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<bookinfo>
<title>Free Culture</title>
the boards of the Public Library of Science, the Electronic Frontier
Foundation, and Public Knowledge. He was the winner of the Free
Software Foundation's Award for the Advancement of Free Software,
-twice listed in BusinessWeek's "e.biz 25," and named one of Scientific
-American's "50 visionaries." A graduate of the University of
+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.
<biblioid class="libraryofcongress">2003063276</biblioid>
</bookinfo>
-<!-- PAGE BREAK 1 -->
+<!--PAGE BREAK 1-->
<dedication id="salespoints">
<title></title>
<para>
<!-- PAGE BREAK 3 -->
<dedication id="alsobylessig">
<title></title>
-<para
+<para>
ALSO BY LAWRENCE LESSIG
</para>
<para>
Copyright © Lawrence Lessig. All rights reserved.
</para>
<para>
-Excerpt from an editorial titled "The Coming of Copyright Perpetuity,"
+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.
</para>
</colophon>
<!-- PAGE BREAK 7 -->
-<dedication>
+<dedication><title></title>
<para>
To Eric Eldred—whose work first drew me to this cause, and for whom
it continues still.
<primary>Pogue, David</primary>
</indexterm>
<para>
-At the end 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:
+<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:
</para>
<blockquote>
<para>
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.<footnote id="preface01"><para>
-David Pogue, "Don't Just Chat, Do Something," <citetitle>New York Times</citetitle>, 30 January 2000.
+David Pogue, <quote>Don't Just Chat, Do Something,</quote> <citetitle>New York Times</citetitle>, 30 January 2000.
</para></footnote>
</para>
</blockquote>
<para>
Pogue was skeptical of the core argument of the book—that
-software, or "code," functioned as a kind of law—and his review
+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 "drizzle, drazzle, druzzle, drome"-like simply flip a
+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
-"affect" us anymore.
+<quote>affect</quote> us anymore.
</para>
<para>
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
-<!-- PAGE BREAK 12 -->
+<!--PAGE BREAK 12-->
off. It is an argument about how the battles that now rage regarding life
-on-line have fundamentally affected "people who aren't online." There
+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.
</para>
<indexterm startref="idxpoguedavid" class='endofrange'/>
</para>
<para>
That tradition is the way our culture gets made. As I explain in the
-pages that follow, we come from a tradition of "free culture"—not
-"free" as in "free beer" (to borrow a phrase from the founder of the
+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<footnote>
<para>
Richard M. Stallman, <citetitle>Free Software, Free Societies</citetitle> 57 (Joshua Gay, ed. 2002).
-</para></footnote>), but "free" as in "free speech," "free markets,"
-"free trade," "free enterprise," "free will," and "free elections." A
+</para></footnote>), 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
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
-"permission culture"—a culture in which creators get to create
+<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.
</para>
<para>
-If we understood this change, I believe we would resist it. Not "we"
-on the Left or "you" on the Right, but we who have no stake in the
+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
culture deem fundamental.
</para>
<indexterm><primary>CodePink Women in Peace</primary></indexterm>
+<indexterm><primary>Stevens, Ted</primary></indexterm>
<para>
We saw a glimpse of this bipartisan outrage in the early summer of
2003. As the FCC considered changes in media ownership rules that
would relax limits on media concentration, an extraordinary coalition
generated more than 700,000 letters to the FCC opposing the change.
-As William Safire described marching "uncomfortably alongside CodePink
+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," he formulated perhaps
+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,
<indexterm><primary>Safire, William</primary></indexterm>
conservatives. The diffusion of power through local control, thereby
encouraging individual participation, is the essence of federalism and
the greatest expression of democracy.<footnote><para> William Safire,
-"The Great Media Gulp," <citetitle>New York Times</citetitle>, 22 May 2003.
+<quote>The Great Media Gulp,</quote> <citetitle>New York Times</citetitle>, 22 May 2003.
<indexterm><primary>Safire, William</primary></indexterm>
</para></footnote>
</para>
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 "merely" derivative.
+that this work is <quote>merely</quote> derivative.
</para>
<para>
I accept that criticism, if indeed it is a criticism. The work of a
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.
-<!-- PAGE BREAK 14 -->
+<!--PAGE BREAK 14-->
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
<!-- PAGE BREAK 16 -->
<chapter label="0" id="c-introduction">
<title>INTRODUCTION</title>
+<indexterm id='idxairtraffic' class='startofrange'>
+ <primary>air traffic, land ownership vs.</primary>
+</indexterm>
+<indexterm id='idxlandownership' class='startofrange'>
+ <primary>land ownership, air traffic and</primary>
+</indexterm>
+<indexterm id='idxproprigtair' class='startofrange'>
+ <primary>property rights</primary>
+ <secondary>air traffic vs.</secondary>
+</indexterm>
+<indexterm><primary>Wright brothers</primary></indexterm>
<para>
On December 17, 1903, on a windy North Carolina beach for just
shy of one hundred seconds, the Wright brothers demonstrated that a
At the time the Wright brothers invented the airplane, American
law held that a property owner presumptively owned not just the surface
of his land, but all the land below, down to the center of the earth,
-and all the space above, to
"an indefinite extent, upwards."<footnote><para>
+and all the space above, to
<quote>an indefinite extent, upwards.</quote><footnote><para>
St. George Tucker, <citetitle>Blackstone's Commentaries</citetitle> 3 (South Hackensack, N.J.:
Rothman Reprints, 1969), 18.
</para></footnote>
flew into the barn walls and died), the Causbys filed a lawsuit saying
that the government was trespassing on their land. The airplanes,
of course, never touched the surface of the Causbys' land. But if, as
-Blackstone, Kent, and Coke had said, their land reached to "an indefinite
-extent, upwards," then the government was trespassing on their
+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.
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
The Supreme Court agreed to hear the Causbys' case. Congress had
declared the airways public, but if one's property really extended to the
heavens, then Congress's declaration could well have been an unconstitutional
-"taking" of property without compensation. The Court acknowledged
-that "it is ancient doctrine that common law ownership of
-the land extended to the periphery of the universe." But Justice Douglas
+<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,
</para>
the public has a just claim.<footnote>
<para>
United States v. Causby, U.S. 328 (1946): 256, 261. The Court did find
-that there could be a "taking" if the government's use of its land
+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, "(Intellectual)
+suggested to me by Keith Aoki's wonderful piece, <quote>(Intellectual)
Property and Sovereignty: Notes Toward a Cultural Geography of
-Authorship," <citetitle>Stanford Law Review</citetitle> 48 (1996): 1293, 1333. See also Paul
+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.
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
</para>
</blockquote>
<para>
-"Common sense revolts at the idea."
+<quote>Common sense revolts at the idea.</quote>
</para>
<para>
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
-<!-- PAGE BREAK 18 -->
-conclusion that Douglas holds in a single line: "Common sense revolts
-at the idea." But whether it takes pages or a few words, it is the special
+<!--PAGE BREAK 18-->
+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.
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
+<indexterm><primary>Wright brothers</primary></indexterm>
<para>
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
hard to unite and stop the idea, and the technology, that the Wright
brothers had birthed. The Wright brothers spat airplanes into the
technological meme pool; the idea then spread like a virus in a chicken
-coop; farmers like the Causbys found themselves surrounded by "what
-seemed reasonable" given the technology that the Wrights had produced.
+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 "obvious" to everyone else—the power of
-"common sense"—would prevail. Their "private interest" would not be
+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.
</para>
+<indexterm startref='idxproprigtair' class='endofrange'/>
+<indexterm startref='idxlandownership' class='endofrange'/>
+<indexterm startref='idxairtraffic' class='endofrange'/>
+<indexterm id='idxarmstrongedwin' class='startofrange'>
+ <primary>Armstrong, Edwin Howard</primary>
+</indexterm>
<para>
-Edwin Howard Armstrong is one of America's forgotten inventor
+<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
seventeen miles away. The radio fell totally silent, as if dead, and
then with a clarity no one else in that room had ever heard from an
electrical device, it produced the sound of an announcer's voice:
-"This is amateur station W2AG at Yonkers, New York, operating on
-frequency modulation at two and a half meters."
+<quote>This is amateur station W2AG at Yonkers, New York, operating on
+frequency modulation at two and a half meters.</quote>
</para>
<para>
The audience was hearing something no one had thought possible:
and torn; it sounded like paper and not like a crackling forest
fire. … Sousa marches were played from records and a piano solo
and guitar number were performed. … The music was projected with a
-live-ness rarely if ever heard before from a radio "music
+live-ness rarely if ever heard before from a radio <quote>music
+box.
</quote><footnote><para>
Lawrence Lessing, <citetitle>Man of High Fidelity: Edwin Howard Armstrong</citetitle>
(Philadelphia: J. B. Lipincott Company, 1956), 209.
</para></footnote>
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.
-<!-- PAGE BREAK 20 -->
+<!--PAGE BREAK 20-->
</para>
<para>
RCA's president, David Sarnoff, a friend of Armstrong's, was eager
that Armstrong discover a way to remove static from AM radio. So
Sarnoff was quite excited when Armstrong told him he had a device
-that removed static from "radio." But when Armstrong demonstrated
+that removed static from <quote>radio.</quote> But when Armstrong demonstrated
his invention, Sarnoff was not pleased.
<indexterm><primary>Sarnoff, David</primary></indexterm>
</para>
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.<footnote><para> See "Saints: The Heroes and Geniuses of the
-Electronic Era," First Electronic Church of America, at
+RCA.<footnote><para> 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>.
now broke, in 1954 Armstrong wrote a short note to his wife and then
stepped out of a thirteenth-story window to his death.
</para>
+<indexterm startref='idxarmstrongedwin' class='endofrange'/>
<para>
This is how the law sometimes works. Not often this tragically, and
rarely with heroic drama, but sometimes, this is how it works. From
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
-<!-- PAGE BREAK 22 -->
+<!--PAGE BREAK 22-->
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.
Internet and American Life Project, 58 percent of Americans had access
to the Internet in 2002, up from 49 percent two years
before.<footnote><para>
-Amanda Lenhart, "The Ever-Shifting Internet Population: A New Look at
-Internet Access and the Digital Divide," Pew Internet and American
+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>.
</para></footnote>
<para>
We can glimpse a sense of this change by distinguishing between
commercial and noncommercial culture, and by mapping the law's
-regulation of each. By "commercial culture" I mean that part of our
+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
-"noncommercial culture" I mean all the rest. When old men sat around
+<quote>noncommercial culture</quote> I mean all the rest. When old men sat around
parks or on
<!-- PAGE BREAK 23 -->
street corners telling stories that kids and others consumed, that was
-noncommercial culture. When Noah Webster published his "Reader," or
+noncommercial culture. When Noah Webster published his <quote>Reader,</quote> or
Joel Barlow his poetry, that was commercial culture.
<indexterm><primary>Barlow, Joel</primary></indexterm>
<indexterm><primary>Webster, Noah</primary></indexterm>
course, if your stories were lewd, or if your song disturbed the
peace, then the law might intervene. But the law was never directly
concerned with the creation or spread of this form of culture, and it
-left this culture "free." The ordinary ways in which ordinary
+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.
publication, but also a privacy interest. By granting authors the exclusive
right to first publication, state copyright law gave authors the power to
control the spread of facts about them. See Samuel D. Warren and Louis
-D. Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890): 193,
+D. Brandeis, <quote>The Right to Privacy,</quote> Harvard Law Review 4 (1890): 193,
198–200.
<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
</para></footnote>
It doesn't seem this way to many. The battles over copyright and the
<!-- PAGE BREAK 25 -->
Internet seem remote to most. To the few who follow them, they seem
-mainly about a much simpler brace of questions—whether "piracy" will
-be permitted, and whether "property" will be protected. The "war" that
+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
"own terrorist war"<footnote><para>
-Amy Harmon, "Black Hawk Download: Moving Beyond Music, Pirates
-Use New Tools to Turn the Net into an Illicit Video Club," <citetitle>New York
+calls his
<quote>own terrorist war</quote><footnote><para>
+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.
</para></footnote>—has been framed as a battle about the
rule of law and respect for property. To know which side to take in this
If those really were the choices, then I would be with Jack Valenti
and the content industry. I, too, am a believer in property, and
especially in the importance of what Mr. Valenti nicely calls
-"creative property." I believe that "piracy" is wrong, and that the
-law, properly tuned, should punish "piracy," whether on or off the
+<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.
</para>
<para>
But those simple beliefs mask a much more fundamental question
and a much more dramatic change. My fear is that unless we come to see
-this change, the war to rid the world of Internet "pirates" will also rid our
+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.
</para>
<para>
control. The First Amendment protected creators against state control.
And as Professor Neil Netanel powerfully argues,<footnote>
<para>
-Neil W. Netanel, "Copyright and a Democratic Civil Society," <citetitle>Yale Law
+Neil W. Netanel, <quote>Copyright and a Democratic Civil Society,</quote> <citetitle>Yale Law
Journal</citetitle> 106 (1996): 283.
<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
</para></footnote>
<!-- PAGE BREAK 26. FIXME: Should "Is it" be "It is" ? -->
<para>
The story that follows is about this war. Is it not about the
-"centrality of technology" to ordinary life. I don't believe in gods,
+<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
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
-Like the Causbys' battle, this war is, in part, about "property." The
+Like the Causbys' 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 "property" are as obvious to most as the Causbys' claim about the
+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 "intellectual property" now assert. Most of us, like the Causbys,
+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
-"trespassing" upon legitimate claims of "property." It is as plain to
+<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.
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
+<indexterm><primary>Wright brothers</primary></indexterm>
<para>
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
-<!-- PAGE BREAK 27 -->
+<!--PAGE BREAK 27-->
the lucky Wright brothers, the Internet has not inspired a revolution
on its side.
</para>
amazed by the power of this idea of intellectual property and, more
importantly, its power to disable critical thought by policy makers
and citizens. There has never been a time in our history when more of
-our "culture" was as "owned" as it is now. And yet there has never
+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.
I don't mean to be mysterious. My own views are resolved. I believe it
was right for common sense to revolt against the extremism of the
Causbys. I believe it would be right for common sense to revolt
-against the extreme claims made today on behalf of "intellectual
-property." What the law demands today is increasingly as silly as a
+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.
<!-- PAGE BREAK 28 -->
</para>
<para>
-The struggle that rages just now centers on two ideas: "piracy" and
-"property." My aim in this book's next two parts is to explore these two
+The struggle 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.
</para>
<para>
<para>
The two sections set up the core claim of this book: that while the
Internet has indeed produced something fantastic and new, our
-government, pushed by big media to respond to this "something new," is
+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 "common
-sense" resolve how best to respond, we are allowing those most
+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.
</chapter>
<!-- PAGE BREAK 29 -->
<part id="c-piracy">
-<title>"PIRACY"</title>
+<title><quote>PIRACY</quote></title>
<partintro>
<!-- PAGE BREAK 30 -->
<indexterm id="idxmansfield1" class='startofrange'>
</indexterm>
<para>
Since the inception of the law regulating creative property, there has
-been a war against "piracy." The precise contours of this concept,
-"piracy," are hard to sketch, but the animating injustice is easy to
+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,
</para>
<indexterm startref="idxmansfield1" class='endofrange'/>
</blockquote>
<para>
-Today we are in the middle of another "war" against "piracy." The
+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
The network doesn't discriminate between the sharing of copyrighted
and uncopyrighted content. Thus has there been a vast amount of
sharing of copyrighted content. That sharing in turn has excited the
-war, as copyright owners fear the sharing will "rob the author of the
-profit."
+war, as copyright owners fear the sharing will <quote>rob the author of the
+profit.</quote>
</para>
<para>
The warriors have turned to the courts, to the legislatures, and
-increasingly to technology to defend their "property" against this
-"piracy." A generation of Americans, the warriors warn, is being
-raised to believe that "property" should be "free." Forget tattoos,
+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>!
</para>
<para>
-There's no doubt that "piracy" is wrong, and that pirates should be
+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 "piracy" in some context. For as the concept is increasingly
+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.
</para>
<para>
<indexterm><primary>Dreyfuss, Rochelle</primary></indexterm>
<para>
This view runs deep within the current debates. It is what NYU law
-professor Rochelle Dreyfuss criticizes as the "if value, then right"
+professor Rochelle Dreyfuss criticizes as the <quote>if value, then right</quote>
theory of creative property<footnote><para>
<!-- f2 -->
-See Rochelle Dreyfuss, "Expressive Genericity: Trademarks as Language
-in the Pepsi Generation," <citetitle>Notre Dame Law Review</citetitle> 65 (1990): 397.
+See Rochelle Dreyfuss, <quote>Expressive Genericity: Trademarks as Language
+in the Pepsi Generation,</quote> <citetitle>Notre Dame Law Review</citetitle> 65 (1990): 397.
</para></footnote>
—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.<footnote><para>
<!-- f3 -->
-Lisa Bannon, "The Birds May Sing, but Campers Can't Unless They Pay
-Up," <citetitle>Wall Street Journal</citetitle>, 21 August 1996, available at
+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, "Calling Off the Copyright War: In Battle of Property vs. Free
-Speech, No One Wins," <citetitle>Boston Globe</citetitle>, 24 November 2002.
+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.
<indexterm><primary>Zittrain, Jonathan</primary></indexterm>
</para></footnote>
-There was "value" (the songs) so there must have been a
-"right"—even against the Girl Scouts.
+There was <quote>value</quote> (the songs) so there must have been a
+<quote>right</quote>—even against the Girl Scouts.
</para>
<indexterm><primary>ASCAP</primary></indexterm>
<para>
This idea is certainly a possible understanding of how creative
property should work. It might well be a possible design for a system
<!-- PAGE BREAK 32 -->
-of law protecting creative property. But the "if value, then right"
+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.
</para>
more expense of doing business.
</para>
<indexterm><primary>Florida, Richard</primary></indexterm>
+<indexterm><primary>Rise of the Creative Class, The (Florida)</primary></indexterm>
<para>
But with the birth of the Internet, this natural limit to the reach of
the law has disappeared. The law controls not just the creativity of
commercial creators but effectively that of anyone. Although that
expansion would not matter much if copyright law regulated only
-"copying," when the law regulates as broadly and obscurely as it does,
+<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 with insanely complex and vague rules and with the threat
of obscenely severe penalties. We may
<!-- PAGE BREAK 33 -->
-be seeing, as Richard Florida writes, the "Rise of the Creative Class."<footnote>
+be seeing, as Richard Florida writes, the <quote>Rise of the Creative
+Class.</quote><footnote>
<para>
<!-- f4 -->
-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.
+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.
+
<indexterm><primary>Florida, Richard</primary></indexterm>
+<indexterm><primary>Rise of the Creative Class, The (Florida)</primary></indexterm>
</para></footnote>
Unfortunately, we are also seeing an extraordinary rise of regulation of
this creative class.
<para>
These burdens make no sense in our tradition. We should begin by
understanding that tradition a bit more and by placing in their proper
-context the current battles about behavior labeled "piracy."
+context the current battles about behavior labeled <quote>piracy.</quote>
</para>
</partintro>
<!-- PAGE BREAK 34 -->
<chapter label="1" id="creators">
<title>CHAPTER ONE: Creators</title>
+<indexterm id="idxanimadedcartoons" class='startofrange'>
+ <primary>animated cartoons</primary>
+</indexterm>
<para>
In 1928, 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>.
</blockquote>
<para>
Disney's then partner, and one of animation's most extraordinary
-talents, Ub Iwerks, put it more strongly: "I have never been so thrilled
-in my life. Nothing since has ever equaled it."
+talents, Ub Iwerks, put it more strongly: <quote>I have never been so thrilled
+in my life. Nothing since has ever equaled it.</quote>
<indexterm><primary>Iwerks, Ub</primary></indexterm>
</para>
<para>
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>: "Steamboat Bill," "The
-Simpleton" (Delille), "Mischief Makers" (Carbonara), "Joyful Hurry No. 1"
-(Baron), and "Gawky Rube" (Lakay). A sixth song, "The Turkey in the
-Straw," was already in the public domain. Letter from David Smith to
+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.
</para></footnote>
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 "Steamboat Bill,"
+Steamboat Bill, Jr., itself inspired by the song <quote>Steamboat Bill,</quote>
that we get Steamboat Willie, and then from Steamboat Willie, Mickey
Mouse.
</para>
<para>
-This "borrowing" was nothing unique, either for Disney or for the
+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.<footnote><para>
<!-- f3 -->
-He was also a fan of the public domain. See Chris Sprigman, "The Mouse
-that Ate the Public Domain," Findlaw, 5 March 2002, at
+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>.
</para></footnote>
So did many others. Early cartoons are filled with
own extraordinary talent, and then burned that mix into the soul of
his culture. Rip, mix, and burn.
</para>
+<indexterm startref="idxanimadedcartoons" class='endofrange'/>
<para>
This is a kind of creativity. It is a creativity that we should
remember and celebrate. There are some who would say that there is no
creativity except this kind. We don't need to go that far to recognize
-its importance. We could call this "Disney creativity," though that
-would be a bit misleading. It is, more precisely, "Walt Disney
-creativity"—a form of expression and genius that builds upon the
+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.
</para>
<para> In 1928, the culture that Disney was free to draw upon was
copyrighted.<footnote><para>
<!-- f4 -->
Until 1976, copyright law granted an author the possibility of two terms: an
-initial term and a renewal term. I have calculated the "average" term by
+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
<ulink url="http://free-culture.cc/notes/">link #6</ulink>.
</para></footnote>
That means that for thirty years, on average, the authors or
-copyright holders of a creative work had an "exclusive right" to control
+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.
</para>
<para>
At the end of a copyright term, a work passes into the public domain.
No permission is then needed to draw upon or use that work. No
-permission and, hence, no lawyers. The public domain is a "lawyer-free
-zone." Thus, most of the content from the nineteenth century was free
+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.
content from before the Great Depression.
</para>
<para>
-Of course, Walt Disney had no monopoly on "Walt Disney creativity."
+Of course, 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.
Americans tend to look down upon this form of culture. That's an
unattractive characteristic of ours. We're likely to misunderstand
much about manga, because few of us have ever read anything close to
-the stories that these "graphic novels" tell. For the Japanese, manga
-cover every aspect of social life. For us, comics are "men in tights."
+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
significantly. A doujinshi comic can thus take a mainstream comic and
develop it differently—with a different story line. Or the comic can
keep the character in character but change its look slightly. There is no
-formula for what makes the doujinshi sufficiently "different." But they
+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.
</para>
<para>
These copycat comics are not a tiny part of the manga market. They are
-huge. More than 33,000 "circles" of creators from across Japan produce
+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
in the law, at least, is that it is allowed to exist at all. Under
Japanese copyright law, which in this respect (on paper) mirrors
American copyright law, the doujinshi market is an illegal
-one. Doujinshi are plainly "derivative works." There is no general
+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 "taking" without
+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.
<para>
Yet this illegal market exists and indeed flourishes in Japan, and in
the view of many, it is precisely because it exists that Japanese manga
-flourish. As American graphic novelist Judd Winick said to me, "The
+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
<!-- PAGE BREAK 40 -->
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"
+books and not tracing them, but looking at them and copying them</quote>
and building from them.<footnote><para>
<!-- f5 -->
For an excellent history, see Scott McCloud, <citetitle>Reinventing Comics</citetitle> (New
York: Perennial, 2000).
</para></footnote>
</para>
+<indexterm><primary>Superman comics</primary></indexterm>
<para>
American comics now are quite different, Winick explains, in part
because of the legal difficulty of adapting comics the way doujinshi are
-allowed. Speaking of Superman, Winick told me, "there are these rules
-and you have to stick to them." There are things Superman "cannot"
-do. "As a creator, it's frustrating having to stick to some parameters
-which are fifty years old."
+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>
</para>
<indexterm startref="idxwinickjudd" class='endofrange'/>
<para>
wealthy and productive. Everyone would be worse off if doujinshi were
banned, so the law does not ban doujinshi.<footnote><para>
<!-- f6 -->
-See Salil K. Mehra, "Copyright and Comics in Japan: Does Law Explain
-Why All the Comics My Kid Watches Are Japanese Imports?" <citetitle>Rutgers Law
-Review</citetitle> 55 (2002): 155, 182. "[T]here might be a collective economic
+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."
+rights. This is essentially a prisoner's dilemma solved.</quote>
</para></footnote>
</para>
<para>
why individual copyright owners don't sue nonetheless. If the law has
no general exception for doujinshi, and indeed in some cases
individual manga artists have sued doujinshi artists, why is there not
-a more general pattern of blocking this "free taking" by the doujinshi
+a more general pattern of blocking this <quote>free taking</quote> by the doujinshi
culture?
</para>
<para>
I spent four wonderful months in Japan, and I asked this question
as often as I could. Perhaps the best account in the end was offered by
-a friend from a major Japanese law firm. "We don't have enough
-lawyers," he told me one afternoon. There "just aren't enough resources
-to prosecute cases like this."
+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>
</para>
<para>
This is a theme to which we will return: that regulation by law is a
be puzzled about something you hadn't thought through before.
</para>
<para>
-We live in a world that celebrates "property." I am one of those
+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
-
"intellectual property."<footnote><para>
+
<quote>intellectual property.</quote><footnote><para>
<!-- f7 -->
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 "property" rights—copyright, patents,
+describes a set of <quote>property</quote> rights—copyright, patents,
trademark, and trade-secret—but the nature of those rights is
very different.
<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para>
<para>
But it takes just a second's reflection to realize that there is
-plenty of value out there that "property" doesn't capture. I don't
-mean "money can't buy you love," but rather, value that is plainly
+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
unnoticed. Yet there was nothing wrong, at least under the law of the
day, with Disney's taking from Buster Keaton or from the Brothers
Grimm. There was nothing wrong with the taking from Keaton because
-Disney's use would have been considered "fair." There was nothing
+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.
</para>
</para>
<para>
Yet there is an obvious reluctance, even among Japanese lawyers, to
-say that the copycat comic artists are "stealing." This form of Walt
+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.
</para>
<para>
It's the same with a thousand examples that appear everywhere once you
begin to look. Scientists build upon the work of other scientists
-without asking or paying for the privilege. ("Excuse me, Professor
+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?") Acting companies
+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
<para>
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 "<emphasis>How</emphasis> free is this culture?"
+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
<!-- PAGE BREAK 44 -->
</chapter>
<chapter label="2" id="mere-copyists">
-<title>CHAPTER TWO: "Mere Copyists"</title>
+<title>CHAPTER TWO: <quote>Mere Copyists</quote></title>
<indexterm id="idxphotography" class='startofrange'>
<primary>photography</primary>
</indexterm>
<para>
In 1839, Louis Daguerre invented the first practical technology for
-producing what we would call "photographs." Appropriately enough, they
-were called "daguerreotypes." The process was complicated and
+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
<para>
Yet despite high prices, the demand for daguerreotypes was strong.
This pushed inventors to find simpler and cheaper ways to make
-"automatic pictures." William Talbot soon discovered a process for
-making "negatives." But because the negatives were glass, and had to
+<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
<para>
Eastman developed flexible, emulsion-coated paper film and placed
rolls of it in small, simple cameras: the Kodak. The device was
-marketed on the basis of its simplicity. "You press the button and we
-do the rest.
"<footnote><para>
+marketed on the basis of its simplicity. <quote>You press the button and we
+do the rest.
