PAGE BREAK 271 #. type: Content of: <book><chapter><para> #: freeculture.xml:13656 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 <quote>Information Society</quote> 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:13680 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 <quote>open and collaborative projects to create public " "goods</quote> seemed perfectly appropriate within the WIPO agenda." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:13689 freeculture.xml:15431 msgid "Apple Corporation" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:13690 msgid "on free software" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13692 msgid "" "But there is one project within that list that is highly controversial, at " "least among lobbyists. That project is <quote>open source and free " "software.</quote> 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 " "<quote>proprietary software,</quote> for their own internal uses." msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13702 msgid "<quote>copyleft</quote> licenses" msgstr "" #. f8. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:13718 msgid "" "Microsoft's position about free and open source software is more " "sophisticated. As it has repeatedly asserted, it has no problem with " "<quote>open source</quote> software or software in the public " "domain. Microsoft's principal opposition is to <quote>free software</quote> " "licensed under a <quote>copyleft</quote> license, meaning a license that " "requires the licensee to adopt the same terms on any derivative work. See " "Bradford L. Smith, <quote>The Future of Software: Enabling the Marketplace " "to Decide,</quote> <citetitle>Government Policy Toward Open Source " "Software</citetitle> (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, <citetitle>The Commercial Software " "Model</citetitle>, 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:13707 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 <quote>free software</quote>—and IBM is emphatically a " "commercial entity. Thus, to support <quote>open source and free " "software</quote> 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 "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13736 msgid "General Public License (GPL)" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13737 msgid "GPL (General Public License)" msgstr "" #. PAGE BREAK 272 #. type: Content of: <book><chapter><para> #: freeculture.xml:13739 msgid "" "More important for our purposes, to support <quote>open source and free " "software</quote> is not to oppose copyright. <quote>Open source and free " "software</quote> 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 "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13758 msgid "Krim, Jonathan" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:13759 msgid "WIPO meeting opposed by" msgstr "" #. f9. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:13769 msgid "" "Krim, <quote>The Quiet War over Open-Source,</quote> available at <ulink " "url=\"http://free-culture.cc/notes/\">link #64</ulink>." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13761 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 <citetitle>Washington Post</citetitle>, 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:13775 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><indexterm><primary> #: freeculture.xml:13783 freeculture.xml:13842 msgid "Boland, Lois" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13784 msgid "Patent and Trademark Office, U.S." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13786 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 <quote>open-source software runs counter to the mission of WIPO, which " "is to promote intellectual-property rights.</quote> She is quoted as saying, " "<quote>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.</quote>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13797 msgid "These statements are astonishing on a number of levels." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13802 msgid "" "First, they are just flat wrong. As I described, most open source and free " "software relies fundamentally upon the intellectual property right called " "<quote>copyright</quote>. Without it, restrictions imposed by those " "licenses wouldn't work. Thus, to say it <quote>runs counter</quote> 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><indexterm><primary> #: freeculture.xml:13813 msgid "generic drugs" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13816 msgid "" "Second, who ever said that WIPO's exclusive aim was to " "<quote>promote</quote> 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:13830 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 <emphasis>their</emphasis> rights. If " "they want to <quote>waive</quote> or <quote>disclaim</quote> 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 <emphasis>their</emphasis> property." msgstr "" #. PAGE BREAK 274 #. type: Content of: <book><chapter><para> #: freeculture.xml:13844 msgid "" "When Ms. Boland says that there is something wrong with a meeting " "<quote>which has as its purpose to disclaim or waive such rights,</quote> " "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 <quote>waiving</quote> or " "<quote>disclaiming</quote> 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><indexterm><primary> #: freeculture.xml:13855 msgid "feudal system" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:13856 msgid "feudal system of" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13858 msgid "" "There is a history of just such a property system that is well known in the " "Anglo-American tradition. It is called <quote>feudalism.</quote> 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:13875 msgid "" "See Drahos with Braithwaite, <citetitle>Information Feudalism</citetitle>, " "210–20. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13872 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 " "<emphasis>free</emphasis> or <emphasis>feudal</emphasis>. The trend is " "toward the feudal." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13886 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:13895 msgid "" "George, you misunderstand Lessig: He's only talking about the world as it " "should be (<quote>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</quote>), 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:13907 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:13918 msgid "" "Obviously, however, the poster was not supporting that idea. Instead, the " "poster was ridiculing the very idea that in the real world, the " "<quote>goal</quote> of a government should be <quote>to promote the right " "balance</quote> of intellectual property. That was obviously silly to " "him. And it obviously betrayed, he believed, my own silly " "utopianism. <quote>Typical for an academic,</quote> the poster might well " "have continued." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13926 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:13932 msgid "" "But when it has become silly to suppose that the role of our government " "should be to <quote>seek balance,</quote> 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:13943 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> #: freeculture.xml:13952 msgid "If this is crazy, then let there be more crazies. Soon." msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13956 msgid "Turner, Ted" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13958 msgid "" "<emphasis role='strong'>There are moments</emphasis> 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." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13969 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:13977 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:13984 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:13994 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 <quote>big,</quote> wisely or not. That we could be " "motivated to fight <quote>big</quote> again is not something new." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:14001 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 " "<quote>intellectual property.</quote> 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 " "<quote>property</quote> is not well exercised within this tradition anymore." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:14009 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:14012 msgid "Dylan, Bob" msgstr "" #. f11. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:14018 msgid "" "John Borland, <quote>RIAA Sues 261 File Swappers,</quote> CNET News.com, " "September 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #65</ulink>; Paul R. La Monica, " "<quote>Music Industry Sues Swappers,</quote> 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, <quote>Sued for a Song, " "N.Y.C. 12-Yr-Old Among 261 Cited as Sharers,</quote> <citetitle>New York " "Daily News</citetitle>, 9 September 2003, 3; Frank Ahrens, <quote>RIAA's " "Lawsuits Meet Surprised Targets; Single Mother in Calif., 12-Year-Old Girl " "in N.Y. Among Defendants,</quote> <citetitle>Washington Post</citetitle>, 10 " "September 2003, E1; Katie Dean, <quote>Schoolgirl Settles with RIAA,</quote> " "<citetitle>Wired News</citetitle>, 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:14036 msgid "" "Jon Wiederhorn, <quote>Eminem Gets Sued … by a Little Old " "Lady,</quote> 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:14043 msgid "" "Kenji Hall, Associated Press, <quote>Japanese Book May Be Inspiration for " "Dylan Songs,</quote> 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:14014 msgid "" "<emphasis role='strong'>As I write</emphasis> 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 <quote>sampling</quote> someone else's music.<placeholder " "type=\"footnote\" id=\"1\"/> The story about Bob Dylan " "<quote>stealing</quote> 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 <quote>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.</quote> " "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><indexterm><primary> #: freeculture.xml:14060 msgid "BBC" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:14061 msgid "Brazil, free culture in" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:14062 freeculture.xml:14457 msgid "Creative Commons" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:14063 msgid "Gil, Gilberto" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:14064 msgid "public creative archive in" msgstr "" #. f14. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:14069 msgid "" "<quote>BBC Plans to Open Up Its Archive to the Public,</quote> 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:14078 msgid "" "<quote>Creative Commons and Brazil,</quote> 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:14066 msgid "" "Yet on the other side of the Atlantic, the BBC has just announced that it " "will build a <quote>Creative Archive,</quote> 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:14092 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:14100 msgid "Afterword" msgstr "" #. type: Content of: <book><chapter><section><indexterm><secondary> #: freeculture.xml:14101 freeculture.xml:14135 msgid "voluntary reform efforts on" msgstr "" #. PAGE BREAK 280 #. type: Content of: <book><chapter><para> #: freeculture.xml:14105 msgid "" "<emphasis role='strong'>At least some</emphasis> 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:14110 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:14116 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:14125 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><section><title> #: freeculture.xml:14134 msgid "Us, now" msgstr "" #. type: Content of: <book><chapter><section><para> #: freeculture.xml:14137 msgid "" "<emphasis role='strong'>Common sense</emphasis> 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><section><para> #: freeculture.xml:14144 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—<quote>All Rights Reserved</quote>— " "and those who reject copyright—<quote>No Rights Reserved.</quote> The " "<quote>All Rights Reserved</quote> sorts believe that you should ask " "permission before you <quote>use</quote> a copyrighted work in any way. The " "<quote>No Rights Reserved</quote> sorts believe you should be able to do " "with content as you wish, regardless of whether you have permission or not." msgstr "" #. type: Content of: <book><chapter><section><indexterm><secondary> #: freeculture.xml:14154 msgid "initial free character of" msgstr "" #. PAGE BREAK 282 #. type: Content of: <book><chapter><section><para> #: freeculture.xml:14156 msgid "" "When the Internet was first born, its initial architecture effectively " "tilted in the <quote>no rights reserved</quote> 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 <quote>no rights reserved.</quote> " "Content was <quote>taken</quote> regardless of the rights. Any rights were " "effectively unprotected." msgstr "" #. type: Content of: <book><chapter><section><para> #: freeculture.xml:14168 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 <quote>no rights reserved,</quote> the future architecture will make " "the effective default <quote>all rights reserved.</quote> The architecture " "and law that surround the Internet's design will increasingly produce an " "environment where all use of content requires permission. The <quote>cut " "and paste</quote> world that defines the Internet today will become a " "<quote>get permission to cut and paste</quote> world that is a creator's " "nightmare." msgstr "" #. type: Content of: <book><chapter><section><para> #: freeculture.xml:14184 msgid "" "What's needed is a way to say something in the middle—neither " "<quote>all rights reserved</quote> nor <quote>no rights reserved</quote> but " "<quote>some rights reserved</quote>— 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><section><section><title> #: freeculture.xml:14192 msgid "Rebuilding Freedoms Previously Presumed: Examples" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:14193 msgid "restoration efforts on previous aspects of" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:14195 msgid "privacy rights" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14197 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 " "<quote>privacy</quote> of your browsing habits was assured." msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14207 msgid "What made it assured?" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14211 msgid "" "Well, if we think in terms of the modalities I described in chapter <xref " "xrefstyle=\"select: labelnumber\" linkend=\"property-i\"/>, 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 <quote>privacy</quote> 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><section><section><indexterm><primary> #: freeculture.xml:14226 msgid "Amazon" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:14227 msgid "cookies, Internet" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:14228 msgid "privacy protection on" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14230 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 <quote>recently " "viewed</quote> 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 <quote>privacy</quote> " "protected by the friction disappears, too." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:14239 msgid "privacy rights in use of" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14241 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 <quote>right</quote> 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><section><section><para><footnote><para> #: freeculture.xml:14259 msgid "" "See, for example, Marc Rotenberg, <quote>Fair Information Practices and the " "Architecture of Privacy (What Larry Doesn't Get),</quote> " "<citetitle>Stanford Technology Law Review</citetitle> 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, " "<citetitle>The Naked Crowd: Reclaiming Security and Freedom in an Anxious " "Age</citetitle> (New York: Random House, 2004) (mapping tradeoffs between " "technology and privacy)." msgstr "" #. PAGE BREAK 284 #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14253 msgid "" "It is this reality that explains the push of many to define " "<quote>privacy</quote> 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><section><section><indexterm><primary> #: freeculture.xml:14278 msgid "Data General" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14282 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><section><section><indexterm><primary> #: freeculture.xml:14289 msgid "Stallman, Richard" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14291 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><section><section><para> #: freeculture.xml:14299 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><section><section><indexterm><primary> #: freeculture.xml:14310 msgid "proprietary code" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14312 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><section><section><para> #: freeculture.xml:14321 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><section><section><indexterm><primary> #: freeculture.xml:14330 msgid "Torvalds, Linus" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14332 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 " "<quote>Linux</quote> kernel was added to produce the GNU/Linux operating " "system. <placeholder type=\"indexterm\" id=\"0\"/> <placeholder " "type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14340 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><section><section><para> #: freeculture.xml:14351 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><section><section><indexterm><primary> #: freeculture.xml:14361 msgid "scientific journals" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14363 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 "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:14367 msgid "Lexis and Westlaw" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:14369 freeculture.xml:14405 msgid "journals in" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:14370 msgid "access to opinions of" msgstr "" #. PAGE BREAK 286 #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14372 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><section><section><indexterm><secondary> #: freeculture.xml:14387 msgid "access fees for material in" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:14388 msgid "license system for rebuilding of" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14390 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><section><section><para> #: freeculture.xml:14401 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><section><section><para> #: freeculture.xml:14407 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><section><section><para> #: freeculture.xml:14419 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 "" #. PAGE BREAK 287 #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14429 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." msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14443 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><section><section><title> #: freeculture.xml:14456 msgid "Rebuilding Free Culture: One Idea" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14459 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><section><section><indexterm><primary> #: freeculture.xml:14462 msgid "Stanford University" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14464 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 <emphasis>reasonable</emphasis> 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><section><section><para> #: freeculture.xml:14475 msgid "" "<emphasis>Simple</emphasis>—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 <quote>All</quote> or <quote>No</quote> 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><section><section><para> #: freeculture.xml:14493 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 (<quote>share and share alike</quote>). 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><section><section><para> #: freeculture.xml:14504 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><section><section><indexterm><primary> #: freeculture.xml:14514 msgid "Garlick, Mia" msgstr "" #. PAGE BREAK 289 #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14516 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 (<quote>content " "conducers,</quote> 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." msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14529 msgid "" "The aim is not to fight the <quote>All Rights Reserved</quote> 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><section><section><para> #: freeculture.xml:14542 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, <citetitle>Down and Out in the Magic " "Kingdom</citetitle>, 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><section><section><para> #: freeculture.xml:14549 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 <emphasis>increase</emphasis> sales of Cory's book." msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14561 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 "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:14566 msgid "Free for All (Wayner)" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:14567 msgid "Wayner, Peter" msgstr "" #. PAGE BREAK 290 #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14569 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 <citetitle>Free for " "All</citetitle>, 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 "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:14580 msgid "Leaphart, Walter" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:14581 msgid "Public Enemy" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:14583 msgid "rap music" msgstr "" #. f2. #. type: Content of: <book><chapter><section><section><para><footnote><para> #: freeculture.xml:14600 msgid "" "<citetitle>Willful Infringement: A Report from the Front Lines of the Real " "Culture Wars</citetitle> (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><section><section><para> #: freeculture.xml:14585 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 <quote>sampling license</quote> 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 <emphasis>legal</emphasis> 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 " "<quote>allow</quote> 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><section><section><para> #: freeculture.xml:14609 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 <quote>All Rights Reserved</quote> " "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 <quote>Some Rights " "Reserved,</quote> and gives many the chance to say it to others." msgstr "" #. PAGE BREAK 291 #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14621 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><section><section><para> #: freeculture.xml:14631 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><section><section><para> #: freeculture.xml:14639 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><section><title> #: freeculture.xml:14653 msgid "Them, soon" msgstr "" #. type: Content of: <book><chapter><section><para> #: freeculture.xml:14655 msgid "" "<emphasis role='strong'>We will</emphasis> 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><section><para> #: freeculture.xml:14662 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><section><section><title> #: freeculture.xml:14669 msgid "1. More Formalities" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14671 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><section><section><para> #: freeculture.xml:14678 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><section><section><para> #: freeculture.xml:14683 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 <quote>formalities</quote> are banished." msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14689 msgid "Why?" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14692 msgid "" "As I suggested in chapter <xref xrefstyle=\"select: labelnumber\" " "linkend=\"property-i\"/>, 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><section><section><para> #: freeculture.xml:14701 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 <emphasis>lack</emphasis> " "of formalities forces many into silence where they otherwise could speak." msgstr "" #. f1. #. type: Content of: <book><chapter><section><section><para><footnote><para> #: freeculture.xml:14715 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><section><section><para> #: freeculture.xml:14713 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><section><section><para> #: freeculture.xml:14723 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><section><section><section><title> #: freeculture.xml:14735 msgid "Registration and renewal" msgstr "" #. type: Content of: <book><chapter><section><section><section><para> #: freeculture.xml:14737 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><section><section><section><para> #: freeculture.xml:14750 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><section><section><section><indexterm><primary> #: freeculture.xml:14758 msgid "domain names" msgstr "" #. type: Content of: <book><chapter><section><section><section><indexterm><secondary> #: freeculture.xml:14759 msgid "domain name registration on" msgstr "" #. type: Content of: <book><chapter><section><section><section><indexterm><primary> #: freeculture.xml:14760 msgid "Web sites, domain name registration of" msgstr "" #. type: Content of: <book><chapter><section><section><section><para> #: freeculture.xml:14762 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><section><section><section><para> #: freeculture.xml:14772 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><section><section><section><title> #: freeculture.xml:14787 msgid "Marking" msgstr "" #. type: Content of: <book><chapter><section><section><section><para> #: freeculture.xml:14789 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><section><section><section><para> #: freeculture.xml:14799 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><section><section><section><para> #: freeculture.xml:14805 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><section><section><section><para><footnote><para> #: freeculture.xml:14822 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><section><section><section><para> #: freeculture.xml:14815 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 <quote>use unless someone " "complains.</quote> 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><section><section><section><para> #: freeculture.xml:14835 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><section><section><section><indexterm><secondary> #: freeculture.xml:14841 msgid "copyright marking of" msgstr "" #. type: Content of: <book><chapter><section><section><section><para> #: freeculture.xml:14843 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 <emphasis>solely</emphasis> 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><section><section><section><para> #: freeculture.xml:14855 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><section><section><section><para> #: freeculture.xml:14863 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><section><section><section><para> #: freeculture.xml:14868 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><section><section><title> #: freeculture.xml:14880 msgid "2. Shorter Terms" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14882 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><section><section><para><footnote><para> #: freeculture.xml:14895 msgid "" "<quote>A Radical Rethink,</quote> <citetitle>Economist</citetitle>, 366:8308 " "(25 January 2003): 15, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #74</ulink>." msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14887 msgid "" "In <citetitle>The Future of Ideas</citetitle>, 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 <citetitle>Eldred</citetitle> " "v. <citetitle>Ashcroft</citetitle>, the proposals became even more " "radical. <citetitle>The Economist</citetitle> 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><section><section><para> #: freeculture.xml:14902 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><section><section><orderedlist><listitem><para> #: freeculture.xml:14910 msgid "" "<emphasis>Keep it short:</emphasis> 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><section><section><orderedlist><listitem><para> #: freeculture.xml:14919 msgid "" "<emphasis>Keep it simple:</emphasis> The line between the public domain and " "protected content must be kept clear. Lawyers like the fuzziness of " "<quote>fair use,</quote> and the distinction between <quote>ideas</quote> " "and <quote>expression.</quote> 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 " "<quote>lawyer-free zone</quote> makes the complexities of <quote>fair " "use</quote> and <quote>idea/expression</quote> less necessary to navigate." msgstr "" #. type: Content of: <book><chapter><section><section><orderedlist><listitem><indexterm><primary> #: freeculture.xml:14931 msgid "veterans' pensions" msgstr "" #. f4. #. type: Content of: <book><chapter><section><section><orderedlist><listitem><para><footnote><para> #: freeculture.xml:14942 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><section><section><orderedlist><listitem><para> #: freeculture.xml:14934 msgid "" "<emphasis>Keep it alive:</emphasis> 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." msgstr "" #. (4) #. type: Content of: <book><chapter><section><section><orderedlist><listitem><para> #: freeculture.xml:14953 msgid "" "<emphasis>Keep it prospective:</emphasis> 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><section><section><para> #: freeculture.xml:14969 msgid "" "These changes together should produce an <emphasis>average</emphasis> " "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><section><section><para> #: freeculture.xml:14975 msgid "" "No doubt the extremists will call these ideas <quote>radical.</quote> (After " "all, I call them <quote>extremists.</quote>) But again, the term I " "recommended was longer than the term under Richard Nixon. How " "<quote>radical</quote> can it be to ask for a more generous copyright law " "than Richard Nixon presided over?" msgstr "" #. type: Content of: <book><chapter><section><section><title> #: freeculture.xml:14985 msgid "3. Free Use Vs. Fair Use" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14989 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><section><section><para> #: freeculture.xml:14997 msgid "" "Our Constitution gives Congress the power to give authors <quote>exclusive " "right</quote> to <quote>their writings.</quote> Congress has given authors " "an exclusive right to <quote>their writings</quote> 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 <quote>my writing.</quote>" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:15005 msgid "Kaplan, Benjamin" msgstr "" #. f5. #. type: Content of: <book><chapter><section><section><para><footnote><para> #: freeculture.xml:15011 msgid "" "Benjamin Kaplan, <citetitle>An Unhurried View of Copyright</citetitle> (New " "York: Columbia University Press, 1967), 32." msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15007 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><section><section><blockquote><para><footnote><para> #: freeculture.xml:15024 msgid "Ibid., 56." msgstr "" #. type: Content of: <book><chapter><section><section><blockquote><para> #: freeculture.xml:15020 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><section><section><para> #: freeculture.xml:15029 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><section><section><para> #: freeculture.xml:15036 msgid "" "<emphasis>Term:</emphasis> 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><section><section><para> #: freeculture.xml:15049 msgid "" "<emphasis>Scope:</emphasis> 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 " "<quote>reuse</quote> 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><section><section><para> #: freeculture.xml:15063 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><section><section><para><footnote><para><indexterm><primary> #: freeculture.xml:15079 msgid "Goldstein, Paul" msgstr "" #. type: Content of: <book><chapter><section><section><para><footnote><para> #: freeculture.xml:15077 msgid "" "Paul Goldstein, <citetitle>Copyright's Highway: From Gutenberg to the " "Celestial Jukebox</citetitle> (Stanford: Stanford University Press, 2003), " "187–216. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15071 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><section><section><para> #: freeculture.xml:15085 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><section><section><para> #: freeculture.xml:15092 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><section><section><title> #: freeculture.xml:15102 msgid "4. Liberate the Music—Again" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15104 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><section><section><para> #: freeculture.xml:15111 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><section><section><para> #: freeculture.xml:15120 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><section><section><para> #: freeculture.xml:15127 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 <xref " "xrefstyle=\"select: labelnumber\" linkend=\"piracy\"/>, they enable four " "different kinds of sharing:" msgstr "" #. A. #. type: Content of: <book><chapter><section><section><orderedlist><listitem><para> #: freeculture.xml:15136 msgid "" "There are some who are using sharing networks as substitutes for purchasing " "CDs." msgstr "" #. B. #. type: Content of: <book><chapter><section><section><orderedlist><listitem><para> #: freeculture.xml:15141 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><section><section><orderedlist><listitem><para> #: freeculture.xml:15147 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><section><section><orderedlist><listitem><para> #: freeculture.xml:15153 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><section><section><para> #: freeculture.xml:15161 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><section><section><para> #: freeculture.xml:15169 msgid "" "As I said in chapter <xref xrefstyle=\"select: labelnumber\" " "linkend=\"piracy\"/>, 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><section><section><para> #: freeculture.xml:15177 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><section><section><para> #: freeculture.xml:15182 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><section><section><para> #: freeculture.xml:15194 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 "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:15208 msgid "cell phones, music streamed over" msgstr "" #. f8. #. type: Content of: <book><chapter><section><section><para><footnote><para> #: freeculture.xml:15228 msgid "" "See, for example, <quote>Music Media Watch,</quote> 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><section><section><para> #: freeculture.xml:15210 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 <emphasis>extremely</emphasis> easy to connect to services " "that give access to content, it will be <emphasis>easier</emphasis> to " "connect to services that give you access to content than it will be to " "download and store content <emphasis>on the many devices you will have for " "playing content</emphasis>. 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 " "<quote>free</quote> 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><section><section><para> #: freeculture.xml:15235 msgid "" "This point about the future is meant to suggest a perspective on the " "present: It is emphatically temporary. The <quote>problem</quote> 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 <quote>solving</quote> 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><section><section><para> #: freeculture.xml:15251 msgid "" "The answer begins with recognizing that there are different " "<quote>problems</quote> here to solve. Let's start with type D " "content—uncopyrighted content or copyrighted content that the artist " "wants shared. The <quote>problem</quote> 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><section><section><para> #: freeculture.xml:15262 msgid "" "Type C content raises a different <quote>problem.</quote> 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><section><section><para> #: freeculture.xml:15273 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 " "<quote>sharing</quote> of his content without his being compensated is less " "than ideal." msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15283 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 <quote>share</quote> 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><section><section><para> #: freeculture.xml:15294 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><section><section><para> #: freeculture.xml:15304 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><section><section><para> #: freeculture.xml:15314 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><section><section><para> #: freeculture.xml:15322 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><section><section><para> #: freeculture.xml:15326 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><section><section><para> #: freeculture.xml:15337 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><section><section><para><footnote><para><indexterm><primary> #: freeculture.xml:15344 freeculture.xml:15386 msgid "Promises to Keep (Fisher)" msgstr "" #. type: Content of: <book><chapter><section><section><para><footnote><para><indexterm><primary> #: freeculture.xml:15384 msgid "Fisher, William" msgstr "" #. type: Content of: <book><chapter><section><section><para><footnote><para> #: freeculture.xml:15350 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> William Fisher, " "<citetitle>Digital Music: Problems and Possibilities</citetitle> (last " "revised: 10 October 2000), available at <ulink " "url=\"http://free-culture.cc/notes/\">link #77</ulink>; William Fisher, " "<citetitle>Promises to Keep: Technology, Law, and the Future of " "Entertainment</citetitle> (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, <quote>Impose a Noncommercial Use Levy " "to Allow Free P2P File Sharing,</quote> available at <ulink " "url=\"http://free-culture.cc/notes/\">link #79</ulink>. For other proposals, " "see Lawrence Lessig, <quote>Who's Holding Back Broadband?</quote> " "<citetitle>Washington Post</citetitle>, 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, " "<citetitle>A Quick Case for Intellectual Property Use Fee " "(IPUF)</citetitle>, 3 March 2002, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #81</ulink>; Jefferson Graham, " "<quote>Kazaa, Verizon Propose to Pay Artists Directly,</quote> " "<citetitle>USA Today</citetitle>, 13 May 2002, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #82</ulink>; Steven M. Cherry, " "<quote>Getting Copyright Right,</quote> IEEE Spectrum Online, 1 July 2002, " "available at <ulink url=\"http://free-culture.cc/notes/\">link #83</ulink>; " "Declan McCullagh, <quote>Verizon's Copyright Campaign,</quote> 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=\"1\"/> <placeholder type=\"indexterm\" " "id=\"2\"/> <placeholder type=\"indexterm\" id=\"3\"/>" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15346 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><section><section><para> #: freeculture.xml:15400 msgid "" "Fisher's proposal is careful and comprehensive. It raises a million " "questions, most of which he answers well in his upcoming book, " "<citetitle>Promises to Keep</citetitle>. 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 "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:15416 msgid "semiotic democracy" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:15417 msgid "semiotic" msgstr "" #. PAGE BREAK 307 #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15419 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 <quote>semiotic democracy</quote> 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><section><section><indexterm><primary> #: freeculture.xml:15432 msgid "MusicStore" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:15434 msgid "prices of" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15436 msgid "" "No doubt it would be difficult to calculate the proper measure of " "<quote>harm</quote> 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 " "<quote>free</quote> 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><section><section><indexterm><secondary> #: freeculture.xml:15451 msgid "cable vs. broadcast" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:15454 msgid "luxury theatres vs. video piracy in" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15456 msgid "" "This competition has already occurred against the background of " "<quote>free</quote> 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 " "<quote>competing with free.</quote> 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 " "<quote>first class</quote> seats, and meals served while you watch a " "movie—as they struggle and succeed in finding ways to compete with " "<quote>free.</quote>" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15468 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><section><section><para> #: freeculture.xml:15477 msgid "In summary, then, my proposal is this:" msgstr "" #. PAGE BREAK 308 #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15482 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><section><section><para> #: freeculture.xml:15489 msgid "We can minimize that harm while maximizing the benefit to innovation by" msgstr "" #. 1. #. type: Content of: <book><chapter><section><section><orderedlist><listitem><para> #: freeculture.xml:15495 msgid "guaranteeing the right to engage in type D sharing;" msgstr "" #. 2. #. type: Content of: <book><chapter><section><section><orderedlist><listitem><para> #: freeculture.xml:15499 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><section><section><orderedlist><listitem><para> #: freeculture.xml:15505 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><section><section><para> #: freeculture.xml:15510 msgid "" "But what if <quote>piracy</quote> doesn't disappear? What if there is a " "competitive market providing content at a low cost, but a significant number " "of consumers continue to <quote>take</quote> content for nothing? Should the " "law do something then?" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15516 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 <citetitle>x</citetitle>, or " "(b) to have a technology that is 50 percent secure but produces a market of " "five times <citetitle>x</citetitle>? 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><section><section><para> #: freeculture.xml:15530 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><section><section><title> #: freeculture.xml:15541 msgid "5. Fire Lots of Lawyers" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15543 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><section><section><para> #: freeculture.xml:15549 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 "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:15556 msgid "Nimmer, Melville" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:15557 msgid "Supreme Court challenge of" msgstr "" #. f10. #. type: Content of: <book><chapter><section><section><para><footnote><para> #: freeculture.xml:15568 msgid "" "Lawrence Lessig, <quote>Copyright's First Amendment</quote> (Melville " "B. Nimmer Memorial Lecture), <citetitle>UCLA Law Review</citetitle> 48 " "(2001): 1057, 1069–70." msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15559 msgid "" "The evidence of this bending is compelling. I'm attacked as a " "<quote>radical</quote> 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><section><section><para> #: freeculture.xml:15574 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><section><section><para><footnote><para> #: freeculture.xml:15584 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, <citetitle>Rethinking the Network " "Economy: The True Forces That Drive the Digital Marketplace</citetitle> (New " "York: Amacom, 2002), (reviewing his original view but expressing skepticism) " "with Stan J. Liebowitz, <quote>Will MP3s Annihilate the Record " "Industry?</quote> 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, <citetitle>Rethinking</citetitle>, 174–76. " "<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15579 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><section><section><para> #: freeculture.xml:15608 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><section><section><para> #: freeculture.xml:15616 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><section><section><para> #: freeculture.xml:15626 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><section><section><para> #: freeculture.xml:15634 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><section><section><para> #: freeculture.xml:15641 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><section><section><para> #: freeculture.xml:15650 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: <quote>Will it do good?</quote> When challenged about the " "expanding reach of the law, the lawyer answers, <quote>Why not?</quote>" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15659 msgid "" "We should ask, <quote>Why?</quote> 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:15668 msgid "Notes" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:15670 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 <ulink url=\"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:15690 msgid "Acknowledgments" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:15692 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:15699 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:15712 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:15723 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, <quote>Wink,</quote> Roger Wood, <quote>Ximmbo da Jazz,</quote> " "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:15743 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:15752 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 "" #. type: Attribute 'href' of: <book><xi:include> #: freeculture.xml:15761 msgid "freeculture-about-edition-en.xml" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15771 msgid "" "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:15775 msgid "Copyright © 2004 Lawrence Lessig. Some rights reserved." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15779 msgid "<ulink url=\"http://free-culture.cc/\"/>" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15783 msgid "Published in 2015. First published 2004 by The Penguin Press." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15787 msgid "" "This English and Norwegian Bokmål edition was published by Petter " "Reinholdtsen with help from many volunteers." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15792 msgid "" "Typeset with <ulink url=\"http://dblatex.sourceforge.net\">dblatex</ulink> " "using the font Crimson Text." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15798 msgid "" "Excerpt from an editorial titled <quote>The Coming of Copyright " "Perpetuity,</quote> <citetitle>The New York Times</citetitle>, January 16, " "2003. Copyright © 2003 by The New York Times Co. Reprinted with " "permission." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15804 msgid "" "Cartoon in figure <xref xrefstyle=\"template:%n\" " "linkend=\"fig-1711-vcr-handgun-cartoonfig\"/> by Paul Conrad, copyright " "Tribune Media Services, Inc. All rights reserved. Reprinted with " "permission." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15810 msgid "" "Diagram in figure <xref xrefstyle=\"template:%n\" " "linkend=\"fig-1761-pattern-modern-media-ownership\"/> courtesy of the office " "of FCC Commissioner, Michael J. Copps." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15816 msgid "Cover created by Petter Reinholdtsen using inkscape." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15820 msgid "" "The quotes on the cover came from <ulink " "url=\"http://free-culture.cc/jacket/\"/>." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15825 msgid "" "Portrait on the cover was created 2013 by ActuaLitté and licensed under a " "Creative Commons Attribution-ShareAlike 2.0 license. It was downloaded from " "<ulink " "url=\"https://commons.wikimedia.org/wiki/File%3ALawrence_Lessig_(11014343366)_(cropped).jpg\"/>." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15832 msgid "Classifications:" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15836 msgid "(Dewey) 306.4, 306.40973, 306.46, 341.7582, 343.7309/9" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15845 msgid "(UDK) 347.78" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15849 msgid "(US Library of Congress) KF2979.L47 2004" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15853 msgid "(ACM CRCS) K.4.1" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15857 msgid "" "Printing was sponsed by NUUG Foundation, <ulink " "url=\"http://www.nuugfoundation.no/\"/>." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15862 msgid "Includes index." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15869 msgid "" "The Docbook source is available from <ulink " "url=\"https://github.com/petterreinholdtsen/free-culture-lessig\"/>. Please " "report any issues with the book there." msgstr "" #. type: Attribute 'fileref' of: <book><colophon><para><informalfigure><graphic> #: freeculture.xml:15876 msgid "images/cc.svg" msgstr "" #. type: Content of: <book><colophon><para><informaltable><tgroup><thead><row><entry> #: freeculture.xml:15892 msgid "Format / MIME-type" msgstr "" #. type: Content of: <book><colophon><para><informaltable><tgroup><thead><row><entry> #: freeculture.xml:15893 msgid "ISBN" msgstr "" #. type: Content of: <book><colophon><para><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:15898 msgid "US Trade edition from lulu.com" msgstr "" #. type: Content of: <book><colophon><para><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:15899 msgid "978-82-690182-0-2" msgstr "" #. type: Content of: <book><colophon><para><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:15902 msgid "application/pdf" msgstr "" #. type: Content of: <book><colophon><para><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:15903 msgid "978-82-690182-1-9" msgstr "" #. type: Content of: <book><colophon><para><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:15906 msgid "application/epub+zip" msgstr "" #. type: Content of: <book><colophon><para><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:15907 msgid "978-82-690182-2-6" msgstr "" #. type: Content of: <chapter><para> #: cover-text.xml:19 msgid "Lawrence Lessig" msgstr "" #. type: Content of: <chapter><para> #: cover-text.xml:28 msgid "" "<quote><citetitle>Free Culture</citetitle> is an entertaining and important " "look at the past and future of the cold war between the media industry and " "new technologies.</quote> — <emphasis>Marc Andreessen, cofounder of " "Netscape</emphasis>" msgstr "" #. type: Content of: <chapter><para> #: cover-text.xml:35 msgid "" "<quote><citetitle>Free Culture</citetitle> goes beyond illuminating the " "catastrophe to our culture of increasing regulation to show examples of how " "we can make a different future. These new-style heroes and examples are " "rooted in the traditions of the founding fathers in ways that seem obvious " "after reading this book. Recommended reading to those trying to unravel the " "shrill hype around <quote>intellectual property.</quote></quote> — " "<emphasis>Brewster Kahle, founder of the Internet Archive</emphasis>" msgstr "" #. type: Content of: <chapter><para> #: cover-text.xml:46 msgid "" "<quote>America needs a national conversation about the way in which " "so-called <quote>intellectual property rights</quote> have come to dominate " "the rights of scholars, researchers, and everyday citizens. A copyright " "cartel, bidding for absolute control over digital worlds, music, and movies, " "now has a veto over technological innovation and has halted most " "contributions to the public domain from which so many have benefited. The " "patent system has spun out of control, giving enormous power to entrenched " "interests, and even trademarks are being misused. Lawrence Lessig's book is " "essential reading for anyone who want to join this conversation. He explains " "how technology and the law are robbing us of the public domain; but for all " "his educated pessimism, Professor Lessig offers some solutions, too, because " "he recognizes that technology can be the catalyst for freedom. If you care " "about the future of innovation, read this book.</quote> — " "<emphasis>Dan Gillmor, author of <citetitle>We the media</citetitle>, an " "book on the collision of media and technology</emphasis>" msgstr "" #. type: Content of: <chapter><para> #: cover-text.xml:65 msgid "Published by Petter Reinholdtsen." msgstr "" #. type: Content of: <chapter><para> #: cover-text.xml:69 msgid "Photo: ActuaLitté CC BY-SA 2.0 from Wikimedia" msgstr ""