</quote><footnote><para>
<!-- f1 -->
Reese V. Jenkins, <citetitle>Images and Enterprise</citetitle> (Baltimore: Johns Hopkins University Press, 1975), 112.
</para></footnote> As he described in <citetitle>The Kodak Primer</citetitle>:
economic. It was social. Professional photography gave individuals a
glimpse of places they would never otherwise see. Amateur photography
gave them the ability to record their own lives in a way they had
-never been able to do before. As author Brian Coe notes, "For the
+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.
"<footnote><para>
+interpretation or bias.
</quote><footnote><para>
<!-- f5 -->
Coe, 58.
</para></footnote>
expression, of course. But it took years of training before they could
be deployed by amateurs in any useful or effective way. With the
Kodak, expression was possible much sooner and more simply. The
-barrier to expression was lowered. Snobs would sneer at its "quality";
+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
</para>
<para>
The arguments in favor of requiring permission will sound surprisingly
-familiar. The photographer was "taking" something from the person or
+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
the rule should be different for images from private spaces.<footnote>
<para>
<!-- f7 -->
-Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy,"
+Samuel D. Warren and Louis D. Brandeis, <quote>The Right to Privacy,</quote>
<citetitle>Harvard Law Review</citetitle> 4 (1890): 193.
<indexterm><primary>Brandeis, Louis D.</primary></indexterm>
<indexterm><primary>Warren, Samuel D.</primary></indexterm>
us. But in the ordinary case, the image can be captured without
clearing the rights to do the capturing.<footnote><para>
<!-- f8 -->
-See Melville B. Nimmer, "The Right of Publicity," <citetitle>Law and Contemporary
-Problems</citetitle> 19 (1954): 203; William L. Prosser, "Privacy," <citetitle>California Law
+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).
permission. Perhaps Eastman Kodak would have had to demonstrate
permission, too, before it developed the film upon which images were
captured. After all, if permission were not granted, then Eastman
-Kodak would be benefiting from the "theft" committed by the
+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 "image-right" infringement of its photographers. We could
+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.
growth in a democratic technology of expression would have been
realized. If you drive through San Francisco's Presidio, you might
see two gaudy yellow school buses painted over with colorful and
-striking images, and the logo "Just Think!" in place of the name of a
-school. But there's little that's "just" cerebral in the projects that
+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 "film" of digital cameras. Just Think!
+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
<para>
These buses are not cheap, but the technology they carry is
increasingly so. The cost of a high-quality digital video system has
-fallen dramatically. As one analyst puts it, "Five years ago, a good
+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.
"<footnote><para>
+professional quality for $595.
</quote><footnote><para>
<!-- f9 -->
-H. Edward Goldberg, "Essential Presentation Tools: Hardware and
-Software You Need to Create Digital Multimedia Presentations,"
+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>.
</para></footnote>
These buses are filled with technology that would have cost hundreds
of thousands just ten years ago. And it is now feasible to imagine not
just buses like this, but classrooms across the country where kids are
-learning more and more of something teachers call "media literacy."
+learning more and more of something teachers call <quote>media literacy.</quote>
</para>
<para>
<!-- PAGE BREAK 49 -->
-"Media literacy," as Dave Yanofsky, the executive director of Just
-Think!, puts it, "is the ability … to understand, analyze, and
+<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."
+the way people access it.</quote>
<indexterm><primary>Yanofsky, Dave</primary></indexterm>
</para>
<para>
-This may seem like an odd way to think about "literacy." For most
+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 "literate" people know
+and noticing split infinitives are the things that <quote>literate</quote> people know
about.
</para>
+<indexterm><primary>advertising</primary></indexterm>
<para>
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,<footnote><para>
<!-- f10 -->
Judith Van Evra, <citetitle>Television and Child Development</citetitle> (Hillsdale, N.J.:
-Lawrence Erlbaum Associates, 1990); "Findings on Family and TV
-Study," <citetitle>Denver Post</citetitle>, 25 May 1997, B6.
+Lawrence Erlbaum Associates, 1990); <quote>Findings on Family and TV
+Study,</quote> <citetitle>Denver Post</citetitle>, 25 May 1997, B6.
</para></footnote>
-it is increasingly important to understand the "grammar" of media. For
+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
<!-- PAGE BREAK 50 -->
USC School of Cinema-Television, explained to me, the grammar was
-about "the placement of objects, color, … rhythm, pacing, and
-texture."<footnote>
+about <quote>the placement of objects, color, … rhythm, pacing, and
+texture.</quote><footnote>
<para>
<!-- f11 -->
Interview with Elizabeth Daley and Stephanie Barish, 13 December
<indexterm><primary>Daley, Elizabeth</primary></indexterm>
</para></footnote>
But as computers open up an interactive space where a story is
-"played" as well as experienced, that grammar changes. The simple
+<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
a game without their feeling they have been led was not obvious, even
to a wildly successful author.<footnote><para>
<!-- f12 -->
-See Scott Steinberg, "Crichton Gets Medieval on PCs," E!online, 4
+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>; "Timeline," 22 November 2000,
+<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>.
</para></footnote>
<indexterm><primary>computer games</primary></indexterm>
<para>
This skill is precisely the craft a filmmaker learns. As Daley
-describes, "people are very surprised about how they are led through a
+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." If you know you were led through a film, the film has failed.
+led.</quote> If you know you were led through a film, the film has failed.
</para>
<para>
Yet the push for an expanded literacy—one that goes beyond text
</para>
</blockquote>
<para>
-"Read-only." Passive recipients of culture produced elsewhere.
+<quote>Read-only.</quote> Passive recipients of culture produced elsewhere.
Couch potatoes. Consumers. This is the world of media from the
twentieth century.
</para>
the tools that enable the writing to lead or mislead. The aim of any
literacy,
<!-- PAGE BREAK 51 -->
-and this literacy in particular, is to "empower people to choose the
+and this literacy in particular, is to <quote>empower people to choose the
appropriate language for what they need to create or
-express."<footnote>
+express.</quote><footnote>
<para>
<!-- f13 -->
Interview with Daley and Barish.
<indexterm><primary>Barish, Stephanie</primary></indexterm>
-</para></footnote> It is to enable students "to communicate in the
-language of the twenty-first century.
"<footnote><para>
+</para></footnote> It is to enable students <quote>to communicate in the
+language of the twenty-first century.
</quote><footnote><para>
<!-- f14 -->
Ibid.
</para></footnote>
The class was held on Friday afternoons, and it created a relatively
new problem for the school. While the challenge in most classes was
getting the kids to come, the challenge in this class was keeping them
-away. The "kids were showing up at 6 A.M. and leaving at 5 at night,"
+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.
</para>
<para>
-Using whatever "free web stuff they could find," and relatively simple
-tools to enable the kids to mix "image, sound, and text," Barish said
+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 "gave them a tool
+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," Barish explained. That tool succeeded in creating
+it,</quote> Barish explained. That tool succeeded in creating
expression—far more successfully and powerfully than could have
-been created using only text. "If you had said to these students, `you
+been created using only text. <quote>If you had said to these students, `you
have to do it in text,' they would've just thrown their hands up and
-gone and done something else," Barish described, in part, no doubt,
+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
<para>
<!-- PAGE BREAK 52 -->
-"But isn't education about teaching kids to write?" I asked. In part,
+<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 "constructing
-meaning." To say that that means just writing is like saying teaching
+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
video, he can play a video game, he can do graffiti all over your
walls, he can take your car apart, and he can do all sorts of other
things. He just can't read your text. So Johnny comes to school and
-you say, "Johnny, you're illiterate. Nothing you can do matters."
+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, "Well, with all these things that you
+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." Not by giving a kid a video
-camera and … saying, "Let's go have fun with the video camera and
-make a little movie." But instead, really help you take these elements
+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. …
+about the topic.…
</para>
<para>
That empowers enormously. And then what happens, of
course, is eventually, as it has happened in all these classes, they
-bump up against the fact, "I need to explain this and I really need
-to write something." And as one of the teachers told Stephanie,
+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.
</para>
<para>
your hoops. They actually needed to use a language that they
<!-- PAGE BREAK 53 -->
didn't speak very well. But they had come to understand that they
-had a lot of power with this language."
+had a lot of power with this language.
</para>
+<!-- FIXME removed a " from the end of the previous paragraph that did
+ not match with any start quote. -->
</blockquote>
<para>
When two planes crashed into the World Trade Center, another into the
<para>
These retellings had an increasingly familiar feel. There was music
scored for the intermissions, and fancy graphics that flashed across
-the screen. There was a formula to interviews. There was "balance,"
+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, "news as entertainment," even if the
+increasingly come to expect it, <quote>news as entertainment,</quote> even if the
entertainment is tragedy.
</para>
<indexterm><primary>ABC</primary></indexterm>
<indexterm><primary>CBS</primary></indexterm>
<para>
-But in addition to this produced news about the "tragedy of September
-11," those of us tied to the Internet came to see a very different
+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
Kodak, the Internet enables people to capture images. And like in a
movie
<!-- PAGE BREAK 54 -->
-by a student on the "Just Think!" bus, the visual images could be mixed
+by a student on the <quote>Just Think!</quote> bus, the visual images could be mixed
with sound or text.
</para>
<para>
in those elections. The cycle of these elections has become totally
professionalized and routinized. Most of us think this is democracy.
</para>
+<indexterm><primary>Tocqueville, Alexis de</primary></indexterm>
<para>
But democracy has never just been about elections. Democracy
means rule by the people, but rule means something more than mere
elections. In our tradition, it also means control through reasoned
discourse. This was the idea that captured the imagination of Alexis
de Tocqueville, the nineteenth-century French lawyer who wrote the
-most important account of early "Democracy in America." It wasn't
+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 "right" result; they tried to
-persuade each other of the "right" result, and in criminal cases at
+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.<footnote><para>
<!-- f15 -->
place, there is no systematic effort to enable citizen deliberation. Some
are pushing to create just such an institution.<footnote><para>
<!-- f16 -->
-Bruce Ackerman and James Fishkin, "Deliberation Day," <citetitle>Journal of
+Bruce Ackerman and James Fishkin, <quote>Deliberation Day,</quote> <citetitle>Journal of
Political Philosophy</citetitle> 10 (2) (2002): 129.
</para></footnote>
And in some towns in New England, something close to deliberation
remains. But for most of us for most of the time, there is no time or
-place for "democratic deliberation" to occur.
+place for <quote>democratic deliberation</quote> to occur.
</para>
<para>
More bizarrely, there is generally not even permission for it to
is having an effect.
<indexterm><primary>Dean, Howard</primary></indexterm>
</para>
+<indexterm><primary>Thurmond, Strom</primary></indexterm>
<para>
One direct effect is on stories that had a different life cycle in the
mainstream media. The Trent Lott affair is an example. When Lott
-"misspoke" at a party for Senator Strom Thurmond, essentially praising
+<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 "misspeaking" emerged. Finally, the story
+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.<footnote><para>
<!-- f18 -->
-Noah Shachtman, "With Incessant Postings, a Pundit Stirs the Pot," New
+Noah Shachtman, <quote>With Incessant Postings, a Pundit Stirs the Pot,</quote> New
York Times, 16 January 2003, G5.
</para></footnote>
<indexterm><primary>Lott, Trent</primary></indexterm>
<!-- PAGE BREAK 57 -->
from the mainstream press. As Dave Winer, one of the fathers of this
movement and a software author for many decades, told me, another
-difference is the absence of a financial "conflict of interest." "I think you
-have to take the conflict of interest" out of journalism, Winer told me.
-"An amateur journalist simply doesn't have a conflict of interest, or the
+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."
+get it out of the way.</quote>
</para>
<indexterm><primary>CNN</primary></indexterm>
<para>
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 <emphasis>that</emphasis> they were writing "the story.")
+told her that <emphasis>they</emphasis> were writing <quote>the story.</quote>)
</para>
<para> Blog space gives amateurs a way to enter the
-debate—"amateur" not in the sense of inexperienced, but in 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.<footnote><para>
<!-- f20 -->
-John Schwartz, "Loss of the Shuttle: The Internet; A Wealth of
-Information Online," <citetitle>New York Times</citetitle>, 2 February 2003, A28; Staci
-D. Kramer, "Shuttle Disaster Coverage Mixed, but Strong Overall,"
+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>.
</para></footnote>
And it drives readers to read across the range of accounts and
-"triangulate," as Winer puts it, the truth. Blogs, Winer says, are
-"communicating directly with our constituency, and the middle man is
-out of it"—with all the benefits, and costs, that might entail.
+<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.
</para>
<para>
Winer is optimistic about the future of journalism infected
-with blogs. "It's going to become an essential skill," Winer predicts,
+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 "journalism" is happy about this—some journalists
+not clear that <quote>journalism</quote> is happy about this—some journalists
have been told to curtail their blogging.<footnote>
<para>
<!-- f21 -->
-See Michael Falcone, "Does an Editor's Pencil Ruin a Web Log?" <citetitle>New
-York Times</citetitle>, 29 September 2003, C4. ("Not all news organizations have
+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.")
+that dealt with some of the issues and people he was covering.</quote>)
<indexterm><primary>CNN</primary></indexterm>
+<indexterm><primary>Olafson, Steve</primary></indexterm>
</para></footnote>
-But it is clear that we are still in transition. "A
+But it is clear that we are still in transition. <quote>A
<!-- PAGE BREAK 58 -->
-lot of what we are doing now is warm-up exercises," Winer told me.
+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, "we will
-be the last thing that gets shut down."
+of the Internet (meaning infringing on copyright), Winer said, <quote>we will
+be the last thing that gets shut down.</quote>
</para>
<para>
-This speech affects democracy. Winer thinks that happens because "you
-don't have to work for somebody who controls, [for] a gatekeeper."
+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
<indexterm id="idxbrownjohnseely" class='startofrange'>
<primary>Brown, John Seely</primary>
</indexterm>
+<indexterm id='idxadvertising1' class='startofrange'>
+ <primary>advertising</primary>
+</indexterm>
<para>
John Seely Brown is the chief scientist of the Xerox Corporation.
-His work, as his Web site describes it, is "human learning and … the
-creation of knowledge ecologies for creating … innovation."
+His work, as his Web site describes it, is <quote>human learning and … the
+creation of knowledge ecologies for creating … innovation.</quote>
</para>
<para>
Brown thus looks at these technologies of digital creativity a bit
affect learning.
</para>
<para>
-As Brown believes, we learn by tinkering. When "a lot of us grew up,"
-he explains, that tinkering was done "on motorcycle engines, lawnmower
-engines, automobiles, radios, and so on." But digital technologies
+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
<!-- PAGE BREAK 59 -->
take the commercial apart and manipulate it, tinker with it to see how
it does what it does. Digital technologies launch a kind of bricolage,
-or "free collage," as Brown calls it. Many get to add to or transform
+or <quote>free collage,</quote> as Brown calls it. Many get to add to or transform
the tinkering of many others.
</para>
<para>
FS/OSS technology works can tinker with the code.
</para>
<para>
-This opportunity creates a "completely new kind of learning platform,"
-as Brown describes. "As soon as you start doing that, you …
+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." Each effort is a kind of
-apprenticeship. "Open source becomes a major apprenticeship platform."
+if they can improve it.</quote> Each effort is a kind of
+apprenticeship. <quote>Open source becomes a major apprenticeship platform.</quote>
</para>
<para>
-In this process, "the concrete things you tinker with are abstract.
-They are code." Kids are "shifting to the ability to tinker in the
+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." The more you improve, the more you
+you tinker the more you improve.</quote> The more you improve, the more you
learn.
</para>
<para>
This same thing happens with content, too. And it happens in the same
collaborative way when that content is part of the Web. As Brown puts
-it, "the Web [is] the first medium that truly honors multiple forms of
-intelligence." Earlier technologies, such as the typewriter or word
+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. "The Web … says if you are musical, if you are artistic, if
+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."
+these multiple forms of intelligence.</quote>
</para>
+<indexterm startref='idxadvertising1' class='endofrange'/>
<indexterm><primary>Barish, Stephanie</primary></indexterm>
<para>
Brown is talking about what Elizabeth Daley, Stephanie Barish, and
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 "right to
-tinker" as it applies to computer science and to knowledge in
+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.<footnote><para>
<!-- f22 -->
-See, for example, Edward Felten and Andrew Appel, "Technological Access
-Control Interferes with Noninfringing Scholarship," <citetitle>Communications
+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.
</para></footnote>
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.
</para>
<para>
-"This is where education in the twenty-first century is going," Brown
-explains. We need to "understand how kids who grow up digital think
-and want to learn."
+<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>
</para>
<para>
-"Yet," as Brown continued, and as the balance of this book will
-evince, "we are building a legal system that completely suppresses the
+<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."
+system that closes down that part of the brain.</quote>
</para>
<indexterm startref="idxbrownjohnseely" class='endofrange'/>
<para>
the law to close down that technology.
</para>
<para>
-"No way to run a culture," as Brewster Kahle, whom we'll meet in
+<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.
</para>
</chapter>
<chapter label="3" id="catalogs">
<title>CHAPTER THREE: Catalogs</title>
+<indexterm><primary>RPI</primary><see>Rensselaer Polytechnic Institute (RPI)</see></indexterm>
+<indexterm id="idxrensselaer" class='startofrange'>
+ <primary>Rensselaer Polytechnic Institute (RPI)</primary>
+</indexterm>
<para>
In the fall of 2002, Jesse Jordan of Oceanside, New York, enrolled as
a freshman at Rensselaer Polytechnic Institute, in Troy, New York.
<!-- PAGE BREAK 62 -->
brought the Internet much closer to all of us by fantastically
improving the quality of search on the network. Specialty search
-engines can do this even better. The idea of "intranet" search
+engines 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
them, he was increasingly astonished.
</para>
<para>
-"It was absurd," he told me. "I don't think I did anything
+<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"—again, a <emphasis>search engine</emphasis>,
+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.
</para>
+<indexterm><primary>statutory damages</primary></indexterm>
<para>
But the RIAA branded Jesse a pirate. They claimed he operated a
-network and had therefore "willfully" violated copyright laws. They
+network and had therefore <quote>willfully</quote> violated copyright laws. They
<!-- PAGE BREAK 64 -->
demanded that he pay them the damages for his wrong. For cases of
-"willful infringement," the Copyright Act specifies something lawyers
-call "statutory damages." These damages permit a copyright owner to
+<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.
student at RPI, one at Michigan Technical University, and one at
Princeton. Their situations were similar to Jesse's. Though each case
was different in detail, the bottom line in each was exactly the same:
-huge demands for "damages" that the RIAA claimed it was entitled to.
+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
2001.<footnote><para>
<!-- f1 -->
-Tim Goral, "Recording Industry Goes After Campus P-2-P Networks:
-Suit Alleges $97.8 Billion in Damages," <citetitle>Professional Media Group LCC</citetitle> 6
+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.
</para></footnote>
</para>
+<indexterm startref="idxrensselaer" class='endofrange'/>
<para>
Jesse called his parents. They were supportive but a bit frightened.
An uncle was a lawyer. He began negotiations with the RIAA. They
$12,000 from summer jobs and other employment. They demanded
$12,000 to dismiss the case.
</para>
+<indexterm><primary>Oppenheimer, Matt</primary></indexterm>
<para>
The RIAA wanted Jesse to admit to doing something wrong. He
refused. They wanted him to agree to an injunction that would
technology for the rest of his life. He refused. They made him
understand that this process of being sued was not going to be
pleasant. (As Jesse's father recounted to me, the chief lawyer on the
-case, Matt Oppenheimer, told Jesse, "You don't want to pay another
-visit to a dentist like me.") And throughout, the RIAA insisted it
+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.
</para>
<para>
So Jesse faced a mafia-like choice: $250,000 and a chance at winning,
or $12,000 and a settlement.
</para>
+<indexterm>
+<primary>artists</primary>
+<secondary>recording industry payments to</secondary>
+</indexterm>
<para>
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.
and direct policy. So where is the morality in taking money from a
student for running a search engine?<footnote><para>
<!-- f3 -->
-Douglas Lichtman makes a related point in "KaZaA and Punishment,"
+Douglas Lichtman makes a related point in <quote>KaZaA and Punishment,</quote>
<citetitle>Wall Street Journal</citetitle>, 10 September 2003, A24.
</para></footnote>
</para>
</blockquote>
<para>
Jesse's parents betray a certain pride in their reluctant activist. As
-his father told me, Jesse "considers himself very conservative, and so do
+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."
+wrong message. And he wants to correct the record.</quote>
</para>
<!-- PAGE BREAK 66 -->
</chapter>
<chapter label="4" id="pirates">
-<title>CHAPTER FOUR: "Pirates"</title>
+<title>CHAPTER FOUR: <quote>Pirates</quote></title>
<para>
-If "piracy" means using the creative property of others without
-their permission—if "if value, then right" is true—then the history of
+If <quote>piracy</quote> means 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
-"big media" today—film, records, radio, and cable TV—was born of a
+<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.
</para>
<!-- f1 -->
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 "adventures" with copyright and patent.
+which details Edison's <quote>adventures</quote> with copyright and patent.
<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para></footnote>
Creators and directors migrated from the East Coast to California in
the early twentieth century in part to escape controls that patents
granted the inventor of filmmaking, Thomas Edison. These controls were
-exercised through a monopoly "trust," the Motion Pictures Patents
+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
<!-- f2 -->
J. A. Aberdeen, <citetitle>Hollywood Renegades: The Society of Independent Motion
Picture Producers</citetitle> (Cobblestone Entertainment, 2000) and expanded texts
-posted at "The Edison Movie Monopoly: The Motion Picture Patents
-Company vs. the Independent Outlaws," available at
+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, "From
+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" (September 2002), University of
+the Propertization of Copyright</quote> (September 2002), University of
Chicago Law School, James M. Olin Program in Law and Economics,
-Working Paper No. 159. </para></footnote>
+Working Paper No. 159.
+<indexterm><primary>broadcast flag</primary></indexterm>
+</para></footnote>
<indexterm><primary>Fox, William</primary></indexterm>
<indexterm><primary>General Film Company</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para>
</blockquote>
<para>
-The Napsters of those days, the "independents," were companies like
+The Napsters of those days, the <quote>independents,</quote> were companies like
Fox. And no less than today, these independents were vigorously
-resisted. "Shooting was disrupted by machinery stolen, and
+resisted. <quote>Shooting was disrupted by machinery stolen, and
`accidents' resulting in loss of negatives, equipment, buildings and
-sometimes life and limb frequently occurred.
"<footnote><para>
+sometimes life and limb frequently occurred.
</quote><footnote><para>
<!-- f3 -->
-Marc Wanamaker, "The First Studios," <citetitle>The Silents Majority</citetitle>, archived at
+Marc Wanamaker, <quote>The First Studios,</quote> <citetitle>The Silents Majority</citetitle>, archived at
<ulink url="http://free-culture.cc/notes/">link #12</ulink>.
</para></footnote>
That led the independents to flee the East
<para>
Of course, California grew quickly, and the effective enforcement
of federal law eventually spread west. But because patents grant the
-patent holder a truly "limited" monopoly (just seventeen years at that
+patent holder a truly <quote>limited</quote> monopoly (just seventeen years at that
<!-- PAGE BREAK 68 -->
time), by the time enough federal marshals appeared, the patents had
<indexterm id="idxfourneauxhenri" class='startofrange'>
<primary>Fourneaux, Henri</primary>
</indexterm>
+<indexterm><primary>Russel, Phil</primary></indexterm>
<para>
At the time that Edison and Henri Fourneaux invented machines
for reproducing music (Edison the phonograph, Fourneaux the player
piano), the law gave composers the exclusive right to control copies of
their music and the exclusive right to control public performances of
their music. In other words, in 1900, if I wanted a copy of Phil Russel's
-1899 hit "Happy Mose," the law said I would have to pay for the right
+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.
</para>
<indexterm><primary>Beatles</primary></indexterm>
<para>
-But what if I wanted to record "Happy Mose," using Edison's phonograph
+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
-"public performance" if I recorded the song in my own house (even
+<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
</para></footnote>
</para>
</blockquote>
+<indexterm><primary>Sousa, John Philip</primary></indexterm>
<para>
The innovators who developed the technology to record other
-people's works were "sponging upon the toil, the work, the talent, and
-genius of American composers,
"<footnote><para>
+people's works were <quote>sponging upon the toil, the work, the talent, and
+genius of American composers,
</quote><footnote><para>
<!-- f5 -->
To Amend and Consolidate the Acts Respecting Copyright, 223
(statement of Nathan Burkan, attorney for the Music Publishers Association).
</para></footnote>
-and the "music publishing industry"
-was thereby
"at the complete mercy of this one pirate."<footnote><para>
+and the <quote>music publishing industry</quote>
+was thereby
<quote>at the complete mercy of this one pirate.</quote><footnote><para>
<!-- f6 -->
To Amend and Consolidate the Acts Respecting Copyright, 226
(statement of Nathan Burkan, attorney for the Music Publishers Association).
</para></footnote>
As John Philip
-Sousa put it, in as direct a way as possible, "When they make money
-out of my pieces, I want a share of it.
"<footnote><para>
+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><footnote><para>
<!-- f7 -->
To Amend and Consolidate the Acts Respecting Copyright, 23
(statement of John Philip Sousa, composer).
<para>
These arguments have familiar echoes in the wars of our day. So, too,
do the arguments on the other side. The innovators who developed the
-player piano argued that "it is perfectly demonstrable that the
+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." Rather, the machines
+of anything he had before their introduction.</quote> Rather, the machines
increased the sales of sheet music.<footnote><para>
<!-- f8 -->
(statement of Albert Walker, representative of the Auto-Music
Perforating Company of New York).
</para></footnote> In any case, the innovators argued, the job of
-Congress was "to consider first the interest of [the public], whom
-they represent, and whose servants they are." "All talk about
-`theft,'" the general counsel of the American Graphophone Company
-wrote, "is the merest claptrap, for there exists no property in ideas
+Congress was <quote>to consider first the interest of [the public], whom
+they represent, and whose servants they are.</quote> <quote>All talk about
+`theft,'</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.
"<footnote><para>
+statute.
</quote><footnote><para>
<!-- f9 -->
To Amend and Consolidate the Acts Respecting Copyright, 376 (prepared
memorandum of Philip Mauro, general patent counsel of the American
<para>
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 "mechanical
-reproductions" of their music. But rather than simply granting 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
song, so long as they pay the original composer a fee set by the law.
</para>
<para>
-American law ordinarily calls this a "compulsory license," but I will
-refer to it as a "statutory license." A statutory license is a license
+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)
</section>
<section id="radio">
<title>Radio</title>
+<indexterm id='idxartistspayments1' class='startofrange'>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
<para>
Radio was also born of piracy.
</para>
<para>
When a radio station plays a record on the air, that constitutes a
-
"public performance" of the composer's work.<footnote><para>
+
<quote>public performance</quote> of the composer's work.<footnote><para>
<!-- f12 -->
See 17 <citetitle>United States Code</citetitle>, sections 106 and 110. At the beginning,
-record companies printed "Not Licensed for Radio Broadcast" and other
+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, "From Edison to the Broadcast
+Cir. 1940). See also Randal C. Picker, <quote>From Edison to the Broadcast
Flag: Mechanisms of Consent and Refusal and the Propertization of
-Copyright," <citetitle>University of Chicago Law Review</citetitle> 70 (2003): 281.