# 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: 2015-10-18 20:47+0200\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:12 msgid "©" msgstr "" #. type: Attribute 'lang' of: #: freeculture.xml:15 msgid "en" msgstr "" #. type: Content of: #: freeculture.xml:17 cover-text.xml:14 msgid "Free Culture" msgstr "" #. type: Content of: <book><bookinfo> #: freeculture.xml:19 msgid "<abbrev>\"freeculture\"</abbrev>" msgstr "" #. type: Content of: <chapter><para> #: freeculture.xml:21 cover-text.xml:23 msgid "" "How big media uses technology and the law to lock down culture and control " "creativity" msgstr "" #. type: Content of: <book><bookinfo> #: freeculture.xml:24 msgid "<pubdate>2015-10-17</pubdate> <edition>1</edition>" msgstr "" #. type: Content of: <book><bookinfo><releaseinfo> #: freeculture.xml:28 msgid "Version 2004-02-10" msgstr "" #. type: Content of: <book><bookinfo><authorgroup><author><firstname> #: freeculture.xml:32 msgid "Lawrence" msgstr "" #. type: Content of: <book><bookinfo><authorgroup><author><surname> #: freeculture.xml:33 msgid "Lessig" msgstr "" #. type: Content of: <book><bookinfo><subjectset><subject><subjectterm> #: freeculture.xml:56 msgid "Intellectual property—United States." msgstr "" #. type: Content of: <book><bookinfo><subjectset><subject><subjectterm> #: freeculture.xml:59 msgid "Mass media—United States." msgstr "" #. type: Content of: <book><bookinfo><subjectset><subject><subjectterm> #: freeculture.xml:62 msgid "Technological innovations—United States." msgstr "" #. type: Content of: <book><bookinfo><subjectset><subject><subjectterm> #: freeculture.xml:65 msgid "Art—United States." msgstr "" #. type: Content of: <book><bookinfo><publisher><address> #: freeculture.xml:72 #, no-wrap msgid "<city>Oslo</city>" msgstr "" #. type: Content of: <book><bookinfo> #: freeculture.xml:70 msgid "" "<publisher> <publishername>Petter Reinholdtsen</publishername> <placeholder " "type=\"address\" id=\"0\"/> </publisher> <copyright> <year>2004</year> " "<holder>Lawrence Lessig</holder> </copyright>" msgstr "" #. type: Content of: <book><bookinfo><legalnotice><para><inlinemediaobject> #: freeculture.xml:82 msgid "" "<imageobject> <imagedata fileref=\"images/cc.png\" contentdepth=\"3em\" " "width=\"100%\" align=\"center\"/> </imageobject> <imageobject> <imagedata " "fileref=\"images/cc.svg\" contentdepth=\"3em\" width=\"100%\" " "align=\"center\"/> </imageobject>" msgstr "" #. type: Content of: <book><bookinfo><legalnotice><para><inlinemediaobject><textobject><phrase> #: freeculture.xml:89 msgid "Creative Commons, Some rights reserved" msgstr "" #. type: Content of: <book><bookinfo><legalnotice><para> #: freeculture.xml:81 msgid "<placeholder type=\"inlinemediaobject\" id=\"0\"/>" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:95 freeculture.xml:15881 msgid "" "This book 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 visit <ulink " "url=\"http://creativecommons.org/licenses/by-nc/1.0/\"/>." msgstr "" #. type: Content of: <book><bookinfo><abstract><title> #: freeculture.xml:103 msgid "About the author" msgstr "" #. type: Content of: <book><bookinfo><abstract><para> #: freeculture.xml:105 msgid "" "Lawrence Lessig (<ulink " "url=\"http://www.lessig.org\">http://www.lessig.org</ulink>), professor of " "law and a Roy L. Furman Professor of Law and Leadership at Harvard Law " "School, is founder of the Stanford Center for Internet and Society and is " "chairman of the Creative Commons (<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 <quote>e.biz " "25,</quote> and named one of Scientific American's <quote>50 " "visionaries.</quote> 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 "" #. testing different ways to tag the cover page #. type: Content of: <book><bookinfo><mediaobject> #: freeculture.xml:126 msgid "" "<imageobject remap=\"lrg\" role=\"front-large\"> <imagedata " "fileref=\"images/cover-front-72dpi.png\" format=\"PNG\" width=\"444\" /> " "</imageobject> <imageobject remap=\"s\" role=\"front\"> <imagedata " "fileref=\"images/cover-front-10dpi.png\" format=\"PNG\" width=\"444\" /> " "</imageobject> <imageobject remap=\"xs\" role=\"front-small\"> <imagedata " "fileref=\"images/cover-front-10dpi.png\" format=\"PNG\" width=\"444\" /> " "</imageobject> <imageobject remap=\"cs\" role=\"thumbnail\"> <imagedata " "fileref=\"images/cover-front-10dpi.png\" format=\"PNG\" width=\"444\" /> " "</imageobject>" msgstr "" #. LCCN from #. http://catalog.loc.gov/cgi-bin/Pwebrecon.cgi?v3=1&DB=local&CMD=010a+2003063276&CNT=10+records+per+page #. #. type: Content of: <book><bookinfo> #: freeculture.xml:124 msgid "" " <placeholder type=\"mediaobject\" id=\"0\"/> <biblioid " "class=\"isbn\">978-82-690182-0-2</biblioid> <biblioid " "class=\"libraryofcongress\">2003063276</biblioid> <biblioid " "class=\"uri\">http://free-culture.cc/</biblioid>" msgstr "" #. type: Content of: <book><dedication><title> #: freeculture.xml:153 msgid "Also by Lawrence Lessig" msgstr "" #. type: Content of: <book><dedication><itemizedlist><listitem><para> #: freeculture.xml:159 msgid "The USA is lesterland: The nature of congressional corruption (2014)" msgstr "" #. type: Content of: <book><dedication><itemizedlist><listitem><para> #: freeculture.xml:162 msgid "Republic, lost: How money corrupts Congress - and a plan to stop it (2011)" msgstr "" #. type: Content of: <book><dedication><itemizedlist><listitem><para> #: freeculture.xml:165 msgid "Remix: Making art and commerce thrive in the hybrid economy (2008)" msgstr "" #. type: Content of: <book><dedication><itemizedlist><listitem><para> #: freeculture.xml:168 msgid "Code: Version 2.0 (2006)" msgstr "" #. type: Content of: <book><dedication><itemizedlist><listitem><para> #: freeculture.xml:171 msgid "The Future of Ideas: The Fate of the Commons in a Connected World (2001)" msgstr "" #. type: Content of: <book><dedication><itemizedlist><listitem><para> #: freeculture.xml:174 msgid "Code: And Other Laws of Cyberspace (1999)" msgstr "" #. type: Content of: <book><dedication><para> #: freeculture.xml:187 msgid "" "To Eric Eldred — whose work first drew me to this cause, and for whom " "it continues still." msgstr "" #. type: Content of: <book><lot><title> #: freeculture.xml:197 msgid "List of figures" msgstr "" #. type: Content of: <book><preface><title> #: freeculture.xml:259 msgid "Preface" msgstr "" #. type: Content of: <book><preface><indexterm><primary> #: freeculture.xml:260 msgid "Pogue, David" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:261 freeculture.xml:6524 freeculture.xml:6655 freeculture.xml:6719 msgid "Code (Lessig)" msgstr "" #. type: Content of: <book><preface><para> #: freeculture.xml:263 msgid "" "<emphasis role=\"bold\">At the end</emphasis> of his review of my first " "book, <citetitle>Code: And Other Laws of Cyberspace</citetitle>, 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:274 msgid "" "David Pogue, <quote>Don't Just Chat, Do Something,</quote> <citetitle>New " "York Times</citetitle>, 30 January 2000." msgstr "" #. type: Content of: <book><preface><blockquote><para> #: freeculture.xml:270 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:279 msgid "" "Pogue was skeptical of the core argument of the book—that software, or " "<quote>code,</quote> functioned as a kind of law—and his review " "suggested the happy thought that if life in cyberspace got bad, we could " "always <quote>drizzle, drazzle, druzzle, drome</quote>-like simply flip a " "switch and be back home. Turn off the modem, unplug the computer, and any " "troubles that exist in <emphasis>that</emphasis> space wouldn't " "<quote>affect</quote> us anymore." msgstr "" #. PAGE BREAK 12 #. type: Content of: <book><preface><para> #: freeculture.xml:288 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: <citetitle>Free " "Culture</citetitle> 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 <quote>people who aren't " "online.</quote> There is no switch that will insulate us from the Internet's " "effect." msgstr "" #. type: Content of: <book><preface><para> #: freeculture.xml:299 msgid "" "But unlike <citetitle>Code</citetitle>, 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:311 msgid "" "Richard M. Stallman, <citetitle>Free Software, Free Societies</citetitle> 57 " "(Joshua Gay, ed. 2002)." msgstr "" #. type: Content of: <book><preface><para> #: freeculture.xml:306 msgid "" "That tradition is the way our culture gets made. As I explain in the pages " "that follow, we come from a tradition of <quote>free " "culture</quote>—not <quote>free</quote> as in <quote>free beer</quote> " "(to borrow a phrase from the founder of the free software " "movement<placeholder type=\"footnote\" id=\"0\"/>), but <quote>free</quote> " "as in <quote>free speech,</quote> <quote>free markets,</quote> <quote>free " "trade,</quote> <quote>free enterprise,</quote> <quote>free will,</quote> and " "<quote>free elections.</quote> 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 <emphasis>as free as " "possible</emphasis> 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 <quote>permission " "culture</quote>—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:326 msgid "" "If we understood this change, I believe we would resist it. Not " "<quote>we</quote> on the Left or <quote>you</quote> 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:334 freeculture.xml:989 msgid "power, concentration of" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:335 freeculture.xml:13954 msgid "CodePink Women in Peace" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:336 freeculture.xml:357 freeculture.xml:13955 msgid "Safire, William" msgstr "" #. type: Content of: <book><preface><indexterm><primary> #: freeculture.xml:337 msgid "Stevens, Ted" msgstr "" #. type: Content of: <book><preface><para> #: freeculture.xml:339 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 <quote>uncomfortably alongside CodePink Women for Peace and the " "National Rifle Association, between liberal Olympia Snowe and conservative " "Ted Stevens,</quote> he formulated perhaps most simply just what was at " "stake: the concentration of power. And as he asked," msgstr "" #. type: Content of: <book><preface><blockquote><para><footnote><para> #: freeculture.xml:355 msgid "" "William Safire, <quote>The Great Media Gulp,</quote> <citetitle>New York " "Times</citetitle>, 22 May 2003. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><preface><blockquote><para> #: freeculture.xml:351 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:362 msgid "" "This idea is an element of the argument of <citetitle>Free " "Culture</citetitle>, 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." msgstr "" #. type: Content of: <book><preface><para> #: freeculture.xml:373 msgid "" "<emphasis role=\"strong\">The inspiration</emphasis> 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 <citetitle>Free Software, Free Society</citetitle>, " "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 " "<quote>merely</quote> derivative." msgstr "" #. PAGE BREAK 14 #. type: Content of: <book><preface><para> #: freeculture.xml:382 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:400 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:415 msgid "Introduction" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:416 freeculture.xml:519 freeculture.xml:978 msgid "Wright brothers" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:418 msgid "" "<emphasis role=\"strong\">On December 17</emphasis>, 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><indexterm><primary> #: freeculture.xml:425 msgid "air traffic, land ownership vs." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:426 freeculture.xml:14986 msgid "land ownership, air traffic and" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:427 freeculture.xml:4693 freeculture.xml:13856 freeculture.xml:14987 msgid "property rights" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:427 freeculture.xml:14987 msgid "air traffic vs." msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:433 msgid "" "St. George Tucker, <citetitle>Blackstone's Commentaries</citetitle> 3 (South " "Hackensack, N.J.: Rothman Reprints, 1969), 18." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:429 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 <quote>an indefinite extent, upwards.</quote><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:443 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:451 freeculture.xml:464 freeculture.xml:497 freeculture.xml:517 freeculture.xml:703 freeculture.xml:831 freeculture.xml:958 freeculture.xml:976 freeculture.xml:1024 freeculture.xml:9642 freeculture.xml:13271 freeculture.xml:14058 msgid "Causby, Thomas Lee" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:452 freeculture.xml:465 freeculture.xml:498 freeculture.xml:518 freeculture.xml:704 freeculture.xml:832 freeculture.xml:959 freeculture.xml:977 freeculture.xml:1025 freeculture.xml:9643 freeculture.xml:13272 freeculture.xml:14059 msgid "Causby, Tinie" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:454 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 <quote>an indefinite extent, upwards,</quote> " "then the government was trespassing on their property, and the Causbys " "wanted it to stop." msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:466 msgid "Douglas, William O." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:467 freeculture.xml:4581 freeculture.xml:5184 freeculture.xml:8955 freeculture.xml:12299 freeculture.xml:12300 freeculture.xml:14370 msgid "Supreme Court, U.S." msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:467 msgid "on airspace vs. land rights" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:469 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 " "<quote>taking</quote> of property without compensation. The Court " "acknowledged that <quote>it is ancient doctrine that common law ownership of " "the land extended to the periphery of the universe.</quote> 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:489 msgid "" "United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find that " "there could be a <quote>taking</quote> 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, <quote>(Intellectual) " "Property and Sovereignty: Notes Toward a Cultural Geography of " "Authorship,</quote> <citetitle>Stanford Law Review</citetitle> 48 (1996): " "1293, 1333. See also Paul Goldstein, <citetitle>Real Property</citetitle> " "(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:480 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:503 msgid "<quote>Common sense revolts at the idea.</quote>" msgstr "" #. PAGE BREAK 18 #. type: Content of: <book><chapter><para> #: freeculture.xml:507 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: <quote>Common sense revolts " "at the idea.</quote> 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:521 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 <quote>what seemed reasonable</quote> 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 <quote>obvious</quote> to " "everyone else—the power of <quote>common sense</quote>—would " "prevail. Their <quote>private interest</quote> would not be allowed to " "defeat an obvious public gain." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:542 freeculture.xml:9650 freeculture.xml:10357 msgid "Armstrong, Edwin Howard" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:543 msgid "Bell, Alexander Graham" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:544 msgid "Edison, Thomas" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:545 msgid "Faraday, Michael" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:546 freeculture.xml:3373 freeculture.xml:4316 freeculture.xml:6874 freeculture.xml:8667 freeculture.xml:10261 freeculture.xml:10309 msgid "radio" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:546 freeculture.xml:6874 msgid "FM spectrum of" msgstr "" #. PAGE BREAK 19 #. type: Content of: <book><chapter><para> #: freeculture.xml:548 msgid "" "<emphasis role='strong'>Edwin Howard Armstrong</emphasis> 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." 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: <quote>This is amateur station W2AG at Yonkers, New " "York, operating on frequency modulation at two and a half meters.</quote>" 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, <citetitle>Man of High Fidelity: Edwin Howard " "Armstrong</citetitle> (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 <quote>music box.</quote><placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:598 freeculture.xml:6877 freeculture.xml:14122 msgid "RCA" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:599 freeculture.xml:2482 freeculture.xml:2500 freeculture.xml:2534 freeculture.xml:2536 msgid "media" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:599 freeculture.xml:2536 msgid "ownership concentration in" msgstr "" #. PAGE BREAK 20 #. type: Content of: <book><chapter><para> #: freeculture.xml:601 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><indexterm><primary> #: freeculture.xml:609 freeculture.xml:631 msgid "Sarnoff, David" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:611 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 <quote>radio.</quote> But when Armstrong demonstrated his invention, " "Sarnoff was not pleased." msgstr "" #. type: Content of: <book><chapter><blockquote><para><footnote><para> #: freeculture.xml:622 msgid "" "See <quote>Saints: The Heroes and Geniuses of the Electronic Era,</quote> " "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:619 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><part><chapter><section><indexterm><primary> #: freeculture.xml:630 freeculture.xml:6873 msgid "FM radio" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:633 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," msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:638 msgid "Lessing, Lawrence" msgstr "" #. type: Content of: <book><chapter><blockquote><para><footnote><para> #: freeculture.xml:646 msgid "Lessing, 226." msgstr "" #. type: Content of: <book><chapter><blockquote><para> #: freeculture.xml:641 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><indexterm><primary> #: freeculture.xml:650 msgid "FCC" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:650 msgid "on FM radio" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:652 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:671 msgid "Lessing, 256." msgstr "" #. type: Content of: <book><chapter><blockquote><para> #: freeculture.xml:667 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:676 msgid "AT&T" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:678 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:690 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:706 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><section><section><section><indexterm><primary> #: freeculture.xml:723 freeculture.xml:1097 freeculture.xml:2315 freeculture.xml:2352 freeculture.xml:2365 freeculture.xml:2449 freeculture.xml:2483 freeculture.xml:2509 freeculture.xml:2760 freeculture.xml:4186 freeculture.xml:6757 freeculture.xml:7620 freeculture.xml:7688 freeculture.xml:7976 freeculture.xml:10260 freeculture.xml:13587 freeculture.xml:14153 freeculture.xml:14154 freeculture.xml:14228 freeculture.xml:14759 msgid "Internet" msgstr "" #. type: Content of: <book><chapter><section><indexterm><secondary> #: freeculture.xml:723 freeculture.xml:4733 freeculture.xml:13587 freeculture.xml:14153 msgid "development of" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:731 msgid "" "Amanda Lenhart, <quote>The Ever-Shifting Internet Population: A New Look at " "Internet Access and the Digital Divide,</quote> 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:725 msgid "" "<emphasis role=\"strong\">There's no</emphasis> 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:740 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:751 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 "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:760 msgid "Barlow, Joel" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:761 freeculture.xml:762 msgid "culture" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:761 freeculture.xml:810 freeculture.xml:1701 freeculture.xml:5291 freeculture.xml:6526 freeculture.xml:14193 msgid "free culture" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:762 msgid "commercial vs. noncommercial" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:763 msgid "Webster, Noah" msgstr "" #. PAGE BREAK 23 #. type: Content of: <book><chapter><para> #: freeculture.xml:765 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 " "<quote>commercial culture</quote> I mean that part of our culture that is " "produced and sold or produced to be sold. By <quote>noncommercial " "culture</quote> 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 " "<quote>Reader,</quote> or Joel Barlow his poetry, that was commercial " "culture." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:777 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 " "<quote>free.</quote> 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><part><chapter><section><indexterm><primary> #: freeculture.xml:787 freeculture.xml:2856 freeculture.xml:2857 freeculture.xml:2884 freeculture.xml:2885 freeculture.xml:2886 freeculture.xml:4261 freeculture.xml:7851 freeculture.xml:9711 freeculture.xml:9712 freeculture.xml:9989 freeculture.xml:9990 freeculture.xml:9991 freeculture.xml:10034 msgid "copyright infringement lawsuits" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:787 msgid "commercial creativity as primary purpose of" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:803 freeculture.xml:1942 freeculture.xml:1955 msgid "Brandeis, Louis D." msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:795 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, <quote>The Right to Privacy,</quote> <citetitle>Harvard " "Law Review</citetitle> 4 (1890): 193, 198–200. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:789 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><indexterm><secondary> #: freeculture.xml:810 msgid "permission culture vs." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:811 freeculture.xml:10105 msgid "permission culture" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:811 msgid "free culture vs." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:817 freeculture.xml:10244 msgid "Litman, Jessica" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:815 msgid "" "See Jessica Litman, <citetitle>Digital Copyright</citetitle> (New York: " "Prometheus Books, 2001), ch. 13. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:813 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><indexterm><primary> #: freeculture.xml:833 msgid "protection of artists vs. business interests" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:835 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:849 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:868 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><part><chapter><indexterm><primary> #: freeculture.xml:877 freeculture.xml:4400 freeculture.xml:6298 freeculture.xml:7575 freeculture.xml:11227 freeculture.xml:13160 msgid "Valenti, Jack" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:877 freeculture.xml:7575 msgid "on creative property rights" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:887 msgid "" "Amy Harmon, <quote>Black Hawk Download: Moving Beyond Music, Pirates Use New " "Tools to Turn the Net into an Illicit Video Club,</quote> <citetitle>New " "York Times</citetitle>, 17 January 2002." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:879 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 <quote>piracy</quote> " "will be permitted, and whether <quote>property</quote> will be " "protected. The <quote>war</quote> that has been waged against the " "technologies of the Internet—what Motion Picture Association of " "America (MPAA) president Jack Valenti calls his <quote>own terrorist " "war</quote><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:896 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 <quote>creative " "property.</quote> I believe that <quote>piracy</quote> is wrong, and that " "the law, properly tuned, should punish <quote>piracy,</quote> whether on or " "off the Internet." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:904 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 <quote>pirates</quote> will also rid our " "culture of values that have been integral to our tradition from the start." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:909 freeculture.xml:6909 freeculture.xml:7022 freeculture.xml:7023 freeculture.xml:7024 freeculture.xml:7073 freeculture.xml:7663 freeculture.xml:8953 freeculture.xml:11253 freeculture.xml:11555 freeculture.xml:12210 freeculture.xml:12371 msgid "Constitution, U.S." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:909 freeculture.xml:6909 freeculture.xml:7663 freeculture.xml:8953 msgid "First Amendment to" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:910 freeculture.xml:1075 freeculture.xml:1183 freeculture.xml:1209 freeculture.xml:1433 freeculture.xml:1554 freeculture.xml:1598 freeculture.xml:1712 freeculture.xml:3123 freeculture.xml:3218 freeculture.xml:4314 freeculture.xml:4315 freeculture.xml:4344 freeculture.xml:4733 freeculture.xml:4734 freeculture.xml:5335 freeculture.xml:6528 freeculture.xml:6976 freeculture.xml:7060 freeculture.xml:7061 freeculture.xml:7246 freeculture.xml:7346 freeculture.xml:7378 freeculture.xml:7408 freeculture.xml:7443 freeculture.xml:7557 freeculture.xml:7558 freeculture.xml:7619 freeculture.xml:7657 freeculture.xml:7757 freeculture.xml:7771 freeculture.xml:7830 freeculture.xml:7831 freeculture.xml:7929 freeculture.xml:9875 freeculture.xml:10233 freeculture.xml:11192 freeculture.xml:11238 msgid "copyright law" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:910 freeculture.xml:7060 msgid "as protection of creators" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:911 freeculture.xml:6910 freeculture.xml:7664 freeculture.xml:8954 msgid "First Amendment" msgstr "" #. type: Content of: <book><chapter><section><section><para><footnote><para><indexterm><primary> #: freeculture.xml:912 freeculture.xml:922 freeculture.xml:15385 msgid "Netanel, Neil Weinstock" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:920 msgid "" "Neil W. Netanel, <quote>Copyright and a Democratic Civil Society,</quote> " "<citetitle>Yale Law Journal</citetitle> 106 (1996): 283. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:914 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:930 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:942 msgid "" "The story that follows is about this war. It is not about the " "<quote>centrality of technology</quote> 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:950 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><indexterm><primary> #: freeculture.xml:960 freeculture.xml:1147 freeculture.xml:13503 freeculture.xml:13586 freeculture.xml:13756 msgid "intellectual property rights" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:962 msgid "" "<emphasis role=\"strong\">Like the Causbys'</emphasis> battle, this war is, " "in part, about <quote>property.</quote> 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 <quote>property</quote> 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 <quote>intellectual property</quote> 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 <quote>trespassing</quote> upon legitimate " "claims of <quote>property.</quote> 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:980 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:991 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 " "<quote>culture</quote> was as <quote>owned</quote> as it is now. And yet " "there has never been a time when the concentration of power to control the " "<emphasis>uses</emphasis> of culture has been as unquestioningly accepted as " "it is now." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:1001 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:1007 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:1011 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:1018 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:1027 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 <quote>intellectual property.</quote> 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:1038 msgid "" "<emphasis role=\"strong\">The struggle</emphasis> that rages just now " "centers on two ideas: <quote>piracy</quote> and <quote>property.</quote> My " "aim in this book's next two parts is to explore these two ideas." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:1043 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:1051 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 <quote>something new,</quote> is destroying " "something very old. Rather than understanding the changes the Internet might " "permit, and rather than taking time to let <quote>common sense</quote> " "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:1062 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><part><title> #: freeculture.xml:1072 msgid "<quote>Piracy</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1075 freeculture.xml:4734 msgid "English" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1076 freeculture.xml:5144 msgid "Mansfield, William Murray, Lord" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1077 freeculture.xml:3161 msgid "music publishing" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1078 freeculture.xml:3215 msgid "sheet music" msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:1080 msgid "" "<emphasis role=\"strong\">Since the inception</emphasis> of the law " "regulating creative property, there has been a war against " "<quote>piracy.</quote> The precise contours of this concept, " "<quote>piracy,</quote> 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><part><partintro><blockquote><para><footnote><para> #: freeculture.xml:1092 msgid "" "<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 " "Eng. Rep. 1274 (1777) (Mansfield)." msgstr "" #. type: Content of: <book><part><partintro><blockquote><para> #: freeculture.xml:1088 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 "" #. type: Content of: <book><part><partintro><indexterm><secondary> #: freeculture.xml:1097 msgid "efficient content distribution on" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1098 freeculture.xml:3905 freeculture.xml:4263 freeculture.xml:6249 freeculture.xml:6758 freeculture.xml:11241 msgid "peer-to-peer (p2p) file sharing" msgstr "" #. type: Content of: <book><part><partintro><indexterm><secondary> #: freeculture.xml:1098 msgid "efficiency of" msgstr "" #. PAGE BREAK 31 #. type: Content of: <book><part><partintro><para> #: freeculture.xml:1100 msgid "" "Today we are in the middle of another <quote>war</quote> against " "<quote>piracy.</quote> 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><part><partintro><para> #: freeculture.xml:1109 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 <quote>rob the author of the profit.</quote>" msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:1118 msgid "" "The warriors have turned to the courts, to the legislatures, and " "increasingly to technology to defend their <quote>property</quote> against " "this <quote>piracy.</quote> A generation of Americans, the warriors warn, is " "being raised to believe that <quote>property</quote> should be " "<quote>free.</quote> Forget tattoos, never mind body piercing—our kids " "are becoming <emphasis>thieves</emphasis>!" msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:1126 msgid "" "There's no doubt that <quote>piracy</quote> is wrong, and that pirates " "should be punished. But before we summon the executioners, we should put " "this notion of <quote>piracy</quote> 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><part><partintro><para> #: freeculture.xml:1132 msgid "The idea goes something like this:" msgstr "" #. type: Content of: <book><part><partintro><blockquote><para> #: freeculture.xml:1136 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><part><partintro><indexterm><primary> #: freeculture.xml:1144 msgid "ASCAP" msgstr "" #. type: Content of: <book><part><partintro><indexterm><primary> #: freeculture.xml:1145 msgid "Dreyfuss, Rochelle" msgstr "" #. type: Content of: <book><part><partintro><indexterm><primary> #: freeculture.xml:1146 msgid "Girl Scouts" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1147 freeculture.xml:1148 freeculture.xml:7027 freeculture.xml:7131 freeculture.xml:7576 msgid "creative property" msgstr "" #. type: Content of: <book><part><partintro><indexterm><secondary> #: freeculture.xml:1148 msgid "<quote>if value, then right</quote> theory of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1149 freeculture.xml:3013 msgid "<quote>if value, then right</quote> theory" msgstr "" #. f2 #. type: Content of: <book><part><partintro><para><footnote><para> #: freeculture.xml:1155 msgid "" "See Rochelle Dreyfuss, <quote>Expressive Genericity: Trademarks as Language " "in the Pepsi Generation,</quote> <citetitle>Notre Dame Law " "Review</citetitle> 65 (1990): 397." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:1168 freeculture.xml:7512 msgid "Zittrain, Jonathan" msgstr "" #. type: Content of: <book><part><partintro><para><footnote><para> #: freeculture.xml:1163 msgid "" "Lisa Bannon, <quote>The Birds May Sing, but Campers Can't Unless They Pay " "Up,</quote> <citetitle>Wall Street Journal</citetitle>, 21 August 1996, " "available at <ulink url=\"http://free-culture.cc/notes/\">link #3</ulink>; " "Jonathan Zittrain, <quote>Calling Off the Copyright War: In Battle of " "Property vs. Free Speech, No One Wins,</quote> <citetitle>Boston " "Globe</citetitle>, 24 November 2002. <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:1151 msgid "" "This view runs deep within the current debates. It is what NYU law professor " "Rochelle Dreyfuss criticizes as the <quote>if value, then right</quote> " "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 " "<quote>value</quote> (the songs) so there must have been a " "<quote>right</quote>—even against the Girl Scouts." msgstr "" #. PAGE BREAK 32 #. type: Content of: <book><part><partintro><para> #: freeculture.xml:1175 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 <quote>if value, then right</quote> " "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><part><chapter><section><indexterm><secondary> #: freeculture.xml:1183 freeculture.xml:7346 freeculture.xml:7443 freeculture.xml:7757 msgid "on republishing vs. transformation of original work" msgstr "" #. type: Content of: <book><part><chapter><section><para><indexterm><seealso> #: freeculture.xml:1184 freeculture.xml:1185 freeculture.xml:1367 freeculture.xml:1525 freeculture.xml:3825 msgid "creativity" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1184 freeculture.xml:3825 freeculture.xml:3826 freeculture.xml:3833 freeculture.xml:9876 msgid "innovation" msgstr "" #. type: Content of: <book><part><partintro><indexterm><secondary> #: freeculture.xml:1185 msgid "legal restrictions on" msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:1187 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><part><partintro><para> #: freeculture.xml:1194 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><part><partintro><para> #: freeculture.xml:1202 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><part><partintro><indexterm><secondary> #: freeculture.xml:1209 msgid "creativity impeded by" msgstr "" #. type: Content of: <book><part><partintro><para><footnote><para><indexterm><primary> #: freeculture.xml:1210 freeculture.xml:1241 msgid "Florida, Richard" msgstr "" #. type: Content of: <book><part><partintro><para><footnote><para><indexterm><primary> #: freeculture.xml:1211 freeculture.xml:1242 msgid "Rise of the Creative Class, The (Florida)" msgstr "" #. type: Content of: <book><part><partintro><para><footnote><para> #: freeculture.xml:1233 msgid "" "In <citetitle>The Rise of the Creative Class</citetitle> (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\"/> <placeholder " "type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:1213 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 <quote>copying,</quote> 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 <quote>Rise of the Creative Class.</quote><placeholder " "type=\"footnote\" id=\"0\"/> Unfortunately, we are also seeing an " "extraordinary rise of regulation of this creative class." msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:1249 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 <quote>piracy.</quote>" msgstr "" #. type: Content of: <book><part><chapter><title> #: freeculture.xml:1257 msgid "Chapter One: Creators" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1258 msgid "animated cartoons" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1259 msgid "cartoon films" msgstr "" #. type: Content of: <book><part><chapter><blockquote><indexterm><primary> #: freeculture.xml:1260 freeculture.xml:5339 freeculture.xml:5373 freeculture.xml:6086 freeculture.xml:6130 freeculture.xml:6248 msgid "films" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1260 msgid "animated" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1261 msgid "Steamboat Willie" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1262 freeculture.xml:7537 msgid "Mickey Mouse" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1264 msgid "" "<emphasis role=\"strong\">In 1928</emphasis>, a cartoon character was " "born. An early Mickey Mouse made his debut in May of that year, in a silent " "flop called <citetitle>Plane Crazy</citetitle>. In November, in New York " "City's Colony Theater, in the first widely distributed cartoon synchronized " "with sound, <citetitle>Steamboat Willie</citetitle> brought to life the " "character that would become Mickey Mouse." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1270 freeculture.xml:1488 freeculture.xml:1542 freeculture.xml:1683 freeculture.xml:1929 freeculture.xml:4568 freeculture.xml:6266 freeculture.xml:7536 freeculture.xml:11133 freeculture.xml:11558 msgid "Disney, Walt" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1272 msgid "" "Synchronized sound had been introduced to film a year earlier in the movie " "<citetitle>The Jazz Singer</citetitle>. 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><part><chapter><blockquote><para> #: freeculture.xml:1281 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><part><chapter><blockquote><para> #: freeculture.xml:1288 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><part><chapter><blockquote><para><footnote><para> #: freeculture.xml:1301 msgid "" "Leonard Maltin, <citetitle>Of Mice and Magic: A History of American Animated " "Cartoons</citetitle> (New York: Penguin Books, 1987), 34–35." msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:1295 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><part><chapter><indexterm><primary> #: freeculture.xml:1306 msgid "Iwerks, Ub" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1308 msgid "" "Disney's then partner, and one of animation's most extraordinary talents, Ub " "Iwerks, put it more strongly: <quote>I have never been so thrilled in my " "life. Nothing since has ever equaled it.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1313 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><part><chapter><indexterm><primary> #: freeculture.xml:1322 freeculture.xml:1685 msgid "Keaton, Buster" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1323 freeculture.xml:1555 freeculture.xml:1943 msgid "Steamboat Bill, Jr." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1325 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 <citetitle>Steamboat Bill, Jr</citetitle>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1331 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. <citetitle>Steamboat Bill, Jr</citetitle>. 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1338 freeculture.xml:1496 freeculture.xml:7347 freeculture.xml:7444 freeculture.xml:7622 freeculture.xml:7726 freeculture.xml:7772 msgid "derivative works" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:1338 freeculture.xml:1496 freeculture.xml:7444 freeculture.xml:7622 msgid "piracy vs." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:1339 freeculture.xml:1499 freeculture.xml:3012 freeculture.xml:3723 freeculture.xml:7445 freeculture.xml:7623 freeculture.xml:15453 msgid "piracy" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:1339 freeculture.xml:1499 freeculture.xml:7445 freeculture.xml:7623 msgid "derivative work vs." msgstr "" #. f2 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1347 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 <citetitle>Steamboat Willie</citetitle>: <quote>Steamboat " "Bill,</quote> <quote>The Simpleton</quote> (Delille), <quote>Mischief " "Makers</quote> (Carbonara), <quote>Joyful Hurry No. 1</quote> (Baron), and " "<quote>Gawky Rube</quote> (Lakay). A sixth song, <quote>The Turkey in the " "Straw,</quote> 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><part><chapter><para> #: freeculture.xml:1341 msgid "" "<citetitle>Steamboat Bill, Jr</citetitle>. 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 " "<citetitle>The Jazz Singer</citetitle> that we get <citetitle>Steamboat " "Willie</citetitle>. It is also from Buster Keaton's invention of Steamboat " "Bill, Jr., itself inspired by the song <quote>Steamboat Bill,</quote> that " "we get Steamboat Willie, and then from Steamboat Willie, Mickey Mouse." msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1367 freeculture.xml:1525 msgid "by transforming previous works" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1368 freeculture.xml:6309 freeculture.xml:7829 msgid "Disney, Inc." msgstr "" #. f3 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1374 msgid "" "He was also a fan of the public domain. See Chris Sprigman, <quote>The Mouse " "that Ate the Public Domain,</quote> Findlaw, 5 March 2002, at <ulink " "url=\"http://free-culture.cc/notes/\">link #5</ulink>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1370 msgid "" "This <quote>borrowing</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:1388 freeculture.xml:1684 freeculture.xml:11134 msgid "Grimm fairy tales" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1390 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><part><chapter><para> #: freeculture.xml:1399 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: <citetitle>Snow White</citetitle> (1937), " "<citetitle>Fantasia</citetitle> (1940), <citetitle>Pinocchio</citetitle> " "(1940), <citetitle>Dumbo</citetitle> (1941), <citetitle>Bambi</citetitle> " "(1942), <citetitle>Song of the South</citetitle> (1946), " "<citetitle>Cinderella</citetitle> (1950), <citetitle>Alice in " "Wonderland</citetitle> (1951), <citetitle>Robin Hood</citetitle> (1952), " "<citetitle>Peter Pan</citetitle> (1953), <citetitle>Lady and the " "Tramp</citetitle> (1955), <citetitle>Mulan</citetitle> (1998), " "<citetitle>Sleeping Beauty</citetitle> (1959), <citetitle>101 " "Dalmatians</citetitle> (1961), <citetitle>The Sword in the Stone</citetitle> " "(1963), and <citetitle>The Jungle Book</citetitle> (1967)—not to " "mention a recent example that we should perhaps quickly forget, " "<citetitle>Treasure Planet</citetitle> (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><part><chapter><para> #: freeculture.xml:1422 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 <quote>Disney creativity,</quote> though that would be a bit " "misleading. It is, more precisely, <quote>Walt Disney " "creativity</quote>—a form of expression and genius that builds upon " "the culture around us and makes it something different." msgstr "" #. type: Content of: <book><chapter><section><indexterm><primary> #: freeculture.xml:1433 freeculture.xml:1434 freeculture.xml:4786 freeculture.xml:4787 freeculture.xml:4853 freeculture.xml:4891 freeculture.xml:4947 freeculture.xml:4993 freeculture.xml:5128 freeculture.xml:5222 freeculture.xml:6725 freeculture.xml:7025 freeculture.xml:7026 freeculture.xml:7029 freeculture.xml:7102 freeculture.xml:7128 freeculture.xml:7168 freeculture.xml:7292 freeculture.xml:7339 freeculture.xml:7376 freeculture.xml:7679 freeculture.xml:7850 freeculture.xml:11191 freeculture.xml:11215 freeculture.xml:11556 freeculture.xml:11557 freeculture.xml:14101 freeculture.xml:14135 msgid "copyright" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1434 freeculture.xml:4786 freeculture.xml:4947 freeculture.xml:7026 freeculture.xml:7029 freeculture.xml:7128 freeculture.xml:11191 freeculture.xml:11557 msgid "duration of" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:1435 freeculture.xml:1436 freeculture.xml:5223 freeculture.xml:7132 freeculture.xml:7257 freeculture.xml:8144 freeculture.xml:11125 freeculture.xml:13591 freeculture.xml:14387 freeculture.xml:14388 msgid "public domain" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1435 msgid "defined" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1436 msgid "traditional term for conversion to" msgstr "" #. f4 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1443 msgid "" "Until 1976, copyright law granted an author the possibility of two terms: an " "initial term and a renewal term. I have calculated the " "<quote>average</quote> 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><part><chapter><para> #: freeculture.xml:1437 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 <quote>exclusive right</quote> 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><part><chapter><para> #: freeculture.xml:1460 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 <quote>lawyer-free zone.</quote> " "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><part><chapter><para> #: freeculture.xml:1471 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><part><chapter><para> #: freeculture.xml:1490 msgid "" "<emphasis role=\"strong\">Of course</emphasis>, Walt Disney had no monopoly " "on <quote>Walt Disney creativity.</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:1495 freeculture.xml:1599 freeculture.xml:1713 msgid "comics, Japanese" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1497 freeculture.xml:1715 msgid "Japanese comics" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1498 freeculture.xml:1716 msgid "manga" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1501 msgid "" "Consider, for example, a form of creativity that seems strange to many " "Americans but that is inescapable within Japanese culture: " "<citetitle>manga</citetitle>, 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><part><chapter><para> #: freeculture.xml:1510 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 <quote>graphic novels</quote> tell. For the Japanese, manga cover " "every aspect of social life. For us, comics are <quote>men in " "tights.</quote> 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><part><chapter><para> #: freeculture.xml:1521 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1526 freeculture.xml:1714 msgid "doujinshi comics" msgstr "" #. PAGE BREAK 39 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1528 msgid "" "This is the phenomenon of <citetitle>doujinshi</citetitle>. 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 " "<emphasis>just</emphasis> 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 <quote>different.</quote> 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><part><chapter><para> #: freeculture.xml:1544 msgid "" "These copycat comics are not a tiny part of the manga market. They are " "huge. More than 33,000 <quote>circles</quote> 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><part><chapter><indexterm><secondary> #: freeculture.xml:1554 freeculture.xml:1598 freeculture.xml:1712 msgid "Japanese" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1557 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 " "<quote>derivative works.</quote> 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 <citetitle>Steamboat Bill, Jr</citetitle>. Under both " "Japanese and American law, that <quote>taking</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:1571 msgid "Winick, Judd" msgstr "" #. f5 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1583 msgid "" "For an excellent history, see Scott McCloud, <citetitle>Reinventing " "Comics</citetitle> (New York: Perennial, 2000)." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1573 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, <quote>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</quote> and building " "from them.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1588 msgid "Superman comics" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1590 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, <quote>there are these rules " "and you have to stick to them.</quote> There are things Superman " "<quote>cannot</quote> do. <quote>As a creator, it's frustrating having to " "stick to some parameters which are fifty years old.</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1600 msgid "Mehra, Salil" msgstr "" #. f6 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1610 msgid "" "See Salil K. Mehra, <quote>Copyright and Comics in Japan: Does Law Explain " "Why All the Comics My Kid Watches Are Japanese Imports?</quote> " "<citetitle>Rutgers Law Review</citetitle> 55 (2002): 155, " "182. <quote>[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.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1602 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><part><chapter><para> #: freeculture.xml:1624 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 " "<quote>free taking</quote> by the doujinshi culture?" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1637 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. <quote>We don't have enough lawyers,</quote> he " "told me one afternoon. There <quote>just aren't enough resources to " "prosecute cases like this.</quote>" msgstr "" #. PAGE BREAK 41 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1644 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?" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1657 msgid "<emphasis role='strong'>Let's pause</emphasis> for a moment." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1660 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><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:1670 freeculture.xml:3033 freeculture.xml:4799 freeculture.xml:5058 freeculture.xml:7960 freeculture.xml:9098 msgid "Vaidhyanathan, Siva" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1670 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> The term <citetitle>intellectual " "property</citetitle> is of relatively recent origin. See Siva Vaidhyanathan, " "<citetitle>Copyrights and Copywrongs</citetitle>, 11 (New York: New York " "University Press, 2001). See also Lawrence Lessig, <citetitle>The Future of " "Ideas</citetitle> (New York: Random House, 2001), 293 n. 26. The term " "accurately describes a set of <quote>property</quote> rights — " "copyright, patents, trademark, and trade-secret — but the nature of " "those rights is very different." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1665 msgid "" "We live in a world that celebrates <quote>property.</quote> 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 " "<quote>intellectual property.</quote><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><part><chapter><para> #: freeculture.xml:1687 msgid "" "But it takes just a second's reflection to realize that there is plenty of " "value out there that <quote>property</quote> doesn't capture. I don't mean " "<quote>money can't buy you love,</quote> 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 " "<quote>fair.</quote> There was nothing wrong with the taking from the Grimms " "because the Grimms' work was in the public domain." msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1701 msgid "derivative works based on" msgstr "" #. PAGE BREAK 42 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1703 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><part><chapter><para> #: freeculture.xml:1718 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><part><chapter><para> #: freeculture.xml:1727 msgid "" "Yet there is an obvious reluctance, even among Japanese lawyers, to say that " "the copycat comic artists are <quote>stealing.</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:1738 freeculture.xml:4739 freeculture.xml:4871 freeculture.xml:4908 freeculture.xml:5238 msgid "Shakespeare, William" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1740 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. (<quote>Excuse me, Professor Einstein, but may " "I have permission to use your theory of relativity to show that you were " "wrong about quantum physics?</quote>) Acting companies perform adaptations " "of the works of Shakespeare without securing permission from anyone. (Does " "<emphasis>anyone</emphasis> 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><part><chapter><para> #: freeculture.xml:1754 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><part><chapter><para> #: freeculture.xml:1766 msgid "" "The hard question is therefore not <emphasis>whether</emphasis> a culture is " "free. All cultures are free to some degree. The hard question instead is " "<quote><emphasis>How</emphasis> free is this culture?</quote> 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><part><chapter><para> #: freeculture.xml:1778 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><part><chapter><title> #: freeculture.xml:1787 msgid "Chapter Two: <quote>Mere Copyists</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1788 msgid "Daguerre, Louis" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1789 freeculture.xml:1944 freeculture.xml:1999 freeculture.xml:6836 msgid "camera technology" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1790 msgid "photography" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1792 msgid "" "<emphasis role='strong'>In 1839</emphasis>, Louis Daguerre invented the " "first practical technology for producing what we would call " "<quote>photographs.</quote> Appropriately enough, they were called " "<quote>daguerreotypes.</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:1801 msgid "Talbot, William" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1803 msgid "" "Yet despite high prices, the demand for daguerreotypes was strong. This " "pushed inventors to find simpler and cheaper ways to make <quote>automatic " "pictures.</quote> William Talbot soon discovered a process for making " "<quote>negatives.</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:1813 msgid "Eastman, George" msgstr "" #. PAGE BREAK 45 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1815 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1826 freeculture.xml:1981 freeculture.xml:6838 freeculture.xml:9677 msgid "Kodak cameras" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1827 msgid "Kodak Primer, The (Eastman)" msgstr "" #. f1 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1834 msgid "" "Reese V. Jenkins, <citetitle>Images and Enterprise</citetitle> (Baltimore: " "Johns Hopkins University Press, 1975), 112." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1829 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. <quote>You press the button and we do the " "rest.</quote><placeholder type=\"footnote\" id=\"0\"/> As he described in " "<citetitle>The Kodak Primer</citetitle>:" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1850 freeculture.xml:1876 msgid "Coe, Brian" msgstr "" #. type: Content of: <book><part><chapter><blockquote><para><footnote><para> #: freeculture.xml:1850 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> Brian Coe, <citetitle>The Birth " "of Photography</citetitle> (New York: Taplinger Publishing, 1977), 53." msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:1839 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><part><chapter><para><footnote><para> #: freeculture.xml:1869 msgid "Jenkins, 177." msgstr "" #. f4 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1873 msgid "Based on a chart in Jenkins, p. 178." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1858 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 11 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><part><chapter><para><footnote><para> #: freeculture.xml:1891 msgid "Coe, 58." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1880 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, <quote>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.</quote><placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:1894 freeculture.xml:2000 freeculture.xml:2380 freeculture.xml:2398 freeculture.xml:8841 freeculture.xml:9676 freeculture.xml:15417 msgid "democracy" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1894 freeculture.xml:2000 freeculture.xml:2380 msgid "in technologies of expression" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1895 freeculture.xml:2001 freeculture.xml:2041 freeculture.xml:2382 msgid "expression, technologies of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1895 freeculture.xml:2001 freeculture.xml:2382 msgid "democratic" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1897 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 <quote>quality</quote>; 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:1910 msgid "permissions" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:1910 msgid "photography exempted from" msgstr "" #. f6 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1921 msgid "" "For illustrative cases, see, for example, <citetitle>Pavesich</citetitle> " "v. <citetitle>N.E. Life Ins. Co</citetitle>., 50 S.E. 68 (Ga. 1905); " "<citetitle>Foster-Milburn Co</citetitle>. v. <citetitle>Chinn</citetitle>, " "123090 S.W. 364, 366 (Ky. 1909); <citetitle>Corliss</citetitle> " "v. <citetitle>Walker</citetitle>, 64 F. 280 (Mass. Dist. Ct. 1894)." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1912 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:1930 freeculture.xml:9801 msgid "images, ownership of" msgstr "" #. PAGE BREAK 47 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1932 msgid "" "The arguments in favor of requiring permission will sound surprisingly " "familiar. The photographer was <quote>taking</quote> 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><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:1956 msgid "Warren, Samuel D." msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1953 msgid "" "Samuel D. Warren and Louis D. Brandeis, <quote>The Right to Privacy,</quote> " "<citetitle>Harvard Law Review</citetitle> 4 (1890): 193. <placeholder " "type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1946 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 <citetitle>Steamboat " "Bill, Jr</citetitle>. or the Brothers Grimm, the photographer should be free " "to capture an image without compensating the source." msgstr "" #. f8 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:1974 msgid "" "See Melville B. Nimmer, <quote>The Right of Publicity,</quote> " "<citetitle>Law and Contemporary Problems</citetitle> 19 (1954): 203; William " "L. Prosser, <quote>Privacy,</quote> <citetitle>California Law " "Review</citetitle> 48 (1960) 398–407; <citetitle>White</citetitle> " "v. <citetitle>Samsung Electronics America, Inc</citetitle>., 971 F. 2d 1395 " "(9th Cir. 1992), cert. denied, 508 U.S. 951 (1993)." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1964 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><part><chapter><section><indexterm><primary> #: freeculture.xml:1982 freeculture.xml:3827 freeculture.xml:3849 freeculture.xml:3850 freeculture.xml:3906 freeculture.xml:4262 freeculture.xml:5814 freeculture.xml:10042 freeculture.xml:10956 msgid "Napster" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:1984 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 " "<quote>theft</quote> committed by the photographer. Just as Napster " "benefited from the copyright infringements committed by Napster users, Kodak " "would be benefiting from the <quote>image-right</quote> 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><part><chapter><para> #: freeculture.xml:2005 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." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:2021 freeculture.xml:6837 msgid "digital cameras" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2022 msgid "Just Think!" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2024 msgid "" "<emphasis role='strong'>If you drive</emphasis> through San Francisco's " "Presidio, you might see two gaudy yellow school buses painted over with " "colorful and striking images, and the logo <quote>Just Think!</quote> in " "place of the name of a school. But there's little that's <quote>just</quote> " "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 <quote>film</quote> 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2039 freeculture.xml:2840 msgid "education" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2039 msgid "in media literacy" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2040 msgid "media literacy" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2041 msgid "media literacy and" msgstr "" #. f9 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2049 msgid "" "H. Edward Goldberg, <quote>Essential Presentation Tools: Hardware and " "Software You Need to Create Digital Multimedia Presentations,</quote> " "cadalyst, February 2002, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #7</ulink>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2043 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, <quote>Five years ago, a good " "real-time digital video editing system cost $25,000. Today you can get " "professional quality for $595.</quote><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 <quote>media " "literacy.</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2059 msgid "Yanofsky, Dave" msgstr "" #. PAGE BREAK 49 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2062 msgid "" "<quote>Media literacy,</quote> as Dave Yanofsky, the executive director of " "Just Think!, puts it, <quote>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.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2070 msgid "" "This may seem like an odd way to think about <quote>literacy.</quote> For " "most people, literacy is about reading and writing. Faulkner and Hemingway " "and noticing split infinitives are the things that <quote>literate</quote> " "people know about." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:2075 freeculture.xml:2629 freeculture.xml:6833 freeculture.xml:7810 freeculture.xml:8920 freeculture.xml:8974 msgid "advertising" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:2076 freeculture.xml:6835 freeculture.xml:8921 msgid "commercials" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:2077 freeculture.xml:6834 freeculture.xml:8922 freeculture.xml:8956 freeculture.xml:15451 msgid "television" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:2077 freeculture.xml:6834 freeculture.xml:8922 msgid "advertising on" msgstr "" #. f10 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2083 msgid "" "Judith Van Evra, <citetitle>Television and Child Development</citetitle> " "(Hillsdale, N.J.: Lawrence Erlbaum Associates, 1990); <quote>Findings on " "Family and TV Study,</quote> <citetitle>Denver Post</citetitle>, 25 May " "1997, B6." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2079 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 <quote>grammar</quote> 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><part><chapter><para> #: freeculture.xml:2094 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><part><chapter><para> #: freeculture.xml:2105 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><part><chapter><indexterm><primary> #: freeculture.xml:2112 freeculture.xml:2128 freeculture.xml:2234 msgid "Daley, Elizabeth" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2113 msgid "Crichton, Michael" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2127 freeculture.xml:2187 freeculture.xml:2194 freeculture.xml:2267 freeculture.xml:2692 msgid "Barish, Stephanie" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2125 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><part><chapter><para><footnote><para> #: freeculture.xml:2139 msgid "" "See Scott Steinberg, <quote>Crichton Gets Medieval on PCs,</quote> E!online, " "4 November 2000, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #8</ulink>; " "<quote>Timeline,</quote> 22 November 2000, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #9</ulink>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2115 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 <quote>the " "placement of objects, color, … rhythm, pacing, and " "texture.