+Copyright,</quote> <citetitle>University of Chicago Law Review</citetitle> 70 (2003): 281.
<indexterm><primary>Hand, Learned</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para></footnote>
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 "Happy Birthday" sung on the radio by the
+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
hit. Under our law, every time a radio station plays your song, you
get some money. But Madonna gets nothing, save the indirect effect on
the sale of her CDs. The public performance of her recording is not a
-"protected" right. The radio station thus gets to
+<quote>protected</quote> right. The radio station thus gets to
<emphasis>pirate</emphasis> the value of Madonna's work without paying
her anything.
</para>
the choice for him or her, the law gives the radio station the right
to take something for nothing.
</para>
+<indexterm startref='idxartistspayments1' class='endofrange'/>
</section>
<section id="cabletv">
<title>Cable TV</title>
</para>
<indexterm><primary>Anello, Douglas</primary></indexterm>
<indexterm><primary>Burdick, Quentin</primary></indexterm>
+<indexterm><primary>Hyde, Rosel H.</primary></indexterm>
<para>
Broadcasters and copyright owners were quick to attack this theft.
Rosel Hyde, chairman of the FCC, viewed the practice as a kind of
-
"unfair and potentially destructive competition."<footnote><para>
+
<quote>unfair and potentially destructive competition.</quote><footnote><para>
<!-- f13 -->
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).
+<indexterm><primary>Hyde, Rosel H.</primary></indexterm>
</para></footnote>
-There may have been a "public interest" in spreading the reach of cable
+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, "Does public
-interest dictate that you use somebody else's property?
"<footnote><para>
+of Broadcasters, asked Senator Quentin Burdick during testimony, <quote>Does public
+interest dictate that you use somebody else's property?
</quote><footnote><para>
<!-- f14 -->
Copyright Law Revision—CATV, 116 (statement of Douglas A. Anello,
general counsel of the National Association of Broadcasters).
</para></footnote>
</para>
</blockquote>
+<indexterm><primary>Heston, Charlton</primary></indexterm>
<para>
-These were "free-ride[rs]," Screen Actor's Guild president Charlton
-Heston said, who were "depriving actors of
-compensation.
"<footnote><para>
+These were <quote>free-ride[rs],</quote> Screen Actor's Guild president Charlton
+Heston said, who were <quote>depriving actors of
+compensation.
</quote><footnote><para>
<!-- f17 -->
Copyright Law Revision—CATV, 209 (statement of Charlton Heston,
president of the Screen Actors Guild).
-</para></footnote>
+<indexterm><primary>Heston, Charlton</primary></indexterm>
+</para>
+</footnote>
</para>
<para>
But again, there was another side to the debate. As Assistant Attorney
</para>
<para>
It took Congress almost thirty years before it resolved the question
-of whether cable companies had to pay for the content they "pirated."
+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 "piracy" of the value
+companies thus built their empire in part upon a <quote>piracy</quote> of the value
created by broadcasters' content.
</para>
<para>
-These separate stories sing a common theme. If "piracy" means
+These separate stories 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<footnote><para>
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>. "The
+<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."
+permission or compensation—has grown with the Internet.</quote>
</para></footnote>
— then <emphasis>every</emphasis> industry affected by copyright
today is the product and beneficiary of a certain kind of
</section>
</chapter>
<chapter label="5" id="piracy">
-<title>CHAPTER FIVE: "Piracy"</title>
+<title>CHAPTER FIVE: <quote>Piracy</quote></title>
<para>
There is piracy of copyrighted material. Lots of it. This piracy comes
in many forms. The most significant is commercial piracy, the
should stop it.
</para>
<para>
-But as well as copy-shop piracy, there is another kind of "taking"
+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 "piracy," however, we should understand its nature a bit more.
+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.
</para>
<section id="piracy-i">
<title>Piracy I</title>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
<para>
All across the world, but especially in Asia and Eastern Europe, there
are businesses that do nothing but take others people's copyrighted
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, "Companies Warned on Music Piracy Risk," <citetitle>Financial
+also Ben Hunt, <quote>Companies Warned on Music Piracy Risk,</quote> <citetitle>Financial
Times</citetitle>, 14 February 2003, 11.
</para></footnote>
(that works out to one in three CDs sold worldwide). The MPAA
<para>
True, these local rules have, in effect, been imposed upon these
countries. No country can be part of the world economy and choose
-<!-- PAGE BREAK 77 -->
+<beginpage pagenum="77"/>
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.
these nations live gives them some opportunities to escape the burden
of intellectual property law.<footnote><para>
<!-- f2 -->
-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.
+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.
+<indexterm><primary>agricultural patents</primary></indexterm>
<indexterm><primary>Drahos, Peter</primary></indexterm>
</para></footnote> 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.
</para>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
<para>
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
<!-- f3 -->
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. "In some instances … the impact of piracy on the
+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." Ibid., 149.
+pirating were not an option.</quote> Ibid., 149.
<indexterm><primary>Liebowitz, Stan</primary></indexterm>
</para></footnote>
</para>
thousands of pirated DVDs who certainly have enough money to pay
for the content they have taken), and it does mitigate to some degree
the harm caused by such taking. Extremists in this debate love to say,
-"You wouldn't go into Barnes & Noble and take a book off of the shelf
-without paying; why should it be any different with on-line music?"
+<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 copyright owner doesn't want to sell, she doesn't have to. There
are exceptions: important statutory licenses that apply to copyrighted
content regardless of the wish of the copyright owner. Those licenses
-give people the right to "take" copyrighted content whether or not the
+give people the right to <quote>take</quote> copyrighted content whether or not the
copyright owner wants to sell. But
<!-- PAGE BREAK 78 -->
wrong to take that content even if the wrong does no harm. If we have
a property system, and that system is properly balanced to the
technology of a time, then it is wrong to take property without the
-permission of a property owner. That is exactly what "property" means.
+permission of a property owner. That is exactly what <quote>property</quote> means.
</para>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
<para>
Finally, we could try to excuse this piracy with the argument that the
-piracy actually helps the copyright owner. When the Chinese "steal"
+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
</para>
<para>
But as the examples from the four chapters that introduced this part
-suggest, even if some piracy is plainly wrong, not all "piracy" is. Or
-at least, not all "piracy" is wrong if that term is understood in the
-way it is increasingly used today. Many kinds of "piracy" are useful
+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
-"piracy" in that sense of the term.
+<quote>piracy</quote> in that sense of the term.
</para>
<para>
This doesn't mean that there are no questions raised by the latest
<section id="piracy-ii">
<title>Piracy II</title>
<para>
-The key to the "piracy" that the law aims to quash is a use that "rob[s]
-the author of [his] profit.
"<footnote><para>
+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><footnote><para>
<!-- f4 -->
<citetitle>Bach</citetitle> v. <citetitle>Longman</citetitle>, 98 Eng. Rep. 1274 (1777).
</para></footnote>
eighteen months, there were close to 80 million registered users of the
system.<footnote><para>
<!-- f6 -->
-See Carolyn Lochhead, "Silicon Valley Dream, Hollywood Nightmare," <citetitle>San
-Francisco Chronicle</citetitle>, 24 September 2002, A1; "Rock 'n' Roll Suicide,"
-<citetitle>New Scientist</citetitle>, 6 July 2002, 42; Benny Evangelista, "Napster Names CEO,
-Secures New Financing," <citetitle>San Francisco Chronicle</citetitle>, 23 May 2003, C1;
-"Napster's Wake-Up Call," <citetitle>Economist</citetitle>, 24 June 2000, 23; John Naughton,
-"Hollywood at War with the Internet" (London) <citetitle>Times</citetitle>, 26 July 2002, 18.
+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.
</para></footnote>
Courts quickly shut Napster down, but other services emerged
to take its place. (Kazaa is currently the most popular p2p service. It
estimated that 43 million citizens used file-sharing networks to
exchange content in May 2003.<footnote><para>
<!-- f8 -->
-Amy Harmon, "Industry Offers a Carrot in Online Music Fight," <citetitle>New
+Amy Harmon, <quote>Industry Offers a Carrot in Online Music Fight,</quote> <citetitle>New
York Times</citetitle>, 6 June 2003, A1.
</para></footnote>
The vast majority of these are not kids. Whatever the actual figure, a
-massive quantity of content is being "taken" on these networks. The
+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.
</para>
sharing networks is among the most rewarding for many. Songs that were
part of your childhood but have long vanished from the marketplace
magically appear again on the network. (One friend told me that when
-she discovered Napster, she spent a solid weekend "recalling" old
+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
harmful type A sharing is. Just as Edison complained about Hollywood,
composers complained about piano rolls, recording artists complained
about radio, and broadcasters complained about cable TV, the music
-industry complains that type A sharing is a kind of "theft" that is
-"devastating" the industry.
+industry complains that type A sharing is a kind of <quote>theft</quote> that is
+<quote>devastating</quote> the industry.
</para>
<para>
While the numbers do suggest that sharing is harmful, how
harmful is harder to reckon. It has long been the recording industry's
practice to blame technology for any drop in sales. The history of
cassette recording is a good example. As a study by Cap Gemini Ernst
-& Young put it, "Rather than exploiting this new, popular
-technology, the labels fought it.
"<footnote><para>
+& Young put it, <quote>Rather than exploiting this new, popular
+technology, the labels fought it.
</quote><footnote><para>
<!-- f10 -->
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 "Home taping
-is killing music." At the time digital audio tape became a threat,
+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
<para>
Yet soon thereafter, and before Congress was given an opportunity
to enact regulation, MTV was launched, and the industry had a record
-turnaround. "In the end," Cap Gemini concludes, "the `crisis' … was
+turnaround. <quote>In the end,</quote> Cap Gemini concludes, <quote>the `crisis' … was
not the fault of the tapers—who did not [stop after MTV came into
<!-- PAGE BREAK 83 -->
being]—but had to a large extent resulted from stagnation in musical
-innovation at the major labels.
"<footnote><para>
+innovation at the major labels.
</quote><footnote><para>
<!-- f11 -->
U.S. Congress, <citetitle>Copyright and Home Copying</citetitle>, 4.
</para></footnote>
<para>
We start to answer this question by focusing on the net harm, from the
standpoint of the industry as a whole, that sharing networks cause.
-The "net harm" to the industry as a whole is the amount by which type
+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
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>: "In the past four years, unit shipments of recorded music
+#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)."
+shipments).</quote>
</para></footnote>
This confirms a trend over the past few years. The RIAA blames
Internet piracy for the trend, though there are many other causes that
could account for this drop. SoundScan, for example, reports a more
than 20 percent drop in the number of CDs released since 1999. That no
doubt accounts for some of the decrease in sales. Rising prices could
-account for at least some of the loss. "From 1999 to 2001, the average
-price of a CD rose 7.2 percent, from $13.04 to $14.19."<footnote>
+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><footnote>
<!-- f13 -->
<para>
-Jane Black, "Big Music's Broken Record," BusinessWeek online, 13
+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>.
<indexterm><primary>Black, Jane</primary></indexterm>
</para>
</footnote>
Competition from other forms of media could also account for some of
-the decline. As Jane Black of <citetitle>BusinessWeek</citetitle> notes, "The
+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.
"<footnote><para>
+$19.99.
</quote><footnote><para>
<!-- f14 -->
Ibid.
</para></footnote>
<para>
There are too many different things happening at the same time to
explain these numbers definitively, but one conclusion is unavoidable:
-The recording industry constantly asks, "What's the difference between
-downloading a song and stealing a CD?"—but their own numbers
+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 "rob[bed] the author of [his] profit"—then the industry
+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 "downloading a song and stealing a CD."
+a huge difference between <quote>downloading a song and stealing a CD.</quote>
</para>
<para>
These are the harms—alleged and perhaps exaggerated but, let's
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, "2002 Annual Survey
- Results,"
+Association of Recording Merchandisers, <quote>2002 Annual Survey
+ Results,</quote>
available at
<ulink url="http://free-culture.cc/notes/">link #20</ulink>.
</para></footnote>
the content available isn't making money from making the content
available. It is also different, of course, because in real space,
when I sell a record, I don't have it anymore, while in cyberspace,
-when someone shares my 1949 recording of Bernstein's "Two Love Songs,"
+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
<!-- PAGE BREAK 86 -->
day. His (and his publisher's) thinking was that the on-line distribution
-would be a great advertisement for the "real" book. People would read
+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
</para>
<para>
The point throughout is this: While the recording industry
-understandably says, "This is how much we've lost," we must also ask,
-"How much has society gained from p2p sharing? What are the
+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?"
+unavailable?</quote>
</para>
<para>
For unlike the piracy I described in the first section of this
-chapter, much of the "piracy" that file sharing enables is plainly
+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
found only with time.
</para>
<para>
-"But isn't the war just a war against illegal sharing? Isn't the target
-just what you call type A sharing?"
+<quote>But isn't the war just a war against illegal sharing? Isn't the target
+just what you call type A sharing?</quote>
</para>
<para>
You would think. And we should hope. But so far, it is not. The
<!-- PAGE BREAK 87 -->
infringing material, the district court told counsel for Napster 99.4
percent was not good enough. Napster had to push the infringements
-
"down to zero."<footnote><para>
+
<quote>down to zero.</quote><footnote><para>
<!-- f17 -->
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
legitimate rights of creators while protecting innovation. Sometimes
this has meant more rights for creators. Sometimes less.
</para>
+<indexterm>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
<para>
-So, as we've seen, when "mechanical reproduction" threatened the
+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 "creative property" was not being
+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.
Universal's claim against Sony was relatively simple: Sony produced a
device, Disney and Universal claimed, that enabled consumers to engage
in copyright infringement. Because the device that Sony built had a
-"record" button, the device could be used to record copyrighted movies
+<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.
decide to design its machine to make it very simple to record television
shows. It could have built the machine to block or inhibit any direct
copying from a television broadcast. Or possibly, it could have built the
-machine to copy only if there were a special "copy me" signal on the
+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
</para>
<para>
MPAA president Jack Valenti became the studios' most vocal
-champion. Valenti called VCRs "tapeworms." He warned, "When there are
+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 `tapeworms,' eating away at the very heart and essence of
the most precious asset the copyright owner has, his
-copyright.
"<footnote><para>
+copyright.
</quote><footnote><para>
<!-- f18 -->
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.).
</para></footnote>
-"One does not have to be trained in sophisticated marketing and
-creative judgment," he told Congress, "to understand the devastation
+<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.
"<footnote><para>
+and plain common sense.
</quote><footnote><para>
<!-- f19 -->
Copyright Infringements (Audio and Video Recorders), 475.
</para></footnote>
<citetitle>Universal City Studios, Inc</citetitle>. v. <citetitle>Sony Corp. of America</citetitle>, 480 F. Supp. 429,
(C.D. Cal., 1979).
</para></footnote>
-— a use the Court would later hold was not "fair." By
-"allowing VCR owners to copy freely by the means of an exemption from
+— 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 infringementwithout creating a mechanism to compensate
-copyrightowners," Valenti testified, Congress would "take from the
+copyrightowners,</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.
"<footnote><para>
+profit from its reproduction.
</quote><footnote><para>
<!-- f21 -->
Copyright Infringements (Audio and Video Recorders), 485 (testimony
of Jack Valenti).
It took eight years for this case to be resolved by the Supreme
Court. In the interim, the Ninth Circuit Court of Appeals, which
includes Hollywood in its jurisdiction—leading Judge Alex
-Kozinski, who sits on that court, refers to it as the "Hollywood
-Circuit"—held that Sony would be liable for the copyright
+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 "the Boston Strangler of the American film industry" (worse
+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.<footnote><para>
Congress was asked to respond to the Supreme Court's decision. But as
with the plea of recording artists about radio broadcasts, Congress
ignored the request. Congress was convinced that American film got
-enough, this "taking" notwithstanding. If we put these cases
+enough, this <quote>taking</quote> notwithstanding. If we put these cases
together, a pattern is clear:
</para>
<thead>
<row>
<entry>CASE</entry>
- <entry>WHOSE VALUE WAS "PIRATED"</entry>
+ <entry>WHOSE VALUE WAS <quote>PIRATED</quote></entry>
<entry>RESPONSE OF THE COURTS</entry>
<entry>RESPONSE OF CONGRESS</entry>
</row>
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, "From Edison to the Broadcast Flag,"
+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.
+<indexterm><primary>broadcast flag</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para></footnote>
In each case, throughout our history,
-that change meant that someone got a "free ride" on someone else's
+that change meant that someone got a <quote>free ride</quote> on someone else's
work.
</para>
<para>
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 "piracy."
+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 "pirates." In each case, Congress allowed some new
+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.
<!-- PAGE BREAK 91 -->
<para>
We could answer yes to each of these questions, but our tradition
has answered no. In our tradition, as the Supreme Court has stated,
-copyright "has never accorded the copyright owner complete control
-over all possible uses of his work.
"<footnote><para>
+copyright <quote>has never accorded the copyright owner complete control
+over all possible uses of his work.
</quote><footnote><para>
<!-- f25 -->
<citetitle>Sony Corp. of America</citetitle> v. <citetitle>Universal City Studios, Inc</citetitle>., 464 U.S. 417,
(1984).
We should be doing the same thing today. The technology of the
Internet is changing quickly. The way people connect to the Internet
(wires vs. wireless) is changing very quickly. No doubt the network
-should not become a tool for "stealing" from artists. But neither
+should 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
superior mode of distribution. And this p2p has done. P2p technologies
can be ideally efficient in moving content across a widely diverse
network. Left to develop, they could make the network vastly more
-efficient. Yet these "potential public benefits," as John Schwartz
-writes in <citetitle>The New York Times</citetitle>, "could be delayed in the P2P
+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><footnote><para>
<!-- f26 -->
-John Schwartz, "New Economy: The Attack on Peer-to-Peer Software
-Echoes Past Efforts," <citetitle>New York Times</citetitle>, 22 September 2003, C3.
+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.
</para></footnote>
-Yet when anyone begins to talk about "balance," the copyright warriors
-raise a different argument. "All this hand waving about balance and
-incentives," they say, "misses a fundamental point. Our content," the
-warriors insist, "is our <emphasis>property</emphasis>. Why should we
+Yet when anyone 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 `rebalance' our property rights? Do you have to
wait before calling the police when your car has been stolen? And why
should Congress deliberate at all about the merits of this theft? Do
we ask whether the car thief had a good use for the car before we
-arrest him?"
+arrest him?</quote>
</para>
<para>
-"It is <emphasis>our property</emphasis>," the warriors insist. "And
-it should be protected just as any other property is protected."
+<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>
</para>
<!-- PAGE BREAK 93 -->
</section>
</chapter>
</part>
<part id="c-property">
-<title>"PROPERTY"</title>
+<title><quote>PROPERTY</quote></title>
<partintro>
<para>
the price she can get.
</para>
<para>
-But in ordinary language, to call a copyright a "property" right is a
+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
take anything from you when I copy the way you dress—though I
might seem weird if I did it every day, and especially weird if you are a
woman. Instead, as Thomas Jefferson said (and as is especially true
-when I copy the way someone else dresses), "He who receives an idea
+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.
"<footnote><para>
+lights his taper at mine, receives light without darkening me.
</quote><footnote><para>
<!-- f1 -->
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
But how, and to what extent, and in what form—the details,
in other words—matter. To get a good sense of how this practice
of turning the intangible into property emerged, we need to place this
-
"property" in its proper context.<footnote><para>
+
<quote>property</quote> in its proper context.<footnote><para>
<!-- f2 -->
As the legal realists taught American law, all property rights are
intangible. A property right is simply a right that an individual has
against the world to do or not do certain things that may or may not
attach to a physical object. The right itself is intangible, even if
the object to which it is (metaphorically) attached is tangible. See
-Adam Mossoff, "What Is Property? Putting the Pieces Back Together,"
+Adam Mossoff, <quote>What Is Property? Putting the Pieces Back Together,</quote>
<citetitle>Arizona Law Review</citetitle> 45 (2003): 373, 429 n. 241.
</para></footnote>
</para>
<para>
My strategy in doing this will be the same as my strategy in the
preceding part. I offer four stories to help put the idea of
-"copyright material is property" in context. Where did the idea come
+<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—"copyright material is property"— will be a bit
+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.
</para>
<!-- PAGE BREAK 96 -->
<chapter label="6" id="founders">
<title>CHAPTER SIX: Founders</title>
+<indexterm><primary>Henry V</primary></indexterm>
+<indexterm><primary>Branagh, Kenneth</primary></indexterm>
<para>
William Shakespeare wrote <citetitle>Romeo and Juliet</citetitle> in 1595. The play
was first published in 1597. It was the eleventh major play that
Anglo-American culture ever since. So deeply have the works of a
sixteenth-century writer seeped into our culture that we often don't
even recognize their source. I once overheard someone commenting on
-Kenneth Branagh's adaptation of Henry V: "I liked it, but Shakespeare
-is so full of clichés."
+Kenneth Branagh's adaptation of Henry V: <quote>I liked it, but Shakespeare
+is so full of clichés.</quote>
</para>
<para>
In 1774, almost 180 years after <citetitle>Romeo and Juliet</citetitle> was written, the
-"copy-right" for the work was still thought by many to be the exclusive
+<quote>copy-right</quote> for the work was still thought by many to be the exclusive
right of a single London publisher, Jacob Tonson.<footnote><para>
<!-- f1 -->
Jacob Tonson is typically remembered for his associations with prominent
eighteenth-century literary figures, especially John Dryden, and for his
-handsome "definitive editions" of classic works. In addition to <citetitle>Romeo and
+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, "Jacob Tonson,
-Bookseller," <citetitle>American Scholar</citetitle> 61:3 (1992): 424–31.
+Jonson, John Milton, and John Dryden. See Keith Walker, <quote>Jacob Tonson,
+Bookseller,</quote> <citetitle>American Scholar</citetitle> 61:3 (1992): 424–31.
</para></footnote>
Tonson was the most prominent of a small group of publishers called
the Conger<footnote><para>
Vanderbilt University Press, 1968), 151–52.
</para></footnote>
who controlled bookselling in England during the eighteenth
-century. The Conger claimed a perpetual right to control the "copy" of
+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
<!-- PAGE BREAK 97 -->
Now, there's something puzzling about the year 1774 to anyone who
knows a little about copyright law. The better-known year in the
history of copyright is 1710, the year that the British Parliament
-adopted the first "copyright" act. Known as the Statute of Anne, the
+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.<footnote><para>
<!-- f3 -->
As Siva Vaidhyanathan nicely argues, it is erroneous to call this a
-"copyright law." See Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 40.
+<quote>copyright law.</quote> See Vaidhyanathan, <citetitle>Copyrights and Copywrongs</citetitle>, 40.
<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para></footnote> 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?
</para>
<para>
-The reason is that the English hadn't yet agreed on what a "copyright"
+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 "Stationers," had an exclusive right to print
+that the publishers, or <quote>Stationers,</quote> had an exclusive right to print
books.
<indexterm><primary>Licensing Act (1662)</primary></indexterm>
</para>
that there was no law. The Anglo-American legal tradition looks to
both the words of legislatures and the words of judges to know the
rules that are to govern how people are to behave. We call the words
-from legislatures "positive law." We call the words from judges
-"common law." The common law sets the background against which
+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.
</para>
<para>
-This question was important to the publishers, or "booksellers," as
+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
resulted in the Statute of Anne.
</para>
<para>
-The Statute of Anne granted the author or "proprietor" of a book an
+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 "expired," and the work would then be free and could be
+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.
</para>
this play, he didn't make it any harder for others to craft a play. So
why is it that the law would ever allow someone else to come along and
take Shakespeare's play without his, or his estate's, permission? What
-reason is there to allow someone else to "steal" Shakespeare's work?
+reason is there to allow someone else to <quote>steal</quote> Shakespeare's work?
</para>
<para>
The answer comes in two parts. We first need to see something special
-about the notion of "copyright" that existed at the time of the
+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
-"booksellers."
+<quote>booksellers.</quote>
</para>
<para>
First, about copyright. In the last three hundred years, we have come
-to apply the concept of "copyright" ever more broadly. But in 1710, it
+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 "copy-right" was a right
+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
the author the exclusive right to copy, the exclusive right to
distribute, the exclusive right to perform, and so on.
</para>
+<indexterm><primary>Branagh, Kenneth</primary></indexterm>
<para>
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
+term was that no one could reprint Shakespeare's work without the
+permission of the Shakespeare estate. It would not have controlled
+anything, for example, about how the work could be performed, whether
the work could be translated, or whether Kenneth Branagh would be
-allowed to make his films. The "copy-right" was only an exclusive right
-to print—no less, of course, but also no more.
+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.
</para>
+<indexterm><primary>Henry VIII, King of England</primary></indexterm>
+<indexterm><primary>Statute of Monopolies (1656)</primary></indexterm>
<para>
Even that limited right was viewed with skepticism by the British.
-They had had a long and ugly experience with "exclusive rights,"
- especially
-"exclusive rights" granted by the Crown. The English had fought
-a civil war in part about the Crown's practice of handing out
- monopolies—especially
-monopolies for works that already existed. King Henry
-VIII granted a patent to print the Bible and a monopoly to Darcy to
-print playing cards. The English Parliament began to fight back
-against this power of the Crown. In 1656, it passed the Statute of
- Monopolies,
-limiting monopolies to patents for new inventions. And by
-1710, Parliament was eager to deal with the growing monopoly in
-publishing.
-</para>
-<para>
-Thus the "copy-right," when viewed as a monopoly right, was
- naturally
-viewed as a right that should be limited. (However convincing
-the claim that "it's my property, and I should have it forever," try
-sounding convincing when uttering, "It's my monopoly, and I should
-have it forever.") The state would protect the exclusive right, but only
-so long as it benefited society. The British saw the harms from
- specialinterest
-favors; they passed a law to stop them.
+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.
+</para>
+<para>
+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.
</para>
<para>
Second, about booksellers. It wasn't just that the copyright was a
were increasingly seen as monopolists of the worst
kind—tools of the Crown's repression, selling the liberty of
England to guarantee themselves a monopoly profit. The attacks against
-these monopolists were harsh: Milton described them as "old patentees
-and monopolizers in the trade of book-selling"; they were "men who do
+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.
"<footnote><para>
+indetted.
</quote><footnote><para>
<!-- f4 -->
Philip Wittenberg, <citetitle>The Protection and Marketing of Literary
protections were not intended as replacements for the common law.
Instead, they were intended simply to supplement the common law.
Under common law, it was already wrong to take another person's
-creative "property" and use it without his permission. The Statute of
+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
This was a clever argument, and one that had the support of some of
the leading jurists of the day. It also displayed extraordinary
chutzpah. Until then, as law professor Raymond Patterson has put it,
-"The publishers … had as much concern for authors as a cattle
-rancher has for cattle.
"<footnote><para>
+<quote>The publishers … had as much concern for authors as a cattle
+rancher has for cattle.
</quote><footnote><para>
<!-- f6 -->
-Lyman Ray Patterson, "Free Speech, Copyright, and Fair Use," <citetitle>Vanderbilt
+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.
<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
<para>
Donaldson was an outsider to the London Conger. He began his
career in Edinburgh in 1750. The focus of his business was inexpensive
-reprints "of standard works whose copyright term had expired," at least
+reprints <quote>of standard works whose copyright term had expired,</quote> at least
under the Statute of Anne.<footnote><para>
<!-- f8 -->
Mark Rose, <citetitle>Authors and Owners</citetitle> (Cambridge: Harvard University Press,
1993), 92.
+<indexterm><primary>Rose, Mark</primary></indexterm>
</para></footnote>
Donaldson's publishing house prospered
<!-- PAGE BREAK 102 -->
-and became "something of a center for literary Scotsmen." "[A]mong
-them," Professor Mark Rose writes, was "the young James Boswell
+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.
"<footnote><para>
+of contemporary Scottish poems with Donaldson.
</quote><footnote><para>
<!-- f9 -->
Ibid., 93.
</para></footnote>
<para>
When the London booksellers tried to shut down Donaldson's shop in
Scotland, he responded by moving his shop to London, where he sold
-inexpensive editions "of the most popular English books, in defiance
+inexpensive editions <quote>of the most popular English books, in defiance
of the supposed common law right of Literary
-Property.
"<footnote><para>
+Property.
</quote><footnote><para>
<!-- f10 -->
Lyman Ray Patterson, <citetitle>Copyright in Historical Perspective</citetitle>, 167 (quoting
Borwell).
Anne, the works he was selling had passed out of protection.
</para>
<para>
-The London booksellers quickly brought suit to block "piracy" like
-Donaldson's. A number of actions were successful against the "pirates,"
+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>.
</para>
+<indexterm><primary>Taylor, Robert</primary></indexterm>
<para>
Millar was a bookseller who in 1729 had purchased the rights to James
-Thomson's poem "The Seasons." Millar complied with the requirements of
+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.<footnote><para>
<!-- f11 -->
-Howard B. Abrams, "The Historic Foundation of American Copyright Law:
-Exploding the Myth of Common Law Copyright," <citetitle>Wayne Law Review</citetitle> 29
+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.
</para></footnote>
</para>
history, Lord Mansfield, agreed with the booksellers. Whatever
protection the Statute of Anne gave booksellers, it did not, he held,
extinguish any common law right. The question was whether the common
-law would protect the author against subsequent "pirates."
+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
</para>
<para>
The House of Lords was an odd institution. Legal questions were
-presented to the House and voted upon first by the "law lords,"
+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.
passed into the public domain.
</para>
<para>
-"The public domain." Before the case of <citetitle>Donaldson</citetitle>
+<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
<para>
It is hard for us to imagine, but this decision by the House of Lords
fueled an extraordinarily popular and political reaction. In Scotland,
-where most of the "pirate publishers" did their work, people
+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, "No private cause has so much engrossed the attention of the
+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." "Great
+decision of which so many individuals were interested.</quote> <quote>Great
rejoicing in Edinburgh upon victory over literary property: bonfires
-and illuminations.
"<footnote><para>
+and illuminations.
</quote><footnote><para>
<!-- f13 -->
Rose, 97.
</para></footnote>
</blockquote>
<para>
<!-- PAGE BREAK 105 -->
-"Ruined" is a bit of an exaggeration. But it is not an exaggeration to
+<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
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 "fair use" or some other privilege applies.
+unless <quote>fair use</quote> or some other privilege applies.
</para>
<para>
Else called <citetitle>Simpsons</citetitle> creator Matt Groening's office to get permission.
<indexterm><primary>Gracie Films</primary></indexterm>
</para>
<para>
-Then, as Else told me, "two things happened. First we discovered
+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."
-And second, Fox "wanted ten thousand dollars as a licensing fee for us
+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."
+<citetitle>Simpsons</citetitle> which was in the corner of the shot.</quote>
</para>
<para>
Else was certain there was a mistake. He worked his way up to someone
he thought was a vice president for licensing, Rebecca Herrera. He
-explained to her, "There must be some mistake here. … We're
-asking for your educational rate on this." That was the educational
+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.
</para>
<para>
-"I wanted to make sure I had my facts straight," he told me. "Yes, you
-have your facts straight," she said. It would cost $10,000 to use the
+<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
<!-- PAGE BREAK 108 -->
-Wagner's Ring Cycle. And then, astonishingly, Herrera told Else, "And
-if you quote me, I'll turn you over to our attorneys." As an assistant
-to Herrera told Else later on, "They don't give a shit. They just want
-the money."
+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>
</para>
<para>
Else didn't have the money to buy the right to replay what was playing
says the owner gets to control.
</para>
<para>
-For example, "public performance" is a use of <citetitle>The Simpsons</citetitle> that the
+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 "My
-Favorite <citetitle>Simpsons</citetitle>," then you need to get permission from the copyright
+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.
</para>
<para>
But when lawyers hear this story about Jon Else and Fox, their first
-thought is
"fair use."<footnote><para>
+thought is
<quote>fair use.</quote><footnote><para>
<!-- f1 -->
-For an excellent argument that such use is "fair use," but that
-lawyers don't permit recognition that it is "fair use," see Richard
-A. Posner with William F. Patry, "Fair Use and Statutory Reform in the
-Wake of <citetitle>Eldred</citetitle>" (draft on file with author), University of Chicago
+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.
</para></footnote>
Else's use of just 4.5 seconds of an indirect shot of a <citetitle>Simpsons</citetitle>
</para>
<para>
<!-- PAGE BREAK 109 -->
-So I asked Else why he didn't just rely upon "fair use." Here's his reply:
+So I asked Else why he didn't just rely upon <quote>fair use.</quote> Here's his reply:
</para>
<blockquote>
<para>
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 "clearly
-fair use" in an absolute legal sense. But I couldn't rely on the
+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:
</para>
<orderedlist numeration="arabic">
<!-- 1. -->
Before our films can be broadcast, the network requires that we buy
Errors and Omissions insurance. The carriers require a detailed
-"visual cue sheet" listing the source and licensing status of each
-shot in the film. They take a dim view of "fair use," and a claim of
-"fair use" can grind the application process to a halt.
+<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.
</para></listitem>
-<listitem><para>
+<listitem>
+<indexterm><primary><citetitle>Star Wars</citetitle></primary></indexterm>
+<para>
<!-- 2. -->
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
<!-- 3. -->
I did, in fact, speak with one of your colleagues at Stanford Law
School … who confirmed that it was fair use. He also confirmed
-that Fox would "depose and litigate you to within an inch of your
-life," regardless of the merits of my claim. He made clear that it
+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.
<!-- PAGE BREAK 110 -->
<chapter label="8" id="transformers">
<title>CHAPTER EIGHT: Transformers</title>
<indexterm><primary>Allen, Paul</primary></indexterm>
-<indexterm><primary>Alben, Alex</primary></indexterm>
+<indexterm id='idxalbenalex1' class='startofrange'>
+ <primary>Alben, Alex</primary>
+</indexterm>
<para>
In 1993, Alex Alben was a lawyer working at Starwave, Inc. Starwave
was an innovative company founded by Microsoft cofounder Paul Allen to
popular, Starwave began investing in new technology for delivering
entertainment in anticipation of the power of networks.
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
+<indexterm id='idxartistsretrospective' class='startofrange'>
+ <primary>artists</primary>
+ <secondary>retrospective compilations on</secondary>
+</indexterm>
<para>
Alben had a special interest in new technology. He was intrigued by
the emerging market for CD-ROM technology—not to distribute
Eastwood, with clips from his films and interviews with figures
important to his career.
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
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,
made. Most of his career was spent at Warner Brothers, and so it was
relatively easy to get permission for that content.
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
-Then Alben and his team decided to include actual film clips. "Our
+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," Alben told me. It was here that the problem
-arose. "No one had ever really done this before," Alben explained. "No
+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."
+actor's career.</quote>
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
Alben brought the idea to Michael Slade, the CEO of Starwave.
-Slade asked, "Well, what will it take?"
+Slade asked, <quote>Well, what will it take?</quote>
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
-Alben replied, "Well, we're going to have to clear rights from
+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." Slade said, "Great! Go
-for it."<footnote>
+else that we want to use in these film clips.</quote> Slade said, <quote>Great! Go
+for it.</quote><footnote>
<para>
<!-- f1 -->
Technically, the rights that Alben had to clear were mainly those of
publicity—rights an artist has to control the commercial
-exploitation of his image. But these rights, too, burden "Rip, Mix,
-Burn" creativity, as this chapter evinces.
+exploitation of his image. But these rights, too, burden <quote>Rip, Mix,
+Burn</quote> creativity, as this chapter evinces.
<indexterm>
<primary>artists</primary>
<secondary>publicity rights on images of</secondary>
</indexterm>
+<indexterm><primary>Alben, Alex</primary></indexterm>
</para></footnote>
</para>
<para>
<para>
So we very mechanically went about looking up the film clips. We made
some artistic decisions about what film clips to include—of
-course we were going to use the "Make my day" clip from <citetitle>Dirty
+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.
started calling people.
</para>
</blockquote>
-<indexterm><primary>Alben, Alex</primary></indexterm>
+<indexterm><primary>Sutherland, Donald</primary></indexterm>
<para>
Some actors were glad to help—Donald Sutherland, for example,
followed up himself to be sure that the rights had been cleared.
Others were dumbfounded at their good fortune. Alben would ask,
-"Hey, can I pay you $600 or maybe if you were in two films, you
-know, $1,200?" And they would say, "Are you for real? Hey, I'd love
-to get $1,200." And some of course were a bit difficult (estranged
+<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.
</para>
<para>
-It was one <emphasis>year</emphasis> later—"and even then we
-weren't sure whether we were totally in the clear."
+It was one <emphasis>year</emphasis> later—<quote>and even then we
+weren't sure whether we were totally in the clear.</quote>
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
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
<blockquote>
<para>
Everyone thought it would be too hard. Everyone just threw up their
-hands and said, "Oh, my gosh, a film, it's so many copyrights, there's
+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." But we just broke it down. We just put it into its
-constituent parts and said, "Okay, there's this many actors, this many
-directors, … this many musicians," and we just went at it very
+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.
</para>
</blockquote>
And no doubt, the product itself was exceptionally good. Eastwood
loved it, and it sold very well.
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<indexterm><primary>Drucker, Peter</primary></indexterm>
<para>
But I pressed Alben about how weird it seems that it would have to
take a year's work simply to clear rights. No doubt Alben had done
-this efficiently, but as Peter Drucker has famously quipped, "There is
+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.
"<footnote><para>
+at all.
</quote><footnote><para>
<!-- f2 -->
U.S. Department of Commerce Office of Acquisition Management, <citetitle>Seven
Steps to Performance-Based Services Acquisition</citetitle>, available at
has to be made?
</para>
<para>
-For, as he acknowledged, "very few … have the time and resources,
-and the will to do this," and thus, very few such works would ever be
+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?
product hard to get off the ground. If you knew I have a hundred
minutes of film in this product and it's going to cost me X, then you
build your budget around it, and you can get investments and
-everything else that you need to produce it. But if you say, "Oh, I
+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," then it becomes difficult to put one of these things together.
+money,</quote> then it becomes difficult to put one of these things together.
</para>
</blockquote>
-<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
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?
+</para>
+<indexterm startref='idxartistsretrospective' class='endofrange'/>
+<para>
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
These rights might well have once made sense; but as circumstances
change, they make no sense at all. Or at least, a well-trained,
regulationminimizing Republican should look at the rights and ask,
-"Does this still make sense?"
+<quote>Does this still make sense?</quote>
</para>
+<indexterm startref='idxalbenalex1' class='endofrange'/>
<para>
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.
Nimmer, perhaps the leading copyright scholar and practitioner in the
nation. He had an astonished look on his face, as he peered across the
room of over 250 well-entertained judges. Taking an ominous tone, he
-began his talk with a question: "Do you know how many federal laws
-were just violated in this room?"
+began his talk with a question: <quote>Do you know how many federal laws
+were just violated in this room?</quote>
</para>
<indexterm><primary>Boies, David</primary></indexterm>
+<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
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
couldn't easily do them legally.
</para>
<para>
-We live in a "cut and paste" culture enabled by technology. Anyone
+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.
</para>
+<indexterm><primary>Camp Chaos</primary></indexterm>
<para>
But presentations are just a tiny beginning. Using the Internet and
<!-- PAGE BREAK 117 -->
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.
-<indexterm><primary>Camp Chaos</primary></indexterm>
</para>
<para>
All of these creations are technically illegal. Even if the creators
-wanted to be "legal," the cost of complying with the law is impossibly
+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.
To some, these stories suggest a solution: Let's alter the mix of
rights so that people are free to build upon our culture. Free to add
or mix as they see fit. We could even make this change without
-necessarily requiring that the "free" use be free as in "free beer."
+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 "the royalty owed the copyright
+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." Under this rule, the copyright owner could benefit
+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.
Myers, the comic genius of <citetitle>Saturday Night Live</citetitle> and
<!-- PAGE BREAK 118 -->
Austin Powers. According to the announcement, Myers and Dream-Works
-would work together to form a "unique filmmaking pact." Under the
-agreement, DreamWorks "will acquire the rights to existing motion
+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."
+entertainment.</quote>
</para>
<para>
-The announcement called this "film sampling." As Myers explained,
-"Film Sampling is an exciting way to put an original spin on existing
+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." Steven Spielberg is
-quoted as saying, "If anyone can create a way to bring old films to
-new audiences, it is Mike."
+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>
</para>
<para>
Spielberg is right. Film sampling by Myers will be brilliant. But if
</para>
<para>
This privilege becomes reserved for two sorts of reasons. The first
-continues the story of the last chapter: the vagueness of "fair use."
-Much of "sampling" should be considered "fair use." But few would
+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.
</chapter>
<chapter label="9" id="collectors">
<title>CHAPTER NINE: Collectors</title>
+<indexterm id='idxarchivesdigital1' class='startofrange'>
+ <primary>archives, digital</primary>
+</indexterm>
<para>
-In April 1996, millions of "bots"—computer codes designed to
-"spider," or automatically search the Internet and copy content—began
+In April 1996, 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,
By October 2001, the bots had collected more than five years of
copies. And at a small announcement in Berkeley, California, the
archive that these copies created, the Internet Archive, was opened to
-the world. Using a technology called "the Way Back Machine," you could
+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.
</para>
+<indexterm id='idxorwellgeorge' class='startofrange'>
+ <primary>Orwell, George</primary>
+</indexterm>
<para>
This is the thing about the Internet that Orwell would have
appreciated. In the dystopia described in <citetitle>1984</citetitle>, old newspapers were
but the content could easily be different. The Internet is Orwell's
library—constantly updated, without any reliable memory.
</para>
+<indexterm startref='idxorwellgeorge' class='endofrange'/>
<para>
Until the Way Back Machine, at least. With the Way Back Machine, and
the Internet Archive underlying it, you can see what the Internet
<!-- f1 -->
The temptations remain, however. Brewster Kahle reports that the White
House changes its own press releases without notice. A May 13, 2003,
-press release stated, "Combat Operations in Iraq Have Ended." That was
-later changed, without notice, to "Major Combat Operations in Iraq
-Have Ended." E-mail from Brewster Kahle, 1 December 2003.
+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.
</para></footnote>
</para>
<para>
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.
</para>
+<indexterm><primary>Vanderbilt University</primary></indexterm>
<para>
The Way Back Machine is the largest archive of human knowledge in
-human history. At the end of 2002, it held "two hundred and thirty
-terabytes of material"—and was "ten times larger than the
-Library of Congress." And this was just the first of the archives that
+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
that culture is available for anyone to see today. Three hours of news
are recorded each evening by Vanderbilt University—thanks to a
specific exemption in the copyright law. That content is indexed, and
-is available to scholars for a very low fee. "But other than that,
-[television] is almost unavailable," Kahle told me. "If you were
+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?" As Kahle put it,
+just a graduate student?</quote> As Kahle put it,
</para>
<blockquote>
+<indexterm><primary>Quayle, Dan</primary></indexterm>
<para>
Do you remember when Dan Quayle was interacting with Murphy Brown?
Remember that back and forth surreal experience of a politician
of Congress made an exception for film. Film could be copyrighted so
long as such deposits were made. But the filmmaker was then allowed to
borrow back the deposits—for an unlimited time at no cost. In
-1915 alone, there were more than 5,475 films deposited and "borrowed
-back." Thus, when the copyrights to films expire, there is no copy
+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.<footnote><para>
<!-- f2 -->
-Doug Herrick, "Toward a National Film Collection: Motion Pictures at
-the Library of Congress," <citetitle>Film Library Quarterly</citetitle> 13 nos. 2–3
+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.
<para>
The same is generally true about television. Television broadcasts
were originally not copyrighted—there was no way to capture the
-broadcasts, so there was no fear of "theft." But as technology enabled
+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
-"copyrighted." But those copies were simply kept by the
+<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.
Anyone could see how news reports from around the world covered the
events of that day.
</para>
+<indexterm><primary>Movie Archive</primary></indexterm>
+<indexterm>
+ <primary>archive.org</primary>
+ <seealso>Internet Archive</seealso>
+</indexterm>
<para>
Kahle had the same idea with film. Working with Rick Prelinger, whose
-archive of film includes close to 45,000 "ephemeral films" (meaning
+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
material they wanted to use. Some downloaded that material and made
films on their own. Others purchased copies to enable other films to
be made. Either way, the archive enabled access to this important
-part of our culture. Want to see a copy of the "Duck and Cover" film
+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.
-<indexterm><primary>Movie Archive</primary></indexterm>
</para>
<para>
Here again, Kahle is providing access to a part of our culture that we
</para>
<para>
For here is an idea that we should more clearly recognize. Every bit
-of creative property goes through different "lives." In its first
+of creative property goes through different <quote>lives.</quote> In its first
life, if the
<!-- PAGE BREAK 124 -->
The same has always been true about books. A book goes out of print
very quickly (the average today is after about a year<footnote><para>
<!-- f3 -->
-Dave Barns, "Fledgling Career in Antique Books: Woodstock Landlord,
-Bar Owner Starts a New Chapter by Adopting Business," <citetitle>Chicago Tribune</citetitle>,
+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,
-"The First Sale Doctrine in the Era of Digital Networks," <citetitle>Boston
+<quote>The First Sale Doctrine in the Era of Digital Networks,</quote> <citetitle>Boston
College Law Review</citetitle> 44 (2003): 593 n. 51.
</para></footnote>). After
it is out of print, it can be sold in used book stores without the
Kahle describes,
</para>
<blockquote>
+<indexterm>
+ <primary>books</primary>
+ <secondary>total number of</secondary>
+</indexterm>
<para>
It looks like there's about two to three million recordings of music.
Ever. There are about a hundred thousand theatrical releases of
<para>
Technologists have thus removed the economic costs of building such an
archive. But lawyers' costs remain. For as much as we might like to
-call these "archives," as warm as the idea of a "library" might seem,
-the "content" that is collected in these digital spaces is also
-someone's "property." And the law of property restricts the freedoms
+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.
</para>
+<indexterm startref='idxarchivesdigital1' class='endofrange'/>
<!-- PAGE BREAK 127 -->
</chapter>
<chapter label="10" id="property-i">
-<title>CHAPTER TEN: "Property"</title>
+<title>CHAPTER TEN: <quote>Property</quote></title>
<para>
Jack Valenti has been the president of the Motion Picture Association
of America since 1966. He first came to Washington, D.C., with Lyndon
speech-regulating harm. But there is an aspect to the organization's
mission that is both the most radical and the most important. This is
the organization's effort, epitomized in Valenti's every act, to
-redefine the meaning of "creative property."
+redefine the meaning of <quote>creative property.</quote>
</para>
<para>
In 1982, Valenti's testimony to Congress captured the strategy
<para>
The strategy of this rhetoric, like the strategy of most of Valenti's
rhetoric, is brilliant and simple and brilliant because simple. The
-"central theme" to which "reasonable men and women" will return is
+<quote>central theme</quote> to which <quote>reasonable men and women</quote> will return is
this:
<!-- PAGE BREAK 129 -->
-"Creative property owners must be accorded the same rights and
-protections resident in all other property owners in the nation."
+<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.
</para>
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 "creative property." His views
+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.
</para>
<para>
-While "creative property" is certainly "property" in a nerdy and
+While <quote>creative property</quote> is certainly <quote>property</quote> in a nerdy and
precise sense that lawyers are trained to understand,<footnote><para>
<!-- f2 -->
-Lawyers speak of "property" not as an absolute thing, but as a bundle
+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 "property right" to my car gives me the right to
+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 "property" to
-"lawyer talk," see Bruce Ackerman, <citetitle>Private Property and the
+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.
</para></footnote> it has never been the case, nor should it be, that
-"creative property owners" have been "accorded the same rights and
-protection resident in all other property owners." Indeed, if creative
+<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.
Constitution itself.
</para>
<para>
-The framers of our Constitution loved "property." Indeed, so strongly
+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 "Takings
-Clause," to pay you "just compensation" for that taking. The
+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.
</para>
<para>
Yet the very same Constitution speaks very differently about what
-Valenti calls "creative property." In the clause granting Congress the
-power to create "creative property," the Constitution
-<emphasis>requires</emphasis> that after a "limited time," Congress
-take back the rights that it has granted and set the "creative
-property" free to the public domain. Yet when Congress does this, when
-the expiration of a copyright term "takes" your copyright and turns it
+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 "just compensation" for this "taking." Instead, the same
+pay <quote>just compensation</quote> for this <quote>taking.</quote> Instead, the same
Constitution that requires compensation for your land
<!-- PAGE BREAK 131 -->
-requires that you lose your "creative property" right without any
+requires that you lose your <quote>creative property</quote> right without any
compensation at all.
</para>
<para>
</para>
<para>
To answer this question, we need to get some perspective on the
-history of these "creative property" rights, and the control that they
+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>
an ex ante rule. It is imposed by the state.
<indexterm><primary>Madonna</primary></indexterm>
</para>
+<indexterm><primary>norms, regulatory influence of</primary></indexterm>
<para>
Norms are a different kind of constraint. They, too, punish an
individual for violating a rule. But the punishment of a norm is
state. The mark of the difference is not the severity of the rule, but
the source of the enforcement.
</para>
+<indexterm><primary>market constraints</primary></indexterm>
<para>
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
contract law, the market imposes a simultaneous constraint upon how an
individual or group might behave.
</para>
+<indexterm><primary>architecture, constraint effected through</primary></indexterm>
<para>
Finally, and for the moment, perhaps, most mysteriously,
-"architecture"—the physical world as one finds it—is a
+<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,
punishments. Instead, also as with the market, architecture effects
its constraint through simultaneous conditions. These conditions are
imposed not by courts enforcing contracts, or by police punishing
-theft, but by nature, by "architecture." If a 500-pound boulder
+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.
<indexterm id="idxdrivespeed" class='startofrange'>
<primary>driving speed, constraints on</primary>
</indexterm>
+<indexterm><primary>architecture, constraint effected through</primary></indexterm>
+<indexterm><primary>market constraints</primary></indexterm>
+<indexterm><primary>norms, regulatory influence of</primary></indexterm>
<para>
-So, for example, consider the "freedom" to drive a car at a high
+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
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, "The New Chicago School," <citetitle>Journal of Legal Studies</citetitle>,
+Lawrence Lessig, <quote>The New Chicago School,</quote> <citetitle>Journal of Legal Studies</citetitle>,
June 1998.
</para></footnote>
The law, in other words, sometimes operates to increase or decrease
<title>Law has a special role in affecting the three.</title>
<graphic fileref="images/1361.png"></graphic>
</figure>
+<indexterm><primary>architecture, constraint effected through</primary></indexterm>
<para>
These constraints can thus change, and they can be changed. To
understand the effective protection of liberty or protection of
another.<footnote>
<para>
<!-- f4 -->
-Some people object to this way of talking about "liberty." They object
+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
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, "The Right to Work," in Malcom Rutherford and Warren
-J. Samuels, eds., <citetitle>John R. Commons: Selected Essays</citetitle> (London:
+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.
+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.
+<indexterm><primary>Americans with Disabilities Act (1990)</primary></indexterm>
<indexterm><primary>Commons, John R.</primary></indexterm>
+<indexterm><primary>architecture, constraint effected through</primary></indexterm>
+<indexterm><primary>market constraints</primary></indexterm>
</para></footnote>
</para>
<section id="hollywood">
<title>Copyright's regulation before the Internet.</title>
<graphic fileref="images/1331.png"></graphic>
</figure>
+<indexterm><primary>market constraints</primary></indexterm>
+<indexterm><primary>norms, regulatory influence of</primary></indexterm>
<para>
<!-- PAGE BREAK 136 -->
There is balance between law, norms, market, and architecture. The law
</figure>
<para>
Neither this analysis nor the conclusions that follow are new to the
-warriors. Indeed, in a "White Paper" prepared by the Commerce
+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
develop code to protect copyrighted material, and (4) educators should
educate kids to better protect copyright.
</para>
+<indexterm><primary>steel industry</primary></indexterm>
<para>
This mixed strategy is just what copyright needed—if it was to
preserve the particular balance that existed before the change induced
technological innovation. And I would be the last person to argue that
the changing technology of the Internet has not had a profound effect
on the content industry's way of doing business, or as John Seely
-Brown describes it, its "architecture of revenue."
+Brown describes it, its <quote>architecture of revenue.</quote>
</para>
+<indexterm><primary>railroad industry</primary></indexterm>
+<indexterm><primary>advertising</primary></indexterm>
<para>
But just because a particular interest asks for government support, it
doesn't follow that support should be granted. And just because
percent of their traditional film market to the emerging technologies
of digital cameras.<footnote><para>
<!-- f5 -->
-See Geoffrey Smith, "Film vs. Digital: Can Kodak Build a Bridge?"
+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, "Can Kodak Make Up for Lost Moments?" Forbes.com, 6
+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>.
</para></footnote>
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 "stickiness" of television advertising (if a boring
+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?)
</para>
+<indexterm><primary>Brezhnev, Leonid</primary></indexterm>
+<indexterm><primary>Gates, Bill</primary></indexterm>
<para>
The obvious answer to these obviously rhetorical questions is no.
In a free society, with a free market, supported by free enterprise and
business against others. Its role is not to pick winners and protect
them against loss. If the government did this generally, then we would
never have any progress. As Microsoft chairman Bill Gates wrote in
-1991, in a memo criticizing software patents, "established companies
-have an interest in excluding future competitors.
"<footnote><para>
+1991, in a memo criticizing software patents, <quote>established companies
+have an interest in excluding future competitors.
</quote><footnote><para>
<!-- f6 -->
Fred Warshofsky, <citetitle>The Patent Wars</citetitle> (New York: Wiley, 1994), 170–71.
</para></footnote>
competitors with new ideas will not succeed. It is a world of stasis and
increasingly concentrated stagnation. It is the Soviet Union under
Brezhnev.
-<indexterm><primary>Gates, Bill</primary></indexterm>
</para>
<para>
Thus, while it is understandable for industries threatened with new
should be especially wary of the request. It is always a bad deal for
the government to get into the business of regulating speech
markets. The risks and dangers of that game are precisely why our
-framers created the First Amendment to our Constitution: "Congress
-shall make no law … abridging the freedom of speech." So when
-Congress is being asked to pass laws that would "abridge" the freedom
+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.
</para>
My argument just now, however, has nothing to do with whether
<!-- PAGE BREAK 140 -->
the changes that are being pushed by the copyright warriors are
-"justified." My argument is about their effect. For before we get to
+<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.
important and valuable and probably saved lives, possibly millions.