</quote><placeholder type=\"footnote\" id=\"0\"/> But as computers " "open up an interactive space where a story is <quote>played</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:2146 msgid "computer games" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2148 msgid "" "This skill is precisely the craft a filmmaker learns. As Daley describes, " "<quote>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.</quote> If you know " "you were led through a film, the film has failed." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2155 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><part><chapter><blockquote><para> #: freeculture.xml:2162 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><part><chapter><para> #: freeculture.xml:2170 msgid "" "<quote>Read-only.</quote> Passive recipients of culture produced elsewhere. " "Couch potatoes. Consumers. This is the world of media from the twentieth " "century." msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2186 msgid "Interview with Daley and Barish. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. f31 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:2191 freeculture.xml:4099 freeculture.xml:5286 freeculture.xml:8807 msgid "Ibid." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2175 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 <quote>empower people to choose the " "appropriate language for what they need to create or " "express.</quote><placeholder type=\"footnote\" id=\"0\"/> It is to enable " "students <quote>to communicate in the language of the twenty-first " "century.</quote><placeholder type=\"footnote\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2196 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><part><chapter><para> #: freeculture.xml:2209 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 " "<quote>kids were showing up at 6 A.M. and leaving at 5 at night,</quote> " "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><part><chapter><para> #: freeculture.xml:2217 msgid "" "Using whatever <quote>free web stuff they could find,</quote> and relatively " "simple tools to enable the kids to mix <quote>image, sound, and " "text,</quote> 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 <quote>gave them a tool and empowered them to be able to both " "understand it and talk about it,</quote> Barish explained. That tool " "succeeded in creating expression—far more successfully and powerfully " "than could have been created using only text. <quote>If you had said to " "these students, <quote>you have to do it in text,</quote> they would've just " "thrown their hands up and gone and done something else,</quote> 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 " "<emphasis>these</emphasis> 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><part><chapter><para> #: freeculture.xml:2238 msgid "" "<quote>But isn't education about teaching kids to write?</quote> 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 <quote>constructing " "meaning.</quote> 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><part><chapter><blockquote><para> #: freeculture.xml:2249 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, <quote>Johnny, you're illiterate. Nothing you " "can do matters.</quote> 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, <quote>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.</quote> Not by giving a kid a video " "camera and … saying, <quote>Let's go have fun with the video camera " "and make a little movie.</quote> 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><part><chapter><blockquote><para> #: freeculture.xml:2269 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, " "<quote>I need to explain this and I really need to write something.</quote> " "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><part><chapter><blockquote><para> #: freeculture.xml:2276 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><part><chapter><indexterm><primary> #: freeculture.xml:2288 freeculture.xml:2350 freeculture.xml:6115 msgid "September 11, 2001, terrorist attacks of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2289 msgid "World Trade Center" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2290 freeculture.xml:6035 msgid "news coverage" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2292 msgid "" "<emphasis role='strong'>When two planes</emphasis> 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><part><chapter><para> #: freeculture.xml:2304 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 <quote>balance,</quote> " "and seriousness. This was news choreographed in the way we have increasingly " "come to expect it, <quote>news as entertainment,</quote> even if the " "entertainment is tragedy." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:2311 freeculture.xml:8746 freeculture.xml:8968 msgid "ABC" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2312 msgid "CBS" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2313 msgid "Cyber Rights (Godwin)" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2314 msgid "Godwin, Mike" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2315 freeculture.xml:2483 msgid "news events on" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2317 msgid "" "But in addition to this produced news about the <quote>tragedy of September " "11,</quote> 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 <citetitle>Cyber " "Rights</citetitle>, 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><part><chapter><para> #: freeculture.xml:2332 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 <quote>Just Think!</quote> bus, the visual images could be mixed with " "sound or text." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2342 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><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:2351 freeculture.xml:2447 freeculture.xml:2586 msgid "blogs (Web-logs)" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2352 freeculture.xml:2449 msgid "blogs on" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2353 freeculture.xml:2450 msgid "Web-logs (blogs)" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2355 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 <citetitle>Jerry " "Springer</citetitle>, available anywhere in the world." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2364 freeculture.xml:2433 msgid "political discourse" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2365 msgid "public discourse conducted on" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2367 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2381 msgid "elections" msgstr "" #. PAGE BREAK 55 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2384 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2397 msgid "Tocqueville, Alexis de" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2398 msgid "public discourse in" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2399 msgid "jury system" msgstr "" #. f15 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2416 msgid "" "See, for example, Alexis de Tocqueville, <citetitle>Democracy in " "America</citetitle>, bk. 1, trans. Henry Reeve (New York: Bantam Books, " "2000), ch. 16." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2401 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 <quote>Democracy in America.</quote> 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 " "<quote>right</quote> result; they tried to persuade each other of the " "<quote>right</quote> 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><part><chapter><para><footnote><para> #: freeculture.xml:2426 msgid "" "Bruce Ackerman and James Fishkin, <quote>Deliberation Day,</quote> " "<citetitle>Journal of Political Philosophy</citetitle> 10 (2) (2002): 129." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2422 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 <quote>democratic deliberation</quote> to occur." msgstr "" #. f17 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2442 msgid "" "Cass Sunstein, <citetitle>Republic.com</citetitle> (Princeton: Princeton " "University Press, 2001), 65–80, 175, 182, 183, 192." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2435 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2448 msgid "e-mail" msgstr "" #. PAGE BREAK 56 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2455 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><part><chapter><para> #: freeculture.xml:2466 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><part><chapter><indexterm><primary> #: freeculture.xml:2473 msgid "Dean, Howard" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2475 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." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2480 msgid "Lott, Trent" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2481 msgid "Thurmond, Strom" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2482 msgid "blog pressure on" msgstr "" #. f18 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2496 msgid "" "Noah Shachtman, <quote>With Incessant Postings, a Pundit Stirs the " "Pot,</quote> <citetitle>New York Times</citetitle>, 16 January 2003, G5." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2485 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 " "<quote>misspoke</quote> 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 <quote>misspeaking</quote> 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\"/>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2500 freeculture.xml:2534 msgid "commercial imperatives of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2502 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><part><chapter><indexterm><secondary> #: freeculture.xml:2509 msgid "peer-generated rankings on" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2511 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><part><chapter><indexterm><primary> #: freeculture.xml:2520 msgid "journalism" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2521 msgid "Winer, Dave" msgstr "" #. PAGE BREAK 57 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2523 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 <quote>conflict of interest.</quote> <quote>I think " "you have to take the conflict of interest</quote> out of journalism, Winer " "told me. <quote>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.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:2533 freeculture.xml:2583 msgid "CNN" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:2535 freeculture.xml:2584 freeculture.xml:5977 msgid "Iraq war" msgstr "" #. f19 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2544 msgid "Telephone interview with David Winer, 16 April 2003." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2538 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 <emphasis>they</emphasis> were writing " "<quote>the story.</quote>)" msgstr "" #. f20 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2564 msgid "" "John Schwartz, <quote>Loss of the Shuttle: The Internet; A Wealth of " "Information Online,</quote> <citetitle>New York Times</citetitle>, 2 " "February 2003, A28; Staci D. Kramer, <quote>Shuttle Disaster Coverage Mixed, " "but Strong Overall,</quote> Online Journalism Review, 2 February 2003, " "available at <ulink url=\"http://free-culture.cc/notes/\">link #10</ulink>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2556 msgid "" "Blog space gives amateurs a way to enter the " "debate—<quote>amateur</quote> 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 <quote>triangulate,</quote> as Winer puts " "it, the truth. Blogs, Winer says, are <quote>communicating directly with our " "constituency, and the middle man is out of it</quote>—with all the " "benefits, and costs, that might entail." msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:2585 msgid "Olafson, Steve" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2583 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> <placeholder " "type=\"indexterm\" id=\"3\"/> See Michael Falcone, <quote>Does an Editor's " "Pencil Ruin a Web Log?</quote> <citetitle>New York Times</citetitle>, 29 " "September 2003, C4. (<quote>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 " "<citetitle>Houston Chronicle</citetitle> 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.</quote>)" msgstr "" #. PAGE BREAK 58 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2576 msgid "" "Winer is optimistic about the future of journalism infected with " "blogs. <quote>It's going to become an essential skill,</quote> Winer " "predicts, for public figures and increasingly for private figures as " "well. It's not clear that <quote>journalism</quote> 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. <quote>A lot of what we are doing now is warm-up " "exercises,</quote> 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, <quote>we will be the last thing that gets shut " "down.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2607 msgid "" "This speech affects democracy. Winer thinks that happens because <quote>you " "don't have to work for somebody who controls, [for] a gatekeeper.</quote> " "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><part><chapter><section><indexterm><primary> #: freeculture.xml:2628 freeculture.xml:6824 msgid "Brown, John Seely" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2631 msgid "" "<emphasis role='strong'>John Seely Brown</emphasis> is the chief scientist " "of the Xerox Corporation. His work, as his Web site describes it, is " "<quote>human learning and … the creation of knowledge ecologies for " "creating … innovation.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2637 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><part><chapter><para> #: freeculture.xml:2644 msgid "" "As Brown believes, we learn by tinkering. When <quote>a lot of us grew " "up,</quote> he explains, that tinkering was done <quote>on motorcycle " "engines, lawnmower engines, automobiles, radios, and so on.</quote> 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 <quote>free collage,</quote> as Brown calls it. Many get to " "add to or transform the tinkering of many others." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2657 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><part><chapter><para> #: freeculture.xml:2664 msgid "" "This opportunity creates a <quote>completely new kind of learning " "platform,</quote> as Brown describes. <quote>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.</quote> Each effort is a kind of " "apprenticeship. <quote>Open source becomes a major apprenticeship " "platform.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2672 msgid "" "In this process, <quote>the concrete things you tinker with are abstract. " "They are code.</quote> Kids are <quote>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.</quote> The more you improve, the more you " "learn." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2681 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, " "<quote>the Web [is] the first medium that truly honors multiple forms of " "intelligence.</quote> Earlier technologies, such as the typewriter or word " "processors, helped amplify text. But the Web amplifies much more than " "text. <quote>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.</quote>" msgstr "" #. PAGE BREAK 60 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2694 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><part><chapter><para> #: freeculture.xml:2702 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><part><chapter><para><footnote><para> #: freeculture.xml:2718 msgid "" "See, for example, Edward Felten and Andrew Appel, <quote>Technological " "Access Control Interferes with Noninfringing Scholarship,</quote> " "<citetitle>Communications of the Association for Computer " "Machinery</citetitle> 43 (2000): 9." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2711 msgid "" "These restrictions have become the focus of researchers and scholars. " "Professor Ed Felten of Princeton (whom we'll see more of in chapter <xref " "xrefstyle=\"select: labelnumber\" linkend=\"property-i\"/>) has developed a " "powerful argument in favor of the <quote>right to tinker</quote> 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><part><chapter><para> #: freeculture.xml:2726 msgid "" "<quote>This is where education in the twenty-first century is going,</quote> " "Brown explains. We need to <quote>understand how kids who grow up digital " "think and want to learn.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2731 msgid "" "<quote>Yet,</quote> as Brown continued, and as the balance of this book will " "evince, <quote>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.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2738 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><part><chapter><indexterm><primary> #: freeculture.xml:2743 freeculture.xml:5978 freeculture.xml:6019 freeculture.xml:11635 freeculture.xml:11893 msgid "Kahle, Brewster" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2746 msgid "" "<quote>No way to run a culture,</quote> as Brewster Kahle, whom we'll meet " "in chapter <xref xrefstyle=\"select: labelnumber\" linkend=\"collectors\"/>, " "quipped to me in a rare moment of despondence." msgstr "" #. type: Content of: <book><part><chapter><title> #: freeculture.xml:2753 msgid "Chapter Three: Catalogs" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:2754 freeculture.xml:2797 freeculture.xml:9714 msgid "Jordan, Jesse" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2755 msgid "RPI" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2755 freeculture.xml:2756 freeculture.xml:2757 msgid "Rensselaer Polytechnic Institute (RPI)" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2757 msgid "computer network search engine of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2758 msgid "search engines" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2759 msgid "university computer networks, p2p sharing on" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2760 msgid "search engines used on" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2762 msgid "" "<emphasis role='strong'>In the fall</emphasis> 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><part><chapter><para> #: freeculture.xml:2770 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><part><chapter><para> #: freeculture.xml:2778 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2784 freeculture.xml:2839 msgid "Google" msgstr "" #. PAGE BREAK 62 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2786 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 <quote>intranet</quote> 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><indexterm><primary> #: freeculture.xml:2798 freeculture.xml:3728 freeculture.xml:3730 freeculture.xml:3731 freeculture.xml:5566 freeculture.xml:8274 freeculture.xml:13690 freeculture.xml:13759 msgid "Microsoft" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2798 msgid "network file system of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2800 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><part><chapter><para> #: freeculture.xml:2810 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><part><chapter><para> #: freeculture.xml:2823 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><part><chapter><para> #: freeculture.xml:2831 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><part><chapter><indexterm><secondary> #: freeculture.xml:2840 msgid "tinkering as means of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2842 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:2856 freeculture.xml:9712 freeculture.xml:9991 msgid "in recording industry" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2857 msgid "against student file sharing" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:2858 freeculture.xml:2956 freeculture.xml:3219 freeculture.xml:3348 freeculture.xml:4317 freeculture.xml:4318 freeculture.xml:4319 freeculture.xml:6250 freeculture.xml:9992 freeculture.xml:10411 freeculture.xml:10412 freeculture.xml:10413 freeculture.xml:10569 msgid "recording industry" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:2858 freeculture.xml:9992 msgid "copyright infringement lawsuits of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:2859 freeculture.xml:2888 freeculture.xml:2957 freeculture.xml:9993 freeculture.xml:10414 freeculture.xml:10415 freeculture.xml:10567 msgid "Recording Industry Association of America (RIAA)" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:2859 freeculture.xml:9993 msgid "copyright infringement lawsuits filed by" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2862 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><part><chapter><para> #: freeculture.xml:2871 msgid "" "<quote>It was absurd,</quote> he told me. <quote>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</quote>—again, a <emphasis>search engine</emphasis>, 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:2884 freeculture.xml:9711 freeculture.xml:9990 msgid "exaggerated claims of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2885 msgid "statutory damages of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2886 msgid "individual defendants intimidated by" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2887 msgid "statutory damages" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:2888 msgid "intimidation tactics of" msgstr "" #. PAGE BREAK 64 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2890 msgid "" "But the RIAA branded Jesse a pirate. They claimed he operated a network and " "had therefore <quote>willfully</quote> violated copyright laws. They " "demanded that he pay them the damages for his wrong. For cases of " "<quote>willful infringement,</quote> the Copyright Act specifies something " "lawyers call <quote>statutory damages.</quote> 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2900 msgid "Michigan Technical University" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2901 msgid "Princeton University" msgstr "" #. f1 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2915 msgid "" "Tim Goral, <quote>Recording Industry Goes After Campus P-2-P Networks: Suit " "Alleges $97.8 Billion in Damages,</quote> <citetitle>Professional Media " "Group LCC</citetitle> 6 (2003): 5, available at 2003 WL 55179443." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2903 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 <quote>damages</quote> 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 " "<emphasis>billion</emphasis>—six times the <emphasis>total</emphasis> " "profit of the film industry in 2001.<placeholder type=\"footnote\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2922 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><part><chapter><indexterm><primary> #: freeculture.xml:2928 msgid "Oppenheimer, Matt" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2930 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, <quote>You don't want to " "pay another visit to a dentist like me.</quote>) And throughout, the RIAA " "insisted it would not settle the case until it took every penny Jesse had " "saved." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:2940 msgid "legal system, attorney costs in" msgstr "" #. PAGE BREAK 65 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2942 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><part><chapter><para> #: freeculture.xml:2952 msgid "" "So Jesse faced a mafia-like choice: $250,000 and a chance at winning, or " "$12,000 and a settlement." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:2955 freeculture.xml:3349 freeculture.xml:4310 freeculture.xml:5575 freeculture.xml:5624 freeculture.xml:10306 freeculture.xml:10407 freeculture.xml:10568 freeculture.xml:10591 freeculture.xml:15350 freeculture.xml:15415 msgid "artists" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:2955 freeculture.xml:3349 freeculture.xml:4310 freeculture.xml:10306 freeculture.xml:10407 freeculture.xml:10568 freeculture.xml:10591 freeculture.xml:15350 freeculture.xml:15415 msgid "recording industry payments to" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:2956 freeculture.xml:4317 freeculture.xml:10411 freeculture.xml:10569 msgid "artist remuneration in" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:2957 freeculture.xml:10415 msgid "lobbying power of" msgstr "" #. f2 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2967 msgid "" "Occupational Employment Survey, U.S. Dept. of Labor (2001) " "(27–2042—Musicians and Singers). See also National Endowment for " "the Arts, <citetitle>More Than One in a Blue Moon</citetitle> (2000)." msgstr "" #. f3 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:2975 msgid "" "Douglas Lichtman makes a related point in <quote>KaZaA and " "Punishment,</quote> <citetitle>Wall Street Journal</citetitle>, 10 September " "2003, A24." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:2959 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><part><chapter><para> #: freeculture.xml:2982 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><part><chapter><blockquote><para> #: freeculture.xml:2989 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><part><chapter><para> #: freeculture.xml:2996 msgid "" "Jesse's parents betray a certain pride in their reluctant activist. As his " "father told me, Jesse <quote>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.</quote>" msgstr "" #. type: Content of: <book><part><chapter><title> #: freeculture.xml:3011 msgid "Chapter Four: <quote>Pirates</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:3012 msgid "in development of content industry" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:3015 msgid "" "<emphasis role='strong'>If <quote>piracy</quote> means</emphasis> using the " "creative property of others without their permission—if <quote>if " "value, then right</quote> is true—then the history of the content " "industry is a history of piracy. Every important sector of <quote>big " "media</quote> 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><part><chapter><section><title> #: freeculture.xml:3026 msgid "Film" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3027 freeculture.xml:3028 msgid "Hollywood film industry" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:3027 freeculture.xml:7811 freeculture.xml:15454 msgid "film industry" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:3029 freeculture.xml:7268 freeculture.xml:11195 freeculture.xml:11196 freeculture.xml:13332 freeculture.xml:13814 msgid "patents" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3029 msgid "on film technology" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3033 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> I am grateful to Peter DiMauro " "for pointing me to this extraordinary history. See also Siva Vaidhyanathan, " "<citetitle>Copyrights and Copywrongs</citetitle>, 87–93, which details " "Edison's <quote>adventures</quote> with copyright and patent." msgstr "" #. PAGE BREAK 67 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3031 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 " "<quote>trust,</quote> 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><part><chapter><section><para> #: freeculture.xml:3049 msgid "As one commentator tells one part of the story," msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:3053 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 "" #. type: Content of: <book><part><chapter><section><blockquote><indexterm><primary> #: freeculture.xml:3061 msgid "Fox, William" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><indexterm><primary> #: freeculture.xml:3062 msgid "General Film Company" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:3063 freeculture.xml:3367 freeculture.xml:4550 freeculture.xml:10457 msgid "Picker, Randal C." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:3087 freeculture.xml:4549 freeculture.xml:10174 freeculture.xml:10287 msgid "broadcast flag" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:3076 msgid "" "J. A. Aberdeen, <citetitle>Hollywood Renegades: The Society of Independent " "Motion Picture Producers</citetitle> (Cobblestone Entertainment, 2000) and " "expanded texts posted at <quote>The Edison Movie Monopoly: The Motion " "Picture Patents Company vs. the Independent Outlaws,</quote> 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, <quote>From Edison " "to the Broadcast Flag: Mechanisms of Consent and Refusal and the " "Propertization of Copyright</quote> (September 2002), University of Chicago " "Law School, James M. Olin Program in Law and Economics, Working Paper " "No. 159. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:3065 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\"/>" msgstr "" #. f3 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3099 msgid "" "Marc Wanamaker, <quote>The First Studios,</quote> <citetitle>The Silents " "Majority</citetitle>, archived at <ulink " "url=\"http://free-culture.cc/notes/\">link #12</ulink>." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3092 msgid "" "The Napsters of those days, the <quote>independents,</quote> were companies " "like Fox. And no less than today, these independents were vigorously " "resisted. <quote>Shooting was disrupted by machinery stolen, and " "<quote>accidents</quote> resulting in loss of negatives, equipment, " "buildings and sometimes life and limb frequently " "occurred.</quote><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><part><chapter><section><para> #: freeculture.xml:3110 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 <quote>limited</quote> 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><part><chapter><section><title> #: freeculture.xml:3122 msgid "Recorded Music" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3123 freeculture.xml:4314 msgid "on music recordings" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3125 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><part><chapter><section><indexterm><primary> #: freeculture.xml:3128 msgid "Fourneaux, Henri" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3129 msgid "Russel, Phil" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3131 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 <quote>Happy " "Mose,</quote> 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><part><chapter><section><indexterm><primary> #: freeculture.xml:3140 freeculture.xml:3282 msgid "Beatles" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3142 msgid "" "But what if I wanted to record <quote>Happy Mose,</quote> 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 <quote>public " "performance</quote> 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 "" #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para><indexterm><primary> #: freeculture.xml:3160 freeculture.xml:3167 freeculture.xml:3184 msgid "Kittredge, Alfred" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3163 msgid "" "The composers (and publishers) were none too happy about this capacity to " "pirate. As South Dakota senator Alfred Kittredge put it, <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:3178 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 <citetitle>Legislative History of the Copyright " "Act</citetitle>, E. Fulton Brylawski and Abe Goldman, eds. (South " "Hackensack, N.J.: Rothman Reprints, 1976). <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:3171 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3189 msgid "Sousa, John Philip" msgstr "" #. f5 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3195 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><part><chapter><section><para><footnote><para> #: freeculture.xml:3201 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><part><chapter><section><para><footnote><para> #: freeculture.xml:3208 msgid "" "To Amend and Consolidate the Acts Respecting Copyright, 23 (statement of " "John Philip Sousa, composer)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3191 msgid "" "The innovators who developed the technology to record other people's works " "were <quote>sponging upon the toil, the work, the talent, and genius of " "American composers,</quote><placeholder type=\"footnote\" id=\"0\"/> and the " "<quote>music publishing industry</quote> was thereby <quote>at the complete " "mercy of this one pirate.</quote><placeholder type=\"footnote\" id=\"1\"/> " "As John Philip Sousa put it, in as direct a way as possible, <quote>When " "they make money out of my pieces, I want a share of it.</quote><placeholder " "type=\"footnote\" id=\"2\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3213 msgid "American Graphophone Company" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3214 msgid "player pianos" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:3216 freeculture.xml:3217 freeculture.xml:4312 freeculture.xml:4313 freeculture.xml:4398 freeculture.xml:4399 freeculture.xml:7036 freeculture.xml:7129 freeculture.xml:7244 freeculture.xml:7245 freeculture.xml:10408 freeculture.xml:10409 freeculture.xml:10410 freeculture.xml:11190 freeculture.xml:11252 freeculture.xml:11464 freeculture.xml:11539 freeculture.xml:12209 freeculture.xml:12298 freeculture.xml:12368 freeculture.xml:12370 msgid "Congress, U.S." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3216 freeculture.xml:4312 freeculture.xml:4398 freeculture.xml:7129 freeculture.xml:7244 freeculture.xml:10408 msgid "on copyright laws" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3217 freeculture.xml:4313 freeculture.xml:10410 msgid "on recording industry" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3218 freeculture.xml:4315 freeculture.xml:10233 msgid "statutory licenses in" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3219 msgid "statutory license system in" msgstr "" #. f8 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3229 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><part><chapter><section><para><footnote><para> #: freeculture.xml:3240 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><part><chapter><section><para> #: freeculture.xml:3221 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 <quote>it is perfectly demonstrable that the introduction of " "automatic music players has not deprived any composer of anything he had " "before their introduction.</quote> 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 <quote>to consider first the " "interest of [the public], whom they represent, and whose servants they " "are.</quote> <quote>All talk about <quote>theft,</quote></quote> the general " "counsel of the American Graphophone Company wrote, <quote>is the merest " "claptrap, for there exists no property in ideas musical, literary or " "artistic, except as defined by statute.</quote><placeholder " "type=\"footnote\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3245 msgid "cover songs" msgstr "" #. PAGE BREAK 70 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3247 msgid "" "The law soon resolved this battle in favor of the composer " "<emphasis>and</emphasis> the recording artist. Congress amended the law to " "make sure that composers would be paid for the <quote>mechanical " "reproductions</quote> 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><part><chapter><section><indexterm><primary> #: freeculture.xml:3261 msgid "compulsory license" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3262 freeculture.xml:4320 freeculture.xml:10232 msgid "statutory licenses" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3264 msgid "" "American law ordinarily calls this a <quote>compulsory license,</quote> but " "I will refer to it as a <quote>statutory license.</quote> 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><section><section><para><indexterm><primary> #: freeculture.xml:3271 freeculture.xml:15046 msgid "Grisham, John" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3273 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." msgstr "" #. f10 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3298 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 " "<citetitle>Legislative History of the 1909 Copyright Act</citetitle>, " "E. Fulton Brylawski and Abe Goldman, eds. (South Hackensack, N.J.: Rothman " "Reprints, 1976)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3284 msgid "" "But the law governing recordings gives recording artists less. And thus, in " "effect, the law <emphasis>subsidizes</emphasis> 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\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3309 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><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:3331 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><part><chapter><section><blockquote><para> #: freeculture.xml:3316 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><part><chapter><section><para> #: freeculture.xml:3342 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><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:3347 freeculture.xml:4513 msgid "Radio" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3348 freeculture.xml:4319 freeculture.xml:10412 msgid "radio broadcast and" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3351 msgid "Radio was also born of piracy." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:3366 msgid "Hand, Learned" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3357 msgid "" "See 17 <citetitle>United States Code</citetitle>, sections 106 and 110. At " "the beginning, record companies printed <quote>Not Licensed for Radio " "Broadcast</quote> 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 <citetitle>RCA Manufacturing " "Co</citetitle>. v. <citetitle>Whiteman</citetitle>, 114 F. 2d 86 (2nd " "Cir. 1940). See also Randal C. Picker, <quote>From Edison to the Broadcast " "Flag: Mechanisms of Consent and Refusal and the Propertization of " "Copyright,</quote> <citetitle>University of Chicago Law Review</citetitle> " "70 (2003): 281. <placeholder type=\"indexterm\" id=\"0\"/> <placeholder " "type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3354 msgid "" "When a radio station plays a record on the air, that constitutes a " "<quote>public performance</quote> 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:3373 freeculture.xml:4316 freeculture.xml:10309 msgid "music recordings played on" msgstr "" #. type: Content of: <book><part><chapter><para><indexterm><primary> #: freeculture.xml:3385 freeculture.xml:9466 freeculture.xml:9945 freeculture.xml:13084 msgid "Lovett, Lyle" msgstr "" #. PAGE BREAK 72 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3375 msgid "" "But when the radio station plays a record, it is not only performing a copy " "of the <emphasis>composer's</emphasis> work. The radio station is also " "performing a copy of the <emphasis>recording artist's</emphasis> work. It's " "one thing to have <quote>Happy Birthday</quote> 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><part><chapter><section><para> #: freeculture.xml:3390 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><part><chapter><para><indexterm><primary> #: freeculture.xml:3397 freeculture.xml:3914 freeculture.xml:6545 freeculture.xml:6561 msgid "Madonna" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3399 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><part><chapter><section><para> #: freeculture.xml:3405 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 <quote>protected</quote> " "right. The radio station thus gets to <emphasis>pirate</emphasis> the value " "of Madonna's work without paying her anything." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3418 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><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:3428 freeculture.xml:4519 msgid "Cable TV" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:3429 freeculture.xml:4334 freeculture.xml:8639 freeculture.xml:8679 freeculture.xml:15450 msgid "cable television" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3431 msgid "Cable TV was also born of a kind of piracy." msgstr "" #. PAGE BREAK 73 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3434 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><part><chapter><section><indexterm><primary> #: freeculture.xml:3444 msgid "Anello, Douglas" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3445 msgid "Burdick, Quentin" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:3446 freeculture.xml:3457 msgid "Hyde, Rosel H." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3452 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). <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. f14 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3464 msgid "" "Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello, " "general counsel of the National Association of Broadcasters)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3448 msgid "" "Broadcasters and copyright owners were quick to attack this theft. Rosel " "Hyde, chairman of the FCC, viewed the practice as a kind of <quote>unfair " "and potentially destructive competition.</quote><placeholder " "type=\"footnote\" id=\"0\"/> There may have been a <quote>public " "interest</quote> 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, <quote>Does public interest dictate that " "you use somebody else's property?</quote><placeholder type=\"footnote\" " "id=\"1\"/> As another broadcaster put it," msgstr "" #. f15 #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:3475 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><part><chapter><section><blockquote><para> #: freeculture.xml:3471 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><part><chapter><section><para> #: freeculture.xml:3481 msgid "Again, the demand of the copyright holders seemed reasonable enough:" msgstr "" #. f16 #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:3490 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><part><chapter><section><blockquote><para> #: freeculture.xml:3485 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 "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:3496 freeculture.xml:3504 msgid "Heston, Charlton" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3502 msgid "" "Copyright Law Revision—CATV, 209 (statement of Charlton Heston, " "president of the Screen Actors Guild). <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3498 msgid "" "These were <quote>free-ride[rs],</quote> Screen Actor's Guild president " "Charlton Heston said, who were <quote>depriving actors of " "compensation.</quote><placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3509 msgid "" "But again, there was another side to the debate. As Assistant Attorney " "General Edwin Zimmerman put it," msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para><indexterm><primary> #: freeculture.xml:3525 freeculture.xml:3527 msgid "Zimmerman, Edwin" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:3523 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><part><chapter><section><blockquote><para> #: freeculture.xml:3514 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><part><chapter><section><para> #: freeculture.xml:3531 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><part><chapter><section><para> #: freeculture.xml:3535 msgid "" "It took Congress almost thirty years before it resolved the question of " "whether cable companies had to pay for the content they " "<quote>pirated.</quote> 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 <quote>piracy</quote> of the value created " "by broadcasters' content." msgstr "" #. f19 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3554 msgid "" "See, for example, National Music Publisher's Association, <citetitle>The " "Engine of Free Expression: Copyright on the Internet—The Myth of Free " "Information</citetitle>, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #13</ulink>. <quote>The threat of " "piracy—the use of someone else's creative work without permission or " "compensation—has grown with the Internet.</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3549 msgid "" "<emphasis role='strong'>These separate stories</emphasis> sing a common " "theme. If <quote>piracy</quote> 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 <emphasis>every</emphasis> 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><part><chapter><title> #: freeculture.xml:3571 msgid "Chapter Five: <quote>Piracy</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:3573 msgid "" "<emphasis role='strong'>There is piracy</emphasis> 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><part><chapter><para> #: freeculture.xml:3581 msgid "" "But as well as copy-shop piracy, there is another kind of " "<quote>taking</quote> 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 <quote>piracy,</quote> 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><part><chapter><section><title> #: freeculture.xml:3591 msgid "Piracy I" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:3592 freeculture.xml:3672 freeculture.xml:3722 freeculture.xml:15452 msgid "Asia, commercial piracy in" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:3593 freeculture.xml:4052 freeculture.xml:9946 freeculture.xml:10809 freeculture.xml:14841 freeculture.xml:15434 msgid "CDs" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3593 msgid "foreign piracy of" msgstr "" #. f1 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3601 msgid "" "See IFPI (International Federation of the Phonographic Industry), " "<citetitle>The Recording Industry Commercial Piracy Report 2003</citetitle>, " "July 2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#14</ulink>. See also Ben Hunt, <quote>Companies Warned on Music Piracy " "Risk,</quote> <citetitle>Financial Times</citetitle>, 14 February 2003, 11." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3595 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><part><chapter><section><para> #: freeculture.xml:3611 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><part><chapter><section><para> #: freeculture.xml:3617 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><part><chapter><section><para> #: freeculture.xml:3626 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><part><chapter><section><para> #: freeculture.xml:3637 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><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:3665 msgid "agricultural patents" msgstr "" #. type: Content of: <book><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:3666 freeculture.xml:13377 freeculture.xml:13869 freeculture.xml:13876 msgid "Drahos, Peter" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3650 msgid "" "See Peter Drahos with John Braithwaite, Information Feudalism: " "<citetitle>Who Owns the Knowledge Economy?</citetitle> (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\"/> <placeholder " "type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3645 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><section><section><para><footnote><para><indexterm><primary> #: freeculture.xml:3687 freeculture.xml:3971 freeculture.xml:15600 msgid "Liebowitz, Stan" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3680 msgid "" "For an analysis of the economic impact of copying technology, see Stan " "Liebowitz, <citetitle>Rethinking the Network Economy</citetitle> (New York: " "Amacom, 2002), 144–90. <quote>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.</quote> Ibid., 149. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3674 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><part><chapter><section><para> #: freeculture.xml:3691 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, <quote>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?</quote> 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><part><chapter><section><para> #: freeculture.xml:3705 msgid "" "This argument is still very weak. However, although copyright is a property " "right of a very special sort, it <emphasis>is</emphasis> 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 " "<quote>take</quote> 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 <quote>property</quote> " "means." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:3723 freeculture.xml:15453 msgid "in Asia" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3724 msgid "open-source software" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:3724 freeculture.xml:3725 freeculture.xml:13688 freeculture.xml:14280 msgid "free software/open-source software (FS/OSS)" msgstr "" #. type: Content of: <book><chapter><section><section><para><indexterm><primary> #: freeculture.xml:3726 freeculture.xml:3756 freeculture.xml:12140 freeculture.xml:13703 freeculture.xml:14336 msgid "GNU/Linux operating system" msgstr "" #. type: Content of: <book><chapter><section><section><para><indexterm><primary> #: freeculture.xml:3727 freeculture.xml:3757 freeculture.xml:12142 freeculture.xml:13704 freeculture.xml:14337 msgid "Linux operating system" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3728 msgid "competitive strategies of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3729 msgid "Windows" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3730 msgid "international software piracy of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3731 msgid "Windows operating system of" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3733 msgid "" "Finally, we could try to excuse this piracy with the argument that the " "piracy actually helps the copyright owner. When the Chinese " "<quote>steal</quote> 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." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:3745 freeculture.xml:4808 freeculture.xml:5032 freeculture.xml:6529 freeculture.xml:6605 freeculture.xml:6742 freeculture.xml:7159 freeculture.xml:14368 msgid "law" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:3745 freeculture.xml:14368 msgid "databases of case reports in" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3747 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><part><chapter><section><indexterm><primary> #: freeculture.xml:3754 msgid "Netscape" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:3755 msgid "Internet Explorer" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3759 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><part><chapter><section><para> #: freeculture.xml:3773 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><part><chapter><section><para> #: freeculture.xml:3783 msgid "" "But as the examples from the four chapters that introduced this part " "suggest, even if some piracy is plainly wrong, not all <quote>piracy</quote> " "is. Or at least, not all <quote>piracy</quote> is wrong if that term is " "understood in the way it is increasingly used today. Many kinds of " "<quote>piracy</quote> 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 <quote>piracy</quote> in that sense of the " "term." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3792 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><part><chapter><section><para> #: freeculture.xml:3798 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><part><chapter><section><para> #: freeculture.xml:3804 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><part><chapter><section><title> #: freeculture.xml:3810 msgid "Piracy II" msgstr "" #. f4 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3815 msgid "" "<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 " "Eng. Rep. 1274 (1777)." msgstr "" #. PAGE BREAK 80 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3812 msgid "" "The key to the <quote>piracy</quote> that the law aims to quash is a use " "that <quote>rob[s] the author of [his] profit.</quote><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><part><chapter><section><para><indexterm><primary> #: freeculture.xml:3824 msgid "Fanning, Shawn" msgstr "" #. type: Content of: <book><part><chapter><section><para><indexterm><primary> #: freeculture.xml:3843 freeculture.xml:8877 msgid "Christensen, Clayton M." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3833 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> See Clayton M. Christensen, " "<citetitle>The Innovator's Dilemma: The Revolutionary National Bestseller " "That Changed the Way We Do Business</citetitle> (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, " "<citetitle>Future</citetitle>, 89–92, 139. <placeholder " "type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3824 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> <placeholder " "type=\"indexterm\" id=\"3\"/> 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=\"4\"/>), Shawn Fanning and crew had simply put " "together components that had been developed independently." msgstr "" #. type: Content of: <book><part><chapter><section><para><indexterm><primary> #: freeculture.xml:3848 msgid "Kazaa" msgstr "" #. type: Content of: <book><part><chapter><section><para><indexterm><secondary> #: freeculture.xml:3849 msgid "number of registrations on" msgstr "" #. type: Content of: <book><part><chapter><section><para><indexterm><secondary> #: freeculture.xml:3850 msgid "replacement of" msgstr "" #. f6 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3856 msgid "" "See Carolyn Lochhead, <quote>Silicon Valley Dream, Hollywood " "Nightmare,</quote> <citetitle>San Francisco Chronicle</citetitle>, 24 " "September 2002, A1; <quote>Rock 'n' Roll Suicide,</quote> <citetitle>New " "Scientist</citetitle>, 6 July 2002, 42; Benny Evangelista, <quote>Napster " "Names CEO, Secures New Financing,</quote> <citetitle>San Francisco " "Chronicle</citetitle>, 23 May 2003, C1; <quote>Napster's Wake-Up " "Call,</quote> <citetitle>Economist</citetitle>, 24 June 2000, 23; John " "Naughton, <quote>Hollywood at War with the Internet</quote> (London) " "<citetitle>Times</citetitle>, 26 July 2002, 18." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3848 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> 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=\"3\"/> 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><part><chapter><section><para><footnote><para> #: freeculture.xml:3879 msgid "" "See Ipsos-Insight, <citetitle>TEMPO: Keeping Pace with Online Music " "Distribution</citetitle> (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><part><chapter><section><para><footnote><para> #: freeculture.xml:3888 msgid "" "Amy Harmon, <quote>Industry Offers a Carrot in Online Music Fight,</quote> " "<citetitle>New York Times</citetitle>, 6 June 2003, A1." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3873 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 <citetitle>The New York Times</citetitle> " "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 <quote>taken</quote> 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><part><chapter><section><para> #: freeculture.xml:3897 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3905 msgid "four types of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:3906 msgid "range of content on" msgstr "" #. PAGE BREAK 81 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3909 msgid "" "File sharers share different kinds of content. We can divide these different " "kinds into four types." msgstr "" #. A. #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:3917 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." msgstr "" #. B. #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:3927 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><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:3938 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 <quote>recalling</quote> 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><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:3955 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><part><chapter><section><para> #: freeculture.xml:3962 msgid "How do these different types of sharing balance out?" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3970 msgid "" "See Liebowitz, <citetitle>Rethinking the Network Economy</citetitle>, " "148–49. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3965 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><part><chapter><section><para> #: freeculture.xml:3981 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 <quote>theft</quote> that is " "<quote>devastating</quote> the industry." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:3988 freeculture.xml:3997 freeculture.xml:4367 freeculture.xml:8434 freeculture.xml:8463 freeculture.xml:10230 freeculture.xml:15158 msgid "cassette recording" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:3988 freeculture.xml:4367 freeculture.xml:8434 freeculture.xml:8463 freeculture.xml:10230 freeculture.xml:10231 freeculture.xml:15158 freeculture.xml:15159 msgid "VCRs" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:3998 freeculture.xml:4537 msgid "DAT (digital audio tape)" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:3997 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/> See Cap Gemini Ernst & Young, <citetitle>Technology Evolution " "and the Music Industry's Business Model Crisis</citetitle> (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 <quote>Home taping is " "killing music.</quote> 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, " "<citetitle>Copyright and Home Copying: Technology Challenges the " "Law</citetitle>, OTA-CIT-422 (Washington, D.C.: U.S. Government Printing " "Office, October 1989), 145–56." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:3990 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, " "<quote>Rather than exploiting this new, popular technology, the labels " "fought it.</quote><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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:4016 msgid "MTV" msgstr "" #. f11 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4027 msgid "U.S. Congress, <citetitle>Copyright and Home Copying</citetitle>, 4." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4018 msgid "" "Yet soon thereafter, and before Congress was given an opportunity to enact " "regulation, MTV was launched, and the industry had a record " "turnaround. <quote>In the end,</quote> Cap Gemini concludes, <quote>the " "<quote>crisis</quote> … 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.