</para>
<indexterm><primary>Carson, Rachel</primary></indexterm>
+<indexterm><primary>Silent Sprint (Carson)</primary></indexterm>
<para>
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.
-<indexterm><primary>Carson, Rachel</primary></indexterm>
-<indexterm><primary>Silent Sprint (Carson)</primary></indexterm>
</para>
<para>
No one set out to destroy the environment. Paul Müller certainly did
when considering the other, more environmentally friendly ways to
solve the problems that DDT was meant to solve.
</para>
+<indexterm><primary>Boyle, James</primary></indexterm>
<para>
It is to this image precisely that Duke University law professor James
-Boyle appeals when he argues that we need an "environmentalism" for
+Boyle appeals when he argues that we need an <quote>environmentalism</quote> for
culture.<footnote><para>
<!-- f7 -->
-See, for example, James Boyle, "A Politics of Intellectual Property:
-Environmentalism for the Net?" <citetitle>Duke Law Journal</citetitle> 47 (1997): 87.
+See, for example, James Boyle, <quote>A Politics of Intellectual Property:
+Environmentalism for the Net?</quote> <citetitle>Duke Law Journal</citetitle> 47 (1997): 87.
</para></footnote>
His point, and the point I want to develop in the balance of this
chapter, is not that the aims of copyright are flawed. Or that authors
should not be paid for their work. Or that music should be given away
-"for free." The point is that some of the ways in which we might
+<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
<!-- PAGE BREAK 141 -->
<title>Beginnings</title>
<para>
America copied English copyright law. Actually, we copied and improved
-English copyright law. Our Constitution makes the purpose of "creative
-property" rights clear; its express limitations reinforce the English
+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.
</para>
<para>
-The power to establish "creative property" rights is granted to
+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:
</para>
the exclusive Right to their respective Writings and Discoveries.
<!-- PAGE BREAK 142 -->
-We can call this the "Progress Clause," for notice what this clause
+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
-"creative property rights." It says that Congress has the power
+<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.
disproportionate control over publishing. We can assume the framers
followed the English for a similar purpose. Indeed, unlike the
English, the framers reinforced that objective, by requiring that
-copyrights extend "to Authors" only.
+copyrights extend <quote>to Authors</quote> only.
</para>
<para>
The design of the Progress Clause reflects something about the
concentrations of power.
</para>
<para>
-I doubt the framers would recognize the regulation we call "copyright"
+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
-"copyright" in context: We need to see how it has changed in the 210
+<quote>copyright</quote> in context: We need to see how it has changed in the 210
years since they first struck its design.
</para>
<para>
We will end here:
</para>
<figure id="fig-1442">
-<title>"Copyright" today.</title>
+<title><quote>Copyright</quote> today.</title>
<graphic fileref="images/1442.png"></graphic>
</figure>
<para>
<!-- f8 -->
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: "extinguish[ing], by plain implication of `the supreme
+485–86: <quote>extinguish[ing], by plain implication of `the supreme
Law of the Land,' <emphasis>the perpetual rights which authors had, or
-were supposed by some to have, under the Common Law</emphasis>"
+were supposed by some to have, under the Common Law</emphasis></quote>
(emphasis added).
<indexterm><primary>Crosskey, William W.</primary></indexterm>
</para></footnote>
Few copyright holders ever chose to renew their copyrights. For
instance, of the 25,006 copyrights registered in 1883, only 894 were
renewed in 1910. For a year-by-year analysis of copyright renewal
-rates, see Barbara A. Ringer, "Study No. 31: Renewal of Copyright,"
+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, "Indefinitely Renewable Copyright,"
+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. </para></footnote>
</para>
<para>
The United States abandoned this sensible system in 1976. For
all works created after 1978, there was only one copyright term—the
-maximum term. For "natural" authors, that term was life plus fifty
+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
domain. And indeed, after these changes, it is unclear whether it is
even possible to put works into the public domain. The public domain
is orphaned by these changes in copyright law. Despite the requirement
-that terms be "limited," we have no evidence that anything will limit
+that terms be <quote>limited,</quote> we have no evidence that anything will limit
them.
</para>
<para>
These statistics are understated. Between the years 1910 and 1962 (the
first year the renewal term was extended), the average term was never
more than thirty-two years, and averaged thirty years. See Landes and
-Posner, "Indefinitely Renewable Copyright," loc. cit.
+Posner, <quote>Indefinitely Renewable Copyright,</quote> loc. cit.
</para></footnote>
</para>
<!-- PAGE BREAK 147 -->
<section id="lawscope">
<title>Law: Scope</title>
<para>
-The "scope" of a copyright is the range of rights granted by the law.
+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.
</para>
<para>
-In 1790, that scope was very narrow. Copyright covered only "maps,
-charts, and books." That means it didn't cover, for example, music or
+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 "publish" copyrighted works. That
+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 "derivative works." It would not,
+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).
right covers practically any creative work that is reduced to a
tangible form. It covers music as well as architecture, drama as well
as computer programs. It gives the copyright owner of that creative
-work not only the exclusive right to "publish" the work, but also the
-exclusive right of control over any "copies" of that work. And most
+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
-"derivative work" that might grow out of the original work. In this
+<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.
original author.
</para>
<para>
-All of these "formalities" were abolished in the American system when
+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
so as to prevent that kind of unfair competition. In 1790, there were
174 publishers in the United States.<footnote><para>
<!-- f13 -->
-See Thomas Bender and David Sampliner, "Poets, Pirates, and the
-Creation of American Literature," 29 <citetitle>New York University Journal of
+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).
That much is the obvious part. Any system of copyright would
control
competing publishing. But there's a second part to the copyright of
-today that is not at all obvious. This is the protection of "derivative
-rights." If you write a book, no one can make a movie out of your
+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
all—they believe that our law, as the framers penned it, should
not protect derivative rights at all.<footnote><para>
<!-- f14 -->
-Jonathan Zittrain, "The Copyright Cage," <citetitle>Legal
+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>.
<indexterm><primary>Zittrain, Jonathan</primary></indexterm>
<!-- f15 -->
Professor Rubenfeld has presented a powerful constitutional argument
about the difference that copyright law should draw (from the
-perspective of the First Amendment) between mere "copies" and
-derivative works. See Jed Rubenfeld, "The Freedom of Imagination:
-Copyright's Constitutionality," <citetitle>Yale Law
+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).
+<indexterm><primary>Rubenfeld, Jeb</primary></indexterm>
</para></footnote>
These two different uses of my creative work are treated the same.
</para>
This again may seem right to you. If I wrote a book, then why should
you be able to write a movie that takes my story and makes money from
it without paying me or crediting me? Or if Disney creates a creature
-called "Mickey Mouse," why should you be able to make Mickey Mouse
+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?
</para>
copies, and the core of the regulation of copyright law is copies.<footnote><para>
<!-- f16 -->
This is a simplification of the law, but not much of one. The law
-certainly regulates more than "copies"—a public performance of a
+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 "copy"; 17
+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 "copies;" 17 <citetitle>United States Code</citetitle>, section
+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.
</para></footnote>
</para>
<para>
<!-- PAGE BREAK 151 -->
-"Copies." That certainly sounds like the obvious thing for
+<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 "creative
-property" deserves the "same rights" as all other property, it is the
+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
</para>
<para>
Finally, there is a tiny sliver of otherwise regulated copying uses
-that remain unregulated because the law considers these "fair uses."
+that remain unregulated because the law considers these <quote>fair uses.</quote>
</para>
<!-- PAGE BREAK 153 -->
<figure id="fig-1541">
that is quite negative, without my permission, even though that
quoting makes a copy. That copy would ordinarily give the copyright
owner the exclusive right to say whether the copy is allowed or not,
-but the law denies the owner any exclusive right over such "fair uses"
+but the law denies the owner any exclusive right over such <quote>fair uses</quote>
for public policy (and possibly First Amendment) reasons.
</para>
<figure id="fig-1542">
-<title>Unregulated copying considered "fair uses."</title>
+<title>Unregulated copying considered <quote>fair uses.</quote></title>
<graphic fileref="images/1542.png"></graphic>
</figure>
<para> </para>
<!-- PAGE BREAK 154 -->
In real space, then, the possible uses of a book are divided into three
sorts: (1) unregulated uses, (2) regulated uses, and (3) regulated uses that
-are nonetheless deemed "fair" regardless of the copyright owner's views.
+are nonetheless deemed <quote>fair</quote> regardless of the copyright owner's views.
</para>
<para>
Enter the Internet—a distributed, digital network where every use
of a copyrighted work produces a copy.<footnote><para>
<!-- f18 -->
-I don't mean "nature" in the sense that it couldn't be different, but
+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
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. "Copy and paste" and "cut and paste" become
+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
Third, this shift from category 1 to category 2 puts an extraordinary
<!-- PAGE BREAK 156 -->
-burden on category 3 ("fair use") that fair use never before had to
+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
presumptively regulated, then the protections of fair use are not
enough.
</para>
+<indexterm id='idxadvertising2' class='startofrange'>
+ <primary>advertising</primary>
+</indexterm>
<para>
The case of Video Pipeline is a good example. Video Pipeline was
-in the business of making "trailer" advertisements for movies available
+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.
<para>
The company did this for about fifteen years. Then, in 1997, it began
to think about the Internet as another way to distribute these
-previews. The idea was to expand their "selling by sampling"
+previews. The idea was to expand their <quote>selling by sampling</quote>
technique by giving on-line stores the same ability to enable
-"browsing." Just as in a bookstore you can read a few pages of a book
+<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.
</para>
films; he had customers who depended upon his delivering this
content. Disney would agree to talk only if Video Pipeline stopped the
distribution immediately. Video Pipeline thought it was within their
-"fair use" rights to distribute the clips as they had. So they filed a
+<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.
</para>
<para>
Disney countersued—for $100 million in damages. Those damages
-were predicated upon a claim that Video Pipeline had "willfully
-infringed" on Disney's copyright. When a court makes a finding of
+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
not allowed to show clips of the films as a way of selling them without
Disney's permission.
</para>
+<indexterm startref='idxadvertising2' class='endofrange'/>
<para>
Now, you might think this is a close case, and I think the courts
would consider it a close case. My point here is to map the change
that gives Disney this power. Before the Internet, Disney couldn't
really control how people got access to their content. Once a video
-was in the marketplace, the "first-sale doctrine" would free the
+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
control. The technology expands the scope of effective control,
because the technology builds a copy into every transaction.
</para>
+<indexterm><primary>Barnes & Noble</primary></indexterm>
<para>
<!-- PAGE BREAK 158 -->
No doubt, a potential is not yet an abuse, and so the potential for
serious legal consequences if they went forward with their
plan.<footnote><para>
<!-- f19 -->
-See David Lange, "Recognizing the Public Domain," <citetitle>Law and
+See David Lange, <quote>Recognizing the Public Domain,</quote> <citetitle>Law and
Contemporary Problems</citetitle> 44 (1981): 172–73.
</para></footnote>
</para>
<para>
This led the Marx Brothers to respond in kind. They warned
-Warner Brothers that the Marx Brothers "were brothers long before
-you were.
"<footnote><para>
+Warner Brothers that the Marx Brothers <quote>were brothers long before
+you were.
</quote><footnote><para>
<!-- f20 -->
Ibid. See also Vaidhyanathan, <citetitle>Copyrights and
Copywrongs</citetitle>, 1–3.
<indexterm><primary><citetitle>Politics</citetitle>, (Aristotle)</primary></indexterm>
</para>
<figure id="fig-1621">
-<title>E-book of Aristotle;s "Politics"</title>
+<title>E-book of Aristotle;s <quote>Politics</quote></title>
<graphic fileref="images/1621.png"></graphic>
</figure>
<para>
the book.
</para>
<figure id="fig-1622">
-<title>List of the permissions for Aristotle;s "Politics".</title>
+<title>List of the permissions for Aristotle;s <quote>Politics</quote>.</title>
<graphic fileref="images/1622.png"></graphic>
</figure>
<para>
</para>
<!-- PAGE BREAK 162 -->
<figure id="fig-1631">
-<title>List of the permissions for "The Future of Ideas".</title>
+<title>List of the permissions for <quote>The Future of Ideas</quote>.</title>
<graphic fileref="images/1631.png"></graphic>
</figure>
<para>
</para>
<para>
Now, the Adobe eBook Reader calls these controls
-"permissions"— as if the publisher has the power to control how
+<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
</para>
<para>
The control comes instead from the code—from the technology
-within which the e-book "lives." Though the e-book says that these are
-permissions, they are not the sort of "permissions" that most of us
-deal with. When a teenager gets "permission" to stay out till
+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
<!-- PAGE BREAK 163 -->
These are <emphasis>controls</emphasis>, not permissions. Imagine a
world where the Marx Brothers sold word processing software that, when
-you tried to type "Warner Brothers," erased "Brothers" from the
+you tried to type <quote>Warner Brothers,</quote> erased <quote>Brothers</quote> from the
sentence.
<indexterm><primary>Marx Brothers</primary></indexterm>
</para>
<indexterm><primary>Alice's Adventures in Wonderland (Carroll)</primary></indexterm>
</para>
<figure id="fig-1641">
-<title>List of the permissions for "Alice's Adventures in
-Wonderland".</title>
+<title>List of the permissions for <quote>Alice's Adventures in
+Wonderland</quote>.</title>
<graphic fileref="images/1641.png"></graphic>
</figure>
+<beginpage pagenum="164"/>
<para>
-<!-- PAGE BREAK 164 -->
Here was a public domain children's book that you were not allowed to
copy, not allowed to lend, not allowed to give, and, as the
-"permissions" indicated, not allowed to "read aloud"!
+<quote>permissions</quote> indicated, not allowed to <quote>read aloud</quote>!
</para>
<para>
The public relations nightmare attached to that final permission.
To see the point in a particularly absurd context, consider a favorite
story of mine that makes the same point.
</para>
-<indexterm id="idxaibo" class='startofrange'>
+<indexterm id="idxaibo1" class='startofrange'>
<primary>Aibo robotic dog</primary>
</indexterm>
+<indexterm id="idxroboticdog1" class='startofrange'>
+ <primary>robotic dog</primary>
+</indexterm>
+<indexterm id="idxsonyaibo1" class='startofrange'>
+ <primary>Sony</primary>
+ <secondary>Aibo robotic dog produced by</secondary>
+</indexterm>
<para>
-Consider the robotic dog made by Sony named "Aibo." The Aibo
+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).
</para>
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
-<!-- PAGE BREAK 165 -->
+<beginpage pagenum="165"/>
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.
</para>
<para>
-"Teach" here has a special meaning. Aibos are just cute computers.
+<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 "dog" to make it do new tricks (thus, aibohack.com).
+their computer <quote>dog</quote> to make it do new tricks (thus, aibohack.com).
</para>
<para>
-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 "drive," the printer. If you discovered that, you'd later be
-happy to discover a hack on the Net by someone who has written a
-driver to enable the computer to drive the printer you just bought.
+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.
</para>
<para>
Some hacks are easy. Some are unbelievably hard. Hackers as a
bit of tinkering that turned the dog into a more talented creature
than Sony had built.
</para>
-<indexterm startref="idxaibo" class='endofrange'/>
+<indexterm startref="idxsonyaibo1" class='endofrange'/>
+<indexterm startref="idxroboticdog1" class='endofrange'/>
+<indexterm startref="idxaibo1" class='endofrange'/>
<para>
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,
<para>
But Felten's bravery was really tested in April 2001.<footnote><para>
<!-- f22 -->
-See Pamela Samuelson, "Anticircumvention Rules: Threat to Science,"
-<citetitle>Science</citetitle> 293 (2001): 2028; Brendan I. Koerner, "Play Dead: Sony Muzzles
-the Techies Who Teach a Robot Dog New Tricks," <citetitle>American Prospect</citetitle>,
-January 2002; "Court Dismisses Computer Scientists' Challenge to
-DMCA," <citetitle>Intellectual Property Litigation Reporter</citetitle>, 11 December 2001; Bill
-Holland, "Copyright Act Raising Free-Speech Concerns," <citetitle>Billboard</citetitle>,
-May 2001; Janelle Brown, "Is the RIAA Running Scared?" Salon.com,
-April 2001; Electronic Frontier Foundation, "Frequently Asked
-Questions about <citetitle>Felten and USENIX</citetitle> v. <citetitle>RIAA</citetitle> Legal Case," available at
+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>.
<indexterm><primary>Electronic Frontier Foundation</primary></indexterm>
</para></footnote>
owners to exercise much better control over their content than the
Internet, as it originally stood, granted them. Using encryption, SDMI
hoped to develop a standard that would allow the content owner to say
-"this music cannot be copied," and have a computer respect that
-command. The technology was to be part of a "trusted system" of
+<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.
</para>
weakness in the SDMI system, and why SDMI would not, as presently
constituted, succeed.
</para>
+<indexterm id="idxaibo2" class='startofrange'>
+ <primary>Aibo robotic dog</primary>
+</indexterm>
+<indexterm id="idxroboticdog2" class='startofrange'>
+ <primary>robotic dog</primary>
+</indexterm>
+<indexterm id="idxsonyaibo2" class='startofrange'>
+ <primary>Sony</primary>
+ <secondary>Aibo robotic dog produced by</secondary>
+</indexterm>
<para>
What links these two, aibopet.com and Felten, is the letters they
then received. Aibopet.com received a letter from Sony about the
anti-circumvention provisions of the Digital Millennium Copyright Act.
</para>
</blockquote>
+<indexterm startref="idxsonyaibo2" class='endofrange'/>
+<indexterm startref="idxroboticdog2" class='endofrange'/>
+<indexterm startref="idxaibo2" class='endofrange'/>
<para>
And though an academic paper describing the weakness in a system
of encryption should also be perfectly legal, Felten received a letter
<!-- PAGE BREAK 168 -->
Public Challenge would be outside the scope of activities permitted by
the Agreement and could subject you and your research team to actions
-under the Digital Millennium Copyright Act ("DMCA").
+under the Digital Millennium Copyright Act (<quote>DMCA</quote>).
</para>
</blockquote>
<para>
of the copyrighted material made possible by that circumvention would
have been a copyright violation.
</para>
+<indexterm><primary>Aibo robotic dog</primary></indexterm>
+<indexterm><primary>robotic dog</primary></indexterm>
+<indexterm>
+ <primary>Sony</primary>
+ <secondary>Aibo robotic dog produced by</secondary>
+</indexterm>
<para>
Aibopet.com and Felten make the point. The Aibo hack circumvented a
copyright protection system for the purpose of enabling the dog to
Thus, even though he was not himself infringing anyone's copyright,
his academic paper was enabling others to infringe others' copyright.
</para>
+<indexterm><primary>Rogers, Fred</primary></indexterm>
<para>
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 "<citetitle>Mr. Rogers</citetitle>,"
+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.
<indexterm><primary>Conrad, Paul</primary></indexterm>
<blockquote>
<para>
Some public stations, as well as commercial stations, program the
-"Neighborhood" at hours when some children cannot use it. I think that
+<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
-"Neighborhood" off-the-air, and I'm speaking for the "Neighborhood"
+<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 "You are an important person just the way
-you are. You can make healthy decisions." Maybe I'm going on too long,
+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.<footnote><para>
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.
+<indexterm><primary>Rogers, Fred</primary></indexterm>
</para></footnote>
</para>
</blockquote>
good, but permits guns, despite the obvious and tragic harm they do.
<indexterm><primary>Conrad, Paul</primary></indexterm>
</para>
+<indexterm><primary>Aibo robotic dog</primary></indexterm>
+<indexterm><primary>robotic dog</primary></indexterm>
+<indexterm>
+ <primary>Sony</primary>
+ <secondary>Aibo robotic dog produced by</secondary>
+</indexterm>
<para>
The Aibo and RIAA examples demonstrate how copyright owners are
changing the balance that copyright law grants. Using code, copyright
Kirk. The characters would begin with a plot from a real story, then
simply continue it.<footnote><para>
<!-- f24 -->
-For an early and prescient analysis, see Rebecca Tushnet, "Legal Fictions,
-Copyright, Fan Fiction, and a New Common Law," <citetitle>Loyola of Los Angeles
+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.
</para></footnote>
</para>
<para>
Changes in scope are the easier ones to describe. As Senator John
McCain summarized the data produced in the FCC's review of media
-ownership,
"five companies control 85 percent of our media sources."<footnote><para>
+ownership,
<quote>five companies control 85 percent of our media sources.</quote><footnote><para>
<!-- f25 -->
FCC Oversight: Hearing Before the Senate Commerce, Science and
Transportation Committee, 108th Cong., 1st sess. (22 May 2003)
Entertainment, Warner Music Group, and EMI control 84.8 percent of the
U.S. music market.<footnote><para>
<!-- f26 -->
-Lynette Holloway, "Despite a Marketing Blitz, CD Sales Continue to
-Slide," <citetitle>New York Times</citetitle>, 23 December 2002.
+Lynette Holloway, <quote>Despite a Marketing Blitz, CD Sales Continue to
+Slide,</quote> <citetitle>New York Times</citetitle>, 23 December 2002.
</para></footnote>
-The "five largest cable companies pipe
-programming to 74 percent of the cable subscribers nationwide.
"<footnote><para>
+The <quote>five largest cable companies pipe
+programming to 74 percent of the cable subscribers nationwide.
</quote><footnote><para>
<!-- f27 -->
-Molly Ivins, "Media Consolidation Must Be Stopped," <citetitle>Charleston Gazette</citetitle>,
+Molly Ivins, <quote>Media Consolidation Must Be Stopped,</quote> <citetitle>Charleston Gazette</citetitle>,
31 May 2003.
</para></footnote>
<indexterm><primary>BMG</primary></indexterm>
Murdoch becomes DirecTV's largest single owner, that system will serve
the same function in the United States.<footnote><para>
<!-- f28 -->
-James Fallows, "The Age of Murdoch," <citetitle>Atlantic Monthly</citetitle> (September
+James Fallows, <quote>The Age of Murdoch,</quote> <citetitle>Atlantic Monthly</citetitle> (September
2003): 89.
<indexterm><primary>Fallows, James</primary></indexterm>
</para></footnote>
The copyrights that Lear held assured an independence from network
control.<footnote><para>
<!-- f29 -->
-Leonard Hill, "The Axis of Access," remarks before Weidenbaum Center
-Forum, "Entertainment Economics: The Movie Industry," St. Louis,
+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
required a separation between the networks and the content producers;
that separation would guarantee Lear freedom. And as late as 1992,
because of these rules, the vast majority of prime time
-television—75 percent of it—was "independent" of the
+television—75 percent of it—was <quote>independent</quote> of the
networks.
</para>
<para>
In 1994, the FCC abandoned the rules that required this independence.
After that change, the networks quickly changed the balance. In 1985,
there were twenty-five independent television production studios; in
-2002, only five independent television studios remained. "In 1992,
+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." "In 1992, 16
+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.
"<footnote><para>
+year there was one.
</quote><footnote><para>
<!-- f30 -->
NewsCorp./DirecTV Merger and Media Consolidation: Hearings on Media
Ownership Before the Senate Commerce Committee, 108th Cong., 1st
2003.
</para></footnote>
In 2002, 75 percent of prime time television was owned by the networks
-that ran it. "In the ten-year period between 1992 and 2002, the number
+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><footnote><para>
<!-- f31 -->
Ibid.
</para></footnote>
companies producing television programs. Now you have less than a
handful.<footnote><para>
<!-- f32 -->
-"Barry Diller Takes on Media Deregulation," <citetitle>Now with Bill Moyers</citetitle>, Bill
+<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>.
</para></footnote>
<indexterm><primary>Clark, Kim B.</primary></indexterm>
<para>
Economics itself offers a parallel that explains why this integration
-affects creativity. Clay Christensen has written about the "Innovator's
-Dilemma": the fact that large traditional firms find it rational to ignore
+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.<footnote><para>
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, "The Interaction of Design Hierarchies and Market
-Concepts in Technological Evolution," <citetitle>Research Policy</citetitle> 14 (1985):
+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>
depend fundamentally upon the press to help inform Americans about
these issues.
</para>
+<indexterm id='idxadvertising3' class='startofrange'>
+ <primary>advertising</primary>
+</indexterm>
<para>
Beginning in 1998, the Office of National Drug Control Policy launched
-a media campaign as part of the "war on drugs." The campaign produced
+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
</para>
<para>
No. You cannot. Television stations have a general policy of avoiding
-"controversial" ads. Ads sponsored by the government are deemed
+<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
<!-- f34 -->
The Marijuana Policy Project, in February 2003, sought to place ads
that directly responded to the Nick and Norm series on stations within
-the Washington, D.C., area. Comcast rejected the ads as "against
-[their] policy." The local NBC affiliate, WRC, rejected the ads
+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, "On the Issue of
-an Iraq War, Advocacy Ads Meet with Rejection from TV Networks," <citetitle>New
+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, "Ad
+even the playing field. For a general overview, see Rhonda Brown, <quote>Ad
Hoc Access: The Regulation of Editorial Advertising on Television and
-Radio," <citetitle>Yale Law and Policy Review</citetitle> 6 (1988): 449–79, and for a
+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, "Antidiesel Group Fuming
-After Muni Rejects Ad," SFGate.com, 16 June 2003, available at
+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 "too controversial."
+was that the criticism was <quote>too controversial.</quote>
<indexterm><primary>ABC</primary></indexterm>
<indexterm><primary>Comcast</primary></indexterm>
<indexterm><primary>Marijuana Policy Project</primary></indexterm>
<indexterm><primary>NBC</primary></indexterm>
<indexterm><primary>WJOA</primary></indexterm>
<indexterm><primary>WRC</primary></indexterm>
+<indexterm><primary>advertising</primary></indexterm>
</para></footnote>
</para>
<para>
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.
</para>
+<indexterm startref='idxadvertising3' class='endofrange'/>
</section>
<section id="together">
<title>Together</title>
<para>
There is something innocent and obvious about the claim of the
-copyright warriors that the government should "protect my property."
+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.
</para>
<para>
-But when we see how dramatically this "property" has changed—
+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
less innocent and obvious. Given (1) the power of technology to
supplement the law's control, and (2) the power of concentrated
markets to weaken the opportunity for dissent, if strictly enforcing
-the massively expanded "property" rights granted by copyright
+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.
significant regulation of culture that our free society has
known.<footnote><para>
<!-- f35 -->
-Siva Vaidhyanathan captures a similar point in his "four surrenders" of
+Siva Vaidhyanathan captures a similar point in his <quote>four surrenders</quote> of
copyright law in the digital age. See Vaidhyanathan, 159–60.
<indexterm><primary>Vaidhyanathan, Siva</primary></indexterm>
</para></footnote>
</para>
<para>
The issue is therefore not simply whether copyright is property. Of
-course copyright is a kind of "property," and of course, as with any
+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<footnote><para>
<!-- f36 -->
It was the single most important contribution of the legal realist
movement to demonstrate that all property rights are always crafted to
-balance public and private interests. See Thomas C. Grey, "The
-Disintegration of Property," in <citetitle>Nomos XXII: Property</citetitle>, J. Roland
+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).
<indexterm><primary>legal realist movement</primary></indexterm>
has been crafted to balance the important need to give authors and
artists incentives with the equally important need to assure access to
creative work. This balance has always been struck in light of new
-technologies. And for almost half of our tradition, the "copyright"
+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.