</quote><placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4032 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 " "<emphasis>how</emphasis> harmful type A sharing is, and how beneficial the " "other types of sharing are." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4042 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 " "<quote>net harm</quote> 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 <emphasis>static</emphasis> reason to resist them." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4052 msgid "sales levels of" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4054 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><part><chapter><section><para><footnote><para> #: freeculture.xml:4063 msgid "" "See Recording Industry Association of America, <citetitle>2002 Yearend " "Statistics</citetitle>, 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, <citetitle>Some Facts About Music Piracy</citetitle>, 25 June 2003, " "available at <ulink url=\"http://free-culture.cc/notes/\">link #16</ulink>: " "<quote>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).</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:4090 msgid "Black, Jane" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4087 msgid "" "Jane Black, <quote>Big Music's Broken Record,</quote> 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><part><chapter><section><para> #: freeculture.xml:4059 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. <quote>From 1999 to " "2001, the average price of a CD rose 7.2 percent, from $13.04 to " "$14.19.</quote><placeholder type=\"footnote\" id=\"1\"/> Competition from " "other forms of media could also account for some of the decline. As Jane " "Black of <citetitle>BusinessWeek</citetitle> notes, <quote>The soundtrack to " "the film <citetitle>High Fidelity</citetitle> has a list price of " "$18.98. You could get the whole movie [on DVD] for " "$19.99.</quote><placeholder type=\"footnote\" id=\"2\"/>" msgstr "" #. PAGE BREAK 84 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4105 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><part><chapter><section><para> #: freeculture.xml:4113 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, <quote>What's the difference between downloading a " "song and stealing a CD?</quote>—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 <quote>rob[bed] the author of " "[his] profit</quote>—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 " "<quote>downloading a song and stealing a CD.</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4129 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><part><chapter><section><para><footnote><para> #: freeculture.xml:4141 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><part><chapter><section><para> #: freeculture.xml:4135 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 " "<emphasis>to the company</emphasis> to make it available." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:4154 freeculture.xml:4163 freeculture.xml:4184 freeculture.xml:4208 freeculture.xml:4732 freeculture.xml:6190 freeculture.xml:6195 freeculture.xml:6247 freeculture.xml:7230 freeculture.xml:7231 freeculture.xml:7618 freeculture.xml:7687 freeculture.xml:7975 freeculture.xml:14540 freeculture.xml:15270 freeculture.xml:15271 msgid "books" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:4154 freeculture.xml:4163 freeculture.xml:7230 freeculture.xml:15271 msgid "resales of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:4155 msgid "used record sales" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4163 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> 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, <citetitle>The Quiet Revolution: The " "Expansion of the Used Book Market</citetitle> (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, <quote>2002 Annual Survey Results,</quote> " "available at <ulink url=\"http://free-culture.cc/notes/\">link #20</ulink>." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4157 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, <emphasis>even if the content is still under " "copyright</emphasis>, 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><section><section><indexterm><secondary> #: freeculture.xml:4184 freeculture.xml:6190 freeculture.xml:6195 freeculture.xml:7231 freeculture.xml:15270 msgid "out of print" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:4185 msgid "Bernstein, Leonard" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4186 freeculture.xml:7688 freeculture.xml:7976 msgid "books on" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4188 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 <quote>Two Love Songs,</quote> 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><part><chapter><section><para> #: freeculture.xml:4201 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 "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:4208 freeculture.xml:14540 msgid "free on-line releases of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:4209 msgid "Doctorow, Cory" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:4210 msgid "Down and Out in the Magic Kingdom (Doctorow)" msgstr "" #. PAGE BREAK 86 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4212 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, <citetitle>Down and Out in the Magic " "Kingdom</citetitle>, 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 <quote>real</quote> 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><part><chapter><section><para> #: freeculture.xml:4230 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><part><chapter><section><para> #: freeculture.xml:4236 msgid "" "The point throughout is this: While the recording industry understandably " "says, <quote>This is how much we've lost,</quote> we must also ask, " "<quote>How much has society gained from p2p sharing? What are the " "efficiencies? What is the content that otherwise would be " "unavailable?</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4244 msgid "" "For unlike the piracy I described in the first section of this chapter, much " "of the <quote>piracy</quote> that file sharing enables is plainly legal and " "good. And like the piracy I described in chapter <xref xrefstyle=\"select: " "labelnumber\" linkend=\"pirates\"/>, 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><part><chapter><section><para> #: freeculture.xml:4258 msgid "" "<quote>But isn't the war just a war against illegal sharing? Isn't the " "target just what you call type A sharing?</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4261 msgid "zero tolerance in" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4262 msgid "infringing material blocked by" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4263 msgid "infringement protections in" msgstr "" #. f17 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4277 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, " "<citetitle>All the Rave: The Rise and Fall of Shawn Fanning's " "Napster</citetitle> (New York: Crown Business, 2003), 269–82." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4265 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 <quote>down to " "zero.</quote><placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4290 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><part><chapter><section><para> #: freeculture.xml:4302 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><part><chapter><section><indexterm><primary> #: freeculture.xml:4311 msgid "composers, copyright protections of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4318 msgid "copyright protections in" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:4321 msgid "composer's rights vs. producers' rights in" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4323 msgid "" "So, as we've seen, when <quote>mechanical reproduction</quote> 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 <quote>creative property</quote> 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><part><chapter><section><para> #: freeculture.xml:4336 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4344 msgid "two central goals of" msgstr "" #. PAGE BREAK 88 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4348 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 " "<emphasis>compensation</emphasis> without giving the past (broadcasters) " "control over the future (cable)." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:4366 msgid "Betamax" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:4368 freeculture.xml:8203 freeculture.xml:8347 freeculture.xml:8412 freeculture.xml:8524 msgid "Sony" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4368 msgid "Betamax technology developed by" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4370 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 <quote>record</quote> 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><part><chapter><section><para> #: freeculture.xml:4384 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 <quote>copy me</quote> 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4399 freeculture.xml:4400 msgid "on VCR technology" msgstr "" #. f18 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4409 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><part><chapter><section><para><footnote><para> #: freeculture.xml:4421 msgid "Copyright Infringements (Audio and Video Recorders), 475." msgstr "" #. f20 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4426 msgid "" "<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony " "Corp. of America</citetitle>, 480 F. Supp. 429, (C.D. Cal., 1979)." msgstr "" #. f21 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4437 msgid "" "Copyright Infringements (Audio and Video Recorders), 485 (testimony of Jack " "Valenti)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4402 msgid "" "MPAA president Jack Valenti became the studios' most vocal champion. Valenti " "called VCRs <quote>tapeworms.</quote> He warned, <quote>When there are 20, " "30, 40 million of these VCRs in the land, we will be invaded by millions of " "<quote>tapeworms,</quote> eating away at the very heart and essence of the " "most precious asset the copyright owner has, his " "copyright.</quote><placeholder type=\"footnote\" id=\"0\"/> <quote>One does " "not have to be trained in sophisticated marketing and creative " "judgment,</quote> he told Congress, <quote>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.</quote><placeholder type=\"footnote\" id=\"1\"/> Indeed, as surveys " "would later show, 45 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 <quote>fair.</quote> By <quote>allowing VCR owners " "to copy freely by the means of an exemption from copyright infringement " "without creating a mechanism to compensate copyright owners,</quote> Valenti " "testified, Congress would <quote>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.</quote><placeholder type=\"footnote\" id=\"3\"/>" msgstr "" #. f22 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4456 msgid "" "<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony " "Corp. of America</citetitle>, 659 F. 2d 963 (9th Cir. 1981)." msgstr "" #. type: Content of: <book><part><chapter><section><para><indexterm><primary> #: freeculture.xml:4459 msgid "Kozinski, Alex" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4444 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 <quote>Hollywood Circuit</quote>—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 <quote>the Boston Strangler " "of the American film industry</quote> (worse yet, it was a " "<emphasis>Japanese</emphasis> Boston Strangler of the American film " "industry)—was an illegal technology.<placeholder type=\"footnote\" " "id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. PAGE BREAK 90 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4463 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><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:4482 msgid "" "<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City " "Studios, Inc</citetitle>., 464 U.S. 417, 431 (1984)." msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:4472 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><part><chapter><section><para> #: freeculture.xml:4488 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 " "<quote>taking</quote> notwithstanding. If we put these cases together, a " "pattern is clear:" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry> #: freeculture.xml:4499 msgid "CASE" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry> #: freeculture.xml:4500 msgid "WHOSE VALUE WAS <quote>PIRATED</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry> #: freeculture.xml:4501 msgid "RESPONSE OF THE COURTS" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry> #: freeculture.xml:4502 msgid "RESPONSE OF CONGRESS" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4507 msgid "Recordings" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4508 msgid "Composers" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4509 freeculture.xml:4521 freeculture.xml:4527 msgid "No protection" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4510 freeculture.xml:4522 msgid "Statutory license" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4514 msgid "Recording artists" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4515 msgid "N/A" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4516 freeculture.xml:4528 msgid "Nothing" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4520 msgid "Broadcasters" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4525 msgid "VCR" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:4526 msgid "Film creators" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4537 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> 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 <citetitle>United States " "Code</citetitle>), 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, " "<citetitle>Future</citetitle>, 71. See also Picker, <quote>From Edison to " "the Broadcast Flag,</quote> <citetitle>University of Chicago Law " "Review</citetitle> 70 (2003): 293–96. <placeholder type=\"indexterm\" " "id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4535 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 " "<quote>free ride</quote> on someone else's work." msgstr "" #. PAGE BREAK 91 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4557 msgid "" "In <emphasis>none</emphasis> of these cases did either the courts or " "Congress eliminate all free riding. In <emphasis>none</emphasis> 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 <quote>piracy.</quote> In every " "case, Congress acted to recognize some of the legitimacy in the behavior of " "the <quote>pirates.</quote> 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><part><chapter><section><para> #: freeculture.xml:4570 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4581 msgid "on balance of interests in copyright law" msgstr "" #. f25 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:4588 msgid "" "<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City " "Studios, Inc</citetitle>., 464 U.S. 417, (1984)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4583 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 " "<quote>has never accorded the copyright owner complete control over all " "possible uses of his work.</quote><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 <emphasis>after</emphasis> a technology has matured, or settled " "into the mix of technologies that facilitate the distribution of content." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4599 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 <quote>stealing</quote> 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><part><chapter><section><para><footnote><para> #: freeculture.xml:4623 msgid "" "John Schwartz, <quote>New Economy: The Attack on Peer-to-Peer Software " "Echoes Past Efforts,</quote> <citetitle>New York Times</citetitle>, 22 " "September 2003, C3." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4615 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 " "<quote>potential public benefits,</quote> as John Schwartz writes in " "<citetitle>The New York Times</citetitle>, <quote>could be delayed in the " "P2P fight.</quote><placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4628 msgid "" "<emphasis role='strong'>Yet when anyone</emphasis> begins to talk about " "<quote>balance,</quote> the copyright warriors raise a different " "argument. <quote>All this hand waving about balance and incentives,</quote> " "they say, <quote>misses a fundamental point. Our content,</quote> the " "warriors insist, <quote>is our <emphasis>property</emphasis>. Why should we " "wait for Congress to <quote>rebalance</quote> 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?</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:4641 msgid "" "<quote>It is <emphasis>our property</emphasis>,</quote> the warriors " "insist. <quote>And it should be protected just as any other property is " "protected.</quote>" msgstr "" #. type: Content of: <book><part><title> #: freeculture.xml:4650 msgid "<quote>Property</quote>" msgstr "" #. PAGE BREAK 94 #. type: Content of: <book><part><partintro><para> #: freeculture.xml:4655 msgid "" "<emphasis role='strong'>The copyright warriors</emphasis> 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><part><partintro><para> #: freeculture.xml:4662 msgid "" "But in ordinary language, to call a copyright a <quote>property</quote> " "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 " "<emphasis>idea</emphasis> 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 "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:4673 freeculture.xml:6488 freeculture.xml:14527 msgid "Jefferson, Thomas" msgstr "" #. f1 #. type: Content of: <book><part><partintro><para><footnote><para> #: freeculture.xml:4688 msgid "" "Letter from Thomas Jefferson to Isaac McPherson (13 August 1813) in " "<citetitle>The Writings of Thomas Jefferson</citetitle>, vol. 6 (Andrew " "A. Lipscomb and Albert Ellery Bergh, eds., 1903), 330, 333–34." msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:4675 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), <quote>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.</quote><placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><partintro><indexterm><secondary> #: freeculture.xml:4693 msgid "intangibility of" msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:4695 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><part><partintro><para><footnote><para> #: freeculture.xml:4708 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, " "<quote>What Is Property? Putting the Pieces Back Together,</quote> " "<citetitle>Arizona Law Review</citetitle> 45 (2003): 373, 429 n. 241." msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:4703 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 " "<quote>property</quote> in its proper context.<placeholder type=\"footnote\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:4718 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 <quote>copyright material " "is property</quote> 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—<quote>copyright material is " "property</quote>— 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><part><chapter><title> #: freeculture.xml:4731 msgid "Chapter Six: Founders" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:4732 msgid "English copyright law developed for" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4735 msgid "England, copyright laws developed in" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:4736 freeculture.xml:14064 msgid "United Kingdom" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:4736 msgid "history of copyright law in" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4737 freeculture.xml:4907 msgid "Branagh, Kenneth" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4738 msgid "Henry V" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4740 freeculture.xml:4872 msgid "Romeo and Juliet (Shakespeare)" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4742 msgid "" "<emphasis role='strong'>William Shakespeare</emphasis> wrote " "<citetitle>Romeo and Juliet</citetitle> 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: <quote>I liked it, " "but Shakespeare is so full of clichés.</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4753 freeculture.xml:4837 freeculture.xml:4946 freeculture.xml:5079 msgid "Conger" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4754 msgid "Tonson, Jacob" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:4760 msgid "Jonson, Ben" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:4761 msgid "Dryden, John" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:4760 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/> Jacob Tonson is typically remembered for his associations with " "prominent eighteenth-century literary figures, especially John Dryden, and " "for his handsome <quote>definitive editions</quote> of classic works. In " "addition to <citetitle>Romeo and Juliet</citetitle>, 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, <quote>Jacob Tonson, Bookseller,</quote> " "<citetitle>American Scholar</citetitle> 61:3 (1992): 424–31." msgstr "" #. f2 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:4773 msgid "" "Lyman Ray Patterson, <citetitle>Copyright in Historical " "Perspective</citetitle> (Nashville: Vanderbilt University Press, 1968), " "151–52." msgstr "" #. PAGE BREAK 97 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4756 msgid "" "In 1774, almost 180 years after <citetitle>Romeo and Juliet</citetitle> was " "written, the <quote>copy-right</quote> 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 " "<quote>copy</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:4785 freeculture.xml:4838 freeculture.xml:4978 freeculture.xml:5159 freeculture.xml:5315 msgid "British Parliament" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4787 freeculture.xml:7168 msgid "renewability of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:4788 freeculture.xml:4840 freeculture.xml:4884 freeculture.xml:4991 freeculture.xml:5078 freeculture.xml:7158 msgid "Statute of Anne (1710)" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:4799 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> As Siva Vaidhyanathan nicely " "argues, it is erroneous to call this a <quote>copyright law.</quote> See " "Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 40." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4790 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 " "<quote>copyright</quote> 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, <citetitle>Romeo and " "Juliet</citetitle> 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><part><chapter><indexterm><secondary> #: freeculture.xml:4808 freeculture.xml:5032 msgid "common vs. positive" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4809 freeculture.xml:5033 msgid "positive law" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4810 msgid "Licensing Act (1662)" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4812 msgid "" "The reason is that the English hadn't yet agreed on what a " "<quote>copyright</quote> 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 <quote>Stationers,</quote> had an exclusive right to print books." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4823 freeculture.xml:5031 freeculture.xml:5102 freeculture.xml:5202 msgid "common law" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4825 msgid "" "There was no <emphasis>positive</emphasis> 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 " "<quote>positive law.</quote> We call the words from judges <quote>common " "law.</quote> 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4839 freeculture.xml:5068 freeculture.xml:5176 freeculture.xml:5254 msgid "Scottish publishers" msgstr "" #. PAGE BREAK 98 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4842 msgid "" "This question was important to the publishers, or " "<quote>booksellers,</quote> 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><part><chapter><indexterm><secondary> #: freeculture.xml:4853 msgid "as narrow monopoly right" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4855 msgid "" "The Statute of Anne granted the author or <quote>proprietor</quote> 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 " "<quote>expired,</quote> 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><part><chapter><para> #: freeculture.xml:4865 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 <emphasis>at " "all?</emphasis>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4874 msgid "" "For the booksellers, and the authors whom they represented, had a very " "strong claim. Take <citetitle>Romeo and Juliet</citetitle> 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 <quote>steal</quote> Shakespeare's work?" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4886 msgid "" "The answer comes in two parts. We first need to see something special about " "the notion of <quote>copyright</quote> that existed at the time of the " "Statute of Anne. Second, we have to see something important about " "<quote>booksellers.</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:4891 freeculture.xml:7679 freeculture.xml:7850 msgid "usage restrictions attached to" msgstr "" #. PAGE BREAK 99 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4893 msgid "" "First, about copyright. In the last three hundred years, we have come to " "apply the concept of <quote>copyright</quote> 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 <quote>copy-right</quote> 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 <emphasis>used</emphasis>. 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><part><chapter><para> #: freeculture.xml:4910 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 " "<quote>copy-right</quote> was only an exclusive right to print—no " "less, of course, but also no more." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4919 msgid "Henry VIII, King of England" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4920 msgid "monopoly, copyright as" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4921 msgid "Statute of Monopolies (1656)" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4923 msgid "" "Even that limited right was viewed with skepticism by the British. They had " "had a long and ugly experience with <quote>exclusive rights,</quote> " "especially <quote>exclusive rights</quote> 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><part><chapter><para> #: freeculture.xml:4936 msgid "" "Thus the <quote>copy-right,</quote> when viewed as a monopoly right, was " "naturally viewed as a right that should be limited. (However convincing the " "claim that <quote>it's my property, and I should have it forever,</quote> " "try sounding convincing when uttering, <quote>It's my monopoly, and I should " "have it forever.</quote>) 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4944 freeculture.xml:5237 msgid "Milton, John" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4945 msgid "booksellers, English" msgstr "" #. f4 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:4964 msgid "" "Philip Wittenberg, <citetitle>The Protection and Marketing of Literary " "Property</citetitle> (New York: J. Messner, Inc., 1937), 31." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4949 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 <quote>old patentees and monopolizers in the trade of " "book-selling</quote>; they were <quote>men who do not therefore labour in an " "honest profession to which learning is indetted.</quote><placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4968 msgid "Enlightenment" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:4969 msgid "knowledge, freedom of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4971 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><part><chapter><para> #: freeculture.xml:4980 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><part><chapter><indexterm><secondary> #: freeculture.xml:4993 freeculture.xml:5128 freeculture.xml:5222 freeculture.xml:11215 msgid "in perpetuity" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:4995 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><part><chapter><para> #: freeculture.xml:5004 msgid "" "Parliament rejected their requests. As one pamphleteer put it, in words that " "echo today," msgstr "" #. f5 #. type: Content of: <book><part><chapter><blockquote><para><footnote><para> #: freeculture.xml:5019 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, <citetitle>Eldred</citetitle> " "v. <citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01-618)." msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:5009 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><part><chapter><para> #: freeculture.xml:5035 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 <quote>property</quote> 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><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:5057 freeculture.xml:5067 freeculture.xml:5110 msgid "Patterson, Raymond" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5057 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/> Lyman Ray Patterson, <quote>Free Speech, Copyright, and Fair " "Use,</quote> <citetitle>Vanderbilt Law Review</citetitle> 40 (1987): 28. For " "a wonderfully compelling account, see Vaidhyanathan, 37–48." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5051 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, <quote>The publishers " "… had as much concern for authors as a cattle rancher has for " "cattle.</quote><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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5066 freeculture.xml:5175 msgid "Donaldson, Alexander" msgstr "" #. f7 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5074 msgid "" "For a compelling account, see David Saunders, <citetitle>Authorship and " "Copyright</citetitle> (London: Routledge, 1992), 62–69." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5070 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5080 msgid "Boswell, James" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5081 msgid "Erskine, Andrew" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:5090 freeculture.xml:15697 msgid "Rose, Mark" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5088 msgid "" "Mark Rose, <citetitle>Authors and Owners</citetitle> (Cambridge: Harvard " "University Press, 1993), 92. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. f9 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5099 msgid "Ibid., 93." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5083 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 " "<quote>of standard works whose copyright term had expired,</quote> at least " "under the Statute of Anne.<placeholder type=\"footnote\" id=\"0\"/> " "Donaldson's publishing house prospered and became <quote>something of a " "center for literary Scotsmen.</quote> <quote>[A]mong them,</quote> Professor " "Mark Rose writes, was <quote>the young James Boswell who, together with his " "friend Andrew Erskine, published an anthology of contemporary Scottish poems " "with Donaldson.</quote><placeholder type=\"footnote\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5110 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> Lyman Ray Patterson, " "<citetitle>Copyright in Historical Perspective</citetitle>, 167 (quoting " "Borwell)." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5104 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 <quote>of the most popular English books, in defiance of the " "supposed common law right of Literary Property.</quote><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><part><chapter><indexterm><primary> #: freeculture.xml:5119 msgid "Millar v. Taylor" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5121 msgid "" "The London booksellers quickly brought suit to block <quote>piracy</quote> " "like Donaldson's. A number of actions were successful against the " "<quote>pirates,</quote> the most important early victory being " "<citetitle>Millar</citetitle> v. <citetitle>Taylor</citetitle>." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5127 freeculture.xml:5181 msgid "Thomson, James" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5129 msgid "Seasons, The (Thomson)" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5130 msgid "Taylor, Robert" msgstr "" #. f11 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5139 msgid "" "Howard B. Abrams, <quote>The Historic Foundation of American Copyright Law: " "Exploding the Myth of Common Law Copyright,</quote> <citetitle>Wayne Law " "Review</citetitle> 29 (1983): 1152." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5132 msgid "" "Millar was a bookseller who in 1729 had purchased the rights to James " "Thomson's poem <quote>The Seasons.</quote> 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><part><chapter><para> #: freeculture.xml:5146 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 <quote>pirates.</quote> 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><part><chapter><para> #: freeculture.xml:5161 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><part><chapter><para> #: freeculture.xml:5178 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><part><chapter><indexterm><primary> #: freeculture.xml:5182 msgid "Beckett, Thomas" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5183 freeculture.xml:5290 msgid "House of Lords" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:5184 msgid "House of Lords vs." msgstr "" #. f12 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5190 msgid "Ibid., 1156." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5186 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 <citetitle>Millar</citetitle>, 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><part><chapter><indexterm><primary> #: freeculture.xml:5201 msgid "Donaldson v. Beckett" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5204 msgid "" "As few legal cases ever do, <citetitle>Donaldson</citetitle> " "v. <citetitle>Beckett</citetitle> 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><part><chapter><para> #: freeculture.xml:5215 msgid "" "The House of Lords was an odd institution. Legal questions were presented to " "the House and voted upon first by the <quote>law lords,</quote> 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 "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:5223 freeculture.xml:5291 msgid "English legal establishment of" msgstr "" #. PAGE BREAK 104 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5225 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><part><chapter><indexterm><primary> #: freeculture.xml:5234 msgid "Bacon, Francis" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5235 msgid "Bunyan, John" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5236 msgid "Johnson, Samuel" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5240 msgid "" "<quote>The public domain.</quote> Before the case of " "<citetitle>Donaldson</citetitle> v. <citetitle>Beckett</citetitle>, 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." msgstr "" #. f13 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5266 msgid "Rose, 97." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5256 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 <quote>pirate publishers</quote> did their work, people celebrated " "the decision in the streets. As the <citetitle>Edinburgh " "Advertiser</citetitle> reported, <quote>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.</quote> <quote>Great rejoicing in Edinburgh upon victory over " "literary property: bonfires and illuminations.</quote><placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5271 msgid "" "In London, however, at least among publishers, the reaction was equally " "strong in the opposite direction. The <citetitle>Morning " "Chronicle</citetitle> reported:" msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:5277 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><part><chapter><para> #: freeculture.xml:5294 msgid "" "<quote>Ruined</quote> 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 " "<emphasis>free</emphasis>. 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 " "<emphasis>free</emphasis> 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 " "<emphasis>competitive context</emphasis>, 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><part><chapter><para> #: freeculture.xml:5317 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><part><chapter><title> #: freeculture.xml:5334 msgid "Chapter Seven: Recorders" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:5335 freeculture.xml:7657 freeculture.xml:7771 freeculture.xml:7830 msgid "fair use and" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5336 msgid "documentary film" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5337 msgid "Else, Jon" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:5338 freeculture.xml:5481 freeculture.xml:7656 freeculture.xml:7689 freeculture.xml:7770 freeculture.xml:7832 msgid "fair use" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:5338 msgid "in documentary film" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:5339 msgid "fair use of copyrighted material in" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5341 msgid "" "<emphasis role='strong'>Jon Else</emphasis> 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><part><chapter><para> #: freeculture.xml:5348 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><part><chapter><indexterm><primary> #: freeculture.xml:5352 freeculture.xml:5416 msgid "Wagner, Richard" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5353 freeculture.xml:5430 msgid "San Francisco Opera" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5355 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." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5362 msgid "Simpsons, The" msgstr "" #. PAGE BREAK 107 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5364 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 <citetitle>The Simpsons</citetitle>. As Else judged it, " "this touch of cartoon helped capture the flavor of what was special about " "the scene." msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:5373 msgid "multiple copyrights associated with" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5375 msgid "" "Years later, when he finally got funding to complete the film, Else " "attempted to clear the rights for those few seconds of <citetitle>The " "Simpsons</citetitle>. For of course, those few seconds are copyrighted; and " "of course, to use copyrighted material you need the permission of the " "copyright owner, unless <quote>fair use</quote> or some other privilege " "applies." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5381 msgid "Gracie Films" msgstr "" #. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><indexterm><primary> #: freeculture.xml:5382 freeculture.xml:5503 msgid "Groening, Matt" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5384 msgid "" "Else called <citetitle>Simpsons</citetitle> 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." msgstr "" #. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><indexterm><primary> #: freeculture.xml:5390 freeculture.xml:5502 msgid "Fox (film company)" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5392 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." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5400 msgid "" "Then, as Else told me, <quote>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.</quote> And " "second, Fox <quote>wanted ten thousand dollars as a licensing fee for us to " "use this four-point-five seconds of … entirely unsolicited " "<citetitle>Simpsons</citetitle> which was in the corner of the shot.</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5407 msgid "Herrera, Rebecca" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5409 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, <quote>There must be some mistake here. … We're asking for " "your educational rate on this.</quote> 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><part><chapter><para> #: freeculture.xml:5418 msgid "" "<quote>I wanted to make sure I had my facts straight,</quote> he told " "me. <quote>Yes, you have your facts straight,</quote> she said. It would " "cost $10,000 to use the clip of <citetitle>The Simpsons</citetitle> in the " "corner of a shot in a documentary film about Wagner's Ring Cycle. And then, " "astonishingly, Herrera told Else, <quote>And if you quote me, I'll turn you " "over to our attorneys.</quote> As an assistant to Herrera told Else later " "on, <quote>They don't give a shit. They just want the money.</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5431 msgid "Day After Trinity, The" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5433 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, <citetitle>The Day " "After Trinity</citetitle>, from ten years before." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5441 msgid "" "There's no doubt that someone, whether Matt Groening or Fox, owns the " "copyright to <citetitle>The Simpsons</citetitle>. 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 <citetitle>Simpsons</citetitle> 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><part><chapter><para> #: freeculture.xml:5452 msgid "" "For example, <quote>public performance</quote> is a use of <citetitle>The " "Simpsons</citetitle> 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 <quote>My Favorite <citetitle>Simpsons</citetitle>,</quote> 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><part><chapter><para><footnote><para> #: freeculture.xml:5464 msgid "" "For an excellent argument that such use is <quote>fair use,</quote> but that " "lawyers don't permit recognition that it is <quote>fair use,</quote> see " "Richard A. Posner with William F. Patry, <quote>Fair Use and Statutory " "Reform in the Wake of <citetitle>Eldred</citetitle></quote> (draft on file " "with author), University of Chicago Law School, 5 August 2003." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5461 msgid "" "But when lawyers hear this story about Jon Else and Fox, their first thought " "is <quote>fair use.</quote><placeholder type=\"footnote\" id=\"0\"/> Else's " "use of just 4.5 seconds of an indirect shot of a " "<citetitle>Simpsons</citetitle> episode is clearly a fair use of " "<citetitle>The Simpsons</citetitle>—and fair use does not require the " "permission of anyone." msgstr "" #. PAGE BREAK 109 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5478 msgid "" "So I asked Else why he didn't just rely upon <quote>fair use.</quote> Here's " "his reply:" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:5481 freeculture.xml:7832 msgid "legal intimidation tactics against" msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:5483 msgid "" "The <citetitle>Simpsons</citetitle> 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 " "<quote>clearly fair use</quote> in an absolute legal sense. But I couldn't " "rely on the concept in any concrete way. Here's why:" msgstr "" #. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><indexterm><primary> #: freeculture.xml:5492 msgid "Errors and Omissions insurance" msgstr "" #. 1. #. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><para> #: freeculture.xml:5495 msgid "" "Before our films can be broadcast, the network requires that we buy Errors " "and Omissions insurance. The carriers require a detailed <quote>visual cue " "sheet</quote> listing the source and licensing status of each shot in the " "film. They take a dim view of <quote>fair use,</quote> and a claim of " "<quote>fair use</quote> can grind the application process to a halt." msgstr "" #. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><indexterm><primary> #: freeculture.xml:5504 msgid "Lucas, George" msgstr "" #. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><indexterm><primary> #: freeculture.xml:5505 msgid "<citetitle>Star Wars</citetitle>" msgstr "" #. 2. #. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><para> #: freeculture.xml:5508 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 <citetitle>Simpsons</citetitle> usage, just as George " "Lucas had a very high profile litigating <citetitle>Star Wars</citetitle> " "usage. So I decided to play by the book, thinking that we would be granted " "free or cheap license to four seconds of <citetitle>Simpsons</citetitle>. 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." msgstr "" #. 3. #. PAGE BREAK 110 #. type: Content of: <book><part><chapter><blockquote><orderedlist><listitem><para> #: freeculture.xml:5520 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 <quote>depose and litigate you to within an inch of your life,</quote> " "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><part><chapter><blockquote><orderedlist><listitem><para> #: freeculture.xml:5532 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><part><chapter><para> #: freeculture.xml:5540 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><part><chapter><para> #: freeculture.xml:5548 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><part><chapter><title> #: freeculture.xml:5563 msgid "Chapter Eight: Transformers" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5564 msgid "Allen, Paul" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:5565 freeculture.xml:5625 freeculture.xml:5810 freeculture.xml:10566 freeculture.xml:15061 msgid "Alben, Alex" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5568 msgid "" "<emphasis role='strong'>In 1993</emphasis>, 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><part><chapter><indexterm><secondary> #: freeculture.xml:5575 msgid "retrospective compilations on" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5576 msgid "CD-ROMs, film clips used in" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5578 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><part><chapter><para> #: freeculture.xml:5588 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><part><chapter><para> #: freeculture.xml:5595 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><part><chapter><para> #: freeculture.xml:5602 msgid "" "Then Alben and his team decided to include actual film clips. <quote>Our " "goal was that we were going to have a clip from every one of Eastwood's " "films,</quote> Alben told me. It was here that the problem arose. <quote>No " "one had ever really done this before,</quote> Alben explained. <quote>No one " "had ever tried to do this in the context of an artistic look at an actor's " "career.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5610 msgid "" "Alben brought the idea to Michael Slade, the CEO of Starwave. Slade asked, " "<quote>Well, what will it take?</quote>" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><secondary> #: freeculture.xml:5624 msgid "publicity rights on images of" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5620 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 <quote>Rip, Mix, Burn</quote> " "creativity, as this chapter evinces. <placeholder type=\"indexterm\" " "id=\"0\"/> <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5614 msgid "" "Alben replied, <quote>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.</quote> Slade said, <quote>Great! Go for " "it.</quote><placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5629 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><part><chapter><para> #: freeculture.xml:5636 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><part><chapter><blockquote><para> #: freeculture.xml:5642 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 <quote>Make my day</quote> clip from <citetitle>Dirty " "Harry</citetitle>. 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><part><chapter><blockquote><para> #: freeculture.xml:5651 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><part><chapter><indexterm><primary> #: freeculture.xml:5662 msgid "Sutherland, Donald" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5664 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, <quote>Hey, can I pay " "you $600 or maybe if you were in two films, you know, $1,200?</quote> And " "they would say, <quote>Are you for real? Hey, I'd love to get " "$1,200.</quote> 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><part><chapter><para> #: freeculture.xml:5675 msgid "" "It was one <emphasis>year</emphasis> later—<quote>and even then we " "weren't sure whether we were totally in the clear.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5679 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><part><chapter><blockquote><para> #: freeculture.xml:5685 msgid "" "Everyone thought it would be too hard. Everyone just threw up their hands " "and said, <quote>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.</quote> But we just broke it down. We just put it into its " "constituent parts and said, <quote>Okay, there's this many actors, this many " "directors, … this many musicians,</quote> and we just went at it very " "systematically and cleared the rights." msgstr "" #. PAGE BREAK 114 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5697 msgid "" "And no doubt, the product itself was exceptionally good. Eastwood loved it, " "and it sold very well." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5700 msgid "Drucker, Peter" msgstr "" #. f2 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5708 msgid "" "U.S. Department of Commerce Office of Acquisition Management, " "<citetitle>Seven Steps to Performance-Based Services " "Acquisition</citetitle>, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #22</ulink>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5702 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, <quote>There is " "nothing so useless as doing efficiently that which should not be done at " "all.</quote><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><part><chapter><para> #: freeculture.xml:5716 msgid "" "For, as he acknowledged, <quote>very few … have the time and " "resources, and the will to do this,</quote> 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><part><chapter><blockquote><para> #: freeculture.xml:5724 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><part><chapter><para> #: freeculture.xml:5732 msgid "" "Or at least, is this <emphasis>how</emphasis> 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><part><chapter><blockquote><para> #: freeculture.xml:5743 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, <quote>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,</quote> then it becomes difficult to put one of these things " "together." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5763 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?" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5772 msgid "" "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, <quote>Does this still make sense?</quote>" msgstr "" #. PAGE BREAK 116 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5785 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><part><chapter><para> #: freeculture.xml:5795 msgid "" "The video was a brilliant collage of film from every period in the twentieth " "century, all framed around the idea of a <citetitle>60 Minutes</citetitle> " "episode. The execution was perfect, down to the sixty-minute stopwatch. The " "judges loved every minute of it." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5800 msgid "Nimmer, David" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5802 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: <quote>Do you know how many federal laws were just violated in " "this room?</quote>" msgstr "" #. type: Content of: <book><part><chapter><para><indexterm><primary> #: freeculture.xml:5811 msgid "Boies, David" msgstr "" #. type: Content of: <book><part><chapter><para><indexterm><primary> #: freeculture.xml:5812 msgid "Court of Appeals" msgstr "" #. type: Content of: <book><part><chapter><para><indexterm><secondary> #: freeculture.xml:5812 msgid "Ninth Circuit" msgstr "" #. type: Content of: <book><part><chapter><para><indexterm><primary> #: freeculture.xml:5813 msgid "Ninth Circuit Court of Appeals" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5810 msgid "" "<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\"/> 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><part><chapter><para> #: freeculture.xml:5830 msgid "" "We live in a <quote>cut and paste</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:5836 msgid "Camp Chaos" msgstr "" #. PAGE BREAK 117 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5838 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." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5849 msgid "" "All of these creations are technically illegal. Even if the creators wanted " "to be <quote>legal,</quote> 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><part><chapter><para> #: freeculture.xml:5856 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 <quote>free</quote> use be free as in <quote>free beer.</quote> 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 <quote>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.</quote> 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><part><chapter><para> #: freeculture.xml:5871 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><part><chapter><para> #: freeculture.xml:5877 msgid "" "<emphasis role='strong'>In February 2003</emphasis>, DreamWorks studios " "announced an agreement with Mike Myers, the comic genius of " "<citetitle>Saturday Night Live</citetitle> and Austin Powers. According to " "the announcement, Myers and Dream-Works would work together to form a " "<quote>unique filmmaking pact.</quote> Under the agreement, DreamWorks " "<quote>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.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5890 msgid "" "The announcement called this <quote>film sampling.</quote> As Myers " "explained, <quote>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.</quote> Steven Spielberg is " "quoted as saying, <quote>If anyone can create a way to bring old films to " "new audiences, it is Mike.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5899 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><part><chapter><para> #: freeculture.xml:5909 msgid "" "This privilege becomes reserved for two sorts of reasons. The first " "continues the story of the last chapter: the vagueness of <quote>fair " "use.</quote> Much of <quote>sampling</quote> should be considered " "<quote>fair use.</quote> 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><part><chapter><title> #: freeculture.xml:5924 msgid "Chapter Nine: Collectors" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:5925 freeculture.xml:9296 freeculture.xml:11648 freeculture.xml:11894 msgid "archives, digital" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:5926 freeculture.xml:8577 msgid "bots" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5928 msgid "" "<emphasis role='strong'>In April 1996</emphasis>, millions of " "<quote>bots</quote>—computer codes designed to <quote>spider,</quote> " "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><part><chapter><indexterm><primary> #: freeculture.xml:5938 freeculture.xml:5969 freeculture.xml:6033 msgid "Way Back Machine" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5940 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 <quote>the Way Back Machine,</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:5947 msgid "Orwell, George" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5949 msgid "" "This is the thing about the Internet that Orwell would have appreciated. In " "the dystopia described in <citetitle>1984</citetitle>, 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><part><chapter><para> #: freeculture.xml:5957 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><part><chapter><para> #: freeculture.xml:5962 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 "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:5979 msgid "White House press releases" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:5977 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> 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, " "<quote>Combat Operations in Iraq Have Ended.</quote> That was later changed, " "without notice, to <quote>Major Combat Operations in Iraq Have " "Ended.</quote> E-mail from Brewster Kahle, 1 December 2003." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5971 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><part><chapter><indexterm><primary> #: freeculture.xml:5987 msgid "history, records of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:5989 msgid "" "<emphasis role='strong'>We take it</emphasis> 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><part><chapter><para> #: freeculture.xml:6000 msgid "" "It is said that those who fail to remember history are doomed to repeat " "it. That's not quite correct. We <emphasis>all</emphasis> 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><part><chapter><para> #: freeculture.xml:6009 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><part><chapter><para> #: freeculture.xml:6021 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><part><chapter><section><indexterm><primary> #: freeculture.xml:6030 freeculture.xml:6085 freeculture.xml:10551 msgid "Library of Congress" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6031 msgid "Television Archive" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6032 msgid "Vanderbilt University" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:6034 freeculture.xml:11124 freeculture.xml:14239 freeculture.xml:14369 freeculture.xml:14405 msgid "libraries" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:6034 msgid "archival function of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6037 msgid "" "The Way Back Machine is the largest archive of human knowledge in human " "history. At the end of 2002, it held <quote>two hundred and thirty terabytes " "of material</quote>—and was <quote>ten times larger than the Library " "of Congress.</quote> 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. <quote>But other than that, [television] is almost " "unavailable,</quote> Kahle told me. <quote>If you were Barbara Walters you " "could get access to [the archives], but if you are just a graduate " "student?</quote> As Kahle put it," msgstr "" #. type: Content of: <book><part><chapter><blockquote><indexterm><primary> #: freeculture.xml:6054 msgid "Quayle, Dan" msgstr "" #. type: Content of: <book><part><chapter><blockquote><indexterm><primary> #: freeculture.xml:6055 msgid "60 Minutes" msgstr "" #. PAGE BREAK 122 #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:6057 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 <citetitle>60 Minutes</citetitle> episode that came out " "after it … it would be almost impossible. … Those materials " "are almost unfindable. …" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6068 freeculture.xml:8680 msgid "newspapers" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:6068 msgid "archives of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6070 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><part><chapter><para> #: freeculture.xml:6078 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 "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:6086 freeculture.xml:6130 msgid "archive of" msgstr "" #. f2 #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:6097 msgid "" "Doug Herrick, <quote>Toward a National Film Collection: Motion Pictures at " "the Library of Congress,</quote> <citetitle>Film Library " "Quarterly</citetitle> 13 nos. 2–3 (1980): 5; Anthony Slide, " "<citetitle>Nitrate Won't Wait: A History of Film Preservation in the United " "States</citetitle> (Jefferson, N.C.: McFarland & Co., 1992), 36." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6088 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 <quote>borrowed back.</quote> 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><part><chapter><para> #: freeculture.xml:6105 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 <quote>theft.</quote> 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 " "<quote>copyrighted.</quote> 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><part><chapter><para> #: freeculture.xml:6117 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><part><chapter><indexterm><primary> #: freeculture.xml:6127 msgid "Movie Archive" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6128 msgid "archive.org" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6128 freeculture.xml:6131 msgid "Internet Archive" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6132 msgid "Duck and Cover film" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6133 msgid "ephemeral films" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6134 msgid "Prelinger, Rick" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6136 msgid "" "Kahle had the same idea with film. Working with Rick Prelinger, whose " "archive of film includes close to 45,000 <quote>ephemeral films</quote> " "(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 " "<quote>Duck and Cover</quote> 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." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6154 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><part><chapter><para> #: freeculture.xml:6162 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><part><chapter><para> #: freeculture.xml:6170 msgid "" "For here is an idea that we should more clearly recognize. Every bit of " "creative property goes through different <quote>lives.</quote> 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><part><chapter><para> #: freeculture.xml:6182 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 "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:6195 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> Dave Barns, <quote>Fledgling " "Career in Antique Books: Woodstock Landlord, Bar Owner Starts a New Chapter " "by Adopting Business,</quote> <citetitle>Chicago Tribune</citetitle>, 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, <quote>The First " "Sale Doctrine in the Era of Digital Networks,</quote> <citetitle>Boston " "College Law Review</citetitle> 44 (2003): 593 n. 51." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6192 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><part><chapter><para> #: freeculture.xml:6210 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><part><chapter><para> #: freeculture.xml:6221 msgid "" "<emphasis role='strong'>For most of</emphasis> 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><part><chapter><para> #: freeculture.xml:6233 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><part><chapter><para> #: freeculture.xml:6241 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><part><chapter><blockquote><indexterm><secondary> #: freeculture.xml:6247 freeculture.xml:6248 freeculture.xml:6251 msgid "total number of" msgstr "" #. type: Content of: <book><part><chapter><blockquote><indexterm><primary> #: freeculture.xml:6249 freeculture.xml:6250 freeculture.xml:6251 msgid "music recordings" msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:6253 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><part><chapter><para> #: freeculture.xml:6268 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. <emphasis>When</emphasis> 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 " "<emphasis>for</emphasis> our past. The technology of digital arts could make " "the dream of the Library of Alexandria real again." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6283 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 <quote>archives,</quote> as warm as the idea of a " "<quote>library</quote> might seem, the <quote>content</quote> that is " "collected in these digital spaces is also someone's <quote>property.</quote> " "And the law of property restricts the freedoms that Kahle and others would " "exercise." msgstr "" #. type: Content of: <book><part><chapter><title> #: freeculture.xml:6295 msgid "Chapter Ten: <quote>Property</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6296 msgid "Johnson, Lyndon" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6297 freeculture.xml:10307 msgid "Kennedy, John F." msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:6298 msgid "background of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6300 msgid "" "<emphasis role='strong'>Jack Valenti</emphasis> 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." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6310 msgid "MGM" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6311 msgid "Paramount Pictures" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6312 msgid "Twentieth Century Fox" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6313 msgid "Sony Pictures Entertainment" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6314 msgid "Universal Pictures" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6315 freeculture.xml:7941 freeculture.xml:8115 msgid "Warner Brothers" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6317 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." msgstr "" #. PAGE BREAK 128 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6330 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><part><chapter><para> #: freeculture.xml:6342 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 " "<quote>creative property.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6351 msgid "In 1982, Valenti's testimony to Congress captured the strategy perfectly:" msgstr "" #. f1 #. type: Content of: <book><part><chapter><blockquote><para><footnote><para> #: freeculture.xml:6365 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><part><chapter><blockquote><para> #: freeculture.xml:6356 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: <emphasis>Creative property owners must be " "accorded the same rights and protection resident in all other property " "owners in the nation</emphasis>. 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><part><chapter><para> #: freeculture.xml:6375 msgid "" "The strategy of this rhetoric, like the strategy of most of Valenti's " "rhetoric, is brilliant and simple and brilliant because simple. The " "<quote>central theme</quote> to which <quote>reasonable men and " "women</quote> will return is this: <quote>Creative property owners must be " "accorded the same rights and protections resident in all other property " "owners in the nation.</quote> There are no second-class citizens, Valenti " "might have continued. There should be no second-class property owners." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6386 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 <emphasis>anyone</emphasis> 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 <quote>creative property.</quote> His views have " "<emphasis>no</emphasis> 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><part><chapter><para><footnote><para> #: freeculture.xml:6402 msgid "" "Lawyers speak of <quote>property</quote> not as an absolute thing, but as a " "bundle of rights that are sometimes associated with a particular " "object. Thus, my <quote>property right</quote> 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 <quote>property</quote> to " "<quote>lawyer talk,</quote> see Bruce Ackerman, <citetitle>Private Property " "and the Constitution</citetitle> (New Haven: Yale University Press, 1977), " "26–27." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6399 msgid "" "While <quote>creative property</quote> is certainly <quote>property</quote> " "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 <quote>creative property owners</quote> have " "been <quote>accorded the same rights and protection resident in all other " "property owners.</quote> 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><part><chapter><para> #: freeculture.xml:6417 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><part><chapter><para> #: freeculture.xml:6425 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><part><chapter><para> #: freeculture.xml:6440 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." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6449 msgid "" "<emphasis role='strong'>To get</emphasis> 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><part><chapter><para> #: freeculture.xml:6454 msgid "" "The framers of our Constitution loved <quote>property.</quote> 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 <quote>Takings Clause,</quote> to pay " "you <quote>just compensation</quote> for that taking. The Constitution thus " "guarantees that property is, in a certain sense, sacred. It cannot " "<emphasis>ever</emphasis> be taken from the property owner unless the " "government pays for the privilege." msgstr "" #. PAGE BREAK 131 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6465 msgid "" "Yet the very same Constitution speaks very differently about what Valenti " "calls <quote>creative property.</quote> In the clause granting Congress the " "power to create <quote>creative property,</quote> the Constitution " "<emphasis>requires</emphasis> that after a <quote>limited time,</quote> " "Congress take back the rights that it has granted and set the " "<quote>creative property</quote> free to the public domain. Yet when " "Congress does this, when the expiration of a copyright term " "<quote>takes</quote> your copyright and turns it over to the public domain, " "Congress does not have any obligation to pay <quote>just " "compensation</quote> for this <quote>taking.</quote> Instead, the same " "Constitution that requires compensation for your land requires that you lose " "your <quote>creative property</quote> right without any compensation at all." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6480 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><part><chapter><para> #: freeculture.xml:6490 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><part><chapter><para> #: freeculture.xml:6502 msgid "" "Instead, my argument is that because Jefferson did it, we should at least " "try to understand <emphasis>why</emphasis>. 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><part><chapter><para> #: freeculture.xml:6512 msgid "" "To answer this question, we need to get some perspective on the history of " "these <quote>creative property</quote> 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 <emphasis>whether</emphasis> creative property " "should be protected, but how. Not <emphasis>whether</emphasis> we will " "enforce the rights the law gives to creative-property owners, but what the " "particular mix of rights ought to be. Not <emphasis>whether</emphasis> " "artists should be paid, but whether institutions designed to assure that " "artists get paid need also control how culture develops." msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:6525 freeculture.xml:8060 freeculture.xml:9928 freeculture.xml:11255 freeculture.xml:11301 freeculture.xml:13642 msgid "Lessig, Lawrence" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:6526 msgid "four modalities of constraint on" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6527 freeculture.xml:6788 freeculture.xml:9877 freeculture.xml:9994 freeculture.xml:10106 msgid "regulation" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:6527 msgid "four modalities of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:6528 msgid "as ex post regulation modality" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:6529 freeculture.xml:6605 freeculture.xml:6742 msgid "as constraint modality" msgstr "" #. PAGE BREAK 132 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6533 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 <citetitle>Code and Other Laws of " "Cyberspace</citetitle>, 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><part><chapter><section><figure> #: freeculture.xml:6543 freeculture.xml:6738 freeculture.xml:7112 msgid "" "<graphic fileref=\"images/1331.svg\" align=\"center\" " "width=\"10em\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6547 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><part><chapter><section><indexterm><primary> #: freeculture.xml:6563 freeculture.xml:6625 freeculture.xml:6743 msgid "norms, regulatory influence of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6565 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><part><chapter><section><indexterm><primary> #: freeculture.xml:6575 freeculture.xml:6624 freeculture.xml:6718 freeculture.xml:6759 freeculture.xml:9886 freeculture.xml:10104 msgid "market constraints" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6577 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><part><chapter><section><indexterm><primary> #: freeculture.xml:6586 freeculture.xml:6623 freeculture.xml:6676 freeculture.xml:6717 freeculture.xml:6741 msgid "architecture, constraint effected through" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6588 msgid "" "Finally, and for the moment, perhaps, most mysteriously, " "<quote>architecture</quote>—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 <quote>architecture.</quote> 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><part><chapter><para> #: freeculture.xml:6609 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><part><chapter><para> #: freeculture.xml:6615 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><part><chapter><indexterm><primary> #: freeculture.xml:6626 msgid "driving speed, constraints on" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:6627 msgid "speeding, constraints on" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6629 msgid "" "So, for example, consider the <quote>freedom</quote> 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 "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:6647 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, <citetitle>Code: And Other " "Laws of Cyberspace</citetitle> (New York: Basic Books, 1999): 90–95; " "Lawrence Lessig, <quote>The New Chicago School,</quote> <citetitle>Journal " "of Legal Studies</citetitle>, June 1998. <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. PAGE BREAK 135 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6643 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><part><chapter><figure> #: freeculture.xml:6673 msgid "" "<graphic fileref=\"images/1361.svg\" align=\"center\" " "width=\"12em\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:6715 msgid "Americans with Disabilities Act (1990)" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:6716 msgid "Commons, John R." msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:6686 msgid "" "Some people object to this way of talking about <quote>liberty.</quote> 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 <citetitle>Code</citetitle>, 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, <citetitle>On " "Liberty</citetitle> (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, <quote>The Right to Work,</quote> in " "Malcom Rutherford and Warren J. Samuels, eds., <citetitle>John R. Commons: " "Selected Essays</citetitle> (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 <citetitle>United States " "Code</citetitle>, 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\"/> <placeholder type=\"indexterm\" id=\"1\"/> " "<placeholder type=\"indexterm\" id=\"2\"/> <placeholder type=\"indexterm\" " "id=\"3\"/> <placeholder type=\"indexterm\" id=\"4\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:6678 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><part><chapter><section><title> #: freeculture.xml:6724 msgid "Why Hollywood Is Right" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:6725 freeculture.xml:7102 msgid "four regulatory modalities on" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6727 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><part><chapter><section><para> #: freeculture.xml:6733 msgid "Let's say this is the picture of copyright's regulation before the Internet:" msgstr "" #. PAGE BREAK 136 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6746 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:6757 msgid "copyright regulatory balance lost with" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:6758 msgid "regulatory balance lost in" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6760 msgid "MP3s" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6762 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6771 freeculture.xml:7621 freeculture.xml:7930 freeculture.xml:10107 msgid "technology" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:6771 msgid "established industries threatened by changes in" msgstr "" #. PAGE BREAK 137 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6773 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><part><chapter><section><figure> #: freeculture.xml:6784 msgid "" "<graphic fileref=\"images/1381.svg\" align=\"center\" " "width=\"10em\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6787 msgid "Commerce, U.S. Department of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:6788 freeculture.xml:9877 msgid "as establishment protectionism" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6790 msgid "" "Neither this analysis nor the conclusions that follow are new to the " "warriors. Indeed, in a <quote>White Paper</quote> 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6803 freeculture.xml:6943 msgid "farming" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6804 msgid "steel industry" msgstr "" #. PAGE BREAK 138 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6806 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><part><chapter><section><para> #: freeculture.xml:6826 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 " "<quote>architecture of revenue.</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6839 msgid "railroad industry" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6840 msgid "remote channel changers" msgstr "" #. f5 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:6850 msgid "" "See Geoffrey Smith, <quote>Film vs. Digital: Can Kodak Build a " "Bridge?</quote> 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, " "<quote>Can Kodak Make Up for Lost Moments?</quote> Forbes.com, 6 October " "2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#24</ulink>." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6842 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 <emphasis>for the purpose of</emphasis> protecting the " "railroads? Closer to the subject of this book, remote channel changers have " "weakened the <quote>stickiness</quote> 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6871 msgid "free market, technological changes in" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:6872 freeculture.xml:15639 msgid "Brezhnev, Leonid" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:6875 freeculture.xml:13828 msgid "Gates, Bill" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6876 freeculture.xml:7895 msgid "market competition" msgstr "" #. f6 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:6889 msgid "" "Fred Warshofsky, <citetitle>The Patent Wars</citetitle> (New York: Wiley, " "1994), 170–71." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6879 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, <quote>established companies have an interest in excluding future " "competitors.</quote><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." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6900 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><part><chapter><section><indexterm><primary> #: freeculture.xml:6911 msgid "speech, freedom of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:6911 msgid "constitutional guarantee of" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6913 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: <quote>Congress shall make no law … abridging the " "freedom of speech.</quote> So when Congress is being asked to pass laws that " "would <quote>abridge</quote> the freedom of speech, it should ask— " "carefully—whether such regulation is justified." msgstr "" #. PAGE BREAK 140 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6929 msgid "" "My argument just now, however, has nothing to do with whether the changes " "that are being pushed by the copyright warriors are " "<quote>justified.</quote> 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><part><chapter><section><para> #: freeculture.xml:6938 msgid "Here's the metaphor that will capture the argument to follow." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6940 msgid "Müller, Paul Hermann" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6941 msgid "DDT" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6942 msgid "insecticide, environmental consequences of" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6945 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." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6952 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><part><chapter><section><indexterm><primary> #: freeculture.xml:6956 msgid "Carson, Rachel" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6957 msgid "Silent Spring (Carson)" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6958 msgid "environmentalism" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6960 msgid "" "But in 1962, Rachel Carson published <citetitle>Silent Spring</citetitle>, " "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." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6966 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:6975 msgid "Boyle, James" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:6976 msgid "innovative freedom balanced with fair compensation in" msgstr "" #. f7 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:6982 msgid "" "See, for example, James Boyle, <quote>A Politics of Intellectual Property: " "Environmentalism for the Net?</quote> <citetitle>Duke Law " "Journal</citetitle> 47 (1997): 87." msgstr "" #. PAGE BREAK 141 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:6978 msgid "" "It is to this image precisely that Duke University law professor James Boyle " "appeals when he argues that we need an <quote>environmentalism</quote> 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 <quote>for free.</quote> 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><part><chapter><section><para> #: freeculture.xml:7000 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><part><chapter><section><para> #: freeculture.xml:7012 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><part><chapter><section><title> #: freeculture.xml:7021 msgid "Beginnings" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7022 msgid "on creative property" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:7023 freeculture.xml:11555 msgid "copyright purpose established in" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:7024 freeculture.xml:11253 freeculture.xml:12371 msgid "Progress Clause of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:7025 freeculture.xml:11556 msgid "constitutional purpose of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7027 msgid "constitutional tradition on" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:7028 freeculture.xml:11254 freeculture.xml:12369 msgid "Progress Clause" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7031 msgid "" "America copied English copyright law. Actually, we copied and improved " "English copyright law. Our Constitution makes the purpose of <quote>creative " "property</quote> rights clear; its express limitations reinforce the English " "aim to avoid overly powerful publishers." msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:7036 freeculture.xml:12368 msgid "in constitutional Progress Clause" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7038 msgid "" "The power to establish <quote>creative property</quote> 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 "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:7044 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." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7052 msgid "" "We can call this the <quote>Progress Clause,</quote> for notice what this " "clause does not say. It does not say Congress has the power to grant " "<quote>creative property rights.</quote> It says that Congress has the power " "<emphasis>to promote progress</emphasis>. 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:7061 msgid "history of American" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7063 msgid "" "The Progress Clause expressly limits the term of copyrights. As we saw in " "chapter <xref xrefstyle=\"select: labelnumber\" linkend=\"founders\"/>, 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 <quote>to " "Authors</quote> only." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:7072 msgid "Senate, U.S." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7073 msgid "structural checks and balances of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:7074 msgid "electoral college" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7076 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 <emphasis>structure</emphasis> built " "checks and balances into the constitutional frame, structured to prevent " "otherwise inevitable concentrations of power." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7093 msgid "" "I doubt the framers would recognize the regulation we call " "<quote>copyright</quote> 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 <quote>copyright</quote> 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><part><chapter><section><para> #: freeculture.xml:7104 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><part><chapter><section><para> #: freeculture.xml:7115 msgid "We will end here:" msgstr "" #. type: Content of: <book><part><chapter><section><figure> #: freeculture.xml:7119 msgid "" "<graphic fileref=\"images/1442.svg\" align=\"center\" " "width=\"10em\"></graphic>" msgstr "" #. PAGE BREAK 144 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7122 msgid "Let me explain how." msgstr "" #. type: Content of: <book><part><chapter><section><title> #: freeculture.xml:7127 msgid "Law: Duration" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:7130 freeculture.xml:7424 msgid "Copyright Act (1790)" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7131 msgid "common law protections of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7132 msgid "balance of U.S. content in" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:7149 msgid "Crosskey, William W." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:7142 msgid "" "William W. Crosskey, <citetitle>Politics and the Constitution in the History " "of the United States</citetitle> (London: Cambridge University Press, 1953), " "vol. 1, 485–86: <quote>extinguish[ing], by plain implication of " "<quote>the supreme Law of the Land,</quote> <emphasis>the perpetual rights " "which authors had, or were supposed by some to have, under the Common " "Law</emphasis></quote> (emphasis added). <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7134 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:7159 msgid "federal vs. state" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7161 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><part><chapter><section><para> #: freeculture.xml:7170 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><part><chapter><section><para><footnote><para> #: freeculture.xml:7186 msgid "" "Although 13,000 titles were published in the United States from 1790 to " "1799, only 556 copyright registrations were filed; John Tebbel, <citetitle>A " "History of Book Publishing in the United States</citetitle>, vol. 1, " "<citetitle>The Creation of an Industry, 1630–1865</citetitle> (New " "York: Bowker, 1972), 141. Of the 21,000 imprints recorded before 1790, only " "twelve were copyrighted under the 1790 act; William J. Maher, " "<citetitle>Copyright Term, Retrospective Extension and the Copyright Law of " "1790 in Historical Context</citetitle>, 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><part><chapter><section><para> #: freeculture.xml:7178 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><part><chapter><section><para> #: freeculture.xml:7204 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><part><chapter><section><para><footnote><para> #: freeculture.xml:7219 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, " "<quote>Study No. 31: Renewal of Copyright,</quote> <citetitle>Studies on " "Copyright</citetitle>, vol. 1 (New York: Practicing Law Institute, 1963), " "618. For a more recent and comprehensive analysis, see William M. Landes and " "Richard A. Posner, <quote>Indefinitely Renewable Copyright,</quote> " "<citetitle>University of Chicago Law Review</citetitle> 70 (2003): 471, " "498–501, and accompanying figures." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7213 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><part><chapter><section><para><footnote><para> #: freeculture.xml:7237 msgid "See Ringer, ch. 9, n. 2." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7233 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 <emphasis>effectively</emphasis> 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><part><chapter><indexterm><secondary> #: freeculture.xml:7245 freeculture.xml:11190 freeculture.xml:12370 msgid "copyright terms extended by" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:7246 freeculture.xml:11192 msgid "term extensions in" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7248 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><part><chapter><section><indexterm><primary> #: freeculture.xml:7255 msgid "CTEA" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:7255 freeculture.xml:7256 freeculture.xml:7291 freeculture.xml:11216 freeculture.xml:15557 msgid "Sonny Bono Copyright Term Extension Act (CTEA) (1998)" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:7257 freeculture.xml:11196 msgid "future patents vs. future copyrights in" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7259 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 "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:7268 freeculture.xml:11195 msgid "in public domain" msgstr "" #. PAGE BREAK 146 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7270 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><part><chapter><section><para> #: freeculture.xml:7282 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:7292 msgid "of natural authors vs. corporations" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:7293 freeculture.xml:13486 msgid "corporations" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7293 msgid "copyright terms for" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7295 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 <quote>natural</quote> 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><part><chapter><section><para> #: freeculture.xml:7305 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 " "<quote>limited,</quote> we have no evidence that anything will limit them." msgstr "" #. f12 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:7324 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, " "<quote>Indefinitely Renewable Copyright,</quote> loc. cit." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7316 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><part><chapter><section><title> #: freeculture.xml:7338 msgid "Law: Scope" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7339 freeculture.xml:7558 msgid "scope of" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7341 msgid "" "The <quote>scope</quote> 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:7347 msgid "historical shift in copyright coverage of" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7349 msgid "" "In 1790, that scope was very narrow. Copyright covered only <quote>maps, " "charts, and books.</quote> 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 <quote>publish</quote> 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 <quote>derivative works.</quote> 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><part><chapter><section><para> #: freeculture.xml:7362 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 " "<quote>publish</quote> the work, but also the exclusive right of control " "over any <quote>copies</quote> 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 <quote>derivative work</quote> 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7376 msgid "marking of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:7377 msgid "formalities" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7378 msgid "registration requirement of" msgstr "" #. PAGE BREAK 148 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7380 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 " "<emphasis>copyright</emphasis>. 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><part><chapter><section><para> #: freeculture.xml:7395 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:7408 msgid "European" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7410 msgid "" "All of these <quote>formalities</quote> 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><part><chapter><section><para> #: freeculture.xml:7421 msgid "Consider a practical example to understand the scope of these differences." msgstr "" #. f13 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:7433 msgid "" "See Thomas Bender and David Sampliner, <quote>Poets, Pirates, and the " "Creation of American Literature,</quote> 29 <citetitle>New York University " "Journal of International Law and Politics</citetitle> 255 (1997), and James " "Gilraeth, ed., Federal Copyright Records, 1790–1800 (U.S. G.P.O., " "1987)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7426 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><part><chapter><section><para> #: freeculture.xml:7448 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><part><chapter><section><para> #: freeculture.xml:7458 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, <emphasis>every</emphasis> 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><part><chapter><section><para> #: freeculture.xml:7467 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><part><chapter><section><para> #: freeculture.xml:7472 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 <quote>derivative " "rights.</quote> 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><part><chapter><section><para> #: freeculture.xml:7487 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><part><chapter><section><para><footnote><para> #: freeculture.xml:7509 msgid "" "Jonathan Zittrain, <quote>The Copyright Cage,</quote> <citetitle>Legal " "Affairs</citetitle>, 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><part><chapter><section><para> #: freeculture.xml:7499 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 <emphasis>that</emphasis> 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 "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:7531 msgid "Rubenfeld, Jeb" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:7524 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 <quote>copies</quote> and derivative " "works. See Jed Rubenfeld, <quote>The Freedom of Imagination: Copyright's " "Constitutionality,</quote> <citetitle>Yale Law Journal</citetitle> 112 " "(2002): 1–60 (see especially pp. 53–59). <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7519 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><part><chapter><section><para> #: freeculture.xml:7539 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 " "<quote>Mickey Mouse,</quote> 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><part><chapter><section><para> #: freeculture.xml:7547 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><part><chapter><section><title> #: freeculture.xml:7556 msgid "Law and Architecture: Reach" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7557 freeculture.xml:7619 freeculture.xml:7831 msgid "copies as core issue of" msgstr "" #. f16 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:7565 msgid "" "This is a simplification of the law, but not much of one. The law certainly " "regulates more than <quote>copies</quote>—a public performance of a " "copyrighted song, for example, is regulated even though performance per se " "doesn't make a copy; 17 <citetitle>United States Code</citetitle>, section " "106(4). And it certainly sometimes doesn't regulate a <quote>copy</quote>; " "17 <citetitle>United States Code</citetitle>, section 112(a). But the " "presumption under the existing law (which regulates <quote>copies;</quote> " "17 <citetitle>United States Code</citetitle>, section 102) is that if there " "is a copy, there is a right." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7560 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7576 msgid "other property rights vs." msgstr "" #. PAGE BREAK 151 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7579 msgid "" "<quote>Copies.</quote> That certainly sounds like the obvious thing for " "<emphasis>copy</emphasis>right law to regulate. But as with Jack Valenti's " "argument at the start of this chapter, that <quote>creative property</quote> " "deserves the <quote>same rights</quote> as all other property, it is the " "<emphasis>obvious</emphasis> 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 <emphasis>not</emphasis> " "be the trigger for copyright law. More precisely, they should not " "<emphasis>always</emphasis> be the trigger for copyright law." msgstr "" #. f17 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:7598 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><part><chapter><section><para> #: freeculture.xml:7593 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><part><chapter><section><para> #: freeculture.xml:7611 msgid "" "We can see this point abstractly by beginning with this largely empty " "circle." msgstr "" #. type: Content of: <book><part><chapter><section><figure> #: freeculture.xml:7616 msgid "" "<graphic fileref=\"images/1521.svg\" align=\"center\" " "width=\"10em\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7618 msgid "three types of uses of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7620 msgid "copyright applicability altered by technology of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7621 msgid "copyright intent altered by" msgstr "" #. PAGE BREAK 152 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7626 msgid "" "Think about a book in real space, and imagine this circle to represent all " "its potential <emphasis>uses</emphasis>. 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><part><chapter><section><figure> #: freeculture.xml:7640 msgid "" "<graphic fileref=\"images/1531.png\" align=\"center\" " "width=\"10em\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7643 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 diagram in " "figure <xref xrefstyle=\"template:%n\" linkend=\"fig-1541\"/>)." msgstr "" #. type: Content of: <book><part><chapter><section><figure> #: freeculture.xml:7654 msgid "" "<graphic fileref=\"images/1541.svg\" align=\"center\" " "width=\"10em\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7659 msgid "" "Finally, there is a tiny sliver of otherwise regulated copying uses that " "remain unregulated because the law considers these <quote>fair uses.</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7666 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 <quote>fair uses</quote> for public policy (and possibly First " "Amendment) reasons." msgstr "" #. type: Content of: <book><part><chapter><section><figure> #: freeculture.xml:7677 msgid "" "<graphic fileref=\"images/1542.svg\" align=\"center\" " "width=\"10em\"></graphic>" msgstr "" #. PAGE BREAK 154 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7682 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 <quote>fair</quote> regardless of the copyright " "owner's views." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7687 freeculture.xml:7975 freeculture.xml:10261 msgid "on Internet" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7689 freeculture.xml:7770 msgid "Internet burdens on" msgstr "" #. f18 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:7694 msgid "" "I don't mean <quote>nature</quote> 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><part><chapter><section><para> #: freeculture.xml:7691 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><part><chapter><section><para> #: freeculture.xml:7714 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 <emphasis>copyright</emphasis>-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><part><chapter><section><indexterm><primary> #: freeculture.xml:7725 msgid "e-books" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7726 msgid "technological developments and" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7728 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 <emphasis>copyright law</emphasis> 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><part><chapter><section><figure> #: freeculture.xml:7741 msgid "" "<graphic fileref=\"images/1551.svg\" align=\"center\" " "width=\"10em\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7744 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><part><chapter><section><para> #: freeculture.xml:7750 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><part><chapter><section><para> #: freeculture.xml:7759 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 " "<emphasis>any</emphasis> transformation you make of creative work using a " "machine. <quote>Copy and paste</quote> and <quote>cut and paste</quote> " "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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7772 msgid "fair use vs." msgstr "" #. PAGE BREAK 156 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7774 msgid "" "Third, this shift from category 1 to category 2 puts an extraordinary burden " "on category 3 (<quote>fair use</quote>) 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><part><chapter><section><para> #: freeculture.xml:7793 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 <emphasis>unregulated</emphasis>. But " "when everything becomes presumptively regulated, then the protections of " "fair use are not enough." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:7809 msgid "Video Pipeline" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7811 msgid "trailer advertisements of" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7813 msgid "" "The case of Video Pipeline is a good example. Video Pipeline was in the " "business of making <quote>trailer</quote> 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><section><section><indexterm><primary> #: freeculture.xml:7819 freeculture.xml:7894 freeculture.xml:14194 msgid "browsing" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7821 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 <quote>selling by sampling</quote> technique by " "giving on-line stores the same ability to enable <quote>browsing.</quote> " "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><part><chapter><section><para> #: freeculture.xml:7834 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 <quote>fair use</quote> 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:7851 msgid "willful infringement findings in" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:7852 msgid "willful infringement" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7854 msgid "" "Disney countersued—for $100 million in damages. Those damages were " "predicated upon a claim that Video Pipeline had <quote>willfully " "infringed</quote> 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><part><chapter><section><para> #: freeculture.xml:7864 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><part><chapter><section><indexterm><primary> #: freeculture.xml:7872 msgid "first-sale doctrine" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7874 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 " "<quote>first-sale doctrine</quote> 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:7893 msgid "Barnes & Noble" msgstr "" #. PAGE BREAK 158 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7898 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><part><chapter><section><para> #: freeculture.xml:7913 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><part><chapter><section><title> #: freeculture.xml:7922 msgid "Architecture and Law: Force" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7924 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:7929 msgid "technology as automatic enforcer of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:7930 msgid "copyright enforcement controlled by" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7932 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><part><chapter><section><indexterm><primary> #: freeculture.xml:7939 msgid "Casablanca" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:7940 freeculture.xml:8114 msgid "Marx Brothers" msgstr "" #. f19 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:7951 msgid "" "See David Lange, <quote>Recognizing the Public Domain,</quote> " "<citetitle>Law and Contemporary Problems</citetitle> 44 (1981): " "172–73." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7943 msgid "" "There's a famous story about a battle between the Marx Brothers and Warner " "Brothers. The Marxes intended to make a parody of " "<citetitle>Casablanca</citetitle>. 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><part><chapter><section><para><footnote><para> #: freeculture.xml:7960 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> Ibid. See also Vaidhyanathan, " "<citetitle>Copyrights and Copywrongs</citetitle>, 1–3." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7956 msgid "" "This led the Marx Brothers to respond in kind. They warned Warner Brothers " "that the Marx Brothers <quote>were brothers long before you " "were.</quote><placeholder type=\"footnote\" id=\"0\"/> The Marx Brothers " "therefore owned the word <citetitle>brothers</citetitle>, and if Warner " "Brothers insisted on trying to control <citetitle>Casablanca</citetitle>, " "then the Marx Brothers would insist on control over " "<citetitle>brothers</citetitle>." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7970 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><part><chapter><section><para> #: freeculture.xml:7978 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><part><chapter><section><indexterm><primary> #: freeculture.xml:7990 msgid "Adobe eBook Reader" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7992 msgid "Consider the life of my Adobe eBook Reader." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:7995 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><part><chapter><section><figure> #: freeculture.xml:8003 msgid "" "<graphic fileref=\"images/example-adobe-ebook-reader.png\" align=\"center\" " "width=\"50%\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8006 msgid "" "In figure <xref xrefstyle=\"template:%n\" " "linkend=\"fig-example-adobe-ebook-reader\"/> is a picture of an old version " "of my Adobe eBook Reader." msgstr "" #. PAGE BREAK 160 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8011 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: " "<citetitle>Middlemarch</citetitle>, for example, is in the public domain. " "Some of them reproduce content that is not in the public domain: My own book " "<citetitle>The Future of Ideas</citetitle> is not yet within the public " "domain. Consider <citetitle>Middlemarch</citetitle> first. If you click on " "my e-book copy of <citetitle>Middlemarch</citetitle>, you'll see a fancy " "cover, and then a button at the bottom called Permissions." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8024 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><part><chapter><section><figure> #: freeculture.xml:8029 msgid "" "<graphic fileref=\"images/1612.png\" align=\"center\" " "width=\"50%\"></graphic>" msgstr "" #. PAGE BREAK 161 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8033 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 <citetitle>Middlemarch</citetitle> read aloud through the " "computer." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8040 msgid "Aristotle" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8041 msgid "<citetitle>Politics</citetitle>, (Aristotle)" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8043 msgid "" "Here's the e-book for another work in the public domain (including the " "translation): Aristotle's <citetitle>Politics</citetitle>." msgstr "" #. type: Content of: <book><part><chapter><section><figure> #: freeculture.xml:8048 msgid "" "<graphic fileref=\"images/aristotele-ebook.png\" align=\"center\" " "width=\"50%\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8051 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><part><chapter><section><figure> #: freeculture.xml:8057 msgid "" "<graphic fileref=\"images/1622.png\" align=\"center\" " "width=\"50%\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8059 freeculture.xml:9927 msgid "Future of Ideas, The (Lessig)" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8062 msgid "" "Finally (and most embarrassingly), here are the permissions for the original " "e-book version of my last book, <citetitle>The Future of Ideas</citetitle>:" msgstr "" #. type: Content of: <book><part><chapter><section><figure> #: freeculture.xml:8069 msgid "" "<graphic fileref=\"images/1631.png\" align=\"center\" " "width=\"50%\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8072 msgid "No copying, no printing, and don't you dare try to listen to this book!" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:8089 msgid "contracts" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:8082 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. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8075 msgid "" "Now, the Adobe eBook Reader calls these controls " "<quote>permissions</quote>— 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 " "<citetitle>Middlemarch</citetitle> 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><part><chapter><section><para> #: freeculture.xml:8098 msgid "" "The control comes instead from the code—from the technology within " "which the e-book <quote>lives.</quote> Though the e-book says that these are " "permissions, they are not the sort of <quote>permissions</quote> that most " "of us deal with. When a teenager gets <quote>permission</quote> 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><part><chapter><section><para> #: freeculture.xml:8118 msgid "" "These are <emphasis>controls</emphasis>, not permissions. Imagine a world " "where the Marx Brothers sold word processing software that, when you tried " "to type <quote>Warner Brothers,</quote> erased <quote>Brothers</quote> from " "the sentence." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8124 msgid "" "This is the future of copyright law: not so much copyright " "<emphasis>law</emphasis> as copyright <emphasis>code</emphasis>. 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><part><chapter><section><para> #: freeculture.xml:8133 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><part><chapter><section><para> #: freeculture.xml:8140 msgid "" "We've only scratched the surface of this story. Return to the Adobe eBook " "Reader." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8143 msgid "Alice's Adventures in Wonderland (Carroll)" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:8144 msgid "e-book restrictions on" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8146 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 <citetitle>Alice's Adventures in " "Wonderland</citetitle>. 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><part><chapter><section><figure> #: freeculture.xml:8155 msgid "" "<graphic fileref=\"images/1641.png\" align=\"center\" " "width=\"50%\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8159 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 " "<quote>permissions</quote> indicated, not allowed to <quote>read " "aloud</quote>!" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8164 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><part><chapter><section><para> #: freeculture.xml:8172 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><part><chapter><section><para> #: freeculture.xml:8187 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><part><chapter><section><para> #: freeculture.xml:8198 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><part><chapter><section><indexterm><primary> #: freeculture.xml:8201 freeculture.xml:8345 freeculture.xml:8410 freeculture.xml:8522 msgid "Aibo robotic dog" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8202 freeculture.xml:8346 freeculture.xml:8411 freeculture.xml:8523 msgid "robotic dog" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:8203 freeculture.xml:8347 freeculture.xml:8412 freeculture.xml:8524 msgid "Aibo robotic dog produced by" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8205 msgid "" "Consider the robotic dog made by Sony named <quote>Aibo.</quote> 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><part><chapter><section><para> #: freeculture.xml:8210 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><part><chapter><section><para> #: freeculture.xml:8219 msgid "" "<quote>Teach</quote> 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 " "<quote>dog</quote> to make it do new tricks (thus, aibohack.com)." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8226 msgid "hacks" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8228 msgid "" "If you're not a programmer or don't know many programmers, the word " "<citetitle>hack</citetitle> 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, " "<citetitle>hack</citetitle> is a much more positive " "term. <citetitle>Hack</citetitle> 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 <quote>drive,</quote> 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><part><chapter><section><para> #: freeculture.xml:8242 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><part><chapter><section><para> #: freeculture.xml:8249 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><part><chapter><section><para> #: freeculture.xml:8259 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, <emphasis>What possible problem could " "there be with teaching a robot dog to dance?</emphasis>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:8274 msgid "government case against" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8276 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><part><chapter><section><indexterm><primary> #: freeculture.xml:8299 freeculture.xml:10890 msgid "Electronic Frontier Foundation" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:8289 msgid "" "See Pamela Samuelson, <quote>Anticircumvention Rules: Threat to " "Science,</quote> <citetitle>Science</citetitle> 293 (2001): 2028; Brendan " "I. Koerner, <quote>Play Dead: Sony Muzzles the Techies Who Teach a Robot Dog " "New Tricks,</quote> <citetitle>American Prospect</citetitle>, January 2002; " "<quote>Court Dismisses Computer Scientists' Challenge to DMCA,</quote> " "<citetitle>Intellectual Property Litigation Reporter</citetitle>, 11 " "December 2001; Bill Holland, <quote>Copyright Act Raising Free-Speech " "Concerns,</quote> <citetitle>Billboard</citetitle>, May 2001; Janelle Brown, " "<quote>Is the RIAA Running Scared?</quote> Salon.com, April 2001; Electronic " "Frontier Foundation, <quote>Frequently Asked Questions about " "<citetitle>Felten and USENIX</citetitle> v. <citetitle>RIAA</citetitle> " "Legal Case,</quote> available at <ulink " "url=\"http://free-culture.cc/notes/\">link #27</ulink>. <placeholder " "type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8287 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><part><chapter><section><para> #: freeculture.xml:8307 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 <quote>this music cannot " "be copied,</quote> and have a computer respect that command. The technology " "was to be part of a <quote>trusted system</quote> of control that would get " "content owners to trust the system of the Internet much more." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8317 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><part><chapter><section><para> #: freeculture.xml:8324 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><part><chapter><section><para> #: freeculture.xml:8330 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><part><chapter><section><para> #: freeculture.xml:8338 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><part><chapter><section><para> #: freeculture.xml:8349 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><part><chapter><section><blockquote><para> #: freeculture.xml:8356 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><part><chapter><section><para> #: freeculture.xml:8365 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><part><chapter><section><blockquote><para> #: freeculture.xml:8371 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 (<quote>DMCA</quote>)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8379 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><part><chapter><section><para> #: freeculture.xml:8384 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 <emphasis>code</emphasis> to modify the original " "<emphasis>code</emphasis> of the Internet, to reestablish some protection " "for copyright owners." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8395 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, " "<emphasis>legal code</emphasis> intended to buttress <emphasis>software " "code</emphasis> which itself was intended to support the <emphasis>legal " "code of copyright</emphasis>." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8402 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><part><chapter><section><para> #: freeculture.xml:8414 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><part><chapter><section><para> #: freeculture.xml:8426 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><part><chapter><section><blockquote><para><footnote><para><indexterm><primary> #: freeculture.xml:8433 freeculture.xml:8468 msgid "Rogers, Fred" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8444 freeculture.xml:8483 freeculture.xml:8511 msgid "Conrad, Paul" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8436 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 " "<quote><citetitle>Mr. Rogers</citetitle>,</quote> for example, had testified " "in that case that he wanted people to feel free to tape Mr. Rogers' " "Neighborhood. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:8463 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <citetitle>Sony Corporation of " "America</citetitle> v. <citetitle>Universal City Studios, Inc</citetitle>., " "464 U.S. 417, 455 fn. 27 (1984). Rogers never changed his view about the " "VCR. See James Lardner, <citetitle>Fast Forward: Hollywood, the Japanese, " "and the Onslaught of the VCR</citetitle> (New York: W. W. Norton, 1987), " "270–71. <placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:8448 msgid "" "Some public stations, as well as commercial stations, program the " "<quote>Neighborhood</quote> 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 " "<quote>Neighborhood</quote> off-the-air, and I'm speaking for the " "<quote>Neighborhood</quote> 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 <quote>You are an important " "person just the way you are. You can make healthy decisions.</quote> 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><part><chapter><section><para> #: freeculture.xml:8474 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><part><chapter><section><para> #: freeculture.xml:8479 msgid "" "This led Conrad to draw the cartoon in figure <xref " "xrefstyle=\"template:%n\" linkend=\"fig-1711-vcr-handgun-cartoonfig\"/>, " "which we can adopt to the DMCA. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8486 msgid "No argument I have can top this picture, but let me try to get close." msgstr "" #. type: Content of: <book><part><chapter><section><figure><title> #: freeculture.xml:8489 msgid "" "— On which item have the courts ruled that manufacturers and retailers " "be held responsible for having supplied the equipment?" msgstr "" #. type: Content of: <book><part><chapter><section><figure> #: freeculture.xml:8492 msgid "" "<graphic fileref=\"images/vcr-comic.png\" align=\"center\" " "width=\"55%\"></graphic>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8495 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8502 msgid "handguns" msgstr "" #. PAGE BREAK 171 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8504 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><part><chapter><section><para> #: freeculture.xml:8513 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: <emphasis>No one ever died from copyright " "circumvention</emphasis>. 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><part><chapter><section><para> #: freeculture.xml:8526 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><part><chapter><section><para> #: freeculture.xml:8534 msgid "" "This is how <emphasis>code</emphasis> becomes <emphasis>law</emphasis>. 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><part><chapter><section><para> #: freeculture.xml:8546 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><part><chapter><section><para><footnote><para> #: freeculture.xml:8565 msgid "" "For an early and prescient analysis, see Rebecca Tushnet, <quote>Legal " "Fictions, Copyright, Fan Fiction, and a New Common Law,</quote> " "<citetitle>Loyola of Los Angeles Entertainment Law Journal</citetitle> 17 " "(1997): 651." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8559 msgid "" "For example, imagine you were part of a <citetitle>Star Trek</citetitle> 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><part><chapter><section><para> #: freeculture.xml:8571 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><part><chapter><section><para> #: freeculture.xml:8579 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><part><chapter><section><para> #: freeculture.xml:8589 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><part><chapter><section><title> #: freeculture.xml:8598 msgid "Market: Concentration" msgstr "" #. PAGE BREAK 173 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8600 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><part><chapter><section><para> #: freeculture.xml:8618 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><part><chapter><section><para> #: freeculture.xml:8625 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 85 percent of the media." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8636 msgid "These changes are of two sorts: the scope of concentration, and its nature." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8640 msgid "BMG" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8641 freeculture.xml:10037 msgid "EMI" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8642 msgid "McCain, John" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8643 freeculture.xml:10044 msgid "Universal Music Group" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8644 msgid "Warner Music Group" msgstr "" #. f25 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:8650 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><part><chapter><section><para><footnote><para> #: freeculture.xml:8657 msgid "" "Lynette Holloway, <quote>Despite a Marketing Blitz, CD Sales Continue to " "Slide,</quote> <citetitle>New York Times</citetitle>, 23 December 2002." msgstr "" #. f27 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:8663 msgid "" "Molly Ivins, <quote>Media Consolidation Must Be Stopped,</quote> " "<citetitle>Charleston Gazette</citetitle>, 31 May 2003." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8646 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, " "<quote>five companies control 85 percent of our media " "sources.</quote><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 <quote>five largest cable companies pipe " "programming to 74 percent of the cable subscribers " "nationwide.</quote><placeholder type=\"footnote\" id=\"2\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:8667 msgid "ownership consolidation in" msgstr "" #. PAGE BREAK 174 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8669 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 <emphasis>one</emphasis> 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:8680 msgid "ownership consolidation of" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8682 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><part><chapter><section><blockquote><para><footnote><para><indexterm><primary> #: freeculture.xml:8692 freeculture.xml:8713 msgid "Fallows, James" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8694 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," msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:8711 msgid "" "James Fallows, <quote>The Age of Murdoch,</quote> <citetitle>Atlantic " "Monthly</citetitle> (September 2003): 89. <placeholder type=\"indexterm\" " "id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:8700 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><part><chapter><section><para> #: freeculture.xml:8720 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><part><chapter><section><figure> #: freeculture.xml:8727 msgid "" "<graphic fileref=\"images/pattern-modern-media-ownership.png\" " "align=\"center\" width=\"100%\"></graphic>" msgstr "" #. PAGE BREAK 175 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8731 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><part><chapter><section><para> #: freeculture.xml:8736 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><part><chapter><section><para> #: freeculture.xml:8742 msgid "" "Here's a representative story that begins to suggest how this integration " "may matter." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8745 msgid "Lear, Norman" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8747 freeculture.xml:8810 msgid "All in the Family" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8749 msgid "" "In 1969, Norman Lear created a pilot for <citetitle>All in the " "Family</citetitle>. 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><part><chapter><section><para><footnote><para> #: freeculture.xml:8761 msgid "" "Leonard Hill, <quote>The Axis of Access,</quote> remarks before Weidenbaum " "Center Forum, <quote>Entertainment Economics: The Movie Industry,</quote> " "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><part><chapter><section><para> #: freeculture.xml:8756 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><part><chapter><section><para> #: freeculture.xml:8772 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 " "<quote>independent</quote> of the networks." msgstr "" #. f30 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:8791 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><part><chapter><section><para> #: freeculture.xml:8781 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. <quote>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.</quote> <quote>In 1992, 16 new series were " "produced independently of conglomerate control, last year there was " "one.</quote><placeholder type=\"footnote\" id=\"0\"/> In 2002, 75 percent of " "prime time television was owned by the networks that ran it. <quote>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%.</quote><placeholder type=\"footnote\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8812 msgid "" "Today, another Norman Lear with another <citetitle>All in the " "Family</citetitle> 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><part><chapter><section><indexterm><primary> #: freeculture.xml:8817 msgid "Diller, Barry" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8818 msgid "Moyers, Bill" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8820 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," msgstr "" #. f32 #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:8835 msgid "" "<quote>Barry Diller Takes on Media Deregulation,</quote> <citetitle>Now with " "Bill Moyers</citetitle>, Bill Moyers, 25 April 2003, edited transcript " "available at <ulink url=\"http://free-culture.cc/notes/\">link #31</ulink>." msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:8826 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:8841 msgid "media concentration and" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8843 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><part><chapter><section><indexterm><primary> #: freeculture.xml:8854 msgid "Clark, Kim B." msgstr "" #. f33 #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:8863 msgid "" "Clayton M. Christensen, <citetitle>The Innovator's Dilemma: The " "Revolutionary National Bestseller that Changed the Way We Do " "Business</citetitle> (Cambridge: Harvard Business School Press, " "1997). Christensen acknowledges that the idea was first suggested by Dean " "Kim Clark. See Kim B. Clark, <quote>The Interaction of Design Hierarchies " "and Market Concepts in Technological Evolution,</quote> <citetitle>Research " "Policy</citetitle> 14 (1985): 235–51. For a more recent study, see " "Richard Foster and Sarah Kaplan, <citetitle>Creative Destruction: Why " "Companies That Are Built to Last Underperform the Market—and How to " "Successfully Transform Them</citetitle> (New York: Currency/Doubleday, " "2001)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8856 msgid "" "Economics itself offers a parallel that explains why this integration " "affects creativity. Clay Christensen has written about the " "<quote>Innovator's Dilemma</quote>: 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><part><chapter><section><para> #: freeculture.xml:8880 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><part><chapter><section><para> #: freeculture.xml:8886 msgid "" "But there is a quintessentially obvious example that does strongly suggest " "the concern." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8890 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:8894 msgid "criminal justice system" msgstr "" #. PAGE BREAK 178 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8896 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><part><chapter><section><para> #: freeculture.xml:8915 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><part><chapter><section><indexterm><primary> #: freeculture.xml:8923 msgid "Nick and Norm anti-drug campaign" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8925 msgid "" "Beginning in 1998, the Office of National Drug Control Policy launched a " "media campaign as part of the <quote>war on drugs.</quote> 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><part><chapter><section><para> #: freeculture.xml:8937 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><part><chapter><section><para> #: freeculture.xml:8941 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><part><chapter><section><para> #: freeculture.xml:8947 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:8955 msgid "on television advertising bans" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:8956 msgid "controversy avoided by" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:8969 msgid "Comcast" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:8970 msgid "Marijuana Policy Project" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:8971 msgid "NBC" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:8972 msgid "WJOA" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:8973 msgid "WRC" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:8968 msgid "" "<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\"/> 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 <quote>against " "[their] policy.</quote> 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, <quote>On the Issue of an Iraq War, Advocacy Ads Meet " "with Rejection from TV Networks,</quote> <citetitle>New York " "Times</citetitle>, 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, <quote>Ad Hoc " "Access: The Regulation of Editorial Advertising on Television and " "Radio,</quote> <citetitle>Yale Law and Policy Review</citetitle> 6 (1988): " "449–79, and for a more recent summary of the stance of the FCC and the " "courts, see <citetitle>Radio-Television News Directors " "Association</citetitle> v. <citetitle>FCC</citetitle>, 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, <quote>Antidiesel Group Fuming After Muni Rejects " "Ad,</quote> SFGate.com, 16 June 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #32</ulink>. The ground was that " "the criticism was <quote>too controversial.</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:8958 msgid "" "No. You cannot. Television stations have a general policy of avoiding " "<quote>controversial</quote> 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><part><chapter><section><para> #: freeculture.xml:9007 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><part><chapter><section><title> #: freeculture.xml:9020 msgid "Together" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9022 msgid "" "There is something innocent and obvious about the claim of the copyright " "warriors that the government should <quote>protect my property.</quote> 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><part><chapter><section><para> #: freeculture.xml:9028 msgid "" "But when we see how dramatically this <quote>property</quote> 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 <quote>property</quote> 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><part><chapter><section><para> #: freeculture.xml:9044 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><part><chapter><section><para> #: freeculture.xml:9050 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><part><chapter><section><para> #: freeculture.xml:9062 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 " "<emphasis>reductions</emphasis> 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><part><chapter><section><para> #: freeculture.xml:9074 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: <emphasis>Never in our " "history have fewer had a legal right to control more of the development of " "our culture than now</emphasis>." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:9098 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> Siva Vaidhyanathan captures a " "similar point in his <quote>four surrenders</quote> of copyright law in the " "digital age. See Vaidhyanathan, 159–60." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9083 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. <emphasis>Never</emphasis> 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><part><chapter><section><para> #: freeculture.xml:9104 msgid "" "<emphasis role='strong'>This has been</emphasis> a long chapter. Its point " "can now be briefly stated." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9108 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><part><chapter><section><informaltable><tgroup><thead><row><entry> #: freeculture.xml:9120 freeculture.xml:9157 msgid "PUBLISH" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><thead><row><entry> #: freeculture.xml:9121 freeculture.xml:9158 freeculture.xml:9196 freeculture.xml:9228 msgid "TRANSFORM" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:9126 freeculture.xml:9163 freeculture.xml:9201 freeculture.xml:9233 msgid "Commercial" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:9127 freeculture.xml:9164 freeculture.xml:9165 freeculture.xml:9202 freeculture.xml:9203 freeculture.xml:9234 freeculture.xml:9235 freeculture.xml:9239 freeculture.xml:9240 msgid "©" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:9128 freeculture.xml:9132 freeculture.xml:9133 freeculture.xml:9169 freeculture.xml:9170 freeculture.xml:9208 msgid "Free" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:9131 freeculture.xml:9168 freeculture.xml:9206 freeculture.xml:9238 msgid "Noncommercial" msgstr "" #. PAGE BREAK 182 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9140 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><part><chapter><section><para> #: freeculture.xml:9149 msgid "By the end of the nineteenth century, the law had changed to this:" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9177 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><part><chapter><section><para> #: freeculture.xml:9183 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><part><chapter><section><informaltable><tgroup><thead><row><entry> #: freeculture.xml:9195 freeculture.xml:9227 msgid "COPY" msgstr "" #. type: Content of: <book><part><chapter><section><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:9207 msgid "© / Free" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9215 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><part><chapter><section><para> #: freeculture.xml:9247 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><part><chapter><section><para> #: freeculture.xml:9255 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><part><chapter><section><para> #: freeculture.xml:9261 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 <xref xrefstyle=\"select: labelnumber\" linkend=\"recorders\"/> and " "<xref xrefstyle=\"select: labelnumber\" linkend=\"transformers\"/>, 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 "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:9279 msgid "legal realist movement" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:9279 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> 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, <quote>The Disintegration of Property,</quote> in " "<citetitle>Nomos XXII: Property</citetitle>, J. Roland Pennock and John W. " "Chapman, eds. (New York: New York University Press, 1980)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9273 msgid "" "The issue is therefore not simply whether copyright is property. Of course " "copyright is a kind of <quote>property,</quote> 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 <quote>copyright</quote> did not control <emphasis>at " "all</emphasis> 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><part><chapter><section><para> #: freeculture.xml:9298 msgid "" "We achieved that free culture because our law respected important limits on " "the scope of the interests protected by <quote>property.</quote> The very " "birth of <quote>copyright</quote> as a statutory right recognized those " "limits, by granting copyright owners protection for a limited time only (the " "story of chapter <xref xrefstyle=\"select: labelnumber\" " "linkend=\"founders\"/>). The tradition of <quote>fair use</quote> 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 <xref xrefstyle=\"select: labelnumber\" " "linkend=\"recorders\"/>). Adding statutory rights where markets might stifle " "innovation is another familiar limit on the property right that copyright is " "(chapter <xref xrefstyle=\"select: labelnumber\" " "linkend=\"transformers\"/>). 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 <xref xrefstyle=\"select: " "labelnumber\" linkend=\"collectors\"/>). 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><part><chapter><section><para> #: freeculture.xml:9321 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><part><title> #: freeculture.xml:9338 msgid "Puzzles" msgstr "" #. type: Content of: <book><part><chapter><title> #: freeculture.xml:9342 msgid "Chapter Eleven: Chimera" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:9343 msgid "chimeras" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:9344 msgid "Wells, H. G." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:9345 msgid "<quote>Country of the Blind, The</quote> (Wells)" msgstr "" #. f1. #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:9353 msgid "" "H. G. Wells, <quote>The Country of the Blind</quote> (1904, 1911). See " "H. G. Wells, <citetitle>The Country of the Blind and Other " "Stories</citetitle>, Michael Sherborne, ed. (New York: Oxford University " "Press, 1996)." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9348 msgid "" "<emphasis role='strong'>In a well-known</emphasis> 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 <quote>sweet water, pasture, an even " "climate, slopes of rich brown soil with tangles of a shrub that bore an " "excellent fruit.</quote> But the villagers are all blind. Nunez takes this " "as an opportunity. <quote>In the Country of the Blind,</quote> he tells " "himself, <quote>the One-Eyed Man is King.</quote> So he resolves to live " "with the villagers to explore life as a king." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9365 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 " "<quote>blind.</quote> They don't have the word " "<citetitle>blind</citetitle>. 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. <quote><quote>You don't understand,</quote> " "he cried, in a voice that was meant to be great and resolute, and which " "broke. <quote>You are blind and I can see. Leave me alone!</quote></quote>" msgstr "" #. PAGE BREAK 187 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9377 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 <quote>the most beautiful thing in the whole " "of creation,</quote> understands the beauty of sight. Nunez's description of " "what he sees <quote>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.</quote> <quote>She " "did not believe,</quote> Wells tells us, and <quote>she could only half " "understand, but she was mysteriously delighted.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9388 msgid "" "When Nunez announces his desire to marry his <quote>mysteriously " "delighted</quote> love, the father and the village object. <quote>You see, " "my dear,</quote> her father instructs, <quote>he's an idiot. He has " "delusions. He can't do anything right.</quote> They take Nunez to the " "village doctor." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9394 msgid "" "After a careful examination, the doctor gives his opinion. <quote>His brain " "is affected,</quote> he reports." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9398 msgid "" "<quote>What affects it?</quote> the father asks. <quote>Those queer things " "that are called the eyes … are diseased … in such a way as to " "affect his brain.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9403 msgid "" "The doctor continues: <quote>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].</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9409 msgid "" "<quote>Thank Heaven for science!</quote> 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.)" msgstr "" #. PAGE BREAK 188 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9415 msgid "" "<emphasis role='strong'>It sometimes</emphasis> happens that the eggs of " "twins fuse in the mother's womb. That fusion produces a " "<quote>chimera.</quote> 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. <quote>But the DNA shows with 100 percent certainty that she was " "not the person whose blood was at the scene. …</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9429 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 <quote>person</quote> should " "reflect this reality." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9437 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, <quote>the copyright wars,</quote> the more I think we're dealing " "with a chimera. For example, in the battle over the question <quote>What is " "p2p file sharing?</quote> both sides have it right, and both sides have it " "wrong. One side says, <quote>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.</quote> 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><part><chapter><para> #: freeculture.xml:9451 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 " "<quote>friends</quote> beyond recognition to say <quote>my ten thousand best " "friends</quote> can get access. Whether or not sharing my music with my best " "friend is what <quote>we have always been allowed to do,</quote> we have not " "always been allowed to share music with <quote>our ten thousand best " "friends.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9460 msgid "" "Likewise, when the other side says, <quote>File sharing is just like walking " "into a Tower Records and taking a CD off the shelf and walking out with " "it,</quote> 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><part><chapter><para> #: freeculture.xml:9471 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><part><chapter><para> #: freeculture.xml:9481 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><part><chapter><section><indexterm><primary> #: freeculture.xml:9497 freeculture.xml:9788 freeculture.xml:10891 msgid "ISPs (Internet service providers), user identities revealed by" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:9528 msgid "Conyers, John, Jr." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:9529 freeculture.xml:10285 msgid "Berman, Howard L." msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:9497 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> For an excellent summary, see the " "report prepared by GartnerG2 and the Berkman Center for Internet and Society " "at Harvard Law School, <quote>Copyright and Digital Media in a Post-Napster " "World,</quote> 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, " "<quote>House Bill Aims to Up Stakes on Piracy,</quote> <citetitle>Los " "Angeles Times</citetitle>, 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 " "<citetitle>RIAA</citetitle> v. <citetitle>Verizon Internet Services (In " "re. Verizon Internet Services)</citetitle>, 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, " "<quote>Downloading Could Lead to Fines,</quote> 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, <quote>RIAA Steps Up Bid to Force BC, MIT to " "Name Students,</quote> <citetitle>Boston Globe</citetitle>, 8 August 2003, " "D3, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#36</ulink>. <placeholder type=\"indexterm\" id=\"1\"/> <placeholder " "type=\"indexterm\" id=\"2\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9488 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><part><chapter><para> #: freeculture.xml:9535 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><part><chapter><para> #: freeculture.xml:9542 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 " "<emphasis>either</emphasis> 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><part><chapter><para> #: freeculture.xml:9554 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><part><chapter><para> #: freeculture.xml:9562 msgid "" "I'm not talking about the opportunities for kids to <quote>steal</quote> " "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><part><chapter><blockquote><para> #: freeculture.xml:9575 msgid "" "eMusic opposes music piracy. We are a distributor of copyrighted material, " "and we want to protect those rights." msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:9579 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><part><chapter><blockquote><para><footnote><para> #: freeculture.xml:9596 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><part><chapter><blockquote><para> #: freeculture.xml:9586 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><part><chapter><section><indexterm><primary> #: freeculture.xml:9610 freeculture.xml:9988 msgid "Vivendi Universal" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9607 msgid "" "In April 2001, eMusic.com was purchased by Vivendi Universal, one of " "<quote>the major labels.</quote> Its position on these matters has now " "changed. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9613 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><part><chapter><title> #: freeculture.xml:9621 msgid "Chapter Twelve: Harms" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9623 msgid "" "<emphasis role='strong'>To fight</emphasis> <quote>piracy,</quote> to " "protect <quote>property,</quote> 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><part><chapter><para> #: freeculture.xml:9631 msgid "" "My aim so far has been to describe the consequences of this war, in " "particular, the consequences for <quote>free culture.</quote> But my aim now " "is to extend this description of consequences into an argument. Is this war " "justified?" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9637 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 <quote>intellectual property</quote> is at its greatest " "in our history." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9645 msgid "" "Yet <quote>common sense</quote> 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 <quote>piracy</quote> still has play." msgstr "" #. PAGE BREAK 193 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:9653 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><part><chapter><section><title> #: freeculture.xml:9660 msgid "Constraining Creators" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9662 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:9676 msgid "digital sharing within" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9679 msgid "" "This digital <quote>capturing and sharing</quote> 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 <quote>capturing and sharing</quote> 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><part><chapter><section><para> #: freeculture.xml:9690 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><part><chapter><section><para> #: freeculture.xml:9700 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><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:9710 freeculture.xml:9734 msgid "WorldCom" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:9713 msgid "doctors malpractice claims against" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:9729 msgid "" "See Lynne W. Jeter, <citetitle>Disconnected: Deceit and Betrayal at " "WorldCom</citetitle> (Hoboken, N.J.: John Wiley & Sons, 2003), 176, 204; " "for details of the settlement, see MCI press release, <quote>MCI Wins " "U.S. District Court Approval for SEC Settlement</quote> (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><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:9751 msgid "tort reform" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:9752 msgid "Bush, George W." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:9742 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, <quote>Measure Stalls in Senate: <quote>We'll Be " "Back,</quote> Say Tort Reformers,</quote> amednews.com, 28 July 2003, " "available at <ulink url=\"http://free-culture.cc/notes/\">link #38</ulink>, " "and <quote>Senate Turns Back Malpractice Caps,</quote> 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\"/> <placeholder " "type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9716 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 <xref " "xrefstyle=\"select: labelnumber\" linkend=\"catalogs\"/> 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?" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:9758 msgid "art, underground" msgstr "" #. f3. #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:9779 msgid "" "See Danit Lidor, <quote>Artists Just Wanna Be Free,</quote> " "<citetitle>Wired</citetitle>, 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><part><chapter><section><para> #: freeculture.xml:9760 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 " "<quote>pirates.</quote> 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 <quote>illegal " "art</quote> tour the United States.<placeholder type=\"footnote\" id=\"0\"/> " "In what does their <quote>illegality</quote> consist? In the act of mixing " "the culture around us with an expression that is critical or reflective." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9790 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 <xref xrefstyle=\"select: " "labelnumber\" linkend=\"property-i\"/>. 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><part><chapter><section><para> #: freeculture.xml:9803 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><part><chapter><section><para> #: freeculture.xml:9814 msgid "" "Lawyers rarely see this because lawyers are rarely empirical. As I described " "in chapter <xref xrefstyle=\"select: labelnumber\" linkend=\"recorders\"/>, " "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><part><chapter><section><para> #: freeculture.xml:9825 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><part><chapter><section><para> #: freeculture.xml:9835 msgid "" "Judges and lawyers can tell themselves that fair use provides adequate " "<quote>breathing room</quote> 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 <quote>law</quote> with which judges comfort themselves." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9846 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 <quote>copyright</quote> 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><part><chapter><section><para> #: freeculture.xml:9857 msgid "As Jed Horovitz, the businessman behind Video Pipeline, said to me," msgstr "" #. PAGE BREAK 197 #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:9861 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, <quote>This has been cleared.</quote> 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><part><chapter><section><title> #: freeculture.xml:9874 msgid "Constraining Innovators" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:9875 msgid "innovation hampered by" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:9876 msgid "industry establishment opposed to" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9879 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><part><chapter><section><para> #: freeculture.xml:9888 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, " "<xref xrefstyle=\"select: pagenumber\" linkend=\"innovators\"/> pages into a " "book like this), then you can see this other aspect by substituting " "<quote>free market</quote> every place I've spoken of <quote>free " "culture.</quote> The point is the same, even if the interests affecting " "culture are more fundamental." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9899 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><part><chapter><section><indexterm><primary> #: freeculture.xml:9912 freeculture.xml:10033 freeculture.xml:10039 msgid "Barry, Hank" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:9913 freeculture.xml:10045 msgid "venture capitalists" msgstr "" #. PAGE BREAK 198 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9915 msgid "" "This is the single most dramatic effect of the shift in regulatory strategy " "that I described in chapter <xref xrefstyle=\"select: labelnumber\" " "linkend=\"property-i\"/>. 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 <quote>nuclear pall</quote> that has fallen over the " "Valley—has been learned." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9930 msgid "" "Consider one example to make the point, a story whose beginning I told in " "<citetitle>The Future of Ideas</citetitle> and which has progressed in a way " "that even I (pessimist extraordinaire) would never have predicted." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:9934 msgid "MP3.com" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:9935 msgid "my.mp3.com" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:9936 msgid "Roberts, Michael" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9938 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:9946 msgid "preference data on" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9948 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." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9955 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><part><chapter><section><para> #: freeculture.xml:9967 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><part><chapter><section><para> #: freeculture.xml:9977 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><part><chapter><section><indexterm><secondary> #: freeculture.xml:9989 freeculture.xml:10034 msgid "distribution technology targeted in" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:9994 freeculture.xml:10106 msgid "outsize penalties of" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:9996 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><part><chapter><section><para> #: freeculture.xml:10006 msgid "That part of the story I have told before. Now consider its conclusion." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10009 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><part><chapter><section><para> #: freeculture.xml:10020 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><part><chapter><section><indexterm><primary> #: freeculture.xml:10035 msgid "BMW" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:10036 msgid "cars, MP3 sound systems in" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:10038 msgid "Hummer, John" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:10040 msgid "Hummer Winblad" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:10041 msgid "MP3 players" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:10042 msgid "venture capital for" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para><indexterm><primary> #: freeculture.xml:10043 freeculture.xml:10089 msgid "Needleman, Rafe" msgstr "" #. f4. #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10053 msgid "" "See Joseph Menn, <quote>Universal, EMI Sue Napster Investor,</quote> " "<citetitle>Los Angeles Times</citetitle>, 23 April 2003. For a parallel " "argument about the effects on innovation in the distribution of music, see " "Janelle Brown, <quote>The Music Revolution Will Not Be Digitized,</quote> " "Salon.com, 1 June 2001, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #42</ulink>. See also Jon " "Healey, <quote>Online Music Services Besieged,</quote> <citetitle>Los " "Angeles Times</citetitle>, 28 May 2001." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10047 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 <citetitle>Business 2.0</citetitle>, " "Rafe Needleman describes a discussion with BMW:" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:10085 msgid "" "Rafe Needleman, <quote>Driving in Cars with MP3s,</quote> " "<citetitle>Business 2.0</citetitle>, 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><part><chapter><section><blockquote><para> #: freeculture.xml:10076 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><part><chapter><section><para> #: freeculture.xml:10097 msgid "" "This is the world of the mafia—filled with <quote>your money or your " "life</quote> 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:10105 msgid "transaction cost of" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:10107 msgid "legal murkiness on" msgstr "" #. PAGE BREAK 201 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10111 msgid "" "The point is not that businesses should have a right to start illegal " "enterprises. The point is the definition of <quote>illegal.</quote> 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><part><chapter><section><para> #: freeculture.xml:10125 msgid "" "The point is directly parallel to the crunchy-lefty point about fair " "use. Whatever the <quote>real</quote> 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 overregulated-regulated market." msgstr "" #. PAGE BREAK 202 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10137 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." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10158 msgid "" "<emphasis role='strong'>The uncertainty</emphasis> 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><part><chapter><section><para> #: freeculture.xml:10165 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 " "<quote>bug.</quote> 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 <quote>piracy,</quote> then, this " "response says, we should break the kneecaps of the Internet." msgstr "" #. f6. #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10180 msgid "" "<quote>Copyright and Digital Media in a Post-Napster World,</quote> " "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><part><chapter><section><para><footnote><para> #: freeculture.xml:10193 msgid "GartnerG2, 26–27." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10176 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 <quote>broadcast flag</quote> 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><part><chapter><section><para> #: freeculture.xml:10197 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:10206 freeculture.xml:12141 msgid "Intel" msgstr "" #. f8. #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10212 msgid "" "See David McGuire, <quote>Tech Execs Square Off Over Piracy,</quote> " "Newsbytes, February 2002 (Entertainment)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10208 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><part><chapter><section><para> #: freeculture.xml:10220 msgid "" "<emphasis role='strong'>There is one</emphasis> 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><part><chapter><section><para> #: freeculture.xml:10225 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 "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:10243 msgid "Digital Copyright (Litman)" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10241 msgid "" "Jessica Litman, <citetitle>Digital Copyright</citetitle> (Amherst, N.Y.: " "Prometheus Books, 2001). <placeholder type=\"indexterm\" id=\"0\"/> " "<placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10235 msgid "" "As I described in chapter <xref xrefstyle=\"select: labelnumber\" " "linkend=\"property-i\"/>, despite this feature of copyright as regulation, " "and subject to important qualifications outlined by Jessica Litman in her " "book <citetitle>Digital Copyright</citetitle>,<placeholder type=\"footnote\" " "id=\"0\"/> overall this history of copyright is not bad. As chapter <xref " "xrefstyle=\"select: labelnumber\" linkend=\"property-i\"/> 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><part><chapter><section><para> #: freeculture.xml:10254 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:10260 msgid "radio on" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:10265 msgid "Grokster, Ltd." msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10265 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> The only circuit court exception " "is found in <citetitle>Recording Industry Association of America " "(RIAA)</citetitle> v. <citetitle>Diamond Multimedia Systems</citetitle>, 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 " "<citetitle>Metro-Goldwyn-Mayer Studios, " "Inc</citetitle>. v. <citetitle>Grokster, Ltd</citetitle>., 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><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:10284 msgid "Tauzin, Billy" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:10286 msgid "Hollings, Fritz" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10284 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> <placeholder " "type=\"indexterm\" id=\"3\"/> 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 <quote>broadcast " "flag</quote> 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, <quote>Copyright and " "Digital Media in a Post-Napster World,</quote> 27 June 2003, 33–34, " "available at <ulink url=\"http://free-culture.cc/notes/\">link #44</ulink>." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10263 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:10308 msgid "Monroe, Marilyn" msgstr "" #. PAGE BREAK 204 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10313 msgid "" "As I described in chapter <xref xrefstyle=\"select: labelnumber\" " "linkend=\"pirates\"/>, when a radio station plays a song, the recording " "artist doesn't get paid for that <quote>radio performance</quote> unless he " "or she is also the composer. So, for example if Marilyn Monroe had recorded " "a version of <quote>Happy Birthday</quote>—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 <quote>Happy Birthday</quote> would get some money, whereas " "Marilyn Monroe would not." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10324 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><part><chapter><section><para> #: freeculture.xml:10336 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 " "<quote>tune in</quote> 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><part><chapter><section><para> #: freeculture.xml:10345 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><part><chapter><section><para> #: freeculture.xml:10361 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><part><chapter><section><blockquote><para><footnote><para> #: freeculture.xml:10385 msgid "Lessing, 239." msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:10371 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><part><chapter><section><para><footnote><para> #: freeculture.xml:10395 msgid "Ibid., 229." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10390 msgid "" "This potential for FM radio was never realized—not because Armstrong " "was wrong about the technology, but because he underestimated the power of " "<quote>vested interests, habits, customs and legislation</quote><placeholder " "type=\"footnote\" id=\"0\"/> to retard the growth of this competing " "technology." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10400 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:10409 msgid "on radio" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:10413 msgid "Internet radio hampered by" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:10414 freeculture.xml:10567 msgid "on Internet radio fees" msgstr "" #. PAGE BREAK 206 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10417 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 <quote>Happy Birthday</quote> on the " "air, <emphasis>Internet radio does</emphasis>. 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><part><chapter><section><para><footnote><para><indexterm><primary> #: freeculture.xml:10456 msgid "CARP (Copyright Arbitration Royalty Panel)" msgstr "" #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10439 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, <quote>Copyright as " "Entry Policy: The Case of Digital Distribution,</quote> <citetitle>Antitrust " "Bulletin</citetitle> (Summer/Fall 2002): 461: <quote>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.</quote> <placeholder type=\"indexterm\" id=\"0\"/> " "<placeholder type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10432 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><part><chapter><section><para> #: freeculture.xml:10468 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 <emphasis>every listening " "transaction</emphasis>:" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10476 msgid "name of the service;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10479 msgid "channel of the program (AM/FM stations use station ID);" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10482 msgid "type of program (archived/looped/live);" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10485 msgid "date of transmission;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10488 msgid "time of transmission;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10491 msgid "time zone of origination of transmission;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10494 msgid "numeric designation of the place of the sound recording within the program;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10497 msgid "duration of transmission (to nearest second);" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10500 msgid "sound recording title;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10503 msgid "ISRC code of the recording;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10506 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><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10509 msgid "featured recording artist;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10512 msgid "retail album title;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10515 msgid "recording label;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10518 msgid "UPC code of the retail album;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10521 msgid "catalog number;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10524 msgid "copyright owner information;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10527 msgid "musical genre of the channel or program (station format);" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10530 msgid "name of the service or entity;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10533 msgid "channel or program;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10536 msgid "date and time that the user logged in (in the user's time zone);" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10539 msgid "date and time that the user logged out (in the user's time zone);" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10542 msgid "time zone where the signal was received (user);" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10545 msgid "unique user identifier;" msgstr "" #. type: Content of: <book><part><chapter><section><orderedlist><listitem><para> #: freeculture.xml:10548 msgid "the country in which the user received the transmissions." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10553 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 <emphasis>type of copyright fee</emphasis> that terrestrial radio does " "not." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10561 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><section><section><indexterm><primary> #: freeculture.xml:10565 freeculture.xml:15433 msgid "Real Networks" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10571 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><part><chapter><section><blockquote><para> #: freeculture.xml:10577 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, … <quote>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. …</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:10593 msgid "" "And the RIAA experts said, <quote>Well, we don't really model this as an " "industry with thousands of webcasters, <emphasis>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>.</quote> (Emphasis added.)" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10605 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><part><chapter><section><title> #: freeculture.xml:10621 msgid "Corrupting Citizens" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10623 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><part><chapter><section><para> #: freeculture.xml:10629 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><part><chapter><section><para><footnote><para> #: freeculture.xml:10638 msgid "" "Mike Graziano and Lee Rainie, <quote>The Music Downloading Deluge,</quote> " "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><part><chapter><section><para> #: freeculture.xml:10634 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 <citetitle>The New York Times</citetitle>, 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><part><chapter><section><para><footnote><para> #: freeculture.xml:10672 msgid "" "Alex Pham, <quote>The Labels Strike Back: N.Y. Girl Settles RIAA " "Case,</quote> <citetitle>Los Angeles Times</citetitle>, 10 September 2003, " "Business." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10659 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 "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:10683 msgid "alcohol prohibition" msgstr "" #. f17. #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10695 msgid "" "Jeffrey A. Miron and Jeffrey Zwiebel, <quote>Alcohol Consumption During " "Prohibition,</quote> <citetitle>American Economic Review</citetitle> 81, " "no. 2 (1991): 242." msgstr "" #. f18. #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10703 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><part><chapter><section><para><footnote><para> #: freeculture.xml:10713 msgid "" "See James Andreoni, Brian Erard, and Jonathon Feinstein, <quote>Tax " "Compliance,</quote> <citetitle>Journal of Economic Literature</citetitle> 36 " "(1998): 818 (survey of compliance literature)." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10685 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 <quote>free " "society,</quote> 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><part><chapter><section><indexterm><primary> #: freeculture.xml:10721 msgid "law schools" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10723 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 <quote>ethics.</quote> 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 " "<quote>normally</quote> entails a certain degree of illegality." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10740 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><part><chapter><section><para> #: freeculture.xml:10753 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><part><chapter><section><para> #: freeculture.xml:10760 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 " "<quote>sharing.</quote> We need to be able to call these twenty million " "Americans <quote>citizens,</quote> not <quote>felons.</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10774 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><part><chapter><section><para> #: freeculture.xml:10786 msgid "This abstract point can be made more clear with a particular example." msgstr "" #. PAGE BREAK 212 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10789 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 <quote>use</quote> of the " "recordings is free." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10800 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 <quote>free</quote> to copy, or " "<quote>rip,</quote> music from my records onto a computer hard disk. Indeed, " "Apple Corporation went so far as to suggest that <quote>freedom</quote> was " "a right: In a series of commercials, Apple endorsed the <quote>Rip, Mix, " "Burn</quote> capacities of digital technologies." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:10808 msgid "Andromeda" msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:10809 msgid "mix technology and" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10811 msgid "" "This <quote>use</quote> 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><part><chapter><section><para> #: freeculture.xml:10822 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><part><chapter><section><para> #: freeculture.xml:10832 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 <quote>digital rights management</quote> system." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10847 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><part><chapter><section><para> #: freeculture.xml:10856 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><part><chapter><section><para> #: freeculture.xml:10867 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><part><chapter><section><para> #: freeculture.xml:10876 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 "" #. PAGE BREAK 214 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10882 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." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10893 msgid "" "<emphasis role='strong'>There's one more</emphasis> 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 <quote>collateral " "damage</quote> that <quote>arises whenever you turn a very large percentage " "of the population into criminals.</quote> This is the collateral damage to " "civil liberties generally." msgstr "" #. type: Content of: <book><part><chapter><section><indexterm><primary> #: freeculture.xml:10901 freeculture.xml:11002 msgid "von Lohmann, Fred" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10903 msgid "" "<quote>If you can treat someone as a putative lawbreaker,</quote> von " "Lohmann explains," msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:10908 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, <quote>Oh, well, but that person's a criminal, a " "lawbreaker.