</para>
+<indexterm><primary>archives, digital</primary></indexterm>
<para>
We achieved that free culture because our law respected important
-limits on the scope of the interests protected by "property." The very
-birth of "copyright" as a statutory right recognized those limits, by
+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 6). The tradition of "fair use" is animated by a
+story of chapter 6). 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 7). Adding
<primary>Wells, H. G.</primary>
</indexterm>
<indexterm id="idxtcotb" class='startofrange'>
- <primary>"Country of the Blind, The" (Wells)</primary>
+ <primary><quote>Country of the Blind, The</quote> (Wells)</primary>
</indexterm>
<para>
named Nunez trips (literally, down an ice slope) into an unknown and
isolated valley in the Peruvian Andes.<footnote><para>
<!-- f1. -->
-H. G. Wells, "The Country of the Blind" (1904, 1911). See H. G. Wells,
+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).
</para></footnote>
-The valley is extraordinarily beautiful, with "sweet water, pasture,
+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." But the villagers are all blind. Nunez
-takes this as an opportunity. "In the Country of the Blind," he tells
-himself, "the One-Eyed Man is King." So he resolves to live with the
+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.
</para>
<para>
Things don't go quite as he planned. He tries to explain the idea of
sight to the villagers. They don't understand. He tells them they are
-"blind." They don't have the word <citetitle>blind</citetitle>. They think he's just thick.
+<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. "`You
+to control him. He, in turn, becomes increasingly frustrated. <quote>`You
don't understand,' he cried, in a voice that was meant to be great and
resolute, and which broke. `You are blind and I can see. Leave me
-alone!'"
+alone!'</quote>
</para>
<para>
<!-- PAGE BREAK 187 -->
The villagers don't leave him alone. Nor do they see (so to speak) the
virtue of his special power. Not even the ultimate target of his
-affection, a young woman who to him seems "the most beautiful thing in
-the whole of creation," understands the beauty of sight. Nunez's
-description of what he sees "seemed to her the most poetical of
+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." "She did not believe," Wells tells us, and "she could
-only half understand, but she was mysteriously delighted."
+indulgence.</quote> <quote>She did not believe,</quote> Wells tells us, and <quote>she could
+only half understand, but she was mysteriously delighted.</quote>
</para>
<para>
-When Nunez announces his desire to marry his "mysteriously delighted"
-love, the father and the village object. "You see, my dear," her
-father instructs, "he's an idiot. He has delusions. He can't do
-anything right." They take Nunez to the village doctor.
+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.
</para>
<para>
-After a careful examination, the doctor gives his opinion. "His brain
-is affected," he reports.
+After a careful examination, the doctor gives his opinion. <quote>His brain
+is affected,</quote> he reports.
</para>
<para>
-"What affects it?" the father asks. "Those queer things that are
+<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."
+his brain.</quote>
</para>
<para>
-The doctor continues: "I think I may say with reasonable certainty
+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]."
+irritant bodies [the eyes].</quote>
</para>
<para>
-"Thank Heaven for science!" says the father to the doctor. They inform
+<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.)
It sometimes happens that the eggs of twins fuse in the mother's
-womb. That fusion produces a "chimera." A chimera is a single creature
+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
<!-- PAGE BREAK 188 -->
-plot for murder mysteries. "But the DNA shows with 100 percent
+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. …"
+scene. …</quote>
</para>
<indexterm startref="idxtcotb" class='endofrange'/>
<indexterm startref="idxwells" class="endofrange"/>
of DNA is that it is the code of an individual. Yet in fact, not only
can two individuals have the same set of DNA (identical twins), but
one person can have two different sets of DNA (a chimera). Our
-understanding of a "person" should reflect this reality.
+understanding of a <quote>person</quote> should reflect this reality.
</para>
<para>
The more I work to understand the current struggle over copyright and
culture, which I've sometimes called unfairly, and sometimes not
-unfairly enough, "the copyright wars," the more I think we're dealing
-with a chimera. For example, in the battle over the question "What is
-p2p file sharing?" both sides have it right, and both sides have it
-wrong. One side says, "File sharing is just like two kids taping each
+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." That's true, at least in
+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
But the description is also false in part. For when my p2p server is
on a p2p network through which anyone can get access to my music, then
sure, my friends can get access, but it stretches the meaning of
-"friends" beyond recognition to say "my ten thousand best friends" can
+<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 "we have always been allowed to do," we have not always been
-allowed to share music with "our ten thousand best friends."
+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>
</para>
<para>
-Likewise, when the other side says, "File sharing is just like walking
+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," that's true, at least in part. If, after Lyle Lovett
+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.
<!-- f2. -->
For an excellent summary, see the report prepared by GartnerG2 and the
Berkman Center for Internet and Society at Harvard Law School,
-"Copyright and Digital Media in a Post-Napster World," 27 June 2003,
+<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, "House Bill Aims to Up
-Stakes on Piracy," <citetitle>Los Angeles Times</citetitle>, 17 July 2003, available at
+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
$12,000 to $17,500 for four students accused of heavy file sharing on
university networks must have seemed a mere pittance next to the $98
billion the RIAA could seek should the matter proceed to court. See
-Elizabeth Young, "Downloading Could Lead to Fines," redandblack.com,
+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, "RIAA Steps Up Bid to Force BC, MIT to
-Name Students," <citetitle>Boston Globe</citetitle>, 8 August 2003, D3, available at
+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>.
<indexterm><primary>Conyers, John, Jr.</primary></indexterm>
<indexterm><primary>Berman, Howard L.</primary></indexterm>
innovation and new creativity will be lost.
</para>
<para>
-I'm not talking about the opportunities for kids to "steal" music. My
+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
<!-- PAGE BREAK 191 -->
<para>
In April 2001, eMusic.com was purchased by Vivendi Universal,
-one of "the major labels." Its position on these matters has now
+one of <quote>the major labels.</quote> Its position on these matters has now
changed.
<indexterm><primary>Vivendi Universal</primary></indexterm>
</para>
<chapter label="12" id="harms">
<title>CHAPTER TWELVE: Harms</title>
<para>
-To fight "piracy," to protect "property," the content industry has
+To fight <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
</para>
<para>
My aim so far has been to describe the consequences of this war, in
-particular, the consequences for "free culture." But my aim now is to
+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?
</para>
<para>
In my view, it is not. There is no good reason why this time, for the
first time, the law should defend the old against the new, just when the
-power of the property called "intellectual property" is at its greatest in
+power of the property called <quote>intellectual property</quote> is at its greatest in
our history.
</para>
<indexterm><primary>Causby, Thomas Lee</primary></indexterm>
<indexterm><primary>Causby, Tinie</primary></indexterm>
<para>
-Yet "common sense" does not see it this way. Common sense is still on
+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 "piracy" still has play.
+rejection of <quote>piracy</quote> still has play.
</para>
+<indexterm><primary>Armstrong, Edwin Howard</primary></indexterm>
<para>
<!-- PAGE BREAK 193 -->
There will be many consequences of continuing this war. I want to
favorite artists in a collage and make it available on the Net.
</para>
<para>
-This digital "capturing and sharing" is in part an extension of the
+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 "capturing and sharing" promises a world of extraordinarily
+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
<!-- f1. -->
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, "MCI Wins U.S. District Court
-Approval for SEC Settlement" (7 July 2003), available at
+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>.
<indexterm><primary>Worldcom</primary></indexterm>
</para></footnote>
<para>
<!-- f2. --> The bill, modeled after California's tort reform model, was passed in the
House of Representatives but defeated in a Senate vote in July 2003. For
-an overview, see Tanya Albert, "Measure Stalls in Senate: `We'll Be Back,'
-Say Tort Reformers," amednews.com, 28 July 2003, available at
+an overview, see Tanya Albert, <quote>Measure Stalls in Senate: `We'll Be Back,'
+Say Tort Reformers,</quote> amednews.com, 28 July 2003, available at
<ulink url="http://free-culture.cc/notes/">link #38</ulink>,
-and "Senate Turns Back Malpractice Caps," CBSNews.com, 9 July 2003,
+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.
than the fine for a doctor's negligently butchering a patient?
<indexterm><primary>Worldcom</primary></indexterm>
</para>
+<indexterm><primary>art, underground</primary></indexterm>
<para>
The consequence of this legal uncertainty, tied to these extremely
high penalties, is that an extraordinary amount of creativity will
either never be exercised, or never be exercised in the open. We drive
this creative process underground by branding the modern-day Walt
-Disneys "pirates." We make it impossible for businesses to rely upon a
+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
we will begin to see a world of underground art—not because the
message is necessarily political, or because the subject is
controversial, but because the very act of creating the art is legally
-fraught. Already, exhibits of "illegal art" tour the United
+fraught. Already, exhibits of <quote>illegal art</quote> tour the United
States.<footnote><para>
<!-- f3. -->
-See Danit Lidor, "Artists Just Wanna Be Free," <citetitle>Wired</citetitle>, 7 July
+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>.
</para></footnote>
- In what does their "illegality" consist?
+ 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.
</para>
</para>
<para>
Judges and lawyers can tell themselves that fair use provides adequate
-"breathing room" between regulation by the law and the access the law
+<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 "law" with which judges
+these rules have little relationship to the <quote>law</quote> with which judges
comfort themselves.
</para>
<para>
which would never return to the wrongfully accused defendant anything
of the costs she suffered to defend her right to speak—in that
world, the astonishingly broad regulations that pass under the name
-"copyright" silence speech and creativity. And in that world, it takes
+<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.
</para>
won't get distributed. Even if the stuff gets made … you're not
going to get it distributed in the mainstream media unless
<!-- PAGE BREAK 197 -->
-you've got a little note from a lawyer saying, "This has been
-cleared." You're not even going to get it on PBS without that kind of
+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.
</para>
</blockquote>
Indeed, it is an aspect that could be written by the most extreme
promarket ideologue. And if you're one of these sorts (and a special
one at that, 188 pages into a book like this), then you can see this
-other aspect by substituting "free market" every place I've spoken of
-"free culture." The point is the same, even if the interests
+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.
</para>
+<indexterm><primary>market constraints</primary></indexterm>
<para>
The charge I've been making about the regulation of culture is the
same charge free marketers make about regulating markets. Everyone, of
industries. That lesson has been taught through a series of cases
that were designed and executed to teach venture capitalists a
lesson. That lesson—what former Napster CEO Hank Barry calls a
-"nuclear pall" that has fallen over the Valley—has been learned.
+<quote>nuclear pall</quote> that has fallen over the Valley—has been learned.
</para>
<para>
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.
</para>
+<indexterm><primary>Roberts, Michael</primary></indexterm>
<para>
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
<indexterm startref="idxvivendiuniversal" class='endofrange'/>
<indexterm><primary>Hummer, John</primary></indexterm>
<indexterm><primary>Barry, Hank</primary></indexterm>
+<indexterm><primary>Hummer Winblad</primary></indexterm>
<para>
This strategy is not just limited to the lawyers. In April 2003,
Universal and EMI brought a lawsuit against Hummer Winblad, the
its development, its cofounder ( John Hummer), and general partner
(Hank Barry).<footnote><para>
<!-- f4. -->
-See Joseph Menn, "Universal, EMI Sue Napster Investor," <citetitle>Los Angeles
+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, "The Music
-Revolution Will Not Be Digitized," Salon.com, 1 June 2001, available
+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, "Online Music Services Besieged," <citetitle>Los Angeles
+See also Jon Healey, <quote>Online Music Services Besieged,</quote> <citetitle>Los Angeles
Times</citetitle>, 28 May 2001.
</para></footnote>
The claim here, as well, was that the VC should have recognized the
United States with bona fide MP3 players. … <footnote>
<para>
<!-- f5. -->
-Rafe Needleman, "Driving in Cars with MP3s," <citetitle>Business 2.0</citetitle>, 16 June
+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.
</para>
</blockquote>
<para>
-This is the world of the mafia—filled with "your money or your
-life" offers, governed in the end not by courts but by the threats
+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
<!-- PAGE BREAK 201 -->
The point is not that businesses should have a right to start illegal
-enterprises. The point is the definition of "illegal." The law is a
+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
unlimited liability, we will have much less vibrant innovation and
much less creativity.
</para>
+<indexterm><primary>market constraints</primary></indexterm>
<para>
The point is directly parallel to the crunchy-lefty point about fair
-use. Whatever the "real" law is, realism about the effect of law in
+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
The motivation for this response is obvious. The Internet enables the
efficient spread of content. That efficiency is a feature of the
Internet's design. But from the perspective of the content industry,
-this feature is a "bug." The efficient spread of content means that
+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 "piracy," then,
+the Internet less efficient. If the Internet enables <quote>piracy,</quote> then,
this response says, we should break the kneecaps of the Internet.
</para>
+<indexterm><primary>broadcast flag</primary></indexterm>
<para>
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.<footnote><para>
-<!-- f6. --> "Copyright and Digital Media in a Post-Napster World," GartnerG2 and
+<!-- f6. --> <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>.
</para></footnote>
Congress has already launched proceedings to explore a mandatory
-"broadcast flag" that would be required on any device capable of
+<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
Intel, tried to get Congress to see the harm that such legislation
would impose.<footnote><para>
<!-- f8. -->
-See David McGuire, "Tech Execs Square Off Over Piracy," Newsbytes,
+See David McGuire, <quote>Tech Execs Square Off Over Piracy,</quote> Newsbytes,
February 2002 (Entertainment).
</para></footnote>
Their argument was obviously not that copyright should not be
implemented by Congress. I won't catalog all of those responses
here.<footnote><para>
<!-- f11. -->
+<indexterm><primary>Tauzin, Billy</primary></indexterm>
For example, in July 2002, Representative Howard Berman introduced the
Peer-to-Peer Piracy Prevention Act (H.R. 5211), which would immunize
copyright holders from liability for damage done to computers when the
copyright holders use technology to stop copyright infringement. In
August 2002, Representative Billy Tauzin introduced a bill to mandate
that technologies capable of rebroadcasting digital copies of films
-broadcast on TV (i.e., computers) respect a "broadcast flag" that
+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, "Copyright and
-Digital Media in a Post-Napster World," 27 June 2003, 33–34,
+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>.
<indexterm><primary>Berman, Howard L.</primary></indexterm>
+<indexterm><primary>Hollings, Fritz</primary></indexterm>
+<indexterm><primary>broadcast flag</primary></indexterm>
</para></footnote>
But there is one example that captures the flavor of them all. This is
the story of the demise of Internet radio.
</para>
+<indexterm>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
<para>
<!-- PAGE BREAK 204 -->
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 "radio performance" unless he or she
+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 "Happy Birthday"—to memorialize her famous
+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 "Happy Birthday" would get some money, whereas
+copyright owners of <quote>Happy Birthday</quote> would get some money, whereas
Marilyn Monroe would not.
<indexterm><primary>Kennedy, John F.</primary></indexterm>
</para>
Enter Internet radio. Like regular radio, Internet radio is a
technology to stream content from a broadcaster to a listener. The
broadcast travels across the Internet, not across the ether of radio
-spectrum. Thus, I can "tune in" to an Internet radio station in
+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.
of users worldwide. According to some estimates, more than eighty
million users worldwide have tuned in to this new form of radio.
</para>
+<indexterm><primary>Armstrong, Edwin Howard</primary></indexterm>
<para>
<!-- PAGE BREAK 205 -->
<para>
This potential for FM radio was never realized—not
because Armstrong was wrong about the technology, but because he
-underestimated the power of "vested interests, habits, customs and
-legislation
"<footnote><para>
+underestimated the power of <quote>vested interests, habits, customs and
+legislation
</quote><footnote><para>
<!-- f13. -->
Ibid., 229.
</para></footnote>
question we should ask is, what copyright rules would govern Internet
radio?
</para>
+<indexterm id='idxartistspayments2' class='startofrange'>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
<para>
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
a different rule for Internet radio than the rule that applies to
terrestrial radio. While terrestrial radio does not have to pay our
hypothetical Marilyn Monroe when it plays her hypothetical recording
-of "Happy Birthday" on the air, <emphasis>Internet radio
+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.
DTRA 1 and 2, available at
<ulink url="http://free-culture.cc/notes/">link #45</ulink>.
For an excellent analysis making a similar point, see Randal
-C. Picker, "Copyright as Entry Policy: The Case of Digital
-Distribution," <citetitle>Antitrust Bulletin</citetitle> (Summer/Fall 2002): 461: "This was
+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."
+interests, that could have been done in a media-neutral way.</quote>
<indexterm><primary>CARP (Copyright Arbitration Royalty Panel)</primary></indexterm>
<indexterm><primary>Picker, Randal C.</primary></indexterm>
</para></footnote>
A regular radio station broadcasting the same content would pay no
equivalent fee.
</para>
+<indexterm startref='idxartistspayments2' class='endofrange'/>
<para>
The burden is not financial only. Under the original rules that were
proposed, an Internet radio station (but not a terrestrial radio
economic consequences from Internet radio that would justify these
differences? Was the motive to protect artists against piracy?
</para>
-<indexterm><primary>Alben, Alex</primary></indexterm>
+<indexterm><primary>Real Networks</primary></indexterm>
+<indexterm id='idxalbenalex2' class='startofrange'>
+ <primary>Alben, Alex</primary>
+</indexterm>
<para>
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
pay to a willing seller, and it was much higher. It was ten times
higher than what radio stations pay to perform the same songs for
the same period of time. And so the attorneys representing the
-webcasters asked the RIAA, … "How do you come up with a
+webcasters asked the RIAA, … <quote>How do you come up with a
<!-- PAGE BREAK 208 -->
-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. …"
+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>
</para>
+<indexterm>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
<para>
-And the RIAA experts said, "Well, we don't really model this as an
+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>." (Emphasis
+high rate and it's a stable, predictable market</emphasis>.</quote> (Emphasis
added.)
</para>
</blockquote>
+<indexterm startref='idxalbenalex2' class='endofrange'/>
<para>
Translation: The aim is to use the law to eliminate competition, so
that this platform of potentially immense competition, which would
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.<footnote><para>
-<!-- f15. --> Mike Graziano and Lee Rainie, "The Music Downloading Deluge," Pew
+<!-- f15. --> 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
housing and a seventy-year-old man who had no idea what file sharing
was.<footnote><para>
<!-- f16. -->
-Alex Pham, "The Labels Strike Back: N.Y. Girl Settles RIAA Case," <citetitle>Los
+Alex Pham, <quote>The Labels Strike Back: N.Y. Girl Settles RIAA Case,</quote> <citetitle>Los
Angeles Times</citetitle>, 10 September 2003, Business.
</para></footnote>
As these scapegoats discovered, it will always cost more to defend
level. Americans were drinking just about as much, but now, a vast
number were criminals.<footnote><para>
<!-- f17. -->
-Jeffrey A. Miron and Jeffrey Zwiebel, "Alcohol Consumption During
-Prohibition," <citetitle>American Economic Review</citetitle> 81, no. 2 (1991): 242.
+Jeffrey A. Miron and Jeffrey Zwiebel, <quote>Alcohol Consumption During
+Prohibition,</quote> <citetitle>American Economic Review</citetitle> 81, no. 2 (1991): 242.
</para></footnote>
We have
<!-- PAGE BREAK 210 -->
tax system that a majority of cash businesses regularly
cheat.<footnote><para>
<!-- f19. -->
-See James Andreoni, Brian Erard, and Jonathon Feinstein, "Tax
-Compliance," <citetitle>Journal of Economic Literature</citetitle> 36 (1998): 818 (survey of
+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).
</para></footnote>
-We pride ourselves on our "free society," but an endless array of
+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.
<indexterm><primary>alcohol prohibition</primary></indexterm>
<para>
This state of affairs is not without consequence. It is a particularly
salient issue for teachers like me, whose job it is to teach law
-students about the importance of "ethics." As my colleague Charlie
+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,
that will mean that your case is over. Generations of
Americans—more significantly in some parts of America than in
others, but still, everywhere in America today—can't live their
-lives both normally and legally, since "normally" entails a certain
+lives both normally and legally, since <quote>normally</quote> entails a certain
degree of illegality.
<indexterm><primary>law schools</primary></indexterm>
</para>
whether my students respect the law. And I do care if the rules of law
sow increasing disrespect because of the extreme of regulation they
impose. Twenty million Americans have come of age since the Internet
-introduced this different idea of "sharing." We need to be able to
-call these twenty million Americans "citizens," not "felons."
+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>
</para>
<para>
When at least forty-three million citizens download content from the
used
<!-- PAGE BREAK 212 -->
-record store and buy jazz records to replace them. That "use" of the
+record store and buy jazz records to replace them. That <quote>use</quote> of the
recordings is free.
</para>
<para>
But as the MP3 craze has demonstrated, there is another use of
phonograph records that is effectively free. Because these recordings
-were made without copy-protection technologies, I am "free" to copy,
-or "rip," music from my records onto a computer hard disk. Indeed,
-Apple Corporation went so far as to suggest that "freedom" was a
-right: In a series of commercials, Apple endorsed the "Rip, Mix, Burn"
+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.
</para>
<indexterm><primary>Adromeda</primary></indexterm>
<para>
-This "use" of my records is certainly valuable. I have begun a large
+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
<!-- PAGE BREAK 213 -->
use of CDs. The technology, in other words, would force us all back to
the world where we either listened to music by manipulating pieces of
-plastic or were part of a massively complex "digital rights
-management" system.
+plastic or were part of a massively complex <quote>digital rights
+management</quote> system.
</para>
<para>
If the only way to assure that artists get paid were the elimination
There's one more aspect to this corruption that is particularly
important to civil liberties, and follows directly from any war of
prohibition. As Electronic Frontier Foundation attorney Fred von
-Lohmann describes, this is the "collateral damage" that "arises
+Lohmann describes, this is the <quote>collateral damage</quote> that <quote>arises
whenever you turn a very large percentage of the population into
-criminals." This is the collateral damage to civil liberties
+criminals.</quote> This is the collateral damage to civil liberties
generally.
<indexterm><primary>Electronic Frontier Foundation</primary></indexterm>
</para>
<para>
-"If you can treat someone as a putative lawbreaker," von Lohmann
+<quote>If you can treat someone as a putative lawbreaker,</quote> von Lohmann
explains,
<indexterm><primary>von Lohmann, Fred</primary></indexterm>
</para>
infringer, how can you hope to have any privacy rights? If you're a
copyright infringer, how can you hope to be secure against seizures of
your computer? How can you hope to continue to receive Internet
-access? … Our sensibilities change as soon as we think, "Oh, well,
-but that person's a criminal, a lawbreaker." Well, what this campaign
+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 "lawbreakers."
+American Internet-using population into <quote>lawbreakers.</quote>
</para>
</blockquote>
<para>
the RIAA from suing a number of these families, just as they had sued
Jesse Jordan.<footnote><para>
<!-- f20. -->
-See Frank Ahrens, "RIAA's Lawsuits Meet Surprised Targets; Single
-Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants,"
-<citetitle>Washington Post</citetitle>, 10 September 2003, E1; Chris Cobbs, "Worried Parents
+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 `Stealing'; With the Music Industry Cracking Down on
File Swapping, Parents are Yanking Software from Home PCs to Avoid
-Being Sued," <citetitle>Orlando Sentinel Tribune</citetitle>, 30 August 2003, C1; Jefferson
-Graham, "Recording Industry Sues Parents," <citetitle>USA Today</citetitle>, 15 September
-2003, 4D; John Schwartz, "She Says She's No Music Pirate. No Snoop
-Fan, Either," <citetitle>New York Times</citetitle>, 25 September 2003, C1; Margo Varadi, "Is
-Brianna a Criminal?" <citetitle>Toronto Star</citetitle>, 18 September 2003, P7.
+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.
</para></footnote>
</para>
RIAA. A report from CNN late last summer described a strategy the
RIAA had adopted to track Napster users.<footnote><para>
<!-- f21. -->
-See "Revealed: How RIAA Tracks Downloaders: Music Industry Discloses
-Some Methods Used," CNN.com, available at
+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>.
</para></footnote>
Using a sophisticated hashing algorithm, the RIAA took what is in
effect a fingerprint of every song in the Napster catalog. Any copy of
-one of those MP3s will have the same "fingerprint."
+one of those MP3s will have the same <quote>fingerprint.</quote>
</para>
<para>
So imagine the following not-implausible scenario: Imagine a
neither does your daughter, where these songs came from. But she
copies these songs onto her computer. She then takes her computer to
college and connects it to a college network, and if the college
-network is "cooperating" with the RIAA's espionage, and she hasn't
+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 "criminal." And under the rules that universities are beginning
+as a <quote>criminal.</quote> And under the rules that universities are beginning
to deploy,<footnote><para>
<!-- f22. -->
-See Jeff Adler, "Cambridge: On Campus, Pirates Are Not Penitent,"
-<citetitle>Boston Globe</citetitle>, 18 May 2003, City Weekly, 1; Frank Ahrens, "Four
+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," <citetitle>Washington Post</citetitle>, 4 April 2003, E1; Elizabeth Armstrong,
-"Students `Rip, Mix, Burn' at Their Own Risk," <citetitle>Christian Science
-Monitor</citetitle>, 2 September 2003, 20; Robert Becker and Angela Rozas, "Music
+Colleges,</quote> <citetitle>Washington Post</citetitle>, 4 April 2003, E1; Elizabeth Armstrong,
+<quote>Students `Rip, Mix, Burn' 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," <citetitle>Chicago Tribune</citetitle>, 16 July 2003, 1C; Beth Cox, "RIAA
-Trains Antipiracy Guns on Universities," <citetitle>Internet News</citetitle>, 30 January
+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, "Download Warning 101: Freshman
+#48</ulink>; Benny Evangelista, <quote>Download Warning 101: Freshman
Orientation This Fall to Include Record Industry Warnings Against File
-Sharing," <citetitle>San Francisco Chronicle</citetitle>, 11 August 2003, E11; "Raid, Letters
-Are Weapons at Universities," <citetitle>USA Today</citetitle>, 26 September 2000, 3D.
+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.
</para></footnote>
your daughter can lose the right to use the university's computer
network. She can, in some cases, be expelled.
plead that she didn't know anything about the source of the songs or
that they came from Napster. And it may well be that the university
believes her. But the university might not believe her. It might treat
-this "contraband" as presumptive of guilt. And as any number of
+this <quote>contraband</quote> as presumptive of guilt. And as any number of
college students
<!-- PAGE BREAK 216 -->
</para>
</blockquote>
<para>
-When forty to sixty million Americans are considered "criminals" under
+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 "criminals," who is the villain? Americans or the law?
+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?
</para>
<!-- PAGE BREAK 220 -->
<chapter label="13" id="eldred">
<title>CHAPTER THIRTEEN: Eldred</title>
+<indexterm id="idxhawthornenathaniel" class='startofrange'>
+ <primary>Hawthorne, Nathaniel</primary>
+</indexterm>
<para>
In 1995, a father was frustrated that his daughters didn't seem to
like Hawthorne. No doubt there was more than one such father, but at
(<citetitle>The Hunchback of Notre Dame</citetitle>, <citetitle>Treasure Planet</citetitle>). These are all
commercial publications of public domain works.
</para>
+<indexterm startref="idxhawthornenathaniel" class='endofrange'/>
<para>
The Internet created the possibility of noncommercial publications of
public domain works. Eldred's is just one example. There are literally
thousands of others. Hundreds of thousands from across the world have
discovered this platform of expression and now use it to share works
that are, by law, free for the taking. This has produced what we might
-call the "noncommercial publishing industry," which before the
+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
if Congress extends the term again). By contrast, in the same period,
more than 1 million patents will pass into the public domain.
</para>
+<indexterm><primary>Bono, Mary</primary></indexterm>
+<indexterm><primary>Bono, Sonny</primary></indexterm>
<para>
<!-- PAGE BREAK 222 -->
This was the Sonny Bono Copyright Term Extension Act
(CTEA), enacted in memory of the congressman and former musician
Sonny Bono, who, his widow, Mary Bono, says, believed that
-
"copyrights should be forever."<footnote><para>
+
<quote>copyrights should be forever.</quote><footnote><para>
<!-- f2. -->
-The full text is: "Sonny [Bono] wanted the term of copyright
+<indexterm><primary>Bono, Mary</primary></indexterm>
+<indexterm><primary>Bono, Sonny</primary></indexterm>
+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," 144 Cong. Rec. H9946, 9951-2 (October 7, 1998).
+Congress,</quote> 144 Cong. Rec. H9946, 9951-2 (October 7, 1998).
</para></footnote>
</para>
As I've described, this clause is unique within the power-granting
clause of Article I, section 8 of our Constitution. Every other clause
granting power to Congress simply says Congress has the power to do
-something—for example, to regulate "commerce among the several
-states" or "declare War." But here, the "something" is something quite
-specific—to "promote … Progress"—through means that
-are also specific— by "securing" "exclusive Rights" (i.e.,
-copyrights) "for limited Times."
+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>
</para>
<para>
In the past forty years, Congress has gotten into the practice of
extending existing terms of copyright protection. What puzzled me
about this was, if Congress has the power to extend existing terms,
-then the Constitution's requirement that terms be "limited" will have
+then the Constitution's requirement that terms be <quote>limited</quote> will have
<!-- PAGE BREAK 223 -->
no practical effect. If every time a copyright is about to expire,
Congress has the power to extend its term, then Congress can achieve
-what the Constitution plainly forbids—perpetual terms "on the
-installment plan," as Professor Peter Jaszi so nicely put it.
+what the Constitution plainly forbids—perpetual terms <quote>on the
+installment plan,</quote> as Professor Peter Jaszi so nicely put it.
<indexterm><primary>Jaszi, Peter</primary></indexterm>
</para>
<para>
</para>
<para>
For this is the core of the corruption in our present system of
-government. "Corruption" not in the sense that representatives are
-bribed. Rather, "corruption" in the sense that the system induces the
+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
report:
</para>
<para>
-"Next year," the adviser announces, "our copyrights in works A, B,
+<quote>Next year,</quote> the adviser announces, <quote>our copyrights in works A, B,
<!-- PAGE BREAK 224 -->
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.
+those works.</quote>
</para>
<para>
-"There's a proposal in Congress, however," she continues, "that
+<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."
+valuable to us. So we should hope this bill passes.</quote>
</para>
<para>
-"Hope?" a fellow board member says. "Can't we be doing something
-about it?"
+<quote>Hope?</quote> a fellow board member says. <quote>Can't we be doing something
+about it?</quote>
</para>
<para>
-"Well, obviously, yes," the adviser responds. "We could contribute
+<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."
+they support the bill.</quote>
</para>
<para>
You hate politics. You hate contributing to campaigns. So you want
-to know whether this disgusting practice is worth it. "How much
-would we get if this extension were passed?" you ask the adviser. "How
-much is it worth?"
+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>
</para>
<para>
-"Well," the adviser says, "if you're confident that you will continue
+<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
`discount rate' that we use to evaluate estate investments (6 percent),
-then this law would be worth $1,146,000 to the estate."
+then this law would be worth $1,146,000 to the estate.</quote>
</para>
<para>
You're a bit shocked by the number, but you quickly come to the
correct conclusion:
</para>
<para>
-"So you're saying it would be worth it for us to pay more than
+<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?"
+would assure that the bill was passed?</quote>
</para>
<para>
-"Absolutely," the adviser responds. "It is worth it to you to
+<quote>Absolutely,</quote> the adviser responds. <quote>It is worth it to you to
contribute
up to the `present value' of the income you expect from these
-copyrights. Which for us means over $1,000,000."
+copyrights. Which for us means over $1,000,000.</quote>
</para>
<para>
You quickly get the point—you as the member of the board and, I
<para>
In the lobbying that led to the passage of the Sonny Bono
Copyright
-Term Extension Act, this "theory" about incentives was proved
+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.<footnote><para>
-<!-- f3. --> Associated Press, "Disney Lobbying for Copyright Extension No Mickey
-Mouse Effort; Congress OKs Bill Granting Creators 20 More Years,"
+<!-- f3. --> 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.
</para></footnote>
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.<footnote><para>
-<!-- f4. --> See Nick Brown, "Fair Use No More?: Copyright in the Information
-Age," available at
+<!-- f4. --> 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>.
</para></footnote>
Disney is estimated to have
contributed more than $800,000 to reelection campaigns in the
cycle.<footnote><para>
<!-- f5. -->
-Alan K. Ota, "Disney in Washington: The Mouse That Roars,"
+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>.
</para></footnote>
to interpreting and applying the Constitution of our framers would see
that if Congress has the power to extend existing terms, then there
would be no effective constitutional requirement that terms be
- "limited."
+ <quote>limited.</quote>
If they could extend it once, they would extend it again and again
and again.
</para>
<para>
Since 1937, the Supreme Court had interpreted Congress's granted
powers very broadly; so, while the Constitution grants Congress the
-power to regulate only "commerce among the several states" (aka
- "interstate
-commerce"), the Supreme Court had interpreted that power to
+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.
commerce. A Constitution designed to limit Congress's power was
instead interpreted to impose no limit.
</para>
+<indexterm><primary>Rehnquist, William H.</primary></indexterm>
<para>
The Supreme Court, under Chief Justice Rehnquist's command, changed
that in <citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>. The government had
position to second-guess Congress.
</para>
<para>
-"We pause to consider the implications of the government's arguments,"
+<quote>We pause to consider the implications of the government's arguments,</quote>
the Chief Justice wrote.<footnote><para>
<!-- f6. --> <citetitle>United States</citetitle> v. <citetitle>Lopez</citetitle>, 514 U.S. 549, 564 (1995).
</para></footnote>
notwithstanding. The same point is true in the context of the
Copyright Clause. Here, too, the government's interpretation would
allow the government unending power to regulate copyrights—the
-limitation to "limited times" notwithstanding.
+limitation to <quote>limited times</quote> notwithstanding.
</para></footnote>
And if it is applied to the Progress Clause, the principle should
yield the conclusion that Congress
<!-- PAGE BREAK 227 -->
can't extend an existing term. If Congress could extend an existing
-term, then there would be no "stopping point" to Congress's power over
+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
rights, using its power over Congress to advance its own personal
political preferences. But I rejected that view of the Supreme Court's
decision. Indeed, shortly after the decision, I wrote an article
-demonstrating the "fidelity" in such an interpretation of the
+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
<!-- PAGE BREAK 228 -->
before the Supreme Court, the Nashville Songwriters Association
-wrote that the public domain is nothing more than
"legal piracy."<footnote><para>
+wrote that the public domain is nothing more than
<quote>legal piracy.</quote><footnote><para>
<!-- f9. -->
Brief of the Nashville Songwriters Association, <citetitle>Eldred</citetitle>
v. <citetitle>Ashcroft</citetitle>, 537 U.S. 186 (2003) (No. 01-618), n.10, available
<para>
It is valuable copyrights that are responsible for terms being
extended.
-Mickey Mouse and "Rhapsody in Blue." These works are too
+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
remaining
9,873. What would you have to do?
</para>
+<indexterm><primary>archives, digital</primary></indexterm>
<para>
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 necessarily the current owner. And we're just talking about 1930!
</para>
<para>
-"But there isn't a list of who owns property generally," the
-apologists for the system respond. "Why should there be a list of
-copyright owners?"
+<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>
</para>
<para>
Well, actually, if you think about it, there <emphasis>are</emphasis>
consequence
for other creative works is much more dire.
</para>
-<indexterm><primary>Agee, Michael</primary></indexterm>
+<indexterm id='idxageemichael' class='startofrange'>
+ <primary>Agee, Michael</primary>
+</indexterm>
<indexterm><primary>Hal Roach Studios</primary></indexterm>
<indexterm><primary>Laurel and Hardy Films</primary></indexterm>
<para>
currently out of copyright. But for the CTEA, films made after 1923
would have begun entering the public domain. Because Agee controls the
exclusive rights for these popular films, he makes a great deal of
-money. According to one estimate, "Roach has sold about 60,000
+money. According to one estimate, <quote>Roach has sold about 60,000
videocassettes and 50,000 DVDs of the duo's silent
+films.
</quote><footnote><para>
<!-- f11. -->
-See David G. Savage, "High Court Scene of Showdown on Copyright Law,"
-<citetitle>Los Angeles Times</citetitle>, 6 October 2002; David Streitfeld, "Classic Movies,
+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," <citetitle>Orlando Sentinel Tribune</citetitle>, 9 October 2002.
+Down Copyright Extension,</quote> <citetitle>Orlando Sentinel Tribune</citetitle>, 9 October 2002.
</para></footnote>
<indexterm><primary>Lucky Dog, The</primary></indexterm>
to these films is exceptionally high.
</para>
<para>
-"But can't you just restore the film, distribute it, and then pay the
-copyright owner when she shows up?" Sure, if you want to commit a
+<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
films, Agee argued, the film will not be restored and distributed until
the copyright expires.
</para>
+<indexterm startref='idxageemichael' class='endofrange'/>
<para>
But by the time the copyright for these films expires, the film will
have expired. These films were produced on nitrate-based stock, and
copyright is a crucially important legal device. For that tiny fraction,
the copyright creates incentives to produce and distribute the
creative
-work. For that tiny fraction, the copyright acts as an "engine of
-free expression."
+work. For that tiny fraction, the copyright acts as an <quote>engine of
+free expression.</quote>
</para>
<para>
But even for that tiny fraction, the actual time during which the
<para>
But this situation has now changed.
</para>
+<indexterm id='idxarchivesdigital2' class='startofrange'>
+ <primary>archives, digital</primary>
+</indexterm>
<para>
One crucially important consequence of the emergence of digital
technologies is to enable the archive that Brewster Kahle dreams of.
an engine of free expression. Copyright is a brake.
</para>
<para>
-You may well ask, "But if digital technologies lower the costs for
+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?"
+culture widely?</quote>
</para>
<para>
Maybe. Someday. But there is absolutely no evidence to suggest that
publishers would be as complete as libraries. If Barnes & Noble
offered to lend books from its stores for a low price, would that
eliminate the need for libraries? Only if you think that the only role
-of a library is to serve what "the market" would demand. But if you
+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.
</para>
+<indexterm startref='idxarchivesdigital2' class='endofrange'/>
<para>
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
commercial market, if access is a value, then 6 percent is a failure
to provide that value.<footnote><para>
<!-- f13. -->
-Jason Schultz, "The Myth of the 1976 Copyright `Chaos' Theory," 20
+Jason Schultz, <quote>The Myth of the 1976 Copyright `Chaos' Theory,</quote> 20
December 2002, available at
<ulink url="http://free-culture.cc/notes/">link #54</ulink>.
</para></footnote>
district court in Washington, D.C., asking the court to declare the
Sonny Bono Copyright Term Extension Act unconstitutional. The two
central claims that we made were (1) that extending existing terms
-violated the Constitution's "limited Times" requirement, and (2) that
+violated the Constitution's <quote>limited Times</quote> requirement, and (2) that
extending terms by another twenty years violated the First Amendment.
</para>
<para>
</para>
<para>
Judge David Sentelle said the CTEA violated the requirement that
-copyrights be for "limited Times" only. His argument was as elegant as
+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
-"stopping point" to Congress's power under the Copyright Clause. The
+<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 "limited." Thus, Judge Sentelle argued, the court had
-to interpret the term "limited Times" to give it meaning. And the best
+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.
</para>
We asked the Court of Appeals for the D.C. Circuit as a whole to
hear the case. Cases are ordinarily heard in panels of three, except for
important cases or cases that raise issues specific to the circuit as a
-whole, where the court will sit "en banc" to hear the case.
+whole, where the court will sit <quote>en banc</quote> to hear the case.
</para>
+<indexterm><primary>Tatel, David</primary></indexterm>
<para>
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
Stewart was the first, but then Dan Bromberg and Don Ayer became
quite involved. Bromberg and Ayer in particular had a common view
about how this case would be won: We would only win, they repeatedly
-told me, if we could make the issue seem "important" to the Supreme
+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 "the
-most powerful media companies in the world."
+speech and free culture; otherwise, they would never vote against <quote>the
+most powerful media companies in the world.</quote>
</para>
<para>
I hate this view of the law. Of course I thought the Sonny Bono Act
was a dramatic harm to free speech and free culture. Of course I still
think it is. But the idea that the Supreme Court decides the law based
on how important they believe the issues are is just wrong. It might be
-"right" as in "true," I thought, but it is "wrong" as in "it just shouldn't be
-that way." As I believed that any faithful interpretation of what the
+<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
very beginning. Mrs. Schlafly viewed the CTEA as a sellout by
Congress. In November 1998, she wrote a stinging editorial attacking
the Republican Congress for allowing the law to pass. As she wrote,
-"Do you sometimes wonder why bills that create a financial windfall to
+<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?" The answer, as the editorial documented, was the
+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.
spectrum. Their conclusions were powerful: There was no plausible
claim that extending the terms of existing copyrights would do
anything to increase incentives to create. Such extensions were
-nothing more than "rent-seeking"—the fancy term economists use
+nothing more than <quote>rent-seeking</quote>—the fancy term economists use
to describe special-interest legislation gone wild.
</para>
<para>
<indexterm><primary>Fried, Charles</primary></indexterm>
<indexterm><primary>Morrison, Alan</primary></indexterm>
<indexterm><primary>Public Citizen</primary></indexterm>
+<indexterm><primary>Reagan, Ronald</primary></indexterm>
</para>
<para>
Fried was a special victory for our side. Every other former solicitor
</para>
<para>
The government, in defending the statute, had its collection of
-friends, as well. Significantly, however, none of these "friends" included
+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.
better for the Dr. Seuss estate to control what happened to
Dr. Seuss's work— better than allowing it to fall into the
public domain—because if this creativity were in the public
-domain, then people could use it to "glorify drugs or to create
-pornography.
"<footnote><para>
+domain, then people could use it to <quote>glorify drugs or to create
+pornography.
</quote><footnote><para>
<!-- f14. -->
Brief of Amici Dr. Seuss Enterprise et al., <citetitle>Eldred</citetitle> v. <citetitle>Ashcroft</citetitle>, 537
U.S. (2003) (No. 01-618), 19.
</para></footnote>
That was also the motive of the Gershwin estate, which defended its
-"protection" of the work of George Gershwin. They refuse, for example,
+<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.<footnote><para>
<!-- f15. -->
-Dinitia Smith, "Immortal Words, Immortal Royalties? Even Mickey
-Mouse Joins the Fray," <citetitle>New York Times</citetitle>, 28 March 1998, B7.
+Dinitia Smith, <quote>Immortal Words, Immortal Royalties? Even Mickey
+Mouse Joins the Fray,</quote> <citetitle>New York Times</citetitle>, 28 March 1998, B7.
</para></footnote>
That's
<!-- PAGE BREAK 241 -->
debate. When Congress decides to extend the term of existing
copyrights, Congress is making a choice about which speakers it will
favor. Famous and beloved copyright owners, such as the Gershwin
-estate and Dr. Seuss, come to Congress and say, "Give us twenty years
+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." Congress of course likes to reward
+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.
Between February and October, there was little I did beyond preparing
for this case. Early on, as I said, I set the strategy.
</para>
+<indexterm><primary>Rehnquist, William H.</primary></indexterm>
+<indexterm><primary>O'Connor, Sandra Day</primary></indexterm>
<para>
-The Supreme Court was divided into two important camps. One
-camp we called "the Conservatives." The other we called "the Rest."
-The Conservatives included Chief Justice Rehnquist, Justice O'Connor,
+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.
+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.
</para>
<indexterm><primary>Breyer, Stephen</primary></indexterm>
<para>
generally. We were fairly confident he would recognize limits here.
</para>
<para>
-This analysis of "the Rest" showed most clearly where our focus
-had to be: on the Conservatives. To win this case, we had to crack open
-these five and get at least a majority to go our way. Thus, the single
- overriding
-argument that animated our claim rested on the Conservatives'
-most important jurisprudential innovation—the argument that Judge
-Sentelle had relied upon in the Court of Appeals, that Congress's power
-must be interpreted so that its enumerated powers have limits.
+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.
</para>
<para>
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>
-
<!-- PAGE BREAK 243 -->
case, under the government's argument here, Congress would always have
unlimited power to extend existing terms. If anything was plain about
Congress's power under the Progress Clause, it was that this power was
-supposed to be "limited." Our aim would be to get the Court to
-reconcile <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.
+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.
</para>
<para>
The argument on the government's side came down to this: Congress has
</para>
<para>
There was some truth to the government's claim, but not much. We
-certainly agreed that Congress had extended existing terms in
+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.
</para>
<para>
-But this "consistency" should be kept in perspective. Congress
+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
Oral argument was scheduled for the first week in October. I
arrived
in D.C. two weeks before the argument. During those two
-weeks, I was repeatedly "mooted" by lawyers who had volunteered to
+weeks, I was repeatedly <quote>mooted</quote> by lawyers who had volunteered to
<!-- PAGE BREAK 244 -->
-help in the case. Such "moots" are basically practice rounds, where
+help in the case. Such <quote>moots</quote> are basically practice rounds, where
wannabe justices fire questions at wannabe winners.
</para>
<para>
this central idea.
</para>
<indexterm><primary>Ayer, Don</primary></indexterm>
+<indexterm><primary>Reagan, Ronald</primary></indexterm>
<para>
One moot was before the lawyers at Jones Day. Don Ayer was the
skeptic. He had served in the Reagan Justice Department with Solicitor
<indexterm><primary>Fried, Charles</primary></indexterm>
</para>
<para>
-"I'm just afraid that unless they really see the harm, they won't be
+<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."
+don't see that, then we haven't any chance of winning.</quote>
</para>
<indexterm><primary>Ayer, Don</primary></indexterm>
<para>
power. This was a case about enumerated powers, I said, and whether
those enumerated powers had any limit.
</para>
+<indexterm><primary>O'Connor, Sandra Day</primary></indexterm>
<para>
Justice O'Connor stopped me within one minute of my opening.
The history was bothering her.
</para>
</blockquote>
<para>
-She was quite willing to concede "that this flies directly in the face
-of what the framers had in mind." But my response again and again
+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.
</para>
<blockquote>
into the Copyright Clause.
</para>
</blockquote>
+<indexterm><primary>Olson, Theodore B.</primary></indexterm>
<para>
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
percent of the value of a perpetual term. Breyer said we were wrong,
that the actual number was 99.9997 percent of a perpetual term. Either
way, the point was clear: If the Constitution said a term had to be
-"limited," and the existing term was so long as to be effectively
+<quote>limited,</quote> and the existing term was so long as to be effectively
unlimited, then it was unconstitutional.
</para>
<para>
depression gives way to anger. My anger came quickly, but it didn't cure
the depression. This anger was of two sorts.
</para>
+<indexterm><primary>originalism</primary></indexterm>
<para>
-It was first anger with the five "Conservatives." It would have been
+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 "originalism"—to
+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 "originalist" rulings. Where was their
-"originalism" now?
+<citetitle>Lopez</citetitle> and many other <quote>originalist</quote> rulings. Where was their
+<quote>originalism</quote> now?
</para>
<para>
Here, they had joined an opinion that never once tried to explain
And even if I couldn't, then that doesn't excuse what happened in
January. For at the start of this case, one of America's leading
intellectual property professors stated publicly that my bringing this
-case was a mistake. "The Court is not ready," Peter Jaszi said; this
+case was a mistake. <quote>The Court is not ready,</quote> Peter Jaszi said; this
issue should not be raised until it is.
<indexterm><primary>Jaszi, Peter</primary></indexterm>
</para>
The best responses were in the cartoons. There was a gaggle of
hilarious images—of Mickey in jail and the like. The best, from
my view of the case, was Ruben Bolling's, reproduced on the next page
-(<xref linkend="fig-18"/>). The "powerful and wealthy" line is a bit
+(<xref linkend="fig-18"/>). The <quote>powerful and wealthy</quote> line is a bit
unfair. But the punch in the face felt exactly like that.
<indexterm><primary>Bolling, Ruben</primary></indexterm>
</para>
</figure>
<para>
The image that will always stick in my head is that evoked by the
-quote from <citetitle>The New York Times</citetitle>. That "grand experiment" we call the
-"public domain" is over? When I can make light of it, I think, "Honey,
-I shrunk the Constitution." But I can rarely make light of it. We had
+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.
Francisco to Washington, I had heard over and over again in my head
the same advice from Don Ayer: You need to make them see why it is
important. And alternating with that command was the question of
-Justice Kennedy: "For all these years the act has impeded progress in
+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." And so, having failed in the argument of constitutional principle,
+that.</quote> And so, having failed in the argument of constitutional principle,
finally, I turned to an argument of politics.
</para>
<para>
</para>
<para>
Or another two names. For depending upon your perspective, this
-is either the "Public Domain Enhancement Act" or the "Copyright
-Term Deregulation Act." Either way, the essence of the idea is clear
+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
legislation sometimes made protection depend upon compliance with
formalities such as registration, deposit, and affixation of notice of
the author's claim of copyright. However, starting with the 1908 act,
-every text of the Convention has provided that "the enjoyment and the
-exercise" of rights guaranteed by the Convention "shall not be subject
-to any formality." The prohibition against formalities is presently
+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
anonymous or pseudonymous works. Paul Goldstein, <citetitle>International
Intellectual Property Law, Cases and Materials</citetitle> (New York: Foundation
Press, 2001), 153–54. </para></footnote>
-The Europeans are said to view copyright as a "natural right." Natural
+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
That's great rhetoric. It sounds wonderfully romantic. But it is
absurd copyright policy. It is absurd especially for authors, because
a world without formalities harms the creator. The ability to spread
-"Walt Disney creativity" is destroyed when there is no simple way to
+<quote>Walt Disney creativity</quote> is destroyed when there is no simple way to
know what's protected and what's not.
</para>
<indexterm><primary>Berne Convention (1908)</primary></indexterm>
<!-- PAGE BREAK 258 -->
should be a second-class form of property. If a carpenter builds a
table, his rights over the table don't depend upon filing a form with
-the government. He has a property right over the table "naturally,"
+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.
<para>
This was the understanding of the problem with the Sonny Bono
Act that we tried to demonstrate to the Court. This was the part it
-didn't "get." Because we live in a system without formalities, there is no
+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, "short," then this
+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.
the bill drafted. The draft solved any problem with international
law. It imposed the simplest requirement upon copyright owners
possible. In May 2003, it looked as if the bill would be
-introduced. On May 16, I posted on the Eldred Act blog, "we are
-close." There was a general reaction in the blog community that
+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.
<indexterm><primary>Lofgren, Zoe</primary></indexterm>
</para>
thinness shows something clear about what this debate is really about.
</para>
<para>
-The MPAA argued first that Congress had "firmly rejected the central
-concept in the proposed bill"—that copyrights be renewed. That
-was true, but irrelevant, as Congress's "firm rejection" had occurred
+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
<!-- PAGE BREAK 261 -->
long before the Internet made subsequent uses much more likely.
Second, they argued that the proposal would harm poor copyright
percentage of work covered by copyright law that is still commercially
valuable, but again this was irrelevant, as the proposal would not cut
off the extended term unless the $1 fee was not paid. Fourth, the MPAA
-argued that the bill would impose "enormous" costs, since a
+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
selfinterest driving this war. This act would free an extraordinary
range of content that is otherwise unused. It wouldn't interfere with
any copyright owner's desire to exercise continued control over his
-content. It would simply liberate what Kevin Kelly calls the "Dark
-Content" that fills archives around the world. So when the warriors
+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:
<indexterm><primary>Kelly, Kevin</primary></indexterm>
</para>
<para>
The opposition to the Eldred Act reveals how extreme the other side
is. The most powerful and sexy and well loved of lobbies really has as
-its aim not the protection of "property" but the rejection of a
+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>.
</para>
<para>
All this seems to follow easily from this untroubled acceptance of the
-"property" in intellectual property. Common sense supports it, and so
+<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 "permission
-society." The past can be cultivated only if you can identify the
+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.
</para>
</part>
<chapter label="15" id="c-conclusion">
<title>CONCLUSION</title>
+<indexterm id="idxantiretroviraldrugs" class='startofrange'>
+ <primary>antiretroviral drugs</primary>
+</indexterm>
+<indexterm id="idxhivaidstherapies" class='startofrange'>
+ <primary>HIV/AIDS therapies</primary>
+</indexterm>
+<indexterm id="idxafricahivmed" class='startofrange'>
+ <primary>Africa, medications for HIV patients in</primary>
+</indexterm>
<para>
There are more than 35 million people with the AIDS virus
worldwide. Twenty-five million of them live in sub-Saharan Africa.
population:
$15,000 is thirty times the per capita gross national product of
Zimbabwe. At these prices, the drugs are totally unavailable.<footnote><para>
-<!-- f1. --> Commission on Intellectual Property Rights, "Final Report: Integrating
-Intellectual Property Rights and Development Policy" (London, 2002),
+<!-- f1. --> 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
importation of patented medicines that had been produced or sold in
another nation's market with the consent of the patent owner. For
example, if the drug was sold in India, it could be imported into
-Africa from India. This is called "parallel importation," and it is
+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.<footnote>
<para>
<para>
However, the United States government opposed the bill. Indeed, more
than opposed. As the International Intellectual Property Association
-characterized it, "The U.S. government pressured South Africa …
+characterized it, <quote>The U.S. government pressured South Africa …
not to permit compulsory licensing or parallel
-imports.
"<footnote><para>
+imports.
</quote><footnote><para>
<!-- f3. -->
International Intellectual Property Institute (IIPI), <citetitle>Patent
Protection and Access to HIV/AIDS Pharmaceuticals in Sub-Saharan
<!-- PAGE BREAK 267 -->
about the sanctity of property.<footnote><para>
<!-- f5. -->
-See Sabin Russell, "New Crusade to Lower AIDS Drug Costs: Africa's
-Needs at Odds with Firms' Profit Motive," <citetitle>San Francisco Chronicle</citetitle>, 24
+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>
-("compulsory licenses and gray markets pose a threat to the entire
-system of intellectual property protection"); Robert Weissman, "AIDS
+(<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," <citetitle>Foreign Policy in Focus</citetitle> 4:23 (August 1999), available at
+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, "TRIPS, Pharmaceutical
+(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," <citetitle>Widener Law
+Intellectual Property Rights and Compassion, a Synopsis,</quote> <citetitle>Widener Law
Symposium Journal</citetitle> (Spring 2001): 175.
<!-- PAGE BREAK 333 -->
</para></footnote>
-It was because "intellectual property" would be violated that these
+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 "intellectual property" that led these government actors
+importance of <quote>intellectual property</quote> that led these government actors
to intervene against the South African response to AIDS.