</quote> Well, what this campaign against file sharing has done " "is turn a remarkable percentage of the American Internet-using population " "into <quote>lawbreakers.</quote>" msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10920 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><part><chapter><section><para> #: freeculture.xml:10925 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><part><chapter><section><para><footnote><para> #: freeculture.xml:10943 msgid "" "See Frank Ahrens, <quote>RIAA's Lawsuits Meet Surprised Targets; Single " "Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,</quote> " "<citetitle>Washington Post</citetitle>, 10 September 2003, E1; Chris Cobbs, " "<quote>Worried Parents Pull Plug on File <quote>Stealing</quote>; With the " "Music Industry Cracking Down on File Swapping, Parents are Yanking Software " "from Home PCs to Avoid Being Sued,</quote> <citetitle>Orlando Sentinel " "Tribune</citetitle>, 30 August 2003, C1; Jefferson Graham, <quote>Recording " "Industry Sues Parents,</quote> <citetitle>USA Today</citetitle>, 15 " "September 2003, 4D; John Schwartz, <quote>She Says She's No Music Pirate. No " "Snoop Fan, Either,</quote> <citetitle>New York Times</citetitle>, 25 " "September 2003, C1; Margo Varadi, <quote>Is Brianna a Criminal?</quote> " "<citetitle>Toronto Star</citetitle>, 18 September 2003, P7." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10934 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 "" #. type: Content of: <book><part><chapter><section><indexterm><secondary> #: freeculture.xml:10956 msgid "recording industry tracking users of" msgstr "" #. f21. #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10962 msgid "" "See <quote>Revealed: How RIAA Tracks Downloaders: Music Industry Discloses " "Some Methods Used,</quote> CNN.com, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #47</ulink>." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10958 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 <quote>fingerprint.</quote>" msgstr "" #. f22. #. type: Content of: <book><part><chapter><section><para><footnote><para> #: freeculture.xml:10983 msgid "" "See Jeff Adler, <quote>Cambridge: On Campus, Pirates Are Not " "Penitent,</quote> <citetitle>Boston Globe</citetitle>, 18 May 2003, City " "Weekly, 1; Frank Ahrens, <quote>Four Students Sued over Music Sites; " "Industry Group Targets File Sharing at Colleges,</quote> " "<citetitle>Washington Post</citetitle>, 4 April 2003, E1; Elizabeth " "Armstrong, <quote>Students <quote>Rip, Mix, Burn</quote> at Their Own " "Risk,</quote> <citetitle>Christian Science Monitor</citetitle>, 2 September " "2003, 20; Robert Becker and Angela Rozas, <quote>Music Pirate Hunt Turns to " "Loyola; Two Students Names Are Handed Over; Lawsuit Possible,</quote> " "<citetitle>Chicago Tribune</citetitle>, 16 July 2003, 1C; Beth Cox, " "<quote>RIAA Trains Antipiracy Guns on Universities,</quote> " "<citetitle>Internet News</citetitle>, 30 January 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #48</ulink>; Benny Evangelista, " "<quote>Download Warning 101: Freshman Orientation This Fall to Include " "Record Industry Warnings Against File Sharing,</quote> <citetitle>San " "Francisco Chronicle</citetitle>, 11 August 2003, E11; <quote>Raid, Letters " "Are Weapons at Universities,</quote> <citetitle>USA Today</citetitle>, 26 " "September 2000, 3D." msgstr "" #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:10971 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 <quote>cooperating</quote> 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 <quote>criminal.</quote> 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 "" #. PAGE BREAK 216 #. type: Content of: <book><part><chapter><section><para> #: freeculture.xml:11004 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 " "<quote>contraband</quote> 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," msgstr "" #. type: Content of: <book><part><chapter><section><blockquote><para> #: freeculture.xml:11020 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><part><chapter><section><para> #: freeculture.xml:11040 msgid "" "When forty to sixty million Americans are considered " "<quote>criminals</quote> under the law, and when the law could achieve the " "same objective— securing rights to authors—without these " "millions being considered <quote>criminals,</quote> 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><part><title> #: freeculture.xml:11053 msgid "Balances" msgstr "" #. type: Content of: <book><part><partintro><para> #: freeculture.xml:11058 msgid "" "<emphasis role='strong'>So here's</emphasis> 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><part><partintro><para> #: freeculture.xml:11065 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><part><partintro><para> #: freeculture.xml:11073 msgid "" "<emphasis role='strong'>A war</emphasis> 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><part><partintro><para> #: freeculture.xml:11083 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><part><partintro><para> #: freeculture.xml:11091 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><part><partintro><para> #: freeculture.xml:11096 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><part><partintro><para> #: freeculture.xml:11102 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><part><chapter><title> #: freeculture.xml:11112 msgid "Chapter Thirteen: Eldred" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11113 msgid "Eldred, Eric" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11114 msgid "Hawthorne, Nathaniel" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11116 msgid "" "<emphasis role='strong'>In 1995</emphasis>, 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><part><chapter><indexterm><secondary> #: freeculture.xml:11124 msgid "of public-domain literature" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:11125 msgid "library of works derived from" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11127 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><part><chapter><para> #: freeculture.xml:11136 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><part><chapter><indexterm><primary> #: freeculture.xml:11146 msgid "Scarlet Letter, The (Hawthorne)" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11148 msgid "" "Eldred's freedom to do this with Hawthorne's work grew from the same source " "as Disney's. Hawthorne's <citetitle>Scarlet Letter</citetitle> 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 (<citetitle>Cinderella</citetitle>), sometimes not " "(<citetitle>The Hunchback of Notre Dame</citetitle>, <citetitle>Treasure " "Planet</citetitle>). These are all commercial publications of public domain " "works." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11173 freeculture.xml:12241 msgid "pornography" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:11173 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> 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><part><chapter><para> #: freeculture.xml:11162 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 " "<quote>noncommercial publishing industry,</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:11193 msgid "Frost, Robert" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11194 msgid "New Hampshire (Frost)" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11198 msgid "" "As I said, Eldred lives in New Hampshire. In 1998, Robert Frost's collection " "of poems <citetitle>New Hampshire</citetitle> 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 <xref " "xrefstyle=\"select: labelnumber\" linkend=\"property-i\"/>, 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 "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:11213 freeculture.xml:11225 msgid "Bono, Mary" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:11214 freeculture.xml:11226 msgid "Bono, Sonny" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><secondary> #: freeculture.xml:11227 msgid "perpetual copyright term proposed by" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:11225 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> <placeholder type=\"indexterm\" " "id=\"1\"/> <placeholder type=\"indexterm\" id=\"2\"/> The full text is: " "<quote>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,</quote> 144 " "Cong. Rec. H9946, 9951-2 (October 7, 1998)." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11220 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 <quote>copyrights should be " "forever.</quote><placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:11238 msgid "felony punishment for infringement of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11239 msgid "NET (No Electronic Theft) Act (1998)" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11240 msgid "No Electronic Theft (NET) Act (1998)" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:11241 msgid "felony punishments for" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11243 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><part><chapter><indexterm><secondary> #: freeculture.xml:11252 freeculture.xml:11464 freeculture.xml:12209 msgid "constitutional powers of" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:11255 freeculture.xml:11301 msgid "Eldred case involvement of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11257 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><part><chapter><blockquote><para> #: freeculture.xml:11268 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><part><chapter><para> #: freeculture.xml:11275 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 <quote>commerce among the several states</quote> or " "<quote>declare War.</quote> But here, the <quote>something</quote> is " "something quite specific—to <quote>promote … " "Progress</quote>—through means that are also specific— by " "<quote>securing</quote> <quote>exclusive Rights</quote> (i.e., copyrights) " "<quote>for limited Times.</quote>" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11287 freeculture.xml:12827 msgid "Jaszi, Peter" msgstr "" #. PAGE BREAK 223 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11289 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 <quote>limited</quote> 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 <quote>on the installment plan,</quote> as " "Professor Peter Jaszi so nicely put it." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11303 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><part><chapter><para> #: freeculture.xml:11314 msgid "" "For this is the core of the corruption in our present system of " "government. <quote>Corruption</quote> not in the sense that representatives " "are bribed. Rather, <quote>corruption</quote> 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><part><chapter><para> #: freeculture.xml:11323 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><part><chapter><para> #: freeculture.xml:11333 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><part><chapter><para> #: freeculture.xml:11340 msgid "" "<quote>Next year,</quote> the adviser announces, <quote>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.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11348 msgid "" "<quote>There's a proposal in Congress, however,</quote> she continues, " "<quote>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.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11354 msgid "" "<quote>Hope?</quote> a fellow board member says. <quote>Can't we be doing " "something about it?</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11358 msgid "" "<quote>Well, obviously, yes,</quote> the adviser responds. <quote>We could " "contribute to the campaigns of a number of representatives to try to assure " "that they support the bill.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11363 msgid "" "You hate politics. You hate contributing to campaigns. So you want to know " "whether this disgusting practice is worth it. <quote>How much would we get " "if this extension were passed?</quote> you ask the adviser. <quote>How much " "is it worth?</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11369 msgid "" "<quote>Well,</quote> the adviser says, <quote>if you're confident that you " "will continue to get at least $100,000 a year from these copyrights, and you " "use the <quote>discount rate</quote> that we use to evaluate estate " "investments (6 percent), then this law would be worth $1,146,000 to the " "estate.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11375 msgid "" "You're a bit shocked by the number, but you quickly come to the correct " "conclusion:" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11379 msgid "" "<quote>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?</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11385 msgid "" "<quote>Absolutely,</quote> the adviser responds. <quote>It is worth it to " "you to contribute up to the <quote>present value</quote> of the income you " "expect from these copyrights. Which for us means over $1,000,000.</quote>" msgstr "" #. PAGE BREAK 225 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11391 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><part><chapter><para> #: freeculture.xml:11402 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><part><chapter><para><footnote><para> #: freeculture.xml:11414 msgid "" "Associated Press, <quote>Disney Lobbying for Copyright Extension No Mickey " "Mouse Effort; Congress OKs Bill Granting Creators 20 More Years,</quote> " "<citetitle>Chicago Tribune</citetitle>, 17 October 1998, 22." msgstr "" #. f4. #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:11421 msgid "" "See Nick Brown, <quote>Fair Use No More?: Copyright in the Information " "Age,</quote> available at <ulink url=\"http://free-culture.cc/notes/\">link " "#49</ulink>." msgstr "" #. f5. #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:11429 msgid "" "Alan K. Ota, <quote>Disney in Washington: The Mouse That Roars,</quote> " "<citetitle>Congressional Quarterly This Week</citetitle>, 8 August 1990, " "available at <ulink url=\"http://free-culture.cc/notes/\">link #50</ulink>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11407 msgid "" "In the lobbying that led to the passage of the Sonny Bono Copyright Term " "Extension Act, this <quote>theory</quote> 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><part><chapter><para> #: freeculture.xml:11436 msgid "" "<emphasis role='strong'>Constitutional law</emphasis> 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 " "<quote>limited.</quote> If they could extend it once, they would extend it " "again and again and again." msgstr "" #. PAGE BREAK 226 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11451 msgid "" "It was also my judgment that <emphasis>this</emphasis> 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><part><chapter><indexterm><primary> #: freeculture.xml:11463 freeculture.xml:12366 msgid "commerce, interstate" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11465 freeculture.xml:12367 msgid "interstate commerce" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11467 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 <quote>commerce among the several states</quote> (aka <quote>interstate " "commerce</quote>), 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><part><chapter><para> #: freeculture.xml:11477 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><part><chapter><indexterm><primary> #: freeculture.xml:11483 freeculture.xml:12292 msgid "Rehnquist, William H." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11484 freeculture.xml:11540 freeculture.xml:12295 freeculture.xml:12365 freeculture.xml:12559 freeculture.xml:12656 freeculture.xml:12726 msgid "United States v. Lopez" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11486 msgid "" "The Supreme Court, under Chief Justice Rehnquist's command, changed that in " "<citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>. 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><part><chapter><para><footnote><para> #: freeculture.xml:11501 msgid "" "<citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>, 514 " "U.S. 549, 564 (1995)." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11509 freeculture.xml:12296 msgid "United States v. Morrison" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:11508 msgid "" "<citetitle>United States</citetitle> v. <citetitle>Morrison</citetitle>, 529 " "U.S. 598 (2000). <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11499 msgid "" "<quote>We pause to consider the implications of the government's " "arguments,</quote> 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 <citetitle>Lopez</citetitle> was " "reaffirmed five years later in <citetitle>United States</citetitle> " "v. <citetitle>Morrison</citetitle>.<placeholder type=\"footnote\" id=\"1\"/>" msgstr "" #. f8. #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:11518 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 <quote>limited times</quote> " "notwithstanding." msgstr "" #. PAGE BREAK 227 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11515 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 " "<quote>stopping point</quote> 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><part><chapter><indexterm><secondary> #: freeculture.xml:11539 freeculture.xml:12298 msgid "Supreme Court restraint on" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11542 msgid "" "<emphasis>If</emphasis>, that is, the principle announced in " "<citetitle>Lopez</citetitle> stood for a principle. Many believed the " "decision in <citetitle>Lopez</citetitle> 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 <quote>fidelity</quote> " "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><part><chapter><para> #: freeculture.xml:11560 msgid "" "<emphasis role='strong'>Now let's pause</emphasis> for a moment to make sure " "we understand what the argument in <citetitle>Eldred</citetitle> 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11577 msgid "Nashville Songwriters Association" msgstr "" #. f9. #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:11585 msgid "" "Brief of the Nashville Songwriters Association, " "<citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 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><part><chapter><para> #: freeculture.xml:11579 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 <quote>legal piracy.</quote><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><part><chapter><para> #: freeculture.xml:11595 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><part><chapter><para> #: freeculture.xml:11609 msgid "" "<emphasis role='strong'>It is valuable</emphasis> copyrights that are " "responsible for terms being extended. Mickey Mouse and <quote>Rhapsody in " "Blue.</quote> 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><part><chapter><para><footnote><para> #: freeculture.xml:11627 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, <citetitle>Eldred</citetitle> " "v. <citetitle>Ashcroft</citetitle>, 7, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #52</ulink>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11621 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><part><chapter><para> #: freeculture.xml:11637 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><part><chapter><para> #: freeculture.xml:11650 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><part><chapter><para> #: freeculture.xml:11658 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><part><chapter><para> #: freeculture.xml:11662 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><part><chapter><para> #: freeculture.xml:11669 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><part><chapter><para> #: freeculture.xml:11678 msgid "" "<quote>But there isn't a list of who owns property generally,</quote> the " "apologists for the system respond. <quote>Why should there be a list of " "copyright owners?</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11683 msgid "" "Well, actually, if you think about it, there <emphasis>are</emphasis> 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><part><chapter><para> #: freeculture.xml:11692 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><part><chapter><para> #: freeculture.xml:11707 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><part><chapter><para> #: freeculture.xml:11719 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><part><chapter><indexterm><primary> #: freeculture.xml:11724 msgid "Agee, Michael" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11725 freeculture.xml:12165 msgid "Hal Roach Studios" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11726 msgid "Laurel and Hardy Films" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:11727 msgid "Lucky Dog, The" msgstr "" #. f11. #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:11740 msgid "" "See David G. Savage, <quote>High Court Scene of Showdown on Copyright " "Law,</quote> <citetitle>Los Angeles Times</citetitle>, 6 October 2002; David " "Streitfeld, <quote>Classic Movies, Songs, Books at Stake; Supreme Court " "Hears Arguments Today on Striking Down Copyright Extension,</quote> " "<citetitle>Orlando Sentinel Tribune</citetitle>, 9 October 2002." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11729 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, <citetitle>The Lucky " "Dog</citetitle>, 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, <quote>Roach has sold about 60,000 " "videocassettes and 50,000 DVDs of the duo's silent " "films.</quote><placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11747 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><part><chapter><para> #: freeculture.xml:11753 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><part><chapter><para><footnote><para> #: freeculture.xml:11771 msgid "" "Brief of Hal Roach Studios and Michael Agee as Amicus Curiae Supporting the " "Petitoners, <citetitle>Eldred</citetitle> " "v. <citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01- 618), " "12. See also Brief of Amicus Curiae filed on behalf of Petitioners by the " "Internet Archive, <citetitle>Eldred</citetitle> " "v. <citetitle>Ashcroft</citetitle>, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #53</ulink>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11764 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 8 mm film.<placeholder " "type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11781 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><part><chapter><para> #: freeculture.xml:11789 msgid "" "Or more accurately, <emphasis>owners</emphasis>. 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><part><chapter><para> #: freeculture.xml:11797 msgid "" "<quote>But can't you just restore the film, distribute it, and then pay the " "copyright owner when she shows up?</quote> 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><part><chapter><para> #: freeculture.xml:11808 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><part><chapter><para> #: freeculture.xml:11819 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><part><chapter><para> #: freeculture.xml:11827 msgid "" "<emphasis role='strong'>Of all the</emphasis> 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 " "<quote>engine of free expression.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11835 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><part><chapter><para> #: freeculture.xml:11845 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><part><chapter><para> #: freeculture.xml:11858 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><part><chapter><para> #: freeculture.xml:11865 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 " "<emphasis>copyright-related use</emphasis> 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><part><chapter><para> #: freeculture.xml:11876 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><part><chapter><para> #: freeculture.xml:11885 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><part><chapter><para> #: freeculture.xml:11891 msgid "But this situation has now changed." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11896 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><part><chapter><para> #: freeculture.xml:11909 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><part><chapter><para> #: freeculture.xml:11919 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 " "<emphasis>copyright</emphasis> 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 <emphasis>at all</emphasis> 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><part><chapter><para> #: freeculture.xml:11930 msgid "" "You may well ask, <quote>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?</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11937 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 <quote>the market</quote> 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><part><chapter><para><footnote><para> #: freeculture.xml:11961 msgid "" "Jason Schultz, <quote>The Myth of the 1976 Copyright <quote>Chaos</quote> " "Theory,</quote> 20 December 2002, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #54</ulink>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11949 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 1923 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><part><chapter><para> #: freeculture.xml:11968 msgid "" "<emphasis role='strong'>In January 1999</emphasis>, 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 <quote>limited " "Times</quote> requirement, and (2) that extending terms by another twenty " "years violated the First Amendment." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:11977 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><part><chapter><para> #: freeculture.xml:11984 msgid "" "Judge David Sentelle said the CTEA violated the requirement that copyrights " "be for <quote>limited Times</quote> only. His argument was as elegant as it " "was simple: If Congress can extend existing terms, then there is no " "<quote>stopping point</quote> to Congress's power under the Copyright " "Clause. The power to extend existing terms means Congress is not required to " "grant terms that are <quote>limited.</quote> Thus, Judge Sentelle argued, " "the court had to interpret the term <quote>limited Times</quote> 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><part><chapter><para> #: freeculture.xml:11995 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 <quote>en banc</quote> to hear the case." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12000 msgid "Tatel, David" msgstr "" #. PAGE BREAK 236 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12002 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><part><chapter><para> #: freeculture.xml:12011 msgid "" "It was here that most expected <citetitle>Eldred</citetitle> " "v. <citetitle>Ashcroft</citetitle> 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><part><chapter><para> #: freeculture.xml:12019 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><part><chapter><para> #: freeculture.xml:12025 msgid "" "<emphasis role='strong'>It is over</emphasis> 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><part><chapter><para> #: freeculture.xml:12036 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><part><chapter><indexterm><primary> #: freeculture.xml:12041 freeculture.xml:12056 msgid "Steward, Geoffrey" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12042 freeculture.xml:12193 freeculture.xml:12440 msgid "Jones, Day, Reavis and Pogue (Jones Day)" msgstr "" #. PAGE BREAK 237 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12044 msgid "" "<emphasis role='strong'>The mistake</emphasis> 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><part><chapter><indexterm><primary> #: freeculture.xml:12054 freeculture.xml:12437 freeculture.xml:12454 freeculture.xml:12551 freeculture.xml:12776 freeculture.xml:12807 freeculture.xml:12906 msgid "Ayer, Don" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12055 msgid "Bromberg, Dan" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12058 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 <quote>important</quote> 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 <quote>the most powerful media " "companies in the world.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12069 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 " "<quote>right</quote> as in <quote>true,</quote> I thought, but it is " "<quote>wrong</quote> as in <quote>it just shouldn't be that way.</quote> 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><part><chapter><para> #: freeculture.xml:12090 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><part><chapter><para> #: freeculture.xml:12098 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 " "<emphasis>law</emphasis> 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><part><chapter><indexterm><primary> #: freeculture.xml:12116 freeculture.xml:12143 msgid "Eagle Forum" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12117 msgid "Schlafly, Phyllis" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12119 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, <quote>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?</quote> 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." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12133 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 "" #. PAGE BREAK 239 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12145 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." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12157 msgid "American Association of Law Libraries" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12158 msgid "National Writers Union" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12160 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><part><chapter><para> #: freeculture.xml:12167 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><part><chapter><indexterm><primary> #: freeculture.xml:12173 msgid "Akerlof, George" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12174 msgid "Arrow, Kenneth" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12175 msgid "Buchanan, James" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12176 msgid "Coase, Ronald" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12177 msgid "Friedman, Milton" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12179 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 " "<quote>rent-seeking</quote>—the fancy term economists use to describe " "special-interest legislation gone wild." msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12189 freeculture.xml:12208 freeculture.xml:12439 freeculture.xml:12808 msgid "Fried, Charles" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12190 msgid "Morrison, Alan" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12191 msgid "Public Citizen" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:12192 freeculture.xml:12438 freeculture.xml:13597 msgid "Reagan, Ronald" msgstr "" #. PAGE BREAK 240 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12195 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." msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:12210 msgid "Commerce Clause of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12212 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." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12224 msgid "" "The government, in defending the statute, had its collection of friends, as " "well. Significantly, however, none of these <quote>friends</quote> 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><part><chapter><para> #: freeculture.xml:12231 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 "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12239 msgid "Gershwin, George" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12240 msgid "Porgy and Bess" msgstr "" #. f14. #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:12250 msgid "" "Brief of Amici Dr. Seuss Enterprise et al., <citetitle>Eldred</citetitle> " "v. <citetitle>Ashcroft</citetitle>, 537 U.S. (2003) (No. 01-618), 19." msgstr "" #. f15. #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:12258 msgid "" "Dinitia Smith, <quote>Immortal Words, Immortal Royalties? Even Mickey Mouse " "Joins the Fray,</quote> <citetitle>New York Times</citetitle>, 28 March " "1998, B7." msgstr "" #. PAGE BREAK 241 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12243 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 " "<quote>glorify drugs or to create pornography.</quote><placeholder " "type=\"footnote\" id=\"0\"/> That was also the motive of the Gershwin " "estate, which defended its <quote>protection</quote> of the work of George " "Gershwin. They refuse, for example, to license <citetitle>Porgy and " "Bess</citetitle> 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." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12267 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, <quote>Give us twenty years to control the speech about " "these icons of American culture. We'll do better with them than anyone " "else.</quote> 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><part><chapter><para> #: freeculture.xml:12279 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." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12286 msgid "" "<emphasis role='strong'>Between February</emphasis> 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><part><chapter><indexterm><primary> #: freeculture.xml:12290 msgid "Kennedy, Anthony" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12291 freeculture.xml:12293 freeculture.xml:12496 msgid "O'Connor, Sandra Day" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12294 msgid "Thomas, Clarence" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12297 msgid "Scalia, Antonin" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:12299 msgid "congressional actions restrained by" msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:12300 msgid "factions of" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12302 msgid "" "The Supreme Court was divided into two important camps. One camp we called " "<quote>the Conservatives.</quote> The other we called <quote>the " "Rest.</quote> 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 <citetitle>Lopez/Morrison</citetitle> 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><part><chapter><indexterm><primary> #: freeculture.xml:12311 freeculture.xml:12336 freeculture.xml:12701 freeculture.xml:12713 msgid "Breyer, Stephen" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12312 freeculture.xml:12664 msgid "Ginsburg, Ruth Bader" msgstr "" #. PAGE BREAK 242 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12314 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><part><chapter><para> #: freeculture.xml:12326 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><part><chapter><para> #: freeculture.xml:12338 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><part><chapter><para> #: freeculture.xml:12348 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><part><chapter><para> #: freeculture.xml:12356 msgid "" "This analysis of <quote>the Rest</quote> 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><part><chapter><para> #: freeculture.xml:12373 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 " "<citetitle>Lopez</citetitle> 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 <quote>limited.</quote> Our aim would be " "to get the Court to reconcile <citetitle>Eldred</citetitle> with " "<citetitle>Lopez</citetitle>: 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><part><chapter><para> #: freeculture.xml:12387 msgid "" "<emphasis role='strong'>The argument</emphasis> 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><part><chapter><para> #: freeculture.xml:12396 msgid "" "There was some truth to the government's claim, but not much. We certainly " "agreed that Congress had extended existing terms in 1831 and in 1909. And of " "course, in 1962, Congress began extending existing terms " "regularly—eleven times in forty years." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12403 msgid "" "But this <quote>consistency</quote> 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." msgstr "" #. PAGE BREAK 244 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12418 msgid "" "<emphasis role='strong'>Oral argument</emphasis> 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 <quote>mooted</quote> by lawyers who had " "volunteered to help in the case. Such <quote>moots</quote> are basically " "practice rounds, where wannabe justices fire questions at wannabe winners." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12428 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><part><chapter><para> #: freeculture.xml:12442 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:" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12448 msgid "" "<quote>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.</quote>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12456 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." msgstr "" #. PAGE BREAK 245 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12466 msgid "" "<emphasis role='strong'>The night before</emphasis> 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><part><chapter><para> #: freeculture.xml:12476 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><part><chapter><para> #: freeculture.xml:12491 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><part><chapter><para> #: freeculture.xml:12498 msgid "" "Justice O'Connor stopped me within one minute of my opening. The history " "was bothering her." msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:12503 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><part><chapter><para> #: freeculture.xml:12510 msgid "" "She was quite willing to concede <quote>that this flies directly in the face " "of what the framers had in mind.</quote> But my response again and again was " "to emphasize limits on Congress's power." msgstr "" #. PAGE BREAK 246 #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:12516 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><part><chapter><para> #: freeculture.xml:12524 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><part><chapter><blockquote><para> #: freeculture.xml:12530 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><part><chapter><para> #: freeculture.xml:12538 msgid "" "Here follows my clear mistake. Like a professor correcting a student, I " "answered," msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:12544 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><part><chapter><para> #: freeculture.xml:12553 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><part><chapter><para> #: freeculture.xml:12561 msgid "" "The second came from the Chief, for whom the whole case had been " "crafted. For the Chief Justice had crafted the <citetitle>Lopez</citetitle> " "ruling, and we hoped that he would see this case as its second cousin." msgstr "" #. PAGE BREAK 247 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12566 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><part><chapter><blockquote><para> #: freeculture.xml:12573 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><part><chapter><blockquote><para> #: freeculture.xml:12577 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><part><chapter><indexterm><primary> #: freeculture.xml:12585 msgid "Olson, Theodore B." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12587 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><part><chapter><blockquote><para> #: freeculture.xml:12593 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><part><chapter><para> #: freeculture.xml:12601 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><part><chapter><para> #: freeculture.xml:12614 msgid "" "<emphasis role='strong'>As I left</emphasis> 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><part><chapter><para> #: freeculture.xml:12623 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><part><chapter><para> #: freeculture.xml:12638 msgid "" "<emphasis role='strong'>The morning</emphasis> 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><part><chapter><para> #: freeculture.xml:12646 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><part><chapter><para> #: freeculture.xml:12651 msgid "" "My <emphasis>reasoning</emphasis>. Here was a case that pitted all the money " "in the world against <emphasis>reasoning</emphasis>. And here was the last " "naïve law professor, scouring the pages, looking for reasoning." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12658 msgid "" "I first scoured the opinion, looking for how the Court would distinguish the " "principle in this case from the principle in " "<citetitle>Lopez</citetitle>. 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><part><chapter><para> #: freeculture.xml:12668 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><part><chapter><para> #: freeculture.xml:12673 msgid "" "Her opinion was perfectly reasonable—for her, and for Justice " "Souter. Neither believes in <citetitle>Lopez</citetitle>. 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><part><chapter><para> #: freeculture.xml:12679 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 <emphasis>by not addressing the argument</emphasis>. There was no " "inconsistency because they would not talk about the two together. There was " "therefore no principle that followed from the <citetitle>Lopez</citetitle> " "case: In that context, Congress's power would be limited, but in this " "context it would not." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12691 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><part><chapter><para> #: freeculture.xml:12703 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><part><chapter><para> #: freeculture.xml:12716 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 <quote>limited,</quote> and the existing " "term was so long as to be effectively unlimited, then it was " "unconstitutional." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12728 msgid "" "These two justices understood all the arguments we had made. But because " "neither believed in the <citetitle>Lopez</citetitle> 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 <citetitle>Hamlet</citetitle> without the " "Prince." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12735 msgid "" "<emphasis role='strong'>Defeat brings depression</emphasis>. 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><part><chapter><indexterm><primary> #: freeculture.xml:12740 msgid "originalism" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12742 msgid "" "It was first anger with the five <quote>Conservatives.</quote> It would have " "been one thing for them to have explained why the principle of " "<citetitle>Lopez</citetitle> 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 " "<quote>originalism</quote>—to first understand the framers' text, " "interpreted in their context, in light of the structure of the " "Constitution. That method had produced <citetitle>Lopez</citetitle> and many " "other <quote>originalist</quote> rulings. Where was their " "<quote>originalism</quote> now?" msgstr "" #. PAGE BREAK 251 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12756 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><part><chapter><para> #: freeculture.xml:12771 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><part><chapter><para> #: freeculture.xml:12778 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><part><chapter><para> #: freeculture.xml:12789 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><part><chapter><para> #: freeculture.xml:12810 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?" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12815 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><part><chapter><para> #: freeculture.xml:12821 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><part><chapter><para> #: freeculture.xml:12829 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. <quote>The Court is not ready,</quote> Peter Jaszi said; this " "issue should not be raised until it is." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12836 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." msgstr "" #. PAGE BREAK 253 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12845 msgid "" "<emphasis role='strong'>While the reaction</emphasis> 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. <citetitle>The " "New York Times</citetitle> wrote in its editorial," msgstr "" #. type: Content of: <book><part><chapter><blockquote><para> #: freeculture.xml:12860 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><part><chapter><figure><indexterm><primary> #: freeculture.xml:12875 freeculture.xml:12880 msgid "Bolling, Ruben" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12869 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 in figure <xref " "xrefstyle=\"template:%n\" linkend=\"fig-18\"/>. The <quote>powerful and " "wealthy</quote> 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><part><chapter><figure> #: freeculture.xml:12879 msgid "" "<graphic fileref=\"images/tom-the-dancing-bug.png\" align=\"center\" " "width=\"100%\"></graphic> <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12883 msgid "" "The image that will always stick in my head is that evoked by the quote from " "<citetitle>The New York Times</citetitle>. That <quote>grand " "experiment</quote> we call the <quote>public domain</quote> is over? When I " "can make light of it, I think, <quote>Honey, I shrunk the " "Constitution.</quote> 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><part><chapter><title> #: freeculture.xml:12894 msgid "Chapter Fourteen: Eldred II" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12896 msgid "" "<emphasis role='strong'>The day</emphasis> <citetitle>Eldred</citetitle> was " "decided, fate would have it that I was to travel to Washington, D.C. (The " "day the rehearing petition in <citetitle>Eldred</citetitle> 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><part><chapter><para> #: freeculture.xml:12908 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: " "<quote>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.</quote> 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><part><chapter><para> #: freeculture.xml:12918 msgid "" "<citetitle>The New York Times</citetitle> 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><part><chapter><para> #: freeculture.xml:12926 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><part><chapter><para> #: freeculture.xml:12931 msgid "" "Or another two names. For depending upon your perspective, this is either " "the <quote>Public Domain Enhancement Act</quote> or the <quote>Copyright " "Term Deregulation Act.</quote> 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><part><chapter><indexterm><primary> #: freeculture.xml:12939 freeculture.xml:13142 msgid "Forbes, Steve" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12940 msgid "Democratic Party" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12941 msgid "Republican Party" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12943 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><part><chapter><para> #: freeculture.xml:12955 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><part><chapter><indexterm><primary> #: freeculture.xml:12965 msgid "Berlin Act (1908)" msgstr "" #. type: Content of: <book><part><chapter><indexterm><primary> #: freeculture.xml:12966 freeculture.xml:13007 msgid "Berne Convention (1908)" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para><indexterm><primary> #: freeculture.xml:12974 msgid "German copyright law" msgstr "" #. type: Content of: <book><part><chapter><para><footnote><para> #: freeculture.xml:12974 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> 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 <quote>the " "enjoyment and the exercise</quote> of rights guaranteed by the Convention " "<quote>shall not be subject to any formality.</quote> 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, <citetitle>International Intellectual Property Law, " "Cases and Materials</citetitle> (New York: Foundation Press, 2001), " "153–54." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:12969 msgid "" "As I described in chapter <xref xrefstyle=\"select: labelnumber\" " "linkend=\"property-i\"/>, 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 <quote>natural right.</quote> " "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><part><chapter><para> #: freeculture.xml:13001 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 <quote>Walt " "Disney creativity</quote> is destroyed when there is no simple way to know " "what's protected and what's not." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13009 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 " "<citetitle>i</citetitle> or cross a <citetitle>t</citetitle> resulted in the " "loss of widows' only income." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13019 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><part><chapter><para> #: freeculture.xml:13027 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><part><chapter><para> #: freeculture.xml:13035 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 <quote>naturally,</quote> 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><part><chapter><para> #: freeculture.xml:13047 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><part><chapter><para> #: freeculture.xml:13056 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><part><chapter><para> #: freeculture.xml:13072 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, <emphasis>lawyer</emphasis> transactions " "take their place. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13087 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 " "<quote>get.</quote> 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, <quote>short,</quote> 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><part><chapter><para> #: freeculture.xml:13097 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 <emphasis>because there are no " "formalities</emphasis>." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13106 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><part><chapter><para> #: freeculture.xml:13113 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><part><chapter><para> #: freeculture.xml:13120 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><part><chapter><para> #: freeculture.xml:13126 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 <emphasis>governments</emphasis> 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><part><chapter><para> #: freeculture.xml:13144 msgid "" "<emphasis role='strong'>When Steve Forbes</emphasis> 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><part><chapter><indexterm><primary> #: freeculture.xml:13150 msgid "Lofgren, Zoe" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13152 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, <quote>we are close.</quote> There was a general " "reaction in the blog community that something good might happen here." msgstr "" #. type: Content of: <book><part><chapter><indexterm><secondary> #: freeculture.xml:13160 msgid "Eldred Act opposed by" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13162 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><part><chapter><para> #: freeculture.xml:13170 msgid "" "The MPAA argued first that Congress had <quote>firmly rejected the central " "concept in the proposed bill</quote>—that copyrights be renewed. That " "was true, but irrelevant, as Congress's <quote>firm rejection</quote> 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 <quote>enormous</quote> 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><part><chapter><para> #: freeculture.xml:13191 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><part><chapter><para> #: freeculture.xml:13199 msgid "" "<emphasis role='strong'>At the beginning</emphasis> 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><part><chapter><para> #: freeculture.xml:13209 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><part><chapter><para> #: freeculture.xml:13218 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><part><chapter><indexterm><primary> #: freeculture.xml:13228 msgid "Kelly, Kevin" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13230 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 <quote>Dark Content</quote> 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><part><chapter><para> #: freeculture.xml:13240 msgid "What does this industry really want?" msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13243 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 " "<emphasis>their</emphasis> 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 " "<emphasis>their</emphasis> permission first." msgstr "" #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13254 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 <quote>property</quote> but the rejection of a tradition. " "Their aim is not simply to protect what is theirs. <emphasis>Their aim is to " "assure that all there is is what is theirs</emphasis>." msgstr "" #. PAGE BREAK 263 #. type: Content of: <book><part><chapter><para> #: freeculture.xml:13262 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><part><chapter><para> #: freeculture.xml:13274 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><part><chapter><para> #: freeculture.xml:13281 msgid "" "All this seems to follow easily from this untroubled acceptance of the " "<quote>property</quote> 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 <quote>permission " "society.</quote> 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:13293 msgid "Conclusion" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13294 msgid "Africa, medications for HIV patients in" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13295 msgid "AIDS medications" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13296 msgid "antiretroviral drugs" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13297 msgid "developing countries, foreign patent costs in" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13298 freeculture.xml:13812 msgid "drugs" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:13298 freeculture.xml:13812 msgid "pharmaceutical" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13299 msgid "HIV/AIDS therapies" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13301 msgid "" "<emphasis role='strong'>There are more</emphasis> 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:13308 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:13323 msgid "" "Commission on Intellectual Property Rights, <quote>Final Report: Integrating " "Intellectual Property Rights and Development Policy</quote> (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:13316 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 "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:13332 freeculture.xml:13814 msgid "on pharmaceuticals" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13333 msgid "pharmaceutical patents" msgstr "" #. PAGE BREAK 265 #. type: Content of: <book><chapter><para> #: freeculture.xml:13336 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:13344 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:13355 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:13361 msgid "international law" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13362 msgid "parallel importation" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13363 msgid "South Africa, Republic of, pharmaceutical imports by" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13376 freeculture.xml:13870 msgid "Braithwaite, John" msgstr "" #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:13374 msgid "" "See Peter Drahos with John Braithwaite, <citetitle>Information Feudalism: " "Who Owns the Knowledge Economy?</citetitle> (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:13365 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 <quote>parallel importation,</quote> and it is generally permitted " "under international trade law and is specifically permitted within the " "European Union.<placeholder type=\"footnote\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13380 msgid "United States Trade Representative (USTR)" msgstr "" #. f3. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:13388 msgid "" "International Intellectual Property Institute (IIPI), <citetitle>Patent " "Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a " "Report Prepared for the World Intellectual Property Organization</citetitle> " "(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:13415 msgid "" "International Intellectual Property Institute (IIPI), <citetitle>Patent " "Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan Africa, a " "Report Prepared for the World Intellectual Property Organization</citetitle> " "(Washington, D.C., 2000), 15." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13382 msgid "" "However, the United States government opposed the bill. Indeed, more than " "opposed. As the International Intellectual Property Association " "characterized it, <quote>The U.S. government pressured South Africa … " "not to permit compulsory licensing or parallel imports.</quote><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:13422 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:13432 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:13440 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:13455 msgid "" "See Sabin Russell, <quote>New Crusade to Lower AIDS Drug Costs: Africa's " "Needs at Odds with Firms' Profit Motive,</quote> <citetitle>San Francisco " "Chronicle</citetitle>, 24 May 1999, A1, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #57</ulink> (<quote>compulsory " "licenses and gray markets pose a threat to the entire system of intellectual " "property protection</quote>); Robert Weissman, <quote>AIDS and Developing " "Countries: Democratizing Access to Essential Medicines,</quote> " "<citetitle>Foreign Policy in Focus</citetitle> 4:23 (August 1999), available " "at <ulink url=\"http://free-culture.cc/notes/\">link #58</ulink> (describing " "U.S. policy); John A. Harrelson, <quote>TRIPS, Pharmaceutical Patents, and " "the HIV/AIDS Crisis: Finding the Proper Balance Between Intellectual " "Property Rights and Compassion, a Synopsis,</quote> <citetitle>Widener Law " "Symposium Journal</citetitle> (Spring 2001): 175." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13449 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 <quote>intellectual property</quote> would be violated that these " "drugs should not flow into Africa. It was a principle about the importance " "of <quote>intellectual property</quote> that led these government actors to " "intervene against the South African response to AIDS." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13477 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 <quote>sanctity</quote> 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><indexterm><secondary> #: freeculture.xml:13486 msgid "in pharmaceutical industry" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13488 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:13496 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 "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:13503 msgid "of drug patents" msgstr "" #. PAGE BREAK 268 #. type: Content of: <book><chapter><para> #: freeculture.xml:13505 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, <quote>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?</quote> Because there is no <quote>sound bite</quote> " "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 <quote>intellectual " "property.</quote>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13527 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:13533 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 "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13548 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." msgstr "" #. PAGE BREAK 269 #. type: Content of: <book><chapter><para> #: freeculture.xml:13557 msgid "" "<emphasis role='strong'>A simple idea</emphasis> 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:13571 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 <quote>piracy,</quote> " "and devastate a culture for creativity. They defend the idea of " "<quote>creative property,</quote> 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 <quote>perfect " "storm</quote> for free culture." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:13584 freeculture.xml:14360 msgid "academic journals" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13585 freeculture.xml:13598 msgid "biomedical research" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:13586 freeculture.xml:13756 msgid "international organization on issues of" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:13588 freeculture.xml:13705 freeculture.xml:14279 msgid "IBM" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:13589 freeculture.xml:14426 msgid "PLoS (Public Library of Science)" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:13590 freeculture.xml:14427 msgid "Public Library of Science (PLoS)" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:13591 msgid "public projects in" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13592 msgid "single nucleotied polymorphisms (SNPs)" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13593 msgid "Wellcome Trust" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13594 freeculture.xml:13757 msgid "World Intellectual Property Organization (WIPO)" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13595 msgid "World Wide Web" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13596 msgid "Global Positioning System" msgstr "" #. f6. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:13603 msgid "" "Jonathan Krim, <quote>The Quiet War over Open-Source,</quote> " "<citetitle>Washington Post</citetitle>, August 2003, E1, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #59</ulink>; William New, " "<quote>Global Group's Shift on <quote>Open Source</quote> Meeting Spurs " "Stir,</quote> <citetitle>National Journal's Technology Daily</citetitle>, 19 " "August 2003, available at <ulink url=\"http://free-culture.cc/notes/\">link " "#60</ulink>; William New, <quote>U.S. Official Opposes <quote>Open " "Source</quote> Talks at WIPO,</quote> <citetitle>National Journal's " "Technology Daily</citetitle>, 19 August 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #61</ulink>." msgstr "" #. PAGE BREAK 270 #. type: Content of: <book><chapter><para> #: freeculture.xml:13600 msgid "" "<emphasis role='strong'>In August 2003</emphasis>, 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 <quote>open and collaborative projects to create public " "goods.</quote> 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 chapter " "<xref xrefstyle=\"select: labelnumber\" linkend=\"c-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 <quote>open source and free software.</quote>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13636 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 "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:13642 msgid "in international debate on intellectual property" msgstr "" #. f7. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:13645 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:13644 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 "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13654 freeculture.xml:13811 msgid "World Summit on the Information Society (WSIS)" msgstr "" #. PAGE BREAK 271 #. type: Content of: <book><chapter><para> #: freeculture.xml:13656 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 <quote>Information Society</quote> 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:13680 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 <quote>open and collaborative projects to create public " "goods</quote> seemed perfectly appropriate within the WIPO agenda." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:13689 freeculture.xml:15431 msgid "Apple Corporation" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:13690 msgid "on free software" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13692 msgid "" "But there is one project within that list that is highly controversial, at " "least among lobbyists. That project is <quote>open source and free " "software.</quote> 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 " "<quote>proprietary software,</quote> for their own internal uses." msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13702 msgid "<quote>copyleft</quote> licenses" msgstr "" #. f8. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:13718 msgid "" "Microsoft's position about free and open source software is more " "sophisticated. As it has repeatedly asserted, it has no problem with " "<quote>open source</quote> software or software in the public " "domain. Microsoft's principal opposition is to <quote>free software</quote> " "licensed under a <quote>copyleft</quote> license, meaning a license that " "requires the licensee to adopt the same terms on any derivative work. See " "Bradford L. Smith, <quote>The Future of Software: Enabling the Marketplace " "to Decide,</quote> <citetitle>Government Policy Toward Open Source " "Software</citetitle> (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, <citetitle>The Commercial Software " "Model</citetitle>, 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:13707 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 <quote>free software</quote>—and IBM is emphatically a " "commercial entity. Thus, to support <quote>open source and free " "software</quote> 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 "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13736 msgid "General Public License (GPL)" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13737 msgid "GPL (General Public License)" msgstr "" #. PAGE BREAK 272 #. type: Content of: <book><chapter><para> #: freeculture.xml:13739 msgid "" "More important for our purposes, to support <quote>open source and free " "software</quote> is not to oppose copyright. <quote>Open source and free " "software</quote> 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 "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13758 msgid "Krim, Jonathan" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:13759 msgid "WIPO meeting opposed by" msgstr "" #. f9. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:13769 msgid "" "Krim, <quote>The Quiet War over Open-Source,</quote> available at <ulink " "url=\"http://free-culture.cc/notes/\">link #64</ulink>." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13761 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 <citetitle>Washington Post</citetitle>, 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:13775 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><indexterm><primary> #: freeculture.xml:13783 freeculture.xml:13842 msgid "Boland, Lois" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13784 msgid "Patent and Trademark Office, U.S." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13786 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 <quote>open-source software runs counter to the mission of WIPO, which " "is to promote intellectual-property rights.</quote> She is quoted as saying, " "<quote>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.</quote>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13797 msgid "These statements are astonishing on a number of levels." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13802 msgid "" "First, they are just flat wrong. As I described, most open source and free " "software relies fundamentally upon the intellectual property right called " "<quote>copyright</quote>. Without it, restrictions imposed by those " "licenses wouldn't work. Thus, to say it <quote>runs counter</quote> 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><indexterm><primary> #: freeculture.xml:13813 msgid "generic drugs" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13816 msgid "" "Second, who ever said that WIPO's exclusive aim was to " "<quote>promote</quote> 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:13830 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 <emphasis>their</emphasis> rights. If " "they want to <quote>waive</quote> or <quote>disclaim</quote> 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 <emphasis>their</emphasis> property." msgstr "" #. PAGE BREAK 274 #. type: Content of: <book><chapter><para> #: freeculture.xml:13844 msgid "" "When Ms. Boland says that there is something wrong with a meeting " "<quote>which has as its purpose to disclaim or waive such rights,</quote> " "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 <quote>waiving</quote> or " "<quote>disclaiming</quote> 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><indexterm><primary> #: freeculture.xml:13855 msgid "feudal system" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:13856 msgid "feudal system of" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13858 msgid "" "There is a history of just such a property system that is well known in the " "Anglo-American tradition. It is called <quote>feudalism.</quote> 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:13875 msgid "" "See Drahos with Braithwaite, <citetitle>Information Feudalism</citetitle>, " "210–20. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13872 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 " "<emphasis>free</emphasis> or <emphasis>feudal</emphasis>. The trend is " "toward the feudal." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13886 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:13895 msgid "" "George, you misunderstand Lessig: He's only talking about the world as it " "should be (<quote>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</quote>), 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:13907 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:13918 msgid "" "Obviously, however, the poster was not supporting that idea. Instead, the " "poster was ridiculing the very idea that in the real world, the " "<quote>goal</quote> of a government should be <quote>to promote the right " "balance</quote> of intellectual property. That was obviously silly to " "him. And it obviously betrayed, he believed, my own silly " "utopianism. <quote>Typical for an academic,</quote> the poster might well " "have continued." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13926 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:13932 msgid "" "But when it has become silly to suppose that the role of our government " "should be to <quote>seek balance,</quote> 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:13943 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> #: freeculture.xml:13952 msgid "If this is crazy, then let there be more crazies. Soon." msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:13956 msgid "Turner, Ted" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13958 msgid "" "<emphasis role='strong'>There are moments</emphasis> 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." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:13969 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:13977 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:13984 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:13994 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 <quote>big,</quote> wisely or not. That we could be " "motivated to fight <quote>big</quote> again is not something new." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:14001 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 " "<quote>intellectual property.</quote> 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 " "<quote>property</quote> is not well exercised within this tradition anymore." msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:14009 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:14012 msgid "Dylan, Bob" msgstr "" #. f11. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:14018 msgid "" "John Borland, <quote>RIAA Sues 261 File Swappers,</quote> CNET News.com, " "September 2003, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #65</ulink>; Paul R. La Monica, " "<quote>Music Industry Sues Swappers,</quote> 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, <quote>Sued for a Song, " "N.Y.C. 12-Yr-Old Among 261 Cited as Sharers,</quote> <citetitle>New York " "Daily News</citetitle>, 9 September 2003, 3; Frank Ahrens, <quote>RIAA's " "Lawsuits Meet Surprised Targets; Single Mother in Calif., 12-Year-Old Girl " "in N.Y. Among Defendants,</quote> <citetitle>Washington Post</citetitle>, 10 " "September 2003, E1; Katie Dean, <quote>Schoolgirl Settles with RIAA,</quote> " "<citetitle>Wired News</citetitle>, 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:14036 msgid "" "Jon Wiederhorn, <quote>Eminem Gets Sued … by a Little Old " "Lady,</quote> 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:14043 msgid "" "Kenji Hall, Associated Press, <quote>Japanese Book May Be Inspiration for " "Dylan Songs,</quote> 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:14014 msgid "" "<emphasis role='strong'>As I write</emphasis> 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 <quote>sampling</quote> someone else's music.<placeholder " "type=\"footnote\" id=\"1\"/> The story about Bob Dylan " "<quote>stealing</quote> 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 <quote>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.</quote> " "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><indexterm><primary> #: freeculture.xml:14060 msgid "BBC" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:14061 msgid "Brazil, free culture in" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:14062 freeculture.xml:14457 msgid "Creative Commons" msgstr "" #. type: Content of: <book><chapter><indexterm><primary> #: freeculture.xml:14063 msgid "Gil, Gilberto" msgstr "" #. type: Content of: <book><chapter><indexterm><secondary> #: freeculture.xml:14064 msgid "public creative archive in" msgstr "" #. f14. #. type: Content of: <book><chapter><para><footnote><para> #: freeculture.xml:14069 msgid "" "<quote>BBC Plans to Open Up Its Archive to the Public,</quote> 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:14078 msgid "" "<quote>Creative Commons and Brazil,</quote> 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:14066 msgid "" "Yet on the other side of the Atlantic, the BBC has just announced that it " "will build a <quote>Creative Archive,</quote> 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:14092 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:14100 msgid "Afterword" msgstr "" #. type: Content of: <book><chapter><section><indexterm><secondary> #: freeculture.xml:14101 freeculture.xml:14135 msgid "voluntary reform efforts on" msgstr "" #. PAGE BREAK 280 #. type: Content of: <book><chapter><para> #: freeculture.xml:14105 msgid "" "<emphasis role='strong'>At least some</emphasis> 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:14110 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:14116 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:14125 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><section><title> #: freeculture.xml:14134 msgid "Us, now" msgstr "" #. type: Content of: <book><chapter><section><para> #: freeculture.xml:14137 msgid "" "<emphasis role='strong'>Common sense</emphasis> 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><section><para> #: freeculture.xml:14144 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—<quote>All Rights Reserved</quote>— " "and those who reject copyright—<quote>No Rights Reserved.</quote> The " "<quote>All Rights Reserved</quote> sorts believe that you should ask " "permission before you <quote>use</quote> a copyrighted work in any way. The " "<quote>No Rights Reserved</quote> sorts believe you should be able to do " "with content as you wish, regardless of whether you have permission or not." msgstr "" #. type: Content of: <book><chapter><section><indexterm><secondary> #: freeculture.xml:14154 msgid "initial free character of" msgstr "" #. PAGE BREAK 282 #. type: Content of: <book><chapter><section><para> #: freeculture.xml:14156 msgid "" "When the Internet was first born, its initial architecture effectively " "tilted in the <quote>no rights reserved</quote> 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 <quote>no rights reserved.</quote> " "Content was <quote>taken</quote> regardless of the rights. Any rights were " "effectively unprotected." msgstr "" #. type: Content of: <book><chapter><section><para> #: freeculture.xml:14168 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 <quote>no rights reserved,</quote> the future architecture will make " "the effective default <quote>all rights reserved.</quote> The architecture " "and law that surround the Internet's design will increasingly produce an " "environment where all use of content requires permission. The <quote>cut " "and paste</quote> world that defines the Internet today will become a " "<quote>get permission to cut and paste</quote> world that is a creator's " "nightmare." msgstr "" #. type: Content of: <book><chapter><section><para> #: freeculture.xml:14184 msgid "" "What's needed is a way to say something in the middle—neither " "<quote>all rights reserved</quote> nor <quote>no rights reserved</quote> but " "<quote>some rights reserved</quote>— 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><section><section><title> #: freeculture.xml:14192 msgid "Rebuilding Freedoms Previously Presumed: Examples" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:14193 msgid "restoration efforts on previous aspects of" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:14195 msgid "privacy rights" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14197 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 " "<quote>privacy</quote> of your browsing habits was assured." msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14207 msgid "What made it assured?" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14211 msgid "" "Well, if we think in terms of the modalities I described in chapter <xref " "xrefstyle=\"select: labelnumber\" linkend=\"property-i\"/>, 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 <quote>privacy</quote> 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><section><section><indexterm><primary> #: freeculture.xml:14226 msgid "Amazon" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:14227 msgid "cookies, Internet" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:14228 msgid "privacy protection on" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14230 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 <quote>recently " "viewed</quote> 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 <quote>privacy</quote> " "protected by the friction disappears, too." msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:14239 msgid "privacy rights in use of" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14241 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 <quote>right</quote> 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><section><section><para><footnote><para> #: freeculture.xml:14259 msgid "" "See, for example, Marc Rotenberg, <quote>Fair Information Practices and the " "Architecture of Privacy (What Larry Doesn't Get),</quote> " "<citetitle>Stanford Technology Law Review</citetitle> 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, " "<citetitle>The Naked Crowd: Reclaiming Security and Freedom in an Anxious " "Age</citetitle> (New York: Random House, 2004) (mapping tradeoffs between " "technology and privacy)." msgstr "" #. PAGE BREAK 284 #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14253 msgid "" "It is this reality that explains the push of many to define " "<quote>privacy</quote> 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><section><section><indexterm><primary> #: freeculture.xml:14278 msgid "Data General" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14282 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><section><section><indexterm><primary> #: freeculture.xml:14289 msgid "Stallman, Richard" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14291 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><section><section><para> #: freeculture.xml:14299 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><section><section><indexterm><primary> #: freeculture.xml:14310 msgid "proprietary code" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14312 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><section><section><para> #: freeculture.xml:14321 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><section><section><indexterm><primary> #: freeculture.xml:14330 msgid "Torvalds, Linus" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14332 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 " "<quote>Linux</quote> kernel was added to produce the GNU/Linux operating " "system. <placeholder type=\"indexterm\" id=\"0\"/> <placeholder " "type=\"indexterm\" id=\"1\"/>" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14340 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><section><section><para> #: freeculture.xml:14351 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><section><section><indexterm><primary> #: freeculture.xml:14361 msgid "scientific journals" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14363 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 "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:14367 msgid "Lexis and Westlaw" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:14369 freeculture.xml:14405 msgid "journals in" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:14370 msgid "access to opinions of" msgstr "" #. PAGE BREAK 286 #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14372 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><section><section><indexterm><secondary> #: freeculture.xml:14387 msgid "access fees for material in" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:14388 msgid "license system for rebuilding of" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14390 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><section><section><para> #: freeculture.xml:14401 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><section><section><para> #: freeculture.xml:14407 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><section><section><para> #: freeculture.xml:14419 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 "" #. PAGE BREAK 287 #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14429 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." msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14443 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><section><section><title> #: freeculture.xml:14456 msgid "Rebuilding Free Culture: One Idea" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14459 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><section><section><indexterm><primary> #: freeculture.xml:14462 msgid "Stanford University" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14464 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 <emphasis>reasonable</emphasis> 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><section><section><para> #: freeculture.xml:14475 msgid "" "<emphasis>Simple</emphasis>—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 <quote>All</quote> or <quote>No</quote> 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><section><section><para> #: freeculture.xml:14493 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 (<quote>share and share alike</quote>). 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><section><section><para> #: freeculture.xml:14504 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><section><section><indexterm><primary> #: freeculture.xml:14514 msgid "Garlick, Mia" msgstr "" #. PAGE BREAK 289 #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14516 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 (<quote>content " "conducers,</quote> 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." msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14529 msgid "" "The aim is not to fight the <quote>All Rights Reserved</quote> 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><section><section><para> #: freeculture.xml:14542 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, <citetitle>Down and Out in the Magic " "Kingdom</citetitle>, 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><section><section><para> #: freeculture.xml:14549 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 <emphasis>increase</emphasis> sales of Cory's book." msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14561 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 "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:14566 msgid "Free for All (Wayner)" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:14567 msgid "Wayner, Peter" msgstr "" #. PAGE BREAK 290 #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14569 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 <citetitle>Free for " "All</citetitle>, 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 "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:14580 msgid "Leaphart, Walter" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:14581 msgid "Public Enemy" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:14583 msgid "rap music" msgstr "" #. f2. #. type: Content of: <book><chapter><section><section><para><footnote><para> #: freeculture.xml:14600 msgid "" "<citetitle>Willful Infringement: A Report from the Front Lines of the Real " "Culture Wars</citetitle> (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><section><section><para> #: freeculture.xml:14585 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 <quote>sampling license</quote> 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 <emphasis>legal</emphasis> 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 " "<quote>allow</quote> 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><section><section><para> #: freeculture.xml:14609 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 <quote>All Rights Reserved</quote> " "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 <quote>Some Rights " "Reserved,</quote> and gives many the chance to say it to others." msgstr "" #. PAGE BREAK 291 #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14621 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><section><section><para> #: freeculture.xml:14631 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><section><section><para> #: freeculture.xml:14639 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><section><title> #: freeculture.xml:14653 msgid "Them, soon" msgstr "" #. type: Content of: <book><chapter><section><para> #: freeculture.xml:14655 msgid "" "<emphasis role='strong'>We will</emphasis> 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><section><para> #: freeculture.xml:14662 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><section><section><title> #: freeculture.xml:14669 msgid "1. More Formalities" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14671 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><section><section><para> #: freeculture.xml:14678 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><section><section><para> #: freeculture.xml:14683 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 <quote>formalities</quote> are banished." msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14689 msgid "Why?" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14692 msgid "" "As I suggested in chapter <xref xrefstyle=\"select: labelnumber\" " "linkend=\"property-i\"/>, 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><section><section><para> #: freeculture.xml:14701 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 <emphasis>lack</emphasis> " "of formalities forces many into silence where they otherwise could speak." msgstr "" #. f1. #. type: Content of: <book><chapter><section><section><para><footnote><para> #: freeculture.xml:14715 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><section><section><para> #: freeculture.xml:14713 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><section><section><para> #: freeculture.xml:14723 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><section><section><section><title> #: freeculture.xml:14735 msgid "Registration and renewal" msgstr "" #. type: Content of: <book><chapter><section><section><section><para> #: freeculture.xml:14737 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><section><section><section><para> #: freeculture.xml:14750 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><section><section><section><indexterm><primary> #: freeculture.xml:14758 msgid "domain names" msgstr "" #. type: Content of: <book><chapter><section><section><section><indexterm><secondary> #: freeculture.xml:14759 msgid "domain name registration on" msgstr "" #. type: Content of: <book><chapter><section><section><section><indexterm><primary> #: freeculture.xml:14760 msgid "Web sites, domain name registration of" msgstr "" #. type: Content of: <book><chapter><section><section><section><para> #: freeculture.xml:14762 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><section><section><section><para> #: freeculture.xml:14772 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><section><section><section><title> #: freeculture.xml:14787 msgid "Marking" msgstr "" #. type: Content of: <book><chapter><section><section><section><para> #: freeculture.xml:14789 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><section><section><section><para> #: freeculture.xml:14799 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><section><section><section><para> #: freeculture.xml:14805 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><section><section><section><para><footnote><para> #: freeculture.xml:14822 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><section><section><section><para> #: freeculture.xml:14815 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 <quote>use unless someone " "complains.</quote> 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><section><section><section><para> #: freeculture.xml:14835 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><section><section><section><indexterm><secondary> #: freeculture.xml:14841 msgid "copyright marking of" msgstr "" #. type: Content of: <book><chapter><section><section><section><para> #: freeculture.xml:14843 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 <emphasis>solely</emphasis> 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><section><section><section><para> #: freeculture.xml:14855 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><section><section><section><para> #: freeculture.xml:14863 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><section><section><section><para> #: freeculture.xml:14868 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><section><section><title> #: freeculture.xml:14880 msgid "2. Shorter Terms" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14882 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><section><section><para><footnote><para> #: freeculture.xml:14895 msgid "" "<quote>A Radical Rethink,</quote> <citetitle>Economist</citetitle>, 366:8308 " "(25 January 2003): 15, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #74</ulink>." msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14887 msgid "" "In <citetitle>The Future of Ideas</citetitle>, 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 <citetitle>Eldred</citetitle> " "v. <citetitle>Ashcroft</citetitle>, the proposals became even more " "radical. <citetitle>The Economist</citetitle> 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><section><section><para> #: freeculture.xml:14902 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><section><section><orderedlist><listitem><para> #: freeculture.xml:14910 msgid "" "<emphasis>Keep it short:</emphasis> 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><section><section><orderedlist><listitem><para> #: freeculture.xml:14919 msgid "" "<emphasis>Keep it simple:</emphasis> The line between the public domain and " "protected content must be kept clear. Lawyers like the fuzziness of " "<quote>fair use,</quote> and the distinction between <quote>ideas</quote> " "and <quote>expression.</quote> 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 " "<quote>lawyer-free zone</quote> makes the complexities of <quote>fair " "use</quote> and <quote>idea/expression</quote> less necessary to navigate." msgstr "" #. type: Content of: <book><chapter><section><section><orderedlist><listitem><indexterm><primary> #: freeculture.xml:14931 msgid "veterans' pensions" msgstr "" #. f4. #. type: Content of: <book><chapter><section><section><orderedlist><listitem><para><footnote><para> #: freeculture.xml:14942 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><section><section><orderedlist><listitem><para> #: freeculture.xml:14934 msgid "" "<emphasis>Keep it alive:</emphasis> 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." msgstr "" #. (4) #. type: Content of: <book><chapter><section><section><orderedlist><listitem><para> #: freeculture.xml:14953 msgid "" "<emphasis>Keep it prospective:</emphasis> 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><section><section><para> #: freeculture.xml:14969 msgid "" "These changes together should produce an <emphasis>average</emphasis> " "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><section><section><para> #: freeculture.xml:14975 msgid "" "No doubt the extremists will call these ideas <quote>radical.</quote> (After " "all, I call them <quote>extremists.</quote>) But again, the term I " "recommended was longer than the term under Richard Nixon. How " "<quote>radical</quote> can it be to ask for a more generous copyright law " "than Richard Nixon presided over?" msgstr "" #. type: Content of: <book><chapter><section><section><title> #: freeculture.xml:14985 msgid "3. Free Use Vs. Fair Use" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:14989 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><section><section><para> #: freeculture.xml:14997 msgid "" "Our Constitution gives Congress the power to give authors <quote>exclusive " "right</quote> to <quote>their writings.</quote> Congress has given authors " "an exclusive right to <quote>their writings</quote> 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 <quote>my writing.</quote>" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:15005 msgid "Kaplan, Benjamin" msgstr "" #. f5. #. type: Content of: <book><chapter><section><section><para><footnote><para> #: freeculture.xml:15011 msgid "" "Benjamin Kaplan, <citetitle>An Unhurried View of Copyright</citetitle> (New " "York: Columbia University Press, 1967), 32." msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15007 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><section><section><blockquote><para><footnote><para> #: freeculture.xml:15024 msgid "Ibid., 56." msgstr "" #. type: Content of: <book><chapter><section><section><blockquote><para> #: freeculture.xml:15020 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><section><section><para> #: freeculture.xml:15029 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><section><section><para> #: freeculture.xml:15036 msgid "" "<emphasis>Term:</emphasis> 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><section><section><para> #: freeculture.xml:15049 msgid "" "<emphasis>Scope:</emphasis> 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 " "<quote>reuse</quote> 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><section><section><para> #: freeculture.xml:15063 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><section><section><para><footnote><para><indexterm><primary> #: freeculture.xml:15079 msgid "Goldstein, Paul" msgstr "" #. type: Content of: <book><chapter><section><section><para><footnote><para> #: freeculture.xml:15077 msgid "" "Paul Goldstein, <citetitle>Copyright's Highway: From Gutenberg to the " "Celestial Jukebox</citetitle> (Stanford: Stanford University Press, 2003), " "187–216. <placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15071 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><section><section><para> #: freeculture.xml:15085 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><section><section><para> #: freeculture.xml:15092 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><section><section><title> #: freeculture.xml:15102 msgid "4. Liberate the Music—Again" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15104 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><section><section><para> #: freeculture.xml:15111 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><section><section><para> #: freeculture.xml:15120 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><section><section><para> #: freeculture.xml:15127 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 <xref " "xrefstyle=\"select: labelnumber\" linkend=\"piracy\"/>, they enable four " "different kinds of sharing:" msgstr "" #. A. #. type: Content of: <book><chapter><section><section><orderedlist><listitem><para> #: freeculture.xml:15136 msgid "" "There are some who are using sharing networks as substitutes for purchasing " "CDs." msgstr "" #. B. #. type: Content of: <book><chapter><section><section><orderedlist><listitem><para> #: freeculture.xml:15141 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><section><section><orderedlist><listitem><para> #: freeculture.xml:15147 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><section><section><orderedlist><listitem><para> #: freeculture.xml:15153 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><section><section><para> #: freeculture.xml:15161 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><section><section><para> #: freeculture.xml:15169 msgid "" "As I said in chapter <xref xrefstyle=\"select: labelnumber\" " "linkend=\"piracy\"/>, 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><section><section><para> #: freeculture.xml:15177 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><section><section><para> #: freeculture.xml:15182 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><section><section><para> #: freeculture.xml:15194 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 "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:15208 msgid "cell phones, music streamed over" msgstr "" #. f8. #. type: Content of: <book><chapter><section><section><para><footnote><para> #: freeculture.xml:15228 msgid "" "See, for example, <quote>Music Media Watch,</quote> 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><section><section><para> #: freeculture.xml:15210 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 <emphasis>extremely</emphasis> easy to connect to services " "that give access to content, it will be <emphasis>easier</emphasis> to " "connect to services that give you access to content than it will be to " "download and store content <emphasis>on the many devices you will have for " "playing content</emphasis>. 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 " "<quote>free</quote> 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><section><section><para> #: freeculture.xml:15235 msgid "" "This point about the future is meant to suggest a perspective on the " "present: It is emphatically temporary. The <quote>problem</quote> 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 <quote>solving</quote> 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><section><section><para> #: freeculture.xml:15251 msgid "" "The answer begins with recognizing that there are different " "<quote>problems</quote> here to solve. Let's start with type D " "content—uncopyrighted content or copyrighted content that the artist " "wants shared. The <quote>problem</quote> 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><section><section><para> #: freeculture.xml:15262 msgid "" "Type C content raises a different <quote>problem.</quote> 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><section><section><para> #: freeculture.xml:15273 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 " "<quote>sharing</quote> of his content without his being compensated is less " "than ideal." msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15283 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 <quote>share</quote> 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><section><section><para> #: freeculture.xml:15294 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><section><section><para> #: freeculture.xml:15304 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><section><section><para> #: freeculture.xml:15314 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><section><section><para> #: freeculture.xml:15322 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><section><section><para> #: freeculture.xml:15326 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><section><section><para> #: freeculture.xml:15337 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><section><section><para><footnote><para><indexterm><primary> #: freeculture.xml:15344 freeculture.xml:15386 msgid "Promises to Keep (Fisher)" msgstr "" #. type: Content of: <book><chapter><section><section><para><footnote><para><indexterm><primary> #: freeculture.xml:15384 msgid "Fisher, William" msgstr "" #. type: Content of: <book><chapter><section><section><para><footnote><para> #: freeculture.xml:15350 msgid "" "<placeholder type=\"indexterm\" id=\"0\"/> William Fisher, " "<citetitle>Digital Music: Problems and Possibilities</citetitle> (last " "revised: 10 October 2000), available at <ulink " "url=\"http://free-culture.cc/notes/\">link #77</ulink>; William Fisher, " "<citetitle>Promises to Keep: Technology, Law, and the Future of " "Entertainment</citetitle> (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, <quote>Impose a Noncommercial Use Levy " "to Allow Free P2P File Sharing,</quote> available at <ulink " "url=\"http://free-culture.cc/notes/\">link #79</ulink>. For other proposals, " "see Lawrence Lessig, <quote>Who's Holding Back Broadband?</quote> " "<citetitle>Washington Post</citetitle>, 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, " "<citetitle>A Quick Case for Intellectual Property Use Fee " "(IPUF)</citetitle>, 3 March 2002, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #81</ulink>; Jefferson Graham, " "<quote>Kazaa, Verizon Propose to Pay Artists Directly,</quote> " "<citetitle>USA Today</citetitle>, 13 May 2002, available at <ulink " "url=\"http://free-culture.cc/notes/\">link #82</ulink>; Steven M. Cherry, " "<quote>Getting Copyright Right,</quote> IEEE Spectrum Online, 1 July 2002, " "available at <ulink url=\"http://free-culture.cc/notes/\">link #83</ulink>; " "Declan McCullagh, <quote>Verizon's Copyright Campaign,</quote> 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=\"1\"/> <placeholder type=\"indexterm\" " "id=\"2\"/> <placeholder type=\"indexterm\" id=\"3\"/>" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15346 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><section><section><para> #: freeculture.xml:15400 msgid "" "Fisher's proposal is careful and comprehensive. It raises a million " "questions, most of which he answers well in his upcoming book, " "<citetitle>Promises to Keep</citetitle>. 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 "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:15416 msgid "semiotic democracy" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:15417 msgid "semiotic" msgstr "" #. PAGE BREAK 307 #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15419 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 <quote>semiotic democracy</quote> 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><section><section><indexterm><primary> #: freeculture.xml:15432 msgid "MusicStore" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:15434 msgid "prices of" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15436 msgid "" "No doubt it would be difficult to calculate the proper measure of " "<quote>harm</quote> 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 " "<quote>free</quote> 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><section><section><indexterm><secondary> #: freeculture.xml:15451 msgid "cable vs. broadcast" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:15454 msgid "luxury theatres vs. video piracy in" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15456 msgid "" "This competition has already occurred against the background of " "<quote>free</quote> 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 " "<quote>competing with free.</quote> 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 " "<quote>first class</quote> seats, and meals served while you watch a " "movie—as they struggle and succeed in finding ways to compete with " "<quote>free.</quote>" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15468 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><section><section><para> #: freeculture.xml:15477 msgid "In summary, then, my proposal is this:" msgstr "" #. PAGE BREAK 308 #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15482 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><section><section><para> #: freeculture.xml:15489 msgid "We can minimize that harm while maximizing the benefit to innovation by" msgstr "" #. 1. #. type: Content of: <book><chapter><section><section><orderedlist><listitem><para> #: freeculture.xml:15495 msgid "guaranteeing the right to engage in type D sharing;" msgstr "" #. 2. #. type: Content of: <book><chapter><section><section><orderedlist><listitem><para> #: freeculture.xml:15499 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><section><section><orderedlist><listitem><para> #: freeculture.xml:15505 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><section><section><para> #: freeculture.xml:15510 msgid "" "But what if <quote>piracy</quote> doesn't disappear? What if there is a " "competitive market providing content at a low cost, but a significant number " "of consumers continue to <quote>take</quote> content for nothing? Should the " "law do something then?" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15516 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 <citetitle>x</citetitle>, or " "(b) to have a technology that is 50 percent secure but produces a market of " "five times <citetitle>x</citetitle>? 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><section><section><para> #: freeculture.xml:15530 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><section><section><title> #: freeculture.xml:15541 msgid "5. Fire Lots of Lawyers" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15543 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><section><section><para> #: freeculture.xml:15549 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 "" #. type: Content of: <book><chapter><section><section><indexterm><primary> #: freeculture.xml:15556 msgid "Nimmer, Melville" msgstr "" #. type: Content of: <book><chapter><section><section><indexterm><secondary> #: freeculture.xml:15557 msgid "Supreme Court challenge of" msgstr "" #. f10. #. type: Content of: <book><chapter><section><section><para><footnote><para> #: freeculture.xml:15568 msgid "" "Lawrence Lessig, <quote>Copyright's First Amendment</quote> (Melville " "B. Nimmer Memorial Lecture), <citetitle>UCLA Law Review</citetitle> 48 " "(2001): 1057, 1069–70." msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15559 msgid "" "The evidence of this bending is compelling. I'm attacked as a " "<quote>radical</quote> 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><section><section><para> #: freeculture.xml:15574 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><section><section><para><footnote><para> #: freeculture.xml:15584 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, <citetitle>Rethinking the Network " "Economy: The True Forces That Drive the Digital Marketplace</citetitle> (New " "York: Amacom, 2002), (reviewing his original view but expressing skepticism) " "with Stan J. Liebowitz, <quote>Will MP3s Annihilate the Record " "Industry?</quote> 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, <citetitle>Rethinking</citetitle>, 174–76. " "<placeholder type=\"indexterm\" id=\"0\"/>" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15579 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><section><section><para> #: freeculture.xml:15608 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><section><section><para> #: freeculture.xml:15616 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><section><section><para> #: freeculture.xml:15626 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><section><section><para> #: freeculture.xml:15634 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><section><section><para> #: freeculture.xml:15641 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><section><section><para> #: freeculture.xml:15650 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: <quote>Will it do good?</quote> When challenged about the " "expanding reach of the law, the lawyer answers, <quote>Why not?</quote>" msgstr "" #. type: Content of: <book><chapter><section><section><para> #: freeculture.xml:15659 msgid "" "We should ask, <quote>Why?</quote> 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:15668 msgid "Notes" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:15670 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 <ulink url=\"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:15690 msgid "Acknowledgments" msgstr "" #. type: Content of: <book><chapter><para> #: freeculture.xml:15692 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:15699 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:15712 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:15723 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, <quote>Wink,</quote> Roger Wood, <quote>Ximmbo da Jazz,</quote> " "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:15743 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:15752 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 "" #. type: Attribute 'href' of: <book><xi:include> #: freeculture.xml:15761 msgid "freeculture-about-edition-en.xml" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15771 msgid "" "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:15775 msgid "Copyright © 2004 Lawrence Lessig. Some rights reserved." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15779 msgid "<ulink url=\"http://free-culture.cc/\"/>" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15783 msgid "Published in 2015. First published 2004 by The Penguin Press." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15787 msgid "" "This English and Norwegian Bokmål edition was published by Petter " "Reinholdtsen with help from many volunteers." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15792 msgid "" "Typeset with <ulink url=\"http://dblatex.sourceforge.net\">dblatex</ulink> " "using the font Crimson Text." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15798 msgid "" "Excerpt from an editorial titled <quote>The Coming of Copyright " "Perpetuity,</quote> <citetitle>The New York Times</citetitle>, January 16, " "2003. Copyright © 2003 by The New York Times Co. Reprinted with " "permission." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15804 msgid "" "Cartoon in figure <xref xrefstyle=\"template:%n\" " "linkend=\"fig-1711-vcr-handgun-cartoonfig\"/> by Paul Conrad, copyright " "Tribune Media Services, Inc. All rights reserved. Reprinted with " "permission." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15810 msgid "" "Diagram in figure <xref xrefstyle=\"template:%n\" " "linkend=\"fig-1761-pattern-modern-media-ownership\"/> courtesy of the office " "of FCC Commissioner, Michael J. Copps." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15816 msgid "Cover created by Petter Reinholdtsen using inkscape." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15820 msgid "" "The quotes on the cover came from <ulink " "url=\"http://free-culture.cc/jacket/\"/>." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15825 msgid "" "Portrait on the cover was created 2013 by ActuaLitté and licensed under a " "Creative Commons Attribution-ShareAlike 2.0 license. It was downloaded from " "<ulink " "url=\"https://commons.wikimedia.org/wiki/File%3ALawrence_Lessig_(11014343366)_(cropped).jpg\"/>." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15832 msgid "Classifications:" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15836 msgid "(Dewey) 306.4, 306.40973, 306.46, 341.7582, 343.7309/9" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15845 msgid "(UDK) 347.78" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15849 msgid "(US Library of Congress) KF2979.L47 2004" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15853 msgid "(ACM CRCS) K.4.1" msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15857 msgid "" "Printing was sponsed by NUUG Foundation, <ulink " "url=\"http://www.nuugfoundation.no/\"/>." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15862 msgid "Includes index." msgstr "" #. type: Content of: <book><colophon><para> #: freeculture.xml:15869 msgid "" "The Docbook source is available from <ulink " "url=\"https://github.com/petterreinholdtsen/free-culture-lessig\"/>. Please " "report any issues with the book there." msgstr "" #. type: Attribute 'fileref' of: <book><colophon><para><informalfigure><graphic> #: freeculture.xml:15876 msgid "images/cc.svg" msgstr "" #. type: Content of: <book><colophon><para><informaltable><tgroup><thead><row><entry> #: freeculture.xml:15892 msgid "Format / MIME-type" msgstr "" #. type: Content of: <book><colophon><para><informaltable><tgroup><thead><row><entry> #: freeculture.xml:15893 msgid "ISBN" msgstr "" #. type: Content of: <book><colophon><para><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:15898 msgid "US Trade edition from lulu.com" msgstr "" #. type: Content of: <book><colophon><para><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:15899 msgid "978-82-690182-0-2" msgstr "" #. type: Content of: <book><colophon><para><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:15902 msgid "application/pdf" msgstr "" #. type: Content of: <book><colophon><para><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:15903 msgid "978-82-690182-1-9" msgstr "" #. type: Content of: <book><colophon><para><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:15906 msgid "application/epub+zip" msgstr "" #. type: Content of: <book><colophon><para><informaltable><tgroup><tbody><row><entry> #: freeculture.xml:15907 msgid "978-82-690182-2-6" msgstr "" #. type: Content of: <chapter><para> #: cover-text.xml:19 msgid "Lawrence Lessig" msgstr "" #. type: Content of: <chapter><para> #: cover-text.xml:28 msgid "" "<quote><citetitle>Free Culture</citetitle> is an entertaining and important " "look at the past and future of the cold war between the media industry and " "new technologies.</quote> — <emphasis>Marc Andreessen, cofounder of " "Netscape</emphasis>" msgstr "" #. type: Content of: <chapter><para> #: cover-text.xml:35 msgid "" "<quote><citetitle>Free Culture</citetitle> goes beyond illuminating the " "catastrophe to our culture of increasing regulation to show examples of how " "we can make a different future. These new-style heroes and examples are " "rooted in the traditions of the founding fathers in ways that seem obvious " "after reading this book. Recommended reading to those trying to unravel the " "shrill hype around <quote>intellectual property.</quote></quote> — " "<emphasis>Brewster Kahle, founder of the Internet Archive</emphasis>" msgstr "" #. type: Content of: <chapter><para> #: cover-text.xml:46 msgid "" "<quote>America needs a national conversation about the way in which " "so-called <quote>intellectual property rights</quote> have come to dominate " "the rights of scholars, researchers, and everyday citizens. A copyright " "cartel, bidding for absolute control over digital worlds, music, and movies, " "now has a veto over technological innovation and has halted most " "contributions to the public domain from which so many have benefited. The " "patent system has spun out of control, giving enormous power to entrenched " "interests, and even trademarks are being misused. Lawrence Lessig's book is " "essential reading for anyone who want to join this conversation. He explains " "how technology and the law are robbing us of the public domain; but for all " "his educated pessimism, Professor Lessig offers some solutions, too, because " "he recognizes that technology can be the catalyst for freedom. If you care " "about the future of innovation, read this book.</quote> — " "<emphasis>Dan Gillmor, author of <citetitle>We the media</citetitle>, an " "book on the collision of media and technology</emphasis>" msgstr "" #. type: Content of: <chapter><para> #: cover-text.xml:65 msgid "Published by Petter Reinholdtsen." msgstr "" #. type: Content of: <chapter><para> #: cover-text.xml:69 msgid "Photo: ActuaLitté CC BY-SA 2.0 from Wikimedia" msgstr ""