</para>
<para>
from now when our children look back at us and ask, how could we have
let this happen? How could we allow a policy to be pursued whose
direct cost would be to speed the death of 15 to 30 million Africans,
-and whose only real benefit would be to uphold the "sanctity" of an
+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?
<para>
A different problem, however, could not be overcome. This is the
fear of the grandstanding politician who would call the presidents of
-the drug companies before a Senate or House hearing, and ask, "How
+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?" Because there is no "sound
-bite" answer to that question, its effect would be to induce regulation
+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
<!-- PAGE BREAK 268 -->
sacred. They adopt a rational strategy in an irrational context, with the
unintended consequence that perhaps millions die. And that rational
strategy thus becomes framed in terms of this ideal—the sanctity of an
-idea called "intellectual property."
+idea called <quote>intellectual property.</quote>
</para>
<para>
So when the common sense of your child confronts you, what will
extremism. A certain property fundamentalism, having no connection to
our tradition, now reigns in this culture—bizarrely, and with
consequences more grave to the spread of ideas and culture than almost
-any other single policy decision that we as a democracy will make. A
-simple idea blinds us, and under the cover of darkness, much happens
+any other single policy decision that we as a democracy will make.
+</para>
+<indexterm startref="idxafricahivmed" class='endofrange'/>
+<indexterm startref="idxhivaidstherapies" class='endofrange'/>
+<indexterm startref="idxantiretroviraldrugs" class='endofrange'/>
+<para>
+A simple idea blinds us, and under the cover of darkness, much happens
that most of us would reject if any of us looked. So uncritically do
we accept the idea of property in ideas that we don't even notice how
monstrous it is to deny ideas to a people who are dying without
does not yet see what there could be to revolt about. The extremism
that now dominates this debate fits with ideas that seem natural, and
that fit is reinforced by the RCAs of our day. They wage a frantic war
-to fight "piracy," and devastate a culture for creativity. They defend
-the idea of "creative property," while transforming real creators into
+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 "perfect storm" for free culture.
+produce the <quote>perfect storm</quote> for free culture.
</para>
+<indexterm><primary>Reagan, Ronald</primary></indexterm>
+<indexterm id='idxbiomedicalresearch' class='startofrange'>
+ <primary>biomedical research</primary>
+</indexterm>
+<indexterm><primary>Wellcome Trust</primary></indexterm>
<para>
In August 2003, a fight broke out in the United States about a
decision by the World Intellectual Property Organization to cancel a
meeting.<footnote><para>
-<!-- f6. --> Jonathan Krim, "The Quiet War over Open-Source," <citetitle>Washington Post</citetitle>,
+<!-- f6. --> 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, "Global Group's
-Shift on `Open Source' Meeting Spurs Stir," <citetitle>National Journal's Technology
+<ulink url="http://free-culture.cc/notes/">link #59</ulink>; William New, <quote>Global Group's
+Shift on `Open Source' 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, "U.S. Official
-Opposes `Open Source' Talks at WIPO," <citetitle>National Journal's Technology
+<ulink url="http://free-culture.cc/notes/">link #60</ulink>; William New, <quote>U.S. Official
+Opposes `Open Source' 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>.
</para></footnote>
At the request of a wide range of interests, WIPO had decided to hold
-a meeting to discuss "open and collaborative projects to create public
-goods." These are projects that have been successful in producing
+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
Aventis, Bayer, Bristol-Myers Squibb, Hoffmann-La Roche,
Glaxo-SmithKline, IBM, Motorola, Novartis, Pfizer, and Searle.) It
included the Global Positioning System, which Ronald Reagan set free
-in the early 1980s. And it included "open source and free software."
+in the early 1980s. And it included <quote>open source and free software.</quote>
<indexterm><primary>academic journals</primary></indexterm>
<indexterm><primary>IBM</primary></indexterm>
<indexterm><primary>PLoS (Public Library of Science)</primary></indexterm>
</para>
+<indexterm startref='idxbiomedicalresearch' class='endofrange'/>
<para>
The aim of the meeting was to consider this wide range of projects
from one common perspective: that none of these projects relied upon
prepared, I had actually made the issue of intellectual property
relatively minor. But after this astonishing statement, I made
intellectual property the sole focus of my talk. There was no way to
-talk about an "Information Society" unless one also talked about the
+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
<para>
So whether or not WSIS can discuss balance in intellectual property, I
had thought it was taken for granted that WIPO could and should. And
-thus the meeting about "open and collaborative projects to create
-public goods" seemed perfectly appropriate within the WIPO agenda.
+thus the meeting about <quote>open and collaborative projects to create
+public goods</quote> seemed perfectly appropriate within the WIPO agenda.
</para>
<para>
But there is one project within that list that is highly
-controversial, at least among lobbyists. That project is "open source
-and free software." Microsoft in particular is wary of discussion of
+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 "proprietary software," for their own internal uses.
+rather than <quote>proprietary software,</quote> for their own internal uses.
</para>
<para>
I don't mean to enter that debate here. It is important only to
noncommercial software. There are many important companies that depend
fundamentally upon open source and free software, IBM being the most
prominent. IBM is increasingly shifting its focus to the GNU/Linux
-operating system, the most famous bit of "free software"—and IBM
-is emphatically a commercial entity. Thus, to support "open source and
-free software" is not to oppose commercial entities. It is, instead,
+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.<footnote><para>
<!-- f8. -->
Microsoft's position about free and open source software is more
sophisticated. As it has repeatedly asserted, it has no problem with
-"open source" software or software in the public domain. Microsoft's
-principal opposition is to "free software" licensed under a "copyleft"
+<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, "The Future
-of Software: Enabling the Marketplace to Decide," <citetitle>Government Policy
+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 #63</ulink>.
</para></footnote>
<indexterm><primary>IBM</primary></indexterm>
-<indexterm><primary>"copyleft" licenses</primary></indexterm>
+<indexterm><primary><quote>copyleft</quote> licenses</primary></indexterm>
<indexterm><primary>GNU/Linux operating system</primary></indexterm>
<indexterm><primary>Linux operating system</primary></indexterm>
</para>
<para>
-More important for our purposes, to support "open source and free
-software" is not to oppose copyright. "Open source and free software"
+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
<citetitle>Washington Post</citetitle>, Microsoft's lobbyists succeeded in getting the United
States government to veto the meeting.<footnote><para>
<!-- f9. -->
-Krim,
"The Quiet War over Open-Source," available at <ulink
+Krim,
<quote>The Quiet War over Open-Source,</quote> available at <ulink
url="http://free-culture.cc/notes/">link #64</ulink>.
</para></footnote>
And without U.S. backing, the meeting was canceled.
What was surprising was the United States government's reason for
opposing the meeting. Again, as reported by Krim, Lois Boland, acting
director of international relations for the U.S. Patent and Trademark
-Office, explained that "open-source software runs counter to the
-mission of WIPO, which is to promote intellectual-property rights."
-She is quoted as saying, "To hold a meeting which has as its purpose
+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."
+goals of WIPO.</quote>
</para>
<para>
These statements are astonishing on a number of levels.
<para>
First, they are just flat wrong. As I described, most open source and
free software relies fundamentally upon the intellectual property
-right called "copyright". Without it, restrictions imposed by those
-licenses wouldn't work. Thus, to say it "runs counter" to the mission
+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.
</para>
<para>
-Second, who ever said that WIPO's exclusive aim was to "promote"
+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 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 "waive" or
-"disclaim" their rights, that is, within our tradition, totally
+<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
</para>
<para>
When Ms. Boland says that there is something wrong with a meeting
-"which has as its purpose to disclaim or waive such rights," she's
+<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
<!-- PAGE BREAK 274 -->
the individuals who own intellectual property rights. That somehow,
-WIPO's objective should be to stop an individual from "waiving" or
-"disclaiming" an intellectual property right. That the interest of
+WIPO'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.
</para>
<para>
There is a history of just such a property system that is well known
-in the Anglo-American tradition. It is called "feudalism." Under
+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
<blockquote>
<para>
George, you misunderstand Lessig: He's only talking about the world as
-it should be ("the goal of WIPO, and the goal of any government,
+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"), not as it is. If
+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
<!-- PAGE BREAK 275 -->
<para>
Obviously, however, the poster was not supporting that idea. Instead,
the poster was ridiculing the very idea that in the real world, the
-"goal" of a government should be "to promote the right balance" of
+<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. "Typical for
-an academic," the poster might well have continued.
+obviously betrayed, he believed, my own silly utopianism. <quote>Typical for
+an academic,</quote> the poster might well have continued.
</para>
<para>
I understand criticism of academic utopianism. I think utopianism is
</para>
<para>
But when it has become silly to suppose that the role of our
-government should be to "seek balance," then count me with the silly,
+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
been part of our tradition for most of our history—free culture.
</para>
<indexterm><primary>CodePink Women in Peace</primary></indexterm>
+<indexterm><primary>Safire, William</primary></indexterm>
+<indexterm><primary>Turner, Ted</primary></indexterm>
<para>
If this is crazy, then let there be more crazies. Soon. There are
moments of hope in this struggle. And moments that surprise. When the
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.
-<indexterm><primary>Turner, Ted</primary></indexterm>
-<indexterm><primary>Safire, William</primary></indexterm>
</para>
<para>
This activism did not stop the FCC, but soon after, a broad coalition
It is therefore significant that so many would rally to demand
competition and increased diversity. Still, if the rally is understood
as being about bigness alone, it is not terribly surprising. We
-Americans have a long history of fighting "big," wisely or not. That
-we could be motivated to fight "big" again is not something new.
+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.
</para>
<para>
It would be something new, and something very important, if an equal
number could be rallied to fight the increasing extremism built within
-the idea of "intellectual property." Not because balance is alien to
+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 "property" is not well exercised within this tradition anymore.
+called <quote>property</quote> is not well exercised within this tradition anymore.
</para>
<para>
If we were Achilles, this would be our heel. This would be the place
As I write these final words, the news is filled with stories about
the RIAA lawsuits against almost three hundred individuals.<footnote><para>
<!-- f11. -->
-John Borland, "RIAA Sues 261 File Swappers," CNET News.com, September
+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, "Music Industry Sues Swappers," CNN/Money, 8 September
+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, "Sued for a Song,
-N.Y.C. 12-Yr-Old Among 261 Cited as Sharers," <citetitle>New York Daily News</citetitle>, 9
-September 2003, 3; Frank Ahrens, "RIAA's Lawsuits Meet Surprised
+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," <citetitle>Washington Post</citetitle>, 10 September 2003, E1; Katie Dean,
-"Schoolgirl Settles with RIAA," <citetitle>Wired News</citetitle>, 10 September 2003,
+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>.
</para></footnote>
-Eminem has just been sued for "sampling" someone else's
+Eminem has just been sued for <quote>sampling</quote> someone else's
music.<footnote><para>
<!-- f12. -->
-Jon Wiederhorn, "Eminem Gets Sued … by a Little Old Lady,"
+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>.
</para></footnote>
-The story about Bob Dylan "stealing" from a Japanese author has just
+The story about Bob Dylan <quote>stealing</quote> from a Japanese author has just
finished making the rounds.<footnote><para>
<!-- f13. -->
-Kenji Hall, Associated Press, "Japanese Book May Be Inspiration for
-Dylan Songs," Kansascity.com, 9 July 2003, available at
+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>.
<!-- PAGE BREAK 334 -->
</para></footnote>
An insider from Hollywood—who insists he must remain
-anonymous—reports "an amazing conversation with these studio
+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." Congressmen are
+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.
<indexterm><primary>Causby, Tinie</primary></indexterm>
<indexterm><primary>Creative Commons</primary></indexterm>
<indexterm><primary>Gil, Gilberto</primary></indexterm>
+<indexterm><primary>BBC</primary></indexterm>
+<indexterm><primary>Brazil, free culture in</primary></indexterm>
<para>
Yet on the other side of the Atlantic, the BBC has just announced
-that it will build a "Creative Archive," from which British citizens can
+that it will build a <quote>Creative Archive,</quote> from which British citizens can
download BBC content, and rip, mix, and burn it.<footnote><para>
-<!-- f14. --> "BBC Plans to Open Up Its Archive to the Public," BBC press release,
+<!-- f14. --> <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>.
</para></footnote>
content and free licenses in that Latin American
country.<footnote><para>
<!-- f15. -->
-"Creative Commons and Brazil," Creative Commons Weblog, 6 August 2003,
+<quote>Creative Commons and Brazil,</quote> Creative Commons Weblog, 6 August 2003,
available at
<ulink url="http://free-culture.cc/notes/">link #71</ulink>.
</para></footnote>
<para>
The mistake here is the error of the excluded middle. There are
extremes in this debate, but the extremes are not all that there
-is. There are those who believe in maximal copyright—"All Rights
-Reserved"— and those who reject copyright—"No Rights
-Reserved." The "All Rights Reserved" sorts believe that you should ask
-permission before you "use" a copyrighted work in any way. The "No
-Rights Reserved" sorts believe you should be able to do with content
+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.
</para>
<para>
When the Internet was first born, its initial architecture effectively
-tilted in the "no rights reserved" direction. Content could be copied
+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
<!-- PAGE BREAK 282 -->
-original design of the Internet was "no rights reserved." Content was
-"taken" regardless of the rights. Any rights were effectively
+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.
</para>
<para>
book. Through legislation, litigation, and changes to the network's
design, copyright holders have been able to change the essential
character of the environment of the original Internet. If the original
-architecture made the effective default "no rights reserved," the
-future architecture will make the effective default "all rights
-reserved." The architecture and law that surround the Internet's
+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 "cut and paste" world that defines
-the Internet today will become a "get permission to cut and paste"
+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.
</para>
<para>
What's needed is a way to say something in the middle—neither
-"all rights reserved" nor "no rights reserved" but "some rights
-reserved"— and thus a way to respect copyrights but enable
+<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.
about data about our lives that we broadcast to the world. If you
walked into a bookstore and browsed through some of the works of Karl
Marx, you didn't need to worry about explaining your browsing habits
-to your neighbors or boss. The "privacy" of your browsing habits was
+to your neighbors or boss. The <quote>privacy</quote> of your browsing habits was
assured.
</para>
<para>
us (again, we can hope), spying doesn't pay. The highly inefficient
architecture of real space means we all enjoy a fairly robust amount
of privacy. That privacy is guaranteed to us by friction. Not by law
-(there is no law protecting "privacy" in public places), and in many
+(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.
</para>
has become quite tiny. If you're a customer at Amazon, then as you
browse the pages, Amazon collects the data about what you've looked
at. You know this because at the side of the page, there's a list of
-"recently viewed" pages. Now, because of the architecture of the Net
+<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 "privacy"
+data than not. The friction has disappeared, and hence any <quote>privacy</quote>
protected by the friction disappears, too.
<indexterm><primary>cookies, Internet</primary></indexterm>
</para>
<para>
Amazon, of course, is not the problem. But we might begin to worry
about libraries. If you're one of those crazy lefties who thinks that
-people should have the "right" to browse in a library without the
+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
disappears.
</para>
<para>
-It is this reality that explains the push of many to define "privacy"
+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.<footnote><para>
<!-- f1. -->
-See, for example, Marc Rotenberg, "Fair Information Practices and the
-Architecture of Privacy (What Larry Doesn't Get)," <citetitle>Stanford Technology
+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>
it, then the freedom to change and share software would be
fundamentally weakened.
</para>
+<indexterm><primary>Torvalds, Linus</primary></indexterm>
<para>
Therefore, in 1984, Stallman began a project to build a free operating
system, so that at least a strain of free software would survive. That
-was the birth of the GNU project, into which Linus Torvalds's "Linux"
+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.
<indexterm><primary>GNU/Linux operating system</primary></indexterm>
<indexterm><primary>Linux operating system</primary></indexterm>
The same strategy could be applied to culture, as a response to the
increasing control effected through law and technology.
</para>
+<indexterm><primary>Stanford University</primary></indexterm>
<para>
Enter the Creative Commons. The Creative Commons is a nonprofit
corporation established in Massachusetts, but with its home at
Creative Commons license constitutes a grant of freedom to anyone who
accesses the license, and more importantly, an expression of the ideal
that the person associated with the license believes in something
-different than the "All" or "No" extremes. Content is marked with the
+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.
</para>
creator can choose a license that permits any use, so long as
attribution is given. She can choose a license that permits only
noncommercial use. She can choose a license that permits any use so
-long as the same freedoms are given to other uses ("share and share
-alike"). Or any use so long as no derivative use is made. Or any use
+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.
</para>
domain or in getting legislators to help build a public domain. Our
aim is to build a movement of consumers and producers
<!-- PAGE BREAK 289 -->
-of content ("content conducers," as attorney Mia Garlick calls them)
+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.
<indexterm><primary>Garlick, Mia</primary></indexterm>
</para>
<para>
-The aim is not to fight the "All Rights Reserved" sorts. The aim is to
+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
<indexterm><primary>Free for All (Wayner)</primary></indexterm>
<indexterm><primary>Wayner, Peter</primary></indexterm>
</para>
+<indexterm><primary>Public Enemy</primary></indexterm>
+<indexterm><primary>rap music</primary></indexterm>
<para>
These are examples of using the Commons to better spread proprietary
content. I believe that is a wonderful and common use of the
Commons. There are others who use Creative Commons licenses for other
-reasons. Many who use the "sampling license" do so because anything
+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
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 "allow"
+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<footnote><para>
<!-- f2. -->
Finally, there are many who mark their content with a Creative Commons
license just because they want to express to others the importance of
balance in this debate. If you just go along with the system as it is,
-you are effectively saying you believe in the "All Rights Reserved"
+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 "Some Rights Reserved," and gives many the chance to
+this notion of <quote>Some Rights Reserved,</quote> and gives many the chance to
say it to others.
</para>
<para>
In contrast, under current copyright law, you automatically get a
copyright, regardless of whether you comply with any formality. You
don't have to register. You don't even have to mark your content. The
-default is control, and "formalities" are banished.
+default is control, and <quote>formalities</quote> are banished.
</para>
<para>
Why?
solved here. In my view, the law of derivatives creates a more complicated
system than is justified by the marginal incentive it creates.
</para></footnote>
-The meaning of an unmarked work would therefore be "use unless someone
-complains." If someone does complain, then the obligation would be to
+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
<!-- PAGE BREAK 296 -->
work from then on though no penalty would attach for existing uses.
copyright term.<footnote><para>
<!-- f3. -->
-"A Radical Rethink," <citetitle>Economist</citetitle>, 366:8308 (25 January 2003): 15,
+<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>.
</para></footnote>
<!-- (2) -->
<emphasis>Keep it simple:</emphasis> The line between the public
domain and protected content must be kept clear. Lawyers like the
-fuzziness of "fair use," and the distinction between "ideas" and
-"expression." That kind of law gives them lots of work. But our
+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
-"lawyer-free zone" makes the complexities of "fair use" and
-"idea/expression" less necessary to navigate.
+<quote>lawyer-free zone</quote> makes the complexities of <quote>fair use</quote> and
+<quote>idea/expression</quote> less necessary to navigate.
<!-- PAGE BREAK 298 -->
</para></listitem>
<listitem><para>
same.
</para>
<para>
-No doubt the extremists will call these ideas "radical." (After all, I
-call them "extremists.") But again, the term I recommended was longer
-than the term under Richard Nixon. How "radical" can it be to ask for
+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?
</para>
</section>
<section id="freefairuse">
<title>3. Free Use Vs. Fair Use</title>
+<indexterm><primary>land ownership, air traffic and</primary></indexterm>
+<indexterm>
+ <primary>property rights</primary>
+ <secondary>air traffic vs.</secondary>
+</indexterm>
<para>
As I observed at the beginning of this book, property law originally
granted property owners the right to control their property from the
the emergence of that new technology.
</para>
<para>
-Our Constitution gives Congress the power to give authors "exclusive
-right" to "their writings." Congress has given authors an exclusive
-right to "their writings" plus any derivative writings (made by
+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 "my writing."
+though that movie is not <quote>my writing.</quote>
</para>
<para>
Congress granted the beginnings of this right in 1870, when it
rights be narrowed. Again, there are some cases in which derivative
rights are important. Those should be specified. But the law should
draw clear lines around regulated and unregulated uses of copyrighted
-material. When all "reuse" of creative material was within the control
+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
machines. That's what this general requirement of permission does to
the creative process. Smothers it.
</para>
+<indexterm><primary>Alben, Alex</primary></indexterm>
<para>
This was the point that Alben made when describing the making of the
Clint Eastwood CD. While it makes sense to require negotiation for
Internet. Imagine the Internet as ubiquitous as the best cell-phone
service, where with the flip of a device, you are connected.
</para>
+<indexterm><primary>cell phones, music streamed over</primary></indexterm>
<para>
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,
services charge money for the content they give access to. Already
cell-phone services in Japan offer music (for a fee) streamed over
cell phones (enhanced with plugs for headphones). The Japanese are
-paying for this content even though "free" content is available in the
+paying for this content even though <quote>free</quote> content is available in the
form of MP3s across the Web.<footnote><para>
<!-- f8. -->
-See, for example, "Music Media Watch," The J@pan Inc. Newsletter, 3
+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>.
</para></footnote>
</para>
<para>
This point about the future is meant to suggest a perspective on the
-present: It is emphatically temporary. The "problem" with file
+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 "solving" this problem in light of a technology
+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
and twenty-first-century technologies.
</para>
<para>
-The answer begins with recognizing that there are different "problems"
+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
-"problem" with this content is to make sure that the technology that
+<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
order to eliminate kidnapping.
</para>
<para>
-Type C content raises a different "problem." This is content that was,
+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
owner when someone reads or buys an out-of-print book. That makes
total sense, of course, since any other system would be so burdensome
as to eliminate the possibility of used book stores' existing. But
-from the author's perspective, this "sharing" of his content without
+from the author's perspective, this <quote>sharing</quote> of his content without
his being compensated is less than ideal.
</para>
<para>
The model of used book stores suggests that the law could simply deem
out-of-print music fair game. If the publisher does not make copies of
the music available for sale, then commercial and noncommercial
-providers would be free, under this rule, to "share" that content,
+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.
floated by Harvard law professor William Fisher.<footnote>
<para>
<!-- f9. -->
+<indexterm id='idxartistspayments3' class='startofrange'>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
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
<ulink url="http://free-culture.cc/notes/">link #78</ulink>. Professor
Netanel has proposed a related idea that would exempt noncommercial
sharing from the reach of copyright and would establish compensation
-to artists to balance any loss. See Neil Weinstock Netanel, "Impose a
-Noncommercial Use Levy to Allow Free P2P File Sharing," available at
-<ulink url="http://free-culture.cc/notes/">link #79</ulink>. For other proposals, see Lawrence Lessig, "Who's Holding Back
-Broadband?" <citetitle>Washington Post</citetitle>, 8 January 2002, A17; Philip S. Corwin on
+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,
-"Kazaa, Verizon Propose to Pay Artists Directly," <citetitle>USA Today</citetitle>, 13 May
+<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, "Getting Copyright Right,"
+<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, "Verizon's Copyright Campaign," CNET News.com, 27 August
+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
<indexterm><primary>Fisher, William</primary></indexterm>
<indexterm><primary>Netanel, Neil Weinstock</primary></indexterm>
<indexterm><primary>Promises to Keep (Fisher)</primary></indexterm>
+<indexterm startref='idxartistspayments3' class='endofrange'/>
</para></footnote>
Fisher suggests a very clever way around the current impasse of the
Internet. Under his plan, all content capable of digital transmission
controlling access.
<indexterm><primary>Promises to Keep (Fisher)</primary></indexterm>
</para>
+<indexterm>
+ <primary>artists</primary>
+ <secondary>recording industry payments to</secondary>
+</indexterm>
<para>
Fisher would balk at the idea of allowing the system to lapse. His aim
is not just to ensure that artists are paid, but also to ensure that
-the system supports the widest range of "semiotic democracy"
+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
semiotic democracy if there were few limitations on what one was
allowed to do with the content itself.
</para>
+<indexterm><primary>Real Networks</primary></indexterm>
<para>
No doubt it would be difficult to calculate the proper measure of
-"harm" to an industry. But the difficulty of making that calculation
+<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 "free" by being
+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
there will be a great deal of competition to offer and sell music
on-line.
</para>
+<indexterm><primary>Asia, commercial piracy in</primary></indexterm>
<para>
-This competition has already occurred against the background of "free"
+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 "competing with free."
+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 "first class" seats, and meals
+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 "free."
+finding ways to compete with <quote>free.</quote>
</para>
<para>
This regime of competition, with a backstop to assure that artists
</para></listitem>
</orderedlist>
<para>
-But what if "piracy" doesn't disappear? What if there is a competitive
+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 "take" content for nothing? Should the law do
+consumers continue to <quote>take</quote> content for nothing? Should the law do
something then?
</para>
<para>
</para>
<para>
The evidence of this bending is compelling. I'm attacked as a
-"radical" by many within the profession, yet the positions that I am
+<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
dominant scholar and practitioner in the field of copyright, Melville
Nimmer, thought it obvious.<footnote><para>
<!-- f10. -->
-Lawrence Lessig, "Copyright's First Amendment" (Melville B. Nimmer
+Lawrence Lessig, <quote>Copyright's First Amendment</quote> (Melville B. Nimmer
Memorial Lecture), <citetitle>UCLA Law Review</citetitle> 48 (2001): 1057, 1069–70.
</para></footnote>
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,
-"Will MP3s Annihilate the Record Industry?" working paper, June 2003,
+<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
what the law will too often do if too much of our culture is left to
its review.
</para>
+<indexterm><primary>Brezhnev, Leonid</primary></indexterm>
<para>
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
<!-- PAGE BREAK 311 -->
rarely test their power, or the power they promote, against this
-simple pragmatic question: "Will it do good?" When challenged about
-the expanding reach of the law, the lawyer answers, "Why not?"
+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>
</para>
<para>
-We should ask, "Why?" Show me why your regulation of culture is
+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.
</para>
disappeared, you will be redirected to an appropriate reference for
the material.
</para>
-<!-- PAGE BREAK 336 -->
+<!--PAGE BREAK 336-->
</chapter>
<chapter label="18" id="c-acknowledgments">
work helped launch a movement, the free culture movement, and it is
to him that this book is dedicated.
</para>
+<indexterm><primary>Rose, Mark</primary></indexterm>
<para>
I received guidance in various places from friends and academics,
including Glenn Brown, Peter DiCola, Jennifer Mnookin, Richard Posner,
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
-<!-- PAGE BREAK 337 -->
+<!--PAGE BREAK 337-->
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
McMullen, Fred Norton, John Pormann, Pedro A. D. Rezende, Shabbir
Safdar, Saul Schleimer, Clay Shirky, Adam Shostack, Kragen Sitaker,
Chris Smith, Bruce Steinberg, Andrzej Jan Taramina, Sean Walsh, Matt
-Wasserman, Miljenko Williams, "Wink," Roger Wood, "Ximmbo da Jazz,"
+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.)
battles, and who has always been right. This slow learner is, as ever,
grateful for her perpetual patience and love.
</para>
-<!-- PAGE BREAK 338 -->
+<!--PAGE BREAK 338-->
</chapter>
<index></index>
projects / text-free-culture-lessig.git / blobdiff